Observations - Legal consultation workshops

Purpose of the workshops

As part of its consultation and enquiry process, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Commission) conducted three workshops in Sydney, Brisbane and Melbourne with selected members of the legal and disability advocacy communities from all States and Territories. The purpose of these workshops was to bring together those lawyers practising in disability matters and disability advocates with extensive knowledge of disability discrimination to seek their views on the biggest challenges for people with disability. Participants were also asked to share strategies and case studies that have been successfully used to prevent violence towards, and the abuse, neglect and exploitation of, people with disability. The four key areas of focus addressed by the workshop were: homes and living, education and learning, economic participation and justice.

Key issues raised

Homes and living

Workshop participants discussed a range of living environments, and raised particular concerns with closed, institutional settings that promote and legitimise total control over all aspects of a person's life, such as group homes. The lack of access, oversight and regulation of these environments was a key concern for participants, who identified numerous examples where people with disability had been abused, neglected and subjected to violence in these types of living arrangements.

Participants also raised concerns about the difficulties for people with disability in securing safe, appropriately adapted housing, and the flow-on effects this can have. Participants noted numerous examples where the lack of safe or appropriately adapted housing has prompted the removal of a person's children, in instances where requests for reasonable adjustments to a person's public housing were not provided. Part of the difficulty in securing appropriate housing was attributed to the presence of multiple agencies, as well as the National Disability Insurance Scheme (NDIS) in the housing space. People with disability have often found their requests for adjustments to their living environment directed to the NDIS as a 'disability issue', rather than a public housing one. Being caught in the gap between various government agencies was a common theme throughout other areas of discussion.

Education and learning

Participants identified education as a critical right for people with disability, noting there can be significant flow-on effects in terms of a person's economic participation if they are denied access to appropriate education. The fact that primary and secondary education occur at key developmental stages in a person's life make this a time-critical right. Formal education is also instrumental in allowing people with disability to develop communication skills, which provide the foundation for their interaction with the world, and impact all aspects of their life.

Participants acknowledged the range of barriers experienced by people with disability in seeking a wholly inclusive education in mainstream schools. These barriers range from difficulties for parents communicating with schools when complaints arise, children being prevented from accessing relevant support in the classroom, and schools attempting to punish or manage 'challenging behaviours' with restrictive practices, instead of assessing and providing the necessary supports to assist students with disability. Participants noted that in many cases, students with disability can be suspended and then expelled as a result of the school's focus on work health and safety, as opposed to consideration of the needs of the child, with parents then forced to pursue enrolment in schools for specific purposes (SSPs), or home-schooling – the rate of which is on the rise.

Economic participation

Participants identified multiple barriers to ensuring full economic participation for people with disability, particularly in the employment sector. These barriers first become apparent in the recruitment process, with a growing number of employers requiring pre‑employment screening that is inherently exclusive for many people with disability. Examples of this included medical checks and cognitive testing, which forces a decision on whether or not to disclose a disability. Participants reported multiple instances where people that had disclosed their disability were unsuccessful in securing employment or had their employment terminated when their employer found they had not disclosed their disability—even in circumstances where this did not affect their ability to carry out their work.

In the workplace context, participants emphasised the difficulties for people with disability in seeking reasonable adjustments. Participants reported a tendency for employers to view this as "too difficult". The lack of effort by some employers to try and make these reasonable adjustments was partially attributed to a fear that they would do the 'wrong thing', or end up in breach of the Disability Discrimination Act 1992.

Participants also raised concerns with the operation of Australian Disability Enterprises (ADEs), specifically, their continued underpayment of people with disability, and instances where ADEs used these underpayments to exploit tender processes, and 'cash in' on the provision of grants and funding through the NDIS. 

Justice

The experiences of people with disability within the justice system were identified as having significant and far-reaching impacts throughout the other areas of their lives. A lack of police training and understanding of people's lived experience of disability were seen as key factors leading to the disproportionate rates of arrest, charge and sentencing. In some communities, particularly remote and First Nation communities, a lack of appropriate assessments and support services also resulted in the criminal justice system being used as a default care provider for people with disability. Barriers in accessing NDIS funding were noted as a key contributor to the difficulties in advocating for diversionary orders for those with cognitive impairment, such as those under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW).

In the custodial setting, participants noted the widespread lack of, or delay in, providing assessments to ascertain what kind of support people with disability required had serious implications. In some cases, this led to an inability to seek NDIS funding and support or to delays in receiving medication the person had previously been prescribed for a significant period of time. This also impeded the identification and provision of relevant support to transition from the custodial environment to living at home, particularly for young people. 

Overarching themes

Over the course of the three workshops, it was clear that where people with disability experienced some form of violence, abuse, neglect, or exploitation in one area of their life, this was likely to have significant flow-on effects in others. Difficulties in obtaining appropriate support, whether in terms of housing, education, or employment, are likely to be exacerbated by the tendency of some agencies to label this as a 'disability issue' for the NDIS, with the latter identifying it as a mainstream service issue. Participants urged the Commission to consider how it could reach into closed, privately run, and hard to reach living environments to ensure that all people with disabilities, particularly those who are non-verbal communicators, can engage with the Commission.

Overview of discussions – Legal consultation workshops – July 2019