Restrictive practices: the Commonwealth requirement and the State authorisation 

A regulated restrictive practice used by an NDIS provider engages two bodies of law at once. The Commonwealth makes its use a matter of the provider's registration conditions, keyed to State and Territory authorisation; the State or Territory supplies the authorisation itself. Neither half is sufficient, and an answer that names only one of them is wrong.

This article explains the join, then compares the State and Territory authorisation schemes that were established in the linked articles.

The Commonwealth half

The National Disability Insurance Scheme Act 2013 (Cth) defines restrictive practice broadly in s 9, so the narrower category that actually matters — the regulated restrictive practice — is a creature of the Rules rather than of the Act.¹

The National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) define the five regulated restrictive practices in s 6, and ss 8(2), 9(2)(a), 10(2)(a) and 11(2)(a) make their use a matter of the conditions of a registered provider's registration, keyed to State and Territory prohibition and authorisation.²

Two consequences follow.

First, the Commonwealth does not authorise anything. It conditions registration on compliance with whatever the State or Territory requires. So the Commonwealth instrument tells you that authorisation is needed; it does not tell you how to get it.

Second, the enforcement consequence is a registration consequence. Using a regulated restrictive practice without the required authorisation is a breach of a condition of registration, enforced against the provider by the NDIS Quality and Safeguards Commissioner — not, by that route, a criminal or civil wrong against the participant.

The State and Territory half

Five of the eight jurisdictions have an authorisation scheme established in the linked articles, and they are built differently. This section does not state the position in New South Wales, Western Australia or the Northern Territory: no authorisation instrument for those jurisdictions was established in the linked articles, and nothing is asserted here about whether one exists.

South Australia — two officers. Part 5A of the Disability Inclusion Act 2018 (SA) splits authorisation between an Authorised Program Officer for level 1 practices (s 23B) and the Senior Authorising Officer for the rest.³ Section 23A(4) states the limit: nothing in the Part authorises the use of restrictive practices other than in accordance with this Part. Section 23M limits the purposes, expressly forbidding use as a punishment or for the convenience of others, or to address inadequate levels of staffing, equipment or facilities.

Victoria — authorisation plus approval. Section 135 of the Disability Act 2006 (Vic) prohibits use of a regulated restrictive practice without authorisation, and s 136 requires both an Authorised Program Officer's authorisation and, for specified forms, approval by the Senior Practitioner.⁴ Section 143 governs the Senior Practitioner's role. Victoria therefore has two consents for the more intrusive practices, not two routes.

Queensland — through a guardianship appointment. Queensland splits the work across two Acts. The Disability Services Act 2006 (Qld) supplies the plan requirements — s 50 and s 51 define the required content of a positive behaviour support plan — and sets cumulative conditions on the use of restraint in respite and community access services (ss 150 and 167).⁵ The Guardianship and Administration Act 2000 (Qld) then supplies the consent: chapter 5B provides for the appointment of a guardian for a restrictive practice matter, which is one consent route among others: the approval and consent arrangements depend on the practice and the service setting, so check the current Queensland scheme for the practice in question.⁶ Naming only one of the two Acts is the standard Queensland error.

Australian Capital Territory — a registered plan. The Senior Practitioner Act 2018 (ACT) defines a restrictive practice by primary purpose (s 7) rather than by listing forms, and its reach is unusually wide: s 8(1) binds providers of education, disability and child protection services.⁷ Section 9(2) prohibits use except under a registered positive behaviour support plan or on the emergency route, and ss 10 and 10A require reporting within five days.

Tasmania — inside the 2024 statute. Section 62 of the Disability Rights, Inclusion and Safeguarding Act 2024 (Tas) provides for Senior Practitioner approval in relation to restrictive practices, within an Act that also carries the CRPD-based principles (s 8(1)) and inclusion planning duties (ss 12 and 18).⁸

The comparison that matters

| Jurisdiction | Who authorises | Structure | |---|---|---| | SA | Authorised Program Officer; Senior Authorising Officer | Split by level of practice | | Vic | Authorised Program Officer and Senior Practitioner | Both required for specified practices | | Qld | Guardian appointed for a restrictive practice matter | Consent through guardianship; plan requirements in a separate Act | | ACT | Senior Practitioner, by registering the plan | Registration model; covers three service sectors | | Tas | Senior Practitioner | Approval within the 2024 rights statute |

Two observations. The office titles are not interchangeable: South Australia's Senior Authorising Officer, Victoria's and Tasmania's Senior Practitioner, and the ACT's Senior Practitioner do different jobs under differently worded provisions. And the unit of authorisation differs — a practice, a plan, or a decision made by a guardian on the person's behalf.

The purpose limits

Where a jurisdiction states purpose limits, they are the most useful provisions in the scheme, because they dispose of the common case without any inquiry into process.

South Australia's s 23M forbids use as a punishment or for the convenience of others, or to address inadequate staffing, equipment or facilities. The last of those is the one to notice: a restrictive practice used because the service is short-staffed is unlawful in South Australia whatever the paperwork says.

Queensland reaches a similar place differently, through the cumulative conditions in ss 150 and 167 on restraint in respite and community access services, and through the positive behaviour support plan content requirements in ss 50 and 51.

A working order

1. Identify the practice as regulated under s 6 of the Commonwealth Rules before anything else.
2. Name the Commonwealth requirement correctly: a condition of registration keyed to State authorisation, not a Commonwealth authorisation.
3. Go to the State or Territory scheme and identify the authorising officer and the unit of authorisation.
4. In Queensland, name both Acts.
5. Check the purpose limits before checking the process. A practice used for staffing convenience does not become lawful by being authorised.
6. Identify the enforcement route: registration conditions against the provider, through the NDIS Quality and Safeguards Commissioner.

Self-check

• Have I said that the Commonwealth conditions registration rather than authorising the practice?
• Have I named the correct authorising office, in the correct jurisdiction's words?
• Have I applied the purpose limits before the process requirements?
• Have I avoided asserting the position in a jurisdiction this article does not state?