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Public hearing 17 (Part 1): The experience of women and girls with disability, Virtual - Day 1

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CHAIR:  Good morning, everyone.  I want to welcome everybody who is following these proceedings to this very important Public Hearing 17 of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People With Disability.  The primary subject matter of this hearing, as has been announced, is the experiences of women and girls with disability with a particular emphasis on family, domestic and sexual violence.

As Ms Eastman SC will explain shortly, a closed session of the public hearing will be devoted to the experiences of people with disability who identify as members of the LBTIQA+ communities.  I shall ask now Commissioner Mason, Andrea Mason OAM, to make the acknowledgement of country.

COMMISSIONER MASON:  Thank you, Chair.  I wish to pay my respects and acknowledge the First Nations people of the land on which the Royal Commission is sitting today.  We recognise the Gadigal people of the Eora Nation, the traditional custodians of the land on which the City of Sydney is now located.

We acknowledge the Arrernte people, the traditional owners and custodians of Mparntwe of Alice Springs, where I'm sitting.  We acknowledge and pay respect to the Ngunnawal people, whose land is now where the City of Canberra is located.  And we recognise the Wurundjeri people of the Kulin Nation, where the City of Melbourne is situated.

We also wish to acknowledge the traditional custodians of the various lands on which you are all virtually appearing from and any First Nations peoples who are participating in this hearing, especially Elders, parents, young people and children with disability.  Thank you.


OPENING REMARKS BY CHAIR


CHAIR:  Thank you very much, Commissioner Mason.

As with so many other public hearings of this Royal Commission, Public Hearing 17 has had to be reconfigured because of the COVID 19 pandemic and the restrictions associated with the pandemic.  The hearing was originally scheduled to take place in Hobart, for five days from today, with witnesses appearing in person and members of the public able to attend the hearing.

The travel restrictions which are still in place around the country have made this impossible.  Accordingly, Public Hearing 17 will commence today with a two day virtual hearing.  The hearing will resume for five days, or so, in early 2022.  All being well, this will provide an opportunity to hear in person from women and girls with disability who are prepared to tell the Royal Commission of their experiences of family, domestic and sexual violence.

 
There are four Commissioners participating in this hearing.  Commissioner Barbara Bennett PSM is in Canberra.  Commissioner Rhonda Galbally AC is in Melbourne.  Commissioner Andrea Mason OAM is in her home town of Alice Springs, after an odyssey of seven weeks in which she experienced quarantine in a bewildering variety of locations and jurisdictions.  To complete the quartet, I am in the Royal Commission Sydney hearing room.  Joining me in the Sydney hearing room is Ms Kate Eastman SC, Senior Counsel Assisting the Royal Commission.  Ms Mary Anne Ryan is appearing from Hobart and Ms Simone Fraser from the Royal Commission's Brisbane hearing room.  I shall take appearances shortly from parties who have been given leave to appear at the hearing.

The phenomenon of violence against and abuse of women and girls is widely recognised to be pervasive throughout Australian society.  For a very long time, the phenomenon was hidden and ignored by a largely male dominated society.  Violence against and abuse of women and girls with disability is, if anything, even more pervasive.  It has been hidden or ignored to an even greater extent.  So, too, violence and abuse of LBTIQA+ people with disability.

Whatever the position has been in the past, there is now a great deal of information in this country about the nature and extent of family, domestic and sexual violence against women and girls.  There have been numerous investigations and reports into the issue.

To take just one example among many, the Victorian Royal Commission into Family Violence published a seven volume report in 2016 exhaustively analysing the problem.  The Royal Commission, which was headed by my colleague of over five decades' standing, the Honourable Marcia Neave AO, made no fewer than 227 recommendations, evidence that this hearing will consider certain matters arising from that report.  Successive Australian state and territory governments have made commitments to address domestic, family and sexual violence as a national problem of enormous dimensions.  For example, the National Plan to Reduce Violence Against Women and their Children 2010 2022 has been in place for over a decade and a new national plan is scheduled to come into operation next year, or possibly the year after.

Yet domestic, family and sexual violence persists.  Many say it has even got worse, despite the commitments from governments and the resources that have been devoted to initiatives designed to reduce the incidence of violence in all its forms.  No one can disagree with the opening words of the statement from delegates to the 2021 National Summit on Women's Safety when they said this:

Everyone has the right to safety. Addressing all forms of gender based violence including domestic, family and sexual violence must be a priority for all Australians to achieve our shared vision of a community free of violence against women and children.

While a great deal is known about domestic, family and sexual violence against  
women and girls, much less is known about violence against women and girls with disability.  The Victorian Royal Commission devoted a chapter, Chapter 31, to people with disabilities but observed that the lack of systematic and disaggregated data, information on violence against people with disabilities made it difficult to be precise about the extent of family violence involving people with disabilities.

Ms Eastman will explain in her opening statement what the Royal Commission has been told by women and girls in submissions, private sessions and other forms of engagement about their experiences of family, domestic and sexual violence.  These experiences have informed, and will continue to inform, the approach of the Royal Commission in determining how to reduce the levels of all forms of violence against and abuse of women and girls with disability.

A critical step towards developing measures that can reduce family, domestic and sexual violence against women and girls with disability is to collect data on the phenomenon.  Obviously, collection of data is not sufficient to address and redress the problem but it is a necessary starting point.  The Royal Commissioners look carefully at existing sources of data and we have also commissioned our own research.  This research includes asking the Australian Institute of Criminology to prepare a statistical report on the experiences of domestic violence among women with restrictive long-term health conditions.

The Institute's report contains a wealth of information based on a survey of 15,000 women, of whom 1,705 had a so-called restrictive long-term health condition.  This is an expression that was defined in a manner that is consistent with the Australian Bureau of Statistics' definition of "disability".  Among many conclusions, the Institute's report found that 12.6 per cent of the women with disability had experienced physical violence within the past three months.

Of women with disability who are in a current relationship, 23 per cent, or nearly one in four, had experienced physical violence within that same period of three months.  Nine per cent of women with disability had experienced sexual violence within the three month period.  That figure increased to 16.4 per cent, or nearly one sixth, of women with disability in a current relationship.

After controlling for other risk factors associated with domestic violence, the Institute's report found that women with disability experienced physical or sexual violence 3.8 times more often than women without disability.  Other bodies have conducted studies which have reported alarming rates of sexual harassment.  For example, the Australian Human Rights Commission found in a 2018 survey of sexual harassment in Australian workplaces that 85 per cent of women without disability had experienced sexual harassment in any setting on at least one occasion in their lifetime, while 89 per cent of women with disability had at least one experience of sexual harassment.

As I have said, understanding and quantifying the problem is only a start.  Just as the entire Australian community must confront and address the reality of domestic,  
family and sexual violence, so the entire Australian community has to confront and address domestic, family and sexual violence directed at women and girls with disability and at LBTIQA+ people with disability.  The delegates to the 2021 National Summit on Women's Safety stressed that the experiences of women with disability must be listened to and embedded in all prevention strategies and responses.

The statement said:

All definitions, legislation, policies and reforms from primary prevention through to responses and recovery must be inclusive of women and girls with disability, including the unique types of violence and the settings in which it can be experienced.  Women with disability must be central to all discussions and responses and must recognise the intersections with other forms of discrimination experienced by women across a range of backgrounds.

The evidence at this hearing will address those issues.  I will now take appearances, starting from Ms Eastman.

MS EASTMAN:  Good morning, Commissioners.  I appear with Ms Ryan, who is in Hobart, and Ms Fraser, who is in Brisbane.

CHAIR:  Thank you, Ms Eastman.  I will take appearances from parties given leave to appear, starting with the Commonwealth of Australia.  I think you have to unmute.

MS MORGAN:  I am unmuted.  Can you hear me, Commissioner?  I appear, Ms Morgan, on behalf of the Commonwealth.  Thank you.

CHAIR:  Thank you very much, Ms Morgan.

The State of New South Wales?  I can't hear you, Ms Furness.  I don't know whether it's muting or there is some other problem.  Can you try again, would you mind?

MS FURNESS:  I'm unmuted.  As I understand it, the Royal Commission has muted me.

CHAIR:  I can hear you, so I assume others can hear you as well now, so please go ahead.

MS FURNESS:  I appear for the State of New South Wales, instructed by the Crown Solicitor's office.

CHAIR:  Thank you, Ms Furness.  The State of Queensland?

MS McMILLAN:  Good morning, Chairman and Commissioners.  I am Kathryn McMillan, Queen's Counsel.  I appear with Ms Clohessy and instructed by Crown Law.
 

CHAIR:  Thank you, Ms McMillan.  The State of Victoria?  Do we have an appearance for the State of Victoria?  The State has been given leave to appear.  If there is no appearance this morning, an appearance can be taken later if a representative is, in fact, present.  I understand that although the State of South Australia has been given leave to appear, there is no representative present today.  If there is, that representative can announce their appearance, but I assume that query will meet with silence.  All right.  Thank you.  I think they are the appearances.  I will now ask Ms Eastman to make her opening statement.


OPENING STATEMENT BY MS EASTMAN


MS EASTMAN:  Thank you, Chair.  As Counsel Assisting, we also acknowledge and pay our respects to the traditional custodians on the lands on which we are meeting today.  We pay our respects to First Nations Elders past, present and emerging and to all First Nations people following this public hearing.

Commissioners, this is not the hearing that we expected to have.  We had planned for this public hearing to be held in person in Hobart, starting today and continuing through to Tuesday next week.  Many women with disability who have experienced violence and abuse are ready to share their experiences with you in person.

After consulting with the women who wish to share these experiences, a very difficult decision was made to defer that part of the hearing to a time in early 2022 when the Royal Commission can resume in person hearings and travel in a safe way for the participants.

So the Royal Commission will commence the inquiry into family and domestic violence and abuse of women and girls with disability over the next two days.  You will examine the nature and extent of violence and abuse of women and girls with disability in family and domestic settings.  You will examine issues concerning the respect for sexual and reproductive rights of women and girls with disability; the nature and extent of services to support women and girls with disability who experience sexual violence, violence and abuse in family and domestic settings, including, where there are gaps in specific services to support people with disability.

You will also examine the gaps in the legal protection for women and girls with disability who experience violence and abuse in relationships, family and domestic settings.  These themes will continue to be examined when the Royal Commission resumes the in person part of this hearing in 2022.

But an online hearing of this kind has meant that there is one aspect of this hearing which will be different from previous hearings.  Tomorrow, as part of this hearing, there will be an aspect conducted in camera, or in private.  It will not be broadcast and it will be confined to the individuals participating in the hearing.  This is not  
intended to shy away from addressing the issues but to provide an opportunity for those participants to share their personal experiences with the Royal Commission in a trauma informed and culturally safe way.

The private aspect of the hearing will address the nature and extent of violence and abuse of people with disability who identify as members of the LBTIQA+ community, particularly their experience in family and domestic settings, and also to look at the role of advocates and the availability of culturally sensitive supports.

Before I start, I wish to provide a warning.  This hearing will include evidence that may be distressing to some people.  It will include accounts of violence, abuse, neglect and exploitation of people with disability, in particular, women and girls with disability and First Nations women and girls with disability.  If any part of the discussions raise any concerns for anyone, we have the relevant referral numbers:  Blue Knot Counselling and Referral Service, 1800 421 468; Lifeline 131 114; Beyond Blue 1300 224 636.  And for viewers who wish to seek support in relation to sexual violence and domestic and family violence, the contact number is 1800 RESPECT; that's 1800 737 732.  For First Nations viewers, you can also contact local Aboriginal Medical Services for social, emotional and wellbeing support.

Commissioners, violence and abuse of women and girls is preventable.  Prevention requires a recognition of the drivers of violence.  It also requires a commitment to change, to change the norms, practices and structures that allow for gender inequality.  It requires a change in society's attitudes and the norms that shape the context in which violence occurs.

As the Chair said this morning, there has been a lot of research and we know a lot about attitudes towards violence.  The National Community Attitudes Towards Violence Against Women Survey provides information about the knowledge and attitudes towards violence against women, gender roles and responses to violence.  The survey has been conducted at various times since 2009.  There is currently a survey under way and the results should be available in 2022.

The most recent survey results are from 2017.  That survey records that most Australians have an accurate knowledge of violence against women and most Australians recognise that violence can occur in different forms and involve more than just physical or sexual violence.  But while most Australians' knowledge of violence against women has increased, the survey identifies that there is still areas for improvement.  For example, one in three Australians, 34 per cent, did not know that women are more likely to be sexually assaulted by a person they know rather than a stranger; and two in five Australians did not know where to access help for a domestic violence issue.

The survey records that, overall, Australians rejected attitudes supportive of violence against women, but it also noted that there remains some attitudes of concern.  One in three, 34 per cent, of Australians, believe that women who do not leave abusive  
partners are partly responsible for the violence continuing.  Two in five, that's 42 per cent, of Australians agreed it was common for sexual assault allegations to be used in a way of getting back at men.  And one in five, 21 per cent, of Australians believe that domestic violence is a normal reaction to stress and that sometimes women can make a man so angry that he hits her without meaning to.

Commissioners, the experience of women and girls with disability who have experienced violence and abuse in family and domestic settings has been the subject of many submissions made to the Royal Commission to date.  I want to cover some of what you have heard in the submissions made to the Royal Commission.

First is the issue of family and domestic violence.  Women with disability have told the Royal Commission that they have experienced severe physical and sexual abuse as well as financial abuse at the hands of a spouse.  Women and girls have documented their experiences of coercive control by families, parents, guardians, including guardians who socially and geographically isolate and financially exploit women in their care.

Women and girls have told the Royal Commission about the ongoing and disabling impact of Post Traumatic Stress Disorder and related psychosocial disabilities that are a direct result of the experiences of family violence.  Commissioners, in your report for Public Hearing 5 concerning the experiences of people with disability during COVID in 2020, you noted the evidence that women with disability were more likely than other women to have experienced the onset or escalation of domestic violence during the initial stages of the COVID 19 pandemic and lockdowns.

Ms Nicole Lee told you that the COVID 19 pandemic increased the risks for people with disability experiencing family violence for a number of reasons.  This included the increased likelihood of violent partners working at home, the heightened stress levels affecting households as a result of the health and economic impacts of the pandemic and the significant reduction of opportunities to access help and assistance through the interactions of people outside the home.

I will turn now to group homes.  Commissioners, in your report for Public Hearing 3 concerning the experiences of people living with disability in group homes, you heard about Yooralla's response to an incidence of sexual violence and abuse of three women and one man, all who lived with disability and who lived in a group home operated by Yooralla.  The offender was a support worker.  He was convicted of 12 offences and sentenced to 18 years imprisonment with a non parole period of 15 years.

And, Commissioners, you will recall the evidence about the steps taken by Yooralla following the disclosure of these sexual crimes.  The incidents are not isolated to Yooralla.  The experiences of women and girls with disability living in group homes has been addressed in a number of submissions.  Women living in these segregated settings have told you that they have entered into relationships with men outside their  
group homes and at times these relationships have become abusive and, in one case, ended in a violent sexual assault.

Women with disability have experienced physical, emotional, psychological and sexual abuse from staff and other residents in group homes.  Some women with disability have been labelled as troublemakers or as aggressive when they've sought to complain about the abuse.

In one submission, a woman with disability told you that she was assaulted by a fellow resident but left with no choice but to continue living with the perpetrator when the managers of the group home did not believe her and refused to take any action.  The submissions include accounts of ongoing physical violence experienced by women with disability from other residents in group homes and of the police not pursuing charges, particularly where a victim of violence and abuse is described as "non verbal".

The Royal Commission has heard about the double standards that exist where women with disability are expected to tolerate a level of violence in their own homes at higher rates than another Australian woman would tolerate.  With respect to sexual violence, women with disability have told the Royal Commission that they have been sexually assaulted by their colleagues or team mates and that employers and organisations with a duty of care have failed to take appropriate action in response.

Mothers have told the Royal Commission about their daughters being physically and sexually assaulted in respite care by other residents and staff members.  Some of the submissions address the particular vulnerabilities to sexual abuse of neurodiverse women and girls who may not understand protective behaviours, including having a vulnerability to predatory behaviour online.

People with disability have told the Royal Commission about the lifelong impacts of child sexual abuse and sexual assault on women with disability and how trauma and Post Traumatic Stress Disorder can both exacerbate existing psychosocial disabilities and cause psychosocial disabilities.  Girls with disability have been sexually assaulted at primary school and at special schools.  A common theme is that girls with disability are not being believed and appropriate investigation processes not followed.

Women with disability speak about the trauma that they live with in their adult lives as a result of these experiences.  Women and girls have experienced sexual violence in the form of physical harassment and verbal abuse in public spaces.  Women have been filmed and their images have been used and abused online.

The submissions include accounts of historical sexual, physical and emotional abuse against women and girls with disability, including young women in child welfare institutions and, again, the lifelong impacts on them.  The removal of children is also a theme in the submissions.  Women with disability have described the impacts on their lives of being removed from their parents as children and placed in foster care,  
of experiencing violence at the hands of foster parents and again, of not being believed.

They also describe the lifelong impact of trauma.  The submissions speak to the intergenerational nature of child removal, where girls with disability who were removed from their families are later faced either with the threat, or the reality of having their own children removed when they become mothers.

Children of women with disability have been removed when their mothers have experienced domestic violence.  Mothers with intellectual disability have told us about the barriers they have encountered, even in understanding the paperwork in relation to child custody proceedings.  Social workers have told the Royal Commission about the lack of social and legal supports for parents with intellectual disability.

Parents with disability have told the Royal Commission about the lack of support services.  A woman with disability described becoming pregnant and then giving up her baby for adoption, only to be told by her doctor that a later request for birth control could only be approved by her parents.  First Nations women have told the Royal Commission about the challenges of obtaining diagnoses of psychosocial, learning and intellectual disabilities.  They have told the Royal Commission about a lack of culturally appropriate disability support services for First Nations women and girls with disability.

There are challenges experienced by First Nations mothers with disability in accessing appropriate support and communication options from government departments.  Commissioners, you've also heard about police responses.Women with disability have told the Royal Commission about their lack of trust in police following negative interactions when reporting or attempting to report sexual assault or domestic violence.

Women have told us also that they have had occasions of good experiences when reporting assaults to the police and where police have been supportive and assisted women with recommendations about how to stay safe.  You've also heard about the impact of court processes and the justice system.  You will certainly hear more about this when you hear from the women with lived experience next year.  Women with disability have described court processes as lacking in accessibility.  Women with intellectual disability have told us about the easy read versions of paperwork not being available when they've applied for domestic violence orders.

Chair, as you've mentioned, the issue of data is an important issue for us to better understand the drivers and causes of family and domestic violence.  Numerous reports have highlighted the need for better data collection and to document the experiences of women and girls with disability in Australia.  The Royal Commission has published two relevant reports which are available on the Royal Commission's website.

 
One is a research report on the nature and extent of violence, abuse, neglect and exploitation against people with disability in Australia, prepared for the Royal Commission by the Centre of Research Excellence in Disability and Health, published in March this year.  And there is, as the Chair has mentioned, a report prepared by the Australian Institute of Criminology examining the experiences of domestic violence among women with restrictive long term health conditions.  And that, too, is available on the Royal Commission's website.

In the Royal Commission, we have done our best to review all available data sources and the submissions that I've outlined just now reflect the available data.  Women with disability make up around 20 per cent of the total Australian population but they are nearly half of all domestic violence victims survivors.  The most common perpetrator of violence against women with disability is a former partner and that the victims are most often know the perpetrator.

Half of the women with psychosocial or cognitive impairment have experienced sexual violence in the course of their lifetime.  89 per cent of women with disability aged 15 years or over have experienced sexual harassment in any setting at some point in their lifetime, compared with 85 per cent of women without disability.  First Nations women are 34 times more likely than non Indigenous women to be hospitalised due to family and domestic violence.

The data on girls with disability is also limited.  What data is available tells us that girls with disability are more likely to experience abuse before the age of 15 than boys; and almost one in four girls with disability reported experiencing abuse compared to one in six boys.  Sexual abuse was more common than physical abuse for girls with disability and the reverse was true for boys.

For girls who experienced sexual abuse, the perpetrator was most commonly a male relative or in law, a family friend or acquaintance or a neighbour.  And in most cases, the abuse occurred more than once.  KPMG in a report looking at the cost of violence against women with disability said that the economic cost in 2016 was around $1.7 million.

COVID has had a significant impact.  Women with disability were at a significantly higher risk of the onset of the escalation of violence during the first three months of the COVID pandemic compared to other women.  8.6 per cent of women with disability said that they had experienced choking and strangulation by a partner during the first three months of the COVID pandemic.

The lack of data helps to make these women invisible.  So while little is known about the rates of violence, abuse, neglect and exploitation of women and girls with disability, sometimes even less is known about the groups which have additional attributes, older women and the experience of women in the LBTIQA+ community.  As I said earlier, prevention of violence and abuse of girls and women with disability requires a recognition of the drivers of violence.

 
There has been much research and discussion in Australia about this issue.  We're not going to reinvent the wheel so we want to build upon the existing research.  But we want to examine the particular experiences of women and girls with disability, including women and girls who identify as First Nations, from culturally and linguistically diverse backgrounds and from the LBTIQA+ community, together with older women.

We will make little progress until we recognise ableism and the intersecting forms of inequality and discrimination that are the underlying drivers of violence and abuse of women and girls with disability.  We have to examine ableism and these intersecting forms of inequality and discrimination that operate throughout the Australian legal system, in policy and practice frameworks but, most importantly, through community attitudes and to understand how these matters underpin violence, neglect, abuse and exploitation.

The former Special Rapporteur on disabilities has said this:  Ableist ways of thinking consider the disability experience as a misfortune that leads to suffering and disadvantage and this invariably devalues human life.  We need to address the conscious and implicit biases and assumptions about women and girls with disability.  For example, how are women and girls with disability represented in the media if they're represented at all.  How do those representations reinforce the idea that women with disability are weak, vulnerable and undeserving of sexual and intimate relations?

For example, ableism allows us to think of women and girls with disability as infants and perceive them as asexual.  In this hearing, we will start this morning with a panel to address these issues.  I've called it the difficult and confronting conversations that need to be had.  We will address the gaps in services for women and girls with disability who experience violence and abuse and our first panel will involve Jen Hargrave, the Senior Policy Officer of Women with Disabilities Victoria; Thelma Schwartz, the Principal Legal Officer with Queensland Indigenous Family Violence Legal Service; and Associate Professor Patsie Frawley, now at the University of Waikato in New Zealand.  This panel will also address the drivers of violence in family and domestic settings, the adequacy of crisis services, access for women and girls with disability to mainstream domestic and family violence services and sexual assault services.

We will examine building the disability expertise in domestic and family violence and the sexual assault sector and will look at access to quality information on sex and relationships for women and girls with disability.

Our second panel will then turn to the experience of those working on the front line.  Maria Woods, who will be speaking in a personal capacity, will be joined by Cathy Want, the Manager of Rosie's Place, and Kathryn Fordyce, the Chief Executive Officer of Laurel House.  In this panel, we will address the barriers for women with disability who experience sexual or family violence to seek support or leave the situation.  We will examine whether services are accessible for women and girls with  
disability.  We will touch on interactions with the police and the justice system.  We will look at the roles and responsibilities of service providers, and we will look at support for women and girls with disability in sexual and intimate personal relationships.

The final session will turn to the gaps in the legal profession.  I think I've heard some women with disability say, "We're not looking for a legal solution, we just want the violence to stop."  However, we know that people with disability may experience a broader range of relationships in their homes and domestic setting than people without disability.  These relationships include support workers undertaking various kinds of support, including intimate personal care, unpaid carers such as friends and volunteers, co residents in supported accommodation, health staff, if they live in larger residential settings, and the relationships with all of these people may form part of the everyday domestic environment for some people with disability.

We have heard that a failure to recognise at law the range of settings and relationships in which people with disability may experience domestic and family violence may impact on their ability to access legal and other protections.  Limits on the way in which family and domestic violence law apply can also have an impact on the lack of protection.

But none of this is new.  We know all of this.  In 2015, a Senate report on violence, abuse and neglect against people with disability in institutional and residential settings noted that the existing domestic violence legislation in most states and territories, except New South Wales, does not recognise residential facilities for people with disability as places where domestic violence may occur.

And the Senate Committee made recommendations in relation to these issues being addressed via the National Plan to Reduce Violence against Women and their Children.

Ms Ryan will provide you, Commissioners, with an overview of the disparate and inconsistent Australian laws concerning family and domestic violence for women and girls with disability by stepping into the shoes of someone with disability and asking how those laws may protect her.

You will hear evidence from Dr Jacoba Brasch QC.  Dr Brasch is the President of the Law Council of Australia and a practising barrister with experience in the areas of family law and she will address the legal gaps.

Tomorrow morning you will hear from Ms Carolyn Frohmader, the Executive Director of Women With Disabilities Australia, and Dr Linda Steele.  Dr Steele is a Senior Lecturer in Law at the School of Law at the University of Technology Sydney.

They will tell you about how women and girls with disability are denied their sexual and reproductive rights.  They will examine the nature and degree to which  
interference in sexual and reproductive lives of women and girls with disability occurs in Australia, including with respect to contraception, menstrual suppression, sterilisation, abortion, sexual expression and intimate relationships, together with parenting, sexual and reproductive healthcare and the data in relation to these issues.

They will examine the nature and degree of sexual exploitation that is occurring to women and girls with disability, including in their family and domestic settings, the risk of violence and abuse against women and girls in segregated settings and the reasons why women and girls with disability are denied their sexual and reproductive rights.

Their evidence will emphasise the importance of understanding violence and abuse of women and girls with disability from a human rights perspective.  Commissioners, as you are aware, Australia has a number of international obligations under the Convention on the Rights of Persons with Disabilities but also the Convention on the Elimination of All Forms of Discrimination Against Women.

Perhaps it's important to note that very recently, the UN Human Rights Council passed a resolution on 13 July this year.  The resolution concerns accelerating efforts to eliminate all forms of violence against women and girls, preventing and responding to all forms of violence against women and girls with disabilities.

Amongst other things, the UN Human Rights Council has called upon nation states to take immediate and effective action to respond to all forms of violence against women and girls.  And this includes holding perpetrators to account, adopting and strengthening local laws, ensuring access to justice and accountability mechanisms and effective remedies and providing victims and survivors with relevant supports that avoid re victimisation and re traumaisation.  When we complete that session, the public part of the hearing will come to an end and we will then resume into a closed session.

Commissioners, before I conclude, you may recall Ms Jane Rosengrave gave evidence at Public Hearing 3 in December 2019.  Ms Rosengrave lives with an intellectual disability and she is an Indigenous woman from the Yorta Yorta tribe.  She told you about her life and how she is now a self advocate.  She told you about her experiences as a young woman being sexually abused by a bus driver and she also described abuse in her personal relationships.

You will recall when she gave evidence in December 2019 that she told you she was now living in her own home and she felt as free as a bird.  I want to just remind you of what she said about matters relevant to the present hearing and we will just play a very short clip.

Clip played:
MS ROSENGRAVE:  I hope that this Royal Commission can help people with a disability to have choice and control over their     over where     and they     who they live with to get the disability     get the support that they    they  need to do this.   
People with disability should have a choice about what they said     spend their money on, what holidays they go on, which they should have a choice about that and their money as well, not to be treated like those olden days as well.  And they also deserve choice about their sexual relationships and their     have their ability to know about     to know to speak up about their rights.  People with a disability should have privacy and ability to have their own room decorated by them with support.  So they should have their own room, they should have their own colours in the room, what they want, and if they've got a boyfriend, they are allowed to see their boyfriend and all this.  Or if they are the opposite, you know, and all this, that they should feel free.

MS EASTMAN:  An attempt of feeling free, which Ms Rosengrave described you to you back in December 2019, is core to fundamental rights of dignity and recognition of equality and respect.  Commissioners, this hearing will be the start of an ongoing discussion about the rights of women and girls with disability to be free from violence and abuse in their homes and in their relationships.

In the second part of the hearing, which we hope to hold early next year, you will hear directly from women with disability about their personal experiences of sexual, family and domestic violence; the deprivation of their rights as women; the stripping of their identities; and their experience of discrimination.

But it will also be an opportunity to hear from the Australian Government, and some of the state and territory governments perhaps, about the measures taken to prevent violence and abuse of women and girls with disability.  In that respect, we note at the recent National Summit on Women's Safety held on 6 and 7 September this year the final statement of delegates recorded that the National Federation Reform Council Women's Safety Taskforce will be made up of commonwealth, state and territory women's safety ministers and it will have responsibility for developing the next National Action Plan.

The delegates' statement said that the next National Action Plan will be the primary mechanism to guide investment by all governments to end gender based violence.  The Royal Commission will closely follow the development of the National Plan to watch whether the rights of women and girls with disability are addressed, including the extent to which women and girls with disability are involved in that process, not just an afterthought, not just an add on but centrally involved in the process.

Further, the Royal Commission notes that the 2021 2022 Federal Budget Statement recognised violence, specifically violence facing women and girls with disability, and made two important commitments.  The first was funding a new National Women's Alliance, specifically for women with disability.  This Alliance will provide advice to policy makers on the issues affecting women living with disability and inform the development of policy solutions.

It is expected that the Alliance will start its work in June this year.  And, secondly, the government committed $9.3 million over three years to develop resources that aim to reduce violence against women and girls with disability and improve service  
responses when violence occurs.  The Royal Commission will be interested to understand the impact of these measures and it may explore them in further detail at future hearings.

Commissioners, may I conclude by reminding everyone following this proceeding about the protection for witnesses in the Royal Commissions Act.  We have drawn attention to section 6M of the Act in all our hearings and may I remind those following the proceedings that any person who uses, causes or inflicts any violence, punishment, damage, loss or disadvantage to any person on account of the person having appeared as a witness before the Royal Commission or given evidence before the Royal Commission or producing documents to the Royal Commission commits an indictable offence.  The maximum penalty for committing such an offence is imprisonment.

So may I repeat what I said at the beginning of this hearing, that there will be discussion about accounts of violence, abuse, neglect and exploitation of people with disability, in particular, women and girls with disability and First Nations women and girls with disability.  That material may be distressing to some people and we'll just put up on the screen again the relevant counselling and referral numbers.  As the Commission pleases.

CHAIR:  Thank you, Ms Eastman.  Just before we adjourn for a short break, I understand that the State of Victoria has a representative here so I will take the appearance for the State of Victoria.  I think it's Ms Bedford.  Do we have Ms Bedford present?

MS BEDFORD:  Commissioner, my name is Rebecca Bedford and I appear for the State of Victoria.

CHAIR:  Thank you very much, Ms Bedford.  We will adjourn now and resume at 11.15 am Sydney time.  Thank you.


ADJOURNED    [10.56 AM]


RESUMED    [11.15 AM]


CHAIR:  Yes, Ms Eastman.

MS EASTMAN:  Thank you.  Commissioners, on our first panel this morning, I would like to introduce Jen Hargrave, Thelma Schwartz and Patsie Frawley.  At the risk of being somewhat informal, I'm going to adopt using first names throughout this hearing, which I understand to be the preference of everybody participating.  I'm sure if it's not, they will tell me.

 
CHAIR:  I understand that the oath or affirmation has already been taken. Let me thank you for coming to the Royal Commission to give evidence.  We appreciate your attendance and I will now ask Ms Eastman to ask you some questions.


MS JEN HARGRAVE


ASSOCIATE PROFESSOR PATSIE FRAWLEY


MS THELMA SCHWARTZ


EXAMINATION-IN-CHIEF BY MS EASTMAN


MS EASTMAN:  May I start, Jen, with you.  You are the Senior Policy Officer with Women with Disabilities Victoria and that's a role that you've held since 2017.  What can you tell the Royal Commission about the nature of your work as the Senior Policy Officer?

MS HARGRAVE:  Thank you.  Yes, that's right.  For a little bit of context, I guess, to describe where I'm working, it's a disabled person's organisation.  So we have a staff and a board and a membership made up of women with disabilities and non binary folk and people who identify as women leading the organisation.  So all our work is done by women with disabilities.  Our work     one of the first key parts of our work in that is to connect women with disabilities with each other to build up a sense of community and belonging, knowledge and strength and while not all people will identify with this language, we could talk about it as building up a sense of pride as women with disabilities and not feeling you have to apologise for our disabilities.

Another key part of our work is developing training and informing workers in key sectors such as violence prevention and violence response about the access requirements of women with disabilities.  And another part of our work is around participating in research and consultations and sitting on committees and facilitating for our members to do that as well.  Through those mechanisms, we have input into consultations and inquiries such as this one.  So, yes, supporting research and trying to get key systemic changes made to improve the recognition and rights of women with disabilities.

MS EASTMAN:  Thank you.  And for the purpose of this hearing, we've included some of the submissions that you've made to this Royal Commission but also I think some of the other work and we might talk about that shortly.  So, Thelma, can I turn to you.  Welcome back.  You appeared as a witness at Public Hearing 8 and we are very pleased that you are prepared to return and you are the Principal Legal Officer  
with the Queensland Indigenous Family Violence Legal Service.  Can I ask you just to tell the Commissioners a little about your work.  What would you like to tell us?

MS SCHWARTZ:  Thank you, Kate.  Yes, I have appeared before the Commission prior to this.  The Queensland Indigenous Family Violence Legal Service is an Aboriginal community controlled legal service organisation.  We have offices across Queensland.  I believe, originally, when I spoke to the Commission in 2020, we had five offices.  We've now included two additional offices servicing Bamaga in the Northern Peninsula Area as well as Thursday Island.  Our service provision is for Aboriginal and Torres Strait Islander men, women and children who are victim- survivors of domestic and family violence and/or sexual assault.  We provide free legal assistance and legal representation and non legal supports to those people who need to access the legal system in our practice areas of family law, domestic and family violence, child protection, sexual assault, and in Queensland, Victims Assistance Queensland, VAQ, applications or in other jurisdictions, I believe the understanding would be victim compensation or injuries compensation.

We are a holistic service provider, so within our practice whilst we have at the core of it a legal practice, we approach the provision of service holistically, so we address legal issues but we understand that when our clients present to us, what has driven them into contact with the legal system are their pressing non legal needs.

So that may be a victim of violence who has escaped from that situation, fleeing the home with her children – and it is gendered – in tow, with nothing more than the clothes on her back and children with her.  So what we need to do and what we do prioritise is focusing on addressing her core non legal needs, getting her income, getting her housing, ensuring that her children can return to school safely, dealing with any child safety concerns which have arisen because there has been a history of violence within that family and then addressing her legal needs in our court system by way of the application for a domestic and family violence protection order, as it is known here in Queensland.  And then supporting her through the integrated case management model that we have within our practice, to gain a sense of self-efficacy, self-determination and independence so that she can actually live free from violence and live in an environment where her children are then raised free from violence, thereby breaking that cycle that we see repeated.

That, in essence, is our practice.  We are a very big State and practise in all areas other than our southwest corridor, which is serviced by another family violence prevention legal service, which is the Aboriginal Family Legal Service Southern Queensland, which provides services in that southwest region.  So I'm hoping that's brought it up to speed from my last inclusion.  So we've gone from five offices now to seven.  So really stretching and getting into some of the most remote parts of the country.  We service right up to the international border now with Papua New Guinea.

MS EASTMAN:  We are going to talk during this session on the adequacy of services.  I think you've spoken about this as part of your involvement with the  
National Safety Summit which occurred in September, so I will come and ask you some questions about that shortly.

Patsie, again welcome back.  You appeared at Public Hearing 3 for the Royal Commission, when the Royal Commission looked at the experience of people with disability living in group homes.  At that time, you were working, I think, at Deakin, the university there, and you are now in New Zealand.  Would you like to introduce yourself to the Royal Commissioners and just perhaps give us an update on some of the recent research that you've been doing.

ASSOC PROF FRAWLEY:  Sure.  Thank you, Kate.  Hello, all.  Yes, since I last appeared before the Commission, I have moved across the ditch.  I've moved to     relocated to New Zealand to take up a position at the University of Waikato in Kirikiriroa, Hamilton, New Zealand, Aotearoa.  I am an Associate Professor of Disability Inclusion Studies here at the university, in a similar role to what I was at Deakin University.  I work in Te Kura Toi Tangata, which is the division of education here, and I lead a postgraduate program in disability inclusion studies, which essentially means a Masters program and some other postgraduate programs.  And I currently supervise a number of Masters and PhD students across a range of research areas, picked up some new areas here, and still supervising some students from Australia.

I guess, to update, since I have moved here, I'm still co lead of Sexual LivHave es and Respectful Relationships, which is one of the key programs that I might refer to today, at Deakin University with my colleagues from Deakin.  I'm an Adjunct at the Donald Beasley Institute in Dunedin, which is a disability research institute.  I'm now an associate fellow of the Sexual Harms and Medical Encounters research group called SHaME at Birkbeck, University of London.  I'm currently doing some research still in Australia with particularly two projects, one is with     co led by Gippsland Centre Against Sexual Assault and New Wave self-advocacy group in Gippsland, which is a project looking at expanding their roles and influence around violence prevention of women, in particular with disabilities, in that region.

And I'm also involved in a research project funded by the Endeavour Foundation to look at extending, really, and co developing sexuality and relationship resources with young people with intellectual disabilities and that's with colleagues from Deakin as well.  I'm undertaking some research here in New Zealand with colleagues from the Donald Beasley Institute that will come before the Royal Inquiry into abuse in state care in this country.  We are co developing stories with people with learning disabilities, in Australia intellectual disabilities, who have experienced violence and abuse in state care.  It's in a particular timeframe.  So I guess I'm continuing both work in Australia but also picking up work here in New Zealand looking at violence and abuse.

I've been part of an intergovernmental project here called the Joint Venture Business Unit, which is looking at how to develop more robust prevention and responses to violence and abuse across a range of areas across the country and I've been involved  
in the disability     they call them --- consultations, working alongside disabled people's organisations and a government unit called the Joint Venture Business Unit.  So, that's me.  Thanks for having me back and I hope to able to contribute something of use today.

MS EASTMAN:  Thank you, all.  When we first approached the three of you to be a part of this hearing, we thought we would talk about gaps in services, but all three of you said you can't even get to the conversation about gaps in services unless we are prepared to have a difficult conversation about attitudes, inequality and ableism.  So we're going to start with that topic.  As we know, women with disability are twice as likely to experience sexual violence over a one year period compared to women without disability.  But we also know that violence against women and girls with disability should be preventable and the prevention requires the recognition of the drivers and some of those drivers are inequality and ableism.

I'm going to open this up by asking you all: why do we need to start with inequality and ableism to be able to have a productive discussion about gaps in services? Jen, can I start with you, if you wish?  Tell us about ableism and what it means for women and girls with disability.

MS HARGRAVE:  Absolutely.  A good way of describing this might be to talk about a recent project that the School of Population and Health at Melbourne University has been running.  I've been co facilitating there with a group of women with disabilities talking about what they think needs to be done to make change and for all of the women with disabilities in that group, they strongly recognise that if they were born with disabilities, they had grown up combatting ableist attitudes and sexist attitudes and how these combine.

And so many women I've spoken to over the years have raised the need for us to start working with people around how they form attitudes as children and change those sexist and ableist attitudes.  And here in Victoria, we've got work going back 15 or more years led by Victoria Health and the Victorian Government around what multigenerational work needs to be done to make this change, to make a shift and then we've got the national agency, Our Watch, which has begun in that time, too, which is the national agency to address violence against women and their children.  They did huge literature reviews around what is associated with these attitudes and the structures that reinforce them, like the ways we organise our society and our services.

And they developed a national document about that called Change the Story and they've been partnering with Women With Disabilities Victoria and involving other key organisations, such as Women With Disabilities Australia, and running consultations with women and practitioners from all over the country around how we can better understand and share that understanding with key people around what we need to do to take action to change those ableist and sexist drivers of violence.

MS EASTMAN:  Patsie, can I turn to you.  This has been a core part of your work  
and the Commission has got, as part of its evidence, some of your research papers but also included in the material for this public hearing some of your research.  What do we need to know and understand about ableism and inequality?

ASSOC PROF FRAWLEY:  Thanks, Kate.  Thank you, Jen, leading on from you, to listen to the voices of women and girls with disabilities is where it always needs to start and we always need to be reminded about lived experiences and what they can tell us.  And I guess, you know, from a theoretical perspective, to really understand ableism does take us to some difficult conversations and    

MS EASTMAN:  Patsie, I'm going to apply the policy of protective interruption and that is that we have the Auslan interpreters, so there is no need to rush and I think it's a message for me to slow down as well.

ASSOC PROF FRAWLEY:  Thanks, Kate.  Sorry.  So I think when we go to talk about ableism, without giving a lecture on ableism, it does take us to some very difficult places and people who sort of started writing about ableism like, Fiona Kumari Campbell, make the strong point that it is actually a complete discounting of disability in ideas and structures and processes that make up society and citizenship.  So it's even stronger than discrimination, it's stronger than exclusion.  It's actually that disability is discounted.  It's not even really seen sometimes, and by not being seen, it's not engaged with or valued either.

I think it's one of the "isms", along with sexism, that sits at the heart of disability gender based violence.  What it can teach us most, I think, is that it is really embedded in society along with those other “isms”.  It's not a new “ism”, it has been around for a long time.  It's just that we've started to talk about it and put it in the centre of the way we understand the lived experiences of people with disabilities.

And alongside this discounting, of course, is that women with disabilities don't see themselves in valued roles, in roles in society where they can be valued and respected because they've been kept out of employment, education, because there has been a social system that has said if you are dependent and need supports, then, you know, you are actually other than the rest of society.

And I think particularly for women with complex, severe, profound disabilities, they need intersecting sort of oppressions experienced around other parts of their life.  What we actually have is an invisibility sometimes and that this is part of the social problem.  It's part of a social public health problem as much as anything else, and so I look to sort of find pictures of what that means.  And Gloria Krahn and colleagues from Oregon Health and Science University talk about a cascade of disparities.  That gives me a really good visual image of what we are talking about here.  There is this cascading devaluing, discounting that just picks up and grows with momentum to the point where when we hear about the abuse of a woman with a disability, we don't turn to the same sorts of answers around that or ways of describing and understanding it.  We go straight to ideas of problem, vulnerable, it's your difference that made this happen.
 

So I guess I just think that I'm glad that we have these conversations now and I'm particularly glad that this hearing today has started with an opportunity to think about ableism.

MS EASTMAN:  Well, Thelma, you see both racism and ableism come through the work that you do.  What is your experience for First Nations women and girls with disability?

MS SCHWARTZ:  Thank you.  I agree and support what my colleagues on the panel have generally said with respect to Aboriginal and Torres Strait Islander women and girls, their experience particularly with disability is even more heightened.  They are at the intersection between race, gender and disability.  They also face, as I've spoken about in other forums, the other factor of being invisible due to the fact of their race.

They are one of the most marginalised groups in Australia and that, in itself, is quite confronting.  Having a starting point looking at inequality, because what is at the heart of this, for me, when I look at what underpins the Convention on the Rights of Peoples or  Persons with Disabilities, those underpinning foundations are respect.  There is a complete lack of respect, particularly when I look at Aboriginal and Torres Strait Islander women and girls' experience, a recognition of who they are, a recognition of their inherent worth and what they bring to society; their ability to fully and effectively participate in our society and a respect for their difference.

And I see that across the nature of the work I do.  And what I see in my practice – and I think this is consistent with what has been put together in that invaluable piece of work in Wiyi Yani U Thankgani's (Women's Voices): Securing Our Rights, Securing our Future Report of 2020 by the Aboriginal and Torres Strait Islander Social Justice Commissioner, June Oscar – is that my clients will come to me, they are more than happy to identify as a person of Aboriginal and/or Torres Strait Islander distinction, but when we go to discuss disability, that is not something that is easily disclosed, and we have to unpack that and why is there still that shame element.

And I think it comes back to that intersectionality, how compressed and compacted it is for this particular cohort of women and girls who are experiencing such systemic pressures and, in some instances, abuse.  I hope that has answered that particular question, Kate.

MS EASTMAN:  Well, this topic itself, I think, could absorb the whole day of our discussion, but why is it important to acknowledge this now before we just jump to the systems and processes and the policies?  Is it because we need to really re think how we examine and think about the policies and practices?

MS SCHWARTZ:  Absolutely.  I absolutely agree with that.  There needs to be a focus – and it's consistent for Aboriginal and Torres Strait Islander people – with what has now come out in the National Partnership Agreement in relation to Closing  
the Gap.  Those targets have been set and the fundamental inherent recognition that Aboriginal and Torres Strait Islander peoples should be involved in all decision-making impacting upon them.  Aboriginal and Torres Strait Islander peoples, their organisations should be involved in the design of programs that work best for them.  It is a recognition that, as Aboriginal and Torres Strait Islander people, we have the skills and knowledge and expertise to actually shape our destiny and our pathway.

And I think when you apply that to persons with disabilities, it is the same thing.  We are coming back to recognising that people with disabilities should be at the table.  They should have an active say in what occurs with them, what their pathways are.  They should have control over their destinies.  They should have control over their bodies.  You know, they should not be silenced, which I see way too often in my practice, and ignored or, you know, put in a corner and forgotten about.

This is, for me, really looking at this, when I pull things back and I look at what is the base through a human rights lens and respecting that and framing policy frameworks and decisions through that lens so that people's inherent dignity, individuality is respected and valued.

MS EASTMAN:  Jen, you are in the business of policy and often when we look at policies, it will be covering all women; and there is nothing wrong with that, is there?  But then there will be that extra paragraph, usually on page 9, which will have the heading "Women With Disabilities".  What is your experience in terms of the way in which women with disabilities are included in policy making and how is that relevant to the discussion that we need to have today?

MS HARGRAVE:  I think that's quite a correct observation.  We are often popped in one paragraph or one dot point or increasingly told that policies take an intersectional lens and then it should be trusted that this will include particular drivers around ableism.  So one of the things we still don't see happening is really constructive cross portfolio discussions around women's policy and disability policy and other relevant policies, such as some of those that Thelma has referred to, like Closing the Gap.

So bringing people together but also I think not just focusing on the outputs of the final document or the final strategy or program but also the methods in how we work.  So some of the things we've already been talking about around bringing people with lived experience in and resourcing them to be part of developing the products, but more than that, people in the public service and all the consultants that are part of this industry being put in a position where they need to come on a journey to learn and develop knowledge personally and also corporate knowledge so that we can feel like we're progressing.

Because I think if we're constantly putting women with disabilities in a position where they're educating everyone they come into contact with in their work around 101: what is disability access, what is a safe environment for someone talking about violence – all this knowledge to try and convey every time a new policy starts to get  
developed, we find ourselves in a wheel and we can't progress.

So developing some really good standards around how we do these processes to be compliant, for example, with the Disability Discrimination Act.  So we know, for example, that the Disability Discrimination Act doesn't have much power in itself but it is, really, a structure for all of us to have some shared understanding around what a reasonable adjustment is, so that people with disabilities can be equally involved in this work and what is discrimination and for governments doing this work and consultants to understand how to make each part of that process accessible from registration pages through to employment and HR policies, websites and so on.

And so again, like I was saying, not just to have the disability action plan but also for as many people as possible to be involved in developing that so that some learning and some cultural change happens.

MS EASTMAN:  Patsie, you have described ableism as “discounting”.  Is a sort of example of the discounting that in the development of policies, for example, you start with the core group, who may be able, white women, and you start the policy development around that cohort and then you circle out to pick up everybody else along the way.  Is that part of the discounting, that you don't actually start with women with disability at the centre and then you work out to the white, able bodied, educated well off women and they come at the end? If you flipped it around, would that be addressing ableism?

ASSOC PROF FRAWLEY:  I think it's a way.  It's a strategy, but Kate, coming back to what you started with, it's a difficult conversation and it's difficult because it's connected to ideas of, you know, absolutely segregating, of othering in such a way that, you know, it doesn't even appear     that people with disabilities, women with disabilities sometimes aren't even the add on.  And so, yes, making people with disabilities more central to this is really important.  But we also have to really come to ask ourselves: how ready is everyone for that?  How ready are you to recognise people with disabilities in your neighbourhood, in your schools, in your communities, in your workplaces as equal?

And again coming to, I think, a question which is the more difficult question again here, is that we're not just talking about people with disability homogenously here, and it's interesting the UN Convention includes Article 6 on women because there is a need to identify and shine a light on the same and different kind of levels of inequality that exist for women with disabilities.

So, you know, it's actually having to change, as Jen started with, the attitudes and values of our society.  And you only have to look to journalism, public opinion, things that politicians and other people say that roll off their tongue about people with disabilities that still says very strongly to me that we're not there yet and we've still got a long way to go.  So, yes, I think starting with people with disabilities is a way of working around that and certainly public opinion can change.  We've seen that through a range of things.
 

I think social media and people with disabilities putting themselves out there and saying "This is who I am" is really important.  But it's also about the coming together, as Jen said, of women with disabilities, for example, with the women's movement.  These things are about inclusion but they are also about value and they are also about recognition of equality, I think.  And I do think ableism is at the heart of, you know, hate crimes against people with disabilities.  It's at the heart of things like still accepting segregated schools, still accepting when we see reports about someone, you know, having experienced restrictive     they've written, given more words, restrictive practices and being abused and saying it was within a residential service, so it's different.  We give people excuses by always saying that able is different, as opposed to recognising that able may be different, that disabled is also     can be valued and should be valued.  I think there are many strategies and I think getting to the heart of the attitudes is the start, is the important one that we keep chipping away at, I suppose.

MS EASTMAN:  All right.  I want to turn now to the drivers of violence and abuse for women and girls with disability in family and domestic settings.  Jen, can I start with you.  You have looked at this issue in the context of your work and I want to ask you what have you identified as being particular features that identify the drivers with respect to women with disability?

MS HARGRAVE:  Thank you.  For a long time, our knowledge that we had was shared through women with disability sharing their experiences of the violence that they had experienced and it was often dismissed as just anecdotal, one off, that wouldn't happen now.  Since then, Women With Disabilities Australia, Women with Disabilities Victoria and others have done comprehensive interviews and literature reviews that give us a much more robust, accepted perspective around what occurs and some of those things include the isolation that we experience as women with disabilities.

And some of those social drivers that we were talking about earlier really create that.  It's not that we are born inherently vulnerable and isolated and that we can't fit in.  We have public transport systems that aren't accessible.  We have people on income support that leaves them below the poverty line.  As Patsie mentioned, we've got employment rates for people with disabilities way below the OECD average, way below, we are really lagging, and we combine that with what we know about women in employment and how underpaid we are, how much unpaid work we do.  All of this leads to us being isolated.

We are also easily discredited and for decades we've been hearing stories from women telling us how the perpetrator of the violence, whether it's a partner, a parent or a disability support worker, is seen as having so much more credibility than they themselves are, they are easily dismissed as being crazy, attention seeking.  And all of this allows the perpetrator to hide in plain sight, as we might say     so, he is helping her with her money, he is helping her with her medical appointments.

 
But that's just the tip of the iceberg, that gives you some idea.

MS EASTMAN:  So, Thelma, you see a lot of First Nations women in remote settings where access to services can be very difficult.  What, in your experience, are the drivers of violence and abuse for First Nations women with disability in family and domestic settings?

MS SCHWARTZ:  Thank you, Kate.  I think the starting point for this conversation really is acknowledging, with respect, that violence against Aboriginal and Torres Strait Islander women and their children is at a national crisis level.  And I say that, given  the research that is at hand, our women nationally are 32 times more likely to be hospitalised due to family violence, 10 times more likely to die due to assault and 45 times more likely to be victims of violence.

Now that, to me, is an aberration, with respect.  When I look at that national data, and it's consistent, I then look across to data sets that indicate to me that Aboriginal and Torres Strait Islander women are the highest growing prison population in Australia.  And when we look at the total population figures, that is just astronomical and astounding that drivers underneath this, when we are starting to pull this apart, with respect, go beyond just gender inequality.  They also need to     you need to recognise here and acknowledge the ongoing impacts of colonisation, racism and discrimination, intergenerational trauma, socioeconomic disadvantage and, you know, family violence in Aboriginal and Torres Strait Islander communities is often cited in a plethora of material as being cyclical and intergenerational.

There are some very powerful drivers underneath this and, you know, when I see it then through that lens of disability     QIFVLS, also, I should add is a provider for the Your Story Disability Legal Advisory Services which is supporting Aboriginal and Torres Strait Islander peoples with disability access this Royal Commission.  In that work that we have done, I have seen examples of people with disability, in this context of family violence, contact police or have others contact police on their behalf.

In the context of a female client who is deaf, police have attended.  Their first response, because her manner of communication obviously is non verbal and she will rely more on hand gestures, she was very heightened.  The perpetrator, who was male, was very calm.  So when police had arrived, because a call for assistance has been made on her behalf, they have, in their wisdom, assessed that she was actually the perpetrator of that violence, given that he was able to speak to police calmly.  They didn't then say or make available to her the access of an interpreter.  They have then laid criminal charges against her as well as then taking out a Police Protection Notice naming her as the respondent and him as the victim.

So what I see more often than not in my practice, especially with people with disability, is this issue of misidentification.  It happens at alarming rates.  It is absolutely unacceptable and it comes down to     and I know there is a lot of pressure on police when they are called out to incidents --- but it really comes down to  
moving away from this idea of incident based reporting and when you're getting there, actually focusing on investigating techniques     what do I need to do?  If someone else has contacted me and I then speak to someone and it's clear to me they actually need assistance, maybe I need to call someone who can, ie, make available that interpreter to assist this person actually access justice so I can actually get the full story.

Then when QIFVLS gets involved ---

MS EASTMAN:  I will jump in there because that is getting into the topic which we do need to discuss, which is the gaps in services, and that is a good example of the gaps in services, but just to tie off this topic of the drivers, Patsie, can I come to you, and stepping back as a researcher and looking at the work that you've done now over many years, what do you see are the key drivers of violence and abuse for women and girls in family and their home settings?

ASSOC PROF FRAWLEY:  Thanks, Kate.  Well, I think we go to what is the drivers for violence and abuse against women generally and, you know, a feminist perspective tells us it's power and control.  This is an important thing for us all to remember, that power and control is at the centre of violence and abuse against women and against girls in our society.  This is not different for women with disabilities.  But perhaps what's different is how many people consider they have a rightful position of power and control over women and girls with disabilities in their homes and in their families and beyond there.

But if we're talking about families and homes, of course, recognising that many women with disabilities don't live in family environments, they live in services, so I think an important thing is where family violence legislation actually acknowledge that in Victoria, that residential services, for example, could be seen as a family home.

So I just come back to that and our research, I guess over many years, as you say, where I've spent most of that time talking to and, as Jen said, doing research with women with disabilities to both tell their stories and to unpack what's happening in those stories for us, they are ongoing     they are always stories of somebody else feeling like and often being put in a position of having that power and control over their care, over their decision making, over decisions about how they live their life, mediating their lives, whether you go here or there, whether you stay home, what you wear, what you don't, what your jobs are in that home, if you have those jobs.

I was just revisiting some research yesterday that we did with Kelley Johnson and Lynne Hillier and Lyn Harrison many years ago called Living Safer Sexual Lives and I read the story of Gina (not her real name), and I was thinking about this question when I did that.  Gina lived in a family where there was intergenerational violence and abuse.  She told the story within a family that had many disadvantages, she was the scapegoat.  She was the one who was always bashed, in her words.  She was the one who was always used as the game in abusive relationships in the house  
with fathers and stepfathers and brothers and others, and she was the one who was really put forward as the problem again.

And she couldn't make decisions.  She couldn't decide for herself where she went to school.  She couldn't decide for herself where she lived because others were given the power to make those decisions.  Those people in her life who were actually perpetrators were given that power over her.

Put pretty simply, it is power and control.  What is it for women with disabilities?  It's because there are many, many more people who are given power and control, both formally and informally, and that we don't challenge those questions and those decisions, I think would be the overarching story and the story that I hear over and over throughout my research with women with disabilities.

MS EASTMAN:  The Royal Commission will need to look at questions around prevention of violence and abuse for women and girls in domestic and family settings and also experience of sexual assault, but another aspect that the Royal Commission needs to look to is the response when violence occurs, and that is what services and the way in which remedies may be available to women.

So I want to turn to the question of services and the gaps that specifically arise for women and girls with disability.  So, Patsie, you have undertaken some research and we've included for the Commissioners a copy of the "Whatever It Takes": Access for women with disabilities to domestic and family violence services in August 2017.  Commissioners, you've got this in your bundle behind tab 5.  Patsie, I don't need to go sort of through the report, and the Commissioners will have read the report in preparation for the hearing today, but what did you find as part of that research as to     at an overarching level, the gaps in services?  We've just lost your sound, Patsie.

ASSOC PROF FRAWLEY:  Sorry.  Just to acknowledge in that research my research colleagues, Sally Robinson, Sue Dyson, co researchers, many women with disabilities involved as participants in that research and the five domestic family violence services that participated in that research as well.  Also to say that that research was funded by Australia's National Research Organisation for Women's Safety, which was a bit of a breakthrough for I think everyone at the time when they came on the scene and were able to start to fund some research around women's safety and violence reaching into the corners like the one that we were looking at, which is women with disabilities.

In that research, we surveyed around about 140 domestic family violence, sexual violence workers across Australia and then we did a focused case study on five.  We undertook that research with women with disabilities as co researchers.  We went to the services, we spent time with them over a couple of years and we helped them sort of articulate what they were, who they were and how they wanted to improve access for women with disabilities.

 
I think one of the key findings that came from that in relation to question around gaps was that, essentially, these services are struggling anyway.  They are struggling to provide the services to everybody.  As Thelma was talking about before, the increasing rates and prevalence of abuse, the increase in complexities around abuse and violence for all women and children and the question of funding.

So I won't go to that because I think that is essentially a given.  One of the things that came from those services was that understanding disability, to start with, as Thelma said, a lot of women don't want to disclose disability when they come into a service because they've experienced abuse.  The flipside of that is, you know, are the domestic family violence services, they are not in a position to diagnose disability and why should they.

So that first point of how do we actually acknowledge disability when, in actual fact, within a violence and abuse context, disability is pervasive.  Those services would tell us that they would probably see every woman in some way being very disabled by this experience of violence and abuse, and that in relation to that I suppose then what follows is: how do you then work with women for whom their lives are complex, in a complex mix of services and supports, or a lack thereof, around their disability?

So one of the things that we found, and I think it was almost a bit of an unexpected finding, was that those services found it really difficult to find other services that could work with them within the same sort of framework and context that they did around trauma informed care and women centred practice.  Particularly they found that difficult from disability services.

So, in short, what that was about was that to be able to wrap services around a woman with disability and, as Thelma said, often children as well, who have come to domestic family violence services, they need to be able to rely on other services to support them with that.  If you can't find that service, and particularly if we think about, you know, what we have learnt a lot about disability services over the years and one of those things that we know is there is a protective regime, there is, I guess, a deficit model around disability services that see what's wrong with a woman, as opposed to what she can do.  They may well have been involved in restricting that woman's choices over time and now they are being asked to sort of put the woman at the centre, and I'm not saying all disability services but, you know, shift their thinking to this woman not being a vulnerable victim but being someone who can be the author and arbiter of her own recovery and safety.

The other area, I guess, is the question of what does access mean and what does accessible service mean.  We did a lot of thinking in that report and in that research about that.  I guess, just to give you a couple of short lines around that, one is from one of our co researchers with a disability who came up with the wonderful slogan of "One size does not fit all" and went on to develop a poster and a T shirt and many other things to translate that information to domestic violence services.

 
The other kind of big line that comes out of that research for me is where women would say, “I don't see myself there, it's not a place anyone has told me is for me, it's not a place that women with disabilities are evident within, I can't understand anything when I get there, I can't read the brochures, I need more time, I can't get there because of transport or it will cost me to get there”.

So we used a framework from the public health sort of framework umbrella, Levesque and others, that talked about accessibility having a number of components, which is approachability, availability, affordability, appropriateness and acceptability.  And we really mined that with women with disabilities to then articulate what that would look like for them if a domestic and family violence service had all those components.

Coming back to what women said, they said, "It would be usable by me.  They wouldn't be trying to apply one size fits all and, really importantly in all of that, is we would see ourselves there".  And, again, it was potentially a bit of an unexpected finding that it was saying women with disabilities have to be present in these services beyond being the service user.  They need to be maybe on the boards.  They need to be present in the information and resources that are being put forward around these services.  They need to be shaping those services and, as Jen said, co developing those services and resources that are used in services.

And they need to, I think, have some wins around the support that they get.  And I think about a quote from one woman who told us how fantastic it was, this service.  Sadly for that woman, she was what was called an ‘established family violence service user’, so she'd used this service many times.  She said to us, "The woman who worked with her at family violence was great, she took me to appointments, made sure I was safe in the house, spoke with my estate agents, followed up to make sure everything went well, does that all the time.  She is great.  Everything they've done is top notch."  Now, what says is it worked.

Sadly, maybe it worked because this woman was using this service so often.  But I think it tells another story, too, which is about services being, I guess, more holistic around what they do.  Now, I know that the domestic and family violence services do the very best they can and that the other thing that we found is if you want good domestic and family violence and sexual assault services, go to the services that are there.  The people working there are skilled, they are very well, I guess     they're trained to understand trauma informed care, et cetera, and all we need to do really is add in those other aspects where you can have flexibility, more time.  They can find other services that can wrap around a woman that are working more consistently with them.

And, importantly, as I said, just to reinforce, women with disability see themselves as a group of people who can use these services.

MS EASTMAN:  Jen, can I continue on that topic and the matters Patsie has raised.  In Victoria, there has been a Royal Commission on family violence and the Chair  
mentioned the recommendations made from the Royal Commission.  If you are able to comment, what has been your experience, following the Victorian Royal Commission, in terms of those questions of access to services that Patsie has touched on?

MS HARGRAVE:  I will be reinforcing a lot of the things that Patsie said.  Every day I see workers in the family violence and sexual assault sectors working their absolute hardest in really difficult systems and COVID and lockdown here in Victoria certainly hasn't helped that, having to provide things more and more over the internet, which is something we might touch on later, the safety concerns that raises and the disability access services concerns that that raises.

So I guess prior to the Royal Commission in Victoria and even still today, one of the most common questions I'm asked is, is there a special refuge or a special service for women with disabilities.

MS EASTMAN:  Is there?

MS HARGRAVE:  My response to that is I think of the quote from the late great Stella Young.  Stella talked about the word "special" and its history in segregation in the disability rights movement.  She has a wonderful quote which I think says it all, which is that people with disabilities are used to special schools, special students and special buses and that we know that "special" is another word for "crap".

So the reason I draw on that quote is because, as Patsie said, it's the family violence response services that have these skills in risk assessment, risk management and safety planning and trauma informed care.  It has been part of this system that is going to do the best for us and our safety.  It's where people are most likely to hear us and believe us and know     they will know the most about how the courts work, all the knowledge Thelma has, know the most, more than disability services will, around how the police and courts work.

I guess, in terms of the Royal Commission into Family Violence here in Victoria, the process of the Commission itself was terrific.  For example, they ran safe and accessible workshops with women with disabilities to hear that evidence and WDV, our organisation, felt really heard, too.  We presented at hearings and had our submissions taken onboard.  As a result, the Commission produced a report that had, from memory, 227 recommendations, and we were really heartened to see that at least 16 of those recommendations specifically identified actions around disability and additional ones did around mental health.

Then we went into the implementation phase and what we saw there was a lot of new public service staff come on board on high rotation and a lot of consultants come onboard.  Women with Disabilities Victoria certainly could not say we weren't included in those processes but there was a lot of busyness and churn and I guess today, five and a half years into implementation of those recommendations, it's difficult to have a tangible sense of what has changed on the ground to be better and  
it's also difficult, when I look at data and reports from government and data and reports from consultants who have done evaluations, it's difficult to see how what has changed for us.

And two things I would point out, too, which stand as big questions for me still since the Royal Commission relate to recommendations that the Royal Commission had and those were recommendations for the Victorian Government to take disability issues to COAG.  We will pull up the numbers of the recommendations, if I can find them, but one was around that the Victorian Government speak to COAG around disability crisis support funding for women with disabilities and family violence crisis; and the other one was around speaking to COAG around what the NDIA should do to promote workforce development around family violence.

Of course, we need to acknowledge COAG, The Council of Australian Governments, is no longer a body but it has an equivalent.  But the Victorian Government reported on those recommendations as having been implemented but I guess the question that still sits for me is what happened.  We don't know any more, so those recommendations were taken to The Council of Australian Governments but what came of that discussion?

MS EASTMAN:  Just jumping in there, they may be issues that the Royal Commission will follow up in the second part of this hearing when we have the opportunity to hear from the government, the Federal and State levels.  So could I turn to Thelma.  Is there an issue for First Nations women with disability in terms of the special service versus the general service?  What is your view and experience in the services for First Nations women with disability?

MS SCHWARTZ:  Thank you.  I also echo and support what has been said by both Patsie and Jen.  I think it's particularly amplified the lack of specific services for Aboriginal and Torres Strait Islander peoples, particularly Aboriginal and Torres Strait Islander people with disability and women and girls with disability.  That is even more amplified, in my experience, in remote, rural and regional areas.

You know, I think where QIFVLS, as a family violence prevention service and the 14 other family violence prevention services across Australia have really thrived in supporting our clients, especially those with disclosed disability, is the fact that we are a specialist service run by and for Aboriginal and Torres Strait Islander people.  We have Aboriginal community control boards.  We have then a trauma informed, culturally safe practice model.  We have risk screening and the ability to properly undertake assessments.

Now, my staff are not trained in disability or mental health workers.  I have lawyers, I have case management officers who have been specifically trained.  When we're making these triage and assessments of clients and their needs, when we're trying to address non legal needs and support our clients reach that point of self-efficacy and self-determination, what we then try to do is refer warm supported referrals to other service providers who have similar models of care.
 

What we find, though, is a lack of existence of those service providers.  What I find, unfortunately, in my practice in regional and remote Queensland, is a prevalence of the fly in, fly out model.  They are not faced based or placed in community so you've got that accessible on the ground, I can go to somewhere.  And even if they are, they still aren't culturally informed, they are still not driven and supported with the same safeguards and frameworks that we would build in.

And I think when I look at this service gaps, when I look at the reliance on telephone and internet, I think of my time out, just recently coming out off the outer islands circuits, going right up to Saibai and Boigu, and looking at the lack of telephone and internet accessibility I have, my phone was dropping out when we were trying to do meet and greets with you as I was travelling from one point of the island to the other.  So you can only imagine what it's like for people in regional and rural areas who don't have the same level of accessibility to telephone, to internet but you are putting services being delivered in that way.

I see that as a massive gap.  I see it, this focus on one size fits all.  With respect, one size fits all does not work for Aboriginal and Torres Strait Islander people.  I really echo that and I come back again to the national partnership agreement on Closing the Gap, priority reform area number 2, which speaks to supporting the build and growth of Aboriginal community controlled organisations.  We have the skill set, we have the knowledge.  We know how to deal and respond in a culturally safe manner for our people's problems.

I know that some people will say, and some clients have said, "I don't feel comfortable and safe accessing your service because of conflicts".  You know, there are people there who are family of the perpetrator and all of that.  So if there is a mainstream service provider, they also need to be appropriately skilled to appropriately respond to make those assessments and appropriately support that client reach that point of self-efficacy and self-determination.

MS EASTMAN:  So for all of you, I mean, how do you build the relevant expertise to address domestic and family violence and sexual violence in what we might loosely call the mainstream sector?  Is there a risk that if there's not, as you say, Jen, a special service, that there needs to be a mechanism to ensure that the general service is going to work for all women and girls with disabilities?  So what needs to be done to build the capacity in the general sector?  Jen, can I start with you.  Have you got any views on that?

MS HARGRAVE:  Sure. The first thing, I suggest, is that funders in government have on the ground experience in places like disability services and family violence response services so that they can actually build an understanding of what pressures are happening on the ground and don't place unrealistic demands on those frontline workers.

Another thing I would suggest is the anti oppressive practice that I see in family  
violence services is a terrific approach where if the system is creating barriers, that those workers are in a culture that allows them to push back on the system and make the changes that need to happen.  And the other thing I would say is that we have tailored programs within those mainstream services and workers dedicated to those programs who can be what you might consider practice leaders.

And we've seen a patchwork of examples of terrific work like this, often only funded to work in one more geographic location or only funded to work with one specific diagnosis group or only funded to work for a short time as a pilot.  What we need to build these up is for workers to be part of a network and an infrastructure so that they can support each other and build up each other's skills so they are not isolated and the only person championing disability in their organisation or their region or in their field.

But also so that we, as community members, can build up a sense of trust that that service has that skill and that worker that we can turn to, because all the barriers we've talked about just drive us away and break the trust.

MS EASTMAN:  I'm conscious of the time and I want to move to what might be a controversial topic and that is the suggestion that if women and girls with disability had better awareness and understanding about sex, relationships then they could better protect themselves and that's one of the mechanisms to protect women and girls with disability from violence and abuse.

Now, Patsie, I want to start with you.  There is an issue, is there not, in terms of the way in which women girls     or let's start with girls and adolescent girls, have access to information about sex, relationships, but is just more information and better teaching going to protect women and girls from the risk of violence and abuse in family domestic settings?

ASSOC PROF FRAWLEY:  Thanks, Kate. To start with I guess what we look towards to as what we know and what we know is that ideas of stranger danger, for example, that were seen as the way to teach children to protect themselves from being abused didn't work, don't work.  Why don't they work?  Because, inevitably, it's not strangers and, also, as we take a more feminist perspective on violence and abuse, we also look towards the structures in society which we have spoken a lot about today.  For women and girls of disability, that is ableism, that's sexism and other isms.

I've worked running sexuality relationship education with them for people with disabilities since 1985 when I first took up a job at Family Planning Victoria and it was my job to go around the State providing sexuality relationships education 101 in groups with people with disabilities and I can tell you a lot about that.  What I want to tell you I learned about that is that, in actual fact, you don't have to teach many people anything, really.

You know, there is a big focus in sexuality education on what I call the nuts and  
bolts, which is the bodies, those kinds of things.  For women at that time, the people with disabilities, in particular intellectual disabilities, it was all rules based as well, what not to do and, as a result of that, people were scared, they were really scared about sexuality and relationships.

I've spent however many decades that is now, I think at least three, trying to change the way we think about sexuality in relationships education with and for people with disabilities.  It's not that difficult, but firstly to say that it has a place in framing for all of us, who we are, how we see ourselves, how we position ourselves in relationships in the world, et cetera, but it doesn't teach us how to be protected from sexual abuse and it never will, not any of us, and it won't protect with people with intellectual disabilities or other disabilities either.  So we get that furphy out of the room and then we start talking about what can it do and how can it do it well.

I believe, and I guess I've got a bit of experience in it, I thought long and hard about this and I could talk about it under water and for a few days, if we think about where formally sexuality in relationships education happens to other people, it happens in schools, it happens in families and it happens in friendships and in peers.  So I think we need to be reflecting that absolutely for women and girls with disabilities.  The girls with disabilities, they are up against it if at school, if they are going to a special school for starters because it's very unlikely that the sexuality curriculum will be covered there.  If they are going to mainstream schools, it's very likely they will be excluded from those sessions.  That's a very clear story.  I've just finished co editing a special issue on sexuality and intellectual disability and this is what the research is still telling us.

I think what we need to do is certainly get kids with disabilities into sexuality and relationship education, where it's happening with their peers, with their brothers and sisters, with their communities, and that we need to look at the curriculum.  I actually think Victoria has got a pretty good curriculum.  I think in Australia there is some pretty good sexuality and relationship curriculum generally.  I don't think we need to do too much to that. We just need to put kids with disabilities in front of it and engage them with it.

In terms of ongoing education, I'm in the business of that, in that I co lead still a program called Sexualise and Respectful Relationships.  What we did with that is say let's put the teaching in the hands of people with disabilities through a peer education model. We've got evidence that this is a good, strong model, so I really advocate for that.

The last thing I advocate for actually is that absolutely the co development of resources and approaches with people with disabilities to tell you how it's worked for them and what maybe the failings were so that they can start to develop resources and approaches that can work for other people.

And the final thing I want to say is I think we need to also join up and join in partnership with mainstream places where sexuality and relationship education and  
information is being provided, so through sexual health services, through groups like     you know, all sorts of groups.  I'm thinking right now of a group that really comes into my mind, which is called Rainbow Rights, which is a self advocacy group for people with intellectual disabilities.  They do an incredible job of supporting each other in asking questions, finding answers, providing education, getting advocacy, and they partner up with like services and like organisations in what we would call the mainstream.

So just to reiterate, no, it's not going to stop people from being abused.  Of course, it's not, it doesn't for anybody, but it's an incredibly important part of people's lives and the gatekeeping that goes on to keep sexuality and relationship education away from girls with intellectual disabilities and other disabilities is still rife and needs to be challenged and I believe it's driven by a protectivist sort of framework     don't tell them, then they won't do it.  And I think we've got to challenge that again and again.

MS EASTMAN:  Jen, has that been your experience in terms of the work that you've done and have you seen those examples of gatekeeping?

MS HARGRAVE:  Absolutely, and I could not agree more around those issues.  Honestly, I think the Royal Commission could spend a week investigating how women with disabilities experience disability services and how safe those services are from a gender perspective.  And also I think we must acknowledge that women with disabilities are underrepresented in access to disability services as well.  The design of our NDIS does not make it equitably accessible for women with disabilities.  UNSW has research coming out about that shortly.  One of the other things I turn to to be advised around this is a report that came out of a Victorian inquiry into abuse and disability services, a parliamentary inquiry.  That inquiry, in fact, in its report produced a whole chapter which focused on gender.  While many of the recommendations were never endorsed by government, one was that the Office of the Disability Services Commissioner in Victoria, which is a body which will be dissolved in the move over to the national safeguarding bodies, but that that organisation take a role in understanding how prevention of violence works in disability services.

It was conducted in line with Patsie's approach to work with peer researchers with disabilities and also with Sally Robinson, who is a researcher in this field, and it talked about how that environment doesn't allow relationships to build on a number of levels. So it doesn't support safe relationships between staff, between people who use the service or with families and that there is no investment in building up those safe relationships.  It talked about how there is no support for embedding prevention and listening to the voices of people with disabilities into those environments and it talked about how workers aren't encouraged to undertake cross reflective practice and don't get sufficient supervision or support for the problems that they might see around violence against women.

MS EASTMAN:  Thelma, what is the experience for First Nations women with  
disability in terms of quality information about sex and relationships? How do you build culturally safe practices into a model that enables women with disability to have access to the information?

MS SCHWARTZ:  I think this really comes down to coming upstream and really focusing on early intervention and prevention.  And what we know in this space, as a family violence service provider, is, unfortunately, this is an area that is under resourced, under funded and if there are resourcing available, it is not culturally safe or appropriate.

So what we will then have to do within the ambit of our service is to redesign material, to then, through our community legal education and community education sessions, provide that information and awareness to our women and girls and, you know, we do so in a culturally safe, trauma informed way. I think that's probably one of the real big issues I see here, a lack of focus upstream, a lack of focus on education and awareness and schools have a big part to play.

And I know in that sexual violence space, we need to have these discussions around really embedding in our curriculum healthy and unhealthy relationships. I'm speaking about this, given that I'm a trained Love Bites facilitator so I can deliver that program.  Now, when I went through and did that program with my staff, what became very apparent is it is a very mainstream program.

We made it very clear in our training that some of the components of that program would not be appropriate for Aboriginal and Torres Strait Islander people and particularly so with Aboriginal and Torres Strait Islander women and girls with disability.  We would have to re imagine and redesign that.  So that's something that we're having to do.  It's on my to do list with my staff who have done that training, to do this.

I think one of the things I want to touch on is this perception, and maybe I've heard the question wrong and maybe I've interpreted it wrong, but a perception that victims need to always take proactive steps to keep themselves safe at all times.  With respect, this probably aligns with that misconception that violence against Aboriginal and Torres Strait Islander women is an Aboriginal and Torres Strait Islander problem.  With respect, it's not.

Violence is violence, is perpetrated by men of all cultural backgrounds and, at the end of the day, this violence is an Australian problem and we need to look at it through that lens and support victims when they are making complaints, because what we know about sexual violence matters is the low rates of actually reporting sexual violence and then the even lower rates of conviction.

I know this was something that was explored and, hopefully, will be captured within the new national plan.  It's something that is being explored in Queensland with the Women's Safety and Justice Taskforce in their second discussion paper as well, so this bigger picture thematic overviews.  It gets even more magnified if you are  
a woman or girl with disability and if you are then Aboriginal or Torres Strait Islander, that experience just compounds.

So I'm hoping I've touched on the question and the thought bubbling there, Kate.

MS EASTMAN:  Yes. I said it's controversial because we looked at the national survey on attitudes and while attitudes have changed, there is still an undercurrent that women should be responsible for managing violence and the attitude that if you haven't left an abusive partner then maybe you have contributed to it all and the like.

There are two other topics we were going to cover, data, and I was also going to ask each of you if there were particular recommendations you want to make.  The data issue I think we can maybe deal with in a different way, but I'm conscious that the Commissioners may have some questions for you and perhaps, in that context, the recommendations that you've been thinking about may emerge. Commissioners.

CHAIR:  Thank you.  I will ask my colleagues whether they have any questions of you, perhaps starting with Commissioner Mason.  I think you may be still on mute.

COMMISSIONER MASON:  Is that better?

CHAIR:  It is now.  Yes.


QUESTIONS BY THE COMMISSION


COMMISSIONER MASON:  Thelma actually spoke to the two questions that I was going to ask her in that last statement that she provided.  So in the Declaration on the Rights of Indigenous People in Article 21 and 22, it says that special attention should be given to Indigenous Elders, women, youth, children and persons with disability.  So "disability" is mentioned twice in that Declaration.  It's not a Convention.  It has been endorsed by the Australian Government.  And then we've got the Convention of the Rights of Persons with Disabilities.  So I just wanted to have it clear, Thelma, that we have these two UN     I would call them action plans, that are the focus of this Royal Commission, Indigenous people and race, disability and we are talking about women, girls around safety.

Is the issue not necessarily casting a lens on First Nations people and community control services? What you've been saying is that there is a lack of focus upstream and in mainstream that is creating the lack of action and resources to really provide the type of services and support for First Nations women with disabilities in relation to safety, family violence.  That's the first question.  The second question is ---

CHAIR:  Why don't we deal with the first question first and then we will come to the second question.  Thelma, you are the person to whom the question is directed.

 
MS SCHWARTZ:  Thank you, Chair.  Thank you, Commissioner Mason.  In relation to that first particular question, I think what is really at the heart of that for me in my experience is the invisibility of the Aboriginal and Torres Strait Islander women or girl and that is particularly amplified if that woman or girl has a disability.  We are not seen.  We are ignored.  We're an add on, we are a tick and flick.  And I've said that very recently at the National Plan because that's how we are viewed and how we're treated.  How we're just a subset and we have fought so hard and now we see a shift and that shift for me has come with the national partnership agreement on Closing the Gap.

And there are certain target areas that need to be addressed.  I note in there, there is a target in relation to family violence.  I unfortunately don't have that to see if there is a specific target on disability.  But I think it needs to be built in if it is left lacking and how we actually do that.

I'm tired, and I get this from my clients, you know, we want a service but there is nothing because people don't see us.  And it's even amplified if there is disability.  I find that really heartbreaking, especially when I'm out bush and you are dealing with clients on the ground where it is so hard generally to have regular service and good service and people who are adequately trained to address people's issues and concerns.

But then you go through that additional lens of being Aboriginal or Torres Strait Islander and then you add on the disability feature.  It just amplifies it for me.  And I come back to the fact that, you know, in Queensland we recently implemented the Human Rights Act and we are looking at things strategically through policy, through legislation in our drafting through a human rights framework and really recognising the dignity of people, and acknowledging particularly with Aboriginal and Torres Strait Islander people our dignities, our culture, our connection to culture.

So I'm hoping that's answering part of it for you, Commissioner, or if I've completely missed the mark, please let me know.

COMMISSIONER MASON:  That's good.  Thank you, Thelma.  Just quickly, is the invisibility issue mainstream or within First Nations organisations of disability for women?

MS SCHWARTZ:  That invisibility issue is definitely mainstream.  It think this is something that we tackle.  It's tied to perceptions around race, those stereotypes.  I think I already said it here, this misconception that Aboriginal and Torres Strait Islander, you know, women experience violence at the hands of Aboriginal or Torres Strait Islander men and that's an Aboriginal and Torres Strait Islander problem.  It's not.

COMMISSIONER MASON:  Yes.

MS SCHWARTZ:  That is such an ingrained misconception and really getting  
Australia and people within service providers to confront it, I know being in rooms when I've said the “R word”, racism, systemic racism, people think, "Oh God, here she goes". But it's an important discussion because inherently a part of these systems, there is a racist slant that disproportionately impacts Aboriginal and Torres Strait Islander people, especially Aboriginal Torres Strait Islander women and girls.  When I look at reports, I see that over representation and that growing prisoner rate of Aboriginal and Torres Strait Islander women and girls in prison.  When we look at why they are in there, what is a significant driver, we can see that driver is domestic and family violence.  And then you see those intersections coming in of child protection involvement, children in the youth justice system and that cycle perpetuating.

COMMISSIONER MASON:  Sorry, Chair, just the second question is that statistic of 34 per cent of First Nations women being hospitalised because of assault and domestic family violence, do we have the de segregated figure around First Nations perpetrators and non First Nations perpetrators? That figure has been talked about for many, many years.  We know in Victoria for Aboriginal women, the perpetrators in those relationships are non Indigenous men.  So the perception is that it's all the Aboriginal Torres Strait Islander men as the perpetrators in that statistic but what you're saying, that's not the case?

MS SCHWARTZ:  That's correct.  I don't have that statistic at hand.  We are very clear when we quote this statistic, this is not Aboriginal and Torres Strait Islander men.  This is all men.  Being really mindful that, you know, I think there is a perception when you see or deal with an Aboriginal or Torres Strait Islander person, we are inherently violent.  Because, you know, what is seen in media and the inappropriateness sometimes of how articles are reported and drawing back to the fact that violence is violence.

Violence is weighted against Australian women and within that you will have those women who identify as Aboriginal and Torres Strait Islander persons.  And the people who are perpetrating that violence are both Aboriginal and Torres Strait Islander and non Aboriginal and Torres Strait Islander and they are Australian men and viewing it in that context, which is the reality here.

COMMISSIONER MASON:  Thank you.

CHAIR:  Commissioner Galbally, do you have any questions?

COMMISSIONER GALBALLY:  Thank you, Chair.  I would like to raise the issue of protection.  I'm calling it “the paradox of protectionism” because I read that into what Associate Professor Patsie Frawley wrote in her statement.  And I just wondered, tying it to our wonderful Stella Young talking about "special" being "crap", I'm wondering if what you're implying is that "special" is also dangerous, in that it enshrines a lot of the issues that you raised earlier of power and control, isolation, being discounted, not believed, dismissed, hidden away, all of those aspects of ableism.  Whether that doesn't tie together into the “paradox of  
protectionism” --- not keeping people safe and not allowing women to really, with disability, to access services and get the support that they need.  I wonder if you could speak to that, please.

ASSOC PROF FRAWLEY:  Thanks, Commissioner Galbally.  Yes, look, I think I was just sort of revising my thoughts as I was listening to the previous conversation.  And I come back to the point that women and girls with disabilities who are experiencing violence and abuse are women and girls first and foremost.  And this idea that disability is a primary identity, the only identity, the only story that people have and therefore the story and the identity that shapes absolutely everything else.  That can be the case if you are able and involved in disability pride work which is fantastic.

Where it's used to limit you, to control you and to discount you, it is a problem.  The idea of protection     I mean, I think about the word "safeguarding" is used a bit now in legislation in policy and practice.  It certainly is here in New Zealand.  I'm sort of always challenging that word because what it really implies is a lack of agency, lack of autonomy and I think that this is really problematic because it ties to ideas of weak and sick and wrong and different and degenerate and all many other things that locked women with disabilities away in institutions not that very long ago, and still is.

And those approaches to safeguarding and protectionism actually have rarely been used to even state rights or reinstate rights.  They've been mainly used to restrict and restrain.  And so I guess, yes, I think that is a “paradox of protectionism”.  I don't agree with ideas of safeguarding.  I don't agree with that word and I don't agree with policy and practice that uses it because, well, it makes an offer it can't keep as well.

We can never completely safeguard anyone from anything.  And what is paradoxical about it is that we are also looking at words, particularly if you look at the UN Convention on Rights of People with Disabilities, the Convention on the Rights of Children, CEDAW, we are talking about empowerment, agency, self determination and these are the kinds of ideas, ideologies and approaches that we are engaged with in rights based legislation and in a rights based approach.

So having safeguarding and protectionism sort of looming in there is really paradoxical and I have challenged in the past and continue to challenge the idea that, for example, someone else making decisions for you is the best way to go.  Like, this is something that Article 12 in the Convention really raises, that if you are going to be having support around decision making, you've got to be at the centre of your will and preference.  Sometimes a person's will and preference might not end up be a good story for them.  They might be making choices and decisions putting them into more risky situations.

CHAIR:  I'm conscious of the time because we are going to break fairly shortly.  I wonder if we can move     if Commissioner Galbally has another question, perhaps we can move to that.  I want to make sure that my colleagues have the opportunity to  
ask the questions.

COMMISSIONER GALBALLY:  I have no other questions but I found that really valuable.  I mean, the only other thing was, Jen, you raised the Stella Young quote and I wondered if you wanted to make a comment on the danger for women and girls of segregation.

MS HARGRAVE:  I am pleased we got to have this conversation about safeguarding just now because it matches the research done overseas around how safeguarding works.  And I think if we are going to have safeguarding bodies who never actually visit women with disabilities and see where they're living and hear what they're preferences are and understand what informed decision making is, we are not going to receive good outcomes.

So models like community visitors are definitely a much better direction.  But we can't expect to achieve change through sort of short term two or three year grants such as ILC grants.  You know, Victoria handed over its capacity building funding to put women with disabilities more into the community over to the Commonwealth and in return we've got these fairly short term grants.  And these are not where we've seen real change made.  Groups such as Rainbow Rights, that Patsie mentioned, those self advocacy groups that are on the ground and that build up collective change are where we see real change happen and they are the legacy.  They are where the rights movements come from and I think they are where the rights movement can go into the future as well.

COMMISSIONER GALBALLY:  Thank you.

CHAIR:  Thank you.  Commissioner Bennett, do you have any questions?

COMMISSIONER BENNETT:  I can sense that you would like us to move on quickly, Chair.  So in fact what I would like you to do when you go to the next session that Kate Eastman has alluded to about what recommendations you make, what I've heard in the material you provided including Jen's submission and material by Patsie, it isn't just funding of specific services for women with disability confronting it.

I think Thelma also made the point that those elements, the education system, the health system and housing choices play a critical role both in the prevention of further incidents.  I would like to hear from you when you suggest recommendations, how that can be better joined up by State Governments who fund those jurisdictions rather than seeing them as stand alone pieces and initiatives that get funded on one off pieces.  But how they can be brought together for the longer term outcome, if you've got suggestions of better ways to look at the life journey of women and children     women and young girls with disability and creating systems that reduce the chance of violence against them.  Thank you.

MS EASTMAN:  Chair, I will take responsibility for allowing our conversation to go  
on longer than expected.  But what we may do is follow up on the questions that have been asked by the Commissioners today and perhaps follow up with our witnesses in writing in terms of some of the issues if we haven't touched on them.  So, Chair, I thank the witnesses for their participation today.  There is some material to tender but what I might do is deal with all the tenders of the material at the end of the day.  Thank you.

CHAIR:  Thank you.  I too would like to thank, if I may use your first names following the leave that has been given, Thelma, Patsie and Jen, thank you for coming and giving evidence.  And thank you also for the documentary material that we've received, that we have read and will be reading again.

I should just explain that the need for us to keep an eye on time is because we do have other witnesses who will be attending and we want to make sure that they have enough time also to give us the benefit of their views this afternoon.  So that's the reason for needing to keep to at least some sort of timetable.  So thank you very much indeed for coming and thank you for your evidence.  It has been helpful and extremely interesting.


THE WITNESSES WITHDREW


MS EASTMAN:  Chair, could we adjourn until quarter to two on Sydney time?

CHAIR:  It's now just about 12.55 Sydney time.  We will adjourn until 1:45 Sydney time.  Thank you very much.


ADJOURNED    [12.53 PM]


RESUMED    [1:45 PM]


CHAIR:  Yes, Ms Eastman.


MS MARIA WOODS


MS CATHY WANT


MS KATHRYN FORDYCE


 
EXAMINATION IN CHIEF BY MS EASTMAN


MS EASTMAN:  Thank you, Commissioners.  The second panel today will continue to focus on issues of the gaps in services and this panel is really turning to look at frontline services.  So I want to start by introducing the members of our panel.  They each have given their oath or affirmation before joining the live broadcast part of the Royal Commission.

So, Maria Woods, can I start with you.  You are here solely in your personal capacity.  You are not representing your employer and you are not speaking on behalf of your employer.  And you have a background in your professional career starting as a counsellor in juvenile justice, child sexual assault and your career has very much focused on the delivery of frontline services to support survivors of victims of sexual and family abuse.  Is that right?

MS WOODS:  Yes, that's correct.

MS EASTMAN:  And you're located in a regional centre in New South Wales so you're not in Sydney or a major metropolitan centre; is that right?

MS WOODS:  That's right.

MS EASTMAN:  What would you like to tell the Royal Commission about your professional experience and what you have observed in the front line services?  And I'm going to ask each of our panelists to tell you a little bit about their personal experience before we move to the particular topics.

CHAIR:  Before we do that, I just would like to make sure you know where everybody is.  We have Commissioner Galbally in Melbourne.  We have Commissioner Bennett, who is in Canberra.  We have Commissioner Mason in Alice Springs, and I am in Sydney.  So that's where we all are and Ms Eastman is with me in our Sydney hearing room.  So I hope at all times that you can see the Commissioners on the screen but that's where we're all located.  Thank you.

MS EASTMAN:  Maria.

MS WOODS:  So I've been working in the field of sexual assault for around 21 years now and I've been providing face to face counselling and crisis counselling for victims of sexual assault and providing support to the carers.  I have then moved to working in an investigative role and supporting victims of sexual assault in that investigative position and then moved into managing services, managing violence abuse and neglect services, specifically sexual assault and then broadening into domestic and family violent and child protection as well.

MS EASTMAN:  Thank you.  Cathy Want, I turn to you.  So you are the service manager at Rosie's Place and you also have a long history in the delivery of frontline  
services for the survivors of sexual violence and abuse.  Is that right?

MS WANT:  Yes, that's right.

MS EASTMAN:  And what would you like to tell the Royal Commission in terms of your professional experience in this area?

MS WANT:  So I am a social worker and I came into the field of responding to victims of sexual assault, now about 35 years ago.  That was as a crisis worker at one of the major hospitals in New South Wales, which was Westmead, and then I then moved out into Mount Druitt, which is in Western Sydney, for those who don't know New South Wales.  So it is primarily an extremely socially disadvantaged area, very diverse community in terms of culture, quite a strong Aboriginal and Torres Strait Islander population.

And our service is an NGO, a non government organisation, and has been for also about 36 years.  We do work primarily with children and young people who have experienced sexual violence and domestic and family violence, including intimate partner violence for young people.  And we do also, and have also, tried to prioritise working with children and young people with intellectual disability over those years.

MS EASTMAN:  Now, Kathryn Fordyce, can I move to you.  You are in Tasmania, the northern part of Tasmania.  We had hoped to be seeing you in person today.  You are the CEO of Laurel House and this is a position that you've held for the last year or so; is that right?

MS FORDYCE:  A little bit less than that.  Quite a bit less than that.  I joined in late May 2021, so five months in, or something like that.

MS EASTMAN:  You started your career through studying speech pathology and you've had a long involvement in the delivery of disability services; is that right?

MS FORDYCE:  Yes, that's right.  I was trained as a speech pathologist and had quite early on in my career developed a really significant interest in working with autistic people, autistic people and children basically in the intervention and more recently in diagnostic services, and then I’ve been involved in the leadership of a range of different services, including allied health services, a specialist autism early intervention program, behaviour support and, more recently, community support and supported independent living with adults and young people with disabilities.  So during that role, I guess I became increasingly aware of the impact of sexual and family violence on people with disabilities that we were supporting and kind of grew in interest in exploring that area and the role at Laurel House came up, so being able to look at the other side of the coin and develop my skills and expertise in this area and, hence, coming to the Commission today.

MS EASTMAN:  What can you tell the Commissioners about the nature of Laurel House and the services it provides?
 

MS FORDYCE:  Yes, sure.  Laurel House is a specialist sexual assault service in the north and north west of Tasmania.  We are funded by the Department of Communities in Tasmania to deliver specialist sexual assault counselling services but also to support people immediately after a sexual assault through the forensic processes and also through reporting to police and through the legal processes.

We also have an NDIS, I will see information in a different capacity building branch that is about building the capacity of the mainstream health workforce and the disability workforce in better responding to sexual assault in people with disabilities.

MS EASTMAN:  All right.  So I want to jump straight into the topics for discussion this afternoon.  The first issue I want to ask you all about are the barriers for women and girls with disability who experience sexual or family violence to seek support or leave dangerous situations.  And we understand there is a range of barriers for women generally seeking support or reporting sexual and family violence.  Some of those barriers might be fear that the survivor will not be believed, isolation, a fear of children being removed, a fear of financial consequences and the lack of appropriate and accessible services.

So, Kathryn, can I start with you.  You have seen the barriers for women with disability disclosing incidents of sexual and family violence.  Is one of the barriers the need for women to have a trusted person to whom they can disclose and what can you tell the Commissioners about this experience for women with disability?

MS FORDYCE:  Yes, thanks Kate.  Definitely there are lots of barriers for women and girls with disabilities in disclosing sexual violence and one of them is about having established and trusted relationships with a person such that they are able to communicate with them about the sexual assault that they've experienced.  But also it's about having time with that trusted person away from their abuser.  We know all too often that abuse happens from family members or from other trusted people within a family or within service providers and, therefore, you know, being able to have time away from the abuser is important.

We also know that there is communication barriers and so a trusted person needs to be able to understand the communication approach or the communication style of the person with the disability, make sure that they've got appropriate vocabulary or communication aids and be somebody who is a responsive person who can hear them and create space for the person to be able to give that disclosure.  And I guess, you know, we know that not all people with disabilities or women and girls with disabilities would have access to that kind of trusted person and, therefore, it's really important that we can support people to develop relationships outside of the circle of support that may be the people that are abusing them.

MS EASTMAN:  Is the absence of a trusted person one of the reasons why, in your experience, women with disabilities say, frankly, “what's the point in disclosing violence and abuse,” because they're not going to be believed?
 

MS FORDYCE:  I think there's lots of reasons and I think many women with disabilities have long histories of being disempowered or ignored or not listened to in relation to kind of every aspect of their lives as a result of ableist and sexist attitudes, as well as kind of repeated and systematic failures acknowledging their rights and autonomy.

We know that in addition to those barriers, we know that all women, including those with disabilities, witness examples in the media where women have disclosed sexual violence and they're not believed, they are shamed, their character or their history is disrespected, so it's not surprising then that women with disabilities would find the disclosure process really difficult, that they are concerned that they won't be believed, that they are concerned that their perceptions won't be valued and then, on top of that, if they don't have somebody that they have an opportunity to disclose that to, you kind of add in many, many additional layers on the process that would lead to a disclosure.

MS EASTMAN:  Cathy, have you seen this situation in terms of no reporting, underreporting or reports not being recognised as reports of violence and abuse?

MS WANT:  Absolutely, for all three of those areas around sexual violence and domestic and family violence being discovered.  If we can hold issues in relation to the person with disability and often they are held as it's because of their disability, or it’s because of the limitations that they have that make it difficult for them: one, to know what happened was abuse; two, to know who to turn to; three, to know what their rights are, absolutely take that on.  It's lovely to hear what Kathryn is talking about because we have to so extend the circle and look at what is preventing people from safely accessing support.  It's often social isolation, isolated in their homes, isolated in their residential settings.  They may have social outings but if it's in the context where an offender is operating, that then becomes an unsafe place.

I think particularly talking with young women, which is one of our main client groups, is that isolation.  Isolation from peers.  When we talk about people disclosing harm, they will often disclose to peers, they will often disclose to friends and they have allies within their age group.  But when we are talking about young people and adults with disability, I think sometimes those networks aren't there, so who do they tell?

MS EASTMAN:  Is that isolation, isolation that might occur in a traditional notion of family but also isolation that occurs if somebody is living in specialist disability residential settings?  Are you talking about both there?

MS WANT:  I think both.  There is social isolation in itself, like access to employment, access to social groups, access to arts and crafts activity, access to belonging to anything, and often they are quite constrained and they are often constrained by the disability and it's like, “where do I belong, where do I fit in?”.  Sometimes the disability defines that.  Now – not always.  Absolutely not always, but  
for many people it does.

Now, if in those places of access or connection there is harm occurring, then where does that person then go, and safely?  And certainly the response that they may get, if they disclose in those settings, may be minimisation or denial or, in some cases, protection of the person who has done the harming.  And even though we've absolutely seen a shift in understanding with the Royal Commission into Institutional Responses to Child Sexual Abuse, there is still a culture out there of, “not my problem, not my responsibility”.  Therefore, the person and anything that they might try and indicate, remains invisible.

So, you know, we have to sort of look at our current responses within the service and within the wider society as hugely problematic.

MS EASTMAN:  I will come back and we might explore some of those issues in a little bit more detail.  Maria, on this theme of isolation, the isolation might arise as a matter of geography and one of the barriers to reporting might be something as simple as transport and the ability to get to a place where a woman or girl can receive assistance to be able to report.  So, in your experience, what can you tell the Royal Commissioners about the impact of isolation in a geographical sense?

MS WOODS:  Absolutely.  So women living in rural and remote communities, they often have to access services away from where they are living, particularly in immediate     to have an immediate response to a recent sexual assault.  And I think, as you can imagine, access to public transport isn't available within some of those areas.  So, often women with disabilities and children, of course, have to rely on other people to take them to the services, which then raises matters of confidentiality for them and also at what time they can access the service because they don't have control over that.

It's also problematic in regards to if the person that has caused them harm is the person that's caring for them, so they are often placed in a situation where they are having to really weigh up whether they want to access a service and being concerned about who is going to take care of them.  For Aboriginal women with a disability, how we conceptualise a disability can really increase some of those barriers to Aboriginal women accessing services.  I think if they have to leave the community to access services, they may not feel culturally safe to do that, so we need to be aware around our cultural competency in working with Aboriginal women who have experienced violence.

I think often women with a disability are vulnerable because of their disability and I think, unfortunately, for women with a disability, they are often sexually assaulted across their life span, which can impact on them being believed around instances of sexual assault.

MS EASTMAN:  Kathryn, one of the barriers you've observed is if you live in a small community where everybody knows everybody else's business, that, in a sense,  
can magnify the isolation because the fear of disclosing is that everybody will then know.

MS FORDYCE:  Yes, absolutely.  For victims of violence who live in small towns and remote locations, it can be difficult for them to present to hospitals or to police for support.  Community members know whose car is whose, whose house is whose.  It can be difficult for people to go anywhere anonymously or have visitors to their homes without people knowing, so that can act as a further barrier to disclosing sexual or family violence or in seeking ongoing counselling support.  I know that organisations like ours are cognisant of these challenges and typically would offer a range of services, including accessing our specialist services in community settings, like child and family centres or community and neighbourhood houses, local health clinics, schools and the like.  However, there are some challenges sometimes in those environments in terms of how confidential the spaces are, in terms of being able to use those spaces and, you know, the comings and goings.

Certainly in those environments, somebody could be coming to see any number of services so it can provide some level of anonymity.  It certainly isn't easy, though, for staff from those specialist services     well, staff from specialist services are sometimes known to people in the community as well, so people put two and two together when they see somebody with somebody that they know works for a particular specialist service.  So there is kind of lots of nuance about how do you provide services.  Sometimes that's by phone and online counselling but that can create additional problems if the person who is causing the harm lives or works within that particular person's home.

So there are lots of things certainly to be cognisant of in terms of providing a confidential service.

MS EASTMAN:  In that context, if a woman or a girl with disability wants to report an incident or incidents of violence and abuse but the person who has perpetrated that violence is maybe their parent, their carer or provides support, what is available for women in those circumstances?  And I want to ask each of you about that in terms of whether that has come up in your professional experience.  Cathy, can I start with you on that one?

MS WANT:  Absolutely.  Because the prospect facing     again I'm thinking of children and young people, the young people, what is facing them when the carer, the parent, the worker in the residential setting is also the offender.  I mean, it's that prospect of homelessness and, again, where do I go, and the lack of being able to access or get information.

I mean, this is a story for people without disability.  So if we think about, you know, they just don't know where to go and their first place that they may go is to the police.  So the response that they get at that point is critical.  And if the response is one of minimisation or a suggestion that this person is a frequent visitor to the police with complaints, then, you know, they will very much get a response of, basically,  
you need to go home and sort it.  I'm thinking in the case of adult women, this is a domestic violence situation     “sorry, this is a domestic” --- and not recognising it as violence and, “you need to go and sort it”.

So the prospect of homelessness is just such a strong impediment.  And along with that, then the other thing of perhaps more informal support is not available to them, such as friendship circles or extended family members or other workers, then how do they find that access to a service that may be able to help them.

MS EASTMAN:  Maria, can I jump in.  I'm going to apply a bit of protective interruption, if that's all right.

MS WANT:  Please do for me, Kate.

MS EASTMAN:  Just to make sure we can have the opportunity to ask all the questions that I want to ask you.  Maria, you have observed a situation where the person who may be the support for a person with disability and may accompany that person to disclose to the police or otherwise, it might be in the health service, may also be involved in perpetrating violence.  But you arrive at the health centre or you arrive at a support service or the police and it's the support person who is asked the questions and it's the support person who has to give an account.  How is that a barrier to reporting?

MS WOODS:  It's absolutely a barrier.  Without that safety of being able to have an environment that you can make the disclosure, it makes it very, very difficult for any of those processes that come after the disclosure to be put in place.  So we really need to be establishing an environment of safety for the women with the disability to be able to offer them that really client centred approach to really recognise with them around what they've experienced and to be able to give them an opportunity to make that disclosure and move forward with what they would like to do.

MS EASTMAN:  Kathryn, you've identified a further barrier, which is that we have a focus on teaching compliance and so rather than empowering people to say "No" and have autonomy over their bodies, we're teaching compliance in our practices, in our policies and in the organisation of services.  Can I ask you to expand on that and what that means for women and girls with disability who may be seeking support to make a disclosure?

MS FORDYCE:  Yes.  I do believe that this is improving and particularly it's improving with an increased focus on rights based approaches for therapeutic support but also the voices of people with lived experience of disability.  But it is historically commonplace, the early intervention; therapeutic supports and behaviour supports have focused on compliance, getting them to participate in activities that they don't want to, expecting them to do particular things, redirecting them from things that challenge other people, rewarding them for completing something that they don't want to do.  And all of those things, if you thought about them in another context, could be perceived as grooming-esque kind of behaviours of a person who  
has less than ideal motives.

If we think about things like a child not wanting to have a shower or a child not wanting to have their nappy changed or a woman in a supported independent living environment not wanting to have a shower and the support staff encouraging those things to happen because of the health and wellbeing of that person; but what are we teaching them through the various strategies that we might employ as disability providers in terms that they have no capacity to say no, or that they have no control over their body.

So I think that, yes, there is work being done about restrictive practices.  There is work being done around ensuring people have a voice, but is there enough of that kind of conversation going on?  There is a tricky balance between supporting people to meet their health and wellbeing needs, providing them with opportunities to participate in things that perhaps, initially, they might find difficult, but also ensuring we're teaching them that they have the right over their own body to have bodily autonomy and to say "No" to interactions, that I think we just need to get that balance right.

MS EASTMAN:  Can I turn to the topic of a crisis or emergency situation and all of you have been involved in frontline services, which is often in an acute or crisis situation.  The Royal Commission has heard that for women with physical disability, the options of seeking emergency accommodation and support can be limited just because of issues around accessibility.  Cathy, you've observed that the nature of refuges are not always able to accommodate people with psychosocial disability or mums leaving with kids with a range of disabilities, and the lack of accessible premises and supports of that kind is a really difficult situation.  Where do people go and what happens in those circumstances?

MS WANT:  I mean, I think, as we know, the existing pressure on the refuges, certainly in Western Sydney and absolutely elsewhere, are     you know, they can never keep up with the demand of people who are forced into homelessness due to trying to escape violence.  So for families where it may be a protective parent who has a disability or, most commonly in my work, it is mothers needing     women needing to leave but obviously taking their children with them and the needs of their children make it very hard for them to stay in the limited space in a refuge because a family of four or sometimes five can be placed in one room.

And there is communal living but if you have children with autism, children with high sensitivity to sounds, to space, to unfamiliar places, to loss of comfort, so if they leave their home, they very rarely can take much with them other than, basically, the clothes that they're wearing and perhaps some small things.  You are thinking about families moving into a refuge in a situation, it's going to be an almost impossible place to stay for a reasonable period of time.

And when we look at women leaving violence and moving into a refuge, that is usually at their most desperate state of, "There is nothing else for me to do but to do  
this".  And we also know that the period of time needed to leave a violent situation that you have been subjected to, often for years, to get to a place that even being able to manage day to day living can be several weeks.

Now, the risk in that period of time, if you're in a     and I would say hostile environment, and I don't mean hostile in terms of unsafe, but hostile in terms of it just cannot accommodate the many needs of the family where there are children with disability --- then in the hostile environment, what is your choice but to go back to the home and to go back to the familiar surroundings, because, ironically, it increases your lack of safety but it can also de escalate the current level of distress to children to be back in familiar settings.

So the choice for a mother in that is, "I've got nowhere else to go, I can't stay in this environment, my children don't understand what's happening, I have to go back home, I have to go back to the place where we are clearly unsafe".

MS EASTMAN:  Can I ask you there, what about women and young women who do not live in the sort of concept of family home but if, for example, they live in a group home.

MS WANT:  Yes.

MS EASTMAN:  What are the options for women leaving a group home in an emergency situation?  What crisis accommodation is available for women in those circumstances?  And I will ask Kathryn and Maria to comment on that as well.  How is that accommodated?

MS WANT:  For young women in a residential setting, what often happens is if they disclose having been harmed, perhaps by another resident or by a worker, then they will be moved usually to another setting that is attached to that organisation.  Now, in moving, they may be put into a decreased level of help in that setting.  So what I mean is you may move from a residential setting of maybe three or four people living in a home or in a residence to perhaps moving into a crisis accommodation where there may be 10 or 12 people and very high risk behaviours, including shared living, male and female, people with highly traumatised behaviour.

The other thing that may happen, so they move the victim, because often there is nowhere they can move the person who harmed at that critical point of time.  So the victim is the person who is moved around.  The other thing is other services may not have the resources or the room     I'm thinking of a young person who harms another young person --- to accommodate the level of supervision that's required in a group home.  So it's easier to move the victim, but it's not to a better standard of living.

MS EASTMAN:  Maria, you have a view that there should always be an option for a woman or girl seeking to leave a situation of violence and abuse and particularly an option in terms of crisis or emergency accommodation.  Have you had the experience of women and girls in the family setting but also women and girls who  
may be in group homes, in terms of what options are available?

MS WOODS:  Absolutely.  I think it's a really complex issue and particularly regionally and remotely it becomes more complex.  There's limited options available and quite often women and girls are left in situations where they are at particular risk and remain in those risky situations because there is limited other options and availability.  Then I think, you know, that is a real issue and it really does need to be addressed.

I think, you know, as Cathy was saying, the person who has been assaulted is often moved from where they are living and their place of residence and I think, you know, it's often seen as an easier option.  But for that person who has experienced that sexual assault, it sends a lot of messages to them around whether they should have disclosed, now they feel like they are the person who has done the wrong thing.

I think it's not good enough to leave women with disabilities and girls with disabilities in unsafe situations because there isn't anywhere else for them to go.  There needs to be other options available.

MS EASTMAN:  Kathryn, drawing on your experience in the disability services sector, what has been your experience in situations of this kind if women are living in supported residential settings and there is a need for acute or crisis assistance or support outside the group home?  What happens?

MS FORDYCE:  Kate, I haven't had a huge amount of experience in relation to people needing crisis accommodation as a result of sexual violence, but I certainly know that it's really difficult for us, when I was working for a disability provider, to find crisis accommodation for people during COVID and where we needed to separate people so that     because of concerns about COVID like symptoms.

So that was difficult enough, let alone to find more permanent arrangements for people.  And definitely there is always a dearth of providers available to take on the care and responsibilities in supported independent living.  Finding one at short notice is incredibly difficult, regardless of the reason that that is needed to happen.

MS EASTMAN:  Can I ask all of you this and I will just focus on service providers.  As you may be aware, the Royal Commission is interested in looking at the delivery, quality of services provided.  Generally, are service providers equipped to deal with circumstances where their clients may require acute or emergency accommodation outside the designated group home or particular circumstances of their accommodation?  Who wants to jump in on that one?  Cathy?

MS WANT:  I think that I would say that services that have the direct day-to-day work with people with disability need to be resourced to ensure that they employ workers at the level that people with disability have a right to have.  And in saying that, there are amazing workers that I have met over my years of work who go above and beyond certainly what the resources available within their workplace allow.
 

So this is not a statement all about workers but there is definitely a need absolutely for them to be trauma informed and to have a policy of trauma informed care and to certainly have a degree of understanding, of recognising signs of distress that may indicate that someone is being harmed, to know how to respond, to know how to report; policies in place that enable that worker to be supported by their workplace, to undertake those responsibilities of reporting.

And it's a lot about numbers, you know.  You know, if you're in a group home and you're looking after the carer, three or four workers and there is two of you and a resident of that service did discloses harm and you've got other residents needing, you know, hands on day to day care, sometimes it's resources.  Sometimes it's like, how do we do this? How do we manage this? How do we get this person safe? How do we bring in other services?

Again, it's a bit like we can't place responsibility for all of this on to workers but definitely onto services and, above that, onto the support of services, not only by giving them money but giving them clear guidelines of what proper practice, worker qualifications, worker ongoing professional development looks like and worker reprieve, worker respite.

So that workers, particularly in residential settings, because of the wage that they're on, are often going from one residential service to another on casual hours with not a lot of rest, they are called in when workers are sick, so there is problems in the entire system that need to be looked at.  You know, it's a system down approach so that, hopefully, it gets to the wellbeing of the actual people who live in those places.

MS EASTMAN:  Maria, do you want to comment on what, from a service provider perspective? Do service providers need to be thinking about how to deal with situations of acute or crisis violence and abuse against women and girls with disability?

MS WOODS:  Absolutely.  So there really does need to be some really clear policies and processes and robust policies and processes in place around a clear unacceptability of, you know, sexual violence and how to actually support women with the disclosure but also being aware around, you know, what options are available for their care in that crisis and also long term.

MS EASTMAN:  Sorry to interrupt, have you seen any examples of good practice in that area?

MS WOODS:  I think there are lots of good practices that do happen and when you see that happening, there are lots of commonalities around that and that's around collaborating with specialist sexual assault services in developing those policies and how to respond to somebody who has disclosed and what sort of support that they may need, what options are available.  I think being involved in training and that competency building for workers with a disability, to be able to learn about that  
trauma informed practice and that client centred approach.

I think when services work together, when you have specialist services, listing other services in those fields, I think that that's a really positive outcome for clients.

MS EASTMAN:  I want to move now to your experiences when you have seen women and girls with disability make their way to reporting to the police and their interactions with police and the justice system.  When the Royal Commission resumes this hearing in person, the Royal Commission will hear from witnesses about their experience in reporting to the police and their experience in the justice system.  Some are less than good stories but there are also some examples of good practice.  Now, what we have been told at the Royal Commission is that there is, for some women, experience of police not believing, not knowing how to communicate, not being able to identify what the actual nature of violence is and whether it is even covered by the relevant law and, also, at times police misidentifying the perpetrator of domestic violence as the person with the disability, and Thelma Schwartz spoke about that in this panel earlier.

Kathryn, I want to ask you about something quite specific to Tasmania and that is the pilot or trialling of a Witness Intermediary Scheme in Tasmania to assist children navigate the system and this scheme is mandated for children, is that right, but it's not mandatory for adults with disability.  I think you wanted to comment on what you've observed about the experiences of that and whether it has made the process of engagement with police and navigating through the justice system just that little bit easier.

MS FORDYCE:  Yes.  So the Witness Intermediary Scheme has been in place since March this year, so it's relatively new.  Yes, the police are, as part of their orders, encouraged or required with children, so that includes children with disabilities, to engage the Witness Intermediary Program.  It is designed for adults with disabilities or adults with communication needs and the idea is the Witness Intermediary provides support to kind of assess the communication needs of that person, make recommendations to the police and to the legal system in relation to how to phrase questions, how to create a conducive environment for that person to get the best evidence from them, even to potentially to make recommendations about the physical and sensory environment that would make that environment more conducive for the person.

And certainly our staff, but also the police that we have regular contact with in our service, have noted the value of the Scheme and just the importance of that.  I guess the challenge really is that for some people with disabilities who may present in an environment, it's up to the judgment of the police officer to make a decision about, you know, does this person     is this person's communication needs warranted of requesting the witness intermediary program.  I think sometimes that decision process is perhaps a little bit tricky and being able to kind of really think about, ideally with the consent of the person with the disability, understanding and encouraging its use wherever possible, because it just provides that additional  
support during something that was obviously very stressful and traumatic for people in terms of engaging with police and the legal system.

MS EASTMAN:  Cathy, related to this topic, we wanted to talk about the streamlined approaches and collaboration and that might be where there are a number of services that need to come together and that might include support for engagement with the law enforcement authorities or reporting to other bodies with regulatory functions.  Can I ask you in terms of a streamlined or a collaborative approach, do you have any views about what works or what doesn't work?

MS WANT:  I think absolutely collaborative practice.  I don't believe and I don't think that police should be assessing communication abilities of people with disability as to whether or not that person understands what they are being asked, because they will often say "Yes" or nod without actually understanding.  So I don't believe, if there is any indication that someone has a cognitive impairment, that I don't think police should be assessing that.

So to bring in someone, be it a Witness Intermediary or be it someone in the disability field, such as a speech therapist or a physiotherapist or occupational therapist, because we know that their expertise in working with people with disability is so high, that that assessment needs to happen.  Then I think, you know, they should have a support person, absolutely, when being interviewed.  That may not be given to them.  That includes not being given to children and young people of having a support person and at the time that the interview with the police is occurring.  They absolutely should have a right to have a support person and to make sure that they clearly understand, through whatever communication techniques and abilities they have, the process, what their rights are, what is being asked of them and so the only way to do it is to have collaborative practice, but not ad hoc.  To have a multisystemic team, so again we're talking resources, that can be accessed to ensure that, you know, the justice rights of someone who has been harmed are undertaken to the best possible level that they can be.

MS EASTMAN:  Kathryn, you said you think there is a need for shared language and collaboration.  You say services are operating all on the other side of the glass from each other and don't understand how powerful it is to work collaboratively.  Can I ask you a little about all on the other side of the glass?

MS FORDYCE:  Yes.  I guess sexual assault services and mainstream health and education providers, we all have the best interests of people at heart but we're not always working together in a collaborative way.  I certainly have seen that our organisation has benefited from our disability project where we've been partnering with disability providers and health providers and people with disabilities and that's kind of allowed us, as a sexual assault service, to challenge our preconceptions, to look at our practices, to think about how we better create environments and counselling and support services that are inclusive of and accessible to people with disabilities.

 
But also through that process, we've seen that health providers, GPs, allied health professionals, disability providers, they are all keen to strengthen their knowledge and skills in the area of sexual assault and trauma based care and being able to be better at responding to and being present to receive a disclosure of sexual assault.  And so I think that that kind of work that is done proactively in building relationships in developing, training in terms of those things, rather than waiting for something to happen and there be some pointy end thing that requires us to work together and that we're not all talking the same language, so that really proactive, preventative work is so critical.  But it costs money and it's tricky for people to do, particularly smaller providers, in terms of being engaged and being able to connect in that way.

MS EASTMAN:  Maria, what do you think are the elements of a successful streamlined or collaborative approach?

MS WOODS:  I think everyone, you know, really understands that people with a disability have a right to live a life free of violence of abuse and neglect and that includes sexual violence, so really being committed and clear around that focus.  You know, really working together in that collaborative framework and that trauma informed way with a client centre at the forefront of our minds when we're working.  We often have carers around, we have other people telling us what the client needs but we need to be working directly with that client and observing about how they're communicating with us about what they want.

I think really good communication, really good boundaries around who is doing what, what their specialties are and working together to really support that client, so I think that really clear communication is really important and that client focus.

MS EASTMAN:  I want to turn to the final topic, and we've focused a lot this afternoon on the acute or crisis situation and the disclosure or reporting to police or other authorities, but the services that you provide are also supporting women as survivors of family, domestic and sexual violence and that ongoing trauma can be lifelong and we've heard about the impacts in terms of intergenerational issues, concepts of who you are, your identity and parenting.  I wanted to ask you about the supports for women and girls with disability who have experienced violence and are survivors and what supports that are available for those women in being able to restore the sense of themselves and to feel that they are entitled to intimate, personal, family and sexual relationships.  Maria, can I ask about your experience in the support and information for women and girls with disability in developing safe, intimate sexual relationships, particularly if they have survived incidents of violence.

MS WOODS:  I think it's really important to be able to understand that women and girls with disability should be receiving accessible information about appropriate relationships and also about relationships that could be harmful to them so then they can really understand and really gauge when a relationship or when some behaviour towards them is not okay, but also giving them the opportunity to know what to do if that happens, like, know how to make disclosure, who to go to and where to access help.
 

So without providing that good information and education that is across their life span, really, in regards to appropriate relationships and healthy relationships, I think we are not equipping them with the resources to be able to identify when it's not okay and how to access services or make that disclosure.

MS EASTMAN:  Cathy, you've got some views about this process doesn't start after somebody has experienced violence or abuse, that support for women and girls in terms of their personal, sexual and intimate relationships has to start at a much earlier point in time to support women; is that right?  I think you've got some strong views about the nature of education for women and girls even at the level of school.  Cathy?

MS WANT:  Yes, absolutely, and, you know, we know that high school is too late and we know that as young as possible.  And it's more than teaching them about what is unsafe but what Maria was saying, it's giving them information that they can trust their own ideas and values and beliefs about how it is to be treated with dignity and respect and what that looks like.

So it's not just about harm.  It's more than that.  It's about their worth as a person, with or without disability, and what that looks like from a very, very young age.  And the obvious     the other problem is that in school, people with intellectual disability may be removed or not considered it appropriate or essential for them to access those mainstream education courses in the schools.  Will they understand the information?  Again, resources.  So we don't have the resources to put this in easy English.  We don't have the resources through our teachers to deliver this in a different way.  So if they are not going to fit in mainstream, the term used is "protective behaviours".  We don't tend to use that.  We tend to use "more ethical and safe relationships".

So they are often not being able to access that.  One of the difficulties for young people is that they are, therefore, accessing information, because they want to find out, they have a right to know, but through the internet and that's when they will be bombarded with not okay information and accessing very unsafe information and material and also opens up the harm to predators who are surfing the net.

So, inclusive     I read somewhere on a sheet, we got a mock sheet before we came into the main room     around inclusivity and that holds such a pivotal place in what we are trying to say here, why exclude when inclusion is just so much stronger?

MS EASTMAN:  Cathy, I will ask you the final question related to this and then I will open to the Commissioners, who may have some questions.  As women become older and more independent and live with disability, but they still may need support, what do support workers need to know about supporting women in their sexual relationships and how do we teach respectful relationships to those supporting women with disability?  It should be simple, shouldn't it?

MS WANT:  Well, I think it's simple and the first thing that we do is that we have to  
mirror respectful relationships.  We have to, ourselves, as workers, at all times uphold the dignity of people with disability.  Like, we have to model and absolutely show what respectful connection with someone else looks like and then to find out who else in the wider world also behaves in a way where they feel respected and they feel valued and they feel heard and they feel listened and how do they then know when that is not happening?  What do they notice?

They hold this already, but we have to find a way to help us understand what they already understand and then, as Maria was saying, we also have a responsibility to fill the gaps for them because they are wanting to know.  Like, is that right?  Is that not right?  How do I know?  What do I do?  These are the questions that they are seeking answers for and we have to do that first by giving the space, letting them have a voice, letting them have an audience who will listen to them and then about going, right, what are we going to do about it, so that there is a sense of agency.  I think it is simple, Kate.  I do.  It is so simple.

But simple means, I think Kathryn said it, means money, means resources, it means effort, it means determination to continue, it means long term programs, not short term programs.  It means a lot.  So it's a simple solution but it requires a very big load of resources.

MS EASTMAN:  We have touched upon a lot of topics and if there is anything that I've overlooked that you want to provide some further information to the Royal Commission, I would certainly invite and welcome you to do so.  The Commissioners may have some questions.

CHAIR:  Thank you very much for your evidence to date.  I will ask my colleagues if they have any questions.  I will start with Commissioner Bennett in Canberra.

COMMISSIONER BENNETT:  Thank you for coming and talking to us today, but I have no questions.

CHAIR:  Thank you.  Commissioner Galbally in Melbourne?


QUESTIONS BY THE COMMISSION


COMMISSIONER GALBALLY:  Thank you, Chair.

Kathryn, I was very struck by your point about     you said it in a quiet sort of way about the grooming possibility of positive behaviours, of a compliance based behavioural approach which is very common.  No?  I mean, if you were going to say that was the feature, that would be the feature.  You said there was work being undertaken to counter that.  Can you tell us a bit more about that and how widespread that work is?

 
MS FORDYCE:  I think probably just in relation to most people that implement a positive behaviour support framework would do so under the basis that it's a rights based approach and that creating an environment where people can live their best lives, but I think that some of the nature of the activities that are done may at times look like, you know, a focus on compliance rather than a focus on achievement     of achieving those people's rights.

I don't know of any specific work that is being done but I think it is work that we need to do and it is work that we need to actively have conversations and challenge each other on these kinds of things where we see practices in place and that we need to make sure that where behaviour support practices are looking in that direction of taking away rights from people is how do we ensure that we create other opportunities to build the skills and knowledge of the people with disabilities that are being supported.

They are saying how do they understand that they do have autonomy and rights over themselves.  Yes.

COMMISSIONER GALBALLY:  My other question to Cathy or Maria or anyone who would like to answer it, is I'm very struck by, you know, there is the view is that we're looking quite rightly at building intimate, personal, family, respectful relationships.  When we heard from the previous panel about powerlessness, lack of control, isolation, being disbelieved and especially thinking about women in group homes and Cathy's point that if anyone moves, they move, even if they are the victim.  You know, it just sort of feels like a long way to go.  Just any comment on that vision and the women in group homes and how to get there.  I mean, I suppose you've sort of said train the workers, but sometimes the workers are the perpetrators, even though     yes.  If anyone could comment on that and give me hope for that particular group because I really feel they might be left out of the whole equation.

MS FORDYCE:  I think education generally for the disability support organisation and the support workers, we have been surprised in the work that we've been doing about just how unaware people are about the magnitude of the problem of sexual assault in people with disabilities and that when you start talking to people about how common it actually is and that actually you should almost assume that somebody with a disability has been sexually assaulted, which is just appalling to have to think about, is that the vast majority of people will have been sexually assaulted.

I think that that opens up people's eyes to thinking that they need to do something differently and that they actually need to learn more about this and that they need to be open for discussions with their clients.  And I think one of the things, you know, as a speech pathologist I guess I'm constantly concerned about is the fact that we don't necessarily create environments that are conducive to communication about sex and sexual violence.  It's still a taboo and sometimes we withhold communication aids from people     I say "we", not me     there is frequently withholding of vocabulary.  We might decide that a 3 year old or a 4 year old child doesn't need the  
page in a communication book that has penis and vagina and ejaculation on it, so we don't put it in their communication aid.  At what point do we put it in their communication aid?  If they are misusing that communication aid, do we take that section out of their communication aid and not make that available to them because they are talking about sex inappropriately?  Do we create environments that encourage and are conducive to allowing people with disabilities to disclose?  I think we've got a lot more education to do in the sector.

CHAIR:  Commissioner Mason, do you have any questions?

COMMISSIONER MASON:  Just one, Chair.  Maria, you talked about your service working on cultural capability and I know that that would be a real interest and focus for all of you.  I was just interested in what First Nations women are saying around their own sense of being safe in mainstream services today, just your experience generally.  Thank you.

MS WOODS:  Look, I think there is a lot of work to be done in that area and I think, you know, there is lots of focus in services around how to make our services more culturally safe for our Aboriginal clients and working with our Aboriginal communities about what that means for them and also working alongside those Aboriginal communities about what their needs are in regards to flexible delivery of services and how we provide those services.

And I think when we work alongside those communities and really listen to, you know, their experiences and past experiences of working with services, we really need to learn around being able to, you know, be flexible and how we deliver our services so they are meeting those needs, and building our workers' competencies about working in Aboriginal communities, building those trusting relationships, and, also, you know, being really clear and open around service provision and communicating in a way which is culturally appropriate.

CHAIR:  Thank you.  Again, I would like to thank you for coming to give evidence, Ms Fordyce, Ms Want, Ms Woods.  We very much appreciate your contributions to the Royal Commission and we obviously will pay very careful attention to what you have been saying.  We appreciate that you have been giving us the benefits of your frontline experience, so thank you very much for your evidence today.  Thank you.


THE WITNESSES WITHDREW


MS EASTMAN:  Commissioners, can we take a short adjournment of about 10 minutes and we will resume with our final session for the afternoon.

CHAIR:  Thank you.  It's nearly 2.55 Sydney time, so we will resume at 3.05 Sydney time.

 
MS EASTMAN:  Thank you.

CHAIR:  Thanks very much again.


ADJOURNED    [2:51 PM]


RESUMED    [3:06 PM]


CHAIR:  Yes, Ms Eastman.

MS EASTMAN:  Commissioners, I will start with Ms Ryan.  She is in Hobart.

CHAIR:  Ms Ryan.  There you are.

MS RYAN:   In this, the final panel for today, we will examine the various gaps in the law around Australia which leaves some women and girls with a disability in some parts of our country, for some reasons, less protected from domestic and family violence than women and girls with a disability in other parts of our country.

We will be referring to violence within a traditional concept of family, so, close relatives and particularly the one immediate unit of mother, child, father.  We will also be referring to violence within family like environments.  By the latter, I'm referring to cultural concepts of family such as exists in First Nations communities but also home like environments where women and girls with a disability may live with other people with a disability.

The dynamics of that environment are analogous to conventional concepts of family.  That is to say, women and girls with a disability living in supported accommodation develop relationships and receive a benefit from this, not unlike that experienced in traditional family frameworks.  But they also leave such women and girls exposed to risk at a very function of having developed those relationships with other residents and carers.

Most state sovernments and territories do not maintain reliable statistics of the prevalence of family violence against people with a disability as data noting whether a victim of family violence has a disability is not routinely recorded.  The Commonwealth does collect limited data, for example, Legal Aid Commissions record whether people applying for aid have a disability and, if so, what the nature of that disability is.

In this session, we will hear from the President of the Law Council of Australia, Dr Jacoba Brasch QC.  Dr Brasch has provided a statement and, Commissioners, that can be found in Tender Bundle B under tab 1.  Dr Brasch has also provided a curriculum vitae, which is found in the same bundle under tab 2.
 

CHAIR:  Do you wish to tender that now?  That will be done later, thank you.

Dr Brasch, thank you very much for coming to     sorry, apparently I have jumped the gun yet again.  Dr Brasch, take your time.

DR BRASCH:  Thank you, Chair.  I appreciate the welcome in any event.

CHAIR:  I will take a deep breath.

MS EASTMAN:  I'm jumping up here, I'm sorry, Chair.  Ms Ryan is providing an introduction to the issues.  I mentioned this morning in the opening that Ms Ryan would provide an overview of where the gaps are in the Australian law from the perspective of somebody with a disability.  So, Ms Ryan, keep going.

MS RYAN:  As you heard this morning, Dr Brasch is a senior barrister at the Queensland Bar and she specialises in family law, child protection, relationships.  The Law Council of Australia supports the development of a nationally consistent definition of domestic and family violence and has been engaged in a consultation with its constituent bodies as to the precise terms of any uniform definition.

Numerous reviews and reports have examined family violence from a Commonwealth perspective and in 2011 the Act was amended after three very important reports were released and that is the Family Law Council's report ‘Improving responses to family violence in the family law system and advice on the intersection of family violence in family law issues’; the Australian Law Reform Commission report, Family Violence   A National Legal Response; and Professor Richard Chisholm's review in 2009, Family Court's Violence Review.  So, as I said, the Family Law Act was amended in 2011 to provide a much more significant and substantial definition of family violence consequent to those reports.

It included numerous examples of conduct that may constitute family violence but also limits its application to circumstances where the alleged perpetrator coerced or caused fear to be felt by the target of the abuse.  But these provisions only apply in courts who are exercising the jurisdiction, who are making orders under the Family Law Act.

Tasmania was the first State to legislate a family violence act in 2004.  All other states and territories have since enacted their own family violence protection laws.  Commissioners, we have prepared an aide memoire setting out the differences in law between each State, Territory and the Commonwealth and that is found under tab 19.

The aide includes provisions both in respect of the conduct constituting family violence but also the relationships held between the perpetrator and the target of their violence, that these laws say constitutes family violence.

Lastly, the aide notes which jurisdictions require that element of fear, coercion or  
intimidation to be felt for the conduct to constitute family violence.  Many of the different states and territories in this area seem to be trying to target certain relationships or certain behaviour.  It's not always the case across the board and in many, many cases the language used by each state and territory is strikingly different and some are highly technical.

Let us imagine the situation for this young woman.  Lily is 15.  She lives with her brother and grandmother in Victoria.  Her parents are deceased.  She has a disability.  Lily began menstruating three years ago.  Her brother is 18.  He is aggressive and physically intimidating towards Lily and her grandmother.  They are both scared of him.

For the last year, her brother has been sexually abusing Lily.  As Lily lives in Victoria, both Lily and her grandmother are persons able to be protected under the Victorian Act, the Family Violence Protection Act.  That Act defines "family member" as including a relative and "family violence" as subject behaviour towards a family member.  The law goes on to define the types of behaviour considered "family violence".

As the definition includes relatives, it clearly protects Lily from her brother and her grandmother from her grandson.  The Victorian law specifies sexually abusive behaviour is a category of violence to which the Act is directed.  In Victoria, the police would be able to assist and make a Family Violence Protection Order.

But if Lily lived in Tasmania, Lily should be protected by a Family Violence Order provided its terms are broad enough to address the abuse she is being subjected to.  But in Tasmania, neither Lily nor her grandmother are covered by the Family Violence Act in Tasmania. 

Conduct constituting family violence is limited under the Act to a spouse or partner or someone who has formerly been so.  The child of a perpetrator is protected under the Tasmanian Act by virtue of their relationship to the spouse offended against.  They are known as an affected child.

In Tasmania, Lily would not be able to seek the assistance of police pursuant to the provisions of the Family Violence Act because she and her brother are not spouse or partners.  In order to restrain her brother, Lily would, therefore, be dependent on her grandmother making an application in the Magistrates Court seeking a restraining order against Lily's brother to protect Lily.

In Tasmania, police can file an application for a Restraint Order in the Magistrates Court to protect an aggrieved person such as Lily and her grandmother.  However, Lily or her grandmother would first have to convince the police that it is appropriate for the police to file that application rather than the grandmother.  There is no guarantee they would be able to do so and, in fact, they may be so intimidated by the brother, or grandson, that this extra preliminary layer of intervention is insurmountable for them.
 

What if Lily's parents were not deceased?  What if Lily was living with her grandmother, having experienced or been exposed to family violence when living with her actual parents?  Does the Family Law Act offer Lily any protection from her brother or her parents?  The Act defines the relevant relationship between the perpetrator and the target of family violence as family members.  So courts making orders pursuant to the Family Law Act have the power to order a party to be restrained.

As Lily lives with her grandmother, to appropriately rely on the Family Law Act to protect her, both her parents and grandmother would need to be parties to the proceedings.  Lily's brother, however, is not a party to the proceedings.  He is an adult so the Act cannot protect Lily from her brother except indirectly by restraining the parties from, say, allowing Lily to remain in the presence of her brother if he is being aggressive or be in his presence at all.

But, arguably, the Court could not be confident the grandmother would impact her grandson's actions because she is scared of him.  So, in that event, a state based Family Violence Order of protection of some sort would be needed.  In Tasmania, police can impose such family violence restraints.  They are termed Police Family Violence Orders, or PFVOs, and they can remain in force for up to 12 months.  They do not require review by a court but an application for a review may be filed in the Magistrates Court.

Many other states and territories do not have such a simple and one stop solution available.  Many require that restraints by police be reviewed by the courts within set numbers of days or hours of the police making that restraint, that order or that notice.

Again, however, in Tasmania, a Police Family Violence Order is not an option for the protection of Lily or her grandmother because of their relationship to the perpetrator.  We will ask Dr Brasch about the Australian Government potentially introducing an amendment to the Family Law Act creating Commonwealth Family Violence Orders, consultations of which are in their infancy.

Contemplate the situation where Lily is now 18.  Three years ago, she moved to Queensland and has been assisted by a close family friend who does not live with Lily but undertakes a care role for which she is paid.  Among other assistance the family friend provides, there exists an informal arrangement whereby the family friend undertakes Lily's banking and shopping.  The family friend has manipulated coerced Lily to share her security PIN details.  Having obtained those details, the family friend has repeatedly withdrawn money from Lily's bank account and retained those funds for her own use.

The Queensland law specifically excludes an informal care relationship as a relevant relationship under its Domestic and Family Violence Act of 2012 if the carer is helping the target of the abuse under a commercial agreement.  If Lily can convince the Queensland police she considers the close family friend to be a member of her  
family     that could be the case were Lily of First Nations heritage     the police may well issue a Police Protection Notice pursuant to the Act to protect Lily from her family friend until the matter goes to court, as it must under the Act.  Other than that, the Act offers Lily no protection against her family friend.

Finally, let us consider the scenario whereby Lily did not move to Queensland, she moved to New South Wales and eventually resided in supported accommodation in a group home where she lives with three men and one other woman.

One of the support workers at the group home made Lily feel very special and they became close.  Eventually, the support worker began touching Lily sexually.  Lily did not tell anyone about the touching to begin with but as time moved on, Lily became more and more uncomfortable about this conduct.  One day, Lily was injured by another resident living in the group home and the police attended the group home to take Lily's statement.

Lily told the police about the support worker touching her sexually and about how she was injured by a fellow resident.  The New South Wales law, Crimes (Domestic and Personal Violence) Act of 2007, recognises the family like environments group homes represent.  It provides that a domestic relationship includes a situation such as living or has lived as a long term resident in the same residential facility as the other person and at the same time as the other person so long as it's not a correctional centre or a children's detention centre or has or has had a relationship involving his or her dependants under the ongoing paid or unpaid care of the other person.  And then it states:

Subject to section 5(a).

We will ask Dr Brasch about section 5(a) in a little while.  If officers consider it necessary to ensure Lily's safety and protection, in New South Wales, police would have an obligation to make a court application for an interim Apprehended Domestic Violence Order or an interim Apprehended Personal Violence Order, depending on whether or not the perpetrator is in a domestic relationship with the target of their violence.

But police cannot make an order, unlike in Tasmania.  This is yet another example of how technical many of these laws are.  Lily is able to make an application to the courts for protection but you have heard from our panel this morning of the many barriers that exist for women and girls in Lily's situation accessing support and justice.

Some jurisdictions are proposing amendments to their laws but they are each acting in isolation.  There is no national approach to standardise the definition of domestic and family violence and the relationships to which those acts are directed.  I will now hand over to Ms Eastman.

MS EASTMAN:  Thank you, Ms Ryan.
 

Dr Brasch, can I turn to you.


DR JACOBA BRASCH


CHAIR:  Dr Brasch, just before we start, now that you are on, can I just point out where everybody is.  Commissioner Galbally is joining us from Melbourne.  Commissioner Bennett is in Canberra.  Commissioner Mason is in Alice Springs.  I am in the Sydney hearing room together with Ms Eastman, who, I gather, is now going to ask you some questions.

DR BRASCH:  Thank you for that, Chair.  Thank you.


EXAMINATION IN CHIEF BY MS EASTMAN


MS EASTMAN:  Dr Brasch, you've practised as a barrister since 2000 and appointed Queen's Counsel in 2014?

DR BRASCH:  That's correct.

MS EASTMAN:  And your area of expertise and practice is family law, child support disputes, mental health law, domestic violence and child protection matters?

DR BRASCH:  That's correct.

MS EASTMAN:  We've got the benefit of your professional expertise but you are here speaking as the current President of the Law Council of Australia?

DR BRASCH:  Yes, I am, and if I am able to offer some of my professional expertise by way of evidence or opinion then I will make that clear.

MS EASTMAN:  And your role as the President, it's a term that you hold for one year and so you have been in the position I think since 1 January this year?

DR BRASCH:  That's correct.

MS EASTMAN:  And you've previously chaired the Law Council's Domestic and Family Violence Taskforce and you've served as a member of the executive of the Law Council and served as part of the Family Law section; is that right?

DR BRASCH:  That's right, yes.

MS EASTMAN:  Now, it might assist for the Commissioners and those following  
the proceedings today to know a little bit about what the Law Council is and what the Law Council's role is.  You've set this out in a statement but could I invite you to tell us a little about the Law Council?

DR BRASCH:  Certainly.  The Law Council is the national voice of the legal profession.  There is some 65,000 lawyers around Australia.  Every state and territory has a Bar Association and a Law Society and then a Director of each of those joins the Law Council and we deal with a lot of national and international legal advocacy.  So international, whether it's the convention on the rights of the disabled, nationally family law is a very big one and, as Ms Ryan said earlier, we are doing a lot of work at the moment on the Commonwealth exploring coming into the territory of family violence orders.

So we advocate on behalf of the profession at a national level.

MS EASTMAN:  But one of the functions of the Law Council is also to look at legal policy in Australia and to contribute to the development of legal policy and that might also be commenting on proposed law reforms, appearing before Senate and Parliamentary Committees and the like.  Is that right?

DR BRASCH:  That is absolutely right.  When I say advocacy, I also should have explained that I really mean that within a policy framework.  So we often give evidence before various Senate or House Committees or Joint Committees and the submission work of the Law Council on legal policy issues, particularly at a national level, is something that is, frankly, exemplary.

MS EASTMAN:  And the issue of family law and the structure and administration of family law and family courts has been a very topical issue for the law, the legal profession and the work of the Law Council over the last few years; is that right?

DR BRASCH:  It has.  I can speak most particularly from about 2012, when I was involved in the Law Council's submissions to the Productivity Commission, and it was an inquiry into what do the Federal Courts, in particular the Family Courts need, and the answer from the Productivity Commission was an immediate injection of about $200 million and ongoing increased resources.  And from that then there have been, Ms Eastman, a range of Senate Inquiries, House Inquiries, Joint Inquiries and the Australian Law Reform Commission itself in 2018 produced a comprehensive review into family law in Australia and I've been involved, in one way or the other, with the Law Council in all of those.

MS EASTMAN:  And the Law Council has got a number of internal committees that assist the directors in developing policy and I should make a disclosure at this point that I chair one of the Law Council committees in relation to equalising opportunities.  I want, Dr Brasch, to now focus indirectly on these questions of family law and legal protections, particularly around the issues of family and domestic violence or sexual violence and the Royal Commission is specifically looking at the rights of women and girls with disability.
 

One of the projects that the Law Council initiated a number of years ago was a project called the Justice Project and it really came out of some human rights thinking in the Law Council and bringing together a rights based focus on some of the work of the Law Council on policy.  You've provided in the material for the Royal Commissioners two of the chapters of the Justice Project.  One chapter dealt with people who experienced family violence and another chapter focused on the rights of people with disability.

The work of the Justice Project identified gaps in terms of legal protection and also made some suggestions about a way forward in better protecting access to justice and the rule of law.  So against that background, you can see the two pieces of work coming together in the context of the matters this Royal Commission has to look at, the rights of persons with disabilities but then people with disabilities, particularly women and girls, experiencing family violence.

You have heard Ms Ryan give a broad sketch about the legal position in Australia and it may come as some surprise that we do not have a consistent, a nationally consistent definition of family violence, domestic violence or violence in domestic settings.  Can I ask you to comment on what the Law Council found as a result of the Justice Project and, if you can, why are we in this situation of having very fractured coverage in terms of Australian laws?

DR BRASCH:  Thank you, Ms Eastman.  The Justice Project began in 2017 led by then president elect and went on to become President Fiona McLeod AO SC.  There was a Steering Committee and it was chaired expertly by the former Chief Justice, Robert French.  The point of the Justice Project was it identified 13 different groups or areas of disadvantage from the person's perspective, two of which you have alluded to; one was family violence, those surviving or victims of family violence, the other was disability.  Obviously, there were 11 other areas.

The point of the Justice Project was to look at what are the barriers for these people, and there is a lot of intersection as well.  You could add to your inquiry, for example, women and their children with disability and who are First Nations or are homeless, so the intersections are really quite profound and stark.

But the Justice Project finished in 2018 and it looked at what are these groups' barriers to accessing justice and then made some recommendations, or they are more faithfully called "priorities", to try and address that.  Because you can have all the rights in the world but if you don't know how to access the jurisdiction of those rights, if you can't access it, or you don't know who to turn to, those rights are rather meaningless.

So the Justice Project looked at barriers and particularly, Ms Eastman, for those family violence, those with disability, the barriers to accessing justice were many and continue to be many.  They include financial barriers, the idea that it might be expensive to go to court; the idea of not knowing there are community legal centres  
or even if there is knowledge of legal or community supports, how to access them, where are they?  Homelessness is a huge barrier for those escaping family violence and those also with disability.

Imprisonment is another barrier to access to justice, which might seem odd but we heard time and time again during the Justice Project of young women, particularly First Nations young women, that they felt safer in prison and that is quite frightening.  Another barrier to accessing justice which very much fits within what the Commission is looking at, those with disability, women particularly and family violence, is what I call a silo.  So you have the Family Court here, or it's now called the Federal Circuit and Family Court of Australia.  You had the Family Court in one space.  You have the Domestic Violence Court, in the states and territories, in another court.  Then you have the Child Protection Court, which is yet another court.

So navigating though three, as I call, silos, those three different courts is daunting enough for a lawyer, let alone someone who is at considerable vulnerability.  There are problems with awareness.  There are problems with attitude.  There are problems with education.  I am still, and now I will become Jacoba, the barrister, I am still amazed to hear women tell me, "I didn't know that this particular conduct was family violence".  So there's a huge education piece that is required.

Then, of course, another barrier to accessing justice for a lot of people, but more so those people escaping family violence and/or those with a disability is fear and reluctance.  Fear of retribution, fear of the legal system and a very big fear that if you put your hand up and draw attention to the fact that you and your children are living in a violent household, that Child Safety might take the children off you, so a whole revictimisation or a fear of revictimisation again.

So, Ms Eastman, that's the nub, if you like, of     those two chapters of the Justice Report are about 170 pages in total, doing the best I can to distill the access points down, that is very much where we landed.  I don't hesitate to say nothing, really, has changed in that space.

MS EASTMAN:  Just jumping in there, the report identifies that the family violence system is fragmented and complex and speaks to split child protection, Family Law and family violence jurisdictions.  But the report makes this point, there is a “lack of a single entry point into the system or a coordination between services which creates confusion and dissuades victims from seeking help”.  That is page 5 in the executive summary.  I will come back to the question I had, which is many people who are not familiar with the legal system will say can why do we have no single entry point and why are there so many laws in so many jurisdictions which are inconsistent?  Do you have an explanation for that to help us to understand that?

DR BRASCH:  I can give an understanding but I think every lawyer you ask might have their own view.  Drawing again on the Justice Project and all of the policy work the Law Council has done, the fragmentation that you referred to in the report, that's what I referred as the silos.  
 

Things are slightly a bit better now, because until 1 September, we had four different courts     the Federal Circuit Court, the Family Court, then the Child Protection Courts and the Domestic Violence Courts.  Now, the first two the government says have merged, we have the Federal Circuit and Family Court of Australia division 1, division 2.  So there is a single point of entry there.  But the bottom line is our Constitution divided powers in ways that family, family law and initially for children of marriage and then by dint of the States ceding power to the Commonwealth, children of de facto relationship, the Family Law Act under our     well, the family law under our Constitution is a Commonwealth creature.  Under our laws, child protection     our constitution, my apologies, are domestic violence, family violence.  It's got several different names across Australia and then child protection are within the province of the State and Territories.

Those of us who practise in this area and then with my Law Council hat on equally, the Rolls Royce would be one family --- one court.  That would be the Rolls Royce.  We see that in the Scandinavian countries, that our constitution prevents that, unfortunately.

CHAIR:  I'm not sure it does, Dr Brasch.  I'm not sure it does at all.  There is a very good article about this in the 1971 Federal Law Review about the constitutional power to regulate family relationships.  When we're talking about this area, because the Commonwealth has external affairs power, there is certainly no particular difficulty about the area we're concerned about in the Commonwealth taking it over and then, of course, there is the mechanism of the referral of powers that has been used to deal with a whole lot of other relationships, as you know, that were once the subject of State law.  Indeed, it wasn't until the Matrimonial Causes Act 1959 that we had a uniform law at all.

DR BRASCH:  That's right.

MS EASTMAN:  But one of the issues for the Law Council, I think, against that background of a fractured and fragmented system, is, as the Chair might say, there might, in theory be the power, but there also has to be the political will to have a consistent approach or a national approach that would replace, in effect, the system in the states and territories.  You've said in your statement that the Law Council sees a real benefit in consistency in terms of the approach and there has been some work done recently by the Law Council through a national roundtable to actually confront and tackle some of these issues about a nationally consistent approach and the mechanisms in which that could be done.  Do you want to speak to some of the recent work on the national roundtable and that approach to consistency?

DR BRASCH:  On very much the Lily story, that was an excellent highlight of how different protections apply in different places and different access.  One of my presidential priorities has been to work towards developing a nationally consistent definition of what is "family violence".  The conduct     there is two aspects to it, of course, the conduct and the relationships that are covered.  So the 26  
May, I chaired a roundtable that had experts in these areas and also representatives of each of the law societies and most of the Bars around Australia.

What we talked about there was the different definitions that we have but what should a model definition look like.  That is going to directors of the Law Council at our final meeting of this year, so I can't pre empt what they're saying, what the directors will ultimately determine, but the feeling certainly around the workshop was there ought be an overarching framework that exists in the Commonwealth and Western Australian legislation.  The focus is on the coercive controlling conduct that causes fear and then, underneath that, you have, say, your particulars or your specifics with examples there.

And that's not something that we currently have.  We have four different approaches around Australia, and I include the Commonwealth in that, to how "family violence" as a form of conduct is defined.  It just simply cannot be that Lily does not get the protection of the law in one jurisdiction but can in the other, or the way for her to access the law is different, depending on what post code, which state or territory she is living in, but that's where we're at.

Why is that so, you asked earlier, because domestic violence, as I take the Chair's points about foreign affairs powers, et cetera, but the practical reality is it is with the states and territories and they have developed their own sets of laws.  Some are more advanced as our knowledge of family violence increases, for example, technology.  Some legislation has picked up on those.  Some legislation still has a fairly narrow and if I could call it traditional definition of violence and what relationships are covered.

Depending on where Lily lives, if she is in a traditional definition place then she is not going to be covered for certain behaviours, as Ms Ryan demonstrated before.  If she is in a state or a territory that has a wider definition then she does have better access to justice.

So what we're doing --- the roundtable fell very much in favour of the approach that coercive, controlling and fear causing is the overarching principle and then behaviours and examples cascade under that.  That was the roundtable's very firm view.  It is, of course, a matter for directors and I'm very happy to supply the Commission with the final outcome of the directors' meeting in November.

MS EASTMAN:  So can I ask you then, if looking at the approach to consistency with respect to definition requires us to look in two areas, first of all the conduct that is sought to be captured and regulated by the law and the second being the type of relationships or situations where the law will apply, so dealing with the conduct first, you've referred to coercive control and this is language that we hear in the community, but not everyone might be familiar with the concept of coercive control and how does that fit into domestic and family violence?

DR BRASCH:  One of the well recognised classification systems of family violence  
has four different kinds of violence, all abhorrent of course, but four different, one of which is coercive controlling violence.  That is an ongoing pattern of using threats, of force, of emotional abuse to coerce a person, to dominate the person, to induce fear.  Situational couple violence is a separate one.  There is also violent resistance, when someone who has been the victim for a long time lashes out and responds, and then there is also     I said situational couple violence and there is also separation instigated violence where separation causes violence when there wasn't any before.

So all abhorrent but some legislation that we have in the Commonwealth and the states and territories uses the coercive controlling violence, so the first of those forms of violences, as the overarching principle.  So Commonwealth, the Family Law Act in Western Australia, for example, do that.

Other definitions, though, Victoria, Queensland, Tasmania, the ACT, coercive controlling violence is not a mandatory part of the definition but it is an example.  South Australia takes a different approach.  New South Wales takes a different approach yet again.  But the research seems to be, and the preponderance of expert opinion on this is it's the coercive controlling violence that ought be the overarching theme.

As for relationships, if I can relate that particularly to the topic matter we have under cover, looking at the family violence acts around the states and territories, it is, if I could use the vernacular, a land mine.  If it is not clear whether group home support workers are covered.  Some legislation is clearer than others, some not, and we heard the Lily story.  It's also not clear whether, say, for example, support workers in the family home are included or not.

But we, as the Law Council, very much favour the idea that carers, any definition of family violence is very clear that it's carers, whether they are paid or unpaid and, again, the legislation varies on that.  My own Queensland section 20 I struggle with to understand and I'm a lawyer that works in this area.  So a definition particularly relevant to your areas of inquiry ought cover carers, co resident kind of relationships, when Lily was living in the residential care; it should cover home like situations as well.  That's where we are focusing on.  Still for directors obviously to look at but they are the themes that the expert roundtable all landed upon and the expert evidence seems to weigh in that way as well.

MS EASTMAN:  Can I put this to you.  Standing in the shoes of a person with disability whose life might depend on various supports coming in different ways and in different forms into their home and into being able to participate in the community for some people going to day programs and the like, how far is the approach to capture relationships going to be person centred in the way the Law Council looked at a person centred approach in access to justice in the justice program?  Is that going to be enough just to look at relationships to catch a person centred approach?

DR BRASCH:  Well, I think looking at the relationship is looking at all sorts of  
persons and the situations in which they find themselves.  So looking at the relationship, as we're doing, and as we're developing, will be very much focused on the person just as the Justice Project did.  And then also to look at the conduct, the broad range of conduct, those persons may experience, so Lily is not hopping from State to Territory, from State being covered in one place and not in another.

CHAIR:  What would be the practical significance of a uniform definition of family violence that is expansive in the way that you suggest?

DR BRASCH:  There would be a number of benefits for that.  Awareness and education.  The idea that what might be family violence in the Northern Territory and is not in, say, Tasmania     I'm sorry, Chair     that doesn't help getting a national message as to what kind of behaviour is appropriate and what is not, so the idea of education.

Research, robust data.  I have a great concern that we are comparing apples with oranges at times.  There are some offences that are located     for example, strangulation, in some states and territories, that is in the Criminal Code, or the equivalent.  Some is in the domestic violence.  It troubles me the statistics are not robust because we are comparing apples with oranges.

So for education, for understanding, for research and then also for transportability and enforcement of orders, that if you move, if Lily moved, as she did, her rights and her remedies and reliefs ought be the same wherever she goes.

MS EASTMAN:  Just conscious of the time.  Can I move to this next topic and that is, is it enough to have a consistent approach to definition of family and domestic violence and, hopefully, a definition that adequately covers women and girls with disability?  The Royal Commission has heard in submission that access to justice can be very challenging, not being believed by people who you disclose to.  We've just heard about the difficulties of disclosure, engagement with police, engagement with a range of different people in the justice system.  Is it a matter of the justice system adapting what it does or is it a matter of having more funding, more support for people with disability, particularly women and girls with disability, to have to work through the justice system in its present form?  Do you have a view on how do we approach that access to justice issue?

DR BRASCH:  Money, of course, but money is not going to fix everything.  There is an awareness and understanding of people being able to understand what their rights are and how to access those.  Disability of where legal services, so that falls on us.  We need to have a disability awareness.  There also needs to be an awareness of those who might otherwise fall through the gaps in the regional, rural and remote areas.  We need increased education of awareness of the whole justice system personnel, so the police officers, the lawyers, the judiciary, corrections officers from the beginning to the end.  A better awareness of, you know, why might this person be acting a certain way.

 
MS EASTMAN:  Just jumping in there.  I mean, whose responsibility is that?  Should it be within the profession, within the corrective systems within the courts?  Who bears responsibility?

DR BRASCH:  Each of the stakeholders, each of the actors.  We have encouraged all law societies and bar associations to have CPDs on family violence.  For reasons that don't matter now, they actually do their own CPDs, but we've encouraged as the Law Council to do that.  The police have been doing since the ‘Not now, not ever’ report in Queensland have been doing a lot of work on family violence.  It's something that each stakeholder, each participant needs to be assisting those who are dealing at the front line with a better awareness education and understanding.

We need more disability support workers.  We need to think about how the Evidence Act is going to be applied or the court structure itself.  Is there accessibility, not only physically to a court but accessible information.  We can at times as lawyers speak in a language that we understand but it can be overwhelming for other people.

We need housing.  You know, if you are trying to flee family violence and take your children with you but you've also got a dog, there needs to be crisis accommodation that will let your teenage son come with you, because some don't, and will also let you take your pet, the family pet.  And there is another point of inconsistency.  Some Acts specifically refer to violence to animals, some don't.

So it troubles me then what does that mean for Lily if she had an assistance dog, for example and the violence was perpetrated on the assistance dog.  It is clear in some territories and states that would be covered, not in others.  So, intermediaries is another thing that can be given consideration to.  And jurisdictions that don't have a disability justice plan ought, through the Royal Commission, be encouraged to develop one.

MS EASTMAN:  What would a justice plan look like?

DR BRASCH:  A disability justice plan, there is an example in South Australia which you would be able to look at.  It's looking at the person.  It's looking at the whole of the person and what are their needs and how can the justice system properly cater for that.  So it starts off with not only having courts that are accessible, not having in some circumstances strobe lights because they can aggravate.  It's understanding the environment but also understanding the paperwork.  So a disability justice plan can start with that.

It can end with corrections facilities as well because there is a very high rate of those with disability incarceration but also point it at the lawyers, also inviting the judiciary, do I need to have a formal traditional court setting for this hearing?  Am I able to structure the court and the process in a way that still provides the veracity of evidence but might enable the giving of evidence to be more     comfortable is not quite the right word     but more appropriate for that person's circumstances.

 
You know, there is horrible studies that show, for example, in 2014 Blind Citizens Australia gave reports to the 2014 Human Rights Commission Victoria that the people they represent wouldn't make complaints because they weren't believed.  A year later, 2015, there was a Senate Committee that heard more than 70 stories, as you are no doubt hearing today, I didn't make a complaint about the violence, I knew I wouldn't be believed because of my disability.  And we need to turn that around.

MS EASTMAN:  I'm conscious of the time and we are very grateful for the detailed submission and the materials that you've provided to the Royal Commission.  I feel like this session has opened more questions than it has probably answered but certainly gives us a focus of things to undertake further research and consideration.  I'm looking at the Chair now because I suspect the Commissioners also may have some questions for you.

DR BRASCH:  Thank you, Ms Eastman.

CHAIR:  Dr Brasch, I will invite my colleagues if they have any questions, on this occasion starting with Commissioner Galbally.

COMMISSIONER GALBALLY:  Thank you very much, Dr Brasch, but I have no questions.  Thank you.

CHAIR:  Commissioner Bennett?

COMMISSIONER BENNETT:  Thank you very much.  I also have no questions.

CHAIR:  Commissioner Mason?

COMMISSIONER MASON:  No, thank you, Chair.

CHAIR:  Dr Brasch, you've cowered them into silence.

DR BRASCH:  I doubt that.  Could I, Chair, just commend the Royal Commission for shining a light on what is very much an under resourced and under researched area of family violence, those with disability and particularly women and their children.  I thank the Royal Commission for looking at this hidden scourge.

CHAIR:  Dr Brasch, I think on behalf of the Commission, I would like to thank the Law Council for the work it has done on the Justice Project.  There is some very impressive work that has been done and it is a matter of commendation that that work covers people with disability because, as you say, it's not something I think that the professional bodies in the past have been terribly concerned with.  And it is filling a gap.  Along with all the other material, it is a very large report and it covers a great number of areas and I think it has made a very significant contribution to the discussions that have to be held not only about disability but many other areas, but certainly including disability.

 
DR BRASCH:  Thank you.

CHAIR:  We are grateful to the Law Council and grateful to you for giving evidence today and giving us the benefit of your views and those of the Law Council.  These are issues, as Ms Eastman has said, that we will have to carry through and hopefully will be able to do something to address the issues and problems that you've identified.  Thank you very much.

DR BRASCH:  Thank you, Chair.

MS EASTMAN:  Thank you, Dr Brasch.


THE WITNESS WITHDREW


MS EASTMAN:  That concludes today's sessions.  Chair, I wanted just to tender the material which has been provided by our witnesses today.  We've prepared an exhibit list and we can certainly circulate that to the parties, with leave, but may I formally tender the material covering the first panel on gaps and services; the second panel, also dealing with gaps and services; and the material that we've referred to with respect to the Law Council of Australia.  The tender of that material, if I could ask you to mark it, and I will provide you with a full list, as exhibit 17.1 through to 17.7 and there is a number of subcategories in that, that pick up the respective CVs of the witnesses and relevant publications together with the reports and submissions that the witnesses have provided us.

CHAIR:  Would it be convenient to provide that list to the parties who are represented and we can formally deal with the admission of the material tomorrow morning?

MS EASTMAN:  I'm happy to do that.  That will conclude today's proceeding and we will resume at 9.45 tomorrow morning.

CHAIR:  Thank you very much.  We will adjourn until 9.45 am tomorrow Sydney time.


ADJOURNED AT 4.02 PM UNTIL THURSDAY, 14 OCTOBER 2021 AT 9.45 AM