LR [2025] QCAT 462 (19 November 2025)

where the Tribunal considered whether the decision is compatible with human rights - where Tribunal recognises the adult's relevant human rights - whether human rights are limited and engaged - whether the limits imposed on the relevant human rights are reasonable and justifiable

Acts Interpretation Act 1954 (Qld), 14A, s 14B, s 32A

Aged Care Act 2024 (Cth), s 17

Disability Services Act 2006 (Qld), s 12, s 12A, s 15, s 140, s 144, s 150, s 158, s 173, s 178

Guardianship and Administration Act 2000 (Qld), s 5, s 6, s 7, s 7A, s 11A, s 11B, s 11C, s 12, s 14, s 31, Ch 5B, s 80R, s 80S, s 80U, s 80ZD, s 80ZE, s 80ZH, s 80ZP, s 80ZQ, s 81, s 103, s 114A, s 118, s 119, s 125, s 210

Human Rights Act 2019 (Qld), s 13, s 15, s 17, s 25, s 28, s 30, s 31, s 48, s 58

National Disability Insurance Scheme Act 2013 (Cth), s 9

National Injury Insurance Scheme (Queensland) Act 2016 (Qld), s 3, s 26

National Injury Insurance Scheme (Queensland) Regulation 2016 (Qld)

NDIS (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)

Public Guardian Act 2014 (Qld), s 39, s 40, s 47

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 47

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568

Bergman v DAW [2010] QCA 143

Commissioner of Taxation v Industrial Equity Ltd & Anor [2000] FCA 420; (2000) 171 ALR 1

Commissioner of Taxation of the Commonwealth of Australia v Word Investments Limited [2008] HCA 55; (2008) 236 CLR 204

DBD [2023] QCATA 160

Disorganized Developments Pty Ltd v South Australia (2023) 280 CLR 515

Gibb v Federal Commission of Taxation [1966] HCA 74; (1966) 118 CLR 628

Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216

Re MLI [2006] QGAAT 31

NJ [2022] QCAT 283

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355

SZTAL v Minister for Immigration and Boarder Protection (2017) 91 ALR 936

TJ v The Public Trustee of Queensland & Anor [2023] QCA 158

A Bhardwaj, psychologist and behaviour support practitioner

B Jenkins, Director of Strategic Policy, National Injury Insurance Scheme (Queensland) Agency

H Tehan, Manager of Participant Operational Support Services, National Injury Insurance Scheme (Queensland) Agency

Y Matsuyama, Senior Legal Officer, Office of the Public Advocate

• [1] Senior Member Browne: This matter raises an important issue about the use of unregulated restrictive practices by a service provider funded by the National Injury Insurance Scheme, Queensland ('NIISQ').
• [2] The consequences of unregulated restrictive practices may be significant because it leaves the individual subject to the restrictive practices unprotected. Restrictive practices can limit an individual's autonomy for decision-making and personal freedom. Although restrictive practices may be necessary, in certain circumstances and settings, to safeguard an individual's rights, the use of restrictive practices for people with disabilities may limit and engage relevant human rights and freedoms. Further, without the individual's consent to the use of restrictive practices, is the risk to service providers of possible exposure to civil or criminal liability for assault or deprivation of liberty.[1]
• [3] Importantly, this matter is about LR who lives in disability support accommodation funded by the National Disability Insurance Scheme ('NDIS'). LR relies on treatment, care and support in his accommodation setting provided by a service provider, Unidex Healthcare ('Unidex'). Unidex uses restrictive practices necessary to support LR in all activities of daily living.
• [4] In Queensland, there is a legislative regime for restrictive practices under Chapter 5B ('ch 5B') of the Guardianship and Administration Act 2000 (Qld) ('GA Act') and relevant sections of the Disability Services Act 2006 (Qld) ('DS Act').
• [5] Unidex applies to the Tribunal seeking an order appointing a guardian to make decisions about LR's restrictive practice matters.[2]
• [6] In considering Unidex's application, the Tribunal is required to answer a question of statutory construction as to whether LR falls within the ch 5B cohort because he is receiving services from a service provider (Unidex) funded by the NIISQ.

• [7] There are two applications before the Tribunal - an application for a review of an existing appointment of a guardian, to include LR's restrictive practice matters (under ss 31 and 12 of the GA Act); and an application for the appointment of a guardian for a restrictive practice matter (under ch 5B).[3]
• [8] The applicant makes clear in the application that LR has impaired decision-making capacity and that his supports are funded through the NIISQ not the NDIS. The applicant states that LR's case 'does not fall under the scope of the NDIS Commission or NDIS restrictive practices legislation' and, amongst other things, that 'the Public Guardian does not have the legislative authority to make decisions regarding restrictive practices'.[4]
• [9] The applicant raises a question about the Tribunal's jurisdiction to appoint a guardian for a restrictive practices matter under ch 5B. Further, whether LR receives 'disability services' or 'NDIS supports or services' from a 'relevant service provider' for the purposes of s 80R of the GA Act and as provided under s 140(3) of the DS Act.

• [10] LR did not attend the hearing. The Tribunal is satisfied the necessary notice of the applications and hearing, for the purposes of s 118 of the GA Act, was given to LR and his family.[5]
• [11] LR has limited verbal communication. The Tribunal appointed a representative from Aged and Disability Advocacy Law ('ADA Law') under s 125 of the GA Act to represent LR's views, wishes and interests.[6] Mr Abraham appeared in person at the hearing as LR's representative.
• [12] The applicant, Ms Webb, Clinical Coordinator of Unidex, appeared in person. The author of the comprehensive behaviour support plan, Ashika Bhardwaj, a psychologist and behaviour support practitioner who is approved under the NDIS (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) ('NDIS Rules'), attended remotely.[7]
• [13] A representative of the Public Guardian as the appointed guardian attended remotely.
• [14] The Public Advocate, together with the Senior Legal Officer, appeared in person, the Public Advocate having been granted leave to intervene.[8] In granting leave, the Tribunal was satisfied that the proceedings and the use of restrictive practices by a service provider funded under the NIISQ involves an important systemic issue about the protection of the rights or interests of adults with impaired capacity.[9]
• [15] The Director of Strategic Policy of the NIISQ Agency (Mr Jenkins) attended remotely together with their representative responsible for funding of care.[10]
• [16] Prior to the hearing, the Tribunal invited the Department of Families, Seniors, Disability Services and Child Safety ('the Department') to file submissions.[11]
• [17] The parties have filed in the Tribunal written submissions.[12] Oral submissions were also made in the hearing.

• [18] LR is a 35-year-old Aboriginal man with significant physical and cognitive impairments resulting from a motor accident on 4 August 2019. He communicates his views and wishes through the use of gestures and minimal words.
• [19] LR lives in a specialist disability accommodation unit ('SDA') funded by the NDIS. He requires a wheelchair and full hoist for mobility and assistance with all activities of daily living.
• [20] LR receives 24-hour support, seven days per week, from the service provider, Unidex. Because LR has a serious personal injury arising from a motor accident, he is a participant in the NIISQ.[13] Importantly, LR receives treatment, care and support from Unidex funded by the NIISQ in his accommodation setting. Unidex is also a registered NDIS provider.
• [21] LR has an appointed guardian, the Public Guardian, to make decisions about his provision of services, including NDIS matters.[14] LR also has an appointed administrator, the Public Trustee of Queensland, to make decisions about his financial matters.[15]
• [22] As part of LR's daily support and care, medication prescribed by treating health professionals for epilepsy and 'behavioural management' is administered by Unidex.[16]
• [23] Unidex also uses physical interventions such as, for example, holding LR's arm or hand to prevent him from striking out at service providers when needed during personal care routines.
• [24] The practices or interventions used by Unidex in LR's accommodation setting (the SDA) are known as restrictive practices, namely, chemical restraint and physical restraint.

• [25] ADA Law submits that LR is not able to provide a view regarding the proposed restrictive practices, physical restraint and chemical restraint.[17] The Tribunal is referred to the relevant provisions under ch 5B of the GA Act and the DS Act for restrictive practices.
• [26] ADA Law submits that Unidex is a service provider funded by the NIISQ to provide disability services to LR. These services are said to allow LR to live in his unit. Further, the Tribunal is referred to what is said to be 'an alternative pathway' for the appointment of a guardian for a personal matter pursuant to s 12 of the GA Act, being the approach adopted by the Tribunal in NJ [2022] QCAT 283 ('NJ'). ADA Law submits that LR is in need of a decision-maker for restrictive practices and is unable to provide consent for the use of restrictive practices. It is submitted that without the appointment of a guardian for restrictive practices there is an 'absence of an independent decision-maker to ensure [LR's] rights and dignity are upheld'. Further, the appointment will provide 'a mechanism [for] restrictive practices to be properly authorised, continuously monitored and subject to meaningful challenge where appropriate'.[18]
• [27] The Public Guardian submits that there is a need for ongoing decisions about LR's provision of services and in regards to LR's supports, to ensure 'future support services are consistent and meet his disability support needs'.[19]
• [28] The Director Participant Operational Support Services, NIISQ, submits that the National Injury Insurance Scheme (Queensland) Act 2016 (Qld) ('NIISQ Act') and National Injury Insurance Scheme (Queensland) Regulation 2016 (Qld) ('NIISQ Regulations') do not authorise or regulate the use of restrictive practices on participants in the NIISQ.[20] Further, the NIISQ Act provides for the Agency to fund treatment, care and support that is provided by service providers. The Agency's position is that service providers only use restrictive practices if authorised to do so at general law, including with the participant's consent or the consent of a substituted decision-maker appointed under the GA Act. In relation to the published guidelines (discussed in [41] below), the Agency submits that the guidelines are based on the NIISQ Agency's interpretation of governing legislation and the GA Act and are 'intended to explain the NIISQ Agency's position that for some participants, positive behaviour supports constitute treatment, care and support under the NIISQ Act'.[21]
• [29] The Public Advocate addresses what is said to be a systemic issue about restrictive practices for an adult receiving services funded by NIISQ.[22] Further, NIISQ currently has 'over 500 people receiving funding' and although it is unknown how many may require restrictive practices, the Public Advocate submits that this question, of how restrictive practices can be approved, represents a systemic issue that affects a large cohort of people.[23]
• [30] The Public Advocate identifies a number of issues to be addressed by the Tribunal in this matter. In short, the Public Advocate submits that s 140 of the DS Act can apply to an 'NDIS service provider' that is providing 'disability services' even if those services are not funded by the NDIS and instead funded by a different body such as the NIISQ. Further, the Public Advocate submits that if it is found that ch 5B only applies to services that are funded by the relevant Queensland Government department (in this case the Department of Family Services, Disability Services and Child Safety) or the NDIS, such that ch 5B does not apply to LR's case, then the Tribunal may consider whether it has jurisdiction to make an order outside of ch 5B, relying upon the authority in NJ.[24] The Public Advocate submits that a guardian for non-chapter 5B restrictive practices cannot be appointed in the context of NIISQ funded services in the same way as one can be in the context of provision of aged care services (as was the case in NJ).[25]
• [31] The Department did not file written submissions. Relevantly, there is evidence before the Tribunal of the Department's refusal of Unidex's application for short term approval for the use of restrictive practices under Queensland law.[26] In the oral hearing, the Tribunal was referred to correspondence received from the Senior Clinician for the Department that states Unidex's application 'falls out of scope of part 6 of the DS Act'. Further, it is stated in the Department's letter that Unidex does not 'meet the definition of a relevant service provider under s 140 of the [DS Act] as the services delivered to [LR] are funded by the [NIISQ], not the [NDIS] or the Department'.[27]
• [32] It is convenient to now consider what are 'restrictive practices' in Queensland and under Commonwealth legislation.

• [33] In Queensland, a 'restrictive practice', as defined under the DS Act, means any of the following practices used to respond to the behaviour of a person, referred to as the adult, with an intellectual or cognitive disability that causes harm to the adult or others - [28]

(a) Containing or secluding the adult;

(b) Using chemical, mechanical or physical restraint on the adult;

(c) Restricting access of the adult.

• [34] The relevant provisions for restrictive practices in Queensland can be found in ch 5B of the GA Act and relevant sections of the DS Act. Under ch 5B, the Tribunal may, in certain circumstances, appoint a guardian for a restrictive practice matter and approve the use of containment and seclusion. Further, short term approvals for the use of restrictive practices may be given by the Public Guardian for containment or seclusion (s 80ZH), and by the chief executive for restrictive practices, other than containment or seclusion.[29]
• [35] Relevant to restrictive practices under the GA Act and DS Act is the development of a positive behaviour support plan that details the behaviours and describes strategies to be used to meet the adult's needs and, amongst other things, details the restrictive practices proposed to be used in relation to the adult.[30] Further, the guardian for restrictive practices may give the consent for restrictive practices only if satisfied as to certain requirements under s 80ZE under the GA Act including, for example, and amongst other things, that the adult has been adequately assessed for developing or changing the positive behaviour support plan.
• [36] The Human Rights Act 2019 (Qld) also applies when the Tribunal is appointing a guardian for a person.[31]
• [37] The use of restrictive practices is regulated in certain circumstances and settings under relevant Commonwealth legislation. For example, the use of restrictive practices by service providers funded under the NDIS is regulated by the NDIS Quality and Safeguards Commission and guided by the NDIS Rules. NDIS providers using restrictive practices need to keep records and report use to the NDIS Commission.[32] A 'restrictive practice' is defined under the National Disability Insurance Act 2013 (Cth) as 'any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability'.[33]
• [38] In the Commonwealth aged care sector, restrictive practices are regulated under the Aged Care Act 2024 (Cth) and relevant subordinate legislation, the Aged Care Rules 2025 (Cth).[34] All registered providers of funded aged care services are required to comply with legislative requirements including the use of restrictive practices. A 'restrictive practice' is defined under the Aged Care Act 2024 (Cth) as 'any practice or intervention that has the effect of restricting the rights or freedom of movement of that individual'.[35]
• [39] There are slight differences in the terms used in relevant Queensland legislation (the GA Act and DS Act) to the terms that may be defined as restrictive practices under relevant Commonwealth legislation. For example, 'environmental restraint' is not a term or restrictive practice recognised under Queensland law, but it is a term that is recognised as a restrictive practice under the Aged Care Rules 2025 (Cth) and the NDIS Rules.[36]

• [40] Relevant to LR's case is the NIISQ, introduced in 2016. As reflected in the explanatory notes, the NIISQ was introduced for a number of reasons including the 'Heads of Agreement between the Commonwealth and Queensland Governments on the NDIS', which required Queensland to implement a national injury insurance scheme for motor vehicle accidents to meet 100% of the costs of participants who enter the NDIS because a NIIS had not been implemented.[37] The purpose of the NIISQ Act is to:[38]

... ensure that persons who suffer particular serious personal injuries as a result of a motor accident in Queensland receive necessary and reasonable treatment, care and support, regardless of fault.

• [41] The NIISQ has published their own guidelines relevant to restrictive practices that are publicly accessible titled 'Positive Behaviour Supports Guideline' and the 'Serious Incidents Guideline'. The guidelines refer to a plan titled 'MyPlan' that is 'approved' under s 26 of the NIISQ Act. The guidelines also contain definitions for terms including restrictive practices. As discussed above, the use of restrictive practices is not regulated under the NIISQ Act.

• [42] In NJ, the Tribunal considered the power to appoint a guardian for restrictive practices for an adult who was a recipient of aged care under the relevant Commonwealth legislation, the Aged Care Act 1997 (Cth) ('Aged Care Act') that applied at the time.[39] In NJ the Tribunal found that s 12(4) of the GA Act did not operate, because ch 5B did not apply, and appointed a guardian for restrictive practices using the power to appoint a guardian under s 12 of the GA Act with relevant conditions.
• [43] Importantly, as considered by the Tribunal in NJ's case, restrictive practices are regulated under relevant Commonwealth legislation known as the Aged Care Act for an adult who is a recipient of aged care. In exercising the power to appoint a guardian for restrictive practices under s 12, in NJ the Tribunal considered the Commonwealth legislative provisions that specially deal with defined restrictive practices.[40] The Tribunal said:[41]

The Commonwealth legislative provisions specifically deal with defined restrictive practices including preventing a person from freely accessing all areas within their environment. The Commonwealth legislative provisions provide for the power to place restraints on a person's liberty if specific requirements are satisfied.

• [44] In NJ, the Tribunal appointed a guardian under s 12 of the GA Act to give informed consent or withhold such consent for the use of 'environmental restraint' as that term is defined in the relevant Commonwealth legislation that applied at the time (the Quality of Care Principles 2014 (Cth)). Further, the appointment is subject to conditions as specified in the order, such as when consent is to be given for the use of the relevant restrictive practice and consent being limited to the aged care facility where the adult resides.
• [45] Whereas in NJ's case, the use of restrictive practices is regulated under relevant Commonwealth legislation, the Aged Care Act (as it was at the time), that applies to a recipient of aged care supported in an aged care setting, in LR's case the use of restrictive practices by service provides funded by the NIISQ is not regulated under the NIISQ Act.
• [46] It is now convenient to set out below an overview of Queensland's statutory framework and QCAT's jurisdiction.

The Tribunal's jurisdiction under the Guardianship and Administration Act 2000 (Qld)

• [47] The Tribunal has jurisdiction to deal with matters it is empowered to deal with under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act') or an enabling Act.[42]
• [48] Relevantly, s 81 of the GA Act provides that the Tribunal has a number of functions including, for example and amongst other things, considering applications for the appointment of guardians and administrators (s 12), appointing guardians and administrators if necessary and reviewing appointments (s 31), and giving approval under ch 5B for the use by 'a relevant service provider of a restrictive practice in relation to an adult to whom the chapter applies, and reviewing approvals' (ch 5B). The GA Act refers to the person to whom the proceeding before the Tribunal relates to as the adult. Adults with impaired capacity are the primary focus of the GA Act.[43]
• [49] Relevant to the appointment of a guardian for a personal matter and an administrator for a financial matter is s 12 under the GA Act.[44] Section 12(4) of the GA Act expressly states that s 12 does not apply for the appointment of a guardian for a restrictive practice matter under ch 5B. The Tribunal also has the power to review an existing appointment of a guardian or administrator under s 31.
• [50] The GA Act acknowledges that an adult's right to make decisions is fundamental to the adult's inherent dignity.[45] Further, as provided in s 5, the right of an adult with impaired capacity to make decisions should be restricted, and interfered with, to the least possible extent. Further, an adult with impaired capacity has a right to adequate and appropriate support for decision-making.[46]
• [51] The purpose of the GA Act is, as provided under s 6, to strike an appropriate balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making and the adult's right to adequate and appropriate support for decision-making.
• [52] Section 7 provides the way purpose is achieved and provides that, amongst other things, an adult is presumed to have capacity for a matter, confers jurisdiction on the Tribunal to administer particular aspects of the scheme and provides for the appointment of the public advocate for systemic advocacy.
• [53] Section 7A provides that the GA Act is to be read in conjunction with the Public Guardian Act 2014 (Qld) ('Public Guardian Act') which provides for the Public Guardian and the community visitor program (adult).
• [54] Under the Public Guardian Act, the community visitor visits a 'visitable site' which means, a premise, other than a private dwelling, at which a 'funded adult [who has impaired capacity for a matter] participant' lives and receives services or supports that are paid for wholly or partly from funding under the NDIS and, amongst other things, are provided under the adult's participant's plan and are provided by a registered NDIS provider (s 39). The purpose of the program involving the community visitor is to 'protect the rights and interests of consumers at the visitable sites'.[47] As provided under s 47 of the Public Guardian Act, the visitor must prepare a report on the visit and give a copy of the report to the Public Guardian. Further, relevant to a restrictive practice being used at the visitable site under ch 5B approval, the community visitor may give a copy of the report to the tribunal.[48]

• [55] There are many important and relevant sections of the GA Act that apply when the Tribunal is exercising a function or power under the GA Act. For example, the General Principles under s 11B ('the GPs') that must be applied by a person or other entity that performs a function or exercises a power under the GA Act.[49]
• [56] Also, a person making a decision for an adult on an informal basis must apply the GPs in making the decision.[50] The community is encouraged to apply and promote the GPs.[51]
• [57] The Queensland Court of Appeal has observed that 'the GPs are not fixed rules, but rather considerations which must genuinely be taken into account to the extent appropriate in the circumstances'.[52] The GPs provide, amongst other things, that an adult is presumed to have capacity for a matter and recognises an adult as having the same human rights and fundamental freedoms regardless of a particular adult's capacity.[53]
• [58] Further, the GPs recognise important matters to be taken into account to empower an adult to exercise human rights and fundamental freedoms, and amongst other things, recognises an adult's right to participate to the greatest extent practicable in decision-making.[54]
• [59] Importantly, and relevant to LR's case is GP 5 that recognises when an adult is an Aboriginal or Torres Strait Islander and acknowledges the importance of maintaining the adult's cultural and linguistic environment and values, including Aboriginal tradition and Island custom that must be taken into account.[55]

The Human Rights Act 2019 (Qld)

• [60] The Tribunal is required to make a decision in a way that is compatible with human rights and in making a decision under the GA Act must give proper consideration to relevant human rights.[56]
• [61] The main objects of the Human Rights Act 2019 (Qld) ('Human Rights Act') is to, amongst other things, protect and promote human rights, to build a culture in the Queensland public sector that respects and promotes human rights, and to help promote a dialogue about the nature, meaning and scope of human rights.
• [62] Relevant to LR's case are rights that will be limited and engaged by the appointment of a guardian to make decisions about his restrictive practice matters -
  • the right to be recognised as a person who is equal before the law who can make their own decisions (s 15);
  • the right to privacy and not to have personal and sensitive information interfered with as a result of the information being shared with others such as an appointed guardian (s 25);
  • the right to be protected from torture and cruel, inhumane or degrading treatment as a result of restrictive practices in use to respond to behaviours of harm without the person's full, free and informed consent (s 17);
  • the right to be treated with humanity and with respect for the inherent dignity of the 'human person' who is deprived of their liberty as a result of restrictive practices being used (s 30);
  • the right to identify as an Aboriginal person who holds distinct cultural rights and to enjoy, maintain, control, protect and develop their identity and, amongst other things, to enjoy kinship ties and to maintain and strengthen their distinctive spiritual, material and economic relationship with the land and the right not to be subjected to forced assimilation or destruction of their culture (s 28); and
  • the right to a fair hearing because the person is unable to communicate their views and wishes about the appointment of a guardian (s 31).
• [63] The Tribunal is satisfied that the limits imposed on LR's human rights by the appointment of a guardian (should an order be made) to make decisions about restrictive practices are reasonable and justified in accordance with s 13 of the Human Rights Act. The GA Act, which gives the Tribunal the power to appoint a guardian, seeks to strike a balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making and the adult's right to adequate and appropriate support for decision-making.
• [64] Here, the need for support in LR's decision-making is paramount because LR has communication deficits. Further, there is evidence before the Tribunal that the restrictive practices are necessary for LR's care and support and without the use of chemical restraint and physical restraint necessary supports and services for LR will be impacted and his freedoms limited. As discussed above, LR relies on service providers in all aspects of his life.

• [65] The Tribunal has jurisdiction under ch 5B of the GA Act to appoint a guardian for a restrictive practice matter and approve containment and seclusion with or without the use of other restrictive practices, as those terms are defined under the DS Act.
• [66] Chapter 5B is headed 'Restrictive Practices' and applies, as provided under s 80R of the GA Act:

This chapter applies to an adult with an intellectual or cognitive disability who receives disability services from a relevant service provider.[57]

• [67] The purpose of ch 5B is set out under s 80S(1) and (2) and enables, for example and amongst other things, the Tribunal to appoint a guardian for the adult and to review the appointment. Further, s 80S(2) provides relevant criteria for guardians for a restrictive practice matter and informal decision-makers for deciding whether to consent to the use of particular restrictive practices.[58]
• [68] The power to appoint a guardian for a restrictive practice matter comes from s 80ZD. As provided under s 80R, ch 5B only applies to an adult with an intellectual or cognitive disability who receives disability services from a relevant service provider.
• [69] Under s 80ZD and relevant to the appointment of a guardian for restrictive practices is subsection (6) that provides the Tribunal may make an appointment on its own initiative or on an application under s 80ZP. Section 80ZP lists relevant persons who may bring an application including as stated under s 80ZP(c), 'a relevant service provider providing disability services to an adult'.
• [70] Section 80U of the GA Act provides:

disability services means disability services or NDIS supports or services under the Disability Services Act 2006.

• [71] 'Disability services' is defined in s 12 of the DS Act:
  1. 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.

• [72] Under s 12A of the DS Act, 'NDIS supports or services' means:

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).

• [73] As provided under s 80R of the GA Act, ch 5B applies to an adult with an intellectual or cognitive disability who receives disability services from a relevant service provider.
• [74] Schedule 4 of the GA Act provides:

'relevant service provider' see the Disability Services Act 2006, section 140(3)

• [75] Section 140 of the DS Act provides:
  1. Application of part

(1) This part applies in relation to the following service providers that provide disability services or NDIS supports or services to an adult with an intellectual or cognitive disability -

(a) an NDIS service provider;

(b) a funded service provider;

(c) the department;

(d) another service provider prescribed by regulation for this section.

(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 or NDIS supports or services prescribed by regulation.

(3) A service provider is a relevant service provider to the extent this part applies in relation to the provider under subsections (1) and (2).

(4) To remove any doubt, it is declared that this part applies in relation to a relevant service provider in relation to the provision of disability services or NDIS supports or services to all adults with an intellectual or cognitive disability receiving disability services or NDIS supports or services from the provider even if particular disability services or NDIS supports or services are not provided with funding received from the Commonwealth or the State.

• [76] Section 12 of the Disability Services Regulation 2017 (Qld) applies to determine if a service provider is a provider that is not caught for the purposes of s 140(2).[59]
• [77] A 'NDIS service provider' under s 15 of the DS Act means:
  1. 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

• [78] In the present matter, and as discussed below, there is evidence to indicate that LR has a cognitive disability arising from the 2019 accident. LR lives in an SDA funded by the NDIS and receives treatment, care and support in his accommodation setting from Unidex funded by the NIISQ (not the NDIS). Unidex is also a registered NDIS provider.
• [79] Section 80R of the GA Act only applies to LR if he receives 'disability services' from a 'relevant service provider'. 'Disability services' under the GA Act means 'disability services or NDIS supports or services under the DS Act'.[60]
• [80] A 'relevant service provider',[61] for s 140(3) (as provided under s 140(1)), includes service providers that provide 'disability services or NDIS supports or services to an adult...'.
• [81] Further, s 140(4) of the DS Act makes clear that 'this part applies in relation to a service provider... even if particular disability services or NDIS supports or services are not provided with funding received from the Commonwealth or the State'.
• [82] Section 12A of the DS Act defines 'NDIS supports or services' as supports or services' provided under the NDIS, '...to the extent that providing supports or services is funded by the payment of an NDIS amount...'.
• [83] As discussed above, the services Unidex provides to LR are not funded by the NDIS.
• [84] Section 80R of the GA Act provides that ch 5B applies '...to an adult...' who receives 'disability services from a relevant service provider'.
• [85] It is necessary for the Tribunal to determine whether services being provided by to LR are 'disability services' for the purposes of s 80R. Further, whether Unidex is a 'relevant service provider'.
• [86] This raises a question of statutory construction, not just of s 80R of the GA Act, but more broadly of s 140(3) and relevant provisions of the DS Act and GA Act, which when read together determines when a service provider is a 'relevant service provider' for which s 140 applies.
• [87] It is convenient to now consider the legislative history of the restrictive practices regime in Queensland because there have been legislative amendments to s 140 of the DS Act. As held by the High Court, the legislative history of a provision may inform the meaning of a statutory provision as amended.[62]

Legislative history of restrictive practices in Queensland - amendments to the GA Act (ch 5B) and DS Act (s 140 and pt 6)

• [88] In 2008 the GA Act and DS Act was amended to create a legislative scheme for restrictive practices.[63] The amendments gave the Tribunal the power to appoint a guardian for a restrictive practice and for the Tribunal to approve containment and seclusion as defined under the DS Act.
• [89] As discussed in the 2008 explanatory notes ('ENs'), the amendments created 'a legislative scheme to safeguard the rights of adults with an intellectual or cognitive disability who have "challenging behaviour" and where restrictive practices may be required to manage behaviour'.[64] The 2008 ENs make clear that the scheme only applies to adults with an intellectual or cognitive disability who are in receipt of disability services provided or funded by Disability Services Queensland ('DSQ').[65] Further, the 2008 ENs recognise the limited protection for the individual against potential abuse or misuse of restrictive practices.[66] The relevant extract from the 2008 ENs is set out below:[67]

It also leaves service providers, and individuals acting on their behalf, potentially exposed to civil or criminal actions such as assault or deprivation of liberty. Whilst there could be cases where the application of restrictive practices is justified at law, those would depend on the individual circumstances. For example, if a person displays sudden violent behaviour which is likely to cause harm to another person, then restraint using reasonable force that is necessary to defend against the risk of harm to that person may be used (see section 271 of the Criminal Code).

• [90] Further legislative changes were made in 2011, 2014, 2019, 2020 and 2023. In 2014, amendments to the DS Act made clear that the scheme applies to a funded service provider in relation to the provision of disability services to all adults with an intellectual or cognitive disability receiving disability services from the funded service provider even if the disability services are not provided with the funding received.[68]
• [91] In 2019 amendments introduced, due to the NDIS framework, replaced existing provisions under the DS Act titled 'service providers to which pt 6 applies' and inserted s 140 titled 'application of part'.[69] The newly inserted s 140 (commenced on 1 July 2019) defines a 'relevant service provider' and makes clear when the part applies in relation to 'the following service providers' listed under s 140 including and amongst others, 'a NDIS provider'. The 2019 ENs state:

The NDIS [Quality and Safeguarding Framework] and the NDIS Quality and Safeguards Commission will commence operation in Queensland from 1 July 2019. From this time the NDIS Commission will have responsibility for the oversight of registered NDIS providers in Queensland. Functions including worker screening, authorising the use of restrictive practices and operating a community visitor function will remain the responsibility of Queensland.[70]

• [92] Further, the 2019 ENs state the purpose of the Bill is to ensure the DS Act operates in 'conjunction' with the Commonwealth framework. The relevant extract of the EN is set out below:[71]

The purpose of the Bill is to:

1. ...

2. ensure that the [DS Act] operates in conjunction with the Commonwealth legislative framework to provide a strong quality and safeguards framework, in particular in relation to the authorisation of restrictive practices and worker screening;

3. ensure that existing quality and safeguards under the [DS Act] continue to apply to disability services currently regulated under the [DS Act] that will be outside of the NDIS;

...

1. amend the [Public Guardian Act] to ensure the community visitor (adult) and (child) must continue to visit visitable sites where certain NDIS participants are in order to protect the participants' rights and interests; and
2. enable appropriate information sharing to occur with the NDIS Commission to assist with the performance of the NDIS Commissioner's functions under the NDIS Act.

• [93] The 2019 ENs also state that the Queensland Government will have 'a reduced role in funding disability services at full scheme and will retain limited quality and safeguard functions for registered NDIS providers'.[72] Further, Queensland will only retain responsibility for authorising the use of restrictive practices.[73] Further, a prescribed 'service provider' for which the relevant pt 6 does not apply is provided under the Disability Services and Other Legislation (NDIS) Amendment Regulation 2019 (Qld).[74] The 2019 ENs state that service providers regulated under the Aged Care Act 1997 (Cth), in relation to the provision of disability services to an adult with an intellectual or cognitive disability, are not required to comply with pt 6 of the DS Act. NDIS providers who use restrictive practices in certain settings are only required to report to the NDIS Commission and not to the chief executive:[75]

...NDIS providers who use restrictive practices in the course of providing a class of supports under an NDIS participant's plan are only required to report about the use of restrictive practices to the NDIS Commission and not also report to the chief executive of the Department of Communities, Disability Services and Seniors.

• [94] Amendments to the restrictive practices scheme introduced in 2020 (commenced on 1 February 2021) were to, amongst other things, streamline and strengthen the legislative framework for disability worker screening in Queensland.[76] Relevant to s 140 of the DS Act was the insertion of the words 'NDIS supports or services' after the words 'disability services'. The relevant extract from the 2020 ENs for the amendments to s 140 are set out below:

...section 140 (Application of part) to clarify that the part applies in relation to the following service providers that provide disability services or NDIS supports or services to an adult with an intellectual or cognitive disability: an NDIS service provider; a funded service provider; the department; and another service provider prescribed by regulation. These changes ensure consistency with other amendments to the [DS Act] that are required to update the terminology used to refer to NDIS disability work and State disability work. It does not change the current policy intent.[77]

• [95] In 2023, a 'service provider' who is 'prescribed' for which the relevant pt 6 does not apply was amended under the Disability Services Amendment Regulation 2023 (Qld) to exempt approved providers under the Aged Care Quality and Safety Commission Act 2018 (Cth). The 2023 ENs refer to the 2020 amendments (introduced on 1 February 2021) and observe that the amendments excluding 'NDIS supports or services' from 'disability services' (s 6 of the DS Act) were 'necessary to facilitate the implementation of a nationally consistent approach to the screening of workers providing NDIS services'.[78] Further, an unintended consequence of the amendments to the definition 'disability services' from 1 February 2021 is that Queensland's exemption no longer applies to an approved provider under the Aged Care Quality and Safety Commission Act (that applied at the time) in the 'provision of services which include NDIS supports or services to an adult in [residential aged care]'.[79]

The jurisdiction question: Does LR fall within the cohort of ch 5B matters (s 80R)?

• [96] The words used in an Act should be interpreted in a way that is consistent with the language and purpose of all of the provisions of the Act.[80]
• [97] The GA Act has been described by the Queensland Court of Appeal as remedial in nature and 'protective of the rights and property of incapacitated persons'.[81] As such, the Court held that the GA Act should be 'construed liberally'. The relevant passage from the Court of Appeal decision in Bergman v DAW[82] is set out below:[83]

[42] Also, it would be wrong to view this legislation as detracting from common law rights. Rather, the Act is remedial in nature and protective of the rights and property of incapacitated persons. As such, the legislation should be construed liberally. The fact that in other States the legislatures have chosen to make express provision for the power a protected person whose property is under the equivalent of administration has to deal with his or her property and for the consequences of an impermissible dealing provides scant support for the appellant's argument. Such provisions may well have been inserted out of an abundance of caution. In some cases they have been inserted so as to provide a more comprehensive and flexible framework for dealing with transactions by protected persons. Also, such legislation was enacted long after it had been established that a purported disposition of his or her property by an incapacitated person the control of whose property had passed to the Crown or a receiver appointed under a statute was void. Authorities in this regard are discussed below.

• [98] The High Court says that when construing a statute, begin with the text itself.[84] The language used in the text of the statute is the 'surest guide to legislative intention', that may require a consideration of the context which includes the general purpose and policy of a provision.[85]
• [99] If the section to be interpreted contains a definition, the words of the definition should be read into the section and then the section interpreted as a whole.[86] The High Court held in Kelly v The Queen[87] that 'to construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment'.[88]
• [100] A definition is 'no more than an aid to the construction of the statute and [does] not operate in any other way'.[89] Further, s 32A of the Acts Interpretation Act 1954 (Qld) provides that definitions in or applicable to an Act apply except so far as the context or subject matter otherwise indicates or requires.
• [101] The purpose of ch 5B, as discussed above, is to appoint a guardian for a restrictive practice matter for an adult and to provide criteria for guardians for restrictive practices.
• [102] Section 80R (for ch 5B) applies to an adult...who receives 'disability services' from a 'relevant service provider'. The meaning of 'disability services' under s 80U of the GA Act has a wider import than the meaning of 'disability services' as provided under the DS Act (s 12). Under s 80 of the GA Act, 'disability services' means 'disability services or NDIS supports or services under the DS Act'.
• [103] Relevant to LR's case, s 80R, when read together with the meaning of 'disability services' under the GA Act, means 'disability services or NDIS supports or services'. 'Disability services' under the DS Act means a number of services, as provided, including 'accommodation support services', however, does not include 'NDIS supports or services'. Further, a 'relevant service provider' as defined under the GA Act refers to s 140(3) of the DS Act and s 140(1) that applies in relation to service providers that provide 'disability services or NDIS supports or services...'.
• [104] Section 140(4) of the DS Act makes clear that s 140(1) applies in relation to the 'provision of disability services or NDIS supports or services' from the provider even if particular disability services or NDIS supports or services are not provided with funding received from the Commonwealth or the State.
• [105] 'Disability services' as provided under s 12 of the DS Act, means, amongst other things, 'accommodation support services'. 'Accommodation support services' is not defined under the DS Act.[90] Applying an ordinary meaning to the term 'accommodation support services', the words 'support service' means '(a) an ancillary service such as administration or maintenance...; (b) a type of assistance or resource providing help to a particular group of people...'.[91] Further, the word 'support' means 'the action or an act of helping a person...' and 'services' means 'to be of service or perform a service'.[92]
• [106] It is open for the Tribunal to find that LR is receiving 'disability services', which includes 'accommodation support services' and is, more broadly 'disability services or NDIS supports or services' for the purposes of s 80R of the GA Act. There is evidence before the Tribunal, further considered below, that services including treatment, care and support provided by Unidex are necessary to support LR in his accommodation setting.
• [107] Without the necessary services provided by Unidex including the use of restrictive practices, LR would be unsupported in his accommodation setting. Further, LR is unable to live in his accommodation without the treatment, care and support provided by Unidex. This is because LR is limited in his mobility and ability to communicate. LR has a history of behaviours including aggression, and without the use of restrictive practices, as that term is defined under the DS Act, LR and the safety of staff who support LR in his accommodation are at risk of harm.
• [108] The use of the word 'or', as it appears in the definition of 'disability services' under s 80U of the GA Act as meaning 'disability services or NDIS supports or services' for the purposes of s 80R, is not, in the Tribunal's view, to be read as disjunctive. Whether the word 'or', when used in a statute, will be read as disjunctive will depend upon the context in which the word is used and the purpose of the legislation.[93]
• [109] Here, a broad interpretation of s 80R to capture an adult who receives 'disability services or NDIS supports or services' meaning 'or as well' ('and/or') is preferred and best achieves the purpose of the GA Act. That is, to provide a mechanism for the use of restrictive practices by a relevant service provider. Further, to provide criteria for guardians for a restrictive practice matter (s 80S) and to provide adequate and appropriate support for decision-making (s 5 and s 6(b)) and to apply the GPs, including to uphold human rights and fundamental freedoms.
• [110] To interpret s 80R in a way as to exclude a service provider, who is a registered NDIS provider, providing support that includes services that are necessary for the adult to be supported in their NDIS accommodation setting because the services are not funded by NDIS will have the undesirable outcome of reading down the provision (s 80R). An interpretation of s 80R to include a service provider who is providing 'disability services and/or NDIS supports or services' to an adult, in this matter LR, living in SDA aligns with the purpose of the GA Act. Without the use of restrictive practices, LR's rights and freedoms will be limited because necessary supports that include services will be impacted. Chapter 5B provides a legal mechanism for the use of restrictive practices necessary to support LR in his accommodation setting.
• [111] For s 80R of the GA Act, a 'relevant service provider', for which s 140 applies, includes a provider who provides 'disability services or NDIS supports or services' to an adult funded under the NDIS (s 12A). A NDIS service provider means a registered NDIS provider (s 15).
• [112] In the present case, Unidex is a registered NDIS provider providing 'disability services and/or NDIS supports or services' to LR. The services are necessary to enable LR to reside in his SDA funded by the NDIS.
• [113] As discussed above, s 140(4) makes clear that s 140(1) applies even if the disability services or NDIS supports or services are not provided with funding received from the Commonwealth or the State. Here, as discussed above, the legislative history of s 140 of the DS Act further supports the Tribunal's interpretation of s 80R to include an adult receiving 'disability services and/or NDIS supports or services' funded by the NIISQ. Amendments made to s 140 of the DS Act make clear as to when the part applies and to exempt relevant service providers caught by the Aged Care Act.
• [114] The Tribunal agrees with the Public Advocate's written submissions that had Parliament intended for s 140 to apply to a particular cohort of service providers they could have made the legislative changes.[94]
• [115] The Tribunal agrees with the oral submissions made by the appointed representative, ADA Law, in the hearing that to not appoint a guardian for restrictive practices has significant consequences to LR's human rights because restrictive practices will be used without LR's consent. This submission further supports the Tribunal's broad interpretation of s 80R that is to be read together with the DS Act, to apply to LR in a way that is consistent with the language used in the GA Act.[95]
• [116] The GA Act, and in particular ch 5B, applies to an adult with an intellectual or cognitive disability who receives disability services from a relevant service provider. Importantly, ch 5B, when read together with relevant provisions of the DS Act, provides criteria for guardians for a restrictive practice matter to consent to the use of particular restrictive practices and applies even if particular 'disability services or NDIS supports or services' are not provided with funding received from the Commonwealth or the State. An interpretation of s 80R, that is to be read together with the DS Act, to apply to LR is consistent with the language used in the GA Act. Further, the Tribunal's interpretation is consistent with the purpose of the GA Act to, amongst other things, acknowledge LR's right to adequate and appropriate support for decision-making and to apply the GPs, including to uphold LR's human rights and fundamental freedoms.
• [117] The answer to the question identified above, does LR fall within the cohort of ch 5B matters (s 80R) is: yes.

Application for the appointment of a guardian for LR for a restrictive practice matter

• [118] The Tribunal has the power under s 80ZD of the GA Act to appoint a guardian for a restrictive practice matter if satisfied as to certain matters as provided under subsection (1). Further, relevant requirements for giving consent for restrictive practice (general) are provided under s 80ZE.[96]
• [119] As discussed above, there is an application for the appointment of a guardian for restrictive practices. The Tribunal has found that ch 5B applies. For the purposes of s 80ZP of the GA Act, the Tribunal is satisfied that Unidex are a relevant service provider who may apply to the Tribunal for the appointment of a guardian.
• [120] LR lives in a SDA funded by the NDIS. LR receives treatment, care and support from Unidex in his accommodation setting, funded by the NIISQ. Unidex is a registered NDIS and NIISQ provider responsible for treatment, care and support. The Tribunal is satisfied that the requirements for a guardian for a restrictive practice (general) matter apply.[97]
• [121] There is medical evidence in the form of reports, assessment and observations contained in a document titled 'comprehensive behaviour support plan' ('BSP') that indicates LR has a cognitive disability.
• [122] Relevant to LR's capacity to make decisions about his restrictive practice matters is the medical evidence of Dr Patchett, treating general practitioner. Dr Patchett reports, on 18 February 2025, that LR is unable to participate and give consent for decisions due to a traumatic brain injury.[98] LR is reported to have epilepsy, requires a wheelchair for mobility and, as stated, has 'aggression' and behaviours described as 'swearing, hitting'. Dr Patchett reports that medication, risperidone, is prescribed for 'behaviour management' and that LR has no understanding of his restrictive practices.[99] Dr Patchett reports that LR is unable to make decisions about his personal and health care matters.
• [123] The BSP details LR's accommodation and service needs, and details, amongst other things, behaviours of harm and restrictive practices, namely, chemical restraint and physical restraint, in use by service providers.
• [124] The behaviours detailed in the BSP include physical aggression such as raising a closed fist, hitting and kicking others and grabbing staff's hands, pinching and scratching.[100] The behaviours are reported to occur at times during personal care routine, and during transfers or repositioning. The duration of the behaviours is reported to be for a few minutes. The BSP also details the use of chemical restraint, referred to as medication prescribed by Dr Patchett for the purpose of 'behavioural control'. Further, there is reference to physical restraint being used by service providers, such as holding LR's arm or hand to prevent him from striking out at service providers when needed, during personal care routines.
• [125] The Tribunal is satisfied the restrictive practices in use, such as chemical restraint and physical restraint detailed in the BSP, are necessary to ensure LR's safety and the safety of the service providers who support LR in his accommodation setting. Further, the Tribunal has considered the types of services provided to LR in his accommodation setting and has found that the restrictive practices are necessary as part of the treatment, care and support provided to LR in his accommodation.
• [126] In the oral hearing, the author of the plan, Ms Bhardwaj, a psychologist and behaviour support practitioner, confirmed that the terms used in the plan are based on the NDIS legislative framework.
• [127] Ms Bhardwaj declares in the plan that she is, amongst other things, a duly authorised specialist behaviour support provider and has been considered suitable as a NDIS behaviour support practitioner as defined under the NDIS Rules.
• [128] The Tribunal accepts the medical evidence of Dr Patchett and the evidence of Ms Bhardwaj contained in the BSP and given orally in the hearing. The evidence is relevant to determining whether LR has impaired capacity for the matter, the use of restrictive practices, and whether the requirements under s 80ZD of the GA Act have been met.[101] Decisions about the use of restrictive practices such as chemical restraint and physical restraint are complex. It involves a consideration of whether to take medication prescribed by the treating doctor including understanding the benefits and risks associated with the medication and why the medication is necessary. Further, decisions about restrictive practices, such as physical restraint, involve a consideration of why the practice is necessary, when the practice is to be used to control behaviour and restrict free movement in response to behaviour.
• [129] The Tribunal is satisfied that LR has cognitive impairments arising from a traumatic brain injury. LR is unable to understand and communicate his decisions about his restrictive practice matters including the use of chemical restraint and physical restraint. The Tribunal is satisfied that the restrictive practices are necessary to ensure LR's safety and the safety of service providers who support LR in his accommodation. Further, the restrictive practices are necessary in the provision of services to support LR in his accommodation setting. This includes administering medication prescribed to control LR's behaviour that has previously resulted in harm to the staff who support LR in his accommodation setting. Further, LR is unable to understand and communicate his decisions about the need for medication, namely chemical restraint, and use of techniques such as physical restraint to control his behaviours due to behaviours of harm to others.
• [130] It is open for the Tribunal to find that there is a need for decisions to be made about LR's restrictive practice matters and without the appointment of a guardian LR's behaviour is likely to cause harm to himself or others and LR's interests will not be adequately protected. The Tribunal finds that LR is unable to give his consent for service providers to administer medication prescribed to control his behaviour and for service providers to use physical restraints such as blocking techniques to prevent harm to the staff who provide treatment and care to LR.
• [131] The Tribunal has applied s 14 of the GA Act and finds that the Public Guardian is available for appointment as the guardian of last resort. Further, the Public Guardian is able to apply the general principles under the GA Act.[102] An appointment of the guardian for two (2) years is appropriate and the least restrictive based on the evidence before the Tribunal. That is, the provision of services, including the use of chemical restraint and physical restraint, will be necessary to support LR in his accommodation setting.
• [132] As discussed above, the Tribunal identified relevant human rights that may be limited and engaged by the appointment of a guardian to make decisions about LR's restrictive practice matters.
• [133] The Tribunal has applied the GA Act and DS Act consistent with their purposes in a way that is compatible with LR's human rights.[103] As discussed above, the appointment of a guardian for restrictive practice matters for LR is necessary to uphold LR's rights and to support LR in his decision-making. Further, without the appointment of a guardian for restrictive practice matters, LR's rights may be limited because necessary services to support him will be impacted. The Tribunal has found that restrictive practices are necessary to support LR in his accommodation setting. The Tribunal is satisfied that the limits imposed on LR's human rights by the appointment of a guardian for restrictive practice matters is reasonable and justified in accordance with s 13 of the Human Rights Act. The Tribunal has applied the GPs under the GA Act and is satisfied the order is necessary and the least restrictive based on the evidence before the Tribunal.[104]
• [134] For the application for the appointment of a guardian for restrictive practices, the Public Guardian is appointed as guardian for restrictive practices (general) for LR.
• [135] The guardian for restrictive practices (general) is to provide a copy of the latest Positive Behaviour Support Plan to the Tribunal six (6) weeks prior to the expiry of the appointment.
• [136] Unless the Tribunal orders otherwise, this appointment remains current for two (2) years.

Application to review the appointment of a guardian for LR

• [137] All present in the oral hearing agreed that in the event that the Tribunal determines ch 5B applies and proceeds to appoint a guardian for LR's restrictive practice matters, the review of the appointment of a guardian is no longer necessary.
• [138] As discussed above, on 20 February 2024, the Public Guardian was appointed as LR's guardian to make decisions about the provision of services including the NDIS. The appointment is reviewable, to be reviewed in five (5) years. It is no longer necessary to review this appointment. It is appropriate to dismiss the application for a review under s 47 of the QCAT Act on the basis that the application is misconceived.
• [139] The Tribunal orders that the application for a review of the appointment of a guardian for LR is dismissed.
• [140] It is desirable to publish the Tribunal's reasons in this matter because of the important issues considered about the use of unregulated restrictive practices and the need for supported decision-making in the use of restrictive practices to uphold relevant human rights.
• [141] As provided under s 114A of the GA Act, generally information about a guardianship proceeding may be published. However, as provided under subsection (2), a person must not, without reasonable excuse, publish information about a guardianship proceeding to the public, or a section of the public, if the publication is likely to lead to the identification of the relevant adult. The Tribunal's reasons are published in a de-identified format.
• [142] For the purposes of s 103 of the GA Act, the Tribunal has in the reasons referenced relevant documents considered credible, relevant and significant to an issue in the proceeding.
• [143] Member Matthews: I agree with the reasons and decision of the Tribunal set out above.

• [144] The Tribunal has found that ch 5B applies to an adult with an intellectual or cognitive disability who receives disability services that means 'disability services and/or NDIS supports or services' from a service provider who is funded by the NIISQ.
• [145] In proceeding to appoint a guardian for a restrictive practice matter under ch 5B, the Tribunal has interpreted the relevant provisions under the GA Act in a way that is consistent with the purpose of the Act. That is, to strike an appropriate balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making and the adult's right to adequate and appropriate support for decision-making. Further, the Tribunal has upheld the GPs under the GA Act and relevant human rights under the Human Rights Act.

[1] See discussion in [89] of these reasons. See Explanatory Notes, Disability Services and Other Legislation Amendment 2008 (Qld).

[2] Application (Form 10) filed on 13 February 2025 by Unidex Healthcare.

[4] Application filed on 13 February 2025.

[5] See Certificate of Advice of Hearing dated 12 September 2025 and Notice of Hearing dated 16 October 2025. All present at the hearing including the s 125 appointed representative (Mr Abraham, ADA Law) agree that LR and his family have been given notice of the hearing for the purposes of s 118 of the GA Act. The Tribunal is constituted for this matter by a Senior Member (who is a legal member) and a Member (who is a legal and First Nations member).

[6] Tribunal Directions dated 28 August 2025.

[7] See NDIS (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) and comprehensive behaviour support plan dated 19 September 2025.

[8] Tribunal Directions dated 8 October 2025. Leave given to intervene pursuant to s 210 of the GA Act.

[9] See s 210 of the GA Act and written submissions filed by the Public Advocate dated 22 September 2025.

[10] The Director Participant was joined as an active party by Order dated 16 October 2025.

[11] The chief executive (disability services) is an active party for a proceeding under ch 5B. See s 80ZQ(a) of the GA Act and Tribunal Directions dated 29 September 2025. For meaning of 'active party', see ss 80ZQ, 119 of the GA Act.

[12] See application (Form 10) filed 13 February 2025 and comprehensive behaviour support plan dated 19 September 2025, written submissions filed by NIISQ dated 22 September 2025, written submissions filed by the Public Advocate dated 22 September 2025, written submissions filed by ADA Law dated 27 October 2025, written submissions filed by the Public Guardian dated 8 October 2025. The Department did not file written submissions. See email from the Department dated 21 October 2025.

[13] Under the National Injury Insurance Scheme (Queensland) Act 2016 (Qld).

[14] Appointment of a guardian under s 12 of the GA Act by Order dated 20 February 2024.

[15] Appointment of an administrator under s 12 of the GA Act.

[16] See health professional report of Dr Patchett dated 18 February 2025.

[17] Written submissions filed by Jason Abraham, ADA Law dated 27 October.

[19] Written submission (report) dated 8 October 2025.

[20] Written submissions dated 22 September 2025.

[24] Ibid; see also DBD [2023] QCATA 160; Re MLI [2006] QGAAT 31.

[26] See letter from the Department of Families, Seniors, Disability Services and Child Safety to the applicant (Unidex) dated 7 May 2025.

[28] See s 144 of the DS Act for definition of any terms and see s 80U of the GA Act. 'Harm' to a person includes physical harm to the person and a serious risk of physical harm to the person. See s 144 definition of 'harm'.

[30] See s 150 of the DS Act for the meaning of a 'positive behaviour support plan'. The plan is developed by the relevant service provider. For containment and seclusion, the Department develops the plan. See ss 158, 173 of the DS Act.

[31] See NJ [2022] QCAT 283, [164].

[32] See s 9 of the National Disability Insurance Scheme Act 2013 (Cth) that defines a 'restrictive practice' and the NDIS Rules.

[34] See Aged Care Act 2024 (Cth); Aged Care Act Rules 2025 (Cth) effective from 1 November 2025. Prior to 1 November 2025, see the Quality of Care Principles 2014 (Cth).

[35] Aged Care Act 2024 (Cth) s 17. See the Aged Care Rules 2025 (Cth).

[36] See the NDIS Rules; Aged Care Rules 2024 (Cth).

[37] Explanatory Notes, National Injury Insurance Scheme (Queensland) Bill 2016 (Qld).

[38] See s 3(1) of the National Injury Insurance Scheme (Queensland) Act 2016 (Qld) ('NIISQ Act').

[39] Effective from 1 November 2025, the Aged Care Act 2024 (Cth) and Aged Care Rules 2025 (Cth) apply.

[42] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 9.

[44] See schedule 2 of GA Act for relevant meaning of 'personal matter' and 'financial matter'.

[47] Public Guardian Act 2014 (Qld) s 40.

[48] Ibid s 47.

[49] GA Act s 11B(1). See also the health care principles, s 11C. See also s 7 that refers to principles to be observed by anyone performing a function or exercising a power under the scheme.

[52] TJ v The Public Trustee of Queensland & Anor [2023] QCA 158, [33].

[53] See GPs 1 and 2 in the GA Act, s 11B.

[56] See NJ that held the Tribunal is acting in an administrative capacity when appointing a guardian under the GA Act. See also s 48 and s 58 of the Human Rights Act 2019 (Qld).

[58] See s 144 of the DS Act for the meaning of 'adult with an intellectual or cognitive disability'.

[59] See s 12 of the Disability Services Regulation 2017 (Qld).

[61] See schedule 4 of the GA Act for meaning of 'relevant service provider' and s 140(3) of the DS Act.

[62] Commissioner of Taxation of the Commonwealth of Australia v Word Investments Limited [2008] HCA 55; (2008) 236 CLR 204. See also s 14B of the Acts Interpretation Act 1954 (Qld).

[63] Amendments introduced under the Disability Services and Other Legislation Amendment Bill 2008 (Qld), commenced 1 July 2008 by proclamation.

[64] Explanatory Notes, Disability Services and Other Legislation Amendment Bill 2008 (Qld).

[68] See Disability Services (Restrictive Practices) and Other Legislation Amendment Act 2014 (Qld), commenced 1 July 2014 by proclamation.

[69] See Disability Services and Other Legislation (NDIS) Amendment Act 2019 (Qld), commenced on 1 July 2019.

[70] Explanatory Notes, Disability Services and Other Legislation (NDIS) Amendment Act 2019 (Qld).

[74] See Disability Services and Other Legislation (NDIS) Amendment Regulation 2019 (Qld), commenced 1 July 2019.

[75] Explanatory Notes, Disability Services and Other Legislation (NDIS) Amendment Regulation 2019 (Qld).

[76] Disability Services and Other Legislation (Worker Screening) Amendment Bill 2020 (Qld).

[77] Explanatory Notes, Disability Services and Other Legislation (Worker Screening) Amendment Bill 2020 (Qld).

[78] Explanatory Notes, Disability Services Amendment Regulation 2023 (Qld).

[80] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355, [69]. See also s 14A of the Acts Interpretation Act 1954 (Qld).

[81] Bergman v DAW [2010] QCA 143, [42].

[84] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27, [47].

[85] Ibid [57]. See also SZTAL v Minister for Immigration and Boarder Protection (2017) 91 ALR 936.

[86] Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216, [103].

[89] Gibb v Federal Commission of Taxation [1966] HCA 74; (1966) 118 CLR 628. See also Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568, [12]-[13], (McHugh J).

[90] See s 14B of the Acts Interpretation Act 1954 (Qld).

[91] Oxford English Dictionary (online at 18 November 2025) 'support service'.

[92] Oxford English Dictionary (online at 18 November 2025) 'support'.

[93] Commissioner of Taxation v Industrial Equity Ltd & Anor [2000] FCA 420; (2000) 171 ALR 1, [19].

[94] Public Advocates written submissions dated 22 September 2025.

[95] See Disorganized Developments Pty Ltd v South Australia (2023) 280 CLR 515, [23].

[96] See s 80U for the meaning of 'restrictive practice (general) matter'.

[98] Health professional report dated 18 February 2025 (document titled MED011).

[101] See schedule 4 and definition of 'capacity'.

[103] Human Rights Act 2019 (Qld) s 48.