Disability Rights, Inclusion and Safeguarding Act 2024

Disability Rights, Inclusion and Safeguarding Act 2024

This Act may be cited as the Disability Rights, Inclusion and Safeguarding Act 2024.

This Act commences on a day to be proclaimed.

The objects of this Act are to advance and safeguard the rights of all people with disability and to advance the full and effective inclusion of all people with disability, including by –

recognising the responsibility of the State and the community to support people with disability in exercising their human rights; and supporting and effecting – the human rights of people with disability under international treaties including, but not limited to, the United Nations Convention on the Rights of Persons with Disabilities; and Australia’s Disability Strategy; and establishing a framework for a whole-of-government approach to accountability and transparency in relation to disability inclusion; and regulating the use of restrictive practices by disability services providers; and establishing the positions of Disability Commissioner and Senior Practitioner; and establishing the Disability Inclusion Advisory Council; and providing for a community visitor scheme; and enabling the provision of funding to support the above objects.

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

In this Act, unless the contrary intention appears –

accessible format means a format that presents a document or other communication in a manner that enables the document or communication to be accessible by people with disability;

appointed program officer, for a disability services provider, means a person whose appointment as an appointed program officer for that provider is approved by the Senior Practitioner under section 62;

Australia’s Disability Strategy means the document, Australia’s Disability Strategy 2021-2031, published by the Commonwealth of Australia (Department of Social Services) in 2021, as amended from time to time;

authorised officer means a person authorised to enter premises under section 70;

behaviour support plan means a plan prepared in consultation with a person with disability that specifies the evidence-informed strategies to be used in supporting the person's behaviour, including proactive strategies to build on the person's strengths and increase their life skills;

behaviour support practitioner means a person who is an NDIS behaviour support practitioner within the meaning of the NDIS Rules;

carer has the same meaning as in the Carer Recognition Act 2023;

Commissioner means a person appointed as the Disability Commissioner under section 27;

community visitor means a person appointed as a community visitor under the regulations;

defined entity– see section 6;

disability, in relation to a person, includes long-term physical, mental, cognitive, intellectual or sensory 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 inclusion means actions taken to achieve equity between persons with disability and other members of the Tasmanian community;

disability inclusion action plan, in respect of an entity, means the disability inclusion action plan for that entity prepared under section 12;

Disability Inclusion Advisory Council means the Disability Inclusion Advisory Council established by section 23;

disability service means a service specifically for the support of people with disability including, but not limited to, supports and services provided to a person with disability under the NDIS;

disability services provider– see section 7;

disability support grant means a grant of financial assistance under section 69;

employee, in relation to a disability services provider, means – an employee or agent of the provider; or a person providing services voluntarily on behalf of the provider;

exempt information means information of a kind prescribed to be exempt information;

governing body, in relation to a defined entity, means a board of directors, board of trustees, committee of management, council or other governing authority of the defined entity;

grant recipient means – a person or organisation that is receiving a disability support grant; or a participant, within the meaning of the NDIS Act, who receives funds under the NDIS Act, however managed;

human rights includes, but is not limited to, rights and freedoms under – the United Nations Convention on the Rights of Persons with Disabilities; and the International Covenant on Civil and Political Rights, Australian Treaty Series 1980 No. 23; and the International Covenant on Economic, Social and Cultural Rights, Australian Treaty Series 1976 No. 5; and the United Nations Convention on the Rights of the Child, Australian Treaty Series 1991 No. 4; and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Australian Treaty Series 1989 No. 21;

independent person means a person – who volunteers to assist a person with disability to understand – the use of restrictive practices on the person with disability; and the rights of the person with disability regarding the review of decisions in relation to the imposition of restrictive practices; and who is appointed as an independent person for that person under section 66;

intersectionality means the multi-layered experiences of people with disability in relation to the personal attributes of a person or group of persons that create interconnected and interdependent systems of disadvantage or discrimination;

NDIS means the National Disability Insurance Scheme within the meaning of the NDIS Act;

NDIS Act means the National Disability Insurance Scheme Act 2013 of the Commonwealth;

NDIS Commissioner means the Commissioner of the NDIS Quality and Safeguards Commission referred to in section 181C of the NDIS Act;

NDIS provider has the same meaning as in the NDIS Act and includes registered NDIS providers, within the meaning of that Act, and NDIS providers that are not registered;

NDIS Quality and Safeguards Commission means the NDIS Quality and Safeguards Commission established by section 181A of the NDIS Act;

NDIS Rules means – the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 of the Commonwealth, as in force from time to time, under the NDIS Act; or if the rules referred to in paragraph (a) are revoked or replaced by rules made under the NDIS Act dealing with restrictive practices, those rules, as in force from time to time;

personal attribute means an attribute specified in section 16 of the Anti-Discrimination Act 1998;

person-centred means services and supports that are centred on an individual and their strengths, needs, interests and goals;

principles– see section 8;

private grant recipient means a person who is receiving a disability support grant under section 69(3)(a);

progress report means a report prepared by a defined entity under section 14(1);

regulations means the regulations made under this Act;

restrictive practice means a practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability that is – a regulated restrictive practice within the meaning of the NDIS Rules; or a practice or intervention determined by the Senior Practitioner under section 45 to be a restrictive practice;

Secretary means the Secretary of the Department;

Senior Practitioner means the Senior Practitioner appointed under section 43;

Tasmanian Disability Inclusion Plan means the Tasmanian Disability Inclusion Plan prepared under section 9, as in force from time to time;

trauma-informed approach means an approach that acknowledges the possibility of trauma for any person and that recognises the signs and symptoms of trauma, enables pathways for recovery and actively seeks to avoid re-traumatisation;

Tribunal means the Tasmanian Civil and Administrative Tribunal established by the Tasmanian Civil and Administrative Tribunal Act 2020;

United Nations Convention on the Rights of Persons with Disabilities means the United Nations Convention on the Rights of Persons with Disabilities, done at New York on 13 December 2006, as in force for Australia;

universal design means the design of a building, facility, product or environment so that it is accessible to all members of the Tasmanian community to the greatest extent possible without the need for adaptation or specialised design;

universal service means a service or support provided to the Tasmanian community by a defined entity, other than a service or support that is funded or provided under the NDIS.

For the purposes of this Act, an entity is a defined entity if that entity is – an Agency, within the meaning of the State Service Act 2000; or an agent or instrumentality of the Crown, if that agent or instrumentality administers funding or services to the disability sector; or a Government Business Enterprise, within the meaning of the Government Business Enterprises Act 1995; or any other person or body, or class of persons or bodies, prescribed as a defined entity.

For the purposes of this Act, defined entity does not include a person or body, or class of persons or bodies, prescribed as being excluded from the definition of defined entity.

For the purposes of this Act, disability services provider means – a person or organisation that receives funding under the NDIS or this Act to provide a service specifically for the support of people with disability; or a person or body, or class of persons or bodies, prescribed as a disability services provider.

For the purposes of this Act, disability services provider does not include the following:a person with disability who is in receipt of a disability support grant for the purpose of obtaining care, support or assistance; a relative or friend of a person with disability who provides disability supports to that person; a person or body, or class of persons or bodies, prescribed as being excluded from the definition of disability services provider.

The following principles, which reflect the United Nations Convention on the Rights of Persons with Disabilities, are to be observed in the operation, administration and enforcement of this Act:people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development; people with disability have the right to participate in, and contribute to, social and economic life on an equal basis with others, and have the right to be supported to enjoy this right; people with disability and their families and carers have the right to certainty that people with disability will receive the care and support that they need over their lifetime; people with disability have the right to be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports; people with disability have the same right as other members of Australian society to be respected for their worth and dignity and to live free from violence, abuse, neglect, coercion and exploitation; people with disability have the same right as other members of Australian society to pursue any grievance; people with disability have the same right as other members of Australian society to be able to make their own decisions, including the right to exercise choice and control in decisions that affect their lives, to the full extent of their capacity; people with disability have the right to be supported in all their dealings and communications so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs; people with disability who require support in decision-making are to be provided with access to the support necessary to enable those persons – to participate in those decisions; and to express their will and preferences in relation to those decisions; and to develop their decision-making ability; people with disability have the right to receive innovative, high-quality, best-practice, contemporary and effective supports that are person-centred and trauma-informed; people with disability have the right to have their privacy and dignity respected; the role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected; people with disability have the right to access disability advocacy which plays an essential role in fostering the full and equal enjoyment of human rights, enabling community participation and the inclusion of people with disability by ensuring that their rights are maintained, promoted and valued; the voices of people with disability are central to the development of practical, effective and targeted services and programs; the voices of families, friends and carers of people with disability are to be considered in the development of practical, effective and targeted services and programs; consultation with people with disability should be – designed and delivered in collaboration with people with disability; and adaptable to provide for the range of different ways that people with disability may use to participate; positive personal and social development of people with disability, including children and young people, is to be promoted.

In addition to any other principles set out in this section, if this Act requires or permits an act or thing to be done by or in relation to a person with disability by another person, the act or thing is to be done, so far as is practicable, in accordance with the following principles:people with disability have the right to make their own decisions and to access support to enable them to make decisions; people with disability are to be encouraged to engage in the life of the community; people with disability have the right to have their own individual freedom of expression, self-determination and decision-making respected; the intersectionality of an individual’s circumstances are to be considered in the development of practical, effective and targeted services and programs; the supportive relationships, friendships and connections, with others, of people with disability are to be recognised; restrictive practices should only be used in very limited and specific circumstances as a last resort and utilising the least restrictive practice and for the shortest period of time possible in the circumstances; restrictive practices should only be used where they are proportionate and justified in order to protect the rights or safety of the person with disability or others.

In addition to any other principles set out in this section, if this Act requires or permits an act or thing to be done by or in relation to a child with disability by another person, the act or thing is to be done, so far as is practicable, in accordance with the following principles:the evolving capacities of the child are to be respected; the right of the child to preserve the child’s identity is to be respected; the wishes of the child, however expressed, are to be taken into account; the child is to be provided with disability and age-appropriate support in decision-making; regard is to be had, and appropriate weight given to, the views of the child; the best interests of the child are paramount, and full consideration must be given to the need to – protect the child from harm; and promote the child’s development; and strengthen, preserve and promote positive relationships between the child and the child’s parents, family members and other people who are significant in the life of the child.

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 Minister must ensure that a Tasmanian Disability Inclusion Plan is prepared – within 12 months of the commencement of this Act; and on a 4-yearly basis thereafter.

A Tasmanian Disability Inclusion Plan must – set out whole-of-government policies and measures for achieving the objects of this Act and advancing the principles; and provide for collaboration and coordination among defined entities and other entities in the provision of universal services to people with disability.

In preparing a Tasmanian Disability Inclusion Plan, the Minister – must have regard to the objects of this Act and the principles; and must consider the varied needs and experiences of people with disability and the strategies that may be required in response to those needs and experiences; and must consult with, in accordance with any prescribed requirements – the Disability Inclusion Advisory Council; and the Commissioner; and people with disability; and disability advocacy organisations, disability peak bodies and disability representative organisations; and defined entities; and the public; and may consult with any other person or body that the Minister considers appropriate.

The Minister must cause a copy of a Tasmanian Disability Inclusion Plan to be published on a website operated by, or on behalf of, the Department – as soon as reasonably practicable after it is prepared; and in accessible formats.

The Minister is to cause a copy of a Tasmanian Disability Inclusion Plan to be tabled in each House of Parliament within 10 sitting-days of that House after the publication of that plan under subsection (4).

The Minister may, at any time – amend a Tasmanian Disability Inclusion Plan; or revoke and substitute a Tasmanian Disability Inclusion Plan.

Section 9(2), (3), (4) and (5) apply, with any necessary modification, to the amendment or revocation and substitution of a Tasmanian Disability Inclusion Plan in the same way as they apply to the preparation of a Tasmanian Disability Inclusion Plan.

The Minister must prepare and publish a Tasmanian Disability Inclusion Plan Progress Report – within 12 months after the publication of a Tasmanian Disability Inclusion Plan; and on a yearly basis thereafter.

A Tasmanian Disability Inclusion Plan Progress Report under subsection (1) must include an assessment of progress in the previous 12 months in relation to the implementation of the Tasmanian Disability Inclusion Plan.

For the purposes of subsection (1), the Minister must cause a copy of a Tasmanian Disability Inclusion Plan Progress Report to be published on a website operated by, or on behalf of, the Department – as soon as reasonably practicable after it is prepared; and in accessible formats.

The Minister is to cause a copy of a Tasmanian Disability Inclusion Plan Progress Report to be tabled in each House of Parliament within 10 sitting-days of that House after publication of the report under this section.