Inclusive SA

Review of the Disability Inclusion Act 2018 – South Australia

Issues for discussion

The Disability Inclusion Act 2018 (SA) specifies that the Minister for Human Services must:

  • have the Act reviewed before the Act's fourth anniversary
  • receive a report on the review.

The Act has been independently reviewed and the following issues are provided for discussion. We invite your feedback.

Summary of the review

How to give feedback

The deadline for feedback is 10 May 2022.

Alternative formats

The discussion paper is available to download in PDF, Word and Easy Read formats.

Acknowledgement of Country

Acknowledgement of Country

The Government of South Australia acknowledges and respects Aboriginal peoples as the state's first peoples and nations and recognises them as traditional owners and occupants of land and waters in South Australia.

Further, we acknowledge that the spiritual, social, cultural and economic practices of Aboriginal peoples come from their traditional lands and waters, that they maintain their cultural and heritage beliefs, languages and laws which are of ongoing importance, and that they have made and continue to make a unique and irreplaceable contribution to the state.

We acknowledge that Aboriginal peoples have endured past injustice and dispossession of their traditional lands and waters.

Summary of the Review

Summary of the Review

Review of laws that aim to help people with disability to have a better chance to live well in our community

There are many ways to achieve something in our community. One way is for the government to make a law. South Australia has a law intended to help people with disability get involved in the community and have easier lives. It is called the Disability Inclusion Act.

This law says that government departments and local councils should do things to help people with disability to have the support and services that everyone else enjoys, to be able to live as independently as possible, and to be involved in decisions that affect them personally.

If you are living with disability or know someone with disability, it would be great if you could think about some things that we should know about.

For example, we would like to know whether you feel you have the chance to do the same things other people do, especially when you are out in the community.

We would like to know how easy it is for you to move around the community and if you think it should be easier. It is important that no-one is prevented from making the most of their abilities or from doing what they want to do.

We also want to know if you feel that you can make choices about your life.

All these things are being considered by an independent reviewer. The reviewer will provide advice to the government about how well Disability Inclusion Act and the actions of local councils are helping people with disability to live well.

Share your views

You can share your views by responding to questions in the Review of the Disability Inclusion Act 2018 (South Australia) – Discussion Paper.

Submission deadline

10 May 2022

Submit your responses either through the online survey, email or via post.

1 Introduction and terms of reference

1 Introduction and terms of reference

1.1 Introduction

The Disability Inclusion Act 2018 (the Act) is an important part of South Australia’s legislative scheme that is designed to promote the full inclusion within the South Australian community of people with disability, to promote, support and enhance the ability of people with disability to achieve their full potential as equal citizens, and generally to promote the wellbeing of people with disability through social inclusion.

The Act is intended to promote the recognition of essential human rights in South Australia in line with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and interacts with national strategies such as Australia’s Disability Strategy 2021 – 2031 and other schemes such as the National Disability Insurance Scheme (NDIS).

As stated in the Second Reading speech at the time of the introduction of the relevant legislation to the South Australian Parliament, the Act is underpinned by a range of rights‑based principles that reflect the tone of the UNCRPD and the predecessor document to Australia’s Disability Strategy (the National Disability Strategy 2010–2020). These principles are based on a recognition that while people with disability have the same fundamental human rights as others, they often experience difficulty exercising their rights because of the inaccessibility of things such as built form, cultural approaches or a range of other limitations. Through these principles, the Act gives visibility to the issues faced by people with disability. (See The Hon. J.M.A. Lensink (Minister for Human Services), Legislative Council debates, 9 May 2018 at page 102.)

Section 32 of the Act requires the Minister to whom the administration of the Act is vested to cause a review of the operation of the Act to be conducted and a report on the review to be prepared and submitted to the Minister before the fourth anniversary of the commencement of the Act. The person appointed to conduct the review is Richard Dennis AM PSM (the reviewer). Richard Dennis was South Australian Parliamentary Counsel from 2006–2015.

The Act commenced on 1 July 2018, and so the Minister for Human Services has initiated this review so that the results of the review can be reported to the Parliament and the community in 2022, as required by section 32.

This is important legislation and so the important opportunities that the review presents should not be underestimated.

1.2 Terms of reference

Section 32 of the Act provides that the review will be of “the operation of this Act”.

In addition to broadly considering the operation of the Act, the review will consider:

  1. how well is the operation of the Act achieving or supporting the objects of the Act;
  2. the extent to which the principles set out in section 9 of the Act are being recognised and applied in the operation, administration and enforcement of the Act;
  3. initiatives that could be adopted to enhance the alignment of the Act with Australia’s Disability Strategy;
  4. the work of the department in fulfilling various functions under section 10;
  5. consideration of how effective the State Disability Inclusion Plan, and the disability access and inclusion plans, have been to date in supporting the objects of the Act, recognising that there is a separate scheme for the review of these plans under sections 15 and 18 of the Act;
  6. any changes that should be considered for Part 5A of the Act. In considering the effectiveness of the Act, the reviewer considers that there is some benefit in aligning aspects of the review with the themes and priorities that have been adopted by Inclusion SA on the basis of what people with disabilities have previously identified as being important to them. It would therefore be useful to receive specific comment or information about the extent to which the Act has assisted in promoting the following themes and priorities associated with disability inclusion in South Australia:
    • Inclusive communities for all
    • Leadership and collaboration
    • Accessible communities
    • Learning and employment

1.3 Date for responses

The reviewer would appreciate your views on the matters raised by this paper.

Submission deadline

10 May 2022.

Responses and submissions for the purposes of the review should be:

2 The legislative scheme – key concepts, objects and principles

2 The legislative scheme – key concepts, objects and principles

2.1 Introduction

A piece of legislation usually begins with a number of provisions that are relevant to the operation of the Act, set out key concepts and principles, or establish the objects of the legislation.

2.2 Definitions and key concepts

Definition of “disability”

The definition of disability is fundamental to the scheme of the Act and it is important that it provides an appropriate description of the concept of disability.

Currently, the definition is as follows:

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.

Questions:

  1. Is this definition still appropriate?
  2. Have there been any problems with the application of this definition?
  3. Do you consider that there are other concepts under the Act that should be defined – especially to add more clarity to a particular provision found in the Act?
  4. Are there any other key concepts that should be included at the beginning of the Act that may assist with its interpretation or application?

2.3  Key instruments

Supporting the UNCRPD

Section 7 of the Act makes specific reference to the United Nations Convention on the Rights of Persons with Disability, and provides that, to such an extent as may be reasonably practicable, the operation, administration and enforcement of the Act is to support and further the principles and purposes of this convention.

The principles of this convention are:

  1. respect for human dignity, individual autonomy, including the freedom to make one’s own choices, and independence of persons;
  2. non-discrimination;
  3. full and effective participation and inclusion in society;
  4. respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
  5. equality of opportunity;
  6. accessibility;
  7. equality between men and women;
  8. respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

Questions:

  1. Do you consider that the Act is being administered in a way that supports the convention and these principles?
  2. Is there evidence that State authorities are considering this section of the Act in the development and implementation of strategies, policies and programs, in the delivery of services, and in the performance of other activities? “State authority” is defined to mean: (a) a State Government department; (b) State Government agencies and instrumentalities specified by the Minister for Human Services from time to time under the regulations; (c) local government councils; and (d) other persons or bodies specified by the Minister for Human Services from time to time under the regulations.
  3. Do you know of any other instruments or policies that could provide helpful points of reference in relation to the operation of the Act? If so, please identify them and explain why you think that they would enhance the operation of the Act.
  4. An important requirement of the convention is to raise awareness about issues associated with people with disabilities, and to foster respect for the rights and dignity of persons with disabilities (See article 8 of the convention). Do you have a view about the extent to which this has increased since the commencement of the Act?

Australia’s Disability Strategy 2021–2031

Australia’s Disability Strategy 2021–2031 has a vision statement that is consistent with the objects of the South Australian Act. Furthermore, as in the Act, the Strategy refers to the Convention and the desire to protect, promote and realise the human rights of people with disability.

The Strategy refers to the social model of disability and recognises that attitudes, practices and structures can be disabling and act as barriers that prevent people from fulfilling their potential and exercising their rights as equal members of the community. It notes that people with disability include, but are not restricted to, those who have long-term physical, mental, cognitive, intellectual or sensory impairments. People with disability have specific needs, priorities and perspectives based on their individual identities including their gender, age, sexuality, race and cultural background, and can face additional barriers and inequalities. (See Australia’s Disability Strategy 2021–2031 at p 5.)

The Strategy sets out seven Outcome Areas, being:

  • Employment and Financial Security
  • Inclusive Homes and Communities
  • Safety, Rights and Justice
  • Personal and Community Support
  • Education and Learning
  • Health and Wellbeing
  • Community Attitudes

A set of priorities sits under each Outcome Area.

The Strategy makes the point that the Outcome Areas are interrelated and necessarily connected. (Australia’s Disability Strategy 2021–2031 at p 6.)

An important part of the Strategy relates to the identification of the roles and responsibilities of each level of government, along with business, the community and the non-government sector. Reference is made to how clarifying these roles, especially with regards to the responsibilities of governments, supports the involvement of parties in designing and implementing inclusive policies and programs for people with disability. (Australia’s Disability Strategy 2021–2031 at p 37.) The Strategy recognises that in many cases more than one level of government has some responsibility for a service or system.

Questions:

  1. The Act relates to the activities of the State and local governments and cannot affect the powers and responsibilities of the Commonwealth Government. However, there may be areas where it would be good for the State to improve coordination of activities with the Commonwealth to achieve shared outcomes. Do you think that this is the case? If so, where could the State better co-ordinate activities with the Commonwealth?
  2. Do you think that there is sufficient clarity in relation to the role of the State government and its instrumentalities in supporting access and inclusion for people with disability and enhancing their interests?
  3. Do you think that there is sufficient clarity in relation to the role of local councils in supporting access and inclusion for people with disability and enhancing their interests?

2.4 Objects

The Act has an express set of objects (Section 8 sets out the objects of the Act. They also appear at the end of this document.) These objects may be summarised as follows:

  1. to acknowledge that people with disability 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;
  2. to promote the independence and social and economic inclusion of people with disability;
  3. to provide safeguards in relation to the delivery of supports and services for people with disability;
  4. to provide a framework to support a whole of Government approach to improving inclusion in all areas of life in the State;
  5. to facilitate the role of the State following the transition to the National Disability Insurance Scheme.

Question:

  1. Do you think that any specific changes should be made to any of these objects? If so, please outline the change or changes that you would suggest.
  2. Would you like to see anything else included as an object under the Act?

2.5 Principles

Section 9 of the Act sets out an extensive list of principles that are expressed to be relevant to the operation, administration and enforcement of the Act. (The principles are set out at the end of this paper.)

Question:

  1. Do you think that these principles are useful?
  2. The principles can provide important guidance in relation to the purposes and operations of the Act. Do you think that some principles should be promoted above other principles (recognising that particular reference is made to the special situation faced by women with disability, children with disability, Aboriginal and Torres Strait Islander people with disability and people from culturally and linguistically diverse backgrounds with disability)? Do you think that there are any gaps?

3 Functions of Chief Executive and department

3 Functions of Chief Executive and department

Section 10 relates to the functions of the Chief Executive (and therefore the department) under the Act. The functions may be summarised as follows:

  1. to prepare and publish guidelines for the purposes of the Act;
  2. to prepare and provide reports associated with the operation of the Act;
  3. to monitor the extent to which the objects and principles of the Act are being achieved;
  4. to monitor the extent to which the State Disability Inclusion Plan and disability access and inclusion plans are being implemented;
  5. to monitor compliance of State authorities with the requirements of Part 5 of the Act (Part 5 relates to disability access and inclusion plans);
  6. to make recommendations relevant to the operation of Part 5 of the Act;
  7. to advise the Minister on matters relevant to the operation, administration and enforcement of the Act;
  8. other functions conferred by the Act or the Minister.

Question:

  1. What else could the Chief Executive be doing, from a practical perspective, to support or promote the objects and principles under the Act?

4 Disability inclusion plans

4 Disability inclusion plans

4.1 State Disability Inclusion Plan

The State Disability Inclusion Plan is required to set out whole-of-government policies and measures for achieving the objects of the Act and to provide for collaboration and coordination among State authorities and other entities in relation to the provision of mainstream supports and services to people with disability. (See section 13(3) of the Act.)

Section 15 of the Act provides a separate scheme for the review of the State Disability Inclusion Plan. Accordingly, while it is not part of this review to seek feedback on the current plan or to undertake an analysis of its actual content or effectiveness, it is appropriate to consider whether the scope of the plan, as specified by the Act, should be varied and whether the processes associated with the development and review of the plan are satisfactory.

Questions:

  1. Recognising that the State Disability Inclusion Plan is intended to be the leading policy document for social inclusion within the State, do you think that the scope of the plan should be varied? What else could be appropriately addressed by the plan?
  2. Should the Act say something more about the processes associated with the development and review of the State Disability Inclusion Plan?

4.2 Disability access and inclusion plans

Each State authority is to have a disability access and inclusion plan. A plan must set out measures that the State authority intends to put in place to ensure that people with disability can access mainstream supports and services provided by the State authority, explain how the State authority proposes to give effect to the Act’s objects and principles, explain how the State authority proposes to give effect to the State Disability Inclusion Plan, and include strategies to support people with disability in some specified areas. (See section 16(3) of the Act.)

Section 18 of the Act provides a separate scheme for the review of disability access and inclusion plans by State authorities. Accordingly, while it is not part of this review to seek feedback on current plans or to undertake an analysis of their actual content or effectiveness, it is appropriate to consider whether the scope of the plans, as specified by the Act, should be varied and whether the processes associated with the development and review of the plans are satisfactory.

Questions:

  1. Disability access and inclusion plans are important policy documents associated with supporting and enhancing inclusion for people with disability, especially in the areas of (a) access to built environs, events and facilities, (b) access to information and communications, (c) addressing specific needs of people with disability in programs and services, and (d) employment. Do you think that the plans are working well? Do you think that the scope of the plans should be varied? What else could be appropriately addressed by a plan?
  2. Should the Act say something more about the processes associated with the development and review of disability access and inclusion plans?

5 NDIS worker screening

5 NDIS worker screening

Each State and Territory is responsible for undertaking the screening of people for the purpose of issuing NDIS worker check clearances. The scheme for screening workers is similar to the schemes applying in other jurisdictions and it is necessary for the legislation to satisfy a variety of intergovernmental requirements. An essential aspect of the scheme is to assess whether a person who has applied for a clearance poses a risk of harm to people with disability.

Questions:

  1. Have you encountered a situation where the processes in the Act associated with NDIS worker screening could be improved (without compromising the principles that underpin the scheme)? Any changes would need to be consistent with relevant national agreements. Should the Act say something more about the processes associated with the development and review of disability access and inclusion plans?

6 Related issues for purposes of the review

6.1  Supporting and promoting some key themes

As indicated near the beginning of the paper, there is some benefit in aligning aspects of the review with the themes and priorities that have been adopted by Inclusion SA on the basis of what people with disability have previously identified as being important to them. The reviewer would therefore welcome specific comments or information about the extent to which the Act has assisted in promoting the following themes associated with disability inclusion:

  • Inclusive communities for all
  • Leadership and collaboration
  • Accessible communities
  • Learning and employment.

Questions:

  1. To what extent has the Act assisted in promoting these themes and related priorities?
  2. Can you think of any major barriers to promoting and advancing these priorities that could be addressed by amendment of the Act?

6.2 Overall operation of Act

There are a number of criteria against which the overall operation of the Act can be assessed or measured. The following have been identified as possible measures for the purposes of the review. Any comments about some or all of these matters would assist in assessing the extent to which the Act has been effective and is achieving its purposes.

Questions:

  1. Thinking about what can be done at the State and local level rather than by the Commonwealth government, what else could be reasonably done from a legislative perspective to increase the ability of people with disability to achieve their potential as equal citizens?
  2. Do you think that the enactment of the Disability Inclusion Act 2018, and the implementation of initiatives under the Act since its commencement, have made a significant impact on improving the lives of people with disability, especially when considering disability inclusion?
  3. Are issues relevant to people with disability being widely discussed and considered in the community as a result of activities conducted under the Act?
  4. Are policies, programs and other initiatives and actions working well for people with culturally and linguistically diverse backgrounds?
  5. Is there anything that you would have expected to be in place by now on account of the enactment of the Act that has not been achieved to date? If so, please provide some details.
  6. How well do you rate, on a scale of 1 to 10 (with 1 being a low rating and 10 a high rating), the extent to which the Act is promoting the inclusion in the community of people with disability?

Related matters

It is clear that a fundamental purpose of this legislation is to promote the development of strategies and policies across government that are relevant to the inclusion of people with disability.

Question:

  1. What else could be done to achieve greater coordination and collaboration across government in the area of disability inclusion?

6.3 General questions

Question:

  1. What is working well under the Act?
  2. What is not working as well as it should be?
  3. Are there any provisions, that have not been identified in the earlier parts of this paper, where greater clarity is required in relation to any responsibilities or reporting arrangements under the Act?
  4. Is there anything else that you consider is relevant to the terms of reference for this review? If so, please provide some information.

Objects of the Act

Objects of the Act

The objects of the Act include—

  1. acknowledging that people with disability 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
  2. promoting the independence and social and economic inclusion of people with disability; and
  3. providing safeguards in relation to the delivery of all supports and services for people with disability; and
  4. 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
  5. articulating and facilitating the roles of the State during and following the transition to the National Disability Insurance Scheme.

Principles

Principles

  1. The following principles are to be observed in the operation, administration and enforcement of the Act:
    1. people with disability have the same fundamental human rights and responsibilities, and the same right to autonomy, as other members of the community;
    2. people with disability have an inherent right to respect for their worth and dignity as individuals;
    3. 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;
    4. people with disability have the right to realise their physical, social, sexual, reproductive, emotional and intellectual capacities;
    5. 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;
    6. 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;
    7. 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;
    8. people with disability have the right to respect for their cultural or linguistic diversity, age, gender, sexual orientation and religious beliefs;
    9. people with disability have the same rights to privacy and confidentiality as other members of the community;
    10. people with disability have the right to live free from neglect, abuse and exploitation;
    11. people with disability have the same rights as other members of the community to pursue complaints and access justice;
    12. 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;
    13. 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;
    14. the needs of children with disability as they develop, and their rights as equal members of the community, are to be acknowledged and respected;
    15. the changing abilities, strengths, goals and needs of people with disability as they age are to be acknowledged and respected.
  2. 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 the Act as it relates to women with disability:
    1. many women with disability face multiple disadvantages and are potentially more vulnerable to risk of abuse or exploitation;
    2. 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.
  3. 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 the Act as it relates to children with disability:
    1. 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;
    2. decisions affecting children with disability under the Act should be child‑centred;
    3. 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;
    4. 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;
    5. children with disability are more vulnerable to risk of abuse or exploitation;
    6. the developmental needs of children with disability must be taken into account, with particular focus on critical periods in their childhood and adolescence;
    7. 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.
  4. 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 the Act as it relates to Aboriginal and Torres Strait Islander people with disability:
    1. 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;
    2. many Aboriginal and Torres Strait Islander people with disability face multiple disadvantages;
    3. 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.
  5. 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 the Act as it relates to people with disability from culturally and linguistically diverse backgrounds:
    1. cultural, language and other differences create barriers to providing supports and services to people with disability from culturally and linguistically diverse backgrounds;
    2. 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.
  6. Each person or body engaged in the administration, operation or enforcement of the Act must exercise their powers and perform their functions so as to give effect to the principles set out in this section.

Review of the Disability Inclusion Act 2018 (South Australia) - Discussion Paper (PDF 302.1 KB)

Review of the Disability Inclusion Act 2018 (South Australia) - Discussion Paper (DOCX 118.4 KB)

Disability Inclusion Act 2018 - Making sure it works well - Easy Read - Plain text (DOCX 94.9 KB)

Disability Inclusion Act 2018 - Making sure it works well - Easy Read (PDF 9.6 MB)

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URL:
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Last Updated:
12 Aug 2020
Printed on:
22 May 2022
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