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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-05-06 Daily Xml
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Disability Inclusion (Restrictive Practices - NDIS) Amendment Bill

Committee Stage

In committee.

(Continued from 4 May 2021.)

Clause 5

The Hon. C.M. SCRIVEN: I move:

Amendment No 25 [Scriven–1]—

Page 13, lines 8 to 15 [clause 5, inserted section 23N(5)(b) and (c)]—Delete paragraphs (b) and (c)

Amendment No. 26 is also linked to this amendment, so I will not proceed with that if this one fails. It removes the search powers from the restrictive practices orders. Notwithstanding the comments that were made by the minister at clause 1, these amendments do respond to serious concerns from a number of stakeholders.

The power to search a person's space or body rightly rests with police and should remain that way, is the strong view of those stakeholders. Further, disability care staff may place themselves at risk by conducting searches without appropriate safety training and they also damage their trust relationship with the people they care for. Therefore, I commend the amendment to the committee.

The Hon. J.M.A. LENSINK: The amendment is not supported. The provisions are aimed at supporting the safety of prescribed persons, which indeed is underpinning the entire bill. Prescribed persons include NDS participants who may obtain and conceal food, which may pose a choking hazard or serious health risk, or obtain and conceal unsafe items, including sharp objects, that place themselves and others at risk. The provisions in this bill reflect similar provisions in other legislation such as the Mental Health Act.

I think the honourable member did ask me a specific question about the feedback in relation to search powers. I should nuance that. The consultation did not identify that the proposed search powers were a significant theme across all the feedback received. However, there were a few concerns from some people. Any concerns that stakeholders have can be addressed via the regulations and the guidelines.

The government intends to provide additional requirements through regulations and guidelines about safe and respectful conduct of these processes to maintain the dignity of prescribed persons, which will include limitations on bodily contact.

The Hon. C. BONAROS: We have canvassed this issue earlier in the debate—the reasons why these search powers are important, and I agree wholeheartedly they are important and they are necessary for the reasons the minister has outlined. I, again, know firsthand about the dangers that food in particular can cause to someone in these situations. It can be the difference literally between life and death for someone who is very ill, and it is something that takes place very often.

So it is absolutely necessary to be able to, within defined parameters, search someone's clothing or possessions and remove from them things which pose an extremely dangerous risk. I do not accept the arguments that have been put by the Deputy Leader of the Opposition; in fact, I categorically reject them. I think the minister has hit the nail on the head with this provision.

I also look forward to the additional requirements that will apply in relation to these provisions through regulations and guidelines about the safe and respectful conduct of these processes to maintain the dignity of the prescribed person in question, and particularly how they will be drafted in terms of the limitations of bodily contact with the individual concerned. For those reasons, I and SA-Best will be opposing the amendment.

The Hon. C.M. SCRIVEN: I do not think the opposition has any arguments in regard to the need to search for things such as food. My question to the minister would be: has anyone got into trouble, as it were, for doing a search for food?

The Hon. J.M.A. LENSINK: Can the honourable member clarify whether she is asking whether somebody has been in trouble with the law for an assault charge or something of that nature; is that what she means?

The Hon. C.M. SCRIVEN: Any trouble of that nature, if the person was a worker, yes.

The Hon. J.M.A. LENSINK: The advice I have received is: not that we are aware of, but that does not necessarily mean it has not been the case. We have line of sight these days over our own disability accommodation, as we no longer regulate or fund the rest of the sector; that is done by the Quality and Safeguards Commission. Furthermore, even if that had been the case—if we were still the regulator—these are matters that are before the courts and not necessarily fed back to disability services within DHS.

The Hon. C. BONAROS: Can I just add something to those comments, Chair, because I think it is important, again speaking from the experience I know of? I think we need to be mindful that each and every time one of these persons has something removed from them there has always been the obligation on those workers to notify the families and the guardians of those individuals, even if it is something as simple as, 'Jane stole a biscuit today and put it in her pocket.'

My experience has been that, even in those simple cases, guardians will receive a call to let them know that there has been an incident where somebody has had to remove something from that individual. I think that goes some way towards the reason for this amendment, because they are frightened of being in trouble for the sort of behaviour they have undertaken to protect the person in question. So I think the reasons for these amendments really speak for themselves in terms of protecting the workers as much as protecting the individuals who are being cared for.

Amendment negatived.

The Hon. C.M. SCRIVEN: I move:

Amendment No 27 [Scriven–1]—

Page 13, after line 29 [clause 5, inserted section 23N]—Insert:

(7a) An Authorised Program Officer who authorises the use of level 1 restrictive practices in relation to a prescribed person must, in accordance with any requirements set out in the regulations, cause a written notice to be given to the Senior Authorising Practitioner setting out—

(a) the name of the Authorised Program Officer and the relevant prescribed NDIS provider; and

(b) the name of the prescribed person in relation to whom the authorisation relates; and

(c) the restrictive practices that were authorised; and

(d) the reason why the restrictive practices were authorised; and

(e) the steps, if any, taken by the Authorised Program Officer or the relevant prescribed NDIS provider to review the use of the restrictive practices used pursuant to the authorisation; and

(f) any other information required by the regulations.

This creates reporting arrangements from authorised program officers to senior authorising officers. The original bill was silent on requirements for record keeping or reporting by authorised program officers, but this amendment ensures that decisions are justified, that they are recorded and that they are reported. This also links to my amendment No. 74 to require reporting by the senior authorised officer. I think it is very important in terms of making sure that, when we have such intrusive powers, they are not only justified but are recorded and reported appropriately so that there is a level of transparency and accountability around them.

The Hon. J.M.A. LENSINK: While the government agrees with the intent of the honourable member, we do not agree with the method, so I will not be supporting this amendment. We have sought to minimise the administrative burden on NDIS services, and we are in the process of procuring an ICT system that supports data collection and reporting functions. While the government supports measures that increase accountability in the use of restrictive practices, it was intended that this be incorporated into the regulations, consistent with what we have said all along, to support consultation with providers on the best way to do this so that there is no doubling up of effort.

Amendment negatived.

The Hon. C.M. SCRIVEN: I move:

Amendment No 72 [Scriven–1]—

Page 20, after line 15 [clause 5, inserted section 23ZB]—Insert:

(3) Subsections (1) and (2) do not apply to a prescribed person in relation to whom the Senior Authorising Officer or an Authorised Program Officer is performing a function or exercising a power, or restrictive practices are to be used (as the case requires).

This amendment relates to not issuing a fine to a person who is subject to a restrictive practices order if they resist it. This amendment ensures that third parties may be fined if they interfere with an authorised restrictive practice but ensures that a person with a disability who is the subject of that practice and who may object is not guilty of an offence. I think it is an important clarification that we hope the chamber will support.

The Hon. J.M.A. LENSINK: The honourable member will be pleased to know that we will be supporting this amendment. There was not any intention to apply these provisions to prescribed persons, such as NDIS participants.

The Hon. C. BONAROS: I indicate for the record SA-Best's support for this amendment.

Amendment carried.

The Hon. C.M. SCRIVEN: I move:

Amendment No 74 [Scriven–1]—

Page 20, after line 38—Insert:

23ZE—Minister to provide annual report on operation of Part to Parliament

(1) The Senior Authorising Officer must, not later than 31 October in each year, cause a report on the operation of this Part during the preceding financial year to be prepared and provided to the Minister, setting out—

(a) the number of Authorised Program Officers authorised by the Senior Authorising Practitioner during that financial year; and

(b) the number of authorisations of the use of level 1 or 2 restrictive practices by the Senior Authorising Officer during that financial year (including any authorisations of the further use of such restrictive practices); and

(c) the kinds of restrictive practices authorised to be used by the Senior Authorising Officer during that financial year; and

(d) any other information required by the regulations.

(2) The Minister must, within 6 sitting days after receiving a report under this section, lay a copy of the report before both Houses of Parliament.

As mentioned, the original bill was silent on reporting. This amendment requires that the minister provide an annual report on the operation of this part to parliament and requests that that record a number of items. Again, it is an important aspect in terms of accountability.

I understand the government intends to move three amendments to this amendment and we think that those amendments weaken our amendment slightly. We would certainly prefer our amendment in its position, but will listen carefully to why the government believes their changes to our amendment is critical. In Labor's view, reports should be standalone and timely, which is why we prefer the amendment as I moved it today.

The Hon. J.M.A. LENSINK: I move to amend the Hon. Ms Scriven's amendment as follows:

Amendment No 1 [HumanServ–2]—

Clause 5, page 20, after line 38—

Inserted section 23ZE(1)—delete 'Senior Authorising Officer' and substitute:

Chief Executive

Amendment No 2 [HumanServ–2]—

Clause 5, page 20, after line 38—

Inserted section 23ZE(2)—delete '6' and substitute:

12

Amendment No 3 [HumanServ–2]—

Clause 5, page 20, after line 38—

After inserted section 23ZE(2) insert:

(3) A report under this section may be combined with the annual report of the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of this Act (in which case the Minister need not lay a copy of the report before both Houses of Parliament under subsection (2)).

The Department of Human Services has some annual reporting requirements already about their statutory functions, and that is a fairly common thing across government. We obviously support any accountability that means that we are publicly reporting on those matters. Our preference is that, because this is a function within the Department of Human Services, the reporting would take place through that annual report. We can make sure that there will be annual reporting requirements to take effect after the appropriate transition period.

Furthermore, I note that there is a provision in the honourable member's amendment which is a requirement for six days. My understanding is that the standard period is 12 sitting days, so it is just an additional administrative set of things that, rather than it happening as part of the normal functions of the reporting of the department, would mean that it would need to be done separately. Our preference is that this form part of DHS's other statutory reporting requirements.

The Hon. C. BONAROS: I will indicate for the record that we support the minister's amendments to the Hon. Clare Scriven's amendment.

The Hon. C.M. SCRIVEN: As mentioned, we are not too unhappy with the minister's amendments to the amendment, whilst noting that unamended I assume it would be a little bit stronger, but it is not a considerable difference.

The ACTING CHAIR (Hon. D.G.E. Hood): So you are not opposing the amendments to your amendment?

The Hon. C.M. SCRIVEN: We will still oppose the amendments because we think that our amendment is stronger, but if it is the will of the chamber that the amendments to the amendment be accepted, we of course still will support the amendment.

The ACTING CHAIR (Hon. D.G.E. Hood): Then I will need to clarify. The Hon. Ms Bonaros, you are supporting all of the minister's amendments to the amendment?

The Hon. C. BONAROS: Yes, I just want to clarify, though: I do not think it is a matter of not being as strong as what the deputy leader is proposing but rather one of consistency and reducing the duplication of having to report. So it is one of streamlining rather than weakening or watering down any of these provisions.

The ACTING CHAIR (Hon. D.G.E. Hood): I would like to hear at least one more contribution. That is 10 votes according to my mathematics, so we will need one more if we are to proceed. The Hon. Mr Darley, what is your position?

The Hon. J.A. DARLEY: I will be supporting the amendment.

The ACTING CHAIR (Hon. D.G.E. Hood): You will be supporting the three amendments to the deputy leader's amendment? That makes things a little clearer. In that case, I will put the question that the amendments standing in the name of the Minister for Human Services to amend the amendment of the deputy leader be agreed to.

Amendments to amendment carried; amendment as amended carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (16:11): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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