Senate

Revised Explanatory Memorandum

(Circulated by the authority of the Minister for Social Services, the Hon Amanda Rishworth MP)

OUTLINE

The Disability Services and Inclusion Bill (Consequential Amendments and Transitional Provisions) Bill 2023 (Bill) will make amendments to existing Commonwealth legislation that are consequential to the repeal of the Disability Services Act 1986 (DS Act) and its replacement by the Disability Services and Inclusion Bill 2023 (DSI Bill).

The Bill also sets out savings provisions and transitional arrangements for the transition period between the repeal of the DS Act and the implementation of the DSI Bill. Critically, grant agreements made under the DS Act will continue to operate under the provisions of the DS Act until they conclude. All new grant agreements and financial arrangements will be made under the DSI Bill.

Schedule 1 to this Bill repeals the DS Act.

Schedule 2 to this Bill makes amendments to Commonwealth legislation to reflect the repeal and replacement of the DS Act. Schedule 2 also provides some limited savings provisions to ensure a smooth transition between the DS Act and the DSI Bill.

Schedule 3 sets out application and saving provisions for the DSI Bill. Part 1 of Schedule 3 deals with preliminary matters, Part 2 deals with the operation of the DSI Bill and Part 3 deals with the operation of the DS Act. Part 3 also allows the Minister to make rules establishing a transitional Code of Conduct (Transitional Code).

All providers of disability supports and services subject to the Schedule 3 savings provisions in this Bill, and providers of certain programs specified in the Financial Framework (Supplementary Powers) Regulations 1997 (FF(SP) Regulations), will be required to comply with the Transitional Code. This means existing providers are subject to the same Code of Conduct requirements as providers funded under the DSI Bill.

FINANCIAL IMPACT STATEMENT

There are no financial impacts to this Bill.

CONSULTATION

Consultation on the Bill was undertaken with relevant Commonwealth stakeholders whose legislation is subject to consequential amendments arising from the DSI Bill. This included the Department of Health and Aged Care, the Attorney-General's Department, the Department of the Treasury, the Department of Veterans' Affairs, and the Department of Employment and Workplace Relations.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The statement of compatibility with human rights appears at the end of this explanatory memorandum.

Notes on Clauses

Abbreviations used in this explanatory memorandum

In this explanatory memorandum, unless the contrary is indicated:

•

Acts Interpretation Act means the Acts Interpretation Act 1901.

•

Bill means the Disability Services and Inclusion (Consequential Amendments and Transitional Provisions) Bill 2023.

•

commencement day means the day the Act commences, which will be a single date to be fixed by proclamation, or 6 months after the Bill receives the Royal Assent if it has not commenced before that time.

•

DES means Disability Employment Services

•

DS Act means the Disability Services Act 1986.

•

DSI Bill means the Disability Services and Inclusion Bill 2023.

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DSP means the Disability Support Pension

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FF(SP) Act means Financial Framework (Supplementary Powers) Act 1997

•

FF(SP) Regulations means the Financial Framework (Supplementary Powers) Regulations 1997

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NDIS means the National Disability Insurance Scheme

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SS Act means the Social Security Act 1991.

•

UNCPRD the United Nations Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006, as amended and in force for Australia from time to time.

Background

When it was originally introduced over three decades ago, the DS Act created a legislative framework for the Australian Government to provide a range of disability services. The DS Act focuses on assisting people with disability to achieve independence, employment and opportunities to integrate into the community. The DS Act also regulates the certification of service providers and specifies standards to adhere to in the delivery of services.

International and Australian disability policy has evolved significantly over the past several decades. Australia's entry into the UNCRPD and the development and implementation of Australia's Disability Strategy 2021-31 as Australia's national disability policy framework have driven greater engagement by, and with, people with disability in determining how they live and are supported.

At the same time, the Australian governments have moved from solely direct service provision to include person-centred market models of service delivery and support, including through the NDIS, which currently supports over 600,000 people with disability.

With more than 1 in 6 people in Australia estimated to have a disability, the DS Act is no longer fit-for-purpose and it is essential to replace it with a complementary, modern and streamlined legislative framework that effectively facilitates funding for supports and services that will assist all people with disability regardless of whether or not they are an NDIS participant.

Contemporary disability programs employ a range of service delivery models that were not envisaged when the DS Act was established. Several of these programs are delivered through alternative financial arrangements such as procurements. Legislative authority for those programs is generally provided by the FF(SP) Regulations. This can cause significant administrative delays in implementing important programs and means that many programs are not subject to any form of quality and safeguarding regulatory oversight.

Repealing the DS Act and replacing it with a modern fit-for-purpose Act offers the most effective means to provide a legislative basis for Commonwealth disability programs outside the NDIS. However, many other Commonwealth Acts make reference to the DS Act. In addition to repealing the DS Act, the Bill also updates the references in these other Acts to ensure that the intent and function of these Acts is preserved as necessary.

Explanation of the clauses

Clause 1 - Short title

1. Clause 1 sets out the short title of this Bill when it becomes law. It specifies that the Act shall be known as the Disability Services and Inclusion (Consequential Amendments and Transitional Provisions) Act 2023.

Clause 2 - Commencement

2. Clause 2 provides that Clauses 1 to 3 will commence on the day the Bill receives Royal Assent. Schedules 1, 2 and 3 will commence at the same time as the Disability Services and Inclusion Act 2023. The DSI Bill commences 28 days after it receives the Royal Assent. If the DSI Bill does not commence, Schedules 1, 2 and 3 will not commence.

Clause 3 - Schedules

3. Clause 3 provides that legislation specified in a Schedule to the Bill is amended to repealed as set out in the applicable items in the relevant Schedule.

Schedule 1 - Repeals

Disability Services Act 1986

Item 1 - The whole of the Act

4. Item 1 repeals the DS Act in its entirely.

5. The DS Act is outdated in both its structure and substance, delivering a fragmented and inconsistent approach to providing legislative authority and mechanisms for the funding of Commonwealth programs for people with disability outside the NDIS. There have been no significant revisions of the Act since its inception.

6. Where the DS Act does not expressly provide for a program, a cautionary approach has meant that authority has progressively been provided for by the FF(SP) Act and FF(SP) Regulations.

7. Retaining the DS Act unchanged would continue this piecemeal approach to authorising and funding, leaving inconsistencies in how programs are managed and how quality and safeguarding requirements are established and monitored.

8. Consideration was given to amending, rather than repealing the DS Act. However, the limitations of the DS Act extend beyond the issues with legislative authority to the outdated language and terminology used. Addressing all of the issues would mean amending virtually every provision in the DS Act - it would be preserved in name only.

9. Repealing the DS Act and introducing the DSI Bill is a more straightforward approach and ensures appropriate scrutiny of the DSI Bill as a whole. It has allowed for public consultation on the objects and principles of the DSI Bill, as well as on the exposure draft of the DSI Bill in full.

10. Replacing the DS Act also ensures that the Government is better able to respond to recommendations of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability and the Review of the NDIS. If the recommendations call for further legislative change, the DSI Bill will form a solid foundation. If the recommendations require new measures, the DSI Bill will provide a single source of legislative authority with consistent statutory requirements for funded providers.

Schedule 2 - Consequential Amendments

11. Schedule 2 makes amendments that are consequential to the repeal of the DS Act and the implementation of the DSI Bill. Amendments are made to the following Commonwealth Acts:

•

Aged Care Act 1997

•

Aged Care Quality and Safety Commission Act 2018

•

Age Discrimination Act 2004

•

Australian Hearing Services Act 1991

•

Child Support (Registration and Collection) Act 1988

•

Freedom of Information Act 1982

•

Hearing Services Administration Act 1997

•

Human Services (Centrelink) Act 1997

•

Human Services (Medicare) Act 1973

•

Income Tax Assessment Act 1997

•

Military Rehabilitation and Compensation Act 2004

•

Safety, Rehabilitation and Compensation (Defence related Claims) Act 1988

•

Social Security Act 1991

•

Veterans' Entitlements Act 1986

Aged Care Act 1997

Item 1 - Subsection 86-3(4) (paragraph (f) of the definition of receiving Commonwealth body )

12. Item 1 amends subsection 86-3(4) of the Aged Care Act by omitting "Disability Services Act 1986", and substituting "Disability Services and Inclusion Act 2023".

13. Section 86-3 of the Aged Care Act allows for the disclosure of protected information (within the meaning of that Act) to certain receiving Commonwealth bodies.

14. The consequence of this amendment will be that protected information under the Aged Care Act can continue to be disclosed to the Department administering the DS Act if the Secretary administering the Aged Care Act believes, on reasonable grounds, that the information will assist in the performance of the functions, or the exercise of the powers, of that Department.

15. This amendment does not create any new information sharing powers, but only maintains existing arrangements.

Aged Care Quality and Safety Commission Act 2018

Item 2 - Subsection 61(3) (paragraph (e) of the definition of receiving Commonwealth body )

16. Item 2 amends subsection 61(3) of the Aged Care Quality and Safety Commission Act by omitting "Disability Services Act 1986", and substituting "Disability Services and Inclusion Act 2023".

17. Subsection 62(3) of the Aged Care Quality and Safety Commission Act relevantly allows for the disclosure of protected information (within the meaning of that Act) to certain receiving Commonwealth bodies.

18. The consequence of the amendment will be that protected information under the Aged Care Quality and Safety Commission Act can continue to be disclosed to the Department administering the DS Act if the Aged Care Commissioner believes, on reasonable grounds, that the information will assist in the performance of the functions or exercise of powers of that Department.

19. This amendment does not create any new information sharing powers, but only maintains existing arrangements.

Age Discrimination Act 2004

Item 3 - Paragraph 41(1)(f)

20. Item 3 repeals paragraph 41(1)(f) of the Age Discrimination Act (which refers to the DS Act) and substitutes '(f) the Disability Services and inclusion Act 2023; or'.

21. Section 41 of the Age Discrimination Act provides that certain actions taken with respect to pensions, allowances, benefits and other things are not unlawful if done in direct compliance with certain Commonwealth legislation.

22. The consequence of the amendment will be that any actions done in direct compliance with the DSI Bill will not be unlawful under the Age Discrimination Act.

Australian Hearing Services Act 1991

Item 4 - Subsection 8(3)

23. Item 4 amends subsection 8(3) of the Australian Hearing Services Act by omitting "any principles, objectives and guidelines formulated under section 5 of the Disability Services Act 1986", and substituting "the objects of the Disability Services and Inclusion Act 2023 and the principles set out in section 4 of that Act".

24. The effect of the amendment will be that subsection 8(3) of Australian Hearing Services Act will provide that the Authority (being Hearing Australia) must, so far as is practicable, perform its functions in a manner consistent with the objects of the Disability Services and Inclusion Act 2023 and the principles set out in section 4 of that Act.

Child Support (Registration and Collection) Act 1988

Item 5 - Subsection 16AB(3) (paragraph (f) of the definition of designated program Act )

25. Item 5 repeals paragraph 16AB(3)(f) of the Child Support (Registration and Collection) Act (which refers to the DS Act) and substitutes: "(f) the Disability Services and Inclusion Act 2023; or".

26. Section 16AB of the Child Support (Registration and Collection) Act sets out how secrecy laws apply where Services Australia holds particular customer information, and two or more statutory secrecy regimes apply to the use or disclosure of that information by Services Australia.

27. The effect of section 16AB is that where Services Australia holds the same piece of information about a particular person under two or more programs that have secrecy regimes (such as child support and DES), Services Australia is able to use and disclose that information if it complies with one of the secrecy regimes. Services Australia may disregard the fact the information is subject to a different regulatory regime under any other designated program Act.

28. Section 16AB applies to secrecy regimes in "designated program Acts". The consequence of this amendment is that the DSI Bill will be one of these designated program Acts.

29. This amendment does not create any new information sharing powers, but only maintains existing arrangements.

Freedom of Information Act 1982

Item 6 - Schedule 3

30. This item amends Schedule 3 of the Freedom of Information Act by omitting "Disability Services Act 1986, subsections 28(2) and (6)" and substituting "Disability Services and Inclusion Act 2023, section 28".

31. Schedule 3 of the Freedom of Information Act lists Commonwealth secrecy provisions for the purposes of section 38 of that Act. Section 38 provides that a document may be exempt from disclosure under the Freedom of Information Act if disclosure of the document is prohibited under a provision of a Commonwealth law listed in Schedule 3.

32. Clause 28 of the DSI Bill sets out the consequences for the unauthorised use or disclosure of protected information under the DSI Bill. Similarly to the DS Act, it is an offence for a person who has obtained protected information in the course of performing functions or duties, or exercising powers, under the DSI Bill to disclose or use that information in an unauthorised manner.

33. This item does not create a new exemption, but only ensures that the existing arrangements continue to apply by maintaining existing arrangements. It does not create any new information.

Hearing Services Administration Act 1997

Item 7 - Paragraph 5(2)(g)

34. This item amends paragraph 5(2)(g) to omit "the provision of a service under a rehabilitation program under Part III of the DS Act" and substitute "the provision of an employment service under Part II of, or the provision of a service under a rehabilitation program under Part III of, the former DS Act".

35. Section 5 of the Hearing Services Administration Act provides the definition of 'eligible persons' for the purposes of that Act. The Minister administering that Act may determine that eligible persons in a particular class of persons are participants in the voucher system (also known as the Hearing Services Program voucher scheme).

36. The Hearing Services Program funds services to provide comprehensive hearing assessments and rehabilitation, annual reviews, advice, monitoring, support and access to hearing devices. Eligible persons fitted with a hearing device can also access subsidised maintenance.

37. The consequence of the amendment is that a person referred to the Minister in connection with the provision of a service under an employment services under Part II or rehabilitation program under Part III of the former DS Act may continue to be an eligible person while receiving those services, if they meet other relevant criteria.

38. Subsection 5(3) of the Hearing Services Administration Act allows the Minister administering that Act, by legislative instrument, to determine that a specified person is an eligible person for the purposes of that Act. This ensures that a legislative instrument can be made to capture people participating in a program under the DSI Bill in the future if necessary.

Human Services (Centrelink) Act 1997

Item 8 - Subsection 40A(3) (paragraph (f) of the definition of designated program Act )

39. Item 8 repeals paragraph 40A(3)(f) of the Human Services (Centrelink) Act (which refers to the DS Act) and substitutes "(f) the Disability Services and Inclusion Act 2023; or".

40. Section 40B of the Human Services (Centrelink) Act sets out how secrecy laws apply where Services Australia holds particular customer information, and two or more legislative secrecy regimes apply to the use or disclosure of that information by Services Australia.

41. The effect of section 40A is that where Services Australia holds the same piece of information about a particular person under two or more programs that have secrecy regimes (such as social security and Medicare), Services Australia is able to use and disclose that information if it complies with one of the secrecy regimes. Services Australia may disregard the fact the information is subject to a regulatory regime under any other designated program Act.

42. Section 40A applies to secrecy regimes in "designated program Acts". The consequence of this amendment is that the DSI Bill will be one of these designated program Acts.

43. This amendment does not create any new information sharing powers, but only maintains existing arrangements.

Human Services (Medicare) Act 1973

Item 9 - Subsection 43A(3) (paragraph (f) of the definition of designated program Act )

44. Item 9 repeals paragraph 43A(3)(f) of the Human Services (Medicare) Act (which refers to the DS Act), and substitutes "(f) the Disability Services and Inclusion Act 2023; or"

45. Section 43A of the Human Services (Medicare) Act sets out how secrecy laws apply where Services Australia holds particular customer information, and two or more different secrecy regimes apply to the use or disclosure of that information by Services Australia.

46. The effect of section 43A is that where Services Australia holds the same piece of information about a particular person under two or more programs that have legislative secrecy regimes (such as DES and Medicare), Services Australia is able to use and disclose that information if it complies with one of the secrecy regimes. Services Australia may disregard the fact the information is subject to a regulatory regime under any other designated program Act.

47. Section 43A applies to secrecy regimes in "designated program Acts". The consequence of this amendment is that the DSI Bill will be one of these designated program Acts.

48. This amendment does not create any new information sharing powers, but only maintains existing arrangements.

Income Tax Assessment Act 1997

Item 10 - Section 53-10 (table item 2)

49. This item amends section 53-10 of the Income Tax Assessment Act by inserting "former" after "Part III" so that the section refers to Part III of the former DS Act.

50. Division 53 of the Income Tax Assessment Act sets out certain payments that are exempt from income tax. Section 53-10 currently provides that a disability services payment provided under Part III of the DS Act is an exempt payment.

51. This ensures that any payments made under the DS Act will continue to be income tax exempt.

Military Rehabilitation and Compensation Act 2004

Item 11 - Subsection 409(5) (paragraph (f) of the definition of receiving Commonwealth body )

52. Item 11 amends subsection 409(5) of the Military Rehabilitation and Compensation Act by omitting "Disability Services Act 1986" and substituting "Disability Services and Inclusion Act 2023".

53. Section 409 of the Military Rehabilitation and Compensation Act 2004 provides for the definition of 'receiving Commonwealth body'. The definition allows for sharing of information with certain Commonwealth bodies for a purpose relating to the exercise of a power or performance of a function of those bodies, including bodies that have functions and powers relating to the care and support sector (such as a regulatory or oversight role).

54. Paragraph 409(5)(f) currently provides that a receiving Commonwealth body includes the Department administered by the Minister administering the DS Act. The amendment made by item 11 replaces the reference to the DS Act with a reference to the DSI Bill, thereby ensuring that paragraph 409(5)(f) continues to allow for the sharing of information with the Department of Social Services (being the Department of the Minister administering the DSI Bill).

55. This amendment does not create any new information sharing powers, but only maintains existing arrangements.

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

Item 12 - Subsection 151A(4) (paragraph (f) of the definition of receiving Commonwealth body )

56. Item 12 amends subsection 151A(4) of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act by omitting "Disability Services Act 1986", and substituting "Disability Services and Inclusion Act 2023".

57. Subsection 151(4) of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act provides for the definition of a 'receiving Commonwealth body'. The definition allows for sharing of information with certain Commonwealth bodies for a purpose relating to the exercise of a power or performance of a function of those bodies, including bodies that have functions and powers relating to the care and support sector (such as a regulatory or oversight role).

58. Paragraph 151A(4)(f) currently provides that a receiving Commonwealth body includes the Department administered by the Minister administering the DS Act. The amendment made by item 12 replaces the reference to the DS Act with a reference to the DSI Bill, thereby ensuring that paragraph 151A(4)(f) continues to allow for the sharing of information with the Department of Social Services (being the Department of the Minister administering the DSI Bill).

59. This amendment does not create any new information sharing powers, but only maintains existing arrangements.

Social Security Act 1991

Items 13 to 15 - Amendments to paragraph 8(8)(f)

60. Subsection 8(8) of the SS Act deals with excluded amounts for the purposes of income test definitions. Paragraph 8(8)(f) currently provides that a payment under Part III of the Disability Services Act 1986 or the value of any rehabilitation program (including any follow-up program) provided under that Part is an excluded amount.

61. Item 13 amends paragraph 8(8)(f) of the SS Act by inserting "former" after "Part III" so that the paragraph refers to Part III of the former DS Act. The amendment made by this item reflects the fact that the DS Act will no longer be in operation and that 'payments' will not be provided under the DSI Bill. It will ensure that part payments under the DS Act are still exempt payments.

62. Item 14 inserts new paragraph 8(8)(fa) which will provide that a payment is an excluded amount if it is the value of supports or services that are specified in an instrument under subsection (8AAAB) and are provided under an arrangement or grant under the DSI Bill. Item 15 inserts new subsection 8(8AAAB) that will provide that the Secretary may, by legislative instrument, specify supports or services for the purposes of paragraph (8)(fa). The supports or services must be employment supports or services within the meaning of the DS Act.

63. Although the value of supports is not currently relevant to the income test, this will allow the Secretary to specify an exemption in the future if necessary and appropriate.

Items 16 to 19 - Section 23 - Dictionary

64. Items 16 to 19 make amendments to section 23 of the SS Act. Section 23 provides for general definitions for the purposes of the SS Act. The amendments made by these items will ensure that eligibility for the Disability Support Pension (DSP), mobility allowance and participation exemptions will not be affected by the repeal of the DS Act.

65. Item 16 amends subsection 23(1) (paragraph (b) of the definition of program of assistance) by inserting "former" so that the definition refers to the former DS Act.

66. The definition of program of assistance currently is (a) a program approved under section 28A of the SS Act or (b) a program offered as part of the competitive employment training and placement services as defined by section 7 of the DS Act.

67. The amendment made by this item will ensure that the repeal of the DS Act will not affect a person's eligibility for the Disability Support Pension where that person is participating in a program offered as part of the competitive employment training and placement services as defined by section 7 of the DS Act (noting that some programs will continue to operate under the DS Act until existing grant agreements come to an end).

68. Item 17 amends subsection 23(1) (paragraph (a) of the definition of rehabilitation program) by inserting "former" so that the definition refers to the former DS Act.

69. The definition of a rehabilitation program is currently (a) a rehabilitation program under Part III of the DS Act; or (b) a follow-up program in relation to which a determination by the Secretary under section 31 is in force.

70. The amendment made by this item will ensure that the repeal of the DS Act will not affect a person's eligibility for the Disability Support Pension or mobility allowance where that person is participating in a rehabilitation program under Part III of the DS Act (noting that some programs will continue to operate under the DS Act until existing grant agreements come to an end).

71. Items 18 and 19 together amend the definition of "severely disabled" to ensure that individuals do not lose eligibility for DSP. Subsection 23(4B) provides a definition of "severely disabled". Currently, one of the criteria for this definition is that a person is unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program (which is a program provided under Part III of the DS Act).

72. Item 18 amends subparagraph 23(4B)(a)(ii) of the SS Act to insert "or from the provision of supports or services specified in an instrument under subsection (4BA) and provided under an arrangement or grant under the DSI Bill" after "rehabilitation program".

73. Item 19 inserts new subsection 23(4BA), which will allow the Secretary, by legislative instrument, to specify supports or services for the purposes of subparagraph (4B)(a)(ii). Those supports or services must be employment supports or services within the meaning of the DSI Bill.

74. Currently, employment services for people with disability are provided under the DS Act. In the future, new or altered programs will be provided under the DSI Bill. The new instrument making power in subsection 23(4BA) allows the Secretary to specify certain employment supports or services under the DSI Bill to ensure that affected people with disability do not loose eligibility for DSP once employment services for people with disability are provided under the DSI Bill.

Item 20 - Paragraph 31(a)

75. This item amends paragraph 31(a) of the SS Act by inserting "former" after "Part III" so that it refers to the former DS Act.

76. Section 31 deals with the approval of follow-up rehabilitation programs. The amendment will allow the Secretary to determine that a 'follow-up' program under Part III of the former DS Act is a follow-up program for the purposes of the SS Act. The allows the Secretary to determine follow up programs until rehabilitation programs under the DS Act cease to be provided.

Item 21 - Paragraph 33(1)(a)

77. Section 33 of the SS Act deals with the approval of 'sheltered employment'. This item amends paragraph 33(1)(a) by inserting "former" after "administering the" so that the paragraph refers to the Minister administering the former DS Act.

Items 22 - Amendments to section 94E

78. Section 94E of the SS Act provides for a participation exemption for the purposes of qualification for the disability support pension where a person participates in supported employment.

79. Item 22 repeals and replaces subsection 94E(2) and inserts subsection 94E(3). It currently provides that a person is covered by a participation exemption for a period if the person is, throughout the period, in employment that is supported by supported employment services within the meaning of section 7 of the DS Act.

80. Proposed new subsection 94E(2) will provide that a person is covered by a participation exemption for a period if the person is throughout the period in employment that is supported by employment services within the meaning of section 7 of the former DS Act or in employment that are supports or services specified in an instrument under subsection (3) and are provided under an arrangement or grant under the DSI Bill.

81. Proposed new subsection 94E(3) provides that the Secretary may, by legislative instrument, specify supports or services for the purposes of paragraph (2)(b). The supports or services must be employment supports or services within the meaning of the DSI Bill.

82. Currently, employment services for people with disability are provided under the DS Act. In the future, new or altered programs will be provided under the DSI Bill. The new instrument making power in new subsection 94E(3) will allow the Secretary to specify certain employment supports or services to ensure that affected people with disability do not cease to qualify for a participation exemption once relevant employment services for people with disability are provided under the DSI Bill.

Items 23 to 33 - Amendments to section 1035

83. Section 1035 of the SS Act deals with the qualification for mobility allowance (rate specified in subsection 1044(1)). Subsection 1035(1) provides that a person qualifies for mobility allowance if they satisfy the travel test in subsection (2) and meet the criteria in one of the paragraphs in subsection (1).

84. Item 23 amends subparagraph 1035(1)(h)(ii). Paragraph 1035(1)(h) sets out 4 criteria that may make a person eligible for mobility allowance. One of these is that the person is undertaking a vocational rehabilitation program (which are currently provided under Part III of the DS Act). This item inserts the words "or the person is being provided with supports or services specified in an instrument under subsection (2A) and are provided under an arrangement or grant under the DSI Bill" at the end of that paragraph. Item 31 provides an explanation of new subsection 1035(2A).

85. Items 24 to 30 deal with the travel test under section 1035.

86. Item 24 omits the word "undertaking" from subsection 1035(2). Items 25 to 29 amend the paragraphs of subsection 1035(2) to insert the word "undertaking" at the beginning of the paragraphs. Item 30 inserts additional language at the end of paragraph 1035(2)(e).

87. As a consequence of these items, subsection 1035(2) will provide that a person satisfies the travel test mentioned in subsection (1) if the person is required to travel to and from the person's home for the purpose of:

a)

undertaking gainful employment

b)

undertaking vocational training

c)

undertaking job search activities

d)

undertaking voluntary work

e)

undertaking a vocational rehabilitation program or being provided with supports or services specified in an instrument under subsection (2A) and are provided under an arrangement or grant under the DSI Bill.

88. Item 31 inserts new subsection 1035(2A), which provides that the Secretary may, by legislative instrument, specify supports or services for the purposes of subparagraph (1)(h)(ii) or paragraph (2)(e). The supports or services must be employment supports or services within the meaning of the DSI Bill.

89. Currently, employment services for people with disability, such as vocational rehabilitation services, are provided under the DS Act. In the future, new or altered programs will be provided under the DSI Bill. The instrument making power in new subsection 1035(2A) will allow the Secretary to specify employment supports or services to ensure that affected people with disability do not cease to qualify for the mobility allowance once relevant employment services are provided under the DSI Bill.

90. Item 32 amends the definition of vocational rehabilitation program in subsection 1035(3) of the SS Act by inserting "former" after "of the" so that the subsection refers to the former DS Act.

91. Subsection 1035(3) currently provides that a "vocational rehabilitation program" means a rehabilitation program (or follow-up program) under Part III of DS Act that provides a person with assistance to obtain or retain unsupported paid employment. The amendment made by item 32 will ensure that the definition of vocational rehabilitation program continues to operate once the DS Act is repealed.

92. Item 33 amends the definition of vocational training in subsection 1035(3) of the SS Act.

93. Subsection 1035(3), currently provides that "vocational training" means vocational training within the meaning of section 19 (other than training provided as part of a rehabilitation program or follow-up program under Part III of the DS Act).

94. This item repeals that definition and provides that vocational training means training within the meaning of section 19, other than training provided as (a) part of a rehabilitation program or follow-up program under Part III of the former DS Act; or (b) part of supports or services that are covered by an instrument in force under subsection (2A) of this section and are provided under an arrangement or grant under the DSI Bill.

95. This amendment will ensure that the definition of vocational training continues to operate once the DS Act is repealed, and will be able to apply once employment programs are provided under the DSI Bill.

Items 34 to 38 - Amendments to section 1035A

96. Section 1035A of the SS Act deals with the qualification for mobility allowance (rate specified in subsection 1044(1A)). Subsection 1035A(1) provides that a person is qualified for mobility allowance at the rate specified in subsection 1044(1A) if, among other things, the person satisfies one or more of subsections (2) to (9).

97. Subsection 1035A(8) deals with people who are in receipt of jobseeker payment, youth allowance, DSP or parenting payment. It sets out 4 criteria that a person must meet to satisfy that subsection. One of these is that relevant work is not performed by the person in the course of employment that is supported by supported employment services within the meaning of section 7 of the DS Act.

98. Item 34 amends paragraph 1035A(8)(c) by inserting "former" after "of the", so that the paragraph refers to the former DS Act. This ensures that the paragraph continues to apply to affected individuals once the DS Act is repealed.

99. Item 35 inserts a new paragraph 1035A(8)(ca). This new paragraph provides an additional criteria for a person to meet the requirements of subsection 1035A(8), specifically that relevant work is not performed by the person in the course of employment that are supported by supports or services specified in an instrument under subsection (10) and are provided under an arrangement or grant under the DSI Bill. Item 38 provides an explanation of subsection 1035A(10).

100. Subsection 1035A(9) deals with people were in receipt of jobseeker payment, youth allowance, DSP or parenting payment immediately before a relevant time. It sets out 7 criteria that a person must meet to satisfy that subsection. One of these is that relevant work has not been performed by the person in the course of employment that is or was supported by supported employment services within the meaning of section 7 of the DS Act.

101. Item 36 amends paragraph 1035A(9)(e) of the SS Act by inserting "former" after "of the", so that the paragraph refers to the former DS Act. This ensures that the paragraph continues to apply to affected individuals once the DS Act is repealed

102. Item 37 inserts a new paragraph 1035A(9)(ea). This new paragraph provides an additional criteria for a person to meet the requirements of subsection 1035A(9), specifically that relevant work has not been performed by the person in the course of employment that are supported by supports or services specified in an instrument under subsection (10) and are provided under an arrangement or grant under the DSI Bill. Item 38 provides an explanation of subsection 1035A(10).

103. Item 38 inserts new subsection 1035A(10) which provides that the Secretary may, by legislative instrument, specify supports or services for the purposes of paragraphs (8)(ca) or (9)(ea). The supports or services must be employment supports or services within the meaning of the DSI Bill.

104. Currently, employment services for people with disability, such as vocational rehabilitation services, are provided under the DS Act. In the future, new or altered programs will be provided under the DSI Bill. The instrument making power in new subsection 1035A(10) will allow the Secretary to specify employment supports or services to ensure that affected people with disability do not cease to qualify for the mobility allowance once relevant employment services are provided under the DSI Bill.

Items 39 to 42 - Amendments to section 1046

105. Section 1046 of the SS Act deals with the continuation of mobility allowance when a person ceases to be qualified. If a person meets the criteria in one of subsections 1046(1) to 1046(2B) then they continue to be qualified for the mobility allowance for 12 weeks after the person would otherwise have ceased to be qualified.

106. Item 39 amends subparagraph 1046(2)(b)(vi). Paragraph 1046(2)(b) sets out 4 criteria that may allow a person to continue to be qualified for mobility allowance.

107. Subparagraph 1046(2)(b)(vi) provides one of these, which is that the person ceases to undertake a vocational rehabilitation program (which is currently provided under Part III of the DS Act). This item inserts the words "or the person is being provided with supports or services that are specified in an instrument under subsection (2AA) and are provided under an arrangement or grant under the DSI Bill" at the end of that paragraph. Item 40 provides an explanation of new subsection 1046(2AA).

108. Item 40 inserts new subsection 1046(2AA) which provides that the Secretary may, by legislative instrument, specify supports or services for the purposes of subparagraph (2)(b)(vi). The supports or services must be employment supports or services within the meaning of the DSI Bill.

109. Currently, employment programs for people with disability, such as a vocational rehabilitation program, are provided under the DS Act. In the future, new or altered programs will be provided under the DSI Bill. The instrument making power in new subsection 1046(2AA) will allow the Secretary to specify employment supports or services to ensure that affected people with disability do not cease to qualify for the mobility allowance once relevant employment programs are provided under the DSI Bill.

110. Item 41 amends the definition of vocational rehabilitation program in subsection 1046(6) of the SS Act by inserting "former" after "of the" so that the subsection refers to the former DS Act.

111. Subsection 1046(6) currently provides that "vocational rehabilitation program", means a rehabilitation program (or follow-up program) under Part III of DS Act that provides a person with assistance to obtain or retain unsupported paid employment. The amendment made by item 41 will ensure that the definition of vocational rehabilitation program continues to operate once the DS Act is repealed.

112. Item 42 amends the definition of vocational training in subsection 1046(6) of the SS Act.

113. Subsection 1046(6) currently provides that "vocational training", means vocational training within the meaning of section 19 (other than vocational training provided as part of a rehabilitation program or follow-up program under Part III of the DS Act).

114. This item repeals that definition and provides that vocational training means training within the meaning of section 19, other than training provided as (a) part of a rehabilitation program or follow-up program under Part III of the former DS Act; or (b) part of supports or services that are covered by an instrument in force under subsection (2AA) of this section and are provided under an arrangement or grant under the DSI Bill.

115. This amendment will ensure that the definition of vocational training continues to operate once the DS Act is repealed, and will be able to apply once employment programs are provided under the DSI Bill.

Veterans' Entitlements Act 1986

Item 43 - Paragraph 5H(8)(m)

116. Item 43 amends paragraph 5H(8)(m) of the Veterans' Entitlements Act by inserting "former" after "Part III" so that the paragraph refers to Part III of the former DS Act.

117. Subsection 5H(8) of the Veterans' Entitlements Act deals with excluded amounts for the purposes of income test definitions. Paragraph 5H(8)(m) currently provides that a payment under Part III of the Disability Services Act 1986 or the value of any rehabilitation program (including any follow-up program) provided under that Part is an excluded amount.

118. The amendment made by this item reflects the fact that the DS Act will no longer be in operation and that 'payments' will not be provided under the DSI Bill. It will ensure that part payments under the DS Act are still exempt payments.

Item 44 - After paragraph 5H(8)(m)

119. Item 44 inserts new paragraph 5H(8)(maa), which will provide that the value of supports or services that are specified in an instrument under subsection 8(8AAAB) of the SS Act and are provided under an arrangement or grant under the DS Act is an excluded amount for the purposes of the income test.

120. Although the value of supports is not currently relevant to the income test, this will allow for an exclusion in the future if necessary and appropriate. Relying on an instrument made under the SS Act provides administrative ease so that only one instrument needs to be made.

Item 45 - Section 131 (paragraph (g) of the definition of receiving Commonwealth body )

121. Item 45 amends paragraph 131(g) of the Veterans' Entitlements Act by omitting "Disability Services Act 1986", substitute "Disability Services and Inclusion Act 2023".

122. Section 131 of the Veterans' Entitlements Act provides definitions for the purposes of the secrecy provisions applicable to pensions and related matters, including a definition of 'receiving Commonwealth body for the purposes of subsection 130(2) of the Veterans' Entitlements Act.

123. Subsection 130(2) allows for information to be shared with certain Commonwealth bodies for a purpose relating to the exercise of a power or performance of a function of those bodies. This facilitates greater information sharing between bodies that have functions and powers relating to the care and support sector (including a regulatory or oversight role).

124. The consequence of the amendment made by Item 45 will be that the department administering the DSI Bill will be a 'receiving Commonwealth body' for the purposes of subsection 130(2) of the Veterans' Entitlements Act. This will allow for the continued sharing of information with the Department of Social Services (or the Department of the Minister administering the DSI Bill).

125. This amendment does not create any new information sharing powers, but only maintains existing arrangements.

Item 46 - Savings provisions

126. Sub-item (1) provides that paragraph 41(1)(f) of the Age Discrimination Act 2004, as in force immediately before the commencement of this item, continues to apply on and after that commencement in relation to anything done by a person in direct compliance with the Disability Services Act 1986 (as its application is continued by Schedule 3 to this Act).

127. Sub-item (2) provides that section 16AB of the Child Support (Registration and Collection) Act 1988 applies on and after the commencement of this item as if a reference in paragraph (f) of the definition of designated program Act in subsection 16AB(3) of that Act to the Disability Services and Inclusion Act 2023 included a reference to the former DS Act.

128. Sub-item (3) provides that section 38 of the Freedom of Information Act 1982, and Schedule 3 to that Act, apply on and after the commencement of this item as if a reference in that Schedule to section 28 of the Disability Services and Inclusion Act 2023 included a reference to subsections 28(2) and (6) of the former DS Act.

129. Sub-item (4) provides that section 40A of the Human Services (Centrelink) Act 1997 applies on and after the commencement of this item as if a reference in paragraph (f) of the definition of designated program Act in subsection 40A(3) of that Act to the Disability Services and Inclusion Act 2023 included a reference to the former DS Act

130. Sub-item (5) provides that section 43A of the Human Services (Medicare) Act 1973 applies on and after the commencement of this item as if a reference in paragraph (f) of the definition of designated program Act in subsection 43A(3) of that Act to the Disability Services and Inclusion Act 2023 included a reference to the former DS Act.

Schedule 3 - Application and Saving Provisions

Part 1 - Preliminary

Item 1 - Definitions

131. Item 1 provides for the following definitions in for the purposes of Schedule 3:

132. commencement day means the day the new Act commences

133. new Act means Disability Services and Inclusion Act 2023

Item 2 - Section 7 of the Acts Interpretation Act 1901

134. Item 2 provides that this Schedule does not limit the effect of section 7 of the Acts Interpretation Act as it applies in relation to the repeals and amendments made by this Act.

135. Section 7 of the Acts Interpretation Act provides that the repeal of an amending Act does not affect the operation of any amendments already made by that Act. This means that the repeal of the DS Act by this Bill does not affect the operation of any amendments made by the new Act as a result of section 7 of the Acts Interpretation Acts.

Part 2 - Operation of new Act

Item 3 - Application provision - funding arrangements and grants

136. Item 3 provides that the DSI Bill applies in relation to arrangements, and grants of financial assistance, made under Part 2 of the new Act on or after the commencement day.

137. The effect of this item is to make clear that the new Act does not apply in relation to (and cannot be used to vary or administer) arrangements or grants of financial assistance made under the former DS Act, section 32B of the Financial Framework (Supplementary Powers) Act 1997 or any other law of the Commonwealth.

Part 3 - Operation of old Act

138. The DSI Bill will provide legislative authority for new spending on disability related programs outside the National Disability Insurance Scheme (NDIS). Arrangements and grants made under the DSI Bill will be supported by appropriate quality safeguards such a Code of Conduct and certification standards.

139. The provisions of the DS Act will continue to apply to all grants that are currently in existence, rather than immediately transfer to the new arrangements. Transition to new arrangements will occur when existing grant agreements end. This will allow for a smooth transition people with disability and people providing supports and services.

140. To facilitate this, provisions of the DS Act will need to continue to operate with respect to existing grants agreements until those agreements come to an end.

Item 4 - Saving provisions - grants of financial assistance and agreements

141. Sub-item (1) provides that despite the repeal of the DS Act made by Schedule 1, Part II of that Act, as in force immediately before the commencement day, continues to apply on and after that day in relation to the following:

a)

approvals of the making of grants of financial assistance (including transitional grants), where the approvals were made under Part II of that Act before that day;

b)

grants of financial assistance (including transitional grants), made under that Act before, on or after that day in connection with such approvals;

c)

agreements entered into under Division 4 of Part II of that Act before, on or after that day in connection with such approvals.

142. There is a note on sub-item (1). The note explains the effect of this sub-item. It makes clear that grants of financial assistance made under Part II of the old Act (i.e. the DS Act) before, on or after the commencement day, in connection with such approvals, can continue to be administered under that Act on and after that day

143. Sub-item (2) provides that an instrument in force for the purposes of paragraph (h) of the definition of research or development activity in section 7 of the DS Act immediately before the commencement day continues in force on and after that day in relation to the continued application of Part II of that Act on and after that day. There are no instruments currently in force under paragraph (h) of the definition of research or development activity.

144. Sub-item (3) provides that an instrument in force under section 9, 9A or 9B of the DS Act immediately before the commencement day continues in force on and after that day in relation to the continued application of Part II of that Act on and after that day. There are no instruments currently in force under section 9, 9A or 9B of the DS Act.

Item 5 - Saving provision - principles, objectives, guidelines and standards

145. Item 5 provides that instrument in force under section 5 or 5A of the DS Act immediately before the commencement day continues in force on and after that day in relation to the continued application of Parts II and III of that Act on and after that day.

146. In total, there are 5 instruments that are currently in force under section 5 or 5A of the DS Act.

147. The three instruments currently in force under section 5 include:

a)

Disability Services (Principles and Objectives) Instrument 2018;

b)

Disability Services (Rehabilitation Services) Guidelines 2017; and

c)

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

148. The two instruments currently in force under subsection 5A include:

a)

the Disability Services (Eligible Service Standards) Determination 2020; and

b)

Disability Services Act (National Standards for Disability Services) Determination 2014.

149. The effect of this item is that the above-mentioned instruments continue to be in force on and after the commencement day in relation to the continued application of Parts II and III of the DS Act.

Item 6 - Savings provisions - accreditation and certificates of compliance

150. Sub-item (1) provides that an approval in force under section 6B of the DS Act immediately before the commencement day continues in force on and after that day in relation to the continued application of Parts II and III of that Act on and after that day. The effect of sub-item (1) is that accrediting authorities that are approved by the Secretary under section 6B of the DS Act immediately before the commencement day continues to be in force on and after the commencement day in relation to the continued application of Parts II and III of the DS Act.

151. Sub-item (2) further provides that an accreditation in force under Part IA of the DS Act immediately before the commencement day continues in force on and after that day in relation to the continued application of Parts II and III of that Act on and after that day.

152. Sub-item (3) provides that sections 6D, 6DA and 6E of the DS Act, as in force immediately before the commencement day, continue to apply on and after that day in relation to the continued application of Parts II and III of that Act on and after that day

Item 7 - Savings provisions - Disability Standards Review Panels

153. Sub-item (1) provides that Disability Standards Review Panel for a State or Territory that was established under section 14B of the DS Act before the commencement day and that was in existence immediately before that day continues in existence on and after that day in relation to grants of financial assistance (including transitional grants) made under the DS Act before, on or after that day.

154. Sub-item (2) provides that instrument in force under section 14F of the DS Act immediately before the commencement day continues in force on and after that day in relation to the continued application of Part II of that Act on and after that day. There are no instruments currently in force under section 14F of that Act.

155. Sub-item (3) provides that Divisions 3A and 3B of Part II of the DS Act, as in force immediately before the commencement day, continue to apply on and after that day in relation to the following:

(a)

a Disability Standards Review Panel for a State or Territory continued in existence by this item;

(b)

an instrument in force under section 14F of that Act immediately before that day.

Item 8 - Savings Provisions - Provision of Rehabilitation Services by the Commonwealth

156. Sub-item (1) provides that despite the repeal of the DS Act made by Schedule 1, Part III of that Act, as in force immediately before the commencement day, continues to apply on and after that day in relation to measures taken, or arrangements entered into, under section 20 of that Act before that day to provide rehabilitation programs or follow-up programs.

157. The note on sub-item (1) provides that the effect of this sub-item is to make clear that those measures or arrangements can continue to have effect on and after the commencement day.

158. Sub-item (2) provides that an instrument in force under subsection 24(2) of the DS Act immediately before the commencement day continues in force on and after that day in relation to the continued application of Part III of that Act on and after that day. There are no instruments currently in force under subsection 24(2) of that Act.

159. Sub-item (3) deals with section 25 of the DS Act relating to the treatment of arrangements for provision of rehabilitation programs. This sub-item provides that section 25 of the DS Act, as in force immediately before the commencement day, continues to apply on and after that day in relation to an arrangement entered into before, on or after that day in relation to the continued application of Part III of that Act on and after that day.

160. Sub-item (4) deals with section 26 of the DS Act relating to the review of decisions under Part III. This sub-item provides that section 26 of the DS Act, as in force immediately before the commencement day, continues to apply on and after that day in relation to a decision made under Part III of that Act before, on or after that day.

161. Sub-item (5) deals with section 27 of the DS Act relating to the power to obtain information etc. This sub-item provides that section 27 of the DS Act, as in force immediately before the commencement day, continues to apply on and after that day in relation to a notice served on a person before, on or after that day in relation to the continued application of Part III of that Act on and after that day.

162. Sub-item (6) deals with section 28 of the DS Act relating to secrecy provisions. This sub-item provides that section 28 of the DS Act, as in force immediately before the commencement day, continues to apply on and after that day in relation to the making of a record of information, or the divulging of information, before, on or after that day that is with respect to the affairs of a person acquired in the performance of duties or exercise of powers under Part III of that Act before, on or after that day.

Item 9 - Saving Provision - Delegations

163. Item 9 provides that an instrument in force under section 33 or 34 of the DS Act immediately before the commencement day continues in force on and after that day in relation to the continued application of Parts II and III of that Act on and after that day.

Item 10 - Transitional Rules

164. Sub-item (1) provides that the Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to:

(a)

the enactment of the Disability Services and Inclusion Act 2023; or

(b)

the amendments or repeals made by Schedule 1 or 2.

165. To avoid doubt on sub-item (1), the the rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(c) impose a tax;

(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

(e) directly amend the text of this Act.

166. Items 4 to 9 of this Part do not limit the rules that may be made for the purposes of sub-item (1) of this item.

167. The effect of item 10 is to address any ad hoc issues that may arise in moving from the old Act to the new Act.

Item 11 - Transitional code of conduct

168. Sub-item 11(1) provides that the Minister may, by legislative instrument, make rules that make provision for or in relation to a Code of Conduct that applies to persons who continue to receive funding under agreements entered into under the Disability Services Act 1986 (DS Act) and certain items in the FF(SP) Regulations.

169. This sub-item allows the Minister to make rules providing for a Transitional Code, which will form part of the Code of Conduct rules to be made under clauses 20 and 36 of the DSI Bill. The substantive provisions of the Transitional Code will be in the same terms as the Code of Conduct rules made under the DSI Bill.

170. The Transitional Code will apply to all existing providers of disability supports and services funded under the DS Act and certain programs specified in the FF(SP) Regulations.

171. Paragraphs 11(1)(a) and (b) apply the Transitional Code to entities receiving funding under the DS Act. Paragraphs 11(1)(c) and (d) apply the code of conduct to entities receiving funding under the FF(SP) Act.

172. Paragraph 11(1)(a) provides that the transitional Code applies to eligible organisations within the meaning of the DS Act, where:

•

before commencement of the DSI Bill, the Minister approved the making of a grant of financial assistance to the organisation under Part II of the DS Act

•

immediately before commencement of the DSI Bill, an agreement with the organisation under section 15 of that Act is in effect in connection with that approval.

173. Part II of the DS Act provides for grants of financial assistance to eligible organisations for employments services, advocacy services, research and development activities and a range of other eligible services.

174. Paragraph 11(1)(b) applies the Transitional Code to a person or body who is a party to an arrangement that was entered into under Part III of the DS Act before commencement of the DSI Bill and that is in effect immediately before that commencement.

175. Part III of the DS Act provides for arrangements between the Commonwealth and other persons to provide rehabilitation programs.

176. The effect of paragraphs 11(1)(a) and (b) is that the Transitional Code, once made, will apply to entities that are a party to an agreement or arrangement with the Commonwealth for funding under the DS Act at the time that the DSI Bill commences. Those entities may remain subject to the Transitional Code for as long as the agreement or arrangement is in effect.

177. Paragraph 11(1)(c) applies the Transitional Code to a person to whom money is paid before, on or after commencement of the DSI Bill under an arrangement made before that commencement under section 32B of the FF(SP) Act, where the arrangement:

•

is in effect immediately before that commencement, and

•

is for the purposes of a program, or part of a program, that is specified in the rules.

178. Paragraph 11(1)(d) applies the Transitional Code to a person to whom a grant of financial assistance is made before, on or after commencement of the DSI Bill under section 32B of the FF(SP) Act, where:

•

immediately before that commencement, an agreement between the person and the Commonwealth is in effect in connection with that grant, and

•

the grant is for the purposes of a program, or part of a program, that is specified in the rules.

179. The effect of paragraphs 11(1)(c) and (d) is that the Transitional Code may apply to persons who are a party to an agreement or arrangement with the Commonwealth for funding under section 32B of the FF(SP) Act so long as the agreement or arrangement was in effect immediately before the commencement of the DSI Bill.

180. The agreement or arrangement must be for the purposes of a program, or part of a program, that is specified in the rules.

181. Sub-item (2) provides that programs, or parts of programs, must be programs specified in the FF(SP) Regulations. This will include programs listed under Part 4 of Schedule 1AA to the FF(SP) Regulations as well as programs listed under Part 4 of Schedule 1AB of the FF(SP) Regulations.

182. The ability to specify a part of a program ensures that the rules do not unintentionally capture activities that are not intended to be covered by the Transitional Code. For example, an item listed under Part 4 of Schedule 1AB of the FF(SP) Regulations may provide legislative authority for activities relating to people with disability as well as activities relating to carers. Most activities relating to carers generally will fall outside of the intended scope of the DSI Bill and entities providing that activity should not be required to comply with the Transitional Code.

183. Sub-item (3) allows the rules to prescribe circumstances in which a person (such as a provider) breaches the Transitional Code because of an act or omission by a member of the key personnel (within the meaning of the DSI Bill) of the person or by an employee or individual otherwise engaged by the person. This makes it the responsibility of relevant persons to ensure that their key personnel, staff and contractors comply with the Transitional Code and take necessary and appropriate action if they do not.

184. This is consistent with the operation of the Code of Conduct rules to be made under the DSI Bill.

185. Sub-item (4) provides that the rules may not do the following:

•

create an offence or civil penalty;

•

provide powers of:

o

arrest or detention; or

o

entry, search or seizure;

•

impose a tax;

•

set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in the Bill;

•

directly amend the text of the Bill.

Statement of Compatibility with Human Rights

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

DISABILITY SERVICES AND INCLUSION (CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS) BILL 2023

This Bill is compatible with the human rights and freedoms recognised or declared in the international instrument listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

The Disability Services and Inclusion Bill (Consequential Amendments and Transitional Provisions) Bill 2023 (Bill) will make amendments to existing Commonwealth legislation that are consequential to the repeal of the Disability Services Act 1986 (DS Act) and its replacement by the Disability Services and Inclusion Bill 2023 (DSI Bill)

The amendments will support the Government's commitment to enable people with disability to participate fully in society and exercise full choice and control over their lives and to improve job opportunities, job readiness and support in employment.

Schedule 1 of this Bill will repeal and replace the DS Act in its entirety.

Schedule 2 to this Bill makes amendments to Commonwealth legislation to reflect the repeal and replacement of the DS Act. Schedule 2 also provides some limited savings provisions to ensure a smooth transition between the DS Act and the DSI Bill. Amendments are made to the following Commonwealth Acts:

•

Aged Care Act 1997

•

Aged Care Quality and Safety Commission Act 2018

•

Age Discrimination Act 2004

•

Australian Hearing Services Act 1991

•

Child Support (Registration and Collection) Act 1988

•

Freedom of Information Act 1982

•

Hearing Services Administration Act 1997

•

Human Services (Centrelink) Act 1997

•

Human Services (Medicare) Act 1973

•

Income Tax Assessment Act 1997

•

Military Rehabilitation and Compensation Act 2004

•

Safety, Rehabilitation and Compensation (Defence related Claims) Act 1988

•

Social Security Act 1991

•

Veterans' Entitlements Act 1986

Schedule 3 sets out application and saving provisions for the DSI Bill. Part 1 of Schedule 3 deals with preliminary matters, Part 2 deals with the operation of the DSI Bill and Part 3 deals with the operation of the DS Act. Part 3 also allows the Minister to make rules establishing a transitional Code of Conduct (Transitional Code).

All providers of disability supports and services subject to the Schedule 3 savings provisions in this Bill, and providers of certain programs specified in the Financial Framework (Supplementary Powers) Regulations 1997 (FF(SP) Regulations), will be required to comply with the Transitional Code. This means existing providers are subject to the same Code of Conduct requirements as providers funded under the DSI Bill.

Human rights implications:

The Bill engages the following rights:

•

the right to privacy and reputation - Article 17 of the International Covenant on Civil and Political Rights (ICCPR)

•

the rights of people with disabilities - Articles 5 and 16 of the Convention on the Rights of Persons with Disabilities (CRPD)

•

the right to social security - Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

The human rights implications of the DSI Bill are set out in detail in the explanatory memorandum to that Bill.

Right to privacy and reputation

Article 17 of the ICCPR provides the right to the protection of the law against interference with a person's privacy or attacks on a person's reputation.

This Bill makes a number minor consequential amendments to provisions relating to the disclosure of protected information under several pieces of Commonwealth legislation.

The proposed amendments will preserve existing information sharing arrangements relating to the disclosure of protected information to the Department of Social Services. It will not change create any new information sharing powers.

These amendments will ensure that the disclosure of protected information will not be arbitrarily disclosed and occur within the existing legislative parameters and safeguards of those above-mentioned legislation.

Where relevant, the provisions of the Privacy Act 1988 will also apply to all personal information.

Rights of people with disabilities

The Bill engages the right of people with disability to equality and non-discrimination in Article 5 of the CRPD.

Article 5 of the CRPD requires States Parties to recognise that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.

The Bill supports the right of people with disability to equality and non-discrimination by providing for a smooth transition between disability related programs provided under the DS Act and disability related supports and services that will be provided under the DSI Bill. This supports the right of people with disability to equality and non-discrimination.

Further, the Bill enables a Transitional Code to apply to providers who are funded to deliver disability supports through the DS Act or FF(SP) Regulations. Existing providers will be subject to the same Code of Conduct requirements as providers funded under the DSI Bill. This provides additional protections for all people with disability who receive support from Commonwealth disability services outside the NDIS. Consistent application of the Code of Conduct supports and upholds the rights of people with disability to equality and non-discrimination.

Article 16 of the CRPD provides that States Parties shall take all appropriate measures to protect persons with disabilities from all forms of exploitation, violence and abuse. The requirement to comply with the Code of Conduct forms an important part of how the DSI Bill implements the Article 16 obligation by setting clear standards for provider conduct and the safe and ethical delivery of disability services and supports.

Right to Social Security

Article 2 of the ICESCR provides that State Parties recognise the right to everyone to social security, including social insurance.

This Bill will make consequential amendments to the Social Security Act 1991 and the Veterans' Entitlements Act 1986. These amendments will make sure that people with disability will not lose their eligibility for the Disability Support Pension (DSP), mobility allowance and certain participation exemptions as a result of the repeal of the DS Act. Amendments will also allow the Secretary to make legislative instruments prescribing certain employment supports and services to be provided under the DSI Bill, which will ensure that affected people with disability will continue to be eligible for DSP, mobility allowance and participation exemptions once employment services for people with disability are provided under the DSI Bill.

Conclusion

The Bill is compatible with human rights because it advances the protection of the rights of persons with disabilities in Australia consistent with the CRPD and the ICESCR. It does not impose any new limitations on the right to privacy.