Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
DISABILITY SERVICES AND INCLUSION (CONSEQUENTIAL AMENDMENTS
AND TRANSITIONAL PROVISIONS) BILL 2023
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by the authority of the
Minister for Social Services, the Hon Amanda Rishworth MP)
DISABILITY SERVICES AND INCLUSION (CONSEQUENTIAL AMENDMENTS
AND TRANSITIONAL PROVISIONS) BILL 2023
Amendments to be moved on behalf of the Government
SUMMARY OF AMENDMENTS
These amendments allow the Minister to make rules establishing a transitional Code
of Conduct (Transitional Code). The substantive provisions of the Transitional Code
will be in the same terms as the Code of Conduct rules made under clause 20 of the
Disability Services and Inclusion Bill 2023.
All providers of disability supports and services subject to the Schedule 3 savings
provisions in this Bill, and providers of certain programs specified in the Financial
Framework (Supplementary Powers) Regulations 1997 (FF(SP) Regulations), will be
required to comply with the Transitional Code. This means existing providers are
subject to the same Code of Conduct requirements as providers funded under the DSI
Bill.
FINANCIAL IMPACT STATEMENT
These amendments will not alter the nil financial impact of this Bill.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this explanatory
memorandum.
NOTES ON AMENDMENTS
Amendment 1 to Schedule 3, page 18 (after line 23), at the end of the Schedules
adds a new Part 4 to that Schedule, dealing with a transitional code of conduct.
Item 11 - Transitional code of conduct
Sub-item (1) provides that the Minister may, by legislative instrument, make rules that
make provision for or in relation to a Code of Conduct that applies to persons who
continue to receiving funding under agreements entered into under the Disability
Services Act 1986 (DS Act) and certain items in the FF(SP) Regulations.
This sub-item allows the Minister to make rules providing for a Transitional Code,
which will form part of the Code of Conduct rules to be made under clauses 20 and 36
of the DSI Bill. The substantive provisions of the Transitional Code will be in the same
terms as the Code of Conduct rules made under the DSI Bill.
The Transitional Code will apply to all existing providers of disability supports and
services funded under the DS Act and certain programs specified in the FF(SP)
Regulations.
Paragraphs 11(1)(a) and (b) apply the Transitional Code to entities receiving funding
under the DS Act. Paragraphs 11(1)(c) and (d) apply the code of conduct to entities
receiving funding under the FF(SP) Act.
Paragraph 11(1)(a) provides that the transitional Code applies to eligible organisations
within the meaning of the DS Act, where:
• before commencement of the DSI Bill, the Minister approved the making of a
grant of financial assistance to the organisation under Part II of the DS Act
• immediately before commencement of the DSI Bill, an agreement with the
organisation under section 15 of that Act is in effect in connection with that
approval.
Part II of the DS Act provides for grants of financial assistance to eligible organisations
for employments services, advocacy services, research and development activities
and a range of other eligible services.
Paragraph 11(1)(b) applies the Transitional Code to a person or body who is a party
to an arrangement that was entered into under Part III of the DS Act before
commencement of the DSI Bill and that is in effect immediately before that
commencement.
Part III of the DS Act relevant provides for arrangements between the Commonwealth
and other persons to provide rehabilitation programs.
The effect of paragraphs 11(1)(a) and (b) is that the Transitional Code, once made,
will apply to entities that are a party to an agreement or arrangement with the
Commonwealth for funding under the DS Act at the time that the DSI Bill commences.
Those entities may remain subject to the Transitional Code for as long as the
agreement or arrangement is in effect.
Paragraph 11(1)(c) applies the Transitional Code to a person to whom money is paid
before, on or after commencement of the DSI Bill under an arrangement made before
that commencement under section 32B of the FF(SP) Act, where the arrangement:
• is in effect immediately before that commencement, and
• is for the purposes of a program, or part of a program, that is specified in the
rules.
Paragraph 11(1)(d) applies the Transitional Code to a person to whom a grant of
financial assistance is made before, on or after commencement of the DSI Bill under
section 32B of the FF(SP) Act, where:
• immediately before that commencement, an agreement between the person
and the Commonwealth is in effect in connection with that grant, and
• the grant is for the purposes of a program, or part of a program, that is specified
in the rules.
The effect of paragraphs 11(1)(c) and (d) is that the Transitional Code may apply to
persons who are a party to an agreement or arrangement with the Commonwealth for
funding under section 32B of the FF(SP) Act so long as the agreement or arrangement
was in effect immediately before the commencement of the DSI Bill.
The agreement or arrangement must be for the purposes of a program, or part of a
program, that is specified in the rules.
Sub-item (2) provides that programs, or parts of programs, must be programs
specified in the FF(SP) Regulations. This will include programs listed under Part 4 of
Schedule 1AA to the FF(SP) Regulations as well as programs listed under Part 4 of
Schedule 1AB of the FF(SP) Regulations.
The ability to specify a part of a program ensures that the rules do not unintentionally
capture activities that are not intended to be covered by the Transitional Code. For
example, an item listed under Part 4 of Schedule 1AB of the FF(SP) Regulations may
provide legislative authority for activities relating to people with disability as well as
activities relating to carers. Most activities relating to carers generally will fall outside
of the intended scope of the DSI Bill and entities providing that activity should not be
required to comply with the Transitional Code.
Sub-item (3) allows the rules to prescribe circumstances in which a person (such as
a provider) breaches the Transitional Code because of an act or omission by a
member of the key personnel (within the meaning of the DSI Bill) of the person or by
an employee or individual otherwise engaged by the person. This makes it the
responsibility of relevant persons to ensure that their key personnel, staff and
contractors comply with the Transitional Code and take necessary and appropriate
action if they do not.
This is consistent with the operation of the Code of Conduct rules to be made under
the DSI Bill.
Sub-item (4) provides that the rules may not do the following:
• create an offence or civil penalty;
• provide powers of:
o arrest or detention; or
o entry, search or seizure;
• impose a tax;
• set an amount to be appropriated from the Consolidated Revenue Fund under
an appropriation in the Bill;
• directly amend the text of the Bill.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
DISABILITY SERVICES AND INCLUSION (CONSEQUENTIAL AMENDMENTS
AND TRANSITIONAL PROVISIONS) BILL 2023
The amendments are compatible with the human rights and freedoms recognised or
declared in the international instrument listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Amendments
These amendments allow the Minister to make rules establishing a transitional Code
of Conduct (Transitional Code). The substantive provisions of the Transitional Code
will be in the same terms as the Code of Conduct rules made under clause 20 of the
Disability Services and Inclusion Bill 2023.
The amendments enable the Code of Conduct to be applied to grant agreements and
other arrangements under programs specified in the Financial Framework
(Supplementary Powers) Regulations 1997 (FF(SP) Regulations) and to grant
agreements under the Disability Services Act 1986 (DS Act).
Human rights implications:
The amendments engage the following rights:
• the rights of people with disabilities - Article 5 and 16 of the Convention on the
Rights of Persons with Disabilities (CRPD)
Rights of people with disabilities
The amendments engage the right of people with disability to equality and non-
discrimination in Article 5 of the CRPD. Article 5 of the CRPD requires States Parties
to recognise that all persons are equal before and under the law and are entitled
without any discrimination to the equal protection and equal benefit of the law. States
Parties shall prohibit all discrimination on the basis of disability and guarantee to
persons with disabilities equal and effective legal protection against discrimination on
all grounds. In order to promote equality and eliminate discrimination, States Parties
shall take all appropriate steps to ensure that reasonable accommodation is provided.
The amendments enable the Code of Conduct to apply to providers who are funded
to deliver disability supports through the DS Act or FF(SP) Regulations. Existing
providers will be subject to the same Code of Conduct requirements as providers
funded under the DSI Bill. This means the same protections are in place for all people
with disability who receive support from Commonwealth disability services outside the
NDIS. Consistent application of the Code of Conduct supports and upholds the rights
of people with disability to equality and non-discrimination.
Article 16 of the CRPD provides that States Parties shall take all appropriate measures
to protect persons with disabilities from all forms of exploitation, violence and abuse.
The requirement to comply with the Code of Conduct forms an important part of how
the DSI Bill implements the Article 16 obligation by setting clear standards for provider
conduct and the safe and ethical delivery of disability services and supports.
Conclusion
The amendment is compatible with human rights because it advances the protection
of the rights of persons with disabilities in Australia consistent with the CRPD.
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