INTRODUCTION
10.1 The Commission’s terms of reference require it to:
Review the Disability Services Regulation 1993 (NSW) to determine whether there is a need for a regulation and, if so, whether the policy objectives of the DSA Regulation remain valid and whether the terms of the DSA Regulation remain appropriate for securing those objectives.
This chapter examines the Disability Services Regulation 1993 (NSW) (“Regulation”). It considers the power the Minister has under the Regulation to exclude services he or she provides or funds from the operation of the DSA.
RELATIONSHIP BETWEEN THE DSA AND THE REGULATION
10.2 The DSA refers to the Regulation on three occasions:
1. The Governor is empowered to make regulations “not inconsistent with [the] Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to [the] Act”.1
2. The DSA is a funding mechanism for the provision of designated services. A “designated service” is defined to mean “a service that is provided or funded by the Minister and that is prescribed by the regulations, or that belongs to a class of services so prescribed …”.2
3. A “designated service” may be provided by an “eligible organisation”. The definition of “eligible organisation” includes “any society, association or body that is prescribed by the regulations, or that belongs to a class of societies, associations or bodies so prescribed …”.3
PROVISIONS OF THE REGULATION
10.3 The Regulation contains two substantive clauses. Clause 3 relates to the definition of “designated service”. Clause 5 provides for the payment of fees for services provided under the DSA, and is uncontroversial. There is no clause relating to the definition of “eligible organisation”.
Designated services
10.4 Under the DSA, the Minister may approve the provision of financial assistance to an individual to enable a person with a disability to receive a “designated service”, or to an organisation providing “designated services” to people with a disability. As noted in paragraph 10.2 above, a “designated service” is one prescribed by, or belonging to a class prescribed by, the Regulation. The Regulation provides that “all services provided or funded by the Minister” are prescribed as designated services.4 It also provides, however, that the prescribed services do not include services referred to in Schedule 1. Schedule 1 lists services provided or funded under the Home and Community Care Act 1985 (Cth), except those provided through the Home Care Service. This means that HACC services are exempted from the requirements of the DSA.
10.5 In 1998, the Regulation was amended to exclude services provided at Lidcombe by the Multiple Sclerosis Society of NSW from the operation of the DSA.5 The Regulation also provided for that exclusion to be revoked from 1 September 1998.6 Excluding services from the operation of the DSA potentially has significant ramifications for the consumers of the service. Despite this significance, however, the power to make such an exemption is included in the Regulation itself rather than the DSA. Regulations do not necessarily receive the same degree of parliamentary scrutiny as legislation does, since they do not have to be passed by both Houses of Parliament.7 Furthermore, the DSA does not offer any guidance on the criteria the Minister should have to take into account in making the decision to exempt a service from the Act. Consequently, there is potential for such power to be exercised arbitrarily, which would undermine the effect of the objects, principles and applications of principles in the DSA.
VIEWS IN SUBMISSIONS
Exempting services from the operation of the DSA by regulation
10.6 Submissions overwhelmingly considered that the Minister should not have the power to exclude services funded under the DSA from the requirements of the Act’s principles and applications of principles.8 They argued that if the power were to be retained, the basis on which it should be exercised should be clearly set out in the legislation and only used as a last resort.9 Other submissions approved of the power, provided it was subject to certain safeguards: namely, that there should be clearer guidelines for exercising the discretion;10 and that it should be done very cautiously to avoid a two-tier system of services.11 The NSW Government was of the view that the Regulation was an effective way of excluding services from the operation of the DSA, but suggested another option of excluding services by Ministerial order (with appropriate accountability mechanisms).12
Exempting HACC from the operation of the DSA
10.7 Submissions were divided as to whether HACC services should or should not be exempted from the operation of the DSA. Some submissions considered that they should not be exempted13 as they provide essential support to people with a disability,14 and that HACC consumers should have the protection afforded by the DSA.15 Other submissions noted that HACC services should not be governed by the DSA,16 but should be monitored,17 and subject to comparable standards.18 In the view of the Local Government and Shires Associations of NSW, HACC services should have to comply with only one set of standards.19
THE COMMISSION’S VIEW
Unnecessary duplication should be avoided
10.8 The only valid reason for excluding a service providing support to people with a disability from the requirements of the principles and applications of principles, and the quality assurance mechanism associated with the DSA, would be that the service is already subject to its own comparable standards and quality assurance measures. The purpose of the exemption would be to avoid duplicating these processes. Services should not have to waste scarce resources on duplicating accountability requirements. For example, HACC services are subject to Commonwealth standards and standards monitoring. So long as there are appropriate Commonwealth standards, HACC services should continue to be excluded from the operation of the DSA.
Power should be subject to greater scrutiny
10.9 Exempting services from the operation of the DSA is a serious matter. The consequences are that the Minister may provide or fund services that do not comply with the objects, principles and applications of principles in the DSA. Services outside the scope of the DSA are also not subject to the Act’s quality assessment process or review procedures. The Minister should have the power to exempt a service from the operation of the DSA only if he or she is satisfied that the service or class of services to be exempted is subject to standards comparable with the objects, principles and applications of principles, and an effective quality assurance process. In order to achieve greater accountability, this power should be transparent and located in the DSA itself, not in the Regulation.
Recommendation 39
The DSA should be amended to provide that the Minister may, through the Regulation, exempt a service from compliance with the objects, principles and applications of principles of the DSA, but only if he or she is satisfied that the service or class of services to be exempted is subject to standards comparable with the objects, principles and applications of principles, and an effective quality assurance process.
Recommendation 40
The Regulation should continue to provide for services provided or funded under the Home and Community Care Act 1985 (Cth), except those provided through the Home Care Service, to be excluded from the operation of the DSA.
FOOTNOTES
1. DSA s 26.
2. DSA s 4.
3. DSA s 4.
4. Emphasis added.
5. Disability Services Amendment (MS Society) Regulation 1998 (NSW) Sch 1.
6. Disability Services Amendment (MS Society) Regulation 1998 (NSW) Sch 2.
7. Regulations are subject to some parliamentary scrutiny. Written notice of a regulation must be given to both Houses of Parliament within 14 sitting days of it coming into effect (being the date of publication in the Government Gazette): Interpretation Act 1987 (NSW) s 40. Parliament may disallow a regulation at any time before receiving such written notice, or within 15 sitting days after written notice has been given: Interpretation Act 1987 (NSW) s 41(1).
8. Australian Quadriplegic Association Ltd (NSW), Submission; Disability Safeguards Coalition, Submission; DeafBlind Association NSW, Submission; Dare to Care, Submission; D Newey, Submission; NCOSS, Submission; Western Sydney Intellectual Disability Support Group Inc, Submission; Multicultural Disability Advocacy Association of NSW Inc, Submission; Autism Association of NSW, Submission; NSW Council for Intellectual Disability, Submission; and Institute for Family Advocacy and Leadership Development Association Inc, Submission.
9. The Spastic Centre of NSW, Submission; and Confidential Submission 1.
10. The Spastic Centre of NSW, Submission.
11. Confidential Submission 1.
12. NSW Government, Submission at 6.
13. See, for example, Australian Quadriplegic Association Ltd (NSW), Submission; Ethnic Childcare, Family and Community Services Co-operative Ltd, Submission; Paraquad NSW, Submission; DeafBlind Association NSW, Submission; Disability Information Service Inc, Submission; Crossroads Christian Fellowship with Disabled Persons in NSW Inc, Submission; and Physical Disability Council of NSW Inc, Submission.
14. Australian Quadriplegic Association Ltd (NSW), Submission.
15. Paraquad NSW, Submission.
16. See, for example, Disability Safeguards Coalition, Submission; Multicultural Disability Advocacy Association of NSW Inc, Submission; and Institute for Family Advocacy and Leadership Development Association Inc, Submission.
17. Disability Safeguards Coalition, Submission.
18. Nepean Independent Living Committee Inc, Submission.
19. Local Government and Shires Associations of NSW, Submission.
