In February 2019, the Australian Government supported a motion in Parliament to establish a Royal Commission to inquire into violence, abuse, neglect, and exploitation of people with disability. In March, the draft Terms of Reference for the Commission were announced and opened for public consultation. In April, the final Terms of Reference were released.
Violence and disability have a long history of being closely linked. People with disability experience higher rates of sexual assault, abuse, and neglect (People with Disability Australia). Women with disability are even more likely to be victims of violence (Women with Disability Australia).
Disability does not inherently make an individual vulnerable to abuse, however. Rather, vulnerability to violence emanates from social and environmental factors. It is created by power imbalances between people with disability and service providers, lack of education and training on identifying abuse, poor reporting mechanisms, inaccessible justice systems and other social phenomena.
The 2006 United Nations Convention on the Rights of Persons with Disabilities (CRPD) was the first international human rights treaty to recognise that vulnerability to violence is largely socially created. It establishes that governments have a responsibility to combat this social construction of vulnerability through adherence to its Articles.
Article 16 of the Convention guarantees the right to be free from exploitation, violence, and abuse. It outlines the social barriers which need to be broken down and the safeguards that need to be in place in order for governments to make the right a reality, creating a safe environment for Australian persons living with disability. Australia is a State Party to the CRPD and is legally bound by all its provisions, including Article 16.
Article 16 and the Terms of Reference
In line with Article 16, the Terms of Reference place the onus on Australian society for changing environmental factors that make people with disability vulnerable to abuse. There are, however, three key points of tension between the Terms of Reference and this Article. These three points of tension raise questions about whether the Commission adequately addresses such environmental factors.
- Prevention through effective and independent monitoring?
Article 16.3 of the CRPD states that “[i]n order to prevent the occurrence of all forms of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities”.
Independent monitoring is a crucial mechanism that allows individuals and groups to externally identify situations and environments that lead to vulnerability to abuse. This serves a double purpose of possibly acting as a deterrent for potential abusers, as well as empowering people with disability because there is an independent avenue for addressing abuse. Unfortunately, there is no reference made within the Terms of Reference to such monitoring provisions. Indeed, the only hint that the Commission should consider monitoring provisions is found in Term (f), where the Commission are directed to have regard to the NDIS Quality and Safeguarding Framework (the NDIS Framework). This NDIS Framework includes the establishment of the NDIS Quality and Safeguard Commission which is responsible for independently monitoring compliance against the NDIS Code of Conduct and Practice Standards.
In the absence of any other reference to monitoring provisions within the Terms of Reference, it is plausible that the directions of Term (f) may limit the scope of the Commission’s consideration of monitoring provisions to those made available through the NDIS Framework. This certainly would not be the first time that monitoring provisions within the NDIS Framework have been put forward as the sole preventative measure in preventing violence, abuse, neglect and exploitation of people with disability.
Should the Commission limit its consideration of monitoring provisions to those made available within the NDIS Framework, two potential issues arise.
First, the NDIS Framework and its provisions for monitoring and prevention of violence only apply to those who are eligible for the NDIS, which is only a small fraction of people with disability in Australia (approximately 10%). This suggests that it is not sufficiently broad to monitor situations of abuse for people with disability in Australia.
Second, concerns have also been raised about the capacity of the NDIS Framework and the NDIS Quality and Safeguard Commission to protect those individuals to whom the NDIS Framework does apply. As Disabled People’s Organisations Australia (DPO Australia) have previously explained, these measures “appear to be largely based on systems and responses that the Senate Inquiry found to be inadequate”. This is because the NDIS Framework is not an independent monitoring body. The onus to report inappropriate activity lies primarily with service providers. People with disability who approach the Quality and Safeguard Commissioner with a complaint will be encouraged to first raise their concern with their service provider. This measure ignores the reality that a person with disability who is experiencing abuse, violence, neglect or exploitation at the hands of their service provider is unlikely to feel comfortable raising their concern with said provider. Hence, effective independent monitoring authorities in line with Article 16.3 are vital to prevent violence, abuse, neglect and exploitation, and should be considered by the Commission.
- Prosecution for past and future instances of violence, abuse, neglect and exploitation.
Article 16.5 of the CRPD indicates that States Parties shall put in place effective legislation and policies “to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.”
The investigation and prosecution of individuals who abuse people with disability is vital to addressing and correcting the social and environmental situations leading to abuse. Prosecution in particular has the potential to act as a deterrent to other abusers. In addition, court reporting requirements would create a substantial body of data on the nature of the social and environmental situations that contribute to abuse, something which is currently lacking in the Australian context.
It is not clear within the Terms of Reference, however, to what extent the Commission is empowered to make reforms pertaining to the prosecution of violence, abuse, neglect and exploitation. Term (l) authorises the Commission to “take (or refrain from taking) any action” in relation to “the need to establish mechanisms to facilitate the timely communication of information, or the furnishing of evidence, documents or things”.
While this Term holds potential for some recent offences to be investigated and prosecuted, it suggests that the role of the Commission remains limited to establishing a mechanism to facilitate timely communication of information and evidence to other authorities, and not, for instance, to providing recommendations for embedding new or additional prosecutorial measures within current or future disability legislation and policy.
The distinct lack of “justice” focus shown in the Terms of Reference was recently critiqued by Catia Malaquias, who also noted the lack of provisions for redress for historical incidents under the final terms of reference for the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse.
These tensions suggest that the Commission may not be prepared to take action against individuals who take advantage of the social environments that leaving people with disability vulnerable to abuse.
- Promoting recovery and rehabilitation for victims, not just social reintegration.
While social and environmental situations place people with disability in vulnerable positions, once the abuse has occurred, survivors often need more than support for social reintegration. They may also need assistance with physical and psychological recovery.
One of the main requirements of the Commission is to inquire into “what should be done to promote a more inclusive society which supports the independence of people with disability and their right to live free from violence, abuse, neglect and exploitation” (Term (c) of the Terms of Reference). Such a requirement appears to partly reflect Article 16.4 of the CRPD and its requirement to create environments which promote the “physical, cognitive and psychological recovery, rehabilitation and social reintegration” of victims with disability. Yet, the Terms of Reference have neglected to include physical, cognitive and psychological recovery. Indeed, survivors of violence are barely mentioned within the Terms of Reference.
This lack of reference to the voices and needs of survivors, not only raises concerns about the lack of “justice” focus within the Terms of Reference, but also raises broader questions about the extent to which the experiences of people with disability will be reflected within the Commission and its inquiry. This is particularly concerning because the experiences of people with disability themselves are essential for adequately understanding the conditions that are creating the social and environmental situations which are leaving people with disability vulnerable to abuse. A number of DPOs have made strong recommendations for the Terms of Reference to place the experiences of people with disability at the centre of the inquiry.
Although the Terms of Reference are missing these key items for addressing the social and environmental situations leading to vulnerability to abuse, the Commission itself retains the power to correct this. In its consultations and reporting, it has the power to identify these gaps and try to address them, where possible. Where they find that it is too far beyond the scope of their Terms of Reference, they could make recommendations to ensure that these issues are taken up in future research and that advocacy be undertaken to address these gaps.
In order to ensure that these gaps are adequately addressed, it is essential for the correct Commissioners to be selected for the role. They must be independent from service providers and government interests – and, ideally, they should be people with disabilities themselves, in order to ensure the representation of the lived experience of disability among the Commissioners. Unfortunately, there is already significant public concern about the appointment of two Commissioners at this time: the Hon. John Ryan and Ms Barbara Bennett. These two Commissioners have extensive backgrounds in the public service, working for the very institutions that will be examined by the Royal Commission, and thus their presence on the Commission may lead some people to hesitate to come forward to participate in this Royal Commission due to conflicts of interest. It thus remains to be seen if this Royal Commission will be effective in addressing the social and environmental situations that lead to the abuse, violence, neglect and exploitation of people with disability.