Reforming the national strategy for disability


    Directors of all organisations, not just in the disability services sector, must consider the human rights of people with disabilities and make fresh decisions about inclusion and access. 

    On 28 November 2023, the Australian Human Rights Commission (AHRC) announced the appointment of disability and human rights lawyer Rosemary Kayess as Disability Discrimination Commissioner. “There is no better person to chart a course for the future of disability rights in Australia in the aftermath of the Royal Commission into the Violence, Abuse, Neglect and Exploitation of People with Disability,” said AHRC president, Emeritus Professor Rosalind Croucher AM MAICD.

    In the wake of the Royal Commission report, directors of disability service providers will have to provide better oversight, shift their risk management focus to their clients and consider clients’ human rights, say many in the sector.

    The Disability Royal Commission’s final report, released in September 2023, revealed the scale of the abuse, neglect and exploitation suffered by the millions of Australians with disabilities. Among the report’s 222 recommendations were the gradual phasing-out of segregated education and special schools, employment and group homes, and the creation of a federal government portfolio for disability.

    Providers should carry out a periodic review of their governance arrangements to ensure they remain fit for purpose and reflect human rights- based service delivery, the commissioners found. Directors should consider the extent to which people with disability are involved in governance and decision-making, the necessity for evaluation of board members’ experience and skills, how approaches to risk are conceived and managed, and how positive cultures are developed.

    A central recommendation was that the government introduce a Disability Rights Act that embodies the principles in the UN Convention on the Rights of Persons with Disabilities. The focus on the human rights of people with a disability rather than on benevolent service provision could “significantly change the way the whole community views and responds to disability”, says Fiona Payne FAICD, chair of Therapy Focus, a provider of allied health services to people with disability.

    Directors should understand that disability services provision should be more concerned with upholding the rights of people with disability to access services that meet their needs, rather than seeing it as the provision of a benevolent function — and this should inform everything they do, says Payne, an inaugural board member of the National Disability Insurance Agency. “Reframing of disability away from that kind of helping people, to actually recognising their rights as human beings, is a really important shift.”

    The Royal Commission also stated that providers need to consider the “dignity of risk”, which the National Disability Insurance Scheme (NDIS) defines as “supporting people to take informed risks to improve the quality of their lives”. Rather than trying to find ways to eliminate all risk — which can be highly restrictive and out of proportion to the level of risk involved — the dignity of risk for NDIS providers means working with participants to define acceptable risk levels in delivering support to achieve their goals.

    “If you take a human rights perspective, you’ll recognise people with disability have the right to take risks and make choices we might not choose ourselves,” says Payne. “It’s about that support to make good decisions, taking a person-centred approach and being clear what the organisation’s risk appetite is for supporting people to undertake what we might consider to be risky activities.”

    On the broader topic of risk management, the Royal Commission said some disability service providers have risk management approaches that are overly focused on mitigating a service provider’s exposure to legal liability or reputational damage, and this is often at the expense of upholding the rights of people with disability.

    “As human beings, we want to believe people will do the right thing, but the Royal Commission showed us that isn’t actually always the case,” says Payne. “But it also showed us that if you value that person as a human being — as opposed to someone who needs your care — you won’t treat them like that, because this is about valuing them.”

    The client comes first

    Andrew Moffat MAICD, a director and chair of Vision Australia for 12 years until October 2023, says the approach at the blindness and low-vision service provider was to put clients above the organisation. Directors have an obligation to ensure that Vision Australia will be around in 150 years, because there will still be vision-impaired people who need help. However, adds Moffat, “The people we need to wrap our arms around, to support, to help in any way — they come first.”

    He says that if disability organisations are clear about their mission, as Vision Australia is, then a lot of decisions become easier. “If that is absolutely core, really core, then when a problem does present itself, the only way of delivering that mission is dealing with the person who is blind or has low vision — helping them.”

    Central to this risk management approach and putting the client first is better oversight by directors, says Moffat, noting the Royal Commission highlighted many instances where boards were “asleep at the wheel” with no idea what was going on in the organisations they were supposed to be leading. The obligation for directors to know what’s happening in their organisation should be front of mind. “Quite a few people would, maybe naively, assume that things will happen in the way that they’d like it to, without having the checks and balances in place.”

    Outlining Vision Australia’s approach, Moffat says it has board members with lived experience of blindness who are also clients of the organisation. It has a constitutionally embedded consultation process, where a reference group of clients engage with staff, but also have regular and unfiltered access to the board. “I’m not simply relying on a management team that might have a different expectation, because there are lots of other ways for me to have that line of sight,” he says.

    The report said service providers should take a proactive approach to preventing incidents of violence, abuse, neglect and exploitation — and that data can be used to detect potential emerging cultures of concern and prevent them developing. However, providers also need the capacity to analyse and use that data.

    Overall, Moffat notes that while the Royal Commission hasn’t yet resulted in any prescriptive governance recommendations for directors, “it changes a lot, in terms of people being reminded what their job as a director is. It raises the bar quite a lot in terms of expectations of what is acceptable.”

    A long time coming

    Disability advocates had long fought for a Royal Commission to look at problems in the sector. “All commissioners agreed that the history of what disabled people have been through is shocking, really unacceptable and should never happen into the future,” says one of the commissioners, Dr Alastair McEwin AM GAICD, who was born with profound deafness. He is a former Australian Disability Discrimination Commissioner (2016–19).

    The government didn’t immediately respond to the recommendations when the report was released, saying it would take a “considered and staged approach”. The Royal Commission has asked federal, state and territory governments to publish written responses by 31 March. In the meantime, the government will be consulting all stakeholders.

    “The smart disability service organisations will want to have input into that,” says Graeme Innes AM GAICD, a non-executive director and former Human Rights Commissioner and former Disability Discrimination Commissioner. “If I were a director, I’d be watching the space, but saying to my CEO, ‘What are you doing to put our perspective to this task force on the implementation of these recommendations?’”

    The Royal Commission has recommended that service providers should consider whether their boards and leadership structures have a meaningful representation of people with disability and recruit people with disability as directors, leaders, managers and advisers. Innes says there will be a significant need to improve training of people with disability for governance and management roles because it’s a population group that has been significantly disempowered.

    He notes that directors of disability services providers should also be paid. “If organisations don’t pay directors, they are indirectly excluding those with disabilities because they have lower incomes and are unable to volunteer their time,” says Innes, who is blind. “The smart organisations are focusing on that and looking to involve more  people with disabilities on their boards and in decision-making roles. But that will become much more of a governance requirement if the government follows through on these things.”

    The report found that negative consequences can result from failure to consult people with disability on decisions affecting their lives, including decisions about how services are provided to them. Service providers should have a formal committee that includes service users and their support networks — including family, friends, carers and other people who have a supportive relationship with participants — and these committees should report to the board and periodically meet with board members to provide feedback, raise issues, and contribute to organisational policies and processes.

    The Royal Commission will have ramifications for directors of all organisations, not just those of disability service providers, according to both Innes and McEwin. For a start, all commissioners found mainstream services needed to be more accessible. “Every director should be thinking about how to make the company or its services or product or the things it delivers more accessible to disabled people,” says McEwin.

    The commission also uncovered instances of “ableism” — laws or policies with discriminatory and negative stereotypes of people with disability, he says, adding boards should be thinking about their policies and procedures in the context of the human rights for disabled people. Directors should ask themselves, “Are the policies and procedures we have ableist? Do they present or project a negative or discriminatory attitude toward disabled people? Do they prevent disabled people from living their lives like anyone else would?”

    Innes notes that the shift to a human rights- based approach to people with disabilities will apply to a much broader range of organisations. “Depending what your organisation is delivering, whether it’s a transport service, an accommodation service or whatever, then you need to understand that if the government follows through on these recommendations, you will need to nuance your organisation’s offering to take the needs of people with disabilities into account,” he says.

    This article first appeared under the headline 'Reframing the Agenda’ in the March 2024 issue of Company Director magazine.

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