Chapter 1Introduction

1.1The Disability Services and Inclusion Bill 2023 (DSI bill) and Disability Services and Inclusion (Consequential Amendments and Transitional Provisions) Bill 2023 (Consequential Amendments and Transitional Provisions bill) (together, the bills) were introduced in the House of Representatives on 14 September 2023 by the Minister for Social Services, the Hon Amanda Rishworth MP (the Minister).

1.2On 14 September, the Senate referred the provisions of the bills to the Senate Community Affairs Legislation Committee (the committee) for inquiry and report by 9 November 2023.

Structure of the report

1.3This report contains two chapters. This chapter sets out:

the purpose of the bills;

government consultation on the DSI bill;

an overview of the provisions of the bills; and

general information outlining the conduct of the inquiry and other committees’ consideration of the bills.

1.4Chapter 2 examines submitters’ views on the bills and concludes with the committee’s view and recommendation.

Purpose of the bills

1.5Broadly, the bills aim to improve outcomes for the 4.4 million Australians living with disability,[1] through promoting a human rights-based, social model of disability and enabling people with disability to fully participate in the community and exercise agency over their lives.[2]

1.6The bills would repeal and replace the Disability Services Act 1986 (DS Act) with a modern and inclusive legislative framework for the funding and regulation of ‘certain disability supports and services outside of the NDIS [National Disability Insurance Scheme] that are not covered by state and territory obligations under Australia’s Disability Strategy 2021–2031’.[3]

1.7The DSI bill recognises major developments in disability policy, programs, service delivery, and funding models since the enactment of the DS Act in 1986.[4] This includes Australia ratifying the United Nations Convention on the Rights of Persons with Disabilities (CRPD)[5] in 2008 and the development and implementation of two national strategies – the National Disability Strategy 2010–20[6] and the current Australia’s Disability Strategy 2021–2031[7] – to enact the principles in the CRPD and implement them across disability policy and services. The Royal Commission into Violence, Abuse, Neglect, and Exploitation of People with Disability (Disability Royal Commission) has also delivered a final report.[8]

1.8Another important milestone was the establishment of the NDIS[9] in 2013 that now supports over 610,000 people with disability.[10]

1.9Concurrently, programs and supports for people with disability have shifted from direct service provision to include person-centred models of service delivery and support, including through the NDIS.

1.10In addition to expanding access to supports and services and broadening funding options, the DSI Bill also allows sufficient flexibility to accommodate future developments.[11]

1.11Further, the DSI bill aims to strengthen and harmonise quality and safeguarding arrangements that apply to funded disability service providers to protect people with disability from violence, abuse, neglect, and exploitation.[12]

1.12Repealing the DS Act and replacing it with a new enabling legislative framework will streamline funding, align regulatory schemes, provide for a Code of Conduct, and allow for enforcement of safeguarding measures through contracts.[13]

1.13The Consequential Amendments and Transitional Provisions bill would repeal the DS Act, make amendments to legislation that references the DS Act, and outline transitional arrangements for existing funding agreements to ensure service continuity.[14]

1.14The proposed legislative framework would operate alongside the NDIS, the Disability Discrimination Act 1992,[15] and other programs including the Disability Support Pension, Carer Payment, and Carer Allowance.[16]

Government consultation on the bills

1.15The Bills have been designed and drafted in consultation with the disability community, including people with disability, carers, families, advocates, service providers, peak bodies, community groups, and government agencies across all jurisdictions.[17]

1.16The Department of Social Services (the department) undertook two rounds of consultation:

an initial consultation period from November 2022 to February 2023 to seek feedback on ‘plans and underlying policy for the Bill’; and

consultation on the exposure draft of the bill between June and August 2023.[18]

1.17The department received 189 and 65 submissions for the first and second rounds of consultation respectively. Also, 255 individuals attended targeted seminars held for currently funded organisations from December 2022 to January 2023. An additional 295 people attended public online seminars from July to August 2023.[19] Feedback received through all the rounds of consultation was used to inform and refine the bills.

Key provisions of the bills

Disability Services and Inclusion Bill 2023

1.18The DSI bill has five parts:

(a)Part 1 – introductory and framing provisions;

(b)Part 2 – funding arrangements;

(c)Part 3 – quality and safeguarding arrangements;

(d)Part 4 – information management; and

(e)Part 5 – miscellaneous matters, including delegation of powers to the Minister and Secretary.[20]

Part 1

Objects and principles

1.19Clause 3 sets out the objects of the bill, which include: providing funding for disability supports and services that meet the needs of people with disability;[21] protecting the human rights of people with disability; Australia’s obligations under various international human rights treaties;[22] and advancing the inclusion and social and economic participation of people with disability.[23]

1.20Clause 4 outlines the general principles of the bill, including that people with disability are individuals who have the inherent right to respect and the same basic human rights as other members of Australian society.[24]

Definitions

1.21Clause 8 provides definitions for key terms, including different types of disability supports and services that can be funded under the bill.[25] Clause 9 sets out the eligibility requirements for a person to receive funding under an arrangement or grant. The Secretary may determine, by legislative instrument, what kinds of eligible activities are regulated activities for compliance purposes.[26]

Part 2

Funding arrangements and grants

1.22The Minister may make, vary, or administer an arrangement or grant of financial assistance to an eligible person[27] in relation to a list of eligible activities.[28] This includes supports and services in relation to accessibility, accommodation, advocacy, carers, employment, independent living, and other services; research, activities relating to furthering objectives of the bill; and activities determined by the Minister via legislative instrument.[29]

1.23The rules made by legislative instrument under the Act (‘the rules’) may set out matters to which the Minister must or may have regard in deciding whether to make or vary an arrangement or grant.[30]

Funding terms and conditions

1.24The terms and conditions on which money may be payable by the Commonwealth under an arrangement or a grant are the statutory funding conditions and any other terms and conditions set out in a funding agreement between the Commonwealth and the person.[31]

1.25The statutory funding conditions include: compliance with the code of conduct; a certificate of compliance or written determination by the Secretary for regulated activities; a complaints management and resolution system; an incident management system; and the absence of a banning order in force under section 73ZN of the NDIS Act.[32]

1.26If the Minister is satisfied that the relevant person has breached a statutory funding condition, the Minister may terminate or vary the arrangement.[33]

Part 3

Code of conduct, compliance, and accreditation

1.27The rules may set out a code of conduct that applies to persons to whom money may be payable by the Commonwealth under an arrangement or a grant.[34] The rules may stipulate circumstances in which a person breaches the code of conduct.[35]

1.28The rules may set out compliance standards[36] and alternative compliance standards that outline different requirements for different kinds of persons or regulated activities.[37]

1.29An accredited certification body[38] must grant a certificate of compliance to a person for meeting compliance standards if the person has made a written request and the body is satisfied that the person complies.[39] An accredited certification body must revoke a certificate of compliance if the body is satisfied the person ceases to comply with the compliance standards for the relevant regulated activity.[40]

Alternative compliance standards

1.30The Secretary may grant a person a certificate of compliance if the person has made a written request and the Secretary is satisfied that the person complies.[41] The Secretary must revoke a certificate of compliance if the body is satisfied the person ceases to comply with the alternative compliance standards for the relevant regulated activity.[42]

Part 4

Use and disclosure of information

1.31A person commits an offence if they have used or disclosed protected information in their capacity as an entrusted person,[43] such as the Secretary or APS employee.[44] An entrusted person may disclose relevant information for specified purposes,[45] including to perform their functions or duties under the Act.[46]

Part 5

Delegations

1.32The Minister may, by writing, delegate to certain people any or all of the Minister’s powers to:[47]

make, vary or administer an arrangement or grant in relation to eligible activities;[48]

terminate or vary the arrangement or grant, and/or publish information about the breach on a website maintained by the department, if satisfied that the relevant person has breached a statutory funding condition;[49] and

enter a funding agreement on behalf of the Commonwealth.[50]

1.33The Secretary may also, by writing, delegate certain powers.[51]

Rules

1.34The Minister may, by legislative instrument, make rules prescribing certain matters.[52]

Disability Services and Inclusion (Consequential Amendments and Transitional Provisions) Bill 2023

1.35The Consequential Amendments and Transitional Provisions bill has three Schedules:

Schedule 1 – repeals;

Schedule 2 – consequential amendments; and

Schedule 3 – application and savings provisions.[53]

1.36Schedule 1 repeals the DS Act.

1.37Schedule 2 makes amendments to the below Commonwealth legislation to ensure the original intention remains:

Aged Care Act 1997;

Aged Care Quality and Safety Commission Act 2018;

Age Discrimination Act 2004;

Australian Hearing Services Act 1991;

Child Support (Registration and Collection) Act 1988;

Freedom of Information Act 1982;

Hearing Services Administration Act 1997;

Human Services (Centrelink) Act 1997;

Human Services (Medicare) Act 1973;

Income Tax Assessment Act 1997;

Military Rehabilitation and Compensation Act 2004;

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988;

Social Security Act 1991; and

Veterans’ Entitlements Act 1986.

1.38Schedule 3 sets out transitional arrangements, including savings provisions and transitional rules. Savings provisions include instruments in force regarding grants, principles, accreditation and certificates of compliance, Disability Standards Review Panels, rehabilitation services, and delegations.

Compatibility with human rights

1.39The Statements of Compatibility with Human Rights (the statements) advise that the bills advance the protection of the rights of people with disability in Australia.[54]

DSI bill

1.40The statement indicates that the DSI bill engages the following human rights:

the right to equality and non-discrimination;

the rights of people with disability;

the right to freedom of opinion and expression;

the right to privacy and reputation and statistics and data collection; and

the right to presumption of innocence.[55]

1.41The DSI bill reflects the need to respect the inherent dignity, autonomy, and non-discrimination of persons with disabilities. It also promotes the right of people with disabilities to live independently and participate fully in all aspects of life.

Consequential Amendments and Transitional Arrangements bill

1.42The statement indicates that the Consequential Amendments and Transitional Arrangements bill engages the following human rights:

the right to privacy and reputation;

the rights of people with disabilities; and

the right to social security.

1.43The amendments to existing Commonwealth legislation aim to support people with disability by facilitating the DSI Bill and maintaining the original intention of other legislation that reference the current DS Act.

Consideration by other committees

1.44The Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) raised issues around the reversal of the evidential burden of proof, the availability of independent merits review, and the incorporation of external materials as existing from time to time.[56]

1.45The Scrutiny Committee made several requests to the minister for detailed advice, including on the necessity of the Secretary to have power to specify further purposes in determinations; the use of offence-specific defences; the alignment of excluding merits reviews with the Administrative Review Council’s guidance; methods of compliance with Commonwealth Rules and Procurement Guidelines; redress for individuals denied grants not based on merit; and whether aggrieved parties would be provided reasons for a refusal of merits review.[57]

1.46The Parliamentary Joint Committee on Human Rights (Human Rights Committee) made no comment on the bills in its Report 11 of 2023.[58]

Financial impact statement

1.47The Explanatory Memorandums for the bills do not outline any financial impacts.[59]

Conduct of the inquiry

1.48Details of the inquiry were made available on the committee’s website.[60] The committee contacted several organisations to invite written submissions by 29 September 2023. The committee received 14 submissions, as listed in Appendix 1.

1.49A public hearing was held in Canberra on 9 October 2023, with witnesses listed in Appendix 2.

Note on references

1.50References to Committee Hansard in this report are to proof transcripts. Page numbers may vary between proof and official transcripts.

Footnotes

[1]The Hon. Amanda Rishworth MP, Minister for Social Services, House of Representatives Hansard, 14 September 2023, p. 2.

[2]Disability Services and Inclusion Bill 2023, cl. 3.

[3]The Hon. Amanda Rishworth MP, Minister for Social Services, House of Representatives Hansard, 14 September 2023, p. 3.

[4]Explanatory Memorandum (EM), Disability Services and Inclusion Bill 2023, [p. 2].

[5]The United Nations Convention on the Rights of Persons with Disabilities (CRPD) sets out the fundamental human rights of people with disability. This international convention aims to promote, protect, and ensure the full and equal enjoyment of all human rights by people with disability, and promote respect for their inherent dignity.

[6]Department of Social Services, National Disability Strategy 2010-2020.

[7]Department of Social Services, Australia’s Disability Strategy 2021-2031.

[8]Established in April 2019 and running for 4.5 years, the Royal Commission into Violence, Abuse, Neglect, and Exploitation of People with Disability (Disability Royal Commission) investigated the violence against, and the neglect, abuse, and exploitation of people with disability. It found that across all age groups, people with disability experience considerably higher rates of violence than people without disability. The Disability Royal Commission’s Final Report made over 200 recommendations to further improve outcomes for people with disability.

[9]The main component of the National Disability Insurance Scheme (NDIS) is individualised packages that are tailored to specific needs and goals of eligible people with disability. It provides participants with the power to choose and purchase services and supports based on their own needs.

[10]The Hon. Amanda Rishworth MP, Minister for Social Services, House of Representatives Hansard, 14 September 2023, p. 2.

[11]The Hon. Amanda Rishworth MP, Minister for Social Services, House of Representatives Hansard, 14 September 2023, p. 4.

[12]The Hon. Amanda Rishworth MP, Minister for Social Services, House of Representatives Hansard, 14 September 2023, p. 4.

[13]Explanatory Memorandum (EM), Disability Services and Inclusion Bill 2023, [p. 5].

[14]EM, Disability Services and Inclusion Bill 2023 (Consequential Amendments and Transitional Provisions) Bill 2023, [p. 2].

[15] The Disability Discrimination Act 1992 increased focus on the human rights of people with disability, including objectives around promoting the equality of rights between people with disability and the rest of the community.

[16]Currently, the DS Act provides a framework for the Commonwealth Government to fund disability services across Australia. The implementation of the NDIS meant some disability services – those supporting eligible people with disability with individualised packages – are operated and funded under a separate National Disability Insurance Scheme Act 2013 with its own practice standards. Most Australians with disability do not access NDIS supports – of the 4.4 million individuals living with disability only around 600,000 are NDIS participants.

[17]EM, Disability Services and Inclusion Bill 2023, [p. 5].

[18]EM, Disability Services and Inclusion Bill 2023, [p. 5].

[19]Department of Social Services, Public Consultation on the Disability Services and Inclusion Bill 2023, Summary Report, September 2023.

[20]Disability Services and Inclusion Bill 2023, parts 1-5.

[21]Disability Services and Inclusion Bill 2023, subcl. 3(b), (g), (h).

[22]Disability Services and Inclusion Bill 2023, subcl. 3(a), (f), (i).

[23]Disability Services and Inclusion Bill 2023, subcl. 3(c), (e).

[24]Disability Services and Inclusion Bill 2023, subcl. 4(2)-(8).

[25]Disability Services and Inclusion Bill 2023, cl. 8.

[26]Disability Services and Inclusion Bill 2023, cl. 11.

[27]Defined in cl. 9 of the bill.

[28]Disability Services and Inclusion Bill 2023, subcl. 13(1).

[29]Disability Services and Inclusion Bill 2023, subcl. 13(1).

[30]Disability Services and Inclusion Bill 2023, subcl. 13(4).

[31]Disability Services and Inclusion Bill 2023, subcl. 14(1).

[32]Disability Services and Inclusion Bill 2023, subcl. 15.

[33]Disability Services and Inclusion Bill 2023, subcl. 14(6).

[34]Disability Services and Inclusion Bill 2023, subcl. 20(1).

[35]Disability Services and Inclusion Bill 2023, subcl. 20(2).

[36]Disability Services and Inclusion Bill 2023, subcl. 23(1).

[37]Disability Services and Inclusion Bill 2023, subcl. 24(1), (2).

[38]Under cl. 26 of the bill, accrediting authorities may accredit persons to be accredited certification bodies. Under cl. 25(1) of the bill, the Secretary may approve persons to be accrediting authorities. Under cl. 26(1), an accrediting authority must grant an accreditation to a body if the authority is satisfied that the person will perform those functions competently and impartially and the person has made a request to the authority for accreditation.

[39]Disability Services and Inclusion Bill 2023, subcl. 21(1).

[40]Disability Services and Inclusion Bill 2023, subcl. 21(5).

[41]Disability Services and Inclusion Bill 2023, subcl. 22(1).

[42]Disability Services and Inclusion Bill 2023, subcl. 22(5).

[43]Under cl. 8, ‘relevant information’ is defined as information obtained or generated by an entrusted person in: performing functions or duties, or exercising powers, under the Act; or assisting another person to perform functions or duties, or exercise powers, under the Act. Under cl. 8, ‘protected information’ is defined as 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. Disability Services and Inclusion Bill 2023, subcl. 28(1).

[44]Disability Services and Inclusion Bill 2023, cl. 8.

[45]Listed at cl. 29 of the bill.

[46]Disability Services and Inclusion Bill 2023, subcl. 29(1).

[47]Disability Services and Inclusion Bill 2023, subcl. 31(1).

[48]Disability Services and Inclusion Bill 2023, subcl. 13(1). Under subcl. 31(2)(a), the Minister must not delegate the power to make an arrangement or grant to an SES employee, or acting SES employee, in a Commonwealth Department other than the Department of Social Services.

[49]Disability Services and Inclusion Bill 2023, subcl. 14(6).

[50]Disability Services and Inclusion Bill 2023, subcl. 14(7). Under subcl. 31(2)(b), the Minister must not delegate the power to enter into a funding agreement to an SES employee, or acting SES employee, in a Commonwealth Department other than the Department of Social Services.

[51]Disability Services and Inclusion Bill 2023, cl. 32.

[52]Disability Services and Inclusion Bill 2023, cl. 36.

[53]Disability Services and Inclusion Bill (Consequential Amendments and Transitional Provisions) Bill 2023.

[54]EM, Disability Services and Inclusion Bill 2023, [pp. 40-48]; and EM, Disability Services and Inclusion (Consequential Amendments and Transitional Provisions) Bill 2023, [pp. 27-29].

[55]EM, Disability Services and Inclusion Bill 2023, [pp. 40-48].

[56]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 12 of 2023, 18 October 2023, pp. 15-23.

[57]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 12 of 2023; 18 October 2023, pp. 15-23.

[58]Parliamentary Joint Committee on Human Rights, Human rights scrutiny report: Report 11 of 2023, 18 October 2023, p. 3.

[59]EM, Disability Services and Inclusion Bill 2023, [p. 3].

[60] Senate Standing Committees on Community Affairs, Disability Services and Inclusion Bill 2023 [Provisions] and Disability Services and Inclusion (Consequential Amendments and Transitional Provisions) Bill 2023, https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/DisabilityServices (accessed 26 October 2023).