This session was part of the Advocacy Sector Conversations Forum series held online on 13 October 2020.
Overview
The Victorian Disability Worker Commission forms part of the Victorian Government’s “zero tolerance” approach to abuse of people with disability. It opened for business, launched on 1 July 2020. The role of the Commission is to ensure that people with disability receive greater safety and quality services, workers have the necessary skills, experience and qualifications and stop people who pose a serious risk of harm from providing disability services.
Dan Stubbs is the Victorian Disability Worker Commissioner and he joins us to provide information about the new regulations introduced for disability workers. This includes new compliance obligations for workers and service providers under the new Disability Service Safeguards Code of Conduct , mandatory notifications and notifiable conduct, along with a new complaints service for sector audiences.
Links to resources mentioned in this presentation can be found at the bottom of this post.
Audio & transcript
MELISSA HALE:
Good morning, everyone. Welcome to the first session of the October 2020 Advocacy Sector Conversation series. My name is Melissa Hale. And I am the coordinator of the Disability Advocacy Resource Unit. Before I begin, I would like to acknowledge the traditional owners of the land on which we meet and pay my respect to their Elders past, present and emerging.
Once again, we are delivering these forums online in this new format due to the new normal that we find ourselves in due to COVID‑19. We are pleased to be able to still bring in the advocacy sector conversations to you safely and online. Like many of you, we are seeing some unexpected benefits in this type of program delivery. And we will be coming back to you all sometime soon, to get your feedback on what you like and dislike about this format, see if we can seek to continually improve and provide the best experience, we can. So please let us know what you think.
You might note we have Auslan interpreters today and we also have captioning that you can access. If you go to the chat box, you will see a link that you can click to access the closed captioning in a separate browser.
We encourage your active participation today. So please type your questions in the Q&A box at the end of this session I will be facilitating a Q&A session with our presenters.
I hope you have all settled in comfortably because we have a fantastic series this week. So now to the first session.
The Victorian Disability Worker Commission forms a part of the Victorian government zero tolerance approach to the abuse of people with disability. It opened for business launched on 1 July 2020. The role of the Commission is to ensure that people with disability receive greater safety; quality services, workers have the necessary skills, experience, and qualifications, and stop people who pose a serious risk of harm from providing disability services.
Dan Stubbs is the Victorian Disability Worker Commissioner. He joins us today to provide information about the new regulations introduced to disability workers. This includes new compliance obligations for workers and service providers under the new disability services safeguards Code of Conduct, mandatory notifications and notifiable conduct along with a new compliance conduct as well as new complaints service for sector audiences. Please welcome Commissioner Dan Stubbs.
DAN STUBBS:
Thanks, Melissa. And thank you DARU. It’s great to sort of be here or be wherever everyone is talking to the disability advocacy sector. This sector, I believe, is such an important sector, and full of people making such an important difference that will help do what bodies like mine need to do, you’re in many ways our eyes and ears. I’m so glad to have this opportunity to talk to the sector.
I too would just like to acknowledge that wherever we meet we are on traditional ‑ we are on the lands of the traditional owners. I recognise those traditional owners, past and present. And I also acknowledge anyone from any other region who is from Aboriginal background logged in today.
So I’m here, as Melissa said, to talk about the new Victorian Disability Worker Commission. I will just refer to it as the Commission. First of all, about me, so I’ve been in this role since about November last year so almost a year. Setting up the Commission ‑ it’s a brand new Commission, so I’ve been setting it up since then in preparation for 1 July.
I am a person with a disability. I’m blind. And so it’s ‑ for all of us this new way of working has its own challenges but talking down a camera and, you know, all the technology that requires is its own challenge, and meanwhile you’re going to be seeing some slides today. And I always think that, you know, when I do slides I feel like it’s a bit of an inclusive measure for the sighted people. I know those of you who are sighted you need something to look at while I talk, and so I’ve done some slides just so you’ve got something to look at, some words to look at while I talk. That’s my little approach to inclusion for sighted people in the virtual world today.
My background is that I’ve been in community law. I’ve been a community lawyer in Sydney and Melbourne, more recently. I have been in the sort of consumer advocacy sector for most of my adult life, really, and so coming to this job I feel like is sort of bringing together a whole range of my skills and experience, and it’s a great honor still to be in this job.
The change that this Commission brings to the sector is significant. It creates new oversight mechanisms for the whole disability services sector in Victoria. It particularly focuses on workers, which I will talk to you about, but it also has implications for service providers. And I hope has big implications for people with disabilities, as well as their friends, families and allies.
The current context, of course, is important to recognise. There’s a Royal Commission going on. This week we’re seeing important questions being asked in the Royal Commission about how different sorts of workers do their work, in this week’s case it’s in education and things like restraints and other challenging issues that many of you have been aware of for a long time.
So it’s really, I think, now more than ever, we’re recognising that greater safeguards is needed to protect, respect and empower people with disabilities to ensure their health, safety and their rights.
Today I’m going to talk about the background to this Commission, how it came about, its role, the key changes that it implements, who is impacted by our work, the Code of Conduct, our complaints mechanism, mandatory notifications. The powers of me as Commissioner, things like prohibition orders, and also what we sometimes call the co‑regulatory environment or basically other complaints bodies in the disability sector and how we work with them.
At the end, as Melissa said, we will have Q&A. If we don’t get to all the answers I will try and get back to people with answers to questions that we don’t get to. And we’ll also be providing to DARU facts sheets related to the things I will be talking about around complaints, notifications, Code of Conduct, just so you will have some reference material.
So with these slides and the other facts sheets, there’s no need to write anything down. Please just listen and take it in. And put your questions into the chat as you think of them.
And I would really love it if people sort of shared the slide pack and other information you get from this with your colleagues who you think might get some value out of this too, because I really want to encourage people to be aware of what the Commission’s doing and how we work. And if people are interested I’m very keen for people to register to receive our e‑news updates which you can do on our website. I will give links to that at the end.
So back in 2016, there was a Parliamentary Inquiry that recommended the creation of this Commission. That inquiry found some pretty horrific and very confronting abuse and neglect of people with disabilities.
The Commission found that, of course, the vast majority of workers in this sector are doing their best and working at a high standard, and in many ways doing an outstanding job, particularly given all the constraints they work under. But a significant minority, a significant enough minority to come up with this kind of Commission were found to be doing the wrong thing, either through abuse or neglect.
I think still resonant in all of our minds is what happened to Anne Maree Smith in New South Wales and how she died earlier this year. And if anyone thinks that that was an isolated case just in South Australia, they would be sadly mistaken. And all you have to do is read the submissions and the materials of the Parliamentary Inquiry, and I think we’re hearing more cases that have happened around the country like that in the Royal Commission as well.
So on 1 July this year, the powers of this Commission commenced. And it covers ‑ one of the key things about this Commission is it covers all disability workers in Victoria. It doesn’t matter how you’re funded, it doesn’t matter what level of government, doesn’t matter if you’re part of an NGO or inside government, all disability workers are covered.
And obviously, NDIS is the biggest funder in town but there are other funders such as Transport Accident Commission. Sometimes people can pay for disability services out of their own pocket and that’s covered and still a significant chunk of disability services are still paid for by charitable donations. So all those funding sources, all those levels of government are all covered.
The code of conduct obviously came in on 1 July which I will talk to in more detail later but that was ‑ that’s a regulation brought in by the Minister in about May after consultation that we did. Some of you would have been involved in that. And a range of other obligations for workers and providers.
There’s also a registration scheme, which commences in the middle of next year. That’s been deferred from this year due to the pandemic and all the things that are happening this year. The registration board decided that it wasn’t a good time to bring in such a new scheme. And I would be really happy to come back and talk to you about that next year.
Public registers are also part of the scheme. So basically, if -one of my powers is to ban a worker permanently or temporarily from the sector, and we will publish that on our website quite prominently.
So just to reiterate there are four key elements. There’s the Code of Conduct, there’s notifications ‑ I think we might be on a new slide, sorry, John. Code of conduct, there’s a notification requirement for workers and services, there’s a complaints service where people with disabilities and anyone can complain, and there’s a register of banned disability workers. I haven’t banned anybody as yet so that register is currently empty.
I think it’s important to recognise that those four changes reflect government and community expectations to create stronger safeguards and oversight, to protect people with disabilities and enforce obligations on disability services and workers. And also to gradually improve the quality of services provided for disability ‑ for people with disability across Victoria.
Excuse me, John. My notes have jumped around a bit. Bear with me, people. I wish I could blame John who is handling the slides, but I can’t, actually. So as I said, all disability workers are covered ‑ I’m on slide 5 now.
All disability workers are covered. And, therefore, all people with disabilities who receive services are protected by this Commission and what it does. Anyone can complain. And, really, this Commission provides certainty for people with disabilities so they can expect the same standard of work no matter where the funding comes from or which service provides their ‑ which organisation provides their service.
It’s probably important to just make sure that we understand what the definition in our Act ‑ the Disability Services Act of a disability worker is. Obviously, it’s someone who provides a disability service to a person with disability. And it can be either a worker providing direct service, or their supervisor, their direct supervisor.
The types of services covered need to be more than incidental services, more than something in passing that might be provided to anyone regardless of disability. It’s supporting the person with respect to their limitations, and I’m sorry but some of the language in our Act does use the language of “deficit” and “disability” which I’m not comfortable using but that’s the language of the legislation that governs what I do. So I’m going to use some of that language and just apologise ahead of time.
And so it supports ‑ the services are about supporting people regarding their limitations with respect to a range of things including communications, their participation, economic or social, their social interaction, their learning, mobility, obviously, self‑care or self‑management.
And a person with a disability obviously is someone who receives a disability service, but that’s all ‑ person with disability is also defined in the Act. It refers to someone who their disability or limitation is something that would be regarded to be permanent or can be expected to be permanent. Can be expected to be receiving life‑long support, substantial ‑ with respect to substantial reduced function, and also includes people with mental illness and people with developmental delays.
So that’s important to capture the people with mental illness and their ‑ so peer workers in the mental health sector and that kind of thing are covered by the work this Commission does.
So just to give a few examples about disability work or what’s not disability work, I’m going to go to education just because that’s what we’re seeing in the Royal Commission this week.
So a teacher or teacher’s aide providing, say, education support where there might be one child with a disability in the class but none of their ‑ none of that teacher’s work is particularly about that child with a disability, then they wouldn’t be a disability worker. But a teacher or a teacher’s aide or education support officer ‑ first of all let me talk about education support officer who is specifically there to support a child with a disability. Then they are a disability worker and they are regulated by this Commission.
Similarly, a teacher who might be in a specialist school who is only teaching children with disabilities is a disability worker. Or a teacher who is in a mainstream school but providing maybe a specialist class for children with disabilities in that school. Then they are, whilst they’re teaching that class for those students with disabilities, they are a disability worker.
There’s a range of other examples. It’s important to realise that advocacy workers are also disability workers. And I might come back to that because that has important ramifications for what ‑ your ability to notify the Commission about certain conduct of a disability worker.
The Disability Services Safeguards Act introduces a Code of Conduct. This Code of Conduct came out of, as I said, important consultation that was run at the end of last year and early this year. And the Minister signed off ‑ the Minister and Cabinet signed off on that Code of Conduct earlier this year. The Code of Conduct ‑ it was agreed by the Minister and supported by the sector ‑ that it would be the same Code of Conduct that’s used by NDIS.
So I’m just going to quickly run through it with people because it’s important to realise that it’s a very good Code of Conduct. It speaks to human rights, and its important principles. It’s not everything we operate against. I will talk about other important things but it’s an important aspect of how we ‑ in some ways our yardstick that we measure disability service against.
So seven elements. Workers must respect the rights for people with disabilities to their freedom of expression, self‑determination and decision‑making. Workers must respect privacy of people with disabilities. They must provide services in a safe and competent manner with care and skill. The fourth one is they must provide services with integrity and honesty. They must have regard to the quality and safety of the supports and services they provide. They must ensure against violence and exploitation of people with disabilities. And ensure against neglect and abuse. And finally, disability workers must prevent sexual misconduct with people with disabilities.
So that’s an important part of how we consider ‑ and when we look at a complaint or notification that comes in, those seven elements are fairly key to what we look at.
So complaints. So, as I said, this Commission has a complaints service. You can complain about, as I said, any Victorian disability worker regardless of where their funding comes from.
We can take a complaint from anyone. Obviously, we can take that complaint from people with disabilities. We will support people with disabilities to lodge a complaint if they contact us. There’s an online form and also our phone number, which I’ve got in my slides in a few places and it, will be on the slide at the end. So complaints so far have been varied from family members and people with disabilities, and we expect that to continue.
The Commission is a bit different because first of all, it covers all workers in Victoria, but it only covers workers and their direct supervisors. It doesn’t cover organisations. And I think that’s important to remember.
We don’t have as strong a role to look into organisations as some others do, which is, I think, maybe a bit of a limitation of our legislation. But we will work within that and we will be looking for opportunities to see systemic issues from different organisations, and, if necessary, we will let organisations know when we’re seeing issues come up to try and improve the overall service sector in different ways. And I think organisations ‑ many organisations, I hope, would want to know when we’re seeing similar issues arise and we need to publish that and keep people on the lookout for that kind of thing before it becomes a problem.
The complaints we can receive will be about the standard of work provided, obviously; the knowledge, skill or judgment of a disability worker; whether they’re providing ‑ whether disability workers are providing a safe service; and whether they are, of course, upholding the Code of Conduct, which I talked about earlier.
We can investigate a complaint. And as a result of those investigations, we can ban workers either for a 12‑week period whilst we undertake an investigation, or permanently from the sector.
And either of those things we would publish on our website and that’s important. And we’re looking at ways of making sure we let the sector know when that happens because we don’t want to be just passively doing that.
Like I said, there’s an online form to make complaints to us on our website. I think the online form link is right there but I also will be given that link at the end.
There’s also a notification scheme. In fact, a mandatory notification scheme. So mandatory notifications are required to be given by either service provider organisations or other disability workers.
So organisations ‑ when I say “organisations”, I mean employers of disability workers. So that might be through some sort of employment contract or other sort of employment relationships that are created.
Important to remember that if a person with disability or their family employs workers directly, they do not have mandatory obligations to report conduct to us. They can report conduct to us as a complaint. So we don’t want to create some mandatory obligation for someone who I think is possibly already vulnerable. We want to support them to make a complaint to us. The mandate is on service provider organisations or employers of workers, and other workers.
Service providers and workers will notify us of conduct that puts people with disabilities at risk. I will go through the elements of that in a minute. As I said, it’s mandatory. It’s on the basis of your reasonable belief of that conduct.
The four types of notifiable conduct are if someone is working as a disability worker whilst intoxicated; if someone is engaging in sexual misconduct; if someone is putting people, particularly people with disabilities, at risk due to an impairment of their own; or if someone is operating outside the realm of accepted professional standards. Those acceptable professional standards would include the Code of Conduct that I went through before.
So this is set out in Section 58 of the Act, the Disability Service Safeguard Act. Notifiable conduct and those elements are set out in that section of our Act. As I said, it’s based on a reasonable belief.
Reasonable belief is a bit of a legal term. You generally need direct knowledge of certain conduct or behaviour, or an incident. It’s more than suspicion. But doesn’t necessarily mean you need to have absolute certainty or evidence of that conduct. You might have directly observed certain conduct or you might have received a report from a very reliable source about certain conduct.
That said if you receive a report from a reliable source, we would want you to encourage that person to notify us if they are another disability worker, that direct knowledge is what we’re after. We’ve already received some notifications where different people have received reliable advice about certain kinds of behaviour of other disability workers putting people’s health and welfare at risk and we’ve been able to investigate that already.
If you’re not sure about whether to make a notification, then contact us. I’m going to put up our phone number and it will be in the information you receive. You’re going to see that phone number quite a lot. And also, there are online notification forms you can submit online. We will often then get back in contact with you.
The challenge, if people want to make a complaint or a notification anonymously, that’s a bit of a challenging thing for us. It’s probably important for me to let you know that. We will try and keep people’s details confidential. But at some point we do have an obligation to contact a worker to let them know that they’ve been notified about, and we’re having to investigate them, and if it’s serious enough we will take steps to, obviously, interview people, seek to gather evidence, we have powers to seize evidence and, obviously, conduct interviews either on location or to bring them into our offices.
So we have a range of powers and there will come a point where we feel we need to use those powers, particularly if the person with disability is at risk. We put a very high value, obviously, as you do, on the health, safety and welfare of people with disabilities. So it’s often ‑ but if someone does make a notification or a complaint and they want to keep it confidential, then we will keep you advised as to what we’re going to do and not let anyone know ‑ or not disclose that confidential advice without letting you know.
So it’s not like we’re ‑ we won’t respect that, but it’s obviously a tricky one. I’m sure you all understand how difficult that can be sometimes. We want to support people to make notifications and complaints but at the same time we often will need to take, action and sometimes that may mean, as a notifier, you are one of the key witnesses to an investigation.
Obviously, there’s ‑ sorry, next slide. Obviously, there are other regulators. We often refer to it as the co‑regulatory environment but what we mean is there are other complaint‑taking bodies in this sector. And there’s a bit of overlap, unfortunately.
Probably the key thing I would let you know, and I’m wanting to let all people with disabilities know, is that we take a no wrong door approach. We’re in regular contact with the other regulators.
The key regulators are obviously the NDIS Commission and we have obligations in our Act to let them know when there has been a worker covered by or funded by the NDIS that we’re investigating. So we’re obliged to let them know and we will work with that Commission.
But we also have arrangements with the Disability Services Commission, which obviously regulates registered organisations that were funded by DHHS, and the Mental Health Complaints Commission, we work with that Commission, the Health Complaints Commission, and other entities like that.
So we’re meeting with them regularly, sharing information as required and as allowed for under our Act, and really, if you want to make a complaint or lodge a notification, please don’t think that you need to work out which forum to go to or which Commission to go to. Come to one of us and we’re talking to each other and we will make sure it gets to the right body in the most efficient way.
I worry about the ‑ you know, there’s a few different commissions which can be confusing and I worry about people unsure who to complain to, and so not complaining at all. I would rather they pick up the phone to us or one of our counterparts and we start progressing the matter, because it’s about making sure that people with disabilities are safe.
And we have a number of important protocols in place whereby we share information appropriately, and we take, obviously, confidential information of complainants and people with disabilities who use services, we take that extremely seriously.
So there’s a range of ‑ I’m just going to quickly talk about how we handle complaints. I’ve got a few minutes. And then we will stop for questions in about five minutes or so. But obviously, disability workers would be contacted in writing by us when the notifications made, and because we need to let them know that there’s been a notification about them and we’re conducting an investigation.
And I think that it’s important to you all as advocates, and I want to remind you that you, as advocates, will observe things, and will become aware of issues in the field, in people’s lives, whether it be in the education setting or in people’s homes or accessing the community, where someone has conducted, you know, been guilty of certain conduct where you should notify us.
Now, sometimes you’re not going to be directly aware of that. That’s going to be just information that you’ve become aware of because maybe someone you’re working with has just said something to you in conversation. Now, we need you to decide, and we’re happy for you to call us to discuss this ‑ we need you to decide if that is sufficient for you to form a reasonable belief of that conduct having happened. And I’m talking about those four kinds of conduct that I referenced earlier which were around abuse, sexual misconduct, or putting people in danger due to their own impairment, or not acting in accordance with acceptable standards like our Code of Conduct.
So if you become aware of that and you have a reasonable belief that that is true, then we really need you to contact us to make that notification. If you’re not sure it’s true, and you’re ‑ you know, you’re kind of concerned and still want to pursue it, then you, as an advocate, have a choice, I think.
My view is that you can then support that person with a disability to come to us and make a complaint about a worker and either way, we’ll investigate the matter.
We have time limits on which we must decide how we’re to deal with a matter and what to do with it, and then we must commence a process. And once we’ve ‑ and then we have choices. We can conduct an investigation and/or we can enter into different forms of conciliation.
Now, we don’t enter into conciliation lightly. I fully recognise that there are significant power issues and power imbalance issues when someone wants to complain about a support worker in their life. I totally understand that. So we have a number of protocols and we’re looking at different ways of conducting conciliation which might be ‑ well, particularly at the moment would be online or on phone, it might be a shuttle conciliation, and that kind of thing.
But if we believe that the person with a disability, the complainant, would be put at risk, then we would choose another method. But the main thing is we have different options, including investigation for us to determine whether the conduct is notifiable conduct.
And then we have a range of options to deal with that worker from counselling them about their behaviour, if maybe the behaviour was inadvertent, or they need training and that kind of thing right through to, as I said, providing an order which bans that worker from the sector permanently which we publish and we let other regulators know about that banning order.
Finally, the simplest way to make a notification is to do that online through our online notification form. Equally, the simplest way to make a complaint is through our online complaints form. Either way, you can indicate that you would like to be contacted in a certain way at a certain time, and we will do that.
We will usually try and be in contact with you to gain some more information. That’s really important to us.
I’m going to leave it there. And I’m keen to sort of hear your questions and understand your ‑ where you’re coming at from this, because I really want to know what your needs are and how we can best support the advocacy sector.
Like I said at the top of this presentation, this sector is so important to us and it’s such a crucial way for us to be supporting people with disabilities to stay safe. So Melissa, I’m hoping there are some questions in the chat. Where are we at?
MELISSA HALE:
Thank you very much, Commissioner. I think my dog is going a bit crazy. Sorry about that.
DAN STUBBS:
I love it.
MELISSA HALE:
I found that really useful; particularly interesting was the distinction of education workers and disability workers, and the advocacy workers are also covered under this scheme. There’s a lot to take in, and that complexity, and I think that really reflects how complex disability support provision is now.
I think before we go to questions, one thing I would like to highlight for everybody is a whole recording of this session, the slides and resources about the scheme will be available later on the DARU website as well as any questions we don’t get to, everything will be available later when it’s all finished.
So we will go to the questions and answers now. So if you have a question you would like to ask, please type it in the Q&A box. I will pop them up on the screen and get through them. If we don’t answer all of them, we will get back to you later. Probably not personally but we will put them on a page where everyone can see them.
So the first question up on the screen says…
QUESTION:
Why is the worker registration voluntary and not mandatory?
DAN STUBBS:
That’s a really good question. That’s part of the legislation that sets up this Commission.
The registration scheme, which, as I said, starts in July next year, was made voluntary mainly because when this ‑ when this Commission was being developed and including when the Parliamentary Inquiry was developing its recommendations about the Commission, but also after that when the government was consulting with the disability sector, people with disabilities advocated against a mandatory registration scheme because it was felt that that would create a reduction in choice for them.
So if you’re a person with disability with a package who wants to employ someone to assist them, who may not be registered but you know that person can do the things you need them to do, then you don’t want to be restricted from the sort of assistance you can receive.
And I know that was an issue also in the development of the NDIS, and how, you know, worker registration in the NDIS wasn’t, in the end, made mandatory. So it’s a bit of a different scheme. And I look forward to coming back and chatting to you about that in the lead‑up to the launch of that scheme. But it’s a bit of a different scheme than other registration schemes, like allied health professionals and nurses and teachers and that kind of thing, where, of course, it is mandatory.
But also those types of services are a bit ‑ I think it’s in some ways a bit narrower. When you think about disability workers, I don’t have to tell all of you the types of work for the different types of people with disabilities, and everything involved, and all the different types of support that might be required at different aspects of people’s life, can be an incredibly varied ‑ it can be an incredibly varied coverage. So that’s been a challenge.
Maybe in the future, the government might decide to change that to a mandatory registration scheme. But at the moment, it’s a voluntary registration scheme.
MELISSA HALE:
Yeah. It goes back to that complexity, how it’s all changing now. Before it was like this is your disability support worker, this is all you can choose but now we’ve got all this choice. Yeah, back to that complexity. Can I have the next question, please? The next question is…
QUESTION:
Will the workers registered on the DWES list be included in the register of banned workers?
DAN STUBBS:
Okay, yeah. So DWES is obviously, as you know, a separate scheme, the disability worker exclusion scheme, as many of you all know is internal to the department and this is quite different to that. It will not be part of our banned list.
My understanding ‑ and the DWES scheme and that list is separate to us. And I’m not aware of who is on it. That’s internal to DHHS. But I believe that will form ‑ continue to form part of worker screening for disability workers and when workers register with us they will ‑ we will use that whole worker screening system that obviously covers criminal record check and DWES check and everything.
So if you’re registered with us, you can show that you’ve passed all that worker screening. But our list will be separate to that list. And it’s a slightly different type of list. So this is a bit of a new start.
I’m not sure when the DWES system will finish. I know it’s still going at the moment. There’s a bit of an overlap between our commencement and that finishing and it’s a bit of an overlap. Not a replacing one for one either.
MELISSA HALE:
So the banned list under this scheme only for the people who have registered under this scheme?
DAN STUBBS:
No. So the banned list is for any disability worker.
MELISSA HALE:
Okay.
DAN STUBBS:
Unregistered or not but the DWES list is something that’s been managed by the Department for some years now that’s separate to us and it is managed quite separately.
MELISSA HALE:
Okay. Great. Can I have the next question, please? This is a long question so it’s a split over into three different screens. So I will start with this one…
QUESTION:
I have had a recent issue that has a serious breach of conduct by a worker happen in March this year. The Commission has suggested that they are unable to help due to the legislation only coming into effect in July 2020. Is the Commission comfortable with these staff continuing to be working in the field waiting for them to reoffend?
DAN STUBBS:
Yeah. I can honestly say I’m deeply uncomfortable. And it’s a ‑ it’s a great challenge for us that there’s a lot of things we can’t do anything about that happened before 1 July.
And although, you know, as someone who understands the law, and as many of you understand the law, you know, it’s not great practice to introduce laws that are retrospective. You know, you need to introduce a law that can be implemented from a certain date. And that’s what’s happened here, but our work, for the most part, can only be implemented, our powers in most respects only start from 1 July. And it’s a source of great discomfort.
So I can honestly say I’m sorry that we’re unable to act on cases of serious misconduct that have happened before 1 July, back in March.
There are some limited cases where we can do things ‑ we can do something against something that happened prior to 1 July. So please give us a call if you’re aware of things that have happened before 1 July. But it’s often the case that we’re not going to be able to act. And, again, I’m not comfortable with that but I can’t change the Act under which we operate.
MELISSA HALE:
Very frustrating, I’m sure.
DAN STUBBS:
Yeah.
MELISA HALE:
Can I have the next question, please…
QUESTION:
Does the Victorian ban mean they are free to work interstate?
DAN STUBBS:
We will ‑ our Victorian ban will be published and we will be advising bodies in other States about our ban, including the NDIS Commission. So it will be up to those other bodies.
The fact that we publish the ban and we advise other regulatory bodies in other States about our ban, we hope that just like we take on board what other bodies find about people interstate, and how we will look at those bans, we expecT, And we’re developing sort of protocols and ways of communicating those bans to ensure that someone just can’t move interstate.
It’s a good question. And we hope not but I can’t guarantee what can be done in another jurisdiction.
MELISSA HALE:
Yeah. The next question, please…
QUESTION:
Does this also apply to volunteers working with people with disability?
DAN STUBBS:
So volunteers who are working for a disability organisation, yes, we cover them. They’re considered as disability workers under our Act.
If someone is a volunteer but doing that more maybe like as a friend or a family member or something like that, we don’t cover people in that circumstance.
So, yes, volunteers who are volunteering as part of disability service providing organisations, we do cover them.
MELISSA HALE:
Yeah. Next one, please…
QUESTION:
Does this scheme address people working with disabilities in any forensic setting, such as corrections, disability justice, residential and non‑residential, prisons, people with disabilities being held in custody?
DAN STUBBS:
Yeah, good question. We do but this scheme does cover those settings, forensic settings and justice, etcetera. And ‑ at the moment we’re looking into making sure we’re communicating the fact that we exist to, I guess, those authorities.
So, yes, we do cover those settings and so, like I said early on, it doesn’t matter if the disability worker is working with people with disabilities and they’re employed by government or in the NGO sector or in a range of other sectors or the private sector. We cover that if it is working with people with disabilities so the short answer is yes.
MELISSA HALE:
Great. Next question. Okay. Long question from Julie Phillips from DDLS.
JULIE PHILLIPS:
Hi, Dan. Statutory authorities like Victorian Commission for Children and Young People will not release outcomes of investigation to complainants or fact check while investigating with complainant. In your organisation if someone abused a person before your organisation was set up but is still working, would you investigate?
DAN STUBBS:
Hi, Julie. I can always rely on you to ask the hard question.
So it’s tricky for us. So before ‑ like I said, before 1 July if we’re told about something, we may be ‑ I believe we may be constrained from letting anyone know because we don’t have any power to do anything ‑ so we don’t have any power to do anything in relation to activities before 1 July.
I’m uncomfortable telling you that but it’s the case with a number of issues, not everything.
We obviously do publish the outcomes of investigations with respect to orders we make and that kind of thing. So ‑ and, obviously, those orders are appealable through VCAT and higher courts, obviously. So all that could be made completely public in a court setting.
So I might come back to you as to the sorts of other information we would publish out of an investigation, though. I think it’s a good point and something which I ‑ because we’re still trying to work out all the information we can provide, we haven’t finalised that yet. So I’m going to come back to you about that. Thanks for the question.
MELISSA HALE:
Alright. So we’ve got our last question now…
QUESTION:
Are disability workers health workers, during border closures disability workers were not able to get permits.
DAN STUBBS:
So we’re talking about disability workers ‑ I see, during border closures, to cross borders, I assume that’s what people mean.
MELISSA HALE:
It’s about the COVID border closures.
DAN STUBBS:
It was my understanding and I certainly spent a lot of time talking to government ‑ various government bodies about this, that disability workers were essential workers, and under, you know, COVID at the moment disability workers are essential. And so you had the right to be ‑ and, you know, the need to be going to work.
And one of the biggest problems that I was seeing, and many of you would have been seeing as well, were the challenges of if ‑ when there were outbreaks in different disability services settings, services having to furlough workers who were close contacts of positive cases and they’re often being insufficient workers in different settings. That was quite challenging.
Amazingly, the disability sector did really well and people with disabilities, I think, were you know faced an incredible challenge in all ‑ in all of the different settings that people lived and worked and studied in. It’s been an incredibly challenging time.
So the answer is disability workers aren’t the same as health workers, but in this case, my understanding is that disability workers were and are essential workers and should get worker permits. I would be concerned to know if that’s not been the case and I’d be taking it up with government.
MELISSA HALE:
Well, we’ve managed to get through all the questions now. So thank you very much for your time, Commissioner. We look forward to working with you to making sure that the Victorian Disability Workers Scheme works in Victoria. So thank you very much.
DAN STUBBS:
Great. Thanks so much, Melissa. And thanks all the DARU membership and everyone, and thanks for all your questions too. I really appreciate it. And I look forward to talking to you again ‑ again this way or maybe one day in the future, you know, in real life in 3D.
Thanks again. Bye for now.
MELISSA HALE:
Thank you. So everybody we’ve come to a close for the first of an exciting series this week. I would like to thank Commissioner Dan Stubbs for his time to deliver his presentation to you today and for the great work that’s happening in this space.
Thank you to the Auslan interpreters and captioning for their ‑ captioners for their hard work today. Thank you to Show Division for bringing this production to you today. Please stay safe, wear your masks, wash your hands and stay at home. See you next time.
Download slideshow presentationDownload fact Sheets (off-site)- Topics:
- Safeguards and workforce quality
- Author:
- DARU
- Date published:
- Tue 13th Oct, 2020