Commonwealth of Australia Explanatory Memoranda

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DISABILITY SERVICES AND INCLUSION BILL 2023

                       2022-2023




THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                        SENATE




    DISABILITY SERVICES AND INCLUSION BILL 2023




   ADDENDUM TO THE EXPLANATORY MEMORANDUM




              (Circulated by the authority of the
Minister for Social Services, the Hon Amanda Rishworth MP)
                DISABILITY SERVICES AND INCLUSION BILL 2023


This addendum responds to comments raised by the Senate Standing Committee for
the Scrutiny of Bills in Scrutiny Digest No. 14 of 2023, dated 15 November 2023 and
provides additional information to clarify the reasons for the exclusion of merits review
for certain administrative decisions made under the Bill. The addendum also responds
to engagement with members of the cross-bench.

NOTES ON CLAUSES

Clause 9 - Meaning of eligible person

On page 15, after paragraph 25, insert:

The requirement to hold a certificate of compliance is a key element of ensuring that
people delivering regulated activities comply with suitable standards for the safe and
ethical delivery of supports and services to people with disability. It only applies to
persons delivering regulated activities, which are activities that could pose risk to
people with disability.

Article 16 of the Convention on the Rights of Persons with Disability (CRPD)
provides that states parties shall take all appropriate measures to protect persons
with disabilities from all forms of exploitation, violence and abuse and that to facilitate
this, state parties must ensure that all facilities and programs designed to serve
persons with disabilities are effectively monitored by independent authorities.

The necessity of complying with the CRPD and protecting people with disability from
exploitation, harm and abuse should therefore also be awarded appropriate
significance in determining whether decisions under clause 9 should be subject to
merits review.

Further, the Administrative Review Counsel's guidance document, What decisions
should be subject to merits review? (ARC guidance) provides that a decision may be
preliminary or procedural decisions are not suitable for merits review. In this
instance, that substantive decision is to enter into an arrangement with the person.

In practice, the Secretary will not make a determination under subsection 9(2) until a
person has been found otherwise suitable through a grant round or other relevant
process. The Secretary making a determination is a procedural step that must occur,
where the person does not hold a certificate of compliance, before an agreement can
be entered into. Given this, a decision by the Secretary not to make a determination
under clause 9 does not result in hardship or a penalty to a person.

Given the above, it is justifiable to exclude decisions made under clause 9 from
merits review.

Clause 13 - Arrangements and grants

On page 17, after paragraph 36, insert:
The Bill does not preclude provision of eligible activities in any particular setting. For
example, the Bill does not prevent the funding of eligible activities in community-
based, detention, early childhood, online or phone-based settings. Any decision
about selection of eligible activities would be subject to a future decision of
government.

Clause 14 - Terms and conditions

On page 20, after paragraph 63, insert:

The Minister's decision to publish information about a provider's failure to comply
with the terms and conditions on the department's website under paragraph 14(6)(g)
is an important safeguard where the Minister's ability to respond to potential
incidents or complaints is otherwise largely contractual (that is the variation or
cessation of an agreement) rather than regulatory.

In deciding to release information, the Minister will first consider whether this was the
most effective way to achieve the desired safeguarding outcome. Nonconformities
identified during compliance audits or through departmental engagement with the
provider will generally be addressed through voluntary compliance action agreed
between the department or accredited certification body and the person who is a
party to the agreement, and will not lead to the publication of information.
Departmental policies will guide when information may be disclosed so that such
action is taken consistently.

The Minister's decision to publish information will be treated as a significant step
which will only occur if the Minister is entirely satisfied that it is warranted as a
safeguarding mechanism, having regard to the objects and principles of the Bill. This
includes protecting the rights of people with disability to ensure the person who is a
party to the funding agreement delivers safe and ethical supports and services to
people with disability.

For example, if a service funded under the Bill allowed people with disability to
choose among a number of similar providers, releasing information in relation to
significant breaches of the code of conduct would assist people with disability to
exercise informed choice and control in relation to the supports they receive.

This exclusion of merits review of a decision to publish information about
non-compliance is also consistent with other safeguarding schemes, including under
the NDIS Act. Specifically, the NDIS Quality and Safeguards Commission must
maintain and NDIS provider register and publish (amongst other things) details about
a provider's non-compliance with the conditions of a provider's registration under
subsection 73ZS(7) of the NDIS Act. This action is required by law, and therefore not
subject to merits review.

Further, it may be necessary in some circumstances to release information about the
Commonwealth's response to breaches of statutory funding conditions, particularly
breaches of the code of conduct by a service provider. Providing transparency about
how the Commonwealth responds to the unethical and unsafe delivery of supports or
services to a person with disability is critical to maintaining trust in programs
delivered for the benefit of people with disability.

Clause 21 - Accredited certification body may grant certificate of compliance
for meeting compliance standards

On page 27, after paragraph 110, insert:

The certification process (including subsequent surveillance and re-certification
audits) is undertaken collaboratively between an accredited certification body and a
person who has requested a certificate of compliance. In practice, any
nonconformities are identified and the person is given the opportunity to agree and
take steps to remedy these before a certification body makes a decision on granting,
varying or revoking a certificate of compliance under clause 21. This effectively
negates the need for an internal merits review process. In addition, a person
aggrieved by a decision of a certification body will be able to raise complaints about
the process with the certifying body.

In the event that an accredited certification body refuses to grant a certificate of
compliance for a regulated activity on the basis that the certification body is not
satisfied that the person complies with the compliance standards, the body must as
soon as practical after refusing the request, give written notice of the refusal to the
person under subclause 21(4). Similarly, a certification body must give written notice
of a revocation or variation of a certificate of compliance to a person under sub-
clauses 21(6) and 21(9) respectively.

Given the collaborative certification process, and the ample opportunities that a
person will have to rectify any non-conformities before a decision is made, it is
appropriate to exclude merits review from this process.

Further, the intent of a certification body assessing compliance with relevant
standards is to ensure that the process is entirely independent of the
Commonwealth. This means that individual decisions by the certification body are
not, and should not, be subject to internal merits review by the department.

Finally, the process of auditing eligible people and proving certificates of compliance
to people who will be undertaking a regulated activity is a critical aspect of the quality
and safeguarding regime under the Bill. As noted above, the necessity to comply
with the CRPD and protecting people with disability from exploitation harm and
abuse should be balanced with the availability of merits review.

Clause 26 - Accrediting authorities may grant accreditation for certification
bodies

On page 31, after paragraph 146, insert:

Certification bodies who are refused accreditation by the accrediting authority will be
provided with reasons for the refusal by the accrediting authority and would have
recourse through the accrediting authority's internal complaints process.
Part of the Secretary's decision making process under subclause 26(1) will
be ensuring that a person has appropriate internal controls and complaints
processes before approving them as an acceding authority.

The intent of appointing an accrediting authority is to ensure that decision making
process is independent of the Commonwealth. This means that individual decisions
by the accrediting authority are not, and should not, be subject to internal merits
review by the department.

Decisions made by an accrediting authority under section 26 of the Bill are
administrative in nature and subject to judicial review under the Administrative
Decisions (Judicial Review) Act 1977 (ADJR Act).

A reviewable decision under section 3 of the ADJR Act includes a decision of an
administrative character made, proposed to be made or required to be made under a
Commonwealth Act or instrument. Paragraph 3(2)(b) of the ADJR Act provides that a
reference to the making of a decision includes reference to, among other things,
giving or refusing to give approval.

A decision under clause 26 of the Bill is a decision of administrative character as it
requires a decision about whether a person will perform certain functions (set out in
clause 21 of the Bill) competently and impartially. This is the application of law to
particular circumstances. As the decision is made pursuant to the Bill, it is a decision
made under a Commonwealth Act.

Decisions that would be subject to judicial review under clause 26 include a decision
not to grant accreditation as an accredited certification body (subclause 26(3)) and to
withdraw accreditation as an accredited certification body (subclause 26(4)).