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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Disability (Mandatory Reporting)
Bill 2010
A BILL FOR
An Act to provide for the protection of persons with a disability; and for
other purposes.
Contents
1Short title
2Commencement
3Interpretation
4Person to whom this Act
applies
5Notification of abuse or
neglect
6Protection from liability for voluntary or
mandatory notification
7Confidentiality of notification of abuse or
neglect
8Referral to appropriate authority
9Regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Disability (Mandatory Reporting)
Act 2010.
This Act will come into operation 6 months after assent.
(1) In this Act, unless the contrary intention appears—
abuse or neglect, in relation to a person, means physical or
emotional abuse of the person, or neglect of the person, to the extent that the
person has suffered, or is likely to suffer, physical or psychological injury
detrimental to the person's wellbeing and includes a reasonable likelihood of
the person being killed, injured, abused, neglected or sexually abused by
another person;
Chief Executive means the person for the time being holding,
or acting in, the position of chief executive of the Department;
dentist means a person who is registered as a dental
practitioner under the law of this State;
Department means the administrative unit of the Public
Service prescribed by regulation for the purposes of this definition;
developmental educator means a person who holds the degree of
Bachelor of Disability and Community Rehabilitation conferred by the Flinders
University of South Australia or who has completed a course of education or
training approved by the Minister for the purposes of this definition;
disability means any of the following:
(a) a disability within the meaning of the Disability
Services Act 1993;
(b) a chronic illness, including a mental illness within the meaning of
the Mental
Health Act 1993;
(c) a condition prescribed by regulation;
government organisation means a government department, agency
or instrumentality;
medical practitioner means a person who is registered as a
medical practitioner under the law of this State;
non-government organisation means—
(a) a business; or
(b) a service provider; or
(c) a group organised for some purpose, work or undertaking (such as a
society, club, institution or body),
whether incorporated or unincorporated, and includes a local government
organisation;
notifier means a person who makes a notification under
section 5(1);
occupational therapist means a person who is registered as an
occupational therapist under the law of this State;
person to whom this Act applies—see
section 4;
pharmacist means a person who is registered as a pharmacist
under the law of this State;
psychologist means a person who is registered as a
psychologist under the law of this State;
physiotherapist means a person who is registered as a
physiotherapist under the law of this State.
(2) For the purposes of this Act, an organisation may consist of a single
person.
4—Person
to whom this Act applies
This Act applies to a person who has a disability such that he or
she—
(a) is, or is likely to be, unable to communicate to another person a
complaint about abuse or neglect; or
(b) is, or is likely to be, unable to understand the nature of abuse or
neglect in order to make a complaint about it.
5—Notification
of abuse or neglect
(a) a prescribed person suspects on reasonable grounds that a person to
whom this Act applies has been, or is being, abused or neglected; and
(b) the suspicion is formed in the course of the person's work (whether
paid or voluntary) or of carrying out official duties,
the person must notify the Department of that suspicion as soon as
practicable after he or she forms the suspicion.
Maximum penalty: $10 000.
(2) A notification under this section must be accompanied by a statement
of the observations, information and opinions on which the suspicion is
based.
(3) It is a defence to a charge of an offence against this section
relating to the suspected abuse or neglect of a person for the defendant to
prove that he or she made a notification under section 11 the Children's
Protection Act 1993 in relation to that suspected abuse or
neglect.
(4) A person does not necessarily exhaust his or her duty of care to a
person by giving a notification under this section.
(5) A person must not threaten or intimidate, or cause damage, loss or
disadvantage to, a prescribed person because the person has discharged, or
proposes to discharge, his or her duty under
subsection (1).
Maximum penalty: $10 000.
(6) In this section—
prescribed person means any of the following
persons:
(a) a medical practitioner;
(b) a pharmacist;
(c) a registered or enrolled nurse;
(d) a dentist;
(e) a psychologist;
(f) a developmental educator;
(g) a physiotherapist;
(h) an occupational therapist;
(i) a police officer;
(j) a social worker;
(k) a minister of religion;
(l) a person who is an employee of, or volunteer in, an organisation
formed for religious or spiritual purposes;
(m) a person who is an employee of, or volunteer in, a government or
non-government organisation that provides a prescribed service (whether or not
the organisation also provides any other service), being a person
who—
(i) is engaged in the actual delivery of the prescribed service;
or
(ii) holds a management position in the relevant organisation the duties
of which include direct responsibility for, or direct supervision of, the
provision of the prescribed service;
(n) a person of a class prescribed by regulation;
prescribed service means a service that is provided wholly or
primarily for persons with disabilities or their carers and consists of
1 or more of the following:
(a) residential services;
(b) health services;
(c) sport or recreation services;
(d) home care and family support services;
(e) information services;
(f) education or training services;
(g) advocacy services;
(h) transport services;
(i) services prescribed by regulation.
6—Protection
from liability for voluntary or mandatory notification
A person who (whether voluntarily or pursuant to a requirement of this Act)
notifies the Department of a suspicion that a person has been or is being abused
or neglected, or provides any information to the Department in respect of such a
notification—
(a) cannot, by virtue of doing so, be held to have breached any code of
professional etiquette or ethics, or to have departed from any accepted form of
professional conduct; and
(b) insofar as he or she has acted in good faith, incurs no civil or
criminal liability in respect of the notification or the provision of the
information.
7—Confidentiality
of notification of abuse or neglect
(1) Subject to this section, a person who receives a notification under
this Act, or who otherwise becomes aware of the identity of a notifier, must not
disclose the identity of the notifier to any other person unless the
disclosure—
(a) is made in the course of official duties to another person acting in
the course of official duties; or
(b) is made with the consent of the notifier; or
(c) is made by way of evidence adduced in accordance with
subsections (2)
and
(3).
Maximum penalty: $10 000.
(2) Subject to
subsection (3)—
(a) no evidence as to the identity of a notifier, or from which the
identity of the notifier could be deduced, may be adduced in proceedings before
a court without the permission of the court; and
(b) unless such permission is granted, a party or witness in those
proceedings must not be asked, and, if asked, cannot be required to answer, any
question that cannot be answered without disclosing the identity of, or leading
to the identification of, the notifier.
(3) A court cannot
grant permission under
subsection (2)
unless—
(a) the court is satisfied that the evidence is of critical importance in
the proceedings and that failure to admit it would prejudice the proper
administration of justice; or
(b) the notifier consents to the admission of the evidence in the
proceedings.
(4) An application for permission to adduce evidence under
subsection (2)—
(a) must not, except as authorised by the court, be heard and determined
in public; and
(b) must be conducted in such a manner as to protect, so far as may be
practicable, the identity of the notifier pending the determination of the
application.
8—Referral
to appropriate authority
The Chief Executive must ensure that a report of each notification under
section 5 is made
and referred to an appropriate authority of the State for further investigation
and action.
The Governor may make such regulations as are contemplated by, or necessary
or expedient for the purposes of, this Act.