s 1Purposes

The main purposes of this Act are—

(a)

to provide a legislative scheme for persons with a disability which affirms and strengthens their rights and responsibilities and which is based on the recognition this requires support across the government sector and within the community; and

S. 1(b) amended by No. 9/2023 s. 3.

(b)

to provide a mechanism by which the rights of NDIS participants and DSOA clients are protected in relation to the use of restrictive practices and compulsory treatment.

s 2Commencement

(1)

Section 1 and this section come into operation on the day after the day on which this Act receives the Royal Assent.

(2)

Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(3)

If a provision referred to in subsection (2) does not come into operation before 1 July 2007, it comes into operation on that day.

s 3ADisability service provider taken to be providing residential services

A disability service provider is taken to be providing residential services in relation to accommodation that is provided by another person if the other person is providing the accommodation—

(a)

on behalf of the disability service provider; or

(b)

by arrangement with the disability service provider.

S. 3B inserted by No. 9/2023 s. 5.

s 3BNDIS provider taken to be providing a residential service in certain circumstances

(1)

This section applies if—

(a)

a registered NDIS provider is using supervised treatment; and

(b)

the accommodation provided to a person subject to a supervised treatment order obtained by the Authorised Program Officer for a registered NDIS provider is approved by the Senior Practitioner under section 187.

(2)

For the purposes of Division 6 of Part 3, Division 1 of Part 5 and Division 7 of Part 6—

(a)

the registered NDIS provider is taken to be a disability service provider; and

(b)

the accommodation provided by, on behalf of, or by arrangement with, the registered NDIS provider is taken to be a residential service; and

(c)

the person subject to the supervised treatment order is taken to be a resident.

Note

Part 8 imposes obligations on registered NDIS providers using compulsory treatment.

S. 3C inserted by No. 9/2023 s. 6.

s 3CPrimary service providers

(1)

Except as provided for under subsection (2), the primary service provider for a person is the disability service provider or registered NDIS provider providing the majority of support to the person within the person's accommodation.

(2)

If a person receives an equal amount of support within the person's accommodation from 2 or more disability service providers or registered NDIS providers, the Senior Practitioner may appoint the person's primary service provider from amongst those providers.

(3)

Despite subsection (1), in sections 186, 194A, 194B, 194C, 195, 196, 196A(1), 197 (except in relation to a hearing of an application under section 196A(4)), and 201, if a supervised treatment order has been made in respect of a person, the primary service provider for that person is the disability service provider or registered NDIS provider that appointed the Authorised Program Officer stated in the order as being responsible for the implementation of the order.

Part 2—Objectives and principles

s 4Objectives of Act

The objectives of this Act are to—

(a)

advance the inclusion and participation in the community of persons with a disability;

(b)

promote a strategic whole of government approach in supporting the needs and aspirations of persons with a disability;

(c)

facilitate the planning, funding and provision of services, programs and initiatives for persons with a disability;

(d)

promote and protect the rights of persons accessing disability services;

(e)

support the provision of high quality disability services;

(f)

make disability service providers accountable to persons accessing those disability services;

S. 4(g) amended by No. 19/2019 s. 20(1).

(g)

ensure the efficient and effective use of public funds in the provision of disability services;

S. 4(h) inserted by No. 19/2019 s. 20(2), amended by No. 9/2023 s. 7.

(h)

provide a process for authorising the proper use of restrictive practices on NDIS participants and DSOA clients;

S. 4(i) inserted by No. 19/2019 s. 20(2).

(i)

provide for appropriate compulsory treatment of NDIS participants.

s 5Principles

(1)

Persons with a disability have the same rights and responsibilities as other members of the community and should be empowered to exercise those rights and responsibilities.

(2)

Persons with a disability have the same right as other members of the community to—

S. 5(2)(a) amended by No. 19/2019 s. 21(1).

(a)

be given respect for their human worth and dignity as individuals;

(b)

live free from abuse, neglect or exploitation;

(c)

realise their individual capacity for physical, social, emotional and intellectual development;

(d)

exercise control over their own lives;

(e)

participate actively in the decisions that affect their lives and have information and be supported where necessary, to enable this to occur;

(f)

access information and communicate in a manner appropriate to their communication and cultural needs;

(g)

services which support their quality of life.

S. 5(3) amended by No. 33/2017 s. 5(1)(a).

(3)

Disability services and regulated disability services should—

(a)

advance the inclusion and participation in the community of persons with a disability with the aim of achieving their individual aspirations;

(b)

be flexible and responsive to the individual needs of persons with a disability;

(c)

maximise the choice and independence of persons with a disability;

(d)

be designed and provided in a manner that recognises different models of practice may be required to assist people with different types of disability and at different stages in their lives to realise their physical, social, emotional and intellectual capacities;

(e)

enable persons with a disability to access services as part of their local community and foster collaboration, coordination and integration with other local services;

S. 5(3)(f) amended by No. 9/2023 s. 8(1).

(f)

as far as possible be provided in a manner so that a person with a disability need not move out of the person's local community to access the disability services required;

(g)

be of high quality and provided by appropriately skilled and experienced staff who have opportunities for on-going learning and development;

S. 5(3)(h) amended by No. 10/2012 s. 14(2)(a).

(h)

consider and respect the role of families, carers and other persons who are significant in the life of the person with a disability;

S. 5(3)(i) amended by No. 10/2012 s. 14(2)(b).

(i)

acknowledge the important role families and carers have in supporting persons with a disability;

(j)

acknowledge the important role families have in assisting their family member to realise their individual physical, social, emotional and intellectual capacities;

S. 5(3)(ja) inserted by No. 10/2012 s. 14(2)(c).

(ja)

acknowledge the important role carers have in assisting the people they care for to realise their individual physical, social, emotional and intellectual capacities;

S. 5(3)(k) amended by No. 10/2012 s. 14(2)(d).

(k)

where possible strengthen and build capacity of families and carers who are supporting persons with a disability;

S. 5(3)(l) amended by No. 10/2012 s. 14(2)(e).

(l)

have regard for the needs of children with a disability and preserve and promote relationships between the child, their family and other persons (including carers) who are significant in the life of the child with a disability;

(m)

be provided in a manner that respects the privacy and dignity of persons accessing the disability services;

S. 5(3)(ma) inserted by No. 33/2017 s. 5(1)(b).

(ma)

be provided in a manner that promotes the upholding of the rights, dignity, wellbeing and safety of persons with a disability;

S. 5(3)(mb) inserted by No. 33/2017 s. 5(1)(b).

(mb)

be provided in a manner that does not—

(i)

tolerate abuse, neglect or exploitation of persons with a disability; or

(ii)

normalise abuse, neglect or exploitation of persons with a disability;

(n)

be provided in a way which reasonably balances safety with the right of persons with a disability to choose to participate in activities involving a degree of risk;

(o)

have regard for any potential increased disadvantage which may be experienced by persons with a disability as a result of their gender, language, cultural or indigenous background or location;

(p)

be designed and administered in a manner so as to ensure that persons with a disability have access to advocacy support where necessary to enable adequate decision making about the services they receive;

(q)

be designed and provided in a manner which continues to reflect the role of the Secretary in providing and funding planning for persons with a disability;

(r)

be accountable for the quality of those services and for the extent to which the rights of persons with a disability are promoted and protected in the provision of those services.

S. 5(3A) inserted by No. 19/2019 s. 21(2), amended by No. 9/2023 s. 8(2)(a).

(3A)

Restrictive practices used on NDIS participants and DSOA clients and the compulsory treatment of NDIS participants should be provided in a manner that—

S. 5(3A)(a) amended by No. 9/2023 s. 8(2)(b).

(a)

respects the privacy and dignity of those persons; and

S. 5(3A)(b) amended by No. 9/2023 s. 8(2)(b).

(b)

promotes the upholding of the rights, dignity, wellbeing and safety of those persons; and

(c)

does not—

S. 5(3A)(c)(i) amended by No. 9/2023 s. 8(2)(b).

(i)

tolerate abuse, neglect or exploitation of those persons; or

S. 5(3A)(c)(ii) amended by No. 9/2023 s. 8(2)(b).

(ii)

normalise abuse, neglect or exploitation of those persons.

S. 5(4) amended by Nos 19/2019 s. 21(3), 9/2023 s. 8(3).

(4)

If a restriction on the rights or opportunities of a person with a disability, an NDIS participant or a DSOA client is necessary, the option chosen should be the option which is the least restrictive of the person as is possible in the circumstances.

S. 5(5) amended by No. 33/2017 s. 5(2).

(5)

It is the intention of Parliament that the principles specified in this section should wherever possible be given effect to in the administration of this Act and the provision of disability services and regulated disability services.

S. 5(6) inserted by No. 19/2019 s. 21(4).

(6)

It is the intention of Parliament that the principles specified in subsections (3A) and (4) should wherever possible be given effect to in the administration of restrictive practices and compulsory treatment by registered NDIS providers.

s 6Persons with an intellectual disability

(1)

The following principles apply specifically in respect of persons with an intellectual disability—

(a)

persons with an intellectual disability have a capacity for physical, social, emotional and intellectual development;

(b)

persons with an intellectual disability have the right to opportunities to develop and maintain skills and to participate in activities that enable them to achieve valued roles in the community;

S. 6(1)(c)(d) repealed by No. 19/2019 s. 127.

* * * * *

(e)

services for persons with an intellectual disability should be designed and provided in a manner that ensures developmental opportunities exist to enable the realisation of their individual capacities;

(f)

services for persons with an intellectual disability should be designed and provided in a manner that ensures that a particular disability service provider cannot exercise control over all or most aspects of the life of a person with an intellectual disability.

(2)

The repeal of the Intellectually Disabled Persons' Services Act 1986 by this Act does not affect the responsibility of the Minister and the Secretary for the provision, management, development and planning of services for persons with an intellectual disability.

(3)

For the purposes of determining whether or not a person over the age of 5 years has an intellectual disability—

(a)

if a standardised measurement of intelligence is used to assess general intellectual functioning and it—

S. 6(3)(a)(i) amended by No. 9/2023 s. 9.

(i)

indicates that the person has an intelligence not higher than 2 standard deviations below the population average, then the person must be taken to have significant sub-average general intellectual functioning;

S. 6(3)(a)(ii) amended by No. 9/2023 s. 9.

(ii)

indicates that the person has an intelligence not lower than 2 standard deviations below the population average, then the person must be taken not to have significant sub-average general intellectual functioning;

(iii)

is inconclusive as to whether or not the person has an intelligence higher or lower than 2 standard deviations below the population average, then the Secretary may take into account other indicators of general intellectual functioning in determining whether or not the person has significant sub-average general intellectual functioning;

S. 6(3)(b) amended by No. 9/2023 s. 9.

(b)

if a standardised measurement of adaptive behaviour is used to assess adaptive behaviour and it indicates a score at or below the second percentile of people of the same age and cultural group, then the person must be taken to have significant deficits in adaptive behaviour.

(4)

In applying a standardised measurement of intelligence for the purposes of subsection (3)(a), the Secretary must consider the test result within the 95% confidence level as determined by the standard error of measurement of the test.

(5)

Nothing in subsection (3) requires the Secretary to use a standardised measurement in the assessment of intellectual disability.

S. 6(6) repealed by No. 37/2021 s. 354.

* * * * *

S. 6(7) repealed by No. 19/2019 s. 127.

* * * * *

(8)

Part 8 provides for persons with an intellectual disability who require compulsory treatment.

(9)

If the Secretary is satisfied that a person has an intellectual disability, the Secretary may for the purposes of any Act or regulation provide a statement that a person has an intellectual disability within the meaning of this Act.

s 7Provision of advice, notification or information under this Act

S. 7(1) amended by Nos 19/2019 s. 22(1), 9/2023 s. 10(1).

(1)

The contents of any advice, notice or information given or provided to a person with a disability, an NDIS participant or a DSOA client under this Act must be explained by the person giving the advice, notice or information to the maximum extent possible to the person in the language, mode of communication and terms which that person is most likely to understand.

(2)

An explanation given under subsection (1) must where reasonable be given both orally and in writing.

S. 7(3) amended by Nos 19/2019 s. 22(2), 9/2023 s. 10(2).

(3)

If a person with a disability, an NDIS participant or a DSOA client appears to be incapable of reading and understanding information provided under this Act, a disability service provider or an NDIS provider, as the case requires, must use reasonable endeavours to convey the information to the person in the language, mode of communication or terms which the person is most likely to understand.

S. 7(4) amended by No. 19/2019 s. 22(3)(a).

(4)

For the purposes of subsection (3), the disability service provider or NDIS provider, as the case requires, may give a copy of the advice, notice or information—

S. 7(4)(a) amended by Nos 10/2012 s. 14(3), 19/2019 s. 22(3)(b), 9/2023 s. 10(3)(a).

(a)

to a family member, carer, guardian, advocate or other person chosen by the person with a disability, NDIS participant or DSOA client; or

S. 7(4)(b) amended by No. 19/2019 s. 22(3)(c)(d).

(b)

in the case of a person with a disability, if no person is chosen under paragraph (a), to a person who the disability service provider considers can assist the person with a disability and is not employed by, or a representative of, the disability service provider; or

S. 7(4)(c) inserted by No. 19/2019 s. 22(3)(e), amended by No. 9/2023 s. 10(3)(b).

(c)

in the case of an NDIS participant or a DSOA client, if no person is chosen under paragraph (a), to a person who the NDIS provider considers can assist the NDIS participant or the DSOA client and is not employed by, or a representative of, the NDIS provider.

Part 3—Administration

Division 1—The Secretary

s 8Role and functions of the Secretary

(1)

For the purposes of this Act, the role of the Secretary is to—

(a)

plan, develop, provide and fund or purchase comprehensive services, programs and initiatives for persons with a disability;

(b)

provide and fund programs and initiatives that facilitate persons with a disability exercising their rights and meeting their responsibilities in the community;

S. 8(1)(c) amended by No. 9/2023 s. 11(1)(a).

(c)

collect and analyse data for the purpose of enabling the Secretary to achieve the objectives and perform the functions specified in this Act, including complying with reporting requirements for the purposes of this Act;

S. 8(1)(ca) inserted by No. 19/2019 s. 23(1), amended by No. 34/2020 s. 194, repealed by No. 9/2023 s. 11(1)(b).

* * * * *

(d)

subject to the general direction and control of the Minister, administer this Act in accordance with the objectives and principles specified in this Act.

(2)

Without limiting the generality of subsection (1), the Secretary has the following functions—

(a)

to promote awareness and understanding of disability within the community;

(b)

to advance the inclusion and participation of persons with a disability in the community;

S. 8(2)(c) amended by No. 9/2023 s. 98(a).

(c)

to develop policies for disability services provided by the Secretary, contracted service providers and funded service providers;

S. 8(2)(d) amended by No. 9/2023 s. 98(a).

(d)

to develop and publish criteria to enable priority of access to disability services provided by the Secretary, contracted service providers and funded service providers to be determined in a fair manner;

S. 8(2)(e) amended by No. 9/2023 s. 98(b).

(e)

to determine priorities in relation to policy development, resource allocation and the provision of disability services provided by the Secretary, contracted service providers and funded service providers;

S. 8(2)(f) amended by No. 9/2023 s. 98(c).

(f)

to monitor, evaluate and review disability services provided by the Secretary, contracted service providers and funded service providers;

S. 8(2)(g) amended by No. 9/2023 s. 98(c).

(g)

to promote the quality of disability services provided by the Secretary, contracted service providers and funded service providers;

(h)

to promote the establishment of appropriate training courses and the availability of on‑going training for persons employed in the provision of disability services;

(i)

to foster collaboration, coordination and integration in the provision to persons with a disability of disability services with other local services;

S. 8(2)(j) amended by Nos 19/2019 s. 23(2), 9/2023 s. 11(2).

(j)

to make recommendations and reports to the Minister with respect to matters relating to persons with a disability, NDIS participants and DSOA clients and to advise the Minister on the operation of this Act.

s 9Power of Secretary to provide funds

(1)

Subject to the approval of the Minister and having regard to the objectives and principles specified in this Act, the Secretary may allocate funds out of money available for the purpose to persons including municipal councils and non-government organisations.

(2)

The Secretary may allocate funds under subsection (1) to be used for the purposes and subject to the conditions considered by the Secretary to be appropriate.

(3)

Funds under subsection (1) may be provided to a person who has entered into a contract with the Secretary whether under section 10 or under any other Act provided that the contract requires that the funds provided under subsection (1) must be used for the purposes specified under subsection (2).

s 10Power of Secretary to enter into contracts

S. 10(1) substituted by No. 29/2010 s. 8.

(1)

Without limiting the powers conferred on the Secretary whether under this or any other Act, the Secretary may, on behalf of the Crown, enter into a contract with a person for the provision of goods or services—

(a)

to persons with a disability; or

(b)

that relate to the administration of this Act.

(2)

A contract under this section—

S. 10(2)(a) amended by No. 9/2023 s. 12.

(a)

remains in force for the period specified in the contract;

(b)

may contain any conditions, requirements or other provisions that are not inconsistent with this Act.

S. 10A inserted by No. 29/2010 s. 9.

Disability Act 2006

About this Act