Community Services (Complaints, Appeals And Monitoring) Bill

About this Item
SpeakersKirkby The Hon Elisabeth; Nile Reverend The Hon Fred; Chadwick The Hon Virginia; Dyer The Hon Ron
BusinessBill, Second Reading, In Committee

Second Reading

[Debate resumed.]

The Hon. ELISABETH KIRKBY [9.7]: The Australian Democrats congratulate the Minister for Community Services for introducing this bill in tandem with the New South Wales Disability Services Bill. The proposals contained in the bill for independent complaints, appeals and monitoring mechanisms are indeed ground breakers and should go a fair way to giving greater power to consumers of community services. When I entered the Chamber this evening my colleague the Hon. R. D. Dyer was bringing to the attention of the House the situation that exists currently at Carynia Oaks, a hostel west of Lake Macquarie. Carynia Oaks is less than 10 minutes driving distance from my home, and I have lived in that area for the past 20 years. There are several hostels in that area where people who are developmentally disabled live. They have been taken out of an institution and put into that type of accommodation. However, there is absolutely no doubt that the situation at Carynia Oaks is totally and absolutely unacceptable. I am informed that there are 151 residents there; the Hon. R. D. Dyer said that the number was now 154.

The Hon. R. D. Dyer: That is according to the Newcastle Herald.

The Hon. ELISABETH KIRKBY: I know where their accommodation is. It is off the main road that leads to my home, to my property. I have driven up there and observed it from the outside. I see the inmates of that hostel walking up and down the road every time I drive along it. A few weeks ago a very serious incident occurred when an elderly resident of Carynia Oaks decided that he was totally unhappy there and that he would leave. It was six weeks before he was found. During that period, the police, local bushfire brigade and local residents searched high and low for this man. He was elderly, he had been born with a developmental disability and had been cared for by his parents until their death. While they were still alive, he had done odd jobs in the bush and on a nearby dairy farm. On the death of his parents, he was transferred to the care of his elder sister until her death. It was only on her death, in late middle age, that the Guardianship Board - I assume - decided that a hostel would provide suitable accommodation for him; and they put him in Carynia Oaks.

Never before in his life had he lived in a hostel; he had always lived in a warm, caring family environment. He does not like living in Carynia Oaks, so from time to time he goes bush. On this occasion he went bush for six weeks. The police did not find him; the staff of Carynia Oaks did not find him. A neighbour and friend of mine with whom I am closely associated in the running of my property actually found him. This gentleman had built himself a humpy in a neighbouring paddock and had been living there. He had been eating mushrooms or anything else he could forage. At night, after dark, he had returned to Carynia Oaks, broken into the kitchen, stolen more food and gone back to his humpy in the paddock. During that time he lost a considerable amount of weight.

I now pass him on the road every single time I drive from my home to Sydney. As I explained to one of the Minister's advisers, he is now looking rather like one would imagine Gandhi looked - he is skeleton-like. When my neighbour found him, he spoke to him and gentled him: "Come on, mate, come with me, I will give you a cup of tea". He took him back to his home, gave him a cup of tea and some food and talked to him. We then began to learn more about his feelings. He is absolutely helpless. His pension is taken away from him. He does not have the capacity to understand what avenues of complaint are open to him and, much against his will, he has been placed in a hostel like Carynia Oaks.

I contend that that is totally and absolutely unsatisfactory. He is able to care for himself up to a point. He has received only a little education. He is certainly not able to fight for himself. He does not deserve to be put into a totally unsatisfactory hostel with 151 or 154 other residents. I cannot believe it would not be possible for the Department of Community Services to find a group home for him
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where he could live with perhaps four or five other people in a more congenial and family-like environment. When the Government made the decision that people with disabilities were to be taken from institutions and put back in the community, I did not understand that to mean that they would then be moved into a for-profit hostel with an absentee licensee and a highly unsuitable manager. In my opinion that is just as bad as being in an institution.

The Government must come to grips with that problem, because I am certain Carynia Oaks is not the only institution of that type in New South Wales. The department's attitude of "We know it is unsatisfactory so we will license it for only six months; we will not give it a longer licence" does not address the problem. I make a public plea to the Minister, as I have made to him privately through his advisers, to look into the situation and find alternative accommodation as a matter of priority.

Therefore, the importance of complaints, appeals and monitoring mechanisms cannot be overstated. As I have just pointed out by means of but one example, consumers of community services are vulnerable because of their age and the extent of their disabilities. They often lack the confidence or ability to redress wrongs committed against them if their rights are infringed. Frequently the courts are inaccessible to them. They may put off taking action because they fear retribution if they complain. In the October 1992 newsletter of the Council for Intellectual Disabilities, Jim Simpson cited a number of examples where rights protection legislation is necessary. I should like to quote briefly from those examples.

The first example is where a resident of an institution received bad bruising. He told his parents that he was punched and kicked by a nurse. The parents spoke to the director of nursing, who said that the nurse denied it and therefore nothing more could be done. The parents felt that taking the matter any further within the department would only lead to their being labelled as troublemakers and make it harder for them to gain co-operation from the staff for anything at all. So that was the end of the matter. In another example two residents of a house became close friends and began to talk of marriage. At this point management moved them into different houses and restricted their access to each other, therefore denying them the natural support and solace that individuals who do not suffer from developmental disabilities are able to obtain.

In both of those examples, people were treated unfairly, but at the time this newsletter was written there was nowhere they or their families could go to get justice. Only a strong disability services law and a rights protection law will solve these problems. I hope that the bill before the House will achieve that. It is clear that monitoring mechanisms are essential, because consumers themselves may be unable to make complaints. Moreover, these mechanisms will help to review and improve service standards. Finally, the new structural arrangements, under which the Department of Community Services is the main funder of disability services, make a consumer check on bureaucratic power necessary.

The independence of the complaints, appeals and monitoring mechanisms is extremely important, because of a conflict of interest in having the Department of Community Services investigate itself and because of a fear that complaints by consumers will lead to their being downgraded. It is obvious that central to the effectiveness of the complaints, appeals and monitoring mechanisms is the appointment of an independent Commissioner for Community Services, who will monitor the standards and assess the policies and practices of the Department of Community Services and its functionaries under the community services legislation.

The independence of the office of the commissioner will be achieved by its having its own budget and its own staff. Also, the commissioner will be appointed for a fixed number of years and may be removed during that time for misbehaviour, incompetence or incapacity. The commissioner's powers will include the power to investigate complaints, to initiate inquiries and to issue subpoenas and search warrants; the ability to require a report on actions taken on the commissioner's recommendations, the ability to refer matters with recommendations for action, the ability to make annual and special reports to Parliament, and the ability to protect people from retaliation for making complaints. As the Hon. R. D. Dyer has already pointed out, a community visitors program under the administration of the Commissioner for Community Services is to be established to monitor service delivery. Community visitors will have the power to interview residents and staff in private. Other powers include the power to inspect records, and to provide the Minister and the commission with advice or reports.

The bill will contain mechanisms to implement alternative dispute resolution in an attempt to resolve complaints as quickly and informally as possible. The Community Services Commission will have a solution facilitation division to which complaints may be referred. The bill also establishes a Community Services Appeals Tribunal, which will have the power to determine breaches of community welfare legislation to ministerial level. I believe that this is a very important point. The tribunal will be able to overturn decisions and replace them with legally binding ones when all other methods of dispute resolution have failed.

Finally, the bill establishes the Community Services Review Council, which will comprise the independent Commissioner for Community Services, the Director-General of the Department of Community Services, the Ombudsman, the President of the Guardianship Board, the President of the Tribunal, the Public Guardian and six members appointed by the Minister. The functions of the review council will be to encourage the co-ordination of the functions of the tribunal, the commission, the community visitors and other people involved in the provision of community
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services, and in addition to provide the Minister with strategic advice on the operational effectiveness of the appeals and monitoring system.

I have one reservation and that is that the home care and services provided under the Home and Community Care may not be covered by the commissioner, because they may be provided by departments other than the Department of Community Services. I have a feeling that that may turn out to be a hole in the new protection being afforded to people with disabilities, the aged, and other HACC clients. I would ask the Minister in reply to address that very real concern. As the Hon. Ron Dyer has said, there is absolutely no denying that this legislation, in conjunction with the Disability Services Bill, marks a significant step forward for people with disabilities. The mechanisms in the bill provide the means by which the rights mentioned in the Disability Services Bill may be enforced in a positive and meaningful manner. I hope that the Government maintains its commitment to the complaints and appeals mechanism, and I hope also that the Government will ensure that adequate resources are provided for that tribunal every year.

The bill has the support of the community sector. I hope, therefore, that the co-operative relationship between that sector and the Minister, which has been in evidence throughout the development of the bill, will continue. Proof of the step forward is that it has been possible over a period of months to have lengthy negotiations and discussions with the Minister, that the concerns on both sides have been taken into account, and that this legislation - which I support - has as few problems associated with it as is possible in any legislation. I have great pleasure in supporting the bill.

Reverend the Hon. F. J. NILE [9.24]: Call to Australia has pleasure in supporting the Community Services (Complaints, Appeals and Monitoring) Bill. As has been mentioned by other speakers, it is a very important and unique piece of legislation that will put New South Wales in the forefront of the provision of services for disabled persons. This legislation is the most significant reform of client complaint or grievance handling ever introduced in Australia. I should like to put on the record Call to Australia's concern and support, and congratulations to the Minister for Community Services and Assistant Minister for Health as the Minister responsible for the legislation.

I believe the legislation sets a good example and is a model example of the Fahey Government approach to be followed by other Ministers. It demonstrates a caring and compassionate Minister, one who has shown his willingness to listen and who has displayed a genuine interest in and concern for the people of this State, particularly those who come under his portfolio. It will be a genuine bridge between the Government and the community and demonstrates something that is very important: that elected governments must realise that they are the servants of the people, not their masters. I believe that the Minister who has introduced the legislation recognises the need to be a servant of the people, especially a servant of those in our society who are disadvantaged or disabled.

The Community Services (Complaints, Appeals and Monitoring) Bill and the Disability Services Bill are a tribute to a caring Minister, and certainly reflect what I believe is a very important aspect of government, the caring face of government. We heard some of those terms used after the recent Federal election, which the coalition lost. There has been an ongoing review of that failure and the point has been made, and I believe it is valid, that it is not sufficient just to talk about economics or business or profits. Though they are important aspects of our society because they provide the revenue which in turn provides services in areas of need, there also has to be a human face to government and to legislation. That may be one of the reasons, perhaps, for the coalition's failure in the recent Federal election - not because it did not have that face, but because it failed to show it to the public.

It is important to have legislation of the type proposed because, unfortunately, there have been times when governments, Ministers or public servants in important positions in government departments - those who are often called bureaucrats - have been criticised. There has been evidence of that. I am not speaking particularly of the Department of Community Services; bureaucrats in many government departments have shown an attitude that has not been positive, which perhaps has appeared to be uncaring and thoughtless. It has perhaps been unintended, but their actions have been interpreted in that way. There has been mention already of some of the practical problems that have occurred, including the very sad case referred to by the Hon. Elisabeth Kirkby. I am sure that all honourable members share her concern. The Richmond report dealt in part with disabled people in some of the centres at Ryde. It was said that actions were being taken and decisions made supposedly for the benefit of the disabled.

Some disabled people are distressed by one major omission from those discussions, so far as I could ascertain - that no one consulted them. No one

took the trouble to find out what they wanted or what they thought about some of the proposed changes. No one spoke to the people who would be directly affected by those changes. It is almost as though well-intentioned bureaucrats thought they knew what was best. Some policies that were put in place have had tragic results. Not only have disabled persons been poorly treated, but in the past couple of years disastrous fires in some of these places have resulted in deaths of residents. Some disabled persons expressed concerns about being told where they were going to be moved and when they were going to be moved. Often they were not clear why they were being moved, or where they were being moved, and there were no clear plans or provisions for future suitable care and accommodation.

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One could argue that this complaints procedure is long overdue, and that there would have been genuine cause for complaint at that particular time. Those of us who have reasonably good health often talk to the carers rather than the persons who are being cared for. The carers, again with good intentions, state what they think is good for the people for whom they care, but it is important to speak to the disabled or handicapped persons. Often handicapped people experience frustration when their bodies do not respond to the orders of their brains. They are quite intelligent and have good thought processes but they cannot respond in the way they should, with the rapid speech to which those who have the ability to speak are accustomed. When people listen to them they jump to the conclusion that those handicapped people have mental disabilities, and they do not have the patience to wait for them to express what they really feel.

Those of us who have the ability to speak and listen should demonstrate more patience. Obviously disabled people experience a great deal of frustration at that point, which increases when people around them do not spend time to listen to them. It may take some time before they finally communicate what they want, but it is important that they be given that opportunity. Staff of government departments, institutions and places of care should be encouraged to have an attitude of care and patience when dealing with handicapped people. During the International Year of the Disabled Persons in 1981, when Mother Teresa visited Australia, I had the privilege of witnessing the great expressions of joy of thousands of disabled persons when she met with them in Parramatta Park. I think about 9,000 people attended on that occasion and thousands attended at Mount Druitt and at other venues. Her deep love and care for these persons radiated. It was a great time of inspiration, of love in action and a true caring attitude. I know is not always possible for public servants to demonstrate such care, but we must do all that we can to encourage it.

I congratulate the Minister on this legislation. I am sure it marks the beginning of similar legislation being introduced into the Parliament in due course, covering various areas of need, concern and care that affect the family, children, and so on. I believe this will be a positive contribution towards the quality of life in this State. This legislation is the most significant reform of client complaint or grievance handling ever introduced in Australia. In the past governments have been loath to open the door to these situations because they become vulnerable to those complaints and have to deal with them. It is far better to have a caring and listening government, one that is prepared to be realistic and deal with real areas of need. Through this proposed mechanism I hope the basis for complaint will be eliminated, that problem areas and perhaps unsuitable people involved in this area will be identified, so that in due course we shall have fewer complaints.

An independent Commissioner for Community Services will monitor complaints, grievances and services to clients of community services. By dealing with those complaints, we shall further reduce complaints. The commission's staff will cover the Department of Community Services and all services funded by the department. The Commissioner for Community Services will establish a program for community visitors who will report direct to the commissioner. They will visit and inspect all residential services or services provided or funded by the department. Obviously those visitors must listen to the residents at those locations and not merely to the carers or staff who may interpret what they think are their concerns.

In addition, an independent community services appeals tribunal will be set up to provide for administrative appeals on licensing decisions by the director-general or the Minister or regulatory decisions which affect a person's ability to pursue his or her trade, such as child care services, boarding-house operators, foster carers and so on. The legislation also provides for the new concept of alternative dispute resolution techniques to be used to resolve grievances or complaints. I understand that this is the first time that legislation providing for that approach has been introduced, for which I congratulate the Government. The object of the legislation is to have quick resolution of clients' concerns rather than drawn out inquiries which may take months to decide who is right or who is wrong.

The legislative arrangement is aimed at changing a culture for all service providers to the pro-active role of resolving clients' concerns. It is aimed at having 75 per cent of grievances resolved at a local level. The commissioner, as a result of consultation, will be independent, and again the Government has taken a courageous step forward. Governments do not like to have independent commissioners, as we have witnessed with the Independent Commission Against Corruption. I believe the Government is to be congratulated on having the courage to establish an independent commissioner to investigate and resolve complaints.

The commissioner can report to Parliament, via the Minister, if a service does not respond to a report. The commissioner can monitor services, as well as deal with complaints. There is specific provision to monitor services to wards. The commissioner deals with complaints concerning services funded or administered by the Minister for Community Services. The commissioner may also act as advocate for disadvantaged persons across government. His role includes educating and informing service providers - I use the word "carers" - across government on service provision for disadvantaged persons. The commission can investigate on its own motion. The commissioner can seek subpoenae or search warrants from local courts. The commission has the power to require service providers to report on action taken on its recommendation. The commissioner reports annually to Parliament and can provide special reports to the Minister for tabling in Parliament. They are some of the main aspects of the bill before the House and I
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commend the Government for that.

I understand that the commissioner will be appointed by the end of 1993 and will set up the commission. As I said, the commissioner will be the administrative support for the community visitors and will be appointed via a public process. It is planned that the independent community services appeals tribunal will be established by the end of 1993. Its membership will be drawn from the community and legal arenas. That timetable gives encouragement to the people affected by this legislation. It is not something in the distant future; it is anchored in a real timetable. It will be implemented and in a short time there will be a great deal of benefit to the people who are affected by this legislation. We commend the Government for this legislation and give it our full support.

The Hon. VIRGINIA CHADWICK (Minister for Education and Youth Affairs, and Minister for Employment and Training) [9.42], in reply: I thank all honourable members for their contributions on what is clearly a most important piece of legislation. Many people have indicated that the legislation is, in "Yes, Minister" terms, courageous. It is landmark legislation; we are taking a step with little guidance. It is unique in Australia. There are no known precedents or examples elsewhere that we can turn to, to try to ascertain what the result will be. However, there is support, excitement and good will on all sides of this Chamber and the other Chamber. I thank Reverend the Hon. F. J. Nile and the Hon. Elisabeth Kirkby for their support. There is bipartisan support; all sides of the political spectrum want this legislation to work and to achieve the goals which are agreed to across the spectrum. That gives this exciting, new, different and brave legislation its best possible opportunity for success.

It would be remiss of me if I did not acknowledge that there are two other important components of this legislation which will be absolutely critical to its success or otherwise. I feel that it will be successful, for a lot of work has gone into it to ensure its success. In the same way that there is bipartisan support for the legislation, there has been extensive consultation - more than ever on a piece of legislation of this kind - and rightly so. I acknowledge the contribution of many individuals and organisations, not only to the legislation itself - although the consultation on that has been exhausting and exhaustive - but over a long period the building blocks have been put in place - whether in the statement of principles for people with disabilities or the establishment of the original community welfare appeals tribunal, fondly known as CWAT.

The Hon. R. D. Dyer: Fondly?

The Hon. VIRGINIA CHADWICK: It has in fact been the subject of debate between the Hon. R. D. Dyer and me over a long period. Each of those building blocks has led us forward to where we are this evening with this landmark legislation. At each step along the way an enormous contribution has been made by individuals and groups. If the same support, encouragement, constructive criticism and good will can take us forward into uncharted territory, I have no doubt that we shall see goals being achieved by this legislation. All the good will in the world, all the work that has been undertaken and all the high hopes that we have for this legislation will come to nought if we do not achieve its fundamental goal - to serve our clients well. That will be the true test. It will not be an administrative test of procedures per se, how carefully crafted the legislation may be or the structure of other support mechanisms. The true test of the success of this legislation will be in how it serves our clients. I have great confidence that it will have positive support over a long period.

There has been concern in relation to the inclusion of the Community Services Commission in schedule 2 of the Public Sector Management Act. It is my understanding that the community sector wants an assurance that the Government will set up the Community Services Commission under the Public Sector Management Act. On behalf of myself and my colleague the Minister for Community Services and Assistant Minister for Health I say that but for a procedural technicality, the inclusion of the commission as an administrative office would have been achieved by one of the Government amendments moved in Committee in the Legislative Assembly. It was always the Government's intention to give the commission the independence from the Department of Community Services which the establishment of a separate administrative office would achieve.

The community sector has the Government's assurance that this action will be taken as soon as the Government has settled with that sector the implementation processes to get this important legislation into operation. I have said that so there is no misunderstanding about the assurances which have been given. In conclusion, I thank all the people from the department and the community sector who have spent so much time on this legislation and placed such great hopes in it. I commend the bill to the House.

Motion agreed to.

Bill read a second time.
In Committee

Part 8

The Hon. R. D. DYER [9.53]: During the second reading debate I asked the Minister a question or commented about the Community Services Review Council. I dealt with the constitution of the council, as set out in clause 107, the functions of the council, in clause 108, and in particular the meetings of the review council, in clause 109. I made the point that, on my reading of the bill, the council would have no requirement to meet at any particular interval. If I am correct in that regard, could the Minister advise me about the Government's intention? During the second reading debate I said, for example, that I would not
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like to think that the council would meet at intervals greater than say each quarter. Could the Minister furnish the Committee with any information on that particular aspect?

The Hon. VIRGINIA CHADWICK (Minister for Education and Youth Affairs, and Minister for Employment and Training) [9.55]: Clause 109(1), at page 42 of the bill, provides that as soon as practicable after the review council is first constituted, the chairperson is to convene a meeting at which the council is to decide the procedure for calling a meeting and the quorum and procedure of a meeting of the council. That clause makes clear that a meeting is convened at which the review council determines the procedures for calling a meeting and, presumably, the regularity of meetings thereafter. Clause 109(1) imposes a specific duty of deciding the procedure for calling a meeting of the review council. I should have thought that duty would include making decisions about the frequency, nature or length of such meetings. After reading the provisions in the bill about membership of the review council, I could not imagine its members not taking seriously their responsibility to determine the appropriate nature, length, and regularity or frequency of meetings throughout the year. I understand the concern and interest of the Hon. R. D. Dyer, but the bill gives members of the council a charter to meet, as soon as practicable after the council is first constituted, to decide their own procedures including, I should have thought, the regularity of meetings. I have full confidence that the concern underlying the honourable member's question will be addressed.

Part agreed to.

Bill reported from Committee without amendment and passed through remaining stages.