Reforming NSW disability support
Legislative structure and content
Discussion paper
January 2013
Table of contents
Ministerial foreword ....................................................................................................................... 4
1 Background and Context ........................................................................................................... 5
1.1 Introduction............................................................................................................................. 5
1.2 Why review the Disability Services Act 1993 (NSW)? ............................................................ 5
1.2.1 The NSW Government person centred disability support reforms ................................... 5
1.2.2 An integrated disability legal framework........................................................................... 6
1.2.3 Understanding the rights of people with disability in 2013 ............................................... 7
1.3 Putting this paper in context ................................................................................................... 9
1.3.1 Legislation, strategies and agreements ........................................................................... 9
1.3.2 The National Disability Insurance Scheme .................................................................... 10
1.4 Purpose, structure and content of this paper ........................................................................ 10
1.5 Who can contribute?............................................................................................................. 11
1.6 How can you contribute? ...................................................................................................... 12
2The Issues .................................................................................................................................. 13
2.1 Disability legislation scope – who and what should it cover?................................................ 13
2.1.1 What is this section about? ............................................................................................ 13
2.1.2 Purpose and overall objectives ...................................................................................... 13
2.1.3 Principles supporting the objectives ............................................................................... 15
2.1.4 Definitions ...................................................................................................................... 17
2.2 Choice and control in a person centred system.................................................................... 18
2.2.1 What is this section about? ............................................................................................ 18
2.2.2 Individual planning and funding ..................................................................................... 18
2.3 Safeguards and review of decisions ..................................................................................... 21
2.3.1 What is this section about? ............................................................................................ 21
2.3.2 What are safeguards in a person centred system? ........................................................ 21
2.3.3 Individual level safeguards ............................................................................................. 22
2.3.4 Service safeguards ........................................................................................................ 25
2.3.5 Community based safeguards ....................................................................................... 27
2.4 Community and participation ................................................................................................ 31
2.4.1 What is this section about? ............................................................................................ 31
2.4.2 Background .................................................................................................................... 31
2.4.3 Disability Action Plans.................................................................................................... 32
2.4.4 Awareness-raising ......................................................................................................... 33
2.4.5 Recognising the needs of different groups ..................................................................... 35
2.4.6 Respect for the home and family ................................................................................... 36
2.4.7 Participation in cultural life, recreation, leisure and sport ............................................... 36
3 Appendices ............................................................................................................................. 38
Appendix A: Discussion paper questions ................................................................................... 38
Appendix B: The NSW and National Context ............................................................................. 42
The National Disability Agreement (NDA) ............................................................................... 42
The National Disability Strategy 2010–2020 (NDS) ................................................................ 42
National Standards for Disability Services, 2011 .................................................................... 42
Stronger Together 2, 2011–16 ................................................................................................ 43
NSW 2021 .............................................................................................................................. 43
National Disability Insurance Scheme (NDIS)......................................................................... 43
Appendix C: Disability Services Act 1993 (NSW) Principles and Application of Principles ......... 45
Principles ................................................................................................................................ 45
Applications of principles ........................................................................................................ 45
Appendix D: Examples of principles used in some other Australian disability legislation ........... 47
Principles of the Disability Act 2006 (Vic)................................................................................ 47
Principles of the Disability Services Act 2011 (Tas) ................................................................ 48
Principles of the Disability Services Act 1993 (WA) ................................................................ 49
Appendix E: Definitions of ‘disability’ used in some other Australian disability legislation .......... 51
Disability Act 2006 (Vic) .......................................................................................................... 51
Disability Services Act 2011 (Tas) .......................................................................................... 51
Disability Services Act 1993 (WA) .......................................................................................... 51
Appendix F: Legislative planning principles used in some other Australian disability legislation 53
Disability Act 2006 (Vic) .......................................................................................................... 53
Disability Services Act 2011 (Tas) .......................................................................................... 53
Ministerial foreword
The NSW Government is committed to ensuring that people with disability in NSW, and their
families and carers, are at the front and centre of decision making. Ensuring a person centred
system is a key priority of the Stronger Together 2 reforms. It is also reflected in our historic
agreement with the Australian Government to make the National Disability Insurance Scheme a
reality for people in NSW.
Over the past 18 months I have led an extensive statewide consultation process, called Living Life
My Way. Around 4,000 people have participated in this process and have indicated their desire for
a reformed disability system based on self directed supports and individualised budgets.
Legislative change is now needed to help make the reform of the NSW disability system a reality.
To inform the legislative review, I am seeking your comments on this Discussion Paper, which
provides a detailed examination of the possible content and structure of the legislation.
In addition, a series of face-to-face consultations will be held across NSW. The Issues Paper,
Reforming NSW disability support – the fundamental legislative issues will form the basis of these
consultations. You can access the issues paper and read more about these consultations at
www.adhc.nsw.gov.au/dsareview
I want to hear from people with disability, their families and carers, service providers, advocates,
peak bodies and government agencies. More broadly I want to hear from all members of the
community with an interest in seeing NSW develop a strong legal foundation to ensure that people
with disability have greater choice and control over supports and services they access and have
greater opportunity to take part fully in society.
I look forward to your participation in this important process.
Andrew Constance
Minister for Disability Services
1 Background and Context
1.1 Introduction
The main NSW laws regulating disability funding and services are found in the Disability Services
Act 1993 (called from here the Act). The Act sets out an important framework that guides how
support and funding for people with disability are provided.
The NSW Government is reviewing the Act. The purpose of the review is to develop new disability
laws that reflect contemporary approaches to supporting people with disability.
1.2 Why review the Disability Services Act 1993 (NSW)?
The Act was made in 1993. It was developed in response to the requirements of the 1991
Commonwealth and State Disability Agreement and mainly provides for delivering, funding, and
regulating specialist services for people with disability. When it was made, the Act set out a
progressive, rights-based, approach to supporting people with disability.
In the 20 years since then, there have been significant changes in attitudes towards people with
disability and the ways that they are supported. Most important of these are:



respecting the independence of people with disability,
recognising the right of people with disability to be in control of their lives and to make or be
involved in decisions that affect them, and
ensuring people with disability can participate fully in Australian society.
The NSW Government is committed to a person centred system of disability support and services,
one that meets the individual needs and goals of people with disability and supports them to
realise their potential. This commitment reflects these changes in thinking.
The purpose of this review of the Act is to build a framework that reflects contemporary ways of
supporting people with disability and respects their individual rights. In order to do this it is
proposed that new disability laws be developed to:
1. facilitate the NSW Government’s person centred disability support reforms
2. create an integrated disability legal framework, which draws together different laws that
affect people with disability into one set of laws, and
3. reflect contemporary thinking about rights for people with disability.
1.2.1 The NSW Government person centred disability support reforms
The review of the Act provides an opportunity to consider ways in which disability laws can support
the new models for person centred supports and services.
People with disability and their families and carers have told us they want greater choice and
control over disability funding, supports and services. In Stronger Together 2, the second part of
the NSW Government’s 10-year plan to reform the disability system, a key priority is a person
centred disability system. This is also reflected in the outlined goals for people with disability in
NSW 2021, the NSW Government plan for policy and budget decision making. The Government’s
intention is to make sure that people with disability, and their families and carers are supported to
have choice and control over how their needs are best met.
In 2011 the NSW Government began the Living Life My Way consultations. These were conducted
across NSW to seek views on what a person centred disability system for NSW should look like.
Initial consultations, conducted between July and December 2011, looked at core features of a
person centred system from the perspectives of people with disability, family members and carers.
Consultations were also held with Aboriginal communities and people from culturally and
linguistically diverse backgrounds. In December 2011 and April 2012 consultation reports were
released.1
Based on the feedback received a discussion paper was developed.2 This outlined options for
reforms to create a person centred system in NSW. In 2012 a further round of consultations took
place to seek feedback on reform ideas outlined in the discussion paper. A further consultation
report was released in December 2012.3
In total, about 4,000 people with disability, family members, carers and service providers took part
in the Living Life My Way consultations and told us they support a person centred disability system
in which:




people with disability, their families and carers have choice and control over their support
arrangements to suit their needs,
people with disability are supported to achieve their full potential, live as independently as
possible and take part in the community and the economy,
families and carers are supported to have positive and healthy relationships and pursue
their own goals, and
the disability sector is diverse and sustainable, offering quality, person centred and cost
effective supports.
This review provides an opportunity to think about whether these views can be supported by
disability laws and how the laws should do this.
1.2.2 An integrated disability legal framework
In addition to the Act, two other NSW laws are particularly relevant to providing support to people
with disability in NSW: the Community Services (Complaints, Reviews and Monitoring) Act 1993
(NSW) (called from here the CS CRAM Act) and the Community Welfare Act 1987 (NSW) (called
from here the CW Act).
The CS CRAM Act:



provides for independent monitoring of some community accommodation services and
programs through a Community Visitor scheme,
sets up a system for responding to complaints by people who receive services from
organisations funded by the government, and
sets up a system to review some government decisions including those affecting people
with disability.
The CW Act provides a legislative basis for certain community funding and for establishing certain
councils and committees. The Disability Council of NSW is established under the CW Act. The
1
See Ageing, Disability and Home Care, Department of Family and Community Services NSW person centred approaches consultation website at
http://www.adhc.nsw.gov.au/about_us/strategies/person_centred_approach
2
NSW Government (April 2012) Living Life My Way – Putting people with a disability at the centre of decision making about their supports in NSW:
Discussion paper.
3
See Ageing, Disability and Home Care, Department of Family and Community Services NSW person centred approaches consultation website at
http://www.adhc.nsw.gov.au/about_us/strategies/person_centred_approach.
Disability Council is the official advisory body to the NSW Government on disability matters and its
duties, as set out under the CW Act, are to:



advise government on disability matters,
raise community awareness about people with disability and their aspirations, and
promote participation by people with disability in all aspects of the broader community.
The review of the Act offers an opportunity to think about whether certain parts of the CS CRAM
Act and the CW Act that relate to people with disability might be better placed in the proposed
disability legislation.
1.2.3 Understanding the rights of people with disability in 2013
The Act sets out important principles promoting, respecting and protecting the human rights of
people with disability. The review of the Act provides an opportunity to think about whether these
principles need to be updated to reflect contemporary thinking about the rights of people with
disability in 2012.
Since the Act began around 20 years ago, the United Nations has made the Convention on the
Rights of Persons with Disabilities (called from here the UN Convention). The focus of the UN
Convention, which Australia signed in 2007 and ratified in 2008, is on emphasising that people
with disability have the same human rights as all other people. The main purpose of the UN
Convention is to ‘promote, protect and ensure the full and equal enjoyment of all human rights and
fundamental freedoms by all persons with disabilities and to promote respect for their inherent
dignity’.4
The UN Convention is a binding international agreement that includes various obligations for
governments that are designed to ensure that the rights it describes are respected, protected and
fulfilled.
There are eight key principles in the UN Convention that guide what governments do to make sure
the rights of people with disability are respected, protected and fulfilled. They are:

Respect for inherent dignity, individual autonomy, including the freedom to make
one’s own choices, and independence of persons.
This means that every person is of equal worth and has the right to be treated with dignity
and respect. People with disability have an equal right to choose how to live their own lives,
to live on their own in the community if they wish and to enjoy the freedom to make their
own choices in the same way as others do.

Non-discrimination.
This means that people with disability have the right to be treated in the same way as
others and not be hindered from accessing services, education, work or social life or
participating in the community because of their disability.

Full and effective participation and inclusion in society.
This means that people with disability must be supported to be included in and take part in
Australian society equally with others and in ways that are meaningful and valuable to the
individual.
4
Convention on the Rights of Persons with Disabilities Article 1.

Respect for difference and acceptance of persons with disabilities as part of human
diversity and humanity.
People are different from each other in many ways. This means that people with disability
should be respected and accepted as being equal to all of the many different members of
society.

Equality of opportunity.
This means that action must be taken to ensure that barriers to opportunity for people with
disability are removed and that people with disability are supported to have equal
opportunities to take part in society.

Accessibility.
This means that governments must act to make sure that people with disability have the
same access to buildings, housing, services, information, leisure, and other areas of
community and social life as other people.

Equality between men and women.
This means that it is important to recognise and respond to the ways in which women and
men with disability may need different or further kinds of support to make sure their rights to
choose how to live their own lives and to have the freedom to make their own choices are
respected and supported.

Respect for the evolving capacities of children with disabilities and respect for the
right of children with disabilities to preserve their identities.
This means respecting children with disability and their family relationships as they grow up
and including children with disability in decisions as their capabilities change and grow.
We ask you to think about how these principles and rights should be reflected in the disability
laws.
1.3 Putting this paper in context
1.3.1 Legislation, strategies and agreements
A range of government strategies, agreements, standards, legislation, policies and plans affect the
way we support people with disability in NSW. The following table presents some important
components and you can find out more about some major developments at Appendix B. Any
changes the NSW Government makes to disability legislation and services must consider, and
where possible be consistent with, the objectives set down in these documents.
Law – International
United Nations Convention on the Rights of Persons with Disabilities
Law – Commonwealth
Disability Discrimination Act 1992 (Cth)
Disability Services Act 1986 (Cth)
Australian Human Rights Commission Act 1986 (Cth)
Law – NSW
Disability Services Act 1993 (NSW)
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
Community Welfare Act 1987 (NSW)
Carers (Recognition) Act 2010 (NSW)
Boarding Houses Act 2012 (NSW)
Anti-Discrimination Act 1977 (NSW)
Guardianship Act 1987 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Mental Health Act 2007 (NSW)
Strategies/agreements – Commonwealth
National Disability Agreement (NDA)
National Disability Strategy (NDS)
Agreement between the Commonwealth and NSW Governments on the National Disability
Insurance Scheme (NDIS)
National Quality Framework for Disability Services
Strategies/agreements – NSW
NSW 2021
Stronger Together 2
1.3.2 The National Disability Insurance Scheme
We are currently seeing historic changes in Australia’s approach to providing disability support and
services.
On 6 December 2012, the NSW and Australian Governments reached agreement that fully
establishes the National Disability Insurance Scheme (NDIS) across NSW from July 2018. The
agreement ensures that all people with disability across NSW have access to a scheme, based on
insurance principles, that guarantees lifetime coverage for the cost of reasonable and necessary
care and support.
The transition to the full scheme in NSW will build on the first stage NDIS launch site in the Hunter
Local Government Areas of Newcastle, Lake Macquarie and Maitland.
Work towards the NDIS sits alongside the NSW Governments disability reform initiative – Stronger
Together 2. The implementation of Stronger Together 2, and the associated legislative review, will
ensure NSW models key elements of individual choice and control and sector reform which
underpin the NDIS. Consistent with the feedback provided by many people with disability, families,
carers and service providers who participated in the Living Life My Way consultations, NSW is
committed, through the NDIS and Stronger Together 2, to a disability system that supports
independence, social and economic participation of people with disability.
The NSW legislative reform process will occur concurrently with the commencement of the NDIS
launch in the Hunter under Commonwealth NDIS legislation. Any new legislative amendments
recommended as a result of this review of the DSA will need to consider the Commonwealth NDIS
legislation and the agreed design and governance of the Scheme.
1.4 Purpose, structure and content of this paper
This discussion paper is structured according to a possible framework for new disability legislation.
It broadly discusses what could be contained in that legislation.
We have also released a companion issues paper, which focuses solely on the fundamental
issues for the review: Reforming NSW disability support – the fundamental legislative issues.
You can access the companion issues paper at www.adhc.nsw.gov.au/dsareview
While there is some reference to government policy in this paper, decisions about what will go into
the new legislation, and how it should be framed, have not yet been made. The aim of this paper is
to stimulate thinking and discussion about the proposed legislation and to seek your comments
about how you think the new disability legislation should work and what it should cover.
This paper adopts the following outline for thinking about the disability legislation based upon what
is currently in the Act, related NSW legislation, and what can be found in other disability laws
outside NSW:
Disability legislation scope – who and what should it cover?
This section sets the scene for the disability legislation, what it is to achieve, and who it applies to.
It includes discussion about the:



purpose and objectives of the disability legislation,
principles that may be included in the legislation to guide decision making and interpretation
of the Act, and
target group – this invites you to think about the group of people that the legislation should
cover.
Choice and control in a person centred system
This Part talks about some of the key parts of a person centred system for disability services,
supports and initiatives, which broadly fall under the following categories:


planning, and
funding.
Safeguards and decision review
This Part discusses protections that can be put in place for people with disability. It asks you to
think about:






natural safeguards and how these interact with disability legislation,
quality standards,
the Community Visitors scheme,
complaint mechanisms,
restrictive practices, and
review of decisions.
Community and participation
This Part covers what legislation can do to ensure that people with disability are included in their
community. It is set out in the following sections:






Disability Action Plans,
awareness raising,
Disability Council of NSW,
recognising the needs of different groups,
home and family, and
participation in cultural life, recreation, leisure and sport.
1.5 Who can contribute?
Many people will have insights and ideas to share. They include, but are not limited to:





people with disability, their families and carers,
service providers,
advocates,
peak disability and representative organisations, and
government departments, local government and community agencies.
We are interested in hearing from as many people and groups as possible.
1.6 How can you contribute?
This paper is set out along the lines of possible parts of the legislative framework. At the end of
each section we ask questions and suggest issues you may wish to think about. We also repeat all
the questions at Appendix A. What you comment on is up to you. Some people may wish to tell us
about their experience of only one, or perhaps a few, issues. Some people, or groups, may have
something to say about all of the issues. Others may be familiar with disability legislation and wish
to comment on issues outside those set out in this paper.
We are interested in and welcome all contributions.
There are several ways you can contribute.
Attend a public meeting
You may wish to speak to us directly. The fundamental issues outlined in the companion issues
paper: Reforming NSW disability support – the fundamental legislative issues will form the basis of
a series of state-wide consultation events.
Registration for these events is essential.
Details of the events and registration process can be found on our website:
www.adhc.nsw.gov.au/dsareview
Write to us
The closing date for all written comments is 5:00pm Monday 18 February 2013.
This discussion paper will be available on the Ageing, Disability and Home Care website at
www.adhc.nsw.gov.au/dsareview
The paper is also available in Braille and large print formats.
Printed copies can be obtained by calling 1800 446 470.
You can submit your views by:
Email:
dsareview@facs.nsw.gov.au
Post:
The Disability Services Act Review Team
Ageing, Disability and Home Care
Department of Family and Community Services
Level 5, 83 Clarence Street
SYDNEY 2000
You should be aware that requests to access written submissions may be made under the
Government Information (Public Access) Act 2009 (NSW).
2
The Issues
2.1 Disability legislation scope – who and what should it cover?
2.1.1 What is this section about?
In this section we ask you to think about who the new disability legislation for NSW should cover
and what it should include. This includes thinking about:



the purpose and objectives of the legislation – what is it trying to do?
the principles that should apply, for example to guide funding and services, and
who the legislation should cover and why.
2.1.2 Purpose and overall objectives
The objectives of legislation:



outline what the government is trying to achieve by making the law,
set out how the government thinks the legislation should apply, and
guide how the legislation is to be understood and applied.
The Disability Services Act 1993 (NSW) is the main law in NSW for providing supports and
services to people with disability. The Act provides a legal basis for allocating limited public
resources based on certain criteria, to a particular group of people with disability. The Minister for
Ageing and Disability Services has responsibility for the Act and the functions are carried out by
Ageing, Disability and Home Care (ADHC), Department of Family and Community Services NSW.
When the Act was introduced to Parliament in 1993, the Minister at the time explained that its
main purpose was to ensure that people with disability have the same basic human rights as other
members of the community.5 The NSW Act was based upon a similar Act passed by the
Commonwealth Government66 and that the States and Territories were required to put in place
under the Commonwealth and State Disability Agreement which governed funding arrangements.
The Act sets out six main purposes, expressed as the Objects, as follows:
(a) to ensure the provision of services necessary to enable persons with disabilities to achieve
their maximum potential as members of the community, and
(b) to ensure the provision of services that:
(i) further the integration of persons with disabilities in the community and complement
services available generally to such persons in the community, and
(ii) enable persons with disabilities to achieve positive outcomes, such as increased
independence, employment opportunities and integration in the community, and
(iii) are provided in ways that promote in the community a positive image of persons with
disabilities and enhance their self-esteem, and
5
New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 11 March 1993, the Hon J Longley, MP, Minister for Community
Services, Second Reading Speech at 769.
6
Disability Services Act 1986 (Cth).
(c) to ensure that the outcomes achieved by persons with disabilities by the provision of services
for them are taken into account in the granting of financial assistance for the provision of such
services, and
(d) to encourage innovation in the provision of services for persons with disabilities, and
(e) to achieve positive outcomes, such as increased independence, employment opportunities and
integration in the community, for persons with disabilities, and
(f) to ensure that designated services for persons with disabilities are developed and reviewed on
a periodic basis through the use of forward plans.7
The Objects of the Act were influenced, in part, by international human rights agreements at the
time. The Objects focus mainly on providing specialist disability services to people with disability to
achieve those human rights. When the legislation began in 1993 it was forward thinking. However,
the Act is now 20 years old and could be updated and refreshed to reflect current thinking about
how people with disability should be supported.
The vision for the NSW disability system set out in Stronger Together 2 and confirmed in the
Living Life My Way consultations is a system based on self directed supports and individualised
budgets. It is a system where people with disability are supported to achieve their full potential, live
as independently as possible and participate in the community and the economy. The focus of the
existing Act on funding specialist services for people with disability does not specifically reflect this
vision.
Current thinking also focuses on the importance of the whole of government (and not just those
departments or agencies that are responsible for disability services and funding) and of the
community having roles and responsibilities for enabling people with disability to be included and
take part in the life of the community in the same ways as others. For example, the objectives of
the Queensland Disability Services Act 2006 and the Victorian Disability Act 2006 look beyond
funding, providing and regulating specialist disability services to consider the issues facing people
with disability more broadly and a similar approach could be adopted with the new legislation.
Currently the Act does not set out a specific purpose for the legislation. It is not necessary to have
both a purpose and objects section. However, one reason for having both could be to set out the
main purpose of the legislation and then set out in more detail the objectives of the Act for
reaching that purpose. The Victorian Act takes this approach. Set out below is the purpose of that
Act:
The purpose of this Act is to enact a new legislative scheme for persons with a disability
which reaffirms and strengthens their rights and responsibilities and which is based on the
recognition that this requires support across the government sector and within the
community.8
Issues for consideration
7
8
Disability Services Act 1993 (NSW) s3.
Disability Act 2006 (Vic) s1.
1. What do you think are the main objectives that the new disability legislation should
aim to achieve?
2. Do you think the Objects in the current Act are sufficient or reflect current ways of
thinking about people with disability in our community? If not, how do you think
they should be changed?
3. Do the objectives in any other pieces of legislation that you may be aware of provide
guidance for what should be in the NSW legislation? If so, which ones?
4. Do you think there should be a purpose section as well as an objects section? If so,
what do you think this should say?
5. What do you think are the key roles and functions for Ageing, Disability and Home
Care, Department of Family and Community Services NSW, as the lead public
sector agency in the NSW disability sector? Do the Objects of the current Act
reflect these functions? If not, how should they be changed?
2.1.3 Principles supporting the objectives
In addition to the Objects, the Act includes a set of principles (the Principles). 9 In general, funding,
support and services provided for under the Act must be consistent with the Objects and the
Principles. The Act’s Principles begin:
Persons with disabilities have the same basic human rights as other members of Australian
society. They also have the rights needed to ensure that their specific needs are met.10
The following table lists the main rights that people with disability have as set out in the
Principles.11
Descriptor
Principles
Respect
(a) persons with disabilities are individuals who have the inherent right to
respect for their human worth and dignity
Being part of the
community
(b) persons with disabilities have the right to live in and be part of the
community
Realising individual
capacities
(c) persons with disabilities have the right to realise their individual
capacities for physical, social, emotional and intellectual development
Services to support
quality of life
(d) persons with disabilities have the same rights as other members of
Australian society to services which will support their attaining a
reasonable quality of life
Being free to choose
(e) persons with disabilities have the right to choose their own lifestyle
and to have access to information, provided in a manner appropriate to
their disability and cultural background, necessary to allow informed
9
Disability Services Act 1993 (NSW) Schedule 1.
Disability Services Act 1993 (NSW) Schedule 1.
11
See Disability Services Act 1993 (NSW) Schedule 1.
10
Descriptor
Principles
choice
Taking part in
decision-making
(f) persons with disabilities have the same right as other members of
Australian society to participate in the decisions which affect their lives
Least restriction
(g) persons with disabilities receiving services have the same right as
other members of Australian society to receive those services in a
manner which results in the least restriction of their rights and
opportunities
Complaints about
services
(h) persons with disabilities have the right to pursue any grievance in
relation to services without fear of the services being discontinued or
recrimination from service providers
Safeguards
(i) persons with disabilities have the right to protection from neglect,
abuse and exploitation
In addition to the Principles, the Act includes descriptions about how these Principles should apply
to services funded under the Act and provided to people with disability (called the Application of
Principles).12 The Application of Principles requires that services and programs must be ‘designed
and administered’ in a specific way. The Application of Principles (along with the Principles) are
set out in Appendix C.
As with the Objects, the review of the Act provides scope to update and refresh the Principles, and
particularly to align them with the proposed person centred reforms for the disability support
system. You may wish to think about principles expressed in other legislation, and the UN
Convention, to give some guidance. Appendix D sets out a few examples of different styles of
principles used in some other Australian disability legislation.
Issues for consideration
6. What principles should be reflected in disability legislation? Why?
7. How could the Act’s principles be improved to ensure that people with disability are
placed at the centre of planning, decisions and delivery of support and services?
8. Are the Act’s principles and applications effective in ensuring the human rights of
people with disability are protected?
12
Disability Services Act 1993 (NSW) Schedule 1.
2.1.4 Definitions
2.1.4.1 Defining ‘disability’
The way we define ‘disability’ under the disability legislation is very important. It requires us to
think carefully about what the legislation is trying to achieve and as a result, who should be
covered by the legislation. Importantly, those aspects of the legislation that deal with access to
funding or support must define the intended group of people who will be entitled to access the
funding or support in a way that:


takes into account the government’s need to prioritise how it uses limited resources, and
can ensure that disability funding, support and services can continue to be provided into the
future for those individuals who most need them.
Even with the additional $2 billion that the NSW Government is investing in disability services
under Stronger Together 2, resources will still be limited and support will be provided to those
people who have the greatest need. It is for this reason that the group of people entitled to access
support or funding will not be expanded under the new legislation.
However, as discussed under 2.1.2, other states’ laws look beyond funding, providing and
regulating specialist disability services to consider the issues facing people with disability more
broadly. What we need to think about is whether the current definition is appropriate for any
aspects of the legislation that do not relate specifically to funding.
The Act defines disability in terms of a ‘target group’ at section 5:
(1) For the purposes of this Act, a person is in the target group if the person has a disability
(however arising and whether or not of a chronic episodic nature):
(a) that is attributable to an intellectual, psychiatric, sensory, physical or like impairment or
to a combination of such impairments, and
(b) that is permanent or is likely to be permanent, and
(c) that results in:
(i) a significantly reduced capacity in one or more major life activities, such as
communication, learning, mobility, decision-making or self‑care, and
(ii) the need for support, whether or not of an ongoing nature.
(2) For the purposes of this Act, the following persons (within the meaning of the Mental Health Act
2007) are in the target group, but only if the services provided for their care are not inconsistent
with the objects and relevant requirements of that Act:
(a) an involuntary patient or a forensic patient,
(b) a person subject to a community treatment order,
(c) a person under detention in a mental health facility.
(3) For the purposes of this Act, a service is taken to be provided for persons in the target group if
and only if it is provided predominantly for persons in the target group.
Generally, all States and Territories define disability (and the target group for the legislation) in
their equivalent disability legislation on the basis of three factors:



a description of the type of disability
whether the disability is permanent (or likely to become so)
the impact on the person’s capacity for everyday activities and their need for support.
Appendix E sets out the definitions of disability used in some other States and Territories.
2.1.4.2 Defining other terms in the legislation
The key definition for the legislation will be that of ‘disability’, but it will also be necessary to define
other terms in the legislation. We will consider these when a clearer picture has emerged of what
needs to be in the legislation. However, we welcome any views that you may have about other
definitions that you would like us to consider now.
Issues for consideration
9. How should ‘disability’ be defined for the purposes of the NSW disability legislation?
Why?
10. Are there any other terms that you think should be carefully defined within the
legislation? If so, please advise which ones and why?
2.2 Choice and control in a person centred system
Families and people with disability want control over what, when, where and who to
support them. They want support so that they can have a dream, have a life and move
towards a goal.13
2.2.1 What is this section about?
Contemporary approaches to supporting people with disability emphasise the importance of
people having choice and control over the supports they receive to live life their way. The NSW
person centred disability system reforms reflect this focus.
In this section we ask you to think about how legislation can best enable people with disability to
have greater choice and control over their support arrangements to suit their needs and goals and
live as independently as possible.
2.2.2 Individual planning and funding
The majority of disability services in NSW are currently delivered under ‘block funding’
arrangements by non-government organisations and ADHC.14 These arrangements are inflexible
and give people with disability, their families and carers little opportunity to decide how and by
whom their needs are met and support is delivered.
The NSW Government has committed to ensuring that people in NSW who receive disability
services and supports will be able to access individualised funding arrangements from 1 July
13
NSW Government (December 2010) Stronger Together: A new direction for disability services in NSW 2006–2016. The second phase 2011–
2016 at p14.
Block funding is where funding is provided for a ‘block’ of services to be delivered to clients who meet a certain criteria, or are referred to the
provider as part of an ‘individualised plan’.
14
2014. This is a key reform to the disability system and will offer greater choice and a stronger say
for people with disability and their carers.
The reform means that eligible people with disability will be able to choose from a range of options
to manage their support arrangements. They will be able to:




manage an individualised budget directly,
access assistance with ‘fund holding’, that is, with the day to day financial management and
administration of their individualised budget (such as maintaining accounting records and
paying invoices, and completing reconciliation and reporting requirements for government),
access assistance with coordinating their supports, that is, identifying and managing their
own supports once their package has been decided including choosing, training,
employing, and managing personal support staff, and managing associated employer, legal
and administrative requirements such as superannuation and insurance, and
select a service provider to deliver their supports who is directly paid by ADHC.
Under individualised budget arrangements people with disability will be able to purchase supports
and services if these are reasonable, related to their disability needs, and help achieve particular
goals and outcomes, such as the goals identified in a support plan. People will be able to
purchase supports and services from a wide range of providers, including specialist disability
services and mainstream services providers.
2.2.2.1 Broadening the range of service providers
The Act currently allows people with disability to receive funds directly,15 however, generally
speaking, funding can only be spent on ‘designated services’ which are those funded or provided
by the Minister and set out under the regulations. In some other States, the law clearly allows a
person with disability (or a nominated person) to receive funding for disability services or other
mainstream goods and services.16 Generally, purchases made with this funding will need to be
tied to the person’s identified needs or to their individual support plan (see below).
In the future, people with disability with an individualised budget will not be restricted to purchasing
services from specialist disability service providers. Rather they will be able to choose to purchase
their support from a broad range of service providers. Alternatively, they may choose to employ
their own staff, accepting responsibility for managing and meeting all associated legal and
administrative obligations.
2.2.2.2 Linking funding to individual plans
Individual planning will be an important aspect of the new system. People with disability who are
eligible for an individualised budget will be assisted to develop an individual support plan. This
plan will be used to help decide upon a person’s individual budget. It will identify a person’s life
goals and aspirations, the support necessary to achieve those goals, those aspects of this support
that can be met through a person’s informal support networks and mainstream services, and the
level of support required from the specialist disability system.
15
16
Disability Services Act 1993 (NSW) s10.
See for example Disability Services Act 2011 (Tas) s14(1)(c).
Case study: the person centred approach in action17
Paul, now in his sixties, was diagnosed with an intellectual disability as a child. To achieve
his goals, he has support from the provider he has chosen. In his person centred plan, Paul
said he wants to learn new life skills so that he can live independently in his own home and
continue to participate in his local community. He also wants to learn to read, write and do
basic mathematics so he can do essential things such as reading signs and using money.
Paul now lives on his own and works in supported employment. He loves his job in a
commercial café where he clears tables, washes dishes, heats Meals on Wheels packs and
prepares the fruit and vegetables. According to the chef, Paul “has never missed a day of
work” and “makes everyone laugh when it gets a bit stressful”.
The local community is supportive and inclusive of people with disability. It is hoped that,
with individualised funding and a supportive environment, Paul can continue to live life the
way he wants.
The Act does not currently include any references to individual plans. While it is possible to deal
with individual plans on a policy basis (that is, without making any laws about individual plans),
legislation in some other states regulates individual planning and links it to funding. For example,
in Victoria, anyone who requires ongoing funding must have a support plan identifying the services
being provided.18 Also, if the person asks the disability services provider to help them with
preparing the plan then the provider must do so.19
2.2.2.3 Planning principles and content
Planning principles reinforce the intention that people with disability should be at the centre of
decision making about the things that affect their lives, such as the people who assist and support
them. They may also guide the planning process without being too inflexible, leaving room for
creativity and innovation in planning for services and supports.
In the Living Life My Way consultations a number of elements were identified as reflecting
effective person centred planning. In general, people said that supports and services should be
directed at achieving good outcomes in terms of the person’s health, safety, wellbeing and social
participation.
Taking an ‘outcome focused’ approach to planning would consider the:





person’s needs and life stage
family context and the support provided by their family and friends
person’s likes, interests, aspirations and goals
opportunities for community and social participation
opportunities for economic participation (employment).
Case scenario adapted from Ageing, Disability and Home Care, Department of Family and Community Services NSW (July 2010) Aiming High –
New directions in day programs for adults with a disability.
18
Disability Act 2006 (Vic) s54.
19
Disability Act 2006 (Vic) s53.
17
Planning would also need to consider the ways to enable the person to achieve the outcomes that
they have identified. These could include access to:





mainstream and community based supports and services
supports provided by family and friends
disability related supports and services
aids and equipment
information and training.
Appendix F sets out how some other Australian legislation addresses planning.
Issues for consideration
11. What should the legislation cover in a person centred system?
12. Should the legislation refer to or regulate individual planning?
13. Should the legislation include principles to guide the development of individual
plans? If so, what should these be?
14. Should the legislation contain the power to make standards or guidelines for
individual plans that:
o protect the rights of people with disability? and
o regulate access to funding?
15. Should the legislation include a requirement about the broad purpose for which
funds will be provided under individualised funding? If, so what should this be?
16. Should the legislation contain a power to specify the type of services and support
that can be funded?
17. Should the legislation describe the types of funds management arrangements that
can be used and under what circumstances (for example, fund holding or support
coordination?
18. Should the legislation require that certain types of funding will only be provided
where an individual plan is in place?
19. Should the legislation provide government with the power to limit the arrangements
by which some people can manage their own funds if the risks outweigh the
benefits?
2.3 Safeguards and review of decisions
2.3.1 What is this section about?
Moving to a person centred system requires thinking about what safeguards are needed to
minimise risks to people with disability while respecting individual choice and control. In this
section we ask you to think about the role disability legislation can play to ensure that people with
disability have the same protection of rights as others in the community.
2.3.2 What are safeguards in a person centred system?
Safeguards are those measures that aim to minimise the risk of harm to a person with disability
and protect their right to be safe. In a person centred approach safeguarding requires a difficult
balance to be struck between maximising choice and control and ensuring adequate protection for
those who need it.
The transition to a system focused on self directed supports and individualised budgets will require
a significant rethink about the way safeguarding is understood, managed and negotiated with
people with disability. Approaches to safeguarding will need to be considered broadly so as to
cater for the range of support options possible in person centred system.
There are numerous elements to safeguarding in a person centred system including information
and advice, assessment, planning, fund holding, support coordination, community linking and case
management. It is expected that other safeguards will also be required. The key issue for
consideration for the review is what aspects of person centred system safeguarding should be
built into legislation.
To think about safeguards in a person centred system and stimulate discussion it is useful to
consider three levels:



Individual safeguards – These are those safeguards that relate to and influence the way
that individuals are supported. They include ‘natural’ safeguards which arise from
reorienting support to foster greater choice and control, community inclusion, family
supports, and the building up of other relationship networks for people with disability. They
also cover identifying particular risks and ensuring measures are in place to address these
and protect the rights of people with disability.
Service safeguards – These are processes which guide the provision of support at the
specialist disability support provider level. Service safeguards include quality frameworks
and other approaches to improve interactions with service providers.
Community based safeguards – these include setting up appropriate complaint handling
mechanisms and having processes in place so that people can ask for a review of certain
decisions.
2.3.3 Individual level safeguards
Individual level safeguards relate to assessment, planning, access and receipt of support. They
include practices, such as maximising choice and control for support, which establish ‘natural
safeguards’ through empowering people with disability. They also include identifying individuals
who may be at particular risk and implementing practices to protect their right to be safe.
Examples of individual level safeguards which will be supported under the system of self directed
supports and individualised budgets include:



Individuals being informed of their right to be free from abuse and harm and supported to
exercise their rights, including access to advocacy and community resources which provide
information and support.
Effective planning including effective risk assessment which enables informed choice and
the early identification of those that may be at risk. The level of risk will be dependent on
the type and level of disability, a person’s capacity to represent themselves, their formal
and informal network and living arrangements.
Supporting the development of positive relationships and community connections. These
create natural safeguards for individuals by providing an environment of support and
allowing people to have someone they can raise and share concerns with.
2.3.3.1 Restrictive practices
For a very small proportion of people with an intellectual disability who display challenging
behaviours and pose a high risk of harm to themselves or others, ‘restrictive practices’ may be
required. These are considered to be a measure of last resort where other positive behavioural
strategies were unsuccessful.
Restrictive practices are certain strategies or practices which impose restrictions on someone’s
rights or freedoms implemented with the intention of influencing or changing behaviour. Restrictive
practices require legal consent because they put limits on an individual’s rights and freedom.
Restrictive practices can include:




physical or mechanical restraints to prevent a person from moving or behaving in a certain
way
seclusion — confining an adult on their own in a place which they are unable to leave
restricted access — using physical barriers such as locks to limit access to particular items
or activities
psychotropic medication where prescribed by a medical practitioner and used on an ‘as
required’ basis.
There are comprehensive guidelines based on best practice principles governing restrictive
practices for people with disability receiving services directly from, or funded by, ADHC.20 A
distinct number of restrictive practices also have significant additional safeguards placed upon
their use by ADHC. They are known as restricted practices. The use of a restricted practice must
be informed by strict guidelines which provide clear conditions and limitations on their use. These
conditions and limitations should be detailed in a documented plan which requires:
a) appropriate informed consent, and
b) authorisation by an internal Restricted Practice Authorisation mechanism.
ADHC’s Clinical Innovation and Governance Directorate monitors the use of Restricted Practice
Authorisation mechanisms by ADHC and their application across the disability sector. However,
NSW has no legislation that specifically regulates the use of restrictive practices for adults with
disability.21 This was noted by the NSW Legislative Council in 201022 and contrasts with Victoria,23
Tasmania,24 the Northern Territory,25 and Queensland,26 which all have legal provisions to control
the use of restrictive practices and to protect the rights of people with disability including:



20
requiring positive behaviour support plans for all people with challenging behaviours when
approval for restrictive practices is sought,27
recognising that restrictive practices should only be used as a last resort,
prohibiting the unauthorised use of restrictive practices,
Ageing, Disability and Home Care (April 2011) Behaviour Support Policy.
The use of or prohibition on the use of certain restrictive practices relating to children are regulated under the Children and Young Persons (Care
and Protection) Act 1998 (NSW) and Children and Young Persons (Care and Protection) Regulation 2012 (NSW). The Guardianship Act 1987
(NSW) and the Guardianship Regulation 2010 (NSW) regulate the appointment, and the exercise of the functions, of guardians who may be
authorised to consent to the use of restrictive practices for the management of challenging behaviour for people over the age of 16 years.
22
Legislative Council (2010) Substitute decision-making for people lacking capacity, Standing Committee on Social Issues, recommendation 27.
23
Disability Act 2006 (Vic) Part 7.
24
Disability Services Act 2011 (Tas) Part 6.
25
Disability Services Act 2012 (NT) Part 4.
26
Disability Services Act 2006 (Qld) Part 10A.
27
Whilst not limiting or being seen to limit the use of such plans only to these circumstances. See Disability Services Act 2006 (Qld) s123D, s123L,
and Part 10A subdivision 2.
21



requiring that approval for particular restrictive practices takes into account whether it is the
least restrictive way of ensuring the safety of the person or others,
allowing people with disability or their representatives to seek independent review of
behaviour support plans that incorporate restrictive practices, and
monitoring restrictive practices.
Under Tasmania’s Disability Services Act, a decision about whether to grant approval for
restrictive intervention must have regard to:





the best interests of the person with disability,
the consequences of carrying out or not carrying out the restrictive intervention,
any suitable alternative method,
the nature and degree of any significant risks, and
the effect on the safety, health and wellbeing of the person with disability. 28
In the Victorian system, restrictive interventions are regulated by legislation which:



establishes the Office of the Senior Practitioner whose role is to ensure the rights of people
with disability who are subject to restrictive interventions and compulsory treatment,29
introduces a regime to regulate the use of restrictive practices and approval processes for
restrictive practices,30
establishes a process for review of certain decisions by the Victorian Civil and
Administrative Tribunal, including the review of decisions relating to the use of restrictive
practices.31
Victoria’s Senior Practitioner also has responsibilities for:





developing standards and guidelines relating to restrictive practices,
providing advice, education and information about restrictive practices,
giving directions to service providers regarding behaviour support,
monitoring and evaluating the use of restrictive practices, and
conducting research into best practice.32
Issues for consideration
20. Should restrictive practices be regulated by law? If so, why?
21. Should provisions regulating restrictive practices go in:
o the new disability legislation, or
o some other law like the Guardianship Act 1987 (NSW)? Why?
22. How should legislation define ‘restrictive practices’?
23. What process should govern the approval of restrictive practices and what issues
should be considered in this process?
24. Under what circumstances should restrictive practices be allowed in ‘emergency
situations’? How should these situations be defined? Should there be any limits
on the use of restrictive practices in such situations?
28
Disability Services Act 2011 (Tas) s38(5), s43(2).
Disability Act 2006 (Vic) Part 3, Division 5.
30
Disability Act 2006 (Vic) Part 7.
31
Disability Act 2006 (Vic) s146.
32
Disability Act 2006 (Vic) s24(1).
29
25. Should the new disability legislation establish an office responsible for overseeing
the use of restrictive practices? If so, what functions and powers should the
office have? Why?
2.3.4 Service safeguards
Service level safeguards have historically been focussed on protecting people receiving specialist
disability services. A key issue is how these safeguards translate to a system where people with
an individualised budget are not restricted to purchasing services from disability service providers.
2.3.4.1 Regulating quality and safety
The National Quality Framework and associated National Standards for Disability Services (which
are currently in revised draft form) aim to ensure a consistent approach to improving the quality of
services for people with disability across Australia. The National Standards were developed after
extensive consultation and cover: Rights, Participation, Individual Outcomes, Feedback and
Complaints, Service Access and Service Management.
The NSW approach to quality reform has been informed by the sector and outcomes from
extensive consultation across NSW with people with disability, their families and carers and other
stakeholders. The reforms are built on the National Quality Framework and based on the updated
NSW Disability Services Standards (which align with the proposed National Standards for
Disability Services). In NSW, the Standards in action manual guides practical implementation of
the updated NSW Disability Service Standards.33
The NSW quality reforms are aligned with the Living Life My Way vision for the NSW disability
system in which the disability sector is diverse, sustainable and offers quality, person centred cost
effective supports. The reforms seek to strike a balance between ensuring that funded services
are complying with standards whilst not unduly increasing the administrative burden or reporting
requirements for service providers. The approach has a number of core features including:




focussing on achieving and measuring outcomes,
supporting continuous improvement and encouraging feedback from people receiving
services,
ensuring a consistent approach to quality monitoring through independent assessment, and
supporting a simplified process for service providers through the recognition of other
accreditation systems and supporting the role of service provider governance bodies such
as boards or management committees.
In NSW, all funded disability service providers have to comply with a new quality policy 34 which
outlines the quality requirements for funded service providers as set out in the current funding
agreement.35
In some States standards for disability services are incorporated in legislation. For example,
Queensland specifies that the Minister must make standards and broadly sets out what they must
detail and what indicators are used to measure whether service providers have met those
33
See Ageing, Disability and Home Care, Department of Family and Community Services NSW (2011) Standards in Action: Practice requirements
and guidelines for services funded under the Disability Services Act.
34
Ageing, Disability and Home Care, Department of Family and Community Services NSW (November 2012) Quality Policy for ADHC funded
services.
35
For further information see Ageing, Disability and Home Care, Department of Family and Community Services NSW funding agreement website
at http://www.adhc.nsw.gov.au/sp/funding_and_grants/funding_agreement
standards.36 Victoria embeds broad standards regarding service quality in the principles of its
legislation and the Minister must determine standards to be met by disability service providers,
which may include standards for support plans and complaint management.37
Issues for consideration
26. Should the new legislation embed the broad standards regarding service quality of
specialist disability services?
27. Should the new Act refer to agreed State and/or national standards for specialist
disability services?
28. What role, if any, should disability legislation play to minimise the risk of harm to
people with disability who choose mainstream providers or providers who are not
monitored or regulated?
2.3.4.2 Additional safeguards for vulnerable people
Additional safeguards may be needed for some disability supports and services provided to people
who are more vulnerable and at higher risk. For example, many people who live in supported
accommodation have more complex support needs and may be particularly vulnerable. A wide
range of accommodation support options are currently funded or delivered under the Act, including
24 hour support to people living in villages, clusters, apartments and group homes through to drop
in and in-home support packages. Some people with disability also live in large residential centres.
Large residential centres
Large residential centres, which provide dormitory style accommodation for more than 20
people were predominantly built in the late 19th and early to mid 20th centuries. The
centres have been criticised for, among other things, lack of privacy for residents, lack of
resident choice on meals, mealtimes and personal possessions, and limited opportunities
for individual and person centred planning.
Under Stronger Together 2 the NSW Government has made a commitment to close all large
residential centres and provide alternative accommodation for residents by June 2018.
In Victoria, legislation establishes specific rights for people with disability in supported
accommodation and sets obligations for those providing residential services. 38 For example:


Disability service providers must provide a residential statement to a person with disability
when they start living at a residential service. The residential statement must include the
type and cost of the service and other information such as a person’s right to make a
complaint.
The Act also protects the rights and privacy of people living in a residential service by
providing guidance about when a disability service provider can enter a person’s room.
Issues for consideration
36
Disability Services Act 2006 (Qld) s34.
Disability Act 2006 (Vic) s97.
38
Disability Act 2006 (Vic) Part 5, Division 1.
37
29. Should the new Act establish additional safeguards for people with disability who are
more vulnerable?
30. If specific safeguards are to be established what principles should inform them?
2.3.4.3 Workforce safeguards
Workforce screening can be considered a means of protecting people with disability as it assists in
determining the suitability of a person to provide disability support. In a person centred approach
there are likely to be a range of relationships between people with disability and support workers
including the possibility that some individuals may choose to employ their own staff and accept the
responsibility to manage all associated legal and administrative obligations.
Some States, such as Queensland, have included in their legislation the requirement for the
conduct of criminal record checks for persons providing some specialist disability services. 39 The
Australian Capital Territory has passed the Working with Vulnerable People (Background
Checking) Act 2011 which mandates background screening for certain categories of people
working with people with disability (among others).40
Issues for consideration
31. Should disability legislation require people providing specialist disability services to
undergo background screening such as criminal records checks?
32. If people are screened, should this be limited to people providing particular
specialist services? If so, which services? Why?
2.3.5 Community based safeguards
Community safeguards are often external to services and enable independent oversight and
review.
2.3.5.1 Official Community Visitors
The CS CRAM Act establishes the Official Community Visitor scheme. This scheme safeguards
the rights of people with disability who live in certain types of supported accommodation known as
‘visitable services’ which include:


accommodation services provided by ADHC or by a funded agency for clients on a full-time
basis, and
residential centres for people with disability.41
Official Community Visitors are members of the community who are appointed by the Minister for
Disability Services and the Minister for Community Services to visit most government and nongovernment accommodation services for children, young people and people with disability
throughout NSW. They also visit people living in licensed boarding houses. Priority is given to
visiting residents who are at greatest risk.
39
See Disability Services Act 2006 (Qld) Part 10, Division 1.
It is noted that Part 7 of the Commission for Children and Young People Act 1998 (NSW) prohibits certain persons from being involved in childrelated employment and sets out requirements for background checking administered by the Commission for Children and Young People and other
agencies.
41
See Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) s8.
40
The Ombudsman is responsible for overseeing and coordinating Official Community Visitors.
Official Community Visitors can enter certain accommodation services and access residents,
employees, and information. The functions of the Official Community Visitors include:





telling the Minister and Ombudsman about issues affecting the welfare of residents of
visitable services,
promoting the legal and human rights of residents, including the rights to privacy and to
complain,
considering the issues residents and staff raise about the welfare of people living in
visitable services,
giving residents information on the advocacy services available to help them with
grievances, and
facilitating early and speedy resolution of grievances by referring these to the right
organisations.42
Issues for consideration
33. Should people with disability who live in supported accommodation have additional
external oversight safeguards to protect their rights?
34. What are the most important elements of any scheme to give them additional
safeguards?
35. Should the Official Community Visitors scheme be transferred to the new
legislation? If so, how could the role of the Official Community Visitors be made
more effective?
36. Should the Official Community Visitors scheme apply just to ‘visitable services’ as
currently defined? If not, how should the scope of the scheme be expanded?
Why?
Requesting a review of administrative decisions made by governments and being able to make
complaints about disability service providers are important community safeguards. There are a
number of different bodies in NSW that conduct reviews of government decisions or investigate
complaints.43
2.3.5.2 Complaints management under the Community Services (Complaints, Reviews and
Monitoring) Act 1993 (NSW)
In NSW the management of complaints about disability services is covered under the CS CRAM
Act. A person may make a complaint to the NSW Ombudsman about the way an organisation
provides, fails to provide, withdraws, changes or administers a community and/or disability
service.44 A person making a complaint does not have to be the person receiving the service. 45
The NSW Ombudsman can investigate a complaint if it appears that significant issues have arisen
in relation to public safety, public interest, or whether there are questions about the appropriate
care and treatment of a person by a service provider.46 When carrying out functions under the CS
42
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) s8; Community Services (Complaints, Reviews and Monitoring)
Regulation 2004 (NSW) reg 4.
43
Some of these statutory bodies include the NSW Ombudsman, Administrative Decisions Tribunal, Anti‑Discrimination Board, Health Care
Complaints Commission, Guardianship Tribunal and Mental Health Review Tribunal.
44
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) s22(1).
45
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) s23.
46
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) s27.
CRAM Act, or when the NSW Ombudsman conducts an investigation into a complaint, the
following principles must be observed:






the paramount consideration in providing a service for a person must be the best interests
of the person,
a person who is eligible to receive, or receives, a community service is also to receive an
adequate explanation of the service, is to be heard in relation to the service and may
question decisions or actions that affect the person in relation to the service,
a service provider is to promote and respect the legal and human rights of a person who
receives a community service and must respect any need for privacy or confidentiality,
a service provider is, to the best of his or her ability, to provide such information about the
service as may enable an appropriate decision to be made by the person for whom the
service is, or is to be, provided,
a service provider is to enable a complaint about the service to be dealt with fairly,
informally and quickly and at a place convenient to the complainant, and
a complaint about the provision of a service is to be dealt with even if it is made by another
person on behalf of the person eligible to receive, or receiving, the service. 47
The CS CRAM Act has been in place since 1993, the same length of time as the Act. The
language of the CS CRAM Act does not reflect current thinking about the rights of people with
disability to complain about the services they receive or reflect a person centred system. For
example, the CS CRAM Act says that a ‘paramount consideration’ in providing a service is the
‘best interests’ of a person with disability. This suggests outdated views about decision making by
others on behalf of people with disability.
The review of the Act invites us to think about how accessible and robust internal complaints
management systems would look under the person centred model where services may be
delivered by a broader range of providers. Current thinking supports people with disability being
able to speak up about their concerns at a service level and to have them resolved in a timely and
informal manner. There may need to be an opportunity for independent review or action where this
does not work or is not appropriate (such as for serious allegations of abuse). This kind of system
is found in the Disability Act 2006 in Victoria.48 Currently in NSW under the CS CRAM Act the
function of encouraging resolving complaints at a local level is delegated to the NSW
Ombudsman, who may direct complaints back to service providers.
Issues for consideration
37. What should people with disability be able to make complaints about?
38. Does the CS CRAM Act adequately address concerns about services by people with
disability or their families, carers or advocates? If not, what changes are needed?
39. How should the complaints mechanism in the CS CRAM Act apply to the broader
range of service providers likely to operate under individualised funding
arrangements?
40. Are the principles that guide responding to complaints in the CS CRAM Act
appropriate?
47
48
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) s3(2).
Disability Act 2006 (Vic) Part 6, Division 5.
41. Should disability legislation rather than the CS CRAM Act regulate management of
complaints about disability services?
2.3.5.3 Review of decisions
What decisions can be reviewed?
Many laws that involve decisions about funding and accessing services and supports permit some
kinds of decisions to be reviewed.
Currently, under the Act, some limited decisions can be reviewed on their merits by the
Administrative Decisions Tribunal (ADT).49 This means the ADT can hear the matter afresh, take
into account new material, and reconsider the decision. The ADT may review decisions made
under the Act including to:



approve financial assistance if it is considered that the approval should not have been
given, because the financial assistance would not conform to objects, principles or
application of principles,
provide financial assistance to a service provider if it is considered that the terms and
conditions, on which the financial assistance is provided, do not comply with the terms and
conditions of funding that are set out in the Act, and
terminate future instalments of approved financial assistance if those instalments have
been terminated otherwise than in accordance with the procedures set out in the Act.
What decisions could be reviewed in a person centred system?
The review of the Act provides an opportunity to think about what kinds of decisions should be
able to be reviewed under a person centred system. The kinds of decisions that could be open to
review may include decisions about:




individual plans and the approval (or not) of individual plans,
eligibility for individual funding packages,
refusing to approve funding certain kinds of services under individual funding packages, or
decisions relating to mismanaging individual funds or failing to comply with accountability or
reporting requirements which may affect the right to continue to receive funding.
Issues for consideration
42. Are the current review provisions under the Act appropriate and effective? If not,
how should they be changed?
43. What review or appeal processes should be available under the future system of
individualised funding and what kinds of decisions should be able to be
reviewed?
49
Disability Services Act 1993 (NSW) s20
2.4 Community and participation
Australia should be a country where it is not unusual to see people with disability as
participants, organisers and leaders in all parts of civic life including cultural, religious,
recreational, political and sporting spheres.50
2.4.1 What is this section about?
People with disability should be able to participate in community life as they wish, as do other
people. In this section we are asking you to think about the role disability legislation should play in
ensuring that people with disability are included, respected and can fully participate in the
community.
Two of the principles of the UN Convention provide some useful guidance for this section:


Full and effective participation and inclusion in society,51 and
Accessibility.52
Article 8 of the UN Convention is also a useful reference point as it talks about the need to take
measures to raise awareness throughout society of people with disability, and to foster respect for
their rights and dignity and to combat stereotypes, prejudices and harmful practices.
In this section we look mainly at what is currently being done in NSW to promote the participation
of people with disability through policies, and under the Act. We also look at education and
promoting awareness, the role of the Disability Council of NSW, and specific needs of particular
groups.
2.4.2 Background
Promoting the participation of people with disability in all aspects of the community is an important
objective for the NSW and other Australian governments. This is evident in many of the
agreements and strategies listed at the 2.3.1 of this paper including, notably:





the goals and targets of NSW 2021,
implementing the Stronger Together 2 person centred approach – in particular establishing
Ability Links NSW (see boxed text),
the National Disability Strategy, particularly policy area one – inclusive and accessible
communities – and policy area four – personal and community support,53
the overall objective of the National Disability Agreement,54 and
the objective for the NDIS to “… maximise the social and economic participation of people
with a disability, [and] create community awareness of the issues that affect people with a
disability …”.55
Fostering inclusion – Ability Links NSW
Council of Australian Governments (2011) ‘2010–2020 National Disability Strategy’ p 18 at
http://www.fahcsia.gov.au/sites/default/files/documents/05_2012/national_disability_strategy_2010_2020.pdf.
51
Convention on the Rights of Persons with Disabilities Article 3(c).
52
Convention on the Rights of Persons with Disabilities Article 3(f), Article 9.
53
Council of Australian Governments (2011) ‘2010–2020 National Disability Strategy’ at
http://www.fahcsia.gov.au/sites/default/files/documents/05_2012/national_disability_strategy_2010_2020.pdf
54
Council of Australian Governments (2012) ‘National Disability Agreement’ at
http://www.federalfinancialrelations.gov.au/content/national_agreements/disability/ND_Agreement_20120725.pdf
55
Australian Productivity Commission Disability Care and Support Report No 54 (Canberra: 31 July 2011), Volume 1, 63.
50
Ability Links NSW is one of the first steps in moving to a person-centred disability system.
Locally-based Ability Links NSW Coordinators will work with people with disability, their
families and carers to plan their future, build their capacities and skills, and develop
opportunities for them to participate in the activities offered to the general community by
local services and community organisations.
The primary objective of Ability Links NSW is to support people with disability, their
families and careers so they are valued and equal members of the community. Ability Links
NSW aims to provide support at key points across a person’s lifespan to promote their
rights to live ordinary lives in all areas of their life – community, public, private and social.
Ability Links NSW Coordinators will provide a locally-based first point of contact for the
NSW disability services system. Ability Links NSW Coordinators will have three main roles
to:
1. work with people with disability, their families and carers to plan for their future,
2. work with individuals and their families to help them become more confident, supporting
them to achieve their goals by building new networks and accessing support and services in
their communities, and
3. work alongside communities and mainstream services, supporting them to become more
welcoming and inclusive.
The objectives of the current Act refer to people with disability being included, and participating, in
the community. These objectives include ensuring provision of specialist disability and other
services to:


enable people with disability achieve their maximum potential as members of the
community,56 and
further the integration of people with disability in the community,57 including enabling them
to have increased independence and employment opportunities.58
To help achieve these objectives, the Act requires that public authorities have Disability Action
Plans.
2.4.3 Disability Action Plans
Under section 9 of the Act, NSW Government departments and agencies must ‘prepare, and make
provisions for the implementation of, a plan to encourage the provision of services by that authority
in a manner that furthers the principles and application of principles’ of the Act.59 ADHC,
56
Disability Services Act 1993 (NSW) s3(a).
Disability Services Act 1993 (NSW) s3(b)(i). Note that the NSW Law Reform Commission reviewed the Act in 1999 to look at whether the policy
objectives of the Act were still valid and whether the terms of the Act are appropriate for meeting those objectives. After consultation, the
Commission recommended that terms that may imply that people with a disability should adopt some ‘normal’ majority lifestyle in order to become
part of the community should be removed and replaced by terms which emphasise choice. The Commission recommended, therefore, that the term
‘integration’ should be replaced by ‘inclusion’. See NSW Law Reform Commission (1999) Report 91 – Review of the Disability Services Act 1993
(NSW)at 2.14–2.16.
58
Disability Services Act 1993 (NSW) s3(b)(ii).
59
Disability Services Act 1993 (NSW) s9(1). Ageing, Disability and Home Care, Department of Family and Community Services NSW has published
Guidelines for disability action planning by NSW Government agencies. This guide aims to provide a flexible framework and suggested good
practice for NSW Government agencies to use in developing and implementing effective Disability Action Plans.
57
Department of Family and Community Services NSW, provides oversight and leadership for
disability action planning across NSW Government departments.60
Disability Action Plans aim to ensure that services available to the general public are also
accessible by people with disability. The intended effect is to extend the Act’s Principles and
Applications of Principles to all services of NSW Government bodies, whether they are general
services or specialist disability services. This section of the Act has, however, been criticised for
failing to make provision for the implementation of Disability Action Plans, as no consequences
flow from failure to implement them.61
Besides the process of disability action planning, the Act does not currently establish a specific
system for ensuring a comprehensive and coordinated whole of government approach to
implementing strategies to address the needs of people with disability and support their inclusion
in the community.62 By way of comparison:


Section 37 of the Disability Services Act 2006 (Vic) requires a State Disability Plan to be
prepared every four years, in addition to Disability Action Plans, and
In New Zealand, the responsible Minister must determine a strategy for disability support
services, the NZ Disability Strategy, to provide the framework for the Government’s overall
direction of the disability sector.63
Issues for consideration
44. How can disability legislation best ensure that all government agencies make
services accessible to people with disability?
45. Are Disability Action Plans an effective means of ensuring that government services
are accessible? Why?
46. Should the legislation specify:
o how disability action plans should be developed, and
o what they should cover?
 If so, what should be included?
47. Who should monitor compliance with Disability Action Plans? Should plans be
enforced? If so, how?
48. Which NSW Government departments, divisions, agencies or other entities should
be required to develop Disability Action Plans? Why?
2.4.4 Awareness-raising
Article 8 of the UN Convention notes the importance of taking measures to raise the awareness,
throughout society, regarding people with disability and their capabilities and contributions. In
NSW, a variety of methods, such as the ‘Don’t DIS my ABILITY’ campaign, are used to raise
community awareness of the needs of people with disability as well as their right and ability to
make choices about career aspirations, relationships, social activities and care and support needs.
60
See Ageing, Disability and Home Care (September 2008) Guidelines for disability action planning by NSW Government agencies.
NSW Law Reform Commission (1999) Report 91 – Review of the Disability Services Act 1993 (NSW) at 4.15–4.37, 4.20.
It is noted that the NSW Law Reform Commission did recommend an expansion in the application of disability action planning to include local
government. See NSW Law Reform Commission (1999) Report 91 – Review of the Disability Services Act 1993 (NSW) at 4.15–4.37, 4.20.
63
New Zealand Public Health and Disability Act 2000 (NZ) s8(2).
61
62
Don’t DIS my ABILITY
The International Day of People with a Disability (IDPwD) is on 3 December each year. It is
designated by the United Nations to celebrate and recognise the achievements,
contributions and abilities of people with disability. In NSW, IDPwD is commemorated each
year with the Don’t DIS my ABILITY campaign, which celebrates the diversity and ability of
people with disability.
Don’t DIS my ABILITY continues to support the aims of Stronger Together by raising
community awareness of the needs of people with disability and their ability to make life
choices. It is about promoting positive perceptions and building an environment that
encourages active participation in careers and leisure pursuits as well as social activities.
Each year the United Nations announces a theme for IDPwD. The 2012 theme was
‘Removing barriers to create an inclusive and accessible society for all’. This provided an
opportunity to consider the exclusion of people with disabilities by focusing on promoting
accessibility, as well as on removing all barriers in society. Barriers can relate to the
physical environment and communication or stem from policy or legislation, discrimination
and social attitudes.
For further information see www.dontdismyability.com.au
Issues for consideration
49. What role should government play in:
o promoting respect for people with disability? and
o ensuring their participation and inclusion?
50. What role, if any, should disability legislation play in awareness raising in NSW?
2.4.4.1 Disability Council of NSW
The Disability Council of NSW has an important role in awareness raising and bringing issues
relevant to people with disability to the attention of the NSW Government. Established under the
CW Act, the Disability Council embodies the NSW Government’s commitment to consult on and
consider issues impacting on people with disability. Its functions include:






64
monitoring the implementation of Government policy in relation to people with disability and
their families,
advising the Government on the effect and relevance of services provided to people with
disability and their families,
advising the Government on priorities to be accorded to services provided to people with
disability and their families,
advising the Government on the role of voluntary organisations in relation to services
provided to people with disability and their families,
promoting the integration of people with disability into the community, and
promoting community awareness of matters concerning the welfare of people with disability
and their families.64
See Community Welfare Act 1987 (NSW) s16.
The review offers the opportunity to refresh the language of the functions of the Council (which
reflects the length of time since the Act was made) and bring those functions more clearly into line
with the NSW Government’s policy commitments. It also offers the opportunity to consider whether
the provisions relating to the Disability Council should be moved from the Community Welfare Act
1987 (NSW) to the new legislation.
Issues for consideration
51. How can we best engage people with disability in decision making about policy and
legislation in NSW? How can legislation support this?
52. Is the Disability Council of NSW able to undertake its functions effectively under its
current legislation? If not, why not?
53. Should the provisions relating to the Disability Council be transferred from the
Community Welfare Act 1987 (NSW) to the new legislation? If so, what functions
should it have? What advantages and disadvantages might be associated with
this change?
2.4.5 Recognising the needs of different groups
By any measure, Aboriginal and Torres Strait Islander people with disability are among the
most disadvantaged members of the Australian community. They often face multiple
barriers to meaningful participation in their own communities as well as the wider
community, facing double disadvantage because of discrimination on the basis of their
Aboriginality as well as their disability. 65
Contemporary approaches to supporting people with disability recognise that not all people with
disability are alike. Groups of people with disability can have particular needs based on their
personal circumstances including their sex, age, sexuality, ethnic or cultural background. For
example:




Aboriginal and Torres Strait Islander people with disability may prefer to have access to
services where staff are sensitive to their culture and Aboriginal people are engaged in all
aspects of service development, planning and delivery,
People of non-English speaking backgrounds may face extra hurdles such as language and
cultural barriers and, for new arrived migrants particularly, lack of family and friends for
support,
Women and men with disability often face different challenges by reason of their sex, for
example, women and men with disability are likely to experience violence in different ways
and so need different supports,
Ways of supporting children with disability must ensure that the best interests of the child
are considered and that children with disability have the right to express their views freely
on all matters affecting them, and to have their views given due weight in accordance with
their age and maturity.
Issues for consideration
54. Should disability legislation recognise the particular needs of some groups of people
with disability? If so, which groups should be recognised and how?
Council of Australian Governments (2011) ‘2010–2020 National Disability Strategy’ at
http://www.fahcsia.gov.au/sites/default/files/documents/05_2012/national_disability_strategy_2010_2020.pdf
65
2.4.6 Respect for the home and family
It is well recognised that families, partners, carers and friends play a crucial role in supporting and
advocating for people with disability. It is also important to ensure, as far as possible, that as
children with disability grow up their family relationships are maintained and supported.
A key commitment of Stronger Together 2 has been the development of a comprehensive lifespan
approach to disability support. The intention is to have the right interventions at each stage of a
person’s life. The approach gives people with disability, and their families, more certainty about
what to expect from disability support over their lives.
The Stronger Together 2 lifespan approach focuses on a number of significant life stages and
transition points. The approach emphasises understanding the person’s life stage and building on
their strengths so as to enable them to participate in and contribute to their family and
communities. Within each of the significant life stages respect for the home and family is
considered important. For example, the focus in pre-school years is on early detection and
outreach to families and assisting mainstream services to provide therapeutic and inclusive
environments for children.
The current Act does not provide specifically for families and carers of people with disability. It is
noted, however, that the Carers (Recognition) Act 2010 (NSW) provides for a Carers Charter to
recognise the role and contribution of carers to our community and to the people they care for, and
to increase the awareness of the valuable contribution that carers make to our community.66
Issues for consideration
55. What role, if any, can disability legislation play in ensuring that the home and family
of people with disability are respected and recognised?
56. Should the principle of respecting children and their family relationships as they
grow up be reflected in legislation, and if so how?
57. How could new legislation allow us to support carers in line with the Carers
(Recognition) Act 2010 (NSW)?
2.4.7 Participation in cultural life, recreation, leisure and sport
Government can play an important role in encouraging participation in culture, sport and
recreation. The inclusion of people with disability in these activities has the power to break down
discrimination and build stronger, healthier, happier and safer communities. It can also act as a
springboard for greater social participation in other areas, including employment. In recent years, a
number of initiatives have been implemented in NSW to improve the participation of people with
disability in culture, sport and recreation.
NSW initiatives – participation in cultural life, recreation, leisure and sport
Major capital works programs have improved access to cultural institutions including the
Sydney Opera House, the Art Gallery of NSW, the Museum of Contemporary Art, the
Australia Museum and the Powerhouse Museum.
The You’re in the Game Framework (NSW Sport & Recreation) guides the approach and
performance of all organisations offering sport and physical activity for people with disability in
66
Carers (Recognition) Act 2010 (NSW) s3.
NSW. Through leadership and strategic direction to the industry it aims to provide more
opportunities for people with disability.
Issues for consideration
58. What role, if any, could disability legislation play in ensuring sufficient opportunity
for people with disability to participate in cultural life in NSW?
3
Appendices
Appendix A: Discussion paper questions
1.
What do you think are the main objectives that the new disability legislation should aim to
achieve?
2.
Do you think the Objects in the current Act are sufficient or reflect current ways of thinking
about people with disability in our community? If not, how do you think they should be changed?
3.
Do the objectives in any other pieces of legislation that you may be aware of provide
guidance for what should be in the NSW legislation? If so, which ones?
4.
Do you think there should be a purpose section as well as an objects section? If so, what
do you think this should say?
5.
What do you think are the key roles and functions for Ageing, Disability and Home Care,
Department of Family and Community Services NSW, as the lead public sector agency in the
NSW disability sector? Do the Objects of the current Act reflect these functions? If not, how should
they be changed?
6.
What principles should be reflected in disability legislation? Why?
7.
How could the Act’s principles be improved to ensure that people with disability are placed
at the centre of planning, decisions and delivery of support and services?
8.
Are the Act’s principles and applications effective in ensuring the human rights of people
with disability are protected?
How should ‘disability’ be defined for the purposes of the NSW disability legislation? Why?
9.
10.
Are there any other terms that you think should be carefully defined within the legislation? If
so, please advise which ones and why?
11.
What should the legislation cover in a person centred system?
12.
Should the legislation refer to or regulate individual planning?
13.
Should the legislation include principles to guide the development of individual plans? If so,
what should these be?
14.
Should the legislation contain the power to make standards or guidelines for individual
plans that:

protect the rights of people with disability? and

regulate access to funding?
15.
Should the legislation include a requirement about the broad purpose for which funds will
be provided under individualised funding? If, so what should this be?
16.
Should the legislation contain a power to specify the type of services and support that can
be funded?
17.
Should the legislation describe the types of funds management arrangements that can be
used and under what circumstances (for example, fund holding or support coordination?
18.
Should the legislation require that certain types of funding will only be provided where an
individual plan is in place?
19.
Should the legislation provide government with the power to limit the arrangements by
which some people can manage their own funds if the risks outweigh the benefits?
20.
Should restrictive practices be regulated by law? If so, why?
21.
Should provisions regulating restrictive practices go in:
22.

the new disability legislation, or

some other law like the Guardianship Act 1987 (NSW)? Why?
How should legislation define ‘restrictive practices’?
23.
What process should govern the approval of restrictive practices and what issues should be
considered in this process?
24.
Under what circumstances should restrictive practices be allowed in ‘emergency
situations’? How should these situations be defined? Should there be any limits on the use of
restrictive practices in such situations?
25.
Should the new disability legislation establish an office responsible for overseeing the use
of restrictive practices? If so, what functions and powers should the office have? Why?
26.
Should the new legislation embed the broad standards regarding service quality of
specialist disability services?
27.
Should the new Act refer to agreed State and/or national standards for specialist disability
services?
28.
What role, if any, should disability legislation play to minimise the risk of harm to people
with disability who choose mainstream providers or providers who are not monitored or regulated?
29.
Should the new Act establish additional safeguards for people with disability who are more
vulnerable?
30.
If specific safeguards are to be established what principles should inform them?
31.
Should disability legislation require people providing specialist disability services to undergo
background screening such as criminal records checks?
32.
If people are screened, should this be limited to people providing particular specialist
services? If so, which services? Why?
33.
Should people with disability who live in supported accommodation have additional external
oversight safeguards to protect their rights?
34.
What are the most important elements of any scheme to give them additional safeguards?
35.
Should the Official Community Visitors scheme be transferred to the new legislation? If so,
how could the role of the Official Community Visitors be made more effective?
36.
Should the Official Community Visitors scheme apply just to ‘visitable services’ as currently
defined? If not, how should the scope of the scheme be expanded? Why?
37.
What should people with disability be able to make complaints about?
38.
Does the CS CRAM Act adequately address concerns about services by people with
disability or their families, carers or advocates? If not, what changes are needed?
39.
How should the complaints mechanism in the CS CRAM Act apply to the broader range of
service providers likely to operate under individualised funding arrangements?
40.
Are the principles that guide responding to complaints in the CS CRAM Act appropriate?
41.
Should disability legislation rather than the CS CRAM Act regulate management of
complaints about disability services?
42.
Are the current review provisions under the Act appropriate and effective? If not, how
should they be changed?
43.
What review or appeal processes should be available under the future system of
individualised funding and what kinds of decisions should be able to be reviewed?
44.
How can disability legislation best ensure that all government agencies make services
accessible to people with disability?
45.
Are Disability Action Plans an effective means of ensuring that government services are
accessible? Why?
46.
Should the legislation specify:

how disability action plans should be developed? and

what they should cover?
If so, what should be included?
47.
Who should monitor compliance with Disability Action Plans? Should plans be enforced? If
so, how?
48.
Which NSW Government departments, divisions, agencies or other entities should be
required to develop disability action plans? Why?
49.
50.
What role should government play in:

promoting respect for people with disability? and

ensuring their participation and inclusion?
What role, if any, should disability legislation play in awareness raising in NSW?
51.
How can we best engage people with disability in decision making about policy and
legislation in NSW? How can legislation support this?
52.
Is the Disability Council of NSW able to undertake its functions effectively under its current
legislation? If not, why not?
53.
Should the provisions relating to the Disability Council be transferred from the Community
Welfare Act 1987 (NSW) to the new legislation? If so, what functions should it have? What
advantages and disadvantages might be associated with this change?
54.
Should disability legislation recognise the particular needs of some groups of people with
disability? If so, which groups should be recognised and how?
55.
What role, if any, can disability legislation play in ensuring that the home and family of
people with disability are respected and recognised?
56.
Should the principle of respecting children and their family relationships as they grow up be
reflected in legislation, and if so how?
57.
How could new legislation allow us to support carers in line with the Carers (Recognition)
Act 2010 (NSW)?
58.
What role, if any, could disability legislation play in ensuring sufficient opportunity for people
with disability to participate in cultural life in NSW?
Appendix B: The NSW and National Context
The National Disability Agreement (NDA)
The National Disability Agreement (NDA) sets the framework for reform of government support to
services for people with disability. The NDA commits the Australian, State and Territory
governments to helping people with disability to participate in social and economic life, enjoy
choice and live as independently as possible. It also commits these two tiers of government to
supporting the families and carers of people with disability. One of the key responsibilities of State
and Territory governments is to ensure their legislation aligns with national policy and reform
objectives.
Further information:
For further information on the National Disability Agreement visit the Department of Families,
Housing, Community Services and Indigenous Affairs website at www.fahcsia.gov.au
The National Disability Strategy 2010–2020 (NDS)
The Australian, State and Territory governments developed the National Disability Strategy (NDS)
as a 10-year strategy for improving the lives of people with disability. It aims to ensure that policies
and programs affecting people with disability and their families and carers are in line with the UN
Convention. The NDS, built around the shared vision of an inclusive Australian society, ‘looks
beyond the specialist disability support system delivered by the Commonwealth, States and
Territories under the National Disability Agreement’.
To drive implementation of the NDS in NSW, contribute to the national approach, and complement
current NSW plans, a NSW NDS Implementation Plan has been developed.
Further information:
For further information on the National Disability Strategy visit the Department of Families,
Housing, Community Services and Indigenous Affairs website at www.fahcsia.gov.au
For further information on the National Disability Strategy NSW Implementation Plan 2012 – 2014
visit the Ageing, Disability and Home Care, Department of Family and Community Services NSW
website at
http://www.adhc.nsw.gov.au/about_us/strategies/national_disability_strategy/nds_nsw_implement
ation_plan
National Standards for Disability Services, 2011
The National Standards for Disability Services (currently in revised draft form) aim to ensure a
nationally consistent approach to improving the quality of services and the lives of people with
disability. Developed after extensive consultation, the standards cover: Rights, Participation,
Individual Outcomes, Feedback and Complaints, Service Access and Service Management.
In NSW the Standards in action manual guides practical implementation of the updated NSW
Disability Services Standards and ensures services meet the requirements of the National
Disability Agreement.
Further information:
For further information on the National Standards for Disability Services visit the Victorian
Department of Human Services website at www.dhs.vic.gov.au
For further information on the NSW Disability Service Standards and NSW Standards in Action
manual visit the Ageing, Disability and Home Care, Department of Family and Community
Services NSW website at http://www.adhc.nsw.gov.au/sp/quality/standards_in_action
Stronger Together 2, 2011–16
Stronger Together 2 is the second phase of the NSW Government’s 2006–2016 plan to improve
support for people with disability, their families and carers. Central to the plan is a $2 billion
funding increase for the creation of an additional 47,200 service places. The key commitments are
implementing person-centred approaches, providing appropriate services to support people at
different stages of their lives, and closing large residential centres. Under Stronger Together 2, the
NSW Government will ensure that all policies associated with the plan comply with the UN
Convention.
Further information:
For further information on Stronger Together 2 visit the Ageing, Disability and Home Care,
Department of Family and Community Services website at
http://www.adhc.nsw.gov.au/about_us/strategies/stronger_together
NSW 2021
NSW 2021: A Plan to Make NSW Number One (NSW 2021) is the 10 year strategic plan of the
NSW Government released in September 2011. One of the goals of NSW 2021 aims to increase
opportunities for people with disability by providing supports that meet their individual needs and
realise their potential. The targets for this goal are to increase the percentage of disability service
users who are using individualised funding arrangements, increase the participation of people with
disability in employment or further education, and increase the proportion of people (aged five and
over) with profound and severe disability involved in out-of-home activities.
Further information:
For further information on NSW 2021 visit the website at www.2021.nsw.gov.au
National Disability Insurance Scheme (NDIS)
On 6 December 2012 the NSW and Australian Governments signed an historic agreement to
establish the National Disability Insurance Scheme (NDIS) in NSW. The agreement ensures that
all people with disability across NSW have access to a scheme, based on insurance principles,
that guarantees lifetime coverage for the cost of reasonable and necessary care and support. The
scheme follows recommendations made from the 2011 Productivity Commission enquiry into
disability supports in Australia.
The NSW launch of the NDIS will be in the Hunter region. From 2013–14, eligible people with
disability who live in the local government areas of Newcastle, Lake Macquarie and Maitland will
be supported to meet their reasonable and necessary care and support needs through the NDIS.
The full NDIS will build on the experience of the first stage launch site.
The NSW Government is committed to ensuring that the key features of the NDIS, wherever
possible, are aligned with Stronger Together 2.
Further information:
For further information on the NDIS visit the website at www.ndis.gov.au
Appendix C: Disability Services Act 1993 (NSW) Principles and
Application of Principles67
Principles
Persons with disabilities have the same basic human rights as other members of Australian
society. They also have the rights needed to ensure that their specific needs are met. Their rights,
which apply irrespective of the nature, origin, type or degree of disability, include the following:
(a) persons with disabilities are individuals who have the inherent right to respect for
their human worth and dignity,
(b) persons with disabilities have the right to live in and be part of the community,
(c) persons with disabilities have the right to realise their individual capacities for
physical, social, emotional and intellectual development,
(d) persons with disabilities have the same rights as other members of Australian
society to services which will support their attaining a reasonable quality of life,
(e) persons with disabilities have the right to choose their own lifestyle and to have
access to information, provided in a manner appropriate to their disability and
cultural background, necessary to allow informed choice,
(f) persons with disabilities have the same right as other members of Australian society
to participate in the decisions which affect their lives,
(g) persons with disabilities receiving services have the same right as other members of
Australian society to receive those services in a manner which results in the least
restriction of their rights and opportunities,
(h) persons with disabilities have the right to pursue any grievance in relation to services
without fear of the services being discontinued or recrimination from service
providers,
(i) persons with disabilities have the right to protection from neglect, abuse
and exploitation.
Applications of principles
Services and programs of services must apply the principles set out [above] In particular, they
must be designed and administered so as to achieve the following:
(a) to have as their focus the achievement of positive outcomes for persons with
disabilities, such as increased independence, employment opportunities and
integration into the community,
(b) to contribute to ensuring that the conditions of the everyday life of persons with
disabilities are the same as, or as close as possible to, norms and patterns which
are valued in the general community,
(c) to form part of local co-ordinated service systems and other services generally
available to members of the community, wherever possible,
(d) to meet the individual needs and goals of the persons with disabilities receiving
services,
(e) to meet the needs of persons with disabilities who experience an additional
disadvantage as a result of their gender, ethnic origin or Aboriginality,
67
Disability Services Act 1993 (NSW) Schedule 1
(f) to promote recognition of the competence of, and enhance the image of, persons
with disabilities,
(g) to promote the participation of persons with disabilities in the life of the local
community through maximum physical and social integration in that community,
(h) to ensure that no single organisation providing services exercises control over all or
most aspects of the life of a person with disabilities,
(i) to ensure that organisations providing services (whether specifically to persons with
disabilities or generally to members of the community) are accountable to
persons with disabilities who use them, the advocates of those persons, the State
and the community generally for the provision of information from which the
quality of those services can be judged,
(j) to provide opportunities for persons with disabilities to reach goals and enjoy
lifestyles which are valued by the community generally and are appropriate to
their chronological age,
(k) to ensure that persons with disabilities participate in the decisions that affect their
lives,
(l) to ensure that persons with disabilities have access to advocacy support where
necessary to ensure adequate participation in decision-making about the services
they receive,
(m)to recognise the importance of preserving the family relationships and the cultural
and linguistic environments of persons with disabilities,
(n) to ensure that appropriate avenues exist for persons with disabilities to raise and
have resolved any grievances about services, and to ensure that a person raising
any such grievance does not suffer any reprisal,
(o) to provide persons with disabilities with, and encourage them to make use of,
avenues for participating in the planning and operation of services and programs
which they receive and to provide opportunities for consultation in relation to the
development of major policy and program changes,
(p) to respect the rights of persons with disabilities to privacy and confidentiality.
Appendix D: Examples of principles used in some other Australian
disability legislation
Principles of the Disability Act 2006 (Vic)68
(1) Persons with a disability have the same rights and responsibilities as other members of the
community and should be empowered to exercise those rights and responsibilities.
(2) Persons with a disability have the same right as other members of the community to:
(a) respect for their human worth and dignity as individuals;
(b) live free from abuse, neglect or exploitation;
(c) realise their individual capacity for physical, social, emotional and intellectual
development;
(d) exercise control over their own lives;
(e) participate actively in the decisions that affect their lives and have information and be
supported where necessary, to enable this to occur;
(f) access information and communicate in a manner appropriate to their
communication and cultural needs;
(g) services which support their quality of life.
(3) Disability services should:
(a) advance the inclusion and participation in the community of persons with a disability
with the aim of achieving their individual aspirations;
(b) be flexible and responsive to the individual needs of persons with a disability;
(c) maximise the choice and independence of persons with a disability;
(d) be designed and provided in a manner that recognises different models of practice
may be required to assist people with different types of disability and at different
stages in their lives to realise their physical, social, emotional and intellectual
capacities;
(e) enable persons with a disability to access services as part of their local community
and foster collaboration, coordination and integration with other local services;
(f) as far as possible be provided in a manner so that a person with a disability need not
move out of his or her local community to access the disability services required;
(g) be of high quality and provided by appropriately skilled and experienced staff who
have opportunities for on-going learning and development;
(h) consider and respect the role of families and other persons who are significant in the
life of the person with a disability;
(i) acknowledge the important role families have in supporting persons with a disability;
(j) acknowledge the important role families have in assisting their family member to
realise their individual physical, social, emotional and intellectual capacities;
(k) where possible strengthen and build capacity of families who are supporting persons
with a disability;
(l) have regard for the needs of children with a disability and preserve and promote
relationships between the child, their family and other persons who are significant
in the life of the child with a disability;
(m)be provided in a manner that respects the privacy and dignity of persons accessing
the disability services;
68
Disability Act 2006 (Vic) s5.
(n) be provided in a way which reasonably balances safety with the right of persons with
a disability to choose to participate in activities involving a degree of risk;
(o) have regard for any potential increased disadvantage which may be experienced by
persons with a disability as a result of their gender, language, cultural or
indigenous background or location;
(p) be designed and administered in a manner so as to ensure that persons with a
disability have access to advocacy support where necessary to enable adequate
decision making about the services they receive;
(q) be designed and provided in a manner which continues to reflect the role of the
Secretary in providing and funding planning for persons with a disability;
(r) be accountable for the quality of those services and for the extent to which the rights
of persons with a disability are promoted and protected in the provision of those
services.
(4) If a restriction on the rights or opportunities of a person with a disability is necessary, the
option chosen should be the option which is the least restrictive of the person as is
possible in the circumstances.
(5) It is the intention of Parliament that the principles specified in this section should wherever
possible be given effect to in the administration of this Act and the provision of disability
services.
Principles of the Disability Services Act 2011 (Tas)69
(1)
In this section – relevant activities means:
(a) the performance or exercise of a function or power under this Act by the Minister, the
Secretary, the Senior Practitioner, the Guardianship and Administration Board, a
delegate of, or a person authorised by, such a person, or an authorised officer; or
(b) the formulation of designated standards to be submitted to the Governor for the
Governor to make as regulations; or
(c) the design, administration and provision of specialist disability services by a funded
disability services provider; or
(d) the preparation and approval of individual plans by disability services providers or
the preparation of such plans by a person nominated by a person with disability;
or
(e) the carrying out of research or development activities by funded disability research
providers.
(2)
The following principles are to be applied in respect of relevant activities:
(a)
the needs and best interests of persons with disability are to be promoted;
(b)
so far as is practicable, and having regard to the intellectual capacity of the person
with disability, decisions or actions that may directly affect a person with disability:
(i)
should only be taken after the person has been consulted; and
(ii)
should take into account the wishes of the person, to the extent that they are
consistent with the needs and best interests of the person and the safety of the person and others;
and
69
Disability Services Act 2011 (Tas) s5.
(iii)
should only result in the restriction of the freedom of decision and action of the
person, if at all, to the smallest extent that is practicable in the circumstances;
(c)
the inherent dignity of persons with disability and their individual autonomy, including
the freedom to make their own choices and their right to independence, is to be respected;
(d)
persons with disability are not to be discriminated against;
(e)
persons with disability are to be given the opportunity for full and effective
participation and inclusion in society;
(f)
there is to be respect for persons being different, and acceptance of persons with
disability, as part of human diversity and humanity;
(g)
persons with disability are to be given opportunities that are equal, or equivalent, to
the opportunities available to persons without disability;
(h)
specialist disability services are to be as physically and technologically accessible as
possible to persons with disability;
(i)
equality between men and women is to be promoted;
(j)
the fact that the capacities of children with disability may evolve as they
mature, and the right of children with disability to preserve their identities as equal citizens, are to
be respected.
Principles of the Disability Services Act 1993 (WA)70
1. People with disabilities have the inherent right to respect for their human worth and dignity.
2. People with disabilities, whatever the origin, nature, type or degree of disability, have the
same basic human rights as other members of society and should be enabled to
exercise those basic human rights.
3. People with disabilities have the same rights as other members of society to realise their
individual capacities for physical, social, emotional, intellectual and spiritual
development.
4. People with disabilities have the same right as other members of society to services which
will support their attaining a reasonable quality of life in a way that also recognises the
role and needs of their families and carers.
5. People with disabilities have the same right as other members of society to participate in,
direct and implement the decisions which affect their lives.
6. People with disabilities have the same right as other members of society to receive services
in a manner that results in the least restriction of their rights and opportunities.
7. People with disabilities have the same right as other members of society to pursue any
grievance concerning services.
8. People with disabilities have the right to access the type of services and supports that they
believe are most appropriate to meet their needs.
9. People with disabilities who reside in rural and regional areas have a right, as far as is
reasonable to expect, to have access to similar services provided to people with
disabilities who reside in the metropolitan area.
70
Disability Services Act 1993 (WA) Schedule 1.
10. People with disabilities have a right to an environment free from neglect, abuse, intimidation
and exploitation.
Appendix E: Definitions of ‘disability’ used in some other Australian
disability legislation
Disability Act 2006 (Vic)71
disability, in relation to a person means:
(a)
a sensory, physical or neurological impairment or acquired brain injury or any
combination thereof, which:
(i)
is, or is likely to be, permanent; and
(ii)
causes a substantially reduced capacity in at least one of the areas of selfcare, self-management, mobility or communication; and
(iii)
requires significant ongoing or long term episodic support; and
(iv)
is not related to ageing; or
(b)
an intellectual disability; or
(c)
a developmental delay.
Disability Services Act 2011 (Tas)72
disability, in relation to a person, means a disability of the person which:
(a)
is attributable to a cognitive, intellectual, psychiatric, sensory or physical impairment
or a combination of those impairments; and
(b)
is permanent or likely to be permanent; and
(c) results in:
(i)
a substantial restriction in the capacity of the person to carry on a profession,
business or occupation, or to participate in social or cultural life; and
(ii)
(d)
the need for continuing significant support services; and
may or may not be of a chronic episodic nature.
Disability Services Act 1993 (WA)73
disability means a disability:
(a)
which is attributable to an intellectual, psychiatric, cognitive, neurological, sensory, or
physical impairment or a combination of those impairments;
71
(b)
which is permanent or likely to be permanent;
(c)
which may or may not be of a chronic or episodic nature; and
(d)
which results in:
Disability Act 2006 (Vic) s3.
Disability Services Act 2011 (Tas) s4.
73
Disability Services Act 1993 (WA) s3.
72
(i)
a substantially reduced capacity of the person for communication, social
interaction, learning or mobility; and
(ii)
a need for continuing support services.
Appendix F: Legislative planning principles used in some other
Australian disability legislation
Disability Act 2006 (Vic)
Guiding principles for planning74
In the Victorian Act planning should be undertaken to the extent to which it is reasonably
practicable in accordance with the following principles:











be individualised,
be directed by the person with a disability,
where relevant, consider and respect the role of family and other persons who are
significant in the life of the person with a disability,
where possible, strengthen and build capacity within families to support children with a
disability,
consider the availability to the person with a disability of informal support and other support
services generally available to any person in the community,
support communities to respond to the individual goals and needs of persons with a
disability,
be underpinned by the right of the person with a disability to exercise control over their own
life,
advance the inclusion and participation in the community of the person with a disability with
the aim of achieving their individual aspirations,
maximise the choice and independence of the person with a disability,
facilitate tailored and flexible responses to the individual goals and needs of the person with
a disability, and
provide the context for the provision of disability services to the person with a disability and
where appropriate coordinate the delivery of disability services where there is more than
one disability service provider.
Disability Services Act 2011 (Tas)
The Tasmanian Disability Services Act 2011 talks about the content of individual plans and:




74
75
ties the plans to specified outcomes that services are intended to facilitate,
specifies the services (whether specialist disability services or not) that may be required to
achieve the outcomes,
specifies any funding that may be required for those services, and
sets out the roles and responsibilities of different parties such as a service provider.75
See Disability Act 2006 (Vic) s52.
Disability Services Act 2011 (Tas) s10.