Disability Inclusion (Restrictive Practices—NDIS) Regulations 2021

Level 1 restrictive practices (regulation 4) are environmental, mechanical, or chemical restraints that are not level 2 and not prohibited. Importantly, preventing a prescribed person from entering an area they are not permitted to enter - such as staff rooms or storage areas - is taken not to be an environmental restraint (regulation 4(3)). This carve-out means that many routine access restrictions in disability accommodation do not count as a restrictive practice at all, reducing the authorisation burden for providers. The regulation also makes clear that it is irrelevant whether the practice is used on a particular person or on prescribed persons generally (regulation 4(4)).

Level 2 restrictive practices (regulation 5) are explicitly listed categories: seclusion (excluding acts declared not to be detention under regulation 7); environmental restraints that include electronic monitoring devices, locking external gates and doors of residential premises (again, excluding detention), continuous accompaniment, limiting access to mobility devices (including by failing to charge batteries or applying brakes), and limiting access to means of communication; mechanical restraint requiring force to apply; physical restraint; chemical restraints that involve an invasive procedure, two or more psychotropic drugs, more than five different drugs, or hormonal manipulation; and the use of more than five level 1 practices on the same person. The last category is a tripwire: a provider accumulating several low‑level restraints on one participant can unexpectedly be pushed into the higher authorisation threshold.

Prohibited restrictive practices (regulation 8) include prone restraint (face‑down), supine restraint (face‑up), any restraint intended to restrict respiratory or digestive function, forcing the head forward onto the chest (except incidental to authorised level 1 or 2 practices), and any practice involving deliberate infliction of pain or discomfort, including hyperextension of joints or pressure to the chest. The restrictive practices guidelines (to be developed under section 23H of the Act) may also declare additional practices to be prohibited. No authorisation can be granted for these practices.

Detention (regulation 7) is a key concept because certain acts that would otherwise be illegal detention are declared not to constitute it, but may still be restrictive practices requiring authorisation. Notably, requiring a person to obtain approval from a specified person before leaving premises is detention (regulation 7(1)). However, locking external gates and doors of 24‑hour residential premises is not detention if the person lacks reasonably necessary supports to leave safely. Temporary confinement not exceeding two hours in an emergency for de‑escalation is also not detention. The practical effect is that these carve‑outs create a permission structure for providers to lock doors or confine people short‑term, but those acts may still be environmental restraints (lockout) or seclusion (confinement) requiring level 2 authorisation.

Risk of harm (regulation 6) is defined for the purposes of section 23B(2) of the Act to include causing damage to property (or threatening to), and causing human biological material to come into contact with a person or object. This is a broad definition that can capture behaviour like spitting, throwing faeces, or smearing - conduct that might trigger the use of restrictive practices in an emergency.

Senior Authorising Officer (regulation 10) must hold tertiary qualifications in a relevant field (allied health, nursing, education, law, or a disability‑specific or behaviour‑specific discipline) and have experience and knowledge in leading human services system reforms. Authorised Program Officers (regulation 11) need tertiary qualifications (same fields) and extensive experience in planning, developing, implementing, evaluating, and monitoring behaviour interventions and supports. These prescriptive qualification requirements impose a compliance cost on NDIS providers who must employ or contract such officers to authorise level 1 practices.

Restrictive practices guidelines (regulation 9) must be prepared after consultation with people who have lived experience, the NDIS Quality and Safeguards Commission, Disabled People’s Organisation Australia, National Disability Services, the Disability Australia Consortium, Children and Young People with Disability Australia, Carers SA, the South Australian Council on Intellectual Disability, and Our Voice SA. The Minister must also take reasonable steps to enable Aboriginal and Torres Strait Islander people and people from culturally and linguistically diverse backgrounds to participate in consultations.

The regulations directly affect three main groups: prescribed persons (NDIS participants who might be subjected to restrictive practices), prescribed NDIS providers (those registered under the NDIS who provide supports in South Australia), and the authorisation officers (APOs and the SAO). But the operational impacts ripple much wider.

NDIS participants experience the most immediate effect: the regulations set bounds on when and how their freedom can be curtailed. They have a right to written notice after a restrictive practice is used (regulation 12(1)(a) and 13(1)(a)), and to receive that notice in an accessible form ‘as far as is reasonably practicable’ (regulation 12(1)(e), 13(1)(e)). The vagueness of that qualifier gives providers room to argue that accessible formats are not practicable. Participants who have had authorisation decisions made about them can seek review in SACAT through their family, guardian, nominated advocate, or provider (regulation 14). The nominated advocate can be any person expressly nominated, including a legal practitioner.

NDIS providers bear the compliance burden. They must identify whether each restrictive practice they use is level 1, level 2, or prohibited. For level 1 practices, they need an APO to authorise the use (regulation 12). For level 2, they need SAO authorisation (regulation 13). Providers must give written notices as soon as reasonably practicable after using a restrictive practice, and must ensure those notices contain specific information set out in regulations 12(1)(a) and 13(1)(a). If a provider uses more than five level 1 practices on one person, or uses any of the chemical or mechanical combinations in regulation 5(1), they are automatically pushed into level 2 authorisation territory. The provider also bears the risk that an APO or SAO might refuse authorisation, and if the SAO refuses, the provider cannot reapply for the same restrictive practices on the same person for six months unless circumstances change materially or the SAO gives permission (regulation 13(3)). This lockout period could leave a provider in an impossible position if the participant’s behaviour deteriorates during the six months.

APOs are individuals - likely senior clinicians, behaviour support practitioners, or disability professionals - who must hold prescribed tertiary qualifications and extensive experience. They are responsible for authorising level 1 practices and must report to the SAO twice a year on the number and nature of authorisations (regulation 12(2)). The regulation does not cap the volume of authorisations an APO can issue, but the reporting requirement creates a paper trail that could be used for auditing.

The SAO is a single officer (likely within the SA Department of Human Services or equivalent) who holds significant discretion. The SAO may refuse an application ‘for any reason the SAO thinks fit’ (regulation 13(2)). That broad discretion is not constrained by any specified criteria in the regulations, giving the SAO very wide latitude. The SAO also has the power to grant or deny permission for an early reapplication after a refusal.

Family, guardians, and advocates gain standing to seek SACAT review. Regulation 14(1) expressly includes family members, guardians, and nominated advocates. This is a significant expansion of access to review, as the Act itself (section 23Z) would otherwise leave standing uncertain.

Consultation bodies (regulation 9) - the NDIS Quality and Safeguards Commission, Disabled People’s Organisation Australia, National Disability Services, Disability Australia Consortium, Children and Young People with Disability Australia, Carers SA, South Australian Council on Intellectual Disability, and Our Voice SA - must be consulted on the restrictive practices guidelines. But ‘consultation’ is not defined, so the Minister’s obligation is procedural rather than substantive. The Minister must also take reasonable steps to include Aboriginal and Torres Strait Islander people and CALD communities.

Duty to obtain authorisation before use. The central duty is that a prescribed NDIS provider cannot use a level 1 or level 2 restrictive practice without prior written authorisation from an APO (level 1) or the SAO (level 2), except in emergency situations where use occurs and then notice must be given. The regulations do not create a stand‑alone emergency authorisation pathway; they only provide for notice after the fact. This means that any use of a restrictive practice in an emergency requires the provider to retrospectively meet the notice requirements and hope that the practice would have been authorised if applied for in advance. The regulations do not excuse non‑compliance with the authorisation requirement merely because the situation was urgent.

Duty to give written notice. Regulation 12(1) (level 1) and regulation 13(1) (level 2) require the provider to give written notice ‘as soon as is reasonably practicable after using the relevant restrictive practice’. The notice must include the name of the prescribed person and provider, the time and date or period of use, the nature of the practice, the reason it was used, and an explanation of the person’s rights under Part 6A Division 6 of the Act. The notice may be combined if multiple practices are used, and a single notice may cover a period of up to three months. The provider must, as far as reasonably practicable, give the notice in an accessible form to the prescribed person. These notice duties create an administrative burden, particularly for providers serving many participants or using practices across long periods.

Reporting duty of APOs. Each APO must send a written report to the SAO on or before 30 June and 31 December each year setting out the APO’s name, the provider’s name, and the number and nature of authorised restrictive practices during the preceding six months (regulation 12(2)). The SAO may require additional information. This is a biannual compliance obligation that APOs cannot delegate.

Right to seek review before SACAT. Regulation 14 confers standing on family members, guardians, nominated advocates, and the provider to apply for review of a decision under Part 6A (including authorisations, refusals, and conditions). The nominated advocate is any person expressly nominated by the participant to act on their behalf, including a legal practitioner. This is a notable expansion: participants themselves can have their chosen advocate bring a review even if the participant cannot instruct a lawyer directly.

Provider’s right to apply (and restrictions). The provider can apply to the SAO for authorisation. But if the SAO refuses, the provider cannot reapply for the same restrictive practices on the same person for six months unless the circumstances have changed materially or the SAO grants permission (regulation 13(3)). This is a significant restriction on the provider’s ability to respond to changing behaviours. It also creates an incentive for providers to apply for broad authorisation initially, to avoid being locked out later.

SAO’s broad discretion. The SAO may refuse an application ‘for any reason [they] think fit’ (regulation 13(2)). No criteria, no obligation to give reasons, no time limit for decisions. This is an extraordinarily wide power that gives the SAO de facto control over the use of all level 2 restrictive practices in the state. It also creates legal risk for providers if the SAO delays a decision - the provider cannot use the practice without authorisation, but the SAO has no statutory deadline to process the application.

No duty to monitor provider compliance. While APOs authorise level 1 practices, the regulations do not impose a duty on APOs or the SAO to monitor whether the authorised practices are actually being used appropriately or to review ongoing necessity. The biannual report is purely numeric. The SAO could impose conditions on an authorisation (by inference from the power to refuse for any reason), but the regulations do not expressly confer a power to set conditions.

The regulations themselves do not create penalty provisions. Penalties for unauthorised use of restrictive practices, or use of prohibited practices, would arise under the Disability Inclusion Act 2018 (SA) - specifically, under Part 6A and the general penalty provisions of the Act. The regulations are not the enforcement instrument; they define the categories and authorisation pathways that must be followed.

However, the enforcement consequences flow as follows. If a provider uses a prohibited restrictive practice (regulation 8) - such as prone restraint - that is a direct contravention of the Act (section 23D). The Act would prescribe penalties, likely as expiation fees or criminal penalties for serious breaches. The regulations do not specify which section of the Act creates the offence, but the reader would need to consult the Act separately for the maximum fine or imprisonment term. Similarly, using a level 1 or 2 restrictive practice without authorisation would be a breach of the authorisation requirement in sections 23N and 23O of the Act.

The regulations also create regulatory compliance obligations that, if breached, could lead to administrative consequences: a provider’s registration could be reviewed by the NDIS Quality and Safeguards Commission, or the SAO could take a more restrictive stance on future applications. The reporting obligations under regulation 12(2) - biannual returns by APOs - are duties owed to the SAO. Failure to submit a return would not be a criminal offence under these regulations, but could result in the SAO refusing to accept future authorisations from that APO, or referring the matter to the Commission.

The six‑month bar on reapplications after refusal (regulation 13(3)) is itself a form of enforcement: it forces the provider to wait or prove changed circumstances. The SAO’s broad discretion to refuse for any reason (regulation 13(2)) also acts as an enforcement lever - the SAO can effectively veto any level 2 practice without needing to prove non‑compliance.

For providers, the main enforcement risks are: (1) using a prohibited practice - immediate risk of prosecution; (2) using a level 1 or 2 practice without authorisation - risk of prosecution and regulatory action; (3) failing to give proper notice - complaint to the SAO or Commission; (4) failing to maintain qualified APOs - inability to legally use any level 1 practices.

Because the Act and regulations are state‑based, enforcement is handled through SA courts (for offences) and SACAT (for review of decisions). The NDIS Quality and Safeguards Commission also has concurrent jurisdiction as the Commonwealth regulator for NDIS provider conduct, which can lead to dual enforcement pathways.

The regulations sit under the Disability Inclusion Act 2018 (SA) and especially Part 6A, which was inserted by the Disability Inclusion (Restrictive Practices,NDIS) Amendment Act 2021. As subordinate legislation, the regulations cannot override the Act; they fill in the details that the Act leaves to regulation - definitions of levels, qualifications, prescribed persons for review, consultation requirements, and the meaning of detention.

The regulations interact with the NDIS Act 2013 (Cth) and the NDIS Quality and Safeguarding Framework. NDIS providers are already subject to Commonwealth rules on behaviour support and restrictive practices. The SA regulations add a state‑level authorisation requirement. This creates potential for overlap: a provider may need authorisation from the NDIS Commission under Commonwealth rules and from the SAO under these regulations. The regulations do not address whether Commonwealth authorisation is sufficient or whether the SA authorisation is additional. Regulation 9(1)(b)(i) requires the Minister to consult the NDIS Quality and Safeguards Commission before making guidelines, indicating an intention to avoid conflict, but no express provision says state authorisation displaces Commonwealth requirements.

The regulations also interact with guardianship laws (the Guardianship and Administration Act 1993 (SA)). A guardian with authority to consent to restrictive practices may be able to provide consent that satisfies the Act, but the regulations do not carve out guardian‑authorised uses from the authorisation requirements. A provider would need to confirm whether guardian consent alone is sufficient or whether APO/SAO authorisation is still required. The regulation 14(1)(b) gives guardians standing for SACAT review, acknowledging their role.

The carve‑outs from detention in regulation 7 interact with the criminal law of false imprisonment and assault. By declaring that locking external gates and doors does not constitute detention if the person lacks supports to leave safely, the regulations provide a statutory defence or exclusion from criminal liability, provided the provider meets the condition. Similarly, temporary confinement for up to two hours for de‑escalation in an emergency is declared not to be detention. However, the note to each clause warns that the act may still be an environmental restraint or seclusion - meaning it requires authorisation. This creates a layered interaction: criminal law (detention) and regulatory law (restrictive practices) are treated separately.

The prohibited practices in regulation 8 also interface with the criminal law: use of prone restraint could amount to assault occasioning bodily harm if injury results, regardless of the regulatory prohibition. The regulations do not displace criminal liability.

The regulations require consultation with a list of bodies (regulation 9) but do not require consultation with the Health and Community Services Complaints Commissioner or the SA Ombudsman, though those bodies may still have oversight roles.

For workers’ compensation and occupational health and safety laws, a provider who uses restrictive practices without authorisation may be found to have failed in its duty to provide a safe workplace, both for the participant and for staff who could be injured during unplanned restraints.

The Disability Inclusion (Restrictive Practices,NDIS) Regulations 2021 were made on 2 September 2021 (Gazette 2.9.2021 p3430) and came into operation on 30 May 2022, as stated in regulation 2. That date is the same day Part 6A of the Disability Inclusion Act 2018 came into operation, as enacted by the Disability Inclusion (Restrictive Practices,NDIS) Amendment Act 2021.

The regulations themselves have not been amended as of the date of this analysis. However, the principal Act has been amended to insert Part 6A, and the regulations were drafted to support that new part. The ‘Legislative history’ at the foot of the regulations notes only the principal regulations - no amending regulations.

Regulation 2 ties commencement to ‘the day on which Part 6A of the Disability Inclusion Act 2018 (as enacted by the Disability Inclusion (Restrictive Practices,NDIS) Amendment Act 2021) comes into operation.’ This means the regulations started on the same day as the substantive provisions they support.

There are no sunset or expiry clauses in the regulations. They continue indefinitely until revoked or amended. Given that restrictive practices policy for NDIS is evolving at the Commonwealth level (for example, through the NDIS Amendment (Improving Outcomes for Participants) Bill 2024), there may be future amendments to align with any Commonwealth changes.

No transitional or savings provisions appear in the regulations. Providers who used restrictive practices before 30 May 2022 suddenly became subject to the authorisation requirements on that date, with no grace period.

There is no reported litigation under these regulations as of the date of this analysis. The regulations are relatively recent (commenced 30 May 2022) and the scheme has not been tested in the South Australian Civil and Administrative Tribunal or in the courts in any publicly reported decision.

The potential for litigation exists under the review pathway created by regulation 14. Decisions by the SAO to refuse authorisation, or by an APO to grant or refuse authorisation (if that decision is also reviewable), could be challenged. The broad discretion of the SAO to refuse ‘for any reason the SAO thinks fit’ (regulation 13(2)) could be challenged if it is exercised arbitrarily or without procedural fairness. However, no such challenge has yet been reported.

The definition of detention in regulation 7 could also be litigated, particularly the carve‑out for locking external gates and doors of 24‑hour premises. If a person is effectively trapped inside, a court or tribunal may need to determine whether the person had ‘such supports as may be reasonably necessary to enable the prescribed person to safely leave the premises at their discretion.’ That phrase creates a factual dispute that could be tested.

The prohibition on practices that involve ‘deliberate infliction of pain or discomfort’ (regulation 8(1)(e)) may also generate litigation over what constitutes ‘deliberate’ versus incidental discomfort. The hyperextension of joints and pressure to the chest are given as examples, but the phrase ‘includes’ leaves the door open.

Because the regulations are administrative and subordinate, any litigation would likely occur in SACAT (for review of decisions) or the Supreme Court (for judicial review of the regulations themselves or of SAO decisions on jurisdictional grounds). No such cases are known at the time of writing.

1. The five‑level‑1 threshold is easy to trip. Regulation 5(1)(f) makes the use of more than five level 1 restrictive practices on the same person a level 2 practice, regardless of how minor each practice is. A provider that uses, say, six different environmental modifications (locking doors to six different areas) on one participant will need SAO authorisation for that combination, even if each lock is individually trivial.

2. Locking external gates and doors is not detention but may still be environmental restraint. Regulation 7(2)(a) carves out locking from the definition of detention if the person lacks supports to safely leave. But the note says such an act may still be an environmental restraint. If it is an environmental restraint, it is at least level 1, and if it involves locking external doors of residential premises (regulation 5(1)(b)(ii)), it is level 2. Many providers may think a locked door is fine because it is not detention, but they still need authorisation.

3. Temporary confinement for up to two hours is not detention - but is seclusion. Regulation 7(2)(b) allows confinement for up to two hours in an emergency for de‑escalation. The note says this may still amount to seclusion. Seclusion is a level 2 practice. So the provider must have level 2 authorisation or confine the person in an emergency and then give notice - but the regulations do not expressly authorise emergency use without pre‑existing authorisation. This creates a legal grey area.

4. The SAO’s refusal power is effectively unreviewable unless the SAO acts ultra vires. Regulation 13(2) says the SAO may refuse for any reason they think fit. There is no requirement to give reasons, no appeal to a merits review body for the refusal itself (only for decisions under Part 6A, which arguably includes the refusal, but the SAO’s discretion is so wide that merits review is unlikely to succeed). Judicial review for legal error is possible, but expensive.

5. The six‑month reapplication bar is a trap. If the SAO refuses an application, the provider cannot reapply for the same restrictive practices on the same person for six months unless material change occurs or the SAO permits. This could be catastrophic if the person’s behaviours change and the previously refused practice is now appropriate. The provider would have to convince the SAO to allow an early application, and the SAO has no obligation to grant permission.

6. Notice can be combined and cover three months - but must be accessible ‘as far as reasonably practicable’. Combined notices and period notices reduce paperwork but the accessibility obligation is qualified. A provider could argue it is not practicable to provide Braille, Easy Read, or sign language, leaving the participant effectively uninformed.

7. ‘Risk of harm’ includes causing human biological material to contact a person or object. Regulation 6(b) captures spitting, smearing faeces, throwing urine, etc. This is very broad. It does not require that the material is infected or that harm actually occurs. The existence of this category means that behaviour support plans and restrictive practice authorisations can be based on this definition, potentially justifying more restrictive practices than if only actual physical harm were required.

8. Prohibited practices include any practice declared by guidelines. Regulation 8(1)(f) delegates to the restrictive practices guidelines the power to declare new prohibited practices. Providers must monitor the guidelines for updates or risk using a practice that becomes prohibited without a clear amendment to the regulations.

9. The requirement for extensive experience in ‘leading human services system reforms’ for the SAO (regulation 10(b)) is unusual. It suggests the SAO is not solely a clinical decision‑maker but a system reform leader. Candidates with that profile may be few, and the role may be difficult to fill, potentially slowing the authorisation process.

10. No time limits on SAO decisions. The regulations impose no deadline for the SAO to decide an application. Providers can be left waiting, and during that time they cannot use the restrictive practice unless it is an emergency. This creates a perverse incentive to rely on emergency use rather than seeking prior authorisation.

The compliance burden on NDIS providers under these regulations is substantial, but the steps are reasonably clear.

Step 1: Identify all restrictive practices used. Providers must audit every practice that restricts a prescribed person’s freedom of movement or access. This includes locking doors, using alarms, accompanying a person continuously, administering psychotropic medication, using mechanical restraints like vests or straps, physical holds, secluding a person, and any form of restraint. Each practice must be classified as level 1 (regulation 4), level 2 (regulation 5), or prohibited (regulation 8). The classification depends on the specific features - for example, a mechanical restraint that requires force to apply is level 2; one that does not require force is level 1. Providers must also count the total number of level 1 practices used on each person - if it exceeds five, that combination becomes level 2.

Step 2: Ensure no prohibited practices are used. Prone restraint, supine restraint, any restraint affecting breathing or digestion, forced head‑on‑chest, and practices involving deliberate pain (including hyperextension of joints and pressure to the chest) are absolutely prohibited. Providers must train all staff to recognise and avoid these. Any future guidelines may add more.

Step 3: Obtain qualified APOs. To authorise level 1 practices, the provider must have an APO who holds tertiary qualifications in a relevant field (allied health, nursing, education, law, disability‑specific or behaviour‑specific discipline) and extensive experience in planning and implementing behaviour interventions (regulation 11). This may require hiring external consultants or upskilling existing staff.

Step 4: Apply for authorisation. For level 1 practices, apply in writing to the APO (or the APO may authorise on request). The APO’s authorisation must be in writing and presumably kept on file. For level 2 practices, apply to the SAO. The SAO has discretion to refuse for any reason. Providers should maintain detailed evidence of why the practice is necessary, what alternatives have been tried, and how it is the least restrictive option. The six‑month bar on reapplication after refusal makes it critical to get the application right the first time.

Step 5: Provide written notices. After using any restrictive practice (whether authorised or in an emergency), the provider must give written notice to the prescribed person as soon as reasonably practicable. The notice must contain the person’s name, provider’s name, time/date/period of use, nature of the practice, reason, and explanation of their rights. The notice may cover multiple practices and up to three months’ use. It must be in an accessible format as far as reasonably practicable. Providers should develop standardised notice templates that can be customised quickly.

Step 6: Biannual reporting. Every APO must send a report to the SAO by 30 June and 31 December each year, listing the number and nature of all level 1 practices authorised in the preceding six months (regulation 12(2)). The SAO may request further information. The provider should set internal reminders and ensure the APO has the administrative support to compile these reports.

Step 7: Monitor changes. If a person’s behaviour changes, the provider may need to apply for new or different authorisations. The six‑month bar on reapplication means that any material change must be documented and communicated promptly to the SAO to obtain permission to reapply early. Providers should keep ongoing records of functional assessments, incidents, and modifications to support plans.

Step 8: Maintain accessible communication. The provider must ensure that notices are given in forms that the prescribed person can understand. This may require Easy Read, pictorial formats, audio, or translation. The cost of accessibility cannot be avoided by claiming impracticability without genuine attempts.

Step 9: Stay informed on guidelines. The Minister will develop restrictive practices guidelines after consultation. Providers must monitor these guidelines as they can create new prohibited practices or set additional requirements for authorisation. The regulations do not provide a mechanism for automatic updates; providers must actively check.

Step 10: Prepare for SACAT review. If a participant, family member, guardian, or advocate challenges a decision, the provider must be able to justify the authorisation or use of restrictive practices. Good record‑keeping is essential: copies of all authorisations, notices, risk assessments, behaviour support plans, and communications with the SAO. The provider itself also has standing to seek review if it disagrees with a refusal by the SAO (regulation 14(1)(d)), though the utility of that may be limited given the SAO’s broad discretion.