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DISABILITY SERVICES BILL 1993*
NEW SOUTH WALES
EXPLANATORY NOTE
(This Explanatory Note relates to this Bill as introduced into Parliament)
By an agreement entered into on 30 July 1991 between the Commonwealth and each
of the States and Territories, the State has undertaken to develop disability services
programs in accordance with the requirements of that agreement and to enact legislation
complementary to the Disability Services Act 1986 of the Commonwealth so as to
enable those requirements to be met.
In general terms, the agreement allocates the administrative responsibility for certain
services (principally in relation to the vocational training and employment of persons
with disabilities) to the Commonwealth and for certain other services (principally in
relation to accommodation support, respite care, independent living training, recreation
and information) to the States and Territories. The agreement also provides the basis on
which these services are to be funded, involving payments from the Commonwealth to
the States and Territories.
The objects of this Bill are:
(a) to require the Minister to ensure that the provision to persons with disabilities
of designated services (that is, services that are provided or funded by the
Minister and that are prescribed by regulations under the proposed Act as being
designated services) is carried out in a manner that conforms with the objects
of the proposed Act and the principles and applications of principles set out in
Schedule 1 to the proposed Act; and
(b) to declare that the Minister is to have the function of facilitating the provision
of designated services to persons with disabilities; and
(c) to enable the Minister to approve the provision of financial assistance with
respect to the provision of designated services to persons with disabilities and
the conduct of certain kinds of research and development; and
* Amended in committee--see table at end of volume.
(d) to require recipients of financial assistance to enter into performance
agreements with the Minister with respect to the designated services to be
provided by them as a result of their receiving financial assistance; and
(e) to ensure that periodic reviews are carried out in relation to the provision of
designated services to persons with disabilities as a result of the granting of
financial assistance under the proposed Act; and
(f) to require public authorities to prepare and publish plans for their services to
further the principles and applications of principles set out in Schedule 1 to the
proposed Act; and
(g) to enact other provisions of a minor, consequential or ancillary nature; and
(h) to make consequential amendments to other Acts.
PART 1-PRELIMINARY
Clause 1 specifies the short title of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on the date of assent.
Clause 3 specifies the objects of the proposed Act and requires the proposed Act to
be construed and administered in accordance with them. These objects are a specific
head of consideration under proposed sections 6 and 10.
Clause 4 defines certain expressions (inclduing "approved research or development
activity", "designated service", "eligible organisation", "financial assistance" and
"service") for the purposes of the proposed Act.
Clause 5 specifies the target group for the purposes of the proposed Act. A person
belongs to 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:
· a significantly reduced capacity in one or more major life activities such
as communication, learning, mobility, decision-making or self-care; and
· the need for support, whether or not of an ongoing nature.
A temporary patient, continued treatment patient or forensic patient or similar person,
within the meaning of the Mental Health Act 1990, is in the target group only if the
services provided conform with that Act.
A service is taken to be provided for persons in the target group only if it is provided
predominantly for persons in the target group.
PART 2--DISABILITY SERVICES
Division 1--General
Clause 6 provides that it is the duty of the Minister to ensure that designated
services that are provided to persons in the target group, either directly or indirectly, are
provided in conformity with the objects of the proposed Act and the principles and
applications of principles set out in Schedule 1 to the proposed Act.
Clause 7 allows this duty to be modified in relation to designated services being
provided before the commencement of the proposed Act. The modification is to accord
with a transition plan prepared by or at the direction of the Minister and has effect for a
limited period.
Clause 8 provides that the Minister has the function of facilitating the provision of
designated services to persons in the target group and that this function may be
exercised by the provision of designated services (either directly or indirectly), by the
provision of financial assistance or by the encouragement of the provision of designated
services by other persons.
Clause 9 requires public authorities to prepare and publish plans for their services to
further the principles and applications of principles set out in Schedule 1 to the proposed
Act.
Division 2--Financial assistance
Clause 10 enables the Minister to approve the provision of financial assistance to:
(a) a person in the target group; or
(b) a person providing direct care or support to a person in the target group; or
(c) an eligible organisation providing designated services to persons in the target
group; of
(d) a person conducting an approved research or development activity.
Approval is not to be given unless the making of such a grant would conform with the
objects of the proposed Act and the principles and applications of principles set out in
Schedule 1 to the proposed Act.
Clause 11 requires the Minister, when approving the provision of financial
assistance, to determine the amount of the assistance, its manner of payment and the
terms and conditions on which it is to be provided.
Clause 12 specifies the matters to be dealt with in the terms and conditions on
which financial assistance may be provided to an eligible organisation in relation to the
provision of designated services.
Clause 13 specifies the matters to be dealt with in the terms and conditions on
which financial assistance may be provided to a person in relation to the conduct of an
approved research or development activity.
Clause 14 provides that financial assistance to be paid in instalments is to be fully
paid within 5 years of the relevant approval.
Clause 15 requires the Minister to ensure that a review is conducted at least every 3
years of the extent to which eligible organisations that have received financial assistance
have complied with the terms and conditions on which the assistance was provided.
Clause 16 provides for the termination of future instalments of approved financial
assistance. Future instalments payable to a person or an eligible organisation are not to
be terminated unless the person or organisation has been notified of the proposed
termination (including reasons) and has been given an opportunity to make submissions
with respect to the proposed termination and unless the Minister has taken those
submissions into consideration.
Clause 17 provides that financial assistance is not payable unless the proposed
recipient enters into an agreement with the Minister on the same
and conditions as
those on which the granting of the assistance was approved.
Clause 18 enables the Minister to enter into an agreement with the transferee of
certain land, buildings or equipment (that is, land, buildings or equipment the subject of
an agreement under proposed section 17 containing terms and conditions with respect to
their use or disposal) under which the transferee undertakes to observe similar terms and
conditions.
Clause 19 requires payments of financial assistance to be made from funds
appropriated by Parliament. The clause further provides that nothing in the proposed Act
requires financial assistance to be paid otherwise than from funds available to the
Minister and, in particular, that nothing in the clause operates so as to appropriate
money for the purpose of enabling such a payment to be made.
Division 3--Appeals
Clause 20 specifies the grounds on which appeals may be made concerning the
administration of the proposed Act. An appeal is to lie to the community Welfare
Appeals Tribunal. After the constitution of the Community Services Appeals Tribunal
by the proposed Community Services (Complaints, Appeals and Monitoring) Act 1993
appeals will made to the Community Services Tribunal.
PART
3--MISCELLANEOUS
Clause 21 provides that notices etc. required by or under the terms and conditions
of financial assistance under the proposed Act are to be written in other languages where
appropriate.
Clause 22 creates an offence (punishable by a fine of up to 10 penalty units
($1,000)). of making false or misleading statements in or in
with an
application for financial assistance.
Clause 23 provides that proceedings for an offence against the proposed Act or the
regulations under the proposed Act are to be dealt with summarily before a Local Court
constituted by a Magistrate sitting alone.
Clause 24 provides that the proposed Act is to bind the Crown.
Clause 25 provides that nothing in proposed section 3 (Objects) or Schedule 1
(Principles and applications of principles) (nor in the application of those provisions by
proposed section 6 etc.) gives rise to, or affects any civil cause of action. However, the
clause does not affect consideration of those provisions on an appeal under proposed
section 20.
Clause 26 enables the Governor to make regulations for the purposes of the
proposed Act. The regulations will be able to create offences punishable by a fine of up
to 10 penalty units ($1,000).
Clause 27 repeals a regulation in force with respect to provisions of the Disability
Services and Guardianship Act 1987 as a consequence of amendments made to that Act
by Schedule 2.
Clause 29 requires the Minister to review the proposed Act for the purpose of
determining the ongoing validity of the Act's policy objectives. The review is to be
carried out within 5 years after the date of assent to the Act and a report on the outcome
of the review is to be tabled in Parliament within 12 months after the end of that 5 year
period.
SCHEDULE 1--PRINCIPLES AND APPLICATIONS OF PRINCIPLES
SCHEDULE 2--AMENDMENT OF OTHER ACTS
Amendments are made to the Community Welfare Act 1987 so as to require the
Minister to comply with the requirements of Division 2 of Part 2 of the proposed Act
when providing financial assistance under the Community Welfare Act 1987 to people
in the target pup. Consequential changes are also made in relation to the Community
Welfare Appeals Tribunal.
Amendments are made to the Disability Services and Guardianship Act 1987 so as to
vary the long and short titles to that Act and so as to repeal Part 2 of that Act relating to
disability services.
Amendments are made to the Home Care Service Act 1988 so as to require the Home
Care Service to comply with Division 2 of Part 2 of the proposed Act when providing
financial assistance under the Home
Service Act 1988 to people in the target
group