Wednesday, 22 March 2023

Bills

Disability and Social Services Regulation Amendment Bill 2023

Statement of compatibility

Ros SPENCE (Kalkallo – Minister for Prevention of Family Violence, Minister for Community Sport, Minister for Suburban Development) (10:36): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Disability and Social Services Regulation Amendment Bill 2023.

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Disability Amendment and Social Services Regulation Amendment Bill 2023 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

The main purpose of the Bill is to amend the Disability Act 2006 in relation to the Secretary’s functions, the sharing of information about persons with a disability and persons subject to restrictive practices and supervised treatment orders (STOs), residential services, use of restrictive practices, the compulsory treatment of persons with a disability, and other related matters.

The Bill also amends the Residential Tenancies Act 1997,in relation to Specialist Disability Accommodation (SDA) enrolled dwellings, the Disability Service Safeguards Act 2018 (DSS Act)in relation to registration requirements, and the Social Services Regulation Act 2021 in relation to the Worker and Carer Exclusion Scheme, powers of entry, and other minor and technical amendments.

Relevant human rights

The Bill engages the following human rights under the Charter: equality (section 8); protection against torture or cruel, inhuman or degrading treatment (section 10); freedom of movement (section 12); privacy and the home (section 13(a)); freedom of expression (section 15); protection of children (section 17(2)); property (section 20); liberty and security of the person (section 21); humane treatment when deprived of liberty (section 22); and fair hearing (section 24(1)).

The content of each right is summarised below. My analysis of the relevant clauses of the Bill follows.

Equality

Section 8(2) of the Charter provides that every person has the right to enjoy their human rights without discrimination. This aspect of the right prohibits discrimination against a person with respect to their enjoyment of other substantive human rights.

Section 8(3) of the Charter provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. This component of the right ensures that laws and policies are applied equally and do not have a discriminatory effect.

‘Discrimination’ under the Charter has the same meaning as in the Equal Opportunity Act 2010. Direct discrimination occurs when a person treats, or proposes to treat, a person with an attribute listed in section 6 of the Equal Opportunity Act 2010 unfavourably because of that attribute. Indirect discrimination occurs where a person imposes a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with a protected attribute, but only where that requirement, condition or practice is not reasonable.

Protection from torture and cruel, inhuman or degrading treatment

Sections 10(a)–(b) of the Charter provide that a person must not be subjected to torture or treated or punished in a cruel, inhuman or degrading way. The right is concerned with the physical and mental integrity of individuals, and their inherent dignity as human beings.

Cruel or inhuman treatment or punishment includes acts which do not constitute torture, but which nevertheless possess a minimum level of severity. Degrading treatment or punishment captures acts of an even less severe nature, but which inflict a level of humiliation or debasement upon a person. Whether conduct meets the necessary threshold will depend upon all the circumstances, including the duration and manner of the treatment, its physical or mental effects upon the affected person, and that person’s age, sex and state of health.

Section 10(c) of the Charter provides that a person has the right not to be subjected to medical experimentation or treatment without their full, free and informed consent. This right protects an individual’s personal autonomy and bodily integrity, and the freedom to choose whether or not to receive medical treatment.

Freedom of movement

Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely within Victoria, to enter and leave Victoria, and to choose where to live in Victoria. The right extends, generally, to movement without impediment throughout the State, and a right of access to places and services used by members of the public, subject to compliance with regulations legitimately made in the public interest. The right is directed at restrictions that fall short of physical detention (restrictions amounting to physical detention fall within the right to liberty, protected under section 21 of the Charter).

Privacy and the home

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. The scope of the privacy interest includes protection for one’s bodily integrity. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed. It will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of extending beyond what is reasonably necessary to achieve the statutory purpose.

Freedom of expression

Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds. However, section 15(3) provides that the right may be subject to lawful restrictions reasonably necessary to respect the rights and reputations of others, or for the protection of national security, public order, public health or public morality.

Protection of children

Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child. This right recognises the special vulnerability of children. The scope of the right is informed by article 3 of the United Nations Convention on the Rights of the Child, which requires that in all actions concerning children, the best interests of the child, shall be a primary consideration.

Property

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. The right will not be limited where the law (whether legislation or the common law) authorising the deprivation of property is clear and precise, accessible to the public, and does not operate arbitrarily.

Liberty and security of the person

Section 21 of the Charter provides that every person has the right to liberty and security, including the right not to be subject to arbitrary arrest or detention. This right is concerned with the physical detention of an individual, not mere restrictions on freedom of movement. What constitutes detention or deprivation of liberty will depend on all the facts of the case, including the type, duration, effects and manner of implementation of the measures concerned. A person’s liberty may legitimately be constrained only in circumstances where the relevant arrest or detention is lawful and not arbitrary.

Humane treatment when deprived of liberty

Section 22(1) of the Charter provides that all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person. The right recognises the particular vulnerability of persons in detention, and applies to persons detained both in the criminal justice system and non-punitive or protective forms of detention such as the compulsory detention of persons with a mental illness. The right reflects the principle that detained persons should not be subjected to hardship or constraint other than that which results from the deprivation of their liberty.

Fair hearing

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The term ‘civil proceeding’ in section 24(1) has been interpreted as encompassing proceedings that are determinative of private rights and interests in a broad sense, including some administrative proceedings.

Analysis of relevant clauses

Use of restrictive practices

The Bill amends a number of provisions in the Disability Act 2006 relating to the authorisation of, or prohibition upon, the use of ‘restrictive practices’, which is defined as ‘any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with a disability, an NDIS participant or a DSOA client’ (section 3, as amended by clause 4).

Most relevantly, clause 47 of the Bill replaces Parts 6B and 7 of the Disability Act 2006 with a new, consolidated Part 7, which sets out parameters for the use of restrictive practices in relation to, and protects the rights of, persons (other than those covered under Division 6 of Part 8) with a disability who receive disability services, are NDIS participants (including those subject to treatment plans in certain circumstances), or are Disability Support for Older Australians clients. Clauses 68–76 amend provisions in Division 6 of Part 8 of the Disability Act 2006. The purpose of Division 6 of Part 8 is to protect the rights of persons who may be subject to restrictive practices in the context of the implementation of treatment plans by disability service providers and registered NDIS providers (section 201A, as amended by clause 68).

The principal purpose of these amendments is to ensure that both disability service providers and registered NDIS providers must comply with similar rules and protections in relation to the use of restrictive practices.

Insofar as the amendments authorise the use of practices which may interfere with bodily integrity, constitute medical treatment without consent, and deprive persons of their freedom of movement or their liberty, they may engage the Charter rights to protection from torture and cruel, inhuman, or degrading treatment (section 10), freedom of movement (section 12), privacy (section 13(a)), liberty (section 21), and humane treatment when deprived of liberty (section 22). In addition, because restrictive practices may only be used in relation to persons with a disability (which is a protected attribute under the Equal Opportunity Act 2010), and may therefore be considered to treat those persons unfavourably because of that attribute, the Charter right to equality (section 8) may be engaged. However, for the reasons detailed below, it is my opinion that any limitation upon these rights is reasonable and justified in accordance with section 7(2) of the Charter.

Privacy and liberty

The restrictive practice amendments do not, in my view, limit the rights to privacy and liberty, because any interference with these rights will be lawful and non-arbitrary.

Any interference with a person’s Charter right to privacy (particularly, bodily integrity) and to liberty will be lawful as the relevant clauses are precise, accessible and appropriately circumscribed.

Furthermore, an authorised use of a restrictive practice is reasonably necessary to achieve important purposes, including to prevent a person from harming themselves or others, and is therefore not arbitrary. The Bill and the Disability Act 2006 contain many layers of oversight that ensure any interference with a person’s privacy or liberty is appropriately confined. For example, the Senior Practitioner (a clinician appointed pursuant to section 23 of the Disability Act 2006) and Authorised Program Officers are empowered to perform review and monitoring functions with respect to the use of restrictive practices (e.g., new sections 134–135, 137 and 146, inserted by clause 47, new section 201H inserted by clause 75, and existing section 27). New section 144 (inserted by clause 47) provides a right to apply to VCAT for review of certain regulated restrictive practice decisions. And it is an offence for a disability service provider or registered NDIS provider to use a regulated restrictive practice other than as authorised under the Disability Act 2006 (new section 149, inserted by clause 47, and section 201G, replaced by clause 74).

Protection against cruel, inhuman or degrading treatment and right to humane treatment

I do not consider that the restrictive practice amendments limit the Charter protection against torture or cruel, inhuman or degrading treatment, nor the right to humane treatment when deprived of liberty. Rather, many of the amendments seek to promote the humane treatment and dignity of persons who may be subject to restrictive practices. For instance, under new section 136(1)(b) (inserted by clause 47), an Authorised Program Officer may only authorise the use and form of a proposed regulated restrictive practice which is the least restrictive option in the circumstances and which is not applied for longer than the period of time that is necessary to prevent the person from causing physical harm. These parameters are consistent with the guiding principles set out in section 5 of the Disability Act 2006 and with the United Nations Convention on the Rights of Persons with Disabilities.

Freedom of movement and equality

The restrictive practice amendments authorise limitations on freedom of movement and, to the extent the amendments constitute discrimination on the basis of disability, the right to equality. However, in my view, any such limitation is reasonable and justified.

As discussed above, restrictive practices serve an important purpose, and the Bill includes a number of safeguards to ensure that the practices are tailored to individual circumstances, including that they are used in a way that least restricts a person’s rights. While I acknowledge that the use of restrictive practices represents a significant interference with a person’s freedom of movement, the harm-prevention objective of these practices promotes the Charter right to life (section 9) of the person who is subject to the practice, and of other persons who may be at risk of harm.

Restrictive practice protections do not apply to security conditions applying to all residents of a residential treatment facility

Clause 68(5) of the Bill replaces section 201A(4) and inserts section 201A(5) into the Disability Act 2006. New section 201A(5) relevantly provides that a disability service provider is not required to comply with sections 201B to 201E (as amended by the Bill) in applying a security condition if the Secretary has approved the security condition under new section 159A (inserted by clause 51). Under new section 159A, a security condition that is a restrictive practice and which will apply to all of the residents of the residential treatment facility must be approved by the Secretary. Approval may be granted if the purpose of the security condition is for the supervision of residents or the security of the residential treatment facility. The Secretary must consult the Senior Practitioner before making a decision under new section 159A. The exemption in new section 201A(5) will only be engaged to the extent that a particular security condition falls within the definition of a ‘restrictive practice’ (discussed above) to which the provisions in Division 6 of Part 8 would otherwise apply.

Clause 68(5) may engage the Charter rights to protection from cruel, inhuman, or degrading treatment (section 10), privacy (section 13(a)), and humane treatment when deprived of liberty (section 22), because it could result in the application of restrictive practices on all residents of a residential treatment facility, without the protections afforded in sections 201B to 201E (e.g., an assessment of whether the use and form of a regulated restrictive practice is the option which is the least restrictive of the person as is possible in the circumstances – section 201D(b)).

However, for the reasons set out below, I consider that the rights to privacy and liberty, and the protection against cruel, inhuman or degrading treatment, are not limited. To the extent that freedom of movement and the right to humane treatment may be limited, any such limit is reasonable and justified in accordance with section 7(2) of the Charter.

Privacy and liberty

Clause 68(5) does not, in my view, limit the rights to privacy or liberty, because any interference with these rights will be lawful and non-arbitrary.

Any interference with a person’s Charter right to privacy (particularly, bodily integrity) and to liberty will be lawful, as the amendment to section 201A(5) of the Disability Act 2006 is precise, accessible and appropriately circumscribed.

Furthermore, the non-application of certain provisions in Division 6 of Part 8 with respect to security conditions is not arbitrary because it is reasonably necessary to achieve the important purpose of safeguarding the security of a residential treatment facility and its residents (who are required to reside in the facility in accordance with one of the orders listed in section 152(2) of the Disability Act 2006, as amended). In particular, it is not feasible to conduct an individualised assessment of certain security conditions (e.g., a perimeter fence) which apply to a facility as a whole. However, the role of the Secretary (in consultation with the Senior Practitioner) in new section 159A (inserted by clause 51) ensures that the exemption from sections 201B to 201E is appropriately confined to security conditions which serve the purpose outlined above. Last, the exemption does not apply to sections 201F (as amended by clause 72), which relates to reporting requirements for the use of regulated restrictive practices, or new section 201H (inserted by clause 75), which provides that the Senior Practitioner may issue guidelines and give directions in relation to restrictive practices.

Section 152 of the Disability Act 2006 (as amended) further constrains any impact upon a person’s rights to privacy and liberty. In making a decision to admit a person to a residential treatment facility, the Secretary must be satisfied that the criteria in section 152(1) are met, including that all less restrictive options have been tried or considered and are not suitable. This assessment would include consideration of any security conditions (that are also restrictive practices) applicable to the relevant residential treatment facility. Moreover, under new section 152(5) (inserted by clause 111), the Secretary must not allow a person to continue to reside at a residential treatment facility if the Secretary is not satisfied the conditions in subsection (1) continue to be met. This ensures that any new security conditions (that are also restrictive practices) which are made in respect of a residential treatment facility after a person is admitted will be relevant to the person’s continued ability to reside there.

Protection against cruel, inhuman or degrading treatment

I do not consider that clause 68(5) limits the Charter protection against cruel, inhuman or degrading treatment as the exemption in amended section 201A(5) will only be engaged in circumstances where security conditions are imposed for the purposes of security of a residential treatment facility or the supervision of its residents (not to impose harm or humiliation upon residents) and are approved by the Secretary following consultation with the Senior Practitioner. Therefore, these conditions would not constitute cruel, inhuman or degrading treatment.

Freedom of movement and right to humane treatment

Insofar as clause 68(5) may result in the imposition of security conditions which are also restrictive practices upon all residents in a residential treatment facility, without regard to the individual circumstances of those residents (e.g., whether a less restrictive option is available), it may be considered to limit residents’ freedom of movement and right to humane treatment when deprived of liberty. In my opinion, however, any such limit is reasonable and justified in accordance with section 7(2) of the Charter.

New section 201A(5) of the Disability Act 2006 serves important purposes, including promoting the security of residential treatment facilities. This supports the right to life of residents, protected under section 9 of the Charter. I do not consider there are any less restrictive means reasonably available to achieve these purposes, as a security condition genuinely imposed for the security of an entire facility (e.g., a perimeter fence) cannot be subject to individualised assessment and modification. In addition, as discussed above, the scope of the exemption from sections 201B to 201E is reasonably tailored to the objectives, and the oversight role of the Secretary (in consultation with the Senior Practitioner) serves an important rights-protective function.

Use and disclosure of information

In 2019, most of Victoria’s quality and safeguarding functions for services within the scope of the Disability Act 2006 were transitioned to the National Disability Insurance Scheme Quality and Safeguards Commission. The Bill makes a number of further amendments to the information sharing regime in the Disability Act 2006 to ensure consistency in, and the appropriateness of, information sharing relating to disability services and use of restrictive practices, and to bring the regime into line with other legislation. The amendments are designed, amongst other things, to facilitate the provision of collaborative supports to complex clients and to support the ability of regulatory agencies to exercise their powers to reduce risks to persons with a disability.

Most relevantly, clause 103 repeals subsections 39(2)–(9) of the Disability Act 2006, which regulate the disclosure, use and transfer of information relating to the provision of disability services to a person under the Act. In place of the repealed provisions, clause 105 of the Bill inserts Part 8A into the Disability Act 2006, which sets out a new regime for the use and disclosure of ‘protected information’ (defined in new section 202AA). Part 8A will apply to any information collected before the date on which the Bill comes into operation (new section 261, inserted by clause 107).

In addition, clause 26 of the Bill, which amends sections 49(1) and 49(2), and replaces section 49(3) of the Disability Act 2006, empowers the Secretary, in making a decision on a request for access to disability services, to require the person who made the request or the person in respect of whom the request was made to provide more information, or to require the person in respect of whom the request was made to undergo a formal assessment. Similarly, new section 50 (inserted by clause 27 of the Bill) empowers the Secretary, in making a decision whether or not a person has a disability, to request any relevant information (including personal information and health information) from any person or body.

Some of these amendments may engage the Charter rights to privacy (section 13(a)) and freedom of expression (section 15). However, for the reasons set out below, I do not consider there to be any limitation on these rights.

Privacy

A number of sections inserted into the Disability Act 2006 by clause 105 authorise the disclosure of protected information to certain persons (e.g., new section 202AB(2)) in specified circumstances (e.g., new section 202AB(3)). New section 49(3)(a), inserted by clause 26, provides that the Secretary may require a person who requests disability services, or the person in respect of whom the request was made, to provide more information. New section 50(4), inserted by clause 27, provides that a person or body that receives a request for information from the Secretary under subsection (2) is authorised to give the information to the Secretary. To the extent that information captured by clauses 26, 27 and 105 may include personal information (e.g., of persons receiving services under the Disability Act 2006), these clauses authorise interferences with the Charter right to privacy. However, the right to privacy is not limited because any such interference will be lawful (the authorising provisions are precise and accessible) and non-arbitrary.

In particular, disclosures permitted under new Part 8A are reasonably necessary to achieve important purposes, including developing or maintaining and improving information systems under section 39 of the Disability Act 2006 (new section 202AB(3)(a)(i)), or lessening or preventing a serious threat to a person’s life, health, safety or wellbeing (new section 202AB(3)(e)(i)). Similarly, disclosure of relevant information to the Secretary under new sections 49(3) or 50(4) (inserted by clauses 26 and 27, respectively) is necessary to enable the Secretary to make a decision regarding whether a person should have access to disability services (in the case of section 49) or whether a person has a disability for purposes of accessing disability services (in the case of section 50), and to minimise the number of assessments a person must undergo in order for these decisions to be made.

I am satisfied there are ample safeguards to ensure that any use or disclosure of a person’s personal information pursuant to clauses 26, 27 or 105 will be confined to what is reasonably necessary to achieve these important purposes. For example, disclosure to many of the persons listed in new section 202AB(2) (inserted by clause 105) is expressly qualified by the phrase ‘to the extent it is necessary’ (or similar). Furthermore, new section 50(3) (inserted by clause 27) requires the Secretary to obtain consent from one of three relevant persons before requesting personal information or health information about a person under subsection (2).

In addition, to the extent disclosure is permitted to certain persons with protective and oversight functions under the Disability Act 2006, including the Senior Practitioner (new section 202AB(4)(a)) and the Public Advocate (new section 202AB(4)(c)), the amendments support the human rights of persons receiving disability services under the Act.

Freedom of expression

Clause 105 inserts a number of new sections (e.g., new section 202AB) which have the effect of prohibiting ‘relevant persons’ (as defined in new section 202AA) from disclosing protected information except where the disclosure is made in the performance of a function or exercise of a power, or is required or permitted, under the Disability Act 2006 or another Act.

While this prohibition interferes with freedom of expression under section 15 of the Charter, it does not limit that right because it constitutes a lawful restriction reasonably necessary to respect the rights (e.g., the right to privacy) of persons to whom the information relates (section 15(3)(a) of the Charter).

Community visitors

Clause 36 inserts new section 129(1C) into the Disability Act 2006, which provides that a community visitor may visit any premises approved by the Minister under new section 129AA (inserted by clause 35) with or without any previous notice at the times and periods that the community visitor thinks fit. Under new section 129(5A) (inserted by clause 36), the Minister may also direct a community visitor to visit a Minister approved premises at the times the Minister directs. Clause 38 inserts new section 131B which provides that any resident or a person acting on their behalf of a Minister approved premises may request that the disability service provider or the registered NDIS provider arrange for the resident to be seen by a community visitor.

New section 30B (inserted by clause 24) lists the functions of a community visitor when visiting Minister approved premises, including to inquire into: the appropriateness and standard of the premises for the accommodation of Minister approved premises residents; any case of suspected abuse or neglect of a Minister approved premises resident; and the use of restrictive practices and compulsory treatment. New section 130(4) (inserted by clause 37) sets out the powers of a community visitor when visiting a Minister approved premises, including to: inspect any part of the premises where the person with a disability, NDIS participant or Disability Support for Older Australians client is living; see those persons in order to make enquiries as to the provision of services to those persons; and inspect any document relating to any such person that is not a medical record and any documents required to be kept under the Residential Tenancies Act 1997 and other specified legislation. Finally, the community visitor may also inspect any medical record relating to persons with a disability, NDIS participants, or Disability Support for Older Australians clients with their consent or the consent of their guardian.

In addition, new section 3B (inserted by clause 5) provides that a registered NDIS provider that is providing supervised treatment to persons in accommodation approved by the Senior Practitioner under new section 187 (inserted by clause 56) is taken to be a disability service provider, the accommodation is taken to be a residential service, and the person receiving supervised treatment is taken to be a resident, for purposes of Division 7 of Part 6 of the Disability Act 2006. As a result, community visitors are newly empowered to visit these types of accommodation, and to perform the functions and exercise the powers set out in section 130 of the Disability Act 2006 (as amended).

Clauses 5, 24, 36, 37 and 38 may engage the right of persons who reside in Minister approved premises or a deemed residential service not to have their privacy or home unlawfully or arbitrarily interfered with, under section 13(a) of the Charter. However, I do not consider that the right is limited, because any such interference will be lawful (the new community visitor provisions are accessible and precise) and non-arbitrary.

More specifically, the ability of community visitors to attend a Minister approved premises or a deemed residential service without notice and at times the visitor thinks fit, and to conduct the functions set out in new section 30B and existing section 130 of the Disability Act 2006, is consistent with the functions and powers of community visitors in relation to other types of supported accommodation for persons living with a disability, and is reasonably necessary to achieve the important protective and oversight functions served by community visitors. A requirement to provide advance notice of a visit may deprive a community visitor of the ability to observe the true conditions of the relevant accommodation or premises. In this way, clauses 5, 24, 36, 37 and 38 support the Charter rights of residents who may be subject to restrictive practices or compulsory treatment (e.g., the right to humane treatment when deprived of liberty).

In addition, a number of safeguards are in place to ensure that any interference with a person’s privacy is appropriately confined. For instance, new section 130(4) (inserted by clause 37) and existing section 130(1)(e) provide that a community visitor may only inspect medical records with the consent of the person to whom they relate (or that person’s guardian). Clause 39 inserts new section 132(2A) which requires a disability service provider or registered NDIS provider, who is present when a community visitor visits a Minister approved premises, to keep a record of the visit, or face a penalty of 5 penalty units. Clause 25 amends section 34(1) of the Disability Act 2006 to require community visitors who visit Minister approved premises in a particular region to submit a twice-yearly report to the Community Visitors Board on visits conducted in that region. These amendments ensure that most community visits are recorded and reported on, providing a further level of oversight for the privacy of residents.

Reporting and notification requirements

The Bill makes a number of amendments to the Disability Act 2006 (e.g., clauses 30, 47 and 60) and to the Residential Tenancies Act 1997 (e.g., clauses 230–232) in relation to mandatory reporting and notification requirements. To the extent that these requirements might involve the sharing of personal information of persons with disabilities, they engage the right to privacy. However, the right is not limited because any interference with privacy will be lawful (the provisions are precise and accessible) and non-arbitrary.

Specifically, each of the above-noted amendments authorise reporting or notification where reasonably necessary to achieve an important purpose. For example, clause 60 inserts new sections 194A and 194B into the Disability Act 2006, which include requirements to notify the Senior Practitioner of non-compliance with a condition of an STO by a disability service provider, registered NDIS provider, or the person who is subject to the STO. These requirements are reasonably necessary to achieve the important purpose of facilitating the exercise of the Senior Practitioner’s statutory oversight functions (e.g., under sections 24 and 195 of the Disability Act 2006).

In addition, other provisions of the amended Acts ensure that the scope of any personal information disclosed will be confined to the relevant purpose. For instance, clause 30 inserts new section 58(1)(k) into the Disability Act 2006, which requires a disability service provider providing residential services to report any suspected breach of a direction or an order requiring a person with a disability to live at the residential service to the responsible authority (defined in new section 58(5)). Existing section 58(4) further constrains this duty, however, by requiring a disability service provider to have regard to the need to ensure there is a reasonable balance between the rights of residents and the safety of all the residents in the residential service. Moreover, disability service providers who are public authorities within the meaning of the Charter are also subject to the obligation in section 38 to act compatibly with human rights.

Similarly, in relation to amendments to the Residential Tenancies Act 1997 inserted by clauses 230–231 of the Bill, which require SDA providers to notify the Director of Consumer Affairs Victoria of certain events (e.g., details of a notice of temporary relocation or notice to vacate), section 498M of the Residential Tenancies Act 1997 (as amended by clause 172) imposes duties on SDA providers to take reasonable measures to ensure SDA residents are treated with due regard to their entitlement to privacy and not to unreasonably interfere with an SDA resident’s right to privacy.

Amendments relating to the Disability Services Board

The Bill amends the Disability Act 2006 to remove references to the Disability Services Board, an entity that is no longer required due to the transition to the NDIS of disability service providers and the resulting significant reduction in the number of people accessing State-funded disability services and the reduction in the functions of the Disability Services Commissioner that the Board was established to support. Specifically, clause 17 repeals section 16(1)(i),(j) and (m)(i) of the Disability Act 2006, removing the Disability Services Commissioner’s functions in respect of the Board, including the Commissioner’s ability to seek advice from the Board and to initiate inquiries into matters referred to it by the Board. Clause 18 repeals Division 4 of Part 3 of the Disability Act 2006, which established the Board.

The abolition of the Board could engage the right to equality under section 8(3) of the Charter, for persons living with disability. This is because the State has a positive duty to protect persons from discrimination on the basis of disability, and the removal of a body that was designed to support the oversight of the Victorian disability services sector, including relevant complaints processes, and to represent the interests of, and advocate for, adults and children with a disability, might result in an erosion of protections against disability-based discrimination.

However, I consider that the removal of the Board would not in fact limit the right to equality under section 8(3) of the Charter, as the amendments do not propose to treat persons with a disability unfavourably, and are not likely to have the effect of unreasonably disadvantaging those persons, so as to constitute direct or indirect discrimination. Specifically, there will be no reduction in safeguards for persons living with disability who continue to receive State-funded disability services, as the Disability Services Commissioner remains able to oversee the provision of disability services in Victoria, to resolve complaints, and to protect the rights of people with disability, including with respect to discrimination.

Power of disability service provider to enter a resident’s room without notice

Clause 32 of the Bill inserts section 60(2)(ca) into Division 1 of Part 5 of the Disability Act 2006, which provides an additional reason for a disability service provider to enter the room of a resident of a residential service without notice: namely, when the disability service provider suspects on reasonable grounds that there has been a breach of a condition of an order that the resident is subject to that requires them to reside at the residential service.

While most residential services and accommodation that were previously covered by the Disability Act 2006 have now transitioned to the NDIS, specialist forensic disability accommodation, residential treatment facilities and some short-term accommodation where support or transitional accommodation is provided are still within the scope of the Disability Act 2006. Properties approved for the provision of supervised treatment under new section 187 (inserted by clause 56) will also fall under the application of the new section 60(2)(ca). Residents of specialist forensic disability accommodation will generally be subject to civil or criminal orders, such as STOs or bail conditions, requiring them to reside at that residential service.

Allowing disability service providers to enter a resident’s room without notice engages the right to privacy under section 13(a) of the Charter, and in the case of residents who are under criminal orders (such as a residential treatment order or custodial supervision order) or STOs that compel them to remain in the residential service, the right to humane treatment when deprived of liberty under section 22 of the Charter. For the reasons set out below, I am of the view that neither right is limited by clause 32 of the Bill.

Privacy

Section 13(a) of the Charter stipulates that a person has the right not to have their privacy and home (amongst other things) unlawfully or arbitrarily interfered with. Entry into a resident’s room without notice would engage both of these aspects of the privacy right, because ‘privacy’ includes a person’s physical and psychological integrity, and a resident’s room within a residential service is clearly encompassed by the concept of ‘home’.

However, the right to privacy will only be limited if the interference is ‘unlawful’ or ‘arbitrary’. Entry to a resident’s room without notice would occur pursuant to new section 60(2)(ca) of the Disability Act 2006, which is a precise and accessible provision that includes an appropriately stringent ‘reasonable grounds’ threshold. I consider this to be a reasonable and proportionate measure to achieve the important purpose of ensuring that conditions of the relevant orders are being complied with, which in turn fulfils the purpose of maintaining the safety and welfare of staff and residents in residential services. I am therefore satisfied that entry into a resident’s room without notice pursuant to the new provision would not be unlawful or arbitrary.

Accordingly, I am of the view that the right to privacy is not limited by clause 32 of the Bill.

Humane treatment when deprived of liberty

An order compelling a person to reside in a residential service (such as an STO), particularly one that compels them to receive compulsory treatment, would likely be considered to constitute a deprivation of liberty that triggers a requirement for humane treatment and respect for inherent human dignity under section 22 of the Charter. However, I am of the view that entry into a person’s room without notice on suspicion (based on reasonable grounds) that the person has breached a condition of the order reflects an interference with rights that could reasonably be expected to result from the deprivation of liberty in this context. Further, the measure is proportionate to the important purpose of enforcing the conditions of the relevant order to which the person is subject, and therefore ensuring the safety of staff and residents in residential services.

I do not therefore consider the right to humane treatment while deprived of liberty to be limited by clause 32 of the Bill.

Termination of residency

Clause 33 of the Bill inserts new section 61A into the Disability Act 2006 which sets out the circumstances in which a person’s residency in a residential service may be terminated, namely, where: the person’s residency period has expired and has not been extended; the person is no longer subject to a direction or civil or criminal order requiring them to reside at the residential service and suitable alternative premises are available for them to move to; the person has moved to another premises; the person has been directed or ordered to move to an alternative residence for at least three months and there is no agreement between the person and the Secretary for the residency of the person to continue in the residential service; the disability service provider gives the person written notice that the residency of the person will end on a specified date; or the person and the disability service provider agree, in writing, that the residency will end.

The termination of a person’s residency in a residential service engages the Charter rights to equality (section 8), to not have one’s home unlawfully or arbitrarily interfered with (section 13(a)), and to property (section 20).

Equality

Clause 33 engages the right to equality under section 8(3) of the Charter, insofar as new section 61A of the Disability Act 2006 may adversely affect persons living with a disability whose residency in a residential service is terminated.

However, I am of the view that the termination of residency provision does not constitute direct discrimination as it does not permit unfavourable treatment because of a disability; rather, it may result in unfavourable treatment (i.e., termination of residency) because of one of the above-specified reasons, such as the expiration of the residency agreement or abandonment by the resident of the residential service. I am also of the view that the provision does not constitute indirect discrimination because it does not impose an unreasonable requirement, condition or practice that would disadvantage a person with a disability. Termination of residency can only occur for one of the legitimate reasons set out in new section 61A and is a proportionate measure to ensure residents do not refuse to move after the expiration of the period of residency specified in their residential statement or once they are no longer subject to an applicable direction or order. Clause 33 also ensures that residential service resources are being properly utilised and that persons who require them are able to be given access in a timely manner. In addition, the requirement in new section 61A(2) for a disability service provider to comply with any guidelines issued by the Secretary with regard to termination of residency, and to notify the Secretary at least 30 days before terminating the residency of a person under subsection (1)(d) or (e), serve an important protective function for the rights of residential service residents..

Accordingly, I am of the view that the right to equality would not in fact be limited as clause 33 does not directly or indirectly discriminate against persons on the basis of disability.

Privacy and the home

As discussed above, a person’s room or accommodation in a residential service would fall within the concept of ‘home’ under section 13(a) of the Charter. While termination of a person’s residency in a residential service would constitute an interference with this right, I am satisfied that it is not unlawful or arbitrary and would therefore fall within the internal qualification contained in section 13(a). The interference with the home would occur pursuant to new section 61A of the Disability Act 2006 for one of the reasons outlined therein; this is a provision which is precise and accessible, and is a reasonable and proportionate measure to achieve the aim of ensuring that residential service resources are properly used, allocated and accessible to persons who need them.

Accordingly, I am satisfied that the right to the home is not limited by clause 33 of the Bill.

Property

Section 59 of the Disability Act 2006 sets out various duties of residents analogous to those that would arise in a residential tenancy, such as an obligation to pay specified charges and to contribute to the cost of reparation of any damage. Therefore, to the extent these obligations might be considered to give rise to a property interest, such that termination of residency would deprive a resident of that interest, the Charter right to property (section 20) may be engaged.

I am satisfied, however, that a termination of residency pursuant to new section 61A of the Disability Act 2006 (which is precise and accessible)would not constitute an unlawful deprivation of property. The right to property under section 20 of the Charter is therefore not limited by clause 33.

Non-application of Residential Tenancies Act 1997 for accommodation approved by Senior Practitioner

Clause 56 of the Bill replaces sections 185 to 191 of the Disability Act 2006. New section 187(5) provides that the Residential Tenancies Act 1997 does not applyin respect of accommodation that has been approved by the Senior Practitioner as being suitable for persons to reside in for the purposes of receiving supervised treatment by a disability service provider or a registered NDIS provider. Clause 237 makes a corresponding change to section 3(1) of the Residential Tenancies Act 1997.

Given persons with a disability who receive supervised treatment at accommodation approved for this purpose will not be able to avail themselves of the protections provided by the Residential Tenancies Act 1997, the Charter rights to equality (section 8(3)) and to the home (section 13(a)) are engaged, but for the reasons set out below, are not limited.

Equality

I am satisfied that clauses 56 and 237 do not limit the right to equality as they do not directly or indirectly discriminate against persons with a disability. The amended provisions do not treat persons with a disability unfavourably because of their disability, but rather excludes certain accommodation at which they might be receiving supervised treatment from the application of the Residential Tenancies Act 1997. Therefore, clauses 56 and 237 do not result in direct discrimination. Further, the exclusion of the application of the Residential Tenancies Act 1997 is not an unreasonable imposition that would disadvantage persons with a disability; it is a reasonable and proportionate measure to ensure that accommodation approved for supervised treatment is subject to legislation (namely, Division 1 of Part 5 of the Disability Act 2006)that is better tailored to the distinct needs of such accommodation. The definition of ‘residential service’ in section 3(1) of the Disability Act 2006 (as amended by clause 4(3)) includes accommodation provided by disability service providers, and new section 3B (inserted by clause 5) will include accommodation provided by registered NDIS providers, that is approved by the Senior Practitioner for the provision of supervised treatment under new section 187(1), such that Division 1 of Part 5 will apply to provide alternative protections for residents of approved accommodation.

Home

Clauses 56 and 237 may engage the right to the home in section 13(a) of the Charter because the disapplication of the Residential Tenancies Act 1997 to the relevant supervised treatment accommodation removes various protections under that Act (e.g., the duty of a rental provider, in section 67, to ensure a tenant has quiet enjoyment of the premises).

However, any interference with a person’s home is effected by a provision which is accessible and precise, and is proportionate to the purpose of providing a tailored framework (namely, Division 1 of Part 5 of the Disability Act 2006) for accommodation approved for supervised treatment that protects the rights of residents. As such, I am satisfied that any interference with the right to the home would not be arbitrary or unlawful. The right is therefore not limited.

Supervised treatment orders

Clause 56 of the Bill replaces sections 185 to 191 of the Disability Act 2006, with new sections 191A to 191C. New section 191 sets out the process pursuant to which an Authorised Program Officer for a primary service provider may apply to VCAT for an STO in respect of a person who: has an intellectual disability; is living in a type of accommodation listed in section 191(1)(b); has an approved treatment plan; and meets the criteria in new section 193(1A) (inserted by clause 58).

An STO authorises detention and treatment of a person without their consent. Insofar as that treatment interferes with the person’s bodily integrity and limits their physical liberty, clauses 56 and 58 may engage the Charter rights to protection from medical treatment without consent (section 10(c)), freedom of movement (section 12), privacy (section 13(a)), liberty (section 21), and humane treatment when deprived of liberty (section 22). In addition, since clauses 56 and 58 may be considered to discriminate against persons on the basis of disability, they may engage the Charter right to equality (section 8).

However, for the reasons detailed below, it is my opinion that there is no limit on the Charter rights to privacy and liberty, and that any limitation upon other Charter rights is reasonable and justified in accordance with section 7(2).

Privacy and liberty

Any interference with a person’s privacy or liberty resulting from an STO is not, in my opinion, a limit upon these Charter rights, because it will be lawful (the amendments to the Disability Act 2006 made by clauses 56 and 58 are precise and accessible) and non-arbitrary.

In particular, VCAT may only make an STO if satisfied that all of the conditions in new section 193(1A) of the Disability Act 2006 (inserted by clause 58) are met. Each of the conditions is premised on the existence of a significant risk of serious harm to another person. Therefore, STOs may only be made where reasonably necessary to achieve the purpose of reducing the risk of, or preventing serious harm to another person. This supports the right to life, protected under section 9 of the Charter.

Indeed, I consider that clauses 56 and 58 strengthen protections for the human rights of persons with respect to whom an STO application may be made. For instance, new section 191A(1)(b) requires an application for an STO to include any risk assessment reviewed by the Senior Practitioner; this was not previously required. Furthermore, new section 191C(2) provides that a person in respect of whom an STO application is made is a party to the VCAT proceeding (enhancing their right to a fair hearing, protected in section 24(1) of the Charter), and new section 191C(3) provides that the Senior Practitioner must (on application) be joined to the proceeding.

Equality, protection from medical treatment without consent, freedom of movement, and humane treatment when deprived of liberty

To the extent clauses 56 and 58 limit the Charter rights to equality, protection from medical treatment without consent, freedom of movement, or humane treatment when deprived of liberty, any such limit is, for the following reasons, reasonable and justified under section 7(2) of the Charter.

The availability of an STO serves pressing and substantial objectives, including to reduce the risk of, or prevent serious harm to other persons (as discussed above) and to provide services in accordance with a treatment plan which will be of benefit to the person subject to the STO (new section 193(1A)(c) of the Disability Act 2006).

I acknowledge that an STO may constitute a profound interference with the dignity and bodily integrity of the person to whom it relates. However, as reflected in the criteria in new section 193(1A) of the Disability Act 2006, an STO is only available where there is a significant risk of serious harm to another person that cannot be substantially reduced through less restrictive means. I am satisfied that the protections in new sections 191, 191A to 191C, and 193(1A), including the protective role of the Senior Practitioner, ensure the least-restrictive interference with the Charter rights of persons who may be subject to an STO.

Fair Hearing

Clause 58 inserts new section 193(2B), which provides that VCAT, in deciding whether to make an STO, may consider any relevant information including the treatment plan, risk assessment, assessment report, and any relevant information obtained in an earlier proceeding relating to the person in respect of whom the STO is proposed to be made. This provision is relevant to the right to fair hearing, which, depending upon the circumstances, generally requires a respondent to a proceeding to have the particulars of an application against them disclosed.

This provision is intended to clarify the existing powers and processes of VCAT. For example, section 98 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) provides that VCAT is not bound by the rules of evidence and may admit into evidence the contents of any document, including any material put before VCAT at a previous proceeding, if VCAT considers it desirable to do so.

Section 98(1)(a) of the VCAT Act further provides that VCAT is bound by the rules of natural justice, while section 97 provides that VCAT must act fairly and according to the substantial merits of the case in all proceedings. Additionally, VCAT is obliged under the Charter to give effect to relevant Charter rights in conducting its hearings, including the right to a fair hearing. Accordingly, any material that would be considered by VCAT in an STO application (assuming such material is not otherwise privileged) would need to be disclosed to the parties to the proceeding. This would include the person to whom the proposed STO would apply, and they would be given the opportunity to consider and respond to that material.

In my view these amendments would strengthen human rights protections for persons in respect of whom an STO application may be made, as they would help ensure that the STO application process is transparent, that all parties have an opportunity to consider and respond to all relevant information, and that VCAT has the best available information before it upon which to determine an STO application.

Apprehension of person subject to supervised treatment order or detained in residential treatment facility who is absent without leave

Clause 66 of the Bill replaces section 201(1) and amends section 201(2) of the Disability Act 2006. The amendments empower a police officer, the person in charge of the disability service provider providing disability services, the person in charge of the registered NDIS provider providing daily independent living supports at the accommodation, or an authorised person who is employed or engaged by, or is providing disability services or services under the NDIS at the accommodation for or on behalf of, the disability service provider or registered NDIS provider, to apprehend a person who is subject to an STO who is absent without approval from the accommodation that the person is required to reside in. The apprehension may only be made for the purpose of returning the person to their accommodation. Similarly, clause 121 of the Bill replaces section 160(b) of the Disability Act 2006 to expand the list of persons who are empowered to apprehend a resident detained in a residential treatment facility who is absent without leave for the purpose of returning the resident to the facility.

These clauses authorise an interference with a person’s Charter rights to freedom of movement (section 12), privacy (section 13(a)), and liberty (section 21).

However, in my opinion, the rights to privacy and liberty are not limited because any interference authorised by sections 201 or 160 (as amended) will be lawful (as those provisions are clear and accessible) and non-arbitrary. In particular, the power to apprehend a person who is absent without leave is reasonably necessary to achieve the purposes of enforcing the order pursuant to which the person is required to reside in the accommodation or residential treatment facility, and returning the person to the relevant accommodation or facility. Furthermore, the lists of persons in sections 201 and 160 who are authorised to apprehend a person who is absent without leave are strictly confined.

To the extent the clauses authorise limits on a person’s freedom of movement, any such limitation is in my view reasonable and justified, with regard to the important purpose of ensuring the relevant orders are upheld. I do not consider there is any less restrictive means of achieving this objective. The Disability Act 2006 provides a mechanism for some persons detained in accommodation under the Act to obtain an authorised leave of absence (e.g., ss 156–157, as amended by clauses 117–118).

Admission to residential treatment facility

Clause 111 of the Bill amends section 152 of the Disability Act 2006, which sets out the process for a person with an intellectual disability to be admitted to a residential treatment facility. Clauses 112 and 113 of the Bill insert new sections 152A and 152B (respectively) into the Disability Act 2006. New section 152A requires the Secretary or forensic disability service provider to give a person admitted to a residential treatment facility relevant written information to the person, including about the services to be provided to that person, the conditions that will apply to their admission under any order or direction under the Act, a copy of their treatment plan, any security conditions that will apply at the residential treatment facility, and their legal rights and entitlements, including for review of their treatment plan. New section 152B empowers the Secretary to extend a person’s admission to a residential treatment facility for further periods (not exceeding 12 months) if certain conditions are met.

Clauses 111 and 113 authorise an interference with a person’s Charter rights to freedom of movement (section 12), privacy (section 13(a)), and liberty (section 21). In addition, to the extent that these clauses authorise interference with the rights of persons who have a disability, they engage the Charter right to equality (section 8). For the reasons set out below, however, the rights to privacy and liberty are not limited, and any limitation on freedom of movement or equality is reasonable and justified.

Privacy and liberty

In my opinion, the rights to privacy and liberty are not limited because any interference authorised by sections 152 or 152B (as amended), provisions that are precise and accessible, will be lawful and non-arbitrary.

A person may only be admitted to a residential treatment facility where the criteria in section 152(1) (as amended) are satisfied, including that: the person presents a serious risk of violence to another person; all less restrictive options have been tried or considered and are not suitable; the treatment is suitable for the person having regard to the person’s willingness to engage in and benefit from the treatment; the person is able to engage in the therapeutic environment at the residential treatment facility; and admission of the person to the treatment facility is appropriate having regard to the level of vulnerability of the person, any risks the person presents to other residents of the treatment facility and the compatibility of the person with the other residents of the residential treatment facility. These criteria ensure that a person’s rights to privacy and liberty will only be interfered with to the extent reasonably necessary to achieve important purposes, including protecting others from harm and ensuring there is therapeutic benefit for the person in that environment.

In addition, I consider that clause 111 strengthens the rights protections for a person who may be admitted to a residential treatment facility. For example, new subsection 152(1A) requires the person to undergo a clinical assessment before a decision to admit is made, while new subsection 152(1B) requires the Secretary to consult with, and to consider the advice (if any) of, the Senior Practitioner in relation to the suitability of the treatment to be provided to the person at the residential treatment facility. And new subsection 152(5) provides that, subject to new subsections 152(6)–(7), if the Secretary is not satisfied the conditions in section 152(1) continue to be met or that the person is no longer subject to an order listed in section 152(2), the Secretary must not allow a person to continue to reside at a residential treatment facility.

Freedom of movement and equality

To the extent clauses 111 and 113 of the Bill limit the Charter rights to freedom of movement and equality, I consider such limitations to be reasonable and justified in accordance with section 7(2) of the Charter.

The power of the Secretary to admit a person to a residential treatment facility, or to extend their admission, serves important purposes, including to protect other persons from a serious risk of violence, which supports the Charter right to life (section 9). In addition, the amendments seek to protect the dignity and autonomy of persons who may be admitted to a residential treatment facility, including by seeking to ensure that those persons are willing to both engage in their treatment (amended section 152(1)(d)) and to engage with the therapeutic environment at the residential treatment facility (new section 152(1)(e)), and by requiring those persons to be provided with information about their treatment and their rights (new section 152A).

I acknowledge that the decision to admit a person to a residential treatment facility reflects a potentially significant interference with their freedom of movement and right to equality. As discussed above, however, a decision to admit a person can only be made where there are no less-restrictive alternatives reasonably available to achieve the harm-prevention objective. New section 152(5) ensures that, subject to subsections 152(6)–(7), the duration of any limitation on rights is restricted to the period required to achieve this purpose. Moreover, pursuant to section 151(4) (as amended by clause 110) and new section 152B (inserted by clause 113), a person can only be admitted to a residential treatment facility for a period not exceeding 5 years, with further extensions of 12 months where specified criteria are satisfied, including that there is therapeutic benefit for the person.

Information provided to Disability Worker Registration Board of Victoria

Clauses 132, 137 and 139 of the Bill amend the DSS Act to require the provision of certain information, including an applicant’s criminal history or NDIS clearance (if the applicant has one), to the Disability Worker Registration Board of Victoria. In addition, clause 138 inserts new section 252(h) into the DSS Act to clarify the record-keeping obligations of the Board in relation to information about a disability worker’s NDIS clearance. To the extent this information may include personal information, these clauses may interfere with a person’s right to privacy under section 13(a) of the Charter. However, any interference with the privacy interests of applicants is minimal, as persons seeking to participate in a regulated industry hold a diminished expectation of privacy in information obtained by the regulator for that purpose.

There is, in any case, no limit on the Charter right to privacy as any interference with privacy is lawful (the amended provisions of the DSS Act are clear and accessible) and non-arbitrary. The amended provisions of the DSS Act are reasonably necessary to facilitate the Board’s ability to determine registration applications, including to assess whether applicants are fit and proper persons to be registered as disability workers. The Board exercises a protective function, given the vulnerability of persons with whom such workers will engage. The amendments serve the important purpose of enhancing efficiency and reducing duplication, by enabling the Board to consider an NDIS clearance (where available) in lieu of a criminal history check.

Amendments to other Acts relating to SDA dwellings and accommodation approved by the Senior Practitioner

A number of clauses of the Bill amend other Acts to expand the application of certain provisions to include accommodation approved by the Senior Practitioner under new section 187 (inserted by clause 56) and SDA dwellings. ‘SDA dwelling’ is defined in new section 498BA of the Residential Tenancies Act 1997 (inserted by clause 143) to mean an SDA enrolled dwelling or other permanent dwelling that provides long-term accommodation where daily independent living support is provided to one or more residents with a disability funded by a specified entity or program (excluding the types of dwelling set out in subsection (2)). These amendments ensure that appropriate legal regimes apply to all properties where persons with disabilities are receiving State-funded or Commonwealth-funded disability support.

By way of example, clauses 234 and 256 amend section 17 of the Guardianship and Administration Act 2019 to permit the Public Advocate to exercise their powers of inspection in relation to an accommodation approved by the Senior Practitioner, a short-term accommodation dwelling, or an SDA dwelling. Similarly, clauses 236 and 259 amend the definition of ‘health facility’ in the Medical Treatment Planning and Decisions Act 2016 to include accommodation approved by the Senior Practitioner, a short-term accommodation dwelling, and an SDA dwelling, such that relevant protection in that Act (such as the advance care directive requirements in section 98) apply to persons in those dwellings. Clauses 251 and 263 amend the definition of ‘detained person’ in the Victorian Inspectorate Act 2011 to include persons detained in accommodation approved by the Senior Practitioner and SDA dwellings, such that relevant protections in the Act (e.g., the ability of detained persons to complain to the Victorian Inspectorate under section 92A) apply to those persons.

Some of these clauses may result in the application of provisions of the amended Acts, which may engage Charter rights such as the right to privacy (section 13(a)) and freedom of expression (section 15), to SDA dwellings and/or accommodation approved by the Senior Practitioner. However, in my view, none of the amending clauses create new or greater human rights issues, but simply expand the field of application of existing provisions. In addition, many of the relevant provisions have previously been the subject of statements of compatibility, and were found to be compatible with the Charter (see, e.g., statements of compatibility for the Disability (National Disability Insurance Scheme Transition) Amendment Bill 2019 and for the Guardianship and Administration Bill 2018). I am therefore satisfied that these clauses are compatible with the Charter.

Amendments to Social Services Regulation Act relating to the Worker and Carer Exclusion Scheme (WCES)

Clause 240 of the Bill inserts new sections 100A and 100B into the Social Services Regulation Act 2021 (SSR Act). New section 100A, which requires all reasonable steps to be taken to mitigate any negative effect that an interview or hearing may have on an adult or child WCES service user or a person with the characteristics of a WCES service user. New section 100B introduces additional safeguards specifically in relation to children who are WCES service users or persons with the characteristics of a WCES service user. These additional safeguards are aimed at protecting and promoting the welfare of children who are being interviewed.

Proposed Social Services Regulations will prescribe the services in scope of the WCES. It is intended to prescribe certain out of home care services as in scope of the WCES, such as foster care services and residential out of home care services. A WCES service user will include children in out of home care, as well as some care leavers who may be aged 18 years or over.

I note that these amendments do not extend the Regulator’s coercive powers in relation to adult and child WCES service users. Rather, the new sections provide safeguards for such persons where they participate in an interview or attend a hearing.

Protection of children

The Regulator’s existing investigation powers as they apply in relation to children engages the right of every child, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child. To the extent that participation in a Panel hearing or interview may adversely affect a child’s welfare, and consequently the right under section 17(2) of the Charter, it is important to bear in mind that the exclusion scheme and the power to conduct WCES investigations is protective of the interests of children.

Further, the new provisions introduce safeguards to mitigate any adverse impacts on children that may arise from the exercise of these powers. In addition to the overall requirement at new section 100A that applies to the Regulator, a Panel, an authorised officer or an independent investigator to take all reasonable steps to mitigate any negative effect an interview or a hearing may have on either an adult or child WCES service user or person with the characteristics of a WCES service user, new section 100B provides for engaging a person with appropriate qualifications, training or experience in interviewing child victims of abuse to conduct interviews on behalf of the aforementioned bodies. There is also an obligation to consider whether the child’s primary family carer should be present, and for interviewers to consider and take all reasonable steps to mitigate any negative effect that the interview may have on the child.

Therefore, I am satisfied that these amendments will promote children’s right to protection in the Charter.

Amendments to the Social Services Regulation Act relating to the powers of entry without consent

Clause 242 of the Bill substitutes section 113(2) and inserts section 113(2A) into the SSRAct. Substituted section 113(2) sets out requirements for the power of entry into bedrooms in residential premises. In most cases, entry into bedrooms is only permissible with consent, as is presently the case in current section 113. However, there is also a new power authorising entry without consent or a warrant into a bedroom of a service user in residential premises occupied by a provider of a supported residential service or a prescribed residential disability service in specified circumstances.

Right to privacy

The new entry power interferes with the right to privacy, as authorised officers and independent investigators may enter, in limited circumstances, a resident’s bedroom without consent. As a person has an increased expectation of privacy in relation to their bedroom, this has the potential to be a significant interference. In my view, this power is precisely prescribed, aimed at achieving a legitimate objective and equipped with sufficient safeguards to ensure it is not arbitrary.

As a starting point, an authorised officer or an independent investigator must first take all reasonable steps to obtain the consent of the service user before entering. If consent is unable to be obtained, entry may only be effected if the authorised officer or independent investigator considers the entry reasonably necessary for the purposes of monitoring compliance with a provision of the Act, or investigating a possible contravention of the Act, having regard to the considerations set out in new section 113(2A). These include whether entry to the bedroom is necessary to eliminate or reduce an immediate risk of harm to a service user, whether the purpose of the entry may be achieved by a less intrusive means and any other reasonably appropriate matter.

These legislative safeguards will be further strengthened by operating procedures developed by the Regulator which would require an authorised officer to record any use of this entry power when a resident is present and has not given their consent. These decisions may then be reviewed by the Regulator to ensure they are being exercised properly.

This amendment intends to protect residents by balancing their rights with the need to ensure they are not being improperly influenced by proprietors to prevent an inspection, and the need to ensure residents are receiving appropriate care. These service users are often vulnerable and entry to their rooms is required to ensure a provider is complying with requirements aimed at ensuring the service user’s safety.

Taking into account the above safeguards and the important purpose served by the provisions, I consider that to the extent that the powers authorise interference with privacy rights, that interference will be lawful and non-arbitrary, and compatible with the Charter.

The Hon. Ros Spence MP

Minister for Prevention of Family Violence

Minister for Community Sport

Minister for Suburban Development

Second reading

Ros SPENCE (Kalkallo – Minister for Prevention of Family Violence, Minister for Community Sport, Minister for Suburban Development) (10:37): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

This Bill reintroduces substantively the same reforms proposed in the Disability Amendment Bill 2022 consistent with the Government’s ongoing commitment to better support Victorians with disability. There are a few minor and technical amendments for clarification, as well as additional reforms to support the functions of the new Social Services Regulator when it comes into operation in 2024.

There are more than 1.1 million people with disability living in Victoria. This Disability and Social Services Regulation Amendment Bill 2023 makes important and critical amendments to enhance services, safeguards, rights and protections for people with disability; address National Disability Insurance Scheme (NDIS) implementation issues and address unintended regulatory burdens and operational difficulties. This Government is committed to promoting and protecting the rights of people with disability in Victoria, and these reforms deliver on the government’s promise to introduce legislation to better support persons with disability in our community. These amendments will improve the delivery of state funded disability services by ensuring that there are better legislative protections and supports.

The Disability Act 2006 is being reviewed in stages. The first stage occurred in 2019, in advance of the commencement of the NDIS. Technical amendments were made to reflect the changes in roles and responsibilities of the Commonwealth and Victorian Governments in relation to the funding, delivery and regulation of services, as well as the interface between the residual state disability and mainstream service systems.

This Bill forms part of stage two of the Disability Act Review and will amend the Disability Act to: promote rights for persons residing in residential services and those subject to compulsory treatment and restrictive practices; align and reduce duplication of requirements for the use and authorisation of restrictive practices by registered NDIS and disability service providers; improve processes and practices relating to supervised treatment orders; provide a clear legislative authority to disclose protected identifiable information and clarify the functions and responsibilities of the Secretary to the Department of Families, Fairness and Housing.

This Bill will also amend the Residential Tenancies Act 1997 to address gaps in residential rights and protections for people living in specialist disability accommodation and the Disability Service Safeguards Act 2018 so that an NDIS worker clearance is accepted in lieu of a criminal history check. The amendments in this Bill align and respond to a key area of focus by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with a Disability to ensure appropriate safeguards are in place for people with disability.

As part of this government’s commitment to better support Victorians with disability, a new nation first legislative framework is being developed to establish a contemporary and proactive disability inclusion scheme to support the vision of a barrier free Victoria for all people with a disability. The Disability Inclusion Bill exposure draft was released for public comment in September 2022 and forms part of the stage two reforms. I am grateful to all the people who participated in the public consultation process and provided feedback on the exposure draft. The Government will be carefully considering this feedback as we progress work on proposed disability inclusion legislative reforms.

Our aim is to ensure Victoria has a contemporary and modern legislative architecture to strengthen and complement the ambitious reform agenda endorsed in Inclusive Victoria: State disability plan 2022–2026. The state disability plan outlines the government’s approach to driving change towards a fairer community that supports every Victorian to fully participate in all areas of life.

The Disability and Social Services Regulation Amendment Bill, now before the house, addresses a number of policy and legal issues that will improve services, rights, protections and safeguards for people with disability.

Functions of the Secretary

Amendments are being made to the Disability Act to clarify the role, responsibilities and powers of the Secretary to the Department of Families, Fairness and Housing. The Bill provides that the Secretary is only responsible for services that the Secretary funds. When the Social Services Regulation Act 2021 commences, the majority of providers registered as a disability service provider will not be providing services funded by the Secretary. These amendments will reduce any overlap of legislative responsibility and ensure there is clarity regarding the Secretary’s responsibilities. The Bill amends the Disability Act to confirm that decisions about disability and access to services are made by the Secretary only in relation to disability services funded by the Secretary. It also clarifies that the Secretary can acquire, hold or dispose of land for the purposes of being a specialist disability accommodation provider. Amendments are also being made to enable the Secretary to dispose or deal with land with or without consideration in certain circumstances.

Information sharing

The Disability Act contains information sharing arrangements that are outdated and there is a lack of express power authorising the disclosure of identifiable information so that people can carry out their functions under the Act. Protected information that identifies the person to whom it relates can only be disclosed by people specified in the Bill and for a specified purpose such as to obtain legal advice or to prevent or lessen a serious threat to a person’s life, health, safety or wellbeing. A person can be found guilty of an offence if there is an unauthorised disclosure. The amendments will ensure that important and critical information can be shared.

Residential services

The Disability Act contains rights for residents of residential services whose accommodation is exempt from the Residential Tenancies Act. The Bill amends the Disability Act to clarify the services being provided; the rights, duties and requirements residents may be subject to within the service and the roles and responsibilities of service providers delivering residential and treatment services.

Restrictive practices

In 2019, amendments were made to restrictive practices to facilitate transition to the NDIS. Further amendments are required to remove uncertainty about the application of existing Parts and Divisions in the Act; better align requirements and responsibilities for NDIS and state funded disability providers and ensure there is consistency and accountability in the use of restrictive practices. The Bill will explicitly provide that the existing offence that relates to use of unauthorised restrictive practices for disability service providers also applies to registered NDIS providers and that registered NDIS providers must meet the requirements for authorisation of restrictive practices in the Disability Act for people accessing services funded through the Commonwealth Disability Support for Older Australian’s program. It will also expand the role of the Senior Practitioner to include promoting the reduction and elimination of the use of restrictive practices by registered NDIS providers and disability service providers to the greatest extent possible and additional powers to provide directions to providers about appointment of Authorised Program Officers.

Compulsory treatment

Residential treatment facilities

The Bill makes a number of important changes that will have an impact on compulsory treatment provided to persons with an intellectual disability that are residing in residential treatment facilities. The Bill will clarify that the statutory admission criteria will apply where there has been a re-admission or a new criminal justice or civil order imposed; strengthen the clinical admission criteria; and include an overall residential timeframe for admission to a residential treatment facility and enable extension where it is therapeutically beneficial for a person. The Bill will also ensure treatment plans are appropriately explained and provided in an accessible format and will include specific legislative obligations regarding the provision of information on admission. Changes are also being made to enable prescribed forensic disability service providers, in addition to the Secretary, to operate residential treatment facilities to support service integration and innovation opportunities in the future.

Supervised treatment orders

Amendments are being made to supervised treatment orders to ensure responsibilities and obligations under the Disability Act are streamlined, there are strengthened approval processes and there is clearer information for persons subject to supervised treatment orders. The Bill specifies that a registered NDIS provider is now guilty of an offence if they detain a person other than in accordance with Part 8 of the Act. It also clarifies requirements in relation to treatment plans which include ensuring the treatment plan is clearly explained and provided in an accessible format; all service providers delivering services are disability service providers and registered NDIS providers and they are identified in the treatment plan, and a treatment plan being used by registered NDIS providers meets the NDIS requirements for a behaviour support plan. The Senior Practitioner will also have the power to approve properties as being suitable to provide supervised treatment for persons with an intellectual disability.

The Bill also clarifies what information must be included in a certificate provided by the Senior Practitioner during an application for a supervised treatment order; who is a party to a proceeding; that an application does not need to be made to confirm expiry of an order, and that the Victorian Civil and Administrative Tribunal can consider prior risk related material. These amendments will help ensure that the STO application process is transparent, and that VCAT has the best available information before it upon which to determine an STO application. It will also help ensure that all parties will have an understanding of the information that may be used as evidence so that they can review and respond to it appropriately.

Dissolution of the Disability Services Board and community visitors

The Bill makes some other miscellaneous amendments which will result in the dissolution of the Disability Services Board and expansion of the properties that community visitors can visit. As the majority of disability services have transitioned to the NDIS, the scope and role of the Disability Services Commissioner and Board has been significantly reduced and the Board is no longer required. As such, the proposal in the Disability and Social Services Regulation Amendment Bill to remove the Disability Services Board will not lead to a reduction in safeguards for people. The Bill also allows the Minister to declare new types of accommodation at which persons receive disability services, NDIS services or services under the Commonwealth’s ‘Disability Support for Older Australians Program’ to be subject to the community visitors program. This will enhance safeguards and protections for people with disability. Properties approved by the Senior Practitioner as suitable to provide suitable treatment will also be subject to the community visitors program.

Amendments to the Residential Tenancies Act

The Bill also removes barriers for residents of group homes provided by disability service providers from receiving rights under the Residential Tenancies Act. This Bill amends the Residential Tenancies Act to ensure residents in group homes meet the definitions in that Act and residential rights and protections are afforded. The Bill will provide for transition of existing group homes to specialist disability accommodation residency arrangements under Part 12 of the Residential Tenancies Act and repeal group home provisions from the Disability Act. This was the original objective of previous amendments made to the Residential Tenancies Act which had not been realised in full due to unanticipated impediments for persons to access specialist disability accommodation provided under the NDIS.

Amendments are also being made to the definitions in the Residential Tenancies Act to ensure residents in specialist disability accommodation and NDIS and state funded long term disability accommodation are afforded residential rights and protections under the Residential Tenancies Act. The amendments will also provide protections for persons with a disability living in these types of accommodation under a residential rental agreement, whether written or implied, prior to commencement of this Bill, who may not have previously qualified for a specialist disability accommodation residential agreement. Their rental provider must, within 6 months of commencement, give them the choice of entering into a specialist disability accommodation residential agreement instead, along with a copy of the specialist disability accommodation agreement information statement.

Amendments to the Disability Service Safeguards Act

The Bill makes minor amendments to the Disability Service Safeguards Act 2018. The amendments will allow the Disability Worker Registration Board of Victoria to accept a NDIS clearance in lieu of a criminal history check when disability workers voluntarily seek to register. The screening checks for NDIS registered disability workers are currently duplicative and the amendments will reduce red tape for disability workers seeking registration. The Bill also strengthens information sharing provisions between the Board and the NDIS worker screening unit to enable the Board to obtain information about changes or cancellations of the NDIS clearance. A variation to the amendments from the lapsed Disability Amendment Bill 2022 has been made to enable the Board to confirm the NDIS clearance electronically and not be required to obtain a physical copy of a clearance certificate.

The amendments do not affect the principles or intent of the Disability Service Safeguards Act. The amendments are expected to encourage more disability workers to register and thereby accelerate efforts to professionalise the disability workforce, improve the quality of services delivered and increase choice and control for people with a disability.

Amendments to the Social Services Regulation Act 2021

A new regulatory scheme for social services will take effect from 1 July 2024. The scheme strengthens protections for some of our most vulnerable Victorians – those accessing social services.

The proposed amendments in this Bill will ensure the regulatory framework operates efficiently and effectively and will enhance the Regulator’s ability to keep service users safe by improving its ability to monitor compliance in certain accommodation settings.

The amendments will enable an Authorised Officer to enter the bedrooms of those who live in supported residential services and disability residential services without consent or a warrant. This amendment is necessary to ensure that a provider is complying with requirements aimed at ensuring the service user’s safety, providing greater protections for residents in these services. Importantly, this is subject to a number of safeguards, including that the authorised officer believes it is reasonably necessary for the purposes of monitoring compliance with a provision of the Act or investigating a possible contravention of the Social Services Regulation Act, and that there is no less intrusive way to achieve the purpose of the inspection. In addition to these safeguards, the Regulator will develop operating procedures requiring an Authorised Officer to record any use of the power to enter when a resident is present and has not given their consent. These decisions may then be reviewed by the Regulator to ensure they are being made properly.

The provisions will balance the rights of residents to privacy, dignity and respect with their right to access safe services and to live in a safe premises.

Safeguards are also proposed to minimise any harm that may be caused in relation to interviews or hearings with those in out of home care, who are mostly children, under the Worker or Carer Exclusion Scheme. Similar provisions exist for the reportable conduct scheme and the child safe standards scheme.

Consequential, minor and technical amendments are also proposed to ensure the new regulatory scheme operates as intended.

Conclusion

The Government is committed to ensuring disability legislation is contemporary and fit-for- purpose. This Bill will bring about critical reforms that will improve the delivery of disability services and enhance safeguards for Victorians with disability. Wide stakeholder consultation has occurred in relation to these legislative amendments. I would like to thank everyone who has contributed to the development of this Bill, in particular those individuals and organisations who provided submissions to our Disability Act Review consultation paper last year, members of the Disability Act Review Advisory Group and the Victorian Disability Advisory Council. These contributions have played an important role in ensuring the Bill has been informed and enriched by the experiences of people with disability in our community. The Government is looking forward to continuing reforms that promote disability equality and inclusion and enhance the quality and effectiveness of our services.

I commend the Bill to the house.

Cindy McLEISH (Eildon) (10:37): I move:

That this debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 5 April.