Federal Register of Legislation - Australian Government

Primary content

Principles as made
This instrument formulates principles and objectives to be furthered and guidelines to be complied with in the administration of the Disability Services Act 1986.
Administered by: Social Services
Registered 10 Jan 2019
Tabling HistoryDate
Tabled HR12-Feb-2019
Tabled Senate12-Feb-2019

EXPLANATORY STATEMENT

 

Issued by the authority of the Minister for Families and Social Services

 

Disability Services Act 1986

 

Disability Services (Principles and Objectives) Instrument 2018

 

Background

Subsection 5(1) of the Disability Services Act 1986 (the Act) provides that the Minister must, by legislative instrument, formulate principles and objectives to be furthered in the administration of the Act.

The Disability Services Act 1986 – Principles and Objectives for the purposes of section 5 instrument was made for the purposes of subsection 5(1) of the Act on 3 June 1987.

The Disability Services (Principles and Objectives) Instrument 2018 (the instrument) repeals and replaces the Disability Services Act 1986 – Principles and Objectives for the purposes of section 5.

Purpose

The Disability Services Act 1986 – Principles and Objectives for the purposes of section 5 was registered on the Federal Register of Legislation on 20 January 2009. In accordance with subsection 50(1) of the Legislation Act 2003, it would be automatically repealed (that is, it would sunset) on 1 April 2019, being the first 1 April on or after the tenth anniversary of the registration of the instrument. The purpose of this instrument is to remake and improve the Disability Services Act 1986 – Principles and Objectives for the purposes of section 5 prior to that instrument sunsetting under the Legislation Act 2003.

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make an instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal such an instrument.

The instrument improves and updates the existing Disability Services Act 1986 – Principles and Objectives for the purposes of section 5 by simplifying the language in its provisions. The changes do not affect the substantive meaning or operation of the provisions.

The instrument is a legislative instrument for the purposes of the Legislation Act 2003.

Commencement

The instrument commences on the day after it is registered.

 

Consultation

The Department of Social Services (the Department) invited comments from disability peak organisations regarding the current instrument. The feedback received was considered in the preparation of the new instrument.

The reference to ‘wellbeing’ at subsection 7(1), along with the references to families and carers of people with disability (also at subsection 7(7)), and participation in social and economic life, further the objectives of the Act and align the new instrument with the Government’s mission to improve the lifetime wellbeing of people in Australia and the goals contained in the National Disability Strategy.

New subsection 7(5) includes religion, cultural or linguistic circumstances, gender identity, sexual orientation or intersex status to update the language used in the former subsection 3(5) to reflect a broader range of intersectional issues affecting people with disability.

New subsections 6(1) and 6(5) reflect current policy objectives that emphasise a person with disability’s right to live a life free from neglect, abuse and exploitation and to choice and control in relation to decisions affecting their lives.

Regulation Impact Statement (RIS)

The Office of Best Practice Regulation (OBPR) has been consulted and have advised a RIS is not required. (OBPR ID: 24497)

Explanation of the provisions

Section 1 states the name of the instrument, being the Disability Services (Principles and Objectives) Instrument 2018.

Section 2 states that the instrument commences the day after it is registered.

Section 3 confirms that the instrument is made under the authority of subsection 5(1) of the Act, which states that the Minister must, by way of legislative instrument, formulate principles and objectives to be furthered and guidelines to be complied with in the administration of the Act.

Section 4 sets out the definitions of expressions used in the instrument.

Section 5 provides that each instrument specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned.

Section 6 sets out the principles that are to be furthered in the administration of the Act.

Section 7 sets out the objectives that are to be furthered in the administration of the Act.

Sections 6 and 7 together form the principles and objectives to be furthered in the administration of the Act, the purposes of section 5 of the Act. 

Section 6 is in substantially the same terms as those contained in section 2 of the Disability Services Act 1986 – Principles and Objectives for the purposes of section 5. Section 7, while in largely the same terms as section 3 of that instrument, contains several updates to modernise the language that was used in the previous instrument, to reflect current drafting practice and policy objectives. Subsection 7(5) updates the language used in former subsection 3(5) to reflect a broader range of intersectional issues affecting people with disability.

Schedule 1—Repeals provides at item 1 that the whole of the Disability Services Act 1986 – Principles and Objectives for the purposes of section 5 is repealed.

 

 


 

Statement of Compatibility with Human Rights

 

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

 

Disability Services (Principles and Objectives) Instrument 2018

 

The 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 Principles and Objectives repeal and replace the Disability Services Act 1986 – Principles and Objectives for the purpose of section 5, which would otherwise sunset on 1 April 2019. The instrument provides a framework to guide in the administration of the Disability Services Act 1986.

 

Human rights implications

 

The Australian Government’s commitment to international human rights relevant to the issue of rights of people with disability is set out in the Convention on the Rights of Persons with Disabilities (CRPD). This instrument promotes the human rights principles set out in the CRPD, as well as rights contained in the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the International Covenant of Economic, Social and Cultural Rights (ICESCR).

 

Specifically, this instrument seeks to support:

 

·         respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons (Article 3 of the CRPD);

·         non-discrimination (Article 3 of the CRPD);

·         full and effective participation and inclusion in society (Article 3 of the CRPD);

·         respect for difference and acceptance of persons with disabilities as part of human diversity and humanity (Article 3 of the CRPD);

·         equality of opportunity (Article 3 of the CRPD);

·         accessibility (Article 3 of the CRPD);

·         equality between men and women (Article 3 of the CRPD);

·         respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities (Article 3 of the CRPD);

·         women and girls with disabilities having measures available to them to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms (Article 6 of the CRPD and Article 11 of the CEDAW);

·         women and girls with disabilities having measures available to them to ensure the full development, advancement and empowerment of women, for the purpose of guaranteeing them the exercise and enjoyment of the human rights and fundamental freedoms set out in the CRPD (Article 6 of the CRPD and Article 11 of the CEDAW);

·         every person with disabilities having a right to respect for their physical and mental integrity on an equal basis with others (Article 17 of the CRPD); and

·         the rights of persons to work, which includes the right of everyone to the opportunity to gain their living by work which they freely choose or accept (Article 6 of the ICESCR), and the rights of persons with disabilities to work on an equal basis with others (Article 27 of the CRPD).

 

Conclusion

 

The instrument protects and promotes the rights of people with disability under the UNCRPD, and is compatible with human rights.

 

The Hon Paul Fletcher MP, Minister for Families and Social Service