Federal Register of Legislation - Australian Government

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Guides & Guidelines as made
This instrument formulates guidelines on matters relevant to the administration of Part II of the Disability Services Act 1986.
Administered by: Social Services
Registered 28 Nov 2013
Tabling HistoryDate
Tabled HR02-Dec-2013
Tabled Senate02-Dec-2013

EXPLANATORY STATEMENT

 

Disability Services (Administration of Part II of the Act) Guidelines 2013

 

 

Summary

 

The Disability Services (Administration of Part II of the Act) Guidelines 2013, (the Guidelines), made under subsection 5(1) of the Disability Services Act 1986 (the Act), are relevant to the administration of Part II of the Act that deals with funding of eligible services, research and development activities, employment services and advocacy services for people with disability.

 

The purpose of this instrument is to formulate guidelines on matters relevant to the administration of Part II of the Act to enable efficient and effective grants management processes for circumstances not covered by the Disability Services (Administration of Part II of the Act) Guidelines 2002 (‘the current Guidelines’) and to provide for the inclusion of advocacy and eligible services and research and development activities (as defined in Part II of the Act).

 

The current guidelines for the administration of Part II of the Act, the Disability Services (Administration of Part II of the Act) Guidelines 2002 are revoked.

 

The Guidelines seek to streamline the process for the making of a grant under the Act whilst having regard to existing Commonwealth government policies, legislation and other applicable granting requirements such as the Commonwealth Grant Guidelines.     

 

The Guidelines include references to eligible and advocacy services as required by sub-paragraph 10(3)(a)(ii) and sub-paragraph 13(2)(a)(ii) of the Act and financial assistance for research and development activities as required by paragraph 12(3)(b) where not previously covered by the current Guidelines.

 

These Guidelines commence as provided under section 5 of the Act.

 

Regulatory Impact Statement

 

A Regulation Impact Statement is not required for these Guidelines because these Guidelines do not impact on business activity and will have no, or minimal, compliance costs or competition impact.

 


 

Background

 

The application of the current Guidelines has proved to be restrictive and process driven.  There is limited flexibility in circumstances where organisations already funded under the Act seek to amalgamate, merge with another organisation, split from a parent organisation to form a new entity, make a change to their corporate status or structure, or when an organisation goes into administration and service provision is put at risk, or where the service provision has ceased or will cease for any other reason and an alternative service provider is sought.

 

There is also no provision within the current Guidelines to allow for the transfer of an employment place from one organisation to another in circumstances where a person with a disability’s job is in jeopardy and another eligible organisation could provide the required support if a grant could be transferred.  

 

In all of the above circumstances, the current Guidelines Part 3
process for the making of a grant for a new service is applied.  This is not practicable or an achievable solution in those types of circumstances and may pose a risk to service provision for people with disability. 

 

The Guidelines streamline the current Guidelines and removes the concept of a “grant for a new service” and “other grants” and combine both sections under the new Part 3.  The Guidelines streamline the granting process and allow for discretion about the management of making of grants whilst having regard to existing Commonwealth Government policies, legislation and other applicable granting requirements such as the Commonwealth Grant Guidelines.

 

Explanation of the provisions

 

Part 1 Preliminary

 

1. Name of Guidelines

 

Section 1 states the name of these Guidelines.

 

Note 1 clarifies that these Guidelines do not apply to the administration of any State or Territory Disability Services Act.

 

Note 2 directs the reader’s attention to the Disability Services (Rehabilitation Programs) Guidelines 2007 for matters relating to the administration of Part III of the Act.

 


 

2.  Commencement

 

Section 2 states that these Guidelines commence as provided under section 5 of the Act.  The effect of section 5 of the Act is that the Guidelines do not commence until after the end of the disallowance period or until after both Houses of the Parliament have approved amendments (if any) to the Guidelines, whichever date is later.

 

3.  Authority

 

Section 3 states that this legislative instrument is made under the Disability Services Act 1986.

 

4.  Revocation

 

Section 4 revokes the current Guidelines, that is, the Disability Services (Administration of Part II of the Act) Guidelines 2002.

 

A note explains that the Acts Interpretation Act 1901 provides that the power to make the Guidelines also gives power to revoke the Guidelines.

 

5.  Purpose of these Guidelines

 

Section 5 specifies the purpose of the Guidelines. Section 5 replicates the provision of the current Guidelines and adds consideration of maintaining continuity of service for people with disability.  This is to acknowledge that without consideration of continuity of service provision in the making of a grant, people with disability may lose access to their current services.

 

The purpose of the Guidelines is:

 

-               to promote fair, open, consistent and accountable-decision making;

-               to inform the community about the decision making-processes and factors to be considered in making decisions under the Act;

-               to assist interested parties in applications for grants;

-               to promote and encourage the provision of services in areas and communities of greatest need;

-               to facilitate the development of services for people most in need;

-               to maintain continuity of service; and

-               to promote the efficient and effective administration of Part II of the Act.

 

Subsection 5(2) specifies further that the Guidelines provide direction for administering the Act with due regard to limited resources available for services and programs under the Act and the need to consider equity and merit in the allocation of those resources. 

 

The Guidelines add to the current Guidelines that due regard should all be given to the need to consider the rights and best interests of people with disability supported by those resources including through the maintenance of  continuity of service.  This acknowledges that people with disability should also be considered in the making of a grant.

 

6.  Definitions

 

Subsection 6(1) substantially replicates section 5 in the current Guidelines but also removes the definition of grants for a new service and updates the Commonwealth State Territory Agreement with the National Disability Agreement.

 

Subsection 6(2) provides that if words used in the Guidelines are not defined under subsection 6(1), they have the same meaning as in the Act. 

 

Part 2 – Approval of additional classes of services.

 

7.  Consultation before approving additional class of services

 

Section 7 of the Act specifies classes of eligible services and classes of employment services.  Sections 9 or 9A of the Act provide the Minister with the discretion to approve an additional class of eligible and employment services.

 

Section 7 of the Guidelines requires the Minister to ensure that consultations with an adequate number of people with a disability, their families, advocates, service providers and interested others occurs before the Minister approves that class. The purpose of the consultation is to determine the extent to which the approval of proposed class will be consistent with the objects set out in section 3 of the Act and the principles and objectives set out in section 5 of the Act, and the extent to which the new services offered in that class will meet the needs of people with a disability.

 

The requirement of section 7 of the Guidelines mirrors the requirement in the current Guidelines relating to the approval of new classes of services at section 6.

 

8.  Consideration before approving an additional class of services

 

Section 8 requires the Minister to consider the following factors before the approval of a new class of eligible and employment services:

 

-               the results of the consultation conducted as required under section 8 of these Guidelines;

-               whether the proposed class of services will be responsive enough to the needs of a wide range of people in the target group;

-               whether the services in the proposed class will be cost- effective;

-               whether any provisions of the National Disability Agreement applicable to the approval of new classes of services have been complied with.

 

Section 8 is not intended to preclude a class of services from including individual services that would deliver services in the way appropriate only for people with particular functional support need.

 

The requirement of section 8 mirrors the requirement in the current Guidelines at section 7 relating to consideration before approving an additional class of services. 

 

9.  When the Minister approves an additional class of service

 

Section 9 provides that when the Minister approves an additional class of eligible services or employment services under sections 9 or 9A of the Act, the Minister must set out a definition or description of the class, consider whether the existing standards and key performance indicators (if relevant) are appropriate for the new class, and if they are not, determine standards that are appropriate and approve appropriate key performance indicators.

 

The note further alerts the reader to the requirement of complying with section 23 regarding consultation before the Minister determines standards and approves key performance indicators.

 

The requirement of section 9 of these Guidelines mirrors the requirement in the current Guidelines at section 8 relating to the approval of new classes of services.

 

Part 3 Matters relevant to making grants

 

10.  Grants in relation to which this Part applies

 

Section 10  states that Part 3 applies in relation to grants for eligible services under section 10 of the Act, research and development activities under section 12 of the Act, employment services under section 12AD of the Act and advocacy services under section 13 of the Act.

 

11.  Other policy and legislative requirements applying to the making of grants

 

Section 11 requires that any grant made under Part 3 must have regard to any applicable Commonwealth policies and legislation, any guidelines that apply to a granting activity, such as grant program guidelines, applicable grants-specific process requirements and any other relevant matter.

 

The Department must have regard to applicable policies such as the Commonwealth Grant Guidelines (CGGs) which are issued by the Minister for Finance and Deregulation under Regulation 7A of the Financial Management and Accountability Regulations 1997 (FMA Regulations).  The purpose of the CGGs is to establish the policy framework and articulate the Government’s expectations for all departments and agencies (agencies) subject to the Financial Management and Accountability Act 1997 (FMA Act) when performing duties in relation to grants administration.

 

The latest version of the CGGs is the Second Edition which is effective from 1 June 2013.

 

12.  Minister may establish funding priorities

 

Section 12 allows for the Minister to approve and publicly make known, funding priorities for the making of grants in each State.

 

The funding priorities approved by the Minister may include one or more of the following services:

 

-               services that ensure a priority of access to specified populations of people with a disability (for example, people of Aboriginal and Torres Strait Islander descent, people from non-English speaking backgrounds, people with higher support needs, people with aged or frail carers, people in rural or remote areas);

 

-               services for specified geographic regions or localities;

 

-               specified classes of services;

 

-           services that have specified characteristics or meet specified criteria.

 

The funding priorities already provide for specified geographic regions or localities and therefore the reference to each State in section 12 of the current Guidelines is no longer required.  The funding priorities replicate subsection 11(2) of the current Guidelines.

 

13.  Process for determining priorities for making grants for new services

 

Section 13 of these Guidelines requires the Minister to consider the following before approving the funding priorities.  The Minister must:

 

-               consider the results of any consultation with people with a disability, their families and advocates, service providers and interested others to provide the Minister with an indication of appropriate funding priorities for the making of grants;

-               consider the available statistical data on the existing supply of, and need for, disability services;

-           consider the results of any joint planning processes conducted in accordance with the State and Commonwealth bilateral agreement (if any) and the National Disability Agreement.

 

Section 13 replicates the requirement of section 12 of the current Guidelines other than the reference to a particular State.

 


 

14.  Applications for grants to be in writing

 

Section 14 of these Guidelines requires an organisation to apply for a grant of financial assistance by written application to the Department. 

 

Section 14 replicates the requirement of section 16 of the current Guidelines.   

 

15. Assessing applications for grants

 

Section 15 requires that an application for a grant be considered against the available moneys for making grants for new services; having regard to the requirements of the Act, the purpose for which the money was made available and any selection criteria. 

 

16.  Approving applications for grants

 

Section 16 allows for the Minister to approve a grant for a higher or lower amount than applied for in the application.  Examples of factors that the Minister may take into account if approving a higher or lower amount are the corresponding number of places that can be supported by the funding and the capacity and/or business share of an organisation.   

 

17.  Plans to be provided for applications for eligible services

 

Under subparagraph 10(3)(b)(i) of the Act, the Minister must not approve the making of a grant unless the applicant can reasonably be expected to meet the eligibility standards in respect of the provision of the service by the day determined by the Minister which, under subsection 10(4A) of the Act, cannot be more than 12 months later than the day on which the Minister approves the making of the grant.

 

To enable the Minister to determine such a day, section 17 of these Guidelines requires an applicant for a section 10 of the Act grant in respect of an eligible service to provide a sound and practical plan for enabling the applicant to meet, within a reasonable time-frame, the eligibility standards in respect of the provision of the service. The plan must specify the steps to be taken to enable the applicant to meet the standards and the person or persons (by reference to the person’s position in the organisation) who will be responsible for implementing the steps and the target number of days for completing the steps.

 

A note alerts the reader to the provisions of the Act that establish the timeframe for meeting the eligibility standards.

 

Transitional financial assistance for employment services

 

The reference in subsection 17(2) of the current Guidelines to transitional financial assistance for employment services is not needed as the funding for Transitional financial assistance under the Act has expired.

 
18.  Plans to be provided for applications for employment and advocacy services  

 

Under subparagraph 12AD(2)(b)(ii) or 13(2)(b)(ii) of the Act, the Minister must not approve the making of a grant in respect of an employment service or advocacy services unless the applicant has given a notice stating its intention to seek to obtain a certificate of compliance on or before the day determined by the Minister. Under subsection 12AD(4) of the Act, that day cannot be later than 12 months after the day on which the grant is approved. Under subsection 13(3) of the Act, that day cannot be later than 18 months after the day on which the grant is approved. 

 

To enable the Minister to determine the day for obtaining the certificate, section 18 of the Guidelines requires the applicant for the  approval of a grant under section 12AD to provide a sound and practical plan for obtaining, within a reasonable time-frame, a certificate of compliance in respect of the service, that states the progress (if any) made for obtaining the certificate, specifies the steps to be taken for obtaining the certificate, specifies the person or persons (by reference to the person’s position in the organisation) who will be responsible for implementing the steps and indicates the target days for completing the steps (including the target day by which the certificate will be obtained).

 

Notes 1 and 2 to section 18 of these Guidelines give the legislative background.  This condition applies only to the first approval of a grant under this section.  For a subsequent approval to be made, the applicant needs to hold a certificate of compliance in respect of the service for which the grant is sought – paragraph 12AD(3)(b) and 13(5)(b) of the Act refer.

 

Sections 17 and 18 substantially replicate the requirements of the current Guidelines section 17 but include advocacy services as required by subparagraph 13(2)(a)(ii) of the Act  not  covered within the current Guidelines and no longer covers transitional financial assistance for employment services under paragraph  12AB(2)(c) of the Act, as such assistance is no longer available.

 

19.  Giving notice of intention to obtain certificate of compliance

 

Under subparagraphs 12AD(2)(b)(ii) and 13(2)(b)(ii) of the Act relating to approval of employment services and advocacy services, the Minister must not approve the making of a grant unless the notice of intention to obtain a certificate of compliance by the day determined by the Minister has been given (a note at the end of section 19 sets out this legislative background).

 

Section 19 provides that notice of intention to obtain a certificate of compliance must be given to the Department in a form approved by the Secretary for that purpose.

 

Subsection 18(2) of the current Guidelines refers to section 12AB of the Act relating to transitional financial assistance for employment services. This transitional financial assistance has expired so all references to transitional financial assistance are no longer required.

 

20.  Determining and varying the day by which an organisation must obtain certificate of compliance

 

Subsections 21(1) and 21(2) of the current Guidelines refers to section 12AB of the Act relating to transitional financial assistance for employment services.  This assistance has expired so all references to Transitional financial assistance (section 12AB) is no longer required in section 20 of the Guidelines.

 

Subsection 20(1) provides that in making the determination of the day for obtaining a certificate of compliance, or in varying the determination, the Minister may take into account information provided by an applicant in the plan, that is, the progress made by the applicant for obtaining the certificate, the steps to be taken by the organisation for obtaining the certificate and whether the organisation can reasonably be expected to obtain the certificate by the target day stated in the plan, or by an earlier or later day.

 

A note 1 at the end of subsection 20(1) draws the reader’s attention to subsection 12AD(4) of the Act that requires the day specified by the Minister to be not later than 12 months after the day on which the approval of the grant is made.

 

A second note at the end of subsection 20(1) draws the reader’s attention to subsection 13(3) of the Act that requires the day specified by the Minister to be not later than 18 months after the day on which the approval of the grant is made.

 

Subsection 20(2) provides that if the Minister proposes to make or vary a determination fixing a day that is prior to the target day specified by the applicant in the plan, the applicant has to be notified of the proposed day and be invited to make comments for the Minister consideration before the determination or variation.

 

21 Certificate of compliance

 

Subsection 22 in the current Guidelines refers to section 12AB of the Act relating to transitional financial assistance for employment services.  This assistance has expired so all references to Transitional financial assistance (section 12AB) is no longer required.

 

Section 21 provides that for grants approved under sections 12AD and 13 of the Act an organisation receiving a grant is taken to be holding a current certificate of compliance in accordance with subsections 6D(3) and 6DA(3) of the Act, if the accredited certification body has notified the Secretary of the giving of the certificate and the Secretary has not been notified of any revocation of that certificate.

 

22.  Application for varying the day determined by the Minister

 

If an organisation is receiving a grant under section 12AD or 13 of the Act in respect of which the Minister made a determination specifying the day by which the organisation is to obtain a certificate of compliance for the service for which the grant is made, and the organisation is unable to obtain the certificate of compliance by the day determined by the Minister, the organisation would breach the conditions of the grant.

 

If the organisation in that situation wishes to receive any payment of the grant on or after the day determined by the Minister, section 22 of these Guidelines provides that the organisation must apply in writing to the Department for variation of the day determined by the Minister.  The application must contain the reasons for not being able to obtain the certificate by the determined day, and provide a sound and practical plan for obtaining the certificate that states the progress made for obtaining the certificate, specifies the steps to be taken for obtaining the certificate, specifies the person or persons (by reference to the person’s position in the organisation) who will be responsible for implementing the steps, and indicates the target days for completing the steps (including the new target day by which the certificate will be obtained).

 

Note 1 and Note 2 under subsection 22(2) draw attention to the requirement of subsection 12AD(4) and 13(3) of the Act regarding the latest days that can be specified in the determination or variation of the day by which an organisation must obtain certificate of compliance.

 

Part 4 Development of standards, key performance indicators, performance monitoring processes and processes for applying sanctions

 

23.  Determining standards, key performance indicators and processes

 

Section 23 establishes the requirement for the Minister to consult with a range of stakeholders to establish their broad view before the Minister determines the standards, approves key performance indicators for the standards or makes an order under subsection 14F(b) of the Act.  The Minister must ensure that State Governments, an adequate number of people with a disability, their families and advocates, service providers and interested others are consulted.

 


 

Part 5 Miscellaneous

 

24.  Availability of information

 

Section 24 of the Guidelines deals with the provision of certain information relevant to the administration of Part II of the Act based upon requests from the public for that information.  References to certain documents that are stated to be made available upon request from the public in the current Guidelines are no longer required as those documents are now publicly available from the Federal Register of Legislative Instruments and the ComLaw World Wide Web site.

 

A note at the end of section 24 alerts the reader that officers of the Department are required to comply with the Privacy Act 1988.

 

25.  Delegation

 

Section 25 of these Guidelines provides the Secretary with the discretion to delegate to an officer of the Department the Secretary’s powers under paragraph 19(a) to approve the form of a notice of intention to obtain a certificate of compliance.

 

 

 

Statement of Compatibility for a Legislative Instrument that raises Human Rights issues

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

These Guidelines, made under subsection 5(1) of the Disability Services Act 1986 (the Act), are 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.

 

 

Human rights implications

 

The Disability Services Act (Administration of Part II of the Act) Guidelines 2013 aims to promote the human rights of people with disability as their purpose is to provide direction in the administration of the Disability Services Act 1986, the objects of which include assisting persons with disabilities to receive services necessary to enable them to work towards full participation as members of the community.

The Australian Government’s commitment to international human rights relevant to the issue of rights of persons with disability is set out in the Convention on Rights of Persons with Disabilities. 

The Human Rights principles set out in the Convention on Rights of Persons with Disabilities which the Guidelines propound to address are:

§  Respect for the inherent dignity, independence of persons and individual autonomy, including the freedom to make one's own choices;

§  Non-discrimination;

§  Full and effective participation and inclusion in society;

§  Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;

§  Equality of opportunity;

§  Accessibility;

§  Equality between men and women;

§  Active partnerships between services and people with disability, and where appropriate, their families, friends, carers and/or advocates; and

§  Respect for the evolving capacities of children with disability and respect for the right of children with disability to preserve their identities.

 

As such, implementation of the Disability Services (Administration of Part II of the Act) Guidelines 2013 promotes the human rights of persons with disabilities, as set out in the Convention on Rights of Persons with Disabilities.   

 

Conclusion

 

The Legislative Instrument is compatible with human rights because it advances the protection of rights for people with disability.

 

Senator the Hon Mitch Fifield, Assistant Minister for Social Services and Manager of Government Business in the Senate