Disability Inclusion Regulations 2019

The central concept is the State Disability Inclusion Plan, a whole of government document required by section 13 of the Act. Regulation 5 prescribes that the State Plan must contain provisions setting out whole of government policies and strategies to implement the United Nations Convention on the Rights of Persons with Disabilities and any other relevant international human rights instruments affecting people with disability, as in force from time to time. This gives the UNCRPD a static reference point but incorporates future amendments automatically through the words “in force from time to time”. The State Plan must also set out strategies addressing the needs of persons referred to in section 9(2) to (5) of the Act: those categories likely cover people with disability across different domains (the Act is not provided but the regulations reference them repeatedly). Additionally, the State Plan must specify priority areas for improvement and measurable outcomes for each priority area. This is a classic accountability framework: setting targets and then requiring reporting against them.

The second core concept is the disability access and inclusion plan, which each State authority must prepare under section 16 of the Act. Regulation 8 prescribes that these plans must contain provisions setting out strategies to ensure that the needs of the section 9(2) to (5) persons are properly addressed. This is a narrower content requirement than for the State Plan; agency plans do not need to reference international instruments, set priority areas, or specify measurable outcomes, though nothing prevents them from doing so voluntarily. Regulation 10 allows a single plan to cover more than one local council, provided the lead council takes reasonable steps to keep residents in each affected council area informed.

Consultation is a major concept. Regulations 6 and 9 set out mandatory steps for consulting with people with disability, their families and carers, and representative bodies. Both require the responsible body to prepare consultation documentation, publish it on a website in an accessible form, circulate public notice of that fact in accessible form, undertake consultation, call for public submissions, and have regard to submissions made within the specified period. The Minister for the State Plan has more discretion: the Minister decides what documentation is necessary, what website to use, the manner of consultation, and the submission period. For State authorities, regulation 9(1)(c) requires consultation to be undertaken in accordance with any guidelines published under section 12(1)(a) of the Act - that imports an additional layer of direction from the Minister.

The concept of variation is also important. Regulations 7 and 11 state that variations of plans must generally follow the same consultation process as the original plan. However, both provide a list of exceptions where consultation is not required: to ensure consistency with an Act or law of the State or Commonwealth, to keep consistency with the State Plan (for agency plans only), to remove or replace information no longer correct, to make changes of form that do not alter substantive effect, or to correct errors. In those cases, the Minister or State authority may vary by notice in the Gazette (for the State Plan) or by other means (for agency plans). Public notice of variations that do require consultation must be circulated in accessible form within a reasonable time after the variation takes effect.

Finally, exemptions under regulation 12 are a significant concept. For the 2023 financial year, the Chief Executive and State authorities are exempt from the standard annual reporting obligations under sections 14(1) and 17(1) of the Act respectively, but must instead prepare a report for the calendar year 1 January to 31 December 2023, due by 30 June 2024. More notably, regulation 12(4) exempts State authorities from the section 18 review requirement entirely for a period beginning on 7 March 2024 (commencement of the regulation) and ending when a new State Plan is published in the Gazette or four years later, whichever is sooner. This creates a potential gap: agencies may not have to review their plans for up to four years regardless of changed circumstances, provided no new State Plan is adopted.

The regulations directly affect the Minister responsible for the Act, the Chief Executive of the administering department, and all State authorities as defined in section 3(1) of the Act. The definition is expanded by regulation 4, which allows the Minister by notice in the Gazette to prescribe additional agencies, instrumentalities, persons or bodies as State authorities, and also to exclude persons or bodies from that definition. This is a broad delegation: the Minister can decide unilaterally which public or quasi public entities must prepare disability access and inclusion plans, with no parliamentary oversight beyond the Gazette notice. State authorities include government departments, statutory corporations, local councils, and any other entity the Minister designates. Local councils are expressly addressed in regulation 10, which permits a single plan to cover multiple council areas.

People with disability, their families and carers, and organisations representing their interests are affected as participants in the consultation process. Their right is limited to making submissions and having the preparer “have regard” to those submissions; there is no right to require changes or to veto a plan. The regulations do not create any individual right to enforce the content of a plan or to challenge a plan in court. The phrase “have regard to” is a low duty: it does not require the decision maker to agree with or adopt any submission.

The public at large is affected insofar as plans are to be published on websites and in the Gazette, and public notice of consultation is required to be circulated in accessible form. However, the regulations do not require that the circulation method reach a wide audience; only that it be “circulated in a form that is accessible to people with disability”. That likely means using plain language, large print, audio, or other accessible formats, but says nothing about the reach or distribution channel. The Minister and State authorities have discretion over the website, the manner of consultation, and the submission period.

The Chief Executive is affected by the reporting obligations under the Act, from which partial exemptions are granted for 2023 and for the section 18 review. The regulatory exemption from section 18 is particularly significant because it relieves all State authorities from conducting a review of their disability access and inclusion plans until a new State Plan is adopted or four years elapse, whichever is sooner. That reduces compliance costs for agencies in the short term but also postpones any substantive evaluation of plan effectiveness.

Private businesses and non government organisations are not directly affected by these regulations, unless they are prescribed as State authorities by the Minister under regulation 4. That is possible: regulation 4(2) permits the Minister to specify “a person or body, or person or body of a class” as falling within the definition of State authority for the purposes of the Act. This could extend obligations to private entities that exercise public functions or receive public funding, though the text does not limit it to such cases.

The regulations impose duties on three categories of actors: the Minister, the Chief Executive, and each State authority. The Minister must prepare a State Disability Inclusion Plan that contains the provisions listed in regulation 5: whole of government strategies relating to the UNCRPD and other international instruments, strategies addressing section 9(2) to (5) persons, priority areas, and measurable outcomes. Before finalising the plan, the Minister must prepare consultation documentation, publish it on a website in accessible form, circulate public notice of that publication in accessible form, undertake consultation, call for public submissions, and have regard to any submissions received within the specified period (regulation 6). The Minister must also publish the final plan in the Gazette under section 13(6) of the Act. Any variation of the State Plan must generally follow the same process, except for permitted administrative variations listed in regulation 7(2) - consistency with law, correction of errors, removal of outdated information, or changes of form. The Minister must ensure public notice of non administrative variations is circulated in accessible form within a reasonable time after the variation takes effect.

State authorities have corresponding duties for their disability access and inclusion plans. Regulation 9 sets out the steps: prepare a draft plan, publish it on a website in accessible form, circulate notice of that in accessible form, undertake public consultation in accordance with any guidelines published under section 12(1)(a) of the Act, call for public submissions in a manner and form determined by the authority, and have regard to submissions made within the specified period. The authority must also prepare and provide to the Chief Executive a report setting out information required by the Chief Executive about the preparation process, including the number of submissions and recommendations adopted. The plan takes effect on the day it is published on the authority’s website (regulation 9(3)). Variations of agency plans follow the same consultation process, except for the five categories listed in regulation 11(2): consistency with law, consistency with the State Plan, removal of outdated information, changes of form, or correction of errors.

State authorities that are local councils preparing a single plan for multiple council areas must take reasonable steps to keep residents in each affected council area informed (regulation 10). This is a weaker obligation than full consultation; there is no requirement to seek submissions from all residents, only to “keep informed”. The standard of “reasonable steps” is not defined, leaving councils to judge what is proportionate.

Rights are sparse. People with disability, their families, carers, and representative bodies have the right to be consulted, but only to the extent the Minister or State authority determines. The regulations do not guarantee that every person who wishes to make a submission will have an opportunity to do so; the authority sets the period and the form. The right is essentially procedural: the authority must call for submissions and then “have regard” to those received. There is no right to reasons, no right to participate in the formulation of the draft, and no right to challenge a plan on the basis that consultation was inadequate. The only substantive right is that certain documents must be prepared and published in a form accessible to people with disability - a duty of accessibility rather than a right of individual access.

The regulations also grant exemptions, which are effectively duties not to do something that the Act would otherwise require. Regulation 12 exempts the Chief Executive and State authorities from certain reporting obligations for the 2023 financial year (shifting to a calendar year report) and exempts State authorities from the section 18 review until a new State Plan or four years. These exemptions are temporary and conditional.

The regulations themselves do not create any criminal penalties, infringement notices, or civil pecuniary penalties. There are no fines, no offences, and no enforceable duties that directly give rise to private rights of action. The enforcement scheme is located entirely in the Disability Inclusion Act 2018, which is not reproduced in the regulations. The regulations only specify how the Act’s planning and reporting obligations must be carried out; if those obligations are breached (for example, a State authority fails to publish a plan in accessible form or fails to have regard to submissions), the Act may provide remedies or sanctions, but those are not spelled out in the regulations.

The most likely enforcement mechanism is ministerial oversight. The regulations require State authorities to report to the Chief Executive on the plan preparation process, and the Chief Executive must report to the Minister on the operation of the State Plan. The Minister could use the power to issue guidelines under section 12(1)(a) of the Act, and presumably has the power to direct State authorities to comply. There is no indication of any independent oversight body or tribunal with jurisdiction over plan compliance.

Notably, the phrase “must have regard to” is a low threshold and is difficult to challenge in court. A court would likely require that the decision maker actually turned their mind to the submissions, but they are not required to accept them or give them any weight. This makes enforcement against inadequate consultation nearly impossible in practice.

The exemptions in regulation 12 also reduce the scope for enforcement. By relieving State authorities of the obligation to review their plans under section 18 for up to four years, the regulations remove a periodic compliance check that might otherwise have triggered corrective action.

No litigation history is mentioned in the source, and it is likely that no proceedings have been brought under these regulations given their procedural nature. The regulations are designed to guide administrative behaviour rather than create enforceable duties.

The regulations explicitly require the State Disability Inclusion Plan to give effect to the United Nations Convention on the Rights of Persons with Disabilities, as well as any other relevant international human rights instruments affecting people with disability, as in force from time to time. This means the State Plan must be consistent with Australia’s international law obligations under the UNCRPD, though the UNCRPD is not directly incorporated into domestic law. It also means that future amendments to the UNCRPD or other instruments automatically become relevant without requiring a regulatory amendment.

The regulations require plans to be consistent with “an Act or law of the State or the Commonwealth”. Both the State Plan and agency plans must be capable of being varied without consultation when necessary to maintain such consistency (regulations 7(2)(a) and 11(2)(a)). This is a broad savings provision: if any existing or future Act or regulation in South Australia or at Commonwealth level conflicts with a plan, the plan can be amended by notice without further public input. This gives primacy to other legislation over the planning framework. Similarly, agency plans must remain consistent with the State Disability Inclusion Plan, and can be varied without consultation for that purpose under regulation 11(2)(b).

The regulations also interact with the Local Government Act 1999 and the local government framework through regulation 10, which allows multiple councils to prepare a single plan provided they take reasonable steps to keep residents informed. This avoids duplicative planning but imposes an additional information obligation on councils.

The regulations sit alongside any guidelines published under section 12(1)(a) of the Act. State authorities preparing disability access and inclusion plans must undertake consultation in accordance with those guidelines (regulation 9(1)(c)). The guidelines themselves are not included in the regulations, so they add another layer of rules that affected bodies must follow. The regulations do not specify what happens if the guidelines conflict with the regulations; presumably the regulations prevail as subordinate legislation, but that is not stated.

The reference to “any other relevant international human rights instruments affecting people with disability” is open ended. It could encompass the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, or others, to the extent they affect people with disability. This imports substantial interpretive uncertainty, as the Minister must determine which instruments are “relevant” and how to give effect to them.

No interaction is specified with the National Disability Insurance Scheme Act 2013 or other disability service funding arrangements, though in practice these regulations would overlap with NDIS planning at the state level.

The Disability Inclusion Regulations 2019 were originally made on 7 February 2019 and commenced on that date. The legislative history shows four versions, with three variations and one scheduled future variation.

The first variation was in 2020 (Gazette 20 August 2020, No 257). This variation omitted regulation 2 (which originally contained the definition of “Act” or other provisions that were no longer needed) and substituted a new regulation 9(3), changed the text of regulation 11(1) and (2). The substituted regulation 9(3) now provides that a State authority’s disability access and inclusion plan has effect from the day it is published on a website in accordance with section 16(7) of the Act. The variations to regulation 11 appear to have refined the consultation exemption provisions for variations. The exact changes are not detailed, but the substituted provision indicates the plan now takes effect immediately upon website publication rather than on some later date.

The second variation was in 2024 (Gazette 7 March 2024, No 11). This inserted a new regulation 12, which provides exemptions from certain reporting obligations under the Act. Regulation 12(1) exempts the Chief Executive from the annual report on the State Plan for the 2022-23 financial year, requiring instead a report for the period 1 January to 31 December 2023. Regulation 12(2) provides the same exemption for State authorities regarding their individual reports on their disability access and inclusion plans. Regulation 12(3) exempts the Chief Executive from providing a summary report under section 17(2) of the Act for 2022-23, instead requiring a summary of any reports made under section 17(1) or regulation 12(2) during the 2023 calendar year. Regulation 12(4) exempts all State authorities from the section 18 review requirement for a period starting on 7 March 2024 and ending when a new State Plan is published in the Gazette or four years later, whichever is sooner. This exemption may have been introduced because the original State Plan was due for review but a new one had not been prepared.

The third variation was in 2025 (Gazette 23 October 2025, No 108), but it does not commence until 1 July 2026. The provisions varied are not listed in the legislative history table, only the commencement date is given. This means the regulations will have a further substantive change from mid 2026, but the content is not disclosed in the version provided. Users of these regulations need to check the current version after that date.

The original regulation 2 was omitted in 2020 under the Legislation Revision and Publication Act 2002. This is a standard housekeeping change where a definition provision is removed because the Act itself now defines the term or because a single definition is placed elsewhere.

Overall, the amendment history shows a relatively stable regulatory framework, with the most significant addition being the 2024 exemptions. The scheduled 2025 amendment may be substantive but its content is unknown from the provided source.

The source does not mention any litigation history concerning these regulations, and no reported cases are cited in the legislative history or any note. Given that the regulations are procedural and impose no direct penalties or enforceable rights, it is unlikely that any litigation has arisen. Any challenge to the adequacy of a plan or the consultation process would likely have to be brought under the parent Act or through judicial review of administrative action, but there are no known decisions. The regulations themselves do not create a right of appeal or review. The absence of litigation may reflect the low legal stakes: the regulations prescribe how plans are made, but failure to follow them may not give rise to a cause of action unless the Act provides for it. It is possible that no court has yet interpreted any of the key phrases such as “accessible to people with disability” or “have regard to”. This leaves room for future interpretive disputes, particularly around the scope of consultation and the standard for accessibility.

The regulations contain several provisions that could trip up unwary State authorities, local councils, or the Minister. First, the consultation obligations are highly discretionary. The Minister determines what documentation is necessary, the website for publication, the manner of consultation, and the submission period. A State authority may think it has complied by posting a draft on its main website and issuing a media release, but if that is not “accessible to people with disability” (e.g., not in plain language or not screen reader compatible), it could be non compliant. The phrase “accessible to people with disability” is not defined in these regulations; it may be defined in the Act or guidelines, but the regulations do not set any standards. This creates legal uncertainty.

Second, the “have regard to” duty is weak but still imposes a procedural obligation. Authorities must actually consider submissions, but they do not have to explain how or why they rejected them. However, if a challenge were made, the authority would need to show evidence that it did consider them, not merely acknowledge receipt. The regulations do not require a written response to submissions, but the report to the Chief Executive under regulation 9(4) must include information about submissions and recommendations adopted. That report is required only by the Chief Executive and does not need to be published, so there is limited transparency.

Third, the exemption from section 18 review in regulation 12(4) is a potential trap. An authority might assume it has no obligation to review its plan until 2030, but the exemption ends when a new State Plan is published in the Gazette, which could happen at any time. If a new State Plan is adopted in, say, 2026, the exemption ceases immediately, and the authority must then review its plan within whatever time frame the Act requires. Authorities should monitor the Gazette for new State Plans.

Fourth, the 2023 reporting exemption shifts the reporting period to a calendar year. An authority that prepared a report for the financial year ending 30 June 2023 may have done so unnecessarily, or may have missed the alternative deadline of 30 June 2024 for the calendar year report. The exemption applies automatically, but the authority must prepare the calendar year report anyway; it is not excused from reporting altogether.

Fifth, the definition of “State authority” can be expanded or contracted by the Minister by Gazette notice under regulation 4, with no public consultation required. An organisation that does not consider itself a State authority could suddenly be prescribed and become subject to the full planning obligations. Conversely, a body might be excluded and lose its obligations, but that would be rare.

Sixth, variations of plans that are purely administrative (correction of errors, removal of outdated information, changes of form) can be made without any consultation, but the line between a “change of form” and a change of substance is not drawn. An authority could attempt to repackage a substantive change as a form change to avoid consultation, risking legal challenge.

Seventh, the requirement in regulation 10 for a lead council preparing a single plan for multiple areas to take “reasonable steps to keep the residents in each affected council area informed” is vague. It does not require consultation or even notification; it is merely an information duty. Residents may not know a plan covering their area is being developed unless the lead council takes proactive steps.

Eighth, the regulations do not specify any time frames for the preparation of plans beyond the reporting deadlines. A State authority could take years to develop its plan and the regulations provide no power to compel timely completion, aside from whatever the Act says.

Ninth, the requirement in regulation 6(1)(b) to “cause public notice of that fact to be circulated in a form that is accessible to people with disability” uses “circulated” rather than “published”. This might imply the notice must be sent to specific individuals or groups, not merely posted on a website. The scope of circulation is unclear.

Finally, the regulations do not provide for any independent review or audit of compliance. The Chief Executive and Minister are internal actors, so enforcement is self policing.

For the Minister, compliance requires following the steps in regulation 6 when preparing or varying the State Disability Inclusion Plan. The Minister must prepare consultation documentation, publish it on a website (the Minister chooses which one), and circulate public notice of that publication in a form accessible to people with disability. The Minister must then undertake consultation in a manner the Minister determines, call for public submissions in a form and within a period the Minister specifies, and have regard to any submissions received. The final plan must contain the provisions required by regulation 5: strategies relating to the UNCRPD and other international instruments, strategies for section 9(2) to (5) persons, priority areas, and measurable outcomes. The plan must be published in the Gazette. Variations usually require the same process, but the Minister can make administrative variations (consistency with law, correction of errors, removal of outdated information, changes of form) by Gazette notice alone. After a variation, the Minister must ensure public notice of non administrative variations is circulated in accessible form within a reasonable time.

For a State authority, compliance means preparing a draft disability access and inclusion plan that addresses the needs of persons under section 9(2) to (5) of the Act (regulation 8). The authority must prepare the draft, publish it on its own website in accessible form, circulate public notice of that in accessible form, and undertake public consultation in accordance with any guidelines issued under section 12(1)(a) of the Act. It must call for public submissions in a manner and form it determines, specify a period, and have regard to submissions received. The plan takes effect when published on the authority’s website. The authority must then prepare a report to the Chief Executive containing information about the preparation process, including the number of submissions and any recommendations adopted. If the authority is a local council preparing a single plan for multiple council areas, it must take reasonable steps to keep residents in each affected area informed. Variations follow the same process unless they fall within one of the five exemptions: consistency with law, consistency with the State Plan, removal of outdated information, changes of form, or correction of errors. If a variation is not exempt, the authority must repeat the full consultation process.

During the exempt period under regulation 12(4), State authorities need not comply with section 18 of the Act (review of plans) until a new State Plan is gazetted or four years from 7 March 2024, whichever is sooner. However, they must still comply with the annual reporting obligations for the 2023 calendar year if that exemption applies: prepare a report for 1 January to 31 December 2023 and provide it to the Minister by 30 June 2024. After 2023, normal reporting timelines under the Act resume.

In practice, good compliance involves documenting every step: keeping copies of consultation documentation, records of publication and circulation, logs of submissions received, evidence that submissions were considered, and the final report. Authorities should use accessible formats for all public documents and ensure their websites meet accessibility standards. They should also monitor the Gazette for any new State Plan, the expiry of the exemption period, and any new ministerial guidelines. Legal advice should be sought if there is doubt about whether a variation is exempt from consultation, or about the content of “other relevant international human rights instruments”.