1.1 On 9 June 1998, the Attorney General, the Hon J W Shaw QC MLC, asked the Law Reform Commission (the “Commission”) to review the Disability Services Act 1993 (NSW) (“DSA”) and the Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) (“CAMA”).¹ The aim of the review is to determine whether the policy objectives of the Acts and the Regulations made under those Acts remain valid and, if so, whether the legislative framework is appropriate for achieving those objectives. In conducting this review, the Commission has separately considered and reported on the DSA and CAMA.² The consultations on the CAMA review ran parallel with those on the review of the DSA.

BACKGROUND TO THE COMMISSION’S INQUIRY

1.2 Section 29 of the DSA provides that the Minister must review the Act to determine whether its policy objectives remain valid and whether its terms remain appropriate for securing those objectives. The DSA requires the review to be done as soon as possible after five years from the date of assent of the Act (8 April 1993). There is a similar provision in CAMA.³

CONDUCT OF THE REVIEW

Reference Group

1.3 Stakeholders in the disability sector played a major role in developing the DSA and CAMA. To ensure that they played a role in this review, the Commission convened a ten member Reference Group, with the assistance of the Disability Council of NSW, to provide advice on the conduct of the reviews of CAMA and the DSA. The Reference Group was representative of consumers, service providers, advocates, families and carers. Members were also appointed to represent the views and interests of Aboriginal and Torres Strait Islander people and those from a non-English speaking background. A list of members of the Reference Group is provided at Appendix A. The Reference Group met on four occasions and provided comments on drafts of the Issues Paper and on this Report. The Commission is very grateful for the time members of the Reference Group gave to attend meetings and for their generosity in contributing their expertise.

Issues Paper

1.4 After receiving the reference in June 1998, the Commission wrote to a wide range of organisations with an interest in disability services and asked them to make preliminary submissions raising any issues they wanted the Commission to consider. The Commission also held meetings with key organisations, including the Ageing and Disability Department (“ADD”), the Department of Community Services (“DOCS”), ACROD,⁴ the Disability Council of NSW, the Institute for Family Advocacy and Leadership Development and the Association of Children’s Welfare Agencies. It also visited some of the large residential services.

1.5 In September 1998, the Commission published an issues paper which took into account the issues raised during the preliminary consultation.⁵ The paper examined the provisions of the DSA, raised issues identified in consultations and asked questions designed to elicit comment on whether the objects of the DSA remain valid and whether the terms of the DSA remain appropriate. The Issues Paper was distributed widely and in a number of alternative formats, such as large-print and spiral-bound, diskette, on the Commission’s website, a large-print summary, and a summary on audio tape. The review was also publicised in six newspapers for a variety of non-English speaking populations, on SBS radio, community radio stations and 2DAY-FM radio.

Submissions

1.6 Submissions closed on 14 December 1998. However, the Commission continued to accept submissions during January and February 1999, receiving 96 in total.⁶ The submissions included those prepared by peak groups in the community services sector which had themselves conducted extensive consultations with their members for the purposes of drafting their submissions to the Commission. Staff of the Commission attended several of these consultations.

1.7 The submissions covered a very broad range of stakeholders with an interest in the DSA, including people with disabilities, their families, advocacy groups, peak consumer groups, people with an interest in community services, and non-government providers of services to people with disabilities or to children and young people. Submissions were also received from some government agencies, including the Local Government and Shires Association of NSW, the Ombudsman, the Community Services Commission (“CSC”) and the Community Services Appeals Tribunal, now called the Community Services Division (“CS Division”) of the Administrative Decisions Tribunal (“ADT”). A submission was received from the Minister for Community Services, the Hon Faye Lo Po MP, representing a “whole of government” response on behalf of government agencies.

Public seminars

1.8 The Commission conducted seven public seminars on the DSA and CAMA in Sydney and selected country areas over a three week period between 18 November and 2 December 1998. The issues raised in IP 15 and IP 16 formed the basis of the discussions. Participants were given an opportunity to raise topics that were not covered in the Issues Papers. These seminars were well-attended and provided dynamic forums in which issues could be discussed openly. Importantly, they also allowed the Commission to see how the DSA and CAMA were working in practice.

Sydney seminars

1.9 Seminars were held in Sydney with the following groups:

• service providers (18 November 1998);
• consumers of disability services (20 November 1998);
• advocacy groups, and families and carers of people with disabilities (30 November 1998); and
• children and young people’s advocacy groups and service providers who provide services to children and young people (2 December 1998).

1.10 Three public seminars were also held in regional areas of NSW for anyone with an interest in CAMA or the DSA. These were held at:

• Wagga Wagga (23 November 1998);
• Maitland (24 November 1998); and
• Ballina (26 November 1998).

1.11 In conducting a review of legislation that can have an important impact on the lives of consumers of community services, it is vital that the views of those consumers be heard. This sometimes does not happen. For example, a report by the Disability Council of NSW found that people with disabilities often feel that there is inadequate consultation with them on important policy issues.⁷

1.12 The Commission was aware that consumers of community services might be less likely than other people to make written submissions and attend the Commission’s public seminars. The Commission was also aware that there could be additional cultural and language barriers for these people. It therefore commissioned three organisations to conduct small focus groups with consumers of community services, including Aboriginal and Torres Strait Islander people and people from non-English speaking backgrounds. Two of the organisations focused on consumers of disability services, and one on children and young people in care and formerly in care. The findings of these consultations have been published separately in a Research Report.⁸

Juliet London Research and Consultancy

1.13 Nine focus groups were conducted by Juliet London Research and Consultancy with people with intellectual, physical, sensory and psychiatric disabilities, autism and acquired brain injury. Twenty individual interviews were also conducted with people with intellectual, physical and sensory disabilities, acquired brain injury, and carers of people with intellectual disabilities. The research was conducted in the Sydney metropolitan area and in the Illawarra and Broken Hill regions. Fifteen Aboriginal and Torres Strait Islander people and people from a non-English speaking background were included in this project.

Moxon, Green and Associates

1.14 Two focus groups were conducted in Sydney by Moxon, Green and Associates. One was with children aged between 11 and 15 years with a physical disability, and the other was with people with an intellectual disability from non-English speaking backgrounds. An informal spontaneous discussion was also held with the parents of the children in the first focus group, facilitated by one of the parents.

State Network of Young People in Care

1.15 The NSW State Network of Young People in Care (“SNYPIC”) is the peak consumer group for young people in care. SNYPIC conducted four focus groups in Sydney with young people in care (in services in Sydney) and formerly in care.

Acknowledgement

1.16 This Report takes into account all of the views expressed in written and oral submissions, public seminars, consultations with individuals involved in areas related to DSA, the focus groups, and research literature. The Commission thanks the individuals and organisations who gave time and resources to the review.

LINKS BETWEEN DSA AND CAMA

1.17 CAMA has strong links with the DSA. Community Visitors appointed under CAMA visit services funded under the DSA to monitor the rights and well-being of people with a disability. CAMA also established the CSC, which is an independent watchdog body responsible for, among other things, inquiring into matters affecting service providers and consumers, and monitoring and reviewing the delivery of disability (and other community) services.⁹ Furthermore, the CS Division of the ADT is able to review certain Ministerial decisions made under the DSA.

HISTORY OF THE DSA

Rationalisation of Commonwealth/State responsibilities

1.18 The DSA was enacted as a result of an agreement between the Commonwealth and State and Territory governments about how responsibility for disability services would be rationalised. In 1991, the Commonwealth/State Disability Agreement (“CSDA”) attempted to clarify the types of services that would be administered by the Commonwealth, and those that would be administered by the States and Territories. The Agreement provided broadly that services relating to vocation, training and employment of people with a disability were the responsibility of the Commonwealth government, leaving the administration of accommodation support, respite care, independent living training, recreation and information services, to the States and Territories.¹⁰ Under this agreement a number of services which had been administered by the Commonwealth were transferred to State and Territory administration.

Concerns flowing from rationalisation

1.19 The transfer of Commonwealth funded services to the State was a matter of major concern to a number of organisations representing people with a disability. They feared that people with a disability using Commonwealth services would lose the benefit of the major philosophical and policy progress that had been made in service provision at Commonwealth level under the Disability Services Act 1986 (Cth). This Act moved away from a “medical” or care model of service provision. It embraced a rights-based approach aimed at enabling people with a disability to overcome barriers to their participation in general community life.¹¹ Principles and objectives that service providers were required to follow in providing services were developed after widespread national consultation with people with a disability and their associates. The principles and objectives were gazetted with the Disability Services Act 1986 (Cth).

Complementary legislation

1.20 As a result of these concerns, the Commonwealth required all States and Territories to enact disability services legislation that was complementary to the Commonwealth legislation before the CSDA would take effect.¹² The DSA is New South Wales’ complementary legislation. It is the product of extensive consultation with people with a disability and others. At the time of its introduction, the DSA represented:

a sea change in disability policy and programs at State level, and is even a significant improvement on the Commonwealth Act. Its passage brought genuine and deeply felt hope and optimism to people with disability and their associates across NSW.¹³

1.21 The consultations conducted by the Commission demonstrated strong support for the general approach and terms of the DSA. There was no support for a major revision of the DSA and all sectors were adamant that there should be no weakening of its provisions. For example, the Intellectual Disability Rights Service stated:

It is our view that the Disability Services Act 1993 (NSW) and CAMA has been the most effective of any of the State Disability Services Acts in Australia and we believe emphasis must be placed on maintaining its many strengths and on the modification of any weaknesses. We believe these [DSA and CAMA] Acts should not be changed radically in foundation or structure. In fact we strongly caution against wholly rewriting the two Acts, as this could result in a watering down of the many strengths and safeguards contained within them.¹⁴

1.22 The funding the NSW Government provides under the DSA for services to people with a disability is administered by ADD. That Department funds organisations to provide services under the DSA.¹⁵ It funds DOCS and a number of non-government organisations to provide services. Some non-government organisations contribute significant amounts of their own funds, or funds raised from other non-government sources, to the operation of their services. Some organisations that provide services for people with a disability are entirely self-funded. ADD provides funding for:

• accommodation support, which includes large residential services, hostels, group homes, attendant care (help with personal daily living tasks), in-home support and alternative family placement;
• community support, which includes early intervention, therapy, information and referral, advocacy, recreation and holiday programs, family and individual case management, mutual support and self-help groups;
• community access, which includes independent living training, day programs and post-school options (support for transition from school to adult community living);
• respite, which includes own-home respite, centre-based respite and host family respite; and
• other support, which includes funding for peak bodies, research and development, service evaluation and training.

• 1,825 people living in 17 large government residential centres;
• 563 people living in 30 large non-government residential centres;
• 1,055 people living in 219 government group homes;
• 1,260 people living in 286 non-government group homes; and
• 201 children under 18 living in large residential centres.¹⁸

EFFECTIVE LEGISLATION REQUIRES ADEQUATE RESOURCES

Concern about adequate resources

1.25 In submissions and during consultations, organisations and individuals expressed concern that lack of resources is affecting the way the DSA is being implemented. It was a common theme that the major concerns of the disability services sector stem not from the provisions of the DSA, but from problems caused by insufficient funding to achieve the policy objectives of the Act.

The Commission’s view

1.26 The Commission has not been asked to determine what may be an appropriate level of funding to secure the policy objectives of the DSA. It has been required, however, “to conduct the review with consideration given to the resources or financial implications for the current legislation and regulations and any proposed legislative or regulatory amendments”. There is a widespread view amongst the disability services sector that the policy objectives of the DSA are not being met in the following areas because of insufficient resources:

• Non-conforming services continue to be funded in breach of the DSA.²¹
• Many services that seek to comply with the DSA are unable to do so because they do not have the resources.²²
• Closing down or defunding services that are unwilling to comply with the DSA may not be an option because of the shortage of alternative services.²³
• Inequities in funding between services may partly be resolved through better planning, but ultimately can only be overcome by extra funding.
• An appropriately transparent funding program is difficult to achieve because there are not sufficient funds to meet need in areas identified as being under-serviced.
• Outcomes achieved from service provision cannot be properly linked to funding because they cannot be adequately monitored.

1.28 Whatever amount of public money is allocated to disability services, the Government has a responsibility to ensure that it is spent in a transparent and accountable way. Services should be answerable to the Government and consumers for the public money spent and the outcomes sought and achieved. Legislation underpinning a funding program should facilitate these goals.

FURTHER LEGISLATIVE REVIEW

1.29 Throughout this Report, the Commission makes recommendations which, if implemented, would significantly affect the way in which disability services are provided and administered. For example, in Chapter 7, the Commission recommends changes to the transition process for services that do not comply fully with the objectives of the DSA, and, in Chapter 8, recommends the introduction of a new quality assurance mechanism. The Commission is of the view that the implementation and progress of these changes should be reviewed in the future.

1.30 However, even if the recommendations are not implemented, there are cogent reasons for a further review of the Act to be stipulated in the legislation. This Report highlights the significant impact the DSA has had on the quality of life enjoyed by people with disabilities who receive services funded under it. It also reports serious concerns, particularly with the process of ensuring that all services funded under the Act comply fully with its requirements and an effective mechanism to monitor quality in service provision. Accordingly, the Commission believes the DSA should be reviewed again within 5 years of the completion of this Report regardless of whether or not the Government chooses to adopt the recommendations of this Report.

Recommendation 1

The DSA should be amended to provide for a further review five years from the date on which this Report is tabled in Parliament. The purpose of the review would be to determine whether the objectives of the Act remain valid and the terms of the Act remain appropriate for securing those objectives. The Act should require that the Minister table a report of the review in both Houses of Parliament within a further 12 months.

1. The name of this legislation was recently changed to the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW). However, to avoid confusion, this Report will refer to it as CAMA.

2. New South Wales Law Reform Commission, Review of the Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) (Report 90, 1999) (“Report 90”).

3. CAMA s 126.

4. ACROD is a peak group representing service providers in the disability industry.

5. New South Wales Law Reform Commission, Review of the Disability Services Act 1993 (NSW) (Issues Paper 16, 1998) (“IP 16”). The Commission also published an issues paper on the CAMA reference: New South Wales Law Reform Commission, Review of the Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) (Issues Paper 15, 1998) (“IP 15”).

6. The list of submissions appears at Appendix B.

7. NSW, Disability Council of NSW, Consultation and People with a Disability: Issues for Public Sector Managers in NSW (1997) at vii.

8. New South Wales Law Reform Commission, Review of the Disability Services Act 1993 (NSW) and the Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW): Consultations (Research Report 9, 1999) (“RR 9”).

9. CAMA s 83 and 11.

10. Advocacy services may be funded by the Commonwealth or the State and Territory governments, or by both jointly.

11. The Disability Services Act 1986 (Cth) has been reviewed by the Australian Law Reform Commission. See Australian Law Reform Commission, Making Rights Count: Services for People with a Disability (ALRC 79, 1996).

12. See Disability Services Act 1991 (ACT); Disability Services Act 1991 (Vic); Disability Services Act 1992 (Qld); Disability Services Act 1992 (Tas); Disability Services Act 1993 (NT); Disability Services Act 1993 (SA); and Disability Services Act 1993 (WA).

13. People with Disabilities (NSW) Inc, Submission at 9.

14. Intellectual Disability Rights Service Inc, Submission at 6-7.

15. The Minister approves funding under s 10 of the DSA.

16. NSW, ADD, Annual Report 1996/97 at 33.

17. NSW, ADD, Annual Report 1996/97 at 96.

18. NSW, CSC and The Audit Office, Performance Audit Report: Large Residential Centres for People with a Disability in New South Wales (1997) (“CSC and Audit Office Report”) at 2.

19. NSW, ADD, Annual Report 1996-97 at 37-38.

20. NSW, ADD, Annual Report 1996-97 at 21.

21. See para 5.11 and 6.3.

22. Ethnic Childcare, Family and Community Services Co-operative Ltd, Submission; Dunrossil Challenge Foundation Ltd, Submission; NSW Council for Intellectual Disability, Submission.