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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales Disability Inclusion Bill 2014 Explanatory note This explanatory note relates to this Bill as introduced into Parliament. Overview of Bill The objects of this Bill are stated in proposed section 3 of the proposed Act, and include acknowledging that people with disability have the same human rights as other members of the community, promoting the independence and social and economic inclusion of people with disability, enabling people with disability to exercise choice and control in the pursuit of their goals, providing safeguards in relation to the delivery of supports and services for people with disability, supporting (to the extent practicable) the purposes and principles of the United Nations Convention on the Rights of Persons with Disabilities and providing for State responsibilities during and following the transition to the National Disability Insurance Scheme. The objects are to be achieved under the proposed Act primarily by: (a) stating the disability principles to which people exercising functions under the proposed Act, or providing supports or services to people with disability, are to have regard, and (b) providing for a State Disability Inclusion Plan to be prepared by the Department of Family and Community Services setting out whole of government goals that support the inclusion in the community of people with disability, and for each public authority to have a disability inclusion action plan setting out measures to ensure people with disability can access general supports and services available in the community, and (c) providing for the continuation of the Disability Council of New South Wales, and (d) providing for the making of service standards relating to the provision of supports and services for people with disability, and b2013-160-21.d24 Disability Inclusion Bill 2014 [NSW] Explanatory note (e) providing for the provision of supports and services, including financial assistance for individuals and certain entities to facilitate obtaining, or the provision of, supports and services, and (f) amending the Ombudsman Act 1974 to provide for a monitoring and investigative role for the Ombudsman in relation to certain reportable incidents occurring in supported group accommodation facilities of the Department or a funded provider. Outline of provisions Part 1 Preliminary Division 1 Introduction Clause 1 sets out the name (also called the short title) of the proposed Act. Clause 2 provides for the commencement of the proposed Act on a day or days to be appointed by proclamation. Division 2 Objects and principles Clause 3 specifies the objects of the proposed Act, which include acknowledging that people with disability have the same human rights as other members of the community, promoting the independence and social and economic inclusion of people with disability, enabling people with disability to exercise choice and control in the pursuit of their goals, providing safeguards in relation to the delivery of supports and services for people with disability, supporting (to the extent practicable) the purposes and principles of the United Nations Convention on the Rights of Persons with Disabilities and providing for State responsibilities during and following the transition to the National Disability Insurance Scheme. Clause 4 specifies for the purposes of the proposed Act the general principles relating to people with disability. Clause 5 specifies for the purposes of the proposed Act additional principles relating to certain people with disability who may have particular needs. Clause 6 provides that persons exercising functions, or providing supports or services to people with disability, under the proposed Act should have regard to the disability principles in the exercise of the function or the provision of supports and services. Division 3 Interpretation Clause 7 defines certain words and expressions used in the proposed Act. Part 2 Disability planning Division 1 Preliminary Clause 8 specifies the purpose of the proposed Part. Clause 9 provides that the Secretary may issue guidelines to assist public authorities in preparing disability inclusion action plans. This clause further provides that the Secretary must publish the guidelines on the website of the Department of Family and Community Services. Division 2 State Disability Inclusion Plan Clause 10 provides for a State plan (the State Disability Inclusion Plan) that is prepared by the Department of Family and Community Services and sets out whole of government goals that support the inclusion in the community of people with disability and improve access to mainstream services and community facilities and provides for collaboration and co-ordination Page 2 Disability Inclusion Bill 2014 [NSW] Explanatory note among various entities in the provision of supports and services. This clause further provides that the Minister is to table a copy of the plan in each House of Parliament. Clause 11 provides that the Minister is to review the State Disability Inclusion Plan at 4-year intervals and table a report on the outcome of the review in each House of Parliament. Division 3 Disability inclusion action plans Clause 12 provides that each public authority must have a plan (a disability inclusion action plan) that sets out the measures the authority intends to put in place (in connection with the exercise of its functions) so that people with disability can access general supports and services available in the community and can participate fully in the community. This clause further provides that each public authority must consult with people with disability and may consult with other persons or entities in preparing its disability inclusion action plan. This clause also provides for particular matters to be included in a disability inclusion action plan and for each public authority to give a copy of its plan to the Disability Council NSW and to make its plan publicly available. Clause 13 provides that each public authority that is a government department or a local council is to give the Minister a copy of the part of its annual report relating to the implementation of its disability inclusion action plan. This clause further provides that other public authorities are to give a report to the Minister about the authority's implementation of its disability inclusion action plan in each financial year. This clause further provides that the Minister is to table, annually in each House of Parliament, a report about the implementation of disability inclusion action plans. Clause 14 provides that each public authority is to review its disability inclusion action plan at 4-year intervals. This clause further provides that, in reviewing its disability inclusion action plan, each public authority must consult with people with disability and have regard to any guidelines issued by the Secretary under clause 9. Part 3 Disability Council NSW Clause 15 continues in existence the Disability Council of New South Wales as the Disability Council NSW (the Disability Council) under the proposed Act. Clause 16 provides for the membership of the Disability Council and for its chairperson and deputy chairperson. Clause 17 provides for the functions of the Disability Council. Clause 18 provides that the Minister may give assistance, including financial assistance, to the Disability Council. Clause 19 provides that the Disability Council is to give reports to the Minister about the exercise of its functions. Part 4 Service standards Clause 20 provides that the regulations may make provision for or with respect to standards relating to the provision of supports and services for people with disability. This clause further provides that the Secretary must make the standards publicly available. Clause 21 provides that the regulations may make provision for or with respect to standards relating to the provision of supports, services and accommodation for people with disability in supported group accommodation. This clause further provides that the Secretary must make the standards publicly available. Clause 22 defines supported group accommodation for the purposes of the proposed Act. Page 3 Disability Inclusion Bill 2014 [NSW] Explanatory note Part 5 Provision of supports and services Division 1 Preliminary Clause 23 provides that the purpose of proposed Part 5 is to facilitate the provision of supports and services to persons in the target group and the transition of funding for those persons to funding under the National Disability Insurance Scheme (NDIS). This clause further provides that the purpose is to be achieved by providing supports and services directly to persons in the target group and by providing financial assistance directly to individuals, or to eligible entities, for the purpose of providing supports and services during the transition period. Clause 24 defines person in the target group for the purposes of the proposed Act. Division 2 Supports and services provided by Secretary Clause 25 provides that the Secretary may provide supports and services directly or indirectly to persons in the target group. This clause further provides that the supports and services are to be provided in compliance with the disability service standards and may be provided in addition to any financial assistance provided under the proposed Part. Division 3 Financial assistance for individuals Clause 26 provides that the Secretary may give financial assistance to, or on behalf of, an individual who is a person in the target group. This clause further provides that the financial assistance may be given directly to the individual, to a person nominated by the individual or another person determined by the Secretary to be an appropriate person to receive the assistance on behalf of the individual, or to another entity for the purposes of administering the assistance (as directed by the individual) or for the purpose of providing supports and services specifically to the individual. The clause also provides that the financial assistance may be given to an individual or a non-government organisation only if the individual or organisation enters into an agreement with the Secretary in relation to the assistance. The clause further provides for matters to which the Secretary is to have regard in deciding whether to provide financial assistance and the conditions on which it is provided. Clause 27 requires notice to be given to an individual about a decision not to provide financial assistance to, or on behalf of, the individual under proposed Division 3 or to provide the assistance on behalf of the individual instead of directly to the individual. This clause also requires notice of a decision to provide financial assistance to an individual (or another person nominated by the individual or determined by the Secretary to be an appropriate person to receive the assistance on behalf of the individual) on conditions to be given to the person receiving the assistance, and for the notice to specify the reason for the decision and that the person may apply for a review of the decision. Clause 28 provides that the Secretary may enter into agreements in relation to the provision of financial assistance to an individual, or a person nominated by the individual, under proposed Division 3. This clause further states particular matters to be specified in the agreement. Division 4 Financial assistance for eligible entities Clause 29 provides that the Secretary may give financial assistance to an eligible entity to enable it to provide supports and services to persons in the target group. This clause further provides that financial assistance may be given to a non-government organisation only if the organisation has entered into an agreement with the Secretary in relation to the assistance. This clause also provides that the Secretary may require an eligible entity that is not a non-government organisation to enter into an agreement with the Secretary in relation to financial assistance given to it under proposed Division 4. Clause 30 provides that the Secretary may enter into agreements with eligible entities in relation to the provision of financial assistance under proposed Division 3 or 4. This clause further provides that an agreement entered into with a non-government organisation is subject to Page 4 Disability Inclusion Bill 2014 [NSW] Explanatory note conditions prescribed under the proposed Act, and states particular matters to be specified in the agreement. This clause also provides that a non-government organisation that is providing supports and services in supported group accommodation may be required to comply with the accommodation and service standards in providing the supports and services. Clause 31 provides that it is a condition of the provision of financial assistance to a non-government organisation that the organisation gives the Secretary evidence to show it can provide supports and services in compliance with the disability service standards. This clause further provides that it is a condition of the provision of financial assistance to any eligible entity that it must comply with the disability service standards in providing supports and services to persons in the target group. Clause 32 provides that it is a condition of the provision of financial assistance to an eligible entity that it must ensure that a person is not engaged as a worker or board member (if the person works directly with persons in the target group in a way that involves face to face or physical contact) unless it is satisfied the person is a suitable person to be involved in the provision of supports and services to persons in the target group. This clause further provides that the entity must ensure that a criminal record check is conducted or obtained in relation to such workers or board members before they are engaged, and further criminal record checks are obtained at least every 4 years. This clause also provides that (subject to specified exceptions) it is a condition of the provision of financial assistance to the entity that it must not engage such workers or board members if the worker or board member has been convicted of a prescribed criminal offence or refuses to obtain or submit to a criminal record check. This clause also provides for the regulations to prescribe matters relating to conducting or obtaining criminal record checks. Division 5 Suspending and terminating financial assistance Clause 33 provides that financial assistance provided under Part 5 of the proposed Act may be suspended on specified grounds (including grounds prescribed by the regulations). This clause further provides that notice of a decision to suspend the assistance must be given to the person or entity receiving the assistance, and that the person or entity may apply for a review of the decision. This clause also provides for the Secretary to further suspend the financial assistance on the specified grounds, and to arrange for alternative supports and services for a person in the target group while the assistance is suspended. Clause 34 provides that financial assistance provided under Part 5 of the proposed Act may be terminated on specified grounds (including grounds prescribed by the regulations). This clause further provides that, before termination of financial assistance, the Secretary must give notice of the proposed termination specifying the grounds for termination, when it is proposed to have effect and, if the proposed termination is for a reason other than the implementation of NDIS arrangements under the National Disability Insurance Scheme or another purpose prescribed by the regulations, inviting the person or entity receiving the assistance to give the Secretary a submission about the proposed termination. Before termination of the financial assistance, the Secretary must consider any submission received in accordance with this clause. This clause also provides that termination of financial assistance has effect despite any agreement relating to the assistance and that notice of a decision to terminate must be given to the person or entity receiving the assistance. Division 6 Review of decisions Clause 35 provides that particular decisions under Part 5 are administratively reviewable decisions for the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993. Division 7 Miscellaneous Clause 36 provides that the Secretary of the Department must ensure that a person is not engaged as a worker of the Department (if the person works directly with persons in the target group in a way that involves face to face or physical contact) unless the Secretary is satisfied the person is a Page 5 Disability Inclusion Bill 2014 [NSW] Explanatory note suitable person to be involved in the provision of supports and services to persons in the target group. This clause further provides that the Secretary must ensure that a criminal record check is conducted or obtained in relation to such workers before they are engaged by the Department, and further criminal record checks are conducted or obtained at least every 4 years. This clause also provides that the Secretary must not engage such workers if the worker has been convicted of a prescribed criminal offence or refuses to obtain or submit to a criminal record check. This clause also provides for the regulations to prescribe matters relating to conducting or obtaining criminal record checks. Clause 37 provides that the Secretary may give financial assistance, on the conditions the Secretary considers appropriate, to a government department, local council or other entity for the purpose of promoting the objects of the proposed Act. Clause 38 provides that the Secretary may, by notice, require a person to give the Secretary information or a document relating to the provision of financial assistance, obtaining or providing supports or services or the compliance with an agreement entered into under Part 5. This clause also specifies the matters to be included in the notice. Clause 39 provides that a person who, acting in good faith, gives information or a document as required under clause 38 is not liable to any civil or criminal action for giving the information or document and cannot be held to have breached any code of professional etiquette or ethics or to have breached standards of professional conduct as a result of giving the information or document. Clause 40 provides that a prohibition on employment under the proposed Act prevails to the extent of any inconsistency with any other Act or law. This clause further provides that the Industrial Relations Commission and any other court or tribunal does not have jurisdiction to order the reinstatement or re-employment of a person contrary to such a prohibition or to order the payment of damages or compensation for any removal of a person from employment prohibited under the proposed Act. Clause 41 provides that the Secretary may issue guidelines to assist eligible entities in relation to compliance with the prescribed condition about conducting probity checks. This clause further provides that the Secretary must publish the guidelines on the website of the Department of Family and Community Services. Part 6 Miscellaneous Clause 42 states that the proposed Act binds the Crown. Clause 43 provides for the delegation of the Minister's and Secretary's functions under the proposed Act. Clause 44 provides for the taking of proceedings under the proposed Act. Clause 45 provides that it is an offence (with a maximum penalty of 50 penalty units) for a person to disclose information obtained in connection with the administration or execution of the proposed Act unless the disclosure is made for reasons specified in the clause. Clause 46 limits liability for certain matters or things done or omitted to be done in good faith for the purpose of executing the proposed Act. Clause 47 provides that the objects of the proposed Act, the disability principles and the requirement for persons exercising a function, or providing supports and services, under the proposed Act to have regard to the disability principles do not give rise to, or cannot be taken into account in, any civil cause of action. The clause does not apply to a proceeding before the Civil and Administrative Tribunal on an application for an administrative review of a decision that, under the proposed Act, can be reviewed by the Tribunal. Clause 48 provides that Schedule 3 to the proposed Act contains provisions about dealing with particular accounts and funds relating to persons with disability. Clause 49 provides for the making of regulations for the purposes of the proposed Act. Clause 50 repeals the Disability Services Act 1993. Page 6 Disability Inclusion Bill 2014 [NSW] Explanatory note Clause 51 provides for a review of the proposed Act within 4 years from the date of assent to the proposed Act. Schedule 1 Provisions relating to Disability Council Schedule 1 contains provisions relating to membership and procedure of the Disability Council. Schedule 2 Prescribed criminal offences Schedule 2 specifies offences in relation to which a conviction will render a person unsuitable to be engaged to work directly with persons in the target group by an organisation receiving financial assistance under Part 5 of the proposed Act. Schedule 3 Residents' amenities accounts Schedule 3 contains provisions dealing with accounts and funds relating to people with disability who are residents of particular government residential centres. Schedule 4 Savings, transitional and other provisions Schedule 4 contains savings, transitional and other provisions consequent on the enactment of the proposed Act. Schedule 5 Amendment of Acts Schedule 5 makes consequential amendments to various Acts. This Schedule also amends the Ombudsman Act 1974 to insert proposed Part 3C in that Act. Proposed Part 3C provides for various matters relating to the occurrence of reportable incidents in supported group accommodation within the meaning of the proposed Act. Proposed sections 25O and 25P define certain words and expressions used in proposed Part 3C. Proposed section 25Q provides that the Ombudsman is to keep under review the systems of the Department and funded providers for preventing, handling and responding to reportable incidents. The Ombudsman may also require the Secretary or head of a funded provider to give information about the systems to the Ombudsman. Proposed section 25R imposes reporting obligations on the Secretary and heads of funded providers in relation to reportable allegations or reportable convictions of which the Secretary or head becomes aware. Proposed section 25S provides that the Ombudsman may exempt any class or kind of incident from being a reportable incident for the purposes of the proposed Part. Proposed section 25T provides that particular persons may disclose information about reportable incidents to the Ombudsman. Proposed section 25U provides that the Ombudsman may monitor the progress of investigations into reportable allegations or reportable convictions. This proposed section further provides that the Ombudsman or an officer of the Ombudsman may be present as an observer at interviews conducted in relation to an investigation and may confer about the conduct and progress of an investigation. This proposed section also provides for the Ombudsman to require the giving of information or documents to the Ombudsman. Proposed section 25V provides for the Secretary or head of a funded provider to give the Ombudsman a report about the conduct of an investigation of a reportable allegation or reportable conviction, and also provides for the Ombudsman to seek further information in relation to an investigation. Page 7 Disability Inclusion Bill 2014 [NSW] Explanatory note Proposed section 25W provides that the Ombudsman may conduct an investigation into reportable allegations or reportable convictions and may also conduct an investigation concerning any inappropriate handling of, or response to, a reportable allegation or reportable conviction. This proposed section further provides that the Ombudsman may exercise relevant powers under the Ombudsman Act 1974 in relation to such investigations. This proposed section also provides that the Ombudsman may require a deferral of an investigation being conducted by the Secretary or a funded provider. The proposed section also provides that the Ombudsman is to provide the Department or funded provider with recommendations for action in relation to particular matters relating to investigations. Proposed section 25X provides that other Acts or laws do not prevent the disclosure of information to the Ombudsman, and that liability is not incurred for such disclosure. Proposed section 25Y extends the application of proposed sections 25R and 25T to other public authorities within the meaning of the Ombudsman Act 1974, if the relevant reportable incident arises in the course of employment with the public authority. Proposed section 25Z applies, subject to modifications prescribed by the regulations, the provisions of the Ombudsman Act 1974 in relation to a matter arising under proposed Part 3C even if it does not involve the conduct of a public authority. Page 8 First print New South Wales Disability Inclusion Bill 2014 Contents Page Part 1 Preliminary Division 1 Introduction 1 Name of Act 2 2 Commencement 2 Division 2 Objects and principles 3 Objects of Act 2 4 General principles 2 5 Principles recognising the needs of particular groups 3 6 Having regard to disability principles 4 Division 3 Interpretation 7 Definitions 4 Part 2 Disability planning Division 1 Preliminary 8 Purpose of Part 6 9 Guidelines 6 b2013-160-21.d24 Disability Inclusion Bill 2014 [NSW] Contents Page Division 2 State Disability Inclusion Plan 10 Requirement for State Disability Inclusion Plan 6 11 Review of plan 6 Division 3 Disability inclusion action plans 12 Requirement for disability inclusion action plans 7 13 Report on implementation of plans 7 14 Review of plans 8 Part 3 Disability Council NSW 15 Continuation of Disability Council of New South Wales 9 16 Membership 9 17 Functions 9 18 Assistance to Disability Council 10 19 Reporting requirements 10 Part 4 Service standards 20 Disability service standards 11 21 Accommodation and service standards 11 22 Meaning of "supported group accommodation" 11 Part 5 Provision of supports and services Division 1 Preliminary 23 Purpose of Part 12 24 Meaning of "person in the target group" 12 Division 2 Supports and services provided by Secretary 25 Secretary may provide supports and services 12 Division 3 Financial assistance for individuals 26 Provision of financial assistance 13 27 Notice about provision of financial assistance 14 28 Agreement about financial assistance 14 Division 4 Financial assistance for eligible entities 29 Provision of financial assistance 15 30 Agreement about financial assistance 15 31 Conditions about disability service standards 15 32 Conditions about probity checks--eligible entities receiving financial assistance 16 Division 5 Suspending and terminating financial assistance 33 Suspension of financial assistance 17 34 Termination of financial assistance 18 Division 6 Review of decisions 35 Review of decisions by Civil and Administrative Tribunal 19 Page 2 Disability Inclusion Bill 2014 [NSW] Contents Page Division 7 Miscellaneous 36 Secretary to conduct probity check of particular departmental workers 19 37 Financial assistance to promote objects of Act 20 38 Giving information 20 39 Protection from liability for giving information 20 40 Relationship with other Acts and laws 21 41 Guidelines 21 Part 6 Miscellaneous 42 Act to bind Crown 22 43 Delegations 22 44 Proceedings for offence 22 45 Disclosure of information 22 46 Protection from personal liability 22 47 Sections 3-6 do not give rise to or affect a cause of action 22 48 Dealing with particular accounts and funds 22 49 Regulations 23 50 Repeal of Disability Services Act 1993 No 3 23 51 Review of Act 23 Schedule 1 Provisions relating to Disability Council 24 Schedule 2 Prescribed criminal offences 26 Schedule 3 Residents' amenities accounts 27 Schedule 4 Savings, transitional and other provisions 29 Schedule 5 Amendment of Acts 31 Page 3 New South Wales Disability Inclusion Bill 2014 No , 2014 A Bill for An Act relating to the accessibility of mainstream services and facilities, the promotion of community inclusion and the provision of funding, support and services for people with disability; and for other purposes. Disability Inclusion Bill 2014 [NSW] Part 1 Preliminary The Legislature of New South Wales enacts: 1 Part 1 Preliminary 2 Division 1 Introduction 3 1 Name of Act 4 This Act is the Disability Inclusion Act 2014. 5 2 Commencement 6 This Act commences on a day or days to be appointed by proclamation. 7 Division 2 Objects and principles 8 3 Objects of Act 9 The objects of this Act are as follows: 10 (a) to acknowledge that people with disability have the same human rights as 11 other members of the community and that the State and the community have a 12 responsibility to facilitate the exercise of those rights, 13 (b) to promote the independence and social and economic inclusion of people with 14 disability, 15 (c) to enable people with disability to exercise choice and control in the pursuit of 16 their goals and the planning and delivery of their supports and services, 17 (d) to provide safeguards in relation to the delivery of supports and services for 18 people with disability, 19 (e) to support, to the extent reasonably practicable, the purposes and principles of 20 the United Nations Convention on the Rights of Persons with Disabilities, 21 (f) to provide for responsibilities of the State during and following the transition 22 to the National Disability Insurance Scheme. 23 4 General principles 24 (1) For the purposes of this Act, the disability principles relating to people with 25 disability are the general principles set out in this section. 26 (2) People with disability have an inherent right to respect for their worth and dignity as 27 individuals. 28 (3) People with disability have the right to participate in and contribute to social and 29 economic life and should be supported to develop and enhance their skills and 30 experience. 31 (4) People with disability have the right to realise their physical, social, sexual, 32 reproductive, emotional and intellectual capacities. 33 (5) People with disability have the same rights as other members of the community to 34 make decisions that affect their lives (including decisions involving risk) to the full 35 extent of their capacity to do so and to be supported in making those decisions if they 36 want or require support. 37 (6) People with disability have the right to respect for their cultural or linguistic 38 diversity, age, gender, sexual orientation and religious beliefs. 39 Page 2 Disability Inclusion Bill 2014 [NSW] Part 1 Preliminary (7) The right to privacy and confidentiality for people with disability is to be respected. 1 Note. This principle does not affect the operation of Chapter 16A of the Children and Young 2 Persons (Care and Protection) Act 1998. The disability principles are principles that certain 3 entities have regard to under this Act (see section 6). 4 (8) People with disability have the right to live free from neglect, abuse and exploitation. 5 (9) People with disability have the right to access information in a way that is appropriate 6 for their disability and cultural background, and enables them to make informed 7 choices. 8 (10) People with disability have the same right as other members of the community to 9 pursue complaints. 10 (11) The crucial role of families, carers and other significant persons in the lives of people 11 with disability, and the importance of preserving relationships with families, carers 12 and other significant persons, is to be acknowledged and respected. 13 Note. The NSW Carers Charter under the Carers (Recognition) Act 2010 recognises the role 14 and contribution of carers to our community and to the people they care for. 15 (12) The needs of children with disability as they mature, and their rights as equal 16 members of the community, are to be respected. 17 (13) The changing abilities, strengths, goals and needs of people with disability as they 18 age are to be respected. 19 5 Principles recognising the needs of particular groups 20 (1) For the purposes of this Act, the disability principles relating to people with 21 disability also include the principles set out in this section. 22 (2) Supports and services provided to Aboriginal and Torres Strait Islander people with 23 disability are to be provided in a way that: 24 (a) recognises that Aboriginal and Torres Strait Islander people have a right to 25 respect and acknowledgment as the first peoples of Australia and for their 26 unique history, culture and kinship relationships and connection to their 27 traditional land and waters, and 28 (b) recognises that many Aboriginal and Torres Strait Islander people with 29 disability may face multiple disadvantage, and 30 (c) addresses that disadvantage and the needs of Aboriginal and Torres Strait 31 Islander people with disability, and 32 (d) is informed by working in partnership with Aboriginal and Torres Strait 33 Islander people with disability to enhance their lives. 34 (3) Supports and services provided to people with disability from culturally and 35 linguistically diverse backgrounds are to be provided in a way that: 36 (a) recognises that cultural, language and other differences may create barriers to 37 providing the supports and services, and 38 (b) addresses those barriers and the needs of those people with disability, and 39 (c) is informed by consultation with their communities. 40 (4) Supports and services provided to women with disability are to be provided in a way 41 that: 42 (a) recognises that women with disability may face multiple disadvantage and are 43 potentially more vulnerable to risk of abuse or exploitation, and 44 (b) addresses that disadvantage and risk, and the needs of women with disability, 45 and 46 (c) is informed by consultation with women with disability. 47 Page 3 Disability Inclusion Bill 2014 [NSW] Part 1 Preliminary (5) Supports and services provided to children with disability are to be provided in a way 1 that: 2 (a) recognises that a child with disability has the right to a full life in conditions 3 that ensure the child's dignity, promote self-reliance and facilitate the child's 4 active and full participation in family, cultural and social life, and 5 (b) recognises that children are more vulnerable to risk of abuse or exploitation, 6 and 7 (c) addresses that right and risk, and ensures the best interests of the child is the 8 primary concern in making decisions affecting the child while also respecting 9 the responsibilities, rights and duties of a parent or other person legally 10 responsible for the child in relation to giving appropriate direction and 11 guidance for the child's welfare, and 12 (d) respects the views of the child with disability (having regard to the child's age 13 and maturity). 14 (6) This section does not impose an obligation on anyone to provide supports and 15 services. 16 6 Having regard to disability principles 17 A person exercising a function under this Act, or providing supports or services to 18 people with disability in connection with the provision of financial assistance under 19 Part 5, should have regard to the disability principles in the exercise of the function 20 or the provision of the supports or services. 21 Note. Under section 12, a public authority's disability inclusion action plan must specify how 22 the public authority proposes to have regard to the disability principles in its dealings with 23 matters relating to people with disability. Under section 30 (2) (b), an agreement relating to the 24 provision of supports and services by an entity receiving financial assistance is to specify how 25 the entity intends to have regard to the disability principles in providing the supports and 26 services. 27 Division 3 Interpretation 28 7 Definitions 29 (1) In this Act: 30 accommodation and service standards--see section 21 (1). 31 carer means a carer within the meaning of the Carers (Recognition) Act 2010. 32 Department means the Department of Family and Community Services. 33 disability, in relation to a person, includes a long-term physical, psychiatric, 34 intellectual or sensory impairment that, in interaction with various barriers, may 35 hinder the person's full and effective participation in the community on an equal 36 basis with others. 37 Disability Council--see section 15 (1). 38 disability inclusion action plan--see section 12 (1). 39 disability principles--see sections 4 and 5. 40 disability service provider means: 41 (a) the part of the Department in which this Act is administered, or 42 (b) another eligible entity receiving financial assistance in accordance with 43 Division 3 or 4 of Part 5. 44 disability service standards--see section 20 (1). 45 eligible entity means: 46 (a) a Public Service agency, or 47 Page 4 Disability Inclusion Bill 2014 [NSW] Part 1 Preliminary (b) a local council, or 1 (c) another entity that is a corporation or body corporate, or 2 (d) an entity prescribed by the regulations to be an eligible entity for the purposes 3 of this definition. 4 function includes a power, authority or duty, and exercise a function includes 5 perform a duty. 6 government department means a Department of the Public Service listed in Part 1 of 7 Schedule 1 to the Government Sector Employment Act 2013. 8 guardian means a guardian within the meaning of section 3 (1) of the Guardianship 9 Act 1987. 10 National Disability Insurance Scheme means the National Disability Insurance 11 Scheme under the National Disability Insurance Scheme Act 2013 of the 12 Commonwealth. 13 NDIS arrangements has the meaning it has in the National Disability Insurance 14 Scheme (NSW Enabling) Act 2013. 15 non-government organisation means an eligible entity that is not a Public Service 16 agency. 17 person in the target group--see section 24. 18 prescribed conditions, in relation to financial assistance, means the conditions 19 referred to in sections 31 and 32. 20 public authority means all of the following: 21 (a) a government department, 22 (b) a local council, 23 (c) another entity prescribed by the regulations to be a public authority for the 24 purposes of this definition. 25 Public Service agency means a Public Service agency within the meaning of the 26 Government Sector Employment Act 2013. 27 Secretary means the Secretary of the Department. 28 service includes a service consisting of the supply of goods, whether or not provided 29 with other services. 30 State Disability Inclusion Plan--see section 10 (1). 31 supports means assistance provided to a person with disability to do one or more of 32 the following: 33 (a) to help the person undertake his or her day to day activities, 34 (b) to increase the person's independence, 35 (c) to facilitate the person's social and economic inclusion in the community. 36 supported group accommodation--see section 22. 37 (2) Notes included in this Act do not form part of this Act. 38 Page 5 Disability Inclusion Bill 2014 [NSW] Part 2 Disability planning Part 2 Disability planning 1 Division 1 Preliminary 2 8 Purpose of Part 3 The purpose of this Part is to provide for: 4 (a) the making of a plan setting out a co-ordinated whole of government approach 5 to creating a more inclusive community in which mainstream services and 6 community facilities are accessible to people with disability to help them 7 achieve their full potential, and 8 (b) the making of other plans setting out specific measures public authorities are 9 to put in place in relation to people with disability. 10 9 Guidelines 11 (1) The Secretary may issue guidelines to assist public authorities to prepare a disability 12 inclusion action plan. 13 (2) The Secretary must publish the guidelines on the Department's website. 14 Division 2 State Disability Inclusion Plan 15 10 Requirement for State Disability Inclusion Plan 16 (1) The Department must, from the day prescribed by the regulations, have a State plan 17 (the State Disability Inclusion Plan) that: 18 (a) sets out whole of government goals that support the inclusion in the 19 community of people with disability and improve access to mainstream 20 services and community facilities by people with disability, and 21 (b) provides for collaboration and co-ordination among government departments, 22 local councils and other entities in the provision of supports and services. 23 (2) In preparing the State Disability Inclusion Plan, the Department must consult with 24 people with disability. 25 (3) The Minister is to table a copy of the State Disability Inclusion Plan in each House 26 of Parliament as soon as practicable after the day prescribed under subsection (1). 27 (4) The State Disability Inclusion Plan may be a document or part of a document 28 prepared for another purpose if the document or part fulfils the requirements of 29 subsection (1). 30 (5) The Minister is to make the State Disability Inclusion Plan publicly available. 31 11 Review of plan 32 (1) The Minister is to review the State Disability Inclusion Plan before the end of each 33 4-year period after the day the Department is required to have the plan. 34 (2) The purpose of the review is to ensure that the whole of government goals set out in 35 the State Disability Inclusion Plan continue to support the inclusion in the 36 community of people with disability and to improve access to mainstream services 37 and community facilities by people with disability. 38 (3) A report on the outcome of the review is to be tabled in each House of Parliament as 39 soon as practicable after it is completed. 40 Page 6 Disability Inclusion Bill 2014 [NSW] Part 2 Disability planning Division 3 Disability inclusion action plans 1 12 Requirement for disability inclusion action plans 2 (1) Each public authority must, from the day prescribed by the regulations, have a plan 3 (a disability inclusion action plan) setting out the measures it intends to put in place 4 (in connection with the exercise of its functions) so that people with disability can 5 access general supports and services available in the community, and can participate 6 fully in the community. 7 (2) In preparing its disability inclusion action plan, a public authority: 8 (a) must consult with people with disability and have regard to any guidelines 9 issued under section 9, and 10 (b) may consult with individuals or other entities the authority considers 11 appropriate, including the Disability Council. 12 (3) A disability inclusion action plan must: 13 (a) specify how the public authority proposes to have regard to the disability 14 principles in its dealings with matters relating to people with disability, and 15 (b) include strategies to support people with disability, including, for example, 16 strategies about the following: 17 (i) providing access to buildings, events and facilities, 18 (ii) providing access to information, 19 (iii) accommodating the specific needs of people with disability, 20 (iv) supporting employment of people with disability, 21 (v) encouraging and creating opportunities for people with disability to 22 access the full range of services and activities available in the 23 community, and 24 (c) include details of the authority's consultation about the plan with people with 25 disability, and 26 (d) explain how the plan supports the goals of the State Disability Inclusion Plan, 27 and 28 (e) include any other matters prescribed by the regulations. 29 (4) A disability inclusion action plan may be a document or part of a document prepared 30 for another purpose if the Secretary is satisfied the document or part fulfils the 31 requirements of subsections (1) and (3). 32 (5) A public authority must, as soon as practicable after the day it is required to have a 33 disability inclusion action plan: 34 (a) give a copy of the plan to the Disability Council, and 35 (b) make the plan publicly available. 36 13 Report on implementation of plans 37 (1) A public authority that is a government department or local council must, as soon as 38 practicable after preparing its annual report, give the Minister a copy of the part of 39 the annual report relating to the department's or council's report on the 40 implementation of its disability inclusion action plan. 41 (2) A public authority that is not a government department or local council must, as soon 42 as practicable after the end of each financial year, give the Minister a report relating 43 to the authority's implementation of its disability inclusion action plan during the 44 financial year. 45 Page 7 Disability Inclusion Bill 2014 [NSW] Part 2 Disability planning (3) The Minister is to table a report about the implementation of disability inclusion 1 action plans in each House of Parliament as soon as practicable after the end of each 2 financial year. 3 (4) In this section: 4 annual report means: 5 (a) of a government department--its annual report under the Annual Reports 6 (Departments) Act 1985, and 7 (b) of a local council--its annual report under the Local Government Act 1993. 8 14 Review of plans 9 (1) A public authority must review its disability inclusion action plan before the end of 10 each 4-year period after the day the authority is required to have the plan. 11 (2) The purpose of the review is to ensure the disability inclusion action plan fulfils the 12 requirements of section 12 (1) and (3). 13 (3) In reviewing its disability inclusion action plan, the public authority must consult 14 with people with disability and have regard to any guidelines issued under section 9. 15 Page 8 Disability Inclusion Bill 2014 [NSW] Part 3 Disability Council NSW Part 3 Disability Council NSW 1 15 Continuation of Disability Council of New South Wales 2 (1) The former council is continued in existence under the name Disability Council 3 NSW (the Disability Council). 4 (2) In this section: 5 former council means the Disability Council of New South Wales established under 6 section 16 of the Community Welfare Act 1987. 7 16 Membership 8 (1) The Disability Council consists of at least 8 but not more than 12 persons appointed 9 by the Governor. 10 (2) The members of the Disability Council must include: 11 (a) members of, or persons employed by, organisations concerned especially with 12 the interests of people with disability, and 13 (b) other persons with appropriate skills and experience in matters relevant to the 14 interests of people with disability. 15 (3) The majority of members of the Disability Council must be people with disability. 16 (4) There is to be a chairperson and a deputy chairperson of the Disability Council. 17 (5) The chairperson is the member who: 18 (a) is a person with disability, and 19 (b) has the qualifications or experience, and is appointed in the way, prescribed by 20 the regulations. 21 (6) The deputy chairperson is the member appointed as the deputy chairperson in the 22 way prescribed by the regulations. 23 (7) Schedule 1 contains provisions relating to the membership and procedure of the 24 Disability Council. 25 17 Functions 26 (1) The Disability Council has the following functions: 27 (a) to monitor the implementation of government policy in relation to people with 28 disability and their families, 29 (b) to advise the Minister on emerging issues relating to people with disability, 30 (c) to advise public authorities about the content and implementation of disability 31 inclusion action plans, 32 (d) to advise the Minister about the content and implementation of the State 33 Disability Inclusion Plan and disability inclusion action plans, 34 (e) to promote the inclusion of people with disability in the community, 35 (f) to promote community awareness of matters concerning the interests of people 36 with disability and their families, 37 (g) to consult with the National People with Disabilities and Carer Council and 38 other similar bodies, 39 (h) to consult with people with disability and undertake research about matters 40 relating to people with disability, 41 (i) any other functions prescribed by the regulations. 42 Page 9 Disability Inclusion Bill 2014 [NSW] Part 3 Disability Council NSW (2) For the purpose of exercising its functions, the Disability Council may request 1 information or advice from any public authority. 2 (3) A public authority to which a request for information or advice is made is authorised 3 to comply with the request. 4 18 Assistance to Disability Council 5 The Minister may give assistance, including financial assistance, to the Disability 6 Council to ensure the proper exercise of its functions. 7 19 Reporting requirements 8 (1) The Disability Council must, if required by the Minister, give the Minister a report 9 about the exercise of its functions. 10 (2) The report must include information about the matters directed by the Minister. 11 (3) The report may contain other information or advice the Disability Council considers 12 appropriate. 13 Page 10 Disability Inclusion Bill 2014 [NSW] Part 4 Service standards Part 4 Service standards 1 Note. If disability service standards are made, compliance with the standards is a prescribed condition for 2 the provision of financial assistance, under Part 5, to particular entities. If accommodation and service 3 standards are made, compliance with the standards may be a condition of the provision of financial 4 assistance to non-government organisations. Compliance would be required only while financial assistance 5 is being provided. 6 20 Disability service standards 7 (1) The regulations may make provision for or with respect to standards (disability 8 service standards) relating to the provision of supports and services for people with 9 disability in order to improve the quality and effectiveness of the supports and 10 services. 11 (2) The Secretary must make the disability service standards publicly available. 12 21 Accommodation and service standards 13 (1) The regulations may make provision for or with respect to standards 14 (accommodation and service standards) relating to the provision of supports, 15 services and accommodation for people with disability in supported group 16 accommodation. 17 (2) The Secretary must make the accommodation and service standards publicly 18 available. 19 22 Meaning of "supported group accommodation" 20 (1) In this Act, supported group accommodation means premises in which: 21 (a) a person with disability is living in a shared living arrangement (whether 22 short-term or permanently) with at least one other person with disability, other 23 than an arrangement in which one or more of the persons with disability is 24 living with a guardian of the person or a member of the person's family who 25 is responsible for the care of the person, and 26 (b) support is provided on-site: 27 (i) for a fee, or 28 (ii) whether or not for a fee if the support is provided as respite care. 29 (2) Supported group accommodation includes premises, or a type of premises, 30 prescribed by the regulations to be supported group accommodation. 31 (3) However, supported group accommodation does not include: 32 (a) an assisted boarding house within the meaning of the Boarding Houses 33 Act 2012, or 34 (b) other premises, or a type of premises, prescribed by the regulations not to be 35 supported group accommodation. 36 (4) In this section: 37 respite care means short-term care for people with disability that is provided for the 38 purpose of relieving families or carers from their caring responsibilities in the 39 short-term before resuming their caring responsibilities at the end of the period of 40 care. 41 Page 11 Disability Inclusion Bill 2014 [NSW] Part 5 Provision of supports and services Part 5 Provision of supports and services 1 Division 1 Preliminary 2 23 Purpose of Part 3 (1) The purpose of this Part is to facilitate the provision of supports and services to 4 persons in the target group and the transition of funding for persons in the target 5 group to funding under the National Disability Insurance Scheme. 6 (2) The purpose is to be achieved by the provision of supports and services directly to 7 persons in the target group and the provision of financial assistance directly to 8 individuals, or to eligible entities (including the part of the Department in which this 9 Act is administered). 10 (3) Financial assistance under this Part, other than section 37, is only to be provided 11 during the transition to the National Disability Insurance Scheme. 12 24 Meaning of "person in the target group" 13 (1) A person in the target group is a person who has a disability, whether or not of a 14 chronic episodic nature, that: 15 (a) is attributable to an intellectual, cognitive, neurological, psychiatric, sensory 16 or physical impairment, or a combination of any of those impairments, and 17 (b) is permanent or likely to be permanent, and 18 (c) results in a significant reduction in the person's functional capacity in one or 19 more areas of major life activity, including, for example, communication, 20 social interaction, learning, mobility, decision-making, self-care and 21 self-management, and 22 (d) results in the need for support, whether or not of an ongoing nature. 23 (2) To remove any doubt, each of the following persons (within the meaning of the 24 Mental Health Act 2007) is a person in the target group if the person has a disability 25 referred to in subsection (1): 26 (a) an involuntary patient or a forensic patient, 27 (b) a person subject to a community treatment order, 28 (c) a person under detention in a mental health facility. 29 (3) A person in the target group includes a child under 6 years of age who has 30 developmental delay within the meaning of the National Disability Insurance 31 Scheme Act 2013 of the Commonwealth. 32 (4) To remove any doubt, a person with a permanent disability is a person in the target 33 group even if the severity of the person's impairment because of the disability may 34 diminish over time or the person's condition may improve. 35 Division 2 Supports and services provided by Secretary 36 25 Secretary may provide supports and services 37 (1) The Secretary may provide supports and services to persons in the target group. 38 (2) The supports and services may be provided directly to persons in the target group or 39 indirectly through other persons. 40 (3) The supports and services are to be provided in compliance with the disability service 41 standards. 42 Page 12 Disability Inclusion Bill 2014 [NSW] Part 5 Provision of supports and services (4) The Secretary may provide the supports and services in addition to the provision of 1 financial assistance under this Part. 2 Division 3 Financial assistance for individuals 3 26 Provision of financial assistance 4 (1) The Secretary may provide financial assistance to or on behalf of an individual who 5 is a person in the target group to enable the individual to obtain supports and services. 6 (2) Financial assistance may be provided in any of the following ways: 7 (a) directly to the individual, 8 (b) to a person nominated by the individual, or to a person otherwise nominated, 9 if the person is determined by the Secretary to be an appropriate person to 10 receive financial assistance on behalf of the individual (for example, a member 11 of the individual's family or a carer), 12 (c) to an eligible entity that is a plan manager for the purpose of administering, as 13 directed by the individual, the financial assistance, 14 (d) to an eligible entity for the purpose of providing supports and services 15 specifically to the individual, 16 (e) in a way that is a combination of the ways referred to in paragraphs (a)-(d). 17 (3) In deciding how to provide financial assistance under subsection (2), and the 18 conditions on which it is provided, the Secretary: 19 (a) must have regard to the wishes of the individual who is a person in the target 20 group, and 21 (b) if the individual is a managed person within the meaning of the NSW Trustee 22 and Guardian Act 2009--must have regard to the views of the person who is 23 the manager under that Act of the estate of the individual, and 24 (c) may have regard to the views of members of the individual's family, a carer or 25 guardian of the individual, an attorney to the individual under a power of 26 attorney, or any other person who is significant in the life of the individual, and 27 (d) may have regard to other matters the Secretary considers appropriate, 28 including, for example, the nature of the supports and services to be obtained 29 and any risks to the individual that may arise in providing assistance directly 30 to the individual. 31 (4) Financial assistance may be provided to a person referred to in subsection (2) (a) 32 or (b) only if the person has entered into an agreement under section 28 for the 33 assistance. 34 (5) Financial assistance may be provided to a non-government organisation only if the 35 organisation has entered into an agreement under section 30 for the assistance. 36 (6) The Secretary may require an eligible entity to which subsection (5) does not apply 37 to enter into an agreement in relation to financial assistance provided to it under this 38 Division. 39 (7) Financial assistance may be provided on the conditions the Secretary considers 40 appropriate, having regard to the circumstances of the individual who is a person in 41 the target group. 42 (8) Without limiting subsection (7), the circumstances may include the particular types 43 of supports or services that the individual can obtain and the types of eligible entity 44 from which the supports or services can be obtained. 45 Page 13 Disability Inclusion Bill 2014 [NSW] Part 5 Provision of supports and services (9) In this section: 1 plan manager means an eligible entity that provides a service of administering 2 individual funding for a person in the target group, whether or not it also provides a 3 service of co-ordinating supports and services for the person. 4 27 Notice about provision of financial assistance 5 (1) If the Secretary decides not to provide financial assistance under this Division to or 6 on behalf of an individual who is a person in the target group (in response to an 7 application for financial assistance), notice of the decision must be given to the 8 individual. 9 (2) If the Secretary decides to provide financial assistance to a person referred to in 10 section 26 (2) (a) or (b) subject to a condition, notice of the decision must be given 11 to the person specifying: 12 (a) the reason for the decision, and 13 (b) that the person may apply for a review of the decision and how to apply for the 14 review. 15 (3) If the Secretary decides to provide financial assistance on behalf of an individual who 16 is a person in the target group instead of directly to the individual, notice of the 17 decision must be given to the individual specifying: 18 (a) the reason for the decision, and 19 (b) that the individual may apply for a review of the decision and how to apply for 20 the review. 21 28 Agreement about financial assistance 22 (1) The Secretary may enter into an agreement with a person referred to in 23 section 26 (2) (a) or (b) in relation to the provision of financial assistance under this 24 Division. 25 (2) The agreement must specify the following: 26 (a) the nature of the supports and services to be obtained with the financial 27 assistance, 28 (b) the outcomes intended to be achieved by the provision of the supports and 29 services, 30 (c) the conditions, if any, on which the assistance is provided, 31 (d) the period for which the agreement is in force, 32 (e) other matters the Secretary considers appropriate. 33 (3) The agreement must include a plan setting out the goals and aspirations of the person 34 and including matters relevant to the provision of supports and services to the person 35 (for example, the person's preferred supports and services for achieving his or her 36 goals and any identified risks and safeguards associated with providing the supports 37 and services). 38 (4) The agreement may provide that the financial assistance is to cease if the Secretary 39 considers that it is no longer required because of the implementation of NDIS 40 arrangements. 41 (5) Subsections (2)-(4) do not limit the matters that may be included in an agreement. 42 Page 14 Disability Inclusion Bill 2014 [NSW] Part 5 Provision of supports and services Division 4 Financial assistance for eligible entities 1 29 Provision of financial assistance 2 (1) The Secretary may provide financial assistance to an eligible entity to enable it to 3 provide supports and services to persons in the target group. 4 (2) Financial assistance may be provided to a non-government organisation only if the 5 organisation has entered into an agreement under section 30 in relation to the 6 assistance. 7 (3) The Secretary may require an eligible entity to which subsection (2) does not apply 8 to enter into an agreement in relation to the financial assistance. 9 30 Agreement about financial assistance 10 (1) The Secretary may enter into an agreement with an eligible entity in relation to 11 financial assistance provided under Division 3 or 4. 12 (2) An agreement entered into with a non-government organisation: 13 (a) is subject to the prescribed conditions relating to the provision of financial 14 assistance to the organisation, and 15 (b) must specify the following: 16 (i) the rights of the persons in the target group in relation to the provision 17 of supports and services or otherwise, 18 (ii) how the organisation intends to have regard to the disability principles 19 in the provision of supports and services, 20 (iii) the purposes for which the financial assistance may be applied, 21 (iv) the particular amounts to be applied for those purposes, 22 (v) the outcomes to be achieved for persons in the target group as a result 23 of the provision by the organisation of the supports and services, 24 (vi) the performance indicators to be used to measure the outcomes achieved 25 for persons in the target group as a result of the provision of the supports 26 and services by the organisation, 27 (vii) the conditions, other than the prescribed conditions, of the agreement, 28 (viii) other matters prescribed by the regulations. 29 (3) If the non-government organisation is to provide supports and services that include 30 accommodation in supported group accommodation, it may be a condition of the 31 agreement that the organisation must comply with the accommodation and service 32 standards in providing the supports and services. 33 31 Conditions about disability service standards 34 (1) It is a condition of the provision of financial assistance to a non-government 35 organisation (other than an organisation prescribed by the regulations) that it must 36 give the Secretary evidence to show it has been assessed by another entity determined 37 by the Secretary as an entity that can provide supports and services in compliance 38 with the disability service standards. 39 (2) It is a condition of the provision of financial assistance to any eligible entity (other 40 than an entity prescribed by the regulations) that it must comply with the disability 41 service standards in providing supports and services to persons in the target group. 42 Page 15 Disability Inclusion Bill 2014 [NSW] Part 5 Provision of supports and services 32 Conditions about probity checks--eligible entities receiving financial assistance 1 (1) It is a condition of the provision of financial assistance to an eligible entity that the 2 requirements of this section relating to its relevant workers and relevant board 3 members must be complied with. 4 (2) The eligible entity must ensure a person is not engaged as a relevant worker or 5 relevant board member of the entity unless it is satisfied that the person is a suitable 6 person to be involved in the provision of supports and services to persons in the target 7 group. 8 (3) In deciding whether a person is a suitable person for the purposes of subsection (2), 9 the eligible entity must ensure that, before the person is engaged as a relevant worker 10 or relevant board member: 11 (a) a criminal record check is conducted or obtained in relation to the person, and 12 (b) the eligible entity obtains a reference for the relevant worker or relevant board 13 member from at least one referee nominated by the worker or member. 14 (4) The eligible entity must ensure that a further criminal record check is conducted or 15 obtained in relation to each relevant worker and relevant board member of the entity 16 at least every 4 years. 17 (5) The eligible entity must not engage or continue to engage a person as a relevant 18 worker if: 19 (a) the entity is satisfied, having regard to the person's criminal record check, that 20 the person has been convicted of a prescribed criminal offence, or 21 (b) the person refuses to obtain or submit to a criminal record check for the 22 purposes of this section. 23 (6) The eligible entity must ensure a person is not engaged, or allowed to continue to be 24 engaged, as a relevant board member of the entity if: 25 (a) the entity is satisfied, having regard to the person's criminal record check, that 26 the person has been convicted of a prescribed criminal offence, or 27 (b) the person refuses to obtain or submit to a criminal record check for the 28 purposes of this section. 29 (7) Despite subsection (5) (a), the eligible entity may engage or continue to engage a 30 person as a relevant worker if the engagement or continued engagement is in 31 accordance with: 32 (a) all of the following: 33 (i) the entity is satisfied, having regard to the person's criminal record 34 check, that the person has not been convicted of a prescribed sexual 35 offence as defined in the Criminal Procedure Act 1986, 36 (ii) if the person has been convicted of a prescribed criminal offence--the 37 person's criminal record check shows that the person has not been 38 convicted of any further prescribed criminal offences within 10 years 39 after the person's release from imprisonment in relation to that offence 40 (or within 10 years after the conviction if the person was not 41 imprisoned), 42 (iii) the entity is satisfied that the person is a suitable person to be involved 43 in the provision of supports and services to persons in the target group, 44 and 45 (b) any circumstances prescribed by the regulations. 46 (8) The regulations may make provision relating to obtaining and conducting criminal 47 record checks for the purposes of this section, including the use of a statutory 48 Page 16 Disability Inclusion Bill 2014 [NSW] Part 5 Provision of supports and services declaration to verify a person's criminal record when a criminal record check cannot 1 be conducted or obtained. 2 (9) If the regulations provide for the use of a statutory declaration to verify a person's 3 criminal record and an eligible entity uses a statutory declaration instead of a 4 criminal record check for the purposes of this section: 5 (a) a requirement in subsection (3) or (4) to conduct or obtain a criminal record 6 check is taken to be a requirement to obtain a statutory declaration about the 7 person's criminal record, and 8 (b) subsections (5) (a), (6) (a) and (7) (a) apply as if a reference in those 9 paragraphs to a criminal record check were a reference to a statutory 10 declaration, and 11 (c) subsections (5) (b) and (6) (b) apply as if the reference in those paragraphs to 12 obtain or submit to a criminal record check were a reference to provide a 13 statutory declaration. 14 (10) This section does not affect a person's engagement in any employment or role with 15 an eligible entity other than as a relevant worker or relevant board member. 16 (11) In this section: 17 prescribed criminal offence means: 18 (a) an offence stated in Schedule 2, or 19 (b) another offence prescribed by the regulations. 20 relevant board member of an entity means a person who is a member of the 21 governing body (whatever called) of the entity and who works, or is likely to work, 22 directly with persons in the target group in a way that involves face to face or 23 physical contact with those persons. 24 relevant worker of an eligible entity means a person who is engaged by the entity in 25 any of the following capacities to provide supports and services directly to persons 26 in the target group in a way that involves face to face or physical contact with those 27 persons: 28 (a) as an employee, 29 (b) as a volunteer, 30 (c) as a person undertaking training as part of an educational or vocational course 31 or program (other than a school student on work experience), 32 (d) as a self-employed person, contractor or subcontractor, 33 (e) as a person of a type prescribed by the regulations. 34 Division 5 Suspending and terminating financial assistance 35 33 Suspension of financial assistance 36 (1) The Secretary may, by notice served on a person or eligible entity receiving financial 37 assistance under this Part, suspend the assistance on any of the following grounds: 38 (a) the Secretary reasonably believes the person in the target group to, or on behalf 39 of, whom the assistance is provided: 40 (i) is no longer using the supports and services, or 41 (ii) is obtaining the supports and services other than by way of the financial 42 assistance, 43 (b) the Secretary reasonably believes the person or entity receiving the assistance 44 has not complied with: 45 (i) the prescribed conditions, if any, relating to the assistance, or 46 Page 17 Disability Inclusion Bill 2014 [NSW] Part 5 Provision of supports and services (ii) an agreement under which it is provided, or 1 (iii) a notice given under section 38, 2 (c) the grounds prescribed by the regulations. 3 (2) Notice of a decision to suspend financial assistance must specify: 4 (a) the reason for the decision and the period (not more than 90 days) during 5 which the assistance is suspended, and 6 (b) that the person or entity receiving the assistance may apply for a review of the 7 decision and how to apply for the review. 8 (3) Before the period referred to in subsection (2) (a) ends, the Secretary may suspend 9 the financial assistance for a further period in accordance with this section. 10 (4) If financial assistance is suspended under this section, the Secretary may arrange for 11 alternative supports and services for the relevant person in the target group while it 12 is suspended. 13 34 Termination of financial assistance 14 (1) The Secretary may, by notice served on a person or eligible entity receiving financial 15 assistance under this Part, terminate a part or all of the financial assistance on any of 16 the following grounds: 17 (a) the Secretary reasonably believes the person or eligible entity receiving the 18 assistance has not complied with: 19 (i) the prescribed conditions, if any, relating to the assistance, or 20 (ii) an agreement under which it is provided, or 21 (iii) a notice given under section 38, 22 (b) the Secretary considers that the assistance is no longer required because of the 23 implementation of NDIS arrangements, 24 (c) the grounds prescribed by the regulations. 25 (2) Before terminating the financial assistance, the Secretary must: 26 (a) give the person or eligible entity a notice that: 27 (i) specifies the reason for the proposed termination, and 28 (ii) specifies the day, that is reasonable in the circumstances, the 29 termination is to have effect, and 30 (iii) if the proposed termination is not for a prescribed purpose--invites the 31 person or entity to give the Secretary, within the reasonable period 32 specified in the notice, a submission about the termination, and 33 (b) consider any submission received in accordance with paragraph (a) (iii). 34 (3) The termination of financial assistance has effect despite any agreement entered into 35 under this Part by the person or eligible entity and the Secretary. 36 (4) Notice of a decision to terminate financial assistance must specify: 37 (a) the reason for the decision, and 38 (b) if the termination is other than for a prescribed purpose--that the person or 39 eligible entity receiving the assistance may apply for a review of the decision 40 and how to apply for the review. 41 (5) In this section: 42 prescribed purpose means the implementation of NDIS arrangements or another 43 purpose prescribed by the regulations to be a prescribed purpose. 44 Page 18 Disability Inclusion Bill 2014 [NSW] Part 5 Provision of supports and services Division 6 Review of decisions 1 35 Review of decisions by Civil and Administrative Tribunal 2 Each of the following decisions is an administratively reviewable decision for the 3 purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and 4 Monitoring) Act 1993: 5 (a) a decision under section 26 to impose a condition on the provision of financial 6 assistance to a person referred to in section 26 (2) (a) or (b), 7 (b) a decision under section 26 to provide financial assistance on behalf of an 8 individual who is a person in the target group instead of providing the 9 assistance directly to the individual, 10 (c) a decision under section 33 to suspend financial assistance, 11 (d) a decision under section 34 to terminate financial assistance if the termination 12 was other than for a prescribed purpose within the meaning of that section. 13 Division 7 Miscellaneous 14 36 Secretary to conduct probity check of particular departmental workers 15 (1) The Secretary must ensure that a person is not engaged as a relevant worker of the 16 Department unless the Secretary is satisfied that the person is a suitable person to be 17 involved in the provision of supports and services to persons in the target group. 18 (2) In deciding whether a person is a suitable person for the purposes of subsection (1), 19 the Secretary must ensure that, before the person is engaged as a relevant worker: 20 (a) a criminal record check is conducted or obtained in relation to the person, and 21 (b) the Secretary obtains a reference for the relevant worker from at least one 22 referee nominated by the worker. 23 (3) The Secretary must ensure that a further criminal record check is conducted or 24 obtained in relation to a relevant worker at least every 4 years. 25 (4) The Secretary must not engage or continue to engage a person as a relevant worker if: 26 (a) the Secretary is satisfied, having regard to the person's criminal record check, 27 that the person has been convicted of a prescribed criminal offence, or 28 (b) the person refuses to obtain or submit to a criminal record check for the 29 purposes of this section. 30 (5) The regulations may make provision relating to obtaining and conducting criminal 31 record checks for the purposes of this section, including the use of a statutory 32 declaration to verify a person's criminal record when a criminal record check cannot 33 be conducted or obtained. 34 (6) If the regulations provide for the use of a statutory declaration to verify a person's 35 criminal record and the Secretary uses a statutory declaration instead of a criminal 36 record check for the purposes of this section: 37 (a) a requirement in subsection (2) or (3) to conduct or obtain a criminal record 38 check is taken to be a requirement to obtain a statutory declaration about the 39 person's criminal record, and 40 (b) subsection (4) (a) applies as if the reference in that paragraph to a criminal 41 record check were a reference to a statutory declaration, and 42 (c) subsection (4) (b) applies as if the reference in that paragraph to obtain or 43 submit to a criminal record check were a reference to provide a statutory 44 declaration. 45 Page 19 Disability Inclusion Bill 2014 [NSW] Part 5 Provision of supports and services (7) This section does not affect a person's engagement in any employment or role with 1 the Department other than as a relevant worker. 2 (8) In this section: 3 prescribed criminal offence has the same meaning as in section 32. 4 relevant worker of the Department means a person who is engaged by the 5 Department in any of the following capacities to provide supports and services 6 directly to persons in the target group in a way that involves face to face or physical 7 contact with those persons: 8 (a) as a Public Service employee within the meaning of the Government Sector 9 Employment Act 2013, 10 (b) as a volunteer, 11 (c) as a person undertaking training as part of an educational or vocational course 12 or program (other than a school student on work experience), 13 (d) as a self-employed person, contractor or subcontractor, 14 (e) as a person of a type prescribed by the regulations. 15 37 Financial assistance to promote objects of Act 16 (1) The Secretary may provide financial assistance to a government department, local 17 council or another entity for the purpose of promoting the objects of this Act. 18 (2) The financial assistance may be provided in relation to a particular matter, and 19 subject to the conditions, the Secretary considers appropriate. 20 38 Giving information 21 (1) This section applies if the Secretary reasonably believes a person receiving, or 22 seeking to receive, financial assistance under this Part has information or a document 23 in the person's possession or control relating to: 24 (a) the provision of the financial assistance, or 25 (b) obtaining or providing supports or services with the financial assistance, or 26 (c) compliance with the person's agreement entered into under this Part in relation 27 to the financial assistance. 28 (2) The Secretary may, by notice given to the person, require the person to give the 29 information or document to the Secretary. 30 (3) The notice must specify: 31 (a) the nature of the information or document, and 32 (b) how the person is to give the information or document, and 33 (c) the reasonable period, of at least 14 days, within which the information or 34 document, is to be given. 35 (4) The person must comply with the notice. 36 Note. It is an offence under section 307B of the Crimes Act 1900 to give false or misleading 37 information to a person exercising a power, authority, duty or function under, or in connection 38 with, a law of the State. 39 39 Protection from liability for giving information 40 If a person, acting in good faith, gives information or a document in accordance with 41 section 38, the person: 42 (a) is not liable to any civil or criminal action for giving the information or 43 document, and 44 Page 20 Disability Inclusion Bill 2014 [NSW] Part 5 Provision of supports and services (b) cannot be held to have breached any code of professional etiquette or ethics or 1 departed from any accepted standards of professional conduct as a result of 2 giving the information or document. 3 40 Relationship with other Acts and laws 4 (1) A prohibition on employment under this Act prevails to the extent of any 5 inconsistency between it and any other Act or law. 6 (2) The Industrial Relations Commission or any other court or tribunal does not have 7 jurisdiction under any Act or law to order: 8 (a) the reinstatement or re-employment of a person or worker contrary to a 9 prohibition on employment imposed by this Act, or 10 (b) the payment of damages or compensation for any removal of a person from 11 employment prohibited under this Act. 12 41 Guidelines 13 (1) The Secretary may issue guidelines to assist eligible entities in relation to compliance 14 with the prescribed condition under section 32. 15 (2) The Secretary must publish the guidelines on the Department's website. 16 Page 21 Disability Inclusion Bill 2014 [NSW] Part 6 Miscellaneous Part 6 Miscellaneous 1 42 Act to bind Crown 2 This Act binds the Crown in right of New South Wales and, in so far as the legislative 3 power of the Parliament of New South Wales permits, the Crown in all its other 4 capacities. 5 43 Delegations 6 (1) The Minister may delegate to the Secretary any of the Minister's functions under this 7 Act, other than this power of delegation. 8 (2) The Secretary may delegate to an appropriately qualified employee of the 9 Department any of the Secretary's functions under this Act. 10 (3) However, the Secretary may delegate a function delegated to the Secretary under 11 subsection (1) only if authorised in writing to do so by the Minister. 12 44 Proceedings for offence 13 Proceedings for an offence under this Act may be dealt with summarily before the 14 Local Court. 15 45 Disclosure of information 16 A person must not disclose information obtained in connection with the 17 administration or execution of this Act unless the disclosure is made: 18 (a) with the consent of the person from whom the information was obtained, or 19 (b) in connection with the administration or execution of this Act, or 20 (c) for the purposes of legal proceedings arising out of this Act or of any report of 21 the proceedings, or 22 (d) in accordance with a requirement imposed under the Ombudsman Act 1974, or 23 (e) with other lawful excuse. 24 Maximum penalty: 50 penalty units. 25 46 Protection from personal liability 26 A matter or thing done or omitted to be done by the Minister or another person does 27 not, if the matter or thing was done or omitted to be done in good faith for the purpose 28 of executing this Act, subject the Minister or person so acting personally to any 29 action, liability, claim or demand. 30 47 Sections 3-6 do not give rise to or affect a cause of action 31 (1) Nothing in sections 3-6 nor in any application of those sections by this Act gives rise 32 to, or can be taken into account in, any civil cause of action. 33 (2) In this section: 34 civil cause of action does not include a proceeding before the Civil and 35 Administrative Tribunal on an application for an administrative review of a decision 36 referred to in section 35. 37 48 Dealing with particular accounts and funds 38 Schedule 3 contains provisions about dealing with particular accounts and funds 39 relating to people with disability who are residents of government residential centres 40 as defined under clause 1 of that Schedule. 41 Page 22 Disability Inclusion Bill 2014 [NSW] Part 6 Miscellaneous 49 Regulations 1 The Governor may make regulations, not inconsistent with this Act, for or with 2 respect to any matter that by this Act is required or permitted to be prescribed or that 3 is necessary or convenient to be prescribed for carrying out or giving effect to this 4 Act. 5 50 Repeal of Disability Services Act 1993 No 3 6 The Disability Services Act 1993 is repealed. 7 51 Review of Act 8 (1) The Minister is to review this Act to determine whether the policy objectives of the 9 Act remain valid and whether the terms of the Act remain appropriate for securing 10 those objectives. 11 (2) The review is to be undertaken as soon as possible after the period of 4 years from 12 the date of assent to this Act. 13 (3) A report on the outcome of the review is to be tabled in each House of Parliament 14 within 12 months after the end of the period of 4 years. 15 Page 23 Disability Inclusion Bill 2014 [NSW] Schedule 1 Provisions relating to Disability Council Schedule 1 Provisions relating to Disability Council 1 (Section 16 (7)) 2 Part 1 General 3 1 Definitions 4 In this Schedule: 5 council means the Disability Council. 6 member means a member of the council. 7 Part 2 Members 8 2 Terms of office of members, chairperson and deputy chairperson 9 (1) A member holds office for the period (not exceeding 4 years) specified in the 10 member's instrument of appointment, but is eligible (if otherwise qualified) for 11 re-appointment. 12 (2) The chairperson and deputy chairperson of the council each hold office for the period 13 (not more than one year) specified in the chairperson's or deputy chairperson's 14 instrument of appointment, but are eligible for re-appointment. 15 (3) This clause applies subject to this Schedule and the regulations. 16 3 Remuneration of members 17 A member is entitled to be paid the remuneration (including travelling and 18 subsistence allowances) as the Minister may from time to time determine in respect 19 of the member. 20 4 Vacancy in office of member 21 (1) The office of a member becomes vacant if the member: 22 (a) dies, or 23 (b) completes a term of office and is not re-appointed, or 24 (c) resigns the office by instrument in writing addressed to the Minister, or 25 (d) is removed from office by the Governor, or 26 (e) is absent from 4 consecutive meetings of the council of which reasonable 27 notice has been given to the member personally or by post, except on leave 28 granted by the council or unless the member is excused by the council for 29 having been absent from those meetings, or 30 (f) becomes bankrupt, applies to take the benefit of any law for the relief of 31 bankrupt or insolvent debtors, compounds with his or her creditors or makes 32 an assignment of his or her remuneration for their benefit, or 33 (g) can no longer exercise the functions of a member, or 34 (h) is convicted in New South Wales of an offence that is punishable by 35 imprisonment for 12 months or more or is convicted elsewhere than in New 36 South Wales of an offence that, if committed in New South Wales, would be 37 an offence so punishable. 38 (2) The Governor may remove a member from office at any time. 39 Page 24 Disability Inclusion Bill 2014 [NSW] Schedule 1 Provisions relating to Disability Council 5 Filling of vacancy in office of member 1 If the office of any member becomes vacant, a person is, subject to this Act, to be 2 appointed to fill the vacancy. 3 6 Effect of certain other Acts 4 (1) The provisions of the Government Sector Employment Act 2013 relating to the 5 employment of Public Service employees do not apply to or in respect of the 6 appointment of a member. 7 (2) If by or under any Act provision is made: 8 (a) requiring a person who is the holder of a specified office to devote the whole 9 of his or her time to the duties of that office, or 10 (b) prohibiting the person from engaging in employment outside the duties of that 11 office, 12 the provision does not operate to disqualify the person from holding that office and 13 also the office of a member or from accepting and retaining any allowance payable 14 to the person under this Act as a member. 15 Part 3 Procedure 16 7 General procedure 17 The procedure for calling meetings of the council and for the conduct of business at 18 the meetings is, subject to this Schedule and the regulations, to be determined by the 19 council. 20 8 Quorum 21 The quorum for a meeting of the council is a majority of the members (including the 22 chairperson) for the time being. 23 9 Presiding member 24 (1) The chairperson of the council is to preside at a meeting of the council. 25 (2) In the absence of the chairperson, the deputy chairperson is to preside at a meeting 26 of the council. 27 (3) In the absence of the chairperson and the deputy chairperson, a member elected to 28 chair the meeting by the members present is to preside at a meeting of the council. 29 (4) The person presiding has a deliberative vote and, in the event of an equality of votes, 30 has a second or casting vote. 31 10 Voting 32 A decision supported by a majority of the votes cast at a meeting of the council at 33 which a quorum is present is the decision of the council. 34 11 First meeting 35 The Minister may call the first meeting of the council in such manner as the Minister 36 thinks fit. 37 Page 25 Disability Inclusion Bill 2014 [NSW] Schedule 2 Prescribed criminal offences Schedule 2 Prescribed criminal offences 1 (Section 32 (11)) 2 Prescribed criminal offences 3 (1) For the purposes of paragraph (a) of the definition of prescribed criminal offence in 4 section 32 (11) of this Act, the following offences are prescribed criminal offences: 5 (a) murder, 6 (b) a prescribed sexual offence as defined in the Criminal Procedure Act 1986, 7 (c) an offence under any of the following provisions of Part 3 of the Crimes 8 Act 1900 for which the offender has been sentenced to 2 or more years 9 imprisonment: 10 (i) sections 26-30, 11 (ii) section 33, 12 (iii) sections 35 and 35A, 13 (iv) sections 37 and 38, 14 (v) section 39, 15 (vi) section 44, 16 (vii) sections 56-59A, 17 (viii) section 61, 18 (d) an offence under section 98 of the Crimes Act 1900 for which the offender has 19 been sentenced to 2 or more years imprisonment, 20 (e) an offence under section 13 or 14 of the Crimes (Domestic and Personal 21 Violence) Act 2007 for which the offender has been sentenced to 2 or more 22 years imprisonment. 23 (2) A prescribed criminal offence includes an offence committed outside of the State 24 that, if it had been committed in the State, would have constituted an offence of a 25 kind referred to in subclause (1). 26 Page 26 Disability Inclusion Bill 2014 [NSW] Schedule 3 Residents' amenities accounts Schedule 3 Residents' amenities accounts 1 (Section 48) 2 1 Definitions 3 In this Schedule: 4 amenities includes supports and services. 5 government residential centre means: 6 (a) Kanangra Centre, Morisset, or 7 (b) Marsden Centre, Westmead, or 8 (c) Riverside Centre, Orange, or 9 (d) Rydalmere Centre, Rydalmere, or 10 (e) Stockton Centre, Stockton, or 11 (f) Tomaree Centre, Shoal Bay, or 12 (g) any other residential institution (whether still operating or not) that was 13 operated by the Minister for Health before 1 July 1989 for the benefit of 14 individual residents with disability. 15 resident of a government residential centre means a resident of the centre with 16 disability. 17 residents' amenities account, in relation to a government residential centre, means 18 any account (whatever called) or any fund established in respect of the centre before 19 1 July 1989: 20 (a) in which money is held for the purpose of providing funds for the provision of 21 amenities to be used for the benefit of residents of the centre, and 22 (b) in respect of which the money or some of the money held in the account or 23 fund has been derived (whether in the form of income or capital gain) from the 24 investment of money in accounts held on behalf of residents. 25 2 Use of money held in residents' amenities accounts if centre still operating 26 (1) This clause applies in respect of a residents' amenities account maintained in respect 27 of a government residential centre if the centre is operating at the commencement of 28 this Schedule and has not since ceased to operate. 29 (2) The person in charge of the government residential centre may use money held in the 30 residents' amenities account for the purpose of providing amenities for the benefit of 31 residents of the centre, but only in accordance with a scheme approved by the 32 Secretary. 33 (3) Money held in the residents' amenities account may be used for the provision of 34 amenities at the government residential centre even though the persons who will 35 benefit from the amenities may not have been residents of the centre when the money 36 was originally credited to the account. 37 (4) A scheme for the use of money held in a residents' amenities account must specify: 38 (a) the outcomes expected to be achieved from the use of the money, and 39 (b) the performance indicators to be used to determine whether or not the 40 outcomes are achieved, and 41 (c) the period within which the outcomes are expected to be achieved. 42 Page 27 Disability Inclusion Bill 2014 [NSW] Schedule 3 Residents' amenities accounts (5) The Secretary may approve a scheme for the use of money held in a residents' 1 amenities account for a government residential centre only: 2 (a) after consultation with: 3 (i) persons who are residents of the centre, and 4 (ii) persons who the Secretary considers are concerned with the welfare of 5 the residents and represent the interests of some or all of the residents, 6 and 7 (b) if satisfied that the money will be used in accordance with the objects of this 8 Act. 9 3 Use of money held in residents' amenities accounts if centre no longer operates 10 (1) This clause applies in respect of a residents' amenities account maintained in respect 11 of a government residential centre if the centre has ceased to operate since 12 30 June 1989 or ceases to operate after the commencement of this Schedule. 13 (2) The Secretary may pay money held in the residents' amenities account: 14 (a) to a person in charge of a government residential centre that is still operating 15 so that the money may be used in accordance with a scheme approved for the 16 centre under clause 2, or 17 (b) to a person in charge of premises under the control of the Secretary that are 18 used for the purpose of providing accommodation, supports or services to 19 residents of the premises so that the money can be used for the benefit of the 20 residents. 21 (3) The Secretary may pay money under subclause (2) only if satisfied that the money 22 will be used in accordance with the objects of this Act. 23 (4) The Secretary may impose conditions on the use of money paid to a person in charge 24 of premises referred to in subclause (2) (b). 25 (5) A person in charge of a government residential centre who is paid money under 26 subclause (2) (a) must use the money only in accordance with the scheme approved 27 for the centre. 28 (6) A person in charge of premises referred to in subclause (2) (b) who is paid money 29 under that paragraph must use the money in accordance with any conditions imposed 30 under subclause (4). 31 4 Investment of money pending its use 32 Pending its use in accordance with clause 2 or 3, money held in a residents' amenities 33 account may be invested in any way authorised for the investment of trust funds. 34 Page 28 Disability Inclusion Bill 2014 [NSW] Schedule 4 Savings, transitional and other provisions Schedule 4 Savings, transitional and other provisions 1 Part 1 General 2 1 Regulations 3 (1) The regulations may contain provisions of a savings or transitional nature consequent 4 on the enactment of this Act or any Act that amends this Act. 5 (2) Any such provision may, if the regulations so provide, take effect from the date of 6 assent to the Act concerned or a later date. 7 (3) To the extent to which any such provision takes effect from a date that is earlier than 8 the date of its publication on the NSW legislation website, the provision does not 9 operate so as: 10 (a) to affect, in a manner prejudicial to any person (other than the State or an 11 authority of the State), the rights of that person existing before the date of its 12 publication, or 13 (b) to impose liabilities on any person (other than the State or an authority of the 14 State) in respect of anything done or omitted to be done before the date of its 15 publication. 16 Part 2 Provisions consequent on enactment of this Act 17 2 Definition 18 In this Part: 19 repealed Act means the repealed Disability Services Act 1993. 20 3 Application of provisions about probity checks 21 (1) Section 32 of this Act does not apply to an organisation receiving financial assistance 22 under Division 2 of Part 2 of the repealed Act immediately before the 23 commencement of section 32 of this Act until the day (not more than one year after 24 that commencement) prescribed by the regulations. 25 (2) Section 36 of this Act does not apply to the Secretary until the day (not more than 26 one year after the commencement of that section) prescribed by the regulations. 27 4 Continuation of financial assistance and agreements 28 (1) An individual or organisation receiving financial assistance under Division 2 of 29 Part 2 of the repealed Act immediately before the commencement of section 29 of 30 this Act is taken to be receiving the financial assistance under this Act. 31 (2) Unless the regulations otherwise provide, the financial assistance is provided subject 32 to: 33 (a) the conditions to which the provision of the assistance was subject 34 immediately before that commencement, and 35 (b) for assistance provided to an organisation--the prescribed conditions. 36 (3) For the purposes of this Act, and subject to subclause (2), an agreement entered into 37 with the Minister under section 17 of the repealed Act and in force immediately 38 before the commencement of section 29 of this Act: 39 (a) is taken to be an agreement entered into with the Secretary under: 40 (i) if the agreement was entered into with an individual--section 28 of this 41 Act, or 42 Page 29 Disability Inclusion Bill 2014 [NSW] Schedule 4 Savings, transitional and other provisions (ii) if the agreement was entered into with an organisation--section 30 of 1 this Act, and 2 (b) is taken to comply with any requirements relating to the agreement under 3 section 28 or 30. 4 (4) This clause is subject to clause 3. 5 5 Membership of Disability Council 6 (1) A person who was a member of the former council immediately before the 7 commencement of section 15 of this Act is taken to be a member of the Disability 8 Council. 9 (2) The person who was chairperson of the former council immediately before that 10 commencement is taken to be the chairperson of the Disability Council. 11 (3) The person who was deputy chairperson of the former council immediately before 12 that commencement is taken to be the deputy chairperson of the Disability Council. 13 (4) The term of office, as a member of the Disability Council, of a person referred to in 14 subclause (1) ends on the day it would have ended under the person's instrument of 15 appointment to the former council, unless sooner ended under this Act. 16 (5) The term of office, as the chairperson or deputy chairperson of the Disability 17 Council, of a person referred to in subclause (2) or (3) ends on the day a member of 18 the Disability Council is first appointed as the chairperson or deputy chairperson 19 under this Act. 20 (6) A person referred to in subclause (2) or (3) may be re-appointed as the chairperson 21 or deputy chairperson of the Disability Council. 22 (7) In this clause: 23 former council has the meaning it has in section 15 (2). 24 6 Schemes relating to residents' amenities accounts 25 A scheme approved by the Minister under clause 2 of Schedule 3 to the repealed Act 26 and in effect immediately before the commencement of Schedule 3 to this Act is 27 taken to be a scheme approved by the Secretary under clause 2 of Schedule 3 to this 28 Act. 29 Page 30 Disability Inclusion Bill 2014 [NSW] Schedule 5 Amendment of Acts Schedule 5 Amendment of Acts 1 5.1 Carers (Recognition) Act 2010 No 20 2 Section 5 Meaning of "carer" 3 Omit section 5 (1) (a). Insert instead: 4 (a) is a person with disability within the meaning of the Disability Inclusion 5 Act 2014, or 6 5.2 Community Services (Complaints, Reviews and Monitoring) Act 1993 7 No 2 8 [1] Section 4 Definitions 9 Omit "Disability Services Act 1993" from paragraph (e) of the definition of community 10 welfare legislation in section 4 (1). 11 Insert instead "Disability Inclusion Act 2014". 12 [2] Section 28 Applications to Tribunal for administrative reviews of decisions 13 Omit "section 20 of the Disability Services Act 1993" from section 28 (1) (a). 14 Insert instead "section 35 of the Disability Inclusion Act 2014". 15 [3] Section 34C Establishment and composition of the Team 16 Omit "Disability Services Act 1993" from section 34C (4) (g). 17 Insert instead "Disability Inclusion Act 2014". 18 [4] Section 35 Application of Part 19 Omit "in a target group within the meaning of the Disability Services Act 1993" from 20 section 35 (1) (g). 21 Insert instead "a person in the target group within the meaning of the Disability Inclusion 22 Act 2014". 23 5.3 Community Welfare Act 1987 No 52 24 [1] Section 3 Definitions 25 Omit the definitions of council and Disability Council from section 3 (1). 26 [2] Section 7 Assistance funds for community welfare and social development 27 programs 28 Omit "Division 2 of Part 2 of the Disability Services Act 1993" from section 7 (3A). 29 Insert instead "Part 5 of the Disability Inclusion Act 2014". 30 [3] Part 2, Division 2, heading 31 Omit "Council and committees". Insert instead "Committees". 32 [4] Section 16 Disability Council of New South Wales 33 Omit the section. 34 [5] Section 18 Assistance to committees 35 Omit "the council or" from section 18 (1). 36 Page 31 Disability Inclusion Bill 2014 [NSW] Schedule 5 Amendment of Acts [6] Section 19 1 Omit the section. Insert instead: 2 19 Reports 3 (1) Each committee must give the Minister, at the times and in respect of the 4 periods the Minister directs, reports on the activities of the committee. 5 (2) A report must deal with the matters the Minister directs and the other matters 6 the committee considers appropriate to include in the report. 7 [7] Section 78 Regulations 8 Omit "the council or" from section 78 (1) (a). 9 [8] Schedule 1 Constitution of council 10 Omit the Schedule. 11 [9] Schedule 2, heading 12 Omit "council and". 13 [10] Schedule 2 14 Omit "(Sections 14, 15, 16, 17)". Insert instead "(Section 17)". 15 [11] Schedule 2, clause 1 16 Omit "the council or". 17 [12] Schedule 2, clause 2 18 Omit the clause. Insert instead: 19 2 Quorum 20 The quorum for a meeting of a committee is a majority of the members of the 21 committee. 22 [13] Schedule 2, clauses 3, 4, 9 and 12 23 Omit "the council or" wherever occurring. Insert instead "a". 24 [14] Schedule 2, clause 5 25 Omit the clause. Insert instead: 26 5 Voting 27 A decision supported by a majority of votes cast at a meeting of a committee 28 at which a quorum is present is the decision of the committee. 29 [15] Schedule 2, clause 7 30 Omit the clause. Insert instead: 31 7 Meetings 32 The frequency of meetings of a committee and the procedures for the conduct 33 of business at the meetings is, subject to any directions of the Minister, as 34 determined by the committee. 35 Page 32 Disability Inclusion Bill 2014 [NSW] Schedule 5 Amendment of Acts [16] Schedule 2, clause 8 1 Omit the clause. Insert instead: 2 8 Minutes 3 The chairperson of a committee must cause minutes of the proceedings and 4 decisions at each meeting of the committee to be kept, and must give a copy 5 of the minutes to the Secretary as soon as practicable after each meeting. 6 [17] Schedule 2, clause 10 7 Omit the clause. Insert instead: 8 10 Subcommittees 9 (1) A committee may establish subcommittees (whether or not consisting of 10 members of the committee) for the purpose of advising the committee about 11 matters within the scope of the committee's functions as may be referred to the 12 subcommittee by the committee. 13 (2) The convenor of a subcommittee must be a member of the committee that 14 establishes it. 15 [18] Schedule 2, clause 11 16 Omit the clause. Insert instead: 17 11 Representatives of departments and authorities 18 A committee may invite representatives of other organisations (including State 19 or Commonwealth departments and public or local authorities) to participate, 20 but not vote, in the proceedings and deliberations of the committee. 21 [19] Schedule 2, clause 13 22 Omit "the council or committee in the same way as they apply to the council or". 23 Insert instead "a committee in the same way as they apply to the". 24 5.4 Coroners Act 2009 No 41 25 [1] Section 24 Jurisdiction concerning deaths of children and disabled persons 26 Omit "Disability Services Act 1993" from section 24 (1) (e). 27 Insert instead "Disability Inclusion Act 2014". 28 [2] Section 24 (1) (f) 29 Omit "in a target group within the meaning of the Disability Services Act 1993". 30 Insert instead "a person in the target group within the meaning of the Disability Inclusion 31 Act 2014". 32 5.5 Home Care Service Act 1988 No 6 33 Section 7AA Certain functions to be exercised in accordance with Disability 34 Inclusion Act 2014 35 Omit "Division 2 of Part 2 of the Disability Services Act 1993". 36 Insert instead "Part 5 of the Disability Inclusion Act 2014". 37 Page 33 Disability Inclusion Bill 2014 [NSW] Schedule 5 Amendment of Acts 5.6 Land Tax Management Act 1956 No 26 1 Section 3B Concessional trust--meaning 2 Omit "Disability Services Act 1993" from section 3B (1) (b) (iii). 3 Insert instead "Disability Inclusion Act 2014". 4 5.7 National Disability Insurance Scheme (NSW Enabling) Act 2013 No 104 5 [1] Section 4 Interpretation--key definitions 6 Omit paragraph (a) of the definition of disability services legislation. Insert instead: 7 (a) Disability Inclusion Act 2014, 8 [2] Section 22 General relationship of Act with other State legislation 9 Omit "Disability Services Act 1993" from section 22 (1) (c). 10 Insert instead "Disability Inclusion Act 2014". 11 5.8 Ombudsman Act 1974 No 68 12 [1] Part 3C 13 Insert before Part 4: 14 Part 3C Protection of people with disability 15 25O Definitions 16 In this Part: 17 Department means the Department of Family and Community Services. 18 disability has the meaning it has in the Disability Inclusion Act 2014. 19 employee of the Department or a funded provider means any individual 20 engaged by the Department or provider, or by another entity under a contract 21 or other arrangement with the Department or provider, to provide services to 22 people with disability (including in the capacity of a volunteer or contractor) 23 that involve face to face or physical contact with, or access to the finances of, 24 people with disability. 25 funded provider means an organisation receiving financial assistance under 26 the Disability Inclusion Act 2014 to provide supports and services for people 27 with disability living in supported group accommodation. 28 head of a funded provider means the chief executive officer or other principal 29 officer of the provider. 30 reportable allegation means an allegation against a person of a reportable 31 incident or an allegation of behaviour that may involve a reportable incident. 32 reportable conviction means a conviction (within the meaning of the Criminal 33 Records Act 1991) of an offence involving a reportable incident. 34 reportable incident--see section 25P. 35 Secretary means the Secretary of the Department. 36 supported group accommodation has the meaning it has in the Disability 37 Inclusion Act 2014. 38 Page 34 Disability Inclusion Bill 2014 [NSW] Schedule 5 Amendment of Acts 25P Meaning of "reportable incident" 1 (1) A reportable incident means: 2 (a) an incident involving any of the following in connection with an 3 employee of the Department or a funded provider and a person with 4 disability living in supported group accommodation: 5 (i) any sexual offence committed against, with or in the presence of 6 the person with disability, 7 (ii) sexual misconduct committed against, with or in the presence of 8 the person with disability, including grooming of the person for 9 sexual activity, 10 (iii) an assault of the person with disability, not including the use of 11 physical force that, in all the circumstances, is trivial or 12 negligible, but only if the matter is to be investigated under 13 workplace employment procedures, 14 (iv) an offence under Part 4AA of the Crimes Act 1900 committed 15 against the person with disability, 16 (v) ill-treatment or neglect of the person with disability, or 17 (b) an incident involving an assault of a person with disability living in 18 supported group accommodation by another person with disability 19 living in the same supported group accommodation that: 20 (i) is a sexual offence, or 21 (ii) causes serious injury, including, for example, a fracture, burns, 22 deep cuts, extensive bruising or concussion, or 23 (iii) involves the use of a weapon, or 24 (iv) is part of a pattern of abuse of the person with disability by the 25 other person, or 26 (c) an incident occurring in supported group accommodation and involving 27 a contravention of an apprehended violence order made for the 28 protection of a person with disability, regardless of whether the order is 29 contravened by an employee of the Department or a funded provider, a 30 person with disability living in the supported group accommodation or 31 another person, or 32 (d) an incident involving an unexplained serious injury to a person with 33 disability living in supported group accommodation. 34 (2) However, a reportable incident does not include an incident of a class or kind 35 exempted by the Ombudsman under section 25S. 36 (3) In this section: 37 apprehended violence order has the meaning it has in the Crimes (Domestic 38 and Personal Violence) Act 2007. 39 25Q Ombudsman to keep systems under scrutiny 40 (1) The Ombudsman is to keep under scrutiny the systems of the Department and 41 funded providers for preventing, and for handling and responding to, 42 reportable incidents. 43 (2) For the purposes of subsection (1), the Ombudsman may require the Secretary 44 or head of a funded provider to give information about the systems to the 45 Ombudsman. 46 Page 35 Disability Inclusion Bill 2014 [NSW] Schedule 5 Amendment of Acts 25R Reporting of reportable allegations or reportable convictions 1 (1) The Secretary or head of a funded provider must give the Ombudsman notice 2 of a reportable allegation or reportable conviction of which the Secretary or 3 head becomes aware. 4 (2) The notice must: 5 (a) state whether the Department or funded provider intends to take any 6 disciplinary or other action in relation to the reportable allegation or 7 reportable conviction and the reasons for taking or not taking the action, 8 and 9 (b) include any written submission made to the Secretary or head of the 10 funded provider that a person wished to have considered in determining 11 what, if any, disciplinary or other action should be taken in relation to 12 the person. 13 (3) The notice must be given to the Ombudsman: 14 (a) as soon as practicable (but not more than 30 days) after the Secretary or 15 head of the funded provider becomes aware of the reportable allegation 16 or reportable conviction, or 17 (b) by the later day agreed to by the Ombudsman. 18 (4) The Secretary or head of the funded provider must make arrangements to 19 require employees of the Department or funded provider to notify the 20 Secretary or head of any reportable allegation or reportable conviction of 21 which the employee becomes aware. 22 25S Ombudsman may exempt incidents from reporting 23 (1) The Ombudsman may exempt any class or kind of incident from being a 24 reportable incident. 25 (2) The Ombudsman must notify the Secretary or head of a funded provider of an 26 exemption under subsection (1). 27 25T Disclosure of information about reportable incidents 28 The Secretary, a head of a funded provider or an employee of the Department 29 or a funded provider (each a relevant person) may disclose to the Ombudsman 30 or an officer of the Ombudsman any information that leads the relevant person 31 to believe a reportable incident has occurred. 32 25U Monitoring by Ombudsman of investigations 33 (1) The Ombudsman may monitor the progress of the investigation by the 34 Department or a funded provider of a reportable allegation or reportable 35 conviction if the Ombudsman considers it is in the public interest to do so. 36 (2) The Ombudsman or an officer of the Ombudsman may be present as an 37 observer during interviews conducted by or on behalf of the Department or 38 funded provider for the purpose of the investigation and may confer with the 39 persons conducting the investigation about its conduct and progress. 40 (3) The Secretary or head of the funded provider must give the Ombudsman the 41 information or documents relating to the investigation required by the 42 Ombudsman. 43 25V Results of investigation and action taken to be reported to Ombudsman 44 (1) This section applies to an investigation of a reportable allegation or reportable 45 conviction that the Ombudsman monitors under this Part. 46 Page 36 Disability Inclusion Bill 2014 [NSW] Schedule 5 Amendment of Acts (2) The Secretary or head of the funded provider must, as soon as practicable after 1 being satisfied that the investigation is concluded: 2 (a) send to the Ombudsman a copy of any report, prepared by or given to 3 the Secretary or head, about the progress or results of the investigation 4 and a copy of all statements taken in the course of the investigation and 5 all other documents on which the report is based, and 6 (b) provide the Ombudsman with comments on the report and statements 7 that the Secretary or head considers appropriate, and 8 (c) inform the Ombudsman of the action taken or proposed to be taken in 9 relation to the reportable allegation or reportable conviction the subject 10 of the investigation. 11 (3) After receiving the material and information referred to in subsection (2), the 12 Ombudsman may require the Secretary, head of the funded provider or any 13 other person involved in the investigation to give the Ombudsman any 14 additional information the Ombudsman considers necessary to determine 15 whether the reportable allegation or reportable conviction was properly 16 investigated and whether appropriate action was taken as a result of the 17 investigation. 18 (4) In subsection (3), appropriate action includes any penalty for the making of a 19 reportable allegation that is shown to be false and malicious. 20 25W Investigation by Ombudsman 21 (1) The Ombudsman may conduct an investigation concerning any reportable 22 allegation or reportable conviction notified to the Ombudsman under this Part 23 or of which the Ombudsman becomes aware. 24 (2) The Ombudsman may also conduct an investigation concerning any 25 inappropriate handling of or response to the reportable allegation or reportable 26 conviction, whether on the Ombudsman's own initiative or in response to a 27 complaint. 28 (3) The Ombudsman may exercise any conciliation or other relevant powers 29 under this Act in connection with an investigation by the Ombudsman. 30 (4) The Secretary or head of a funded provider is to defer an investigation into a 31 matter if the Ombudsman notifies the Secretary or head that the Ombudsman 32 intends to investigate the matter under this Act and that the investigation of the 33 matter should be deferred. 34 (5) At the conclusion of an investigation by the Ombudsman, or on a decision by 35 the Ombudsman to refer the matter back to the Department or funded provider, 36 the Ombudsman is to provide the Department or provider with any 37 recommendations for action to be taken in relation to the matter, together with 38 any necessary information relating to the recommendations. 39 25X Protection and other provisions relating to disclosure of information 40 (1) A provision of any Act or law that prohibits or restricts the disclosure of 41 information does not operate to prevent or restrict the disclosure of 42 information (or affect a duty to disclose information) under this Part. 43 (2) If a disclosure of information is made under this Part, no liability for 44 defamation or other civil liability is incurred because of the disclosure. 45 (3) This Part does not affect an obligation or power to provide information apart 46 from the Part. 47 Page 37 Disability Inclusion Bill 2014 [NSW] Schedule 5 Amendment of Acts 25Y Extension of reporting and disclosure provisions to all public authorities 1 The obligation to report under section 25R, and the authority to disclose 2 information under section 25T, with respect to the Department extends to 3 other public authorities if the reportable incident concerned arises in the course 4 of employment with the public authority. 5 25Z Application of other provisions of this Act 6 (1) The provisions of this Act apply in relation to a matter arising under this Part 7 even though the matter may not involve the conduct of a public authority, 8 subject to any modifications prescribed by the regulations. 9 (2) For the purpose of subsection (1), a reference in the provisions to a public 10 authority includes a reference to a funded provider and its employees. 11 [2] Schedule 1 Excluded conduct of public authorities 12 Insert at the end of paragraph (d) of clause 12 of Schedule 1: 13 , or 14 (e) relates to a reportable incident or a reportable conviction (within the 15 meaning of Part 3C of this Act), or to the inappropriate handling or 16 response to such an incident or conviction. 17 5.9 Payroll Tax Rebate Scheme (Disability Employment) Act 2011 No 54 18 Section 6 Eligible employees 19 Omit "in the target group under the Disability Services Act 1993" from section 6 (1) (a). 20 Insert instead "a person in the target group within the meaning of the Disability Inclusion 21 Act 2014". 22 Page 38
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