The Disability Royal Commission final report: a roadmap for disability service providers

The Royal Commission made 222 recommendations, including that the Australian Government commit to the enactment of a Disability Rights Act (DRA or the Act) to translate the international human rights of people with disability into domestic Australian law. The Commission proposes the Australian Government introduce legislation into parliament as soon as possible, following close consultation with people with disability, disability representative organisations and other key stakeholders.

The Australian, state and territory governments should develop and enter into a new National Disability Agreement (NDA).

The new NDA should become the overarching agreement for disability policy in Australia.

Its scope should be broad to capture all people with disability, their families and carers, and all services to people with disability, including mainstream services. It should outline:

• the purpose of the NDA, and how this links to the National Disability Strategy (NDS) and the National Disability Insurance Scheme (NDIS);

• the aspirational objective for disability policy;

• the roles and responsibilities of governments in progressing that objective;

• the outcomes being sought for people with disability and carers; and

• a nationally consistent performance reporting framework for tracking progress against those outcomes.

To support compliance with the Disability Rights Act, the Act should provide the National Disability Commission with functions and powers to:

• promote understanding and acceptance of the rights of people with disability under the Act;

• undertake research in relation to the rights and duties under the Act;

• issue guidelines on any matter relating to the Act;

• review a person or entity’s compliance with the Act (or an aspect of the Act) at that person or entity’s request;

• receive complaints or anonymous or confidential reports alleging a contravention of the Act;

• inquire into and report on any act or practice that may be inconsistent with or contrary to the Act;

• require the giving of information and the production of documents during the conduct of a formal inquiry;

• require the examination of witnesses under oath or affirmation during the conduct of a formal inquiry;

• enter into an enforceable undertaking with a person or entity in relation to compliance with the Act (engaging Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth));

• issue a compliance notice where the National Disability Commission reasonably believes that the relevant person or entity, without reasonable excuse, has failed to comply with the Act;

• apply to the Federal Court of Australia or the Federal Circuit and Family Court of Australia for enforcement of a compliance notice;

• apply to the Federal Court of Australia or the Federal Circuit and Family Court of Australia for an injunction (engaging Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth)) to prevent or stop a contravention of the Act; and

• intervene in any proceedings before a court or tribunal that relate to the application or interpretation of the Act.

The Australian Government should provide the National Disability Commission with dedicated resources to undertake these functions.

The Disability Rights Act should establish a standalone cause of action under which:

• the following persons can bring a claim to the Federal Court of Australia or the Federal Circuit and Family Court of Australia that a relevant duty-holder has acted in contravention of the Disability Rights Act (other than compliance with the consultation requirement, notices of the National Disability Commission, duties supporting compliance with the Act such as reporting and self-audit obligations, and the positive duty to promote disability equality and inclusion):

  1. an aggrieved person on their own behalf;

  2. an aggrieved person on behalf of themselves and others who are also aggrieved;

  3. two or more aggrieved persons on behalf of themselves or others who are also aggrieved (a group claim);

  4. a person or disability representative organisation on behalf of one or more aggrieved persons (a representative claim);

• where a claim is brought before a court under (i) and the court finds that a person or entity has acted incompatibly with the Disability Rights Act, it can make any order it considers just and appropriate, including damages.

• provisions in relation to costs are aligned with Commonwealth discrimination law, as amended following the 2022–23 review by the Australian Government Attorney-General’s Department.

The Royal Commission recommends the National Disability Commission be given:

• capacity-building functions under the DRA, including conducting research, publishing guidelines, providing advice through voluntary compliance reviews, handling complaints and being able to intervene in appropriate court proceedings; and

• powers to address non-compliance with the DRA, including conducting inquiries, entering enforceable undertakings, issuing compliance notices and seeking injunctions to stop or prevent breaches of the DRA.

The Royal Commission recommends each state and territory establish protections corresponding to those recognised in the DRA within their jurisdiction. These protections should encompass a consistent range of rights similar to those in the DRA, with adaptions of duties and compliance mechanisms to fit their own legal context and institutional structures.

In promoting equality and enhancing the right of people with disability to live free from discrimination, the Royal Commission recommends amendments to make the DDA more effective. These reforms would be complementary to the DRA.

They recommend the creation of a new positive duty under the DDA to take reasonable and proportionate measures to eliminate all forms of discrimination, including harassment and victimisation, on the ground of disability. The duty should apply to all current duty holders under the DDA, including public and private sector entities. This recommendation is based on the December 2022 amendments to the Sex Discrimination Act 1984 (Cth).

Supported decision making should be embedded in guardianship and administration law and practice, and other systems over time, to ensure substitute decision making only happens as a last resort and in the least restrictive manner.

The Royal Commission considers that state and territory guardianship and administration legislation should be reformed to recognise and encourage supported decision making. The key aspects of the supported decision making framework they recommend are:

• use of modern language, including the terms ‘supporter’ and ‘representative’;

• inclusion of the CRPD in the objects of legislation;

• a focus on decision making ability;

• introduction of a formal supporter model;

• ensuring representatives are appointed only as a last resort; and

• a new decision making process for supporters and representatives.

Incorporating key elements of a supported decision making framework in all guardianship and administration legislation will bring about greater uniformity and consistency in practice across states and territories.

The Royal Commission has also provided recommendations to amend the National Disability Insurance Scheme (Quality Indicators for NDIS Practice Standards) Guidelines 2018 (Cth) to reflect that each participant (see Recommendations 10.6-10.7):

• is entitled to support to make everyday life decisions including what services they receive, in what way and from whom;

• has opportunities to make decisions about their goals and aspirations;

• is supported to develop their decision making skills;

• is supported to communicate their will and preferences; and

• has the right to choose their own supporter.

Amendments should be completed by 30 June 2025.

States and territories should ensure appropriate legal frameworks are in place in disability, health, education and justice settings, which provide that a person with disability should not be subjected to restrictive practices, except in accordance with procedures for authorisation, review and oversight established by law.

The legal frameworks should incorporate the following requirements, appropriately adapted to sector-specific contexts:

• restrictive practices should only be used:

  • as a last resort, in response to a serious risk of harm to a person with disability or others, and only after other strategies, including supported decision making, have been explored and applied;

  • as the least restrictive response possible to ensure the safety of the person with disability or others;

  • to the extent necessary to reduce the risk of harm and proportionate to the potential negative consequences from the use of restrictive practices; and

  • for the shortest time possible;

• decisions to authorise restrictive practices should be subject to independent review; and

• the use of restrictive practices should be subject to independent oversight and monitoring.

The legal frameworks should set out the powers and functions of a senior practitioner for restrictive practices in disability service provision (or equivalent authority). These powers and functions should include:

• promoting the reduction and elimination of the use of restrictive practices;

• protecting and promoting the rights of people with disability subjected to restrictive practices;

• developing and providing information, education and advice on restrictive practices to people with disability, their families and supporters, and the broader community;

• considering applications to use restrictive practices in disability service settings and authorising their use according to procedures consistent with the Draft Principles; for Consistent Authorisation;

• developing guidelines and standards, and providing expert advice, on restrictive practices and behaviour support planning;

• receiving complaints about the use of restrictive practices and the quality of behaviour support planning;

• investigating the use of restrictive practices and the quality of behaviour support planning, either in response to complaints or of its own motion; and

• acting in response to complaints and investigations where appropriate.

State and territory governments should immediately:

• adopt the list of prohibited forms of restrictive practices agreed by the former Disability Reform Council in 2019 and provide that the use of seclusion on children and young people is not permitted in disability service settings; and

• provide that the following are not permitted in health and mental health settings:

  • using seclusion and restraint as a means to reduce behaviours not associated with immediate risk of harm;

  • using seclusion and restraint as a form of discipline, punishment or threat;

  • restrictive practices that involve or include deliberate infliction of pain to secure compliance;

  • using prone or supine holds, using any restraint intended to restrict or affect respiratory or digestive function, or forcing a person’s head down to their chest;

  • secluding a person who is also mechanically restrained;

  • secluding a person who is actively self-harming or suicidal;

  • using metal handcuffs or hard manacles as a form of mechanical restraint (unless under police or other custodial supervision while in the health facility);

  • vest restraints for older people;

  • neck holds;

  • drugs, or higher doses of drugs, that create continuous sedation to manage behaviour; and

  • seclusion of children and young people.

The NDIS Quality and Safeguards Commission (NDIS Commission), the Australian Commission on Safety and Quality in Health Care and the Aged Care Quality and Safety Commission should:

• publish joint annual progress reports on implementation of measures under the Joint Statement on the inappropriate use of psychotropic medicines to manage the behaviours of people with disability and older people; and

• commission an independent evaluation of these measures to determine whether they have resulted in a reduction in the use of psychotropic medicines against people with cognitive disability. The evaluation should be co-designed with people with cognitive disability and their representative organisations, and its results should be publicly reported.

This Royal Commission recommends establishing an independent, statutory body – the National Disability Commission – with functions across three broad areas:

• monitoring and oversight of the Disability Rights Act, as proposed in Volume 4, Realising the human rights of people with disability;

• monitoring and reporting on outcomes for people with disability and the implementation of recommendations from this Royal Commission;

• promoting research and information sharing to support best practice and encourage innovative approaches to improving outcomes for people with disability.

The NDIS Commission should commission a capacity-building program to support disability service providers to embed human rights in the design and delivery of their services. The program should be co-designed with people with disability, disabled people’s organisations, disability representative organisations including member led First Nations Community Controlled Organisations and peak bodies.

The program should:

• develop opportunities for dialogue between providers and people with disability to address challenges and share promising practices;

• develop tools, resources and training packages that reflect the diversity of people with disability and disability service providers across Australia;

• focus on practical, implementable strategies that lead to better outcomes for people with disability;

• be grounded in the principles of the CRPD and reflect the findings, the NDIS Review and the NDIS Commission’s own motion inquiries and recent Safeguarding Policy Implementation Plan; and

• enable providers to prepare for, or demonstrate compliance with, current and future legislative and registration requirements associated with the rights of people with disability. This includes responsibilities under the Disability Discrimination Act 1992 (Cth) and the Disability Rights Act (if enacted).

The National Disability Insurance Agency, and state and territory governments involved in providing, regulating or conducting oversight of disability services not funded under the NDIS, should actively participate in all stages of the program.

The program should begin by 1 July 2025.

The Royal Commission recommends the Australian Government, in consultation with states and territories, create or amend an NDIS rule to make clear it is not appropriate for a provider of support coordination to be the provider of any other funded supports in an NDIS participant’s plan. Exceptions may be required, including where there are few alternative service options or where access to culturally appropriate or specialised services is limited.

Exceptions to the Rule should be developed in consultation with people with disability, disabled people’s organisations, disability representative organisations including member led First Nations Community Controlled Organisations and peak bodies.

Exceptions may include situations where there are limited alternative service options for NDIS participants due to thin disability service markets, or where there are limited culturally appropriate or specialised services available.

The Australian Government should establish a national disability support worker registration scheme by 1 July 2028.

Consultation about the scope and elements of the national disability support worker registration scheme should begin as soon as possible. The consultations should include people with disability, disabled people’s organisations, disability representative organisations including member led First Nations Community Controlled Organisations, support workers and their representative bodies, disability service providers, state and territory governments, and peak and regulatory bodies.

The design of the scheme should consider:

• the definition of ‘disability support worker’;

• a code of conduct and minimum standards for registered disability support workers, including support coordinators;

• mandating the NDIS Worker Screening Check for all disability support workers;

• recognition and accreditation of workers’ qualifications, experience, capabilities and skills;

• continuing professional development requirements for disability support workers;

• automatic registration for disability support workers who are registered with other relevant professional bodies;

• a First Nations workforce pathway to address barriers to First Nations workers entering the sector;

• an accessible portal to enable people with disability and their supporters to view the profiles and registration status of disability support workers; and

• portable training and leave entitlements.

The NDIS Commission should improve its internal procedures for monitoring reportable incidents, paying particular attention to:

• communicating feedback about the quality of providers’ handling of incidents;

• seeking clarification from providers, NDIS participants and their families when deficiencies or evidentiary gaps are identified, particularly where participants have been harmed or are at immediate risk of harm; and

• the efficiency of the online portal used by providers to report incidents.

The Minister for the NDIS should, in consultation with states and territories, amend the National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 (Cth) and National Disability Insurance Scheme (Complaints Management and Resolution) Rules 2018 (Cth) to include a requirement for NDIS providers to consider redress and forms of support to an NDIS participant where the NDIS Commission forms the view that the service provider bears responsibility for the violence, abuse, neglect or exploitation experienced by the NDIS participant.

The NDIS Commission should:

• provide practical advice on suitable forms of redress when making the guideline on accessible and responsive complaint handling and investigative practice; and

• consider whether it has power to incorporate in enforceable undertakings a requirement that service providers afford redress to NDIS participants in appropriate cases. If not, it should seek the necessary powers and be prepared to use them where appropriate.

The NDIS Commission should review its compliance and enforcement policy and in doing so have regard to:

• where appropriate, transitioning its primary compliance approach from educational and capacity building strategies to stronger compliance and enforcement activities;

• increasing its face-to-face engagement with NDIS participants who are at greater risk of experiencing violence, abuse, neglect and exploitation, and site visits to speak with providers and workers;

• increasing the use of its enforcement powers and monitoring tools in relation to NDIS providers that:

  • have a history of noncompliance or repeatedly fail to meet their obligations to provide safe and quality supports and services;

  • have demonstrated a disregard for the safety of people with disability; and

  • have caused serious harm to a person or people with disability,

• the availability of enforceable undertakings and compliance notices to address non-compliance by NDIS providers.

Broadly, governance refers to the structures, systems and processes in place to manage an organisation. Governance is often centred around the leadership and decision making processes of an organisation and the frameworks and rules underpinning the way it is expected to operate.

The governance and leadership of disability services dictate organisational culture and practice. They influence how providers embed a human rights culture and identify and manage risk, including the risk of violence against, and abuse, neglect and exploitation of, the people receiving their services.

Deficiencies in governance and leadership can lead to insufficient oversight and inadequate management and responses to risk.

Good governance practices bring transparency and accountability to decision making and decision makers. Investment in disability leadership and meaningful engagement with people with disability also strengthens transparency and accountability.

The Australian Government Department of Social Services should ensure that the design of the new Disability Employment Services model:

• is developed using inclusive design principles, and co-designed by people with disability who are employed as paid members of the design team;

• adopts customised employment models as a core component of service provision;

• ensures funding arrangements facilitate flexible employment supports, such as customised employment, and support the progress of Disability Employment Services participants in achieving employment goals and long-term employment outcomes; and

• considers options to remove the requirement for a person to have a minimum future work capacity of eight hours a week to access the Disability Employment Services program, to facilitate access for all people with disability to the new model.