Wednesday, 4 March 2020
Bills
Disability Service Safeguards Amendment Bill 2020
Disability Service Safeguards Amendment Bill 2020
Statement of compatibility
Mr DONNELLAN (Narre Warren North—Minister for Child Protection, Minister for Disability, Ageing and Carers) (10:43): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Disability Service Safeguards Amendment Bill 2020.
Opening paragraphs
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 Service Safeguards Amendment Bill 2020 (Bill).
In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview
The main purposes of the Bill are to:
1. amend the Disability Service Safeguards Act 2018 (Act) to clarify that an ‘approved registration standard’ is a standard that has taken effect and has been published;
2. repeal provisions relating to provisionally registered disability workers;
3. extend the time period during which the provision of disability services by an individual applying before 30 September 2022 for registration as a disability worker will qualify that individual for registration;
4. provide for consistency with amendments made by the Disability (National Disability Insurance Scheme Transition) Amendment Act 2019 and make various minor and consequential amendments to the Act.
Human Rights Issues
Human rights protected by the Charter that are relevant to the Bill
The human rights protected by the Charter that are relevant to the Bill are:
The right to privacy and reputation (section 13);
The right to recognition and equality before the law (section 8);
The right to freedom of expression (section 15).
Right to privacy and reputation
Section 13(a) of the Charter provides that persons have the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Section 13(b) of the Charter provides that persons have the right not to have their reputation unlawfully attacked. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable in the sense of being disproportionate to the legitimate aim sought.
Section 3(1) of the Act currently defines ‘approved registration standard’ as a registration standard approved by the Minister under section 141(2) of the Act.
The Act refers to the definition of ‘approved registration standard’ in several sections. For example, under section 178(3)(b) of the Act, the Disability Worker Registration Board of Victoria (Board) may require an individual applying for endorsement of the individual’s registration for evidence of successful completion of all periods of supervised practice as a disability worker required by a relevant ‘approved registration standard’. Further, under section 188 of the Act, an application for renewal of registration must include a declaration by the applicant that the applicant has met any recency of practice requirements stated in a relevant ‘approved registration standard.’
The Bill amends the definition of ‘approved registration standard’ so that it is now defined as a registration standard approved by the Minister under section 141(2) of the Act and that has taken effect in accordance with section 143(1) of the Act. Section 143(1) of the Act sets out certain publication requirements.
The Bill ensures that the Board, under section 178 of the Act, can only ask an individual for information about an ‘approved registration standard’ that has taken effect. The Bill also ensures that, under section 188 of the Act, an applicant only needs to include information about an ‘approved registration standard’ that has taken effect.
The changes to the definition of ‘approved registration standard’ in the Bill will result in more extensive protection of the right to information privacy than is currently provided for in the Act because there is now clarification that there is no requirement for an applicant to provide information about an ‘approved registration standard’ that has not yet taken effect. It is also noted that applicants who are seeking to participate in the regulated scheme have a diminished expectation of privacy. Further, the information sought by the Board is necessary for the determination of the application and for the important purpose of ensuring that the provision of disability services is safe.
The Bill is compatible with the right to privacy and reputation.
Right to recognition and equality before the law
Section 8 of the Charter provides that every person has the right to recognition as a person before the law. Further, every person has the right to enjoy his or her human rights without discrimination. Further, every person is equal before the law and is entitled to equal and effective protection against discrimination.
‘Discrimination’ under the Charter means discrimination within the meaning of the Equal Opportunity Act 2010 based on an attribute set out in section 6 of the Equal Opportunity Act 2010. Under the Equal Opportunity Act 2010, direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute. Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons based on a protected attribute, and that is not reasonable.
Several provisions of the Bill impose requirements which may disadvantage people with certain protected attributes (namely employment activity, parental status or status as a carer and disability).
The Bill makes several changes consistent with changes already made to the Act by the Disability (National Disability Insurance Scheme Transition) Amendment Act 2019 with respect to allowing the Victorian Disability Worker Commissioner (Commissioner) to employ or engage staff under Part 3 of the Public Administration Act 2004.
‘Employment activity’ is a protected attribute in the Equal Opportunity Act 2010. Section 16 of the Equal Opportunity Act 2010 states that an employer must not discriminate against a person (a) in determining who should be offered employment; or (b) in the terms on which employment is offered to the person; or (c) by refusing or deliberately omitting to offer employment to the person; or (d) by denying the person access to a guidance program, an apprenticeship training program or other occupational training or retraining program.
Under section 32A of the Act, the Commissioner may employ any person who is necessary to assist the Commissioner or the Commission. Further, the Commissioner may engage a person with suitable qualifications or experience to assist with powers, duties and functions under the Act.
In my view, the fact that the Commissioner can only employ staff under Part 3 of the Public Administration Act 2004 does not limit, restrict or interfere with the scope of the right to recognition and equality before the law. The Bill does not discriminate in relation to who should be offered employment or the terms on which employment is offered. All applicants will be subject to the requirement to be employed under Part 3 of the Public Administration Act 2004.
Further, to the extent that there is any limitation on the right to recognition and equality before the law, any limitation is justified because employment under the Public Administration Act 2004 ensures that employees of the Commissioner and Commission are subject to the requirements of the Public Administration Act 2004, including the public sector values of integrity, impartiality, accountability, respect, leadership and human rights as well as being subject to certain processes including dealing with unsatisfactory performance, misconduct and serious misconduct and important processes relating to maintaining public sector professionalism and integrity.
Currently, where an individual applies for registration as a disability worker before 30 September 2022, for the purposes of section 154(1)(a) of the Act, an individual will be qualified for registration if they have provided services of a kind related to the type of registration applied for at any time between 30 September 2019 and 30 September 2022 for a consecutive period of 2 years and the individual has satisfied the Board that the individual is professionally competent as a disability worker. Although the current law does not directly discriminate and appears neutral on it face, it might indirectly discriminate on persons with parental status or status as a carer or persons with a disability because those persons might recently have taken leave and that time period may not currently be recognised.
The Bill increases the period of time in which an individual must have, for a consecutive period of 2 years or for any period which together amount to 2 years, provided disability services of a kind related to the type of registration applied for required to be considered qualified for registration as a disability worker under section 287(2)(a)(ii) of the Act.
The changes to timeframes in the Bill will result in more extensive protection of the right to recognition and equality before the law than is currently provided for in the Act because persons with protected attributes under the Equal Opportunity Act 2010 now have a longer period that is recognised to satisfy the requirements for registration.
To the extent that the provisions in the Bill may disadvantage people with a relevant attribute and thereby engage the right to equality under the Charter, in my view, any limit on the right is reasonable and justified. There is no less restrictive means to achieve the important purpose of the Act to regulate registered and unregistered disability workers and ensure that disability services are provided in a safe manner.
The Bill is compatible with the right to recognition and equality before the law.
Right to freedom of expression
Section 15 of the Charter provides that every person has the right to hold an opinion without interference. Further, every person has the right to freedom of expression. Section 15(3) of the Charter provides that special duties and responsibilities are attached to the right to freedom of expression and that the right may be subject to lawful restrictions reasonably necessary to respect the rights and reputations of other persons and for the protection of national security, public order, public health or public morality.
Arguably, the Bill limits the right to freedom of expression because the Commissioner can only employ staff under Part 3 of the Public Administration Act 2004. Under the Public Administration Act 2004, public servants are subject to certain obligations including impartiality which might limit employees of the Commissioner or Commission expressing political opinions and thus limiting the right to freedom of expression.
To the extent that the freedom of expression is engaged, the provisions fall within the exception in section 15(3) of the Charter, as reasonably necessary for the protection of public health.
Hon Luke Donnellan MP
Minister for Disability, Ageing and Carers
Minister for Child Protection
Second reading
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 makes minor amendments to the Disability Service Safeguards Act 2018.
This Bill does not impact the objectives, principles or intent of the Disability Service Safeguards Act 2018 and the Disability Worker Regulation Scheme. There is no diminution of safeguards for people with disability.
The amendments in this bill strengthen the Disability Service Safeguards Act 2018 to protect advancements made in choice and control and ensure that people with disability have the right to be free from harm and abuse. They provide greater clarity for disability workers seeking registration, and for people seeking information about registered disability workers, including people with disability, their families and carers, disability employer and the general public.
In summary, this Bill contains four technical and clarifying amendments.
Three amendments relate to disability worker registration, encompassing registration standards, provisionally registered disability support workers, and the transition provisions for registration in the first two years of the Scheme. The fourth amendment considers the rights and responsibilities of the Victorian Disability Worker Commission staff.
The first amendment clarifies that an approved registration standard is one that has taken effect and been published on the Disability Worker Registration Board of Victoria’s website. This amendment makes clear that the standards disability workers are required to meet to obtain and maintain registration are those that are available on the Board’s website. This amendment will provide certainty for areas where registration standards may be made under the Act, such as in relation to exams and assessments required to become registered and requirements to maintain registration such as insurance requirements. This amendment will ensure both disability workers and people with disability understand what it means to be a registered worker.
The second amendment in this Bill removes the provisionally registered disability support worker division of registration. The Disability Service Safeguards Act 2018 has alternate options to register a disability support worker that are well defined and less complex. As a result, the provisionally registered disability support worker division of registration is not required and has been removed.
The third amendment concerns the transitional provisions for registration that apply to the first two years of the Scheme. It ensures that disability workers seeking registration under the two-year experience pathway will be eligible to register at the commencement Scheme’s operation. Further, it increases the timeframe to obtain experience from a three year, to a ten year window. This ensures that competent and safe workers who have taken career breaks or have worked in other sectors, such as aged care, are still able to register.
The final amendment ensures that the rights and responsibilities of employees and contractors of the Victorian Disability Worker Commission are consistent throughout the Disability Service Safeguards Act 2018 and reflect the relevant provisions in the Disability (National Disability Insurance Scheme Transition) Amendment Act 2019.
This Bill proposes reasonable minor amendments to the Disability Service Safeguards Act 2018 that enables a clear and accessible Disability Worker Regulation Scheme to commence on 1 July 2020. It reaffirms the Government’s commitment to a safeguarding framework that supports choice and control for people with disability in Victoria.
I commend the Bill to the house.
Mr R SMITH (Warrandyte) (10:44): I move:
That the debate be now adjourned.
Motion agreed to and debate adjourned.
Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday, 18 March.