Page 2625 - Week 07 - Thursday, 2 August 2018
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This bill also creates offences relating to the unauthorised use of restrictive practices. These will take effect from 1 July 2019. Delaying the operation of the offence provisions will ensure that the senior practitioner has time to engage, educate and work through implementation issues with service providers and people affected by the legislation.
I understand there may be some apprehension among service providers about the strict liability offence under section 47 of the bill. Section 47 holds that a provider commits an offence if it fails to comply with a direction of the senior practitioner. Being a strict liability offence, there is no requirement to prove an element of fault such as intention or recklessness on the part of a provider who fails to comply with the direction.
I have met with National Disability Services about this. The government has been very mindful of how section 47 may limit section 22 of the ACT Human Rights Act, which holds that “everyone charged with a criminal offence has the right to be presumed innocent until proved guilty according to the law”.
In drafting this bill the Community Services Directorate consulted closely with the Parliamentary Counsel’s Office, the ACT Human Rights Commission and the justice and community safety scrutiny teams. The potential impact of the strict liability offence was balanced with the need to facilitate timely enforcement of directions issued by the senior practitioner and protect the rights of vulnerable people who may be subject to restrictive practices.
I am satisfied that the risk for this provision to have unintended adverse consequences for providers and staff, who fear criminal prosecution, will be mitigated by the educative functions and powers of the senior practitioner enshrined in the bill. It is important to note that the bill describes the role of the senior practitioner in providing education on and improving sector awareness of the reduction and elimination of restrictive practices. The opportunity for meaningful engagement with the sector is further supported by the functions of the senior practitioner specified at section 26, which include producing and disseminating policies, standards and guidelines to promote best practice and build sector capacity.
Under section 39 of the bill the senior practitioner may issue a direction following an investigation of an issue if they are satisfied on reasonable grounds that action needs to be taken in relation to the provider. In conducting an investigation the senior practitioner would work closely with a provider to clarify any issues, convey the findings of their investigation and provide advice on the action that is sought by the direction.
I am therefore satisfied that there will be ample engagement and guidance given to providers about what is required to comply with a direction and avoid unwarranted penalties under section 47. There are many strict liability offences already present in ACT legislation, including in the Work Health and Safety Act 2011, which the same providers affected by this bill are aware of and comply with.
I reiterate that the purpose of the bill is to protect the human rights of the most vulnerable members of our community. Again, I thank members for their interest and
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