The Disability Royal Commission: An instrument for law reform & public

The Disability Royal Commission: An instrument for law reform and public policy change

NATALIE WADE, FOUNDER AND PRINCIPAL LAWYER DIRECTOR, EQUALITY LAWYERS

In April 2019, the then Prime Minister Scott Morrison announced the Royal Commission into the Violence, Abuse, Neglect and Exploitation of People with Disabilities (Disability Royal Commission). The Disability Royal Commission was long lobbied for by the disability community for well over a decade prior to the announcement. The decade long push for a Royal Commission into the violence, abuse, neglect and exploitation of people with disabilities in Australia reflected the under-reported, not-investigated and covered-up treatment of people with disabilities throughout Australia. Australia has a long history of public policy and laws which fail to act when people with disabilities face incidents of violence, abuse, neglect and exploitation in all settings. These systemic and structural barriers are reflected in the failure to properly fund the social and economic participation of people with disabilities, the long history of institutionalised care settings and the absence of people with disabilities from our workplaces and schools. These systemic and structural barriers create ideal circumstances for violence, abuse, neglect and exploitation to occur.

Historically, the disability rights movement in Australia is punctuated by key inquiries that have led to significant and lasting changes to the realisation of the rights of people with disabilities in this country. In 2009, the Shut Out: The Experience of People with Disabilities and their Families in Australia National Disability Consultation Report prepared by the National People with Disabilities and Carer Council resulted in what we now know as the Australian Disability Strategy (the National Disability Strategy before that). The Australian Disability Strategy sets out practical changes to realise the vision for “an inclusive Australian society that ensures people with disability can fulfill their potential, as equal members of the community”1. In 2011, the Disability Care and Support Inquiry Report prepared by the Productivity Commission produced the framework for what we now know as the National Disability Insurance Scheme. In 2015, the Senate Community Affairs References Committee released their report, Violence, abuse and neglect against people with disability in institutional and residential settings, including the gender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse people with disability, the first recommendation of the Report was to establish, what we now know as, the Disability Royal Commission.

It is difficult to think of an advancement in the rights of people with disabilities which has not had a voluminous report precede it. While the announcement of an expensive and lengthy inquiry is not always met with unbridled gratitude by the taxpayer, in the context of disability rights, conducting such inquiries has been essential to the advancement of our human rights. Unlike other human rights movements throughout Australia, the disability rights movement is shorter than most people’s lifetimes, having commenced in earnest in the early-1980s. The movement began in a time where people with disabilities were largely removed from their family homes and lived in large, institutionalised settings. Rights such as to access education, work and healthcare on an equal basis with others were pipedreams and for decades to come, beyond progression.

As such, there has been a lot to learn and investigate. The role of inquiries has been critical to uncovering the depth and impact of human rights violations against people with disabilities, often as a result of public policy and legal frameworks developed without recognition that people with disabilities are rights-holders. The inquiries have also been fundamental to giving a platform to hear from people with disabilities and their families about their experiences, giving an appropriate sense of urgency and mandate to realise disability rights for generations to come.

The Disability Royal Commission has heard significant stories from individuals with disabilities which have, for many, been the first public accounts of the harrowing history of lived experience of disability in this country. Having the Disability Royal Commission be the forum to receive these stories has been important to ensure the voice of people with disabilities is central to the body of evidence that will inform the recommendations. This approach places the recommendations in a strong position to be accepted by the government and community. However, the task of the Disability Royal Commission is not to attend to individual matters but is to create systemic reform.

Reflecting the Terms of Reference, the Disability Royal Commission describes three areas of investigation: • Preventing and better protecting people with disability from experiencing violence, abuse, neglect and exploitation, • Achieving best practice in reporting, investigating and responding to violence, abuse, neglect and exploitation of people with disability, and • Promoting a more inclusive society that supports people with disability to be independent and live free from violence, abuse, neglect and exploitation.2

In his Opening Remarks which are repeated in the Interim Report released in October 2020, the Chair of the Disability Royal Commission, The Hon Ronald Sackville AO KC stated “… our ultimate aim is nothing if not ambitious. We seek to transform community attitudes and bring about changes to policies and practices that have exposed people with disability to violence, abuse, neglect and exploitation and that denied them ‘full and effective participation and inclusion in society’”3 .

Unsurprisingly, with that ambition made clear at the outset, the Disability Royal Commission is predicted to change the course of the disability rights movement in Australia. For the first time, systems gaps which allow violence, abuse, neglect and exploitation of people with disabilities to take place will come to our collective consciousness. With the final report due in September 2023, it is a ripe time to reflect on how the Disability Royal Commission will set the policy and reform agenda for generations to come. There are many ways that the Disability Royal Commission will, over time, advance the rights of people with disabilities but some are less obvious than others: • the comprehensive and public account of experiences of violence, abuse, neglect and exploitation of people with disabilities allow those telling their stories to be heard, which for some is a first. This can be an important step to progressing beyond the past and ensuring those affected are a part of the change to come. • the report provides public education for people to know their right to be free from violence, abuse, neglect and exploitation. By hearing stories of those who have lived experience but also clear messages from the

Royal Commissioners that this is not acceptable and that laws and systems need to change to prevent it is importantly powerful to educating those who face similar situations. • it is hoped that a community conversation will start at the release of the report, bringing new voices and thinkers into the conversation.

It is fundamental that everyone in the community understands what violence, abuse, neglect and exploitation against people with disabilities is, so we can all work together to prevent it. • for existing campaigners, the scale and depth of evidence coming out of the

Disability Royal Commission can be used to bolster their position. For issues identified that are not currently subject to campaigns for law reform and public policy change, the evidence base can offer a solid foundation to build those campaigns. • naturally, recommendations will be accepted (or not) by government and this will inform the government’s agenda on disability rights insofar as addressing violence, abuse, neglect and exploitation. It is hoped this will lead to sweeping law reform and public change across the country. • in accepting the recommendations, governments will need to develop implementation strategies which ensure deliberate thinking and spending on needed disability rights reform. This coordinated and deliberate effort is a welcomed change of pace to the, at times, more piecemeal approach to reform that is not informed by such a significant report. • financial investment by Governments is more likely to follow the recommendations being implemented.

Reform can rarely be achieved without financial investment. Having this available increases the likelihood of the reform lasting and becoming ingrained within the community.

While the Disability Royal Commission is not the first inquiry to change the course of the disability rights movement in Australia, the ways in which it will are highly anticipated. Whether by providing evidence to existing campaigns for change, demanding governments to develop a coordinated and clear agenda to reform and invest in that reform or by ensuring people with lived experience are heard and are at the centre of the conversation, the pathway to reform is not linear. But achieving true progress to advance the rights of people with disabilities in Australia and to ensure future generations live a life free from violence, abuse, neglect and exploitation is worth ensuring we engage all avenues toward law reform and public policy change from the perspective of government and community. B

Endnotes 1 Australian Government, ‘At a glance – Australia’s

Disability Strategy’ (Web Page) < https://www. disabilitygateway.gov.au/ads/glance> 2 https://disability.royalcommission.gov.au/aboutroyal-commission 3 Royal Commission into Violence, Abuse, Neglect and

Exploitation of People with Disability (Interim

Report, October 2020) vol 1., xii.