The Disability Royal Commission Final Report

The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (DRC) has handed down its final 12-volume report, which contains 222 recommendations. Here is a short version of the Final Report

Here are some highlights:

A Disability Rights Act

The Australian government establish a new Disability Rights Act (DRA) to translate the international human rights set out in the Convention on the Rights of Persons with Disabilities (CRPD) into domestic and enforceable Australian law.

They want this to happen as soon as possible, following close consultation with people with disability and key stakeholders. Some commissioners believe the DRA should initially cover public authorities and be reviewed within five years to see if the duties should be extended to private sector providers under the NDIS, whereas others believe that private entities should be included from the outset. The DRC also makes recommendations to strengthen the existing Disability Discrimination Act.

National Disability Commission

If enacted, the DRA would also establish an independent statutory body: the National Disability Commission. The National Disability Commission would have capacity-building functions, including research, publishing guidelines, providing advice, handling complaints, and intervening in certain court proceedings.

It would also have the power to address non-compliance with the DRA, using inquiries, enforceable undertakings, compliance notices, and injunctions. Parties would be able to make complaints about breaches of the DRA to the new commission, which could offer information, dispute resolution, and referrals to police and other oversight bodies.

Parties could also take claims of a breach of the DRA to court. The DRC wants this new commission established by mid-2025.

A new government portfolio

The DRC has recommended a new ministerial portfolio be established specifically for disability to give it the status and attention required to drive reforms and change practices and attitudes.

This would include a dedicated senior ministerial position: the Minister for Disability Inclusion. This minister would be responsible for national leadership on disability issues, policies, and programs.

The DRC also recommended a new Department of Disability Equality and Inclusion dedicated to improving outcomes for people with disability, with responsibility for the national disability and carers policies and programs (these would move from the Department of Social Services).

If accepted, this proposed ministerial portfolio would include:

1. the new Department of Disability Equality and Inclusion
2. the new National Disability Commission
3. the NDIA
4. NDIS Quality and Safeguards Commission (NDIS Commission)

Reducing and ending segregation

The DRC heard overwhelming evidence that people living in segregated settings are more likely to experience violence, abuse, neglect, and exploitation. All commissioners agreed that reforms are required to ensure that no one is forced to participate in settings designed exclusively for people with disability.

Commissioners were split over the future of settings such as special schools, Australian Disability Enterprises (ADEs), and group homes, including whether they always constitute segregation.

Commissioners Bennett, Galbally, and McEwin (two of whom have lived experience of disability) advocate for phasing out these settings, in the knowing that children who are educated in segregated schools, are more likely to go on to segregated employment and live in segregated settings. They argue that the segregation that occurs across these settings is incompatible with inclusion and an unconscionable policy default for Australia in the 21st century.

The other commissioners did not agree that all specialist settings exclusively for people with disability warrant the term segregation and took a less hard-line approach in their recommendations.

Education

All commissioners agree that mainstream schools need major reform to overcome barriers to safe, equal, and inclusive education and that the status quo can no longer be tolerated.

Their views on how this should be achieved are split: 

• The three aforementioned commissioners have proposed phasing out special schools over a generation, with no more to be built from 2025 and no students to remain in segregated schooling by the end of 2051.
• The remaining three commissioners, who refer to special schools as “non-mainstream schools”, do not support this phasing-out approach. Instead, they recommend that existing non-mainstream schools be relocated near mainstream schools and that partnerships be established to facilitate regular interchange and participation between the schools and their students.

Employment

The commissioners recommend that the Department of Social Services develop a plan to support people with disability working in Australian Disability Enterprises to move into inclusive, open employment options if they choose.

They also call on the Australian government to raise the minimum wage for supported employees to 50%, with a transition to the full standard minimum wage by 2034.

Commissioners Bennett, Galbally, McEwin, and Mason go further in their recommendation and want to see Australian Disability Enterprises phased out by 2034 through a National Inclusive Employment Roadmap.

Group homes

Commissioners called on the NDIS Commission to prioritise the implementation of the Own Motion Inquiry into Aspects of Supported Accommodation – Action Plan.

They also want it to include a review of mechanisms to transfer away from Supported Independent Living and Specialist Disability Accommodation (SDA) being delivered by the same provider, and actions that see disability providers implement models of practice, such as active support.

They want to see an implementation plan with explicit timeframes and annual reporting on progress.

The DRC offers recommendations for establishing more inclusive housing options and wants to see NDIS funding models reformed to provide greater flexibility. It calls for pricing mechanisms that do not favour group home living over other models of inclusive housing.

Commissioners Bennett, Galbally, McEwin, and Mason have also called for a comprehensive roadmap to phase out group homes within the next 15 years.

Commissioner Ryan suggests an alternative approach to phasing out group homes over time, starting by not approving SDA with 4 to 6 bedrooms. Ryan suggests that new NDIS participants should only be able to enter group homes as a last resort and that priority should be given to moving existing residents out of group homes into smaller groups over time.

Ryan also suggests that annual progress and outcomes should be reported to the Disability Reform Ministerial Council.

Disability services

Capacity Building

The report recommends the NDIS Commission co-design a capacity building program to support disability service providers to embed human rights in the design and delivery of their services.

It says the program should be grounded in the principles of the CRPD and include opportunities to build dialogue between providers and participants. This would be supported by resources and training that reflect the diversity of participants and providers.

Independent support coordination

It should come as no surprise that the DRC has called for an NDIS rule that stipulates the separation of support coordination and other funded supports.

The Report states that exceptions to the rule should be defined in consultation with people with disability, First Nations people, and representative bodies. Exceptions could apply in thin markets or when there are limited culturally appropriate or specialised services for example.

The DRC also says that the NDIA should ensure people at higher risk of abuse – especially those living in supported accommodation – have support coordination funding in their plans.

It recommends that by 30 September 2025 funding for support coordination should reflect NDIS participants’ needs and be sufficient to facilitate face-to-face contact at least monthly.

The report also calls for an NDIS Commission review into the quality and consistency of support coordination, with a particular focus on the needs of First Nations and culturally and linguistically diverse people, those living in remote locations, people experiencing housing insecurity or homelessness, those living in supported accommodation, people working in ADEs, and those navigating state or territory housing, health, or criminal justice systems. This may form part of the NDIS Commission’s current Own Motion Inquiry.

Advocacy

The DRC recommends that the NDIA develop a program to connect participants living in supported accommodation with an appropriate disability advocacy organisation by January 2025.

Following an evaluation, the NDIA should then consider expanding the program to other groups identified as at heightened risk. The DRC also suggests that the NDIS Commission, when reviewing complaints and reportable incidents, should actively promote the value of independent advocacy for people at heightened risk of abuse.

You might be wondering about how this will be funded. Over in Volume 6 the DRC recommends an increase in annual funding (indexed) of $16.6M to the National Disability Advocacy Program and $20.3 million for the NDIS Appeals Program for the financial years 2024–25 and 2025–26. After this time the DRC says the Australian government should ensure long-term and stable funding for national disability advocacy programs, as should the states territories for their jurisdictional programs.

Supported decision-making

The DRC has identified a number of new quality indicators related to supported decision making and recommends that the NDIS Commission amend the NDIS Practice Standards to reflect those indicators by 30 June 2025.

It also suggests that the NDIS Commission co-design a practice guide on supported decision making for service providers.

Volume 6 also includes recommendations for establishing a new supported decision making framework including legislative reform to move away from substitute decision making. In this Volume the DRC also recommends establishing a national plan to promote accessible information and communication, increasing interpreter numbers and a practice standard for NDIS providers to work effectively with interpreters.

Disability worker registration

Next up, the DRC has recommended the establishment of a national disability support worker registration scheme by 1 July 2028 – with consultation on the scope to commence as soon as possible.

The design would include defining a disability support worker, a code of conduct and minimum standards, mandatory NDIS worker screening, recognition of qualifications, experience, and skills, continued professional development, and portable training and leave entitlements.

It also recommended automatic registration for those registered with other relevant professional bodies, a First Nations workforce pathway, and an accessible portal to enable participants to view the profiles and registration status of disability support workers.

Provider of last resort

The DRC urges the federal and state governments to set up a provider of last resort scheme and to do so urgently.

The scheme would address failed and thin markets, particularly for First Nations people in remote communities, with block funding to be considered to guarantee service provision in those communities.

It could also ensure that there is access to services for people in crisis situations, those at risk of losing their accommodation or services, and people whose needs cannot be adequately met by existing services.

Under this scheme, some people at heightened risk of violence, abuse, neglect, or exploitation could have access to case management.

The DRC recommends that the Australian government put forward a proposal for discussion to the Disability Reform Ministers Council in 2024.

Reportable incidents

The DRC states that the NDIS Commission should improve its internal procedures for monitoring reportable incidents.

This includes providing feedback on the way providers handle incidents, seeking feedback from stakeholders on gaps, and improving the efficiency of the Commission’s online portal for reporting.

The sheer volume of incidents received by the NDIS Commission makes timely and thorough investigation difficult. The DRC suggests controlling the volume by reporting based on risk.

They suggest introducing “class or kind” determinations and exempting certain providers from reporting less serious reportable incidents where they have demonstrated competence in managing and investigating incidents themselves. The NDIS Commission could then conduct audits to assess compliance. It is also recommended that the NDIS Commission create an independent investigators panel.

Model policies and procedures

The DRC recommends that the NDIS Commission, in consultation with participants and stakeholders, produce certain model procedures for providers.

This includes guidance for frontline workers on recognising and reporting incidents, incident management, and complaint management.

Complaints

The report recommends that the NDIS Commission issue a guideline to providers by notifiable instrument that addresses accessible and responsive complaint handling and investigative practices.

It should also include a requirement for providers to consider redress and forms of support when the NDIS Commission believes that a provider is responsible for the violence, abuse, neglect, or exploitation experienced by the participant.

The DRC says that the NDIS Commission should consider whether it already has the power to incorporate redress in enforceable undertakings – if not, it should seek the necessary authority.

The DRC also suggests new quality indicators for complaint handling and incident management. It recommends that certain complaints should require the provider to undertake an investigation and report on its findings.

There is also a number of recommendations for the NDIS Commission on how it could enhance the accessibility of its own complaint handling processes.

Governance safeguarding expertise

The DRC recognises governing bodies as essential to promoting a positive safeguarding culture in their organisations. However, it heard that some governing bodies do not appear to understand their accountability responsibilities.

To this end, the DRC recommends the NDIS practice standards on governance should include more prescriptive quality indicators and that guidance should be developed on best practice governance models for NDIS providers.

The DRC also recommends NDIS provider governing bodies should ensure they have access to specialist safeguarding advice when considering issues arising from complaints and incidents.

Registration and audit process

Providers will be relieved to hear that the DRC recommends a comprehensive review of the provider registration process with the aim of simplifying the process for smaller providers, improving the NDIS Commission portal, and removing duplication for organisations working across multiple schemes.

It also suggests that the NDIS Commission consider easier and more cost-effective certification audits in areas where there are workforce shortages or thin markets.

The Report suggests that the NDIS Commission implement a framework for sharing relevant information with quality auditors so they can be alerted about known systemic issues across the NDIS provider market. It also recommends that the NDIS Commission publish de-identified data about quality audit outcomes to inform best practice as well as data on trends and risks identified in the unregistered provider market.

Worker screening

The DRC has called for strengthening the Intergovernmental Agreement on Nationally Consistent Worker Screening, including clarifying the role of police or other national bodies in monitoring new charges relating to disability workers and sharing information with state and territory worker screening units.

They have also proposed the establishment of an operational framework to promote consistency and better information sharing between the NDIS Commission and worker screening units.

Moreover, the DRC recommends a review to assess the ability of worker screening units and the NDIS Commission to obtain and share relevant risk-related information from bodies outside their jurisdiction, including other safeguarding and complaint handling bodies.

Behaviour support and restrictive practices

While the DRC’s recently commissioned Research Report called for the elimination of restrictive practices, Volume 6 of the Final Report calls for stronger legal frameworks for restrictive practices.

The DRC calls on states and territories to ensure that appropriate legal frameworks are in place to authorise restrictive practices across a range of settings based on a senior practitioner model.

The Report recommends a number of practices which should be prohibited across different settings and suggests that the NDIS Commission, the Australian Commission on Safety and Quality in Health Care, and the Aged Care Quality and Safety Commission publish joint annual progress reports on the reduction of using psychotropic medicines against people with cognitive disability.

The DRC has also called for the National Disability Research Partnership to commission a longitudinal study on the impact of positive behaviour support and other strategies to reduce and eliminate restrictive practices. It recommends targets and performance indicators be developed no later than 1 July 2025 to drive the reduction and elimination of restrictive practices.

Finally, the DRC recommends a legislative prohibition on non-therapeutic sterilisation by the end of 2024, except when there is a threat to life or the person gives voluntary informed consent.

The DRC has heard about the problems people have accessing timely behaviour support services and suggests providing incentives for practitioners and NDIS providers to deliver behaviour support services, including in thin markets.

It advocates forming partnerships with First Nations leaders from the disability and employment services sectors to develop a recruitment strategy to address behaviour support shortages in regional and remote areas.

The DRC also suggests exploring the merits of on-the-job professional development and accreditation for behaviour support practitioners and creating a publicly accessible list of all individual behaviour support practitioners.

Other recommendations

The DRC makes several other recommendations to the NDIS Commission, including reviewing its compliance and enforcement policy, strengthening its intelligence capacity, and undergoing more engagement and capacity building activities with NDIS providers.

Ideas include sharing data and insights, facilitating industry forums and communities of practices, and expanding its training offerings.

Moreover, Volume 11 of the Report recommends some major reforms that could impact the quality and safeguarding landscape, such as the introduction of a nationally consistent adult safeguarding function, community visiting schemes, disability death review schemes, and reportable conduct schemes.

TImeframe

The Royal Commission has given the Australian government 6 months (April/May 2024) to respond to their recommendations and the Australian government has established a Commonwealth Disability Royal Commission Taskforce to coordinate its response.

The Australian Government says the Taskforce will be critical in assessing how the individual recommendations are linked together, the broader implications and the sequencing of the Government's response.

They say this work will be done in close consultation with the disability community and stakeholders. As recommendations are directed to, and the responsibility of, both the Commonwealth and states and territories, close collaboration and coordination will be required.

Sources:

• AFDO - Report Card on the Final Recommendations from the Royal Commission into Violence, Abuse, Neglect, and Exploitation of People with Disability 
• Royal Commissioninto Violence, Abuse, Neglect and Exploitation of People with Disability - Guide to the the Final Report
• DSC - Inside the Royal Commisson's Final Report