Principles to guide the development of nationally consistent restrictive practices authorisation arrangements
While states and territories remain responsible for authorisation of the use of restrictive practices under the NDIS, one of the NDIS Commission’s statutory functions is to assist states and territories to develop a regulatory framework, including in relation to nationally consistent minimum standards for restrictive practices. All governments Australia-wide have recognised that national consistency will deliver better outcomes for people with disability.
Between August and November 2020, Griffith University’s Policy Innovation Hub undertook an independent review of Queensland’s positive behaviour support and restrictive practices framework (independent review) on behalf of Disability Services and the Department of Justice and Attorney-General.
The purpose of the independent review was to consider whether improvements could be made to better align with the NDIS Quality and Safeguarding Framework (QSF) and the national principles for nationally consistent restrictive practices authorisation, while ensuring appropriate safeguards were maintained. The scope of the independent review was limited to the use of restrictive practices by NDIS providers.
The independent review has also informed a broader Ministerial review, under section 241AA of the DSA, of the operation of certain provisions inserted into the DSA to support Queensland’s transition to the NDIS.
The purpose of the Ministerial review was to consider the appropriateness, relevance and use of those provisions, as Queensland’s and the NDIS Commission’s new roles are implemented, and the service provider market develops. These include provisions relating to restrictive practices functions.
United Nations Convention on the Rights of Persons with Disabilities
The purpose of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. Australia has ratified and agreed to be bound by the terms of the CRPD under international law.
Consistent with the CRPD, and its intent to protect the rights, freedoms and inherent dignity of people with disability, any new authorisation framework for the use of restrictive practices in Queensland must aim to reduce and eliminate the use of restrictive practices.
Human Rights Act 2019 (Qld)
Any authorisation framework for the use of restrictive practices in Queensland must also be compatible with the human rights protected in Queensland’s Human Rights Act 2019. The authorisation of restrictive practices on adults and children with disability will intersect with numerous human rights including, for example, the right to:
- recognition and equality before the law;
- protection from torture and cruel, inhuman or degrading treatment;
- liberty and security; and
- protection of family and children.
While these human rights are not absolute, they may only be restricted in a way that is lawful, reasonable and can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
New roles and responsibilities under the NDIS
Under the National Disability Insurance Scheme Act 2013 (the NDIS Act), the NDIS Quality and Safeguards Commission (the NDIS Commission) has a behaviour support function to provide leadership in behaviour support and in the reduction and elimination of the use of restrictive practices by NDIS providers. This includes overseeing the use of behaviour support and restrictive practices, and assisting states and territories to develop a regulatory framework, including in relation to nationally consistent minimum standards for restrictive practices.
In recognition of the high level of safeguards achieved by Queensland authorisation framework, minimal changes were made to that framework as part of Queensland’s transition to full scheme NDIS from 1 July 2019.