On 31 July 2024, the Federal Government published its response (Response) to the Final Report (Final Report) of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Royal Commission).
The Final Report was submitted to the Government on 28 September 2023, marking the conclusion of four and half years of significant work by the Royal Commission and outlining its vision for an ‘inclusive Australia.’ The Final Report tabled 222 proposals for sector reform, proposing wide-ranging structural and legislative changes, which we outlined in our previous update. While the majority of these recommendations were directed to the Commonwealth, the Final Report called for a coordinated approach, advocating for reformatory action by the National Disability Insurance Scheme Quality and Safeguards Commission (NDIS QSC), National Disability Insurance Agency (NDIA) and the State and Territory Governments.
Though the Response acknowledges the need to ‘implement meaningful change’ and represents a landmark step towards comprehensive reform of the disability sector, the Federal Government provides a ‘patchwork’ endorsement of the findings of the Royal Commission. Of the 172 recommendations within the Commonwealth’s remit, the Federal Government:
- Accepted 13 recommendations – meaning that the recommendation will be supported in full by the Federal Government;
- Accepted in-principle 117 recommendations – meaning that the underlying intention of the recommendation will be implemented through an alternative means than what was proposed;
- Noted 6 recommendations – meaning that the Government considers it would not be appropriate to accept or reject the recommendation; and
- Continues to consider 36 recommendations – meaning that the Government has indicated a need for additional engagement with stakeholders or investigation prior to providing an informed response.
As anticipated, the Australian and State and Territory Governments have adopted a collaborative approach to the overhaul of the disability sector, issuing a Joint Response (Joint Response) following the publication of the Response. The Joint Response largely reflects the position of the Response, echoing the coordinated efforts that will action each of the accepted proposals, with only minor divergences between Governments to allow for further consideration in the context of respective jurisdictional legislative and funding challenges.
As the individual responses of each State and Territory Government continue to be rolled out, we can expect further clarity around the consistency of implementation timeline for the remaining 50 recommendations, notably including a new supported decision-making framework, standardised strengthened restrictive practice protections and occupancy protections for people with disability.
Below, we highlight what we consider are the key takeaways from the Government’s response for disability providers.
1. ‘Realising the human rights of people with disability’
Despite the proposed Disability Rights Act being a centrepiece of the Royal Commission’s recommendations, agreed to by all six of the Commissioners, the Federal Government has not yet committed to the establishment of a Disability Rights Act (R4.1-4.21) as it continues to consider the proposals alongside the recent inquiry report of the Parliamentary Joint Committee on Human Rights. Though not wholly accepting the recommendations for the Disability Discrimination Act 1992 (Cth) (R4.23-4.34), the Response signals that we are likely to see a consultative process for the first substantial amendments to the discrimination legislation since 2009, following a consultative review speared by the Attorney-General’s Department.
2. ‘Governing for inclusion’
The Final Report proposed an independent oversight body, titled the National Disability Commission, which would be tasked with promoting and protecting the human rights of people with disability, through broad capacity-building functions, powers to enforce compliance and an accompanying complaints mechanism (R5.5). The Response has tabled the recommendation for further consideration, suggesting a softer and incorporated approach may be taken to the role, stating its commitment to ensuring a ‘holistic approach is taken to ensuring the rights and freedoms of all Australians.’
Similarly, the targeted actions recommended by the Royal Commission to establish new governance arrangements for disability policy have not been adopted into the reform agenda, including a specific government department and dedicated ministerial portfolio to ensure the separation of disability policy and social services (R5.6). While the State and Territory Governments have committed to designating ‘focal points’ for the implementation of the Convention on the Rights of Persons with Disabilities (R5.7), the Federal Government ‘notes’ the recommendations but reiterates the capability of the Department of Social Services to drive the national change advocated by the NDIS Review and Royal Commission, with its joint actions with the Attorney-General continuing in the place of the proposed Department of Disability Equality and Inclusion.
3. ‘Enabling autonomy and access’
The Response stated its support of nationally coordinated efforts to improve the autonomy of people with disability through the form of information and communication initiatives, appropriately skilled and qualified interpreters and the use of ‘disability health navigators’ to support inclusive practice in everyday health service provision (R6.1-6.3,6.34). While the Response made clear that the Federal and State and Territory Governments recognise substituted decision-making should only be used as a last resort, the strengthened shared decision-making mechanisms contemplated in the Final Report have not been given further shape by the Response. Given the collaboration necessary between states and territories to consider implementing the Royal Commission’s supported decision-making principles, the legal and practical reforms required to shift away from substitute decision-making towards supported decision-making will likely be modelled across an extended period of time (R6.4-6.10).
4. ‘Inclusive education, employment and housing’
Inclusivity in the workforce has been given force under a commitment to strengthen workplace protections available under the Fair Work Act 2009 (Cth) and an expanded functionality of the Fair Work Ombudsman (R7.25, 7.27), with amendments expected to be tabled following a review and modernisation of the Disability Discrimination Act 1992 (Cth). The Response also highlighted the commencement of a new specialist disability employment program on 1 July 2025, which will replace the current Disability Employment Services regime and aim to provide more tailored support to assist people with disability in their employment endeavours (R7.16). This initiative will be further reinforced by the Australian Government’s commitment to establish a ‘Disability Employment Centre of Excellence’, engaging with employment service providers to improve disability employment outcomes through education and resourcing (R7.17).
Although only accepted in principle at this stage, we can expect to see the implementation of a range of recommendations intended to increase the housing alternatives available to people with disability and respond to homelessness (R7.33 – R7.40), with the Response noting that ‘all governments have committed to an ambitious housing reform agenda’. Relevantly, the Federal Government indicates an intention for targeted compliance activities centred around Specialist Disability Accommodation (SDA) providers, and the considered design of mechanisms supporting the legal separation of SDA and Supported Independent Living.
In its Final Report, the Royal Commission advocated for 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 (R7.14-15). The Response has merely ‘noted’ proposed phase out, restating the responsibility of State and Territory Governments to oversee the registration of schools and acknowledging an ‘ongoing role of specialist settings’ for students with disability and the promotion of choice.
5. ‘Disability services’
The Royal Commission made recommendations for a national disability support worker registration scheme to be established by 1 July 2028, which would clearly define ‘disability support worker’ and impose a regime of minimum standards which would drive the education, professional development and proper conduct of people employed in the disability sector (R10.8). Though the Response has not agreed with the recommendation in full, we can expect that the framework will be heavily informed by the recommendations of the NDIS Provider and Worker Registration Taskforce, expected to be provided in mid-2024.
The Response also highlights a sharpened focus on the quality of service provision, committing to a review of National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth) to support strengthened complaint handling and incident management (R10.22). Further provider oversight can also be expected under a potential move towards a nationally consistent worker screening and monitoring regime (R10.31-10.33), a complaint handling and investigative practice guideline co-designed by the States and Territories (R10.15), and potential ‘model procedures for NDIS providers’ focused on guiding complaint resolution and incident management currently contemplated by the NDIS QSC (R10.14). In an effort to encourage a human-centric approach to disability care, the Response also commits to a capacity-building program to support disability service providers to embed human rights in the design and delivery of their service (R10.1). Although legislative amendments to expressly state the inappropriateness for a provider of support coordination to be the provider of any other funded support in an NDIS participant's plan have not been agreed to in the initial Response, the Federal Government noted that the appropriate approach to address potential conflicts of interests in support coordination continues to be considered (R10.2).
6. ‘Independent oversight and complaint mechanisms’
Volume 11 of the Final Report detailed the barriers and inadequacies of the sector’s current mechanisms of oversight, making recommendations to cultivate improved monitoring and accessible and responsive complaint handling. In its Response, the Federal Government acknowledged the need to consider creating nationally consistent and integrated safeguarding functions to foster a standardised culture across the ‘disability ecosystem’ (R11.1-11.2). However, although the Federal, State and Territory Governments have committed to joint action to consider appropriate approaches and timeframes to implementing these recommendations, the Response indicates only an acceptance in principle. At this stage, the road ahead remains unclear for the creation of accessible complaint pathways (R11.4), a formally-recognised and strengthened Community Visitor Scheme (R11.12-11.13) and dual oversight of reportable conduct and incidents (R11.18).
As a result of the ongoing regulatory reform, providers in the disability sector have become accustomed to operating in a dynamic and increasingly complex environment. The Response is a welcome acknowledgement of the systemic challenges for people with disability, but also signals the potential for an increase in the already significant regulatory burden on disability providers. Despite much ambiguity in the reform timeline, the Response and Joint Response commit to a staged approach to implement the changes, prioritising inclusion and access as key outcomes, and we are likely to see amendments to the multi-regulatory legislative landscape roll-out over the coming years. It will be necessary for providers to remain alert to these reforms as they are announced and as legislation passes through Parliament, to ensure they are equipped and prepared to maintain regulatory compliance.
We will continue to keep you updated as this complex and far-reaching reform journey progresses.
Please reach out at any time if you would like to discuss this update, or if we can assist your organisation in responding to these reforms.
