Queensland Numbered Acts Queensland Numbered ActsPart 9 —
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345 Definitions for division In this division—
"amended Act" means this Act as amended by the amending Act.
"amending Act" means the Disability Services and Other Legislation (NDIS) Amendment Act 2019 .
"former" , in relation to a provision, means as in force immediately before the provision was amended or repealed under the amending Act.
"new disqualified person" means a person who is a disqualified person only because the person has been convicted or is convicted of a new disqualifying offence.
"new disqualifying offence" means an offence that is a disqualifying offence under the amended Act but was not a disqualifying offence under this Act immediately before the commencement.
"new relevant disqualified person" means a person who is a relevant disqualified person only because the person has been or is convicted of a new disqualifying offence for which an imprisonment order was or is imposed.
"new serious offence" means an offence that is a serious offence under the amended Act but was not a serious offence under this Act immediately before the commencement.
345A Effect of pre-commencement charge for serious offence(1) This section applies if a person is the subject of a charge for a serious offence that has not been dealt with on the commencement.(2) For applying the amended Act in relation to the person, the person is taken to have been charged with the offence on the commencement.
345B Effect of conviction or charge for new serious offence(1) For applying the amended Act in relation to a person convicted of a new serious offence, it is immaterial—(a) when the offence was committed; or(b) when the person was convicted of the offence.(2) The amended Act applies in relation to a person who is charged with a new serious offence, even if—(a) the person was charged before the commencement; or(b) the acts or omissions constituting the offence happened before the commencement.
346 Effect of conviction or charge for new disqualifying offence(1) For applying section 97(1)(a) and schedule 8, definition
"relevant disqualified person" , paragraph (a) in relation to a person who has been or is convicted of a new disqualifying offence, it is immaterial when the offence was committed or the person was convicted.(2) Without limiting this division, in applying the amended Act from the commencement, it is immaterial—(a) when a new disqualifying offence was committed; or(b) when a person was convicted of a new disqualifying offence; or(c) when a charge for a new disqualifying offence, or the acts or omissions constituting the alleged offence, happened.Example—An offence may have been committed, and the person convicted of the offence, before the commencement.(3) For applying the amended Act to a current positive notice held by a person immediately before the commencement, a person the subject of a charge for a new disqualifying offence that has not been dealt with on the commencement is taken to have been charged with the offence on the commencement.
346A Effect of conviction for new disqualifying offence on existing positive notice or positive exemption notice(1) This section applies if—(a) a person held a current positive notice or positive exemption notice immediately before the commencement; and(b) the person was convicted of a new disqualifying offence before the commencement.(2) For applying the amended Act to the person’s positive notice or positive exemption notice, the offence is taken to be, or to continue to be, a serious offence despite the enactment of the amending Act.(3) Without limiting subsection (2), if the person applies for another positive exemption notice after the commencement, or section 347, 348 or 349 applies in relation to the person—(a) the person’s conviction for the offence is taken to be, or to continue to be, a conviction for a serious offence; and(b) the person is taken not to be a disqualified person or relevant disqualified person in relation to the person’s conviction for the offence.
347 Particular existing prescribed notice applications and exemption notice applications(1) This section applies if—(a) before the commencement, a prescribed notice application or exemption notice application had been made about a person; and(b) immediately before the commencement, the application had not been decided or withdrawn; and(c) on the commencement—(i) the person is a new disqualified person; or(ii) the person is the subject of a charge for a new disqualifying offence that has not been dealt with.(2) The prescribed notice application or exemption notice application is taken to be withdrawn.(3) The chief executive must give notice of the withdrawal to—(a) the person; and(b) the funded non-government service provider, or NDIS non-government service provider, that made the application.
348 Existing positive notice held by person convicted of new serious offence or new disqualifying offence(1) This section applies if—(a) immediately before the commencement, a person held a current positive notice; and(b) before the commencement, the person was convicted of—(i) a new serious offence; or(ii) a new disqualifying offence that is taken to be a serious offence under section 346A(2).(1A) Section 74 does not apply to the person in relation to the person’s conviction for the offence.(1B) The chief executive must—(a) consider whether it is appropriate to cancel the person’s positive notice under this section because of the person’s conviction for the offence; and(b) give the person a notice stating that, because of the enactment of the amending Act, the chief executive is considering under this section whether the person should continue to hold the person’s positive notice.(1C) If the person is engaged by a funded non-government service provider or an NDIS non-government service provider and is not a sole trader, the chief executive must give the service provider a notice mentioned in subsection (1B)(b).(2) The chief executive may cancel the positive notice and substitute a negative notice if satisfied that, if the chief executive were to decide a prescribed notice application about the person under the amended Act, the chief executive would issue a negative notice to the person.Note—See also section 85 for when the chief executive must cancel a positive notice held by a person who becomes a relevant disqualified person.(3) Section 83(2), (3), (5) and (6) apply to the decision under subsection (2) as if a reference in section 83 to making a decision, or proposing to substitute a negative notice, were a reference to making a decision, or proposing to substitute a negative notice, under subsection (2).(4) If the chief executive decides not to cancel the person’s positive notice under this section, the chief executive must give the persons mentioned in subsection (5) a notice stating that the chief executive is satisfied, having considered the enactment of the amending Act, the person should continue to hold the person’s positive notice.(5) For subsection (4), the persons to whom the notice must be given are—(a) the person; and(b) each service provider given a notice under subsection (1B).
349 Existing positive exemption notice held by person convicted of new serious offence or new disqualifying offence(1) This section applies if—(a) immediately before the commencement, a person held a current positive exemption notice; and(b) before the commencement, the person was convicted of—(i) a new serious offence; or(ii) a new disqualifying offence that is taken to be a serious offence under section 346A(2).(1A) Section 74 does not apply to the person in relation to the person’s conviction for the offence.(1B) The chief executive must—(a) consider whether it is appropriate to cancel the person’s positive exemption notice under this section because of the person’s conviction for the offence; and(b) give the person a notice stating that, because of the enactment of the amending Act, the chief executive is considering under this section whether the person should continue to hold the person’s positive exemption notice.(1C) If the person is engaged by a funded non-government service provider or an NDIS non-government service provider and is not a sole trader, the chief executive must give the service provider a notice mentioned in subsection (1B)(b).(2) The chief executive may cancel the positive exemption notice and substitute a negative exemption notice if satisfied that, if the chief executive were to decide an exemption notice application about the person under the amended Act, the chief executive would issue a negative exemption notice to the person.Note—See also section 64(2) for the currency of a positive exemption notice.(3) Section 84(2), (3), (5) and (6) apply to the decision under subsection (2) as if a reference in section 84 to making a decision, or proposing to substitute a negative exemption notice, were a reference to making a decision, or proposing to substitute a negative exemption notice, under subsection (2).(4) If the chief executive decides not to cancel the person’s positive exemption notice under this section, the chief executive must give the persons mentioned in subsection (5) a notice stating that the chief executive is satisfied, having considered the enactment of the amending Act, the person should continue to hold the person’s positive exemption notice.(5) For subsection (4), the persons to whom the notice must be given are—(a) the person; and(b) each service provider given a notice under subsection (1B).
350 Existing applications to cancel negative notices or negative exemption notices(1) This section applies if—(a) before the commencement, a person had applied to the chief executive under section 82 to cancel the person’s negative notice or negative exemption notice; and(b) immediately before the commencement, the application had not been decided.(2) If, on the commencement, the person is a new relevant disqualified person—(a) the application is taken to be withdrawn; and(b) the chief executive must give the person notice of the withdrawal.(3) If, on the commencement, the person is not a new relevant disqualified person, the chief executive must decide the application under the amended Act.
351 Particular existing applications to end suspension of positive notices(1) This section applies if—(a) before the commencement, a person had applied to the chief executive under section 87 to cancel the person’s suspended positive notice; and(b) immediately before the commencement, the application had not been decided; and(c) on the commencement, the person is not a new relevant disqualified person.(2) The chief executive must decide the application under the amended Act.Note—See also section 85 for when the chief executive must cancel a positive notice held by a person who becomes a relevant disqualified person.
352 Particular existing applications to end suspension of positive exemption notices(1) This section applies if—(a) before the commencement, a person had applied to the chief executive under section 89 to cancel the person’s suspended positive exemption notice; and(b) immediately before the commencement, the application had not been decided; and(c) on the commencement, the person is not a new relevant disqualified person.(2) The chief executive must decide the application under the amended Act.Note—See also section 64(2) for the currency of a positive exemption notice.
353 Existing eligibility applications(1) This section applies if—(a) before the commencement, a person had made an eligibility application; and(b) immediately before the commencement, the eligibility application had not been decided or withdrawn.(2) The chief executive must decide the application under the amended Act.
354 Particular existing eligibility declarations(1) This section applies if—(a) before the commencement, the chief executive issued, or was taken to have issued, an eligibility declaration to a person; and(b) immediately before the commencement, the eligibility declaration had not expired; and(c) on the commencement, the person—(i) is a new relevant disqualified person; or(ii) is charged with a new disqualifying offence.(2) The eligibility declaration is taken to have expired.
355 Existing application for reversal of decision refusing an eligibility declaration(1) This section applies if—(a) before the commencement, a person had made an application under section 107(2) to the chief executive; and(b) immediately before the commencement, the application had not been decided or withdrawn.(2) The chief executive must decide the application under the amended Act.
356 Undecided reviews and appeals by new disqualified persons(1) This section applies if—(a) before the commencement, a person—(i) applied, under section 109, for a review of a part 5 reviewable decision; or(ii) appealed, under the QCAT Act, against a decision of the tribunal relating to a part 5 reviewable decision; and(b) immediately before the commencement, the application or appeal had not been decided or withdrawn; and(c) on the commencement, the person is a new disqualified person.(2) The application or appeal, and any proceeding in relation to the application or appeal, must be dismissed—(a) if a proceeding in relation to the application or appeal is before a court—by the court; or(b) otherwise—by the tribunal, even if the dismissal would be contrary to a direction of the Court of Appeal.
357 Review of part 5 reviewable decision about new disqualified person(1) This section applies if—(a) before the commencement—(i) the chief executive made a part 5 reviewable decision about a person; and(ii) the person had not applied for a review of the decision under section 109; and(b) on the commencement, the person is a new disqualified person.(2) The amended Act applies in relation to the part 5 reviewable decision.
358 Appeal by new disqualified person against decision of tribunal on review of part 5 reviewable decision(1) This section applies if—(a) before the commencement, a person may have appealed under the QCAT Act against a decision of the tribunal relating to a part 5 reviewable decision; and(b) on the commencement—(i) the time within which the person may appeal under the QCAT Act has not passed; and(ii) the person is a new disqualified person.(2) Any appeal started by the person against the decision must be dismissed—(a) if a proceeding in relation to the appeal is before a court—by the court; or(b) otherwise—by the tribunal, even if the dismissal would be contrary to a direction of the Court of Appeal.
359 Existing appeal by chief executive against decision of tribunal on review of part 5 reviewable decision(1) This section applies if—(a) before the commencement, the chief executive appealed, under the QCAT Act, against a decision of the tribunal relating to a part 5 reviewable decision about a person; and(b) immediately before the commencement, the appeal had not been decided or withdrawn; and(c) on the commencement, the person is a new disqualified person.(2) The entity hearing the appeal must apply the amended Act in relation to the matter the subject of the appeal.
360 Appeal by chief executive against decision of tribunal on review of part 5 reviewable decision(1) This section applies if—(a) before the commencement, the chief executive may have appealed under the QCAT Act against a decision of the tribunal relating to a part 5 reviewable decision about a person; and(b) on the commencement—(i) the time within which the chief executive may appeal under the QCAT Act (the
"appeal period" ) has not passed; and(ii) the person is a new disqualified person.(2) The chief executive may appeal against the decision within the appeal period and the entity hearing the appeal must apply the amended Act in relation to the matter the subject of the appeal.
361 Disqualification orders for new disqualifying offences committed before commencement A court may make a disqualification order under section 137 in relation to a person convicted after the commencement of a new disqualifying offence committed before the commencement.
362 Definition for subdivision In this subdivision—
"relevant service provider" has the meaning given by former section 140(1).
363 Immunity from liability—use of restrictive practices before commencement Former part 6, division 7, subdivision 1 continues to apply in relation to the use of a restrictive practice by a relevant service provider, or an individual acting for a relevant service provider, before the commencement.
364 Immunity from liability—locking gates, doors and windows before commencement Former sections 218 and 219 continue to apply in relation to the locking of gates, doors or windows by a relevant service provider, or an individual acting for a relevant service provider, before the commencement.
365 Repeal of former ss 339 and 340 The Acts Interpretation Act 1954 , sections 20 and 20A do not apply in relation to the repeal of former sections 339 and 340.
366 Transitional regulation-making power(1) A regulation (a
"transitional regulation" ) may make provision about a matter for which—(a) it is necessary to make provision to allow or facilitate the doing of anything to achieve the transition from the operation of this Act as it was in force immediately before the commencement to the operation of the amended Act; and(b) this Act does not make provision or sufficient provision.(2) A transitional regulation may have retrospective operation to a day not earlier than the day of commencement.(3) A transitional regulation must declare it is a transitional regulation.(4) A transitional regulation may only be made within 2 years after the commencement.(5) This subdivision and any transitional regulation expire 3 years after the day of commencement.