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vwl VICTORIAN
WOMEN
LAWYERS
SUBMISSION TO THE ROYAL COMMISSION INTO VIOLENCE,
ABUSE, NEGLECT AND EXPLOITATION OF PEOPLE WITH
DISABILITY
Submitted by: Victorian Women Lawyers Association Inc (VWL)
Submitted: By email
Contact: Vanessa Shambrook, VWL President
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About us
Victorian Women Lawyers (VWL) is a voluntary association that promotes and protects the interests of women in the legal profession. Formed in 1996, VWL now has over 600 members. VWL provides a network for information exchange, social interaction and continuing education and reform within the legal profession and broader community for female identifying lawyers.
Since 1996, VWL has advocated for the equal representation of women at all levels of the legal profession. VWL promotes the understanding and support of women’s legal and human rights by identifying, highlighting and eradicating discrimination against women in the law and in the legal system, to achieve justice and equality for all women.
Details of our publications and submissions are available at www.vwl.asn.au under the ‘Publications’ tab. In particular we draw attention to our recent Submission to the Standing
Committee on Social Policy and Legal Affairs Inquiry into Family, Domestic and Sexual Violence
(2020).
Overview of submission
VWL welcomes the opportunity to make a submission to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Royal Commission).
VWL addresses three of the Royal Commission’s terms of reference in this submission, being:
(a) what governments, institutions and the community should do to prevent, and better protect, people with disability from experiencing violence, abuse, neglect and exploitation, having regard to the extent of violence, abuse, neglect and exploitation experienced by people with disability in all settings and contexts; (b) what governments, institutions and the community should do to achieve best practice to encourage reporting of, and effective investigations of and responses to, violence against, and abuse, neglect and exploitation of, people with disability, including addressing failures in, and impediments to, reporting, investigating and responding to such conduct; and (c) what should be done to promote a more inclusive society that supports the independence of people with disability and their right to live free from violence, abuse, neglect and exploitation.
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1.1 Preventing violence, abuse, neglect and exploitation experienced by people with
disability
The nature and extent of violence experienced by people with disability
Despite making up 17.7% of the Australian population,’ people with disability are more likely to experience abuse than people without disability, including physical, emotional, financial and sexual abuse.” This abuse often intersects with other forms of oppression, including discrimination
on the basis of age, gender identity, sexual orientation, intersex status, ethnic origin, and race.
In their Report, ‘Women, disability and violence: Barriers to accessing justice’,? Australia’s National Research Organisation for Women’s Safety highlights the experiences of women with
disabilities who face violence and abuse:
Typically economic security, housing stability and care and service support are not readily accessible or available for women with disability… Childhood experiences of violence and insecurity were often followed by later life events that reinforced that safety and security were unachievable. For many of these women, experiences of violence were characterised by multiple perpetrators, often family members, and were in many
instances connected to the provision of services.*
People with disability may be dependent on a perpetrator of abuse for day-to-day care, and as such are particularly vulnerable to certain forms of coercion and control not generally experienced
by people without disability.® Examples of coercion which may be experienced by people with disability include:®
- Forced and/ or coerced sterilisation;
- Forced contraception and menstrual suppression; ’ Australian Bureau of Statistics, Survey of Disability, Ageing and Carers (2018) < https:/Awww.abs.gov.au/statistics/health/disability/disability-ageing-and-carers-australia-summary-findings/latest release>.
? For example, the Australian Human Rights Commission has found that approximately “one in four people who report sexual assault are people with disabilities [while around] nine out of ten women with intellectual disabilities have been sexually abused”: Australian Human Rights Commission, Face the facts: disability rights (2014).
3 Maher, J. M., Spivakovsky, C., McCulloch, J., McGowan, J., Beavis, K., Lea, M., … Sands, T. (2018). Women, disability and violence: Barriers to accessing justice: Final report (ANROWS Horizons, 02/2018). Sydney: ANROWS.
-
Ibid, 40. ° Queensland Government, Domestic and Family Violence Prevention Strategy 2016-2026, 3. Retrieved from: https:/Awww.cyjma.qid.gov.au/resources/campaign/end-violence/dfv-prevention-strategy.pdf.
8 Frohmander C, Ortoleva S., The Sexual and Reproductive Rights of Women and Girls with Disabilities, |ssues
Paper (2013).
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- Gender-based violence (which disproportionately affects women with disabilities);
- Denial of maternity, parenting, and parental rights;
- Denial of legal capacity and decision-making; and
- Choices about a person’s health being made by a third party, such as a family member or carer.’
The consequences of coercion and violence against people with disability are wide-ranging, and include impacts on the health care system, ® children’s health, ° and the broader economy. ’° Victim-survivors of abuse may experience psychological and emotional trauma (including depression, anxiety, post-traumatic stress disorder, self-harm and suicide ideation), and physical health problems such as chronic pain, gastrointestinal and gynaecological problems,
and the transmission of sexually transmitted infections.
Community and government initiatives to prevent violence against people with disability
VWL recommends adopting the following actions to prevent, and better protect, people with
disability from experiencing violence, abuse, neglect, and exploitation:
(a) Incorporate a mandated education module for primary and secondary Australian school students on what constitutes abuse, including identifying abuse and coercion against people with disability.
(b) Workplace and community training and guidance on what constitutes abuse, and how to recognise abuse. This should particularly be adopted in a healthcare context, given the unique position of healthcare workers to identify coercion and abuse against people with disability.“
(c) Mandated training for how to use communication cards for people working closely with people with disabilities.
(d) Introduce a system dedicated to identifying coercion or mistreatment of people with
disability, including appointing independent third-party carers for people with disability.
7 Senate Community Affairs Committee, Involuntary or coerced sterilisation of people with disabilities in Australia (2013) https:/Awww.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Involuntary_Sterilisation/First_Report. ® Heiss LL, Pitanguy J, Germain A., Violence against women: the hidden health burden, World Bank Discussion Papers 255 (1994). ® Grace KT, Anderson JC, Reproductive Coercion: A Systemic Review, Trauma, Violence and Abuse (2018) Vol. 19(4) 371-390.
© The National Council to Reduce Violence Against Women and Their Children, The Cost of Violence Against Women and Their Children (2009).
“ Ibid,
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(e) Provide education to help people with disability make decisions about their sexual and reproductive rights and health, by adopting for example the analysis of programs and initiatives adopted by Shine South Australia. 12 (f) Incorporate AUSLAN as an education module for Australian primary schools so those with communication disabilities are able to communicate with all people.
More broadly, VWL supports the adoption of the recommendations from the 2013 Senate Inquiry into the Involuntary or Coerced Sterilisation of People with Disabilities in Australia (I assume the First Report - please specify), including State and Territory legislation adjustment, medical workforce training and the adoption of uniform protection laws for people with a disability. 13
Reforming anti-discrimination legislation Australia’s federal anti-discrimination law is in many ways deficient in its ability to recognise that discrimination is experienced through multiple, intersecting and co-existing forms of oppression. Claimants are required to prove each ground of discrimination separately rather than on the basis of their whole identity. This increases the burden of claimants who make claims under more than one statute and fails to recognise the lived experience of people with disability who may experience exclusion on the basis of multiple factors that cannot in reality, be separated. Importantly, the Australian Human Rights Commission has acknowledged this:
“… protections for different attributes must be able to work together easily- having different
tests for different attributes (such that a person has different elements of proof) is burdensome
and less effective. “14
The value of recognising intersectionality in federal anti-discrimination law is not just confined to equal protection and benefit under the law. Developing laws that accurately represent the identity of people with disability is important to promote inclusion by affirming identity and promoting self-determination.
12 Sexual Health & Family Planning Australia, Improving Sexual and Reproductive Health for People with a Disability (2013). 13 Hidden Forces, Shine a light on Reproduction Coercion White Paper (2018). 14 Australian Human Rights Commission, Discussion Paper: Priorities for federal discrimination law reform (2019) (Discussion Paper, August 2019) 6.
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1.2 Addressing failures in, and impediments to, reporting, investigating and responding
to violence, abuse, neglect and exploitation of people with disability
Inherent in the increased risk of abuse against people with disability are the communication barriers which impact the ability of people with disability to effectively report abuse. As a corollary, the lack of training, equipment and resources provided to investigative response teams, support workers and other service providers, also means that they are ill equipped to address any communication barriers and provide effective response management to reports of abuse.
Victoria Police have developed guidelines for disability service providers and the Victoria Police in responding to allegations of abuse involving people with disability (the Guidelines).‘° The Guidelines note that the reasons for under-reporting of abuse by persons with disabilities include (but are not limited to);
a) fear of reprisals from carers, family members or service providers; b) belief that allegations will not be taken seriously; (
(
(c) fear of not being believed;
(d) lack of knowledge about how to make a report; and (
e) lack of knowledge that they have been abused. Aptly stated in the Guidelines is that:
“Allegations of abuse of a person with disability should always be taken seriously. In addition to the heightened risk of people with disabilities being victims of abuse, it is important to acknowledge the person’s feelings about themselves and their willingness to report in the
future may be influenced by initial reactions to their allegation” ’©
In addressing the barriers identified, the Guidelines set out that following factors that should be
taken into account when responding to a report of abuse;
18 Victoria Police, ‘Responding to allegations of abuse involving people with disabilities guidelines’ https://providers.dffh.vic.gov.au/responding-allegations-abuse-involving-people-disabilities. 18 Ibid 18.
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(a) take all reports seriously and take the time to find out as many details as possible about the abuse. Such actions will demonstrate a commitment to building trust and confidence amongst people with disability and reducing crime against persons with disabilities; (b) not to make assumptions or use stereotypes about what a person is capable of even if the person’s capacity to take part in police or Court processed appears limited; (c) consider speaking with the person in an environment which fosters feelings of safety for the person involved, such as their home or a Neighborhood Justice Centre; (d) adopt flexible communication processes to assist the person involved in communicating with the service provider, family member or police; and (e) consider whether a third-party support person should be present when discussing the allegations and ensure that the third-party support person is also not unduly influencing that person or limiting their ability to freely report abuse
VWL supports the development and broader implementation of these guidelines in the disability sector, to encourage more effective reporting and responses to allegations of abuse against persons with disabilities. VWL recommends that, to assist in implementation of such Guidelines that training and education is provided to disability service provides, hospital staff, members of the broader health care profession, protective services and community groups to ensure that if an report of abuse is made, that persons have the correct knowledge and training to assist a person in making a report and responding to the allegations. VWL proposes that the current Guidelines could be used as the building blocks for the development of a more comprehensive guidelines, noting that adaption may be necessary for different community groups and the role they may play in receiving reports of, and responding to, allegations of abuse.
1.3 Promoting a more inclusive society Promoting a more inclusive society is critical to reducing the inequality, discrimination and exploitation experienced by people with disability. The Royal Commission’s Issues Paper ‘Promoting inclusion’ highlights that:
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“Research has shown that the benefits of inclusion, both for people with disability and the wider society. However, promoting an inclusive society in Australia is a continuing challenge and this work is far from complete. “17
Since the deinstitutionalisation of people with disability starting in the late 1970s, Australia has undertaken a process of promoting greater inclusion of people with disability. This includes through the introduction of the Disability Discrimination Act 1992 (Cth) and various state-based anti-discrimination laws, the ratification of the Convention on the Rights of Persons with Disabilities, the introduction of the National Disability Insurance Scheme Act 2013 (Cth) and the development of the National Agreement on Closing the Gap.
The private sector has also played a role in implementing targets, adjusting work arrangements and promoting accessible environments for people with disability to better participate in the workplace.
Broadly, promoting an inclusive society requires: (a) The deconstruction of perceptions of people with disability as people with specific impairments and moving towards a model that focuses on the disabling barriers faced by people with disability and on the inherent dignity of the human being; (b) removing structural exclusion from public life, including from transport, social amenities, communication platforms and technologies, and public services so that social and economic structures are accessible to all people on an equal basis; (c) empowering people with disabilities to take up opportunities to be socially responsible and productive members of society; (d) calling out instances of discrimination and exclusion, and ensuring that complaints frameworks are accessible and fair; (e) recognising intersectionality and developing legal frameworks that have the capacity to meaningfully respond to experiences of intersectional discrimination; and (f) acknowledging economic, social and cultural ties that inherently bind people in our community regardless of ability.
17 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Issues Paper
‘Promoting inclusion’ December 2020, 2.
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Workplace inclusivity Creating inclusive workplaces that are accessible, free from discrimination and exclusion and offer equal access to meaningful work to all is fundamental to removing structural exclusion and empowering people with disability to enjoy their right to live free from violence, abuse, neglect and exploitation. Preventing and responding to discrimination, violence, abuse, neglect and exploitation against people with disability in the workplace requires employers to:
(a) have formal and accountable processes in place for making reasonable adjustments, including processes for seeking feedback post-adjustment; 18 (b) provide an accessible recruitment and interview process that enables people with disability to effectively apply for jobs and undertake an interview process19; (c) commit to and promote a culture of diversity and inclusion, including flexible working protocols for those with disabilities; and (d) implement victim-centred mechanisms that ensure complaints are adequately considered and resolved.
When people with disability experience and report discrimination or exploitation in the workplace, there must be response frameworks and processes that robustly protect their rights and contemplate consideration for people with multiple protected attributes who then experience discrimination on the basis of those attributes.
Conclusion
People with disability experience unique forms of abuse. These include physical, sexual, psychological, emotional and financial abuse, as well as neglect, and specific forms of coercion rarely experienced by people without disability. For women with disability, this experience of abuse is compounded by intersectional forms of oppression and discrimination.
A range of reforms are necessary to prevent and better protect, people with disability from experiencing violence, abuse, neglect, and exploitation. To this end, VWL urges for the adoption of initiatives which seek to:
18 Raymond, M., Olsen, E. J., and Ainsworth, S. et al. Improving Access and Inclusion in Employment for People with Disabilities, Centre for Workplace Leadership (2019). 19 Ibid.
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(a) Increase knowledge by expanding training and education across schools and workplaces, to identify and respond to abuse. This is particularly important for the healthcare sector, police and other frontline workers who are often best placed to identify abuse;
(b) Address barriers to reporting abuse;
(c) Promote inclusive workplaces and societies; and
(d) Reform federal anti-discrimination legislation to recognise that people experience
discrimination based on multiple and co-existing forms of oppression.
VWL Law Reform VWL Diversity and VWL Justice Committee
Committee Inclusion Committee Amanda Emonson
Stephanie Koumbarakos Amy Pereira Committee Co-Chair
Claire Rapson - Committee
Co-Chair
Andrea de Silva - Committee