Notice of Grant of Temporary Exemption under section 44(1) of the Age Discrimination Act 2004 (Cth) [2012]
Legal
AUSTRALIAN HUMAN RIGHTS COMMISSION
AGE DISCRIMINATION ACT 2004 (CTH), section 44(1)
NOTICE OF GRANT OF A TEMPORARY EXEMPTION
By this instrument, under section 44(1) of the Age Discrimination Act
2004 (Cth)(ADA), the Australian Human Rights Commission grants an exemption
to the State of New South Wales - Department of Family and Community Services,
Ageing Disability and Home Care (the Applicant) from the operation of sections
28 and 29 of the ADA. The exemption is granted for a period of one year from the
date of this instrument and is granted subject to the conditions outlined
below.
SUMMARY
The Applicant has developed a screening tool to assess the suitability of
persons to live in ‘Residential Centres for Handicapped Persons’.
Residential Centres for Handicapped Persons are commonly known as licensed
boarding houses. An operator of a licensed boarding house must not allow a
person to reside at a licensed boarding house unless the Applicant has assessed
the person as suitable to do so.
The Applicant sought an exemption under section 44 of the ADA so that it may
amend the screening tool to provide that it is a criterion for admission to a
licensed boarding house that a person be 18 years of age or over. The Applicants
sought an exemption from the ADA for a period of five years.
The Commission has granted the exemption because it is persuaded by the
submissions of the Applicant, and of the two agencies that made submissions in
response to the Application, that licensed boarding houses are currently not
suitable places of residence for persons who are under 18 years of age.
The exemption is granted subject to the following conditions.
- Within 14 days of the date of conclusion of the exemption period, the
Applicant must advise the Commission:- of any measures taken by the Applicant during the exemption period to ensure
that operators and proprietors of licensed boarding houses comply with the
requirements of the Youth and Community Services Act 1973 (YACS Act) and
Youth and Community Services Regulation 2010 (YACS Regulations); - of any measures taken by the Applicant during the exemption period to reduce
the level of violence or abuse experienced by residents of licensed boarding
houses;
- of any measures taken by the Applicant during the exemption period to
improve the accommodation and services provided to residents of licensed
boarding houses; and
- of any allegations of abuse, neglect, misconduct or breach of the YACS Act
or YACS Regulations within a licensed boarding house. In relation to each
alleged incident, the Applicant is required to advise the Commission: what was
alleged, in which licensed boarding house the event is alleged to have taken
place and what, if any, action the Applicant took or is taking to address the
alleged breach.
- of any measures taken by the Applicant during the exemption period to ensure
- Applicant must maintain its Prioritisation and Allocations policy which
provides that children at risk of homelessness and some children at risk of harm
are among the Applicant’s ‘highest priorities, requiring an
immediate response.’
BACKGROUND
The Department of Family and Community Services, Ageing Disability and Home
Care (the Department) is a department of the government of New South Wales that
provides services and support to older people, people with a disability, and
their families and carers.
Under the YACS Act, a person may apply to the Minister of Family and
Community Services to become the proprietor of a licensed boarding
house.[1]
A ‘residential centre for handicapped persons’ is defined as any
premise at which two or more ‘handicapped’ persons reside with a
person who is over 18 years of age, who is not a relative of the persons with
disability and who does not have a disability, for payment of a fee or other
consideration.[2] The Minister may
also declare a premise to be a residential centre for handicapped
persons[3] The Applicant advises that
as at September 2011, there were 30 licensed boarding houses in New South Wales
which together house 668
people.[4]
Proprietors of licensed boarding houses provide a range of services to
residents in addition to accommodation. For example, proprietors of licensed
boarding houses provide residents with meals, clothing, linen and toiletries and
may administer medication. The YACS Regulations outline the obligations of
licensees and licensed managers of licensed premises with respect to the
services provided to residents.[5]
To be permitted to reside at a licensed boarding house, a person who:
- has not previously resided at a licensed boarding house;
- has been absent from a licensed boarding house for 3 months or more; or
- has previously been admitted to a psychiatric hospital, an aged care
facility or a rehabilitation centre
must be assessed under a
screening tool as suitable to do
so.[6] The screening tool has been
developed by the Department and is administered by staff of the Department.
Unless a person requires emergency accommodation, a proprietor must not allow a
person to reside in a licensed boarding house unless the potential resident has
been assessed by a staff member of the Department, using the screening tool, as
suitable to do so.[7] Where a person
has been allowed to reside in a licensed boarding house because of an emergency,
steps to arrange an assessment in accordance with the screening tool must be
taken within one business day of the person being permitted to stay at the
premises.[8]
The fact sheet provided with the Application advises that the purpose of the
screening tool is to introduce a ‘gate-keeping’ process to prevent
inappropriate placement of individuals with high support needs in licensed
boarding houses[9]
The Application
The Applicant seeks an exemption from sections 28 and 29 of the ADA so that
it may amend the screening tool to provide that it is a criterion for admission
to a licensed boarding house that a potential resident is 18 years old or
over.
The Applicant states that licensed boarding houses are not suitable places
for persons under 18 years of age to reside because the residents of licensed
boarding houses are “an extremely vulnerable and disadvantaged group of
people” and that “many have physical and intellectual disabilities,
with a proportion also suffering from mental illness.”
The Applicant notes that there have been allegations of abuse between
residents at some licensed boarding houses. The Applicant also advises that it
is “aware of alleged cases where residents are treated to sub-standard
level of accommodation and service: poor food and clothing, poor hygiene and
cleanliness and poor physical health.”
The Applicant states that it provides a range of accommodation options to
eligible children and young people under 18 years of age who require
accommodation services. The Applicant claims that it is therefore unnecessary
for persons under 18 years of age to be eligible to reside in licensed boarding
houses.
Submissions received by the Commission
The Applicant’s request for a temporary exemption was posted on the
Commission’s website and interested parties were invited to comment on the
exemption. The Commission received two submissions in response to the
Application. Both submissions recommended that the Commission grant the
exemption.
People with Disability Australia (PWDA) advised that it “fully
supports” the Application. PWDA agrees that licensed boarding houses are
not safe or suitable places for persons under 18 years of age. PWDA stated that
relevant considerations in relation to the Application are the rights outlined
in the Convention on the Rights of the Child and the Convention on the Rights of
Persons with a Disability (CRPD). PWDA particularly notes article 7 (children
with disabilities) and article 23 (respect for home and family) of the CRPD
which specifically address the rights of children with disabilities.
The Tenants Union of New South Wales is also of the view that licensed
boarding houses are not suitable places of accommodation for minors. The Tenants
Union states that “all too often, (licensed boarding houses) reproduce the
segregation, exploitation and abuse of the large institutions they were meant to
replace”. The Tenants Union further states “we believe that there is
no place in the future of our housing system for these institutionalizing
places. While they are allowed to continue to operate, (licensed boarding
houses) should be subject to a regime of close monitoring and compliance with
standards. A screening tool that excludes minors from (licensed boarding houses)
is part of such a regime.”
Further information received from the Applicants
In response to a request from the Commission, the Applicant provided further
information in support of the Application.
The further information outlined the history of the licensed boarding house
sector and the scheme established in the YACS Act and YACS Regulation. The
submission also provided demographic information about the people who live in
licensed boarding houses.
The Applicant restates that licensed boarding houses are not suitable places
of residence for persons under 18 years of age because many residents of
licensed boarding houses have an intellectual disability or a mental illness,
and because there have been incidents of violence between some residents and
allegations of sexual assaults at some licensed boarding houses. Further, the
Applicant notes that in many licensed boarding houses, residents share rooms and
staff members are not on site at all times. The Applicant also states that
employees of licensed boarding houses are not required to complete a criminal
record check.
The Applicant notes that under the Children and Young Person (Care and
Protection) Act 1988 (NSW), if a child or young person is placed in out of
home care, the child or young person is entitled to a safe, nurturing, stable
and secure environment.[10] The
Applicant argues that licensed boarding houses are not able to provide a
nurturing, stable environment for a young person. The Applicant also states that
no tenancy rights are granted to residents of licensed boarding houses and a
secure environment cannot be guaranteed. The Applicant submits that,
irrespective of the care and supervision provided by employees of licensed
boarding houses, such facilities are not suitable or safe for persons under 18
years of age.
The Applicant advises that few people aged under 18 have ever resided in
licensed boarding houses and that for approximately 10 years no such person has
resided in a licensed boarding house. The Applicant advises that of the 375
people who have been assessed using the screening tool since April 2010, the
youngest person was 19 years of age but the majority of people assessed were
between 45 and 50 years of age.
The Applicant claims that there are a number of alternatives available to
persons under 18 years of age who are in need of accommodation. The Applicant
advises that persons aged over six years of age who have an intellectual
disability are eligible for its direct services. The Applicant also states that
it funds numerous non-government organisations who support people who have a
disability within the meaning of the Disability Services Act 1993 (NSW)
but who do not meet the criteria for provision of direct services by the
Applicant.
The Applicant advises that under its Prioritisation and Allocations Policy,
children and young people who are homeless and certain and young people who are
assessed as being at risk of harm are “among its highest priorities
requiring an immediate response”. The Applicant advises that in each
region, an Intake Referral and Information (IRI) team manages phone enquiries.
The Applicant claims that where a person who has a disability is identified as
being homeless or at risk of homelessness or at risk of harm, the IRI team will
trigger an immediate response to secure emergency support until a longer term
solution can be identified. The Applicant advised that it assisted a number of
people in this way in the 2010/2011 financial year.
REASONS FOR DECISION
The Commission has considered all of the material that has been placed before
it, together with the Commission’s Guidelines on Temporary Exemptions
under the ADA, and has decided to grant the Application for a period of one
year, subject to the conditions outlined above. The reasons for the
Commission’s decision are as follows.
The Commission is of the view that it is reasonable to grant the exemption
for a period of one year because it is persuaded by the submissions of the
Applicant and of the two agencies that made submissions in response to the
Application that some licensed boarding houses are currently not suitable places
for persons under 18 years of age. The Commission notes the recent report of the
New South Wales Ombudsman which expresses concern about the “vulnerability
and poor circumstances of people living in licensed boarding
houses”.[11]
However, the law of New South Wales does not provide that licensed boarding
houses are places of residence for adults only. The Commission has therefore
granted the exemption for one year so that the Applicant has a period of time to
devise a scheme to ensure the improvement of conditions within licensed boarding
houses. To this end, Condition 1 to the exemption requires that the Applicant
advise the Commission of the steps that it has taken during the exemption period
to ensure greater compliance with the YACS Act and YACS Regulations and the
improvement of conditions within licensed boarding houses generally.
The Commission notes that the majority of residents of licensed boarding
houses have a mental illness and that a substantial proportion of them have an
intellectual disability. The Commission also notes that in 2010 the majority of
residents of licensed boarding houses were over 48 years of age. As people with
disability and older people are likely to be vulnerable they also should have
access to appropriate and safe places of residence. However, the Commission
considers that persons under 18 may presently be at particular risk should they
be admitted to a licensed boarding house.
APPLICATION FOR REVIEW
Subject to the Administrative Appeals Tribunal Act 1975 (Cth), any
person whose interests are affected by this decision may apply to the
Administrative Appeals Tribunal for a review of the decision.
Dated this 18th day of January 2012.
Signed by the President, Catherine Branson QC, on behalf of the
Commission.
[1] Section 11 YACS
Act.
[2] Section 3 YACS
Act.
[3] Section 3A YACS
Act.
[4] Further submissions of the
Applicant provided to the Commission on 27 October
2011.
[5] Sections 5 to 15 YACS
Regulation.
[6] Section 19 YACS
Regulation.
[7] Section 19 YACS
Regulation.
[8] Section 19 YACS
Regulation.
[9] Information About
the Screening Tool for Licensed Residential Centres. Family & Community
Services, Ageing Disability and Home Care April
2011.
[10] Section 9(f) Children and Young Person (Care and Protection) Act 1998 (NSW)
[11] More than board and
lodging: the need for boarding house reform. A special report to Parliament
under section 31 of the Ombudsman Act 1974 August 2011.