Queensland: Disability Services Act 2006 (Qld)

Disability Services Act 2006 An Act to protect and promote the rights of people with disability, and for other purposes Part 1 Preliminary Division 1 Introduction 1 Short title This Act may be cited as the Disability Services Act 2006. 2 Commencement This Act commences on a day to be fixed by proclamation. 3 Act binds all persons (1) This Act binds all persons, including the State and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States. (2) Nothing in this Act makes the Commonwealth or a State liable to be prosecuted for an offence. 4 Contravention of this Act does not create civil cause of action No provision of this Act creates a civil cause of action based on a contravention of the provision. 5 Act does not affect other rights or remedies (1) This Act, other than sections 189, 190, 218, 219, 251 to 253 and 255, does not affect or limit a civil right or remedy that exists apart from this Act, whether at common law or otherwise. (2) Without limiting subsection (1), compliance with this Act does not necessarily show that a civil obligation that exists apart from this Act has been satisfied or has not been breached. Division 2 Objects 6 Objects of Act (1) The objects of this Act are— (a) to acknowledge the rights of people with disability including by promoting their inclusion in the life of the community generally; and (b) to ensure that disability services funded by the department are safe, accountable and respond to the needs of people with disability; and (c) to support the operation of the national disability insurance scheme in Queensland and ensure the quality and safety of NDIS supports or services in the context of the national regulatory framework; and (d) to safeguard the rights of adults with an intellectual or cognitive disability including by regulating the use of restrictive practices by relevant service providers in relation to those adults— (i) only where it is necessary to protect a person from harm; and (ii) with the aim of reducing or eliminating the need for use of the restrictive practices. (2) In this section— national regulatory framework means the national regulatory framework for service providers established under the National Disability Insurance Scheme Act 2013 (Cwlth). 7 How objects are mainly achieved The objects are mainly achieved by— (a) stating the human rights principle and supporting rights applying to people with disability; and (b) stating the principles for service delivery to people with disability to be promoted by service providers; and (c) regulating disability services funded by the department to ensure the quality, safety, responsiveness and accountability of the services; and (d) regulating particular aspects of the provision of NDIS supports or services by particular NDIS service providers under the National Disability Insurance Scheme Act 2013 (Cwlth) to ensure the quality and safety of the supports or services; and (e) helping to protect people with disability using services funded by the department from abuse, neglect and exploitation; and (f) stating the circumstances in which relevant service providers are authorised to use restrictive practices in relation to adults with an intellectual or cognitive disability. 8 Finite resources available In administering this Act, regard must be had to the following— (a) the State has finite resources available to provide services to people with disability; (b) there is a need to distribute the resources fairly having regard to the State's priorities. Division 3 Interpretation 9 Definitions The dictionary in schedule 8 defines particular words used in this Act. 10 [Repealed] 10A References to entity include department In this Act, a reference to an entity includes a reference to a department. 11 What is a disability (1) A disability is a person's condition that— (a) is attributable to— (i) an intellectual, psychiatric, cognitive, neurological, sensory or physical impairment; or (ii) a combination of impairments mentioned in subparagraph (i); and (b) results in— (i) a substantial reduction of the person's capacity for communication, social interaction, learning, mobility or self care or management; and (ii) the person needing support. (2) For subsection (1), the impairment may result from an acquired brain injury. (3) The disability must be permanent or likely to be permanent. (4) The disability may be, but need not be, of a chronic episodic nature. 12 What are disability services (1) Disability services, for people with disability, means 1 or more of the following— (a) accommodation support services; (b) respite services; (c) community support services; (d) community access; (e) advocacy or information services or services that provide alternative forms of communication; (f) research, training or development services; (g) another service prescribed by regulation. (2) However, disability services do not include NDIS supports or services. 12A What are NDIS supports or services NDIS supports or services are supports or services provided to a person with disability under the national disability insurance scheme, to the extent that providing the supports or services is funded by the payment of an NDIS amount under the National Disability Insurance Scheme Act 2013 (Cwlth). 13 Meaning of service provider (1) A service provider is an entity providing supports or services for people with disability. (2) The service provider may provide the supports or services— (a) specifically to people with disability; or (b) generally to people in the community, including people with disability. (3) The service provider may provide the supports or services with the intention of making a profit. 14 Meaning of funded service provider (1) A funded service provider is a service provider, other than the State, receiving recurrent or one-off funds from the department, or another department prescribed by regulation, to provide disability services. (2) It does not matter whether or not the service provider also uses other funds or resources to provide the disability services. (3) A funded service provider may be a local government. 15 Meaning of NDIS service provider (1) A registered NDIS provider and an unregistered NDIS provider are each an NDIS service provider. (2) A registered NDIS provider is a registered NDIS provider under the National Disability Insurance Scheme Act 2013 (Cwlth). (3) An unregistered NDIS provider is an entity that delivers NDIS supports or services to people with disability, other than a registered NDIS provider. 16 Meaning of NDIS sole trader and State sole trader (1) An individual is an NDIS sole trader if the individual— (a) is an NDIS service provider; and (b) as an NDIS service provider, personally provides NDIS supports or services to people with disability. (2) An individual is a State sole trader if the individual— (a) is a funded service provider; and (b) as a funded service provider, personally provides disability services to people with disability. 16A [Repealed] Part 2 Disability rights Division 1 Human rights principle 17 Entities encouraged to have regard to human rights principle Entities are encouraged to have regard to the human rights principle in matters relating to people with disability. 18 Principle that people with disability have the same human rights as others (1) People with disability have the same human rights as other members of society and should be empowered to exercise their rights. (2) People with disability have the right to— (a) respect for their human worth and dignity as individuals; and (b) realise their individual capacities for physical, social, emotional, cultural, religious and intellectual development; and (c) live lives free from abuse, neglect or exploitation; and (d) participate actively in decisions affecting their lives, including the development of disability policies, programs and services; and (e) recognition of their individual autonomy and independence, including the freedom to exercise choice and have control of their lives. (3) When using disability services or NDIS supports or services, people with disability have the right to— (a) supports or services supporting their achieving quality of life in a way that supports their family unit and their full participation in society; and (b) receive supports or services in a way that results in the minimum restriction of their rights and opportunities; and (c) receive supports or services in a way that respects the confidentiality of their information; and (d) receive supports or services in a safe, accessible built environment appropriate to their needs; and (e) pursue grievances about supports or services without fear of the supports or services being discontinued or recrimination from service providers; and (f) support to enable them to pursue grievances about supports or services; and (g) support, and access to information, to enable them to participate in decisions affecting their lives. (4) People with disability have the right to receive supports or services, and information necessary to support rights, in ways that are appropriate having regard to their disabilities and cultural backgrounds. (5) Subsections (2), (3) and (4) do not limit subsection (1). Division 2 Service delivery principles 19 Service delivery principles to be promoted by service providers (1) This division sets out the principles that service providers are encouraged to apply and promote in the development and implementation of services for people with disability. (2) For subsection (1), the application and promotion of the principles is encouraged to the extent they reasonably apply to a service provider. 20 Focus on the development of the individual Services should be designed and implemented so that their focus is on developing the individual and on enhancing the individual's opportunity to establish a quality life. 21 Participation in planning and operation of services (1) Services should be designed and implemented so that people with disability are encouraged, and able, to participate continually in the planning and operation of the services they receive. (2) Services provided to people with disability should provide opportunities for consultation in relation to the development of major policy changes. 22 Focus on a lifestyle the same as other people and appropriate for age Services should be designed and implemented to ensure that the conditions of everyday life of people with disability are— (a) the same as, or as close as possible to, the conditions of everyday life valued by the general community; and (b) appropriate to their chronological age. 23 Coordination and integration of services with general services Services should be designed and implemented as part of local coordinated service systems and integrated with services generally available to members of the community. 24 Services to be tailored to meet individual needs and goals (1) Services should be tailored to meet the individual needs and goals of people with disability. (2) To be responsive to the needs and goals of people with disability, innovation and flexibility are encouraged when designing services. 25 People with disability experiencing additional barriers Services should be designed and implemented to meet the needs of people with disability who may experience additional barriers— (a) because they are Aborigines or Torres Strait Islanders; or (b) because of their age, gender or culturally or linguistically diverse backgrounds; or (c) because of their rural or remote location. 26 Promotion of competency, positive image and self-esteem Services should be designed and implemented to— (a) promote recognition of the competence of people with disability; and (b) promote a positive image of people with disability; and (c) enhance the self-esteem of people with disability. 27 Inclusion in the community Services should be designed and implemented to promote the inclusion of people with disability in the life of the community. 28 No single service provider to exercise control over life of person with disability Services should be designed and implemented to ensure that no single service provider exercises control over all or most aspects of the life of a person with disability. 29 Consideration for others involved with people with disability Services should be designed and implemented to— (a) have sufficient regard to the needs of families, carers and advocates of people with disability; and (b) recognise the demands on the families of people with disability; and (c) take into account the implications for, and demands on, the families of people with disability. 30 Service providers to make information available (1) Service providers should make available information that allows the quality of their services to be judged. (2) The information should be available to the people using the services, their families, carers and advocates, people giving financial assistance for the services and the community generally. 31 Raising and resolving grievances Services should be designed and implemented to ensure that appropriate ways exist for people with disability and their advocates to raise grievances about services and have them resolved. 32 Access to advocacy support Services should be designed and implemented to ensure people with disability have access to necessary independent advocacy support so they can participate adequately in decision-making about the services they receive. Part 3 Complaints about the delivery of disability services by particular service providers 32A Application of part (1) This part applies in relation to the following service providers— (a) the department; (b) a funded service provider, other than a service provider that is another department; (c) another service provider prescribed by regulation. (2) However, this part does not apply in relation to a service provider— (a) prescribed by regulation; or (b) to the extent the service provider is providing disability services prescribed by regulation. 33 Complaints by consumers (1) The following may make a complaint to the chief executive about the delivery of disability services by a service provider in relation to which this part applies— (a) a consumer; (b) a family member, carer or advocate of a consumer; (c) another person on behalf of a consumer. (2) The chief executive must maintain a system that deals effectively with complaints received. 34 Chief executive may refer matters to complaints agency The chief executive may— (a) liaise with a complaints agency about matters relating to people with disability; and (b) refer matters relating to people with disability to a complaints agency; and (c) enter into an arrangement with a complaints agency aimed at avoiding inappropriate duplication of activities. 35 Complaints agency to inform chief executive about actions taken for complaint (1) This section applies if— (a) the chief executive refers a matter about a person with disability to a complaints agency; and (b) the chief executive, by notice to the agency, asks for information about the way in which the agency is dealing or has dealt with the matter. (2) The agency must inform the chief executive about any action taken for dealing with the matter or, if it is resolved, the resolution of the matter. (3) Subsection (2) applies despite any express provision in an Act establishing a complaints agency that makes it an offence for anyone involved with administration of the Act to disclose the information. Part 4 Funding to people with disability 36 Purpose of pt 4 The purpose of this part is to enable people with disability to receive funding to obtain relevant disability services. 37 Definitions for pt 4 In this part— individual funding agreement means an individual funding agreement made under this part. parent, of a child with a disability, includes— (a) a person who exercises parental responsibility for the child, other than a person standing in the place of a parent of a child on a temporary basis; and (b) for an Aboriginal child—a person who, under Aboriginal tradition, is regarded as a parent of the child; and (c) for a Torres Strait Islander child—a person who, under Island custom, is regarded as a parent of the child. relevant disability services, for a person with disability, means disability services, and care and support associated with the person's disability, prescribed by regulation. relevant person means— (a) for an adult with a disability— (i) a person nominated by the adult to deal with matters under this part on behalf of the adult; or (ii) a guardian or an administrator for the adult; or (iii) an attorney appointed by the adult under an enduring power of attorney under the Powers of Attorney Act 1998; or (iv) a member of the adult's support network, other than a paid carer for the adult within the meaning of the Guardianship and Administration Act 2000; or (b) for a child with a disability—a parent of the child. 38 Approval for funding (1) The Minister may approve funding to— (a) a person with disability, to enable the person to obtain relevant disability services; or (b) a relevant person for a person with disability, to enable the relevant person to obtain relevant disability services for the person with disability. (2) If the Minister approves funding to a person mentioned in subsection (1), the funding can not be provided to the person unless the person has entered into an individual funding agreement under section 39 in relation to the funding. 39 Individual funding agreement (1) If the Minister approves funding to a person under section 38, the person may enter into an individual funding agreement with the chief executive for the funding. (2) The individual funding agreement must— (a) include the terms and conditions the chief executive considers appropriate; and (b) state the relevant disability services to be obtained with the funding. Part 5 Disability worker screening and related requirements Division 1 Preliminary Subdivision 1 General 40 Main purposes of part This part— (a) establishes a scheme for screening persons, by obtaining and considering their criminal history and other relevant information, to assess whether the persons pose an unacceptable risk of harm to people with disability; and (b) requires persons who carry out, or propose to carry out, particular work with people with disability to be screened under the scheme before they start carrying out the work; and (c) prohibits persons from carrying out particular work with people with disability if the chief executive decides they pose an unacceptable risk of harm to the people with disability. 41 Paramount consideration The paramount consideration in making a decision under this part is the right of people with disability to live lives free from abuse, violence, neglect or exploitation, including financial abuse or exploitation. 41A [Repealed] 42 Part applies despite Criminal Law (Rehabilitation of Offenders) Act 1986 This part applies to a person despite the Criminal Law (Rehabilitation of Offenders) Act 1986. 43 Exemption for secondary school student on work experience (1) This section applies if— (a) a secondary school student on work experience carries out disability work for a service provider (the work experience provider); and (b) another provision of this part requires a person who is engaged to carry out the disability work to hold a clearance or interstate NDIS clearance. (2) Despite the other provision, the student is not required to hold the clearance or interstate NDIS clearance to carry out the disability work. (3) The work experience provider does not commit an offence against the other provision in relation to the student carrying out the disability work if the student carries out the work under the direct supervision of— (a) for NDIS disability work—a person who holds an NDIS clearance or interstate NDIS clearance; or (b) for State disability work—a person who holds a clearance. Subdivision 2 Interpretation 44 When a person is engaged to carry out work for entity (1) A person is engaged to carry out work for an entity if— (a) the person has an agreement with the entity to carry out the work as an employee or volunteer of the entity; or (b) the person carries out the work under a contract for services between— (i) the entity and the person; or (ii) the entity and another person. (2) For this section, it does not matter— (a) whether the agreement or contract is written or unwritten; or (b) whether the work is carried out voluntarily or for financial reward; or (c) how long the person is engaged to carry out the work; or (d) whether the agreement or contract provides for the person to carry out work on 1 occasion or an ongoing basis, whether regularly or irregularly. (3) Also, for this section, the nature of the work does not matter. Note— See also sections 46, 48 and 49. 44A [Repealed] 45 Meaning of NDIS disability work and risk-assessed NDIS work (1) NDIS disability work is work that includes the delivery of NDIS supports or services to a person with disability. (2) Risk-assessed NDIS work is NDIS disability work carried out in a role for which the normal duties— (a) include the direct delivery of specified NDIS supports or services to a person with disability; or (b) are likely to require more than incidental contact with a person with disability. (3) For subsection (2)(b), the normal duties of a person's role are likely to require more than incidental contact with a person with disability if the duties include— (a) physically touching a person with disability; or (b) building a rapport with a person with disability as an integral and ordinary part of the performance of the duties; or (c) duties that, under the NDIS (Worker Screening) Practice Standards, are defined to be, or otherwise described as, duties that require more than incidental contact with a person with disability. (4) In this section— contact includes— (a) physical contact; and (b) face-to-face contact; and (c) oral, written and electronic communication. rapport means a relationship or understanding that is more than merely polite and functional. specified NDIS supports or services means NDIS supports or services that, under the NDIS (Worker Screening) Practice Standards, are— (a) specified supports or specified services; or (b) identified as supports or services that, if delivered directly to a person with disability, must be delivered by a person who holds an NDIS clearance or interstate NDIS clearance. 46 Key personnel of NDIS service provider taken to be engaged in risk-assessed NDIS work (1) A person is taken to be engaged to carry out risk-assessed NDIS work for an NDIS service provider if the person is key personnel of the service provider. (2) In this section— key personnel see the National Disability Insurance Scheme Act 2013 (Cwlth), section 11A. 47 Meaning of State disability work (1) State disability work is work that includes providing disability services that is carried out for the department or a funded service provider. (2) State disability work does not include work carried out at a place where a funded service provider provides disability services that is carried out— (a) by a consumer of the service provider; or (b) by a tradesperson who— (i) performs work at the place from time to time; and (ii) is not an employee of the service provider; or (c) by a volunteer who— (i) is a relative of a person who receives disability services at the place; and (ii) is at the place only to help with the care of the person. 48 When person is engaged to carry out State disability work (1) A person is engaged to carry out State disability work for the department if the person— (a) is engaged to carry out the work at a place at which the department provides disability services; or (b) is a public service employee employed at a place mentioned in paragraph (a); or (c) is a member of a committee established under section 222. (2) A person is engaged to carry out State disability work for a funded service provider if the person is engaged to carry out the work at a place at which the service provider provides disability services. (3) A person is not engaged to carry out State disability work for the department or a funded service provider if the person is engaged to carry out the work, and carries out the work, for not more than 7 days in a calendar year. (4) This section does not limit section 44. 49 Particular members or officers taken to be engaged in State disability work for funded service provider A person is taken to be engaged to carry out State disability work for a funded service provider if— (a) the person is a member of a board, management committee or other governing body of the service provider; or (b) if the service provider is a corporation—the person is an executive officer of the service provider. 50 Meaning of clearance and types of clearances (1) A clearance is a declaration, issued by the chief executive to a person, that— (a) screening of the person has been conducted under this part; and (b) the person is permitted to carry out disability work. (2) An NDIS clearance is a clearance issued to a person who made an NDIS worker screening application. (3) An interstate NDIS clearance is a declaration, however called, issued under a corresponding law that corresponds to an NDIS clearance. (4) A State clearance is a clearance issued to a person who made a State disability worker screening application. 51 Meaning of exclusion and types of exclusions (1) An exclusion is a declaration, issued by the chief executive to a person, that— (a) screening of the person has been conducted under this part; and (b) the person is excluded from carrying out disability work. (2) An NDIS exclusion is an exclusion issued to a person who made an NDIS worker screening application. (3) An interstate NDIS exclusion is a declaration, however called, issued under a corresponding law that corresponds to an NDIS exclusion. (4) A State exclusion is an exclusion issued to a person who made a State disability worker screening application. 52 Meaning of notifiable person (1) Each of the following is a notifiable person for a person— (a) if the chief executive is aware that an NDIS service provider engages, or proposes to engage, the person to carry out NDIS disability work—the NDIS service provider; (b) if the chief executive is aware that a funded service provider engages, or proposes to engage, the person to carry out State disability work—the funded service provider; (c) another entity prescribed by regulation to be a notifiable person for the person. (2) Subsection (3) applies for a person if— (a) the person delivers NDIS supports or services to an NDIS participant as— (i) an NDIS sole trader; or (ii) a person engaged by an NDIS service provider to deliver the supports or services; and (b) the Agency is not wholly managing the funding for supports under the NDIS participant's plan; and (c) the chief executive is notified, or otherwise becomes aware, that the person is delivering the NDIS supports or services to the NDIS participant. (3) Each of the following is also a notifiable person for the person— (a) the NDIS participant; (b) another person recognised by the chief executive as a person with the authority or responsibility to act for the NDIS participant in relation to the participant's plan, other than the Agency. (4) In this section— Agency see the National Disability Insurance Scheme Act 2013 (Cwlth), section 9. managing the funding for supports, under an NDIS participant's plan, see the National Disability Insurance Scheme Act 2013 (Cwlth), section 42. NDIS participant means a person who is a participant in the national disability insurance scheme under the National Disability Insurance Scheme Act 2013 (Cwlth). plan, for an NDIS participant, means the NDIS participant's plan under the national disability insurance scheme. Division 2 Requirements related to persons carrying out disability work Subdivision 1 NDIS disability work 53 Registered NDIS provider engaging person to carry out risk-assessed NDIS work (1) A registered NDIS provider must not engage, or continue to engage, a person to carry out risk-assessed NDIS work unless the person holds an NDIS clearance or interstate NDIS clearance. Maximum penalty— (a) if an aggravating circumstance applies to the offence—200 penalty units or 2 years imprisonment; or (b) otherwise—100 penalty units. (2) It is an aggravating circumstance for an offence against subsection (1) if the registered NDIS provider has been given notice that— (a) the person's NDIS clearance was cancelled on the person's request under division 6; or (b) the person's interstate NDIS clearance was cancelled on the person's request under a corresponding law. (3) A registered NDIS provider does not commit an offence against subsection (1) if— (a) the person (a subcontractor) is engaged to carry out the risk-assessed NDIS work under a contract for services between the provider and another person; and (b) the provider has complied with the NDIS (Worker Screening) Practice Standards in relation to the subcontractor being engaged to carry out the risk-assessed NDIS work for the provider. 54 Carrying out risk-assessed NDIS work without NDIS clearance or interstate NDIS clearance prohibited (1) A person must not start, or continue, an engagement to carry out risk-assessed NDIS work for a registered NDIS provider unless the person holds an NDIS clearance or interstate NDIS clearance. Maximum penalty— (a) if an aggravating circumstance applies to the offence—500 penalty units or 5 years imprisonment; or (b) otherwise—100 penalty units. (2) A person who is a registered NDIS provider must not carry out risk-assessed NDIS work as an NDIS sole trader unless the person holds an NDIS clearance or interstate NDIS clearance. Maximum penalty—500 penalty units or 5 years imprisonment. (3) It is an aggravating circumstance for an offence against subsection (1) if the person— (a) held an NDIS clearance that was cancelled on the person's request under division 6; or (b) held an interstate NDIS clearance that was cancelled on the person's request under a corresponding law; or (c) is a disqualified person; or (d) holds a negative notice under the Working with Children Act; or (e) is subject to— (i) offender reporting obligations; or (ii) an offender prohibition order; or (iii) an offender prohibition disqualification order; or (iv) a sexual offender order; or (f) is the respondent to an application for an offender prohibition order. 55 Engaging person with NDIS exclusion or interstate NDIS exclusion prohibited An NDIS service provider must not engage, or continue to engage, a person to carry out NDIS disability work if— (a) the person holds an NDIS exclusion or an interstate NDIS exclusion; and (b) the service provider knows, or ought reasonably to know, the person holds an NDIS exclusion or interstate NDIS exclusion. Maximum penalty—200 penalty units or 2 years imprisonment. 56 Engaging person with suspended NDIS clearance or interstate NDIS clearance, or subject to interim bar, prohibited (1) This section applies if— (a) a person— (i) holds an NDIS clearance that is suspended under division 6; or (ii) holds an interstate NDIS clearance that is suspended under a corresponding law; or (iii) is subject to an interim bar; and (b) an NDIS service provider knows, or ought reasonably to know, the person's NDIS clearance or interstate NDIS clearance is suspended or the interim bar is in effect for the person. (2) The NDIS service provider must not— (a) if the person is engaged by the service provider under an existing arrangement to carry out NDIS disability work for the service provider—allow the person to carry out work that is NDIS disability work; or (b) otherwise—start to engage the person to carry out NDIS disability work. Maximum penalty—200 penalty units or 2 years imprisonment. Note— See sections 84(3) and 113(3) for the restrictions on terminating a person's employment solely or mainly because the person's clearance is suspended or an interim bar is in effect for the person. 57 Holder of NDIS exclusion or interstate NDIS exclusion prohibited from carrying out NDIS disability work A person who holds an NDIS exclusion or an interstate NDIS exclusion must not— (a) start, or continue, an engagement to carry out NDIS disability work for an NDIS service provider; or (b) carry out NDIS disability work as an NDIS sole trader. Maximum penalty—500 penalty units or 5 years imprisonment. Subdivision 2 State disability work 58 Funded service provider must prepare annual risk management strategy (1) Each year, a funded service provider that engages 1 or more persons to carry out State disability work must develop and implement a written strategy (a risk management strategy) that complies with this section. Maximum penalty—20 penalty units. (2) A risk management strategy must include practices and procedures for engaging persons who carry out State disability work for the funded service provider in ways that— (a) promote the wellbeing of people with disability; and (b) protect people with disability from abuse, violence, neglect or exploitation. (3) A regulation may prescribe other matters that must be included in a risk management strategy. 59 Funded service provider engaging person to carry out State disability work (1) A funded service provider must not engage, or continue to engage, a person to carry out State disability work unless— (a) the person holds a clearance; and (b) the service provider has given the chief executive a notice, under subsections (3) and (4), about engaging the person to carry out State disability work. Maximum penalty— (a) if an aggravating circumstance applies to the offence—200 penalty units or 2 years imprisonment; or (b) otherwise—100 penalty units. (2) It is an aggravating circumstance for an offence against subsection (1) if— (a) the person holds an exclusion and the funded service provider knows, or ought reasonably to know, the person holds the exclusion; or (b) the funded service provider is given notice that the person's clearance was cancelled on the person's request under division 6. (3) Before giving a notice mentioned in subsection (1)(b), the funded service provider must take reasonable steps to verify the person's identity. Examples of reasonable steps— viewing the person's clearance or driver licence that includes the person's photograph (4) A notice mentioned in subsection (1)(b) must be given in the approved form and in an approved way. 60 Engaging person with suspended clearance, or subject to interim bar, prohibited (1) This section applies if— (a) a person— (i) holds a clearance that is suspended; or (ii) is subject to an interim bar; and (b) a funded service provider knows, or ought reasonably to know, the person's clearance is suspended or the interim bar is in effect for the person. (2) The funded service provider must not— (a) if the person is engaged by the service provider under an existing arrangement to carry out State disability work for the service provider—allow the person to carry out work that is State disability work; or (b) otherwise—start to engage the person to carry out State disability work. Maximum penalty—200 penalty units or 2 years imprisonment. Note— See sections 84(3) and 113(3) for the restrictions on terminating a person's employment solely or mainly because the person's clearance is suspended or an interim bar is in effect for the person. 61 Carrying out State disability work without clearance prohibited (1) A person must not start, or continue, an engagement to carry out State disability work for the department or a funded service provider unless the person holds a clearance. Maximum penalty— (a) if an aggravating circumstance applies to the offence—500 penalty units or 5 years imprisonment; or (b) otherwise—100 penalty units. (2) A person must not carry out State disability work as a State sole trader unless the person holds a clearance. Maximum penalty—500 penalty units or 5 years imprisonment. (3) It is an aggravating circumstance for an offence against subsection (1) if the person— (a) holds an exclusion; or (b) held a clearance that was cancelled on the person's request under division 6; or (c) is a disqualified person; or (d) holds a negative notice under the Working with Children Act; or (e) is subject to— (i) offender reporting obligations; or (ii) an offender prohibition order; or (iii) an offender prohibition disqualification order; or (iv) a sexual offender order; or (f) is the respondent to an application for an offender prohibition order. Subdivision 3 General 62 No contravention of particular requirements in absence of notice (1) This section applies in relation to— (a) a provision of this division about a person carrying out disability work; and (b) a person who— (i) held a clearance that was cancelled under division 6; or (ii) held an interstate NDIS clearance that was cancelled under a corresponding law; or (iii) holds an exclusion issued to the person after the person's clearance was cancelled under division 6; or (iv) holds an interstate NDIS exclusion issued to the person after the person's interstate NDIS clearance was cancelled under a corresponding law. (2) A court may not find that the person contravened the provision unless the person was given notice about the cancellation of the clearance or interstate NDIS clearance held by the person or the issue of the exclusion or interstate NDIS exclusion to the person. 63 Complying with requirement to end, or not start, person's engagement (1) This section applies if it would be an offence against a provision of this part for an NDIS service provider or funded service provider to engage, or continue to engage, a person (the engaged person) to carry out disability work. (2) The NDIS service provider or funded service provider must comply with the provision despite another Act or law or any industrial award or agreement. (3) The NDIS service provider or funded service provider does not incur any liability because, in complying with the provision, the service provider does not engage, or continue to engage, the engaged person to carry out disability work. (4) A person whose clearance is suspended under division 6, or whose interstate NDIS clearance is suspended under a corresponding law, may be engaged by the NDIS service provider or funded service provider other than to carry out disability work until the suspension ends. Division 3 Disability worker screening applications Subdivision 1 Prohibited disability worker screening applications 64 Application by exclusion holder prohibited (1) A person who holds an exclusion or an interstate NDIS exclusion must not make a disability worker screening application. Maximum penalty—500 penalty units or 5 years imprisonment. (2) An application made in contravention of subsection (1) has no effect. Subdivision 2 Applications generally 65 Application related to NDIS disability work A person may apply to the chief executive for a clearance if the person— (a) is, or proposes to be— (i) engaged by an NDIS service provider to carry out NDIS disability work; or (ii) an NDIS sole trader; or (iii) engaged by an entity prescribed by regulation for this section; and (b) complies with each other criterion prescribed by regulation for this section. 66 Application related to State disability work A person may apply to the chief executive for a clearance if the person is, or proposes to be— (a) engaged by the department or a funded service provider to carry out State disability work; or (b) a State sole trader; or (c) engaged by an entity prescribed by regulation for this section. 67 Application combined with working with children check application (1) A person may combine an application under section 65 or 66 with a working with children check application. (2) An application made under subsection (1) is a combined application. (3) This part applies to a combined application to the extent it is an application under section 65 or 66. (4) If a combined application is made to the chief executive, the chief executive must give the information in the combined application, to the extent the information relates to the person's working with children check application, to the chief executive (working with children). 67A [Repealed] 67B [Repealed] 68 Form of application (1) A disability worker screening application must be— (a) made in the approved form and in an approved way; and (b) signed by the applicant; and (c) accompanied by the fee prescribed by regulation for the application. (2) The approved form must provide for the applicant— (a) to provide proof of the applicant's identity; and (b) to consent to being screened under this part; and (c) if the applicant is engaged, or proposes to be engaged, to carry out disability work—to provide information about the entity that has engaged, or proposes to engage, the applicant to carry out the disability work. 69 Chief executive may request further information (1) After receiving a disability worker screening application, the chief executive may give the applicant a notice asking the applicant to give the chief executive, within a reasonable stated time— (a) stated information the chief executive reasonably needs to establish the applicant's identity; or (b) stated information, including by way of a submission, about a stated matter that the chief executive reasonably believes is relevant to the application. (2) A request under subsection (1) must state that, if the applicant does not comply with the request within the stated time, the application may be withdrawn. 69A [Repealed] 70 Applicant must give notice of change in information (1) This section applies if, before the chief executive decides a disability worker screening application— (a) the applicant's name or contact details as stated in the application change; or (b) if the application states information about the applicant's engagement with an NDIS service provider or funded service provider—the stated information changes; or (c) another matter, prescribed by regulation for this section, changes in relation to the applicant. (2) The applicant must give the chief executive a notice about the change, in the approved form and in an approved way, within 7 days after the change happens. Maximum penalty—10 penalty units. 71 Notice of change in police information or risk assessment matter (1) This section applies if, before the chief executive decides a disability worker screening application, the applicant becomes aware that— (a) the police information about the applicant changes; or (b) a risk assessment matter relating to the applicant changes. (2) The applicant must immediately give the chief executive a notice about the change, in the approved form and in an approved way. Maximum penalty—100 penalty units. (3) For subsection (1)(a), the police information about a person changes if a criminal history event happens in relation to the person. 72 Expired clearance continues in force pending decision (1) This section applies if an applicant holds a clearance that, but for this section, would end under section 101(2). (2) The clearance remains in force— (a) from when the clearance would have ended under section 101(2); and (b) until— (i) the applicant's disability worker screening application is decided or withdrawn; or (ii) the applicant stops being a person who may apply for a clearance under section 65 or 66. 73 Holder of expired interstate NDIS clearance taken to hold NDIS clearance pending decision (1) This section applies if an applicant holds an interstate NDIS clearance that ends under a corresponding law because the term of the clearance has ended. (2) The applicant is taken to hold an NDIS clearance— (a) from the end of the term of the interstate NDIS clearance under the corresponding law; and (b) until— (i) the applicant's disability worker screening application is decided or withdrawn; or (ii) the applicant stops being a person who may apply for a clearance under section 65; or (iii) an interim bar is imposed on the applicant. Subdivision 3 Withdrawal of application 74 Notice of withdrawal (1) If the chief executive withdraws a disability worker screening application under this subdivision before it is decided, the chief executive must give the applicant a notice that states— (a) the application is withdrawn; and (b) the reason for the withdrawal. (2) The chief executive must also give a notice mentioned in subsection (1) to each notifiable person for the applicant. 75 Withdrawal by applicant (1) The applicant may ask the chief executive to withdraw the applicant's disability worker screening application at any time before it is decided. (2) The request may be made orally or in writing. (3) The chief executive must withdraw the application unless the chief executive refuses to withdraw the application under section 76. 76 Refusal to withdraw by chief executive (1) The chief executive may refuse to withdraw an applicant's disability worker screening application if— (a) an interim bar is in effect for the applicant; or (b) an interstate NDIS clearance held by the applicant is suspended under a corresponding law; or (c) the applicant was previously issued an exclusion or an interstate NDIS exclusion; or (d) the chief executive, in relation to deciding the application— (i) has given, or is proposing to give, the applicant a show cause notice under section 95; or (ii) reasonably suspects a risk assessment of the applicant will demonstrate that the applicant poses an unacceptable risk of harm to people with disability. (2) If the chief executive refuses to withdraw the application, the chief executive must give the applicant a notice that states the reasons for the refusal. 77 Request to withdraw combined application (1) This section applies if the applicant made a combined application. (2) The applicant may combine a request to withdraw the applicant's disability worker screening application under section 75 with a notice withdrawing the applicant's working with children check application. (3) A request made under subsection (2) is a combined withdrawal request. Note— The request may be made orally or in writing. See— (a) section 75(2); and (b) the Working with Children Act, section 196(3). (4) This subdivision applies to a combined withdrawal request to the extent it is a request under section 75. (5) If a combined withdrawal request is made to the chief executive, the chief executive must give a notice about the combined withdrawal request to the chief executive (working with children). 78 Withdrawal because identity can not be established The chief executive must withdraw a disability worker screening application if— (a) the chief executive gives the applicant a notice under section 69(1)(a); and (b) the notice includes the warning mentioned in section 69(2); and (c) the chief executive can not establish the applicant's identity with certainty. 79 Withdrawal because of failure to comply with particular requests The chief executive may withdraw a disability worker screening application if— (a) the chief executive gives the applicant— (i) a notice under section 69(1)(b) asking the applicant to provide stated information; or (ii) a notice under section 138U or 138X asking the applicant to give the consent, or take the other action, stated in the notice; and (b) the notice includes a warning that, if the applicant does not comply with the notice, the application may be withdrawn; and (c) the applicant does not comply with the notice. 80 Withdrawal of NDIS worker screening application in particular circumstances The chief executive must withdraw an NDIS worker screening application if the chief executive is satisfied— (a) that, before the application was made, the applicant applied for an interstate NDIS clearance under a corresponding law and that application has not been decided or withdrawn; or (b) since the application was made, the applicant has been issued an interstate NDIS exclusion. Subdivision 4 Interim bar for particular applicants 81 Application of subdivision (1) This subdivision applies if any of the following happens in relation to an applicant— (a) the applicant— (i) is charged with a disqualifying offence that has not been dealt with; and (ii) was an adult when the offence is alleged to have been committed; (b) the applicant becomes the subject of a banning order made for a reason that, in the chief executive's opinion, is relevant to whether the applicant poses a risk of harm to people with disability; (c) the chief executive, in deciding the applicant's application, reasonably suspects a risk assessment of the applicant will demonstrate that the applicant poses an unacceptable risk of harm to people with disability. (2) However, this subdivision does not apply in relation to an applicant who holds a clearance that is suspended under division 6. Note— See sections 56, 60 and 113 in relation to the effect of the suspension of a person's clearance. 82 Chief executive must impose interim bar on applicant (1) The chief executive must impose an interim bar on the applicant. (2) The chief executive imposes an interim bar by giving the applicant a notice that states— (a) the interim bar is imposed on the applicant; and (b) the reason for imposing the interim bar; and (c) the effect of the interim bar. 83 Notifiable persons and potential employers notified about interim bar (1) The chief executive must give each notifiable person for the applicant a notice that states— (a) the applicant has made a disability worker screening application that has not been decided; and (b) an interim bar has been imposed on the applicant; and (c) the effect of the interim bar; and (d) an employer of the applicant who is given notice about the interim bar under this section must not terminate the applicant's employment solely or mainly because the interim bar is in effect for the person. Note— See section 138ZZB in relation to notices under this section if the NDIS commission communicates the relevant information to the notifiable person. (2) Also, the chief executive may give a notice mentioned in subsection (1) to a potential employer of the applicant. 84 Effect of interim bar (1) This section applies if the chief executive imposes an interim bar on an applicant under section 82. (2) While the interim bar is in effect, the applicant must not— (a) start an engagement to carry out disability work; or (b) if, when the interim bar is imposed, the applicant is engaged to carry out disability work for an NDIS service provider, funded service provider or the department—carry out work for the service provider or department that is disability work; or (c) carry out disability work as an NDIS sole trader or State sole trader. Maximum penalty—500 penalty units or 5 years imprisonment. (3) An employer of the applicant who is given notice about the interim bar under section 83 must not terminate the applicant's employment solely or mainly because the interim bar is in effect for the applicant. Notes— 1 See also sections 56 and 60 in relation to NDIS service providers or funded service providers allowing the applicant to carry out disability work. 2 See section 138ZZB in relation to notices under section 83 if the NDIS commission communicates the relevant information to the notifiable person. 85 When interim bar ends (1) An interim bar imposed on an applicant ends if— (a) the applicant's disability worker screening application is— (i) decided under division 4; or (ii) withdrawn under subdivision 3; or (b) the chief executive decides to end the interim bar under subsection (2). (2) The chief executive may decide to end an interim bar if the chief executive reasonably suspects that a risk assessment of the applicant will demonstrate that the applicant does not pose an unacceptable risk of harm to people with disability. (3) If an interim bar has been imposed on the applicant for at least 6 months, the applicant may apply to the chief executive to end the interim bar. (4) The application must be made in the approved form and in an approved way. (5) The chief executive is not required to decide the applicant's application to end the interim bar if— (a) a charge for an offence against the person has not been dealt with; or (b) the chief executive is aware that an incident involving the person, or an allegation or complaint about the person's conduct, that is relevant to whether the person poses a risk of harm to people with disability is being investigated and the investigation has not ended. (6) The chief executive may decide the applicant's application to end the interim bar— (a) by deciding to end the interim bar under subsection (2); or (b) if the applicant has asked the chief executive to withdraw the applicant's disability worker screening application under section 75—by withdrawing the application; or (c) by refusing to end the interim bar. (7) If the chief executive decides to refuse to end the interim bar, the chief executive must give the applicant a notice that states— (a) the decision and the reasons for the decision; and (b) the relevant review and appeal information. Division 4 Dealing with and deciding application Subdivision 1 Preliminary 86 Application of division This division applies if a person made a disability worker screening application and the application has not been withdrawn. 87 Dealing with application (1) The chief executive must— (a) consider the person's application and the information available to the chief executive about the person; and (b) if section 89 or 90 apply to the person—decide the application under that section; and (c) if section 91 or 92 apply to the person—conduct a risk assessment of the person before deciding the application under that section. (2) However, the chief executive is not required to decide the person's application if— (a) a charge for an offence against the person has not been dealt with; or (b) the chief executive is aware that an incident involving the person, or an allegation or complaint about the person's conduct, that is relevant to whether the person poses a risk of harm to people with disability is being investigated and the investigation has not ended. 88 Information to be considered (1) The chief executive must consider each of the following types of information for a person of which the chief executive is aware, if any— (a) police information; (b) domestic violence information; (c) disciplinary information; (d) NDIS disciplinary or misconduct information; (e) information about— (i) whether the person holds, or has previously held, a clearance, interstate NDIS clearance, exclusion or interstate NDIS exclusion; or (ii) if the person has previously held a clearance or interstate NDIS clearance—whether the clearance was suspended at any time or cancelled. (2) The chief executive may consider other information about the person that is relevant to whether the person poses a risk of harm to people with disability. Subdivision 2 Deciding application 89 Deciding application—no relevant information The chief executive must issue a clearance to the person if the chief executive is not aware of any information mentioned in section 88 about the person. 90 Deciding application—disqualified person (1) This section applies if the chief executive is aware the person is a disqualified person. (2) The chief executive must issue an exclusion to the person. 91 Deciding application—exceptional circumstances for adult offender (1) This section applies if the chief executive is aware— (a) the person has a conviction for a serious offence and was an adult when the offence was committed; or (b) the person— (i) has been charged with a disqualifying offence or serious offence that has not been dealt with; and (ii) was an adult when the offence is alleged to have been committed. Note— See section 95 for the requirement for the chief executive to give the person a show cause notice before deciding the person's application if this section applies. (2) The chief executive must issue the person an exclusion. (3) However, the chief executive may issue the person a clearance if satisfied there are exceptional circumstances such that the person does not pose an unacceptable risk of harm to people with disability. 92 Deciding application—general assessment of risk posed (1) This section applies if sections 89, 90 and 91 do not apply to the person. (2) The chief executive must— (a) if satisfied the person does not pose an unacceptable risk of harm to people with disability—issue a clearance to the person; or (b) if satisfied the person poses an unacceptable risk of harm to people with disability—issue an exclusion to the person. Subdivision 3 Assessing risk person poses to people with disability 93 How chief executive conducts risk assessment (1) The chief executive conducts a risk assessment of a person by— (a) considering the information about the person obtained by the chief executive under this part; and (b) deciding whether the person poses an unacceptable risk of harm to people with disability. (2) In conducting the risk assessment, the chief executive— (a) must consider information as required under this division; and (b) may decide the person poses an unacceptable risk of harm to people with disability— (i) if satisfied there is a real and appreciable risk that the person might cause harm to people with disability; and (ii) without needing to be satisfied it is likely the person will cause the harm. 94 Matters to consider (1) This section applies if the chief executive is aware of conduct of the person (the person's offending conduct) that— (a) involved the commission of an offence; or (b) was the subject of a complaint, allegation or investigation under a law; or (c) is otherwise relevant to whether the person poses a risk of harm to people with disability. (2) The chief executive must consider the following matters— (a) the nature, gravity and circumstances of the person's offending conduct; (b) how the person's offending conduct is relevant to disability work; (c) how long ago the person's offending conduct occurred; (d) if the person's offending conduct was committed against another person (the victim)— (i) the victim's vulnerability at the time of the conduct; and (ii) the person's relationship to, or position of authority over, the victim at the time of the conduct; (e) whether the person's offending conduct indicates a pattern of concerning behaviour; (f) the person's conduct since the offending conduct; (g) any other circumstances relevant to the person's offending conduct. 95 Action before making adverse decision (1) This section applies if— (a) section 91 applies to the person; or (b) the chief executive is proposing to decide that the person poses an unacceptable risk of harm to people with disability. (2) Before deciding the person's application, the chief executive must— (a) give the person a notice (a show cause notice) that complies with section 96; and (b) consider any submissio