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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-10-27 Daily Xml
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DISABILITY (MANDATORY REPORTING) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 21 July 2010.)

The Hon. S.G. WADE (21:40): In rising to speak on this bill on behalf of the Liberal opposition I would like to take the opportunity to pause and reflect on the fact that this bill is the first private member's bill of the Hon. Kelly Vincent. The Hon. Kelly Vincent has made a solid start to her parliamentary career. She has settled into her role with ease and established herself as a firm advocate for disability issues within this parliament and beyond. I consider that Kelly is poised to have a profound impact on the disability sector. In fact, having a young woman with a lived experience of disability as its Joan of Arc is giving people in the sector renewed hope and energy.

Referring to the first Joan of Arc, historian Stephen W. Richey explained that when the Dauphin Charles granted Joan's request to be equipped for war and placed at the head of the army, his decision must, in large part, have been based on the knowledge that every orthodox and rational option had been tried and had failed. That was very much the state of mind of people in the disability sector. The appointment of a young female with a disability as a member of this council is similarly unorthodox, and defies three of the entrenched stereotypes of this place.

I do not want to overdraw the analogy of Joan of Arc—after all, Joan was burnt at the stake at 19 and Kelly is comparatively elderly at 22—however, I believe that she is a rallying point for the sector and is already winning battles.

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): The member needs to be careful when mentioning a lady's age in Hansard!

The Hon. S.G. WADE: I am sure that the budget treated people with disability better than it would have had it not been for Kelly's presence in this chamber. This is not Labor expressing its social justice heritage; it is politics at its crudest, as Labor knows that without a mandate it needs the honourable member's support in this chamber. The Hon. Kelly Vincent has huge goodwill in her crusade, but let us remember that even Joan of Arc did not fight alone. I urge the disability sector to continue to use the opportunity to build unity and develop strategies that pursue shared goals.

In addressing this bill more directly, I do so in two capacities: first, as the Liberal shadow minister responsible for disability matters in this chamber, supporting the member for Bragg in another place, our spokesperson on disability issues; and, secondly, as shadow attorney-general. This bill is about much more than quality assurance in the disability sector; it is about the rights of a whole community of South Australians, rights that deserve to be protected by legal processes. Abuse that is liable to be reported under this bill may well be a crime under the criminal law, for example, assault, rape, abuse or neglect.

The Liberal Party welcomes the bill and will support it in principle, as well as its passage through the council. We appreciate that it may not be perfect, but we are keen to work with Dignity for Disability, the government and crossbench MLCs to make the bill better and to develop the scope and operation of the scheme in the context of finite resources and a broader suite of measures necessary to maximise the citizenship, protection and wellbeing of people with disability.

I regret that the bill is not a more thoroughgoing review of the Disability Services Act. At the election, and since, the Liberal Party has consistently urged a rewrite of the Disability Services Act. I urge the Hon. Kelly Vincent to use her moral authority to promote a root and branch review of the act, not as an end in itself but as a key foundation to a shift to a quality and outcome focus.

In considering this bill I sought the views of the Julia Farr Association. The Julia Farr Association is an independent, non-government entity based in South Australia that fosters innovation by sharing useful research, evaluation and information to promote policy and practice that supports people living with disability to access the good things in life. The association has provided me with two detailed responses, and I understand that it is making copies of these submissions available to each parliamentary group in the chamber. Given the quality of the research, this speech unashamedly relies on those submissions and substantially summarises the information and perspectives provided by the association. While I directly quote the submission only once, this speech is fundamentally a restatement of the thoughts that have been shared with me so that those key thoughts can be shared with the public.

The Hon. Kelly Vincent's second reading explanation and the Julia Farr Association's submissions both rightly focus on the foundation of this bill being the citizenship rights of people with disability; both reference the United Nations Convention on the Rights of People with Disabilities. Three clauses of the convention, in particular, highlight the importance of safeguards in that they state that every person living with a disability has a right to the following: to be safe from torture and inhumane, cruel and degrading treatment or punishment (Article 15); to be safe from exploitation, violence and abuse (Article 16); and to have his/her physical and mental integrity protected and respected on an equal basis with others (Article 17).

While the Liberal Party generally does not consider that codification of rights is the best way to protect rights, universal human rights principles understand and inform our understanding of quality of life. As well as acknowledging individual rights, we should ensure that people with disability are fully included in the South Australian community and afforded citizenship. Promoting citizenship for people with disability is not merely the declaration of esoteric rights; it is a fundamental strategy to prevent abuse. When people are excluded and dependent, they are more vulnerable.

Julia Farr Association highlights that people living with disability, because of circumstances, are often at greater risk of diminished personal networks of family and friends when compared with their non-disabled peer citizens. Their dependence on their relationships with professional support providers or unpaid carers presents a further barrier to speaking up because the few relationships they may have may consequently be lost.

The absence of regular visits from and time with family and friends means that there is none of the natural service monitoring that takes place through such relationships. Additionally, people may fear that they will be subject to physical reprisal if they report abuse and neglect or that this abuse and neglect will intensify as a result.

Julia Farr Association highlights that, with service arrangements that place power with the helper, rather than the helped, people with a disability face severe restrictions on choice, with the recipients seen as less active citizens and 'more as the embodiment of a collection of tasks that need to be performed by support staff'. This can create dependency, passivity, restriction, even abuse, neglect and oppression, all of which maintain and deepen cycles of disadvantage.

Mandatory reporting arrangements such as those proposed in this bill, and all elements of the system, must uphold people having genuine opportunities to have and retain choice and control in their life, remain active and included in their community and be supported in ways that lead to citizenship. To this end, earlier this year the Julia Farr Association published its model of citizenship support, and I commend it to members of the house.

So, with civic rights and citizenship as the bedrock, what is the situation? What is the incidence of violence and abuse against people with disability? The Julia Farr Association highlights available research evidence, which estimates that sexual assault is experienced at some point in their life by somewhere between 50 and 99 per cent of people with intellectual and psychosocial disability, but such assaults are three times more likely to be violent or severe and they are much more likely to be of a repeated or continuing nature. Other studies suggest that up to 75 per cent of all elder abuse cases involve the abuse of an older person with a cognitive disability.

People living with disability and their associates typically report extensive experience of abuse, neglect and exploitation in the daily life of people living with disability—abuse which involves emotional and psychological abuse and neglect, physical and sexual abuse, sexual and other harassment, victimisation, vilification, financial and sexual exploitation, and neglect of basic survival-related needs.

They also report the abuse of a range of treatment interventions frequently used upon people living with disability, including physical, mechanical and chemical restraint, seclusion and other restrictive practices. In that context, I acknowledge the work done by the South Australian Council for Intellectual Disability to encourage the disability community in South Australia to consider reform opportunities in the area of restricted practices. They particularly highlight the work of the senior practitioner in Victoria and the success that office has had in reducing the unreasonable restraints on people with disability.

In relation to the identification and reporting of violence and abuse, Australian and international studies referred to by Julia Farr Association (JFA) suggest that current institutional responses to abuse and neglect of people living with disability are entirely inadequate. For example, one international study concluded that 40 per cent of crimes against people living with mild to moderate developmental disability and 71 per cent of crimes against people living with more severe developmental disability went unreported to the police.

Many crimes against people with cognitive disability go unreported because victims and their associates do not recognise the evidence of abuse. After all, people living with cognitive disability may be socialised to expect a certain level of personal indignity, mishandling, violence and neglect as a feature of service delivery. That is likely to be particularly true if somebody has had a long experience of supported or institutional care. They effectively become desensitised or resigned to such conduct. In more extreme cases they may have come to believe that abuse, neglect and exploitation are 'deserved' because of their disability, the 'burden' they represent others and their lack of social value.

I think the relevance of mandatory reporting is particularly important to these people because they are not in a cognitive situation or a socialisation situation to be able to name the evil. Professionals who are working with them should rightly be expected to name it for them. Associates in that context, too, may take the view that abuse and neglect of people living with cognitive disability is inevitable and unavoidable, and what the Hon. Kelly Vincent and Dignity for Disability is doing with this bill is saying that abuse and neglect of people with cognitive disability is not inevitable, not unavoidable, and this parliament will not accept it.

The Julia Farr papers also look at the problems with investigation and prosecution of violence and abuse. They highlight a range of problems that people with cognitive or psychiatric disability face in terms of policing or prosecution. People with disability are often not believed by police officers when they complain about abuse, neglect or exploitation, particularly if they have a psychiatric disability. Even if police are inclined to believe the victim, they may not be confident that the justice system will give their client, the victim, the credibility they need to be able to come to successful conclusion.

Police may see the issues involved as matters for the social service system to deal with, rather than what they are—criminal matters. People with disabilities often face stereotypically negative views about the ability of people with cognitive disability to provide cogent, consistent and credible evidence in court. People living with cognitive disability in particular are also disadvantaged by the adversarial system and by techniques of cross-examination which may confuse and intimidate them for reasons related to their impairment and disability.

The bill before the council is clearly striving to address this very disturbing context. The bill proposes a regime where certain professional groups will have a mandatory responsibility to report to the department a person living with a disability who they suspect on reasonable grounds to be subject to abuse or neglect. Julia Farr Association raised a question about the definition of abuse. They highlight the fact that the definition is, in their words, a compound definition. In other words, it starts with a general definition of abuse, and that reads:

Physical or emotional abuse of the person, or neglect of the person, to the extent that the person suffered, or is likely to suffer, physical or psychological injury detrimental to the person's well being.

JFA highlights that this is followed by a clarifying statement that arguably could serve to narrow the meaning of the preceding words:

[that] abuse and neglect 'includes a reasonable likelihood of the person being killed, injured, abused, neglected or sexually abused by another person'.

I would hope that the Hon. Kelly Vincent could provide the council with clarification on her advice as to how that definition is expected to operate.

The Julia Farr Association suggests that the bill's definition of abuse and neglect may benefit from being broadened. For example, it questions whether the definition would sufficiently incorporate physical, sexual or financial exploitation. The JFA also asks whether the definition only covers actual abuse and neglect, and whether it should also cover the risk of abuse and neglect.

This ambiguity also potentially compromises the immunities that attach to notifiers. Additionally, it is arguably inappropriate to require a notifier to assess if there is a reasonable likelihood that the person will be, or is being, killed, injured or sexually abused by another person. I understand that the JFA is suggesting that that may require a level of investigation that would more appropriately be undertaken by a protection agency.

The JFA suggests that it may be preferable for intervention to be triggered when a notifier suspects—I stress that word—that a person is subject to actual harm or to significant risk of harm, where harm includes all forms of exploitation, violence, abuse and neglect. So, as I understand it, they are suggesting that the threshold should be 'suspects', rather than 'reasonable likelihood'.

The bill focuses on people living with disability who are unable to communicate a complaint to another person that they are being abused or neglected, or who are unable to understand the nature of abuse and neglect in order to make a complaint about it. It does not require mandatory reporting in relation to people whose disabilities would not prevent them from recognising or reporting their own abuse. I welcome that distinction. I think it is important not to take away from people their privacy, dignity or choice. It seeks to protect the dignity of people with disability who cannot report abuse and neglect themselves.

The bill does not specify the agency to which reports will be made; this is to be determined by regulation. The chief executive of the agency must ensure the report of each notification is made and referred to an appropriate authority of the state for further investigation and action. The JFA considers that there could be a potential conflict of interest in situations where a reported incident of abuse or neglect relates to another public service related to the department, or the government of South Australia, such as Disability SA or Housing SA.

The JFA suggests that there would be value in the introduction of an independent safeguards commissioner to oversee the bill's provisions, investigate and resolve reported cases of abuse and neglect, be responsible for overseeing the community visitors scheme and ensure best practice safeguarding a policy and practice that aligns with the UN's CRPD. According to the JFA, such an independent officeholder would reduce the risk of potential inconsistency between the bill and human rights principles.

If the agency responsible for the bill were to be a social service agency, the JFA highlights the risk that abuse and neglect to people living with disability may not be treated as criminal acts when they are criminal acts, but rather as welfare related concerns and that that may serve to undermine the rights of people with disability. I stress again that the Hon. Kelly Vincent's bill does not suggest that it be a welfare agency, but I think the JFA rightly highlights concern about how important it is that the agency that is going to receive the complaints is not in a conflict of interest situation. Thinking on the run, if you like, one office that may well be a good recipient for those complaints might be the Office of the Public Advocate.

The JFA suggests that it is essential that the legislation is appropriately harmonised with South Australian criminal law, and this may require the specification of additional specific offences related to the exploitation, violence and abuse of people living with disability. The bill is focused on the outcome of ensuring that members of specified professional groups notify suspected abuse and neglect to an appropriate authority. The JFA considers that the assumption underlying that mandatory obligation—that is, that members of these professional groups currently fail to make such notifications on a voluntary basis—is in fact supported by research evidence.

A mandatory reporting obligation, with its concomitant risk of prosecution for failure to report, has the potential to raise awareness of abuse and neglect of people living with disability among these professional groups and to ensure that such abuse and neglect are better recognised and responded to. Julia Farr does, however, sound a word of caution. At this point I will quote JFA directly:

The proposed introduction of a system of mandatory reporting does, in our view, warrant careful consideration. Mandatory reporting is now an almost universal feature of child protection systems around Australia and comparative jurisdictions. However, it remains one of the most controversial elements of child protection policy. There are numerous reasons for this, including its significant financial cost, its propensity to generate reports which are incapable of being properly investigated due to their sheer volume (mandatory reporters tend to take a 'just in case' approach to reporting), and its potential to stigmatise children and families. This raises the question about whether such resources would be better directed towards other endeavours that are likely to ensure a more comprehensive framework of safeguards is in place for people living with disability as highlighted in our previous communication.

Mandatory reporting will not, of itself, do anything to protect people living with disability from harm; this will depend upon what happens after a notification is made. Above and beyond the scheme itself, the introduction of mandatory reporting is likely to draw out need for additional resources and challenge the system to respond to reported incidents of abuse and neglect. We need to make sure that each additional allocation of resources could not be better directed towards other endeavours likely to have a more direct positive impact on people's lives.

The Liberal Party appreciates the wisdom of JFA's observations and is keen that we tailor mandatory reporting to the specific needs of the disability sector in South Australia and that we develop it in the context of a broader suite of protection. The Liberal Party agrees with JFA that the mandatory reporting regime needs to be developed as part of a broader suite which maximises protection within available resources. Such a broader suite is important to support people with disability who are not intended to be subject to mandatory reporting; for example, people able to speak up for themselves.

JFA suggests that a broader suite could include a range of elements, including: mandatory reporting arrangements; an independent community visitors scheme; better funded, more coherent and cohesive independent advocacy arrangements; access to supported decision-making; and a procedure to promote, uphold and advance known best practice in safeguarding policy and practice. As an aside, I note that a number of these elements were foreshadowed in the Liberal disability services policy at the 2010 election.

The bill needs to be accompanied and supported by an effective legislative and institutional framework for the investigation and assessment of reports, for the provision of necessary support and assistance to vulnerable people, and for the prosecution of these harms. While Julia Farr says it believes that mandatory reporting should be looked at as an adult protection option amongst a suite of measures, it also says that it would not support mandatory reporting as a stand-alone option. JFA suggests that its strongly preferred approach would be for the South Australian government to develop, in consultation with the sector, a progressive, high level, multi-agency 'vulnerable adult harm prevention strategy'.

Such a strategy ought to mandate work on a wide range of measures, including: the establishment of an effective vulnerable adult protection system comprising comprehensive legislation and a designated institutional capacity; awareness raising and sensitisation of human service and justice agency personnel in relation to abuse, neglect and exploitation of vulnerable adults; agency capacity building initiatives; guidelines for inter-agency cooperation to prevent and respond to abuse, neglect and exploitation of vulnerable adults; strategies to support vulnerable adults to escape violence and abuse, including service system based violence and abuse; and increased availability of individual and systemic advocacy for people living with disability.

In conclusion, I thank Dignity for Disability and the Hon. Kelly Vincent for putting the issue of mandatory reporting on the table. I thank the Julia Farr Association for its thoughtful reflections on this bill. We in the Liberal Party are pleased to support this bill because we think that mandatory reporting, within the context of finite resources and a broader suite of options, would improve the lives of people with disability in South Australia.

The Hon. Kelly Vincent's approach in putting this bill before this council contrasts markedly with that of the government. Kelly Vincent has tabled the bill and she has allowed the council to engage in the debate. The Julia Farr Association accepted my invitation to provide input on the bill and the Hon. Kelly Vincent and other members are able to engage in an open and inclusive dialogue. In contrast, the Minister for Disability Services, in response to a Dorothy Dixer this afternoon in the other place, advised that the Ministerial Disability Advisory Council, a closed-door council which provides advice to the minister and her alone, as it is not normally provided to the public, has been asked to look at protection of vulnerable people.

I suspect that this is in response to the gathering momentum for change. Not only is there the D4D bill on mandatory reporting, as I said the Liberal Party has been calling for a review of the Disability Services Act and our policy at the last election had a range of quality assurance measures in it. SACID, as I said, has been calling for a restrictive practices regime to be established in South Australia. As usual in disability services, the government continues to fail to show any real insight into disability. It has engaged yet again in catch-up. So be it. The Liberal Party stands ready to continue to engage D4D and the broader disability sector to improve the lives of people with disability in South Australia, and we support this bill.

Debate adjourned on motion of Hon. B.V. Finnigan.

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