4.1 One of the objects of the DSA is to ensure the provision of services that:

further the integration of persons with disabilities in the community and complement services available generally to such persons in the community.¹

REQUIREMENTS OF SECTION 9

4.2 Section 9 requires government departments and agencies “to prepare, and make provision for the implementation of, a plan” that encourages the department or agency to provide services in a way that “furthers the principles and applications of principles”. The effect of section 9 is to extend the principles and applications of principles to most government bodies,² and to all services provided by those bodies, whether or not they are provided specifically for people with a disability.³ Departments and agencies were given until April 1995 to prepare their plans under section 9.⁴ The plans, and any amendments, must be made available to the public.⁵ They must also provide for periodic reports of the progress of the department or agency in implementing the plan.⁶ Departments and agencies must include in their annual reports a statement setting out the progress during the reporting year in implementing the disability plan.⁷

OTHER LAW AND POLICY

Disability Discrimination Act 1992 (Cth)

Discrimination is unlawful

4.3 The Disability Discrimination Act 1992 (Cth) makes it unlawful for a person who provides goods or services, or makes facilities available (whether for payment or not), to discriminate against someone on the ground of his or her disability, or the disability of an associate:

• by refusing to provide the goods or services, or to make the facilities available;
• in the terms or conditions on which the goods or services are provided, or the facilities made available; or
• in the manner in which the goods or services are provided, or the facilities made available.⁸

Action plans

4.5 The Disability Discrimination Act 1992 (Cth) states that service providers may prepare and implement an action plan.¹¹ The action plans must contain provisions relating to:

• devising policies and programs to achieve the objects of the Act;
• the communication of policies to employees and other people;
• the review of practices to identify any areas of discrimination;
• setting goals and targets against which the plan’s success can be assessed;
• other means of evaluating policies and programs; and
• appointing people within the organisation to implement the plan.¹²

Anti-Discrimination Act 1977 (NSW)

4.6 The Anti-Discrimination Act 1977 (NSW) prohibits, among other things, discrimination on the ground of disability in the provision of goods and services (whether for payment or not). It is unlawful for a person who provides goods or services to discriminate either:

• by refusing to provide the person with those goods or services; or
• in the terms on which he or she provides the person with the goods or services.¹⁵

4.7 Part 9A of the Anti-Discrimination Act 1977 (NSW) requires all NSW public sector agencies¹⁷ to develop an equal opportunity management plan. The plan should include policies and programs designed to eliminate discrimination¹⁸ and to promote equal opportunity for women, members of racial minorities and physically handicapped persons.¹⁹ Agencies must give a copy of their management plan to the Director of Equal Opportunity in Public Employment and must submit annual reports to the Director on the progress the agency has made in the implementation of the plan.²⁰

Disability Direction: Tomorrow’s Blueprint

4.8 In November 1994, the NSW Government published a set of guidelines called Disability Direction: Tomorrow’s Blueprint to direct public authorities in the preparation of their section 9 plans.²¹ Three Key Result Areas were identified: access, employment and disability-specific services.²² As noted above,²³ plans were due by April 1995. Most public authorities submitted plans of some form as required.

Disability Policy Framework and Guidelines

Framework

4.9 After consultation, the NSW Government released its Disability Policy Framework and Guidelines in December 1998. The Disability Policy Framework provides revised and more detailed direction to departments and agencies on how to develop their section 9 plans. As with the plans developed under the Commonwealth Disability Discrimination Act,²⁴ this document refers to section 9 plans as “Disability Action Plans”.

4.10 The Disability Policy Framework comprises principles, a goal, objectives and strategies. The goal is:

a society in which individuals with disabilities and their carers live as full citizens with optimum quality of life, independence and participation.²⁵

• the achievement of a planned, co-ordinated and flexible approach to policy and service provision in NSW for and with people with disabilities and their carers;
• the creation and promotion of opportunities, services and facilities which enable people with disabilities and their carers to participate in the wider community and to attain a better quality of life; and
• providing ways for State Government service providers to measure and report on their progress in increasing access for people with disabilities.²⁶

4.12 The Disability Policy Guidelines are designed to help departments and agencies, and participating local councils,²⁷ to develop their section 9 plans. They outline the disabilities that should be covered by the plans, what plans should include and the priority areas for government departments and agencies. They include model formats for section 9 plans and annual reports. Section 9 plans developed in accordance with the Disability Policy Framework and Guidelines are taken to comply with both the DSA and the Disability Discrimination Act 1992 (Cth).²⁸

4.13 The Disability Policy Guidelines state that government departments and agencies must:

• change the priorities of their existing programs and re-allocate their resources more appropriately to meet the needs of people with disabilities;
• submit to ADD a Disability Action Plan drawn up according to the Guidelines, in December of every third year (beginning in 1999);
• submit to ADD each year (beginning in 1999) the part of their annual report that demonstrates progress in achieving the goals contained in their Disability Action Plan; and
• include performance measures aimed at increasing the accessibility of services for people with disabilities which are tied to the performance agreements of Chief Executive Officers (“CEOs”) and Senior Executive Service (“SES”) members.²⁹

LIMITATIONS OF SECTION 9

4.15 Section 9 imposes on government departments and agencies an obligation to prepare a plan and to make provision for implementation. It also imposes an obligation on agencies to provide periodic reports outlining the progress made in implementing the plan, and to note that progress in each agency’s annual report. It is not clear, however, whether section 9 imposes on departments and agencies an obligation to implement the plan, since it appears that no consequences flow from the failure to implement. Until the adoption of the Disability Policy Framework and Guidelines, there was no agency with responsibility for monitoring plans or their implementation. Furthermore, section 9 does not impose obligations on all government agencies. For example, the New South Wales Police Service and local government authorities are not required to prepare plans. Consequently, section 9 may not be as effective as it could be in ensuring that government departments and agencies provide services in a way that furthers the principles and applications of principles.

4.16 This is in contrast to Western Australia, where the Disability Services Act 1993 (WA) provides that each public authority must prepare and implement a disability service plan.³¹ Authorities which are required to table an annual report must include in it an update on the implementation of the plan. Other agencies must report on implementation of the plans to the Disability Services Commission before September each year.³²

VIEWS IN SUBMISSIONS

Barriers still exist

4.17 The Commission’s consultations and focus groups suggested that participation by people with disabilities in the community was still considerably impeded because of the failure of public authorities to address the issue of barriers to access. For young people, access to mainstream schools was a major concern:

If there were more kids with disabilities at school we wouldn’t be seen as so different. The teachers and the kids need to know more about disabilities. It should be taught at school. At the moment nobody knows anything about disability.³³

I won’t be able to drive but I would like to use the bus. I could travel independently if the bus was accessible.³⁴

I can’t use stairs and there are too many stairs at my station. I want to use the train but I can’t.³⁵

4.19 Consultations and some submissions noted a lack of commitment on the part of Government in implementing section 9 plans. One submission argued that the Government paid “lip service” to section 9.³⁶ Another considered that section 9 plans had the capacity to remove physical barriers and change attitudes, but suggested that there was a lack of political will and commitment to implement the plans.³⁷

Section 9 should be strengthened

4.20 Most submissions that addressed this issue were of the view that section 9 should be strengthened, as it offered the “strongest possibilities of making a real difference in people’s lives”.³⁸ Submissions also suggested improvements to section 9. The main focus in submissions was the need to ensure accountability on the part of government departments and agencies for implementing section 9 plans. This concern was also raised by the Disability Council in their report on consultation with people with a disability.³⁹ Responsibility for the plans and their implementation should be at the highest level. Some submissions considered that the CEO of each department or agency should be responsible for developing a plan, and the Minister should be responsible for approving, monitoring and reporting on its implementation.⁴⁰

4.21 Other submissions suggested the following:

• Clear objectives and performance indicators should be built into each department’s and agency’s strategic plan, and reported against in the annual report.⁴¹
• The development and implementation of section 9 plans should be included in the performance agreements signed by CEOs and SES staff.⁴²
• Plans should be monitored by an external body.⁴³ The CSC (or the ADT) should be able to hear complaints against the Minister’s approval of plans.⁴⁴
• There should be a range of enforcement measures to ensure agencies produce and implement plans within a specified time-frame.⁴⁵

All government departments and agencies should be covered

4.23 Many submissions argued that all government departments and agencies, including local councils,⁴⁷ should be required to prepare and implement section 9 plans.⁴⁸ The Local Government and Shires Associations pointed out that many councils are in the process of preparing, with some having submitted, action plans under the Disability Discrimination Act 1992 (Cth).⁴⁹ It noted that ADD has raised the possibility of local governments being included in section 9 of the DSA, but is concerned about resources and the possible overlap with plans prepared under the Disability Discrimination Act 1992 (Cth).⁵⁰ Other submissions stated that all agencies providing a service to people with a disability should be required to have and implement a plan.⁵¹

THE COMMISSION’S VIEWS

4.24 The Commission considers that people with a disability should have the same right as others in the community to use services provided by State and local governments. Section 9 plans, like action plans under the Disability Discrimination Act 1992 (Cth), play a very important role in identifying systemic problems and generating institutional change. They can help change attitudes about disability held by the organisation preparing the plan, and by the community generally. A section 9 plan which has been properly developed puts the onus on decision-makers within organisations to identify and remove discriminatory practices, and to overcome barriers people with a disability face in gaining access to services. A review of the Disability Services Act 1993 (WA) reported that the development of plans has created more awareness about issues for people with disabilities than any other strategy, and has been a catalyst for systemic change.⁵²

4.25 The ultimate goal of section 9 is to ensure that all services provided by government agencies and available to the community as a whole are accessible to people with a disability wherever possible. However, from the Commission’s consultations it appears that this has not occurred, and that the section 9 process has largely failed to achieve its aims and produce real change. The Commission acknowledges that a number of the issues raised in submissions have been addressed by the Disability Policy Framework and Guidelines. They do not, however, have the force of law and may therefore lack the necessary power to generate substantial change.

Extend the scope of section 9

4.26 In the Commission’s view, section 9 should apply to all government departments and agencies. The Commission notes that many municipal and shire councils have prepared, or are in the process of preparing, action plans under the Disability Discrimination Act 1992 (Cth). Some councils are also voluntarily preparing section 9 plans in compliance with the Disability Policy Framework and Guidelines. The Commission acknowledges the resource implications of extending section 9 to include local government agencies. Nevertheless, the Commission considers that section 9 should apply to local government authorities after a period of transition, during which the problems associated with compliance may be addressed.

Improve section 9 plans

4.27 The Commission is of the view that the quality of section 9 plans could be improved in the following key areas:

• content;
• appointment of co-ordinators;
• integration into corporate planning;
• inclusion in performance agreements of CEOs and SES officers;
• consultation; and
• monitoring and reporting obligations.

4.28 From the Commission’s consultations, it appeared that the overall standard of section 9 plans completed in 1995 was poor. Although some plans were of a high standard, generally they failed to:

• address the organisation’s core business;
• outline specific strategies and performance indicators, or timelines for their implementation;
• address the inclusion of the proposed strategies into the organisation’s corporate business plan or budget; and
• demonstrate an awareness of the need for cross-portfolio planning.

• the policies and programs to be established in relation to all the organisation’s core activities;
• how staff will be informed of those programs;
• how current practices will be reviewed;
• goals and targets;
• other ways of evaluating the policies and program;
• timeframes for implementation;
• the way in which issues of gender, sexual orientation, and cultural and linguistic diversity have been addressed; and
• the nominee in the organisation responsible for implementing the plan.

Appointment of section 9 plan co-ordinators

4.31 From consultations conducted by the Commission, it appeared that an important factor in the development of a high-quality section 9 plan was the appointment of a co-ordinator within the designated organisation to take responsibility for the plan and liaise with ADD. This is required currently under the Disability Policy Guidelines,⁵⁴ and is supported by the Commission. It is also important that co-ordinators have expertise in disability issues and clear support from senior levels within their organisation. In addition, ADD should provide training for co-ordinators and executives of public authorities on disability issues and section 9 planning.

Integration of section 9 plans into corporate planning

4.32 The Commission endorses the recommendation made by the Disability Council of NSW in their report on consultation with people with a disability, that section 9 plans should be integrated into each organisation’s corporate planning processes and cycles.⁵⁵ It is only then that section 9 plans will be translated into action.

Performance agreements with CEOs and SES officers

4.33 As discussed above,⁵⁶ the Disability Policy Guidelines require that all government departments and agencies must include in their performance agreements with CEOs and SES officers performance measures related to increasing the accessibility of services for people with disabilities. This was recommended by the Disability Council of NSW in their report on consultation.⁵⁷ The Commission agrees that this is an important requirement.

Broad consultation required

4.34 The Commission was told that high-quality section 9 plans typically were developed after broad consultation both within and outside the agency. It is particularly important that people with disabilities and groups representing their interests be included in this consultation process. The Disability Council of NSW recommended in their report on consultation that section 9 plans include a quality assurance procedure for consultation with people with disabilities and a plan for its implementation.⁵⁸ The Commission supports this recommendation.

Reporting and monitoring obligations

4.35 In the Commission’s view, section 9 should include provisions to ensure that the progress of departments and agencies in implementing their plans is reported and monitored. Departments and agencies should be required to submit a plan to ADD for review every three years. They should also be required to submit to ADD their progress report each year. Each department and agency should be required to include a report of their progress in its Annual Report, and ADD should also continue to be required to report the progress of each agency in its annual report. These provisions mirror those in the annual reporting legislation,⁵⁹ but would have greater application by pertaining to those agencies not currently covered by those Acts. In addition, the Minister for Ageing and Disability should be required to report to Parliament each year on the progress all departments and agencies have made in implementing their section 9 plans.

4.36 For these reporting requirements to have substance, it is important that two other issues are addressed. First, agencies must provide detailed information on their progress towards implementing their section 9 plans against the specific performance measures and timelines outlined in their plans. This is currently a requirement under the Disability Policy Guidelines,⁶⁰ which the Commission supports. The Commission’s consultations indicated that past practice in providing information in annual reports has varied considerably. For example, while some organisations have set out clearly their strategies, achievements and outcome measures in their annual report, others have made only brief mention of their section 9 plans in the context of reporting on Equal Employment Opportunity issues. It is also important that the annual reports outline not only the organisations’ positive achievements in implementing their section 9 plans, but the areas in which the plans have not been implemented or in which the organisations have experienced problems. This will facilitate a much more accurate assessment of the implementation and impact of plans in practice.

4.37 Another key issue is the need for ADD to take a strong monitoring role in relation to section 9 plans. The Commission was told in consultations that there had been little feedback provided to organisations about their section 9 plans and their strengths and weaknesses. Under the Disability Policy Guidelines, ADD has responsibility for monitoring section 9 plans. It is required to “receive and respond to” section 9 plans, and “offer advice and assistance” on their development and implementation.⁶¹ To strengthen this, the legislation should require ADD to review all section 9 plans and provide written reports to departments and agencies on the extent to which their plans comply with the principles and applications of principles of the DSA.

Recommendation 13

Section 9 of the DSA should apply to all government departments and agencies and, after a phasing-in period, to local government authorities.

Recommendation 14

Section 9 of the DSA should be amended to require every government department and agency to prepare and implement a plan that includes the following information:

• the policies and programs the authority will establish to achieve compliance with the objects, principles and applications of principles in relation to all its core activities or areas of operation;
• how its employees will be informed about these policies and programs;
• how practices within the authority will be reviewed to identify any practices which do not comply with the objects, principles and applications of principles;
• the goals and targets, where these may reasonably be determined, against which the success of the plan in achieving compliance with the objects, principles and applications may be assessed;
• the other ways in which the authority will evaluate the programs and policies it plans to use to achieve compliance with the objects, principles and applications;
• the timeframe within which the goals and targets are to be achieved;
• how gender, sexual orientation, and cultural and linguistic diversity have been taken into account in preparing the plan; and
• the person nominated by the authority to implement the plan.

Recommendation 15

Section 9 of the DSA should be amended to require:

• government departments and agencies to submit their plan to ADD every three years for review and to provide a written report on the extent to which the plan complies with the objects, principles and applications of principles;
• government departments and agencies to include in their annual report to Parliament a report of their progress in implementing their section 9 plan;
• government departments and agencies to submit their progress report to ADD, which must, in its annual report, report progress on implementation; and
• the Minister to report annually to Parliament on the progress government departments and agencies have made in implementing their section 9 plans.

1. DSA s 3(a)(i).

2. Section 9 imposes the requirement on a “public authority”. This means a government department, administrative office or declared authority specified in Sch 1, 2 or 3 to the Public Sector Management Act 1988 (NSW), and includes an authority prescribed as a public authority by the Regulation: DSA s 9(7).

3. DSA s 9(5).

4. DSA s 9(3); and NSW, Social Policy Directorate and Office of the Director of Equal Opportunity in Public Employment, NSW Government Disability Strategic Plan: Joint Agency Statement (1994) at 1.

5. DSA s 9(4).

6. DSA s 9(2).

7. Annual Reports (Departments) Regulation 1995 (NSW) cl 9 and Sch 1; and Annual Reports (Statutory Bodies) Regulation 1995 (NSW) cl 15 and Sch 1.

8. Disability Discrimination Act 1992 (Cth) s 24(1).

9. Disability Discrimination Act 1992 (Cth) s 24(2).

10. Disability Discrimination Act 1992 (Cth) s 11.

11. Disability Discrimination Act 1992 (Cth) s 60.

12. Disability Discrimination Act 1992 (Cth) s 61.

13. Disability Discrimination Act 1992 (Cth) s 64.

14. Disability Discrimination Act 1992 (Cth) s 65.

15. Anti-Discrimination Act 1977 (NSW) s 49M(1).

16. Anti-Discrimination Act 1977 (NSW) s 49M(2).

17. Part 9A specifically applies to public employers. This includes all departments specified in certain schedules to the Public Sector Management Act 1988 (NSW), all declared authorities under the Public Sector Management Act 1988 (NSW) and the Police Service. In addition, s 122B(1)(d) allows for extending coverage by proclamation. It is by the use of this proclamation provision that universities and health service bodies are now covered.

18. Note: only on the grounds of race, sex, marital status and physical impairment.

19. Section 122J of the Anti-Discrimination Act 1977 (NSW) provides some guidance on matters that should be included in such a plan. The objects of Part 9A are contained in s 122C of the Act.

20. Anti-Discrimination Act 1977 (NSW) s 122L.

21. NSW, Office on Disability, Social Policy Directorate, Disability Direction: Tomorrow’s Blueprint – The New South Wales Government Disability Strategic Plan (1994).

22. NSW, Office on Disability, Social Policy Directorate, Disability Direction: Tomorrow’s Blueprint – The New South Wales Government Disability Strategic Plan (1994) at 23-31.

23. See para 4.2.

24. Disability Discrimination Act 1992 (Cth) s 61. See para 4.3-4.5.

25. NSW, ADD and NSW Health, NSW Government Disability Policy Framework (1998) at 5.

26. NSW, ADD and NSW Health, NSW Government Disability Policy Framework (1998) at 5.

27. Local councils may, but need not, prepare s 9 plans.

28. NSW, ADD and NSW Health, NSW Government Disability Policy Framework (1998) Guidelines at 2.

29. NSW, ADD and NSW Health, NSW Government Disability Policy Framework (1998) Guidelines at 3.

30. NSW, ADD and NSW Health, NSW Government Disability Policy Framework (1998) Guidelines at 5.

31. Disability Services Act 1993 (WA) s 28.

32. Disability Services Act 1993 (WA) s 29.

33. RR 9 at para 2.42.

34. RR 9 at para 2.42.

35. RR 9 at para 2.71.

36. NSW Council for Intellectual Disability, Submission.

37. Australian Quadriplegic Association Ltd (NSW), Submission.

38. Multicultural Disability Advocacy Association of NSW Inc, Submission at 7.

39. NSW, Disability Council of NSW, Consultation and People with a Disability: Issues for Public Sector Managers in NSW (1997) at 51.

40. Disability Safeguards Coalition, Submission; and Institute for Family Advocacy and Leadership Development Association Inc, Submission.

41. Australian Quadriplegic Association Ltd (NSW), Submission; and Citizen Advocacy NSW, Submission.

42. Western Sydney Intellectual Disability Support Group Inc, Submission; and Physical Disability Council of NSW Inc, Submission.

43. Australian Quadriplegic Association Ltd (NSW), Submission; D Newey, Submission; Citizen Advocacy NSW, Submission; Western Sydney Intellectual Disability Support Group Inc, Submission; and Multicultural Disability Advocacy Association of NSW Inc, Submission.

44. Disability Safeguards Coalition, Submission; NCOSS, Submission; NSW Council for Intellectual Disability, Submission; Institute for Family Advocacy and Leadership Development Association Inc, Submission; and H Seares, Submission.

45. NSW Statewide Disability Coalition, Submission; Disability Safeguards Coalition, Submission; D Newey, Submission; Western Sydney Intellectual Disability Support Group Inc, Submission; and Institute for Family Advocacy and Leadership Development Association Inc, Submission.

46. Disability Council of NSW, Submission.

47. Australian Quadriplegic Association Ltd (NSW), Submission; D Newey, Submission; Physical Disability Council of NSW Inc, Submission; and H Seares, Submission.

48. Disability Safeguards Coalition, Submission; Paraquad NSW, Submission; NCOSS, Submission; Multicultural Disability Advocacy Association of NSW Inc Submission; ACROD Ltd NSW Division, Submission; NSW Council for Intellectual Disability, Submission; Deaf Society of NSW, Submission; H Seares, Submission; and Confidential Submission 1.

49. Disability Discrimination Act 1992 (Cth) s 61.

50. Local Government and Shires Associations of NSW, Submission at 5.

51. NSW Statewide Disability Coalition, Submission; Confidential Submission 1.

52. Western Australia, Minister for Disability Services, Review of the Disability Services Act 1993 (WA): Ministerial Report to Parliament in Accordance with Section 57(5) of the Act (1998).

53. NSW, ADD and NSW Health, NSW Government Disability Policy Framework (1998) Guidelines at 3.

54. NSW, ADD and NSW Health, NSW Government Disability Policy Framework (1998) Guidelines at 3.

55. NSW, Disability Council of NSW, Consultation and People with a Disability: Issues for Public Sector Managers in NSW (1997) at 51.

56. See para 4.12-4.14.

57. NSW, Disability Council of NSW, Consultation and People with a Disability: Issues for Public Sector Managers in NSW (1997) at 51 and 61.

58. NSW, Disability Council of NSW, Consultation and People with a Disability: Issues for Public Sector Managers in NSW (1997) at 60-61.

59. Annual Reports (Departments) Regulation 1995 (NSW) cl 9 and Sch 1; Annual Reports (Statutory Bodies) Regulation 1995 (NSW) cl 15 and Sch 1.

60. NSW, ADD and NSW Health, NSW Government Disability Policy Framework (1998) Guidelines at 3.