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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-11-12 Daily Xml
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DISABILITY SERVICES (RIGHTS, PROTECTION AND INCLUSION) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

The Hon. K.L. VINCENT: I would like to begin by saying that Dignity for Disability was very pleased to see the reference to the United Nations Convention on the Rights of Persons with Disabilities included in clause 12 of this bill. Members may recall that the inclusion of the convention was something that I hoped to do in my own disability services amendment bill when it was first drafted. However, I was at that time dissuaded from doing so on advice from parliamentary counsel. Suffice to say I am glad to see that we now have a federal precedent for including the convention in legislation, namely, in the National Disability Insurance Scheme Act, and it now seems possible to reference the convention in state legislation also. This is a pleasing move forward.

I have lost count of the number of times that I have referenced the UNCRPD on behalf of Dignity for Disability in this very parliament, and I do that referencing for good reason. I believe that any legislation not centred on the rights, needs and abilities of the people it is written for is essentially poor legislation and so it is important to include these reminders of those people in any legislation that we pass. For this reason, I am hopeful that this inclusion of a UN convention in a bill may be the first of many in this state.

This is one of only a few respects and intent in which this piece of legislation reaches further than Dignity for Disability's bill introduced to this place some time ago. Many of the ideas contained in this bill and the government's other policy announcements in this area of disability of late are ideas that were contained in my private member's bill. Expanding the community visitors scheme to include the disability sector at large is one such initiative, as is the introduction of a senior practitioner to oversee the use of restrictive practices—a matter I will return to later.

The rights of people with disabilities is an area in which I have obvious and significant interest. It is the area of public policy that in many respects propelled me to my role in this very place and an area that consumes the vast bulk of my officers' time and resources, to say the least. Members will recall that the main reason for my moving the bill at the time I did was to put forward a proposal to break the government's long silence on the issue of that time.

Members are also probably aware that a renewal of the state's Disability Services Act 1993 was most recently recommended in the Strong Voices report of 2011. I am pleased that this proposal has sparked passionate debate and honest discussion—although the discussion has taken a little too long at times—about how we as a parliament move legislation concerning the rights of people with disabilities to a place where it will not only provide better supports to these people now but also be easily adaptable and applicable to the foreseeable future.

The measures in this bill, as well as the other recent changes that I have mentioned, such as the expansion of the Community Visitors Scheme, are steps towards this and are measures for which Dignity for Disability has long been advocating, as our record in this parliament and in the public arena will demonstrate. Frankly, it would be very easy for me to embark on a rambling journey down the winding path of negative politics, arguing about whose bill is better, who got there first or whose name should go where. What is harder sometimes, and what is right, is to hold my head up high, knowing that Dignity for Disability's tireless and ongoing advocacy and willingness to put working effectively ahead of inflating egos has helped lead the bill before us, and the important move toward change that it represents.

Members are aware that I will be moving amendments to this bill to insert into it a clearly defined role and powers of the senior practitioner. These amendments are very similar to the description of the senior practitioner in my own bill. The intent is to define the role and the things to be considered 'restrictive practice', including physical and chemical restraint, such as forced overdosing of medication to control what may be deemed challenging behaviours, as well as restraint and seclusion of people with disability.

The reason for wanting to define this role in legislation I suppose is twofold, the first being the concern Dignity for Disability holds that, without having the role protected in legislation, it could be all too easily altered at the whim of government or lost to the different priorities of a new government. The second is our concern that a lack of definition of the role essentially at once gives the practitioner limitless powers and none. We think it is vital that the practitioner is viewed as a statutory role and not as a single person. While I in no way wish to insinuate that I believe there is any evil intent in this role—and it is widely known that I have great respect for the person who currently holds that role (Professor Bruggeman)—I do think it is important that each person who may come into that role over time have a clearly defined standard by which to work so that we do not encourage overzealousness or excuse inaction.

The government has insisted, when I have raised this issue previously, that the role could be governed by regulation, emphasising the importance of flexibility. To my mind the very important thing about rights is that they are, at least to some extent, inflexible. Rights have a tendency to be cut in absolute terms, and I am reluctant to accept that my rights as a person with disability, or anyone else's, should be regarded as more flexible than the rights of women, or as a citizen of this country or in fact a human being.

If, after a time, the legislation governing the role of the senior practitioner needs to be changed for any legitimate reason, then the parliament of the day has a duty to change it but I do not think that we should simply 'suck it and see' in this instance. I would certainly encourage all members to support the amendments that I believe they have before them in that regard.

It is also important to point out that this is, in many respects, a very good piece of legislation that is long overdue and has what some may call very noble aims. It is not, however, perfect and, even if it were, it would not serve as a panacea for all the social and systematic ills that affect people with disabilities in our community presently.

People with disabilities still face enormous difficulties, to say the least, in accessing housing, support services, equipment, public transport and a vast range of other areas. This bill, for example, will not make our buses more accessible or the workplace more ready to accept people with disabilities. People with disability are still subject to abuse and are victims of violence and sexual offending at a far higher rate than the general population. If they report those offences they still face significant barriers accessing the justice system. People with disabilities face similar barriers and experience similar exclusion when attempting to access employment, as I just said.

This bill is a start; it addresses the need to protect some of the most basic rights in some context. It is a good start but there is much work that still needs to be done. We, as a parliament, have a duty not to rest on our laurels even if we do pass what is essentially a good bill with this piece of legislation before us.

As the Aboriginal Rights Movement did not end, thankfully, with the now famous apology, our movement and our work as a parliament on these issues does not end here. I hope that this bill might serve to spur on what will lead to further gains and I look forward to working towards those with or against—whatever is necessary—the government of the day. I commend the bill to the council.

The Hon. T.A. FRANKS: I rise to state the Greens' position on the Disability Services (Rights, Protection and Inclusion) Amendment Bill 2013 at clause 1, and I thank the minister for providing me with that indulgence. The Greens support the bill before us. I would particularly note that we are very pleased that it references the United Nations Convention on the Rights of Persons with Disabilities and, indeed, enshrines the right of people with disability to exercise choice and control in relation to their decision-making, and reflects other national and state discrimination legislation and progress, and mandates a requirement for disability service providers to have accessible and well-publicised complaints and grievance procedures. It also provides protections for those who complain or report bad treatment from victimisation and mandates a requirement for disability service providers to have in place safeguarding policies and procedures.

It further provides a power to enable the Minister for Disabilities or the relevant minister to make regulations covering the issue of reporting on outcomes with a view to monitoring and acting and certainly addressing the need where it is identified. I want to particularly thank minister Piccolo for the extensive consultation process that was undertaken by him and his office. The minister has worked long and hard to get this bill here. I acknowledge that he was not the first minister to be working in this area. I acknowledge minister Hunter, who is currently in a different portfolio area, and thank him for his contributions in previous incarnations in this role and, indeed, minister Rankine. It has been a long time coming. I know the Greens share the frustrations of those who would have liked to have seen this legislation well before now.

I also thank David Caudrey, the Executive Director of Disability SA, and Barbara Weis, Director of Policy and Planning for providing my staff with a briefing on this particular bill. I thank the various stakeholder groups who provided their comments to my office, in particular Phil Farrow, Executive Manager at Bedford Group, Dr Greg Ogle, Senior Policy Officer at SACOSS and Andrew Daly, the Executive Director of the Royal Society for the Blind, among many others.

We are very pleased, as I said, to see the references in this bill to the United Nations Convention on the Rights of Persons with Disabilities. In July 2008, Australia ratified that convention and I am very pleased that this is the first time we have seen it in our legislation here in South Australia. There are principles there of inherent dignity; individual autonomy, including the freedom to make one's own choices and independence of persons; nondiscrimination; full and effective participation and inclusion in society; respect for difference and acceptance of persons with disabilities as part of the human diversity in humanity; equality of opportunity; accessibility; equality between men and women; and respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

I do acknowledge the tireless efforts of the Hon. Kelly Vincent in this area. Her private member's bill, I believe, played no small part in the legislation that we have before us, and her role in this chamber has been something that I think as a state we should be very proud of in terms of the voice of people with disabilities in our legislature. I understand that, along the way, there had also been quite a few concerns raised by the sector with the current minister Piccolo, particularly with regard to choice and control and decision-making, and that they have been addressed in the legislation that we have before us from earlier drafts. It is a far-advanced bill on previous government drafts. As I say, the human rights framework that it has embraced is a very welcome move forward.

As the member for Morialta did in the other place, I also acknowledge the work of not just advocates in the disability sector but also the political parties who have not only contested elections, as Dignity for Disabled did, and who have indeed won elections, as Dignity for Disability has done, into this parliament. I pay particular tribute to Dr Paul Collier, who may well have been on these benches, and certainly I think that the efforts of Kelly Vincent have done the vision of both that political party and I am sure Dr Paul Collier proud in this place.

I will not take up too much of the council's time, as I know that we would in fact like to see this bill passed. With that, I reiterate the Greens' support for this legislation. I do, again, express a concern that it has taken a very long time to get here, but now that it is here, let's get on with it and let's see it appropriately implemented, enforced and improved as we go.

The Hon. S.G. WADE: Thank you, Mr Chair. I might seek your guidance, too. I understand that the council might be inclined to report progress later in the bill. I have an issue relating to clause 12. I just thought it might assist the minister if I foreshadowed it now and then he might be able to consider it.

The Hon. Kelly Vincent and the Hon. Tammy Franks have both highlighted the fact that this bill references the United Nations Convention on the Rights of Persons with Disabilities. I, too, welcome that, because it reflects an increasing rights focus in our approach to disability services. I, too, welcome the legislation but I think it is important that we understand what real entitlements are being given to people with disabilities.

By way of background to my question, my understanding is the relevant piece of legislation at the state level in relation to the application of international law is the Administrative Decisions (Effect of International Instruments) Act 1995 which says in section 3(1):

An international instrument (even though binding in international law on Australia) affects administrative decisions and procedures under the law of the State only to the extent the instrument has the force of domestic law under an Act of the Parliament of the Commonwealth or the State.

My reading of this bill, and for that matter the second reading of the minister, is that:

The United Nations Convention on the Rights of Persons with Disabilities adopted at New York, United States of America, on 13 December 2006, is recognised as a set of best practice principles that should guide policy development, funding decisions and the administration and provision of disability services.

My understanding is that that is an aspirational statement in terms of how the government and the parliament aspires that we would engage with both legislation and services for people with disabilities. I ask the minister: is it the government's view that the reference in clause 12 (which will relate to schedule 1) will have any effect under the Administrative Decisions (Effect of International Instruments) Act 1995? In particular, I ask whether there will be any right for people with disabilities to challenge decisions under administrative law on the basis of the legislative revision that is before us.

The Hon. I.K. HUNTER: In response to the honourable member's question, my advice is—and I think he said quite correctly—that section 12 is written in aspirational terminology. It is there in a sense to guide the way we do our business as a government, the way we write our policies. My advice is that there is no sense in which this act will bind any particular person to the United Nations statement. That is a matter for the commonwealth government, but it is a guiding principle for how the government would see the whole disability services industry (government run and NGO run) abiding by, but they are the core principles that we would expect our new processes to enact.

The Hon. S.G. WADE: I thank the minister for the response. I mildly challenge the minister's response to the extent where he talks about international instruments being a responsibility of the federal parliament. When it comes to the social elements of international law, considering that this parliament and this level of government is so rich in human services, one would expect that a lot of the human rights legislation would be relevant to our local laws and services. I reflect in that sense on the number of pieces of legislation that the library has been able to identify for me in South Australian law that already recognise international law. What I found interesting about the list is that they are overwhelmingly economic; in fact, I can only see one that is social legislation.

For example, the following South Australian acts refer to international instruments: the Fair Work Act; the Sale of Goods (Vienna Convention) Act; the Protection of Marine Waters (Prevention of Pollution from Ships) Act; the Petroleum (Submerged Lands) Act; the National Environment Protection Council (South Australia) Act; the Motor Vehicles Act; the Marine Safety (Domestic Commercial Vessel) National Law (Application) Act; the International Transfer of Prisoners (South Australia) Act; the Heavy Vehicle National Law (South Australia) Act; the Environment Protection (Sea Dumping) Act; the Electronic Transactions Act; the Constitutional Powers (Coastal Waters) Act; and the Civil Aviation (Carriers' Liability) Act.

The only one that I could see in the social domain was the Adoption Act. All of those pieces of legislation reference international instruments, and I welcome and expect that because we are a state parliament which has, shall we say, an awesome responsibility, an onerous responsibility, if you like, to provide legislation and services that impact on the social dimensions of people's lives.

It may well be that in years ahead our parliament will be attracted to, shall we say, more explicit references to international instruments in disability legislation and other pieces of legislation. I certainly welcome the addition of this particular clause because I think it does remind us of our responsibilities. As the act itself says, this is best practice, and I commend the government for including that clause.

It will be interesting to see how it actually works out in practice. I am sure that the Hon. Kelly Vincent and other members of this place will not hesitate to remind whichever party forms government that we have put this down in the legislation and we have indicated that that convention is relevant to, if nothing more, our self-assessment of our performance in providing support for people with disability.

The Hon. I.K. HUNTER: I largely concur. I do not even feel mildly challenged by the Hon. Mr Wade's statements. I think we agree. Just for clarification, the international agreements are the responsibility of federal parliament to enter into. That was the intent of my previous explanation. Certainly human rights legislation is relevant to our local laws and our service provision. We indicate how we intend to deliver state government provided services by reference to this international instrument, but section 12 certainly is not creating a legislative head of power that would have any other work to do at all.

Clause passed.

Clauses 2 and 3 passed.

The ACTING CHAIR (Hon. G.A. Kandelaars): We have an amendment in the name of the Hon. Kelly Vincent to insert a new clause 3A.

The Hon. I.K. HUNTER: Mr Acting Chairman, my understanding is that the Liberal opposition have indicated that they are not at this stage prepared to proceed after the amendment stage, so I am relatively relaxed as to whether we ask Ms Vincent to move her amendment and then report progress or report progress now.

The Hon. K.L. VINCENT: That being the case, in my mind it would be better to move my amendment at a time when we have the full attention of the committee and everyone is prepared to proceed.

Progress reported; committee to sit again.

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