Definitions and interpretation

Core rule. Words in the Code must be read consistently with disability rights and substantive equality. A narrow internal meaning cannot be used to reduce a person's protection.

Legal

Definitions. In this Code, unless the contrary intention appears:
1. accessible communication. communication provided through a language, format, channel, technology, interpreter, communication partner or other method that the person can receive, understand and use, with enough time and support to participate effectively
2. adjustment. a change to a process, requirement, environment, timing, communication method, technology or way of working that removes or reduces a disability-related barrier
3. advocate. a person chosen by, or acting with the authority of, a person with disability to support the person to have their voice heard and rights respected; it includes an independent advocate within the meaning of the NDIS Act
4. Agency or NDIA. the National Disability Insurance Agency established under the NDIS Act
5. Agency worker. a person described in section 1 as a duty holder, whether employed, engaged, contracted, delegated or otherwise authorised
6. child representative. a person who may do things for or on behalf of a child under the NDIS Act
7. Code duty holder. the Agency and each person or entity to whom section 1 applies
8. communication. spoken, signed, written, tactile, augmentative and alternative communication and any other accessible means, mode or format of communication
9. decision. a statutory decision and any administrative, procedural, service, risk, communication, evidence, referral, prioritisation or implementation decision that affects a person
10. disability. has a broad, rights-based meaning and includes disability within the Disability Discrimination Act; it is not limited to an impairment for which a person meets, or may meet, NDIS access criteria
11. discrimination. direct, indirect, systemic, intersectional or other disability discrimination, including a failure to make an adjustment required under this Code
12. Easy Read. information designed to make ideas easier to understand by using short sentences, common words, clear structure, supportive images where appropriate, and testing with the intended users
13. human rights. the rights and principles recognised by the CRPD and the other international instruments referred to in section 3 of the NDIS Act, together with rights protected by applicable Australian law
14. material adverse action. a decision, proposal, omission or service action that may significantly reduce a person’s rights, supports, access, safety, continuity, privacy, ability to participate or practical position
15. nominee. a correspondence nominee or plan nominee appointed under the NDIS Act
16. participant and prospective participant. have the meanings given by the NDIS Act
17. person affected. a person protected by section 1 whose rights, interests, safety, participation or practical position may be affected by an Agency function or service
18. reasonable adjustment. an adjustment that does not impose unjustifiable hardship within the meaning of the Disability Discrimination Act; the duties in section 5 may require the Agency to identify and make adjustments proactively
19. service interaction. any contact, attempted contact, meeting, communication, process, decision, referral, record, system event or omission occurring in connection with an Agency function or service
20. supported decision-making. support that enables a person to understand, consider, communicate and act on their own will and preferences without transferring the decision to another person merely because support is needed
21. trauma-informed service. service that recognises the possible effects of trauma, prioritises physical and psychological safety, trust, choice, control, collaboration and empowerment, and seeks to avoid retraumatisation without requiring a person to disclose or prove trauma
22. universal design. design that can be understood, accessed and used by the widest range of people from the outset, while recognising that individual adjustments may still be required
23. will and preferences. what a person wants, values or chooses, including preferences communicated through behaviour, non-verbal communication or with support
Mandatory and permissive language. Must, must not and is required to create mandatory duties. May confers a discretion that must be exercised lawfully, reasonably and consistently with this Code. Should does not create a mandatory duty and must not be used in operative provisions that are intended to be enforceable.
Rights-compatible interpretation. So far as the text permits, this Code must be interpreted in the way that best promotes the rights, dignity, autonomy, equality, participation, accessibility and safety of people with disability.
Substantive equality. Equality in this Code does not require identical treatment. Different treatment, additional support or an adjustment may be required to achieve equal and effective access, participation and benefit.
Disability-related conduct and communication. Conduct, distress, communication differences, use of an advocate, need for repetition, delay in responding, inconsistent presentation or a need for support must not be separated from the person’s disability and circumstances when applying this Code.
Will and preferences. Where this Code requires consideration of a person’s views, choices or interests, the person’s own will and preferences are the starting point. The views of a nominee, representative, family member or professional do not replace the person’s will and preferences except to the extent authorised by law.
Intersectional and cumulative barriers. A duty holder must consider whether disability-related barriers interact with age, First Nations status, race, culture, language, sex, gender identity, sexual orientation, intersex status, socioeconomic circumstances, rural or remote location, migration status, caring responsibilities or another attribute or experience.
Examples and notes. An example, note or list in this Code is explanatory and not exhaustive. The word including does not limit the words that precede it.
Conflict with law. If compliance with a provision of this Code would be inconsistent with an Act or another binding legal requirement, the duty holder must comply with the law, limit the person’s rights no more than the law requires, and record the inconsistency and the steps taken to minimise its effect.

Plain English

This section gives important words a stable meaning. It also stops the Code being read in a narrow, technical way that defeats its purpose.

Disability is broader than the impairment that gave someone access to the NDIS. A person does not lose equality or accessibility protections because a need is not an accepted NDIS impairment.
A decision includes more than a formal plan decision. It can include a communication restriction, a referral, a priority rating, a failure to act or a choice about what evidence to look at.
Equal treatment does not always mean identical treatment. A person may need extra time, written communication, an interpreter, a supporter or a different process to participate equally.
Supported decision-making helps the person make and communicate their own decision. It is not a polite name for someone else deciding for them.
Trauma-informed service does not require a trauma diagnosis or detailed disclosure. Staff must use safe practices because they are good service and because many people may have trauma histories the Agency does not know about.
If another law truly requires a different result, the Agency must follow that law but reduce the rights impact as far as it can and explain what happened.

Easy Read

This part explains important words.

Accessible communication means information you can get, understand and use.
An adjustment is a change that removes a barrier for you.
An advocate is someone who helps your voice be heard.
Supported decision-making helps you make your own decision.
Your will and preferences are what you want and what matters to you.
The NDIA must listen to what you want.
Equal service does not always mean the same service.
You might need a different way to do something so you have an equal chance.
When the Code says must, the NDIA has to do it.

Evidence for this section

Current legal anchor
The NDIS Act supplies statutory meanings including Agency, nominee, participant, prospective participant and independent advocate. Those meanings should be incorporated rather than recreated inconsistently.
A1
Current legal anchor
The Disability Discrimination Act defines disability broadly, includes behaviour that is a symptom or manifestation of disability, and defines reasonable adjustment by reference to unjustifiable hardship.
A2
Treaty anchor
CRPD article 2 defines communication, language, discrimination on the basis of disability, reasonable accommodation and universal design. The draft adapts those concepts for an Australian service-code instrument.
A3
Proposed extension
The definitions of material adverse action, service interaction, trauma-informed service, will and preferences and Code duty holder are design choices for this Code. They should be tested against all later sections to avoid gaps or circular definitions.
A1 A3 A4
Drafting choice
The formal title retains reasonable adjustment because it is the current Australian statutory term. The operative text also uses adjustment because the Royal Commission recommended removing the qualifier reasonable from the threshold question.
A2 A4

Authorities cited (4)

LegislationA1National Disability Insurance Scheme Act 2013 (Cth)
Sections 3 to 7, 9, 15, 17A, 31, 32, 73V, 118 and related provisions; current compilation checked on the Federal Register of Legislation.
LegislationA2Disability Discrimination Act 1992 (Cth)
Sections 4 to 6, 11, 24, 29 and 29A; current compilation checked on the Federal Register of Legislation.
CRPDA3Convention on the Rights of Persons with Disabilities
Articles 1 to 5, 9, 12, 13, 17, 19, 21, 22, 25, 26, 28 and 33 are particularly relevant to these sections.
Disability Royal CommissionA4Disability Royal Commission Final Report, Volume 4 - Realising the human rights of people with disability
Human rights framework; proposed Disability Rights Act; public-authority compatibility and proper-consideration duties; equality, accessibility and adjustments.