On 28 September 2023, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Royal Commission) submitted its Final Report to the Governor General (Final Report). The Final Report contains 222 Recommendations and is the culmination of four and a half years of work since the Royal Commission was established on 4 April 2019, including:

• 32 Public Hearings;
• 1,785 Private Sessions;
• 2 Ceremonial Sittings;
• 3 Roundtables;
• 9 Workshops; and
• 700 engagement activities.

Over the course of its activities, the Royal Commission received 7,944 submissions from individuals, disability advocacy organisations, research organisations, peak bodies, government departments and professional organisations. The Royal Commission produced 14 Issues Papers, receiving over 700 responses.

The Final Report reflects the significant work of the Royal Commission and proposes wide-ranging structural changes to safeguard people with disability from violence, abuse, neglect and exploitation, respond to discrimination and support their inclusion in all aspects of Australian society, including healthcare, education, employment and accommodation settings. Whilst the majority of the 222 Recommendations are directed to the Commonwealth, a small number are directed toward the National Disability Insurance Scheme Quality and Safeguards Commission (NDIS QSC), National Disability Insurance Agency (NDIA) and the State and Territory governments.

A Disability Royal Commission Taskforce

In response to the Final Report, the Minister for Social Services, the honourable Amanda Rishworth MP, and Minister for the National Disability Insurance Scheme (NDIS), the honourable Bill Shorten MP, have announced that they will be standing up a Disability Royal Commission Taskforce, within the Department of Social Services to assess 'how the individual Recommendations are linked together, understanding the broader implications of these Recommendations and sequencing the Government's response'. The Commonwealth appears to be proposing a 'staged approach' to responding to the Final Report, which could see reforms rolled out over an extended period of time. Minister Rishworth has indicated that she is hopeful that the Commonwealth will be able to provide a progress report on the work of the Taskforce 'early next year'. We note however, that the Royal Commission recommended that the Commonwealth respond to the Final Report, in writing, no later than 31 March 2024 (R12.1) and it is therefore unclear whether this timeframe will be achieved.

Disability reform roadmap

Pending a response from the Commonwealth, it is difficult to say with certainty which Recommendations will be adopted, or what the roadmap for reform will look like. Some Recommendations in the Final Report have been directed towards State and Territory governments, as well as the NDIS QSC and the NDIA. Considering the coordinated approach that government have taken in the past, it seems unlikely that State and Territory governments will progress any specific Recommendations in isolation of the Commonwealth's response. However, it is possible that the NDIA or the NDIS QSC may implement some of the Recommendations directly relevant to them, particularly the Recommendations that are solely within the power of those agencies to implement, in isolation of the Commonwealth.

Given the Commonwealth has indicated that it will consider and implement the Royal Commission's Recommendations via a 'staged approach' we suspect the disability sector, and adjacent sectors that provide services to people with disability, will experience a period of extended legislative and policy reform. While providers and others in the sectors highlighted in the Final Report can use the Recommendations as a guide to what reforms may occur in the future, it may be preferable to await the Commonwealth's response in order to prepare in a more considered way as the reforms are implemented by the Commonwealth, State and Territory Governments and associated agencies.

Key recommendations from the Final Report:

At a high level, we consider the following recommendations from the Final Report to be particularly significant:

• The implementation of a Disability Rights Act (and associated Recommendations around the content of that Act) (R4.1 – R4.21).
• Amendment of the Disability Discrimination Act 1992 (Cth) to, amongst other things, create an offence for vilification on the basis of disability (R4.30).
• The establishment of a new National Disability Commission as an independent statutory body under the Disability Rights Act (R5.5).
• The establishment of new governance arrangements for disability policy, including the creation of a new Commonwealth Government portfolio with responsibility for policies and programs related to disability and carers, an associated new ministerial position (the Minister for Disability Inclusion) and a new Department, the Department of Disability Equality and Inclusion, to separate disability policy from the Department of Social Services (R5.6).
• The creation of a new supported decision-making framework, through the State and Territory governments, amending the State-based guardianship legislation, with associated changes to the Guidelines for Australian Tribunals: Maximising the participation of the Person in guardianship proceedings, to align this legislation with a supported-decision making approach to decision making for people with disability who have impaired decision-making capacity (R6.4 – R6.10).
• Embedding equitable access to healthcare in key policy instruments, including the Australian Charter of Healthcare Rights (R6.31).
• Standardisation and strengthening of legal frameworks relating to the use of restrictive practices across disability, health, education and justice settings (R6.35).
• That State and Territory governments should take immediate steps to ensure that certain forms of restrictive practices are not used, including, but not limited to, the seclusion of children in disability service settings and the use of prone or supine holds (R6.36).
• A range of actions targeted towards inclusive education (R7.1 – 7.13), noting that the Royal Commission was split on whether to eventually phase out segregated schooling. Commissioners Bennet, Galbally and McEwin recommended that through the National School Reform Agreement, segregated schooling should be wound down by the end of 2051 (R7.14). The Chair of the Royal Commission and Commissioners Mason and Ryan proposed additional measures to ensure that, as far as possible, 'non-mainstream' schools have a range of opportunities to engage more closely with 'mainstream' schools (R7.15).
• A range of measures intended to increase the housing alternatives available to people with disability and respond to homelessness (R7.33 – R7.40) including targeted action from the NDIS QSC to reform Group Homes (R7.41), targeted action from the NDIA to expand alternative housing for people with disability and support them to transition to alternative housing (R7.42), and a roadmap to phase out Group Homes, either over a 15 year period (as proposed by Commissioners Bennett, Galbally, Mason and McEwin) (R7.43) or through a phased approach over a generational timeframe (as proposed by Commissioner Ryan) (R7.44)
• Amendment to the NDIS Rules to reflect that it is not appropriate for a provider of support coordination to be the provider of any other funded support in an NDIS participant's plan (subject to some exceptions) to address potential conflicts of interest (R10.2).
• Amendment to the NDIS Practice Standards Guidelines to reflect the right of each participant to exercise supported decision-making in relation to the services that they receive (R10.6) and the development of practical and co-designed guidance for disability providers regarding supported decision-making for participants (R10.7).
• A range of measures to respond to workforce issues in the disability sector, including the implementation of a national disability support worker registration scheme (R108) and through a 'work value' decision in relation to workers covered by the Social, Community, Home Care and Disability Services Industry Award 2010 (R10.9).
• A range of measures targeted at improving the oversight, monitoring and enforcement capabilities of the NDIS QSC (R10.11 – R10.30).

You can read the Royal Commission's Final Report and the transcript of Minister Rishworth and Minister Shorten's press conference in response.

We will keep you updated as the Government considers its response to the Final Report. We will also provide a comprehensive update on the NDIS Review, once the final report is published in October 2023.

If you would like to discuss this update, the Royal Commission's Final Report more broadly, or how your organisation should be responding to the Final Report and the response of government to it, please do not hesitate to contact us.