NORTHERN TERRITORY OF AUSTRALIA
NATIONAL DISABILITY INSURANCE SCHEME (AUTHORISATIONS)
ACT 2019
As in force at 1 July 2019
Table of provisions
Part 1 Preliminary matters
1 Short title ......................................................................................... 1
2 Commencement .............................................................................. 1
3 Definitions ........................................................................................ 1
4 Application of Act ............................................................................. 3
5 Principles ......................................................................................... 3
6 Meaning of denial of key needs ....................................................... 5
7 Meaning of restrictive practice ......................................................... 5
8 Application of Criminal Code ........................................................... 6
Part 2 Senior Practitioner
9 Appointment of Senior Practitioner .................................................. 6
10 Functions ......................................................................................... 6
11 Powers............................................................................................. 7
12 Guidelines........................................................................................ 7
13 Delegation ....................................................................................... 7
Part 3 Authorisation for restrictive practices
14 Application for authorisation or interim authorisation ....................... 7
15 Authorisation or refusal to authorise restrictive practice .................. 9
16 Grounds to authorise a restrictive practice ...................................... 9
17 Prohibited restrictive practices ......................................................... 9
18 Alternative restrictive practice ........................................................ 10
19 Period of authorisation and interim authorisation........................... 10
20 Revocation of authorisation and interim authorisation ................... 11
Part 4 Review of authorisation decisions
21 Reviewable decisions .................................................................... 11
22 Application for review of authorisation decisions ........................... 11
23 Appointment of internal reviewer ................................................... 12
24 Review of decision by internal reviewer ......................................... 12
25 Conduct of review by internal reviewer .......................................... 13
26 Decision by CEO on internal review .............................................. 13
27 Notice of decision of CEO.............................................................. 13
28 Review by NTCAT ......................................................................... 14
National Disability Insurance Scheme (Authorisations) Act 2019 ii
Part 5 Miscellaneous matters
29 Protection from liability .................................................................. 14
30 Offence to disclose certain information .......................................... 14
31 Misleading information ................................................................... 15
32 Approved forms ............................................................................. 16
33 Regulations.................................................................................... 16
ENDNOTES
Section 1 - National Disability Insurance Scheme (Authorisations) Act 2019 - National Disability Insurance Scheme (Authorisations) Act 2019 | Zoe
NORTHERN TERRITORY OF AUSTRALIA
As in force at 1 July 2019
NATIONAL DISABILITY INSURANCE SCHEME (AUTHORISATIONS)
ACT 2019
An Act to provide for the authorisation of restrictive practices for
participants in the National Disability Insurance Scheme
Part 1 Preliminary matters
1 Short title
This Act may be cited as the National Disability Insurance Scheme
(Authorisations) Act 2019.
2 Commencement
This Act commences on the day fixed by the Administrator by
Gazette notice.
3 Definitions
In this Act:
affected person, see section 21(2).
approved form means a form approved under section 32.
authorisation means an authorisation to apply a restrictive practice
to a participant in accordance with a behaviour support plan.
aversion means a practice or action that may be experienced by a
person as noxious, unpleasant or painful.
behaviour support plan means a plan:
(a) developed by an NDIS behaviour support practitioner in
accordance with the NDIS Rules for a participant; and
Part 1 Preliminary matters
National Disability Insurance Scheme (Authorisations) Act 2019 2
(b) that describes the strategies to be used in supporting the
participant's behaviour.
Note for definition behaviour support plan
A behaviour support plan may also integrate relevant orders such as orders in
relation to supervision, monitoring or management conditions of the participant.
CEO means the Chief Executive Officer.
chemical restraint, see paragraph (b) of the definition regulated
restrictive practice in rule 6 of the NDIS Rules.
denial of key needs, see section 6.
environmental restraint, see paragraph (e) of the definition
regulated restrictive practice in rule 6 of the NDIS Rules.
guidelines means the guidelines made by the Senior Practitioner
under section 12.
internal reviewer means a public sector employee appointed
under section 23(1) to review a reviewable decision and to make a
recommendation to the CEO under section 25(2).
interim authorisation means an authorisation to apply a restrictive
practice to a participant in accordance with an interim behaviour
support plan.
interim behaviour support plan means an interim behaviour
support plan within the meaning of the NDIS Rules.
mechanical restraint, see paragraph (c) of the definition regulated
restrictive practice in rule 6 of the NDIS Rules.
misuse of medication means the administration to a person,
contrary to the instructions of the prescriber, of medication
prescribed for the purpose of influencing the person's behaviour,
mood or arousal levels.
NDIS Act means the National Disability Insurance Scheme
Act 2013 (Cth).
NDIS behaviour support practitioner, see rule 5 of the
NDIS Rules.
NDIS provider, see section 9 of the NDIS Act.
NDIS Rules means the National Disability Insurance Scheme
(Restrictive Practices and Behaviour Support) Rules 2018 (Cth).
Part 1 Preliminary matters
National Disability Insurance Scheme (Authorisations) Act 2019 3
overcorrection means a practice where the response to an event
is disproportionate to the event itself.
Example for definition overcorrection
Making a child or young person clean an entire room because they tipped their
meal on the floor.
participant, see section 9 of the NDIS Act.
physical restraint, see paragraph (d) of the definition regulated
restrictive practice in rule 6 of the NDIS Rules.
restrictive practice, see section 7.
reviewable decision, see section 21(1).
seclusion, see paragraph (a) of the definition regulated restrictive
practice in rule 6 of the NDIS Rules.
Senior Practitioner means the Senior Practitioner appointed under
section 9.
Tribunal affected person, see section 28(2).
Note for section 3
The Interpretation Act 1978 contains definitions and other provisions that may be
relevant to this Act.
4 Application of Act
(1) This Act applies in relation to NDIS providers who seek to apply
restrictive practices to participants in the delivery of services to
participants.
(2) If a participant is also a person to whom Part 4 of the Disability
Services Act 1993 applies, this Act prevails.
5 Principles
(1) The principles to be taken into account by NDIS providers in
delivering services to participants with behaviour that has the
potential to cause harm to themselves or others are that:
(a) participants are individuals who have the inherent right to
respect for their human worth and dignity; and
(b) participants, whatever the origin of the participant's disability,
nature, type and degree of disability, have the same basic
human rights as other members of Australian society; and
Part 1 Preliminary matters
National Disability Insurance Scheme (Authorisations) Act 2019 4
(c) participants have the same rights as other members of
Australian society to realise their individual capacities for
physical, social, emotional and intellectual development; and
(d) participants have the same right as other members of
Australian society to services that will support their attaining a
reasonable quality of life; and
(e) participants and their families have the same right as other
members of Australian society to participate in decisions that
affect their lives; and
(f) participants receiving services have the same right as other
members of Australian society to be able to determine their
own best interests in relation to those services, including the
right to exercise choice and control; and
(g) participants have the same right as other members of
Australian society to be connected to family, community,
culture and country; and
(h) participants have the same right as other members of
Australian society to engage as equals and actively participate
in decisions that will affect their lives, support and care to the
full extent of their capacity, including in the provision of
behaviour support; and
(i) participants receiving services have the same right as other
members of Australian society to receive those services in a
manner that results in the least restriction of their rights and
opportunities; and
(j) participants receiving services should actively participate in
decisions about their lives, support and care including
behaviour support that is informed by evidenced-based best
practice; and
(k) participants have the same right as other members of
Australian society of the pursuit of a grievance in relation to
services.
(2) The service must be provided in a way that:
(a) aims to reduce or eliminate the need to use restrictive
practices; and
(b) recognises that:
(i) restrictive practices should occur in limited and specific
circumstances; and
Part 1 Preliminary matters
National Disability Insurance Scheme (Authorisations) Act 2019 5
(ii) restrictive practices should be used as a last resort; and
(c) utilises the least restrictive practice for the shortest period of
time practical in the circumstances; and
(d) ensures transparency and accountability in the use of
restrictive practices; and
(e) recognises that restrictive practices should not be used
punitively or in response to behaviour that does not cause
harm to the participant or others; and
(f) ensures that any restrictive practices are only used in a way
that is consistent with a behaviour support plan or an interim
behaviour support plan for the participant.
(3) The service must be regularly reviewed for its suitability for the
participant.
6 Meaning of denial of key needs
(1) Denial of key needs means to prevent a person's access to basic
needs or personal supports.
(2) In subsection (1), personal supports includes the following:
(a) family;
(b) friends;
(c) peers;
(d) advocates;
(e) possessions.
7 Meaning of restrictive practice
Restrictive practice means any practice or intervention that has
the effect of restricting the rights or freedom of movement of a
person with a disability, and includes the following:
(a) seclusion;
(b) chemical restraint;
(c) mechanical restraint;
(d) physical restraint;
(e) environmental restraint.
Part 2 Senior Practitioner
National Disability Insurance Scheme (Authorisations) Act 2019 6
8 Application of Criminal Code
Part IIAA of the Criminal Code applies to an offence against this
Act.
Note for section 8
Part IIAA of the Criminal Code states the general principles of criminal
responsibility, establishes general defences, and deals with burden of proof. It
also defines, or elaborates on, certain concepts commonly used in the creation of
offences.
Part 2 Senior Practitioner
9 Appointment of Senior Practitioner
(1) The Minister must appoint a public sector employee to be the
Senior Practitioner.
(2) The Minister must be satisfied that the employee has the
qualifications, clinical experience and personal qualities necessary
to exercise the Senior Practitioner's powers and perform the Senior
Practitioner's functions.
10 Functions
The Senior Practitioner has the following functions:
(a) to promote the reduction and elimination of the use of
restrictive practices by NDIS providers to the greatest extent
possible;
(b) to ensure to the greatest extent possible that the rights of
participants who may be subject to restrictive practices are
protected;
(c) to develop guidelines to support NDIS providers in relation to
the use of restrictive practices;
(d) to support NDIS providers to develop and deliver practice
innovation in the reduction and elimination of restrictive
practices according to the intent of the legislation in relation to
the National Disability Insurance Scheme;
(e) to ensure that the authorisation of restrictive practices is
compatible with the United Nations Convention on the Rights
of People with Disabilities 2006;
(f) to disseminate information and provide education about
restrictive practices and the rights of participants;
Part 3 Authorisation for restrictive practices
National Disability Insurance Scheme (Authorisations) Act 2019 7
(g) to provide high level authoritative advice in relation to
contemporary clinical practice developments occurring at
national or international levels in relation to the safe
elimination or reduction of restrictive practices;
(h) to build capacity in the disability service sector through
increasing the level of awareness and understanding of
restrictive practices within the sector and contributing to a
reduction in the use of restrictive practices;
(i) to develop and foster extensive and effective relationships
with a diverse group of persons or entities that have an
interest in or would be affected by the use of restrictive
practices in the disability service sector to influence practice
and enable positive change.
11 Powers
The Senior Practitioner may do all things necessary or convenient
to be done for, or in relation to, the performance of the Senior
Practitioner's functions.
12 Guidelines
(1) The Senior Practitioner may make guidelines for this Act, including
guidelines in relation to the use of restrictive practices.
(2) In developing guidelines under this section, the Senior Practitioner
must consult with relevant persons or entities in the disability
service sector and community members as appropriate.
13 Delegation
(1) The Senior Practitioner may delegate the Senior Practitioner's
powers and functions under this Act to a public sector employee.
(2) The Senior Practitioner must be satisfied that the employee has the
qualifications, clinical experience and personal qualities necessary
to exercise the Senior Practitioner's powers and perform the Senior
Practitioner's functions.
Part 3 Authorisation for restrictive practices
14 Application for authorisation or interim authorisation
(1) An NDIS provider may apply to the Senior Practitioner for an
authorisation or interim authorisation.
Part 3 Authorisation for restrictive practices
National Disability Insurance Scheme (Authorisations) Act 2019 8
(2) An application for an authorisation or interim authorisation must:
(a) be made in the approved form; and
(b) include the following:
(i) particulars of the restrictive practice proposed to be
applied to the participant;
(ii) a copy of the behaviour support plan or interim
behaviour support plan that specifies the proposed
restrictive practice;
(iii) information that shows the provider has engaged in
consultation about the proposed use of a restrictive
practice with:
(A) the participant; and
(B) the participant's family, carers, guardian or other
relevant person;
(iv) particulars of the NDIS provider who will apply the
restrictive practice to the participant;
(v) particulars of any restrictive practice previously applied
to the participant over the 12 month period before the
date of the application;
(vi) any other information the NDIS provider considers
relevant to the application;
(vii) any other information as prescribed by regulation.
(3) The Senior Practitioner may request further information from the
NDIS provider making the application.
(4) If the Senior Practitioner requests further information, the NDIS
provider making the application must provide the information within
28 days after the request is made.
(5) If the information is not provided to the Senior Practitioner within
28 days, the application lapses.
(6) The Senior Practitioner may inspect the place where the restrictive
practice is to be applied to the participant before deciding the
application.
Part 3 Authorisation for restrictive practices
National Disability Insurance Scheme (Authorisations) Act 2019 9
15 Authorisation or refusal to authorise restrictive practice
(1) The Senior Practitioner must consider the application and decide
whether to:
(a) grant the authorisation or interim authorisation; or
(b) refuse to grant the authorisation or interim authorisation; or
(c) propose an alternative restrictive practice for the authorisation
or interim authorisation.
(2) As soon as reasonably practicable after making a decision under
subsection (1), the Senior Practitioner must give written notice of
the decision and the Senior Practitioner's reasons for the decision
to:
(a) the NDIS provider who made the application for the
authorisation or interim authorisation; and
(b) the participant.
16 Grounds to authorise a restrictive practice
The Senior Practitioner may grant an authorisation or interim
authorisation if:
(a) the behaviour support plan or interim behaviour support plan
is consistent with the principles of this Act; and
(b) the behaviour support plan or interim behaviour support plan
is consistent with the guidelines; and
(c) the restrictive practice is necessary to prevent harm to the
participant or others; and
(d) the restrictive practice is the least restrictive approach
reasonably available for the participant.
17 Prohibited restrictive practices
The following restrictive practices may not be authorised by the
Senior Practitioner:
(a) aversion;
(b) overcorrection;
(c) misuse of medication;
(d) denial of key needs;
Part 3 Authorisation for restrictive practices
National Disability Insurance Scheme (Authorisations) Act 2019 10
(e) practices for the purpose of harassment or vilification or
actions that are unethical, degrading or demeaning to a
person or may be perceived by the person or the person's
guardian as harassment or vilification;
(f) practices or actions which limit or deny access or participation
to community, culture and language, including the denial of
access to interpreters;
(g) in relation to a person under the age of 18 years – seclusion;
(h) any other restrictive practice prescribed by regulation.
18 Alternative restrictive practice
(1) If, under section 15(1)(c), the Senior Practitioner proposes an
alternative restrictive practice, the NDIS provider who made the
application for the authorisation or interim authorisation may
respond to the proposal within 28 days after the proposal is made.
(2) The Senior Practitioner must consider the response and decide
whether to:
(a) grant an authorisation or interim authorisation for the
alternative restrictive practice; or
(b) refuse to grant the authorisation or interim authorisation for the
alternative restrictive practice.
(3) As soon as reasonably practicable after making a decision under
subsection (2), the Senior Practitioner must give written notice of
the decision and the Senior Practitioner's reasons for the decision
to:
(a) the NDIS provider who made the application for the
authorisation or interim authorisation; and
(b) the participant.
19 Period of authorisation and interim authorisation
(1) An authorisation is effective for 12 months from the date the
authorisation is made, unless otherwise specified by the Senior
Practitioner in the authorisation.
(2) An interim authorisation is effective for 6 months from the date the
authorisation is made, unless otherwise specified by the Senior
Practitioner in the authorisation.
Part 4 Review of authorisation decisions
National Disability Insurance Scheme (Authorisations) Act 2019 11
20 Revocation of authorisation and interim authorisation
(1) The Senior Practitioner may revoke an authorisation or interim
authorisation at any time.
(2) If the Senior Practitioner revokes an authorisation or interim
authorisation, the Senior Practitioner must give written notice of the
revocation and the Senor Practitioner's reasons for the revocation
to:
(a) the NDIS provider who made the application for the
authorisation or interim authorisation; and
(b) the participant.
Part 4 Review of authorisation decisions
21 Reviewable decisions
(1) A reviewable decision is a decision under section 15(1)(a) or (b),
18(2)(a) or (b) or 20(1).
(2) An affected person, for a reviewable decision, is:
(a) the NDIS provider who made the application for the
authorisation or interim authorisation; or
(b) the NDIS behaviour support practitioner for the behaviour
support plan or interim behaviour support plan; or
(c) the participant or the participant's guardian.
22 Application for review of authorisation decisions
(1) An affected person for a reviewable decision may apply to the CEO
for an internal review of the decision.
(2) Subject to subsection (3), the application must be made within
28 days after written notice of the decision is given to the affected
person.
(3) However, if the reviewable decision is a decision to authorise a
restrictive practice, an affected person mentioned in
section 21(2)(c) may make the application at any time during the
period of the authorisation or interim authorisation.
(4) The application must be in the approved form.
(5) The making of an application under this section does not stay the
operation of the reviewable decision.
Part 4 Review of authorisation decisions
National Disability Insurance Scheme (Authorisations) Act 2019 12
23 Appointment of internal reviewer
(1) The CEO may appoint a public sector employee to review the
reviewable decision and to make a recommendation under
section 25(2) to the CEO in relation to the decision.
(2) The CEO must be satisfied that the employee has the
qualifications, clinical experience and personal qualities necessary
to review the reviewable decision.
(3) The CEO must give written notice of the appointment of an internal
reviewer to each affected person for the decision.
(4) The CEO must, at the same time as giving a notice to each affected
person under subsection (3), give a copy of the notice to the
internal reviewer.
24 Review of decision by internal reviewer
(1) On receipt of an application under section 22 or a copy of a notice
under section 23(4), the internal reviewer must review the Senior
Practitioner's decision.
(2) However, in the circumstances mentioned in subsection (3), the
internal reviewer may reject an application under section 22 without
reviewing the decision.
(3) The circumstances for rejecting an application under subsection (2)
are that the internal reviewer is satisfied that:
(a) the application is frivolous or vexatious; or
(b) the application was made after the period allowed by
section 22 for making the application had expired; or
(c) the application relates to a matter that is the subject of an
application to a court or tribunal.
(4) Without limiting subsection (3)(a), an application is frivolous or
vexatious if, at the time the application was made:
(a) another application under section 22 for an internal review of
the same decision had been made by another person; and
(b) a decision has been made under section 26 on the other
application or the other application has been rejected under
subsection (2).
Part 4 Review of authorisation decisions
National Disability Insurance Scheme (Authorisations) Act 2019 13
25 Conduct of review by internal reviewer
(1) In reviewing the decision, the internal reviewer must:
(a) take into account any matter prescribed by regulation for this
section; and
(b) follow the procedures, if any, for review prescribed by
regulation; and
(c) comply with the rules of natural justice.
(2) After reviewing the decision, the internal reviewer must make a
recommendation to the CEO on whether to:
(a) affirm the decision; or
(b) vary the decision; or
(c) set aside the decision and substitute a new decision.
26 Decision by CEO on internal review
(1) After receiving a recommendation under section 25(2), the CEO
must:
(a) affirm the decision; or
(b) vary the decision; or
(c) set aside the decision and substitute a new decision.
(2) In making a decision under this section, the CEO is not bound by
the recommendation made by the internal reviewer.
27 Notice of decision of CEO
(1) As soon as reasonably practicable after making a decision under
section 26, the CEO must give written notice of the decision to the
following persons:
(a) the applicant for the internal review;
(b) each person who could have applied for an internal review of
the reviewable decision under section 22.
(2) The notice must state the following:
(a) the CEO's decision and the reasons for it;
Part 5 Miscellaneous matters
National Disability Insurance Scheme (Authorisations) Act 2019 14
(b) details of the right the person has under this Act to apply to
the NTCAT for a review of the CEO's decision.
28 Review by NTCAT
(1) The NTCAT has jurisdiction to review a decision under section 26.
(2) A Tribunal affected person for the decision is the applicant under
section 22 and any other person who could have applied under that
section for an internal review of the reviewable decision.
(3) A Tribunal affected person for the decision made under section 26
may apply to the NTCAT for a review of the decision.
Part 5 Miscellaneous matters
29 Protection from liability
(1) A person is not civilly or criminally liable for an act done or omitted
to be done by the person in good faith in the exercise of a power or
performance of a function as any of the following:
(a) the CEO;
(b) the Senior Practitioner;
(c) an internal reviewer.
(2) Subsection (1) does not affect any liability the Territory would, apart
from that subsection, have for the act or omission.
(3) In this section:
exercise, of a power, includes the purported exercise of the power.
performance, of a function, includes the purported performance of
the function.
30 Offence to disclose certain information
(1) A person commits an offence if:
(a) the person obtains information in the course of performing a
function connected with the administration of this Act or
exercising a power under this Act; and
(b) the information is confidential and the person is reckless in
relation to that circumstance; and
(c) the person intentionally engages in conduct; and
Part 5 Miscellaneous matters
National Disability Insurance Scheme (Authorisations) Act 2019 15
(d) the conduct results in the disclosure of the information and the
disclosure is not:
(i) for a purpose connected with the administration of this
Act, including a legal proceeding arising out of the
operation of this Act; or
(ii) to a person who is otherwise entitled to the information;
and
(e) the person is reckless in relation to the result and
circumstance mentioned in paragraph (d).
Maximum penalty: 200 penalty units or imprisonment for
2 years.
(2) Strict liability applies to subsection (1)(a).
(3) If the information mentioned in subsection (1) relates to a person, it
is a defence to a prosecution for an offence against that subsection
if the person has consented to the disclosure of the information.
Note for section 30
In addition to the circumstances mentioned in this section, a person who
discloses information mentioned in this section will not be criminally responsible
for an offence if the disclosure is justified or excused by or under a law (see
section 43BE of the Criminal Code).
31 Misleading information
(1) A person commits an offence if:
(a) the person intentionally gives information to another person
(the recipient); and
(b) the information is misleading and the person has knowledge of
that circumstance; and
(c) the recipient is acting in an official capacity and the person
has knowledge of that circumstance.
Maximum penalty: 200 penalty units or imprisonment for
2 years.
(2) A person commits an offence if:
(a) the person intentionally gives a document to the recipient; and
(b) the document contains misleading information and the person
has knowledge of that circumstance; and
Part 5 Miscellaneous matters
National Disability Insurance Scheme (Authorisations) Act 2019 16
(c) the recipient is acting in an official capacity and the person
has knowledge of that circumstance.
Maximum penalty: 200 penalty units or imprisonment for
2 years.
(3) It is a defence to a prosecution for an offence against
subsection (2) if the person, when giving the document:
(a) draws the misleading aspect of the document to the recipient's
attention; and
(b) to the extent to which the person can reasonably do so – gives
the recipient the information necessary to remedy the
misleading aspect of the document.
(4) In this section:
acting in an official capacity, in relation to a recipient, means the
recipient is exercising powers or performing functions under, or
otherwise related to the administration of, this Act.
misleading information means information that is misleading in a
material particular or because of the omission of a material
particular.
32 Approved forms
The CEO may approve forms for this Act.
33 Regulations
The Administrator may make regulations under this Act.
ENDNOTES
National Disability Insurance Scheme (Authorisations) Act 2019 17
ENDNOTES
1 KEY
Key to abbreviations
amd = amended od = order
app = appendix om = omitted
bl = by-law pt = Part
ch = Chapter r = regulation/rule
cl = clause rem = remainder
div = Division renum = renumbered
exp = expires/expired rep = repealed
f = forms s = section
Gaz = Gazette sch = Schedule
hdg = heading sdiv = Subdivision
ins = inserted SL = Subordinate Legislation
lt = long title sub = substituted
nc = not commenced
2 LIST OF LEGISLATION
National Disability Insurance Scheme (Authorisations) Act 2019 (Act No. 15, 2019)
Assent date 27 May 2019
Commenced 1 July 2019 (Gaz S45, 26 June 2019)