Summary of key recommendations from previous reports
Inquiry into violence, abuse and neglect of people
10.32 The committee recommends the Australian Government work with state and
territory governments on the implementation of initiatives to improve access to
justice for people with disability contained in the reports by the Law Reform
Commission, Equality, Capacity and Disability in Commonwealth Laws, the
Human Rights Commission, Equal Before the Law and Productivity
Commission, Access to Justice Arrangements, with particular focus on:
- better intervention and support services;
- expanded Community Visitor's schemes;
- improved witness support services to people with
- creation of an assessment protocol that assists
police, courts, and correctional institutions in identifying people with
disabilities. Where identified, a
trained officer will provide support;
- transparent, effective and culturally appropriate
complaints handling procedures;
- training for police, lawyers and others in justice
in needs of people with disability; and
- where a person who has been found unfit to plead is
to be held in detention, demonstrate that all reasonable steps have been taken
to avoid this outcome, and that person must be held in a place of therapeutic
10.33 The committee also recommends that each state and territory implement a
Disability Justice Plan.
10.34 The committee believes that there is a need for further investigation
of access to justice issues, with a focus on:
- national implementation of the South Australian
model to ensure people with disability are able to provide evidence;
- the implementation requirements for supported
- investigating the potential for the UK system of
- the access to justice needs of specific groups such
as women, children, culturally and linguistically diverse communities and
Aboriginal and, Torres Strait Islander peoples; and
- the indefinite detention of people with cognitive
impairment or psychiatric disabilities.
10.38 The committee recommends the Australian Government work with state and
territory governments on a nationally consistent approach to existing state and
territory disability oversight mechanisms, to include;
- a clear distinction between dispute resolution and
complaints investigation processes;
- a requirement that service delivery organisations
should not report to funding agencies due to the conflict of interest;
- the principle that immediate action be taken on
allegations of abuse to ensure the individual's safety;
- increased funding for community visitor schemes,
with consideration these schemes be professionalised in all jurisdictions and
with a mandatory reporting requirement for suspected violence, abuse or
- greater crossover in oversight and
complaints mechanisms between aged care and disability and recognising that
over 7000 young people with disability live in aged care facilities, ensure
that disability service standards are applicable.
10.41 The committee recommends that the Australian Government consider
driving a nationally consistent move away from substitute decision-making
towards supported decision-making models.
10.44 The committee recommends that the Australian Government work with state
and territory governments to consider implementing the recommendations of the
Australian Law Reform Commission report Equality, Capacity and Disability in
Commonwealth Laws, in relation to legal capacity and supported
10.45 The committee recommends the Australian Government work with state and
territory governments to create national consistency in the administration of
guardianship laws to ensure:
- public advocate and guardianship functions are
separate to ensure independent oversight;
- mandatory training on supported decision-making for
- a requirement for guardianship to achieve positive
outcomes, not just avoiding risk of negative outcomes;
- the ability to have nuanced
guardianship/decision-making frameworks – to ensure the legal ability of
parents to advocate on behalf of adult children without having to establish
- that service delivery organisations or accommodation
providers are never given guardianship;
- automatic increased oversight where service delivery
organisations or accommodation providers recommend families lose guardianship;
- that Aboriginal and Torres Strait Islander peoples'
particular circumstances are taken into account in developing guardianship
10.55 The committee recommends of the Government consider the following when
rolling out the National Disability Insurance Scheme (NDIS):
- an urgent roll out of capacity-building and advocacy
support for individuals undertaking negotiations for self-directed disability
- increased training for NDIS planners around
intellectual impairment and guidelines on when to require decision-making
- further investigation of whether the current NDIS
unit pricing will have an impact on incidents of violence, abuse or neglect.
- NDIS quality and safeguarding framework must ensure
a zero-tolerance approach to restrictive practice, and be tied to the National Framework for Reducing and
Eliminating the Use of Restrictive Practices in the Disability Service Sector; and
- amendment of the Quality and Safeguarding
Framework to include advocacy as a key component to reduce and address
incidents of violence, abuse and neglect.
10.58 The committee recommends the Australian Government work with state and
territory governments to implement a national zero-tolerance approach to
eliminate restrictive practice in all service delivery contexts. This would
- ensuring the national framework is properly
implemented across all jurisdictions, as a mandatory, reviewable and
enforceable scheme, with oversight by a qualified senior practitioner and with
a mandatory element of positive behaviour support;
- a scheme that is not limited to the disability
sector, but applies to all places where restrictive practice is used against
people with disability; and
- imposing requirements for the use of positive
behaviour management tools. These policies and guidelines would be guided by
the following principles:
- Policies and advice need to be available to the general public and
linked in with behaviour and discipline policy.
- The preferred substitution of positive behavioural management tools
such as Applied Behavioural Analysis for 'restrictive practices'.
Law Reform Commission
Equality, Capacity and Disability in Commonwealth
3. National Decision-Making
Recommendation 3–1 Reform of Commonwealth, state and
territory laws and legal frameworks concerning individual decision-making
should be guided by the National Decision-Making Principles and Guidelines (see
Recommendations 3–2 to 3–4) to ensure that:
supported decision-making is encouraged;
representative decision-makers are appointed only as a last
the will, preferences and rights of persons direct decisions that
affect their lives.
Principle 1: The equal right to make decisions
All adults have an equal right to make decisions that affect
their lives and to have those decisions respected.
Principle 2: Support
Persons who require support in decision-making must be provided
with access to the support necessary for them to make, communicate and
participate in decisions that affect their lives.
Principle 3: Will, preferences and rights
The will, preferences and rights of persons who may require
decision-making support must direct decisions that affect their lives.
Principle 4: Safeguards
Laws and legal frameworks must contain appropriate and
effective safeguards in relation to interventions for persons who may require
decision-making support, including to prevent abuse and undue influence.
Recommendation 3–2 Support Guidelines
- Persons who require
decision-making support should be supported to participate in and contribute to
all aspects of life.
- Persons who require
decision-making support should be supported in making decisions.
- The role of persons who
provide decision-making support should be acknowledged and respected—including
family members, carers or other significant people chosen to provide support.
- Persons who require
decision-making support may choose not to be supported.
- Assessing support needs
In assessing what support is required in decision-making, the
following must be considered:
- All adults must be presumed
to have ability to make decisions that affect their lives.
- A person must not be assumed
to lack decision-making ability on the basis of having a disability.
- A person’s decision-making
ability must be considered in the context of available supports.
- A person’s decision-making
ability is to be assessed, not the outcome of the decision they want to make.
- A person’s decision-making
ability will depend on the kind of decisions to be made.
- A person’s
decision-making ability may evolve or fluctuate over time.
Recommendation 3–3 Will, Preferences and Rights
(1) Supported decision-making
- In assisting a person who
requires decision-making support to make decisions, a person chosen by them as
- support the
person to express their will and preferences; and
- assist the person to develop their
own decision-making ability.
- In communicating will and
preferences, a person is entitled to:
- communicate by
any means that enable them to be understood; and
- have their cultural and linguistic
circumstances recognised and respected.
(2) Representative decision-making
Where a representative is appointed to make decisions for a
person who requires decision-making support:
The person's will and preferences must be given effect.
Where the person's current will and preferences cannot be
determined, the representative must give effect to what the person would likely
want, based on all the information available, including by consulting with
family members, carers and other significant people in their life.
If it is not possible to determine what the person would likely
want, the representative must act to promote and uphold the person’s human
rights and act in the way least restrictive of those rights.
A representative may override the person’s will and preferences
only where necessary to prevent harm.
Recommendation 3–4 Safeguards Guidelines
Safeguards should ensure that interventions for persons who
require decision-making support are:
- the least restrictive of the
person’s human rights;
- subject to appeal; and
- subject to regular,
independent and impartial monitoring and review.
- Support in decision-making
- Support in decision-making
must be free of conflict of interest and undue influence.
- Any appointment of a
representative decision-maker should be:
- a last resort
and not an alternative to appropriate support;
- limited in scope, proportionate,
and apply for the shortest time possible; and
- subject to review.
Decision-Making in Commonwealth Laws
Recommendation 4–1 A Commonwealth decision-making
model that encourages supported decision-making should be introduced into
relevant Commonwealth laws and legal frameworks in a form consistent with the
National Decision-Making Principles and Recommendations 4–2 to 4–9.
Recommendation 4–3 Relevant Commonwealth laws and
legal frameworks should include the concept of a supporter and reflect the
National Decision-Making Principles in providing that:
- a person who requires
decision-making support should be able to choose to be assisted by a supporter,
and to cease being supported at any time;
- where a supporter is chosen,
ultimate decision-making authority remains with the person who requires
decision-making support; and
- supported decisions should
be recognised as the decisions of the person who required decision-making
Recommendation 4–6 Relevant Commonwealth legislation
should include the concept of a representative and provide for representative
arrangements to be established that reflect the National Decision-Making
Recommendation 4–10 The Australian and state and
territory governments should develop mechanisms for sharing information about
appointments of supporters and representatives, including to avoid duplication
of appointments and to facilitate review and monitoring.
5. The National Disability
Recommendation 5–1 The objects and principles in the National
Disability Insurance Scheme Act 2013 (Cth) should be amended to ensure
consistency with the National Decision-Making Principles.
Recommendation 5–2 The National Disability
Insurance Scheme Act 2013 (Cth) and NDIS Rules should be amended to include
provisions dealing with supporters consistent with the Commonwealth
Recommendation 5–3 The National Disability Insurance
Scheme Act 2013 (Cth) and NDIS Rules should be amended to include
provisions dealing with representatives consistent with the Commonwealth
7. Access to Justice
Recommendation 7–1 and 7–3 The Crimes Act 1914 (Cth)
should be amended to provide that a person cannot stand trial if the person
cannot be supported to:
- understand the information
relevant to the decisions that they will have to make in the course of the
- retain that information to
the extent necessary to make decisions in the course of the proceedings;
- use or weigh that
information as part of the process of making decisions; or
- communicate the decisions in
Recommendation 7–2 State and territory laws governing
the consequences of a determination that a person is ineligible to stand trial
should provide for:
- limits on the period of
detention that can be imposed; and
- regular periodic review of
Recommendation 7–7 The Evidence Act 1995 (Cth)
should be amended to provide that a person is not 'competent to give evidence
about a fact' if the person cannot be supported to:
- understand a question about
the fact; or
- give an answer that can be
understood to a question about the fact.
Recommendation 7–11 Federal courts should develop
bench books to provide judicial officers with guidance about how courts may
support persons with disability in giving evidence.
8. Restrictive Practices
Recommendation 8–1 The Australian Government and the
Council of Australian Governments should take the National Decision-Making
Principles into account in developing the national quality and safeguards
system, which will regulate restrictive practices in the context of the
National Disability Insurance Scheme.
Recommendation 8–2 The Australian Government and the
Council of Australian Governments should develop a national approach to the
regulation of restrictive practices in sectors other than disability services,
such as aged care and health care.
10. Review of State and
Recommendation 10–1 State and territory governments
should review laws and legal frameworks concerning individual decision-making
to ensure they are consistent with the National Decision-Making Principles and
the Commonwealth decision-making model. In conducting such a review, regard
should also be given to:
- interaction with any
supporter and representative schemes under Commonwealth legislation;
- consistency between
jurisdictions, including in terminology;
cross-jurisdictional recognition of arrangements; and
- mechanisms for consistent
and national data collection.
Any review should include, but not be limited to, laws with
respect to guardianship and administration; consent to medical treatment;
mental health; and disability services.
Human Rights Commission
Equal Before the Law: Towards Disability Justice
The Australian Human Rights Commission (Commission)
considers that each jurisdiction in Australia requires an holistic, coordinated
response to the issues raised in this report through a Disability Justice
The Commission considers that any Disability Justice
Strategy should address a core set of principles and include certain
fundamental actions. These are set out in the following six action areas.
Action 4.1.1 Include formal recognition of the
requirement to ascertain the need for an interpreter service, communication
support worker or hearing assistance when dealing with Aboriginal and Torres
Strait Islander people.
Action 4.1.2 Provide access to an appropriate
independent communication support worker and interpreter regardless of place of
residence or geographical location.
Action 4.1.3 Align terms and conditions of bail,
bonds and restraining orders to a person's abilities and capacity to comply.
Action 4.1.4 Communicate bail decisions in a format
and mode appropriate to the person with disability.
Action 4.1.5 Provide support to remind a person of
bail conditions and support compliance.
4.2 Early intervention and
Action 4.2.1 Make available via an e-referral
program information that assists police and courts with appropriate diversion
and early intervention.
Action 4.2.2 Make the e-referral program state- or
territory-wide and link it to registered local, state and national support
Action 4.2.3 Use e-referral programs to provide
timely interventions that stream Aboriginal and Torres Strait Islander children
with disability to the support services that they need.
4.3 Increased service
capacity and support
Action 4.3.1 Design intervention and support services
age-, gender- and disability-sensitive;
appropriate for people with disabilities who have communication impairment
or complex support needs; and
culturally appropriate to the needs of women, children,
Aboriginal and Torres Strait Islander people and people from culturally and linguistically
diverse backgrounds with disabilities.
Action 4.3.2 Expand Community Visitor's schemes to
include a broader range of settings and apply to all people with disabilities.
Action 4.3.3 Provide access to advocacy and legal
services with disability expertise regardless of place of residence or
Action 4.3.4 Provide during interviews a sexual
assault counsellor, disability support advocate or specialist disability lawyer
to support adults and children with disabilities who have been sexually
assaulted or experienced violence.
Action 4.3.5 Provide to people with disabilities who
are lawfully deprived of their liberty the support, adjustments and aids they
need to meet basic human needs and participate in custodial life.
Action 4.3.6 Establish as a matter of urgency a
national Aboriginal and Torres Strait Island disability individual advocacy
Action 4.3.7 Create an assessment protocol that
assists police, courts, and correctional institutions in identifying people
with disabilities in order to determine:
the necessity for Independent Communication Support Workers, and
Disability Advocate / Support Person;
the appropriate supports and services to exercise their legal capacity
and enhance health, social and welfare outcomes; and
the requirement for procedural and age-appropriate accommodations
to ensure effective access to justice.
Action 4.3.8 Provide pre-court conferencing for
children and young people with disabilities.
Action 4.3.9 Provide witness support services to people
Action 4.3.10 Aboriginal and Torres Strait Islander
people with disabilities are provided with culturally secure assessment,
supports and services that promote full and effective participation in society
and a life with dignity.
Action 4.3.11 Adopt individual case management for
prisoners/detainees with disability, including through prison in-reach services
provided by community organisations, to provide education and support (pre- and
post-release) to assist re-integration into the community and reduce offending
Action 4.3.12 Make available quiet rooms for people
with disabilities to wait, meet or for break times in court.
Action 4.3.13 Sentencing for unpaid fines should
involve the exercise of discretion, taking into account the high incidence of
poverty among people with disabilities.
4.4 Effective training
Action 4.4.1 Develop and deliver staff training that:
improves responses and attitudes of staff
addresses the impact of intersectional experiences of disability,
gender and violence.
emphasises the rights of people with disabilities to make their own
decisions, with support if necessary, and that those decisions deserve respect.
Action 4.4.2 Provide to people with a disability,
their families and carers appropriate education and information, in a
culturally competent manner, so they are confident in using the service system
and can acquire the 'inside knowledge' that makes a system work.
accountability and monitoring
Action 4.5.1 Ensure people with disabilities are
represented on relevant governance and advisory boards.
Action 4.5.2 Include transparent, effective and
culturally appropriate complaints handling procedures.
Action 4.5.3 Implement a transparent independent
mechanism to monitor the use of restraint and seclusion of people with
disabilities in all settings, with a view to recording and minimising the use
of these practices. When the circumstances justify the use of restraint and
seclusion safeguards must in place and reported.
4.6 Better policy and
Action 4.6.1 At every stage of the criminal justice
system, recognise the importance of providing procedural and age-appropriate accommodations
to people with disabilities.
Action 4.6.2 Recognise that failure to provide
necessary accommodations to a person with disabilities can create a legitimate
mitigating circumstance that a court should consider.
Action 4.6.3 Where a person who has been found unfit
to plead is to be held in detention, demonstrate that all reasonable steps have
been taken to avoid this outcome.
Action 4.6.4 Require chief executives of relevant
agencies to report every 2 years to the Premier and the Premier’s Disability
Advisory Council in relation to access to justice for people with disabilities
in the criminal justice system.
Action 4.6.5 All criminal justice agencies monitor
participation rates by people with disabilities as victims of
crime, witnesses, accused, defendants, offenders and jurors in all parts of the
provision of adjustments and supports on critical indicators including
age, sex, gender, disability, race, type of violence.
Access to Justice Arrangements, 2014
Recommendations – Chapter 5: Understanding and
navigating the system
Legal Assistance Forums should establish Community Legal
Education Collaboration Funds (CLECFs) in their jurisdictions to ensure that
high quality legal education resources for jurisdictional and Commonwealth
matters are developed and maintained. Funding for community legal education
should be allocated to projects where the forum has identified significant
need. A database of community legal education projects should be used to share
community legal education, identify community legal education that may be out
of date and minimise duplication. Mechanisms to ensure coordination between
CLECFs on matters of Commonwealth law should be put in place.
To support the identification and assistance of
disadvantaged people with complex legal needs:
legal health checks that are developed for priority disadvantaged groups
should be funded through the proposed Community Legal Education Collaboration
Funds. The resulting material should be shared amongst providers. Legal
Assistance Forums should coordinate this activity to avoid duplication between
jurisdictions and maintain the currency of the health checks.
legal assistance and relevant non-legal service providers should be
encouraged to coordinate their services in order to provide more outreach and
holistic services where appropriate and need is greatest.
the proposed Community Legal Education Collaboration Funds should assess
the most effective way to support the legal education of non-legal community
workers. Training materials should be shared among legal assistance providers
and between jurisdictions.
Legal Assistance Forums should regularly reassess the mix of
these services in order to promote efficient service delivery by adapting to
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