ORDERS UNDER SECTION 14F OF THE DISABILITY SERVICES ACT
EXPLANATORY STATEMENT
Background
In June 1992, a number of amendments were made to the Disability Services Act 1986 (the Act) as part of the Government's strategy to assist funded organisations to improve the standard of service they provide for people with a disability.
These amendments allowed for the introduction of Disability Services Standards for services funded under Part II of the Act and for the formation of Disability Standards Review Panels to review services and advise the Minister in cases where the Minister is considering sanctions against services for not meeting Standards.
Commonwealth Disability Services Standards came into effect under section 9C of the Act in March 1993. The Standards were developed through a process of wide community consultation by a national Disability Services Standards Working Party comprised of representatives of Commonwealth and State governments, peak disability consumer and service provider organisations and the Australian Council of Trade Unions.
This working party has gone on to develop and consult widely on a process for monitoring Standards, including the formation and operation of Disability Service Review Panels.
Sanctions for non-compliance with Standards cannot be applied before Disability Services Review Panels are in place, and Orders under section 14F of the Act are essential to provide for the formation and operation of the Panels.
LEGISLATIVE BASIS FOR SECTION 14F ORDERS
Division 3A (sections 14B – 14F) of the Act provides for the establishment, functions, powers and operational parameters of a Disability Standards Review Panel for each State or Territory. Panels are empowered to review, in defined circumstances, services against the applicable Disability Services Standards determined under section 9C of the Act and to report their findings and recommendations to the Minister.
Section 14B requires the Minister to establish a Disability Standards Review Panel for each State or Territory.
Subsection 14B(2) provides that one Panel may be established for one or more States and Territories.
Subsection 14C(1) sets out the functions of the Panels. These are:
- to review and report to the Minister on the performance of a service in respect of which the Minister proposes to make a declaration under section 14G; and
- to undertake such other functions as the Minister directs. This will allow the Minister to refer a matter to a Panel where there is (for example) disagreement between the Department and a service or a service and the consumers of the service as to whether a particular service is meeting required Standards.
Subsection 14C(2) sets out the situations when a Panel may perform its functions. These are:
- at the Minister's direction; and
- at the written request of an eligible organisation that is providing a service in relation to which the Minister proposes to make a declaration under section 14G.
Subsection 14C(3) requires the Panel to consider whether the applicable standards were being met in respect of the provision of the service.
Subsection 14C(4) provides that the Panel's report to the Minister is to include its findings, the reasons for those findings and its consequent recommendations to the Minister.
Section 14D is a standard provision giving a Panel all the necessary or convenient powers to enable it to perform its functions.
Section 14E provides the following operational parameters for a Disability Standards Review Panel in the performance of its functions:
- to act with as little formality as possible;
- to act as quickly as is appropriate given the requirements of the Act and the need to properly consider a matter before it;
- to not be bound by rules of evidence;
- to inform itself of anything relevant to the matter before it in any way it sees fit;
- to receive information or submissions orally or in writing; and
- to consult such persons as it sees fit, in respect of a matter before it.
Section 14F provides that the Minister may make Orders in relation to the following matters related to the establishment and operation of Panels:
- notifying services prior to the Minister making a section 14G declaration;
- procedures prior to a Disability Standards Review Panel conducting a review of a service under section 14C;
- procedures to be followed by a Panel in conducting a review;
- the making of recommendations by the Panel to the Minister under paragraph 14C(4)(b);
- the terms and conditions of appointment and the duties of Panel members; and
- any other matter relating to the establishment or the operation of Panels.
Under paragraph 24(b) of the administrative guidelines formulated under section 5 of the Act, the Minister must ensure that State governments and an adequate number of people with a disability, their families and advocates, service providers, and interested others are consulted so that the Minister can establish the broad views of these groups, before he or she makes orders under section 14F. The issues addressed by the orders formed part of nation-wide community consultation on a process to monitor Disability Services Standards, carried out by the Disability Services Standards Working Party in the first half of 1993.
Section 31 of the Act provides that orders made by the Minister under section 14F are disallowable instruments. Consequently, the orders are required to be notified in the Gazette and tabled in each house of Parliament. The provisions of the Orders instrument are subject to disallowance by Parliament.
Division 3B (sections 14G - 14J) sets out the process for imposing sanctions in those situations where a service fails to meet the applicable Standards.
The application of sanctions is a final measure which would only be used after all reasonable efforts to assist a service have failed. In applying sanctions every effort will be made to ensure that people with a disability are not further disadvantaged.
Section 14G enables the Minister to make a declaration in respect of a service which is receiving a grant under Part II of the Act and is not meeting the applicable Standards.
The declaration is to state that the organisation has not complied with the the condition of grant that it meet the applicable standard, and it is to specify the action that will be taken as a result of the failure to meet the applicable standards. However, any action specified in the declaration must be provided for in the terms and conditions of financial assistance.
Subsection 14H(1) lists preconditions which must be met before the Minister can make a declaration or impose a sanctions under section 14G. These conditions are:
- a Disability Standards Review Panel must have been established for the State or Territory in which the service operates;
- the requirements set out in the Ministerial orders made under section 14F must have been complied with;
- the Minister must have complied with any guidelines in force under section 5 that relate to making such a declaration; and
- if the eligible organisation has sought a review by a Disability Standards Review Panel, the Minister must have regard to the recommendations made by the panel under paragraph 14C(4)(b).
Subsection 14H(2) provides that in making a declaration under section 14G the Minister is not obliged to give effect to the recommendations made by the Panel if he or she is satisfied there is a more appropriate course of action.
NOTES ON THE CLAUSES OF THE SECTION 14F ORDERS
Paragraph 14F(a) - the notice requirements to be complied with before the Minister makes a declaration under section 14G.
Orders under this paragraph of the Act cover:
- Organisations are to be notified in writing of the Minister's intention to issue a section 14G declaration;
- Organisations to have 10 working days to request a disability Services Standards review under subsection 14C(1).
Paragraph 14F(b) - The procedures to be followed prior to a Disability Standards Review Panel conducting a review under section 14C.
Orders under this paragraph of the Act cover:
- Before conducting a review, a Panel must issue a notice of intention to conduct a review of a service, stating;
- the organisation has 15 working days to provide information to the Panel before the review starts,
- that the organisation may inspect documents and other material to be used by the Panel, and
- the organisation may make submissions to the Panel;
- Panels should normally report their findings to the Minister within 20 working days of commencing a review.
Paragraph 14F(c) - The procedures to be followed by the Panel in conducting the review.
Orders under this paragraph of the Act cover:
- The conduct of meetings of Panels including;
- the provision that a Chairperson may nominate a presiding member in the absence of the Chairperson,
- procedures of meetings,
- the ability of panels to make resolutions without meetings; and
- the impartiality of Panel members.
Paragraph 14F(d) - The making of recommendations under paragraph 14C(4)(b) relating to the Panel's findings.
Orders under this paragraph of the Act cover:
- Recommendations by Panels to the Minister to be in writing setting out any minority views of Panel members.
Paragraph 14F(e) - The appointment, terms and conditions of appointment, resignation and termination of appointment of Panel members.
Orders under this paragraph of the Act cover:
- The appointment by the Minister of a pool of potential Panel members for each State with knowledge and experience in;
- issues related to people as consumers of disability or other welfare services,
- issues related to provision of disability services,
- other matters related to review of disability services;
- Panels for particular reviews are to consist of;
- a person with service provider expertise and a person with consumer expertise, chosen from the pool by the Chairperson, and
- A Departmental officer chosen by the Secretary of the Department, and may include
- another person with expertise relevant to the review, chosen by the Chairperson from the Pool;
- The Minister is to appoint as a Chairperson for each State or Territory (or for more than one State or Territory) a person with broad knowledge of disability services and issues related to people with a disability, for a period of three years;
- The Minister may terminate the appointment of the Chairperson or people appointed to the pool of potential Panel members under certain conditions;
- Members of Panels hold office on a part time basis;
- Remuneration and allowances are to be determined by the Remuneration Tribunal; and
- Leave of absence may be granted to the Chairperson by the Minister and to Panel members by the Chairperson and a temporary Chairperson or member appointed.
Paragraph 14F(f) - the duties associated with holding office as a Panel member.
Orders under this paragraph of the Act cover:
- The duties of confidentiality, compliance with privacy legislation, diligence and impartiality of Panel members.
Paragraph 14F(g) - other matters relating to the establishment or the operation of a Panel
Orders under this paragraph of the Act cover:
- The provision of annual reports on Panels' activities to the Minister;
- Disclosure of conflict of interests by the Chairperson and panel members;
- Provision for a delegation to allow a Departmental officer to write to a service on the Minister's behalf [under order 2(2)] informing the service that the Minister intends to make a declaration under section 14G of the Act that the service is not meeting standards; and
- The ability of Panels to seek legal advice from the department regarding issues related to the release of information.