International and national frameworks
This chapter outlines the various frameworks under which disability
services are provided in Australia, including:
Australia's international law obligations;
Commonwealth, state and territory roles and responsibilities;
oversight and complaints reporting mechanisms;
- recent disability‑related inquiries and reports; and
data collection used to establish the extent of violence, abuse
and neglect against people with disability.
Australia's compliance with its international law obligations as they
apply to the rights of people with disability (term of reference (f)) is also
Australia's international law obligations
Australia is a party to seven core international human rights
treaties—including the Convention on the Rights of Persons with Disabilities (Disability Convention)—and
a number of other international instruments that are relevant to the treatment
of people with disabilities in Australia.
This inquiry focuses on specific key articles of the Disability
Convention, as this convention generally captures relevant provisions of
these other frameworks as they relate to people with disability:
[T]he Disability Convention does not introduce any new human
rights but instead seeks to redefine disability and make existing human rights
realisable for people with disability by taking account of their experiences
and needs and by contesting pervasive medical and individual models of
disability which have historically encouraged the discriminatory and paternalistic
approaches to rights.
However, the committee acknowledges the relevance of all international
instruments to which Australia is a party. Those instruments will be
referred to as necessary throughout this report.
Some of these instruments are not binding in international law: for
example, the United Nations (UN) Declaration on the Rights of Indigenous
Peoples, the Declaration on the Elimination of All Forms of Violence
Against Women, and the UN Principles for Older Persons. However, this does not
mean that those instruments are irrelevant. Professor Hilary Charlesworth, an
international law scholar based at the Australian National University, has
While General Assembly resolutions are not, strictly
speaking, binding, they are increasingly regarded as a source of international
law. This is particularly the case when resolutions are couched in terms of
obligations of member nations to fulfil their terms. At the very least, resolutions
constitute an important statement of the international, community's views and
contribute to the formation of customary international law.
The Law Council of Australia, however, noted that where international
instruments are not enacted into domestic law, the realisation of those rights
Whilst the ratification of
international human rights instruments such as the United Nations Convention of
the Rights of People with a Disability (sic) provide a theoretical basis for
the understanding and interpretation of human rights for people with
disability, it does not make them enforceable. In the absence of domestic
legislation implementing such treaties as laws of Australia, the respect for,
and translation of, these rights into practice is neither assured nor likely.
Therefore it is arguable that Australia fails to meet international obligations
regarding rights of persons with disability.
Convention on the Rights of Persons
The Disability Convention provides the overarching international
framework for the protection, promotion and fulfilment of rights for people
with disability, and also aims to promote respect for the inherent dignity
of people with disability.
It contains general and specific obligations that apply to States Parties.
Key articles relevant to the terms of reference for this inquiry include:
Article 6—Women with disabilities
recognises that women and girls with disabilities are vulnerable
to multiple forms of discrimination; and
requires States Parties to take all appropriate measures to
ensure that women and girls with disabilities exercise and enjoy the human
rights and fundamental freedoms set out in the convention;
Article 7—Children with disabilities
requires States Parties to take all necessary measures to ensure
that children with disabilities fully enjoy all human rights and fundamental
freedoms on an equal basis with other children;
Article 12—Equal recognition before the law
requires States Parties to recognise that persons with
disabilities enjoy legal capacity on an equal basis with others in all aspects
of life; and
requires States Parties to take appropriate measures to provide
access by persons with disabilities to the support they may require in
exercising their legal capacity;
Article 13—Access to Justice
requires States Parties to ensure effective access to justice for
persons with disabilities on an equal basis with others (including promotion of
appropriate training for those working in the field of justice administration);
Article 16—Freedom from exploitation, violence and abuse
requires States Parties to take all appropriate legislative,
administrative, social, educational and other measures to protect persons with
disabilities, both within and outside the home, from all forms of exploitation,
violence and abuse, including their gender-based aspects;
requires States Parties to take all appropriate measures to
prevent all forms of exploitation, violence and abuse by ensuring, for example,
appropriate forms of gender‑ and age‑sensitive assistance and
support for persons with disabilities and their families and caregivers,
including through the provision of information and education on how to avoid,
recognize and report instances of exploitation, violence and abuse.
States Parties shall ensure that protection services are age‑,
gender‑ and disability‑sensitive;
States Parties shall ensure that all facilities and program
designed to serve persons with disabilities are effectively monitored by
States Parties shall take all appropriate measures to promote the
physical, cognitive and psychological recovery, rehabilitation and social
reintegration of persons with disabilities who become victims of any form of
exploitation, violence or abuse, including through the provision of protection
services. Such recovery and reintegration shall take place in an environment
that fosters the health, welfare, self‑respect, dignity and autonomy of
the person and takes into account gender‑ and age‑specific needs;
States Parties shall put in place effective legislation and
policies, including women‑ and child‑focused legislation and
policies, to ensure that instances of exploitation, violence and abuse against
persons with disabilities are identified, investigated and, where appropriate,
The committee notes that in signing the Disability Convention, Australia
made a declaration which gives some direction on how Australia interprets the
rights contained in certain articles:
...Australia recognizes that persons with disability enjoy
legal capacity on an equal basis with others in all aspects of life. Australia
declares its understanding that the Convention allows for fully supported or
substituted decision-making arrangements, which provide for decisions to be
made on behalf of a person, only where such arrangements are necessary, as a
last resort and subject to safeguards;
Australia further declares its understanding that the
Convention allows for compulsory assistance or treatment of persons, including measures
taken for the treatment of mental disability, where such treatment is
necessary, as a last resort and subject to safeguards.
Australia's obligations under the Disability
The Disability Convention entered into force on 3 May 2008 and the UN Committee
on the Rights of Persons with Disabilities (UN Disability Committee) monitors
its implementation by States Parties. Each State party is obliged to submit
regular reports to the UN Disability Committee, initially within two years of its
ratification of the Disability Convention and thereafter every four years.
The UN Disability Committee examines the reports, and makes observations
In December 2010, Australia submitted its initial report, which
was scrutinised by the UN Disability Committee in September 2013.
The UN Disability Committee made a number of concluding observations and
recommendations, in respect of which Australia is due to respond in its
combined second and third report (due in August 2018).
In general, the UN Disability Committee commended certain initiatives being
undertaken by Australia, but expressed concern with Australia's implementation
of a number of Disability Convention articles. These concerns included whether
Australia was upholding the general obligation to adopt all appropriate
measures for the implementation of rights recognised in the Disability Convention
(Article 4(1)(a)), and the implementation of specific rights in Articles 6, 12,
13 and 16. For example:
The Committee is concerned at reports of the high incidence
of violence against, and sexual abuse of, women with disabilities...the Committee
is concerned about the possibility that the regime of substitute decision‑making
will be maintained and that there is still no detailed and viable framework for
supported decision-making in the exercise of legal capacity...the Committee is
concerned at the lack of training for judicial officers, legal practitioners
and court staff on ensuring access to justice for persons with disabilities, as
well as the lack of guidance on access to justice for persons with
The UN Disability Committee also commented on 'reports of high rates of
violence perpetrated against women and girls living in institutions and other
segregated settings' and recommended:
...that the State party investigate without delay the
situations of violence, exploitation and abuse experienced by women and girls
with disabilities in institutional settings, and that it take appropriate measures
on the findings.
Comments from submitters and
Submitters and witnesses asserted that Australia was not upholding many
of its international law obligations, primarily under the Disability
Convention, but also under other relevant conventions and instruments.
Australian Lawyers for Human Rights (ALHR) contended:
Australia has breached international human rights obligations
as they apply to people with disabilities where those people have been
subjected to violence, abuse and neglect in institutional and residential
settings...Critically, these people must be free from exploitation, violence and
abuse, not be subject to torture or cruel, inhuman or degrading treatment or
punishment and have their physical and mental integrity protected.
ALHR cited a number of ways in which the rights of people with
disability in Australia are breached, including, but not limited to:
people with disability often cannot choose where they live;
people with disability are often subject to treatment that may
constitute torture, or cruel or unusual punishment;
there is a lack of specific legislation or oversight mechanisms
to prevent such treatment;
women with disability are subjected to more occurrences of
violence and restrictive practice in residential settings, and face more
obstacles to reporting such occurrences, and
the lack of appropriate restrictions on compulsory treatments.
In conclusion, ALHR has grave concerns regarding Australia's
lack of compliance with international human rights obligations provided in the [Disability Convention]. Compliance can be at
best described as poor.
The Australian Cross Disability Alliance (Disability
Alliance) provided extensive evidence in its submission that many of the
obligations on States Parties contained in the Disability Convention are not
being adequately upheld by Australia. The Disability Alliance further contended
that rights contained in other conventions Australia is signatory to are also not
being realised by people with disability:
Significantly, torture and ill-treatment of people with
disability, including violence, abuse, exploitation and neglect are frequently
subject to commentary in the various concluding observations and recommendations
from United Nations (UN) treaty bodies and the Human Rights Council following
assessment of Australia's human rights performance.
The Disability Alliance summarised the UN Disability Committee's 2013
review of Australia's performance in relation to the Disability Convention and
found that the UN Disability Committee's key concerns in relation to the
following articles were:
Articles 6 and 16: there is a high incidence of violence against
women with disability;
Article 7: there is no comprehensive national human rights
framework for children, including children with disability;
Article 14: people deemed unfit for trial can be detained indefinitely
without trial, there is an over-representation of people with disability in the
prison and juvenile justice systems, and Australian law allows for people with
disability to be subjected to medical interventions without consent;
Article 15: people with disability, are subjected to restrictive
practices such as chemical, mechanical and physical restraints in a range of settings;
Article 17: Australia continues to allow forced sterilisation.
The ACT Disability Aged Carer and Advocacy Service (ADACAS) agreed that
the rights of people with disability were not being upheld in Australia:
The interactions we have had with our clients have
highlighted to us the need for greater protection and support of people with a
disability in their interactions with various institutions. The rights of
people with disability are protected in this regard in the Convention on the
Rights of People with Disabilities 2006, which states in Article 16 (1) that:
Parties shall take all appropriate legislative, administrative, social,
educational and other measures to protect persons with disabilities, both
within and outside the home, from all forms of exploitation, violence and
abuse, including their gender-based aspects.'
It is evident from what we see in our work that this
protection is not been afforded to people with disabilities.
Action for More Independence in Disability Accommodation argued that the
accommodation restrictions faced by people with disability were also breaches
of Australia's Disability Convention obligations and had flow on effects for
line with that convention, people with a disability should have the right to a
choice of who they live with and where they live and, further, that people with
a disability should have the right to good quality housing which is accessible,
affordable and non‑institutional, and the right to live in the community
with access to the support they need to participate in the community and have a
good life. These have all been signed up to but have not been delivered on, and
it is our contention that if more work is done to actually deliver on those
convention standards and benchmarks then this will reduce abuse, and that,
after all, is what we would hope to achieve.
ALHR agreed with this position:
Australia is failing to comply with international human
rights obligations by operating institutions and offering residential settings
which do not allow people to choose who they live with or access services in
the community which are responsive to their needs.
Ms Mary Woodward, a former disability communications intermediary in the
United Kingdom, provided evidence that she believed Australia's justice system
was not inclusive enough to live up to obligations within the Disability
I think that, despite the [Disability Convention] our current
judicial systems do not provide enough modifications for people with
communication difficulties to have a voice in the justice system.
The UN Disability Committee has commended certain disability-related initiatives
undertaken in Australia, notably the adoption of the National Disability
Strategy, introducing the National Disability Insurance Scheme (NDIS), and the
Australian Law Reform Commission's (Law Reform Commission) inquiry into
disability justice issues.
However, evidence provided indicates Australia has more to do, to ensure
people with disability enjoy full realisation of their rights. The committee
finds the evidence suggests that the institutional nature of some service
delivery contexts contributes to environments that increase the prevalence of
violence, abuse and neglect.
The committee notes the evidence which indicates Australia has failed to
uphold the rights of people with disability across a number of United Nations
conventions, not just the Disability Convention.
The committee particularly notes the UN Disability Committee's comments
on the need for improved access to justice for people with disability, more
appropriate decision‑making frameworks and the need for more protection
for women and children with disability. The committee also notes the
recommendation for Australia to close residential institutions and develop
nationally consistent measures for data collection.
Commonwealth, state and territory roles and responsibilities
Prior to 2009, the Commonwealth had a hands-off role of funding states
and territories to deliver disability services. The Australian Government took
a more proactive role following the signing of the Disability Convention in
2009 and the development of the NDIS. Currently, the Commonwealth, state and territory
governments share responsibility for the provision of disability services in
Australia, with the Australian Government taking a lead role in policy
development and the enforcement of standards.
The governments' roles and responsibilities are defined in high-level
agreements that have been negotiated in recent years, as governments seek
to address the demand for quality services for people with disabilities. Five
key initiatives are discussed below:
National Disability Agreement (NDA);
National Disability Strategy, 2010–2020 (NDS);
NDIS (formerly known as DisabilityCare Australia);
National Plan to Reduce Violence Against Women and their Children
2010‑2022 (National Plan); and
National Framework for the Protection of Australia's Children (Child
National Disability Agreement
In November 2008, the Council of Australian Governments (CoAG) agreed
the Intergovernmental Agreement on Federal Financial Relations
(Intergovernmental Agreement). This agreement established the overarching
framework for the Commonwealth's financial relations with the states and territories,
and intends to provide for: increased flexibility in service delivery; a
clearer specification of the roles and responsibilities of each level of
government; and an improved focus on accountability for better outcomes and
Roles and responsibilities
Schedule F of the Intergovernmental Agreement sets out six
National Agreements that define the objectives, outcomes, outputs, performance
indicators and benchmarks, and clarify the roles and responsibilities, that
guide governments in service delivery across a particular sector.
One of these National Agreements is the NDA that provides for both separate
and shared roles and responsibilities from 1 January 2009.
The Commonwealth's role is
largely financial and includes:
provision of funds to states and territories, to contribute to
the achievement of the objective and outcomes;
funding disability services delivered by states in accordance
with their responsibilities under the agreement for people aged 65 years and
over (50 years and over for Aboriginal and Torres Strait Islander peoples);
where appropriate, investing in initiatives to support nationally
agreed policy priorities, in consultation with states and territories; and
ensuring that Commonwealth legislation is aligned with national
priority, reform directions and the Disability Convention.
The states and territories' roles and responsibilities are:
the provision of disability services (except disability
employment services which are provided by the Commonwealth), including:
regulation, service quality and assurance;
service planning; and
workforce and sector development;
in a manner which most
effectively meets the needs of people with disability, their families and
carers, consistent with local needs and priorities;
(except for Victoria and Western Australia) funding and
regulating basic community care services for people under the age of 65 years
in line with their principal responsibility for delivery of other disability
services under the agreement, except Aboriginal and Torres Strait Islander peoples
aged 50 years and over for whom the cost of care will be met by the
(except for Victoria and Western Australia) funding packaged
community and residential aged care delivered under Commonwealth aged care
programs for people under the age of 65 years, except Aboriginal and Torres
Strait Islander peoples aged 50 years and over;
ensuring that state and territory legislation and regulations are
aligned with the national policy and reform directions; and
where appropriate, investing in initiatives to support nationally
agreed policy priorities, in consultation with the Commonwealth.
Commonwealth funding amounts
Under the Intergovernmental Agreement, the Commonwealth committed
to ongoing financial support for service delivery (clause 19). For the NDA,
this support is provided through general revenue assistance, the NDA Specific
Purpose Payment (NDA SPP) (indexed annually in accordance with defined growth
factors, currently 3.5 per cent),
and National Partnership payments.
On commencement of the NDA, the Commonwealth committed to total
funding of $5.3 billion over five years for the NDA SPP.
In 2015–16 Budget, the Government
announced that total funding for the NDA SPP in 2014–15 amounted to $1.39
billion. The budget provided for $1.44 billion in 2015–16, with $4.66 billion
in funding over the forward estimates.
The division of this funding across states and territories is shown in Figure
Figure 2.1: National Disability Agreement
Specific Purpose Payments, states and territories, 2014–19.
Source: Australian Government, Budget measures: budget
paper no. 3: 2015–16, 2015, p. 40.
It must be noted that although the NDA states that Commonwealth
legislation must be aligned with the Disability Convention, it does not require
that state and territory legislation must be as well. Clearly this creates a
potential for key parts of domestic law to fail to meet the requirements of the
Disability Convention. Regardless of this, the Commonwealth still retains
the overarching obligation to ensure that all treatment of people with
disability in Australia is in keeping with the rights enshrined in the
Disability Convention, regardless of whether the Commonwealth has explicitly
conferred that obligation in a domestic capacity onto the state and territory
National Disability Strategy
In February 2011, CoAG endorsed the NDS, a 10 year national plan that
aims to improve life for people with disability, their families and carers.
It is a collaborative strategy which involves all levels of government. As each
level of government has specific roles and responsibilities across a wide range
of policies and programs, the NDS focuses on creating a more unified approach:
...this is the first time in Australia that a national strategy
articulates long‑term goals across a number of key policy areas which
impact on people with disability, their families and carers. It also provides leadership
for a community-wide shift in attitudes to look beyond the disability.
The purpose of the NDS is to:
establish a high level policy framework to give coherence to, and
guide government activity across, mainstream and disability‑specific
areas of public policy;
drive improved performance of mainstream services in delivering
outcomes for people with disability;
give visibility to disability issues and ensure they are included
in the development and implementation of all public policy that impacts on
people with disability; and
provide national leadership toward greater inclusion of people
The NDS is structured around six broad policy areas, which align with
the principles articulated in Article 3 of the Disability Convention.
Under each of these areas, the desired outcomes and agreed policy directions are
identified, together with areas for future action that are prioritised against
specific timelines in the implementation plans.
Policy Area 2—Rights protection,
justice and legislation
Policy Area 2—Rights protection, justice and legislation aims to
promote, uphold and protect the rights of people with disability. It has five
Policy Direction 3: People with disability have access to justice
to justice for people with disability on an equal basis with others requires appropriate
strategies, including aids and equipment, to facilitate their effective
participation in all legal proceedings. Greater awareness is needed by the
judiciary, legal professionals and court staff of disability issues.
Policy Direction 4: People with disability to be safe from
violence, exploitation and neglect
There is a range of evidence
which suggests that people with disability are more vulnerable to violence,
exploitation and neglect. People with disability fare worse in institutional
contexts where violence may be more common. People with disability are more
likely to be victims of crime and there are also indications that women face
Policy Direction 5: More effective responses from the criminal
justice system to people with disability who have complex needs or heightened
People with disability who have
complex needs, multiple disability and multiple forms of disadvantage face even
greater obstacles within the justice system. There is an over-representation of
people with an intellectual disability both as victims and offenders in the
criminal justice system. Significant rates of acquired brain injury are found among
male and female prisoners. Research into intellectual disability and acquired
brain injury has demonstrated the presence of co-morbidities with mental
illness and substance abuse. This complex profile indicates the need for a
Future action areas identified for Policy Area 2—such as improving the
reach and effectiveness of complaints mechanisms, and ensuring supported
decision-making safeguards are in place, including accountability of
guardianship and substitute decision-makers—are discussed in more detail in
chapters four, five, and six.
Comments from submitters and
While some submitters and witnesses to this inquiry cited provisions
within the NDS as containing general standards that disability services should
adhere to, few submitters provided any critical analysis of the NDS
itself, with the following exceptions.
Adelaide People First commented on the lack of strategic implementation:
Another challenge is ensuring the [NDS]
is implemented. The [NDS] has barely rated a mention by anyone with influence
since the 2013 Federal Election. The Federal
Coalition Government has only barely mentioned the [NDS] they haven't explained what it or its purpose in
implementing a holistic approach to disability policy reform. No one in the
broader community even knows of its existence or its purpose.
First People's Disability Network Australia agreed that implementation
of the NDS had stalled:
I could not agree more that the [NDS] is something that needs
to be reinvigorated and needs a mechanism to oversee it.
Families Australia and Children with Disability Australia commented that
the NDS did not adequately address the needs of children and young people with
The committee is concerned that there appears to be a lack of continued
focus on the NDS. The committee is of the view the NDS should be updated to
bring the framework into line with other relevant protective instruments, together
with a renewed focus on implementation.
National Disability Insurance
Following release of the NDS, governments focussed on developing a
strategic framework for implementing and evaluating the strategy.
In addition, the Australian Government requested the Productivity
Commission (PC) to inquire into a long‑term disability care and support
The Productivity Commission inquiry will examine the
feasibility, costs and benefits of replacing the current system of disability
services with a new approach which provides long-term essential care and
support for people with severe or profound disabilities however acquired.
Productivity Commission report
In August 2011, the PC released its report Disability Care and
The PC found:
The current disability support system is underfunded, unfair,
fragmented and inefficient, and gives people with a disability little choice
and no certainty of access to appropriate supports.
There should be a new national scheme—the National Disability
Insurance Scheme (NDIS)—that provides insurance cover for all Australians in
the event of significant disability.
CoAG promptly agreed with the need for a major reform of disability
services through a NDIS and Australian governments immediately began
collaborative efforts to develop the scheme.
Introduction of the NDIS commenced in two stages at five launch sites:
in Tasmania, South Australia, the Barwon area of Victoria, and the Hunter
area of New South Wales (1 July 2013); and the Australian Capital Territory,
the Barkly region of the Northern Territory, and the Perth Hills area of
Western Australia (1 July 2014).
The full roll out of the scheme will occur progressively in New South
Wales, Victoria, Queensland, South Australia, Tasmania and the Northern
Territory from 1 July 2016.
In the Australian Capital Territory, people with disability are transitioning into
the NDIS based on their date of birth or their academic year (for school
age children), in accordance with a flexible timetable.
Chapter nine examines the challenges and opportunities presented by the NDIS
rollout in reducing violence, abuse and neglect against people with disability.
National Plan to Reduce Violence
against Women and their Children
In February 2011, the Australian Government announced the National Plan,
a 12 year strategy endorsed by the Commonwealth, states and territories, to reduce
violence against women and children.
There will be four three‑year action plans, two of which have been
released: the First Action Plan: Building a Strong Foundation 2010–2013
(First Action Plan); and the Second Action Plan: Moving Ahead 2013–2016
(Second Action Plan).
First Action Plan: Building a
Strong Foundation 2010–2013
The First Action Plan established the groundwork for the National Plan—'the
strategic projects and actions that will drive results over the longer term
while implementing high-priority actions in the short term'.
Each jurisdiction developed its own implementation plan to reflect its
priorities and all jurisdictions collaborated on four joint priorities:
Building Primary Prevention Capacity; Enhancing Service Delivery; Strengthening
Justice Responses; and Building the Evidence Base. For example, all
jurisdictions agreed to work toward development of a comprehensive National
Data Collection and Reporting Framework, to be in place by 2022.
Key initiatives of the First Action Plan included establishment of
Australia's National Research Organisation for Women's Safety and 1800RESPECT,
Australia's first national professional telephone and online counselling
service for women experiencing, or at risk of, domestic and family violence and
Stop the Violence project
In addition, Women With Disabilities Australia (WWDA) was funded to
investigate and promote ways to support better practice and improvements in service
delivery and government responses, to improve the quality of life for women and
girls with disabilities experiencing or at risk of violence (Stop the
A Project Steering Group oversaw the project which examined in detail:
...the prevalence and nature of violence against women and
girls with disability as well as the responses and services available for
addressing such violence. This included the particular susceptibility of
Aboriginal and Torres Strait Islander women with disability, and women with
disability who are of culturally and linguistically diverse background, and
women with disability who are of diverse sexual orientation, gender identity or
In October 2013, the Project Steering Group hosted a high-level,
cross-sector National Symposium. In its Report of the Proceedings and
Outcomes, WWDA identified six key thematic areas and two possible
future mechanisms to support the development of good policy and the provision
of good practice in service provision:
Area 1—Information education and capacity building for women and
girls with disabilities;
Area 2—Awareness raising for the broader community;
Area 3—Education and training for service providers;
Area 4—Service sector development and reform;
Area 5—Legislation, national agreements and policy frameworks;
Area 6—Evidence gathering, research and development;
Area 7—Establishment and development of a Virtual Centre for the
Prevention of Violence Against Women and Girls with Disabilities; and
Area 8—Establishment of a National Women with Disabilities Expert
Panel on the Prevention of Violence Against Women and Girls with Disabilities.
The outcomes of the National Symposium informed the development of the
Second Action Plan.
Second Action Plan: Moving Ahead
The Second Action Plan channels government efforts toward ongoing and
new priorities, and further engages sectors, groups and communities.
There are five national priorities:
Driving whole of community action to prevent violence;
Understanding diverse experiences of violence;
Supporting innovative services and integrated systems;
Improving perpetrator interventions; and
Continuing to build the evidence base.
Twenty-six practical actions are identified, with the plan
These actions are designed to drive national improvements and
most involve efforts of all governments. They will not all necessarily be
progressed by all jurisdictions, or in the same way. Jurisdictions will focus
on local priorities and delivery approaches.
Under National Priority Two: Understanding diverse experiences of
violence, Action 12 specifically focuses on tailoring responses to meet the
needs of women with disability:
Under the Second Action Plan, governments will work with
expert organisations, including Women With Disabilities Australia to prioritise
and implement key outcomes from the Stop the Violence project. This will
bringing together and disseminating good practice information on
preventing violence against women with disability;
training for frontline workers to recognise and prevent violence against
women and children with disability; and
providing accessible information and support in National Plan
The Second Action Plan will be independently evaluated in 2016–2017,
with a key question regarding the effectiveness of the National Plan in
engaging with and supporting women with diverse experiences or who are more
vulnerable to violence (such as women with disability).
National Framework for the
Protection of Australia's Children
In April 2009, CoAG released the Child Protection Framework which aims
to ensure that Australia's children and young people are safe and well.
To achieve this high-level outcome, governments and the non-government
sector committed to achieving a substantial and sustained reduction in child
abuse and neglect in Australia over time. The Child Protection Framework
identifies the following six supporting outcomes:
children live in safe and supportive families and communities;
children and families access adequate support to promote safety
and intervene early;
risk factors for child abuse and neglect are addressed;
children who have been abused or neglected receive the support
and care they need for their safety and wellbeing;
Aboriginal and Torres Strait Islander children are supported and
safe in their families and communities; and
child sexual abuse and exploitation is prevented and survivors
receive adequate support.
Ms Carolyn Frohmader, Executive Director of WWDA, commented:
So you have these national frameworks and policy frameworks...Then
over here we have the National Plan to Reduce Violence against Women and their
Children. Then we have the National Framework for Protecting Australia's
Children. The National Disability Strategy is not connected to the national
violence plan. The national violence plan is only focused on intimate partner
violence, and does not include institutional settings. The way the
National Disability Strategy addresses violence against people with
disabilities is to say 'make sure we implement the national plan to prevent
violence against women'.
The Committee notes with some concern, the evidence provided that there
is a lack of cross-over with various national policies and approaches that are
relevant to women and children with disability. The committee is concerned that
there does not appear to be provision for follow-up evaluations of how those
policies are being implemented, or their effectiveness. Of particular concern
is the lack of inclusion of the specific needs of women and children with
disability within mainstream protective frameworks.
Oversight and complaints reporting mechanisms
As indicated throughout this chapter, there are a number of
international and national policy frameworks that seek to safeguard the rights
of people with disability. Each of these inter-related frameworks has its own
review and reporting mechanisms. However, the states and territories are most
often responsible for the provision of disability services in Australia. Accordingly,
each jurisdiction has its own policy and legal frameworks that are not
necessarily consistent or clear.
Evidence to the inquiry indicated that the existing oversight and
complaints reporting mechanisms vary considerably state-to-state. Disability
advocates and people with disability described mechanisms that are complicated
and inadequate in terms of access and enforceable outcomes.
Chapter four presents a detailed examination of the legal and policy
frameworks for reporting and investigating violence, abuse and neglect of
people with disability.
Recent disability‑related inquiries and reports
In recent years, along with the increased government focus on disability
policy and service delivery, there have been a number of disability-related
inquiries. These inquiries have focussed on matters such as the
vulnerability of people with disabilities to violence, abuse or neglect, the
ability of people with disabilities to access the criminal justice system, and safeguards
within the disability services sector. This section of the report highlights
a few of these inquiries.
In August 2015, the Family and
Community Development Committee tabled its interim report in the Inquiry
into Abuse in Disability Services. Stage 1 of the inquiry examined
Victoria's regulation of the disability services system, and made eight
recommendations on the proposed NDIS quality and safeguarding framework.
The final reporting date is 1 March 2016 and will examine what safeguards are
required in Victoria prior to the transition to the NDIS.
In June 2015, the Victorian
Ombudsman tabled the Phase 1 report in the Investigation into disability
abuse reporting. The report examined the effectiveness of statutory
oversight in Victoria, and concluded that, despite areas of good practice, the
arrangements are 'fragmented, complicated and confusing, even to those who work
in the field'. Consequently, the system is failing to provide coherent and
consistent protection to people with disabilities.
Phase 2 will report late in 2015 and will look in greater depth at the process
for reporting and investigating abuse, drawing on lived experiences.
Australian Human Rights Commission (AHRC)
In February 2014, the AHRC presented
its report, Equal before the law: towards disability justice strategies.
The AHRC found that access to justice in the criminal justice system for people
with disability who need communication supports, or who have complex and
multiple support needs, is a 'significant problem in every jurisdiction in
Australia', and recommended that each jurisdiction develop an 'holistic, over‑arching'
disability justice strategy.
The committee notes that South Australia is the only jurisdiction so far to
implement a disability justice strategy consistent with this recommendation
(discussed in detail in chapter 6), and the Queensland Department of Justice
and Attorney-General is in the process of implementing a disability service
Victorian Equal Opportunity and Human Rights Commission (VEOHRC)
VEOHRC's report titled Beyond
doubt: the experiences of people with disabilities reporting crime stated
that, in Victoria, people with disability are routinely denied access to
justice and safety, as the criminal justice system is ill‑equipped to
meet their needs. The report identified some significant and complex barriers
to the reporting of crime, noting that people with disability fear that they
will not be believed, or will be seen as lacking credibility, when a crime
is reported to police.
The inquiry into Equality,
Capacity and Disability in Commonwealth Laws examined Commonwealth laws and
legal frameworks that deny, or diminish, the equal recognition of people with
disability as persons before the law and their ability to exercise legal
capacity. The Law Reform Commission noted that most laws relating to legal
capacity are entrenched in state law and considered that the Commonwealth could
model the principles of individual autonomy and independence, as a template for
state and territory reform.
Royal Commission into Institutional Responses to Child Sexual
The 2014 Interim Report stated
that children with disabilities are more vulnerable to sexual abuse than
children without disabilities, and are often segregated, to varying degrees,
from the mainstream community for long periods, which increases the risk of
abuse. The RC commented that pre‑employment screening is an important
first step in preventing abuse but screening is not consistent across
Australia.  Further,
governments do not agree on whether a national system is appropriate or
In August 2015, the RC recommended that states and territories make legislative
amendments to implement a series of standards identified in its working with
children check report, and that the Commonwealth facilitate a national model
for working with children checks.
People with Disability Australia (PWDA)
Rights Denied: Towards a
national policy agenda about abuse, neglect and exploitation of persons with
cognitive impairment was a 2009 research study that investigated the
barriers encountered by people with cognitive disabilities, which prevented, or
inhibited, realisation of the human right to freedom from abuse, neglect and
exploitation, and the attainment of appropriate remedies for the violation of
Chapters five and six examine specific aspects of, and recommendations
in, these reports, as well as the committee's views on the need for a national
approach to improving access to justice for people with disability.
Data on violence, abuse and neglect
The committee notes that there are currently no nationally consistent
data sets available to describe the extent of violence, abuse and neglect of
people with disability. This raises two fundamental problems. First, there is
overwhelming anecdotal evidence of violence, abuse and neglect of people with
disability—made in submissions and during public hearings to this inquiry.
There is a need to formally recognise and quantify the extent of this abuse.
The second issue is that the absence of official nationally consistent data
sets in itself is a critical roadblock to these issues being addressed. Nationally
consistent data on this issue is an essential element to guide long-term policy
development to eliminate instances of violence, abuse and neglect against
people with disability.
In a summary paper entitled The nature and extent of sexual assault
and abuse in Australia, the Australian Institute of Family Studies notes
that there 'is no standard national data collection that includes the
experiences of sexual violence amongst adults with a disability'. This paper
was only able to identify two findings that shed some light on the extent of
this issue. First, and most startlingly, is that 'women with intellectual
disability are 50–90 per cent more likely to be subjected to a sexual assault
than women in the general population'. Second, in 2007 the Victorian Police
found that over 25 per cent of all sexual assault victims identified as having
The two main surveys conducted by the Australian Bureau of Statistics
(ABS) on disability do not collect data on violence, abuse or neglect:
Despite being the major national data collection regarding
the status and experiences of adults with a disability, the ABS Survey of
Disability, Ageing and Carers, does not invite participants to report on their
experiences of violence or abuse. Similarly, the ABS (2006) Personal Safety
Survey report, which specifically investigates experiences of violence, does
not identify the disability status of participants, and the International
Violence Against Women Survey...specifically excluded women with an illness or
disability from the sample for the survey.
This is despite evidence that 'approximately 20 per cent of
Australian women, and 6 per cent of men, will experience sexual violence in
PWDA also noted the shortcomings of these two surveys and also the
General Social Survey conducted by the ABS:
The Australian Bureau of Statistics (ABS) Personal Safety
Survey (PSS), generally understood to be the most accurate source of national
data about prevalence of violence, does not disaggregate by disability, Indigenous
status or mental illness, and only recruits those currently residing in private
dwellings, excluding institutional residential settings. It also excludes those
who might require some form of communication support—such as some people with
intellectual disability, some Deaf people, some people with hearing impairment,
and people from culturally and linguistically diverse backgrounds.
Additionally, it frames its questions around intimate partner violence, thus
excluding the relationships in which people with disability experience
Similarly, although the General Social Survey (GSS) does
disaggregate by disability status, it also excludes institutional residential
settings. The Disability, Ageing and Carers (DAC) survey does not address any issues
around violence, abuse or neglect, and relies on carers answering on behalf of
people with disability. In all cases, these surveys exclude those who live in
remote areas, which means that Aboriginal and Torres Strait Islander people
with disability living in these areas (a cohort who may be at particular risk)
are excluded from the data.
In correspondence to the committee, the ABS noted that it is currently
undergoing a 'major redesign of [its] statistical collections, methods,
products and services' in order to 'extract greater value from all available
data'. The ABS highlighted that it is collaborating closely with a range of
government agencies and non-government entities on a range of projects. The
committee is most interested in the potential for the National Centre for
Longitudinal Data to commence a longitudinal study of people with disability.
Part of this study could focus on the prevalence of violence perpetrated
against people with disability.
In the most recent PSS (2012), a disability descriptor question was
included; however, this data did not include people living in institutional
care or differentiate between physical or sexual violence. It is the
committee's view that there is a fundamental need to disaggregate this data
further. The ABS also noted that the 2014–15 National Aboriginal and Torres
Strait Islander Social Survey is currently collecting information on whether a
person is living with a disability with these statistics being made available
from April 2016.
Whilst the committee reserves its judgement on the adequacy of these
statistics, it commends the ABS on these preliminary steps to collect data that
disaggregates on the basis of disability.
The Australian Institute of Health and Welfare compiles an annual report
titled Child Protection Australia. This publication contains data and
analysis on notifications and substantiations of child abuse and neglect within
the child protection system. Currently this report does not disaggregate data on
the basis of disability. The committee understands that one of the
objectives of the Child Protection National Minimum Data Sets (CP NMDS) is
to 'allow reporting in identified priorities areas (such as disability,
cultural and linguistic diversity and locality)'.
The committee considers that finalisation of the CP NMDS should be
prioritised as this additional data will be a useful addition to policy makers
and service providers in this area.
Another dataset that may be helpful in better understanding this issue
is held by the National Disability Abuse and Neglect Hotline. This hotline is
operated through the Department of Social Services (DSS) with its purpose being
to allow callers to report abuse or neglect against both government‑funded
and private organisations. The hotline refers the caller to the most
appropriate body to help resolve the complaint or allegation.
Evidence to the committee suggests that data collected by this service is not
being made available to the community:
The national disability abuse hotline, which now has carriage
under the CRRS [Complaints Resolution and Referral Service], I think, with
People with Disability Australia, data does not go anywhere. The data goes to
government and you are not able to FOI that data...
It is not available via FOI. I know that a number of people
have tried it.
In its submission to the inquiry, DSS provided a breakdown of the types
of calls it has received since 2012. In the period July 2012 to June 2013,
there were 404 complaints received by the hotline and 346 during July 2013 to
June 2014. The most prevalent complaints were systemic abuse (23 per cent),
physical abuse (16 per cent), psychological abuse (16 per cent), physical
neglect (15 per cent) and emotional neglect (nine per cent). Although this
helps to begin to understand the extent of violence, abuse and neglect that is
perpetuated against people with disability, the submission noted:
It should also be remembered that the Hotline is one of many
ways to report a case of abuse or neglect and that people may be more inclined
to report some types of abuse or neglect compared to others, for example sexual
Despite providing some data to the committee in its submission, Mr James
Christian from DSS acknowledged that the department is selective in what
hotline data is released and who it is released to:
I note that some submissions to the committee have called on
DSS to share data collected by the National Disability Abuse and Neglect
Hotline, a service funded by DSS. DSS recognises that collecting
meaningful data on this issue is a challenge and we are keen to do what we can
to be part of the solution. To this end, our submission includes data from the
hotline, and I trust this has been helpful in your deliberations. DSS does not
routinely publish the hotline data, but we have released data to researchers in
the past and will continue to consider on a case-by-case basis as we receive
those requests. The hotline data has some limitations that must be considered
carefully each time it is used.
The UN Disability Committee has commented on the issue of data
collection in Australia, and regretted 'the low level of disaggregated data
collected on persons with disabilities and reported publicly' and the 'little
data on the specific situation of women and girls with disability', in
particular those who identified as Aboriginal and Torres Strait Islander
It recommended that Australia:
...develop nationally consistent measures for data collection
and public reporting of disaggregated data across the full range of obligations
provided for in the [Convention on the Rights of People with Disabilities], and
that all data be disaggregated by age, gender, type of disability, place of
residence and cultural background.
The UN Disability Committee made similar comments with respect to the
situation of children with disability in child protection data and 'the paucity
of information on children with disabilities, in particular indigenous
children, alternative care for children with disabilities and children with
disabilities living in remote or rural areas'.
Accordingly, it recommended that Australia:
...systematically collect, analyse and disseminate data,
disaggregated by gender, age and disability, on the status of children,
including any form of abuse and violence against children...[and] commission and
fund a comprehensive assessment of the situation of children with disabilities
in order to establish a baseline of disaggregated data against which future
progress towards the implementation of the [Convention on the Rights of People
with Disabilities] can be measured.
A key initiative of the NDS was the introduction of a periodic report
using trend data to track national progress for people with disability in
The first National Disability Strategy Progress Report was presented to CoAG in
The committee is particularly concerned by the lack of specific data on
Aboriginal and Torres Strait Islander people with disability. The AHRC submitted
that Aboriginal and Torres Strait Islander peoples are significantly affected
by disability compared with the non-Indigenous population and noted that
Aboriginal and Torres Strait Islander peoples with disability experience higher
rates of exploitation, violence and abuse.
In its 2013 study on indigenous persons with disability, the UN Permanent
Forum on Indigenous Issues found that violence against indigenous women and
girls with disability occurs in schools, at home, in residential institutions
and in disability services.
The study found that available research on Indigenous people with disability:
...shows a serious gap in the implementation and enjoyment of a
wide range of rights, ranging from self-determination and individual autonomy
to access to justice, education, language, culture and integrity of the person.
There are significant unmet needs and rights that are not being addressed, of
which gaps in access to health, life expectancy, educational qualifications,
income, safety of the person and participation in decision‑making are
just a few examples.
The committee is also concerned by the higher rates of self-harm and
suicide amongst young people with disability. In 2014, the National Children's
Commissioner, Ms Megan Mitchell, in the Children's Rights Report 2014,
stated that children and young people with disability can be disproportionately
affected by intentional self‑harm and suicidal behaviour:
A US study found that 30–64 per cent of children and young
people with an intellectual disability develop comorbid mental health
disorders, a rate of around 3-4 times that of their peers, including higher
rates of depression, anxiety and psychosis. Children and young people with
co-occurring chronic physical and mental health conditions are also said to
have higher probabilities of self-harm, suicidal ideation, and suicide attempts
when compared with healthy peers. Research also suggests an association between
chronic pain and suicidality in children and young people.
The AHRC echoed this view and in its submission recommended that further
research be conducted to validate a link between institutional and residential
settings and intentional self‑harm and suicidal behaviour.
The committee concurs with the proposition that where data is collected,
it must be in a manner that is 'inclusive of all people with disability'.
Methodologies that exclude people with disability on the basis of where they
live—for example, those in residential or institutional settings, or in
regional or remote locations—or how interviews are conducted—for example,
asking a carer to speak on behalf of a person with disability—is clearly
inappropriate. Exclusion of people with disability from the statistics through
the omission of a disability identifier question is also not appropriate.
It is the committee's position that where data exists, it should be made
available, albeit in a way that takes into consideration any personal
identifiers. It is also the committee's position that where there is an absence
of data, that it should be a priority for that data to be collected so that the
quantum of violence, abuse and neglect against people with disability can be
The committee supports the view of PWDA that the lack of data on this
issue undermines the capacity for evidence-based policy development. This will
impact some of the key NDIS policies, such as the quality and safeguards framework
which is currently under development. The role of the NDIS quality and safeguards
mechanism will be discussed further in chapter nine.
The committee agrees with the AHRC's suggestion that the collection and
publication of disaggregated data could be incorporated into the NDS reports,
and provide a foundation for the development of future implementation plans.
A number of expert inquiries and reports have been published in recent
years, each looking into specific aspects of disability service provision and
the realisation of rights for people with disability.
Many of the recommendations from those inquiries and reports were put
forward as being fundamental to the realisation of rights for people with
disability, and essential to Australia meeting its obligations under the
Disability Convention and other relevant human rights instruments.
The committee remains concerned that there is no timetable from relevant
levels of government for the implementation of these essential measures, and therefore
no foreseeable timetable for Australia fully adhering to the Disability
Convention. The impact this has had on violence, abuse and neglect of
people with disability is highlighted in following chapters of this report.
The committee also remains concerned with Australia's declaration
regarding reservations on key articles of the Disability Convention.
The committee is further concerned that key recommendations of the UN Disability
Committee are not being appropriately implemented into Australian law and
The committee is also concerned with the lack of reliable statistical
data available for policy development to eliminate violence, abuse and neglect
of people with disability. The use of passive and active exclusion of people
with disability from the statistical record of our country means that issues of
violence, abuse and neglect continue to remain out-of-sight and out-of-mind.
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