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Public hearing 23 - Preventing and responding to violence, abuse, neglect and exploitation in disability services (a case study), Sydney - Day 5

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CHAIR:  Good morning everybody, both in the hearing room and whoever can tear themselves away from elections in order to follow us on the live stream. This is the final day of Public hearing 23 of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. And as you know, we have been looking in particular at Afford's operations. 

We commence by acknowledging the Gadigal People of the Eora Nation, the traditional custodians of the land upon which this hearing is taking place, and upon which the Commissioners are participating in the hearing. We pay our respects to their Elders, past, present and emerging, and we also pay our respects to all First Nations people who may be in the hearing room or who are following the proceedings on the live stream.

CHAIR:  Yes, Mr Griffin. 



MR GRIFFIN:  Mr Allen, I cheekily gave you some homework to do last night by way of asking you whether you would read hearing bundle E, tabs 32 to 56. Have you been able to do that?

MR ALLEN:  Yes, I did. 

MR GRIFFIN:  That tranche of evidence relates to CEO Reports from Steven Herald to the Board during his tenure as the CEO, and I think in total there are some 25 reports running from January 2019 to March 2021; is that correct? 

MR ALLEN:  Yes. 

MR GRIFFIN:  What were your impressions of a general nature when you had a chance to revisit those reports in terms of were they adequate, with the benefit of hindsight, for the role the board had to play? 

MR ALLEN:  I think they were reasonably adequate, but there were certainly, as you'd indicated in your earlier question yesterday, an over focus on financial matters. 

MR GRIFFIN:  Why do you think that was the case? 

MR ALLEN:  The then CEO had a very strong view that financial performance also reflected other performance more broadly across the organisation. 

MR GRIFFIN:  Were you concerned about the tone of some of those reports, and the personalisation of the reporting by Mr Herald? 

MR ALLEN:  Yes, and that was a matter that I did take up with the then CEO on a number of occasions. 

MR GRIFFIN:  What did you identify as the issue you took up with him? 

MR ALLEN:  The nature of the   some of the comments were at times personal, at times, I felt, inappropriate and not required in such a CEO's Board report. 

MR GRIFFIN:  You accept, I take it, Mr Allen, that he was effectively reporting on behalf of the organisation to the Board? 

MR ALLEN:  Yes. 

MR GRIFFIN:  And yet on numerous occasions in those reports they seem somewhat self centred in the way information is expressed and commentary that goes with it? 

MR ALLEN:  Yes. 

MR GRIFFIN:  Chair, I will deal with that issue in written submissions in more detail but don't intend to take Commissioners through those reports. 

Can I ask you to contrast those reports with a report from your current CEO. What differences, if any, have you noticed between Mr Herald's reports and the reports of Ms Toohey to the Board? 

MR ALLEN:  Ms Toohey's reports are far more effective in terms of informing the Board on a range of matters and are much more client   more directly client focused. 

MR GRIFFIN:  Can I ask if hearing bundle E, tab 51 be brought up, which is Steven Herald's Report of October 2020 to the Board?

CHAIR:  Do we need to give a reference number for that? 

MR GRIFFIN:  It's AFF.0005.0001.1990. It's now on the screen. Can you see, Mr Allen, from that Report, that it starts on page 1, referring to a very strong first quarter? 

MR ALLEN:  Yes. 

MR GRIFFIN:  And I quote:

"The result for the month is once again fabulous."

MR ALLEN:  Yes. 

MR GRIFFIN:  Unusual language in a CEO Report, isn't it? 

MR ALLEN:  Yes. 

MR GRIFFIN:  Goes on to say:

"Total profit for the quarter is off the charts due to the net benefit of JobKeeper over the quarter of 6.9 million."

Can you see that? 

MR ALLEN:  Yes, I can. 

MR GRIFFIN:  How much JobKeeper assistance did Afford receive during the pandemic? 

MR ALLEN:  My recollection, it was in the vicinity of $6 million. I can't recall more specifically but we can certainly take that as a question on notice. 

MR GRIFFIN:  Thank you.

CHAIR:  I think the 2020/2021 Financial Report indicates $10 million during that year. 

MR ALLEN:  Thank you, Chair. By your legal representatives, will you come back to the Commission with details of what payments were received during that period of time? 

MR ALLEN:  Absolutely. 

MR GRIFFIN:  There's then a section of his Report on page 3 entitled Refocussing on The Afford Way, with a bullet point list with emphasis on lack of company events, etcetera. There doesn't seem to be any reference or mention to clients? 

MR ALLEN:  No, there's not. 

MR GRIFFIN:  Includes a final point:

"I have been off the boil this year so my performance has been mediocre."

Do you know what Mr Herald is referring to when he made that surprising admission? 

MR ALLEN:  Mr Herald had some difficult family matters during that period. 

MR GRIFFIN:  And then on page 7 of that Report, when referring to training, he says, and I quote:

"We've always led the sector by a long way but now we are quite simply in another universe."

MR ALLEN:  Yes. 

MR GRIFFIN:  Is that narcissism gone mad? 

MR ALLEN:  I think that's the conclusion many people would reach after reading that, yes. 

MR GRIFFIN:  Would you reach that conclusion, having re read it? 

MR ALLEN:  I reached that conclusion at the time I read it initially. 

MR GRIFFIN:  Why was that expression I've just quoted inappropriate in your mind from a CEO? 

MR ALLEN:  Because essentially it was about the CEO and not the organisation, nor its clients. 

MR GRIFFIN:  And it tells the Board nothing about the qualitative basis for asserting where Afford was vis à vis other organisations in terms of delivering training. That's correct, isn't it? 

MR ALLEN:  That's correct, yes. 

MR GRIFFIN:  It's a boast? 

MR ALLEN:  Yes. 

MR GRIFFIN:  And in those sense, how could that assist the Board in assessing how Afford was performing in respect to its training? 

MR ALLEN:  It doesn't. 

MR GRIFFIN:  Was that matter raised with Mr Herald at any point, the fact that there appeared to be, on my assessment, a relative paucity of information about the substance of what training was being provided and at what level it was achieving its ends? 

MR ALLEN:  Yes, it was raised with the then CEO, but as I mentioned in my evidence yesterday, there was also a volume 2 set of Board papers that provided much more detailed information on training and development activities, the number of hours of training, the range of programs, etcetera, and that was available to the Board. 

MR GRIFFIN:  Can I invite you once again as an organisation to identify that material and provide it to the Commission if it hasn't already been provided. 

MR ALLEN:  I believe it has been provided but we will check. Thank you. 

MR GRIFFIN:  In that case, perhaps if your legal representatives can identify particular documents that they say fit the description you've just described? 

MR ALLEN:  Yes. 

MR GRIFFIN:  Can I now have the Report of Joanne Toohey to the Board of December 2021 which appears at hearing bundle E, tab 66 brought up. The reference is AFF.0005.0001.2060. Just take a moment to look at that, if you could, Mr Allen. 

MR ALLEN:  I'm just waiting for the larger version. 

MR GRIFFIN:  Thank you. 

MR ALLEN:  Yes. 

MR GRIFFIN:  That starts with a COVID 19 response. It then deals with the question of vaccinations and the vaccination policy, and then finance by referring to the Finance Report. Can you see that? 

MR ALLEN:  Yes. 

MR GRIFFIN:  And on page 2 it continues with matters such as Merna Aprem, the NDIS Commission reportable incidents, the death of a resident in Queensland, page 3, and also on page 3 the ANSVAR risk audit. Mr Allen, without going into any details, can I assume that the Board would regard that as a much more helpful report in terms of its content and scope? 

MR ALLEN:  Yes. 

MR GRIFFIN:  I want to ask you some questions, if I can, about a document known as 'The Afford Way'. Are you familiar with that document? 


CHAIR:  Mr Griffin, have you finished taking Mr Allen through the papers presented by the CEO? 


CHAIR:  I wonder if I just might ask a question. It may be that other Commissioners have got a question also to ask about it. 

If you could go, or if we could bring up the Report of April 2019 which is E36   the reference is AFF.0005.0001.1843. Mr Allen, do you see the top five. The first is the tragedy at Woodbine. 

MR ALLEN:  Yes. 

CHAIR:  Which is the reference to the death of the participant about which we have heard. There is one paragraph that reports that there was a tragedy, and advises that:

"Our insurance brokers have been notified."

And then it says:

"Counselling services have been offered to the client's family, staff and other clients. Counsellors visited our site and quite a few accessed support via phone."

What was the response of the Board to this information conveyed in this way? 

MR ALLEN:  The Board just obviously discussed the situation and the dreadful tragedy that had occurred.  There was other email advice provided from the then CEO to the Board at different times from the day that the tragedy occurred.

CHAIR:  You consider those two paragraphs, to which I have referred, as an appropriate way for the CEO to have informed the Board about the tragedy that had occurred? 

MR ALLEN:  The Board had already been informed about the tragedy and the CEO's comments are a summary of some of the activities and responses that had been put in place. Do I find it particularly sensitive wording of such a tragic matter? No, I don't.

CHAIR:  No, indeed. Now if we could please have from P37, tab 37, the document is AFF.0005.0001.1850. This is the CEO's eport for July 2019. You see that apart from matters for approval, the second item is Significant Issues, top five, next heading, "All in all, a very good year". Do we see in there, in the very good year, any reference to the death of a participant? 

MR ALLEN:  No, we don't.

CHAIR:  Very astonishing thing to say, isn't it, for a CEO in the light of a tragedy of the kind that had been reported at the very   at the previous meeting? 

MR ALLEN:  Yes, it is, Chair.

CHAIR:  Was that pointed out at the time by the Board or any member thereof? 

MR ALLEN:  I can't recall specific comments of any of the Board members at the time in relation to this particular matter, but certainly there were discussions with the CEO about the tone and nature of some of his reporting.

CHAIR:  Yes. I see. I might just pause and ask if either of the Commissioners have any questions about this series of documents as well. Alright. Thank you. Yes, Mr Griffin. 

MR GRIFFIN:  Mr Allen, I was asking you about a document called 'The Afford Way'. 

MR ALLEN:  Yes. 

MR GRIFFIN:  If one looks at the Annual Report of Afford of 2018/19 which is AFF.0001.0001.0652, tab 126 in hearing bundle E   can we just bring up page 72 of that Report, which is 0652 in the document.  If one looks at the second last paragraph on that page, you'll see it says:

"'The Afford Way' is a mindset. It is unique to Afford and one that nurtures strong teams and tribes throughout the 2,000 strong permanent, part time, casual and supported employees that make up our community."

Were you, whilst a member of the Board, involved in the development of 'The Afford Way'? 

MR ALLEN:  The Board wasn't involved in the development of 'The Afford Way'. It was certainly a matter of some of discussion between the Board and the CEO, and the Board directed the CEO to rewrite that document on a number of occasions. 

MR GRIFFIN:  Let me take you through what I understand the history to be. Can we have hearing bundle E, tab 32 at page 1795 which is the CEO Report to the Board for January 2019. That document refers to various problems with staff and to, and I quote, "a culture" unquote, document. Did you understand that to be a first draft of 'The Afford Way' in January 2019, or did it exist prior to that? 

MR ALLEN:  I believe that was the first iteration of that document, yes. 

MR GRIFFIN:  And this suggests that this culture document, as it's described, emanated from the Strategic Plan of 2018 to 2021. Is that your recollection? 

MR ALLEN:  Yes, culture was a very important part of the discussions at that Strategic Planning session. 

MR GRIFFIN:  And so there's every reason to believe that it may have been associated with following through the Strategic Plan? 

MR ALLEN:  Yes. 

MR GRIFFIN:  There was then a Strategic Planning weekend in March 2019 on the Gold Coast. You were listed as one of the speakers at that planning weekend. Do you recall that? 

MR ALLEN:  Yes. 

MR GRIFFIN:  And there appears to be a draft of the culture document at hearing bundle E, tab 86, which has a whole section dealing with the question of culture. I won't go to that, but that seems to be a further iteration of this document. Perhaps I might bring up page 3211, hearing bundle E, tab 86. The document reference is AFF.011.011.3188. And at 3211   perhaps to the next page. You'll see the heading, Culture is Key. Just take a moment, if you could, to read that document. 

MR ALLEN:  Yes. 

MR GRIFFIN:  Would you agree that that appears to be written in terms that would cause concerns to the Board? Are you quite content with that wording? 

MR ALLEN:  There's a strong focus on our clients and client outcomes, so yes, I'm reasonably content with that wording. 

MR GRIFFIN:  And then later in a CEO Report to the Board for July 2019, which is hearing bundle E, tab 37, it says at 1851   and whilst that's coming up, just let me read the extract that I want to take you to. It says:

"It is very important that senior execs live the quote unquote 'Afford Way', as if we don't   a big gap between the management and the frontline emerges. When this happens gossip starts to become rampant, disciplines slip, staff turnover increases and silly incidents increase. Unfortunately, this has been also seen some underrecording of incidents as "sweeping under the carpet" and protecting mates starts to occur. It will take six months to truly get back to where we were, and while we are still on a par with our higher performance competitors like House With No Steps, Sunnyfield, Sylvanvale, DSA, etcetera, I am not happy."

Can you recall the Board considering that CEO Report? 

MR ALLEN:  Yes. 

MR GRIFFIN:  Do you agree with the sentiment expressed by Mr Herald that it's important that senior executives live the Afford Way? 

MR ALLEN:  I certainly agree with the view that all staff across the organisation regardless of their   their position or their level within the organisation should subscribe to the same positive culture. 

MR GRIFFIN:  And when he says:

"It will take six months to truly get back to where we were."

What had happened? What put the organisation in a place that Mr Herald was not happy with? 

MR ALLEN:  I can't recall any specific incidents that would have led to him expressing that view, but just a general view from him, as he records. 

MR GRIFFIN:  Then in a CEO Report to the Board for September 2019 at hearing bundle E, tab 39, Mr Herald makes repeated references to 'The Afford Way' and seems to blame the former CFO for problems and also makes reference to his own integrity. Can I have up on the screen AFF.0005.0001.1865.

CHAIR:  I think Mr Allen has read it.

MR GRIFFIN:  I'm sorry. 

CHAIR:  Is that right? 

MR GRIFFIN:  Did you have any concerns about the reporting contained in that Report? 

MR ALLEN:  Yes. 

MR GRIFFIN:  What were those concerns? 

MR ALLEN:  The concerns were what appeared to be at that time a relatively consistent theme of being self congratulatory in the nature of the then CEO's comments, but also concerns about his relationship with the then CFO and disparaging comments about other providers that I didn't consider were appropriate.

CHAIR:  These are comments indicative of a dysfunctional organisation, aren't they? 

MR ALLEN:  I   no, Chair, I wouldn't agree with that.

CHAIR:  You wouldn't agree? 

MR ALLEN:  Not a dysfunctional organisation, but certainly some dysfunctional elements in the C   then CEO's behaviour. 

CHAIR:  This is a CEO who is accusing people within his organisation of effectively undermining him and threatening to get   "There's a cancer that sent our Allied Health into loss. They must be removed or killed."

Is this the language of an organisation that is functioning reasonably well? 

MR ALLEN:  It's the language of the CEO.

CHAIR:  Precisely. Isn't it part of the function of the Board to be sceptical about what the Board is told by management, and at least to make inquiries when put on notice that things are not going well? 


CHAIR:  Did that happen on this occasion in August 2019 in the light of the Report? 

MR ALLEN:  Yes, it did.

CHAIR:  How? 

MR ALLEN:  The Board asked for further information in regard to Allied Health services and I understand the then Chair took up the matter. The then CEO's interpersonal relationships with the then CFO.

CHAIR:  Was that interaction recorded in a Report subsequently to the Board? 

MR ALLEN:  Not that I recall, Chair. 

CHAIR:  No. Yes, Mr Griffin, sorry to interrupt yet again. 

MR GRIFFIN:  In the CEO's report of August 2019 which is AFF.0005.0001.1868   it needn't come up but there's a heading at point 5, Integrity and Respect, and Mr Herald discusses those issues and he says in part:

"In my career there have always been an absolute given, Steven Herald has impeccable integrity."

Is it just me or do you become concerned when people speak of themselves in the third person? 

MR ALLEN:  I don't think it's just you, Mr Griffin, no. 

MR GRIFFIN:  Does that ring alarm bells for you? 

MR ALLEN:  It certainly caused me concern, yes. 

MR GRIFFIN:  Are you able to recollect, by Mr Herald, the need to put language of that nature in his Report to the Board?

MR ALLEN:  At that time, and I believe this is what led to the comments, the then Chair took up the issue of credit card reconciliations with the then CEO. 

MR GRIFFIN:  Is that a polite way of saying there was concern about his spending on the credit card? 

MR ALLEN:  Yes, there was concern about the transparency and the acquittal of credit cards in a timely way. 

MR GRIFFIN:  Was there concern about whether there was expenditure that had been properly authorised? 

MR ALLEN:  The concern was that the proper authorisation wasn't more transparent. 

MR GRIFFIN:  I think you alluded a few moments ago to concerns about his relationship with other staff members, particularly senior executive members; is that correct? 

MR ALLEN:  Yes. 

MR GRIFFIN:  What was the nature of your or the Board's concerns about Mr Herald's relationship with senior colleagues? 

MR ALLEN:  The nature of the concern was that the organisation had had a number of CFOs over a relatively short period, and the Board was concerned to better understand what was causing that situation. It wasn't a general concern at that time with   in relationships with other executives which seemed to be, from the Board's observation, generally good. 

MR GRIFFIN:  Did the Board generally, or the then Chair speak to the other people involved on a one to one basis? 

MR ALLEN:  I believe the then Chair did, yes. 

MR GRIFFIN:  And do you know what was the result of those discussions? 

MR ALLEN:  I don't recall specifically. The CFO   the then CFO took a decision to leave the organisation and there were further discussions about what position should be introduced to replace the CFO. 

MR GRIFFIN:  In the CEO Report to the Board for December 2019, behind hearing bundle E at tab 42   I don't need this to be brought up   at page 1914,  Mr Herald is quoted as saying:

"2019 also saw the beginning of our National Staff Ball and awards that will be the central part of the celebration of 'The Afford Way' and being an Affordian."

Does that raise any red flags for you, or is that just colourful language? 

MR ALLEN:  I think it's just colourful language. 

MR GRIFFIN:  He goes on at 1915 to say:

"We are the fastest growing company in the sector in Australia thanks to 'The Afford Way'."

As a matter of fact was that correct, to your knowledge? 


MR GRIFFIN:  You mean it wasn't correct or you don't know whether it was or not? 

MR ALLEN:  It wasn't correct. 

MR GRIFFIN:  In what way was it not correct? 

MR ALLEN:  The efforts of staff had led to the expansion of the organisation's services and facilities. That culture document doesn't of itself drive that performance. 

MR GRIFFIN:  So it might be the case that on a financial analysis, Afford may have been the fastest growing company in the sector but certainly not for the reason described by Mr Herald? 

MR ALLEN:  No, that's right. There are a range of reasons for the organisation's growth. 

MR GRIFFIN:  That suggests to a casual onlooker that Mr Herald was seeking to claim credit for everything because he was the primary author of 'The Afford Way' and everything flowed from that, is that a reasonable assessment?

MR ALLEN:  I think that's quite a reasonable assumption, yes. 

MR GRIFFIN:  There's a copy of 'The Afford Way' at hearing bundle E, tab 252, dated May 2020. Perhaps that can be brought up.

CHAIR:  Perhaps give the reference. 

MR GRIFFIN:  AFF.0004.0001.1   sorry, .0113. As indicated, Mr Allen, what's on the screen is dated May 2020. As a preliminary question, can I ask you this:  do you know when and if 'The Afford Way' was formally adopted by the Board? The reason I ask that is, we haven't been able to ascertain a specific resolution, even though it's gone before the Board on many occasions in different iterations. 

MR ALLEN:  I can't recall whether it was formally adopted by the Board, but certainly the Board had a number of discussions with the then CEO about the document, and as I've indicated in one of my earlier responses, a number of revisions were requested. 

MR GRIFFIN:  And was that request for revisions met by Mr Herald? 

MR ALLEN:  I believe so, yes. Not "I believe so". Yes. 

MR GRIFFIN:  And did we finally come to a document like the one on screen. Does that represent what I might call the final version of that document or are you unable to tell? 

MR ALLEN:  I believe that's the final version, yes. 

MR GRIFFIN:  To your knowledge, this Commission can work on the basis that the document I've just had put up on screen was the working document within the organisation? 

MR ALLEN:  Yes. 

MR GRIFFIN:  Then finally in respect of CEO Reports, can I take you to the Report of October 2020, hearing bundle E, tab 51, at page 1992, document reference AFF.0005.0001.1990. There's a quote on that page which says:

"2020 has been a difficult year and our culture has remained very strong but needs some refocussing. The backbone of our incredible success over the past five years has been 'The Afford Way'."

Do you see that? 

MR ALLEN:  Yes, I can. 

MR GRIFFIN:  I take it from your earlier answer that you don't accept that proposition because you point out that the backbone   the success of Afford was the hard work and dedication of your many staff? 

MR ALLEN:  That's correct. 

MR GRIFFIN:  In any Board meeting you can recall, was Mr Herald challenged about this constant theme of attributing to his manifesto 'The Afford Way' everything positive that happened at Afford? 

MR ALLEN:  Yes, that was taken up with the then CEO on a number of occasions at Board meetings. 

MR GRIFFIN:  Can you give the Commissioners some flavour as to how it was taken up and how he responded? 

MR ALLEN:  It was taken up in a number of ways, particularly as I've mentioned in an earlier response, the nature and tone of the language that was being used, and the nature of the self congratulatory comments, and the lack of recognition of the contribution of staff more broadly across the organisation. 

MR GRIFFIN:  But from this brief survey, there doesn't seem to be any fundamental change in his approach or attitude? 

MR ALLEN:  I do believe some change took place, but it's fair to say there was no sustained change. The changes didn't necessarily last very long. 

MR GRIFFIN:  Doesn't that represent a challenge to the authority of the Board? Given   

MR ALLEN:  It certainly represents a level of concern for the Board, and the Board took that concern up with the then CEO. 

MR GRIFFIN:  But it's more than a concern, isn't it? On your evidence, he's been told on a number of occasions that the Board wasn't happy with how these reports were being presented, and he appears to thumb his nose at the Board. 

MR ALLEN:  That's certainly one interpretation, but there were active discussions with the then CEO about a range of those matters. 

MR GRIFFIN:  Can I finally take you to the Annual Report of 2019 2020 of Afford, hearing bundle E, tab 127 at page 0039, DRC.9999.0122.0001. And can I ask that   can I have the preceding page as well, which is 38. Thank you. Now, that's in the Annual Report. Can I assume that the Annual Report was signed off by the Board before it was publicly released? 

MR ALLEN:  Yes, it was, and the then CEO was directed to remove the photo of himself in that Annual Report. 

MR GRIFFIN:  Directed before the Report was released or   

MR ALLEN:  Before the Report was released is my clear recollection. I'm not sure what version you've got or   but certainly that took place, and I did see a version without that photograph. 

MR GRIFFIN:  My instructions, Mr Allen, are that what's up on screen is what appears on the website of Afford for the Annual Report. If that be correct, would that surprise you? 

MR ALLEN:  Yes, it would. 

MR GRIFFIN:  Why did the Board think the photograph at page 39 should be removed? And before you answer that, that appears to be a montage of photos in the background, presumably of activities of Afford and participants with head and shoulders shot of Mr Herald superimposed on top of that montage; is that correct? 

MR ALLEN:  That's my understanding, although I'm not familiar with the techno. 

MR GRIFFIN:  When that was presented to the Board, what was the nature of the objection of any Board members to that photograph? 

MR ALLEN:  That it excessively focused on the CEO and was not consistent with what the Board felt was an appropriate Annual Report. 

MR GRIFFIN:  This question is not based on a psychological or psychiatric diagnosis, but to your mind, does presenting a photograph like that for publication in an Annual Report appear to you to be engaging in narcissistic behaviour? 

MR ALLEN:  Yes, that's a reasonable assumption. However, in fairness, the then CEO said he didn't direct that that be included, that the staff responsible for preparing the Annual Report had included it of their own volition. 

MR GRIFFIN:  But surely when it went before the Board, he had seen it in the Board papers when they were being compiled? 

MR ALLEN:  I presume so. Yes. 

MR GRIFFIN:  Were you persuaded by his explanation that, "It wasn't me, it was someone else"? 

MR ALLEN:  The Board wasn't concerned about how the photograph arrived in the Annual Report. The Board was concerned that it was inappropriate in the Annual Report and directed that it be removed.

CHAIR:  It would be even worse if staff thought this was an appropriate thing to put into an Annual Report. It would tell you an awful lot about the relationship between the CEO and the staff, wouldn't it? They thought this was the way to go? 

MR ALLEN:  It would have been one or two individuals, in fairness, Chair, working on the Annual Report. Not reflective  

CHAIR:  Yes. 

MR ALLEN:    of the views of staff more broadly. 

COMMISSIONER McEWIN:  Mr Griffin, I have a few questions for Mr Allen about the Strategic Planning weekend. Could I just go back to that document that we had, bundle E, 86, and if we can bring that up again that would be good, first page. So the bundle E, 86, and the number is   I'm only going from the bundle, but yes, AFF.0011.0001.3188. It's the first page. Yes. So from the agenda, I note   and I'm not going to read out the names, but I note that Board members had an opportunity to arrive at and tour the group home. 

MR ALLEN:  Yes. 

COMMISSIONER McEWIN:  Did you know if permission was sought and granted from the residents to have Board members come into their home? 

MR ALLEN:  Yes, that was always a requirement of the Board. To the best of my recollection there were no residents at the group home at that time. And the Board also visited a day program and permission was received from the participants in that program and/or their families and carers about the Board's visit. 

COMMISSIONER McEWIN:  So if I understand you correctly, so you visited a group home, no residents were there at the time? 

MR ALLEN:  That's correct. 

COMMISSIONER McEWIN:  So they were asked to leave for the specific purpose for Board members to come in and have a look at their home? 

MR ALLEN:  No, absolutely not. The residents of the home were out at day activities or the employment that they were pursuing. 

COMMISSIONER McEWIN:  Do you know if they knew that Board members were going to come into their home? 

MR ALLEN:  The best of my recollection is yes, they were made aware. They were told in advance that the Board would be coming to visit that home. 

COMMISSIONER McEWIN:  If you could confirm that, perhaps if you would like to take that on notice, I'd be interested to know that. 

MR ALLEN:  Yes, I'm happy to check.  I'm not sure what records there would be, but I will absolutely ensure we check. 

COMMISSIONER McEWIN:  Thank you. And one final question about the agenda, on the Saturday you've got   which is on the next page, and you have a program to discuss markets and investment, etcetera. Were disabled people part of that conversation? Did the Board members hear directly from disabled people as part of those discussions? 

MR ALLEN:  I don't recall that there was anyone with a disability in the executive team at that time. There was subsequently, but certainly the interests of our clients were discussed and were represented by the senior team. 


CHAIR:  Yes, Mr Griffin. 

MR GRIFFIN:  Mr Allen, just returning back to Mr Herald, do you accept the proposition that it appears that his primary objective was to promote himself at the expense of other members working within the organisation? 

MR ALLEN:  I don't think it's fair to say that that was his primary objective. He regularly provided positive feedback, and you will have seen from reading the Board reports that he did mention that positive performance of staff generally and of his senior team from time to time. 

MR GRIFFIN:  Would you agree with the proposition that 'The Afford Way' would have been more accurately characterised as The Steven Herald Way? 

MR ALLEN:  One could easily form that view. I don't necessarily think that it is fair to completely characterise that document in that way. 

MR GRIFFIN:  Why is it unfair? 

MR ALLEN:  It wasn't all about the then CEO. 

MR GRIFFIN:  Ms Toohey, you've heard the questions and answers. Given your extensive experience as a CEO before joining Afford, had you been sitting on the Board of Afford and seen this sort of documentation come forward over that two year period, what would your reaction have been? 

MS TOOHEY:  Can I just confirm, are we talking about 'The Afford Way' document? 

MR GRIFFIN:  Yes, and the reporting by Mr Herald to the Board in the way described this morning? 

MS TOOHEY:  The Board reporting in terms of tone and some of the content, my belief is that it was inappropriate. It certainly wasn't the level of professional reporting that should be going to a Board. There was a heavy emphasis on financial matters and even though volume 2 provides a lot of client participant content, I think the quality of the outcomes of the organisation was achieving and meeting its compliance obligations, for example, were matters that should have been discussed in the CEO's report. 

In relation to 'The Afford Way' document, I'm not a fan of culture documents. I don't think documents make a culture live and breathe and I place great emphasis on our values, our Code of Conduct, our purpose and how that's brought to life in the organisation, because that then goes to how we work and how we engage with our participants and family. 

MR GRIFFIN:  I'm very conscious that you sit next to the current Chair of your Board, but given the fact that Mr Allen was not the Chair of the Board at the time and I think his evidence is to the effect that he believed the Chair spoke to Mr Herald, had you been sitting on the Board and you had concerns, how would you seek to address those concerns with a CEO? 

MS TOOHEY:  If I was sitting on the Board, I would either raise the concerns that I had with the full Board and/or the Chair without the CEO being present to ascertain whether any of the other directors also had concerns. If appropriate, I would then have a 1:1 conversation as well with the CEO, but often I think it's more appropriate for the Chair, who the CEO generally reports to, to do that. I probably would have wanted to see changes to the reporting. That was certainly the information that was going to the Board, probably would have, yeah, expected to see that actually occur following the issues being raised. 

MR GRIFFIN:  Would you expect the content of the discussion between the Chairperson and the CEO to be recorded? 

MS TOOHEY:  I would expect that it would be brought up in an in camera session of the Board meeting, yes. 

MR GRIFFIN:  Would that include a written   a summary of what had occurred, even though it may not be for publication elsewhere? 

MS TOOHEY:  I've seen that before in Board   in Board minutes, yes, so in camera minutes can certainly be kept by the company secretary, can be kept confidential from the full executive. 

MR GRIFFIN:  And in your experience has that been an effective way of dealing with these issues?

MS TOOHEY:  I think it gives you a record of performance matters. 

MR GRIFFIN:  And it enables you to record how the CEO responded, firstly; correct? 

MS TOOHEY:  Correct. 

MR GRIFFIN:  And secondly to set some goals and milestones for behaviour change? 

MS TOOHEY:  That's right. 

MR GRIFFIN:  Without that there's a risk that it'll simply roll on, isn't it there? 

MS TOOHEY:  Like any performance matter with any staff member, yes.

MR GRIFFIN:  Yes. And as a matter of fairness to the CEO it should be documented so both parties are clear as to their situation at a particular time? 

MS TOOHEY:  Yes, that's correct. 

MR GRIFFIN:  The advantage of that approach, I suggest to you, Ms Toohey, is that if the Board decides to pull the trigger on the CEO they have an audit trail of concerns, responses and failure to change? 

MS TOOHEY:  That's right. 

MR GRIFFIN:  From a risk point of view, that's very effective for an organisation, isn't it? 

MS TOOHEY:  It is. 

MR GRIFFIN:  Because you're less likely to get a claim from the CEO for wrongful dismissal or some other issue? 

MS TOOHEY:  And I think the CEO should have the same procedural fairness as any other staff member in the organisation. 

MR GRIFFIN:  If the Commissioners don't have any further questions on this issue, I propose to move   Commissioner Bennett? 

COMMISSIONER BENNETT:  Mr Allen, do you feel, in hindsight, that aspects of Mr Herald's behaviour in a way he reported was   he was allowed to get away with it because he was delivering profit? 

MR ALLEN:  No. No, I don't. The organisation was certainly successful in providing more services to more people in more places. The organisation is a for purpose organisation. In that regard, certainly the then CEO made a very strong contribution to increasing the range of services for our clients. But I don't think there was a trade off, for want of a better expression, on the other areas of his performance that had been raised with him as a concern. 

COMMISSIONER BENNETT:  The CEO Reports that we've gone through this morning, their primary focus has been on profits, with very little commentary usually about quality or outcomes for people with disability. Was there, perhaps not formally given, but   that the Board shared the focus on profit and expansion with the CEO? 

MR ALLEN:  The Board certainly have an express desire to grow the organisation and provide more services to more people in more places.  It wasn't focused on profit per se, but on the expansion of services to benefit our clients, yes.

CHAIR:  The word "quality" is missing from the answer you've just given, isn't it? 


CHAIR:  You can provide more services but they're not necessarily quality services, are they? 

MR ALLEN:  That's a fair comment, Chair, but I am  

CHAIR:  I'm just commenting on the answer you gave. 

MR ALLEN:  Yes. Thank you. 

COMMISSIONER BENNETT:  Coinciding with the growth, because of the introduction of the NDIS as a national policy, was based on people with disability having individualised arrangements that looked at their aspirations and their goals and then what services could be provided in a range of ways to meet those aspirations. Neither in Strategic Plans nor in the Reports to the Board do I see an alignment of that goal of the introduction of the NDIS. What I read is about market, competitors and I'm trying to understand how the Board may have understood its growth of its business isn't actually what the goals for individuals under the NDIS? 

MR ALLEN:  The organisation's mission and vision speak to both of those points in terms of quality and improved lifestyles and self determination for our clients. 

COMMISSIONER BENNETT:  But how did the Board reassure itself and the direction, which is the role of the Board, to the CEO on delivering that for people with disability? 

MR ALLEN:  That was broadly reflected in the Strategic Plan. In fairness they were not detailed documents, but certainly the whole purpose and being of the organisation was to achieve those quality outcomes for our clients. 

COMMISSIONER BENNETT:  Didn't you, in reality, have models of delivery that you've been doing through the 50s of housing, day programs, the factory, and just expand that old model? 

MR ALLEN:  No. No. There were a range of newer services to were provided to our clients. Our Allied Health is a good example. That was not a service previously provided by Afford historically. There was also an increase in respite services which hadn't historically been part of the organisation, support coordination as well. There was holiday programs that hadn't historically been part of the organisation where staff were involved in taking clients overseas to places like Disneyland, for example. That wasn't part of the historical service mix of the organisation. And Club Afford that's been mentioned at the hearing this week was another new and different service to provide more activities and more opportunities for clients on weekends. 

So there was a significant increase in the range of services beyond what was traditionally provided. And Afford traditionally didn't provide group homes. They were more involved in, to my understanding of the history of the organisation, in large scale residential centres, and they   there was only one remaining, prior to the introduction of the NDIS, and that was Cherrywood, and the then Age and Disability and Home Care Department of New South Wales and Afford jointly funded the construction of a number of group homes to relocate those residents from that large scale residential centre.

CHAIR:  Yes. Just a couple of questions from me. You've heard Ms Toohey's very clear explanation, if I might say so, as to how the Board might consider the adequacy of the performance of a CEO. Were there any in camera meetings of the Board of the kind that Ms Toohey has described? 

MR ALLEN:  Yes, there were.

CHAIR:  When? When was the first one? 

MR ALLEN:  I'm sorry, Chair. I can't recall when the first one  

CHAIR:  Was it after the Report into the CEO's alleged misconduct? 

MR ALLEN:  No, it was prior to that.

CHAIR:  What was the outcome of that in camera meeting? If you can't remember, you can't remember. 

MR ALLEN:  I can't remember specifically. There were some changes in the then CEO's performance. There were different executive positions put in place to better support the organisation, and the then CEO. Those types of things were the outcome of those conversations.

CHAIR:  This is something that I would put to Ms Toohey for her response, except that she's sitting next to you, so I won't. But I do want to put to you, and I recognise that we are looking at this with the benefit of hindsight and with the benefit of the evidence about what happened at the day programs, not just to the three young men who experienced abuse, but more generally. 

I want to put to you my impression upon reading the material that you read overnight. I find it difficult to understand how the CEO could possibly have lasted as long as he did in the light of the reporting that he did which was not merely   I'm giving you my impression   narcissistic in the way that has been described by Mr Griffin, but reflected a complete failure to recognise, understand and implement, as far as the documentation is concerned, the overriding goal of the organisation not just to provide services or more of them, but to keep the health, wellbeing and safety of all the participants in the programs at the very forefront of the organisation. 

And as I look at those documents, some of which I have to say I would regard the comments of the CEO as bizarre, I cannot understand how he was allowed to continue as long as he did. I give you the chance to comment.

MR ALLEN:  Chair, in fairness to the then CEO, the Board had observed the CEO in his relationship with our clients at various functions and various events, and it was clear that he was well regarded and well liked by our clients from those interactions. I observed them to be very genuine on their part   the part of our clients and on the part of our then CEO. 

But I take the point that you've made about the Reports, and Ms Toohey and I have a very open and strong working relationship and I'm not uncomfortable for her to be asked and answer the nature of the questions that the Commission has raised today.

CHAIR:  Yes. Well, I'm not going to seek to embarrass Ms Toohey. I've given you my impression of it and I wanted to give you an opportunity to respond. Alright. If there's nothing else we'll have the next question. 

COMMISSIONER McEWIN:  Just one question from me. You both talked about renewal and you area reviewing your operations and governance. On Monday we heard from the parents who had expectations when their adult child went to the day program that is it would enable them to go out into the community and participate. So what plans do you have to make those programs more inclusive? For example, in your statement you say they're given a list about activities that they can choose from. But what if they want to go to the local library, the bowling activity, and participate in book club. Is that open? Do you have that in your   is that the sort of plans you have? 

MS TOOHEY:  That's already available. That is already available, those sorts of activities. So it's often driven by the desire of the participants in terms of what they want to do on a particular day. We do quite a lot of 1:1 community support that comes from either our day programs or directly from their home. There is a full review going on at the moment around the contemporary nature of our practice across both our residential settings and our community settings as well. 

COMMISSIONER McEWIN:  So my final question on that point then, we heard from three families who now have said their child   adult child is happier, less behavioural issues, communication is better. So that's three. Is there any impediment, Ms Toohey, to then not enable your 6,000   your current 6,000 clients to be able to do exactly that? Is there any impediment to that? 

MS TOOHEY:  There's certainly no impediment for us actually meeting the individual desires and wants and goals of a participant. In relation to whether or not a participant has 1:1 support, obviously for us that's often dictated by the funding that's available for somebody, but, you know, things are never black and white and an organisation should always have an approach of trying to make things work as best we possibly can. 

I was quite disturbed to hear that in fact the parents felt their children had actually gone backwards when attending. That concerned me greatly. That certainly should not be the case, and that's one of the reasons why the whole new team has been here all week, to hear those concerns so that it feeds into the work that we're currently doing so that we can make sure we address it. 

COMMISSIONER McEWIN:  Thank you. Their, Chair.

CHAIR:  Mr Griffin, if we adjourn now till 11.30, bearing in mind the vicissitudes of life, when do you think you'll be concluded? 

MR GRIFFIN:  I'll finish by 1.

CHAIR:  Alright. Well, we'll adjourn until 11.30. 



CHAIR:  Yes, Mr Griffin. 

MR GRIFFIN:  Commissioners, I'd now like to move to the topic of the Board oversight of incidents involving violence, abuse, neglect, or exploitation of participants. Ms Toohey, do I understand that until October 2021 Afford did not have a dedicated team focussing on ensuring the safety and quality of services provided to participants or preventing and responding to violence against them, etcetera? 

MS TOOHEY:  There wasn't an independent team, no. 

MR GRIFFIN:  In broad terms, was that responsibility insofar as it was discharged, the province of the HR Department? 

MS TOOHEY:  Yes, it was, and also the roles that have responsibility for particular areas of service delivery. 

MR GRIFFIN:  You took the view, I take it, that that wasn't sufficient? 

MS TOOHEY:  I did. 

MR GRIFFIN:  What did you decide to do? 

MS TOOHEY:  I established a team that's now focussed on consumer experience and safeguarding and within that team it's completely independent. The Executive Director reports directly to me. In that team is an internal audit function, a principal adviser for safeguarding, which is   recruitment has just been finalised for that role. We have practice leads for clinical care, Allied Health and positive behaviour support. We also have a quality and policy and compliance team within that as well. 

MR GRIFFIN:  And are the personnel to those teams recruited from external sources or are they Affordians? 

MS TOOHEY:  There are three of the 12 resources in that team now that are internal candidates and all went through an interview process, and the most appropriate took the roles; the rest of all external candidates. 

MR GRIFFIN:  Did you say three of the 12 resources?

MS TOOHEY:  Three of the 12 resources. 

MR GRIFFIN:  Are they people? 

MS TOOHEY:  They're people.

MR GRIFFIN:  Right. Can I have brought up on screen document IND.0071.0005.0048, and page 3 of that document. This is an email from Ms Ballai, a member of the Board. Can I take you to the bottom of page 3, Mr Allen, where she states:

"I've dedicated my entire life to look after vulnerable members of our society. Since I'm a registered health professional, I am morally, ethically and legally obligated to do no harm. This also includes not being involved in passive neglect by doing nothing, thereby causing harm to these vulnerable members of our society."

What was the reaction, to your recollection, Mr Allen, when Board members received this email from Ms Ballai?

MR ALLEN:  After the receipt of the email there was detailed and lengthy discussion at the next Board meeting following the email that was sent. 

MR GRIFFIN:  What was the nature of the conclusions reached during that discussion at Board level? 

MR ALLEN:  The nature of the discussions were what measures could or should be put in place to better address the issues that were flagged in the email. The then CEO and Executive Manager of Specialist Services argued very strongly that those   the points that have been raised were being addressed by staff across the client service network, and that a centralised function was not required, that the distributed responsibility was more appropriate. 

MR GRIFFIN:  Can I have brought up document AFF.0012.0003.0016 which is the Afford written response to CTH NTG 00196 to this Commission, and page 6 be brought up. Can you see point 4 there, Mr Allen? 

MR ALLEN:  Not at the moment, I'm sorry, no, it needs to be   thank you.

MR GRIFFIN:  Thank you. This refers to the email I've just taken you to, and this document is a document provided by your lawyers on Afford's instructions, and it purports to answer the questions set out in point 4. 

MR ALLEN:  Yes. 

MR GRIFFIN:  When one reads the balance of the answer to point 4 from 4.1 to 4.6, there seems to be an interpretation of her concerns as being a health care concern; is that fair? 

MR ALLEN:  Yes. 

MR GRIFFIN:  And I assume that was partly because she was a registered nurse? 

MR ALLEN:  Yes. 

MR GRIFFIN:  When one reads her original email, she's saying far more than health care, isn't she? She's saying that vulnerable participants are being put at risk by what we are failing to do, including passive neglect?

MR ALLEN:  She was suggesting that those things could potentially be happening, yes. 

MR GRIFFIN:  And I want to suggest to you that the Board response, with respect, misses the point. It seeks to diminish her concerns by characterising them in a certain way. What do you say? 

MR ALLEN:  It certainly wasn't the Board's intention to diminish those concerns. 

MR GRIFFIN:  I'm not going to question the intent, Mr Allen. I'm looking at the reality of the response. And I'm going to suggest to you that the Board's response was wholly inadequate to the concerns she raised? 

MR ALLEN:  There was very strong views and advice put forward by the former CEO and the then Executive Manager, Specialist Services, who I recall also had a nursing background. And the Board, after lengthy discussion, accepted those views and that advice. 

MR GRIFFIN:  And that's reflected in 4.5, is it not:

"For these reasons, the Board did not further pursue Ms Ballai's proposal."

MR ALLEN:  That's correct. 

MR GRIFFIN:  With the benefit of reflection, would you as a Board member reach the same conclusion today? 

MR ALLEN:  Definitely not. 

MR GRIFFIN:  Why would your view today be different from what it was in late 2019? 

MR ALLEN:  I have the benefit of much more information about the experiences of our clients and the potential risks that could befall them. 

MR GRIFFIN:  What do you understand today that you didn't properly appreciate in 2019? 

MR ALLEN:  I think that's reflected in the comments that Ms Toohey has made, and the new organisational structures, particularly around customer experience and safeguarding. 

MR GRIFFIN:  But in broad terms, the paramount consideration of the Afford organisation was the care and protection of participants in their programs? 

MR ALLEN:  Yes. 

MR GRIFFIN:  "Paramount" can only mean one word   one thing, can't it? 

MR ALLEN:  Yes. 

MR GRIFFIN:  Surely that would have been in the mind of you as a Board member in 2019, that the gist of what Ms Ballai is raising went to that paramount concern? 

MR ALLEN:  Yes, and we had very lengthy and active discussions with the CEO and the relevant Executive Manager about how those concerns were being addressed in the way that the organisation was operating at that time. 

MR GRIFFIN:  But in 2019, you'd been on the Board for four or five years at that point? 

MR ALLEN:  Four years, yes. 

MR GRIFFIN:  Four years. Did it not occur to you that what Ms Ballai was raising went to the very core of why Afford existed? 

MR ALLEN:  Yes, absolutely, but the Board also took into account the range of other initiatives, including in 2019, as I mentioned in my earlier evidence, the introduction of an independent group home community visitor to provide further oversight and feedback to the Board on the way in which the group homes were operating. The Board was also cognisant of the feedback that had been received from staff at various staff occasions where the Board met with staff, and on the occasions that the Board met with clients. 

MR GRIFFIN:  But 2019 is four years into your tenure, and other Board members had been around for up to 18 years. How is that answer of what you did in 2019 responsive of why that paramount aim of the organisation was not being met adequately prior to that time? 

MR ALLEN:  I wasn't suggesting that that paramount point was not being met prior to that time. The organisation clearly, and the nature of the environment that we work in under the NDIS, had changed and evolved, and the care of our clients and the delivery of quality services remained paramount throughout all of that time. 

MR GRIFFIN:  Yes, but how is that reflected in action if you put the category of supervision relating to incidents of violence, abuse, neglect or exploitation in the hands of the HR Department? 

MR ALLEN:  The HR Department had certain responsibilities. There were, over the years, a number of different Executive Managers that also had responsibility in that area. The Executive Manager Specialist Services was one that is mentioned in that note there. Subsequent to that it was the Chief Operating Officer. So it's not correct to say that it was exclusively the responsibility of HR. HR's responsibility very much goes to the performance of staff. 

MR GRIFFIN:  Well, that's exactly my point, Mr Allen. The primary role of the HR Department concerns the staff. Where is the primary interest of the participants being met under that arrangement? 

MR ALLEN:  As I've mentioned, the primary needs of the participant were being met through the Customer Services arm of the organisation, and reflected in the Executive Manager Specialist Services role to oversight those matters relating to compliance, as well as the Chief Operating Officer being responsible for those at a later time, in a different executive structure. 

MR GRIFFIN:  If you listen to the evidence of Mr Adamson?

MR ALLEN:  Yes, I did. 

MR GRIFFIN:  He was being questioned by Ms Gleeson at transcript page 283/34 to 37 and he says, in relation to no centralised safeguarding function:

"So the main problem we had is, we were a very lean organisation at the top and with a lot of that responsibility falling on the Team Leaders or the District Managers' shoulders to complete those tasks. At the executive level there was, I guess, no executive in charge of safeguarding or quality risk or compliance. That all fell to the District Manager and the Team Leaders' shoulders."

Do you accept the thrust of what Mr Adamson says, describing what the situation was? 

MR ALLEN:  I don't dispute what Mr Adamson has said in his evidence, but there were Executive Managers reporting to the CEO with those responsibilities. Clearly, they were not effective enough by a long measure. 

MR GRIFFIN:  Well, when you say you accept what he says, he says in part:

"No executive in charge of safeguarding or quality risk or compliance."

That's his assertion. 

MR ALLEN:  Yes, and I'm advising that there was executive staff with those responsibilities   

MR GRIFFIN:  What was the   

MR ALLEN:  Up until around 2020 it was the Executive Manager Specialist Services, although I can't be clear on the date, and after that it was the Chief Operating Officer. 

MR GRIFFIN:  If that be the case, the person in that role seemed to have had a remarkably low profile in the organisation.

MR ALLEN:  As I said earlier, clearly those arrangements were fundamentally ineffective. 

MR GRIFFIN:  If we loop back to the start, your paramount aim as an organisation is the care and protection of participants you provide services to. 

MR ALLEN:  Yes. 

MR GRIFFIN:  And up until at least 2019, in reality, it wasn't sufficient priority to have somebody at a senior level responsible for that and exercising those responsibilities properly. Is that a fair summary? 

MR ALLEN:  There certainly were executives with those responsibilities. Clearly from what I now know, those responsibilities were not exercised properly nor effectively. 

MR GRIFFIN:  In other words, it might have been part of their job description but they weren't doing it? 

MR ALLEN:  That's a fair comment. 

MR GRIFFIN:  Why did that not become apparent to the Board prior to the concerns raised by Ms Ballai? 

MR ALLEN:  Because on other information, and reporting generally provided to the Board, that concern wasn't flagged more strongly. 

MR GRIFFIN:  Well, who could it be flagged by? The person whose job it was apparently wasn't doing their job, and it was all delegated down to lower levels. 

MR ALLEN:  In the volume 2 Board reports that I've referred to previously, there is information contained in those that would provide the Board with some insight into the effectiveness of service delivery and any areas of concern like incidents taking place, like complaints coming through, that material or that information was provided in some detail, and did lead to discussions with the CEO at Board meetings if there were any areas of concern. 

MR GRIFFIN:  You weren't a member of the Finance Audit and Risk Committee, were you? 

MR ALLEN:  No, I was not. 

MR GRIFFIN:  But did you understand that the minutes of this committee became part of the Board papers? 

MR ALLEN:  Yes, they were provided to the Board for information. 

MR GRIFFIN:  Do you recall why it is that as late as April 2019, it was resolved to develop a comprehensive Risk Management Framework, in the sense of why wasn't one in place prior to that? 

MR ALLEN:  There were risk arrangements in place prior to that. The committee and the Board were concerned that those were not extensive enough, nor contemporary enough in their nature. And so BDO were engaged to assist in reviewing those and making recommendations for future arrangements. 

MR GRIFFIN:  And it was the tenor of some of the recommendations an unacceptably narrow view of "risk" was being adopted? 

MR ALLEN:  That's correct. 

MR GRIFFIN:  Was that because in broad terms "risk" was assessed from a financial point of view rather than a participant point of view? 

MR ALLEN:  No, I don't think that's a fair comment. 

MR GRIFFIN:  How would you describe the arrangement prior to 2019 insofar as it dealt with the risk to participants?

MR ALLEN:  The organisation has always been very concerned about the quality of services and the safety of clients. And that's been evident to me from my time on the Board and from what I understand of previous Boards. There are a range of ways that the Board can monitor   excuse me   monitor and oversight those arrangements and indicators, as I've mentioned, were included in the volume 2 reports to the Board. 

MR GRIFFIN:  Mr Allen, let me make it clear:  I don't suggest that Board members were not concerned in the general sense of the word about the welfare of participants. What I'm trying to get at is how that concern was manifested, and was it manifested effectively. If I can take you to the audit committee minutes of April 2019, hearing bundle E at tab 110, document reference AFF.0005.0001.2568 at 2973.

CHAIR:  Do you mean 2573 or 2973? 

MR GRIFFIN:  It's at 2973.

CHAIR:  That suggests the document is 400 pages long. 

MR GRIFFIN:  That's correct.  Indeed, yes. Perhaps I'll read out the relevant portion   

MR ALLEN:  Thank you. 

MR GRIFFIN:    whilst we're locating it. It said:

"The committee noted the protocols in place, but identified the absence of a risk management plan."

This is the Finance and Audit Committee in April 2019:

"A risk management plan within the structure and offered examples of how this could be structured including those provided by directors like Alan and Cliff Haynes. Recommendation:  that the executive create an overarching risk management plan for the organisation including specific risk management plans for each key business area of Afford as part of Afford's risk management plan, a risk management register will be maintained and submitted to the committee quarterly."

Do you recall   

MR ALLEN:  Yes, I do. 

MR GRIFFIN:    that recommendation?  Was that recommendation adopted by Afford? 

MR ALLEN:  Yes. 

MR GRIFFIN:  Was that recommendation implemented? 

MR ALLEN:  Yes. 

MR GRIFFIN:  I think the resolution occurred at the April 2019 Board meeting, which I won't take you to. I think, Mr Allen, you then were involved in setting up a complaints review; is that right? 

MR ALLEN:  Yes, that's correct. 

MR GRIFFIN:  And that appears in your statement at page 5? 

MR ALLEN:  That's correct. 

MR GRIFFIN:  And that's when you engaged BDO? 

MR ALLEN:  They   they were not directly related initiatives. BDO were engaged, yes, around the same time. 

MR GRIFFIN:  Right. 

MR ALLEN:  But the review of our complaints mechanism was something I sought separately. 

MR GRIFFIN:  Was the role of BDO principally to develop a Risk Management Framework?

MR ALLEN:  Yes, a more encompassing Enterprise Risk Management Framework. 

MR GRIFFIN:  That happened in September 2019? 

MR ALLEN:  Yes, my recollection. 

MR GRIFFIN:  And I think BDO presented to the Board? 

MR ALLEN:  They did indeed. 

MR GRIFFIN:  And as a result of that, they indicated to the Board there is deficiencies? 

MR ALLEN:  Yes. They made a number of recommendations. 

MR GRIFFIN:  And those recommendations were accepted by the Board? 

MR ALLEN:  Yes, they were. 

MR GRIFFIN:  How was the issue of participants' welfare and safety dealt with within the risk management proposal which was developed? 

MR ALLEN:  I'm sorry, I can't remember the detail of that proposal, but   

MR GRIFFIN:  Do you recall the ANSVAR Report which is at hearing bundle E at tab 208? 

MR ALLEN:  Yes, I do. 

MR GRIFFIN:  I think you said earlier in your evidence yesterday that the Board accepted all the recommendations of ANSVAR? 

MR ALLEN:  That's correct. 

MR GRIFFIN:  Part of what ANSVAR said was:

"The Board must take into account the effect on staff and clients of the absence of a risk framework."

MR ALLEN:  Yes. 


"It has created voluminous and high risk processes."

MR ALLEN:  Yes. 


"A sense of overwhelming fatigue in the organisation can in part be attributed to the reactive matter of the business, the lack of clear plans and greater broadcasting of risks prevents people from knowing what is coming over the hill and impedes preparation and mitigation of   ."

MR ALLEN:  Yes. 

MR GRIFFIN:  And the Board accepted that assessment by ANSVAR? 

MR ALLEN:  Yes, they did. 

MR GRIFFIN:  They went on to say:

"Many red flags that indicate the risk framework was not functioning in accordance with the governance policy and there is no evidence the committee executed its responsibility to address the lack of conformance."

So in a nutshell ANSVAR seemed to be pointing out widespread deficiencies in the arrangements of Afford and also suggesting specific committee to whom those responsibilities were delegated were not meeting those responsibilities? 

MR ALLEN:  Yes. That's what was indicated. 

MR GRIFFIN:  That's what was accepted by the Board? 

MR ALLEN:  Yes, it was. But the Board   the nature of the Board discussions at that time also reflected on the other comments made in the Report that, notwithstanding the work and the efforts of the organisation went to with the implementation of the BDO review recommendations, there appeared to be a lack of management commitment to implement the arrangements, or inculpate the risk management approach and focus across the organisation, and the Audit and Risk Committee had sought assurances from the then management that that had taken place, but clearly it had not. 

MR GRIFFIN:  One of the outstanding features of the ANSVAR Report is that they interviewed extensively staff members. 

MR ALLEN:  Yes. 

MR GRIFFIN:  And in that report they identified issues raised by staff members, didn't they?

MR ALLEN:  Yes, they did. 

MR GRIFFIN:  Including no risk management training for line managers, no staff they interviewed recalled ever seeing the risk management policy, and so on. 

MR ALLEN:  Yes. 

MR GRIFFIN:  That must have been a considerable concern to the Board when you read that report? 

MR ALLEN:  A very grave concern. 

MR GRIFFIN:  And did it prompt the question:  why did we as Board members not know of all these concerns the staff had at the frontline? 

MR ALLEN:  Yes. 

MR GRIFFIN:  What did the Board do about that revelation? 

MR ALLEN:  The Board had already begun a process of renewal of the organisation through the recruitment of Ms Toohey and subsequently her restructure of the staff   staffing arrangements and the new executive team that she's putting in place. Prior to that, the organisation had an interim CEO from around the beginning of May until early October in 2021, and had started some measures with that interim CEO. 

MR GRIFFIN:  Just one final observation made in the Report:

    "Afford captured significant volumes of incident information. However, with such a strong compliance orientation overlay to its risk culture, incident management is focused more on meeting regulatory obligations than driving systemic improvements from thematic incident analysis."

Now, putting the jargon aside, what ANSVAR is saying to you, you collect all this information but you don't know what to do with it". 

MR ALLEN:  I think it's said to me that we collected all of that information and we didn't analyse it, deal with it and respond to it effectively. 

MR GRIFFIN:  And the effect of that was, what was the point in collecting it? 

MR ALLEN:  Indeed. 

MR GRIFFIN:  The tenor of the Report suggests that the organisation, or at least the executive team, were more concerned with technical compliance with regulatory matters than learning anything from the content of the information being collected. In hindsight, is that a fair summary? 

MR ALLEN:  Yes, it is. 

MR GRIFFIN:  Does it flow from that concession, Mr Allen, that before the changes you've referred to occurred, Afford's approach to risk management was fundamentally deficient? 

MR ALLEN:  We now understand that to be the case. 

MR GRIFFIN:  And you accept that proposition, don't you? 

MR ALLEN:  I certainly do, yes. 

MR GRIFFIN:  Because what the ANSVAR Report did is it disclosed deep rooted systemic failures in assessing and responding to risk, and the result of that was it was having adverse effect on your staff and their ability to effectively perform their safeguarding role? 

MR ALLEN:  Yes. 

MR GRIFFIN:  Do you agree? 

MR ALLEN:  And that's why we've put the new arrangements in place. 

MR GRIFFIN:  Ms Toohey, how do the new arrangements overcome the deficiencies we've been discussing that were previously in the organisation? 

MS TOOHEY:  Well, the work's only just starting, in fairness. I think as I explained to you yesterday in response to one of the questions, first six months for me have been about putting in the right capability in the teams in the organisation. So the consumer experience and safeguarding team are now in place. We now have a Director of Enterprise Risk who has independent responsibility for our Enterprise Risk Management Framework across the organisation. She has a dotted reporting line directly to the Audit and Risk Committee. We've amended the terms of reference to the Audit Risk Committee, Mike and I   Mr Allen and I   for   to ensure that that includes matters around clinical governance, client safety, so it's a more balanced approach. 

MR GRIFFIN:  Can I ask you to pause there. This is a process that will take some time. 

MS TOOHEY:  It will take   yeah, it will take some time. 

MR GRIFFIN:  How can the Board be satisfied, whilst this process is being implemented, that participants are being safely cared for? 

MS TOOHEY:  So in conjunction with the implementation of the Risk Management Framework one of the functions of the experience and safeguarding team is exactly what you were describing a minute ago in relation to our complaints and incident management. For example, so the Board will see performance reporting in relation to that that come to the Board monthly. That will also include trends and insights and our continuous improvement initiatives so that our data then gets analysed and we have the opportunity to improve it. It's not just about the particular incident. It becomes an organisational wide initiative. So the Board will get significantly increased visibility around that in the next two or three months. 

MR GRIFFIN:   Is that another matter that I can flag that the Commission might require an update report from you later in the year. 

MS TOOHEY:  Yes, I'm aware.

MR GRIFFIN:  Do the Commissioners have any questions in relation to this issue before I move to the matter of Daniel Nuumaalii?

CHAIR:  No. Carry on, I think. 

MR GRIFFIN:  Mr Nuumaalii's situation, as I indicated in my opening   I don't want to go back through because it's not suggested by Counsel Assisting that Afford knew about his behaviour. We accept on the evidence that's been presented to us that the organisation became aware of it as a result of police investigation. Ms Toohey, when you started as CEO, were you made aware of a number of incidents relating, firstly, to Merna Aprem, and secondly, in relation to Daniel Nuumaalii? 

MS TOOHEY:  Yes, I was. 

MR GRIFFIN:  What was the nature of the information provided to you and what documents were provided to you to bring you up to speed? 

MS TOOHEY:  I went through   had conversations with one of our staff around the incident reporting that had occurred, so I sought the incident report that had been lodged with the Commission in relation to both Ms Aprem and the issue relating to Daniel Nuumaalii. I also read the investigation reports that had also been commissioned by the organisation. 

MR GRIFFIN:  And you outline in detail in your statement that information. Did you look at the NDIS Commission Reportable Incident Notification submitted by Afford?

MS TOOHEY:  I did. 

MR GRIFFIN:  And did you review that on the CIMS program? 

MS TOOHEY:  No, I asked someone just to produce me a book of documents. 

MR GRIFFIN:  Did you look at any Afford abuse or neglect procedure in place at the time? 

MS TOOHEY:  I looked at our current policy. 

MR GRIFFIN:  And did you reach any conclusions having looked at that policy? 

MS TOOHEY:  The policy needs review. So like   like many of the policies that we have in place, particularly those that relate to our participants, the voice of the participant itself is actually not necessarily heard in our policies and our procedures. And I think that our   our policy around abuse and neglect, that   that flavour of safeguarding and what that means across the whole organisation   because for me safeguarding is not just about a policy or a procedure or a particular approach to an incident; it's about how the organisation works. And so that, for me, wasn't reflected either in   in the policy. 

MR GRIFFIN:  Did you understand that Afford at the time were conscious of not interfering with or cutting across police investigation? 

MS TOOHEY:  I was after I had conversations with staff, yes. 

MR GRIFFIN:  Once the police had concluded their investigation and brought charges, did you find any evidence that Afford had then made their own inquiries as to whether other participants who weren't the subject of charges had been subjected to abusive treatment by Mr Nuumaalii? 

MS TOOHEY:  No, I did not. 

MR GRIFFIN:  Did you find any evidence that Afford had contacted the participants and/or their families to alert them specifically to the fact there had been a police investigation and charges had been made? 

MS TOOHEY:  No, I did not. 

MR GRIFFIN:  Did you find any evidence of communication for that group of people inviting them to come forward if they had further information in relation to the treatment they received themselves or the family had been told of that treatment? 

MS TOOHEY:  No, I did not. 

MR GRIFFIN:  Given your experience as a CEO, if confronted with that situation during your tenure, what approach would you take? 

MS TOOHEY:  My approach would be different. Right from the moment of the phone call from the police to alert us to the incident, I would have made every effort to actually have a face to face conversation with the relevant family members rather than a phone call in the first instance to inform them that the police had made contact. It's difficult for an organisation when it's an ongoing investigation, obviously, for us to have particular conversations but I would have appointed an external, probably, disability advocacy organisation to provide independent advocacy and support for each of the families separately, and then that person being able to see them right through until the criminal investigation, so that the family had ongoing support.

I probably would have communicated more broadly with the families of the Mount Druitt day program as well. You know, I think it's always open and transparent is always best in our family communications. I don't want people hearing things third hand. So the moment he was charged, I would have organised for family meetings to occur at the day program. And we would have continued to support the families through that, as well as our staff, because our staff obviously were quite significantly impacted by it as well. 

I think one of the things that   which goes to the overarching safeguarding framework is then, you know, doing that full review of our participants, client files, for example, to make   just to   it's part of that investigation that occurred. For me the worksite investigation looked to see whether there was policy process procedure; it didn't take a safeguarding approach. So I probably would have appointed a critical incident investigator who actually had experience in physical and sexual abuse investigations because I find that they take a much broader view of the investigation. 

That then would have given us opportunities for improvement more broadly, and they would have looked at things like our environment. So it would have gone to the opportunity for the abuse, as opposed to just the actual incident itself. 

MR GRIFFIN:  Mr Allen, as you sit here today, do you know for a fact whether any of the other participants involved with Daniel Nuumaalii had suffered at his hands, other than the ones charged? 

MR ALLEN:  No, I don't. 

MR GRIFFIN:  Afford has had available to it the opportunity of obtaining legal advice in respect of the police investigation; is that correct? 

MR ALLEN:  Yes. 

MR GRIFFIN:  And as far as you're aware there is no impediment for someone at the organisation to contact the officer in charge of any investigation to discuss things that you propose to do to ensure yourself that they don't prejudice that investigation; is that correct? 

MR ALLEN:  Yes, that opportunity existed and my understanding is that the then CEO had those   the nature of those discussions with the police involved. 

MR GRIFFIN:  What did he report to the Board about any discussions he had with the police involved? 

MR ALLEN:  I can't recall that   specific comments but broadly, that the police were very clear that they didn't want Afford to take any actions that would impede or prejudice in any way their investigation. 

MR GRIFFIN:  Let's assume for the moment that that was the advice Mr Herald was given. What about when Mr Nuumaalii had been charged and convicted? Was any inquiry made of the police as to whether there was any impediment at that point? 

MR ALLEN:  Not that I'm aware of. 

MR GRIFFIN:  Why has Afford failed to do the sorts of things Ms Toohey just outlined? 

MR ALLEN:  I can't give you an answer or a reason that I   I would find satisfactory. I do not understand why more was not done to support our clients and their families and carers. 

MR GRIFFIN:  The abuse engaged in by Mr Nuumaalii was, I suggest to you, secretive and opportunistic. It wasn't criminal conduct where he assaulted someone in a room with 20 other people present, was it? 

MR ALLEN:  No, it was not. 

MR GRIFFIN:  It came to the attention of police accidentally in relation to other inquiries they were making about him. Do you accept that? 

MR ALLEN:  Yes, I understand that's the case. 

MR GRIFFIN:  In those circumstances, why wouldn't the organisation have a priority to check with all other people at risk as soon as they're able to do that? 

MR ALLEN:  The organisation should have done that but I'm not clear whether that took place. 

MR GRIFFIN:  But was that not discussed at Board level? 

MR ALLEN:  There were a range of discussions at Board level about this matter from first reporting, and afterwards. I can't recall the specific detail of all of those conversations but certainly the Board had made inquiries of the then CEO about the welfare of our participants, about our concern for their families and ensuring that counselling had been offered, and that everything else that could reasonably be done was being done. 

MR GRIFFIN:  I suggest to you that perhaps the worst thing that can happen in an organisation such as yours is the death of a person. 

MR ALLEN:  Absolutely. 

MR GRIFFIN:  And even though it's odious to grade things, possibly the next most serious thing is someone will be the subject of criminal conduct. 

MR ALLEN:  Yes. 

MR GRIFFIN:  Assault or abuse. 

MR ALLEN:  Yes. 

MR GRIFFIN:  I take it that that doesn't happen on a regular basis at Afford in your experience? 

MR ALLEN:  Neither of those two things have happened previously in my Afford experience. 

MR GRIFFIN:  And so when they did happen   when it became apparent what Mr Nuumaalii was doing, that would have been a very shocking revelation to the Board, would it not? 

MR ALLEN:  Absolutely. 

MR GRIFFIN:  It would have then been prioritised at the very top of your list of things to do; correct? 

MR ALLEN:  Yes. 

MR GRIFFIN:  Can I repeat, why were the things, for example, that Ms Toohey has suggested not immediately done? 

MR ALLEN:  The Board sought assurance from the CEO that everything that could reasonably be done was being done. 

MR GRIFFIN:  Was the CEO asked, "Mr Herald, there are a certain number of participants who are the subject of criminal charges. How many participants in this program did Mr Nuumaalii have 1:1 contact with?" 

MR ALLEN:  I don't recall that those questions were asked of the CEO, no. 

MR GRIFFIN:  Was he asked to provide such a list? 

MR ALLEN:  He was asked to provide information on the number of clients that had been the subject of that abuse, yes. 

MR GRIFFIN:  Well, there's a difference between identifying those which are the subject of police investigation that meet the charges. Were you aware that there were other investigations by police that didn't meet the charges? 

MR ALLEN:  No, I was not aware of that. 

MR GRIFFIN:  And then that leaves a third group that weren't the subject of any investigation but may have been involved and were participants with him; correct? 

MR ALLEN:  Yes. 

MR GRIFFIN:  I can't fathom from your answer why in those circumstances the Board would not follow through on the things that have been suggested, except to say, "We were assured by the CEO"? 

MR ALLEN:  In hindsight, yes, clearly there was more the Board should have done. 

MR GRIFFIN:  Because the CEO wasn't giving you the assurances that we're now talking about today? 

MR ALLEN:  No, he was not. 

MR GRIFFIN:  I'm reluctant to use the word, but no audit was done as to the people that were vulnerable to Mr Nuumaalii to try and ascertain whether or not there had been further misconduct? 

MR ALLEN:  Advice from the police was very clearly that there were no other Afford participants involved beyond those that had been identified. 

MR GRIFFIN:  Did the Board then direct the executive to undertake what I might call a root cause analysis to work out what were the circumstances that led to this happening? 

MR ALLEN:  No, such an investigation wasn't undertaken, only that investigation undertaken by work site investigations. 

MR GRIFFIN:  So at the end of the day what did the Board learn from this incredibly unfortunate series of events? 

MR ALLEN:  The nature of the risks that exist for our clients and the need to be very clear with our staff about the   their requirements and the management of those risks. 

MR GRIFFIN:  Did the Board receive any information from the CEO that outlined information obtained from participants or parents about their dealings with Mr Nuumaalii? 

MR ALLEN:  Not that I recall in a formal way, but certainly advice from the CEO that he had had discussions with the families. 

MR GRIFFIN:  Was that oral advice with no Board paper to reflect that? 

MR ALLEN:  I believe that's the case, yes.

CHAIR:  Mr Allen, can I share another impression with you? 

MR ALLEN:  Yes, Chair.

CHAIR:  It does seem this Board was the captive of the CEO for years, doesn't it? 

MR ALLEN:  I don't think that was the case, but I understand the view.

CHAIR:  Well, at this stage of the CEO's tenure, the Board, in the light of the questions that Mr Griffin has put to you and the answers you have given, it appears that the Board was content with assurances from the CEO notwithstanding the gravity of the events which had occurred. It's very difficult at the moment for me to see how that can be interpreted other than a Board in effect being controlled by the CEO. 

MR ALLEN:  I'm not sure there's an answer to that.

CHAIR:  No. 

MR ALLEN:  That's a comment, Chair, and I understand the point that you're making.

CHAIR:  Thank you. 

MR GRIFFIN:  Document AFF.0005.0001.1714 is the Board Meeting Minutes of 20 May 2020. 

COMMISSIONER McEWIN:  Could you also give us the bundle and the tab number. That would be helpful, at least for me. Thank you. 

MR GRIFFIN:  The bundle E, tab 73, I understand. Mr Allen, I invite you to look at those minutes. There doesn't appear to be any reference to Mr Nuumaalii, in circumstances where this meeting occurred two weeks after his arrest. 

MR ALLEN:  There were various exchanges between   email exchanges between the Board and the CEO in relation to that incident, and it was subsequently reported in the CEO's report. 

MR GRIFFIN:  But coming back to my original question, the Board meeting two weeks after his arrest doesn't have any recorded reference to the matter at all? 


MR GRIFFIN:  That's surprising. 

MR ALLEN:  I understand your surprise. 

MR GRIFFIN:  When did you as a Board member first become aware of Mr Nuumaalii's situation? 

MR ALLEN:  I recall that the incident was reported very promptly upon advice from the police. Whether it was the same day or not, it was certainly a very quick response. The same day or the day after. 

MR GRIFFIN:  And even though there may have been email correspondence, should not such a significant event be referred to in the minutes suggesting that it had been discussed at a formal Board meeting? 

MR ALLEN:  Yes, in hindsight it should have. 

MR GRIFFIN:  That suggests it wasn't discussed at that meeting? 

MR ALLEN:  It was discussed at the meeting, to the best of my recollection. It was a matter that the Board took very gravely because of the nature of the impact on our clients, and the nature of the attending   

MR GRIFFIN:  Who was responsible for drawing the minutes of the meeting? Is that a matter for the company secretary?

MR ALLEN:  The company secretary who at that time is mentioned in the minutes, yes. 

MR GRIFFIN:  And those minutes would then have to be approved at a subsequent meeting? 

MR ALLEN:  Yes, they would. 

MR GRIFFIN:  And despite that, your recollection, there was a discussion? 

MR ALLEN:  There were a number of discussions at that time and as I've indicated, a number of email exchanges between the Board and the CEO.

CHAIR:  This is the same meeting where Dianne made a presentation on the Board on the Disability Royal Commission. 


CHAIR:  That didn't focus anybody's mind on what had happened? 

MR ALLEN:  In regard to the Nuumaalii matter?

CHAIR:  Yes. That's a pretty substantial case of abuse, isn't it?

MR ALLEN:  Yes substantial, Chair, yes.

CHAIR:  Yes. 

MR GRIFFIN:  You would have heard evidence earlier this week from Sally and Suzie and Lilly. 

MR ALLEN:  I have heard all the evidence this week, Mr Griffin. 

MR GRIFFIN:  Just to their evidence without going to the detail, was that the telephone call from Steven Herald was the only contact they had from Afford about Daniel Nuumaalii's abuse in the case of Sally, of Jason, in the case of Suzie, of her son, and in relation to Lilly, did not receive any communication from Afford about it at all. When you heard that evidence, were you surprised? 

MR ALLEN:  I was shocked, surprised and deeply saddened, and I mean that in all seriousness. 

MR GRIFFIN:  Do I take it that Mr Herald reported to the Board that he'd telephoned those three people? 

MR ALLEN:  Yes, he had. 

MR GRIFFIN:  Do you recollect what he told the Board the nature of the discussion which took place during that call? 

MR ALLEN:  I don't recall the   the detail that   that he reported on. But I would have expected   having heard the evidence, I would have expected from what Mr Herald had said that much more was done and much more was said in support of those families and our participants. 

MR GRIFFIN:  But he didn't say much more had been done. That was your expectation, was that right?

MR ALLEN:  He indicated more had been done than the families have advised in their evidence. 

MR GRIFFIN:  And is that detail of what more had been done outlined in any document that went to the Board? 

MR ALLEN:  Not that I recall. I'm sorry, I'm not trying to be evasive; I simply don't   

COMMISSIONER BENNETT:  Did Mr Herald suggest there had been an apology? 

MR ALLEN:  Yes. He said he had apologised to the families. 

COMMISSIONER BENNETT:  And we now know he hadn't? 

MR ALLEN:  Yes, we do. I would have expected that's the very least that he would have said. 

MR GRIFFIN:  Do you accept that Afford did not proactively engage with the participants of the Mount Druitt day program who were abused by Nuumaalii, or with their families about the impact of the abuse? 

MR ALLEN:  Yes, I do. 

MR GRIFFIN:  Do you accept that Afford did not provide any written communication with those people in relation to his abuse? 

MR ALLEN:  Yes, I do. 

MR GRIFFIN:  Do you accept that Afford did not provide a written apology or any form of redress to the people abused by Nuumaalii? 

MR ALLEN:  Yes, I do. 

MR GRIFFIN:  Do you consider, as of today, that Afford needs to offer redress to the victims of Daniel Nuumaalii? 

MR ALLEN:  Afford needs to quickly consider a whole range of measures in relation to the families and the suffering that they have experienced. 

MR GRIFFIN:  Even though I appreciate that answer, Mr Allen, the Board's had this knowledge for a long period of time. Why does it now quickly have to do something? Why hasn't it done something already? 

MR ALLEN:  Because the Board is much clearer about the failings of our relationship and our efforts to support those families. 

MR GRIFFIN:  But in simple terms, a Court has accepted, or a Court has convicted Mr Nuumaalii of a number of offences in relation to participants in that program? 

MR ALLEN:  Yes. 

MR GRIFFIN:  Once that conviction was recorded, what was the impediment to offer redress to each of the victims? 

MR ALLEN:  There's   there was no impediment. 

MR GRIFFIN:  Do you accept that redress can take many forms? 

MR ALLEN:  Yes, I do. 

MR GRIFFIN:  One of those forms is financial compensation? 

MR ALLEN:  Yes. 

MR GRIFFIN:  Why hasn't Afford offered financial compensation to those victims? 

MR ALLEN:  Because the organisation hasn't considered the matter of redress.

CHAIR:  And because no claim has been made on their behalf, presumably? 

MR ALLEN:  That's correct, Chair.

CHAIR:  So the organisation perhaps can be said to be waiting to see whether there's any claim made? 

MR ALLEN:  In fairness, Chair, I don't think the organisation has been waiting for that.

CHAIR:  It just hasn't   

MR ALLEN:  At the same time we haven't considered the matter of redress.

CHAIR:  So just hasn't been considered at all. 

MR ALLEN:  No, it hasn't. 

MR GRIFFIN:  What needs to be considered? Do you not have a discretion, as the Board, to make a decision? 

MR ALLEN:  Yes, we do, and there are, as you've indicated, a range of ways in which redress can be provided, and having heard the evidence of the families earlier this week, that is a matter that I will take up with the Board. 

MR GRIFFIN:  When you say having heard the evidence of the families, you have had access to their statements for a little longer than that, haven't you? 

MR ALLEN:  Yes, I have. 

MR GRIFFIN:  And the oral evidence given at this hearing has not significantly departed from what was in their statements? 

MR ALLEN:  No, it has not. 

MR GRIFFIN:  So the only   it's not only this week that this issue has crystallised? 

MR ALLEN:  No, it has not. 

MR GRIFFIN:  Has the Board considered that it might be the right thing to do to get on the front foot and apologise and offer compensation irrespective of whether a claim has been made? 

MR ALLEN:  The Board will consider that, yes. 

MR GRIFFIN:  Do you have any idea what factors the Board will take into account in that consideration? 

MR ALLEN:  Not specifically at this point. There's a range of impacts on the individuals and the families that the Board needs to take into consideration as part of that process. 

MR GRIFFIN:  So do I take it from that answer that one of the options available to the Board is to provide individualised redress in each case, as opposed to offering identical redress for each person? 

MR ALLEN:  I'm not constraining any of the options at this point, Mr Griffin.

CHAIR:  I think we saw the Report of the CEO following the Report of the death that occurred, in which he informed the Board that the insurer had been notified. Has the insurer been notified about the Mr Nuumaalii abuse? 

MR ALLEN:  I believe so, Chair. I'm not  

CHAIR:  I see. 

MR ALLEN:    completely certain but I expect that would be the case, yes. 

MR GRIFFIN:  If the Commissioners don't have any questions on that issue, I'll move on to another topic.

CHAIR:  I think I detected a shake of the head on the left but a hand is up on the right. 

COMMISSIONER McEWIN:  Thank you. Mr Allen, you said earlier in regard to the Nuumaalii situation that the police clearly advised you that they believed there were no more than the clients that they identified who had been abused by Mr Nuumaalii. 

MR ALLEN:  That's correct. 

COMMISSIONER McEWIN:  In this Royal Commission, we've heard from disabled people that they have barriers in reporting matters of abuse, including from people who are nonverbal, don't have access to communication devices. And we've heard that police often dismissed or did not pursue the matter any further, etcetera. I can go into detail but essentially the key things are not being able to report matters and police dismissed them. 

I'm not suggesting that there may have been more clients, but I'm suggesting, was it inadequate with the Board to simply accept that police advice that there were no more potential abuse persons? Do you think that's adequate? 

MR ALLEN:  No, I don't think that's adequate. There's more appropriate approaches as those that were outlined by Ms Toohey, and I deeply regret that that was not done at the time. 


MR GRIFFIN:  I'm going to move on to the issue of the evidence of Rachel and what I'll describe as the whistleblower report, the disclosure. The Board received a disclosure from Rachel which appears in hearing bundle D at tab 6, document reference IND.0071.0003.0003. Do you recall receiving that disclosure? 

MR ALLEN:  Yes, I do recall receiving the disclosure. It was forwarded to me personally. 

MR GRIFFIN:  And you heard the dulcet tones of Ms Beattie read Rachel's statement in this hearing. 

MR ALLEN:  Yes, I did. 

MR GRIFFIN:  She set a standard the rest of us are trying to emulate with no success whatsoever. 

MR ALLEN:  She certainly did. 

MR GRIFFIN:  In response to that disclosure, did the Board commission what's known as the Weir Report?

MR ALLEN:  Yes, the   in response to the receipt of the allegations, the Board did a number of things. We first engaged an independent law firm that had not worked with the organisation previously. We then engaged through Weir a separate person to be the Whistleblower Protection Officer, because under Afford's whistleblowing   Whistleblower Protection Policy, we had a pre identified Whistleblower Protection Officer, Janice McLeay. But because of the pre existing relationship between Ms McLeay and the CEO   I'm not suggesting they were friends, it's just that they had a working relationship because other whistleblower protection allegations, not involving the CEO, would have been dealt with between Ms McLeay and the CEO. 

So we wanted some independence and support for the whistleblower, and then a separate person through Weir who was engaged to, in fact, undertake the investigation. So I'm just trying to make a point. There were two separate people from Weir, one was the Whistleblower Protection Officer to support the staff member and the other was to undertake the investigation. 

MR GRIFFIN:  And the Weir Report appears at hearing bundle D at tab 7, document AFF.0005.0001.8313. Perhaps if that can be brought up. The second report, I'm told is   

MR ALLEN:  Yes, I was going to say, this is not the investigation report. 

MR GRIFFIN:  The second document is hearing bundle D, tab 9, which bears the document number of AFF.0008.0001.0103. You're familiar with that report, Mr Allen? 

MR ALLEN:  Yes, I am. 

MR GRIFFIN:  Was the Board satisfied with the comprehensiveness of that report? 

MR ALLEN:  Yes, it was. 

MR GRIFFIN:  And as a response, did the Board issue Mr Herald with a warning letter? 

MR ALLEN:  Yes, it did. A final warning letter, as I recall. 

MR GRIFFIN:  Which appears in hearing bundle D at tab 5. Given the fact that you were satisfied with the Weir Report, what steps were taken to implement the recommendations of that Report? 

MR ALLEN:  A number of steps were taken to implement those recommendations. I can't recall the details of those off the top of my head. 

MR GRIFFIN:  What we've been able to track through, Mr Allen, is that the Business Improvement and Quality Systems Update and Register which appears at hearing bundle E, tab 113C, document AFF.0005.0001.4226 at page 4329 shows that the recommendations in the Report were identified for further action, as you've indicated, but no time frames were allocated to many of those recommendations for the implementation. Do you agree? 

MR ALLEN:  Yes. I accept I can't   my vision is a little impaired and I can't see exactly that, but I accept that that's the view. 

MR GRIFFIN:  And on 20 February 2020 Rachel emailed you, I believe, at hearing bundle E, tab 269, document number AFF.0005.0001.8055, saying she has been bullied by the CEO and that now vexatious and frivolous complaints being made against her, and she refers to Steven Herald not acting on the concerns she had raised about compliance. Do you recall receiving that email? 

MR ALLEN:  Yes, I do. I had a number of conversations at the time. 

MR GRIFFIN:  After receiving   thank you. After receiving that email on 20 February 2020, what did you do to protect her? 

MR ALLEN:  I spoke with Rachel directly, as I had done on a number of occasions from the time that she lodged the allegations. And I also followed up with her Whistleblower Protection Officer as well. 

MR GRIFFIN:  Did you have any discussions with Mr Herald as a result of receiving that email? 

MR ALLEN:  I had discussions with the then Chair about that email. 

MR GRIFFIN:  And do you understand whether or not he had discussions with Mr Herald? 

MR ALLEN:  I believe he did. 

MR GRIFFIN:  And then subsequently on 5 March did Rachel send you an email raising a formal grievance against the CEO? 

MR ALLEN:  Yes, she did. 

MR GRIFFIN:  In the response provided by Afford to the Commission, the notice to give information, that's AFF.0012.0003.0022 at .0022, paragraph 6:

"Afford asserts the Board was not aware that Mr Herald had commissioned a report from Barry Wise to investigate allegations against Rachel."

Is that the fact? 

MR ALLEN:  That's correct. The Board did become aware when Rachel raised that matter with myself. 

MR GRIFFIN:  Now, if the CEO has commissioned an independent report concerning the conduct of another senior executive, would you, as a Board member, have expected to be advised of that? 

MR ALLEN:  If it was one of the CEO's direct reports, I would have expected at the very least that that would have been raised with the Chair. 

MR GRIFFIN:  Because? 

MR ALLEN:  Because the functioning of the executive   the executive team, those people reporting to the CEO, is a matter that Boards should have some oversight of. 

MR GRIFFIN:  And it raises a concern, doesn't it, that the CEO might be seeking a report into the person who made the disclosure as a form of retaliation? 

MR ALLEN:  It could seem that way, yes. 

MR GRIFFIN:  But it was clearly a possibility, wasn't it? 

MR ALLEN:  Yes, it was. 

MR GRIFFIN:  In those circumstances, given the allegations made against Mr Herald, why didn't the Board direct him to quarantine himself completely from the issue? 

MR ALLEN:  My understanding is that a verbal direction to that extent was provided. 

MR GRIFFIN:  Are you aware of anywhere where that direction is in writing? 

MR ALLEN:  No, I'm not. 

MR GRIFFIN:  With the benefit of hindsight, confronted with that situation again, should that action be taken to quarantine the CEO from any involvement in relation to it   the complaints? 

MR ALLEN:  That option should be seriously considered, yes. 

MR GRIFFIN:  And the reason for that is whistleblowers place themselves in a very vulnerable position, don't they? 

MR ALLEN:  Yes, they do. 

MR GRIFFIN:  Particularly in circumstances where their complaint concerns a superior? 

MR ALLEN:  That's correct. 

MR GRIFFIN:  And one of the roles of Afford in that situation is to step in and protect the whistleblower because of the power imbalance with the person being complained about? 

MR ALLEN:  Yes. But there was no evidence that the then CEO was aware of the whistleblowing complaint having been made, that at that time there was clearly a breakdown in the relationship between the then CEO and his senior staff member. 

MR GRIFFIN:  Ms Toohey, if confronted with a similar disclosure today, what response would you have as a matter of process? 

MS TOOHEY:  Well, I'm used to whistleblower alerts going directly to the Board, so the Board actually makes a decision about the response to the process, which is as it should be to protect the staff members involved. I think it would have been hard through the investigation for the ex CEO not to have some indication through the interviews of where some of the concerns might have come from, when you read through the investigation report, given some of the correspondence that had gone on between the previous CEO and that senior staff member prior to. 

MR GRIFFIN:  By that, do you mean it's not difficult by a process of deduction to work out who the whistleblower is?


MR GRIFFIN:  If you're an insider yourself. 

MS TOOHEY:  Exactly, yes, particularly if there's correspondence if the issue concerned. It makes it very hard   it would have made it very hard for the Board even to have protect the senior staff member from   from, you know, being known as the whistleblower. The ex CEO should not have initiated the investigation into the ex senior member without consultation of the Chair, and if there was to be an investigation because of concerns then it would have been better being commissioned by the Board itself as opposed to the CEO given the whistleblower alert that occurred previously. 

MR GRIFFIN:  Do you agree that the action of the CEO in commissioning that report was both improper and displayed a lack of judgment? 

MS TOOHEY:  I do. 

MR GRIFFIN:  A lack of judgment to the extent that you would expect much more of someone holding the position of CEO? 

MS TOOHEY:  I would. 

MR GRIFFIN:  In your experience, Ms Toohey, have you ever come across a whistleblower who's had their career advanced by being a whistleblower? 

MS TOOHEY:  No. No. 

MR GRIFFIN:  It's a fundamental problem of the system, isn't it, that someone who has the courage to come forward is rarely rewarded. Would you agree with that general proposition? 

MS TOOHEY:  Generally, yes. 

MR GRIFFIN:  And that's another reason why it's so important to protect them. 

MS TOOHEY:  It is. 

MR GRIFFIN:  Under the current policy of Afford, are you comfortable that someone in a position of a whistleblower could be   I won't use the word "afford" but could be given sufficient protection in those circumstances? 

MS TOOHEY:  Yes, I am. Yes, I am. 

MR GRIFFIN:  In your reading about these issues, were you aware of any exit interview in relation to Rachel? 

MS TOOHEY:  No, I haven't seen anything of that nature. 

MR GRIFFIN:  In those circumstances, in your view, would it be a good procedure if the person decided to leave the organisation to discuss at length why with them? 

MS TOOHEY:  It certainly would be, but I do understand that Mr Allen and the senior staff member had numerous conversations. 

MR GRIFFIN:  Yes. Are they recorded anywhere? 

MR ALLEN:  Generally if we'd had a conversation of substance, I would have recorded that in an email that I sent to confirm the nature of the discussions with Rachel. I did ask her if she wanted to participate in an exit interview. I didn't record that but she did decline. It was one of the areas that I discussed at that stage in fairness. She just wanted to get away.

CHAIR:  Mr Allen, you referred to the former CEO receiving a final warning as a result of that, what I'll describe as the first investigation into his conduct, because there were at least two. 

MR ALLEN:  Yes, there was  

CHAIR:  Why was there a final warning? What did you mean by "final warning" or what did the Board mean by "final warning"?  Was there a previous warning? 

MR ALLEN:  No, there wasn't a previous warning but it was the combination of a number of considerations for the Board, principally the outcomes of the investigation, but other more general related concerns.

CHAIR:  I see. Thank you. Yes. 

MR GRIFFIN:  Rachel's disclosure didn't only relate to Mr Herald, did it? 

MR ALLEN:  No, it did not. 

MR GRIFFIN:  In relation to the non Herald part of the disclosure, what did the Board do in relation to the other issues she raised? 

MR ALLEN:  A number of measures were taken. One of the areas that was identified in the allegations was around reportable incidents and an audit was requested of the CEO of reportable incidents. 

MR GRIFFIN:  Chair, tentatively that concludes my examination, but given the time I was wondering whether we might adjourn for lunch and I have the opportunity to speak to those instructing me as to whether there are any other issues they wish me to canvass. Would that be an acceptable procedure?

CHAIR:  That would be acceptable if we can't finish immediately. 

MR GRIFFIN:  I just don't want to have buyer's remorse, Chair.

CHAIR:  Alright. It's now 1.50. I take it that you have completed your examination? 

MR GRIFFIN:  Subject to  

CHAIR:  So the idea is not that Ms Toohey and Mr Allen are excused. They may be needed after lunch? 

MR GRIFFIN:  Can I put it this way, that I don't want them excused at the moment, but if I come to the view shortly into the luncheon break that I have nothing else, then subject of course to whether Mr Watson or anyone else has questions, they could in those circumstances be released.

CHAIR:  Alright. Then what we will do is adjourn. But I will just give the Commissioners an opportunity if there are any other questions they wish to ask of either Ms Toohey or Mr Allen. Commissioner Bennett. 

COMMISSIONER BENNETT:  Ms Toohey, you earlier referenced changes which you're bringing about. 


COMMISSIONER BENNETT:  And obviously some of those   you have an area of safeguarding. Some of your clients will be going from group home to day program, back to group home. One congregated setting, one segregated setting. How are you going to,for those that   some people who may not be verbal as Commissioner McEwin said, how are you going to bring in your safeguarding, some sunlight independent of Afford so that there are   whether it's volunteered or maybe advocates in the disability sector to actually see and be able to have the interest of that participant at their forefront? 

MS TOOHEY:  That will certainly form part of the overall framework. I mean, I think it's   for me it's important for the organisation to have independence in terms of an independent function to make sure that, you know, I can sleep at night satisfied. But it's also important to get an external view as well. I mean, part of, you know, part of our role is to ensure that, in fact, our participants have access to advocacy, you know, it's   so   

COMMISSIONER BENNETT:  And how do you do that, particularly those people with disability that I'm referring to. How do you give them access? 

MS TOOHEY:  Well, I think you can connect them up to different appropriate advocacy organisations, and whether or not that's through volunteering as you said, whether or not, you know, that's by connecting them up to other external groups. I mean, I think, you know, one of the things that happens in Afford is that we do have a number of our participants who, in fact, you know, attend our employment services, who might live in our homes, who might go to the day programs. 

One of the issues we currently have with the old structure which is just being addressed now is that we don't have   we don't have a end to end view of what someone's experience is like with us, because we have different management structures that look after each of the different components of their journey with us. I think even just us having   having visibility over what someone's end to end experience is like means that we can, in fact, then better meet the needs of participants who are, in fact, in our care. 

COMMISSIONER BENNETT:  But that would still be an Afford view of what's happening to that. 

MS TOOHEY:  Sure. 

COMMISSIONER BENNETT:  I'm trying to get something concrete about, how do you give these people external support? Particularly those that may not be returning to their family in an evening or on a weekend? 

MS TOOHEY:  I'll have to   I'll have to take that on notice. 

COMMISSIONER BENNETT:  I'd be very interested in hearing your views. 

MS TOOHEY:  Yeah, I'd like to give some thought into that, yes. 

COMMISSIONER McEWIN:  Just one question at this point. Ms Toohey, in your written statement, which I assume you have in front of you? 


COMMISSIONER McEWIN:  4.9, can I take to you 4.9, clause (f).  This is on page 5. I'll just read it out:

"The establishment of a structure that supports further user requirements within the Australian Disability Enterprise."

In this Royal Commission, we've heard a lot, particularly from disabled people who want to work in open employment. What steps are you taking at Afford to ensure that they can achieve that goal, and perhaps even transition out of, say, an ADE? 

MS TOOHEY:  So we actually   we actually work with participants in three different areas. One is the ADE. We also have the DES, the Disability Employment Services, where we are supporting people to work in open employment. And we also do the school leaver's program, so we work quite closely with schools and school leavers and that is trying to transition people as much as possible through to open employment.

One of the things we've been talking about is this   this move away from that sort of congregate employment environment. And so a number of our participants, I think as I alluded to yesterday, some of them are actually in management roles within the ADEs currently. And the goal is, in fact, about   is always about trying to get through into open employment.

One of the things that happens culturally at the moment is that we don't see our supported employees, who are, in fact, actually   many of them actually love working for Afford. It's   they like the friends. They like the social connection they have. They actually love being part of the organisation. But viewing people as supported employees is just   instead of just viewing people as employees of Afford then means that what we're doing is petitioning that group of employees to a particular workplace rather than actually giving them other career opportunities. 

So one of the things I've done within the new Executive Director of People role, for example, is I have a very strong focus both in her role, in our learning and development   new learning and development team as well, around career progression. So whether that's with us or whether or not that is then with us using our other employment services to move people on to open employment, but it's about us actually viewing those employees as actual Afford employees, so they have exactly the same opportunities as any other staff member in the organisation. It's a bit of a journey for us. It will be a bit of a journey. There's been a very traditional way of working for quite some time.


CHAIR:  I'd just like to clear up something I didn't quite understand from Mr Adamson's evidence. I appreciate that you can't speak, Ms Toohey, as to the circumstances prior to your engagement as the CEO. The situation is where, in the day program, for example, it is ascertained that the participant needs rate a support, maybe moving from one to three to one to one. In order for that to happen, as I followed the evidence, there has to be an application to the NDIA in the ordinary circumstance in order to get the funding that enables this to occur. That involves a delay. 

What I'm not   I wasn't clear about from Mr Adamson's evidence, but just concentrating on what happens now, what does happen now in that intervening period, and how long is it normally? 

MS TOOHEY:  I can't comment on the length of time it is normally, but in many circumstances, and, in fact, it would be the majority of circumstances, the organisation previously and still continues to provide the necessary support that's required. So even while the organisation, and we would not be alone in the sector with this because we can't just suddenly turn off the supports that are required or not provide what actually might be required if it's an increasing staff ratio, for example. 

So if someone was increased, needed support from a, say, three to one ratio, we would provide that while we were waiting nor the plan to be reviewed and for the funding to be increased. We wouldn't just not provide the required supports, regardless of whether we are receiving funding for it at that time.

CHAIR:  And assuming that the NDIA approves the amendment to the plan or a fresh plan  


CHAIR:    that requires funding, can that in practice be retrospective to cover the period?

MS TOOHEY:  It can, yes. 

CHAIR:  So that Afford, in effect, can be reimbursed for their money that is it has laid out in that intervening period. 

MS TOOHEY:  That's right.

CHAIR:  I see. Alright. Thank you. Can I ask please Ms Toohey when you first became aware of the Wise Report. You know the one that I'm referring to? 

MS TOOHEY:  Just refresh my memory of the Wise Report.

CHAIR:  That's in relation to the circumstances relating to the abuse. 

MS TOOHEY:  The Nuumaalii report. That would be actually about November.

CHAIR:  Sorry?

MS TOOHEY:  That would be about November '21, last year, so I'd only been in the organisation for a couple of weeks.

CHAIR:  That's when you read the Report. 

MS TOOHEY:  Yes. I was reading quite a few.

CHAIR:  You told us a little earlier that the changes relating to mobile phones came in three months ago approximately. Reading that report, it would seem   at least, it would seem to me, fairly obvious that there was a major problem with the way phones were used. Why, reading that report, wouldn't there be a change immediately?

MS TOOHEY:  Look, to be honest, I had made the assumption that the actions from the Report, because it was over   you know, quite some time ago  

CHAIR:  Yes. 

MS TOOHEY:    I had made the assumption that the actions required had actually already been implemented in the organisation.

CHAIR:  Alright. Thank you. The second report on the previous CEO   this may be for Mr Allen   the one that was actually completed after the previous CEO had resigned, was that report provided to the NDIS Quality and Safeguards Commission? 

MR ALLEN:  I'm not clear, Chair, I'm sorry. I can't recall whether it was or it wasn't.

CHAIR:  Alright. And   

MR ALLEN:  I will check.

CHAIR:  Sorry.  Yes.

MR ALLEN:  I will check, yes.

CHAIR:  Alright. If you wouldn't mind. And just one more question, Ms Toohey, I wasn't quite clear as to the precise status of the business improvement plan. Where has it reached, and if it hadn't been   

MS TOOHEY:  It has been approved by the Board. It has gone to the Quality and Safeguards Commission as I said I would do in my meeting with them, and that was sent prior to the correspondence that I received from the Registrar last week, and it's now been broken down into individual unit plans. So it's the plan by which myself and the executive and senior leadership team will be measured for the next 18 months.

CHAIR:  I see. Alright. Well, thank you very much. Mr Griffin, you're looking like you're going to say anything. 

MR GRIFFIN:  In the interim I have had discussions with my colleagues and there is no further issues I wish to raise, so that formally concludes my examination of these witnesses.

CHAIR:  In that case, thank you very much, Ms Toohey and Mr Allen, for giving evidence. 

MR WATSON:  Fortunately, I don't have any questions. There hasn't been a formal denial of procedural fairness or a material denial. No questions from us.

CHAIR:  Thank you, Mr Watson. Thank you for your assistance. 

COMMISSIONER McEWIN:  Chair, if I can be indulged, I have one more question relating to your question about the business improvement plan. Ms Toohey one final question from me is at 4.34 where you refer in your witness statement about the business improvement plan, clause C says that you will be:

"Engaging with service users to provide feedback and insight into Afford's current model and co design of new model."

What do those new models include? Can you briefly describe that? 

MS TOOHEY:  That's actually the way we provide our residential environments and our day programs and our employment services, so it's actually about all of your service delivery. 

COMMISSIONER McEWIN:  Would that include transition, as I asked earlier, about transition to mainstream settings  

MS TOOHEY:  Yes exactly.

COMMISSIONER McEWIN:    inclusive activities in the community for them. Alright. Thank you.

CHAIR:  Thank you very much and, in addition to our thanks for your giving evidence, Ms Toohey, you have a big job. 

MS TOOHEY:  Thank you.


CHAIR:  Shall we now adjourn. 

MR GRIFFIN:  Do you wish to proceed with closing discretions. We can do that after lunch. 

CHAIR:  We can now finish, because you've decided you don't need any further deliberation. 

MR GRIFFIN:  Correct.

CHAIR:  Right.  In that case we can proceed to directions.  Ms Toohey and Mr Allen, you can notionally step down, although it's on the same level. 


CHAIR:  And now we will deal with the directions. As I understand it, these directions have been discussed with the parties given leave to appear? 

MR GRIFFIN:  That's correct, your Honour. 

MR WATSON:  I would think that was sensible.

CHAIR:  Mr Watson, you're doing extraordinarily well. The directions that are to be made are these.

1. Any witness who took questions on notice during this hearing should provide his or her answers in writing to the Office of the Solicitor Assisting the Royal Commission by 10 June 2022. The answers should be targeted and concise and not address additional or unnecessary matters. Counsel Assisting the Royal Commission may tender those responses into evidence. 

2. By 17 June 2022, Counsel Assisting the Royal Commission will provide a list of all documents he wishes to tender into evidence, including responses to questions on notice on a confidential basis, to the parties with the leave to appear at this hearing. 

3. Parties with leave to appear should advise the Office of the Solicitor Assisting by 27 June 2022 if they wish to suggest any additional documents for tendering by Counsel Assisting. At the same time, they should identify any parts of the documents to be tendered that they consider need to be removed before the documents are made public, with reasons. 

4. Counsel will tender those documents into evidence which he considers appropriate and he will do that in chambers by 6 July 2022. 

5. Counsel Assisting the Royal Commission will prepare written submissions following the hearing by 5 August 2022. These submissions will be provided on a confidential basis to parties with leave to appear and to any person or organisation necessary for reasons of procedural fairness. 

6. Any responses to the Counsel Assisting’s submission should be sent to the office of Solicitor Assisting by 26 August 2022. Those responses should be concise and should not include any additional evidence. After receiving all written submissions there will be a short hearing for oral submissions which will be scheduled in due course on a date to be determined. 

They are then the directions that I make and I will note, although this is not part of the directions, that as indicated at the outset, the intention is to prepare a Commissioners' report in respect of this hearing in due course. 

MR GRIFFIN:  And that Afford can probably expect from us correspondence in relation to an update later in the year.

CHAIR:  Yes. That may also form part of any report that is prepared. Alright. Well, thank you very much. 

MR GRIFFIN:  Chair, can I take a moment just to say some thanks.

CHAIR:  Yes. Please do. That was what I was about to do but you go first. 

MR GRIFFIN:  Firstly to the witnesses who had the courage to come forward. Secondly to the legal representatives of those witnesses, their advice and support is crucial and acknowledged by the Commission. And thirdly, to the legal representatives of the Commonwealth of Australia and Afford.  The Commission has required of them responses to many questions and the production of voluminous documents in preparing for this Public hearing, and I acknowledge their professionalism and good humour in undertaking that task. 

I will reserve my comments about Counsel Assisting and the OSA team for a private setting.

CHAIR:  Yes, thank you very much. I won't repeat what Mr Griffin has said, except to say I have no knowledge of any sense of humour on the part of any body within the legal profession but no doubt what Mr Griffin has said is entirely correct. 

I want to express our appreciation to all of the witnesses who have given evidence, but particularly to Sally, Lilly, Suzie and Rob. They are respectively, the mother of Jason, the mother of Simon and the parents of Toby. It's not easy to come to the Royal Commission and recount the experiences that they have had, and that in this case their sons have had, given the circumstances that have occurred. We appreciate very much their preparedness to come to this forum and to tell us of their experiences, which are of extreme importance to us and not least because they illustrate the sorts of systemic issues that this Royal Commission has to address so that these events do not recur for people in a similar situation. 

I also want to particularly express our appreciation to Dianne, Erynn and Rachel. Each of those persons has provided invaluable information to the Royal Commission and that information is, again, of great importance to the work that we have done, or will do, and it also reflects very considerable courage on their part to be prepared to do so, and we express our appreciation for them, and we also express our appreciation for the other witnesses. 

I wish to express appreciation on behalf of the Commissioners to Counsel Assisting   all Counsel Assisting for their contributions, and as Mr Griffin has said, there is a great deal of work that goes on behind the scenes and the legal representatives of the parties participate in that. This has been a hearing that we fortunately have been able to conduct in person, with people who wish to come to the hearing being able to hear what goes on and to observe the Commission in action, as it were. 

In order for a hearing like this to be organised, it takes an enormous amount of work. It requires great skill, organisational ability. This Royal Commission has particular demands on it, such as the provision of support to witnesses with disability or families or supporters of people with disability who give evidence, and we're very fortunate to have teams within the Royal Commission who do that work superbly. 

We have a number of the branches within the Commission that all one way or another contribute to these hearings. Nobody should underestimate the amount of time and the resources that go into preparing the hearing. And the hope that I express is that the evidence we have heard and that has been presented in such a systematic fashion will ultimately result in recommendations that do what our terms of reference contemplate, and that is protect people with disability from violence, abuse, neglect or exploitation. 

So thank you to everybody who has been involved and thank you also to those outside the Royal Commission, such as Law in Order who provide the IT support and to others outside the Royal Commission who assist with the preparation for and conduct of the hearing. We shall now adjourn. 

The next hearing of the Royal Commission   someone will tell me. No, they won't. Yes, public   I know it's on education   Public hearing 24. I'm going to take a guess and I think it's from 6 to 10 June in Canberra; am I right? Commissioner McEwin, who knows these things, confirms it. The official secretary has lifted his thumb from a distance. I am, therefore, confident that that is correct. So we adjourn until Public hearing 24 takes place on 6 June in Canberra. Thank you.