03 August 2012

Submission on New South Wales' Draft Boarding Houses Bill 2012

Today I made an amended submission on the New South Wales' Exposure Draft Boarding Houses Bill 2012.   Below is that amended submission:

Louise Blazejowska
Senior Legal Officer
Boarding House Reform Team
Ageing, Disability and Homecare
NSW Department of Family and Community Services
Level 4
83 Clarence Street
Sydney NSW 2000

Re:       Amended Submission of Partial Opposition to Exposure Draft Boarding Houses Bill 2012; Suggested Remedial Language

Dear Ms Blazejowska:

My original submission was made on 1 August 2012.  I respectfully request that this amended submission be accepted following discussions on Thursday, 2 August 2012, with a senior staffer in Minister Andrew Constance’s office.  This amended submission better clarifies issues between tier 1 and 2 boarding houses.  Furthermore it fully addresses the three elements in the definition of “vulnerable person” which I believe, as presently written in the draft legislation, is overly broad and will cast a wide and far reaching net in that anyone on a disability pension will be defined as a “vulnerable person” to include me.  

First, I am physically disabled in that I sustained a spinal cord injury in the mid-1990s which left me, inter alia, with partial paralysis in my lower extremities.

Second, I am a fifth generation Australian citizen and a United States Navy veteran who served during the First Gulf War.  Following my last spinal surgery in 2009, and subsequently being classified as “permanently medically unfit” (Class 4) by the Australian Defence Force[1] when I was a candidate for the Royal Australian Air Force, I began receiving a disability pension pursuant to an international agreement between the U.S. and Australia.

Third, I would like to emphasize, that because I sit on various veterans’, service and ex-service organisation boards and committees within Australia, I make this submission strictly in my personal capacity as a registered voter in the State of New South Wales (“NSW”) and nothing I state herein should be imputed to anyone but me.

In NSW there is an estimated 455 boarding houses, accommodating over 5,000 residents. Of these, 31 are Licenced Residential Centres (“LRC”) also known as tier 2 boarding houses, with a capacity to accommodate 687 people.[2] The remainder 424 boarding houses are tier 1.[3]


The Exposure Draft Boarding Houses Bill 2012 (hereinafter the “draft legislation”) is misleading and to some degree deceptive in that the bill’s title suggests this is a “Boarding House Bill”, when in actuality it is a “Licenced Residential Care Bill” that is most likely to cause at least three unintended consequences:

1)  Crush tier 1 boarding houses making it very difficult to near impossible for veterans or civilians who receive a disability pension to receive housing in tier 1 boarding houses.

2)  Discriminate against veterans and those civilians receiving a Disability Support Pension (“DSP”) by automatically categorizing them as vulnerable and thereby precluding them from being treated normally for housing purposes in a state that already has housing shortages and overpriced rental and housing markets.[4]

3)   Breach of a person’s privacy[5] and human rights[6] because it imposes unrealistic reporting requirements concerning a person’s whereabouts (coupled with severe penalties) on operators.

I can appreciate the need for tougher safety regulations to prevent terrible incidents such as fires to nursing homes like the one in Quakers Hill[7] or deaths in boarding houses from over-sedation and undernourishment[8] as justification for tougher regulations on boarding houses in
tier 2.  However, under the Building Code of Australia (“BCA”), there are different categories and classifications of boarding houses,[9] and experts have already established appropriate Australian Standards for each category.  The draft legislation seeks to group tier 1 boarding houses, which are different than any other type of boarding house, into tier 2.  This will likely cause at least three of the unintended consequences outlined above. 

Defined in § 34 of the draft legislation is the term “vulnerable person”, indicating that a person who is receiving “a disability support pension under the Social Security Act 1991; or a special rate disability pension under the Military Rehabilitation and Compensation Act 2004 of the Commonwealth; or any other pension or other payment of a kind prescribed by the regulation” provides prima facie evidence that the person is disabled[10] thereby meeting two of the three elements for “vulnerable person” as a disability pension also provides evidence that the condition is permanent by virtue of the pension itself.[11]  The final element is addressed below.  The draft legislation then seeks to turn a tier 1 boarding house, under § 35, into a “residential centre for vulnerable people” if there are two or more of “vulnerable persons” in the premises.

It then imposes conditions, under § 82, upon the premises owner of a “residential centre for vulnerable people” that would seemingly violate the privacy and human rights of a disabled veteran (or a disabled person receiving a DSP) by requiring the owner of the premises to report on the activities of the veteran or civilian DSP recipient such as if the absence of the veteran or civilian from the centre is more than 24 hours and the veteran or civilian has not informed the manager of his or her whereabouts the manager must inform Director-General of the Department or face a fine as more fully explained below. In this regard the NSW Privacy Commissioner should be involved in the consultation process.

Apart from the privacy violations of monitoring veterans or civilians whereabouts it would also most likely cause human rights discrimination against veterans and/or civilians receiving any Government pensions in NSW by the probable result of owners/operators of boarding houses declining to rent to veterans receiving a pension so that the boarding house would not fall under the definition of § 35 of the draft legislation.

I agree that genuinely disabled people requiring support services need to be housed in appropriate accommodation facilities with necessary support/care structures. These are Licenced Residential Care Facilities (tier 2), not Boarding Houses (tier 1), and as such should remain bifurcated.

The definition of a vulnerable person in § 34 is much too broad under the draft language, and will automatically categorise people on pensions (who already have permanent conditions due to the fact the individual was granted a pension in the first instance) as “vulnerable” because it does not take into account whether or not there is an ongoing need for support services.  And as explained above, per § 35 of the draft legislation, two or more vulnerable people in a tier 1 boarding house, automatically forces the operator to comply with tier 2 LRC Facility provisions, which include onerous care, compliance, reporting and penalty conditions, like (as per § 82) an obligation to report to Director-General if an occupant that is absent for more than 24 hours, or else face a $5,500 penalty.

A further concern in the draft legislation, is the language of the third element in definition of a “vulnerable person” which is that “the condition results in the need for support, whether or not of an ongoing nature” contained in § 34(1)(c). I am of the opinion that the need for support should be of a “continued” nature and not “whether or not of an ongoing nature”.  Under the current language, I would fall squarely into the category of “vulnerable person” without regard of the need for support services being ongoing or not, which I view as plainly absurd, offensive and demeaning. For example, in 2009 I underwent a major surgery to remove titanium rods, steel pedicle screws and laminar hooks from my lower spine at Prince of Wales Hospital in Randwick.  Post-surgery, for a period of six months, I required physical support services and arrangements were made for me to be housed on the grounds of Prince of Wales Hospital during this recovery period.[12]  Arguably itcould be said that during this period of time I was “vulnerable”.[13]   While my disability of partial paralysis is permanent with degenerative arthritis I do not currently view myself as “vulnerable”. It is plainly absurd, under the draft legislation to have language that disregards whether or not there is an ongoing need for support services and just automatically defines me and others similarly situated as “vulnerable” because they once had support services. 

Due to the aforementioned reasons I am thus opposed to the draft bill in its current form because, if passed, it will violate a person’s privacy and human rights. These provisions will likely have unintended consequences that result in discrimination against disabled veterans and DSP recipients in an environment which at present provides for a difficult housing and rental market within this state and especially in the metropolitan areas.

I suggest narrowly defining the term “vulnerable person” as opposed to the present overly broad definition contained within the draft legislation, which is much broader than the term “handicapped person” used in the cited comparison of the Youth and Community Services Act 1973:


34 Meaning of “vulnerable person” (cf YCS Act, s 3)

(1) For the purposes of this Act, a person is a vulnerable person if:
(a) the person has any one or more of the following conditions:
(i) an age related frailty,
(ii) a mental illness within the meaning of the Mental Health
Act 2007,
(iii) a disability (however arising and whether or not of a
chronic episodic nature) that is attributable to a
intellectual, psychiatric, sensory, physical or like
impairment or to a combination of such impairments, and
(b) the condition is permanent or likely to be permanent, and
(c) the condition results in the need for [continued] support, whether or not of an ongoing nature.
(2) The fact that a person is receiving a disability pension is prima facie
evidence that the person has one of the conditions referred to in
subsection (1) (a).
(3) In this section:
disability pension means any of the following:
(a) a disability support pension under the Social Security Act 1991 of
the Commonwealth,
(b) a special rate disability pension under the Military Rehabilitation
and Compensation Act 2004 of the Commonwealth,
(c) any other pension or other payment of a kind prescribed by the
regulations.

Under the current language contained in §§ 34 and 35 when read together, it undermines the definition of tier 1 boarding houses outlined in section 5 as a proximate result of § 35(1)(a) which provides, inter alia, that a residential centre for vulnerable persons means “boarding premises . . . for use by 2 or more residents who are vulnerable . . .  The language as read in whole unnecessarily converges a tier 1 boarding house in toto as a tier 2.  A failure to bifurcate the two tiers will cause unintended consequences as explained above.   

Concerning the reporting requirements outlined in § 82, I believe those should be strictly confined to tier 2 boarding houses to avoid misapplication of the measure and to protect the privacy and human rights of veterans and civilians receiving disability pensions who are not truly “vulnerable”:

82 Notification of deaths, sexual assaults and absences in or from
authorised residential centres (cf YCS Act, s 26)

(1) The manager of an authorised residential centre must, as soon as is
reasonably possible after becoming aware of the following incidents,
report the incident to the Director-General:
(a) the death of a resident of the centre,
(b) the sexual assault (or the making of an allegation of sexual
assault) of a resident of the centre,
(c) the absence of a tier 2 boarding house resident of the centre for a period of more than 24 hours if the resident’s has not informed the manager of his or her whereabouts is unknown.
(2) The manager must also report the death of a resident of the centre to a police officer as soon as is reasonably practicable after becoming aware of the death.
(3) A manager of an authorised residential centre who contravenes this
section is guilty of an offence.
Maximum penalty: 50 penalty units.

With respect to the unintended consequences outlined herein, an Australian 2009 report noted that the “[l]ack of affordable housing is a key challenge for some veterans. Several veterans interviewed indicated that if affordable rental housing or public housing had been available they would probably not have become homeless. Homelessness agencies also stressed the importance of providing affordable housing as a priority, in order to enable veterans to subsequently deal with other issues.[14]  The report also found that at least 3,000 veterans were experiencing homelessness.  (Id at Chapter 4.) 

Based upon information and belief the Department of Family and Community Services have not consulted Ex-Service Organisations (“ESO”) (like the RSL, Legacy, etc.) in this state on the affect this draft legislation could have on disabled veterans and war widows living in boarding houses. I respectfully urge the Boarding House Reform Team to consult with ESOs on this subject prior to any final draft legislation being introduced in Parliament. 

The 2006 Census data estimates that approximately 104,000 Australians experienced homelessness on Census night. (Id.) It was estimated that 21,596 were in boarding houses. (Id.)  Thus the unintended consequences of this draft legislation, if passed, will certainly crush tier 1 boarding houses in NSW likely resulting in hundreds of veterans and civilians who receive Commonwealth disability pensions being displaced with the real fear of homelessness. 

Upon further research (after my original submission) I discovered that Minister Victor Dominello, MP, the NSW Minister for Citizenship and Communities, when he was in the opposition in 2010, introduced a private member's bill to reform tier one boarding houses which was entitled Environmental Planning and Assessment Amendment (Boarding Houses) Bill 2010. That private member's bill which Minister Dominello introduced when he was in opposition was (and remains) spot on with tier 1 boarding housing unlike the present Exposure Draft Boarding Houses Bill 2012 which really is a tier 2 boarding houses bill that will result in serious unintended consequences for tier 1 as previously explained above. The Dominello 2010 private member's bill specifically tailors language to address problems with tier 1 boarding houses holding the operators of tier 1 housing accountable. I note that in Minister Dominello's district there have been issues with tier 1 boarding houses with international students being overcrowded in tier 1 boarding houses near Macquarie University.  As such Minister Dominello appears to have first-hand knowledge with issues concerning tier 1 boarding houses. Thus I suggest the Boarding Houses Reform Team consult with Minister Dominello on this issue.

The language used in Minister's Dominello's 2010 private member's bill concerning tier 1 boarding houses, which gives Local Government increased powers, should be incorporated into the Exposure Draft Boarding Houses Bill 2012 which would then fully address the issues with tier 1 boarding houses as well as tier 2.

During my discussions with Minister Constance’s office on 2 August 2012, it was revealed that none of the submissions on this draft legislation will be made public by DFCS.  I think non-confidential submissions should be made public for greater transparency in Government.  I will be making my submission public via Equal Justice for Troops blog. 

It is noted that Housing NSW has "introduced the SEPP to support a resilient rental housing market, enabling a range of built forms and housing options. Among these options are new generation boarding houses, providing affordable and appropriate accommodation for a range of households requiring more flexible accommodation."[15]  I am certain the draft legislation as written will discourage developers to build the new generations of boarding houses due to the unintended consequences I have outlined.

In closing, it seems as though the then-impending State Coroner’s report of Magistrate Mary Jerram which is noted in footnote 8 herein precipitated the draft legislation given that Minister Constance’s office advised the undersigned, on 2 August 2012, that the underlying issues of boarding house reform have been pending a decade with no action.  In this regard, I am seriously concerned with the narrowly targeted consultation process on this draft legislation together with the short period of the targeted consultations.  This draft legislation is well intended but serious consultations should be made with stakeholder resulting in a well written bill.  I do not want to see this draft legislation railroaded through Parliament in a knee-jerk reaction from the then-fear of what the State Coroner’s report was going to state.  People living with disabilities in this state deserve better from their elected representatives and from agency bureaucrats.  Disabled people deserve legislation that is carefully crafted with all stakeholders consulted in a process that is open and transparent.  To date that has not occurred in the Exposure Draft Boarding Houses Bill 2012.  

I do thank you and the NSW DFCS for the opportunity to make this amended submission.


[1] An appeal of the class 4 medical finding was unsuccessful and the Chief Medical Officer of the ADF affirmed the original finding of “permanently medically unfit”.

[3] It is disingenuous to suggest that these tier 1 boarding houses are not licenced.  To the contrary most, if not all in this state, are actually licenced premises via the local governments. (E.g.:  In 2007 there were 54 licenced boarding houses in Waverley LGA as indicated in a Report to Council.  See “Boarding House Rate  Rebates 2007/08” at page 2.) 

[4] See generally Housing Affordability by Louise O'Flynn, July 2011, Briefing paper 4/2011.

[5] In Australia, there is a widespread understanding that the role of privacy in private law is to protect information privacy and seclusion.  See generally Grosse v Purvis [2003] QDC 151 (spatial privacy); Jane Doe v Australian Broadcasting Corporation [2007] VCC 281 (information privacy). cf. Kalaba v Commonwealth of Australia [2004] FCA 763 (rejecting Grosse v Purvis); Giller v Procopets [2008] VSCA 236 [167]-[168] (Ashley JA); [447]-[452] (Neave JA).  See also Privacy and Personal Information Protection Act 1998 (NSW).

[8] 'Sydney's "Dickensian" scandal: six dead', Sydney Morning Herald, 11 May 2012.  Aside from the SMH article, the Coroner’s Report indicates that this was in fact a tier 2 boarding house. Inquest into deaths of Shaneen Batts, et al., at page 11, ¶ 45, specifically notes that "300 Hostel operated at 300 Livingstone Road, Marrickville and was a Licenced Residential Centre (LRC) ".  In this regard, under existing law, the Department of Family and Community Services (“DFCS”) already had oversight authority on this tier 2 boarding house.  It is presently unclear whether or not there were any systemic failures within DFCS in that oversight authority of this LRC given the six deaths. 

[10] § 34(3)(a)-(c) of the draft legislation.

[11] Disability Support Pension is an “income support payment for people who are unable to work due to permanent physical, intellectual or psychiatric impairment.” (emphasis added.)  See Australian Government Guide to Social Security Law at section 1.2.5.10.
[12] Sick building condemned, patients left in the lurch, Sydney Morning Herald, 8 April 2009.

[13] Macquarie Essential Dictionary 4th Ed defines the word “vulnerable” as “susceptible to being wounded; liable to physical hurt”.
[14] Department of Veterans’ Affairs, Veterans at Risk – Research Project, Chapter 3, December 2009.
[15] See Housing NSW website on Boarding Houses (retrieved 3 August 2012).

2 comments:

  1. Hi Norbert

    The Tenants' Union agrees that there's a problem in the definition, but we think the basic problem is a bit different to the one you describe. We also think that it will not have the effect of 'crushing' the Tier 1 premises, but it may confuse, so should be changed.

    The basic problem, as we see it, is in the way Tier 2 premises are defined, rather than in the way vulnerable persons are defined.

    In particular, Tier 2 boarding houses are defined by reference to their use by two persons of a certain description (ie vulnerable persons). Strictly speaking this means that if a Tier 1 boarding house proprietor - who wants only to run a Tier 1 boarding house, and offer lodging and nothing more to members of the public generally - admits into residence a second disability support pensioner, then their whole operation suddenly changes into a Tier 2 boarding house, and the proprietor must apply for authority to operate as such, and is guilty of an offence for every day they are not authorised.

    This is not actually a new problem. The YACS Act also defines LRCs by reference to their use by two persons of a certain description (ie 'handicapped persons'), and strictly speaking many unlicensed boarding houses would fit the definition. ADHC doesn't treat them that way, and we doubt that ADHC would be any more inclined to apply a strict reading of the proposed new definition.

    But the draft Bill should get it right, so we propose a different definition.

    The TU has previously put forward a different scheme of regulation under boarding houses and other residential services would be registered and accredited in three classes - Accommodation Services, Food Services and Personal Care Services - with services in the latter two classes required to comply with additional standards.

    These classes of premises are defined by reference to the services provided by the proprietor, rather than their use by persons of a certain description.

    We think that this is a more sound way of defining premises for the purposes of compliance with additional standards, and that it can be applied to the two-tier scheme of the draft Bill.

    Accordingly, we recommend that a Tier 2 boarding house be defined as boarding premises that provide accommodation and a 'personal care service' to two or more residents. 'Personal care service' should be defined as a service that is addressed to the support needs of a vulnerable person, including the administration of medication to a resident, and the management of a resident's finances, and other prescribed services. It would be an offence to provide accommodation and personal care services without be registered and authorised, per cl 39(1).

    It may be objected that such a definition would allow proprietors of LRCs to avoid regulation as Tier 2 boarding houses simply by not performing services defined as 'personal care services', and that this would result in the Government or another agency having to provide the necessary services instead. In our view, this may indeed be the result - and it would be a positive development.

    Cheers

    Chris Martin, Tenants' Union of NSW

    ReplyDelete