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Public hearing 7: Barriers to accessing a safe, quality and inclusive education, Brisbane - Day 3

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Publication date

CHAIR:  Good morning.  I shall invite Commissioner Mason to make the Acknowledgement of Country today.

COMMISSIONER MASON:  The Disability Royal Commission acknowledges the First Nations people as the original inhabitants of the different lands on which this hearing is being held today, the Gadigal people of the Eora Nation, the Turrbal and Jagera nations and the Wurundjeri people of the Kulin nations.  We pay particular respect to our elders with disability past and present, and we give acknowledgement to First Nations young people with disability who one day will take their place as elders in the future.

CHAIR:  Thank you, Commissioner Mason.

Mr Fraser, I think you are in charge of this morning's proceedings.

MR FRASER:  Thank you, Commissioner.  The witness we will be hearing from this morning is the parent of a student with a disability in Queensland who is giving evidence under a pseudonym as "Sarah", and her child will be referred under the pseudonym "Kobe".  For this witness, I note for the record that there is presently litigation on foot between this witness on behalf of her son against the State of Queensland regarding various matters that will be the subject of this evidence.  Having said that, I call this witness.

CHAIR:  Yes.  I'm just waiting for Sarah to come up on the screen.

MR FRASER:  In terms of the broadcast, that won't happen in terms of the public broadcast, but in terms of the internal system maybe that's come up now.

CHAIR:  It has.  Thank you very much.

Thank you, Sarah, and I hope you will forgive me using that name for you.  Thank you for attending today and giving evidence.  I will ask Commissioner Atkinson's Associate who is in Brisbane to administer the oath.  If you wouldn't mind following her instructions.  Thank you very much.


CHAIR:  Would you mind saying "I do".  Sorry, I didn't hear.

MS SARAH:  I do.

CHAIR:  Mr Fraser will ask you some questions.  Just so you are clear where everybody is, Mr Fraser is in the Brisbane hearing room.  Commissioner Atkinson and Commissioner Mason are in the Brisbane hearing room.  Commissioner Galbally is in her home in Victoria.  And I am in a hearing room in Sydney and we hope that  
all of the technology will work very effectively.

Yes, Mr Fraser.

MR FRASER:  Thank you, Commissioner.


MR FRASER:  Today you are giving appearance under a pseudonym as "Sarah".  That's correct, isn't it?


MR FRASER:  And you have made a 39 page statement dated 23 July 2020?


MR FRASER:  Are the contents of that statement true and correct to the best of your knowledge?


MR FRASER:  Commissioners, you will find a copy of that statement in Tender Bundle A, Volume 1, at Tab 5.  I tender this statement into evidence and ask that it be marked as Exhibit 7.89.

In addition, there is some material included, pre recorded material of Sarah's son Kobe that is relevant to this case study.  Commissioners, that material is included in Tender Bundle A, Volume 4, Tabs 1 to 16, and nominally behind Tabs 17 to 23, noting that these are electronically pre recorded extracts.  I ask to tender this material into evidence and ask it be marked Exhibit 7.90 through to 7.112.

CHAIR:  Yes.  Thank you.



MR FRASER:  Now, Sarah, you have two children, a daughter now 18 and a son aged 16?


MR FRASER:  And your son is "Kobe", that will be the subject of your evidence today?


MR FRASER:  Your son attended state schools for primary and high school in Queensland?


MR FRASER:  Is that correct?


MR FRASER:  Now, as I've indicated today we will refer to him as "Kobe" but of course that's not his real name, is it?


MR FRASER:  You yourself are a school teacher, having worked in public education systems for more than 20 years; is that correct?

MS SARAH:  That's correct.

MR FRASER:  Focusing on Kobe, your youngest child, tell us about his early childhood, when he was first born?

MS SARAH:  From early on, Kobe had behaviour in very early infancy that indicated markers of autism.  In 2007 at the age of 3 he was diagnosed with Pervasive Developmental Disorder   not otherwise specified.  At the age of four, his psychiatrist diagnosed him under the DSM with high functioning autism and ADHD.  Coming into line with the DSM 5 in 2018, Kobe was re-diagnosed as level 3 severe functioning autism.

MR FRASER:  And from his early childhood had he been diagnosed with any other conditions?

MS SARAH:  Yes.  So Kobe has severe anxiety and depression with suicidal ideation, sensory processing disorder, a speech language disorder, eosinophilic oesophagitis, dysgraphia, PEG fed, and more recently a delayed onset of puberty with a halt in linear growth.

MR FRASER:  What is dysgraphia?

MS SARAH:  Dysgraphia affects the joints in the finger.  Kobe's joints are hypermobile which makes it difficult and painful for him to perform fine motor  

MR FRASER:  And does he require any additional supports as a result of these conditions?

MS SARAH:  Kobe requires significant one to one support at all times.  He demonstrates rigid thinking and poor communication skills.  He misinterprets verbal and non verbal cues and needs frequent guidance, time and patience.  He often has sensory overload which can result in being over stimulated which increases his anxiety which then also leads to meltdowns.  They can also present with, you know, disruptive and challenging behaviours because he's trying to avoid the trigger that's created the anxiety.  And in terms of being out in the public, he requires one to one supervision due to his poor social judgment.  He has persecutory thoughts which can often lead to him being unsafe.

MR FRASER:  And he is very much aware of those disabilities, isn't he?

MS SARAH:  Yeah, he's very, very aware.  He hates being different.  He will say "I hate my life, I wish I didn't have autism."  He has low self esteem because he's aware that he can't control his meltdowns.  He now refers to himself as a “bad, bad boy” and will always ask, "Am I a bad boy, Mum?" He is always remorseful after he has had a meltdown and has had the assistance to calm and co or self regulate.  And he just wishes that people wouldn't judge him and understand that his behaviour is as a result of his autism, that he's not just choosing to be naughty.

MR FRASER:  Can we turn now to his early education years.  Can you tell us about Kobe's experiences in pre prep.
  He attended a dual placement?

MS SARAH:  He was at a regular early learning centre two days a week, and the other two and a half days he was at a Department of Education early childhood development unit.

MR FRASER:  And what did that unit provide for him?

MS SARAH:  It was a very good experience.  Although he showed anxiety, staff put in place to minimise that.  They clearly defined goals which aligned his cognitive and functional capabilities, he was supported with occupational therapists and speech language pathologists, and he made really good progress, particularly with his social skills and fine motor skills.

MR FRASER:  So after pre prep comes prep.  At paragraph 20 of your statement you indicate that you ended up enrolling Kobe at a different school to his sister.  The school you enrolled him at, we will refer to as School 1.  Can you tell the Commission why you chose to enrol Kobe in School 1?

MS SARAH:  Upon looking into a couple of schools in the local area, School 1  
appeared to have the best system in place to provide Kobe with the support that he needed.  They had a separate special education building which was referred to as the “advancement centre”, where students that needed to be there on a full time basis that could be provided for them.  If the student was able to access mainstream classrooms, then that was always an option and they were supported in doing that.

MR FRASER:  And that was a State based primary school?

MS SARAH:  That's correct, Department of Education.

MR FRASER:  What steps did School 1 take to assist Kobe when he first attended at the school?

MS SARAH:  Firstly they thoroughly read the report given to them by the Early Childhood Development Unit and took those recommendations on board.  He was in a small classroom with two teachers and three teacher aides to be able to support.  The program was a balance of academic functional skills and teaching him regulation development.

MR FRASER:  In addition to being at the local primary, for --- moving to Grades 1 and 2 --- he had a dual placement at that same school, didn't he, with Autism Queensland?

MS SARAH:  That is correct.

MR FRASER:  Can you tell us how that worked?

MS SARAH:  Again, it was another --- it was a really positive experience.  Whilst Kobe was receiving the support that he needed the team that were working with him and us as a family felt that Autism Queensland might be able to offer further support in terms of self regulation strategies, and further occupational therapy and speech language pathology, as a --- sort of like an allied team, I guess.

MR FRASER:  And how did the two systems work together?  Did you consider they worked well?

MS SARAH:  They did.  There was excellent communication between both schools.

MR FRASER:  The dual placement finished in 2011 and Kobe returned to full time schooling for Grades 3 and 4, didn't he?

MS SARAH:  Correct.

MR FRASER:  So he continued on with School 1?

MS SARAH:  Correct.

MR FRASER:  What was his experience like in Grades 3 and 4?

MS SARAH:  So in Years 3 and 4 Kobe was still accessing the “advancement centre”, so the Special Education Unit.  He was doing functional literacy and numeracy in the morning session and in the middle session, and in the afternoon he would transition into a mainstream classroom supported by a teacher aide.

MR FRASER:  And how did he go in the mainstream classroom?

MS SARAH:  He experienced some anxiety, but again he was closely supported and monitored by support staff.

MR FRASER:  Coming in to Grade 5, what was his experience like in Grade 5?

MS SARAH:  So beginning of Year 5 was a little bit different.  The school that he was at, School 1, began the rollout of the inclusion policy.  So they began to disband the “advancement centre” and a lot of the students that had been in that particular class with Kobe were placed directly into mainstream classrooms.  However, there were five other boys who presented with challenging --- they were challenging students with complex needs and they were placed in a very small classroom, and Kobe, I guess, learnt new behaviours that weren't particularly functional or reflective of the kinds of things that he would be exposed to within our family home.

MR FRASER:  What sort of things were they?

MS SARAH:  Language, some physicality between the boys, it was sort of, often --- not a contest, but --- there were no role models in that particular class for those students to learn what appropriate behaviour was like in a classroom.

MR FRASER:  Did his experience improve into Grade 6?  So this would have been around the time the inclusion policy had commenced?

MS SARAH:  Yes.  So in Year 6, Kobe had an extremely successful year.  He had a number of positive behaviour records recorded on OneSchool.  His Year 6 mainstream teacher understood that Kobe had predominantly been in a Special Education Unit and allowed him the time and the space to assimilate into a mainstream classroom.  She took the pressure off him to complete written tasks and focused on developing appropriate classroom --- positive appropriate classroom behaviour through the modelling of his peers.

MR FRASER:  In your statement you refer to the provision of withdrawal supports for Kobe.  What do you mean by that?

MS SARAH:  So there was an area outside of the Year 6 block where Kobe and a number of other students, on a needs basis, were grouped and they would work on their ICPs for literacy and numeracy.

MR FRASER:  And what is an ICP?

MS SARAH:  An Individual Curriculum Plan.

MR FRASER:  So would he attend, I think you referred to them as mainstream lessons in your statement, did he attend those for those subjection, is that right?

MS SARAH:  He would be in there for periods of time whilst the mainstream class were doing literacy and numeracy, and certainly he was in there for, you know, other subjects like science, history, geography.

MR FRASER:  And did you feel that those supports were of benefit to Kobe?  Were they working well?

MS SARAH:  They were because it was individualised learning.

MR FRASER:  What was his experience generally like in that year?  Did you see some positive outcomes for him as a result?

MS SARAH:  Absolutely.  So we saw an increase in his self esteem.  He made some friends within the mainstream classroom.  He felt that, I guess, through the development of his self esteem that his peers weren't judging him and if he did become anxious and agitated the teacher had actually, I guess, taught the class strategies that they could use to help Kobe to co regulate.  There was a space for Kobe to go to if he needed a space.  And I guess the most successful thing --- two things come to mind.  So one day Kobe was sitting in class and he was on his iPad at the back of the classroom.  The teacher was giving a history lesson and she asked the class a question.  Nobody in the class was able to answer the question.  Kobe had appeared to have not been engaged or listening to the lesson.  He immediately put up his hand and he said, "Excuse me, miss, the answer is X, Y and Z", which was just amazing and just a real achievement.

And I guess the other biggest highlight is at the end of the Year 6 year he was able to go up on to stage and graduate with his Year 6 class.  His Year 6 mainstream class.

MR FRASER:  Well, he then moved to high school, so Grade 7, and that was within the same school, wasn't it, School 1?

MS SARAH:  That's correct.

MR FRASER:  In your statement you refer to some of the supports or adjustments that the school provided to him and these included, he had an individual support plan, didn't he?

MS SARAH:  That's correct.

MR FRASER:  He had one on one support from a teacher aide to help him type his work in class?

MS SARAH:  That's correct.

MR FRASER:  He was allowed to leave classes early with the assistance of a teacher's aide, I take it, to transition between classes?


MR FRASER:  And there were clear routines and expectations.  Is that right?

MS SARAH:  That's correct.

MR FRASER:  For Year 7, which is a big move across to high school, of course, what was his experience like?  First of all, academically.

MS SARAH:  Academically, Kobe did extremely well.  He moved from an ICP4 in the previous year to an ICP5 which he received, from memory, Bs in both Maths and English.  In terms of the other subjects, with support he was able to attend History lessons, Geography lessons, Manual Arts lessons, and achieved passing grades at the same curriculum level as his Year 7 peers.

MR FRASER:  What about socially, was he making friends?  How did he go?

MS SARAH:  Socially he made a small group of friends, and I guess the highlight of that is that they would have their own space, they would be able to go to and do what teenagers do.  The highlight, I guess, that year for Kobe was he was invited to his first ever birthday party, which happened to be at a theme park at Movie World.  As you can imagine, somewhere like Movie World is a very sensory overloading place for Kobe, but the friendship group meant so much to him that he worked really hard to overcome those barriers.  Obviously I was with him for support, hanging back to allow him to be with his friends, and that was a huge achievement and just amazing for his self esteem.

MR FRASER:  And what was his relationship like with his teachers for Grade 7?

MS SARAH:  His teachers were very understanding.  They tried to understand Kobe's disability.  They tried to understand what his limitations were and they tried to understand and work with his strengths.  He developed really positive relationships.  In fact, they were so impressed within his very first week of Year 7 he received a Student of the Week award for making such an amazing transition.  I believe the year was so successful because of the planning that was put in place and the staff's ability to be able to follow those plans.

MR FRASER:  Now, we've talked about some positive relationships he had those years with friends, teachers.  Do you consider that they played a role in stabilising  
him throughout the year?

MS SARAH:  100 per cent.  Because he came to trust that they followed his plan or his plans.  He was able to, if he was becoming overwhelmed in a classroom, he knew and the teachers knew, because the plans were shared with the teachers, with all of the high school staff regardless of whether Kobe was in their class or not, and so Kobe was able to leave the classroom and go to where the HOSEs was, and there was a room next door, I think, if he was feeling completely overwhelmed and not able to regulate, he knew that he was able to stay in that room and not have to engage with anybody until he had been able to self regulate enough to then have a conversation with the HOSEs and either problem solve, or he was also able to go back to the classroom, collect his work and then, with the support of a teacher aide, go and find another quiet space around the school to complete the work.

MR FRASER:  Now, you yourself were a teacher at the same school that he was at for these Grades 1 to 7?

MS SARAH:  That's correct.

MR FRASER:  After Year 7 you decided to transfer Kobe's enrolment from School 1, where you were a teacher, through to School 2 because that was near your home, wasn't it?

MS SARAH:  Correct.  We had moved from the area near School 1 to the area near School 2.

MR FRASER:  And that was also a State school in Queensland, wasn't it?

MS SARAH:  That's correct.

MR FRASER:  What factored into your decision to change enrolment?

MS SARAH:  Kobe had had such a successful year in Year 7, he had developed some skills of independence, co-regulation, seemed to be doing well academically with the right supports, and I had been tossing up for a little while - was it fair to keep Kobe at a school with me to see him complete his secondary and senior secondary years and then at the end of Year 12 rip the band aid off and be away from Mum, and also have to go out and cope with being in the world.  So that was one reason.

The second reason is I was hopeful that Kobe, with his newly developed skills would be able to make some friends at his new school, School 2, that were living in our local area so that with some support he could be like most teenagers and maybe go and hang out with a friend or have a friend over without having to travel long distances.

Sorry, the third reason is that as I was hoping for Kobe to move to senior secondary,  
obviously employment opportunities within our local community.

MR FRASER:  In terms of that transition between schools, did you take any steps to assist that?

MS SARAH:  Yes, I did.  So I initially phoned School 2 at the end --- in about Term 3 when Kobe was still at School 1.  We had some discussions.  We were in touch again in sort of mid Term 4.  I had had discussions with Kobe as to whether he felt that he was able to move schools and whether that was a choice that he would like to make, to which he said, "Yes".  So it wasn't just my decision making on his behalf.  I also provided School 2 with all of the documentation from School 1.  So Kobe's individual support plan was provided to School 2.

MR FRASER:  Now, by the time he commenced in Year 8, was it your understanding that an individual student plan had been prepared for Kobe at School 2?

MS SARAH:  Look, I believe they had the plan from School 1 but as far as I'm aware, it wasn't developed any further to support Kobe's transition.

MR FRASER:  Between the two schools?

MS SARAH:  Correct.

MR FRASER:  To your knowledge, was a behaviour support plan provided by School 2?

MS SARAH:  I believe that very early in the year a behaviour support plan was developed to manage the behaviour, but not an ISP, an individual support plan.  I don't know, it was a bit concerning because I felt that from that point the School 2 were focusing on managing the behaviour rather than looking at making adjustments to support Kobe to experience success.

MR FRASER:  So Year 8 commences.  How did you perceive the supports Kobe was receiving in Year 8 at School 2 in comparison to what he had been receiving in Year 7?

MS SARAH:  I pretty quickly recognised that School 2 weren't providing very or any support or very little support to Kobe.

MR FRASER:  Can you give an example of what was missing that he had had previously?  Some teacher aides or the ---

MS SARAH:  Kobe had teacher aides helping him to transition between mainstream classes.  He had teacher’s aides that were able to assist him within mainstream classes.  School 2, Kobe was in a new school environment and there was an expectation for him to transition from one mainstream classroom to another with  
zero support.

MR FRASER:  Did that have an impact on his behaviour that you perceived?

MS SARAH:  Massively.  His anxiety increased and his behaviour began to deteriorate pretty rapidly.

MR FRASER:  And did you raise any concern with the school about, for example, the amount of teacher aide support being provided?

MS SARAH:  Yes, I did.  And I was told that the school resources couldn't stretch to provide the support for Kobe that he required.

MR FRASER:  At paragraph 48 of your statement you say that by the end of the second week of Term 1, he was finishing school at lunchtime.  What do you mean by that?

MS SARAH:  So often I was called to collect him or his father would be called to collect him.

MR FRASER:  And how would that arise, on what basis was it explained to you that you had to come and get him?

MS SARAH:  That he wasn't coping, that he was tired and seeming to be anxious.

MR FRASER:  In your statement you say that by April 2018, Kobe was only attending school for around three periods a day and was finishing school around 12.30 to 1.00 pm.  What discussions had you had --- first of all, that was the case, wasn't it?

MS SARAH:  That's correct.

MR FRASER:  And what discussions had you had with the school about that consistent early finishing?

MS SARAH:  I was under the assumption that it was only going to be temporary, and that it wasn't going to be ongoing.  I was told that it was being done so that Kobe could manage his anxiety whilst he continued to transition.

MR FRASER:  At that early time, say around April, was there any set plan or goals of when he would return to full time or normal hours, if you call it that, normal school hours?


MR FRASER:  By around April 2018 was Kobe taking any medications?

MS SARAH:  Yes, he was.

MR FRASER:  What were they?

MS SARAH:  So Kobe was on a number of medications including Ritalin for his ADHD and Risperidone, also referred to as Risperdal, which helps him manage behaviour.

MR FRASER:  And what was his general day to day experience by the school around this time, April, May?  How was he coping?  I'm referring here to around paragraph 48 of your statement.

MS SARAH:  His anxiety was through the roof.  His education was declining because he was rarely in class.  He wasn't coping because he wasn't getting the support that he needed, and he began fleeing from classrooms.  So his anxiety increased.  His behaviour escalated and frequent meltdowns ensued.

MR FRASER:  Commissioners, you will now hear from Kobe himself via a pre recorded interview.  For the technical team, the recording is at IND.0019.0002.0011.  Here he speaks about the importance of having a place to self regulate and to manage his ‘meltdowns’ as they're sometimes referred to.  I ask for that to be played.


FEMALE SPEAKER:  Was there a space you could have gone to at [bleep] ---

KOBE:  No, not at all.  Oh, yeah, there was.

FEMALE SPEAKER:  And they just didn't let you use it or you didn't ---

KOBE:  Yeah.  There was that little room.  But there was always so much going on around it.


KOBE:  Like it was in the break room and stuff.

FEMALE SPEAKER:  So, it was in a space that you didn't feel like you couldn't   

KOBE:  Yeah.

FEMALE SPEAKER:  --- access?

KOBE:  Couldn't regulate.


MR FRASER:  I think it has cut off a little bit at the end but for the record I think he says, "I couldn't regulate."

Sarah, your son was assessed, wasn't he, by an Education Queensland therapist in Term 2.  Can you tell us about that?

MS SARAH:  So the current HOSEs at the time recognised that Kobe was experiencing some significant difficulties, and he was prioritised for an immediate occupational therapy assessment in Term 2, and from that she was able to make a number of recommendations and adjustments that should be put in place to support Kobe.

MR FRASER:  So these were things like noise cancelling earphones to manage his auditory sensitivities.


MR FRASER:  A "hokki" stool.  What's that?

MS SARAH:  It's often referred to as a wobble stool.  It has a slightly curved base on the bottom and it allows for vestibular input which in some ASD individuals they can find calming.

MR FRASER:  It was also suggested there be a trial of suitable writing assistance implements to assist with his dysgraphia, and that he permitted not to write for more than two minutes, is that right?

MS SARAH:  That's correct.

MR FRASER:  And during school work, for 30 minute intervals, there was to be a 10 minute brain break so he could re set and return to learning, is that right?

MS SARAH:  That's correct.

MR FRASER:  The therapist also suggested he be allowed use an iPad to assist with his visual processing difficulties, is that right?

MS SARAH:  That's correct.

MR FRASER:  And a guide, "Zones of Regulation" program be used to guide him in regulating his emotions?

MS SARAH:  That's correct.

MR FRASER:  Do you consider that after that report was provided, that the school put those adjustments into place?

MS SARAH:  Look, they certainly provided a hokki stool and the noise cancelling headphones.  The use of an iPad was intermittent depending on the teacher and their views as to whether they felt it was necessary or not.  But certainly consistency between teachers and within teachers themselves --- consistency was lacking.

MR FRASER:  In particular with respect to the 10 minute brain break, you refer at paragraph 55 to an incident in June 2018 where Kobe fled the classroom.  Can you tell us about that, and obviously I take it you weren't there so you're talking about what Kobe has relayed to you.  What did he relay happened in June 2018?

MS SARAH:  So my understanding is that he had been engaged in a science lesson, and he was so engaged that he either forgot, and the teacher continued to allow him to work past the 30 minutes, and he actually completed the full 70 minute lesson.  And then, remembering that he needed to have a 10 minute break, he asked for that 10 minute break and it was given and then during the next lesson, which was numeracy, he also asked for his 10 minute break and was denied, because he was told that he had just had the 10 minute break from the science lesson.  The problem with that, Kobe can't recognise, whilst it was well and good and I appreciate that the teacher was thrilled that Kobe was engaged with the learning, the recommendation from the occupational therapist is that Kobe can't work beyond a 30 minute period because of fatigue, and then obviously once he becomes fatigued, his ability to be able to self regulate or co regulate dissipates fairly quickly.  And he fled the room.  He was given a timer to use.  Again, that was a great strategy but again if Kobe is working for 30 minutes, Kobe will often, because he is needing to concentrate so carefully on what he is doing, can't be responsible for remembering to use the timer.

MR FRASER:  You refer to some other occasions in your statement at paragraph 57 of other instances where Kobe had fled the classroom or had been involved in altercations which I will come to.  For this period of August and September 2018, for example, was Kobe continuing to take any medication throughout that period?


MR FRASER:  And what was that?

MS SARAH:  Kobe needed to transition from one medication, from Risperidone to another called Abilify.

MR FRASER:  What impact did you perceive that change of medication to have had on his behaviour in that time, if any?

MS SARAH:  Look, initially Kobe needed to be withdrawn from the first medication  
very carefully, and step by step.  Once he had zero of that in his system, his behaviour, as I would call it, went sideways, and he wasn't at school during that period of time.  Once Kobe commenced with the new medication, it was on par with the dose that he was having of the previous medication.  And I guess the marker that the psychiatrist was looking for to make sure the dosage of the second medication was adequate was Kobe's behaviour at home.

MR FRASER:  And how was he at home?

MS SARAH:  So once he had transitioned to the second medication his behaviour at home was as manageable as it was on the first medication.  I mean obviously his behaviour was still of serious concern and had increased because of anxiety caused at school, but in terms of being able to be assisted to co regulate and self regulate, the similarities between the two medications were the same.

MR FRASER:  You mentioned he was suspended in August of 2018.  Can you tell us the circumstances around that suspension?

MS SARAH:  The one in August or the one in September?  The two that were right next to each other?

MR FRASER:  I will ask you about September.  There was an incident in September that resulted in a suspension.  Can you tell the Commission about the circumstances of that?

MS SARAH:  So Kobe had been involved in a physical altercation which was very unusual.  Kobe, when he loses the ability to regulate, will generally look for a tree to kick, a wall to kick, or he will generally try to walk away from the situation.  So the fact that he had a physical altercation with another student was very concerning.  He received a suspension for that.  He returned to school on the Monday and there was a particular teacher that had been continually breaking Kobe's plan.

MR FRASER:  What do you mean by that?

MS SARAH:  The plan for the brain break.  There was one particular teacher, the same teacher who caused Kobe to flee from the room during the Science/Numeracy lesson, she had been spoken to on numerous occasions about the importance of keeping to that plan.  It was decided that Kobe would be --- so my partner and I were at a re entry meeting.  We finished at the re entry meeting.  Kobe arrived at school via taxi in order to keep his routine.  We said goodbye.

After we left, to my knowledge, the Principal came down to Kobe and gave him a timetable and said "You are having a timetable change this week, you are the only student in your special education class to have a timetable change."  Myself or Kobe's father were not notified about the timetable change, and in fact I had had prior conversations with both the HOSEs and the case manager the week previously to say that I actually didn't support the timetable change.  I felt that Kobe and the  
teacher and the school needed to work together to support and resolve that situation.

So on the Monday, Kobe --- and I wasn't aware of this at the time --- on the Monday after the Principal left, Kobe was taken into one classroom, I believe with Year 7 students.  He was segregated from those students.  He had asked if he could sit with them and the teacher said no.  It's my understanding that he was confused, upset, distressed.  Kobe doesn't cope with transitions and change that have been a regular and routine part of his life since he was 2 years old.

MR FRASER:  And so what happened to Kobe at this time?

MS SARAH:  So on the second day Kobe went to class again and he was placed into another classroom with another group of students and again segregated from them.  Whilst the teacher aide was going to source Kobe's work, something happened with the laptop and Kobe became heightened.  He was --- somebody went to get his case manager, she came, and she went into the withdrawal space that Kobe was speaking about previously, and she began to engage in a verbal conversation with Kobe, again breaking his plan.  It states in his plan that when Kobe is heightened, do not make eye contact, do not have a conversation with him whilst he is heightened.  This teacher continued to write down in a notepad, everything that Kobe was saying.  She asked him if he got these behaviours from home.  Kobe then became --- my understanding is, you know, very stressed.  Had asked her numerous times to stop and go away to which she continued to write all the notes down in the notepad, explaining to Kobe that she was going to be putting all of this on OneSchool.

MR FRASER:  How did he respond to that?

MS SARAH:  He asked --- he said, "If you don't F off I'm going to get a shiv out of my bag and I'm going to stab you."

MR FRASER:  And what happened after that?

MS SARAH:  Just for the record, Kobe didn't have a shiv in his bag.  The only thing found in Kobe's bag was a pencil.

MR FRASER:  I understand that.  What happened after that remark was made?  He was then suspended, I take it?

MS SARAH:  That's correct.

MR FRASER:  And did you indicate to the school at that time that you thought that behaviour, aggressive behaviour was related to his hormones kicking in after a recent change in medication?

MS SARAH:  Yes, I did indicate that.  So Kobe had, as I explained earlier, a delayed onset of puberty and it was questionable as to whether the original medication was stopping Kobe's body to be able to manufacture luteinising, stimulating hormone,  
which is responsible for the manufacturing of testosterone.  With the change in medication, I questioned maybe whether the hormone level that was too high, prolactin, had dropped and therefore a natural progression of the other two hormones had begun.

Kobe had blood tests shortly after that exclusion, which was requested by his paediatrician and endocrinologist, and it actually demonstrated that both of those male hormones were zero.

MR FRASER:  And what do you consider, what did you perceive that to mean?

MS SARAH:  So the behaviour wasn't as a result of puberty as I had questioned.  It may have been.  It was a result of supports not being put in place for the last nine months, even though Kobe was only at school on a part time basis, still not being provided with the support that he needs.

MR FRASER:  If I can come to an incident in October 2018, Kobe was suspended again, wasn't he?  Is that right?

MS SARAH:  That's correct.

MR FRASER:  And the circumstances as you understood them again, as explained to you by Kobe I take it, were that he had had his 10 am PEG feed, and he indicated that he didn't want to go back to class after that?

MS SARAH:  That's correct.

MR FRASER:  Then what had happened?

MS SARAH:  So Kobe became upset, distressed.  I believe from memory it was with the HOSEs.  The HOSEs was sitting inside her office and Kobe began banging on the windows and kicking at the bottom of the building, and was swearing and using disrespectful language toward the HOSEs.

MR FRASER:  And after he was suspended --- he was suspended for verbal abuse, wasn't he?

MS SARAH:  That's correct.

MR FRASER:  Did you indicate to the school that --- did you agreed with the suspension for verbal abuse?

MS SARAH:  Yes, I did.  I don't condone Kobe's physical or verbal misconduct.  As his mum, however, when he demonstrates those types of behaviours at home, I try to understand what's the function of the behaviour because it's always triggered by something.

MR FRASER:  Did you arrange a meeting between the school and Kobe's treating psychiatrist after that on 31 October 2018?

MS SARAH:  Yes, I did, at the Principal's request.

MR FRASER:  And what happened at that meeting?

MS SARAH:  So when I got to the appointment which was actually two days after the Principal and I had had a conversation.  Firstly, the psychiatrist was quite reluctant to speak to the Principal.  Whilst I was at the appointment the Principal called on my phone, we put the phone on to speaker.  The Principal indicated to the psychiatrist that he had previously worked with individuals that had personality disorders.  He also indicated to the psychiatrist that he felt Kobe demonstrated some similar characteristics of those individuals that he had previously worked with.

MR FRASER:  And what did the psychiatrist say?

MS SARAH:  The psychiatrist was very clear with the Principal and said that "Kobe does not have a personality disorder."  He said "Kobe has very severe level 3 functional autism."

MR FRASER:  And did he make any recommendations about how the school could support Kobe?

MS SARAH:  The Principal asked what he could do to help Kobe self regulate, to which the psychiatrist said it's beyond Kobe's ability to be able to self regulate particularly when he is heightened.

MR FRASER:  Was there any recommendation as to how he could be assisted?

MS SARAH:  Yes, the recommendation that the psychiatrist put in place was that the school use their resourcing to build a team of people to get to know Kobe, to understand and identify what his triggers are, so that when they could see Kobe was becoming heightened and something was triggering him, they could use support strategies, I guess, to circumvent a meltdown.  But he also suggested that, you know, to help Kobe as he's getting older in terms of dignity, that when they're particularly walking through school grounds, that the person shadow Kobe rather than walking side by side.

MR FRASER:  Did the psychiatrist confirm that the approach taken by the school was appropriate?

MS SARAH:  No, he did not.

MR FRASER:  Commissioners, we've heard some instances of Kobe and Sarah's perception of the plan, school plan not being followed.  We have an excerpt from Kobe about how he felt when he considered the plan put in place to assist him wasn't  
being followed.  That's IND.0019.0002.0002.  I would ask that to be played and then followed by a separate extract IND.0019.0002.0002.


KOBE:  And a bit upset, honestly, because I liked [bleep] because she's a good person.  She just got involved with the wrong people.

FEMALE SPEAKER:  Okay.  So do you think maybe that some of --- part of it was anger and then maybe there might have been, do you think ---

KOBE:  An element of trust, actually.

FEMALE SPEAKER:  So, you felt that maybe ---

KOBE:  I could trust her and then she ruined it.

FEMALE SPEAKER:  You felt that she broke your trust   

KOBE:  Yep.

FEMALE SPEAKER:  --- by not following the plan?

KOBE:  Mm, mm.


CHAIR:  Mr Fraser, you gave the same number for each of the extracts.  Did you mean to do that?

MR FRASER:  I didn't Chair, the next one is 0002 ending.  I think the technical team is better at this than I am.

CHAIR:  I'm sure they are.  But I'm wondering if they've got the right number for the next extract.


FEMALE SPEAKER:  So when you were at [bleep], okay.

KOBE:  When [bleep] weren't following the plan, it set me off hard.

FEMALE SPEAKER:  Yep.  So when --- for people that maybe don't know you as well as we do, when you say "set you off", what did that look like?

KOBE:  Me getting upset [bleep].

FEMALE SPEAKER:  Yep.  Getting really angry?

KOBE:  Mm hmm.


KOBE:  Because the plan is there for a reason.  It should be followed.


MR FRASER:  Now, Commissioners, that was in contrast to how Kobe has expressed how he felt about School One, his first school.  Technical team, the next recording is IND.0019.0002.0003.


FEMALE SPEAKER:  So, so most of the time you felt that maybe they --- they --- you didn't feel like you could trust them?

KOBE:  Yeah.

FEMALE SPEAKER:  Is that what you're saying?

KOBE:  Mm hm.


KOBE:  Because at [bleep] I could trust everybody.

FEMALE SPEAKER:  Yep.  So even if you had a bad experience, a bad moment, you still felt that --- you still felt that you were safe ---

KOBE:  Yeah, yeah.

FEMALE SPEAKER:  --- and that you would be able to work it out?

KOBE:  Yep, of course.

FEMALE SPEAKER:  But at [bleep] you didn't necessarily   

KOBE:  Nup.

FEMALE SPEAKER: --- feel that?

KOBE:  No.


MR FRASER:  The beeping occurs when he names School One.

MS SARAH:  Mr Fraser, can I just add to the conversation previously about the psychiatrist.  That conversation finished with the Principal asking what advice the psychiatrist would give if Kobe was demonstrating very unsafe behaviours.  The recommendation the psychiatrist made was that the special education building, the block, or the school, if necessary, be put into lockdown to keep students and staff safe.

The Principal then asked what advice he could give in terms of keeping Kobe safe if everybody else was in lockdown, and the advice from the psychiatrist to the Principal was to call 000.

MR FRASER:  Thank you for that.  If I can move to a slightly different topic.

CHAIR:  Just before you do, Mr Fraser, could you help us please on one matter.  The extract that was just played, who was asking questions of Kobe, please?

MR FRASER:  That is --- a support worker is the person asking the questions in those interviews, in that interview.

CHAIR:  Thank you.

MR FRASER:  Now, from paragraphs 58 to 61 of your statement, you outline what you perceive to be --- what you describe as the school's indifference to finding practical solutions and the difficulties you experienced in trying to get staff to be consistent.  That's what you deal with there, isn't it?


MR FRASER:  And this included you trying to offer solutions, including offering some of Kobe's external support providers to assist him with school; is that right?

MS SARAH:  That's correct.

MR FRASER:  Including a behaviour specialist to provide advice?

MS SARAH:  That's correct.

MR FRASER:  Were those recommendations or suggestions by you taken up?

MS SARAH:  No, they were not.

MR FRASER:  You also requested to meet all of the staff involved in educating Kobe; is that right?

MS SARAH:  Correct.

MR FRASER:  And did that occur?

MS SARAH:  No, it did not.

MR FRASER:  Did a meeting occur, you were able to cause a meeting to occur with some staff?

MS SARAH:  After a complaint I made to Regional Office, they suggested that I ask for a stakeholder meeting with all parties present including Kobe's teachers.  When I --- and I emailed to ask if that was going to be happening, to which I got no reply.  I arrived at the meeting with my partner, and it was simply the Head of Special Education and the Principal present.

MR FRASER:  In the interests of time, you refer at paragraph 64 of your statement to asking the school to complete a "complex needs submission" for Kobe several times.  First of all, what do you understand a complex needs submission to be?

MS SARAH:  So a complex --- my understanding is that when a child or a student is in crisis, and the supports that they are currently using aren't effective and they've run out of resourcing, they can apply to get extra funding and extra resourcing.

MR FRASER:  And why did you want the school to make such a request for Kobe?

MS SARAH:  Because Kobe was struggling.

MR FRASER:  When did you first make the request for the school to make that submission?

MS SARAH:  Early 2018, and then again in May of 2018.  And then again in June, I asked the Principal.  His reply was that there was “no evidence” and that “Kobe was progressing so well”, yet his timetable was being reduced.  Sorry, I asked again in October and was told that no submission was being made, and that it was a difficult  

MR FRASER:  From your understanding, are you aware if a submission was ever actually made or an application made for a complex needs assessment?

MS SARAH:  I believe by the end of 2018 that they may have begun one.  But I don't know that it was actioned any further.

MR FRASER:  Now, you've mentioned some occasions in particular about where you consider that Kobe's plan for adjustments wasn't followed.  Were there occasions where you considered School 2 was doing a good job in implementing his plan?

MS SARAH:  Initially probably in the first term, although Kobe's hours had been reduced and he never made a full time return to school, I do believe that the HOSEs at the time did try to understand the level of support that Kobe needed and tried to put some adequate supports in place.  For example, she was able to organise the prioritisation of the occupational therapist assessment.  There was also a really amazing teacher aide who worked in an administration role within the Special Education Unit who always checked in with Kobe every morning to see how he was.

MR FRASER:  What about as to behaviour, so looking for an alternative course rather than, for example, suspending?


MR FRASER:  From your statement, you talk about the impact of a change in case manager.  I think just then you referred to one particular case manager in a positive way.  Was there a change in case manager and what impact do you think that had?

MS SARAH:  There were many changes in case managers.  So Kobe had one, two, three, four case managers just in 2018.  The first of those case managers was amazingly supportive and tried to understand Kobe's complex needs.  The second, and I really feel that this was instrumental in where things started to take a turn for the worst, she continually broke the plans.  She didn't understand the function of Kobe's behaviour.  She labelled him and called him “a bad, bad boy”, something that still resonates with him on a daily basis.

MR FRASER:  You have referred to some instances of suspensions, so formal suspension type --- where he is directed to stay home from school by a written document, for a formal suspension?


MR FRASER:  In your statement at around paragraphs 81 to 83, you indicated that the number of behaviour incidents at School 2 was double that for the two years at School 1.  Were you concerned about that increase?

MS SARAH:  That was really concerning.  I felt that they were punishing him for his behaviour rather than understanding the reason for it and proactively trying to find and put preventions and solutions in place to prevent the behaviour.

MR FRASER:  How many times was he suspended?

MS SARAH:  So Kobe was suspended four times during the short time that he was enrolled at School 2, including twice in less than two weeks in September 2018.

MR FRASER:  Which we referred to previously?

MS SARAH:  That's correct.  And can I again remind that this was on reduced hours.

MR FRASER:  One of those was for holding a student up against a wall, wasn't it?


MR FRASER:  And you've seen the school records that describe that as a minor physical altercation?


MR FRASER:  You understand the need for schools to protect students from physical altercations?

MS SARAH:  Yes, of course.

MR FRASER:  As a teacher you understand that?


MR FRASER:  Sometimes by suspension or expulsion of a student that was using force against the other student?


MR FRASER:  But on the occasion as it applied to Kobe, on that occasion, you say in your statement you considered that suspension was overly harsh and punitive.  Why do you say that?

MS SARAH:  So whilst there was a physical altercation, I guess if you --- physical abuse, altercations are never okay.  But I guess if you looked at it in terms of the eyes of the law, it wouldn't be something that he would be charged with assault.

MR FRASER:  Well, what had happened on that occasion?

MS SARAH:  So he had a student that had been antagonising him, we call it “poking  
the bear”.  And this particular student, from my understanding ---

MR FRASER:  From Kobe.

MS SARAH:  From Kobe, started poking the bear and knowing that the bear will roar quite loudly.  The school seemed just to want to punish him and label him “a naughty boy”, again, rather than trying to understand what triggered the behaviour.

MR FRASER:  Picking up from earlier, you mentioned that Kobe was finishing school early.  Did you ever seek to have his attendance hours increased?

MS SARAH:  Constantly.

MR FRASER:  And tell us about that.  What went on?

MS SARAH:  So initially when his hours were put back at the beginning of the year, I thought that that was probably fair and reasonable to begin with, to give him a little bit more time to get used to the physical environment, you know, the people at the school and just the change in routine.  But as time went on, my understanding is if you have a flexible arrangement, Kobe should either have been catered for at another school which could support his needs, or the school should have been supplying work for Kobe to be able to complete at home at his particular learning level.

MR FRASER:  Has that happened?


MR FRASER:  Did you ever request that there be some documentation put in place around Kobe's hours at school?

MS SARAH:  I did.  In July of 2018 I had another meeting with the Principal and the HOSEs.  I asked about the documents which are called a reduced program of instruction, which set out the reduced hours.  They set goals as to how the school working with the family are going to support the student to make a full time return to school.

At that point the Principal looked at the HOSEs and said "I've never heard of those documents."  The HOSEs shrugged her shoulders and the Principal's comment was, "Even if I did, as the Principal, if I don't want to use those documents, I don't have to."

MR FRASER:  Now, in early 2019, this is his second year at School 2, so this is Grade ---


MR FRASER:  --- 9.  There is a distressing incident at the school for which Kobe  
was excluded.  Now, to your knowledge, did the school have a Crisis Management Plan in place for Kobe around this time?

MS SARAH:  Yes, they did.  It was developed at the very end of 2018.

MR FRASER:  What is your understanding of that plan?

MS SARAH:  A Crisis Management Plan is when a student who is in crisis and beyond the ability to self regulate or co regulate, it's a document to put plans in place to keep everybody safe.  There's a procedure to follow.  It keeps Kobe safe, staff safe and other students safe.

MR FRASER:  And very briefly what was your knowledge of what that entailed should happen for Kobe when he was heightened or having a meltdown as you've referred to it?

MS SARAH:  So one is for Kobe to have a quiet space to be able to retreat to.  If Kobe flees --- which prior to being at School 2 he previously never left school grounds --- so, don't follow after Kobe.  Don't make eye contact with Kobe.  Let Kobe, in the space, have the ability to calm and to regulate, and acknowledging that sometimes that may take up to an hour.  Wait until Kobe is calm and then speak to him about the situation, rather than trying to address the situation whilst he's heightened.

MR FRASER:  Now, that incident in February 2019 we've referred to, what happened?  Again, I take it your knowledge is based on what Kobe told you?  Is that right?

MS SARAH:  And a number of incident reports that ---

MR FRASER:  And what's your understanding of what happened in February 2019 on the day that caused his ultimate exclusion?

MS SARAH:  So Kobe was sitting outside the Special Education Unit with a friend.  There was another student, it was under a pergola.  As you know, aluminium pergolas can be quite noisy and echoey.  So there was another student who was at the bubbler's who had a stick in the bubbler, and was banging the stick in the bubbler.  It was quite noisy.  Kobe was able to acknowledge it was distressing him.  He asked the student to stop.  The student continued to do it knowing, believing that --- he knew that it was causing agitation for Kobe.  Kobe said if he didn't stop he was going to get him.  To which point Kobe stood up, the other student began to run off.  Kobe ran after him, grabbed, I believe, the strap of his backpack.  The other student turned around and punched Kobe in the arm, leaving significant bruising on his arm.

The teacher or the case manager, I'm not sure who, came and took Kobe into the quiet space, and it was at that point that Kobe --- so normally when Kobe is in that space, he had been allowed to have his laptop.  At that point Kobe was told that he  
was no longer allowed to have his laptop.  So again, another immediate change, unexpected change, which is also part of Kobe's plan that there's not to be immediate or unexpected changes.

I had had a conversation with the Deputy of Inclusion two days prior to that, very concerned about Kobe's progress and his deterioration of his behaviour, and we had agreed that, while he was in that room, it was probably a good idea that he didn't have his laptop, because prior to that I actually wasn't aware that when he was in there with his laptop, he was actually being allowed to watch WWE, which is wrestling.

MR FRASER:  You agreed it was a good idea for him not to have the laptop.  Coming back to the day of the incident, he wasn't allowed to have it?

MS SARAH:  Yes, so Kobe hadn't been informed about the change, and usually --- as part of Kobe's plan, when there are changes made, so Kobe needed to have been taken into that room, talked about not having the laptop, and then basically rehearse “what other options do I have if I don't have my laptop?”  “Could we go to the library and get some books?”  “Could I have some sensory or otherwise known as fidget toys I might be able to use to help me calm?”

So that unexpected change was ultimately a trigger that caused Kobe to become very distressed, highly volatile.  He went outside of the building and began kicking doors and windows.  The building, the SEP building was put into a lockdown.  However, there was one particular teacher, and my understanding of a lockdown is that all doors are closed, all teachers are inside with their students protecting their students from the harm that is outside of the building.  There was one particular teacher that stood in the doorway with the doorway open.  Kobe --- it was a very hot day and Kobe expressed that he was hot, he was sweating, he knew that he could get through that door into an internal kitchen which is where his feeding equipment was and his lunch box with his drink bottle.

As he approached the doorway the teacher was standing there WWE style.  Kobe said, "Come on, do you want to F ing fight?"  To which the teacher said, "Bring it on".  Kobe began to wrestle with the teacher and kicked the teacher in the shins.

MR FRASER:  And you were called to the school?

MS SARAH:  I was called to the school, yes.

MR FRASER:  And obviously you've gone home and after that was Kobe --- you were informed that Kobe was going to be suspended?

MS SARAH:  So when I went to collect Kobe, I found Kobe sitting in that particular room with his laptop rocking back and forth in almost a catatonic state.  I had had a conversation with the Deputy Principal before we went to get Kobe.  Kobe looked at her and said, "Am I going to be suspended?"  She said "No, you need to be at school  
tomorrow, mate."

MR FRASER:  And what was the next step, what happened then?

MS SARAH:  I left Kobe at home with my partner, I had needed to return to work.  On the way home from work I got a phone call from the Principal saying that Kobe couldn't come to school whilst they do an investigation.

MR FRASER:  Was he then in fact suspended?

MS SARAH:  At that point in time he didn't use the word "suspension".  I put support plans in place for Kobe, and I needed to try to make a return to work.  I had a week off work and I tried to get information as to whether he was actually suspended.  I engaged the autism coach.  She was able to communicate with the school who came back and eventually said it's a 20 day suspension, pending exclusion.

MR FRASER:  And then on 1 March 2019 you received formal notice of the school's decision to exclude Kobe from school for a period of 12 months, and that notice was dated 28 March 2019; is that right?

MS SARAH:  That's correct.

MR FRASER:  Commissioners, I have another 10 minutes, I think.  I'm conscious of the time.

CHAIR:  Yes, Mr Fraser.  I was just thinking that you are experiencing the form of inaccuracy that is unique to barristers, that is inability to estimate time accurately.


CHAIR:  But how long do you think you will need, and I want to make sure that Sarah's okay and doesn't need a break if you're planning to continue for another little while?

MR FRASER:  Commissioners, my preference would be, subject to of course your direction, would be to take a break now until 11.35 and then return for the 10 minutes or so to finish this evidence and then proceed directly into the expert evidence of Kate de Bruin.

CHAIR:  Well, that's fine.

Sarah, is that okay with you if we take a break now for 20 minutes and then return for 10 minutes that Mr Fraser, this time, has accurately estimated?

MS SARAH:  Yes.  Thank you, Commissioner.

CHAIR:  Okay.  We will take a break until 11.35 Brisbane time and resume in 20 minutes from now.  Thank you.

ADJOURNED    [11.15 AM]

RESUMED    [11.36 AM]

CHAIR:  Thank you, Sarah and Mr Fraser.  Your 10 minutes starts now.

MR FRASER:  Thank you, Chair.

Before the break I had asked you about --- so you indicated you received formal notice of the decision to exclude Kobe for 12 months on 28 March 2019.  How did you feel on receiving that notice?

MS SARAH:  Mind blown, that it was a 12 month exclusion.  I guess my thinking was, very gracious of the Principal but in 12 months' time that I would take Kobe back and he wouldn't be autistic any more, and that he wouldn't need the level of support that wasn't provided for him previously.

MR FRASER:  What impact did it have on Kobe, your son?

MS SARAH:  Kobe has been destroyed.  He had hopes and dreams and aspirations, very large ones, from a very young age of becoming a police officer.  He's now left not having even finished his Year 10 education and he is so traumatised.  In fact in March this year he was diagnosed by the psychiatrist with PTSD and the severity of that has seen him unable to exist or cope in any kind of education setting.

MR FRASER:  Now, Commissioners, we have a pre recorded excerpt from an interview with Kobe where he expresses how he doesn't want his friends to think less of him on the basis that he got expelled.  Technical team, this recording is IND.0019.0002.0007.


KOBE:  I want somebody to go out there and tell them it wasn't my fault that I got expelled.

FEMALE SPEAKER:  So, you want them to tell your friends?

KOBE:  Yeah, my friends.

FEMALE SPEAKER:  That --- okay.  So one of the things that –

KOBE:  Yeah, I feel like they'll would think more of me --- like, less of me, sorry.

FEMALE SPEAKER:  Okay.  So what you've --- was one of the things that worried you with the incident is because you didn't get to tell your side of what happened ---

KOBE:  Yeah.

FEMALE SPEAKER:  --- that you think that maybe they'll think less of you?

KOBE:  Yep, [indistinct] my good friends' ears.

FEMALE SPEAKER:  Okay.  Because of what happened?

KOBE:  I don't know.  That's the thing, I've got no clue.

FEMALE SPEAKER:  So one of your   

KOBE:  That's why it's given me anxiety.

FEMALE SPEAKER:  So one of the things that's worried you   

KOBE:  Is people's perceptions of you.

FEMALE SPEAKER: --- is people's perceptions of you?

KOBE:  Yeah.

FEMALE SPEAKER: And you're worried that maybe they haven't contacted you and reached out    

KOBE:  Yeah, yeah.

FEMALE SPEAKER:  --- because of what happened?

KOBE:  Yeah, yeah.

FEMALE SPEAKER:  Yeah, that's pretty understandable.

KOBE:  Yeah. So it's not on anybody's [indistinct] to let them know that it wasn't my fault.


MR FRASER:  After he was excluded, you took some steps to find alternate schooling for him, alternate enrolment.  What did you do?

MS SARAH:  Immediately I was pretty overwhelmed.  I then had an initial conversation with the autism coach and the Senior Guidance Officer at Regional Office.  Some school work was sent home initially for Kobe but then there was nothing in the interim.  There was a suggestion made by the Senior Guidance Officer in that meeting, probably on three occasions, that I should home school Kobe whilst I have a full time employment.  So we worked to try to find another placement for Kobe.  In fact there was a suggestion made that Kobe attend the school where my daughter was completing her Year 12 education.  Obviously that wasn't going to be a great option because it would have been disruptive for her schooling in terms of the responsibility that she likes to take for her brother.

MR FRASER:  And were you ultimately able to find a new school for Kobe to start at?

MS SARAH:  Yes, I was.  It was an alternative school for basically disengaged youth.

MR FRASER:  He started there in September of 2019?

MS SARAH:  That's correct, (a) we needed to wait for a placement and (b) we needed to wait for Kobe to be, I guess, have enough psychological capacity to enter back into a school type environment.

MR FRASER:  And when he started with the new school, how did he go?

MS SARAH:  It wasn't --- he struggled.  He was there for three hours a day, three days a week.  The school were remarkable.  He had a psychologist working with him and they provided him in the three hours that he was there, for the three days a week, one on one support.

MR FRASER:  And how long did he stay at the school for?

MS SARAH:  So due to the PTSD, Kobe finished at the school in March of this year, March 2020.

MR FRASER:  And have you been able to find a new enrolment for him yet?  What has happened in that respect?

MS SARAH:  No, Kobe's behaviour has regressed so severely that he is currently at home and supported by NDIS workers during the day who struggle to get him to engage in society, in basic daily activities that most teenagers would love to be going to do.

MR FRASER:  Now, you've talked about the impact on Kobe, of course.  What has  
been the effect on the balance of your family?

MS SARAH:  So I've been diagnosed with PTSD, depression, and a panic disorder.  My daughter was able to finish Year 12 but during the period of the exclusion, it was when she had some assignments and some exams due, and she was so distressed that I needed to speak to the school and ask for exemptions.  She has since also been diagnosed with a Generalised Anxiety Disorder because of the trauma that has been caused for us.

MR FRASER:  Following on from the experience of Kobe and your family, what would you like to see come out of this Royal Commission?

MS SARAH:  I know I'm speaking on behalf of Kobe, and I think --- I guess there are a number of recommendations that I have asked for and they are in the complaint, or the statement.

But I guess the two largest things: one for Kobe, he has requested that there be more training to help not just teachers but ancillary staff and particularly leadership --- people in leadership roles, for them to understand autism and know how to support individuals with autism, rather than judging them because of their behaviour.

Personally, I would like more checks and measures in place in terms of school based decision making within the Education Act and a Principal's power to be able to do that.  I believe that a Principal should have accountability to make decisions, but within constraint of the Education Act.

MR FRASER:  Thank you.

Commissioners, subject to any questions that you may have of Sarah, I will first of all play two final recordings and then leave some time for any questions, and that will be the conclusion of this witness's evidence.

Finally, Kobe has expressed himself what he considers to be the most important thing for teachers to understand.

For our technical team these recordings are back to back, first is IND.0019.0002.0006 starting at 00:00:06, followed by IND.00019.0002.0008 starting at 00:00:25.

CHAIR:  Yes.  Thank you.


FEMALE SPEAKER:   That's all right. Do you think it's important that teachers understand that ---

KOBE:  [Indistinct]

FEMALE SPEAKER:  Do you think it's important that teachers understand that not all kids with autism are the same too?

KOBE:  Yep.

FEMALE SPEAKER:  So --- because ---



FEMALE SPEAKER:  .... If you had that magic power --- like, I know you don't but if you had a magic power that could change how teachers showed up for kids with disabilities, what do you reckon would make a big difference?

KOBE:  Have more understanding.


MR FRASER:  It's cut off, but for the record, he says “have more understanding and have more patience”.  Commissioner, subject to any questions, that's the conclusion of this evidence.

MS SARAH:  Mr Fraser, may I add one thing, just a quote I would like to share.

CHAIR:  Go ahead.

MS SARAH:  Thank you.

When a flower does not bloom, you fix the environment in which it grows, not the flower.

MR FRASER:  Thank you.

CHAIR:  Thank you, Sarah.

I will ask the other Commissioners if they have any questions.  I will start with Commissioner Galbally.

COMMISSIONER GALBALLY:  No questions.  Thank you.

CHAIR:  Thank you.  Commissioner Atkinson?

COMMISSIONER ATKINSON:  No questions.  Thank you very much.

CHAIR:  And Commissioner Mason?

COMMISSIONER MASON:  Yes.  I have one question.


COMMISSIONER MASON:  You talked about Kobe's support plan and how that support plan was critical to giving him certainty and consistency in his education experience.  You also in your evidence spoke about some teachers opting out of adhering to Kobe's support plan and in his own words he has talked about teachers having more patience and more understanding.

Are you able to, in summary, talk about what that experience for you, given in light of what you shared about in terms of diagnosis that you've had through this experience, what teachers could understand about that experience of them opting out of the support plans, and what that means to families, and particularly to people that are really standing with their children?

MS SARAH:  So I'm a firm believer that schools and families need to work together to make decisions that are in the best interests, not only of the student, but obviously with the interests of the safety of other students and the safety of staff.  But I feel that when teachers make decisions, they do need to stop and think that the decision that they make is far more reaching than the immediate classroom that they're in, and that the impact that it has on that child when that child goes home. And then I guess the family then need to work with the school to resolve that and when it happens repeatedly, it's soul destroying.  I think teachers really need to be aware that the decisions that they make, as I said, are not just within the implications of those that are just not within the four walls of the classroom that they're working within.


CHAIR:  Sarah, I would like to thank you and Kobe for sharing your experiences with us.  We know that it's not a really easy thing to do, and we appreciate you giving evidence and Kobe's contributions that were pre recorded and that we heard, and we also appreciate the manner in which you've given your evidence today.

Thank you very much for your assistance to the Royal Commission.

MS SARAH:  Thank you.


MR FRASER:  Commissioner, the next witness is Dr Kate de Bruin who is appearing via videolink.  I request an adjournment for two minutes to allow that to be put in place.

CHAIR:  Yes, thank you.  We will adjourn for a couple of minutes and resume once Dr de Bruin is in place.

ADJOURNED    [11.50 AM]

RESUMED    [11.52 AM]

CHAIR:  Yes, Mr Fraser.

DR MELLIFONT:  It's me, Chair.

CHAIR:  Yes, Dr Mellifont.

DR MELLIFONT:  Thank you.  The balance of the day, we will hear from Dr de Bruin and Associate Professor Poed.  Dr de Bruin's evidence will go up to and after lunch, followed by Associate Professor Poed.

Before I formally call Dr de Bruin, I'm grateful to Commissioner Galbally who requested I note, and in the interest of abundant transparency, the following.  Each of the curriculum vitae of Dr de Bruin, Associate Professor Poed and Professor Graham reflect a current or past association of one nature or another of the advocacy organisation All Means All.  Commissioner Galbally was, of course, past patron of that organisation for the 12 months up to June 2019.  Commissioner Galbally met the three witnesses since that time in the course of her work with this Commission.  As I say, I'm grateful to Commissioner Galbally making that request of me and for the opportunity for me to place that on the record.

I call Dr Kate de Bruin.

CHAIR:  Dr de Bruin, thank you for coming to give evidence to the Royal Commission.  I will ask you, please, to take the affirmation and if you wouldn't mind following the instructions that are given or will be given by Commissioner Atkinson's associate.  Thank you.


CHAIR:  Dr de Bruin, just to explain in case you're not aware, Dr Mellifont is in Brisbane at our hearing room in Brisbane.  Commissioners Atkinson and Mason are also there.  Commissioner Galbally is in Melbourne.  I am in Sydney.  This is how we work.

DR MELLIFONT:  Commissioners, you will find a copy of Dr de Bruin's statement in Tender Bundle B, Volume 4.  I asked to tender this statement in evidence and ask that it be marked as Exhibit 7.113.  You will find material annexed to this statement in Tender Bundle Part 2, Volume 2, Tabs 27 to 29.  I ask to tender this material into evidence and that it be marked as Exhibits 7.113.1 through to 7.113.3.

CHAIR:  Yes.  Thank you, that can be done.




DR MELLIFONT:  Thank you.

Doctor, can you state your full name, please?

DR de BRUIN:  I am Dr Catriona de Bruin, known as Kate.

DR MELLIFONT:  You've made a 83 page statement dated 29 September 2020?

DR de BRUIN:  Yes.

DR MELLIFONT:  Are the contents true and correct to the best of your knowledge?

DR de BRUIN:  Yes.

DR MELLIFONT:  You are a senior lecturer in Inclusion and Disability in the Faculty of Education at Monash University, having worked in that faculty since 2014?

DR de BRUIN:  Yes.

DR MELLIFONT:  Now, a copy of your curriculum vitae is part of the tendered material and its document ID is EXP.0044.0002.0039, and in summary it sets out your extensive experience in your field.  Part of that has been doing some --- I don't need the document brought up, thank you.

Part of that experience has been doing some academic advisory work for All Means All.  Is that correct?

DR de BRUIN:  That's correct.  I believe on a couple of occasions, I provided some academic feedback as part of an academic board.

DR MELLIFONT:  Your curriculum vitae is extremely extensive.  We want to get to the essence of your evidence today.

As to your teaching role, you lecture in inclusive education with a focus on disability, discrimination legislation and policy, inclusive system transformation as well as evidence based professional practice.  Is that correct?

DR de BRUIN:  That's correct.  I've undertaken a number of elements of development of unit and course development within the faculty.  Early on that was with a focus on pre service teachers in what we call initial teacher education.  And I ran that course for five years.  I also since - overlapping with that and since then - I've developed, coordinated and taught half of the core units that are run in the inclusive education specialism that's run as a postgraduate course within our Masters program.  It's typically offered to qualified and experienced teachers who undertake further study in this area.

DR MELLIFONT:  Thank you.  Now, what is evidence based professional practice in that context?

DR de BRUIN:  The term is most commonly used to refer to a practice that has shown to be beneficial and effective for a substantial quality of --- quantity of high quality peer review research and evidence.  However, an evidence based practice should also be considered as one that is driven by data from students themselves.  So we use evidence of students' learning, in other words, to select the most appropriate ways to teach and provide targeted intervention and adjustments where needed.

DR MELLIFONT:  Okay.  So you describe in your statement in this context, as it being, including a practice used within schools that is driven by the use of student data.  For example, university screening the progress of all students with robust assessments and using that data for timely identification of students who are under-achieving and may need targeted intervention and support.  Does that in brief terms encapsulate it?

DR de BRUIN:  It absolutely does.  It means the students don't fall behind and the gaps don't widen.

DR MELLIFONT:  And I will just briefly observe, in your teaching, you teach primary and secondary school teachers as to their professional obligations under the Disability Discrimination Act 1992 (Cth), the Disability Standards For Education 2005 (Cth), and you teach those teachers to use practices in their schools and classrooms.  That evidence suggests that the most effective and equitable way to support students, including students with disabilities.  Is that correct?

DR de BRUIN:  That is correct.  I should add I have a number of postgraduate students who work in early childhood settings as well.

DR MELLIFONT:  Thank you.  And you yourself were a classroom teacher, 10 years as a teacher in a large suburban public school in a disadvantaged area in Melbourne's south east, and other independent schools in Melbourne, you are an English teacher from Years 7 till 12, and you also worked as a Learning Support Teacher, developing and implementing support programs for students with disability and running targeted literacy intervention programs on the basis of need?

DR de BRUIN:  That's correct.

DR MELLIFONT:  How would you describe the focus of your research?

DR de BRUIN:  My research focuses on inclusive education all the way along the pipeline from policy to practice.  I'm interested in the way systems work, I'm interested in what should be done to make systems more equitable and inclusive, as well as at the level of the school and as well as the level of the classroom.  I'm particularly interested in what practices are shown by evidence to promote quality and equity at all of those levels of the system, and I pay particular attention to students with disability.

DR MELLIFONT:  Thank you.  Now your statement speaks at some length about the benefits of genuine inclusion and, of course, the Commissioners have read your entire statement and have been accepted into evidence.  I just want to focus on a part of it now and then to move on.

You described in your statement that part of genuine inclusion is that all students should be provided with learning activities in which they are genuinely engaged in learning together, such as in co operative and peer assisted learning, whereby both academic and social skills are learnt, modelled and rehearsed in routine classroom activities and environments.  That's part of what you speak about as to genuine inclusive education in your statement; correct?

DR de BRUIN:  That's correct.  It's vital that students are authentically engaged together.  It's not enough to drop them off at the same school gate in the morning and consider the job of inclusion done.  It's really important that students are engaged in learning together in structured and evidence based ways.

DR MELLIFONT:  Thank you.  Excuse me for one moment.

I want to take you to specifically to paragraph 34 of your statement because there you speak about the concept of educational neglect in the school setting, and as you are aware from the opening earlier this week, that is a key aspect of this particular hearing.

So your statement at paragraph 34 reflects that educational neglect can take place when schools fail to facilitate equitable access by students with disability to an education that is high in quality, fail to provide appropriate support for the participation and progress of these students, in an inclusive setting or failing to eliminate discriminatory practices.

So I just want to ask you about that.  So, you operate under the understanding that educational neglect can include the failure to provide appropriate adjustments; is that right?

DR de BRUIN:  It is.  And that might mean that the adjustments that are planned are only then implemented intermittently or haphazardly, or it might be that the planed adjustments are ineffective, or it might be that they result in a restriction of access to education that ultimately means that students' learning is restricted and the intended benefits of education don't flow to those children.

DR MELLIFONT:  Okay.  Now, Dr de Bruin, I've just been noted to slow down myself a little bit in some parts, so I will ask you to not follow my bad example when I speed up.

Now, some examples of what might be or contribute to neglect, to your understanding, would include not planning for accommodations and not implementing accommodations.  Is that correct?

DR de BRUIN:  That's correct.  It might also mean that if the accommodations that have been planned don't result in the intended benefit, it may mean ignoring that and continuing on instead of adjusting the plan.

DR MELLIFONT:  Thank you.  Might it also include where a behaviour support plan for managing behaviour is provided but not an individual student plan?

DR de BRUIN:  Absolutely.  If we treat those as discrete and separate from each other, we're never going to capture the full range of support that students need.

So, for example, we know that students who find work difficult or don't receive adjustments for them to be able to access the work or to complete the work, then that often manifests behaviourally.  So it's vital that planning of adjustments and accommodations takes into account the whole child.

DR MELLIFONT:  Okay.  And can you help me with some clarity around that term "supports".  In what way are you using that word?

DR de BRUIN:  I use "support" as a sort of catch all because, well, it's in the Convention on the Rights of Persons with Disabilities in Article 24.2(d) and 2(e) as in what reasonable accommodations should do.  However, teachers do all kinds of supportive things, practices and actions taken both by teachers and by schools.  So while that may be in the form of a reasonable adjustment, it may also be simply in the routine teaching and running of classrooms and schools.  So it might be something done proactively to prevent the need for further intervention.

DR MELLIFONT:  And as I understand your view, adjustments should be proactive if done well, prevent barriers, prevent under-achievement, prevent escalations but they can be reactive, that is, how to respond to under-achievement, escalations to prevent them widening or becoming critical or school failure.  Is that a fair summary?

DR de BRUIN:  That's a fair summary, yes.

DR MELLIFONT:  Okay.  And can I also check my understanding about reasonable accommodations.  Do you regard it as being absolutely critical to genuine inclusion, that it's not just that the accommodations are planned and implemented and adjusted, but there is a clear system of checks and balances to ensure this is the case?

DR de BRUIN:  Absolutely.  It's a really essential component but often overlooked.  It's not enough to plan a reasonable adjustment in the hopes that it will have a benefit for a student; there must be regular evaluations to ascertain whether in fact those benefits are flowing so that plans can be altered and adjusted accordingly to ensure that children are learning.

DR MELLIFONT:  Okay.  And do you see accountability as having any role in that respect?

DR de BRUIN:  Accountability is absolutely vital.  So when plans are devised, there should be a plan for the date of the review of the plan, if you like.  So if the goal for a student perhaps is to improve in their reading or for there to be less behavioural escalations, then you need to review the plan to check that in fact there have been a reduction in behavioural escalations, or in fact that the child is making progress in reading, and if they're not, then there needs to be a refinement of that plan.  So the accountability means who is in charge of calling the next meeting, who will be collecting the information to make sure that progress is being made and who will attend the next meeting.  An action plan has to be accountable.

DR MELLIFONT:  Thank you, doctor.  Just to orient you, I'm at row 19.  Your research has thrown up types of failures that occur.  What do these failures indicate to you?

DR de BRUIN:  Educational failure indicates to me that children aren't making adequate progress at school, and they become disconnected and leave the system.  It  
means that they haven't been provided with an education that's sufficiently high in quality and taking into account their individual needs to support them to achieve their potential.  I would suggest that this kind of failure can occur at both a systemic level and at a school level, meaning that we haven't facilitated the education of a child in conjunction with reasonable accommodations and consistent with the goal of full inclusion.

DR MELLIFONT:  Okay.  And we've heard and will hear some examples of families and students' impressions and experiences.  Without asking you to comment specifically about any of those, are those types of stories things that you have heard time and again in your research?

DR de BRUIN:  I have heard them indeed time and again in my research.  For the students and families that we have heard from this week, are, to me, are typical of a number of cases that have come to my attention through my research and also I would say in my teaching.  Where schools have been perhaps slow to take action, or they have in some way restricted students' access to learning or they've failed to put in place reasonable adjustments that would have supported students socially or academically, and that the consequence of that slowness or that restricted access has led to exclusion or under-achievement or even school failure.  And I just want to emphasise that I know that it must have been terribly hard for the parents who have spoken this week and for their children, but it's important the Commission hears them and knows that these are a human face. These stories put a human face on to the issues that I talk about in my research.  But behind these human faces sit a very large ghostly cast of people who aren't here with us, and who are experiencing these educational failures --- which is, it's essential that this is addressed so that we end up ensuring that all children have a chance to become adults who can live in our society alongside us, work alongside us, and it's neglect if we don't take action to make sure that happens because it leads to an impoverished future for those children.

CHAIR:  Dr de Bruin, can I better understand the framework within which you are operating.  You've described, I think, a failure to provide reasonable accommodation as a form of neglect.

DR de BRUIN:  That's correct.

CHAIR:  You've referred to the Convention and to the Disability Discrimination Act and, of course, we have to take into account the standard under the Disability Discrimination Act.

DR de BRUIN:  Yes.

CHAIR:  The elements of reasonable accommodation that you refer to, are you describing what in your view are the requirements of the legislation and/or the Convention, or are you describing something that you regard as an appropriate system that may or may not be limited to what is required by the legislation or the Convention?

DR de BRUIN:  I'm not sure I've understood the question, Commissioner.  I think if children are --- under the Act and under the Disability Standards, children are entitled to reasonable adjustments if they, you know, meet the definition of disability in the Disability Discrimination Act.  And if schools deny them those adjustments, it leads to neglect.  If I could give an example?

CHAIR.  No, I understand that.  I'm just trying to understand whether what you're describing as a failure to provide reasonable adjustments is intended by you to indicate that that must necessarily be a failure to comply with the requirements of the relevant legislation or whether the standards that you are incorporating in the concept of reasonable adjustments go further than what is required by the legal standards?

DR de BRUIN:  I think the standards require the provision of adjustments, and there are words in there such as "benefit".  There should be benefit.  So I am drawing on those words when I talk about the need for an adjustment to make a tangible difference to a young person.

CHAIR:  So you're offering what is in effect an interpretation of the legislation or the standards?

DR de BRUIN:  That is how I understand them.  I'm not a lawyer but that's how I understand the standards.  That's how I understand they're intended to operate.

CHAIR:  Thank you.  I just wanted to understand what our frame of reference was or is.  Thank you.

DR MELLIFONT:  Thank you, Chair.  And, of course, as Dr de Bruin has indicated she is not a lawyer and she is aware we haven't called her as a lawyer in these proceedings, but she speaks to obviously what she sees happening through her research and on the ground, so thank you, Chair.

Can I ask you what you mean by "barriers to education", and I'm at row 21?

DR de BRUIN:  Barriers to education is historically understood through a medical model.  It was also historically how disability was understood, it was understood to exist within a person.  And I give in my statement the example of a person with a vision impairment.

Historically, an education was provided for students with vision impairment in a separate setting on the understanding that they were unable to access an education in a mainstream setting because of the very nature of their vision impairment.  It was seen to be what restricted their participation in education.  However, the social model of disability takes a very different view.  This understands disability to arise from the environment in which people learn and the resources and activities in which they interact or use in the school environment.  So they're external to the individual.  They arise from some kind of shortcoming in the environment, the schooling itself.  So a  
student with a vision impairment in a classroom experiences a barrier when they're handed printed materials that they can't read.

DR MELLIFONT:  Thank you.  So let's turn to the concept of adjustment.  You describe that variations to remove barriers are to enable students with disabilities to access, participate and make good progress in learning.  That's how you would regard that term, is that correct?

DR de BRUIN:  That's correct.

DR MELLIFONT:  And your understanding is that the purpose of making an adjustment is to prevent, guard against disadvantage from disability?

DR de BRUIN:  That's right.

DR MELLIFONT:  Okay.  So in your experience or your understanding adjustments are often focused on removal of the barriers, ensuring that students have access to learning and can participate in learning and are supported to make progress through learning?  Is that right?

DR de BRUIN:  Absolutely correct.

DR MELLIFONT:  All right.  Now help me out with what differentiation makes in this context, please.  Don't race through this because the interpreters need to hear what you have to say.

DR de BRUIN:  I will do my best.

Differentiation is --- in education, is understood as a model of flexibility in teaching practice.  It's typically understood to be something that teachers do in heterogeneous mixed ability classes that ensures all students can access a quality curriculum, can make sense of the learning content, and that they can produce work that demonstrates what it is that they've learnt.  International research suggests that differentiation should actually sit as a foundation beneath reasonable adjustments, and that reasonable adjustments and differentiation should exist in alignment with each other, that they should be both complementary and supplementary to each other, and it might help people to understand differentiation and the flexibility within it by understanding that teachers might do this through presenting content to students in a variety of different ways, to provide a number of --- a range of flexible processes through which students might take in information, or interact with information and make sense of it.  And it's through providing flexibility in what we call “the products”, or what students come up with, to demonstrate what it is that they've learnt and that they can do or that they know.

DR MELLIFONT:  Okay.  Now, your statement refers to intervention and it refers to modification in education.  Let's start with intervention.  What do you mean by that?

DR de BRUIN:  Intervention, are
 a subset of adjustments, their purpose is to provide targeted instruction in a more intensive manner for students to make progress in specific areas in which they've been assessed to be achieving below the level expected.  If we take, for example, a student with a reading difficulty such as dyslexia, they may have decoding skills or the knowledge to use the letter sound correspondence to sound out and accurately read words.  They may be doing this well below the year level benchmarks.  So an intervention for a student such as this would be to provide that student with regular daily lessons, using explicit instruction in phonic decoding to teach them that association between letters and sounds, and to teach them to use this knowledge for accurately reading words.

I would emphasise that this is a useful example of the difference between simply an adjustment to remove a barrier and an intervention.  So you could potentially provide a student with reading difficulties information in an alternative format so they might be able, for example, to use text to speech applications on an iPad to have something read to them.  And while that is a useful thing to do on any given day that they are required to read something or access printed information, it's not enough long term.  Students --- reading is one of the most vital skills that students obtain in their schooling, so we must go beyond the immediate access and also ensure that we proactively prevent reading under-achievement or reading failure for such a student.

DR MELLIFONT:  Thank you.  Let's turn to the word "modification".  What do you mean by that?

DR de BRUIN:  Modification is a variation that is made to the alignment of grade level curriculum content, or curricular achievement standards for a student with a disability.

DR MELLIFONT:  Can you give us an example of this?  Help us understand what that looks like.

DR de BRUIN:  Certainly.  This might mean expecting work from a student at a lower achievement, curriculum achievement standard, than is expected from their peers in the classroom.  Or it might be a lowering of the performance expectation that may have the effect of reducing that student's access to the grade level curriculum.

I gave in my statement the example of a Year 6 Maths class in which there was a student with a disability that's an intellectual disability, who might be working at three curriculum levels below the rest of the class.  The teacher would be teaching the same concepts to the whole class, that might be fractions or decimals, for example, but they would be applying different standards.  So this particular student would be assessed against the standard expected of a Year 3 student but the rest of the class might be taught and assessed towards the standards for the Year 6 curriculum.  But all students would still be expected to learn and participate in classroom activities on the content such as fractions and decimals.  But the  
curriculum modification would allow that, ideally, to occur at an appropriate level of challenge for the student with an intellectual disability, making sure that they are supported to make progress and continue to learn, but that the expectations are right.

DR MELLIFONT:  Okay, all right.  Thank you.  Now, I don't need for this document to be brought up but at paragraph 62 of your statement you refer to a Queensland education policy on modified programs termed "individual curriculum plans".  Is that something you would regard as being an example of a modification?

DR de BRUIN:  That's correct.  That is, yes.

DR MELLIFONT:  Okay.  Now, I want to turn to the concept of a Universal Design for Learning Framework.  Can you help us to understand what that is, in particular how it's different from providing adjustments?

DR de BRUIN:  Universal design is a concept that actually arose from the field of architecture.  And it was a focus on design principles to make sure that built environments were fully accessible, that didn't contain in built barriers, and that didn't require the retrofitting of any features for individual accessibility, such as building a ramp after the completion of a building, or widening the doorways to enable wheelchair access.

DR MELLIFONT:  Can I just ask you to pause there for a moment.  You say it was a concept which originated in the field of architecture.  That was in the 1980s, is that right?

DR de BRUIN:  Yes, I believe it was.


DR de BRUIN:  We've come to see the adjustments that happened in our built environment as routine, so cuts in the kerb to allow a wheelchair user to cross the road safely which we know people with prams, walkers, shopping trollies, so they are useful for everybody and vital for some.

DR MELLIFONT:  Now, I interrupted you.  So I will let you come back to universal design in the context of education, please.

DR de BRUIN:  Again, it's a set of design principles.  They've been formalised in something known as the universal design for learning framework or known colloquially as UDL, and these principles can be used to design instruction and assessment.

I emphasise that universal design is not an intervention, but it is a set of guidelines and principles for accessible design.

DR MELLIFONT:  Okay.  Now, I'm going to move to a very core aspect of your  
evidence in your statement and that is a concept called multi tiered system of supports, MTSS.  Now, to start, your work is grounded in MTSS; is that right?

DR de BRUIN:  That's correct.  My PhD looked at a subset of this, and since then I've looked more along the entire spectrum.

DR MELLIFONT:  Okay.  Now, I understand that MTSS started in health.  Can you take us through that and how you applied in the education context, please?  Tell us what it is?

DR de BRUIN:  MTSS, yes, it originally was developed in the field of public health, and it's considered to be a framework that is both proactive and preventative.  So if you think about the kind of things that we now know as what is called Tier 1 health, which would be eating well, exercising, washing our hands to prevent illness, and then there is a sliding scale of increasing intensity where we respond, in the field of health, to acute or chronic health conditions.  When applied to education, it's characterised by the same sliding scale of intensity and individualisation of responses with a strong foundation of proactive and preventative high quality teaching.  It's characterised by an unwavering commitment to improving student outcomes.  I believe I sent through a graphic, is it possible that we can look at that graphic?

DR MELLIFONT:  Yes.  I will ask for the Operator to bring up that graphic that was sent through before, which is a schematic --- that was very fast, well done, thank you.

Can you take us through that please, Dr de Bruin?

DR de BRUIN:  Certainly.  So this unwavering commitment to improving student outcomes is achieved through a coordinated multi level prevention system that comprises Tier 1 or universal practices, core practices that are provided to all students, as well as the Tier 2 and Tier 3 practices that are provided along that sliding scale of intensity and increasing individualisation, but they function as an entire system of support.

It's based on data based decision making which requires all students to be universally screened and the progress of all students to be monitored to inform decision making.  It also relies on the selection, adoption and use of evidence based instructional and intervention practices.  It functions as a system by requiring commitment from school administrators and school based leadership teams, as well as targeted professional development to ensure teachers understand evidence based practices and how to monitor the effect of providing those and evaluating student progress relative to goals.

It's widely understood in the literature that for approximately 80 per cent of students, those core practices, the universal practices offered at Tier 1 will support their learning and progress at school.

DR MELLIFONT:  Can I just stop you there for a moment, Dr de Bruin.  Would it  
help at this stage to bring up on screen the triangular schematic which is at paragraph 20 of your statement?

DR de BRUIN:  Certainly would.

DR MELLIFONT:  Thank you.  We will do that.  And if we could go a little closer on the triangle.  Thank you.

All right, Dr de Bruin, let's just go back a second and start us on Tier 1 and proceed.  Thank you.

DR de BRUIN:  Sure.  Tier 1 as represented in this graphic is the green section.  These are the core instructional practices that are provided for all students.  They should be high quality and supported by evidence.  Research indicates that the use of these should be sufficient to meet the learning and progress needs of approximately 80 per cent of students to make good progress.  They should support progress for as many students as possible to avoid referral for any additional intervention.  Where universal screening shows students might be underachieving, robust assessments would be conducted to make sure the nature of that underachievement is understood, and then evidence based practices would be implemented at Tier 2 strategically to provide intervention for a small group of students, usually for a finite period of time.  And this should be provided for students who are performing somewhat below benchmarks.  It should be provided in a way that builds on what is done at Tier 1 so students aren't provided with Tier 2 in place of but it should both complement and supplement.  The research suggests that up to 15 per cent of students might require Tier 2 interventions.

Tier 3, so that's the rust coloured tip at the top, highly intensive and typically individualised interventions provided to the students who are performing far below benchmarks, and for whom Tier 2 supports may not have been sufficient to support progress.  The highly intensive nature of these means that they typically involve more time and sessions, hence that sliding scale of intensity, making them more resource intensive.  Research suggests that these are required only by a very small number of students.

I emphasise that the percentages that I've provided to the Commission vary in schools, particularly if there are additional factors contributing to disadvantage in the area.

I also note that if Tier 1 teaching is less than optimal, then the number of students requiring Tier 2 and/or Tier 3 increases.

This entire framework rests on high quality proactive preventative measures being taken at Tier 1 to ensure that as many students as possible receive high quality instruction.

DR MELLIFONT:  Thank you.  Now, I took you off the other schematic.  Was there  
anything in addition you wanted to say about that schematic?

DR de BRUIN:  I wanted to make sure that it was understood that triangle I showed you is often provided, and Dr Armstrong spoke the other day about PBS.  PBS is represented through a triangle.  It is one of version of an MTSS, a multi tiered model.  In the United States, PBS, positive behaviour support, emerged at the same time concurrently with another model called Response to Intervention, and in those days it was understood that this model could be applied for behaviour and social competencies or for academic support and competencies.  However, it's now widely understood that to do --- to apply those as separate and discrete is not as effective as using the model as a braided and holistic model.  For example, in the evidence we heard for a student who was provided with a behaviour intervention plan, but not an academic one.

DR MELLIFONT:  Thank you.  Excuse me.  Obviously we are aware at a national level there's the DDA which prohibits discrimination and mandates reasonable adjustments subject to some exceptions, and we won't get into the specifics of the law, of course, now, but to your knowledge, what national level guidance is offered regarding how to implement this legislative requirement?

DR de BRUIN:  The Disability Standards for Education is what's provided at the national level.

DR MELLIFONT:  Yes.  But beyond that?  Anything?

DR de BRUIN:  There is guidance that's provided, but it's optional.  You know, schools can use this if they wish.  So for example, I will speak later about the NCCD, some professional learning materials are provided there to assist people to understand the Disability Standards, and the DDA in terms of professional learning.  But the Disability Standards for Education are the foundation.

DR MELLIFONT:  All right.  So at paragraph 61 of your statement you state that within national policy and legislation there's no distinction made between curricular modifications and accommodations for the provision of interventions, all of which are encompassed within the term of "adjustment", and in fact you say they are used interchangeably in some policy guidelines, but in some States there are distinctions.

And then in paragraph 62 you refer to the Queensland education policy on modified programs, termed the individual curriculum plans, and then you go on and speak about Victoria.  Now, you're based in Victoria; is that right?

DR de BRUIN:  That's correct.

DR MELLIFONT:  Is there a similar policy regarding decisions there, so far as you are aware, to modify student programs?

DR de BRUIN:  To my knowledge there is no policy governing modification of  
students' programs in Victoria.  And I note that a recent report on Victorian education for students with disabilities noted that under the policy of devolving power for decision making to schools and principals, this has enabled decisions to modify and to lower curricular access or expectations for students can be made at the school level without a policy to guide such a decision.  That report indicated that decisions made by schools were often inappropriate and limited students' ability to learn and make progress at school with quite long term outcomes.

DR MELLIFONT:  Thank you.  What does your research indicate, if anything, about things being different from state to state in respect of the provision of adjustments?

DR de BRUIN:  The misalignment between the states creates inequities and gaps.  And it really highlights that this has been an issue for a very long time in Australia, and that it's hampered the impact of policy reform efforts such as funding reforms, for example.  Because these are enacted in different ways between different states, and these are sometimes inconsistent with the Federal policy itself.

DR MELLIFONT:  Okay.  Now I wanted to come now and turn to your views, having worked in the area previously and in the course of your research, about how things should work in practice in your view.  Let's start with the adjustment process.  How does that work in practice?

DR de BRUIN:  In practice, in ideal practice there should be two stages, a planning and consultation process and an implementation process.  I'm noting here that there should be an evaluation phase, but that it's not a requirement.  So when you ask me how it works in practice, that's often missing in practice.


DR de BRUIN:  No evaluation.

DR MELLIFONT:  Just if I ask you to pause with me there for a moment.  By "evaluation phase", that would be a phase under which the adjustments are reviewed for the fidelity of implementation as well as the impact for students, is that what you mean?

DR de BRUIN:  That's correct, so did all teachers take that on-board?  So if students, for example --- an adjustment was provided to allow a student to take a break, did all the teachers provide the student with access to that break.

DR MELLIFONT:  Okay.  Let's take planning and consultation to start with.  What issues does your research indicate arise as regards to planning and consultation?

DR de BRUIN:  Under the Disability Standards for Education, schools are required to consult with students and/or their representatives or families in planning which reasonable adjustments will be provided.  However, several reports --- in my research I've reviewed a number of the reports on education in Australia, and these  
have highlighted that consultation is frequently superficial or inadequate, and that it may be omitted altogether.

I suggest that one possible reason for this might be that while the requirement to consult is clear under the Disability Standards for Education as applying to all students who are eligible under the DDA for adjustments, at the State level there are policies that apply specifically to students who receive targeted funding.  And we know that that is a very small subset of students with a disability.  It means that there is potentially an inconsistency in how schools understand what their obligations are and whether they're meeting them.

DR MELLIFONT:  Can you give us an illustration of such an inconsistency, please?

DR de BRUIN:  Certainly.  So in Victoria where I live, the Equal Opportunity Act requires for reasonable adjustments to be provided for students with disability.  However, there is no requirement under that Act that these be developed through consultation.  So that's one inconsistency.  Therefore, students of a school in Victoria might receive adjustments but they may not --- they or their families may not have been consulted.  So technically you could be compliant at the State level but not at the National level.  I suggest that these kinds of inconsistencies might be one reason why reviews and reports into education in Australia suggest that this step gets missed.


CHAIR:  Dr de Bruin, there's no doubt is there, that the Disability Standards apply ---

DR de BRUIN:  There's no doubt, you're correct.  And in fact, I note --- so for example in Victoria the webpage on which their policy documents are housed, explicitly states that.

CHAIR:  And that's because of section 109 of the Constitution which says in the event of inconsistency between State and Commonwealth laws, Commonwealth laws prevail?

DR de BRUIN:  Absolutely.  However, I would suggest that not all Principals understand that.

CHAIR:  I'm sure many Principals don't and many people don't, but I'm trying to ascertain what the ground rules are.  From your evidence, tell me if I'm wrong in what I deduce, the first question is whether there are inconsistent standards as a matter of, if you like, a matter of law or that oblige institutions to act in a particular way, and as far as Australia is concerned there is a uniform law, that is the Disability Discrimination Act, and the Standards that have been passed pursuant to that Act.  So that's the National law.  Is that right?

DR de BRUIN:  That's correct, yes.

CHAIR:  You've raised a couple of concerns, as I understand it.  One is that the National standards aren't applied, so that although the national standards are perfectly clear that consultation with a student and/or the student's associates --- that's the term used in the Standards --- must take place, your point is that in practice that doesn't occur sometimes or occurs inadequately?

DR de BRUIN:  That's right.

CHAIR:  So that is a problem of proper application and enforcement of the Standards that this Commission might need to address?  Is that right?

DR de BRUIN:  Yes, it is correct.  I would also add, unless I'm interrupting ---

CHAIR:  No, no, carry on.  Carry on.

DR de BRUIN:  The State Education Departments provide policy guidance to assist schools in applying the legislation, and those policies often apply to a subset of students with disabilities, specifically those who receive targeted funding.  And again, in Victoria, the targeted funding program is known as the Program For Students with Disabilities.  So this policy indeed stipulates that collaborative planning should be undertaken in a process known as the student support group.

However, the policy says it's essential for students who receive targeted funding but recommend it only for students who don't.  So I suggest that under this system where we've devolved accountability and decision making to schools, we've made their lives quite hard because they need to understand the Disability Standards, as well as the funding rules, as well as the State legislation, and I would forgive them for being confused to know whether they were required to undertake collaborative planning, given that it's described as optional in the policy advice.

CHAIR:  Okay.  So the enforcement of the disability standards would require us to dispel that confusion.  I follow that.  The next point you've made, if I understand
it correctly, is that there may be some adjustments that should be made or some processes in the course of developing the adjustments in a particular case that are
not necessarily specifically or adequately covered in the standards.  Is that right?

DR de BRUIN:  The standards really describe that adjustments should be provided and that they should have benefit but there isn't a lot of other guidance about
that beyond consulting.

CHAIR:  That's my next question.  What do you suggest should be done with the standards?

DR de BRUIN:  I think that there needs to be much clearer guidance regarding the selection of reasonable adjustments, the presumed benefit on which they are selected  
and the expectations for the benefit.  So if we take the reading example because that's an area of my research that I'm quite familiar with, if a student is under achieving in reading, the adjustments and potential interventions put in place should be the ones that have the highest probability of having the desired benefit and that needs to be reviewed.  I would suggest that the Disability Standards require clarity in the compliance measures but I emphasise that I'm not a lawyer.

CHAIR:  No, you don't have to be a lawyer to make these suggestions.  My next and last question in this tranche is have you got - have you made or do you intend to make any specific suggestions for the amendment of the national standards?  I know they get reviewed every five years.  But is there a process underway whereby the suggestions of the kind that you're making can be accommodated within the standards?

DR de BRUIN:  I have certainly put in my submission to the Disability Standards review that is currently underway.  I believe that's the one document I didn't print out in preparation for today's session.  I've made a number of recommendations.  I would rather not squirrel about and look for that document.  I'm happy to provide you with that following today's proceedings.

CHAIR:  Okay.  Dr Mellifont will take that further if she wishes.  Thank you.

DR MELLIFONT:  Thank you.  I certainly will.  I'm about to move on to funding, Dr de Bruin.  But before I do so, can I ask that the circular schematic be tendered and marked as exhibit 7.113.4 please.

CHAIR:  Yes.  That can be done.  Thank you.

DR MELLIFONT:  Now, Dr de Bruin, as we mentioned at the start, you've given a very long and comprehensive statement for which we are very grateful and it does deal in some significant aspects with respect to funding.  What I want to start with in that topic is if you've got a funding model which is dependent upon a student falling within a particular category of disability, what does your research reveal as to the problems that that model can create?

DR de BRUIN:  There are a range of problems that that model can result in.  One of them is a highly medicalised approach that focuses on students in terms of some kind of remediation of a deficit.  Such an approach can really kind of mask the individual characteristics and overlook the strengths of students and it can overlook    

DR MELLIFONT:  Sorry, Dr De Bruin.  I just want to stop you there and ask you to explain a little bit more what you mean by “remediation of a deficit” in that context?

DR de BRUIN:  So, for example, a student might be withdrawn from a classroom to attend a session with an allied health professional on a particular skill.  And that may be   or the focus is on addressing something within the student themselves rather than addressing what's going on in the classroom that might be generating a barrier  
for that student.  So it's viewing the student as the site at which something needs to be fixed.

DR MELLIFONT:  Thank you.  I'm sorry for interrupting you.  I will take you back to what the question was.  We were talking about what problems can that funding model give rise to?  Please continue.

DR de BRUIN:  So it can therefore overlook the kinds of barriers that might be giving rise to a student who isn't making progress at school and that in fact disables them.  But it also has a tendency to create funding gaps.  It's not uncommon for parents, for example, to be told, "We don't have the resources", you know, when they approach a school for enrolment.  We heard Sam's story this week and we hear   my research has   in my research I've heard these stories where students and their families are told that their enrolment or that their attendance at school, for example, is dependent upon receiving targeted funding.

So they may say, "We can't accept your enrolment unless you receive targeted funding", or they might say, "You can only attend school for the number of hours covered by the funding covers an aide for", for example.  Some parents are even told to fund those themselves.  So those funding gaps can serve to restrict students' access to a school or hinder that access to a school.

Another issue with categorical funding models is that they are what we call in the literature a “wait to fail” model.  And by that I mean that student under-achievement has to reach a clinical threshold before they become eligible for funding which can then determine their access to adjustments.  And we know, if I return to the example of reading, which, is an area of my own expertise, that if we wait for students to fail, they may never catch up.

The research indicates that if students are underachieving in reading at Year 3, they typically never catch up.  Another issue with categorical models, is that it can become dependent on the knowledge and attitude of the Principal or the culture of the school.  It can end up being a bit of a lottery for a student whether you end up in a school where the Principal is savvy and might find ways to navigate that categorical system or not.

Students can end up being denied adjustments on the basis of these lack of funds or, alternatively, it can push them into special education.  So in the first instance where students are denied adjustments, this might be students who have not reached an eligibility threshold, who are in an unfunded category and they may simply be told, "We can't afford to support your needs."  Or for students who have more substantial needs and who seek enrolment in their local mainstream school, that school may say, "Look, we don't really get the resources to give you a good education here, I strongly recommend you go to the special school up the road where they have allied health professionals and smaller classes."

This all stems back to that idea that I began with at the beginning, it's a medical  
approach.  The views that students with a shared medical diagnosis might benefit from being in a class together or to receive the same sorts of teaching practices.  But research shows us that that assumption is in fact not correct.  It's not supported by evidence.  There are no special strategies for special particular disabilities.

DR MELLIFONT:  Can I come then back to a needs based approach by comparison.  Are you aware of models that have adopted a needs based approach without reference to the specific type of disability, that is, without that categorisation?

DR de BRUIN:  I have and I will come back to the topic of the multi tiered system of support or MTSS.  It might be useful if I give a very brief overview of how that model developed specifically to move away from categorical models.

So in the United States, if I focus on the reading example, students used only to be eligible for special educational services if they had what was called an aptitude achievement discrepancy.  That is a significant difference between an IQ score versus their school achievement.  This is what I mean by the "wait to fail" model.  Students had to significantly underachieve, which was shown to be unrelated to an IQ.

In the United States it was observed that using this model, there was a drift towards providing education as a segregated model and a number of systems, particularly State based systems made decisions to attempt a more coordinated process that relied instead on documentation and data of student learning so that students who needed that support, as shown through their failure to make progress at school, were provided access to it without requiring a kind of quasi medical test such as the IQ score.  This is what gave rise to the response to intervention model, where a similar model in PBS was being developed.

So we have a needs based model now, where schools have this braided comprehensive model so that students are routinely monitored for their progress, their academic progress as well as their social and behavioural competencies, and that as soon as it's clear that students need more support than they're getting in Tier 1, that's provided.

I emphasise, this model has to take place as a systemic model.  The way that has worked in the United States where they moved away from a categorical model and they prevented the drift towards segregation, to change the way they used funding streams that were provided by the Federal Government under their disability legislation, the Individuals with Disabilities Education Act, and that meant that those federal funds could be used for screening intervention and prevention, which is at the heart of the needs based model.

This model has been implemented and is now achieving some maturity in some of the states in the United States.  I visited two states last year where I saw them in action.

DR MELLIFONT:  Dr de Bruin, I'm going to stop you there.  We are going to come back after the lunchtime adjournment, if that's convenient to the Chair, at 2 o'clock Brisbane time.  And you can tell us about your experience in Kansas.

Is that convenient, Chair?

CHAIR:  Yes.  Thank you very much, Dr Mellifont, and thank you, Dr de Bruin.

We will adjourn until 2 o'clock Brisbane time and we shall resume then.  Thank you.

ADJOURNED    [1.00 PM]

RESUMED    [2.01 PM]

CHAIR:  Yes.  Thank you, Dr Mellifont.

Dr de BRUIN, Dr Mellifont will keep asking you some questions.

DR MELLIFONT:  Thanks, Dr de Bruin.  You were about to take us to the US?

DR de BRUIN:  I am.  So I was talking about how system change had been enacted in the United States and I was lucky enough to go and look at two states that had managed to accomplish that, supported by policy and funding through the Department of Education.  And some of the practices that we saw there showed us how this fully inclusive braided model operates both at a systemic model and a school level.

At a system level, what it means is that all the resources within the education system are available within the regular school.  I am going to stop using the term "mainstream" here because mainstream presumes another place, a segregated setting.  It's an unreconstructed version of what we had.  But what we saw there was a genuinely inclusive model in the public school system.  For example, allied health professionals were readily available on site.  No child needed to leave school to access, and no parents needed to pick their child up, these were free to access.  In the way that they are provided in segregated special schools in Australia, they were provided in the local inclusive school there.

There were very low numbers of students who were pushed out to segregated settings.  For example, in Kansas, 1.95 per cent of students attend a segregated school compared to as the ABS reports as 14 per cent in Australia.

Those students who were attending a segregated setting actually remained enrolled within their local school, who paid for access to very highly specialised settings such as students who had extreme escalations in mental health difficulties, as well as students who were in the youth justice system.  The local school remained  
responsible for their education, and when students went to these other settings they left with a plan for their return and a timeline for their return.

At a system level it meant there were technical assistance centres provided for principals to understand how to read their data, to understand the priorities for equity and change within their system.  And while they have some devolution of responsibility in the State, it's not like it is in Australia.  The devolution goes to the level of what they call the “District” and into what Victoria we might call the “Region”.  So, for example, the funding provided for the professional learning of teachers in evidence based practices was not left up to the decision of a principal or an individual teacher, but responsibility for that was taken by the local district and provided by the district, and quality assurance checks were then conducted on that.

These were all driven by data.  For example, one school that we visited was part of a group in the district who were being trained in the use of trauma informed practices, as there were high levels, high numbers of students who resided in State care in that district.  It had therefore been deemed a priority by the evidence and data.

At a school level, what this meant was that all children had access to all the good things that a data driven, evidence based system of practice looks like.  One of the things that stayed with me the most was the way they provide targeted instruction and intervention in a completely seamless manner.  We were present at one school during what they call “the intervention walk”, where in Australia a child might be pulled out of a classroom to attend a Tier 2 literacy intervention.  In this school, every child got up during the literacy block and went to a room that was just right for them.  This is what the school did with their routine universal screening and their progress monitoring data.  I believe they told us they conducted this sometimes formally and sometimes informally every six weeks, so that students who were receiving, for example, intervention for decoding were then progress monitored, "Is this enough?  Are you getting there?  Do you now need to go somewhere and work on fluency?"

There was no stigma, there was no withdrawal, no child was missing out on what the rest of the class was doing to get targeted education that was just right for them.

I've mentioned some of the detail here to show you how --- to show you what I see as missing in Australia, is we don't have this at a systemic level.  But I do want to say that there are some promising efforts in this area, such as the positive behaviour support initiative in Victoria.  However, what we learnt from our trip to the United States is we can't implement this at the level of a school.  It must be done, to work, at the level of the system so that all of those resources within a system are available to every child within the system.

So just as some principals might say to a child seeking enrolment in Australia, "We don't have the speech pathology services to offer you here, you would be better off at a special school up the road where they have one every day of the week", at these schools, they were in every school every day of the week.  It was simply a systemic  
redeployment of the existing resources in a system and a removal of those push factors and pull factors that push kids out of one system and into another.

I note that I've seen some schools do this extremely well in Australia at a school level, and with technical assistance and a better model of funding and allocation this would be transformative for young people.

DR MELLIFONT:  Can I take you now, Dr de Bruin, to a recommendation you make in reference to paragraph 83 of your statement.  And this is in respect of the requirement and process for conducting and documenting consultation.  It's in your statement.  Can you just address it briefly for me, please?

DR de BRUIN:  There isn't enough accountability in the system at the moment regarding whether students are consulted, how consultation is documented, how plans themselves are documented, or whether they are evaluated.  And this is a key recommendation that I make, is that this become a requirement with a clear process for following, so that schools understand whether they're meeting their obligations under the Disability Standards.  I would recommend that these be specified in compliance matters, and this would allow nationally consistent obligations, meaning there that State based advice that can be very confusing and appear inconsistent, that issue would be resolved.

DR MELLIFONT:  Okay.  Can I take you now to whether there's a clear and consistent process for schools and teachers to follow individualised planning of adjustments?

DR de BRUIN:  There's not.  Previous reviews of the Disability Standards have actually noted that there is insufficient clarity regarding the planning obligations which means that obligations might be inappropriate or they might be denied.  And as indicated earlier, each State has their own policy and guidance provided regarding this, which means there's a lack of clarity and a lack of consistency across the country.

DR MELLIFONT:  Thank you.  What problems does that create?

DR de BRUIN:  Well, as I mentioned earlier, if I give the example again of Victoria, which is the State with which I'm most familiar, there's a mandated process for developing an individualised education plan for the approximately 15 per cent of students with disabilities who receive targeted funding.  However, these plans are optional for students who do not receive funding.

DR MELLIFONT:  Thank you.  Now, in paragraph 90 you speak to how that might be addressed in the future.  Can you briefly summarise that for us?

DR de BRUIN:  My view is that we need a nationally consistent process that aligns Federal legislation and policy advice, and makes sure that that's the foundation for any advice provided by states and territories.  That would be, in my view, the best  
way to overcome this inconsistency.  For example, making it optional to plan or consult for students who do not receive targeted funding.

DR MELLIFONT:  Thank you.  Now, I want to move on a little bit further and ask you what your research reveals as to the impact of late or non provision of curriculum adjustment?

DR de BRUIN:  In particular my research in this area has focused on reading.  And, in fact, that's where some of the best evidence is.  I mentioned earlier that children who don't learn to read at the expected level by Grade 3 fall further and further behind with what can be really long term and quite catastrophic impacts.  This means that up until Grade 3, children learn to read, and after Grade 3 children learn through reading.  So if it hasn't happened by then, it affects them in all areas of their schooling and can ultimately become school failure without timely intervention.  By timely intervention, I mean before those gaps have widened.  Some research conducted by Australian scholars, Professor Pamela Snow and Linda Graham are two who have worked in this area, have indicated that these --- that the failure to intervene with regard to reading can ultimately result in students appearing to be discipline issues.  So children who can't concentrate or learn in the classroom can be disruptive, and they can then start to experience the weight of a school's disciplinary regime where the core of the problem is in fact reading.

The work of Pam Snow also shows that students with language difficulties, who are those most likely to have difficulty learning to read, are over represented in the youth justice system, and she suggests may contribute to what is known as the school to prison pipeline.

DR MELLIFONT:  Thank you.  Your statement, of course, includes a number of suggestions for reform which the Commissioners have read.  In particular you want legislation which outlines a process and standard for compliance by which schools can determine the benefit of an adjustment.  How do you say this could be achieved?

DR de BRUIN:  I think it's important that the DSE is amended to provide clarity regarding the selection of adjustments.  There needs to be a process by which schools document the basis of their decision, and the presumed benefit of an intervention.  This could be achieved using the principles of evidence based focus which would include using --- selecting practices that high quality research indicates has the highest likelihood of a beneficial outcome in the desired area.  And it would also ensure that schools make decisions based on students' data.  So I bring it again to the idea of reading.  If a student is not making progress in reading, it may be an issue with their comprehension, their vocabulary, it may be some of the other technical aspects of reading, for example, phonics or phonics awareness.  It's important that schools conduct rigorous assessments of students to understand the nature of underachievement so that they can select the right intervention.  I believe that this could all be encapsulated by the principles of evidence based practice.

DR MELLIFONT:  Okay.  And you emphasise or stated briefly the importance  
therefore of school decision making being data driven; is that correct?

DR de BRUIN:  Correct.

DR MELLIFONT:  Okay.  Again, your statement sets out in some detail what might be regarded as barriers or describing that in terms of challenges to implementing inclusive practice.  What's the importance, from your research, of beliefs and attitudes of teachers and school leaders?

DR de BRUIN:  My research has found that there remain misconceptions about the ability of students, as if students' capacity to learn is somehow pre determined, and their ability to achieve is fixed.  The teachers that I have interacted with in my research saw themselves --- and I emphasise the teachers that held that view, not all teachers, but there remain a core who do, and they saw themselves as having little influence on the students' progress.  And with students with disabilities, they felt it was the students' disability that inherently determined their progress.  And they also often referred to the job of planning and implementing adjustments as somebody else's work.  This resulted in low expectations for the students with disabilities in their classroom and created an attitudinal barrier regarding their adoption of effective techniques for differentiation and those core Tier 1 practices.  Or, in fact, engaging in implementing reasonable adjustments.

DR MELLIFONT:  That brings us to the important topic of teacher education, accreditation and professional learning.  In brief terms, what is your understanding of the accreditation standards the person must have in order to become a teacher?

DR de BRUIN:  The Australian Professional Standards for Teachers were developed a number of years ago in some of the national moves, to create more nationally consistent processes.  The training of teachers, known as initial teacher education, is accredited against these professional standards.  There are three domains: professional knowledge, professional practice and professional engagement.  There are standards within each of those domains and there are focus areas within each of those standards.  There are 37 focus areas overall.

To become a teacher, a student must undertake a course that has been accredited against those 37 focus areas.  They are, in some instances, quite generic.

DR MELLIFONT:  Now, in respect of the generic nature of some of them, does that from your perspective as a researcher in this area present a problem?

DR de BRUIN:  I think that it does.  The three standards that are used in relation to disability are --- sorry, the three focus areas - are focus area 1.5, which is called:

Differentiate teaching to meet the specific learning needs of students across the full range of abilities

There is focus area 1.6:

Strategies to support full participation of students with disability ....

And focus area 1.4:

Support student participation.

Now, there's a small amount of additional detail that's provided within the Professional Standards for Teachers, but they remain very generic and I would draw the Commission's attention to the fact that they don't mention the Disability Discrimination Act or the Disability Standards for Education.

I would also draw the Commission's attention to the fact that there are standards for principals which do not mention disability at all.

DR MELLIFONT:  What about at an undergraduate stage when a person is studying to become a teacher; are there any specific requirements that relate to planning adjustments for students with disability?

DR de BRUIN:  I would suggest that that is, to some degree, a gap but because the standards are quite generic, how that's undertaken is --- nobody knows.  It hasn't been mapped.  And I think this goes back to the fact there is no national standard process for the planning.  In response to a previous review, particularly standards, the Federal Government developed a document called “Planning for Personalised Learning and Support”, and it's a set of guidelines, and I think they're quite good.  However, they have been just shared in the spirit of, you know, "Use this if it's helpful, we recommend them", but I would suggest every course needs to teach them explicitly.

I've helped to develop undergraduate courses for inclusive education in initial teacher education, and I know that the scope is very broad.  I could have done almost anything in the name of those standards.  I also now teach teachers who have returned to get a better understanding of this process, and they all tell me they've never seen the planning for Personalised Learning and Support Guidelines until they arrived in my course, and some of these are teachers with some decades of experience who have undertaken annual professional learning.  So I think it's unclear is my answer.

DR MELLIFONT:  Yes.  Okay.  And your concern out of the lack of clarity is that it doesn't make for a landscape of quality and consistency; is that correct?

DR de BRUIN:  That's correct.  I think the Professional Standards really need amending so that they explicitly reference the Disability Standards as the foundational policy and legislative requirement.  Otherwise teachers can remain at the level of that local, you know, the State based policy which may or may not be consistent in line with the DSE.

DR MELLIFONT:  Okay.  Before I move off that, I just want to take you to row 60 in par 
agraph 100 to see if there is anything you want to supplement in respect of the oral evidence you've just given as to your understanding as to whether there's an obligation to receive ongoing learning, as to planning and implementing adjustments for students with disability.

DR de BRUIN:  Teachers' registration and registration renewal is a State based activity.  So in the case of Victoria, that's undertaken by the Victorian Institute of Teaching.  When teachers renew their registration annually, they're required to demonstrate that they've undertaken a minimum quantity of professional learning and they are required to provide some justification for their claims that that professional learning is linked to the Standards.

However, I would draw the Commission's attention to a recent report by the Victorian Auditor General who looked at professional learning for teachers, and who found with regard to those three specific focus areas I mentioned regarding disability, focus areas 1.5, 1.6 and 4.1, the Victorian Auditor General found that it wasn't possible to determine whether the workforce had improved developmentally as a result of a two year policy in Victoria that required teachers to annually engage with those three because the standards are so generic, because the scope is so broad.  And this was after some years of policy initiative in Victoria requiring that teachers undertake professional learning specifically in relation to those three.  However, the general order of business is that teachers can select any of the 37 focus areas for their professional learning, and there is no requirement that any of those are related to students with disability.

DR MELLIFONT:  And through your research, in your experience, have you come to the view that there may be a link between the absence of compulsory ongoing learning as to students with disability and the issues you've identified with respect to adjustments not being provided?

DR de BRUIN:  I think that it's likely, and I also think that the tenuous link between what professional learning is provided and those standards is a problem.  So teachers could go off and do professional learning in things that lack any evidence base at all, and teachers in the public system are using taxpayer funds to undertake this professional learning, and research indicates that it's likely to provide little to no benefit to students with disability.  And I think that's an issue because teacher   initial teacher education is required to adhere to those standards and is audited for that.  But teacher professional learning is not.

DR MELLIFONT:  Thank you.  Now, your statement at 104 to 106 and 207 to 209 speaks to suggested reforms suggested by you.  How would you encapsulate the key?

DR de BRUIN:  We know that teachers are required to do certain periodic mandatory professional learning.  An example I can give is that of what is known in the industry as anaphylaxis training, which makes sure teachers are equipped request the life saving strategies to address the needs of a student having anaphylaxis attack.  I suggest that teacher professional learning should have mandatory minimums in other  
areas and particularly relating to students with disability.  I think that this is easily achievable.  A number of years ago the University of Canberra developed a suite of e modules regarding disability discrimination, following one of the Disability Standards reviews.  The following Disability Standards reviews credited those e modules with a significant increase and upskill in the workforce.

Since that time, those modules have been updated and re housed; they've been removed behind the paywall that restricted their access to public schools, and the professional learning is now, in my view, very high in quality and it's free, publicly available.

My suggestion is that it be made a requirement for graduate teachers before registration, and for teachers seeking the renewal of their registration to document which of those professional learning modules in the Disability Standards and the Disability Discrimination Act that they have undertaken, and when.  Documentary evidence is provided at the completion of those modules through the website, which is provided by Education Services Australia.

DR MELLIFONT:  Thank you.  I just want to touch briefly on paragraph 134 of your statement which speaks about the challenge created by decentralisation and devolution policies, you've already touched briefly today on the concept of decentralisation and devolution.  What do you mean by those concepts?

DR de BRUIN:  The policy of devolution was initially pursued as an idea it was better not to have centralised decision making, but rather have decisions made at the level closest to the student.  And there is nothing inherently wrong with that view because context matters.  However, by devolving all the way to the principal, we have placed, in my view, quite a considerable burden on some principals to have sophisticated understanding of legislation and policy at both the national and State level.  It's also meant that they have considerable autonomy and discretion in how they allocate funds, and the adjustments and interventions that they choose to implement, or even whether to implement at all.  The discretionary power provided to schools and principals, in my view, leads to the unevenness in practice that we have heard at the Commission this week in some of the testimony provided.

DR MELLIFONT:  Thank you.  Can I turn to complaints mechanisms.  Does your research, I'm at row 66, Dr de Bruin, does your research reveal examples of cases like a letter of complaint being received and acknowledged, input being sought from the school, the substance of the school's response not being communicated to the parents, a decision made without meeting the parents with the school.  Have you seen those types of things emerge in the course of your research and work?

DR de BRUIN:  I hear these stories frequently.  In fact, I often receive --- parents kind of “cold call” me.  One day at my work at Monash I was summoned into the lobby, and a father had appeared there with his son, trying to find me.  This was after I had published a paper about the disproportionate impact of segregation of students on the autism spectrum in Australia.  These parents come to me because they've read  
something that I've written and they have no idea how to fight for the rights for their child, and they don't understand what's happened to them when a complaint has not been upheld.  I would receive these kinds of requests for assistance from parents often and, of course, that is not my area of expertise.  And I refer them to external bodies, Australian Human Rights Commission and, you know, depending on where they're from, often there are State based advocacy organisations.  There is a significant difficulty for parents to understand this mechanism.

DR MELLIFONT:  And your statement speaks about issues that your research has identified that arise when parents take issue with the steps being undertaken by a school in respect of that child.  And you speak about the complexity and the lack of accountability, inaccessible process.  But what I want you to tell us about in terms of your experience through your research and interactions is the impact of families, the experience of having to fight with --- fight for their child in that setting.

DR de BRUIN:  At a systemic level the impact is the increase in segregation.  Students in Australia are no different to students in America.  They're just students.  The policy climate is what's different.  And so we can --- and Finland, for that matter.  If we look at the fight that parents have to put up to access an inclusive education, and how much of the time that results in a denial of an inclusive education and the ultimate segregation of that child, we can see that the complaints mechanism puts up huge barriers for parents to access that education for their child.

At an individual level, my research has found that the process for parents is time consuming, exhausting, devastating, and for some of them they simply don't have the language skills if they perhaps speak English as an additional language.  They might not have the time in their day, some of these are single parents.  And they simply may not have the energy to pursue it.  One parent who came to me had been pursuing this for two years.

DR MELLIFONT:  Okay.  Now, your statement deals at some length with the funding model in Australia and into the complexity, and frankly we could spend a couple of hours on that alone.  But in the last few minutes that I have with you, I just want to ask for your response to the assertion some might make that there's simply not enough money to remove the barriers to inclusive education.

DR de BRUIN:  I hear that claim a lot.  School funding in Australia is quite complex.  Decision making and resource allocation distributed across all the States and Territories, as well as the levels of Government, so the Federal level and the State and Territory level.

In addition, there are three education sectors, all of whom receive Government funding; the independent and the Catholic system are partially resourced and supplemented through their own fees.  There's differences between these jurisdictions which means children may gain or lose entitlements by moving address, or moving from one system to another.  In addition, there are levels of funding provided for students with disabilities, including a kind of low level funding provided as a block  
to schools, as well as targeted funding.

All of these create gaps.  The misalignment between States and Federal Government, and between the States themselves, and between the sectors, means that there are gaps into which students can fall and never climb out.  I would also note that the States' allocation of that block funding was actually audited in New South Wales recently, and it was --- their 2019 annual budget was a low level equity funding, it's called.  And equity funding is provided across four areas.  It's provided to assist schools in overcoming educational disadvantage for students from a low socioeconomic background.  Students who are Aboriginal or Torres Strait Islanders, students who need support for English language proficiency and low level adjustments for disability.

Now, in 2019, 288.5 million was provided to New South Wales public schools for low level disability.  12 schools were audited, and within that sample of 12 schools, they found significant under spending of this annual allocation.  For example, four of the schools received $90,728 and reported spending between them $38,671, and also unable to reconcile the funding they had received with the funding that was spent.

Every school audited reported carrying forward unspent funds.  I do not wish the Commission to form the impression that there's plenty of money in the system.  I have no doubt that more funding could do good work.  However, the claim that we can't afford to make   the claim that we can't afford to do this is undermined by this finding that schools are not exhausting the limits of their existing funding.  And given that we know that students are being discouraged to enrol on the basis that there is insufficient money to support their adjustments, I would suggest that having a single system with all of the resources within it available to all students on the basis of need would overcome the complexity of this problem.

DR MELLIFONT:  Dr De Bruin, I will see if the Commissioners have any questions.

CHAIR:  Commissioner Atkinson?


COMMISSIONER ATKINSON:  With those examples you give from Kansas and Vermont, I presume that there are States in the United States that have innovative practices, more innovative than other States?

DR de BRUIN:  If you're talking about at the school level, what I saw there was simply good teaching.

COMMISSIONER ATKINSON:  No, no.  Sorry, I don't mean that.  I mean the State of Kansas, the State of Vermont, did you choose them for a reason, those states?

DR de BRUIN:  We chose them for the low level of segregation.  We wanted to see how it was being done at a system level.  Okay, I understand your question now.

What I saw was that fabulous was they both provided what's called a “technical assistance centre”, and this is effectively a centre that assists schools over a three year process, it's a sort of developmental process, to upskill them, to look at their own data, understand how to read it, understand how to use the funds available to them to the best of their ability to make a tangible difference to equity in the school and outcomes.

COMMISSIONER ATKINSON:  I suppose I also want to explore the difference between what you say in the United States, two states with very good practice, and yet your call for a national approach in Australia, might there not be States in Australia that do it somewhat better than other States, and if we had a national --- we all had to be nationally consistent, would that mean that we might not have the best practice that we could get?

DR de BRUIN:  There are always arguments that contexts matter.  So, for example, the way schools need to run and meet the needs of their students in the Northern Territory might be very different to the way that needs to be done in Tasmania.


DR de BRUIN:  However, that's at the level of school practice.  For example, it might be in the numbers of students who are Indigenous, and how many languages they speak, and how remote the schools are.  However, what I'm talking about is at a systemic level regarding how the funding is used, and how schools are supported to use it well.  And I've drawn attention to those two states in the United States because I visited them, but I've also referred to Finland in my statement as a country that has adopted this nationally to great effect.  And because I had hit 85 pages, I decided I'd better stop, but there was one other example I would have liked to have shown, which is Hong Kong, which is also using this three tier model to provide teacher training and professional learning.  The way they use that model, there is all teachers who are being prepared for teaching get prepared in Tier 1, at Tier 1.  And they then provide Tier 2 training and Tier 3 training as professional learning to experienced teachers, which means that the teachers in schools who are providing those more specialised interventions are more experienced and highly trained.  So there are two good examples of countries that have adopted this.

I think another reason that the United States is a useful example is that, like Australia, it's a federated system.


CHAIR:  Commissioner Mason?


CHAIR:  Commissioner Galbally?

COMMISSIONER GALBALLY:  No questions, thank you.

CHAIR:  Dr de Bruin, I'm surprised to find that the State of Kansas is one of the great proponents of inclusive education.  In 1954 it was the jurisdiction that got taken to the Supreme Court of the United States in Browne v The Board of Education, which is actually Browne v The Board of Education in Topeka, Kansas, in order to segregate schools.  It took them until 1999 to permit evolution to be taught in Kansas schools.  It surprises me that they are such a beacon of light in this respect.  How many schools did you visit?

DR de BRUIN:  I don't have that, I could look it up and provide it to you, a number.  We visited primary schools --- of course, in the United States they have elementary, middle and high schools.  So ---

CHAIR:  They are also run at a local level, aren't they?

DR de BRUIN:  They are, and so that is something I would really like to emphasise, and in fact I was thinking I wish I'd just said that ---

CHAIR:  You just did.

DR de BRUIN:  Because you asked me about what I saw that might be good practice and it was the ---

CHAIR:  I asked you how many schools you visited.

DR de BRUIN:  I can tell you it was multiple schools at multiple levels, but I would have to check my records to be precise with the number.

CHAIR:  The great State of Vermont, which of course is the centre of United States socialism, might be in a little different position, but I was just intrigued by the reference to Kansas.  In fact Kansas has a good staff/student ratio.  Taken State wide, it's 1:12 compared to 1:16 for the most part, in general in the United States.  But the United States does not have an educational system; they have different systems, not only within 50 states, they have monumental differences in their systems within each State because most schools are locally funded and locally run, aren't they?

DR de BRUIN:  They do raise it through the tax system in a fundamentally different way to Australia, and I don't mean to pretend that there is a direct match between their jurisdiction and those here.  However, I'm trying to draw attention, perhaps clumsily, to the use of the framework, and the use of the funding streams through that framework.  So that that's able to be sensitive at the local context.

One district that we visited, I think I mentioned before, had a large number of students who resided in State care, and that technical assistance centre assisted those schools to identify that a number of those students who experienced trauma, and then selected evidence based training for teachers in teaching students with trauma in their background.  So the framework itself is adaptable at the local level, by being driven by local data.

CHAIR:  Okay.  Thank you.

Thank you, Dr de Bruin, for your evidence.  Thank you for your comprehensive analysis of the issues that you've raised in your statement.  We appreciate your assistance, thank you.


CHAIR: Dr Mellifont, are we to have a break now or are we to go to the next witness?

DR MELLIFONT:  We are to have a break.  Does until 3.05 suit the Commissioners?

CHAIR:  3.05 Brisbane time?

DR MELLIFONT:  Yes, please.

CHAIR:  Thank you.  We will adjourn until 3.05 Brisbane time.

ADJOURNED    [2.43 PM]

RESUMED    [3.05 PM]

CHAIR:  Yes.  Dr Mellifont.

DR MELLIFONT:  Thank you.  Good afternoon.  The next witness is Associate Professor Shiralee Poed, and I apologise I've been mispronouncing Associate Professor's name all week, but I've now got it right.  So I formally call Associate Professor Shiralee Poed.

CHAIR:  Good afternoon, Professor Poed.  Thank you for coming to the Commission.  I will ask Commissioner Atkinson's Associate to administer the affirmation to you.  Thank you very much.


CHAIR:  Thank you, Professor Poed.  I think you are in the Brisbane hearing room.  You will therefore be in the same room as Commissioners Atkinson and Mason.  Commissioner Galbally who you will see on the screen is in Melbourne and I am in Sydney and now Dr Mellifont, who is also in Brisbane as you can see, will now ask you some questions.

DR MELLIFONT:  Thank you.

Commissioners, you will find a copy of Professor Poed's statement in Tender Bundle Part B, Volume 1, at Tab 2.  I ask to tender this statement into evidence and that it be marked Exhibit 7.114.  You will find material annexed to that statement in Tender Bundle Part D, Volume 2 Tabs 6 through 10.  I tender that material into evidence and ask it be marked as Exhibits 7.114.1 through to 7.114.5.

There is additional material which is included in Tender Bundle Part D, Volume 2, Tab 10A, and I ask that it be marked as Exhibit 7.115.

CHAIR:  Yes.  Thank you.





DR MELLIFONT:  Thank you.

Could you state your full name, please.

ASSOC PROF POED:  Shiralee Poed.

DR MELLIFONT:  You've made a 43 page statement dated 25 September 2020?

ASSOC PROF POED:  That's correct.

DR MELLIFONT:  And are the contents of that statement true and correct to the best of your knowledge and ability?


DR MELLIFONT:  Okay.  Now, you are currently an Associate Professor within the Centre for Inclusive Education at QUT, is that correct?

ASSOC PROF POED:  That is correct.

DR MELLIFONT:  You are also Honorary Principal Fellow at the Melbourne Graduate School of Education at the University of Melbourne, the National Chair of the Association for Positive Behaviour Support Australia, and you hold a Bachelor of Education, a Master of Education and a PhD in Education?

ASSOC PROF POED:  That's correct.

DR MELLIFONT:  And we of course have your CV with your more complete experience.  What was the topic of your PhD?

ASSOC PROF POED:  It was a qualitative study of disability discrimination court cases exploring the meaning of reasonable adjustments to curriculum.  The title is "Adjustments to curriculum for Australian school aged students with disabilities:  What's reasonable?"

DR MELLIFONT:  Thank you.  What's the focus of your current academic work at the Centre for Inclusive Education?

ASSOC PROF POED:  I have three key areas of responsibility.  The first area is I'm in a research intensive position, which means that I have the opportunity to spend time completing research and applying for grants to conduct research in the area of inclusion and exclusion of students with disability.  In addition to that, I have the opportunity to teach in our postgraduate Masters program, and I'm currently writing two new subjects that will be a part of our new Masters degree.  Those two subjects will focus on multi tiered systems of support, as well as positive learning environments.  And then I provide service to the University, both in my role as co leader of our Inclusion and Exclusion program within the Centre and, as you mentioned, I'm the National Chair of the Association for Positive Behaviour Support Australia.

DR MELLIFONT:  Okay.  And in respect of the two postgraduate subjects that you are writing, they will be offered for the first time next year?

ASSOC PROF POED:  That's correct.

DR MELLIFONT:  Okay.  Now, we've obviously heard a bit already in the course of this week about reasonable adjustments and your evidence reflects that you define  
that as any action or measure that a school takes that enables a student with a disability to participate in the same way as their peers.  Is that correct?

ASSOC PROF POED:  That's how I define "adjustment".  The word "reasonable" is a little more difficult, and from my research over the past five years, I'm concerned that people within education might believe that adjustments are actions that we take in order to enable students with disability to access their education in the same way as their peers.  But they might also believe that those adjustments are limited by the word "reasonable", and it's my view that the word "reasonable" is measured differently within legislation to how it's measured in education.

DR MELLIFONT:  And so can I just stop there for just a moment.  You don't come to the Commission professing to speak as an expert in the law as such?

ASSOC PROF POED:  Not at all.

DR MELLIFONT:  But you are coming to share your experience as to how you're seeing the law operating on the ground or being perceived on the ground.  Is that a fair summation?

ASSOC PROF POED:  That is correct.

DR MELLIFONT:  Okay.  I did cut you off, so I will allow you, if you don't mind, to continue on that theme, please.

ASSOC PROF POED:  As part of my thesis I examined court cases to try to understand the meaning of the word "reasonable".  And when I looked at the legislation, I can see that it can require schools to take into account a student's disability and how it manifests in their learning.  It also requires us to consider the voice of the student or their associates, normally their parents or carers.  It asks us to look at the cost versus the benefits of providing an adjustment, and when thinking about reasonable, it asks us to make sure that the academic integrity of a credential that the student will be awarded on completion of their study isn't diminished by the adjustment.

When I look at how schools think about "reasonable", I feel that some of those arguments are outweighed by the costs of providing an adjustment and so there is a focus particularly for students where there are concerns around safety.

I also listened to the hearing this week, and the cost becomes important as part of the conversation when we realise that funding that might be received by a school, based on presentation of a student's requirements, might not necessarily be directly given to that student or used to support the learning requirements of that student.  So all of those things, I think, impact our understanding of "reasonable".

DR MELLIFONT:  All right.  I want to take you --- I'm at page 2 of the notes and in reference to paragraph 30 of your statement, you say there that:

.... reasonable adjustments are essential [because] schools were not originally designed to accommodate all learners.

What do you mean by that?

ASSOC PROF POED:  Schools in Australia and similarly around the world were not initially designed to accommodate all students.  So from the very beginning, many students with disability were placed in institutions where they received little to no educational provision.  And, then over time, mainly from pressure applied by parents or by changes in community expectations, children with disability were offered an education, initially in segregated settings, and over the last 50 years we've seen an increase in the inclusion of children with disability in mainstream schools.

But mainstream schools weren't initially designed for that cohort of learners, so not only were they not physically accessible and required ramps or elevators or tactile markings, but in addition they required re thinking about how we teach and what we teach, so that students with disability can participate in both learning and extracurricular activities.

DR MELLIFONT:  Okay.  And in respect of the original design not physically being directed to all students, you've observed, of course, that it has had to result in some schools being retrofitted, as opposed to a situation where you've got a design from the start which takes into account a proper facility?

ASSOC PROF POED:  That's absolutely correct.

DR MELLIFONT:  Again, I'm asking you, of course, from your experience as a researcher in this field.  What has your research shown you in terms of the effect that provision of adjustments can have for students?

ASSOC PROF POED:  I think before I talk about my research, I will say that it has been clear from the testimony that has been heard this week that from the perspective of students and their families, the provisions of adjustments can be life altering.  So the simple provision, for example, of accessible playground equipment can go a long way towards including and ensuring the social inclusion of students with disability during lunch breaks.  The provision of individualised tailored adjustments, which are determined in consultation with this student and their family, can help alleviate anxiety and allow a student to flourish academically.

And if we look at what we've heard this week, evidence informed adjustments to help address the function of a student's behaviour can reduce, for example, the rate of suspensions.  And so I want to be really clear in giving some feedback on things that I've heard this week that as an example restraint would not be a reasonable adjustment.  It wouldn't be a strategy.  It's not a treatment and it's not a therapeutic intervention.  We know it does nothing to improve students' engagement.  It doesn't improve students' success.  It doesn't reduce behaviour.  It also damages the  
relationship between the student and the staff who applied the restraint, and it causes trauma and has the potential to both injure and, in circumstances that we have seen overseas, it can result in death.

So in Australia in our government policy, it's generally referred to as a last resort activity to ensure the safety of a student or their peers, but it's not an adjustment, it's not a behaviour management strategy.

DR MELLIFONT:  Okay.  Now, I wanted to ask you about paragraph 24 of your statement which speaks to educational adjustments, but you've heard also now the evidence of Dr de Bruin because your statement, of course, does refer to multi tiered systems of support.  I will still ask you the question: some examples, please, of educational adjustments?

ASSOC PROF POED:  Thank you for mentioning Dr de Bruin.  She provided a fabulous explanation of multi tiered systems of support this morning.  I will also use a similar example to Dr de Bruin.  When we provide adjustments, if we're using a multi tiered model, we will normally look at providing adjustments for students across three tiers.  At that first tier we're looking for adjustments that will help, as Dr de Bruin suggested, at least 80 per cent of our students in our room to be successful.  So if I'm teaching secondary English and I want to use a novel to help students learn something in my English class, I'm going to be thinking about those students for whom literacy is difficult and I will be thinking about what other ways they can access that novel.  So an adjustment might be that I provide the novel on tape.  It could also mean that I provide a video adaptation of the novel that the students are reading.  It could mean that I put together scaffolds such as worksheets that might draw out sentence starters to help students write about that novel.

These are universal adjustments that I could use in a class that would benefit a whole range of students.

I would also like to mention that that doesn't take away from Dr de Bruin's important point about then ensuring students who use those adjustments still get quality literacy intervention.

But at the second tier, even if I provide all of those universal supports, there will still be students for whom small group targeted intervention could also be useful.  So it might be that I work with students in a small group to help them understand what they've learnt through the novel.  So perhaps I could use a worksheet, which we call a “cloze exercise”, where the student has to fill in blanks to show their understanding of the novel.  Not all students might need that approach, but I might do it with a small group of students.

And then at the third tier there are individual students for whom particular adjustments might be essentially - - may not be needed by anyone else.  An example of that could be that if I had a student with a vision impairment who required a large print version of the novel, I would provide that as another form of adjustment.

DR MELLIFONT:  Thank you.  The spelling of "cloze" in the context you've used it, please?

ASSOC PROF POED:  Yes, it's C L O Z E.

DR MELLIFONT:  Can we turn now to who identifies changes the curriculum, please.

COMMISSIONER ATKINSON:  Can I ask a question about that?

DR MELLIFONT:  Certainly, of course.

COMMISSIONER ATKINSON:  As a former secondary school English teacher a long time ago, so you're teaching this novel and talking about the three levels.  But what if you've a student for whom the possibility of accessing the story and concepts in that novel are just not possible?

ASSOC PROF POED:  Thank you for the question.

COMMISSIONER ATKINSON:  What adjustment are you going to do then?  It just seems to me to be more realistic about the cohort of students for whom that kind of individual support is really critical.

ASSOC PROF POED:  Thank you.  It's a good question.  And it's a question that all teachers grapple with thinking about, and English teachers are generally pretty passionate about the concepts and themes in the stories that they choose.  So, in a Year 9 class I worked with in New South Wales, we had a student with Down Syndrome, and the text to be studied that term was Romeo and Juliet.  And there were questions about whether the concepts embedded within that story were too difficult, and certainly the language is complex.  But when we break down stories like that, and we understand that themes such as jealousy and revenge and love are all important things that every student should have the opportunity to learn about, we can then think about: how do we teach those themes without necessarily ensuring that the student can understand Shakespearean writing?

So Kate this morning spoke about the concept of a modification, and in a circumstance where you might have a student for whom the text is difficult, teachers spend their time thinking about “why is this text important?”, and that's a question we should be able to answer for all students, because many students will say, "Why are we learning Shakespeare?  Why is this relevant?". So it's helping students engage with something that the immediate use of it may not be apparent, but the importance of it can be emphasised for all learners.



CHAIR:  I'm sorry, can I just follow up.  That explains why it's important for the student to understand the concepts.  I'm not sure it explains how the teacher grapples with the difficulty in a large class where the students have different expectations and abilities of the kind that Commissioner Atkinson referred to.

ASSOC PROF POED:  Thank you, Chair, that's a great question as well.  I will use part of an answer that I had to another question, if I may, to explain my response to that.  I said earlier that schools were never designed for all learners, and this is an example of teachers moving in a new direction to ensuring that all learners now can attend our schools.  And so, when we're in that situation, previously we may have taught lessons to all students and hoped that most of them got it, but know that some of them might not and they miss out.

Today, teachers are trained as part of our professional standards that Dr de Bruin mentioned.  Teachers receive training on how to diversify learning for students in their class, and they're taught strategies about how to design units of work and lessons that enable the broadest range of students to engage in those.  There's a phrase that we use in teacher education called "making curriculum smart from the start", so thinking about when we're designing a unit of work, that as many students as possible will be able to engage in that.

One of the things that has changed in teaching from the time when I commenced teaching is that I think teaching has become a far more collaborative industry now.  As a teacher I know that there are wonderful resources available from experienced teachers that show us how to include students, categories of teaching Romeo and Juliet to a young student in Year 9 with Down Syndrome.  At the time I was teaching that unit of work, I didn't have the network available today to do that.

There is also, through the rise of social media, wonderful opportunities for teachers to share resources, and so in the students that I work with in teacher education, I know many of them will use their networks to say, "I'm teaching a unit of work, I have this type of student, this type of learner in my class, has anyone taught a unit like this before, has adapted resources available", and we rely on our networks to support us when we're encountering something new for the first time.

DR MELLIFONT:  Thank you.  Thank you.  To some extent my next two questions might in part have been answered, but I will ask them in any event.  So who identifies changes to the curriculum, and you just indicated teachers.  I will ask you to expand to that, please.

ASSOC PROF POED:  I guess the first thing I would like to say is that for many students with disability, the curriculum does not need to be changed.  So there is a small number of learners who require a complete change to the curriculum which we would call a ‘modification’ Kate spoke about this morning.  For many students with disability, the changes in the way we teach, the pedagogy that we use, but they can engage in learning on the same basis as their peers.  They could also be engaging in  
the same learning but assessed against a different level.

So I could offer another example if that's useful.

DR MELLIFONT:  Thank you.

ASSOC PROF POED:  In a class that I tutor where students were learning design and technology, and all students were learning how to make a hat, and they had to design and make their own hat, for one student they were decorating a hat.  The hat was purchased already, and their role was to decorate their hat.  We can change the way students engage to still enable them to learn the same concepts, the same ideas as their peers, but with different outcomes to assess them.  But all of that is the responsibility of teachers.

DR MELLIFONT:  You've spoken about collaboration in your answer just given to the Chair.  Can I take you to mutual positive behaviour support, and I think you've identified that you are Chair and Director of the Association for Positive Behaviour Support Australia, which is a not for profit organisation.  Is that correct?

ASSOC PROF POED:  That is correct.

DR MELLIFONT:  You are a network of International Association of Positive Behaviour Support, and you have almost a thousand members working in early childhood settings, schools, universities, disability and community service and aged care; correct?

ASSOC PROF POED:  That is correct, I will just slow for the interpreters because that was a lot.

DR MELLIFONT:  It was, and I'm sorry.  Thank you.  Now we've heard some evidence this week obviously already about positive behaviour support.  And you say that some people think it's a program used to help students with their behaviour but you say it's not.  Can you explain what you mean by that?

ASSOC PROF POED:  Sure.  Because this Royal Commission is national, I might just speak slowly and show that positive behaviour support is known by different names around Australia.  So when I talk about positive behaviour support, I'm also talking about school wide positive behaviour support, and I'm talking about Positive Behaviour For Learning.  And in the US it's also called Positive Behavioural Inventions and Supports.  So just to be clear, all of those names are the things that I'm talking about.

There are some who believe that it's a program that we use in schools for students who are naughty, but that's not the truth.  It's a framework that we train schools to use which helps them to make whole school change to the ways that they respond to student behaviour.  So if it's implemented correctly, what we will see across all of those schools are some core features, one of which is that schools will use data to  
make decisions around how they respond to students' behaviour.  They will use that to identify when students are having problems, and they'll use that to identify the solutions.

Schools that are implementing correctly will also be teaching students the social, emotional and behavioural practices that they want to see.  And they will be using research informed approaches that work when we respond to behaviour.  They will be encouraging students to use pro social skills, so behaviours that build social relationships.  They will be addressing behaviour by its function so they will be trying to understand why behaviour occurs, what a student might be communicating through their behaviour, and then addressing that rather than the behaviour itself.

And if they're implementing it correctly, they will have thought about how to ensure both students and families have a strong voice in educational process, and that they're using culturally responsive practices that suit the range of learners in their school.

DR MELLIFONT:  Okay.  Now, you've actually done some relatively recent research, and the results of that research is that 30 per cent of schools, approximately, across Australia have been trained to implement positive behaviour support?

ASSOC PROF POED:  Yes, that's correct.  So we know that that represents about 3,000 schools and the numbers vary in different states.

So New South Wales and Queensland have had the largest uptake of being trained in Positive Behaviour for Learning.  It's what it's known by in those two states.  And Victoria is probably our third largest state with about 26 per cent of their schools trained.

DR MELLIFONT:  Okay.  And I said 30, but it's closer to 31 per cent overall.

DR MELLIFONT:  --- and New South Wales and Queensland are a bit over 50 per cent, and Victoria is almost at 26 per cent.  Is that correct?

ASSOC PROF POED:  That is correct.

DR MELLIFONT:  Okay.  Now, earlier this week there was discussion about why schools who have tried positive behaviour support might drop back into old ways of teaching.  Are you aware of any funding issue in that regard, in the Australian context?

ASSOC PROF POED:  I am.  I was really pleased that you asked that question.  Definitely there are reasons why schools might cease using positive behaviour support, and the key reason we've identified for, that is Government funding runs out.  So if I give an example.  In 2007 the Victorian Government made an investment, a small investment in training schools in school wide positive behaviour  
support.  They extended that trial from 2009 until 2011.  And then from 2012 and 2013, there were very limited resources available for schools to continue.  In 2014 and 2015 the Government again invested in school wide positive behaviour support.  I was seconded from the University of Melbourne to run that at a State level.  Then again, from 2016 and 2017, there was no funding.  The funding got reinstated in 2018, and it continues presently and will run out at the end of next year.

In those moments between where the funding has run out, it's left schools in a position to be able to implement school wide positive behaviour support with no direction or guidance, and so when that occurs, particularly in schools that are very new to implementing the model, they may revert back to previous practice because they don't have the knowledge or the skill to be able to continue.

DR MELLIFONT:  Thank you.  Now, I won't get into the detail of why Governments might reason in terms of funding decisions, but I do want to move, please, to the topic of unjustifiable hardship, and again not asking you as a lawyer but asking you what has your research revealed in terms of parents' impressions of that concept, please?

ASSOC PROF POED:  I'm going to refer to my notes here because I have some percentages that I want to ensure that I get accurate.  From our research that we have done where we have surveyed families recently, we have conducted a survey of 745 families and we asked them about their educational experiences.

COMMISSIONER ATKINSON:  Sorry, I just want to interrupt to make sure I get this right.  How did you choose the 745 families?

ASSOC PROF POED:  Thank you.  That's a good question.  We created a survey which we initially piloted with a set of families which were through a parent advocacy organisation to ensure we asked questions that were clear for families.  We then circulated our survey to parent organisations and we asked them to send it out to their members.  That obviously brings a bias immediately, and we acknowledge that within our surveying.  So those 745 families were targeted families of children who have disability but may also have a particular view on education because of the organisation that they're a member of.


ASSOC PROF POED:  You asked about unjustifiable hardship.  Those families told us, from the 745 that we surveyed, 29 per cent of families told us that they felt like they were discouraged from enrolling their child within a mainstream school.  11 per cent of families told us that their child's enrolment in a mainstream school had been denied.  34 per cent of families told us that they were encouraged to transfer their child from a mainstream to a special school.  33 per cent of families told us that they were told their child would do better if they attended a special school.  15 per cent of families told us that their child was only able to attend school on a part time basis, and 20 per cent of families told us they were asked to supplement their child's  
funding for school, to provide additional financial support for their child's enrolment.  And 24 per cent of the families told us that their child was regularly sent home from school for behaviours that they would describe as minor.

Those percentages all suggest that hardship is a part of the conversation for families of students with disability.

DR MELLIFONT:  Yes.  Can I ask you to expand a little bit on that by reference to this question?  Does your research, again you've acknowledged that there is bias within your research you've done quite expressly with me, are indicators there that this has led to conflict between families and schools?  How does it manifest itself?

ASSOC PROF POED:  My research looks at inclusion.  There is a bias.  I'm talking to families who are telling me about their experiences of being excluded.  I'm not talking, in this particular study, to families who have experienced inclusion.  So that's the bias, and I do want to be clear.

I also spent eight years completing my doctorate looking at court cases, which are obviously the tail end of a process where families have not been able to find a mediated solution, and so, with that in mind, obviously in my studies I am looking at situations where families have had concerns.

When I look at the process that they followed, I can see that they have initially raised their concerns at the school level with a teacher or with a principal.  Many of them have then followed through with conversations at a district or a regional level, trying to resolve their complaints.  And then some have gone to the State level to the Departments to try to resolve the situation.  As was mentioned this week, some will go to then external mediation through a Disability Discrimination Tribunal or Anti Discrimination Tribunal, Human Rights Commission, to try to resolve those issues.

We know that some States appear to have good complaint making mechanisms and some families report success in being able to use those mechanisms to resolve their complaints, but we also know that there are families who move their child's school because they find the complaint too difficult to resolve.  And I have also had many families contact me to say that they are fearful about making complaints because they worry about the impact that that might have long term on their relationship with the school as they navigate their child's enrolment.

DR MELLIFONT:  Thank you.  I want to turn to the role of students in identifying adjustments in their education, the students' voice.

ASSOC PROF POED:  The role of students is critical.  We heard on Monday from "Alice", and I can't think of anyone who would know better about what adjustments she would need than "Alice" herself.  There's strong international research that shows the importance of students with disability having a say in the adjustments made to their program, but we're aware from research that we have conducted here in  
Australia that many students with disability don't even get invited to their individual education plan meeting, and they're not consulted about the adjustments that are made for them.

And it raises the question of how we adequately prepare people with disability to be advocates in their own lives as adults if we didn't take that opportunity to consult and prepare with them when they were students.

CHAIR:  We also need to consider how the law can be enforced, don't we?

ASSOC PROF POED:  We do, Chair, and you had raised a question about ---

CHAIR:  I'm sorry to interrupt again.  But what you are describing is unlawful conduct, isn't it?

ASSOC PROF POED:  It is unlawful conduct, but it's possible that schools might interpret a loophole within the legislation because the obligation to consult says to consult with the student and/or their associate.  And so I think many schools believe that simply consulting with the associate, that is the parent or the carer, meets their legislative obligations.  Guidance notes that accompany the Disability Standards are clearer and emphasise the importance of consulting with students, but that requires our schools to be familiar with the Disability Standards and the accompanying guidance notes.

CHAIR:  It's a bit like the banks complying with the law which is what Commissioner Hayne said was the fundamental problem, that they weren't.


CHAIR:  Sorry, Dr Mellifont.  I interfered yet again.

DR MELLIFONT:  No, not at all.  Not at all.

Professor Poed, your statement deals significantly with the topic of funding and the detrimental impacts that certain models can have.  I might just touch on that briefly before moving to the next point.  Thank you.

ASSOC PROF POED:  Thank you.  I know Dr de Bruin spoke about this earlier today so I won't repeat her commentary, but one of the issues with the additional resourcing model that exists in how we fund students with disability is it requires educators to turn their gaze towards the things that a student cannot do.  And in order to do that, it allows the school to then apply for a greater slice of funding if they can show that there are more things that a student can't do.  And it results in schools, on some occasions, presenting a worst case scenario about students.

The challenge that that brings then is it can have a detrimental impact because it can lower the expectations of teachers and it reinforces the deficit stereotypes that might  
exist around disability.

DR MELLIFONT:  Thank you.  Now, I'm going to go a little bit out of our planned order.

COMMISSIONER ATKINSON:  And I'm going to interrupt you.

When I heard Dr de Bruin talk about the funding and a different model of funding, my concern was this.  If a student --- if specific funding comes because there's an identified need based student or students, then there does seem to be at least a fighting chance that that funding will be used to give the extra resources or whatever  supports are needed for that student.  But if the school just received funding, then wouldn't there have to be even more argument for that student to be provided a slice of that funding for the supports they need?  So I worry about the unintended adverse outcome of that particular argument for a different style of funding.  I understand completely the deficit model, the unattractive side of the deficit model.  But I worry always that any suggestion for reform where there might be an unintended adverse consequence for the very people that we are trying to assist with this reform.  Have you got anything you could say about that?

ASSOC PROF POED:  I share that concern, and I think that's a real concern.  The only thing that I could say in response to that is that at the moment, we turn our gaze to the things that students can't do, and we present a case about a student, and that attracts an amount of funding that we would hope would then be able to be used to support that student.  What we've heard in testimony here, and what we've seen from research that we've conducted, is that those funds that were attracted for that student don't necessarily flow on to that student.  They may then be shared with other students or they may be used at the discretion of the principal.  It's a hugely expensive process for families to gather the necessary documentation to be able to make their case that their child requires funding, and then it's a time consuming and administrative burden on teachers to do all of that documentation if the end result is that principals have discretion in how they use the funding anyway.  I don't have an answer for you.  I don't have an answer for an ideal funding system.  I strongly support a system that can address the needs of a student with a disability, that puts in place the adjustments that are designed and tailored for them, but I need clever economic people who can provide those solutions.  And I hope we find them.


DR MELLIFONT:  I want to take you to paragraph 140 of your statement which recommends that:

.... policymakers investigate how consultation occurs with students who meet the legislated definition of disability but are ineligible for additional resourcing.

What I want to ask you is what you have in mind as to what that investigation might  
look like.

ASSOC PROF POED:  Thank you.  Dr de Bruin raised this issue this morning as well, that there are a set of students for whom they have a disability but consultation with them appears to be optional because they're not required to have an individual education plan, which is the trigger mechanism for most schools to conduct consultation.  And from my work in higher education in the last 13 years, talking with teachers in postgraduate classes, they highlight that they're often unaware that they have an obligation to consult that group of students.  They believe that their obligation only extends to students with a disability who require or who receive additional resourcing.

So you asked me what I had in mind about what could be done to improve that, and I think that we need an investigation into this at a national level to address what advice Departments and education sectors provide schools in terms of their obligation to consult.  I'm not sure that there has been a research project on that topic, but from talking with colleagues in teacher education, I'm aware that there are a group of students who I think fall through a gap that are not consulted in relation to the adjustments provided to them, and I think it's a policy gap.  I don't think policy is clear for that set of students.

DR MELLIFONT:  Thank you.  Now, I want to focus my remaining time with you this afternoon on a question of data collection and reporting and, in particular, in respect of restrictive practices.  And just to orient you to where I'm at, I'm at para 34.  So, at paragraph 144 of your statement you recommend that the Royal Commission compel education jurisdictions to provide data on part time attendance, suspensions, formal and informal, expulsions and exclusions, particularly as these practices are applied to students with disability as these are not yet publicly available, collected consistently or reported for analysis.

Now, you make this recommendation as a person who has long been involved in research in the area and have gone looking for data.  Can you tell me why you make that recommendation?

ASSOC PROF POED:  Absolutely.  I made the recommendation specifically in relation to the topic of restraint.  But if I talk about those other areas, suspensions, expulsions, exclusions, or even simply part time attendance, some jurisdictions provide that data on their websites.  The link changes all the time, so we constantly scour to find the data.  But not all jurisdictions provide that information.  So if you were to ask us for a national picture on the part time attendance of students with disability, it's very difficult to give you a definitive answer.

In the area of restraint, there is very limited publicly available data on the use of restrictive practices in Australian schools.  I would really like to acknowledge the work of the ACT Government in attempting to address, redress this issue.  The Senior Practitioner in the ACT does collect data from all Government services for each year, and has done so for the last two years.  They make their data publicly  
available so we know that, for example, in 2018 to 2019, 48 chemical restraints were used, 10 environmental restraints, 201 seclusions, 300 physical restraints and two mechanical restraints.  So a total of 561 reported restrictive practices.  But what we don't know is specifically the figures for education.  They are the figures across all Government services.

They're the only State at the moment that provide any public data about the use of restrictive practices.

DR MELLIFONT:  Can I just ask you, is that data disaggregated for First Nations people?

ASSOC PROF POED:  No.  It could be at the Government level but it's not publicly known, any disaggregation.

DR MELLIFONT:  And sorry to do this in general terms and stop me if it's not a good thing to do, but you spoke before about some data being available in some places.  Typically is there disaggregation for First Nations?

ASSOC PROF POED:  Again, I can't answer that.  This was the most frustrating part of my preparation to speak to the Disability Royal Commission.  It's the area of my work in which I'm most frustrated.  I cannot tell you the data on frequency of the use of these practices.  I cannot provide you with data on these practices and whether they're disproportionately used against students with disability.  I cannot provide you with data on whether these practices are more frequently used in some schools rather than others.  I can't tell you whether they're disproportionately used with students of a particular age.  I cannot provide this because Education Departments, even those that collect them do not make them publicly available despite repeated requests.

DR MELLIFONT:  Requests by you?

ASSOC PROF POED:  I've absolutely made requests in this space for many years.

DR MELLIFONT:  Excuse me for just a moment.

So on that topic, can I use your words to me, your fervent hope is that the Royal Commission will do what it can to address those data gaps?

ASSOC PROF POED:  It is my absolute desire that that occurs.  I'm left in a position of being able to try to get that information through a Freedom of Information request, and I have approached one Department and asked them, “is that the road that I need to take in order to get these data?”  That's not something that as a researcher I would do lightly because I'm very invested in wanting to see systems change, and I don't want to be adversarial with an Education Department.  But without the data, it's impossible for us to know, where do we start with trying to reduce the use of these practices, or are they at levels that we should be concerned about?  We make those judgments based on what parents tell us through our surveys, and what we read  
through media reports as well as court documentation.

DR MELLIFONT:  So Queensland have introduced a policy in 2020 and made a commitment to collecting data on restrictive practices at a central level.  Is that right?

ASSOC PROF POED:  That is correct.

DR MELLIFONT:  Can I just ask you, this is a reasonable summary of the particular concerns you have about lack of data for restrictive practices, and you've touched on it already.  Let me see if I can summarise it and if I've left anything out, I will ask you to fill that in and then I will hand to the Commissioners.

The lack of publicly reported data limits the ability of researchers to accurately analyse the extent to which restrictive practices have been used.  It is impossible to say with accuracy how often students with disability are subjected to the use of restrictive practices, whether a type of practice is applied more frequently, the circumstances within which restrictive practices are used, or the effects of these practices on Australian students.  What is also unknown is whether particular groups of students experience higher rates of restrictive practices, for example, students with particular disabilities, of a particular age, students who are culturally or linguistically diverse, gender diverse, those from different racial backgrounds or students who are First Nations.  It is also unknown how intersectionality may impact rates of restrictive practice.

Is that fair?

ASSOC PROF POED:  That is fair.  But I would also like to add: not only is the data impossible for us to get; we're not even sure whether every state and territory has a policy on the use of the practices.  We know for certain that the ACT, Queensland and Victorian Governments provide policy advice to schools on the use of restrictive practices, and to a limited extent, in our South Australian policy they give some advice around behaviour support but not specifically on restrictive practices.  But we're unaware even if the other States have a policy that regulates the use of these practices and unpacks their use for teachers to understand.

DR MELLIFONT:  Thank you.  Commissioners.


CHAIR:  Thank you very much.

Commissioner Galbally, do you have any questions?

COMMISSIONER GALBALLY:  I wondered if you could explore a bit more why jurisdictions haven't picked up the "Positive Behaviour For Learning" approach, and  
keep allowing the “stop start” to go back to the "manage and discipline" approach?  So they're just not committed --- what's your view of that?

ASSOC PROF POED:  Thank you for the question.  Having worked in Government and working in Government policy for a period of my career, I have some understanding of why some Governments might make those decisions, but I can't speak for all.

It may be because funding and Government tends to happen in cycles, and so something gets prioritised for a period of time, and when that cycle is finished, attention gets turned to a different problem.  And so the behaviour of students in schools sometimes grabs the attention of Governments and they'll invest in a process to address that, but then three years down the track their focus might turn to their literacy results, and so funding is redirected to an area that requires support.

Sometimes they will look at data and say this isn't making change fast enough, and so they will view the approach as ineffective.  And then other times, and I've been in this circumstance, there will be a change of Government and a new Government may not necessarily wish to have their successors tied to an approach that was implemented by a previous Government.  Or they may have made an electoral commitment that they consider important.  One of those we hear quite often in education, Governments making a commitment towards zero tolerance for behaviour, and zero tolerance and positive behaviour support don't go together.  So if a Government wins on a back of making an electoral commitment of making a tolerance, it is possible that that Department might pause their application of positive behaviour support and focus more on zero tolerance policies.


CHAIR:  Commissioner Mason, do you have any questions?

COMMISSIONER MASON:  Yes.  I do have a question but I think I would know the answer but I just wanted to ask it.  The 745 families in the survey, were any First Nation families involved in the survey?

ASSOC PROF POED:  Yes, there were.  I couldn't tell you the exact number but I can answer that on notice, if you would like.

COMMISSIONER MASON:  Yes, please.  Thank you.  And also around geography, around regional or urban or remote if that's possible as well?

ASSOC PROF POED:  We can provide that data.


CHAIR:  Commissioner Atkinson?


CHAIR:  I take it, Professor Poed, that the study that you refer to is that in footnote 49 to your statement published in the International Journal of Education on inclusive education.  Is that the one we're talking about?

ASSOC PROF POED:  That's correct, Chair.

CHAIR:  Okay.  Thank you.  I just have a question.  I'm absolutely intrigued that you spent eight years examining 134 judicial decisions.  What did you think you were going to find out about whatever it was that you were looking at them for and did it differ from what you actually found out?

ASSOC PROF POED:  The journey of doing a PhD thesis.  I can say the first year wasn't doing that.  I had a plan in the first year to do something different.  And despite having my ethics approved for that study where I had hoped to talk with some families who had been through a litigation process, the principal of the school where the families were all based refused to allow me access to the teachers and families.  So I changed and decided to just look at published judicial decisions because I didn't have to get anyone's permission to do that.

And I figured I could learn a lot about the decision making process used by commissioners and judges when they're weighing up the word "reasonable".  And I simply used the wording that's described in the Disability Standards around reasonableness and just looked at whether commissioners or judges used those as part of making their decision.  And what I hoped to learn from it, at the time I commenced the study I was in a government policy position and part of my responsibility was giving some advice to the legal division when there was an allegation of discrimination.  I wanted to see in cases that I thought were complex, where I personally couldn't decide the reasonableness of a request, I wanted to see how judges made up their minds on things that are complex matters.

CHAIR:  If you had asked me I could have told you and saved you eight years.

ASSOC PROF POED:  I wish I had done that, I assure you.

COMMISSIONER ATKINSON:  Even that might have been difficult.  Getting ethical approval to talk to judges is very difficult.

ASSOC PROF POED:  Getting ethical approval to talk to people is very difficult.

CHAIR:  Thank you very much for your very enlightening evidence, if I may say so, and the material that you've provided us with.  It has been very a helpful, very interesting discussion.  Thank you very much.

ASSOC PROF POED:  I appreciate the opportunity.  Thank you.



CHAIR:  Dr Mellifont, does that mean we adjourn until 10 o'clock tomorrow morning Brisbane time?

DR MELLIFONT:  Yes, it does.  Thank you.

CHAIR:  All right.  We will do that and resume at 10 o'clock tomorrow Brisbane time.  Thank you.

DR MELLIFONT:  Thank you.