Bills Digest No. 54 2001-02
Disability Services Amendment (Improved Quality Assurance) Bill
2001
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Disability Services Amendment (Improved
Quality Assurance) Bill 2001
Date Introduced: 23 August 2001
House: Senate
Portfolio: Family and Community Services
Commencement: 1 January 2002 apart from sections 1-3 which
commence on Royal Assent.
The Bill amends the
Disability Services Act 1986 in order to establish a new
quality assurance system in relation to disability employment
services and rehabilitation programs.
The Department of
Family and Community Services (FaCS) has programs that provide
employment support for people with disabilities through either open
or supported employment services. These services are mainly
charitable, non-profit agencies that are contracted by FaCS to
provide employment support. FaCS currently funds 435 organisations
to provide more than 870 specialist employment services, which are
used by 49,285 people with disabilities. $279 million has been
allocated to these programs in 2000-2001.(1) FaCS also
provides vocational rehabilitation through 160 Commonwealth
Rehabilitation Service Australia outlets at a cost of $101.9
million (2000-2001).(2)
These disability employment and rehabilitation
providers are funded under the Disability Services Act
1986. That Act came into operation in 1987 with one of its
objects being to assist persons with disabilities to achieve
positive outcomes, such as increased independence, employment
opportunities and integration in the community.(3)
In 1993, the then Labour Government introduced
the Disability Services Standards with the intention of improving
the standard of services being offered. These standards set out
eleven areas of service quality that consumers are entitled to
expect. They include service access; privacy, dignity and
confidentiality; employment conditions; employment support; and
employment skills & development.
These Disability Services Standards were
introduced with a new legislative regime that recognises three
levels of performance against them - minimum, enhanced and eligible
levels. The intention being that services should improve through
the three tiers and reach the eligibility classification level.
Monitoring of service quality against the
Disability Services Standards is required under Section 14K of the
Disability Services Act. It involves an annual self-assessment
process undertaken by each service and a five yearly audit by FaCS
to measure compliance against the standards.
According to the Explanatory Memorandum to the
Bill, this process of improvement has met with limited success and
many of the supported employment services have not made the
expected improvements to meet the highest level of standards.
Currently, 39 per cent of funded services meet the Disability
Services Standards at the minimum level.(4)
Disability Quality and Standards Working
Party
In its 1996/97 Budget, the Government announced
its intention to reform the quality assurance process for
disability employment assistance services.(5) A
Disability Quality and Standards Working Party was set up to review
the current system, its terms of reference being to:
-
- conduct a review of the Disability Services Standards for
continuing suitability
-
- develop models for quality assurance systems which would
provide an objective way of auditing and monitoring standards of
service, and
-
- develop mechanisms for ensuring that people with disabilities
are able to participate fully in the quality assurance
process.
The Working Party in its report, Assuring
Quality(6), recommended amongst other things,
that:
-
- the existing quality assurance system set down in the
Disability Services Act 1986 be replaced
-
- the existing Disability Services Standards be retained to
provide the values base for a new quality assurance system for
Commonwealth funded disability employment services, subject to the
addition of two new core standards to cover staff recruitment and
training and prevention of abuse and neglect
-
- a transparent accreditation process be introduced as part of
the proposed funding reforms to indicate service providers'
compliance with the standards and eligibility for funding
-
- service providers' access to Commonwealth funding be
conditional upon achievement of accreditation
-
- new independent auditing mechanisms against objective
performance indicators be introduced to replace the existing annual
self assessment by service providers and five yearly audits by
Departmental staff, and
-
- auditors be independent of the service provider being audited,
and skilled in auditing techniques and procedures and the
assessment of disability services, have knowledge of people with
disabilities in regard to their varying support and communication
needs and ways of involving them in the audit
process.(7)
The majority view of the Working Party preferred
accreditation of service providers to be verified by a generic
auditing process without reference to the proposed accreditation
and quality body. Under this model, the accreditation and quality
body would act as an advisory body, not empowered to grant
accreditation. Third party auditors from audit bodies accredited
for the AS/NZS ISO 9002: 1994 would conduct audits and verify
accreditation.
The Disability Services Amendment (Improved
Quality Assurance) Bill 2001 (the Bill) is the Government's
response to these recommendations.
Disability Services Amendment (Improved Quality
Assurance) Bill 2001
The quality assurance system proposed in the
Bill is based on a system of accreditation and certification. It
involves the use of skilled audit teams whose competence and
impartiality will be monitored by an independent, accreditation
agency, the Joint Accreditation System of Australia and New Zealand
(JAS-ANZ).
JAS-ANZ is a government entity, a
not-for-profit, self-funding organisation, established under Treaty
between Australia and New Zealand in 1991. It is the peak
accreditation body for the certification of various systems,
products and sector-specific schemes.
The certification agencies approved by JAS-ANZ
will be responsible for putting together audit teams that will meet
the skills and competencies outlined in the General Criteria
and Guidelines for Bodies Operating Assessment and Certification of
Disability Employment Services (Procedure 18 of the JAS-ANZ
Auditing Criteria). Each audit team is to include a person with a
disability.
Accredited certification agencies will assess
disability employment services against the Disability Services
Standards.
A service's certification status will, after a
transition period of up to three years, be linked to funding, so
that after December 2004, only those existing disability employment
assistance and rehabilitation services that are certified will
receive Commonwealth funding under the Disability Services Act.
During the first six months of 2001, FaCS
conducted a trial of this proposed accreditation/certification
scheme. It involved certification audits of 22 disability services
and accreditation of six potential certification bodies. The
Explanatory Memorandum provides more detail of this
trial.(8)
Financial impact
The measures in the Bill were announced in the
2001-2002 Budget. Estimated expenditure for the quality assurance
measure is $2.0m in 2001-2002, $4.7m in 2002-2003, $5.3m in
2003-2004 and $5.2 in 2004-2005.(9)
The Bill establishes a new quality assurance
system for disability employment services. It makes funding for the
provision of certain services dependent on the service provider
holding a certificate of compliance issued by an accredited
certification body This arrangement will apply to those services
that are referred to as 'employment services'.
Employment
services
Central to the proposed regime is the amended
definition of 'employment service'. Currently defined in section 7
as a service that focuses on obtaining paid employment by persons
with disabilities, item 10 adds to this definition
to specify that it includes:
-
- competitive employment training and placement services
-
- supported employment services
-
- services that immediately before 1 January 2002 were
transitional services or prescribed services, and
-
- any service that the Minister determines for that purpose under
new section 9A.
'Competitive employment training and placement
services' are redefined as services assisting persons with
disabilities to obtain or retain paid employment (item 6,
section 7). 'Supported employment services' will continue
to be defined as services supporting the paid employment of persons
with disabilities (section 7). 'Prescribed services' are
essentially services providing or otherwise assisting with,
obtaining paid employment for persons with
disabilities.(10) 'Transitional services' are defined as
being prescribed services working towards meeting the eligibility
standards.(11)
New section 9A gives the
Minister a discretionary power to approve an additional class of an
employment service if the Minister is satisfied that the provision
of services included in that class would further the objects of the
Disability Services Act and its principles and objectives, and
would comply with the relevant guidelines (item
20).
As a consequence of the amendments made by
item 10, 'transitional services' and 'prescribed
services' will be subsumed in the definition of employment
services. The definitions of 'transitional services' and
'prescribed service' in section 7 are therefore to be repealed by
item 18 and item 14,
respectively. Items 19 and 20 also make amendments
that are consequential to this new definition of employment
services.
Eligible,
transitional and prescribed services
Currently, the Disability Services Act provides
for the making of grants on the condition that an eligible service
is meeting the eligibility standards, a transitional service is
meeting the enhanced standards and a prescribed service is meeting
the minimum standards. The standards for these different levels of
services are determined by the Minister under section 9C.
As 'transitional services' and 'prescribed
services' are to be subsumed into the definition of employment
services(12), the provisions dealing with transitional
and prescribed standards become obsolete. Consequently,
item 11 repeals the definition of 'enhanced
standards' and item 12 repeals the definition of
'minimum standards'.
The new quality assurance system that proposes
to link financial assistance under the Disability Services Act with
certification of services will not apply to eligible services. The
current assessment system and grant conditions will continue to
apply to those services.
The inclusion in the new definition of
'employment service' of two types of services currently defined as
eligible services (ie 'competitive employment training and
placement services' and 'supported employment services')
necessitates a consequential amendment to the definition of
'eligible service'.
Item 9 repeals and replaces the
definition of 'eligible service'. The new definition is reduced in
scope and includes accommodation support services, advocacy
services, independent living training services, information
services, print disability services, recreation services, respite
services and services included in a class of services approved for
that purpose by the Minister under new section 9. It no longer
includes any type of employment services.
Standards
The proposed system of funding for disability
employment services is to be tied directly to accreditation, and
accreditation is to be assessed according to standards determined
by the Minister.
Item 1 inserts new
section 5A which enables the Minister to determine
eligible standards,(13) disability employment standards
and rehabilitation program standards. The Minister must also
determine key performance indicators to be applied in assessing
whether the standards have been met. Determinations made under new
section 5A are disallowable instruments (item
46).
Items 11 and 12 remove the
definitions of enhanced standards and minimum standards as they
will have no application under the proposed new scheme.
Item 2 is a saving provision
relating to Ministerial determinations of eligibility
standards.
Accreditation and certification
Item 3 inserts Part IA into the
Disability Services Act. It provides the framework for the new
accreditation and certification system for disability employment
services and rehabilitation programs.
New section 6A of the
Disability Services Act includes definitions relevant to the
accreditation and certification process. For example, it includes
definitions of certificate of compliance, certifying functions and
accreditation.
Under new section 6B, the
Secretary of FaCS may approve an authority that has the function of
granting accreditation to certification bodies. This approval will
be dependant on the Secretary being satisfied the authority is
internationally recognised as an accreditation body and will
perform its functions in an independent and impartial way.
An accrediting authority is defined in section
6A as an authority approved by the Secretary under new
section 6B for the purpose of granting accreditation to
certification bodies. It is intended that the Joint Accreditation
System of Australia and New Zealand (JAS-ANZ), will be the approved
accrediting authority.
New section 6C deals with
granting and withdrawal of accreditation by an accrediting
authority (ie JAS-ANZ). Under new subsection 6C(1)
the functions of an accrediting authority are to assess whether
certification bodies will carry out certifying functions
competently and impartially and, if so, to grant accreditation to
the body. According to the Explanatory Memorandum, the assessment
is carried out in accordance with disability auditing criteria
established by the accrediting authority and made publicly
available.(14)
Under new subsection
6C(2) an accrediting authority must withdraw accreditation
if it is no longer satisfied that an accredited certification body
is carrying out its functions competently and impartially.
An accrediting authority must notify the
Secretary in writing of any grant or withdrawal of accreditation,
and include in the notification, the authority's reasons for its
decision (new subsection 6C(3)).
A certification body is defined as a body that
carries out certifying functions. Certifying functions mean
assessing whether an employment service or a rehabilitation program
meet the relevant standards and giving certificates of compliance
where appropriate (new section 6A).
New section 6D deals with
certification of employment services.
Under new subsection 6D(1) if a
State (including the Northern Territory) or eligible
organisation(15) requests a certificate of compliance,
the certification authority, must give the certificate, provided it
is satisfied that the particular employment service meets the
disability employment standards.
Under new subsection 6D(2) a
certification body, no longer satisfied that the service meets the
disability employment standards, must revoke the certificate.
According to the Explanatory Memorandum the certification body will
carry out full three-yearly audits and annual surveillance audits
to ensure that only services that continue to meet the disability
employment standards are certified. (16)
A certification authority must notify the
Secretary in writing when it grants or revokes a certificate of
compliance and include in the notification, the authority's reasons
for its decision (new subsection 6D(2))
A certificate of compliance continues until
either it is revoked or, if the certification body ceases to be
accredited, then until three months after accreditation ceases.
New section 6E establishes a
similar framework for certification of rehabilitation programs.
Grants for employment services
Item 21 inserts new Division 2A
into Part II of the Disabilities Services Act. The new Division
deals with grants for employment services. These are categorised as
either 'transitional grants' or 'other than transitional
grants'.
New sections 12AA and 12AB
relate to approval of transitional grants, that is grants for
employment services, approved during a three-year transitional
period and receiving funding during the financial year, 2001-2002
under the existing arrangements.
New subsection 12AA(1)
specifies when, and in respect of which employment services, an
approval may be given for a transitional grant in the period from 1
January 2002 until 31 December 2004. Transitional grants may only
be given if the particular employment service had already received
a grant, or an instalment of a grant, during the financial year
2001-2002. A transitional grant cannot be approved if:
-
- at the time when the approval would be made, the State or
eligible organisation holds or has held a current certificate of
compliance in respect of the service
-
- before the approval, the State or organisation had received a
grant other than the transitional grant under new section
12AD, or
-
- a transitional grant that the State or organisation was
previously receiving was terminated (new subsection
12AA(2)).
New section 12AB sets out the
conditions that apply to receiving a transitional grant for an
employment service. These conditions are as follows:
-
- The service must be provided for persons in a target
group(17)
-
- The Minister must be satisfied that the making of the grant
would further the object of the Disability Services Act set out in
section 3 and would comply with guidelines formulated under section
5
-
- The Minister has determined a day by which the State or
eligible organisation must obtain a certificate of compliance. That
day can be no later than 31 December 2004, and
-
- The Minister is satisfied that the State or organisation is
meeting the applicable standards when the grant for the financial
year 2001-2002 was paid
In addition, the State or organisation must
comply with the following conditions:
-
- It must meet the relevant standards during the time before
obtaining a certificate of compliance, and
-
- It must hold the certificate of compliance until the end of the
period to which the grant relates (new subsection
12AB(4)).
New sections 12AC and 12AD
relate to approval of 'other than transitional grants'. Essentially
these are grants that are tied to a certificate of compliance.
New section 12AD specifies the
circumstances under which approval for the making of such a grant
may be made:
-
- The service must be provided for persons in a target group,
and(18)
-
- The Minister must be satisfied that the making of the grant
would further the object of the Disability Services Act set out in
section 3 and would comply with guidelines formulated under section
5.
In addition, the approval is subject to the
State or organisation holding a relevant certificate of compliance
or alternatively a stated intention to seek to obtain such a
certificate by a day stipulated by the Minister. The date for
obtaining the certificate of compliance must be within 12 months of
approval of the grant. New subsection 12AD(4)
authorises the Minister to make determinations regarding the day by
which the State or organisation must obtain a certificate of
compliance.
If a grant is approved under this section, the
State or organisation must hold a current certificate of compliance
through out the period to which the grant relates (new
paragraph 12AD(5)(a)).
New section 12AE sets out the
additional conditions that apply to all grants for employment
services (ie both 'transitional' and 'other than transitional'
grants). It largely replicates the current provisions relating to
grants for eligible services (see section 10).
- Under new subsection 12AE(1)
the Minister may approve the making of a grant for an employment
service with respect to recurrent expenditure, cost of acquiring
land, building cost and cost of equipment.
If the Minister approves a grant under
new sections 12AB or 12AD, he or she must
determine:
-
- the amount of the grant
-
- the time at which, and the instalments in which, the grant is
to be paid, and
-
- specify any other terms and conditions of a grant (new
subsection 12AE(2)).
The Minister must also specify any other terms
and conditions of a grant (new paragraph
12AD(2)(c)). New subsection 12AE(3)
provides a list of what those other terms and conditions might be.
They include:
-
- the purposes of the grant
-
- the amounts to be used for each purpose
-
- the outcomes to be achieved by persons with disability using
the service, and their rights in relation to the provision of the
service
-
- the giving of security for the fulfilment of terms and
conditions, and
-
- the use and disposal of the amounts that represent the
Commonwealth's interest in land, buildings and equipment.
Payment of the grant by instalments must be
completed within 5 years of approval of the grant (new
subsection 12AE(4)).
Item 22 repeals sections
12A-14A which relate to grants for prescribed and transitional
services. After 1 January 2002 grants for prescribed services and
transitional services will be made as part of the arrangements for
grants for employment services.
Failure to meet standards
- Where a service fails to meet applicable
standards under the Act, section 14G enables the Minister to make
declarations as to the action to be taken as a result of the
failure to comply with the condition.
Item 26 repeals and rewords
section 14G to take account of the new system of accreditation.
Under new subsection 14G(1A) the Minister may make
a declaration stating that the State or organisation is not meeting
the applicable standards and is breaching the conditions of the
grant. The Minister may also specify in the declaration the actions
that will be taken as a result of the failure to comply with the
standards or failure to hold a certificate of compliance.
Items 27-29 are consequential
amendments to item 26.
Delegation
by Minister
Subsection 33(1) lists the Minister's powers
under the Disability Services Act that cannot be delegated.
Items 48 and 49 amend subsection 33(1) to add to
this list:
-
- the power to determine standards and approve key performance
indicators under new section 5A, and
-
- the power to give approvals under new sections 9 and 9A.
Item 50 makes amendments that
relate to savings and transitional arrangements for grants of
financial assistance approved in this financial year.
-
- Explanatory Memorandum, p. i.
- ibid.
- Subparagraph 3(1)(c)(ii).
- Explanatory Memorandum, p. i.
- The Hon. Judi Moylan, 'Increase benefits for people with a
disability' Press Release, 20 August 1996.
- April 1997.
- Assuring Quality, para 21.
- Explanatory Memorandum, p. xi.
- ibid, p. i.
- Section 7.
- In sections 7 and 9A. Note that item 20
repeals and replaces section 9A.
- see above at p. 4.
- The power for the Minister to determine eligibility standards
is currently found in section 9C. This section is repealed by
item 20 and the power is relocated to new section
5A.
- page 9.
- An eligible organisation is defined in section 7 as a body
corporate (non-profit), a State or Territory governing body, a
tertiary institution or any other society, association or body
approved by the Minister for the purpose of this definition.
- p. 11.
- Target group is defined in section 8 of the Act, as consisting
of persons with disability that is attributable to an intellectual,
psychiatric, sensory or physical impairment or combinations of such
impairments, is permanent or likely to be permanent and results in
substantially reduced capacity for communication, learning or
mobility and the need for ongoing support services.
- ibid.
Mary Anne Neilsen
17 September 2001
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to
Senators and Members of the Australian Parliament. While great care
is taken to ensure that the paper is accurate and balanced, the
paper is written using information publicly available at the time
of production. The views expressed are those of the author and
should not be attributed to the Information and Research Services
(IRS). Advice on legislation or legal policy issues contained in
this paper is provided for use in parliamentary debate and for
related parliamentary purposes. This paper is not professional
legal opinion. Readers are reminded that the paper is not an
official parliamentary or Australian government document.
IRS staff are available to discuss the paper's contents with
Senators and Members
and their staff but not with members of the public.
ISSN 1328-8091
© Commonwealth of Australia 2000
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
duties.
Published by the Department of the Parliamentary Library,
2001.
Back to top