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.

RECOMMENDATION 2

Section 3(b)(i) of the DSA should be amended to replace the words “integration of persons with disabilities in the community” with the words “inclusion of persons with disabilities in community life”.

RECOMMENDATION 3

Section 3(b)(ii) and section 3(e) of the DSA and the applications of principles in Schedule 1 clause 2(a) should be amended to replace the words “integration in the community” with “inclusion in community life”.

RECOMMENDATION 4

The principles in Schedule 1 clause 1(c) should be amended to include the words “and goals” after the word “capacities”.

RECOMMENDATION 5

The applications of principles in Schedule 1 clause 2(b) should be amended to read “to contribute to ensuring that the conditions of the every day life of persons with disabilities are the same as, or as close as possible to, conditions which are valued in the community as a whole”.

RECOMMENDATION 6

Section 3(b) should be amended to include a new sub-paragraph (iv) to read “and that minimises the impact that increasing support needs may have on a person’s ability to control his or her own life”.

RECOMMENDATION 7

Section 3 should be amended to include a new object “to ensure that access to services is determined on a fair and equitable basis”.

RECOMMENDATION 8

Section 3(b) of the DSA should be amended to include a new sub-paragraph to ensure the provision of services that take account of cultural and linguistic diversity, and gender and sexual orientation.

RECOMMENDATION 9

The applications of principles in Schedule 1 clause 2(e) should be amended to read “to meet the needs of persons with disabilities whose experience reflects their gender, cultural or linguistic background, sexual orientation or Aboriginal or Torres Strait Islander identity”.

RECOMMENDATION 10

The applications of principles in Schedule 1 clause 2(m) should be amended to read “to support the relationships that persons with disabilities have with their families, carers and significant others”.

RECOMMENDATION 11

Section 3(f) of DSA should be repealed and replaced with a new object “to ensure that comprehensive forward plans for disability programs are developed, published and reviewed on a regular basis”.

RECOMMENDATION 12

The DSA should be amended to require the Minister to prepare and publish a four-year plan within six months of this amendment coming into effect. It should require the Minister to review, update and publish the plan every year. It should provide that in preparing the plan the Minister must:

• identify appropriate planning areas;
• collect the best available data on demand, supply and unmet need in these areas;
• consult with all relevant stakeholders;
• establish mechanisms for co-operating with generic and other relevant service providers, including agencies providing services and support for children;
• take into account the needs and views of people from non-English speaking backgrounds and Aboriginal and Torres Strait Islander people; and
• identify priorities for service provision by location and type of service.

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.

RECOMMENDATION 16

Section 5 (1)(a) of the DSA should be amended to be consistent with the definition of disability in the Anti-Discrimination Act 1977 (NSW). Sections 5(1)(b) and 5(1)(c) should remain.

RECOMMENDATION 17

The terms and conditions in section 12 of the DSA should make funding conditional upon participation in the quality assurance process and certification by DisQAC.

RECOMMENDATION 18

The DSA should continue to provide for a transition process to assist all services to meet the objects, principles and applications of principles.

RECOMMENDATION 19

The DSA should be amended to require the Minister to prepare and publish, within six months of this amendment coming into effect, a plan stating how all transition services will be funded to reach conformity. The DSA should require the plan to identify:

• the amount of transition funding required to enable all services to achieve conformity;
• the date by which all transition funding will have been granted and all services will have achieved conformity; and
• the date on which each service will receive transition funding and the date on which each service will have achieved conformity.

RECOMMENDATION 20

The DSA should be amended to provide for a two-stage transition process: Stage 1 and Stage 2.

RECOMMENDATION 21

The Commission recommends that a Stage 1 transition service would be one scheduled to receive transition funding more than twelve months in the future. A Stage 1 transition service should be required to prepare a plan to show how the service is meeting, or intends to meet, certain identified basic criteria. Those criteria should be developed by DisQAC (see Recommendation 25) in consultation with industry and consumer groups, and peak bodies.

RECOMMENDATION 22

The Commission recommends that a Stage 2 transition service would be one scheduled to receive transition funding in, or sooner than, twelve months. A Stage 2 transition service should be required to prepare a final and detailed transition plan outlining the steps to achieving full conformity, and the date on which this will occur.

RECOMMENDATION 23

The DSA should be amended to provide that Stage 1 and Stage 2 transition plans should be lodged with DisQAC, which would be responsible for assessing the plans and, if suitable, certifying the services. The development of criteria for assessing the suitability of the transition plans should involve input from the service industry, consumers and peak bodies. DisQAC should also monitor the implementation of the plans.

RECOMMENDATION 24

The DSA should be amended to provide that the Minister for Disability Services is empowered to fund or provide only those services which:

• comply fully with the objects, principles and applications of principles in the DSA;
• have been certified by DisQAC as having suitable Stage 1 transition plans and which continue to meet those plans; or
• have been certified by DisQAC as having suitable Stage 2 transition plans and, until those plans are implemented fully, continue to comply as closely as possible with the requirements of the DSA.

RECOMMENDATION 25

The DSA should be amended to provide that, on achieving full conformity, a service must comply with the requirements of the quality assurance process applicable to all services (see Recommendations 26-28).

RECOMMENDATION 26

The DSA should establish a new quality assurance mechanism.

As part of the new mechanism, the DSA should require the Minister for Disability Services to establish DisQAC as an independent body to oversee and monitor the quality assurance process, and certify disability services. The membership of DisQAC should comprise representatives of consumers and the service industry with recognised knowledge and expertise.

RECOMMENDATION 27

The functions of DisQAC should be developed in consultation with consumer and industry groups, but should include:

• establishing the new quality assurance scheme;
• assessing and certifying Stage 1 and Stage 2 transition services;
• assessing and certifying new services as conforming with the DSA;
• providing advice and support to services about quality service provision;
• monitoring whether services meet targets set in Stage 1 and Stage 2 transition plans;
• monitoring whether services are achieving continuous quality improvement;
• identifying and registering services of “concern”, where closer monitoring may be necessary;
• notifying the Minister if a service fails to comply with the requirements of the quality assurance process; and
• recommending to the Minister that sanctions be imposed on services that fail to comply with the objects, principles and applications of principles, the revised Standards (see Recommendation 28), or their transition plans.

RECOMMENDATION 28

The new quality assurance process should apply to all services funded or provided under the DSA, including DOCS services. The features of the new mechanism should be developed in consultation with consumer and industry groups, but should include:

• the introduction of a revised set of Standards, based more closely on the objects, principles and applications of principles in the DSA, which focus on the outcomes to be achieved for people with disabilities;
• replacing the current self-assessment procedure with a more accountable system of peer review; and
• independent monitoring and certification of services by DisQAC.

RECOMMENDATION 29

The requirement for three yearly review under section 15 of the DSA should remain.

RECOMMENDATION 30

Section 4 of the DSA should be amended to clarify that the term “person with a disability” includes children, young persons and adults with a disability.

RECOMMENDATION 31

The DSA should be amended to include a special Part for children and young people with a disability. The new Part should include special additional principles and applications of principles for children and young people.

RECOMMENDATION 32

The principles for children and young people should mirror the principles in Schedule 1 to the DSA to state that children and young people with a disability have the same basic human and legal rights as other children and young people in Australian society. In addition, the principles should reflect the rights contained in the UN Convention on the Rights of the Child (“CROC”). These include the following:

• That children and young people with a disability should have the right to grow up in a family environment, in an atmosphere of happiness, love and understanding.
• Children and young people with a disability have the right to a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate active participation in the community.

RECOMMENDATION 33

The applications of principles in the new Part relating to children and young people should also reflect CROC and should include the following:

Programs and services shall recognise the special needs of children and young persons with a disability and shall be designed to ensure that the child or young person with a disability has effective access to, and receives, education, training, health care services, rehabilitation services, preparation for employment and recreational opportunities in a manner conducive to the child or young person achieving the fullest possible participation in community life and fullest possible individual development, including his or her cultural and spiritual development.

Programs and services must be designed and administered so as to recognise the importance to children and young persons with a disability of supporting family relationships and the cultural and linguistic environments of children and young persons with a disability.

RECOMMENDATION 34

It should be a condition of funding that service comply with the Children and Young Persons (Care and Protection) Act 1998 (NSW).

RECOMMENDATION 35

The new Part of the DSA relating to children and young people should outline the following hierarchy of support and placement options:

• in-home support for the child or young person;
• in-home placement and support with other members of the child’s or young person’s extended family;
• support for the child or young person in a shared care arrangement between the child’s or young person’s parents and/or extended family and/or a foster carer;
• support for the child or young person in an adoption or long term foster care placement; and
• support for the child or young person in an intimate residential care environment with not more than three other children and young people, with consistent adult carers, and in close proximity to the child’s or the young person’s parents and extended family.

RECOMMENDATION 36

The DSA should be amended to enable the Minister to:

• vary the terms or conditions of funding of a service;
• appoint an administrator to a service;
• stop a service from admitting any more clients;
• name a service in Parliament;
• conduct more frequent monitoring; and
• require a person receiving individual funding to seek help from a service to administer the funds.

RECOMMENDATION 37

ADD should develop protocols with the police, the Community Services Commission and the Department of Community Services for handling incidents where a person with a disability is assaulted, abused or neglected or at serious risk of harm.

The protocols should provide, among other things, that:

• ADD and the CSC should be notified whenever police are called to a service;
• the incident should be investigated by ADD or the CSC;
• the service should be registered as a service of concern with DisQAC and be subject to close monitoring; and
• emergency accommodation should be provided for persons with a disability who require it in these circumstances.

RECOMMENDATION 38 (page 153

Section 20 of the DSA and clause 6(1)(b) and (c) of the CAMA Regulation should be repealed and replaced by the following:

The DSA should be amended to include a section which provides that the following decisions are reviewable by the ADT:

• a decision by DisQAC:
– to certify or refuse to certify a Stage 1 or Stage 2 transition service;

– to certify or refuse to certify a new service as conforming with the objects, principles and applications of principles under the DSA; and

– that a service has or has not complied with the requirements of the quality assurance process.

• a decision by the Minister to:

  – vary the terms or conditions of funding;

  – appoint an administrator for a service;

  – stop a service from admitting any more clients; and

  – require a person receiving individual funding to seek help from a service to administer the funds.

RECOMMENDATION 39

The DSA should be amended to provide that the Minister may, through the Regulation, exempt a service from compliance with the objects, principles and applications of principles of the DSA, but only if he or she is satisfied that the service or class of services to be exempted is subject to standards comparable with the objects, principles and applications of principles, and an effective quality assurance process.

RECOMMENDATION 40

The Regulation should continue to provide for services provided or funded under the Home and Community Care Act 1985 (Cth), except those provided through the Home Care Service, to be excluded from the operation of the DSA.