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AUSTRALIAN CROSS DISABILITY ALLIANCE














Submission
Senate Community Affairs References Committee

Inquiry into Violence, Abuse and Neglect against People with Disability in Institutional and Residential Settings



August 2015
PUBLISHING INFORMATION
‘Australian Cross Disability Alliance (ACDA) Submission to the Senate Inquiry into Violence, abuse and neglect against people with disability in institutional and residential settings’
Suggested Citation:
Frohmader, C., & Sands, T. (2015) Australian Cross Disability Alliance (ACDA) Submission to the Senate Inquiry into Violence, abuse and neglect against people with disability in institutional and residential settings’. Australian Cross Disability Alliance (ACDA); Sydney, Australia.

© Australian Cross Disability Alliance (ACDA) August 2015

© This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced without written permission from the Australian Cross Disability Alliance (ACDA). All possible care has been taken in the preparation of the information contained in this document. The ACDA disclaims any liability for the accuracy and sufficiency of the information and under no circumstances shall be liable in negligence or otherwise in or arising out of the preparation or supply of any of the information aforesaid.

ACKNOWLEDGMENT
The Australian Cross Disability Alliance (ACDA) thanks, and acknowledges the work of Dr Jess Cadwallader in assisting with background research and drafting for this Submission.


CONTACTS FOR THIS SUBMISSION
Carolyn Frohmader

Executive Director

Women with Disabilities Australia (WWDA)

E: carolyn@wwda.org.au

Ph: 0438 535 123

Therese Sands

Co-Chief Executive Officer

People with Disability Australia (PWDA)

E: thereses@pwd.org.au

Ph: (02) 9370 3100

Dr Jess Cadwallader

Advocacy Project Manager, Violence Prevention

People with Disability Australia (PWDA)

E: jessc@pwd.org.au

Ph: (02) 9370 3100

CONTENTS
The Australian Cross Disability Alliance (ACDA) 4
Background to the Senate Inquiry 5
Summary and Overview of this Submission 6
Key Recommendations 12
Section One: Disability and Intersectionality in a Human Rights Framework 16
Section Two: Violence Against People With Disability in a Human Rights Framework 19
Section Three: Australia’s International Human Rights Obligations 22

Convention on the Rights of Persons with Disabilities (CRPD) 23

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (CAT) 27

Convention on the Elimination of all forms of Discrimination against Women (CEDAW) 29

Convention on the Rights of the Child (CRC) 30

Convention on the Elimination of all forms of Racial Discrimination (CERD) 32

Redress and Transitional Justice 33

Section Four: Scope and prevalence of violence against people with disability 35
General Data 36

Gendered Disability Violence 37

Data on violence against Aboriginal & Torres Strait Islander people with disability 38

Data on violence against people with disability from NESB & CALD backgrounds 39

Data on violence against children and young people with disability 40

Additional research evidence on violence against people with disability 42


Section Five: Human Rights violations integral to violence against people with disability 44
Equal recognition before the law 44

Restrictive practices 45

Medical or scientific experimentation without informed consent 47

Indefinite detention 47

Over-representation in criminal and juvenile justice system 49

Immigration detention 51

Forced living arrangements 52

Involuntary treatment 53

Forced sterilisation 54

Access to Justice 55

Section Six: Failures in the Australian legislative, policy and service landscape 58

Issues in Legislation 58

Issues in Policy Frameworks 62

Issues in Complaints Mechanisms 64

Issues in Data Collection 69


Appendices 71
Senate Inquiry Terms of Reference 71
Accompanying Document: Personal stories and testimonies from people with disability
THE AUSTRALIAN CROSS DISABILITY ALLIANCE
1. The Australian Cross Disability Alliance (ACDA) is a newly established alliance of national disabled people’s organisations (DPOs) in Australia. The key purpose of the ACDA is to promote, protect and advance the human rights and freedoms of people with disability in Australia by working collaboratively on areas of shared interests, purposes and strategic priorities and opportunities. The ACDA was founded by, and is made up of four national cross-disability DPOs: First Peoples Disability Network Australia (FPDNA); Women With Disabilities Australia (WWDA); National Ethnic Disability Alliance (NEDA); and People with Disability Australia (PWDA). The ACDA has been funded by the Australian Government to be the recognised coordinating point between Government/s and other stakeholders, for consultation and engagement with people with disability in Australia. In forming the ACDA, its four founding member organisations recognise and value the strength of working together in a spirit of mutual respect and trust, to proactively pursue human rights outcomes for all people with disability in Australia.

Women With Disabilities Australia (WWDA) is the national cross-disability DPO for women and girls with all types of disabilities in Australia. It operates as a transnational human rights organisation and is run by women with disabilities, for women with disabilities. WWDA’s work is grounded in a human rights based framework which links gender and disability issues to a full range of civil, political, economic, social and cultural rights.

First Peoples Disability Network Australia (FPDNA) is the national cross-disability DPO representing Aboriginal and Torres Strait Islander people with disability and their families. FPDNA utilises a range of strategies in its representative role, including through the provision of high-level advice to governments, and educating the government and non-government sectors about how to meet the unmet needs of Aboriginal and Torres Strait Islander people with disability.
People with Disability Australia (PWDA) is the national cross-disability rights and advocacy organisation run by and for people with disability. Working within a human rights framework, PWDA represents the interests of people with all kinds of disability. Its primary membership is made up of people with disability and organisations primarily constituted by people with disability. It also has a large associate membership of other individuals and organisations committed to the disability rights movement.
National Ethnic Disability Alliance (NEDA) is the national peak organisation representing the rights and interests of people from Culturally and Linguistically Diverse (CALD/NESB) people with disability, their families and carers throughout Australia. NEDA advocates at the federal level so that CALD/NESB people with disability can participate fully in all aspects of social, economic, political and cultural life.
The key objectives of the ACDA are to:


  • work to advance the rights of all people with disability from all walks of Australian life, in relevant policy frameworks, strategies, partnership agreements and any other relevant initiatives;

  • promote and engender a collaborative, co-operative and respectful relationship with all levels of Government in the efforts of the ACDA to advance the human rights of people with disability;
  • build on and further develop networks, strategic alliances and partnerships at state/territory, national and international levels to advance human rights of people with disability;


  • promote the ACDA at national and international levels as the coordinating point for engagement with the Australian DPO sector; and.

  • build respect for, appreciation of, and faith in the DPO sector in Australia.



BACKGROUND TO THE SENATE INQUIRY
2. On Monday 24th November 2014, ABC TV broadcast an episode of ‘Four Corners’ - its flagship investigative journalism/current affairs television program. The episode was called ‘In Our Care’1 and it “lifted the lid on a major scandal involving one of the country's biggest disability providers.” It ‘lifted the lid’ on the most depraved and horrific violations perpetrated against people with disability in a government funded institution in Victoria. It ‘lifted the lid’ on multiple and repeated episodes of torture – including rape, sexual assaults, and other egregious forms of violence and abuse perpetrated against people with disability who were completely powerless to prevent or stop it from happening. ‘In Our Care’ ‘lifted the lid’ on the way the ‘victims’ complaints were ignored, on the ways they were reprimanded and punished by staff for supposedly making up false allegations. It ‘lifted the lid’ on how whistle-blowers were targeted and persecuted, their warnings not acted upon. It ‘lifted the lid’ on the deliberate and systematic attempts by “one of the country's biggest disability providers” to cover up the ‘scandal’ and silence the victims.

3. ‘In Our Care’ saw a number of the victims speak publicly for the first time about the torture they endured and its devastating and life-long effects. These ‘victims’ gave a human face to the epidemic of torture and ill-treatment experienced by people with disability in institutional and residential settings in Australia.

4. ‘In Our Care’, and the response to it, confirmed what people with disability and their allies had been consistently raising with Governments for years – that violence, abuse, exploitation and neglect of people with disability in Australia is pervasive and is facilitated by systemic failures in legislation, policies and service systems which are underscored by an ableist culture that enables violence against people with disability to continue unabated.
5. Within days of ‘In Our Care’ being aired, more than 11,500 people from around Australia had signed a petition - started by people with disability themselves - calling on the Prime Minister of Australia to launch a national inquiry into violence and abuse of people with disability in residential and institutional settings.2 A coalition of national organisations of and for people with disability in Australia (several of which had been campaigning for a national inquiry for years), wrote formally to the Prime Minister urging strong leadership and action to urgently establish an independent national Inquiry. The letter was endorsed by more than 105 national and state/territory based organisations across many sectors.3 The Australian Government, however, took the view that there is no need for a national inquiry into the violence and abuse of people with disability in residential and institutional settings, as it is up to the States and Territories to deal with this issue.
6. However, on 4th December 2014, acknowledging the urgency of the issue, Australian Greens Senator Rachel Siewert placed a notice of motion to the Senate “to move on 11 February 2015 that the following matter be referred to the Community Affairs References Committee for inquiry and report by 24 June 2015:

'Violence, abuse and neglect against people with disability in institutional and residential settings, including the gender and age-related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse people with disability'.

7. On the 11th February 2015, people with disability and their advocates, including one of the victims who spoke out in the ‘In Our Care’ program, gathered on the steps of Parliament House in Canberra for a press conference to urge the Senators to vote in favour of the motion. Several hours later the motion was unanimously passed. The Terms of Reference for the Senate Inquiry are included as an Appendix to this Submission.
SUMMARY AND OVERVIEW OF THIS SUBMISSION
8. People with disability in Australia represent the most detained, restrained and violated sector of our population – significantly over-represented in prisons, institutionalised and segregated within communities, locked up in schools, confined in mental health facilities, incarcerated in detention centres, and trapped within their own homes. Wide-ranging systemic failures in legislation, policies and service systems in Australia facilitate conditions that give rise to torture and ill treatment of people with disability. These failures are embedded within and underscored by an ableist culture which sees the promotion and support of laws, systems, policies and practices which not only deny people with disability their most basic human rights but which provide a legitimised gateway through which torture and ill-treatment against people with disability can flourish.

9. For more than two decades, Disabled Peoples Organisations (DPOs), civil society organisations (CSOs); the United Nations, people with disability themselves, their families, allies, friends and advocates, have appealed to successive Australian Governments to show national leadership and act urgently to address all forms of violence perpetrated against people with disability in institutional and residential settings in Australia. Despite over-whelming and mounting evidence of the epidemic that is violence against people with disability, our governments have consistently failed to act. In their apathy, indifference and inaction, they have subsequently been complicit in, and provided de facto permission for, the commission of acts impermissible under the international human rights treaties to which Australia is a party.

10. Violence against people with disability in institutional and residential settings is Australia’s hidden shame. More often than not, violence perpetrated against people with disability in institutional and residential settings, constitutes torture and ill treatment as defined and recognised in international human rights law, including the treaties to which Australia is a party. Violence against people with disability in institutional and residential settings is an urgent, unaddressed national crisis, of epidemic proportions,4 yet is excluded from national policy responses relating to violence prevention, and from national policy responses relating to advancing the human rights of people with disability. This epidemic affects some of the most vulnerable, marginalised people in our communities, with specific implications for women and children with disability, Aboriginal and Torres Strait Islander peoples with disability and people with disability from non-English speaking and culturally and linguistically diverse backgrounds.
11. The evidence of this national epidemic is extensive and compelling. It is a deeply shameful blight on our society and can no longer remain ignored and unaddressed.5 It can no longer be dismissed by our national leaders as an issue for State and Territory governments to deal with.

12. This Submission from the ACDA is the culmination of more than two decades of people with disability and their allies campaigning and advocating for a national, independent inquiry to investigate violence and abuse against people with disability in institutional and residential settings. Although this Submission endeavours to be rigorous and comprehensive, the ACDA acknowledges at the outset, the immensity of the task at hand. It is almost impossible, in a written Submission, to do justice to the magnitude of the issue of violence against people with disability in institutional and residential settings in Australia. It is also impossible in a written Submission, to articulate the life-long pain and suffering endured by people with disability who have experienced and who continue to experience violence, abuse, exploitation and neglect in these settings.

13. This Submission includes as a accompanying document, a large number of personal stories and testimonies from people with disability, all of which have been de-identified for confidentiality purposes. These stories and testimonies are critical in illustrating the stark reality of violence in the lives of people with disability in institutional and residential settings, and in demonstrating that this violence cannot be dismissed as belonging to one institution, or one ‘type’ of institutional setting, or the fault of one ‘bad apple’. These stories and testimonies provide the human reality of the information provided in the body of this Submission. The ACDA trusts that readers will take the time to read each and every one of these personal stories and testimonies from people with disability, as this Submission has also endeavoured to provide a vehicle for people with disability to have their stories and experiences heard, documented and validated.
14. Whilst the ACDA welcomes this Senate Inquiry, we also recognise the inherent barriers for people with disability in being able to provide direct evidence to the Senate Committee conducting this Inquiry. Many people with disability in institutional and residential settings do not have the necessary supports, the relevant information or the extensive process that is required to facilitate and support them in coming forward to provide evidence directly to the Senate Committee. It must also be acknowledged that in many cases, it may not be in the best interest of institutions to be actively encouraging and supporting people with disability to share their experiences of violations of their human rights in the institutions and settings in which they reside, are incarcerated or in which they receive services.

15. This Submission uses certain terminology that we wish to explain at the outset. Firstly, for the purposes of this Submission, the ACDA adopts the broad definitions outlined in the Inquiry Terms of Reference when referring to ‘institutional and residential settings’ and ‘violence, abuse and neglect’. These are:

institutional and residential settings’ - is broadly defined to include the types of institutions that people with disability often experience, including, but not restricted to: residential institutions; boarding houses; group homes; workplaces; respite care services; day centres; recreation programs; mental health facilities; hostels; supported accommodation; prisons; schools; out-of-home care; special schools; boarding schools; school buses; hospitals; juvenile justice facilities; disability services; and aged care facilities.
violence, abuse and neglect’ - is broadly understood to include, but is not limited to: domestic, family and interpersonal violence; physical and sexual violence and abuse; psychological or emotional harm and abuse; constraints and restrictive practices; forced treatments and interventions; humiliation and harassment; financial abuse; violations of privacy; systemic abuse; physical and emotional neglect; passive neglect; and wilful deprivation.
16. This Submission also refers to, and uses the terms ‘torture and ill treatment’. These terms are used in this Submission consistent with the internationally recognised definitions and understandings of ‘torture, cruel, inhuman or degrading treatment or punishment’ as articulated in international human rights law, including the international human rights treaties to which Australia is a party.6

17. At least four essential elements are reflected in the definition of torture provided in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT):7 1) an act inflicting severe pain or suffering, whether physical or mental; 2) the element of intent; 3) the specific purpose; and 4) the involvement of a State official, at least by acquiescence. Acts falling short of this definition may constitute cruel, inhuman or degrading treatment or punishment (also referred to as ‘ill-treatment’) under article 16 of the Convention.

18. The element of ‘intent’ in article 1 of CAT Is “effectively implied where a person has been discriminated against on the basis of disability” including when discrimination against people with disability may be perceived as based on “good intentions”.8
19. The Committee against Torture interprets State obligations to prevent torture as indivisible, interrelated, and interdependent with the obligation to prevent cruel, inhuman, or degrading treatment or punishment (ill-treatment) because “conditions that give rise to ill-treatment frequently facilitate torture”.9
20. The Committee against Torture has established that “each State party should prohibit, prevent and redress torture and ill-treatment in all contexts of custody or control, for example, in prisons, hospitals, schools, institutions that engage in the care of children, the aged, the mentally ill or disabled, in military service, and other institutions as well as contexts where the failure of the State to intervene encourages and enhances the danger of privately inflicted harm.” As underlined by the Committee against Torture, the prohibition of torture must be enforced in all types of institutions and States must exercise due diligence to prevent, investigate, prosecute and punish violations by non-State officials or private actors.10
21. The word ‘victim/s’ is used in various places throughout this Submission. Where this Submission uses the word ‘victims’ it does so in the context of, and consistent with international human rights law, which makes it clear that:

victims are persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law.’11

22. This Submission to the ‘Senate Inquiry into Violence, abuse and neglect against people with disability in institutional and residential settings’ is structured in a number of sections.
23. Section One examines ‘disability’ and ‘intersectionality’ in a human rights framework, highlighting that the way in which disability is understood has significant implications for recognising, and responding to violence against people with disability in institutional and residential settings. In so doing, it demonstrates that despite Australia’s international human rights obligations, people with disability in Australia are not regarded or treated as subjects of human rights law on an equal basis as others. Rather, people with disability continue to be subject to the effects of an ableist society and ableist practices that denigrate, devalue, oppress and limit their potential and their rights. These ableist practices, which continue to pervade many of our state institutions, see people with disability continue to be isolated and segregated in institutions, not deemed to be worthy of such basic human needs as love, intimacy, identity, dignity, choice and freedom.

24. This section also examines the concept of ‘intersectionality’ in recognition that intersectional discrimination is critical to not only understanding ‘disability’ but necessary in order to fully understand and appreciate the human rights violations that people with disability experience. Intersectional discrimination has unique and specific impacts on people with disability and in many cases, may lead to different or to another degree of discrimination or to new forms of discrimination not yet acknowledged by law, policy or in research. People with disability, including those in institutional and residential settings, experience intersectional discrimination that often has aggravating or compounding effects, yet in the Australian context, this is not recognised or adequately addressed in legislation and policy frameworks to prevent violence and to advance the human rights of people with disability.

25. Section Two provides an analysis of conceptualising ‘violence against people with disability’ in a human rights framework, in recognition that the lack of a clear conceptual understanding and legal recognition of violence against people with disability in Australian legislation, policy, and service frameworks perpetuates the systemic violence experienced by people with disability in institutional and residential settings. This section demonstrates for example, that regardless of setting or context, violence against people with disability in Australia continues to be conceptualised, downplayed and ‘detoxified’ as ‘abuse’ or ‘neglect’ or ‘service incidents,’ or ‘administrative infringements’ or a ‘workplace issue to be addressed’ - rather than viewed as ‘violence’ or crimes. This widespread tendency to downplay and re-frame violence as ‘abuse’ or as a ‘service incident’ results in denying people with disability the legal protections and justice extended to other people.
26. This section clarifies that a human rights approach to conceptualising violence against people with disability – mandated through Australia’s international human rights obligations - underscores the interdependence and indivisibility of civil, political, economic, social and cultural rights. It situates violence against people with disability on a continuum that spans interpersonal and structural violence; acknowledges the structural aspects and factors of discrimination, which includes structural and institutional inequalities; and analyses social and/or economic hierarchies between women and men and also among women. In so doing, it explicitly interrogates the places where violence against people with disability coincides with intersecting forms of discrimination and their attendant inequalities.

27. Section Three examines Australia’s international human rights obligations in relation to preventing and addressing all forms of violence against people with disability, including and particularly, those in institutional and residential settings. Australia is a party to seven core international human rights treaties, all of which create obligations to prevent and address violence against people with disability. As a party to these treaties, Australia has chosen to be bound by the treaty requirements, and has an international legal obligation to implement the treaty provisions through its laws and policies. However, as this Section demonstrates there remains an absolute disjuncture between these obligations and commitments and their integration into domestic law, policy, strategies and frameworks. In highlighting this disjuncture, this section includes the most recent reviews of Australia by the international human rights treaty monitoring bodies, including the strong and often ‘urgent’ recommendations made by these bodies to Australia in relation to preventing and addressing all forms of violence experienced by people with disability.

28. Importantly, this section demonstrates how the international human rights normative framework provides the framework to delineate the respective obligations and responsibilities of governments and other duty-bearers to comprehensively prevent, address, and provide redress for all forms of violence experienced by people with disability, particularly those in institutional and residential settings.
29. This section unequivocally demonstrates that the right to redress and transitional justice to people with disability who have experienced torture and ill-treatment, particularly in institutional and residential settings, is critical and urgent.
30. Section Four looks at the scope and prevalence of violence against people with disability, including those in institutional and residential settings. The picture that emerges from this section is scandalous and horrific, and demonstrates that more often than not, violence perpetrated against people with disability in institutional and residential settings, constitutes torture and ill-treatment as defined and recognised in international human rights law, including the treaties to which Australia is a party.

31. The section compiles available statistical data on the scope and prevalence of violence against people with disability across and within the settings in which they experience, and are at risk of multiple and intersecting forms of violence. Broad incidence and prevalence data is provided, and in recognition of the specific implications for women and children with disability, Aboriginal and Torres Strait Islander peoples with disability and people with disability from culturally and linguistically diverse backgrounds, the section also provides available incidence and prevalence data for these cohorts. In so doing, it demonstrates the clear over-representation of these groups in the available data and statistics. The particular egregious forms of violence perpetrated against Aboriginal people with disability, women and girls with intellectual disability, refugees and asylum seekers with disability, and children with disability in out of home care settings, is reprehensible.

32. What makes this section even more disturbing, is the widely recognised fact that there is a lack of national statistical evidence on the scope and prevalence violence against people with disability across and within the vast array of ‘settings’ and ‘places’ in which they live, occupy, and/or experience. Furthermore, the limited data that is available does not give the true picture of the level of risk and prevalence of violence, due to many factors. These include for example, the substantial barriers experienced by people with disability to reporting violence perpetrated against them; the ‘closed’ nature of institutional and residential settings; the fact that violence against people with disability is often ‘hidden’. An additional and critical factor in the lack and limitation of data is the fact that various forms of violence against people with disability are legitimised through and made permissible by a number of current laws, systems, policies and practices.

33. Section Five of this Submission examines and analyses key human rights violations integral to violence against people with disability. The experience of violence, abuse and neglect for people with disability in institutional and residential settings is underpinned by interconnecting and multidimensional violations of a range of human rights. Human rights are interdependent, indivisible and inter-related, and must be addressed in totality for their realisation. This section examines critical human rights that must be upheld in order to eliminate violence, abuse and neglect against people with disability in institutions and residential settings – equal recognition before the law; liberty and security of the person; freedom from torture and ill-treatment; protecting the integrity of the person; access to justice. This section demonstrates that violations of these human rights are pervasive in Australia, yet many remain unidentified as human rights violations and some have been addressed in a piecemeal and ad hoc way. In addition, this section demonstrates that understanding these human rights violations within a torture and ill-treatment framework would ensure that these critical human rights are comprehensively understood and addressed in order to eliminate all forms of violence, abuse and neglect against people with disability in institutional and residential settings.

34. Section Six of this Submission scrutinises and provides an analysis of the Australian legislative, policy and service system landscape in the context of violence prevention and the advancement of the rights of people with disability. In looking at issues in legislation, the Submission highlights failures in current domestic and family violence legislation and disability specific legislation (such as the NDIS Act 2013, Disability Discrimination acts; and disability services legislation). Importantly, legislative frameworks - such as guardianship law and mental health legislation are also examined, demonstrating that by their very nature, they give rise to, and facilitate, the perpetration of torture and ill treatment of people with disability in institutional and residential settings.
35. The critical importance of comprehensive, inclusive and coherent human rights-based legislation as fundamental for an effective and coordinated response to preventing and addressing violence against people with disability, including those in institutional and residential settings, is also examined. The ‘Istanbul Convention’, developed by the Council of Europe, is canvassed as model that Australia could consider in developing best practice national human rights-based legislation to prevent and address all forms of violence against women, including women with disability.

36. Key policy frameworks and responses that should provide protection to people with disability experiencing or at risk of experiencing violence, are also considered in this section. These frameworks include for example: the National Disability Strategy 2010-2020 (NDS), the National Plan to Reduce Violence Against Women and their Children 2010-2022 (the National Plan), the National Framework for Protecting Australia’s Children 2009-2020; and the current development of the National Disability Insurance Scheme Quality and Safeguarding Framework. These frameworks, including at the level of their operationalisation, have found to be ineffective in preventing and addressing violence against people with disability in institutional and residential settings. They have also been found to contribute to violence against people with disability being further hidden and/or obscured.

37. Although there are a variety of complaints mechanisms throughout Australia that can be used to report violence against people with disability in some institutional and residential settings, these mechanisms have been found to have limited effect in investigating, responding to, and preventing violence against people with disability across the range of settings and spaces where such violence occurs. This section examines a number of these complaints mechanisms, including for example: Ombudsmans, Disability Commissioners, Public Advocates, Community Visitor Schemes, and the National Disability Abuse and Neglect Hotline – promoted by the Australian Government as one of its main initiatives to prevent and address violence against people with disability, including those in institutional and residential settings.
38. In relation to complaints mechanisms, of great concern is the notification and data collection requirements which currently differ substantially between jurisdictions. Similarly, mechanisms such as Ombudsman, Disability Commissioners and Public Advocates all have significant limitations, due to a range of factors, including for example, different mandates, different roles and responsibilities, limited capacity to investigate and impose sanctions, and lack of own-motion powers to investigate.

39. Of particular concern is the fact that regardless of which complaint mechanism is used (if at all) to report violence against people with disability in institutional and residential settings (particularly funded disability services), an inherent conflict of interest exists – in that ultimately, the government body that funds the service is responsible for investigating the complaint. There is now indisputable evidence to demonstrate that the ‘covering up’ of complaints, ‘serious/critical’ and other ‘incidents’, is rampant at all levels of the system – at the direct service delivery level, at management and governance levels, and at ‘funding agency’ levels, including large Government Departments. For many years, DPOs and advocates have highlighted these failings and argued that Australia urgently requires an independent statutory national protection authority with specific purpose legislation to address and respond to all forms of violence against people with disability, regardless of the setting in which it occurs and regardless of who perpetrates it.

40. This section of the Submission also provides a brief overview and analysis of the limitations in data collection, demonstrating not only the substantial gaps in the evidence base, but the lack of any comprehensive mechanism which captures the prevalence, extent, nature, causes and impact of violence against people with disability in the range of settings in which they reside, are incarcerated or receive support services.
41. Key Recommendations are made in the following section.




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