Aged and disability care law in South Australia 

This article is a wayfinding guide. It states South Australian law, and identifies where Commonwealth law governs instead. It adds no authority of its own: every proposition here is drawn from the linked articles on each South Australian statute, and the pinpoints in this article's citations are the ones verified there.

The organising question in this area is almost never "what does the Act say". It is which Act, and whose. Aged and disability care in South Australia is governed by two bodies of law that meet at almost every fact pattern, and the first task is always to separate them.

Commonwealth or State?

The Commonwealth funds and regulates the service. Aged care services are funded by subsidy and regulated under the Aged Care Act 2024 (Cth); disability supports are funded and providers regulated under the National Disability Insurance Scheme Act 2013 (Cth).⁹⁸ Provider registration, quality standards, worker screening obligations under the Commonwealth schemes, reportable incidents and the regulators that enforce them are Commonwealth questions. So is income support.

South Australia governs the person's legal capacity, their consent, and their protection. Who may decide for an adult who cannot decide for themselves, what a refusal of treatment binds, who may authorise a restrictive practice, what happens when an adult is being abused, and who hears a complaint about a service — these are State questions, and the answers are South Australian.

The two overlap most visibly in restrictive practices, where a Commonwealth rule requires a State authorisation. That is dealt with below, and it is the single most common place students get the jurisdiction wrong.

The seven statutes, and what each answers

South Australia's aged and disability care law is spread across seven Acts. Learn them by the question each answers.

| The question | The Act | The decision-maker | |---|---|---| | Can this adult decide for themselves, and who decides if not? | Guardianship and Administration Act 1993 (SA) | SACAT | | What did this person decide in advance about health care?⁵ | Advance Care Directives Act 2013 (SA) | The substitute decision-maker; SACAT on dispute | | Who can deal with this person's property and money?² | Powers of Attorney and Agency Act 1984 (SA) | The donee, supervised by the court | | May this restrictive practice be used?⁶ | Disability Inclusion Act 2018 (SA), Part 5A | Authorised Program Officer or Senior Authorising Officer | | This adult is being abused — what can be done?⁷ | Ageing and Adult Safeguarding Act 1995 (SA) | The Adult Safeguarding Unit; SACAT | | Who hears a complaint about the service?¹ | Health and Community Services Complaints Act 2004 (SA) | The Commissioner | | Does this unpaid carer have recognised standing?³ | Carers Recognition Act 2005 (SA) | Applicable organisations |

Capacity and substitute decision-making

Start with the Guardianship and Administration Act 1993 (SA).⁴ It defines mental incapacity as the inability of a person to look after their own health, safety or welfare or to manage their own affairs (s 3), and it sets principles in s 5 that govern every decision made under it — including the requirement in s 5(d) that the course adopted be the least restrictive of the person's rights and personal autonomy consistent with their proper care and protection.

SACAT makes guardianship orders under s 29 and administration orders under s 35, and may make them limited rather than full. A submission that a full order is required should always be tested against s 5(d) and against the limited-order power.

The Advance Care Directives Act 2013 (SA) then answers what the person decided while they still could. Two features are distinctive and both are traps.

Section 7(2)(d) provides that decision-making capacity is not taken to be impaired merely because a decision results, or may result, in an adverse outcome. An unwise decision is not an incapable one.

Section 19(1) makes only a refusal of particular health care binding. A directive's positive requests are not binding in the same way. Students routinely treat an advance care directive as a set of binding instructions in both directions; in South Australia it is not.

Section 13 keeps the instruments separate: an advance care directive cannot give a power of attorney, and a provision purporting to give one is void and of no effect (s 13(2)). Property and financial authority has to come from somewhere else, and there are two routes, not one. If the person made an enduring power of attorney while capable, it is the Powers of Attorney and Agency Act 1984 (SA). If they did not, it is a SACAT administration order under s 35 of the 1993 Act: the administrator takes control and management of the estate and may, under s 39(2)(a), sell the protected person's property.⁵ The second route is the one that matters in practice, because an enduring power can no longer be made once capacity is gone — which is usually when the question is asked.

That 1984 Act is the oldest instrument in this group and shows it. Section 6 sets the formalities for an enduring power; s 7 imposes a duty on the donee to exercise the powers with reasonable diligence to protect the interests of the donor; ss 8 and 9 deal with accounts and the consequences of failure. Section 14 limits the recognition of interstate enduring powers — check it whenever the donor or the assets have moved.

Restrictive practices: the Commonwealth–State join

This is the join to get right. The Commonwealth National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 define the five regulated restrictive practices in s 6 and make their use a matter of the conditions of a provider's registration, keyed to State and Territory prohibition and authorisation (ss 8(2), 9(2)(a), 10(2)(a) and 11(2)(a)).¹⁰ South Australia supplies the authorisation in *Part 5A of the Disability Inclusion Act 2018*** (SA).

Section 23A(4) states the limit plainly: nothing in the Part authorises the use of restrictive practices other than in accordance with this Part. Authorisation is split — an Authorised Program Officer for level 1 practices, the Senior Authorising Officer for the rest — and s 23M limits the purposes, expressly forbidding use as a punishment or for the convenience of others, or to address inadequate levels of staffing, equipment or facilities.

The practical sequence is: Commonwealth rule creates the requirement; South Australian Part 5A supplies the authorisation; the NDIS Quality and Safeguards Commission enforces against the provider. An answer that treats restrictive practice authorisation as purely federal, or purely State, is wrong in both directions.

Abuse of an older or vulnerable adult

The Ageing and Adult Safeguarding Act 1995 (SA) is South Australia's distinctive contribution and the most instructive statute in the group.

It applies to a relevant adult, defined in s 3(1) as a person 18 years or older who may be vulnerable to abuse, and defines abuse in s 4(1) by reference to conduct occurring within a relationship of trust, dependency or imbalance of power.

Two design choices matter. Reporting is voluntary: s 22(4)(a) states that nothing in the section requires a person to report a suspicion that a relevant adult has been abused. And the safeguarding response is consent-based — the Adult Safeguarding Unit acts with the adult's consent, subject to defined exceptions in s 28, with SACAT able under s 33(1)(c) to authorise action the adult has refused.

South Australia therefore treats an adult's refusal of help as a decision to be respected unless a tribunal displaces it. Compare New South Wales and Queensland, where the safeguarding models differ, before assuming the South Australian answer travels.

Complaints, and carers

The Health and Community Services Complaints Act 2004 (SA) establishes the Commissioner and, importantly for this subject, states in s 24 who may complain. It is not limited to the consumer: a substitute decision-maker may complain, and so may another person where it would be unreasonable to expect the consumer to complain personally (s 24(da) and (g)). Where a client is too unwell or too dependent to complain about their own care, that is the provision to find.

The Carers Recognition Act 2005 (SA) defines a care relationship in s 5(1) by reference to five reasons, and excludes paid, volunteer and training relationships in s 5(2). Section 6(1) obliges an applicable organisation to take all practicable measures to ensure its employees and agents have an awareness and understanding of the Carers Charter. As with every carers recognition statute in Australia, the obligations run to organisations, not rights to carers — do not advise a carer that the Charter gives them something to enforce.

A working order for a South Australian problem

1. Split the jurisdiction first. Funding, provider registration, quality standards and reportable incidents are Commonwealth. Capacity, consent, authorisation, safeguarding and complaints are South Australian.
2. Establish capacity under the Guardianship and Administration Act 1993, applying s 5 and remembering s 7(2)(d) of the Advance Care Directives Act 2013 — an adverse outcome does not establish incapacity.
3. Look for an existing instrument before asking for an order: an advance care directive, an enduring power of attorney. A tribunal order is the last resort, not the first.
4. Match the instrument to the decision. Health care refusals bind under s 19(1); property and money need either an enduring power of attorney under the 1984 Act or a SACAT administration order; s 13 stops the directive doing the power of attorney's work.
5. For restrictive practices, name both the Commonwealth rule and Part 5A, and identify which officer authorises.
6. For abuse, apply the s 3(1) and s 4(1) definitions, then ask about consent under s 28 before assuming an intervention is available.
7. For a complaint, check s 24 for standing before concluding the client cannot complain.

Self-check

• Have I said which government's law answers each part of the question?
• Have I checked for an existing directive or power of attorney before proposing a SACAT application?
• Have I applied the least-restrictive principle in s 5(d) to the order I am proposing?
• Have I treated the advance care directive as binding only as to refusals?
• Have I named both the Commonwealth rule and the South Australian Part for a restrictive practice?
• Have I remembered that South Australian adult safeguarding is consent-based and voluntary to report?