Quality & Safeguarding
Disability Royal Commission Recommends Independent Complaint and Oversight Mechanisms
The Disability Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (DRC) has heard about the importance of accessible and responsive complaint pathways and strong oversight in curbing violence, abuse, neglect and exploitation. Various oversight bodies exist in Australia with the statutory responsibility to ‘watch over’ a particular group of organisations and hold them to account. For example, ombudsmen watch over public sector agencies and certain non-government organisations, and the NDIS Quality and Safeguards Commission (NDIS Commission) monitors NDIS providers. However, given that the majority of Australians with disability are not NDIS participants, broader independent oversight and complaint pathways are necessary to ensure people do not fall through the gaps. This is what Volume 11 Independent Complaints and Oversight Mechanisms delves into. The DRC recommending that independent oversight and complaint mechanisms be built and strengthened across the following six areas.
1. Adult safeguarding functions
While we have established statutory mechanisms for responding to violence and abuse against children in the community, there is no consistent equivalent for adults at risk across Australia. The fractured nature of the current situation makes coordinated ‘end-to-end’ responses challenging. In 2017, the Australian Law Reform Commission recommended adult safeguarding laws be introduced to address elder abuse. Enacted in South Australia and New South Wales, designated bodies investigate allegations of abuse against people with disability and older people, taking safeguarding action where necessary. The DRC recommends that all states and territories legislate adult safeguarding laws that empower an independent, appropriately resourced body to administer information, referral, support coordination, investigation, public reporting and community education functions. It would like to see the establishment of a National Adult Safeguarding Framework led by these appointed bodies. The DRC says the Australian Government should incorporate the proposed Framework into Australia’s Disability Strategy – Safety Targeted Action Plan or another suitable authorising document.
2. Independent complaint reporting, referral and support mechanisms
The disability complaints landscape is complex, meaning people often need support when making a complaint. This is obviously a significant barrier. The DRC wants the burden of where to complain removed from the individual, advocating that each state and territory should have a highly visible ‘one-stop shop’ for reporting violence or the abuse of a person with disability. The DRC recommends the Australian Government works with states and territories to establish a national 1800 number, website and other accessible reporting tools to direct people to the independent complaint and referral mechanism in their jurisdiction. The proposed mechanism would differ from existing hotlines, providing warm referrals to appropriate complaint bodies, including police, and linking to local advocacy. The DRC suggests there may be benefits to co-locating the one-stop shop with the adult safeguarding function described above.
The DRC would also like to see universal guidelines developed for providers and organisations to improve the quality, consistency and accessibility of complaints systems. They recommend guidance on how to handle more serious complaints concerning abuse and neglect and how to conduct trauma-informed investigations that prioritise the meaningful participation of people with disability. It recommends the Commonwealth Ombudsman should lead a co-design process to establish such guidelines with the NDIS Commission, state and territory ombudsmen and other bodies with complaint handling and investigation expertise.
3. Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT)
The OPCAT is an international agreement aimed at preventing the torture and cruel treatment of people in detention. States that ratify the agreement are required to establish what are known as National Preventive Mechanisms (NPMs) to inspect places of detention to prevent torture and degrading treatment. Despite Australia ratifying the OPCAT in 2017, New South Wales, Queensland and Victoria have yet to designate an NPM and legislation to facilitate compliance. In December 2021, the Australian Government requested a one-year extension citing the COVID-19 pandemic and Australia’s federated system of government as reasons for delay. The United Nations Committee Against Torture granted an extension until 20 January 2023 however this deadline was not met. The Australian government and members of the Australian jurisdictions who have nominated NPMs have called on remaining governments to comply. Similarly, the DRC recommends all states and territories establish legislation and NPMs as a priority. It also wants the Australian Government to act on recommendations from the Human Rights Commission by introducing legislation enshrining the key provisions of the OPCAT and facilitating the national coordination of Australia’s OPCAT response.
The DRC says the OPCAT NPM bodies should implement their functions in a disability-inclusive way by enabling detained people to share information and experiences with the NPM using their chosen means of communication. It recommends staff participate in ongoing education and training regarding the OPCAT, human rights and issues affecting people with disability in detention. The DRC wants the staff conducting NPM inspections to have the skills and experience to provide reasonable adjustments, communication assistance and supported decision-making as required. It also wants to see people with disability involved in the inspection of places of detention and recommends collecting and publishing data aligned with disability inspection standards.
4. Community visitor schemes
Community visitors are appointed to independently visit people at certain sites, for example, in residential services or group homes. They can provide an early warning system to prevent abuse and neglect, particularly for those without a strong informal support network. Community visitors can also help resolve issues or complaints. They can play a crucial role in promoting and protecting people’s rights by visiting announced and unannounced, and identifying and escalating issues that may otherwise not be raised.
Community visiting schemes operate differently across Australia and are not available in all jurisdictions. The DRC wants to see a nationally consistent approach, including a common definition of ‘visitable services’ with agreed standards and quality indicators for monitoring (informed by NDIS practice standards). The DRC recommends the NDIS Act 2013 and the NDIS Quality and Safeguarding Framework be amended to formally recognise community visitors as a safeguard for people with disability. You may recall that a review of the various community visiting schemes was undertaken nearly five years ago, producing similar recommendations. This is also being considered as part of the review of the NDIS Quality and Safeguarding Framework by the Independent Review into the NDIS. The DRC recommends the Australian and state and territory governments enter into a national agreement that establishes how community visiting schemes and the NDIS Commission will cooperate and share information to effectively exercise their different but related functions.
5. Disability death review schemes
People with disability are at higher risk of potentially avoidable deaths than the broader Australian population. This is particularly true for people with intellectual disability and those living in supported accommodation. Systemic reviews of the deaths of people with disability are considered an important method for identifying and communicating the factors that contribute to this inequality. Prior to 2022, the NSW Ombudsman was required to review the deaths of people with disability living in supported accommodation and assisted boarding houses. While in Victoria, the Disability Services Commissioner reviewed the deaths of people using disability services, a function which was substantially diminished with the roll out of the NDIS. The DRC says these changes have created a regrettable oversight gap in NSW and Victoria, noting that no other state or territory has a comparable scheme. Acting on the advice of experts, the DRC recommends each state and territory should establish a disability death review scheme. The schemes should be nationally consistent and operate in conjunction with the NDIS Commission’s separate but related function of overseeing reportable incidents, including reportable deaths of NDIS participants.
6. Reportable conduct schemes
Reportable conduct schemes provide independent oversight of the way various organisations handle allegations of child abuse or harm made against their employees. They require relevant organisations to notify the independent oversight body of allegations of reportable conduct, to investigate the allegation and to report the outcome to the body. The schemes are allegation-based, meaning such conduct must be reported regardless of whether there is proof that it occurred. In 2017, the Royal Commission into Institutional Responses to Child Sexual Abuse found reportable conduct schemes are best practice for overseeing institutions’ handling of child abuse allegations against their employees. It recommended all states and territories establish nationally consistent schemes. The DRC noted these recommendations have not been fully implemented, with inconsistencies between jurisdictions, and Queensland, South Australia and the Northern Territory yet to establish schemes.
For organisations covered by the schemes, there is limited guidance about responding to allegations that involve children with disability. For NDIS providers falling under the jurisdiction of both the NDIS Commission and the state reportable conduct scheme, there is a lack of clarity about how reportable conduct scheme operators and the Commission will work together to promote consistency and reduce duplicate oversight. The DRC recommends that those states and territories yet to establish a reportable conduct scheme do so urgently, and that governments and reportable conduct scheme operators harmonise the schemes to make them more responsive to allegations related to children with disability. The DRC recommends reportable conduct scheme operators and the NDIS Commission jointly develop guiding principles to support the efficient and effective handling of reportable incidents that are also allegations of reportable conduct.
Given the overwhelming evidence that people with disability experience mistreatment in a range of settings beyond the NDIS, resourcing the NDIS Commission alone is unlikely to be effective in preventing and responding to the volume of violence, abuse, neglect and exploitation that occurs in Australia. The DRC report highlights that the current state is a patchwork of fragmented systems that leave gaping holes for people to fall through. A stronger coordinated approach between the Commonwealth and states and territories is needed to make sure all people have access to independent complaint and oversight mechanisms that uphold their rights and work togther. Finally, in the words of DRC, ‘a person-centred approach is critical to encouraging reporting of violence, abuse, neglect and exploitation and delivering effective responses. Such an approach involves listening to the needs of people with disability, and maximising their participation in safeguarding processes.’
Read the full report here: Final Report – Volume 11, Independent oversight and complaint mechanisms.