August 14, 2020 

Action needed on disability laws to protect vulnerable people 

Recent reports of a disability worker charged with sexually assaulting a woman in his care highlights once again the need for stronger protections for people with disability in South Australia.

It follows allegations made under Parliamentary Privilege by Federal MP Rebekah Sharkie that the NDIS Safeguards Commission had not adequately investigated complaints by NDIS participants about being sexual assaulted by care workers. 
The Law Society recognises that important steps are being taken to identify and address the shortcomings in State and Federal systems responsible for providing care, services and funding for people with disability, including:

• a Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability;
• an independent Federal inquiry being established to investigate the adequacy of care provided to Ann Marie Smith; and
• the establishment of a South Australian Safeguarding Taskforce to examine gaps in oversight and safeguarding for South Australians living with disability in the State.

The Law Society commends the State Government for immediately accepting key recommendations of the Safeguarding Taskforce’s report into current gaps in disability services, several of which reflect the Society’s position as conveyed to the Taskforce via written and oral submissions. However, it is crucial that any new legislation that gives effect to disability reforms is drafted carefully so as to ensure safeguarding mechanisms are effective and just.

The Society supports the expansion of South Australia’s Community Visitor Scheme, which has been proposed via a Bill introduced by Nat Cook MP and recommended by the Safeguarding Taskforce.

While the Society has suggested important improvements to the current Bill, it supports in principle the introduction of a scheme whereby a visitor can inspect any disability accommodation premises, day options program premises or supported independent living premises (including private homes) in SA.

The State Government have cited that constitutional concerns with regards to enacting a State-based Community Visitor Scheme presents significant obstacles to broadening the scope of the Community Victor Scheme as proposed in the Disability Inclusion (Community Visitor Scheme) Amendment Bill 2020.  

In response to these obstacles, the Safeguarding Taskforce recommended that a formal agreement between the Commonwealth and State about the operation of a State-based CVS be arranged, however the Society cautions that such an agreement would not prevent or remedy constitutional inconsistencies found between State and Federal laws addressing safeguarding for people with disability. In the Society’s view, constitutional concerns ought to be resolved by carefully drafting legislation such that it does not overlap with the legislative functions of the NDIS Quality and Safeguards Commission as outlined in the National Disability Insurance Scheme Act 2013 (Cth).

The Society acknowledges the clear benefit of a State based visitor scheme to strengthen protections for people with disability with regards to upholding their rights and responding to concerns of abuse and neglect, but recognises that such scheme must carefully balance the individual’s right to privacy.

The Society welcomes the Government’s announcement that it will bring forward the expansion of the Adult Safeguarding Unit, which is charged with responding to concerns of abuse of vulnerable people. Currently the Unit only has jurisdiction to investigate abuse allegations concerning South Australians, aged 65 years or older, and was due to be broadened to apply to all vulnerable adults, including those with a disability in 2022. The Government has confirmed that the Unit will be expanded from 1 October this year.

The Society strongly encourages greater education for people with disability, their families and the general community about existing laws that are designed to protect people with disabilities, and how to utilise those laws. The Society also recommends the creation of additional pathways for complaints or reports to be made with regards to violence, abuse, neglect and exploitation of people with disability, especially when it concerns those who have limited capacity to communicate or who face isolation.

TIM WHITE
PRESIDENT
THE LAW SOCIETY OF SA