Restrictive practices authorisation in South Australia 

This article states the law of South Australia. 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, Part 6A of the Disability Inclusion Act 2018 (SA) does¹. The prior question is which level the practice falls into, because that decides who may authorise it.

Who and what the Part covers

Section 23A(1) applies Part 6A to the use of restrictive practices by a prescribed NDIS provider in relation to a prescribed person. A prescribed NDIS provider is a registered NDIS provider who uses, or is reasonably likely to use, restrictive practices in delivering NDIS supports, together with any other registered provider or class prescribed by regulation, and any other person prescribed who provides services to NDIS participants without being registered. A prescribed person is an NDIS participant, a person who receives NDIS supports, or a person prescribed by regulation.

Section 23A(4) then sets the frame: "Nothing in this Part authorises the use of restrictive practices other than in accordance with this Part." The Part is the source of authority, and departing from it means there is no authority at all.

Two levels, two authorisers

The scheme turns on a classification made by regulation rather than by the Act. A level 1 restrictive practice is one declared by the regulations to be level 1, and expressly is not a practice consisting of or involving the detention of a person. A level 2 restrictive practice is a practice, or combination of practices, defined separately.

Authorisation is split accordingly. Under s 23N an Authorised Program Officer — a person authorised in respect of a particular prescribed NDIS provider under s 23L — may authorise the use of level 1 restrictive practices. Under s 23O the Senior Authorising Officer may authorise the use of level 1 or level 2 practices. Section 23J(1) confirms the division: the Senior Authorising Officer's functions include authorising specified persons to authorise level 1 practices by a provider, and authorising the use of level 1 or 2 practices directly.

Because detention is excluded from level 1, a practice involving detention cannot be authorised by a provider's own Authorised Program Officer. That is the structural safeguard in the scheme and the point most likely to decide a problem.

Section 23D allows the Governor by regulation to prohibit restrictive practices of a specified kind, and s 23D(2) provides that nothing in the Part authorises the use of a prohibited restrictive practice. Section 23P provides for revocation of an authorisation.

What may never be authorised

Section 23M(1) states two purposes for which restrictive practices are never authorised under the Part: as a punishment or for the convenience of others, and to address inadequate levels of staffing, equipment or facilities. The second is significant in practice, because resourcing pressure is a common explanation for restrictive practice use and the Act removes it as a justification.

Section 23M(2) adds a necessity requirement: a provider may only use restrictive practices if, in the provider's opinion, there is no other way reasonably available in the circumstances to minimise the risk of harm or prevent further harm. Section 23M(4) permits reasonable force in the course of using an authorised practice, but as a last resort and only where reasonably necessary.

Consent, and the contrast with adult safeguarding

Section 23M(5) is blunt and should be read alongside South Australia's adult safeguarding scheme. It provides, to avoid doubt, that restrictive practices may be used in relation to a prescribed person without the consent of that person, or despite a refusal to consent. Section 23M(6) confirms the Part applies to a prescribed person who is a child.

That is the opposite starting position from the Ageing and Adult Safeguarding Act 1995 (SA), under which a safeguarding response should not be undertaken unless the adult consents or SACAT authorises it. The two South Australian schemes take different views of the same person's refusal, and identifying which scheme governs is therefore not a formality.

How Part 6A sits with everything else

Section 23F is a set of interaction rules. Nothing in the Part limits the operation of the Commonwealth National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 or any other rules under the National Disability Insurance Scheme Act 2013 (s 23F(1)), or the operation of a behaviour support plan (s 23F(2)). The Part is in addition to, and does not derogate from, the Mental Health Act 2009 (SA), the Guardianship and Administration Act 1993 (SA) or any other Act or law authorising restrictive practices (s 23F(3)). Nothing in it limits the Controlled Substances Act 1984 (SA), and a drug may be administered in the course of a restrictive practice only by a person authorised under that Act (s 23F(4)).

Section 23E reinforces the point from the other direction: the Part does not authorise a practice where a condition or limitation on the person's authorisation prevents it, or where the person does not hold an authorisation required under any other Act or law. Authorisation under Part 6A is necessary but not sufficient.

Applying this in a problem question

1. Confirm the provider is a prescribed NDIS provider and the person a prescribed person under s 23A.
2. Classify the practice by level from the regulations, and check first whether it is prohibited under s 23D.
3. Ask whether the practice involves detention — if so it cannot be a level 1 practice and an Authorised Program Officer cannot authorise it.
4. Apply s 23M(1) to exclude punishment, convenience and resourcing as purposes, then s 23M(2) for necessity.
5. Do not treat the person's refusal as decisive; s 23M(5) addresses it expressly. Keep this distinct from the adult safeguarding scheme.
6. Check s 23E and s 23F for any other authorisation required, and cite the Commonwealth rules separately for the provider's registration condition.

Self-check

• Have I classified the practice by level, and checked whether it involves detention?
• Have I identified the correct authoriser for that level?
• Have I applied the s 23M(1) purpose exclusions, including inadequate staffing?
• Have I kept this scheme distinct from the adult safeguarding consent model?