I. Introduction
Royal commissions are considered the most prestigious, independent, and powerful form of Australian public inquiry.Footnote 1 Used by commonwealth and state governments to address highly controversial, sensitive, and complex issues in the public interest, the gravitas of a royal commission is based on its coercive powers of investigation, commission membership, and formal Crown appointment.Footnote 2 While there is much debate about the value of royal commissions in creating significant legal and social change,Footnote 3 there is no doubt that the royal commission has become an important political instrument to signal that a matter is of high public importance which the government is taking seriously.Footnote 4 In recent years significant systemic, structural, and deeply entrenched failures in care have plagued Australia’s health and social support sectors which have harmed – and continue to harm – our most vulnerable citizens in ways unimaginable to most Australians.Footnote 5 Further pressure has been created by three recent trends. First, more people are living longer thanks to medical advances, but often with disability, especially dementia.Footnote 6 Second, changing gender roles and greater participation of women in the paid workforce means that care and support work has become more professionalised.Footnote 7 Third, there have been international advancements in the understanding of the human rights of persons with disabilities (which include large numbers of older persons and persons with mental ill-health) since the Convention on the Rights of Persons with Disabilities (‘CRPD’) in 2008 to which Australia is a party.Footnote 8 While some progress has been made, it is telling that in the last five years, Australia has had three landmark (and briefly concurrent) royal commissions at both commonwealth and state levels into the mental health, disability and aged care sectors.
The Royal Commission into Victoria’s Mental Health System (‘Mental Health Commission’) took place between 22 February 2019 and 5 February 2021 to create a practical plan to deal with a ‘broken’ and fragmented Victorian mental health system.Footnote 9 The Royal Commission into Aged Care Quality and Safety (‘Aged Care Commission’) took place from 8 October 2018 to 26 February 2021 in the wake of the scandal of the mistreatment of residents at the Oakden Older Person’s Mental Health Facility in South Australia and Senate enquiries on elder abuse.Footnote 10 The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (‘Disability Commission’) was a wide-ranging commonwealth and state royal commission commencing on 4 April 2019 until 29 September 2023, with updates to the final report released on 2 November 2023.Footnote 11 The establishment of the Disability Commission was the culmination of tireless lobbying by disability advocates after a scandal involving rape and sexual assault at Yooralla and a senate enquiry into violence against and the abuse and neglect of persons with disabilities.Footnote 12 The commissions are discussed further in Part Three below.
I also note that the Commonwealth Royal Commission into Defence and Veteran Suicide ran over a similar timeframe commencing on 8 July 2021 and concluding on 9 September 2024 after extensive lobbying by the defence and veteran community about alarming rates of suicide among the military and veterans.Footnote 13 While that report is also relevant to this article, especially with respect to mental health and service-related disabilities, for reasons of space and time I focus only on the civilian care and support sectors.
While there is a small literature which addresses and critiques different aspects of each individual royal commission,Footnote 14 and the importance of royal commissions generally,Footnote 15 so far there is no research which has reviewed the substance of the three royal commissions and considered what they mean for the future of social support and the human rights of vulnerable Australians. Given their size, scope and expense these three royal commissions may well be ‘once in a generation’ reports and are likely to be the focus of ongoing debate and advocacy which will set the tone for policy and law reform in Australia in these three sectors for decades to come. Further, while the three sectors have much convergence in terms of populations, challenges and workforces, they tend to be siloed and are not often thought of together. Therefore, this article is significant and breaks new ground by highlighting that there is an overarching care and support sector which has similar challenges across mental health, disability and aged care and by comparing the key findings of the three commissions and considering their implications for reform in law, policy and practice in the care and support sector.
The article is structured as follows. Part Two provides a brief general overview of the nature and functions of royal commissions to put the three royal commissions into their wider socio-historical context. Part Three provides further background about the three royal commissions. Given the enormity of each report this article cannot, and is not, intended as an exhaustive analysis of all recommendations and issues raised by each royal commission. Instead, it is a select synthesis of some of the more cogent themes which have emerged across reports as outlined in Part Four. These are: (i) difficulty accessing services and supports; (ii) a lack of choice and control (absence of consumer voice); (iii) negative social attitudes and discrimination; (iv) the overuse of restrictive practices (eg. seclusion and restraint); (v) an undertrained and underpaid workforce; (vi) problems with oversight and complaints processes; and (vii) chronic under-funding. Part Four also notes key differences between reports in relation to these themes. Given the dire state of the care and support sector in Australia all of the proposed reforms are important and each of the themes is interconnected with the others. In Part Five the article provides a brief overview of the response of government to each report and the implementation of the royal commissions so far including the ‘success’ of the royal commissions.
II. The Nature and Purpose of Royal Commissions
The royal commission is an ancient British institution.Footnote 16 The earliest recorded commission, ordered by William the Conqueror in the eleventh century to investigate land title in England, was known as the Doomsday Book.Footnote 17 However, the high point of royal commissions in Britain was in 19th century with 75 occurring in the 1850s.Footnote 18 The popularity of royal commissions at that time has been attributed to the independence it gave ministers to inquire and develop legislation while avoiding giving the opposition a platform.Footnote 19 The peak of royal commissions in Britain also corresponded with a period when utilitarian and rationalistic ideals for law reform prevailed.Footnote 20 At that time the royal commission was so closely intertwined with the creation of legislation that it was viewed as ‘almost a part of the legislative process’.Footnote 21 Nevertheless, by the 20th century royal commissions were subsumed by other forms of inquiry in Britain and became rarer.Footnote 22
By contrast, in Australia royal commissions have become a regular feature of government administration federally and at state level, with 78 being appointed by the colonies prior to federation and 138 being appointed between federation and 2021.Footnote 23 In Australia, royal commissions can be appointed by the executive under legislation which automatically gives them inquisitorial powers, unlike Britain where both Houses of Parliament need to approve them.Footnote 24
It is widely agreed that there are typically three types of royal commission. The first and most prestigious are investigatory enquiries which involve enquiring into a major incident, corruption or maladministration to establish facts, allow lessons to be learned, promote reconciliation and provide reassurance and rebuilding of public trust.Footnote 25 The second are policy inquiries aimed at solving complex problems with systems and processes,Footnote 26 while the third are a more recent phenomenon, that is, a truth-telling type of enquiry which allows victims of systemic harms to share their experiences with the commission as a matter of public record and to promote recognition, catharsis and healing.Footnote 27 Royal commissions are not necessarily discrete and can be a mixture of the three types.Footnote 28
As processes which are wholly at the discretion of the executive, the reasons royal commissions are appointed and the results of royal commissions are almost always shaped by their political context.Footnote 29 Royal commissions can be instigated for legitimate reasons such as seeking evidence to tackle policy problems, as a form of consultation for implementing reform and as an external independent body to investigate government mismanagement or wrong-doing.Footnote 30 But, also for a range of politically expedient reasons like showing concern, being seen to take action, delaying decisions, minimising blame and legitimising through consultation decisions which have already been made.Footnote 31 Royal commissions are ‘largely the province of lawyers’Footnote 32 with most being chaired by current or former judges or legal practitioners. There are no formal guidelines on how to conduct a royal commission which is determined by the relevant commissioners, but they must operate within their terms of reference and within high public expectations.Footnote 33
As ad hoc enquiries royal commissions exist outside Parliament and have little control over how their recommendations are incorporated into subsequent legislation (although individual enquiries may make recommendations about how the royal commission ought to be implemented by government).Footnote 34 It is difficult to evaluate the relative quality and the ‘success’ of a royal commission as there is a lack of consensus over the relevant criteria, timeframe of assessment and difficulties in tracing a royal commission’s actual influence. Lauriat has suggested five criterion: (i) the utility of the terms of reference; (ii) the commission’s membership; (iii) the legitimacy and effectiveness of its procedures; (iv) the quality of its data and proposals and (v) the discernible impact of the commission, but does not go on to address each criterion and its importance.Footnote 35 Stark and colleagues have reported that royal commissions conducted between 2000 and 2015 have not been extensively implemented.Footnote 36 Of a total of 444 recommendations 45% were implemented and 55% were shelved, but if only partially implemented recommendations were removed, the implementation rate drops to 37%.Footnote 37 Royal commissions are more likely to be implemented where the focus is on learning rather than accountability, where they are responding to a perceived large crisis and where their final reports are received by the same executive that appointed them.Footnote 38
However, there are strategies royal commissions can use to try to increase the likelihood that their recommendations will be implemented. First, by careful ‘narrative-framing’ by focussing on core social values so that the commission’s work transcends partisanship.Footnote 39 Second, by building advocacy coalitions and solidarity among stakeholders and using the media to create public pressure.Footnote 40 Third, by releasing interim reports and recommendations and tracking their implementation while the commission is still operatingFootnote 41 and finally by producing implementable knowledge and specific recommendations rather than general guidance.Footnote 42 Each of these strategies should not be viewed in isolation, but can have a cumulative effect.Footnote 43
It is useful to bear these facts about royal commissions in mind when thinking about and comparing the mental health, aged care and disability royal commissions.
III. Background to the Three Royal Commissions – Terms of Reference, Scope and Methodology
Before exploring the similarities and differences of the three royal commissions it is necessary to understand how their terms of reference, scope and methodology may have impacted on their concerns, findings and recommendations.
A. Mental Health Commission (Victoria)
The Mental Health Commission was a policy-based enquiry.Footnote 44 However, the final report featured personal stories and case studies of many people with lived experience of the mental health system.Footnote 45 The terms of reference focussed on how the mental health system could most effectively prevent mental illness and deliver treatment, care and support, including early intervention, with the aim of everyone in the community achieving their best mental health.Footnote 46 This included improving access to and better navigation of Victoria’s mental health system, taking into account ‘best practice treatment and person-centred care models’, developing a highly skilled workforce and better infrastructure, planning, governance, funding and information-sharing.Footnote 47 The Commission was also required to consider how to improve the mental health of specific groups such as Aboriginal and Torres Strait Islander (‘ATSI’) peoples, family and carers and persons with mental illness who also had problems with drug and alcohol abuse.Footnote 48
As noted in the final report:
The terms of reference focus on the mental health and wellbeing of Victorians and reinforce the future-focused intent of this inquiry. The Commission’s role was not to concentrate on mental health services or providers, governance and funding issues alone, or indeed on any specific component of the mental health system. Instead, it was asked to take a system-wide view with the aim of improving outcomes for the Victorian community.Footnote 49
The Victorian Government appointed four commissioners with a wide range of experience in government and expertise in mental health, although no former judges or senior barristers. The chair was Penny Armytage AM, an influential public sector leader, Professor Allan Fels AO former regulator of the Australian Competition and Consumer Commission (‘ACCC’) and an academic economist and lawyer, Dr Alex Cockram a psychiatrist and healthcare leader and Professor Bernadette McSherry, a legal academic with a speciality in mental health, disability and criminal law.
While the commissioners had a wide discretion as to how they conducted the commission and made recommendations, the letters patent included some instructions about how and from whom information should be gathered, for example, by using ‘best practice approaches to engagement with people with lived experience’.Footnote 50 The Commission subsequently employed a special adviser on consumer lived experienceFootnote 51 and established an eight-member Consumer Foundations Working Group.Footnote 52 The letters patent also provided for the creation of an Expert Advisory Committee to provide support to the commission and specified it be chaired by Professor Patrick McGorry AO, academic youth psychiatrist and head of Orygen, an independent mental health government advisory body.Footnote 53 In addition, the Mental Health Commission was required to have regard to the findings of the Productivity Commission’s review into mental health and to collaborate with the Disability Royal Commission.Footnote 54
The Mental Health Commission had 12,500 contributions from consultations, focus groups, roundtables, public hearings, witness statements, surveys and workshops with the general public and targeted groups throughout Victoria for nearly two years.Footnote 55 It also received 3,200 submissions from individuals and organisations.Footnote 56 The Mental Health Commission was extended by three months due to the COVID-19 pandemic. In November 2019, the Mental Health Commission delivered its interim report with nine recommendations of the most urgent matters the Commission believed were necessary to lay the foundations for the future reforms it would include in its final report.Footnote 57 Those nine recommendations included the creation of a new Collaborative Centre for Mental Health and Wellbeing to develop and provide adult mental health services and conduct interdisciplinary, translational research into new treatments and models of care and support; new hospital beds; greater inclusion of people with lived experience into the mental health system (including a new consumer-led non-hospital mental health service); and a new revenue source (tax or levy) dedicated to mental health. In 2021 the Mental Health Commission delivered its final report in six volumes with a further 65 recommendations (in addition to the nine recommendations in its interim report).Footnote 58
The cost of the Mental Health Commission is unclear, but the letters patent contained the figure of $13.6 million.Footnote 59
B. Aged Care Commission (Commonwealth)
The terms of reference provided that the purpose of the Aged Care Commission was to enquire into the quality and safety of aged care services, whether older persons’ needs were being met and the extent of substandard care.Footnote 60 There was some overlap with the Disability Commission in that the commission was also interested in learning about mistreatment and abuse.Footnote 61 The terms of reference had a focus on the future of the aged care sector including how best to provide services to younger people with disabilities in residential aged care and growing numbers of people with dementia, how to increase choice and provide care in accordance with the widespread preference for care to be provided in the home.Footnote 62 The Aged Care Commission also needed to take into account services in rural and remote areas.Footnote 63 Matters which the commissioners considered were ‘out of scope’ included hospital care, guardianship, family disputes, medication management and elder abuse.Footnote 64
The original commissioners were Richard Tracey AM QC, a former judge and legal practitioner, and Lynelle Briggs AO, a senior public servant, a former CEO of Medicare and Public Service Commissioner.Footnote 65 Unfortunately, Commissioner Tracey died in October 2019 and was replaced by another lawyer and former judge Gaetano (Tony) Pagone KC.Footnote 66 Commissioners Tracey and Briggs authored the interim report and Commissioners Pagone and Briggs authored the final report.Footnote 67 The commission was extended due to the death of Commissioner Tracey and the COVID-19 pandemic.Footnote 68
The Aged Care Commission involved 10,574 public submissions and 1029 responses to a service provider survey (60% of providers) in November 2018.Footnote 69 The commission included 600 witnesses and 99 days of hearings across Australia, twelve community forums and 13 roundtable discussions with experts in Sydney, Melbourne, Adelaide and Canberra.Footnote 70 The Aged Care Commission also shared information with and collaborated with the Disability Commission.Footnote 71 It produced special reports on the government’s aged care failures during the COVID-19 pandemic.Footnote 72 The final report was extensive and was made up of five volumes containing 148 recommendations. The Aged Care Commission is reported to have cost the Commonwealth government $104.30 million over four years.Footnote 73
C. Disability Royal Commission (Commonwealth and States and Territories)
Unlike the Mental Health and Aged Care Commissions which were focussed on particular service systems, the Disability Commission was focussed on best practice in preventing and responding to violence against, and abuse, neglect and exploitation of persons with disabilities in all settings and contexts.Footnote 74 Those settings and contexts were enormously broad and diverse, covering health, education, accommodation (group homes), disability services, the justice system, employment, child protection, family and domestic violence, public places and the National Disability Insurance Scheme (NDIS).Footnote 75 The other focus of the Disability Commission was on what should be done to promote a more inclusive society that supports the independence of people with disability and their right to live free from violence, neglect and exploitation.Footnote 76
The terms of reference for the Disability Commission were not developed by the Commonwealth government in isolation, but only after extensive consultation with the disability community and state and territory governments.Footnote 77 Accordingly, the Disability Commission was centred and grounded on the voices of persons with disability and their experiences of violence, abuse, exploitation and neglect, their human rights and multi-layered experiences and identities.Footnote 78 Like the other commissions, the Disability Commission was required to pay attention to the specific needs of particular groups such as ATSI peoples and persons from culturally and linguistically diverse backgrounds.Footnote 79 Thus, the Disability Commission was a policy-focussed commission, but also one which involved extensive truth-telling. In addition, the states and territories also issued letters patent on identical terms to the Commonwealth, making the Disability Commission in effect seven concurrent commissions of inquiry and a truly national commission.Footnote 80
There were six commissioners appointed to the Disability Commission with wide experience of disability rights issues. These were: the chair, the Honorable Ronald Sackville AO QC, a former judge, barrister and legal academic; Ms Barbara Bennett PSM, a senior public servant and CEO of the Australian Department of Social Services and the Australian Department of Human Services; Ms Andrea Mason OAM, an indigenous woman and expert on indigenous affairs; Dr Rhonda Galbally AC, a person with lived experience of disability, a disability rights advocate and CEO of several public sector organisations; Dr Alastair McEwin, a person who is profoundly deaf, who has had long involvement with disability and human rights development and a Disability Discrimination Commissioner; and the Honorable John Francis Ryan AM, a teacher, senior public servant and former member of parliament.Footnote 81
The conduct of the Disability Commission was expansive, using a trauma-informed approach. It received 7,944 submissions from individuals, groups and organisations. It conducted 34 public hearings with 154 public hearing days and 837 witnesses (209 involving people with disabilities) in each state and territory and 1552 private sessions (involving only the witness and the commissioners).Footnote 82 It also conducted over 700 activities to engage with persons with disabilities, their families and supporters, to reach those who might otherwise not participate in the Commission.Footnote 83 The Disability Commission had two expert advisory committees. The first was the Disability Strategy Engagement Group (DSEG) co-chaired by Commissioners Galbally and McEwin consisting of community experts and senior commission staff.Footnote 84 The second was the First Nations Peoples Strategic Advisory Group (FNPSAG) co-chaired by Commisioners Mason and Galbally and made up of community experts and senior commission staff.Footnote 85 The Disability Commission also had a number of advisors with disabilities such as Maurice Corcoran and Ron McCallum.Footnote 86
The conduct of the Disability Commission was affected by COVID-19 and many of the consultations during that time occurred online.Footnote 87 The Disability Commission also published two reports on how the pandemic was impacting persons with disabilities which were accepted and enacted by the government during the course of the commission.Footnote 88 The commission also produced reports of public hearings, published fourteen issues papers and commissioned and published research.Footnote 89 The interim report was published on 30 October 2020. The final report consisted of twelve volumes, plus an introductory volume, and made 222 recommendations on how to create a more inclusive society in which persons with disability do not suffer violence, abuse, neglect or exploitation.Footnote 90 The Disability Commission was the longest running and most expensive of all Australian royal commissions so far. It is estimated to have cost $599.3 million.Footnote 91
An interesting feature of the Aged Care and Disability Commissions is that the final reports involved ‘split’ recommendations where the commissioners could not reach agreement. The ‘split’ recommendations in both commissions reflected different ways of responding to the problems revealed by the investigations of each commission and seemed to reflect the different backgrounds and orientations of the respective commissioners. The details of these disagreements are discussed below. It is arguable that ‘split’ recommendations are undesirable in terms of the ‘success’ of a royal commission and that it is preferable that all commissioners speak with one voice, as occurred with the Mental Health Commission.
IV. Common Themes Across all Three Final Reports
It is not surprising that there were a number of common themes in the final reports of all three Royal Commissions. Notably, the three Royal Commissions involve sectors and settings with considerable overlap, particularly in terms of human rights issues and systemic structural failures in care. For example, the legacy of institutionalization; complex bureaucratic systems that are difficult to access and are not focused on individual choice or control; overuse of restrictive practices; endemic violence, neglect and abuse; improper regulation and oversight; chronic underfunding and worker shortages. They also involve similar populations of vulnerable persons and a shared pool of support providers and workers. At times, the three commissions even used similar language, so that there was some amount of repetition between the reports. Having said that, the reports did have slightly different emphasises given their different terms of reference and some different approaches to similar problems. In this section I analyse each of the seven interdependent themes which recurred across reports in turn. These are: (i) difficulty accessing services and supports; (ii) a lack of choice and control (absence of consumer voice); (iii) negative social attitudes and discrimination; (iv) the overuse of restrictive practices (eg. seclusion and restraint); (v) an undertrained and underpaid workforce; (vi) problems with oversight and complaints processes; and (vii) chronic under-funding.
A. Difficulty Accessing Services and Supports
A recurring theme of the Mental Health and Aged Care Commissions was the difficulty of accessing the right services when people needed them and navigating each respective service system.Footnote 92 By contrast, the Disability Commission was concerned with violence, abuse, neglect and exploitation across a wide range of service systems and focussed on the general inaccessibility of society by persons with disabilities.Footnote 93
All three commissions found that there was a lack of information to allow people to make decisions about their needs and the type of services available in accessible formats.Footnote 94 The Disability Commission was particularly concerned about a lack of interpreters. It was also concerned that supported decision-making (where a person is supported to make their own decisions or decisions are made in accordance with his or her will and preferences), rather than substituted decision-making (made by a third party in the person’s objective best interests), be embedded in all systems, as accessibility is closely related to autonomy.Footnote 95
All reports noted a lack of services to meet demand, especially services that would provide care and support in people’s homes and communities.Footnote 96 When services were provided, often after long delays, they may not have been suitable, or were far less than needed.Footnote 97 The Mental Health Commission, in particular, observed the problem of the ‘missing middle’ for those people whose problems were too complex, severe and enduring for primary care, but not severe enough for entry into specialist mental health services.Footnote 98 It was noted that ‘increasingly a person must exhibit signs of major distress or crisis before treatment, care and support are provided’.Footnote 99
The three Commissions identified a lack of respite care to support families.Footnote 100 For instance, the Aged Care Commission noted that ‘respite care can be a circuit-breaker and opportunity for an older person’s rehabilitation, reablement and medication review’Footnote 101 but it was very difficult to access the right type and duration. Older people also had difficulty accessing disability supports, as they were excluded from the NDIS and had limited access to allied health services (eg. dieticians, exercise physiologists, mental health workers, occupational therapists etc). Only 2% of home care funding was spent on allied health services and where such services were obtained the person had fewer than five sessions.Footnote 102
All of the Commissions noted that access and discrimination was an even bigger issue for those already at a disadvantage, especially those in rural and remote areas, or with diverse backgrounds.Footnote 103 They also noted the need for greater access to advocacy and legal representation.Footnote 104
The three Commissions made a number of recommendations to improve accessibility so that people would be able to get what they need, in a way they can understand, close to their homes and communities. The Mental Health Commission reimagined a mental health system ‘fundamentally restructured around a community-based model of care’ with a ‘broad front-door’ where people could access the level of services they needed and be referred to them in a number of ways.Footnote 105 This included the co-production with persons with lived experience of mental ill-health of a website explaining how to access the mental health system.Footnote 106 The Aged Care Commission made a number of recommendations to improve accessibility, including a right to equitable access in a new Aged Care Act,Footnote 107 the establishment of a dementia support pathway,Footnote 108 more accessible and usable information about aged care on the My Aged Care website,Footnote 109 the creation of ‘care finder’ case managers to support personalised navigation of aged careFootnote 110 and designing care for diversity, difference and individuality.Footnote 111 The Disability Commission recommended that governments produce a National Plan to Promote Accessible Information,Footnote 112 an increase in the number of Auslan interpretersFootnote 113 and access to appropriately skilled and qualified interpreters,Footnote 114 the creation of a new supported decision-making frameworkFootnote 115 and additional funding for advocacy programs.Footnote 116
B. Choice and Control (Absence of Consumer Voice)
Not surprisingly, a lack of choice and control and the absence of consumer voice was a recurring theme of all three Commissions and was related to problems with access to care systems noted above. All Commissions painted a picture of people whose perspectives and experiences were often overlooked and lacked control of even simple decisions in how they lived their lives.
The Mental Health Commission was particularly attuned to the power imbalances between staff and consumers in a rigid mental health system which gave consumers limited choices over their care.Footnote 117 It was, therefore, important not to just give persons with lived experience greater voice, but to embed the voices of persons with lived experience in all aspects of the mental health system.Footnote 118
Similarly, the Aged Care Commission was concerned about the emphasis on ‘task-based’ work in aged care which left little room for meeting the individual social and emotional needs and preferences of the person receiving care.Footnote 119 As the Aged Care Commission noted:
we heard numerous examples of what we call small oversights, such as a cup of tea placed just out of reach, a request not acknowledged or call bells answered. In isolation, these ‘oversights’ may not be considered significant instances of substandard care. But when repeated over time, they can be more than just unkind; they can amount to neglect.Footnote 120
Nor did the system cater to the overwhelming desire of most people to receive care in their own homes and communities.Footnote 121
The Aged Care Commission further pointed out:
We heard the absence of a strong consumer voice is a notable feature of aged care in Australia. When the design and delivery of a service or system does not take account of people’s needs, preferences and circumstances, it can exclude and alienate the people it seeks to assist.Footnote 122
Lack of choice and control was also a significant theme of the Disability Commission with respect to both preventing violence, abuse, neglect and exploitation and creating a more inclusive community.Footnote 123 Persons with disabilities voiced their desire to make even relatively basic decisions in their lives like who to have as friends, where and with whom to live, how to spend money, having sexual and intimate relationships and going out and finding employment.Footnote 124 Lack of choice and control was also linked to segregation with the Commission noting: ‘We must address the ableism that gives persons with disability no choice and results in people entering and remaining in settings where they are isolated from their peers and the general community.’Footnote 125
However, there was some disagreement between Commissioners as to whether Australian Disability Enterprises, special education and group homes ought to be phased out or whether they provided persons with disabilities with the choice of a disability-specific environment.Footnote 126 The Disability Commission also noted the need for greater funding for support co-ordination in the NDIS to increase the choices of persons with disabilities as well as providers of last resort to address the lack of choices of ATSI persons with disabilities in remote areas.Footnote 127
Both the Mental Health and Disability Commissions linked having choice and control with the need for the leadership of persons with lived experience of the systems and settings which shaped their lives.Footnote 128
In order to increase choice and control the Mental Health Commission recommended the creation of a range of new mental health services including government investment in consumer-led diverse and innovative ‘safe spaces’ and crisis respite facilities,Footnote 129 a new lived experience agencyFootnote 130 and incorporating persons with lived experience across the entire mental health system.Footnote 131 The Aged Care Commission recommended that the new Aged Care Act be designed to enable people to exercise choice and control in the planning and delivery of their care,Footnote 132 including new rights to choose between services,Footnote 133 and a right to be given support to exercise choices.Footnote 134 The Disability Commission made a number of recommendations including a right to exercise choice about healthcare options and to choose between available services,Footnote 135 support for persons with disabilities to transition to inclusive employment services of their choiceFootnote 136 and to improve access to alternative housing options.Footnote 137
C. Negative Social Attitudes and Discrimination
Negative social attitudes towards people with mental ill-health, older people and persons with disability featured in each Commission and were often seen as underlying other problems in each sector such as chronic underfunding; lack of choice, control and consumer voice; and abuse and substandard care. While negative social attitudes and discrimination were discussed by all Commissions, this theme appeared most stridently in the Disability Commission and its recommendations. The difference in emphasis may not necessarily mean that negative social attitudes and discrimination are less serious problems for the elderly and persons with mental ill-health. Rather it may reflect the appointment of persons with disability as Commissioners in the Disability Commission, the centring of the CRPD – a non-discrimination treaty – by the Disability Commission, and the prominence of non-discrimination and equality as key values of the disability rights movement. That is, the Disability Commission, observed as being an ‘ideologically driven’ commission,Footnote 138 identified certain occurrences as discriminatory which were not so named by the other commissions, even though they were also present in the aged care and mental health sectors. Therefore, I will use a wide interpretation of discrimination to include social isolation, receiving lower quality services than other Australians and lack of social inclusion.
Negative social attitudes towards people with mental ill-health (referred to by the Mental Health Commission as ‘stigma’) and discrimination was one of the core themes and ‘ever present’ problems which cut across the Commission’s final report. The Commission was concerned that the
history of marginalising people living with mental illness or experiencing psychological distress is reflected in structural challenges in the mental health system, such as inadequate investment, the inability to meet increasing demand, and a lack of system planning. These challenges partly exist because of the stigma and discrimination associated with mental illness—community attitudes deter governments from investing in good mental health and wellbeing.Footnote 139
Consistent with the Aged Care Commission, the Mental Health Commission noted the service gap with older Victorians who are often turned away from services.Footnote 140
In the Aged Care Commission discussion of negative social attitudes and discrimination towards older people featured in two important respects: the ageism which underpins the system;Footnote 141 and people with disability in aged care who cannot access the NDIS (because they only became disabled after age 65).Footnote 142 Overall, the Aged Care Commission was concerned that aged care was treated by the government as a ‘lower order priority’ which lacked government leadership.Footnote 143 In particular, it was also noted that:
Attitudes and assumptions about older people and aged care can affect the delivery of aged care. Assumptions about the natural process of ageing may contribute to a lack of attention to prevention and reablement. When it comes to improving health, some conditions, such as back pain or feelings of depression, may be put down to ‘old age’. Assumptions about an older person’s cognitive capacity may lead to them being excluded from conversations, staff members talking about them as if they are not there, and their privacy not being respected. Commissioner Briggs considers that ageism is a systemic problem in the Australian community that must be addressed.Footnote 144
While the Aged Care Commission did not identify the isolation of older persons as a form of discrimination (unlike the Disability Commission), it was very concerned that the government and aged care system work to lessen that isolation.Footnote 145 To this end, the Aged Care Commission drew attention to a number of important strategies to help people age well beyond residential aged care, including ‘designing age-friendly communities that support people to stay in their own homes into later life, age-friendly city and town design, and fostering more positive attitudes and beliefs about older people.’Footnote 146
Negative social attitudes towards people with disabilities and discrimination were even stronger themes in the Disability Commission than the other commissions. The Disability Commission, given its terms of reference, was concerned with two main issues. These were: (1) the effect of ‘ableism’ on violence, abuse, neglect and exploitation and (2) creating a more inclusive Australian society. The Disability Commission closely aligned its definitions of equality, discrimination and inclusion with those contained in the CRPD where inclusion is a necessary part of equality and non-discrimination.Footnote 147 It noted that ‘while there are multiple complex causes behind the violence, abuse, neglect and exploitation experienced by people with disability, ableism is a fundamental driver.’Footnote 148
The Disability Commission emphasised that it is important for persons with disability to live, work and play in the community alongside people without disability and for society to have higher expectations about what persons with disabilities can achieve and contribute, including taking up leadership positions.Footnote 149
As already noted, while there was agreement among the Commissioners that segregation could be discriminatory, the Commissioners disagreed as to whether it was always discriminatory and whether specialist environments could also help persons with disability thrive. The Chair and Commissioner Ryan took the view that separation on the basis of disability for a particular purpose can be consistent with inclusion provided people also interact with peers and the community on a regular basis.Footnote 150 However, Commissioners Bennett, Galbally and McEwin took the view that any segregation was incompatible with inclusion and that it is ‘unconscionable that segregation on the basis of disability remains a policy default in the 21st century.’Footnote 151 They also pointed out that ‘ending segregation was core to the development of the CRPD.’Footnote 152
The Mental Health Commission made a number of recommendations about what the Victorian government should do to respond to discrimination. These included establishing mentally healthy workplaces free from stigma and discrimination and supportive of people with mental ill-health;Footnote 153 protecting and ensuring the right of people with mental ill-health to enjoy the highest attainable standard of mental health and wellbeing without discrimination;Footnote 154 and that the Mental Health and Wellbeing Commission, in consultation with community partners, design and implement community and workplace anti-stigma programs as well as creating mechanisms to address systemic discrimination and protect individuals from mental health discrimination.Footnote 155
The Aged Care Commission made a number of recommendations in relation to addressing discrimination in aged care, although not in relation to changing wider social attitudes towards older people. For instance, it recommended a new Aged Care Act which would contain a number of rights of older persons including receiving equitable access to aged care and fair, non-discriminatory and equitable treatment in aged care.Footnote 156 It also recommended that the Age Discrimination Commissioner and Disability Discrimination Commissioner report to Parliament annually about the number of people with disabilities in aged care and their ability to access supports equivalent to the NDIS.Footnote 157
The deep concern of the Disability Commission with negative social attitudes and discrimination towards persons with disability was reflected in the Commission’s key recommendations. In particular, the Disability Commission recommended the creation of a new Disability Rights Act (DRA) which would effectively incorporate the CRPD into Australian law and provide persons with disabilities with domestic legal recourse, enforcement and compensation for rights violations.Footnote 158 The Disability Commission wanted to create an environment where governments, employers, schools and service providers are more proactive in preventing violence, abuse, neglect and exploitation of persons with disabilities and in preventing discrimination and promoting inclusion, rather than relying on persons with disability who lack knowledge and resources to initiate claims.Footnote 159 The Disability Commission also recommended strengthening the Disability Discrimination Act (DDA) in a number of respects, including simplifying the definitions of direct and indirect discrimination. In particular the Disability Commission wanted to remove the ‘comparator test’ so that persons with disability claiming direct discrimination would only need to prove that they were treated less favorably then a person without disability in similar circumstances, and to put the onus on the respondent (rather than the person with disability) to prove the reason they were treated less favorably was not because of a disability.Footnote 160 Similarly, defenses to claims for indirect discrimination would only be able to claim that an adjustment would cause ‘unjustifiable hardship’, rather than ‘unreasonableness’, and ‘reasonable adjustments’ would simply become ‘adjustments’ – that is, ‘reasonableness’ would no longer be a limiting factor.Footnote 161 Harassment of a person with disability would be more widely defined so that it is not limited to particular contexts or have to be a repeated behavior, rather than a one-off.Footnote 162 The DDA would also include new protections against vilification and offensive behavior because of disability.Footnote 163 The Disability Commission recommended the creation of a new National Disability Commission which would provide robust monitoring and reporting of outcomes for persons with disability including having oversight of the DDA and new DRA.Footnote 164 In addition, the Disability Commission recommended the creation of a new post, the Minister for Disability and Inclusion and a Department of Disability Equality and Inclusion.Footnote 165 Finally a new National Disability Agreement would advance the equality, inclusion and rights of people with disabilities in Australia.Footnote 166 Of course, the recommendations of the Disability Commission with respect to discrimination would benefit elderly persons and persons with mental ill-health as well.
D. Overuse of Restrictive Practices (e.g. seclusion and restraint)
One of the most interesting themes in the three Commission reports was how they defined and dealt with restrictive practices. There is no national definition of restrictive practices and definitions vary across sectors. The Mental Health Commission took its definitions of restrictive practices from the Mental Health Act 2014 (Vic) in force at that time as referring to bodily restraint, that is, physical or mechanical restraint (but not the use of restrictive furniture) and seclusion which is confinement in a room or area without the ability to leave.Footnote 167 It also defined ‘chemical restraint’ as using medication to control behaviour and ‘emotional’ and ‘psychological’ restraint as an inability to express oneself freely in light of previous experiences.Footnote 168 The Aged Care Commission defined restrictive practices as ‘activities or interventions, either physical or pharmacological which restrict a person’s free movement or ability to make decisions.’Footnote 169 That said, the Aged Care Commission defined restrictive practices quite broadly to include activities like locking someone in their room (seclusion), chemical restraint, locking in tray tables over beds and chairs, taking away mobility aids and even sitting a person in a ‘deep chair’ which they are unable to get out of.Footnote 170 The Disability Commission defined restrictive practices as a practice or intervention that has the effect of restricting a person’s rights or freedom of movement which can be physical, chemical, mechanical or environmental.Footnote 171
The Disability Commission noted that while restrictive practices were used in a wide range of settings – health, education and justice – there was a lack of data of when they were used.Footnote 172 However, the NDIS did have some statistics in relation to registered service providers and recorded that in the year 2021-22 there were 5.58 million authorised uses of restrictive practices and 1.42 million notified unauthorised uses.Footnote 173 That is, restrictive practices are widely used.
There was general agreement across all three royal commissions that restrictive practices were harmful and could lead to physical injuries, medical decline, trauma and even death.Footnote 174 The Mental Health Commission was concerned that restrictive practices can be counter-productive to a consumer’s long-term recovery as the trauma people experience while in hospital can deter them from seeking treatment in the future.Footnote 175 The Aged Care Commission identified inappropriate use of restrictive practices as a form of substandard care and abuse where it occurs without clear justification and clinical indication.Footnote 176 The Disability Commission considered that restrictive practices could be a form of violence and abuse which is disproportionately suffered by persons with disabilities.Footnote 177 The Aged Care and Disability Commissions noted that restrictive practices could have no effect or even make so-called ‘behaviours of concern’ (e.g. behaviours which are of such an intensity, frequency or duration that they put the safety of the person or others in jeopardyFootnote 178) worse, while shutting down an important way older persons and persons with disabilities communicate unmet needs and reinforcing trauma.Footnote 179
In addition, there was consensus across all three commissions that restrictive interventions were overused in the mental health, disability and aged care sectors and required much stronger and nationally consistent regulation.Footnote 180 All of the commissions noted that use of restrictive practices could be caused by systemic drivers such as, insufficient or poorly trained staff, or underutilisation of positive behaviour support.Footnote 181 Therefore, wider structural and systemic change was often required, even where there was a commitment in a sector, such as mental health, to reducing or even eliminating the use of restrictive practices.Footnote 182
The Mental Health Commission noted that bodily restraint and seclusion were strictly regulated in Victoria, but that chemical restraint was widely used in mental health but not recorded or regulated.Footnote 183 The Aged Care Commission and Disability Commissions were also concerned about the need to reduce the use of chemical restraint and the misuse of psychotropic medication.Footnote 184 The Disability Commission found that chemical restraint was the form of restrictive practice most frequently used and most often preferred by doctors.Footnote 185 It noted that ‘[i]n some cases, the number and dosage levels of antipsychotic medications administered to people with cognitive disability are so significant they constitute abuse.’Footnote 186
The Mental Health Commission took the strongest stance of all three royal commissions in relation to acknowledging the seriousness of restrictive practices and the importance of prioritising their reduction and eventual elimination. To this end, the Mental Health Commission made a number of significant recommendations about the use of seclusion and restraint. The most hard-hitting and controversial one being the need of the Victorian Government to immediately reduce the use of seclusion and restraint in mental health with the aim to eliminate it within ten years.Footnote 187 As the Mental Health Commission explained:
Any lesser aspiration will impair efforts to achieve a system that is safe for both consumers and staff that provides the highest standard of treatment and support for people experiencing severe distress or who are in crisis.Footnote 188
In addition, the Mental Health Commission recommended the creation of a new Mental Health and Wellbeing Act which specifies measures to reduce the rates and negative impacts of compulsory treatment, seclusion and restraintFootnote 189 and to regulate chemical restraint.Footnote 190 The Mental Health Commission also recommended that the government implement a number of strategies and targets to proactively reduce the seclusion and restraint with a view to its elimination. These included a new Chief Officer for Mental Health and Wellbeing to develop a reduction strategy; the Mental Health Improvement Unit at Safer Care Victoria to co-design with persons with lived experiences programs and supports to investigate local data practices and create workplace training; and continued support for the Safe Wards program already being implemented.Footnote 191 Strong oversight of the use of seclusion and restraint would also be provided by the Mental Health and Wellbeing Commission.Footnote 192
While the Mental Health Commission understood the issues around the need for restrictive practices for staff safety, the Commission cited the example of Pennsylvania where seclusion and restraint had been effectively eliminated in mental health services even though the legal ability to use it remained in legislation.Footnote 193 To this extent, the Mental Health Commission noted:
On balance the Commission views the regulation of seclusion and restraint within a redesigned system as a protection, not permission. Its use should be eliminated as an accepted practice.Footnote 194
The Aged Care Commission, however, seemed to be far more concerned about ensuring restrictive practices were properly justified than on the urgency of driving down or eliminating their use and took a weaker position on this than the Mental Health Commission. The Aged Care Commission was critical that changes in relation to restrictive practices introduced by the government in response to its interim report did not go far enough.Footnote 195 Its central recommendation was that the government amend the Quality of Care Principles 2014 (Cth) so that restrictive practices must be based on the assessment of an independent expert and a behaviour support plan lodged with the regulator and subject to ongoing monitoring, reporting and review.Footnote 196 It also recommended that use of restrictive practices be otherwise prohibited unless they are used in an emergency to avert the risk of immediate physical harm and are a last resort, necessary and proportionate, are for the shortest possible time, are subject to monitoring and review and have the informed consent of the person or someone on their behalf.Footnote 197 It recommended that chemical restraint was to be expressly documented as being for that purpose on the doctor’s prescription.Footnote 198
However, the Aged Care Commission noted that the government should also consider the findings of the Disability Commission and ensure that persons in aged care are treated equally with those in the disability sector.Footnote 199 The recommendations in relation to restrictive practices were intended to be reinforced by a new Aged Care Act which set out the right of older persons to ‘liberty, freedom of movement and freedom from restraint’,Footnote 200 more comprehensive quality indicators and benchmarks to include restrictive practices,Footnote 201 greater control over medication management and increased access to reviews,Footnote 202 restrictions on the use of anti-psychotics which can only be prescribed by a psychiatrist and geriatricianFootnote 203 and a generally reformed and better funded sector where staff trained in dementia care have a minimum amount time they must to spend with each resident.Footnote 204
The Disability Commission had the benefit of the Mental Health and Aged Care Commissions and reviewed all the regulatory frameworks for the use of restrictive practices in all jurisdictions and settings and noted their inconsistencies.Footnote 205 The use of restrictive practices in education, in particular, lacked any sort of regulation.Footnote 206 It concluded that there were two approaches to regulation. The first being an authorisation process limiting when restrictive practices could be used and the second being the prohibition of some practices which carried unacceptable risk.Footnote 207 The Disability Commission’s recommendations were a mixture of both approaches. Its main recommendation was that states and territories must ensure that appropriate legal frameworks are in place in disability, health and justice settings which provide that a person should not be subjected to restrictive practices except in accordance with procedures for authorisation, review and oversight established by law.Footnote 208 It also reiterated that restrictive practices should only be used as a last resort, in response to serious harm, in the least restrictive way, only where the negative consequences of the restriction are proportionate with the harm, for the shortest possible time, and with independent review, oversight and monitoring.Footnote 209 The commission recommended the establishment of a senior practitioner who would have extensive responsibilities to promote the reduction and elimination of restrictive practices, protect the rights of people with disabilities, develop and provide information and advice about restrictive practices, decide applications to use restrictive practices in accordance with strict standards, provide information about behaviour support planning, receive and investigate complaints and investigate matters on its own motion.Footnote 210
In addition, the Disability Commission decided that in the interest of national consistency all the prohibitions on restrictive practices which currently exist should be applied universally to prevent the most dangerous from being used.Footnote 211 While the list is lengthy it includes outlawing particular dangerous holds and cuffs, not secluding people who are self-harming or suicidal, not using drugs to continuously sedate people and prohibiting the solitary confinement of children and young people.Footnote 212 The Commission wanted to ensure that there was more data collection and public reporting on the use of psychotropic medication and restrictive practices.Footnote 213 It also wanted to strengthen the evidence-base on how to reduce or eliminate the use of restrictive practices with respect to persons with disabilities.Footnote 214 The Disability Commission was impressed with the approach of the Mental Health Commission in trying to drive down the use of restrictive practices and recommended the use of targets and performance indicators to push the reduction and elimination of restrictive practices.Footnote 215 The Disability Commission was also critical of the emphasis on getting consent from the person or their representative for the use of restrictive practices in the Aged Care Commission, which it was concerned did not include supported decision-making and increased applications for guardianship.Footnote 216
Overall, the different commissions were able to learn from each other in dealing with a similar issue in each sector. Arguably, the use of a senior practitioner and positive behaviour support could be useful in the mental health sector as a way of understanding the behaviour of patients and as a way of developing alternatives to the use of restrictive practices. While the aged care and disability sectors ought to adopt the focus on setting targets, reducing and aggressively trying to eliminate restrictive practices from the mental health sector. Also, the disability sector could benefit from following some of the governance recommendations set by the Mental Health Commission in that the function of the senior practitioner in approving behaviour support plans should be separated from the oversight functions of that office. Reducing and eliminating restrictive practices should be a high priority across all three sectors.
E. Undertrained and Underpaid Workforce
The aged care, disability and mental health sectors of the economy are often referred to as part of the care and support workforce.Footnote 217 The care and support workforce is one of the fastest growing sectors of the Australian economyFootnote 218 and makes an enormous difference in the day-to-day lives of people who need aged care, disability and mental health support. As the government has recently noted ‘the interdependent nature of the service systems means addressing challenges like workforce shortages and appropriate regulatory settings needs to be carefully managed to consider impacts on other care and support sectors.’Footnote 219
Therefore, it is not surprising that all three commissions reported that there were significant workforce shortages in all sectors and that most people preforming care work were under-skilled and under-paid.Footnote 220 Under-resourcing in the mental health system meant that ‘despite the commitment and competence displayed by workers, many have struggled to perform at their best in a crisis-driven system.’Footnote 221 Over half the people in aged care have dementia and staff often lacked skills and time to provide high quality dementia care and basic things like brushing teeth, toilet assistance, infection control and proper medication management.Footnote 222 As the Aged Care Commission stated:
The sector has difficulty attracting and retaining well-skilled people due to: low wages and poor employment conditions; lack of investment in staff and, in particular, staff training; limited opportunities to progress or be promoted; and no career pathways.Footnote 223
The Disability Commission noted that problems with screening, recruitment and training contributed to the violence, abuse, neglect and exploitation experienced by people across the sector.Footnote 224 The Disability Commission was also concerned to ensure that health workers and teachers were sufficiently trained to deal with persons with disabilities, especially those with cognitive impairments, in increasing Auslan interpreters and ensuring that the disability workforce was trained in the use of interpreters.Footnote 225 In particular the Commission noted, reflecting the observations of the Aged Care Commission, that:
The crisis in disability workforce has been driven by both the growth of the sector and the large numbers of workers who are leaving the industry. Worker stress due to the insecure nature of their employment, low pay, concerns about having the skills and time to complete all aspects of their jobs within paid working hours and undervaluing of disability support work contribute to these workforce shortages.Footnote 226
Workforce shortages were even worse in regional, rural and remote areas.Footnote 227 The Disability Commission noted that investment in the First Nations disability workforce was key to addressing the availability of culturally safe services in rural and remote areas.Footnote 228
All three commissions recommended major workforce reforms across each sector. The Mental Health Commission recommended better workforce planning;Footnote 229 more training for trauma informed care and working with families and carers;Footnote 230 providing incentives for the mental health and wellbeing workforce in rural and regional areas;Footnote 231 the development of a workforce strategy and Mental Health and Wellbeing Capability Framework;Footnote 232 as well as reforms to workforce safety and wellbeing.Footnote 233 The Aged Care Commission made a range recommendations for sweeping reforms so that providers had a duty to ensure that workers have appropriate experience, qualifications, skills and training (including trauma-informed care, cultural safety, dementia and palliative care training);Footnote 234 better aged care workforce planning;Footnote 235 an Aged Care Workforce Industry Council to lead change, increase skills competency and map career pathways across the sector;Footnote 236 increased award wages and remuneration and minimum staff time for residential aged care including a registered nurse on-site for sixteen hours per day.Footnote 237 The Disability Commission recommended the most workforce reforms. These included plans to increase the number of Auslan interpreters and access to appropriately skilled interpreters;Footnote 238 greater workforce development;Footnote 239 increasing capability of healthcare workers in dealing with persons with cognitive disability;Footnote 240 the development of the First Nations disability workforce;Footnote 241 review of the Social, Community, Home Care and Disability Services Industry AwardFootnote 242 and a new registration and audit process for workers.Footnote 243
F. Problems with Oversight and Complaints Processes
Systemic problems involving poor oversight and complaints processes were found to be driving unsatisfactory outcomes in the mental health, disability and aged care sectors. All three commissions noted that a lack of oversight and accountability begins with a lack of leadership and poor governance.Footnote 244 The Mental Health Commission noted that ‘system leadership is weak and accountability for how the system is managed is unclear.’Footnote 245 The Aged Care Commission was concerned that many approved providers lack professional knowledge about the delivery of aged care and a tendency to focus on financial risks rather than quality and safety.Footnote 246 That said, Commissioners Pagone and Briggs largely disagreed about the governance of the aged care system. Commissioner Pagone wanted to create a new independent statutory body, the Australian Aged Care Commission to take responsibility for aged care, whereas Commissioner Briggs preferred direct government and ministerial leadership.Footnote 247 The Disability Commission was also concerned that people involved in leadership of service providers had corporate or local government experience, but were not informed about the human rights of persons with disabilities or disability service provision.Footnote 248 Effective leadership was necessary to prevent violence, abuse, neglect and exploitation of persons with disabilities.Footnote 249 The Mental Health Commission and Disability Commissions emphasised the inclusion of persons with lived experience in leadership roles and in shaping the system.Footnote 250 All Commissions pointed out the importance of ATSI organisations as service providers and in providing culturally safe care for ATSI people.Footnote 251
A related issue noted by all the commissions was a lack of transparency and data which prevented tracking of sector performance. The Mental Health Commission noted that limitations to data collection and reporting were a problem for providing high quality care and monitoring safety.Footnote 252 Accurate data collection was important for benchmarking, system improvement and for accountability.Footnote 253 The Aged Care Commission recommended the expansion of the National Aged Care Mandatory Quality Indicator Program to track pressure injuries, physical restraint, unplanned weight loss, medication management, falls and fractures and incidents in home care.Footnote 254 It also proposed the introduction of a star rating system to allow consumers to compare the performance of individual services and thereby increase choice.Footnote 255 In addition, it recommended the introduction of reporting obligations and the creation of the Inspector-General of Aged Care to monitor data collection and analysis.Footnote 256 The Disability Commission reported numerous instances of a lack of data of violence, abuse neglect and exploitation, use of restrictive practices, sterilisation and other basic indicators such as the number of persons with disabilities across different settings such as education.Footnote 257 The Disability Commission recommended greater adult safeguarding data collection and the introduction of reportable conduct schemes.Footnote 258
The Commissions all observed problems with ‘light touch’ regulation and regulators who were overly concerned with processes rather than outcomes. The Mental Health Commission recommended a strong regulatory system and a range of new bodies to be empowered by a new Mental Health and Wellbeing Act to provide oversight over the system and each other, the centrepiece being the new Mental Health and Wellbeing Commission to monitor system-wide quality and safety and complaint-handling to hold the Victorian government to account.Footnote 259 The Mental Health Commission emphasised the importance of accountability mechanisms and a Mental Health and Wellbeing Outcomes framework to build trust in the system and close the gap between the law and practice.Footnote 260 The Aged Care Commission noted that ‘the systemic failure we have identified in the aged care system raise concerns about the capability, leadership and culture of the regulator.’Footnote 261 The Aged Care Commission recommended the creation of an Inspector General of Aged Care to monitor the performance of the System Governor and other regulatorsFootnote 262 and a greater range of powers for the quality regulator, including civil penalties and compensation for older persons for breaches of civil penalty provisions.Footnote 263 The Disability Commission made a raft of recommendations to increase regulation to prevent violence, abuse, neglect and exploitation of persons with disability, the anchor of which was a new permanent National Disability Commission which would also monitor the implementation of a new Disability Rights Act.Footnote 264 The Disability Commission was concerned that the current NDIS reportable incidents scheme was unworkable with 1,438,931 notifications in the year 2021–2022 and recommended streamlining reportable incidents and improved internal procedures.Footnote 265
The Aged Care and Disability Commissions also noted the importance of registration and accreditation schemes for private service providers and making such schemes accessible.Footnote 266 The Disability Commission argued that the benefits of NDIS registration in protecting persons with disability from poor and abusive services outweighed the possible restriction on choice if some providers were to cease providing services because of the NDIS registration requirements.Footnote 267 The Aged Care and Disability Commissions also noted the importance of death reporting and acting on coronial assessments in order to strengthen accountability and improve systems.Footnote 268
All three Commissions reported widespread dissatisfaction with complaints processes. While there was already a complaints body in the Victorian mental health system, the Mental Health Commission recommended that function be given to the new Mental Health and Wellbeing Commission to receive and investigate complaints about services and to require services to make changes.Footnote 269 The Aged Care Commission reported that there was a lack of transparency with complaints processes and that people were given the run around when they tried to get a satisfactory response.Footnote 270 The Aged Care Commission recommended that greater weight be attached to the experience of people receiving aged careFootnote 271 and improved complaints management lead by a Complaints Commissioner in the Quality Regulator with oversight by the Inspector-General.Footnote 272 The Disability Commission was concerned that the existing complaints system was too complex for persons with disability to participate in without support and recommended the creation of additional complaints pathways.Footnote 273 It noted the importance of community visitor schemes in which visitors enter facilities without warning to do inspections and talk to residents as providing an important safeguard which should be recognised by the NDIS and introduced in all states and territories for resolving complaints.Footnote 274 It also recommended the creation of a new complaints mechanism co-designed with persons with disabilities and ‘one-stop’ shop for complaints reporting, referral and support.Footnote 275
All three Commissions noted the importance of consumer access to advocacy services to support people to make complaints and hold the system to account.Footnote 276
G. Chronic Underfunding
Not surprisingly, chronic underfunding exacerbates many of the systemic problems already noted in the care and support sectors and was an issue that cut across all three Commissions.
The Mental Health Commission noted:
Investment in the system is inadequate. Historically, Victoria’s monetary investment in mental health has been low compared with many other parts of Australia…. Investment in mental health per capita is also poor compared with physical health…. Money is one measure, but of great concern is the profound human toll that accompanies a broken system.Footnote 277
The Aged Care Commission also made similar observations:
Funding for aged care is insufficient, insecure, and subject to the fiscal priorities of the Australian Government of the day. For several decades, one of the priorities for governments dealing with the aged care system has been to restrain the growth in aged care expenditure in light of demographic changes. This priority has been pursued irrespective of the level of need for care, and without sufficient regard to whether the funding is adequate to deliver high quality and safe care….Footnote 278
The Disability Commission noted funding difficulties across different sectors. For instance, the in the education system inadequate funding may result in students being denied enrolment or in not getting the adjustments they need.Footnote 279 Another example is the lack of social housing and difficulties in obtaining modifications needed by persons with disabilities and the need to increase supply and review the adequacy of funding for homelessness.Footnote 280 Further funding is also needed in the criminal justice system for diversion programs for people with cognitive disabilities that might otherwise be given a custodial sentence.Footnote 281 The Disability Commission also commissioned a report by Taylor Fry, which found that an additional $16.6 million was required for additional disability advocacy and $20.3 million for the NDIS appeals program.Footnote 282
Both the Aged Care and Mental Health Commissions recognised the difficulty of aged care and mental health funding coming from consolidated revenue and being subject to annual budget cycles and changing needs of the government of the day. Both recommended dedicated government funding for the aged care and mental health systems (although the Aged Care Commission also developed some complex formulas for what older people should be contributing to their own care). The Mental Health Commission recommended a new levy or tax for the provision of operational funding for mental health services and a dedicated capital investment fund for the mental health system to increase investment and supplement the current level of Victoria’s funding commitments.Footnote 283 Similarly, with respect to the Aged Care Commission, in a ‘split’ recommendation, Commissioner Pagone recommended the Productivity Commission review the financing of the aged care system and the creation of an aged care levy,Footnote 284 while Commissioner Briggs recommended a new earmarked aged care improvement levy.Footnote 285
V. ‘Success’ of the Royal Commissions: Government Response To and Implementation of the Royal Commissions so Far
The focus of this article has been on reviewing the three Royal Commissions, what they have identified about the problems with the care and support sector in Australia and what sorts of reforms each of the Commissions recommended to remedy those problems. In summary, it has found that seven common themes arose across reports being: (i) difficulty accessing services and supports; (ii) a lack of choice and control (absence of consumer voice); (iii) negative social attitudes and discrimination; (iv) the overuse of restrictive practices (e.g. seclusion and restraint); (v) an undertrained and underpaid workforce; (vi) problems with oversight and complaints processes; and (vii) chronic under-funding.
It has, however, been some time since the final reports of each of the Commissions have been released, so it is necessary to briefly discuss the extent to which each report has been implemented and has led to actual reform so far. That said, as noted in Part 2 above, the ‘success’ of a Royal Commission is difficult to assess and may require a long timeframe. Further, the final reports of the Aged Care and Mental Health Commissions in 2021 were released earlier than that of the Disability Commission at the end of 2023. It is also important to note that each of the Royal Commissions produced interim reports and special reports on the COVID-19 pandemic and its effects on the aged care, mental health and disability sectors which were received and acted on by government while the commissions were ongoing. At the time of writing the most action on implementing the three Royal Commissions has probably occurred with respect to the Aged Care Commission (where aged care reform was a key election issue for the Albanese government in 2022) followed by the Mental Health and Disability Commissions. I provide a brief description of the reforms below.
A. Aged Care Commission
The Australian Government has sought to implement parts of the Aged Care Commission through several pieces of legislation. The Aged Care Legislation Amendment (Serious Incident Response Scheme and Other Measures) Act 2021 (Cth) introduced the Serious Incident Response Scheme (‘SIRS’) drawing on the NDIS. The Aged Care and Other Legislation Amendment (Royal Commission Response No1) Act 2021 (Cth) introduced the first series of reforms in direct response to Royal Commission recommendations, including enhanced requirements regarding restrictive practices in residential aged care facilities. The Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022 (Cth) implemented further reforms including updates to the funding model for residential aged care, star ratings and governance standards for providers, ‘banning orders’ for workers who have contravened the Act and information sharing. The Aged Care Amendment (Implementing Care Reform) Act 2022 banned exit fees, capped administrative charges, required greater transparency on providers spending on different aspects of care (e.g. food) and required a registered nurse to be on-site 24 hours per day, 7 days per week. In 2023, the Interim Inspector-General of Aged Care found that the government had fully implemented only seven of the Aged Care Commission’s recommendations compared with the government’s claims that 21 recommendations had been implemented.Footnote 286 Finally, the new Aged Care Act 2024 (Cth) passed on 24 November 2024 (coming into effect on 1 July 2025) which the government claims has directly enacted a further 58 of the 148 recommendations of the Aged Care Commission and consolidated those already enacted by other legislation.Footnote 287 The new Aged Care Act 2024 (Cth) includes the Government’s response to the Aged Care Taskforce recommendations, supports higher levels of care in the home, strengthens the Aged Care Quality Standards, improves governance, gives stronger powers to the regulator and includes a statement of rights for older people. In essence, the reforms will shift the focus in aged care from the regulation of providers to the rights of consumers.
B. Mental Health Commission
Notably, the Victorian government under former Premier Dan Andrews committed to implement all of the Mental Health Commission’s recommendations from the outset of the commission.Footnote 288 Initially, the government made a strong start to implementing the recommendations with an investment of $5 billion for structural reformFootnote 289 and the enactment of the Mental Health and Wellbeing Act 2022 (Vic), which came into effect on 1 September 2023. The new Act implemented many of the Mental Health Commission’s recommendations including expanding the operation of mental health legislation to community-based mental health and wellbeing providers, the giving of ‘proper consideration’ to various mental health principles set out in the Act, regulating for the first time chemical restraint and promoting supported decision-making. It also established the new Mental Health and Wellbeing Commission which has oversight of the mental health system. The Victorian government has not yet reformed the compulsory assessment and treatment framework as recommended by the commission. The effectiveness of the new Act will depend upon extra-legislative operational and funding arrangements which will determine whether the legislation is sufficient to make the changes required and the extent to which the funding of new community-based services will achieve their aims.Footnote 290
The Victorian Government has also implemented a mental health and wellbeing payroll surcharge commencing 1 January 2022 on all businesses with a payroll over $10 million per year to raise dedicated funding for the mental health system, as recommended by the Mental Health Commission.Footnote 291 The levy is reported to have raised over $1 billion per year for mental health, although there is some doubt as to how that money has been spent.Footnote 292
However, there are concerns from commentators including peak bodies, media sources and even the Mental Health and Wellbeing Commissioners that the Victorian government, now led by Jacinta Allen, under much financial pressure, has quietly delayed or shelved many of its proposed reforms.Footnote 293 The Opposition claims that implementation of 52 of the 74 recommendations are now overdue.Footnote 294
C. Disability Commission
The Australian Government claims it has primary or shared responsibility for 172 out of the total 222 recommendations. In its initial response, the Australian Government has accepted, or accepted in principle, 130 recommendations, is considering further 36 recommendations, and has rejected 6 recommendations.Footnote 295 None of the split recommendations were accepted.Footnote 296 The primary policy areas where governments have agreed to immediately act are in relation to employment and the development of a new specialist disability employment program and Disability Employment Centre of Excellence, the creation of a Commonwealth individual disability advocacy program, improvements in inclusive education policies and procedures and a new right to equitable access to healthcare.Footnote 297 Nevertheless, the Government’s response to the Disability Commission has been widely considered to be disappointing by the disability community.Footnote 298
VI. Conclusion
Royal Commissions have an important place in the Australian law reform landscape and perform important political, policy-making, investigative and truth-telling functions.
The Mental Health, Aged Care and Disability Commissions are all landmark royal commissions which have taken place in the last five years in the care and support sectors in Australia. The timing of the three commissions reflects pervasive systemic failures within and across each sector in the twenty-first century and the need for significant legal and structural reforms to recognise and implement the human rights of older persons, persons with mental ill-health and disabilities. While the three sectors are often treated in isolation, there is much benefit in considering their intersection and how they respond to similar issues. Given the interconnections between each sector in terms of the provision of care and support, the human rights challenges and workforce and funding issues, it is not unexpected that the three commissions would reveal a number of common and recurring themes about what is wrong with the care and support sectors and how to reform them. This article has identified and explored seven important overlapping themes across the three commissions being: (i) difficulty accessing services and supports; (iv) a lack of choice and control (absence of consumer voice); (iii) negative social attitudes and discrimination; (iv) the overuse of restrictive practices (e.g. seclusion and restraint); (v) an undertrained and underpaid workforce; (vi) problems with oversight and complaints processes; and (vii) chronic under-funding. It also indicates that each sector can learn from each other in terms of the different approaches between reports to similar problems such as the overuse of restrictive practices, regulatory oversight and overcoming negative social attitudes and discrimination. Yet, despite differences between sectors, there is a very similar vision for how such services ought to be delivered and what good aged care, mental health and disability systems look like, taking into account developments in international human rights law. While the full impacts of the royal commissions remain to be seen, many of the recommendations have already been implemented and the royal commissions have generated much academic and public debate. The three Royal Commissions are likely to be a source of inspiration for less ambitious reports, ongoing research, activism, law reform and holding governments to account for many years to come.
Acknowledgements
The author would like to thank her research assistants My Ky Du and Joshua Finn for their assistance, the anonymous referees for their insightful comments and the Federal Law Review editors, editorial committee and production staff for making publication of this paper possible.
Funding statement
This paper was partly funded by a Research Excellence Grant awarded by Melbourne Law School. An earlier version of this paper was presented at the Australiasian Association of Bioethics and Health Law (AABHL) Conference, University of Sydney, 1–4 December 2024 and a Health Law and Ethics Network Seminar, Melbourne Law School, 6 May 2025.
Competing interests
The author has no competing interests or conflicts of interest in relation to this research.
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