Victorian Numbered Acts Victorian Numbered ActsAfter Division 7 of Part 6 of the Principal Act insert —
In this Division—
"Commissioner" means the Disability Services Commissioner;
"investigation hearing notice" means a notice served under section 132P, including a notice varied under section 132R.
(1) The Commissioner, by instrument, may appoint any person who is employed under Part 3 of the Public Administration Act 2004 , in the administration of this Act, to be an authorised officer.
(2) Before appointing a person under subsection (1), the Commissioner must be satisfied that the person is—
(a) appropriately qualified; and
(b) has successfully completed appropriate training.
132C Identification of authorised officers
(1) The Commissioner must issue an identification document to each authorised officer.
(2) The identification document must contain—
(a) a photograph of the authorised officer; and
(b) the signature of the authorised officer and the Commissioner; and
(c) any other information the Commissioner considers necessary.
(1) An authorised officer must produce the authorised officer's identification document for inspection—
(a) before exercising a power under this Division; and
(b) at any time during the exercise of a power under this Division, if asked to do so.
Penalty: 10 penalty units.
(2) Subsection (1) does not apply to a requirement made by post.
(1) For the purpose of the conduct of an accountability investigation, an authorised officer may visit and inspect any part of any premises on which a service provider who is being investigated provides a service that is being investigated.
(2) An authorised officer may visit and inspect premises under subsection (1) with any assistance the authorised officer reasonably requires.
(3) Before exercising a power under this section, the authorised officer must—
(a) produce the authorised officer's identification document for inspection by the person apparently in charge of the premises; and
(b) explain the purpose of the inspection to the person apparently in charge of the premises.
(4) A power under subsection (1) must not be exercised—
(a) for a premises that is not a residential service, on the premises or any part of premises that is used for residential purposes; or
(b) for a premises that is a residential service, on any part of the premises that is solely occupied by a resident unless the resident consents, or, if the resident is unable to consent the guardian of the resident or, if none, the next of kin of the resident, consents.
(5) For the purposes of subsection (4)(b), if a room is occupied by more than one person, consent must be obtained for all occupants.
(1) An authorised officer who visits and inspects a premises under section 132E may—
(a) make any enquiries in relation to a person with a disability who is receiving services on the premises from the service provider; and
(b) require any thing on the premises to be produced for inspection and inspect that thing or any other thing on the premises to determine if the thing is relevant to the investigation; and
(c) in the case of any document, or document of a particular kind, relevant to the investigation—
(i) require the document to be produced for inspection; and
(ii) examine, make copies of or take extracts from the document; and
(iii) remove the document for so long as is necessary for the making of copies or the taking of extracts; and
(d) make any still or moving image, audio recording or audio-visual recording relevant to the investigation; and
(e) bring any equipment onto the premises that the authorised officer believes on reasonable grounds is necessary for the examination or processing of any documents found at the premises to determine if they are relevant to the investigation; and
(f) if it is relevant to the investigation, see and interview—
(i) any person with a disability who is on the premises; and
(ii) any relative of the person with a disability who is on the premises; and
(iii) any other person of significance to the person with a disability who is on the premises; and
(g) if it is relevant to the investigation, require any of the following persons to answer any question—
(i) the service provider;
(ii) any person on the premises who is employed or engaged in providing the service;
(iii) any person on the premises who is a volunteer involved in providing the service.
(2) An authorised officer must not exercise a power under subsection (1)(c) in relation to the medical records of a person with a disability unless the authorised officer has first obtained the consent of the person with the disability, or, if the person is unable to consent, the consent of the guardian or, if none, the next of kin of the person.
(1) An authorised officer must not—
(a) exercise a power to interview a person with a disability under section 132F(1)(f)(i) unless the authorised officer has first obtained the consent of the person with a disability, or, if the person is unable to consent, the consent of the guardian, or, if none, the next of kin of the person; or
(b) exercise a power to interview a person under section 132F(1)(f)(ii) or (iii), unless the authorised officer has first obtained the consent of that person.
(2) If an authorised officer interviews a person with a disability under section 132F(1)(f)(i), the authorised officer must—
(a) take all reasonable steps to mitigate any negative effect of the interview on the person; and
(b) allow the person's guardian or next of kin to be present.
(3) Before interviewing a person under section 132F(1)(f) or (g) the authorised officer must inform the person of the effect of sections 132X and 132Y.
(1) The Commissioner may apply to a magistrate for the issue of a search warrant for particular premises, if the Commissioner believes on reasonable grounds that there is on the premises evidence that is relevant to an accountability investigation.
(2) If the magistrate is satisfied, by evidence on oath or affirmation or by affidavit, that there are reasonable grounds to believe that there is evidence relevant to an accountability investigation on the premises, the magistrate may issue a search warrant in accordance with the Magistrates' Court Act 1989 authorising the Commissioner or an authorised officer to enter the premises and search for the evidence named or described in the warrant.
(3) In addition to anything the person executing the warrant may do under section 78 of the Magistrates' Court Act 1989 , under the warrant the magistrate may authorise the person to do any of the following—
(a) require a document named or described in the warrant to be produced for inspection;
(b) examine, make copies of or take extracts from a document named or described in the warrant;
(c) remove a document named or described in the warrant for so long as is necessary to make copies of or take extracts from the document;
(d) bring any equipment onto the premises that the person executing the warrant believes on reasonable grounds is necessary for the examination or processing of any document found at the premises to determine if it is named or described in the warrant.
(4) A warrant issued under this section must state—
(a) the purpose for which the search is required and the nature of the accountability investigation; and
(b) any conditions to which the warrant is subject; and
(c) whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and
(d) a day, not later than 20 business days after the issue of the warrant, on which the warrant ceases to have effect.
(5) Except as provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 apply to warrants issued under this section.
(6) Despite subsection (5) and section 78(1)(b)(iii) of the Magistrates' Court Act 1989 , a warrant issued under this section must not authorise the person executing the warrant to arrest a person.
(1) A person who executes a warrant issued under section 132H—
(a) must announce that the person is authorised by the warrant to enter the premises; and
(b) if the person has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises.
(2) If the occupier is present at the premises where a warrant issued under section 132H is being executed, the person executing the warrant must—
(a) identify themself to the occupier; and
(b) give the occupier a copy of the warrant.
(3) If the occupier is not present at the premises where a warrant issued under section 132H is being executed, the person executing the warrant must—
(a) identify themself to the person apparently in charge of the premises; and
(b) give the person a copy of the warrant.
A person must not, without reasonable excuse, hinder or obstruct a person who is exercising a power under this Subdivision or under a warrant issued under this Subdivision.
Penalty: In the case of a natural person, 60 penalty units;
In the case of a body corporate, 300 penalty units.
If it is reasonably necessary for the purposes of an accountability investigation, an authorised officer, exercising a power to visit a premises under this Subdivision or to enter a premises under a warrant under section 132H, who produces the authorised officer's identification document for inspection by the occupier of the premises or the person apparently in charge of the premises may require that person to give reasonable assistance to the authorised officer.
(1) In an accountability investigation, the Commissioner may carry out any inquiries into the subject matter of the investigation that the Commissioner believes are necessary.
(2) In an accountability investigation—
(a) the procedure is at the discretion of the Commissioner; and
(b) the Commissioner must act with as much expedition and with as little formality as the requirements of this Act and the proper investigation of the matter allow; and
(c) the Commissioner is not bound by the rules of evidence; and
(d) the Commissioner is bound by the rules of natural justice; and
(e) before making a decision affecting a person, the Commissioner must give the person an opportunity to make submissions to the Commissioner about the decision.
A person who is providing services that are the subject of an accountability investigation must ensure that the Commissioner or an authorised officer is provided with any assistance in connection with the investigation that the Commissioner or the authorised officer reasonably requires.
In an accountability investigation if the Commissioner decides not to conduct a hearing, for the purpose of the investigation, the Commissioner—
(a) may take oral or written submissions; and
(b) may send for persons, documents or other things; and
(c) must keep a record of all submissions given before the Commissioner and decisions made by the Commissioner.
(1) If the Commissioner decides to conduct a hearing in an accountability investigation into a complaint, the Commissioner must give written notice of the hearing to the parties to the complaint.
(2) If the Commissioner decides to conduct a hearing in an accountability investigation (other than for a complaint), the Commissioner—
(a) must give written notice of the hearing to the service provider being investigated; and
(b) if the investigation is to consider allegations of abuse or neglect of a person with a disability, may give written notice of the hearing to the person alleged to have been abused or neglected; and
(c) if the investigation is to consider allegations against any person, must give written notice of the hearing to the person about whom the allegation has been made.
(3) A notice under subsection (1) or (2) must—
(a) be given at least 10 business days before the date on which the hearing is to commence; and
(b) specify the date on which the hearing is to commence; and
(c) specify the place at which the hearing is to be held.
(1) For the purpose
of a hearing in an accountability investigation, the Commissioner may serve
written notice
on a person requiring the person—
(a) to produce a specified document or thing to the Commissioner before a specified time and in a specified manner; or
(b) to attend the hearing at a specified time and place to produce any specified document or thing; or
(c) to attend the hearing at a specified time and place, and from then on from day to day until excused, to give evidence; or
(d) to attend the investigation at a specified time and place, and from then on from day to day until excused, to give evidence and to produce any specified document or thing.
(2) On application under subsection (3),
if a
person with a disability is unable to attend the hearing, because of the
person's disability, health or other personal circumstances, the Commissioner
may agree that the person may give evidence—
(a) by video link; or
(b) by attending at another place agreed on by the Commissioner and the person.
(3) A person with a disability on whom a notice to attend a hearing has been served under subsection (1) may apply to the Commissioner for an agreement under subsection (2).
(4) The Commissioner must—
(a) take all reasonable steps to mitigate any negative effect that the giving of evidence might have on a person with a disability; and
(b) allow the person's guardian or next of kin to be present when the person with a disability gives evidence.
(5) An investigation hearing notice—
(a) must be in the prescribed form (if any); and
(b) must contain the following information—
(i) a statement that failure to comply with the notice without reasonable excuse is an offence, and stating the maximum penalty for that offence;
(ii) examples of what may constitute a reasonable excuse for failing to comply with the notice;
(iii) any other prescribed information.
(1) A person who is served with an investigation hearing notice must not, without reasonable excuse, refuse or fail to comply with the notice.
Penalty: In the case of a natural person, 120 penalty units or 12 months imprisonment or both;
In the case of a body corporate, 600 penalty units.
(2) For the purpose of subsection (1), it is a reasonable excuse if the person is acting under an agreement under section 132P(2).
(1) A person on whom an investigation hearing notice is served may make a claim at the accountability investigation hearing—
(a) that the person has or will have a reasonable excuse for failing to comply with the notice; or
(b) that a document or thing specified in the notice is not relevant to the subject matter of the investigation hearing.
(2) If the Commissioner is satisfied that the person's claim is made out, the Commissioner, by further written notice served on the person, may vary or revoke the investigation hearing notice.
(3) The Commissioner, by further written notice served on a person, may, at any time on the Commissioner's own initiative, vary or revoke an investigation hearing notice served on the person.
(1) In an accountability investigation hearing the Commissioner may require a person attending the hearing, whether under an investigation hearing notice or otherwise, to give evidence or answer questions on oath or affirmation.
(2) The Commissioner, or a member of the staff of the Commissioner who is authorised to do so, may administer an oath or affirmation to a person for the purpose of subsection (1).
(1) The Commissioner may—
(a) inspect any document or thing produced at an accountability investigation hearing; and
(b) retain the document or thing for so long as is reasonably necessary for the purposes of the investigation hearing to which the document or thing is relevant; and
(c) copy any document or thing produced to the investigation hearing that is relevant to the subject matter of the hearing.
(2) If the retention of a document or thing under subsection (1) ceases to be reasonably necessary for the purposes of the accountability investigation hearing, the Commissioner, at the request of any person who appears to be entitled to the document or thing, must cause the document or thing to be delivered to the person.
A person who is or was the Commissioner or a member of the staff of the Commissioner is not compellable to give evidence in a court in relation to an accountability investigation unless the court gives leave.
A person who gives information or evidence or produces a document or thing to an accountability investigation has the same protection and immunity as a witness in a proceeding in the Supreme Court.
A disclosure of information made to the Commissioner under or for the purposes of this Part in good faith—
(a) does not for any purpose constitute unprofessional conduct or a breach of professional ethics on the part of the person who made the disclosure; and
(b) does not make the person who made the disclosure subject to any liability in respect of the disclosure.
It is a reasonable excuse for a person to refuse or fail to answer questions or do any other thing that the person is required to do by or under this Division, or by or under a search warrant issued under this Division if the giving of the information or the doing of that other thing would tend to incriminate the person.
It is a reasonable excuse for a person to refuse or fail to answer questions or do any other thing that the person is required to do by or under this Division, or by or under a search warrant issued under this Division if the giving of the information or the doing of that other thing would be a breach of legal professional privilege or client legal privilege.
A person who makes an oral or written statement in an accountability investigation or to the Commissioner under or for the purposes of this Part which the person knows to be false or misleading in a material respect is guilty of an offence and liable to a penalty not exceeding 60 penalty units.
(1) A person must not, by threat or intimidation, persuade or attempt to persuade another person—
(a) not to make a complaint to the Commissioner or not to continue discussion with or any proceeding before the Commissioner; or
(b) not to provide information about allegations of abuse or neglect to the Commissioner; or
(c) not to provide any other information to the Commissioner for the purposes of this Part.
Penalty: 120 penalty units, in the case of a natural person;
600 penalty units, in the case of a body corporate.
(2) A person must not dismiss or refuse to employ another person or subject another person to any detriment, because the other person—
(a) intends to make a complaint, or has made a complaint, to the Commissioner; or
(b) intends to take part in, is taking part in, or has taken part in, discussions with or proceedings before the Commissioner; or
(c) intends to or provides information about allegations of abuse or neglect to the Commissioner; or
(d) intends to or provides any other information to the Commissioner for the purposes of this Part.
Penalty: 120 penalty units, in the case of a natural person;
600 penalty units, in the case of a body corporate.
The Commissioner may give information acquired in the course of administering Divisions 6, 6A, 6B, 6C or this Division, or conducting an inquiry under section 16(c), to any of the following persons if the information is relevant to the performance of a function by the Commissioner or that person—
(a) the Minister;
(b) the Secretary;
(c) the Ombudsman;
(d) IBAC;
(e) the Commissioner for Privacy and Data Protection;
(f) the Mental Health Complaints Commissioner;
(g) the Health Complaints Commissioner;
(h) the Public Advocate;
(i) a community visitor;
(j) the Commission for Children and Young People;
(k) Victoria Police;
(l) the State Coroner;
(m) any person prescribed by the regulations.
(1) A prescribed person must not disclose or make a record of any information gained by that person in the performance of functions or duties or the exercise of powers under this Act, except as authorised under subsection (2).
Penalty: 60 penalty units.
(2) For the purposes of subsection (1), a prescribed person is authorised to disclose or make a record of the information—
(a) if it is necessary to do so for the purposes of, or in connection with, the performance of a function or duty or the exercise of a power under this Act; or
(b) if the person or body to whom the information relates gives written consent to the disclosure or the making of the record; or
(c) if the information or record is disclosed to a court or tribunal in the course of criminal proceedings or on the order of the court or tribunal; or
(d) if the disclosure or the making of the record is for the purposes of obtaining legal advice; or
(e) if the disclosure or the making of the record is otherwise authorised by this Act.
(3) Without limiting subsection (1), a prescribed person must not disclose any information given to the prescribed person under a requirement under this Part (including information contained in a document required to be produced to the prescribed person) except as authorised under subsection (4).
Penalty: 60 penalty units.
(4) For the purposes of subsection (3), the prescribed person is authorised to disclose the information—
(a) if—
(i) the prescribed person has advised the person from whom the information was obtained of the proposal to disclose the information; and
(ii) the prescribed person has given that person a reasonable opportunity to consent to the disclosure; and
(iii) the person from whom the information was obtained has consented to the proposal to disclose that information; or
(b) if the information is disclosed to another prescribed person for the purpose of that person or the Commissioner exercising powers or performing functions under this or any other Act.
(5) In this section—
"prescribed person" means a person who is, or has been—
(a) the Commissioner; or
(b) a delegate of the Commissioner; or
(c) an employee in the office of the Commissioner; or
(d) a consultant engaged by the Commissioner.
In this Division—
"Commissioner" means the Disability Services Commissioner.
(1) As soon as possible after completing a systemic initiated investigation, the Commissioner must give the Minister and the Secretary a report of the investigation.
(2) After completing an individual initiated investigation, the Commissioner may give the Minister or the Secretary a report of the investigation.
(3) After completing a referral investigation, the Commissioner must give the Minister and the Secretary a report in writing of the investigation.
If a report to the Minister or Secretary under section 132ZE makes an adverse comment on or gives an adverse opinion of an individual or a service provider, at least 14 days before giving the report the Commissioner must—
(a) give a copy of the relevant part of the report to the individual or service provider; and
(b) give the individual or service provider a reasonable opportunity to comment on the adverse comment or opinion.
(1) Subject to subsection (2), the Commissioner may give a copy of a report under section 132ZE(1) to the clerk of each House of the Parliament—
(a) no less than 14 days after giving the report to the Minister and Secretary under section 132ZE; and
(b) if section 132ZF has been complied with.
(2) The Commissioner must not give a copy of a report to the clerk of each House of the Parliament under subsection (1) if the report identifies or names an individual, or contains information which enables an individual to be identified.
(3) The clerk of each House of the Parliament must cause the report to be laid before the House on—
(a) the day on which it is received; or
(b) the next sitting day of the House.
(4) If the Commissioner proposes to give the report to Parliament when neither House of the Parliament is sitting, the Commissioner must—
(a) give one business day's notice of the Commissioner's intention to do so to the clerk of each House of the Parliament; and
(b) give the copy of the report to the clerk of each House of the Parliament on the day indicated in the notice; and
(c) cause the report to be published by the Government Printer.
(5) The clerk of a House of the Parliament must notify each member of the House of the receipt of a notice under subsection (4)(a) as soon as practicable after the clerk receives the notice.
(6) On receiving a copy of the report under subsection (4)(b), the clerk of the House of the Parliament must—
(a) as soon as practicable after the report is received, notify each member of the House of the receipt of the report and advise that the report is available on request; and
(b) give a copy of the report to any member of the House on request; and
(c) cause the copy of the report to be laid before the House on the next sitting day of the House.
(7) A copy of a report that is given to the clerk of a House of the Parliament under subsection (1) or (4)(b) is taken to have been published by order, or under the authority, of that House.
The Commissioner may liaise with other investigative authorities, official bodies and statutory officers—
(a) to avoid unnecessary duplication of inquiries or investigations; and
(b) to facilitate the coordination and expedition of inquiries or investigations that are to be separately conducted by different authorities, bodies or officers.".