Disability services in the ACT 

This article states the law of the Australian Capital Territory. The Disability Services Act 1991 (ACT) is a short statute that answers few questions on its own face: what counts as a specialist disability service, and what standards apply to it, are both set by Ministerial instrument rather than by the Act¹. The prior question is therefore always what the current declaration says.

The objects

Section 3 states objects directed at outcomes rather than regulation. They include enabling people with disabilities to receive the services necessary to achieve their maximum potential as members of the community; to receive services that further integration into the community and complement generally available services, that enable a better quality of life including increased independence and employment opportunities, and that are provided in ways that promote a positive image of people with disabilities and enhance their self-esteem; to ensure the quality of life achieved is taken into account in granting financial assistance; and to promote high quality and innovative supports.

The third object links service quality to funding decisions, which is the mechanism by which a statute of this kind exerts influence in the absence of a licensing scheme.

A specialist disability service is whatever the Minister declares

Section 4(1) defines a specialist disability service as a service that is provided specifically for people with disability and is of a type declared by the Minister under s 4(2).

Both limbs are required, and the second is decisive. The Act gives examples of service types — accommodation support, advocacy, case management, personal care and respite care — but examples are not the definition. Whether a particular service is within the Act depends on the current declaration.

Section 4(3) allows a declaration to apply, adopt or incorporate an instrument as in force from time to time, so the content can shift without a new declaration. Section 4(4) makes a declaration a disallowable instrument, which supplies the accountability: the Assembly can disallow it, and it is publicly available as a legislative instrument.

A student cannot answer whether a service falls within this Act from the Act alone. The declaration must be identified and cited.

The close relative exclusion

Section 5(1) defines a specialist disability service provider as a person or entity, other than the Territory, that provides specialist disability services whether or not for profit — but expressly excludes a close relative of a person with disability who provides such services to the person "other than as an agent or employee of a specialist disability service provider" (s 5(1)(a)), and any person or entity prescribed by regulation.

Section 5(2) then defines close relative expansively: domestic partner; father, mother, grandfather, grandmother, stepfather, stepmother, father-in-law or mother-in-law; son, daughter, grandson, granddaughter, stepson, stepdaughter, son-in-law or daughter-in-law; brother, sister, half-brother, half-sister, stepbrother, stepsister, brother-in-law or sister-in-law; uncle, aunt, uncle-in-law or aunt-in-law; and nephew, niece or cousin.

Two points follow. The list reaches well beyond the immediate family, extending to cousins and in-laws of several degrees. And the exclusion is qualified: a close relative who provides the services as an agent or employee of a provider is not excluded, so a relative employed by a service organisation is caught in that capacity.

The provision keeps family care outside the regulatory scheme without excluding relatives who work in the sector. That distinction — between caring for your own relative and being employed to care — appears in the carers legislation of every jurisdiction examined, and here it does the same work on the provider side.

Standards come from the Minister

Section 5A(1) empowers the Minister to approve standards about the provision of specialist disability services by specialist disability service providers, with examples including quality of services and qualifications and training for staff.

As with declarations under s 4, the substance is not in the Act. An answer about compliance must cite the approved standards.

Four State and Territory models

• ACT — a short statute whose operative content is set by Ministerial declaration and approved standards, with funding as the lever.
• Western Australia — Schedule 1 principles applied through named operative sections.
• Tasmania — rights principles, enforceable inclusion planning and a Senior Practitioner in one Act.
• New South Wales — planning obligations only, with no restrictive practices provisions.

The ACT is the least self-contained of the four: more of its content sits outside the statute than in any of the others.

Applying this in a problem question

1. Ask whether the service is provided specifically for people with disability, then whether it is of a declared type under s 4(2).
2. Cite the current declaration; the examples in s 4 are not the definition.
3. Check whether the declaration incorporates an instrument as in force from time to time under s 4(3).
4. For provider status, apply the close relative exclusion in s 5(1)(a) and the expansive s 5(2) list.
5. Ask whether the relative acted as an agent or employee of a provider, which removes the exclusion.
6. For standards, cite the instrument approved under s 5A rather than the Act.

Self-check

• Have I identified the Ministerial declaration rather than relying on the Act's examples?
• Have I applied the full s 5(2) list, including in-laws and cousins?
• Have I asked whether the relative acted as agent or employee?
• Have I cited approved standards rather than s 5A itself?