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Public hearing 19: Measures taken by employers and regulators to respond to the systemic barriers to open employment for people with disability, Virtual - Day 6

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CHAIR: Good morning, everybody. I begin by acknowledging the Gadigal people of the Eora Nation on whose traditional lands Commissioner Ryan and I are sitting today. I also acknowledge the Wurundjeri People of the Kulin Nation upon whose lands Commissioner Galbally is participating in this hearing. I pay our respects to their Elders past, present and emerging and I also pay our respects to all First Nations people who are participating in or following this hearing.

I want to say something about the floods that have been experienced in this country in recent days. On behalf of everybody associated with this Royal Commission, I express our sympathy and support for all people who have been so badly affected by the terrible floods in northern New South Wales and southern Queensland, to families who have lost loved ones, to people who have been injured or experienced trauma, to people whose homes and livelihoods have been lost or damaged. We express our admiration for the extraordinary efforts of local organisations and communities and volunteers in rescuing and safeguarding people, including, of course, the elderly and people with disability.

Since this Royal Commission started in April 2019, nearly three years ago, the country has experienced devastating bushfires and floods and, of course, a pandemic the likes of which have not been seen for over a century. People with disability are not the only ones who have suffered or experienced loss, trauma or hardship during these disasters, but they have been very much at the forefront. The Commissioner's reports we have produced on governmental responses to the COVID‑19 pandemic ‑ they are the Commissioner's reports on Public hearings 5 and 12 ‑ have significance for people with disability far beyond the particular circumstances of the pandemic. The latest disaster drives home the importance of governments implementing the recommendations we have put forward and taking the necessary measures to ensure that people with disability are protected and supported during times of great peril.

Let me say something about today's hearing. Today's hearing follows the five-day Public hearing 19, which was held from 22 to 26 November 2021. Public hearing 19 examined how public and private sector employers address the systemic barriers experienced by people with disability in seeking or retaining employment in the open market. The Commissioners participating in that hearing were Commissioner Rhonda Galbally AC, Commissioner John Ryan AM and myself as Chair. As I have indicated, Commissioner Galbally is participating in Melbourne, and Commissioner Ryan is here with me in the Sydney hearing room.

At the conclusion of the five‑day hearing, directions were made for Counsel Assisting the Royal Commission to file written submissions, and for all parties who had been given leave to appear at the hearing to have the opportunity to file written submissions in response. The directions stated that after receiving all written submissions and responses, the Royal Commission would hold a further short hearing today, 10 March 2022, for oral submissions.

Counsel Assisting filed extensive submissions on 7 February 2022. A number of parties have filed written responses, although some of those responses are brief. The responses have been received from the Australian Government, the State of New South Wales, Northern Territory, the State of Queensland, the Victorian Public Sector Commission, Kmart Australia Limited and Mr Peter Olivieri. The purpose of today's hearing is to hear the oral submissions from Counsel Assisting and from any of the parties given leave to appear who wish to elaborate on their written responses.

I understand that, from information provided, subject to correction, that five parties are represented today. Two of those, Lendlease and RMIT, have not filed written responses to Counsel Assisting submissions. The three that have filed responses ‑ the Australian Government, the State of Victoria and the State of New South Wales ‑ apparently do not wish to supplement their written responses, although I understand the Australian Government has reserved its position and we will hear from their Counsel later. However, Commissioners will have the opportunity to ask questions if they wish. I will take the appearances shortly.

Let me say something about the Royal Commission as an instrument of change. In my closing remarks on the fifth day of Public hearing 19 I said this:

"It is quite clear that the employers whose representatives gave evidence ‑ that is, public and private employers ‑ have committed themselves to ensuring that workplaces are accessible to people with disability, that people with disability receive the adjustments and supports to which they are entitled throughout the employment cycle, that workplaces should become more inclusive for people with disability, and that policy should be designed to increase labour force participation by people with disability and to provide such people with fair opportunities for advancement and promotion. It is equally clear ‑"

And I'm continuing to quote:

"It is equally clear from the the evidence that some employers are much further advanced in the project than others. To use the colloquial expression, which got a fair run during the hearing, some walk the walk as well as talk the talk, others may just talk the talk. "

That's the end of my quote. But I also in my closing remarks endorsed the observations of Ms Eastman SC, Senior Counsel Assisting the Royal Commission, that:

"There will be a opportunity for the Royal Commission to seek updates from employers to determine whether they are indeed walking the walk. This will be done at least in part by the Royal Commission holding what we shall describe as wrap up hearings in the early part of 2023, and some organisations that have given evidence at this public hearing may be asked to return and tell us about progress in the intervening period. "

This Royal Commission is operating on the basis that we can bring about changes in laws, practices and programs that affect people with disability in a variety of ways. Recommendations in a final report are, of course, an extremely important mechanism, but it is not the only one. Sometimes change can be stimulated simply by exposing wrongdoing or injustices such as violence perpetrated against, and abuse, neglect and exploitation of people with disability about which we have heard so much evidence during the life of this Royal Commission.

Change can also occur when influential and powerful actors such as large private and public sector employers decide to accept responsibility themselves to address the practices and attitudes that have caused so much hardship in the past to people with disability. The evidence of Public hearing 19 demonstrated that some large and influential employers have accepted that responsibility and have taken active measures to discharge it. But that's not the position of all employers. Our Terms of Reference require us to consider what should be done to promote a more inclusive society that supports the independence of people with disability and their right to live free from violence, abuse, neglect and exploitation.

That requires the entire community to be involved and, in the present context, it requires all major private and public employers to play their part by taking the lead and not awaiting requests by the Royal Commission for further information before taking action. I shall now take appearances.

MS EASTMAN: Good morning, Commissioners. I’ll just check

 I'm not on screen. Thank you. Commissioners, I appear with Ms Elizabeth Bennett SC for the Royal Commission.

CHAIR: Thank you, Ms Eastman. I will now take other appearances, starting, I think, with the Commonwealth.

MR HODGE: Commissioner, my name is Hodge, initial M. I appear on behalf of the Commonwealth instructed by Gilbert + Tobin.

CHAIR: Thank you very much, Mr Hodge. The State of Victoria?

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

CHAIR: Thank you, Ms Bedford. And the State of New South Wales.

MS FURNESS:  Thank you, Commissioner. My name is Gail Furness, and I appear with Trent Glover for the State of New South Wales instructed by the Crown Solicitors office.

CHAIR: Thank you, Ms Furness. Are there any other appearances? I think not, but I'm checking just in case. No. In that case, yes, Ms Eastman. Oh, there is, sorry.

MS THEW: May it please the Commission, Thew of Counsel for Lendlease, instructed by Miles Bastick of Herbert Smith Freehills.

CHAIR: Yes, thank you, Ms Thew. There may be an appearance for the ‑ RMIT, I understand. Is that the position? Yes.

MR CARR: Yes. May it please the Commission, my name is Carr. I appear for RMIT University.

CHAIR:  Yes, thank you, Mr Carr. Does that exhaust the appearances? I think so. Yes, Ms Eastman.

MS EASTMAN: Yes. Thank you. Commissioners, we also acknowledge and pay our respects to the traditional custodians on the lands on which we are meeting across the country today. We pay our respects to First Nations Elders past, present and emerging, as well as to all First Nations people following this public hearing. Commissioners, today is an opportunity for the Royal Commission to hear oral submissions following Public hearing 19, which, Chair, as you have mentioned, was conducted between 22 and 26 November 2021. There will be no witnesses appearing at the hearing today.

The purpose of today's hearing is to draw together the evidence that you heard in November last year to provide a summary of the evidence, and, to that end, we have prepared detailed Counsel Assisting submissions which are now on the Royal Commission's website. We will speak to these submissions. We will also have the opportunity to examine the responses from those who have participated in the public hearing and provided a response. In the examination of those responses, we will touch on key themes that emerge during the hearing and then, finally, we will identify the next steps.

In terms of how we will organise the day, together with Ms Bennett, we will make our submissions. We may break for morning tea at some stage during our submissions or, if we make good progress, on the completion of our submissions. Then, Commissioners, there's the opportunity for you to hear from the parties who are appearing today. Some of them may wish to make some additional oral submissions, and we understand, Commissioners, that they are all available if any of the Commissioners have any questions in relation to their submissions.

May I start by making some introductory comments. Public hearing 19 cannot be separated from the work that the Royal Commission did in Public hearing 9. Public hearing 9 was led by people with disability who shared their experiences and talked about the barriers and pathways to open employment. The evidence at Public hearing 9 raised recurring and common barriers to the employment for people with disability. At Public hearing 9, we did not seek to ask the Commissioners to make any adverse findings about a specific incident, and we didn't ask for findings about whether a particular person, employer or government had engaged in conduct that constitutes violence, abuse, neglect or exploitation of a person with disability.

CHAIR: There appears to be an echo.

MS EASTMAN: Yes, I think ‑ sorry, Commissioners, and sorry if people are following. Commissioners, I think it's the room next door behind you where the volume is echoing back.

CHAIR: We will attend to that. Thank you.

MS EASTMAN: I'm sorry for that. We will disclose all of the secrets behind our hearing room for those following the hearing. It is not quite as ‑‑

CHAIR: Maybe just pause for a few seconds while the message is conveyed. Okay. Let's see how we go now. Thank you.

MS EASTMAN: All right. But let me know if there is any echo. We did submit at the conclusion of Public hearing 9 that it was open to the Royal Commission to consider the totality of the evidence presented at the public hearing and the extent to which the evidence disclosed key themes and issues. The approach we took in that hearing was to have regard to the totality of the evidence, and we said that it supported the Royal Commission finding that there are systemic barriers experienced by people with disability in obtaining and retaining employment in the open labour market.

When we made our Counsel Assisting submissions following Public hearing 9 ‑ and they are also available on the Royal Commission's website ‑ we said it was open to the Royal Commission to find that there are barriers experienced by people with disability, and in that respect we identified 26 barriers that could be grouped into four broad areas: Attitudinal, physical, or environmental organisational barriers and structural barriers.

It has been a while since Public hearing 9 and, indeed, a while since Public hearing 19, so I have put up on the screen some slides that just, in brief terms, summarise the nature of those barriers. The first slide, you will see, sets out the four overarching areas of systemic barriers. And then if we move to the division of the 26 barriers within each of those headings, Attitudinal Barriers, which was quite a significant issue arising in Public hearing 19 ‑ if we could just go back to that slide. Thank you.

We identified seven particular areas. These are around assumptions and how those assumptions then played into the lack of access to opportunity. Disclosed discrimination - we identified in Attitudinal Barriers the requirement to disclose and the circumstances of disclosure of a person's disability. We looked at discrimination in the workplace. We looked at the attitudinal barriers allowing a person's unique skills to be overlooked, and we also looked and understood the negative mental health impacts. So that's the first category of barriers, attitudinal.

The second are the Physical and Environmental Barriers. This started to look at issues concerning physical access and inaccessible workplaces, the lack of support, inaccessible means of communication, but also starting to touch on some of those broader issues about the lack of available jobs and the impact of housing and transport as barriers to be able to even get to workplaces. And technology, design and communication were raised with us as issues concerning barriers.

The next slide takes us to Organisational Barriers. There are quite a few issues that arose in the context of organisational barriers. These covered such matters as the lack of access to skills training and education, the nature of the way in which work may or may not be available for some people, access only to part-time work or the opportunity to volunteer or become work experience participants. We also understood and addressed the lack of assistance in becoming 'job ready', and we considered the role of job service providers. In that respect, Commissioners, you will recall that a few weeks ago you held Public hearing 21 which looked specifically at the Disability Employment Service providers.

The other Organisational Barriers identified were matters around inaccessibility of job advertisements and role descriptions. Knowledge, skill, leadership and resources can be both a great benefit but also operate as a systemic barrier, as do flexible working arrangements and reasonable adjustments. And then finally on Organisational Barriers, the question of career progression.

Then, finally, we turn to Structural Barriers. This is taking a really big picture approach. Those barriers concerned a lack of access to adequate income, employment-related advocacy services, again the operation of the DES program and, in particular, bringing those three elements together, the interconnectedness and the complexity of the programs that exist to support people with disability to enter into open employment. And that may be accompanied by an impact on people's broader support. For example, we heard about the reduction or loss of the Disability Support Pension.

Some of the other Structural Barriers ‑ and I will just finish on these matters that take us up to the 26 areas ‑ is the participation requirements and mutual obligations. That was certainly an issue raised in relation to the intersection between social security systems and obtaining open employment. The gaps in support and then these big questions about pathways and transitions. Job capacity assessments also linked in with the mutual obligation requirements and the operation of the DES system. And then, finally, the legal protections in the workplace. And you will remember, in that respect, hearing at Public hearing 9 from the current Disability Discrimination Commissioner Dr Ben Gauntlett on aspects of the effectiveness of the Disability Discrimination Act.

So, Commissioners, in the context of open employment, these barriers may arise when a person prepares to enter the workforce, seeks a job, participates in recruitment processes and then commences work. These systemic barriers may also arise during a person's employment, or it may lead to the loss of jobs or the cessation of employment. A person with disability may experience some or all of these barriers at different stages. Some people may not experience those barriers but the barriers may arise not because of the circumstances of the person with disability but the barriers arise because of the systems or the conduct of other persons. The barriers may arise because they reflect long-standing workplace cultures and practices.

For some people with disability their experience of these barriers results in violence, abuse, neglect and exploitation. In this context, I want to say something about the importance of employment. Meaningful employment is important for all of us. It has an impact on every person's ability to develop the economic security that they may wish, to have social connection, our status, our identity and our contribution to our communities. Dr Gauntlett said at Public hearing 9:

"The participation in meaningful employment gives people with disability a sense of self-worth, self‑respect and self‑esteem. "

This is, of course, in addition to other benefits for employers in the broader economy, and that includes productivity, performance, innovation, increased access to a broader pool of talent and improvement to organisational reputation. The impact of work or the lack of work on health and wellbeing is multi‑directional, and the opportunity to work in a stable employment environment of one's own choice, enjoying just and favourable work conditions, is linked with health, wellbeing, social, economic and financial inclusion.

Employment plays a role in preventing violence, abuse, neglect and exploitation for people with disability. Employment is not simply about economics. Employment is also about human rights. Article 27 of the Convention on the Rights of Persons with Disabilities recognises the right of a person with disability to work. And this includes the opportunity to gain a living by work freely chosen or accepted in a labour market and a work environment that is open, inclusive, and accessible.

Australia is a party to the CRPD and it is required to take appropriate steps to realise this right. At Public hearing 9, many witnesses with disability spoke about the importance of employment for them and the impact of meaningful employment on their life. Building on the evidence from Public hearing 9, the Royal Commission convened Public hearing 19. That was to provide an opportunity to hear from both the private and public sector employers to understand from these employers about the systemic barriers and also to see to what extent their practices and policies sought to address systemic barriers and ideally work to eliminate those barriers.

Public hearing 19 provided the opportunity to consider the practices and policies together with the regulation, touching on private and public sector employers as well as the government institutions and the particular responsibilities of regulators. At Public hearing 19, you heard from 40 witnesses. You received over 65 exhibits. This included hearing from 12 private sector employers and seven public sector employers.

To recap, Commissioners, you will recall that you heard from leaders in human rights and disability: Dr Graeme Innes, the former Disability Discrimination Commissioner, and Ms Christina Ryan from the Disability Leadership Institute. You had the opportunity to hear from Ms Robin Banks. She has been a legal practitioner and advocate, the former Tasmanian Discrimination Commissioner and now researcher.

As we said, Public hearing 19 was not focused on the experience of people with disability in the sense that we had many witnesses with disability appearing at that hearing. But you did have the opportunity to hear from Mr Peter Olivieri, whose evidence we will address shortly. He appeared on a panel with lawyers who were, frankly, at the coal face: Ms Kairsty Wilson from AED and Ms Melanie Schleiger from the Victorian Legal Aid. They told us about the experiences of advising and assisting employees with disability.

You heard from Kristy Masella, the CEO of the Aboriginal Employment Strategy about some strategies that worked in relation to Indigenous employment. We also wanted to take that big‑picture perspective ‑ and Commissioners will recall that you had the opportunity to hear the perspectives from trade unions, from Mr Connolly of the ACTU, and Ms Melissa Donnelly from the CPSU. You also had the opportunity to hear the perspective from business, and Jennifer Westacott appeared and spoke with respect to her members as part of the Business Council of Australia.

We wanted to get a sense of the regulators and their role in relation to disability and open employment. And you will recall, Commissioners, you heard from Ms Sandra Parker, the Fair Work Ombudsman; Ms Michelle Baxter, who was accompanied by Ms Amanda Johnston and Ms Leah Edwards from Safe Work Australia. You heard from Susan Weston and Natalie Bekis from Comcare, Mr Colin Radford from Worksafe Victoria, and, perhaps both quasi‑advocate and regulator, you heard from Emily Howie and Laura Matthews from the Victorian Human Rights and Equal Opportunity Commission.

If we then turn to the employers, it was not possible in the course of the five-day hearing to hear from every State and Territory employment operations and to take an overview from every jurisdiction. So the focus at Public hearing 19 was on three jurisdictions: The Australian Government or the Commonwealth ‑ and you will recall that you heard from Australia's Public Service Commissioner Mr Woolcott, who gave evidence on behalf of the Australian Public Service Commission. You also had the opportunity to hear from some of those directly involved in agencies such as the NDIA, the ATO, Services Australia and DSS.

We also had the opportunity to hear about the practices and policies operating in Victoria. Mr Adam Fennessy gave evidence on behalf of the Victorian Public Sector Commission. Vicki Telfer appeared as the Commissioner for Public Employment for the Northern Territory, and she spoke about the approaches taken in the Northern Territory. Together, these three particular jurisdictions employ over 233,500 people.

The Royal Commission also wished to hear from the private sector. For the purpose of this hearing, our focus was on large Australian employers and perhaps employers whose names and businesses were very well‑known to the Australian community. We acknowledge that we did not have the opportunity to hear from small to medium-sized businesses, to look at employers in the not‑for‑profit sector, or employers who had different employment arrangements, for example, people who were self-employed, independent contractors, and those working in the gig economy.

One of the telling features that emerged from the evidence at Public hearing 19 with respect to the 12 private-sector employers was that, while combined they employed over 480,000 people in Australia when we asked each of the employers about the level of employment for employees who identified as people with disability, numbers were, with respect, surprisingly small and, indeed, on one level disappointing. Commissioner, we have set out the precise numbers in our written submissions, but without addressing all of the employers, can I identify just a few.

The largest employer group appearing at the hearing was Woolworths. Woolworths employ over 200,000 people in Australia. In terms of the HR systems for Woolworths, only 1,705 people identified as employees with disability out of the overall workforce of 200,000 employees. It represented under 1 per cent of the workforce. Those numbers were broadly consistent across the employers, perhaps with the exception of Australia Post. It employs around 37,428 people. It said that its HR system identified 1,464 people, representing close to 4 per cent of the workforce.

So, Commissioners, we felt that at the conclusion of the hearing that the number of employers, albeit they're relatively small, did provide you with a substantial snapshot into the approach of employers that was sufficiently broad to capture some sense about the way in which the systemic barriers identified at Public hearing 9 operated or were addressed by employers in Australia.

We do accept the limitations, that it was only 12 employers in the private sector that we focused on, and so we were conscious, in addressing the evidence, to identify matters that might reflect systemic themes and issues. What we wanted to do is to say that, from the material, you can identify trends and themes, and that provides a sufficient evidentiary basis to support a finding that the systemic barriers identified in Public hearing 9 are, indeed, systemic barriers experienced by employers in Australia.

Our focus at Public hearing 19 was to understand how employers address the systemic barriers. And we wanted to focus on those broad themes. Some of the broad themes touched on recruitment practices. We also looked at how jobs were designed, the nature of inherent requirements of a job and how that requirement operated for people with disability. We focused on workplace adjustments and the extent to which policies and practices that purported to give effect to legal obligations such as the obligation to make reasonable adjustments operated throughout the companies and the extent to which those companies' employers understood their legal obligations.

We also examined the extent to which other legal obligations that touch upon the day‑to‑day operations of employers intersected with the rights of people with disability. They covered areas such as work health and safety, the impact of workers compensation laws. And we also turned our attention to what needs to happen to make workplaces inclusive, and we wanted to look at those workplaces that had inclusion policies, diversity policies, or a range of initiatives, to understand what makes their workplace inclusive and what are the keys to success.

Chair, as you have mentioned, our written submissions are detailed ‑ that may be a polite way of saying that they are very long. But we did attempt to provide a comprehensive and fair account of the evidence. We were grateful for those parties who identified the odd typographical error or sought for us to make corrections. We have provided the parties who identified those matters with a marked-up copy of the submission, the amendments have otherwise been made and incorporated into the submissions that are now available on the Royal Commission's website.

We will say this: Subject to some comments that Ms Bennett will address shortly, the vast majority of the parties who participated in the hearing and the witnesses who gave evidence have not challenged our characterisation of the issues in our written submissions and specifically have not challenged the existence of the systemic barriers. Chair, you have outlined the parties who have had leave to appear and who have provided both substantive responses or provided shorter responses and replies. I don't need to repeat those matters.

Counsel Assisting shares the view of the Commissioners, that there has actually been very little engagement with our submissions. On one hand, it may be that there's no objection to what we've said, but, on the other hand, it was clear in both our written submissions and the invitation, Chair, that you made to the participants at the conclusion of Public hearing 19 that we wanted to hear from employers to consider the potential recommendations and suggestions that have been outlined in the evidence and addressed in our written submissions to identify those areas that may be appropriate for implementation in their own workplaces. That's addressed at paragraph 630 of our submissions.

We also invited the parties with leave to appear and encouraged them to identify any proposed recommendations that arose in the evidence that they wished the Royal Commission to consider. And that's paragraph 631 in our submissions.

For that reason we had initially allocated two days for these oral submissions, perhaps with the expectation that you would be overrun by parties seeking the opportunity to make oral submissions to share with you their suggestions for change. It means, perhaps, Commissioners, that for the purpose of today's proceeding that the bulk of the oral submissions will come from Ms Bennett and from me, and it may be that the ongoing engagement of the broader employers and the open market ‑ labour market sector of Australia could be the matters for further consideration in the work of the Royal Commission. So, at this point, Ms Bennett will now continue our submissions, with the focus of looking at some particular issues raised by the parties.

CHAIR: Yes, thank you, Ms Eastman. Yes, Ms Bennett.

MS BENNETT: Thank you, Chair. Commissioners, I would like to turn to the engagement that the Royal Commission has had arising from the submissions of Counsel Assisting, and I would like to turn first to Mr Olivieri. Mr Olivieri gave evidence with Ms Melanie Schleiger of Victoria Legal Aid, a member of the Equality Law Program at that service. Mr Olivieri was her client.

In 2017, Mr Olivieri experienced a heart condition which caused him to feel dizzy when working on the night shift. He was treated and received a pacemaker. His cardiologist confirmed he was fit for work, but his employer stopped allocating him shifts. Mr Olivieri told us he was “gutted” when his employer said he would not have any more hours, and he described how he tried to assert his legal rights and how he came to be a client of Victoria Legal Aid. He said that the process was to him, Commissioners, a "total black hole. "

Mr Olivieri provided a four-page statement, and that statement recounted his experiences generally and asserted that a number of his experiences support the observations made in Counsel Assisting's submissions in respect to the attitudinal barriers faced by people with disabilities in the workplace. In particular, Commissioners, he endorsed Part 4 of Counsel Assisting's submission and he particularly agreed with the observation of witnesses concerning what we termed "the liability mindset" based on the myth that employees with a disability may be at an increased health and safety risk.

He supported a hotline model, to enable an employer to obtain information about disability disclosed by an employee, and we see that, Commissioners, as broadly supportive of a recommendation to create an agency as a central contact point. Mr Olivieri goes on to make submissions about the short time period which operate for unfair dismissal claims, and endorses the observation made in Counsel Assisting's submissions about non-disclosure agreements in settlements, noting at the very least that some information concerning past discrimination cases should be accessible to the Fair Work Ombudsman and Anti‑Discrimination Commissioners.

In addition to the submissions of Mr Olivieri, Commissioners, we received submissions from the Australian Government, and those submissions have addressed key themes and information provided in Counsel Assisting's submissions. They are specifically noted to be non-exhaustive, Commissioners.

As Ms Eastman has already observed, we identified in our written submissions a range of barriers faced by people with disabilities. Importantly, the Australian Government accept as a general proposition that barriers to employment for people with disability are varied and complex, and include community attitudes, physical and environmental barriers, organisational barriers, and structural barriers. This acceptance is appropriate, in our submission, in light of the fact that there is underrepresentation of people with disability in the workforce.

With respect to the public sector employees who identify as having a disability as recorded in human resources systems, the data available to the Royal Commission was summarised in our Outline of Submissions and which noted that the Australian Public Service human resources system recorded 5,929 people with a disability in its HR system, which is about 4. 1 per cent. The Northern Territory recorded 340 people, being 1. 2 per cent, and the Victorian Public Service recorded 218 people at 0. 4 per cent.

However, different data arose and we were taken, Commissioners, to some difficulties arising from the data in the responsive submissions. And it was pointed out, in addition, that quite different data arose from anonymous surveys. For example, the Australian Public Service reported that 9. 3 per cent of employees identified they have a disability as part of its 2021 Anonymous Census. And the Victorian Public Service likewise conducted an anonymous survey which disclosed a level of employment of 5. 2 per cent for people with disability in 2020, and 5. 6 per cent in 2021.

And we accept, Commissioners, that the rates of employment of people with disability are generally higher in an anonymous workplace survey. In their submissions, the Australian Government said that employees may be concerned about the implications of being identified as a person with a disability in agency HR systems, but are comfortable including that information in a de-identified survey. The Australian Government further observed in their submissions that disability is not necessarily static ‑ and we accept that those are matters that may be part of the reason for discrepancy in the data.

We maintain, however, Commissioners, that there is no single explanation for the discrepancy. In any event, whichever dataset is used, it is clear that it is not entirely reliable, and it was broadly accepted that the rates of employment were lower than they ought to be. None of the employers, Commissioners, sought to defend the low rates of representation of people with disability in their workforce.

The Australian Government in their submission acknowledged the accurate data is important to ensuring the efficacy of policies can be evaluated and that the Australian Public Service Commissioner is supportive of improved data. The Australian Government note that it is working on establishing an enduring National Disability Dataset with the aim of improving data collection. This is said to have the ability or capacity to improve data by linking data sources through State, Commonwealth and Territory systems.

The Australian Government tell us that linked data enable the identification of people with disability in mainstream services where information on disability is not otherwise collected in a consistent way, and that data linkage will enable cross-service views and analysis of pathways between services. And Counsel Assisting accept that the process of data linking may assist in capturing more data, but this does not operate to generate accurate data in the first place in the absence of disclosure and does not address, Commissioners, the fundamental issue of culture and discrimination which appear to contribute to the minimisation of data quality at the outset.

In response to the suggestion of expanding data collection, the Australian Government note that this was considered as part of the Employ My Ability program. It asserts it will be difficult to persuade people to disclose disability and so accurate data collection is difficult. We observe that this reiteration of the difficulties is not necessarily helpful; however, it is encouraging, Commissioners, that the Australian Government will consider, it says in its submissions, expanded data collection in the future with consultation with both employers and people with a disability.

Data collection is closely tied to another issue that was explored in the course of Public hearing 19 and that is the issue of targets. I would like to turn to that topic now. The Commissioners will recall the evidence of Graeme Innes, and I would like to just read out some of the evidence that he gave. He said, Commissioners:

"I used to be opposed to targets or quotas for all the reasons that get rolled out in opposition to them. I used to say that they just cause people to fill the numbers, fill the spaces, that people with lesser qualifications are appointed and they cause token appointments. I have now come to the view, which has been held for probably 10 or 15 years, that the only way to get people with disabilities into employment is to set targets. And I don't call them quotas because of the pejorative meaning that that word has gained over the years. The only way to get people with disabilities into employment is to set targets and then develop strategies to achieve those targets. "

We did not express any view on the nature or form of targets or quotas for the employment, promotion of retention of people with disability in the workplace, but we did submit that it was open to the Royal Commission to consider whether a recommendation should be made about enforceable targets or quotas in circumstances where other measures and strategies have not achieved a meaningful increase in the labour force participation for people with disability in open employment.

In response, the Australian Government noted its use of targets in some respects. It observed the APS strategy which sets out deliverables for both recruitment and retention, before noting that the APS strategy sets a target of 7 per cent of APS staff ‑ that is, Australian Public Service staff ‑ being people with a disability. The current employee census data puts that current figure at 8. 5 per cent. The Australian Government assert that its target of 7 per cent is a stretch target because it is assessed by reference to its HR system data rather than the census data.

However, this assertion raises two key concerns, and the first is because the Australian Government are unable to provide any insight into the way in which the 7 per cent target was derived, it's difficult to properly call it a stretch target. Further, the Australian Government appears to assume the HR system data is much less reliable than the census data in all respects. And the parties appear to agree that there is likely a range of reasons for the disparity and, therefore, it's not clearly open to conclude without analysis that the census data is accurate. On one view, the aim should be that there's no reason for people to fear disclosure so that the HR figures show such a disparity from the anonymous census data.

The Australian Government said that while the APS strategy includes employment targets, the use of targets with ‑ more specific targets would require consideration of the merit principle. We find a merit principle referred to again in the context of the RecruitAbility Scheme. Commissioners, we don't accept that there is any real tension between merit and targets.

CHAIR: Sorry, can you just help us ‑ are you referring to particular paragraphs?

MS BENNETT:  Yes. Paragraph 29 of the Commonwealth submissions.

CHAIR: Thank you.

MS BENNETT: And it is referred to separately, not in the context of targets but in the context of merit principle, at paragraph 35.

CHAIR: Thank you very much.

MS BENNETT: If it please the Commission.

CHAIR: Yes, sorry.

MS BENNETT: Commissioners, we don't accept there is any tension between merits and targets. The benefits of more diverse recruitment have been broadly recognised by witnesses in this hearing. And the risk that applying the merit principle is that it's a concept with a long history of supporting the status quo. Ms Christina Ryan gave evidence about the topic and discussed with some passion the way that merit can be used as a barrier. Commissioners, the utility of merit is an issue which the Royal Commission will no doubt carefully consider in the preparation of its Final Report.

The Australian Government noted in addition that during the development of the Employ My Ability scheme, some stakeholders suggested mandating disability targets to hold employers accountable. And it said the more prevalent theme in feedback was the importance of creating a genuine cultural change within organisations as a way to increase employment outcomes for people with disability rather than targets, which may result in a “tick and flick” response.

While it may be that this was the focus of stakeholders in the course of considering the Employ My Ability program, it doesn't necessarily exclude the possibility of meaningful targets or that one can meaningfully seek to achieve cultural change while simultaneously using targets. The concern about “tick and flick” ‑ which we find at paragraph 85 of the Commonwealth's submissions ‑ is cited without a clear foundation in the evidence before this Royal Commission.

Overall, without saying so explicitly, the Australian Government seems to express little direct support for the further expansion of targets in assisting in lifting disability employment outcomes. And it's an issue that will need to be further considered in the overall context of the Commission's work.

Commissioners, I want to return now to the question of promoting inclusion, which was a key theme in the Royal Commission in Public hearing 19. In our Outline of Submissions, we placed emphasis on the importance of an inclusive working environment across the entirety of a person's contact with an organisation, from recruitment to promotion to day‑to‑day work. And this was broadly accepted by the witnesses that gave evidence and by the submissions that we received.

The Australian Government identify and outline Australian Public Service initiatives to promote inclusion, and much of the material in this respect concern recently developed initiatives such as the 2022 Directions which commenced on 1 February of this year. They are said to provide a clearer articulation of how RecruitAbility applies to the selection process. And I pause to acknowledge, Commissioners, that these have commenced but note they were largely not reviewed or examined in Public hearing 19 which took place last year.

The Australian Government make a number of submissions about the different practices of the various Australian Government agencies which were the subject of some evidence in Public hearing 19, and I would like to make a few observations around those. For example, your Counsel Assisting noted that the NDIA's Workplace Adjustments Policy had a broad statement of the purpose of adjustments. In the context of that broad approach outlined in its introductory passages, the NDIA's policy then expressly provided that an adjustment should assist in removing barriers that may be faced by an employee to meet the inherent requirements of a role. By its submissions, the Australian Government observed that a review of the Workplace Adjustment Policy is underway and will involve consultation with employee network and agency consultation network.

We also noted that an Adjustment Passport was another matter that was flagged as a potential area for positive change. Such a Passport would permit an employee to obtain approval for adjustments just once without requiring ongoing disclosure and justification to different managers or different departments over time. The Australian Government explain in their submissions that they will be reviewing Passports at the NDIA in April of 2022.

The Australian Taxation Office also provided evidence in Public hearing 19 and the issue of inherent requirements was acknowledged as a challenge for the ATO, particularly when it comes to bulk scale recruitment. The Australian Government does not necessarily accept that the delegates for standard recruitment are challenged by identifying inherent requirements – and submits that it is in the standard recruitment model as against the bulk model, where there is no such challenge.

Once again, we seek to focus on the solutions, on the areas in which challenges have been identified and to improve upon them. In any event, our submissions in this respect do no more than recognise that an area of lower familiarity can itself be challenging.

In our submissions, we noted there was an apparent requirement to disclose a disability in the course of recruitment, and this was raised in the context of a Process Map that was developed by the Australian Taxation Office which set out in summary form the steps to be undertaken to ensure that reasonable adjustments identified through the process are provided for the employee's first day. The Process Map Guide indicated a candidate was asked a mandatory question requiring the disclosure of a health condition or disability, and a voluntary question about the need for adjustments.

Mr Chapman on behalf of the Taxation Office in Public hearing 19 said that a candidate answering these questions could choose not to disclose their medical information. Counsel Assisting observed there was a tension between that evidence and document. In their submissions, the Australian Government note in response that it's the job application form that gives the option to not disclose a disability and assert it was open for the candidate to opt to not disclose. It submits that the question about whether a person has a disability is at the onboarding stage. None of which, Commissioners, really alters the immediate point that the requirement to disclose is a matter of concern, as is the lack of clarity around the issues in the documents themselves.

The Department of Social Services likewise gave evidence about its workplace adjustments. And we noted in our Outline of closing that it did not capture data about the number of workplace adjustments or reasons why they were not provided. The Australian Government noted in response that managers are expected to discuss with staff any assistance they require and that the Australian Government observed that it is in the early stages of investigating how it can ensure those discussions are taking place and monitor and support staff with a disability.

Services Australia gave evidence about the way that it provided adjustments required in the course of employment. Said they can be requested formally using the workplace ‑ sorry, the Request for Workplace Adjustment Form or requested and agreed to informally between an employee and their manager. We noted in our submission that the Service Australia Workplace Flexibility Policy provides that flexibility can be requested as a workplace adjustment.

And we noted that the Services Australia Diversity Strategy had a target of decreasing workplace adjustment interventions and increasing the number of staff who use assistive technology. In our Outline of closing, we asked how Service Australia can know it is meeting its target strategy if no data is captured, and the Australian Government in its submissions responded by noting that a workplace adjustment is a small component of the Service Australia story and said that not all adjustments have a cost.

It notes that it aims to make the process straightforward and to simply support the making of the adjustment. And, Commissioners, there is much to recommend simplicity. But in the face of barriers faced by people with disability in accessing employment, we submit that an approach which doesn't commit oversight and monitoring is one that presents some difficulties, consistent with our written Outline of closing.

Commissioners, we return, then, to the nature of the effective strategies that have been adopted or contemplated to increase employment participation. And the Australian Government acknowledges candidly that people with a disability face multiple disadvantages in the labour market and it is committed to helping more people with disability find work and reach their full potential. Commissioners, this is an important acknowledgment and important commitment.

In addition, the Australian Government also respond to our submission that an increased degree of coordination is required across government, regulators, employers, unions and others who are responding to barriers to open people for people with disability. We submitted there was value in having a cohesive and coordinated approach across governments, regulators, unions and others. And the Australian Government in its submissions responded by recognising the importance of communication, collaboration, and overarching strategies to coordinate its approach to complicated legal and policy issues. And it identified various examples of that collaboration and concluded that:

"Due to the complexity of the issues in overlapping jurisdictions, thorough consideration should be given to the membership and governance of any co‑ordinating body, including identifying relevant policy department head or chair of a group to coordinate. "

Overall, the Australian Government is supportive of further consideration of a coordinated approach that we identified in our Outline of Submissions to you, Commissioner.

A related issue identified by Counsel Assisting was there are a range of national workplace relation systems and other frameworks covering matters relevant to the employment of people in Australia and including people with a disability. The Australian Government note that there is some value in specialisation and ultimately submitted and I will quote:

"The Australian Government acknowledges there is a need for specialised regulators to work to minimise the potential for issues to fall through the cracks, overlap between agencies or to be dealt with inefficiently by multiple regulators. "

One example of the kind of reform that the Australian Government said it was open to exploring was the concept of a return referral mechanism where a dispute can be referred back between the Fair Work Ombudsman and the Australian Human Rights Commission to encourage constructive dialogue rather than locking in an adversarial path.

Turning, then, to the submissions received by New South Wales, I would observe that New South Wales did not have direct involvement in Public hearing 19; however, it did engage with Counsel Assisting's submissions and made a number of observations about some of the topics to which I have already adverted. In particular, New South Wales noted that the position as to whether a person can be asked or required to disclose a disability remained unclear or confusing for many employers.

In relation to data collection, it noted there are significant challenges in this domain and referred to its previous submissions around those topics connected with Public hearings 8 and 16. New South Wales seeks the opportunity to address any proposed recommendations around the collection of data in the future.

In relation to the concept of cooperation between regulators, New South Wales noted that the evidence highlighted the need for closer and better cooperation between the regulators and submit that there would need to be careful consideration of any amendment to laws, but that if any such amendments were being considered, that New South Wales would wish to participate in the process. As to targets, New South Wales disclosed in its submissions that the proportion of its public sector employees who had disclosed having a disability on its HR system were 2. 5 per cent, with a target to increase that figure to 5. 6 per cent by 2025.

It may be worth noting that the existence of this target, New South Wales describe it as particularly ambitious, because disability is multi-faceted and complex. It's not clear, Commissioners, why that renders the target ambitious. However, we take the fact that the target exists as positive and lending some support to the notion of targets as having some utility. New South Wales further note the significance of the 2021‑2032 Disability Strategy to the ongoing work of the Royal Commission.

I also note that Kmart made some brief submissions indicating some concern at the characterisation of some parts of the evidence in Counsel Assisting's submission, and we sought no adverse findings in relation to those matters and are satisfied with the way that they are presented in Counsel Assisting's submissions. I now hand back to Ms Eastman to take the Commissioners through the final part of the Outline.

CHAIR: Thank you, Ms Bennett. Yes, Ms Eastman.

MS EASTMAN: Thank you, Commissioners. Well, in the months since Public hearing 19 has concluded, there were a number of initiatives that have been announced. In early December 2021 ‑ indeed, a week after Public hearing 19 concluded ‑ the Australian Government released Australia's Disability Strategy 2021‑2031. Employment and financial security are identified as priority areas in the National Strategy. The Strategy notes that employment and financial security are central to improving outcomes for people with disability. This includes providing jobs, career opportunities, and having adequate income for people to meet their needs.

The new Strategy identifies the following outcomes: The outcomes sought are that people with disability have economic security, enabling them to plan for the future and exercise choice and control over their lives. This is supported by three priority areas. First, increase employment of people with disability; second, to improve the transition of young people with disability from education to employment; and third, to strengthen financial independence of people with disability.

One of the associated plans with respect to the new Strategy was also released in December 2021 and it's described as Employ My Ability. This strategy identifies four priority areas for change. The first is lifting employer engagement, capability and demand. That involves providing employers with the tools and abilities to confidently hire, support, develop and retain more people with disability. The second priority area is building employment skills, experience, and the confidence of young people with disability. This is said to have the objective of ensuring young people with disability are supported to obtain work and careers of their choice.

The third is improving systems and services for job seekers and employers. This has the aim of making it simpler for job seekers with disability and employers to navigate and utilise services and driving better performance from service providers. And the fourth is changing community attitudes, changing people's perceptions and expectations about the capability of people with disability in the workplace.

Now, related to the issue of changing attitudes we also note the Australian Government's recent release of the Community Targeted Action Plan which addresses a number of measures designed to change attitudes. We also note that the Department of Social Services is currently undertaking a public consultation about how the Disability Employment Services, the DES program, could improve employment outcomes for people with disability. We noted in Public hearing 19 that a consultation paper, Inclusive. Accessible. Diverse. Shaping your new disability employment support program had been made available and the consultation was underway. We examined issues concerning that consultation at the recent Public hearing 21 hearing, and I think shortly after the hearing concluded, the submissions that have been made in response to the consultation were made available on the Department's website. There are obviously a range of suggestions for change and reform of the DES program.

And, Commissioners, even as late as last Friday, the Australian Government released a report on the Review of the Workplace Gender Equality Act. You will recall reference was made at Public hearing 19 to the role of the Workplace Gender Equality Agency. That's an agency that collects data and provides reports in relation to the employment of women in large Australian workplaces. One of the recommendations from the report released last Friday ‑ Recommendation 6 ‑ addresses the question of the best way to collect diversity data. And, in that respect, the recommendation makes specific reference, among other things, to disability as a source or point of data collection.

Commissioners, in addition to the work done at Public hearing 9 and Public hearing 19, it's clear that there is a lot of activity that is occurring outside the context of the specific Public hearings that touch upon the work of the Royal Commission. We also note, in this respect, that there's ongoing work for the Royal Commission on the question of segregated employment and the experience of people working for Australian Disability Enterprises.

Commissioners, you have scheduled a hearing ‑ Public hearing 22 ‑ to occur in April to look specifically at this aspect of employment, and it does raise an issue about the extent to which people who work in Australian Disability Enterprises have transition and pathways into open employment.

So can I then turn, before we have a break, to the next steps. Commissioners, we are not seeking any adverse finding arising from the evidence in Public hearing 9 or Public hearing 19 with respect to the conduct or actions of any individual, employer, government department or agency. However, we do think that you should be satisfied that the evidence supports the finding of the 26 systemic barriers that we identified at the conclusion of Public hearing 9.

We understand, Commissioners, that you are concerned to ensure that, as the Royal Commission works through the issues of violence, abuse, neglect and exploitation of people with disability in the area of economic participation, which includes employment, that this is ongoing work. We understand, Commissioners, that you are not minded to issue a stand-alone hearing report for Public hearing 9 and Public hearing 19. Rather, you will consider all of the evidence as part of your ongoing work and that any recommendations arising out of Public hearing 9 or Public hearing 19 will be addressed in the Commission's Final Report and all of our work will be continued to be directed to the Terms of Reference.

But, Commissioners, we understand that in addressing matters in the final report it is imperative that we look at issues concerning the stagnant percentage of labour force participation for people with disability. You have heard now from many witnesses that the rate of labour force participation lags significantly below the rest of the general population at around 53 per cent, and it has not moved in over 20 years. There are no doubt a range of reasons for this low level of labour force participation.

But the Royal Commission needs to address, in any recommendations, measures that will shift the dial, as people have said. This means addressing the systemic barriers that we have identified. It probably doesn't mean that we need to make the case for change. The case for change was set out 20 years ago, and the issues raised in the case for change concerning rights, social implications, and the economics of change are well made.

What's needed are measures that will achieve sustainable and real change. What we need to do is be more ambitious, not simply recycle existing or old policies with the hope that something might change and the situation may improve and that somehow we will see an increase in the rate of labour force participation for people with disability in open employment.

We have given careful consideration as to whether to propose any recommendations to the Commissioners at this stage. When we've looked carefully through the totality of the evidence, I think we counted at least 90 stand-alone recommendations. They could be really simple measures about how to access buildings or flexibility in working arrangements or hours. But some of the recommendations made in the course of the evidence of witnesses touch on some complex and some very significant systems changes.

We particularly acknowledge and thank the contribution of people with disability to our hearings in the suggestions that they have made. Listening closely to the experience of people with disability and their suggestions for change must guide the work of the Royal Commission. We think it's also important to draw on past reports to perhaps learn from what others have done in the conduct of earlier inquiries, and you will recall that we placed emphasis on the work of the Australian Human Rights Commission in 2016 with the Willing to Work report.

But we also note that it's not just Australia that has experienced issues of this kind, and we also encourage the Royal Commission to turn its attention to any promising practice and the experience from overseas jurisdictions. Any recommendations must be guided by people with disability and recommendations, though, should also not overlook the key characteristics of what our Australian employers have to do to run their businesses and their obligations with respect to their employees.

Recommendations in that respect must understand the challenges and the operating environments for persons, institutions and bodies to whom any recommendations may be directed. So, as Counsel Assisting, may we be so bold to identify four important areas. In our assessment of the evidence, if the Royal Commission is minded to make any recommendations, it must think critically and do hard work in addressing ableist attitudes, be they conscious or unconscious bias.

These attitudes serve to exclude people with disability from employment. It's simply a matter of not even being able to enter the front door. But ableist attitudes can sometimes hide what we believe to be decisions made on merit or they can hide decisions where we find excuses to allow us to justify the exclusion of people with disability from our workplaces. We need to be aware that ableist attitudes can assist in us making easy and quick findings that people cannot do the inherent requirements of the job.

Or that they don't meet merit. Or that they will be a risk to work health and safety. Or that the issues concerning people with disability in workplaces are complex. Or there are additional costs. Or there's fear. Or there's just simply a worry that someone may not fit in. It is confronting to have to accept that there are ableist attitudes that operate in Australia that have the effect of excluding people with disability from Australian workplaces.

We don't accept racism, sexism, ageism, and other forms of discrimination, and so if we need to confront ableist attitudes, then we must direct our recommendations to addressing practical means of overcoming these attitudes.

Second is the controversial issue of targets and quotas. We have addressed this at paragraph 572 of our submissions. We are acutely aware that the setting of a particular target may send the message that a workplace is only worthy of 10 per cent or 20 per cent of people with disability in the workplace. I think I have said consistently to my team here at the Royal Commission when Ruth Bader Ginsberg was asked how many judges should be women of the Supreme Court of the United States, she said, "There is no reason why it can't be nine. "

Sometimes we make assumption about inclusion that setting a quota or a target can be itself a ceiling, but there is utility in setting enforceable targets that accelerate change. And if there are enforceable targets with sanctions for not meeting those targets, then that can be one of the levers for change, and we invite the Royal Commission to think critically about the use of enforceable targets in its recommendations.

The third area is confronting the concepts of substantive equality and helping Australian employers and workplaces to understand that simply treat everybody the same way is a tool for entrenching inequality, particularly where people in the workplace don't always start from the same position. Addressing substantive equality is particularly important for ensuring that people with disability in the workplace can be included.

This means looking critically at positive obligations to make reasonable adjustments in workplaces. It would be our respectful submission that the Royal Commission consider making recommendations about the importance of reasonable adjustments in workplaces. Not simply the ad hoc adjustment that's made for an employee on an employee‑by‑employee basis, but reasonable adjustments that reflect concepts of universal design and job sign.

This may lead into our fourth area, which is looking at stronger legal protections. Not just protecting people with disability, but also providing mechanisms of holding employers and workplaces accountable when these standards are not met. We have touched in our written submissions on aspects of amendments to the Fair Work Act, as have other witnesses, and also to the Disability Discrimination Act.

We certainly got the sense from some of the evidence that we heard at Public hearing 19 is that everybody just assumes that if it's a disability issue, then we go to the Disability Discrimination Act to find a remedy. People with disability should have equal access to the rights and protections of employees that exist under general industrial law, including the operation of the Fair Work Act. We would encourage the Royal Commission to look at the somewhat complex systems that operate in people seeking their rights under the Fair Work Act and the Disability Discrimination Act. The law should be clear, the law should be accessible, and those seeking to access their legal remedies should have available support to ensure that they have access to justice.

So, Commissioners, those are Counsel Assisting's recommendations, if we can put in a bid for recommendations. Can I make this final point: Recommendations should not be directed to fixing people with disability. Some of the suggestions have a flavour of fixing the person with disability. Let's count them; let's train them; let's ask them to disclose personal information that we won't ask of other employees. Let's assist them through a medical process which we don't require of other employees. Let's encourage them to give of their time the opportunity to train other people to form support groups or to be mentored.

We need to think carefully that our recommendations don't have the effect of further entrenching stigmatised views stereotyped views about people with disability in our workplaces. Frankly, we have learnt in the Royal Commission that people with disability will tell you what they need by way of supports or otherwise and when. So the barriers must be focused not on fixing people with disability, but addressing the systems and practices that have erected the systemic barriers and allow those barriers to be maintained.

Chair, as you said at the close of PH 19 but also this morning is that there may be opportunity for the Royal Commission to examine the impact of these recent strategies during the life of this Royal Commission and there may ‑ and I stress only "may" ‑ without making a commitment, the opportunity to revisit some of these issues in a wrap up hearing in early 2023. If the Commission pleases.

CHAIR: Perhaps I could inquire whether any of the parties represented today propose to supplement their written responses to Counsel Assisting's submissions.

MR HODGE: Commissioner ‑‑

CHAIR: That either means that no party intends to do that, or you are not online. So ‑ sorry. Go ahead.

MR HODGE: I'm sorry, I was going to say the Commonwealth didn't propose to supplement its submissions, but if the Commissioners had questions then we were going to answer those questions or, alternatively, at least take those questions on notice and go away and see if there is further information we can provide the Commission.

CHAIR: Thank you. After the break, there will certainly be an opportunity for Commissioners to ask questions, but at the moment we would just like to know whether any party intends to supplement their written responses and I take it from silence that the answer is no.

MS FURNESS:  Commissioner, on behalf of New South Wales, we have no intention to supplement our written submissions.

CHAIR: Okay. Thank you. All right. Well, thank you ‑ sorry. Yes.

MS THEW: I beg your pardon. I didn't mean to cut across. May it please the Commission, Lendlease makes no particular submission. There have been no written submissions filed.

CHAIR: All right. Well, I will assume there is nothing further to be done in that respect. We will take an adjournment, and it is now 25 past 11 Sydney time. We will resume at 11. 40 Sydney time and that will be the opportunity for Commissioners to ask questions. Thank you very much.






CHAIR: Yes, thank you. I will invite Commissioner Ryan first to ask any questions he may have of parties who are represented today. I should just say that the fact that parties have chosen not to appear today of course makes it rather difficult to ask them questions. So we will need to be careful that we do not unduly prejudice those that have done us the courtesy of turning up as distinct from those who have not. Yes, Commissioner Ryan.

COMMISSIONER RYAN: Thank you, Chair. Look, I would like to ask a few questions of the Commonwealth and, in particular, I would like to first of all address the ‑ I notice that in your response to Counsel Assisting, you have made reference to the term "merit" in two paragraphs of your response: Paragraphs 29, a footnote 23 and paragraph 35 in your response. I was wondering, first of all, does the Commonwealth have any document define the term "merit" in the way it is used by people who make determinations of who gets appointed in the public sector.

And then, secondly, I notice that the term "merit" ‑ I presume because of the footnote ‑ is referred to in the Public Service Act as one of the principles for recruitment. But I note also that one of the other principles listed in the same section of that Act is item (g) which says that appointment should:

"Recognise the diversity of the Australian community and foster diversity in the workplace. "

How does the Commonwealth propose to balance those two principles which appear to have equal importance in sections of the Act? Is it not reasonable to suggest if a person is competent and perhaps even a reasonably high performer that if it's in the interests of the Australian community and fosters diversity in the workplace, it might be appropriate to appoint them and that would be, indeed, a meritorious appointment? Is it possible that members of the public sector don't understand the implications of item (g) as well as they might understand item (c) in the Public Sector Act?

CHAIR: There are probably a few questions there, Mr Hodge. But you take them in the order you think appropriate.

MR HODGE: I will do the best I can. Thank you, Commissioner. Commissioner, you're right. And I think this is what you were referring to, that section 10A of the Public Service Act sets out a number of different matters and identifies that ‑ and refers to and uses the term "decisions based on merit. " And it also recognises the diversity of the Australian community and fosters diversity in the workplace. Or that is the purpose or an employment principle of the APS.

So I think in ‑ I think a question ‑ and I think it might have been your second or third question was whether it's referenced or based or founded in the legislation, and the answer, I think we are agreeing on, is, yes, it is. As to whether there's a document that sets out what is meant by the term "merit", are you referring to what is meant when the legislation uses the term "merit" or what the APS considers to be merit? I think those might be two ‑‑

COMMISSIONER RYAN: Well, merit is a pretty broad principle so obviously how the term merit is understood is obviously very important. So how are people in the Australian Public Service advised as to how to balance the issue of merit versus the need to make sure that the Australian public sector recognises the diversity of the Australian community and fosters diversity in the workplace? How are people advised how to balance those two things? Because, in my view, it seems that confusion of those things is resulting in people with disability being excluded on some idea of merit.

MR HODGE: I think there's a few different things we probably need to break up there. I think assumed within your question is the proposition that there is a tension between merit and ‑ recognising merit and recognising the diversity of the Australian community and the fostering of diversity in it the workplace, or that that is a tension that is assumed by the Public Service. And I don't think that's right. And I think, in fairness to you, you would probably say ‑ I expect, because I think most people would say this ‑ there is no actual tension. The issue is whether or not the use of the criterion of merit is, in fact, not true on the basis ‑‑

COMMISSIONER RYAN: Well, can I take you ‑‑

MR HODGE: I'm sorry, would you mind if I finished?

CHAIR: No, continue, Mr Hodge.

MR HODGE: And the long-standing problem in many different contexts is that the term merit is used when it's not actually about merit; it's actually a way of either consciously or unconsciously reinforcing existing biases. So insofar as your question is how does the Public Service weigh up some contest between merit and the recognition of diversity, I don't think I can accept the starting proposition that there is such a contest or that the Public Service considers there's such a contest.

And that's not the submission that the government has made. But insofar as more generally you're asking is there some guidance that is published for the Public Service in relation to employment decisions as to what constitutes merit or as to considerations of avoiding unconscious bias in relation to merit in order to ensure the recognition of diversity, I will take that on notice and we will see if there's further information that we can provide to you.

COMMISSIONER RYAN: Well, Mr Hodge, you've said there's no contest between the two principles.


COMMISSIONER RYAN: Yet paragraph 35 of your submissions states as follows:

"Merit remains the key consideration for the selection process through RecruitAbility. "

Now, if merit is the key, that suggests that there's a contest between other things, doesn't it? And isn't that one of the reasons why RecruitAbility isn't working? People are being excluded on the basis of merit. Because apparently there is a contest, and the overwhelming consideration has been given to merit, even though merit is listed amongst many other things?

MR HODGE: No, Commissioner. I don't accept that. And I think you are reading too much into that. And that's not the proposition that's been put forward by the Australian Government. And ‑‑

COMMISSIONER RYAN: What does the word ‑ what does the word "key" mean in that sentence if it doesn't suggest that it is superior to other things?

MR HODGE: Merit is the ‑ you're right. Merit is the key consideration in relation to the selection process. But I'm not sure that we are disagreeing ‑ or perhaps we are. Is it your proposition that there is a ‑ there is some data that suggests that there is a problem in relation to employing people who come through the RecruitAbility process because they are incorrectly being excluded on the basis of the merit criterion?

I'm sorry, Commissioner, I'm just not ‑ I can see you are very agitated about this, but I'm just not sure what it is that is the point of concern and what the data is that the Commonwealth needs to look at about this.

COMMISSIONER RYAN: The point of concern is that a person with a disability might be equivalent to many others or perhaps not even the most capable person in a selection group. But one of the other considerations that apparently is an equal consideration is that their appointment would extend the diversity of the Public Service and foster inclusion. It might be that some people in the public sector misunderstand the comment "merit remains the key consideration" and basically exclude a person who is meritorious but not necessarily the person with the most experience.

And, let's face it, people with a disability don't always get the opportunity to have the most experience, so perfectly competent, capable and people who might indeed take the Public Service further than others but haven't had the chance to show it are excluded on some issue of merit because perhaps they haven't got the extensive CV that other people might have. If merit is to be the key by comparison to others, it might mean that the consideration (g) in the employment principles is not getting the same consideration when a panel meets to consider a candidate.

Is that not possible? And particularly given that your own submission makes that statement, that merit is the key, I would contend that that almost suggests that the Commonwealth believes that to be the case.

MR HODGE: I understand what you've said, Commissioner. I understand the speculation that you've engaged in. We will take it on notice and see if there's some further information that we are able to provide to you about this. I am concerned that you are reading things into the submission that I don't think are there but I don't know that it is going to assist us to debate this further.

COMMISSIONER RYAN: I will move on. In Counsel's Assisting's observations at paragraph 565, item K, she has suggested that measures for reviewing the strategies and policies include the collection of data and information about the practical impact of policies. In other words, an important principle for inclusive strategies is that they collect ‑ you collect data and evaluate things from time to time.

MR HODGE: I'm sorry to interrupt you, Commissioner, did you say paragraph 565 of Counsel Assisting's ‑‑

COMMISSIONER RYAN: Yes, I think it is. Have I got it wrong? Sorry. I might have the reference wrong. Sorry. It's paragraph ‑ yes, 565 item K on page 158.

MR HODGE: It is. I think I've just realised I was just looking at the earlier version without the amendments that have been made.

COMMISSIONER RYAN: It says as follows ‑‑

CHAIR: I think it is 566.

COMMISSIONER RYAN: Sorry, is it ‑ I have a yellow tag.

MR HODGE: 566, yes.

COMMISSIONER RYAN: It's 566. Anyway, item K. Maybe I have the wrong copy. In any event, you will agree that Counsel Assisting made the suggestion that good policies and strategies regularly collect data and evaluate the practical impact of policies.


COMMISSIONER RYAN: And on a couple of occasions ‑ I think at least twice ‑ the Commonwealth has referred to its initiative called RecruitAbility. And it is common knowledge that RecruitAbility has been operating in the Commonwealth public sector probably for a couple of decades. Certainly for at least a decade. Has it ever been evaluated? Does the Commonwealth ever intend to evaluate it to make sure that it is working in the way that it was intended to? Because it's possible it might not. Is that not something the Commonwealth should consider if they agree with Counsel Assisting that monitoring and evaluating strategies is something that is important?

MR HODGE: I don't know the answer about RecruitAbility, and we will find out, Commissioner, and let you know. But the Commonwealth certainly agrees, as you will have seen from the Disability Strategy, that monitoring the effectiveness of policies is vital and important.

COMMISSIONER RYAN: If RecruitAbility hasn't been evaluated, would it not be a good idea for the Commonwealth to consider evaluating and, ideally before the conclusion of the Royal Commission, providing the Royal Commission with the results of that evaluation?

MR HODGE: I understand what you say, Commissioner. I will find out if I can provide you with any further information about that.

COMMISSIONER RYAN: Finally, I would like to draw your attention to the involvement of people with disability in the development of policy. One of the comments made by Counsel Assisting the Royal Commission ‑ and I might even have the reference wrong, but it says that ‑ I've got paragraph 560:

"Workplace policies may also identify personnel who are responsible for the implementation, monitoring and review of policies. "

CHAIR: That's 561, I think.

COMMISSIONER RYAN: 561. And then this will be 562:

"The inclusion of people with a disability in the design of a strategy and/or policy is a key element in developing a strategy or policy that promotes inclusion. "

And, finally, in the following paragraph it says:

"It's important to ensure that the policy works for the persons who are the intended beneficiaries in the sense that the policy is person-centred and designed to work for the person with a disability. "

In the Commonwealth's response to Counsel Assisting's remarks, it refers to the fact that there had been extensive consultation about their strategy. I've just lost the paragraph. I think it might be ‑ yes, paragraph 30 of the Commonwealth it says:

"The APS Strategy was developed following extensive consultation across the public and private sector, including those with lived disability experience and consultations included. "

And it goes on. Is consultation of the nature you've described ‑ does that, in your view, satisfy the requirements that have been suggested by Counsel Assisting that policies designed to further the interests of people with disability should involve people with disability in the implementation, monitoring and review of those policies?

If that's the case, can the Commonwealth provide the Royal Commission with details of who the people with disability ‑ who are the senior officials in the APS that will be reviewing those policies, people with disability who might indeed have ‑ even within the various departments, who are the people with disabilities or will people with disabilities be involved in monitoring, the giving feedback and being able to determine whether those policies need to change or be adjusted?

MR HODGE: Thank you, Commissioner. Can I just clarify, is it paragraph 30 of the Commonwealth's submissions you are referring to?

COMMISSIONER RYAN: It is in mine on page 8.

MR HODGE: It's about the APS Strategy?

CHAIR: I think it's paragraph 30. There's a reference in paragraph 30, subparagraph D to 29 advocate groups, peak bodies and other disability‑related organisations as being the ‑ involved in consultations, and subparagraph A refers to 60 departments and agencies which include people ‑ employees with disability. I think they are the most pertinent subparagraphs.

MR HODGE: And, Commissioner, can I check I understand the information that you are seeking. You would like to know the names of the managers who are referred to in 30A and the names of the groups, peak bodies and disability-related organisations that are referred to in subparagraph D? And then that is ‑

COMMISSIONER RYAN: Well, I don't know that I need to know the names, but I think the Commission would probably like to have the detail as to how are people with disability inside the Commonwealth public sector involved in the implementation, the evaluation and the monitoring of the strategies which have been outlined? Because that's said to be a principle. I don't think ‑ I don't think extensive consultation and outsourcing this advice to someone else cuts quite the same way in which Counsel Assisting has suggested.

It's probably not enough, I'm suggesting, to simply consult other people ‑ for people without disabilities, for example, to consult other people whether we are doing it right. I think the suggestion is that there ought to be people with lived experience and disability leaders involved in monitoring, implementing and carrying out this policy, because it's a long time to wait to get an outcome if you're not getting constant input from people with disability themselves as to whether or not the policies are working, given Counsel Assisting, I think, has wisely suggested these are important principles in an effective disability strategy.

MR HODGE: Thank you, Commissioner. I understand. I think probably the easiest way to assist you will be if the Commonwealth provides more detailed information about the nature of the consultations that were referred to in Mr Woolcott's statement at paragraphs 70 to 72.

COMMISSIONER RYAN: No it won't, Mr Hodge. I want to know how people with disability ‑ see consultation is something that's already happened and done, and the policy has been completed.

MR HODGE: I'm sorry. I have misunderstood. You're not ‑ I apologise. I have misunderstood, Commissioner. You don't ‑ you are not looking for more detail about what's described at paragraph 30 of the submissions which references back to paragraphs 70 to 72 of Mr Woolcott's statement; you are looking for information about what the ongoing process is insofar as it engages with people with disability in relation to the monitoring of that ongoing process?

COMMISSIONER RYAN: Monitoring, implementing, reviewing. In every way. In fact, possibly even making decisions about it, because the suggestion by this is that, "Oh, the input of people with disability is done and dusted. It's been designed; it's now just going to be rolled out by someone else. " And yet good policy probably involves people with disability at every stage of the implementation.

MR HODGE: I think, Commissioner, can I say I understand the information you are seeking and I will ask the Commonwealth to provide that. I think, in fairness, the ‑ whilst I understand the point that you're making, you will see that paragraph 30 is responding to a direct point that was made by Counsel Assisting which was that there was no evidence that recruitment policies and practices have been co-designed or developed with the input of people with disability.

And so this was just directly addressing that point about the co-design or development of the strategy. But I understand your point, which is a valid one and an important one, which is what happens with the ongoing management, monitoring, implementation of the policy, and I will seek some further information about that.

COMMISSIONER RYAN: Then, finally, in paragraph 85 of your response, you've referred to ‑ you've dealt with the issue of employment targets. And you've said that:

"A more prevalent theme in the feedback was the importance of creating a genuine cultural change within organisations as a way to increase employment outcomes for people with disability, rather than targets. "

May we rightly assume, then, that on the basis of this undefined feedback, that the Commonwealth does not support the implementation of targets. Has the Commonwealth not considered I think the very good submissions given to us in evidence by people such as Graeme Innes, who suggested if you can't see it, you can't do it, and gave a very cogent argument as to why targets were commendable? Do I take it from this that the Commonwealth doesn't support targets because it has had some feedback which says it's more important to promote culture? Is it not reasonable to think that you could do both of those things at the same time?

MR HODGE: Thank you, Commissioner. This is dealing with the development of the Employ My Ability Strategy which is part of the disability ‑ or the National Disability Strategy that was released at the end of the last year. So the particular point that it is addressing and explaining is that the Commonwealth has, as part of all of the parties to the Disability Strategy, considered the issue of targets or quotas, and it's just identifying what the stakeholder feedback was, which has led to the Strategy as it is.

Insofar as the Commission is considering something else in relation to targets or quotas, can I just identify a complexity to that and why it would need ‑ the Commonwealth would need to take time to further consider any particular proposal. Talking about ‑ as you would appreciate, talking about targets or quotas at a general level raises ‑ might raise general questions, but the specifics of it are, are you dealing with the Australian Public Service, which the Commonwealth, I think in its submission, has simply said we need to consider that issue specific to the Public Service in further detail?

Or are you raising it more generally in relation to private enterprise or other parts of government and what exactly does that mean? So I think if there's a specific proposal as to what a target or quota or an enforceable target or quota would mean, then the Commonwealth will be able to consider what its position is. I don't think I can give you a general statement of the Commonwealth in relation to targets or quotas. But I will just check that that's the case.

COMMISSIONER RYAN: Except that the Commonwealth has given us a general statement about targets and quotas and suggests that it has feedback which says other things are more important.

MR HODGE: I mean, again, I don't know whether we ‑ whether it's ‑ I don't think we are going to get a lot out of debating this. That's not what the submission says.

COMMISSIONER RYAN: Well, I suppose the question I'm asking you is, does the Commonwealth exclude that as a possibility that the Royal Commission should recommend? Is the Commonwealth Government opposed to a strategy that might involve specific targets?

MR HODGE: It's just not possible for us to comment on a generalised proposition about targets or quotas, particularly bearing in mind the APS does have a target. And the Commonwealth does have a target. So the question is not about having a target. The question is ultimately going to be about whether or not a target is enforceable, bearing in mind that the same evidence that you're referring to, as I recall it, rejected the use of the term "quotas" in preference for targets and then talked about enforceability mechanisms or potential enforceability mechanisms in relation to targets.

So the issue is ultimately going to be what is the nature of the enforceability mechanism, and what the Commonwealth has said is, it would need to consider that further.

COMMISSIONER RYAN: Thanks, Mr Hodge. May I ask a question to New South Wales.

CHAIR: Actually, can I suggest if we ask Commissioner Galbally. We might deal with the Commonwealth first and then come back to you.

COMMISSIONER: Come back to New South Wales.

CHAIR: Yes. Commissioner Galbally, do you have any questions of Mr Hodge on behalf of the Australian Government?

COMMISSIONER GALBALLY: Thank you. Just to follow up Commissioner Ryan's questions, I'm interested in the question of enforceability. So accountability, consequences and enforceability both for the employment of people with disabilities, the retention and the promotion of them so there's a career path. And I ‑ is it ‑ in a decentralised system where the departments have their own approach ‑ like, is it the Secretary? Is it in their KPIs that there has to be progress in this area? I mean, who is held to account if it's not achieved? And what are the consequences for them? And at what level of seniority?

MR HODGE: Can I make a general observation about that, and then I will, though, I think otherwise take it on notice and we will see if there is some further information we can provide to you about it. My recollection of the evidence that Mr Woolcott gave was that it wasn't ‑ I don't think he referred to there being KPIs in respect of senior managers in relation to employment targets. My recollection is that the evidence that he gave was that it is an APS‑wide target that's been set.

But it's then the responsibility of each of the departments to achieve that target, and then there's also ‑ I thought that he had referred to interdepartmental discussions about the achieving of those targets. But I will see while we are speaking whether anybody can ‑ on my team can identify the relevant part of the evidence so I can at least give you the paragraph references. But, again, I understand your question. I will see if there's any further information we can provide about it.

I don't recall that there was any evidence that the type of enforcement mechanism where you would have KPIs set by reference to achieving the target is something that's included at present.

COMMISSIONER GALBALLY: My question went a bit beyond targets, to accountability for not only employment but retention and career path promotion. So I would like to know who is to be held to account and how. Thank you.

MR HODGE: Thank you.

CHAIR: Commissioner Galbally, do you have any further questions of Mr Hodge?

COMMISSIONER GALBALLY: No, that's it. Thank you.

CHAIR: Yes. Thank you very much. Mr Hodge, we will put up section 10A(2) on screen, if that's possible. This goes to some of the issues that Commissioner Ryan raised with you. Is it possible to expand that? That's not the whole of the section ‑ we can do that. Thank you. And then there are subsections on the next page, so I don't know whether we can bring those up. This, I take it, represents the law as to how the Australian Public Service must address the question of merit. Is that right?

MR HODGE: That's my understanding, Commissioner.

CHAIR: Sorry?

MR HODGE: That's my understanding, Chair.

CHAIR: Yes. I think the issue that Commissioner Ryan has raised, whether it be dealt with in the specific context of subparagraph (g) of section 10A(1) which says that the Public Service principles recognise the diversity of the Australian community and fosters diversity in the workplace, is it not necessary to amend section 10A(2), at the very least, to incorporate the principles that are fundamental to the employment of people with disability, such as and in particular "reasonable adjustments" and so forth?

If someone were to look at section 10A(2) as stating the law, it would be very difficult, wouldn't it, for them to appreciate just how these various principles interact. So my question to you is, do you on behalf of the Commonwealth agree that this is an imperfect implementation of principles that should be adopted and which the Public Service purports to adopt, or is it satisfactory in its present form?

MR HODGE: I won't be able to respond to that immediately, Chair. I think the Commonwealth will need to consider that further. But can I clarify the point that you're making, which is that it might be the case that somebody reading subsection (2) would understand that the way in which you would evaluate merit would be as if reasonable adjustments were either not made or not possible and, therefore, that would be disadvantageous to a person with disability in relation to a merit assessment? Or does it go even wider than that?

CHAIR: It certainly covers that. One of the theories in a democratic system of government and of society is that people ‑ ordinary people, citizens, ought to be able to understand rights and obligations by looking at legislation. Now, we all know that that is an aspiration that is easier to state than attain. But that is one of the points. It's very difficult to see how somebody without an intimate knowledge of the interaction between various legal principles could read this as meaning anything other than you determine merit on the ability of the person as he, she or they turn up to do the job without all of the other aspects that we now know so much about. That's the point, I think.

MR HODGE: Yes. I understand the point that you're making, Chair. I think we ‑ the Commonwealth would need to consider that further. But I ‑ broadly, what you're suggesting is that subsection (2) might be amended to make clear that, in considering merit, merit necessarily needs to be considered in light of the possibility of making reasonable adjustments and after the making of reasonable adjustments.

CHAIR: Yes. And that may not ‑ following Commissioner Ryan's question, that may not be the only issue, because, with respect, he's correct when he says that it's not altogether clear how one meshes 10A(1)(g) on recognising diversity with what purports to be an exhaustive definition of merit. So these things have symbolic significance. It may well be that the Australian Public Service does, in fact, avoid the problem by applying principles that may or may not be consistent with a reading of the legislation.

But I would have thought one of the tasks we would have to perform, at the very least, is to ensure that the governing law represents exactly what should be happening in the Australian Public Service, and my point is I'm not at all sure that section 10A(2) does that as presently drafted.

MR HODGE: Yes, I understand the point, Commissioner. I think that's something that the Commonwealth will need to consider further and (indistinct) make a further ‑‑

CHAIR: Yes, I didn't expect you, Mr Hodge, to provide a definitive answer on the spot, but I just wanted to flag that that seems to me to be an issue well worth considering.

MR HODGE: Thank you, Chair.

CHAIR: Can I ask you another question, please. And this ‑ you may not be able to add anything to what was canvassed at the earlier hearing. But at paragraph 26 of the Australian Government's submissions, there is a reference to the 7 per cent target. Are you able to assist any further as to how that 7 per cent was arrived at other than that it was a government decision? And, therefore, presumably imposed upon the Australian Public Service?

MR HODGE: No, I can't assist further, I'm sorry.

CHAIR: So we can't get any information further from the Australian Government as to the rationale for 7 per cent as opposed to 8. 4 per cent or 13. 9 per cent?

MR HODGE: I'm told not right now. We can make some further inquiries as to whether there is any ‑ I'm sorry, Chair, you said why the 7 per cent instead of ‑ and I think ‑‑

CHAIR: I am just giving those as illustrations. That's all.

MR HODGE: Yes, I understand.

CHAIR: There is no magic to 13. 9 per cent or whatever it was that I said, which has gone out of my mind immediately.

MR HODGE: No, I understand the question.

CHAIR: The next question goes to the Affirmative Measures ‑ Disability program that is referred to at paragraph 36. And this may just reflect my own lack of detailed understanding, but ‑ not necessarily now, but could we have some more information about how that actually works in practice? And in particular, to take up another point, I think, that Commissioner Ryan made, is there any evaluation of that procedure or system that is available or is one planned? If you wouldn't mind taking that on notice and giving us whatever information can be available.

MR HODGE: Yes. Thank you, Chair.

CHAIR: Yes. Thank you. I think that Commissioner Ryan covered another question I was going to ask about enforceable targets. So I don't think that I need to pursue that. So thank you very much for those answers. I will come back now to Commissioner Ryan to ask whether he has any questions of any other represented party.

COMMISSIONER RYAN: I would like to ask a question of the counsel representing New South Wales, if I might. Ms Furness, in paragraph 26 of the New South Wales response, it refers to the fact that the Premier's priority target for an increase in disability employment in the New South Wales Public Sector is 5. 6 per cent by 2025. And since we asked the Commonwealth what the basis of the rationale of their target was, might I ask New South Wales as to why they have chosen the figure 5. 6 per cent and can New South Wales provide us with any detail as to whether or not they are able to achieve in target or how they are going in regard to that target, since there's only three years away before the target is apparently due to be achieved.

MS FURNESS:  Certainly. We will make further inquiries and provide an answer to you at a later stage.

COMMISSIONER RYAN: And in regard to paragraph 28 of the New South Wales submission, it says that:

"Each government agency has committed to implementing a range of initiatives which will focus on ‑"

And item A says:

"Inviting people with disability to apply for more roles then helping them to stay in their jobs longer by giving them the support and tools they need to do their best work. "

Could the New South Wales Government provide some more detail in particular to how people with disability are being invited to apply for particular roles. I wasn't ‑ does that mean that the NSW Government has positions which are specifically only people with disability are invited to employ? Or are there special initiatives made to make sure that people with disability know about particular jobs? In what way ‑ what does the word "invite people with disability" means? Could New South Wales provide us with more detail about what that means and perhaps they could also provide some detail about what some of the government agencies are doing to help people stay in their jobs longer giving them more support?

MS FURNESS:  Certainly.

COMMISSIONER RYAN: Thank you, Mr Chair.

CHAIR: Thank you. Commissioner Galbally, do you have any questions?

COMMISSIONER GALBALLY: Yes, my question is the same about what I asked the Commonwealth about the consequences of not meeting the target 5. 6 per cent, as an example, but the consequences of the whole recruitment, retention and promotion, who is held to account. How are they held to account. And what happens to them if they don't meet what I would have called ‑ you know, if there's not KPIs in their assessment? And does it go to the Secretary of departments? It going to end up being at that level? Thank you.

MS FURNESS:  Thank you, Commissioner. We will make inquiries.


CHAIR: Commissioner Ryan has anticipated questions I was going to ask. So I don't need to repeat them. But perhaps, Ms Furness, the further information relating to paragraph 28 might extend to how the New South Wales Government or Public Service proposes to achieve the objectives that are set out not only in A, but also B and C as subparagraphs of 28. Paragraph 28 really sets out objectives and doesn't address how they are going to be achieved.

It does lead me, Ms Furness, to make a comment, and feel free to respond to it. The comment is that the responses of New South Wales ‑ and you're not alone in this ‑ tend to be limited to are we going to make adverse findings and are we going to say something that might be adverse to the interests of New South Wales, rather than volunteering material as part of the process of, if you like, collaboration so that we can do our job better and you can provide us with more information without us actually having to extract it by sending notices.

I make that observation, and I stress it's not just New South Wales, but when you are dealing in a Royal Commission that's dealing not just with making specific inquiries into allegations of abuse or neglect against particular people or particular organisations, we need all the assistance we can get in order to produce a program of reforms that are capable of bringing about the transformational change of which we have spoken earlier.

So I put that proposition to you as something that perhaps New South Wales might take into account. You have been present at virtually all of our hearings, and we appreciate that. It is a great courtesy to us. But there are ways in which the contributions could go beyond those that have been made up to date, if I may respectfully suggest that. Feel free to comment on that if you wish.

MS FURNESS:  It's certainly the case, Chair, and I say so respectfully, that the State of New South Wales has provided copious information on various topics throughout the life of the Royal Commission and responded in detail in those case studies in which New South Wales have played a part and has provided information as sought. In relation to Public hearing 19, I note firstly that we did not seek or receive leave to appear in Public hearing 9, so our involvement is limited to this Public hearing.

And certainly in our submission we make it clear that we wish to assist the Royal Commission in the development of recommendations and any specific recommendations which the Royal Commission wished to discuss or consult with the State on. We would be very happy to participate in that process.

CHAIR: Very good. Thank you. Commissioner Ryan, do you have any questions of any other party represented today?

COMMISSIONER RYAN: I don't. But I did want to go with one request for some more information from the Commonwealth, if I might. Among the things suggested in evidence to the Royal Commission was how procurement policies might have an impact on fostering employment external to the Commonwealth, external to government. Could the government ‑ could we be provided with any detail of procurement policies that might exist now that foster the employment of people with disability, or does the Commonwealth have any intention to do that?

MR HODGE: We will provide whatever information we can about that, Commissioner.

CHAIR: Thank you. Commissioner Galbally, do you have any other questions about any other represented party today?


CHAIR: Thank you. Not quite. You're done. Okay. Do we have a representative from Lendlease here? They were represented this morning. Are you still here?

MS THEW: Yes, may it please the Commission. Yes, apologies. It took us a moment to get ourselves off mute. Yes. Thew.

CHAIR: Thank you very much. I'm referring to the evidence given by Ms Stewart on behalf of Lendlease. At transcript page 292, which is on the third day of the hearing, Ms Stewart told us that Lendlease ‑ I hope I've got the right page ‑ did not have a particular target. And this goes to the issue that we've just been talking about with the Commonwealth and with New South Wales. Do you have any more information as to whether Lendlease has taken on board the suggestion that maybe consideration could be given to a target? Has there been any movement? And if you are not in a position to answer that, could you please let us have an answer on notice to that?

MS THEW: May it please, yes, we can provide an answer on notice to any particular questions. We have filed no written submissions, but we can.

CHAIR: I'm not saying you have to give it on notice. If you wish to give it now, feel entirely free to do so. But if you need to take it on notice, please do. At transcript 296, there was an exchange in which Ms Stewart said that Lendlease doesn't actually record the disability status of a worker involved in an incident or near miss, and accepted that Lendlease's view is that disability would never be relevant factor. Again, I would be interested in any further information as to whether Lendlease has given consideration to revising or reviewing that position.

MS THEW: Lendlease will need to take that on notice.

CHAIR: Certainly. And at transcript page 303, Ms Stewart agreed with the proposition that Lendlease sees no difference between the concept of a reasonable adjustment under disability discrimination and providing suitable employment under workers compensation legislation. If I may say so, that's not self‑evidently correct. And I wonder whether Lendlease has given some further consideration to that situation and, again, if so, we would appreciate some information as to what has been done in the meantime on that issue.

MS THEW: If I could take that on notice, thank you very much.

CHAIR: Yes. No, thank you. Do we have a representative from RMIT still with us?

MR CARR: Yes, Chair.

CHAIR: Mr Carr, yes. Thank you. Just give me one moment. At page 204 of the transcript, Ms Marshall, who was giving evidence on behalf of RMIT, was asked the question as to whether she agreed that:

"The reasonableness of an adjustment is not the test either under the Disability Discrimination Act or the Equal Opportunity Act in Victoria. "

Ms Marshall seemed to agree with that proposition. Again, that is not self‑evidently correct. Ms Marshall went on to explain that:

"No request for adjustment had been refused in the last two years. "

But my question is whether the RMIT has given further consideration to Ms Marshall's answer and to the substantive issue as to whether a test of reasonableness is, in fact, aligned with the requirements of the Disability Discrimination Act and the Equal Opportunity Act in Victoria. And perhaps you might take that on notice and let us know whether there has been any reconsideration of that issue.

And, similarly, Ms Marshall at transcript 205 was asked about whether would be appropriate to amend a particular paragraph in the guideline or whatever document is called, and she said she will take it on notice to be looked at. I will be grateful if you could bring us up to date and perhaps take on notice as well what has happened about her agreement that paragraph 10 should be adjusted to reflect the course of the discussion that is reflected in the transcript.

MR CARR: Yes, Chair. It's my understanding that the policy has been amended as Ms Marshall indicated it might be. However, I will take each of those questions on notice, and I will confirm that understanding of mine together with providing a complete ‑

CHAIR: Thank you very much, Mr Carr. I will just check whether there's any ‑ whether either Commissioner Ryan or Commissioner Galbally have any questions to ask of Ms Eastman.

COMMISSIONER RYAN: Nothing further.

COMMISSIONER GALBALLY: Nothing further, thank you.

CHAIR: In that case, I think we have concluded. I will just, out of an abundance of caution, ask if any of the counsel or representatives to whom questions have been directed want to say anything in addition to what has already been said?

MR HODGE: Not for the Commonwealth, Chair.

CHAIR: If not, yes, Ms Eastman.

MS EASTMAN: Thank you, Chair. Can I just raise two short points which I'm happy to have further discussions with the representatives. Chair, you asked my learned friend Mr Hodge about the setting of the 7 per cent. Mr Woolcott did give evidence about this at the hearing. His evidence is at page 97 of the transcript where he said that:

"The figure was identified during the course of an election campaign. "

CHAIR: Yes, I did remember that. I just wanted to know whether there was any further information available as to the rationale.

MS EASTMAN: And then in relation to, Chair, your questions to Lendlease about the reasonable adjustments and workers compensation issue s, we did touch upon this in the Counsel Assisting submissions at paragraph 489, if that assists Ms Thew, in terms of some of the issues that might be addressed on any response.

CHAIR: Thank you.

MS EASTMAN: Can I say we are ‑ at the Royal Commission, the Counsel Assisting team and the OSA team ‑ happy to liaise with any of the parties in relation to any of the further inquiries. But, Chair, could we suggest you make a direction that anyone who has taken questions on notice or wishes the opportunity to provide anything arising from today's oral submissions do so in 28 days by close of business on 7 April?


MS EASTMAN: And if anyone has any difficulties with meeting that timetable, they could let the Counsel Assisting or OSA ‑‑

CHAIR: That's not Easter, by any chance?

MS EASTMAN: No, I think Easter is later, isn't it?

CHAIR: That's Good Friday?


CHAIR: No? You nodded and then you shook your head.

MS EASTMAN: No, Easter is later.

CHAIR: Okay. Is that the only direction you seek?


CHAIR: Yes. All right. Unless there's an objection to that I will make that direction, namely, that any further information that is to be provided by any of the parties appearing today or questions that have been taken on notice, that is to be done within 28 days, and that is by 7 April 2022.

All right. Well, I thank everybody who has participated in this hearing. I thank the representatives of the parties, and I renew the thanks that I gave at the conclusion of the five‑day hearing to all witnesses who appeared. We are very grateful for the assistance that has been provided to the Royal Commission. It is evident from the discussion that has been held today that there are extraordinarily important issues that need to be addressed.

They are not easy. They involve considerable complexity and the gathering of a very large amount of information and the exercise of a mature and careful judgment about them. And that's exactly what the Royal Commission will be doing, and we will in our Final Report include, of course, the recommendations that are the outcome of the hearings that have been dealing with this issue of participation in the labour force and economic integration of people with disability. So thank you again, and we will now adjourn. And the next hearing of the Commission will be on ‑

MS EASTMAN: Will be a combination of both in Hobart and also in Brisbane commencing on 28 March. That is the continuation of Public hearing 17 concerning the experience of women and girls with disability with respect to sexual, family and domestic violence.

CHAIR: Yes. Thank you, Ms Eastman. We will adjourn, then, until 28 March. Thank you.