EXPLANATORY STATEMENT
Disability Services Standards (Advocacy Standards) (FaHCSIA) Determination 2012
Summary
The Disability Services Standards (Advocacy Standards) (FaHCSIA) Determination 2012 (the Determination) is a determination which is largely based on the existing Disability Services Standards (Eligible Service Standards) (FAHCSIA) Determination 2010 (the Eligible Services Standards). The Determination is made by the Minister of Families, Community Services and Indigenous Affairs and Minister for Disability Reform under paragraph 5A(1)(ba) of the Disability Services Act 1986 (the Act).
Up until the commencement of Schedule 4 of the Social Security and Other Legislation Amendment Act 2011 (the Amending Act), advocacy services have been one of the ‘eligible services’, as defined, under the Act. Accordingly, the Eligible Services Standards were applicable to advocacy services too.
Since the commencement of the Amending Act, advocacy services are now a separate entity from other ‘eligible services’; therefore the Determination seeks to deliver a separate set of standards, applicable only to those the advocacy services funded by the Department of Families, Housing, Community Services and Indigenous Affairs under the Act. The Eligible Service Standards continue to apply to all other ‘eligible services’ as defined under the Act.
The purpose of the Determination is to set out the standards to be observed in the provision of disability advocacy services, as a key requirement of the new Quality Assurance (QA) system (as provided for in the Amending Act). The Determination also specifies Key Performance Indicators (KPIs) relevant to each standard to be applied in assessing whether the standard has been observed in the provision of those services.
Background
The National Disability Advocacy Program (NDAP) assists people with disability to overcome barriers that impact on their daily life and their ability to participate in the community. Disability advocacy agencies have been funded by the Commonwealth since the introduction of the Act. The draft National Disability Framework defines advocacy as enabling people with disability to participate in the decision making processes that safeguard and advance their human rights.
The National Disability Strategy 2012-2020 promotes a major role for disability advocacy within the implementation of this Strategy. The National Disability Strategy is aligned to the articles of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), and will require high quality disability advocacy agencies to enable and support people with disability to safeguard their rights.
Legislation, namely, the Amending Act to enact a new QA system for the NDAP was given Royal Assent on 29 November 2011. The new QA system provides mechanisms independent from government to assess the compliance of disability advocacy services against a tailored set of standards, as distinct from the Eligible Services Standards. Accredited certification bodies will undertake certification assessment of disability advocacy services against the Advocacy Standards.
The new QA system links the funding under the Act to the certification. After the expiration of an 18 month period only those existing disability advocacy services that fully meet the Advocacy Standards will continue to be funded under the Act.
Paragraph 5A(1)(ba) of the Act authorises the Minister to determine the standards for disability advocacy services. Subsection 5A(2)authorises the Minister to approve KPIs to be applied by accredited certification bodies in assessing whether the standards have been observed. The standards and KPIs can only be approved after consultation with the disability sector.
The Determination comprises a set of 10 Advocacy Standards and 25 KPIs.
About the Determination
The Determination is in two parts. Part A provides introductory material to the Advocacy Standards themselves, including definitions of some of the terms used in the Determination. Part B sets out the Advocacy Standards that have been determined by the Minister.
The Advocacy Standards are:
1. Accessing Advocacy
2. Individual Needs
3. Decision-making and Choice
4. Privacy, Dignity and Confidentiality
5. Participation and Integration
6. Valued Status
7. Complaints and Disputes
8. Agency Management
9. Staff, Recruitment, Employment and Training
10. Protection of Human Rights and Freedom from Abuse
Explanation of the provisions
Section 1 – Name of Determination
This section provides that the Determination is the Disability Services Standards (Advocacy Standards) (FaHCSIA) Determination 2012.
Section 2 – Commencement
This section provides that the Determination commences on 1 July 2012.
Section 3 – Application of Standards to advocacy services
This section provides that Standards 1 to 10 are to be observed in respect of advocacy services funded under the Act.
Section 5 – Definition
This section provides definitions for terms used in the Determination.
Part B – The Advocacy Standards
Each Standard articulates the overriding outcome which that Standard is expected to realise for each consumer. Each Standard is supported by a number of KPIs which collectively contribute to achievement of that outcome Standard.
Standard 1 – Accessing Advocacy
Standard 1 includes three KPIs.
Standard 1 requires the disability advocacy agency to ensure that each person with disability has opportunities to access advocacy on the basis of relative need and available resources.
The three KPIs address non-discriminatory policy and processes based on relative need and available resources. People with disability are to be informed about how decisions are made in relation to access and advocacy issues.
Standard 2 – Individual Needs
Standard 2 includes five KPIs.
Standard 2 requires the disability advocacy agency to ensure that each person with disability receives advocacy that is designed to meet their individual needs and interests.
The first four KPIs focus on processes for determining and implementing advocacy objectives with input from people with disability, and the need to avoid, where possible, conflict of interest or the perception of any conflict of interest or deal with conflict or perceived conflict transparently. The fifth KPI has a focus on empowering people to advocate for themselves or their family or others with appropriate strategies (e.g. information, training, mentoring, support).
Standard 3 – Decision Making and Choice
Standard 3 includes two KPIs.
Standard 3 requires the disability advocacy agency to ensure that each person with disability has the opportunity to participate as fully as possible in making decisions about the advocacy activities undertaken.
The two KPIs focus on the application of policies to support people with disability to direct the advocacy activities undertaken by the advocacy agency to meet its advocacy objectives, and to be informed by ethical guidelines.
Standard 4 – Privacy, Dignity and Confidentiality
Standard 4 includes two KPIs.
Standard 4 requires the disability advocacy agency to ensure that the right of each person with disability to privacy, dignity and confidentiality is recognised and respected.
The two KPI’s require agencies to comply with the Privacy Act 1988 and to promote privacy, dignity and respect.
Standard 5 – Participation and Integration
Standard 5 includes two KPIs.
Standard 5 requires the disability advocacy agency to support and encourage each person with disability to participate and be involved in the community.
The two KPIs focus on promoting opportunities for participation and involvement in the community, and where appropriate, the advocacy agency influencing positive systemic change in the community.
Standard 6 – Valued Status
Standard 6 includes two KPIs.
Standard 6 requires the disability advocacy agency to recognise the intrinsic value of each person with disability and to support and encourage them to enhance their valued status in the community.
The two KPIs focus on promoting the aspirations, strengths and intrinsic value of people with disability.
Standard 7 – Complaints and Disputes
Standard 7 includes two KPIs.
Standard 7 requires the disability advocacy agency to encourage each person with disability who has a compliant or dispute with the advocacy agency to raise it, and have it resolved, without threat of retribution.
The two KPIs require agencies to inform people with disability about how to raise complaints and to have mechanisms for resolving those complaints.
Standard 8 – Agency Management
Standard 8 includes three KPIs.
Standard 8 requires the disability advocacy agency to adopt quality management systems and practices that optimise the effectiveness of advocacy for each person with disability and facilitates continuous improvement.
The three KPIs require disability advocacy agencies to have clear aims and objectives, governance and management systems, and a structure in place to ensure that they operate independently and as free as possible from conflicts with other service provision and the interests of each person with disability.
Standard 9 – Staff, Recruitment, Employment and Training
Standard 9 includes two KPIs.
Standard 9 requires that each person who has an employment or volunteer relationship with the advocacy agency has appropriate skills and competencies.
The two KPIs require the disability advocacy agency to ensure that its staff have relevant skills and competencies and that there are opportunities for appropriate training and skills development.
Standard 10 – Protection of Human Rights and Freedom from Abuse
Standard 10 includes two KPIs.
Standard 10 requires the disability advocacy agency to prevent abuse and neglect and uphold the legal and human rights of each person with disability.
The two KPIs require the disability advocacy agency to take all practical and appropriate steps to prevent abuse, neglect and discrimination of each person with disability, as well as upholding and promoting the legal and human rights of each person with disability.
Consultation
In 2006, there was an evaluation of the NDAP undertaken which focused on effectiveness and efficiency, the performance framework and funding. There were consultations held around the country subsequently to provide stakeholders with the opportunity to provide direct feedback on the key areas of consideration. This included the concept of the Advocacy Standards and KPIs. The Advocacy Standards are based on the National Disability Services Standards and tailored to the unique needs of the disability advocacy sector.
In 2007 a Reference Group and Consultation Group were established to advise and contribute towards the development and implementation of a number of changes to the NDAP, including the development of a draft set of the Advocacy Standards and KPIs.
The 2007/08 Australian Government budget provided for the introduction of an independent third party QA system. During 2007/08, FaHCSIA facilitated two rounds of national consultations with funded disability advocacy agencies to seek their views on the appropriateness of the draft set of the Advocacy Standards and KPIs and the introduction of a new QA system. Advocacy agencies were also invited to make written submissions. Based on these consultations, the Advocacy Standards and KPIs were updated to ensure they were relevant and appropriate to the full range of advocacy models.
The Advocacy Standards and KPIs have been extensively trialled and further evaluated since that time.
The new QA system was trialled by 13 NDAP funded agencies from November 2009 to October 2010. The trial assessed the relevance, validity and reliability of the Advocacy Standards and KPIs. A NDAP QA Trial Reference Group, comprised of representatives from the NDAP sector, JAS‑ANZ, certification bodies and Disability Advocacy Network Australia (an advocacy peak body), was established at the commencement of the trial. The Reference Group was involved at all stages during the trial and played a key role in developing its recommendations. The Reference Group worked closely with the FaHCSIA during the trial and all stakeholders participating in the trial had the opportunity to provide feedback on the appropriateness of the Advocacy Standards and KPIs.
An evaluation of the QA trial was conducted by an independent consultant and involved close and regular contact with all stakeholders and the QA Trial Reference Group. Advocacy agency participants all reported positive outcomes and benefits and consumers who participated in the trial audits gave positive feedback about their experience. The overarching recommendation from the evaluation was that, given the positive outcomes of the trial, FaHCSIA should consider further development and implementation of the QA system across the NDAP sector.
The Advocacy Standards and 25 KPIs are based on recommendations by the independent consultant, with further input by the NDAP QA Trial Evaluation Reference Group and Disability Advocacy Network Australia, the peak body representing a number of NDAP disability advocacy agencies.
In 2011 a NDAP QA Implementation Reference Group was established with the purpose of ensuring support for the implementation of the new QA system. This group has developed examples of evidence for the Advocacy Standards and KPIs. The Advocacy Standards and KPIs have been developed broadly at the outcomes level for disability advocacy to allow for the flexibility required by each of the models. The examples of evidence can be updated as required in the future and indeed there have been suggested amendments to the first circulated draft of the Determination. FaHCSIA recently consulted again with the members of the original QA Trial Reference Group on proposed changes and as a result, further changes were made to strengthen the Determination.
Regulatory Impact analysis
The Determination does not impact on business activity and will have no, or minimal, compliance costs or competition impact.
Statement of Compatibility with Human Rights
Disability Services Standards (Advocacy Standards) (FAHCSIA) Determination 2012
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The purpose of this instrument is to set out the standards to be observed in the provision of disability advocacy services by agencies funded by the Australian Government under the Act.
Compliance with the standards is a key requirement of the new QA system, as provided for in the Amending Act. This instrument also specifies KPIs relevant to each standard to be applied in assessing whether the standard has been observed in the provision of those services.
The Amending Act received the Royal Assent on 29 November 2011 and advocacy services are now a separately defined eligible service under the Act. This instrument seeks to deliver a separate set of standards applicable only to those advocacy services.
Human rights implications
This instrument engages the following human rights:
Rights of people with disability
The standards have been developed to comply with the principles of the UNCRPD. The standards also align with the National Standards for Disability Services (National Standards) which are currently being revised as part of the National Quality Framework for disability services.
People with disability will be provided with greater assurance of the quality of advocacy services funded by the Australian Government under the new QA system, as certification of compliance against the standards will be undertaken by independent accredited certification bodies.
The standards were developed following extensive consultation with the disability sector. The new QA system was trialled by 13 advocacy agencies from November 2009 to October 2010 and independently evaluated. The Evaluation Report of the trial, dated December 2010, recommended implementation of the new QA system.
Conclusion
The Legislative Instrument is compatible with human rights because it advances the protection of rights for people with disability.