Disability Inclusion Act 2018

This

Act may be cited as the Disability

Inclusion Act 2018.

This

Act will come into operation on a day to be fixed by proclamation.

Section

7(5) of the Acts

Interpretation Act 1915 does not apply to this Act or to a provision of this Act.

In this Act, unless the contrary intention appears—

barrier includes something that is—

physical, architectural, technological or attitudinal; or

based on information or communications; or

the result of a policy or practice;

central assessment unit means the central assessment unit established under the Child

Safety (Prohibited Persons) Act 2016;

Chief

Executive means the Chief Executive of the administrative unit of the Public

Service that is responsible for assisting a Minister in the administration of this Act;

community visitor means a community visitor appointed under Part 7;

disability, in relation to a person, includes long-term physical, psycho‑social, intellectual, cognitive, neurological or sensory impairment, or a combination of any of these impairments, which in interaction with various barriers may hinder the person's full and effective participation in society on an equal basis with others;

disability access and inclusion plan, in relation to a State authority, means the disability access and inclusion plan, as in force from time to time, prepared by the State authority under section 16;

National

Disability Insurance Scheme or NDIS means the National Disability Insurance Scheme under the National

Disability Insurance Scheme Act 2013 of the Commonwealth;

Registrar means the Registrar of the central assessment unit within the meaning of the Child

Safety (Prohibited Persons) Act 2016;

State authority means—

an administrative unit (within the meaning of the Public

Sector Act 2009);

or

an agency or instrumentality of the Crown, or agency or instrumentality of the Crown of a class, prescribed by the regulations for the purposes of this paragraph; or

a local council constituted under the Local

Government Act 1999;

or

any other person or body, or person or body of a class, declared by the regulations to be included in the ambit of this paragraph for the purposes of this Act, but does not include a person or body, or person or body of a class, declared by the regulations to be excluded from the ambit of this definition for the purposes of this Act;

State

Disability Inclusion Plan means the State Disability Inclusion Plan prepared under section 13, as in force from time to time;

Tribunal means the South Australian Civil and Administrative Tribunal under the South

Australian Civil and Administrative Tribunal Act 2013.

For the purposes of this Act, a reference to mainstream supports and services will be taken to be a reference to supports and services (however described) that are not NDIS‑funded supports and services.

Except where the contrary intention appears, the provisions of this Act are in addition to, and do not derogate from, any other Act or law.

This

Act binds the Crown in right of this jurisdiction and, in so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

The

Crown is liable for an offence against this Act.

If the Crown is guilty of an offence against this Act, the penalty that may be imposed on the Crown is the penalty that may be imposed on a body corporate.

Part 2 of this Act, the State Disability Inclusion Plan and disability access and inclusion plans are an expression of policy and do not in themselves—

create legally enforceable rights or entitlements; or

affect existing rights or liabilities (whether of a substantive, procedural or other nature).

It is the intention of the Parliament of South Australia that, to such an extent as may be reasonably practicable, the operation, administration and enforcement of this Act is to support and further the principles and purposes of the United

Nations Convention on the Rights of Persons with Disabilities, as well as any other relevant international human rights instruments affecting people with disability, as in force from time to time.

Without limiting any other provision of this Act, the Minister must, in accordance with any requirements set out in the regulations, seek the views of people with disability regarding—

the operation, administration and enforcement of this Act; and

furthering the objects of this Act (including by increasing the inclusion of

South Australians with disability in all areas of life in this

State).

Without limiting subsection (1), the Minister must establish a committee to advise and assist the

Minister in relation to the operation of this section.

The membership of a committee established by the Minister under this section will be determined by the Minister but should, as far as is reasonably practical, include a diverse range of people with lived experience of disability.

The procedures of a committee established by the Minister under this section will be—

as determined by the Minister; or

insofar as a procedure is not determined under paragraph (a)—as determined by the committee.

Without limiting section 7A(2), the Minister must establish a committee to—

advise the Minister, taking into account the principles of co‑design, in relation to the preparation and review of the State Disability

Inclusion Plan; and

perform such other functions as may be assigned to the committee under this or any other Act or by the Minister.

The membership of the committee will be determined by the Minister but should, as far as is reasonably practical, include a diverse range of people with lived experience of disability.

The procedures of the committee will be—

as determined by the Minister; or

insofar as a procedure is not determined under paragraph (a)—as determined by the committee.

The objects of this Act include—

acknowledging that people with disability, regardless of age, have the same human rights as other members of the community and that the State and the community have a responsibility to facilitate the exercise of those rights; and

promoting the independence and social and economic inclusion of people with disability, regardless of age; and

providing safeguards in relation to the delivery of all supports and services for people with disability, regardless of age; and

providing a framework to support a whole‑of‑Government approach to improving the inclusion of all South Australians with disability in all areas of life in this State; and

articulating and facilitating the roles of the State during and following the transition to the National Disability Insurance Scheme; and

making significant gains towards achieving an inclusive community where the principles outlined in the United

Nations Convention on the Rights of Persons with Disabilities underpin the development and delivery of services, especially by removing barriers so that people with disability, regardless of age, are able to access services and to participate in the community in the same way as other members of the community.

The following principles are to be observed in the operation, administration and enforcement of this Act:

people with disability have the same fundamental human rights and responsibilities, and the same right to autonomy, as other members of the community;

people with disability have an inherent right to respect for their worth and dignity as individuals;

people with disability have the right to participate in and contribute to social and economic life and should be supported to develop and enhance their ability to do so;

people with disability have the right to realise their physical, social, sexual, reproductive, emotional and intellectual capacities;

people with disability have the right to make decisions that affect their lives including decisions involving risk to the full extent of their capacity to do so;

in cases where a person with disability wants or requires assistance in making a decision, supported decision‑making is to be preferred over substituted decision‑making;

people with disability have the right to access information in a way that is appropriate for their disability and cultural background, to enable them to make informed choices;

people with disability have the right to respect for their cultural or linguistic diversity, age, gender, sexual orientation and religious beliefs;

people with disability have the same rights to privacy and confidentiality as other members of the community;

people with disability have the right to live free from neglect, abuse and exploitation;

people with disability have the right to be safe, and to feel safe, through the provision of appropriate safeguards, information, services and support, and through appropriate and accessible reporting mechanisms in cases of neglect, abuse or exploitation;

people with disability have the same rights as other members of the community to pursue complaints and access justice;

the crucial role of families, carers and other significant persons in the lives of people with disability, and the importance of preserving relationships with families, carers and other significant persons, is to be acknowledged and respected;

people with disability are free to associate with families, carers and other persons as they see fit, and should be supported where necessary to engage in family, social and friendship activities;

the needs of children with disability as they develop, and their rights as equal members of the community, are to be acknowledged and respected;

the changing abilities, strengths, goals and needs of people with disability as they age are to be acknowledged and respected;

people living with disability from a range of lived experiences, and their families and representatives, have a right to participate in the design and delivery of inclusive policies and programs including, as appropriate, through co‑design, consultation or other processes;

insofar as people with disability may not be able to find out about their rights, or may not be able to understand their rights, because of their disability, State and local government should take reasonable steps to assist them to learn about their rights and to develop ways in which they can, or their families or representatives can, report violations of those rights;

people with disability, and their families and representatives as appropriate, have a right to access and benefit from independent individual and systemic advocacy that assists in accessing services and addressing problems with services.

In addition to the principles set out in any other provision of this section, the following risks and principles are to be acknowledged and addressed in the operation, administration and enforcement of this Act as it relates to women with disability:

many women with disability face multiple disadvantages and are potentially more vulnerable to risk of abuse or exploitation;

the provision of mainstream supports and services to women with disability should recognise and seek to address such disadvantage and vulnerability, and should be informed by working in partnership with women with disability to enhance their lives.

In addition to the principles set out in any other provision of this section, the following risks and principles are to be acknowledged and addressed in the operation, administration and enforcement of this Act as it relates to children with disability:

children with disability have the right to a full life in conditions that ensure the child’s dignity, promote self-reliance and facilitate the child’s active and full participation in family, cultural and social life;

decisions affecting children with disability under this Act should be child‑centred;

without limiting paragraph (b), the responsibilities, rights and duties of a parent or other person legally responsible for a child with disability must also be considered in relation to giving appropriate direction and guidance for the child’s welfare;

the views of a child with disability will be listened to, and they should be given developmentally appropriate opportunities to participate in decisions that affect them;

children with disability are more vulnerable to risk of abuse or exploitation;

the developmental needs of children with disability must be taken into account, with particular focus on critical periods in their childhood and adolescence;

the provision of mainstream supports and services to children with disability should recognise and seek to address such risks and vulnerabilities, and should be informed by working in partnership with children with disability, and in consultation with their parents and other persons responsible for them, to enhance their lives.

In addition to the principles set out in any other provision of this section, the following risks and principles are to be acknowledged and addressed in the operation, administration and enforcement of this Act as it relates to Aboriginal and Torres Strait Islander people with disability:

Aboriginal and Torres Strait Islander people with disability have a right to respect and acknowledgment as the first peoples of Australia and for their unique history, culture and kinship relationships and connection to their traditional land and waters;

many

Aboriginal and Torres Strait Islander people with disability face multiple disadvantages;

the provision of mainstream supports and services to Aboriginal and

Torres Strait Islander people with disability should recognise and seek to address such disadvantage, and should be informed by working in partnership with Aboriginal and Torres Strait Islander people with disability to enhance their lives.

In addition to the principles set out in any other provision of this section, the following risks and principles are to be acknowledged and addressed in the operation, administration and enforcement of this Act as it relates to people with disability from culturally and linguistically diverse backgrounds:

cultural, language and other differences create barriers to providing supports and services to people with disability from culturally and linguistically diverse backgrounds;

the provision of mainstream supports and services to people with disability from culturally and linguistically diverse backgrounds should recognise and seek to address those barriers, and should be informed by working in partnership with people with disability from culturally and linguistically diverse backgrounds, and in consultation with their communities, to enhance their lives.

In addition to the principles set out in any other provision of this section, the following principles are to be acknowledged and addressed in the operation, administration and enforcement of this

Act as it relates to people with significant intellectual disability or who have high levels of vulnerability due to disability:

people with significant intellectual disability or who have high levels of vulnerability due to disability have a right to feel safe, to enjoy dignity in their lives, and to participate in the community in a meaningful way;

people with significant intellectual disability or who have high levels of vulnerability due to disability may face major barriers which they may not be able to understand and so need support from others to advocate on their behalf when seeking to remove, or deal with, those barriers.

In addition to the principles set out in any other provision of this section, the following risks and principles are to be acknowledged and addressed in the operation, administration and enforcement of this Act as it relates to people with disability who identify as

LGBTQIA+:

cultural and other differences create barriers to providing supports and services to people with disability who identify as LGBTQIA+;

the provision of mainstream supports and services to people with disability who identify as LGBTQIA+ should recognise and seek to address those barriers and should be informed by working in partnership with people with disability who identify as LGBTQIA+ and in consultation with their communities, to enhance their lives.

In addition to the principles set out in any other provision of this section, the following risks and principles are to be acknowledged and addressed in the operation, administration and enforcement of this Act as it relates to people with disability who live in regional communities:

distance from metropolitan regions reduces the availability of supports and services to people with disability who live in regional communities;

the provision of mainstream supports and services to people with disability who live in regional communities should recognise and seek to address this availability shortage, and should be informed by working in partnership with people with disability who live in regional communities and in consultation with their communities, to enhance their lives.

Each person or body engaged in the administration, operation or enforcement of this Act must exercise their powers and perform their functions so as to give effect to the principles set out in this section.

The functions of the Chief Executive under this Act include—

preparing and publishing guidelines for the purposes of this Act; and

preparing such reports as may be required under this Act or by the Minister;

and

monitoring the extent to which the objects and principles of this Act are being achieved; and

monitoring the extent to which the State Disability Inclusion Plan and the disability access and inclusion plans have been, or are being, implemented; and

monitoring the compliance of State authorities with the requirements under

Part 5; and

making recommendations to the Minister in relation to the compliance of

State authorities with the requirements under Part 5;

and

advising the Minister on any matters related to the operation, administration and enforcement of this Act; and

advising the Minister on systemic or emerging accessibility and inclusion issues; and

such other functions as may be assigned to the Chief Executive under this or any other Act or by the Minister.

The

Chief Executive has such powers as may be necessary or expedient for the performance of the Chief Executive's functions.