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.

Conclusion

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.