Introductory Info
Date introduced: 14 September 2023
House: House of Representatives
Portfolio: Social Services
Commencement: Both Bills on the 28th day after Royal Assent
Purpose of
the Bill
The purpose of the Disability
Services and Inclusion Bill 2023 (the Bill) is to establish a new
legislative framework for the funding and regulation of programs targeted for
the benefit of people with disability, their families and carers. The purpose
of the Disability
Services and Inclusion (Consequential Amendments and Transitional Provisions)
Bill 2023 (the Consequential Amendments Bill) is to repeal the Disability Services
Act 1986 and to make amendments to a range of Commonwealth statutes to
reflect the repeal of the Disability Services Act and its replacement
with the Disability Services and Inclusion Act (DSIA).
Structure
of the Bill
The Bill consists of five Parts:
- Part
1 details the objects and principles of the Bill.
- Part
2 allows the relevant Minister to make, vary, or administer payments from the
Commonwealth to an eligible person or organisation to provide broadly specified
disability services and supports.
- Part
3 introduces the power to require that all service providers and their staff
who receive funding through this Bill adhere to a mandatory Code of Conduct and
sets out how the Secretary or accrediting authority may grant, vary or revoke
certificates of compliance.
- Part
4 sets out information management requirements to protect confidential
information related to people with disabilities.
- Part
5 specifies how the Minister and Secretary may delegate their powers under this
Bill and indicates how the Bill applies to partnerships and unincorporated
associations.
Background
Together, the Bill and the Consequential Amendments Bill
will replace the Disability Services Act with a new legislative
framework for the funding and regulation of programs for the benefit of people
with disability, to be called the DSIA.
The Disability Services Act became law following
the Hawke government’s consultation
and review of supports for people with disabilities, such as services
provided under the Handicapped
Persons Assistance Act 1974.
Currently, the Disability Services Act provides a
framework for the funding and provision of disability services across
Australia. The Explanatory Memorandum to the originating Bill states that the
‘provisions are more flexible and more responsive to the needs and aspirations
of persons with disabilities’.[1]
It was expected that the originating Bill would ‘also encourage innovation in
the provision of services for persons with a disability by providing for
financial assistance for research and development activities’.[2]
The objects of the Disability Services Act included
furthering the integration of people with disabilities into the community,
assisting people with disabilities to achieve positive outcomes, enabling
increased independence, supporting better employment opportunities, and
providing a positive image of people with disabilities.[3]
The Disability Services Act enabled the relevant
Minister to make grants of financial assistance to states and territories or to
‘eligible organisations’[4]
for capital works, research activities, disability services, and rehabilitation
programs.[5]
Developments since 1986
In the 37 years since the enactment of the Disability
Services Act, there have been numerous developments in the disability
sector, including changes in legislation, regulations, international
agreements, and the provision of disability services. There is also increasing
awareness of the abuse, neglect and violence which have been directed towards
people with disabilities, and the lack of safety, quality, and value in some
disability services.
Human rights and the Convention of the Rights of People
with Disabilities
Since 1986, there has been an increased focus on the human
rights of people with disabilities. An early example of a shift to a
rights-based approach occurred in 1992, with the passage of the federal Disability
Discrimination Act 1992. The
objects of the Disability Discrimination Act include:
to ensure, as far as practicable, that persons with
disabilities have the same rights to equality before the law as the rest of the
community; and
to promote recognition and acceptance within the community of
the principle that persons with disabilities have the same fundamental rights
as the rest of the community.
In his second reading speech for the Disability
Discrimination Act, then Minister for Health, Housing and Community
Services Brian Howe stated
that it was inspired by a:
vision [of] a fairer Australia where people with disabilities
are regarded as equals, with the same rights as all other citizens, with
recourse to systems that redress any infringements of their rights … where difference
is accepted, and where public instrumentalities, communities and individuals
act to ensure that society accommodates such difference.
The focus on the human rights of people with disabilities
continued when Australia ratified the international Convention
on the Rights of Persons with Disabilities (CRPD) in July 2008. Under
Article 33 of the Convention, countries are required to establish a framework
for promoting, protecting, and monitoring the implementation of the Convention.
In Australia, the National
Disability Strategy 2010-20, and subsequently Australia’s
Disability Strategy 2021–2031, were developed to ensure that the principles
underpinning the Convention were implemented. These strategies also contributed
to fulfilling Australia’s reporting responsibilities under the Convention.
The National Disability Insurance Scheme
Another major development since the passage of the Disability
Services Act in 1986 is the implementation of the National
Disability Insurance Scheme (NDIS). The main
component of the NDIS is individualised packages of support to eligible
people with disability. The support that the NDIS provides is tailored to each
participant’s needs and goals, and the NDIS aims to help
participants to use their individual plan to choose and purchase services
and supports from a competitive and consumer-driven marketplace. As of June
2023, more
than 610,000 Australians were receiving support from the NDIS.
The NDIS has had a substantial impact on the provision of
disability services, especially as the Scheme has grown. However, there are
many people with disability who are not
eligible for the NDIS, and the NDIS was never
intended to be the only provider of disability services in Australia.
The Disability Services Act provides authority for
the National
Standards for Disability Services, which is a set of regulations for
disability service providers. However, these regulations are
different to the NDIS Practice Standards. This means that providers who
deliver disability services both through the NDIS and outside it in the broader
disability sector are subject to two separate and overlapping regulatory
frameworks.
There has been recent discussion about the scale of fraud
by some disability service providers in the NDIS, with some
commentators suggesting that over a billion dollars could be lost to
fraudulent or unethical practices. In addition to undermining the integrity and
financial sustainability of the NDIS, fraud and
non-compliance harms and exploits people with disabilities. This has led to
an increased awareness of the necessity for disability services to be
appropriately regulated.
Inquiries into abuse, neglect and exploitation of people
with disabilities
The importance of effective regulation of disability
services has been highlighted by the findings of recent inquiries.
Senate Committee on Community Affairs
The Senate Committee on Community Affairs published its
report entitled: Violence,
abuse and neglect against people with disability in institutional and
residential settings, including the gender and age related dimensions, and the
particular situation of Aboriginal and Torres Strait Islander people with
disability, and culturally and linguistically diverse people with disability
in November 2015.
The committee recommended
that a Royal Commission into violence, abuse and neglect of people with
disability be called, with terms of reference to be determined in consultation
with people with disability, their families and supporters, and disability
organisations.
Royal Commission
The Royal Commission into Violence, Abuse, Neglect and
Exploitation of People with Disability (Royal Commission) was established
on 4 April 2019.[6]
Over a four year period, the Royal Commission uncovered
numerous
examples
of
abuse, neglect or substandard practices by disability service providers.
The Royal Commission took a human rights-focused approach in understanding the
forces that shape the lives of people with disabilities and making
recommendations for lasting change. The Royal Commission’s interim
report states that:
The CRPD sets out obligations for the Australian Government
to undertake to ensure and promote the full realisation of all human rights and
fundamental freedoms for all persons with disability, without discrimination of
any kind on the basis of disability.
Human rights play an important role beyond just imposing
legal obligations on government. They reflect a set of values, such as the
dignity, autonomy, freedom and equality of all people. The CRPD articulates
values and standards by which people with disability should be treated and
informs community values and standards … (p. 10)
The Bill is drafted to reflect those values and standards.
Consultation
According to the Explanatory
Memorandum to the Bill:
Between November 2022 and February 2023 a public consultation
was held to provide stakeholders with an opportunity to give feedback on plans
and underlying policy for the Bill (p. 5.)
Subsequently, the Department of Social Services carried
out a consultation
on the draft form of the Bill during the period 3 July 2023 to 13 August 2023.
It does not appear that the Department has published the submissions on its
website.
Committee
consideration
Community Affairs Legislation Committee
The Bills have been referred to the Community Affairs
Legislation Committee for inquiry and report by 9 November 2023. Details of the
inquiry are at the Inquiry
webpage. At the time of writing this Bill Digest, the Committee had received
11 submissions.
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing, the Senate Standing Committee for
the Scrutiny of Bills had not reported on this Bill.
Policy
position of non-government parties/independents
The views of the Opposition, independents, and other
parties are not known at the time of writing.
Position of
major interest groups
A number of stakeholders have said that a shortcoming of
the existing Disability Services Act is that it does not emphasise the
human rights of people with disabilities. In 1996, a review produced by the
Australian Law Reform Commission said
that ‘the Disability Services Act is inadequate’, stating that this was
because:
In the Commission's view the Act does not provide a legal
framework that advances Australia's efforts to discharge its international
human rights commitments. The Act fails to focus on people with a disability
themselves and their needs and rights. It focuses instead on funding services
which provide disability support (p. 31).
In 2022, disability sector stakeholders commented
that:
The [Disability Services] Act is now outdated, pre-dating key
legislative and policy reforms like the passing of the Disability
Discrimination Act 1992, inception of the United Nations Convention on the
Rights of Persons with Disabilities (UN CRPD), and the introduction of the
National Disability Insurance Scheme (NDIS) (p.3).
A variety
of stakeholders
have
said that human rights-based principles should clearly
underpin any new Disability Services Bill, and that it should give effect to
Australia’s international obligations.
In response to the discussion
paper and consultation
material circulated by the Department of Social Services, key sector
stakeholders welcomed the prospect of repealing and replacing the Disability
Services Act. Stakeholders noted
that while the 1986 Act was ‘progressive for its time’, a new Act could
better reflect a modern understanding of disability and ‘represents a
significant opportunity to provide the vision and direction for the rights of
people with disability in Australia for years to come’ (p. 3).
Financial
implications
The Explanatory
Memoranda to the Bill and to the Consequential Amendments Bill each state
that there are ‘no financial impacts’ arising from the Bills.[7]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[8]
Parliamentary
Joint Committee on Human Rights
At the time of writing, the Parliamentary Joint Committee
on Human Rights had not made any comments on this Bill.
Key issues
and provisions
Part 1—objects and principles of the Bill
Clause 3 of the Bill sets out the objects of the DSIA
(when enacted). The first of the objects is to give effect to the CRPD. In
addition, the objects of the DSIA include:
- to
provide funding— outside of the NDIS—to persons that provide supports and
services for the benefit of people with disability, their families, and carers:
paragraph 3(b)
- to
promote respect for the inherent dignity, difference, and individual autonomy
of people with disability: paragraph 3(d)
- to
protect the rights of people with disability who receive supports and services
under the DSIA by setting compliance standards and requiring disability
service providers to implement appropriate complaints management and resolution
systems: paragraph 3(f) and
- in
conjunction with other laws, to give effect to certain obligations that
Australia has as a party to various listed international treaties: paragraph
3(i).
The reference to those international treaties provides the
basis for the Constitutional
underpinning of the Bill—that is, the external affairs power in section
51(xxix) of the Constitution.
The external affairs power has been treated as having four aspects—one of which
is to enact laws of domestic application that implement international
agreements (treaties) to which Australia is a party.[9]
Clause 16 provides Constitutional limits to the powers of the Minister
to make, vary or administer arrangements or grants under the DSIA.
Clause 4 of the Bill sets out general principles
which provide overarching guidance for actions taken or services provided under
the DSIA. These principles emphasise that people with disabilities have
the same human rights as other members of Australian society, including the
inherent right to live a life free from violence, neglect, abuse, and
exploitation: subclause 4(2). The principles note that people with
disabilities are entitled to receive supports and services in a manner which
results in the least restriction of their rights and opportunities: subclause
4(7). They also have the same right as other members of Australian society
to pursue any grievance in relation to supports or services: subclause 4(8).
Key issue: lack of definition of disability
The Bill does not contain a definition of disability. The
Department of Social Services stated
that this choice was made following consultations, as a number of stakeholders
recommended different definitions of disability, while others did not want
a definition included in the Bill at all. In consultation materials, the
Department also stated
that the definition of disability included in the Disability Services
Act:
resembles the medical model of disability and does not align
with how we describe disability anymore. The department recognises that the
experience of disability is the product of barriers in an individual’s society
or environment. This is the social model of disability. [Emphasis in the
original]
As the Bill does not include a definition of disability it
does not restrict who can receive disability services and supports.
This provides a contrast with both the Disability
Services Act and the National Disability
Insurance Scheme Act 2013 (NDIS
Act). The Disability Services Act provides
services for people with a disability which is attributable to an intellectual,
psychiatric, sensory, or physical impairment (or as combination of these
impairments). The Disability Services Act also specifies that it is
targeted towards people with permanent disabilities who have a substantially
reduced capacity for communication, learning or mobility, and need ongoing
support services. The NDIS Act specifies (among other criteria) that it
is for people with an impairment that is likely to be permanent and results in
substantially reduced functional capacity to communicate, socialise, learn,
move around, undertake self-care activities, or organise their life.
Another difference is that the Disability Services Act
and the NDIS Act both require that a person must be an Australian
citizen or permanent resident (or a special category visa holder in the case of
the NDIS) in order to receive services.[10]
The Bill does not contain provisions restricting services by citizenship or
immigration status.
Part 2—funding
arrangements and grants
Eligible activities and regulated activities
Subclause 13(1) of the Bill empowers the Minister,
on behalf of the Commonwealth, to make, vary or administer an arrangement for
the making of payments to a person or to make, vary or administer a grant
of financial assistance to a person in relation to eligible
activities. The relevant activities are listed in paragraphs
13(1)(a) to (q) in the Bill.[11]
This is broader than the terms of the Disability
Services Act, under which the Minister is permitted only to provide
grants of financial assistance to states, territories, or eligible
organisations.[12]
Further, the list of eligible activities is
drafted more expansively than in the Disability Services Act because
they are described broadly in terms of being types of supports and services.
This may enable greater flexibility for providing new services and supports in
the future. In addition, subclause 13(2) provides that the Minister may
determine that an activity is an eligible activity by legislative
instrument.
Clause 11 of the Bill also provides that
the Minister may determine, by legislative instrument, that a specified kind of
eligible activity is a regulated activity.
Ms Rishworth stated that:
The bill is an enabling piece of legislation, providing a
single-source statutory framework and a clear basis for the Commonwealth to
fund certain disability supports and services outside of the NDIS that are not
covered by state and territory obligations under Australia's Disability
Strategy 2021-2031. It contributes to reducing the significant administrative
delays in implementing important programs that have resulted from disaggregated
legislative frameworks for disability services and supports.
The bill establishes clear authority to continue funding
existing programs, and at the same time, provides a flexible basis from which
to fund non-NDIS supports and services to respond to emerging needs and
changing circumstances both now and into the future.[13]
Eligible person
Arrangements for the making of payments, and grants of
financial assistance, must only be made to an eligible person: subclause
13(5). According to subclause 9(1) of the Bill a person is an
eligible person if:
- for an arrangement or grant in relation to an eligible
activity that is a regulated activity:
- the
person holds a certificate of compliance for the regulated activity or
- the
person is the subject of a determination by the Secretary requiring the person
to obtain such a certificate on or before a specified day. That day must be no
later than 15 months after the determination is made by the Secretary[14]
- neither the person nor any key personnel of
the person is subject to a banning order under section 73ZN of the NDIS Act.[15]
Importantly, the Bill does not mandate that the
Commonwealth provide any specific disability supports or services, nor does it
directly appropriate funding to provide services. Instead, the Bill creates a
broad and flexible legislative framework which enables the Commonwealth to
provide disability services and supports outside the NDIS.
Funding conditions
The Bill enforces regulatory standards for disability
service providers through its funding conditions. Any person or organisation
who receives Commonwealth funding under the Bill must adhere to the five
specified statutory funding conditions set out in clause 15 to the Bill,
as well as any additional terms and conditions as set out in a written
agreement with the Commonwealth.[16]
The five statutory funding conditions are
that the person or organisation:
- complies
with the relevant code of conduct: subclause 15(2)
- holds
a certificate of compliance (or is covered by a determination) if the funding
that they receive is for a regulated activity: subclause 15(3)
- implements
and maintains a complaints management and resolution system that is appropriate
for their size and operations. If people with disabilities choose to be
supported by an advocate or other representative in the process of making a
complaint, then the funding recipient must cooperate with, and facilitate
arrangements for, these advocates and representatives: subclause 15(4)
- implements
and maintains an incident management system which is appropriate for their size
and operations: subclause 15(5)
- is
not subject to a banning order that is in force under 73ZN of the NDIS Act:
subclause 15(6).
If the Minister is satisfied that a person or organisation
who has received funding under the DSIA has breached any of the
statutory funding conditions, then the Minister has the power to terminate or
vary a funding arrangement or grant, and to publish information about the
breach on a website maintained by the relevant Department: subclause 14(6).
All funding agreements must also contain provisions for
circumstances in which the person receiving funding must repay amounts to the
Commonwealth.[17]
Key issue—consistency of regulation
There are number of provisions in the Bill which support
consistency of regulation of disability service providers—in particular the
effect of a banning order under the NDIS Act. This provision helps to
ensure that a person who is unsuitable to provide disability services under the
NDIS rules cannot provide these services under a different regulatory scheme.
The provision for a code of conduct (discussed below) and the statutory funding
conditions that require people or organisations who receive funding to maintain
complaints and incident reporting systems are also broadly consistent with the NDIS
Act.[18]
Part 3—code of conduct and certificates of compliance
Code of conduct
According to the Minister for Social Services, Amanda
Rishworth, the Bill ‘improves quality and safeguarding arrangements by
introducing a mandatory code, which will mirror the NDIS Code of Conduct.’[19]
Clause 20 of the Bill provides for the making of
rules about a code of conduct which will apply to persons to whom money is paid
or a grant of financial assistance is made under clause 13.
Accreditation bodies
Clause 25 of the Bill empowers the Secretary to
approve accrediting authorities. This can occur only where the Secretary is
satisfied that:
- the
person is internationally recognised as a suitable person to perform those
functions and
- the
person will perform the functions effectively and in an independent and
impartial way.
The Secretary is also empowered to revoke an approval if
the conditions under which it was granted are no longer satisfied: subclause
25(3).
Certificate of compliance
Ms Rishworth further stated:
A provider delivering regulated activities is required to
obtain and hold a certificate of compliance. The standards under the current
act, the National Standards for Disability Services, will be remade under the
Bill, providing minimal disruption to providers who hold current certificates
of compliance. The key difference is that these standards can now be applied to
activities that were previously not regulated, where it is appropriate to do
so.[20]
Grant, revoke or vary a certificate
Subclause 21(1) of the Bill requires an accredited
certification body to grant a person a certificate of compliance for one or
more regulated activities provided that a written application has been made and
the body is satisfied that the person complies with the compliance standards
for those activities. A compliance certificate must be revoked if the
accredited certification body is satisfied that the person ceases to comply
with the relevant compliance standards: subclause 21(5). In addition, an
accredited certification body must vary a certificate of compliance in the
following circumstances:
- if
the body is satisfied the person no longer complies with the compliance
standards for a regulated activity—to exclude that activity or
- if
the person has made a written request to vary the certificate to include
additional activities—to include those activities provided that the body is
satisfied the person complies with the compliance standards for those
activities: subclause 21(8).[21]
Refuse a certificate
An accredited certification body may refuse to grant a
certificate of compliance. In that case, the body must give a written notice of
refusal to the person: subclause 21(4). The Bill does not contain a
right of review for such a decision. The Explanatory Memorandum provides the
following rationale for the absence of merits review:
… These decisions relate to whether a particular entity is
capable of performing a regulated activity based on their compliance with the
compliance standards. There is a substantial public interest in ensuring
adequate standards of quality assurance for funded services under the Bill. An
entity’s capacity to meet these standards will be determined by an independent
and internationally recognised accreditation body approved on the basis of
their skills and experience. A person who is aggrieved by a decision by an
accredited certification body can engage with the certification body itself.
Alternatively, it will be open to the person to make a further application for
certification or variation of certification as they consider appropriate.[22]
Duration of a certificate
A certificate of compliance starts on the day the copy of
the certificate is given to the person and continues until the earliest of the
following:
- the
day specified in the certificate
- the
day a revocation of the certificate takes effect
- if
the relevant accredited certification body ceases to be accredited—3 months
after the cessation: subclause 21(12).
Clause 22 allows the Secretary to recognise a
person’s compliance or certification under another comparable legislative or
other scheme. The Explanatory Memorandum gives the example of a provider who is
a registered NDIS provider (in which case the person is required to comply with
the NDIS Practice Standards).[23]
In that case, the Secretary is also empowered to revoke or vary a certificate.[24]
Key issue—reducing duplication in compliance
The Bill promotes consistency by reducing the duplication
of compliance requirements. The grant of ,a certificate of compliance to
service providers who meet alternative regulatory standards could assist
organisations who provide services across regulatory schemes. This potentially
means that such a provider would not have to meet the requirements of separate
but similar regulatory schemes. Meeting equivalent requirements (such as the
NDIS Practice Standards), could be recognised as meeting compliance standards
for disability services outside the NDIS. This could lead to a reduction of
regulatory burden, which may be of particular value to smaller disability
providers with lower administrative capacity. A lower regulatory burden may
also contribute to a wider variety of services being available in the market.
Part 4—information management
Clause 29 sets out the authorised uses and
disclosures of relevant information. Under clause 8 relevant
information means information obtained or generated by an entrusted
person in performing their functions or duties, or exercising powers,
under the DSIA or in assisting another person to do so.
Clause 8 also defines the term entrusted
person as: the Secretary; an APS employee; and/or any other person
employed or engaged by the Commonwealth to provide services to the
Commonwealth.
Clause 28 creates a criminal offence in
circumstances where an entrusted person has obtained or generated
relevant information in that capacity, the information is protected
information; and the person uses or discloses the information without
authorisation (clause 28(2). For the purposes of the offence protected
information is either:
- personal
information within the meaning of the Privacy Act 1988
or
- information
about the affairs of a person the disclosure of which could reasonably be
expected to found an action by a person (other than the Commonwealth) for
breach of a duty of confidence.[25]
The penalty for the offence is imprisonment for 2 years or
120 penalty units (currently
equivalent to $37,560), or both.
Consequential Amendments and Transitional Provisions
The Consequential Amendments Bill amends various
Commonwealth statutes to reflect the repeal and replacement of the Disability
Services Act. In most cases, such with as the Aged Care Act 1997
or the Freedom
of Information Act 1992, the change is only to replace the reference to
the Disability Services Act with a reference to the DSIA.[26]
Part 3 in Schedule 3 to the Consequential Amendments Bill
ensures that grants of financial assistance and agreements made under the Disability
Services Act can continue to be administered under the DSIA.
Similarly, provider accreditation and certificates of compliance which were in
force under the Disability Services Act can also continue to be valid
under the DSIA.
All governments face the problem of limited resources,
meaning that they cannot afford to fund all programs and services which could
potentially be of benefit to the population. Some pieces of legislation address
this by including eligibility criteria, which limits the scope and thus the
costs of programs or services.
The flexibility and lack of specified eligibility criteria
in the Bill allows a wide range of services to be provided, helping to ensure
that people who require disability services do not ‘fall through the cracks’.
For example, people who have temporary disabilities or are living in Australia
on a time‑limited visa may have been unable to receive services under the
NDIS or the Disability Services Act but may potentially be eligible
under the DSIA.
The lack of specific eligibility criteria or other
restrictions in the Bill do not mean that governments can avoid decisions about
resource allocation, but that decisions about eligibility will be made through
other policy and legislative decisions.