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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2020-09-09 Daily Xml
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Disability Inclusion (Community Visitor Scheme) Amendment Bill

Second Reading

Ms COOK (Hurtle Vale) (10:57): I move:

That this bill be now read a second time.

Firstly, can I say on the record that, when referring to Ms Ann Marie Smith in relation to any of my public speeches or statements, I use the name Annie Smith. There have been questions asked of a number of people who use Annie Smith. I want to clarify for people that Annie wanted to be called Annie Smith. She was known as Annie Smith. She made this very clear to friends and family. I have had friends and family speak to me and advise me of this, so I am very confident that Annie Smith would like to be referred to as Annie in this place and would advise members that, if they wish to, they should.

There is another bill in this chamber already on the private members' list in my name, which we have been keen to deal with as a matter of urgency, but that same urgency and priority is not being placed on the passage of that particular bill by the government. We believe and are advised that this bill that we now have received, as passed by the upper house, is consistent not only with the government's own task force, driven by David Caudrey and Kelly Vincent, but also now the review and the recommendations delivered and conducted by former federal justice the Hon. Alan Robertson SC, a recommendation of which I will come to later.

As I have said before in this place, the Community Visitor Scheme aims to protect the rights of people living with disability and within disability accommodation facilities and services while ensuring the best opportunities for safety. In May 2019, due to the final changeover to the National Disability Insurance Scheme, under this government the community visitor was no longer permitted to visit non-government disability accommodation service provider settings, supported residential facilities or day options programs. The government claims that legal advice prevents the operation of the Community Visitor Scheme under the NDIS Act, and these claims are wrong.

Whilst I am not a lawyer, what is clear is that our own parliamentary processes can be changed and legislation can be put in place to ensure that there is a fix around this and that we can get community visitors into facilities, residences and other settings that are operated by non-government organisations. The Victorian government certainly has found a way to do that and so have other jurisdictions. In fact, the review conducted by Justice Robertson said that the commonwealth and states should work together to find a legal position that would allow for the community visitor service to operate.

The government has had two years since coming into power to act on this, to make relevant changes, to speak with colleagues in other states who have made changes. There have been a lot of excuses when we have asked questions about this, and the excuses predominantly fall back onto Crown advice that was rightly sought by the Labor government prior to leaving office—Crown advice that was received by the Labor government in the days before leaving office, unable to act on or proceed any further with. Crown advice was sought about the barriers that were in place for the Community Visitor Scheme to operate in all settings. It was asking about the barriers that were in place and whether it could currently operate. Well, no; under the legislation and the way it was worded and the way it is framed, no, it not could not, and that is correct.

Sir, you would be well aware, being legally trained yourself, that sometimes the answer lies within the question that you ask. Did this government seek further Crown advice on what changes needed to be put in place to enable the community visitor to visit non-government organisations? What changes could be put in place in the legislation? It is not good enough for a government to just wave this away and say, 'No, this can't happen because this advice, based on the question around the barriers, says it can't happen.' When other jurisdictions seem to be able to legally get through this and have the political will to do so, it is not good enough not to ask the question: what can we do to change?

We are seeing horrific things going on. We are seeing absolute horror happen in the community, particularly to Annie Smith. We know that Maurice Corcoran, the previous Principal Community Visitor, has stated clearly that he entered private homes. If invited, he entered private homes to provide support and cast an eye over the proceedings and the support that was happening, to help people living with disability in a complex system navigate through these challenges. We do not know what would have happened if Annie Smith could have asked a community visitor to come in. We do not know. We simply cannot say, 'This is the panacea.'

I will not accept being accused of playing political games. I will not accept that this is the only option we have put up. We have put up adult safeguarding, we have talked about a range of issues, we have offered to stand hand in hand and help to shut down this organisation that has been supposedly overseeing the care of Annie Smith. That is the political game: to try to say that we are not doing anything and that we are just playing political games. What rubbish!

I have spent three decades working in community and in health. I have received people from the community who are cachectic and in agony because of suffering. I have seen it with my own eyes. I do not play games. I am terrified for these people. We need to put in every possible mechanism we can, and as in the bill talked about previously and as was beautifully put both by the member for Wright and the member for Flinders, if this saves one life it is worth it. How do we get justice for people if we do not give them every opportunity to seek that justice, to call out, to get help?

We have heard a number of times that presentations have been made to the government from people such as the previous community visitor and members of the public and other experts. We have heard the WestWood Spice report being talked about, which was an independent review of visitor schemes. We have heard their recommendations that the scheme should continue under state and territory governments to ensure that there is this oversight. Can you all look at yourselves in the mirror and say, 'We have done everything,' if you do not pursue this? There can be amendments to this legislation. We have them here ready to go. We know that this can happen. We know that this will enable visitors to visit all situations.

The Minister for Human Services purports to be the champion of the Community Visitor Scheme. I applaud her involvement in enabling this visitor scheme to participate in providing this oversight and support through settings such as mental health. People who have mental health problems, people with intellectual disability, people with complex medical problems, people with complex disability need every support they can get to navigate through the complicated challenges that they face in their homes, in their workplaces, in their residences, be they supported group homes or other types. They need every bit of help they can get and we as a parliament are obligated to do this.

Having put up legislation, having asked questions of the Minister for Human Services around this, the Minister for Human Services has waved this away. She has hidden behind a shield of Crown law advice, which is based on a question that does not seek to find a solution. She voted against any amendments. She did not put up any amendments. She did not provide any suggestions, given the weight of the department behind her to provide support to get this happening. She just voted against it.

To reiterate the legal part of this bill rather than just the clearly moral and rights part of this bill, it uses much of the original regulations which first created the Community Visitor Scheme, modified using many of the provisions under the Victorian parliament so the laws are not inconsistent with section 109 of the constitution and that was suggested by this Crown law advice over two years ago. This is a solution. This bill provides a way through that.

We have removed provisions that were originally placed in there to enter people's private homes via force, via warrant. We respect the feedback we got regarding that. We still believe people should be able to access a community visit in their own home, so we need to strike that balance of privacy and safeguarding for people who, because of these complex situations they are in and policy, be it terrible or not, are vulnerable. We need to make sure we do something. The recommendations as handed down last week by the Hon. Alan Robertson SC state:

Consideration should be given to the Commission establishing its own equivalent to State and Territory based Community Visitor Schemes to provide for individual face-to-face contact with vulnerable NDIS participants.

I have no argument; that is absolutely spot on.

The federal government is getting a monte of money to perform its tasks and its oversight and safeguarding through the NDIS, correct? We are putting nearly three-quarters of a billion dollars in every year, and they should be using it, right? This should be happening. We have no argument with that. Get moving on it. Stuart Robert, get going. What are you doing? Get out of the starting blocks and create the scheme. We have known we have needed it for years. Go for it.

There is an underspend in the hundreds of millions of dollars. What is that money being used for? Well, there is a Community Visitor Scheme just waiting in the magic pot to turn into a pudding, right? Let's go. The second part of what Alan Robertson stated was:

Until that happens, the Commission should continue to support the State and Territory Community Visitor Schemes...

I repeat:

…the Commission should continue to support the State and Territory Community Visitor Schemes and any doubt about State and Territory powers under those schemes in relation to NDIS participants should be resolved between the law officers of the Commonwealth and of these States and Territories.

He is asking us to do our jobs: that is, to change the law, to get it moving, to get it happening. Let's do it now. There are no more excuses. Annie Smith's death is a horrible tale. Let it be the trigger for change. Let it be a conduit.

I have seen a lot of things in my time as a nurse and working in the community, as I am sure members of parliament have—horrific. I cannot imagine the pain that this poor woman went through. It is disgusting. Let the police deal with it. Let them put the people away who caused this but, on the back of that, let us make Annie a legacy for change. The bill, which the opposition will dedicate to Annie Smith, I am sure will save the lives of many South Australians in the future. I commend the bill to the house, and may Annie Smith rest in peace.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (11:11): Let's be very clear, even if this bill passed and were valid it would not have helped Ann Marie Smith, known as Annie Smith. Her tragic death has shone a spotlight on the circumstances that we now need to address as legislators and leaders in the community to assist those in the community who are vulnerable. However, I want to be absolutely clear that this bill—even if it was valid when passed—having a community visitor scheme would not and will not assist those in Ann Marie Smith's circumstance.

The member well knows the commitment of the Hon. Michelle Lensink to the Principal Community Visitor and the Community Visitor Scheme that is operating in South Australia. Indeed, the now minister moved amendments back in 2009 to make sure that we had this scheme, and it operates very well for the benefit of those to whom it applies. Visiting people in their privately owned homes, even with an invitation, however, has never been within the legislative scope of the scheme, and the disability CVS has never had coercive powers or a right of entry to private property, so let's just be clear about that.

With the introduction of the NDIS scheme, the previous Labor government we know—we heard all the speeches of the Hon. Bill Shorten, etc.—decided to cash out the disability service and that happened, including the CVS to the NDIS, in 2013. An NDIS Quality and Safeguards Commission was established to deal with the legal responsibility of those services. As has been alluded to by the mover of this bill, the previous government had clear legal notice that the applicability of the service, including coercive powers, would be invalid. It has often been referred to. It is still the position today. There is no change to that, and this bill and the legislation and advice within the envelope that we have received to date will not resolve that problem.

The implication of this legislation is that the CVS can no longer visit services that are funded or regulated by the commonwealth as they are no longer funded by the state. For the CVS to continue to visit sites that are no longer funded by the SA government places the volunteer workforce at risk.

Let me be very clear about this: the national review on community visitor schemes was a policy assessment in relation to the aspects that were existent around the country. It did not contain any analysis of the legal issues around the CVS and the transition to NDIS. It solely focused on those policy issues. It does not address the fundamental legal question which the South Australian government has raised, which is how the services can operate within the NDIS model. Just look at that report, re-read it again I suggest to the mover; that does not help us in that regard.

The death of Ann Marie Smith is tragic but when we were alerted to that, as we all were on 15 May, by a public statement by SAPOL, a task force was initiated, interim and final reports were provided, and the government has moved swiftly in relation to those recommendations. We are the ones who have been the champions of the Community Visitor Scheme and, indeed, expanded it for the purposes of those in our state-run services.

But the Crown advice remains the same: this proposal of a scheme potentially puts our volunteers at risk of criminal and civil liability. That is the consequence of trying to impose this. The commonwealth's NDIS Act 2013 does not identify the community visitor as a protected person who can make certain disclosures about improper conduct by the NDIS providers. Any scheme deemed legally invalid also potentially places our volunteers at further risk, i.e. not covered by public liability insurance.

These are the real consequences of having a poorly rushed piece of legislation, hopefully to capitalise on this tragic situation. You can be first in, first level to care, all of those things, but the reality is that we have to do something that is going to be effective, lawful and able to be implemented. I find it arrogant on behalf of the Labor Party in this instance—not necessarily by the mover of the motion. I respect her history in relation to nursing care in her profession before she came here, but this is an arrogant insistence on voting on a bill—obviously in the Legislative Council, but to come here—prior to that task force report even being provided. Well, now we have it and it makes it very clear.

I want to make sure that we appreciate that the Alan Robertson SC report makes it very clear—again, not just now but those recently received recommendations made by Mr Robertson are consistent with those made by the state Safeguarding Taskforce final report. Mr Robertson makes a very clear recommendation in relation to community visitor schemes. This recommendation states that the commission should establish its own equivalent state and territory-based schemes to provide individual face-to-face contact with vulnerable NDIS participants.

Until this happens, the commission should continue to support the state and territory schemes and work to resolve, as the member has rightly pointed out, any legal issues that could relate to that, but this is not the answer. We as a government have accepted all of the state Safeguarding Taskforce recommendations and are working to close those identified gaps that fall within the state responsibility as a matter of priority. We are doing that within the envelope of what we can do lawfully. This issue in relation to the commonwealth service and how it should be dealt with has been answered by Alan Robertson SC. He says, 'Look, it can have its own.'

I agree with the member who has moved this bill that funding has been made available. That is something that the federal government and parliament can look to investing in, consistent with that. We have acknowledged the recommendations made by Alan Robertson's report in relation to the CVS, which is consistent with our own task force recommendations and actions. We are supportive of the CVS scheme, and it is progressing its work with the federal government NDIS and NDIS commission on how the scheme can work alongside the NDIS, given the legal limitations.

We cannot as a responsible government come to the parliament and say, 'This sounds like a good idea,' in the face of legal advice which was clearly pointed out to the previous government, in light of the further reports that have investigated this matter and our own task force saying, 'We don't think this should relate to persons living at home unless they are within a state or commonwealth service,' and Mr Robertson's report that says, 'The answer here is to have a separate CVS service.' We will not condone legislation ill thought through and rushed into the parliament.

We can talk about political stunts all we like, but the bottom line is that our job here is to try to provide services in a legislative framework that will not leave our volunteers vulnerable and at risk of civil and potentially criminal liability. We are not in the business here of putting people in the face of harm. We are in the position here to change the law where we can.

I cannot undo the transfer of this model to the federal people; that was already done and dusted. This is Bill Shorten's great baby. We were going to do that. We said, 'Look, it's on its way. We are going to be part of it. We will support the government to achieve that and then think about what safeguard legalities we are going to wrap it around.' That is the situation we are in at the moment. We cannot undo that.

We do agree with the opposition and others, including Mr Robertson, that we need to get on and provide a structure of service with a community visitor scheme funded and applied by the federal government that is valid, that is lawful, that will protect the people who are involved in it and that will be able to provide the services that receive the NDIS services within an envelope of protection. That is an important initiative. We agree with it and we support it. Let's get on with it. We do agree with the mover of the motion in this regard that there is some urgency in relation to this. I cannot undo the mess that we were left with, but we can work productively and promptly, as we have, to try to bring this into CLO.

Sadly, none of this, even if this bill were valid and passed today, would help people in Ann Marie Smith's case. She has died in an apparent tragic circumstance, possibly within a criminal envelope. It is a matter for other groups to make determinations about the conduct or failure to provide protection to Ms Smith. This is a very sad situation. It might have shone the light on this issue as to how we must all work to protect the vulnerable in our community who are living in their own homes, who are our neighbours. I especially seek that that be done in this COVID period.

Ms COOK (Hurtle Vale) (11:22): I thank the Attorney-General for her contribution. I wish to point out that we have also said that this possibly would not have saved the life of Annie Smith, but I have clearly stated that one life saved would be well worth it. I truly believe that this could save a life or more than one.

I point out to the Attorney-General again that this scheme as it stands precludes community visitors from attending sites where there are NDIS participants, which is fundamental to the problem here. I call out the rhetoric around putting people like volunteers and workers at risk. That is why we need to make these changes.

I ask the Attorney-General just how many workers and volunteers have been found to be guilty of an offence in Victoria under their legislation, visiting NDIS participants under modified community visitor state-based schemes. I say none, and I ask the Attorney-General to refute that. I am very happy to be corrected if that is the case, but I am confident I will not be.

I point out again that the Crown law advice was based on a question. Legal advice is based on a question. If you ask a different question, your answer will be different, so why is it that this has not been pursued?

This is not legislation that has been rushed into the parliament. This legislation has been worked on for months and months. I have been working on the community visitor problem for two years. We knew this was coming and we have had people coming to us and working with us on this problem. This is much wanted and much needed, and if it saves one life, it is worth it. I urge the government to reconsider this and I thank the input of everybody who has helped to inform this bill.

The house divided on the second reading:

Ayes 21

Noes 24

Majority 3

AYES
Bedford, F.E. Bettison, Z.L. Bignell, L.W.K.
Boyer, B.I. Brock, G.G. Brown, M.E.
Close, S.E. Cook, N.F. (teller) Gee, J.P.
Hildyard, K.A. Hughes, E.J. Koutsantonis, A.
Malinauskas, P. Michaels, A. Mullighan, S.C.
Odenwalder, L.K. Piccolo, A. Picton, C.J.
Stinson, J.M. Szakacs, J.K. Wortley, D.
NOES
Basham, D.K.B. Chapman, V.A. Cowdrey, M.J.
Cregan, D. Duluk, S. Ellis, F.J.
Gardner, J.A.W. Harvey, R.M. (teller) Knoll, S.K.
Luethen, P. Marshall, S.S. McBride, N.
Murray, S. Patterson, S.J.R. Pederick, A.S.
Pisoni, D.G. Power, C. Sanderson, R.
Speirs, D.J. Tarzia, V.A. Treloar, P.A.
van Holst Pellekaan, D.C. Whetstone, T.J. Wingard, C.L.

Second reading thus negatived.

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