Human rights and CRPD compliance

Primary human rights duty. A Code duty holder must act compatibly with the human rights of people with disability and must give proper, genuine and proportionate consideration to those rights when developing or applying a policy, performing a function, delivering a service or making a decision.

CRPD principles. Without limiting clause 1.3.1, a duty holder must apply the general principles of the CRPD, including:

1. respect for inherent dignity, individual autonomy and freedom to make one’s own choices;

2. non-discrimination and equality of opportunity;

3. full and effective participation and inclusion in society;

4. respect for difference and acceptance of people with disability as part of human diversity and humanity;

5. accessibility;

6. equality between people of all genders; and

7. respect for the evolving capacities of children with disability and their right to preserve their identities.

Rights relevant to Agency service. A duty holder must consider all rights relevant to the circumstances, including rights relating to equal recognition before the law, supported decision-making, access to justice, independent living and community inclusion, expression and access to information, privacy, health, habilitation and rehabilitation, an adequate standard of living and social protection, and effective participation in monitoring and reform.

Human rights assessment for material adverse action. Before taking material adverse action, the responsible officer must make and record an assessment that:

1. identifies the rights and interests that may be affected;

2. records the person’s views, will and preferences and any views provided by an authorised supporter, advocate or representative;

3. identifies disability-related and intersectional barriers, foreseeable harm and any need for adjustment;

4. considers less restrictive, less harmful and more accessible alternatives;

5. explains why the proposed action is lawful, necessary and proportionate; and

6. identifies safeguards, review points and steps to prevent or reduce harm.

No administrative-convenience limitation. Administrative convenience, workload, staffing, system design, a performance target or generalised cost pressure is not, by itself, a sufficient reason to limit a person’s rights or procedural protections.

Funding criteria remain subject to service duties. Nothing in clause 1.3.4 prevents the lawful application of access, planning, funding or financial-sustainability provisions in the NDIS Act. Those provisions must not be used to displace the separate duties of participation, accessibility, procedural fairness, reason-giving, risk consideration and respectful service under this Code.

Lawful limitations. If a duty holder considers that a person’s human rights must be limited because of a binding legal requirement, the duty holder must:

1. identify the legal authority relied on;

2. limit the right no more than is reasonably necessary to comply with that authority;

3. consider and implement any less restrictive alternative available; and

4. give the person accessible written reasons that explain the limitation, its expected duration, safeguards and available review or complaint rights.

Policies, systems and service changes. The Agency must assess human rights and accessibility when designing, procuring, changing or evaluating a policy, operational guideline, template, automated system, digital service, contact model or other service arrangement.

Participation in design and monitoring. The Agency must closely consult and actively involve people with disability, including people with diverse and intersecting experiences and disability representative organisations, in the design, testing, monitoring and review of policies and systems that materially affect them. Participation must be accessible, supported, appropriately resourced and capable of influencing the outcome.

Training, supervision and audit. The Agency must ensure that duty holders receive practical, role-specific training and supervision on this section and must audit whether human rights consideration changes actual decisions and services, not merely whether a template was completed.