Disability Inclusion Act 2018

The Act defines disability broadly to include long‑term physical, psycho‑social, intellectual, cognitive, neurological or sensory impairment, or a combination, which in interaction with various barriers may hinder full and effective participation on an equal basis with others (s 3(1)). A barrier includes something physical, architectural, technological, attitudinal, based on information or communications, or resulting from a policy or practice. State authority covers administrative units under the Public Sector Act 2009, prescribed agencies or instrumentalities of the Crown, local councils, and any person or body declared by regulation, but excludes those declared as excluded (s 3(1)). The central assessment unit is the unit established under the Child Safety (Prohibited Persons) Act 2016 (s 3(1)). NDIS worker check clearance and NDIS worker check exclusion are defined under Part 5A (ss 18A, 18B). A disqualified person is someone found guilty of a disqualification offence committed as an adult (s 18B(1)). A presumptively disqualified person includes someone found guilty of a presumptive disqualification offence or where a certain mental competence finding has been made (s 18B(3)). Risk assessment is an assessment and determination by the central assessment unit as to whether a person poses a risk of harm to people with disability; the risk must be real and appreciable but need not be likely or significant (s 18M). Restrictive practice adopts the meaning from the NDIS Rules (regulated restrictive practices: seclusion, chemical, mechanical, physical and environmental restraint) (s 23B(1)). The Act distinguishes level 1 and level 2 restrictive practices by regulation (s 23B). Detention is defined inclusively to cover direct or indirect curtailment of the ability to leave premises, including by withholding information or refusing access to means of leaving (s 23C). Authorised Program Officers are authorised by the Senior Authorising Officer in respect of a prescribed NDIS provider (s 23L). The Senior Authorising Officer is appointed by the Chief Executive (s 23I). Prescribed NDIS providers include registered NDIS providers who use or are likely to use restrictive practices, and other prescribed persons (s 23A(2)). Prescribed persons are NDIS participants, persons who receive NDIS supports, or other prescribed classes (s 23A(3)). The Act also defines community visitor under Part 7 (by regulation), screening check under Part 6 (not yet in force), and corresponding law for the purposes of Part 5A (s 18A).

The Act imposes obligations on, and confers benefits in favour of, a broad range of persons and bodies. People with disability are the primary beneficiaries of the objects and principles set out in Part 2, which must be observed in the operation, administration and enforcement of the Act (s 9(6)). The Act explicitly requires the Minister to seek the views of people with disability regarding the operation of the Act and to establish a committee that should include a diverse range of people with lived experience (ss 7A, 7B). State authorities - including SA Government administrative units, prescribed agencies, and local councils - must prepare and review disability access and inclusion plans (s 16), report annually to the Chief Executive on their operation (s 17), and have regard to the State Disability Inclusion Plan (s 13(11)). NDIS employers are persons who engage a person to do NDIS work (s 18A(1)). They must verify that a prospective worker holds a valid clearance and is not a prohibited person (s 22A in Part 6, though Part 6 is uncommenced; Part 5A imposes obligations directly on applicants and holders). NDIS workers (applicants for or holders of clearances) are affected by the screening regime: they must apply, consent to inquiries, undergo risk assessment, and comply with information requests (ss 18G, 18W). Prescribed NDIS providers (registered NDIS providers using restrictive practices) must comply with Part 6A: they may only use restrictive practices if no other way to minimise risk of harm, and must have authorisation from an Authorised Program Officer or the Senior Authorising Officer (ss 23M-23O). Employers generally (under Part 6, uncommenced) must not employ a prohibited person in a prescribed position and must ensure screening checks are conducted every five years (ss 21, 22, 22A, 22B). Reporting bodies (prescribed State authorities, registration or licensing authorities, or other employers) must notify the central assessment unit of findings of conduct requiring risk assessment (s 18ZD). Community visitors may be appointed under regulations (s 24). The Crown is bound and is liable for offences, with penalties applicable to a body corporate (s 5). Victims of victimisation under ss 30 have a right to seek remedies either in tort or under the Equal Opportunity Act 1984 (s 30(3)).

Duties on the Minister: to seek views of people with disability (s 7A), establish a committee (s 7B), prepare the State Disability Inclusion Plan (s 13), cause a review every four years (s 15), publish restrictive practices guidelines (s 23H), and cause a review of the Act after the third anniversary of commencement (s 32). Duties on the Chief Executive: to prepare guidelines, monitor compliance of State authorities, report on the State Disability Inclusion Plan (s 10), and provide an annual report on Part 6A (s 23ZE). Duties on State authorities: to prepare a disability access and inclusion plan (s 16), consult people with disability, call for submissions, and publish the plan (s 16(4), (7)); to report annually on its operation to the Chief Executive by 30 April (s 17); and to review the plan at least every four years and within six months of any variation to the State plan (s 18). Duties on NDIS employers: to verify that workers hold a clearance (Part 6 provisions, uncommenced, but Part 5A provides for notification of outcomes to notifiable persons). Under Part 5A, an employer must be notified by the central assessment unit of exclusions or cancellations (ss 18L(3), 18S(7)). Duties on applicants for NDIS worker check clearances: to provide identity proof, authorise inquiries, provide information, and may be required to provide a photograph (s 18G). They must not apply if they currently hold a clearance or are subject to a ban (s 18H). Rights of applicants and clearance holders: to be notified of decisions and reasons (s 18L), to make submissions before an exclusion or cancellation (except for disqualified persons) (ss 18J(2), 18S(3)), to seek review of reviewable decisions in SACAT (s 18ZI). The right of review is limited: non‑reviewable decisions include exclusions or cancellations for disqualified persons, or where the person is presumptively disqualified due to pending charges (s 18ZI(5)). For suspension, a review cannot be sought until the suspension has been in force for at least six months (s 18ZI(3)). Duties on prescribed NDIS providers and Authorised Program Officers: restrictive practices may only be used as a last resort, for the shortest time, and in accordance with the restrictive practices guidelines (ss 23G, 23M). Authorisation from an Authorised Program Officer requires a behaviour support plan prepared in consultation with the person, among other conditions (s 23N). The Senior Authorising Officer may authorise level 1 or 2 restrictive practices (s 23O). Right to internal review and SACAT review: a person aggrieved by a decision of an Authorised Program Officer or prescribed NDIS provider under Part 6A may apply to the Senior Authorising Officer for internal review within 30 days (s 23Y), and then to SACAT for certain reviewable decisions (s 23Z). Duty of reporting bodies: to notify the central assessment unit of findings that constitute circumstances requiring a risk assessment (s 18ZD). Rights of people with disability: to be free from victimisation; s 30 creates a remedy for anyone who causes detriment on the ground that a person has provided or intends to provide information under the Act. Duty of confidentiality: personal information obtained in the administration of the Act must not be disclosed except as authorised (s 29).

The Act creates multiple criminal offences with significant maximum penalties. Under Part 5A: providing false or misleading statements in information carries a maximum penalty of $20,000 (s 18ZM). Failing to comply with an enforcement notice (a direction to provide information) carries $50,000 (s 18X(4)). A person who uses an NDIS worker check clearance obtained as a volunteer to perform paid work without paying the prescribed fee commits an offence punishable by $5,000 (expiation fee $315) (s 18ZJ). Under Part 6 (uncommenced): a prohibited person who works with people with disability is liable to $50,000 or one year imprisonment (s 21(3)). An employer who employs a prohibited person in a prescribed position faces $50,000 (natural person) or $120,000 (body corporate) or imprisonment for 1 year (s 21(4)). Working without a current screening check carries $20,000 for a first or second offence and $50,000 or 1 year for third or subsequent (s 22(1)). Failing to take required steps before employing a person in a prescribed position carries $50,000 (s 22A(1)). Failing to ensure a screening check every five years or failing to verify carries $50,000 (s 22B). Employers failing to notify the central assessment unit of assessable information or prohibition under another law face $25,000 (s 22C). Under Part 6A: hindering or obstructing the Senior Authorising Officer or Authorised Program Officer carries $5,000 (s 23ZB). Making false or misleading statements under Part 6A carries $10,000 (s 23ZC). Under Part 10: breach of confidentiality carries $10,000 (s 29(1)). Using disclosed information for another purpose carries $10,000 (s 29(3)). An act of victimisation personally committed is an offence punishable by $10,000, and proceedings may only be commenced by a police officer or an approved person (s 30(6)-(7)). The Governor may by regulation create offences with fines up to $50,000 and expiation fees up to $315 (s 33). The Crown is liable for offences; penalty for the Crown is that applicable to a body corporate (s 5). Enforcement mechanisms include the central assessment unit’s power to suspend or cancel clearances (ss 18R, 18S), to terminate applications for non‑provision of information (s 18W(2)), and to issue enforcement notices for information from third parties (s 18X(2)). Failure to comply with an enforcement notice is an offence. The Senior Authorising Officer may require information from State authorities and others; non‑compliance by a State authority can be reported to the Minister (s 23Q(3)), and non‑compliance by other persons is an offence (s 23R(3)). Civil or criminal liability is excluded for acts done in good faith and without negligence by the central assessment unit, persons exercising powers under Part 5A, the Crown, the Senior Authorising Officer, Authorised Program Officers, prescribed NDIS providers and owners/occupiers of premises under Part 6A (ss 18ZL, 23ZA). Section 18ZK provides that a court or tribunal must treat the welfare of people with disability as the paramount consideration when exercising jurisdiction over an employee’s statutory rights in connection with the Part, and ousts jurisdiction to order damages or compensation for removal from employment due to the operation of Part 5A.

Section 4 states that the provisions of the Act are in addition to and do not derogate from any other Act or law, except where the contrary intention appears. The Act binds the Crown in right of South Australia and, to the extent of legislative power, the Crown in all other capacities (s 5). Part 2 (objects and principles) does not create legally enforceable rights or affect existing rights or liabilities (s 6). The Act supports the United Nations Convention on the Rights of Persons with Disabilities and other relevant international human rights instruments (s 7). In relation to the NDIS, Part 5A operates alongside the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act). The definition of NDIS work picks up requirements under the NDIS Act for a person to hold a clearance (s 18A). The central assessment unit may share information for the purposes of a national register or database established under the NDIS Act (s 18ZE). The NDIS Quality and Safeguards Commission (NDIS Commission) is defined as an authorised person and may receive notifications under Part 6A (s 23S). Part 6A provides that it does not limit the operation of the NDIS Rules (National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018) or any behaviour support plan (s 23F(1)-(2)). Part 6A is in addition to and does not derogate from the Mental Health Act 2009, the Guardianship and Administration Act 1993, or any other Act authorising restrictive practices (s 23F(3)). The use of chemical restraint remains subject to the Controlled Substances Act 1984 (s 23F(4)). Part 6A does not authorise the use of prohibited restrictive practices which the Governor may prohibit by regulation (s 23D). The interaction with the Child Safety (Prohibited Persons) Act 2016 is evident: the central assessment unit and Registrar are defined by reference to that Act (s 3(1)), and the records management system under Part 6 may be combined with that under the Child Safety Act (s 22D(7)). The regulations under Part 6 may recognise NDIS worker check clearances or exclusions as screening checks or prohibition notices (s 23(2)(da)). Information‑sharing under Part 9 does not affect the Public Sector (Data Sharing) Act 2016 (s 28). Transitional provisions in Schedule 2 convert certain pending applications for assessment of relevant history under the repealed Disability Services Act 1993 into applications for NDIS worker check clearances, and recognise certain assessments within three years as clearances (subject to cancellation conditions).

The Disability Inclusion Act 2018 (Act No 1 of 2018) received assent on 14 June 2018 and commenced on 1 July 2018, except for certain provisions. Schedule 1 Part 5 (repeal of the Disability Services Act 1993) commenced on 1 February 2021. Part 6 (Screening of persons working with people with disability) and Schedule 1 Part 5 remain uncommenced at the date of the published version. The Act was amended by the Statutes Amendment (Screening) Act 2019 (No 9 of 2019), which inserted Part 5A (NDIS worker check clearances) effective 1 February 2021, and inserted ss 22A-22E and amended ss 19 and 23 effective 16 May 2021. The Disability Inclusion (Restrictive Practices,NDIS) Amendment Act 2021 (No 18 of 2021) inserted Part 6A (Restrictive practices) effective 30 May 2022. The Disability Inclusion (Review Recommendations) Amendment Act 2024 (No 22 of 2024) made numerous amendments effective 19 August 2025: it expanded the definition of barrier, inserted new sections 7A and 7B (Minister to seek views and establish a committee), amended the objects and principles (including new subsections addressing persons with significant intellectual disability (9(5a)), LGBTQIA+ (9(5b)), and regional communities (9(5c)), required the State Disability Inclusion Plan to contain provisions addressing UN Convention principles, strategies for diverse groups, priority areas and measurable outcomes (s 13(3)(ba)), amended consultation requirements (accessible documents), inserted a requirement for annual report to include details of systemic issues (s 14(3)), and required diversity strategies in disability access and inclusion plans (s 16(3)(da)) and annual reports to address risks and principles for those groups (s 17(1a)). The Criminal Law Consolidation (Mental Competence) Amendment Act 2025 (No 12 of 2025) amended s 18A(4) effective 14 July 2025 to update references to findings under Part 8A of the Criminal Law Consolidation Act 1935.

The Act itself does not cite any judicial decisions. However, the Act confers jurisdiction on the South Australian Civil and Administrative Tribunal (SACAT) to review certain decisions. Under Part 5A, reviewable decisions are listed in s 18ZI(5) and include decisions to issue an exclusion (where the person is not a disqualified person), to terminate an application, to suspend a clearance (after six months), to cancel a clearance (not at holder’s request), and any other decision declared by regulation to be reviewable. Non‑reviewable decisions include exclusions or cancellations where the person is a disqualified person or a presumptively disqualified person due to pending charges. The application for review must be made within 14 days (or longer if special circumstances and no unreasonable disadvantage) (s 18ZI(2), (4)). Under Part 6A, decisions of the Senior Authorising Officer are reviewable by SACAT (s 23Z), with a 30‑day application period extendable only in special circumstances. Internal review by the Senior Authorising Officer is available first (s 23Y). There are no reported cases within the text of the Act. Litigation history is likely to be found in SACAT decisions and appeal decisions in the Supreme Court of South Australia, but the Act itself does not name any case. Practitioners should therefore examine SACAT decisions under s 18ZI and s 23Z for interpretation of risk assessment, disqualification offences, and procedural fairness.

Several provisions may trap the unwary. First, Part 2 creates no legal rights: the objects and principles, the State Disability Inclusion Plan and disability access and inclusion plans are expressions of policy only and do not create legally enforceable rights or entitlements (s 6). This means a person cannot sue for a breach of the principles alone. Second, criminal intelligence and protected information decisions: the central assessment unit may make decisions based on information classified by the Commissioner of Police as criminal intelligence or by the Registrar as protected information, and need not provide grounds other than that it would be contrary to the public interest to allow the person to work with people with disability (ss 18C, 18D). In proceedings, the court must maintain confidentiality of such information on application, and may take evidence by affidavit in private. This severely limits the ability to challenge such decisions. Third, presumption of risk of harm for presumptively disqualified persons: a person found guilty of a presumptive disqualification offence is presumed to pose a risk of harm; the central assessment unit need not consider further information; the person must satisfy the unit that the offence should be disregarded or that exceptional circumstances exist to overcome the presumption (s 18K). The definition of “found guilty” in s 18A(4) includes objective element findings in mental competence proceedings for disqualification offences under s 18B(2) - but such findings are specifically excluded for the disqualified person category, yet included for presumptive disqualification (s 18B(3)(b)). This is a nuanced distinction. Fourth, suspension of clearance cannot be reviewed immediately: an application for review of a suspension decision cannot be made until the suspension has been in force for at least six months (s 18ZI(3)). Fifth, certain decisions are non‑reviewable: exclusions and cancellations for disqualified persons, or for presumptively disqualified persons with pending charges, cannot be reviewed (s 18ZI(5)(a)-(b)). This means a person charged with a disqualification offence cannot apply for review until the charge is resolved, but they are presumptively disqualified under s 18A(5) (person charged with a disqualification offence taken to have been found guilty for certain purposes). Sixth, Part 6 is uncommenced: the screening scheme for general workers with disability (not NDIS workers) is not yet in force, meaning ss 21-23E and the repeal of the Disability Services Act 1993 are not operative. Practitioners should not rely on those provisions until a proclamation brings them into force. Seventh, restrictive practices authorisation triggers: a prescribed NDIS provider may only use restrictive practices if no other way to minimise the risk of harm, and the use must be consistent with a behaviour support plan prepared in consultation with the person (s 23N). Using restrictive practices as punishment, for convenience, or to address inadequate staffing is expressly prohibited (s 23M(1)). However, the Act permits use without consent and even despite refusal (s 23M(5)). Eighth, offence of failing to comply with an enforcement notice carries a $50,000 penalty (s 18X(4)); this applies to a person who fails to provide information required by the central assessment unit after a second notice. Ninth, victimisation arises only if detriment is caused on the ground that a person has provided or intends to provide information; a false allegation made in bad faith does not constitute victimisation (s 30(2)). Proceedings for the offence can only be commenced by a police officer or approved person (s 30(7)). Tenth, transitional provisions: Schedule 2 converts pending applications for assessment of relevant history and recognises certain completed assessments within three years as clearances, but those deemed clearances are cancelled if the person becomes a prohibited or disqualified person, if a new clearance is obtained, or after three years from the assessment date (Schedule 2, clause 3(2)).

Compliance obligations differ depending on the actor. For State authorities, compliance begins with preparing a disability access and inclusion plan (DAIP) that meets the requirements of s 16(3): measures to ensure access to mainstream supports and services, explanation of how the authority will give effect to Part 2 objects and principles and the State Disability Inclusion Plan, and strategies with measurable outcomes covering built environs, information and communications, addressing specific needs, and employment. The DAIP must also include strategies for diverse groups (s 9(2)-(5c) persons) as required by s 16(3)(da). In preparing the DAIP, the authority must comply with guidelines published under s 12(1)(a), consult with people with disability and representative bodies, call for public submissions, and ensure consultation documents are accessible (s 16(4)). The DAIP must be published on a website in accessible format (s 16(7)). Each year by 30 April the authority must report to the Chief Executive on the operation of the DAIP, including the extent of implementation and how it is addressing the risks and principles for the diverse groups (s 17(1), (1a)). The DAIP must be reviewed at least once every four years, and provided to the Minister (s 18). If the State Disability Inclusion Plan is varied, the authority must review its DAIP within six months and vary it if necessary to ensure consistency (s 18(3)). For NDIS employers, the key obligations are in Part 5A. An employer must ensure that any person they engage to do NDIS work holds a valid clearance. Employers may verify this through the central assessment unit’s information‑sharing powers (s 18ZB). If an employer becomes aware that a clearance holder is suspended or cancelled, or that the person is a disqualified person, they must not continue to employ them in NDIS work. The employer is a “notifiable person” to whom the central assessment unit may send notices (s 18l(3)). For applicants and clearance holders, compliance requires applying in the approved form, providing identity proof, authorising inquiries and disclosure, and providing ongoing information when requested (s 18G, 18W). Failure to provide information can lead to termination or cancellation (s 18W(2)). If the person becomes a presumptively disqualified person, they must undergo a risk assessment; they can rebut the presumption of risk by satisfying the central assessment unit that the offence should be disregarded or exceptional circumstances exist (s 18K). For prescribed NDIS providers covered by Part 6A, compliance requires a careful framework. The provider must ensure that restrictive practices are only used as a last resort, for the shortest period, in the least restrictive way, consistent with human rights, proportionate to harm, and in accordance with the restrictive practices guidelines (s 23G). The provider must have a behaviour support plan for the person that contemplates the restrictive practice (s 23N(1)(e)). The provider must have authorisation from an Authorised Program Officer (for level 1) or the Senior Authorising Officer (for level 1 or 2). Authorisations must be in writing, set out the kinds of practices, any conditions, and the expiry date (ss 23N(2), 23O(3)). The provider must comply with the restrictive practices guidelines when using the practices (ss 23N(4), 23O(5)). Notification must be given after use to the person, their guardian, or parent as appropriate (ss 23N(8), 23O(8)). Providers must not use restrictive practices as punishment or for convenience, or to address staffing inadequacies (s 23M(1)). They may be assisted by others and may use reasonable force as a last resort (s 23M(3)-(4)). Providers should keep records as required by regulation and cooperate with information requests from the Senior Authorising Officer (ss 23Q-23R). For reporting bodies prescribed under s 18ZD, compliance requires notifying the central assessment unit of findings of conduct requiring risk assessment, in the form determined, and maintaining records as required. For any person providing information under the Act, they must not make false or misleading statements (ss 18ZM, 23ZC). They must also respect confidentiality and not use disclosed information for another purpose (s 29(3)). For the Minister, compliance includes establishing a committee with diverse lived experience (s 7B), publishing guidelines (s 12), preparing the State Disability Inclusion Plan with consultation and accessible documents (s 13), seeking views on the Act’s operation (s 7A), publishing restrictive practices guidelines (s 23H), and causing a review of the Act (s 32).