2013

LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY

OFFICIAL VISITOR AMENDMENT BILL 2013

	
	
	EXPLANATORY STATEMENT

Presented by the
Attorney-General
Mr Simon Corbell MLA

OFFICIAL VISITOR AMENDMENT BILL 2013

Overview of Bill

The Official Visitor Amendment Bill 2013 makes technical and other amendments to the Official Visitor Act 2012 (the Act) to ensure that the scheme operates effectively and consistently with the ACT’s human rights framework.

The Act was passed with some technical errors which were acknowledged in the Legislative Assembly at the time.  In addition to correcting the identified errors, this bill makes additional amendments to support and maintain the objectives of the scheme.

Human rights assessment
The Official Visitor Amendment Bill 2013 positively engages rights protected under the Human Rights Act 2004 (HRA).  The right to recognition and equality before the law is expressed under section 8 of the HRA.  The right to privacy and reputation is expressed under section 12 of the HRA.

Section 8 provides that 
1)	Everyone has the right to recognition as a person before the law.
2)	Everyone has the right to enjoy his or her human rights without distinction or discrimination of any kind.
3)	Everyone is equal before the law and is entitled to the equal protection of the law without discrimination.  In particular, everyone has the right to equal and effective protection against discrimination on any ground.

Section 12 provides that
Everyone has the right —
(a)	not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and
(b)	not to have his or her reputation unlawfully attacked.

Section 8 incorporates general ‘equality rights’; the rule of non-discrimination and principles of equality before the law, and equal protection of the law as defined by articles 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR). 
Recognition before the law means that the law must formally acknowledge people as subjects of the law, human beings with legal rights, not objects of the law.  The right to equal protection of the law prohibits discrimination in law or in practice in any field regulated by public authorities. The recognition of equality before the law is not limited to the rights protected by the HRA.  The right aims to protect people from discrimination of any kind in the enjoyment of rights set out in the HRA.  

The Discrimination Act 1991 provides protection from discrimination for people with certain attributes. In addition to this, Commonwealth legislation provides further protections.  Section 8 of the HRA is a statement of the general principle of non-discrimination and equality of treatment that applies to everyone. The Discrimination Act does not limit section 8, nor does the HRA limit the protections of the Discrimination Act.

Section 12 of the HRA gives effect to article 17 of the ICCPR and protects individuals from unlawful and arbitrary interference with privacy relating to their family, home or correspondence.  

The right to privacy is a fundamental right that may be engaged in a number of ways – physically or geographically, and in terms of information and communication. Privacy is difficult to define, as it is a broad, relative concept, and is not susceptible to exhaustive definition. Privacy means different things to different people. Privacy is connected to personal autonomy and human dignity. It encompasses the idea that individuals should have a ‘private sphere’ free from government intervention and from excessive unsolicited intervention by other individuals.  This right interacts with many other basic rights in the HRA, so it is important to ensure safeguards exist in policy to avoid unintended potentially adverse impacts on privacy. 

The Bill positively engages the right to equality and the right to privacy by broadly omitting the word inspect and substituting the word visit and by specifying that an official visitor must have an entitled person’s consent to inspect any health record or other record relating to an entitled person at the visitable place.  Consent must be written, or, if an entitled person cannot give his or her consent in writing, consent may be expressed orally, if a written record of the consent is made by a person who heard the consent being given.

The word ‘inspect’ incorrectly suggested functions that are not undertaken by official visitors, who visit entitled people to talk with them and to receive and consider complaints.  Use of the term inspect in relation to private homes and other private places was unreasonably intrusive and operated in a discriminatory manner in relation to people with disabilities or mental illness and the people living with them.  

Section 28 of the HRA provides that human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.  An interference that is lawful may still be arbitrary if it is unreasonable or unjustified in all the circumstances of the case.  A complaint about treatment or services is not sufficient justification for a power to enter and inspect a place; entry for the purpose of inspection of a private home on the basis of a complaint about treatment or services that happen to occur in the home would be unreasonable.  A complaint about treatment or services may have no connection to the place where such treatment or service is provided; in such circumstances, entry for the purpose of inspection of that place would be arbitrary.  

These amendments confirm that the official visitor’s focus is on the terms of the entitled person’s complaint, not an inspection of a non-visitable place.  

Frequency of visits
The Bill will remove provisions detailing visit frequency requirements under the Children and Young People Act 2008, the Corrections Management Act 2007 and the Mental Health (Treatment and Care) Act 1994 (MHA).  These and other operational matters are more appropriately determined by disallowable instrument under the visit and complaints guidelines at section 23 of the Act.  

It is proposed that the section 23 visit and complaints guidelines will set out other operational matters.

Section 23 of the Act provides that the Attorney-General may, after consulting the operational Minister for an operational Act, make guidelines, consistent with this part, about the handling of complaints and the referral of complaints to investigative entities, by an official visitor for the operational Act.  The guidelines must include a schedule that sets out each visitable place that an official visitor must inspect and how often the official visitor must inspect the place.  Since the Act already indicates that the guidelines will provide for these operational details, these amendments maintain consistency with the structure of the Act.

This approach allows the Act to express core standards and principles for all official visitor schemes and provide for necessary and appropriate operational variation (a key stakeholder objective), in the guidelines, to allow agencies to tailor their scheme to suit the needs of their particular stakeholder group.  

Defining visitable place
The Bill amends the definitions of visitable place under the Disability Services Act 1991 (DSA), the Housing Assistance Act 2007 (HAA), and the MHA.  The Bill’s amendments to the DSA and HAA ensure that the Act is operable.  The amendments specify that visitable places under the HAA are Territory-funded, and visitable places under the DSA are wholly or partly funded by the Territory.  These amendments ensure the scheme will operate within a clearly-defined environment on commencement and that the new official visitors appointed under these schemes will have the capacity to service the vulnerable people in each environment.  

Amendments to the DSA define visitable place as disability accommodation for respite or long-term residential purposes, wholly or partly funded by the Territory.  The definition of visitable place under the DSA will include residential aged care facilities that accommodate people with a disability who are less than 65 years old.  This definition will capture 150 people with a disability in approximately 64 supported accommodation and respite services provided by Disability ACT, 300 people with disability living in approximately 50 other locations and 75 people with disability living in residential aged care. 

Discussions with stakeholders have emphasised the need to achieve balance between the policy objectives of the official visitor schemes and operational feasibility.   While the amended definitions narrow the scope of visitable places and consequently reduce the number of places which will be defined as routinely visitable, the Act will provide other protections for entitled people, including a specific complaints mechanism under section 8B of the DSA and the general complaints resolution functions listed under section 14 of the Act.  

The Act already provides for a DSA official visitor to visit another place to investigate a complaint from an entitled person about a disability service provided at that place.

The Bill amends the MHA to specify that ‘a place in a correctional centre where a detainee may receive treatment or care for mental dysfunction or mental illness’ is a visitable place for the period in which treatment or care is given to a detainee.  The Bill requires a doctor appointed under section 21 of the Corrections Management Act 2007 to notify a MHA official visitor as soon as practicable after the detainee starts to receive treatment, but not later than 24 hours after the detainee starts receiving treatment or care in the place.  This amendment strengthens the operational effectiveness of the Act and is consistent with the notice provision under section 21(2) of the Act.

The Bill also provides more broadly for collaboration between official visitors across more than one operational area.  Section 18(1) of the Act provides:
	‘If asked by an official visitor (the responsible official visitor) for an operational Act, an official visitor for another operational Act may assist the responsible official visitor in the exercise of the responsible official visitor’s functions.’ 

The example under this section provides,
	‘A young person with disability is detained in a youth correctional facility. An official visitor for the correctional facility asks an official visitor appointed under the Disability Services Act 1991 to accompany her on a visit to the facility.’

The new provision and example emphasises the intention that official visitors under the new scheme will operate collaboratively.  

Official Visitors Board (the Board)
The Board responds to concerns about the absence of collegiate and professional support and guidance for official visitors.  The Board is proposed as a representative panel to arrange training for official visitors, facilitate interactions between official visitors, arrange for the provision of administrative assistance to official visitors and exercise any other function given to it under the Act or another Territory law.  

The Board would facilitate administrative separation from operational agencies.  Its composition would help to dispel notions of direction or control of official visitors by any single stakeholder, and would operate to reduce the likelihood of official visitors being directed or influenced by any single board member.  It is not intended that the Board will have any role in determining the functions of official visitors.  

It is proposed that the Human Rights Commission will be represented by a Commissioner as determined by the Human Rights Commission.  This will allow flexibility and continuity in case there are issues around conflicts of interest in matters being considered by the Board, or where a Commissioner is unable to attend a meeting.

The Board model proposed in the Bill meets concerns around independence and support, while still allowing official visitors to be largely self-determining.  The Board represents the Government’s commitment to providing the broadest possible professional support to official visitors and will assist in reducing unnecessary overlap in the functions of official visitors and other Government bodies responsible for protecting vulnerable people.

Outline of Provisions
Part 1 - Preliminary
Clause 1 - 	Name of Act
This clause names the Act as the Official Visitor Amendment Act 2013.

Clause 2 - 	Commencement
This clause provides for commencement of the Act on the commencement of the Official Visitor Act 2012, section 3.

Clause 3 - 	Legislation amended
The Act amends the Official Visitor Act 2012 but also amends the following legislation:
Children and Young People Act 2008
Corrections Management Act 2007
Disability Services Act 1991
Housing Assistance Act 2007
Mental Health (Treatment and Care) Act 1994

Clause 4 - 	Section 2
This clause substitutes the commencement date for the Act.  It provides that the Act commences on 1 September 2013.

Clause 5 – Ending appointment – Section 12(1)(b)(i)
This clause is a minor technical amendment to section 12(1)(b)(i) to refer to the visit and complaint guidelines at section 23.

Clause 6 – Section 15 heading
Clause 6 substitutes the heading for section 15.  The amended heading reads, ‘Official visitor may enter visitable place’.   This amendment reflects the substitution of references to inspection in the Act.  Official visitors do not inspect places.  

Clause 7 – New section 15(1A)
Clause 7 provides that an official visitor may inspect any health or other record relating to an entitled person at a visitable place if the official visitor has that person’s consent.  Clause 7 requires written consent, or oral consent if a written record of the consent is made by the person who heard the consent being given.

The note to this provision lists examples of records that an official visitor may inspect at a visitable place.  These include dietary plans, behavioural plans, any record of the use of seclusion or chemical restraint, day plans or lists of rostered carers.

This information is relevant to the conditions of accommodation at visitable places, and the care and services provided to entitled people.    

Clause 8 – Official visitor must report non-compliant visitable places – New section 16(2)(b)(iii)
Clause 8 inserts the official visitors board into the list at 16(2)(b).  Under this section, the official visitor must report non-compliant visitable places to the operational Minister but may also report to 
•	the relevant director-general; 
•	the public advocate; and 
•	the official visitors board.

Clause 9 – Reporting of complaints – New section 17(2)(c)
Clause 9 inserts the official visitors board into the list at 17(2)(c).  Under this section, the official visitor must report to the operational Minister as soon as practicable after the end of each quarter a summary of
•	the number and kinds of complaints received by the official visitor; and
•	the action taken on the complaints received; and
•	the number and kinds of matters referred by an official visitor to an investigative entity.
Under this section, the official visitor may give a copy of this report to
•	the relevant director-general;
•	the public advocate; and
•	the official visitors board.

Clause 10 – Assistance to official visitors — Section 18(1) and example and note
Clause 10 provides for official visitors to assist each other in the exercise of their functions.  This amendment aims to give broad scope for collaboration between official visitors to provide greater assistance to entitled people in different environments.  The example provides 
‘A young person with disability is detained in a youth correctional facility. An official visitor for the correctional facility asks an official visitor appointed under the Disability Services Act 1991 to accompany her on a visit to the facility.’

The new provision and example emphasises the intention that official visitors under the new scheme will operate collaboratively.  

It is intended that this section would provide for greater collaboration across all official visitor schemes – for example, the official visitor for homelessness could be assisted by or accompanied on a visit by an official visitor for mental health; the official visitor for disabilities could accompany the official visitor for children and young people on a visit to the Bimberi Youth Justice Centre.

Since the official visitors board will oversee the provision of administrative assistance to official visitors, it is no longer necessary to provide specifically for assistance by the public advocate.

Clause 11 – Section 18(4)
Clause 11 omits the definition of health record under section 18(4) as this is included in new section 15(1A).

Clause 12 – Offences – failure to provide assistance etc Section 19(4) definition of person in charge, paragraph (a)
Clause 12 corrects an error at section 19(4) (a).  The provision should read, 
‘if the operating entity is the Territory – the relevant director-general’.

Clause 13 – Part 5 heading
Clause 13 substitutes a new heading for part 5.  The new heading is Visits and complaints.  This heading clarifies the scope of part 5.

Clause 14 – Requests to meet official visitor - Section 21(2)
Clause 14 substitutes the 12-hour notice requirement under section 21(2) with a 24-hour notice requirement.  This substitution provides that an operating entity must ensure than an official visitor is told of a request to meet an official visitor as soon as practical, but not later than 24 hours after the request is made.

This amendment aligns the notice requirement with the ‘as soon as practicable’ provision.  A 12-hour notice period is not a practical requirement and is not linked any requirement for an official visitor to respond.  The official visitor scheme is not intended to respond to immediate, serious concerns.  It is not intended to be a rapid response model.  In cases where there is a real risk to an individual, there are other more appropriate responses, such as contacting the police, the Public Advocate or the Human Rights Commission.  

Clause 15 – Section 23 heading
Clause 15 substitutes the new heading, visit and complaints guidelines, to more clearly explain the intended scope of the guidelines that may be made under section 23.

Clause 16 – Section 23 (1)
Clause 16 is a technical amendment to clarify the scope of the visit and complaint guidelines under section 23.

Clause 17 – New part 5A
Clause 17 inserts a new part to provide for the official visitors board.  The board is proposed as a representative panel to arrange training for official visitors, facilitate interactions between official visitors, arrange for the provision of administrative assistance to official visitors and exercise any other function given to it under the Act or another territory law.  

Part 5A establishes the board and sets out its members and functions.  It provides for board procedure.

Clause 18 – Protection of officials from liability — Section 24(3), definition of official, new paragraph (aa)
Clause 18 includes an official visitors board member in the list of officials protected from civil liability under section 24.

Clause 19 – Offences – use or divulge protected information—Section 25(6), definition of protected information, note
Clause 19 omits the note under section 25(6).  This explanation is included elsewhere in the Act and it is not necessary to include it under this section.

Clause 20 – Consequential amendments—Schedule 1, amendments 1.27 and 1.28
Clause 20 omits consequential amendments 1.27 and 1.28 as these amendments have been made by the Disability Services Amendment Act 2013.

Clause 21 – Dictionary, note 2
Clause 21 inserts public trustee into the list of terms used in the Act that are defined under the Legislation Act, dictionary, part 1.

Clause 22 – Dictionary, new definitions
Clause 22 inserts the new definitions of health record and official visitors board into the dictionary.

Clause 23 – Dictionary, definition of operating entity
Clause 23 omits site and substitutes place in the dictionary.

Clause 24 – Further amendments, mentions of inspect
Clause 24 omits the word inspect and substitutes the word visit throughout the Act.  The Bill broadly substitutes the word ‘inspect’ and ‘inspection’ in the ACT with ‘visit’, to clarify the functions of official visitors.  The word ‘inspect’ incorrectly suggested functions that are not undertaken by official visitors, who visit entitled people to talk with them and to receive and consider complaints.

Schedule 1 – Other amendments

Part 1.1 Children and Young People Act 2008

1.1 – Part 2.3 heading, note
This amendment substitutes the word ‘visiting’ in place of ‘inspecting’, to clarify the functions of official visitors.

1.2 – Section 40
This amendment omits section 40 of the Children and Young People Act 2008. Provision for frequency of visits by official visitors will be made in the visits and complaints guidelines under section 23 of the Act.  This, and other operational matters, will be set out in disallowable instruments.

1.3 – Section 153(1), note
This amendment substitutes the word ‘visit’ in place of ‘inspect’.

1.4 – Dictionary, note 2
This technical amendment omits official visitor from the dictionary, at note 2.  The amendment to include official visitor into the Legislation Act is in the Act, amendment 1.11.  The note reflects that the Legislation Act note definition of the official visitor applies in the Children and Young People Act. This is being removed as a local definition of official visitor is being inserted by clause 1.5.

1.5 – Dictionary, new definition of official visitor
This amendment inserts a local definition of official visitor to the dictionary under the Act.

Part 1.2 – Corrections Management Act 2007

1.6 – Section 57, note
This amendment omits the word ‘inspecting’  and substitutes the word ‘visiting’ to clarify the functions of official visitors.

1.7 – Section 57, note
This amendment omits the sentence, ‘This part also prescribes other matters for the OV Act’ as the matters referred to are in section 58 (inserted by the Act) and are omitted by clause 1.8.

1.8 – Section 58
This amendment omits section 58 of the Corrections Management Act 2007.  Consistent with the removal of section 40 of the Children and Young People Act 2008, provision for frequency of visits by official visitors will be made in the visits and complaints guidelines under section 23 of the Official Visitors Act.  This, and other operational matters, will be set out in disallowable instruments.

1.9 – Dictionary, note 2
This technical amendment omits official visitor from the dictionary, at note 2.  The amendment to include official visitor in the Legislation Act note is in the Act, amendment 1.17.  The note reflects that the Legislation Act definition of the official visitor applies in the Corrections Management Act. This is being removed as a local definition of official visitor is being inserted by clause 1.10.

1.10 – Dictionary, new definition of official visitor
This amendment adds a local definition of official visitor to the dictionary under the Act.

Part 1.3 – Disability Services Act 1991

1.11- Section 6(2)(c) and note
This amendment substitutes the previous new section 6(2)(c).  It is consequential to an amendment in the Disability Services Amendment Act 2013 and is required because of the sequencing of amendments to the Disability Services Act.

1.12 – Part 3 heading, note
This amendment omits the word ‘inspecting’ and substitutes the word ‘visiting’ to clarify the functions of official visitors.

1.13 – Section 8A
This amendment broadens the definition of entitled person and more clearly defines a visitable place under the Disability Services Act 1991.  An entitled person is a person with a disability.  A visitable place means disability accommodation for respite or long-term residential purposes, wholly or partly funded by the Territory and includes a residential aged care facility that accommodates a person with disability who is less than 65 years old.  

A local definition of official visitor is included in this section.

This amendment aims to achieve balance between the policy objectives of the official visitor schemes and operational feasibility. While the amended definition narrows the scope of visitable places and consequently reduces the number of places which will be defined as routinely visitable, the ACT will provide other protections for entitled people, including a specific complaints mechanism under section 8B of the DSA and the general complaints resolution functions listed under section 14 of the Act.

1.14 – Section 8B(1)
This amendment substitutes the words, ‘under this Act’ with ‘wholly or partly by the Territory’ to maintain clarity and consistency.

1.15 – Section 8B(1), new example
This amendment adds a private home as an example of a place other than a visitable place to express the intended broad scope of places the official visitor may visit under section 8B.

1.16 – Section 8B(2) and (3)
This amendment omits inspect and substitutes this with visit to maintain consistency with the rest of the Bill.

1.17 – Section 8C
This amendment substitutes references to ‘inspect’ and ‘inspection’ with the word ‘visit’.

1.18 – Section 8E, note 2
This amendment omits the reference to section 11 and substitutes this with the reference to section 11A.

1.19 – New section 11A
This amendment is consequential to amendments made by the Disability Services Amendment Act 2013.

1.20 – Dictionary, note 2
This technical amendment omits official visitor from the dictionary, at note 2.  The amendment to include official visitor into the Legislation Act notes is in the Act, amendment 1.29.  The note reflects that the Legislation Act definition of the official visitor applies in the DSA. This is being removed as a local definition of official visitor is being inserted by clause 1.24.

1.21 – Dictionary, new definition of official visitor
This is a technical amendment to achieve consistency in the location of definitions.   This amendment inserts a reference to section 8A.

Part 1.4 – Housing Assistance Act 2007

1.22 – Part 4B heading, note
This amendment substitutes visiting for the previous reference to inspecting.

1.23 – Section 25V heading
This amendment substitutes the heading to provide for the definitions of official visitor, entitled person and visitable place.

1.24 – Section 25V, definition of visitable place
This amendment adds a local definition of official visitor to section 25V and amends the definition of visitable place.  Visitable place means multiple occupancy supported accommodation for people who are homeless or at risk of homelessness, provided by an entity funded by the Territory.

The amended definition excludes long term family homes and specifies that visitable places are those provided by an entity funded by the Territory.  

1.25 – Section 25W
This amendment omits ‘inspection’ and substitutes ‘visit’.

1.26 - Section 25W
This amendment omits ‘inspect’ and substitutes ‘visit’.

1.27 – Section 25W(2)(b)
This amendment omits ‘agrees’ and substitutes ‘consents’, to maintain consistency with other provisions.

1.28 – Section 25W(3)
This amendment omits the definition of operating entity and substitutes a local definition clearly applicable to the Housing Assistance Act.

1.29 – Dictionary, note 2
This technical amendment omits official visitor from the dictionary, at note 2.  The amendment to include official visitor into the Legislation Act notes is in the Act, amendment 1.35.  The note reflects that the Legislation Act definition of the official visitor applies in the Housing Assistance Act. This is being removed as a local definition of official visitor is being inserted under section 25V.

1.30 – Dictionary, new definition of official visitor
This amendment inserts a reference to the local definition of official visitor under section 25V.

Part 1.4 – Mental Health (Treatment and Care) Act 1994

1.31 – Part 11 heading, note
This amendment omits ‘inspecting’ and substitutes ‘visiting’.

1.32 – Section 121 heading
This amendment omits ‘inspect’ and substitutes ‘visit’.

1.33 – Section 121, definition of visitable place
This amendment inserts a local definition of official visitor and substitutes the definition of visitable place.  A visitable place means – 
(a)	a mental health facility; or
(b)	a long-term residential accommodation facility or respite facility at which a person receiving treatment or care for mental dysfunction or a mental illness may stay; or
(c)	a place in a correctional centre where a detainee is receiving treatment or care for mental dysfunction or a mental illness for the period in which the treatment or care is given to the detainee.

This amendment specifies that subsection (c) will be a visitable place under the Mental Health (Treatment and Care) Act 1994 for the period in which the detainee is receiving treatment or care for mental dysfunction or a mental illness.

The note to this provision states that a visitable place mentioned in par (c) is also a visitable place for an official visitor under the Corrections Management Act 2007.

1.34 – Section 122B
This amendment substitutes section 122B with a requirement for a doctor for the correctional centre to give written notice to an official visitor under the Mental Health (Treatment and Care) Act that a detainee is receiving treatment or care for mental dysfunction or a mental illness in the visitable place as soon as practicable, but not later than 24 hours after the detainees starts receiving treatment or care in the place.

This section also includes a definition of doctor for a correctional centre.  Doctor, for a correctional centre, means the doctor appointed under the Corrections Management Act 2007, section 21 (1) for the centre.

Provision for frequency of visits by official visitors will be made in the visits and complaints guidelines under section 23 of the Act.  This, and other operational matters, will be set out in disallowable instruments.

1.35 – Section 122C(1)(a)
This amendment inserts ‘wholly or partly’ into section 122C(1)(a) to specify the intended object of this provision.  An entitled person may make a complaint to an official visitor about treatment or care for mental illness or a mental dysfunction that is wholly or partly funded by the Territory.  This ensures an operational link between oversight and responsibility.

1.36 – Section 122C(2) and (3)
This amendment specifies that the official visitor will visit a place, not inspect that place.  The objective of a visit is to speak to an entitled person in order to investigate a complaint.  

1.37 – Dictionary, note 2
This technical amendment omits official visitor from the dictionary, at note 2.  The note reflects that the Legislation Act definition of the official visitor applies in the Housing Assistance Act 2007. This is being removed as a local definition of official visitor is being inserted under section 121.

1.38 – Dictionary, new definition of official visitor
This amendment inserts a reference to the local definition of official visitor under section 121.