Submission 16 — Australian Lawyers Alliance — Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability | External submission

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Lawvers

AUSTRALiAN :

LAWYERS j

AlliANCE

Royal Commission into Violence, Abuse,

Neglect and Exploitation of People with

Disability

Public submissions

20 April 2020

Suite 5 Level 7, 189 Kent Street, Sydney NSW 2000 I GPO Box 7052, Sydney NSW 2001 I ABN 96 086 880 499 T - +61 2 9258 7700 I F - +61 2 9258 7777 I E - enquiries@lawyersalliance.com.au IW - www.lawyersalliance.com.au Protecting and promoting justice, freedom and the rights of the individual

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Who we are
Introduction
ToR (e): All forms of violence against, and abuse, neglect and exploitation of, people with disability, whatever the setting or context
Violence and abuse
Exploitation
Appropriate regulation
ToR (f): All aspects of quality and safety of services, including informal supports, provided by governments, institutions and the community to people with disability, including the National Disability Insurance Scheme (NDIS) and the NDIS Quality and Safeguarding Framework agreed by all Australian Governments in 2017
The problems with the NDIS planning process
The problems with the NDIS review process
Appeals of NDIS internal reviews to the AAT
Delivery of NDIS services to Aboriginal and Torres Strait Islander peoples
Delivery of NDIS services to people in rural and remote areas
Delivery of NDIS and aged care services to people with disability and people living with dementia
Place of common law and tort law in driving high-quality disability services
The place of common law
Why is it a useful vehicle?
Litigation: An empowering medium to improve quality
Litigation: An empowering medium for people with disability
Australia’s tort system: Increasing its efficacy
Legal advocacy for people with disability
ToR (h): The critical role families, carers, advocates, the workforce and others play in providing care and support to people with disability
Addressing unequal pay
Addressing underemployment
Addressing casualisation
Regulation of labour hire
Disability care provided by allied health professionals
ToR (i): Examples of best practice and innovative models of preventing, reporting, investigating or responding to violence against, and abuse, neglect or exploitation of, people with disability33 A human rights approach to the delivery of disability services

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Australia’s obligations under OPCAT extending to disability services …………………………………… 33

A federal human rights charter that requires disability and NDIS services to comply with human rights ……………………………………………………………………………………………………………………………36

Conclusion …………………………………………………………………………………………………………….. 39

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Who we are

The Australian Lawyers Alliance (ALA) is a national association of lawyers, academics and other

professionals dedicated to protecting and promoting justice, freedom and the rights of the individual.

We estimate that our 1,500 members represent up to 200,000 people each year in Australia. We promote access to justice and equality before the law for all individuals regardless of their wealth,

position, gender, age, race or religious belief.

The ALA is represented in every state and territory in Australia. More information about us is available

on our website.?

The ALA office is located on the land of the Gadigal of the Eora Nation.

1 Australian Lawyers Alliance (Website). Accessed on 19 July 2019 <www.lawyersalliance.com.au>.

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Introduction

1 The ALA welcomes the opportunity to provide a submission to the Royal Commission into

Violence, Abuse, Neglect and Exploitation of People with Disability (the Royal Commission). Des This submission will focus on the following Terms of Reference (ToR):

e. all forms of violence against, and abuse, neglect and exploitation of, people with disability, whatever the setting or context;

f. all aspects of quality and safety of services, including informal supports, provided by governments, institutions and the community to people with disability, including the National Disability Insurance Scheme (NDIS) and the NDIS Quality and Safeguarding

Framework agreed by all Australian Governments in 2017;

h. the critical role families, carers, advocates, the workforce and others play in providing care and support to people with disability;

i. examples of best practice and innovative models of preventing, reporting, investigating or responding to violence against, and abuse, neglect or exploitation of,

people with disability.

ToR (e): All forms of violence against, and abuse, neglect and exploitation of, people with disability, whatever the setting or context

The ALA abhors and strongly condemns all forms of violence against, and abuse, neglect and exploitation of, people with disability, whatever the setting or context.
The ALA believes that the right to live a life free from violence, abuse, neglect and exploitation is a basic human right, and that this right should extend to all members of the community

including people with disability.

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5; The ALA has been and remains a consistent advocate for an Australian Charter of Human Rights. Our advocacy? has demonstrated how a legislative charter of rights can lead to significant, positive, life-changing outcomes for some of the most vulnerable people in our community. The ALA submits that a federal human rights charter could lead to similar protections across the entire Australian community, resulting in improvements in the quality

of service delivery in the disability sector.

Recommendation 1

That the Royal Commission endorse the call for an Australian Charter of Human

Rights, with specific provisions related to the rights of people with disability.

The ALA is concerned that unless protections are put in place, the funding decisions of the NDIS may lead to increased opportunities for violence against, and abuse and exploitation of,

people with disability. Some examples appear below.

Violence and abuse

ds Shocking examples of violence against people with disability — often perpetrated in their own home — appear all too regularly in the media. Worse, those responsible for the violence or

abuse are often not strangers, but those in positions of trust.

Factors which may increase the risk of violence or abuse against people with disability may include:

e The physical or personal nature of the personal care work required, and the level

of dependence on that support;

e The consistency and quality of staff support — including the high reliance on agency staff, access to competent and appropriately qualified staff, staff turnover

rates;

e The physical layout of the facility or environment;

¢ Communication limitations; and

2 See for example https://www.lawyersalliance.com.au/documents/item/1618.

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e Reduced access to other forms of support, such as family or social contacts,

resulting in isolation.

The ALA believes that, as the primary funding body for disability service provision, the NDIS has an obligation to ensure that the services it is funding do not inadvertently create an

environment in which a culture of violence and abuse can exist.

Practical steps the NDIS could adopt include: e Ensuring they have service procurement processes that prohibit inappropriate

restrictive practices;

e Ensuring that NDIA staff are trained in identifying the outward signs of violence,

and abuse in all its forms; and

e Ensuring they have service procurement processes with strict requirements in relation to appropriate staffing levels, staff training and qualifications (please

refer to our response to TOR (h)).

Exploitation

The United Nations Convention on the Rights of People with Disabilities? states that a signatory state must:

“.. recognise the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities.’

People with disability are often exploited in the workforce. In a recent report by the NDIS Participant Employment Taskforce, the Independent Advisory Council (IAC) noted that:

‘The majority of NDIS participants in employment do not however earn a living wage with only 41% of 15-24 year olds in a paid job in open employment at full award wages and a further 14% in open employment at less than full award wages. The

3 https://www.un.org/disabilities/documents/convention/convoptprot-e.pdf; Article 27, p.19.

13;

a BY

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corresponding percentages for the 25 and over cohort are lower at 33% and 10%.’ [emphasis added]

While the IAC does not broach these figures in terms of exploitation, they paint an uncomfortable picture of the world of work for many people with disability. Even when it is

possible to find work, it is often at rates lower than award expectations.

In the NDIS’s attempts, through the planning process, to satisfy participants’ goals to enter the workforce, it is important that there are checks and balances in place to ensure that the work

and the workplace are appropriate and not exploitative. Practical steps the NDIS could adopt include:

e Ensuring that their procurement processes prohibit the use of goods or service

providers that exploit people with disability; and

e Ensuring that assistance in achieving employment provided as part of the

planning process does not perpetuate exploitative employment processes.

Additionally, people with disability are often susceptible to financial exploitation. This can take

many forms. Victoria’s disability abuse prevention strategy offers the following descriptors:

‘The misuse of a person’s assets, property, possessions and finances without their consent. It includes: — denying a person the use of their own assets, property, possessions and finances

— theft, fraud, exploitation and pressure in relation to assets, property, possessions and

finances

— obtaining assets through deception. This also includes financial abuse perpetrated by other people with a disability.

The NDIS is ideally placed to role model how systems and process should not inadvertently

foster a culture of violence, abuse, neglect or exploitation.

4 https://www.ndis-iac.com.au/s/IAC-Employment-Taskforce-Submission-April-2019.pdf; p.4.

Derived from: <https://dhhs.vic.gov.au/sites/default/files/documents/201802/Victoria%27s%20disability%20abuse%20preve

ntion%20strategy.docx>; p.6.

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Please refer to our response to ToR (h) for more information on the potential impacts of disability workforce structural issues, including the potential for such issues to enable violence

and exploitation to thrive.

Appropriate regulation

It is essential that appropriate regulation is in place to ensure that disability service providers

those working in the NDIS system and more broadly- are acting in the best interests of their clients. Appropriate resourcing for regulators must be favoured as a strategy over proposals

for the industry to regulate itself.

The ALA encourages the Royal Commission to examine whether adequate deterrents are in place to ensure that service providers are not fostering a culture of violence or exploitation.

Issues to consider might include:

Resourcing for regulators;
Specific training for police; and • Ensuring that ‘red tape reduction’ initiatives do not come at the expense of

appropriate checks and balances placed on employers and service providers.

Please refer to our response to ToR (i) for more information on developing and implementing a human rights-based approach to service provision.

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ToR (f): All aspects of quality and safety of services, including informal supports, provided by governments, institutions and the community to people with disability, including the National Disability Insurance Scheme (NDIS) and the NDIS Quality and Safeguarding Framework agreed by all Australian Governments in 2017

The problems with the NDIS planning process

The quality of NDIS service provision starts with the planners. It is the planners who determine an individual’s entitlement to access various supports, and the quantum of the support to be

made available to that individual.

The experience of ALA members and their clients is that there is a clear skills and experience deficit among NDIS planners. This is undermining the effective operation of the scheme and

causing significant problems for participants.

In our view, the primary problem is a lack of understanding of participants’ care needs, the support available, and the legislation and rules that underpin the NDIS. This results in plans being approved that do not meet the participants’ needs. Other problems arising from the lack of skills and experience among planners include inappropriate communication and delays in

assessing and approving care plans.

The problem is particularly stark for participants with complex care needs. These are also the most vulnerable cohort of participants. An appropriate, comprehensive and tailored care plan

for such a participant demands a planner with sufficient training and significant experience.

In many cases, there also seems to be a fundamental lack of understanding among NDIS planners of the legislation and rules that underpin the scheme. This leads to decisions that

EE undermines the quality and appropriateness of the plans.

The background and experience of planners appear to be variable. While there are no doubt many planners who have the appropriate skills, there are many who do not. Anecdotally, we have been told that a participant’s experience with the NDIS is largely defined by their planner

— if you get a ‘good’ one, you are likely to have a positive experience. However, if you get a

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‘bad’ one, your plan is likely to be neither sufficient nor appropriate, forcing you down the path of internal and external review.

It is entirely inappropriate that a participant's experience with the NDIS, and their prospects

of receiving an appropriate plan, should be defined by chance. Yet this is exactly what seems to be occurring given the huge variance in capacity among the planners.

Poor planning also results in a significant administrative burden and financial cost for the NDIS because it increases the numbers of complaints and requests for internal review. It also increases the numbers of external appeals to the Administrative Appeals Tribunal (AAT) and Federal Court.
The ALA submits that urgent action is required to increase the skills and capacity of NDIS planners through training and professional development. The impact of disability can be complex and nuanced, and understanding the care and support needs of those living with disability requires specific training. While we acknowledge the barriers to hiring planners who already have the requisite experience, the NDIS must do more to train and develop those they do hire.
ALA members have reported significant delays in the planning process. This suggests that there are insufficient planners to meet demand. Such delays are clearly inappropriate when participants are relying on NDIS funding for their care and support needs.
Participant involvement in the planning process is essential and its absence undermines trust in the scheme. Participants who feel isolated or marginalised are also more likely to be dissatisfied with the outcome. This is contrary to the very principles of the scheme. It also increases costs and the administrative burden on the scheme due to high levels of complaints and reviews.
Anecdotal experience suggests that some participants feel like they do not have an adequate ‘voice’ in the process. They report providing instructions and input to the planner, then receiving a plan that (from their perspective) bears little resemblance to what was discussed in the planning meeting. Reports of mistakes or misunderstandings are common. However, once a plan is approved it is very difficult to have it changed.

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TheALA believes that the idea of draft plans has merit as it would allow participants to provide further input and instruction before the plan is approved. It would also provide an opportunity

to correct errors or misconceptions.

The ALA draws the Royal Commission’s attention to the very real dangers to the wellbeing of scheme participants, and delays in receiving supports due to the planning process. According

to recent media coverage:

‘In a response to a question on notice, the National Disability Insurance Agency told Senate estimates that between 2016 and 2019, 1,279 people died “between submitting an access request and receiving supports under the National Disability

776

Insurance Scheme”.

The ALA notes that the Joint Standing Committee on the NDIS’s interim report on their investigation into the planning process has made a number of significant recommendations aimed at ensuring better outcomes for participants.’ The ALA submits that the Royal Commission is well placed to advocate for Government acceptance of these

recommendations.

The problems with the NDIS review process

The internal review process fails to provide an accessible, efficient and effective mechanism for challenging incorrect decisions, changing plans and resolving disputes. It is the experience of ALA members that real change is only effective once the internal review process has finished

and the external review process is engaged.

Asa result, the internal review process provides only a nominal level of accountability. Decisions that are clearly wrong [Pre not corrected, forcing participants into the external

review process to effect change.

Anuncharitable assessment is that the internal review process is only effective as a barrier to change and accountability, tiring and frustrating participants to the point of giving up. Such a

® <https://www.theguardian.com/australia-news/2020/jan/15/ndis-minister-claims-no-one-has-died-waiting for-the-scheme-despite-agency-revealing-1279-deaths>.

7<https://parlinfo.aph.gov.au/parlInfo/download/committees/reportjnt/024350/toc_pdf/NDISPlanninginterim Report.pdf;fileType=application%2Fpdf>; p.vii.

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conclusion is not without evidence or merit because the NDIA’s handling of internal reviews

has been  problematic.  For example,  the Commonwealth Ombudsman  received 400

complaints about the NDIA’s handling of reviews in an 18-month period to January 2018, 8 representing 32.5% of all complaints about the NDIS.

There are a number of problems that make the review process so ineffective. It is generally unclear whether the person undertaking the review has any additional expertise or experience in disability support and care needs. If this additional experience does not exist, the problems created by the original planner’s lack of expertise are simply replicated. In our experience, this is particularly problematic in cases involving catastrophic disability and complex care needs.
The ability of participants to obtain additional expert evidence about their needs (for example, from an occupational therapist) is also extremely limited in most cases. It is therefore

uncommon for the person conducting the internal review to have access to any new evidence that might better inform their decision.

Finally, there seems to be significant confusion over the correct interpretation of the legislation and associated instruments across the N DIA. This leads to an inconsistent application of the rules and different outcomes depending on who is making the decision at any point in time.
There have also been significant problems with delays during the internal review process. This 9 was highlighted by the Commonwealth Ombudsman in its 2018 report. While participants must file a request for a review within three months of receiving a notice of the decision, there is no timeframe imposed on the NOIA to actually complete the review. Many participants

10       report waiting months for any response,  by which time their current plan may have expired

and the process has to start again. This is another example of the process providing limited accountability.

The Commonwealth Ombudsman also highlighted a number of other problems with the internal review process, including participants being encouraged or warned not to request a

8 Commonwealth Ombudsman, ‘Administration of reviews under the National Disability Insurance Scheme Act 2013’, May 2018, 2.3.

9 Commonwealth Ombudsman, ‘Administration of reviews under the National Disability Insurance Scheme Act 2013’, May 2018.

10 Ibid.

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review,** requests for a review triggering a new plan, which restarts the whole process,” and

the NDIA providing incorrect advice about review rights.?

The ALA notes with optimism the Government’s recent commitment to an NDIS Participant Service Guarantee to:

‘Introduce a new NDIS Participant Service Guarantee — setting new standards for shorter timeframes for people with disability to get an NDIS plan and to have their plan reviewed, with a particular focus on children, and participants requiring specialist

disability accommodation (SDA) and assistive technology.”*

With regards to ‘streamlining’ the review process, the ALA is concerned by the chosen terminology. This process must be thorough, robust and detailed, which does not necessarily

mean it can or should be ‘streamlined’.

Recommendation 2

That to make the review process more accessible and effective the following

measures should be implemented:

e Ensure that the decision-maker has specialist experience and qualifications, and has access to sufficient and thorough evidence from which to make an informed

decision;

e Provide greater accountability for the NDIA when internal review decisions are subsequently overturned in the AAT process (for example, by obliging the NDIA

to pay a participant’s legal costs);

e Reduce the number of review requests by addressing the problems with the

planning process; and

1 Ibid 4.34. ® Ibid 4.30. 3 Ibid 4.16.

14 https://www.liberal.org.au/our-plan-support-people-disability.

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Implement legislated time limits for the completion of an internal review, with the participant’s request being upheld should the NDIA fail to comply.

In addition to being contrary to the principles of the NOIS, the problems with the review process are also extremely costly. Firstly, there is an administrative burden associated with

each complaint. Secondly, the ineffectiveness of the review process leads to increased

numbers of participants seeking external review in the AAT. The NOIA is invariably represented

by private insurance  legal firms  in  this process and thus incurs significant amounts of

otherwise avoidable legal costs. If the initial planning and internal review processes are robust

and thorough, then the reliance on the review system would be greatly reduced.

Appeals of NDIS internal reviews to the AAT

48.     If the original decision  is affirmed in the internal review process, or the participant  is not

satisfied with the extent of any variation, a participant has 28 days to file an application in the

AAT. This can only happen once an internal review has been conducted.

The AAT is a ‘no cost’ jurisdiction (that is, the unsuccessful party is not obliged to pay the legal fees arising from the dispute) and is designed to be a conciliatory process.
AAT appeals are case managed by the Tribunal and can involve a number of preliminary case conferences and alternative dispute resolution (AOR) via a conciliation conference. If the

matter does not resolve at a conciliation conference, it will be listed for hearing by the

Tribunal. Typically, the NOIS is legally represented by large and skilled legal firms. However,

unless a participant has engaged their own legal representation, they will be self-represented.

It is also open to a participant to put new evidence to the NOIA through this process, which

may take the form of new expert evidence or more evidence from the participant and/or their

support network.

There are a number of problems with the AAT process that undermine its efficacy and fairness. Firstly, the ‘no costs’ nature of the AAT largely prevents law firms from offering a ’no win, no

fee’ service in which the costs are recovered from the unsuccessful party, precluding most

participants from accessing legal representation because of the prohibitive cost of paying

themselves.  Legal Aid has received some funding  for these appeals but resources are

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notoriously scarce. A number of disability advocacy groups have also been funded to provide support but most are only able to provide advice rather than formal legal representation.

Most participants will therefore be self-represented. However, the value of the support under dispute can amount to tens or hundreds of thousands of dollars per year. Many matters involve complex disabilities and high-care needs, and require sophisticated expert evidence, which most participants will not be able to afford or arrange.
Further, the legislation and rules are difficult to interpret, subjective, and may involve complex questions of law. Some disputes involve questions of statutory interpretation, or the interaction between the NOIS and other sources of support (for example, Medicare and the health system). This further exacerbates the gross unfairness of forcing a participant to represent themselves against a large commercial insurance legal firm.
The barriers to participants engaging appropriate legal representation require particular attention. As previously noted, the NOIA engages private firms to represent them in every AAT appeal. This is both extremely costly and grossly unfair when the participants themselves are rarely represented. It is also entirely at odds with the principles of the NOIS.
Simply put, the process is grossly weighted in favour of the NOIA and completely undermines any sense of trust and accountability among participants.
The appeals process comes at a significant cost to the NOIS. However, it is also important to highlight that such a flawed process does nothing to improve decision-making within the NOIA. Instead of encouraging good decision-making (and thereby minimising legal disputes), this

inequitable process simply protects the NOIA from  accountability.   It  also slows the

development of jurisprudence, as the scope and nature of disputes will not have been narrowed by previous decisions. This leads to unnecessary costs for the NOIA and ongoing uncertainty and hardship for participants.

While the ‘no costs’ status of the AAT also provides protection for participants should their appeal be unsuccessful, the balance of power remains grossly weighted in favour of the NOIA. Urgent action is required to improve the planning process, break down the barriers to participants engaging legal representation and ensure that the external review process provides a transparent and robust accountability mechanism.

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One option is to make the NOIA liable for legal costs where they have unsuccessfully defended an AAT appeal. While we accept that the additional cost this represents may not be palatable,

it would allow participants to access legal representation and level the playing field. Further,

it is also likely to lead to savings in other areas; a penalty would encourage the NOIA to improve

decision-making at first instance and in the internal review phase, which would force a more

considered view on which appeals should be defended.

Recommendation 3

That the NDIA be liable for legal costs where they have unsuccessfully defended an

AAT appeal.

The ALA is concerned that the scheme as it is currently structured replicates the inequities and frustrations of the past. In particular, the planning process is deeply flawed, leaving

participants with a patently unsatisfactory choice: either accept a substandard plan or expend

a tremendous amount of emotional and  financial  capital  fighting the NOIA through an

inefficient and unfair review system.

61.   This effectively creates different classes of participants -  those who have the understanding

to identify a bad plan and those who do not. Those who have the emotional and financial

resources to pursue bad decision-making and those who do not. This is exactly the problem

that the NOIS was supposed to address. A minority of participants are able to arrange support,

obtain the required expert evidence and fund legal representation. However, the issue is not

whether it is possible but whether it is a fair demand to make of participants. The answer is

unequivocally in the negative.

Delivery of NDIS services to Aboriginal and Torres Strait Islander peoples

According to data from the 2014-15 National Aboriginal and Torres Strait Islander Social Survey (NATSISS), 45% of Aboriginal and Torres Strait Islander people report living with

disability or long-term health conditions. The NATSISS also found that 7.7% of Aboriginal and

Torres Strait Islander people reported having severe and profound disability.

This is 2.1 times the rate for non-Aboriginal and Torres Strait Islander people. The prevalence of disability is higher among Aboriginal and Torres Strait Islander women (47% reported living

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with disability or long-term health conditions, with 8.4% experiencing severe and profound disability, compared to men: 42.9% and 7.1%).

According to the First Peoples Disability Network (FPDN), the majority of Aboriginal and Torres Strait Islander people with disability live in poverty, lack access to disability-appropriate housing, and young Aboriginal and Torres Strait Islander people with disability often cannot attend school or can only participate in a limited way because the local school cannot accommodate their disability.15
According to Avery, the number of Aboriginal and Torres Strait Islander people with severe and profound disability is particularly relevant to the implementation of the NDIS in Aboriginal and Torres Strait Islander communities.16 The FPDN reports that Aboriginal and Torres Strait Islander people with disability often fail to get NDIS plans or are given seriously under resourced plans. One major reason for this is the absence of meaningful advocacy support for Aboriginal and Torres Strait Islander people with disability to access the NDIS.17

66.  The  difficulties of accessing  appropriate NDIS plans  is  particularly serious in remote

communities, where 44% of Aboriginal and Torres Strait Islander people report living with disability or long-term health conditions and 7.5% report having severe and profound disability.

The ALA is concerned that the lack of services in remote Aboriginal and Torres Strait Islander communities means that either the community itself must bear the cost of providing necessary support services to Aboriginal and Torres Strait Islander people with disability, or that those people must leave the community and their Country in order to access the necessary services. The latter option presents a difficult dilemma for Aboriginal and Torres Strait Islander people with disability. The ALA submits that the NDIS needs to be prepared and equipped to provide necessary support services in remote communities so that Aboriginal and Torres Strait Islander people with disability can continue to participate in community, cultural and ceremonial activities.

15 Griffis, Damian (2019). In traditional language, there is no word for disability. The Guardian, 21 November 2019.

16 Avery, S. (2018). Culture is inclusion: A narrative of Aboriginal and Torres Strait Islander people with disability. First Peoples Disability Network (Australia) July 2018, p.77.

17 Griffis, n 15 above.

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The ALA is also concerned about the failure of the NDIS to meet the specific needs of Aboriginal and Torres Strait Islander people with disability who live in remote areas. The ALA has heard reports that NDIS plans for some of these Aboriginal and Torres Strait Islander people fail to address some of their specific needs, including access to basic amenities, the ability to afford food and/or electricity, and the importance of maintaining contact with culture, environment 18 and community.
In Culture is Inclusion: A narrative of Aboriginal and Torres Strait Islander people with disability, Avery shares an example provided by an Elder from a remote community in which people had been approved for substantial packages from the NDIS but couldn’t spend the allocated funding due to a lack of services. The Elder recounted that these same people were starving and homeless, but could not spend their allocated package money on basic amenities such as food and blankets as they were not considered by the NOIA as ‘reasonable and necessary’.19
According to Avery: ’Responding to the prevalence and profile of Aboriginal and Torres Strait Islander

people with disability will require a service model which is realistic to issues in remote

service delivery, where there may be a small number of people with disability living in

any given remote community, but also characterised by a cultural model of disability

support which can benefit all Aboriginal and Torres Strait Islander people with 20 disability regardless of where they live.’

71.   Avery also observes that the lack of access to  disability support services  in remote

communities has a significant discriminatory effect on Aboriginal and Torres Strait Islander women. According to his research, many men who acquire disability while living away from their Country are able to return to their Country and communities because Aboriginal and Torres Strait Islander women will often assume carer duties, effectively making up for the lack of formal support services that are available in remote communities. However, women with disability do not benefit from such informal carer roles from men to the same extent and are

18 Stevenson, Kylie and Howie, Tamara (2019). The land the ND/5 forgot: the remote Indigenous communities losing the postcode lottery. The Guardian, 5 November 2019.

19 Avery, n 16 above, p.157.

20 Ibid 91.

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therefore often forced to leave community and Country in order to access their required support services. 21

Avery notes that this produces a gender inequity in which the burden for compensating for lack of services in remote communities falls predominantly on Aboriginal and Torres Strait Islander women, either through the provision of informal care, or in being forced to leave communities and Country in order to access necessary support services. 22
The ALA is also concerned that many Aboriginal and Torres Strait Islander people with disability living in regional or remote areas face significant barriers in being approved for NDIS plans as the NDIS increasingly requires individuals with disability to provide medical proof of their disability, often necessitating assessments from medical specialists. Those living in remote locations are often unable to access such medical specialist assessments or are unable 23 to afford the travel to obtain such assessments.
The ALA is also concerned about reports that the NDIS website fails to provide material in any Aboriginal and Torres Strait Islander languages. 24 This means that access to essential

information on the NDIS in remote communities is limited.

The ALA endorses the Ten Priorities to Address Disability Inequity developed by the FPDN. These are:

Invest to create an Aboriginal Community Controlled Disability Service Sector for the provision of disability supports by Aboriginal and Torres Strait Islander people with disability for their communities;
Address the barriers facing Aboriginal and Torres Strait Islander people in accessing the NDIS;
Prioritise timely intervention to ensure supports and services are provided, and are available over the long-term, and at the right time in people’s lives;

21 Ibid 93.

22 Ibid.

23 Griffis, n 15 above.

24 Stevenson and Howie, n 18 above.

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Recognise and value the existing knowledge, skills and expertise within Aboriginal and Torres Strait Islander communities;

• Resource a community-directed research strategy which specifically focuses on

Aboriginal and Torres Strait Islander disability;

Endorse and support peer-to-peer leadership to ensure that Aboriginal and Torres Strait Islander people with disability lead the engagement with community

themselves;

Develop and implement an access to justice strategy for First People with disability, particularly for those with cognitive impairment, sensory and intellectual disability;
Develop and implement programs for inclusive education and employment for First People with disability in line with national strategies for their full social participation;
Create links between the National Disability Strategy and Closing the Gap Framework for coordinated policy and programs at the Commonwealth, state and local levels in

partnership with Aboriginal and Torres Strait Islander people with disability and their

organisations; and

Develop an Aboriginal and Torres Strait Islander Disability Performance Framework for the independent monitoring of the social and economic outcomes of Aboriginal

and Torres Strait Islander people with disability. 25

Delivery of NDIS services to people in rural and remote areas

The precarious position of participants in rural and remote areas has been well documented, as have the challenges associated with effective service delivery. Thin markets are emerging

and becoming entrenched and there is a glaring lack of workforce infrastructure.

ALA members report examples of regional and remote communities where there are no service providers to provide the services that participants need. This means that although

participants have funding, they have no way of spending it. The ALA has also heard that the

25 First Peoples’ Disability Network Australia (2019). Ten Priorities to Address Disability Inequity in Aboriginal

and Torres Strait Islander Communities for the National Disability Strategy and National Disability Insurance

Scheme.

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transport support offered through the NDIS does not adequately address the needs of those

living in rural and remote areas.

Urgent intervention is required to address the workforce infrastructure problems. This must include more flexible approaches to planning and funding.

Delivery of NDIS and aged care services to people with disability and people living with dementia

The ALA notes that a person must be aged under 65 years to apply for services under the National Disability Insurance Scheme (NDIS). Once an NDIS participant turns 65, the person is

entitled to continue receiving services under the NDIS. However, the person will no longer be

eligible to receive those services if they apply for and receive Commonwealth-supported home

care or residential care services on a permanent basis.

The ALA submits that it is very difficult for a person in the position outlined above to obtain adequate information about the services they may be entitled to under the alternate schemes.
Under the National Disability Insurance Scheme Act 2013 (the NDIS Act), there is a formalised system for NDIS participants to be appointed an independent advocate to assist them to

exercise choice and control, and to act as their spokesperson in matters affecting the person

as they navigate the NDIS scheme. The NDIS Act acknowledges the important role of advocates

(including independent advocates) and other representatives of persons with disability. It

requires registered NDIS providers to have complaints management and resolution systems in

place that provide  for co-operation  with, and  facilitation  of, arrangements with these

advocates (including independent advocates) and other representatives.

Under current arrangements, the independent advocate is not funded once a person ceases to be an NDIS participant by transitioning to the aged care system. The ALA submits that the

advocate should be able to continue in their role in a seamless manner once the person starts

receiving aged care services. The need for an independent advocate will not have changed.

The ALA submits that some aged care providers appoint their own advocates for participants in the aged care system. The ALA submits that it is inappropriate for a person to have an

advocate who is not independent, and who might prefer the interests of their employer - the

aged care provider - over the interests of the person.

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The ALA submits that the existing My Aged Care website and pathway are inappropriate for a person who has been an NDIS participant, due to the complexity of the aged care system and the often lengthy delays in accessing services under it.

85.   The ALA submits that  it  is inappropriate  for most younger people under 65 who are

participants in the NDIS to be accommodated in aged care facilities. The families of some of these people have given evidence at the Royal Commission into Aged Care Quality and Safety about the factors leading to the deterioration of younger people living in aged care facilities. The ALA submits that the voices of those families should be heard. In the past, they have not been heard and nothing has been done.

The ALA submits that people living with dementia require dementia-specific as well as age specific accommodation. A young person with dementia will require an inter-agency approach from the Government in order for the care and support to be appropriate for that person. Where there are private agencies and government-funded companies, they should co ordinate in the same way as allied healthcare teams currently do in hospitals. The ALA submits that the advice and assistance of allied healthcare teams should be sought by the Government in the next year in relation to reform of the aged care system for people with disability.

Recommendation 4

That participants of the NDIS should continue to have a funded independent advocate when they transition to aged care.

Recommendation 5

That alternative accommodation should be provided to younger NDIS participants in the form of housing that is specific to their needs.

Recommendation 6

That the Australian Government should consult with allied healthcare teams at hospitals to create a pathway of a high standard for people with disability, including those who are young, those who are reaching 65, those over 65 and those with dementia. The age of persons with dementia should be taken into account as part of the NDIS plan so that care and support is age-specific.

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Place of common law and tort law in driving high-quality disability services

The place of common law

The ALA submits that the common law plays an important role in improving the safety of disability services and promotes justice for people with disability who have suffered from

abuse or neglect.

Why is it a useful vehicle?

The ALA submits that the common law tort of negligence is a valuable tool in the struggle for justice to protect some of Australia’s most vulnerable people, including those with disability,

as it sets and upholds an appropriate standard of care. The ALA submits that litigation has the

potential to promote quality and safety by imposing sanctions where there are breaches of

protocols and guidelines. Litigation provides effective deterrents; it can expose poor practice

and encourage good practice.

The ALA submits that very few complaints about the provision of substandard care in disability services result in sanctions or disciplinary action. The ALA submits that complaints about the

standard of care in disability services are often managed either internally or externally with a

view to conciliation or to conceal problems.

Litigation: An empowering medium to improve quality

The ALA submits that litigation has the potential to hold providers to account for wrongdoing and to consequently raise the standard of care in disability services. Litigation in medical law,

for example, has frequently served as an effective deterrent to poor practice in healthcare.

Similarly, litigation in disability care is an effective mechanism to force compliance within the

regulatory framework. Financial deterrence is a strong incentive to improve systems; litigation

brought against disability service providers discourages substandard care.

The ALA submits that if the standard of reasonable care in disability services is to improve over time and not remain static and hindered by outdated practices, it is necessary to bring new

cases that challenge the status quo. The ALA submits that the tort system permits various

positions to be tested in court.

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Litigation: An empowering medium for people with disability

The ALA submits that tort law offers more than a compensatory regime: it is potentially an empowering medium for people with disability who have suffered insult, injury, humiliation, distress and a loss of dignity.
The ALA submits that the harm suffered by a person with disability who is injured due to negligence should be acknowledged and apologised for. Tort law gives injured persons the power to choose whether to assert their rights and how to frame their claims. Injured parties may be empowered through their access to a public forum to call the harm-causing defendants to account.

Recommendation 7

The common law is a powerful tool that can be used to improve safety and drive high quality disability services and that this should be recognised by the Australian Government.

Australia’s tort system: Increasing its efficacy

The ALA submits that there is a need to have mechanisms in place to ensure that tort law plays an effective role in regulating the disability service sector.
The system of tort law in Australia contains some barriers for people with disability and their relatives and advocates. Firstly, the ALA recognises that victims of negligence in disability services often rely on families, friends and other advocates to assist them to achieve a remedy in law. Secondly, the victims of negligence arising from substandard practice in the disability service sector are often in the advanced stages of an illness or their lives, and there is a risk that some will not live long enough to achieve a satisfactory and timely outcome due to lengthy delays in the court system. Thirdly, there are statutory limitations on the award of damages. The ALA submits that this should not be an excuse not to act to achieve justice on behalf of people with disability when wrongdoing has occurred.
A lack of economic compensation may be awarded under tort law due to no loss of ‘future earnings’ of people with disability.

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Recommendation 8

That statutory limitations that operate as prohibitive barriers to litigation are reduced for people with disability.

97.   The ALA submits that compensation for abuse that goes beyond a trail of paperwork  is

required. Monetary remedies can restore some aspects of damaged dignity when there are physical injuries but money is not a substitute for being treated with respect and dignity, particularly in the face of social inequalities. The ALA submits that the system must be reviewed to ensure effective remedies for victims of negligence are available.

The ALA submits that introducing specific torts and developing new causes of action may result in disability service providers being held accountable for negligent care - which in turn improves the quality of care.

Recommendation 9

That the tort system in Australia is modified by legislation to refine existing torts and develop new causes of action.

Legal advocacy for people with disability

It is likely that this Royal Commission will receive reports where substandard care has caused

injury, neglect, and other forms of harm to people with disability. The ALA submits that there is a lack of access to justice for people with disability.

The ALA submits that it is important for people with disability and their relatives to be able to discuss a complaint with a lawyer who can provide advice and referral where appropriate. The ALA submits that additional resourcing for specialist legal advocacy services for people with disability is urgently required. The ALA submits that a specific form of human rights advocacy is needed for people with disability.

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ToR (h): The critical role families, carers, advocates, the workforce and others play in providing care and support to people with disability

The ALA is confident that the Royal Commission will receive significant input in relation to the critical role that families and carers play in supporting people with disability. We will therefore

restrict our comments to matters relating to the Disability Services Workforce.

In our experience, the vast majority of those who work in the disability care sector are hardworking, caring, and have the best interests of those they care for at heart.
However, the ALA is concerned about a number of issues that will impact the quality of service provision available to people with disability into the future. These issues include the casualisation of the disability workforce, the deskilling of the disability workforce, and the

changing nature of employment relationships within the sector.

It is evident that a key priority for the Royal Commission should be addressing the working conditions of employees engaged in the sector who, still too often, are subject to insecure,

part-time employment on poor terms and conditions.

The ALA submits that good care outcomes for people with disability will be facilitated by a workforce which has secure, long-term employment on pay and conditions commensurate

with the difficult and sensitive nature of the work they perform.

Small, individual contractors — particularly personal carers — are struggling with the transition to the market-based regime which is the centrepiece of the NDIS’s workforce development plan. Transitioning to a market-based system for personal care provision will not assist in the

reduction of casualisation in the sector’s workforce — if anything, it will exacerbate it.

The disability care sector is in direct competition with other sectors, such as aged care, for quality staff —a situation that will continue to intensify as the NDIS roll out reaches completion.
Strategies to address the growing shortage of workers risk either reducing quality standards or increasing costs, or both. It is absolutely crucial that appropriate levels of funding are committed to this issue. There must not be a ‘lowest common denominator’ approach to the

provision of services to people with disability.

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There must be sufficient and properly qualified staff available Australia-wide. The risks in not adopting that approach are plain:

Unscrupulous profit-driven entities and individuals will enter the market, seeking to exploit the funds available;
Unskilled and untrained people will be recruited to work with people with complex, multifaceted needs. If a carer’s skills and experience are not properly

matched with the needs of the participants, participants will suffer, with

catastrophic consequences; and

Workers will be highly vulnerable to exploitative conduct by their employing entity.

The ALA draws the Royal Commission’s attention to the current trend toward the ‘Uberisation’ of the disability workforce. It is important that the legislative and regulatory frameworks underpinning the NDIA’s work recognise that:

The disability workforce is made up of some of the most vulnerable worker cohorts in Australia;
These vulnerable cohorts of workers are particularly susceptible to actions of unscrupulous employers;
Sham contracting is rife, with workers told they must be independent contractors rather than traditional employees. These employees are then missing out on superannuation, insurance, workers’ compensation, award protections and the other workplace benefits Australian workers have come to expect;
Technology-based employment matching services that actually employ their staff, rather than merely connect contractors to clients, need to be rewarded; and
In order to compete with other care sectors (including health and aged care), the employment conditions within organisations registered to provide NDIS services must be first rate.

The direct engagement of support staff is complex and fraught, and may not be the optimal model for many people with complex care needs.

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The 2019 report Growing the NDIS Market and Workforce Strategy tells us that: ‘The scale at which the workforce needs to grow in a short period is significant. It is estimated that the NDIS workforce will need to increase by up to 90,000 full-time

equivalent (FTE) employees over the next five years.’”®

The NDIS will thus become the main supplier of funds for the employment of disability care professionals. The ALA submits that the NDIA’s procurement processes for service provision should have far higher expectations on the credentials of the applicant firm as an employer of choice. If a firm cannot provide details of their success as a quality employer, they should not

be funded by the NDIS to provide services to people with disability.

The Australian Disability Workforce Report, produced by National Disability Services reveals a number of interesting facts about the disability care workforce:

e About 70% of disability support workers are women, compared to a figure of 46%

in the wider Australian workforce;

e Disability support workers are slightly older than the Australian workforce: 44% are aged 45 years or more, compared to a figure of 39% in the workforce more

generally;

e Most disability support workers are employed as permanent (55%) or casual workers (42%). Very few are fixed-term workers (3%). The number and rate of

casual workers is the fastest growing employment type in the sector;

e Small and medium organisations/employers engage more casuals;

e Organisations with higher female-to-male ratios have higher levels of casual employment and lower levels of permanent employment. In organisations with a majority male workforce, the proportion of permanent employees in those

organisations is 74% and the proportion of casuals is just 22%; and

26 <https://www.dss.gov.au/disability-and-carers-programs-services-for-people-with-disability-national disability-insurance-scheme/growing-the-ndis-market-and-workforce-strategy>; p.10.

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e The turnover rate for casuals has averaged about 1.6 times as high as the

permanent rate and appears to be increasing.”

The ALA draws the Royal Commission’s attention to the following potential suggestions for reform.

Addressing unequal pay

It is imperative that disability care workers are paid what they deserve, and specifically that they are paid a wage that is commensurate with their labour and the particularly difficult nature of their work. As competition between sectors increases, it is important that the

disability sector is able to offer well paid jobs, with good working conditions.

As the primary price setter for the industry, the NDIS plays an important role in determining pay and conditions.

Addressing underemployment

Many aged care positions are now dependent on federal Government/NDIS funding.
Consideration should be given to NDIS funding/service procurement being predicated on more full-time positions or, at least, higher minimum hours for staff.

Addressing casualisation

The ALA advocates for measured changes to address casualisation, through adopting schemes such as augmenting existing rights for workers to request a conversion from casual

employment to permanent employment.

Again, consideration should be given to NDIS funding being predicated on commitment to such schemes.

27 <https://www.nds.org.au/policy/australian-disability-workforce-report-second-edition-highlights-workforce

risks1>.

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Regulation of labour hire

A number of state governments have sought to regulate the labour hire industry, including Queensland and Victoria.
What is currently missing from the legislative framework is labour hire regulation at the national level.
Consideration should be given to the relative merits of introducing a federal regulatory scheme to either ‘cover the field’ of labour hire regulation or to ‘fill the gaps’ of existing state based regulation, to ensure that this practice, which undermines wages and conditions, is limited.

Disability care provided by allied health professionals.

The ALA notes the important role played by allied health professionals in the provision of care for people with disability. We believe there is a greater role that those with specific expertise can and should play in ensuring quality care within the sector.
It is our observation that many NOIA planners seem to lack specific knowledge in relation to the work of health specialists such as physiotherapists and occupational therapists. The expert recommendations from specialists in these fields are, on many occasions, ignored by planners.
The ALA submits that there is a clear deficit of skills and experience with some planners and urgent action is required to remedy this through comprehensive training. This is particularly critical for planners working with participants with complex care needs, whose plans must only be prepared by planners with appropriate experience and training.
The ALA believes that the NOIA should consider sourcing professional development for planners from the relevant heath industry peak bodies. This would be beneficial for all involved.

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ToR (i): Examples of best practice and innovative models of preventing, reporting, investigating or responding to violence against, and abuse, neglect or exploitation of, people with disability

A human rights approach to the delivery of disability services

The ALA submits that a key strategy in ensuring that disability services are safe and of high quality is strengthening the human rights protections within Australia and ensuring that these protections have direct application to the provision of disability and NDIS services. Two

strategies for achieving this are:

a. ensuring that disability services are included within the definition of ‘places of detention’ and are thereby covered by Australia’s obligations under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading

Treatment or Punishment (OPCAT); and

b. enacting a federal legislative human rights charter that follows a dialogue model of human rights protection requiring public authorities, including disability and NDIS

services, to comply with human rights.

Australia’s obligations under OPCAT extending to disability services

The ALA submits that under the recently ratified Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), Australia will have obligations to provide for independent, regular and preventive oversight visits to residential disability services. The purpose of these visits will be to identify and analyse factors that may increase the risk of ill-treatment to residents of such facilities and aim to

eliminate the risk factors of such ill-treatment.

Australia ratified OPCAT in December 2017. OPCAT requires states to establish and maintain a body or framework to visit places of detention in order to undertake ‘preventive inspections’ (a National Preventive Mechanism (NPM)). At the time of ratification, the Australian Government exercised its right under Article 24 of OPCAT to delay the formal establishment of the Australian NPM for three years. In addition, the Australian Government has indicated

that the NPM will focus on what it deems ‘primary places of detention’ such as prisons, youth

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justice facilities, immigration detention, military detention, closed psychiatric facilities and police custody.

The ALA submits that there should be no limit or restriction regarding the categories of ‘places of detention’ that should be subject to visits by Australia’s NPM bodies. Article 4 of OPCAT does not place any limitations or restrictions on the definition of ‘places of detention.’ The open-ended scope of OPCAT provides the benefit of ensuring that places not traditionally seen as detention, but showing evidence of mistreatment, can be subject to the same rigorous monitoring as would be expected of a correctional facility or immigration detention. This includes residential disability services.
The ALA submits that all places where people are kept against their will require visits by Australia’s NPM bodies under this treaty, including aged care facilities, disability institutions and youth detention facilities. The treaty does not restrict its attentions to specific places of detention but applies to all places under the ‘jurisdiction and control’ of the government, including non-traditional places of detention.
Accordingly, the ALA strongly submits that there should be no limit or restriction in legislation regarding the categories of ‘places of detention’ that should be subject to visits by Australia’s NPM bodies. Article 4 of OPCAT is expressed in broad terms and none of the 67 signatory states has placed restrictions on the categories of places of detention that NPMs can visit.
The ALA submits that residential disability services should be considered closed environments in certain circumstances, as they are environments where individuals are often in need of a high level of care. Residents are often dependent on others for the basic necessities of life and their freedom of choice or movement can be restricted or removed altogether.
The role of the NPMs is to monitor all closed environments regardless of whether they are owned and operated by the government or outsourced to the private sector. The ALA is concerned that by limiting or restricting the categories of ‘places of detention’ that should be subject to visits by Australia’s NPM bodies, many closed environments owned and operated by non-state actors and private entities may escape appropriate scrutiny.

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Recommendation 10

That the Australian Government designate residential disability services facilities as places of deprivation of liberty to be inspected by the OPCAT National Preventive Mechanism.

Article 18(1) of OPCAT stipulates that ‘The States Parties shall guarantee the functional independence of the national preventive mechanisms as well as the independence of their personnel.’ In implementing the NPM framework, the Australian Government must ensure that the NPM organisations are structurally independent and are seen to be independent by the community. The NPM must be transparent in all its activities and must report directly to Parliament.
Article 20(c) of OPCAT stipulates that states shall grant the NPM ‘access to all places of detention and their installations and facilities’.
The ALA submits that it is essential the disability service commissioners or disability regulatory bodies that will be considered to serve the function of NPM oversight bodies meet the standard of independence required by OPCAT for an NPM oversight body. This includes being directly accountable to Parliament and having free access to all places of detention and their installations and facilities.

Recommendation 11

That  the  Australian  Government  urgently  review  any   disability  service

commissioners or disability regulatory bodies that will be considered to serve the function of an NPM oversight body, and the NDIS Commission, and assess whether these bodies are compliant with the principles of OPCAT and the Principles of Oversight.

Recommendation 12

That the Australian Government undertake any necessary legislative, policy and procedural changes to ensure that these bodies are compliant with the principles of OPCAT and the Principles of Oversight.

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A federal human rights charter that requires disability and NDIS services to comply with human rights

The ALA submits that it is necessary to strengthen the legislative framework that seeks to protect and promote human rights, in order to provide greater human rights protections for people with disability who rely on disability and NDIS services. In particular, the ALA submits that a federal legislative human rights charter that follows a dialogue model of human rights protection (similar to what exists in the United Kingdom, New Zealand, Victoria, the ACT and Queensland) and specifically requires public authorities to comply with human rights would provide additional protections to people who are reliant on disability and NDIS services.
The ALA submits that a federal human rights charter would be extremely useful in the disability service sector. From a practising perspective, a lawyer would likely welcome the ability to advance their client’s causes legally and practically with a federal human rights charter.
A federal legislative human rights charter could provide additional human rights protections for people who are reliant on disability and NDIS services in four ways:

a) A federal human rights charter would require the courts to interpret all existing legislation and regulations in a manner that is compatible with the protected human rights. This would include all legislation and regulations governing the provision and regulation of disability and NDIS services in Australia.

b) A federal human rights charter would require that when new legislation and regulations are introduced into Parliament, they are to be accompanied by a Statement of Compatibility in which the relevant Minister is required to certify that the proposed legislation/set of regulations is compatible with human rights. This would include any new legislation and regulations governing the provision of disability and NDIS services in Australia.

c) A federal human rights charter would require all public authorities to act in a manner that is consistent with the protected human rights, and to take into account the protected human rights when making decisions. The definition of a ‘public authority’ would include a public or private body whose functions include functions of a public nature. The phrase ‘functions of a public nature’ includes functions of a regulatory nature. This would mean that the regulatory bodies governing the provision of disability, NDIS services and the

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NOIA would have obligations to act compatibly, and make decisions which are compatible, with the rights protected in the charter.

d) A federal human rights charter would require all non-government organisations that perform functions of a public nature to comply with the human rights protected by the charter. This would include non-government organisations that provide disability and NDIS services.

In relation to paragraph 142(c) above, the operation of government and statutory regulatory schemes that govern the licensing, accreditation or regulation of non-government service providers is a mechanism by which government can secure human rights compliance from

non-government  service  providers  undertaking  contracted-out  services. Where those

schemes operate pursuant to legislation, or are operated by a government department or agency as ‘core’ public authorities, they are required to comply with human rights obligations. Given the guidance that has been specified in the Victorian Charter of Human Rights and

Responsibilities Act 2006 (s4(2)(c)), the Australian Capital Territory Human Rights Act 2004

(s40A(l)(c)) and the Queensland Human Rights Act 2019 (s10(1)(c)),  it  is likely that any

statutory or private regulatory schemes are public authorities when performing functions of a regulatory nature.

A similar provision in a federal human rights charter would mean that the regulatory body governing the provision of disability and NDIS services would have obligations to act compatibly, and make decisions which are compatible, with the rights protected in the charter. Accordingly, in fulfilling its own human rights obligations as a public authority, the regulatory authority would need to include requirements for human rights compliance as a precondition for licensing or industry accreditation, including requirements for annual reporting of human rights compliance by organisations as part of them maintaining their licensing or accreditation status. A failure to adhere to the required human rights standards would have adverse consequences for the organisations themselves, including possible cancellation of contracted arrangements or punitive responses from the regulator.
In relation paragraph 142(d) above, a critical element in ensuring that disability and NDIS services are aware of their statutory obligations to comply with human rights is ensuring that the phrase ‘functions of a public nature’ is adequately defined, and that the provision of disability and NDIS services is explicitly included within the definition of that phrase.

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Section 10(3) of the Queensland Human Rights Act 2019 lists particular functions that are defined as being of a public nature, including public disability services. Section 40A(3) of the Australian Capital Territory Human Rights Act 2004 also lists particular functions that are defined as being of a public nature.
The statutory eight-year review of the Victorian Charter of Human Rights and Responsibilities 28 Act 2006 recommended that the Charter be amended to include a similar provision. The

review noted that such a provision was necessary given the continuing uncertainty about whether several non-government organisations are functional public authorities. The review noted that this was a barrier to the incorporation of the Charter in the day-to-day work of these organisations and inhibited the development of a human rights culture.29

The clarification of the phrase ‘function of a public nature’ assists in providing greater certainty to non-government organisations that perform public functions as to their obligations under the legislation.
To ensure the application of statutory human rights obligations to providers of disability and NDIS services, a federal human rights charter should include a similar provision that lists particular functions that are defined as being of a public nature. This should explicitly include the provision of disability and NDIS services.

Recommendation 13

That the Australian Government implement the recommendation from the National Human Rights Committee’s Consultation Final Report in 2009 that Australia adopt a federal Human Rights Act that is based on the ‘dialogue’ model, which sets out a list of human rights and accords the executive, the legislature and the judiciary specific roles in the protection and promotion of those rights, and imposes the obligation to act in accordance with those rights on federal public authorities.

28 See n 2 above, p.62.

29 Ibid p.58.

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Recommendation 14

That the federal Human Rights Act include within the definition of ’federal public

authorities’ those entities that are performing functions of a public nature, and that

the provision of a regulatory function be included within the definition of ’functions

of a public nature.’

Recommendation 15

That the definition of the phrase ‘functions of a public nature’ in the federal Human

Rights Act provide a list of particular functions, which includes the provision of

disability and NDIS services, that are assumed to be of a public nature.

Conclusion

The Australian Lawyers Alliance (ALA) welcomes the opportunity to have input into the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability through

the public submission process.

The ALA makes the following recommendations:
That the Royal Commission endorse the call for an Australian Charter of Human Rights, with specific provisions related to the rights of people with disability.
That to make the review process more accessible and effective the following measures should be implemented:

Ensure that the decision-maker has specialist experience and qualifications, and has access to sufficient and thorough evidence from which to make an informed