The Draft Terms of Reference (DTOR) for the Commonwealth Government’s announced Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) have been released for public consultation. While we welcome this important step towards establishing the Disability Royal Commission and the inquiry being into “[a]ll forms of violence, abuse, neglect and exploitation of people with disability” and in “all settings”, we also have some concerns, including in relation to the process for giving the government feedback about the DTOR and what appears to be a “forward looking” focus in the DTOR that may be more limited than the focus of the Royal Commission into Institutional Responses to Child Sexual Abuse, which expressly included justice and redress in relation to current and historical abuse.
Consultation by Survey? Not good enough.
At this stage it is not clear whether the 2 week period for consultation will include the capacity for submissions to be made to the Commonwealth Government on the DTOR or whether the consultation process is to be limited to the on-line survey – which is the only currently specified avenue for ‘consultation’. In that regard, the survey, in asking participants to rank priorities and the importance of various matters that are relevant to the DTOR and should be included within its scope, suggests that its results could be used to narrow the ultimate Terms of Reference and accordingly the focus the Disability Royal Commission. Further, the premise that seems to be applied, that the relative significance of violence, abuse, neglect and exploitation should be ranked, is also unsatisfactory and objectionable in itself.
Apart from this, the general accessibility of the survey, including the format of some of the questions as likely to be confusing for people with intellectual and cognitive disabilities, has also been raised as as concern.
Broadly, the “consultation” for the Terms of Reference for the Disability Royal Commission should not be restricted to the on-line survey platform and must be opened to broader submissions. A ‘contained’ and ‘structured’ survey-based ‘consultation’ process was not applied to settling the Terms of Reference of the other recent Commonwealth Royal Commissions into Institutional Responses to Child Sexual Abuse, Misconduct in the Financial Sector and Aged Care.
Further, the submissions on the DTOR should be public, unless the submitting party requires their submission to be received on a confidential basis. There is no transparency in the on-line survey, its results and how the results may be used.
Scope of the DTOR for the Disability Royal Commission – Lack of “justice” focus
It has generally been reported that the DTOR have been well received from the perspective of their comprehensiveness, including their apparent coverage of “[a]ll forms of violence, abuse, neglect and exploitation of people with disability” in “all settings”.
However, there are some clear differences between the DTOR for the Disability Royal Commission and the final terms of reference for the most analogous recent inquiry, the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse (TOR CSA).
It is also worth noting that the comprehensive Draft Terms of Reference that Federal Greens Senator Steele-John sent to Prime Minister Scott Morrison last month more closely reflected the approach in the TOR CSA, as outlined below.
The introductory preamble (DTOR v TOR CSA)
The tone of the preamble to the DTOR is significantly more passive than the TOR CSA.
The TOR CSA provides:
“AND all forms of child sexual abuse are a gross violation of a child’s right to this protection and a crime under Australian law and may be accompanied by other unlawful or improper treatment of children, including physical assault, exploitation, deprivation and neglect.
AND child sexual abuse and other related unlawful or improper treatment of children have a long-term cost to individuals, the economy and society.
AND it is important that claims of systemic failures by institutions in relation to allegations and incidents of child sexual abuse and any related unlawful or improper treatment of children be fully explored, and that best practice is identified so that it may be followed in the future both to protect against the occurrence of child sexual abuse and to respond appropriately when any allegations and incidents of child sexual abuse occur, including holding perpetrators to account and providing justice to victims.
AND it is important that those sexually abused as a child in an Australian institution can share their experiences to assist with healing and to inform the development of strategies and reforms that your inquiry will seek to identify.”
By comparison, the DTOR provides:
“AND all forms of violence, abuse, neglect and exploitation against people with disability are abhorrent.
[Compare the above language with the TOR CSA which speaks of “gross violations” of rights and “unlawful” conduct. Further, there is no mention of long-term costs of abuse of people with disability in the DTOR, whereas the TOR CSA speaks of the long-term costs of child abuse to individuals, the economy and society.]
“AND it is important that violence, abuse, neglect and exploitation of people with disability in all settings and contexts are exposed and examined.”
[Compare this with the TOR CSA which also speaks of the need for “systemic failures” to be “fully explored”.]
“AND it is important that best practice is identified to inform future decision making on what all Australian governments and others can do to prevent and respond to violence, abuse, neglect and exploitation of people with disability.”
[Compare this with the TOR CSA which speaks of best practice being identified so that it “may be followed” (not just inform decision-making) and used to respond to allegations, including holding perpetrators to account and providing justice to victims.]
The scope of the subject matter of the Inquiry – DTOR narrower ‘forward’ focus than TOR CSA
The TOR CSA provides that the Commissioners are required and authorised to:
“inquire into institutional responses to allegations of child sexual abuse and related matters, and in particular, without limiting the scope of your inquiry, the following matters:
a. what institutions and governments should do to better protect children against child sexual abuse and related matters in institutional contexts in the future;
b. what institutions and governments should do to achieve best practice in encouraging the reporting of, and responding to reports or information about, allegations, incidents or risks of child sexual abuse and related matters in institutional contexts;
c. what should be done to eliminate or reduce impediments that currently exist for responding appropriately to child sexual abuse and related matters in institutional contexts, including addressing failures in, and impediments to, reporting, investigating and responding to allegations and incidents of abuse;
d. what institutions should do to address, or alleviate the impact of, past and future child sexual abuse and related matters in institutional contexts, including, in particular, in ensuring justice for victims through the provision of redress by institutions, processes for referral for investigation and prosecution and support services.”
By contrast, the DTOR for the Disability Royal Commission does not specify the general subject matter of violence, abuse, neglect and exploitation of people with disability in all settings as the core subject matter of the inquiry – rather it identifies three specific matters relating to the future practices of governments, institutions and the community. In this sense, the DTOR seems to be narrower in that it is, in essence, “forward looking”, and lacks the same critical focus on justice and redress in relation to historical and current incidents. However, the Disability Royal Commission should be as much about justice as it is about reform; not one without the other.
The DTOR on the other hand provides that the Commissioners are required and authorised to:
“inquire [only] into the following matters:
a. what governments, institutions and the community should do to prevent, and better, protect people with disability from experiencing violence, abuse, neglect and exploitation, having regard to the extent of violence, abuse, neglect and exploitation experienced by people with disability in all settings and contexts;
b. what governments, institutions and the community should do to achieve best practice to encourage reporting and effective responses to violence, abuse, neglect and exploitation of people with disability, including addressing failures in, and impediments to, reporting, investigating and responding to such conduct;
c. what should be done to promote a more inclusive society which supports the independence of people with disability and their right to live free from violence, abuse, neglect and exploitation;
d. any matter reasonably incidental to a matter referred to in paragraphs (a) to (c) or that you believe is reasonably relevant to the inquiry.”
It is far from clear that in paragraph a., by being asked to “have regard to the extent of violence, abuse, neglect and exploitation experienced by people with disability”, the Commissioners are generally required and authorised to properly investigate individual incidents and the extent of such incidents. Rather, the “having regard to” formula may simply be intended to allow a general or superficial assessment of “the extent of” the violence and abuse to be a consideration merely to inform what governments, institutions and the community should do in the future to prevent and protect from violence and abuse of people with disability.
Further, it appears that paragraph d. above is not a substantive additional matter – but only authorises matters “incidentally relevant” to paragraphs a. to c. to be considered.
Other discrepancies (DTOR v TOR CSA)
Both the TOR CSA and the DTOR for the Disability Royal Commission identify a number of procedural matters to be considered by the Commissioners. However, the TOR CSA is more overtly investigative than the DTOR in additionally providing that the Commissioners are to consider:
“j. the need to establish investigation units to support your inquiry;
m. the need to ensure that institutions and other parties are given a sufficient opportunity to respond to requests and requirements for information, documents and things, including, for example, having regard to any need to obtain archived material.”
What else is evident (DTOR v TOR CSA)
Qualified State and Territory participation
The DTOR for the Disability Royal Commission suggest limited and qualified support from the States and Territories. At this stage that support is described in the DTOR as “in-principle”which really means “it depends upon the detail”. Unlike the TOR CSA, there is no suggestion that the States and Territories will issue separate instruments to appoint the Commissioners under State and Territory laws to conduct the inquiry into violence, abuse, neglect and exploitation of people with disability.
This suggests that there may be constitutional limitations as to the extent to which the Commonwealth Disability Royal Commission will be able to inquire into State and Territory settings and accordingly will be dependent upon State and Territory “co-operation”. It also undermines the potential for “justice” and “redress” aspects in relation to the matters relating to State and Territory settings.
Definition of “disability”
The definition of ‘disability’ in the DTOR is narrower and more prescriptive than the concept of ‘disability’ under the UN Convention of the Rights of Persons with Disabilities (CRPD). Given that the preamble in the DTOR refers to the CRPD in reference to the human rights of people with disabilities, the same broad ‘social model of disability’ based definition should be utilised for the Disability Royal Commission.
It is hoped that these deficits with the DTOR will be addressed and, in addition, that there is a clear commitment from the Australian Government to fund the Disability Royal Commission to the full extent required (to ensure its wide scope and effectiveness) and to appoint at least a majority of Commissioners with lived experience of disability and expertise in relation to the range issues that will be faced by the inquiry.
[Cover photo © Samuel Zeller]