Western Australia
Disability Services Act 1993
Reprinted as at 26 May 2000
Reprinted under the Reprints Act 1984 as at 26 May 2000
Disability Services Act 1993
CONTENTS
Part 1 — Preliminary
1.Short title2
2.Commencement2
3.Interpretation2
4.Legal proceedings to enforce provision of a service4
5.Crown bound4
Part 2 — Disability Services Commission
Division 1 — Establishment and personnel
6.Commission a body corporate5
7.Board of the Commission5
8.Chief executive officer6
9.Other personnel6
10.Use of other government staff and facilities7
11.Superannuation and leave entitlements7
Division 2 — Functions
12.Functions of the Commission7
12A.Contracts to provide goods or services to the Commission9
13.Power to fix fees and charges9
14.Delegation10
Division 3 — Financial provisions
15.Funds of the Commission10
16.Borrowing from Treasurer11
17.Borrowing generally11
18.Treasurer’s guarantee11
19.Application of Financial Administration and Audit Act 198512
Division 4 — Relationship with the Minister
20.Minister may give directions12
21.Minister to have access to information13
21A.Notification of general policies of the Government14
21B.Minister to be consulted on major initiatives14
Part 3 — Ministerial Advisory Council for Disability Services
22.Council to be constituted15
23.Council’s functions15
Part 4 — Financial assistance for matters relating to people with disabilities
24.Grants of financial assistance17
25.Grant to be subject of agreement18
26.Minister may review Commission’s decisions19
Part 4A — Contracts to provide services for people with disabilities
26A.Interpretation20
26B.Method of contracting to provide services for people with disabilities20
26C.Assignment of benefit of contract21
Part 5 — Disability service plans by public authorities
27.Application of Part22
28.Disability service plans to be prepared and implemented22
29.Report about disability service plan22
Part 6 — Complaints about services provided to people with disabilities
Division 1 — Preliminary
30.Interpretation24
31.Parties themselves may resolve complaint24
Division 2 — Complaints and conciliation
32.Who may complain25
33.Who and what can be complained about26
33A.Health services complaints27
34.Time for complaining27
35.How to complain27
36.Withdrawal of complaint28
37.Preliminary decision by Director28
38.Rejection, deferral or referral of complaints30
39.Conciliation of complaints30
Division 3 — Investigations
40.Investigation of complaints and referred matters31
41.Director’s powers on investigation32
Division 4 — Consequences of investigation
42.Director to decide, give reasons etc.34
43.Respondent to report on remedial action35
44.Report to Parliament where report not made or remedial action not taken35
Division 5 — General
45.Proceedings to stop if court action etc.36
46.Minister may refer matters for investigation36
47.Person not to be penalised because of complaining37
48.Registers of complaints37
49.Delegation38
50.Confidentiality38
Part 7 — Miscellaneous
51.Protection39
52.Confidentiality39
53.Offence of ill‑treatment41
54.Prosecution of offences41
55.Parliamentary Commissioner may conduct investigation41
56.Regulations41
57.Review of Act41
58.Repeal, transitional provisions and consequential amendments42
Schedule 1 — Principles applicable to people with disabilities
Schedule 2 — Objectives for services and programmes relating to people with disabilities
Schedule 3 — Provisions applicable to the Board of the Commission
1.Tenure of office46
2.Chairperson47
3.Meetings47
4.Remuneration47
Schedule 4 — Provisions applicable to the Commission's personnel
1.Superannuation48
2.Saving of leave entitlements48
Schedule 5 — Provisiions applicable to the Advisory Council for Disability Services
1.Tenure of office49
2.Chairperson49
3.Meetings50
4.Remuneration50
Notes
Defined Terms
Reprinted under the Reprints Act 1984 as at 26 May 2000
Western Australia
Disability Services Act 1993
An Act for the establishment of the Disability Services Commission and the Ministerial Advisory Council for Disability Services, for the furtherance of principles applicable to people with disabilities, for the funding and provision of services to such people that meet certain objectives, for the resolution of complaints by such people, and for related purposes.
[Long Title amended by No. 44 of 1999 s.4.]
Part 1 — Preliminary
This Act may be cited as the Disability Services Act 1993 1.
This Act comes into operation 7 days after the day on which it receives the Royal Assent 1.
In this Act, unless the contrary intention appears —
“Account” means the account referred to in section 15(2);
“Board” means the board of the Commission provided for by section 7;
“chief executive officer” means the chief executive officer of the Commission;
“Commission” means the Disability Services Commission referred to in section 6;
“Council” means the Ministerial Advisory Council for Disability Services referred to in section 22;
“Director” means the person appointed under section 7(1) of the Health Services (Conciliation and Review) Act 1995;
“disability” means a disability —
(a)which is attributable to an intellectual, psychiatric, cognitive, neurological, sensory, or physical impairment or a combination of those impairments;
(b)which is permanent or likely to be permanent;
(c)which may or may not be of a chronic or episodic nature; and
(d)which results in —
(i)a substantially reduced capacity of the person for communication, social interaction, learning or mobility; and
(ii)a need for continuing support services;
“personnel” means the chief executive officer and people appointed or employed under section 9;
“public authority” means —
(a)a department of the Public Service or an organisation specified in column 2 of Schedule 2 of the Public Sector Management Act 1994;
(b)another authority or body (whether incorporated or not) that is established for a public purpose by the State, regardless of the way it is established; or
(c)a person declared by regulation to be a public authority;
“service developer” means a person who or which —
(a)investigates the need for services for people with disabilities;
(b)researches the provision of services to people with disabilities;
(c)plans for the provision of services to people with disabilities;
(d)develops proposals for the provision of services to people with disabilities;
(e)initiates the provision of services to people with disabilities;
(f)develops or implements training programmes for people who provide services to people with disabilities;
(g)researches the effects of providing services to people with disabilities; or
(h)does any prescribed activity;
“service provider” means an individual or group of individuals or a body corporate or incorporate that renders or provides services to people with disabilities, but does not include a person as defined in section 24(1)(a).
[Section 3 amended by No. 32 of 1994 s.19; No. 44 of 1999 s.5.]
4.Legal proceedings to enforce provision of a service
(1)This Act is not to be taken as providing a person with a disability, or any other person, with any greater entitlement to legally enforce the provision of a service than he or she would have had if this Act had not been enacted.
(2)Subsection (1) does not limit the services that may be provided under this Act.
This Act binds the Crown.
Part 2 — Disability Services Commission
Division 1 — Establishment and personnel
(1)The body corporate established under the Authority for Intellectually Handicapped Persons Act 1985 (repealed in Schedule 6) and called the Authority for Intellectually Handicapped Persons is continued as a body corporate under this Act and is called the Disability Services Commission.
(2)The Commission is a body corporate with perpetual succession and a common seal.
(3)Proceedings may be taken by or against the Commission in its corporate name.
(4)The Commission is an agent of the Crown in right of the State and enjoys the status, immunities and privileges of the Crown.
(1)The Commission is to have a board as its governing body and the Board, in the name of the Commission, is to perform the Commission’s functions under this Act or any other written law.
(2)The Board is to comprise 9 members appointed by the Minister —
(a)one of whom is to be the person appointed under Schedule 5 as the chairperson of the Council;
(b)at least 5 of whom are to have —
(i)a disability;
(ii)a relative with a disability;
(iii)recent experience in caring for a person with a disability; or
(iv)recent experience as an advocate for people with disabilities;
(c)at least 2 of whom are to have a disability; and
(d)at least one of whom is to have a relative with a disability.
(3)In appointing members the Minister is to ensure that appointed to the Board are —
(a)people who have expertise relevant to the functions of the Commission and its operations, including expertise in management, finance, law, marketing, and the provision of services in the public and private sectors; and
(b)people who have knowledge of, and experience in, matters relevant to people with disabilities.
(4)Schedule 3 has effect.
(1)A chief executive officer of the Commission is to be appointed under and subject to Part 3 of the Public Sector Management Act 1994.
(2)The function of the chief executive officer is, subject to the control of the Board, to administer the day to day operations of the Commission.
[Section 8 amended by No. 32 of 1994 s.19.]
(1)Other officers who are necessary to enable the Commission to perform its functions may be appointed under and subject to Part 3 of the Public Sector Management Act 1994.
(2)The Commission may employ people otherwise than under Part 3 of the Public Sector Management Act 1994, and such people are to be employed subject to any relevant industrial award or agreement.
[Section 9 amended by No. 32 of 1994 s.19; No. 44 of 1999 s.6.]
10.Use of other government staff
(1)The Commission may by arrangement make use, either full-time or part‑time, of —
(a)the services of any officer or employee in the Public Service or in a State agency or instrumentality or otherwise in the service of the Crown in right of the State; or
(b)any facilities of a department of the Public Service or of a State agency or instrumentality.
(2)An arrangement under subsection (1) is to be made between the Commission and the Minister concerned and on such terms as they and the relevant employing authority agree.
[Section 10 amended by No. 32 of 1994 s.19.]
11.Superannuation
Schedule 4 has effect.
Division 2 — Functions
12.Functions of the Commission
(1)The functions of the Commission are —
(a)to establish local and other bodies representative of people with disabilities, their families, guardians and other interested people to advise the Commission on such matters as it specifies;
(b)to develop policies for the provision of services to people with disabilities;
(c)to make grants under Part 4 and to ensure that the use of grants is accounted for to the Commission;
(d)to provide and to encourage and facilitate the provision of services specifically for people with disabilities;
(e)to encourage people who provide services to the general public to adapt those services to meet the needs of people with disabilities;
(f)to inform people with disabilities about services available to them specifically, and about services available to the general public which meet the needs of people with disabilities, and to promote the use by them of such services;
(g)to inform the general public, or any section of it, about people with disabilities and to promote the acceptance by the general public, or any section of it, of the principles in Schedule 1;
(h)to advise public authorities in relation to the preparation of disability service plans under Part 5 and to evaluate the effectiveness of such plans;
(i)to establish guidelines and standards for the provision of services to people with disabilities;
(j)to investigate and make submissions about the effect of written laws on people with disabilities;
(k)to undertake and encourage research relating to any of its functions; and
(l)to cooperate and act jointly with people or bodies so far as is necessary for the performance of its functions.
(2)Subject to section 12A and Part 4A, the Commission may do all things that are necessary or convenient to be done for, or in connection with, its functions.
(3)In performing its functions the Commission is to further —
(a)the principles in Schedule 1; and
(b)the services and programmes provided meeting the objectives in Schedule 2.
[Section 12 amended by No. 44 of 1999 s.7.]
12A.Contracts to provide goods or services to the Commission
(1)Subject to the State Supply Commission Act 1991 and subsection (2), the Commission may —
(a)engage a person under a contract for services to provide such professional, technical, or other assistance; or
(b)enter into a contract for the supply of such goods or services,
to the Commission as it considers necessary to enable it to perform its functions.
(2)Except with the approval of the Minister, the Commission is not to enter into a contract under subsection (1) if the amount to be paid under the contract exceeds an amount specified in a written direction given to the Commission by the Minister under section 20(1).
[Section 12A inserted by No. 44 of 1999 s.8.]
13.Power to fix fees
(1)The Commission may, with the approval of the Minister —
(a)fix the fees and charges to be paid to the Commission for using or residing in premises owned by or under the control or management of the Commission;
(b)fix the fees and charges to be paid to the Commission for services provided by the Commission;
(c)determine the people or classes of people who are liable to pay the fees or charges so fixed in full or in part, or who may be exempted from such payment.
(2)Details of the fees and charges fixed and of any determination made must be tabled by the Minister before each House of Parliament within 6 sitting days of such House next following the Minister’s approval.
The Commission may in writing delegate to its personnel or a person referred to in section 10, any of its functions except this power of delegation.
Division 3 — Financial provisions
(1)The funds of the Commission consist of —
(a)moneys from time to time appropriated by Parliament;
(b)moneys received by the Commission in the performance of its functions;
(c)moneys borrowed by the Commission under this Act; and
(d)other moneys lawfully received by, or made available, given or payable to the Commission.
(2)The funds referred to in subsection (1) are to be credited to one account called the “Disability Services Commission Account” at either —
(a)the Treasury and forming part of the Trust Fund constituted under section 9 of the Financial Administration and Audit Act 1985; or
(b)a bank approved by the Treasurer.
(3)The Account is to be charged with —
(a)the remuneration and allowances payable to members of the Board;
(b)the salaries and wages of the Commission’s personnel;
(c)all expenditure lawfully incurred by the Commission in the performance of its functions; and
(d)repayment of, and interest on, moneys borrowed by the Commission under this Act.
(1)The Commission may borrow from the Treasurer such amounts as the Treasurer approves on such terms and conditions relating to repayment and payment of interest as the Treasurer imposes.
(2)The Account and other assets of the Commission are, by virtue of this subsection, charged with the due performance by the Commission of its obligations in respect of a loan under subsection (1).
(1)As well as being able to borrow under section 16, the Commission may —
(a)with the Treasurer’s prior written approval and on such terms and conditions as the Treasurer approves, borrow money for the purpose of performing its functions; and
(b)borrow moneys under this subsection on the guarantee of the Treasurer given under section 18.
(2)Any moneys borrowed by the Commission under subsection (1) may be raised as one or more loans and in such manner as the Treasurer approves, but the total amount of the moneys so borrowed is not to exceed such amount as the Treasurer has approved.
(1)The Treasurer may, in the name and on behalf of the Crown in right of the State, guarantee, in such form and subject to such terms and conditions as he or she determines, the payment of any moneys payable by the Commission in respect of moneys borrowed by it under section 17.
(2)Before a guarantee is given under subsection (1) the Commission is to give the Treasurer such security as the Treasurer requires and execute all such instruments as are necessary for the purpose.
(3)The due payment of moneys payable by the Treasurer under a guarantee given under subsection (1) —
(a)is hereby guaranteed by the State; and
(b)is to be charged to the Consolidated Fund, which to the extent necessary is appropriated accordingly.
(4)The Account and other assets of the Commission are, by virtue of this subsection, charged with the due repayment of any payment made by the Treasurer under a guarantee given under subsection (1) and with the performance and observance by the Commission of any terms and conditions which the Treasurer determines under that subsection in respect of that guarantee.
(5)Any moneys received or recovered from the Commission or otherwise in respect of a payment under a guarantee given under subsection (1) are to be credited to the Consolidated Fund.
(6)The Treasurer may fix charges to be paid by the Commission to the credit of the Consolidated Fund in respect of a guarantee given under this section.
(7)Payment of charges fixed under subsection (6) is to be made at such time or times as the Treasurer determines.
19.Application of Financial Administration and Audit Act 1985
The provisions of the Financial Administration and Audit Act 1985 regulating the financial administration, audit and reporting of statutory authorities apply to and in respect of the Commission and its operations.
Division 4 — Relationship with the Minister
20.Minister may give directions
(1)The Minister may give directions in writing to the Commission with respect to the performance of its functions, either generally or in relation to a particular matter, and the Commission must give effect to any such direction.
(2)The text of any direction given under subsection (1) is to be included in the annual report submitted by the accountable authority of the Commission under section 66 of the Financial Administration and Audit Act 1985.
21.Minister to have access to information
(1)For parliamentary purposes or for the proper conduct of the Minister’s public business, the Minister is entitled —
(a)to have information in the possession of the Commission; and
(b)where the information is in or on a document, to have, and make and retain copies of, that document.
(2)For the purposes of subsection (1) the Minister may —
(a)request the Commission to furnish information to the Minister;
(b)request the Commission to give the Minister access to information;
(c)for the purposes of paragraph (b) make use of the personnel and facilities of the Commission to obtain the information and furnish it to the Minister.
(3)The Commission must comply with a request under subsection (2) and make its personnel and facilities available to the Minister for the purposes of paragraph (c) of that subsection.
(4)The Minister is not entitled to have information under this section in a form that —
(a)discloses the identity of a person with a disability; or
(b)might enable the identity of any such person to be ascertained,
unless that person has consented to the disclosure.
(5)In this section —
“document” includes any tape, disc or other device or medium on which information is recorded or stored mechanically, photographically, electronically or otherwise;
“information” means information specified, or of a description specified, by the Minister that relates to the functions of the Commission;
“parliamentary purposes” means the purpose of —
(a)answering a question asked in a House of Parliament; or
(b)complying with a written law, or an order or resolution of a House of Parliament, that requires information to be furnished to a House of Parliament.
21A.Notification of general policies of the Government
(1)The Minister may notify the Commission in writing of general policies of the Government that are to be implemented by the Commission.
(2)The Commission must ensure that the policies are implemented.
(3)The Minister may, in writing, exempt the Commission from subsection (2) in relation to specified activities.
[Section 21A inserted by No. 44 of 1999 s.9.]
21B.Minister to be consulted on major initiatives
The Commission must consult the Minister before it enters upon a course of action that in its opinion —
(a)amounts to a major initiative; or
(b)is likely to be of significant public interest or of significant interest to people with disabilities, service developers, or service providers.
[Section 21B inserted by No. 44 of 1999 s.9.]
Part 3 — Ministerial Advisory Council for Disability Services
[Heading inserted by No. 44 of 1999 s.10.]
(1)The Advisory Council for Disability Services established under the Disability Services Act 1992 (repealed in Schedule 6) is continued under and subject to this Act.
(2)The Council is to comprise not more than 14 members, appointed by the Minister, who have disabilities, or who have knowledge of, and experience in, matters relevant to people with disabilities and who have been chosen so as to reflect the interests of the entire spectrum of disabilities.
(3)Schedule 5 has effect.
(1)The functions of the Council are —
(a)to advise the Minister, or such other person as the Minister directs, on the development and implementation of policies, services, programmes and activities that —
(i)affect people with disabilities;
(ii)inform the general public, or any section of it, about people with disabilities and that promote the acceptance by the general public, or any section of it, of the principles in Schedule 1;
(b)to recommend to the Minister, or such other person as the Minister directs, ways to improve the standards of services for people with disabilities; and
(c)as directed by the Minister from time to time, provided that all such directions by the Minister are tabled in each House of Parliament on the first possible date after their issue.
(2)The Council may do all things that are necessary or convenient to be done for, or in connection with, its functions.
(3)Without limiting the generality of subsection (2), the Council may request any public authority to provide it with information for the purpose of performing its functions and any such request must be complied with.
Part 4 — Financial assistance for matters relating to people with disabilities
24.Grants of financial assistance
(1)The Commission may approve a grant of financial assistance, from moneys standing to the credit of the Account, to —
(a)a person with a disability, or to an individual who resides with such a person and —
(i)who is related (by blood or marriage) to or is the guardian of such a person; and
(ii)who looks after or otherwise provides services to such a person;
(b)a service provider; or
(c)a service developer.
(2)A grant of financial assistance must not be approved under subsection (1) unless the Commission is satisfied —
(a)that the grant will further the principles in Schedule 1; and
(b)that any service or programme funded by the grant meets the objectives in Schedule 2.
(3)A grant of financial assistance may be made to a public authority.
(4)A grant of financial assistance may be paid in a lump sum or in periodic payments.
(5)Notwithstanding subsection (1), the Commission may, until 31 December 1995, approve a grant of financial assistance if satisfied the recipient will take steps before that date to ensure the principles in Schedule 1 are furthered and the objectives in Schedule 2 are met.
[Section 24 amended by No. 49 of 1996 s.64.]
25.Grant to be subject of agreement
(1)A person is not to be paid funds under a grant of financial assistance until the person has entered into an agreement in writing with the Commission setting out the terms and conditions of the grant.
(2)If a grant of financial assistance to an unincorporated association or body of people is approved, the agreement referred to in subsection (1) is to be entered into by an individual or individuals on its behalf.
(3)Subsection (1) does not apply in respect of a grant made to a public authority that is not a body corporate.
(4)Without limiting the terms and conditions that may be included in an agreement referred to in subsection (1), unless the Board considers that it is inappropriate for an agreement to do so, such an agreement is to require the recipient of a grant under section 24(1)(b) or (c) to report to the Commission —
(a)the death of any person with a disability;
(b)significant physical or psychological harm suffered by a person with a disability;
(c)without limiting paragraph (b), an assault (including a sexual assault) of a person with a disability; or
(d)neglect of a person with a disability to an extent that results, or is likely to result, in significant physical or psychological harm to that person.
(5)In subsection (4), a reference to a person with a disability is a reference to —
(a)a person with a disability to whom the recipient of a grant is providing a disability service; or
(b)a person with a disability who is the subject of the agreement.
(6)If under subsection (4) the Board decides that it is inappropriate for an agreement to require a recipient of a grant to report to the Commission, the Board is to report to the Minister that it has made that decision.
[Section 25 amended by No. 44 of 1999 s.11.]
26.Minister may review Commission’s decisions
(1)A service provider which is affected directly by a decision by the Commission under this Part may, in writing, request the Minister to review the decision.
(2)The Minister has an absolute discretion to review a decision by the Commission under this Part, whether on a request under subsection (1) or otherwise.
(3)The Minister is to provide a service provider which has requested a review under this section with —
(a)written reasons for refusing to conduct a review; or
(b)written conclusions reached after conducting a review.
(4)After reviewing a decision by the Commission under this Part the Minister may give the Commission a direction under section 20.
Part 4A — Contracts to provide services for people with disabilities
[Heading inserted by No. 44 of 1999 s.12.]
In this Part, unless the contrary intention appears —
“commencement day” means the day on which the Disability Services Amendment Act 1999 comes into operation 1;
“supply policies” has the same definition as it has in section 3(1) of the State Supply Commission Act 1991.
[Section 26A inserted by No. 44 of 1999 s.12.]
26B.Method of contracting to provide services for people with disabilities
(1)If the Commission wishes to contract with a service provider to provide, on behalf of the Commission, services to a person with a disability, or to an individual who resides with such a person and —
(a)who is related (by blood or marriage) to or is the guardian of the person with a disability; and
(b)who looks after or otherwise provides services to the person with a disability,
the Commission is to apply to the Minister for approval of the means of procuring the services.
(2)If approval is sought under subsection (1), the Minister may direct —
(a)that the services be procured by means of a tender conducted in accordance with supply policies relating to tenders;
(b)that the Commission by public notice invite expressions of interest from service providers for the provision of the services; or
(c)that the Commission enter into negotiations with a service provider for the provision of the services.
(3)The Commission may renew a contract, including a contract by way of renewal under this subsection —
(a)for the type of service referred to in subsection (1) entered into before the commencement day; or
(b)entered into under this section,
without complying with this section.
[Section 26B inserted by No. 44 of 1999 s.12.]
26C.Assignment of benefit of contract
(1)A person who after the commencement day has entered into a contract with the Commission for the provision of a service referred to in section 26B(1) may not assign the benefit of that contract without the consent of the Commission.
(2)When the benefit of a contract is assigned, the assignee is bound, by force of this subsection, to perform the obligations which the assignor was bound under the contract to perform.
(3)Any purported assignment in contravention of this section is void.
[Section 26C inserted by No. 44 of 1999 s.12.]
Part 5 — Disability service plans by public authorities
(1)This Part applies to public authorities.
(2)Notwithstanding subsection (1), regulations may declare that this Part does not apply to a specified public authority.
28.Disability service plans to be prepared and implemented
(1)A public authority must have and implement a disability service plan to ensure that in so far as its functions involve dealings with the general public, the performance of those functions furthers the principles in Schedule 1.
(2)A public authority that does not have a disability service plan must create a plan without delay and, in the case of a public authority established after the commencement of the Disability Services Amendment Act 1999, within 12 months of the day on which the authority is established.
[(3)repealed]
(4)A public authority may amend its disability service plan at any time.
[Section 28 amended by No. 44 of 1999 s.13.]
29.Report about disability service plan
(1)A public authority that has a disability service plan must, if required to report under section 62 or 66 of the Financial Administration and Audit Act 1985, include in such report, a report about the implementation of the plan.
(2)A local government or regional local government that has a disability service plan must include in its annual report prepared under section 5.53 of the Local Government Act 1995 a report about the implementation of the plan.
(3)A public authority that —
(a)has prepared or amended a disability service plan in a year ending 30 June; and
(b)is not required to report under subsection (1) or (2),
must make a report about the implementation of the plan to the Commission within 2 months after the end of that year.
[Section 29 inserted by No. 44 of 1999 s.14.]
Part 6 — Complaints about services provided to people with disabilities
Division 1 — Preliminary
In this Part, unless the contrary intention appears —
“complaint” means a complaint under Division 2;
“disability service” means a service provided specifically to people with disabilities but does not include —
(a)such a service where it is provided wholly or partly from funds provided by the Health Department;
(aa)such a service where it is provided wholly from funds paid to the service provider by the Commonwealth of Australia; or
(b)such a service where it is prescribed by regulation;
“Health Department” means the department assisting the Minister administering the Health Act 1911;
“member of the staff” has the same definition as it has in section 3(1) of the Health Services (Conciliation and Review) Act 1995;
“respondent” means a person about whom or which a complaint is made.
[Section 30 amended by No. 44 of 1999 s.15.]
31.Parties themselves may resolve complaint
(1)Nothing in this Part prevents the complainant and the respondent resolving a complaint by agreement at any time, whether or not through conciliation provided for under this Part, but if that occurs the complainant must notify the Director of the fact without delay.
(2)When the Director becomes aware that a complaint has been resolved, he or she must stop dealing with it under this Part.
[Section 31 amended by No. 44 of 1999 s.22.]
Division 2 — Complaints and conciliation
(1)A complaint about a person referred to in section 33(1) alleging one or more of the matters set out in section 33(2) may be made to the Director —
(a)personally by a person with a disability;
(b)on behalf of a person with a disability, by a person who under subsection (2) is recognised as an advocate for the person; or
(c)by 2 or more persons —
(i)on their own behalf; or
(ii)on behalf of themselves and another person or other persons.
(2)The Director may recognise as an advocate for a person with a disability —
(a)a person chosen as such by the person with a disability; or
(b)a person not chosen by the person with a disability if, in the Director’s opinion —
(i)the person with a disability is unable personally to complain and is unable personally to choose a person to be his or her advocate; and
(ii)the prospective advocate is a person who has a sufficient interest in the subject matter of the complaint.
(3)A person who is related (by blood or marriage) to a person with a disability may be his or her advocate.
[Section 32 amended by No. 44 of 1999 ss.22 and 23.]
33.Who and what can be complained about
(1)A complaint may only be about —
(a)a service provider who or which, at the time the subject matter of the complaint arose, was providing a disability service, whether or not with funds granted under Part 4;
(b)a service provider which is a public authority, other than the Health Department, and which, at the time the subject matter of the complaint arose, was providing a disability service, whether or not with funds granted under Part 4; or
(c)the Commission.
(2)A complaint must allege that after the date on which this Act comes into operation, a service provider or the Commission —
(a)acted unreasonably by not providing a disability service to the complainant;
(b)acted unreasonably by providing a disability service to the complainant;
(c)acted unreasonably in the manner of providing a disability service to the complainant;
(d)acted unreasonably by denying or restricting the complainant’s access to records relating to the complainant kept by the service provider or the Commission;
(e)acted unreasonably in disclosing records or confidential information relating to the complainant,
or that the Commission acted unreasonably in making or not making a grant to the complainant under Part 4.
(3)A person must not make a statement in a complaint that the person knows is false or misleading in a material respect.
Penalty: $2 500.
[Section 33 amended by No. 44 of 1999 s.16.]
33A.Health services complaints
A complaint cannot be made under this Act about a matter if a complaint about that matter could be made under Part 3 of the Health Services (Conciliation and Review) Act 1995.
[Section 33A inserted by No. 75 of 1995 s.80(2).]
The Director must reject a complaint the subject matter of which occurred more than 24 months before the complaint is made unless, in the Director’s opinion, the complainant has shown good reason for the delay.
[Section 34 amended by No. 44 of 1999 ss.17, 22 and 23.]
(1)A person may complain to the Director orally, including by telephone, or in writing.
(2)If the Director receives an oral complaint the Director must require the complainant to confirm it in writing unless the complainant satisfies the Director that there is good reason why the complaint should not be confirmed in writing.
(3)The Director must require a complainant to give his or her name and may require the complainant to give other information relating to the complainant’s identity.
(4)The Director may require a complainant to give more information about the complaint within a time fixed by the Director.
(5)If a complainant does not comply with a requirement of the Director under subsection (2), (3) or (4), the Director may reject the complaint.
[Section 35 amended by No. 44 of 1999 s.22.]
A complainant may at any time withdraw the complaint by notifying the Director and the Director must then —
(a)stop dealing with or investigating the complaint;
(b)if details have been given under section 37(3), notify the respondent of the withdrawal; and
(c)if the complaint has been referred under section 38(4), notify the person to whom it has been referred.
[Section 36 amended by No. 44 of 1999 s.22.]
37.Preliminary decision by
(1)Within 28 days after receiving a complaint the Director must decide whether, and to what extent —
(a)to reject, defer, or refer it under section 38;
(b)to accept it and conciliate it under section 39,
but the Director may extend the 28 day period for a further period not exceeding 28 days if it is for the benefit of the complainant to do so.
(2)To enable the Director to make a decision under subsection (1) the Director may make such inquiries as the Director considers appropriate.
(3)Within 14 days after making a decision under subsection (1), the Director must —
(a)if the complaint is rejected — give to the complainant written details of the decision;
(b)if the complaint is deferred or referred —
(i)give to the complainant — written details of the decision; and
(ii)give to the respondent — written details of the complaint and of the decision;
or
(c)if the complaint is accepted —
(i)give to the complainant — written details of the decision and of the arrangements made for conciliation discussions between the complainant and the respondent; and
(ii)give to the respondent — written details of the complaint, of the decision, and of the arrangements made for conciliation discussions between the complainant and the respondent and a written statement that the respondent may make submissions to the Director.
(4)If the Director considers that on account of particular circumstances the disclosure of the complainant’s identity —
(a)may result in the health, safety or welfare of the complainant being put at risk; or
(b)would prejudice the proper investigation of the complaint,
the Director, in giving written details under subsection (3)(b) or (c), is not to disclose the identity of the complainant.
(5)Where the Director has acted under subsection (4), the Director must disclose the identity of the complainant to the respondent if the Director later becomes satisfied that the circumstances described under that subsection no longer apply.
[Section 37 amended by No. 44 of 1999 s.22.]
38.Rejection, deferral or referral of complaints
(1)The Director must reject a complaint that in the Director’s opinion —
(a)is vexatious, trivial or without substance;
(b)does not warrant any further action; or
(c)does not comply with this Part.
(2)If an issue raised in a complaint has already been dealt with under another written law or a law of the Commonwealth or by a court, the Director must reject the complaint to the extent to which it relates to that issue.
(3)If an issue raised in a complaint is being dealt with under another written law or a law of the Commonwealth or by a court, the Director must defer dealing with the complaint to the extent to which it relates to that issue.
(4)If a complaint raises issues that in the opinion of the Director would be better dealt with under another written law, the Director may, with the written consent of the complainant, refer the complaint to the appropriate person to be dealt with under that other written law, but the Director may not refer a complaint to a court.
[Section 38 amended by No. 44 of 1999 ss.22 and 23.]
(1)The Director is to conciliate complaints that are accepted, but if he or she delegates this duty, it must be to a person whose duties consist of or include the conciliation of complaints.
(2)The Director’s function as conciliator is to encourage the settlement of the complaint by —
(a)arranging for the complainant and the respondent to hold informal discussions about the complaint;
(b)helping in the conduct of those discussions;
(c)if possible, assisting the complainant and the respondent to reach agreement.
(3)During the conciliation process neither the complainant nor the respondent may be represented by another person, but —
(a)the complainant may be represented by his or her advocate recognised under section 32(2);
(b)if the Director is satisfied that the process will not work effectively otherwise, the Director may allow either party to be represented.
(4)Nothing in subsection (3) prevents the personal attendance of any other person who may, in the opinion of the Director, help in the conciliation.
(5)Evidence of anything said or admitted during the conciliation process is not admissible in proceedings before a court or tribunal.
[Section 39 amended by No. 44 of 1999 ss.22 and 23.]
Division 3 — Investigations
40.Investigation of complaints and referred matters
(1)If the conciliation process fails to result in the settlement of the complaint between the complainant and the respondent, the Director must investigate the complaint.
(2)The Director must investigate any matter referred to the Director for investigation by the Minister under section 46.
(3)The Director may at any time try to encourage the settlement of a complaint by means of conciliation.
(4)The purpose of an investigation is to enable the Director to decide whether or not any unreasonable conduct referred to in section 33(2) has occurred and in so deciding, the Director is to have regard to —
(a)the principles in Schedule 1 and the objectives in Schedule 2;
(b)any agreement entered into by the service provider under section 25, or contract entered into under section 26B or assigned to the service provider under section 26C;
(c)any disability service plan prepared under section 28;
(d)the generally accepted standard of service delivery expected of a service provider or the Commission, as the case may be; and
(e)such other standards of service for disability service users as are prescribed.
(5)In conducting an investigation the Director —
(a)must proceed with as little formality and technicality and as speedily as the requirements of this Part and proper investigation of the matter permits;
(b)is not bound by the rules of evidence but may inform himself or herself of any matter in such manner as he or she considers appropriate; and
(c)may, subject to this Part and the rules of natural justice, determine his or her own procedures.
(6)In conducting an investigation the Director may make use of a member of the staff.
[Section 40 amended by No. 44 of 1999 ss.18 and 22.]
41.Director’s powers on investigation
(1)In this section —
“relevant information” means information that is relevant to an investigation under section 40;
“relevant record” means a record of information, however compiled, recorded or stored, that is relevant to an investigation under section 40;
“the person’s representative” means —
(a)the person’s advocate recognised under section 32(2);
(b)a guardian of the person under the Guardianship and Administration Act 1990; or
(c)in the case of a minor, a parent or guardian of the minor.
(2)The Director may, by notice in writing given to a person, require the person —
(a)to furnish the Director with a statement signed by the person or, in the case of a body corporate, by an officer of the body corporate, containing such relevant information as is specified in the notice;
(b)to produce to the Director such relevant records as are specified in the notice.
(3)The Director is not to issue a notice under subsection (2) to a person unless the Director has reason to believe that the person is capable of furnishing the relevant information or producing the relevant records, as the case may be.
(4)A notice under subsection (2) is to specify the time and place for furnishing the relevant information or producing the relevant records, as the case may be.
(5)Where a relevant record is produced in accordance with a notice under this section, the Director may —
(a)take possession of and retain it for such reasonable period as is necessary for the purposes of the investigation;
(b)inspect it and make copies of it;
(c)during that period permit a person who would be entitled to inspect the record if it were not in the possession of the Director to inspect it.
(6)Nothing in this section prevents a person from —
(a)refusing to disclose relevant information or to produce a relevant record because it contains information in respect of which there is legal professional privilege;
(b)refusing to produce medical records except where —
(i)those medical records relate to the subject matter of the complaint; and
(ii)the person to whom the records relate, or the person’s representative, has consented to the disclosure of information in the records.
(7)A person who has been given a notice under this section must not, without reasonable excuse, proof of which is on the person, refuse or fail —
(a)to furnish relevant information; or
(b)to produce a relevant record.
Penalty:(a)in the case of an individual — $1 000;
(b)in the case of a body corporate — $5 000.
[Section 41 amended by No. 44 of 1999 s.22.]
Division 4 — Consequences of investigation
42.Director to decide, give reasons etc.
After an investigation the Director must decide whether or not any unreasonable conduct referred to in section 33(2) has occurred and, within 14 days after deciding, must give —
(a)in the case of a complaint — the complainant and the respondent; or
(b)in the case of a matter referred by the Minister under section 46 — the Minister and any person affected by the decision,
written notice of the decision which must —
(c)include the reasons for the decision; and
(d)if the Director has decided that unreasonable conduct has occurred, set out any action that the Director recommends ought to be taken to remedy the matter by —
(i)the respondent;
(ii)any other person.
[Section 42 amended by No. 44 of 1999 s.22.]
43.Respondent to report on remedial action
(1)If a decision under section 42 recommends remedial action be taken by the respondent, the respondent must, within 45 days after receiving the notice of the decision, report in writing to the Director what action the respondent has taken to remedy the matter.
Penalty: $2 500.
(2)Within the 45 day period referred to in subsection (1), the respondent may ask the Director to extend the time within which the respondent must report to the Director.
(3)If asked under subsection (2), the Director may extend the time by no more than 15 days.
[Section 43 amended by No. 44 of 1999 ss.19 and 22.]
44.Report to Parliament where report not made or remedial action not taken
(1)If a decision under section 42 recommends remedial action be taken by the respondent and the respondent does not report in accordance with section 43, the Director must give the Minister a copy of the decision and a written report about the refusal or failure by the respondent to so report.
(2)If a decision under section 42 recommends remedial action be taken by the respondent and the respondent does not take the remedial action recommended within such time as in the Director’s opinion is reasonable, the Director must give the Minister a copy of the decision and a written report about the refusal or failure by the respondent to take the remedial action.
(3)After receiving the decision and a report under subsection (1) or (2) the Minister may table both before each House of Parliament.
(4)The Director is not to include the complainant’s name in the material given to the Minister under subsection (1) or (2) unless authorised to do so by the complainant.
[Section 44 amended by No. 44 of 1999 ss.22 and 23.]
Division 5 — General
45.Proceedings to stop if court action etc.
(1)The Director must stop dealing with or investigating a complaint if the Director becomes aware that the complainant or the respondent has begun proceedings under another written law or a law of the Commonwealth or in a court, which relate to an issue raised by the complaint.
(2)If the Director stops dealing with a complaint under subsection (1), the Director must, within 14 days of doing so, give written notice of the fact to the complainant and the respondent.
(3)If the Director has stopped dealing with a complaint under subsection (1) and later becomes aware that the proceedings under another written law or a law of the Commonwealth or in a court have been discontinued or abandoned, the Director may, with the consent of the complainant, resume dealing with the complaint under this Part.
[Section 45 amended by No. 44 of 1999 s.22.]
46.Minister may refer matters for investigation
Where the Minister is of the opinion that circumstances exist in relation to a person with a disability that would justify a complaint being made under this Part, the Minister may refer the matter to the Director to be investigated under Division 3.
[Section 46 amended by No. 44 of 1999 s.22.]
47.Person not to be penalised because of complaining
A person must not —
(a)by threats or intimidation persuade or attempt to persuade another person —
(i)not to make a complaint or to withdraw such a complaint or not to continue proceedings under this Act in respect of such a complaint; or
(ii)not to provide information to or not to otherwise assist the Director in conducting an investigation under Division 3;
or
(b)refuse to employ, or dismiss, another person or subject another person to any detriment, because the other person intends to make a complaint, or has made a complaint, or intends to take part, is taking part, or has taken part, in proceedings under this Part in respect of a complaint or an investigation.
Penalty: $2 500.
[Section 47 amended by No. 44 of 1999 s.22.]
(1)The Director is to establish and maintain —
(a)a register of complaints; and
(b)a register of matters referred for investigation.
(2)The registers are to be established and maintained in such manner as is determined from time to time by the Director.
(3)The form and contents of the registers are to be determined from time to time by the Director.
[Section 48 amended by No. 44 of 1999 s.22.]
The Director may, by instrument in writing, either generally or as otherwise provided by the instrument, delegate to a member of the staff, the Director’s functions in this Part, other than —
(a)this power of delegation; and
(b)the duty in section 42 to decide if unreasonable conduct has occurred and the power to recommend remedial action.
[Section 49 amended by No. 44 of 1999 ss.20 and 22.]
Section 71 of the Health Services (Conciliation and Review) Act 1995, with such modifications as are necessary, applies to the Director and to a delegate under section 49 in respect of information or documents relating to the affairs of another person acquired by the Director or delegate under this Part.
[Section 50 amended by No. 44 of 1999 ss.21 and 22.]
Part 7 — Miscellaneous
(1)A member of the Board is not personally liable in civil proceedings for anything done or omitted to be done by the Commission, in good faith, in the exercise or purported exercise of its functions under this Act.
(2)A member of the Council is not personally liable for anything done or omitted to be done by the Council, in good faith, in the exercise or purported exercise of its functions under this Act.
(3)A person is not personally liable in civil proceedings for an act done or omission made, in good faith, in the performance or purported performance of a function under this Act.
(1)A person who is or has been in a situation to which this section applies must not, whether directly or indirectly, record, disclose, or make use of any information obtained because of that situation except —
(a)in the course of duty;
(b)as required or allowed by this Act or any other law;
(ba)in connection with the investigation of an offence to —
(i)a member of the Police Force of Western Australia or the Australian Federal Police;
(ii)the Director of Public Prosecutions for Western Australia or the Commonwealth; or
(iii)an officer of another law enforcement agency established under the law of a State or Territory or the Commonwealth authorised by regulation to receive confidential information under this paragraph;
(bb)where it is in the public interest to protect the physical safety of an individual;
(bc)for the purpose of enabling or facilitating the investigation by —
(i)the Director‑General; or
(ii)an officer of the Department,
of whether or not a child is a child in need of care and protection;
(bd)for the purpose of proceedings under the Child Welfare Act 1947 in relation to a child who may be a child in need of care and protection;
(c)for the purpose of proceedings before the Guardianship and Administration Board established under the Guardianship and Administration Act 1990;
(d)if the information is personal information — with the consent of the person, or the person’s guardian; or
(e)in prescribed circumstances.
Penalty: $2 500.
(2)The situations to which this section applies are —
(a)being a member of the Board;
(b)being a member of the personnel of the Commission;
(c)being a person whose services are made use of under section 10, 12A or Part 4A.
(3)In subsection (1)(bc) or (1)(bd), “child”, “child in need of care and protection”, “Department”, and “Director‑General” have the definition that those words and expressions have, respectively, in section 4(1) of the Child Welfare Act 1947.
[Section 52 amended by No. 44 of 1999 s.24.]
A person who ill‑treats or wilfully neglects a person with a disability while that person is under his or her care, supervision or authority commits an offence.
Penalty: $4 000 or imprisonment for 12 months.
(1)A complaint under the Justices Act 1902 for an offence against this Act may be made or sworn by the chief executive officer or a person authorised in writing to do so by the chief executive officer.
(2)In any proceedings for an offence against this Act the authority of the complainant to make or swear the complaint is to be presumed in the absence of evidence to the contrary.
55.Parliamentary Commissioner may conduct investigation
For the purposes of section 14(4) of the Parliamentary Commissioner Act 1971 the right to make a complaint under Part 6 is not to be regarded as a right of appeal, reference or review to or before a tribunal.
The Governor may make regulations prescribing all matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out this Act.
(1)The Minister is to carry out a review of the operation and effectiveness of this Act —
(a)not later than 5 years after its commencement; and
(b)not later than 5 years after the tabling of the report on that review and after the tabling of each subsequent report on a review.
(2)For the purposes of conducting a review under subsection (1) the Minister may request the Director to provide a report about the nature of complaints made under Part 6.
(3)If so requested, the Director is to provide a report but is not to include in it the name of any complainant.
(4)In the course of a review under subsection (1) the Minister is to consider and have regard to —
(a)the effectiveness of the operations of the Commission and the need for its continuation;
(b)the effectiveness of the Council and its functions and the need for its continuation;
(c)the effectiveness of grants under Part 4 in furthering the principles in Schedule 1;
(d)the effectiveness of Part 6;
(e)any report by the Director provided under subsection (3); and
(f)such other matters as appear to the Minister to be relevant to the operation and effectiveness of this Act.
(5)The Minister must prepare a report based on each review and shall, as soon as practicable after it is prepared, cause it to be tabled before each House of Parliament.
[Section 57 amended by No. 44 of 1999 s.22.]
58.Repeal, transitional provisions and consequential amendments
[Omitted under the Reprints Act 1984 s.7(4)(f).]
