2 The legislative scheme – key concepts, objects and principles
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.
- Is this definition still appropriate?
- Have there been any problems with the application of this definition?
- 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?
- 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:
- respect for human dignity, individual autonomy, including the freedom to make one’s own choices, and independence of persons;
- full and effective participation and inclusion in society;
- respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
- equality of opportunity;
- equality between men and women;
- respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
- Do you consider that the Act is being administered in a way that supports the convention and these principles?
- 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.
- 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.
- 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.
- 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?
- 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?
- 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?
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:
- 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;
- to promote the independence and social and economic inclusion of people with disability;
- to provide safeguards in relation to the delivery of supports and services for people with disability;
- to provide a framework to support a whole of Government approach to improving inclusion in all areas of life in the State;
- to facilitate the role of the State following the transition to the National Disability Insurance Scheme.
- 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.
- Would you like to see anything else included as an object under the Act?
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.)
- Do you think that these principles are useful?
- 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?