Public hearing 15: Criminal justice system - Day 1

CHAIR:  Good morning, everybody.  From the splendid isolation of the Sydney hearing room of the Royal Commission, I extend a warm welcome to everybody who is participating in or following this, the 15th public hearing of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People With Disability.  We begin, as always, with an Acknowledgement of Country by Commissioner Andrea Mason OAM who joins this hearing from Canberra, having travelled from Alice Springs to do so.  Commissioner Mason.

COMMISSIONER MASON:  Thank you, Chair.

We acknowledge the First Nations people as the original inhabitants of the lands on which this hearing is sitting. 

Nganana tjukarurungku kalkuni Anangu kuwaripa tjara nyinantja tjuta, ngura nyangangka. 

We recognise Meeanjin, Brisbane. 

Nganana ngurkantananyi ngura Meeanjin-nga Brisbane-ta. 

We recognise the country north and south of the Brisbane River, as the home of both the Turrbul and Jagera nations. 

Nganana ngurkantananyi karu panya Brisbane River-nya alintjara munu ulparira Anangu nguraritja tjuta nyinantja munu kuwari nyinanyi Turrbul-nga munu Jagera-nya. 

We pay respect to the Gadigal people of the Eora nation. Their land is where the city of Sydney is now located.

And we pay acknowledgement and respect to the Ngunnawal people their land is where the city of Canberra is now situated.

We pay deep respects to all Elders past, present and future and especially elders, parents and young people with disability.

OPENING STATEMENT BY CHAIR

CHAIR:  Thank you, Commissioner Mason.

We all know only too well that this public hearing is taking place in the shadow of a resurgence of COVID 19 in various parts of the country.  Sydney, Melbourne and regional areas in New South Wales are currently subject to lockdown.  Brisbane, Adelaide and other places have recently experienced lockdowns for varying periods.

 
It seems that no part of Australia is immune from the threat of a lockdown being imposed with little notice.  The organisation of a public hearing in such extremely challenging circumstances is a major undertaking.  I wish to express my appreciation and that of Commissioners Mason and McEwin, to all the people within the Royal Commission and outside who have worked so hard and creatively to ensure that this hearing can proceed.

Because of the complexity of the technological arrangements that have had to be put in place, there may be interruptions from time to time in the proceedings.  We ask for your patience and understanding if and when this occurs.  The hearing will be conducted from the Royal Commission's hearing room in Brisbane.  It is symbolic of the difficult times we are enduring, that none of the three Commissioners participating in the hearing is in fact in Brisbane.

As I have mentioned, Commissioner Mason is in Canberra.  Commissioner McEwin and I are in Sydney, but in different locations.  Senior Counsel Assisting the Royal Commission, Dr Kerri Mellifont QC, is in our Brisbane hearing room and she appears with Ms Janice Crawford and Mr Ben Power of counsel.

Six parties have been granted leave to appear at the hearing: The Commonwealth, the States of New South Wales, Victoria and Queensland, the Northern Territory and the New South Wales Public Guardian. I shall take the appearances a little later.

This hearing will last for two days only, today and tomorrow.  Counsel Assisting will shortly provide more details of the evidence that is to be adduced.  However, we shall hear from six witnesses, the documentary evidence in relation to statements will also be tendered.

Let me deal with the subject matter of the hearing.

This hearing is very closely linked to public hearing 11, the first hearing of the Royal Commission held in 2021. Public hearing 11 was in fact held over seven days from 16 to 25 February 2021. The focus of that hearing was the experiences of violence, abuse, neglect and exploitation of people with disability, especially people with cognitive disability in their interactions with the criminal justice system.

Public hearing 11 primarily focused upon the experiences of two people with cognitive disability, Melanie and Winmartie. Both had been unfit to plead to charges of criminal conduct and were tried in what are called special hearings.  As a consequence they had been and continued to be detained for extraordinarily long periods, far longer than if they had been convicted of the offences with which they had been charged.

In my closing remarks at public hearing 11 I observed that it was incontrovertible that Melanie and Winmartie, both of whom have extremely complex needs, had endured conditions to which no person in Australia should ever be subjected, let alone people who have not actually been convicted of a criminal offence.
 

These two case studies illustrated important issues that go to the heart of the work of the Royal Commission. As we heard during public hearing 11, people with cognitive disability are over represented in the prison system and in custodial settings. We have known for a very long time in this country that First Nations people are massively over represented in the prison population and in custodial settings. It is therefore hardly surprising that First Nations people with cognitive disability are also over represented in prison and custodial settings.

An overriding theme that clearly emerged from the evidence is the extent to which disability is effectively criminalised in Australia.  Criminalisation of disability occurs when the criminal law and associated policies and practices respond to certain characteristics and behaviours of people with disability, especially people with cognitive disability, thereby increasing the chances that those people will become enmeshed in Australia's criminal justice systems.

The fact that people with cognitive disability, and particularly First Nations people with cognitive disability, are over represented in prisons and custodial settings, clearly raised many difficult policy questions that were the subject of evidence at public hearing 11. For example, how do we as a community consistently, with public safety, prevent people with cognitive disability, especially First Nations people, from coming into contact with the criminal justice system in the first place?

If people with cognitive disability are incarcerated, whether as the result of a conviction or otherwise, what culturally appropriate supports should be provided to maximise the opportunities for rehabilitation and successful integration or reintegration into the community?

Today's hearing is primarily concerned with the second of these questions. As has previously been announced, this hearing will examine, first, the division of responsibility between the Australian government on the one hand and State and Territory governments on the other for providing supports and services to people with cognitive disability who are enmeshed in the criminal justice system.

Secondly, the role of the National Disability Insurance Scheme, the NDIS, in assisting people with cognitive disability to transition from prison or custody into the community.

We have heard in other Public Hearings about the difficulty in drawing the dividing line between the Commonwealth's responsibilities and the responsibilities of the States and the Territories. The interface between the NDIS, primarily a Commonwealth responsibility, and the criminal justice system, primarily the responsibility of the States and Territories, is a particularly acute example of this difficulty. The complexities of our Federal system can sometimes bear harshly on the wellbeing of people with disability.

Let me say something about the present position of the Royal Commission.  The  
Royal Commission will shortly publish our Fourth Progress Report. Our Progress Reports are published at intervals of six months. The Fourth Progress Report will cover our activities for the six month period ending on 30 June 2021. I recommend that report to anybody who is interested in following the progress of the Royal Commission. It will give detailed information about our activities during that period.

I do however wish to make an important point about our program in the context of the ongoing pandemic. In my opening address for public hearing 11, I expressed the fervent wish that 2021, despite its inauspicious start on the COVID 19 front, would prove to be more tranquil, stable, healthy and productive than its predecessor. That fervent hope has not been realised.

The Royal Commission has been forced to postpone two hearings. The present hearing was originally scheduled for 23 and 24 June 2021, but could not proceed on that date because of the restrictions then in force. Public Hearing 19, which was formerly described as Public Hearing 15, on the measures taken by employers and regulators to respond to systemic barriers to open employment for people with disability, has had to be postponed from 28 July to 22 November this year.

The employment hearing, that's the hearing I've just mentioned, had been very carefully planned on the basis that many witnesses, most of whom are to appear in panels, would give their appearance in person in Melbourne. The delayed hearing will be held but it may well have to be converted into a virtual hearing which is not necessarily a straightforward task.

Public Hearing 16, on First Nations children with disability and out of home care, is scheduled to commence in Alice Springs on 17 September. A vast amount of work has gone into preparing this hearing. If necessary, we will move mountains to ensure that it goes ahead, but in the current climate we have to say nothing is certain. It will be recalled by those who have been following the Royal Commission that the Australian Government, and its State and Territory counterparts, have extended the date for presentation of the Royal Commission's Final Report to 29 September 2023.

This is 17 months than the date originally fixed in the Letters Patent. The request for an extension was essentially based on two factors. First, the magnitude of the task that had been entrusted to the Royal Commission under the Terms of Reference and, secondly, the extensive disruptions to the Royal Commission's program in 2020. Those disruptions included a period of six months during which we could not hold any public hearings at all.

The recent resurgence of COVID 19 shows little sign of abating in the short term, at least in New South Wales and possibly elsewhere. Not only has it forced us to postpone hearings, but we have had to suspend private sessions conducted in person. Private sessions conducted with Commissioners remotely continue, but many people understandably requesting a private session prefer to meet in person.

Working from home no doubt has its attractions, it has been the subject of much  
discussion. Perhaps post pandemic it will become the norm in some occupations, but in a complex, multi faceted and interdisciplinary endeavour such as this Royal Commission, the inability of people to meet face to face on a reasonably regular basis, takes a significant toll. So too does the difficulty of engaging personally with potential witnesses, not least, people with disability themselves.

The staff of the Royal Commission and Counsel Assisting have done magnificent work to keep us on track as far as possible, but I think it's fair to say that no similar or comparable Royal Commission has ever had to face challenges of the magnitude posed by this pandemic.  It is idle to pretend that the continuing delays and disruptions caused by the pandemic will not have a significant effect on the Royal Commission's program.  We have always said that difficult choices will have to be made in determining the subject matter of hearings because of the breadth of the responsibilities the Royal Commission has to discharge.

Those choices may turn out to be more limited and more difficult than we had hoped or that people outside the Royal Commission have expected.  The Royal Commission would not have reached this point without the remarkable dedication, commitment and skills of our staff and Counsel Assisting.  Equally, the Royal Commission would not have made the progress we have without the contributions of thousands of people.  People with disability and their families and supporters, disability representative organisations, advocates, experts, government representatives and other stakeholders, all of whom who have contributed in very important ways.

I have no doubt that these indispensable pillars of the Royal Commission will remain firmly in place.  They will get us through the difficult times.

Dr Mellifont, would you like to announce appearances and then I think it may be convenient to take the appearances of the parties who have been given leave to appear, given that they will be scattered all over the place.

DR MELLIFONT:  Thank you, Chair.  I appear with Ms Janice Crawford and Mr Ben Power of Counsel.  The three of us are in the hearing room in Brisbane.

CHAIR:  Thank you, Dr Mellifont.

I will start with the Commonwealth of Australia.  Is there an appearance for the Commonwealth of Australia?  Either there is not or the communication system has broken down.

DR MELLIFONT:  I can see Mr Arnott SC of Counsel on one of the video screens.

You are on mute, Mr Arnott.

CHAIR:  Maybe you are on mute.  All right.  I can see lips moving.  So I will take that as an announcement of an appearance and we will come back to you when we can hear you.
 

DR MELLIFONT:  I understand Mr Arnott is instructed by Gilbert + Tobin for the Commonwealth.

CHAIR:  Thank you very much.  New South Wales.

DR MELLIFONT:  Can't hear you, Ms Furness.

CHAIR:  Ms Furness, you weren't on my audio.  I will take it that you've announced your appearance with Mr Glover.  Is that correct?  Thank you.

DR MELLIFONT:  Instructed by the New South Wales Crown Solicitor, Chair.

CHAIR:  Thank you.

MR ARNOTT:  Can you hear me now?

CHAIR:  I can hear you now, yes.

MR ARNOTT:  Yes, may it please the Commission, my name is Arnott, I appear for the Commonwealth of Australia with my learned friend Mr Dighton.  He is located in Brisbane and I'm located in Sydney.  We are both instructed by Gilbert + Tobin.

CHAIR:  Thank you very much.  I'm very pleased that we can hear you.

MR ARNOTT:  Thank you.

CHAIR:  Is there an appearance for the Northern Territory?  There may not be.  I'm not sure.

DR MELLIFONT:  Certainly tomorrow there will be.

CHAIR:  There will be?

DR MELLIFONT:  There certainly will be tomorrow.

CHAIR:  If there is in fact someone from the Northern Territory, they can announce their appearance later or alternatively tomorrow as Dr Mellifont indicates they are likely to be present.

Is there an appearance for Victoria?

MS BEDFORD:  Thank you, Chair, my name is Rebecca Bedford from MinterEllison, and I appear on behalf of the State of Victoria.

CHAIR:  Thank you very much, Ms Bedford.

 
Queensland, Ms McMillan, I think.

MS McMILLAN:  Yes, good morning, Chair.

CHAIR:  Good morning.

MS McMILLAN:  I appear with Ms Clohessy instructed by Crown Law.

CHAIR:  Thank you, Ms McMillan.

Is there an appearance on behalf of the New South Wales Public Guardian?  Ms Needham, I think.

MS NEEDHAM:  I appear for the New South Wales Public Guardian and the acting CEO Ms Osborne, my name is Needham and I'm instructed by Mr Griffiths.

CHAIR:  Thank you very much, Ms Needham.

All right.  Dr Mellifont.

OPENING STATEMENT BY COUNSEL ASSISTING

DR MELLIFONT:  Thank you.  We acknowledge and pay our respects to the custodians of the various lands on which we participate in this public hearing.  We pay our respects to First Nations Elders past and present as well as to all First Nations people involved in and following this public hearing.

This is the 15th public hearing of this Royal Commission, and the second to focus on criminal justice.  The hearing is being held in Brisbane and Sydney, and while the hearing rooms are closed to the public due to the pandemic, the hearing can be followed online by webstream.

As the Chair has indicated, over the next two days we will hear from six witnesses.  This hearing builds upon the issues previously explored in public hearing 11 and on issues we have otherwise heard about through submissions, responses to issues papers, and our community engagements with people across Australia about the experience of people with cognitive disability in the criminal justice system.

We thank everyone who has engaged with the Royal Commission so far and we continue to welcome contributions from anyone who wishes to talk to us.  This hearing will include accounts of violence, abuse, neglect and exploitation of people with disability and may include references to suicidal self harming behaviour.  If this evidence raises concerns you can contact the National Counselling and Referral Service and towards the end of this opening there will come up on screen some contact details, but I will read the number now for that referral service.  1800 421  
468.

I hand now to Mr Power.

CHAIR:  Yes, Mr Power.

MR POWER:  Commissioners, this hearing is part 2 of public hearing 11 which had, as its focus, the involvement of people with cognitive disability in the criminal justice system.  During the opening of public hearing 11, we stated that some of the evidence in the hearing spoke of people's experiences trying to access services from States or through the National Disability Insurance Scheme, and the sense by some of responsibility being shuffled between the two.

We indicated that there would be a second part of the hearing to allow the government parties the opportunity to respond to the issues raised about the transition to the NDIS and its interfaces with the criminal justice system.

Since public hearing 11, the Royal Commission has sought and received information from various governments on this subject.

The governments have had the opportunity to place before the Royal Commission any material they wished to respond to the evidence adduced in public hearing 11.

The scope and purpose of this hearing can be summarised by three points.

One, the approach of the Commonwealth, State and Territory governments to the division of responsibility for providing supports and services to persons with cognitive disability involved in the criminal justice system.

Two, barriers to people with cognitive disability involved in the criminal justice system in accessing the NDIS, including with respect to transition out of custodial environments.

And, three, the NDIS guidelines and policies so far as they relate to people with cognitive disability and the criminal justice system.

As the evidence in public hearing 11 made clear, without sufficient support people with cognitive disability can become enmeshed in the criminal justice system.

Some types of support which help a person with cognitive disability from becoming enmeshed, that is from cycling in and out of the criminal justice system, include diversionary programs, therapeutic supports and wrap around support in the community to assist the individual with their housing, health and other needs.

Where such supports do not exist or aren't provided or have barriers to them being accessed, then the reverse may occur; that is, the person with cognitive disability may become enmeshed within the criminal justice system with all of the adverse  
effects of that person and for the community as a whole.

The evidence in public hearing 11 revealed anecdotal accounts of the difficulties with accessing support through the NDIS, including the problem of thin and/or non existent markets.  The term "thin markets" has been described by the Department of Social Services as inadequate service availability resulting in participants’ needs not being met.

This problem, in the context of the justice system, is a matter that we will consider in this hearing.

As at 8 August 2021, the Royal Commission has received 2,855 submissions.  Of those, 786 discuss the NDIS and the NDIA, that is, 28 per cent of all submissions.  159 submissions discussed the NDIA/NDIS and also related to the justice domain, that is, 6 per cent of all submissions received.

There were 204 submissions that centred on the stories of First Nations people with disability.  Approximately one quarter of those, that is 48 submissions, or 24 per cent, discussed the NDIA.  That illustrates how important this is to First Nations persons with disability.

Commissioners will recall that we heard from a number of lived experienced witnesses in part 1 of the hearing, that is public hearing 11.  In part 2 of the hearing, which we are calling -public hearing 15 although the two are integrally linked, we will receive evidence from New South Wales, Northern Territory and the Commonwealth representatives as to their understandings of the funding and support obligations of their respective governments.

We will also hear again from Ms Osborne who is the acting CEO of the New South Wales Trustee and Public Guardian, and who remains the guardian for Melanie.

Before moving to a more detailed opening of the evidence in this public hearing 15, we outline the issues we identified as emerging from the evidence of public hearing 11.

The key themes from public hearing 11 are as follows: there is no doubt that people with cognitive disability and particularly First Nations people with cognitive disability are over represented in the criminal justice system.

Early intervention and the provision of disability appropriate support at all stages of the criminal justice system may operate to reduce that over representation.  We heard striking examples from Professor Baldry about the economic cost/benefit of early intervention and support for persons with disability who otherwise are likely to be imprisoned or hospitalised.

Whilst it is acknowledged that there have been considerable efforts in some quarters to provide that early intervention and appropriate support, there is a need for much  
more early intervention and much more disability appropriate supports and culturally safe and competent supports at all stages of the criminal justice system.

Programs and services that address the needs of people with cognitive disability can result in cost savings over the life course of a person with disability and provide significant benefits to the community, not least of which is the reduction in recidivism by the individual.  The potential worth of proper wrap around support encompassing all aspects of the person's life, with a stress on housing and health, cannot be overestimated.

The short term funding of programs and services makes it difficult to build institutional knowledge and effect lasting changes.  Forensic orders for people with cognitive disability who have been found unfit to be tried or not guilty by reason of mental impairment need to be therapeutic rather than punitive and, in that regard, delivered by clinically competent persons.  The orders must have transparent and accessible systems of review.

The solitary confinement of people with cognitive disability is significantly more likely to cause harm than good.  Long term solitary confinement is no solution to caring for a person with disability who has complex needs.  We heard the heartfelt gratitude of Melanie being moved out of the solitary confinement in the ward.  If we can now play an extract of Melanie's evidence which will take approximately one minute.

[VIDEORECORDING PLAYED]

MELANIE:  ..... over eight years, not one in day in my life that I didn't want to get out and have a life and be happy again on the ward.  But then the kindness of nurses in the Forensic Hospital finally got me out, um, after eight years because I showed a big progress in transition into my behaviour in seclusion and out of seclusion for the amount of periods of time that I was allowed out for, an hour a day.  And then I transitioned so quickly that, um, I was amazed and everyone has been amazed now for how long?  About a week?  A week.  A week.

[VIDEORECORDING ENDED]

We also saw the benefits that flow from the provision of support in the example of Winmartie, particularly when such support permits him to visit country.  What is shown on the screen is a photo of Winmartie out on country.

Winmartie is also a talented artist and what is now shown on screen is a painting which was one of a number of paintings that Winmartie provided to the Royal  
Commission.

Turning from those two case examples, there is a lack of usable, adequately disaggregated data about people with disability across all areas of the criminal justice system.  As a result of that lack of data, there is limited targeted research with respect to people with cognitive disability and First Nations people with cognitive disability in the criminal justice system.

The evidence that does exist disclosed that with proper support, persons with disability can avoid and/or escape enmeshment in the criminal justice system.  The witnesses we heard from in public hearing 11, Ms Armstrong, Ms Budin, Mr G Thomas and Mr J Thomas, are all inspirational success stories in this regard.

On the final day of public hearing 11 we heard from Mr Justen Thomas.  Justen spoke about being homeless as a teenager with a cognitive disability and being imprisoned.  He said that because of his homelessness that:

Eventually I was charged with trespassing .... and ended up escalating a lot of fines and I couldn't deal with my fines, so they found a reason to lock me up for fines, unpaid fines and that, and that made me a lot worse.  Inside me .... my trauma was getting worse.

And he also said:

A lot of times I have been remanded in custody because I didn't have a place to go and a home address ....

However, we heard in public hearing 11 that Justen's life story is about resilience and success in changing his life with the assistance of key support people.  He spoke about the benefits of a system like the CIDP, the Cognitive Impairment Diversion Program which existed in New South Wales, saying it:

..... helps people with disability live at their potential instead of seeing them going to jail and locking them away.

In public hearing 11 we also heard pre-recorded evidence from Ms Taylor Budin and Mr Geoffrey Thomas about people with disability being supported in dealing with the criminal justice system and being empowered to themselves change their life courses through the CIDP.

I will play brief extracts of each of their pre recorded evidence.  The first of them is from Taylor Budin, which lasts about 44 seconds, and the second is from Geoffrey Thomas which lasts approximately 3 minutes.

[VIDEORECORDING PLAYED]

 

Get some funding please.  Well, we need something in the court systems because like I     what I can't comprehend is where you get rid of something that was going so well.  Because if I was in the prison system I wouldn't have this support now and I would be sitting there screwed and that worries me.  How many people are in there that needs to be on the program, not in.  They don't know it exist the.  They don't know it exists.  I really would like to get something back into the system.  Yes.  There's a lot of people in there that don't have the support or advocacy.  Just getting pushed under the rug.  Yes.  Just another number.

[VIDEORECORDING ENDED]

Moving then to Mr Geoffrey Thomas.

[VIDEORECORDING PLAYED]

MR THOMAS: ..... it was an absolute totally different perspective that I     because people were communicating from the minute we walked in the door, from my support worker to the solicitor, from the solicitor to the prosecution, from the prosecution to the Magistrate.  So everyone knew where we were     instead of they always knew, you were sitting there.

Interviewer:  You were sitting there, yeah.  I think in your statement you talk about Michael, at the end of that court case, the outcome on the day obviously you were so stressed that words were being spoken in the court that were just not computing with you and that at the end of the day there was a good outcome, and I'm sensing you said to Michael what just happened, and he explained to you what had happened.  Within the past, presumably.  And if you were experiencing those because of a disability, you were either walked out of court or you were taken back downstairs in a truck when you got back to the prison.  Is that how fundamental that support in court through CIDP has been?

Mr Thomas:  Yeah.  It went from hearing what the Magistrate had to say and being taken down and then seeing the solicitor for two minutes between bars going, "This is what just happened", not understanding any of it and getting on the truck and then ..... what whatever you've got and working this out, and then realising it doesn't matter if you want to appeal because you will spend more time waiting on remand before it, so you just cop it any way.  So the system's broken in that way too.  But I think I wasn't     I was --- overall I was     I was flabbergasted.  I was     I had witnessed something that was a good thing that had happened involving several groups of people that were funded by the government.  Now I believe that that funding should be not only kept onboard  
but most probably it should get further funding and they should look at that even harder because it will save money in the long run.

Interviewer:  Yes.

Mr Thomas:  Because if I had got up and walked out, then you've got police officers .... you've got potential for a violent confrontation and then I would end up in hospital, I'm in remand.  It costs like $150,000 a year to keep someone in prison.  So the CIDP support, the funding for that, much less than all of that kept you .....

Mr Thomas:  Stable and onboard and focused for the period of time that I had to go to court    

Interviewer:  Yes.

Mr Thomas:      and for the day long episodes we had to go through.

Interviewer:  And it got to newer psychological report which was used in court, is that right as well?

Mr Thomas:  That was a benefit ..... and further useful with the NDIS.

Interviewer:  Yes.

[VIDEORECORDING ENDED]

We thank Ms Budin, Mr Geoffrey Thomas, Ms Armstrong, Mr Justen Thomas and Melanie and Winmartie for their involvement in public hearing 11 and hearing their stories.  I will now hand over to Ms Janice Crawford.

CHAIR:  Yes, Ms Crawford.

MS CRAWFORD:  Thank You, Chair.

Returning now to public pearing 15, it is trite to say that there is a need to ensure that systems are connected and integrated across different service sectors in order to effectively address complex and intersectional issues faced with people by disability.  A lack of coordination between State and Territory services and the NDIS and any lack of clarity in respect of responsibilities presents the very real risk of people falling through the cracks, of gaps in the provision of supports and services for people with cognitive disability and of all the adverse consequences which can flow from such gaps, not solely to the person with disability but to society more generally.

An important issue for consideration in this respect is planning for and putting into effect 
 the transitioning of people back into the community.  Melanie and Winmartie's cases are of note in this regard.

A particular focus of this hearing is the State, Territory and Commonwealth Government's perspectives as to their respective responsibilities for the provision of services and support for people with cognitive disability in the justice system.

Dr Mellifont will soon deliver a PowerPoint presentation which is intended to set out the various NDIS related policies and guidelines relevant to this division of responsibility in a summary way.

Material received by the Royal Commission indicates that States, Territories and the Commonwealth sometimes differ in their views as to their respective funding responsibilities to support people with cognitive disability who are or who have been in the justice system.

Those differences seem to have, as their source, a divide between disability needs and so called criminogenic needs, that is characteristics, traits, factors and challenges that directly relate to the individual's likelihood to offend or re offend as the case may be.  The NDIA accepts responsibility for the former while the latter is regarded by the Commonwealth, at least, as being within the remit of States and Territories.

The difficulty with this dichotomy is the substantial overlap and inter relationship which often exists between disability and criminogenic needs, some to the point where there is no logical differentiation between the two.

This topic of who will fund disability needs versus criminogenic needs is not Greenfields territory.

Nor is the notion that, in respect of people with cognitive disability who come into contact with the criminal justice system, do not have support needs which fit neatly within one concept or the other.  This particular issue of offending versus disability related behaviours has arisen in a number of past reports and inquiries, including the Joint Standing Committee on the National Disability Insurance Scheme, "NDIS Planning Final Report", December 2020, from the Victorian Office of the Public Advocate.  "The Illusion of 'Choice and Control'" Report, September 2018, and the South Australian Parliament Social Development Committee, "Inquiry into Comorbidity", September 2015, to name only a few.

Some concerns arising from past reports include that there is a misalignment between NDIS service practices in respect of making funding decisions for transition planning as against State and Territory practices for release from custodial or forensic settings, which can hinder pre-release collaboration and stall people with cognitive disability moving into the community.

There are inadequate measures to address service and support gaps.  These issues are important to the Royal Commission because if a person with cognitive disability is  
not being provided with the support they need, then they can become enmeshed in the criminal justice system, neglected, and so they do not live a full life equal to others. Instead, they live a life in which cycling in and out of the criminal justice system becomes almost inevitable.

If their contact within the criminal justice system involves incarceration, then it can also involve becoming the victim of violence within custodial settings.  The human rights of people with disability, deprivation experienced in prisons, and inadequacy of transition, planning and services, can all result in neglect of a person with disability.

The evidence proposed to be adduced in this hearing includes the written statement and oral evidence from Ms Megan Osborne, Acting CEO of NSW Trustee and Guardian, and chair of the stakeholder committee responsible for arranging alternative accommodation for Melanie in the community.

Ms Osborne's evidence will provide an update on transition planning for Melanie.  Her evidence will highlight the human face behind the funding and operational barriers to accessing services and supports for people with complex needs in the criminal justice system.

Ms Osborne will discuss Melanie's recent progress and new experiences, including going to the beach.

Commissioners, you will find a copy of a photograph of Melanie at the beach in Tender Bundle A, at tab 8.  I ask to tender this photograph into evidence and ask for it to be marked as exhibit 15 8.3.

CHAIR:  Yes, that can be done.

EXHIBIT #15 8.3   PHOTOGRAPH OF "MS MELANIE" AT THE BEACH

MS CRAWFORD:  Ms Osborne will also provide an update on funding decisions within the governance group and the related effects on transition planning to facilitate Melanie leaving the Forensic Hospital which her treating team say is appropriate.

Ms Osborne's evidence will also touch upon her experience that cases with barriers to accessing transitional funding are not isolated.  That is, Melanie's case is a complex one, but it is not unique.

Ms Osborne will be the first witness.

Ms Christine Faulkner, General Manager of the NDIA, will be the next witness.  Examination of Ms Faulkner will include what practices exist for NDIS planning for  
release from custody and whether such planning relies on an earliest possible "release date" which is often unclear for forensic and civil patients, before planning and resourcing of care in the community can be agreed to by the NDIA.  This can delay community transition.  The examination of this issue will look at the NDIS planning for transition for both Melanie and Winmartie.

Commissioners may recall that as at the time of public hearing 11, Winmartie's NDIS plan had been reduced to $4,205.70.  On 26 March of this year it was increased to $99,884.04.

Internal advice to the NDIA on or about 24 November 2020 that preceded the reduced 16 December NDIS plan for Winmartie, suggests that his NDIS plan was reduced because it was considered that his existing NDIS funded supports were the responsibility of the Northern Territory Forensic Disability Unit and that further consideration may be given to NDIS funding these type of supports only when a transition plan or release date were mapped out.

Part of the examination will be to seek to understand the interplay between these issues which does appear to have the potential to create a catch 22 type situation for a person held in custody.

Such a catch 22 situation also appears to be in play with respect to Melanie.  Ms Faulkner was personally involved in Melanie's case on behalf of the NDIA.  This personal involvement existed from at least May 2018 when she attended a high level meeting about Melanie's case at the Forensic Hospital.

NDIA communications show that there was confusion within NDIA staff about what disability support needs could be covered by NDIS.  As late as December 2020, the impasse between New South Wales authorities and the NDIA had still not been resolved.

Since the Commission's public hearing 11 in February 2021, there has been some progress in the arrangements for Melanie's transition into the community.  These arrangements will be examined in this hearing.

Ms Faulkner will be asked about why the process in Melanie's case has taken so long and whether there have been any changes to the NDIS system to deal with cases like Melanie's and Winmartie's in the future.

Day 2 of this Public Hearing 15 will focus on State, Territory and Commonwealth positions as to their respective funding responsibilities in respect of providing support needed for people with cognitive disability in the criminal justice system especially in the context of the National Disability Strategy.

The witnesses to be called form tomorrow are: Mr Michael Coutts Trotter, who is the Secretary of New South Wales Department of Communities and Justice; Ms Cecelia Gore who is the Senior Director, Mental Health, Alcohol and Other Drugs Branch,  
Health System, Policy and Strategy, Northern Territory Department of Health.

Mr Scott McNaughton who is the General Manager of the NDIA.

Ms Catherine Rule, who is the Deputy Secretary, Disability and Carers, Australian Government Department of Social Services.

The key issues that these witnesses will be examined on include the challenges faced by people with disability who are transitioning from the criminal justice system, in particular the need for NDIS plans to support effective transitions from custody into community settings.  This issue was evident in Ms Osborne's evidence in public hearing 11.

We will also examine limits to accessing NDIS supports on the basis that a support is deemed to be for offending behaviours as opposed to disability related behaviours, and therefore perceived to be a responsibility of State and Territory corrective or forensic facilities as a "reasonable adjustment" rather than a reasonable and necessary support to be provided by the NDIA.

Evidence of Mr Todd Davis and Mr Jim Simpson in public hearing 11, and materials produced under notice from the NDIA, demonstrate that this type of approach may not necessarily be appropriate for people with cognitive and psychosocial disability in the justice system.  There is a need to discuss the challenge of separating criminogenic from disability needs and that is an area which has been creating some tension between the NDIS and the States and Territories for some time.

The lack of clarity of NDIA practice guidelines to identify its responsibilities vis a vis those of the States and Territories to those with cognitive disability in the criminal justice system and those who are transitioning into the community will be examined, as will the sufficiency of resourcing of specialist coordinators, support coordinators, and justice liaison officers to support people with complex needs to navigate the NDIS.

CHAIR:  Ms Crawford, can I ask you to slow down a little, if you wouldn't mind.

MS CRAWFORD:  Thank you, Chair.

Concerns about the capacity of support coordinators to provide the support necessary for people with complex needs as raised, for example, by Mr Michael Baker in public hearing 11, who stated that in his experience the support coordinators employed by the NDIS:

..... did not always have the expertise, confidence or indeed the time or capacity to engage with the multiple service systems on which many ..... clients relied.

He stated that he had observed large case loads, high levels of turnover among  
support coordinators and what he opined to be a degree of burnout.  The adequacy, or otherwise, of current resourcing of specialist coordinators, support coordinators and justice liaison officers by the NDIA to support people with complex needs in the criminal justice system and how well these roles can work together to provide a better coordinated response for clients will also be examined.

In addition, evidence from Mr Coutts Trotter will be adduced with a view to understanding the current position in respect of plans for funding a program such as the CIDP.  Mr Coutts Trotter's evidence also provides an update on funding to the Justice Advocacy Service.

Dr Mellifont will now deliver a PowerPoint presentation on NDIS related guidelines.  Thank you, Chair.

CHAIR:  Thank you, Ms Crawford.  Yes, Dr Mellifont.

DR MELLIFONT:  Thank you.  Now it falls to me to seek to provide an overview of the NDIS system insofar as the criminal justice interface is concerned.  That I have found, not to be a particularly easy undertaking.  If I can ask for the PowerPoint presentation to be brought up which is DRC.9999.0054.0001 and start with page 2.

As we know the Commonwealth Government established the National Disability Insurance Scheme and the National Disability Insurance Agency to operate it by enacting the NDIS Act in 2013.

The Scheme was not intended to replace all services and supports provided by other service systems, but was intended to benefit all Australians with disability.

In 2015, The Council of Australian Governments, through the Disability Reform Council comprised of Ministers from State and Territory jurisdictions and the Commonwealth, agreed to principles to determine the responsibilities of the NDIS, as opposed to other service systems that is predominantly service systems provided by States or Territories.

These principles are often called APTOS.  Ms Rule, who will be called tomorrow, will explain what is necessary to change this document and, in essence, probably expressed too shortly, that it would require a mutual consensus as between first Ministers of the Commonwealth, State and Territories.

If I can go to the next slide, please.  In addition to the NDIS Act and the Rules, for example, the National Disability Insurance Scheme Support for Participant Rules 2013 and the APTOS, there are a number of operational documents and these documents are owned by the NDIA.  Documents like APTOS really sit with the Department of Social Services.  So we see on slide 2 some examples of names of some of the very many guideline documents, operational documents that the NDIA issued.

 
The APTOS is the overarching principles document.  Under that, and as I said within the province of the NDIA, are operational documents which are sometimes called guidelines.

The Department can, and does, supply policy advice to the NDIA about whether their operational documents are consistent with the legislation and DSS policy but does not have power to direct the NDIA to amend its guidelines or operational documents.

We will come to some of these guideline documents a little later, but for now we'll start     in a moment we'll start this     we will come to the APTOS.  But I will look now to the NDIS Support for Participant Rules 2013, which are issued under or pursuant to the auspices of the Act.  So if I can go to page 4 of the slides, please.

At 7.24 of the Rules, we see a statement specifically in respect of justice, and the Rules state that the NDIS will be responsible for reasonable and necessary supports for a person not in custody on the same basis as all other persons but for a person in custody, the NDIS will only be responsible for reasonable and necessary supports other than those mentioned in 7.25(a) which I will come to in a moment, and only to the extent appropriate in the circumstances of the person's custody and transition supports.

In reference to 7.24(b)(ii) that I've just read, you will see the start of a number of hoops that a person with a disability has to get through in order to be regarded as being eligible for NDIS supports whilst in custody.  That theme resonates throughout the various APTOS documents and the operational guidelines issued by the NDIA.

We see at (ii) an acceptance by the NDIS in those Rules, or in fact a requirement on the NDIS in those Rules to be responsible for transition supports for the person with disability from custody.  And 7.24 defines transition supports as supports to facilitate the person's transition     can we have up slide 5, please     from the custodial setting to the community but only insofar as they are reasonable and necessary, and only insofar as they are required specifically as a result of the person's functional impairment.

So we start to see in this language the disability versus criminogenic dichotomy that Ms Crawford spoke about in the opening.  And we see there the hurdles the person with disability must get through to get NDIS transition supports.  That is, to be able to establish that the supports are required specifically as a result of the person's functional impairment.

CHAIR:  Dr Mellifont, can I seek to understand better than I do at the moment, the relationship to which the Rules to which you are directing our attention, and the document which is described as APTOS, that is the document that is the result of agreement between the Commonwealth, the State and the Territories.  The Rules as I understand it, date from 2013 and thus pre date APTOS which dates from 2015.  Is that right?

 
DR MELLIFONT:  That's so.

CHAIR:  And the object of APTOS is then to pour content, if you like, into the general concepts that are stated in the Rules?

DR MELLIFONT:  That's so.

CHAIR:  So what we have got are Rules which are supposed to delineate the outer boundaries of the responsibilities of the NDIS for people either in a custodial setting or people who may be subject to criminal sanctions but not in a custodial setting, but those principles are stated in general terms that require much more specific explanation.  So that's how we get to APTOS, I assume?

DR MELLIFONT:  Yes, in part.  APTOS came about, as we understand it, because of a perceived need by Commonwealth, States and Territories to come to agreement, at least an agreement in principle, as to how these Rules might apply, what is the divide.  So the answer to your question is yes, it's intended to pour content into it, but content based upon consensus as reached between the Commonwealth, State and Territories through that process.

CHAIR:  Yes.

DR MELLIFONT:  Yes.

CHAIR:  Yes.  I think that's consistent with what I said.  The Rules are made under the legislation so the Rules have the force of what lawyers call subordinate legislation.  But APTOS is an agreement between governments effectively; is that right?

DR MELLIFONT:  Yes.

CHAIR:  So the status of APTOS is effectively an intergovernmental agreement as to what the Rules, made under the legislation, how they should operate in practice?

DR MELLIFONT:  Yes.

CHAIR:  And APTOS has to be consistent with the terms of the Rules and the legislation, because if we talk about a hierarchy, we have an Act and we have some Rules, then we have APTOS and following APTOS we've got guidelines and at some stage you will tell us about the status of guidelines where they come in the hierarchy of laws and policies?

DR MELLIFONT:  At the bottom.

CHAIR:  Under APTOS?

DR MELLIFONT:  Well, in purported pursuance of APTOS, but under the auspices  
of the NDIA, and the NDIA have the power and ability to amend and issue guidelines, operational documents as they see fit.  But they sit at the bottom of that hierarchy and, of course, the guidelines must be construed consistently, one would expect, with the subordinate legislation.  If they purport to go outside it, then we are in the field of ultra vires.  But yes, that is the general consensus, and if Ms Rule has a different view about the hierarchy, I'm sure she will share it with us tomorrow in the course of her evidence.

CHAIR:  There is a whole body of administrative law that deals with the status of documents such as guidelines or policies issued by departments, and that is in general, and correct me if I'm wrong, that decision makers who have to apply the relevant legislation are bound by the legislation, but in applying the legislation, they take into account any guidelines or policies that have been published by the relevant department provided, as you say, that those guidelines are consistent both with the legislation and the Rules.  Is that a fair summary of the status of them?

DR MELLIFONT:  Yes, of course.

CHAIR:  And that means that if there is an appeal, for example, to the AAT, the Administrative Appeals Tribunal, that's a body that can reassess the merits of a particular decision, nonetheless that decision on appeal will take into account the guidelines or policies that have been stated by the Department provided that they are consistent with the legislation and the subordinate legislation?

DR MELLIFONT:  Yes.

CHAIR:  Okay.  All right, I think at least for me, I'm not sure anybody else, but I think I understand where they fit.

DR MELLIFONT:  Yes.  Thank you.  So if I can go to slide 6, then which sets out what the NDIS will not be responsible for, what the NDIS will not be responsible for in 7.25 of the Rules, and you will see that the NDIS will not be responsible for the day to day care and support needs of a person in custody; ensuring that criminal justice systems are accessible for people with disability; general programs for the wider population, including programs to prevent offending and minimising risks of offending and re offending; and the diversion of young people and adults from the criminal justice system as well as a couple of other matters.

So we then turn to APTOS.  I ask that that be brought up on screen just so those watching can see what it looks like and the Commissioners are obviously very familiar with this document.  CDT.8000.0004.0231.

Observe that the way in which this document is set out is that there are six general principles,  andI will come to each of them in a moment. Then there are applied principles, which are intended to assist governments to further define the funding responsibilities of the NDIS, coupled with a table of specific activities funded by NDIS and other systems.
 

So, as we discussed, the purpose of the APTOS is to define the activities funded by the NDIS and other systems.  It's not intended to place additional obligations on other systems, obviously that would not be within its remit.

There are 10 specific topics which have applied principles and tables for specific services and I will come to those in a moment.

But if I can take down that document now, please, and return to slide 8.  I will go through the general principles.

The first is that people with disability have the same right of access to services as all Australians, consistent with the goals of the National Disability Strategy which aims to maximise the potential and participation of people with disability.  So, an overarching principle.

Slide 9, please.  This is where we start to see the divide between Commonwealth and State, Commonwealth and Territory.  May I just say, if I say the word "State", to read in "Territory", if I use the word "Territory", to read in "State".

So the NDIS will fund personalised supports related to the person's disability support needs unless those supports are part of another service system's universal service obligation, and in the context of this hearing, that's the State's obligations with respect to the criminal justice system.  Or, covered by reasonable adjustment as required by the Commonwealth Disability Discrimination Act or similar legislation in jurisdictions.

The third principle, which is on slide 10, is we see a statement here that there should be clear funding and delivery responsibility, and it should provide for the transparency and integrity of government appropriations consistent with their agreed policy goals.

So we see there a statement of a desire or aspiration of clarity, transparency and integrity but otherwise a fairly vague proposition.

CHAIR:  Dr Mellifont, perhaps for the benefit of some who may be following this, can we just go back a step.  The fundamental issue that all this is dealing with is the division of legislative and administrative responsibilities between the national government and the governments of States and Territories so that we are now talking about the criminal justice system.  But this is something that applies across the board.  So we know, for example, and we've had hearings on the health system and we know that the public hospitals are basically run by the States whereas the Commonwealth provides a large amount of the funding for health systems through Medicare and other schemes.  But that health structure requires at some point a division of responsibilities between Commonwealth and the States, and that can create all sorts of issues concerning vertical imbalance.  That is to say who is responsible for providing the money, who is responsible for providing the services.  We have exactly  
the same thing in a different context with education because it's the States that provide public school education, the Commonwealth provides some of the funding for that.  It provides much of the funding for private schools or systemic schools and we've got exactly the same issue with criminal justice system because under Australian law most of the criminal justice     most criminal laws are the laws of the States.  Of course there are Commonwealth criminal laws such as the prohibition on importation of drugs and so forth, but in it practice it is the State courts that administer the criminal law.  The Federal Courts have only a tiny little bit of criminal jurisdiction, although I suspect over that time it will expand but that's another issue.

So we're dealing here with issues that are actually common to a lot of what this Royal Commission is considering.  That is to say, how do we ensure that the complexities of the Federal system, the division of responsibilities, financial and from the point of view of service between the Commonwealth and the States, does not operate in a way that disadvantages, for us particularly, people with disabilities.  I just wanted to put that in a broader context because the issues you were raising are terribly important.  When we look at the broader picture, they also have resonance in a number of other areas that we are looking at.  Sorry to interrupt but I thought that perhaps more general picture might help.

DR MELLIFONT:  Thank you.  And the pointy end for this hearing, and why we consider it necessary to traverse this territory in this hearing, is the artificiality of seeking to distinguish disability with criminogenic needs in circumstances where therewill often be a very significant overlap, sometimes no logical differentiation between the two.

And the way I read the system is that it really puts the onus on a person with disability to try to tease out disability versus the other needs which are to be funded by the State, and this kind of obligation is put on people who are probably the least well equipped to do it.

CHAIR:  Yes.  I understand that and that's a very important point.  We can see, I think, quite readily how the issue arises.  The Commonwealth decides to introduce this extraordinary new measure, that is the National Disability Insurance Scheme, which is quite different from anything else that has ever existed in this country.  And the first issue that arises is, well, what are we going to cover?  Who is going to be covered?  And for what kinds of disabilities?  And then that's where you get into the issue of, well, what do we have to pay for     we being the Commonwealth     and what should we get the States and the Territories to pay for, bearing in mind they are also making a contribution to the NDIS of quite substantial sums of money.

One can see that the Rules are an attempt to mark out the boundary, but one can also see that this is an extraordinarily difficult task to undertake precisely for the reasons given.

DR MELLIFONT:  Yes.  And we hope to try and come up with some propositions or have discussions and examinations about how it might be better so that the overall  
objective of improving the quality of life of persons with disability in the criminal justice system is enhanced and therefore the quality of people, the lives of people in Australia generally are enhanced.

Returning then, if I might, to the general principles slide 11.  General principle 4 tells us there should be a nationally consistent approach to supports funded by the NDIS and the basis on which the NDIS engages with other systems.  And it notes, we see, that because there will be variation in non NDIS supports funded within jurisdictions     okay, so there will be variations between States and Territories     there will be need forflexibility and innovation in the way the NDIS funds and/or delivers these activities.

General principle 5, which I must confess to find a little vague but perhaps it's just me, is that in determining the approach to the supports funded by the NDIS and other systems, governments will have regard to efficiency, the existing statutory responsibilities and policy objectives of other service systems and operational implications.

On slide 13, something which is particularly important in the context of the cohort of people we are speaking about in this hearing, the interaction of people with disability with the NDIS and other service systems should be as seamless as possible, where integrated planning and coordinated supports, referrals and transitions are promoted, supported by a "no wrong door" approach.

That's an important aspirational statement and we heard in public hearing11 some evidence from some of the witness, at least anecdotally, of people being shuffled between the Commonwealth and the State or between the Commonwealth and the Territory that have been told they are knocking on the wrong door.

CHAIR:  It's an admirable aspiration but like a lot of these things, the trick is to actually implement it.

DR MELLIFONT:  Yes, quite so.

If I could then move to page 14.  These are the 10 specific topics for which there are applied principles in the APTOS and tables of services: health, mental health, early childhood development, child protection and family support, school education.  Of those five, health and mental health have the most overlap of the topic under consideration.  Page 15, please.

Higher education and vocational education and training, employment, housing and community justice, which has relevance to this hearing, transport, justice, which is obviously relevant, and aged care.

If I can go please then to the APTOS again so CDT.8000.0004.0231 at 0251.  Just to show those watching how this is set out if they are trying to follow the document.

 
These are the applied principles as relates to justice, I'm going to go through those, and you will see that they are on a table on page 21 of the document.

Then if one goes to the next     two pages down at 0253 and if we can bring that up as big as we can, please     what this document does is to set out in table form what the NDIS will provide as reasonable and necessary supports for eligible people.  You see that in the first column.  And then what the other parties, and that's predominantly State or Territory systems, are to provide.  And you will see, with respect to justice, this table is divided into three categories.  The first which we see there are supports for people in contact with the criminal justice system currently living in the community, it includes people on bail, parole and non custodial orders.

The second category is supports for people subject to custodial sentences or other custodial orders including people on remand.  So people in prison.  The third category which we see at 0255 are supports for participants residing at youth training centres, youth justice centres or youth detention centres.  Now, we won't be focusing on that particular part of the APTOS in this hearing, but people should not be concerned because this will be part of our ongoing work within the Commission.  There is only so much we can accomplish in these two days, of course.

That's what the document looks like.  The document can be taken down and return to slide 16 of the PowerPoint, please.  When that comes up we'll see that it reflects the applied principles for justice and tells us that the criminal justice system, that's State or Territory systems, will continue to be responsible for meeting the needs of people in line with the National Disability Strategy and existing legal obligations, including making reasonable adjustments in accordance with the DDA.  And we've just seen that parallel in the Rules.

They are to do this through, (a) ensuring its systems, supports and buildings are accessible for people with disability.  Slide 17, please. (b) general programs for the wider population, including programs to prevent offending and minimise risks of offending and re offending, and diversion of young people and adults from the criminal justice system, and the management of community corrections.

Slide 18, please.  The applied principle 2 tells us that other parties and systems, States and Territories, will be responsible for supports for people subject to a custodial sentence or other custodial order imposed by a court or remanded in custody.  Slide 19, please.

In that regard, the States and Territories are responsible for meeting day to day care and support needs of people with disability in those settings, including supervision, personal care and general supports which are also required by the general custodial population.  And general supports to enable skill development and living skills and promote the effective transition of people with disability out of custodial settings in line with supports offered to other people in custodial settings.

So we see here an applied principle that the States and Territories have a  
responsibility around transition, and you will recall that the Rules impose on the NDIS responsibilities around transition.

Slide 20, please.  Applied principle 3 tells us the health system, mental health system and other parties     meaning other than the NDIA     will be responsible for operating secure mental health facilities which are primarily treatment focused.

Slide 21, and this is a little repetitious in the Rules but it's probably necessary to go through.  The principle tells us that the NDIS will continue to fund reasonable and necessary supports required due to the impact of the person's impairment on their functional capacity where a person is not serving a custodial sentence or in custody.

So as such, the NDIS will fund supports where the person is on bail or a community based order, which places controls on the person to manage risk to the individual or the community.

Slide 22, applied principle 5 tells us that the NDIS will fund specialised supports to assist people with disability to live independently in the community, including supports delivered in custodial settings aimed at improving transitions from custodial settings to the community, where the supports are required due to the impact of the person's impairment on their functional capacity and are additional to reasonable adjustment.

So the way that we read this is that to get these NDIS supports aimed at transitioning, the person with disability has to show, or the NDIS decision maker has to be satisfied of, that support is: aimed at transitioning, it’s required due to the impact of the impairment and their functional capacity, and it goes beyond what the State is required to provide.  So quite a few hurdles.

Slide 23, please.  It tells us at applied principle 6 that where a person is remanded in custody, NDIS funding for reasonable and necessary supports in the person's plan will continue to be available when they are released.

Slide 24.  The NDIS and the justice system will work closely together at the local level to plan and co ordinate streamlined services for individuals requiring both justice and disability services, recognising that both inputs may be required at the same time or through a smooth transition from one to the other.  This presumably is intended to connect with the aspirational principle and the general principles about coordination.

CHAIR:  Can we try and make     see how this conceptually is meant to work.  It won't solve particular problems but let's try and get a sense of the overall structure.  The idea seems to be that when someone who is in contact with the criminal justice system but is not in prison or in custody, ordinary NDIS Rules apply, and that person can obtain or continue to receive such support in the community as that person would have received even if he or she had never come in contact with the criminal justice system.  That seems to be principle number 1.
 

DR MELLIFONT:  Yes.

CHAIR:  When a person, however, goes into prison or into custody, at that point, although there seems to be     there may be some ambiguity about it, the NDIS is no longer responsible for the reasonable supports of that person in prison.  That's the responsibility of the prison authorities.  The NDIS comes into it at the point of transition when a person in custody is about to go out into the community or possibly to go out into the community, at that point the NDIS is providing or, according to this document, will provide supports to ease that process of transition.  Am I right so far?

DR MELLIFONT:  In respect of the latter proposition it's not quite as stark as that.  Certainly the NDIS, according to the Rules, assumes responsibility for transitions, but even within the custodial setting the NDIS does assume some responsibility, provided that a variety of things can be shown, which is that supports are needed inside custody which are as a result of the functional impairment, and which are reasonable and necessary under the NDIS Act, and which aren't that which fall within the obligation of the States or Territories to provide reasonable adjustments.

CHAIR:  Which of the principles you've just referred to actually says that?  On one view it's implicit.  I'm not sure it's explicit.

DR MELLIFONT:  Let me come back to it, sorry.  It's expressly stated in the Rules but not    

CHAIR:  Not in the principles?

DR MELLIFONT:  Not expressly stated in these principles so far.

CHAIR:  Okay.  All right.

DR MELLIFONT:  Just checking my notes.

CHAIR:  My principle 2 tells us all the things that are the responsibility of the States.  It doesn't tell us affirmatively what's the responsibility of the NDIS.

DR MELLIFONT:  No, that's so.

CHAIR:  Okay.  All right.  I see the time.  Are you planning to take a break around about now?

DR MELLIFONT:  I think it might be a good idea.  15 or 20 minutes, depending on    

CHAIR:  It's now 11.35.  Happily we don't have to worry about daylight saving, so let us resume at 11.55.  We will take 20 minutes.
 

DR MELLIFONT:  Thank you.

ADJOURNED    [11.35 AM]

RESUMED    [11.56 AM]

CHAIR:  Dr Mellifont, before we start, I'm sure Commissioner Mason will be delighted to know that Canberra is locking down for a week.

I'm sure you will enjoy your stay in Canberra, Commissioner Mason.  Oh dear.

Yes, Dr Mellifont.

DR MELLIFONT:  Yes, a belated birthday present, Commissioner Mason, happy birthday for yesterday.  All right.

Chair, I'm going to come back to the question you asked me just before the break because my answer comes out of the table which we are about to come to.  So I'm going to come back to that in a second.  What I wanted to do first, though, is to note that the APTOS document itself actually contains a note, and we see this at slide 25.

The principles themselves actually note that governments acknowledge that the NDIS interface with justice is complex and no doubt a part of that is this asserted dichotomy as between disability and criminogenic needs, I'm assuming.

Page 26, please.  I'm now going to go to the table part of the APTOS which I had brought up before the break.  And as I indicated then, the table sets out two columns, role of the NDIS and second column, the roles of other parties.  Dealing first with the category of people with disability in the justice system who are in community at 27 of the slide, please.

The table tells us that it's an NDIS responsibility for the coordination of NDIS supports in collaboration with the supports offered by the justice system.  It tells us also that there's an NDIS responsibility to provide support to address behaviours of concern, offence related causes and reduce the risk of offending and re offending such as social communication and self regulation skills where these are additional to the needs of the general population, required due to the impact of the person's impairment and are additional to reasonable adjustment.

Slide 28, we're told that the NDIS will continue to fund reasonable and necessary supports, including the funded supports outlined in the participant's plan, including assistance with planning, decision making, et cetera.
 

At 29, this is where we've set out the State and Territory responsibilities for people in the community.  They include pre sentence psychological and psychiatric reports regarding, amongst other things, cognitive disability.  Support for people with disability to access and navigate the justice system.  Reasonable adjustments to mainstream services.

Slide 30, please.  Court based support programs and specialist lists including bail support.  Management of offenders to ensure compliance with supervised orders or conditions.  Early identification and intervention programs and post custody services to prevent offending or re offending.

Slide 31.  Offence specific interventions aimed to reduce specific criminal behaviours, reasonably adjusted to the needs of people with a disability and which are not clearly a direct consequence of the person's disability.

So what this table is telling us is that the State is to provide offence specific interventions unless the criminal behaviours are clearly a direct consequence of the person's disability.  So I take that as meaning that if they are clearly a direct consequence of the person's disability, that the responsibility will fall to the NDIA.

So in the context of in community, we go back to what the NDIS have to provide in summary, and it's only to provide supports to address behaviours of concern and reduce the risk of offending and re offending where they are additional to the needs of the general population and are required due to the impact of the person's impairment on their functional capacity and are additional to reasonable adjustment.  So we see those hoops a person has to go through.

Slide 32, continuing on with the State/Territory responsibility for in community.  We see intensive case coordination operated by the justice or other service systems where a specific component of the coordination is related to the justice system.  We heard in public hearing 11 of the very positive effects that proper intense case coordination can have, case management can have for the individual in staying out of the criminal justice system, not becoming enmeshed in the criminal justice system.  On my reading, there is no equivalent intense case coordination requirement on the NDIS.

If we can then move to the in custody situation under the table, slide 33, please.

Going through the table in terms of the NDIS services, coordination of NDIS supports offered by Justice and other service systems.  So that's the same that we saw for the in community situation.

Slide 34.  In custody, the NDIS, the only supports funded are those required due to impact of the person's impairment on their functional capacity and additional to reasonable adjustment and are limited to aids and equipment.  The one of relevance here is allied health and other therapy directly related to a person's disability  
including for people with complex and challenging behaviours.  Also relevant, disability specific capacity and skills building supports which relates to a person's ability to live in the community post release.

Supports to enable people to successfully re enter the community, and training for such staff in custodial settings where this relates to an individual's needs.  In respect to the third and fourth of those points, that is, disability specific capacity and skills building supports and supports to enable people to successfully re enter the community, we would read that as not simply being related to the process of transition towards the end of the person's custodial stay, but as something which should be in place throughout the person's time in custody.  That will be a matter for examination and perhaps differences of views as between Commonwealth, States and Territories about how that ought to be read.

CHAIR:  Dr Mellifont, what would be examples of disability specific capacity and skills building supports which relate to a person's ability to live in the community where those supports are not directly linked to an imminent release?  What sort of examples could we think of that might be included within that description?

DR MELLIFONT:  An example might be communication skills and interpersonal skills development of the individual, which is an ongoing skills process.  So assisting the person with cognitive disability to enhance their communication skills so they don't find themselves in trouble or in fractious inter relationships with people.  So that is something that we would see as something which should be part and parcel of the skills building throughout the custodial stay and then into the community.  That's an example.

CHAIR:  So it could include, for example, speech therapy, for someone to communicate better?

DR MELLIFONT:  It could.  That might also come within the allied health and other therapy heading above it, but it could also come within the third and the fourth dot points, for sure, in our view.

CHAIR:  Anger management?  Would that be included?

DR MELLIFONT:  Yes.

CHAIR:  That would be included?

DR MELLIFONT:  Yes.

CHAIR:  And some might say that that's on the borderline, anger management may be criminogenic?

DR MELLIFONT:  Yes.  And the NDIS might say anger management, and I don't know whether they will say this or not, the NDIA, they may say that anger  
management is a program routinely offered to the general prison population and therefore it's not something they have to do, or they might not say that.  They will tell us tomorrow.

CHAIR:  I think it helps from time to time to use examples because then we can see a specific issue that arises whenthese general principles of course have to be applied to those specific situations, and no doubt there will be different views from different stakeholders as to how that application should be worked through.

COMMISSIONER MASON:  Chair, on that point, it will be interesting to find out if those States and Territories have what I would call a schedule of examples, universal examples.  Because you would imagine that would be part of people's orientation or understanding of what has already been accepted as coming between those two areas.  Thank you.

CHAIR:  We even have in legislation these days sometimes notes that give examples of how the general proposition stated in the relevant provision might be applied in practice.  So if I may say so, Commissioner Mason's suggestion is a very helpful one.

DR MELLIFONT:  Thank you.  All right.  If I might move then to slide 35, continuing with the NDIS responsibility.

When a person is remanded in custody, their funding for reasonable and necessary supports in their plans will continue to be available when they are released.

Then we move to the State/Territory responsibilities in custody at slide 36.  The first three replicate the in community responsibilities, so pre sentence supports, specific interventions and early identification and intervention programs and post custody services to prevent offending or re offending.

Slide 37, please.  Meeting the day to day support needs of people in custodial settings including personal care, fixed aids and equipment, and supports required by reasonable adjustment, secure accommodation facilities and support for people to access and navigate the justice system, including guardianship, advocacy, community visitors and legal support.  And that last one also replicates in community responsibility.

Can I then move please to slide 39.  The State/Territory responsibilities include the intensive case coordination, which we also saw in the in community responsibilities.  And advising and consulting in existing prison systems to improve supports for eligible prisoners including the development and implementation of behaviour management, risk and case management plans.  And implementing practical disability training to Corrective Services Officers and other criminal justice system staff, et cetera.

Their obligations continue, slide 40.  Assisting prison staff to understand individual client needs and human rights, especially in relation to triggers for  
challengingbehaviours, de-escalation, issues associated with vulnerability and interaction with other prisoners as specified in a behavioural plan.

We saw a parallel type obligation, I'm not sure as to how these play out in practice, in the NDIS obligations to train staff where it relates to individual participant needs.

The last dot point on slide 40 is State and Territory responsibility for cultural, linguistic and religious supports for people in custody.  I could not see a parallel or complementary obligation in the NDIS services.

Slide 41    

CHAIR:  Sorry to interrupt.  I suppose one could readily understand why the NDIS would not be regarded as the funder of cultural support for First Nations people, for example, in custody, but that doesn't mean the Commonwealth shouldn't be responsible.  On one view, if ever there was a Commonwealth responsibility, this is it.

DR MELLIFONT:  I don't cavil with your proposition, Chair.

CHAIR:  I understand this document is concerned with the NDIS, but my point is it may not exhaust what the Commonwealth should be either funding or providing.

DR MELLIFONT:  Yes.  I understand.  Thank you.  Moving then to slide 41.

Here, there's a State/Territory responsibility for training and skills to increase people's capacity to live in the community post release in line with the supports offered by these systems to other people in custodial settings as part of their reintegration process and to reduce recidivism.

Now, precisely how this interacts with the NDIS obligation of disability specific capacity and skills building supports which relate to a person's ability to live in the community post release, and supports to enable people to successfully re enter the community, is not apparent to me on the face of this document, and one can understand that there might be differing interpretations between Commonwealth, State and Territories as to exactly what each is required to do.

Can I move then to slide 42.  You will recall that I referred to the note which is the acknowledgement by the governments of the difficulties, the complexity of the NDIS criminal justice interface.  Now, a Justice Working Group was established in     I've written 2020, I think that's right, upon a request from the then Disability Reform Council.  The intent of that group is to work together to clarify the interaction of the justice system and the NDIS for participants.  We understand that the NDIA Justice Operational Guideline 2021, which is referred to in Mr McNaughton's statement, is one outcome of that group, and I will come to it in a moment.

Slide 43, please.  I spoke earlier about NDIS operational guidelines, and Mr  
McNaughton tells us in his statement that the NDIS publishes information in accessible formats that details the types of supports the NDIS can fund and the circumstances in which they may be considered reasonable and necessary through planning operational guidelines.

The statement directs us to a website which we see on slide 44.  And when you go to that website there are links to many, many documents     I've included a few:  Our guidelines, how NDIS supports work, principles we follow to create a plan, reasonable and necessary supports, justice system.

Under another heading, our guidelines - supports you can access, including specialist disability accommodation.  We will hear more about that today.  Supported Independent Living.  Again we will hear more about that today particularly through Ms Osborne.

At 45 of the slides, Mr McNaughton tells us in his statement, and we know in any event, that NDIS provides home and living supports for some people with disability, but not to people in custody.  And there are a number of types of home and living supports, and the specialist disability accommodation and the supported independent living are the ones that we will touch on today.

Slide 46, please.  As to that supported individual living called SIL colloquially.  SIL operational guideline.  As I've said, the NDIA doesn't provide SIL supports for people who are in custody, but Mr McNaughton tells us the NDIA will sometimes provide funding for home and living supports in a plan to support the participant to transition gradually from the custodial setting into the community.  If such supports are determined reasonable and necessary and they are available when the participant transitions into the community.

Slide 47, please.  As I said, the NDIS justice operational guideline came into being this year, June 2021 and it replaces the justice practice guidelines.  So it's come into play between our public hearing 11 and this one, obviously.  What Mr McNaughton tells us is that that guideline encourages staff to consider the individual circumstances of the participant and the primary responsibility of the justice system.  That appears to be the intent of that document.

Can I ask that that document be brought up.  It's CDT.8000.0013.1110.  Now, it's a relatively lengthy document.  I'm not going to go through it in much detail but just point to some examples of this reminder that Mr McNaughton speaks of, that the justice system, that's the State system, has the primary responsibility.  Could I have it at 1115, please.  About four paragraphs down we will see the words:

This means when you're in custody the justice system should provide things like .....

And then six dot points down:

 
Case coordination to help you transition out of a justice setting including the management of order, child protection and family support, health, mental health, housing or homelessness services .....

Then under the heading on the same page:

What NDIS supports can you get while you're in custody?

We are told that:

The NDIA may fund reasonable and necessary supports in custody when the supports you need aren't the justice system's responsibility to provide and it is appropriate in the circumstances for the NDIS to provide supports.

But it does acknowledge at 1116 at the first dot point at the top of the page that the NDIA may fund things like:

Capacity supports that will help you when you are released such as support coordination, a recovery coach, occupational therapy or behaviour supports related to your disability.

But there is no further precision in this document as to what that might be.  I turn over then to page 1117.  And go to the bottom of that page.  This is about the funds needed when you're not in custody and we see that reminder again that:

Under the law for the NDIS all supports to be included in your plan must meet the NDIS funding criteria.  We cannot replace supports and services that are more appropriately provided by another system.

Then the next page at 1118.  We see at the third last dot point on that page that the justice system and other services should provide a number of things including:

Intensive case coordination where a significant part relates to your transition from the justice system into the community.

Now can I go finally on this document to 1121.  This is the example and the only example in this operational document as to how this might operate.  I won't read all of it out but we see the example says that:

Ian is currently in a custodial facility serving a five year sentence with a three year non parole period.

That means he has to serve at least three years before he can be eligible for parole.  The document tells us:

The justice system currently meets all his support needs so we don't fund any supports in his plan.
 

But it doesn't elaborate as to what that means.  Five paragraphs down the example tells us:

Within the justice system Ian gets case management and coordination support while his release is being organised, for example, to help him with the Parole Board.

And it tells us that the NDIA will check in with Ian during his plan to find out if there are any changes with his custodial order or disability support needs.  In terms of the examples which are intended in the justice operational guidelines to give some guidance as to who will do what, who will provide what, that's all we see.

COMMISSIONER MASON:  Dr Mellifont, just in reviewing this document, have you seen anything that relates to case handover between being in custody and then outside of custody?

DR MELLIFONT:  Not specifically.  Not beyond references that we see to coordination requirements that I've already gone through, so only in the general level, but Commissioner Mason, I will double check that overnight in case there is a specific document that I can't bring currently to mind.

COMMISSIONER MASON:  Thank you.

DR MELLIFONT:  And just finally on this document under the heading:

What if you don't agree with the decision we make?

It tells us that: if we, the NDIA decide support is more appropriately funded by the justice system, we can't include the support in your plan.

Can I turn then please     excuse me for a moment.  I'm just mindful of the time.  The balance of the PowerPoint presentation does reflect a summary of the propositions advanced in Mr McNaughton's statement that the Commissioners have which speaks to Mr McNaughton's interpretation as to what is provided in what circumstances.  So I will skip past that in the interests of time and return then to the final point of this PowerPoint display at page 63, the topic of justice liaison officers.

We've heard a little bit about this in public hearing 11, and this initiative, which is an initiative which is supported, as I understand, by most States and Territories, was a result of a COAG commitment to resolve and/or clarify issues at the justice NDIS interface.  That included the introduction of justice liaison officers to work across State and Territory justice systems to build capacity and capacity of justice and associated staff.  And we're told by Mr McNaughton that the role is to assist justice personnel in custodial settings to better understand the NDIS pathway and provide guidance to ensure prospective and existing NDIS participants who are approaching release.  And it requires collaboration and commitment from the criminal justice  
systems and other mainstream systems and the NDIS.

Slide 64, please.  So they can work with the support co ordinator around implementation of a plan.  They are not a delegate under the NDIS Act.  They don't have decision making authority but, rather, they are to connect with delegates regarding decisions about access requests, planning and funding approvals.  There are guidelines in respect of Justice Liaison Officers.  Importantly, they are not a public facing position.  That is, they are not intended to be a Justice Liaison Officer face to face with an individual participant or would be participant.  Rather, it's a systemic position where we see at slide 67 it's to provide guidance to justice staff in supporting the person to apply for NDIS.

We see at slide 68 how many there are.  There's an allocation of 14 across all of Australia, and the breakdown is there.  New South Wales, ACT, 3.  NT, 1.  Queensland, 1.  South Australia, 1.  Tasmania, 1.  Victoria, 5.  Western Australia, 2.  13 of those positions are full time, one is four day per week, and as at the date of Mr McNaughton's statement there are six current vacancies.  Perhaps Mr McNaughton can tell us tomorrow if there are still six vacancies and when they are likely to be filled.

We will also explore with Mr McNaughton the propositions advanced by some of the States and Territories that there simply aren't enough JLOs.  They're a great idea, they are helpful but they need more.

The PowerPoint can be taken down now, please.

CHAIR:  Dr Mellifont, you took us through the document that is referred to at slide 47, that is, the NDIS justice operational guideline published on 15 June 2021.  The copy that I have, and I think this is attached to Mr McNaughton's statement, the copy I have has a designation "Official for internal use only" but it seems directed to people in custody.  For example, what happens when you're going to be released from custody.  So is this a guideline that is provided to people in custody?

DR MELLIFONT:  My understanding, and I will check this in the course of one of the breaks, my understanding is that the copy which is attached to Mr McNaughton's statement is marked official for internal use only because as at the date of his statement it was still in contemplation, that it hadn't quite been in place.  But my understanding is that it is now in place, it is now publicly accessible.  As to whether or not it is handed in hard copy to prisoners, I don't know the answer to that.

CHAIR:  It may be interesting to know because my suspicion would be that there would be very few prisoners who would be able to understand the import of this document.

DR MELLIFONT:  And that may well be right.  But I cannot speak, standing on my feet, to know from prison to prison the in reach impact of this document.

 
CHAIR:  Mr McNaughton may be able to help us on that.

DR MELLIFONT:  Thank you.  Before finishing up the opening, can I just remind those watching that there are non publication and pseudonym directions in place in relation to Melanie, her biological mother, her foster carer and victim, and there are non publication and pseudonym directions in respect of Winmartie.

Finally, can I just return to something I observed at the start, which is that this hearing can include evidence that may be distressing to some people.  It might include accounts of violence, abuse, neglect and exploitation of people with disability and may include references to suicide and self harming behaviour.  If I could ask for the content warning to come up on the screen, please.

If this evidence raises concerns for you, you are of course able to contact the National Counselling and Referral Service on 1800 421 468.  There is also the Blue Knot service also available on that same number.  We have a number there for Lifeline, 131 114, and Beyond Blue, 1300 244 636.

Chair, might I ask please for a five minute break to set up for the next witness?

CHAIR:  Yes.  All right.  Thank you, we will break for five minutes to allow that to be done.

ADJOURNED    [12.33 PM]

RESUMED    [12.41 PM]

CHAIR:  Yes.  Ms Crawford, I think.

MS CRAWFORD:  Thank you, Chair.  Chair, we call Ms Megan Ruth Osborne.  Ms Osborne is on the screen and is in Sydney and will take an affirmation.

CHAIR:  Thank you very much.

If you would be good enough, Ms Osborne, to follow the instructions of the associate, who will give the instructions, wherever the associate is.

MS MEGAN RUTH OSBORNE, AFFIRMED

CHAIR:  Thank you, Ms Osborne, and thank you for returning to the Commission for another hearing.  If you would be good enough to listen to Ms Crawford, she will ask you some questions.  I'm sure you are aware that Ms Crawford is in Brisbane,  
and as far as Commissioners are concerned, Commissioner Mason whom I think you can see on the screen is in Canberra and will be for some time.  Commissioner McEwin is in Sydney and I am in Sydney as well.  Thank you.

MS OSBORNE:  Thank you.

EXAMINATION IN CHIEF BY MS CRAWFORD

MS CRAWFORD:  Thank you, Chair.

Ms Osborne, can you hear me clearly?

MS OSBORNE:  Yes, I can.

MS CRAWFORD:  If you have any difficulties can you let us know, please?

MS OSBORNE:  Of course.

MS CRAWFORD:  Can you tell the Commission what your current position is?

MS OSBORNE:  Currently I'm the Acting Chief Executive Officer for NSW Trustee & Guardian.

MS CRAWFORD:  You were previously the Public Guardian responsible as a direct report for the guardian appointed to Melanie's case?

MS OSBORNE:  Yes, that's correct.

MS CRAWFORD:  Correct me if I'm wrong, but you are also the Chair of the Highly Complex Housing Pathway Governance Group?

MS OSBORNE:  Yes, I was until recently.  That's now sitting with the Acting Public Guardian who reports directly to me.

MS CRAWFORD:  Since you last appeared at the Commission, can you give the Commission an update on Melanie's current situation please?

MS OSBORNE:  So quite a bit has occurred since I last appeared in relation to Melanie, I guess probably firstly starting with the options that we were working on in relation to her living in the community.  We did have a long term SDA property we were looking at.  We continue to have that in our sights.  It is currently waiting for construction to commence and we believe that's at least 12 months away, so we've shifted our focus to what medium term accommodation options there are.

The reason we did that was we didn't think it was appropriate nor fair to Melanie to  
have her continue to be in the forensic system longer than she needed to be.  She has spent a considerable amount of time there.  The medium term accommodation, good news, it's with the same provider who we were working with for the long term accommodation and also the same provider who has been providing in reach services to build relationships with Melanie whilst she is in the Forensic Hospital.  The medium term accommodation is also located in the same LGA.  That's important because it means that when she does eventually move to the long term accommodation we don't need to change, for example, the health district that we need to interact with, the mental health team that we may need to work with, et cetera, we can have continuity with those additional support services as well.  So that has been quite positive and we continue to work on that.

There are some things that need to be finished off for us to be able to have that property ready for Melanie, and when I say that    

MS CRAWFORD:  Can we come to that shortly?

MS OSBORNE:  Yes.

MS CRAWFORD:  All right.  So for quite a considerable period of time you and the governance group have been working towards identifying suitable accommodation for Melanie?

MS OSBORNE:  Yes.

MS CRAWFORD:  And sourcing the relevant funding that you need to support Melanie in her successful transition to the community?

MS OSBORNE:  That's correct, yes.  We have been working on it since May last year.

MS CRAWFORD:  And in fact before that you were also involved in trying to come up with a robust plan that would be successful in transitioning Melanie, weren't you?

MS OSBORNE:  Yes, that's correct.

MS CRAWFORD:  And the three main issues associated with transitioning someone like Melanie from a forensic setting into the community is identifying appropriate accommodation that can house Melanie and meet her needs?

MS OSBORNE:  Yes.

MS CRAWFORD:  Identifying community support service providers who can work with a client like Melanie?

MS OSBORNE:  Yes.

 
MS CRAWFORD:  But most importantly, or equally importantly, sourcing the funding necessary to meet those two criteria?

MS OSBORNE:  Yes and that probably is most important because without the funding it's very difficult to secure the other two.

MS CRAWFORD:  Now, the governance group, as you've already indicated, had identified a long term accommodation option for Melanie but it's a new build?

MS OSBORNE:  That's correct.

MS CRAWFORD:  Now, that's involved SDA funding, so that's Specialist Disability Accomodation funding, through the NDIS?

MS OSBORNE:  Yes.

MS CRAWFORD:  Can you explain to the Commission the process of applying for and successfully having a grant of SDA funding from the NDIS?

MS OSBORNE:  So to be able to secure SDA funding for a person, you obviously need to identify a property, and that property needs to meet a specific SDA criteria that's determined by the NDIA, and it's quite a lengthy process to go through for a property to be deemed SDA appropriate or particularly, then there is another layer across that which is in Melanie's case, she doesn't simply require just SDA, she requires robust SDA.  So the property, whether it's built or not, must comply with quite specific principles of design in relation to the SDA and then if it's to a robust level there is another layer across that as well.

CHAIR:  What does a robust level mean?

MS OSBORNE:  So making sure that the property has, for example, if I make a simple example, it might be particular fittings.  That means that the person can't than unpick screws in the property or unnecessarily do damage to themselves.

MS CRAWFORD:  And the long term accommodation meets that criteria?

MS OSBORNE:  Yes.

MS CRAWFORD:  That's correct, as it's planned any way, not currently built?

MS OSBORNE:  Yes.

MS CRAWFORD:  So that's the expectation.  The medium term accommodation, what's the situation with the medium term accommodation and the SDA funding?

MS OSBORNE:  So the medium term accommodation is currently not SDA approved and we have been in communication with the agency, NDIA, to  
understand how can that property be used for Melanie and also meet the criteria for SDA.  And we are currently working through that.

MS CRAWFORD:  So what does that involve, when you say we're working through that, what do you as the guardian have to do?

MS OSBORNE:  So at the moment my understanding is that we are asking not to go through the normal SDA process which can be very lengthy, and we've requested is there another way that the property could be SDA approved for Melanie, given we've been working to a release into community for this year.  If that SDA wasn't able to be achieved this year, then we would     it would mean we would be pushing her release well into next year.  So we are currently trying to understand what are the other options and pathways available to us to have that approved.

CHAIR:  As I understand it from your evidence, there are two separate issues at least.  One is to get approval for the accommodation that you consider would be appropriate for Melanie in the medium term and that's the process you've just been describing.  There is also the process that is required to get NDIS funding to enable Melanie to go into that accommodation.  What's exactly the position concerning the funding?  Has Melanie got the funding or is it dependent upon approval of the accommodation?  Just how does the interaction work?

MS OSBORNE:  So the SDA process is a separate process and, Commissioner, the separate process you are referring to is the SIL funding, which is the supported independent living.  Melanie's current status is that she did have a plan updated in May this year and it was a significant uplift in funding, however there is still no SIL funding within her plan.

We anticipate to request a plan review this September and are hoping that SIL funding will be included in that.  That allows us then to ensure that the provider we have chosen has the funding to be able to deliver the day to day support to Melanie to live in the property.

CHAIR:  Presumably the SIL funding won't be available unless and until the accommodation is approved, they are interconnected in that way, I assume?

MS OSBORNE:  They are.  They are, yes.

MS CRAWFORD:  So Ms Osborne, the SDA approval that has been already given for Melanie, is it correct to say that the last SDA approval that was given for Melanie was in 2019?

MS OSBORNE:  2019 into early 2020.  I can double check though, but they are the about dates.

MS CRAWFORD:  But that particular funding allocation was related to the long term accommodation?
 

MS OSBORNE:  Correct, yes.

MS CRAWFORD:  And if I understand your evidence correctly, what you say is because the long term accommodation is not now available in the timeframe that you had hoped, you've had to identify medium term accommodation to bridge that gap between the prospective release in October this year or November this year, and the 12 months that it will take to build the long term accommodation?

MS OSBORNE:  Yes, that's true.  Yes.

MS CRAWFORD:  But the SDA funding for the long term accommodation just can't be simply transferred to the medium accommodation, it has to go through a process of evaluation and approval?

MS OSBORNE:  Yes, that's my understanding.  You can't put them across properties.  That is for one property specified, and if you change properties, it starts again.

MS CRAWFORD:  Now, with respect to the medium term accommodation and the SDA funding still, what reports have had to go into the NDIS to try to support the approval of the medium term property?

MS OSBORNE:  So we are still trying to understand what's required for SDA because, as I said, the normal process won't meet our time frames.  But in addition to that, we have had an occupational therapist also review the medium term accommodation, and they have prepared a report which outlines the modifications that need to occur to the property to be able to support Melanie from a disability perspective to live there.

MS CRAWFORD:  All right.  And those are built modifications?

MS OSBORNE:  Correct.

MS CRAWFORD:  Is it an order for the building to be brought up to that robust standard that's required for the building for Melanie?

MS OSBORNE:  It's     they're modifications, if I can give an example, do there need to be particular ramps in particular places, or do there need to be changes in the bathrooms with railings, et cetera.  And there would be, as part of the behaviour support plan which is also coming, also some indication around what other changes need to happen to the property which would indicate SDA as well.

MS CRAWFORD:  All right.  Assuming you get the flexible approach to the SDA you're hoping for, you then have to secure, in addition, the SIL funding necessary to support Melanie in the community and meet her independent living disability needs?

 
MS OSBORNE:  Yes, that's correct.

CHAIR:  Ms Osborne, if the property that is being considered for the medium term for Melanie is adapted in the way you've indicated, why couldn't that be a long term solution as well?

MS OSBORNE:  Commissioner, it may well possibly be.  It is a large property.  The reason that we have gone with it is that we think that it really suits Melanie and, you know, the hopes and goals that she has.  It may be the case that it does turn into a long term property, but at the moment we've only sourced it as a medium term accommodation property, hoping that the longer term build would also meet her needs.  And it may be a new decision point in the future about where she does live, whether she remains in the medium term accommodation or if she chooses to go into the long term accommodation.  I don't think it would go     sorry.

CHAIR:  It might be that it would be better for Melanie to remain in the one place rather than get accustomed to one place and six months later have to move even to a new property.

MS OSBORNE:  It is true, and I don't think even if that did occur, the other building would go to waste because there is a significant shortage of SDA properties available to people.

CHAIR:  Thank you.

MS CRAWFORD:  Ms Osborne, with respect to the SIL funding, so that's the Supported Independent Living funding that is given by the NDIS, can you step the Commissioners through the application and approval process for SIL funding?

MS OSBORNE:  So to be able to apply for the SIL funding for a participant, it's being able to provide reports and evidence that supports what the person's disability is and what arethe day to day supports that they require to be able to live in the community independently.  And that's different for everybody, depending on their disability.

What also is required is having a roster of care which would come from the provider and that roster of care would articulate how many staff, for example, would support a person at different times during the day.  So there may be a need for a higher ratio of support during the day versus a ratio of support at night when the person is most likely to be asleep.  It is different for every single person depending on their needs.

Also usually, not in every case, but in the case of Melanie most definitely, there is also a behaviour support plan that would go with the roster of care as well to articulate how positive behaviour would be supported through those exact same people with the service provider.

MS CRAWFORD:  Now, the operational guideline for the application of SIL from  
the NDIS talks about only funding above the higher intensity price limits in a few cases.  Are you aware that Melanie's SIL funding will certainly exceed what the NDIS would consider to be their high intensity price limits?  Or is that something that you can't speak to?

MS OSBORNE:  I can talk to it generally from knowing Melanie's case very well and this in part feeds into her current circumstance.  I do think it's very difficult for the current provider who is planning to provide services in the community to her to be able to give an accurate roster of care, given they've only had a very limited amount of time to get to know Melanie.

As well, Melanie lives currently in a setting that is not the community and has lived there for a very long time.  So it's difficult to understand exactly how Melanie might need to be supported, at least in the short term to medium term in the community until she's had the ability to be in the community and see what she responds to, what she likes, where she needs support.  So I think that again comes back to individual cases.  But I would expect that Melanie will need a particular level of support given she hasn't lived in the community for nearly two decades.

MS CRAWFORD:  And would it be fair then to say that that level of support is likely to be very high in the initial transition period but over time one might be optimistic enough to consider that that level of support would reduce as Melanie stabilises in the community and becomes more settled in that environment?

MS OSBORNE:  Yes.  And I believe she has already shown that in the forensic system as well.  She went from a 5 1 ratio down to a core team of three when she moved from seclusion to the ward.  She is already showing great strides in improvement in being able to cope in different situations, so I wouldn't think moving to the community would be any different and I would expect that over time it would reduce.

CHAIR:  Can you give us any idea as to the funding that has been sought for Melanie to achieve this transition or is that not something that has yet crystallised?

MS OSBORNE:  That hasn't been completed yet, Commissioner, because we are not due to submit that until the beginning of September.  But it's currently being worked on by the provider.

MS CRAWFORD:  And, Ms Osborne, just to give the Commissioners an understanding of what that is, that depends on the roster of care that is projected into that particular plan and then the behavioural support needs and other core therapeutic needs?

MS OSBORNE:  That's correct.

MS CRAWFORD:  Melanie's needs in the community?

 
MS OSBORNE:  Yes.

MS CRAWFORD:  Chair, that might be an appropriate time to stop for the luncheon adjournment but I'm in your hands.

CHAIR:  Yes.  All right.  Well, it's just after 1 o'clock now.

Ms Osborne, I'm sorry to ask you to come back after lunch but if you wouldn't mind doing so, we shall resume at 2.00 pm.  Thank you.

ADJOURNED    [1.02 PM]

RESUMED    [2.01 PM]

CHAIR:  Yes, Ms Crawford.

MS CRAWFORD:  Thank you, Chair.

Ms Osborne, just before the luncheon adjournment we were talking about the SDA approval and the SIL approval.  I want to take you now to the governance group's project plan.  Now, that project plan was initially developed in 2020 and most recently updated in May 2021. There are six phases contained in that plan for that particular project for Melanie?

MS OSBORNE:  Yes.

MS CRAWFORD:  And it's correct to say, isn't it, that phase five of the plan which is the transition planning implementation and monitoring is dependent on phase four which is sourcing the funding?

MS OSBORNE:  Correct.

MS CRAWFORD:  And there have been a number of meetings within your governance group where NDIS participants have indicated to the group that where SDA funding is approved, that SIL funding will necessarily follow?

MS OSBORNE:  That's correct.  Yes, it will.  Sorry, I didn't hear you.  Did you say will or will not?

MS CRAWFORD:  Will.

MS OSBORNE:  Yes, that's correct.  NDIA     people from the NDIA have said in various meetings when SDA is granted, SIL funding follows.

 
MS CRAWFORD:  But at this present point in time there is no actual SIL funding allocated for Melanie's transition?

MS OSBORNE:  No, that's correct.  It's not currently in her plan.

MS CRAWFORD:  All right.  And with respect to the transition planning which has been taking a long time, is it fair to say that there is no plan B?

MS OSBORNE:  That's correct.  If the current medium term accommodation and then the following long term accommodation are no longer options because of funding or that they are no longer viable, we are back essentially to square one of replanning of what we might do next.

MS CRAWFORD:  And that takes your group back to their initial start date which was in 2020 but there was a group even prior to that that started working on Melanie's transition in 2018?

MS OSBORNE:  Yes, that's correct.  Because of how important funding is, but also equally important is being able to find a provider and a property for her to be able to live in.

CHAIR:  That requires, does it, a provider from the private sector?

MS OSBORNE:  Correct.  Yes.  And when we started this work we did our search far and wide and only came up with one who was willing.

CHAIR:  How long did the search take?

MS OSBORNE:  Commissioner, I could find out exactly from the specialist support co ordinator but it could take him quite some time, some months.

CHAIR:  And what was the problem in persuading potential service providers to become involved with Melanie's case?

MS OSBORNE:  I think, Commissioner, what generally happens, and it's true of Melanie's case, is that somebody who has complex support needs, whether it's because of their disability and/or behaviours, it is incredibly hard to find providers available. They are either already full or they simply don't have the experience and expertise that we would be looking for to be able to support someone like Melanie.  As well, there is generally a very limited number of SDA robust properties available which has been the case in this one.

CHAIR:  Do some of them become reluctant because of the complexities of the case?

MS OSBORNE:  Yes, that's very common. The Public Guardian would see, on a regular basis, service providers who agree to support someone and agreement is put in place, and that placement occurs, and then because the person is difficult to  
support or has challenging behaviours, they relinquish care and the person is left essentially homeless.

CHAIR:  In the olden days before NDIS, someone in Melanie's position more or less, I recognise of course that each case is unique, would have been able ordinarily to get into public accommodation of some kind provided by the State, wouldn't she?

MS OSBORNE:  That's correct. There was always, I guess, a last resort available to us.  It doesn't happen under the NDIA.

CHAIR:  That is precisely what is missing under the NDIS?

MS OSBORNE:  That's correct. You can't force a provider to take somebody.

CHAIR:  Yes.  Thank you.

MS CRAWFORD:  Ms Osborne, with respect to the governance group as well, part of your ongoing documentation of the governance group, you've a risk register for that governance group, don't you?

MS OSBORNE:  Yes, that's correct.

MS CRAWFORD:  A continuing item of risk on that risk register is the failure to secure the funding, the SIL funding in particular?

MS OSBORNE:  Yes.

MS CRAWFORD:  And that's noted also in the governance group's plan, the final project plan, that there is a very real risk of all of this work coming to nothing, but more importantly Melanie not being able to transition out of the Forensic Hospital if this funding is not secured promptly?

MS OSBORNE:  Yes, that's correct.  It's a real risk.

MS CRAWFORD:  Now, with your involvement in the conversations with the NDIS and the Hospital and the community team in New South Wales, there has been, in June 2021, the development of a Memorandum of Understanding between those three major players?

MS OSBORNE:  Yes, that's correct.

MS CRAWFORD:  And your understanding from March was that the NDIS was going to work through Melanie's case flexibly?

MS OSBORNE:  Yes, that's correct. That's my understanding.

MS CRAWFORD:  Can you explain to the Commissioners from your perspective  
what you thought "flexibly" meant?

MS OSBORNE:  I think from my understanding of working with them, "flexibly" meant that the normal rules and processes, while they would be followed, there would be some flexibility in being able to enable what needs to occur, such as funding, and the supports required, to come to fruition, given that Melanie's case is complex and is quite unique in some respects.  I will caveat that with, and I have said this previously, Melanie's case is not the most complex case the Public Guardian has on its books currently.

MS CRAWFORD:  All right. So with respect to the Memorandum of Understanding, you're not a party to that memorandum in your    

MS OSBORNE:  No.

MS CRAWFORD:  But the memorandum itself does actually authorise the parties to it to work flexibly and in a timely manner to get Melanie the earliest appropriate opportunity to achieve her transition?

MS OSBORNE:  Yes, that's correct.

MS CRAWFORD:  You're familiar with that document, aren't you?

MS OSBORNE:  Yes, I am.

MS CRAWFORD:  The memorandum.  So in your experience, is this an unusual circumstance that a Memorandum of Understanding with this level of detail would be developed for a case that's a transition case from a Forensic Hospital to community care?

MS OSBORNE:  I'm not aware of any other matter that the Public Guardian has been involved in where a Memorandum of Understanding has been required nor entered into, regardless of whether it's a forensic patient or not.

MS CRAWFORD:  All right.  So given that this was entered into in June, has it made any difference in your opinion?

MS OSBORNE:  What I have seen since it has been entered into is the three parties working together and meeting regularly.  Obviously the Public Guardian is not a party to those meetings but we do receive updates through the governance group through the members who attend those meetings.  I think from where I sit and my experience is we are starting to see a more collaborative approach but I feel we still have a fair way to go.

CHAIR:  I don't want to minimise the advance that is constituted by Memorandum of Understanding, but is it not a little curious that a person who is most affected is not represented there?
 

MS OSBORNE:  It is, Commissioner.  But I would note the Public Guardian's decision making doesn't extend to funding decisions, so I'm assuming that would be the reason why the Public Guardian is not a party. Because the majority of what needs to be flexible is decisions around funding and who is going to fund what supports, which doesn't involve the Public Guardian.

CHAIR:  The Public Guardian is vitally involved on behalf of Melanie to ensure the best outcome is achieved in her interests?

MS OSBORNE:  Yes, that's correct.

CHAIR:  Isn't that part of the role?

MS OSBORNE:  Yes, that is correct.

MS CRAWFORD:  And the governance group is still meeting with representatives from each of the parties as well from the Memorandum of Understanding parties monthly?

MS OSBORNE:  Yes.

MS CRAWFORD:  And the Memorandum of Understanding itself also reflects the project plan that was developed by the governance group and the six phases of that plan we've spoken about already?

MS OSBORNE:  Yes, that's correct.

MS CRAWFORD:  So the Memorandum of Understanding being signed in June and having quite high level, I would suggest, authority for co operation between these three agencies to try to come to some agreement about who is responsible for what for Melanie. You said they're having a lot of meetings and they are being co operative.  Is it fair to say that there has been a lack of decisive action taken than by those high level actors in this space?

MS OSBORNE:  I don't feel like I can answer that because I haven't been a party to the meetings.  But I will say, although the MOU is in place, I'm yet to have a decision on probably the key components you've already covered which are stalling us from moving forward at the moment.

CHAIR:  I'm sorry to interrupt again, but the document we're referring to, the Memorandum of Understanding, states in paragraph 11(f):

That the parties note and have a shared understanding that SDA funding at the robust level has been confirmed by the NDIA and is included in Melanie's NDIS plan.

 
I may have misunderstood but I rather thought the SDA funding had not been in fact finally approved.  Have I misunderstood something?

MS OSBORNE:  Yes.

MS CRAWFORD:  Yes, Chair.  The SDA funding for the long term accommodation has been approved but it hasn't been approved for the medium term accommodation which is Melanie's option because the long term accommodation won't be ready for another year or so.

CHAIR:  I see.  So that is dependent upon the accommodation actually being built on the    

MS CRAWFORD:  The long term accommodation isn't built but the medium term accommodation isn't approved.  So there is that challenge as between the long term accommodation and the medium accommodation.

CHAIR:  So on average things are good?

MS CRAWFORD:  Now, Ms Osborne, you said a moment ago that Melanie wasn't your most complex client.

MS OSBORNE:  Correct.

MS CRAWFORD:  Are these other clients of yours who are more complex than Melanie cared for in the community?

MS OSBORNE:  They are.  They are, yes.

MS CRAWFORD:  Have you also had to negotiate with the NDIS to the extent that you've with Melanie for funding for them?

MS OSBORNE:  So in each case we have needed to do significant advocacy, escalate through different pathways, request reviews of decisions.  Sometimes we may get the funding that is required and other times the person goes without, and we continue to raise concerns about what that means for the person who is not then properly supported.  It does put them at risk of a whole range of things while they're trying to live in the community.

MS CRAWFORD:  So those escalation pathways that you are talking about, can you explain to the Commissioners what they are?

MS OSBORNE:  So some of the pathways available to the Public Guardian and NSW Government include an escalation pathway which has got three different levels.  The acronym is CSIR and I don't have it in front of me to tell you what the acronym is off the top of my head, there's so many acronyms, sorry.

 
MS CRAWFORD:      (overspeaking)     services (inaudible) response.

MS OSBORNE:  Thank you.  When there is a problem with a person's plan or break down in service provision, usually our guardians will try to rectify that with a support co ordinator or the NDIS at a local level.  For some instances that can't be then rectified at that level and then we have a series of pathways or escalation points that we can escalate to.  And one of the highest levels is Escalation 3, where it goes to a Director within the NDIA to review, whether it's a decision around planning or funding or what support someone may or may not receive.  And I would say in my time with the Public Guardian since October 2019, I have seen the number of times we've needed to use a pathway like that increase quite significantly.

MS CRAWFORD:  And in the annexure or the appendix to your statement, you talk about since January 2020 having escalated approximately 25 matters through that pathway?

MS OSBORNE:  That's correct.  Yes, that's correct.

MS CRAWFORD:  And the majority of those relate to issues around SIL funding?

MS OSBORNE:  Yes, that's correct.

MS CRAWFORD:  And is that what you alluded to a moment ago when you said sometimes people don't get the funding they need?

MS OSBORNE:  Yes, and to give an example, it may be that we have evidence from a health professional that a person requires one to one support 24/7, and that will be the request that is asked for in the participant's plan funding, and the decision will come back that it will be less than that.  So then we have periods of time that people who genuinely need support go unsupported so they are at risk in the community.  And when I say at risk, it could be that they're not properly supported to do daily tasks that they need to live, or it may be that they are not properly supported to re divert them away from particular behaviours as well.

MS CRAWFORD:  And thinking on those particular examples where you've  had a health professional who has undertaken an assessment, has drafted a report, forwarding that report in to the NDIS for that funding, and then being told that they're not getting that funding, it's less than that, do you get an explanation as to why it's less than that?

MS OSBORNE:  Sometimes, and it varies.  Sometimes we would get some explanation.  We have had instances where we've been basically just told it doesn't meet what is deemed to be reasonable and necessary, and we're still trying to understand what is reasonable and necessary.  And it is not unusual for us to have two people that we represent who may have similar circumstances or scenarios and disability and one person's plan will be funded far greater than the other person's but we can't determine what's different in relation to the evidence and why that decision  
has been made.

MS CRAWFORD:  Is there a pathway for you to seek clarification of those particular inconsistencies?  How do you deal with that?

MS OSBORNE:  Usually what will occur is we'll put in a review of decision to the agency and ask them to review the original decision that was made.  Beyond that, if that decision still comes back as upheld, we do have the ability to take a matter to the AAT.

MS CRAWFORD:  As a judicial review type process?

MS OSBORNE:  Correct, yes.

MS CRAWFORD:  How many times have you done that?

MS OSBORNE:  I don't have the AAT number of matters that we've taken, but I can provide that.

MS CRAWFORD:  Thank you.  Now, with respect to those matters that you've had to escalate through that pathway, the CSIR pathway, whether it's level 1, 2 or 3, does your office keep the data with respect to those escalations?  Do you report on those at all?

MS OSBORNE:  We do it for our own purposes so that we are able to track what has been successful, what has been escalated.  It can be somewhat difficult to keep a track of, given there is usually multiple people involved, but we are keeping a track of those now so that we've got some data to go on as well.

MS CRAWFORD:  All right. And you're doing that now.  Is that something that you would report on perhaps in your annual report or is there some other formal mechanism you might consider reporting that data?

MS OSBORNE:  So we have just     we don't necessarily report it in our annual report but what we do use it for within NSW Trustee & Guardian is to     it's one of our indicators for customer outcomes to be able to show the advocacy work that we do as the Public Guardian, and also be able to track over time either the growth or decline in having to do that.

MS CRAWFORD:  All right.  Would you expect that that data might be useful if it could be fed back to the NDIS in some way, that there is a percentage of people that you manage that you have to escalate, and how that number is fluctuating perhaps?

MS OSBORNE:  I think it would be.  And I would say, given for the Public Guardian, we currently represent over 3,500 people in New South Wales, and about 50 per cent of them are NDIS participants so it's not a small number of people we represent.  I would think that we are a good stakeholder to be gathering data off in  
relation to not only escalations but other issues that we're seeing.  I have a whole team of guardians who do this work full time and at times we struggle to understand what we need to do next or navigate.  So that makes me think about what does that mean for a family member who is trying to do this on their own or more importantly, the participant themselves.

MS CRAWFORD:  Now, you mentioned earlier that there was a huge demand for specialist disability accommodation, and if in future Melanie ends up transitioning to the medium term accommodation and it becomes her long term accommodation, that there wouldn't be any difficulty in filling the new build.  Do you have any indication from the people that you represent or are a guardian appointed for, how many of those who are NDIS participants are currently waiting for SDA approved accommodation?

MS OSBORNE:  I don't have any figures that tell me how many are waiting, but anecdotally I know we do have quite a few people who would benefit from being in SDA property or need to be in an SDA property, and what tends to happen is if we can't find an SDA property that's appropriate for them, we then end up having to find something that is less than suitable, and a good example would be trying to find someone a place to live on the open private rental market which is incredibly difficult.  Inmany instances it's not appropriate for the person with disability.

MS CRAWFORD:  Now, you mentioned a moment ago about not having clarity around understanding what is or isn't reasonable and necessary from the NDIS responses that you have got.  How would you clarify what that is?  What do you think they should do?

MS OSBORNE:  I think it would be helpful firstly for the Agency to understand from stakeholders and from participants what is it that is a struggle to understand and what then would be helpful from their perspective.  And then I would hope it would be a collaborative effort in trying to make available to people what is it that you need to provide, what is it that we will fund and won't fund in a clearer way.  I will acknowledge that they do have information available, but I think picking up previous comments is that at times it's very difficult to navigate that information and understand exactly what it is.

CHAIR:  The NDIS has published, I assume, a document that is available to all dealing with reasonable and necessary supports.  I see it's 42 pages long.  Are you familiar with that document?

MS OSBORNE:  No, I'm not.

CHAIR:  I believe it's a public document.  It seems to be attached to Mr McNaughton's statement, and I just wondered whether it was regarded by you or the people with whom you work, whether it was a helpful analysis of what constitutes reasonable and necessary supports, but if you are not familiar with the document I don't think you can help us.
 

MS CRAWFORD:  Ms Osborne, with respect to the approach to people with disability who are participants in the NDIS, do you see a difference between physical disabilities perhaps and cognitive disabilities and the approach of the agency as between those two issues?

MS OSBORNE:  I think in my experience, what tends to be obvious, particularly for the Public Guardian, we represent people and we're appointed as a last resort, so there is usually a good reason why we've been appointed.  So the person has very complex behaviours or disability, and doesn't have an appropriate support network.  So usually a high proportion of those have a cognitive disability because they lack the ability to make their own decisions.  My experience and observations of the scheme have been that you need a significant amount of support and understanding to be able to navigate the system.  For someone with a cognitive disability, they are already at a disadvantage.  It's difficult to be able to understand what it is that you need or what is available to you.  And I would also say from the matters we're involved in there, is just genuinely a higher need of support, whether it's through appropriate accommodation or through a person's disability.

I think when you look at the physical disability versus a cognitive disability, it wouldn't be unreasonable to think the scheme is better placed to support a person with a physical disability only, and in no way am I saying --- it shouldn't, because it should, but it also seems to be much more of a challenge to support someone with a cognitive disability.  An example would be for me where we have had people with a cognitive disability, and they've had a particular level of funding and then the plan review has come up.  Their circumstances, their disability, nothing has changed, yet the amount of funding has been halved, and then we spend a lot of time trying to advocate and understand why that has happened that's left the person with less than ideal support.

COMMISSIONER McEWIN:  Ms Crawford, if I could interrupt.

Ms Osborne, on that very last point, do you therefore think you should be part of that MOU or the three parties that have come together that you said you are not a part of?  So if there's a significant amount of advocacy or support needed and if that MOU is to discuss the extensive planning and decision making around Melanie's living arrangements, can you just clarify and help me understand better why you are not perhaps part of that?  Thank you.

MS OSBORNE:  No problem.  I think the MOU is clear in the respect that it is dealing with the decisions that need to be made outside of the normal NDIS and State Government decision making processes.  The MOU does reflect the role and the decision making authority of the Public Guardian.  I'm comfortable with that.  And we have had regular updates from our colleagues in the Department of Communities and Justice who are a party to those meetings.  So, yeah, I am comfortable the MOU deals predominantly with decisions outside our decision making remit, and we are getting information flowing back.  So in short, I am comfortable we are not a party to  
the MOU at this stage.

COMMISSIONER McEWIN:  Thank you.

MS CRAWFORD:  Ms Osborne, with respect to Melanie's transition and the MOU as it stands, it's not only those three parties.  They may be the responsible ones as far as the money goes, but you also have to navigate the Mental Health Review Tribunal as well, don't you?

MS OSBORNE:  Yes.

MS CRAWFORD:  And put before the Tribunal the transition plan and demonstrate to the Tribunal that there is in fact sufficient supports for Melanie, that the risks to the community and her mental health are adequately treated and managed in an environment that is not a secure environment, that's correct too, isn't it?

MS OSBORNE:  Yes, it is.  Yes.

CHAIR:  What role has Melanie herself played in this entire process as far as you understand it?

MS OSBORNE:  So in relation to Melanie, her guardian and the specialist support co ordinator have been her voice in the governance group.  So as the Public Guardian representing her, that is how that has occurred.  And the guardian who is responsible for Melanie has regular phone conversations, and in person conversations when we could, around what is occurring, what the progress is.  Also honesty around what some of the barriers are as well.  It has been a delicate conversation to balance because we want to make sure that Melanie still maintains hope, but for a long time we haven't been able to give her a date, which is also very frustrating for her.

Also, Melanie participates in the Mental Health Review Tribunal hearings herself, which has been great to see and to hear what Melanie has to say.  So we're always top of mind around making sure Melanie is at the centre of what we're doing, even if it's just updating people about how she's going so people can remember we are actually talking about a human here that we are trying to have a better life.

CHAIR:  Is Melanie clear as to what she wants out of this process?

MS OSBORNE:  Melanie would like to live in the community.  She would like to be able to do simple things like cook, have a pet dog.  She loves animals.  She would like to be able to access the community in such activities as going to the beach.  I think her wish list is reasonably simple and she has been consistent in her goals and hopes.

CHAIR:  Is it your position that the Guardian seeks to implement Melanie's wishes as conveyed to you?

 
MS OSBORNE:  As the Guardian, our role is to make decisions to allow that to happen but also take into account what risks there might be and how we might work with others to mitigate those risks.  We then would rely on service providers to implement the actual transition out into the community.

CHAIR:  Yes.  Thank you.

MS CRAWFORD:  And, Ms Osborne, with respect to the Mental Health Review Tribunal reviews of Melanie's situation in the Forensic Hospital, that would ordinarily happen every six months, wouldn't it?

MS OSBORNE:  Yes, that's correct.

MS CRAWFORD:  But the most recent Mental Health Review Tribunal was not held because you were hoping to be able to put before the Mental Health Review Tribunal the transition plan with the funding attached in a more black and white way?  Is that correct?

MS OSBORNE:  That's correct, yes.

MS CRAWFORD:  When is the next Mental Health Review Tribunal due for Melanie?

MS OSBORNE:  The next one was due at the end of this month, and that's the one which we've asked to have the date moved so we are not meeting at the end of the month and then again soon after hopefully with a plan.  We would like try and be able to do that in one go.

MS CRAWFORD:  So you're hoping the Mental Health Review Tribunal will meet towards the end of September and there will be some clarity around that date with this plan being funded and supported?

MS OSBORNE:  Yes.  Yes, that's correct.

MS CRAWFORD:  Because the date still is the October 2021 date as the notional date that you're all aiming for?

MS OSBORNE:  Yes, that's correct.

MS CRAWFORD:  All right.

Chair, I have nothing further.  I don't know if Ms Needham might want to clarify anything, or if any of the other parties might.

CHAIR:  Yes.  I will ask Ms Needham first if there is anything that you would like to ask.

 
MS NEEDHAM:  No.  Thank you, Chair.

CHAIR:  Perhaps what I will do is ask my colleagues if they have any questions and invite other counsel to ask questions.

First, Commissioner Mason, do you have any questions you would like to put?

COMMISSIONER MASON:  No thank you, Chair.

CHAIR:  Commissioner McEwin?

QUESTIONS BY THE COMMISSION

COMMISSIONER McEWIN:  Yes, Chair.  One question from me.

Ms Osborne, at paragraph 15 of your statement you talked about what you were advocating for the funding to include, capacity building, behaviour support plan and so forth.  Is there anything that relates to helping or assisting Melanie to develop informal networks and so called friends and informal networks in the community?  Is there anything planned in that respect?

MS OSBORNE:  So we have been working, and the specialist support co ordinator has been working on family connections, and the plan being that if we could establish and find family connections, what that might look like for Melanie and how we would use the plan funding to support that.  Also, Melanie has made it quite clear to all of us that she is also wanting to connect back to her culture as well as a First Nations person, so work is underway as well to understand how we can achieve that.

She has been able to recently reconnect with friends she has known who are in the community now and they were     prior to the COVID restrictions in Sydney --- they were able to visit her as well.  So that has been rather positive.

To answer the question, yes, that is something we continue to strive to and work towards, and that would fall under her capacity building for relationships.

COMMISSIONER McEWIN:  Thank you.

No further questions, Chair.

CHAIR:  Thank you.  I will ask first Mr Arnott, do you have any questions you wish to put?

MR ARNOTT:  No, thank you, Commissioner.

CHAIR:  Ms Furness?
 

MS FURNESS:  No, thank you, Chair.

CHAIR:  Ms McMillan, do you have any questions?

MS McMILLAN:  No, thank you, Chair.

CHAIR:  I will assume there is no questions from Victoria unless Ms Bedford leaps up and tells me otherwise.  All right.  Thank you.

In that case, Ms Osborne, thank you very much for coming to the Commission once again and giving evidence.  Both your statement and your evidence are very helpful and we thank you for your contribution.  Thank you very much.

MS OSBORNE:  Thanks.

THE WITNESS WITHDREW

MS CRAWFORD:  Thank you, Chair.  I will hand back to Dr Mellifont.

CHAIR:  Dr Mellifont, are we able to proceed immediately or will we have a short break?

DR MELLIFONT:  We need five minutes, but before breaking can I confirm that the justice operational guideline which is attached to Mr McNaughton's statement has the red marking of internal purposes only.  It also appears on the website for the NDIA under their guidelines tab with obviously that red marking removed, so I have confirmed that it is a publicly accessible document on the NDIA website.

If we could have three or four minutes, until 20 to 3, please.

CHAIR:  According to my watch, let's resume at 2:45.

DR MELLIFONT:  Thank you, Chair.

ADJOURNED    [2.38†pm]

RESUMED    [2.45 PM]

CHAIR:  Yes.  Mr Power.

MR POWER:  Thank you, Chair.  Chair, the next witness is Ms Christine Faulkner.
 

CHAIR:  Yes, thank you.

Thank you, Ms Faulkner, for coming to the Royal Commission to give evidence.  I understand that you will take the affirmation.  If you would be good enough to follow the instructions of my associate and she will administer the affirmation to you.  Thank you.

MS FAULKNER:  Thank you.

MS CHRISTINE FAULKNER, AFFIRMED

CHAIR:  Thank you, Ms Faulkner.  Just to explain where everybody is.  Mr Power and other counsel are in our Brisbane hearing room.  Commissioner Mason, who you can see on the screen, is in Canberra.  Commissioner McEwin is in Sydney but at a different location than I am.  And I am also in Sydney.  So that's where we are.  I shall now ask Mr Power to ask you some questions.

EXAMINATION IN CHIEF BY MR POWER

MR POWER:  Thank you, Chair.

Ms Faulkner, could you tell the Commission your full name and your present occupation.

MS FAULKNER:  Thank you.  My full name is Christine Faulkner.  I'm currently Assistant Secretary with the National Taskforce for COVID Delivery, Department of Health, for Disability.

MR POWER:  Thank you.  I understand you've been seconded from the NDIA to Health from 29 March this year?

MS FAULKNER:  Correct.

MR POWER:  Prior to that point when you were seconded to Health, what was your role with the NDIA?

MS FAULKNER:  Prior to my secondment I was branch manager for complex pathway and young people in residential aged care.

MR POWER:  How long were you in that role?

MS FAULKNER:  Six months.
 

MR POWER:  Prior to that point in time, what was your role with the NDIA?

MS FAULKNER:  General Manager, operations and support.

MR POWER:  And then how long were you in that position?

MS FAULKNER:  Six months.

MR POWER:  All right.  And then prior to that point in time what was your role?

MS FAULKNER:  General Manager, participant focus.

MR POWER:  All right.  And if I can take you back even further to 2018, what was your role with the NDIA at that time?

MS FAULKNER:  At 2018 I was what was called then General Manager for operations.

MR POWER:  All right.  So what you've just described obviously demonstrates that you've undertaken a number of very senior roles in the NDIA over a period of time.  When did you first commence work with the NDIA?

MS FAULKNER:  I commenced with the NDIA in 2016.

MR POWER:  All right.  Now, I'm first going to ask some general questions before moving to some specific cases.

Firstly, I want to ask you about the National Disability Insurance Scheme (Support For Participants) Rules of 2013. You're familiar with those rules?

MS FAULKNER:  I am familiar, yes.

MR POWER:  All right.  Is it correct that they are subordinate legislation created to facilitate the Act itself in its operations?

MS FAULKNER:  Correct.

MR POWER:  All right.  I wanted to take you to a particular section which is 7.23 which defines a person in custody to mean a person held in a custodial setting which is then further defined to mean a secure mental health facility.  In short, that a person in custody under the rules is not just a person in the prison but also a person in a secure mental health facility.  Are you aware of that?

MS FAULKNER:  Yes.

MR POWER:  Now, part of the administration of the NDIA and the NDIS is a Joint  
Standing Committee on the NDIS, and are you aware that in December 2020, that Joint Standing Committee on the NDIS expressed concern that participants in custody may have access to less supports than other participants?

MS FAULKNER:  I am aware of that, yes.

MR POWER:  All right.  And going back slightly earlier, that same Joint Standing Committee in August 2017 recommended that the NDIA urgently clarify what approved supports are available to NDIS participants in custody, and how the NDIA monitors and ensures NDIS participants access to the supports they are entitled to whilst in custody.  Now, that was a rather long statement but were you aware that the Joint Standing Committee on the NDIS had said that in August of 2017?

MS FAULKNER:  I recall that but don't recall the date.

MR POWER:  All right.  Now, obviously you were in roles that were connected in one way or another to this area of NDIS participants.  Now, are you aware of whether there was an NDIA response to those     whether the August 2017 or December 2020 concerns and recommendations about NDIS participants in custody, were you aware of any response by the NDIA to that?

MS FAULKNER:  The agency's response to that, amongst others, not specifically about justice, was those people that had complex needs resulted in the development of the complex pathway.  So planners working within that pathway with a skill set to work with people with complex needs.

MR POWER:  All right.  Earlier today, I'm not sure if you were present for the opening, a document called the NDIS Justice System Guideline was placed onscreen and discussed.  It was a document that came into operation on 3 June 2021.

Now, I'm aware by that point in time you had left Health.  Did you have any involvement in that NDIS justice system guideline being developed?

MS FAULKNER:  No, I didn't.  I wasn't involved in the development of those guidelines.

MR POWER:  All right.  I'm going to come to a discussion of Melanie's case in a short time but putting matters in general terms, would you agree that the division of responsibility between the States, Territories and the NDIS for persons with cognitive disability who are held in prison or a secure mental health facility is quite difficult to apply?

MS FAULKNER:  A good question.  Look, against the guidelines, the APTOS and our Act and our operational guidelines, I believe it's applicable.  Not too difficult to apply in a planning conversation.

MR POWER:  All right.  And has that     I'm aware obviously that you left in March  
of 2021 but between 2018 and 2021 were there any     sorry, I'll start again.  Was that the same back in 2018 as it was when you left in 2021?

CHAIR:  Was what the same?

MR POWER:  Was it as easy to apply the division of responsibilities between States and Territories for the NDIS for a person with cognitive disability held in prison or a secure mental health facility?  Was the ease of applying or determining that division the same in 2018 as you have said it is as at March 2021?

MS FAULKNER:  The agency has matured a lot since 2018 so it may not have been as easy at that point in time, but with the development of a more skilled workforce I believe it has become easier.

MR POWER:  All right.  And are there any aspects of that division that you can pinpoint as having become clearer since 2018?

MS FAULKNER:  The development of the guidelines and the introduction of the complex pathway and of the liaison officers has made that easier.

MR POWER:  All right.  By the guidelines are you referring to the NDIS Justice System Guideline?

MS FAULKNER:  Operational guidelines and the Justice Guidelines, yes.

MR POWER:  Right.  Now, that document, that "Justice   Operational Guideline", CTD.8000.0013.1110, is quite sparse in terms of detail.  Would you agree with that?

MS FAULKNER:  I think     yes, I can see the detail in that which makes it explanatory to people that would look at that document to be able to help them understand the service system.

MR POWER:  Right.  Well, that document is publicly available and that document is meant to guide both NDIS participants and any advocacy agency acting on their behalf. Is that correct?

MS FAULKNER:  Correct.

MR POWER:  And that's also the document that would guide an internal decision maker.  Is that correct?

MS FAULKNER:  It would help guide the decisions, yes.

MR POWER:  Right.  Now, in that document there is only one example, given and it's referred to as a person called Ian and the document doesn't even detail what disability the person Ian has.  Are you aware of that?

 
MS FAULKNER:  I know there is an example.  I can't recall the specifics of that example from this morning, no.

MR POWER:  All right.  When you say that the delineation between States and Territories' responsibility, and those that are the responsibilities of the NDIS, the simplicity or relative simplicity of that task, you say, is performed by that document, the Justice Operation Guideline?

MS FAULKNER:  It is one piece that informs the decision making.

MR POWER:  Well, as far as an NDIS participant or an agency acting on their behalf, that's the document they would go to, isn't it?

MS FAULKNER:  Yes.

MR POWER:  All right.  Now, onscreen is the example of Ian.  Can you see that?

MS FAULKNER:  Yes, I can.

MR POWER:  In terms of an example, would you agree that it really doesn't perform any useful task for somebody trying to use it as an example to work out what rights they may have?

MS FAULKNER:  I mean, this is just one example of many people that have different disabilities, so it would be complex to put many examples in.  I think this is just trying to demonstrate a simple example of what supports would be available and a conversation would be had between the planner and the participant.

MR POWER:  All right.

MS FAULKNER:  With regard to that example though, it doesn't detail what disability Ian has, and simply says that his day to day needs are being met by the correctional facility.

MS FAULKNER:  Yes.

MR POWER:  As an example, you would agree that that, as an example, doesn't assist in any form of establishing what rights Ian might have against the NDIS support?

MS FAULKNER:  If that example is taken on its own merit, then probably not.

MR POWER:  All right.  Now turning to transitional supports, again the Rules that I've referred to earlier, the 2013 Rules, define transitional supports for a person in a custodial setting to mean supports to facilitate the person's transition from the custodial setting to the community that (a) are reasonable and necessary and (b) required specifically as a result of a person's functional impairment.
 

MS FAULKNER:  Correct.

MR POWER:  Now, firstly, it is the responsibility of the NDIS to provide those transitional supports as described to individuals with disability.  Is that correct?

MS FAULKNER:  Alongside the justice transition supports that is provided to every person in a justice setting.

MR POWER:  All right.  Now, if that is the question, isn't it?  So a prisoner, when they leave a prison, who doesn't suffer a disability, will receive, in some cases, no support whatsoever other than arguably a train ticket.  Others will be required by ongoing orders to do certain things, live in certain places and to have their conduct governed by parole.  But if we're talking about a person with a disability, the NDIA has the responsibility to provide those, and I will just read from the Act again:

Those supports that are reasonable and necessary and required specifically as a result of a person's functional impairment.

Now, I don't think we're in disagreement.  You've said what's provided is in addition to the supports given to an ordinary prisoner.  But it is correct, isn't it, that the NDIA has a responsibility to provide supports that are, and I will perhaps read it one more time, reasonable and necessary and required specifically as a result of a person's functional impairment.  Do you agree with that?

MS FAULKNER:  Yes.

MR POWER:  In terms of determining what supports for a prisoner with a cognitive impairment, leaving prison or a mental health facility, are reasonable and necessary and required specifically as a result of a person's functional impairment?  It's essentially discretionary, isn't it?

MS FAULKNER:  It's not discretionary, it's based on a functional assessment of somebody's impairment.  So a functional assessment needs to be carried out to determine the level of impairment and to determine the level of supports required.

MR POWER:  All right.  And where there is a determination made that somebody is in need of support, the distinguishing between the problems that are caused for them in that transition arising from their disability and those that are said to result from their criminogenic behaviour is a very difficult task, isn't it?

MS FAULKNER:  It can be, yes.

MR POWER:  All right.  In some cases, particularly with people with cognitive disabilities, would you agree it's simply not possible to disentangle the two?

MS FAULKNER:  As you said, it's quite difficult.  I guess it's a conversation that has  
been had in academic circles for a long time to determine what is a disability offence compared to a criminogenic offence.  On those terms I would say it's complex.

MR POWER:  All right.  And in terms of does the NDIS or, sorry, does the NDIA accept when experts give an opinion that some needs in transition are due to disability, even if it has a connection to reducing risk?

MS FAULKNER:  Our assessments are based on experts doing those assessments and we would fund according to those expert assessments.

MR POWER:  So the NDIS would not dispute the experts' opinion with regard to whether, ultimately, some criminogenic behaviour is due to the disability?

MS FAULKNER:  Again, I don't think that evidence has shown that criminogenic behaviour is caused from a disability.  We would fund according to a social assessment done by an expert.

MR POWER:  Well, you would agree, wouldn't you, that some people with cognitive disabilities have behaviours that can be treated criminally but that those behaviours are due to their disability?

MS FAULKNER:  Again, that is an expert opinion that I can't make a personal opinion on.  An expert will decide what is criminogenic versus a disability.

MR POWER:  And if a report came from a suitably qualified expert, would the NDIS accept that disentanglement or would it not do so?

MS FAULKNER:  We would     if we were provided that report and had some questions, we would provide it to our technical advisory branch to help make a decision.

MR POWER:  All right.  And that ---

MR ARNOTT:  I don't mean to interrupt my friend but I was wondering whether Ms Faulkner wanted to take the opportunity to turn the lights back on in the room.  I'm having trouble seeing.

MR POWER:  I apologise.  I hadn't noticed that.

CHAIR:  We understand the Commonwealth's need to save money.

MR ARNOTT:  Thank you.  I'm sorry to interrupt.

MR POWER:  So turning from that area to the two case studies that were given the pseudonyms "Melanie" and "Winmartie", now, you are aware of both those case studies?

 
MS FAULKNER:  I'm more aware of Melanie than I am Winmartie, yes.

MR POWER:  I will deal with Melanie first and come to Winmartie at the end, and if the questions I ask are not ones you can answer, please indicate that.

The NDIA had a branch called the Complex Needs Support Branch, isthat correct?

MS FAULKNER:  Correct.

MR POWER:  Does the NDIA still have that branch?

MS FAULKNER:  Yes, they do.

MR POWER:  Were you at one point the manager of that branch?

MS FAULKNER:  Yes, I was.

MR POWER:  All right.  And what period of time were you the manager of that branch?

MS FAULKNER:  So I was branch manager prior to the secondment to the Department of Health for six months, and I was General Manager of advisory services of which the complex branch were under that division.

MR POWER:  Right.  So you were at a higher level, sorry, I apologise.

MS FAULKNER:  Correct, yes.

MR POWER:  All right.  Is it correct that the Complex Needs Support Branch was the primary contact and the decision maker     sorry, I'll rephrase that.  A suitable person within the Complex Needs Support Branch was the decision maker for the NDIA in relation to NDIS funding for Melanie and Winmartie?

MS FAULKNER:  A planner will make a decision on funding against their delegation level.  So if it's a very high cost plan, then it would go to someone who has higher delegation.

MR POWER:  Using Melanie as an example, would that have been someone within the Complex Needs Support Branch?

MS FAULKNER:  With Melanie, at the beginning of her plan, it would be a planner within the complex team.

MR POWER:  At some point did it have to go higher?

MS FAULKNER:  I understand Melanie's recent plan was a high cost.  I'm not sure what that high cost was but that would have gone to a higher delegate.
 

MR POWER:  All right.  Now, the documents we have, indicate that you had some personal involvement on behalf of the NDIA in relation to Melanie's case since at least 18 May 2018 which was when there was a high level meeting about Melanie's case held at the Forensic Hospital.  You may not have the date in front of you but do you remember attending a meeting at the Forensic Hospital in relation to Melanie's case?

MS FAULKNER:  I remember seeing that from the documents and I unfortunately don't remember specifically attending the meeting at the time.  Obviously many meetings, with many participants and Melanie, was very new to me then.

MR POWER:  Okay.  Well, that was going to be my next question.  So you've indicated you've seen the document and I'll perhaps just bring it up.  It's CTD.8000.0002.6547.

Commissioner, that's tab 30 in Tender Bundle E.

Now, the cover page notes that it was at the Forensic Hospital in New South Wales, Sydney, and that you attended along with three other people from the NDIA.

Now, you said that that was early in your knowledge of Melanie's case.  Do you remember any briefing you had prior to that or not?

MS FAULKNER:  I don't recall a briefing prior to that, no.

MR POWER:  All right.  Now, there are a number of people present at that meeting.  The names of them have been removed, but we can see their titles and they include yourself described as General Manager.  Then another person, Regional Manager, Assistant Director Service Delivery and a Planner Service Delivery.  Now, of those four people, you were the highest in the hierarchy?

MS FAULKNER:  Yes, I was.

MR POWER:  All right.  Now, at that time or at least by the time the meeting was well underway, you were aware from the briefing within the meeting itself that there was opinion evidence from the hospital itself that the Forensic Hospital was a poor environment for Melanie to stay in?

MS FAULKNER:  I don't recall the discussion, but I have read the documentation.

MR POWER:  All right.  And so at the second page, 6548, a doctor at the hospital reiterated that the Forensic Hospital is a sub optimal environment for Melanie and indicated she is most appropriately managed in a contained and structured environment.  Now, is that at least consistent with your memory of what was said at the meeting?

 
MS FAULKNER:  Yes.

MR POWER:  All right.  Now, those minutes also state, and it's in about the middle of the same page, that is, page 6548     sorry, there is a clicking sound from somewhere     In the middle of the page     sorry, someone may have mute not off.  It's stopped.  Sorry     Sorry, Ms Faulkner.

So in the middle of the page you can see that the minutes state:

Christine Faulkner clarified that the NDIA is responsible for funding services and supports, rather than accommodation.  Christine Faulkner identified the NDIA are seeking information on what services and supports Melanie requires.

Now, is that, to the best of your recollection, what you said in that meeting?

MS FAULKNER:  If that's on the document then I have to agree that that's what I said.

MR POWER:  Okay.  Now, was that your opinion at the time that the NDIA was responsible for funding services and supports, not accommodation?

MS FAULKNER:  No.  My opinion has always been that we fund supports against functional impairment and accommodation is also funded in specific cases.  As I was new to this case at the time and the statement there that you said that Forensic Hospital is not an ideal location for Melanie, I wasn't aware yet what sort of accommodation would be suitable.

MR POWER:  Well, if we go up the page, we can see that the introduction noted that, in the bottom of the first paragraph:

The Forensic Hospital is sub optimal for Melanie and she will require funding support from both NSW Health and the NDIA to transition to a more appropriate placement.

Now, you were aware, weren't you, that what this meeting was about was trying to get Melanie out of the hospital into some form of supported accommodation?  Do you agree with that?

MS FAULKNER:  I agree with that.

MR POWER:  Now, it's correct, isn't it, that     and I'm taking this from "Practical Guide Housing Solutions", which is an NDIA document, which is CTD.8000.0004.3749.  But going to the page that is page 6, which is 3755.

On that page it gives an estimate of what supported disability accommodation is likely to be part of NDIS capacities, and it indicates that it will be approximately 6 per cent of NDIS users who will have supported disability accommodation with an  
estimate that at full NDIS capacity there will be 28,000 people with supported disability accommodation.

Now, I'm not asking you to comment on the accuracy of those figures ---

MS FAULKNER:  I agree.

MR POWER:  Okay.  And that's more than one in 20 NDIS participants, at 6 per cent, who would be expected to have supported disability accommodation of some sort?

MS FAULKNER:  Yes.

MR POWER:  That's correct?

MS FAULKNER:  Yes.

MR POWER:  So it certainly would not be correct to say that the NDIA is not responsible for accommodation?

MS FAULKNER:  Correct.

MR POWER:  Yes.  And where it's required, that is a core part of NDIA's function to provide specialist supported disability accommodation.

MS FAULKNER:  Correct.

MR POWER:  All right.  Now, when you were in that meeting, it was clear to you that Melanie was precisely the sort of case example that robust high level SDA funding would be required for?

MS FAULKNER:  I would agree.

MR POWER:  All right.  Now, this meeting, of course, was on 18 May 2018.   Now, at the same time in the course of the meeting it was recognised that Melanie, who had been in custody in one form or another, for a very long time, required transitional support.  Now, you spoke about this, and this is on     this is the document that I was referring to earlier, which is the 18 May 2018 meeting, and it’s following the page which isCTD.8000.0002.6549.  Now, in the middle paragraph     sorry, it's the third paragraph from the bottom, it says:

Christine Faulkner identified that the behaviour modification could be funded for Melanie while she is an involuntary patient and agreed to update the team on limitations associated with what can be funded for involuntary patients.

Now, do you agree, I know this is a long time ago, but do you agree that that's what you said?
 

MS FAULKNER:  I don't recall, as you said.But it's on the documentation there which I would support.

MR POWER:  All right.  Now, does the fact that four staff, most of whom were quite high level, had come to this sort of meeting and not been able to give the sort of concrete example based guidance of what would be funded, illustrate that these systems were difficult to apply?

MS FAULKNER:  For me, I guess for us to make a decision we need the functional assessments which we didn't have to make a decision on.

MR POWER:  Okay.  But what it says is you or perhaps your team     sorry, you, it seems, would update the team, and it's not clear whether that's a reference to your team or the team at the Forensic Hospital, but update the team on limitations associated with what can be funded for involuntary patients.  What limitations were you referring to there?

MS FAULKNER:  I would assume that the limitations would be the day to day care of Melanie and treatment.  She was in a mental health facility, so treatment would be the responsibility of that facility.

MR POWER:  All right.  Why didn't you say that then?

MS FAULKNER:  I don't recall.

MR POWER:  Okay.  So provided something was not day to day care and was not treatment, are you saying that the NDIA would fund that if it was aimed at transitioning a patient?

MS FAULKNER:  No.  Day to day care whilstin a facility, either justice or mental health facility, is the responsibility of that facility.

MR POWER:  Yes.  But if it's aimed at transitioning the person who has been in long term custodial care, if it's aimed at transitioning them out of that, then that's an NDIS responsibility, isn't it?

MS FAULKNER:  The transition would be about the behaviour support plan by an expert to enable the staff that are looking after her to understand what the triggers are and how to manage those behaviours. But it wouldn't be about funding day to day funding which is clear in the APTOS.

MR POWER:  Well, I'm trying to understand this.  So are you saying that under no circumstances would there be funding for people to work with Melanie to develop her skills so that she was in a position to be released from long term custodial care?

MS FAULKNER:  The transition, we would fund once there was a discharge date or  
discussion about a discharge and support team that could come and make themselves familiar with Melanie.  Over time we would fund, we would fund the behaviour support plan to enable the staff in those facilities, looking after her, to know again, as I said before, what the triggers are and how, the strategies to manage those.  We would fund assistive technology if required, but the day to day personal care, treatment, coming out of security, those things are accountable under the APTOS.  As I said, they are also responsible for that transition.

CHAIR:  Ms Faulkner, you've agreed, I think, that the minutes correctly record that you had said that the NDIA is responsible for funding services and supports rather than accommodation.  Can you think of why you would have said such is a thing?

MS FAULKNER:  I think I probably said, accommodation in the context of a containment type facility, as opposed to accommodation that would be her home full term.

CHAIR:  That was the point of the meeting to get her to the point where she would have long term accommodation, wasn't it?

MS FAULKNER:  Again, I can't recall the meeting itself.  But if the documentation says that, I agree to that.

CHAIR:  And can you remember or explain why the update was to be on the limitations associated with what could be funded rather than on what could be funded to enable Melanie to transition from the inappropriate environment in which she was housed to something more suitable?  It seems to be framed in a very negative way.

MS FAULKNER:  It does seem to be framed in a negative way, I agree.

CHAIR:  Was that because the concern was to save money?

MS FAULKNER:  No.

CHAIR:  What was it then?

MS FAULKNER:  The concern would be about making sure there was a package of support that would be a number of parties providing, as opposed to NDIA providing all the support.

CHAIR:  Is that another way of saving money?

MS FAULKNER:  No.

CHAIR:  Sounds like it, though, doesn't it?

MS FAULKNER:  I disagree.

 
MR POWER:  Ms Faulkner, another way of reading that, was that you and the other support staff members were not in fact truly sure what limitations there were on any NDIA funding associated with the status of an involuntary patient.  Is that what the situation was?

MS FAULKNER:  No.  I mean, again, I don't recall the meeting itself, but I would assume that if that was the first meeting, it was the first meeting to start to explore what Melanie's options were.

MR POWER:  All right.  Now, the situation was that, as at that date, that's 18 May, the NDIS team left that meeting and point 4 of the actions was that the NDIA was to provide an update on limitations on NDIA funding associated with the status as an involuntary patient.

Now, that, as it's phrased anyway, is not restricted to Melanie, it's more general than that.  But we've gone over that.So I just wanted to ask you, have you had a chance to review the emails and internal correspondence between yourself and other colleagues after this meeting?

MS FAULKNER:  I have read them but I can't recall them specifically.

MR POWER:  Okay.  Well, if I can take you to an email chain, that is tab 33, Commissioners, in bundle E which is CTD.8000.0002.0025.  That  document has the names obscured but the lead email is from the person who was also at the meeting on 18 May, and he was the Regional Manager of the NDIA.  Now, that document, if you go down, it states under point 2 that:

NDIA will not fund the continuation of SAL Consultancy service as this is part of day to day clinical supports that should be met in her present environment.

Can you read that sentence?

MS FAULKNER:  I can read that.  Yes, I can.

MR POWER:  Now this isn't, I accept, an email from you but it is     did that reflect your view that NDIA would not fund SAL Consultancy services?

MS FAULKNER:  That's not my recollection.

MR POWER:  Because    

CHAIR:  Sorry, do we know who this email was sent to?  It appears to be ---

MR POWER:  I apologise.  Thank you, Chair.

It was sent from the second highest person from the NDIA at the meeting to the next person down, whose title was Assistant Director Service Delivery, and another  
person as well.

CHAIR:  Item 1 on the document, I don't know whether you propose to come to that, but it records that NDIA is to provide an update on limitations on NDIA funding associated with the status asinvoluntary patient.

And tThen the conclusion seems to be that, since Melanie is under an order by the tribunal to be detained as an involuntary patient at Long Bay, her support needs should be covered by Long Bay Hospital.  So I suppose, is that the advice that was provided consequent upon the meeting of 18 May 2018?  I don't know whether Ms Faulkner can help us with that.

MS FAULKNER:  I can't help you there.  Apologies, no.

MR POWER:  Well, I was going to ask you about that.  You would disagree with that, of course, because it's not the case that:

..... her support needs should be covered by the Long Bay Hospital .....

Simply because she is an involuntary patient.  That's not a correct statement, is it?

MS FAULKNER:  So a person who has a disability, has an NDIA plan and is in a facility, either a mental health facility or justice setting, her day to day needs are to be taken care of by those settings.  We will fund the behaviour support plans, and other things like OT if required for a functional assessment.

MR POWER:  All right.  Well, the meeting from which these questions arose was not about maintaining Melanie in a secure mental health facility for the indefinite future. It was seeking the NDIS' assistance to get her out of there.  So in terms of that answer to point 1, that isn't a correct statement, is it?

MS FAULKNER:  If we were speaking specifically about exiting Melanie into community, we would need a functional assessment to make a decision about the funding support.

MR POWER:  Okay.  And if you were writing this email you might have said that, but that's not what it says, is it?

MS FAULKNER:  It has a negative connotation as was raised before, but the principle is as I said, we can fund on a functional assessment in a transition arrangement into community.

CHAIR:  If the second most senior person in the relevant section was the person who drafted this memorandum, you would think that     I'm not sure whether it was a he or she, but I would think that person might have said --- if the meaning was day to day support, might have said day to day support, but that's not what it says, is it?
 

MS FAULKNER:  No.

MR ARNOTT:  Out of fairness to Ms Faulkner, can she be shown the balance of the email?

CHAIR:  Certainly.

MR POWER:  So the balance of the email is the second page    

MR ARNOTT:  I meant points 2 and 3 underneath.

MR POWER:  All right.

MR ARNOTT:  But I think the operator had blown up just point 1.

MR POWER:  All right.

Ms Faulkner, you can see there that the Agency will provide funds to develop a transition plan.  The NDIA may also consider funding some limited skill development/day program activities.

Now     and that the NDIA would not fund the continuation of SAL Consultancy services.  Now, were you consulted about those limitations?

MS FAULKNER:  No, I was not.

MR POWER:  All right.  Now, if we can go back to the top of the email, we can see that the gentleman who sent the email has said:

Some suggestions below ..... mine are in blue.
[Another participant] any other comments?

It seems there was a real uncertainty about what would be funded for a high needs person such as Melanie.  Would you agree with that?

MS FAULKNER:  No, I don't agree because there was no set discharge date for Melanie.  So supports would increase closer to her discharge dates to enable her to transition into community.

MR POWER:  But the transition supports, of course, are designed to put her in a position where she can be released into the community.  Why would it be the case that it was only when there was a set release date that those supports would be given to a person in Melanie's position?

MS FAULKNER:  Well, the supports that we would have put in then, and should have put in then, and I think we did put in then, would have been the behaviour  
support plan, as I said, to help with those behaviours.  It would have been OTs and et cetera if she needed those, and assistive technology if required.  Again, there is not much more that can be done until there's a date for some staff to become familiar with her, as she is getting closer to a discharge, and to where she would ultimately reside.

MR POWER:  Sorry, why would that be the case?  Why would it be the case that she would not receive the supports to assist her to develop the skills to transition into the community until there was a date set?  Why would that be the case?

MS FAULKNER:  Because at the time Melanie was in a lockdown, as I understand, seclusion, 23 hours out of 24, where we would expect the facility would be able to, as required under their guidelines, to support her to transition into the normal environment which she was residing in.

MR POWER:  Well, are you saying that there are some cases that are too difficult for the NDIS?

MS FAULKNER:  No, I'm not saying that at all.  I'm saying that while somebody is in those facilities, there is only so much the NDIA can do within those facilities.

MR POWER:  But what we're talking about here is the NDIA obligations to those who are involuntarily detained.  Now, if somebody is detained in the most restrictive way, step one to having them released is to give them supports to move towards their release into the community.  Would you agree with that?

MS FAULKNER:  Agree.

MR POWER:  All right.  And therefore the NDIA had an obligation to Melanie to start providing those supports from that point in time?

MS FAULKNER:  I think the agency had an obligation to fund supports when we knew what her potential was after treatment in that facility.  She was in a mental health facility under long term seclusion and isolation requiring treatment.

MR POWER:  This is a person who has a cognitive disability, not a mental health disability.  What treatment are you suggesting the hospital should have provided that was not also related to preparing Melanie for release into the community?

MS FAULKNER:  Enacting the behaviour support plan, and developing and using strategies, to be able to move outside of an isolation unit.

MR POWER:  Why isn't that a transition towards getting her into the community?  Why is that not step one in that process?

MS FAULKNER:  The behaviour support plan was, I understand, funded.

 
MR POWER:  All right.  When was that funded?

MS FAULKNER:  I think on her first or second plan.  I can't recall specifically.

MR POWER:  And when was her first plan?

MS FAULKNER:  Her first plan, I think, was when she became eligible for the scheme, as what was called being a defined participant.

MR POWER:  How long after May 2018 was that?

MS FAULKNER:  As I recall, a defined participant, she would have been around     I think around 2017, if I recall correctly.  Knowing of course this is the time that New South Wales was rolling into the scheme which completed mid 2018.

MR POWER:  All right.  Well, let's go to a meeting on 6 July 2018 and that is tab 37 of Tender Bundle E.  And this is the minutes of another meeting at the Forensic Hospital.  Now, it is CDT.8000.0002.6550.   Now, this is a meeting at which the the person to whom that email previously was sent, and I'll use his title.  It was the Regional Manager and yourself, where it was intended you would be present by phone but at the time neither of you could be contacted.  So the third person down, who was the Assistant Director     sorry Assistant Director Service Delivery was the highest ranked NDIA participant and another NDIA participant was there.

Now, if we can go to the second page, which is page 6551, you will see in about the middle of the page     it's the fifth paragraph down, it said that     this is the highest participant from the NDIA, which is the Assistant Director Service Delivery said that no decisions could be made around Melanie's NDIS planning without the other person second down from you, and yourself, being present.  Representatives from the NDIA said they had conducted an internal meeting on 5 July to review documentation provided by SAL Consulting and the Forensic Hospital and discuss next steps.

However, unable to provide further information in the absence of second ranked person and yourself.

It then goes to say that the hospital asked     the treating team asked whether any further documentation was required, and the answer was that the NDIA was unable to respond to this inquiry.

Now, this is almost two months later and nothing had happened.

CHAIR:  Two months later than what?

MR POWER:  Sorry.  This is two months after     almost two months after 18 May 2018.  Because this was on 6 July 2018.  Anyway, July 2018.  Why was it that no answers could be given of any sort in this meeting?
 

MS FAULKNER:  Not having been at that meeting, I don't know.

MR POWER:  Well, was it satisfactory that when asked whether any documentation was required, given that documents had been provided by SAL Consulting and the New South Wales State Forensic Hospital that the response was not only     was that NDIA were unable to say whether her material was sufficient or not?  Was that satisfactory?

MS FAULKNER:  It's not ideal but I don't understand     I mean, I don't recall the circumstances at the time or being discussed with.

MR POWER:  Right.  Well, this was a meeting that according to the minutes it says the gentleman, Regional Manager, NDIA, and Christine Faulkner, General Manager, NDIA:

..... had agreed to attend the meeting via telephone however had not logged on to the teleconference.  No answer to phone calls was received, voicemail message were left with both parties requesting attendance.

I know you would have a very busy role but it suggests, doesn't it, that given it was intended you be present at this meeting, there would have been some sort of briefing about this?

MS FAULKNER:  It's not my normal practice to not respond to calls so I don't recall this specifically, and agree that it would have been ideal if one of us had been present.

MR POWER:  Right.  In terms of the next steps that were present at the last meeting, one of them was to tell the Forensic Hospital what limitations existed on supports to be given to involuntary patients.  From what you've told us, that should have presented no difficulty whatsoever to the third ranked person, at least, from the NDIA to do.  Would you agree with that?

MS FAULKNER:  I don't know.  I would have to confess not knowing what those documents were ---

MR POWER:  No, sorry, Ms Faulkner, I'm not asking you that.  You remember that the action on 18 May 2018 was that the NDIA was to give information about the limitations on support to be given to involuntary patients.  You remember that?

MS FAULKNER:  Yes.

MR POWER:  Right.  Can I take you to the next page of CTD.8000.0002.6552.  If you can look at the first action that arises out of this meeting almost two months later:

 
NDIA to provide update on limitations on NDIA funding associated with status as an involuntary patient.

So that question which, would you agree, should have been a simple question to answer, wasn't able to be answered by two NDIA participants at this meeting?

MS FAULKNER:  Agreed.

MR POWER:  All right.  Does that suggest that at least at 2018, it was very hard for inexperienced people within the NDIA to know what the NDIA should provide in an involuntary setting?

MS FAULKNER:  I think as I said, at the beginning of this in 2018, probably more difficult than it was later on.

MR POWER:  Okay.

CHAIR:  By 2018 the document     what's the name of the document?  There are so many acronyms, one can get lost in all of this.  The APTOS document.  The APTOS document as at     I assume as at 2015, because the document, the copy I have is dated 27 November 2015, stated that for people who were subject to custodial     in custodial settings:

..... the only supports funded by the NDIS are those required due to the impact of the person's impairment on their functional capacity and additional to reasonable adjustment, and are limited to aids and equipment, allied health and other therapy directly related to a person's disability, including for people with disability who have complex challenging behaviours, disability specific capacity and skills building support, which relates to a person's ability to live in the community post release.  Supports to enable people to successfully re enter and training for staff in custodial settings where this relates to an individual participant's needs.

Why was SAL Consulting services regarded as inappropriate for continuing funding?  Were they not providing services that came within that limited but very reasonably clear description?

MS FAULKNER:  I can't answer that, Chair.  I don't know why the decision was made not to fund SAL Consulting any further.  Noting that SAL Consulting are funded now and continue to work with Melanie.

CHAIR:  They do now, that's so.  It would be odd if the services provided by SAL Consulting at that time didn't come within the description in the APTOS document, one might have thought.  Yes.

MR POWER:  And so, Ms Faulkner, if I can take you to the third meeting at the Forensic Hospital.  This one is on 7 August 2018 and, Commissioners, this is at tab 47 an 
d it's CDT.8000.0002.6553 is the first page.  Now, there were two people from the NDIA present and the most senior of which was Assistant Director Service Delivery, and that gentleman had been present at all three meetings, and then an NDIS planner was also present.

Now, I will come back to some things but I might just cut to the chase.  We go to the third page, 6555 and the first of the actions:

NDIA to provide update on limitations on NDIA funding associated with status as an involuntary patient.

Is there any reason why now, nearly three months after the first meeting there couldn't have been clear guidance given about what funding the NDIA could give, not would give but could give to an involuntary patient?

MS FAULKNER:  I would agree.

MR POWER:  All right.  And if we go back a page to point 6554.  Now, in the second and third paragraphs under the heading 'Minutes', it states there:

The NDIA confirmed that they have received comprehensive documentation from the treating team and that they do not require any further documentation to proceed with formulating a plan for Melanie.

Then it goes on:

The NDIA raised the concern that they may not be able to fund certain supports whilst Melanie remains under the care of the Forensic Hospital as it is the responsibility of the Justice Health and Forensic Mental Health Network ..... to make the reasonable and necessary adjustments.

Now, the reasonable and necessary adjustments are about day to day living in a Forensic Hospital, aren't they?

MS FAULKNER:  Part of, yes.

MR POWER:  Well, the obligation to assist a person with a disability to develop the capacity to leave that institution is the responsibility of the NDIA, is it not?

MS FAULKNER:  Not totally, no.  It is also part of the facility to help them learn life skills as is afforded to all patients and justice participants to have that support from those facilities to do so.

MR POWER:  Well, let's break this down.  If we are talking of a prison environment and you've got an armed robber, he or she is not going to need the same degree of assistance in developing life skills upon leaving jail.  They purely need assistance with dealing with their criminogenic needs.  You agree with that?
 

MS FAULKNER:  It's possible, yes.

MR POWER:  Well, if they don't have a disability?

MS FAULKNER:  If they don't have a disability, yes.

MR POWER:  A person who has a cognitive impairment, who has exhibited complex behaviours and is being held in a mental health facility or a Forensic Hospital or a disability     a closed disability unit because of their behaviour, you would need to look at is it their disability that has resulted in these complex behaviours that make them a risk to themselves and others, wouldn't you?

MS FAULKNER:  In some cases, yes.

MR POWER:  All right.  And let's reduce it to the "some cases" that you are discussing.  Developing the skills that allow them to live safely in the community, that's transition, isn't it?

MS FAULKNER:  Transition is when we know someone is going to be moving back into the community and in that facility, mental health facility with significant mental     disability and mental health needs in an environment that has the therapeutic and treating staff there would also be expected to teach life skills as per the behaviour support plan that would have been provided.

CHAIR:  If we take Melanie, and I take it you're familiar with Melanie's extraordinary complex needs and requirements, would it not be manifest that Melanie required assistance for disability specific capacity and skill building supports relating to her ability to live in the community post release?  If ever there was a case that answered that description, which I'm taking from APTOS     I'm not very good at acronyms     this is precisely the case that APTOS is talking about, isn't it?

MS FAULKNER:  It is part of that, yes, but noting Melanie of course had a long history of incarceration and isolation in an environment that had therapy to help her to resolve and work towards her life skills alongside the NDIA.

CHAIR:  So the NDIA, your view was and remains that the NDIA was not responsible for developing Melanie's disability specific capacity and skills to enable her to live in the community post release notwithstanding the extent of her disability and her complex needs?  Is that the proposition you're putting?

MS FAULKNER:  No, the proposition is we would fund and support her in her transition into community, which was not possible to do whilst Melanie was still in a 23 out of 24 hour lockdown to do so.

CHAIR:  But what is said in APTOS is not limited to the period that somebody is  
actually scheduled for release, is it?

MS FAULKNER:  A transition implies a release.

CHAIR:  I've read you the relevant     I don't know if we can bring it up, but part of the problem is with so many documents, can you bring up the relevant page which is CTD.8000.0004.0254?  Can we bring that up, please.

MR POWER:  I think it's being brought up.  I will repeat the number CDT.8000.0004.0254 and it's the left hand side of the column which are the obligations on the NDIS.

CHAIR:  There we go.  If you read the left hand column of the document, that's not limited, is it, to a period when somebody has been    

MS FAULKNER:  No, correct.

CHAIR:      stated or designated for release by a specific date?  It's general, isn't it?

MS FAULKNER:  Correct.

CHAIR:  Well, can you explain to me how anybody interpreting this document could have come to the conclusion that anything required by Melanie during her period of incarceration at this time, 2018, could not come within that description?  How is that possible?

MS FAULKNER:  I would agree those supports should be aligned with what the justice or mental health facility was providing.

CHAIR:  I don't understand the answer, I'm sorry.

MS FAULKNER:  So again, any equipment that Melanie required certain use, allied health and other therapy.  If there was speechy or OT, yes, that would be funded, and disability specific capacity and skills, life skills alongside what the mental health facility would be providing, and supports to enable people to successfully re enter the community.

CHAIR:  We don't have evidence of it, but I assume it could be obtained because we have a statement from Dr Maxwell.  But one might have thought that's exactly what SAL consultancy was providing.

MS FAULKNER:  I have to assume they were providing that but again I don't recall not funding them any further.

CHAIR:  Well, except that the document following the meeting of 6 July, the document dated 16 July, the email that you were taken to earlier, the reference to which is CTD.8000.0002.0025 says this:
 

NDIA will not fund the continuation of SAL consultancy service as this is part of day to day supports that should be met in her present environment.

MS FAULKNER:  I accept that statement, yes.

CHAIR:  I don't think anybody is suggesting that people weren't trying to do their best to interpret difficult principles, but it's a little difficult to understand how at this stage it was proving so difficult to get approval for those kinds of supports that one might have thought were entirely appropriate and necessary for Melanie's situation.  I'm finding it a bit difficult to understand the decision making process.

Anyway, if there's nothing further you can help us with on that, there is one other question.

The second meeting, there was a clear indication that nothing much could happen unless you were involved because you were the decision maker.  But you weren't at the third meeting.  Why was that?

MS FAULKNER:  Well, I don't recall why a decision couldn't be made without me at the table so therefore I wasn't aware of the requirement at the next meeting is all I can say.

CHAIR:  But somebody thought they couldn't make a decision without reference to you, didn't they?

MS FAULKNER:  They did.

CHAIR:  Okay.

COMMISSIONER McEWIN:  Could I ask a follow up question to that line of discussion, Ms Faulkner, if the NDIA had determined that you would not fund a particular support that you believed should be provided by the State Mental Health Service, what would that look like?  For example, can I suggest that that Mental Health Service should have specialist disability expertise built within it or what are you imagining or could you give me your opinion on this?

MS FAULKNER:  I think that was the assumption I was saying before, that she was in a facility that should have a number of therapists and clinical people there to support Melanie in developing those skills.

COMMISSIONER McEWIN:  All right.  Thank you.

MR POWER:  Ms Faulkner, I think you agreed with the Chair's proposition that SAL Consulting was something that the NDIS should fund, that was the end point of that?

MS FAULKNER:  Well, on face value that was provided there, I would say yes.
 

MR POWER:  All right.  If I can take you to     this is tab 52 which is an email from yourself on Monday, 20 August 2018 and it's CTD.8000.0002.5900.  I think that will come up.  It's an email from you to people who are within the NDIS and this is the second of an email chain but it says:

This goes back to treatment vs support.  If they consider SAL Consulting as the appropriate treatment required then its state responsibility, especially whilst in state care.  I think we need to talk about a meeting to continue work through outside the tribunal setting?

So why was it that you said there that the NDIS shouldn't fund?

MS FAULKNER:  It was presented to me as treatment, I would say that it would be     it's the State's responsibility for treatment or that facility for treatment.

MR POWER:  Sorry, go on.

MS FAULKNER:  No.  Sorry.

MR POWER:  But if I can take you then down to the earlier email from you that was some 14 minutes earlier, it reads:

Thanks, [redacted].

There is a section blacked out.  Then it says:

Again, whilst on an involuntary treatment order it is a state responsibility if they want to put her into the community on a supervision orders it's still the state responsibility.

Chris.

Now, that doesn't reflect the APTOS principles, does it?

MS FAULKNER:  If somebody is in community on orders then it's the State's responsibility.

MR POWER:  I don't want to go back to APTOS but the section of APTOS that the Chair raised with you, you agreed that those dot points are on that page were NDIS responsibilities?

MS FAULKNER:  Correct.

MR POWER:  Right.  Now, this email, I want to take you to a letter from the NDIS from the Mental Health Review Tribunal and it is ---

 
CHAIR:  Mr Power, just before you do that.  I see the time.  Could you     and I appreciate that I have interrupted on a number of occasions, but how long are you likely to be and are we going to be able to finish this afternoon or do we need to come back tomorrow?

MR POWER:  No, Chair.  I am aware of the time and I will aim to finish by no later than 4:25, which would allow Commissioners to have questions so that we can finish at 4:30.

MR ARNOTT:  I will also have some questions for Ms Faulkner in re examination.

MR POWER:  I will try to finish at 4:20.  I will abbreviate some of the questions.

Perhaps I won't take you to this, but I will read the reference so that it's known.  But the New South Wales Mental Health Review Tribunal sent a letter to the second person below you at the first meeting on 5 July 2018 which Commissioners is tab 35 at bundle E, CTD.8000.0002.0023.

Now, it's up on screen, but the effect of that letter is the Mental Health Tribunal itself writing to the National Disability Insurance Agency saying that their role of assessing risk in the community requires them to have an understanding of what package, what support would be present in the community.  So when you refer in your email to "If they want to put her in the community on supervision orders, it's the State's responsibility", is this the letter that you are referring to?

MS FAULKNER:  I can't recall that, apologies.  I don't recall.

MR POWER:  In your email you are clearly referring to a prospect that she would be released under a State supervision order such as the Mental Health Review Tribunal making an order.

MS FAULKNER:  Yes.

MR POWER:  This letter where the Mental Health Tribunal were asking for the NDIS to indicate what support would be present in the community, was that brought to your attention?

MS FAULKNER:  Not that I recall.

MR POWER:  Okay.  For something like the Mental Health Review Tribunal to have written directly to the NDIS would indicate, would it not, that there was a real need for robust support in a number of different forms to be present that had to come from the NDIS?  Would you agree with that?

MS FAULKNER:  I would agree with the fact that if she needed a robust accommodation and had been found eligible for SDA, the agency would fund that.

 
MR POWER:  Okay.  All right, we've got there.  That was 5 July 2018 and we had the email from August 2018.  I want to move forward two years to 2020.  As at December 2020, the evidence of Megan Osborne to this Commission was that a preferred supplier of specialist disability accommodation could not be engaged until the NGO's plan review had been completed, and that engagement was dependent upon the level of funding provided by the NDIS.

Is that your understanding of what the situation was at December of 2020?

MS FAULKNER:  I recall those discussions in those governance group meetings, yes.

MR POWER:  Okay.  So it's nearly two and a half years since May 2018, as at December 2020, and the NDIA had not yet provided the level of SDA funding that would allow Melanie to be released into the community.  That's correct, isn't it?

MS FAULKNER:  Can I clarify if you are talking about SDA funding or SIL funding?

MR POWER:  No, SDA funding, 2020.

MS FAULKNER:  SDA funding is not a decision that I made, or the level of SDA funding.

MR POWER:  I apologise, I wasn't asking you personally.  My understanding was that you were back in contact with Melanie's case, perhaps not as the decision maker, but back in contact with Melanie's case in 2020.

MS FAULKNER:  Correct.

MR POWER:  All right.  Now, so is it correct     I'm obviously not talking about you personally, as at December 2020 the NDIA had still not yet committed to the level of SDA funding it would provide for Melanie?

MS FAULKNER:  As I recall she was found eligible for SDA in 2019 at a robust level.  That is against the rules, there was a price on that which was available to Melanie.

MR POWER:  The material we have shows that in 11 June 2021, an MOU, a Memorandum of Understanding, was made between the Commonwealth and New South Wales, and that it was at that point that SDA funding at a robust level was finally confirmed.  Are you saying that it had been confirmed unconditionally prior to that point?

MS FAULKNER:  My recollection was she was found eligible in 2019 for SDA, robust.

 
MR POWER:  Okay.

CHAIR:  I think the easiest way of dealing with this may be that if Ms Faulkner's recollection is correct, no doubt there will be some documentation and I would think that the simplest way of dealing with this is to ascertain what documentation there is and for Mr Arnott to provide it to the Royal Commission rather than test memory.

MR POWER:  Yes.

CHAIR:  Because that will take some time.

MR POWER:  Moving into my final three questions, Chair.

You left in March of 2021.  Up until that time, had the SIL or Supported Independent Living funding been confirmed?

MS FAULKNER:  No, I don't believe it had.  Well, it hadn't been confirmed up until when I had left in March 2021 because to make a decision on funding, you have to consider all supports, both formal and informal supports, of which we had no documentation to the effect at that time.

MR POWER:  Right.  Now, other questions will be asked about this tomorrow, but it's our understanding that Melanie's case was the only one where there was an MOU that involved negotiations between DSS, NDIS and a State or Territory.  Is that correct to your understanding?

MS FAULKNER:  That's correct to my understanding.

MR POWER:  Why was it that Melanie's case required a memorandum of understanding between the NDIS and the State Government?

MS FAULKNER:  I don't understand why.  That was not a decision I made, so I'm not sure why that MOU    

MR POWER:  Thank you.  My final question is this.

Have you had an opportunity toread Megan Osborne's statement and the annexure to it which provides a selection of four case studies known to the Public Guardian?

MS FAULKNER:  I have, but I can't recall all those case studies, apologies.

MR POWER:  No.  That's okay.  In broad terms each of them is an extremely complex case.  In your experience, there are not an insignificant number of cases as complex as Melanie's, aren't there?

MS FAULKNER:  There would be a number of cases as complex as Melanie.  There would not be many.
 

MR POWER:  Well, across Australia we would be talking in the     more than a hundred, wouldn't we?

MS FAULKNER:  I don't know.  I don't know how to assess that, cost of plans or supports that would be in somebody's plans, so no, I would not know the number.

MR POWER:  Thank you.  That's all of the questions.

CHAIR:  All right.  Thank you very much.  I will ask, I think, first whether Commissioner Mason has any questions.

COMMISSIONER MASON:  No thanks, Chair.

CHAIR:  Thank you.  Commissioner McEwin?

QUESTIONS BY THE COMMISSION

COMMISSIONER McEWIN:  Thank you, just one quick question which was a follow up to the questions I asked earlier, Ms Faulkner, where you talked about the things that the NDIS will fund and the things that they won't fund.  Can I put it to you that or my question is, what would Melanie have gotten before the NDIS compared to now that the NDIS?  So what would that have looked like?

MS FAULKNER:  Before the NDIS I would assume that the support she is currently     the supports that she was living in would be the level of support she would have.

COMMISSIONER McEWIN:  Okay.  Thank you.

CHAIR:  Thank you.

Mr Arnott, I think you wanted to ask some questions of Ms Faulkner.

RE EXAMINATION BY MR ARNOTT

MR ARNOTT:  Thank you, Chair.

Ms Faulkner, can I ask you some questions about the Justice System Guidelines which you were asked about at the beginning of the examination, and if that could be brought on the screen, please, they are CTD.8000.0013.1110.

Ms Faulkner, do you remember being asked questions about that by Mr Power?
 

MS FAULKNER:  Yes, I do.

MR ARNOTT:  Can I ask, were you involved in the preparation of these guidelines?

MS FAULKNER:  No, I was not.

MR ARNOTT:  Can I ask the operator to go to page 1121 within the document.  Ms Faulkner, do you see there the example of Ian which was shown to you by Counsel Assisting?

MS FAULKNER:  Yes.

MR ARNOTT:  If we just go to the previous page, page 1120, can you see this example sits within the section "When will we do a plan review"?

MS FAULKNER:  I can't specifically see it at the moment, but when we would do a plan review ---

MR ARNOTT:  No, Ms Faulkner, can you see the example sits within that section?

MS FAULKNER:  Yes.

MR ARNOTT:  This is a small point, but it was put to you that this was the only example in this document.  Before I come to that point, perhaps now they are both on the screen, can you see now, Ms Faulkner, that this is an example that is given in the context of the guidelines as an example of when the NDIS will do a plan review?

MS FAULKNER:  Yes.

MR ARNOTT:  And you will see that the example given is of a person who has been given a five year sentence with a three year non parole period.  Do you see that?

MS FAULKNER:  Yes, I do.

MR ARNOTT:  It describes, in the circumstances of that person, the NDIS would do a plan review?

MS FAULKNER:  Yes.

MR ARNOTT:  Is it necessary, do you think, to identify in the example the nature of Ian's disability in order to identify when the NDIS would do a plan review in this context?

MS FAULKNER:  I don't believe you need to know the disability.

MR ARNOTT:  When would the NDIS do a plan review for someone who is in a  
custodial facility?

MS FAULKNER:  The goal now     I mean, understanding of 2018, that those plans weren't done in a timely manner, but now we would expect to plan at least 12 to 16 weeks prior to being discharged from their custodial arrangements would be the goal.

MR ARNOTT:  Thank you.  Now, as I said, it was put to you by my learned friend that there was only one example in this document.  If I could ask the operator to go to page 1116.  You should see there another example within the document.  Do you see there, Ms Faulkner, the example of Lee?

MS FAULKNER:  Okay.

MR ARNOTT:  This is an example of a person in a correction facility who needs a power wheelchair, do you see that?

MS FAULKNER:  Yes, I see that.

MR ARNOTT:  The occupational therapist has allowed a particular type of wheelchair but that is not allowed because Lee is in a correctional facility.  Do you see that?

MS FAULKNER:  Yes, I do.

MR ARNOTT:  If we zoom out of that example, please, and put pages 1115 and 1116 next to each other, I don't know if this will be too small for you to see, but this falls within part of the guidelines which says what NDIS supports you can get while in custody?

MS FAULKNER:  Yes.

MR ARNOTT:  The example of Lee is given to illustrate what NDIS supports can be given, and the example given at the bottom of the page, that the NDIS will fund reasonable and necessary supports in custody, when the supports you need aren't the justice system's responsibility to provide   

MS FAULKNER:  Correct.

MR ARNOTT:  --- and it's appropriate in the circumstances for the NDIS to provide the supports?

MS FAULKNER:  Yes.

MR ARNOTT:  And there are some examples of things that might be funded such as assistive technology, training for staff in custody and capacity building supports.  Do you see that?

 
MS FAULKNER:  Yes.

MR ARNOTT:  Melanie, under her current approved NDIS plan, has funding for capacity building supports, doesn't she?

MS FAULKNER:  She has, I understand, capacity building support, a behaviour support plan and support for transition in her last plan, I understand.

MR ARNOTT:  Thank you.  And if I could then take you back to page 1115 and if we could just blow up the list of things which starts:

This means when you are in custody the justice system should provide things like    

MS FAULKNER:  Correct.

MR ARNOTT:  And this is where in the guidelines it sets out the things that the justice system should provide for an NDIS participant who is in custody?

MS FAULKNER:  Correct.

MR ARNOTT:  And the second last bullet point there is secure mental health facilities that are mainly clinical in nature.  Do you see that?

MS FAULKNER:  Yes.

MR ARNOTT:  In a number of your answers to questions from counsel assisting and from the Chair, you referred to the fact that Melanie was in seclusion 23 hours of the day in 2018?

MS FAULKNER:  Yes.

MR ARNOTT:  At that time was she within a secure mental health facility of the type described in that bullet point?

MS FAULKNER:  I'm assuming so.  I can't recall specifically her arrangements but she was in     had been secure for a long time was my recollection.

MR ARNOTT:  Thank you, Chair.  I have no further questions for Ms Faulkner.

CHAIR:  Does any other representative wish to ask any questions of Ms Faulkner?

MS FURNESS:  I have no questions, thank you, Chair.

MS NEEDHAM:  I have no questions, thank you, Chair.

CHAIR:  Thank you very much, Ms Needham.
 

Thank you, Ms Faulkner, for coming to give evidence at the Royal Commission.

MS FAULKNER:  Thank you, Chair.

CHAIR:  We appreciate your assistance.

THE WITNESS WITHDREW

CHAIR:  Mr Power, I assume we now adjourn until 10 am tomorrow, is that correct?

MR POWER:  Yes.  Thank you, Chair.

CHAIR:  Do you wish to give any indication of what will happen tomorrow?  Perhaps Dr Mellifont might.

DR MELLIFONT:  I will be taking the witnesses tomorrow. We will start with Mr Michael Coutts Trotter who is the Secretary of New South Wales Department of Communities and Justice, followed by Ms Cecelia Gore, Senior Director, Mental Health, Alcohol and Other Drugs Branch, Health System Policy and Strategy of the Northern Territory Department of Health.

Commissioners will recall that both Mr Coutts Trotter and Ms Gore gave evidence in public hearing 11.  Their evidence tomorrow will do some follow up on some of the issues touched on then, but also I will ask each of those witnesses to comment on issues that various States and Territories have raised in the statements they've provided to this Commission about the operation of the NDIS and the justice interface.

The last few witnesses of the day will be Mr Scott McNaughton who gave evidence in public hearing 13 but not Public hearing 11.  He is the General Manager of the NDIA.  He will give evidence together in panel with Ms Catherine Rule who is the Deputy Secretary, Disability and Carers, Australian Government Department of Social Services, and you will have gathered from what I've said throughout the course of the day that a focus of their evidence will be about documents such as APTOS and justice operational guidelines and how things are working.

I finished that at 4:28, Chair.

CHAIR:  Before we finish, Mr Arnott, I should have mentioned, would you be good enough to take the question that was raised, that is to say, to investigate whether approval was in fact given for SDA funding in 2019?  I'm not suggesting for a moment it wasn't, but could we please check that and if there is documentation then perhaps you could provide that to the Royal Commission, if possible, tomorrow?  But if that's not feasible, then within a short period.  That can be done either by  
simply tendering the relevant documentation, but if you wish to put it in the form of a statement from someone, that's an alternative that certainly is available to you if you wish.

MR ARNOTT:  Thank you, Chair.  We'll take that on notice.

CHAIR:  Thank you.  We will now adjourn until 10 o'clock tomorrow morning.

ADJOURNED AT 4.29 PM UNTIL 10.00 AM ON FRIDAY, 13 AUGUST 2021