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Public hearing 30 - Guardianship, substituted and supported decision-making - Day 1

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CHAIR: Good morning, everyone. Welcome to the 30th Public hearing of the Royal Commission Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. This Public hearing is concerned with guardianship, substituted and supported decision making. And the hearing is being held at the Novotel Sydney Olympic Park Hotel in Sydney, and it will take place over five days during this week. And as I've just indicated, the hearing will address the experiences of people with disability with guardianship, administration and substituted and supported decision making. 

We commence with an Acknowledgment of Country. We acknowledge the traditional custodians of the lands on which we are gathered today, the Wangal people. We pay our respects to their elders past, present and emerging. We also pay our respects to any First Nations people who are participating in or following these proceedings. 

I'm joined this week in the Sydney hearing room by Commissioners John Ryan AM on my left and Commissioner Alastair McEwin AM on my right. Senior Counsel Assisting the Royal Commission at this Public hearing is Ms Kate Eastman AM SC. She appears with Ms Catherine Gleeson and Ms Winnie Liu of Counsel. Ms Eastman will shortly make an opening statement. Several parties have been given leave to appear at this hearing and I will invite their legal representatives to announce their appearances shortly. 

This Public hearing will examine the experiences of people with disability, particularly people with intellectual disability or cognitive impairment and the guardianship and administration regimes enforced in the Australian states and territories. We shall hear evidence from people who have been subjected to guardianship or administration orders and thereby deprived, in whole or in part, of the right to make their own decisions on matters affecting their daily lives. 

It might be useful to commence with an explanation of some terms that we will hear quite frequently during this week. Guardianship and administration orders are legal decisions made by courts or tribunals that can allow a nominated person or institution to make decisions on another person's behalf. Guardianship orders can cover decisions about a range of personal matters, including where a person lives, the services provided to that person, healthcare and other day to day matters. Administration or financial management orders authorise decisions about financial matters. 

A guardian or administrator can be a partner of the person, a family member or friend of the person with disability, or someone who has some other connection with that person. As a last resort, a public official may be a pointed as a guardian or administrator. These officials have a range of different names in the states and territories, but they are usually designated as Public Guardians or Public Trustees. 

Substitute decision making refers to processes and regimes that involve one person making decisions on another person's behalf, thereby removing legal capacity from the person on whose behalf decisions are made. A substitute decision maker can be appointed in certain circumstances against the will of the person who is subjected to the regime. Decisions can be based on a judgment by a decision maker, such as a tribunal, as to what is in the best interests of the person concerned instead of giving effect to the person's own will and preferences. 

Supported decision making refers to processes that assist people to exercise their own autonomy and legal capacity by supporting them to make decisions about their own lives. As those who have been following the Royal Commission will know we pay particular attention to the provisions of the Convention on the Rights of Persons with Disability, the CRPD. The article of the CRPD with most relevance to this particular hearing is Article 12. It provides as follows, and I will quote its terms: 

"1. States parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 

2. States parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 

3. States parties shall take appropriate measures to provide access by persons with disabilities to the support they require in exercising their legal capacity."

And finally: 

4. States parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free from conflict of interest or undue influence and are proportional and tailored to the person's circumstances and also apply for the shortest time possible and are subject to review by a competent, independent and impartial authority or judicial body.” 

Let me provide a little background, and Ms Eastman will provide considerably more. The Royal Commissioners received 371 submissions on the subject of guardianship and supported decision making. Many of these submissions criticise the operation of the guardianship and administration regimes in force in the Australian states and territories. The submissions have referred, among other things, to the frequency with which people with disability are subjected to orders which deny their capacity to make their own decisions. 

Instead of these substitute decision making orders being made as a last resort after all other options have been considered, orders are frequently made by courts or tribunals in circumstances where the person with disability, given appropriate supports, is quite capable of making decisions affecting their own lives, including financial decisions. 

We will hear evidence during this week about the importance of assisted decision making, in particular from Ms Justine O'Neil, the Chief Executive Officer of the Council for Intellectual Disability. She points out in her statement that, without support, a person with intellectual disability might lose their decision making rights, either formally or informally. She explains that the challenge is to maximise the number of persons who get the support they need to be fully involved in their own decision making. Ms O'Neil identifies the difficulties in the path of building the decision making capacity of people with intellectual disability and makes suggestions to address these difficulties. 

It's important to appreciate that guardianship and administration regimes have attracted a great deal of attention in recent years by law reform bodies and, in some cases, by Australian legislatures. In the past decade, the Australian Law Reform Commission and law reform bodies in New South Wales, Victoria, Queensland, Tasmania, and the ACT have all conducted careful reviews of the existing legislation in their particular jurisdictions and proposed reforms to the legislation. 

As recently as three weeks ago, the South Australian Law Reform Institute released a 400-page report reviewing the operation of the Ageing and Adult safeguarding Act 1995 of South Australia. Some of this work has borne fruit. For example, the Guardianship and Administration Act 2019 in Victoria comprehensively reformed the law of guardianship and administration in that state. In the second reading speech for the legislation, the then Attorney General of Victoria explained that the bill drew not only on the work of the Victorian Law Reform Commission's report on guardianship, but also drew on the CRPD, the Australian Law Reform Commission's report and other Victorian legislation that had been reformed prior to the 2019 Act. 

This hearing will not examine the various law reform proposals; however, the Royal Commission is carefully considering all the reports together with the legislative reforms that have been enacted with a view to informing the contents of our final report which is due in September 2023. We have borne in mind the direction in our Terms of Reference to have regard to the findings and recommendations of previous relevant inquiries and reports. 

We will be taking into account general principles derived mostly but not entirely from work done by other bodies or from legislation that is already in force in some Australian jurisdictions. Without in any way being exhaustive, the principles will include the following: First, a person with disability who may require support to make decisions should be provided with appropriate support to enable that person, so far as practicable in the circumstances, to make and participate in decisions affecting them, express their will and preferences and develop their decision making ability. 

Second, legislation should recognise and respect the role of informal supporters and support networks that provide supports for decision-making. Thirdly, the powers, functions and duties under legislation should be carried out and performed in a way which is the least restrictive of the person a freedom of decision and as   it imposes as few constraints as possible in the circumstances. And, fourthly, legislation should recognise the presumption that a person has decision-making ability, including the provision of relevant and appropriate support when needed and that this presumption couldn't be rebutted simply on the basis of disability. 

Ms Eastman will shortly outline the evidence that is to be presented at this hearing during the five days. The issues that will be addressed during the hearing, include the reasons why substitute decision-making and guardianship and administration orders are often resorted to before models of supported decision making are utilised. Secondly, the barriers to implementing supported decision making, such as the person with disability lacking a network of available supports. 

Thirdly, the safeguards necessary to reduce, so far as possible, the abuse or exploitation of people with disability by substitute decision makers. Fourthly, the challenges experienced by people with disability who wish to resist or free themselves from guardianship or administration orders. And, finally, capacity building measures for people with disability to allow them to make their own decisions. Ms Eastman will explain other issues that will be considered during the course of the hearing. I shall now take appearances. 

MS EASTMAN: Thank you, Commissioners. I appear with Ms Catherine Gleeson and Ms Winnie Liu. 

CHAIR: Thank you, Ms Eastman. I will take appearances first from any legal representatives in the room at present. So if they could announce their appearances in a similar order, that would be helpful. 

MR SEFTON: May it please the court, my name is Sefton. I appear with Ms Buller on behalf of the State of Western Australia. 

CHAIR: Thank you very much. 

MR REDWOOD: May it please the Commission, my name is Redwood and I appear with my learned friend Mr Dighton for the Commonwealth. 

CHAIR: Thank you. Are there any other appearances within this room? If not, I will move to appearances remotely, starting with the State of New South Wales. Is there an appearance for the State of New South Wales? Apparently not. Do we have an appearance from the New South Wales Trustee and Guardian? 

MS NEEDHAM: Yes, may it please the Commission, my name is Needham, and I appear for the New South Wales Trustee and Guardian. 

CHAIR: Yes, thank you, Ms Needham. I think that I can see Ms Furness now. Can I? Ms Furness, last time I suggested you were on mute, you suggested it wasn't you, it was us. So, I don't know who's at fault, but we can't hear you. 

MS FURNESS: Well, I   you can hear me now? I'm unmuted at my end is all I can say. 

CHAIR: We will deem you to have made an appearance. Thank you very much. Is there an appearance for the State of Queensland? 

MS McMILLAN: Yes, good morning, Chair. My name is McMillan, initials K, King's Counsel, and I appear instructed by Crown Law. 

CHAIR: Thank you, Ms McMillan. An appearance from the State of Victoria? 

MS BEDFORD: May it please the Commission, my name is Rebecca Bedford, and I appear for State of Victoria. 

CHAIR: Thank you very much, Ms Bedford. An appearance for the Office of the Public Advocate of Victoria? No. An appearance for the State Trustees of Victoria? No. And we've had an appearance from Western Australia. Are there any other appearances? Thank you very much. I will now ask Ms Eastman to make an opening statement. 

MS EASTMAN: Good morning, Commissioners. Counsel Assisting also acknowledge the traditional custodians of the lands on which we are meeting today and across Australia. We pay our respects to First Nations elders past, present and emerging, as well as to all First Nations people at this Public hearing. 

Commissioners, there are a significant number of people in the hearing room today, and I acknowledge their presence, and I also acknowledge that many people attending today are coming to this hearing because it raises real and significant issues that have touched their lives. Over the next five days, the Royal Commission will listen to the experiences of people living with cognitive disability and their families about what happens to a person's life when someone else makes decisions for them. This is called substitute decision-making. 

They will tell you what about what their day-to-day lives are like when people make decisions about where they live, how and when they spend money, about medical treatment and medical procedures, decisions about legal matters such as making a will or contracts, and, in some cases, when and how they can access supports and services. They will tell you about the impact on their life, their privacy, their right to speak out about their experiences, the loss of freedom, the loss of family, friendship, and community and, for First Nations people, separation from culture and country. 

You will hear about the loss of autonomy and the barriers to proving capacity. Commissioners, this week you will hear a lot about capacity. It's in every   in its everyday use capacity means a person's ability to do a particular task or activity. For this hearing, when we talk about capacity it has a particular legal meaning. Capacity describes both legal standing and legal agency. Legal standing is the ability to hold rights and duties and be recognised as legal persons. Legal agency is the ability to exercise these rights and duties and to do things that have legal effects. For young people and adults, legal capacity means a person's ability to make decisions about their lives. 

This week you will hear about how a person's capacity is assessed, concepts of fluctuating capacity and changes in a person's capacity as they age or experience trauma or illness. You will hear that legal capacity should not simply be equated with mental capacity, and you will hear that people with cognitive disability should not be assumed to have limited legal capacity in the sense of being able to exercise legal agency. 

So, Commissioners, as you have heard already, there likely to be many legal words and jargons used in the hearing and over the course of this week. So we have prepared a glossary of terms to explain the means of these words and describe the concepts. It's presently available on the Royal Commission's website in relation to this hearing, and people are welcome to download and to use the glossary as we discuss a lot of legal and tricky concepts during the course of this week. 

Commissioners, historically, society and legal systems have worked to protect people who do not have capacity, including children and people who live with cognitive disability or mental illness. Within the justice system, sometimes Supreme Courts in states and territories use a power known as "parens patriae". It's a Latin expression and it simply means "parent of nation." It is also known as a protective jurisdiction. And with respect to children, judges may substitute parents' wishes and make decisions to protect a child. 

For adults who are found to be incapable of managing either their personal or financial affairs, a judge may make orders to protect the person. This accepted, a parens patriae power should be exercised only in exceptional circumstances. These powers have been used by judges to make decisions that at times have had profound and significant impact on the lives of people with disability. 

Just to mention one area. Commissioner, will you recall Ms Carolyn Frohmader and Dr Linda's Steele's evidence at Public hearing 17 last year. They spoke about parens patriae power being used to authorise medical procedures with respect to women's reproductive rights. They referred to decisions where judges exercised the power to allow irreversible sterilisation of young women living with an intellectual disability. And these powers have been authorised to allow the termination of pregnancies of women with intellectual disability. 

The Federal Circuit and Family Court of Australia also exercises these functions with respect to children, and, for example, in 2018 the Family Court agreed to an application of the mother of a 17 year old girl who lived with intellectual disability for a non consensual sterilisation. For adults, with the development of specific guardianship and administration laws, the tribunals in each state and territory make such decisions and appoint guardians and administrators to make decisions for people who are found not to be capable of their own decision making. 

At this hearing, we will examine the way Western Australia, Queensland, Victoria, and New South Wales guardianship and administration laws work. Can I acknowledge in preparation for this hearing, we had the opportunity to speak to people across Australia, and so there are some jurisdictions who are not included in this week's hearing, but we are indebted and thank residents of those jurisdictions for their assistance in our preparation for the hearing. 

Commissioners, there is no national uniform guardianship or administration law in Australia. So, broadly speaking, for a person with disability who lacks capacity, it's the state and territory laws that will operate in relation to their circumstances. In general, if a guardianship order is made, then it may be either by way of a private guardian, a family member or other person, or, as a last resort, a public guardian who has the power to make some or all decisions for the person. 

Subject to the scope of the orders, a guardian decides where a person lives, what supports they receive, healthcare matters, the use of restrictive practices, who they can have contact with, and a range of day to day issues. If administration or financial management orders are made, another person will manage their financial affairs of a person. Financial management includes making legal decisions about financial affairs and property, and the administrator may be another person or, in some cases, the public or state trustee. 

A key pillar of guardianship and administration law is that these orders are only to be provided or made as a last resort and to be done in the least restrictive manner. With some exceptions, a guardian or an administrator's decision making is guided by the best interests of the person. The concept of best interests is a feature about how decisions are often made around children. One issue you will be examine this week will be whether a best interests approach for adults with disability is appropriate or whether guardians and administrators should apply an approach based on a person's will and preferences, which is more consistent with human rights. 

Commissioner McEwin, in this context, you alerted the Royal Commission to these concerns at the very first hearing of this Royal Commission. And you said this: 

"For far too long, people with disability in Australia have been denied the right to make their own decisions with appropriate support. For far too long, people with disability have been denied the dignity of risk and the freedom to choose how they live their own lives with independence. Our society cannot be allowed to protect people with disability to the extent that they cannot choose to live their own lives as they wish and to experience the consequences of those choices. We must avoid protectionism to the point of not allowing people with disability to take risks as any person would expect to do so in our society.” 

And, Commissioner, with those words, you summed up the tension between dignity of risk and the application of best interests. 

Commissioners, the Australian Guardianship and Administration Council represents state and territory government agencies that have a role in protecting adults in Australia who have decision making responsibilities for people with disability. The membership includes public guardians, public trustees, public advocates, and guardianship tribunals. The Council's annual reports record the data on guardianship and financial administration applications, and also orders made across Australia. 

The most recent annual report for the period of 1 July 2020 to 30 July 2021 records the numbers of applications and orders made. And we have helpfully extracted the chart that appears in the report. And that should come up on the screen now. I won't take you, Commissioners, through each particular jurisdiction but, Commissioners, you will see that in relation to the total of applications made in the year 1 July 2020 to 30 June 2021, the total number of applications for both guardianship and administration or financial management was 24,828 applications. You will see that the largest numbers of applications occurred in Victoria. 

In relation to the orders   and so this is the orders following an application   you will see that the total number of orders made was just under 20,000, being 19,799 orders. So, that's a large number of human beings and people and families who are affected not only by applications, but also by the orders made in Australia. 

A review of the Council's annual reports since 2017 and following have told us some information about the trends in relation to both applications and orders. The total applications for guardianship or administration orders in 2017 to 2018 was 22,273. If we look at the present numbers, this represents an increase of 11.5 per cent. In terms of the total orders made for guardianship and administration orders in 2017 to 2018, it was 16,537 orders made. 

Taking into account the present number of orders made, this represents an increase of almost 20 per cent, at 19.7 per cent. In Victoria and Queensland, the numbers of guardianship orders have decreased. On a per capita basis, Victoria and Queensland also have the lowest numbers of guardianship orders compared to other jurisdictions. South Australia and the Northern Territory experienced the highest number of guardianship orders over the four years that were analysed. They have also seen   sorry, I withdraw that. In terms of these jurisdictions, it's not clear why there has been such an increase. 

This week, Commissioners, you will hear the perspectives and experiences of people with disability when they have been the subject of applications for guardianship or administrative arrangements. And, Commissioners, the evidence you will hear this week will be a tiny snapshot of the issues and allegations raised in submissions and at private sessions about guardianship and choice and control. 

This Public hearing builds upon the information that you know from submissions and private sessions, but it also builds upon the evidence that you have already heard at Public hearings. For example, you may recall Public hearing 3 in December 2019, witness AAI described the many ways choices were made on behalf of her daughter, including when her daughter could go to bed or whether she could have tea or coffee, and you will remember her daughter lived in a group home. 

At that same hearing, Sarah Forbes, the Advocacy Manager at VALID, told you about a couple who were prevented from being in a same sex relationship on the basis of a belief that the two people involved lacked capacity to consent to that relationship. At Public hearing 20, you heard a service provider suggested that Sophie's parents seek guardianship of Sophie so they could take her phone away from her and prevent her visiting internet dating sites. 

Commissioners, we have asked the lawyers and advocates from Western Australia, Queensland, and Victoria who represent and support people with disability in the guardianship and administration systems to share their experiences and to share some of the case studies that highlight the trends and systemic issues. They will also share their suggestions for change and reform. 

Chair, you have touched on some of the key issues that are likely to arise from the hearing and can I just summarise them in this way. These issues will raise the following key themes: People with disability and family members not understanding guardianship or administration systems; people with disability not being aware that an application has been made or consulted about the application, including interim or short term orders; people not understanding how tribunals work or the evidence relied on in tribunal hearings. 

This includes not being represented, not having an interpreter, not understanding the legal paperwork. It also includes not being able to follow online or telephone hearings, or even having the opportunity to speak at a hearing. Another theme is how tribunals determine if a person has capacity and what appears to be a very heavy reliance on medical assessments. 

A theme which will emerge is not receiving any reasons for a tribunal's decision and not knowing if there is any option to challenge the decision. Not knowing how long the order will remain and feeling invisible because of the strict confidentiality provisions that apply to guardianship proceedings and feeling silenced. Not understanding a guardian or administrator's role and powers, which may be compounded by the limited personal connection and communication between the person who is subject to the order and the relevant guardian or administrator. 

One theme that is important in this hearing is to understand cultural safety and cultural responsive approaches. And you will hear that particularly for First Nations people and people from culturally and linguistically diverse backgrounds, that they have not experienced cultural safety or cultural responsive approaches. 

A strong theme is feeling trapped, overly protected and having no dignity of risk. You will hear about the theme of unreasonable denial of financial autonomy by an administrator or delegate. You will hear about conflicts of interest, the fees charged by Public Trustees or Public Guardians, and the lack of transparency about the use of a person's financial resources for administration and sometimes even in litigation. 

Commissioners, we will examine these themes with the Public Trustees and the Public Guardians. And this week you will hear from the Public Advocate, Western Australia, the Public Trustee of Queensland and the Public Guardian of Queensland. You will hear from the State Trustee and Public Advocate from Victoria, the New South Wales Public Guardian, the Director of Estate Management from New South Wales Trustee, and from the national disability agency. We will ask them about their powers and functions. 

Commissioner, it is one thing for the law to confer powers. It's another thing to understand how power is used. These agencies have extensive and wide ranging powers that affect the lives of people often when they are at their most vulnerable points in life. Understanding power and how power is used is central to understanding the impact that orders concerning guardianship and financial administration may have on a person's life. 

Commissioners, I know that many people following this hearing would like to see the Royal Commission make findings about their own cases and what happened to their particular family members, but this hearing we are focusing on the systemic issues to assist the Commissioners identify the case for reform and change. For this hearing, we will not be asking the Royal Commission to make particular adverse factual findings as to whether a particular person or government breached the law or breached a policy. 

So, Commissioners, I want to turn to another issue which will be significant in this hearing and, Chair, you have touched on this issue in your opening. It is about supported decision making. We want to discuss a human rights approach, moving from substitute decision making to supported decision making. There are about 4.4 million people or just under 18 per cent of the Australian population who live with disability. Not all people with disability require support in relation to decision making, but some people do. 

And the Royal Commission's data team have collated the following data points based on the Australian Bureau of Statistics’ Survey of Disability, Ageing and Carers. First, of people with disability, 17 per cent   around 689,000 people   need assistance to make decisions or think through problems. When this group is split by age, people with disability aged between 15 and 24 years of age are two and a half times more likely to need assistance when making decisions compared to people with disability over the age of 25. 

Next, people with intellectual disability were 3.2 times more likely to need assistance compared to the general population with disabilities. And people with psycho social disability were three times more likely to need assistance than the general population with disability. If a person with disability needs assistance to make decisions or think through problems, we should not assume they do not have capacity. In this respect, the Royal Commission's Terms of Reference recognise the human rights of people with disability, including respect for their inherent dignity and individual autonomy. 

Chair, you have referred to the importance of the Convention on the Rights of Persons with Disability to the Royal Commission's work. It recognises the importance of autonomy for people with disability. Article 3(a) says this: 

"Respect for inherent dignity, individual autonomy, including the freedom to make one's own choices, and the independence of persons." 

These are guiding principles. Chair, you referred to Article 12 of the CRPD, and that reaffirms that persons with disabilities have the right to recognition everywhere as persons before the law. Article 12 calls for people with disability to enjoy legal capacity on an equal basis with others in all aspects of life, and appropriate measures put in place to provide people with disability access to the support they may require in exercising their legal capacity. 

In effect, the CRPD identifies supported decision making as a right. Commissioners, you are aware that general comment 1 made by the CRPD Committee said that Article 12 in effect requires the abolition rather than any part or retention of substitute decision making models. We note there are strongly held views about the interpretation of Article 12, and, Commissioners, you will recall this was an issue we addressed at Public hearing 18 concerning the implementation of the CRPD into Australian law. You are aware Australia has made an interpretive declaration with respect to Article 12 and the retention of substitute decision making. The CRPD Committee has called for Australia to revoke its interpretive declaration. 

Commissioners, that is not an issue that you will be able to resolve in this hearing. But, Chair as you have said, the Royal Commission has looked carefully at past reports, and one of those reports is the report from 2014 of the Australian Law Reform Commission, called Equality, Capacity and Disability in Commonwealth Laws. The report recommended a shift from substituted or substitute decision making to supported decision making for people with disability. And the Law Reform Commission recommended reform of Australian laws for a consistent national decision making set of principles. 

These principles would recognise the equal right to make decisions and have decisions respected. And supported decisions must be directed by a person's will and preferences. The Law Reform Commission also recommended the introduction of a Commonwealth decision making model which consists of supporters, who provide support to an individual to make decisions, and representatives, who are appointed as a last resort and in limited circumstances, to make decisions for people based on their will and preferences. 

This approach recognises that support for decision making occurs on a spectrum, and it moves away from a binary distinction between supported on one side and substitute on the other side with respect to decision making. Under a principled approach, a person is supported to maximise their autonomy in making decisions. A person's stated or perceived will and preferences are at the centre of decision making. The CRPD Committee has said support means this: 

"It is a broad term that encompasses both informal and formal support arrangements of varying types and intensities.” 

And the Committee says: 

"Here are some examples for support for decision making. They include peer support, support persons, advocacy including self advocacy, or assistance with communication to assist people in exercising their legal capacity for certain types of decisions."

The Committee has said there should be measures relating to universal design and acceptability, such as providing information in an understandable format or access to interpreters to enable people to perform the legal acts required to open a bank account, conclude contracts or conduct other social transactions. The Committee has said there should be the development and recognition of diverse non conventional methods of communication, particularly for people who use non verbal forms of communication to express their will and preferences. And, finally, the ability to plan in advance whereby a person can state their will and preferences which should be followed at a time when they may not be in a position to communicate their wishes to others. 

Commissioners, support can be informal, where it be by family members, friends or other networks that give support. Or it can be formal, and these mostly arise in the formal and legal matters, including proceedings. People with cognitive disability may require supports through a more flexible use of procedures when appearing in courts and tribunals. And in effect, it means, for those of us that work in courts and tribunals in the law, that we need to be flexible and anticipate what changes should be made to make our processes more accessible. 

Commissioners, this week you will hear from people with disability, advocates and representatives from the Council for Intellectual Disability and the Older Person's Advocacy Network about some very concrete and practical ways to exercise supported decision making. 

So if I can turn now to the arrangements for this week. Today, we will focus on Western Australia. And shortly, you will hear from Anthony from Western Australia, and he will tell you about his experiences assisting his mother, Killara, who is a member of the Stolen Generations. In 2015, the Public Advocate was appointed Killara's limited guardian, and the Public Trustee was appointed to manage Killara's financial affairs. Anthony will tell you about his concerns about Killara's living conditions and her deteriorating health and the Public Advocate's response when he raised those concerns. 

In June this year, Killara's orders were revoked, and in August this year, Anthony was appointed her plenary administrator. Killara, who is here with us   thank you, Killara, for coming   has also recorded her thoughts and reflections, and we will play that after Anthony's evidence. 

Then later today you will hear from Alice Barter, from the Aboriginal Legal Service Western Australia, and Christine Grace, from Kin Advocacy, about their work supporting clients and some of the systemic issues arising for people with disability with respect to substitute decision making. And later this afternoon, you will hear from the Western Australian Public Advocate. 

So, we are going to travel this week around Australia. Tomorrow, we will examine Queensland. On Wednesday, we will examine Victoria. On Thursday, we will examine New South Wales. And on Friday, you will hear from the Older Persons Advocacy Network and the NDIA. On each morning, I will give you a brief overview of what to expect during the course of the day. 

So, Commissioners, I'm going to ask now for a content warning to be displayed. As I said, the focus of this hearing is to listen and to understand the experience of people with disability. So, some of the evidence will be distressing. People will share with us some very intimate and personal information on their family, their family histories, and their evidence will, at some points, likely to be distressing or cause other people to be triggered by listening to stories that they may feel a very close connection to. 

The Royal Commission encourages everyone watching, whether by the web stream or here in person, to be mindful of the topics that may cause trigger or distress. And we encourage everyone to seek support in that respect. For the people in the hearing room here with us in Homebush, our counselling team is on hand, and they are available to you at any time you wish to speak to them. 

Finally, Commissioners, I remind everybody before we break that people following this proceeding, be it on the room or on the web stream, must be aware there are provisions in the Royal Commissions Act that have the very clear object of protecting witnesses who give evidence before the Commission. In particular, I want to draw attention to section 6M of the Act, which provides that any person who uses, causes or inflicts any violence, punishment, damage, loss or disadvantage to any person on account of that person having appeared as a witness, given evidence, or produced documents to the Royal Commission commits an indictable offence. Thank you, Commissioners. 

CHAIR: Now, it's appropriate to take an adjournment, I assume. Can we resume at 11.15?

MS EASTMAN: Yes. Or earlier, if you would prefer. 

CHAIR: Well, let us resume then at   make it 11.10. 

MS EASTMAN: 11.10. Thank you, Commissioners. 

CHAIR: We will now adjourn. 


<RESUMED 11:18 AM 

CHAIR: Ms Eastman. 

MS EASTMAN: Thank you, Chair. Just before we start with Anthony, who is our first witness for the hearing, Commissioners, there are a number of witnesses who are participating in this hearing who are using pseudonyms, and that means that you have made some orders that those people cannot be identified by name or in any other way. So, can I   just a reminder for anybody following the proceedings that, ideally, please do not take photographs of the witnesses. 

If you are talking to the witnesses, then please remember to use their pseudonyms in any conversations or any publication in relation to the evidence that they will give. If anyone in the room or anyone online needs any information about how non publication orders work for the Royal Commission, then please do not hesitate to come and talk to us or to any of the team or to people following online to contact the Royal Commission. 

CHAIR: I take it from what you have said, Ms Eastman, that people should be aware that any publication of a photograph or identifying information may be in breach of the orders that have been made by me and which can be enforced. 

MS EASTMAN: Yes. And I think people, Commissioners, are also sensitive in this area around guardianship and financial administration orders that some of the relevant state laws have very strong prohibitions on the publication of some information. So, our primary objective in hearing the stories is that our witnesses feel they can speak their truth and speak honestly and openly to you about their experiences, but we don't wish them to be inadvertently put in any difficulty or have any concern about their evidence. 

And, Commissioners, you will recall what I said in concluding my opening comments about the provisions of the Royal Commissions Act, in particular section 6M in relation to the protection for witnesses appearing at the hearing. 

CHAIR: Yes. Thank you, Ms Eastman. 

MS EASTMAN: So our first witness is Anthony. Anthony is using a pseudonym. Commissioners, Anthony will take an affirmation. 


CHAIR: Anthony, thank you very much for coming to the Royal Commission to give evidence today. We appreciate your assistance to the Commission, and we also appreciate for the statement that have you provided to us that we have read. If you would be good enough to follow the instructions of my associate, who is just to your right, she will administer the affirmation to you. Thank you. 

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


CHAIR: Thank you, Anthony. I will now ask Ms Eastman to ask you some questions. 


MS EASTMAN: Commissioners, before I do that, I'm just going to ask if the content warnings can come up on to the screen. And this will be a story of First Nations experiences. And so I want to ensure that anybody hearing the evidence has access to the telephone number supports available. Anthony, welcome to the Royal Commission. Thank you for coming, and can I start by asking you to be confirm you have made a statement for the Royal Commission? 

ANTHONY: Yes, I have. 

MS EASTMAN: You have got a copy with you? 


MS EASTMAN: It is dated 3 November this year; is that right? 


MS EASTMAN: You have had a read of the statement. I think we found one typo in the statement. Is that right? 


MS EASTMAN: So that typographical error is really a missing word, isn't it. Paragraph 20. And, Commissioners, that will say, "During this time in 2016, I experienced a brief period of" and then the word "being" should be added to that sentence. So, other than that, the contents of the statement are true. Is that right? 


MS EASTMAN: Okay. Before I start asking you some questions, Commissioners, I would like Alice Barter to have an opportunity just to announce her appearance. She's acting for Anthony. 


MS BARTER: May it please the Commission. Barter, from the Aboriginal Legal Service of WA, representing Anthony today.

CHAIR: Thank you, Ms Barter.

MS EASTMAN: And I thank Ms Barter for her assistance working with Anthony in the preparation of the statement. Thank you. Alright. So, Anthony, we are going to tell a story about your family and a story about the experience of First Nations people. And, in particular, you wanted to share your experiences but also to talk about your mum, Killara, and she is a Stolen Generations survivor. Is that right? 


MS EASTMAN: And Killara is in the room with us as well? 

ANTHONY: Yes, she is.

MS EASTMAN: Okay. So, if we sort of say the whole story, and then I want to come to the detail of it, is that at the present time, as at August this year, you have been appointed Killara's administrator; is that right? 

ANTHONY: Yes, correct. 

MS EASTMAN: And that means that you are able to make decisions for her in relation to her financial affairs. 


MS EASTMAN: And can you just   Commissioners, I just   your microphones are on. So, can I start by asking a little bit about yourself, and then we will come to hear the way in which you have supported your mum over a number of years. So, about you, you're 27 years old and you are an Aboriginal man from Western Australia. 


MS EASTMAN: What would you like to tell us about your family? I know you've got a lot of siblings. 

ANTHONY: Yes, I'm one of six. Five of us kids were state ward. So, we belonged to the government   that's how we looked at it   up to the age of 18. I was taken when I was 2. I was put into six group homes, eight carers, and I went to 11 schools. 

MS EASTMAN: How would you describe your childhood? 

ANTHONY: Traumatic. Disruption. Lost. And hurt. 

MS EASTMAN: Was it hard to learn to build emotional connections? 

ANTHONY: Absolutely. I still have issues now. 

MS EASTMAN: And in terms of connection to country and culture, when were you going to 11 schools and lived in six different homes, how were you able, if at all, to keep connection to culture and country? 

ANTHONY: I didn't, at first. I presumed myself as what we would call white. I changed my name. I didn't associate myself like that due to the stigmatisation around me. It was really hard. So, yeah, it was very hard to find myself. My self-identity. 

MS EASTMAN: Did you have a lot of disruption when you were at school? 

ANTHONY: Yes, a lot. I got put into different programs. It was hard to build friendships in school. Obviously, 11 schools. They weren't, like, Perth schools. You know, there was some Perth schools, but mostly country   like, in the countryside schools, so sort of a bit hard as well. And then also when people say that   like, in schools such as, you know, "Where is your parents?" The common question, "Where is your mum and dad?" I will be like, "I don't know." So   and also the foster carers as well. Like, you couldn't say they were your parents because it was clearly said to you that they weren't. So it was hard. 

MS EASTMAN: You weren't able to finish high school, were you? 

ANTHONY: No, I was put in a program called SSEP, Senior School Engagement Program, where they put kids like   if they have just got out of juvie or something like that. But the reason I was put in there is because of, at the time, school reports wasn't given to the senior high school. So, I had to go to a class and, yeah, it was kind of a weird class. It wasn't really that educational. 

MS EASTMAN: Your childhood was one where you were exposed to a lot of trauma, and you also experienced a lot of abuse. Social and emotional, sexual and physical abuse. And you experienced family violence and you were exposed to alcohol and other drugs as you were growing up. Is that right? 


MS EASTMAN: How have you been able to find your way forward? 

ANTHONY: It's hard to say in words, I think. I think   but in regards to how I found myself is education and information provided to me. I had to get an education to find   like, to help me in life. So, this has helped me with my family. Helped me get back to culture, acceptance and self identity. 

MS EASTMAN: And one of the topics that we are talking about at the Royal Commission this week is learning how to make decisions. Can you, reflecting on your childhood, think about how did you learn to make decisions for yourself and have that sense of independence? 

ANTHONY: I didn't have that decision making as a child, of course. Being a state ward. I think it was even hard to have any power because, obviously, we all know children are vulnerable. Even underneath the State Government's laws, obviously. So, how I find that power is when I got told, you know, the carer is no longer getting payments. So when you hit 18, that's it. You're out on the streets. And that was pretty much for me. And I had to find my own way. I had no family, no friends really to fall back on to. So, it was extremely hard to get to where I am now. 

MS EASTMAN: Well, thank you for sharing your story, but I know you wanted to talk about your mum as well. So, can we start with your mum. And I know Killara is in the room, so, Killara, I hope you don't mind us talking about you a little bit. Is that okay? Alright. So, Anthony, your mum is 50 years old. She's an Aboriginal woman. She lives with cognitive impairment, and she is showing some signs of improvement in terms of her cognitive functioning. Is that right? 


MS EASTMAN: And as a child, she was diagnosed with epilepsy, and she's lived with epilepsy since she was a young child? 


MS EASTMAN: You have said that your mother finds it hard to talk about her past, because there's a lot of trauma in her past connected to her being a member of the Stolen Generations. What would you like to tell the Royal Commission about your mum? 

ANTHONY: My mum is definitely a strong lady. I had to find my mother when I left care. I had to build that relationship. She is so knowledgeable, and she's a very loving person, and I think, with my assistance in the last couple of years, I have helped her gain back some independence, and there's some massive improvements. 

MS EASTMAN: Well, can I ask you about how you connected with your mum. So, I think there's a story here. You were about 19 years old, and you were driving down a road in Perth, and you saw a homeless woman. Now, over to you. Take up the story from there. What did you see and what happened? 

ANTHONY: Yes. I was driving    sorry, in a Perth area and it was a very hot day. And I noticed this lady walking on the side of the street, with very   like, lots of clothing on. I was like, damn, you know, I would be sweating for her. It was very hot. And I had seen her a couple of times when I was growing up, so I kind of had a brief idea what my mother looked like visually. And I pulled over and I was like, "Mum" and then she looked at me confused. I was like   said her name. And then she looked at me and I was like, "I'm your older son.” She was like, "Oh, how are you going?" I'm like, "Yeah, good thanks." 

MS EASTMAN: Did you have to do a double take? Because this   here's a lady    

ANTHONY: It was, yes. So I had to   I was driving past  

ME EASTMAN:   with ugg boots, and she sort of had a tiara on. Wheeling a pram. You were like, "What?" Is that right? 

ANTHONY: Yes, so what happened was, I was driving past. I seen her. So then I had to   thinking that's my mother. I haven't seen her. I did a U turn, came back around, and I was like, hey, etcetera, etcetera. Yes, she was wearing a tiara. She clearly, you know, was having some mental health issues at that moment. She was pushing a pram with some clothes, in because I thought it was a baby first. And then, yeah, I   from thereafter, you know, I said to her, where do you live, etcetera. Just having that small talk, I said to her, you know, "You can come back to mine. Get yourself sorted." So, I popped the boot. She was a bit hesitant. Jumped in the car, of course, and chucked all of her stuff in. And then went back to mine. 

MS EASTMAN: So in that sort of short moment, you were able to have that connection back with more your mother. You hadn't seen her for a long time. 

ANTHONY: It was very hard to have that connection, but I think we stood on the side of the road for about 20 minute, roughly, talking, back and forth. 

MS EASTMAN: So you took your mum home and when she got there she made some comments, didn't she? What did she tell you about your life? 

ANTHONY: She was a bit hesitant standing   coming into my home. It was a two storey home, and she was like, "This house is white" I said, "Well, yes, I guess it is but it's a roof over my head." And I said, you know, that's your room upstairs. You have got a safe place, get all your washing. We will do your washing. And I knew she had a hide out as well, so I went back with her to get all of the rest of her stuff. 

MS EASTMAN: Okay. So, did she end up staying with you for long, at your house? 

ANTHONY: She stayed with me for a couple of months. I had to   from   I had to cut down my hours from full time to part time. I had some support carers come in and help where it was, you know, when she needed it. And then I think, yeah, then obviously she went into that medical side of things. 

MS EASTMAN: Okay. So you had some difficulty communicating with Killara at the time, and you could tell there was something going on for her in terms of her mental health; is that right? 


MS EASTMAN: And you felt she was very closed up and she didn't want to talk about that. So, you went to the doctor to get some assistance for her. See if she could be signed up to the Disability Support Pension; is that right? 


MS EASTMAN: And then part of that process was she had to be reviewed by a psychiatrist and then she was in turn referred to the Aboriginal Mental Health team; is that right? 


MS EASTMAN: Now, taking these steps in this process, did you think at the time that this process might lead to an application being made in relation to your mother having a guardian appointed? 

ANTHONY: No. Not at all. 

MS EASTMAN: And had you at any time around getting medical help for your mum's mental health at the time thought that this might lead to a guardian being appointed for her? 


MS EASTMAN: But some months after the interaction with the health practitioners, you received a call from the   a representative of the Public Advocate; is that right? 


MS EASTMAN: And the representative told you that there would be a hearing in a place called the State Administrative Tribunal. 


MS EASTMAN: And the person said to you words to this effect, "Don't worry. All will be looked after. Your mother will be cared for." 

ANTHONY: Yes. That's correct. 

MS EASTMAN: So, had you heard of the State Administrative Tribunal before then? 

ANTHONY: Never. 

MS EASTMAN: Had you heard of a Public Advocate? 


MS EASTMAN: Did you understand what the conversation was about? 

ANTHONY: Not really. 

MS EASTMAN: Do you know who made that application for your mum, that there be orders? 


MS EASTMAN: And were you consulted at all? 


MS EASTMAN: Did anyone ask you whether, if your mum needed some assistance at that time, about what assistance she might need? 


MS EASTMAN: Did anyone ask you, if there needed to be orders, whether you would be able to step in and support your mum and take on that responsibility? 

ANTHONY: I wasn't really informed about anything. 

MS EASTMAN: Were you told whether you could go to the tribunal? 

ANTHONY: I don't recall that. 

MS EASTMAN: Do you know if your mum got any information about the tribunal? 


MS EASTMAN: And so, when you look back at this time, it was a bit of a blur, and you didn't really understand what was going on. Is that right? 

ANTHONY: Yes. Correct. 

MS EASTMAN: So, after the hearing, you received a phone call from a representative of the Public Advocate to say that things went well. All went well. And you asked if your mother knew anything about what was going on, and she said that she didn't know she was on any orders. Is that right? 


MS EASTMAN: Now, at that time, your knowledge of guardianship and administration was fairly limited, so you didn't understand the effect of the orders or what they might mean for your mother or for yourself. Is that right? 


MS EASTMAN: But you've later come to understand that at that hearing in 2015, the Public Advocate was appointed to be your mother's guardian with decision-making functions for accommodation, so where and with whom she lived; for services and medical treatment decisions; and there was also an order made appointing the Public Trustee to be your mother's administrator. 

ANTHONY: Yes, that's correct. 

CHAIR: May I ask just a question here. 

MS EASTMAN: Of course you can. 

CHAIR: When the Public Advocate contacted you to let you know that this application was to be made, where was your mother living? Was she still living with you or was she somewhere else? 

ANTHONY: I think she was still living with me or staying in a respite place where they had   it was like a care place where you might drop her   like, she was staying with me but then, like, give me respite on the weekend kind of thing. So, she went for a couple of nights at a respite place. 

CHAIR: Thank you. 

MS EASTMAN: Are you now aware that a social worker was the person who prompted the application in relation to your mother? 


MS EASTMAN: Are you aware of that? 

ANTHONY: No, absolutely not. 

MS EASTMAN: So, when the orders were made, the next thing was that your mum was then moved into a house that you have identified in your statement, but we are not going to refer to the name. 


MS EASTMAN: So we will call it the facility. 


MS EASTMAN: Okay, so you know what I'm talking about. Okay. So, she moved to the facility, and she lived there throughout the period late 2015 through to June this year. Is that right? 


MS EASTMAN: Now, this was also a really tricky time for you   or hard time for you, probably is a better word; is that right? 


MS EASTMAN: And you experienced a brief period where you were also homeless. 


MS EASTMAN: And I think you have said in your statement, and you have told the Royal Commission that you had some mental health problems at that time. You had lost your job. And you were sleeping in your car. 

ANTHONY: Yeah, couch surfing and everything. 

MS EASTMAN: You felt very disconnected at this time, having established that connection with your mum, living with her, and then she's now living somewhere else. Is that right? 


MS EASTMAN: And did you have any say at all about where she was going to live or why, whether the facility was somewhere you thought she would like to live? 


MS EASTMAN: This period of disconnection for you was one where you had to focus on making sure that you were okay yourself; is that right? 

ANTHONY: Absolutely. 

MS EASTMAN: And so you visited your mum when she was living at the facility over this period of time. 


MS EASTMAN: And what can you tell the Royal Commission about the nature of those visits and what you saw? 

ANTHONY: I think first I was shocked. The facility was locked. You had to get a code to get in. I always make a joke with mum, like, with a staring competition, who won it because you walk through a room with like three or four couches, there is, like, 20 odd people sitting there, no TV, silence. Staring. Very, very overwhelming. It was   you know, very horrific, the things I have seen there. Mum, she'd say a lot of things to me. I said, "I can't do much. I can't do much." She was the only Aboriginal lady there too. 

And it was just very confronting. Sometimes, I   like, mum would call me and say, "Hey, can you come and see me." And I would be like, "I don't know. Do you want to come meet me at the front?” Obviously, she couldn't because she couldn't get out because of the code. There was a lot   a lot of stuff. And mum would call me up and says, "Anthony, there is a woman sitting on my bed." Because obviously mum would be sharing a room. 

She had multiple support letters from the doctors asking for her own room. But they were not really followed through. But it was quite horrific with mum stressing the things to me as well. 

MS EASTMAN: And, Anthony, that caused you a lot of stress as well, didn't it? 

ANTHONY: Absolutely. Added on to my mental health. 

MS EASTMAN: Over the time your mum was at the facility, you started to observe that her wellbeing was declining, and you thought it was declining significantly; is that right? 

ANTHONY: Yes, she didn't want to talk anymore. 

MS EASTMAN: What about just dealing with daily activities such as getting dressed or just any sort of self care? Did you notice anything about her? 

ANTHONY: Yes. She   carers would like   I remember one time the carers was like, "I had to shower her.” Or mum would be like, "I need to wait for the carer to come shower me.” And I'm like, "Well, you can shower yourself.” And then, like, dressing, cleaning her room, like, making her bed. These things my mother could have done by herself when she was staying with me. 

MS EASTMAN: You described her as a potato. 

ANTHONY: She is, like, in regards to what happened. It was   she was   I would sit there, like, trying to have a yarn with my mum, you know, talk to my mum, and she could not respond. She would sit there and stare at me. And it was so overwhelming. 

MS EASTMAN: By early 2020, you perceived your mum to be in a catatonic like state when you visited her, and just that sense of staring blankly and seeing that her personal hygiene and wellbeing had really almost now gone to pieces. Is that right? 


MS EASTMAN: Other family members said they couldn't visit your mum anymore because it was too traumatic to see her in this way. 


MS EASTMAN: And you had a sense that maybe your mum had been medicated and you were worried whether or not the reasons for her presentation was maybe she had been receiving some medication, but you didn't know, did you? 

ANTHONY: I didn't know at the time. 

MS EASTMAN: Were you able to get any information about your mum's medical treatment at that time? 


MS EASTMAN: You have later learnt that your mum's medical decisions were made by the guardian and that she had been prescribed and was taking monthly anti-psychotic injections from about 2015 to 2020. Is that right? 

ANTHONY: Yes. I had to source that myself. 

MS EASTMAN: How did you find out that information? 

ANTHONY: So, when I became a health professional after my studies, I knew of the drugs, of course, that was prescribed. So, when I did become the medical guardian at   like, at a date, I automatic   like, already knew what medication. I'm like, that doesn't fit my mother. And then I did backtracking, seeing where it was prescribed, spoke to the team, they   it was all kind of like pass, pass kind of the blame. And there was no one   there was never "I'm sorry" or "Sorry for this." 

MS EASTMAN: You had some occasions where you were able to communicate with your mum, and what did she tell but whether she felt safe and what was happening to her? 

ANTHONY: She would say that   like, sorry, in regards to the medical? 

MS EASTMAN: Medical and just generally what it was like living at the facility. 

ANTHONY: Well, she definitely told me every single time I seen her, "I'm scared. I hate it here." She felt worthless, hopeless; the whole lot. She had no purpose in life, by the looks of it. She had no future set up. She had   medical wise, she couldn't even respond. You know, literacy and numeracy isn't mum's best, but she would know if there is something wrong and she tried to express it, and that's how she expressed it to me, is that, "I don't like living here. I'm getting abused." Etcetera. 

MS EASTMAN: Did you feel you could do anything at the time? 


MS EASTMAN: And earlier this year, you remember receiving a phone call from one of the workers at the facility who told you there had been a medication error. And you were told that your mother had been given a double dose of some medication to assist her with the epilepsy. By this stage, you had done some studies in the medical field and so   I think, as you said earlier, you knew what these drugs were and how they worked. So, you   I think, as you say in the statement, you accept sometimes medication errors can occur, but you were very unsettled about what had happened to your mum, and that really sort of prompted you to say, "I've got to do something more here." Is that right? 

ANTHONY: Correct. 

MS EASTMAN: Okay. And so, over this time, you had started to teach yourself a little bit about what guardianship was and how it worked and the nature of the way in which the guardians had to discharge their obligations. Is that right? 

ANTHONY: Yes. I think through my studies as well, it helped me. 

MS EASTMAN: And do you   do you know the person who was appointed to be your mum's guardian was involved in any of her day-to-day care at all? 


MS EASTMAN: Did the person who we have called in the statement OPA R1, did OPA R1 visit the facility? Do you know anything about that? 


MS EASTMAN: And did you have any contact yourself with OPA R1? 

ANTHONY: Hardly. 

MS EASTMAN: If you did have contact, what was the sort of nature or the purpose of that contact? 

ANTHONY: It would be me   like, myself trying to phone, which obviously there would be no answers as much. Emails, when I became the medical guardian, would communicate through emails and that's when he would respond. He was quite hard   this person was hard to get hold of, including other services that would support my mother would be contacting me asking for consent and I would be like, "I'm sorry, I can't." They are like, "The renewal is coming up. We need someone to sign or your mother won't get the support." And I'm like, "Well, I'm not legally able to. You need to go to this person.” And then it was really hard. And this person was rude, absolutely rude. 

MS EASTMAN: And then there were some times where your mum was able to stay with you and this is sort of around 2021, 2022, that she could come and spend the weekend or some nights with you; is that right? 


MS EASTMAN: And on one of those occasions, you had a chance to talk about the option of your mum coming to live with you again. Do you remember that? 


MS EASTMAN: And did this discussion then prompt you and your mother contacting OPA R1 to ask about your mum coming to come and live with you. Do you remember that? 

ANTHONY: Yes, I think my mother called first and then I tried to call. 

MS EASTMAN: And do you remember whether OPA R1 was agreeable to your mum changing where she was living in the facility to come and live with you? 


CHAIR: Sorry, do you mean, "No, I don't know" or "No, she wasn't" - 

ANTHONY: No, this person was not agreeing at all. He said   this person said some comments along the line which was quite hurtful. 

MS EASTMAN: Is that that, "Your son couldn't look after you before so how is he going to look after you now"? 

ANTHONY: Yeah, and, "He couldn't look after you back then." 

MS EASTMAN: And that's what you remember your mum telling you about the conversation. Is that right? 


MS EASTMAN: You thought that this was referring to a time where you were homeless in 2016. 

ANTHONY: Correct. 

MS EASTMAN: And were you concerned that that didn't take into account all of the work that you have been doing since that time in terms of your education and your very stable housing and accommodation. Is that right? 


MS EASTMAN: Can you tell the Royal Commission that you felt   

COMMISSIONER RYAN: Can I just get a detail. Who did the conversation happen between in terms of requesting the transfer? Was it the lady herself that was under guardianship or was it Anthony?

MS EASTMAN: Yes, it is right, isn't it, that Killara was in contact with OPA R1 and Killara asked OPA R1 if she could come and stay with you at your place. 


MS EASTMAN: That was the first step? 


MS EASTMAN: Alright. But you had also had contact with OPA R1 at different points in time to raise concerns. Is that right? 

ANTHONY: Correct. 

MS EASTMAN: So, if we then move to some reviews in relation to your mother's guardianship arrangement, can I ask you some questions about when reviews came up from time to time? 

ANTHONY: Like, in regards to her orders being reviewed? Sorry. 

MS EASTMAN: Yes, so periodic reviews of her orders. 

ANTHONY: Yes. I know she was on, like, five-year orders and I know that, at that time, when I   after I had my education or whatever, it was   I was   I knew that you could request a review any time. So, after also seeking legal advice, which I did, which did help us get that review. 

MS EASTMAN: Okay. So, there was one review in about July 2020. And did you attend that review of your mum's guardianship and administration orders? 

ANTHONY: Yes, over the phone. 

MS EASTMAN: Was it like a telephone hearing? 

ANTHONY: Telephone. 

MS EASTMAN: And you asked about whether you could take over your mother's medical treatment decisions, and you would be able to make decisions for your mum in relation to medical treatment. Is that right? 


MS EASTMAN: And you did so because you felt, as a qualified health practitioner, that you had the knowledge to be able to support your mum in those types of decisions. Is that right? 


MS EASTMAN: Do you remember if your mum also participated in that telephone hearing? 

ANTHONY: Yes, she did. 

MS EASTMAN: What do you remember about her participation in that review hearing? 

ANTHONY: She had the telephone call at the facility, and she was with the support staff who was working at the facility. Who was having issues with. So, it was kind of a little bit intimidating for her. But   yeah. 

MS EASTMAN: And what ended up happening as a result of that hearing? Were there orders appointing you or were there any changes made? 

ANTHONY: Orders appointing me as medical guardian. That was the only change. 

MS EASTMAN: But not more broadly in terms of where your mum would live or any services that she might need support with? Is that right? 

ANTHONY: Yes, that's right. 

MS EASTMAN: So, in terms of then you taking on this responsibility in relation to medical treatment decision making, how did you decide you were going to support your mum in relation to her medical treatment? 

ANTHONY: I first took mum to a cultural appropriate medical assist, an Aboriginal medical service, where I was working at the time as a health practitioner. We had a review, and I first noticed the signs of, when I looked at my mother's blood results, I seen a high increase of a certain type and other concerning health issues there that weren't addressed. These also blood results shown over years of period of absent of the treatment. So, that's where I just   you know, I spoke to the medical team. We got straight on to it, and, yeah, I'm so glad that she's healthy. 

MS EASTMAN: So, you were concerned about some physical signs of untreated diabetes. 

ANTHONY: Yes, correct. 

MS EASTMAN: You were concerned about the condition of her body, particularly her feet. You noticed - 

ANTHONY: Yes, sorry, that's what I meant about the blood results. I checked the blood results and that's how we can tell diabetes is in someone. 

MS EASTMAN: You were concerned about her eyesight. 

ANTHONY: Yes, it was blurry. 

MS EASTMAN: And I know this is a sensitive thing to talk about from a cultural perspective, but it was clear that she was struggling in managing her menstrual health and hygiene. 

ANTHONY: Correct. It was   every time I would see my mother at that facility, that's when I noticed there was massive signs of neglect   

MS EASTMAN: Her teeth were all black. 

ANTHONY: Yes, she has had to have all   I was sitting there over the dental chair to support my mum   my mother emotionally. She's had, one occasion, eight teeth removed one day. The next day, healing, seven teeth. She's got dentures now. 

MS EASTMAN: You also over time became aware that your mother had hepatitis C infection that had not been treated and that this had led to moderate cirrhosis of her liver. 

ANTHONY: Correct. 

MS EASTMAN: And you considered that there needed to be a change in her medication regime to wean her off the anti psychotic medication and start to give her a new direction in terms of how she might be managed with respect to medication. Is that right? 

ANTHONY: Correct. I had to speak to   it was a mental health facility first, the original prescriber. They had her on their books for about three months. It was managed by a local doctor then, who I have never met, who would come to the facility in the facility to see my mother over a certain period of months. It was, as my understanding, only a specific doctor can prescribe it and cease it or reduce the medication. 

So, this doctor unfortunately couldn't cease the medication but was continuing prescribing it. That's when, at the doctor where I was   sorry, the Aboriginal medical service where I was working at, one the doctors did a   what's it called, a referral for a psych review, where we could finally get that medication from injections monthly to tablet forms daily and then wean her off that way. 

MS EASTMAN: And your mum has now glasses with prescription lenses. And basic things like being fitted with the dentures and having glasses, those might be seen for some people to be in the ordinary course, but they have made a really big difference for her, haven't they? 

ANTHONY: Massive. She can smile now. 

MS EASTMAN: So you have noticed that in terms of the changes for Killara that, as her health improved, her ability to think through problems and make decisions for herself has also improved. 


MS EASTMAN: And how have you supported her in the health decisions that you've made and supporting her as she's improved in terms of thinking about things and addressing problems? 

ANTHONY: I would always give mum options. I would always empower my mother. I would always get mum to speak to the Aboriginal staff members at the health facility   at the Aboriginal medical service, sorry, to yarn with my mother, not me be in the room, because, you know, woman's business is woman's business. Men shouldn't be in there. So, my mum was able to talk openly to the female staff, express her   you know, her concerns or anything regarding her health. Then, yeah, I would always empower my mum to speak. If she ever needed, like, someone to speak for her, then I was able to speak. 

MS EASTMAN: Did you take the step of making any formal complaint about the   your mother's medical treatment when she lived at the facility? 

ANTHONY: Yes, so first I went to the doctor, the one that would go and visit my mother in the facility. I tried to get hold of him. He was hard to get hold of from the medical facility that he worked at. He finally responded and said that   over   over the phone, sorry   "It's hard to manage diabetes and the health conditions in the facility like that. You have got to look at dietary requirement, etcetera.” And I'm like   you are making my mother going to lose her toes and fingers. I wanted to actually swear at him. And then he was   "If you are going to question me" or something, he said, "I'm going to hang up the phone.” And then when he finished talking to me   because he didn't know my background in health, then I went and spoke to the guardian. 

MS EASTMAN: And what did you do? I think you have provided for the Royal Commission some correspondence in relation to a complaint and a response that you received from the guardianship team at the Public Advocate's office. Is that right? 


MS EASTMAN: And has that complaint been resolved? 

ANTHONY: It was resolved not really one that I would see good. It wasn't, "I'm sorry." 

COMMISSIONER RYAN: Could I just clarify, when you made the complaint and were you talking to the doctor, were you your mother's guardian at that time? 

ANTHONY: Yes, medical guardian at the time. That's how I found out all those things. 

COMMISSIONER RYAN: So when you were asking about that and you made the complaint and you had a discussion with the guardian, you were actually, by that stage the medical guardian.

ANTHONY: The medical guardian at the time. 

MS EASTMAN: One other aspect in terms of what was occurring for Killara in that period 2015 up to 2022 was when she lived in the facility, I think you mentioned earlier she was the only Aboriginal woman at the facility. In terms of what you were observed about Killara's connection to her cultural identity and her cultural life, what can you tell us about the impact of living in the facility on her cultural life? 

ANTHONY: Massive. Massive. She missed out on lots. We have missed out on lots, us kids, from it. We didn't know who to speak to extended family, because our family structure is a little bit different than non-Aboriginal people. So, it was quite hard. Family members thought we got lost or we died as a response. We still can't connect to family due to the disruption. Yeah, it was   there was no cultural practice, no cultural safety in the facility. It was   it's a very dated facility. It looks like you would see back in the 50s or 60s. Like it was very dated. The only new thing was the lock on the door. The lock on the gate. That's what I'd seen as the latest newest thing. 

MS EASTMAN: Can I bring you to this year and, in particular, from about the middle of this year in June. By June this year OPA R1, so the guardian who had the responsibility in relation to where Killara lived, moved Killara to a shared independent living facility run by a particular service provider. 


MS EASTMAN: Same provider? 

ANTHONY: The same provider.

MS EASTMAN: Your mum told you she was happier living at the SIL facility, but it was run by the same organisation. So, it's still that connection of just she felt distressed   is that right    earlier  

ANTHONY: She felt   sorry, Kate, sorry. 

MS EASTMAN:    explain this. 

ANTHONY: Yes, sorry. She felt safe. More safe because of the situation at the end with when she was staying there. She had horrific abuse and where police was involved, and for her to go to a place where there was an all woman's home, no men, because the facility where she was staying in for those years was male and female. So, going to that SIL provider, she felt more safe and had her own room this time. 

MS EASTMAN: Okay. So, she was   she had her own room. Before, she was sharing. She was living in a place where she felt safer. Is that right? 

ANTHONY: Correct. 

MS EASTMAN: And then shortly after she moved into this new place, you and Killara went to the SAT again, and this was to make an application to review the guardianship orders again. Is that right? 

ANTHONY: Correct. 

MS EASTMAN: And what happened at   on this time going to the SAT? 

ANTHONY: I think   we had to get legal   well, I got legal advice, absolutely, because the SAT is not my strong suit, obviously. So, having more people to back you up and a cultural appropriate service, like, you know, ALS to help us and express our voice and, you know, our concerns, was good. But, however, I felt like, from the change of the facility to the supported individual living was right at the end of that guardian's guardianship order thing, so we had been asking extensively throughout a while   I know a year   maybe about two years, to get mum out of that facility and it's just happened when there's about to be a review. When we have done an application. 

MS EASTMAN: So when you went in June, the SAT, the tribunal, reviewed the guardianship orders and, on that time, it revoked the order. So, it stopped the orders. 

ANTHONY: Correct. 

MS EASTMAN: Then you and Killara had to go again to the tribunal in August this year, and it was to review the administration orders. 


MS EASTMAN: Do you remember that? Okay. And at that hearing, the SAT decided to appoint you as Killara's plenary administrator. So, what's your understanding of what that means for you? You’ve had the medical. Where are we now with you on the plenary administrator? 

ANTHONY: I just look after mum's finances side of things. So, I support mum by giving her her own bank card. Even prior before that, when she was under the Public Trustee, the Public Trustee gave me a bank card where they   because I said to the Public Trustee, giving my mother $5 on a Tuesday, $5 on a Thursday throughout those years is ridiculous. So, I empowered my mother, prior   before being her administrator by letting her, like, use her own bank card, but until this day, I have let her use her own bank card. But, obviously, I'd tell mum, you know, you've got to pay for bills, have savings. I said, like, I go by the rule with, you know, more money coming in than going out. So, yeah, and I said to mum, "Yeah, we can get your own place later on down the track and you are doing on the right direction to get there." 

MS EASTMAN: And also in August in year, Killara moved in to live with you again. Is that right? 

ANTHONY: Correct, after I found out the fees. 

MS EASTMAN: At the other place. 

ANTHONY: The supported individual living that I thought NDIS might be able to cover. 

MS EASTMAN: So she's living with you now, but I think both you and Killara have talked about the importance of Killara being able to live independently. 

ANTHONY: Correct. 

MS EASTMAN: As well. Is that right? So tell us what arrangements are currently being made to find some housing for Killara? 

ANTHONY: Sure. So, I charge my mother 200 bucks a fortnight instead of nearly a grand a fortnight. So, I said to mum that what we will do is put you on a priority housing list, and you get support documents from people such as doctors, etcetera. However, the wait list, you know, with the Department of Housing unfortunately is a bit long. What we can do is get a private rental for you. Such as maybe a place for over 50s, because obviously now she's that age. She can be able to do that. However, I was looking at   we have been to a few house viewings. So, we have been trying to put applications in. However, they've not been successful due to, you know, the rental market at the moment is quite hard. But, however, mum has got her own room at my house and I'm not going to kick my mother out. 

MS EASTMAN: Okay. So, you've still got this role in making decisions for Killara in relation to financial matters. But in the rest of Killara's life, in terms of where she goes and decisions around medical treatment and just the day to day life stuff, what   you know, what is she doing there? 

ANTHONY: She's great. She knows when she needs to go to the doctors. She makes her own appointments. She has those informal supports around her such as support coordination from NDIS and whatnot. And if she ever has, like, some issues, like, health wise, she might lean on to me and say, hey, what does this mean? I will be like, this is what that means. So, yeah, she can make those own decisions. 

MS EASTMAN: One of the topics for the Commission to listen to this week is to get some really good concrete real life examples about supported decision making. How do you practise supported decision making in living with Killara? 

ANTHONY: I always ask my mother, "What would you like. What would be"   I always say, "Mum, the biggest thing I do in life is reflection. What's happened in the past, how can you improve in the future." I said, "Now, if you want to, say, go to the dentist   you have to go a couple of times a year, especially when you have the dentures now. You know, those regular eye checks, podiatry. There is medical side of things." But mum, she knows where she wants to live. She knows who she wants to speak to. And she's got all the control. And I'm just there to be as a support factor if she feels that way regards, like in regarding to where she might need support, and she will express that to me. But I   like, I don't question be. Our relationship is great. There is no negative. And, yeah, I respect my mother. 

MS EASTMAN: Well, picking up on your tool of reflection on the past and what have we learnt, can I ask you about reflecting on this period of time from seeing Killara walking along the road to then moving in with you and then the period where someone else was making decisions for her and where she was living. You have shared some of these reflections in your statement, and so if it helps you, I'm up to about paragraph 62. And you wanted to talk to the Commissioners particularly around practices and decision making for a person who is First Nations and some of the areas where you felt some of the practices felt culturally unsafe. What would you like to tell the Royal Commissioners about that? 

ANTHONY: There was no Aboriginal workers or staff members at all when my mother was under guardianship until I became her medical guardian, and that's when I linked her into a cultural, safe health service. There was no ALOs at the Public Advocate talking to myself or my mother. My mother   there was no cultural practices at all as well. It's so important, cultural yarning. She goes to cultural yarning groups now, weekly, fortnightly sometimes. 

And there was limited attempts to make   make   sorry, limited attempts made to contact family. Absolutely. I wasn't even spoken to. It was hard to get hold of the guardian. Even services, like I have mentioned before, would come to me and ask me consent when I was the medical guardian, and I said no. They are like, "Well, we need this review. Her funding is going to be stopped. We can't provide that support during the daytime." And I'm like, "I can't.” I can send an email, but they have already done it. So there was that barrier of communication. 

MS EASTMAN: What do you think could change in terms of supporting people who are First Nations people in their experience of having guardianship or having to experience a tribunal making orders about them? 

ANTHONY: Massive. There is massive   there is a long list of improvements for someone that's Aboriginal, absolutely. Try to contact the person's family. Speak to them face to face instead of over the phone. My mother never met the guardian. She's never met him. I've   I said to her, "Do you know what he looks like? He controls your life." And she's like, "No. I don't.” How culturally insensitive is that? And then also not linking her up to culturally appropriate services such as a health service, community services. There is   and a list of Aboriginal services, health and non, in WA that can provide the support where she can actually have a voice and speak up for her needs. 

MS EASTMAN: Can I just jump in there, because the Public Advocate might say that its powers under the law in Western Australia are about making decisions and not doing sort of case   not being a case manager or managing the services, per se, that that should be the facility or other places. Even assuming that's correct and it's not the role of The Public Advocate to case manage, do you still think there can be some improvement in the communication around that for people generally, but specifically for First Nations people? 

ANTHONY: Yes. My understanding   sorry, Kate   it was that my mother's guardian had control of the services she would be engaging in. So, that's what I know of. So, if that guardian wanted to be culturally safe, I   I guess, exploring the options of cultural appropriate services would be amazing. But it didn't happen. 

MS EASTMAN: Okay. We have covered a lot, and we are very grateful for the statement that you have provided to the Commissioners. Is there anything else you wanted to tell the Commissioners just before we conclude about improvements that you would like to see or, coming back to your approach, any reflections? 

ANTHONY: Yeah, I love that word reflection. I think there is lots of improvements that I could say, and I have listed them in my statement. But I could say a couple such as, if there's an Aboriginal person subject to guardianship orders, at least speaking to an Aboriginal Liaison Officer, or hiring one if they don't have none, or even speaking to an Aboriginal service within the community. Because, you know, people that aren't Aboriginal   I understand they might have their cultural awareness training, etcetera, etcetera, but actually not understanding family dynamics, family struggles, the barriers, the contributing factors that people suffer, is quite important to know. 

So, if you want to look after Aboriginal people, start actually communicating to Aboriginal services and people and culture, you know, more better. Because, yeah, there is a list, and that's what I can say is just speak to an Aboriginal person. Don't try to assume what people think. 

MS EASTMAN: Thank you, Anthony. The Commissioners might have some questions for you. 

CHAIR: Anthony, if it's all right with you I will ask my colleagues first if they have any questions. Starting with Commissioner McEwin. 

COMMISSIONER McEWIN: Thank you, Chair, and thank you, Anthony. I'm grateful to you and your mum for sharing your experience with us. I have a couple of questions. The first one is, when your mum was in the facility for about seven years, what support, if any, did she receive to develop her ability to make her own decisions? Do you know if she received any information or any support or any resources to develop that? 

ANTHONY: Not that I'm aware of. I know that maybe after the fourth year when she was still under   so what's it called, being four years under the guardianship order, I think around about then is when I started to see   no, what I heard from mum is mum would tell me that, "Oh I had a lady come visit me.” And I'm like, "What lady?" Because I was the only person that was going to go see her in that facility. 

So, it was interesting to know now we finally got services such as someone to take her out of the facility, for two, three hours, go to sit and have a coffee, and that's where I have asked for more money from the administrator at the time to pay for those things, because she was only getting $5 and 10   sorry, $5 on Tuesday, $5 on Thursdays. That does not include personal hygiene products, clothing, as well. And woman's business. 

COMMISSIONER McEWIN: Thank you. My other question is about now, you have said at paragraph 61 of your statement that your mum now gets support to go out into the community, a support worker three times a week. How important is that support? 

ANTHONY: Great. It's   my mum, she would go out with her support worker three times a week. Not the same support worker. I think they are from different organisations. They would   what's it called, take mum to the shops to do her own shopping. If she wants to go have a coffee, have a yarn   or even take her to her medical appointments, because mum can't drive. So, they will assist her with those things. 


CHAIR: Commissioner Ryan. 

COMMISSIONER RYAN: Thank you. Anthony, was just going to ask   and I am looking for assistance from Counsel Assisting at this   we are referring to a place called a facility which I presume we don't wish to name. 

MS EASTMAN: That's correct. 

COMMISSIONER RYAN: But may I at least ask the nature of this facility, for example, was it an aged care or was it a large residential centre for people with disability or something? Is that permissible for us to know? 

MS EASTMAN: Yes, that is permissible for you to know. We just won't mention its name and we might not refer to the suburb. 

COMMISSIONER RYAN: I don't want to know the name. But it would help me make more sense of the story. 

ANTHONY: So my knowledge of the facility, after experiencing it   like, in regards going to see my mother, half of it is aged care, and that's on the side where there is all the pretty flowers, and on the other side is like a construction site at that time which is a hostel environment. It's   I would say majority of the residents staying there are mental health related. 

COMMISSIONER RYAN: Did it have   did it have nurses residing or providing assistance? 

ANTHONY: The ratio was really bad. They had not nurses, support workers. I questioned as well as a   as obviously a health professional about the medication side of things. Is that   are your staff med comp, have they done the appropriate practices and etcetera to administer the medication. Especially when it comes to injections. It was one support worker to, like, 40 residents that were staying there in a hostel. There was a nurse. However, that person was in the aged care side of things. Rarely comes over to the hostel. I wouldn't even want to walk in there, so I wouldn't blame that nurse. 

COMMISSIONER RYAN: So did the residential   did the resident residence look appealing and professional when you saw it? 

ANTHONY: No, they were very rude. I think they caught on my background. They were quite dismissive. I have seen them speak to my mother when I walked in the facility and they didn't realise I was standing there. They were like, "Go away. Go away" or shoo her with the hand movements. So   and they were speaking to the other residents like   I wouldn't   I don't know if they even   I wouldn't even speak that to a child     

COMMISSIONER RYAN: Just so I'm clear, was it the Public Guardian that made the decision for your mum to live there? 


COMMISSIONER RYAN: Did she indicate any interest in living there before she went there? 

ANTHONY: Not that I'm aware of. 

COMMISSIONER RYAN: Do you have any idea   did she know about that facility before it was chosen for her? 

ANTHONY: I think she might have been verbally told, however not shown the facility. 

COMMISSIONER RYAN: And do you think anybody from the Public Guardian visited that place to discuss her care with the staff before a decision was made for her to go there? 


COMMISSIONER RYAN: I didn't think so. Did   when you had a further meeting there to review Killara's arrangements where the decision was made for you to be the medical guardian, did your mum in that meeting express any indication that she would like to leave the facility during that meeting? 

ANTHONY: She couldn't because there was a support worker there at the facility supporting her on the phone, that we felt massive conflict of interest, massive intimidation. My mother spoke to me after   I seen her straight after, after work, because it was during work hours. I had a bit of time to speak to her   sorry, over the hearing, over the phone call. Massive intimidation. Prior   right before that hearing over the phone, months and months before, she was saying that she wanted to move. 

COMMISSIONER RYAN: Had your mum indicated to the Public Guardian or to you that she wanted to move before this review had occurred? 


COMMISSIONER RYAN: Were you able to discuss that with the guardian in the meeting? 

ANTHONY: No, because I didn't   I wasn't really informed on what to speak. 

COMMISSIONER RYAN: So was the only thing discussed in the review the status of your capacity to make medical decisions   in other words was it a full review of everything that   or just the discussion about   

ANTHONY: I think it was a full review because it went for five   because I think it's   the max is five years that they can put someone under. So when mum's five years was coming up, they said, "Well, we are going for another five years for a review.” 

COMMISSIONER RYAN: How long did the meeting last? 

ANTHONY: A few minutes. It was a quick conversation, I think. I felt like it was a conversation. 

COMMISSIONER RYAN: When you say a few minutes are you talking five - 

ANTHONY: Like, I'm thinking maybe about 15, probably or something. I   it was quite   quite short. 

COMMISSIONER RYAN: Okay, thank you, Mr Chair. 

CHAIR: Thanks. I would just like to clarify some of the chronology, if I can. In 2015, the original orders were made by the Administrative Tribunal and that involved the Public Advocate being a limited guardian with powers to make decisions for accommodation. That's one aspect of it. Is that right, as far as you know? 

ANTHONY: Yes, and I think is it   who they live with as well or who they speak to I think so is it? 

CHAIR: No I'm just talking about the original orders that gave the Public Advocate  

ANTHONY: In 2015? 

CHAIR: Yes, 2015. 


CHAIR: And then at the same time the orders were made for the Public Trustee to be your mother's administrator. That's what you say in paragraph 18 of your statement. 

ANTHONY: Yes. Yes.

CHAIR: Now, when did you become aware of those orders? 

ANTHONY: I think it was over a phone call, maybe a week after. 

CHAIR: So it was in 2015? 

ANTHONY: Yes, and I had it over the phone call from the same gentleman that spoke to me. 

CHAIR: Now, at that time, that's before the NDIS, before your mother has got anything from the NDIS. What support   financial support did your mother have at that stage in 2015? 

ANTHONY: My mother was on the Disability Support Pension, because originally she wasn't when I first seen her on the side of the road. And then I got her on the Disability Support Pension. That was the only financial support she was getting. 

CHAIR: And did that   did you may not know this but was that support pension in part paid to either the Public Advocate or to the Public Trustee? 

ANTHONY: I was not informed of any fees or anything associated. 

CHAIR: And you don't know what the financial arrangements were for the accommodation that your mother was in at that time? 


CHAIR: No, okay. In 2020, at that stage, you have got legal advice and you become appointed in July 2020 to be a limited guardian with responsibility for medical decisions, in effect, for your mother. 

ANTHONY: Correct. 

CHAIR: Right. Was there some reason you didn't seek also to be appointed as guardian for accommodation purposes? 

ANTHONY: I just want to clarify, I didn't get legal advice before 2020. It was only after. So, what things I've learnt was through my studies was regarding that, you know, a family member could jump in to do that. I didn't know in regards to   if I was given the chance I would have been mum's full guardian, absolutely. But I did not get  

CHAIR: So you actually made this application yourself? 

ANTHONY: No, it was come up for review. It was for 2020. 

CHAIR: Yes, alright. In the meantime your mother becomes a participant in the NDIS. 


CHAIR: Who organised that? 

ANTHONY: It would be the service. Sorry, it would be the guardian at the time. 

CHAIR: Right. And were you consulted about the application to the NDIS for your mother to become a participant? 


CHAIR: Okay. You indicate in your statement that you made a complaint about the health services that were provided or not provided to your mother, and you have set it out in your statement the response from the Public Advocate. Do you remember that? 


CHAIR: We have the actual document, but I think the extract appears in your statement at paragraph 53. When I read that statement, that response, it seems to suggest that the role of the guardian is to determine decisions, but it was the doctors who were responsible for looking after your mother. That's what it says in the   


CHAIR: In actually the third paragraph of the letter. My question is, whether your complaint related to the whole of the period from 2015 through to the date of the complaint which appears to be 2022. 

ANTHONY: I think my complaint was   I did a complaint is when I obviously became the medical guardian. That's when I seen the negligence of my mother's health. 

CHAIR: That's 2020. 

ANTHONY: Yes. Prior before that, no. Because I didn't   I couldn't have access to my mother's medical records. And obviously the facility is not going to talk to me. I'm not a guardian. 

CHAIR: Right. When you got this response from it the Public Advocate that says that it is essentially, as I read it, it's the responsibility of the doctors, not the responsibility of the guardian, did you make any further response to the Public Advocate in the light of that comment? 

ANTHONY: Yes. I said to the guardian, I said, "Have you actually spoke to my mother? Have you actually spoke to the person that you are representing, that you are so called protecting?” I said to that guardian, "I said, it seems like we are all playing the blame game. You don't want to take responsibility and accountability for what your actions were in this incidents." There was not   and, yeah, he   the person said to me, "I go by whatever the medical professional is saying." 

As a medical professional myself, we all know that, you know, you can question things. You don't have to accept what doctors say and other health professionals. Yes, you know, you take on an advice, obviously, but this medical professional that I questioned over the phone, after trying to get contact with, you know, he didn't like my questioning. Because obviously didn't know my background. But I'm glad I questioned those things. 

CHAIR: Okay. Thank you very much. Now, I will just check whether there is any legal representative that may request an opportunity to ask questions of Anthony. 

MS EASTMAN: Chair, no one has spoken to me about that or flagged that that's the case. 

CHAIR: Alright. In the absence of somebody leaping up either physically or metaphorically, we will assume there are no questions. In that case, Anthony, thank you very much for your evidence. Thank you very much for sharing your experiences and that of your mother. We very much appreciate your willingness to do that and to give us the benefit of what you have learned and what you have done for your mother. Thank you very much. 

ANTHONY: Thank you. 

MS EASTMAN: Thank you, Chair. Could I tender into evidence for this public hearing Anthony's statement. And accompanying Anthony's statement will be a copy of the State Administrative Tribunal orders dated 28 July 2020. 

CHAIR: Yes. 

MS EASTMAN: A letter from the manager, guardianship team, Office of the Public Advocate dated 8 March 2022. And further State Administrative Tribunal orders from 14 June and 15 August. Could you receive that material together and mark those documents and the statement Exhibit 30.001 through to 30.005. 

CHAIR: Yes, those documents can be admitted into evidence and given those markings. 


CHAIR: Ms Eastman, we have the orders made by the Administrative Tribunal. There are no reasons, I take it, for those orders. 

MS EASTMAN: Not that we have access to, and this will be a topic that we might explore further in evidence about when and in what circumstances written reasons are provided. 

CHAIR: And further to the question that I asked Anthony, we have the response from the guardian, but we don't have Anthony's letter of complaint. I'm not sure whether that's available?

MS EASTMAN: I think we may have that material. 

CHAIR: Well, perhaps some consideration in due course might be given to when that should be added to the tender. 

MS EASTMAN: Thank you, Chair, we will follow that up. I think there's an email complaint that we have got. 

CHAIR: Thank you. Do we now adjourn or do we proceed to a pre record?

MS EASTMAN: I would like to share with you Killara's pre recorded evidence. It's just over seven minutes. 

CHAIR: Sure. Thank you.

MS EASTMAN: And it was an interview that Killara did with one of the lawyers assisting her. And they recorded that video on 24 October. And when you watch that, I will ask you to receive the video and the transcript of the recording into evidence. 

CHAIR: Alright. Just before we start, Anthony, you are welcome to stay there or you can go perhaps next to your mother, if there is a spare chair there. Thank you. 


MS EASTMAN: Thank you. 

(Video played) 



INTERVIEWER: We are recording your story for the Disability Royal Commission. 


INTERVIEWER: Thank you for telling your story. 

KILLARA: Welcome. 

INTERVIEWER: Do you want to tell us a little bit about yourself, what's important to you in life? 

KILLARA: My family. 

INTERVIEWER: You live with your family now, don't you? 


INTERVIEWER: So who are you living with? 


INTERVIEWER: And are they your children? 

KILLARA: Yes, they are. 

INTERVIEWER: For a while were you living somewhere else? 


INTERVIEWER: How was it when you were living at [REDACTION: THE FACILITY]? 

KILLARA: It was not nice. 

INTERVIEWER: When you lived there, who made decisions for you? 

KILLARA: Ah, they did. 

INTERVIEWER: And did you get to talk to them about decisions? 

KILLARA: Ah, they, they ah, they did but I was confused, because they didn't, um, explain 
their self and I said what I had to say. 

INTERVIEWER: Who was making decisions for you when you lived at [REDACTION: THE FACILITY], who was making choices about where you lived and how you got help and care? 

KILLARA: Um, that's a hard question. [REDACTION: OPA R1] 

KILLARA: um, my, [REDACTION: OPA R1’S] my, my, sorry. 

INTERVIEWER: Is it like a, is it an advocate? 

KILLARA: Advocate, yeah, yeah. 

INTERVIEWER: Were they the people at the Office of the Public Advocate? 

KILLARA: Yes, yes. 

INTERVIEWER: Is that a person's name or like an organisation? 

KILLARA: No, it's an organisation. 

INTERVIEWER: And did they talk to you very much? 

KILLARA: No, I've never seen [REDACTION: OPA R1] in my life. 

INTERVIEWER: Did they talk to you much on the phone? 

KILLARA: No, I've never - I've spoken to [REDACTION: OPA R1] and he was quite rude to me. 

INTERVIEWER: So he made decisions about your, like, medicine, medical stuff and where you lived? 


INTERVIEWER: And you didn't talk to him much? 

KILLARA: No, I've never spoke - oh I've spoken to him but that was only for - there was somebody else for my other things, but I can't remember which one, which is which. 

INTERVIEWER: Did you feel like you had a good relationship ever with someone else that was making, you know, at [REDACTION: THE FACILITY]? 


INTERVIEWER: Did they know what you liked and needed and what you wanted in your life? 


INTERVIEWER: How did it feel trying to have a conversation with them?

KILLARA: Very hard. 

INTERVIEWER: Did they know what was important for you in your life? 


INTERVIEWER: Were you able to leave [REDACTION: THE FACILITY] at some point? 


INTERVIEWER: Why did you want to move out of [REDACTION: THE FACILITY]? 

KILLARA: Because I want to live with my son, [REDACTION: ANTHONY], and get a better life. 

INTERVIEWER: How did you end up leaving [REDACTION: THE FACILITY]? 

KILLARA: My son,[REDACTION: ANTHONY], picked me up, ah, and helped me move into his house. 

INTERVIEWER: What do you remember about what he did to help you leave? 

KILLARA: He come and seen me every day at [REDACTION: THE FACILITY]. He was there for me and, um, yeah. 

INTERVIEWER: When did you and [REDACTION: ANTHONY] decide that you'd like to actually get out and get better health care? 

KILLARA: Health care? Was it health care?

INTERVIEWER: Yeah, health care. Was that part of your decision to move out, get better health care? 


INTERVIEWER: What was your health care like when you were at [REDACTION: THE FACILITY]? 

KILLARA: Pretty poor. 

INTERVIEWER: Can you tell us a bit more about that? 

KILLARA: I was very depressed, and I was depressed and there was some, I was depressed with one lady, she didn't do things at [REDACTION: THE FACILITY] and I was annoyed at and the thing was there at that place was very poor. 

INTERVIEWER: And if you brought that up, if you brought it up that you weren't happy about things in your home where you lived, what would happen? 

KILLARA: They, they won't listen to me. 

INTERVIEWER: Did you get medicine and medical support at [REDACTION: THE FACILITY]? 


INTERVIEWER: How was that medical support you had there? 

KILLARA: It was - the only medical thing I had is my tablets for my fits and that. 

INTERVIEWER: Do you feel that you got to have a say in your health care? 


INTERVIEWER: And did you want to have a say in your health care? 


INTERVIEWER: How has [REDACTION: ANTHONY] helped you around your health care and medical things? 

KILLARA: He's been there for me, he supported me. He's, um, we are like a team and, yeah. 

INTERVIEWER: And how did your life change when [REDACTION: ANTHONY] started to support you? 

KILLARA: [REDACTION: ANTHONY] come with me when I was out [REDACTION: THE FACILITY]. We went to the meetings, the, um, we did win, for my trustee, sorry my trustee, [REDACTION: OPA R1] was my trustee. 


KILLARA: Yep, and [REDACTION: OPA R1] wasn't very nice. He didn't listen to me, where I was living. He never answered his phone, yep. 

INTERVIEWER: Yeah, did you feel hopeful about your future when you were living at [REDACTION: THE FACILITY]? 

KILLARA: I felt like I never had a future at [REDACTION: THE FACILITY]. 

INTERVIEWER: What are you looking forward to next in your life? 

KILLARA: Looking for a house. 

INTERVIEWER: Who are you going to live with in your new home? 

KILLARA: With, ah, with myself. 

INTERVIEWER: And who is supporting you while you look for a new home? 


INTERVIEWER: How do you think it's going to be living in your own house? 

KILLARA: It's gonna look good. 

INTERVIEWER: And you're looking forward to – 

KILLARA: Yes, I am.

INTERVIEWER: - having your own home? 


KILLARA: My goal is to get a Homeswest house, to get a dog and to get a job. That's my goal. 

INTERVIEWER: You're sharing your story with the Disability Royal Commission, what would you - what do you hope comes out of you sharing your story?

KILLARA: I hope it changes someone's life down the long run, and I hope no-one goes through it like I did.

(Video ends) 

MS EASTMAN: Commissioners, thank you very much and thank you, Killara, for coming to the hearing room and for sharing that story. We know it's a very hard thing to talk about very personal stories and stories about family and stories about yourself. So, we thank you for sharing your story with the Royal Commission and working with your lawyers to do that recording for us. So, thank you, Commissioners. If I tender Killara's video recording and we also have a transcript. If you could mark that Exhibit 30.006 and 30.007. 

CHAIR: Yes. Those two documents or items will be admitted into evidence and given the exhibit numbers to which Ms Eastman has referred.



MS EASTMAN: Commissioners, we are making good time, but it may be appropriate to adjourn for lunch now, and I'm in your hands how long you would like for lunch. 

CHAIR: If we take an hour and resume at, let us say, 1.45pm. Would that be convenient? 


CHAIR: Alright. Anthony and Killara, thank you very much again to both of you, Anthony for giving evidence, Killara for letting us see your talk which we have just seen on the screen. Thank you very much. We will now adjourn until 1.45pm.



CHAIR: Ms Eastman.

MS EASTMAN: Thank you, Chair. Thank you, Commissioners. Our next witnesses, you will see, are in the hearing room with us and we have a panel. I'm very happy to welcome Alice Barter and Christine Grace, and I think they are both going to take an oath. 

CHAIR: Ms Barter, Ms Grace, thank you very much for coming to the Commission and to give evidence in a panel. A small panel, but a panel nonetheless. If you would be good enough to follow the instructions of my associate, who is just to your right, she will administer the oath to you. Thank you very much. 

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


MS GRACE: I do. 



CHAIR: Thank you very much. I will now ask Ms Eastman to ask you some questions.


MS EASTMAN: Commissioners, the witnesses have each provided a statement. I will start with Ms Barter, if that's okay. So, you are Alice Barter? 

MS BARTER: Yes, that's correct. 

MS EASTMAN: And you are representing the Aboriginal Legal Service of Western Australia? 


MS EASTMAN: You have prepared a statement dated 17 November this year? 


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


MS EASTMAN: And are its contents true and correct? 


MS EASTMAN: Alright. I might start with you on introducing you and the Commissioners having a sense of the work that you do, and your contribution to this hearing. Before I do that, I think you wanted to say something in opening in relation to this morning and also just acknowledging. 

MS BARTER: Yes, thank you. Before I start, I would like to pay my respects to the Wangal people, the traditional custodians on the land we meet today. I pay deep respect to their elders past and present. I would also like to pay my deep respects to Anthony and Killara. I would like to acknowledge their strength and resilience, as well as the strength and resilience of all my clients and colleagues at the Aboriginal Legal Service of WA. I'm a Wajala person, or a non-Aboriginal person, and I'm not here to speak for my clients, but I hope to bring my clients' very important stories to the Royal Commission to highlight some of the systemic issues. 

MS EASTMAN: Thank you, Ms Barter. So, you have been the Managing Lawyer of the Civil Law and Human Rights unit of the   I'm going to probably mix the words up, so I'm going to say Aboriginal Legal Service. Is that okay? 


MS EASTMAN: And you have worked in that unit since 2013. And you have worked for the Aboriginal Legal Service since 2005. Is that right? 

MS BARTER: Yes, that's correct. On and off since 2005. 

MS EASTMAN: And you have worked also as a criminal lawyer up in Port Hedland? 


MS EASTMAN: And you also have obtained a Master of Criminology from the University of Melbourne. 

MS BARTER: Yes, correct. 

MS EASTMAN: In terms of your particular roles and functions at the Aboriginal Legal Service, what can you tell us about your particular responsibilities? 

MS BARTER: The Aboriginal Legal Service is an Aboriginal community-controlled organisation. 

MS EASTMAN: Now, I'm going to have to ask you to slow it right down. So feel you are going in slow motion, and you are probably then even going quickly. Slow it right down. 

MS BARTER: Yes. I apologise to the interpreters. 

CHAIR: You are the 125th witness that has had to be told to slow down, so you are not alone. 

MS EASTMAN: I'm trying to get in early. 

MS BARTER: The Aboriginal Legal Service is an Aboriginal community-controlled organisation. We have a very large criminal law practice with offices across the whole of WA and a head office in Perth. And so we have a lot of experience in representing people in complex indictable criminal trials and also in Magistrates Court and duty lawyer work, and many of our clients in those courts are subject to guardianship and administration orders. 

We also have a family law team who practices predominantly in care and protection work. And then we have my team, which is the Civil Law and Human Rights unit. We assist clients with a lot of police complaints and do a lot of police accountability work. We assist clients in civil claims against the police and also against the Department of Justice, including the prisons. We represent clients in coronial investigations and inquests. We also assist clients in racial discrimination matters, and we also assist clients in false imprisonment matters and generally systemic advocacy. 

In addition to that, we have some programs at the Aboriginal Legal Service. We have a Custody Notification Service, so every time an Aboriginal person is taken into police custody in WA, they call the Aboriginal Legal Service and have access to an Aboriginal lawyer or support worker or a non Aboriginal lawyer. We also have a Youth Engagement Program, a Bail Support Service and a Work and Development Program. So, a lot of our clients are very vulnerable, and they are really subject to a lot of government control and have a lot of interactions that are often negative with the government in WA. 

MS EASTMAN: I will just pause there. And, Ms Grace, can I turn to you. You are Christine Grace? 

MS GRACE: Yes, that's correct. 

MS EASTMAN: And you are speaking on behalf of Kin Disability Advocacy Inc - is that right? 

MS GRACE: Yes. Correct. 

MS EASTMAN: And you prepared a statement dated 17 November this year? 


MS EASTMAN: And do you have any corrections or amendments to your statement? 


MS EASTMAN: And are its contents true? 


MS EASTMAN: Now, I want to ask you about Kin Disability Advocacy, if I can call it Kin. But may I start just with your background. You are currently the Advocacy Services Manager at Kin? 


MS EASTMAN: And you commenced working at Kin in July 2016? 


MS EASTMAN: And Kin has expanded quite a lot since then. Particularly because of the introduction of the NDIS. 

MS GRACE: Yes, that's correct. 

MS EASTMAN: Now, in terms of your role as the Advocacy Services Manager, can you tell the Royal Commission what does that role involve and what do you do? 

MS GRACE: I provide   I manage the Individual Advocacy Program and contribute to the Systemic Advocacy Program that Kin has. We have funding from DSS under the National Disability Advocacy Program and the Royal Commission Decision Support, and we also have funding from Department of Communities in Western Australia to address state issues. 

MS EASTMAN: Okay. And do you supervise 13 advocates? Is that right? 

MS GRACE: Yes, I supervise 13 staff, Individual Advocacy Officers, four of whom are in regional Western Australia. We have two Advocacy Officers in Broome covering the West Kimberley. We have one advocate in Newman covering the East Pilbara, and one in Mandurah covering the Peel area. 

MS EASTMAN: And what can you tell us about Kin as an organisation? It's an independent disability advocacy service, but what do you do and tell me about your clients? 

MS GRACE: So Kin is an advocacy service specifically working in a culturally diverse manner, culturally safe manner. Inclusive of people from Aboriginal nations and people that need that extra support in relation to engaging with advocacy. Our staff are all expected and trained and deliver services in a culturally safe, culturally responsive manner. We don't expect our staff to know everything about each individual's culture, but we do   we do know that they will research to find out how to best deliver a safe service to that individual. 

MS EASTMAN: And your service is not specific to First Nations people. 


MS EASTMAN: And you have told the Royal Commission, I think, that you have got 464 clients from 66 different ethnic backgrounds. Is that right? 

MS GRACE: Yes. That's correct. 

MS EASTMAN: The largest proportion of clients being from a Middle Eastern background? 


MS EASTMAN: Followed by First Nations people? 


MS EASTMAN: People from African decent? 


MS EASTMAN: And then European after that? 

MS GRACE: That's correct. 

MS EASTMAN: And a lot of your work involves using interpreters and the translating services. Is that right? 


MS EASTMAN: What can you tell us about working with clients to support them in advocacy where you also are using interpreters? 

MS GRACE: Our staff are required to engage with interpreters to ensure that the clients fully understand the context of what's being said, what the issues are and that the client has, I guess, capacity to engage with our staff and tell their story to our staff in their first language. 

MS EASTMAN: And some of the services and supports that you provide include individual advocacy for clients. Is that right? 


MS EASTMAN: Systemic advocacy? 


MS EASTMAN: Support for clients who wish to self advocate through self advocacy training and peer support? 


MS EASTMAN: Programs and projects, and one, I think you have mentioned, working with a Royal Commission and helping clients engage with this Royal Commission? 


MS EASTMAN: And educating members of CaLD communities about the advance health directive. Is that right? 


MS EASTMAN: And also looking at improving the capability of State Government support schools and support centres to engage parents and carers of children with disability from CaLD background. Is that right? 


MS EASTMAN: There is quite a range of services that are provided across the community in Western Australia. Is that right? 


MS EASTMAN: Okay. And now I want to turn to a topic to   that we have in common, and that is how each of your respective services have become involved with guardianship and administration for clients in Western Australia. So, Ms Barter, can I start with you. In your statement, I think you have addressed this at paragraphs 7 through to 12. But what you can tell the Royal Commission about, among the wide range of legal services that you provide, the particular part of work concerning guardianship and administration? 

MS BARTER: Yes, all the lawyers have had some dealings with the Public Advocate and the Public Trustee over many, many years. We have had a lot of clients ring up in distress and make complaints about those officers. Unfortunately, we didn't have any capacity to assist clients substantively with those issues, and we didn't have any capacity to represent clients at the State Administrative Tribunal. In mid   

MS EASTMAN: Can I   I mean, you heard me say something about capacity this morning. What do you mean by capacity? Is it a funding issue? A skills issue? Or just not enough time to assist people? 

MS BARTER: Half of the funding issue and half of the time issue. Without going into the full funding structure, we are funded predominantly through the National Legal Assistance Program by the Federal Attorney General's Department, and through that funding we don't have specific funding for guardianship and administration matters. We haven't historically assisted people with them. 

However, when we receive funding under the Your Story Disability Legal Assistance Service in relation to assisting clients engage with this Royal Commission, we saw that as an ancillary part of that work and saw the huge need and the huge unmet legal need that clients were appearing to the State Administrative Tribunal without legal representation and we started assisting clients both with advice and with representation. 

MS EASTMAN: So how long has the Aboriginal Legal Service been involved in providing legal advice and legal support to clients in the guardianship and administration system? 

MS BARTER: So only for the last two and a half years, since about mid-2020. 

MS EASTMAN: And, Ms Grace, over to you. In terms of the wide range of services that Kin offers, what can you tell the Royal Commission about the involvement of Kin in guardianship and administration? 

MS GRACE: Kin is funded to do disability advocacy. We don't have a lawyer on staff. We are not funded to provide legal services. So, our advocacy around state administration issues, guardianship and administration is from a point of view of advocacy support only, not representation. So, we would typically assist a person to apply for a review, support them through the hearing, assist them to collate evidence or, where relevant, access evidence that's already at the State Administrative Tribunal, and, if invited to do so by the member, we would speak with them to support what they are saying. And also ensure that support is provided in a safe way. 

So, we make sure that staff at the State Administration Tribunal know that an interpreter may be required or there might be safety measures that need to be put in place to make it possible for a person to go there. Where it's been identified that a person has not understood the process that they have been through or what the orders are, we will spend time with them explaining what does the State Administration Tribunal do, what does the Office of the Public Advocate mean, what is an administration order, and go through that so that by the time they have made informed decisions about what their next steps are, they have all the information in a manner that they can understand it so that they can make informed decisions about what the next steps are for them. 

MS EASTMAN: So what training do the advocates have so that they have the knowledge about being able to explain some of these systems and processes? 

MS GRACE: So our advocacy team comes from   sorry, I will just have a drink of water   the advocacy team is made up of a number of different specialist skill sets. So, we have people with a background in youth work. We have people with a background in community services. We have people with a background in social work. In our regional offices, we have one staff member that's an accredited Aboriginal health practitioner and another staff member who has been working in the community service and health sector for many years. We have another staff whose background is within the Aboriginal Legal Service, and our Peel officer comes from a background of community services, employment services and social services in a different country. 

MS EASTMAN: Thank you. Now, you have both identified that over the last 12 to 18 months that each of your services have observed a number of guardianship and administration-related issues, particularly for First Nations communities that have caused both your organisations to have some concerns, and the evidence that we are going to address now or be focused on, what those concerns are and how those concerns arose. So, Ms Barter, can I start with you in terms of what were the concerns over the past 18 months to two years you have observed at ALS? 

MS BARTER: We have had concerns about the cultural responsiveness and trauma informed approach being taken by both the Public Advocate and the Public Trustee. It's important to recognise that, for First Nations people, they have been subject to a lot of government control since colonisation, and they have the subject of protection policies. For example, in WA, we had the 1905 Aborigines Act which meant that a Chief Protector had total control over Aboriginal people's lives, who they married, where they worked, even took their money when they worked. And there's a lot of reference to stolen wages these days. 

I've seen some State Government records where women have had to write to the Chief Protector to get hosiery or to get new boots, so there was a huge level of control under the guise of protection. As part of that, there was a recognition that the government thought that they knew best, and what my clients tell me now is that there's a continuation of that through the government systems. The history is important because every First Nations person has been affected by it, and the other thing I should have said is the children being taken away. 

And so the intergenerational trauma and the trauma from the Stolen Generations means that a lot of our clients have a lot of distrust for government agencies. And then that is compounded when they feel like their control is being taken away from them and that they don't have a right to self-determination anymore. And so the government agency having a recognition of that, I think, is really important, and that's something our clients say they just don't feel there is that real understanding and empathy of that position.

In addition, our clients find it very difficult to speak with their allocated guardian or trustee. Anthony and Killara spoke about it this morning. Our clients find it very difficult to get through on the phone to speak with the allocated person. My understanding is that there is very few face-to-face meetings. So, that means that the person the subject of the orders does not feel like their decision maker really has any understanding of them, their lives, their history, their family, and how they live, is one of the quotes that our clients have said. "How can they make decisions about me when they don't see how I live and know how I live." So, that's a huge issue in relation to our clients. 

The other big concern is for people who have had orders made for them and, therefore, deeming that they don't have capacity to make their own decisions when, in fact, if they had some supported decision making supports around them, some informal supports through family or through NDIS or through other supports, they actually could be more involved in their decision making. So we see that as a gap. And the final really important one is the involvement of family, which again was raised this morning. 

Families being excluded from the process and families not being told what's going on and being encouraged to be part of their loved ones' decision making. One of our clients who is Case Study C in my statement said that she felt like her family member was taken away from her when orders were made for him and that that was a retraumatisation like the Stolen generations. Another client just recently said to me that she felt like her loved one had been taken away and that no one listens, no white people understand. And that the system has damaged us, and she said, "We're controlled. We're not protected.” And I think that really highlights the issues. 

MS EASTMAN: Ms Grace, can I ask you, you have set out some of the concerns in your statement in paragraph 17 onwards, but   and you have also shared some case studies to highlight those concerns. What would you like to tell the Royal Commission about the concerns that Kin has observed in First Nations communities over the past 12 to 18 months? 

MS GRACE: For the last 18 months, we never had an issue arise in the   as far as our regional advocacy in relation to guardianship or administration. Some of the issues around when a young person is leaving the care of the Department of Child Protection and Family Service, and there's an assumed   an assumption is made that the person leaving care (1) needs a guardian and (2) the guardian should not be a family member. Even when the   the person being cared for has been in stable care since they were infants. 

And at no stage is there a conversation   like, transition planning, the conversation with the kinship carers that actually they could do this role for the person they are caring for and what sort of supports might they need if they were taking   if they were to take on that role. The assumption was made that they need someone outside of the family, either a independent community guardian or an Office of the Public Advocate-appointed guardian. 

MS EASTMAN: And that's a trend that you have seen in the last, what, 12 to 18 months? 


MS EASTMAN: And in terms of the work that you've done with those clients, have you been able to get any sense as to why that might be the case? 

MS GRACE: The common denominator is in relation to making decisions, especially around what supports should be put into someone's NDIS plan. There are other concerns around administration, especially if the person has a compensation payment for different reasons, but mainly as far as guardianship goes, it's around making decisions in relation to NDIS supports. 

MS EASTMAN: I want to ask you both about the experiences of your clients, but also bringing your experience to bear on this, in terms of when the guardianship and administration process might start for somebody. So, the Royal Commission has heard that often people are unaware that there may be an application seeking orders to have substitute decision making made for them and it won't be until either they have found themselves attending a tribunal, be it in person or by telephone, or hearing about the orders later. Can I ask both of you, has this been a problem you have seen in your respective practices of people not knowing that they may be subject to orders being made? 

MS BARTER: Yes, I think that is the case. I'm just trying to think of specifics. I know there are definitely clients who haven't been aware of orders. I also know of clients who have had some awareness but haven't really understood what the orders mean and the distinction between the Public Trustee and the Public Advocate. And also the children who are leaving care, I echo what Ms Grace said, that we have seen quite a few clients who have had orders applied for as part of their leaving care plan and that they have had very limited involvement in that. But the ones who have come to my attention are the ones who have called the Aboriginal Legal Service for assistance, and so I don't know how many others there are who may have not been in a position to do that. 

MS EASTMAN: And in terms of the clients who may be subject to the guardianship or administration arrangements, is your experience that they tend to be younger people rather than older people? 

MS BARTER: My experience is all ages. We have clients, yes, all ages from young   young to elderly who have orders made against them. I'm sorry, I'm not sure of any more specific stats. 

MS EASTMAN: That's okay. Ms Grace, just in terms of your clients that you assist, do they tend to be younger people or older people? 

MS GRACE: Ones in regional areas tend to be younger people. And we've had clients who are aware that an order   an application has been made, but they think it's just someone, I guess, more formal to assist them to make decisions around supports and services. In one case, the client or the family were aware that there was a hearing, but they thought the hearing was something else. They didn't know it was a guardianship and administration hearing. 

MS EASTMAN: So, in that circumstance, how do the advocates at Kin step in and support the person or the families in those circumstances? 

MS GRACE: In those particular circumstances, orders were already made before the families approached Kin. So, then Kin would assist them to firstly understand the context of what the orders are, talk to them about what their options of what to do next are. If our staff in the regional areas haven't had a lot of experience in the guardian   in the State Administration Tribunal area, they will call me and we will have a meeting   a family meeting with the family involved, the individual, and the regional advocates from that area. So, that, again, that the families or the individuals have the information they need to decide what they wish to do next. 

MS EASTMAN: So once the orders are made, has it been your experiences in your services that people feel like, well, what can we do about this? Or have you got a sense that people are very, you know, interested in challenging those orders or seeking to have those orders revoked? What's been your experience of that? Perhaps, Ms Grace, can I start with you? 

MS GRACE: Yes. Once an order is made and, I guess, the individual or the families that are the primary carers of that individual understand the context of that order, they often find that they are now being separated from the decision making about the person subject to the guardianship order. And then they want to review that order. 

MS EASTMAN: And do you help them sort of work out how to go about doing that? Or does that involve having to contact a legal service? 

MS GRACE: Well, there is two parts to that. Yes, we would refer them to legal services. Access to legal services is limited because capacity for community legal services is very low. And so often the only options that our clients have is to self-represent with the support of advocacy. And so we would support them through that process. 

MS EASTMAN: Ms Barter, we heard Anthony's evidence earlier today about an application that he made in relation to Killara's medical treatment and decisions. And the Chair asked him of, "Why didn't you apply for an order more generally?" And he said, "Well, I didn't have the knowledge, or I needed to get legal advice." You have represented Anthony in part of his processes of working through the SAT and the systems. Has Anthony's experience been something that's reflected among other clients that you've had in having a little bit of knowledge but not a lot of knowledge and requiring the assistance of lawyers to be able to take action? 

MS BARTER: Yes, I think there are all different types of families. So, there are families who have fantastic members who have education at tertiary level, such as Anthony, who has some idea of these sorts of systems and what they can do about it. There are other families who don't have the education level, and there are other families who, you know, have got a lot going on and are finding, you know, survival pretty difficult. That's particularly in the regions. 

So I think there's a difference between the different families but what they all have in common is that they will fight for their family member. And a client recently said that she had asked and asked and asked for a review. From my understanding is often the orders are made for the maximum five-year term, which is a long time, and this particular client said that she had been trying to seek a review, but it wasn't until the Aboriginal Legal Service got involved that we managed to be able to assist her with the paperwork and actually get that back before the tribunal. 

So, I think there are a lot of people who find that process difficult. Also, the tribunal is based in Perth and so if you live in the regions it can be very difficult to even have access to that place. And one client who was a child who had turned 18 and an order had been sought as part of his leaving care plan   I'm just checking, I think   I'm just trying to check which case study it is. Sorry. 

MS EASTMAN: That's alright. I will see if I can turn that up for you. 

MS BARTER: I think it's Case Study M at paragraph 78. He wasn't aware of the hearing. Sorry I will just make sure that   

MS EASTMAN: Is it L? That was the one I'm wondering. 

MS BARTER: Yes, I think it is M I'm thinking of. Sorry. Apologies. He only became aware of it because his criminal Defence lawyer made him aware of it, and then, unfortunately, he was not able to be   we weren't able to assist him on that day. And the order was made five years. That's him. There was one other. Sorry, they are all men around the same age. There is another client who, once we did advise him that we could seek a review and assist him, we didn't assist up until that point. He said, "Five years is okay. I will just wait the five years" because he felt so disempowered and there was no point in looking into it further. So we do also have those clients who sort of just think what's the point in engaging with this system. 

MS EASTMAN: Can I ask you about when the clients have engagement with either the person who serves as their guardian, it will be a person who exercises the delegation from the Public Advocate or a delegate of the trustee. We have heard   and I think this might reflect your experiences   that there might be very little contact with the guardian or the trustee. There's little day-to-day contact. And people might not even meet their guardian or trustee from time to time. Is that something that your clients have experienced? 

MS BARTER: Yes. Definitely. 

MS EASTMAN: And, Ms Grace, is that   

MS GRACE: Yes. They experience   in fact, just last week, in our   one of our regional offices, one regional advocate received an email from an appointed guardian that was appointed over 12 months ago requesting that the advocate provide information to the guardian on how the guardian's client was doing. It's   communication between client and the   either the Public Guardian or the Public Trustee is challenging at best. 

One appointed guardian for one of my clients, or the parent of one of my clients, phoned me because she was having difficulty communicating with the client. It was on the record that the client needed an interpreter, but the guardian insisted that the client could speak enough English to engage with the guardian without an interpreter. But it was very clear to me that while the client may have had some functional English, the client was not provided with sufficient information through a guardian that she could give informed, appropriate responses to the calling guardian. 

MS EASTMAN: Do you think, if there is a lack of communication or direct contact, that that might create some confusion in the mind of the person for whom the orders are made about who provides services or decide what services or what doctors to see or when to see doctors? Do you think there is some confusion about their guardian or administrator being like a case manager, rather than the person who just makes decisions? Do you see that? 

MS GRACE: I think the appointed guardians make it very clear that they are not case managers. But that   but I guess within the role of a guardian, it's   there needs to be   they need to be getting information independent of service providers to make informed choices about what is in   you know, how to best, I guess, support the client that they're supposed to be representing.

MS EASTMAN: Do you mean by that, that there should be an expectation that the guardian isn't somebody who just approves in the sense of yes or no, but the expectation is that the guardian will make decisions by looking at a full suite of information that might be relevant to the decision at hand. Is that what you mean? 

MS GRACE: Yes, that's correct. 

MS EASTMAN: And, Ms Barter, what's been your client's experience, if there's been any confusion about the role of a substitute decision maker who just makes decisions as opposed to managing all of the services or having a case manager type role? 

MS BARTER: Yes, I haven't heard clients use that case manager sort of language before. But what I have been told is that they feel it's very reactive, the decisions made by mainly the Public Advocate but also the Public Trustee. So, for example, if a client needs medical assistance or housing, we have had many clients who are homeless, who are under orders, that it would only be once someone take as a decision to the Public Advocate then they will make a decision, rather than proactively making sure their clients have got housing or have got medical services. If I could refer to Case Study F at paragraph 47 of my statement, F was a very special client to all of us at the ALS. Sorry, I'm going to get emotional. 

MS EASTMAN: Tell us about her, and if you do, I will jump in. 

MS BARTER: Yes, thank you. She was very, very special. She had experienced every single type of trauma that our clients had experienced. She was involved in a motor vehicle accident when she was quite young, and she had lost the feeling in her legs, so she was a wheelchair user. She also had an acquired brain injury, which made her quite difficult to communicate with. The way she communicated is she used the F and the C words. That was just the way that she spoke, and I think a lot of carers and service providers found that quite disrespectful, despite her not meaning any disrespect. It was just the way that she communicated. 

And she would get very dysregulated very easily. She had a lot of trust issues from all the things that she had been through. But she would come to the ALS and say, "No one else is helping me." Despite being under orders. There was one time where she was the   the police had taken her from her home because her carers were not able to calm her down and she needed serious medical attention. She had very bad pressure sores that had progressed to septicaemia. 

And the police took her to a hospital in Perth and the hospital workers didn't want to help her because she was being "difficult" in inverted commas. And she had nowhere else to go so she came to the Aboriginal Legal Service office, which, you know, we are not a medical service, but we calmed her down and called an ambulance. She ended up passing away due to those pressure sores, and it was so heartbreaking for us because she should have had help. She needed help. She needed help to make her decisions, and she needed support workers who were patient and kind, and she needed medical staff who were going to help her deal with these pressure sores. 

But because it was so difficult for her to get assistance she got really sick and she passed away. And it was one of those examples where we as lawyers had tried to engage the Public Advocate in her care. We tried to connect both the hospital and the Public Advocate together to talk about the decisions in relation to her treatment, but often the Public Advocate didn't even know she was in hospital. And sometimes the hospital staff didn't know to talk to the Public Advocate about decisions. And so we saw that as a very big gap in the way that the system could be working in a proactive way to actually make sure that someone is getting the support they need. But, unfortunately, she didn't get it. 

MS EASTMAN: If the test to be applied is to determine what is in the person's best interest in relation to the decisions to be made, what factors do you think should be taken into account to address best interests and, in F's case, for example? 

MS BARTER: Before I answer that, best interests model, I do have some issues with because it brings the "we know best" ideas versus the supported decision making model. So, I will just preface my response with that. In relation to this woman's best interests, you have to   in my view, you have to speak to the person, you know, and give them that autonomy self determination as to how they would like decisions made about them. 

You also need to take time to speak with people, and I understand due to resourcing and other considerations, the advocates don't always have the time to take with people. Come back to the face to face communication that we were talking about earlier. In my experience with that particular client, with other clients, really taking hours to talk to them, to yarn with them, to connect with them, to empathise with them, to put yourself in their shoes, and I've heard clients say at times about decision makers. "You need to put yourself in our shoes or our loved ones' shoes.” 

And so, sorry, coming backing to the question of best interests, I think, is listening to the person and once they are engaged in their own decision making, then, in my experience, they are going to be willing to listen to doctors. And, you know, because of her ABI she had a lot of issues with   she didn't like staying in hospital for example so she would self discharge or they would discharge her due to behaviour. So, in my experience with her, when she felt about her own decision making and felt listened to and felt safe, really importantly, then she would stay and she would have the medical treatment that she needed. 

MS EASTMAN: Can I ask you both now about the concept culturally safe or culturally responsive practices, which is a topic you have both raised in your statements as a very important aspect of supporting somebody to make through decisions or think through problems. Ms Grace, can I start with you. In terms of practising cultural safety and the work your advocates do, what can you tell the Royal Commission about why cultural safety is important, and if you want to explain how cultural safety practices operate within Kin, that would be very helpful as well? 

MS GRACE: Cultural safety matters because, I guess, individuals make decisions based on   based on their culture. Based on the family system they are in based from their own experience. And all of those things come, into I guess, into play in making a decision. And before you can make   before an individual can make decisions, they need information that's presented to them in a culturally appropriate way. And in a credible way. So   but they then feel confident with the people they are engaging in and they build trust and rapport. 

If you don't have those basic things as a start there's no point   you know, it's really just a superficial acknowledge   engagement in that sense. So, making sure that a client feels safe culturally is, I guess, the starting point. 

MS EASTMAN: How do we know what safe might be? How do we know that we have created a safe space if, even as advocates, we are bringing our own assumptions and our own experience. How do you create a safe space? 

MS GRACE: Ask the client what is safe for them. So, advocates would be expected to research something about particular cultures they work with. So, for example, we might initially have to call a client with an interpreter. We might need to ask for information either from the client or the referrer first about, you know, what's going to work. Do they need a specific interpreter? Do they need an interpreter of a specific gender? Do they need an interpreter not from their own cultural background, but from a different cultural background because of confidentiality issues? Do we need to think about engaging an interpreter from another state for safety reasons? 

As far as   and that then allows the initial conversation to start about meeting their needs. In relation to our regional clients, when we employ staff we employ staff from the local communities. They live in the local communities. They have a long term relationship with those communities and are well established that – well-established experience in those communities. They understand the cultural groups in that context, and people will come to them for information. If they can't provide that service, for example, because they are women and it's men's business, they will find the appropriate person to support that client. That's where it starts from. And then, I guess, it builds from there. 

MS EASTMAN: And, Ms Barter, for you, thinking about cultural safety for First Nations people, particularly given the historical context that you have described a little earlier, what are culturally safe practices and how are they exercised in day to day engagement with clients? 

MS BARTER: That's a huge, huge question. So, I will try and perhaps summarise. I think you could spend a couple of days talking about what's a culturally safe response, and also, I would like to again that I'm Wajala, so I'm not Aboriginal, so I need to be careful the way that I speak. I think the in number one thing is being aware of the history of colonisation and the fact that all of us, settlers, colonists, we all have privilege and we live on land that was not ceded. That's first point, and we always need to recognise that, and we need to recognise, particularly as lawyers, in my view, that we are part of the system of oppression. 

Secondly, there needs to be an understanding, of the different cultural nuances and groups. So, for example many First Nations groups have more of a sharing culture when it comes to resources, as opposed to the more sort of mainstream white culture where our finances are our own, and that can come up a lot in Public Trustee matters. There are other importances like connection to country, connection to family, and the extraordinarily complex kinship structure. 

Ms Grace said a good way is to ask the client, and I agree with that. I think also another good way is to ask the family and community, and particularly elders. So, when I'm particularly in more regional remote areas, I will always ask if I'm not sure, and I will always come from a place of ignorance and ask, "Is this okay?" or "Does that person need that person in the room or do they need that person in the room?" because often we will assume   you know, for example, they might   a man, you might say, "Well, your mother in law should be the one who comes and supports you.” And he will say, "No, no, for cultural reasons we can't be in the same room." 

So, being sort of alive to those issues but not being an expert in them, because we never will be, but asking those questions an being aware of it. The other really important factor is to have Aboriginal staff and Aboriginal leadership. So, it's easy for me, because I sit under an Aboriginal Board, an Aboriginal CEO and an Aboriginal Deputy CEO, so I take all my lead from them. And we have nearly 50 per cent Aboriginal staff at the Aboriginal Legal Service. 

So, I know Anthony said it this morning too - sometimes you need to have a First Nations person in the room. And we will do that at work. We will get someone in if there's not an Aboriginal lawyer available or an Aboriginal court officer available, if it has to be a non Aboriginal lawyer, we will get someone to sit with us so that we can make sure the client feels safe. 

MS EASTMAN: The final topic I want to ask you both about   and I haven't covered everything in your statement but the Commissioners have your statement   is secrecy and the experience of having guardianship orders made and that since you are not allowed to speak about that, you are not allowed to talk about what occurred in that sense of becoming invisible, has this been an experience that you have seen for any of your clients? Ms Barter, I will start with you first? 

MS BARTER: I'm just thinking. There is an element of secrecy and not being able to speak out. I think that's for many, many reasons though. And I said before, I think often people don't know how to fight the system. Often our clients have got a lot of things going on. A lot of our clients don't have stable housing. A lot of our clients live in poverty. A lot of our clients have got children being taken away from them. And so often they just don't have the time or the energy to engage this these systems. And there is often that intersectionality of disadvantage. 

Often, I think also people just don't know about what is going on for themselves or their family members. You know, even the orders, sometimes people can't read. So, if they get an order posted to them, they won't necessarily even just know what that means. And as we sort of both alluded to, there are limited advocacy and legal services across the state. We all do the best we can, but, really, we need, many, many more service providers across the whole of WA. 

MS EASTMAN: Ms Grace, any observations from you about that sense of secrecy and being invisible?

MS GRACE: Yes, I think especially in relation to regional clients, the secrecy, shame would be   like, they have got an order they may not understand or didn't really understand what the implications are for them, or both the individual being represented and the family who are the primary carers. So, it takes a little bit of time for them to build up enough custodial to confidence to engage with advocate around telling their story, and they will only do that when they feel safe culturally to do that. 


MS GRACE: And so that means realise the importance of ensuring that advocacy staff are, you know, from   employed from the cultures that they are engaging with. Because that's the way our clients feel safe to engage. 

MS EASTMAN: Thank you. I will just check now if the Chair and the Commissioners have any questions. 

CHAIR: Thank you. I will ask my colleagues if they have any questions. First, I will ask Commissioner Ryan. 

COMMISSIONER RYAN: Just one detail that I was   you mentioned that there was   when were you talking about Case Study F, Ms Barter, you referred to the fact that the Public Guardian didn't know that the man was in hospital   or that F was in hospital, sorry, and that the staff didn't know how to speak to the Public Advocate. So there's a significant gap there. Do you have any suggestions as to how that gap might closed? Is it possible to do something about that? 

MS BARTER: Yes, I would have thought so. What we have heard already today about people actually answering their phones, I think would help. And there could be some sort of alert for when people go hospital. We have the same issue when people go into prisons. Their Public Guardian doesn't know that they are in prison or which prison they are in. So it could be as simple as an ad hoc phone call, or surely there could be, in my view, some sort of alert system for prisons and hospitals and other relevant places to make sure the relevant Public Guardian or Public Trustee knows where that person is.

COMMISSIONER RYAN: Who would trigger that? I don't mean to be in any way cynical, but it's not as if everybody has a bar code or something on them that would register that. What database would help to make it happen? I agree with you it's a gap, but I'm just trying to think has someone made a suggestion as to how   I suppose, in some instances, the person themselves might disclose they are under guardianship, and that would suggest something might happen but do you have any others?

MS BARTER: Yes I think there are two categories. One where the person hasn't disclosed, and I think that can make it very difficult for the service provider to then speak with their Public Advocate. But in this case, she had disclosed, and she had been at that same hospital many times, so they had a record she was under orders. You know, there's a lot of bureaucracy and there's lots of different government departments across Western Australia, and I'm sure the other states are the same. The Department of Health is separate from the Department of Justice so that might be trickier, but in relation to the prisons, the Department of Justice has oversight. You know, the Public Advocate and the Public Trustee sit under the Department of Justice, so I'm not sure. I'm sure there is some sort of technology way of fixing that gap. 

COMMISSIONER RYAN: Well, I guess if there wasn't technology, I suppose, usually, when someone enters the hospital, there is often a discussion about who is your family. It's rare that they would be, I imagine, entering a hospital without a discussion. I mean, maybe it would be disclosed that the person didn't want it with his family and there might be a discussion about is it possible a person is under guardianship. How would they make decisions in a hospital without knowing if a person was under guardianship? Thanks.

MS BARTER: I'm not sure. 

CHAIR: I think the last one was rhetorical. 

MS BARTER: Yes, I didn't know how to answer it. Thank you, Chair. 

CHAIR: Commissioner McEwin. 

COMMISSIONER McEWIN: Thank you, Chair. Thank you both for your evidence. My question to both of you is when you were talking about culturally safe services, and you both said a very important aspect is to ask the person themselves, we have heard in this Royal Commission of many disabled people who are isolated, who are kept from services, who don't know anything about perhaps even the world around them. How do we address those barriers? 

MS GRACE: Sometimes that can be difficult. It starts   I guess, if we   depending on the living circumstances of that person, whether there can be outreach or whether someone refers that individual to our service. Then at least we can start putting some   some support. And the first step would be letting that person tell their story in a way that doesn't compromise. Sometimes, if they are only engaging with one service provider, it makes it more difficult to engage because often, as we heard this morning, a support worker may be in the room with them or nearby and they don't feel safe to disclose that. 

So   so having some access to independent services is really important. That's why we always   when we are providing advocacy for NDIS participants, we will always advocate for the appointment of an independent support coordinator. However, not everyone subject to a guardianship and administration order are participants in the NDIS, and it's about finding out how we can safely engage with that person independently. 

COMMISSIONER McEWIN: Thank you. Ms Barter, did you want to add anything? 

MS BARTER: Just very briefly, Commissioner. I think just coming back to the sitting with someone and taking the time to connect with them as best you can. And even if they don't want to speak to you, sitting there and being with them and being present with them. 

COMMISSIONER McEWIN: Thank you, both. 

CHAIR: We have spent a fair bit of time talking about the role, in effect, of the Public Advocate or Public Guardian. In practice, what happens with the appointment of guardians or administrators when it's not the Public Advocate or the Public Trustee? Do you try to have others appointed and, if so, who are they normally? Are they family members? Are they someone who is independent? Just what's your experience with that in each case? One after the other. Ms Barter, perhaps you go first, and then Ms Grace after that.

MS BARTER: Yes. Thank you, Chair. That's one of the things we have been really trying to work with our clients to achieve. So, where the Public Advocates that been appointed, we will work very we hard with the clients to then back and have the orders removed and have a family member appointed, like what you heard this morning has happened. We find that sometimes the family members do try and tell the relevant people that they are willing and able to support their family member and assist them in decision making. 

But there can be a lot of barriers to that. So, if they live in the regions, that can be   make it difficult for them. Sometimes if they have limited phone reception, that can be a reasonable people say, "We can't get hold of you on the phone.” Sometimes, if I can say, I think there a racial discriminatory element that they think that an Aboriginal family member isn't up so the task. So, so many family members have come and said, "We want to be the one who is supporting our family member" where orders are appropriate. And they do   in my experience, they do a lot of work to prove that they are across those things. 

We have also heard that, given the NDIS is so complex, that many people find it difficult to understand, and that's a reason for orders to be made. The family members who I have spoken to have said that they feel confident enough to navigate that bureaucracy, along with specialist support coordinators, and be that person for their family. So many   in my experience, many family members are willing to do that role and sometimes do, sometimes don't. 

There are other cases where there are   I guess, limited family members who are able to step into that role, and that's when the government agencies probably are the appropriate decision makers for those people, and that's when they need to look at sort of improving their systems for those First Nations clients. 

CHAIR: Ms Grace? 

MS GRACE: Yes, in our regional   our regional experience is that the families weren't even given the option of providing the sort of guardianship or decision support. Or they won't told that under the Carers Recognition Act, they could still support the person as the primary carer to make those decisions without there being need for a formal guardianship order being made. What Kin is intending to do at some point is ensure that our regional families know that an appointment of the guardian is a last resort and if there are   

CHAIR: This is what the Act says. 

MS GRACE: Yes. If a person needs support to make informed decisions about what's best, either for themselves or the family member they are supporting, then where in the community can they go to get independent information about that? So, could it be independent advocacy? Could it be financial counselling in relation to assisting set up an appropriate budget. There is all sorts of   depending on what the decision to be made, is   depend on what service you might find   go to, to find the information you need to make that appointment. 

Now, we have supported families through a review, and in one of those cases, very recently, last week, the orders were changed that family members are now   an extended family member is now the appointed decision maker for that individual. In my view, there needs to be   the Office of the Public Advocate in Western Australia has the authority to investigate the need for the appointment of a guardian and who that guardian should be. I've only in one of these cases in my time at Kin have I ever heard of an investigation being conducted. 

And when you ring the Office of the Public Advocate to experience some concern about an individual, the standard answer is, "Make an application to SAT.” It's not   we are not a clinical service. We don't assess a person's capacity, whether they need a guardian or not. We have a responsibility to, I guess, raise concerns around vulnerable people where there are one, where there are concerns to do that. 

So, I think there has got to be more information about what in actual fact is   what the implications are of a guardianship and administration order, number one. Presented in a manner that people can easily understand. What are the alternatives to a guardianship order in relation to   I keep wanting to say people in that family's or that person's network or family, that can support   either support the individual or support the family to make informed decisions, especially where it is evidence that may be a substitute decision maker is required and build the family's confidence that they actually do have the skills to provide that and they are best placed to do so because they know that individual the best because they have been looking after that individual since infancy. 

CHAIR: Ms Grace, you said, I think, that you your organisation, Kin, has 464 clients. 


CHAIR: From, I think you said, 60 odd ethnic group, maybe a bit more. We have been talking a lot about First Nations people, Aboriginal people and guardianship or administration orders made in respect of them, and it's entirely appropriate that we do. But I'm just wondering whether the experiences we are hearing about, and the lessons we are learning concerning the way in which First Nations people can be supported to exercise decision making capacity can be applied to other groups that you're familiar with. Do we have   I understand completely, I think, the unique character of First Nations people and their experiences and so for, but, nonetheless, are there lessons that can be transferred to other groups? 

MS GRACE: Yes, yes there are. Unfortunately, even in this day and age we still get referrals to say the person needs advocacy because they don't speak English. Or they have low level spelt literacy in their own language and then in English. And even though government services in Western Australia need to comply with a language services policy, it just basic of communication. If it's   there need be to be more application to that. But, yes, I guess those issues would also apply to people from a culturally diverse background. And it starts with, I guess, meeting the individual, where   making sure that the services provided meet the needs of that individual and are delivered in a way that's appropriate regardless of what cultural background they come from. 

CHAIR: Thank you very much. Ms Eastman, there are no more questions from you?

MS EASTMAN: No, thank you. 

CHAIR: In that case, may I thank both of you for your statements and for your evidence today and for the work that you do in Western Australia. We are most appreciative of the assistance you have given us and the insights have you provided. Thank you very much. 

MS BARTER: Thank you, Chair. 


CHAIR: Ms Eastman, what can we do now? 

MS EASTMAN: Thank you. I'm going to ask you to have a 10-minute adjournment, but before we do that could you receive into evidence Ms Barter's written statement and various documents referred to or attached to her statement and mark them exhibit 30.024 through to 30.028. 

CHAIR: Yes. 


MS EASTMAN: And for Ms Grace's statement and her CV, if you could mark those documents 30.029 and 30.030. I know the numbers are not sequential from this morning, but there is a method to the approach that we are taking so that, at the end, all of documents will be sequential. Thank you. 

CHAIR: I never doubted the methodology, Ms Eastman. 

MS EASTMAN: Some may. Alright. If we could adjourn for   

CHAIR: Anyway, I will admit them into evidence, notwithstanding absence of an intelligible sequence. 



MS EASTMAN: Thank you. So 10 minutes? 

CHAIR: Yes, we will adjourn for 10 minutes.



CHAIR: Yes, Ms Eastman. 

MS EASTMAN: Thank you. Our next witness is Pauline Bagdonavicius, who is the Public Advocate of Western Australia and she will take an affirmation. 

CHAIR: Yes. I hope I'm going to pronounce your name correctly. Is it Ms Bagdonavicius? 

MS BAGDONAVICIUS: Bagdonavicius. 

CHAIR: Yes. In any case, thank you very much for coming to the Royal Commission to give evidence and for the very detailed statement that you have given us. If you would be kind enough to follow the instructions of my associate, who is located to your right, she will administer the affirmation to you. 

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



CHAIR: Thank you very much. I will now ask Ms Eastman to ask you some questions.


MS EASTMAN: Your name is Pauline   and I hope I get the pronunciation right   Bagdonvicius and you are the Public Advocate of Western Australia? I might need you just to say yes. 


MS EASTMAN: And you provided three statements to the Royal Commission. 


MS EASTMAN: Can I take you through each of the statements. The first is the statement dated 4 November 2022. Have you got any amendments or corrections to any part of that statement? 

MS BAGDONAVICIUS: No, but there was a supplementary letter provided, I believe, last Friday. 

MS EASTMAN: So I've got that   that's what I was just going to describe as the second statement. So, that's an undated supplementary statement which provides some additional material and a response to paragraph 11. So, that's a second statement of one and a half pages. Have you got that one? 


MS EASTMAN: And then there's the third statement dated 11 November 2022, and that responds to a notice from the Royal Commission to address some issues in relation to Killara's case. 


MS EASTMAN: Are there any corrections or matters that you want to raise in relation to that statement dated 11 November? 


MS EASTMAN: And are the contents of those statements otherwise true and correct? 


MS EASTMAN: Alright. I wonder, before I introduce you and take the Commissioners through your evidence in relation to your functions and powers, I thought I might start with Killara's case and Anthony's evidence this morning. You were in the hearing room this morning? 


MS EASTMAN: And you saw Anthony give his evidence and also the recording of Killara's evidence? 

CHAIR: Would you mind, in answering the question, to say  


CHAIR:   yes or no or maybe as the case may be. 

MS EASTMAN: And the statement that you have provided of 11 November responds to a range of matters concerning Killara's case and the appointment of both a guardian and an administrator. Are we right in understanding that that statement has been prepared on a review of the relevant records held by your office? 


MS EASTMAN: And you personally have had no involvement in Killara's case. You were not her guardian? 

MS BAGDONAVICIUS: That's correct. 

MS EASTMAN: And to the extent that any issues arise with respect to the appointment of the Public Trustee and the management of the financial arrangements, you can't speak to those matters. That's not your area of responsibility. Is that right? 


MS EASTMAN: And in the statement that you provided, you've sought, by reference to the documents, to identify some of the key dates and respond to some key issues identified in Anthony's statement as well. Is that right? 


MS EASTMAN: And to the extent that you have made some concessions in relation to the way in which Killara's case was dealt with, you have responded to that and been frank in the statement that you have provided to the Royal Commission. Do you agree with that? 


MS EASTMAN: So, for example, you have said on your review of the file, it appears no discussions occurred between OPA and the persons involved in the treatment and care of Killara before the appointment was made, but you say your records, for example, identified two attempts made by the investigator advocate to hold telephone discussions with the case manager at the facility and also with Anthony. So, that's an example. 


MS EASTMAN: Thank you for providing the Royal Commission with a very detailed statement that responds to aspects of Killara's case. But I wanted to give you the opportunity to say anything in response to the evidence that you have heard this morning, and there may be some matters that have you heard this morning that you were not aware of, based on the review of the records held by your office. Was there anything that you wanted to say in response to this morning's evidence? 

MS BAGDONAVICIUS: At the outset, I want to acknowledge my deep respect   pay respect to Killara and to Anthony and particularly to Anthony for his role in pursuing the rights of his mother and recognising the challenges   I mean, and recognising that, in that context, he had many challenges to overcome. I accept we should have done a better job in relation to how we worked with Killara and Anthony. One of those key issues for me is that we should have had more frequent contact with her and her son. 

Had this occurred, the guardian would have been engaged, particularly with Anthony more; decision making could have been done in a more culturally appropriate way; and the move to having Anthony providing a role in decision making for his support   for his mum, either formally or informally, could have been supported and facilitated sooner, in my view. The lack of contact and engagement in the appropriate way with Killara and Anthony by our office is regrettable. 

MS EASTMAN: When you hear stories or circumstances like that, is it something that the Office of the Public Advocate reflects on and reviews in terms of improving processes and procedures ? 


MS EASTMAN: I wanted to ask you about how some these arrangements operate in Western Australia and some of the processes, and thank you for setting that out in detail in your statement. So, your role as the Public Advocate is an independent statutory officer, and you're appointed under the Guardianship and Administration Act 1990 of Western Australia. Is it right that you are responsible for the strategic direction and control of the functions of the OPA, so the Office of the Public Advocate, and that you have to work to the requirements and the rules set out in the Guardianship Act. Is that right? 


MS EASTMAN: In terms of your particular function, section 97 of the Act sets out your primary functions. And I want to just ask you about each element there. They involve investigation of concerns about the wellbeing of adults with a decision making disability and whether there is a need for an application for a guardian or administrator to be appointed. Just pausing there, is that role performed by what we have heard as investigators? 


MS EASTMAN: Then the second function is the investigation of specified applications made to the State Administrative Tribunal to assist to determine whether a guardian or administrator should be appointed. That's slightly different function to the first function. Does that arise when applications are made and there may be a referral from the tribunal to your office to assist in relation to whether a guardian or administrator should be appointed? 


MS EASTMAN: Does any part of that role concerned making an assessment of a person's capacity for decision making? 

MS BAGDONAVICIUS: Not   not   we are not decision makers about capacity. We might collect evidence to support capacity, but we are not a decision maker. 

MS EASTMAN: So what would be involved in terms of any investigation about concerns about the wellbeing of adults with decision making disability or an investigation of specified applications made to the tribunal? 

MS BAGDONAVICIUS: It's   the concerns are focused on whether or not a person is able to make decisions in a reasoned way as to their personal situation or in relation to financial matters. So, in terms of that investigation, our role is limited to looking at whether or not there are any concerns for risk to the person, what the person's wishes are in terms of their circumstances, and gathering information in terms of that person's circumstances, their views and wishes, the views and wishes of other significant parties, including their families or service providers. 

MS EASTMAN: So just can I make sure that I understand how you are using particular expressions there. So the first you've talked about a person's decision making. What do you mean by "decision making"? 

MS BAGDONAVICIUS: Whether or not somebody has capacity to make decisions and what it   and making those decisions so that it's about looking at the situation of vulnerable people and assessing   I'm sorry, I'm getting a little bit circular. 

MS EASTMAN: So if I'm   I am trying to understand what decision making means. First of all, is decision making limited to a particular class of decisions? Is "decision making" in the way you use it limited to decisions about legal matters, for example? 

MS BAGDONAVICIUS: It could be decisions about a raft of matters which are outlined in the Act in either relation to their personal circumstances, in relation to their health, the services they are receiving, their   and whether or not, in terms of how they are managing   in terms of their financial situation. 

MS EASTMAN: So it's not   well, you don't mean decision making in term of how they make choices about anything and everything in their life, do you? 

MS BAGDONAVICIUS: No, it's also about how other people might be exploiting that person. So, the issue is around the focus on what do we need in a protective sense to put in place to ensure that this person is able to make their own decisions, are they safe, are they protected, do they need support with other people assisting them with some critical decisions. 

MS EASTMAN: And how does the   an investigator go about undertaking that task in terms of investigating decision making? I'm mindful that they are not assessing capacity. 

MS BAGDONAVICIUS: We may receive a referral to our office, for instance, by the police, where the police have had concerns that through an investigation of a family and domestic violence situation, they may have come across an older person whom they are concerned about who appears to be being neglected in the care of the family and differing circumstances around that. So, we would seek to see the person, to gain their understanding, seek to see the family, gather what information we can in terms of what service providers and supports are available to that person, and potentially work with the family, if we can find a less restrictive option to thinking there is a need for a guardian or administrator to become involved in the situation because, on the face it, it appears to be neglect. What are the options in place. What can the family do. Is there carer stress. Can we help assist them to access other services. Or do we need to progress with an application to the tribunal. 

MS EASTMAN: You also use the word "risks" a little earlier in assessing risk or determining risk. When you use that word "risk", what do you mean? 

MS BAGDONAVICIUS: It's harm, significant harm to the person, is the person at risk of significant harm by others or by themselves in terms of their living situation. And do, therefore, they need more support in their regard in relation to their decision making disability. 

MS EASTMAN: And I might come and ask you a little more about the concept of risk and assessing risk later on. Can I come back and just finish on section 97. The third area in terms of primary function for the Public Advocate is guardianship for personal, lifestyle and treatment related decisions when the tribunal determines that there is no one else suitable, willing and available to act as the person's guardian. So, that   are we right in understanding that when we are talking about the Public Advocate becomes the guardian, that occurs because there is no other suitable person to take on that role or a person who's willing and available to act as the person's guardian? Is that right? 

MS BAGDONAVICIUS: That's correct, unless I've been appointed, as occurs in a few of the cases, jointly with another person, such as a family member, to make decisions jointly with them. 

MS EASTMAN: So, in effect, if the Public Advocate is appointed the guardian you are sort of the last resort; is that right? 


MS EASTMAN: And then the final function is information, advice, and training on how to protect the human rights of adults with decision making disability. And your statement addresses some of those matters but what   when we are talking about this function in the legislation, what are we talking about when talk about the human rights of adults with decision making disability? What does that mean? 

MS BAGDONAVICIUS: It's in terms of the right for people to have less   the least restrictive option available, if they appear to have a decision making disability. If   and to the extent that a person can make their own decisions, then that is clearly what is preferred. If   and I guess all of our community education is about ensuring people   encouraging people while they still have capacity to actually inform other people of what their views and wishes are, to the extent that they can, through enduring powers of attorney, enduring powers of guardianship and advanced health directives. It is about how then, when somebody appears to have lost the capacity to make those decisions, how we ensure that they are protected in a way that still maintains their rights as people to live as independently as they can, within the   as appropriate to their circumstances. 

MS EASTMAN: So is that how the Office sort of approaches and understands the concept of human rights? 

MS BAGDONAVICIUS: In general terms. 

MS EASTMAN: Right. I want to ask you about the number of people under guardianship in Western Australia, and you have provided the following information to the Royal Commission. It's paragraph 38 of the statement. So, as at 24 October this year, there were 3213 people for whom the Public Advocate operates or represents as the guardian. Is that right? 


MS EASTMAN: Okay. You may not know the answer to this, but I think the report provided by the tribunal   by the Council has the number at 5602 applications. So, do you know the number the applications there have been for guardianship in Western Australia? 


MS EASTMAN: Coming back to the 3213 people, in terms of the particular reason why they may have decision making disability, 31 per cent live with mental illness, 28 per cent live with intellectual disability, 25 per cent with dementia, and 15 per cent of with acquired brain injury. And then there's a category of 1 per cent with disability recorded as others. In terms of helping us understand the circumstances for individuals who might live with mental illness   and that's a third of the people who have a Public Advocate guardian   what does mental illness mean within your system? What would be the defining characteristics for a person? 

MS BAGDONAVICIUS: That their primary disability is related to psycho social issues, and many would be in treatment through Mental Health Services in Western Australia. 

MS EASTMAN: Would it be a description of someone who lives with a life long condition of mental illness? Or is this referring to people who may have an acute situational circumstance of mental illness that may not be lifelong? 


MS EASTMAN: In terms of intellectual disability, does the Public Advocate's office have a working definition of intellectual disability, and, if so, can you assist us? 

MS BAGDONAVICIUS: No, it's a very broad definition that we have applied and utilised for many years. 

MS EASTMAN: And in terms of dementia, does that require the person to have a medical diagnosis of dementia? 

MS BAGDONAVICIUS: It is the diagnosis that has been identified at the time applications were made to the tribunal. 

MS EASTMAN: Okay. We asked you about the breakdown of people by reference to age. And two thirds   so 63.33 per cent of clients were aged under 65, and a third, so 36 per cent or thereabouts, over the age of 65. Would we be right in understanding that the clients over the age of 65 would, for the most part, be presenting with dementia? 

MS BAGDONAVICIUS: For the most part, but there's certainly a number of represented persons who live past 65 who have intellectual disability, or   and others with mental health illness that goes   who live much longer. 

MS EASTMAN: And in terms of the people under the age of 65, are you able to assist us in terms of the cohorts? Is this predominantly young people, say, in teenagers through to sort of early 20s? Or are you just talking about the sort of whole span in terms of the different sort of categories? I probably haven't explained that very well. 

MS BAGDONAVICIUS: It's the whole span of    who are appointed for young people from the age of 18 upwards. 

MS EASTMAN: With respect to First Nations clients, I think it's right, from your material, that 17 per cent of all people who are   who have a Public Advocate guardian are First Nations clients. Is that right? 


MS EASTMAN: How does that sit in proportion to the overall population in Western Australia? 

MS BAGDONAVICIUS: It's an overrepresentation, given that the representation of First Nations people is around, you know, 3.3 per cent. 

MS EASTMAN: That's a very significant overrepresentation. 


MS EASTMAN: Do you know if there has been any research or examination as to why that number is so high? 


MS EASTMAN: Your office hasn't done any research into examining why First Nations clients are disproportionately represented in terms of Public Guardians? 


MS EASTMAN: And 66 per cent of the clients were   or are NDIS participants. Is that right? 


MS EASTMAN: In terms of the CaLD community, at paragraph 51, you have set out in some detail the different cultural backgrounds in relation to people from culturally and linguistically diverse communities. And there's quite a sort of large range of different cultures identified in your statement, if you want to have a look at paragraph 51. Can I ask you, is the cultural background identified by a person's country of birth or is there a different way of collecting information about identifying a CaLD person? 

MS BAGDONAVICIUS: I believe it's country of birth or   I'm sorry, I actually don't know the answer to that. Perhaps I should come back to you. 

MS EASTMAN: Okay. So, just how you define CaLD or culturally and linguistically diverse, whether it's just country of birth or there's a broader definition of that. So, in terms of the number of people who are under the Public Advocate's guardianship regime, you're not able to tell us the average time that a client will be subject to guardianship orders. Is that right? 

MS BAGDONAVICIUS: That's correct. 

MS EASTMAN: You have got a database which you describe as PACMAN, and is that the database that retains all of the information of your office in relation to clients? 


MS EASTMAN: And can you just give us as a brief overview of how that system works? Because I want to understand where the difficulties are in being able to identify some of the data and information that we have asked you. 

MS BAGDONAVICIUS: Sure. We record demographic information, personal details in relation to each of our clients. We record   we have a case note system. So, we can event   they're called events, and staff enter various events under various headings in relation to matters that they are dealing with, be it as an investigation or as a   as the guardian. We also have what we call case work screens where we can record things in relation to particular orders. So, we have an investigation open and there's a particular screen for the investigation order, and then that's closed when the investigation is finished. If the Public Advocate is appointed, a new   there's a new guardianship  

MS EASTMAN: I will just ask you to slow down a little bit, if that's okay. 

MS BAGDONAVICIUS: Yes. A new guardianship screen, a guardianship screen case work screen will be opened. And that would be live for the period of that appointment. As and when we have a guardianship review, there is another case work screen opened for that. And then they are closed if and when we are   the Public Advocate is reappointed or the Public Advocate is revoked. So, it's   the system, unfortunately, at this   I mean, it's been a system that we have had in place since at the time I commenced at the office. We introduced it in the second year after I had started. It was well on its way to development at the time I started. So, that's back in 2009. 

It is a system where we can't go back in time to extract other reports. We have to do things in terms of major report runs, come 30 June, end of   you know, end of the month, in relation to the demographic information that we collect. But it's very difficult to get some information that would obviously be helpful. It's difficult to extract decisions, for instance, around people, and it's difficult to actually do that more than on an individual basis, rather than   you know, in terms of then collating that on a systems basis. 

We have done quite a considerable piece of work in the last   in 2021 looking at the impact of NDIS on the Office of the Public Advocate. And one of the key recommendations that had come out of that work, as well as the recognition that we needed to have greater resources to address the impact of NDIS with the demands on our office, in terms of staffing and other strategies around how we manage our case work, but a key recommendation has been the development of a new IT case management system, which has received and been treated as a priority for the coming budget submission process. And we have been doing the developmental work around our new system. 

MS EASTMAN: So when the Royal Commission issued the notice to collect a range of data, you were not able to provide some data that might point to sort of longitudinal trends and information to be able to sort of track whether there had been any changes in the nature of applications or the nature of the reason why a person might have decision making disability. Is that right? You just haven't got that information to do that trend. 

MS BAGDONAVICIUS: No. No, we do that trend by doing a   30 June is when we invest the resources in doing that trend information, with data cleansing every year for our annual report. 

MS EASTMAN: And would you agree with me that not being able to know the average time that a client will be under a guardianship order is a matter of concern, is it not? 


MS EASTMAN: And having that information may assist you in tracking, for example, how a client might progress during the period of guardianship, and whether there's any material changes that warrant a change in arrangements. Do you agree with that? 

MS BAGDONAVICIUS: Yes. I want to now ask you a little bit about how people enter the system, and you have mentioned earlier that one of the functions is to do the investigation. Are we right in understanding that there is any role for the Public Advocate to suggest or make an application for to the tribunal for a guardian to appointed? 

MS BAGDONAVICIUS: Yes, the Public Advocate can do that under section 97(1)(c) of the Act where we initiate what we call a community referred investigation and look into a person's circumstances. And then if we identify there is a need for a guardian or administrator to be appointed, we would make that application to the State Administrative Tribunal unless another person or party is making an application. That sometimes happens, as we were involved in that process. But mostly we make those applications where we determine there is a need. 

MS EASTMAN: And in terms of that, the process, does that process have any step in identifying an alternate guardian at all? 


MS EASTMAN: And how do you go about doing that? 

MS BAGDONAVICIUS: That is done through the investigation, by the investigator advocate or senior investigator advocate looking at who else would be an appropriate alternative. Firstly, we are looking at what less restrictive option is available. Is there, in fact   you know, and it's only where there is determined there is a need for a substitute decision maker to be appointed that we then move into exploring who is then the most appropriate person to do that. And we will try to identify family or friends before recommending that it would be the Public Advocate. 

MS EASTMAN: Is there any process in that initial investigation into concept of supported decision making and what might be of assistance to a person in making decisions for themselves with support? 

MS BAGDONAVICIUS: To an extent, we   we are always looking to see how we can support somebody not need to have a guardianship or administration order made. We don't have a formal program for supported decision making, so it's very much working with family, working with the person around what options they have available to them, and then only where there's an identified need for the guardianship or administration application, proceeding on that path. 

MS EASTMAN: If there is no formal framework in relation to supported decision making, then what principles are applied to identify the elements of supported decision making before the step is taken to apply for a guardianship order? 

MS BAGDONAVICIUS: It merely comes back to the principles by which we are working in terms of the Guardianship and Administration Act which is set out in section 4 and 51 of the Act. 

MS EASTMAN: Can I ask you this, that the process under the Act starts with a presumption that a person is capable of managing their own affairs and making reasonable judgments until the contrary is proven. That's the operation of the legislation. It's the task of the tribunal to make that determination that the presumption can be overridden. Does that mean that the tribunal's role is to assess whether a person is capable of managing their own affairs and also making an assessment of whether a person is capable of making reasonable judgments? 

MS BAGDONAVICIUS: That is a matter for the tribunal to determine. 

MS EASTMAN: If the Public Advocate is the applicant for an order, does the Public Advocate bear the onus of proving both incapability of managing affairs and incapacity in making reasonable judgments? 

MS BAGDONAVICIUS: No. There would be a reliance on medical evidence being provided to the tribunal. 

MS EASTMAN: In terms of the reliance on medical evidence, who obtains that, if the application is made by the Public Advocate? Would you commission that evidence? 

MS BAGDONAVICIUS: We would attempt to seek that evidence from treating professionals. If   at the present time, I   the Public Advocate doesn't have the power to compel people to provide that information to the Public Advocate. However, if we are unable because of a treating professional's view that it's confidential information, they are not prepared to provide it to us, but there is enough sufficient evidence from our point of view that there is significant concerns that the matter should be put before the tribunal, we would make the application, and then the tribunal can make orders to seek those medical reports and information. 

MS EASTMAN: What sort of medical evidence is required to override the presumption that a person is capable of managing their affairs or making reasonable judgments? What type of medical evidence is usually required? 

MS BAGDONAVICIUS: The tribunal   State Administrative Tribunal have a standard medical form that they refer to treating professionals to provide. On other occasions, they utilise written reports which have fuller assessments. So, it is a mix of information that may be put before the tribunal. 

MS EASTMAN: And is there an onus of proof as to what level of proof or how the presumption is overridden? 

MS BAGDONAVICIUS: That is a decision for the tribunal. 

MS EASTMAN: And is the process one that requires the person about whom the application is made to have the opportunity of presenting their own evidence in relation to their capability to manage their own affairs or make reasonable judgments? 

MS BAGDONAVICIUS: The person for whom the application is being made should be notified of the need   of the fact that there is an application before the tribunal by the tribunal. 

MS EASTMAN: That's being told there's going to be a hearing or there is going to be this issue to be resolved in the tribunal. Are people notified that they might need to bring some evidence along? Do you know that? 

MS BAGDONAVICIUS: Not   the serving of notice is about the tribunal hearing, as you say. If our office has a referral or if our office has been involved in making the application, we would be letting the person know that the application is being made. 

MS EASTMAN: What information is provided to the person if it's those circumstances that you just referred to? What information would they get? What would they be told about the process? 

MS BAGDONAVICIUS: They would be told about the nature of the hearing, the reasons why we are proceeding to the extent that that can be communicated to the person, and it really comes back to some variability of the judgment of the investigator in terms of the circumstances of the person, what they can understand, and the experience of the investigator in working with the person and explaining that information to them. 

MS EASTMAN: Are people told that they can be legally represented in the tribunal process? 

MS BAGDONAVICIUS: I'm not sure that everyone is told every time that they can be legally represented. I'm sure that most of the investigators would say that as a matter of course, but it's   legal representation hasn't been a feature of the way in which the tribunal has been established. 

MS EASTMAN: What about not a legal advocate, but an advocate? I think you have been in the room and you have heard Christine Grace's evidence from Kin Advocacy and their role. Would people be routinely told that they could access a service like Ms Grace's service? 

MS BAGDONAVICIUS: I think it comes back to a case by case basis in terms of what the circumstances are. 

MS EASTMAN: Is there any evidence, in your experience, presented to the tribunal that's beyond a medical assessment of the person in terms of capacity to manage financial affairs or make reasonable judgments? Does the tribunal routinely get evidence other than medical evidence? 

MS BAGDONAVICIUS: I'm using "medical evidence" in a very broad term, so it would be service provider reports that are also made to the tribunal. Even though   so there's a lot that's taken into account. There may be different professionals providing assessments of the person, functional assessments we been able to obtain through NDIS or other means. Other reports to other courts at times. 

MS EASTMAN: But the tilt of all of this evidence is to overcome the presumption that a person's capable. 


MS EASTMAN: So are we right in understanding that the tilt or the direction of this evidence is not to really test capability, but to identify all of perhaps the weaknesses or deficiencies for a person at that moment in time to demonstrate that they are not capable of managing their financial affairs or making reasonable judgments? 


MS EASTMAN: The nature of the evidence, isn't it? 


MS EASTMAN: So for a person going through that system, starting with the presumption of capability and being faced with a lot of medical evidence in relation to not being capable, how does that strike a fair balance in terms of power and decision making for a person who the orders might be made? How does that work in the tribunal? 

MS BAGDONAVICIUS: That is really a question for the tribunal. 

MS EASTMAN: Well, if the Public Advocate is the applicant, do you take steps to even up the power disparity in those circumstances or provide support to people? 

MS BAGDONAVICIUS: It will depend on each case and the supports around a person. If there are any other supports that are present for the person. And certainly there are times where we may try to obtain other advocacy or independent legal advice for the person but it's not on every occasion. 

MS EASTMAN: What would be the occasions in which you would take those steps to find legal   opportunity for legal advice or independent advocacy? What would be the type of occasions? 

MS BAGDONAVICIUS: I'm thinking of a case where we have a man who has got a range of psychiatric issues at great risk. Has had major issues with his local council, potentially house being demolished. Already involved in lots of other legal action. So, in that sort of case where we are looking at our role, is there   you know, it may be helpful for him to be independently represented to the extent that he can instruct a lawyer to be involved, you know, on his behalf. 

MS EASTMAN: Alright. I want to ask you some questions now about your office and the resources. I think we have touched on that. So, you've got 85 full time equivalent employees in your office. Is that right? 


MS EASTMAN: And not all of them operate with the delegated authority as the Public Advocate. So, some are investigators, is that right, and some are involved in the policy work of your office? 


MS EASTMAN: So how many in total would the   of the 85 would comprise people who have that particular responsibility as the Public Advocate acting under your delegation? 

MS BAGDONAVICIUS: When I talk about the 85, it was 85 as at 30 June. So, in terms of that establishment, we have 58 positions which are operating as guardian under my delegation. That doesn't include   and in addition to that, we have two managers, guardianship, as well as a senior policy officer who is also involved in some case work, for whom I give a personal delegation as and when required. 

MS EASTMAN: Are the staff located throughout Western Australia? 

MS BAGDONAVICIUS: No, we are a centrally based office. 

MS EASTMAN: Do the staff travel throughout the very large State of Western Australia? 

MS BAGDONAVICIUS: Yes, they do. 

MS EASTMAN: How many First Nations staff do you have in. 


MS EASTMAN: How many staff are people who identify as people with disability? 

MS BAGDONAVICIUS: That's an interesting question. Because it's not a statistic that's available. 

MS EASTMAN: You don't collect that information? 

MS BAGDONAVICIUS: It's collected by our HR area, and it's up to a person to self identify. 

MS EASTMAN: What would be the average caseload for a person holding the delegated authority from you to act as a guardian? How many would the caseload be on average? 

MS BAGDONAVICIUS: It's currently high because of the vacancy rate within our office. And so the current average, based on the number that we reported to the Commission in our submission, would be 71 across senior guardians and guardians. 

MS EASTMAN: And in terms of that 71,so one person would have to exercise the decision making power, be it plenary or limited decisions, for 71 people at any point in time? 


MS EASTMAN: Do you think that's a sustainable caseload? 

MS BAGDONAVICIUS: It is   it is a high caseload and, no, it's not sustainable. 

MS EASTMAN: What should be the caseload that you think is necessary to discharge the duties of the guardian, which is to act in accordance with the opinion of the person with respect to their best interests? 

MS BAGDONAVICIUS: The caseload ratio that has been considered by Treasury in terms of allocations to our office is at 55 per guardian on average, noting that we do have in place some team structures where we have higher numbers of people allocated where we have a monitoring team working with people who are in facilities   in particularly aged care facilities, some long term disability group home situations where their situation is relatively stable and most of the decisions relate to their treatment. So   

MS EASTMAN: Thank you. We asked you about staff training and you have set out at paragraph 71 to 82 the training. So, there is some initial training on induction. So, when somebody commences, they will undergo some training. In addition to that, there are occasional seminars and attending the AGAC conference; is that right? 


MS EASTMAN: And then in terms of looking at the subject matter of the training, am I right in making the following assumption: That there is no specific trauma informed training that's on offer? 


MS EASTMAN: There is no specific training about the Convention on Rights of Persons with Disabilities? 


MS EASTMAN: There is no specific training on how and what a restrictive practice is? 

MS BAGDONAVICIUS: That's not so. 

MS EASTMAN: What's the training in relation to restrictive practices. 

MS BAGDONAVICIUS: We have undertaken training on restrictive practices through both the induction as well as through our guardianship team meetings. It is part of the   we have a practice standard, so that is something that is utilised in discussion with guardians. 

MS EASTMAN: I couldn't see anything in the material to indicate there was any particular training on understanding power, the use of power and where there may be imbalances in terms of how power operates between a guardian and the person for whom they are making decisions. Would that be right? 

MS BAGDONAVICIUS: There is nothing specific but I would believe that that is covered in a general way through our induction. 

MS EASTMAN: There is one reference in paragraph 80(g) to Aboriginal and Torres Strait Islander cultural awareness. But that's a seminar; is that right? 

MS BAGDONAVICIUS: It's an online training which has been developed by the Public Sector Commission. 

MS EASTMAN: And in terms of First Nations, you say in the statement that: 

"OPA is at the start of a new cultural awareness journey."

That's paragraph 88. What does that mean? 

MS BAGDONAVICIUS: It means that we have   the Department has   we are part of the Department of Justice. We are part of the Department's Reconciliation Action Plan. Certainly the need to do work   work better in a way that's culturally safe with First Nations people is well embedded in that strategy. We have been working   I am on the Reconciliation Action Plan Committee. We have been working through and have a draft Aboriginal Cultural Capability Training Strategy that has been developed by an Aboriginal controlled organisation, controlled organisation. 

That strategy is its final stages and expected to be implemented in 2023. And that will be tailored to specific business areas, such as our own office as well, in terms of our training needs. It will be delivered by an Aboriginal culturally   an Aboriginal community controlled organisation. And the other part of our journey   I mean, it is part of the Reconciliation Plan. We   there is also a recognition that we need more Aboriginal Liaison Officers across the   ensuring that we have got a spread across the Department. 

MS EASTMAN: There is no Aboriginal Liaison Officers employed by OPA is there? 

MS BAGDONAVICIUS: At the present time, no. 

MS EASTMAN: Have there ever been Aboriginal Liaison Officers employed by OPA? 

MS BAGDONAVICIUS: Not as Aboriginal Liaison Officers. I   there have been guardians appointed who have been First Nations people. We have also had people participating through the Aboriginal Public Sector Commission Aboriginal Traineeship Program. 

MS EASTMAN: You have been listening to many - some evidence today about cultural safety and some of the concerns raised by advocates in relation to culturally safe practices, understanding the historic experience of First Nations people, particularly in Western Australia, understanding Stolen Generations and the need to understand respect for culture and country. Is this new program that's developing going to specifically address those issues? 

MS BAGDONAVICIUS: It will certainly go some way towards that, but we clearly have more to do within our office in this area. 

MS EASTMAN: What in particular do you think you have got more to do in your office in this area? 

MS BAGDONAVICIUS: I certainly think employing an Aboriginal Liaison Officer or more than one is going to be very important for us, moving forward. It's about the difficulties in terms of the resources constraints and how our focus has needed to be the huge demand that we have had in my whole term as Public Advocate. We have had every year increased appointments between 10 to 12, up to 15 per cent net increase to 30 June each year. 

So there has been an ongoing work done to address that caseload issue for staff within the office. And at the expense of us losing sight, I think, of some of the other supports that we have also got to put in place within the office to do things better. And that includes Aboriginal Liaison Officers. 

MS EASTMAN: Would part of this be a deep dive examination as to why Aboriginal First Nations people are disproportionately represented in the guardianship system? 

MS BAGDONAVICIUS: It could be. I   I would like to think   I mean, you're raising it today, and certainly I will give more thought to that. 

MS EASTMAN: Thank you. I want to ask about the concept of best interests. That expression appears in the legislation. And does it include, among others, encouraging people to participate in community life, to care for themselves, make their own judgments as far as possible, but also to protect the person from neglect, abuse and exploitation. 


MS EASTMAN: And in terms of what that actually means, how do you strike the balance between participation in community life, caring for themselves, making their own judgments against this strong protective flavour that comes through the legislation? How is that balance struck in applying a best interests approach? 

MS BAGDONAVICIUS: It comes back to case by case considerations. And I think it's clear that there will be some decisions that we will be very proactive with, albeit we should be, for instance, under the legislation, treatment decision making as very broad. So, if a guardian is appointed to make treatment decisions, you are technically making decisions or should be giving consent on behalf of the person for everything other than over the counter prescription medication. Albeit that   except where treating health professionals are making urgent treatment decision. 

In reality, there may be areas within the office where treatment decisions are routinely sought by various facilities such as some of the aged care facilities and through some of the diligent monitoring by the guardians. But in other situations, it will be about what   where do we really need to be making a significant treatment decision. 

MS EASTMAN: You heard the expression "dignity of risk" being used today. And we asked you about dignity of risk, and you say that that term: 

" not currently explicitly used in OPA's documented practices, as OPA's practices are based on the language of the Act, which is balancing the risk of best interest."

Does that mean there is no approach based on dignity of risk in the Western Australian scheme? 

MS BAGDONAVICIUS: I think in reality it's happening. 

MS EASTMAN: Have the staff been trained with respect to the concept of dignity of risk and how it will be applied in practice? 


MS EASTMAN: In terms of the language "will and preferences", you have heard that expression used today. The legislation in Western Australia doesn't pick up the concept of will and preferences, does it? 


MS EASTMAN: How does will and preferences sit with the concept of best interest and striking a balance between risk and personal autonomy? 

MS BAGDONAVICIUS: I think the language we are using is still in terms   mainly in terms of views and wishes of the person. And that is how that balance is struck. 

MS EASTMAN: We have heard   and, again, I don't want you to comment on the particular case, but we have heard this morning in Killara's case that she didn't like living where she was. So, her wish was to live somewhere else, and she certainly expressed a preference in relation to that. What happens in practice if a person's wishes don't coincide with what the guardian considers to be that person's best interests? How is that resolved? 

MS BAGDONAVICIUS: Again, it would be on a case by case basis and consideration of the circumstances in which that person is making that request. And what the potential options may be immediately or into the future. 

MS EASTMAN: Is it difficult for the staff who are discharging this very important function as a guardian to make best interest decisions if they are generally not hands on? And I think you have said that at paragraph 103. That their role is not to be hands on. 

MS BAGDONAVICIUS: It comes back to how we collect information. You   the Commission has earlier commented today about, I think, an observation elsewhere about you know not being case   you know, not case managers. We are not coordinators. We are legal decision makers as a guardian. And it is about gathering information in the best way we can in   and weighing that up in particular circumstances. 

MS EASTMAN: But the delegated guardians are expected to visit a person within one month of the orders being made. Is that right? 


MS EASTMAN: That doesn't always happen? 


MS EASTMAN: Thereafter, if they make that first visit in the month, is there any obligation in relation to the frequency in which any visits or personal interaction will occur? 

MS BAGDONAVICIUS: Ideally, every   as a minimum, up to a year. You know, every year, a person should receive a visit. That's obviously - 

MS EASTMAN: Once a year. 


MS EASTMAN: What's the purpose of a visit once a year? 

MS BAGDONAVICIUS: Seeing the person, talking with the person, talking with their service providers, if they are available. Seeing their situation. 

MS EASTMAN: That would allow the person to see how a person might be travelling on that particular day. It doesn't give you a clear understanding of how the person's capacity might have evolved or fluctuated or changed during the course of the year does it? 

MS BAGDONAVICIUS: No, but there will be some people where we are seeing   there is more frequent interaction. 

MS EASTMAN: And the office doesn't keep any data on the frequency of visits or the number of visits; is that right? 

MS BAGDONAVICIUS: We keep some data, as I explained in the submission, but it is limited in what we can extract in a meaningful way. 

MS EASTMAN: And you say at paragraph 153: 

"The guardians aim to gather the views and wishes by speaking directly." 

But if they are not going on a regular basis in person, then are in other ways in which you expect the communication to occur, through phone calls or relying on other people? What happens? 

MS BAGDONAVICIUS: There is a   there is certainly a contact, at times, with service providers. Service providers will contact us. Family will contact the Office of the Public Advocate. Others   treating professionals will contact the office. So, it really depends on the individual's circumstances as to how we know what's happening in relation to that person's   

MS EASTMAN: How does then   

MS BAGDONAVICIUS:   situation 

MS EASTMAN: How does your office manage conflicts of interest? So, if, for example, you are getting information from service providers, if you are getting information from family members where there may be conflict in families, what's the way in which conflicts of interest are managed? 

MS BAGDONAVICIUS: We are involved in situations where the Public Advocate is appointed because of the conflict between family members, and that is often in relation to things like contact between   having contact with a represented person, say, who is now living in a facility. We would put to   we would try to work with the family to see if, in fact, we need to put in place   if we can work informally around what the contact arrangements might be by contacting individual family members around those arrangements, and also seeing what the wishes of the person are, about that contact to the extent that we can gain those wishes from the person. 

We would also seek to, in some situations, determine that we need to put in place a formal arrangement because it clear that the animosity, or the difficulties that families have had that have led to the Public Advocate's appointment aren't easily resolvable. 

MS EASTMAN: What formal arrangements? 

MS BAGDONAVICIUS: That would be putting in place a contact plan. So, certain people can visit on a certain day and other people visit on another day. And that's agreed. And then that's reviewed periodically.

MS EASTMAN: I want to ask you now about the role of the guardian in violence, abuse and neglect or exploitation of a represented person. You've said the safeguarding is the responsibility of the service system, rather than one dedicated agency in the Department, but you have also said that when OPA becomes aware of an allegation that a represented person has experienced violence, abuse, neglect or exploitation, an inquiry is conducted in collaboration with service providers and other stakeholders having day to day access to and/or responsibility to the represented person. 

Can you assist us in terms of what the nature of those investigations would be? And I think we have asked you on how many occasions have investigations of that time   type arisen in the past year. Do you want to speak to that? 

MS BAGDONAVICIUS: I think in the first instance it's about establishing whether or not it appears to be a criminal matter which should be referred to the police, in which case the reference   the referral would be to the police rather than necessarily being the ones undertaking that investigation. And if the police   if it's not a matter where the police need to be involved, then it would be making inquiries of the circumstances and making some judgments. 

MS EASTMAN: Anything else? 

MS BAGDONAVICIUS: Well, the practice standard outlines a range of things where we need to have discussion, we need to consider how we are going to ensure the safety of the persons. We sometimes go out   I mean, work with some very complex situations where we may be going out trying to see family members with the represented person in the home, with back up support where necessary as well. Through   with other service providers. Trying to see the individual person is important in ensuring that we have heard their views on what's happening, to the extent that we can, trying to work with family where   or others in those situations so that we are putting in place some protections, some   and ways of making further assessments and responding. 

MS EASTMAN: Your statement indicates that in the year 2021/2022 that there were over 2000 new investigations carried out, and one of the key areas concerned allegations of financial abuse, particularly for older people living with disability. Is that right? 

MS BAGDONAVICIUS: That relates to matters rather than people, which has been referred for   

MS EASTMAN: Sorry, so 283 people. 


MS EASTMAN: But over 2000 new investigations; is that right? 

MS BAGDONAVICIUS: Yes, which were referrals from the tribunal in relation to matters. 

CHAIR: We are at paragraph 313, I assume?

MS EASTMAN: Yes, that's correct. So, when these investigations are undertaken, what is the caseload again within the office for the investigators to undertake these types of investigations? What can you tell us about that? 

MS BAGDONAVICIUS: Our   we are very careful in the annual report to talk about alleged financial abuse, because our role is around looking at the information. We don't necessarily   we don't substantiate the abuse. The concerns around what's happening for the person's circumstances is sufficient that it is information that's been provided to the tribunal. So, we don't   I mean, the appointment   the appointment of the Public Trustee, that is a matter, then, that in terms of those SAT applications, where they would then need to consider what further action they would take in relation to the financial abuse. 

MS EASTMAN: I know we are covering a lot of territory quickly, but I want to ask you about coming back to the duration of the guardianship orders. We also asked you how many in the previous 12 months had been revoked, and you told us it was 145. Are the circumstances of those orders being revoked because of the change of circumstances of the represented person? Or do they mostly come about because they there has been a challenge or an application for review by a family member like Anthony, for example. 

MS BAGDONAVICIUS: It's a mix. And there are   we   the Public Advocate makes a report for every review of a guardianship order, and we consider as part of that process whether or not there's another option that has emerged which   and certainly if we have identified that a more appropriate appointment by family, then we will make that recommendation for the revocation of the Public Advocate. 

MS EASTMAN: So even with the 145 revoked orders, that does not mean that that's 145 people who no longer have a guardianship order. Some may not, but others may have a replacement. 

MS BAGDONAVICIUS: That's right. 

MS EASTMAN: A family member or another person to provide that function. Is that right? 


MS EASTMAN: Is there anything in the system that requires the Public Advocate to assess fluctuating capacity and to form a view that a person's skills and capacity has changed so that they can make decisions for themselves now? Do you have that function at all? 

MS BAGDONAVICIUS: It's not a function; it's a judgment call. And I've certainly become   I was involved myself directly in a case this year where somebody's capacity was deemed to have been   you know, their ability to make decisions for themselves was deemed that they did have the capacity. We had the evidence coming back to us from the same treating team that demonstrated the person's capacity had   had, you know, it was no longer an issue of concern to them. And so in an application before tribunal, it was made by another party and that   in that sort of case, clearly, there was evidence that had come to light that showed the person did have capacity and, therefore, the orders could be revoked. 

MS EASTMAN: So you have said also that it's not part of your office's function to support people who are represented to build skills or to assist them to develop capacity. And I want to ask you in that context whether you have seen any changes with the NDIS now in Western Australia. We heard Christine Grace say that her observation is that the arrival of the NDIS has increased the numbers of applications. 

But if we work on the basis that the NDIS is about choice and control and about supporting people, we would hope, in a way, to develop that independence and autonomy. Do you see anything in the arrival of the NDIS with the numbers of new applications for guardianship? And is there apparent conflict that what the NDIS seeks to achieve is actually creating the opportunity for more guardianship applications to be made and applied? 

MS BAGDONAVICIUS: There is certainly a tension there and I think it is   while   and if I can just say this, in terms of NDIS planning, there is now more capacity for people to have some funding to help them actually factor into their NDIS plans to help them build capacity. And how that capacity is built will determine   will be determined by what sorts of things the person wants to do. So, that's happening at an individual level. 

But in terms of a systemic level, I think we are still on the wave of transition with the NDIS impact, impacting on Western Australia. We're a full transition to the New Bilateral Scheme negotiated over the coming year. But we have certainly seen an increase in applications coming forward. I think it's two fold, that there sometimes are concerns about people who have had very long term psycho social problems who have not been able to access supports sufficiently in the past and that they do not have family support and need additional support. 

There are other people where it is becoming   it is complex, or you have ageing parents, and the complexity of the NDIS processes is hard for some to navigate. And that is inevitably resulting in, I believe, work coming into our office for appointment as guardian. Hopefully, in the longer term, we may be able to find lesser restrictive options but it's certainly   the NDIS has certainly impacted in terms of new appointments of the Public Advocate as we demonstrated in the work we did last year. 

MS EASTMAN: If we take this assumption that the NDIS has the objective of supporting people with disability to become independent, including having autonomy in decision making, does it follow that existing legal systems, like guardianship and administration laws, also need to shift to reflect the models of supported decision making and models that enhance a person's independence? 

MS BAGDONAVICIUS: I would say there's always going to be a need for a substitute decision making model in that paradigm. And certainly there may be more that can be done, and I'm sure there is more that can be done around supported decision making. But I think there's   we have seen the work happen in Victoria with the development and legislative reform that has embedded supported decision making. What we don't have is any evaluation of the implementation of that and how that's working in practice. 

I would be keen that any supported decision making framework that sits alongside substitute decision making framework again doesn't become overly bureaucratic and complex, because otherwise we are creating a lot of systems around people, and at the end of the day, we need to   I mean, we want to maximise people's autonomy, but we also want to maximise their opportunity to use the funds in an appropriate way to support them best. 

MS EASTMAN: There has been one review of the Western Australian Guardianship and Administration Act, and that, I think, was published in November 2015. Is that right? 

MS BAGDONAVICIUS: It was tabled in the Parliament on 2 December 2015. 

MS EASTMAN: And there were 86 recommendations in relation to the Western Australian Act. Is that right? 


MS EASTMAN: And in terms of any changes that have occurred in Western Australia   and I accept your statutory role and you may not be able to comment on policy changes   do you think that there are aspects of the Western Australian Act that are ripe for reform? 

MS BAGDONAVICIUS: Well, I would agree that there is certainly a large number of the recommendations in the statutory review in 2015 that would still be advantageous for reform in Western Australia. The one   the area that has proceeded to legislative reform has been in relation to medical research. There is also a need to embed in our legislation the rights of people in relation to the UN Convention. So, that is something we don't have currently in our legislation. 

MS EASTMAN: Western Australia doesn't have a Bill of Rights or a Charter of Rights. 


MS EASTMAN: And Western Australia doesn't have a mechanism at present for taking the rights in the Convention on the Rights of Persons with Disability into Western Australian law. Is it your view that the suite of rights in the CRPD need to find their way into Western Australian laws like the Guardianship and Administration Act? 


MS EASTMAN: And if that happened   and we are in the hypotheticals now   what material or practical difference do you think that that would make to the way in which guardianship and administration operates in Western Australia? 

MS BAGDONAVICIUS: I think that's a very large call. 

MS EASTMAN: That's my last, question by the way. 

MS BAGDONAVICIUS: It would certainly strengthen our rights approach. I think we are strong in the sense of protecting people, but our legislation has   beyond the statutory review, we have   and the introduction of enduring powers of guardianship and advanced health directives in 2010, we haven't had significant reform in terms of the Guardianship and Administration Act. So, there is obviously, with the work that's happening before the Commission, I think that's going to certainly strengthen the need for consideration as to what reform is required to our existing legislation. 

MS EASTMAN: Alright. I misled you. It's not my last question. In that respect, have you followed the work of this Royal Commission in relation to the roundtables that the Commission held in   at the end of May and beginning of June? Are you aware of the Royal Commission's work? 


MS EASTMAN: And the other question I want to come back just in terms of staffing, I think I asked you about the numbers of First Nations staff and also staff who identify as people with disability. Do you know if the Western Australian government in the public sector has any target for the employment of people with disability, particularly in agencies where the rights of people with disability are very much part of the duties and functions of the relevant agency? 

MS BAGDONAVICIUS: Yes, the Public Sector Commission has identified targets. I think   from memory, I think it's in the order of at least 6 per cent for people of First Nations, and for people with disability, I think it is in the other of around 3 per cent. I'm not sure. 

MS EASTMAN: And would those targets apply for your office as well? 

MS BAGDONAVICIUS: As part of the Department of Justice, yes. 

MS EASTMAN: Alright. Thank you very much. Commissioners. 

CHAIR: Thank you. I will invite my colleagues to ask questions they may have. Commissioner Ryan? 

COMMISSIONER RYAN: Thank you. I was just reviewing the supplementary statement that have you provided with regard to Killara's case. Can I confirm with you there appears to have been only three meetings between the guardian looking after Killara and Killara herself from the period of time of August 2015 through until she exited guardianship in 2022. Is that correct? 

MS BAGDONAVICIUS: Can you refer me to the paragraph you are looking at, please? 

COMMISSIONER RYAN: I have basically gone through the whole document. I elucidated the number of times in which you said there was a meeting. There was apparently a meeting between the guardian, Anthony and Killara - 

CHAIR: I think it's at paragraph 73.

COMMISSIONER RYAN: Yes. There was a meeting between the three. Then there was a subsequent tour of the facility. So, I presume that counts a meeting. 

CHAIR: Sorry, just let's get the relevant spot. 

MS BAGDONAVICIUS: No, I would just need to clarify that. The 6 August 2015 meeting was with Killara and Anthony at Anthony's home after the appointment of the guardian. 


MS BAGDONAVICIUS: And then 25 July 2017 was when another guardian from the Office of the Public Advocate visited Killara at the facility. And then there was a telephone contact on 11 January. A telephone meeting. But there was also telephone contact through NDIS planning meetings as well where Killara was   the guardian was on the line. But, yes, there is   face to face, there were two. Two occasions. 

COMMISSIONER RYAN: Only two or three in seven years. Do you think that is a sufficient service for someone like Killara - 


COMMISSIONER RYAN:   whose medical   was quite medically complex. I just wanted to also compare what took place to make the determination about Killara's accommodation in 2015  and the practice guide. The practice guide indicates that at 4.3: 

"A delegated guardian will only consent to non domestic style accommodation when all other options for providing appropriate support have been exhausted.” 

Would you agree that there was only about a month of investigation of finding accommodation options for Killara, and the investigation appeared to consist of a meeting with what you describe as service providers. This is around paragraph 60 of your statement. 

MS BAGDONAVICIUS: Paragraph which? 

COMMISSIONER RYAN: I think it's paragraph 60 of your statement. 


COMMISSIONER RYAN: No, sorry, 64. In October   it starts October 2020. There's a reference in your statement to a meeting with service providers. Here it is, 56: 

"While Killara was in respite care, there was discussion about Killara living elsewhere from Anthony's home.” 

And there's a reference to a meeting with service providers. And then: 

"On September 7, 2015 the Welfare Officer accompanied Killara and Anthony on a tour of the facility." 

That doesn't appear to have involved the guardian by the sounds of things. So, the guardian never saw this facility. 

CHAIR: Are we moving towards a question? 

COMMISSIONER RYAN: That's 57. Does that look like every option was exhausted for the   

MS BAGDONAVICIUS: To the extent there were options. Limited options were available, as I understand it. There was Killara   

COMMISSIONER RYAN: There was the option of living in Anthony's home. 

MS BAGDONAVICIUS: That was no longer possible, as I understand it. She had gone into   Killara had moved into respite, and then there was a time period   there was limited options. There was   in the area in which Killara lived, there were three options and three   and this was seen as the option   it had a place, and that was where she could go. It was a psychiatric hostel. 

COMMISSIONER RYAN: I can see that there was discussion about Anthony wanting to find some other place, but I think he said it would be difficult without continuing respite. I don't think there's any indication that he wasn't willing for his mum to live at his place, provided he was given additional support to do that. 

MS BAGDONAVICIUS: My impression of my file review doesn't agree   you know, I don't concur with that, as I understand too that Killara and Anthony both visited the facility as well. 

COMMISSIONER RYAN: Was   as required in the practice guide, was there a transition plan prepared for Killara to transition into the premises and did it include details of her sharing a room with someone? 

MS BAGDONAVICIUS: Sharing the room was what the facility was able to offer at that time. That was   as I understand   because I   there was   the transition plan was moving into the facility. It wasn't an overly detailed transition. We had Mental Health Services involved. The Aboriginal Specialist Unit from [Redacted] Hospital was involved with helping with that transition. 

COMMISSIONER RYAN: It says in your practice guide: 

"Transition plans should be supplied from supporting agencies involved with the represented person. Information should include steps taken by the services to ensure appropriate planning has occurred to enable feasible and smooth transition for the represented person into his or her new accommodation, for example, has the person visited the property...” 

That appears to have been the case:

"...met with other residents...” 

There doesn't seem to be any detail about that: 

"...if so on how many occasions...” 

So, it suggests there might be more than one: 

"...identification of potential risks...” 

CHAIR: Commissioner Ryan, I think   sorry, if you have got a question, can we please have it, but let's not read   

COMMISSIONER RYAN: Did the transition plan include details of identification potential risks, meeting with other residents? 

CHAIR: I'm sorry, I will have to ask you to stop unless you have got a question. 


MS BAGDONAVICIUS: The transition plan was looking at the facility, talking to the people at the facility in conjunction with the welfare officer from the Mental Health Services who accompanied Killara and Anthony with that visit, and then a decision was made. And there were limited options available. 

COMMISSIONER RYAN: Do you agree with me that a transition plan suggests something in writing requested from the provider. That's what the practice statement says. Did you request one from the provider? 

MS BAGDONAVICIUS: There isn't a transition plan on the file. 

COMMISSIONER RYAN: So there probably wasn't one requested? 


COMMISSIONER RYAN: So that part of the transition   that part of the practice statement wasn't met either. And yet there was no further meeting between the guardian and Killara at her home to see how it was going for seven years. Do you agree with me that there was a further periodic review of Killara's accommodation and guardianship arrangements on 28 July? Did you hear earlier the description of that meeting from Anthony where he said it only lasted a few minutes? 

MS BAGDONAVICIUS: I heard that, but   and I   you know, I'm not sure how long it lasted, from our records. 

COMMISSIONER RYAN: Would it be normal to have reviewed your authority to determine her accommodation at that time? 

MS BAGDONAVICIUS: That would be an unusually   that would be a short period. That   normally, they certainly schedule hearings for reviews for usually an hour. 

COMMISSIONER RYAN: Wouldn't you have to justify why that should continue to the tribunal, given that, at the time, there were numerous requests from both Killara and Anthony for Killara to move? 

MS BAGDONAVICIUS: The focus of the tribunal hearing was on what authorities, if any, did   you know, was there a need for in terms of making decisions on Killara's behalf. 

CHAIR: Sorry, I think one more question, Commissioner, and then we will move on. 

COMMISSIONER RYAN: Do you think that the Public Guardian around 2020 had sufficient information from Killara and Anthony that would have merited a visit to her accommodation, given that she had made numerous complaints about wanting to move. 

MS BAGDONAVICIUS: Ideally, that visit should have occurred, especially before a new   an upcoming tribunal hearing. 

COMMISSIONER RYAN: Do you recall   

CHAIR: Sorry. I think   

COMMISSIONER RYAN: I just want one more, Mr Chair. Do you recall   there is a conversation   Anthony reported that during her periodic review, Killara was actually speaking to the tribunal from her home, and with her was a support worker from the facility, and he indicated that that might have   she felt intimidated, there was a massive conflict of interest, "My mother spoke to me after she had seen   and indicated that she didn't want to live there but she had said otherwise.” Your record suggests that that is one of the occasions in which Killara said she wanted to live there. Do you agree something should have been done about that massive conflict of interest? 

MS BAGDONAVICIUS: It's very difficult if   and that's really a matter for the tribunal in terms of how the tribunal's conducting the hearing. 


CHAIR: Thank you. Commissioner McEwin. 

COMMISSIONER McEWIN: Thank you. Thank you for your evidence. In relation to Ms Eastman's question about the employment of disabled people in your agency, is there a requirement to report on the number of disabled people you have employed? 

MS BAGDONAVICIUS: There is a requirement on the Department's report through the Human Resources section to the Public Sector Commission. So, we are part of the Department of Justice reports. 

COMMISSIONER McEWIN: So in the context of meeting, say, for example, the targets that you mentioned earlier in relation to Ms Eastman's questions about these targets of numbers of people with disabilities. 

MS BAGDONAVICIUS: Yes. And I have to say, that   that was drawing it from the back of my mind in terms of what that target is. 

COMMISSIONER McEWIN: Okay. But what you said in response to Ms Eastman was that you couldn't give a number of disabled people. So, how do you report   what's the nature of the reporting to the Department? 

MS BAGDONAVICIUS: It's captured through the Human Resources information held around personal information that people have put into the HR   Human Resources system. I don't capture that information directly. 

COMMISSIONER McEWIN: Okay. So, then how can you report on, say, meeting targets that you mentioned earlier, the 3 per cent? 

MS BAGDONAVICIUS: I don't. It's given as a report through the Department of Justice, which take as a cumulative report from the Department of   you know, a combined report for the Department of Justice. 

COMMISSIONER McEWIN: Okay. My final question on that point is, do you not think, given the nature of your agency and providing support or services to disabled people, that you would want a great number of disabled employees? 

MS BAGDONAVICIUS: I agree that it would be great to have people with lived experience of disability employed in our office. I'm also very conscious that many of our staff are people   family members of people who have lived   lived experience of disability. And I do    am aware that some staff have disability that hasn't been declared, but that is a personal choice. 

COMMISSIONER McEWIN: Thank you. My final question is in relation to Ms Eastman's question about the NDIS and the rise in applications by service providers and others about guardianship. And you said if, for example, the NDIS is too complex for a particular person, an application for guardianship is appropriate. Would you not   and I put it to you, would it not be preferable and a greater use of resources to   in alignment with human rights is to develop resources and supports and implement supported decision making models for that person? 

MS BAGDONAVICIUS: It could be. I have   I mean, at this point of time, I haven't had the resources to consider how that could work as an alternative. And I think there is also an onus in terms of the NDIA's role in looking at how they might support people looking at alternative options such as nominee provisions as an alternative to making guardianship applications. 

COMMISSIONER McEWIN: Okay. And if the Chair can bear with me, I do have a final question on that. Many disabled persons might find other government schemes complex, Centrelink or others. So, wouldn't the ultimate aim be to develop supported decision models that work so that anyone can understand   this is not just about the NDIS. It's about anything that people should be able to understand. Do you not agree with that  proposition, that a supported decision making model would be preferable? 

MS BAGDONAVICIUS: Well, it would be advantageous to have a suite of options for people. 

COMMISSIONER McEWIN: Alright. Thank you. 

CHAIR: At paragraph 176 of your first statement under the heading ‘What are the Key Barriers Preventing Represented Persons from Having their Guardianship Orders Revoked’, you say due to the nature of the NDIS, a substitute decision maker is likely to be required on an ongoing basis to consent to services, and that creates a barrier to revocation. I'm not quite sure I understand that. Could you explain that, please. Paragraph 176. 

MS BAGDONAVICIUS: I'm sorry, I was on the wrong submission. The observation I would make here is that with the orders, the authority is given to the Public Advocate by the tribunal. Historically, the highest number of orders were in relation to treatment decisions. Now, the highest number of orders and functions which I'm appointed relate to making services decisions. And that appears to be directly related to the NDIS and the need for giving consent on behalf of a represented person to NDIS. 

CHAIR: Consent to what? 

MS BAGDONAVICIUS: Consent to the services. Consent to the NDIS plan. Consent to the service agreements. Giving, you know   signing on behalf of the represented person the various and multiple service agreements that might be needed around for some people. 

CHAIR: So a guardian is required in order to provide consent on behalf of the represented person to the multitude of agreements that are associated with that person's participation in the NDIS. Is that the proposition? 

MS BAGDONAVICIUS: Yes. I mean, obviously, through   we may be able to   through NDIS and capacity building, things may change for the person. It's something that would be reviewed. But there's certainly a number of people coming through, and if we cannot, through our involvement, locate other suitable people to become the guardian or the nominee, then it is likely that we will continue where they have significant intellectual issues   disability. 

CHAIR: At paragraph 173 and 174, you refer to the NDIS rules that require legal consent from an NDIS participant or a substitute decision maker for the use of restrictive practices. Are you conveying there that this is a reason for the appointment of a guardian, so that consent can be obtained for restrictive practices? 

MS BAGDONAVICIUS: Yes. It has been the feature since the introduction of restrictive practices through the NDIS. And the outcome of the - 

CHAIR: What's the practical operation? Somebody makes an application for the appointment of a guardian in order to authorise restrictive practices? Who makes that application? 

MS BAGDONAVICIUS: It can be family members. Family members are being appointed as well to make restrictive practices. It is the model of consent for restrictive practices that is currently operating within the WA system, and so the consent of somebody, if somebody is deemed not to be able to give that consent themselves, then they   the application is made to the tribunal. So, it will either be the appointment of a family member, the appointment of a Public Advocate around giving that consent in line with what the NDIS rules are. 

CHAIR: But who makes the initial assumption that restrictive practices are required? 

MS BAGDONAVICIUS: Usually, it's a service provider. 

CHAIR: A service provider. 

MS BAGDONAVICIUS: Yes. Or family member because of   there had been discussions with them by the service provider. It's about the service providers also needing to meet their obligations in terms of their regulatory practice with the NDIS conditions. 

CHAIR: Yes, that assumes a restrictive practice has been utilised. 

MS BAGDONAVICIUS: That's right, yes. 

CHAIR: Alright, thank you. Thank you very much for your evidence today. We appreciate your assistance. There's a lot of material covered in your three statements. Thank you very much. 


MS EASTMAN: Commissioner, the final thing is just the tender of the documents for the Western Australian Public Advocate. You have a bundle of documents there. Could they be marked Exhibits 30.008, through to 30.023. And we will circulate a list that sets out the description of the documents referable to the relevant exhibit number. 

CHAIR: Yes, thank you. Those documents can be admitted into evidence with those exhibit numbers. Thank you very much. 


CHAIR: Does that conclude our proceedings for today?

MS EASTMAN: Yes, it is. And today has been a long day. 

CHAIR: Not quite as long as anticipated. 

MS EASTMAN: We will start at 10 o'clock tomorrow. 

CHAIR: We will adjourn until 10 am tomorrow. Thank you.