The Human Rights Law Centre has welcomed proposed amendments to section 199 of the Disability Act 2006 (Vic) which will strengthen the extent to which that Act protects the human rights of people with intellectual disabilities. The amendments give effect to recommendations made jointly by the HRLC and the Office of the Public Advocate. At present, section 199 of the Disability Act provides that a person with intellectual disability can be detained for up to 28 days for the purpose of assessment. There is no right of appeal to the Victorian Civil and Administrative Tribunal against the order to detain the person or the conditions of detention. There is also no requirement that the person be given reasons as to their detention or that any representatives or advocates be notified that the person has been detained.
Over the last 3 years, the HRLC and OPA have advocated that section 199, in its present form, is incompatible with the Victorian Charter of Human Rights, infringing the rights to liberty, freedom of movement, freedom from medical treatment without consent, and to a fair hearing. With the pro bono assistance of Fiona McLeod SC and Elizabeth Bennett of Counsel, the HRLC and OPA drafted proposed amendments to section 199 to provide that:
- a person detained under section 199 must be given reasons for the order;
- OPA must be informed that the person has been detained; and
- the person may apply to VCAT for a review of the order.
The Disability Amendment Bill 2012 was introduced to Victorian Parliament by Community Services Minister Mary Wooldridge on 28 February. Among other things, the Bill amends section 199 of the Disability Act, and also inserts a new section 199A, to give effect to all of the recommendations made by the HRLC and the OPA.
According to the Minister’s Statement of Compatibility, “The Bill provides for a person to seek a review at VCAT of the decision to make an assessment order. This promotes the right to a fair hearing and the right to liberty and security of the person.”
The HRLC welcomes the Victorian Government’s positive response to our recommendations and looks forward to the expeditious passage of the amendments.