Restrictive practices authorisation in Victoria 

This article states the law of Victoria. Like South Australia, Victoria supplies the State authorisation process that the Commonwealth NDIS rules require but do not provide. Unlike South Australia, it does so in two steps that must both be satisfied: an authorisation by an Authorised Program Officer, and, for the most intrusive forms, a separate approval by the Senior Practitioner¹. The prior question is which form of practice is proposed, because that decides whether the second step is engaged.

The prohibition, and its two conditions

Section 135 states the rule as a prohibition. Except as provided in ss 137 and 145, a disability service provider or a registered NDIS provider must not use a regulated restrictive practice on a person to whom the Part applies unless an authorisation under s 136 is in force and the further conditions in the section are met.

Those conditions are where the second step lives. Where the practice takes the form of seclusion, physical restraint or mechanical restraint, its use must have been approved by the Senior Practitioner. The same applies where the form of practice, or its use on a specified person or class of persons, has been specified as requiring approval in a direction given by the Senior Practitioner. Section 135 also requires that specified matters in s 136(1) be satisfied.

An answer that establishes an authorisation and stops there has done half the analysis. For seclusion or restraint, authorisation without approval does not make the use lawful under the Part.

Step one: authorisation by the Authorised Program Officer

Section 136(1) empowers the Authorised Program Officer to authorise use if satisfied of several things.

First, the proposed use must be "necessary to prevent the person from causing physical harm to themselves or another person" (s 136(1)(a)). That is a narrow gateway: the harm contemplated is physical harm to a person, so property damage or disruption, without more, does not satisfy it.

Second, the use and form of the practice must be the option "which is the least restrictive of the person as is possible in the circumstances"; must be included in, and used in accordance with, the person's behaviour support plan or NDIS behaviour support plan; and must not be applied for longer than the period during which it is necessary under paragraph (a) (s 136(1)(b)). The duration limit is expressed by reference to the necessity ground, so necessity governs both whether the practice may be used and for how long.

Third, s 136(1)(c) addresses the interface with the Commonwealth scheme. Where the person receives disability services from a disability service provider and does not have an NDIS behaviour support plan compliant with the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), their behaviour support plan must comply with this Part. The Victorian requirement therefore fills the gap where the Commonwealth plan requirements do not apply.

The Authorised Program Officer is not a free-standing office: s 132ZJ requires a disability service provider or registered NDIS provider to seek the Senior Practitioner's approval for the appointment. The Senior Practitioner thus controls who may perform step one as well as performing step two.

Step two: approval by the Senior Practitioner

Section 143(1) empowers the Senior Practitioner, if satisfied of the matters in s 143(2), to approve a provider to use a regulated restrictive practice in the form of seclusion, physical restraint or mechanical restraint; a form specified as requiring approval in a direction; or a practice on a specified person or class of persons so specified.

The first of the s 143(2) matters mirrors the authorisation gateway: the proposed use must be necessary to prevent the person from causing physical harm to themselves or to another person. The same substantive threshold is therefore applied twice, by two different decision-makers, which is the design of the scheme rather than duplication.

The Senior Practitioner's wider role sits in Division 5 of Part 2, which creates the office (s 23), confers its functions (s 24) and gives it special powers (s 27). Section 132ZL requires the Senior Practitioner to notify the Social Services Regulator or the NDIS Commissioner in specified circumstances, which is how the State scheme reports into the Commonwealth one.

Emergencies, exceptions and reporting

Sections 137 and 145 carve out use in certain circumstances and use in emergencies, and ss 147 and 148 require reporting of emergency use and of use generally by disability service providers. The structure is therefore authorise, approve, use, report — with the emergency route bypassing the front end but not the reporting obligation.

Three jurisdictions, three models

Set against the other two overlay sets, the divergence is stark:

• Victoria requires authorisation by an Authorised Program Officer and, for seclusion and restraint, approval by the Senior Practitioner, who also approves who may be an Authorised Program Officer.
• South Australia splits practices into level 1, which an Authorised Program Officer may authorise, and level 2, which only the Senior Authorising Officer may authorise, with detention excluded from level 1 by definition.
• New South Wales legislates none of this in its Disability Inclusion Act 2014 (NSW), which contains no restrictive practices provisions at all.

The Commonwealth rules ask the same question in every jurisdiction — was the use authorised in accordance with the State or Territory's authorisation process — and receive three quite different answers.

Applying this in a problem question

1. Identify the form of the practice first, because seclusion, physical restraint and mechanical restraint engage the second step.
2. Test the s 136(1)(a) gateway strictly: necessity to prevent physical harm to a person, not property damage or disruption.
3. Work through each limb of s 136(1)(b), including the duration limit tied to the necessity ground.
4. Where the person has no compliant NDIS behaviour support plan, apply s 136(1)(c).
5. For seclusion or restraint, require Senior Practitioner approval under s 143 in addition to the authorisation, and apply the s 143(2) matters.
6. Where the use was an emergency, identify the exception relied on and address the reporting obligation separately.

Self-check

• Have I identified the form of practice before asking who may authorise it?
• Have I required both authorisation and approval where the form demands it?
• Have I applied necessity to duration as well as to use?
• Have I avoided assuming another jurisdiction's model applies in Victoria?