Chapter 2Views on the bills
2.1This chapter discusses stakeholder views on the bills. Evidence to the committee throughout the inquiry focused on the Disability Services and Inclusion Bill 2023 (DSI bill) rather than the Disability Services and Inclusion (Consequential Amendments and Transitional Provisions) Bill 2023 (Consequential Amendments and Transitional Provisions bill). This chapter therefore primarily focuses on the DSI bill.
2.2Inquiry participants were broadly supportive of the bills and their intent, and many acknowledged the Department of Social Services’ (the department) stakeholder engagement throughout the development of the bills.
2.3Though the department had addressed several concerns raised by stakeholders during the two rounds of consultation, some submitters were of the view that some remained outstanding.
A modern legislative framework
2.4Submitters were supportive of the intent of the bills to repeal the Disability Services Act 1986 (DS Act) and replace it with a modern legislative framework that supports a human rights approach to funding disability supports and services; promotes the inclusion of people with disability; and consolidates the legislative basis for funding disability supports and services.
An outdated Act
2.5Numerous inquiry participants emphasised that the DS Act is outdated and fails to meet the contemporary needs and expectations of people with disability. For example, Lived Experience Australia stated:
The Disability Services Act is no longer fit for purpose, as it does not reflect the current landscape of disability policy, community expectations or demands for creating a more inclusive society, or the current nature of services and supports required to complement the NDIS.
2.6Lived Experience Australia also highlighted consequences for people with disability and their families of the current fragmented legislative framework:
At present, we know that many of these individuals are bouncing between fragmented systems where responsibility for service is unclear, and where the person and their families ultimately are left to cope with substandard support or no support.
2.7The Australian Federation of Disability Organisations (AFDO) expressed the importance of the bills in consolidating the legislative basis for funding disability supports and services:
We know that many people have gone without the supports they need since the inception of the NDIS and that in many cases these situations have been exacerbated by outdated laws, policies and interjurisdictional agreements which have caused ongoing confusion about the roles and responsibilities of different levels of government. The Commonwealth Disability Services Act 1986 is one such piece of outdated legislation.
2.8Ms Lauren Henley of AFDO stressed the importance of funding services regardless of NDIS eligibility, including a ‘no-wrong-door approach where people with disability can access services that are best suited to their individual needs and circumstances’.
2.9Associate Professor Jill Duncan, Acting Chair of the Disability Council NSW commended the bills for facilitating the provision of supports for people with disability, regardless of their eligibility for the NDIS.
2.10This was echoed by Ms El Gibbs, Director, Policy and Advocacy at the Disability Advocacy Network Australia (DANA), who said that the bills had the potential to open up a ‘wider range of services’ and help to ‘address this kind of cliff between those in the NDIS and those without’.
2.11The department explained that ‘the DS Act is outdated in both its structure and substance’ and that ‘contemporary disability programs employ a range of service delivery models that were not envisaged when the DS Act was established’.
2.12The department submitted that:
A single, unified source of enabling legislation authorising funding for disability supports and services will avoid the significant administrative delays and lack of consistent safeguards in the current system.
Promoting human rights and inclusion
2.13Inquiry participants commended the bills’ objective of promoting the human rights and inclusion of people with disability, consistent with Australia’s adoption of the United Nations Convention on the Rights of Persons with Disabilities (CRPD).
2.14Lived Experience Australia highlighted the importance of the bills’ role in repealing the DS Act to move away from the segregation of people with disability, and instead, towards inclusion:
The language, tone and purpose of the Disability Services Act … reflects a time when people with disability and the various employment, education and other services and supports in their lives were separated and segregated. This is no long [sic] acceptable and it has had significant adverse consequences for people with disabilities at all levels.
2.15The Disability Council NSW stated that it:
… commends the inclusive person-centred language used in the Bill, underpinned by the United Nations Convention on the Rights of Persons with Disabilities (CRPD). This language should serve as a model for all Commonwealth disability related instruments.
2.16Likewise, Dr Jade McEwen of the Australian Institute of Family Studies praised the bills as a ‘wonderful, positive step towards achieving a more inclusive society in Australia’. DANA also welcomed the ‘more inclusive nature of the bill’.
2.17The Australian Human Rights Commission (AHRC) acknowledged the bills’ attempts to uphold the human rights of people with disability in key areas, including funding independent advocacy services, expanding on the scope of disability employment services that can be funded, and focusing on the quality and safeguarding arrangements with disability service providers.
Definition of disability
2.18The committee heard mixed views on whether the DSI bill should include an explicit definition of disability.
2.19Australian Lawyers for Human Rights (ALHR) supported not having such a definition in the DSI bill as they believed it would ‘allow disabled people to be included within the broad tenets of the DSI bill … without restriction or legislative limitation’. Additionally, ALHR argued that, in the absence of a provision in the bill to ensure that a definition of disability would be ‘co-designed with disabled people’, it would not be appropriate for the parliament to define disability.
2.20Ms El Gibbs from DANA indicated that the decision to avoid defining disability would promote inclusion and allow for ‘as broad a conversation as possible’, rather than focusing on ‘who is not eligible for services’. In a similar vein, Dr McEwen from the Australian Institute of Family Studies (AIFS) pointed out that ‘a lot of families … are finding it difficult to meet definitions of “disability” to date’,nd therefore commended the bill for broadening the scope of people who could receive funded supports and services.
2.21Further, Ms Vanamali Hermans from First Peoples Disability Network Australia (FPDN) highlighted the difference in opinions within the disability community, and warned that defining disability would:
… risk alienating a very significant portion of the First Nations community who conceive of disability not in medical model terms or even in social model terms but within a cultural inclusion model.
2.22The committee also heard that by not defining disability, the DSI bill would allow for flexibility into the future, as ‘definitions change over time’.
2.23On the other hand, Mx Giancarlo de Vera from People with Disability Australia suggested that there would be value in defining disability by reference to the barriers that people with disability experience. Mx de Vera told the committee that a definition may be helpful to highlight the barriers that ‘stop the full and effective participation of people with disability in Australia on a basis equal to those without disability’.
2.24The Centre of Research Excellence in Disability and Health suggested legislating a definition of disability based on the International Classification of Functioning, Disability and Health framework, a ‘bio-psychosocial model of disability’ which considers the environmental and other personal factors that impact people with disability.
2.25In response, Mr Luke Mansfield, Group Manager of the Disability Strategy and Commonwealth Disability Royal Commission Taskforce at the department, acknowledged:
While there was support from different stakeholders around developing a definition of disability, there were quite divergent views about the nature of what that definition should be.
2.26Given the diversity of opinion amongst stakeholders, the department explained that a decision was taken not to define the term to ‘enable the broadest interpretation possible’ and avoid inadvertently excluding certain groups of people with disability from eligibility.
Key concerns raised by submitters
2.27Concerns raised by stakeholders on the bills included the alignment with the national disability strategy, the timing of the bills, human rights and inclusion, intersectional issues, quality and safeguards, regulatory burden, and co-design of delegated legislation.
Alignment with the national disability strategy
2.28In its submission, which was endorsed by 13 organisations, DANA expressed the view that the DSI bill should more closely reflect the ambition and scope found in Australia’s Disability Strategy 2021-2031 (the Strategy), including ‘establishing an overall vision for an inclusive Australian society to reflect the inclusive intention of other significant commitments’ in the Strategy.
2.29Similarly, the Public Advocate for Queensland suggested the bill provides an ‘opportunity to legislate for broader coordination and leadership consistent with these broader plans for people with disability’ and that the bill should be used to help realise the Strategy’s objectives.
2.30Mr Luke Mansfield from the department explained that the Strategy was deliberately not referenced in the bill as the Strategy ‘covers Commonwealth, state and local government, businesses, the community sector and members of the public’, whereas the bill is ‘more narrowly focused on Commonwealth funded service delivery’. Nonetheless, he emphasised that the bill can:
… facilitate the funding of services and supports that go to the vision and policy objectives of Australia’s disability strategy, based on programs and services that the government of the day chooses to invest or fund.
Timing of bills
2.31Numerous stakeholders pointed out the importance of the bills acknowledging and responding to the major strategic reviews being undertaken in the disability sector.
2.32Ms Lauren Henley of AFDO said that ‘we're at a real crossroads with disability policy in this country’ and there is a need for the DSI bill to reflect the recommendations of the Disability Royal Commission and NDIS Review. Likewise, Professor Smith-Merry from the Centre for Disability Research and Policy stressed the importance of the ‘current context’ and the ‘much broader disability landscape than what is in the Disability Services Act’.
2.33Several organisations were concerned that the timing of the bills does not sufficiently acknowledge the significant interest and momentum of the Disability Royal Commission. For example, DANA stated that the DSI bill ‘may not sufficiently include key recommendations for reform from both the Disability Royal Commission final report and the NDIS review’.
2.34The department submitted that the timing of the bills will directly facilitate the Government’s responses to the findings and recommendations of the Disability Royal Commission and coincide with the conclusion of the NDIS Review. Mr Luke Mansfield from the department noted that the DSI bill makes provision for delegated legislation, thereby enabling flexibility to respond to the Disability Royal Commission and NDIS Review.
Human rights and inclusion
2.35While many stakeholders applauded the DSI bill’s intention of upholding the human rights of people with disability, some stakeholders were of the view that the bill does not go far enough to protect these rights.
2.36DANA saw the DSI bill as a ‘significant opportunity to really start to enshrine the principles and the rights within the CRPD into Australian legislation which hasn’t happened yet’, and was ‘disappointed that [the bill] does not embed the rights found in the CRPD’. Mx Giancarlo de Vera of People with Disability Australia agreed that the bill missed an opportunity to ‘enforce the justiciability of the rights under the CRPD’ by incorporating the CRPD into domestic legislation.
2.37On the other hand, People with Disability Australia acknowledged that there are other opportunities to embed the CRPD besides the DSI bill, for example through the enactment of a human rights Act or disability rights Act. Professor Rosalind Croucher of the AHRC lent support for a national human rights Act, saying it would ‘add a sturdy legislative foundation to complement the bill and bring rights-mindedness to disability services’.
2.38The department reinforced that the DSI bill ‘is not a broad human rights act’ and ‘not a disability rights act’, but rather focuses on improving the enabling legislative framework for funding disability services and supports. Mr Luke Mansfield pointed out that the Disability Discrimination Act 1992 is considered the ‘primary means for upholding the CRPD’.He further explained that:
The reason that [the bill] says 'to the extent possible' is that 'services generally available to members of the Australian society' is very broad and goes beyond the remit, for example, of the Commonwealth to states and territories, and we are not able to dictate to states and territories that services need to be integrated between this particular bill and those other services.
Intersectional issues
2.39Stakeholders raised concerns about how the DSI bill deals with intersectional issues faced by people with disability. For instance, Associate Professor O’Donovan from the Centre for Disability Studies highlighted the importance of accounting for those experiencing multiple levels of disadvantage:
My concern is that, within the population of people with disability, the level of inequity is not equitable, and we know that some people are always going to be more disadvantaged.
First Nations peoples
2.40Stakeholders raised the need for a focus on First Nations peoples in the DSI bill, given the many intersectional issues faced by the community operating in ‘multiple worlds: First Nations, disability, and mainstream society’.
2.41Ms Vanamali Hermans from FPDN said:
… we are firmly of the belief the Disability Services and Inclusion Bill needs to have a clear and intentional focus on the needs and rights of First Nations peoples with disability.
2.42She called for the DSI bill to reference and acknowledge all the rights embedded in the United Nations Declaration on the Rights of Indigenous Peoples (DRIP), suggesting that the CRPD and DRIP are complementary conventions that ‘were always designed to be looked at in tandem’.
2.43FPDN and DANA also cited the National Agreement on Closing the Gap and the Disability Sector Strengthening Plan as key policies that required the government to work in partnership with First Nations peoples with disability.
2.44Mr Luke Mansfield from the department indicated that the DSI bill explicitly references First Nations peoples as a ‘group that face[s] compound disadvantage’, and said:
The Australian government supports the [DRIP] as a non-binding legal document, but this bill is not the appropriate vehicle to consider the government's broader approach to legislation in relation to Aboriginal and Torres Strait Islander peoples. The department is, however, absolutely committed to continuing to work with the First Peoples Disability Network, other First Nations people with disability and other stakeholders around closing the gap and in relation to the Disability Sector Strengthening Plan and will continue to do that into the future.
Individuals in the justice system and detention settings
2.45Stakeholders raised the need for the DSI bill to specifically refer to the rights of people with disability where their freedoms have been limited.
2.46The Commonwealth Ombudsman underlined that ‘people with disability are disproportionately represented in detention’, citing Australian Institute of Health and Welfare research that estimates 29 per cent of people in prisons have a disability. He went on to recommend the DSI bill make explicit reference to disability services in circumstances where people with disability are deprived of their liberty, such as correctional facilities, where people with disability have ‘significant representation’.
2.47Children and Young People with Disability Australia recommended the DSI bill refer more explicitly to the funding of supports in youth justice settings or prisons where young people with disability are overrepresented. The Centre for Disability Research and Policy also supported the singling out of those in detention and under compulsory treatment orders as a ‘special group’ that should be mentioned in the bill.
2.48The department responded by stating the DSI bill is ‘very broad based in its description of eligible activities’ and is ‘setting agnostic’. Mr Luke Mansfield from the department said, ‘there is nothing in the bill that would prevent [disability services in justice settings] from being funded should the government of the day wish to do so’.
Other cohorts
2.49Stakeholders also raised views where additional cohorts warranted specific mention and treatment in the bills. For example, Professor O’Donovan from the Centre for Disability Studies raised the need to ‘acknowledge alternative pathways and programs for people with intellectual disability’.
2.50The Australasian Society for Developmental Paediatrics also argued for specific recognition of the needs of children with developmental issues and disability which are ‘significantly different to those of adults’.
Department’s response
2.51The department explained that the way the bills deal with the intersectional issues is based on flexibility and inclusion, aiming to be as broad-based as possible. In its submission, the department advised:
The Bill aims to be broad and flexible to allow for programs funded under the Act to define target groups based on need and circumstances appropriate to the program. For this reason, the Bill does not prescribe a target group. This ensures that supports and services funded under the Bill can still be developed for the benefit of specific cohorts, depending on the nature of the program, service or support.
2.52The department pointed out that an object of the DSI bill is to support people with disability to access supports or services that:
… meet the needs of people with disability who experience compound disadvantage, including as a result of being an Indigenous person or as a result of a person’s age, sex, gender identity, sexual orientation, intersex status, ethnicity, religious belief or cultural, linguistic background, socioeconomic status or experience of past trauma …
Quality and safeguards
2.53There was widespread recognition amongst inquiry participants that the DSI bill endeavours to improve quality and safeguarding arrangements. For example, Lived Experience Australia commended the DSI bill’s ‘intent to address structural issues with accountability, reporting, funding, and safeguarding’.
2.54However, some stakeholders raised concerns about the adequacy of the DSI bill’s proposed accountability mechanisms, including the self-regulatory model, the lack of detail about the proposed code of conduct, and the oversight and complaints mechanisms.
Code of conduct
2.55There were some concerns about the lack of detail around the proposed code of conduct that would apply to funded service providers. For example, Professor Croucher from AHRC said:
The issue that is really, really missing in this bill is to see the accountability element. The lever is very poor one. The lever of regulation here is through codes of conduct and the tendering process and all of that. Insofar as that controls or focuses the objects on the dignity of the people for whom the services are being provided, it's a very weak lever.
2.56DANA supported the inclusion of more detail on the code of conduct in the bill itself, rather than leaving the detail to delegated legislation, given the ‘extremely large scope of organisations that will be covered by this’.
2.57The department highlighted that it would be the responsibility of the service providers receiving funding under the DSI bill to comply with, and ensure that their key personnel and staff comply with, the new code of conduct. The department committed to educating service providers of their obligations under the code of conduct, should the bill pass.
Compliance and reporting
2.58There was concern about the level of detail around compliance with the standards and monitoring and reporting on performance.
2.59The Commonwealth Ombudsman submitted that the bills did not appear to make ‘sufficient provision for robust and independent oversight’. He criticised the bill’s approach of leaving:
… the details of how the systems would be overseen and consequences for breaches … in departmental guidance, individual funding arrangements, or in delegated legislation.
2.60He argued that the failure to specify these details in the bill ‘increases the risk of inconsistent and non-transparent oversight mechanisms that … could generate confusion for users of the services’.
2.61National Ethnic Disability Alliance wanted to see special provisions in the bills that allow for ‘proactive monitoring’ of regulated activities and suggested that it is ‘insufficient and inadequate’ to solely rely on complaints made by people with disability and their families on services provided. Similarly, the AHRC expressed ‘doubt [that] the self-regulatory model will be sufficient to achieve the objectives of the bill’.
2.62In response to these concerns, the department referred to the statutory funding conditions under the bill, including subsequent guidelines that will deal with identified potential breaches of the code of conduct, and the requirements to establish and maintain complaints managements and resolution systems that ‘acknowledge the role of advocates and representatives of people with disability’.
2.63The department highlighted that the DSI bill makes provision for various legislative instruments that will ensure accountability, regulation, and oversight, and that these instruments are yet to be developed. They include the regulated activities, compliance, and information management instruments.
Regulatory burden on service providers
2.64Some stakeholders were concerned about the risk that the DSI bill’s quality and safeguarding requirements would impose an additional regulatory burden on disability service providers.
2.65Assistive Technology Suppliers Australia suggested certification and compliance requirements should be ‘commensurate to the service provided’. This was supported by Lived Experience Australia, who hoped the new system would ‘translate into greater capacity for services to prioritise and focus their resources on quality support’.
2.66Disability Council NSW recommended the bill should not impose additional regulation or replicate existing requirements for accessibility from other funding sources, such as wheelchair accessible taxis in NSW.
2.67In response to these concerns, the department highlighted one of the key features of the bills is regulatory alignment between the NDIS and disability services more broadly, benefitting users and service providers. The department stressed that this approach should make regulation simpler and reduce costs across suppliers and consumers, and that regulation would be commensurate to the risk and complexity of the service.
Co-design of delegated legislation
2.68Various organisations expressed concern that there would not be any further ability to influence the implementation of the bills and called for people with disability to be involved in the ongoing co-design of delegated legislation.
2.69JFA Purple Orange wanted the bills to require the code of conduct and regulations to be developed through a ‘genuine co-design process involving a diverse range of Australians living with disability’.
2.70DANA was of the view that given its large scope and coverage of organisations, the Code of Conduct and compliance mechanisms should be co-designed and ‘for regular and short review times as this large change is rolled out’.
2.71The department reiterated its intention to ‘consult in both the development and implementation of those instruments’, noting they are currently being drafted and there will be a process of consultation with key stakeholders, including representatives of people with disability before tabling in parliament.
Committee view
2.72The committee thanks the individuals and organisations who took the time to share their views and recommendations on the bills.
2.73The committee notes the extensive consultation undertaken by the department with many stakeholders as the bills were developed in 2022 and 2023, and the subsequent broad support for the bills to be passed. Submitters were supportive of repealing the DS Act to replace it with an enabling legislative framework which supports the inclusion of people with disability by broadening the supports and services that can be funded.
2.74The committee acknowledges that some stakeholders highlighted areas where the bill could be strengthened, including further embedding human rights, addressing intersectional issues, and providing further detail on the proposed compliance and oversight mechanisms.
2.75The committee notes the department intends to develop the legislative instruments in consultation with relevant stakeholders. The committee is of the view that the proposed consultative process to develop the legislative instruments will address the concerns raised by some stakeholders about the details of implementing the bills and co-designing this with people with disability.
2.76The committee also acknowledges the broader landscape of disability policy reform and the upcoming Government responses to the Disability Royal Commission and NDIS Review.
2.77The committee is of the view the bills will advance the interests of and outcomes for people with disability, families, and carers. The bills provide an updated and improved legislative framework to fund disability services and supports that harmonises regulation regardless of NDIS eligibility. The new legislative framework also sets a firm basis from which further changes to disability policy and programs can continue in response to the recent strategic reviews.
2.78The committee recommends the Senate pass the bills.
Senator Marielle Smith
Chair