Public hearing 33 - Violence, abuse, neglect and deprivation of human rights (a case study) - Day 2

RESUMED 10.00 AM 

COMMISSIONER McEWIN:  Good morning. We welcome everyone who is attending the Public hearing in the Royal Commission's Brisbane hearing room, as well as those following the proceedings over the live stream. This is day 2 of Public hearing 33 of the Royal Commission. I will now invite Commissioner Mason to do the Acknowledgement of Country. 

COMMISSIONER MASON:  Thank you, Chair. We acknowledge Meanjin Brisbane.  We recognise the country north and south of the Brisbane River as the home of both Turrbal and Jagera nations. We acknowledge the Turrbal and Jagera nations as the traditional owners and custodians of the lands upon which this Royal Commission is sitting. We acknowledge and pay our deep respect to Elders past and present and we acknowledge First Nations young people who one day will take their place as Elders. We extend that respect to all First Nations people and acknowledge their enduring connection to land, sky, seas and waterways. We pay our deep respect to First Nations people here today and who are following this Public hearing online on the mainland and on islands, including Tasmania and the Torres Strait, especially Elders, parents and young people with disability. Thank you, Chair. 

COMMISSIONER McEWIN:  Thank you, Commissioner Mason. Before I hand over to Counsel Assisting, Ms Gillian Mahony, I would like to remind those viewing this hearing that there are non publication and pseudonym directions which apply to certain evidence. The two young men who are the focus of this hearing are referred to by pseudonym Kaleb and Jonathon. The Royal Commission has made directions prohibiting the publication of their names and identifying information in relation to this hearing. Ms Mahony. 

MS MAHONY:  Thank you, Chair. Good morning, Chair and commissioners, and good morning to all the people present in these DRC rooms in Brisbane and those present watching the live stream. Chair and Commissioners, this morning we have two witnesses, or three witnesses. The first witness is Mr Luke Twyford, the Principal Commissioner of Queensland's Family and Child Commission. And then our next witnesses are Dr Sam Bennett and Desmond Lee of the National Disability Insurance Agency. Your Honour, the first witness that I call is Mr Luke Twyford, and he will give an affirmation.

<LUKE TWYFORD, CALLED

COMMISSIONER McEWIN:  Thank you, Ms Mahony. Commissioner Twyford, thank you very much for coming to the Royal Commission and for your forthcoming evidence, as well as for the material that you have provided us. We're grateful for your assistance with our inquiries. I'm Commissioner McEwin, this is Commissioner Mason, Commissioner Ryan. I will ask the associate to administer the affirmation. Thank you. 

THE 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. 

MR TWYFORD:  Yes, I do.

<LUKE TWYFORD, AFFIRMED

COMMISSIONER McEWIN:  Ms Mahony. 

<EXAMINATION BY MS MAHONY

MS MAHONY:  Your name is Luke Twyford, spelt T w y f o r d?

MR TWYFORD:  That is correct. 

MS MAHONY:  And you're the Principal Commissioner of the Queensland Family and Child Commission. 

MR TWYFORD:  Yes. 

MS MAHONY:  And also the Chair of the Child Death Review Board. 

MR TWYFORD:  Yes. 

MS MAHONY:  You prepared a statement dated 3 May 2023 for the purposes of this hearing. 

MR TWYFORD:  Yes, I have. 

MS MAHONY:  That was done pursuant to a notice issued by the Royal Commission. 

MR TWYFORD:  Yes. 

MS MAHONY:  Have you had an opportunity to read your statement recently?

MR TWYFORD:  Yes, I have. 

MS MAHONY:  And do you say that that is true and correct?

MR TWYFORD:  Yes, I do. 

MS MAHONY:  You were appointed to your role on 26 December 2021. 

MR TWYFORD:  That is correct. 

MS MAHONY:  And that's a three year appointment. 

MR TWYFORD:  Yes. 

MS MAHONY:  In terms of the timeframe of your appointment, so you commenced after the death of Paul Barrett in that role? 

MR TWYFORD:  Yes, I did. 

MS MAHONY:  And you commenced in that role after the Commission had prepared certain reports that we'll come to that looked into the personal circumstances of both Kaleb and Jonathon. 

MR TWYFORD:  That is correct. 

MS MAHONY:  So is it the case that you took over from the Principal Commissioner who was involved in the review of Kaleb and Jonathon and the preparation of those reports? 

MR TWYFORD:  Yes. 

MS MAHONY:  In terms of the functions of both the Commission and also the Principal Commissioner, there's   you're one of two Commissioners? 

MR TWYFORD:  That's correct. 

MS MAHONY:  And as the Principal Commissioner, some of your functions include specifically controlling the Commission. 

MR TWYFORD:  Correct. 

MS MAHONY:  Keeping the Child Death Register. 

MR TWYFORD:  Yes. 

MS MAHONY:  And also you've been appointed as the Chair of the Child Death Review Board. 

MR TWYFORD:  That's correct. That's a separate appointment, but it's for one of the two Commissioners of Queensland Child and Family Commission. 

MS MAHONY:  You're currently appointed, as well as being the Principal Commissioner, but the other Commissioner can also be appointed to that role in those circumstances. 

MR TWYFORD:  Could be. One of the two have to be appointed. 

MS MAHONY:  Section 9(1) of the Act   and the Act that I'm referring to is the Family and Child Commission Act 2014 Queensland. That's the Act that sets up the Family and Child Commission. 

MR TWYFORD:  That's correct. 

MS MAHONY:  And your role. And when we go to that Act, sub section 9(1) sub section (a) talks about providing oversight of child protection systems; is that correct? 

MR TWYFORD:  That's correct. 

MS MAHONY:  As well as having to promote and advocate for the safety and wellbeing of children and young people. 

MR TWYFORD:  Yes. 

MS MAHONY:  Especially children that are in need in protection or in the youth justice system? 

MR TWYFORD:  Correct. 

MS MAHONY:  One of your other functions at sub section (i) is to analyse and evaluate at a systemic level policies and practices relevant to the child protection system and the performance of relevant agencies in delivering services. 

MR TWYFORD:  That's correct. 

MS MAHONY:  Can you, bearing in mind those particular functions   and they're only a snippet of the work that you do as Commissioner and within the Commission   can you describe what your overarching role is? 

MR TWYFORD:  So the overarching role of the Queensland Family and Child Commission and myself as the Principal Commissioner is to provide advice to the government based on analysis, oversight, reviews, surveys and other work, on the current performance of Queensland's child protection system. 

MS MAHONY:  Can I just ask you just to slow down a little bit. 

MR TWYFORD:  I'm sorry. 

MS MAHONY:  Just in terms of things being recorded, and we also have interpreters today, including the live stream. Thank you. 

MR TWYFORD:  So to analyse and conduct reviews into the performance of the child protection system, including the provision of advice to both the Minister and government, as well as departmental leaders on possible and actual improvements required for the safety of children and families. 

MS MAHONY:  So in that regard, if we were to generally characterise it, you have an overarching role of identifying systemic issues? 

MR TWYFORD:  That's correct. 

MS MAHONY:  And addressing systemic issues? 

MR TWYFORD:  That's correct, and the Act is deliberately broad in its long list of functions, given that it is a role that's meant to work across portfolios in traditional government   work across traditional government silos to provide holistic advice on how to make improvements to the safety and wellbeing of Queensland's children and families. 

MS MAHONY:  And when you talk about the traditional silos, are you talking about how some government agencies may work within their own sphere   they're a silo and they may not necessarily cross over and engage with other agencies?

MR TWYFORD:  That is correct. 

MS MAHONY:  So part of your role is to try and look at systemic issues by breaching those silos? 

MR TWYFORD:  Correct. 

MS MAHONY:  Can you just explain to the Chair and the Commissioners how the Commission determines what it will address? 

MR TWYFORD:  So, there is a whole range of mechanisms that we employ, but within the Act, it is as a statutory independent authority, upon myself and the other Commissioner and our workforce, to identify areas where we believe there are opportunities for improvement to the system, and in order to do that, we draw on the views of departmental frontline workers, people in the sector, the lived experiences of the people we engage with, as well as a wealth of data that government collects and produces. So, we have a role in synthesising the data and performance reports that departments publish, and we conduct community surveys and frontline worker surveys, but it is, in summary, a self generated process of identifying where we can make a difference, and then determining what work to do. There's a couple of   

MS MAHONY:  Can I can just stop you there at that point. So, in terms of the self generated work, it is always referable back to section 9, is it   

MR TWYFORD:  Absolutely. 

MS MAHONY:    in the end?

MR TWYFORD:  That's correct. 

MS MAHONY:  If I can just draw your attention to sub section 9(2) which provides that:

    "It is not a function of the Commission to investigate the circumstances of a particular child, young person or family or to advocate on their behalf." 

Do you see that provision as a limitation on your role? 

MR TWYFORD:  It's a limitation on some of the ways in which we would choose to do our work, but it is re emphasising that the Commission is there for systemic findings and systemic learning. So, it provides us with the ability to step above being drawn into individual cases and to look at the compilation of issues across Queensland and provide advice strategically, as I've said, across multiple portfolios and funding streams.  But in doing that work obviously we do need to understand individual cases that are part of the system. 

MS MAHONY:  Isn't it fair to say that an individual circumstance may squarely identify and flag significant or at least even important systemic issue or issues? 

MR TWYFORD:  Yes. 

MS MAHONY:  And without being able to look potentially at an individual, you may be missing opportunities to perform your role by looking at systemic matters. Is that a fair statement? 

MR TWYFORD:  I think that's a fair statement. There's nuance in the reason why we would look into individual circumstances, and when we bring it back to section 9, we're looking   I would suggest we're looking into individual cases to make system findings and system learnings, distinct from individual advocacy in that case. 

MS MAHONY:  So, looking to the example of Kaleb and Jonathon, that exercise that you undertook as part of your powers in section 9, that came from a direction from your Minister, which is the Attorney General; is that correct? 

MR TWYFORD:  That is correct. 

MS MAHONY:  So, that direction is by reference to section 22 of your Act? 

MR TWYFORD:  Correct. 

MS MAHONY:  Could you have conducted the review into the specific circumstances of Kaleb and Jonathon without that direction? 

MR TWYFORD:  No. We would not be able to specifically look at an individual case and produce a report on an individual, or two individual circumstances under section 9, part (2) of the Act. 

MS MAHONY:  And by reference to what at least this Disability Royal Commission is looking at as part of this hearing, and by reference to what your own inquiries found, had you not had that direction, and had you not had the capacity to self drive that particular review, would that not have been very great missed opportunity? 

MR TWYFORD:  Yes, it would have, absolutely. There are a couple of exceptions I wanted to raise in our Act where we do have the power to look into individual circumstances and that's in the Child Death Register, so the ability to collect information to ensure that the Child Death Register is accurate, and the second is the Child Death Review Board, which is specifically designed to look into individual cases. 

MS MAHONY:  But both of those are looking at circumstances where a child has passed? 

MR TWYFORD:  That's correct. 

MS MAHONY:  So it's looking at   reflecting about what could have happened to stop a death, as opposed to looking at what is currently happening to stop a future death? 

MR TWYFORD:  That's correct. 

MS MAHONY:  Doesn't importance or the example of the review undertook in respect of Kaleb and Jonathon drive home the need to have at least some greater flexibility in terms of whether you can look at individual cases to the extent that they have the potential to drive into systemic matters? 

MR TWYFORD:  Yes. 

MS MAHONY:  In terms of how you decide the focus of your work, you've spoken about working with other agencies and breaking down silos. Are there formal or informal reporting processes in that place that allow that to happen? 

MR TWYFORD:  They would be mostly informal. We are establishing formal mechanisms, particularly with the Office of Public Guardian and the Ombudsman but I would not call them formalised yet where there is a published memorandum of understanding or procedures. We do have an advisory group council and group and have regular meetings with those other statutory officers, but I would not class them as formal. 

MS MAHONY:  You've just mentioned memorandums of understanding. Is there some work in progress to try and shore up such arrangements to assist in the sharing of appropriate information?

MR TWYFORD:  Yes, there is. 

MS MAHONY:  Can I ask you how far are you into that process and also is your Act sufficiently robust to allow those kind of processes to be completed? 

MR TWYFORD:  They are at the drafting stage.  They are not yet at the sharing of drafts between the Ombudsman, in particular, and the Office of the Public Guardian, but conversations have occurred where there is agreement on the nature of information that needs to be swapped. To address the second part of your question, there is still the limitation on the Commission to be able to access confidential information so where, for example, the Ombudsman or Office of Public Guardian and the Human Rights Commissioner are dealing with individual complainants and complaints, and in my role I would want to understand that thematic issues or the risks that are arising in those complaints, I'm looking for a strategic advice to me on where to focus the Commission's attention, but I am limited in being able to access the individual complaints that are giving rise to those strategic systemic issues. 

MS MAHONY:  And that is because of   is it section 35 under your Act that states you cannot require confidential information? 

MR TWYFORD:  Correct. 

MS MAHONY:  How does   what does that mean in practice? What information can you not access as part of your   the performance of your work? 

MR TWYFORD:  So section 35 enables me to request information from departments in relation to my functions, and it compels a person served with a notice to produce information in alignment with my instrument, but the subset clause to that section is that it does not apply to confidential information, which would be relevant case material for any individual receiving a child protection service or a disability service or an education service. 

MS MAHONY:  So, for example, in respect of Kaleb and Jonathon would you have been   I withdraw that. Could you or did you receive information from Child Services about work that they had done with Child Services that contained personal information about them? 

MR TWYFORD:  Sorry, is that question specific to the case or   

MS MAHONY:  Yes. 

MR TWYFORD:    conceptual? 

MS MAHONY:  It is. 

MR TWYFORD:  So we did not request   formally request confidential information from the department because of that clause but also because of the way our Terms of Reference for that review were designed that acknowledged we could not access or request confidential information. 

MS MAHONY:  So, does that suggest then   also your answer suggests that, in practice, you would not go down the path of requesting confidential information because of the limitations of section 35? 

MR TWYFORD:  I would say that is correct. There are times when we do request access to case files for our reviews and are at times granted access when it is, in the views of the appropriate Director General, agreeable to do so. But as a general rule, the line between sensitive case files and our ability to access them is pretty clear. 

MS MAHONY:  Does the same limitation apply to a Child Death Review Board? 

MR TWYFORD:  No, it does not. 

MS MAHONY:  Do you   so there's you in your role as Principal Commissioner cannot request confidential information; correct? 

MR TWYFORD:  Correct. 

MS MAHONY:  But as the Chair of the Child Death Review Board you can request confidential information. 

MR TWYFORD:  I can request it, and I must receive it, yes.

COMMISSIONER RYAN:  Can I just ask a clarifying question. We're referring to something called confidential information and I'm a little unclear as to what that includes and excludes. Can I take it, then, you were asked to inquire into the circumstances of the two boys.  So, are you largely limited to what's available in the media, then, about that matter? 

MR TWYFORD:  It's a good question. The word "confidential" is not defined in our Act but it goes to the case files, the client files   in our operation of how it's been operationalised, goes to the case files and client files of those boys. Our initial request sought the policies, procedures, and internal departmental files relevant to generically how they would approach situation that they were faced with, and that aligned with Terms of Reference 1 in our review. 

COMMISSIONER RYAN:  But in regards to information about the circumstances of the two boys as they were found on the death of their father, would you have been basically limited to what was available in the media? What outside that would you have got information to? 

MR TWYFORD:  Some information that was related from Director Generals and departments such as the NDIA relating to did they have contact, confirmation that they had contact with that child, for example. So, it's not accessing the documents and files within the department but, rather, seeking the department's response to the issues presented. 

COMMISSIONER RYAN:  In terms of really critical stuff like were reports made to that department   for example, there were reports that neighbours and other people have made, reports to the department. You would have had no information about how or when they were made. Would you have had a report on the circumstances in which the young men were found. 

MR TWYFORD:  No. 

COMMISSIONER RYAN:  Almost nothing. Thank you. 

MS MAHONY:  In fact, when you did prepare a report, the first report prepared was titled Terms of Reference 1: A Report Following the Alleged Neglect of Two Young People with a Disability and at page 2 of that report, you   or the writer specifically references there being incomplete information. 

MR TWYFORD:  That's correct. 

MS MAHONY:  So is it the case that the Commission, when acting within the Commission and not within the Child Death Review Board, always has that limitation? 

MR TWYFORD:  Yes. 

MS MAHONY:  So that means that the Commission is never fully receiving, potentially, the full story? 

MR TWYFORD:  On individual cases, that is correct. 

MS MAHONY:  Do you see that as an hindrance to the role when looking at the systemic issues that are driving the individual cases? 

MR TWYFORD:  Yes, I do. And we produced a paper to a review of our legislation calling for that limitation on confidential   confidential information to be looked at, because in order to understand systemic issues, we do need further information on individual cases. 

MS MAHONY:  And certainly   if you need some water, please help yourself   certainly, the Commission would not be adverse to appropriate amendments to address the non-disclosure of confidential information received in the course of your role; correct? 

MR TWYFORD:  Correct. 

MS MAHONY:  And such similar provisions already operate in the Child Death Review Board. 

MR TWYFORD:  That's correct. Section 36 of our Act provides protections for confidential information that my officers do receive as a protection that's already there. 

MS MAHONY:  And the prohibition that applies to the Child Death Review Board, does that power work effectively, as you've seen it? 

MR TWYFORD:  Yes, it does. 

MS MAHONY:  And there's no reason why the same type of capacity to request confidential information with the same limit on non-disclosure could not apply to the Commission; correct? 

MR TWYFORD:  That's correct. 

MS MAHONY:  One of the things that you said just earlier in your work was that your   it's a statutory independent role. 

MR TWYFORD:  Yes. 

MS MAHONY:  It is, however, under section 22 of the Act, subject to the direction of the Minister. 

MR TWYFORD:  Yes. 

MS MAHONY:  And the Minister is the Attorney General; correct? 

MR TWYFORD:  Yes. 

MS MAHONY:  The Attorney General of Queensland. 

MR TWYFORD:  Correct. 

MS MAHONY:  How does that statutory direction operate in practice? 

MR TWYFORD:  So, in practice, I've not experienced a Ministerial direction in the time that I've been in the role, but prior to my arrival, that section was used to require the Commission to conduct reviews into individual cases. So, a Minister would write to the Principal Commissioner, much as like in this case, requesting that the Commissioner undertake a review into an individual circumstance, and to require a report, generally to provide it back to that Minister. 

MS MAHONY:  Does the section 22 direction also relate to the more administrative aspects of your role? 

MR TWYFORD:  I believe it could, particularly in my function to control the Commission.  As a CEO of an entity that receives government money, I think it is important in relation to workplace health safety laws and other requirements that it would be a section of our Act enabling a Minister of government to provide direction. 

MS MAHONY:  Is it possible   you've said that you've not had the experience of being subject to a direction, but it is possible, though, that you could, as part of your role as Principal Commissioner, determine to do a review of a matter relevant to a systemic matter. Could that review be shut down by direction of the Minister, in theory, at least? 

MR TWYFORD:  In theory, I believe it could. 

MS MAHONY:  But to your knowledge, that's never occurred? 

MR TWYFORD:  No. 

MS MAHONY:  What do you see the importance or relevance of not having such a   well, I'll go back a step first. Do you consider it is important in your functions, the section 9 functions where you're looking at systemic matters, for example, not to be subject to Ministerial direction other than to supplement the work that you can do? 

MR TWYFORD:  Yes. There's two parts to that question. I think I have two views I'd like to express. One is that it is absolutely important for the Queensland Family and Child Commissioners to be able to identify risk and explore those risks to children and families and produce evidence in relation to those systemic risks free of interference.  But the second is that there is benefit to a government being able to identify an issue that it would like the Commission to look into, and to signal that it has a concern as a government or it has an unknown   a question that there is no answer to, and to signal that they would like the Commission's resources to be applied to that issue in order to produce advice that they could act on. So, I think if the direction is to request work, I think that is a positive, but I don't think it should, and I don't think it has limited the Commission's own ability to identify where it needs to focus attention. 

MS MAHONY:  But importantly, it shouldn't be able to limit what you can do; correct? 

MR TWYFORD:  Correct. 

MS MAHONY:  In terms of the   something subject to a direction of the Minister, the Child Death Review Board is not subject to direction of the Minister; correct? 

MR TWYFORD:  That's correct. 

MS MAHONY:  That's section 29F, sub section (2), sub section (b). 

MR TWYFORD:  Correct.

MS MAHONY:  So, again, there's an inconsistency in a way in the Act that one aspect of your work is subject to Ministerial direction, but the systemic ones outside of child death is not   is subject to   

MR TWYFORD:  Direction. 

MS MAHONY:    a Ministerial direction.

MR TWYFORD:  That is correct. 

MS MAHONY:  So what are, from your view, the benefits to being able to have a function that allows you to act both independently and impartially in terms of outcomes and your role? 

MR TWYFORD:  So, because the function of the Commission and my functions and powers relate to systemic issues and providing advice across multiple portfolio areas, it's very important that we aren't drawn into the individual needs, wants or desires of any portfolio Minister or area of government at the exclusion of the others. So, the ability to be driven by the evidence and driven by our analysis and what the sector and frontline workers are telling us needs to be fixed empowers us to focus on evidence based reviews and evidence based determination and identification of where we want to focus attention. 

The way in which we then present our findings and our advice, it's very much about choosing whether it is for public consumption, ie, we need to increase community awareness, or whether it's for departmental action, so providing advice to Director Generals in singular or plural, so that collective actions can be taken within the bureaucracy, or whether it's advice to government and Parliament because we need a consistent legislative reform or funding. 

MS MAHONY:  Turning to the report that you   the review that you did into the circumstances of Kaleb and Jonathon, so that was done at the direction of the Minister under section 22? 

MR TWYFORD:  Correct. 

MS MAHONY:  There was Terms of Reference that were created by your predecessor, the former Principal Commissioner, that was approved by the Attorney General. 

MR TWYFORD:  Yes. 

MS MAHONY:  So, that was also a section 22 direction in practice? 

MR TWYFORD:  Yes. 

MS MAHONY:  And your power to investigate, which has been slightly explored already, involved you making requests for information but not being confidential information? 

MR TWYFORD:  That's correct. 

MS MAHONY:  And you've included in your statement a number of letters at Annexures E to I, being the correspondence to the various agencies that you suspected may be able to assist you in your inquiry? 

MR TWYFORD:  That's correct. 

MS MAHONY:  I think we've probably explored the limitation on the information. Is there anything, though, that you wanted to add about what it means in practice for your work in the limitation under section 35 of the Act? 

MR TWYFORD:  I think we've covered that ground. 

MS MAHONY:  In terms of the Child Death Review Board now, there was a suggestion originally that the Child Death Review Board, and this is   I withdraw that. The Terms of Reference set out what the Child Death Review Board would consider; correct? 

MR TWYFORD:  That's correct. 

MS MAHONY:  And Commissioners, this is at Annexure D of the statement on page 1 and page 2. The Child Death Review Board was to establish the system contact points of the family in the years prior to the young brothers' discovery to examine the effectiveness and appropriateness of responses, and that was to include mapping the interactions with agencies involved with the family during periods of heightened vulnerability, and the Child Death Review Board was to identify gaps and opportunities for system improvements to legislation, policies and practice and recommend changes to strengthen the child protection system and to promote the safety and wellbeing of children. Pretty important matters to consider in the circumstances? 

MR TWYFORD:  Absolutely. 

MS MAHONY:  At the time the Terms of Reference were drafted, the Child Death Review Board was being contemplated in legislation, but that legislation had not yet commenced; is that correct? 

MR TWYFORD:  That's correct. 

MS MAHONY:  It contemplated it would commence on 1 July 2020. 

MR TWYFORD:  Correct. 

MS MAHONY:  And it did commence on that date? 

MR TWYFORD:  Yes, it did. 

MS MAHONY:  Now, is this correct:  ordinarily, the Child Death Review Board would not consider the circumstances of Kaleb and Jonathon because it did not relate to their deaths and the death of the father did not fall within their Terms of Reference? 

MR TWYFORD:  That's correct. There's a very clear legislative trigger for what will come to the Child Death Review Board. It is a child that has passed away whilst a child who was known to the child protection system within the 12 months prior to the date of death. 

MS MAHONY:  When the Child Death Review Board was set up, it included, though, a provision similar to the section 22 provision that allowed the Commission to undertake a review, but it allowed a provision for the board to carry out a review in exceptional circumstances? 

MR TWYFORD:  Correct. 

MS MAHONY:  Where the Minister, the Attorney General, makes a request? 

MR TWYFORD:  That's correct. 

MS MAHONY:  So, for the Child Death Review Board to perform the Terms of Reference, it required upon its commencement a referral or a direction from the Minister to do so because it fell outside of its terms? 

MR TWYFORD:  That's correct. 

MS MAHONY:  In July 2020, there was a brief provided by the Attorney General   to the Attorney General by the Commission? 

MR TWYFORD:  Yes. 

MS MAHONY:  And, Chair and Commissioners, that's at Annexure R. And at that point, so July 2020, it was still intended that the Child Death Review Board would undertake the work. 

MR TWYFORD: Yes. 

MS MAHONY:  The subject that we've just explained at points 2 and 3 of the Terms of Reference. 

MR TWYFORD:  That's correct. 

MS MAHONY:  A briefing took place on 20 August, and this is at Annexure T, between the Commission and the Attorney General. That's referred to in a letter from the Attorney General to the Commission. There's been nothing produced in respect of that meeting though by the Commission. You agree with that? 

MR TWYFORD:  Agree. 

MS MAHONY:  Have you looked for material that would fall into what occurred on that date? 

MR TWYFORD:  Yes, we have. 

MS MAHONY:  And did you find anything? 

MR TWYFORD:  We found no documents other than what we've provided attached to my statement. 

MS MAHONY:  So, given that you were not in the role at that time, you're not aware of what happened at that briefing? 

MR TWYFORD:  No, I do not know. 

MS MAHONY:  So, we know, though, on 2 October 2020, the Attorney General informed your predecessor that:

    "It is not intended to refer this matter to the Child Death Review Board."

Correct? 

MR TWYFORD:  That's correct. 

MS MAHONY:  So, the effect of that was that important work was simply carved out and not proceeded with? 

MR TWYFORD:  The work to review the individual circumstances did not occur. 

MS MAHONY:  To your knowledge, has such a review been undertaken since that date, outside of this Royal Commission at least? 

MR TWYFORD:  No, and I think the referral of this case to the Royal Commission occurred pretty soon after that time. 

MS MAHONY:  The absence of an investigation at a State level, notwithstanding there being a layer of a Royal Commission occurring, is that not a deficit in   for Queensland in identifying potential systemic issues at an early stage to prevent something like this occurring into the future? 

MR TWYFORD:  I think that's a   I would answer yes.  We need to understand how these children and father came to be in this situation, and we need to put in place preventative mechanisms and improve systems to ensure it is not currently occurring in other family and that it won't occur again. The Child Death Review Board, when it did commence, has looked into cases related to vulnerable families' access to the NDIS and has made a recommendation about that matter. So, systemically, there is attention being given to the issue, but it's occurring without the detailed knowledge of what's actually occurred to individual children in cases such as this. So, whilst we're making systemic findings, we don't have the case specific detailed content such as that being borne out in this hearing. 

MS MAHONY:  And section 35 of your Act says you won't get that detail. 

MR TWYFORD:  Not from the Queensland Family and Child Commission.

MS MAHONY:  Have you received any information from any agencies that they elected not to undertake their own review of the circumstances of Kaleb and Jonathon because they understood that the Child Death Review Board would be undertaking a review? 

MR TWYFORD:  I don't have specific knowledge of that content, no. 

MS MAHONY:  Is such a   to the extent that position was being taken, would you consider that is an appropriate position for an agency to take?

MS McMILLAN:  I object to that. That's not a proper question for this witness, with respect. 

MS MAHONY:  Your Honour, Chair, in my submission, it is a proper question. The witness is able to comment on systemic issues. His evidence is about parties and agencies operating in silos, and part of his role is to be able to breach those silos. The absence of an individual review would mean that there is a missed opportunity, should the Commission be able to undertake its own review, and knowing the position of agencies is relevant to whether or not it is an appropriate response. 

COMMISSIONER McEWIN:  Ms McMillan?

MS McMILLAN:  With respect, again, it's really not for this witness.  That submission, in any case, can be made.  But, secondly, this would entail, no doubt, this witness having to look at other pieces of legislation as to whether they can carry out reviews. So, I repeat the objection.

COMMISSIONER McEWIN:  The question, though, relates to the role of this Commission and I will allow it. 

MR TWYFORD:  Sorry, I may have lost track of the question. 

MS MAHONY:  Yes. Certainly. The question was that, within your role, have you received any information from any agency that they elected not to undertake their own review?  And to the extent that position was being taken, would you consider it is an appropriate position for an agency to take? 

MR TWYFORD:  I think this case has highlighted the complexity of reviews and Terms of Reference related to reviews and the powers to undertake reviews. The separation between Queensland Family and Child Commission's review under 22 and the powers of the Child Death Review Board play out in the time difference and the fact that Terms of Reference under 22 related to a Child Death Review Board that did not yet exist in practice. The Child Death Review Board practice generally, and in legislation, is that all departments conduct an internal review. Those internal reviews are provided to the board who employ staff to synthesise those reports and reviews, identify gaps and system issues and missed opportunities, to produce a report to the Child Death Review Board that's more holistic. 

That did not play out in this case because the Child Death Review Board process did not occur. I would understand why people would be expecting the Queensland Family and Child Commission and the Child Death Review Board report under these Terms of Reference to be the holistic assessment of this case and would be looking to contribute to that review rather than doing their own. That would make effective and efficient sense to me. And it is incredibly unfortunate that the second part of the Terms of Reference did not occur. 

MS MAHONY:  Can we just move on then to the report following your review. I've mentioned the first report was titled Terms of Reference 1:  A Report Following the Alleged Neglect of Two Young People with Disability. So, that was a 16 page report with annexures.  It identified Kaleb and Jonathon by name? 

MR TWYFORD:  That's correct. 

MS MAHONY:  And it examined, at least at a base level, their   the circumstances as they were found on that day? 

MR TWYFORD:  Yes. 

MS MAHONY:  But the report expressly did rely and refer to their lived experiences; correct? 

MR TWYFORD:  Refer to, yes. 

MS MAHONY:  Referred to. 

MR TWYFORD:  Yes, it did. 

MS MAHONY:  And that was relevant in making findings about the systemic issues? 

MR TWYFORD:  Correct. 

MS MAHONY:  So, that report was provided to the Attorney General on 14 January 2021. Are you aware whether that report was shared with any relevant Ministers at all? 

MR TWYFORD:  No, I'm not. 

MS MAHONY:  And in terms, then, of that report, are you aware whether it was ever publicly published? 

MR TWYFORD:  To the best of my knowledge, it has not been publicly released or published. 

MS MAHONY:  And whose decision was that not to publish that report? 

MR TWYFORD:  So, that was a decision of the Minister at the time. 

MS MAHONY:  So, that's another section 22 decision? 

MR TWYFORD:  That's correct. 

MS MAHONY:  What is the Commission's position on publishing reports of that nature, even if one was to insert pseudonyms to limit identification or stop the identification of the person's name? 

MR TWYFORD:  Yeah. Because this is a   a report produced under a section 22 request where that request specified that the report was to be provided to the Minister, it was not for the Principal Commissioner of the time or the Commission to publish that report. When we self generate reviews and we produce reports, we do, as a general rule, publish them.  And also where we do detailed reports that are not for public release, it does not prevent us from doing summaries, fact sheets, social media campaigns to raise awareness or pinpoint the specific issue that we feel needs to be addressed.  But when it is a section 22 report, much like our annual reports   all three annual reports, Child Death, Queensland Family and Child Commission and Child Death Review Board   and our section 40 report, they are provided to the Minister to table in Parliament and we do not publish them until that tabling has occurred. 

MS MAHONY:  Now, the report was provided to the Attorney General in January   14 January 2021   and on 8 July 2021, so almost four months later, your office received a call at 4 pm; correct? 

MR TWYFORD:  That's correct. 

MS MAHONY:  And it was from the Attorney General's office? 

MR TWYFORD:  I believe it was the Attorney General's Department, an officer in the department. 

MS MAHONY:  And what they were asking for was a redacted version or a more concise version of the report that they had received eight months ago? 

MR TWYFORD:  A summary version. 

MS MAHONY:  And when did they want that by? 

MR TWYFORD:  The next day. 

MS MAHONY:  So they had had it for eight months and they wanted a new report   I withdraw that. They wanted a different form of your report overnight. 

MR TWYFORD:  A de identified summary version, yes. 

MS MAHONY:  And your office provided that the next day. 

MR TWYFORD:  That's correct. 

MS MAHONY:  That's a report titled Summary Report, Keeping School Aged Children with Disability Safe. 

MR TWYFORD:  That's correct. 

MS MAHONY:  And that report has been published? 

MR TWYFORD:  Yes. 

MS MAHONY:  Commissioners, for your reference, the first report that was under Terms of Reference 1 report, that is at Tab B.2.225 and the Summary Report is at Tab B.2.229. 

COMMISSIONER RYAN:  I missed the date on which the request was made for the summary. 

MS MAHONY:  The request was made on 8 July, and a summary report was provided the next day on 9 July. My apologies. The year? 

COMMISSIONER RYAN:  Yes. 

MS MAHONY:  Sorry. 2020. My apologies. So, 8 July 2020 and 9 July 2020. My apologies for that. Turning to the Summary Report, so that was a deidentified report? 

MR TWYFORD:  That's correct. 

MS MAHONY:  So it made no reference to Kaleb or Jonathon? 

MR TWYFORD:  No, it did not. 

MS MAHONY:  And it provided no examples of their lived experiences? 

MR TWYFORD:  No. 

MS MAHONY:  Are you able to say why pseudonyms were simply not applied? 

MR TWYFORD:  I was not present at that time but there are multiple other reports and instances where very similar summaries of more detailed reports were produced, and it is my belief that it hinges on the role of the Commission not to inquire into the specific circumstances of individuals, and that, therefore, our public reports are reframed to be system focused reports. 

MS MAHONY:  So it's driving back to sub section (2) of section 9? 

MR TWYFORD:  That's correct. 

MS MAHONY:  Do you agree, though, that in terms of having a document that actually presents a lived experience, it can assist agencies to better understand how systemic problems arise and why they need to be addressed? 

MR TWYFORD:  Absolutely. 

MS MAHONY:  If I can just ask you some questions about the approach of the Commission. Does it see itself as a human rights based organisation or at least performing its task from a human rights perspective? 

MR TWYFORD:  Yes, it does and we have an explicit commitment as part of that to the rights of children and the United Nations Convention on the Rights of a Child forms a very key part to how we approach our work. 

MS MAHONY:  And in terms of the human rights, what are the rights the Commission specifically focuses on? 

MR TWYFORD:  In terms of human rights? 

MS MAHONY:  Yes. 

MR TWYFORD:  Well, it's the collective of them and, more importantly, from our legislative functions how government systems are impacting on those rights. 

MS MAHONY:  And your role is also one that gives a voice to children? 

MR TWYFORD:  Correct. 

MS MAHONY:  To achieve that, does the Commission   you've given some evidence already that the Commission works with other agencies and in your statutory review of your   withdraw that   into the review of your legislation, you make reference to a watch house   

MR TWYFORD:  Yes. 

MS MAHONY:    review.  Did that review come out from engagement with other agencies? 

MR TWYFORD:  Yes it certainly did. So, the Office of the Public Guardian and the Ombudsman and children   sorry, the Human Rights Commissioner in Queensland have all been vocal both publicly and with myself and Co Commissioner Natalie Lewis in relation to individual circumstances of children being detained in watch houses. It was the combination of the multiple individual cases that led to us deeming that to be a systemic issue, and we are now inquiring into the causes and impacts on children for both why are they being detained in watch houses for extended periods, as well as the impact upon them. 

MS MAHONY:  So, going back to your evidence before about having memorandums of understanding because of the limitations in the Act about getting information, that need speaks to those type of circumstances? 

MR TWYFORD:  Absolutely. 

MS MAHONY:  Looking just at the Human Rights Act, that applies to   I withdraw that. The Human Rights Act 2019 of the Queensland Act   

MR TWYFORD:  Yes. 

MS MAHONY:    that applies to decisions made by the Commission? 

MR TWYFORD:  Absolutely. 

MS MAHONY:  And applies to you in your role   exercising your role as Commissioner? 

MR TWYFORD:  Yes. 

MS MAHONY:  What impact has that Act had on your role since the   your position and your body came into being? 

MR TWYFORD:  So, I commenced in the role when that Act was already in operation, so I was not present for the implementation to provide you clear advice on what changed, but certainly in framing our projects and providing advice, we are conducting human rights impact assessments in relation to our proposals and our actions, and specifically we have produced and are doing child right   human   sorry, child rights impact assessments in addition to the human rights impact assessments for our own work, but we're applying that rights based lens to many of our projects. 

The most recent public one of those was Yarning for Change where we spoke to young people in our youth detention centres in Queensland, an upcoming work being led by Commissioner Lewis relates to a child rights report looking at how government systems and funding is upholding the rights of Queensland's children. 

MS MAHONY:  And in terms of that rights base, how does that also play in with the theme of your role in terms particularly when looking at the systemic issue for children and families? 

MR TWYFORD:  Yes. So, our recent submission in relation to our Act quite clearly called for or identified the benefit that would occur if our Act gave a function to the Commission to specifically focus on rights and child rights, as well as the rights of First Nations people in Queensland. Because our Act doesn't have that explicit function or power to focus on rights, we're more drawing on our current functions to protect, safeguard and advocate for the safety and wellbeing of Queensland's children and families and, within that function, taking a rights based approach to our work. 

MS MAHONY:  In terms, then, just going finally to the legislative review that you've conducted, there was a number of changes that your officers recommended. They speak to the Ministerial direction, the capacity for greater information gathering   

MR TWYFORD:  Yes. 

MS MAHONY:    for example. Are there any matters that you wish to speak to, particularly as relevant to your   to the Commission's experience of its review for Kaleb and Jonathon? 

MR TWYFORD:  Well, to summarise what I believe we've been discussing, it's the contradiction that there are powers to compel the production of confidential information and conduct case specific reviews, but only when a child has passed away. If we are to create a body that explores recent issues for children and families in Queensland, those powers could be better applied to times when there are non death incidents or when there are clear risks in a system where the review, based on a child death, does not occur. 

So, applying the powers particularly to compel confidential information, however defined, to enable system learning is something that we have called for and I strongly support. And, secondly, the provision that says that it is not the role of the Commission to look into or advocate on individual cases needs more nuance so that whilst it would remain the role of the Commission to look at systemic issues, we certainly need the ability to draw on, collect and amplify individual cases of lived experience. 

MS MAHONY:  Just finally, I'll just clarify a couple of the dates that I went through before. Your report with the annexures, the first report, was provided on 14 January 2021. A request for a redacted or   a redacted report was made on 8 July 2021. And that was provided by your office on 9 July. And that tabled report was published on 20 August '21? 

MR TWYFORD:  Yes. 

MS MAHONY:  They're the questions I have. 

COMMISSIONER McEWIN:  Thank you. Ms McMillan. 

MS McMILLAN:  Yes, I just have a question arising out of Counsel Assisting's cross examination. Mr Twyford, it's the case, isn't it, under your Act   your Act   29I, the Minister can request specifically the board to inquire into a child, that's not died but had been subjected to significant injury; that's correct? 

MR TWYFORD:  That's correct. 

MS McMILLAN:  Yes, so that may well cover a situation where they still had contact with the Department of Child Safety within those guidelines, but also incorporates where there's been serious injury as well? 

MR TWYFORD:  That's correct. 

MS McMILLAN:  Yes. Second issue I had, have you got a copy of your statement there. 

MR TWYFORD:  Yes, I do. 

MS McMILLAN:  Could you look at Annexure U, please, the last annexure.

MR TWYFORD:  Yes. 

MS McMILLAN:  Mr Twyford, I know from your statement you didn't start with the QFCC until December so this letter was written to your predecessor, Ms Vardon. Could you have a quick read of that annexure to yourself, please. 

MR TWYFORD:  Yes. 

MS MAHONY:  Mr Twyford, is it the case, as far as one   because part of the letter is redacted   that the Terms of Reference 1 review report is the same report that the Attorney is referring to in paragraph 3, where she says she shared the reports with relevant Ministers, et cetera. 

MR TWYFORD:  Yes, that would be correct. 

MS McMILLAN:  Yes, alright.  Thank you. I've got nothing further.

COMMISSIONER McEWIN:  Thank you. Ms Mahony, do you have any further questions? 

MS MAHONY:  No. 

COMMISSIONER McEWIN:  Thank you.  Commissioner, I will ask my colleagues now whether they have any questions for you. Commissioner Mason. 

COMMISSIONER MASON:  No, thank you.

COMMISSIONER McEWIN:  Commissioner Ryan?

COMMISSIONER RYAN:  Yes. Mr Twyford are you familiar with a letter that we've received dated 1 June 2020 to your predecessor Cheryl Vardon which basically referred the matter to   are you familiar with that letter? I'm just not quite sure whether we received it from you or otherwise.  It's a letter dated 1 June 2020. It's a letter from the Attorney General   the then Attorney General. 

MS MAHONEY:  It's Annexure C. 

COMMISSIONER RYAN:  Annexure C, sorry. 

MR TWYFORD:  Yes.

COMMISSIONER RYAN:  Are you familiar with that?

MR TWYFORD:  Yes, I am. 

COMMISSIONER RYAN:  To some extent, our conversation or the examination of this issue almost proceeded as if some of these things weren't known at the beginning. Is it not true that in that letter, I think it's the last paragraph of the letter, the Attorney General said to your predecessor   she said, talked about the Act   the law under which the investigation would take place, and she said   look, I'd say as a preliminary to this, the letter refers to an announcement by a Minister on 29 May. That's in the second paragraph. And it says that   and then it appears that as a result of that announcement, the Attorney General has written referring this matter, and in the media at the time, the Minister apparently said:

    "The public want answers. So do we. If there is any place in the system that has failed our children, we can make that system right, and that is what we've asked the Commissioner to do."

Now I note in the last paragraph of this, the Minister says to you   this is the Attorney General, says:

    "I acknowledge that this may limit the extent and scope of the QFCC's review."

Do you see that? 

MR TWYFORD:  Sorry, is that on the first or second   

COMMISSIONER RYAN:  Last paragraph, first page:

    "I understand that the QFCC generally relies on section 27 of the Act."

And then refers to the fact that it doesn't apply to certain other powers. 

MR TWYFORD:  That's correct. 

COMMISSIONER RYAN:  And then it says:

    "I acknowledge that this may limit the extent to which the QFCC..."

So, it would appear that the   would you agree that the Attorney General is aware of the limitations of the Act that we have been discussing this morning, that you didn't have full powers to act as confidential information? 

MR TWYFORD:  Yes, in that paragraph it's referring   I believe it's referring to Terms of Reference 1 that's attached to that letter, which is around the Queensland Family and Child Commission leading the policy procedure review, acknowledging the limitations that we will not be able to access confidential information for that part, and then goes on to say that the Child Death Review Board would lead Terms of Reference 2 and 3, where the confidential information would be forthcoming. 

COMMISSIONER RYAN:  But she didn't say it would be immediately. She said it was a possibility that it could be referred   

MR TWYFORD:  Correct. 

COMMISSIONER RYAN:    at a later time, and then I think she even anticipated she might do that in the future. So, the initial inquiry that was set up into the circumstances under which the young boys were found anticipated that, first of all, there was a limitation in your ability to conduct a full and thorough review, but it indicated   it seemed to anticipate that at some stage or other this would be fixed by reference to the Child Death Review   sorry, yes, the Child Death Review Board? 

MR TWYFORD:  Correct. 

COMMISSIONER RYAN:  And then it was made clear, I think   I'll just   on 2 October 2020, the Attorney General   I've forgotten   perhaps somebody can help me what that tab is   a letter dated where the Attorney General advised the matter would not be referred to the CRDP and she didn't give any reasons but she indicated that she wouldn't refer it.

MS MAHONY:  Annexure T. 

COMMISSIONER RYAN:  So it's not as if the government wasn't aware of the limitations and they did, in fact, give you that instruction:  They didn't intend to further follow it up. And then on 30 March 2021, the Attorney General requested that the Principal Commissioner defer any broader discussion of the report until the government had an opportunity to formally consider something. I'm not quite sure from the letter what it is, but it's quite clear that the   what did the words mean or what would you have understood those words to mean that:

    "I want..."

Regarding:

    "I would ask that broader discussion regarding the reports be deferred until the government had further..."

What would you have understood that discussion to defer broader discussion to mean? 

MS McMILLAN:  I object to that question, with respect. This is to his predecessor.  Mr Twyford wasn't available. So, with respect, it's not fair to him to ask him to interpret the author of another document to another addressee. 

COMMISSIONER RYAN:  That might be fair, but I was really just asking if you received an instruction of that nature, what do you think it meant? I mean, I can't work out what it meant. But would you be able to work out what that might have meant to your predecessor?

MS McMILLAN:  Well   again   

MS MAHONY:  If I can be heard on that objection.  My friend has objected to the very matter that she herself asked a question on. My friend asked this witness to interpret a letter, and this very letter, the paragraph above it where it says:

    "I have shared the report."

So, it was asked what that was understood. It follows that this witness can be asked what he understands the next sentence means. 

COMMISSIONER RYAN:  I agree. Over to you, Mr Chair, are you allowing the question? 

COMMISSIONER McEWIN:  I do allow the question. Do you want to be more specific? 

COMMISSIONER RYAN:  Yes, I think that   I couldn't have said it better. You have been asked to comment on the letter already as to what the letter meant. I was simply asking what another paragraph of the letter means? 

MR TWYFORD:  So, I would understand   sorry, am I okay to answer? 

COMMISSIONER RYAN:  Yes. 

MR TWYFORD:  So, I would understand that to mean that the report is formally with government and that the role of the Principal Commissioner and Commission has ceased whilst government considers that report. 

COMMISSIONER RYAN:  Yes. Thank you. That's all the questions I had.

COMMISSIONER McEWIN:  One question, Commissioner, from me. In terms of your community engagement work, the way you engage with the community about your Commission, what relationship or engagement do you have with disability advocacy organisations, disability   disabled people's organisations, the representative organisations. Can you give me a bit of an idea? 

MR TWYFORD:  Yes. So, we've recently renewed our advisory council that we are allowed to establish under the Act. That includes   I'll have to take advice but one or two peak disability bodies in Queensland as part of our overall 30 member advisory council that now meets quarterly to provide advice to the Commission on what key issues are and emergent issues are occurring in Queensland. 

We have a youth advocacy network of around 30 young people, and we're increasing that size to 50 young people in the next six months where any young Queenslander between the age of 14 and 24 can apply to work with us, and we will actually pay them for the work that they do to advocate for issues that are near and dear to them. There are some members of that youth advocacy network who have identified disabilities, but I am not yet aware that we have funded them to produce advocacy pieces in their own right, more so they've been involved in our submissions to Parliamentary committees, including the Mental Health Select Committee and established committees in Parliament that consider bills. 

So, recent amendments to the Youth Justice Act, we engaged our young people, and one case study I could point out to you was around a young person's contribution to that submission on the cognitive ability of young people caught in the youth justice system, by way of example. 

COMMISSIONER McEWIN:  Thank you. Thank you very much, Commissioner, for your contribution to the Royal Commission. You may be excused. 

MR TWYFORD:  Thank you. 

<THE WITNESS WITHDREW 

COMMISSIONER McEWIN:  Ms Mahony, what's next? 

MS MAHONY:  Chair, if we could have a morning tea adjournment, and after that, we will be reconvene the hearing room with the next witnesses. 

COMMISSIONER McEWIN:  So the time is now five past 11. So, you are suggesting 20 past 11 that we come back?

MS MAHONY:  It may be half past. 

COMMISSIONER McEWIN:  Half past. Okay. We will come back at half past 11. Thank you. 

ADJOURNED 11.07 AM 

RESUMED 11.33 AM.

COMMISSIONER McEWIN:  Ms Eastman.

MS EASTMAN:  Thank you, Commissioner. Our final witnesses for today are representatives from the National Disability Insurance Agency, the NDIA. I welcome back Dr Sam Bennett, who you will recall has previously given evidence at the Royal Commission at Public hearing 17 and Public hearing 30, and welcome Mr Desmond Lee, who I think this is the first time he has given evidence at the Royal Commission. Commissioners, they will each take an affirmation.

<SAM BENNETT, CALLED

<DESMOND LEE, CALLED

COMMISSIONER McEWIN:  Thank you, Ms Eastman. Thank you, Dr Bennett and Mr Lee, for coming to the Royal Commission. Dr Bennett for the third time, so we are grateful for your ongoing contribution to the work of our Commission. I'm Commissioner McEwin, this is Commissioner Mason and Commissioner Ryan. I understand, Dr Bennett, you will take an affirmation and, Mr Lee, you will take an oath, so I'll ask the associate to read out the affirmation for you, Dr Bennett, first. 

THE 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 BENNETT:     

<SAM BENNETT, AFFIRMED

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

MR LEE:  I do.

<DESMOND LEE, SWORN

COMMISSIONER McEWIN:  Thank you both.  Ms Eastman will now ask you questions.

<EXAMINATION BY MS EASTMAN SC

MS EASTMAN:  Thank you, Commissioner McEwin.  Dr Bennett and Mr Lee, you've together prepared a joint statement for the Royal Commission dated 26 April 2023. 

DR BENNETT:  Yes. 

MR LEE:  Correct.

MS EASTMAN:  And have you both had an opportunity to review the statement?

DR BENNETT:  Yes. 

MR LEE:  Yes.

MS EASTMAN:  And are the contents of the statement true and correct?

DR BENNETT:  Yes. 

MR LEE:  Yes, they are. 

MS EASTMAN:  Dr Bennett, as I said, you've given evidence on a number of occasions, and you continue to hold the position of General Manager, Policy, Advice and Research at the NDIA. 

DR BENNETT:  I do. 

MS EASTMAN:  And in the statement you referred to the earlier statement that you provided to the Royal Commission dated 11 November 2022 which was relevant to Public hearing 30, concerning guardianship and supported decision making. 

DR BENNETT:  Correct. 

MS EASTMAN:  Mr Lee, welcome to the Royal Commission. You hold the position of Acting General Manager, National Delivery at the NDIA. And you've held this role since January this year. 

MR LEE:  Correct. 

MS EASTMAN:  And prior to taking on this role, you've worked with the NDIA since August 2016. 

MR LEE:  That's correct. 

MS EASTMAN:  And you've held some senior executive roles in Queensland with respect to service delivery; is that right? 

MR LEE:  That's correct. 

MS EASTMAN:  And you've also performed the role of Queensland State Manager. 

MR LEE:  Mm hmm. 

MS EASTMAN:  And you held that role from August 2018? 

MR LEE:  That's correct. 

MS EASTMAN:  Were you in the role of Queensland State Manager at the time this case study is looking at, so from 2018 through to 27, 28 May 2020? 

MR LEE:  Yes, that's right. 

MS EASTMAN:  And in terms of your role as State Manager, did you have responsibilities in relation to the transition and general rollout of the NDIS in Queensland? 

MR LEE:  Yes, that's correct. 

MS EASTMAN:  And did you also have particular functions in overseeing how that rollout occurred? 

MR LEE:  Yes, I did. 

MS EASTMAN:  And what other functions, in addition to the transition or the rollout, did you play as the Queensland State Manager? 

MR LEE:  Counsel, in general, ensuring the development of the agency presence in Queensland, to be able to undertake the transition of Queensland participants to the Scheme and be ready to intake new participants to the Scheme and be ready to intake new participants to the Scheme over the course of a three year transition in Queensland. 

MS EASTMAN:  And before joining the NDIA, had you had any professional experience working in the area of disability services? 

MR LEE:  I did, Counsel. Prior to joining the Scheme in August 2016, I worked for some eight years or so with the Queensland Government disability services and with other related services in the Queensland Government. 

MS EASTMAN:  So during the time that you had the General Manager role, would you say that you were familiar with the particular agencies and departments within Queensland that had responsibility for services and support of young people with disability? 

MR LEE:  Yes. 

MS EASTMAN:  Thank you. Now, your involvement in relation to Kaleb and Jonathon did not involve any direct relationship with either of them or their family; is that right? 

MR LEE:  That's correct, Counsel. 

MS EASTMAN:  And are we right in understanding that your involvement commenced on or around 28 May 2020, following the media reports of Kaleb and Jonathon's father being found deceased, and for the two young men at the time being found in the fairly parlous state; is that right? 

MR LEE:  That's correct. 

MS EASTMAN:  And because the circumstances of the family had attracted media attention, that meant that as the Queensland General Manager you had a responsibility of ensuring that relevant information was collected within Queensland, so the NDIA would be able to respond to the media reports; was that part of your job? 

MR LEE:  Not a direct responsibility, Counsel, but very strong association with the governance mechanisms that the agency had in place with the Queensland Government, yes. 

MS EASTMAN:  And if a matter such as Kaleb and Jonathon and the circumstances of their father was a matter of public attention in the media, that is the type of matter that might be escalated to the higher levels within the NDIA up to the level of the CEO; is that right? 

MR LEE:  Yes, that's correct. 

MS EASTMAN:  And it might be the type of matter that might require the senior managers in the NDIA to report to the Minister as to how, why, and what had happened? 

MR LEE:  Yes. 

MS EASTMAN:  And you became aware, either on or shortly after 28 May 2020, that Kaleb was an NDIS participant, but his younger brother, then 17, was not an NDIS participant; is that right? 

MR LEE:  That's correct. 

MS EASTMAN:  And in terms of your knowledge of the circumstances of both Kaleb and Jonathon, are we right in understanding that, for the most part, your knowledge is based on review of documents and what others told you within the NDIA as they collected relevant information in those immediate days after 28 May? 

MR LEE:  Yes, that is correct. 

MS EASTMAN:  And are we right in understanding that neither of you personally were involved in the review that was conducted by the NDIA? 

MR LEE:  Yes. Correct. 

MS EASTMAN:  Alright. I do want to ask you some questions about the review, but I thought I might start, Commissioners, with just going back in time and to make sure that we're all clear about the nature of Kaleb and Jonathon's relationship, if I can call it that, with the NDIA prior to their father's death. So, I might start with that. As you're aware, the NDIA did conduct a review, and I'm going to rely on facts as found in the NDIA review in terms of the circumstances of both Kaleb and Jonathon and their relationship with the NDIA. I can say to you, Commissioners, there's a vast number of documents that sit behind this, so I think it may be of assistance to all to work with the NDIA review report. So, have you both got a copy of the report? 

MR LEE:  Yes. 

MS EASTMAN:  Alright. And I'll start with Kaleb first. And there's matters that are recorded at page 20 of the NDIA report, if that assists you in terms of any of the factual circumstances. I really, essentially, want to run through the dates for the most part. So, it appears from the report that the process for Kaleb to become an NDIS participant commenced on or around 20 December 2016. The process of becoming a participant, whether we call it application or otherwise, is described as an access met decision; is that right? That's the language you use? 

MR LEE:  That's the   that's correct, Counsel. So, the termination on a   on an application for access would be called access met or access not met, yes. 

MS EASTMAN:  So, when we look at the report and there's language such as "access met decision", if I could put that into a layperson's language, that means that an application has been made to become an NDIS participant, that the process of providing the information to the NDIS to determine whether the person qualifies   and there's some steps involved in that   and that the CEO or the CEO's delegate then makes a decision that access is met, and that is, in a sense, confirming that the application to become a participant has been successful. Is that a lay   a fair layperson's summary? 

MR LEE:  Yes. 

COMMISSIONER McEWIN:  When you refer to any particular aspects of the review report, would that be available up on the screen or will you point us directly to the relevant part at the time? 

MS EASTMAN:  I'll point you to the relevant time. Commissioners, I'm not reading from the report. I'm using the report so that you all have the relevant dates, but I will refer to a particular paragraph or a page number if I need you to look at something relevant. I'm partly doing this to make sure that I don't take up too much time reading parts of the report, but just really focussing on the key dates and steps. But if there's any concerns, Commissioners, let me know and I'm happy to slow down.

COMMISSIONER McEWIN:  Thank you for clarifying that. 

MS EASTMAN:  So at the time Kaleb becomes a participant, so he's   the application is accepted, we understand that occurred by 3 March 2018, and at that time Kaleb was still 17 years old? 

MR LEE:  Correct. 

MS EASTMAN:  The next step, having met access and become accepted as a participant, is the process of a planning meeting. 

MR LEE:  Mm hmm. 

MS EASTMAN:  And the purpose of the first planning meeting is to identify what the necessary and reasonable supports may be for a new participant. 

MR LEE:  Mm hmm. 

MS EASTMAN:  And the exercise of planning to identify what the participant's goals might be, they may be goals connected to short term, medium term or long term goals? 

MR LEE:  That's correct. 

MS EASTMAN:  But, essentially, the aim is to develop a plan that identifies the supports that are required. 

MR LEE:  Mm hmm. 

MS EASTMAN:  And work to achieving goals so that the supports match the achievements of particular goals? 

MR LEE:  That's correct. 

MS EASTMAN:  A planning meeting occurred on 7 August 2018.  And by this stage, Kaleb would have been 18 years old. So, just pausing there, at the planning meeting, the NDIA would have records of what occurred at that planning meeting? 

MR LEE:  Yes. 

MS EASTMAN:  And to the extent you have knowledge of the first planning meeting, are you aware that the planning meeting was held with Kaleb's father, Mr Barrett? 

MR LEE:  Yes. 

MS EASTMAN:  And to what extent do you have any knowledge of the level of involvement of Kaleb himself in that meeting? 

MR LEE:  I understand, Counsel, that Kaleb was present at the meeting. Kaleb and his father attended one of our service delivery sites to undertake that first planning meeting. 

MS EASTMAN:  And would a decision have been made at that time or at an earlier point in time that Kaleb himself may require a nominee or a representative to help him engage with the NDIA? 

MR LEE:  It would have likely been understood by the planner in their preparation for that meeting that Kaleb had recently become an adult by law, and that he would   may require someone to be acting as a nominee on his behalf. 

MS EASTMAN:  And that's a topic that I want to come back to a little bit later about the nature of a nominee, but would it be fair to assume that for that planning meeting, essentially all of the discussion was directed to Mr Barrett and any decisions, description of services and supports required, would have all been provided by Mr Barrett? 

MR LEE:  That's correct. 

MS EASTMAN:  So at that planning meeting, the result was that there was a first plan and that was ready by 17 August 2018, and that first plan identified a sum of just over $102,000 for Kaleb's first plan. 

MR LEE:  That's correct. 

MS EASTMAN:  Is it the NDIA's expectation that the participant would use those funds for the necessary and reasonable supports in their lives? 

MR LEE:  That's correct. 

MS EASTMAN:  And to use those funds to achieve the particular goals identified in their plan? 

MR LEE:  Yes, that's correct. 

MS EASTMAN:  This plan was set for about a year to two years; is that right? 

MR LEE:  Well, it would have been a 12 month plan, yes. 

MS EASTMAN:  And you're aware, aren't you   and this is included in the findings   that in the first 12 months of Kaleb's plan, the sum equivalent to $361 was the total use of the funds out of the over $102,000 available to him? You're aware of that? 

MR LEE:  Yes, I'm aware of that. 

MS EASTMAN:  And to the extent the funds comprising $361 was used, it was recorded as being used for transport and for continence products? 

MR LEE:  That's correct. 

MS EASTMAN:  And in terms of where the funds went, the funds of $361 went directly into Paul Barrett's account? 

MR LEE:  For transport, correct. 

MS EASTMAN:  As far as we're aware, was there ever any type of bank account for Kaleb independent of his father? 

MR LEE:  No. 

MS EASTMAN:  And the circumstances in which the sum of $361 went into Paul Barrett's account would have been the result of what? 

MR LEE:  They would have typically been for what we call periodic transport payments. So, they are payments that would go directly to the participant or the nominee to assist them to purchase disability relevant transport to access   access the community and services in the community. 

MS EASTMAN:  Right. So, would a participant who had over $102,000 in their first plan, just starting out as a participant, if such a very small amount of the overall funds available was used in that first year, should that have been a red flag to anyone in the NDIA? 

MR LEE:  Yes. It should have been. 

MS EASTMAN:  And you're aware that, in Kaleb's case, what happened after the first 12 months was a second planning meeting. That second planning meeting did not go into the detail of the utilisation of Kaleb's funds, but that planning meeting, which was led by Paul Barrett, resulted in Mr Barrett making it very clear that he didn't feel that Kaleb needed support; is that right? 

MR LEE:  That appears to be the case, yes. 

MS EASTMAN:  And the records for the planning meeting with Kaleb, Mr Barrett, and a person described as an unidentified support worker on 9 August 2019 records the following interactions with Mr Barrett   and, Commissioners, this is page 25 of the report under the heading Second Plan, sub paragraph (b):

    "Paul Barrett was very hostile, swore throughout the meeting and was reluctant to provide any information about Kaleb's supports. Paul Barrett indicated he was very unhappy with the lack of communication from the agency, and there was no implementation meeting, and he was not aware of how much was funded. When the funding was explained, Paul Barrett stated 'the funding was highly unnecessary' and he requested only continence aids as that was all Kaleb would use. The planner discussed other supports which may be beneficial. However, Paul Barrett said he did not want anything else from the NDIS and would prefer to work with Disability Queensland."

Over the page, and I won't read all of them, is:

    "It was fairly clear, looking at the dot points, that Mr Barrett did not want a support coordinator. He said he was paying for a carer who was identified as a family friend or neighbour. He was paying the carer's support from his pension. He said the transport was not funded by him, but he was specific about the funding he would like for Kaleb re transport. He said the cleaner was coming once a week, and he paid for that from his pension and he said this, 'He did not want home cleaning funded by the NDIS' and Mr Barrett had health concerns, including presenting with an enlarged tongue and having difficulty speaking at the meeting."

They're the points highlighted in the NDIA review of that meeting.  There is nothing in these notes to indicate even the slightest of attempts to gauge Kaleb's views about his own plan and the supports he wanted. Do you agree that summary gives you a sense that the child   or then young man, no longer a child   was actually irrelevant in this whole process, was he not? 

MR LEE:  I understand he was not particularly engaged in the process, that's correct. 

MS EASTMAN:  Well, he wasn't engaged at all, was he? 

MR LEE:  Information that I've been given was that he was present but moving around the room, but not interested in the proceedings, or didn't appear to have any understanding of what was happening. 

MS EASTMAN:  And the report records that the planner who developed and approved the plan advised the review team that she was, quote:

    "...a bit concerned about the lack of supports engaged for Kaleb, but Paul Barrett was very adamant that he would have been reluctant to use them, regardless of whether or not they are included."

So, do you not see an absolute conflict here between the interests of Paul Barrett and interests of the NDIS participant? 

MR LEE:  That is apparent in hindsight, Counsel. 

MS EASTMAN:  And at the time   and I'm looking at page 27 of the report, paragraph (k)   the agency guidance at the relevant time did not include information on what agency staff should do in circumstances where they form a view that the nominee is not acting in the best interests of the participant? 

MR LEE:  That guidance was not clear at the time in the agency, that's correct. 

MS EASTMAN:  But would you not have expected that the planners and the staff of the NDIA would have used commonsense to identify a conflict, and to understand that, in this case, Mr Barrett was not acting in the best interests of his son? 

MR LEE:  Counsel, what I would say is, at that time, we received the information from the Queensland Government about any persons who   with a disability that were considered to be active or what they call the defined participant who may have been receiving services through Queensland Government disability related services. Kaleb   the data received about Kaleb was that he was a defined participant, so determined by the Queensland Government as having received supports similar to the types of supports the NDIS would fund under the Queensland Government disability services system.

So, in that it   the agreement or the   with the Queensland Government and other State governments was that defined participants would be supported to have a streamlined entry into the NDIS, and in that, information was often received about who was the authorised person who would be acting on behalf of the participant, and I believe we had information to state that the father in this case was acting as the authorised person. 

MS EASTMAN:  Did you have, as far as your records indicate, any information about the father and the extent to which the father had been engaged in the work of any other Queensland agencies:  Child protection, Health, Housing, police or the like? 

MR LEE:  No. 

MS EASTMAN:  Do you have any information as to whether or not Mr Barrett may have been convicted of any criminal offences? 

MR LEE:  No. 

MS EASTMAN:  So the information was really based on the fact that he was Kaleb's father? 

MR LEE:  That's largely the extent of it, Counsel. 

MS EASTMAN:  But the NDIA records didn't record Mr Barrett as Kaleb's father in the system. He was recorded as "other". 

MR LEE:  That would have been the information that we received from the Queensland Government. 

MS EASTMAN:  Right. 

MR LEE:  Yeah. 

MS EASTMAN:  So, coming back to the second plan, notwithstanding what seemed to be a fairly difficult meeting for those involved, the end result was that the second plan was funded to the level of just over $8,000. Now what would explain the very significant disparity from the over $102,000 in the first plan and then, 12 months later, the total funding being just over $8,000? 

MR LEE:  I understand, Counsel, that that was largely due to the father in this case asserting that he didn't need funding for other types of supports. So, a plan was built around the types of supports that the father had indicated that he would utilise. 

MS EASTMAN:  And you're aware, aren't you, that there was no utilisation of the funds available in the second plan? 

MR LEE:  That's   I'm aware of that. 

MS EASTMAN:  There is a third plan developed, and that was not a scheduled review, and that occurred in or around 15 January 2020. 

MR LEE:  Mm hmm. 

MS EASTMAN:  The circumstances of that review arose because Paul Barrett was in hospital, and he contacted the agency planner from hospital advising that he needed more funding for Kaleb. The process initiated on the same day and completed on the same day. Is that the usual practice within the NDIA to undertake a review so rapidly? 

MR LEE:  That, Counsel, is a practice and it can be done where a case requires prioritisation. 

MS EASTMAN:  And was there anything to your knowledge   and accepting you're only relying on what you've been told or reviewed   that indicated that this was a matter of particular priority?  And I'm asking you that given the background that you've had that engagement with Paul Barrett, who made it pretty clear that Kaleb didn't need any assistance and that there had been that reduction of the funds available to him in the plan. So, what was so significant about 15 January? 

MR LEE:  Counsel, the significance would have been that we were contacted by a primary carer of a vulnerable person with a disability that that had been hospitalised and that potentially could have put the participant at risk due to the primary carer role being disrupted or breaking down. So, there was a need to make sure we responded in a way that addressed that. 

MS EASTMAN:  When you're talking about the question of risk, what risks is the NDIA concerned with? 

MR LEE:  Clearly, when it comes to vulnerable people, it's a risk of harm, abuse, neglect and violence, primarily. 

MS EASTMAN:  But here the risk was just the absence of the father and an assumption that Kaleb would not be able to support himself? 

MR LEE:  Correct. 

MS EASTMAN:  Was there anything else that was taken into account in identifying any risk that resulted in the plan being initiated and reviewed on the same day? 

MR LEE:  No, Counsel. That was the only information we had to hand. 

MS EASTMAN:  Alright. And the report at page 29   and, Commissioners, this is paragraph (d) at the top of page 29   sets out some of the findings from the review on the question of risk. So, Mr Lee, the third plan was then developed, and that saw an increase in the funds available to Kaleb, and the third plan was funded at just over $41,000; is that right? 

MR LEE:  That's correct. 

MS EASTMAN:  And by the time of Paul Barrett's death in May 2020, only just over $1,200 had been utilised for Kaleb's necessary and reasonable supports? 

MR LEE:  That's correct. 

MS EASTMAN:  So when Paul Barrett passed away and the young men were in hospital, there was a need for a further review of their plan. But that was a very significant review that resulted in Kaleb's plan changing substantially in terms of having supported independent living and services provided by an independent support   sorry, service provider, no longer family arrangement; is that right? 

MR LEE:  That's correct, yes. 

MS EASTMAN:  So that's Kaleb's journey up to 27 May. 

MR LEE:  Mm hmm. 

MS EASTMAN:  I want to turn to Jonathon now. So, Jonathon's attempts to become an NDIS participant also start in December 2016, and the   it's page 20, Commissioners, of the report if that assists. So, 12 December 2016 is the access process commenced. So, that access process means the application process; is that right? 

MR LEE:  No. 

MS EASTMAN:  Is that a different phrase? 

MR LEE:  Yes, it is, Counsel. That is when we would have received information from the Queensland Government about Jonathon and made first attempts to notify the participant or the family that the NDIS would be beginning the process to consider their eligibility for the NDIS. 

MS EASTMAN:  Right. And you, I think, have been present in the hearing room where the Principal Commissioner from the Queensland Family and Child Commission gave evidence earlier today? 

MR LEE:  Yes. 

MS EASTMAN:  And referred to two reports, a full report and then a redacted report being provided. You're aware of that? 

MR LEE:  Yes. 

MS EASTMAN:  That reports notes that Jonathon's school was part of the agencies in Queensland that started off this access process for him; are you aware of that? 

MR LEE:  No, Counsel. 

MS EASTMAN:  Are you aware of Jonathon's school having anything to do with the process of him becoming an NDIS participant? 

MR LEE:  No, Counsel. 

MS EASTMAN:  So in terms of Jonathon's process, the report on page 21 sets out some of the steps taken. Am I right in understanding that there was some correspondence back and forth in relation to   sorry, correspondence one way in relation to requests, but not information coming back to the NDIA, and the result was that by 9 April 2018, Jonathon's access application was automatically cancelled? 

MR LEE:  That's correct. 

MS EASTMAN:  By this stage, though, the older brother access met decision, so his application had been successful as at 3 March 2018.  Was there anything in the NDIA system that linked the brothers together? 

MR LEE:  No, Counsel. 

MS EASTMAN:  Why not? 

MR LEE:  That was an idiosyncrasy of the system at the time, Counsel.  It   the design of the system was such that it didn't have ability to link siblings and family members in the system that it does today. 

MS EASTMAN:  And when you say it does today, is that a result of the circumstances that arose from this case study? 

MR LEE:  In part, the review of this case study and others. 

MS EASTMAN:  And the end result, when we talk about Jonathon's access to the NDIA, it basically stopped at 9 April 2018. 

MR LEE:  Yes. 

MS EASTMAN:  And it doesn't revive until after 27 May where I think you then became involved. 

MR LEE:  Yes. 

MS EASTMAN:  And it became apparent pretty quickly on 28 May that Jonathon was not an NDIS participant. 

MR LEE:  Mm hmm. 

MS EASTMAN:  He was a child. 

MR LEE:  Mm hmm. 

MS EASTMAN:  He had disability. 

MR LEE:  Yes. 

MS EASTMAN:  And he would be a young person who would require necessary and reasonable supports with respect to living with his disability? 

MR LEE:  That's correct. 

MS EASTMAN:  So, in terms of what you were able to assess in one day on or around 28 May had been, may I respectfully put to you, completely missed and overlooked for the previous four years? 

MR LEE:  I think that's a fair assertion, Counsel. 

MS EASTMAN:  And given the interactions between NDIA and Kaleb's father, Mr Barrett, the NDIA was on notice that Mr Barrett was very resistant to having any supports for one son. Was there an assumption at any point that the NDIA would face similar difficulties if Jonathon also became a NDIS participant? 

MR LEE:  There wasn't an assumption at the time, Counsel. 

MS EASTMAN:  Was there anything in the NDIA system that would have allowed Jonathon slipping through the gaps as he did to have been detected at the time? 

MR LEE:  No, Counsel. Not   not the kinds of safeguards we have today. 

MS EASTMAN:  So, Jonathon's ability to access the necessary and reasonable supports that he required to live a life with dignity depended solely on the cooperation and action of his father to facilitate his access to this important support? 

MR LEE:  At that time, Counsel, yes. 

MS EASTMAN:  Do you accept that, notwithstanding the transition period and notwithstanding the sort of glitches that might occur in the rollout, that that is a very significant oversight that creates great risk for young people with disability who depend only on their parents to be able to access services and supports? 

MR LEE:  I accept that, yes. 

MS EASTMAN:  So when Jonathon and Kaleb were then in hospital, there was a very rapid response, was there not, to ensuring that relevant service providers could be identified? 

MR LEE:  Mm hmm. 

MS EASTMAN:  There was a discussion about whether they would remain at their family home, notwithstanding that it would need a very significant deep clean, I think, is the language used? 

MR LEE:  Mm hmm. 

MS EASTMAN:  And to organise supports in their own home. That did not transpire and that the young men then moved into alternative accommodation, which we've heard about over the last day or so. The other feature was that, in the absence of their father, there had to be some assistance for them, did there not, either by nominee or a child representative to engage with the NDIA, and was there an issue that arose in relation to Jonathon's mother taking on that role as child representative? 

MR LEE:  I'm not   

MS EASTMAN:  Do you have any knowledge of that? 

MR LEE:  Not clear on that. 

MS EASTMAN:  But you're aware, aren't you, that the Public Guardian was appointed. 

MR LEE:  Yes. 

MS EASTMAN:  For both Kaleb and Jonathon? 

MR LEE:  Yes. 

MS EASTMAN:  And one of the reason the guardianship applications were granted and orders made was to assist both young men as they navigated the NDIA? 

MR LEE:  Yes. 

MS EASTMAN:  Now, I think, Dr Bennett, I've previously asked you questions about the relationship between guardians and the NDIA, and you may recall at Public hearing 30 one of the issues that the Royal Commission heard was that there had been an increase in the number of guardianship applications based on the need for a guardian to support people navigate the NDIA, and I don't know   I'm not asking you to recall the detail, but we generally had that exchange at Public hearing 30 last year? 

DR BENNETT:  We have, Counsel, yes. 

MS EASTMAN:  And one of the issues around that was whether or not people with disability who become NDIA participants really require a guardian to help them navigate, because is the issue the complexity of the NDIA or is the issue something inherent that, for people with disability, the NDIA has got a number of barriers. So, it's which side it came from. Looking at this example, which we didn't discuss at Public hearing 30, is the young people did need a guardian to navigate the NDIA. You agree with that? 

DR BENNETT:  Not necessarily. Just in respect that, under our legislation, which does consider the requirement for representative decision makers, that is a nominee and/or a child representative and they do not have to be guardians, although, in many cases, they are. 

MS EASTMAN:  If, for example, they didn't need a guardian but their parents were not able to serve that purpose, is there someone in between? Either an independent advocate or another person who can take on that role of assisting young men in Kaleb and Jonathon's circumstances to navigate and work through the NDIA to ensure that they get the best supports that they require? 

DR BENNETT:  Through our engagement with people in similar circumstances to the children in this case, we should look at what supports somebody has around them, either family or friends or others that may be in a position to support their decision making around the Scheme and not leap to the appointment of a nominee, rather, to see that as a last resort. It is possible for a participant to provide consent for somebody to act on their behalf around particular decisions. So, that would be a   a sort of less formal way of ensuring that there is some supports for decision making around someone in   in these   in these circumstances. 

MS EASTMAN:  Stepping back and looking at this case study as a whole, one conclusion that might be open to the Royal Commissioners is that throughout Jonathon and Kaleb's lives, particularly during the time they were in the care of their father, it appears that no one ever even assumed that either of them had any capacity to exercise any type of choice or to have any control over their lives at all. The conversations we have about the importance of the principle of choice and control just seems to be wholly absent in the lives of these young men, and by everybody around them, be their immediate family, their community and then government agencies. So, you're saying, well, maybe they didn't need a guardian and maybe they could have navigated the system. Does that have to start from the premise that they both had a requisite capacity to exercise some degree of choice and control? 

DR BENNETT:  It does and it should, and I think it's important to acknowledge, as our internal review report did, that while we acted within our legislated role, there were   was guidance that was in place that was not followed.  There were gaps in our guidance at that point in time, attributable primarily to system deficiencies and/or process immaturity that reflected the point in time at which the Scheme was back in sort of 2016 through to 2018 here in Queensland. Absolutely central to the legislation under which we operate is the concept of assuming capacity of the importance of people being involved to the extent possible in decision making and having choice and control, as you rightly say, and I would be confident that in   under current settings, many more opportunities would have been taken to explore with these children and the family what support could be put in place, other than a nominee appointment to support their decision making, yes. 

MS EASTMAN:  Thank you. So, I want to then turn to the NDIA's action by commencing a review, and the Commissioners have your report, and on page 5 that tells us that the CEO established Terms of Reference dated 11 June 2020 and a copy of the Terms of Reference are also included in the report. The purpose of the NDIA's review was to review all relevant matters, including actions and interactions relating to Kaleb and Jonathon's transfer into and the time as NDIS participants, and the events following the death of their father. The review was to go through to the period 4 June 2020. So, the nature of this review, as set out in the report, was to examine all of the relevant government engagement and support engagements with each of the two young men; is that right? 

MR LEE:  Correct. 

MS EASTMAN:  And to what extent did the NDIA have any powers to compel any information from any of the Queensland agencies or departments that may have engaged with each of the young men over the course of their life? 

MR LEE:  The NDIA doesn't have any coercive powers in that regard in its legislation, Counsel. 

MS EASTMAN:  So if there was any engagement with external agencies, particularly Queensland departments and agencies, that had to be on a basis where there was an agreement about the exchange of information? 

MR LEE:  Correct. 

MS EASTMAN:  And was the NDIA aware that the Queensland Family and Child Commissioner had been asked to undertake a review as well? 

MR LEE:  Yes. 

MS EASTMAN:  And by 20 July 2020, the QFCC   if I can use that abbreviation   had expressed some preliminary views in relation to what may have occurred to Kaleb and Jonathon. Were you aware of that? 

MR LEE:  We   we were aware that   that had occurred. 

MS EASTMAN:  Were you aware that some of the matters that the QFCC was examining was Jonathon's access to the NDIS? 

MR LEE:  We assume so. 

MS EASTMAN:  Dr Bennett, jump in.  My questions are open to both of you to jump in. 

DR BENNETT:  Yes, Ms Eastman.

MS EASTMAN:  And there was an understanding at the Queensland level that Jonathon's NDIS application was rejected by the NDIA. Now, that sounds like there has been a process and a result that a decision had rejected him from the NDIS, but that would not be right, would it? 

DR BENNETT:  No. 

MR LEE:  No. 

MS EASTMAN:  It's a cancellation because those preliminary steps, Mr Lee, as you described, hadn't been completed. 

MR LEE:  Correct. 

MS EASTMAN:  And the cancellation, in effect, is just like a lapse.  It's just lapsed; is that right? 

MR LEE:  Yes.  Correct. 

MS EASTMAN:  So to the extent that Queensland was examining the conduct of the NDIA, was the NDIA involved in providing information to Queensland to assist the QFCC in her investigation at the time? 

MR LEE:  Yes, I believe we   we provided some non identifiable information about timings of our procedures and the likes in our processes at the time. 

MS EASTMAN:  Would there have been an explanation to the QFCC that there wasn't a decision that was a rejection?  Would you have given information to explain the process? 

MR LEE:  I couldn't say to that level of detail, Counsel. 

MS EASTMAN:  And were you aware of the QFC making some findings that might, on one view, be adverse to the NDIA in relation to, for example, placing considerable responsibility on a parent to understand the evidence needed about their child's disability and working with professionals to gather it? 

MR LEE:  We were   we would have been aware of that following the public   the Summary Report being made public. 

MS EASTMAN:  And that the NDIA must strengthen available supports to assist vulnerable families to navigate and complete the application process? 

DR BENNETT:  Yes.

MR LEE:  Yes. 

MS EASTMAN:  Were you aware whether the QFCC made any findings about the extent to which any particular Queensland department or agency also had a responsibility in assisting families of children who might be described as vulnerable in accessing, navigating and completing the application process? 

MR LEE:  Only to the extent that it was touched on in the Summary Report, Counsel. 

MS EASTMAN:  And to the extent the QFCC made some findings concerning Kaleb   noting that he was an adult at all relevant times when the plans were in place, that   that this has described him as:

    "...a child living with disability relying on their parents to coordinate supports under the NDIS on their behalf, and if parents are not able or willing to access those supports, their children miss out on vital NDIS services." 

And a suggestion that   perhaps by inference that it was for the NDIA to play some type of safeguarding role in relation to ensuring that their children, even if it's an adult child, would have access to NDIS services? 

MR LEE:  Yes. 

MS EASTMAN:  So you're aware of those findings? 

MR LEE:  Yes. 

MS EASTMAN:  But you were not aware of those findings in July 2020 when the NDIA was into the process of its own investigation; is that right? 

MR LEE:  That's correct. 

MS EASTMAN:  So the NDIA process took some time. There was some point in time in the process where, once Kaleb and Jonathon were settled in their new home   and I think the word to describe them was "safe"   that that took a bit of urgency out of finishing the NDIA review; is that right? 

MR LEE:  I'm not sure if that was the factor, Counsel, per se, of potentially prioritisation or review of other cases that may have been more urgent that took precedence. 

MS EASTMAN:  Must have been a pretty bad case if it was more urgent than this one. 

DR BENNETT:  Counsel, I would say that the review was initiated, I believe, in June. The original end date was intended to be August, but that then was extended to November, so it did run for a total of five months, which, although longer than intended, I think is an appropriate time frame to be looking into the level of issues concerned in this case. 

MS EASTMAN:  Were there any impediments to the NDIA being able to conduct a full and thorough review with respect to being able to access information from Queensland departments and agencies? 

DR BENNETT:  Not within the Terms of Reference of the review, which were primarily focused quite tightly on the extent to which we fulfilled our legislated obligations under the Act and the areas where we could seek to improve. So, although the review looked briefly at the extent to which, post the incident, the father's death, we engaged with those agencies, it did not seek to look holistically at the role of other agencies in this matter. 

MS EASTMAN:  Okay. So, the finding, Commissioners, you will find at page 36 of the report, starting at part 7 and, Dr Bennett and Mr Lee, there are a number of findings there, if I can just deal with them at a fairly high level. First:

    "That relevant information was not always appropriately or accurately recorded on Kaleb and Jonathon's files in a manner consistent with the agency guidance and the requirements of the Privacy Act." 

So, that was a general finding around the information and record keeping. But there were then particular findings relevant to the process of transition that concerned how Jonathon slipped between the gaps. There were some findings in relations to the access processes for both Kaleb and Jonathon.  And I think there was a recognition that the very long period of time before Jonathon could become a participant was a matter of concern in findings. You'd agree with that?

MR LEE:  Yes. 

MS EASTMAN:  There was some findings in relation to the under utilisation of Kaleb's plans, and the finding at page 38 makes this observation. It's at the top of the page, paragraph (d), it says:

    "Noting the significant under utilisation of Kaleb's plan, however, the review team considered it unlikely that Paul Barrett would have accessed supports for Jonathon in any event."

So, is that, in a sense, based on Mr Barrett's resistance and reluctance to have supports for one son, it would assume that Jonathon would be in the same position? 

MR LEE:  That  

MS EASTMAN:  Why would that assumption be   you're nodding.  Why would that assumption be made? They have similar disabilities, but they also have different disabilities.  They're different ages. Jonathon was still a child at the time and attending school. Why would the assumption be made that Barrett's response to one child would follow that he would have the same response for the other child? 

MR LEE:  In the review report produced, Counsel, it became clear that the motives and behaviours of Mr Barrett with regard to one   one adult aged child was likely to have been similar with the other child and likely evidenced in his reluctance to provide information to support a successful access   successful access to the Scheme for Jonathon. 

MS EASTMAN:  Is there not a risk in assuming that because they're brothers and because they both had the same sole carer for whom they were dependent, that their experience would also be the same? 

MR LEE:  I guess there is a small   small risk in making that assumption, Counsel, but I don't think it's an unreasonable assumption to have been made in this regard. 

MS EASTMAN:  But that assumption is supporting a finding that Jonathon would be at risk of not being able to have the supports that he required, and would that not highlight for the NDIA the importance of perhaps having an alternative person to somebody like their father actively involved in Jonathon's supports? 

MR LEE:  In hindsight, yes, that is correct. 

MS EASTMAN:  Other findings concerned the planning and the under utilisation. There's findings in relation to the nominee and guardianship processes and some findings in relation to information that was available. So, I'll just summarise that broadly. Recommendations were also identified in this report. Commissioners, this is at page 41 under part 8, and there's a number of recommendations identified. The Royal Commission asked you to provide us with a statement outlining what actions the NDIA has taken since this report has been finalised and the recommendations identified, and the statement that you've provided to the Royal Commission is an extremely detailed and comprehensive statement covering all of the recommendations and issues. 

I want to just focus on two in the time available, and the first one is about nominees. And we've touched on this a little earlier. I think, Dr Bennett, you said there's now some changes in place in relations to nominees. So, the question that we asked about nominees starts on page 24 of your statement. The question we asked you, question 9, appears on that page in some blue shaded text, and then at paragraph 117, which starts at the bottom of that page and continuing over the page, sets out the relevant recommendation. 

And at paragraph 118 you refer to something called the nominee rules. Now, these nominee rules were in place at all relevant times concerning both Kaleb and Jonathon's attempts to access and become NDIS participants. So, what extent in the review did the need, if any, to amend the nominee rules arise, and what changes have occurred in relation to the nominee process as a result of the review? So, Dr Bennett, should I direct that question to you? 

DR BENNETT:  Yes, Counsel, that's   that's fine. I think, yes, the review, as you said, the recommendation in relation to that did say that consideration should be given to whether an amendment is required in the NDIS Act and nominee   nominee rules. The agency did start work on   with the Department of Social Services because, of course, the rules are not sort of ours to rewrite, but in the context of the Tune Review at the time that had been looking at a review of the NDIS Act primarily related to the introduction of timeframes and service standards associated with the participant service guarantee, the rules were being looked at in the context of that review. 

So, we did do some work with the department primarily to look at the extent to which the rules could be strengthened to ensure that nominees were acting not just to promote the personal and social wellbeing of a participant under their care, but to support wherever possible their will and preference and also to strengthen aspects of the rules that went to the nominee role in building the capacity of the participant to make decisions over time. 

The changes to the NDIS Act relating to the participant service guarantee came in as of August 2022. Rules to support that and, indeed, any revised rules associated with the Tune Review have not, so far, been progressed, but are   will be subject, I think, to recommendations from this Royal Commission and to the NDIS review happening in parallel.  Government will consider those. So, changes to the rules were not progressed. 

Changes we did progress internally as an agency were to our Operational Guidelines, which translate those rules into plain English and describe the processes through which we and the considerations that we make in making a nominee appointment, the roles and responsibilities of a nominee, and some of the steps that can be taken in instances where there are concerns as to the ability of the nominee to fulfil those obligations or, indeed, any risks have been identified in that   in that arrangement. 

That Operational Guideline was revised and published, I believe, in early 2022, together with revised standard operating procedures to support staff to navigate that and new fact sheets for nominees, describing the nominee role.  And then I think the other relevant development since the recommendations in the review here relate specifically to the work that the agency's undertaken in the intervening period to develop a supported decision making policy that we talked about at hearing 30, but which has now been published   

MS EASTMAN:  That was released last week. 

DR BENNETT:    as of last Friday, yes, Counsel.

MS EASTMAN:  So, there seems to be sort of three elements to this. The first element is what does the legislative and rules based approach need to be for the NDIA?  Secondly, how do you ensure that the NDIA staff and NDIA partners understand those rules and understand their responsibilities in relation to those rules? But the third   and may I suggest a very important element   is the nominee themselves not only understanding their obligations as a nominee but actually understanding the context and system within they're working. 

To what extent, on that third element, which is supporting somebody like a Paul Barrett, who clearly, on the material available, did not really understand the process, had a suspicion of government or agencies intervening or being involved in his life, what steps have been taken for the Paul Barretts in the community who may need to be a nominee, what's available to them to understand their roles, responsibilities and concepts such as conflicts of interest? 

DR BENNETT:  In addition to the Operational Guideline, which does cover many of those elements and in plain English as possible, there are a number of fact sheets that we've published since the time of the review into this case that do summarise in accessible formats information about roles and responsibilities for   for nominees. I think it is an area where we have more work to do, and the work I referred to just now under the supported decision making policy is the vehicle through which we can continue to improve the support that we offer to nominees in their role.  And the implementation plan that we published as part of the release of that policy last week does relate specifically to actions we would take to develop targeted training for nominees to understand their role in supporting participant decision making. That has not yet occurred. 

MS EASTMAN:  That's all still very text based. 

DR BENNETT:  Yes. 

MS EASTMAN:  Fact sheets, material on the internet, words, language.  It's a very text based approach. For people in our community who are not text people, not public servants, lawyers, people who are used to the written word and engage with that, what's the alternatives available to understanding that information without having to engage with the text? 

DR BENNETT:  That would be engaging with our staff, with our partners or, with willingness, with a support coordinator who would have been   and was in this instance but to little effect   provided for within a plan because their key role includes helping people in such a position, whether that be the participant or the nominee, to understand the supports in the plan and how they could be used, to develop the participant's capacity around decision making and to broker engagement with providers to ensure that those supports are being   are being used effectively. 

We do have now many more triggers within our system that would have led to proactive follow up by phone with   with the father in this   in this instance.  Both the absence of any service bookings having been made after the plan approval within four weeks, the absence of any payments having been made against the plan within six would both have led to a participant check in conversation, which has been a core part of our operational approach since August 2020, having first been introduced during the COVID pandemic. That would have afforded an opportunity, at least, to stop further risks and to offer further supports for the participant or the nominee to better discharge their obligations under the legislation. 

MS EASTMAN:  So, again, just using Mr Barrett, he's a person who's suspicious of government. He's not a person who uses text. He's not writing. To suggest that his understanding, his responsibilities could be gained by talking to the NDIA staff   he perceives them as government.  He's got a deep suspicion of them.  If that's the option, there's nothing to stop a sort of Paul Barrett situation occurring again, is there? 

DR BENNETT:  I think the variety of changes and improvements that we've made since the time of the review that I've referred to would make that less likely, but it is still   it is still   still possible, yes, I would say. 

MS EASTMAN:  The other on nominees is for children, and the NDIS has the Children Rules 2013 and they were effective from 18 June 2013. So, relevant at the time for these two young men. The Children Rules assume that families for the most part are functioning and functional and that parents and families, being significant persons in the lives of young people with disability, should be acknowledged and respected.  But there assumes that parents will act in the best interests of their child to protect the child from harm or promote their development. These rules have a range of assumptions about functioning families; would you agree with that? 

DR BENNETT:  I would. 

MS EASTMAN:  And often rules need to be in place to assist, for example, NDIS staff and others to know what happens when the assumed state of affairs which are protective of children, supportive of children, and promoting children's rights fail. You agree with that? 

DR BENNETT:  Correct. 

MS EASTMAN:  To the extent these rules identify any protections for children in the way in which the Children Rules apply, there are some requirements on the CEO in making a determination about a child's representative that may take into account risk factors to a children   to children. Do you agree with that? 

DR BENNETT:  I do. 

MS EASTMAN:  But, for the most part, the rules very much point to the maintenance of functioning families. You agree with that?

DR BENNETT:  Yes. 

MS EASTMAN:  So if you want to have a look at the rules, it's page 6 of 15 on the document that you've got at 3.5. The child representative rule operates with the CEO having regard to the desirability of preserving family relationships and is normally support networks of the child. Do you agree that contains an assumption? 

DR BENNETT:  I do. 

MS EASTMAN:  That the parents may be best placed to carry out the duties required of a nominee or a representative in the Act, and then there are a range of elements that the CEO considers in sub paragraph (d) which is the existing arrangements that are in place, whether that person has responsibility for day to day parenting decisions, whether the person can act in conjunction with other representatives and supporters of the child in the child's best interests of the child. So, just those ones, those are factors that also assume a functioning family, but they are the sort of factors, if the CEO is looking at the whole state of affairs, could also be against, perhaps, having a parent as a representative if they don't meet these elements. Do you agree with that? 

DR BENNETT:  Yes. 

MS EASTMAN:  In practice, is the emphasis on the functional family model?  Or is it looking for dangers in that family model that might create risks to the child or not operate in the best interests of the child? 

DR BENNETT:  I think in practice, we attempt to do both. I think because it   we would in most instances appoint the person with parental responsibility as a child representative. We would check if they were a guardian in place, and that would be an instance where we may, we may not. So, I think there are some protections in that and the way that it is   it is enacted. 

MS EASTMAN:  The next set of factors which are on page 7, so over the page, concern the consent for the child's   the consent a child's representative may give concerning their criminal history or suitability to work with children checks. And that information depends on the child representative or the proposed representative consenting to release that information; is that right? 

DR BENNETT:  Correct. 

MS EASTMAN:  And if there's a refusal to provide that information or answer questions, that might be a factor taken into account that would work against that person being the representative? 

DR BENNETT:  Yes. 

MS EASTMAN:  There's a tension, is there not, in people being able to maintain their right to privacy, to maintain a right not to be discriminated against based on a criminal record. There's rules around spent convictions in terms of the requirement to disclose. So, on one hand, you've got the person who chooses not to disclose, but if they don't disclose, that can then be used against them. There's a tension there, is there not? 

DR BENNETT:  There is. 

MS EASTMAN:  The other is a relevant convictions or an offence under Commonwealth, State or Territory law, and I'm not sure "relevant conviction" is defined in any way in the rules, but we know in this case that is before the birth of Jonathon and while Kaleb was still a young person, that there was an incident that had occurred at a hospital which resulted in Mr Barrett being charged with disorderly behaviour. He pleaded guilty and was then convicted. So, it's a low range offence but, nevertheless, there's a conviction there. If that knowledge had been available to the NDIA for either the nominee process for Kaleb or the child representative, if Jonathon had made his way through, how would that information come to the NDIA and how would that have been taken into account in terms of Mr Barrett's role as a representative or nominee? 

MR LEE:  It would have made a material difference, in my opinion, if that information been available at the time.  It would have generally spoken to Mr Barrett's suitability as the authorised representative for the two boys. It would have been a piece of   a piece of information that would have been useful in making that determination, as difficult as that determination is to make when the determination is about finding or substituting a parent as the authorised representative. How we would have come to know that would have had to have been through, in this case, the nominee or the authorised representative making that   volunteering that information. 

MS EASTMAN:  I accept you're not privy to the information available to the Queensland various departments and agencies, but if you assume and take this, that if Mr Barrett was not always truthful and honest in his disclosures with government officials, then how do you safeguard against the person you're relying to give you the information not necessarily inclined to give you truthful or complete or accurate information? 

MR LEE:  Counsel, it is very difficult without substantial information that other agencies may hold. That is difficult. However, as mentioned here, the processes that the NDIA have   has in place now would provide considerably more opportunities for planners and LACs to engage with a reluctant nominee to try and ascertain what are the motives behind their reluctance to engage with the NDIS. 

MS EASTMAN:  There's nothing in those Children Rules that would allow the CEO to take into account, for example, the number of times the parents' behaviour has come to the attention of a Child Safety Officer, the number of times the police have needed to visit the home, the extent to which there's domestic or family violence operating within that family? They're not identified as specific issues that the CEO takes into account in assessing whether or not a particular parent or person is an appropriate child representative. Would you agree with that? 

MR LEE:  In the rules, yes. 

MS EASTMAN:  Right. I'm conscious of the time. So, can I turn to the utilisation question. So, I think we asked you about the monitoring of plans and the extent to which information around low utilisation of plans has been identified. This is at page 18 of your statement responding to questions 6, 7 and 8. And I think, Dr Bennett, do I direct this question to you. There are a range of initiatives now in place with respect to support coordinators and people called recovery coaches to try to strengthen the situation of people falling between the gaps in how they use their plans and access the services that they're required. 

So, there's that aspect that's been addressed. But before we get to their role, it's how within the NDIA do you identify a red flag on under utilisation, or is the under utilisation sort of something that you start with a premise of things are going really well, the person doesn't need that level of supports and that might be achieving their goals and isn't this the ultimate aim, that we want to achieve, that plans reduce in value over time as people have the support to become more independent. But for these young   this young person, surely this raised a red flag.  And I asked you that earlier and I think you said yes. So, how would it raise a red flag in the system?  And I don't know which one wants to take that question. 

MR LEE:  I'll start and Sam may join in. Counsel, so, as mentioned here already, the NDIA has implemented what we refer to as the ongoing check in process, so that is a system analytics based process.  So, it is supported by systems to look across a number of vulnerability factors that are   that a person may have attributed to them. One of those being under utilisation, is one of the eight factors that we look at in determining potential risk of vulnerability. 

Any   any participants who are flagged through that system review, that happens weekly, is then automatically flagged through to a planner, who would typically be the person's NDIS contact, for a check in call. That check in call must take place within 14 days of the planner receiving that notification that a participant has been found to be rated as potential   having potential to be at risk according to our system analytics. 

And then that planner would then undertake to contact either the participant or their nominee or their child representative to   to follow up on whatever the risk factor was that was identified in the   in the regular review of vulnerable participants within the Scheme. 

MS EASTMAN:  Right. Dr Bennett, do you want to add to that? 

DR BENNETT:  Whether in the context of the particular case study the hearing is looking at today these would have been of value is debatable, but other elements we have changed or improved since the time of the review are the development of what we call the plan implementation directory, which is available on the NDIS website with a range of tip sheets and guides and budget tools to support participants, perhaps, who just need some help in being able to understand how their   how their plan might be activated.

And we also refer here at paragraph 99 of our written submission to the development of guides for understanding supports, which is the means through which the agency is taking research evidence about the things that work in working towards particular common outcomes within the Scheme and translating that evidence into easy to use formats so that participants can be better informed consumers in the market. 

MS EASTMAN:  My last question   and the Commissioners may have some questions for you:  yesterday the Royal Commission heard from Commissioner McDougall, the Queensland Human Rights Commissioner, and we asked him some questions about the operation of the Queensland Human Rights Act. One of the issues for the Queensland Human Rights Act is the responsibility of public entities to act consistently with the Queensland human rights set out in the Act, and that a public entity can include a registered NDIS provider performing public acts. 

There seemed to be some uncertainty about exactly who would be caught by that description, whether it would cover all NDIS registered providers or only NDIS registered providers who are performing particular functions that are connected to public entities in Queensland. And this raised for us the question about the extent to which the NDIA has given consideration, to the extent to which the Queensland Human Rights Act has any bearing on how you engage with registered service providers in Queensland and the extent to which the requirement in the Human Rights Act in Queensland have any bearing on any actions, policies or practices within the NDIA. 

So, it's a peculiarly Queensland provision. I don't think I've seen, in the material that we've reviewed, any statement from the NDIA about the effect of the Queensland Act on NDIA registered providers. So, I'm just asking NDIA, not QFCC where it all goes when the complaints are on, but really at the beginning which is the decision making that service providers engage in on a day by day and sometimes, as we heard yesterday, minute by minute basis when they're supporting people with disability. Is that something the NDIA has turned its mind to at all?

DR BENNETT:  Yes. 

MS EASTMAN:  And I'll probably ask both of you on that. 

DR BENNETT:  I'm not aware of any specific consideration that the NDIA has given to the implications of the Queensland Human Rights Act in that regard. I think, however, again, the work we have undertaken in developing our position around supported decision making, which is very much informed by human rights legislation more generally and the UNCRPD specifically, does identify a role for the agency in supporting both participants but also our staff and partners and others within the ecosystem, including providers, to have an understanding of supported decision making and how to enact that through their work, such that the dignity and autonomy of the participants they support is upheld. But specific to the Queensland Human Rights Act, I'm not aware, unless you have?

MR LEE:  No. That's   that would be a correct statement. 

MS EASTMAN:  Alright. Well, Dr Bennett, I express my appreciation that this is the third time you've given evidence at the Royal Commission, and we're very grateful for your assistance and support. Mr Lee, it's your first time.  You will not be returning but we are also grateful for your assistance today. The Commissioners may have some questions.

COMMISSIONER McEWIN:  Thank you, Ms Eastman. I thank you both. I will ask my colleagues if they have any questions. Commissioner Ryan. 

COMMISSIONER RYAN:  Thank you, Mr Chair. I think what we have in front of the Commissioners, we've got to sort of work out, if I may use the words of Counsel Assisting, how do we stop a Paul Barrett situation occurring again. Do you recall Counsel Assisting asking you a question about whether or not staff are encouraged to exercise commonsense? Because I'm not really sure that you actually answered that question. For example, are there   is advice given to staff about recognising abuse?  Because it appears one of your staff did, according to the report, recognise that an abuse situation might have been occurring. On page 27, if I might just read something there, it says:

    "The planner also recalled that she sought entries her Team Leader in regard to Paul Barrett as the nominee not wanting to access any supports and was advised..."

Presumably by the Team Leader:

    "...'We can't force people to have supports. It's choice and control.'"

This story concerns a whole heap of sliding door moments where people might have recognised two young men who were in serious trouble and no one noticed. I don't know whether that's the case or not, but are people advised to look for signals of abuse and if they feel there's abuse going on, are there procedures within the NDIA to report that somewhere? 

MR LEE:  Commissioner, thank you for the question. Yes, today there is, in response to that case and others, as you've heard today, the NDIS has put in place processes and procedures that we've mentioned here today, but things that we haven't mentioned would include, since that time, the NDIS mandatory and essential training for planners and access officers has been fully reviewed and reset. 

So, now the training program for planners and access officers   which is slightly different, but, again, the differences, they're specifically tailored now to the role as well as being much more comprehensive in training the planners or the access officer to look for and identify risks. As Mr Bennett mentioned too, our operating guidance that supports the way our planners and access officers operate within the confines of the Scheme have been reviewed since that time and substantially improved to provide planners with much clearer guidance around what to do when there may be risk signals that they detect and how to deal with that. 

So, I'm fairly confident that that kind of situation would be far less likely, given the training and support that we provide to our   our staff today. Notwithstanding that, other things that we have in place now that we didn't have in place at that time are things like a community of practice framework that allows for our senior planners and our, for want of a better way to describe it, our junior planners to have time in their week, in their day, to reflect upon changes to guidance that we are regularly reviewing and updating and understanding what that   those changes to guidance or changes to legislation perhaps mean in terms of their direct provision of service and support to participants in the day to day duties of their role. 

COMMISSIONER RYAN:  So are NDIA officers able to   the planner, for example, able to   if they recognise something that causes them to be suspicious of abuse or neglect, what would they be able to do about it? 

MR LEE:  In a similar circumstance, one where a planner   a participant has flagged as being   having a potential risk factor that requires the NDIA, either through planners or through its LAC or early childhood partners, to reach out to the participant or the family, they would be more proactive in exploring what are the factors behind any issues that might be apparently through that regular check in process. 

I can say with much more   with confidence that today, if a planner did   was alerted through that process that there were potentially other concerns that they had and they escalated that to their immediate supervisor, that the response would be quite different in regard to considering more proactively whether that person who is acting as the nominee is an appropriate person to continue to hold that role relevant to the person with the disability, and what to do about that, whether   whether there is enough evidence to hand to make a referral, for example, to the Public Guardian on behalf of an adult or to make a referral to another agency that does have coercive powers to intervene, Child Protection Services or the police. 

COMMISSIONER RYAN:  That's what I was after. 

MR LEE:  Yes. 

COMMISSIONER RYAN:  For example, you could be dealing with criminals.

MR LEE:  Could be.

COMMISSIONER RYAN:  Are you able to report to the police   

MR LEE:  Yes. 

COMMISSIONER RYAN:    or child protection, "We think this particular person, the protection of the child is neglecting them seriously." Are you able to do that? 

MR LEE:  Commissioner, yes, we do. Planners are   and staff generally are guided to do that if they have evidence or information to hand that would raise that level of concern. We do regularly contact police, for example, on behalf of vulnerable adults to request what we call welfare checks so that, you know, we know they have power to enter the home that the NDIS does not have, and we do make referrals quite regularly to the child protection agencies in various States and Territories. 

DR BENNETT:  Commissioner, if I may very briefly add. 

COMMISSIONER RYAN:  Yes. 

DR BENNETT:  We do keep such things under constant review. Most recently, one of the things that we've done is publish a Participant Safeguarding Policy, which we developed very closely in collaboration with the disability community, that really seeks to clarify and provide further guidance to staff about all of these matters, both in terms of the developmental and preventative actions we can take through the planning process, but also the actions we can take where issues and incidents occur. I think we've provided that to the Commissioners in draft in February, but it was published back on 10 April. 

COMMISSIONER RYAN:  I was going to ask, since you referred to training, could you provide, perhaps, on notice to the Commission better details. 

DR BENNETT:  Yes. 

COMMISSIONER RYAN:  Particularly with regard to child protection matters, when they're recognised, how staff are taught to recognise, how they're instructed to escalate them, like I would find in other government agencies, to be honest, I think.  Are you able to provide that to the Commission so that we can be absolutely certain that if this ever happens again, that someone is going to pick up the phone?

DR BENNETT:  Yes. 

COMMISSIONER RYAN:  And report it to someone that needs to hear about it. 

MR LEE:  Yes, Commissioner, we can.

COMMISSIONER RYAN:  Thank you, Mr Chair.

COMMISSIONER McEWIN:  Commissioner Mason? 

COMMISSIONER MASON:  Following along with Commissioner Ryan's questions, the child representatives or nominees, do they have to sign anything similar to a declaration of criminal convictions when they begin the roles? 

MR LEE:  I don't believe so, Commissioner. 

DR BENNETT:  No, they need only to assign that they consent to being the nominee or the child representative and have read and understood the obligations associated with that role in our Operational Guidelines which reflect the rules in each case. 

COMMISSIONER MASON:  Just going to Commissioner Ryan's point around a person that may have criminal convictions, prior to becoming a child representative or a nominee, would that not be the opportunity to   I mean, it's not requesting something similar to an Ochre Card or a Blue Card or   to go through that process, but a declaration at that beginning process? Because I'm not sure of the timing of   with the father around the criminal conviction.  It may have happened after, for example, a declaration is signed, but it would need to be updated if something did occur and that, again, would flag a concern? 

DR BENNETT:  Certainly something we could look at, Commissioner. It's not required under the current rules but we could operationally implement such a declaration. 

COMMISSIONER MASON:  It would be consistent with working with children in those circumstances of being highly vulnerable, as child protection workers, for example, have to sign for those records to be there so we're employing and working with safe people and not to assume that a parent's a safe person. Thank you. 

DR BENNETT:  Yes.

COMMISSIONER McEWIN:  My one question to either or both of you is do your guidelines, whether previously or now following the review, allow for access to independent individual advocacy as an option, using the case study as an example? 

DR BENNETT:  Our guidelines, certainly for planning tasks, do refer to the community connections that we can encourage and create, and that would include to advocacy organisations. The NDIA typically doesn't fund individual advocacy, which goes right back to the original Productivity Commission design of the Scheme which was clear that the independence of such advocacy from any administering agency would be an important factor and, consequently, individual advocacy is funded nationally by the Department of Social Services. 

We have in the past as an agency funded self advocacy, and a range of other capacity building supports, whether that be peer supports or mentoring, primarily through utilisation of ILC grants, information linkages and capacity building grants, to organisations to provide those supports. So, we have linked people to those in the past. The agency doesn't currently manage the appropriation for ILC.

COMMISSIONER McEWIN:  Thank you. Thank you, Dr Bennett and Mr Lee. We are very grateful for your contributions. I know that we've gone a bit over time so thank you again. 

THE WITNESSES WITHDREW

COMMISSIONER McEWIN:  Ms Eastman. 

MS EASTMAN:  Thank you, Commissioners. So, that concludes the witnesses and the evidence for today. As I mentioned yesterday in opening, we've received some statements from Queensland. We now have five statements, so if we can resume tomorrow morning at 9 am, that should give us sufficient time to have the opportunity to examine the five deponents to those statements and, Commissioners, you will have time this afternoon to thoroughly review and consider the five statements. Six now, is it? Six statements. Right. There we go.

COMMISSIONER McEWIN:  Yes. Thank you. Before we adjourn, I forgot to ask the parties with leave to appear if you had any questions. Sorry. We'll proceed   if there are no other matters, we will adjourn, then, until 9 am   

MS EASTMAN:  9 am. 

COMMISSIONER McEWIN:    tomorrow. Thank you. 

ADJOURNED 1.13 PM