Update on Disability Royal Commission

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Luke Geary, Partner, and Georgia Haydon, Lawyer

“This Royal Commission is … the product of tireless and persistent efforts by disability advocates and many others who have long recognised that people with disability in this country are routinely subjected to violence, abuse, neglect and exploitation.”[1]

There have been a number of important developments since the announcement of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Commission) on 5 April 2019.

New Commissioner

The Hon Roslyn Atkinson, former Queensland Supreme Court Justice and President of the Queensland Anti-Discrimination Tribunal, was appointed to the Commission by the Commonwealth Government on Friday, 13 September 2019.  The total number of Commissioners now is seven, reflecting the large scale expected of the Commission.

First Public Hearing

“… it’s from this place, we will uncover uncomfortable truths. It’s from this place we will hear stories of violence, abuse, neglect and exploitation.”[2]

On 16 September 2019, the Commission held its first public hearing in Brisbane, setting the scene and intention of the inquiry.

Rebecca Treston QC, Senior Counsel assisting the Commission, quoted statistics outlining the prevalence of abuse experienced by Australians with disability:  ‘Almost one in five Australians have a disability… . Every 10 minutes, someone with profound or severe disability experiences physical or sexual violence.”

The Hon. Ronald Sackville AO QC, Chair of the Commission, discussed the breadth of the terms of reference, emphasising that the Commission’s inquiry extends to people with disability in all settings and contexts.  He stated:

“All of us are deeply conscious of the magnitude and complexity of the task ahead of us. It is truly formidable. We cannot complete that task successfully unless people with disability who have experienced violence, abuse, neglect and exploitation are prepared to tell their stories to the Commission.”[3]

Engagement

Reference was also made to the experiences of First Nations people with disability, who typically experience higher rates of violence.  The Chair stated that the intention of the Commission was to be as accessible and engaging as possible, and that remote and rural communities would also be at the centre of the Commission’s inquiry.

In order to support the Commission’s strongly-stated human rights focus and ensure as wide an engagement as possible, the Commission has organised a number of community forums as well as a draft accessibility strategy.

Community Forums

The first Community Forum was held in Townsville on Monday, 9 September 2019.  There were around 150 people in attendance, with 14 speakers sharing profoundly personal stories about their experiences either as a person with disability or as a parent or advocate for a person with disability.  Participation in Community Forums presents an opportunity for people to hear about the work of the Commission, as well as to share stories and ideas.  There will be a number of other community forums held in differing locations announced on the Commission’s website.

Draft Accessibility Strategy

The Commission has been involved in various consultations to date in order to plan for the future, with a view to developing a strategic engagement plan to ensure extensive consultation with people with disability, as well as indigenous, LGBTQI, financially marginalised and other subsets within the disability community.  A draft of that plan can be found here: https://disability.royalcommission.gov.au/about/Pages/draft-accessibility-strategy.aspx

Submissions

Submissions are an important means of participation and engagement with the Commission; people and organisations can provide information to the Royal Commission about their experiences of violence, neglect, abuse or exploitation of people with disability.  For those unable to attend a community forum, the Commission is also now accepting submissions.  A majority of submissions to date have been made on the issues of Housing, Justice and Health, suggesting that the focus of the public hearings will be in relation to these issues.

Other methods of engagement

The Commission has established:

Commission Themes

The Commission has held three workshops with representatives from the legal sector, a criminal justice workshop in Melbourne in September and two First Nations workshops in order to develop themes or domains of inquiry around which to structure its work going forward.

Themes identified to date include:

  • Homes and living
  • Relationships
  • Education and learning
  • Economic participation
  • Health
  • Justice
  • Individual autonomy
  • Self-determination and the right to the dignity of risk
  • Community participation
  • Geographical challenges

It is anticipated that new themes will emerge as a result of the hearings, submissions, workshops and with stakeholders and the community.

Future public hearings

Further hearings will be scheduled, and the Commission will provide additional information about the matters to be addressed during these hearings on its website as the arrangements are finalised.

One or two public hearings are expected to occur before the end of 2019 on the issues of education and learning, and homes and living.  There will be a particular focus on restrictive practices, the exclusion of students with disability from education and issues arising from the types of housing available to people with disability in a community setting or otherwise.

Practice Guidelines

Practice Guidelines have also now been published on the Royal Commission’s website (https://disability.royalcommission.gov.au/hearings/Pages/practice-guidelines.aspx) on:

  1. General Guidance;
  2. Legal Professional Privilege;
  3. Witnesses; and
  4. Conduct of Hearings.

Support to access or engage with the Commission

The Commission’s powers are extensive and may be used to compel people or organisations to produce documents, to summons people to give evidence and to refer people and organisations to the police or relevant regulatory bodies for investigation. In the context of this particular Commission, it was acknowledged that these powers must be exercised with care.  The powers are not intended to be used to compel people with disability to do anything other than engage with the Royal Commission of their own free will and with appropriate support.

The Government has funded a range of services to assist those requiring support during the Commission:  a free legal advisory service, an emotional support service (to be rolled out soon), and a legal financial assistance scheme to assist individuals and entities in meeting the costs of legal representation and disbursements associated with engagement in the Commission.  There is also now a fully funded National Disability Advocacy Program (NDAP).

Notices to Produce

As of mid-September, a ‘substantial number’ (100) of the largest NDIS providers were advised by the Commission that they may soon be receiving notices to produce regarding past complaints and investigations into matters of violence, abuse, neglect and exploitation, as well as policies and procedures to investigate and manage such complaints.  To date, notices to produce have not yet been issued.

Going forwards

  1. Larger NDIS Providers should be live to the fact that they may be imminently contacted by the Commission with a Notice to Produce. Despite the targeting at the moment of ‘larger NDIS providers’, it is to be expected that other providers and organisations will also be contacted on a rolling basis.  As such, NDIS providers and other relevant organisations should start preparing for this eventuality;
  2. All providers and other organisations who might be affected by the Commission should familiarise themselves with the Guidelines issued by the Commission, particularly in relation to document management and production, as this will be particularly important when Notices to Produce are finally issued;
  3. Ensure that your organisation has formed a working group tasked with responding to requests to Notices to Porduce / Summonses;
  4. Once the Commission commences, consider the following:
    1. preparation of witnesses and representation at hearings;
    2. management of reputational issues;
    3. addressing governance and organisational procedures for where improvements can be made;
    4. IT & personnel capacity for document management.
  5. It is important that organisations engage with the Commission in as forthcoming and transparent a way as possible. To do otherwise will draw attention to the relevant organisations and systems and open the way for wider public scrutiny.

If you would like any assistance in preparing for your possible engagement with the Royal Commission, we would be pleased to support you.  Please contact Luke Geary on +61 7 3228 0429 or [email protected]

[1] Transcript of Proceedings, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 16 September 2019, P8-l11 (Hon. Ronald Sackville AO QC).

[2] Ibid, P5-l8.

[3] Ibid, P9-l4.

For further information, please do not hesitate to contact us.

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