Disability Inclusion (Restrictive Practices - NDIS) Amendment Bill

Second Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (16:05): I move:

That this bill be now read a second time.

The Disability Inclusion (Restrictive Practices—NDIS) Bill aims to protect and improve the rights of South Australians with disability under the National Disability Insurance Scheme (NDIS) who may be subject to the use of restrictive practices. It creates a new regime for the authorisation of the use of restrictive practices under the NDIS and supplements the existing legislative framework for NDIS participants.

All governments have been working with the NDIS Quality and Safeguards Commission to protect and safeguard people with disability. This includes the national principles for restricted practices authorisation, that is, the national principles that were supported at the Disability Ministers Meeting on 24 July 2020 as a key milestone in the path to national consistency. Other jurisdictions have enacted new legislation that complements the requirements of the NDIS Act and aligns with the national principles.

The common law does not authorise the use of restrictive practices. That lack of authorisation means that, unless there is a statutory scheme expressly authorising the use of restrictive practices—for example, the Mental Health Act 2009, Youth Justice Administration Act 2016 or the Correctional Services Act 1982—then restrictive practices are used unlawfully against a person. If restrictive practices cannot lawfully be used against the person, criminal liability or other civil liability may attach to the person or provider using them.

Under the current legislative arrangements in South Australia, a restrictive practice for a person with a disability would most likely need to be approved under the Guardianship Administration Act 1993 (GAA) and through the South Australian Civil and Administrative Tribunal (SACAT). The NDIS (Restrictive Practices and Behaviour Support) Rules 2018, established under the NDIS Act 2013, has very clear requirements that a restrictive practice needs to be included in the participant's behaviour support plan, which is developed by a registered practitioner.

In some cases, the definition of a restrictive practice under the NDIS and GAA are not the same, causing confusion and compliance issues for providers. It has also resulted in an increase in the number of applications for guardianship orders, which will be avoided by implementing an appropriate authorisation regime for restricted practices. The authorisation process for the use of restrictive practices for NDIS participants in South Australia outlined in the bill establishes a more simplified framework and will provide appropriate safeguards against unlawful use of restrictive practices, while addressing the complexities and limitations outlined above.

It also supports the government's commitment to people with a disability to reduce and eliminate the use of restrictive practices and, where required, supports the use of appropriately measured and ethical practices. The government has committed to develop a legislative framework for the authorisation of restrictive practices relating to NDIS participants sooner to ensure national consistency and support the disability sector in addressing current ambiguities in the system.

The bill will amend the Disability Inclusion Act 2018 to regulate the authorisation of the use of restrictive practices for participants in the NDIS and provide an operational structure for the new role of the senior authorising officer. The bill aims to create a more streamlined risk-based authorisation process for South Australia. It enables a graduated level of authorisation in line with the level of risk or intrusiveness, a restrictive practice or collection of restrictive practices impose on a person.

The bill provides the overarching framework for the restrictive practices regime; however, the regulations are critical to providing the detail regarding level 1 and level 2 authorisation. Therefore, the development of the regulations will be developed in consultation with the people with disability and the broader disability sector.

Consultation in the Legislative Council has led to agreed amendments to refine the draft bill, which will support the protection of the most vulnerable people in South Australia and prevent harm from the unnecessary use of restrictive practices. It will also enable South Australia to meet the national principles where there is a streamlined authorisation process covering all NDIS participants, and it is enshrined in legislation. It is important that this legislation is not delayed to support the safeguarding of people with a disability.

I thank the minister in the other place for progressing this bill and also for her leadership in ensuring consultation with the industry generally and those advocates to ensure protections are given to those in our disability community. I seek leave to insert the explanation of clauses into Hansard without my reading it.

Leave granted.

EXPLANATION OF CLAUSES

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Disability Inclusion Act 2018

4—Amendment of section 3—Interpretation

This clause amends section 3 of the principal Act to insert a definition of the SACAT.

5—Insertion of Part 6A

This clause inserts new Part 6A into the principal Act as follows:

Part 6A—Restrictive practices

Division 1—Preliminary

23A—Application of Part

This section sets out the person, NDIS providers and uses of restrictive practices to which the new Part applies.

23B—Interpretation

This section defines terms and phrases used in the new Part.

23C—Meaning of detention

This section defines the meaning of detention when used in the new Part.

23D—Prohibited restrictive practices

This section is a regulation making power allowing the regulations to prohibit the use of certain kinds of restrictive practice.

23E—Limits on kinds of restrictive practices that may be used by person

This section clarifies that the new Part does not authorise a person to use a restrictive practice of a particular kind if they are prevented from doing so by a condition imposed on an authorisation under the new Part, or do not hold any other authority that may be required under another Act to use the practice.

23F—Interaction with other Acts and laws

This section sets out the relationship between the new Part and various existing Acts and laws.

23G—Principles

This section sets out principles that must be observed in relation to the operation of the new Part.

23H—Minister to publish restrictive practices guidelines

This section requires the Minister to publish guidelines for the purposes of the new Part. The section makes procedural provision in relation to the preparation etc guidelines, and requires the Minister to lay the guidelines before Parliament and publish them on a website.

Division 2—Senior Authorising Officer

23I—Senior Authorising Officer

This section enables the appointment of a Senior Authorising Officer, who is to be a Public Servant.

23J—Functions of Senior Authorising Officer

This section sets out the functions of the Senior Authorising Officer under the new Part.

23K—Power of delegation

This section is a standard power of delegation.

Division 3—Authorised Program Officers

23L—Authorised Program Officers in respect of prescribed NDIS providers

This section enables the Senior Authorising Officer to authorise a person as an Authorised Program Officer in respect of a particular NDIS provider. That authorisation must comply with requirements to be set out in the regulations. The Senior Authorising Officer may revoke such an authorisation for any reason the Senior Authorising Officer thinks fit.

Division 4—Use of restrictive practices other than those involving detention

23M—General provisions relating to use of restrictive practices

This section makes provisions of general application to the use of restrictive practices under the new Part, clarifying the specified aspects relating to such use.

23N—Authorised Program Officer may authorise use of level 1 restrictive practices

This section provides that an Authorised Program Officer for a particular NDIS provider can authorise the use of level 1 restrictive practices (as defined) by the NDIS provider. The authorisation may only occur in the specified circumstances and must comply with the section, the regulations and the restrictive practices guidelines. The section also makes procedural provision relating to the use of such restrictive practices by the NDIS provider.

23O—Authorisation of use of level 1 or 2 restrictive practices by Senior Authorising Officer

This section enables the Senior Authorising Officer to authorise the use of level 1 or 2 restrictive practices (as defined) by a particular NDIS provider. The authorisation may only occur in the specified circumstances and must comply with the section, the regulations and the restrictive practices guidelines. The section also makes procedural provision relating to the use of such restrictive practices by the NDIS provider.

23P—Revocation of authorisation to use restrictive practices

This section provides that the Senior Authorising Officer may revoke an authorisation under the specified sections if the Senior Authorising Officer considers it appropriate to do so.

Division 5—Information gathering and sharing

23Q—Senior Authorising Officer may require information from State authorities

This section confers on the Senior Authorising Officer a power to require a State authority to provide specified information.

23R—Senior Authorising Officer may require information from other persons

This section allows the Senior Authorising Officer a power to require other persons (including but not limited to NDIS providers) to provide specified information. The section creates an offence for a person to fail to comply with such a requirement.

23S—Senior Authorising Officer may notify NDIA or the NDIS Quality and Safeguards Commission

This section authorises the Senior Authorising Officer to notify the NDIA or the NDIS Quality and Safeguards Commission of certain matters that have come to the attention of the Senior Authorising Officer.

23T—Senior Authorising Officer may disclose etc information to other jurisdictions

This section authorises the Senior Authorising Officer to both receive and make use of specified information, and to disclose specified information to certain persons and bodies in other jurisdictions whose duties include screening of people who work with people with disability.

23U—Disclosure of information to prevent harm

This section authorises the Senior Authorising Officer to disclose information to an appropriate person or body if the Senior Authorising Officer is of the opinion that to do so is reasonably necessary to prevent harm being caused to a person with disability.

23V—Disclosure of information for research purposes

This section allows the Senior Authorising Officer to disclose information for the purposes of research of a specified kind.

23W—Provision of other information to Senior Authorising Officer

This section clarifies that persons and bodies may provide to the Senior Authorising Officer any information that the person or body reasonably believes is relevant to the functions of the Senior Authorising Officer under the principal Act. No liability attaches for doing so, provided the person acted in good faith and without negligence.

23X—Information sharing for national register or database

This section allows the Senior Authorising Officer to disclose information for the purposes of providing information for entry on a national register or database relating to the use of restrictive practices.

Division 6—Dispute resolution

23Y—Internal review by Senior Authorising Officer

This section confers on a person who is aggrieved by a decision of an Authorised Program Officer or a prescribed NDIS provider under the new Part a right to a review of the decision by the Senior Authorising Officer. The section also makes procedural provision in relation to such reviews.

23Z—Review of decisions by South Australian Civil and Administrative Tribunal

This section confers jurisdiction on the SACAT to review decisions of the Senior Authorising Officer under the new Part, as well as other decisions identified by the regulations (if any).

Division 7—Miscellaneous

23ZA—Limitation of liability

This section limits the liability of the persons and bodies as specified in the section.

23ZB—Offence to hinder or obstruct Senior Authorising Officer etc

This section creates offences for a person to hinder or obstruct the Senior Authorising Officer in the course of doing their duty, or an NDIS provider in the course of using restrictive practices.

23ZC—False or misleading statements

This section creates an offence for a person to make false or misleading statements in information provided under the new Part.

23ZD—Evidentiary provision

This section makes evidentiary provisions relating to the proof of certain matters under the new Part.

Ms COOK (Hurtle Vale) (16:11): I indicate that I am the lead speaker and probably the only speaker for the opposition on this bill. As the Hon. Clare Scriven indicated during debate in the other place, the Labor opposition believes that broadly it is in the best interests of not only people with disability and participants but South Australian workers and people who provide support for people with disability that this bill is progressed as quickly as possible. I made it very clear that we would use the upper house as the opportunity for debate and to put forward the amendments that were given to us in good faith.

We will not be obstructing the passage of the bill but seek for it to be passed as quickly as possible. On that basis, we will be supporting the bill in here; however, the opposition has raised significant concerns. We sought to address the concerns, in part through proposed amendments, most of which were not supported in the upper house, to my disappointment and, we believe, in many cases in the long term to the detriment of the community in South Australia living with disability and those supporting people living with disability.

I will put the concerns of the opposition on record today. That will be a way for us to be able to refer to that in the future in a compact and concise way. The debate was quite complex and it took a fair amount of time in the other place. That is so, if any incidents should arise in the future, we have put our feelings and thoughts clearly on the record, as well as how we came to those, for people living with disability. We the opposition have attempted in good faith to work with the government and the crossbench to rectify some of the shortcomings that we identified in the bill and, in doing so, to prevent some harms we fear may arise from inadequacies in this piece of legislation.

We do accept the intent of the legislation, and that is to protect the rights of persons living with disability who may be subject to restrictive practices in the course of receiving support services and care and to protect the support workers providing services to their NDIS clients. The minister assures us that the government undertook extensive consultation to inform the development and the checking of this legislation.

We are advised that the consultation period ran from 15 December 2020 until 29 January 2021. In addressing the last bill and the consultation on that bill, the Minister for Child Protection pointed out how appalling the consultation on that bill was by the then Labor government when the consultation happened over Christmas. It appears that it is okay for a Liberal government to consult over Christmas but that it is not okay for a Labor government to consult over Christmas. That hypocrisy is not missed by me. In fact, I was going to raise it anyway just as a point of conversation regarding this bill.

It was just a little bit of annoyance that was brought to us by the dozens of people who came to us on this bill. The Minister for Child Protection raised it only before lunch about how terrible it is to consult over that festive period. So I thought I would just raise that as an example of hypocrisy and I would ask that the government do better in the future and I would make the commitment to do better myself because it is not good enough. It is a time when many people are not at their desk, not focused on legislative matters or not able to put all the resources into providing good consultation and feedback regarding legislation.

I also understand that 27 written submissions were provided. We have not seen these. They are not made public. It makes it very difficult for people to be able to judge whether or not the government is being fulsome in its responses regarding how that feedback is used. I certainly have seen the written feedback from many people. Quite a number of things were raised that have not been taken any notice of at all by the government and very little change was made from the draft bill to the final bill.

People will not forget. They are very annoyed, they say it smacks of arrogance and they are disappointed that the government has not listened to their calls for change, from the bill that went to consultation to the bill that went out, and that is in no way trying to say that we want to obstruct the bill from happening. The bill is vital but there are parts in it that certainly have not been published. We have not seen it.

It would perhaps be a way of change moving forward that submissions are public, redacted by name if people so desire, or you could offer a submission with clear instruction that it is not to be shared or that it would be allowed to be shared. I think that is another way forward for this. We know that there were only minor changes to the legislation. I think that that speaks a bit to the comments that I have had passed to me by people I would call experts in the field in regard to the consultation process.

As the shadow minister for human services, I undertook significant consultation with people on this bill. As people contacted me, I met them face to face. I spent time with them. I have had many exchanges with them and have taken into account, within reason, all the things that were put to me and provided balance in terms of the proposed amendments that we put up. There were criticisms made suggesting that the consultation could not have possibly been as fulsome as the minister's and the government's through their processes.

I strongly refute that. I have a background in evidence-based practice. I have worked for more than three decades in health and, for 10 years, I worked as part of a disability service. I know that you need to listen. I know that contemporary practice has changed and I know the consequences of bad legislation when it comes to health care. I had a fulsome consultation and I took notice of the people who came to me. I feel very disappointed for them because they feel that they have not been listened to by the government during the consultation process.

They have raised meaningful and justifiable concerns about the provisions in the legislation, and the concerns have been ignored. My consultation was motivated solely by the desire to ensure the legislation achieves the best and most appropriate outcomes for South Australians living with disability who may be subject to restrictive practices in the course of receiving services and care. I know that restrictive practices are not used lightly. They can have dire consequences to the person on the receiving end and also the person putting them in place. For that reason, this has to be taken very seriously. During my consultation, that is what I certainly did.

My consideration of the feedback I received was not influenced at all by the need to get a piece of legislation that I feel is not adequate in many ways and that has improper safeguards for vulnerable South Australians. My motivations were not to get a piece of legislation like that through the parliament. My consultation was not biased in relation to that and how it assigned merit to submissions of feedback, so I believe that differs from the government's in this regard.

I both solicited and received, unbidden, a range of feedback from leaders, practitioners and senior public servants across the disability space. These are people with expertise arising from decades of experience working within and alongside the sector, evaluating and addressing the needs of people living with disability and the regulatory frameworks that apply to disability support services. These people care deeply about getting legislation right. Many of them reached out to me in absolute desperation, having seen the minister and the government ignore the alarms that they raised during the consultation process. They are very concerned, and I believe they are justifiably concerned.

As a result of certain inadequacies of the bill, the human and civil rights of vulnerable South Australians will be at risk of infringement. The comments I make today in relation to the inadequacies of the bill do not derive from my own personal experience; however, my professional knowledge and experience do inform some of what I say and my capacity to unpack what is good feedback versus what is not so good feedback. My comments reflect the good feedback which I have received, the expert and highly informed views of people from the sector and from the community of lived experience, the people the minister should have listened to but did not.

What follows is just a selection of the key concerns that were raised with me. One section refers to making restrictive practices easier for service providers. Firstly, in relation to the impetus for the development of the bill, there is no doubt we must address the discrepancies between guidelines and rules prescribed by current regulation and those prescribed by the NDIS guidelines and their rules. It is complex and complicated—there is no denying that—but the view of many who reached out to me is that the legislation, as it now stands, has been tailored primarily to the convenience of service providers rather than to the principal focus on protecting and preserving the rights of people who may be subject to the use of restrictive practices.

References to streamlining in particular in the course of debate suggest an intention to facilitate ease of use for provider organisations, not to improve oversight of restrictive practices in service of protecting people who may be subject to them. Whether or not this is what the government intends to achieve with this bill, many of those who have spoken to me are really concerned that this will now be the outcome.

This concern is borne out in many ways and in some of the provisions for the positions of both authorised program officer and senior authorising officer, which I will now address. In relation to the role of authorised program officer, the proposed legislation appears to match the Victorian approach but it has omitted a significant safeguard which is present in the Victorian legislation in that model, that is, the involvement of an independent person. The absence of this safeguard increases the risk of decision-making which is biased toward the convenience of organisations rather than the protection of people.

Per the legislation, authorised program officers are to be persons employed by service provider organisations. The feedback I have received strongly suggests that this may lead to serious conflicts of interest. Normally in circumstances where a person lacks capacity, decision-making around a range of matters rests with the guardians and, in some cases, with the Public Advocate or the South Australian Civil and Administrative Tribunal. The same should apply with the authorisation and use of restrictive practices.

This has been identified as a significant concern by several people who have spoken with me. We talked about applying a minimum standard for qualifications or a minimum role for those people within their organisations. While it may not be intended—and I will not say the name too often—not all providers are at the top level of their efficacy or their morality, and we have seen that. In four days, I think, it will be twelve months since we heard about the death of Annie Smith.

Would you trust Integrity Care to make sure that a well-qualified, high-level, high-performing, decent person is making these decisions? Personally, I would have wanted every safeguard possible to go in here at the start—built into the legislation. I would not be disparaging about the quality or the morality of cleaners, because there are some who are absolutely outstanding, but it would not be their level of skill to be able to judge whether or not somebody should be locked in a room or have the fridge locked so they cannot get food, or have them searched or some sort of other restrictive practice applied. It would not be their level of skill to be able to do that. You would want someone with a degree of experience, right? But it was refused. We were not able to get across the line that it would be a person at a particular level within an organisation.

The minister suggests that the authorised program officers will be authorised only in restrictive practices that are outlined in the individual's behaviour support plan. This does require consultation with a person with disability and their family, carer or guardian. The minister tells us that it will be okay because they can only authorise something that is already in the plan. Well, I am sorry, I am not all that confident with the process and how that conflict of interest might be managed within an organisation. People giving me their feedback are similarly dissatisfied with this, and they do not feel confident about it.

Another concern raised was the use of restrictive practices on minor children. The legislation appears to take decision-making around the use of restrictive practices for children out of the hands of parents and guardians, and that is at odds with the authority that parents and guardians have to make around a broad range of other decisions in other areas related to children living with disability.

Once again, the intention seems to consolidate that decision-making in the hands of service providers, which creates a risk of infringement upon the rights of children and their parents and guardians. Further concerns have been raised about the lack of reporting requirements in instances where authorised program officers have taken the step of authorising the use of restrictive practices for a person receiving support services.

The opposition moved amendments in the other place attempting to put in place requirements for record keeping and reporting by authorised program officers. We believe it is important to ensure that accountability, which includes the appropriate level of oversight by an appropriately qualified person, is ensured in each case where restrictive practices are used.

The minister once again prefers to leave this to be dealt with entirely through regulation in order, she says, to minimise the administrative burden on NDIS services. Again, the principal intent seems to be to promote convenience for service providers rather than to protect the safety, wellbeing, welfare and dignity of people who may be subject to the use of the restrictive practice. It is not putting that person at the centre of this legislation.

Also, we tried to move some amendments to the senior authorising role. Whereas in other jurisdictions it is called a 'senior practitioner', I think the minister raised issues and tried to allege that there would be confusion regarding the conflict between this role and the role of a practitioner under the NDIS. Honestly, if a department and a team cannot differentiate between the two different roles when there really is only one senior practitioner—there would be one senior authorising practitioner dealing with this particular circumstance—I think we are in trouble. If that is going to create confusion and that is the benchmark, I think that is a problem in itself.

The minister reports that issues were raised in the government's consultation regarding the provision to situate this role within the Department of Human Services. This person who has the control and the oversight of the tick list, of the check box, for restrictive practices will be sitting within the Department of Human Services, which is a provider of disability services, and the feedback I received—and I am confident that the minister received as well—suggests that there is a clear potential there for conflict of interest.

I think it is not without precedent that we should look at a position like this to be removed completely from the Department of Human Services and to be situated alongside the Attorney. The minister promises that this role will be separate from the service delivery arm of the department. It is not that big a department these days, to be quite frank. She appears satisfied this resolves the potential conflict of interest between the DHSS as a provider of services and a monitoring authority of service practices.

The opposition is not satisfied that this role is being situated separately from the service delivery arm of the department and that it is sufficient to prevent a conflict. I make the point that while my left arm is separate from my right arm, they are all part of the same thing and they operate accordingly. Everyone operates in a certain pattern within the department and they have to communicate. I do not see how the senior authorising officer can sit on an island within the department and not interface or interact with the service provision arm. It just makes no sense in my eyes.

I also want to point out that the advertisement for this role went out months ago. The recruitment process for the senior authorising officer went out months ago, with a whole range of criteria around it and indications about the job itself. It had not even been decided in legislation that this was happening and the job spec goes out, it is advertised, people start putting in effort to apply and then suddenly it was stopped. I say that is because we have raised it as a problem, that the job has been advertised before the position exists, so the brakes were put on. Good. Thank you for listening.

With regard to body searching, of course this has hairs on it. It is very difficult to monitor, very difficult to ensure the safety of the worker and the person with disability. I have had a lot of people come to me about this. The concerns raised about the provision of body searching as a restrictive practice strategy circled around enabling support workers to undertake body searches and then having the opposite effect of the intention in the legislation.

It talked about how the reactive process of somebody with behavioural problems could lead them to be more aggressive. It can undermine the relationships that people with disability have with workers within their environment, and it could be very damaging to that trust relationship between clients and carers if they suddenly have this endorsement to do body searches. The existence of trust is crucial to the wellbeing of people with disability.

That is not to say that I do not support the capacity of someone in a role supporting a person with disability to help that person if they feel that that person is putting themselves at risk—for example, someone with a swallowing problem taking a hard piece of fruit to eat. I have looked after people with disability who have done exactly that, and I have had to extract hard lumps of apple from the back of their throat to save their life.

The minister could not point to one instance where a worker was subject to the wrong side of the law or had an allegation against them of doing harm to a person because they were saving their life by removing inappropriate food from their person. They could not direct us to any cases or instances like that. I think that is a furphy. I support the people who have come to me with issues around the reality that, in practice, body searching creates risk.

Again, a massive percentage of people who do the right thing and are very skilled in the work they do regarding support work are not included in this statement, but there are people—and again I say the words 'Integrity Care'—who are without integrity. If we give these people just that little bit of extra permission to undertake invasive searching, what might be the consequences here? It makes clients vulnerable to a range of unintended consequences that we now have been alerted to: sexual exploitation by predators who found work as service providers.

There is a range of things that could happen as an unintended consequence because we are now endorsing body searching by people who perhaps do not have the capacity or the range of proper judgement not to hurt people. I do not cast aspersions on the vast majority of support workers who are overwhelmingly well intentioned and would never knowingly hurt a client. They work under the most difficult of circumstances, but we know that providing predators with pathways to access vulnerable people is not a good move.

I agree with the argument put to me in relation to the provision of the bill. I dearly hope we never see the worst possible consequences manifested, and we should have learned by now always to legislate in anticipation of the rare worst-case scenario—that low bar of people who do not have proper judgement. For those reasons and more, the opposition believes that SAPOL and SA Ambulance are the more appropriate services to call on if a body search is necessary and that it should be done at the highest level of dignity, privacy and respect for someone with a disability.

The provision of the bill was identified by several people as their greatest area of concern, and I ask the government to consult again in the community with people looking after those with disability, carers and loved ones, and people with disability because they are very worried about this.

Another couple of little areas were raised, including the level classifications of restricted practices in the language of the bill—that is to say, level 1 versus level 2 restrictive practices. It was discussed at some length. The minister has discussed that they will be defined in regulation and believes this is the suitable course of action. We of course proposed an alternate, as brought to us by people in the sector and by some experts. I do not think it is the kicker.

I do believe the regulations in this respect can be quite clear but, again, in this time when we are trying to aim for the gold standard of safeguarding—and we set that benchmark last year through a time of horror—I believe we should have gone to the highest possible benchmark from a safeguarding point of view and got things put down in legislation, replaced by a schedule of practices that offers great clarity and detail. On expert advice, I support that view, but we will watch and see with interest what comes out of the regulations on that and many other things.

This is a very important piece of legislation that I am sure we could talk about and continue to debate for hours and hours. I do not endorse all the things that are in here because of the reasons I have spelt out. That is not going to change the fact that we will agree and vote yes. I also think it is appropriate to say that it is not up to the opposition to legislate; if it were, I would have given much greater weight to the concerns of the people who came to me in despair because they felt they were not being listened to.

Some of those came to me over that period of time over Christmas because they felt, 'Well, what's the point of putting out for consultation? This is just trying to hide it through Christmas.' They were very sceptical about the rigorous nature or lack thereof. It turns out that they feel they were not listened to—and they were right. These people I trust, and they really are best placed to guide the development of better and more appropriate legislation in this place.

I thank all the stakeholders who reached out to me. I thank the people who have provided me with really good information and really rigorous advocacy on behalf of some of the most vulnerable people because of the pure nature of them living and dependent and reliant on support workers for their daily routine. Many of these people are those who have impaired intellectual functioning and therefore lack a strong voice for themselves.

One of the people who reached out to me has given me permission to name them as providing me with an enormous amount of feedback and, in sheer frustration, hopes that by naming them they will be reached out to. This person is currently trusted at a very high level to provide oversight for judgement around safety and has been doing so for the past 12 months. This person is Richard Bruggemann.

He was the senior practitioner in Disability SA for many years, and he has been trusted by the Attorney to provide support during COVID. From all accounts, he feels the Attorney has handled that section of oversight and support for vulnerable South Australians in a really good way. He has been proud to be part of that process and looks forward to finishing his time in that role in a very productive way still and continuing to be very productive moving forward.

I thank Richard Bruggemann, who, members might know, is also the South Australian Senior of the Year this year because of his lifelong commitment to the rights of and opportunities for people with disability. He personally reached out to the minister to offer his input and highlight the areas in which this legislation was failing and where it should be changed. It appears he was not listened to in this respect, and that is disappointing.

I am confident that he is such an astute and brilliant mind in this space that the government will continue to speak with him and work with him, but I am thankful he is openly supporting both sides of this house to offer advice. That should continue.

I am grateful for small mercies: in the end, we did get one amendment through out of 71, I think. The one amendment we did get through was to remove the capacity of the authorities to fine a person with disability who wanted to protest against the application of restrictive practices on themselves. As the legislation read, there were two fines: one for $5,000 and another for $10,000. I am happy for people to nod or shake their head, but I think probably the person with disability was more likely to be subject to the $5,000 fine; I do not believe that was the intent. The government agreed to accept the amendment and that has now been changed, so I am very grateful for small mercies in that regard.

In summary, we support this piece of legislation. It is absolutely necessary. We have to make sure that the state and federal interface works. We have seen that with the screening checks and we have seen that with a number of things. It is a complex beast, the NDIS. One of the key areas we saw as being a problem, which we have highlighted, was about the feedback: it was hidden. It is very hard to turn around to people within the parliament and to the public to say, 'This is what the government was told. This is the feedback they were given,' and the legislation has not been changed according to their good faith feedback. Its being done over Christmas—we have just had that argument again, as I said before—was not ideal. I commit to be different.

Putting the job out for people to apply, from a senior authorising officer point of view, is not a good look and, thankfully, that was stopped. That should not happen; we need to wait for the process before we go through the recruitment. It was a mistake. The naming of the roles could have been strong. A statement could have been made: 'This is the standard we accept and expect.' I do not think regulation is good enough for that. I think those things should be in the legislation.

I think it is important to get legislation right. I think the consultation leaves a bit to be desired, particularly the follow-up and the lack of listening. Doing things by regulation has hairs on it. Having the role of senior authorising officer sitting within the department where it is a provider is not right. I would like that reviewed at some point to see whether or not that should be moved. Oversight is so important.

Good providers should not be concerned about any commentary that we make around this. Sadly, we need to make commentary targeting the lowest of the low, the scum of this earth, who seek to target people living with disability who do not have the capacity to speak out for themselves.

I think we have missed a bit of an opportunity in regard to some of these things in this legislation, but, in saying that, the stakes are high for people living with disability, particularly those with diminished intellectual capacity and a significant cohort of vulnerable people—South Australians—we in this place have a responsibility to protect and respect. They really do deserve the gold standard of scrutiny and oversight that we can provide as a parliament that does not always agree but works in a vigorous and rigorous manner to get the best possible outcome for those people.

We should all listen to the experts, particularly when you are not one. Something that I say a lot in the community when asked about this place is that sometimes I sit here and I feel like I have never worked with so many people who know so little about so much but pretend they know everything. I think that when it comes to things like this, the experts have to have the leading say and, sadly, they have not been listened to. In saying that, we support the bill.

Ms LUETHEN (King) (16:47): I rise to support the Disability and Inclusion (Restrictive Practices-NDIS) Amendment Bill and thank the honourable Minister for Human Services in the other place for introducing this important bill.

South Australia is required to ensure state legislation in relation to restrictive practices complements the requirements of the NDIS Act and aligns with national requirements. The Disability Inclusion (Restrictive Practices—NDIS) Amendment Bill aims to protect and improve the rights of South Australians with disability under the National Disability Insurance Scheme who may be subject to the use of restrictive practices.

The NDIS Act and the NDIS rules, which detail behaviour support planning requirements, are our source of authority that constrains what we can operationalise within our own legislation. This bill aims to give people with a disability a greater say over restrictive practices. Our Marshall Liberal government wants to ensure that South Australians living with a disability will be better protected and have a greater say under the new laws that provide extra safeguards on the use of restrictive practices.

The Minister for Human Services has advised us that the bill will introduce a new authorisation regime that ensures restrictive practices are used only as a last resort and in consultation with the person with a disability or their guardian. Over the past few years, residents have raised with me terrible examples of children being restricted unnecessarily in child care and school. They have told me that this has been traumatic for the individuals involved and for the families. This legislation strengthens protections for National Disability Insurance Scheme participants of all ages and gives people with disability a stronger voice about how they are safely supported. It also removes the ambiguity currently faced by NDIS providers.

Extensive consultation on the draft bill commenced on 15 December 2020 and concluded on 29 January 2021 and was led via the YourSAy platform in conjunction with the Department of Human Services social media campaign. This broad public consultation across the community was complemented by targeted consultation with key stakeholders in the sector, including people with lived experience. The rights, dignity and safety of people living with complex disabilities must be at the core of decision-making on the use of restrictive practices.

This legislation will enable NDIS providers to fulfil their duty of care to staff and ensure participants are not at risk of harm to themselves or others, while reducing reliance on the use of restrictive practices. Restrictive practices are regulated under the NDIS Act and can include anything from minor safety changes in the home, such as a lock on a cupboard, through to the need to physically restrain someone's movement. The legislative change introduces a new authorisation process for NDIS providers, aligning South Australia with the national principles regarding restrictive practices.

The authorisation scheme will apply a risk-based process where low-level, less intrusive restrictive practices, such as environmental restraint—for example, locked cupboards—may be authorised by an approved authorised officer within an NDIS provider, and high-level, more intrusive restrictive practices, such as a physical restraint, can only be authorised by the senior authorising officer in the South Australian Department of Human Services or by the South Australian Civil and Administrative Tribunal (SACAT).

The 2020-21 state budget committed $5.8 million over four years to establish this scheme, including the creation of a new restrictive practice authorisation unit that will work with and educate NDIS providers. Our aim is to protect the rights of South Australians with disability. A good government cares for every person in South Australia, and this is just one more action we are taking to ensure better safety outcomes for South Australians.

Some South Australians with disability can be at increased risk of harm in our community and I am proud we are doing everything we can to better protect people from potential harm. Everyone deserves to feel safe, reach their full potential and live their best life possible. Once again, I thank the Minister for Human Services for her work and her leadership on this legislation, and I acknowledge the opposition's support of the legislation.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (16:52): I thank the opposition for their indication of support and I think considered and genuine commitment to ensuring that whatever we do in relation to the development of restrictive practice regulation maintains not only an understanding but an assurance that the protection, welfare and dignity of those persons with a disability, or those who are in any way vulnerable in this area, is not overrun by, as she describes, the convenience of organisations or service providers.

I think it is more fundamental than that. Where there is a vulnerability in our legal structures, whether it is because of someone's age or disability or indeed their level of impecuniosity, there must be some protections wrapped around those persons. This is one other area of law that is being developed to cover that. As I pointed out in the second reading of this legislation, under our common law, we currently prohibit restrictions and restraints and there is a consequence as a result of imposing restraints or restrictions on parties.

We have, in the criminal law, false imprisonment. We have, obviously, assaults and we have legislation to protect against someone being restricted either in the place that they are in or, indeed, in an activity that they are able to undertake, across to civil liability.

Just like 50, 60 or 70 years ago we had to deal with the question of how one is to manage people with a mental health illness at the time of sanatoriums and at the time of physical restraints and people being strapped and shackled to beds to develop the rules that are going to apply to manage what is a tension, and that is the protection of the patient or individual, together with assuring a safe workplace for those who are going to provide the services to that person, whether it is in the home or some kind of residential care.

These issues are challenging and there will always be tensions there, and there will always be a level of subjectivity in the assessments, no matter how expert the persons are who are going to be responsible for these decisions. Indeed, there will always be a level of subjectivity, even within the envelope of those who are going to have oversight over whatever regime we implement. I think we have to start with the fact that the development of the law in this area is embryonic.

We all agree it is necessary and we all agree that there is a benefit in establishing a framework with some national consistency, because the care of persons ought to be a standard that we can agree upon and the safety and protection of those in the workplace who are vested with the responsibility of providing care of persons in this vulnerable area also need to be assessed.

There is clearly always going to be some transience in relation to the workforce, firstly, between sectors and between states, so we need to appreciate that that is the real world. Secondly, people with a disability may also have the right to be able to transfer not just within their own state but to other parts of the country.

I raised this only recently at a building ministers' meeting when we were talking about the accessibility of accommodation and dealing with the vulnerability and difficulties faced by someone with a disability, particularly a physical disability, which for example may require them to have supported walking or be in a wheelchair and to have access to a dwelling that does not have a step in it and to have access to a dwelling that has a toilet on the ground floor.

I could talk for some time about what happened in relation to the disability access to a premises. The next question does require a body of work because unfortunately the NDIS does not deal with the question of accommodation, and it never did. Some people could argue that there were some deficiencies in that area, but I had that issue out with Bill Shorten at the Adelaide Town Hall 12 years ago. The point is that we are stuck with that and we have to deal with it, and we are going to have to manage that.

In considering that issue, it is very important to me, and I think to everyone, to understand the significance of the fact that, if we are going to actually encourage people with any disability to be able to have the same opportunities and the same aspirations as other persons in our community, that includes the movement and the right to reside in different places. That may be to follow those who are seeking employment and it might be to follow those who are close to them in their friendship or family groups. That is going to be a realistic factor that we have to consider in the future.

Bearing all that in mind, a new body of work is being done. We want national consistency. We want a framework that is going to work. We have to understand that there will always be tensions between the rights, opportunities and protections of someone who is vulnerable, as distinct from those who are going to be providing the services, and who may be in a position where they either have the opportunity for or desire to exploit that to the detriment of the person who is vulnerable. That is the reality of what we are dealing with here.

It is probably not much different from what psychiatrists, psychologists and nurses in mental health institutions were sitting around and dealing with as a dilemma 50 years ago when they were thinking about whether they would close Z Ward at Glenside Hospital. So that is what we are dealing with. I am a strong advocate—and I have been able to have a role as Attorney-General with other ministers, including the Minister for Health and the Minister for Human Services in particular—of dealing with this question of how we develop this law and how we provide the oversight and protections with it.

I, too, would like to acknowledge and thank the significant parties who have assisted me in the development of how we might approach this as a new government. They include Ms Anne Gale, the Public Advocate. I also want to acknowledge Nicolle Rantanen, the Public Trustee. Some people think that that is someone who just deals with money, but they also deal a lot with people with a disability whom they represent and support. Her advice has been invaluable. Dr John Brayley, Chief Psychiatrist in the Department of Health, I have formerly known as a former Public Advocate many years ago. I value his advice.

I have appointed Mr Richard Bruggemann, a disability advocate who has been acknowledged by others in the house, to assist during the supervision and support of those who are vulnerable in our community and may need protection during COVID. That has been largely to deal with the seclusion provisions for those who may have a disability for their protection and others in minimising the spread of COVID to be kept separate from perhaps other residents in accommodation or visitors through which there may be some potential spread or contamination. He has certainly been valuable in that regard.

He has also given advice in dealing with matters such as the level of persons with a disability in our prisons and I have found that most helpful to appreciate the significance of what we are dealing with here. We are not just dealing with people in the community who might be under an NDIS plan who have services come to their home. We are not just dealing with people who might be living in residential care who are supervised for three shifts a day and have other services come to that facility. We are not just dealing with people with a disability who, for whatever reason, are currently incarcerated in a prison.

I will use a fairly contemporary example regarding young people who are at the Youth Training Centre, which is now in one campus, and the use of spit hoods, which is a practice we have discontinued completely under this government. Let's just use that. Here, in the 21^st century, it was a piece of equipment that was used potentially to prevent somebody from being able to bite or spit at either another resident or a worker at the Youth Training Centre.

It was rarely used, to the extent that sometimes there would be a resident who it might be used on more than once a year as distinct from a number of different parties who might have needed to be restrained under previous administrations. A review was done of this. It was accepted that a new model had to be developed. That was developed and the Minister for Human Services has ensured that those recommendations have been received, accepted and acted upon. That is not a practice that is now allowed to occur in relation to children who are incarcerated in our training centres.

So the development of new initiatives, the opportunity to have another model for behaviour management and even the provision of medications are all things that bring with them a number of challenges. This act provides to ensure that in dealing with restrictive practices—and, largely, the NDIS rules define the regulated restrictive practice. They include seclusion, chemical restraint, mechanical restraint, physical restraint and environmental restraint. I will not go through all the details; they are in the bill and it is pretty comprehensive.

We will still hear of cases, unquestionably, where a prisoner is brought up from Yatala or the Women's Prison, for example, to the Royal Adelaide Hospital where they will have handcuffs on. They may be essentially shackled to a bed in a hospital during their attendance for the purposes of treatment because they are a prisoner. They may have a security guard, a corrections officer, with them during the time they are at the hospital. We will still see levels of restraint used on people who are in these other cohorts.

What is important about that is that we recognise the necessity in some circumstances for those restraints to be used—in mental health, in Corrections—but that we also understand that when we are dealing with someone who is vulnerable as a result of frail age or disability we are dealing with people who may have a intellectual impairment as well as a physical disability or either, and we have to understand the significance of the dignity and protection of their interests through this process.

But there will be times, just as we have experienced during COVID, when in trying to protect those vulnerable people from contracting COVID and/or pass it on to someone else, that there is just the capacity to be able to say, 'How do you explain to someone who may not understand the significance of going up and hugging and kissing somebody else, which is part of their normal behaviour, when we are in a COVID environment?' and it may mean that they are contaminated with a virus and/or pass it on to someone else.

These are the sorts of things that are thrown to us as a bit of a curve ball at the time of something like COVID. We have to deal with them, and we value the advice of the professionals who support us and give us advice during these times, but we must appreciate that there will always be a tension between these roles and responsibilities.

Can I also say that, in relation to oversight bodies, certainly in the time I have been in the parliament, we have had an explosion of oversight bodies. Let me give you an example of a few that have developed within a government department and, as the member has raised, the question of the independence of these integrity or oversight bodies or reviewers if they sit within a department that is also a service provider.

The earliest one I can remember, and I raised it with the former Attorney-General, was in SafeWork SA, when the inspectors who go along to look at workplace safety are also within an agency that provides education services to employers. Unsurprisingly, there was some reticence by some employers to take up the service of education if in fact they thought the same person was going to inspect their workplace and issue a notice of noncompliance. Again, these things have been raised. To his credit, the then Attorney did act to ensure that there was some separation of those roles.

Another issue relates to the Community Visitor Scheme, a scheme which certainly from opposition we fought very hard to have put into the Mental Health Act for attendances at mental health facilities by parties. It could be on a without-notice basis to enable a visitor to get information from patients or even staff to ensure that there was a certain standard of application of service in those institutions and to provide some voice for a patient or resident of those facilities.

That is a scheme that has been within a department. It has also had an expanded role in relation to the Public Advocate, which is a department that sits within the Attorney-General's Department. At present, our Public Advocate is also the Principal Community Visitor, and that is being supervised in a separate agency, as has been raised by the member for Hurtle Vale, and I think that is something that we will pursue.

Also, there is the Health and Community Services Complaints Commissioner. This was a breakaway from the Ombudsman's office that was established I think under Minister Stevens at the time; it was very early on in the time I was in this place. She advocated that we needed to have a separate body for that. This Health and Community Services Complaints Commissioner was established, and it has been around now for perhaps 15 years or so and still sits within the health department. Again the question should be raised: should that person actually be accountable to the Minister for Health within the health department and investigating complaints in relation to service provision in public and private facilities? Well, big question mark. I think—

Members interjecting:

The Hon. V.A. CHAPMAN: It has been raised, and I have raised it, and it is now under consideration because I think we need to look at how we manage and present to the public, if you are going to have an integrity body and/or an oversight body, one that actually not only is separate and independent but is seen to be separate and independent and maintains the confidence of the public in relation to that service. Yes, these are matters under consideration. There are a number of them, and I am working my way through them.

I note the comment of the member for Hurtle Vale in relation to the supervisory role under this new framework. Certainly, we can have a look at the situation interstate as well and see how they are going to propose to operate this. However, I do accept that, in the development of this new area, we have lots of models out there that have had to do the hard yards in relation to the development of their models. It is not a completely new concept here, but we need to make sure that we have a level of independent oversight.

Finally, can I say in relation to the consultation generally that I know some comments have been made about its being inadequate. I know that I have personally sat in a number of meetings in relation to how this model should develop. I am very grateful to a number of the experts who have presented and given advice on how we progress this, and I have mentioned a few of them. I am very grateful to a very large number of members of the cabinet, ministers who have taken an interest in this matter to ensure that we look at this—for example, education services and how we ensure that people who are undertaking education and who may suffer from a disability are also protected.

We have a comprehensive commitment on this side of the house to ensure that we give every support to the Minister for Human Services to make sure that this program is undertaken, that it is the best that it can be and that we manage the tension between those who are providing the service and those who are vulnerable and indeed their families, who in many ways offer other supports and complementary supports to the care. Sometimes they do nearly all of it, but sometimes there is a variation in the level of support needed for somebody to have adequate services, which is now under the umbrella of the NDIS.

So they are important developments. We have the South Australian Civil and Administrative Tribunal, and there are a number of approval processes through that tribunal for which I have responsibility. Obviously, the Guardianship and Administration Act 1993 is also an area of responsibility that deals with the care and support of people; whether it makes decisions about where they live, whether it handles their financial arrangements for them or whether it makes decisions as to their accommodation or care or medical interventions, these are all things that sit around those supports.

I want to assure the house that, from this side of the parliament, our government is absolutely committed to try to make this the best it can be. If there are ideas as the development with the industry, the families and the advocates of the regulations and guidelines that must flow with this are presented, then I want to assure the house they will keenly be listened to.

Bill read a second time.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (17:13): In the event, Mr Deputy Speaker, that I am advised that there is no request of any member to go into committee, I now move:

That this bill be read a third time.

Bill read a third time and passed.