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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2023-06-28 Daily Xml
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Disability Inclusion (Review Recommendations) Amendment Bill

Introduction and First Reading

The Hon. N.F. COOK (Hurtle Vale—Minister for Human Services) (15:38): Obtained leave and introduced a bill for an act to amend the Disability Inclusion Act 2018. Read a first time.

Second Reading

The Hon. N.F. COOK (Hurtle Vale—Minister for Human Services) (15:39): I move:

That this bill be now read a second time.

The Disability Inclusion (Review Recommendations) Amendment Bill 2023 seeks to make important changes to the Disability Inclusion Act 2018 that is a critical part of our legislative scheme. The act promotes the recognition of essential human rights in South Australia in line with the United Nations Convention on the Rights of Persons with Disabilities and interacts with Australia's Disability Strategy 2021-2031. The act also sets out a number of principles aligned to the United Nations convention and requires the creation of the State Disability Inclusion Plan, known as Inclusive SA.

In addition to the overarching statewide plan, the act requires almost 100 state authorities, including government agencies and all 68 local councils, to develop their own disability access and inclusion plans, often referred to as DAIPs. Since the legislation was passed and enacted, state authorities have consulted and developed these DAIPs that have been an important step in making our community more inclusive and responsive to the needs of people with disability. Together, Inclusive SA and the DAIPs provide a range of benefits, including requiring agencies to:

consult people within the community;

critically analyse their services and processes; and

commit to actions that improve responses to people with disability.

These plans are not perfect, and the needs and views of people with disability change over time. For that reason, these plans are subject to review, and Inclusive SA will be reviewed later in 2023. I welcome input from members of this place, local constituents, organisations and anyone who wants to make our community more inclusive.

It is not just the various inclusion plans that require review. Under section 21 of the act, the minister is required to cause a review of the operation of the act before the fourth anniversary of its commencement. This review was undertaken in mid-2022 by an independent reviewer who some in this place would know—Mr Richard Dennis AM, PSM—and who consulted widely in his work. A final report was provided to my office detailing 50 recommendations for consideration, and I tabled the report in this place in September 2022.

I note that 30 of the recommendations were not for legislative change, so are outside the scope of the bill, but I am happy to report that a number have already been actioned and completed. Despite not all the recommendations being legislative, they are all important and the government will consider them closely, along with other upcoming findings, recommendations and reviews.

In late 2023, we are expecting the outcomes of the major NDIS review that is looking at the first 10 years of this critical national reform. Around the same time, we are also expecting the findings and recommendations of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. This will be happening while we consult on the next iteration of Inclusive SA, the statewide disability inclusion plan that is made under this legislation.

To say that 2023 will be a critical period in our history for disability policy is an understatement, and this bill is an important first step. People with disability are not responsible for the limitations imposed on them by outside forces. Social change is needed to provide equality, inclusion and justice for people with disability, and this is done by removing barriers arising from the physical environment, attitudes, law, regulations and policy.

In response to the Dennis review, my department worked with parliamentary counsel to develop the draft Disability Inclusion (Review Recommendations) Amendment Bill 2022 that dealt with 14 of the 20 legislative recommendations. Although all recommendations were broadly supported by my department, some require further scoping to determine how they can be actioned effectively. Subject to the outcome of this scoping work, further legislation may be required, and I will consider this in the context of the other recommendations, findings and review outcomes that we expect this year.

After developing a draft bill, there was further consultation. Between 27 February 2023 and 6 April 2023, the Department of Human Services conducted a consultation via YourSAy, a portal that seeks community feedback on the draft bill and commenced discussions on the State Disability Inclusion Plan more broadly. Peak organisations, and those that had provided feedback in the first phase of consultation, were invited to provide written submissions.

Overall, the feedback we received in response to the draft bill demonstrated community support. I would like to express my thanks to everyone who gave their time to contribute to the multiple consultations and draft the bill that helped us get to where we are today. Specifically, this bill proposes to:

enact provisions currently appearing in the Disability Inclusion Regulations 2019 as provisions in the act;

include a definition of barrier in the act, given the significance of the concept of barriers in the definition of disability and within the wider issue of achieving greater inclusion;

include new paragraphs within the act to provide expressly that people with disability, regardless of age, have a right to be safe and to feel safe through the provision of appropriate safeguards, information, services, and support;

amend sections within the act to enhance clarity and/or definition of the principles as they relate to people with significant intellectual disability or who have high levels of vulnerability due to their disability;

amend sections within the act relating to the reporting requirements and time frames for the state plan and state authority Disability Access and Inclusion Plan, as well as the specific functions of the chief executive of the Department of Human Services; and

require consultation with people with lived experience, and authorise the formation of groups to facilitate consultation.

The bill aims to enhance the act, support greater access and inclusion for people with disability and ensure the state government and local councils remain responsive and accountable. The act currently defines disability in section 3 as, and I quote:

…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;

The word 'barrier' appears here as well as in other places in the act, but is not defined. As noted earlier, the Dennis review and draft bill proposes a definition of the term 'barrier' to be included in the act, as follows:

Barrier includes something that is—

(a) physical, architectural, technological, or attitudinal; or

(b) based on information or communications; or

(c) the result of a policy or practice.

I also recently discussed the concept of defining barriers in the act with my ministerial Disability Advisory Council, and I found different views on the detail but a common view that a definition would be useful. Members of the council also noted value in seeking to adopt a consistent approach to defining barriers in different state and federal legislation.

The second proposed amendment area relates to a greater emphasis of the United Nations Convention on the Rights of Persons with Disabilities, often referred to as the UNCRPD. Specifically, it has been proposed that an additional paragraph be included under section 8, as follows:

(f) making significant gains towards achieving an inclusive community where principles outlined in the United Nations Convention on the Rights of Persons with Disabilities underpin the development and delivery of services, especially by removing barriers so that people with disability, regardless of age, are able to access services and to participate in the community in the same way as other members of the community.

It was broadly accepted by respondents to the consultation that greater emphasis on the UNCRPD principles was a positive improvement to the act, and underpins the overall intention of the act.

Several written submissions highlighted that greater emphasis on supporting the universal design approach to buildings and spaces that accommodate the needs of people living with disability, and other groups with diverse needs, is required. One respondent said, 'If people are shut out of society, they may question their ability to make a valuable contribution or feel too intimidated to try.'

As members of this place should be aware, the Malinauskas Labor government has agreed to changes to the National Construction Code from October 2024 that will improve building accessibility. I also note that this could have been done under the previous government, but they failed to do so in preference of a voluntary model that was not expected to achieve universal take-up. No-one should underestimate the impact of having accessible homes that exist within an accessible community.

The third proposed amendment area relates to the provision of appropriate safeguards, including information and reporting mechanisms. Specifically, it has been proposed that an additional paragraph be included under section 9(1) as follows:

(ja) people with disability have the right to be safe, and to feel safe, through the provision of appropriate safeguards, information, services, and support, and through appropriate and accessible reporting mechanisms in cases of neglect, abuse or exploitation.

Respondents to the YourSAy survey and through written submissions highlighted that the South Australian government should invest in mechanisms to enhance the safeguarding of people living with disability and consider how this commitment can be reflected in the next state plan. As one respondent outlined, and I quote:

Safeguards include natural safeguards like personal relationships and community connections, and that it is [with] these safeguards that need to be built into the lives of every people living with disability in order to truly make inroads into preventing abuse and harm.

In South Australia, and Australia more broadly, there are various formal safeguard mechanisms in place including the National Disability Insurance Scheme Quality and Safeguards Commission and the Adult Safeguarding Unit. The state government will consider further improvements to safeguarding policy when the royal commission is handed down in late 2023, along with the NDIS review.

The fourth proposed area of amendment relates to the right to participate in the design and delivery of inclusive policies and programs. Specifically, it has been proposed that additional paragraphs be included under section 9(1) as follows:

(p) people with disability and their families and representatives as appropriate have a right to participate in the design and delivery of inclusive policies and programs; and

(q) insofar as people with disability may not be able to find out about their rights or may not be able to understand their rights because of their disability, state and local government should take reasonable steps to assist them to learn about their rights and to develop ways in which they can, or their families or representatives can, report violation of those rights.

The rights of people with disability to actively contribute to the design and delivery of inclusive policies and programs was resoundingly supported by YourSAy survey respondents and written submissions. YourSAy respondents provided meaningful suggestions on how state authorities can engage with the disability community on matters concerning them, including:

genuine co-design principles where a diverse range of people with relevant skills, experience or interests come together to provide advice and make decisions in a project, policy, program or initiative;

engagement with relevant disability-led peer groups and organisations, providing alternative forms of communication, including Auslan; and

providing sufficient time and transparency.

Respondents commended my announcement of the disability minister's advisory council, that we call the DMAC for short. We sought expressions of interest for the DMAC in late 2022 and commenced formal meetings in 2023. This was seen as sending a clear message to the rest of government that people living with disability must be involved in government policy, programs and services.

Of critical importance to the community is that groups such as the DMAC are not tokenistic and have a genuine opportunity to contribute to the conversation. The only change from the draft bill to the one before us today relates to this advisory council. The draft bill provided lengthy detailed and prescriptive arrangements for the council and I note it was drafted before I formed the current group. As such, the bill before the house requires me to consult with people with disability and allows me to form groups like the disability ministerial advisory council, but we have removed the highly detailed provisions.

Before placing a high level of detail into the act, I want to see how the council operates and give the council an opportunity to provide input as to how its role, membership and operation should be reflected in the act.

The fifth area of amendment relates to supporting people with significant intellectual disability or high levels of vulnerability due to disability. Specifically, it has been proposed that additional paragraphs be included under section 9(3) as follows:

(5a) In addition to the principles set out in any other provision of this section, the following principles are to be acknowledged and addressed in the operation, administration and enforcement of this act as it relates to people with significant intellectual disability or who have high levels of vulnerability due to disability.

(a) people with significant intellectual disability or who have high levels of vulnerability due to disability have a right to feel safe, to enjoy dignity in their lives and to participate in the community in meaningful ways;

(b) people with significant intellectual disability or who have high levels of vulnerability due to disability may face major barriers, which they may not be able to understand and so need support from others to advocate on their behalf when seeking to remove or deal with those barriers.

Section 9 of the act includes separate and important principles that apply to certain groups of people who may face additional barriers, inequities and other challenges associated with disability inclusion. During consultations for the Dennis review, a submission indicated that people within the community with profound intellectual disability or who have heightened vulnerability need special recognition, resulting in this proposed amendment.

The inclusion of this new priority cohort reflects the additional challenges and vulnerability that they face, and ensures that the act places greater priority on the needs of these groups—and I quote from the Dennis review—'where their situation may compound various barriers to disability inclusion.'

The Dennis review identified that those with profound intellectual disability or who have heightened vulnerability may need to rely on others to advocate for them, or may face additional barriers that require additional protections or assistance for them to lead their lives. This proposed amendment will support greater recognition of their situation.

The overall intention of section 9 is to highlight the need for state authorities to observe select principles in the operation, administration and enforcement of the act, and for those principles to be acknowledged and addressed, where relevant, when enforcing various aspects of the act. This will be achieved through state authority DAIPs.

During consultation, and when developing his review, Mr Dennis considered the terminology used within the recommendation. The subsequent bill has incorporated this feedback in the design of the amendment. I note here that my advisory council, just like respondents to the various consultations, had differing views about reference to vulnerability in the act. I will listen carefully to the range of views now and in future changes to legislation.

The sixth area of amendment relates to the functions of the Chief Executive of the Department of Human Services. Section 10 of the act currently outlines the functions of the Chief Executive of the Department of Human Services under the act as:

preparing reports as may be required under the act;

monitoring the extent to which the objects and principles of the act are being achieved;

monitoring the state plan;

monitoring state authorities DAIPs; and

making recommendations to the minister, as required.

The bill proposes an additional paragraph be included under section 10(1) as follows:

(ga) advising the Minister on systemic or emerging accessibility and inclusion issues;

This amendment also makes it clear that the department is responsible for any potential out-of-scope systemic or emerging accessibility and inclusion issues, and will be considered further during the state plan review.

The seventh and final area of amendment relates to the State Disability Inclusion Plan and reporting requirements. A number of amendments have been proposed relating to the state plan and the associated reporting requirements. As these proposed amendments relate mostly to the operational updates for state authorities, feedback was sought on how the state government can most effectively inform the community on the work we are doing to improve access and inclusion. Feedback received indicates that initiatives such as the award-winning See Me for Me campaign are valuable for educating the community about what it truly means to live with disability, but that it needed to extend further than just observing physical, visible disabilities.

The Department of Human Services has committed to ensuring that future iterations of the state plan are supported with guidelines and tools to support effective reporting, implementation and delivery of actions where relevant. I commend the bill to the house. I seek leave to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

This clause provides that the measure will come into operation on a date to be fixed by proclamation.

Part 2—Amendment of Disability Inclusion Act 2018

3—Amendment of section 3—Interpretation

This clause inserts a definition of barrier to the interpretation section of the Act.

4—Insertion of section 7A

This clause inserts a new section 7A into the Act.

7A—Minister to seek views of people with disability

Proposed section 7A requires the Minister to seek the views of people with disability regarding the operation, administration and enforcement of the Act, and furthering the objects of the Act. It provides for the Minister to create a committee for the purposes of advising and assisting them in doing so.

5—Amendment of section 8—Objects

This amendment makes clear that the objects apply to persons with disability of all ages, and adds a new object to the Act.

6—Amendment of section 9—Principles

This amendment inserts new principles to the Act.

7—Amendment of section 10—Functions of Chief Executive

This amendment inserts a new function under the Act to the Chief Executive.

8—Amendment of section 13—State Disability Inclusion Plan

This amendment requires the State Disability Inclusion Plan to contain a variety of provisions, and that any documents prepared for the purposes consultation are in a form accessible to people with disability.

9—Amendment of section 14—Annual report on operation of State Disability Inclusion Plan

This amendment changes the reporting period for each annual report to cover a calendar year instead of a financial year, and shifts the date a report is due by.

10—Amendment of section 15—Review of State Disability Inclusion Plan

This amendment requires that a report to the Minister for the purposes of the section include or be accompanied by information regarding any recommended changes to the State Disability Inclusion Plan resulting from the review.

11—Amendment of section 16—Disability access and inclusion plans

This amendment requires a State authority's disability access and inclusion plan to include strategies ensuring the needs of priority groups identified by the measure are addressed by the plan, and requires that any documents produced prepared for consultation are in a form accessible to people with disability.

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

This amendment adds a requirement to the report prepared by each State authority, changes the reporting period for annual reports under the section to cover a calendar year as opposed to a financial year, and changes the date the reports are due by.

13—Amendment of section 18—Review of disability access and inclusion plans

This amendment provides that should the State Disability Inclusion plan be varied, a State authority must ensure that their disability access and inclusion plan remains consistent with it.

Schedule 1—Transitional and saving etc provisions

1—Annual report on operation of State Disability Inclusion Plan during transitional period

This clause ensures continuity of reporting during the transition to reporting on a calendar year basis from reporting based on a financial year basis.

2—Annual report on operation of disability access and inclusion plan during transitional period

This clause ensures continuity of reporting during the transition to reporting on a calendar year basis from reporting based on a financial year basis.

Debate adjourned on motion of Hon. J.A.W. Gardner.

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