Aged Care Restrictive Practices Substitute Decision-maker Act 2024 (Vic)

Version No. 001

Aged Care Restrictive Practices Substitute Decision-maker Act 2024

No. 49 of 2024

Version as at

1 July 2025

TABLE OF PROVISIONS

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

3Definitions

4Meaning of decision-making capacity

Part 2—Nomination of restrictive practices substitute decision-maker

5Nomination of restrictive practices nominee

6Revocation of nomination of restrictive practices nominee

Part 3—Appointment of restrictive practices substitute decision-maker

7Appointment of restrictive practices nominee as restrictive practices substitute decision-maker

8Appointment of temporary restrictive practices substitute decision-maker

9Appointment of restrictive practices substitute decision-maker by VCAT

Part 4—Consent to use of restrictive practices

10VCAT may consent to the use of restrictive practices

Part 5—Other orders

11VCAT orders in relation to decision-making capacity

12Other orders

Part 6—VCAT procedure

13Parties

14Application for rehearing

15Powers of VCAT on rehearing

16Parties and notice

17Stay of first instance order pending rehearing

Part 7—Offences

18Offence to induce nomination of restrictive practices nominee

19Offence to make false or misleading statement regarding restrictive practices substitute decision‑maker nomination

Part 8—General

20Criminal liability of officers of bodies corporate—failure to exercise due diligence

21Regulations

Part 9—Transitional provisions

22Transitional provision—nomination of restrictive practices nominee

23Transitional provision—appointment of restrictive practices substitute decision-makers under the Quality of Care Principles

Part 10—Amendment of Victorian Civil and Administrative Tribunal Act 1998

24New Part 2AA of Schedule 1 inserted

25Repeal of this Part

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Endnotes

1     General information

2     Table of Amendments

3     Explanatory details

Version No. 001

Aged Care Restrictive Practices Substitute Decision-maker Act 2024

No. 49 of 2024

Version as at

1 July 2025

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1Purposes

The purposes of this Act are—

(a)to provide for the appointment of restrictive practices substitute decision-makers for the purposes of the Aged Care Act 1997 of the Commonwealth; and

(b)to make related amendments to the Victorian Civil and Administrative Tribunal Act 1998.

2Commencement

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 1 July 2025, it comes into operation on that day.

3Definitions

(1)In this Act—

adult means a person who is of or over the age of 18 years;

approved provider has the same meaning as in the Aged Care Quality and Safety Commission Act 2018 of the Commonwealth;

authorised affidavit taker has the same meaning as in the Oaths and Affirmations Act 2018;

behaviour support plan means a plan prepared in accordance with Division 5 of Part 4A of the Quality of Care Principles;

Note

Section 15HA of the Quality of Care Principles requires an approved provider to prepare a behaviour support plan for a care recipient for whom behaviour support is needed.

care recipient has the same meaning as in the Aged Care Quality and Safety Commission Act 2018 of the Commonwealth;

conviction has the same meaning as in the Spent Convictions Act 2021;

decision-making capacity has the meaning given in section 4;

domestic partner of a person means—

(a)a person who is in a registered relationship with the person; or

(b)an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—

(i)for fee or reward; or

(ii)on behalf of another person or an organisation (including a government, a government agency, a body corporate or a charitable or benevolent organisation);

eligible applicant means any of the following—

(a)a restrictive practices nominee;

(b)any of the persons referred to in section 8(2) in relation to a care recipient;

(c)a restrictive practices substitute decision-maker appointed under section 9;

family violence intervention order has the same meaning as in the Family Violence Protection Act 2008;

health facility means any of the following—

(a)a residential care service within the meaning of the Aged Care Act 1997 of the Commonwealth;

(b)the following within the meaning of the Health Services Act 1988—

(i)a denominational hospital;

(ii)a multi purpose service;

(iii)a private hospital;

(iv)a public health service;

(v)a public hospital;

(vi)a residential care service;

(vii)a State funded residential care service;

(c)the Victorian Institute of Forensic Mental Health established under Chapter 14 of the Mental Health and Wellbeing Act 2022;

(d)a residential service within the meaning of the Disability Act 2006;

(e)accommodation approved for supervised treatment under section 187 of the Disability Act 2006;

(f)a short-term accommodation dwelling within the meaning of the Disability Act 2006;

(g)an SDA dwelling within the meaning of the Residential Tenancies Act 1997;

(h)a supported residential service within the meaning of section 214 of the Social Services Regulation Act 2021;

primary carer of a person means an adult who—

(a)is in a care relationship with the person; and

(b)has principal responsibility for the person's care;

Quality of Care Principles means the Quality of Care Principles 2014 made under the Aged Care Act 1997 of the Commonwealth;

restrictive practice has the same meaning as in section 54-9 of the Aged Care Act 1997 of the Commonwealth;

Note

Section 15E of the Quality of Care Principles sets out the following general categories of restrictive practices—

·chemical restraint;

·environmental restraint;

·mechanical restraint;

·physical restraint;

·seclusion.

restrictive practices decision means a decision regarding the use of a restrictive practice in relation to a care recipient;

restrictive practices nominee means an eligible adult who is nominated under section 5(1);

restrictive practices substitute decision-maker has the same meaning as it has in the Quality of Care Principles;

spent conviction has the same meaning as in the Spent Convictions Act 2021;

spouse of a person means a person to whom the person is married;

temporary restrictive practices substitute decision-maker means a restrictive practices substitute decision-maker appointed by force of section 8(2).

(2)For the purposes of the definition of domestic partner in subsection (1)—

(a)registered relationship has the same meaning as it has in the Relationships Act 2008; and

(b)in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of the relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and

(c)a person is not a domestic partner of another person merely because they are co-tenants.

(3)For the purposes of the definition of primary carer in subsection (1), a care recipient who is cared for in a health facility by another person—

(a)is not, by reason only of that fact, to be regarded as being in the care of that other person; and

(b)remains in the care relationship that the care recipient was in immediately before being cared for in that health facility.

4Meaning of decision-making capacity

(1)A person has decision-making capacity to make a decision to which this Act applies if the person is able to do the following—

(a)understand the information relevant to the decision and the effect of the decision;

(b)retain that information to the extent necessary to make the decision;

(c)use or weigh that information as part of the process of making the decision;

(d)communicate the decision and the person's views and needs as to the decision in some way, including by speech, gestures or other means.

(2)For the purposes of subsection (1), an adult is presumed to have decision-making capacity unless there is evidence to the contrary.

(3)For the purposes of subsection (1)(a), a person is taken to understand information relevant to a decision if the person understands an explanation of the information given to the person in a way that is appropriate to the person's circumstances, whether by using modified language, visual aids or any other means.

(4)In determining whether or not a person has decision-making capacity, regard must be had to the following—

(a)a person may have decision-making capacity to make some decisions and not others;

(b)if a person does not have decision-making capacity for a particular decision, it may be temporary rather than permanent;

(c)it should not be assumed that a person does not have decision-making capacity to make a decision—

(i)on the basis of the person's appearance; or

(ii)because the person makes a decision that is, in the opinion of others, unwise;

(d)a person has decision-making capacity to make a decision if it is possible for the person to make a decision with practicable and appropriate support.

Examples

Practicable and appropriate support includes the following—

(a)using information or formats tailored to the particular needs of a person;

(b)communicating or assisting a person to communicate the person's decision;

(c)giving a person additional time and discussing the matter with the person;

(d)using technology that alleviates the effects of a person's disability.

(5)A person who is assessing whether a person has decision-making capacity must take reasonable steps to conduct the assessment at a time and in an environment in which the person's decision‑making capacity can be most accurately assessed.

PART 2—NOMINATION OF RESTRICTIVE PRACTICES SUBSTITUTE DECISION-MAKER

5Nomination of restrictive practices nominee

(1)A person who is of or over the age of 18 years may nominate an eligible adult to act as the person's restrictive practices substitute decision‑maker if—

(a)the person—

(i)has decision-making capacity to make the nomination at the time of making the nomination; and

(ii)understands the nature and effect of the nomination; and

(b)the nomination is made in accordance with this section.

(2)A nomination under subsection (1)—

(a)must be made in writing and must include the following particulars—

(i)the full name, date of birth and residential address of the person making the nomination;

(ii)the full name and residential address of the restrictive practices nominee; and

(b)must be signed by the person making the nomination in the presence of an authorised affidavit taker; and

(c)must be in English; and

(d)may include a statement outlining the preferences and values of the person making the nomination regarding the use of restrictive practices.

(3)If a statement under subsection (2)(d) is expressed in a language other than English, it must be translated into English and must comply with any prescribed requirements concerning certification of the translation.

(4)The authorised affidavit taker must—

(a)sign and date the nomination; and

(b)legibly write, type or stamp below the affidavit taker's signature the capacity in which the affidavit taker has authority to witness the nomination; and

(c)certify on the nomination that at the time of signing the document, the person making the nomination—

(i)appeared to have decision-making capacity; and

(ii)appeared to understand the nature and consequences of making the nomination; and

(iii)appeared to freely and voluntarily sign the document; and

(d)certify that the authorised affidavit taker is not—

(i)the person named in the nomination as the restrictive practices nominee; or

(ii)a relative of the person making the nomination; or

(iii)an employee or agent of an approved provider that provides aged care to the person making the nomination.

(5)Any person who assists a person to make a nomination must—

(a)on the face of the document—

(i)legibly write or stamp the name and address of the person providing the assistance; and

(ii)include a written description of the nature of the assistance provided to the person making the nomination; and

Examples

Translation assistance, assistance with writing or reading.

(b)if the assistance provided is translation, comply with any prescribed requirements concerning certification of the translation.

(6)In this section—

eligible adult means an adult—

(a)who consents to be a restrictive practices nominee for the person making the nomination; and

(b)who is not—

(i)an employee or agent of the approved provider that provides aged care to the person making the nomination, if the person making the nomination is a care recipient; or

(ii)a person who was, is or may be involved with the preparation of a behaviour support plan for the person making the nomination, if the person making the nomination is a care recipient; or

(iii)a person who is subject to a current family violence intervention order in relation to which the person making the nomination is an affected family member (within the meaning of the Family Violence Protection Act 2008); or

(iv)a person who has a conviction, other than a spent conviction, for committing an offence against the person making the nomination.

Note

Sections 15FA, 15FB and 15FC of the Quality of Care Principles set out the requirements that must be satisfied before a restrictive practice can be used in relation to a care recipient, including that the restrictive practice is used only as a last resort to prevent harm to the care recipient or other persons.

6Revocation of nomination of restrictive practices nominee

(1)A person who makes a nomination under section 5 may revoke that nomination if—

(a)the person—

(i)has decision-making capacity at the time of the revocation to revoke the nomination; and

(ii)understands the nature and effect of the revocation; and

(b)the revocation is in accordance with this section.

(2)A revocation under subsection (1)—

(a)must be in writing and must include the following particulars—

(i)the full name, date of birth and residential address of the person revoking the nomination;

(ii)the full name and residential address of the restrictive practices nominee; and

(b)must be signed by the person revoking the nomination in the presence of an authorised affidavit taker; and

(c)must be in English.

(3)The authorised affidavit taker must—

(a)sign and date the revocation; and

(b)legibly write, type or stamp below the affidavit taker's signature the capacity in which the affidavit taker has authority to witness the revocation; and

(c)certify on the revocation that at the time of signing the document, the person making the revocation—

(i)appeared to have decision-making capacity; and

(ii)appeared to understand the nature and consequences of making the revocation; and

(iii)appeared to freely and voluntarily sign the document; and

(d)certify that the authorised affidavit taker is not—

(i)the person named in the revocation as the restrictive practices nominee; or

(ii)a relative of the person making the revocation; or

(iii)an employee or agent of an approved provider that provides aged care to the person making the revocation.

(4)Any person who assists a person to revoke a nomination must—

(a)on the face of the document—

(i)legibly write or stamp the name and address of the person providing the assistance; and

(ii)include a written description of the nature of the assistance provided to the person making the revocation; and

Examples

Translation assistance, assistance with writing or reading.

(b)if the assistance provided is translation, comply with any prescribed requirements concerning certification of the translation.

PART 3—APPOINTMENT OF RESTRICTIVE PRACTICES SUBSTITUTE DECISION-MAKER

7Appointment of restrictive practices nominee as restrictive practices substitute decision-maker

(1)A person is appointed, by force of this subsection, as the restrictive practices substitute decision‑maker for a care recipient if—

(a)the care recipient nominated that person under section 5 (whether or not the care recipient was a care recipient at the time of making the nomination); and

(b)the person is reasonably available, willing and able to make restrictive practices decisions for the care recipient.

(2)An appointment by force of subsection (1) ends if the care recipient revokes the nomination in accordance with section 6.

(3)An appointment by force of subsection (1)—

(a)ceases to have effect if the restrictive practices substitute decision-maker ceases to be reasonably available, willing and able to make restrictive practices decisions for the care recipient; and

(b)resumes its effect when the restrictive practices substitute decision-maker again becomes reasonably available, willing and able to make restrictive practices decisions for the care recipient.

(4)This section does not apply in relation to a care recipient at any time that the care recipient is subject to an inpatient treatment order within the meaning of the Mental Health and Wellbeing Act 2022.

8Appointment of temporary restrictive practices substitute decision-maker

(1)This section applies if there is no restrictive practices substitute decision-maker appointed for a care recipient by force of section 7(1) or by VCAT under section 9(2).

(2)The first of the following persons who is an adult in a close and continuing relationship with the care recipient and who is reasonably available, willing and able to make restrictive practices decisions on behalf of the care recipient is appointed by force of this subsection as the temporary restrictive practices substitute decision‑maker for that care recipient—

(a)the spouse or domestic partner of the care recipient;

(b)the primary carer of the care recipient;

(c)the oldest child of the care recipient, followed by the other children in descending order of age if there are two or more adult children;

(d)the older parent of the care recipient;

(e)the younger parent of the care recipient;

(f)the oldest sibling of the care recipient, followed by the other siblings of the care recipient in descending order of age if there are two or more adult siblings.

(3)The appointment of a temporary restrictive practices substitute decision-maker ends—

(a)when the restrictive practices decision in relation to which the temporary restrictive practices substitute decision-maker is appointed is made; or

(b)if the restrictive practices decision in relation to which the temporary restrictive practices substitute decision-maker is appointed is not made, when the earliest of the following occurs—

(i)a restrictive practices substitute decision-maker is appointed by force of section 7(1); or

(ii)a restrictive practices substitute decision-maker previously appointed by force of section 7(1) becomes reasonably available, willing and able to make restrictive practices decisions for the care recipient; or

(iii)a person who takes priority under subsection (2) becomes reasonably available, willing and able to make the restrictive practices decision for the care recipient; or

(iv)the temporary restrictive practices substitute decision-maker ceases to be reasonably available, willing and able to make the restrictive practices decision for the care recipient.

(4)A person is not eligible to be appointed as a temporary restrictive practices substitute decision‑maker by force of subsection (2) if the person—

(a)is an employee or agent of the approved provider that provides aged care to the care recipient; or

(b)was, is or may be involved with the preparation of a behaviour support plan for the care recipient; or

(c)is subject to a current family violence intervention order in relation to which the care recipient is an affected family member (within the meaning of the Family Violence Protection Act 2008); or

(d)has a conviction, other than a spent conviction, for committing an offence against the care recipient.

(5)This section does not apply in relation to a care recipient at any time that the care recipient is subject to an inpatient treatment order within the meaning of the Mental Health and Wellbeing Act 2022.

9Appointment of restrictive practices substitute decision-maker by VCAT

(1)A person who is of or over the age of 18 years may apply to VCAT to be appointed as the restrictive practices substitute decision-maker for a care recipient.

(2)On an application under subsection (1), VCAT may appoint the applicant as the restrictive practices substitute decision-maker for a care recipient if VCAT is satisfied that—

(a)the applicant has an ongoing personal or professional relationship with the care recipient and is reasonably available, willing and able to act as a restrictive practices substitute decision-maker on behalf of the care recipient; and

Examples

1 A member of the extended family of the care recipient.

2 A close personal friend of the care recipient.

3 A former carer of the care recipient.

4 A general practitioner or allied health professional who has treated the care recipient.

5 A lawyer or accountant who acts on behalf of the care recipient.

6 A trustee or a director of a trust in which the care recipient is a beneficiary.

(b)no restrictive practices substitute decision‑maker is appointed by force of section 7(1) and no temporary restrictive practices substitute decision-maker is appointed by force of section 8(2) for the care recipient; and

(c)the applicant is not—

(i)an employee or agent of the approved provider that provides aged care to the care recipient; or

(ii)a person who was, is or may be involved with the preparation of the behaviour support plan for the care recipient; or

(iii)subject to a current family violence intervention order in relation to which the care recipient is an affected family member (within the meaning of the Family Violence Protection Act 2008); or

(iv)a person who has a conviction, other than a spent conviction, for committing an offence against the care recipient.

(3)A person appointed as a restrictive practices substitute decision-maker for a care recipient under subsection (2) continues to be the restrictive practices substitute decision-maker for the care recipient—

(a)notwithstanding a change in the availability, willingness or ability of a person specified in section 8(2) to act as the temporary restrictive practices substitute decision‑maker for the care recipient; and

(b)until the earlier of the following—

(i)a restrictive practices substitute decision-maker is appointed by force of section 7(1); or

(ii)the end of the term specified in the appointment; or

(iii)VCAT makes an order revoking the appointment.

PART 4—CONSENT TO USE OF RESTRICTIVE PRACTICES

10VCAT may consent to the use of restrictive practices

(1)An approved provider that provides aged care to a care recipient may apply to VCAT for consent to the use of a restrictive practice in relation to the care recipient if the restrictive practice is set out in the behaviour support plan for the care recipient.

(2)VCAT may consent to the use of the restrictive practice on the care recipient if VCAT is satisfied that—

(a)the care recipient does not have a restrictive practices substitute decision-maker under section 7, 8 or 9 who is reasonably available, willing and able to make restrictive practices decisions for the care recipient; and

(b)the use of the restrictive practice is appropriate.

(3)A consent under subsection (2)—

(a)operates for the period expressed in the consent; and

(b)may be subject to any conditions VCAT considers appropriate.

(4)VCAT must have regard to the following when determining whether or not to consent to the use of a restrictive practice in relation to the care recipient—

(a)any statement of preferences and values prepared by the care recipient under section 5(2)(d);

(b)any preferences and values of the care recipient otherwise expressed by the care recipient or inferred from the care recipient's life.

Note

Sections 15FA, 15FB and 15FC of the Quality of Care Principles set out the requirements that must be satisfied before a restrictive practice can be used in relation to a care recipient, including that the restrictive practice is used only as a last resort to prevent harm to the care recipient or other persons.

PART 5—OTHER ORDERS

11VCAT orders in relation to decision-making capacity

(1)An eligible applicant may apply to VCAT for an order under subsection (3).

(2)VCAT may make an order under subsection (3)—

(a)on an application under subsection (1); or

(b)on its own motion.

(3)VCAT may order that a care recipient—

(a)has decision-making capacity to nominate, or revoke the nomination of, a restrictive practices nominee; or

(b)had decision-making capacity to nominate, or revoke the nomination of, a restrictive practices nominee at the time of making a nomination or revocation; or

(c)does not have decision-making capacity to nominate, or revoke the nomination of, a restrictive practices nominee; or

(d)did not have decision-making capacity to nominate, or revoke the nomination of, a restrictive practices nominee at the time of making a nomination or revocation.

(4)If VCAT makes an order under subsection (3)(d), any nomination or revocation made by the care recipient is void and of no effect.

(5)A person other than an eligible applicant may make an application under subsection (1) if VCAT grants that person leave.

(6)VCAT must not grant a person leave under subsection (5) unless VCAT is satisfied that the person has a special interest in the affairs of the care recipient to whom the application relates.

12Other orders

(1)An eligible applicant may apply to VCAT in respect of the following matters—

(a)the validity of a nomination of a restrictive practices nominee;

(b)the validity of a revocation of a nomination of a restrictive practices nominee;

(c)the appointment of a restrictive practices substitute decision-maker under section 7(1) or 8(2);

(d)the revocation of the appointment of a restrictive practices substitute decision‑maker under section 9(2).

(2)VCAT may make an order under subsection (3)—

(a)on an application under subsection (1); or

(b)on its own motion.

(3)VCAT may make—

(a)an order declaring that a nomination under section 5 was validly made, whether or not the nomination complies with the requirements of section 5(2), (3), (4) and (5); or

(b)an order declaring that a nomination under section 5 was validly revoked under section 6, whether or not the revocation complies with the requirements of section 6(2), (3) and (4); or

(c)an order setting aside a nomination under section 5, or a revocation of a nomination under section 6, on the grounds that it was not validly made; or

(d)an order declaring that a person is the restrictive practices substitute decision‑maker for a care recipient; or

(e)any other order it considers necessary.

(4)Without limiting subsection (3)(c), VCAT may declare a nomination under section 5 to be invalid if it finds that the person who made the nomination was induced to do so by dishonesty or undue influence or through the use of threats, violence or abuse.

(5)A person other than an eligible applicant may make an application under subsection (1) if VCAT grants that person leave.

(6)VCAT must not grant a person leave under subsection (5) unless VCAT is satisfied that the person has a special interest in the affairs of the care recipient to whom the application relates.

PART 6—VCAT PROCEDURE

13Parties

In addition to any other parties, the following are parties to a proceeding before VCAT on an application under section 10(1), 11(1) or 12(1)—

(a)the person who made the application;

(b)the care recipient who is the subject of the application;

(c)in the case of an application concerning the nomination, or the revocation of the nomination, of a restrictive practices substitute decision-maker, that restrictive practices substitute decision-maker;

(d)any other person VCAT considers is appropriate to join as a party to the proceeding.

14Application for rehearing

(1)Subject to subsection (2), a person may apply to VCAT for a rehearing of an application in relation to which VCAT made an order under this Act—

(a)if the person was a party to the hearing of the application at first instance; or

(b)if the person was given notice of the hearing of the application at first instance but was not a party to the hearing of the application—

(i)with the leave of VCAT; or

(ii)in the case of the Public Advocate, without seeking the leave of VCAT.

(2)A person is not entitled to apply for a rehearing of any of the following—

(a)an application to revoke the nomination of a restrictive practices substitute decision‑maker;

(b)an application in relation to which an order was made by VCAT constituted by the President, whether with or without other members;

(c)an application for a rehearing or for leave to apply for a rehearing.

(3)An application for a rehearing or for leave to apply for a rehearing must be made within 28 days after the day that the order which is the subject of the rehearing is made.

(4)For the purposes of subsection (3), if VCAT gives oral reasons for making an order and a party then requests written reasons under section 117 of the Victorian Civil and Administrative Tribunal Act 1998, the day on which the written reasons are given to the party is taken to be the day on which the order was made.

15Powers of VCAT on rehearing

(1)On an application under section 14 for the rehearing of an application, VCAT must rehear that application and, for that purpose, VCAT has all the functions and powers that VCAT had with respect to the application at first instance.

(2)On a rehearing, VCAT may—

(a)affirm the order of VCAT at first instance; or

(b)vary the order of VCAT at first instance; or

(c)set aside the order of VCAT at first instance and make another order in substitution of it.

16Parties and notice

(1)In addition to any other parties, each person who was a party to the proceeding in VCAT at first instance is a party to the rehearing.

Note

See also section 59 of the Victorian Civil and Administrative Tribunal Act 1998.

(2)The principal registrar of VCAT must give notice of an application for a rehearing, of the hearing of an application for a rehearing and of any order of VCAT in respect of the application for a rehearing to—

(a)each person who was entitled to notice of the proceeding at first instance; and

(b)any other person who VCAT considers should be notified.

17Stay of first instance order pending rehearing

(1)Subject to subsection (2), an application for a rehearing does not affect the operation of any order to which the application relates or prevent the taking of action to enforce the order.

(2)VCAT may make an order staying the operation of an order to which an application for a rehearing relates pending the determination of the rehearing of the application.

PART 7—OFFENCES

18Offence to induce nomination of restrictive practices nominee

(1)A person must not induce the nomination of a restrictive practices nominee by another person—

(a)by dishonesty; or

(b)by undue influence; or

(c)through the use of threats, violence or abuse.

Penalty:600 penalty units or imprisonment for 5 years or both, in the case of a natural person;

2400 penalty units, in the case of a body corporate.

(2)If a person is found guilty of an offence against subsection (1), the nomination is void and of no effect.

19Offence to make false or misleading statement regarding restrictive practices substitute decision‑maker nomination

A person must not make a statement that the person knows to be false or misleading in relation to another person's restrictive practices substitute decision-maker nomination.

Penalty:600 penalty units or imprisonment for 5 years or both, in the case of a natural person;

2400 penalty units, in the case of a body corporate.

PART 8—GENERAL

20Criminal liability of officers of bodies corporate—failure to exercise due diligence

(1)If a body corporate commits an offence against section 18(1) or 19, an officer of the body corporate also commits an offence against the provision if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate.

(2)In determining whether an officer of a body corporate failed to exercise due diligence, a court may have regard to the following—

(a)what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate;

(b)whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate;

(c)what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate;

(d)any other relevant matter.

(3)Without limiting any other defence available to an officer of a body corporate, the officer may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.

(4)An officer of a body corporate may commit an offence against section 18(1) or 19 whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.

(5)In this section—

body corporate means corporation within the meaning of section 57A of the Corporations Act;

officer, in relation to a body corporate, means—

(a)a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or

(b)a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the body corporate.

21Regulations

(1)The Governor in Council may make regulations for or with respect to the following matters—

(a)prescribing forms for the purposes of this Act;

(b)prescribing penalties not exceeding 20 penalty units for a contravention of the regulations;

(c)any other matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

(2)The regulations—

(a)may be of general or limited application;

(b)may differ according to differences in time, place or circumstances;

(c)may require matters to be—

(i)in accordance with specified standards or specified requirements; or

(ii)approved by, or to the satisfaction of, a specified person or body or a specified class of persons or bodies; or

(iii)as specified in both subparagraphs (i) and (ii);

(d)may apply, adopt or incorporate any matter contained in any document, standard or code whether—

(i)wholly or partially or as amended by the regulations; or

(ii)as in force at a particular time; or

(iii)as amended from time to time;

(e)may provide in a specified case or class of cases for the exemption of persons or things or a class of persons or things from any provision of the regulations—

(i)whether unconditionally or on specified conditions; and

(ii)either wholly or to such an extent as is specified.

PART 9—TRANSITIONAL PROVISIONS

22Transitional provision—nomination of restrictive practices nominee

A restrictive practices nominee who was nominated under section 5A of the Quality of Care Principles and whose nomination was in force immediately before the commencement of section 5 of this Act is taken, on and after that commencement, to have been nominated under section 5.

23Transitional provision—appointment of restrictive practices substitute decision-makers under the Quality of Care Principles

A restrictive practices substitute decision-maker referred to in Item 1 in the Table to section 5B(2) of the Quality of Care Principles who was a restrictive practices substitute decision-maker immediately before the commencement of section 7(1) of this Act is taken, on and after that commencement, to have been appointed by force of section 7(1).

PART 10—AMENDMENT OF VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998

24New Part 2AA of Schedule 1 inserted

After Part 2 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 insert—

"PART 2AA—AGED CARE RESTRICTIVE PRACTICES SUBSTITUTE DECISION‑MAKER ACT 2024

4AADefinition

In this Part—

care recipient has the same meaning as in the Aged Care Quality and Safety Commission Act 2018 of the Commonwealth.

4AABPublic Advocate may intervene or be joined

In a proceeding under the Aged Care Restrictive Practices Substitute Decision‑maker Act 2024, the Public Advocate—

(a)may intervene at any time; and

(b)is entitled to be joined as a party.

4AACRepresentation

In a proceeding under the Aged Care Restrictive Practices Substitute Decision‑maker Act 2024, the care recipient to whom the proceeding relates may be represented by a professional advocate.

4AADConstitution of Tribunal for rehearing

The Tribunal is to be constituted for the purposes of a rehearing under Part 6 of the Aged Care Restrictive Practices Substitute Decision-maker Act 2024 by—

(a)a senior member or presidential member, if the order at first instance was made by an ordinary member; or

(b)a presidential member, if the order at first instance was made by a senior member; or

(c)a judicial member, if the order at first instance was made by a Deputy President; or

(d)a Vice President, if the order at first instance was made by more than one member (except where one or more of the members was a Vice President); or

(e)the President, if the order at first instance was made by a Vice President (whether with or without other members).

4AAEReferral to administrators for report

(1)The Tribunal may refer any matter relating to a proceeding under the Aged Care Restrictive Practices Substitute Decision‑maker Act 2024 to a government department, public authority, service provider, approved provider or the Public Advocate for investigation and report.

(2)A person or body to whom a matter is referred under this clause must investigate and report to the Tribunal on that matter.

(3)The Tribunal must not determine a question referred to a person or body under this clause unless the Tribunal has received and considered the report of the person or body.

4AAFNotice

(1)The principal registrar of VCAT must give notice of an application under section 10, 11 or 12 of the Aged Care Restrictive Practices Substitute Decision-maker Act 2024, the hearing of that application and any order made by VCAT in respect of the application to any person who VCAT considers has a special interest in the affairs of the care recipient to whom the application relates, including (if applicable) the Public Advocate.

(2)A hearing or order of the Tribunal in a proceeding under the Aged Care Restrictive Practices Substitute Decision-maker Act 2024 is not invalidated or affected only because of a failure to give notice—

(a)to the care recipient in respect of whom an application has been made, if the Tribunal—

(i)has dispensed with the requirement for notice to be given to the care recipient; and

(ii)has notified the Public Advocate that it has done so; or

(b)to any other person.

4AAGConfidentiality of proceedings

(1)Unless the Tribunal orders otherwise, a person must not publish or broadcast or cause to be published or broadcast any report of a proceeding under the Aged Care Restrictive Practices Substitute Decision‑maker Act 2024 that identifies, or could reasonably lead to the identification of, a party to the proceeding.

Penalty:20 penalty units.

(2)The Tribunal may make an order under subclause (1) only if it considers that it would be in the public interest to do so.

(3)An order of the Tribunal under subclause (1) must specify that pictures are not to be taken of any party to the proceeding.".

25Repeal of this Part

This Part is repealed on 1 July 2026.

Note

The repeal of this Part does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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ENDNOTES

1   General information

See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 16 October 2024

Legislative Council: 14 November 2024

The long title for the Bill for this Act was "A Bill for an Act to provide for the appointment of restrictive practices substitute decision-makers for the purposes of the Aged Care Act 1997 of the Commonwealth and to make related amendments to the Victorian Civil and Administrative Tribunal Act 1998 and for other purposes."

The Aged Care Restrictive Practices Substitute Decision-maker Act 2024 was assented to on 3 December 2024 and came into operation on 1 July 2025: section 2(2).

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

•     Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms.  See section 36(1A)(2A).

•     Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act.  See section 36(3A).

•     Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act.  Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  See section 36(3B).

•     Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001.  Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs.  See section 36(3C).

•     Location of "legislative items"

A "legislative item" is a penalty, an example or a note.  As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision.  For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision.  See section 36B.

•     Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act. 
See section 36(3)(3D)(3E).

2   Table of Amendments

There are no amendments made to the Aged Care Restrictive Practices Substitute Decision-maker Act 2024 by Acts and subordinate instruments.

3   Explanatory details

No entries at date of publication.