Bills

Disability Inclusion Bill

Introduction and First Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (16:17): Obtained leave and introduced a bill for an act to promote the full inclusion in the community of people with disability; to assist people with disability to achieve their full potential as equal citizens; to promote improved access to mainstream supports and services by people with disability; to provide for the screening of persons who want to work or volunteer with people with disability and to prohibit those who pose an unacceptable risk to people with disability from working or volunteering with them; to provide for a community visitor scheme; to provide for responsibilities of the state during and following the transition to the National Disability Insurance Scheme; and for other purposes.

Read a first time.

Second Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (16:19): I move:

That this bill be now read a second time.

This bill is the fulfilment of a pre-election commitment to reintroduce this bill within the first 100 days. The Marshall Liberal government is committed to laws to bring about tangible measures that recognise and enshrine rights and responsibilities for people with disability as assumed by other members of the community, and I now propose to reintroduce this bill into parliament.

The Disability Inclusion Bill aims to promote human rights and improve inclusion in the community for South Australians with disability. It is an important piece of legislation in the context of significant change taking place in the disability sector at the present time. The National Disability Insurance Scheme (NDIS) is transforming the way disability support is funded and delivered across Australia.

We are currently in a period of transition from the state administered scheme to a national scheme delivered by the commonwealth government. The NDIS presents a major reform and heralds a new era in the provision of services and supports for people with disability, with an emphasis on individual choice and control. South Australia was one of the first jurisdictions to sign up to the NDIS and will also be one of the first jurisdictions to reach full scheme implementation.

In the context of these major reforms, the Disability Inclusion Bill seeks to clarify South Australia's role in supporting people with disability. The bill sets the state government's future direction, focused on rights and inclusion, in line with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and the National Disability Strategy (NDS).

Previously, the state government was responsible for funding providers to deliver services to people with disability. The Disability Services Act 1993 was created for this purpose. It is therefore a service-oriented act established to administer funding and regulate the state disability services sector. During transition, the South Australian government is progressively transferring responsibility for disability services and support to the commonwealth government and the National Disability Insurance Agency (NDIA).

The Disability Services Act 1993 will not be required once transition to the NDIS is fully realised because the state government will no longer directly fund services. Instead, the NDIA will work with eligible individuals to create a personal budget to pay for their chosen services and supports, based on their goals.

We know there is more to living a fulfilling life than simply being able to access disability services and supports. People with disability also have a right to be included in all other aspects of the community on an equal basis with other citizens. Inclusion covers things that may otherwise be taken for granted, like catching a bus to work, attending community events, going to the shops or sporting events, and participating in training or other educational activities. It means access to broader community and mainstream services and opportunities that, without dedicated planning and action, are not always easily accessible to people with disability due to various factors. Enhancing inclusion and removing these barriers is the focus of the Disability Inclusion Bill.

These challenges were recognised in the National Disability Strategy, which was Australia's response to the ratification of the UNCRPD. The state government will continue to have a role in implementing the aims of the NDS and the UNCRPD into the future, once the NDIS is fully rolled out. The principles and vision of these landmark documents set the policy foundation for the Disability Inclusion Bill.

I now turn to the features of the bill. The bill is underpinned by a range of rights-based principles that reflect the tone of the UNCRPD and NDS. These principles are based on a recognition that whilst 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 bill gives visibility to the issues faced by people with disability.

The overall purpose of the bill is to ensure these issues are considered and the views of people with disability are incorporated into policies and programs that affect them. The bill also articulates a range of rights specific to certain groups who can face additional challenges and vulnerabilities. This includes women with disability, children with disability, Aboriginal and Torres Strait Islander people with disability and culturally and linguistically diverse people with disability. The principles will be brought to life through disability inclusion planning, which is another key feature of the bill.

Achieving an inclusive society is a long-term vision that requires consistent efforts. The bill aims to support this by ensuring that appropriate planning takes place in a coordinated manner across state and local government. This planning will underpin a more inclusive community, which provides equality of access to mainstream services and facilities for people with disability, in line with the six outcomes areas of the NDS.

Under the bill, a state disability inclusion plan will be developed every four years. There is also a requirement for state government departments, statutory authorities and local councils to develop and implement a disability access and inclusion plan (DAIP) every four years. A list of which statutory authorities are captured by this requirement will be prescribed through regulations at a later stage once the legislation has passed and will be done in consultation with affected organisations.

The state disability inclusion plan will be the overarching framework. It will set the state government's disability inclusion agenda and provide guidance for agencies developing DAIPs. DAIPs will detail the ways in which agencies which are captured by the bill's requirements plan to improve access to their services and programs. DAIPs will address their identified barriers and specify the action required to ensure that people with disability can contribute to and participate more fully in their communities.

An annual report will be prepared, providing a single reference point for tracking progress across the state disability inclusion plan and the various DAIPs. The need to involve people with disability, their families, carers, advocates and peak bodies in disability inclusion planning is recognised as well. This is in line with the state government's approach to engagement, which is to involve South Australians in decisions that matter to them. Broad requirements for consultation are included in the bill. It stipulates that all plans must be developed in consultation with people with disability. The specific consultation requirements will be detailed in accompanying regulations and guidelines to be developed.

State government departments, statutory authorities and many local councils are already preparing these plans and doing much in this area. Including this requirement in the bill will place greater rigour and emphasis on the disability inclusion planning process and a consistent approach across the state. In addition to the rights and inclusion focus, the bill includes a range of other supplementary aims. The national Quality and Safeguarding Framework will set nationally consistent requirements for ensuring supports and services delivered through the NDIS are safe and of high quality.

There will be joint responsibility between the commonwealth and state government for certain aspects of the national framework, including worker screening. Current requirements for worker screening in the South Australian disability services sector are covered by the Disability Services Act 1993, which will no longer have any force once the NDIS is fully implemented. Therefore, a new legislative basis for worker screening is needed. Part 6 of the bill provides the ability to establish a worker screening scheme through the regulations. Where possible, the bill mirrors the new working with children check scheme being established through the Child Safety—

The Hon. K.J. Maher interjecting:

The Hon. J.M.A. LENSINK: —will you behave yourself—(Prohibited Persons) Act 2016. Further operational details will be provided in the accompanying regulations, which will also mirror the new working with children check scheme and will be developed in line with the national policy proposed under the national Quality and Safeguarding Framework.

The bill also includes the ability to make regulations for a community visitor scheme (CVS). Currently, the South Australian disability CVS operates under the Disability Services Act 1993. This scheme will continue to operate during transition to the NDIS. A national evaluation of community visitor schemes across the country is underway, the findings of which will inform the commonwealth government's position on such a scheme under the NDIS. Depending on the outcome of this review, part 7 of the bill allows the state government to develop regulations to establish a CVS if the need arises.

Lastly, the bill enables the drafting of general regulations that may include any measures to fill gaps that emerge as implementation of the NDIS continues; in particular, elements of the national Quality and Safeguarding Framework. Part 6 of schedule 1 of the bill allows for the Disability Services Act 1993 to be repealed once it is no longer needed. Importantly, it is not intended that the Disability Inclusion Bill replace the Disability Services Act 1993. This is because the Disability Services Act 1993 is still required whilst we are in transition to the NDIS. Part 6 of schedule 1 will only be enacted once the NDIA fully assumes responsibility for the disability services sector in South Australia. A period may therefore exist in which both the Disability Inclusion Bill and the Disability Services Act 1993 operate at the same time.

In closing, I would like to acknowledge the work of the previous government in the drafting of this legislation. The bill before us is identical, except that the date is 2018 instead of 2017. I would also like to acknowledge the work of Dr David Caudrey, who has remained in service to ensure that the important work of disability policy continues under the South Australian government, at least until we reach full transition. I commend the bill to members. I seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause defines terms and phrases used in the Bill.

4—Interaction with other laws

This clause clarifies that the provisions of the Bill do not limit the operation of other Acts unless the contrary intention appears in the Bill.

5—Act to bind, and impose criminal liability on, the Crown

This clause extends the potential for criminal liability under the Bill to include the Crown.

6—Part 2 etc not to create legally enforceable rights etc

This clause confirms that proposed Part 2 of the Bill does not create legally enforceable rights or entitlements, nor does it affect existing rights or liabilities.

Part 2—Objects and principles

7—Act to support United Nations Convention on the Rights of Persons with Disabilities etc

This clause sets out Parliament's intention that the proposed Act is to be administered so as to support and further the principles and purposes of the United Nations Convention on the Rights of Persons with Disabilities, as well any other relevant international human rights instruments affecting people with disability.

8—Objects

This clause sets out the objects of the Bill.

9—Principles

This clause sets out principles to be observed in the course of the operation, administration and enforcement of the proposed Act.

Part 3—Administration

10—Functions of Chief Executive

This clause sets out the functions of the Chief Executive under the proposed Act.

11—Powers of delegation

This clause is a standard power of delegation.

12—Guidelines

This clause empowers the Chief Executive to publish guidelines for the purposes of the proposed Act.

Part 4—State Disability Inclusion Plan

13—State Disability Inclusion Plan

This clause requires the preparation of a plan setting out or providing for the matters referred to in proposed subsection (3), to be known as the State Disability Inclusion Plan.

The clause makes procedural provision in relation to the preparation of the plan, including consultation requirements and requiring the plan to be laid before Parliament.

14—Annual report on operation of State Disability Inclusion Plan

This clause requires the Chief Executive to prepare an annual report on the State Disability Inclusion Plan in respect of each financial year, with the report to be laid before Parliament.

15—Review of State Disability Inclusion Plan

This clause requires the Minister to review the State Disability Inclusion Plan at least once in each 4 year period, with a report on the review to be laid before Parliament.

Part 5—Disability access and inclusion plans

16—Disability access and inclusion plans

This clause requires each State authority, as defined in proposed section 3, to prepare a disability access and inclusion plan and sets out how such plans are to be prepared and what they must contain. The plans are required to be published and accessible to people with disability.

17—Annual report on operation of disability access and inclusion plan

This clause requires each State authority to prepare an annual report on their disability access and inclusion plan in respect of each financial year, with a combined summary of the reports required to be laid before Parliament.

18—Review of disability access and inclusion plans

This clause requires State authorities to review their disability access and inclusion plans at least once in each 4 year period, with a report on the review to be submitted to the Minister.

Part 6—Screening of persons working with people with disability

19—Interpretation

This clause defines terms and phrases used in the proposed Part.

20—Working with people with disability

This clause defines what it means to work with people with disability for the purposes of the proposed Part.

21—Certain persons prohibited from working with people with disability

This clause prohibits persons of the kinds specified in proposed subsection (1) from working with people with disability, and creates an offence where they do so in contravention of the proposed subsection. The clause also creates an offence for an employer to employ, or continue to employ, a prohibited person in a prescribed position as defined in proposed section 19.

22—Working with people with disability without current screening check prohibited

This clause prohibits a person from working with people with disability unless a screening check has been conducted in relation to the person within the preceding 5 years, and creates an offence where they do so in contravention of the proposed subsection.

23—Regulations to set out scheme for screening checks

This clause is a regulation making power allowing the regulations to set out a scheme for the screening of people proposing to work with people with disability.

Part 7—Community Visitor Scheme

24—Community Visitor Scheme

This clause is a regulation making power allowing the regulations to set out a scheme for a community visitor or visitors in relation to people with disability.

Part 8—National Disability Insurance Scheme

25—Regulations for the purpose of implementing etc the National Disability Insurance Scheme

This clause is a regulation making power allowing the regulations to make provisions providing for, or relating to, the transition to the National Disability Insurance Scheme.

Part 9—Information gathering and sharing

26—Chief Executive may require State authority to provide report

This clause confers on the Chief Executive the power to require a State authority to prepare and provide a report to the Chief Executive in relation to specified matters, and sets out procedures for where a State authority fails to do so.

27—Sharing of information between certain persons and bodies

This clause enables specified persons or bodies to exchange certain information and documents with each other to enable them to perform official functions or to manage certain risks.

28—Interaction with Public Sector (Data Sharing) Act 2016

This clause clarifies that the provisions of the proposed Part do not limit the operation of the Public Sector (Data Sharing) Act 2016.

Part 10—Miscellaneous

29—Confidentiality

This clause is a standard provision preventing confidential information from being disclosed except in the circumstances specified in the proposed section.

30—Victimisation

This clause is a standard provision allowing a person who is the subject of an act of victimisation as defined in the proposed section to have the matter dealt with as a tort or under the Equal Opportunity Act 1984.

31—Service

This clause sets out how documents and notices may be served on a person.

32—Review of Act

This clause requires the Minister to review the operation of the proposed Act between 3 and 4 years after commencement, with a report on the review to be provided to the Parliament.

33—Regulations

This clause is a standard regulation making power.

Schedule 1—Related amendments, transitional provisions and repeal

Part 1—Preliminary

1—Amendment provisions

This clause is formal.

Part 2—Amendment of Carers Recognition Act 2005

2—Amendment of section 5—Meaning of carer

This clause makes a consequential amendment.

Part 3—Amendment of Disability Services Act 1993

3—Repeal of sections 5B and 5C

This clause makes a consequential amendment.

Part 4—Amendment of Intervention Orders (Prevention of Abuse) Act 2009

4—Amendment of section 3—Interpretation

This clause makes a consequential amendment.

Part 5—Repeal of Disability Services Act 1993

5—Repeal of Disability Services Act 1993

This clause repeals the Disability Services Act 1993, and will be brought into operation once the National Disability Insurance Scheme is operational.

Debate adjourned on motion of Hon. C.M. Scriven.