Disability inclusion and services in New South Wales 

This article states the law of New South Wales. The Disability Inclusion Act 2014 (NSW) is not the New South Wales counterpart of a disability service regulation statute, and reading it as one produces the wrong answer¹. Its objects include providing "for responsibilities of the State during and following the transition to the National Disability Insurance Scheme" (s 3(f)), and what it retains for the State is planning, inclusion and advice rather than the regulation of providers. The prior question is therefore which layer a problem is really about, because the regulation of NDIS providers in New South Wales is Commonwealth work.

What the Act sets out to do

Section 3 states six objects: to acknowledge that people with disability have the same human rights as other members of the community and that the State and community have a responsibility to facilitate their exercise; to promote independence and social and economic inclusion; to enable people with disability to exercise choice and control in pursuing their goals and in the planning and delivery of supports and services; to provide safeguards in relation to the delivery of supports and services; to support, so far as reasonably practicable, the purposes and principles of the Convention on the Rights of Persons with Disabilities; and to provide for the State's responsibilities during and after the NDIS transition.

Object (d) is worth noting precisely. The Act speaks of providing safeguards, but the operative provisions that follow are about planning and standards rather than about authorising or prohibiting particular practices.

The disability principles

Section 4 states the disability principles. People with disability have an inherent right to respect for their worth and dignity; the right to participate in and contribute to social and economic life and to be supported to develop their skills and experience; the right to realise their physical, social, sexual, reproductive, emotional and intellectual capacities; and the right to respect for cultural or linguistic diversity, age, gender, sexual orientation and religious beliefs, and to privacy and confidentiality.

Section 4(5) is the one most likely to be argued. People with disability have the same rights as other community members "to make decisions that affect their lives (including decisions involving risk) to the full extent of their capacity to do so", and to be supported in making those decisions if they want or require support. The express inclusion of decisions involving risk is a dignity-of-risk provision and sits alongside the supported decision-making limb.

Section 6 governs how the principles operate — they are matters to which regard is had rather than free-standing entitlements — and s 5 addresses the needs of particular groups.

Planning obligations

The Act's main operative machinery is planning. Section 10 requires a State Disability Inclusion Plan, reviewed and remade under s 11.

Section 12(1) then obliges each public authority, from the day prescribed by the regulations, to prepare and make a disability inclusion action plan setting out the measures it intends to put in place, in connection with the exercise of its functions, so that people with disability can access general supports and services available in the community and participate fully in it.

In preparing the plan, the authority must consult with people with disability and have regard to any guidelines issued under s 9, and may consult others including the Disability Council (s 12(2)). Sections 13 and 14 provide for reporting on implementation and for review and remaking.

The obligation is thus directed at the accessibility of mainstream public services, not at the disability service system. That is a deliberate division of labour.

The Disability Council, standards and assistance

Part 3 continues the Disability Council of New South Wales (s 15) and confers its functions (s 17). Part 4 deals with standards and money: s 20(1) permits the regulations to make provision for disability service standards relating to the provision of supports and services, which the Secretary must make publicly available (s 20(2)); and s 21(1) allows the Secretary to provide financial assistance to a government department, local council or other entity to promote the Act's objects, conditionally or unconditionally.

Section 22 allows the Secretary to require information, and s 23 protects a person who gives it.

What is not here, and why it matters

This Act contains no restrictive practices authorisation scheme. A search of the whole Act returns no occurrence of the term. That is a structural difference from South Australia, where Part 6A of the Disability Inclusion Act 2018 (SA) supplies a detailed authorisation regime, splits practices into levels, and creates a Senior Authorising Officer and Authorised Program Officers.

The significance is practical. The Commonwealth NDIS rules make it a condition of a provider's registration that a regulated restrictive practice be authorised in accordance with the relevant State or Territory's authorisation process, but they do not supply that process. In South Australia the process is in the statute. In New South Wales it is not in this statute, so a student answering on a New South Wales restrictive practice must identify the applicable authorisation source rather than reaching for this Act because its name resembles South Australia's.

Two Acts sharing almost the same title do very different work, and that is the single most useful thing to take from reading them together.

Applying this in a problem question

1. Ask whether the problem concerns provider regulation or State planning, and send provider regulation to the Commonwealth scheme.
2. For a public authority's obligations, apply s 12 and check the consultation requirement in s 12(2)(a).
3. Where autonomy is in issue, argue s 4(5), including the express reference to decisions involving risk.
4. Treat the principles as matters to which regard is had under s 6, not as free-standing rights.
5. For standards, cite the regulations made under s 20(1) rather than the Act.
6. Do not cite this Act for restrictive practices authorisation; identify the applicable source instead.

Self-check

• Have I distinguished State planning obligations from Commonwealth provider regulation?
• Have I applied s 12 to the right body, namely a public authority?
• Have I argued s 4(5) where dignity of risk is in issue?
• Have I avoided assuming this Act mirrors the South Australian statute of similar name?