Public hearing 33 - Violence, abuse, neglect and deprivation of human rights (a case study) - Day 1

RESUMED 10.03 AM

COMMISSIONER McEWIN:  Good morning. We welcome everyone who is attending this Public hearing in the Royal Commission's Brisbane hearing room. We also welcome everyone who is or will be following the proceedings through the live screen. This is the 33rd Public hearing and the final substantive hearing of the Royal Commission. We commence the hearing with an Acknowledgement of Country, and I invite Commissioner Andrea Mason to make the acknowledgement. 

COMMISSIONER MASON:  Thank you, Chair. We acknowledge Meanjin, Brisbane.  We recognise the country north and south of the Brisbane River as the home of both the Turrbal and Jagera nations. We acknowledge the Turrbal and Jagera nations as the traditional owners and custodians of the lands upon which this Royal Commission is sitting. We acknowledge and pay our deep respect to Elders, past and present, and we acknowledge First Nations young people who one day will take their place as Elders. We extend that respect to all First Nations people and acknowledge their enduring connection to land, sky, seas and waters. We pay our deep respect to First Nations people here today and who are following this Public hearing online on the mainland and on islands, including Tasmania and in the Torres Strait, especially Elders, parents and young people with disability. Thank you, Chair.

COMMISSIONER McEWIN:  Thank you, Commissioner Mason. I am Commissioner Alastair McEwin AM, and I will be presiding at this Public hearing. I am joined in the Brisbane hearing room by Commissioner Andrea Mason OAM and Commissioner John Ryan AM. Counsel Assisting the Royal Commission at the hearing is Ms Kate Eastman AM SC, who appears with Ms Gillian Mahony. They are assisted by the Office of the Solicitor Assisting the Royal Commission. 

I will shortly take appearances. 

Over the next three days, we will focus on the treatment of two young men named Kaleb and Jonathon. I note that these are not their real names. They are brothers. They both have intellectual disability and other disabilities. In May 2020, a family friend alerted the Queensland Ambulance and Queensland Police to the young men's home. When they arrived, they found Kaleb and Jonathon locked in their bedroom unclothed and malnourished. Their father, who was their sole carer, was deceased in the next room. 

This Public hearing will examine the circumstances leading up to the death of Kaleb and Jonathon's father. It will examine whether Kaleb and Jonathon experienced violence, abuse, neglect and the deprivation of human rights in their lives. A human rights approach has been central to the Royal Commission's work. At our opening hearing in September 2019, the Chair of the Royal Commission, the Honourable Ronald Sackville AO KC said our Terms of Reference expressly referred to Australia's obligations under the Convention on the Rights of Persons with Disability, the CRPD.  And he said it means that this Royal Commission must have a rights based focus. We must take as our starting point the rights under international law that Australia is required to recognise and protect for people with disabilities. 

The Chair referred to Article 16 of the CRPD which requires Australia to take all appropriate legislative, administrative, social, educational and other measures to protect people with disability both within and outside the home from all forms of exploitation, violence and abuse. The Chair also referred to the Convention on the Rights of the Child being important for children with disability. Article 23 of that Convention advised that children who have any kind of disability should receive special care and support so that they can live a full and independent life, with an emphasis on dignity and promoting self reliance and facilitating active participation in the community. 

We expect this Public hearing will consider these human rights and also provide the Royal Commission with the opportunity to consider how the Queensland Human Rights Act operates to respect, protect and fulfil the rights of children and young people with disability. We also expect that this hearing will consider many of the other human rights we have considered and examined in this Royal Commission, particularly with respect to systems and policies to enable people with disability to live lives free of violence, abuse, neglect and exploitation. 

I shall now take appearances. 

MS EASTMAN:  Thank you, Chair, I appear as Counsel Assisting for this Public hearing with Ms Mahony.

COMMISSIONER McEWIN:  Thank you. 

MS McMILLAN:  Good morning, commissioners, my name's McMillan,  initials KC, Kings Counsel, and I appear with Ms Amos.

COMMISSIONER McEWIN:  Thank you, Ms McMillan. 

MR ANDERSON:  Good morning, Chair, Commissioners.  My name is Anderson.  I appear with Ms Munro.  We are instructed by Gilbert + Tobin to appear for the Commonwealth.

COMMISSIONER McEWIN:  Thank you, Mr Anderson.  I will now ask Ms Eastman to make her opening statement. 

MS EASTMAN:  Thank you. Counsel Assisting acknowledge the traditional custodians on the lands on which we're meeting today and across Australia. We pay our respects to First Nations Elders past, present and emerging as well as to all First Nations people following this Public hearing. 

Before I start, Commissioners, I will ask that the content warning be displayed. Commissioners, you will hear about incidents of violence, abuse, neglect and the deprivation of human rights of two young men who live with disability. The description of their treatment and the circumstances in which these two young men were living will be confronting and distressing. The Royal Commission encourages those watching, whether by the web stream or here in person, to be mindful that topics may trigger or cause distress, and we encourage everyone to seek support in that respect. 

Commissioners, let me tell you about Kaleb and Jonathon. This hearing is about them and their life course over 22 years. Kaleb and Jonathon each live with intellectual disability and other disabilities. They both have limited verbal communication and they communicate using sounds and gestures and some speech. Jonathon also lives with Epilepsy and suffers seizures. Their father, Paul Barrett, was for most of their lives their sole carer. 

Early on the morning of 27 May 2020 a friend of Mr Barrett's called Queensland Ambulance Service about Kaleb, Jonathon and their father. When the Emergency Services arrived at the family home, they found Mr Barrett deceased. Kaleb and Jonathon were locked in a room, naked, and there was no bedroom furnishings. Queensland Police also attended the home. They observed faeces on the floor of the spare bedroom and the main bedroom. 

Kaleb and Jonathon's bedroom was completely bare, with the doorhandles removed. Kaleb was then 19 years old and Jonathon was 17 years old. Commissioners, the photo is going to come up on the screen now. I warn those following the hearing that these photos may be confronting. Commissioners, the photos which are on the screen are of the family home on 28 May 2020, the day after Kaleb and Jonathon were found. The first photo, which is on the screen now, is of the father's bedroom. It shows a stained mattress, without bedding, and there is a pillow. There is a large curtain on the far wall and a blanket on the floor. There are various food and bottle containers on bedside drawers and at the base of the mattress. 

The second photo is of Kaleb and Jonathon's bedroom. You cannot see the whole room, but what is in the photo is a bare room without furnishings. There is no curtain against the window and there are various marks on the walls. There are what looks like used nappies on the floor. On the day Kaleb and Jonathon were found, they were taken to hospital. They were diagnosed with severe malnutrition and a condition called kwashiorkor. This is a disease that's characterised by severe protein deficiency. It's a disease that is very rare in developed countries like Australia. It is a disease mostly found in developing countries with high rates of poverty and food scarcity. Poor sanitary conditions can also help set the stage for this form of malnutrition. And kwashiorkor can affect people of all ages but it's most common in children, especially between the age of three to five years. 

Kaleb and Jonathon remained in hospital for two weeks. On 1 June 2020, the Queensland Attorney General requested the Queensland Family and Child Commission to commence a systems review into the policies and practices of relevant Queensland agencies who were involved with Kaleb and Jonathon, or those others who could have played a role in supporting the family. The review was to consider whether the performance and responses of those agencies in the lead up to the father's death were timely and effective, as well as identifying any gaps in service delivery. 

On 14 January 2021, the Queensland Family and Child Commission provided its report to the Queensland Attorney General. It reported on several systems issues that would benefit from further consideration by the responsible agencies, namely, the need to meet the safety and wellbeing of the needs of vulnerable children with disability during a health pandemic, strengthening pathways and guidelines to assist vulnerable families to engage with the NDIS, and overseeing and responding to children's engagement, or lack thereof, with supports funded under their NDIS plan. 

Commissioners, you will hear from Mr Luke Twyford, the Principal Commissioner of the Queensland Family and Child Commission tomorrow about the review and the recommendations. 

Back to 2020:  on 11 June 2020, the CEO of the National Disability Insurance Agency, the NDIA, established a review of all relevant matters, including actions and interactions relating to Kaleb and Jonathon's transfer into and time as NDIS participants. At the time of their father's death, Kaleb was an NDIS participant, Jonathon was not. Paul Barrett was worried, "he would lose his carer's pension if he accessed NDIS funding for Jonathon."  Jonathon is now an NDIS participant. 

The NDIA review was conducted between August 2020 and November 2020, and on 30 April 2021 the NDIA review report was finalised. The NDIA found that there were significant variances in the supports funded in Kaleb's three plans, largely due to his father's wishes. The review found the NDIA's processes did not appropriately support the staff to consider the appointment of a nominee for Kaleb where he had not requested one, whether the father's continued appointment as Kaleb's nominee remained appropriate, or how to manage the father's refusal to engage supports for Kaleb. 

The NDIA acknowledge Mr Barrett experienced barriers lodging a valid access request for Jonathon, and additional support may have been beneficial. Issues were identified in relation to the NDIA's plan implementation, monitoring processes and procedures, and record keeping by the agency staff. While the NDIA staff worked efficiently and with the best of intentions to put in place NDIS plans for Kaleb and Jonathon, after the death of their father, the review found that there was a lack of rigour with respect to identifying and engaging appropriately with authorised representatives. 

Commissioners, you will hear from NDIA representatives Dr Sam Bennett and Mr Desmond Lee tomorrow about the actions taken by the NDIA following the review and the responsibilities of the NDIA in ensuring a child or young person's wishes are ascertained and the child's best interests are of paramount consideration in actions and decision making. 

So I'll turn now to the approach that was taken for this case study. This case study looks back to examine what happened to Kaleb and Jonathon. Over the life of the Royal Commission, you have looked through the window of the lives of many people with disability at specific points or periods in time in their lives. You have examined specific incidents of violence and abuse. You have also, Commissioners, examined systemic barriers experienced by people with disability. You have considered the effects on people's lives in segregated settings and the polished pathway. 

To some extent, this case study provides the opportunity to take a life course approach, to examine Kaleb and Jonathon's experiences from infancy, childhood, adolescence and now as young men. Each person's life course is unique. However, patterns can be observed across groups of people who share common circumstances or experiences. The life course approach considers the timing of these influences, events or experiences in a person's life and how this affects them over the course of their life. Experiences that occur early in life or during key transition periods can have particularly significant impacts on life outcomes. 

The life course approach takes a long term view of people's life stories which reflect changing biological, social, environmental and historical influences. It can show how members of different generations are affected, as well as the intergenerational impact of these events over time. This approach assists in understanding how different influences affect the outcomes for individuals or groups over different stages of their lives. It helps in understanding the life pathways or trajectories of individuals or groups, based on the impact of the biological, social, cultural and environmental influences. 

The life course approach recognises that all human lives are connected and interdependent. Each person's life outcomes are directly affected by different social networks and institutions and how they react within them. However, the approach also emphasises the inherent capacity of individuals to make decisions and choices about their own lives, including how to meet their needs and to reach their goals. For people with disability, this recognises their agency can be enhanced or restricted by the institutions and organisations they react with, community attitudes and certain policies and laws. 

A life course approach helps identify the risk factors for or the drivers of violence against and abuse, neglect and exploitation of people with disability. It does this by identifying life influences that can increase the risk of people with disability experiencing maltreatment across the life course. Life influences are direct or indirect experiences or events that affect life pathways, trajectories and the outcomes of individuals. They can have positive or negative impacts on a person's life outcomes, and a person's life influences may include personal characteristics such as their gender, race, culture, socio economic background. It may include their relationships, their interactions with institutions, services and supports, and laws, policies and broader community attitudes. 

This case study takes a life course approach. And I will show you on the screen now a diagram that explains the life course approach. This diagram shows Kaleb and Jonathon at the centre and then the layers or systems that worked around them, starting immediately with their parents and then moving to the broader community, being people who interacted with Kaleb and Jonathon at their schools and in their neighbourhood, the final layer being various Queensland and Commonwealth agencies that were involved in their lives at different times. 

As the final substantive hearing of the Royal Commission, we have also reflected on past hearings and the information the Royal Commission has received. In this final substantive hearing of the Royal Commission, we wanted to draw on what you've heard over the past four years to illustrate some of those recurring themes through Kaleb and Jonathon's experiences. This hearing is intended to draw on the following themes from previous hearings:  themes concerning domestic and family violence, themes concerning safe and suitable accommodation and homes, access to health care in all stages of life, early childhood education and special schools, accessing the NDIS and access to supports and services, communication and behaviour, the importance of independent advocates, attitudes and ableism, child and adult safeguarding, the importance of effective reviews and investigations, guardianship and supported decision making, human rights protections, the impact of COVID 19 and child protections. 

Commissioners, you recall at Public hearing 8 concerning the experiences of First Nations people with disability and their families in contact with the Child Protection system, held here in Brisbane from 23 to 27 November 2020.  At that hearing, you heard in some detail about the Queensland child protection laws, practices and policies, and some of those policies were materially relevant to Kaleb and Jonathon's lives, as are the themes that we have explored over the course of your hearings for four years. 

This case study, by looking back has been prepared by the Royal Commission reviewing and examining many thousands of documents produced by Queensland departments and agencies, covering the whole of Kaleb and Jonathon's lives since 2000. We have worked with the Queensland legal representatives to agree on the facts that will be relevant to this case study. We have prepared a document with agreed facts set out with key events and incidents concerning Kaleb and Jonathon's lives. We acknowledge the Queensland legal representatives agree that the facts, as far as they relate to, are agreed only at this stage in, principle, and Queensland reserves the opportunity to make further comments and submissions in relation to the agreed facts after Counsel Assisting's submissions have been provided for this hearing. 

We acknowledge the breadth and the depth of the work that has been involved in preparing this hearing, and we acknowledge Queensland's position. We thank their legal representatives for their cooperation in preparing for this hearing.

Commissioners, Kaleb and Jonathon will not be giving evidence this week, but in the preparation of the hearing we had the opportunity to meet them and visit them at their homes. I have stressed and I will stress that they are at the centre of this hearing, so you will have the opportunity to hear from one of their friends, Lisa Hair, about how she got to know the family and the time she spent with Kaleb and Jonathon. 

The documents produced by various Queensland departments and agencies reveal that both Kaleb and Jonathon did not have the best start in their lives. Kaleb was born in 2000 and as the agreed facts note, his mother had a previous history of engagement with Child Protection relating to her previous children. At the time of Kaleb's birth, she lived with an intellectual impairment, anxiety and a depressive illness, and at the time of Kaleb's birth, his parents' accommodation was described as "questionable and unstable."  Kaleb was immediately identified as a child at risk of neglect. 

Support was offered to the parents through the residential early parenting service, but when Kaleb was about three months old, he was removed from his parents and placed in foster care for about two years. Queensland Department of Child Safety worked with the parents over that two year period that Kaleb was in foster care. It was during this time Kaleb was diagnosed with significant global developmental delay, and at the time the records show that he was receiving appropriate therapy support. 

In September '22, Kaleb was returned   sorry, September 2002 Kaleb was returned to live with his father. On the day of Kaleb's return, his father called a Child Safety Officer, asking them to pick up Kaleb. When the Child Safety Officer attended, Mr Barrett as intoxicated and he said the mother had left him. Kaleb was moved to a new location. 

In November 2002, the mother, who was then pregnant with Jonathon, attended hospital and waited in the maternity outpatients section with Kaleb for over four hours. Mr Barrett later arrived intoxicated, and his behaviour was described as "a highly erratic manner."  When the security arrived, they tried to contain the situation. Mr Barrett began throwing punches and pushing at security. He began yelling and screaming. He was arrested and charged with behaving in a disorderly manner in a public place, and on 5 December 2002 he pleaded guilty to the charge and was convicted. 

In February 2003, a member of the community contacted the Department of Child Safety with concerns about the neglect of Kaleb. The notification referred to the following:  first, his father's alleged consumption of alcohol and drugs; secondly, the physical presentation and hygiene of Kaleb; thirdly, Kaleb's care; and fourth, the hygiene of the home. 

In response to the notification on 14 February 2003, a Child Safety Officer assessed Kaleb was, and I quote:

    "...not deemed at immediate risk of harm but was..." 

And I quote:

    "...significant risk of future harm."

The Child Safety Officer wrote at the notification:

    "Priority response 1 for 24 hours."

In March 2003, Jonathon was born. Jonathon was later diagnosed with global developmental delay. By 2004, Paul Barrett was the sole carer of the two boys. The agreed facts then trace the boys' engagement with Child Safety, the health system, starting school and their attendance at a special school. Other than a seven day period between 29 May and 4 June 2010 when Paul Barrett consented to the removal of Kaleb, then turning 10, and Jonathon, then seven years old, they otherwise remained in his care from 4 June 2020 onwards. They were dependent on him. 

Queensland government agencies had extensive engagement with the family, and over the period 1 June 2000 to 27 May 2020, the family had numerous interactions with Queensland government agencies. There was 35 occasions when Queensland received reports of or observed concerns for the children's diet, nutrition and access to food. There were 33 occasions when Queensland received reports or concerns observed about the father's drinking. There were 30 occasions when concerns about neglect were raised with or recorded by Queensland. 

There were 26 occasions when Queensland received reports of or observed concerns for Kaleb and/or Jonathon's hygiene. There were 21 occasions when Queensland received reports of or observed concerns about the father's aggressive or threatening behaviour. There are 21 occasions when Queensland received reports of or observed concerns about the father refusing assistance in relation to Kaleb and/or Jonathon's care. There were 19 child protection notifications made to the Department of Child Safety. 

There were seven occasions when Queensland received reports or information alleging family violence, either towards Kaleb, Jonathon, the mother and/or a partner of the father. There were six SCAN meetings, "SCAN" referring to suspected child abuse and neglect. There were six occasions when Queensland received reports of unexplained injuries to Kaleb and/or Jonathon. And there were three occasions when the Department of Child Safety did a family risk evaluation and evaluated the family's risk as being "very high" and three occasions where it assessed the family's risk as being high. 

Queensland through its departments and agencies, were aware of the many risk factors exposing Kaleb and Jonathon to violence, abuse, neglect and a deprivation of their human rights. The agreed facts include reports and records of the following in relation to Kaleb and Jonathon:  poor and inadequate living conditions; poor personal hygiene and toileting; poor diet or lack of food; poor physical condition or signs of harm or injury; lack of clothes or inappropriate clothing; lack of activities; lack of access to supports and services for their disabilities; lack of supervision; self harming behaviour; lack of engagement and opportunities to engage with the broader community; and a lack of independent advocates for Kaleb and/or Jonathon. 

Queensland through its department and agencies were aware of Paul Barrett's behaviours as reported and these included the following:  lacking skill or motivation to care for Kaleb and/or Jonathon; failing to supervise or inadequately supervising Kaleb and/or Jonathon; failing to ensure Kaleb and/or Jonathon attended scheduled medical appointments, including with paediatric specialists in relation to their development and with respect to Jonathon's seizures; resisting or refusing assistance from government departments, agencies and support services to support the care of Kaleb and Jonathon; misleading government officers, who on occasions accepted the father's assertions without verification; the father's behaviour generally and the aggression and threats to people who thought to support Kaleb and/or Jonathon; his unstable interpersonal relationships and alcohol consumption. 

Commissioners, in the course of preparing this hearing, we also examined Mr Barrett's financial records for a four year period prior to his death. He was unemployed and relied on government support. And, Commissioners, you have in your materials an aide mémoire that sets out the spending pattern which reveal a very high level of cash withdrawal, spending on alcohol, cigarettes and gambling. 

Commissioners, our assessment from the information reveals Queensland through its departments and agencies inappropriately focused on the efforts perceive to be made by the father and the circumstances of the father. There was no primacy given to the neglect, abuse and deprivation of rights that Kaleb and Jonathon were subjected to. Their neglect was excused with statements such as:

    "The father is doing his very best."

And the father was prioritised over Kaleb and Jonathon's needs. The neglect of Kaleb and Jonathon was often attributed to their disability. For example, it was reported Kaleb and Jonathon, and I quote:

    "...do not like wearing shoes, but this is due to their disability and dislike for shoes."

And to this extent, Queensland through its departments and agencies viewed Kaleb and Jonathon through a lens of deficit and disability and not through a lens of what they could achieve, and you will see from some current photos of Kaleb and Jonathon   and they are now young men who wear shoes and clothes, and engage beyond the locked room in which they were found. 

One of the issue as rising in this case study is why Kaleb and Jonathon's interests, needs and rights were not the paramount consideration. 

So, Commissioners, we have received some statements and additional documents from Queensland yesterday and we want to ensure that you have time to read these documents before you hear from the witnesses. So, in terms of the programming for this Public hearing, you will hear from witnesses today and tomorrow in the morning, and then we propose that you consider adjourning after hearing from Dr Bennett and Mr Lee tomorrow to give you the opportunity to read through the witness statements provided by Queensland, and I think there may be a few more coming today. Then on Wednesday, you will have the opportunity to hear from the Queensland Government departments and their agencies, from Dr Meegan Crawford, Chief Practitioner, the Department of Children, Youth Justice and Multicultural Affairs. Dr Crawford has previously given evidence to the Royal Commission at Public hearing 8 concerning the Queensland child protection system. 

You will also hear from Ms Hayley Stevenson, the Acting Assistant Director General, Disability, Inclusion and Student Services with the Department of Education. Also, you will hear from Ms Chantal Raine from the Department of Communities, Housing and Digital Economy. Ms Michelle Bullen from the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships will also give evidence, and the other witnesses we will let you know when we receive the statements. 

The next is the looking forward. This case study will also look forward to examine what has happened and whether the Queensland's relevant laws and policies are equipped to ensure that the type of violence, abuse, neglect and deprivation of human rights that was experienced by Kaleb and Jonathon will not occur again. You will hear today from Kaleb and Jonathon's current service provider about their current accommodation, the services and supports they receive, their activities and their plans for the future. Alexis, which is a pseudonym, and her support team at Service Provider A, also a pseudonym, have supported Kaleb and Jonathon following their father's death, and Alexis will tell you about their current circumstances. 

Alexis has provided some very recent photos of Kaleb and Jonathon and, Commissioners, the photographs, which are presently on the screen, are of Kaleb and Jonathon this year. One of the young men wears a clean grey singlet with black shorts and sandshoes, and the other young man wears a clean white T shirt, blue shorts and sandshoes. They are both outdoors in a large park with the tree tops in the background   sorry, trees in the backdrop. It's a sunny day. The sky is blue. 

Commissioners, coming back to the circumstances in 2020, on 31 March 2020, QCAT appointed a Public Guardian for Kaleb and the Public Guardian makes decisions for Kaleb. Ms Smith will tell you about how her office has applied a human rights approach when making decisions for Kaleb and Jonathon. The Public Guardian will also tell you about the circumstances in which Kaleb's guardianship was appointed, and she will also explain the circumstances in which she became the Guardian for Jonathon as well. The Public Trustee was also appointed to administer Kaleb's and Jonathon's financial affairs. 

And then finally today, you will hear from the Queensland Human Rights Commissioner Mr Scott McDougall about the operation of the Human Rights Act in Queensland, which commenced in January 2020.  The obligations of public authorities to make decisions and act consistently with human rights is a feature of the Queensland Human Rights Act. 

Now, while this Act was only in operation for a short period covering this case study, we want to ask Mr McDougall about what changes have occurred in Queensland in relation to public entities acting consistently with human rights in decision making. 

So, Commissioners, for this finding, we will not ask the Royal Commission to make any adverse findings about any particular individual. Indeed, many individuals are not named by their names and cannot be identified. We will refer to them for the most part by reference to their particular position.  But after hearing all the evidence, we will ask the Royal Commission to consider making findings directed to three areas with respect to Queensland. 

Commissioners, Queensland's records which form the basis of the agreed facts, should allow you to make the following findings directed to Queensland. First, we will submit it is open to you to find Kaleb and Jonathon experienced violence, abuse, neglect and the deprivation of their rights while in their father's care between 1 June 2000 and 27 May 2020. Secondly, we will submit that the violence, abuse, neglect and deprivation of human rights Kaleb and Jonathon experienced was preventable. There is nothing about Kaleb or Jonathon's age, disability or their personal circumstances that made it inevitable that they should individually or together experience violence, abuse, neglect or a deprivation of their human rights. 

Queensland agencies and departments were aware of the risk factors from June 2000. Queensland was on notice of the risk of Kaleb experiencing abuse and neglect. When Jonathon was born in March 2003, the risk of Kaleb and Jonathon experiencing abuse and neglect only increased. 

Third, we will submit that having regard to the powers, responsibilities and actions of the Queensland departments and agencies that engaged with the family, whether those Queensland departments and agencies could or should have acted to prevent the violence, abuse, neglect and the deprivation of their human rights. Commissioners, we may invite you to make specific findings in relation to particular departments and agencies, and this is why it’s important that we have the opportunity to carefully consider the statements received from Queensland over the past day or so. 

Commissioners, before we break, may I remind everyone following this proceedings, be it in the room or on the web stream, that there are provisions in the Royal Commission Act that have a very clear object of protecting witnesses who give evidence before the Royal Commission, in particular I want to draw attention to section 6M of that Act which provides that:

    "Any person who uses, causes or inflicts any violence, punishment, damage, loss or disadvantage to any person on account of a person having given evidence or information to the Royal Commission commits an offence."

Commissioners, throughout this hearing, we will refer to the two young men which are the focus of this hearing by their pseudonyms, Kaleb or Jonathon. Pseudonyms also apply to Alexis and Kaleb and Jonathon's current NDIS service provider which we will call Service Provider A. The Royal Commission has made directions prohibiting the publication of their names and identifying information in relation to this hearing, and if anyone has any concerns or wishes any clarification about the nature and the operation of these non publication orders, they should contact me or my colleagues in the Office of the Solicitor assisting. Thank you, Commissioners. Commissioner McEwin, I think we were proposing to take a short break of 15, maybe 20 minutes, before we resume.

COMMISSIONER McEWIN:  Thank you, Ms Eastman. So, it's now 10 to 11. Shall we come back at 10 past 11? 

MS EASTMAN:  Thank you. Thank you, Commissioner.

COMMISSIONER McEWIN:  Thank you. We will come back at 10 past 11.

ADJOURNED 10.48 AM 

RESUMED 11.27 AM.

COMMISSIONER McEWIN:     

MS EASTMAN:     next. Our first witness for this hearing is Lisa Hair and, Commissioners, you have a statement provided by Ms Hair dated 20 April 2023, and Ms Hair is going to take an oath.

<LISA HAIR, CALLED

COMMISSIONER McEWIN:  Thank you, Ms Eastman. Before we do the oath for Ms Hair, I just wanted to explain who we are. Firstly, thank you very much for coming to the Royal Commission. We're very grateful for you coming. I'm Commissioner McEwin, this is Commissioner Mason and Commissioner Ryan. So, again, we appreciate you coming. If you could just follow the instructions from the associate who will read the oath. Thank you. 

THE ASSOCIATE:  I will read you the oath. At the end please say, "Yes", or, "I do."  Do you swear by almighty God which the evidence you shall give will be the truth, the whole truth and nothing but the truth. 

MS HAIR:  Yes.

<LISA HAIR, SWORN

COMMISSIONER McEWIN:  Thank you.  Ms Eastman will now ask you some questions. Thank you, Ms Eastman. 

<EXAMINATION BY MS EASTMAN SC 

MS EASTMAN:  Thank you, Commissioner McEwin. Welcome, Ms Hair. Take a moment. I just wanted to start by confirming that you are Lisa Hair?

MS HAIR:  Yes. 

MS EASTMAN:  And you provided your address to the Royal Commission?

MS HAIR:  Yes. 

MS EASTMAN:  And you made a statement which is dated 20 April 2023?

MS HAIR:  Yes. 

MS EASTMAN:  And you've got a copy of the statement with you?

MS HAIR:  Yes. 

MS EASTMAN:  And are the things that you said in your statement all true and correct? 

MS HAIR:  Yes. 

MS EASTMAN:  I want to ask you some questions about the matters in your statement, and perhaps for parts of your evidence, we might even read directly from your statement. Before we do that, some of the information you've provided to the Royal Commission in your statement might be very distressing for people listening to the evidence, and I know it's also matters that have been very personally distressing to you from   at different times. So, if at any stage you feel you need to have a break or you just want a moment, please let us know. 

MS HAIR:  Yes. 

MS EASTMAN:  Okay. We're ready to start?

MS HAIR:  Yes. 

MS EASTMAN:  So I want to ask you about your time as the next door neighbour for Kaleb and Jonathon. So, we're focusing on that period of time. And you lived in the house next door?

MS HAIR:  Yes. 

MS EASTMAN:  And you've lived in that house now for many years; is that right? 

MS HAIR:  Yes. 

MS EASTMAN:  And in the statement, you talk about your initial impressions when you first came to live in the house and you saw the next-door house.  And when you first moved in, you thought that the next-door house   if I call it the family home, is that helpful   looked pretty normal from the outside. There was a boat in the front and a chicken coop out the back.  And the outside of that family home was what you've described as a little bit funky. What do you mean by that?

MS HAIR:  Dirty and messy. 

MS EASTMAN:  So dirty and messy? 

MS HAIR:  Mmm. 

MS EASTMAN:  And you noticed that there was a blanket hanging downstairs? 

MS HAIR:  Yes. Yes. 

MS EASTMAN:  And did that   the fact of the blanket sort of cause you to be thinking about anything? 

MS HAIR:  It just looked like it was hiding stuff under the house. 

MS EASTMAN:  And one of the first things you noticed about your new neighbours was the noise coming from the house? 

MS HAIR:  Yeah, the boys. 

MS EASTMAN:  And you could often hear two people who you now know as Jonathon and Kaleb making noises, but their noises didn't sound like there was anything wrong or they were in pain; is that right? 

MS HAIR:  Yeah. Yeah. 

MS EASTMAN:  So you heard your new neighbours, but you also saw Jonathon and Kaleb outside in their yard from time to time? 

MS HAIR:  Yeah. 

MS EASTMAN:  So I'm just looking at paragraph 6 of your statement.  And what can you tell the Royal Commissioners about when you first saw them outside in their yard and it was the early stages before you got to know them, but you saw them?

MS HAIR:  Well, I have a 10 year old son so they looked about the same age, but they were just wearing nappies.  That's   and they   I could see that they were at least autistic or had some learning development issues. 

MS EASTMAN:  So, when you first saw them in   in the yard, you assumed that each of them were about the same age as your son, maybe about 10 years old? 

MS HAIR:  Yes. 

MS EASTMAN:  And did you later find out how old they actually were? 

MS HAIR:  Yeah, about 17. 

MS EASTMAN:  You were a little bit surprised, weren't you, when you found out how old they were?

MS HAIR:  Absolutely. Yeah. Yeah. 

MS EASTMAN:  I think you could tell just from watching them that you assumed they might be developmentally delayed. Did you try to have a contact with them or talk to them or do anything to communicate with them?  What did you do?

MS HAIR:  Yes, just from afar, like, put a bubble machine on the back verandah and let the bubbles   

MS EASTMAN:  What do you mean by a bubble machine?  Tell me how that works. 

MS HAIR:  Like, it blows the bubbles out, lots of them, and just let the wind take them across so they could catch them and play with them. And Jonathon loved that.  He loved that a lot. And waving to them and   yeah. 

MS EASTMAN:  So, you just made that contact by gestures to them?

MS HAIR:  Yeah. 

MS EASTMAN:  And sharing the bubble machine with them? Then over time   that might have been a few months   you then had a conversation with Kaleb and Jonathon's   the person who you now know to be their father.  And that first conversation was that their father called out from across the fence, and he asked you if you could pick up McDonald's for him? Is that right?

MS HAIR:  Yes.

MS EASTMAN:  And you didn't have a car at the time? 

MS HAIR:  No. 

MS EASTMAN:  And he offered you let you use his car; is that right? 

MS HAIR:  Yes, because he does a licence so I could drive down to McDonald's. 

MS EASTMAN:  So he didn't have a licence but had a car. 

MS HAIR:  Yes.  Yes. 

MS EASTMAN:  You had a licence but didn't have a car. 

MS HAIR:  Yes. 

MS EASTMAN:  And so you were happy to use his car to go and pick up some McDonald's; is that right? 

MS HAIR:  Yes. 

MS EASTMAN:  After that, you and Kaleb and Jonathon's father got to talk to each other over the fence from time to time. 

MS HAIR:  Yes. Yes.

MS EASTMAN:  I want to come back to how you became friends and a good neighbour to Kaleb and Jonathon. So, can I ask you some questions about that? 

MS HAIR:  Yes. 

MS EASTMAN:  You got to know them and you also got to know that they could only say a few words, and I think that description, nonverbal, has been used to describe them. So, you worked out a way of communicating with each of   and they're teenagers at this stage, aren't they?

MS HAIR:  Yes. 

MS EASTMAN:  So each of the teenagers. How did you get Jonathon's attention? 

MS HAIR:  Tapping.  Hand tapping.  He would always come up and I would put my hands up like that and just tap. And you just carry on conversation while he's tapping. 

MS EASTMAN:  Do you know whether he used any sign language or had learnt any sign language?

MS HAIR:  Yes. 

MS EASTMAN:  Do you remember his father talking about that?

MS HAIR:  Yes.  Paul said he knew sign language.  I think this was "more"   for "more"  

MS EASTMAN:  You just gestured   for people who can't see, you're just gesturing on your chin; is that right? 

MS HAIR:  Yes. 

MS EASTMAN:  So, what did Jonathon's father tell you about using sign language?

MS HAIR:  Just that he knew how to use sign language. I didn't know any, only that   the one thing for "more", and yeah. 

MS EASTMAN:  Did you ever see Jonathon's father use sign language?

MS HAIR:  No. 

MS EASTMAN:  To communicate with Jonathon or Kaleb? 

MS HAIR:  No. 

MS EASTMAN:  Let me ask you about communication and how you got to know Kaleb. What were the circumstances in which you were able to communicate with him?

MS HAIR:  Kaleb loved the chickens. There were chickens, and he loved the chickens and he could say "bock bock bock" for the chickens, "think" for a drink. Just always   I just used the same words that he used. 

MS EASTMAN:  I know there were a couple of times where he came over to your house, and I think   and you talk about this later on in your statement, that he stayed overnight. But when he did come over to your house at one time, you thought about how were you going to communicate with him and make him feel comfortable in your house. And so you popped him up on the sofa, and what did you do for him when he visited on that time?

MS HAIR:  I put chicken videos on the computer, and he just loved it.  He just sat there and   just anything with chickens in it. And he sat there so I could do the dishes and I just stayed in the room. 

MS EASTMAN:  I assume before you met Jonathon and Kaleb that you hadn't yourself had any training or experience in communicating with young people with disability; is that right? 

MS HAIR:  No, I had never met  

MS EASTMAN:  And particularly young people with the nature of Kaleb and Jonathon's disability and their limited communication; is that right? 

MS HAIR:  I've never met anyone with such severe disabilities. 

MS McMILLAN:  Commissioners, can I just have the recording cut for a moment. I just want to point something out.

MS EASTMAN:      just    thank you. Sorry about that. Sorted. So, I think, and   are we back on?  Thank you. So, I think I was asking that before you got to know Jonathon and Kaleb, you hadn't had any experience in looking at alternative forms of communication. 

MS HAIR:  No. 

MS EASTMAN:  But you had to work that out  

MS HAIR:  Yes. 

MS EASTMAN:    for yourself; is that right? 

MS HAIR:  I just mimicked them in my own way with my own characteristics added. 

MS EASTMAN:  So you took a little bit of a leaf from them, because each of them were a little different in terms of their communication style; is that right? 

MS HAIR:  It took Kaleb a long time to trust. He didn't   he just stayed back so I stayed back and then as he began to trust me, then I stepped in a little more with him. 

MS EASTMAN:  And you weren't with them all day every day. 

MS HAIR:  No. 

MS EASTMAN:  You're living next door. 

MS HAIR:  Yes. 

MS EASTMAN:  So sometimes you got to see them and then sometimes there might be a bit of a gap before you saw them again. 

MS HAIR:  Yes. 

MS EASTMAN:  And when you did get to know both of them, you realised   and I'm reading from your statement here, paragraph 11, you say:

    "I realised that they were absolutely pure of heart. Jonathon is very cheeky. If he likes you, you will know because he will get very close to you and smile like his whole being was beaming at you. He is eternally happy unless he's hungry."

So, that's your memory of them. 

MS HAIR:  Yes. 

MS EASTMAN:  Now, dogs are pretty important in your life, aren't they?

MS HAIR:  Yes. 

MS EASTMAN:  And I think you've got LockY with you today. 

MS HAIR:  Yes. 

MS EASTMAN:  When you got to know Jonathon and Kaleb, you came to realise that actually they were quite fond of dogs as well, and you used to bring one of your dogs over to see both of the young men, and you remember that they both loved your dogs. 

MS HAIR:  Yes. 

MS EASTMAN:  What is it about your dogs that you remember that they liked?

MS HAIR:  AzI is very forgiving. She'll just   if it's got affection in it, she likes you.  And Kaleb is very stand offish, but when he trusted her, he just laid on her, and I'd never seen him do that before. Like, he would play with her ears and   

MS EASTMAN:  Kaleb would basically cuddle the dog. Is that right? 

MS HAIR:  Yes. Yeah.

MS EASTMAN:  And your dog was quite relaxed and unfazed with that level of affection. 

MS HAIR:  Absolutely. Absolutely. 

MS EASTMAN:  And one time, I think you remember that incident in the car and is that   was when he just flopped over your dog and   

MS HAIR:  Yeah. Yeah.  Because AzI was sitting between the two boys and woo, woo, both sides are doing that, and she's completely unfazed, and then she laid down on Kaleb and Kaleb just laid down on top of her and he was just so relaxed. 

MS EASTMAN:  Now, I want to ask you a little bit about Kaleb, and you thought that he had lots of potential.  And when there were times when you were inside the next door neighbour's house, you had seen him come out of his room, get himself a glass of water if he was thirsty, and there was one time when you had Kaleb for a sleepover at your house. I think this was a time when Jonathon was in hospital because he had had a seizure. And you hadn't had him stay over at your house beforehand, and your son was also at the house as well?

MS HAIR:  No. 

MS EASTMAN:  He wasn't. Okay. So, when   

MS HAIR:  I think the next day my son came home and they played ball together and I just didn't know that Kaleb had the social capacity to do that. 

MS EASTMAN:  Okay. So, you were able to see Kaleb do a range of different activities, and as you got to know him, you could see in some ways he could be independent, in some ways he needed a lot of support. 

MS HAIR:  Yes. 

MS EASTMAN:  But that he could also make decisions about things like whether he wanted to play ball. 

MS HAIR:  Yes. 

MS EASTMAN:  Or some of the activities he did; is that right? 

MS HAIR:  Yes. 

MS EASTMAN:  But you also saw on a number of occasions Kaleb's father yell at him if Kaleb, for example, wanted to get a drink of water. 

MS HAIR:  Yes, and he lost confidence. 

MS EASTMAN:  Kaleb lost confidence. 

MS HAIR:  He lost confidence in what he was doing. 

MS EASTMAN:  Okay. Can I turn now to ask you a little bit about what you saw inside the family home. So, there were times when you did go into the family home. 

MS HAIR:  Yes. 

MS EASTMAN:  And the Commissioners have seen a photo of some parts of the family home this morning in the opening. Can you tell the Commissioners about what you can remember inside the family home and what it looked like? If you want to read from paragraph 16 of your statement or just have a look at what you've said at paragraph 16, if that helps you to describe the inside of the family home. 

MS HAIR:  Well, the lounge room was very bare. It just had boxes of nappies in the corner. A fold out bed with no mattress, a table   very, very dirty table that had never been wiped down.  Very dirty all over the walls and the doors, piles of clothes that were mouldy and bugs on them in the bathroom, a spoon on the door so that it could be   

MS EASTMAN:  What do you mean by spoon on the door?

MS HAIR:  There was no handle on the door to the room for the boys. It was just a spoon put in there so that Paul could open and close it from the outside. 

MS EASTMAN:  Okay. Can you remember seeing anything about Kaleb and Jonathon's bedroom?  And I think you knew that they shared a bedroom; is that right? 

MS HAIR:  Yes, yeah, there was nothing in there   

MS EASTMAN:  What do you remember about their bedroom? 

MS HAIR:  Just nothing in there except for a blow up mattress. 

MS EASTMAN:  Did you ask their father why there wasn't any furniture in the boys' bedroom other than the blow up mattress? 

MS HAIR:  Because of Jonathon's seizures. 

MS EASTMAN:  And did he explain to you why Jonathon's seizures was relevant to not having any furniture other than the blow up mattress in the room? 

MS HAIR:  Because it   he would fall off the bed in a seizure and that would hurt him more, whereas if there's no furniture in the room, he would be on the floor already, to have the seizure. 

MS EASTMAN:  And in terms of the blow up mattress in the bedroom, you remember seeing that the mattress was on the floor, Kaleb and Jonathon didn't have pyjamas. 

MS HAIR:  No. 

MS EASTMAN:  There was no blanket, even in winter. 

MS HAIR:  No. Yeah. 

MS EASTMAN:  And that their father would take the mattress out each day; is that right? Clean the floor when the boys were at school and use lots of bleach and paint scraper to bleach the floors and sometimes the walls; is that right? 

MS HAIR:  Yes. And Kaleb would have red legs because he would   and swollen legs from curling up to be warm in winter. 

MS EASTMAN:  You saw that yourself? 

MS HAIR:  Yes. 

MS EASTMAN:  Overall, you described the family home as not very clean, and there was one time when you ended up scrubbing the walls with a broom. 

MS HAIR:  Yes. 

MS EASTMAN:  And you were also   had times where you would wash the dishes? 

MS HAIR:  Yes. 

MS EASTMAN:  And Paul paid you to do some of that cleaning work, did he? 

MS HAIR:  Yes. 

MS EASTMAN:  And when you did that cleaning work, what did that involve for you? What sorts of cleaning did you have to do? 

MS HAIR:  There would be maggots in pots from being left with food in it, just loads of dishes, lots and lots of dishes.  Because when they came out of their room, they would have stuff on their hands, faeces  

MS EASTMAN:  What sort of stuff would they have on  

MS HAIR:  Faeces or urine and they would touch as they went into the shower, so it was just everywhere. 

MS EASTMAN:  You weren't the only person who provided some help around the house, and you saw that Kaleb and Jonathon's father had some other friends who came and helped as well?

MS HAIR:  Yes. 

MS EASTMAN:  There was one person who bought chicken food for the chickens; is that right? 

MS HAIR:  Yes. 

MS EASTMAN:  And that friend helped looked after the chickens? 

MS HAIR:  Yes. 

MS EASTMAN:  But I think you believe that Paul Barrett didn't do very much around the house. He just enlisted other people to help him? 

MS HAIR:  Yes. 

MS EASTMAN:  I want to ask you about Jonathon and Kaleb and what happened when they were in their bedroom, and you've dealt with this in the statement. You said there's one time that you saw their father open the door of the bedroom and that there was urine on the floor. Kaleb couldn't stand up and walk. His father was yelling at him to get out the door and go to the shower to get ready for school. And you saw that Kaleb was slipping in the faeces and urine. Given this description of the state of the boys' bedroom, you also tell the Royal Commission that when you were there, the boys would usually spend their time in their bedroom; is that right? 

MS HAIR:  Yes. Very long amounts of time. 

MS EASTMAN:  When they were in their bedroom, the door was locked? 

MS HAIR:  Yes. 

MS EASTMAN:  And it was up to their father to let them out? 

MS HAIR:  Yes. 

MS EASTMAN:  And this explains the spoon in the door. Your memory is that Paul had taken the doorhandle off the door so the boys couldn't open the door; is that right? 

MS HAIR:  Yes. 

MS EASTMAN:  And he had the spoon on the outside of the door which he used as a sort of makeshift handle; is that right? 

MS HAIR:  Yes. 

MS EASTMAN:  You saw what happened to Jonathon and Kaleb in their bedroom because your kitchen window looked in their bedroom; is that right? 

MS HAIR:  Yes. 

MS EASTMAN:  And they didn't have any curtains or windows covering in the bedroom, did they? 

MS HAIR:  That's right. Even the flyscreens, they'd peeled them off as well. 

MS EASTMAN:  So, I'm looking at paragraph 22 of your statement and you say you could see when they were locked in their room, and you saw on multiple occasions they were locked in their room for most of the day on a Saturday and Sunday. 

MS HAIR:  Yes. 

MS EASTMAN:  And during the week, during school holidays? 

MS HAIR:  Yes. 

MS EASTMAN:  On a few occasions, they were locked in their room all day and into the night? And when they were locked in their bedroom, they were not able to access water, food or the toilet unless their father gave them access? 

MS HAIR:  Yes. 

MS EASTMAN:  And these are things that you could see through your kitchen window? 

MS HAIR:  Yes. And I could hear them. 

MS EASTMAN:  There are quite a few times when you knew that both Jonathon and Kaleb were locked in their rooms for the day and you'd play relaxation music out loud so they could hear it, and sometimes you'd whistle through the window and Jonathon would whistle back. 

MS HAIR:  Yes. 

MS EASTMAN:  As you got to know Kaleb and Jonathon, you started to care very much for them, didn't you? 

MS HAIR:  Absolutely. They're just lovely. They're lovely. They're fun. I understood what trauma feels like and what it feels like to be abused, so I understood them. 

MS EASTMAN:  The ways in which you communicated with them are through music, through gesture and through the things that you did. You did this because you felt that it would support them. 

MS HAIR:  Yes. 

MS EASTMAN:  Make them feel calm. 

MS HAIR:  Yes. 

MS EASTMAN:  And, as far as possible, safe. 

MS HAIR:  But I loved them, yeah. Like a mum. 

MS EASTMAN:  Sometimes you felt like you almost had to be the mum for them, didn't you? 

MS HAIR:  Yes. 

MS EASTMAN:  You also had an opportunity to see their father interact with them and his style of communication, and you've told the Royal Commission in the statement that:

    "Paul was often quite rough with the boys."

And on many occasions you saw him shove them in and out of the car, and on occasions you also heard him yell at them and call them names, and you've given us a description of the name there. How do you say that and what does that mean?

MS HAIR:  Yeah, he'd just call them dickhead and fuckwit and just all kinds of names, pull them around, push them around, yell at them. 

MS EASTMAN:  Did you ever hear Paul describe the boys by their own names? 

MS HAIR:  No. 

MS EASTMAN:  I want to ask you now about care and supervision. So, you were aware of their morning routine, particularly when they were both at school and getting ready for school. And the morning routine would be that Paul would get the boys up in the morning, put them into the shower and turn it on? 

MS HAIR:  Yes, and then leave them in there. 

MS EASTMAN:  Right. That's what I wanted to ask you, whether   I was going to say, have we missed something in the paragraph here, but, what, just put them in the shower and turn it on?

MS HAIR:  Turn the shower on and the knobs were taken off, and he would turn it on and leave them in there. He didn't do any soaping or scrubbing. 

MS EASTMAN:  You said in the statement that he would turn   that the gas was turned off so the shower water was cold even in winter. How do you know that? 

MS HAIR:  I think he told me, and he used a camping stove in the kitchen instead of the stove that's in the kitchen. He would use canisters that would   on the camping stove, so he'd just basically turned the gas off. 

MS EASTMAN:  And you think that was because he wanted to save money; is that right? 

MS HAIR:  Yes. 

MS EASTMAN:  Okay. Back to the morning routine.  In the morning, Jonathon and Kaleb's nappies were always full.  Sometimes there would be faeces on the floor of their bedroom because Jonathon had taken his nappy off overnight.  And there were piles of soiled clothes festering in the corner, and I think you said that earlier, that the clothes were covered in mould and had bugs. 

MS HAIR:  And Kaleb's nappy would be so full that it would hang down to his knees and he would hold it to keep his dignity. 

MS EASTMAN:  The boys were always in a nappy and would only really have clothes on when they were going somewhere, coming back from somewhere or getting picked up for school in the morning; is that right? 

MS HAIR:  Yes. 

MS EASTMAN:  Now, throughout the statement, you've referred to some aspects of Kaleb and Jonathon's diet and things they ate, but you said on three times you saw Paul give the boys an open cold can of casserole. 

MS HAIR:  Yes. 

MS EASTMAN:  And one time you saw their father give them sausages in a sealed packet that they couldn't open because he hadn't opened it for them, so when you say sausage   

MS HAIR:  They were never open.  They would never open any food that they were given. They had to give it to Paul to open then it would be opened. 

MS EASTMAN:  Were these cooked sausages or raw sausages?

MS HAIR:  Raw. When we were outside with them. 

MS EASTMAN:  Outside. 

MS HAIR:  Yes. 

MS EASTMAN:  On another occasion, their father told you to give Jonathon and Kaleb a roast chicken that was in a bag that had been stored in a cupboard? 

MS HAIR:  Yes. 

MS EASTMAN:  And you saw a fly in the bag and you said to Paul that you didn't think it was appropriate to give the chicken to the boys because of the fly, but he told you to do it anyway, and did you  

MS HAIR:  No. 

MS EASTMAN:    agree? You didn't do it. 

MS HAIR:  No, I left because he got angry and started being angry and mad with me, and I just left. 

MS EASTMAN:  It was hard for you to leave, wasn't it, when you knew the boys were there?

MS HAIR:  Yes. 

MS EASTMAN:  And they needed support? 

MS HAIR:  Always. 

MS EASTMAN:  I want to ask you about another occasion where you did leave, and you took Kaleb and Jonathon with you. So, not long after you've moved into the house and you've got to know the family next door, you went camping with Paul and the friend who fed the chickens. 

MS HAIR:  Yes. 

MS EASTMAN:  And Jonathon and Kaleb. 

MS HAIR:  Yes. 

MS EASTMAN:  And during the day you felt the tension rising between Paul and his friend, and you also noticed that Jonathon and Kaleb were finding it hard to settle and to sleep. 

MS HAIR:  Yes. 

MS EASTMAN:  You remember that the boys' father and his friend got into a fight. 

MS HAIR:  Yes. 

MS EASTMAN:  And that caused you some distress. 

MS HAIR:  I just grabbed the boys and put them in the car and just drove off. 

MS EASTMAN:  You drove off? 

MS HAIR:  Yes, because it was all the chaos.  It would be very triggering for them, and it just wasn't safe, and the tension was rising and rising and rising and   

MS EASTMAN:  What, you sensed that both of the boys, Kaleb and Jonathon, were feeling very anxious?

MS HAIR:  Absolutely. Absolutely.

MS EASTMAN:     

MS HAIR:  Kaleb especially. 

MS EASTMAN:  You said to the Royal Commission in your statement that you felt that Kaleb's sense of safety was ripped apart, and you felt exactly the same? 

MS HAIR:  Yes. 

MS EASTMAN:  So you drove to KFC nearby.  Is that right? 

MS HAIR:  Yes. 

MS EASTMAN:  And you were in the car park. 

MS HAIR:  Yes. 

MS EASTMAN:  You were crying. 

MS HAIR:  Yes. 

MS EASTMAN:  And Kaleb and Jonathon were also really upset? 

MS HAIR:  Yes, we just sat in silence. 

MS EASTMAN:  When we asked you to prepare a statement, we asked you to tell us if you could remember about support services that were provided in house, and you've told us that   a little earlier, that you did some housework and cleaning, and also you remember other people came in who might have been the father's friends.  But our question was outside the family or outside friends, what other support services were you aware of or did you see in the house? So I'm up to paragraph 30 of your statement, and you said the father seemed averse to help, like respite or from   

MS HAIR:  Yes. 

MS EASTMAN:    other family members, because it meant that people would see how things were at home, and you said:

    "It seems to me like he would only let people in the home that he trusted."

MS HAIR:  Yes, yes, that he knew weren't part of the system that had been set up for support  

MS EASTMAN:  What do you mean?

MS HAIR:  Like, outside systems. Government funded systems. It seemed he would rather get support from random people around and people that had been   he'd trusted and felt like were just his people, not   yeah, just his   who he wanted. 

MS EASTMAN:  So you remember that there were times when people you don't know, but you assumed to be government service type people came to their house, and it appeared to you that when the services people came to the house, that he knew what they might be looking for. 

MS HAIR:  Yes. 

MS EASTMAN:  Can you explain that to me a little bit? 

MS HAIR:  He did tell me at one point that if child services came, all you had to do was fill up your fridge. Also, that the people at the school would write, "Wash under the arm of children to make sure they're being. He knew all the things to do that seemed like everything was okay. 

MS EASTMAN:  You remember two occasions when the Department of Housing came to do an inspection? 

MS HAIR:  Yes. 

MS EASTMAN:  Is that right? And you thought it was surprising that they didn't enter the house on both times you saw them? 

MS HAIR:  Yes, very surprising that they didn't go inside the house. 

MS EASTMAN:  Do you feel   and this is just your opinion   that Mr Barrett was trying to do what he could to ensure people didn't see what was happening inside the house? 

MS HAIR:  Absolutely. Absolutely. 

MS EASTMAN:  Did you ever talk to him and try to encourage him to get some outside services? 

MS HAIR:  Yes, like why didn't he let the boys go with the mother and her take care of them. He said something about the grandmother had her house full of precious objects and that they would just destroy the house, so he felt that it wasn't right for the boys to go there. 

MS EASTMAN:  One issue the Royal Commission is looking at is who wraps around young people like Kaleb and Jonathon, their supports in their immediate family, and then the supports from the people who know them and get to know them on a day to day basis. It may be schools or neighbours or other things. And one of the issues is how does the community or the neighbours become part of the eyes of making sure that we're safe in our houses, that we're connected with the community and that we know somebody's looking out for us, and we asked you about what you could recall about the safeguards in the community for Jonathon and Kaleb and you said this. Can I read this, it's your paragraph 32:

    "I believe Paul built a web of people around him and his relationships were very transactional. For example, he saw I was a good cook. I didn't have money to buy food at the time, but I could make food. So, he would pay for the food, and I would make it at my house and bring it over. I think he made friends with the workers at the school so that would come and help him when he needed. I saw a lady who would come on and off Jonathon and Kaleb's school bus and came into the house. Sometimes she would pick their bags and help them get on the bus to school. I believe Paul knew he was not looking after Jonathon and Kaleb properly, because one time he freaked out when the painters came around and left a biohazard card in the doorframe. Paul went into a panic, went straight into Jonathon and Kaleb's bedroom and started cleaning it. He was really freaked out."

You've told the Royal Commission about those memories of safeguards in the community. Is there anything else you want to say about safeguards in the community? 

MS HAIR:  No. I think it just   yeah, it was hard to get in there. 

MS EASTMAN:  You also had the opportunity, as you've told us during your evidence today, of seeing Mr Barrett's interaction with his own children, but you also know that he had his own troubles and demons, didn't he? 

MS HAIR:  Yes, he was abused. 

MS EASTMAN:  You knew he was drinking? 

MS HAIR:  Yes. 

MS EASTMAN:  And you believe he drank every day. 

MS HAIR:  Yes, and smoked marijuana, and I think some other things that we're not sure about. 

MS EASTMAN:  And in terms of the drinking, you saw he would usually have a minimum of two casks of port a day, and if you saw him in the afternoon you didn't know what to expect, and this contributed to his moods being so unpredictable. 

MS HAIR:  Yes. 

MS EASTMAN:  There were times when he could be calm and then it could switch quickly to yelling and ranting. 

MS HAIR:  Yes. 

MS EASTMAN:  And that this was often when Kaleb and Jonathon were at home? 

MS HAIR:  Yes. 

MS EASTMAN:  You had deep concerns about Kaleb and Jonathon, but you were also concerned about Mr Barrett's health and welfare as well, weren't you? 

MS HAIR:  Yes. I think he said he had diabetes, because I said a sore wasn't healing on his foot, and he went and got checked for diabetes. 

MS EASTMAN:  But there came a point in time where you just could not assist and support that family as well as supporting yourself and your own family; is that right? 

MS HAIR:  Yes, it was too overwhelming. 

MS EASTMAN:  So, you remained being neighbours but you started to pull back a little bit on what you could do to support the next door family; is that right? 

MS HAIR:  Yes. 

MS EASTMAN:  Tell me if it's okay to go to this next topic, which is Mr Barrett's death. 

MS HAIR:  Yes.

MS EASTMAN:  Are you okay if I ask you some questions about that? You remember that day on Wednesday, 27 May 2020? 

MS HAIR:  Yes. 

MS EASTMAN:  And this was a time where Australia was experienced the beginning of what we now know to be the COVID pandemic? 

MS HAIR:  Yes. 

MS EASTMAN:  You recall the police knocking on your door? 

MS HAIR:  Yes. 

MS EASTMAN:  And they told you Paul had passed away? 

MS HAIR:  Yes. 

MS EASTMAN:  And you were shocked? 

MS HAIR:  Absolutely. 

MS EASTMAN:  You had seen the police and the ambulance outside the family home that morning? 

MS HAIR:  Yes. 

MS EASTMAN:  And you thought that maybe Jonathon had had a seizure? 

MS HAIR:  Yes. 

MS EASTMAN:  The day after Mr Barrett's death, a journalist contacted you at your home at 7 am in the morning? 

MS HAIR:  Yes. 

MS EASTMAN:  Now, I assume I'm right in understanding that, in your life, you haven't spent a lot of time contacting and speaking to journalists, particularly in the early hours of the morning? 

MS HAIR:  No. 

MS EASTMAN:  The journalist came to your house asking about what you knew from next door? 

MS HAIR:  Yes. 

MS EASTMAN:  That made you feel very uncomfortable? 

MS HAIR:  Yes. 

MS EASTMAN:  Later that morning, someone else from another media outlet contacted you and also asked you about what had happened next door? 

MS HAIR:  Yes, and they were camped out the front, parked in cars. 

MS EASTMAN:  Out the front of your house? 

MS HAIR:  Yes. 

MS EASTMAN:  You provided a journalist with a copy of some footage, so a, recording that you had made from your property of Jonathon and Kaleb in their bedroom, and you did an interview? 

MS HAIR:  Yes. 

MS EASTMAN:  You wanted everyone to know how the boys had been living? 

MS HAIR:  Absolutely. 

MS EASTMAN:  You felt that you had witnessed what had happened to Jonathon and Kaleb during your time as their neighbour, and you felt it was right that what happened to them be brought to public attention. 

MS HAIR:  Yes, because they couldn't say.  They couldn't. 

MS EASTMAN:  So, as you know, Kaleb and Jonathon then moved from where they were living. 

MS HAIR:  Yes. 

MS EASTMAN:  And you haven't been able to have an ongoing contact or relationship with them? 

MS HAIR:  No. 

MS EASTMAN:  And that's also a really distressing thing for you as well? 

MS HAIR:  Yes. It's kind of like the end of the story that hasn't happened. 

MS EASTMAN:  Thank you for giving the Royal Commission such a comprehensive statement. I know it's been very difficult for you to tell the story. Is there anything I've forgotten to ask you or cover or anything that you would like to tell the Commissioners? 

MS HAIR:  I just hope the boys have a really wonderful life from here on in. Because they definitely deserve it. 

MS EASTMAN:  Ms Hair, thank you very much for sharing your time being a neighbour and friend to Kaleb and Jonathon. Thank you. Commissioner McEwin.

COMMISSIONER McEWIN:  Thank you, Ms Eastman. Ms Hair, thank you. If it's okay with you, I'll ask my colleagues if they may have some questions for you. 

MS HAIR:  Okay.

COMMISSIONER McEWIN:  Commissioner Mason? 

COMMISSIONER MASON:  I just wanted to say thank you, Ms Hair, for coming today and giving evidence on what you heard and saw with the boys, and also your best wishes for the boys as well. Thank you very much.

COMMISSIONER McEWIN:  Commissioner Ryan. 

COMMISSIONER RYAN:  Yes. Just also a couple of little things. By the description you've given of the house, did it smell bad when you walked through the door?  Would that have told people as you walked into it that there was something wrong? 

MS HAIR:  I actually don't have any sense of smell so I couldn't smell it, but his friends had said, "Can't you smell that?" and I said, "No". 

COMMISSIONER RYAN:  The other thing is you report that some people from the school went into the house from time to time. You're  

MS HAIR:  One. Yes, one. 

COMMISSIONER RYAN:  You're sure they went into the house?

MS HAIR:  Yes, into his room. 

COMMISSIONER RYAN:  And they would have seen what you saw?

MS HAIR:  No, because the door would have been closed to the boys' bedroom. It would have been closed. They would have gone just either into the living room. 

COMMISSIONER RYAN:  Would they have seen in the kitchen? 

MS HAIR:  Possibly, yes, yes. 

COMMISSIONER RYAN:  What made you think they were from the school? 

MS HAIR:  They got off the school bus.  Because of Jonathon's seizures, he had to have someone ride on the school bus in case he had a seizure. So, the same worker that worked at the school would turn up in the morning for the school bus to get on the bus with them. And they'd come in the afternoon and get off the bus and get in their car to go home. 

COMMISSIONER RYAN:  You talked about some painters. Did they go into the house too? 

MS HAIR:  No. 

COMMISSIONER RYAN:  Right. Thanks.

COMMISSIONER McEWIN:  Thank you, Ms Hair. I'll check with Ms Eastman. Do any of the parties with leave to appear, did they have any questions? 

MS EASTMAN:  None of the parties with leave to appear have raised with me a wish to ask any questions of Ms Hair.

COMMISSIONER McEWIN:  Thank you. Ms Hair, thank you very much for your willingness to come and give your account of what you saw and heard, and we very much appreciate your assistance to our work at the Commission. Thank you. You may be excused. 

MS HAIR:  Thank you. 

<THE WITNESS WITHDREW 

MS EASTMAN:  Thank you, Commissioner McEwin. We're making good time so if we could adjourn for the lunchbreak now and resume at 1.30 pm.

COMMISSIONER McEWIN:  Right. Thank you, Ms Eastman.  So we will come back at half past 1. Thank you. 

ADJOURNED 12.13 PM

RESUMED 1.36 PM

COMMISSIONER McEWIN:  Thank you. Before we go any further, I just want remind everyone here in the Brisbane hearing room and those who are watching this hearing over the livestream that there are non publication and pseudonym directions which apply to certain evidence. The two young men who are the focus of this hearing are referred to pseudonyms Kaleb and Jonathon. Pseudonyms also apply to Alexis, and Kaleb and Jonathon's current NDIS service provider, which we call Service Provider A. 

The Royal Commission has made directions prohibiting the publication of their names and identifying information in relation to this hearing. Thank you. Ms Eastman. 

MS EASTMAN:  Thank you, Commissioner McEwin. Our next witness is Alexis. As you've just identified, she's using a pseudonym and she's giving evidence on behalf of Service Provider A. And Alexis is here in the hearing room and I understand she'll take an oath.

<ALEXIS, CALLED

COMMISSIONER McEWIN:  Alexis, thank you very much for coming to the Royal Commission, and the Commissioners are very grateful for your contribution. I'm Commissioner McEwin. This is Commissioner Mason and Commissioner Ryan. I will ask the associate to please read out, who will administer the oath for you. Thank you. 

THE ASSOCIATE:  I will read you the oath. At the end please say yes or I do. Do you swear by almighty God that the evidence which you shall give will be the truth, the whole truth and nothing but the truth. 

ALEXIS:  Yes.

<ALEXIS, SWORN

COMMISSIONER McEWIN:  Ms Eastman. 

<EXAMINATION BY MS EASTMAN SC

MS EASTMAN:  Thank you. Well, thank you, Alexis. You've provided your name and your professional working address to the Royal Commission; that's right? 

ALEXIS:  Yes. 

MS EASTMAN:  And we're using the pseudonym Alexis today? 

ALEXIS:  Yes. 

MS EASTMAN:  Commissioners, you have in the background material in preparation for Alexis's evidence an outline of the topics we'll cover today, and you also have the two statements provided by Service Provider A in response to notices issued by the Royal Commission. Those two statements set out, for Kaleb and Jonathon respectively, the services provided by Service Provider A to each of them, and those are some of the topics that I'll cover with Alexis now. 

So, Alexis, can I start. Can you tell us a little bit about yourself and your role with Service Provider A. 

ALEXIS:  Yes. So, I am the Care Services Coordinator for Service Provider A and we provide 24/7 support for Kaleb and Jonathon in their current home, and I've been in this role for coming up to a year, working very closely with Kaleb and Jonathon and supporting them to both reach milestones within their individual development and plans. And, yeah, we've been providing supports for Kaleb and Jonathon coming up for three years towards the end of this year, and, again, I've known them since starting this role and I meet with both Kaleb and Jonathon quite frequently.

MS EASTMAN:  You've got a copy of a statements that have been provided earlier. 

ALEXIS:  Yes. 

MS EASTMAN:  That was in response to a notice given by the Royal Commission to tell the Royal Commission about the nature of the services provided to Kaleb and Jonathon. So, you've got a copy with you. 

ALEXIS:  Yes. Yes, I do. 

MS EASTMAN:  And if, as I'm asking you any questions or topics, you need to refer to those statements feel free to have reference to them or read from them if you wish. So, I want to start with the living arrangements for both Kaleb and Jonathon. We're speaking about them together because they live together. So, can you give me a description of Kaleb and Jonathon's current living arrangements? 

ALEXIS:  Yes. So, they are in the a Department of Housing home, sharing that home together. There are three bedrooms.  They both have their own separate, quite decently sized bedroom, and there is a third bedroom there for the staff member as well. They both have their own single beds, mattress, bed frames, adequate linen, quilts, pillows. Both have a wardrobe, as well, full of clothes, shoes, you know, additional blankets and such, and they do also keep some of their favourite toys with them. Usually during the day and also at night with them as well when they are asleep in their room. They have   

MS EASTMAN:  Can I ask you to slow down a just little bit. 

ALEXIS:  Yes. Sorry about that. So, they have a large lounge room as well that they like to watch TV.  They do have a wall mounted television as well in the room. They have a bookshelf, table and chairs for them to use. They have a kitchen space as well with a dining table and chairs that they eat every meal at during the day. We are also in the process of getting them new couches so they can have one each to use during the day with the staff, and we are also working on getting some light up music players for them as well, because they really enjoy listening to music. The property does also have a large backyard that they tend to go out to on a daily basis. There is a swing set that Kaleb really enjoys using, and there is an enclosed trampoline that Jonathon tends to use more, with the staff as well. 

MS EASTMAN:  So just about the backyard. 

ALEXIS:  Yes. 

MS EASTMAN:  You might be like me and not so good at exactly the measurements of it, but when we think about a backyard, what sort of dimensions are we talking about in terms of the space?  So, enough to fit a swing set.

ALEXIS:  Yeah. 

MS EASTMAN:  And a trampoline.  But does it have grass and trees?

ALEXIS:  Yes. 

MS EASTMAN:  What does it look like?

ALEXIS:  There's quite   so, the trampoline and the swing set are towards the back of the space. There is quite a large grassed area as well as you come down the stairs. So, yeah, there is a large grassed space and a couple of trees in the backyard as well. 

MS EASTMAN:  How much time would they spend either inside the house or outside the house?  I'm going to ask you about some of their activities in a minute.

ALEXIS:  Yeah. Yeah. They spend a lot of time in the backyard, as much as they can. Kaleb does ask quite a lot to go down to the backyard. He loves his swing. So, they   they're taken out there quite often during the day with the staff, yeah. 

MS EASTMAN:  Are they at a point where they can decide themselves independently to go and use the backyard   

ALEXIS:  Yeah. 

MS EASTMAN:    and just come and go?  Or do they have to ask permission to go in and out?

ALEXIS:  We   Kaleb asks to go out there frequently.  Jonathon will usually   he's taken my hand or he takes the staff member's hands and will show them to the back door when they do want to go to the backyard. Kaleb is allowed time on his own in the backyard if he wishes just so they have their own time in the house, yeah.

MS EASTMAN:  In terms of in the house and how they move around the house, the Royal Commission has heard a little earlier today about the circumstances of their previous home and the extent to which they were able to move around that house or not. 

ALEXIS:  Yes. 

MS EASTMAN:  In this house, they each have their own bedroom.

ALEXIS:  Yes.

MS EASTMAN:  And you've said there's a lounge room and a kitchen and quite a lot of furniture  

ALEXIS:  Yes. 

MS EASTMAN:    it sounds like, in the house. 

ALEXIS:  Yes. 

MS EASTMAN:  So, in terms of moving around the house, can you give us a sense of how they use the house, how they interact in the house with each other and with the support workers?

ALEXIS:  Yeah. They constantly are moving freely about the space to their rooms, through the kitchen and lounge room. If they want to sit down and have a rest, they will go and have a rest on the couch with the staff and just watch TV. If they want to go to their own rooms, they will. They shut the doors and have their own private time, their own space, so they move freely throughout the house constantly. 

MS EASTMAN:  So, they can decide within the house where they go. 

ALEXIS:  Yes. 

MS EASTMAN:  And what they do within the house. 

ALEXIS:  Definitely. 

MS EASTMAN:  Can I turn to one bit of we've heard about using bathroom, showers and toileting, what are the arrangements within the house around bathroom, toileting, showers?

ALEXIS:  Yeah. 

MS EASTMAN:  And how are they using that space?  Is that something they can do independently?

ALEXIS:  Yeah, they've been working on that quite a lot recently. They do still have a schedule where they are taken to the bathroom throughout the day. It's usually when they wake up, before and after lunch, and then in the evenings as well. Kaleb does take himself to the bathroom now. He will still require assistance from staff, you know, with the pad changes and then potentially getting changed after as well. Jonathon does need a bit more assistance with that still but he's still kept on that schedule throughout the day with his toileting. 

MS EASTMAN:  I want to ask you now about the types of supports that are provided to each of Kaleb and Jonathon, and in paragraph 2 of the respective statement provided to the Royal Commission earlier this year, we asked you and you responded by telling us about the types of supports your service provider, Service Provider A, provides. We understand that the supports are provided on a one to one basis from 6 am in the morning through to 10 pm at night, and then support on a two to one basis for overnight and during the evenings. That tells us a little bit about when the supports are in place, but what can you tell us about the type of supports and services   

ALEXIS:  Yep. 

MS EASTMAN:    provided to Kaleb and to Jonathon?

ALEXIS:  Yep.  So we do help them with quite a lot throughout the day and the evenings as well. So, we support them with their meal preparation, their personal cares   again, toileting, showering, washing, toilet brushing, personal grooming. Medication assistance, any tasks that they need assistance with fine or gross motor skills.  General supervision throughout the day, mostly. Cleaning of the house that they cannot assist with like mopping, vacuuming. Community access is a big one that we assist with. They do require assistance with personal banking as well, being taken to any medical or Allied Health appointments that may be arranged for them, shopping and then supports around any escalating behaviours throughout the day or evenings as well. 

MS EASTMAN:  Do they do any chores themselves around the house? 

ALEXIS:  They do. Yeah, more Kaleb has been helping.  So, he has been helping the staff and the staff have been really good at encouraging him to take the bins out on a daily basis. Kaleb also will put away their clothes, put away his toys, and also they both, after a meal or after a drink, will put their dirty dishes in the sink as well and just encouraging where they can, yeah. 

MS EASTMAN:  In terms of the supports that are provided are part of those supports assisting both Kaleb and Jonathon to build their skills and to give them choice and control in the activities that they do in the house and choice and control over the services that they need?  So there's a bit of three questions in one there. 

ALEXIS:  Yeah, so the main way in which we offer them the choice and control is their daily activities and asking them, you know, can you help wash today and things like that and learning   helping them learn new skills.  For instance, taking the bins out, that's a new skill that Kaleb has been learning. Also asking them if they do want to go to the park, to the backyard, do they want to try a new park as well. So, that's the biggest way we can offer that. Yeah. Also they can pick out their clothes from their wardrobe as well, their shoes when they want to go to the park or backyard. Yep.

MS EASTMAN:  I might just deal with that topic of clothing now, before I ask you about diet and food in the house. 

ALEXIS:  Yes. 

MS EASTMAN:  In terms of clothing, you've provided some photographs which we showed the Commissioners this morning of each of them, just from a view from the back and they have their shorts and T shirts on. 

ALEXIS:  Yes. 

MS EASTMAN:  And socks and shoes. Now, one thing we've seen in the course of reviewing the material is a suggestion that because both of them live with disability, they don't like or they don't wear shoes. Now, I don't know whether Service Provider A was aware of that statement being made before you took on supporting Kaleb and Jonathon, but you can tell us something about their relationship with shoes  

ALEXIS:  Yes. 

MS EASTMAN:    can't you?

ALEXIS:  Yes. 

MS EASTMAN:  Tell me about shoes and how they like their shoes. 

ALEXIS:  Yeah. 

MS EASTMAN:  And what the arrangements are.  But also the shoes are part of learning independence; is that right?

ALEXIS:  Yes. 

MS EASTMAN:  What can you tell us about that?

ALEXIS:  Yeah, we didn't know about that statement before taking them on. I mean, like a lot of people, they don't necessarily wear the shoes in their own home but they do   they have known that when we go to the backyard or when we go to a park or on community access, they know to go and collect their shoes. I've seen the staff and myself, you know, "It's time to go out, let's get our shoes" and they both can go to their room, find their shoes and, yeah, they can also pick out clothes as well, if they want to pick out clothes for the day, yeah. 

MS EASTMAN:  We've also heard a little bit of the earlier evidence today that when   in their former home, if they were at home, they didn't wear clothes that much.  They would only wear clothe if they were going to school or going out. So, at home now, what's the arrangement?  Do they wear clothes at home. 

ALEXIS:  Yes, they're in clothes every day. 

MS EASTMAN:  They each choose what they would like to wear?

ALEXIS:  Yeah. If they want to.  Some days they might not want to, so the staff will assist with that, but they both will   can go and pick out from their wardrobes what they want to wear for the day and just go and pick a shirt or shorts, yeah. 

MS EASTMAN:  I want to turn to the topic of their diets and the consumption of food. The Royal Commissioners are aware from the documents that are available and what's been recorded in the agreed facts that there have been occasions where each of the young men, Kaleb and Jonathon, would eat non food items, have an appetite for food that may be described by some as insatiable, so limited control over the amount of foods that they eat, and we've also heard a description from one of the neighbours today about the quality or the standard of that food. So, when Service Provider A came to provide services to Kaleb and Jonathon, that followed a period of time where they had been admitted to hospital with severe malnutrition and associated health problems flowing from that. 

ALEXIS:  Yeah. 

MS EASTMAN:  Are we right in understanding that managing and supporting both Kaleb and Jonathon in relation to their diet and food consumption is a very important area of support for services.

ALEXIS:  Yep.

MS EASTMAN:  Is that right? 

ALEXIS:  Definitely, yeah. 

MS EASTMAN:  And what did you know about the condition of Kaleb and Jonathon, other than that period of time that they had spent in hospital being treated for a very severe disease concerning malnutrition. Did you know much  

ALEXIS:  Not a lot. 

MS EASTMAN:    about their previous diet? Any information about that?

ALEXIS:  No. We knew it was poor but didn't know that much about it, yeah. 

MS EASTMAN:  The photos we saw from today, at least from the back, don't look like the types of images that you associate with the type of malnutrition and the disease that they were both suffering. 

ALEXIS:  Yeah. Yep.

MS EASTMAN:  So what can you tell us about the way in which they're both supported in their diet, their nutrition but also the structure and regulation around eating meals and things like that?

ALEXIS:  Yeah. 

MS EASTMAN:  Because you said earlier that they eat their meals. 

ALEXIS:  Yeah. 

MS EASTMAN:  Three times a day. 

ALEXIS:  Yes. 

MS EASTMAN:  But can you tell us what's the process in supporting them? 

ALEXIS:  Yeah. They've certainly come a long way with regard to their meals, so we do all the meal preparation for them. Any   any hot meals, such as dinners, are cooked at night when they're asleep because they just don't have that awareness around safety in the kitchen. But, yeah, the staff prepare their breakfasts, lunches.  They have fruit and snacks often. Kaleb will often ask for a cookie or tea, and so, yeah, we obviously help him with that. They do get seen by a dietitian as well who's been really involved in coming up with meal plans to help with their nutrition and they've   just even seeing how much they've grown in height wise and weight wise has been yeah, amazing, seeing that, yeah. 

MS EASTMAN:  Are they at a stage where they're able to contribute to making choices about the food that they eat? 

ALEXIS:  Yes, some.  Kaleb again, he will ask for snacks often. They   Kaleb can ask for water, drinks, tea   he loves teas in the evening   cookies, snacks.  So he can certainly ask for that. If they have a choice of fruit for a snack, they can take what they want, take the option that they feel like. 

MS EASTMAN:  For Jonathon, there's still some challenges for him that he's experiencing   

ALEXIS:  Yes. 

MS EASTMAN:    in terms of regulating his intake of food. 

ALEXIS:  Yes. 

MS EASTMAN:  But also non food items. 

ALEXIS:  Yeah. 

MS EASTMAN:  What supports is Jonathon receiving in relation to those sorts of challenges?

ALEXIS:  Yeah, so the staff definitely focus on portion control because, yeah, they would eat as much as they can, if they could. Jonathon does still daily display the behaviours of consuming non edible items. If they're on a walk or in the backyard, he may try and pick up a small stick or leaf and try and eat that. He does   not often, but he still will pick at his continence aid as well, so he does try and consume that. So, working on that is mainly the supervision of the staff, which is really important. He is getting a lot better at listening to staff instruction.  If he's asked to take it out of his mouth or spit it out or something like that, he often will. So, he's improving in that way, but he does still display those behaviours. 

MS EASTMAN:  As Service Provider A and you and support workers have supported those two young men, have their behaviours in relation to eating and consumption been understood as a form of communication as well?  Communication in the sense of the sensory way in which they experience the world, but also forms of communication in terms of being able to tell the support workers how they're feeling or what   what they might need at a particular moment in time? Have you looked at that relationship between the behaviours around food and forms of communication? 

ALEXIS:  We're looking in that   into that at the moment actually.  So, we're bringing on a new occupational therapist for them. She is looking at that behaviour with the food seeking and how we maybe can find something to replace that behaviour, such as like the edible toys and things like that, I don't know before my   me stepping into this role if it was looked at, but I know we are looking at that at the moment, yeah. 

MS EASTMAN:  I want to ask you about moving from inside the house and the garden to access to the community and broader activities.  And the Royal Commission has heard this morning, for example, that perhaps on some occasions on weekends and school holidays, when they were both at school that they would be confined to their bedroom. And one of the questions I think we were keen to understand is has the change in their living circumstances also provided a change to the community that wraps around them?  And by that I mean that where do they fit into their local community, what engagement do they have with their local community and their level of participation? So we asked you about that in preparing for the hearing. So, you've addressed that in your statement, and I know you've written some notes   

ALEXIS:  Yeah. 

MS EASTMAN:    to remind you about what you wanted to tell me around access to the community and activities. 

ALEXIS:  Yeah. 

MS EASTMAN:  So, what's the situation at the present time? 

ALEXIS:  So we do   we put a staff car in place at the home as well, so they do have constant access to be able to access the community. They do go out on a daily basis, whether it be   they do have a local park. I worked with the staff to come up with a list of new places as well for them to visit, which they have been taking them to in surrounding suburbs.  And so, yeah, they have gone to waterfronts.  They enjoy bush walks, barbecues with the staff. That probably is the main way they are fitting into the community at the moment.  Just with Jonathon's behaviours and the food seeking behaviours as well, he may go up to other people's barbecues and, yeah, try and access that. 

MS EASTMAN:  So one question might be that looking at their life course journeys   and we understand that they went to school at a special school   it's difficult to see that they developed friendships or had friendship groups or connection with aged peer friends while they were at school.  They may or may not have?

ALEXIS:  Yes. 

MS EASTMAN:  But they now both have left school.  Neither of them are in any type of employment and, as I understand it, they're not at a stage where even considering employment in an Australian Disability Enterprise is an option at this stage. What supports do they have to build relationships with aged peers or to participate more broadly in the community with other people  

ALEXIS:  Yep. 

MS EASTMAN:    as opposed to going to different locations? Is that something that Service Provider A is working with them under their plans to   to provide supports and if so, how are you doing that? 

ALEXIS:  Yeah, the main way   so I am trying to look into potentially a day program or service for Kaleb.  I believe he could be close to that point to have that, or even have a day service come to their home as well could be an option. Working with their allied health, having the visits from the behaviourists, the OTs, which is going to start soon.  It may be hard for them to hold down a job in the future, but I feel they could work toward a day program, continuing with frequent supports and, yeah keep going.

MS EASTMAN:  So they will need support to develop the skills   

ALEXIS:  Yeah. 

MS EASTMAN:    and be supported in the skills to be able to participate  

ALEXIS:  Yeah. 

MS EASTMAN:    in environments where they can engage with aged peers?

ALEXIS:  Yes. 

MS EASTMAN:  But at the present time their lives are essentially with each other as brothers. 

ALEXIS:  Yes. 

MS EASTMAN:  And I think sometimes they get on each other's nerves?

ALEXIS:  Yes, they can, yes. 

MS EASTMAN:  But other than that, most of their life is surrounded by adults. 

ALEXIS:  Yeah. 

MS EASTMAN:  And people supporting them, or checking on them. 

ALEXIS:  Yeah. 

MS EASTMAN:  Or monitoring them in some way, so that's pretty much   

ALEXIS:  Yes. 

MS EASTMAN:    that's their life at the present time. 

ALEXIS:  Mm hmm. 

MS EASTMAN:  I want to ask you about supports in relation to their health, and that's the medical and therapeutic supports. Each of them have particular and separate health requirements. So, it's not a one size fits all in terms of the therapeutic supports they require. But what does the service provider do in terms of the support in relation to engaging with health systems? 

ALEXIS:  So my role is a lot of liaising with the supports and booking appointments and follow ups as they're needed. Kaleb does have his regular   access, if he needs it, to his GP. He will start more visits with his OT when that plan comes through, and he does have fortnightly visits from his behaviourist as well. He also gets about fortnightly to monthly support from his dietitian, and then he is assessed annually by the autism specialist as well. 

Jonathon is also   has access to his GP as required. He does receive support, yeah, again fortnightly to about monthly from the OT when that starts, as well as the dietitian and then he   they both do have visits from a speech therapist as well to work on that communication, and infrequent supports from the psychologist and behaviourist for Jonathon. 

MS EASTMAN:  And they both presently have the Public Guardian appointed. 

ALEXIS:  Yes. 

MS EASTMAN:  And one of the responsibilities of the Guardian is also to assist them, support them to make decisions around the health issues; is that right? 

ALEXIS:  Yes. 

MS EASTMAN:  So part of our role in supporting them on the health and therapeutic supports, does that include liaising with the Guardian from time to time?

ALEXIS:  Yes, it does, yeah. 

MS EASTMAN:  Beyond the decisions around health issues what other arrangements are there in place from the Public Guardian   who we're going to hear from very shortly. 

ALEXIS:  Yes. 

MS EASTMAN:  From your experience, what's the nature of the relationship between the Public Guardian and the service provider in supporting both Kaleb and Jonathon? 

ALEXIS:  Yeah, I am in touch with them both quite frequently.  You know, they do check in just to see how they're going, any plan reviews type things as well, they'll, yeah, just call, check in and see how they are, yeah. 

MS EASTMAN:  Next question I wanted to ask you is about restrictive practices, and that's a topic that the Royal Commission has heard a lot about in the course of its work over the past few years and how restrictive practices can often limit a person's rights. And then we've heard a lot about the regulation of restrictive practices and the obligation of service providers to report restrictive practices. We're aware   and I'll ask the Public Guardian about this shortly   that when the QCAT made orders with respect to the guardianship arrangements for both Kaleb and Jonathon, that included some authorisation in relation to restrictive practices. 

ALEXIS:  Yes. 

MS EASTMAN:  Service Provider A, as a registered service provider of the NDIS, also has particular obligations around restrictive practices. 

ALEXIS:  Yes. 

MS EASTMAN:  Is the Royal Commission right in understanding that in supporting both Kaleb and Jonathon, there have been occasions where there needs to be restrictive practices in operation? 

ALEXIS:  Yes. 

MS EASTMAN:  Alright. What can you tell us about the practice that the service provider uses in relation to restrictive practices   

ALEXIS:  Yeah. 

MS EASTMAN:    and the approach to restrictive practices for both Kaleb and Jonathon? 

ALEXIS:  Yeah, so the approved restrictive practices is the locking of the pantry door, which is approved for Jonathon. Kaleb did have that in his plan, but we were able to remove that as he improved in a way he didn't need to access the pantry and he   

MS EASTMAN:  Can I jump in there. 

ALEXIS:  Sorry, yes. 

MS EASTMAN:  When you say he improved in a way   

ALEXIS:  Yeah. 

MS EASTMAN:    can you spell out what those improvements were and how those improvements got to a point where the restrictive practice was not necessary? 

ALEXIS:  I think he   it was he learned, you know, to either ask for something from the pantry and he learned to listen to the staff, maybe, when he did try to access it, so he just    yeah, he learned not to access it, basically, for Kaleb, yeah. 

MS EASTMAN:  So with that behavioural change and working with the support workers   

ALEXIS:  Yes. 

MS EASTMAN:    that just accessing the pantry without any sort of moderation   

ALEXIS:  Yeah. 

MS EASTMAN:    or restraint, that's no longer his behaviour. 

ALEXIS:  Yes. 

MS EASTMAN:  And as a result, the restrictive practice is not in place?

ALEXIS:  That's correct, yes. 

MS EASTMAN:  Jonathon's is a slightly different situation. 

ALEXIS:  Yeah. 

MS EASTMAN:  And what's the situation with Jonathon and restrictive practices in relation to the pantry?

ALEXIS:  So it is still approved in Jonathon's plan.  At the moment   again, he's really improved with not wanting to access the pantry, and he has also learned maybe not to   or we don't really ever need to lock it anymore as well, which is a really good improvement.  And they know, yeah, to ask for something. Jonathon will maybe try and access the fridge now but not so much the pantry, yeah. 

MS EASTMAN:  Are there any other restrictive practices that are in place? 

ALEXIS:  No. 

MS EASTMAN:  I want to then turn to the future, and I said in making some opening remarks to the Royal Commissioners this morning that part of this case study is to examine a life course, and a life course allows us to look at different points in time in people's lives, and, in effect, sometimes the sliding door moments where the decisions that are made might take people down one pathway or other. So, at the present time, are we right in understanding that it's likely that Service Provider A will continue to provide services in accommodation and the broader supports that you've talked about   

ALEXIS:  Yes. 

MS EASTMAN:    indefinitely?

ALEXIS:  Yes. 

MS EASTMAN:  And the nature of those services are likely to change over time?

ALEXIS:  Yes. 

MS EASTMAN:  And I think you've been clear about the services building choice and control, building independence and to build a life of independent living. That's very much the goal. 

ALEXIS:  Yeah, definitely. 

MS EASTMAN:  At the present time, it's unlikely that they will ever be able to live wholly independently, but who knows what the future holds. 

ALEXIS:  Exactly, yeah. 

MS EASTMAN:  In terms of thinking about their short term, medium and long term goals about their lives, their participation in the community and what may be ahead of them in the future, we would like to be able to ask them, but I wanted to ask you, from the perspective of a service provider and your role in supporting them, is there anything you want to tell the Royal Commission about your sense of the future for them   

ALEXIS:  Yeah. 

MS EASTMAN:    based on knowing them?

ALEXIS:  Yeah. 

MS EASTMAN:  And based on supporting them and whether, you know, there will be a point in time where exercising dignity of risk will be something open to them without the fear of injury or some adverse outcomes?

ALEXIS:  Yeah. 

MS EASTMAN:  What would you like to tell the Royal Commission   

ALEXIS:  Yeah. 

MS EASTMAN:    about the future?

ALEXIS:  So even just working with them both in the year that I've been there coordinator, myself and my team have witnessed them grow and reach goals. So, continuing their growth with their independence within their daily lives. The staff there continue to encourage them both to assist where they can in their daily routines around the house, as I mentioned before, taking on new duties and being able to help take the bins out, for example, and putting away the toys.  The staff encourage Jonathon and Kaleb to, again, participate in their personal care, washing their faces, washing their hands, taking the washer from the staff and washing them in the showers.

And Kaleb continues to work on his vocabulary and just continues to progress in picking up new words that the staff   staff maybe pick a few certain words to help Kaleb learn. He's been getting really good at even saying my name, which is great, and that's   I feel like that's a very significant milestone for him to continue to pick up new words and phrases so he can grow in the way of communication with the staff, with myself, which has been really good for him to learn. 

Jonathon, his communication is progressing but definitely in a different way to Kaleb, so he will use hand gestures. So, we have put up, like, laminated pictures of certain sign gestures for the staff.  They've been there for quite a while in the house so the staff can continue to use them with Jonathon, and he does know a few of them, and the staff will continue to help Jonathon pick them up so he can communicate that way, as he may not be able to verbally communicate with the staff. 

Again, they have been engaged with a new OT who's working on developing new activities, sensory items, and they will be structured into their daily routine.  So we're working on a better daily routine for them that's a bit more structured to implement those sensory games and activities for them both. So, that will hopefully take away those   maybe those food seeking behaviour from Jonathon and refocus them elsewhere, and also build up their gross and fine motor skills.  And those, I believe   having those activities will also help with their independence as well, and pick up new skills and tasks. 

And to continue ensuring that we give them as much choice and control as possible, the staff and myself will ask what they want to do on a daily basis, what they want to eat, if they want to drink, what drink they might like, again, what they might want to wear and, again, if they have some activities they might want to do.  And we take   the staff and myself take guidance from them.  Again, if Jonathon might take my hand and show me to the back   backyard or I know Kaleb often asks to go to the park so we follow their instruction with that on a daily basis, yes. 

MS EASTMAN:  Well, thank you very much for answering my questions, and I hope I haven't overlooked anything, but the Commissioners might have some questions for you. Thank you, Alexis.

COMMISSIONER McEWIN:  Alexis, thank you. I'll ask my colleagues if they have any questions for you. I'll begin with Commissioner Ryan, any questions. 

COMMISSIONER RYAN:  Yes, I do. Look, you've provided   first of all, I didn't quite get, you told us that you had been looking after Kaleb and Jonathon for 12 months. The provider you   service provider 1, had they been looking after them for a longer period than that? Because they were   

ALEXIS:  Yes. 

COMMISSIONER RYAN:  How long would that be?

ALEXIS:  Yes, so I've just been in the role for just about a year, and so we have been supporting them for coming up to three years, yes. 

COMMISSIONER RYAN:  I understand, I think, from your statement that the support you provide in NDIS terms is called support for independent living. 

ALEXIS:  Yes. 

COMMISSIONER RYAN:  And I notice some of the other supports you provide are things like GP, an occupational therapist, a behaviour therapist and a speech therapist. 

ALEXIS:  Yes.

COMMISSIONER RYAN:  Do they have any sort of social supports other than that?  They sound like terribly medical things.  Is there not something else that extends outside of that? 

ALEXIS:  Not at the moment, no. Again, I'm hoping to look for a day program or day service for mostly Kaleb at the moment, and hopefully if Jonathon might be further down the track thing for him, but mostly the social interactions, again, is from the staff, myself, and appointments at the moment. 

COMMISSIONER RYAN:  Do they meet anybody else their own age in any context at all? 

ALEXIS:  No. 

COMMISSIONER RYAN:  Because this morning we had a witness describe to us that they were playing with a neighbour's child, and even the neighbour's child was surprised that one of them was able to play ball.

ALEXIS:  Yes. 

COMMISSIONER RYAN:  It sounds a long time in three years they haven't been able to go back to that. I mean, previously they went to school, and one imagines that they met other people. It just seems an awful long time.  I mean   and from my experience in your field, many of the things you've told us about today are pretty typical of what we would find in a group home.  It's almost ticking off that and almost repetitive. I mean, I can't help but notice that your description of the activities done by both of the young men are almost exactly the same. I look at the statement with regard to Kaleb, there's a list   point form list and it's almost exactly the same list as presented   I mean, does it not worry you that there's not something different in their life after three years? I accept that you have a long way to go and you've come a long way, but it does seem terribly medical, terribly typical of the kind of support that's provided in   because do they have any other providers outside of SIL?

ALEXIS:  No, they don't, no. 

COMMISSIONER RYAN:  Okay. Well, did you want to comment on my observation about   

ALEXIS:  Yeah, I can't speak so much for me being in this role and what occurred there. I have been reaching out to the support coordinator to get help with finding a day program or other interactions for them. 

COMMISSIONER RYAN:  What about something completely unstructured like just going somewhere where they see other people? I mean, for example, the parks they go to, is that almost   do they have a routine of which park they go to? 

ALEXIS:  No, they don't have a routine. I know some days  

COMMISSIONER RYAN:  Do they go together? 

ALEXIS:  Yes, they do go together.  I know when Kaleb is seen by his behaviourist, they do go to a different location and leave the home and have that separate time there. 

COMMISSIONER RYAN:  Alright, thank you.

COMMISSIONER McEWIN:  Commissioner Mason. 

COMMISSIONER MASON:  Thank you, Chair. Just following on with Commissioner Ryan's comments about Ms Hair's evidence this morning, I think one of the animated parts of her evidence was the boys playing with her dogs, and I thought that that   around the emotional encouragement and attachment but also around skills and leadership. I thought that that was a really interesting part of her evidence because it was showing the empathy that the boys were having with her dogs. 

ALEXIS:  Yes. 

COMMISSIONER MASON:  And also, together with what Commissioner Ryan was saying around Ms Hair's son playing with Kaleb, and that there was a sense of wanting to be playful. So, I encourage the service provider to look at those activities   

ALEXIS:  Yes. 

COMMISSIONER MASON:    because the boys were very much enjoying those interactions.  Even Ms Hair's evidence around the chickens and finding that a playful thing. So   but thank you very much for your evidence today, Alexis.

COMMISSIONER McEWIN:  Alexis, a few questions from me. Firstly, I note from your statement for both Kaleb and Jonathon, they don't have access to independent advocacy services. Can you tell me why they don't have access to any services like that? 

ALEXIS:  No, I can't tell you why, I'm sorry. 

COMMISSIONER McEWIN:  So you don't know if any efforts have been made to link them with independent advocacy?

ALEXIS:  Not that I know of.

COMMISSIONER McEWIN:  The other question is, could you expand a bit more, when you were talking about the communication strategies you were doing with them, what about iPads and software and, you know, just all the amazing technology that we have these days?  Are you looking closely at that? 

ALEXIS:  Not so much iPads and things like that. We did up a communication booklet for them both to use which had familiar places, familiar food items and other items in their routine such as toileting, showering, things like that. It was hard for them to show interest in that, but we are working toward it, so that's why we did get some of those pictures done up and put around the home, because I know they can recognise them, so we did get them printed that way.

COMMISSIONER McEWIN:  So, just to close this off, so you don't know if attempts have been made to be innovative and think outside the box in terms of different modes of communication? I'm not getting that sense from you. Perhaps expand a bit more? 

ALEXIS:  I think we are now. Again, I can't so much talk about when we did first support Kaleb and Jonathon, but with the new OT and the new items she's trying to access for them both, that will, I think, help more with their communication.

COMMISSIONER McEWIN:  Before we excuse you, I'll check in with Ms Eastman. Do the parties with leave to appear   I can see shaking heads so I assume no questions. Thank you. Alexis thank you very much.  We're very grateful for your contribution. It's been very important to hear from you about the services that you're providing to Kaleb and Jonathon. 

ALEXIS:  Thank you.

COMMISSIONER McEWIN:  Thank you. You may be excused and I will now ask Ms Eastman what next?

<THE WITNESS WITHDREW 

MS EASTMAN:  The next witness is Ms Shayna Smith, I know she's here, but we might just take five minutes, if that's convenient to the Royal Commissioners, to reconstitute the hearing room. Thank you.

COMMISSIONER McEWIN:  It's almost 25 past so 2.30? 

MS EASTMAN:  Yes.

COMMISSIONER McEWIN:  Half past 2? Thank you. So, we'll be back at 2.30. 

ADJOURNED 2.22 PM 

RESUMED 2.34 PM

COMMISSIONER McEWIN:  Yes, Ms Eastman. 

MS EASTMAN:  Thank you, Commissioner McEwin. Our next witness is Shayna Smith, the Public Guardian of Queensland, and I welcome Ms Smith back. I think this is the third time Ms Smith has given evidence in addition to Public hearing 6, Public hearing 30, and I understand she'll take an affirmation.

**<SHAYNA SMITH, CALLED

COMMISSIONER McEWIN:  Thank you, Ms Smith, for coming back again. We're very grateful for your ongoing contribution to the work that we're doing. I'll just quickly explain, I'm Commissioner McEwin, this is Commissioner Mason and Commissioner Ryan. I will ask now the associate to administer the affirmation. Thank you. 

THE ASSOCIATE:  I will read you the affirmation. At the end please say yes or I do. Do you solemnly and sincerely declare and affirm that the evidence which you shall give will be the truth, and nothing but the truth?

MS SMITH:  I do. 

**<SHAYNA SMITH, AFFIRMED

COMMISSIONER McEWIN:  Thank you.  Ms Eastman will now ask you some questions.

**<EXAMINATION BY MS EASTMAN SC

MS EASTMAN:  Thank you. So, I just confirm you are Shayna Smith?

MS SMITH:  I am. 

MS EASTMAN:  And you are the Public Guardian for Queensland?

MS SMITH:  Yes. 

MS EASTMAN:  And you are appointed under the Public Guardian Act 2014?

MS SMITH:  Correct. 

MS EASTMAN:  You have prepared a statement for this Public hearing dated 28 April 2023. 

MS SMITH:  Yes. 

MS EASTMAN:  Are there any corrections or amendments to the statement?

MS SMITH:  No. 

MS EASTMAN:  And are the contents of the statement true and correct?

MS SMITH:  Yes. 

MS EASTMAN:  Now, I think on two previous occasions I have asked you about your role as Public Guardian and the discharge of your functions. I'm going to take it that those who follow the work of the Royal Commission will be aware of your previous evidence, and if they're not then it's available to them on the Royal Commission's website. I want to focus on two issues in your evidence this afternoon. The first is the circumstances in which the Public Guardian came to be appointed for both Kaleb and Jonathon respectively. 

And secondly, I want to turn to the way in which a human rights approach operates in Queensland. This afternoon the Commissioners will hear from you but also from the Queensland Human Rights Commissioner, and as a public entity in Queensland, making decisions and acting consistently with human rights is now part of your functions. So, I want to ask you some questions about how does that work in practice, and perhaps we can see it operating in practice in the context of some of the decisions that you've had to make in the lives of Kaleb and Jonathon. 

MS SMITH:  Sure. Alright. 

MS EASTMAN:  So I think I might have muffed up, if I can use that very legal expression, the dates for the guardianship appointments earlier today. Can I just start with how the Public Guardian came to be appointed in the circumstances for both Kaleb and Jonathon. We'll start with Kaleb, and you've set this out in your statement   and, Commissioners, if you have Ms Smith's statement, this is paragraph 14 and following on page 2. We know from the chronology that Kaleb and Jonathon were found in their home on 27 May 2020, and we know from the agreed facts that both of them were admitted to hospital and treated in relation to severe malnutrition. 

In relation to Kaleb, on 3 June 2020, QCAT made an interim order appointing the Public Guardian for decision making in relation to Kaleb's accommodation, health care and the provision of services, including in relation to the NDIS for a period of three months. Then on 2 September 2020, QCAT made an order appointing the Public Guardian for a further five years for decision making for the provision of services, including in relation to the NDIS. And on 31 March 2021 QCAT appointed the Public Guardian for decision making in relation to restrictive practices generally for Kaleb for a period of two years, and that appointment has since lapsed. 

MS SMITH:  That is correct. 

MS EASTMAN:  So does that cover the various orders made by QCAT in relation to Kaleb? 

MS SMITH:  Yes. 

MS EASTMAN:  And at the time the order was made appointing the Public Guardian for Kaleb, he was an adult? 

MS SMITH:  Yes. 

MS EASTMAN:  And your functions and powers, together with your responsibility in relation to Kaleb, are centred on the matters described in paragraph 17 of the statement.  And I want to ask you about some of those matters. So:

    "Supported decision making wherever possible, otherwise substituted decision making and advocacy in relation to the guardianship order, and also independent monitoring through the Community Visitor program and the adequacy and appropriateness of the service provided at his accommodation." 

So, in relation to the supported decision making wherever possible, and otherwise substitute decision making and advocacy, these are topics I know we've spoken about generally at Public hearing 30 but in terms of Kaleb, what have been the steps taken on supported decision making wherever possible for him? 

MS SMITH:  Well, in relation to the matters that we assist Kaleb making decisions at present, that's only service provision decisions. So, I mean, there's inherently a tension in the Guardianship and Administration Act because the Tribunal actually makes a declaration of incapacity for those decisions and appoints the Public Guardian as a substitute decision maker, and the legislation states that where that is done, we're not required to assess capacity, and incapacity can be presumed.

But in practice, we follow the general principles of the legislation which apply more widely than formal decision makers. They also apply to the community and informal decision makers. And within that, there's a structured decision making approach and that starts with supported decision making where possible. Elements of supported decision making mean that, ultimately, a person needs to understand their choices in relation to the decision, and also be able to communicate their needs and wants. So, when a decision needs to be made in relation to Kaleb's service provision, then, obviously, we would look at that decision and see if that's a decision that Kaleb can understand his choices in relation to, and whether he can communicate effectively what he might want in relation to that decision. 

So, there's been approximately 27 service provision decisions for Kaleb since our initial appointment, and as you've heard earlier today, the majority relate to Allied Health support. There's also been a multitude of NDIS decision making and also service provision decisions in relation to the support coordinator under that NDIS plan. 

MS EASTMAN:  So when we were back at Public hearing 30 and examining supported decision making, one aspect of the evidence arising in that Public hearing was the importance of staff and, particularly from a Public Guardian's perspective, getting to know the person, and knowing the person is material to the person's choice and control, being able to articulate their choice and control, and then to support a person in the way that decisions are made, even when you don't have to really do that, do you? 

In relation to Kaleb, the interim order was made while he was in hospital and less than a week after his father had passed away. The Public Guardian had no involvement in the lives of Kaleb or Jonathon before that time. When the Public Guardian was appointed on an interim basis and then, a few months later, a permanent basis, what information, if any, did you have about Kaleb? 

MS SMITH:  No information and, therefore, really we were starting from square one, and the initial NDIS plan, the funding involved the obtaining of a range of assessments from the   from the range of medical and Allied Health professionals so we can begin to understand Kaleb, his needs, his function   his functional assessment, and also begin to provide that stability in his life through his service provision so we can understand what his likes, dislikes are and needs and wants. 

So, it takes time to build up that raft of information. The assessments are undertaken by the team that wrap around him, the professionals, and through those reports and assessments we begin to understand what, for example, Kaleb's communication functions were and what his   I guess his capacity to build those skills within a range of areas, and that included through dietitians's assessments, occupational therapists' assessments, through speech therapists and also through a positive behaviour support specialist, who is a psychologist. So, it's about that information gathering, at that beginning stage, to   because we weren't privy to any of that. 

MS EASTMAN:  The Public Guardian in Queensland doesn't have, for example, the powers to say to Child Safety, to Department of Health, to Department of Education, "We would like the information about this young person so that we can have an understanding and build a picture of what his life was like" before you assumed that role as substitute decision maker. You don't have the power   

MS SMITH:  We can ask for the information but it's not necessarily forthcoming. And sometimes that information   for example, we have in the past asked for a Child Safety background but it may not contain those types of assessments that I just discussed. It may give us a picture about, you know, events that have happened prior to our engagement and prior to our commitment, but usually those health assessment reports are not part of that   that same, you know, child protection file. 

MS EASTMAN:  And for Kaleb, he's an adult at the time of the appointment being made, and it had been some time since he had been at school. Were you able to obtain any information about his life in the immediate 18 months before his father's passing? 

MS SMITH:  No. My understanding was that we did seek information from the Education, but due to privacy reasons, it was not provided.  But other than that, no. 

MS EASTMAN:  Alright. Now, you touched on privacy, and one of the more recent developments in Queensland has been the introduction of a Human Rights Act in Queensland. It commenced in January 2020. So, it has been in operation over the period you've been Kaleb's Guardian and one of the human rights recognised in the Human Rights Act is privacy. Sometimes the right to privacy cannot operate as an absolute right and there has to be some movement or perhaps limitation on privacy to achieve a greater purpose. When your office is met with privacy as a reason not to provide information, how do you navigate around those issues and work to achieving respect for human rights, be it privacy or the other rights in that Act? 

MS SMITH:  Well, we do   we do work with our government partners in relation to information sharing, and I do have the ability under the legislation to request certain information, but, obviously, it's about whether they can release it under their own governing Acts as well. And there is a level of, I guess, high level of information sharing, but in terms of being provided the detail, it really is dependent on those releasing agencies, and whether they're   they will provide that. 

MS EASTMAN:  Right. I want to ask you about the Guardian's role in relation to restrictive practices. And you've given an example in your statement at paragraph 41 on page 6 and following around a decision which you've described as restrictive practices decision in relation to Kaleb. I think I mentioned a moment ago QCAT granted an order that the Guardian could make decisions with respect to restrictive practices. And I wanted to ask you about this, because a restrictive practice itself may be a limitation on a person's human rights, and with the framework under the Human Rights Act operating in Queensland, how does the Guardian and your office work through meeting a human rights framework but at the same time making decisions to restrict somebody's rights through a restrictive practice? And if you want to take us to the example that you've given for Kaleb and speak to those human rights issues, I'll leave that open to you. I know there's a lot of material in your statement covering these two questions. 

MS SMITH:  I will begin by saying Queensland is the only jurisdiction where a Guardian can make a restrictive practice decision. In other States and Territories, that is generally made through a senior practitioner or clinical model. So, I think from the outset there's an inherent tension that a Guardian, who really is tasked with the promotion and protection of the rights and interests, is making a decision which is restricting those rights and interests.  Standing in the shoes of the person, it would be difficult to envisage that they would that own decision about themselves. So, there is that inherently tension at the outset. 

So, how we work with that is through the authorisation regime which set up in the Disability Services Act and also the Guardianship and Administration Act.  And the service provider that would like to utilise the restrictive practices makes an application and that   supporting that application, there is a positive behaviour support plan that needs to be submitted with that, and that outlines the behaviours, the incidents, because it has to actually relate to behaviours of harm. So, there has to be evidence supporting that. It can't just be something that is anticipated or a concern. 

And then also in conjunction with that, there needs to be positive behaviour support strategies because, ultimately, the objective, if there is a restricted practice in place, is the ultimate reduction and elimination of that restrictive practice. So, as you said, authorising that restrictive practice is a restriction on a person's human rights, and it needs to be, if approved for the shortest time possible. 

So, the example I've given in my statement relates to Kaleb and, as we heard Service Provider A previously talk about, the locked pantry and that the behaviours of harm of Kaleb was displaying related to seeking out that food, and if he was not supervised from doing that, there was the   there   I guess the issue where he would also eat inedible items such as packaging, and there's also the risk of choking because he would eat too quickly and the bite size pieces would be too large. 

So, they were the incidents that were provided as the behaviours of harm and how we follow our supported decision making framework and also the Human Rights Act and acknowledge that that is a limitation, that lock on the pantry, but we have to look at whether that is justified and proportionate in the circumstances.  And the justification is, well, the harm and the level of risk that Kaleb could experience could be actually very severe and significant. 

MS EASTMAN:  So how do you go about taking those considerations into account and having enough evidence to support the decision making, particularly in circumstances where you may not have any information about what the dietary arrangements were prior to their father's death, or Kaleb's father's death, and the way in which food and access to food was managed in the family home prior to the father's death?

How do you go about collecting the evidence so that you can work through that framework of deciding what's the right, could the right or should the right be impaired, and how do you take, as you've described, a proportionality analysis, so the least restrictive means directed to a particular purpose? How did you go about assessing the evidence in this example? 

MS SMITH:  Well, Kaleb is obviously expressing or communicating his desire to seek out that food. It is correct, we didn't know the exact circumstances of his background, but we knew enough so know that he had likely had that restriction in place and, therefore, he could be   his communication of wanting that food could be resulting from those circumstances. In conjunction with looking at that limitation, we did end up providing approval for that restrictive practice but only for four months, and within that time we conditioned that approval with needing further assessments for Kaleb by dietitians to understand why he might be seeking that food.  Is it sensory, is it another form of communication? Also through occupational therapists' reports and positive behaviour support specialists to determine the intentions of those behaviours and whether that limitation is something that in the future will be needed or can he learn other skills and be redirected through positive behaviour support? Does that answer your question? 

MS EASTMAN:  Then I'm going to get really practical. The problem identified is access to a pantry, and then Kaleb enters the pantry and has unlimited access to the food and non edible items. The solution seems to be restricting access to the pantry. A relatively simple thing, perhaps, having a lock or some other restriction on it. That decision to have a lock is a restrictive practice but what factors are taken into account in a very practical way to say this is the right form of practice, this is the least restrictive in the circumstances?

MS SMITH:  Yes, and that positive behaviour program does look at other strategies that can be used, and we rely on the advice from that specialist about whether locking the pantry at this point in time is the least restrictive, given the likely consequence of harm if that restriction isn't in place. So, alongside that, with the positive behaviour support strategies, I mean, they are your other alternatives. So, that could be through a redirection or through constant supervision, which is near impossible, or through, I guess, strategies that allow access at certain times and build up for longer periods of time.  But, ultimately, that information from that specialist tells us whether it would   the skills development at the moment is that   is that locking necessary to prevent the likely consequence of harm should it not be locked. 

MS EASTMAN:  And would a human rights approach say if that restrictive practice and limitation of rights is in place for a short period of time, it must be accompanied by the other actions   

MS SMITH:  Yes. 

MS EASTMAN:    in supporting the behaviours   

MS SMITH:  Yes. 

MS EASTMAN:    changing the patterns   

MS SMITH:  Yes. 

MS EASTMAN:    and reappraising whether the restrictive practice should remain in place after a period of time?

MS SMITH:  Absolutely. At the end of that four month period, if the service provider wanted a further approval, we condition that initial approval by saying you must provide a certain range of evidence in your next positive behaviour support plan, and that would also include articulating how the positive behaviour support strategies were used and whether they were effective and also what Kaleb's views were about that, how did he react to those different strategies and were they effective. 

MS EASTMAN:  So is that   if we step back from that and say what does this mean in terms of a human rights approach, the impact of the human rights approach, the impact of the human rights approach is to not just see the problem as accessing the pantry so automatically locking it, but it requires an understanding of what the impact of that decision or the restriction would mean for Kaleb in terms of communication, access to food sources, managing behaviours and also assisting him to understand what is happening and why that practice is in place at the time. 

MS SMITH:  Yes, I agree, and it can't be looked at in isolation. So, alongside that, in Kaleb's everyday life as we heard earlier, he is developing more daily living skills through choice of control around his home environment. He is actively participating with one on one sessions with a range of Allied Health professionals to build his communication skills and to understand what his sensory needs are. So, all of that is happening in combination. And when that is successful and we understand more about what Kaleb's needs and wants are, we're able to then tailor those strategies, those positive behaviour support strategies, so they're most effective for him with the view of reducing and eliminating that restrictive practice. 

MS EASTMAN:  So this is also an example where working in the Human Rights Act framework as a Public Guardian entity means you have to act consistently with the Human Rights Act but there is another entity, the Service Provider A, that is critical to Public Guardian effect to that human rights framework.

MS SMITH:  Yes. 

MS EASTMAN:  And I would imagine that in a lot of your work as a public entity applying human rights, you are engaging with a large number of entities that provide services and supports to people with disability who are not necessarily public entities. 

MS SMITH:  Yes. 

MS EASTMAN:  Unless they're performing a public function. 

MS SMITH:  Yes. 

MS EASTMAN:  They're functional entities.  There is a provision in the Queensland Human Rights Act that describe NDIS providers as, in some circumstances, being public entities. Have you had to navigate around the different obligations that might apply to the Guardian, Public Guardian as a public entity, but engaging with other entities that are not public entities and not necessarily subject to the same human rights obligations?  How do you navigate or put the bridge up between the public functions and then into these more private functions or private entities?

MS SMITH:  Yeah. 

MS EASTMAN:  And I'm looking at the Human Rights Commissioner, because I'm going to ask him that question as well. 

MS SMITH:  I think, legally, that's correct, that there is a difference between being a public entity and a non public entity, but human rights are human rights. So, we don't really draw that line.  In our promotion of a person's human rights, we would expect everybody involved in their life to also be promoting their human rights and if it's not technically the human rights under the Queensland Human Rights Act, there are a range of rights through the UN, you know, CRPD or also through the general principles in the Guardianship and  Administration Act which apply to everybody in relation to supporting people in their decision making and so on. So, it's not just limited, in my view, to public entities. 

MS EASTMAN:  Right. I want to turn to Jonathon. So, in terms of Jonathon, on 24 March 2021, QCAT made an interim order appointing the Public Guardian to support Jonathon to make decisions in relation to his services, including the NDIS, for three months.  Then on 23 June 2021, QCAT made an order appointing the Public Guardian for two years to support Jonathon to make decisions with respect to his health care, provision of services, NDIS and restrictive practices. And those   that arrangement is coming up for renewal; is that right? Fairly soon. 

MS SMITH:  That's correct. 

MS EASTMAN:  In June. And in terms of the Guardian's powers, functions and responsibility with respect to Jonathon, it's the same as Kaleb. It's the supported decision making wherever possible, but otherwise substitute decision making, and it's also the independent monitoring through Community Visitors. In your statement, you've set out the decisions that you have supported Jonathon to make or, in some cases, the substitute decision making in relation to his accommodation and also restrictive practices with him and the pantry, and his are slightly different and I want to come to that in a moment. 

So, I wanted to ask about this independent monitoring and the Community Visitor arrangement. Has that been a feature of supporting Kaleb and Jonathon, and, in particular, Jonathon who was a child at the time that his father passed away and then a few months or a month or so later then became an adult. So, his circumstances are a little bit different to his brother's circumstances at the beginning. 

MS SMITH:  Yes. My agency also administers the Community Visitor program and you're correct that as he was a child in care, he would have been visitable by the Community Visitors at a visitable site. And he was with   together with his brother at that time, so they did have that continuity in being able to visit them both when Jonathon was under 18, but also as an adult because they continued to live at a site which is deemed to be visitable. 

MS EASTMAN:  And you've set out the approach to the restrictive practices decision   and if I just say the pantry   in paragraph 73 and following in your statement.  And there has been a different level of communication and engagement with Service Provider A in relation to Jonathon's access to the pantry that, as at January this year, the Regional Manager, who's a delegate of your decision making, authorised the restriction of Jonathon's access to food in the pantry except during meal times, and it's conditional approval for a period of 12 months. And the factors that have been taken into account there are 12 months to see if the behaviours can be reduced and at the same time protecting Jonathon's rights and interests. So, again, that balancing act has come into operation. What was the different evidence or circumstances to be taken into account in relation to the arrangements for Jonathon and the pantry, which are different to his brother? 

MS SMITH:  Well, Jonathon does have different communication to Kaleb and also he wasn't responding as well to the positive behaviour support strategy which were trying to re direct his behaviour, his food seeking behaviour, when the pantry was unlocked. So, in considering that limitation, we needed to have a look at the evidence of the incidents of that food seeking behaviour, which was more often than Kaleb, and also his ability to be redirected from that behaviour. 

We saw that he really needed a longer period of time to be able to have a chance to develop the skills to be able to respond to that positive behaviour support.  Therefore, again given the harm that could be   could happen to Jonathon or could be experienced by Jonathon as a result of the pantry being unlocked and having unlimited access to the food, the harm was considered to be significant and therefore the limitation placed on his human rights was considered to be justified in the circumstances. And the consideration around the timing of that was for 12 months, to be able to obtain that additional specialised positive behaviour support therapy and also training of Service Provider A in those strategies to hopefully reduce and eliminate that restrictive practice. 

MS EASTMAN:  So how does it work in practice where one of the brothers no longer has a restrictive practice to the pantry but the other brother does? 

MS SMITH:  That is a very good question. There was   therefore when it is locked, we did identify that exact issue that that was also going to be an indirect restriction on Kaleb and we did   we have asked the service provider, in those circumstances, for information how they would reduce that limitation, and they've also worked with the NDIS Quality and Safeguard Commissioner around that, and the advice is that there can be a protocol developed to reduce that limitation in Kaleb. For example, things that could be done is that Kaleb can have his own mini pantry, for example, in   in an area that he can access at all times or whenever Kaleb requests to access the pantry, obviously, he is able to do that. So, there are   but I acknowledge that there is that indirect restriction when this happens with the co tenant and that would be in any co tenant situation. 

MS EASTMAN:  Right. I have two more questions I want to ask you about. And that is in relation to the Guardian's role.  We have explored in earlier hearings, particularly Public hearing 30 concerning guardianship and supported decision making, but also more recently in Public hearing 32 where we had the opportunity to speak to service providers.

About the role of independent advocates, I think in Public hearing 30 you might recall that there was some evidence that the Guardian is not the support coordinator. It is not   the Guardian is not there to necessarily advocate on behalf of the person for whom they are authorised to make substitute decision making, and for clients who are nonverbal   if I can use that shorthand description, as inadequate as it is   who may not be able to communicate their needs, their interests and their wishes in a way just to their own service providers, that there is a vital role for independent advocates to make these systems work, that system between Guardian and service provider, Guardian and client, and service provider and client. 

There's nothing we've seen in the material available to the Royal Commission that either Kaleb or Jonathon have had access to independent advocates consistently throughout the course of their life. I think there's some occasions where it's been suggested and maybe one or two occasions where someone's offered or been around, but not on a consistent level. To what extent, reflecting on the situation of Kaleb and Jonathon at the present time, is there a place for independent advocacy in their current arrangements?  That's the first question. And then secondly, what role, if any, do you have in the scope of your decision making to require those arrangements to be put in place? 

MS SMITH:  We do make referrals to independent advocates on behalf of clients, and then the independent advocate would work with the client to seek their direct consent to be their advocate. We don't make a service provision decision for an independent advocate provide those services. You are correct that Kaleb and Jonathon do not have an independent advocate at the moment but we would have no issue with an independent advocate working with them. 

MS EASTMAN:  And when I'm saying independent advocate, that's not criticising or at all suggesting that there's any deficiencies in their relationship with their current service provider. I think we've heard that their current service provider has enhanced the quality of their lives in many respects, but their own voices to support their choice and control and to help them develop the skills of decision making is an area in which, I think, on the material we have asked how would this happen and who would it take to put those arrangements in place? So that's   

MS SMITH:  Yes. 

MS EASTMAN:    something you can suggest but not require; is that right? 

MS SMITH:  That's correct. 

MS EASTMAN:  Ms Smith, you will be pleased to know this will be the last time in this Royal Commission that you will be required to give evidence, and, for my part, I thank you for being so cooperative with us each time we've asked you, often with very short notice, to prepare statements and to participate in our hearing. So, my thanks to you on behalf of the Counsel Assisting team and OSA. But the Commissioners may still have some questions for you. Thank you, Commissioner McEwin.

COMMISSIONER McEWIN:  Thank you. Thank you, Ms Smith. I will ask my colleagues if they have any questions. Commissioner Mason. 

COMMISSIONER MASON:  Yes. Thank you for your evidence this afternoon. Can I ask a general question. Listening to the service provider 1's evidence and also listening to Ms Hair's evidence this morning, these two young men are effectively now living in their own home. Whose responsibility is it in terms of keeping their eye on the detail that these young men are living in a home and not a house? Given the experience that they've had, their early life, whose responsibility is it to make a home and not just live in a house, and what does it mean to live in a home? 

MS SMITH:  I think it's all of our responsibility. I think it's important that   and this has been one of the, you know, the benefits of the NDIS, is that having lots of more people involved in their lives, I think that responsibility is shared. I think that primarily the service provider that has that daily and ongoing relationship has a large responsibility, but I would say that also a guardian has a responsibility in relation to their area of appointment to make sure that they're   for example, service provisions, they're receiving the services that they need. So, it's also a   I guess a slower process than something we might like for it to take. 

So, for example, we're at a point now, three years after our initial appointment, that we have a lot of rich information about Kaleb and Jonathon through knowing what their likes and dislikes are and their needs are in terms of sensory needs and their functional assessments and so on. And I think with that, it's really about building that pathway for them and that capacity development to make sure that it's not just more of the same. And that it is a journey for them that really makes their house a home but also their life full.

COMMISSIONER MASON:  An inclusive experience is what I think you were saying. 

MS SMITH:  Mmm. 

COMMISSIONER MASON:  Thank you. Thank you, Chair.

COMMISSIONER McEWIN:  Commissioner Ryan, do you have any questions?

COMMISSIONER RYAN:  Sure I think there will be something   in regard to the restrictive practice, I thought there was a very interesting thing you said at part 48 of your statement where you described what happened where you determined not to give permission for a restrictive practice that someone had applied for, and I thought it would be useful to actually have that in the public evidence in the transcript. Would you like to describe what happened with the application with regard to restricting   I think it was Kaleb's access to sharp knives and objects, a very common application, as I understand it, made in groups homes. 

MS SMITH:  Kaleb's, yes. Yes. So the original application was not only for a restrictive practice to lock the pantry, but also restricted access to sharp objects, being knives, and that that restriction was not authorised, and that is because the supporting positive behaviour support plan couldn't outline, I guess, enough evidence to support the needs for the use of that restriction. There were   there was some evidence that was provided that Kaleb liked to lick clean his knife, but in relation to there being a behavioural harm where the result might be significant harm in terms of risk, the evidence just did not support the restrictive practice being applied. 

COMMISSIONER RYAN:  I might just for a second   and I'm not saying I agree with this position but I think there might be people interested in hearing this question asked.  That's a pretty significant decision to make if that went terribly wrong.  How would you be sure that you had made the right decision if that went pear shaped at a later time?

MS SMITH:  And you're right, there is a risk assessment that must be made, and we do have   as part of our supported decision making frame, we do have a risk matrix, and it's really about what Kaleb has done in the past. Has he ever harmed himself as a result of that? Is it, you know, a butter knife that may be at the dinner table? And so it's looking at the evidence provided and making a determination, well, no, he has never harmed himself in the past from that behaviour; therefore, is that restriction to employ a restrictive practice to lock access to all of, you know, those utensils, is that appropriate and proportionate in this instance?  And it was decided that that it was not. 

COMMISSIONER RYAN:  Then the last witness explained to us   the service provider witness explained to us that Kaleb and Jonathon don't have a lot of contact with anyone else in their lives, and there was some interesting testimony given to us very early this morning from the neighbour who was asked a question:

    "As you know, Kaleb and Jonathon then moved from where they were living?"

And Ms Hair said yes:

    "And you haven't been able to have an ongoing contact with them or relationship with them?"

And she said no, and then she went on to say   Ms Eastman then said,.

    "And that's really a distressing thing for you as well?"

And Ms Hair said:

    "Yes, it's kind of like the end of the story that hasn't happened." 

I am aware, for various means, that there are quite often people who seem to have been important in people's lives, and the Public Guardian continues to play a role in separating those people.  And usually that means that they can't find them, they can't get their address.  It's usually said that it has to be protected for privacy. 

Now, I can't obviously make a decision in this case, of course, but is there not a way   is there more work we need to do in terms of this could be someone who could interact with them in a way which would extend   there appears to be someone who had a positive relationship with them, and yet they are now denied all access and there doesn't seem to be a route by which they can go through to restore that. Do you think we need to have some mechanism whereby people can at least make a reasonable assessment as to whether former relationships should continue? 

MS SMITH:  Yes, absolutely. I mean, we were not privy to that information. And we would absolutely want to support those social networks. I agree, and I think that if that information could be shared, it would be very valuable. So, I wouldn't   I wouldn't say that it's about denying those relationships because we don't even   we didn't even know that existed. 

COMMISSIONER RYAN:  Thanks. Mr Chair.

COMMISSIONER McEWIN:  Ms Smith, in response to Ms Eastman's question about independent advocacy and access, you responded to say you made a referral of an organisation to the service provider, and we've heard that Kaleb and Jonathon don't have access. What role do you take? Do you investigate to finds out why that referral hasn't happened or why a relationship hasn't formed between an independent advocacy and the clients? Did that not raise questions in your mind? 

MS SMITH:  So in referring to an independent advocacy agency, we would directly make that referral, and then if they   they contacted the client separately    I mean, we may follow up about that but, really, that becomes a direct relationship that we don't try and influence or control through our decision making.

COMMISSIONER McEWIN:  Why not? Wouldn't it raise questions though?  If you are trying to do everything you can in your power and responsibilities to give, say, Kaleb and Jonathon the best access possible to their lives, wouldn't that raise questions if that   if the referral went nowhere? 

MS SMITH:  Well, I think someone would see that as a conflict of interest if we had. So, we would really leave that relationship between the independent advocate and between Kaleb and Jonathon. So, we wouldn't be able to force, I guess, that independent advocacy service.  Does that answer your question?

COMMISSIONER McEWIN:  Almost. I'm just at the end. So, we've heard that some service providers prevent independent advocacy   advocates from having access, you know, coming onto the premises and having access to people living, for example, in group homes. 

MS SMITH:  Right.

COMMISSIONER McEWIN:  Would that raise questions in your mind?

MS SMITH:  Yes. Absolutely.

COMMISSIONER McEWIN:  Okay. Well, I'm putting that to you, and do you agree with that? 

MS SMITH:  Yes, if it was the service provider actively preventing access, then, yes, because we do have a role in a service provision's decision around the suitability of that service provider in providing services to Kaleb and Jonathon. So, that would be absolutely a consideration.

COMMISSIONER McEWIN:  Thank you. Thank you again, Ms Smith.  As both Ms Eastman and myself said, you've contributed substantially to the work of our Commission. So, thank you very much and again, I know the Commissioners are grateful for your contribution. 

MS SMITH:  Thank you.

<THE WITNESS WITHDREW

COMMISSIONER McEWIN:  You may be excused and now, Ms Eastman, next steps   shall we take a break. 

MS EASTMAN:  If we can take a very short break and resume at 3.25 = and that's a very short break   just to reconstitute the hearing room and Mr McDougall will be the final witness for the day.

COMMISSIONER McEWIN:  Sorry, I just missed what you were saying.  So it's nearly 3.25, so are you suggesting to come back at 3.30? 

MS EASTMAN:  I think I can agree for 3.30. 

COMMISSIONER McEWIN:  Alright. So I'm looking   my clock says 3.22.  So if you don't mind  

MS EASTMAN:  All right.  3.30?

COMMISSIONER McEWIN: We will come back at 3.30. 

ADJOURNED 3.23 PM 

RESUMED 3.30 PM

COMMISSIONER McEWIN:  Ms Eastman. 

MS EASTMAN:  Our final witness for the day is Mr Scott McDougall, and he is the Human Rights Commissioner.  Here in Queensland, and I think the Commissioner will take an affirmation. 

<SCOTT McDOUGALL, CALLED

COMMISSIONER McEWIN:  Mr McDougall thank you very much for coming. We're very grateful for your forthcoming contribution to our hard work and also the material that you provided. I should quickly explain I'm Commissioner McEwin, this is Commissioner Mason and Commissioner Ryan. I will now ask   yes, I will ask the associate to do the affirmation. Thank you. 

THE ASSOCIATE:  I will read you the affirmation. At the end please, say yes or I do. Do you solemnly and sincerely declare and affirm that the evidence which you shall give will be the truth, the whole truth and nothing but the truth?

MR McDOUGALL:  I do.

<SCOTT McDOUGALL, AFFIRMED

COMMISSIONER McEWIN:  Thank you. 

<EXAMINATION BY MS EASTMAN SC

MS EASTMAN:  Commissioners, there's no written statement. We asked the Commissioner to come and give his evidence orally today.  But in the hearing bundle, you have a copy of the Human Rights Commission's submission to the Royal Commission and a number of extracts and documents from the Commission's reports, and also guiding principles for public entities. I think you have an outline of the topics I would like to explore with the Commissioner this afternoon, but I want to start by introducing you to Commissioner McDougall. So, Commissioner, you commenced as commissioner on 8 October 2018?

MR McDOUGALL:  Yes. 

MS EASTMAN:  And at that time the Commission was still called by the name of the Anti Discrimination Commission of Queensland?

MR McDOUGALL:  Yes. 

MS EASTMAN:  And prior to your appointment as the Commissioner, you were the Director and Principal Solicitor at Caxton Legal Centre in Brisbane?

MR McDOUGALL:  Yes. 

MS EASTMAN:  And you held that position for some time; is that right? 

MR McDOUGALL:  Yes, much longer than I thought I would originally, yes. 

MS EASTMAN:  Well, I'm going to give it away by saying you were admitted to legal practice in 1993. 

MR McDOUGALL:  Yes. 

MS EASTMAN:  And much of your professional life has involved advocating on behalf of communities and conducting litigation, particularly in the areas of discrimination, native title, criminal law, guardianship and Coronial inquiries. 

MR McDOUGALL:  Yes. 

MS EASTMAN:  And you hold a Bachelor of Laws from Queensland University of Technology. 

MR McDOUGALL:  Yes. 

MS EASTMAN:  Now, you know that I want to ask you about the Human Rights Act. 

MR McDOUGALL:  Yes. 

MS EASTMAN:  The Commissioners held a Public hearing, Public hearing 18, some time ago in looking at the implementation on the Convention of the Rights of Persons with Disabilities into Australian law, and the Commissioners had the opportunity to look at some Australian models that existed at that time, in particular, the ACT Human Rights Act and, to a lesser extent, the Victorian Charter. Since that hearing, the Human Rights Act in Queensland has now come into operation and I wanted to ask you some questions about how the Act operates and specifically around public entities. So, the Act commenced on 1 January 2020; is that right? 

MR McDOUGALL:  The obligations commenced on 1 January 2020.  It actually commenced on 1 July 2019.

MS EASTMAN:  And all individuals in Queensland are said to have human rights as described in the Act?

MR McDOUGALL:  That's right. 

MS EASTMAN:  And the objects of the Act are set out in section 3.  And the principal objects of the Act are to promote   protect and promote human rights and to build a culture in the Queensland public sector that respects and promotes human rights and to help promote a dialogue about the nature, meaning and scope of human rights; is that right? 

MR McDOUGALL:  Yes. 

MS EASTMAN:  So the Queensland Act is based on what's commonly called a dialogue model and that's similar to the model in the ACT and Victoria? 

MR McDOUGALL:  Yes, and the United Kingdom as well. 

MS EASTMAN:  And the dialogue model, in a sense, is a model that looks at the protection of human rights by ensuring that the three principal arms of government are talking to each other. 

MR McDOUGALL:  Correct. 

MS EASTMAN:  So the Parliament in its role in considering, developing and passing legislation has human rights responsibilities to ensure that legislation passed by the Parliament considers and reflects and, as far as possible, is consistent with relevant human rights? 

MR McDOUGALL:  Correct. 

MS EASTMAN:  Then in that dialogue model, there is the role for the public service or the executive. The executive are that arm of government that often engage with the members of the public in the delivery of services. 

MR McDOUGALL:  Yes. 

MS EASTMAN:  Be it in transport, education, health, community activities, child protection and the like. And the dialogue model says that when the executive or the public sector are making decisions about us in the community or deciding policies that might impact on our lives, that as far as possible, they should act consistently in their decision making and policy making that is a way that gives effect to human rights. I'm paraphrasing it, but generally? 

MR McDOUGALL:  Yes, that's right. 

MS EASTMAN:  But who actually is covered by part of the executive, drills down to something called public entities?

MR McDOUGALL:  Yes, and they're defined in section 9 and 10. 

MS EASTMAN:  And I want to come back to talk about public entities in a bit more detail. But just keeping going on the dialogue model, there's also the role of the courts and   if I put tribunals in for present purposes   and that is that courts have a responsibility of giving effect to laws in determining the meaning of legislation, resolving disputes and particularly where courts have to make decisions about the way in which the executive have made their decisions, the dialogue model says that the courts need to be part of that conversation as well, and, as far as possible, interpreting legislation consistently with human rights. 

MR McDOUGALL:  Yes, and the courts are also found as public entity when they're acting administratively as well. 

MS EASTMAN:  So the idea is that if the arms of government are working together and that they are all having the human rights conversation, the hope is that that builds a human rights culture and that culture threads through the way in which government engages with the public, in this case, the public in Queensland? 

MR McDOUGALL:  Yes. 

MS EASTMAN:  But it's all about human rights. So, where do the human rights come from for the Queensland Act? Do these   and I can say this as a person from New South Wales, are these peculiarly and uniquely human rights for Queensland?  Or do they come from a range of sources?

MR McDOUGALL:  Well, they're drawn from the two conventions, the ICCPR and the ICESCR.  So, the economic, social, cultural rights that are in Queensland are right to health and the right to education.  Queensland also does have a right to property, which is a little bit unusual, which has gone from a universal declaration of human rights as well, but in totally there are 23 rights, and most of them are from the ICCPR. 

MS EASTMAN:  When you're talking about the ICCPR Commissioners, we're talking about the International Covenant on Civil and Political Rights, and that's an international law that Australia ratified in August 1980, and Australia's got international obligations under the shorthand ICCPR to ensure that the rights in that Covenant apply in Australia. 

It's the case, isn't it, that the ICCPR mostly focuses on a style of rights commonly referred to as civil and political rights?  So, they're sorts of rights that might be couched in the freedom to do things:  Freedom of movement, freedom of speech, freedom of association.  And it's also the types of rights that we might look at as procedural rights, so the right not to be arbitrarily detained, the right to not be arbitrarily arrested, a right to a fair trial, a right to fair conditions in detention. So, there's a real mixture of rights in the ICCPR; is that right? 

MR McDOUGALL:  Yes, and generally it's about telling authorities what they can't do without necessarily telling them what they ought to do, but there are some rights where there are positive obligations imposed. 

MS EASTMAN:  I think the old theory about the ICCPR was that people's human rights would be protected and respected if we just left people alone, so if government, in a sense, stepped back from interfering in people's lives, then those freedoms to go about their business or say what they wished to say were being protected.  But that theory, I think, has come under challenge in more recent times that if, for example, the right to a fair trial is a right that's effectively enforced, you can't just step back and do nothing. It requires some significant investment by the State to make a functioning justice system work. So, has Queensland taken the approach that civil and political rights are not the class of rights that you step back, do nothing and everything will be okay?

MR McDOUGALL:  Yes, and the Queensland Human Rights Act is due for a review after 1 July this year. I think it's fair to say that one of the issue will be looked at closely is the enforcement of the Act and the impact that the existing enforcement mechanisms have or don't have. 

MS EASTMAN:  The other Covenant that you referred to is the International Covenant on Economic, Social and Cultural Rights, and that's often seen as the twin to the ICCPR. Australia ratified ICESCR, if I can use that expression, before the ICCPR, but ICESCR is really around economic, social and cultural rights, and are these the types of rights that require government to be active in ensuring through its policies, practices and laws that the right to work, the right to education, the right to an adequate standard of living, the rights to participate in the cultural life of the nation require proactive action by government, and doesn't the Convention talk about progressively realising these rights? 

MR McDOUGALL:  Yes, because they are tied to resources, then the principle of progressive realisation is an important part of the implementation of them. 

MS EASTMAN:  And so these international rights essentially apply to the Commonwealth Government in terms of the obligations, but they've been drawn on to bring them into a particular Queensland focus; is that right? 

MR McDOUGALL:  Yes. So, the 23 rights that are protected are   yes, they're drawn to reflect Queensland's domestic implementation of those international instruments. 

MS EASTMAN:  And Queensland has some of the ICESCR rights in, for example, the right to education, that every child has the right to access to primary and secondary education appropriate to the child's needs? 

MR McDOUGALL:  Yes. 

MS EASTMAN:  And also the right to health services, so objection 37 provides the right that every person has the right to access health services without discrimination? 

MR McDOUGALL:  Yes. 

MS EASTMAN:  There is also rights in relation to the protection of family and children, and that's drawn on a right in the ICCPR, but it identifies the importance of families as a fundamental groups and the positive obligation attached to that right is the State to support functioning families; is that right? 

MR McDOUGALL:  Yes, in 26(1), and, you know, in the child protection context you've got 26(1) about recognising and protecting the family unit and then 26(2) about acting in the best interests of children, so they often had to be balanced against each other. 

MS EASTMAN:  So we know from the international law that particularly civil and political rights, with some very minor exceptions, are not considered to be absolute rights, and those rights can be limited in a range of different ways. Does the Queensland Human Rights Act have a provision setting out when and how any of the human rights that operate in Queensland can be limited? 

MR McDOUGALL:  Yes, section 13 is a general limitations clause which sets out the circumstances that can be considered in limiting   justifying a limitation on a human right. 

MS EASTMAN:  And that the way the limitation clause would operate is a little bit like the questions you heard me ask Ms Smith at a very localised level, and that is to be clear about the nature of the right, and, if there is a limitation, to really step through, by having the relevant evidence about why the right should be limited, the purpose for the limitation, the nature of the limitation, whether the limitation is necessary and, if so, in the least restrictive way. That's sometimes called a proportionality analysis; is that right? 

MR McDOUGALL:  Yes, and I think it's the real value of the Human Rights Act is introducing a requirement on decision makers to explore those reasonably available alternatives, and I think that   that is the greatest value of the Act. Because it would   it forces an exploration of other ways of achieving the same result that will have less impact on the dignity of a person. 

MS EASTMAN:  So, I want to then move to public entities. So, we'll just leave the judiciary and courts, tribunals to one side and parliaments to the other side, focus on public entities. This case study, as you know, is examining the experience of violence, abuse, neglect and, we submit, the deprivation of rights of two young Queenslanders.

And we've said to the Commissioners this morning that we think that the violence, abuse, neglect and deprivation of their rights could have been prevented and there are responsibilities now on public entities under the Human Rights Act that didn't exist for the whole of the period of time that we're looking at Jonathon and Kaleb's rights, but we wanted to understand what has changed for public entities in Queensland since the Human Rights Act has come into operation and to really have a sense for the Commissioners to see does a Human Rights Act make a difference? 

Now, I've asked you not to comment on the particulars of the case study, and you're not privy to all of the detail, but I want to ask you about the nature of public entities in Queensland and what makes something a public entity by reference to performing functions of a public nature. I think that's section 10 of the Act, but how do we work out whether something is or isn't a public entity?

MR McDOUGALL:  Well, government agencies are quite clearly public entity, and section 9 sets out who is a public entity. I think where there is potentially doubt as to who's covered as what is described as functional public entities who are entities that are performing services of a public nature on behalf of the State.  Registered NDIS providers are specifically included as public entities, but as I understand it, in practice, there are fair few disability service providers who are providing services that could potentially be question mark whether the services they are providing are of a public nature or not, so they may or may not be caught by the Act. There's also provision in the Act for those organisations that are perhaps in doubt as to whether they're caught by the Act to actually opt in and have that gazettal made by the Attorney General. 

MS EASTMAN:  So working out who's a public entity might be easy, for example, if it's the department of something or a particular statutory agency like the Public Guardian. The fuzzy area is where private bodies may be performing public functions. They may be subject to funding, wholly funded by public funds, or they may be working in partnership with a public entity, and so that division of what is the public entity's responsibility and the impact on the private entity delivering those services, for example, might carry through that function. So, the question of who is a public entity is a very fact specific question; is that right? You have to look at all the facts and the sources of power? 

MR McDOUGALL:  Yes, and ultimately hopefully we can come to a better   a court may be called upon to determine whether it is a public entity. 

MS EASTMAN:  As you've said that registered NDIS providers   and the Royal Commission has had a recent hearing about the distinction between registered and unregistered providers   they are identified as public entities in the Act if the NDIS provider is performing functions of a public nature in Queensland. Now, in the scenario that I've given to Ms Smith today is she is exercising functions as a public entity in performing her role and duties as the Public Guardian. Her decisions have to be implemented by a registered NDIS provider. Arguably, Service Provider A would be a public entity when doing the restrictive practices activities but may not be a public entity when doing other things. Is that the conundrum that might arise in what a public entity is? 

MR McDOUGALL:  Yes. That's a good example. 

MS EASTMAN:  Do you think that there is scope   and, again, if I'm trespassing into areas that you are not comfortable to speak about, please tell me, but is there scope for Human Rights Acts to be much clearer in the way in which particular services that have a public and private element could be described as the types of entities with human rights functions in a clearer and easier way? 

MR McDOUGALL:  Yes. I think so. And I think that will be an issue that will be picked up in the review of the Act as well. 

MS EASTMAN:  And in the work that you've done so far   and we've given to the Commissioners a guide to public entities in terms of toolkits, some of the fact sheets and the flow charts in looking at making decisions informed by proper considerations of human rights   have you had to develop anything for NDIS providers and how they may be drawn into the Queensland Act? 

MR McDOUGALL:  I don't believe we've developed any particular material specifically for NDIS providers. We haven't received, as far as I'm aware, a complaint about a NDIS provider, which   we haven't got our complaint mechanism yet, but that is a possibility, but   and I suspect that's because they are going to the NDIS Quality and Safeguards Commission. So, we   it hasn't presented a burning need for us to specifically target those providers. Obviously, there's good, you know, cause to but in terms of the complaints we've received   

MS EASTMAN:  And at an NDIS provider regardless of   in that, perhaps, that conundrum of are they or are they not, depending on what they're doing, that the provider itself guardian could opt in to be treated as a public entity? So, there's an opt in provision that any private organisation can say, "We want to join this human rights framework and this is our commitment to make our decisions to act compatibly with human rights." 

MR McDOUGALL:  Yes, and there's two organisations that have done that so far. 

MS EASTMAN:  Only two. 

MR McDOUGALL:  Yes. We're hoping to get a large one soon. 

MS EASTMAN:  Okay. So, that I hope, Commissioners, gives you a broad outline of the Act and the public entities operating, and we can look at that in a bit more detail in the document. I want to then turn to two things. One is what do you do if you think your human rights have been breached in Queensland?  And we have looked at the redress and remedies and complaints pathways in the Victorian and ACT settings, but there's some unique features, isn't there, in Queensland about what people can do if they think a public authority   sorry, public entity, has not acted consistently with their rights. How do people go about making complaints or raising concerns about their human rights and their relationship with public entities? 

MR McDOUGALL:  Well, essentially, there are two legal enforcement   sorry, well, two enforcement mechanisms. One is what they call a piggyback action. So, in section 59 of the Act, Queensland followed the similar provision in Victoria which provides for someone attaching a human rights argument to a pre existing independent cause of action, so it could be most likely judicial review or a discrimination complaint. So, they can raise a human rights argument if they have another cause of action. So, there's no direct cause of action in Queensland's Human Rights Act. 

MS EASTMAN:  Can I just pause you there. So, does that mean, for example, somebody with disability might feel that they've experienced disability discrimination and so they've got an action in relation to their rights under the Anti Discrimination Act and so in the process of seeking to enforce those rights, can they attach a human rights claim to their Anti Discrimination Act claim? 

MR McDOUGALL:  Yes, they could. So, for example, the right to humane treatment, which obviously isn't protected by the Anti Discrimination Act, they could raise that issue in proceedings before QCAT by piggybacking it onto the discrimination complaint.

MS EASTMAN:  I'm sorry for interrupting you at that point. I just wanted to clarify. 

MR McDOUGALL:  So, the second mechanism is the mechanism that's unique to Queensland, although I understand the ACT are bringing it in as well, and that gives a person who's aggrieved to   the ability to make a complaint to the Commission alleging that a human right has been unjustifiably limited by a public entity, and that will result in the Commission bringing the parties together and trying to resolve the complaint. 

There's no right of referral to a tribunal and I know many people think, well, that's really limits the enforcement options and the bargaining power of the complainant in that conciliation process. But the Commission does have the ability to publish a report under section 88(4) of the Act with recommendations about the steps the public entity should take in order to act compatibly with human rights in the future. So, so far we've published a number of those reports. 

The first was about hotel quarantine arrangements during COVID, and I think it's very early days of the Act. I think that mechanism has shown some promise, but it really hasn't been taken up in the way that I think it was anticipated to be taken up in terms of operating as a genuine enforcement mechanism for the Act. 

MS EASTMAN:  So the right arises if I'm a person with disability and I think a public authority has made a decision that restricts my rights, and I can challenge that restriction by making a complaint to your Commission. As the person with disability do I have to prove that the restriction unreasonable or disproportionate? Do I have to prove anything if I'm going to make a complaint to you? 

MR McDOUGALL:  No, the Commission is not going to make any findings of fact. Our role really is to bring the parties together. I guess   I give you one example. During COVID, this mechanism actually did prove really valuable because we were able to take complaints. Our complaint handling mechanism is a bit more flexible under the Human Rights Act than under the Anti Discrimination Act so we could respond to the complaint more flexibly, and we did have cases where families with children with   living with disability with high needs were able to be moved out of inappropriate quarantine arrangements, and put in more suitable arrangements within hours which really did underline the effectiveness of the Act. 

MS EASTMAN:  So, if the conciliation works well, then the person making the complaint can reach an agreement of the right outcome for them without having to wait for somebody to make a decision about it, but they negotiate what the outcome should be; is that right? 

MR McDOUGALL:  Yeah, look, I wouldn't want to set an expectation that we're going to resolve complaints within hours, but in that particular situation because of the processes we had set up with Queensland Health, who were   and the relationships we had built, we were able to pick up the phone and say, "Look, this family is in this situation.  Can you fix this?" But there's no reason why we couldn't operate similarly in other circumstances. 

MS EASTMAN:  Well, in circumstances where the subject matter of your complaint is an unfair, unreasonable or disproportionate impact or restriction of rights, having a mechanism that you can get a relatively quick remedy would be important, would it not? 

MR McDOUGALL:  Absolutely. 

MS EASTMAN:  And is a process of conciliation generally something that yields quick and effective remedies for people? 

MR McDOUGALL:  Look, you know, if you spoke to people who have lodged complaints with the Commission in recent times, because of the backlog we've experienced, I'm sure they would be saying it's not fast, but sometimes it can be if it's urgent, and we will certainly prioritise urgent complaints. Yeah.

MS EASTMAN:  What if I come along and I'm hopeful of a conciliated outcome, but there's a whole lot of information I don't know about as the complainant that the government is aware of, and the government just says, no, this is the decision it is and there's no hope of conciliating or reaching an outcome. What happens in those circumstances? Can I get more information from the government to understand the government's position?  Or can I say I think I want to take this to a court or tribunal to really test what the government said? 

MR McDOUGALL:  So for a human rights complaint, the Commission does have the capacity to make requests for information. So, if it thought that it was going to assist the conciliation to access that information, it could make the request of the public entity.  But there's no right of referral to a court. So   and we   I have to say, in recent, times we're experiencing greater pushback from public entities and more reliance on Crown Law lawyers to engage in a legalistic way rather than a problem solving way. 

MS EASTMAN:  I won't ask you to go into any details of any matters of that kind, but do you think that, from a broader, stepping back, a human rights framework, that there needs to be another step beyond conciliation to achieve the types of rights in Article 2 of the ICCPR, which is a substantive right to an effective remedy? Is stopping at conciliation an effective remedy?  And if not, what do you think   if you can comment on this, what do you think needs to be in place in the Human Rights Act to bed in that effective remedy? 

MR McDOUGALL:  Look, in my view, there needs to be a direct cause of action.  Exactly where to, I think, would need to be worked out. At the time that the Parliament was considering introducing a Human Rights Act in Queensland, there was a former Supreme Court judge, Chesterman, who made an observation   and he was actually not in favour of introducing a Human Rights Act, but he did make the point, and it really resonated with me, that a right that's not enforceable is not much of a right. And that   I think there's a lot of truth in that, and it does go to how much we value human rights as to whether we're actually prepared to allow citizens to access the courts to enforce them. 

MS EASTMAN:  So is that something that might be considered when Queensland does a review of the Human Rights Act, the effectiveness of remedies? 

MR McDOUGALL:  It was certainly part of our submission. 

MS EASTMAN:  I'm just conscious of the time, and the last topic I wanted to talk to you about is based on the Commission's experience now over a number of years of building what might be described as a rights based culture and embedding that into decision making, organisational culture, even attitudes around rights and what they mean, transparency and accountability, continuous improvement, and no doubt some ongoing barriers in achieving that. I'll just pass over to you to tell the Commissioners about what you've learnt over the last few years about a Human Rights Act supporting this embedding of the culture and changes in Queensland. So, what differences it made, what can these Commissioners take into account when they're thinking about improving the rights of people with disability? 

MR McDOUGALL:  So, I should say that before   I should have mentioned this earlier   before we can entertain a complaint, a person does have to first complain to the agency, and   unless it's exceptional circumstances.  So, that in itself has led to public entities looking at their complaint mechanisms, and I think that there has been some improvement in the way that public entities are handling their internal complaints so that they don't find themselves in the situation where a complaint progresses to a human rights complaint. 

I think that   I think there were 220,000 plus public servants in Queensland, and then you've got all the other public entities as well. So, educating all those public entities about their obligations under the Human Rights Act is a huge task, and the Act itself   and human rights can easily overwhelm people. So, in the first year of the Act, I think I did something like 50 different talks. I was doing one every second day and having to learn about the rights that were engaged by particular agencies.  And that's a task that agencies have had to come to grips with, what are the rights that are going to be engaged in the work that we do and the decisions that we make, and how do we, you know, ensure that we're acting compatibly when we're doing that work. 

And, obviously, the higher the level of decision making and the greater the impact on people's rights, the greater the expectation and the quality of the decision making needs to be, and that's been reflected in decisions, including the Owen D'Arcy decision. So, when you've got people on the front line and trying to educate police officers, for example, about their obligations under the Human Rights Act, it's a big challenge, I think, to get them to understand the subtleties of section 13, proportionality analysis. 

What I've tried to say to people is, you know, at that level, if you're getting overwhelmed, just think "dignity", because proper consideration is think, and when you boil down human rights, at the heart of all of them is the dignity of the individuals who hold those rights. So, that's about as simple as I can reduce it, is to "think dignity". But just getting that message out, I think, is really important.

And over time, I think the role of courts in developing a strong human rights jurisprudence   so I'm about to deliver a paper to the North Queensland Law Association where I'm going to be telling them we need to dial up the dialogue in the model, and to do that we really do need a strong jurisprudence that sits behind the rights.  And it's only when that happens, I think, when those involved in making the decisions and acting on the ground know that there is a level of accountability that will flow from their choices and the actions that they make when they're considering the dignity of the person on the other end of that I shall decision. It's only at that point where we really see a strong culture emerging and change happening. 

MS EASTMAN:  I'm sure the Commissioners have got some questions, if you can spare us just a little more time for any of the Commissioners' questions or comments. Thank you, Commissioner. 

COMMISSIONER McEWIN:  Thank you, Ms Eastman. Thank you, Commissioner. I'll ask my colleagues if they have any questions. Commissioner Ryan. 

COMMISSIONER RYAN:  I don't. But thank you for your evidence this afternoon.

COMMISSIONER McEWIN:  Commissioner Mason. 

COMMISSIONER MASON:  Commissioner, thank you for your evidence. Very clear and concise and very thoughtful. Thank you very much. 

MR McDOUGALL:  Thank you.

COMMISSIONER McEWIN:  I do have some questions. We're not letting you off the hook too quickly. A couple of things. One is in terms of how the Queensland government engages and includes the voices of people with disability in terms of monitoring the Act, how do you think   do you have any comments or views, how well are they doing it? Is there room for improvement? Are there things that we can model for our own final report?

MR McDOUGALL:  I think the position paper that the National Commission has produced on the national framework does include a proposed duty of participation, and I think that is again something that could be looked at in the review of the Queensland Act. I think there's a responsibility on governments to ensure that they are engaging with organisations representing people living with disability. I do know that Queensland Disability Network, for example, does have a very strong relationship with government and works closely with my organisation. And I will expect they would play a significant role in the review of the Human Rights Act as well. So, I hope that answers your question, Commissioner.

COMMISSIONER McEWIN:  Thank you. My other question relates to your answer to the last question from Ms Eastman.  In particular, I was struck by your response around recognising the dignity of the rights holder. In this Royal Commission, we've heard many different views about interpretation of human rights. Now, to be clear, I'm not asking you for your view on how we interpret a particular human right. I'm interested to know from you, what are the success factors to bring people along that conversation and that dialogue? And you mentioned, for example, police officers and explaining to them. What are some of the more success factors that you've observed or you think we could consider to try and get to what I would describe as realisation of human rights? 

MR McDOUGALL:  That's a very good question.

COMMISSIONER McEWIN:  It's a very broad question, I acknowledge. 

MR McDOUGALL:  Yes. I do think it is about empathy. It's essentially a framework for empathetic decision making. The more that you can convey to decision makers and try to get them to put themselves in the position of the people at the other end of their decision making, I think the more likely you are to get them to give proper consideration to human rights. And I refer to dignity, because I think that everyone understands when their own dignity has been trampled on. I think everyone really gets that.  Obviously, it's not the only principle underpinning human rights.  It's freedom, respect, equality, dignity and also autonomy, which is obviously a major part of the principles in the CRPD.  But I do think that dignity is something that people do innately understand.

COMMISSIONER McEWIN:  Thank you. To close that off, you talk about empathy and empathetic decision making. If you can't, for example, achieve that in, say, a room or particular individuals or people you're talking to, what would be one or two other considerations to try and get, you know, more progress? 

MR McDOUGALL:  Litigation. I do think there needs to be consequences for flagrant breaches of human rights, and at the moment, we do have limited mechanisms available under the Act. 

COMMISSIONER McEWIN:  Thank you. Ms Eastman, can I check with the parties with leave to appear if they have any questions? 

MS EASTMAN:  I don't think they do.

COMMISSIONER McEWIN:  No. Alright. Thank you. Commissioner, thank you very much for your very important contribution, particularly the insight you have provided us with how the Queensland Human Rights Act has been implemented here in Queensland. So, thank you very much. 

MR McDOUGALL:  Thank you. 

<THE WITNESS WITHDREW

COMMISSIONER McEWIN:  Ms Eastman, are there any other matters that we need to consider before we adjourn? 

MS EASTMAN:  No. No other witnesses for today. That concludes today's proceedings and if we can resume tomorrow morning at 10 am.

COMMISSIONER McEWIN:  Thank you. We will come back tomorrow at 10 am. 

ADJOURNED 4.12 PM