Public hearing 30 - Guardianship, substituted and supported decision-making - Day 3
Video transcript
CHAIR: Good morning everyone and a good morning to everyone in the hearing room in Homebush and to everyone who may be following these proceedings on the live stream. This is the third day of public hearing 30 of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. The subject matter of this hearing is guardianship substituted and supported decision making. We commence with an Acknowledgment of Country.
We wish to acknowledge the traditional custodians of the land on which the hearing at Homebush is taking place, the Wangal people. We pay our respects to their Elders, past, present and emerging. I'm joining the hearing from the land of the Gadigal people of the Eora Nation. We also pay our respects to their Elders, past, present and emerging. We acknowledge all First Nations people who may be giving evidence at this hearing as well as First Nations people who are following the hearing in the hearing room or via the webcast. Yes, Ms Eastman.
MS EASTMAN: Good morning, Commissioners, and good morning everyone following the Royal Commission proceedings by video or by - here in the room. We are glad to see you all back today. So thank you for joining us. Commissioners, can I just outline what to expect today: so we will start this morning with our first witness, Uli Cartwright, and then after Uli we will take morning tea and then we will have our second witness, John O'Donnell.
We would describe both these young men as witnesses with lived experience and they're going to talk to you about their experience in Victoria in relation to having financial administration orders in relation to their lives. Then after Uli and John have given their evidence, you will have the opportunity to hear from Naomi Anderson, and it will be a warm welcome for Naomi to return to the Royal Commission, and Naomi, who is here and representing Mr Cartwright this morning, will talk to us about some of the broader and systemic issues that she has encountered in her role at the Villamanta Legal Centre.
Then after lunch we will then turn to the State Trustee and to Dr Colleen Pearce, the Public Advocate, and that will conclude our day today. Again, it will be a long day and I hope that we will be able to conclude by around 4.30 this afternoon, all being well.
So, Commissioners, having given that introduction, can I very warmly welcome Mr Cartwright back to the Royal Commission. Last time we saw you were Mr Caplan and you appeared as part of a panel of Valid representatives talking about the COVID vaccine rollout in Public hearing 12. So a warm welcome and I think you are going to take an oath; is that right?
MR CARTWRIGHT: Yes.
CHAIR: Mr Cartwright, thank you very much for coming to the Royal Commission today to give evidence and thank you very much for the statement which you have provided and which we have all read. I'm sure you are aware that Commissioner McEwin and Commissioner Ryan are in the Homebush hearing room. I am in the Sydney hearing room and no doubt you can see me on the screen to the extent that you want to have a look. I will now ask you to take the oath and if you would follow the instructions of the associate, who is to your right, the oath will be administered to you. Thank you.
MR CARTWRIGHT: Thank you, Chair.
ASSOCIATE: I will read you the oath. At the end, please say yes or I do. Do you swear by Almighty God that the evidence which you shall give will be the truth, whole truth and nothing but the truth?
MR CARTWRIGHT: I do.
<ULI CARTWRIGHT, SWORN
CHAIR: Mr Cartwright, thank you very much. I will now ask Ms Eastman to ask you some questions.
<EXAMINATION BY MS EASTMAN SC
MS EASTMAN: Just to confirm, you are Uli Cartwright?
MR CARTWRIGHT: That's correct.
MS EASTMAN: And you have prepared a statement for the Royal Commission, and it was made on 27 October 2022?
MR CARTWRIGHT: That's correct.
MS EASTMAN: And you have got a copy with you?
MR CARTWRIGHT: Yes.
MS EASTMAN: And what you have said in the statement is true; is that right?
MR CARTWRIGHT: Yes.
MS EASTMAN: Can I ask you some questions arising from your statement?
MR CARTWRIGHT: Sure.
MS EASTMAN: You're now 27?
MR CARTWRIGHT: That is correct.
MS EASTMAN: And you still live in Melbourne?
MR CARTWRIGHT: Yes.
MS EASTMAN: And you live with a number of disabilities; is that right?
MR CARTWRIGHT: Not anymore yes, I live with a number of disabilities.
MS EASTMAN: Okay. So what would you like to tell us about living with disability?
MR CARTWRIGHT: So I have a lung condition. I also have physical medical conditions. I was born three weeks early and spent the first three years of my life in hospital.
MS EASTMAN: What the first three years of your life?
MR CARTWRIGHT: Yes, consecutively. Spent about nine months to a year in neonatal ICU and then the rest on a respiratory ward. It got to the point where I was stable enough to go home and I was more prone to probably die from the bugs that are in the hospital than from my own, you know, health, which is kind of ironic. But I went home a week before I was three to a foster family.
MS EASTMAN: So just can I jump in there. In terms of when you said when you went home, you weren't able to go back and live with your mum?
MR CARTWRIGHT: No. So my biological mum was intellectually challenged, and she was trained to try to look after me and she just couldn't do it safely. So they I went through the foster care system. Back then was Euroa and my foster mum, my mum, I call her because that's who she is to me, trained for six months and took me home a week before my third birthday.
MS EASTMAN: And you have described your foster mum as the most important person in your life.
MR CARTWRIGHT: Yes.
MS EASTMAN: You call her Mum because that's who she is to you; is that right?
MR CARTWRIGHT: Yes.
MS EASTMAN: And you say if it wasn't for your foster mum, "I don't think I would be here now."
MR CARTWRIGHT: No. It takes a lot of I didn't appreciate it at the time, obviously, because I was young and wanting to do what I wanted to do as a teenager, but it takes a lot of work, time and effort and sleepless hours. She has sacrificed more than just her years. Yes.
MS EASTMAN: When you were growing up as a kid, you had a lot of chronic health conditions.
MR CARTWRIGHT: Yes.
MS EASTMAN: So you spent quite a lot of your time in hospital; is that right?
MR CARTWRIGHT: Yes, that's correct.
MS EASTMAN: And that had an impact on going to school?
MR CARTWRIGHT: Yeah. I think when I was about 12, 11 or 12 I spent six months of that year of 365 days in hospital. So I repeated I think it was like year 5 just because I didn't get enough schooling. It wasn't great. I was obviously preoccupied from trying to stay healthy and, you know, having my feeds because I don't have anything orally. So school wasn't a priority so to speak.
MS EASTMAN: But you did complete one semester of year 12; is that right?
MR CARTWRIGHT: Yes . I don't know how I got there. But, yes, yes, I did.
MS EASTMAN: And you're proud of that?
MR CARTWRIGHT: I'm definitely proud of that.
MS EASTMAN: In terms of having that break from school and not having the attention on school, it means you have sort of had to learn to become independent and learn things like decision making, just from your experience of life; is that right?
MR CARTWRIGHT: Well, it's kind of interesting because I was a child and didn't make, you know, much decisions and I didn't, you know, learn much in school but at 16 or 17, because I had because my foster mum never had the opportunity to adopt me, because my dad wouldn't relinquish, you know, custody, I was making my own, like, medical decisions at 16. So it was difficult to get approval or consent for operations. So, yeah, it was interesting. My decision making was built off I guess, necessity. Yeah.
MS EASTMAN: When you were a kid with chronic health conditions and spending a lot of time in hospital -
MR CARTWRIGHT: Yes.
MS EASTMAN: you spend a lot of time with adults?
MR CARTWRIGHT: Yes.
MS EASTMAN: So you are listening to how adults talk?
MR CARTWRIGHT: Yes.
MS EASTMAN: You from learning the language of medical things?
MR CARTWRIGHT: Yes.
MS EASTMAN: You are watching and observing how doctors and nurses make decisions and talk to your mum and you hear all of that, don't you?
MR CARTWRIGHT: Yeah.
MS EASTMAN: And I think we have detected that you are a keen observer of human nature -
MR CARTWRIGHT: Yes. I like I like nuances. I like the detail. I get bogged down in the detail sometimes but, yes, I I think people like myself with chronic illness or disability we have been through so much and we've had so many people talk around us and say things good and bad. We just know I tell all my support workers that I employ now, be yourself because if you are not I'm going to be able to notice if there is something wrong. Yeah.
MS EASTMAN: And you're used to a life of everything being written down about you and I think I have heard you say that there's a saying in disability, that if it's not written down it hasn't happened.
MR CARTWRIGHT: Yes. I hope the people that are support workers that are watching this laugh but, yes, everything gets written down.
MS EASTMAN: Because one of the topics know the Royal Commission is talking about this week is about decision making.
MR CARTWRIGHT: Yes.
MS EASTMAN: And decision making is taken away. But also how you build the skills about decision making and how you have support to make decisions if there are tricky decisions that people need to do in their life. So I want to ask you about a big decision that you made when were you 16.
MR CARTWRIGHT: Yes.
MS EASTMAN: So when you were 16 you started testing boundaries and challenging a lot of what you had learnt in life.
MR CARTWRIGHT: Yes.
MS EASTMAN: So you decided at 16 to move out of the family home.
MR CARTWRIGHT: Yes.
MS EASTMAN: And you decided that you wanted to move into a different place to live.
MR CARTWRIGHT: Yes.
MS EASTMAN: What can you tell the Royal Commission about that time? Can you take us back to being a 16 year old teenager testing the boundaries? But how did you make those decisions to leave?
MR CARTWRIGHT: I think I was just a typical 16 year old that didn't want to I thought I knew better and, in hindsight, I'm probably going to be pretty fair on myself, it probably wasn't the right time to leave. It was a steep learning curve. But I also feel like that if I hadn't have done it I wouldn't be here sitting probably in front of you today.
MS EASTMAN: Part of, I think, adolescence, isn't it, being 16 and learning to become an adult, is about testing boundaries and taking risks, isn't it?
MR CARTWRIGHT: Yes. Dignity of risk, yes. I know all too well about that.
MS EASTMAN: So tell us about dignity of risk and I suppose I'm pulling you not in your 27 year old self now but taking you back a little bit to the teenage times and what sort of risk means. Risk doesn't mean, "I think I might go for a really difficult and dangerous bungee jump today and I have exercised dignity of risk.”
MR CARTWRIGHT: Yes.
MS EASTMAN: It could. But in a like day-to-day life as a young person of
MR CARTWRIGHT: Not taking my meds. Not getting enough sleep. Because obviously you needed enough sleep, you know, for me to feel awake and alert. I don't know. Anything. It could be the mundane things.
MS EASTMAN: Just day to day choices about what you wanted to do on the day or who you wanted to hang out with?
MR CARTWRIGHT: The only thing that's popping in my head is if anyone else chose to do what I did, it wouldn't be a problem. But, yeah, I'm trying to reflect back to 16 but it's hard because I have changed so much. Like I never at the time I thought that life was simple, and life was good, but I think the problem was everyone was doing everything for me. So I didn't of course life was simple, and life was good because I my life wasn't challenged in any way, shape or form.
MS EASTMAN: So you moved into a group home around 2013 and you can't exactly remember when.
MR CARTWRIGHT: Yes.
MS EASTMAN: But you were about 18 at the time.
MR CARTWRIGHT: Yes. I know I was still at school for -
MS EASTMAN: So you are still trying to finish that year 12 semester?
MR CARTWRIGHT: Yeah.
MS EASTMAN: Okay.
MR CARTWRIGHT: I was traumatised. That's why I remember it, yes.
MS EASTMAN: And you decided that you were going to move out. So you end up sharing a unit -
MR CARTWRIGHT: Yes.
MS EASTMAN: with a lady who was about 40 years older than you and I think you say even though that was a big age difference it worked out okay most of the time. So what can you tell us about, again, as an 18 year old, moving in living with somebody who you didn’t know before, who’s a little bit older than you, did you have a choice about who you would live with?
MR CARTWRIGHT: No. Not at all. I went from respite house to respite house for about six months and after – because I don’t live under the service provider anymore I looked at the files that was originally, you know, came in and they weren’t – they were – they were made to look better than what my actual situation was because they were struggling to find me a place. And, no, I understand – I don’t know the process completely but there is like a selection criterion and I – my case manager at the time, because it was before the NDIS, I think it was, just did everything for me and it was just – it is what it is. Because I was going to school, just a suburb over, that was the only place that was close to my school because they tried to give me consistency.
MS EASTMAN: Okay. And at that time, because you were under 21, you didn’t get a full disability support pension.
MR CARTWRIGHT: No.
MS EASTMAN: And even though you weren’t receiving the full DSP, you were determined to pay your own rent and contribute to the bills; is that right?
MR CARTWRIGHT: Yes.
MS EASTMAN: And when you moved into the group home you had to have a residential agreement with your service provider?
MR CARTWRIGHT: Yes, yes.
MS EASTMAN: What is a residential agreement and what did you know about signing things like that?
MR CARTWRIGHT: It’s like a normal – like when you go to a real estate agent, I think it’s pretty much the equivalent. It’s – it’s, you know, respect and responsibilities in both ends, what you are going to pay, what you can contribute, what the contribution, you know, includes, my transport, you know. Food. Stuff like that.
MS EASTMAN: You didn’t need a lawyer to help you sign a residential agreement, did you?
MR CARTWRIGHT: No.
MS EASTMAN: But you felt that you could make a decision to go, “Yeah, I’m happy to sign up for that agreement.”
MR CARTWRIGHT: Yes. But also I think I would add to that there wasn’t much choice. But whenever you get given these things it’s not like you can negotiate even if there was a lawyer.
MS EASTMAN: And you knew that even sort of living independently that you would have to make some contribution to the meals and expenses?
MR CARTWRIGHT: Yes.
MS EASTMAN: And you weren’t hiding away from that. You wanted to take that on?
MR CARTWRIGHT: No.
MS EASTMAN: That was part of –
MR CARTWRIGHT: It was better than being, like, homeless or going back home. So it’s a necessity whether I liked it or not. Probably at that age I didn’t want to but who – who does?
MS EASTMAN: Now one thing for you is that weekly contribution to groceries didn’t mean that you had to pay for food.
MR CARTWRIGHT: Yes.
MS EASTMAN: And I am going to ask you some questions about a documentary that you have made but I think you say pretty clearly that, in terms of you, you’ve had exactly the same thing for breakfast, lunch and dinner, at that time, I think for 24 years; is that the case?
MR CARTWRIGHT: I still that statement is still correct.
MS EASTMAN: Okay. So for you it's a routine to your life?
MR CARTWRIGHT: Yes.
MS EASTMAN: And when you use the peg feeding, and how do you do that, you've got a routine?
MR CARTWRIGHT: Yes.
MS EASTMAN: That means what you might contribute to a house in terms of groceries and things like that are going to be a little bit different; is that right?
MR CARTWRIGHT: That's correct.
MS EASTMAN: Okay. So you were in this arrangement for a period of time and then I want to get to December 2015, okay. So do you remember that time?
MR CARTWRIGHT: Not regarding to my statement, no. Is that when I what number are we up to?
MS EASTMAN: I'm up to 12. So in 2015 there was an application made to VCAT, the Victorian Civil and Administrative Tribunal, it was made by a support worker whose role you understood to be managing the day-to-day operations of your accommodation. So the house
MR CARTWRIGHT: Yes.
MS EASTMAN: And to this day you do not know why the application was made; is that right?
MR CARTWRIGHT: That's correct. And that person didn't, to this day, hasn't told me.
MS EASTMAN: And to this day you were not consulted about why or whether the application was necessary?
MR CARTWRIGHT: That's correct.
MS EASTMAN: And you don't think there was any problems with your finances, rent and bills, because they were all paid?
MR CARTWRIGHT: That's correct.
MS EASTMAN: But what you do remember is, within the group home, that you could remember people frequently discussing your spending decisions?
MR CARTWRIGHT: Yes.
MS EASTMAN: You were a young person and so the things you wanted to spend your money on might not be the same things that older people might want to spend their money on at the time?
MR CARTWRIGHT: Yes, that's correct.
MS EASTMAN: And can you tell us what do you remember about your spending habits within the DSP and the limits that you had on your finances?
MR CARTWRIGHT: I don't I don't know about other 16, 17 year olds, but I spent a lot of money on games which is probably not that bad compared to some things you can spend your money on. My rent was paid, I didn't pay my chemist bill frequently. So it was, you know, high, but I paid it when I absolutely needed to. I don't know. What do 16, 17 year olds do these days? Buy games, DVDs, TV shows that cost, like $140 that you are going to watch once and probably never watch again.
MS EASTMAN: So when you were around this time and you were spending things around the games and other things, did the chatter in the house about your spending decisions lead to the service provider saying, "You know, Uli, we need to sit down and do a budget or work out spending?” Did anyone talk to you about that?
MR CARTWRIGHT: They probably did. But at the time, when someone hears, "Let's do a budget", it's well that's the end task. Like why do I want to sit down and talk about what I can't spend? Like it would be better if they said, "Let's do a budget because this", or, "This is how you do it" or, you know, "If you budget and save you can get this expensive item", or something. It was just, "We need to do a budget because, you know, your bills aren't paid.” Well, I had been hearing that for months, day in, day out.
MS EASTMAN: So you think that this is the reason why the support worker made the application to VCAT to get what is called administration orders; is that right?
MR CARTWRIGHT: Yes. Yes.
MS EASTMAN: And you now know that the orders were made by VCAT, and you've got a copy of the orders?
MR CARTWRIGHT: Yes.
MS EASTMAN: I think you might even have a copy with you there.
MR CARTWRIGHT: Yes.
MS EASTMAN: And, Commissioners and Chair, you have a copy of the application behind tab 4 in the tender bundle. And the Commissioners have had a read of this but, essentially, the reason that is set out in the application is that you're not able to manage your financial affairs?
MR CARTWRIGHT: I think that's correct. That's what it says.
MS EASTMAN: And you have no idea what that's supposed to mean or why the application was made. You say:
"It makes no sense to me that it could be determined I was unable to make financial decisions, yet the doctor said I had capacity to make medical decisions."
And so you were and you still are a little confused about how you could make some decisions but not do your financial decisions; is that right?
MR CARTWRIGHT: It frustrates me, and I think if a doctor or any doctor, including my specialist, turned around and said I couldn't make medical decisions with my history, it would be a joke. I would I would assume that the severity of making medical decisions and the understanding the risks of making those would be far more responsibility than spending money that I say with this respect that you're going to get more in a fortnight anyway. You have a chance to redeem yourself, so to speak, but if you make a wrong medical decision you can't undo that.
MS EASTMAN: And you have seen on the document that there was a box ticked to say that you had received or if they had sent a copy of this application to you.
MR CARTWRIGHT: Yes.
MS EASTMAN: And people put, "Interested parties.” So you don't remember seeing that application at the time. When we are talking about "interested parties", you see that your foster mother was listed as an interested party on the application.
MR CARTWRIGHT: Yes.
MS EASTMAN: And you were 20 years old at this time.
MR CARTWRIGHT: Yes.
MS EASTMAN: And so you weren't quite sure why your foster mother needed to be copied on the application; is that right?
MR CARTWRIGHT: That's correct. A few things: I was 20. I mean, I'm a legal adult. I wasn't living at home for it wasn't a great, you know, exit to home but that's neither here nor there and no one asked me. So I don't understand.
MS EASTMAN: So you know now that the application was heard by the tribunal on 21 January 2016 and on the same day VCAT made an order appoints State Trustees as an administrator to manage your finances.
MR CARTWRIGHT: Yes.
MS EASTMAN: Did you go to that Tribunal hearing?
MR CARTWRIGHT: No. And I would assume that if I went I would be very vocal. I was still immature at the time, I agree, but I don't think VCAT would have been so quick if I was able to be there because at least I would have had some sort of voice heard even if I still had to go on the order.
MS EASTMAN: How did you find out that the orders were made?
MR CARTWRIGHT: I think they walked in with the paperwork, the person that applied for it. And still to this day, I talk to that person, you know, on an intermittent basis because I like to be friendly and network with just people in general and they have never once mentioned it.
MS EASTMAN: You haven't you don't have ill feelings towards that person at a personal level, do you?
MR CARTWRIGHT: No. It is what it is.
MS EASTMAN: But it's something that
MR CARTWRIGHT: I will I will I will what's the saying, I will I will I will forgive but I won't forget.
MS EASTMAN: You I'm looking now at your paragraph 16, you say.
“The entire process of the appointment State Trustee as your administrator was incredibly unjust and unfair.”
And you want to tell the Royal Commission:
I don't recall ever being told about the hearing and I did not attend the hearing. I was never given the opportunity to have my voice heard. I didn't have support to represent my interests and decisions were made for me by others who supposedly knew what was best for me without so much as hearing my voice. I did not lack the skills to articulate and express my own views. Instead the whole process I was silenced.”
What was the impact on you when the decision was made in terms of how you could spend your money and what that felt like for you as a young person.
MR CARTWRIGHT: I was going through this with my lawyer beforehand. I don't know the exact words but all I know is your life stops. It's just you may as well be you may as well have your identity stripped really. Like you can't do anything. Like I can't even go to the bank and, like, ask to withdraw money because if it's over the limit, (a), there is no money there; (b), you get given a card that State Trustee transfers money on a day that is predetermined, and if it's a dollar or two out of your agreed spending range you have to get an invoice and it takes two weeks. You just you can't do anything. It's yeah. You just stop existing in an odd way because you can still live, you still have freedoms, but you don't have freedoms.
MS EASTMAN: It was frustrating, wasn't it, to think, "How could this decision be made by people who don't know me"; is that right?
MR CARTWRIGHT: Yeah. Yeah. It's yeah. And like without context. Probably I in all fairness, probably looking at a piece of paper and seeing what they wrote you could probably make any judgment, really.
MS EASTMAN: And one of the bits of information that was available to the VCAT was a medical report?
MR CARTWRIGHT: Yes.
MS EASTMAN: And this is, if you are following me and I'm following you, paragraph 22. So I am just jumping a little ahead on this bit. There was a medical report from a GP who you didn't have much of a relationship with and you think the GP didn't know you very well. I think you raised this question: why wasn't a medical report, if that's what was needed, taken from or obtained from one of the medical professionals that you had spent a lot of your life with who had got to know you, who had treated and supported you over many years with the times that you have been in and out in hospital. So you raise that question: why not go to the specialist who knew you your whole life rather than just your local GP?
MR CARTWRIGHT: Yes, I agree. And I even on that point, I don't really talk about to my specialist about my money. Sometimes we talk about my mental health but that's not even really important either. We talk about keeping me alive and keeping me moving. And I don't think it's something I consciously think that I would have to go to my doctor and talk about.
MS EASTMAN: And the other is no one sort of gave you a test to work out whether you could actually make decisions about spending and budgeting and things.
MR CARTWRIGHT: No.
MS EASTMAN: Your understanding was this decision was made because people questioned your spending.
MR CARTWRIGHT: Yes.
MS EASTMAN: Or that there might be some bills like the chemist that you haven't paid on time.
MR CARTWRIGHT: Yes, yes.
MS EASTMAN: So that sort of was the reason you think that started the process.
MR CARTWRIGHT: Yes.
MS EASTMAN: Then the GP said, "He can't manage his financial affairs", and VCAT then made the decision based on that information, that's your understanding; is that right?
MR CARTWRIGHT: Yeah, that's how I feel. Yeah.
MS EASTMAN: So you had this order in place for three years?
MR CARTWRIGHT: That's correct.
MS EASTMAN: Okay. So let's can we go three years forward. Can we go to March 2019?
MR CARTWRIGHT: Yes.
MS EASTMAN: You're with me?
MR CARTWRIGHT: Yes.
MS EASTMAN: Right on the time.
MR CARTWRIGHT: Yes.
MS EASTMAN: So the way the order was, is that it had to be reviewed after three years. So you didn't do anything in that three-year period to say, "Hey, I need to ring Villamanta Legal Centre and challenge this"?
MR CARTWRIGHT: No.
MS EASTMAN: You didn't even know about that at the time?
MR CARTWRIGHT: No.
MS EASTMAN: So we get to March 2019 and what did you understand to be the reason why the administration order had to be reviewed?
MR CARTWRIGHT: Because
MS EASTMAN: Can you remember that?
MR CARTWRIGHT: There's a I
MS EASTMAN: I'm up to paragraph back to 18 and 19 in your statement.
MR CARTWRIGHT: Okay.
MS EASTMAN: Yes. So paragraph -
MR CARTWRIGHT: I think my understanding was nothing can go on forever, so it has to be reviewed at some point one way or another to see if I have made any progress.
MS EASTMAN: Did you think for this time that you might be able to be heard and people would listen to you?
MR CARTWRIGHT: Yeah, I would have hoped.
MS EASTMAN: And did you think that you would have to be able to show VCAT and the tribunal member, the judge, sort of making the decision at VCAT, that you could spend your money responsibly?
MR CARTWRIGHT: Not really, in hindsight, yes, but I didn't know how even the process went. So, like, I didn't know what the judge would or wouldn't ask me because no one had told me.
MS EASTMAN: And did you go to that hearing?
MR CARTWRIGHT: No.
MS EASTMAN: But the outcome of that hearing was that the order was extended; is that right?
MR CARTWRIGHT: Yeah.
MS EASTMAN: And one of the issues that you raise is, "Well, if the order was needed in 2016 why didn't someone come and talk to me and help me get better on my skills in spending and budgeting in that three year period?” So you don't remember anybody giving you support to upskill your financial literacy or budget skills, is that right?
MR CARTWRIGHT: No. No. Nothing more than just general support conversation but nothing formal or structured or anything.
MS EASTMAN: Okay.
MR CARTWRIGHT: Not like if you want this, we can do this.
MS EASTMAN: And in terms of the VCAT making this second order, you have now seen a report that the State Trustee prepared in relation to that review application?
MR CARTWRIGHT: Yes.
MS EASTMAN: This is number so I think sorry, I might have misled you. I think you did go -
CHAIR: It's behind tab 26.
MS EASTMAN: I think I might have misled you.
MR CARTWRIGHT: Okay.
MS EASTMAN: I think you did go to the March 2019 hearing. I'm sorry, I know there is so many dates.
MR CARTWRIGHT: Yes, I agree. There is I believe I didn't go to the first review, but I may have 2019 seems like the right amount of distance. I did go to one of them.
MS EASTMAN: We have got two in 2019.
MR CARTWRIGHT: Okay.
MS EASTMAN: So the first one. So for that first one in March 2019, the State Trustee did a report and you have got that and, Commissioners, you will find that behind tab 26 and that report, did you get to see a copy of the report at the time, do you remember?
MR CARTWRIGHT: No, I don't think so. I think it may have been emailed to me, like, the day before or something but I don't remember reading it. Like I got it once I was in the courtroom.
MS EASTMAN: Yes. And the report says things like this:
“Feedback was given by the staff that you tended to spend your money quickly.”
MR CARTWRIGHT: Yes.
MS EASTMAN: And so it had been agreed that the State Trustee would deposit an allowance into your bank account in smaller payments throughout the week to assist you to make the money last longer; do you remember that?
MR CARTWRIGHT: Yes. I would say from a personal perspective allowance is pretty, like, “I'm allowing you to have your money”. But, yes, continue.
MS EASTMAN: And the report sort of sets out every almost sort of every source of money that you had, and it sets out what your bills are and what your spending was and one of the issues was around Foxtel; is that right?
MR CARTWRIGHT: That's correct.
MS EASTMAN: And the gym.
MR CARTWRIGHT: Yes.
MS EASTMAN: So two things that were really important in your life, and it still is, going to the gym; is that right?
MR CARTWRIGHT: Yes, yes.
MS EASTMAN: I think you even asked me yesterday, "Where is the local gym?” Okay. So going to the gym is really important for you?
MR CARTWRIGHT: Yes.
MS EASTMAN: And that's something you want to spend your money on?
MR CARTWRIGHT: Yes.
MS EASTMAN: And Foxtel, I think you go up and down on Foxtel.
MR CARTWRIGHT: I don't have Foxtel anymore. I have learnt in my maturity that it's overrated.
MS EASTMAN: Okay. But at one time Foxtel was pretty important as well?
MR CARTWRIGHT: Yes.
MS EASTMAN: Okay.
MR CARTWRIGHT: Yes.
MS EASTMAN: And there were a few other things that you really wanted to do, and this report says that you wanted to do some further education.
MR CARTWRIGHT: Yes.
MS EASTMAN: And that was going to TAFE.
MR CARTWRIGHT: Yes.
MS EASTMAN: That you wanted to have a holiday at the Gold Coast.
MR CARTWRIGHT: Yes.
MS EASTMAN: And you went on a cruise in March 2019.
MR CARTWRIGHT: Yes.
MS EASTMAN: That's on page 3. So all these things about your life and where you were spending money they are all set out in a report.
MR CARTWRIGHT: Yes.
MS EASTMAN: And then you will see, if you look at the report, there is this little heading that says Matters of Interest Legal Issues.
MR CARTWRIGHT: Right.
MS EASTMAN: Do you see that?
MR CARTWRIGHT: Yes.
MS EASTMAN: It says:
“Mr Kaplan was recently sent us a Optus bill that was in you the name of Life is a Battlefield. The State Trustees conducted a company search and Mr Kaplan is listed as a director and secretary of the company.”
MR CARTWRIGHT: Yes.
MS EASTMAN: Do you remember being told that if you are under an administration order you cannot be a director and secretary of a company?
MR CARTWRIGHT: Yes. I got to the once I had done it.
MS EASTMAN: Did you know about that before?
MR CARTWRIGHT: No. No.
MS EASTMAN: Okay. So let's talk about Life is a Battlefield.
MR CARTWRIGHT: Sure.
MS EASTMAN: It's a documentary that you have been making or now made over a number of years; is that right?
MR CARTWRIGHT: Yes, that's correct.
MS EASTMAN: And what you wanted to do was to document your life, like, it's almost like a reality documentary.
MR CARTWRIGHT: Yes. You (indistinct) label it like that, yes. Some people ask me what it's about, I say it's just an open glimpse into my life, there is no storyline or structure to it but. Yes.
MS EASTMAN: And part of it is you wanted to do this documentary so you could share your experiences, but also to help people who are able bodied to even just have like a window into your world of living with disability?
MR CARTWRIGHT: Yes.
MS EASTMAN: And you wanted to change people's attitudes about disability and see that notwithstanding you often have lots of cords and tubes and a whole lot of stuff going on -
MR CARTWRIGHT: Yes.
MS EASTMAN: that you are a real human being.
MR CARTWRIGHT: Yes. I think, you know, even some support workers were just like, "Oh wow, that's what happens when you go into hospital.” And you know, they are just like, I tell some people I live in a disability group home but there is so much more to it. But yeah.
MS EASTMAN: So doing Life Is A Battlefield, you wanted to sort of set up a company to do that?
MR CARTWRIGHT: Yes. And I still have it.
MS EASTMAN: And can I just so by this stage, 2019, you had already you had been working, hadn't you? Had you started your job in the supported workplace by this stage or did that come later?
MR CARTWRIGHT: That may have come later.
MS EASTMAN: Okay.
MR CARTWRIGHT: Yes. That came later. It wasn't in my statement, so I'm like, "What from you referring to?” But, yes, my movie came later.
MS EASTMAN: Alright. So this was the this was information to the that VCAT had in terms of that March hearing, and you don't remember seeing this at the time; is that right?
MR CARTWRIGHT: No.
MS EASTMAN: And you have also then included the decision of VCAT.
MR CARTWRIGHT: Yes.
MS EASTMAN: And that, Commissioners, you will see behind number 27. So the order was made on 21 March 2019, and it says:
“The tribunal is satisfied that the represented person has a disability, is unable, by reason of that disability, to make reasonable judgments about their estate and needs an administrator.”
And that order was said to be an order that would stay in place until 30 September 2019. And it says this:
“In the interim a full financial independence program will be trialled as discussed at the hearing. The represented person
That's you
- may request an earlier hearing if he obtains a medical report that supports an earlier reassessment of the administration order.”
Do you remember that?
MR CARTWRIGHT: Do I ever, yes.
MS EASTMAN: Okay. So the second
CHAIR: Ms Eastman, I'm sorry, where were you reading from?
MS EASTMAN: I'm reading from the tribunal's order which is at tab 27 -
CHAIR: Yes.
MS EASTMAN: at paragraph 3.
CHAIR: Yes. Thank you very much. Yes, I've got that. Thank you. Can I ask Mr Cartwright a question arising from the report that was provided that Ms Eastman has just referring to?
MR CARTWRIGHT: Yes, Chairman.
CHAIR: In that it talks about your having a holiday at the Gold Coast and you went on a cruise. What did you have to do in order to get the money to pay for that?
MR CARTWRIGHT: That's a good question, Chairman. I had to first ask the State Trustees if I could have a holiday and, if I remember correctly, that was always put into like the end of year budget. So it was always allocated that I wanted to do that at some point in the year. Get a quote, normally from a travel agent because if you just booked it online you wouldn't be able to get an invoice and then give a month or two notice so State Trustees had enough time to pay it. So it wasn't very enjoyable, Chairman, because everything was the fun was taken out of it because there was so much wait time and hoping that it will get approved.
CHAIR: How long did it take to get approval from the time you decided you would like to go on a cruise, or to go to the Gold Coast, how long did it take to get approval from the Trustee to do that?
MR CARTWRIGHT: Probably a month, if they were aware that it was coming, and that's me calling them every week just to, you know, remind them that I booked preliminary flights and I don't want to miss my flight. But if they didn't know, whenever they got around to it.
HIS HONOUR: Did you actually book the flights before the trustee approved the holidays or did you have to wait?
MR CARTWRIGHT: No, I was on it like I was on the order when I did the holidays. I think at the time it was a way for me to be able to spend my money and enjoy it because, you know, calling every couple of weeks to get extra money was just tiring and it got old very quickly.
CHAIR: Yes. Right. So, in short, you had to get permission to go on a holiday -
MR CARTWRIGHT: Yes.
CHAIR: and pay for it out of your money?
MR CARTWRIGHT: Yes, that's correct, Chairman.
CHAIR: Yes, thank you.
MS EASTMAN: Alright. So in that period from March 2019 to the third tribunal hearing which is September -
MR CARTWRIGHT: Yes. We are up to when they trialled the FRD, yes.
MS EASTMAN: Yes. So that time between March and September you had to practice and do a bit of budgeting.
MR CARTWRIGHT: Yes.
MS EASTMAN: And show that you were going to be wise with spending your money.
MR CARTWRIGHT: Yes.
MS EASTMAN: And you could demonstrate that you could make decisions about your spending.
MR CARTWRIGHT: Yes.
MS EASTMAN: And meet your financial obligations -
MR CARTWRIGHT: Yes.
MS EASTMAN: as they arose; is that right?
MR CARTWRIGHT: That's correct.
MS EASTMAN: So you are back at the Tribunal for one last time.
MR CARTWRIGHT: Yes.
MS EASTMAN: From 30 September.
MR CARTWRIGHT: Yes.
MS EASTMAN: And, again, the State Trustees had prepared a report about you this time it's behind number 28 so you had that report.
MR CARTWRIGHT: Yes.
MS EASTMAN: And the and I won't go into the detail of the report, but you were the report notes that you were an NDIS participant
MR CARTWRIGHT: That's correct.
MS EASTMAN: and it says that, in terms of your funds, $150 for clothing and $100 for miscellaneous, that that demonstrated that you were budgeting well with your allowance.
MR CARTWRIGHT: Yes.
MS EASTMAN: But the trial had only been a few months; is that right?
MR CARTWRIGHT: That's correct.
MS EASTMAN: But this time a tribunal revoked the order and you've got a copy of that order, Commissioners, behind tab 29 so the order went. So you no longer had the State Trustee managing your affairs and that's been the case ever since, hasn't it?
MR CARTWRIGHT: That's correct. The anxiety and the frustration of the thought of going back would prevent me from going back.
MS EASTMAN: Okay. When you look back at the time with the State Trustee and I'm up to number 30 now is never once do you recall meeting a person who was supposed to be your administrator, that's your memory; is that right?
MR CARTWRIGHT: Yes, that's correct.
MS EASTMAN: And you had to mostly deal with the trustee by telephone; is that right?
MR CARTWRIGHT: Yes.
MS EASTMAN: And your memory is that you might have had different people to speak to on the phone and sometimes you had to explain your situation over again; is that right?
MR CARTWRIGHT: Yes.
MS EASTMAN: And there was no consistency and it felt like you were going back to the beginning every time you called?
MR CARTWRIGHT: Yeah. For example, as the Chairman mentioned, like, for example, the holiday, if I called and there was, like, you know, a note on the system saying, "Yes, he can, you know, go on a holiday", obviously, the people on the phone were doing their due diligence, so I had to go through the basic questions every time when it had already been accepted that, "You can go on a holiday, we just have to logistically get the money paid.”
MS EASTMAN: Yes. But it was also things like even doing a driver's licence.
MR CARTWRIGHT: Anything.
MS EASTMAN: And another thing you decided to do, when you were 24, is you thought, "Right. I'm going to plan my own funeral.”
MR CARTWRIGHT: Yeah, because why not.
MS EASTMAN: And you decided to go and visit a funeral director.
MR CARTWRIGHT: Yes.
MS EASTMAN: Check out the situation.
MR CARTWRIGHT: Yes.
MS EASTMAN: And work out how much it was going to cost.
MR CARTWRIGHT: Yes.
MS EASTMAN: And how did the State Trustees go when you said, "I would like some money to organise my funeral"?
MR CARTWRIGHT: I don't know exactly but I don't think they would have given it to me, and I don't think they would have seen the point of a 24 year old planning their own funeral. But in my case my life I was not meant to walk or talk or live over, like, a month old. So and with my complicated circumstances, I would rather respect my foster family and get buried the way I would like to. Yes. It's when you put some meaning behind what you are doing, yes, it's important.
MS EASTMAN: So there was this you had this sort of sense that often if the trustees disagreed with requests for spending that they may not really have thought about how you, as a young person, wanted to your money and made assumptions. So a bit like an assumption about the funeral arrangements, if you wanted to pay for that in advance but also assumptions about spending money on video games and
MR CARTWRIGHT: Anything. It was assumptions about anything.
MS EASTMAN: And so you really thought, "Do the State Trustees give thought to how young people might want to spend their money?” And you wanted to raise that as an issue for the Royal Commissioners?
MR CARTWRIGHT: Yes, yes.
MS EASTMAN: Okay. So, in terms of moving forward, you now live in your own unit; is that right?
MR CARTWRIGHT: That's correct.
MS EASTMAN: I'm up to number 37.
MR CARTWRIGHT: That's correct.
MS EASTMAN: And you have been doing that since late 2021?
MR CARTWRIGHT: Yes.
MS EASTMAN: So COVID was a really tough time.
MR CARTWRIGHT: COVID was a thing.
MS EASTMAN: And I think when we met you during COVID you had some pretty strong views about the vaccine rollout.
MR CARTWRIGHT: Yes.
MS EASTMAN: And you have talked about the impact on your mental health and the isolation during COVID.
MR CARTWRIGHT: Yes.
MS EASTMAN: That was also a time that helped you say, "These are the decisions I want to make about my own life.”
MR CARTWRIGHT: Yes.
MS EASTMAN: And with the support of a friend you've recruited your own team of support workers?
MR CARTWRIGHT: That's correct.
MS EASTMAN: It was terrifying at first, wasn't it?
MR CARTWRIGHT: Yes. And I think partly it's a it's a cultural thing because it was terrifying that these people were so proactive and normal and it's just like what? I just said something outrageous, and you are going to let me go and do it because that's what I want to do? Yeah, sure, go do it.
MS EASTMAN: But you are loving the freedom of directing your own
MR CARTWRIGHT: Still terrified just in case
MS EASTMAN: Still terrified?
MR CARTWRIGHT: Just in case you make the wrong decision, but, yes, I'm enjoying the freedom.
MS EASTMAN: But the terrifying aspect of it helps you make decisions to be independent, doesn't it?
MR CARTWRIGHT: Yeah, I think -
MS EASTMAN: You have to do it.
MR CARTWRIGHT: as my lawyer said, a little bit of anxiousness is good. It keeps you focused, yes.
MS EASTMAN: But you pay your rent, you pay your bills and do you that on time?
MR CARTWRIGHT: Yes.
MS EASTMAN: And you have saved money as well?
MR CARTWRIGHT: Yes.
MS EASTMAN: And this whole experience has caused you to be very strong in terms of self advocacy.
MR CARTWRIGHT: Yes.
MS EASTMAN: And you have thrown yourself into learning everything you can about advocacy; is that right?
MR CARTWRIGHT: Yes.
MS EASTMAN: So we met you as part of the Valid team.
MR CARTWRIGHT: Yes.
MS EASTMAN: And I think you have done a lot of work with Valid, haven't you?
MR CARTWRIGHT: I am actually employed with them one day a week now. So yes.
MS EASTMAN: And tell us about how you learn those skills of being an advocate?
MR CARTWRIGHT: Talking to people, lived experience, self reflection, growth, maturity, critical conversations, deep thought. All the rest that comes with maturity. And I think I'm able to do that because my doctor at the Children's Hospital was is the bioethics Chairman for the Children's Hospital. So he's got an ethics background and I credit a lot of my ability to do what I do because of the nurses and doctors and healthcare workers and support staff out there.
MS EASTMAN: As you said at the beginning, you spent a lot of time and listened to how adults talk, how they make decisions, and you've absorbed all of that along the way.
MR CARTWRIGHT: Me, yes. Me and my friends were talking about death and sickness at, like, 12 or 13 years old late at night. So, yes, I grew up very quickly.
MS EASTMAN: Can I read this bit of your statement. So it's paragraph 31.
MR CARTWRIGHT: Sure.
MS EASTMAN: And you say what really stood out for you during the whole ordeal of having an administrator appointed is:
“That I wouldn't have gone through any of this if I didn't have a disability. If I didn't have a disability I could have blown all my Centrelink payments the same day I got paid. I could have spent it on whatever I wanted. The difference between me and someone who has the freedom to make really bad financial decisions is that I have an intellectual disability and somehow that automatically meant that I wasn't capable of any financial decisions at all.”
MR CARTWRIGHT: Yes.
MS EASTMAN: That must be a hard thing to talk about, is that sense that you feel because you have an disability you have been treated differently and that's had a big impact on your human rights; is that right?
MR CARTWRIGHT: It's hard because it's frustrating. And the only reason why it's frustrating is because I know for damn sure that if anyone else did it they wouldn't be controlled or stopped just because the other person didn't like what they were doing and that goes for State Trustees and that goes for service providers because they use this stuff to get what they want to make their life easier. Not mine.
MS EASTMAN: And, as you say in 45, you are struggling to talk about your experiences:
“Without being angry about the way I was treated.”
Mr Cartwright, is this because you are not allowed to be angry about the way you are treated?
MR CARTWRIGHT: Yeah. And I reflected and I had a few decisions. I either come out arguing or come out even more angry. But, no, unfortunately, people with disability that can talk aren't going anywhere and words are just words. And they mean nothing if you don't change and I will do everything by the book, but I will make sure that the people that I interact with I can do the best and if they if people think that this is going to be over and I'm going to forget about this and I'm going to throw this paper down the bin and not keep it, then people will be sadly mistaken.
MS EASTMAN: Alright. Now, the last thing I want to ask you about and you have put it in your statement in this way.
“Another law I never knew of.”
MR CARTWRIGHT: Yes.
MS EASTMAN: Can I ask about that. So, let's come back to Life Is A Battlefield.
MR CARTWRIGHT: The pinnacle of my
MS EASTMAN: The documentary. Which if people want to follow you they can see that on SBS.
MR CARTWRIGHT: Find me somewhere.
MS EASTMAN: Now they can see it on SBS.
MR CARTWRIGHT: Yes. Now.
MS EASTMAN: So, let's talk about how we got to now. So you did the documentary.
MR CARTWRIGHT: Yes.
MS EASTMAN: Some part of the documentary talked about the fact that you had the administration order.
MR CARTWRIGHT: Yes.
MS EASTMAN: And talked about you had to go to the Tribunal to have it overturned.
MR CARTWRIGHT: Yes.
MS EASTMAN: And I think there might have even been a shot of you walking around
MR CARTWRIGHT: Yes.
MS EASTMAN: the bit where the building is.
MR CARTWRIGHT: Yes.
MS EASTMAN: That's about it.
MR CARTWRIGHT: Yes.
MS EASTMAN: So you did the documentary. It aired on SBS as part of the International Day of People with Disability and then was on the streaming service.
MR CARTWRIGHT: It will be there for the next two and a half years. Yes.
MS EASTMAN: In the days after the initial screening, this is your understanding, VCAT wrote to SBS and said that there were concerns that the documentary breached clause 37 of schedule 1 of the Victorian Civil and Administrative Tribunal Act.
MR CARTWRIGHT: AKA the gag order.
MS EASTMAN: Okay. So, had you ever heard of clause 37 schedule 1 of the Victorian Civil and Administrative Tribunal Act?
MR CARTWRIGHT: No. But when I read it I understood it very clearly. It doesn't mince its words.
MS EASTMAN: Okay. And what do you mean it doesn't mince its words?
MR CARTWRIGHT: It's very, very straightforward that anyone, a part of it or interested parties or connected to it, can't speak about it or what it's about or really anything.
MS EASTMAN: So, SBS took the documentary off the website?
MR CARTWRIGHT: Yes.
MS EASTMAN: You contacted a lawyer.
MR CARTWRIGHT: Yes.
MS EASTMAN: Is that the lawyer sitting next to you?
MR CARTWRIGHT: Sure is.
MS EASTMAN: And you applied to VCAT to be allowed to show the documentary?
MR CARTWRIGHT: Yes.
MS EASTMAN: Did you have to make that application, or SBS make that application?
MR CARTWRIGHT: I made that application. Or my lawyer did.
MS EASTMAN: Okay. So in January this year -
MR CARTWRIGHT: On 3 January, when everyone is still at Christmas -
MS EASTMAN: When everybody is still at Christmas.
MR CARTWRIGHT: I'm in a courtroom.
MS EASTMAN: You are in a courtroom. So you go to VCAT.
MR CARTWRIGHT: Yes.
MS EASTMAN: You went to this hearing.
MR CARTWRIGHT: Yes.
MS EASTMAN: You had things to say.
MR CARTWRIGHT: Yes.
MS EASTMAN: Right. And what did VCAT do? I'm not going to give away the surprise. But a copy of it is behind tab 30. What ended up tell me about what VCAT was like that time and what you had to do?
MR CARTWRIGHT: It was it was it was great. My lawyer didn't say a word because the judge wanted to see I didn't realise it at the time, but the judge wanted me to tell my story to get myself out of it, to see how competent I was, and I looked at my lawyer and said, "Is there anything I missed", and they are just like, "Nope.” And, yes, they overturned it. They squashed it. They gave me permission basically.
MS EASTMAN: Yes. So you have got the
MR CARTWRIGHT: But I just put though, now that I have reflected on it, me and my lawyer found out very recently that the guardianship order and the Act that was in place at the time didn't even have that law there. So no one had any right to even raise that concern. So it leaves me wondering: what were the true motives of going to VCAT? And I will leave it at that.
MS EASTMAN: But you have got the written reasons -
MR CARTWRIGHT: Yes.
MS EASTMAN: from VCAT and the Commissioners can read those reasons and they talk about the importance of you being able to tell your story in public but also talk about why some of these gag rules are in place to protect people's privacy. But VCAT decided you could talk about your own life, including the administration order, and that didn't stop you.
MR CARTWRIGHT: No.
MS EASTMAN: SBS now has the documentary back online.
MR CARTWRIGHT: Yes.
MS EASTMAN: But you decided that you are going to do something about this.
MR CARTWRIGHT: Yes.
MS EASTMAN: So in February this year you wrote to the Attorney General -
MR CARTWRIGHT: Yes.
MS EASTMAN: and you have petitioned them to the Attorney General to think about changing the law.
MR CARTWRIGHT: Yes.
MS EASTMAN: And you have, with your lawyer, taken steps to get the documents about you. So you can now have a look at all of the documents from VCAT.
MR CARTWRIGHT: Yes.
MS EASTMAN: Not only in relation to this application, but the other documents to understand what happened to you.
MR CARTWRIGHT: Yes. And, like, I agree that the law is needed but there shouldn't be a presumption and, like, an automatic just: no, you can't talk about it.
MS EASTMAN: So those are all the questions I wanted to ask you.
MR CARTWRIGHT: Yes.
MS EASTMAN: And the Commissioners might have some questions. But before I ask the Commissioners, was there anything else that I have forgotten to ask you about that you would like to talk about?
MR CARTWRIGHT: The only the only thing was with the FIP program, the so it was a six-month trial and the State Trustees, in their response, said that I, you know, didn't sign it straight away and that was because the judge requested that I have my weekly payment consolidated into one fortnightly payment and also all my bills given to me except my rent and the money for that and they didn't consolidate it for the first month or to and they when they consolidated it they didn't give me any extra money to pay those bills. So, I would have been out of pocket and I don't feel the the report says that, you know, "Uli has performed well because he hasn't asked for money.” Well, it doesn't need to be like that. It shouldn't be like that. And I was frustrated and upset because I felt like that this was my only opportunity to actually do it right and the judge was going to believe people that were smarter, that I couldn't do it.
MS EASTMAN: Yes.
MR CARTWRIGHT: But it wasn't set up correctly. But luckily I got I think two months and I did okay. But, again, I just didn't ask for money. That's not really proving that I'm able. It's just me sitting there and
MS EASTMAN: Finding your way around.
MR CARTWRIGHT: rolling with the punches for two months.
MS EASTMAN: Yes. Terrific. Thank you very much, Mr Cartwright. The Commissioners might have some questions for you.
CHAIR: Mr Cartwright, just before I ask my colleagues if they have got any questions, do you have the decision of the Tribunal we have just been talking about in front of you, the decision of January 2022?
MR CARTWRIGHT: I can find it, Chairman.
CHAIR: Would you mind?
MS EASTMAN: It's tab 30.
MR CARTWRIGHT: It's tab 30 in my volume.
CHAIR: I just would like to ask you, would you like to read paragraph 18 which is on page 6 if you would like to do that? Starting with the heading. Paragraph 18 the heading is: Is It In The Public Interest To Make An Order?
MR CARTWRIGHT: Is It In The Public Interest To Make An Order In This Case? Number 18:
“I think it is. Mr Kaplan is not only consenting to the information being broadcasted, he is proudly asserting his wishes and intention to do so. He has made the documentary together with a filmmaker and wants people to watch it. At the hearing today Mr Kaplan was a strong and capable advocate for himself and he talked of his passion and commitment to advocating for others who have experienced disability. He wants to tell a story about his life, so that others can learn from it and feel inspired and encouraged by it. This is a compelling reason to make the order.”
CHAIR: Yes, I thought it might be useful to read that. I will ask my colleagues if they have any questions to put to you. First I will ask Commissioner McEwin.
COMMISSIONER McEWIN: Thank you, Chair. Thank you, Mr Cartwright, for your evidence. I'm very grateful you provided it to us. I have a couple of questions if that's okay.
MR CARTWRIGHT: Sure.
COMMISSIONER McEWIN: The first one is about when you were talking about when you were 20 and you felt you should be able to spend your money like, you know, any 20 year old should be able to and that you felt the State Trustee didn't do enough to support you to understand financial management.
MR CARTWRIGHT: Yes.
COMMISSIONER McEWIN: What would have helped?
MR CARTWRIGHT: I think, like, a bit more support in school and, I learnt maths, but I didn't learn how to use the maths in school, and I don't know, Commissioner, but it just feels like it's once you are in it is set and forget. It's just done. It's over. There's there's this is just an assumption that you can't learn anything and, because of that, they don't know where to start. I'm not sure, Commissioner. It's anything would be better than nothing.
COMMISSIONER McEWIN: I think you made the point that school, you think the schools could have taught this more.
MR CARTWRIGHT: Yes. Or like practical skills, not just what the curriculum says.
COMMISSIONER McEWIN: Thank you. One more question: how would you describe the level of control that you felt the State Trustee had over you and your finances?
MR CARTWRIGHT: Absolute. There was done. You had no say, no nothing. You had no voice. You were just a number. They knew better. And because they there's a perception that they know better they can say things to defend themselves and, because we have a stigma of not being equal to everyone else, they just believe them. And when we get frustrated and upset, rightly so, we just get labelled as being difficult because they are appointed with power. So they know better.
COMMISSIONER McEWIN: Thank you.
MR CARTWRIGHT: Thank you, Commissioner.
CHAIR: Commissioner Ryan?
COMMISSIONER RYAN: Thanks, Uli, you are an exceptional person with an exceptional life, and I find myself, as I said, overwhelmed by that. But because you are so exceptional, do you mind first of all, I just want to ask you one detail: did you accumulate when you had the financial order imposed on you at age 20, I think it was about 20 years old when that happened?
MR CARTWRIGHT: Yes. Had you accumulated savings by that stage from your
MR CARTWRIGHT: I think so. I think I was in a couple of thousand in debt, to be honest.
COMMISSIONER RYAN: So how did you pay for the couple of holidays that you did have?
MR CARTWRIGHT: I guess I got to give credit to State Trustees. Their firm grip and strict rules made the ability to be in a surplus a lot quicker and easier than I could do it. I got to give them that.
COMMISSIONER RYAN: So can I I also left home at 16 and had a life up until the age of about 20 very similar to yours, not health and disability issues, but I was out of home at 16, I put myself through the high school the certificate the second time, so I think I'm at least allowed to ask you a tough question, if I may.
MR CARTWRIGHT: Sure.
COMMISSIONER RYAN: There is a sense to which I totally agree with you that the imposition of guardianship was too great but at the same time there's a lot of sharks out grabbing 20 year olds, selling them credit, encouraging them to take holidays they can't pay for, gym memberships that they will never pay off, and I have to say I fell victim to all of those things and wound up in a hideous level of debt at the age of 25. Is there a sense in which we're choosing between two extremes: you seem to have one complete extreme, is there not a role for someone who, indeed, does provide some guidance for a 20 year old that has absolutely no support in the world - how do we make sure that that didn't happen to you?
MR CARTWRIGHT: I agree. But, unfortunately, it still happened. The State Trustees, when I had big Optus bills or Foxtel bills, they just paid them without question, yes. So, yes, I agree, you know, they did protect me to some sort of extent, but they are meant to be responsible and there is no responsibility or accountability. I still racked up those debts. The only difference was they got paid because they had to pay it. But they didn't consider it they're like, "Oh, these are our obligations, we are going to pay $3500, even though it wipes out most of your savings.” So where is the responsibility? I agree where you are coming from, but it still happens.
COMMISSIONER RYAN: The reason I ask you that tough question is, I figured you would answer it better than anyone else in the world and I'm grateful for that.
MR CARTWRIGHT: I wanted to be optimistic but, like, it still happens, Commissioner.
COMMISSIONER RYAN: Thank you.
MR CARTWRIGHT: It's just the one person that does it. One entity.
COMMISSIONER RYAN: It's been a fascinating experience for me to listen to you. Thank you for coming to the Royal Commission.
MR CARTWRIGHT: No problem.
CHAIR: Mr Cartwright, I take it you now know that the Public Trustee was charging you amounts for administering this, in effect administering
MR CARTWRIGHT: Not at the time but, yes, I do now.
CHAIR: I'm just wondering when did you learn that there was a charge that the Public Trustee would impose for these services?
MR CARTWRIGHT: When my lawyer, Ms Anderson, told me about it and my support worker. I thought it was quite ridiculous. I understand that, you know, businesses need to make money and people to get paid, but, like, think my statement says like $45 a fortnight or a week. It seems you know, I only get paid $50 an hour for consulting. You know
CHAIR: According to the budget that is part of that report that was prepared in early 2019, the expenses charged were, effectively, $45 odd per fortnight but my question was really, when did you learn about this and from your I assume it was relatively recent?
MR CARTWRIGHT: Recently. That's correct, yes.
CHAIR: Yes. Alright. Thank you very much. Well, thank you. I join with my colleagues in thanking you for giving evidence and thanking you for the statement you have provided and explaining your experiences. It's been very helpful for the work of the Royal Commission, and we do appreciate what you've told us both today and in your statement. So thank you.
MR CARTWRIGHT: I would like to thank you and, you know, for the for the feeling of actually being heard and listened to and I appreciate you supporting us to try and change. Yes. It's been very comforting, and I wouldn't do it if I didn't feel like it was I was going to be valued or listened to. So thank you for spending your time to at least try.
MS EASTMAN: I have got another question for you.
CHAIR: Thank you for those comments.
MS EASTMAN: I want to ask you just a question following from Commissioner Ryan: do you see the situation as, on one hand it's the State Trustee and the other is that you are all completely by yourself having to do everything alone, or is there things in the middle about being supported to make your decisions and having some help when you need it? Is it only the sort of, one or other?
MR CARTWRIGHT: With my mental health I normally like black and white but, in this case, it is black or white. It's one or the other. There's no middle.
MS EASTMAN: So you see it as one or the other.
MR CARTWRIGHT: Yes.
MS EASTMAN: So do you think there is any room for support in terms of making decisions?
MR CARTWRIGHT: Yes. But in saying that, support workers were on my back to get me to pay bills and as soon as I went on to State Trustees, they were just like done, over. So it's one or the other. It's either they are pushing against you to pay bills, or they are just like, "No, not our problem anymore.”
COMMISSIONER RYAN: So, you did have some support?
MR CARTWRIGHT: Yes. But it wasn't productive.
MS EASTMAN: So is it partly getting the right support that you can see?
MR CARTWRIGHT: It's the approach. Yes, it's the approach. It's the way of doing it. But the answer to your question is: there is one or the other. That's it.
MS EASTMAN: Okay. Alright. Is there anything you want to add? Can I ask Ms Anderson some questions about this later, when she -
MR CARTWRIGHT: Yes. I was going to do that. That's
MS EASTMAN: Do you want to talk about that.
MR CARTWRIGHT: That's a nice thing to end on.
MS EASTMAN: Okay. Let's do that. I don't know what you have got there.
MR CARTWRIGHT: Recently I made sure that my rights and my security of my voice was reinforced. I went and got a supportive guardian and the reason why I did that was you would assume that it would be something that I wouldn't want to do, but there was a presumption in that law that I can make my own decisions. And I feel like that I had to do it, because I'm having struggles with medical teams and me getting frustrated and upset, and when it gets to the point where I'm angry enough they turn around and ask me, "Speak to your mum." It's, like, I'm 27, I don't need to speak to my mum. So, it's very child like and patronising. But it's sad that I had to do that to protect my own interests. I just shouldn't need to do it.
MS EASTMAN: We are going to talk later this afternoon with The Public Advocate about what a supportive guardian means.
MR CARTWRIGHT: Yes.
MS EASTMAN: So, I'm not going to ask you the detail of it, but it's very different to having a guardian who does all the decision making over where you live or medical matters.
MR CARTWRIGHT: Yes. Definitely.
MS EASTMAN: But you have decided that you want to have the back up of a supportive guardian.
MR CARTWRIGHT: That's what I'm getting at. It's sad that I need that sort of back up, I shouldn't need it.
MS EASTMAN: But it's your choice to do this?
MR CARTWRIGHT: Yes. Definitely.
MS EASTMAN: And it's the way you want it to be done.
MR CARTWRIGHT: Yes. Definitely.
MS EASTMAN: So, if you need that back up support you have now got something in place to help you know when to trigger it, and what is going to happen.
MR CARTWRIGHT: Definitely. And I'm in control of it and I think I would leave people listening and, you know, the Commission with this thought: I am example of what support can do. Like, I wouldn't be here just because I'm completely capable. I've had immense amount of people behind me and support.
MS EASTMAN: And this is something that's just really happened even in the last week or so.
MR CARTWRIGHT: Yes. Yes. Definitely. Yes.
MS EASTMAN: Okay. That's all I wanted to ask you. Chair, could I tender into evidence Mr Cartwright's statement and the accompanying material, and if you could mark these documents as Exhibit 30 062 through to 30.072.
CHAIR: Yes. Mr Cartwright's statement and the accompanying documents will be admitted into evidence and given the markings indicated by Ms Eastman. Thank you.
<EXHIBIT 30.062 THROUGH TO 30.072 STATEMENT OF ULI CARTWRIGHT AND ACCOMPANYING DOCUMENTS
MS EASTMAN: Thank you. Could we adjourn now for morning tea until 11.30 am.
<THE WITNESS WITHDREW
CHAIR: Yes. We will adjourn until 11.30 am Sydney time. Thank you.
<ADJOURNED 11.13 AM
<RESUMED 11.34 AM
CHAIR: Yes, Ms Eastman
MS EASTMAN: Thank you. Our next witness is John O'Donnell, and he joins us here in the hearing room. I think you are going to take an oath; is that right?
MR O'DONNELL: Yes, I am going to take the oath.
CHAIR: Mr O'Donnell, thank you very much for coming to the Royal Commission at Homebush today to give evidence. As you probably know, we have Commissioner McEwin and Commissioner Ryan in the hearing room in Homebush with you. I happen to be in the Sydney hearing room. So, I'm appearing remotely. We thank you for your statement that you have provided and for your willingness to give evidence to us today. If you would be kind enough to follow the instructions of the associate, who is to your right, she will administer the oath to you. Thank you very much.
<JOHN O’DONNELL, SWORN
CHAIR: Thank you, Mr O'Donnell. I will now ask Ms Eastman to ask you some questions.
<EXAMINATION BY MS EASTMAN SC
MS EASTMAN: Thank you. So, Mr O'Donnell, would you like me to call you John or Mr O'Donnell?
MR O'DONNELL: John.
MS EASTMAN: John. So, John, thank you for coming to the Royal Commission. You have got with you a statement and that was a statement that you made on 9 November; is that right?
MR O'DONNELL: Correct.
MS EASTMAN: And you need some support sometimes with reading and writing?
MR O'DONNELL: Correct.
MS EASTMAN: So you prepared the statement with your lawyer and also your support people; is that right?
MR O'DONNELL: Correct.
MS EASTMAN: So when you made the statement it sets out and records all of the things that you talked about, but someone read the statement to you, so, when you agreed that it's true, you did that because someone read the statement to you; is that right?
MR O'DONNELL: Correct.
MS EASTMAN: And you know that I'm going to use the statement today to ask you some questions and I know you have got a copy there.
MR O'DONNELL: Yes.
MS EASTMAN: But if at any time you want me to stop or to slow down you can let me know?
MR O'DONNELL: I will be.
MS EASTMAN: Sometimes I can get a little bit too fast.
MR O'DONNELL: Yes.
MS EASTMAN: So, you have got to keep me on track; is that okay?
MR O'DONNELL: Yes.
MS EASTMAN: So, when you have read the statement everything that was read in the statement is true; is that right?
MR O'DONNELL: Correct.
MS EASTMAN: And it is true to the best that you can remember things?
MR O'DONNELL: Correct.
MS EASTMAN: And sometimes you might not remember everything absolutely perfectly; is that okay?
MR O'DONNELL: Correct.
MS EASTMAN: But you wanted to do the very best that you can to tell the Royal Commission your story.
MR O'DONNELL: Yes.
MS EASTMAN: And there might be like a date or something which might not be absolutely right, but you've done your absolute best to get the right dates and order of things.
MR O'DONNELL: Correct.
MS EASTMAN: Alright. So, can I start with asking a little bit about you. So do you mind me saying how old you are?
MR O'DONNELL: I am 23 years old no, 32 years old. Sorry. I live independently with my cat, Martino, and also I live independently and I'm my things are pointing to me I'm becoming a Josephite companion of Mary MacKillop.
MS EASTMAN: Can I stop you there.
MR O'DONNELL: Sorry.
MS EASTMAN: I want to ask you a little bit more about Martino.
MR O'DONNELL: Martino is my precious cat.
MS EASTMAN: Why is Martino so precious?
MR O'DONNELL: Me is my he is my darling cat. I absolutely love.
MS EASTMAN: How long have you had Martino?
MR O'DONNELL: For one year.
MS EASTMAN: You look after Martino all day every day?
MR O'DONNELL: Yes.
MS EASTMAN: So, when you have said you are independent living, I'm going to ask you some questions a little bit in a little bit of time about where you live and how you live. But you are just about to say that you are a Catholic and you are becoming a Josephite companion of Mary MacKillop and that your faith is important to you.
MR O'DONNELL: Correct.
MS EASTMAN: Can I ask you some questions about your faith?
MR O'DONNELL: Yes. I attend church quite frequently and I really have falling fallen in line with Mary MacKillop's Josephites because that is so important to me and working in the charisma of Mary MacKillop. So, she's a good she's an awesome saint.
MS EASTMAN: Well, she's, I think, the only Australian saint.
MR O'DONNELL: She's the only Australian saint that we have. So that's special.
MS EASTMAN: So, one of the things we are going to talk about today is who you are and your identity. So, (1), you have told us how old you are, and then you have told us about your faith. But you have also learnt, as you have become an adult, that you have Aboriginal heritage.
MR O'DONNELL: Correct.
MS EASTMAN: And you identify as an Aboriginal man from the Windamarra Aboriginal community?
MR O'DONNELL: Correct.
MS EASTMAN: And you are really proud of this and that plays a big role in your identity.
MR O'DONNELL: It does. Very much so.
MS EASTMAN: Another aspect of your identity is how you identify, and, in this statement, you have said you are a proud cisgender gay man, but I think you have said the better way to describe you is gender fluid; is that right?
MR O'DONNELL: Correct. And that was only a couple of weeks ago that I actually come out as gender fluid. So that's pretty special.
MS EASTMAN: Okay. And I know this is a topic that you wanted to talk about as we go on in terms of coming out
MR O'DONNELL: Yes.
MS EASTMAN: as a gay man.
MR O'DONNELL: Yes.
MS EASTMAN: Now, you also live with an intellectual disability.
MR O'DONNELL: Correct.
MS EASTMAN: Is that alright if I ask but that?
MR O'DONNELL: I have a intellectual disability which is CP.
MS EASTMAN: And how has that intellectual disability had an effect on your life in terms of your identity?
MR O'DONNELL: I have trouble reading and writing. And so this is why, as I said in paragraph number 1, the problems with reading and writing, yeah. So that's
MS EASTMAN: So let me ask you a little bit more about the things that you do. You enjoy to be involved in advocacy organisations.
MR O'DONNELL: I do, yes.
MS EASTMAN: And you are in something called Rainbow Rights.
MR O'DONNELL: And it's only in the first of its kind only in Australia. That's pretty special.
MS EASTMAN: And what does Rainbow Rights do?
MR O'DONNELL: Rainbow Rights is an advocacy group that supports disability, LBGTI, in the disability and that is making sure everything is okay and included and embraced people with the lived experience of people with disability, gay, lesbian, bisexual, transgender, and now -people under the umbrella people, yeah, in the rainbow umbrella.
MS EASTMAN: So it's been pretty important to you, as coming out as a gay man, to have a community in Rainbow Rights that understands who you are as a person with disability but also as a person who identifies as part of the LGBTIQA + community?
MR O'DONNELL: Correct.
MS EASTMAN: And you have participated in Rainbow Rights as much as you can, but you can only mostly go to the meetings on Zoom on the computer.
MR O'DONNELL: Yes.
MS EASTMAN: And one of the reasons is that you live in a small town in Victoria, and can I ask you now some questions about growing up and the town?
MR O'DONNELL: Yes.
MS EASTMAN: So we are not going to mention the town by its name. I will call it a small town; is that okay?
MR O'DONNELL: Yes.
MS EASTMAN: Alright. So, I want to ask you about growing up. You have lived in the same small town in Victoria your whole life.
MR O'DONNELL: Correct.
MS EASTMAN: And if we are thinking about where the town might be in relation to Melbourne, if you were taking the train, that might be a four- or five-hour train ride away?
MR O'DONNELL: Correct. And this means some I don't want to jump too ahead. This means that it's a long far way away and it's very much a big train ride and it is most it is actually the biggest in Victoria and the oldest bus route in Victoria.
MS EASTMAN: Yes. So bus or train takes a pretty long time to get to Melbourne.
MR O'DONNELL: Correct.
MS EASTMAN: Is it one of those towns where word gets around pretty quickly?
MR O'DONNELL: Yes.
MS EASTMAN: And so if you've done something in town word will get back to your parents?
MR O'DONNELL: Yes.
MS EASTMAN: And in terms of your family, can I ask you some questions about your family?
MR O'DONNELL: Yes.
MS EASTMAN: So, you have one sister.
MR O'DONNELL: Yes.
MS EASTMAN: And I think you think your sister's your parents’ golden child; is that right?
MR O'DONNELL: Correct.
MS EASTMAN: And you felt that you have had to drag along.
MR O'DONNELL: Yes.
MS EASTMAN: And you have you still have your parents; is that right? You have got mum and dad?
MR O'DONNELL: I do. But my relationship with my mum and dad is very strained and I don't really have a good relationship with mum and dad. I would love to but
MS EASTMAN: That's something that makes you really sad?
MR O'DONNELL: It does. It does.
MS EASTMAN: And one of the reasons you feel really sad is that you think maybe mum and dad aren't proud of you because of who you are as a gay man.
MR O'DONNELL: Yes.
MS EASTMAN: Also your disability.
MR O'DONNELL: Yes. Correct.
MS EASTMAN: So, when you were growing up with mum and dad you were you went to school and you went to a special development school and we are not going to use the name, is that okay?
MR O'DONNELL: Yes.
MS EASTMAN: And you went there three days a week.
MR O'DONNELL: Yes.
MS EASTMAN: And then you also went to the regular school, the mainstream school, and you went two days a week.
MR O'DONNELL: Correct.
MS EASTMAN: So school was good?
MR O'DONNELL: School was awesome. Like the normal school was absolutely awesome because I get to hang out with my friends and the STS was okay because they did I did I did have some good times there as well, but I did have but when I where are we?
MS EASTMAN: I'm just on so, as I said, John, you can just remember the answers, you don't have to read off the statement.
MR O'DONNELL: Yes.
MS EASTMAN: So we can slow down a little bit. Take a deep breath. Collect our thoughts. So you went to we're talking about the school.
MR O'DONNELL: Yes.
MS EASTMAN: Three days at SDS.
MR O'DONNELL: Yes.
MS EASTMAN: Two days at mainstream.
MR O'DONNELL: Yes.
MS EASTMAN: Mainstream was pretty good because you got to see all your mates?
MR O'DONNELL: Yes.
MS EASTMAN: And SDS was okay but different; is that right?
MR O'DONNELL: Yes. Correct.
MS EASTMAN: One thing you were able to do living in a country town in Victoria is that sometimes your parents had some family respite, and you would go and stay with a family at a farm.
MR O'DONNELL: Yes.
MS EASTMAN: And you loved being on the farm.
MR O'DONNELL: Yes.
MS EASTMAN: And on the farm the family had four boys and they sort of became like your brothers; is that right?
MR O'DONNELL: Yes.
MS EASTMAN: So now I'm going to start to ask you questions about after school; is that okay?
MR O'DONNELL: Yes.
MS EASTMAN: So when you were finishing school, and you got to year 12, you got to do some work experience at the local grocer store; is that right?
MR O'DONNELL: Correct.
MS EASTMAN: But you don't remember when you were at school anyone saying to you, "What do you want to be or where do you want to go?”
MR O'DONNELL: They didn't want they when they what they thought that we would do is be all be in the sheltered workshop and there was no plan of that at all.
MS EASTMAN: Yes. And you had been the school captain at the SDS?
MR O'DONNELL: Correct. Yes.
MS EASTMAN: And that was (indistinct) school captain?
MR O'DONNELL: And I was first of its kind ever and I'm pretty proud of that, that I was the first ever school captain. So yeah.
MS EASTMAN: So when you were growing up and going to school did you feel that mum and dad made pretty much all the decisions about your life?
MR O'DONNELL: Yes.
MS EASTMAN: And did your mum and dad give you some choices in terms of the things that you wanted to do and the places you wanted to go?
MR O'DONNELL: Not really because they mostly had the plan for me and where I want to live and things I wanted to do.
MS EASTMAN: And when you had finished school you really felt that you would like to go and live in Melbourne; is that right?
MR O'DONNELL: Correct.
MS EASTMAN: And you have always got this pull towards Melbourne as a place that you thought would be good for you?
MR O'DONNELL: Yes.
MS EASTMAN: And you feel happier when you actually go to Melbourne.
MR O'DONNELL: Yes.
MS EASTMAN: And you feel living and staying in the town is not really where you want to be in your life?
MR O'DONNELL: Yes.
MS EASTMAN: And this, moving to Melbourne, has been a bit of tension between mum and dad; is that right?
MR O'DONNELL: Correct.
MS EASTMAN: Okay. So I want to then ask you about the State Trustee. Can I ask you some questions about that?
MR O'DONNELL: Yes.
MS EASTMAN: And do you know what the State Trustee is?
MR O'DONNELL: The State Trustees are the people that look after your finances and they look after they instead of having mum and dad, you have them, they control everything on what you spend and what you have and things like that.
MS EASTMAN: So we are going to I will ask you some questions about the State Trustee and how the State Trustee has come into your life. But before I do that, I just want to ask you about when you were 21 years old.
MR O'DONNELL: Yes.
MS EASTMAN: And you moved away from mum and dad.
MR O'DONNELL: Yes.
MS EASTMAN: And your parents decided that they thought it would be good for you to live in a group home.
MR O'DONNELL: Yes.
MS EASTMAN: And the group home is in the same town?
MR O'DONNELL: Correct.
MS EASTMAN: And you moved into the group home with another person, a lady.
MR O'DONNELL: Yes.
MS EASTMAN: And she has a disability, and she also lives there.
MR O'DONNELL: Correct.
MS EASTMAN: You didn't have any choice about where you lived or who you lived with; is that right?
MR O'DONNELL: Correct.
MS EASTMAN: Now, for you, the other lady who lived in the group home, you had nothing in common with her.
MR O'DONNELL: Yes.
MS EASTMAN: And you were not compatible.
MR O'DONNELL: Yes.
MS EASTMAN: And you fought like cats and dogs.
MR O'DONNELL: Correct.
MS EASTMAN: She eventually moved out; is that right?
MR O'DONNELL: Yes.
MS EASTMAN: And you now live in the home by yourself; is that right?
MR O'DONNELL: Correct.
MS EASTMAN: And at the home have you got support workers who come and support you in this the house?
MR O'DONNELL: I have them morning and evenings, seven days a week. They even when I don't want them there even when I don't want them there they are there always.
MS EASTMAN: So can you say to your support workers whether you want them to come or not?
MR O'DONNELL: Sometimes, yes. But they always just they show up or whenever they want, they do pretty much whatever the support coordinator wants them to do.
MS EASTMAN: And when you came out as a gay man you were about 23 years old?
MR O'DONNELL: Correct.
MS EASTMAN: And you think your parents didn't like this?
MR O'DONNELL: Yes.
MS EASTMAN: And you think your parents wanted to stop you seeing other people and, in particular, stop you seeing other gay men?
MR O'DONNELL: Correct.
MS EASTMAN: And, for you, you think this might be the reason why your parents then went to the Victorian Civil and Administrative Tribunal. So you have heard of that, VCAT?
MR O'DONNELL: Yes.
MS EASTMAN: You think that your parents might have gone to VCAT to get some orders that they become your parent your parents become your guardian and administrators; is that right?
MR O'DONNELL: Correct.
MS EASTMAN: So in 2016 VCAT did make some orders appointing your parents as your limited guardians and administrators?
MR O'DONNELL: Correct.
MS EASTMAN: Do you remember whether you went to the hearing?
MR O'DONNELL: I was there but I wasn't not it wasn't not explained to me in simple English. It was just done instead.
MS EASTMAN: And but do you remember whether you got to speak at the hearing?
MR O'DONNELL: No, I did not.
MS EASTMAN: And you don't remember anybody explaining what guardianship or administration orders were?
MR O'DONNELL: No.
MS EASTMAN: Or what they would mean in terms of what you could do?
MR O'DONNELL: Yes.
MS EASTMAN: And when the orders were made at the beginning it didn't really have much of a change for you, did it?
MR O'DONNELL: It didn't really make much change.
MS EASTMAN: Because your parents had a lot of you felt your parents had a lot of control over your decisions.
MR O'DONNELL: Correct.
MS EASTMAN: But even after the orders were made you held on to your goal of moving to Melbourne.
MR O'DONNELL: Correct.
MS EASTMAN: And you say mum and dad snuffed that.
MR O'DONNELL: Correct.
MS EASTMAN: And your parents were worried something bad might happen to you in Melbourne; is that right?
MR O'DONNELL: Yes.
MS EASTMAN: And you remember them saying to you, "Look, if you move to Melbourne you will get killed or you will get bashed."
MR O'DONNELL: Yes. Correct.
MS EASTMAN: And this affected your relationship with the parents with your parents because you really wanted to get to Melbourne; is that right?
MR O'DONNELL: Correct.
MS EASTMAN: And sometimes you would get extremely upset.
MR O'DONNELL: Yes.
MS EASTMAN: And you felt that you couldn't make any decisions for yourself and going to Melbourne was really something that you felt you should be able to decide for yourself.
MR O'DONNELL: Yes.
MS EASTMAN: It meant for you part of going to Melbourne for you meant being able to connect with the LGBTIQA + community?
MR O'DONNELL: Yes.
MS EASTMAN: Going to Melbourne meant going to things like music festivals.
MR O'DONNELL: Yes.
MS EASTMAN: And going to Melbourne was a way that you felt you could branch out and be your own person and not have everybody talking about you in the town; is that right?
MR O'DONNELL: Correct.
MS EASTMAN: And sometimes you think that your parents, when they were your guardians and administrator, made decisions that you didn't like, and you didn't have a say.
MR O'DONNELL: Correct.
MS EASTMAN: So you think they forced you to go to literacy and numeracy classes and you didn't want to go to the classes; is that right?
MR O'DONNELL: Yes.
MS EASTMAN: And during this time you had a job.
MR O'DONNELL: I did. I worked in a supermarket and then the supermarket changed hands and it turned really, really bad. Before it changed hands it was, like, a family. I really loved that. I really loved that family feel of the of the the feel of it and when it changed hands it was not the same. It was really bad.
MS EASTMAN: And, John, this has been the place where you had done your work experience when you were in year 12.
MR O'DONNELL: Yes.
MS EASTMAN: And this was a job that you felt that you could do?
MR O'DONNELL: Yes.
MS EASTMAN: And you could make decisions about how did you our job?
MR O'DONNELL: Yes.
MS EASTMAN: And you wanted to do the very best job you could?
MR O'DONNELL: Yes.
MS EASTMAN: Okay. Alright. I'm just going to have a bit of a pause. We take a deep breath. Let me know how you are going.
MR O'DONNELL: Yes.
MS EASTMAN: Alright. In late 2018 you arranged for an application to VCAT to ask for the orders around your parents being guardians administrators to be revoked.
MR O'DONNELL: Correct.
MS EASTMAN: You didn't want your parents to be your guardians and administrators
MR O'DONNELL: Yes.
MS EASTMAN: because you felt they didn't respect your decisions and they were too controlling.
MR O'DONNELL: Yes.
MS EASTMAN: And you also felt your mum and dad being the guardian and administrators was pretty bad having a family relationship with them.
MR O'DONNELL: Correct.
MS EASTMAN: Do you remember the Office of the Public Advocate was asked by VCAT to review your situation?
MR O'DONNELL: Yes.
MS EASTMAN: Were you involved in that review, did someone come and talk to you?
MR O'DONNELL: I did. And they were there at the before the hearing and afterwards and they were actually at the hearing as well.
MS EASTMAN: Yes. Just so people know, you have got I know you love your cat Martino but you also like dogs.
MR O'DONNELL: I do.
MS EASTMAN: So you have got
MR O'DONNELL: I think he's coming back.
MS EASTMAN: A little fellow who has been sitting with you. He's coming back. Alright we will make sure he settles down. So when the Office of the Public Advocate did a review of your situation, you remember The Public Advocate saying there was no reason for to you be under guardianship.
MR O'DONNELL: Correct.
MS EASTMAN: And The Public Advocate said John can make his own decisions.
MR O'DONNELL: Correct.
MS EASTMAN: Then there was the hearing at VCAT, and you had something called an adjourned hearing and mum and dad were there weren't there and then at another hearing dad was there and it was pretty tense, wasn't it?
MR O'DONNELL: Yes. It was it was actually very much of dad was a absolutely trainwreck when he got really upset. It was really, really he was explosive, and he was really, really it was good for me because it made dad it made dad look really, really bad. It made him shocking look bad and, yeah, I was really happy about that.
MS EASTMAN: Well, but were you not so happy that it was bad for your relationship, but you felt that you could be heard in that VCAT decision, or the hearing and the decision was made that the guardianship orders in relation to you would be revoked.
MR O'DONNELL: Yes.
MS EASTMAN: But in terms of managing your finances, instead of mum and dad doing that, the State Trustee was appointed to manage your finances; do you remember that?
MR O'DONNELL: Yes, I do.
MS EASTMAN: Now, you were not particularly happy that somebody else would be managing your finances.
MR O'DONNELL: Yes.
MS EASTMAN: But you accepted that because you thought that you would still have more control over your money and what you could spend your money on with the State Trustees other than mum and dad?
MR O'DONNELL: But it was beyond a joke.
MS EASTMAN: So it hasn't quite worked out the way
MR O'DONNELL: No, it has not.
MS EASTMAN: Okay. So from 2019 up to today your finances are controlled by the State Trustee.
MR O'DONNELL: Correct.
MS EASTMAN: And what you wanted to talk to the Royal Commission about was how that has impacted on your life.
MR O'DONNELL: It has impacted sorry, guys I'm just yes. So it was affected my life tremendously. It was 35, we are here?
MS EASTMAN: Yes. 35 I'm up to.
MR O'DONNELL: Yes, sorry about that, guys. It was affected my relationship my relationship with my just how I buy things, how I yeah.
MS EASTMAN: So can I raise a few things that you've told us in your statement -
MR O'DONNELL: Yes.
MS EASTMAN: about dealing with the State Trustees.
MR O'DONNELL: Yes.
MS EASTMAN: Well, first of all, you don't like dealing with them at all?
MR O'DONNELL: I don't.
MS EASTMAN: You don't remember having a meeting with anyone from the trustee other than in VCAT.
MR O'DONNELL: They they actually met with people with my team. They did not meet with me at all, and this is shocking.
MS EASTMAN: Yes. So that annoys you a lot.
MR O'DONNELL: Yes.
MS EASTMAN: And if you have contact with the State Trustee it's usually over the phone or by Zoom.
MR O'DONNELL: Correct.
MS EASTMAN: And the State Trustees put you on something called a call management plan. Was this because you think that you were calling them too much?
MR O'DONNELL: Yes. And
MS EASTMAN: And they had to have some rules about when you could call them to ask about some money and to be able to get access to money?
MR O'DONNELL: I agree with what's said before that Uli said and I agreed with what he said because that is how they treat us and that is shocking. So, I'm sorry, but -
MS EASTMAN: It makes you a bit cross?
MR O'DONNELL: Yes.
MS EASTMAN: It makes you very cross, actually, doesn't it? So it's been a bit frustrating when you feel that the people who are controlling your money you can't get in contact with sometimes and you feel like you have been shut out of the decision making?
MR O'DONNELL: Yes.
MS EASTMAN: Is that right?
MR O'DONNELL: Yes. Yes.
MS EASTMAN: And for you this has had an impact because you want to start to change your life to move to Melbourne.
MR O'DONNELL: Yes.
MS EASTMAN: It's still the really big thing in your life.
MR O'DONNELL: Yes.
MS EASTMAN: And you would go down to Melbourne sometimes on the bus or the train to go house hunting?
MR O'DONNELL: Yes.
MS EASTMAN: Or sometimes to go to events.
MR O'DONNELL: Yes.
MS EASTMAN: And you wanted to start to plan to be able to have a house in Melbourne.
MR O'DONNELL: Yes.
MS EASTMAN: So you've applied for many houses so I'm jumping now to number 79 sorry, number 49.
MR O'DONNELL: Yes. Yes.
MS EASTMAN: So have you looked at around 80 private rental properties all over Melbourne.
MR O'DONNELL: Yes.
MS EASTMAN: So Geelong and you have been knocked back.
MR O'DONNELL: Every time.
MS EASTMAN: And you feel that as soon as you say to a landlord that you are under administration and the State Trustees
MR O'DONNELL: They don't
MS EASTMAN: that might be why you are getting knocked back?
MR O'DONNELL: Because because as soon as the landlord sees that was State Trustee, they don't want to know. No. That the money is actually always promised, and it will be there. They just don't want to know, and this is really, really wrong.
MS EASTMAN: Okay. But in September this year someone from the State Trustee said you would be able to rent a property if you could find one for less than $250 a week.
MR O'DONNELL: Yes.
MS EASTMAN: And then that was changed a little bit later to $300 a week.
MR O'DONNELL: Correct.
MS EASTMAN: And you feel like even getting to that point where you could get approval from the trustee to spend money on rent -
MR O'DONNELL: Yes.
MS EASTMAN: has taken you years -
MR O'DONNELL: Yes.
MS EASTMAN: but now you are worried that you are not going to find somewhere where the rent is $300 a week.
MR O'DONNELL: Yes.
MS EASTMAN: And, John, does this make you feel like you are going around and around in circles?
MR O'DONNELL: Yes. And it's taking too long. Like especially when I was wanting to be there by Christmas. That is not going to happen because I'm still travelling. I'm still doing what I'm doing in 2019 and this is totally bad when I don't want to be there anymore.
MS EASTMAN: Yes. Part of the frustration for you is not having any choice about how you spend your money?
MR O'DONNELL: Yes.
MS EASTMAN: And I think have you told the Royal Commissioners that you live on a pittance.
MR O'DONNELL: Correct.
MS EASTMAN: And you feel that for any money that you want to spend you just have to get permission all of the time; is that right?
MR O'DONNELL: Yes.
MS EASTMAN: So the state trustee pays your bills. Like your rent and electricity?
MR O'DONNELL: Correct.
MS EASTMAN: But when it comes to food and spending money you feel you have to get approval.
MR O'DONNELL: Yes. Correct.
MS EASTMAN: So things like using a mobile phone and having a mobile phone, those are things you have to get permission from?
MR O'DONNELL: Yes.
MS EASTMAN: And things like getting phone credits, you've had to get assistance from an advocacy group, All Abilities Advocacy; is that right?
MR O'DONNELL: And that's my work, correct.
MS EASTMAN: Yes. At work?
MR O'DONNELL: Yes.
MS EASTMAN: And also getting a laptop. You've had to get that from All Abilities Advocacy because you remember the State Trustee refused the funds to buy a new laptop.
MR O'DONNELL: Correct.
MS EASTMAN: Even decisions for you about the clothes that you want to buy or travelling.
MR O'DONNELL: Correct.
MS EASTMAN: And the thing that made you really upset this year was Valentine's Day?
MR O'DONNELL: Yes.
MS EASTMAN: And you wanted to be able to buy some flowers for your boyfriend.
MR O'DONNELL: Yes.
MS EASTMAN: And the flowers cost you $80.
MR O'DONNELL: Correct.
MS EASTMAN: But you felt that you were going to be in trouble for spending the money on flowers.
MR O'DONNELL: Correct.
MS EASTMAN: You feel like you were punished for spending the money.
MR O'DONNELL: I yes.
MS EASTMAN: So I'm up to number 64. So the decisions that have been made by the State Trustee effect you every day in so many ways.
MR O'DONNELL: Yes.
MS EASTMAN: And it impacts on your wellbeing.
MR O'DONNELL: Yes.
MS EASTMAN: Your access to day to day needs and your relationships.
MR O'DONNELL: Yes.
MS EASTMAN: So a previous boyfriend had to pay for everything.
MR O'DONNELL: Yes.
MS EASTMAN: And you don't like that sense that you can't be independent.
MR O'DONNELL: Correct.
MS EASTMAN: Okay. Now, I want to ask you about how you have how you are learning skills to do budgets.
MR O'DONNELL: Yes.
MS EASTMAN: And to understand spending and how you develop those decision making skills in how to spend money.
MR O'DONNELL: Yes.
MS EASTMAN: So this is something that, am I right in understanding, that you haven't had much help with over your life?
MR O'DONNELL: No, I have not.
MS EASTMAN: Because mum and dad made those decisions for you?
MR O'DONNELL: Yes.
MS EASTMAN: And when you have lived in the group home the support workers have made decisions for you.
MR O'DONNELL: Yes.
MS EASTMAN: And do you feel in your life that there has been anyone who has helped you learn to make decisions in the sense of what you need to think about to make decisions or how you work through problems?
MR O'DONNELL: I've just recently engaged with a financial counsellor.
MS EASTMAN: What can you tell us about the financial counsellor?
MR O'DONNELL: I'm learning things about how to budget, and how to do how to put a budget together and that's really awesome that I'm actually really learning, and it is actually becoming making sense now.
MS EASTMAN: Can you tell me a little bit about how you go about making a budget and what decisions you have to make when it comes to doing a budget?
MR O'DONNELL: If I really need it, if I do need it or if I don't need it, if it is a wish list, or if it's just something that I can go without.
MS EASTMAN: Does that part of making the budget make you have to think about, "I can't just sort of spend my money on absolutely everything.”
MR O'DONNELL: Correct.
MS EASTMAN: "And I can't just, if I see something, go, I think I might like that.”
MR O'DONNELL: Yes.
MS EASTMAN: But what you have got to do is sort of work through, "Is this something that I need?"
MR O'DONNELL: Need. Yes.
MS EASTMAN: "But if it's something I really want then maybe I have to plan about how I might buy that thing"; is that right?
MR O'DONNELL: Yes.
MS EASTMAN: Are these sort of new things you really had to learn?
MR O'DONNELL: Sorry. I just want to sorry I'm just
MS EASTMAN: So I'm around about 65, and 66, 67.
MR O'DONNELL: Just yes. I'm with you now.
MS EASTMAN: I'm just wanting to ask you why it is really, really important, as you say in the statement, to build the financial
MR O'DONNELL: So it's really important so they people with before they get to State Trustees, they need to be put on the financial counselling scheme to see if they can be independent before they get on to State Trustees, before they get taken away their independence, they need to be made sure that it is a possibility that they can budget before they take that away that thing away from them.
MS EASTMAN: Yes. And so is it your hope that if you can practice these skills and make them work on a day to day basis that maybe you will get to a point where you don't have to have the State Trustees making the decisions about your money?
MR O'DONNELL: Correct.
MS EASTMAN: And to get to that point you have got to prove that you can do the budgeting; is that right?
MR O'DONNELL: Yes. Correct.
MS EASTMAN: And so is anyone other than the financial counsellor, is anyone helping you in terms of how you are making the decisions about your money?
MR O'DONNELL: My friend, Dennis, and also my friend and also myself, but also [Redacted] has actually been really good about it. He's been – [Redacted] has been a really superb about this and I'm really, really thankful. I know I have said bad things about State Trustee, but, God, me and [Redacted] now, we are rock solid. And he should be applauded by this.
MS EASTMAN: So [Redacted] is part of the State Trustees?
MR O'DONNELL: Yes.
MS EASTMAN: So you have got a bit of a better relationship now with the State Trustees?
MR O'DONNELL: Yes. He's absolutely amazing. I'm just
MS EASTMAN: Why is he so amazing?
MR O'DONNELL: Because we had obviously we have had after from now from VCAT, he was he turned he turned the corner and now he's much more better and I'm he's amazing. I consider him being awesome. So yeah.
MS EASTMAN: So I want to turn to the last part of your statement, and if you have got your statement with you and you want to follow me, I've got on page 11 -
MR O'DONNELL: Yes.
MS EASTMAN: just above number 68, you have got Recommendations.
MR O'DONNELL: Yes.
MS EASTMAN: And when you talk to the Royal Commission you said you want us to give some recommendations that you would like the Commissioners to think about.
MR O'DONNELL: Yes.
MS EASTMAN: Okay. So can I read some of these recommendations?
MR O'DONNELL: Yes.
MS EASTMAN: And if you want to add any extra comments let me know.
MR O'DONNELL: Yes.
MS EASTMAN: So these recommendations come because you have lived so much of your life with other people making decisions for you and without any say in those decisions.
MR O'DONNELL: Correct. Yes.
MS EASTMAN: And you would love the opportunity to be more independent and make your own decisions, both big and small.
MR O'DONNELL: Yes.
MS EASTMAN: You understand sometimes there is a role for administrators like the State Trustees in the lives of people with disability.
MR O'DONNELL: Yes.
MS EASTMAN: But you think sometimes we need to be given a chance to make our own choices instead of taking away our independence straightaway.
MR O'DONNELL: Yes.
MS EASTMAN: You are 32 years old, and you have always had others making decisions about your life for you -
MR O'DONNELL: Yes.
MS EASTMAN: under guardianship or administration -
MR O'DONNELL: Yes.
MS EASTMAN: and you feel stuck in a hole and trapped, that you just can't get out of.
MR O'DONNELL: Yes.
MS EASTMAN: You want to be like other people your age who have full control over their lives.
MR O'DONNELL: Yes.
MS EASTMAN: But you say you have a system that, in your opinion, is shit.
MR O'DONNELL: Yes.
MS EASTMAN: It is meant to be looking after you and your interests, but it actually does the complete opposite.
MR O'DONNELL: Correct.
MS EASTMAN: So the recommendations you made are on the basis of those views.
MR O'DONNELL: Yes.
MS EASTMAN: The first recommendation is about advocacy skills and support for family members.
MR O'DONNELL: Yes.
MS EASTMAN: You've had to learn to be an advocate and the Rainbow Rights and the work that you do with the advocacy group
MR O'DONNELL: Correct.
MS EASTMAN: All Abilities, have taught you the skills to help you understand what kind of supports that you need around you -
MR O'DONNELL: Yes.
MS EASTMAN: and the support to help you make your own decisions -
MR O'DONNELL: Yes.
MS EASTMAN: and it's really important to have people who are around you on your side, like your support people; is that right?
MR O'DONNELL: Yes. And I have amazing support team around me you know who you all are and you guys rock. And I'm going to miss you guys. I'm going to miss you because you guys this experience has really changed me. It's made me into a completely different person that I am today. So I am really thankful for this experience and I just so I thank you for that. Thanks.
MS EASTMAN: But, John, you also sort of say one thing as the person living with disability to have advocacy skills and support, but you also think that the family members could do with some support.
MR O'DONNELL: Yes.
MS EASTMAN: So they can be supported to be patient, tolerant, non judgmental and understanding.
MR O'DONNELL: Yes.
MS EASTMAN: And to be supported that if their family member might have a different way of wanting to live or identify as LGBTI that families might need support in understanding the family members.
MR O'DONNELL: Yes. Yes.
MS EASTMAN: You have been fighting so long to be more independent and you would like the State Trustee to provide you with some practical help along the way.
MR O'DONNELL: Yes.
MS EASTMAN: One of your recommendations is that perhaps organisations like the State Trustee or having a new organisation separate from
MR O'DONNELL: State Trustees.
MS EASTMAN: independent from the State Trustee, so both of them could work with people to help make decisions for them.
MR O'DONNELL: Correct.
MS EASTMAN: And when I say, "decisions for them", I mean your decisions, but they are helping you support to make those decisions; is that right?
MR O'DONNELL: Yes. Yes.
MS EASTMAN: So that advocacy support you would like to be separate from the State Trustees.
MR O'DONNELL: Yes.
MS EASTMAN: But you also, at the moment, acknowledge that the trustees have got their particular duties and obligations as well?
MR O'DONNELL: They do.
MS EASTMAN: Okay. So this is part of skill building -
MR O'DONNELL: Yes.
MS EASTMAN: and you have made some recommendations for building skills when you are under administration orders; is that right?
MR O'DONNELL: Correct.
MS EASTMAN: Because gaining skills is the only way that people have a chance of coming off the orders.
MR O'DONNELL: Yes.
MS EASTMAN: So for you skill building is a pathway out of the orders; is that right?
MR O'DONNELL: Yes.
MS EASTMAN: You also make some recommendations about the way the State Trustees treat people under orders.
MR O'DONNELL: Yes.
MS EASTMAN: So the State Trustees charge you for their services by taking a percentage of Centrelink payments.
MR O'DONNELL: Yes. And like why are we because we get paid for a service where the service is completely I'm going to use shit, sorry, French, but and it is we don't we when we get treated like not like kids, it's not good, it is not good.
MS EASTMAN: So a bit more customer service.
MR O'DONNELL: A bit more customer service. A bit of respect. They need to take a leaf out of [Redacted] book.
MS EASTMAN: Okay. Now, the next thing you wanted to make some recommendations is about VCAT decisions.
MR O'DONNELL: Yes.
MS EASTMAN: And you don't remember being given any reasons why the VCAT made the decisions about guardianship or administration?
MR O'DONNELL: Correct.
MS EASTMAN: You think it would be good to get copies of the reasons in easy read format?
MR O'DONNELL: Yes.
MS EASTMAN: Why is that important to know the reasons that VCAT made the decision?
MR O'DONNELL: So the easy read format is actually a picture format, and everything should be in it. So it's like pictures that they actually have, and they also have text as well. And that's really important to have that experience as well.
MS EASTMAN: So, John, I'm up to the very last part of your statement.
MR O'DONNELL: Yes.
MS EASTMAN: Would you mind if I read that out for you?
MR O'DONNELL: Yes.
MS EASTMAN: But if you do you want to read it? Do you want to have a go?
MR O'DONNELL: No, can you read it?
MS EASTMAN: Okay. Why don't you read the last statement. Give me a break here for a few minutes. Okay. Go ahead.
MR O'DONNELL: No, can you read it?
MS EASTMAN: I will read it.
MR O'DONNELL: Yes. Sorry.
MS EASTMAN: My message for other people.
MR O'DONNELL: You can read it with me.
MS EASTMAN: We will do it together.
MR O'DONNELL: My message for other people is that it is hope that you can get out of State Trustees, but you have got to work, work, work because you have got it bloody hard, but you are going to get out of it. You are going to get out of there, just have to keep on working and knock the bastards out of the pool.
MS EASTMAN: Okay. I will read the paragraph you have got in here:
“I would like to share this message with other people with disability. Once you get put on administration orders it can be very hard to come off them. I would just like to tell people that getting out of the system is hard, but it is achievable.”
MR O'DONNELL: Yes.
MS EASTMAN:
“You have to fight tooth and nail.”
MR O'DONNELL: You do.
MS EASTMAN:
“But it is achievable to just have the fight, fight, fight to get out. But you can do it. Just keep on fighting and don't give up.”
MR O'DONNELL: Exactly.
MS EASTMAN: John, thank you very much -
MR O'DONNELL: Thank you.
MS EASTMAN: for telling us just a little bit about your life today but also being very open and very generous in sharing your experiences with the Royal Commission. We are very happy that you've been able to come and tell your story. The Commissioners might have a few questions for you.
MR O'DONNELL: Yes.
MS EASTMAN: Thank you, Chair.
CHAIR: John, thank you very much. If it's okay with you I will ask my colleagues first if they have any questions for you. And I will start with Commissioner Ryan. Do you have any questions for John?
COMMISSIONER RYAN: No, I don't. I do want to thank John for coming to the Royal Commission, but your story was very clear, and I understood it all. So thank you.
MR O'DONNELL: No worries.
CHAIR: Commissioner McEwin?
COMMISSIONER McEWIN: Thank you, Chair. Thank you, John. I'm very grateful and your evidence has been very important to our work. I have two questions.
MR O'DONNELL: Yes.
COMMISSIONER McEWIN: The first one is: when were you talking about growing up and I acknowledge what you have told us was very distressing can I just put perhaps your relationship with your parents to the side and I want you to tell me what would have helped you develop skills more growing up?
MR O'DONNELL: It probably would have been better if we probably did get a bit of, like, financial counselling, probably when back in school days. That probably would have been probably better. Back in SDS, they could have done that. They should have done that but, yeah, not doing it now, they should have done it back then.
COMMISSIONER McEWIN: Thank you. And you've answered my second question which was precisely about getting financial understanding and skills that you mentioned earlier. It is making sense to you. So it is fair to say that if that had happened when were you younger it would have made a lot more sense?
MR O'DONNELL: Yes. And we wouldn't be in this predicament now.
COMMISSIONER McEWIN: Thank you. And thank you again, John.
MR O'DONNELL: Thanks, Commissioner.
CHAIR: John, just to follow up on Commissioner McEwin's question, you have now got the support of a financial counsellor, as I understand it, who pays for that financial counsellor?
MR O'DONNELL: I think that is the government.
CHAIR: Does that come out of NDIS perhaps?
MR O'DONNELL: I think it is. Because it's Bethany. So I think it is that.
CHAIR: Yes. And I think this follows from your answers to Commissioner McEwin, but if you had had that financial counselling support earlier on do you think you would have been able to manage your own financial affairs much earlier?
MR O'DONNELL: Yes.
CHAIR: How long have you had the financial counselling support? I think it's only recent, isn't it?
MR O'DONNELL: Just recently. About three or four months. And we've had we've just had just a week ago we've just had a VCAT. So it's been very full-on time. But, yes, that was good.
CHAIR: Right. Okay. And the only other question I have got and perhaps you have mentioned this, and I missed it your current living arrangements, I don't want to know, obviously, the address, but are you living in rented accommodation at the moment?
MR O'DONNELL: I'm living in supported accommodation but independent. Independent. Independent.
CHAIR: I see. Yes. Okay. So you are living by yourself?
MR O'DONNELL: Yes.
CHAIR: Right. Okay. Thank you very much. Well, I just want to echo what my colleagues have said and thank you very much for your evidence and for telling us of your experiences. They are, indeed, very helpful to our work and you've given us a very good understanding of what you have experienced during your time under administration through the State Trustees. So thank you very much indeed.
MR O'DONNELL: No worries. Thank you.
MS EASTMAN: Thank you, Chair. And a big thank you to Mr O'Donnell for coming to the Royal Commission and talking to us today. And for everybody who has supported you to get your statement done and to come here. So thank you for that. Chair, could you receive into evidence the statement and accompanying documents for Mr O'Donnell and mark them 30.073 to 30.076.
CHAIR: Yes. Mr O'Donnell's statement and the supporting documentation will be admitted into evidence and given the markings Ms Eastman has indicated.
MS EASTMAN: Thank you, Chair. Now, our next witness is Ms Anderson, and Chair and Commissioners, with your indulgence I just need about 10 minutes to check a few things before we start. So I know it is close to lunchtime, but if we could have 10 minutes and then complete Ms Anderson's evidence before we break for lunch.
CHAIR: Yes. Well, we will do that. It's now nearly 12.25 Sydney time. So we will resume at 12.35.
MS EASTMAN: Thank you.
CHAIR: Thank you. Thank you again, Mr O'Donnell.
MR O'DONNELL: No worries.
<THE WITNESS WITHDREW
<ADJOURNED 12.24 PM
<RESUMED 12.37 PM
CHAIR: Yes, Ms Eastman
MS EASTMAN: Thank you, Chair. Our next witness is Naomi Anderson. And Ms Anderson appeared at Public hearing 4, a number of years ago now, so welcome back. I understand you are taking an affirmation.
MS ANDERSON: Correct.
<NAOMI ANDERSON, AFFIRMED
CHAIR: Ms Anderson, thank you very much for coming to the Royal Commission to give evidence. Thank you also for the statement which you have provided, which we have all had the opportunity to read, if you would be good enough to follow the instructions of the associate, who is located to your right, she will administer the oath. Is it the oath or the affirmation? Affirmation, please. 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 you shall give will be the truth, the whole truth and nothing but the truth?
MS ANDERSON: Yes, I do.
CHAIR: Thank you very much, Ms Anderson. Ms Eastman will now ask you some questions.
<EXAMINATION BY MS EASTMAN SC
MS EASTMAN: Thank you. So just to confirm you Naomi Anderson?
MS ANDERSON: Yes, I am.
MS EASTMAN: And you are the legal practice manager at Villamanta Disability Rights Legal Service.
MS ANDERSON: Correct.
MS EASTMAN: If I can call it Villamanta for short. And you prepared a statement for the Royal Commission dated 16 November?
MS ANDERSON: Yes, I did.
MS EASTMAN: And are its contents true and correct?
MS ANDERSON: Yes, they are.
MS EASTMAN: I assume there is no amendments or any changes you wish to make?
MS ANDERSON: There is some further information that has come to my attention since, but my opinion doesn't change.
MS EASTMAN: All right. Is that something you want to deal with now or can we deal with that in due course?
MS ANDERSON: In due course.
MS EASTMAN: Okay. Last time we met you was in December 2019. And so for people who are not familiar with the work of Villamanta, can we start by talking about the work Villamanta does and its particular broader services and then turn to the work that you do in the area of guardianship and administration.
MS ANDERSON: Yes. We are a community legal centre, and we work on disability related justice issues. There is a couple of streams of that and some of that comes under the National Disability Advocacy Program.
MS EASTMAN: Can I ask you to just slow down a little bit.
MS ANDERSON: Sure. But also National Disability Insurance Scheme appeals and Royal Commission work. Under the National Disability Advocacy Program one of our priority areas is guardianship and administration. So we assist people who have had an application made against them for a guardianship or administration order by attending VCAT with them.
MS EASTMAN: So your role is to oversee the conduct of all legal files and review all of the legal inquiries you receive. Can we understand that Villamanta, like many community legal centres, is not just in the day to day business of advice or appearing in courts but you also have the opportunity to look at the way in which the law applies to your client and client cohorts and that you also have some expertise in the policy areas as well; is that right?
MS ANDERSON: Yes, that's correct. Over time we have seen trends and we have seen things that happen over and over again to different clients as we can start to notice
MS EASTMAN: Sorry, slow down a bit.
MS ANDERSON: Sorry, the echo is a little disconcerting. We notice trends that occur, things that happen over and over again, maybe with a particular cohort, maybe with a particular process and so we start to look at why that is, how that works and then we contribute to policy and law reform.
MS EASTMAN: And for people living with disability, often they are described as a cohort of vulnerable people or invisible people. In terms of the services that the legal centre provides, what can you tell us about some of these vulnerable or invisible people?
MS ANDERSON: As you have seen this morning, they don't need to be vulnerable or invisible. But more that they are made vulnerable to systems and processes that they don't even understand are at play, that they are invisible in these processes and systems, they may not know, as we have heard this morning, that applications have been made about them, that statements have been made, reports completed, hearings held. So the vulnerability and the invisibility is not about something intrinsic to our clients. It's about the way the systems processes and the community operates as if they don't need to have a say, as if they don't need to know.
MS EASTMAN: At a frontline level you are seeing how it's not the inherent aspects of a person that is vulnerable or invisible but, as you say, the systems around. In terms of the way in which the legal system wraps around people with disability, to what extent does that contribute to creating vulnerability or and when we get to the guardianship issue creating invisibility?
MS ANDERSON: Vulnerability can be created when the legal system allows individuals to rely on, be controlled by, be both supported but yet unsupported by and depend on other people in a way that is not of their choice, that they have no control over, and that they don't understand the legal basis for. So they many examples but they may have somebody who says that they are their guardian, but they are not but how many people in the community, much less our clients who have told this since forever, know that being a guardian is something that requires appointment by VCAT. So they can and we have had clients, who had this, be told for many years that, "I'm your guardian and I get to say so", but, in fact, no such guardianship order exists. People around them then assume it to be true, nobody questions it, nobody supports them to look into whether that is the case. Nobody even understands that you would have had to have gone VCAT for that. So their rights are restricted. Their choices are limited, and they are put in the position of vulnerability and isolation quite often because the law is not well known, because the law is not well explained, because they don't have access to people to tell them their rights and because nobody actually assumes somebody may have the same rights as the rest of the community when they, themselves, have a disability. There's just an underlying assumption that if you have a disability it's quite possible you have fewer rights. I'm not sure how but probably.
MS EASTMAN: Often it's the role of community legal centres and particular specialist community legal centres where you become, as the lawyers, the interface between the system and if I say the system here is the laws and the procedures and processes for enforcing those laws. In terms of the legal profession, and the role of legal practitioners, working with and supporting people with disability, you're often on the other side of the matters. What can you tell us, because I know we are going to talk about some case studies, about what other skills that you think lawyers working with people with disability require to avoid being part of the system that makes people with disability vulnerable and invisible?
MS ANDERSON: As you heard Uli say this morning, he attended the hearing in January in VCAT and spoke for himself. As you have all heard, he is very capable of speaking for himself. There is really no need for a lawyer to speak for him. But the legal profession is very good at speaking for people. Speaking as their representative but speaking instead of them. One of the things we as lawyers really need to be careful to do is to step back and let them speak where they can because decision makers, judges, lawyers, the community at large, have so many assumptions about the capacity of people with disabilities that they actually need to hear for themselves. As you heard this morning, Uli went along, and he explained for himself and suddenly the decision was different. Suddenly the understanding was different, the perspective was different. But if we as lawyers go in and do all the talking how is anybody ever going to know that? How is anyone ever going to know what John thinks if they speak for him? It's so important that we actually respect that, while we can represent our clients and we can speak for them, it's not always the right thing to do. The right thing to do is to allow them their own voice. They may not say the right legal terms, they may not say the right sections of the legislation or the right legal argument, but that doesn't matter. They will say them, their life, their truth, and we don't hear that enough.
MS EASTMAN: Do you think there is some room for assisting our profession to do better in this area?
MS ANDERSON: Absolutely. Absolutely. Our profession, and I mean our profession not only just as lawyers, but I mean as the court system, and I mean as the entire justice system. There needs to be a better understanding of people with disabilities and not only as participants, people with disabilities who may be lawyers. People with disabilities who may be spectators. They might just want to watch. There might be witnesses. There is just an inherent assumption within the justice system at large that the only reason a person with disability would be there is because they have been convicted of some criminal matter and there needs to be some alternative process. Beyond that, they are largely invisible and yet they are all around us.
MS EASTMAN: I want to talk about guardianship and administration and inherently this is a legal process but what sits underneath this legal process is decisions or assumptions that need to be tested around the concept of capacity. And in the work that you have done with your clients, in the guardianship and administration processes, have you had to think about capacity and to make any assessments of capacity for your clients? And this issue often comes up that the lawyers have got to work out capacity to get instructions or to be able to give advice. So I want to start with this concept of capacity right at the level of how the legal system operates and particularly where lawyers are involved in giving advice and taking instructions. What do you do or what does the approach at Villamanta do to understand capacity?
MS ANDERSON: As you mentioned every lawyer needs to make a determination of capacity. But we need to make that determination on the same basis as we would anybody else. So if somebody else presenting in that manner had not disclosed they have a disability, why would we make a so called capacity test of somebody just because they have disclosed they have a disability? I'm not a doctor, I'm not a psychiatrist, I'm not in a position to know the difference between person A and person B just because I have a label for one and not the other. For all I know, every single person in this room has a disability. It's really not my business. My business is to understand that they know what the problem is that they have come to see me about, that they can identify what they want, that they can clarify to me if I ask a number of different ways what it is that they want. And we go from there. Many, many people in the community don't have a very complex understanding of the law but they can tell you what they want, and we simply operate from that. Now, if there are questions about whether there are other consequences, well, like we would any ore client or any other person, we take it a step at a time.
MS EASTMAN: So I think there is this assumption that the lawyers have got to determine capacity before they can be comfortable in taking instructions.
MS ANDERSON: Capacity for what? Today, tomorrow, half an hour ago.
MS EASTMAN: But is it so this is what I wanted to sort of tease out. Because we are talking about capacity to make certain sorts of decisions or any decisions. So in taking instructions from clients, it's their capacity to give instructions so lawyers can act on those instructions. I suppose the anterior question is: do you even need to have to test the capacity
MS ANDERSON: That includes the capacity of the lawyer to get the instructions. It's a conversation. It's not just
MS EASTMAN: That's what I want to tease out.
MS ANDERSON: it is their capacity, what about them guessing my capacity towns what they are trying to tell me. Maybe I'm the one who has the capacity problem because I don't know now to listen.
MS EASTMAN: Exactly.
MS ANDERSON: Maybe I don't know how to ask the right questions. Maybe I don't know how to answer their context and then I'm deciding that they don't have capacity? It's a matter of can we communicate jointly to the extent that I can understand what it is you want me to help you with and what you would like me and wouldn't like me to do. That's capacity.
MS EASTMAN: Once you get to that stage, and then you are supporting and working with the clients as they go through these systems, you get to sort of see firsthand how our decision makers approach the question of capacity, and this is the next step in terms of thinking about capacity, is the law confers on particular institutions, in this case, VCAT, to make a decision about capacity. At that point what do you see in the way in which the law starts to kick in setting a test of what is or isn't capacity, and also how you actually prove that. As lawyers we default to evidence rather than subjective views. We assume we come with an unconscious bias, or we will not be biased in how those decisions are made. So where at that point where somebody else authorised by law to make that decision has to look at capacity, what do you see for your clients there? Now, I'm asking you this because this is a real flavour that comes through the case studies that you have sheared with us.
MS ANDERSON: What I would start with is that VCAT requires a medical report to be completed and they provide a template for that medical report and that medical report asks yes/no questions about capacity. It doesn't provide any context or any background, and it most commonly is completed by a general practitioner. Now, a general practitioner does not diagnose intellectual disability, does not do any of the work around understanding cognitive functioning. It generally doesn't talk to their client or their patients about what happens in their day-to-day life and who makes their decisions. So we see these forms filled out by GPs who have had a family member come and say, "Can you just fill in this form for whoever?” And ultimately they will tick the box saying, "No capacity." Not because they asked their patient, "How do you make distinctions about this?” But because the family member said, "We need it for VCAT.” Very rarely is that evidence tested at VCAT. As you heard this morning, Uli didn't even know there was a hearing so he could he test that evidence and say, "I'm sorry but this person doesn't know me, and I have some questions for this person. Can we get them on the phone and ask them on what basis do you say I can't make financial decisions? What financial decisions do I have to make? Do you even know my financial status?” Because whose GP does know that? So the evidence that we are starting from generally is of a particular nature, is often gathered by the party who wants the application to succeed. So somebody who already has decided this is where they are headed. GPs in general don't understand what it's about or what it's for. And if you have ever tried to get a form filled in by a GP they want it done as fast as possible and get on to the next patient because it's a nuisance. It's not providing medical treatment to anybody. And it's untested. If you get the GP to VCAT in some form, recently we have done it by telephone, and say, "Okay. Can you talk us through that", quite often they will soften that view and say, "Well, actually, I guess if they had someone to talk to about it", AKA like the rest of us, we all make decisions by talking to people, we all make decisions in the context of the decisions we hear other people making, "Oh, I heard Fred did so and so. I was thinking about maybe I will talk to Fred.” If they saw it in that context of the way everybody makes decisions, could this person be supported to do that? Quite often their answer is, "Sure.” But that's not what that form achieves. And it's not what a person taking that form to VCAT achieves by using it.
MS EASTMAN: You have included in the material accompanying your statement a copy of the application for order appointment of an administrator or guardian and, Commissioners, you will have that form and this is the standard form that has to be completed and, as you said, once the process of an application may be made you are starting on a pathway. The first thing the second thing it says in this form is:
“You need to provide a medical report.”
So the medical report though is not a medical report that confirms the presumption of capacity.
MS ANDERSON: No.
MS EASTMAN: And we start with a presumption of capacity. But invariably a medical report has a complete and I will use the word I have used earlier this week tilt, towards demonstrating deficiency or lack of capacity and, as you say, if that's done by a GP, what's it based on?
MS ANDERSON: A GP, on the whole, will be unaware of any work that is going on in that person's life with regard to capacity building. So a GP, for a person who is on the NDIS, for example, may well have completed the access request form or may not even know about it. But their involvement in what happens after that will be minimal to none because it's an entirely separate part of the person's life. If the person is doing capacity building around, whether it's decision making or whether it's managing finances, whatever, that's very unlikely to be known in any way to the GP. If the people who were doing that work were to fill in the medical report, I believe in 95 per cent of cases their answers will be very different. So to have somebody who is not involved in the areas of the person's life that actually are affected by and informed by decision making makes no sense at all. I don't know what value a GP has in commenting on a person's decision making capacity. But I don't think they know.
MS EASTMAN: Sometimes
CHAIR: Ms Anderson, can I ask this, please: where does this application come from? Is it specified in the regulations?
MS ANDERSON: The application form?
CHAIR: Yes.
MS ANDERSON: Some of the materials in there are but the actual format of it, no. I believe that's a format designed by VCAT and used by VCAT to elicit the relevant information but the way it's presented and the order of questions, for example, and whether or not it states that there is a presumption of capacity, that's not stated anywhere. That's simply how the form is provided by VCAT.
MS EASTMAN: Part of the form, in terms of a medical report, is not just capacity, but also where is your proof that you are a person with disability; is that right?
MS ANDERSON: Correct.
MS EASTMAN: So you need a medical assessment as to whether you have a disability, a medical assessment as to whether you have an inability to make reasoned decisions, and a need for a guardian or administrator.
MS ANDERSON: Correct.
MS EASTMAN: There is nothing in the legislation that requires this to be done exclusively or solely by a medical practitioner, is there?
MS ANDERSON: No. And certainly I would have problems thinking that a medical practitioner could do all of those things. Possibly the first, regularly not the second, and very unlikely the third.
MS EASTMAN: Generally the role of a medical practitioners is to cure disease or illness or to support people in terms of managing their health.
MS ANDERSON: Diagnose and treat and manage health; correct.
MS EASTMAN: When we are thinking about what the implications may be of the appointment of a guardian or administrator, for some with guardianship there may be decisions about health but for the most part an administrator is all about how we spend the money.
MS ANDERSON: Correct.
MS EASTMAN: In terms of how money is spent, that can be something as simple of whether I'm going to get a cappuccino or a long black or it may be fairly significant decisions of large expenditure. We know for most people in the community, buying a house or buying a car, or going on a very expensive holiday are the sorts of really large expenditures, but for the most part people are making decisions about whether they want Foxtel or Stan, whether they will go to the cricket or whether they will go and play tennis, whether they want to buy flowers for a family member, or whether they are going to go for that more expensive loaf of sourdough over a sort of the regular Tip Top white. There are all sorts of decisions that could be made. In your experience how accurate is a medical report in identifying an inability so the whole focus is this deficit inability to make reasoned decisions about whether you buy the sourdough, it might be quite expensive, or you can go regular Tip Top.
MS ANDERSON: No idea. It's not something you discuss with the person whose diagnosing your throat infection.
MS EASTMAN: We have heard today and, again, I'm drawing on your case studies without taking you directly to them is that the assessment of inability on financial decision making seems to be judged by the way people spend their money and on what they spend money rather than how they make the decision to spend the money on this versus that. Is that your I mean, that's a sense I get from the case studies; is that your experience?
MS ANDERSON: Can we maybe back up and talk about how people make decisions about spending money because we are not talking about no context. I would bet that most of the people in this room do not make that many decisions about spending their money on a daily basis. They have money coming in on a regular basis, they have bills they have to pay on a regular basis, they have things set up to pay automatically, debit automatically because it is too hard to make all of those decisions. There's too many of them and who has the energy when a lot of it is the same every single time. I bet you eat the same bread every single time. You are not making multiple financial decisions every time you do anything. You are most likely repeating the same as you do every other day. And the same applies for people with disabilities. So, in fact, the decisions you are making are what is different to that norm? What is my discretionary for the moment? Am I going to have a coffee today? Am I not? What are the things this are actually different? In terms of people with disability doing anything different to the rest of the community, if you are talking about taking less restrictive options, as John was saying, seeing a financial counsellor, setting up a budget, working out what you can and can't afford, once you get sent your pay, which is free, unlike State Trustee, and you get all of your bills paid automatically, as Uli said this morning, you are getting your money every 14 days. So the amount of risk involved in the decisions that you are making is minimal because you have got your discretionary money only. And when it runs out it runs out. Don't the rest of us operate that way? Most of our bills are paid, most of our things are planned, we just have a little bit of spending money and if we overspend it, well, oh well, but it doesn't destroy our entire financial situation.
MS EASTMAN: Is it inherent in terms of an assessment made around managing finances that, built into managing finances, is value laden concepts about protection, not overspending, staying within your means or is it something even deeper than that.
MS ANDERSON: It just seems like we all assume young people are going to make mistakes with their money because they do. Because that's how you learn. These are not catastrophic mistakes. These are just not paying a bill for a while and getting into a bit of trouble and sometimes people who have made those mistakes, as we've heard, turn their lives around and things turn out smoothly. It doesn't have to be the end of everything. But the fact of somebody having a disability and having made a few mistakes, not paying a few bills, somehow means oh, woe is me, the sky is falling we need to run around, and panic and we need to take control away from this person entirely. How does anybody learn from their mistakes if the only response is to take control away from them completely?
MS EASTMAN: This sort of is very much related to concepts in disability around dignity of risk. But you're not ever talking about large risk here, you are just talking about learning from mistakes rather than taking risks and approaching risk with foresight.
MS ANDERSON: If I ran late for an appointment, parked in a two hour parking spot, because I was stressed and in a hurry, didn't think to myself, "This is going to be more than two hours by the time get back to the car and get out", and overstayed by 15 minutes, and then got a parking ticket, that was beyond my discretionary money for the week, and next week said, "I'm sorry I'm not going to be able to afford to go out to lunch because I got a parking ticket last week", nobody would say, "Oh dear, we better get you on an administration order because you can't manage your finances.” It would be accepted that these things happen. We are human. But there seems to be this underlying stigma that, well, if you have a disability that's the reason you made this mistake, not because everybody does, but your mistake is somehow worse. But then as we have heard, people end up on administration orders where they call up and say, "Well, why hasn't my money been put into my account?” Administration error, human error, computer error. So the administrators are allowed to make mistake, and they are empowered to make decisions, but still make mistakes and charge fees, but their clients are not allowed to make mistakes at all. I don't see how that is fair.
MS EASTMAN: Once the decision is made that a person does require an administrator or guardian, from that point, does the onus switch to the person then having to establish or prove that they do have capacity to make decisions into the future and is there an onus on them to bring evidence forward to prove it?
MS ANDERSON: How does anyone prove a negative? I don't have an inability. That's they can't prove that. So, traditionally, the advice has been given that you need to go and get a neuropsych assessment to say that things have changed. Well, I'm sorry, by the very definition of intellectual disability, that neuropsych assessment is going to say exactly the same as it said before because this is not a question of disability. The question is capacity and need. So it's actually the job of the administrator or guardian in that intervening period to support the person to develop those skills as much as is possible and that's the thing that doesn't happen.
MS EASTMAN: I think in some of your case studies have you identified that that is almost impossible if you are a person who doesn't have a bank account and hasn't had the opportunity to learn the skills by trial and error to be able to make mistakes, to really demonstrate that financial capacity.
MS ANDERSON: I would actually suggest they are demonstrating it in a way that is not understood.
MS EASTMAN: How would that be?
MS ANDERSON: Because if you only have $10 a week you are still making decisions about how you will spend that $10 a week. And if you had $10 a week for the last 20 years, I bet you know what's going to tip you over and what you do or don't care about and how much you might want to save for next week. But nobody values those decisions because they are $10. Nobody values those decisions because the person can't articulate them. But if they're watched, I bet you would see that they are there. So even when they are proving their capacity to make decisions within the scope of what they have available to them, it doesn't count because nobody is taking records.
MS EASTMAN: So
CHAIR: Ms Anderson, could we just go back a step because I would really like to understand what you are saying. On one view, you are saying that no administration order should ever be made because everybody has ultimately financial capacity; are you saying that?
MS EASTMAN: Can I interrupt there, Chair, I'm not sure I have asked Ms Anderson that. At this stage
CHAIR: Sorry, you may not have but I have been following Ms Anderson's answers very carefully and I would just like clarification. Ms Anderson, is that what you are saying or are you saying something else?
MS ANDERSON: I think the line is in the wrong place. I think that the threshold of it being absolutely necessary is in the wrong place. I think there are a lot of people who have administration orders made where there is a far less restrictive option available, and it's simply not investigated. I believe there are some people for whom capacity is not going to occur again, if ever, and who need an administration order. But I think the number of them is far lower than we currently see. I think there is a group
CHAIR: Is that because of the terms of the legislation or because VCAT is not doing its job in applying the legislation or is it for some other reason?
MS ANDERSON: A little bit of all of them, I would say. The assumption to begin with that a person with a disability needs an administration order because of their disability is problematic and until we start seeing that is not the case
CHAIR: I'm sorry, but that's not what the Act says.
MS ANDERSON: Correct. Correct.
CHAIR: So VCAT is under the responsibility to apply the relevant provisions of the Act and they are set out fairly clearly. I'm not going to read them. But the job of VCAT is certainly not to make an order because of someone's disability. So, again, I'm trying to understand what it is that you are putting to us. It may be that the legislation is defective, VCAT doesn't do its job properly because it doesn't get the information, or it misinterprets the information. I'm just not clear where we are going.
MS ANDERSON: A person finds themselves in a situation and the two witnesses this morning make it very easy to explain. A person finds themselves in a situation where there is an application made that states they don't have capacity to make those decisions because of their disability and they need an administrator. It is that third part that is the big assumption because it assumes there are no other ways of going about it. What if they had had access to financial counselling? What if they had had access to support? What if they had had somebody help them set up their automatic payments on Centre Pay and check in with a mentor for a while? All of these other options that should have negated the need for an administrator are on the table for anybody, but nobody has tried them. So it's my position that need for an administrator is assumed because people just don't even think of those other options. People don't and who? Who is going to tell these young men that you could see a financial counsellor and avoid all of this when they don't even know an application is coming. State Trustees is then going to be responsible for getting them a financial counsellor because they have a different process. NDIS could potentially provide all of these systems work around them but there is nothing supporting the young person before the application is made from avoiding it in the first place. That's my position. That the work should be done before it gets to VCAT to try whatever else is possible.
MS EASTMAN: Does that mean that VCAT are if it exercises power, should really do so as a last resort?
MS ANDERSON: Absolutely.
MS EASTMAN: And that there should be some mechanism that when the application form is completed, that you have kindly provided us, that there is some checks and balances that options in relation to supported decision making have been tried and exhausted.
MS ANDERSON: If I was a VCAT member needing to make this decision I would want to know more than what is on that form. I would want to know have you tried financial counselling, have you tried financial literacy programs, what other supports are in place for this person, you know, what capacity building are they doing? How do they make other decisions in their lives? How are they making the financial decisions they are making? I would want to know the scope of all of what's in play to know that there is absolutely no other choice. But I don't see how you could understand that from what's on the form and if the person then doesn't know and attend the hearing their perspective is certainly absent from that process.
MS EASTMAN: So where does supported decision making fit into this current regime and, as I said, I'm drawing from the case studies. So I want to ask you about that and I'm conscious of the time and I want to ask you about where guardians and administrators are family members because a lot of what we have been talking about is the last of the last resorts with public guardians and public trustees. So where does supported decision making fit in to the existing framework? Is that something that is regularly raised with when applications are made in your experience with VCAT? Is there a discussion about exhausting supported decision making?
MS ANDERSON: It fits in with difficulty. There will be some people who know what it is and come to VCAT specifically for that and, normally, as you say, has done precisely that. There will be other people who have been told guardianship or administration is the way to go but then the VCAT member will actually ask questions and will lead them towards an understanding that there are alternatives, which may need to be explored, and then there are the vast majority of people for whom their context, their supports and the hearing itself, all of these combined mean that it doesn't come up. If there's nobody in the room how can you how can you look into what other options there are available? If the person doesn't have anybody in their life because this is has not become an issue until now, let's say their parent was an informal supportive decision maker and their parent has suddenly passed away, nobody has thought to develop those relationships so that when the time comes somebody else can step in. There's been no thinking about it. We need, as a community, to be thinking about it before it gets to that point. We shouldn't be waiting until these big decisions need to be made. We need to be making sure that people who need the support to make decisions are developing the supportive mechanisms to do so. So that potentially you don't even need to end up at VCAT because it works on an informal basis in the first place.
MS EASTMAN: That lead me into ask you about families. We are going to hear later this week, probably the reverse, not so much of where parents are the guardians but when parents become older and there may be capacity that's diminishing over time for dementia or other illness, a lot of what we have been talking about, at this stage, has been for parents or siblings to be become guardians or administrators. There is a big issue about if family is in conflict and what happens then but in terms of a family member applying to be a guardian or administrator, the family member may know the person very well and there may have already been supports in families and supported decision making in families. Some families may not have those skills, but many families do. Do you think that there should be any safeguards built in when family members are the applicants for these orders? And I'm reflecting I'm not asking you to comment directly on John's case, but this was an issue, I think, for John was difficult about having family members become his guardians and administrators at a time where he was working out his identity and the way in which he wanted to live his life. His parents might say, "We are protecting you, we are supporting you and this is our best way of doing that.” There may have been some conflict within the family. How does supported decision making fit in and work that out in those circumstances?
MS ANDERSON: It needs to be understood that supportive decision making is about supporting the person to make their own decisions. If a family member is unable to accept the capacity, desirability, right for the person to make their own decisions then they can't be a guardian, a supportive guardian administrator, supportive administrator because that's not what the job is. The job is supporting the person to make the decisions to the best ability that they can. And so when you have a family member who, yes, with all the love, with all the good intention, with all of the passion for their child or sibling, makes an order that is filled with language that is not particularly respectful, then I think hearings need to be conducted in a way that firstly centres the person whose rights are under threat; secondly, allows them to speak to the VCAT member themselves, if they need support they need support, but it's incredibly difficult to put your case if you are with a family member who has always known better than you. And, yes, when I was five my parents knew better than me. That is universal. But the time comes when you start to reduce that, and you become an adult in your own right. But if that hasn't shifted it can be incredibly difficult to assert your rights, your identity, your views in front of people who have always controlled the decisions that you make. I don't see how it's a fair process for somebody whose rights are under threat to have to assert those rights in front of people who have not respected them to date.
MS EASTMAN: So this takes me to the last topic I want to ask you about and it's the applications to VCAT and the position of interested parties and it's a matter that you have set out in some detail, and we thank you very much for doing so in paragraph 27 and following. But what is it about the way in which the Victorian legislation operates that permits interested parties to be involved and what is the consequence of having a person as an interested party as part of the application or part of the way in which any orders my work? Do you want to speak to that?
MS ANDERSON: I think we all understand the concept that there are parties in a legal matter. I sue you, they charge him, they take them, they divorce them. There are parties. We also understand that there may be others, if it's a land zoning issue there may be people not only who live there, but who live adjacent. There may be people who have an interest. But there has to be an actual interest, there has to be an actual right of that person that is affected. The way interested parties works at VCAT, in terms of guardianship and administration, is there is an invitation for the person applying to nominate anyone else who may be an interested party and that could be a spouse, obviously, have an interest. But could be a support worker, could be a family member, it could be anybody really, because it's not that clear who should be coming in here and what the ramifications of it are. Also the person who initially made the application will, by default, become an interested party even though they may be, say, a social worker in a hospital, they are on record for that matter for the rest of the life of the matter. So anyone who is listed as an interested party will continue to receive notifications that hearings are being held which they may then assume means it's an invitation to attend. Also, the informal way in which VCAT holds its hearings means they are more than likely to be able to have a say. Now, where that breaks down, is, for example, yes, open courts are a thing, but let's say two people are getting divorced, they go to court about the divorce, who else might be interested in that? Well, extended family, neighbours, enemies. All sorts of people could be interested. It doesn't mean that they get to turn up to court and weigh in and have a say. Sure, they can turn up and observe, but they don't become parties. They don't get to intervene or to interject. They don't get to have a say in any of it. They just observe. But at VCAT they become somebody who can have a say in the matter where their rights are not affected in any way, shape or form. And it can then mean that the person whose rights are affected is not only finding it difficult to say anything and be heard at all but is actually silenced in their own hearing because of the force of the people and who they are and their history, which is not the point of a guardianship or administration hearing.
MS EASTMAN: So this is where an interested party is a person who, either in a very overt or more subtle way, exercises power within those relationships? That's the risk, is it?
MS ANDERSON: Yes. That the power that they hold over the person is then injected into that hearing and the person whose rights are under threat is no longer able to participate freely and fully in that hearing because that power imbalance is a (indistinct).
MS EASTMAN: Now when we started you said there is one matter that you wanted to comment on along the way. I'm right at the end. So this arose in the context of the case study concerning Frank, which starts at paragraph 17, and one of the issues is a comment that you make in paragraph 21 about Frank not being consulted on the delegation of the authority to the service provider to handle his money, and can I bring to your attention that there is a section in the Disability Act, section 93, that does appear, on its face, to authorise that to be done without consultation. So that section has been brought to your attention, so you're aware of that, was there something that you wanted to say either by way of explaining the context of your comment or even recognising that there may be the power in the Disability Act how that might apply in a practical sense?
MS ANDERSON: So my comment was about when not aware of any mechanism by which State Trustees can delegate the management of an individual's money to the residence in which they live. I have now had it brought it to my attention there is a mechanism by which they can do that. That doesn't change the view that being able to do something doesn't mean you should. Will and preference must prevail and, to my knowledge, the person and the persons we are talking about have not had any input into decisions made by their administrator to delegate the decision making authority around their finances to the residence in which they live.
MS EASTMAN: Thank you. Commissioners, they are the questions that I wanted to ask Ms Anderson. And the Commissioners may have some questions for you. Thank you very much.
CHAIR: Yes. I will ask my colleagues if they have any questions. Commissioner McEwin?
COMMISSIONER McEWIN: Thank you, Chair. Thank you Ms Anderson. My one question is about the convention on the Rights of Persons with Disabilities, as you know, it's part of our terms of reference. What do you think needs to happen or change to the laws and policies in Australia to be consistent with the Convention, in particular, Article 12?
MS ANDERSON: Substitute decision making needs to be something that we don't rely on, that we honestly imagine can be gone. We seem to be stuck in this concept that we must have it and that it just is the way things are. We need to try harder. Listen.
COMMISSIONER McEWIN: Thank you
CHAIR: Commissioner Ryan.
COMMISSIONER RYAN: I don't have any questions, Mr Chairman. Thank you.
CHAIR: Yes. Thank you very much for your evidence and for your statement, Ms Anderson, and for your contribution to the Royal Commission, which we must appreciate. Thank you.
MS EASTMAN: Thank you, Ms Anderson. Can I tender into evidence Ms Anderson's statement and the accompanying documents.
CHAIR: Yes.
MS EASTMAN: And, Chair, could you mark them Exhibit 30.077 to 30.080.
CHAIR: 30.080?
MS EASTMAN: Sorry, I'm a bit tired. 30.080.
<EXHIBIT 30.077 TO 30.080 STATEMENT OF MS NAOMI ANDERSON AND ACCOMPANYING DOCUMENTS
CHAIR: Yes. The statement of Ms Anderson and those accompanying documents will be admitted into evidence and will give the markings so said.
<THE WITNESS WITHDREW
MS EASTMAN: Thank you. Could we adjourn until 20 past 2?
CHAIR: Yes. It is 1.26, we will adjourn until 2.20. Thank you.
<ADJOURNED 1.26 PM
<RESUMED 2.29 PM
CHAIR: Yes, Ms Eastman.
MS EASTMAN: Thank you. Our next witness is Josie Brown, the general manager of State Trustees Victoria. Welcome, Ms Brown. I think you are taking an affirmation.
MS BROWN: Yes.
CHAIR: Ms Brown, thank you for coming to the Royal Commission to give evidence. As I understand it, you are here in place of Mr Velegrinis, whose statement we have received, is that have I understood that correctly?
MS BROWN: That's correct.
CHAIR: Yes. Okay. Thank you. If you would be good enough to follow the instructions of the Associate, who is to your right, she will administer the affirmation to you. Thank you.
ASSOCIATE: Do you solemnly declare and affirm that the evidence you shall give will be the truth, the whole truth and nothing but the truth?
MS BROWN: I do.
CHAIR: Thank you very much, Ms Brown. Now I will ask Ms Eastman to ask you some questions.
<JOSIE BROWN, AFFIRMED
<EXAMINATION BY MS EASTMAN SC
MS EASTMAN: Before I do that, Chair, can I ask you to take an appearance for State Trustees from Mr Cash.
CHAIR: Yes.
MR CASH: If the Royal Commission pleases, my name is Cash and I appear for State Trustees Limited.
CHAIR: Sorry, would you mind repeating that? I just didn't hear that.
MR CASH: Yes. My name is Cash. I appear for State Trustees Limited.
CHAIR: Thank you very much. Yes, Ms Eastman
MS EASTMAN: Ms Brown, you have got a copy of Mr Velegrinis' statement; is that right?
MS BROWN: I do.
MS EASTMAN: And you have read that statement?
MS BROWN: I have.
MS EASTMAN: You are familiar with its contents?
MS BROWN: Yes, I am.
MS EASTMAN: And to the extent there are any matters that arise from his statement, dated 8 November, you are able to address the matters?
MS BROWN: Yes.
MS EASTMAN: And I suppose if you are not you are going to the let me know; is that right?
MS BROWN: Correct. Yes.
MS EASTMAN: And do you know whether there are any corrections or amendments that need to be made to Mr Velegrinis' statement of 8 November?
MS BROWN: There are no corrections.
MS EASTMAN: Have you also provided two statements of 21 November?
MS BROWN: Yes.
MS EASTMAN: And those are two statements that respond to some matters raised by Mr Cartwright and Mr O'Donnell respectively; is that right?
MS BROWN: That's right.
MS EASTMAN: And you have had the opportunity to double check those statements?
MS BROWN: Yes.
MS EASTMAN: And the contents of those statements are correct?
MS BROWN: Correct.
MS EASTMAN: Now, you have been present in the hearing room this morning and you have heard the evidence?
MS BROWN: I have.
MS EASTMAN: And in terms of any personal involvement, in relation to Mr Cartwright or Mr O'Donnell's case, you haven't had any personal involvement?
MS BROWN: No, I haven't.
MS EASTMAN: And to the extent that there are any particular issues raised in their evidence this morning it's not a matter I'm going to ask you to comment on directly. okay?
MS BROWN: Okay.
MS EASTMAN: And to the extent that the State Trustees wish to respond to any matters to assist the Royal Commission, they are set out in the written statement; is that right?
MS BROWN: That's right.
MS EASTMAN: Okay. So I want to start by asking you about the role of the State Trustee and the State Trustee's powers. Can I ask you, in terms of the functions and powers, and if we start with the functions and powers conferred on the chief executive officer of the State Trustees, these are the matters that are set out in Mr Velegrinis' statement at paragraph 1.2; is that right?
MS BROWN: That's right.
MS EASTMAN: So the responsibilities are overseeing the operation and financial performance of State Trustees, developing, communicating and implementing strategies and plans to achieve the key organisational objectives and he also has roles in terms of leadership and driving change for continuous improvement in the services; is that right?
MS BROWN: That's right.
MS EASTMAN: In terms of the statutory functions that are conferred on the State Trustee, are we right in understanding that there is the legislation called the State Trustees State Owned Company Act 1994?
MS BROWN: That's right.
MS EASTMAN: And this sets up the State Trustees as a statutory corporation in Victoria?
MS BROWN: I believe so.
MS EASTMAN: And that legislation also sets out some of the powers and the functions in relation to the State Trustees operating as a particular statutory entity, is that right?
MS BROWN: I believe so, yes.
MS EASTMAN: Okay. And the State Trustees as a public company operates under a constitution and it's governed by a board of directors; is that right?
MS BROWN: Yes, it is.
MS EASTMAN: I want to turn to your particular functions because are we right in understanding that your more at the operational level as the General Manager of Financial Administration?
MS BROWN: Yes, I am.
MS EASTMAN: And that's a role that you have held since 2019?
MS BROWN: Correct.
MS EASTMAN: And you have provided a copy of your CV?
MS BROWN: Yes.
MS EASTMAN: I think Mr Velegrinis has included a copy of your CV in the documents.
MS BROWN: Yes.
MS EASTMAN: Okay. So I want to turn to the work of the State Trustee in relation to acting as an administrator where the as an administrator you are appointed to undertake that role under the Guardianship and Administration Act of Victoria 2019. So that's the main focus. Before I do that, were you here yesterday when
MS BROWN: Yes.
MS EASTMAN: So, you heard me ask the Queensland State Trustee about issues around conflict of interests?
MS BROWN: Yes.
MS EASTMAN: And issues around the State Trustee having a function of assisting people to prepare their wills?
MS BROWN: Yes.
MS EASTMAN: And also being in a position to commencing litigation of a family provision perhaps to challenge the content of that will.
MS BROWN: Yes.
MS EASTMAN: Just so to assist the Royal Commissioners know the situation in Victoria, does the State Trustees have that function of assisting people to prepare wills?
MS BROWN: Yes, we do.
MS EASTMAN: And how does the State Trustee manage any potential conflicts of interest when it may assist some people to prepare wills but may also serve as the administrator in relation to people with disability who are the subject of those orders from VCAT; how do you navigate those conflicts?
MS BROWN: So, our will writing team who meet with clients are in a separate business unit, financial administration unit, which means they have very separate reporting lines. And so, there's a very distinct separation of roles and responsibilities, if you like, and there is no from a system perspective - no ability to access the information that might be provided in a will versus the will writers cannot access the information of financial administration clients that we have in our system.
MS EASTMAN: So, I raised with Mr Zhouand yesterday that while there might be that function and the internal Chinese wall, so to speak, there still might be the perception in the community of a conflict of interest. Is there any policy or any practice within the State Trustees that address that perception and manages that conflict other than just who has information to what?
MS BROWN: So I understand there may be a perception of that. We don't have a published procedural policy that's available to the public about that.
MS EASTMAN: And has there been occasions where the State Trustees have commenced some type of action or litigation in relation to challenging a will on behalf of a person who's subject to administration orders; do you know that? You may not.
MS BROWN: I imagine that there would have been, but I wouldn't be across that.
MS EASTMAN: That's alright. And Mr Cash is here, so if there is anything arising out of questions that I asked you, and in light of the questions I asked Mr Zhouand yesterday that I ask you to respond to, I invite you to do so. So I'm now going to turn to the Victorian law. So the Guardianship and Administration Act 2019 is a relatively new piece of legislation and it's introduced a number of quite significant changes; is that right?
MS BROWN: It has.
MS EASTMAN: The primary object of the Victorian Act is to protect and promote human rights and dignity of people with disability having regard, among other things, to the Convention on the Rights of Persons with Disabilities and then it sets out various other things. In terms of your office, are we right in understanding that the State Trustees are a public authority?
MS BROWN: I'm not quite sure how to answer that question.
MS EASTMAN: I will walk it back. In Victoria you've had the Victorian Charter of Rights -
MS BROWN: Yes.
MS EASTMAN: and responsibilities for a period of time -
MS BROWN: Yes.
MS EASTMAN: that Charter operates in relation to public authorities?
MS BROWN: Yes.
MS EASTMAN: And to act consistently with the human rights set out in the Victorian Charter. So, in that context, is the State Trustees a public authority?
MS BROWN: Yes, it is.
MS EASTMAN: So there has been a period of time before 2019 when the new legislation was enacted, that the State Trustees will have had obligations to work consistently with human rights; is that right?
MS BROWN: That's correct.
MS EASTMAN: When the Guardianship and Administration Act in Victoria came into (indistinct) what change, if any, occurred in relation to the primary object of the Act to protect and promote human rights by reference to the Convention on the Rights of Persons with Disabilities? Did that result in having to do anything differently in your organisation?
MS BROWN: It did. So, first of all in terms of the conventions my understanding is that the Act was amended to be aligned with the convention. The changes to the Act bought about quite significant change for us and for my people. Just in terms of, I think, really elevating to a much greater extent the need for us to be communicating and working with clients and making sure that they are involved in and making were making decisions together and that they are participating in that much more fully perhaps than before. And so that's bought about a number of process and procedure changes across our whole entire workforce.
MS EASTMAN: We asked you or we asked Mr Velegrinis about the training of staff within the State Trustees and are we right in understanding that there hasn't been any specific training with respect to the CRPD?
MS BROWN: I don't believe there has been.
MS EASTMAN: So if there's been no training in relation to the CRPD, and given what you've just said earlier in the answer, then how is it within the State Trustee that people are aware when discharging their duties in understanding what the CRPD is about and the extent to which it might be different from the Victorian Charter of Rights?
MS BROWN: So I am not 100 per cent sure but I believe the CRPD may be covered off in some of our training. Not explicitly as a stand alone unit but I think it may be referred to, but I wouldn't be able to quote which training it would be.
MS EASTMAN: Turning to the Victorian Act, there is a presumption that a person has decision making capacity unless there is evidence to the contrary and that's set out in the legislation at section 5(2). When it comes to the State Trustees being appointed as someone's administrator, would it be for the State Trustee to be making the applications for the State Trustees to be appointed?
MS BROWN: No.
MS EASTMAN: Where the State Trustees come in is if an application is made by somebody else, it might be a family member, it might be a service provider, it might be in a hospital setting if somebody needs an administrator to leave hospital and find accommodation or something like that?
MS BROWN: That's right.
MS EASTMAN: So thinking about the role of the trustee, the State Trustees, if someone makes an application to VCAT for financial orders to be made and there's the presumption that a person has decision making capacity unless proven to the contrary, does the State Trustee have any involvement in presenting evidence to VCAT in relation to whether a person has an impairment in decision making capacity.
MS BROWN: Can I just ask for clarification: do you mean when a client may be appointed for a first time, or do you mean in a restatement?
MS EASTMAN: Well, just step back, does the State Trustee have to become a party to a VCAT proceeding if it looks like the only option in relation to a financial administrator will be the State Trustees, that there's no one else there?
MS BROWN: No. And we wouldn't submit evidence to support an application.
MS EASTMAN: So the so when the State Trustee becomes involved, it's after VCAT has made that application made the decision; is that right?
MS BROWN: That's correct.
MS EASTMAN: And so you have the decision, the decision is no doubt made because VCAT is satisfied that the represented person has a disability and does not have decision making capacity in relation to matters relating to their personal or lifestyle affairs, the person needs an administrator, and the purpose of the order will promote the person's personal and social wellbeing. So that's sort of a given when the State Trustees come in?
MS BROWN: That's right.
MS EASTMAN: And you may have heard me ask some questions earlier today about decision making capacity and working out capacity, how you prove capacity, are we right in understanding that for the State Trustees you don't have a role in determining capacity?
MS BROWN: We don't. Initially, I think to the extent that and certainly our people are not trained to make those assessments but certainly when we get to know our clients and through our engagement, our talking with them, we get a we certainly get a sense about the degree of decisions that they might be able to be perhaps more involved in than not. And I think that's different for each client.
MS EASTMAN: Okay.
MS BROWN: And depending on the magnitude of the decision that might need to be made.
MS EASTMAN: That sounds more like when you take over the role as financial administrator.
MS BROWN: Correct, that's right.
MS EASTMAN: And you get to know the person.
MS BROWN: Correct.
MS EASTMAN: And you are applying will and preferences in relation to the person.
MS BROWN: Correct.
MS EASTMAN: But working out whether the person does or doesn't have capacity, whether the person's capacity fluctuates or changes over time, that is not part of the State Trustees role or function?
MS BROWN: No, it's not. No, it's not.
MS EASTMAN: And in terms of an order that may be made by VCAT, if the order is made, say, for a period of three years, it's not the State Trustee's role to say, for example, "I really think that Mary's doing very well and really don't know why we are here. Mary makes all the decisions that she wants to make. She expresses will and preference. She's financially able to make the decisions, what are we doing here?" There is not a function, is there, for the State Trustees to say, "I don't think we should be here anymore", are the State Trustees to initiate a remove application?
MS BROWN: Not typically but it wouldn't be uncommon for us to maybe have be having that conversation with the client about how they felt about it, if that was the case, because certainly we then might encourage them to approach VCAT to have the order reassessed prior to the
CHAIR: Ms Brown, I'm sorry to interrupt, I just want to go back, please, to an answer you gave to Ms Eastman. Ms Eastman asked:
“Does the State Trustee have to become a party to a VCAT proceeding if it looks like the only option in relation to a financial administrator will be the State Trustee?”
Your answer was:
“No. And we wouldn't submit evidence to support an application.”
Section 25(c) of the Guardianship and Administration Act says:
“The following persons are parties to a proceeding on an application under this division, (c), the person proposed as guardian or administrator as the case requires.”
Wouldn't that mean that the Public Trustee, if an administration order is sought and the Public Trustee is to be the administrator, is, by force of section 25(c), a party to the proceeding?
MS BROWN: Perhaps. I think I answered the question in the context of whether we would be submitting any evidence at the time of the application going to VCAT and whether that would contribute or influence the decision that VCAT have made and certainly that's the context that I answered the question no.
CHAIR: Actually, what you said was:
“No. And we wouldn't submit evidence.”
And my next question is: if you are a party, why wouldn't you present evidence if it was an appropriate case for The Public Trustee to do so, for example, if the Public Trustee had information suggesting that it was not appropriate that it should be appointed but somebody else should be appointed?
MS BROWN: I'm not sure that to my knowledge, I don't believe that State Trustees gets has access to the information of new applications that go to VCAT prior to them having had a hearing and VCAT making a decision. So I don't know that we have visibility of that information.
CHAIR: I would have thought you do because section 26 says:
“Any party to a proceeding gets the notice.”
And you're a party to the proceeding under section 25(c). Anyway, I don't want to have a debate about legal matters. I'm just surprised at the answer, that's all. Yes, Ms Eastman.
MS EASTMAN: Can I ask you about what information is available to people before this process in VCAT starts. So bear in mind what the Chair has just said about the State Trustee under the Act being a party and being involved, you've said it's not practice that you take an active role in presenting evidence, and, in effect, your work starts once the order is made.
MS BROWN: That's right.
MS EASTMAN: Rather than making the order in the first place?
MS BROWN: Correct.
MS EASTMAN: For people who may be the subject of an application, knowing what an administrator may do, including the State Trustees as administrator, might be something that will be quite relevant to their capacity to participate in the VCAT proceeding, to express will and preference because they do it in relation to what administration might mean. Does the State Trustees provide any information for people to know what might happen at VCAT and what they need to know before this process starts; do you provide any information of that kind?
MS BROWN: I am aware that there is a joint publication which is a booklet which the State Trustees, the office of the public advocate, and also VCAT contribute to in terms of contents and that, I believe, is made available online and I believe all three of our organisations have that available online and, in addition to that, our website includes information about what to expect.
MS EASTMAN: At paragraph so this is page 30 of Mr Velegrinis' statement at paragraph 22.1
MS BROWN: 22 point?
MS EASTMAN: 22.1.
MS BROWN: Yes.
MS EASTMAN: You've set out there, as part of education resources, the following publications explaining financial administration that are available on the website. So there is three there.
MS BROWN: Yes.
MS EASTMAN: And in terms of these three resources, are these documents that you're familiar with?
MS BROWN: Not intimately familiar with their content but aware that they exist and the ways in which they are provided. Two of those are actually included in our welcome pack that's provided to clients when we meet with them.
MS EASTMAN: I do want to ask you about the welcome pack because the welcome pack is when the order is made.
MS BROWN: Correct.
MS EASTMAN: So I'm trying to just sort of get a sense of where the Trustee comes in and out. So I'm just at that stage that, accepting your work starts after the order is made, it's how much information is provided before that process starts so that people understand, when your job starts, what they can or can't say before the application has been made. So that's where I'm at, that sort of early stage. Are you able to tell the Royal Commission whether the documents that are referred to there, your guide to financial administration, understanding financial administration statements, and administration guide, address the type of information somebody may need to know before an order is made?
MS BROWN: I don't believe it's before. It's what they can expect will happen after, correct.
MS EASTMAN: Is there any publicly available information that you're aware of that deals with the before?
MS BROWN: Not that I'm aware of. I must admit that the VCAT content that might it might be in the guide, the joint publication, may well include information but I'm not familiar with that.
MS EASTMAN: VCAT might say, "This is how our procedures and processes work", but I'm trying to get to something before the process starts to understand but you're not aware of anything?
MS BROWN: Not that I'm aware of, no. Not that I'm aware.
MS EASTMAN: Do you think it would be helpful for people to have information before the process starts so that they can then have information that might help them decide what information or evidence they need to give to VCAT?
MS BROWN: Yes.
MS EASTMAN: And, at the moment, you are not sure where anybody would go to get that information?
MS BROWN: Personally I'm not aware, no.
MS EASTMAN: Okay. So assume VCAT has made the decision, satisfied itself of the requirements and then the State Trustees come in, it's the practice, isn't it, to provide a person who is subject to the orders with the welcome pack?
MS BROWN: That's right.
MS EASTMAN: And the documents we've just been referring to at paragraph 22.1, are these documents that are routinely provided to everybody who is the subject of orders, or do you have to look that up yourself?
MS BROWN: So they are they are provided along with the documents which are listed in 22.2.
MS EASTMAN: And how long have these documents been available? Is this a relatively new suite of documents or have these always been available in some kind of form?
MS BROWN: The newest is the Understanding the Financial Administration Statements. That's only been in existence since about 2019. Aside from that, all of the remaining five documents one of them is actually not a State Trustees document, it's the Victorian Ombudsman document but those other documents are certainly not new, and they have been provided for some time. They do regularly have a review process though where we might update content.
MS EASTMAN: And are the documents provided in an easy read format?
MS BROWN: Two of them two of them are, A and B are in easy read format. That is something we undertook about two, two and a half years ago, to convert those.
MS EASTMAN: Has the process of developing these documents been done as a model of co design with people with disability; do you know that?
MS BROWN: We partnered with I can't quite recall the name of the organisation, it is in the statement here, but we did partner with an organisation to help us convert our old existing documents into easy English and that was something that we did in late 2019. I just can't recall the name of the organisation. It is in here somewhere.
MS EASTMAN: That's alright. Some of the information, particularly your Guide to Financial Administration, is also available in some different languages; is that right?
MS BROWN: Yes, it is. That's right.
MS EASTMAN: That's in paragraph 23.3.
MS BROWN: Yes.
MS EASTMAN: I want to now turn to the number of people in Victoria who are subject to the financial administration orders and, Chair, I need to correct what I said, maybe it is my New South Wales bias of attributing the largest number of applications and orders to Victoria when I did my opening, but it, in fact, is New South Wales rather than Victoria. So, with that correction that Victoria is not the leader, I think it's the case, isn't it, that, as at October this year, 20 October this year, the total number of clients who are under administration is 9,256 clients?
MS BROWN: That's correct.
MS EASTMAN: And some there's a small number who may be interstate but for the most part these are people who live in Victoria?
MS BROWN: That's correct.
MS EASTMAN: And some people are still under the old Act, the 1986 Act?
MS BROWN: That's right.
MS EASTMAN: And some under the new Act. So you've set this out at paragraph 4.4 and 4.5 of the statement?
MS BROWN: Yes.
MS EASTMAN: So there are still 2,349 people who have administration orders made under the 1986 Act?
MS BROWN: That's correct.
MS EASTMAN: And then the balance, so that's almost 7,000 under the 2019 Act. Can you tell us what in what circumstances the 2,349 people are still subject to orders under the 1986 Act; do you know that?
MS BROWN: So the 2,349 clients are still under the 1986 Act because their order that was in place has not yet come up and been due for reassessment. So an order goes for three years, and it means that the three-year review date hasn't yet occurred for those clients.
MS EASTMAN: Was the arrangement, when the new Act came in, that you would just keep the three-year cycle rather than bring everybody
MS BROWN: Correct. That's correct.
MS EASTMAN: into the 2019 Act?
MS BROWN: Yes.
MS EASTMAN: You may not know this precise number but how long do you think it will take before all of the 2,349 people, if administration is going to continue, would be brought within the 2019 Act?
MS BROWN: Roughly, I think, between July and maybe September next year, 2023.
MS EASTMAN: And we asked you about the average period for which a State Trustee would be appointed as administration and the average period is 7.9 years, so about eight years.
MS BROWN: That's right.
MS EASTMAN: So for that most part, if any are on the three year review cycle, it pretty much puts them to at least administration on two but sometimes up to three cycles.
MS BROWN: That's right.
MS EASTMAN: In terms of those cycles of every three years, are you able to say that anything about that initial three year period of supporting people to build skills or to establish capacity so that those orders remain for the shortest period of time, being the three years that may be fixed by VCAT; can you speak to that?
MS BROWN: So I think the from a decision making capacity perspective or a client's ability to be able to demonstrate that perhaps they don't need State Trustees any long, I think that's quite varied depending on the client and their circumstances. We I think the new Act has brought about a real prevalence for us around enhanced communication and budget setting and making decisions along with the clients and having their involvement a lot more than perhaps what we have done historically and so I think, with the new Act, that is going to probably become more prevalent that clients won't be with us for as long, I would expect, which is a positive of the new Act.
MS EASTMAN: Alright. So in terms of people who are under administration orders to the State Trustees, a third roughly looking at the figures and they are at 4.7 in the statement about a third of people live with mental illness, a third of people live with intellectual disability and then after that it's almost if we combine together dementia, Alzheimer's, and acquired brain injury or stroke, that's the balance of the third, that putting those two groups together; is that right?
MS BROWN: That's right.
MS EASTMAN: And looking at the ages of people who are subject to the financial administration orders, is for Victoria it's almost half of people under 60 and half over 60. So, a little bit more, 55 per cent of clients are under the age of 60. Is there anything about that age demographic that with respect to the older cohort and I asked this question yesterday would the 45 per cent of people over the age of 60 for the most part be older people who are experiencing a cognitive decline as they age? So there's a link between age and disability; is that right?
MS BROWN: Yes. Yes.
MS EASTMAN: We also asked you about First Nations.
MS BROWN: Yes.
MS EASTMAN: And you have said at paragraph 4.8, that there are 112 First Nations clients and that represents 1 per cent of all clients.
MS BROWN: That's right.
MS EASTMAN: Now, I asked the question over the past two days to the others, is that 1 per cent proportionate or disproportionate to the broader population of First Nations people, in this case, in Victoria?
MS BROWN: I believe it's less than the general population.
MS EASTMAN: And in terms of the State Trustee's work for First Nations people in Victoria, you don't have an Aboriginal Liaison Officer employed as part of the State Trustees; is that right?
MS BROWN: No, we don't.
MS EASTMAN: And have you ever had an Aboriginal Liaison Officer?
MS BROWN: No, we haven't.
MS EASTMAN: Is there a policy or practice for the State Trustees to engage with First Nations people who find their way through VCAT and to having administration orders applied?
MS BROWN: So we I guess, from an organisational perspective, we've got a diversity, equity and inclusion road map, which is a three year plan, and within that we have got a goal to further build, I guess, our capabilities as an organisation and our sort of intent around reconciliation and First Nations clients. So that work has begun but certainly we have a way to go.
MS EASTMAN: We also asked you about the number of people who are from a CaLD background, and the Royal Commission recently conducted a hearing in Victoria and we had some evidence from the Victorian multicultural Commission and we heard a little about the experience of CaLD people in Victoria. Does the State Trustees have a working definition of who is a person from a culturally or linguistically diverse background?
MS BROWN: I'm not aware and couldn't quote that today.
MS EASTMAN: Do you keep any statistics in relation to identifying people from culturally or linguistically diverse backgrounds?
MS BROWN: So we certainly capture a client's country or place of birth, and we have quite detailed records about that.
MS EASTMAN: When we held the hearing recently in Victoria, in Melbourne, about the CaLD community, we also examined whether people who use Auslan as their first language, and are deaf, are part of a CaLD community. Does the State Trustees have I withdraw that and will walk that back a bit. For a person who is deaf and whose first language is Auslan how do the State Trustees include that person? Where do they fit in the count? Are they CaLD? Are they not?
MS BROWN: I can't answer that question, unfortunately.
MS EASTMAN: Okay. The other question we asked you was the number of people who are subject to the orders who may also be NDIS participants and 46 per cent of clients are NDIS participants. That's paragraph 4.10.
MS BROWN: Yes.
MS EASTMAN: And I'm not sure you have addressed the impact of the NDIS in any detail in the statement, but have you observed, with the rollout of the NDIS in Victoria, whether that has made any change or have you seen any trends about the impact of the NDIS in relation to financial administration orders?
MS BROWN: Not directly impacting financial administration orders. I think, as a financial administrator, it's really important that we have visibility of a client's NDIS plan and that is certainly a challenge for us in terms of getting access to that information.
MS EASTMAN: So what are you doing about the challenge of getting access to that information?
MS BROWN: So really the options available to us are to so we are reliant first of all on the client being willing to share with us that they are an NDIS participant. They also we are completely reliant on them on either providing a copy of the plan or consenting to us consenting for us to have a copy of the plan which isn't something that automatically happens or happens in all cases.
MS EASTMAN: Does that create any impediments to being able to discharge the duties of State Trustees if the person subject to orders is also an NDIS participant?
MS BROWN: It certainly does because where the NDIS should be funding services or supports for a client, and perhaps their plan does provide for that, it's really important that we have access to that information so that we are not using the client's own funds to pay for things that the NDIS should be paying for.
MS EASTMAN: How do you work that out then?
MS BROWN: With a great deal of difficulty and sometimes we can't.
MS EASTMAN: Well, doesn't that create a very significant disadvantage to the represented person?
MS BROWN: What it means is that I have a team of people who are sort of constantly asking the question and trying to obtain that consent because we recognise how important that is and so that's certainly yes, it's a very manual process and something that we keep just needing to go back and ask the question because we are not legally entitled to that information any other way.
MS EASTMAN: What needs to change? Because it sounds to me that the onus falls to the represented person, the person who’s subject to the orders, the person for whom a decision has been made that they need an administrator to assist on financial affairs, and you're in the NDIS, which is all about making decisions, exercising choice and control over the supports you need, isn't there an inherent conflict in that for putting the onus back on the supported on the represented person?
MS BROWN: Yes. There needs to be a provision in the NDIS Act that enables substitute decision makers to have access to that information because at the moment there is no ability for us to be entitled to that.
MS EASTMAN: Alright. So you think it needs an amendment to the NDIS Act? There's no you don't have a Memorandum of Understanding with the NDIA about those things?
MS BROWN: No, we don't.
MS EASTMAN: We also asked you about the number of orders that have been revoked or have ceased and I think you have told us ins the statement that 270 orders were revoked. That's between July 2021 and June this year. And of that 104 cases meant the end of administration orders, but 166 different administrators were appointed; is that right?
MS BROWN: That's right.
MS EASTMAN: If a different administrator is appointed, for the most part and I'm not asking you to speak to all 166 cases but what would happen in those circumstances?
MS BROWN: So, in those circumstances, we would receive a notice from VCAT advising that State Trustees appointment has been revoked and then we would go through a process of finalising everything that we have sort of got underway for the client and make sure that we then provide the relevant information to the new administrator, and we obviously need then to distribute any funds that we might be holding for management by the new administrator.
MS EASTMAN: For the most part, if a new administrator comes in does the new administrator do the same sort of work that State Trustees does in relation to skill building and engagement of the kind that you were talking about earlier?
MS BROWN: I'm not sure I can comment. It might depend. I think alternative administrators typically will be a family member or a friend or somebody else close to the client in their support network. So I'm not really sure I can comment on what they would do or not do.
MS EASTMAN: We have asked you about the staffing arrangements in the State Trustees and I think have you told us there are 176 full time equivalent staff. That's paragraph 7.9.
MS BROWN: Yes.
MS EASTMAN: And the State Trustees are located in various parts of Victoria, in Footscray, Dandenong, Bendigo, and Melbourne CBD.
MS BROWN: Yes, that's right.
MS EASTMAN: Are the majority of the 176 full time equivalent staff Melbourne based?
MS BROWN: It's sort of equally spread across the three sites.
MS EASTMAN: And are any of the staff people who are First Nations who identify as First Nations people?
MS BROWN: Our latest People Matter survey, which is our staff engagement survey, had one person that identified as being First Nations, but I can't say that that was part of the 176 because that's only a portion of our organisation. But there was one person in that survey who responded that they were, and we had 30 people who chose not to say.
MS EASTMAN: And the Royal Commission in previous hearings has had the benefit from hearing from the Victorian Public Service Commissioner or Public Sector Commissioner about the targets for employing people with disability in public sector organisations in Victoria. Is the State Trustee subject to those arrangements and those targets in terms of employment for people with disability?
MS BROWN: I don't believe they are, but I couldn't be 100 per cent sure.
MS EASTMAN: Do you have any knowledge of the number of staff who are people who identify as people with disability?
MS BROWN: I do. So of the 383 respondents to the recent survey, 19 identified as having a disability and, again, 30 people chose not to respond.
MS EASTMAN: Right. Does the State Trustees have any consultative committee or advisory bodies that regularly engage with people with disability?
MS BROWN: No, we don't. We have an internal disability action working group but it's quite new and potentially down the track it may but at this point in time it doesn't engage externally.
MS EASTMAN: So given the cohort of people who are subject to financial administration orders, being one third of people with intellectual disability, is there no consultation with any relevant advocacy groups that support people with intellectual disability? There's nothing?
MS BROWN: So we certainly work with a number of a number of groups, I guess, advocacy groups who are involved in our clients' lives. So we would deal with them sort of on a day-to-day basis but certainly there are no sort of reference groups or anything like that that we host or run.
MS EASTMAN: Well, I take you back to the CRPD and I assume that there are rights in the CRPD about consulting with people with disability. How would the State Trustees give effect to say a right to be consulted in discharging its functions if it's got no reference group or no advisory groups that represent people with disability, in particular, people with intellectual disability; how do you achieve meeting those rights obligations?
MS BROWN: Certainly we have a gap in terms of consulting with people with a disability in terms of performing some service model and how we deliver services but certainly we are consulting with our clients each and every day. But I guess if the question is being asked in the context of how we have shaped our service delivery, certainly, that's a gap for us.
MS EASTMAN: Is there any plans to address that gap?
MS BROWN: It's certainly been a topic of conversation over the last three to six months in terms that we need to do that. We are in the middle of just going through some change and it's been, I guess, placecarded as next thing that we need to put on the agenda, and we need to do that. So certainly acknowledged that it needs to be done.
MS EASTMAN: Would the work that needs to be done also be the opportunity to bring in people with disability who themselves have had experience of financial administration orders to give some advice and to be consulted about what could be done better in the organisation?
MS BROWN: Yes. No, absolutely. I think it is. Probably one thing that is also important for me to say is that when we have been developing a service it hasn't been completely at the exclusion of clients' experience because certainly we have we have a survey, a satisfaction survey for clients and also we have quite a bit of information from complaints or complements that are provided to us. Certainly those things have informed what we have done to date. So it hasn't been completely absent of taking that into consideration. But there absolutely is an opportunity, as you say, to bring them in and talk to them about, you know, people like Uli and their experience. Absolutely.
MS EASTMAN: We have asked you about the staff training and there's a lot of information in the statement about that are we right in understanding that there is no specific trauma-informed training?
MS BROWN: There is but I can't remember the exact name of it, sorry, and I don't think it's included in our statement.
MS EASTMAN: And to the extent any training is done with respect to communication with and understanding the rights of people with disability, is any of that training done and led by people with disability?
MS BROWN: No.
MS EASTMAN: Why not?
MS BROWN: To date our training around human rights has been conducted by the Victorian Human Rights Commission and so that has been done face to face by them but it certainly hasn't been run by people with a disability.
MS EASTMAN: Would you accept that, for an organisation such as the State Trustees, whose basically absolutely core business is to work with the will and preference of represented people, and they are people with disability, that to not have any form of training or engagement with people with disability is, may I say, a fairly significant deficiency?
MS BROWN: Yes.
MS EASTMAN: I want to now deal with a level of engagement, and you've been in the room this morning and you've heard some pretty strong views about people's experiences, and we accept that they are two experiences, but you have also seen some of the case studies that Ms Anderson set out in her statement. So one of the issues is how can you make decisions about someone without knowing them or without understanding their life, and also being in contact with them, and you heard the evidence this morning of that frustration about the contact and the nature of the contact. Are we right in understanding that the State Trustee has a particular procedure or policy with respect to the nature and the frequency of contact with a represented person?
MS BROWN: Do you mean a policy that set us out how frequent that should be?
MS EASTMAN: How frequent.
MS BROWN: We don't have a specific policy that sets that out, no.
MS EASTMAN: But you aim to meet within 20 business days of the orders being made?
MS BROWN: That's right.
MS EASTMAN: But no later than 45 days.
MS BROWN: That's right.
MS EASTMAN: So does that come from a policy? Where does that come from?
MS BROWN: It comes from one of our measures under our Community Services Agreement from the Department of Family, Fairness and Housing.
MS EASTMAN: And the nature of that first meeting is, what, a face-to-face meeting?
MS BROWN: That's right.
MS EASTMAN: And is that organised at a time that is convenient for the State Trustees or is it organised by the State Trustees working out the best time for the person who is now the subject of new orders?
MS BROWN: Yes. So we make contact with the individual after receiving the order and make a time that's mutually works for both parties. Often we also are reliant on the client wanting to bring along a support person. So often we might need to fit in with availability of case managers and social workers, etcetera, depending on who's there.
MS EASTMAN: Now, Mr Cartwright says, over the course of his time, that there were six meetings and Mr O'Donnell says once. It's the case, isn't it, that when you have looked at the frequency of contact that you aim for in person once every three years.
MS BROWN: That's our new way forward as a result of having received some additional funding back in July and so we are setting up a team to meet with existing clients once every three years. Prior to that, we've only had a team available to meet with new clients for one appointment.
MS EASTMAN: So prior to that you would do the initial welcome?
MS BROWN: Yes.
MS EASTMAN: They might get their welcome pack and information?
MS BROWN: Yes.
MS EASTMAN: But after that they may never see a State Trustee again?
MS BROWN: We would
MS EASTMAN: In person.
MS BROWN: We would depending on what was going on for a client, we would we would do a follow-up visit if we need to but they their that was I won't say it was rare, but I think, on average, we would do maybe 300 per year prior.
MS EASTMAN: And what in that context, what's the sort of average caseload for the full time staff who have got the particular delegated responsibility to act as administrator.
MS BROWN: So we don't, at the moment, run a caseload model. So we do have one team, in particular, that is sort of more group case managed but we actually don't have case workers that have a dedicated portfolio of clients that they manage.
MS EASTMAN: And you've heard I think this morning and I'm not asking you to comment on the individual cases is that real frustration that if you don't have a dedicated person that every time you ring up or you try to make contact you feel like you are explaining yourself over and over again. Has that been a feature of the way in which the absence of a dedicated person or manager has been for clients?
MS BROWN: I think certainly it is a frustration. We have call centre that manages our in bound calls from clients. So when clients contact us they will speak with our contact centre. That has between 35 and 40 sort of people who are in that contact centre. So it stands to reason that they may well get a different person each time they call. But certainly, depending on the frequency of how often we are contacted, the contact centre still gets to form relationships and get to know the people because of that sort of frequency of contact. But certainly appreciate that it's a frustration.
MS EASTMAN: Well, they get to know them because they are speaking on the phone but that's because the contact, for the most part, is initiated by the represented person isn't it.
MS BROWN: That's right.
MS EASTMAN: Rather than it coming from the Trustee.
MS BROWN: That's correct.
MS EASTMAN: So let's come back to the aim for in person once every three years. Are we right in understanding that there may be an initial meeting within 20 or 45 days of the orders being made and then at some point within assume the orders are for a three-year duration you might have one additional meeting in that whole three years; that's it?
MS BROWN: Yes. But we are finding that there is more of a need to sort of have a follow up meeting now after that initial visit and certainly we are finding more and more we are needing to do that because of the complexity of what what might be there and need to be dealt with.
MS EASTMAN: And other than in-person contact, there's a client average of contact at 2.5 contacts per month, that's paragraph 15.1; is that right?
MS BROWN: Yes, that's right.
MS EASTMAN: Now, if you have a client, for example, who is feeling particularly worried about being able to access money and may be a frequent caller to the State Trustees, are there occasions where you try to limit that person's conduct or behaviour in calling very frequently?
MS BROWN: Only where there are circumstances where perhaps the conversations aren't very constructive or there might be verbal abuse or behaviour towards staff. Sometimes we do find that we need to try and reduce the instances of that happening.
MS EASTMAN: And what do you do whether that happens? How do you manage that situation?
MS BROWN: Yes. We talk to the client about sort of, I guess, reflect on what's been happening and whether those conversations are actually working at all for them but also for our people who are involved in them and talk about the fact that and sometimes what that means is that we will arrange a certain day or time, or multiple days or multiple times during the week, where that, I guess, communication and conversation can be a little bit more structured in terms of when it happens.
MS EASTMAN: Is that done to suit the State Trustees?
MS BROWN: It's not done to suit us. In some instances it's around protecting our people from a health and safety perspective.
MS EASTMAN: So that sounds like it's from a State Trustees.
MS BROWN: Okay. In that case, yes.
MS EASTMAN: And does the State Trustee have any policies or take advice about why a person, who may be subject to the orders, may, through their behaviour, need to frequently call and that behaviour really being a form of communication. Have you got advice about understanding the communication and behaviours of people with disability who the State Trustees might say, "This is a bit too many calls and we are finding it a bit confronting and it's very disturbing to our staff.” What's being done to understand what's happening on the other side of that conversation?
MS BROWN: One of our training programs does cover off on disability types and sort of methods of communication and what's best. So certainly I know that our specialised support team has completed some of that training and certainly I think some clients prefer the structured communication and the core management plan because that actually works better for them depending on their illness or disability, but I appreciate that perhaps that doesn't work for everybody.
MS EASTMAN: Does the State Trustees have a policy at all as to when and how it makes reasonable adjustments with respect to the services it provides?
MS BROWN: Do you mean in the context of the Act or sorry, what was the question?
MS EASTMAN: Well, under either the Victorian Equal Opportunity Act or the Commonwealth Disability Discrimination Act, there is legal obligations to make reasonable adjustments. The CRPD includes the right in relation to reasonable accommodation. So that's what I mean by those expressions in context. Does the State Trustees have a policy in relation to reasonable adjustments and, if so, what does the policy say about when and how reasonable adjustments may be made for the person who is subject to the orders, a person with disability, to be able to access those services.
MS BROWN: I don't believe that we have got the policy specifically around reasonable adjustments.
MS EASTMAN: Why not?
MS BROWN: I can't answer that.
MS EASTMAN: I'm mindful of the time. The last question wanted to ask you about is about the financial independence program.
MS BROWN: Yes.
MS EASTMAN: And you have provided, or Mr Velegrinis has provided in the statement, a description of the program and some of the documents in relation to the financial independence program. So that's set out there.
MS BROWN: Yes.
MS EASTMAN: Has the financial independence program received had additional funding or resources attached to it when that program has been rolled out?
MS BROWN: So just recently, back in July, we have received some additional funding which is enabling us to recruit more financial independence consultants, which means that we will be able to further our reach in terms of how many clients we can support on that program. So, we are recruiting at the moment for those additional roles.
MS EASTMAN: And how does the State Trustees determine who and when the financial independence program might be developed or might apply, like, who gets to go on it?
MS BROWN: So quite often our people, So our consultants, who might be talking with clients day to day, it might come up in conversation. Often our staff suggesting it as something they should consider. Sometimes clients are very open to that, sometimes they are not and they are not interested, but certainly it comes up and that team gets a number of referrals from within the business unit about people who are potential candidates to be on financial independence. So we also often or not often, but sometimes, receive orders from VCAT where they are recommending that financial independence might be appropriate for a client. Sometimes that's at the time of reassessment, sometimes it can be at the stage of the initial order.
MS EASTMAN: Is the information about the financial independence program part of the documents that I have asked you about earlier at paragraph 22.1 and 22.2? Is that information about the program provided at that early stage or when a person first starts under orders?
MS BROWN: The actual document at the moment is not in the welcome pack, but once we have got the resources in place certainly the intention is to place it there. We do have onboarding consultants who have the financial independence conversation with the client when they are new to State Trustees. So, the conversation we have, the actual flyer that is submitted with evidence, will be included in the welcome pack once we have got the consultants on board because we need to have the capacity to be able to provide that support to those clients.
MS EASTMAN: Do you think there's any benefit of offering the financial independence program before the process starts?
MS BROWN: I think there would be. And certainly VCAT have our flyers there to hand out to people. So we provided a flyer to VCAT for information purposes.
MS EASTMAN: Thank you. Commissioners, I'm just mindful of the time, and there's a lot of information contained in the statement and the accompanying documents which the Royal Commissioners have read and will carefully consider, but that ends my questions, and the Commissioners may have some questions for you.
CHAIR: Yes. Ms Brown, Mr Velegrinis, I take it, has taken up his position as Chief Executive Officer about a year or so ago; is that right?
MS BROWN: That's correct.
CHAIR: Is the organisational structure the same now as it was in mid 2021; that is, with five general managers under the Chief Executive Officer of whom you are one?
MS BROWN: There are four general managers and then the CEO.
CHAIR: There were five in 2021. So that's changed, has it?
MS BROWN: I think in terms of how it's worded in the statement, I think the executive team comprises the CEO, which is John, and then four general managers. That was the structure at that time.
CHAIR: Right. Now, I don't mean to imply it by this question that you're not qualified for the position that you hold, but there's nothing in your background, is there, by way of experience or training that has given you expertise in dealing with people with cognitive disability or intellectual disability; your training is essentially as a banker and in business; is that right?
MS BROWN: So, I've been with State Trustees for just on 15 years in a range of
CHAIR: I understand that, but I'm asking about training.
MS BROWN: So I have completed training, but my people would would complete. However, I have not had any other qualifications outside of that; that's right.
CHAIR: And that's true of Mr Velegrinis; is it not?
MS BROWN: I believe so.
CHAIR: Isn't that the fundamental problem? That is to say, that this is an organisation that is essentially run as a financial business and yet its core function is to provide assistance to people with intellectual disability or cognitive impairment; isn't that the fundamental problem?
MS BROWN: I think my role is as a leader is about
CHAIR: I'm sorry, I'm not talking about your role specifically, I'm not doubting your qualifications with a particular position. I'm talking about the institution.
MS BROWN: I think the people my people, who are dealing with clients every single day bring a breadth of experience and in dealing with clients, we have people who have worked at the NDIS, we have people who have been social workers before, and I think they are the people who are dealing with our clients every single day. It's not myself or John.
CHAIR: And which of the executive team have particular expertise or experience in providing services or understanding the experiences of people with intellectual disability or cognitive impairment?
MS BROWN: I can't answer that. I don't have I don't have their background, unfortunately.
CHAIR: No. Isn't it fairly obvious that there is a fundamental issue here?
MS BROWN: I'm not sure that there is. But I appreciate that
CHAIR: Well, you have answered you have answered a lot of questions, and I understand you're answering them honestly and to the best of your ability that Ms Eastman has asked, and many of your answers are that this is an organisation which is struggling to come to grips with the functions that it's meant to perform under the various pieces of legislation which place people with disability at the heart of its responsibility, as distinct from financial outcome.
MS BROWN: I think all I can say is that my people care deeply about the clients that they work with every single day, and they do the best job that they can.
CHAIR: I'm not doubting that. I'm not doubting that. I'm asking you a question about the institution and its priorities.
MS BROWN: Well, certainly
CHAIR: Anyway. If there's nothing more you can say
MS BROWN: All I was going to say is that my business unit, certainly, are from an organisational perspective and of all the improvements that have been made, my area is definitely being made the priority in terms of recognising the improvements we need to make and that's been a I think, at the exclusion of making improvements, perhaps across the rest of the organisation, certainly my area has been made the priority in the improvements that we are making, and getting that organisational support to do things differently.
CHAIR: Alright. Thank you. I will ask first Commissioner McEwin if he has any questions for you.
COMMISSIONER McEWIN: Thank you, Chair. Ms Brown, thank you. I have some questions about the financial independence program that Ms Eastman just asked you about. At 4.11 of the CEOs statement, it says:
“The number of clients currently participating in the financial independence program is 201.”
MS BROWN: That's right.
COMMISSIONER McEWIN: Is that out of a total of 9,256 clients?
MS BROWN: That's right.
COMMISSIONER McEWIN: That's just strikingly to me, a strikingly low number; why is that?
MS BROWN: So partly it's about resourcing. So we are about to as you said earlier, we are recruiting some additional consultants with some additional funding we were provided in July and so we will be looking to double that or more than double that. So, we are planning on having at least 500 clients in the program.
COMMISSIONER McEWIN: Double? You mean, like, 400 out of -
MS BROWN: More than double. So, 500 is how many we will be we're funded to have on the program.
COMMISSIONER McEWIN: Do you still think that will be a very low percentage of the number of clients?
MS BROWN: To be on the formal program, yes.
COMMISSIONER McEWIN: Can I then take you to 25.1, which is also about the financial independence program, and picking up on your comment that you say that it comes up in conversations with the clients. To me it appears that there's no incentive or motivation from the part of the State Trustees to actively promote it, to offer it and to encourage clients. If a client says no, they don't want it, how do you know they are making an informed assessment about wanting to do it? How do you know that?
MS BROWN: That's a good question. Certainly we talk about the benefits of the program. I and when we do we often have clients who say they aren't interested but we also have clients who are interested. Whether they understand what they are saying they are not interested into, I'm not sure. But certainly we don't just have the conversation once and then not have it again. So that's probably all I could say.
COMMISSIONER McEWIN: 25.1, subclause (4), it talks about the client needing to be “relatively settled”. To me that appears to be subjective. To take client A, who might have unstable housing but a good support network, versus client B, who might have stable housing but may be not a support network and there are thousands of disabled people who don't have support networks because they are isolated - how do you assess what's settled or not?
MS BROWN: Really from talking to the client. So just trying to ascertain, given what's going on for them, whether it's likely to set them up for success or not. I think we also we need to certainly provide clients with varying levels of support when they are on the financial independence program and check in with them to see how it's going. So really, we can only garner that from having those conversations and the checking and the reviews with them in terms of how it's going and certainly the circumstances also change and can change midway through being on the program, which means that perhaps they don't continue on the program.
COMMISSIONER McEWIN: Thank you.
CHAIR: Yes. Commissioner Ryan.
COMMISSIONER RYAN: Just a detail: when you referred to the structural communication program, that's when someone is limited and they have got to speak to someone at a particular time and so on, do they get to speak to the same officer on those occasions? Or are they again coming to the call centre and speaking to whoever at random answers them?
MS BROWN: We actually do try to make it the same person because I think it's that consistency that enables the conversations to be more constructive given that arrangement. So often we do.
COMMISSIONER RYAN: Do you understand that there will be some people with a disability that it will be really important that they spoke to the same person each time because that meets their particular it's a reasonable adjustment to use the term, for them.
MS BROWN: Yes.
COMMISSIONER RYAN: The other thing I wanted to ask; I understand you heard the evidence this morning.
MS BROWN: I did.
COMMISSIONER RYAN: One of the people with lived experience referred to a counsellor called [Redacted] who they describe as awesome, and it struck me that something very different was going on there to what is your ordinary course of business. So is that was [Redacted] the office of the Public Trustee or someone else?
MS BROWN: [Redacted] works in our specialised support team. So, he's been with our organisation for since around about October 2020.
COMMISSIONER RYAN: So how many people would get access to someone like [Redacted], who seems to be one the officers you have got who is really speaking in a way to people with disability that they really understand?
MS BROWN: So, at the moment, there are 400 clients supported by that team and, again, we are in the market recruiting to double the size of the team. So we are expecting to have between 800 and 850 clients managed by that team by early next year.
COMMISSIONER RYAN: But how many people would deal with 800?
MS BROWN: So, there will be approximately 18.
COMMISSIONER RYAN: It does sound to be
MS BROWN: It's quite intensive.
COMMISSIONER RYAN: - it sounds to be a very intensive thing.
MS BROWN: It is absolutely intensive.
COMMISSIONER RYAN: Do you think that 18 people will be able to deal with 800 clients?
MS BROWN: So, the team to date has been managing 400 clients with nine people. So that's been the status quo since October 2020. So we get to double the team. It's planned for the next three months. So, we will need to review that and see how it’s going.
COMMISSIONER RYAN: You referred earlier in questioning from Ms Eastman that you were talking about the relationship between yourselves and the NDIS, and you might recall you said it's difficult to know whether a person has an NDIS plan or not. If you discover that someone has an NDIS plan, what are you able to do about it about that, given that that is a process of which you can't really impact?
MS BROWN: So, what we need to do is speak with the client firstly to confirm that they do, or they don't, and sometimes they are willing to share that with us and sometimes they are not.
COMMISSIONER RYAN: Let's say they do, what do you do with that
MS BROWN: We ask for a copy of the plan.
COMMISSIONER RYAN: How does that help?
MS BROWN: It helps so that we can understand what the NDIS should be funding so that we can make sure that we're protecting the client's money, they're not spending it on things that the agency should be paying for and not the client.
COMMISSIONER RYAN: So, if you discover the agency isn't paying for something then what happens?
MS BROWN: So we would approach them and get them to pay for it.
COMMISSIONER RYAN: And then the final -
CHAIR: Sorry, I think we might pause there, because we are running out of time for Ms Eastman and the next witness. I think. So thank you.
COMMISSIONER RYAN: Alright.
CHAIR: Ms Eastman, do we take a break, or do you go straight into the next witness?
MS EASTMAN: I think we would everybody here in the hearing room would probably appreciate a break for five minutes or so. It's been a bit of time and I can see people in the room might appreciate a five or so-minute break.
CHAIR: Right. Alright. We will take a break. We will take a break. It's now 3.45 Sydney time until 3.50 or so. And you let us know when you're ready to resume. Thank you.
MS EASTMAN: Can I just do tenders first before we adjourn?
HIS HONOUR: Yes. Yes. Do that, please. Yes.
MS EASTMAN: And thank Ms Brown for coming and stepping in for Mr Velegrinis as well.
CHAIR: Yes. Thank you, Ms Brown, for your evidence. You must have drawn the short straw instead of Mr Velegrinis.
MS BROWN: Perhaps.
CHAIR: No doubt you will wish him a happy holiday when he comes back.
MS BROWN: I will. I will.
<THE WITNESS WITHDREW
MS EASTMAN: So, Chair, there is the statement of Mr Velegrinis and then a number of attachments and there is also Ms Brown's additional statements in relation to responding to some matters concerning Mr Cartwright and Mr O'Donnell. So could you mark the collection of documents Exhibit 30.081 -
CHAIR: Yes.
MS EASTMAN: through to 30.098.
CHAIR: Yes.
MS EASTMAN: And there is one document which I might tender now: there's a response to a request for information from the Victorian Civil and Administrative Tribunal, dated 11 November, and if you could receive that document into evidence and mark it Exhibit 30.113.
CHAIR: That's a document date the 11th, not the 3rd of November
MS EASTMAN: My note says the 11 November from VCAT.
CHAIR: Right. The document behind tab 6 that I have is dated the 3rd, I will take it as the document you're -
MS EASTMAN: It should be tab 30 in the bundle.
CHAIR: Tab 30? Alright. Well, I must be looking at something else. Alright. The document dated 11 November from VCAT will be admitted into evidence and I think you gave it as 30.099; is that right?
MS EASTMAN: 30.113.
CHAIR: Sorry, 30.113 and the documents consisting of Mr Velegrinis’ statement and associated documents will be admitted into evidence and become Exhibits 30.081 to 30.098. We will take the five-minute adjournment.
<EXHIBIT 30.113 RESPONSE TO A REQUEST FOR INFORMATION FROM THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL DATED 11 NOVEMBER 2022
<EXHIBITS 30.081 TO 30.098 STATEMENT OF MR VELEGRINIS AND ASSOCIATED DOCUMENTS
<ADJOURNED 3.47 PM
<RESUMED 3.58 PM
CHAIR: Ms Eastman.
MS EASTMAN: Thank you, Chair. Our final witness for today is Dr Colleen Pearce and a very warm welcome to Dr Pearce returning, I think, for the fourth time to the Royal Commission and you're going to take the affirmation?
DR PEARCE: Yes.
CHAIR: Dr Pearce, thank you for being so patient waiting for your opportunity to give evidence. Once again, we are grateful to you for the statement, the detailed statement, of 52 pages that have you provided, which we have diligently read, and we thank you for being prepared to give evidence this afternoon. If you would be good enough to follow the instructions of the associate 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?
DR PEARCE: I do.
<COLLEEN PEARCE, AFFIRMED
CHAIR: Thank you, Dr Pearce, and Ms Eastman will now ask you some questions
<EXAMINATION BY MS EASTMAN SC
MS EASTMAN: Thank you, Dr Pearce. So I can confirm your name is Colleen Pearce and you are the Public Advocate of Victoria?
DR PEARCE: That's correct.
MS EASTMAN: And you have prepared a statement for this Public hearing dated 5 November 2022?
DR PEARCE: I did.
MS EASTMAN: Are there any changes or amendments to this statement?
DR PEARCE: No.
MS EASTMAN: And are its contents true and correct?
DR PEARCE: Yes
MS EASTMAN: And in addition to the statement, I note that you provided previous statements to the Royal Commission with respect to your involvement in earlier public hearings. Alright. In the time that we've got, I'm going to take a slightly different approach in relation to your evidence - with your permission - is you have heard you have been present during the course of the past three days of the hearing and the Royal Commission has heard previously about your functions, powers and responsibilities and I hope I can do the following things: first of all, I would like to ask you about some of the statistics that you have included, so that those following the hearing can have a sense of the number of people for whom the Public Guardian The Public Advocate acts as guardian in Victoria and some of the data in relation to your office. But I have asked other questions. But then I really want to come to identifying what has been the impact of the changes to the law in Victoria and the reflections that you have done and your office has done in terms of the 2019 Act and the impact that it's had and, in that context, to ask you about the NDIS, the future, and what more can be done and picking up on some of the themes raised today about the opportunity to speak out. So is that can we take that as an agreed approach?
DR PEARCE: Yes.
MS EASTMAN: In terms of the number of people who you are your office, and you are the guardian, as at 20 October this year and this is paragraph 35 of your statement the Public Advocate was appointed a guardian to 1,046 people and there are 10 people who are still under appointments made pursuant to the previous Act, the 1986 Act; is that right?
DR PEARCE: Yes.
MS EASTMAN: And in terms of the number of people in Victoria who are under guardianship of the Public Advocate, we asked you about the different cohorts by reference to the nature of somebody's disability and it's the case that 46.5 per cent of the people for whom you act as guardian are people who live with intellectual disability?
DR PEARCE: That's correct.
MS EASTMAN: The next cohort, in terms of size are people living with psychiatric disability?
DR PEARCE: That's correct.
MS EASTMAN: And then after that the next cohort is almost 30 per cent of people living with dementia and then an acquired brain injury. You act as Public Guardian for some people with physical disability, but that cohort represents 14.4 per cent; is that right?
DR PEARCE: People would have multiple disabilities, so they wouldn't alone have just a physical disability. So it would be in combination with some other disability.
MS EASTMAN: Okay. Then in terms of the age of people for whom you serve as guardian, three-quarters of clients are aged under 65; is that right?
DR PEARCE: That's right.
MS EASTMAN: And in terms of that cohort of people under 65, can you give us a sense as to whether that's spread evenly across the age groups or is there a particular age group for which most of your responsibility as guardian would apply?
DR PEARCE: It's spread reasonably evenly, but there's certainly more in the 55 to 64 age group.
MS EASTMAN: We have also asked public advocates and guardians about their represented persons who are people of First Nations, and we understand the percentage, in terms of First Nations clients in Victoria, who are subject to guardianship, is about 5.7 per cent on the basis of the information; does that sound right?
DR PEARCE: Yes. It's around 60 clients.
MS EASTMAN: How does that how does that measure against the proportion of First Nations people?
DR PEARCE: It's a significant overrepresentation.
MS EASTMAN: And why is that?
DR PEARCE: I think you have to look at, really, going back, dispossession, stolen generations, intergenerational trauma, a fear of government services and then a deficit model that's applied to Aboriginal people. So, we are more likely to see people with from an Aboriginal background to be found to have deficits or disabilities but we also are seeing an increased number of people actually identifying as First Nations people and, in terms of our office, we are more diligently collecting that information as well.
MS EASTMAN: And you have a particular action plan in relation to inclusion for First Nations people; is that right?
DR PEARCE: Yes. We have had a Koori inclusion and action plan. We have had about three of them starting in 2015.
MS EASTMAN: What's the nature of that action plan and what do you hope to achieve by implementing that action plan?
DR PEARCE: Look, the plan gives us set tasks over the three year period so there's been three of them and starting out with things such as making sure we capture the number of people who identify as Aboriginal and Torres Strait Islander, it's developing a reconciliation statement, the development of what we have called a “Koori lens” over all of our work. So ensuring that we are inclusive. (Audio dropped).
<ADJOURNED AT 4.15 PM TO THURSDAY, 24 NOVEMBER 2022 AT 10 AM