Public Hearing 9 Sydney - Day 3

CHAIR:  Good morning, everybody.  We begin as we do with all our hearings with an Acknowledgment of Country.  I wish to acknowledge the Gadigal people of the Eora Nation, the traditional custodians of this land on which I am located.  I also acknowledge the Turrbal and Jagera lands upon whose lands our hearing room is located and where Commissioner Atkinson is sitting, and the Wurundjeri people of the Kulin Nation upon whose lands Commissioner Galbally in Melbourne is located.

I pay respects to their Elders past, present and emerging, as well as to all First Nations people who may be viewing this hearing on the livestream.

Yes, Ms Eastman.

MS EASTMAN:  Yes, good morning, Commissioners, and good morning to everyone following the proceedings today.  Our witnesses this morning will be taken from my colleagues in Brisbane.  Ms Fraser will take our first witness today who I can see is ready, Jess Mitchell.  And then Ms Zerner will introduce and take our second witness Oliver Collins, also from Brisbane.

CHAIR:  Thank you very much for coming to the Royal Commission in order to give evidence.  If you would be good enough to follow the instructions of my associate, she will administer the affirmation to you.  Thank you very much.

JESS MITCHELL, AFFIRMED

CHAIR:  Thank you very much.  If you would be good enough now to listen to Ms Fraser who will ask you some questions.

EXAMINATION IN CHIEF BY MS FRASER

MS FRASER:  Thank you, Commissioner.  We will now take the evidence of Jess Mitchell.

Jess, you provided a statement to the Commission dated 27 November 2020?

JESS MITCHELL:  Yes.

MS FRASER:  And you've got a copy of that statement with you now?

JESS MITCHELL:  Yes.

MS FRASER:  Are there any corrections or amendments you would like to make to the statement?

 
JESS MITCHELL:  No.

MS FRASER:  And you are familiar with the contents of the statement?

JESS MITCHELL:  Yes.

MS FRASER:  And it's true and correct to the best of your knowledge?

JESS MITCHELL:  Yes.

MS FRASER:  Commissioners, you will find a copy of Jess's statement in Tender Bundle part A at Tab 24.  I ask Jess's statement be tendered in to evidence and marked Exhibit 9.13.

CHAIR:  Yes, that can be done.

EXHIBIT #9.13   STATEMENT OF MS JESS MITCHELL

MS FRASER:  Thank you, Commissioner.

Jess, you are here on behalf of Children and Young People with Disability Australia, that is called CYDA, that is correct, isn't it?  You are employed by CYDA as a Youth Storytelling and Development Officer?

JESS MITCHELL:  Yes.

MS FRASER:  Can you tell me a little bit about what your role involves?

JESS MITCHELL:  My role involves engaging in facilitation and project work, and also doing research and data analysis.  Anything, the way I would summarise it is finding out what their stories are and then telling them.

MS FRASER:  That's great, because that is exactly what you are here to do today.  Jess, you've got a Bachelors degree in Social Science and an Honours degree in Psychology?

JESS MITCHELL:  Yes, that's correct.

MS FRASER:  While you are here on behalf of CYDA, you yourself are a young person living with psychosocial disability and neurodiversity, aren't you?

JESS MITCHELL:  Yes, that's correct.

MS FRASER:  Just before we move to address the evidence that you will give today, particularly in relation to the 2020 National Youth Disability Summit, you would like  
to acknowledge the privilege that you feel as a young person speaking professionally at this hearing?

JESS MITCHELL:  Yes.  As a young person living with disability I feel honoured to talk about the themes discussed at the Youth Disability Summit 2020, and a lot of these themes really resonated with me on personal level, based on my own lived experience, and I want to acknowledge my privilege in speaking about them and to clearly state that I am not immune to the issues that were discussed within the Summit, and as such I feel very privileged to speak on behalf of the young people who attended at the Summit and how to elevate their voice towards change at this hearing.

MS FRASER:  Thanks, Jess.  The Commission has the benefit of receiving your very detailed submission about the Summit.  While we only have time today to touch on some of the issues raised, it does so with considerable detail identifying a number of issues raised at the Summit including ADEs.  For the purpose of today we are going to be focusing on employment.  The statement that you prepared contains a number of quotes provided by Summit participants, doesn't it?

JESS MITCHELL:  Yes.

MS FRASER:  And the people that have provided these quotes, some of which you will speak to today, have provided their authority for you to provide the quotes to us, haven't they?

JESS MITCHELL:  Yes, they've provided authority for us to use it in any of our policy or advocacy work.

MS FRASER:  Great.  Jess, I would now like to move, if you are happy for me to do so, I would like to move to ask you questions in relation to the 2020 National Youth Disability Summit which you and I have agreed for today's purpose we will refer to as simply "the Summit", otherwise we might use considerable time in stating the title of the Summit several times.

JESS MITCHELL:  Yes.

MS FRASER:  Can you briefly explain the Summit to me?

JESS MITCHELL:  Yes.  The Summit was co designed from 20 young people from all across Australia, over a course of 8 months from January to September.  It was --- the culmination of that co design was agreed to have a five day online Summit that would cover themes such as education, employment, NDIS and housing, mental health and wellbeing, and awareness, access and inclusion.

Overall, 250 young people from all around Australia tuned into the Summit online, and for the purposes of the Summit, the Co esign Committee identified that it was important to extend the age range of what most people traditionally think of as youth  
to be from 15 to 30.  There were two reasons this decision was made, one being that it was acknowledged that young people who live with a disability often have their youth sort of stagnated or lengthened due to the challenges they experience due to their disability, and for this reason they may not have fully transitioned into adulthood by the age of 25 like most people anticipate young people will.  Also, the Co design Committee thought it was important that the Summit was the first of its kind in Australia, an event like this, and brought together young people with disability, and as such they didn't want anyone to miss out who may not have had the opportunity to have something like that when they were perhaps 18, just because they were a little bit older.

MS FRASER:  Jess, what were the nature of disabilities that were represented at the Summit?

JESS MITCHELL:  All range of disabilities were invited.  It was identified as very important by the Co design Committee that --- well, they acknowledge a lot of time we talk about disability, we tend talk about it in silos and say "This is a psychosocial disability, this is a group with intellectual disability", it was important to the Co design Committee to bring people with all sorts of disability experiences together to share their common understanding.

MS FRASER:  So when you provide quotes and the data that arose out of the Summit, you are really giving a representation of a broad cross section of disabilities, aren't you?

JESS MITCHELL:  Absolutely, yes.

MS FRASER:  And you mentioned that the Summit was delivered online.  Was it always the intention that the Summit would be delivered online or was it as a result of COVID 19?

JESS MITCHELL:  That was very much a result of COVID 19.  I think the Co design Committee's original idea was to do a one day in person Summit in Canberra, and to bring people together, but actually COVID 19 allowed more people to attend and make it in many more ways accessible.

MS FRASER:  We will touch on the aspects of learnings from COVID 19 later on in your evidence.  There was a decision in designing the Summit to make four out of the five days youth only days.  Can you explain that to me?

JESS MITCHELL:  Yes.  So the Co design Committee really thought it was a priority to have a youth autonomous day, meaning that young people could come together, share their ideas, relate to their peers from across the country in a way that was safe and supported, in a way that they did not feel restricted on what they could say.  It was deliberate that where older adults and workers could come along, young people actually had the opportunity to talk directly to those people and say "This is what we want", so it was very structured in the sense that it was still a youth driven  
space even though older adults were welcome to the space.

MS FRASER:  The 4 youth only topics, they were education, employment, mental health and wellbeing, and the NDIS and housing, weren't they?

JESS MITCHELL:  That's correct, yes.

MS FRASER:  As I mentioned earlier, Jess, for the purposes of today we will focus on the Summit as it related to employment.

JESS MITCHELL:  Yes.

MS FRASER:  Jess, I would like to explore some of the use of data and the key themes that arose out of the Summit.  I imagine that a five day Summit including 250 participants from around Australia must have presented an incredible amount of data and quotes from fellow participants?

JESS MITCHELL:  Absolutely.  Especially because we were using the online forums, we had the raw recordings of Zoom calls like we are having now.  We also had the chats, so what people were saying in the chats, and we also had things like PowerPoint slides the presenters were using that we could kind of draw upon too.  So there was an immense amount of data.  As such, when we were choosing how to analyse the data, we really needed to consider what would be the most time effective way to do this, because the demand for the data was quite strong.  People wanted to know the information.  And, for example, I wouldn't have been able to speak about it today if we had taken a different approach.  So we really felt the need to do what is called a Code Book thematic analysis, which is essentially a fancy way of saying, because the analysts, myself and two other people, were in all of the sessions observing, we were able to kind of say these are some of the things we observed that kept coming up, let's identify these as themes and subthemes, and then go back and listen to everything and read everything and put it --- and code it according to that Code Book which is a much more efficient way of getting the data.

MS FRASER:  Right.  And I imagine that that was a considerable body of work.  At the conclusion of that, there were five key themes identified, weren't there?

JESS MITCHELL:  Yes, so those 5 key themes were identity, enablers, barriers, solutions and social movement.

MS FRASER:  Okay.  And what we are going to do now, Jess, is in fact work through all of those themes and obtain an understanding of what some of the Summit participants identified under each of those.  In terms of identity, one of the sessions at the Summit posed the specific question to participants of “What does getting or having a job mean to you?”.  Remembering that Summit participants were all young aged between 15 and 30 with disability.

JESS MITCHELL:  Yes.
 

MS FRASER:  Can you share with the Commission, Jess, the types of responses and perhaps give some examples of responses that were given to that question?

JESS MITCHELL:  Absolutely.  So, overarching, young people when discussing what employment meant to them said that it brought them independence, it brought them new skills, it gave them opportunities to meet new people, and it also gave them a sense of living a normal life and transitioning into adulthood.

In regards to independence, young people discussed how earning money enables them to make life choices, which might be moving out or going on a trip.  For example, one young person said:

I found that a lot of people generally in my life think of a job as something they have to do to get money and it's not realistic to enjoy a job.  But I guess I've had a different experience as someone with an invisible illness, where having a job gives you independence.  If you can hold down a job, you can live outside of situations where you are not safe or comfortable.  You don't have to rely on an unreliable government system.

Another young person said:

"It gives me independence to start my life.  That's huge.  That's freedom."

The young people who attended the Summit really felt that having a job gave them freedom to live the kind of life --- a good life, I guess you could say, that was personally meaningful to them.  An element of this was being able to develop skills and meet new people that can shape their identity and who they want to become, and to add to develop their interest and passions.

One young person said:

"Working in teams of different skills has been a great way to feel like my vision, both my low vision and my creative vision, are being represented and fulfilled in like a really empowering and creative way."

So in that sense young people really could find work a way of channeling their energies and channeling their passions and also discovering passions they may not have thought of.  And another element was a job being part of normal life, and something that is sort of a transition that we should all be able to go through to become an adult.  One young person said:

"Jobs are a part of normal life.  As a person disabled or not disabled, I just think of a job as something everyone does and something they can do with their passions."

Once again, passion keeps coming up and it will come out in everything I discuss  
today.

MS FRASER:  Jess, drawing on some of those quotes that you've just provided us with, it sounds like the concept of having a job was an overwhelmingly positive concept for participants.  Is that a fair statement?

JESS MITCHELL:  Absolutely, yes.

MS FRASER:  Were there any participants that identified that they didn't want to have a job?

JESS MITCHELL:  There was the occasional person who said they had negative experiences and it sort of soured them towards having a job.  But overall there was definitely a theme that young people felt they were capable and wanted to engage in the workforce, and they really just needed someone to give them a go.

MS FRASER:  The concept of opportunity that we will keep coming back to, throughout the Royal Commission.

I think from what you are saying, young people with disability at the Summit sound like they recognise the opportunities that might be provided to them by having a job.  Would you agree with that?

JESS MITCHELL:  Absolutely.  For young people, having a job was a way of being able to initiate change, both within their personal lives but also within representation, and I might be getting ahead of myself here, but we will talk about it a bit more later in terms of creating opportunities for themselves, their communities, and society at large to enact change.

MS FRASER:  That's interesting you should say that, because that has been identified in the evidence, the concept that unless we start to employ people with disabilities, we are never going to necessarily change societal expectations about employing people with disabilities.

JESS MITCHELL:  Absolutely.

MS FRASER:  That concept of opportunity.  Two of the other key themes that were identified, which you've already touched upon, were enablers and barriers, weren't they?

JESS MITCHELL:  Yes.  Would I be able to add one last thing about identity before we move on?

MS FRASER:  Absolutely.

JESS MITCHELL:  Just one really strong element that stood out about identity for young people was having their full identity embraced in the workforce, so if young  
people, for example, identified as being Indigenous or a person of colour or being from a particular cultural group or part of the LGBTQI community, this is something that they wanted to be celebrated and promoted within the workforce, but often it was not and often people ran into barriers of it being something that would cause them to not experience positive experiences in employment.  But one young person did say, in terms of positive experience:

I found that working with a disability employment agency has been really life changing for me.  I managed to find a really good one here, just at a fair, in Victoria.  They support people with disability who are also LGBTQI+, so it's good having people understand all parts of you and able to support you in all those different aspects.

So you can see from that quote that young people with disability who attended the Summit really wanted to be able to bring their full selves to work, and to workplace situations like job interviews or job agencies in that case, where they can really be celebrated and be who they are, but unfortunately this wasn't always the case.  One young person said:

We note the situation for women of disability is often quite different to that with men of disability because we are not only coming against the systems of ableism, we are coming across the systems of misogyny and gender violence as well.

So, once again, young people felt a great deal of pride in their identity of living with a disability but often did not have this reciprocated or celebrating the workforce, and it often acted as a barrier, unfortunately.

MS FRASER:  So the real need for a person centred approach to employment for people with disabilities?

JESS MITCHELL:  Absolutely.  And I think recognising the unique experiences that can be drawn from being part of an international community, living with disability, young people often thought this actually made them better employees and gave them tools that their non disabled peers may not have had.  For example, one young person said:

I do have a belief that my career and employment journey are deeply enriched by my journey of disability, and that I am succeeding because of my disability and not in spite of it.  And that some of the things that I bring to the work I do to my employers or the value that I get out of me is intrinsically linked with my disability.  It's not me putting my disability to the side that helps me thrive and be great; it's the innate strengths that I get from my disability that bring some of my most important qualities.

Once again, young people really wanted to bring their full selves to work and often use their identity for work in things such as advocacy to improve situations for their  
community.

I do remember we had a panel that was called "What is advocacy and how you are already doing it?", and the young people who were on that panel were kind of inundated with questions about, How did you become an advocate?  What can I do to become an advocate?  What did you study?  What are the pathways?

The young people who attended the Summit were very keen to --- wanted to live their full identity at work and be able to enhance things in their community through their work.

MS FRASER:  We will touch on that a little bit later on, the concept of a young people with a disability being a core part of the solution, so thank you for identifying that now.

Coming back to enablers and barriers, these were two of the other key themes that were identified.  To some extent they were interconnected, weren't they?

JESS MITCHELL:  Absolutely.

MS FRASER:  By that I mean that something can be an enabler if it is provided or if it is done well, but equally the same thing could be a barrier if it is not provided or not done well?

JESS MITCHELL:  Yes, and this is quite deliberate in the way we analyse the data was to show that how something can be --- almost you flick the switch and say you do this well, it works, you do it poorly, it doesn't work.

The key example I think we are trying to draw upon is the example of listening.  For example, young people with disability often express that they did not feel listened to in the workplace, and that they often found themselves having their employers make assumptions about them, or to kind of say that you, as a young person, for example, one quote said:

As a young person myself I've been told no, you can't speak or no, you're not old enough.

So --- as well as situations where young people were often not listened to in the workplace and there were negative assumptions made about their disability which I will go to a little bit further in a moment, but young people said having been listened to in the workplace on the flipside was a really an enabling factor in the sense of having someone like a peer worker or a mentor who listened to them was really valuable.  One young person said:

Being able to talk to a peer worker who is around the same age is really important.  It can be quite intimidating speaking about some sensitive topics or an issue that's really important to somebody who has maybe never had that  
experience before, or may be a lot older than them.  They might not understand the language and I think it's important to have the understanding about how to communicate effectively with other people like you.  It's also helpful to have similar experiences or background.

So it might be, I've had the same problem before and I know how I was able to overcome it.  I do remember one young person who attended the Summit spoke about --- even being able to --- communication style, having other young people in the workforce, or peer workers, because I know --- personally I've experienced it being the only young people in the workforce, especially the only young people with a disability, how difficult that can be, and people talked about even having other young people around that they can communicate with means and, you know, like acronyms that are common amongst young people and how having access to that was really valuable in terms of peer support.

MS FRASER:  In terms of, and this might be a bit of an extension on peer support, but was the concept of having a person with a disability on, for example, a recruitment panel when potentially interviewing a person with disability, was that mentioned at all in the context of the Summit?

JESS MITCHELL:  Absolutely.  It was spoken about in the Summit how people felt that having a person with a disability on a recruitment panel actually levelled the playing field in many ways and addressed that power dynamic that can exist with young people with disability and non disabled older people.

They talked about how --- it also allowed them to show off their skills, once again the skills that come from having a disability in the sense of "Here is me engaging with my peers and here is me engaging in a one to one level where you see me", and it gave young people with a disability that chance to, I guess, show off what makes them unique and such a great asset.

MS FRASER:  Jess, the concept of proactive supports was raised as again as both an enabler, if it is provided and done well, and a barrier if it is not done well.

JESS MITCHELL:  Yes.

MS FRASER:  Can you talk a little bit about the concept of proactive support?

JESS MITCHELL:  Absolutely.  As I just touched on, there is a power imbalance between a young person with a disability and their employer who is hiring them.  There is always an element of power differential.  This means the young person with a disability cannot only be awkward bringing up things like access needs, it can be terrifying and it can be a source of great anxiety, because you are inherently risking --- you know, you're making people feel they are risking their job or risking they are being judged.

MS FRASER:  Their credibility.
 

JESS MITCHELL:  Their credibility, exactly, and I think the phrase I would use is that young people want employers to reach in, so not just reach out, but reach in to the young person, and kind of foster a culture of acceptance around diversity by saying things like, you know, young people said it's so much easier to have a conversation with your boss when they come to you first.  It opens up that dialogue, and one young person said:

Employers that are not just patient but wanting to make sure that you've what you need so that can you do your job in a healthy way as opposed to you having to fight every step of the way, it is reaching their hand out first, I guess, and saying 'What do you need for you to make this work' as opposed to being scared of what might happen if you speak up.

MS FRASER:  So the concept of not always leaving it to the person with a disability to request and ask for the modifications or adaptations that they might need?

JESS MITCHELL:  Absolutely.  And it was discussed a lot in terms of accessibility, really being proactive in terms of making it clear what is already in place and saying, you know, we might have better lighting or we have different things around sound, or we have these sorts of bathrooms, those sorts of things, making it clear to the person what you already have, so that they're not also being put in a information to make themselves vulnerable to ask those questions.  That definitely came up not just on the employment day but all throughout the Summit as well.

MS FRASER:  A specific barrier that was identified by Summit participants was negative assumptions in relation to the young person with a disability, and their ability to undertake employment, wasn't it?

JESS MITCHELL:  Absolutely.  These assumptions went two ways in the sense that for one, people might have assumptions about young people and they have assumptions about young people with disability.  So people with a disability --- so if you are a young person with a disability you are almost in this double jeopardy of being mutually young and mutually disabled, and it creates a dynamic which can be challenging in which people might underestimate you and how much work you are willing to do, but they might also overestimate you, so assume that your capacity, as strong as that is, without asking     once again it's about being proactive.

One young person said, in terms of underestimation:

It is portrayed as odd that people with disabilities have a career.

Another young person said:

They didn't want to get to know me or my interests or skills.

So once again, that was an assumption especially a person with a visible disability  
they might switch off already and go that's not quite right for us.  Other young people talked about --- I use the term overestimated, I don't mean that disrespectfully, I'm using it for the sake of connecting the two.  But what I'm essentially saying is when employers don't take access into consideration.  Some of the participants talked about where employers would not consider or listen to young persons' needs around disability, often making assumptions that they would be fine.  One young person said:

My experience was somewhat opposite.  Trying to get people to accept my limitations and that it was in fact okay that I had them.

Other young people talked about sometimes feeling like they were not disabled enough to warrant support in the workplace, or that in the other context they may be deemed too disabled to be worth the hassle.  One young person said:

People only want to think in high functioning or low functioning instead of everyone having unique barriers.

Once again that relates back to the pro activity of employers making that assumption you are either high functioning or low functioning, there is nothing in the middle and not having the conversation with the young person starting that dialogue.

MS FRASER:  It's interesting, Jess, because a lot of what you say is entirely on point with some of the evidence the Commission has already heard and will hear from other witnesses throughout the course of this hearing.  And particularly the concept of having to put in so much effort to reach the same point in the day as other people.  Was that something that Summit participants touched upon as well?

JESS MITCHELL:  I think so.  There was a sense of frustration that --- it often came up throughout the Summit overall, that phrase of, "The world was not designed for us", and often have people use that as a throw away statement, "The world wasn't designed for us", so yada yada yada.  And actually how wrong that is, and how we can't just accept that any more.  We need to say, "The world wasn't designed for us, let's design a new world".  That came up as a recurring idea.

MS FRASER:  Jess, one of the other things that will be touched upon in the course of the hearing with some of our witnesses is the mistreatment that they may have suffered as a result of having to undertake significant amounts of volunteer work or other unpaid work.  Is that something that was identified in the course of the Summit?

JESS MITCHELL:  Yes, that did come up throughout the Summit.  One example is a young person who shared their experience of doing free work experience at the promise of their work eventuating into a job.  The employer was --- the person referring to the employer, said:

He said earlier in the year he was going to hire me.  Then when I went back  
and asked for the job, he said, 'Nah, we don't have any work' but didn't say why.

Another young person talked about securing some employment through a Disability Employment Service provider, and explained how --- naturally like I said, young people are eager to get into the workforce, they really are.  So this young person kind of rushed into the opportunity but unfortunately the job was not the opportunity they had hoped for, and they experienced unpaid overtime, underpaid wages, insufficient breaks, and they felt that they had an onset of health challenges that was directly triggered by this experience in the work environment.  And like I touched on earlier, this was the person I was referring to about having negative attitudes towards employment, this young person reflecting on this experience and how they felt the Disability Employment Service had not supported them effectively and let them go into a dangerous and risky situation.

They said:

For me there is not a good thing about employment because I was not supported when I was working and so the barriers were, as I was not supported well, treated me not fairly, discriminated against as well.

Unfortunately I think young people --- like I said, that young people had an eagerness to work but negative experiences can really deter them.

MS FRASER:  Just to pick up on that point, it's the power and the impact of potentially only one negative experience, but that can have a flow on effect then to that young person with disability's perception of and experience with employment?

JESS MITCHELL:  Absolutely.  I do have another quite strong example of discrimination where a young person talked about attending a job interview where the job interview was not accessible for them.  So they said:

One of the things is access.  A big problem for me with a physical disability and using a wheelchair.  I applied for a role and got to the interview stage where there was a training session for about 20 people.  When I got there, the room wasn't accessible.  I got in touch with the people and they said 'Oh well, we will follow up with you afterwards'.  Then they never followed up.

You can see there how that could really have a detrimental effect on how young people --- I think as young people, you know, we're constantly changing and forming opinions of the world.  We are going through a massive flux in our identity, and to have something like that happen when you are young, that can have really damning effects on how you view --- I think there is an undertone that people expect people with disability to be resilient.  That's a really frustrating undertone that exists.  And not to say that we're not resilient but we shouldn't have to be, you know what I mean?

MS F 
RASER:  One of our witnesses yesterday, Jess, described it as, "You have to be extraordinary to be ordinary".

JESS MITCHELL:  Yes.

MS FRASER:  That sounds like that concept.

JESS MITCHELL:  It shouldn't be an issue to go to a job interview.

MS FRASER:  In considering the solution to some of the problems that have been identified, some of the participants identified themselves as a core part of the solution, and they reported what they wanted to do, in that they wanted to exist loudly.  I really like the sound of that but I don't necessarily know what it means.  Can you explain it to me?

JESS MITCHELL:  I will tell you the story of where the phrase come from.  "Exist loudly" was a phrase, it's one of my personal mottos that I was kind of using to describe the latent themes that were coming up in the data about the undertones the young people were discussing.  I got this phrase, and I will shout this person out, from a T shirt I own, designed by a queer disabled and young disabled activist, an artist, Ruby Allegra.  So anyone who is listening, go check out Ruby Allegra and buy her shirts.  "Exist loudly" on the shirt, but it's a phrase I've adopted from that shirt that I use about my own life.  It's a theme that came through latently in the Summit in the sense that young people were talking about how they really want to be part of the solution.  They want to take up space, and like I said, they are so eager to work but need support to do that.  They really want to be handed the microphone and they are proud of their community and they really just want to represent and take up space and to make change and they think they can make a change if provided the support to do so.

So, for example, one young person said:

Lots of systems were designed in a way that don't reflect young people and young people really want to shake these systems.

So I think it's a situation where young people really want to be out there and making the change and don't want to be consulted, they want to lead it.

And, as I said, young people view themselves as capable and hungry to contribute, and they want to do meaningful work but it's a struggle because it was identified at the Summit that these kind of ideas of productivity are just driven by capitalist notions that dominate our society is that you've to be productive to be worth something.  And young people with disability who attended the Summit really felt they were worth something regardless of how productive they were, and that they could be really great contributors to important work if they were given the opportunity to be measured beyond their productivity that measured their worth as a person and their skills.
 

One young person said:

I think accessibility and employment for me is getting able to do that meaningful work but also having time so I can fit in rest and fit in medical appointments and fit in caring responsibilities and my community responsibilities as well.  Obviously involves a whole array of things as well.  It means having a comfortable seat, and that kind of equipment that allows me to rest, but ultimately meaningful work for young people with disabilities, I think, really requires involving us tackling this idea of our value being tied to our productivity and knowing we are capable of engaging in work that supports our wellbeing and, yeah, ourselves.

MS FRASER:  Jess, as I suspected when you and I were preparing for this evidence, I suspected that we could probably talk about these issues for probably around three to four hours.  Unfortunately we don't have that amount of time today and we are almost out of time.  I did want to just touch on the role of education that was identified by young people with disability attending the Summit.  And it was the case, wasn't it, while some of the participants identified the need to educate employers, others identified the need to actually institute a program and a process of education at a school level?

JESS MITCHELL:  Absolutely.  So young people talked about how starting from the ground up and doing things like including representation of people with disability in society, so having people with disability existing loudly in education, coming into schools, doing talks, having people with disability being in all forms of life just existing loudly and how that can actually educate people as well as formal education.  But it was regarded as, yeah, if you are educating an employer, that's almost too late.  It needs to be intervened in the education system from a young age.  Not to say we shouldn't try and teach an old dog new tricks, but we do need to start from the ground up to address those kind of power dynamics that young people experience.  Other suggestions suggested engaging in things like co design and steering groups, providing young people meaningful opportunities to, for one, engage in that sort of education, to educate people about, for example, one young person said:

We need career paths to put us in positions of power and authority to enact change, to create a more accessible society.

So having young people really doing things like co design and building their way up into leadership positions so that they can enact and design those sorts of education structures you would put in place in schooling systems that would eventually lead to the kind of ripple effect of representation and changing attitudes that would also lead to a more inclusive society and accessible society in general, but also in regards to employment.

JESS FRASER:  That's fantastic, Jess.  Thank you so much for the evidence that you've given today.  As I said, there are so many other topics that we could have  
touched upon in the context of employment and the Commissioners do have the benefit of your very detailed statement.

I would like to personally thank you for your statement and for appearing today to give the evidence and in the preparation that you've so clearly done to present your evidence today.  I'm grateful for that.

I would like to pass over to the Commissioners now to ask whether or not they might have any questions.

QUESTIONS BY THE COMMISSION

CHAIR:  Thank you very much.  I will first ask Commissioner Galbally who is in Melbourne whether she would like to ask you any questions.

COMMISSIONER GALBALLY:  Thank you very much for your statement.  I found it very, very valuable.  In paragraph 94 you refer to young people as systemic and individual advocates.  I presume for all areas but also employment.  I just wondered whether you would care to elaborate and expand on that.

JESS MITCHELL:  Let me get paragraph 94 in front of me quickly.  Yes, so young people really regarded themselves as lived experience experts and wanted to be honoured in that process of providing their unique insights and inputs to contribute to a kind of movement or a social movement to increase employment opportunities for young people with disability.  So it was really seen as paying young people, definitely paying young people was highlighted as an important factor, to do things like co design, to do things like system and individual advocacy, and to let them be the experts in their own lived experience so that they can make a change.  It was regarded as that classic phrase about "Nothing about us without us"; if you need a change from young people, you know, about young people's issues, you need to involve young people and let them lead the way.

COMMISSIONER GALBALLY:  Thank you.

JESS MITCHELL:  Thank you.

CHAIR:  Thank you.  Commissioner Atkinson who is in Brisbane, do you have any questions?

COMMISSIONER ATKINSON:  Thank you.  I just wanted to thank you, Jess, for living out loud with us and giving us your views which are much appreciated, thank you.

CHAIR:  Commissioner Ryan?

 
COMMISSIONER RYAN:  I don't have any questions.  Thank you for your presentation and I don't think I'll forget living loudly for quite some time.

CHAIR:  Jess, I had a question about the composition of the group, the 250.  The people were aged from 15 to 30.  How many of those do you know were actually in employment at the time of the conversation?

JESS MITCHELL:  Unfortunately I'm not sure if we collected that data, but I can inquire to find out and perhaps provide that to you after the fact, if that's okay?

CHAIR:  Yes, sure.  And some of the participants, I assume, were still at school?

JESS MITCHELL:  Yes, many were still in school.  Some of the people who were 15 were so cool.  I was not this cool when I was 15.  They were so passionate and so impressive.  But there was also again many young people who were involved in employment who perhaps were in their early 20s, who were really passionate about their work and, yes, we couldn't include those quotes because it would have identified them but really spoke about how much they loved their work.

CHAIR:  Thank you very much.  I endorse the comments that have been made by the other Commissioners about the value of your evidence and the statements that you've provided and also the work that obviously went into the Summit.

JESS MITCHELL:  Thank you.

CHAIR:  It has obviously been an extremely useful undertaking that should have some long term benefits.  So we're very grateful for that to have been done and for you giving your evidence today.  Thank you very much.

JESS MITCHELL:  Thank you.

THE WITNESS WITHDREW

CHAIR:  Can we move now to Ms Zerner in Brisbane.

MS ZERNER:  The next witness is Mr Oliver Collins.  He is appearing in person here in Brisbane.  Mr Collins will make his way now into the Commission room.

CHAIR:  Thank you.  We will wait for Mr Collins to come on the screen for those of us who have the misfortune not to be in Brisbane.

Mr Collins, thank you for coming to the Commission in Brisbane today to give your evidence.  Could I ask you at the outset, please, if you would be good enough to follow the instructions of Commissioner Atkinson's associate who is in the Brisbane hearing room and she will administer the affirmation.  Thank you.
 

MR OLIVER GERALD COLLINS, AFFIRMED

CHAIR:  Thank you, Mr Collins.  Ms Zerner who is in the room with you in Brisbane will ask you some questions, and just so where you know the Commissioners are located, Commissioner Galbally is in Melbourne.  Commissioner Ryan is in Sydney with me in the Sydney hearing room.  So I will now ask Ms Zerner to ask you some questions.

EXAMINATION IN CHIEF BY MS ZERNER

MS ZERNER:  Mr Collins, can you tell the Commission your full name.

MR COLLINS:  Oliver Gerald Collins.

MS ZERNER:  It's correct, isn't it, that you have provided a statement to the Royal Commission?

MR COLLINS:  Yes, dated 18 November.

MS ZERNER:  Have you had a chance to read it recently?

MR COLLINS:  Yes.

MS ZERNER:  Don't require any changes or amendments to be made to it?

MR COLLINS:  No, thank you.

MS ZERNER:  True and correct to the best of your knowledge?

MR COLLINS:  Yes.

MS ZERNER:  Excellent.

Commissioners, you will find Mr Collins's statement in Tender Bundle Part A at Tab B, and I would ask to tender this statement into evidence and that it be marked as Exhibit 9.14, please.

CHAIR:  Yes.  Mr Collins's statement will be Exhibit 9.14.

EXHIBIT #9.14   STATEMENT OF MR OLIVER GERALD COLLINS

 

MS ZERNER:  Thank you, Commissioner.

Mr Collins, you are a solicitor in the Dispute Resolution group at King & Wood Mallesons here in Brisbane?

MR COLLINS:  That's correct.

MS ZERNER:  You're actually in the same building as we are in today.

MR COLLINS:  Yes.

MS ZERNER:  It's commonly referred to as Mallesons, are you happy for me to call it as Mallesons today?

MR COLLINS:  Yes.

MS ZERNER:  Excellent, and you've been at Mallesons since about January 2017?

MR COLLINS:  Yes, in a full time capacity.

MS ZERNER:  Excellent.  You had done some work experience before that, that is right?

MR COLLINS:  Yes.

MS ZERNER:  I want to come back to your work experience later on as we are going on through your evidence.

Since being at Mallesons you've always worked in litigation, that's right?

MR COLLINS:  Yes.

MS ZERNER:  It must be a strange experience being on the other end of me asking you questions then today!

MR COLLINS:  It has been an interesting experience, but probably good for a lawyer to have that.

MS ZERNER:  Absolutely.  I am going to come back to your work at Mallesons later on in your evidence.  It's correct that working in litigation, you are working the same hours as your colleagues at the moment?

MR COLLINS:  Yes.

MS ZERNER:  You are also undertaking the same billable hours as your colleagues?

 
MR COLLINS:  Mm hmm.

MS ZERNER:  For those people who are following on who aren't lawyers, we all refer to billable hours, but it's really a productivity goal in some respects or a daily goal to achieve, is that right?

MR COLLINS:  Yes.

MS ZERNER:  So different solicitors will have different goals to achieve, but you are on the same as your other colleagues that you are working with?

MR COLLINS:  Yes, and some days if there is more work you might do more hours.  Some days there won't be as much work, and you really have to judge it based on the urgency of the task.

CHAIR:  Ms Zerner, can I just interrupt to ask if you don't mind just slowing down a little.

MS ZERNER:  Certainly.

CHAIR:  Mr Collins is exemplary in that respect, but you're racing ahead and so far you are 3 furlongs ahead   

MS ZERNER:  Thank you, Chair.

CHAIR:  --- so maybe come back to the pack.

MS ZERNER:  I will bring myself back into the pack.  Thank you, Chair.

Mr Collins, you talked about doing different lengths of days depending on the work capacity.  You say in your statement that you had your first Supreme Court trial in 2018; is that right?

MR COLLINS:  Mm hmm.

MS ZERNER:  At the same time you were assisting with proceedings being heard in Sydney?

MR COLLINS:  That's right.

MS ZERNER:  Can you tell us what your role was, I guess in relation to the trial, but what sort of work requirements were necessary at that time for you?

MR COLLINS:  So, in the --- I didn't go down to Sydney so for the Sydney proceedings, you know, it was gathering documents that Counsel had requested or preparing letters or preparing discovery that the other parties were giving us.  But there were 4 parties in that matter so sometimes you can imagine we are getting lots  
of documents from different parties, you know.  There was quite a large volume of work to do.

And then in terms of the proceedings in Queensland, you know, there with many conferences with the witness to help prepare --- with the client to help him prepare.  Again, there was a lot of reviewing documents or responding to questions or letters from the other parties in that proceeding, attending court every day.  The trial was about 12 days, I think, at the end of the year.  And managing those two together sometimes necessitated having a late night here or there.  But, you know, I wasn't --- it wasn't just me.  I was there with the other people working and I was happy to, you know, be a part of the team and, you know, there was no unusual expectations placed on me.  It was just, you know, that was what sometimes happens as a lawyer.

MS ZERNER:  It does.  It does.  Mr Collins, what I would like to do is just --- if you can tell us a little bit about your disability.  You've said in your statement that at about the age of 18 months you were diagnosed with a very rare neuromuscular condition.  Can you tell the Commissioners a little bit about our condition.

MR COLLINS:  Yes, so it's called FOP, or Fibrodysplasia ossificans progressiva, bit of a mouthful!  So, what it does, it causes my muscles and tendons and ligaments to turn to bone and the bones will go on top of existing bone and across joints and through joints.  So, to put it basically, it encases the body in a second skeleton which results in very limited movement.  And so currently I am able to walk very slowly and a little bit but I mostly use the wheelchair, a manual or an electric wheelchair.  And I also have a walking stick for balance because my hips have frozen in a way that I am very off balance.

MS ZERNER:  And it's quite a rare condition you said in the sense that there is not very many people and you say in your statement as to the numbers?

MR COLLINS:  Yes.  There is only about 19 patients in Australia and there is less than 1,000 known cases worldwide.

MS ZERNER:  And in regards to where you're at now, as I understand, it has been progressive.  Is that right?

MR COLLINS:  Yes.  So, as most patients will find there's a slower progression earlier on, so the condition can be exacerbated by trauma.  That might be something like having a biopsy or that can be something like falling over, as happens to children.  So normally, and as was the case with me, it progressed quite slowly throughout my early childhood years and then around puberty it often times will start to see a more noticeable progression.  It first started with my shoulder, my shoulders and my back started to get affected.  But, again, it progressed quite slowly for me.  And then it really heated up in the last kind of three, four years.

MS ZERNER:  Mr Collins, if I take you back to growing up, and I guess in those teenage years you had some more capacity than you currently have now, is that  
right?

MR COLLINS:  Yes, a lot more physical capacity.

MS ZERNER:  A lot more physical capacity.  You say in your statement that you weren't treated any differently at home in regard to your siblings.  Can you explain that in relation to expectations with study and all of those sorts of things?

MR COLLINS:  Yes.  So both my parents are professionals and so academic success at school was made quite a high priority.  So, you know, there was an expectation that me and my siblings demonstrated that we did have the capacity if we applied ourselves.  There was always an expectation that you would do enough   that you would put in work to do well at school because the goal in our family was always to have a fulfilling career so to be able to get into whatever course we chose at university.  And so, yeah, it was the same for me as well as my siblings.

MS ZERNER:  And that application of having to do well at school and really applying yourself, that led you to studying law?

MR COLLINS:  Partially, yes.  There was also some assistance from a careers adviser.

MS ZERNER:  And when you were working through that, as you said your siblings went through the same process, your brother went through the same process in regards to choosing a career?

MR COLLINS:  I think having chatted with friends at the time, I think it's quite normal for people not to be entirely sure of what they might want to do, especially when you think this is what I'm going to be doing for the next 30, 40 years.  There is a lot of pressure on a 16, 17 year old to make that choice.

MS ZERNER:  And making that choice, did you have to take into account your disability and what the future might look like for you?

MR COLLINS:  Yes.

MS ZERNER:  And you chose --- you thought that law, with that guidance counsellor, would be an appropriate career for you to pursue?

MR COLLINS:  Yes.  Knowing how much computer work was involved, I thought it would be an ideal career.

MS ZERNER:  Right.  And it sounds like with all the documents and things you've talked about, that's actually turned out to be true in regards to computer and accessing all of those materials?

MR COLLINS:  Yes.  Yes.
 

MS ZERNER:  I would like to take you back in time, if I can.  You talk in your statement about when you were at university versus school and you talk about the size of the organisation and it was a bit daunting for you.  But you also say that there was a level of confidence that you perhaps didn't have in terms of your disability and how that perhaps affected you at university.  Can you just explain a little bit about that?

MR COLLINS:  At school I was involved in my IPC meetings, but I did also have --- my mum was there.  My mum played a big role in assisting to speak up when I might have wanted to be a bit quieter.  But at university when, you know, you are entering the real world, it was left up to me.  And so at those times when mum might have spoken up for me at school and I didn't, at university there was no-one.  Like, I was left to my own devices and so if I didn't take charge and speak up, then that was --- didn't happen.

MS ZERNER:  Did you find that hard in regard to confidence and perhaps because of your age and change from school to going to university?

MR COLLINS:  Yes, it was very intimidating.

MS ZERNER:  You have to excuse my naivety; you said IPC on meetings.  What was that?

MR COLLINS:  An individual plan for students with physical impairments.

MS ZERNER:  And that was at school that you had that?

MR COLLINS:  Yes.

MS ZERNER:  You had the opportunity to complete some paid and volunteer work experience before you commenced Mallesons?

MR COLLINS:  That's correct.

MS ZERNER:  We look back, going from 2012, among other work experience opportunities, you worked as a research clerk and you worked in a small litigation firm, is that right?

MR COLLINS:  Yes.

MS ZERNER:  In regards to getting those jobs, is it the case, as I understand it, that it was through informal contacts that were able to do some introductions, is that right?

MR COLLINS:  Yes.  My father had worked for the two partners at both the law firms separately and so he got me a contactand then I turned that into a work  
experience opportunity.

MS ZERNER:  Right.  So you were introduced to the contact but you pursued the opportunity and that was successful in obtaining those opportunities?

MR COLLINS:  Yes.

MS ZERNER:  You say that you were content to be treated the same as your colleagues, and even if you were offered adjustments, you would not have liked to have accepted them at the time.  Can you just explain a little bit about why that is?

MR COLLINS:  I feel like there is a greater amount of pressure on people with disabilities because the attitude is still that we are a burden.  And so even if we might --- like even if we might feel like we're doing the same amount of work, we have to go above and beyond to prove to everyone that we belong to be there because there is an added --- it's different to having an able bodied person when you need special arrangements put in place.  So, yes, and some of it might also be internal pressure as well, I think.  We put a greater burden on ourselves to make us feel like we are making the same contribution.  I think there is still a bit of work to change that perspective, both internally and from a general social perspective, so that people with disabilities can --- like, they don't have to deal with that added pressure, they can just focus on doing the job at hand and doing the best they can and proving all their positive attributes.

MS ZERNER:  Just in going back to going into law.  We hear that for a graduate position that it's very competitive.  Did you feel that that was an extra burden on you in regards to undertaking that work experience?

MR COLLINS:  Yes.  Yes.

MS ZERNER:  And so I think what you've said there is that because of the competitiveness of it, you didn't want to be a burden, you didn't want to stand out from those other colleagues that you were working with, is that right?

MR COLLINS:  Yes.  But, as a result, I may have put my body through more pressure and more pain than I otherwise should have been able to.

MS ZERNER:  And so the more pressure and the more pain, is it that you're putting those things aside to try and fit in to be able to achieve the next step in your career?  So you want to succeed at your work experience to look at other opportunities?

MR COLLINS:  To the extent you can put it aside.  There is always a little place when you're not fully comfortable physically, there is always a little bit at the back of your mind that is kind of stopping you from giving 110 per cent.

MS ZERNER:  And do you think again that perhaps age and confidence came into that a little bit in regards to those work experience?
 

MR COLLINS:  Yes, yes, definitely. 

MS ZERNER:  So perhaps the Mr Collins today might have been --- might be slightly different as to how you would approach that today?

MR COLLINS:  Yes.

MS ZERNER:  You say that, and you talked about that just very briefly, about the mental anguish that goes on and perhaps some inner chatter.

MR COLLINGS:  Yes.

MS ZERNER:  Can you just explain to us what process you go through in that regard when you are in a work environment and you are trying to be equal with your colleagues, not wanting to be a burden?

MR COLLINS:  You have to --- you have to kind of --- to the extent you can, you kind of push it aside, you know.  With a disability you can sometimes get good at smiling even though you're feeling a bit of pain or you're feeling, you know, a bit uncomfortable.  So you kind of get like a suit of armor on and you don't really let people in to see the full picture because, you know, you don't want --- I think a lot of times --- my personal experience is that you don't want to always bring people fully onboard with the disability experience.  So it kind of stops you having authentic connections with your colleagues because you're never really 100 per cent there.

MS ZERNER:  Sure.

MR COLLINS:  Or you are not letting them 100 per cent in.

MS ZERNER:  So what I'm hearing is that there's the physical aspects of perhaps working through pain.  And then there is obviously this mental anguish.  We had a witness yesterday to talked about having the taxing nature of disability and the stress that goes with that.  But also she talked about having to constantly problem solve about, for example, getting to a meeting or going to a particular event or something like that.  Is that something you have to think about in your position as to how I'm going to manage this particular invite I've got in relation to an event or something like that?

MR COLLINS:  Yes.  But I, myself, have tried to turn those little challenges into a silver lining of sorts.  So when you accomplish something that you are told you couldn't do or that you wouldn't do that, you know, I kind of like to celebrate those little wins.

MS ZERNER:  And I'm going to come to something about that shortly towards the end.  In regards to undertaking that work experience, certainly for graduate lawyers, there is the opportunity of undertaking clerkships and that's a pathway into a graduate  
position.  Is that right?

MR COLLINS:  Yes, that's the standard pathway.

MS ZERNER:  And it's the case, isn't it, you weren't able to undertake clerkships because of the medical treatment you were having, is that right?

MR COLLINS:  Yes.  So I was participating in a drug trial.  This was the first proposed treatment for my condition.  When I was diagnosed my parents were told there would be no cure during my lifetime so it was a very exciting opportunity.  Unfortunately, it didn't work, but it was still an exciting opportunity to have that option.  But it meant that I had to move over to Philadelphia for six weeks and, as luck would have it, it fell right at the time that all the clerkship applications were due and at the times they were doing all the interviews.  And, unfortunately, the clerkship process, the application process, is very traditional and fixed and not flexible enough to facilitate someone from overseas.

MS ZERNER:  And because you weren't able to go through that traditional path of applying for a clerkship, you had to look for other opportunities, is that right?

MR COLLINS:  Yes.  Yes.  In that last year I looked for any and all opportunities.

MS ZERNER:  You were applying to positions but you also had the opportunity to undertake work experience with a barrister, didn't you?

MR COLLINS:  Yes.  A family friend asked me to come in and assist him in a volunteer research capacity in my second last semester of university.

MS ZERNER:  And then that led to a contact at Mallesons, is that right?

MR COLLINS:  Yes.   There was no formal arrangement or anything.  He had just said he needed some assistance.  So I went in and helped him but he was very impressed with the quality of work I did for him and so he sent my resume along with a letter to a partner at Mallesons who he went to university with.  That partner then invited me to come in and do some work experience.

MS ZERNER:  Can you tell me a little bit about that work experience.  I imagine it would have been a bit daunting, was it, to go in and start doing that work experience and see where it was going to lead?

MR COLLINS:  It was intimidating from the perspective of going from a small litigation firm with maybe 14 to 15 people to Mallesons.  So entering the big leagues there.  But I think it was really beneficial for me because I was --- I think I was there for two weeks or three weeks.  However long it was, it enabled me to have a more practical interview of sorts so that I could demonstrate, you know, taking aside a disability from a traditional job interview where you might have to make snap decisions about someone within five minutes, that two weeks enabled me to relax  
into the role more and demonstrate that, you know, despite having a disability I could still do any of the required --- like any of the requirements of a future graduate lawyer or future lawyer and enabled me to really demonstrate my positive attributes and skills that I could bring to the job.

MS ZERNER:  And you refer to, I guess, traditional recruitment versus the recruitment you went through and you say an extended interview of sorts.  Do you think --- and I think you said you feel that would be helpful for people to have that opportunity to go through a non traditional recruitment, is that right?

MR COLLINS:  I think we need to move away from tradition.  Not just people with disability, but a lot of people     would benefit a lot of people better I think in being able to demonstrate what unique perspectives each person can bring to a job.  So I think it would definitely be beneficial.

MS ZERNER:  And going through that process, what happened after you had done the work experience?  So you were offered the position, is that right?

MR COLLINS:  So I wasn't --- the partner I work for now wanted to give me a position, but it wasn't guaranteed.  He pushed for me and within a couple of months I was offered a permanent role.  So I wasn't a graduate but I was like next to the graduates essentially.  So I did my PLT with them and since I was admitted I just moved to a full time solicitor role in the litigation section.

MS ZERNER:  Excellent.  Are you enjoying your role in the litigation team?  Is it work that you're enjoying?

MR COLLINS:  Very much so.

MS ZERNER:  Excellent.  What does it mean to be able to have that independence, and to have the job in litigation and to be able to succeed through that graduate program?

MR COLLINS:  It's amazing because for people like me with a physical impairment being physically dependent on people to do, you know, a lot of my basic tasks like helping me make my meals and helping me get changed and stuff.  So to be able to make that contribution just like, you know, anybody else like it gives me an amazing sense of personal achievement and personal satisfaction.  Just to be normal for want of a better word.

MS ZERNER:  And in regards to your condition, you've said that it has progressed in the last couple of years.  And there was a point where you reached a time in April 2019, you say in your statement, that you woke up and felt exhausted and asked if you could work from home.  You had some adjustments around that time in regards to your working.  Can you explain a little bit about that?

MR COLLINS:  Prior to that my boss said if there was anything they could do to let  
them know.  There were already other people in my team, there was a mother working from home ad hoc.  So the precedent was there.  But I didn't want to do it because I'm a social person, I get a lot of emotional benefit being at work and networking with colleagues and connecting with people.  But it got to the point, because, you know, I try and walk around as much as I can now, but, it's physically exhausting spending a day in the office.  So it got to the point where I just had --- I just couldn't face --- I just had to have a day of rest.  And then after that, you know, it started to become a more regular, you know, two days a week kind of thing.  It took a period of adjustment for me, you know, to get into the swing of working from home.  But now that I've been doing it for a little while, it has become much more beneficial for me from a productivity perspective and from a health perspective because I still alternate and have those days staying in touch with my colleagues and networking but I also have the physical opportunity to rest and, you know, moving around my apartment which is much smaller is much less physically demanding.  So, you know, I have those days at home to kind of physically, you know, try and maintain my position without putting too much physical stress on myself.

MS ZERNER:  And then COVID hit and then your colleagues were having that experience of working from home as well.  Did that affect the team at all in the sense of understanding the dynamics of working at home and what you had been doing?

MR COLLINS:  Having chat with my colleagues during the last couple of months I know they had the same kind of adjustment period to working from home.  When you go to the office, it is a bit of a mental adjustment to get used to working --- I work from my bed, for example.  I think now having been doing it for a couple of months, a lot of people are seeing the benefits, not just for other people but for themselves as well.

MS ZERNER:  Yes.

MR COLLINS:  Being able to have that day with the kids or having a day at home when you don't feel like getting into your full on work suit.  I know a lot of people I've had chats with are saying I don't want to call it a silver lining of COVID but seeing the benefits of this kind of working arrangement.

MS ZERNER:  Sure.  Mr Collins, you've come back into the office, haven't you, since COVID.  So you are back to a similar routine or building up to that routine, is that right?

MR COLLINS:  So, yes, I started coming in one day a week, maybe July or August.  And then after a couple of     after a month or so built up to two days.  Eventually it will go up to three again but I said to my boss I'm not there yet, it's still very physically taxing and I have to build up my fitness level again.  So my boss was totally understanding and said, you know, you just keep us in the loop but whenever you can make it in three days that would be great but no pressure.

MS ZERNER:  And you said to build up again.  So is there an endurance aspect  
because that assists you in some regards when you were getting into the office three days a week.  Is that what you mean in that regard?

MR COLLINS:  It seems ironic for me to talk about fitness level but it is, you know, it's a long --- it's a big effort walking around the office, you know, walking to the bathroom, for example.  And so it does take a bit of time to kind of build up that level again to where I can do it without being absolutely shattered by the time I get back from the bathroom.  I'm just taking my time.

MS ZERNER:  That's great.  I want to move to a different topic now.  It's something I think you are quite passionate about, as I understand, and that is the Diverse Abilities network of the Queensland Law Society.  Can you tell us a little bit about that.  It's a fairly new venture I understand?

MR COLLINS:  It's very new and it's very exciting.  I was looped in about December last year and it was just calling out     and it wasn't even from my connections, it was one of my connections liked it, I think, so it came up on my feed.  She was calling out for people with any disabilities who want to connect and just have a chat about diversity in their profession.  And it was so exciting to see the governing body putting out that call and obviously wanting to start the conversation.  So I messaged her, I emailed her privately and said whatever comes of this, like, I'm very keen to be involved in whatever capacity I can.  I mentioned it to my boss as well.  He was very excited and very supportive of me being involved with that.  And so took a couple of months and then in February we had our first meeting and then since then it has grown.  We've released a couple of articles and videos and other people have reached out.  And so the networks now is going really well.

MS ZERNER:  Excellent.  So you are a founding member of the network.  What's the aim of the network?  What was it when you came together to decide what do we want to achieve through this network?

MR COLLINS:  The aim is to raise the profile of disability and more.  From my perspective, we can do a lot just by sharing our own personal stories of being lawyers with diverse abilities and I've provided different diverse abilities.  We can do a lot sharing our story and encouraging other people who might be thinking about law or other people studying law showing it can be done and you can have a really fulfilling career and also demonstrating to employers and there is in house lawyers, lawyers like me, you know, there is a variety of different backgrounds in terms of their legal careers, encouraging all employers to look at us and kind of realise that people with disabilities can be very valuable and contributing members of your workforce and that they should definitely be considered for employment positions.

MS ZERNER:  And I think you said earlier in your statement that you have a goal that you hope one day that you don't --- if you walk into an interview or into a job opportunity, they don't have to ask in regards to adjustments, they don't have to ask about the disability but the employer asks them.  Rather than having to put it back on the person with a disability, is that right?
 

MR COLLINS:  It would be really lovely to see a world where people are just appreciated for their unique contribution they are making, not looked at as being burdensome in order to make that contribution.

MS ZERNER:  Excellent.  There is a paragraph in your statement, I don't need to take you to it, it's at the conclusion of your statement.  You say in regards to talking about yourself, and I will just read that, if that's okay with you Mr Collins.  It says:

Throughout my life I have felt that there is a certain pressure that people with disability often grow up with in that we are not supposed to aim for the same things.  This can lead to a certain amount of self sabotaging sometimes people with disability as they may not develop the same ambition.  In order for this to get better people's attitudes towards disability need to start modifying so people with disability won't always hear 'no', they will hear 'yes' or 'yes, let's do it a bit differently'.

That's what you mean I guess in regard to that employment opportunities for people with disability to have that opportunity?

MR COLLINS:  Yes.  I was lucky enough to be raised with parents who from a very early age instilled that in me.  Whatever I can do to help to instill that in future generations of disabled lawyers, I am very keen to do.

MS ZERNER:  Excellent.  Mr Collins, in addition to the Diverse Abilities network of which you are a co founding member, you recently started a blog; is that right?

MR COLLINS:  Yes.

MS ZERNER:  It's called Ollie's story?

MR COLLINS:  Yes.

MS ZERNER:  What is the purpose of starting a blog?

MR COLLINS:  For the longest time having had discussions with my friends who are a variety of disabled and able bodied it kept hitting me how similar we all are.  I mean, you know, we're all different in some ways sure, but we are all feeling the same things, we're all going through the same crises or the same problems or the same journey.  So people have always said the way I write --- it kind of brings that out.  And I love to write.  So in isolation, when isolation started, I thought why not.  So, really the purpose is to help kind of normalise disability and bring it into the general discussion and go 'Hey, people with disability are just like me'.

MS ZERNER:  You say in your blog that it's the silver lining approach which you mentioned earlier in your evidence.  That is what you are trying to portray in your blog, as I understand.  But also for people to learn from things you've been through  
to help them?

MR COLLINS:  Sometimes it's easier with the disability experience to write it down rather than describe it to someone, like talking to them.  And I think sometimes also where people can go back and read it again and again to kind of help them understand it, I think that also helps like condense it down for people, for able bodied people so they can really see.  A lot of people have told me, I felt like that too or I felt that.  I think it really helps kind of bring the discussion back to a positive place.

MS ZERNER:  Excellent.  And there is a number of posts there.  We don't need to go to those posts but there are some excellent blogs there.  You must be very busy, you are working and you've got the network and this blog.  That's fabulous.  I've finished with the questions I wanted to ask you, Mr Collins.  I'm going to now hand over back to the Chair to see if the Commissioners wish to ask you any questions.  I would like to appreciate the gratitude for the time that you've given and the effort in putting all this together.  So thank you for your evidence.

MR COLLINS:  Thank you very much.

QUESTIONS BY THE COMMISSION

CHAIR:  Thank you, Mr Collins.  I will ask first Commissioner Atkinson who is in the room with you in Brisbane.  Commissioner Atkinson might have more than a passing experience with the Queensland legal system, and I will ask her if she has any questions.

COMMISSIONER ATKINSON:  Yes, I should probably start with disclosures.  My son was a Senior Associate at King & Wood Mallesons at the same time you were working there, although he is no longer there.  And I should say I was a judge in the Supreme Court of Queensland in 2018 when you were involved in that litigation, although it was not litigation before me.

I wanted to talk to you about Diverse Abilities and the advantages the employer gets from having you at the workplace.

So you started working from home regularly in 2019, and then your law firm, like many law firms, had to work out how they were going to keep their business going in 2020 with lawyers working at home.  So would it be fair to say that your employer had the advantage that they had the example that you had said about how you can work from home, what adjustments you've to make, how you get into the rhythm, how you can keep up your productivity notwithstanding that you're working from home.  Would it be fair to say that was an advantage to the law firm you worked for?

MR COLLINS:  My partner would have passed it on to other partners, that they can  
be comfortable that people are still doing the job, that just because they are at home and you can't see them, they are doing everything they need to do and getting done what needs to be done.

COMMISSIONER ATKINSON:  Thanks.  And the second thing I wanted to say was, in many ways --- and this is personal to me --- in many ways what you are talking about with Diverse Abilities, and demonstrating to students and young people coming into the law, how you can --- the advantages of working in the law, it reminds me of what many of us as older women had to do for younger women, or did for younger women when women in the law was an unusual thing.  So, similarly, by showing the example of doing it, of succeeding in it, but encouraging others who are coming after you, is that a similar thing that you're doing with Diverse Abilities and the Law Society?

MR COLLINS:  That's the goal.  So I think the best way to demonstrate, as with yourself, is to just, you know, show yourself doing it.

COMMISSIONER ATKINSON:  Yes.

MR COLLINS:  Show yourself doing the job and hopefully that can encourage, you know, future younger lawyers, female lawyers or lawyers with disability or any type of diversity, you know, to give it a go.

COMMISSIONER ATKINSON:  Yes.  Thanks very much for your evidence, Mr Collins.

MR COLLINS:  Thank you.

COMMISSIONER ATKINSON:  It has been wonderful to listen to you, thank you, and --- sorry, Chair, but --- to be in the same hearing room as Mr Collins has been a real privilege.

CHAIR:  Thank you, Commissioner Atkinson.

Commissioner Galbally, I will ask Commissioner Galbally if she has any questions --- even though of course she is not a lawyer, but nonetheless.

COMMISSIONER GALBALLY:  Thank you very much for your evidence.  I want to ask you about a statement you made, the adjustment of the workplace for everybody.  You know, you talked about the raising of chairs, people having breaks, all sorts of adjustments to workplaces for everybody.  And therefore, the adjustments for people with disability should be seen as part of just the term "adjustment", that's an individual adjustment.  I thought that was interesting because it was always been separated, "reasonable adjustments" and then "adjustments to everybody".  So I just wondered if you could comment further on that.

MR COLLINS:  It's becoming --- like I think that's more of a recent thing, having the  
different adjustments.  At Mallesons, for example, they offer any employee a height adjustable desk.  People have different chairs.  You know, I think it's --- I mean, I know I personally get stuck on the whole disability modifications, but you have to take a breath and take a step back and look around and go, you know, they are making adjustments for other people, it's not just me   

COMMISSIONER GALBALLY:  Yes.

MR COLLINS:  --- so that's kind of a change in attitude that I and the other people with disabilities have to go through.

Because, you know, as you say to the employer, it doesn't cost any more getting a desk for one employee to another.  To them it's just an adjustment.

COMMISSIONER GALBALLY:  Yes.  Thank you.

CHAIR:  Thank you.  Commissioner Ryan?

COMMISSIONER RYAN:  I have no questions, Chair.  I thank Mr Collins for making his presentation.  Thank you.

MR COLLINS:  Thank you.

CHAIR:  Mr Collins, I too thank you for your evidence.  I find it interesting that you have chosen to work in a notoriously difficult area of litigation.  The pressures of someone working in litigation, and I think you have already expressed that, are considerable in terms of the pressures, the time that is demanded of solicitors and others who are working in that field.  And you are also experiencing, you've told us, what some would regard as the tyranny of billable hours which characterise legal practice.  You've explained that at one point you asked for and without any reservations were allowed to work from home.  But your evidence suggests that you're extremely reluctant to take any further adjustments that someone in your position might well seek and be granted.  And that raises a question that we haven't really heard much about before.

We've talked about the need for employers to make adjustments, but that involves something reciprocal and that is, people with disability being prepared to accept adjustments that may be in their interests.  I'm just interested in whether you have any reflections on that.

MR COLLINS:  I think, given my experience with having a disability, I'm used to adversity and also I don't like feeling like I'm giving up.  So that's, you know, it's like a personal success story for me when I can --- when I just keep going at the same level and when I don't have to ask for anything different.  But you're right, I think, you know, in order for the right adjustments to be made, the people with disabilities need to, you know, be comfortable enough to ask.  And as with anybody, that's a work in progress.  People with disabilities need time to be comfortable with their  
disability and some, myself with the progression of my disability, it can be quite positive for me to --- you know, I feel like I'm, like I'm reaching my own --- like I set my bar pretty high, and so by doing what I'm doing, I'm reaching the bar I set for myself.

CHAIR:  Yes.  Thank you.  And thank you again, Mr Collins, for your evidence, and I'm sure on behalf of all Commissioners I wish you continued success at Mallesons and whatever else you choose to do with a legal career.  Thank you very much.

MR COLLINS:  Thank you very much.

MS ZERNER:  Thank you, Chair.

THE WITNESS WITHDREW

MS ZERNER:  Chair this now takes us to the break and we will resume at 10 past 11.

MS EASTMAN:  We've gone over time.  I don't think that should be an impediment that we take the 20 minutes for the morning tea adjournment, so if we come back at 12.20, Sydney time, 11.20 Brisbane time.

CHAIR:  Yes.  We will do that.  We will adjourn for 20 minutes and resume at 12.20 Sydney time, 11.20 Brisbane time.  Thank you.

ADJOURNED    [11.59 AM]

RESUMED    [12.22 PM]

CHAIR:  Yes.  Thank you, Ms Eastman.

MS EASTMAN:  Thank you, Commissioners.  I think I was speaking to myself here without anyone hearing, and I wanted to welcome ---

CHAIR:  No, Commissioner Ryan and I were listening.

MS EASTMAN:  Welcome back.  I apologise for that short delay.  We will return to Brisbane for our next two witnesses.  Mr Michael Pini is the next witness and Ms Fraser will take his evidence.

CHAIR:  Yes, thank you.

 
Mr Pini, good morning and thank you very much for coming to the Brisbane hearing room to give evidence.  If you would be so good as to follow the instructions of Commissioner Atkinson's associate who is in the same room as you are, and she will administer the oath to you.  Thank you.

MR PINI:  Thank you, Commissioner.

MR MICHAEL GERARD PINI, SWORN

CHAIR:  Thank you, Mr Pini.  Ms Fraser will ask you some questions and she is with you in the hearing room.  Just so as you are clear, Commissioner Galbally joins the hearing from Melbourne.  Commissioner Ryan is with me in the Sydney hearing room of the Royal Commission.

Yes, Ms Fraser.

EXAMINATION IN CHIEF BY MS FRASER

MS FRASER:  Thank you, Commissioner.

Mr Pini, your full name is Michael Gerard Pini?

MR PINI:  That's correct.

MS FRASER:  You've provided a statement to this Commission dated 19 November 2020?

MR PINI:  That's correct.

MS FRASER:  You have a copy of that statement with you?

MR PINI:  I do, Ms Fraser.

MR FRASER:  Are there any corrections or amendments that you would like to make to the statement?

MS FRASER:  No, there isn't.

MS FRASER:  The statement is true and correct?

MR PINI:  Yes, it is.

MS FRASER:  Commissioners, you will find a copy of Mr Pini's statement in Tender  
Bundle Part A, and I ask to tender this statement into evidence and that it be that it be marked Exhibit 9.15.

CHAIR:  Yes, that can be done, and Ms Fraser, I wonder if you can keep in mind just to go a little more slowly.

EXHIBIT #9.15   STATEMENT OF MR MICHAEL GERARD PINI

MS FRASER:  Certainly, Mr Commissioner.

Mr Pini, you have cerebral palsy?

MR PINI:  I do.

MS FRASER:  You have a Bachelor of Business (Accountancy) and a Graduate Diploma in Taxation?

MR PINI:  I do.

MS FRASER:  You are a certified public accountant?

MR PINI:  I am.

MS FRASER:  You have worked at the ATO, Mr Pini, haven't you, for 33 years?

MR PINI:  That's correct.

MS FRASER:  You've specifically worked in the Tax Counsel Network within the ATO since 2005?

MR PINI:  That's correct.

MS FRASER:  You have successfully worked your way up through the ATO in the 33 years that you've been there, haven't you?

MR PINI:  That's correct.

MS FRASER:  And what is your current position, Mr Pini?

MR PINI:  My current position is Assistant Commissioner   Tax Counsel Network.

MS FRASER:  Is the position of Assistant Commissioner   Tax Counsel Network at the ATO, is that one of the more senior roles?

MR PINI:  Yes, it is.
 

MS FRASER:  The Tax Counsel Network within the ATO undertakes the highest risk and most complex tax issues arising within the ATO; is that correct?

MR PINI:  That's correct.  We are responsible for the ATO's view on a range of issues within the ATO.

MS FRASER:  And how long have you been in your current role for?

MR PINI: Since  6 March 2012.

MS FRASER:  So almost 9 years?

MR PINI:  That's correct.

MS FRASER:  So you worked your way up to that senior position within, if my maths is correct, the first 24 years of being at the ATO?

MR PINI:  Yes.  That would be correct.

MS FRASER:  There's many different facets of the role that you fill at the ATO, isn't there?

MR PINI:  That's correct.

MS FRASER:  It's a senior position involving the provision of leadership in resolving issues within the ATO and with respect to tax law; is that correct?

MR PINI:  That's correct.  It's about providing technical leadership on a range of issues associated with the income tax and superannuation systems.

MS FRASER:  Which, as we all know, are very complex systems.  It involves interpreting and applying those complex tax laws; is that correct?

MR PINI:  That's correct.  And also applying it to a range of different scenarios.

MS FRASER:  So applying those complex laws to a range of different factual scenarios and circumstances?

MR PINI:  That's correct.

MS FRASER:  And in applying those complex laws, do you then provide advice on behalf of the ATO?

MR PINI:  Yes.  So that's both internally and externally.

MS FRASER:  So if we look at the internal advice that you provide within the ATO,  
is that provided to your colleagues in the appropriate way for them to interpret the tax law?

MR PINI:  That's correct.  So they would seek tax counsel advice on issues where the ATO's view, where the law might not be clear, they can see what is the ATO (unclear) to the particular issue.

MS FRASER:  So people within the ATO come to you for clarity about the way that they should interpret the ATO legislation?

MR PINI:  That's ---

MS FRASER:  The tax legislation.

MR PINI:  That's correct.  And we go one step further, about the way to apply that particular piece of law.

MS FRASER:  So advice in terms of interpreting and application?

MR PINI:  That's correct.

MS FRASER:  You mentioned a moment ago that you also provide advice externally.  Is that in the form of ATO rulings?

MR PINI:  That's correct, so --- and that part of the role is public advice and guidance, within that department we use --- through website guidance and platforms like that, and that is a part of the role, which --- in litigation matters we engage counsel as solicitors to run the cases and roles to assist the ATO on the law.  And we advise the ATO with the law, will assist counsel that way.

MS FRASER:  So two of the aspects of your external engagement is in providing those rulings as one part, and I think you also mentioned work with the website and using the internet as a platform to provide external advice.  But the next thing that you touched upon is your engagement with counsel and by counsel, you mean external barristers?

MR PINI:  That's correct.

MS FRASER:  Yes, who might be running cases for the ATO?

MR PINI:  That's correct.  And that involves the role of engaging with other stakeholders like our Treasury colleagues and the Board of Taxation.  There is also a panel that the ATO gives advice on the anti avoidance provisions, and that panel contains expert representatives as well.

MS FRASER:  Okay.  So in terms of some of the other external work that you do, what you were just talking about was some of the external advocacy work you do?
 

MR PINI:  Yes.

MS FRASER:  I understand, and tell me if I'm wrong, that involves external advocacy with accountants?

MR PINI:  Yes.  I probably wouldn't use the word "advocacy".

MS FRASER:  No, that might be a hangover from my other work with the Commission this week, so I apologise for that!

MR PINI:  I think a better word is "consulting".

MS FRASER:  Consulting.

MR PINI:  The ATO often consults with external stakeholders, so part of the role is to consult on, say, a rule or things like that, when there is exposure from legislations.  So the ATO does a lot of external consultation with the tax profession and hence the law profession and, you know, a whole gambit of use.

MS FRASER:  Sure, Michael, before we continue, I just want to let you know if you want to take a break, you let me know at any time.  Also, I don't want you to feel at all rushed answering my questions.  We spoke just before we started, we've got 40 minutes, and I'm very comfortable for you to take as much time as you would like.

CHAIR:  We are very comfortable in you taking as much time as you need asking the questions.

MS FRASER:  Thank you, Commissioner.

This applies to both of us, Mr Pini!  Now, coming back to the questions, what I understood from what you just said, in fact your work covers the full breadth of effectively providing that internal advice, providing external rulings, or making external rulings, and then engaging with the external stakeholders, namely accountants, tax advisers, lawyers and so forth to then effectively implement and explain the rulings that you've made?

MR PINI:  That's correct.  And also to provide public advice and guidance.  I would say recently whenever there's a tax law that's passed, people like public advice and guidance.  So that's a part of the role.

MS FRASER:  And given that you focus on income tax and superannuation, the extent of your outward facing public advice work and explanation of the tax system must be quite extensive?

MR PINI:  Yes.  I tend to agree with that.  And just to clarify, I don't do a lot with the superannuation system these days, it's predominantly income tax.
 

MS FRASER:  So while you might have had historical involvement with superannuation, you are more focused now on the income tax?

MR PINI:  That's correct.

MS FRASER:  Your position also includes both historically and the position that you are in now, you have had some involvement in the drafting of tax legislation?

MR PINI:  That's correct.  Prior to 2001, the ATO has carried or assisted the Office of Parliamentary Counsel in drafting legislation.  So I was in a role where I was assisting the Office of Parliamentary Counsel in drafting some of the tax laws.

MS FRASER:  Which must place you in a good position, having drafted it, you are now in a good position to help interpret it and apply it?

MR PINI:  That's correct.

CHAIR:  Actually that's a common misconception, Ms Fraser.

MS FRASER:  Mr Pini, you have always worked full time?

MR PINI:  That's correct.

MS FRASER:  Your role often sees you needing to complete work after hours?

MR PINI:  I do, but I'm always conscious of work life balance because the very nature of the role, there can be times which end --- a bit of extra work will be required, but the ATO is very good, they recognise that, and they say, "Okay, we could give you this time" where does it (inaudible).

MS FRASER:  So if I was to understand it, you effectively are an employee who does exactly what needs to be done to get the job done, and your employer, if --- if --- possible, will then adjust or make some slight adjustments to your workflow after that time when you've worked significant overtime?

MR PINI:  That's correct.  My personal advice has always been get the job done, and then you can take a bit of a break afterwards.  But, yes, by the very nature of some of our work, you've deadlines, legislation deadlines, things like that.

MS FRASER:  That personal philosophy that you just touched on, get the job done, do whatever needs to be done to get the job done, is the sort of personal philosophy that employers would like to see a lot of their employees have.  Would you agree with that?

MR PINI:  I would believe so.

 
MS FRASER:  And we have touched on the extent of the external engagement that you are involved in as part of your role.  And as a result of that external engagement, you are not in a position or in a role where you are permanently sitting behind a desk, are you?

MR PINI:  No.  By the very nature of the role, it requires going to different meetings and ---

MS FRASER:  And you mentioned meeting with barristers.  You do that at their chambers?

MR PINI:  Yes.  We sit on professional bodies.  At the can still be in the ATO, they can be out interstate, Sydney, Melbourne or Canberra.

MS FRASER:  And do you travel interstate to undertake that engagement?

MR PINI:  I do.  Although this year has been an exception.  But, yes, normally I travel but only when there is a need to, when they especially engage you with external stakeholders.

MS FRASER:  So when we're not living in a COVID 19 pandemic you would ordinarily undertake interstate travel as part of your role?

MR PINI:  Yes.

MS FRASER:  Speaking of interstate travel, the recruitment process for your current role saw you travel to Canberra?

MR PINI:  That's correct.

MS FRASER:  And I understand that you were interviewed by a panel of four people?

MR PINI:  That's correct.

MS FRASER:  As part of that recruitment process, did you ask for any particular accommodations or modifications in relation to the interview process itself?

MR PINI:  No.  I think the only other thing I think I requested was I would fly there the night before.  Given it was daylight savings, it would have been a very early start.  That was the only request that I had.

MS FRASER:  And we would say that asking to fly the night before an interview isn't necessarily a disability specific request but a request that anybody might have made?

MR PINI:  I think so, yes.  Asking someone to get up at 4 o'clock to get a 5.30 flight  
to Canberra for something important as a job is a huge   yeah, it would be challenge for anyone.

MS FRASER:  You wouldn't be likely to perform at your best, having been required to get up at 4 in the morning?

MR PINI:  Absolutely not, because when I'm tired, my speech tends to suffer a bit.  So to be able to go there the night before, to avoid that tiredness will affect the speech is very important to me.  I would like to have a ---

MS FRASER:  Glass of water?  Sure.  You let me know when you're ready.

MR PINI:  Thank you.

MS FRASER:  We were talking about whether or not there were any particular modifications or adjustments that you asked for as part of the interview process, and we got to the point where we had --- or you had mentioned one that I wouldn't personally consider to be a disability specific modification, and that was flying down the night before.  At the conclusion of the interview, you were asked, weren't you, whether you would like to put in a further written submission of 200 words to supplement what you had said in the interview.

MR PINI:  That's correct.

MS FRASER:  And you were offered this --- at the time when it was offered to you --- first of all, let me go back, you didn't know that was going to be offered to you?

MR PINI:  That's correct.  It was a complete surprise to me.

MS FRASER:  And when it was offered to you, it was at the conclusion of the interview, and it was explained to you that it was offered to you in the context of perhaps your speech had been a little slower, and to give you that opportunity to say what you might not have been able to say in the 45 minutes provided?

MR PINI:  That's correct.  Because, yes, the interview was only for 45 minutes.  So it was only fair that I be given an opportunity to put a further statement in to the committee.

MS FRASER:  And did you take up that opportunity?

MR PINI:  I did.  I did okay in the interview was my feeling, we could accept --- a senior position, you don't get these opportunities too often, so I did take up the offer and put in that further 200 word statement.

MS FRASER:  So while you didn't necessarily feel the need to because you felt that you had performed well, you saw it as a good opportunity --- we're going to come back to that word "opportunity" --- given the senior nature of the role that you were  
applying for?

MR PINI:  That's correct.  Because these roles, yes, because I made it all the way to the interview because as we know getting the interview is sometimes the most difficult part of any recruitment process.  So that's why I took up that opportunity.

MS FRASER:  Because you wanted to give yourself the very best chance of getting the job?

MR PINI:  That's correct.

MS FRASER:  So you would describe yourself as surprised but pleased to have received that offer?

MR PINI:  That's correct, because I never thought whatever is the (inaudible) any assistance that I didn't think I needed.

MS FRASER:  We're going to talk a little bit about that now, about the extent to which you are either able to or you personally have asked for any sorts of assistance.

So, just to recap, you've worked at the ATO for 33 years and you've been in your current role for 9 years?

MR PINI:  That's correct.

MS FRASER:  Given that it's quite a senior position, you would have applied for a number of different roles working your way up the ladder?

MR PINI:  That's correct.

MS FRASER:  And does the ATO have a system whereby an applicant like yourself or like any other person could identify that they have a disability?

MR PINI:  They do.

MS FRASER:  And how does that system work?

MR PINI:  Well, you identify it as a disability and then there's a further policy to request assistance.  And at the interview, should you give the interview.

MS FRASER:  So there's effectively two stages to the process.  The first is that you can identify that you've a disability.

MR PINI:  Yes.

MS FRASER:  And the second is that having identified, you can then request particular assistance?
 

MR PINI:  Yes.  I should perhaps clarify.  That was back in March 2012 ---

MS FRASER:  You haven't had to apply for another job since then!

MR PINI:  The general ---

MS FRASER:  Yes.

MR PINI:  --- at the ATO had a general principle where it provides whatever assistance ---

MS FRASER:  Necessary.  Michael, I'm particularly interested in your experience and what you did.  So is it that you have historically up until 2012 when you last applied for a job, did you check the box, so to speak, that identified that you've a disability?

MR PINI:  I did.

MS FRASER:  And having checked that box, did you then go further and at any time request any assistance or modifications?

MR PINI:  No.

MS FRASER:  Why not?

MR PINI:  I guess probably because of the general nature of being independent.  So I can do this, because I've been in the ATO for quite a number of years, people knew me.  So I didn't see the need to request that assistance.  Having said that, I would encourage people these days, if there is assistance, take it up.  But that was just a combination ---

MS FRASER:  Of your experience?

MR PINI:  --- of my personal experience.  I guess my need to be independent and also because I feel that the ATO was (inaudible) and even before that.

MS FRASER:  Just breaking that down, you told me that you didn't ask for those modifications or any kind of assistance because you have an overwhelming desire or a strong desire --- they are my words, not yours --- to be independent?

MR PINI:  That's correct.

MS FRASER:  And you also said that you didn't do it because you had worked at the ATO for a long time?

MR PINI:  That's correct.
 

MS FRASER:  But you also then did acknowledge that you would say "Do as I say, not as I do", so you would encourage people to seek that assistance if it's available?

MR PINI:  Absolutely.  Because it's difficult enough as it is getting through any recruitment process.  So if there's assistance provided, take it up.

MS FRASER:  Just coming back to what you said about, "I didn't ask for assistance because I had always worked at the ATO and I felt that they knew me well", the reality however is, Mr Pini, you've never asked for any assistance even when you started at the ATO, have you?

MR PINI:  That's correct.

MS FRASER:  And in your statement you say that you didn't do that because you were concerned that to do so would bring your disability into sharper focus?

MR PINI:  That's correct.  That statement has to be received in the context it was, yes, the idea that I would do my, you know, with training and instead of "Okay, you've got the job", you are still self conscious that you've got this disability, and that you didn't want to highlight it the wrong way and say "I need this" or "I need that", and go --- encourage people, it is a sad thing instead to think if you did need that assistance ---

MS FRASER:  To seek it out.

MR PINI:  --- to seek it out.

MS FRASER:  But it is interesting, the point that you make, in that a lot of younger people with disabilities, when they're starting their career, they might be at a different point in their own disability journey and maturity?

MR PINI:  Absolutely.

MS FRASER:  And they might be less likely to ask for those assistances or modifications?

MR PINI:  Absolutely.

MS FRASER:  Which makes it more important for the employer to draw out of them that information?

MR PINI:  That's correct.

MS FRASER:  Mr Pini, over the years that you've worked at the ATO you would have worked with a great number of people?  Is that correct?

 
MR PINI:  That's correct.

MS FRASER:  And you would say your colleagues have gotten to know you?

MR PINI:  That's correct.

MS FRASER:  You now lead a group of people at the ATO?

MR PINI:  I do lead a very small number of colleagues.  The very nature of the role requires leadership ---

MS FRASER:  Across the board.

MR PINI:  --- to a broad spectrum.

MS FRASER:  Your leadership applies to a broad spectrum of people within the ATO and you've a number of people who report to you.  Would you agree that working with you, and this might be a difficult question to answer because I'm asking you a question about what other people might think of you, would you agree that working with you is likely to have had a positive impact on your colleagues' perceptions of disability?

MR PINI:  I would hope so.

MS FRASER:  That's very modest, Mr Pini.  I would tend to say yes.

MR PINI:  Thank you, Ms Fraser.

MS FRASER:  Mr Pini, you don't experience any negative attitudes or bias against you in your workplace at the ATO on account of your disability, do you?

MR PINI:  That's correct.  And I would go one step further, Ms Fraser.  Whenever I'm dealing with externals, there is no form of anything to do with my disability.  Sure, we disagree on certain issues that require (unclear) disability and they will cover, I think that's important ---

MS FRASER:  So you ---

MR PINI:  --- work as well.

MS FRASER:  I'm sorry to cut you off then.  You would say that you have had positive engagements with both those that you work inside the ATO with, and when you go outside for your external engagement, while those people might not always agree with your interpretation of the tax law no doubt, you haven't experienced any negative attitudes or biasses as a result of your disability?

MR PINI:  No.  Absolutely not.
 

MS FRASER:  But that's an interesting distinction for us to draw, because what that tells me is that when people interact with you in a work setting, you don't experience those biases, you personally, but that is not always your experience in interacting in the broader community, is it?

MR PINI:  That's correct.

MS FRASER:  Can you tell me a little bit about your experiences interacting in the broader community?

MR PINI:  Okay.  I can give you two extreme examples, and I can give you two life experience but more common experiences.  In 2005 or thereabouts I was on my way to a meeting with the tax profession and corporate advisers to deal with the consolidation provisions in the Tax Act, so it was a serious ---

MS FRASER:  A serious meeting.

MR PINI:  --- serious meeting.  And in getting from the airport to the venue, I needed to get to that centre, the driver of the car that I thought he was being very helpful in explaining to me that a library is where you read books.  There was a prison and he explained to me that's where people are locked up and then when we came across the bridge he explained to me that was the big bridge.

MS FRASER:  Right.

MR PINI:  So I considered with that contrast, that I was coordinating to deal with the consolidation provisions of the Income Tax Assessment Act.

But the other extreme was I got my lunch and, yes, you get the usual questions, white bread, brown bread, et cetera.  I was asked, "Do you want butter? " Just to make sure I understand the question, the person did the buttering act.  And so, again, you go from that, back to your work.  They are very extreme examples of getting referred to the third person, and people address me in a loud voice.  So they're the most extreme.  But I think it gives you that context that the workplace, colleagues, on important matters, and five minutes later you are dealing with this.

MS FRASER:  Ill informed individuals, if I can call it that.

MR PINI:  Thank you, Ms Fraser.

MS FRASER:  Mr Pini, just to touch on the story about the person driving you to your meeting, who felt the need to inform you about what a library was or what a prison was or the existence of a large bridge, it strikes me that you told me that that happened in 2005 or thereabouts?

MR PINI:  That's correct.
 

MS FRASER:  And that tells me that that conversation had quite an impact on you because you now still in 2020 can reflect on that.  Would you agree with that?

MR PINI:  That's correct.  So suddenly, it's so unexpected and why I reflect on that, the person doesn't know what the position was.  Like, at that time I wasn't an Assistant Commissioner, but I was still, yes, so ---

MS FRASER:  You were in a senior position?

MR PINI:  That's right.  And I was supposed to meet with the tax profession to discuss, yes, the consolidation provisions in the Income Tax Act.

MS FRASER:  Mr Pini, I'm conscious of the time.  I would just like to finish up with a couple of comments and just a couple more questions for you.

Your career is a clear example of what can be achieved by a person with a disability in a workplace setting when they are given an opportunity.  And from what you've told us, it's your experience that a person with a disability who is given a workplace opportunity, that person will work just as hard, if not harder than someone without a disability in that same role.  Would you agree with that?

MR PINI:  That's correct.

MS FRASER:  And from my discussions with you, this is because in your view they will be careful not to waste the opportunity that has been given to them?

MR PINI:  That's correct.

MS FRASER:  Mr Pini, I would like to thank you very much for your evidence that you have given today, and I would like to finish up by asking you whether or not there is anything that you would like to tell the Commission that we've not covered off today.

MR PINI:  Thank you, Ms Fraser.

I would just like to quickly touch on that point of opportunity and attitudinal change which came through.  Maybe in a perfect world, if attitudinal change was able to take place, we wouldn't have to push the provision of opportunity to people with disability through courses.  But if we can't get that attitudinal change, we need to somehow provide more opportunities, because providing those opportunities will invite attitudinal change, and it will just happen organically, I would hope.

MS FRASER:  So without independent attitudinal change, in your view the only way to make that change is to give a person with a disability an opportunity, put them in the workplace, see other people interacting with that person in the workplace, see what they can achieve and the change will occur?
 

MR PINI:  That's correct.  Because their colleagues will see a person with a disability in the workplace.  They will go home to their children, their partners, their friends, "I work with people with a disability", and they go "Oh, wow."

MS FRASER:  The flow on effect.

MR PINI:  Exactly, so that would be my hope.  But I think we have to do something to provide those opportunities to get that attitudinal change going.

MS FRASER:  Thank you very much, Mr Pini.  I am going to pass you over to the Chair to inquire as to whether or not any of the Commissioners have any questions for you.

MR PINI:  Thank you, Ms Fraser.

CHAIR:  Thank you very much.  I shall ask Commissioner Atkinson who is with you in the hearing room.  I'm pretty sure Commissioner Atkinson is a taxpayer so she might have some questions for you.

COMMISSIONER ATKINSON:  Mr Pini, thank you very much for your evidence, and I must say that I think your giving evidence today, as well as your work, is helping to lead that attitudinal change that you speak about.  Thank you.

MR PINI:  Thank you, Commissioner.

CHAIR:  Thank you.

Commissioner Galbally, do you have any questions of Mr Pini?

QUESTIONS BY THE COMMISSION

COMMISSIONER GALBALLY:  Thank you very much for your evidence.  I'm just interested in your very last sentence in your statement, paragraph 23 when you say:

Whilst I have been afforded an opportunity at the ATO, there is scope for legal and policy infrastructure to open up the opportunities for people with disabilities to work.

And just thinking about the Australian Public Service rates of employment halving, you know, over the last couple of years, I just wondered if you had any comments about what you would like to see.

MR PINI:  Thank you, Commissioner.

 
I know the APS employment strategy for people with disability for Australia met last Thursday on International Day of Disability, and that strategy covers the years 2020 to 2025.  So I would hope that that strategy would be the catalyst to provide the opportunities, and I think it's good that the public sector seems to be leading the way in some of this work that provided these strategies.

COMMISSIONER GALBALLY:  Thank you.

CHAIR:  Thank you.  Commissioner Ryan?

COMMISSIONER RYAN:  I don't have any questions, Chair.

CHAIR:  Mr Pini, thank you very much for coming and giving evidence.  We are very grateful to you for having shared your experiences and in particular the journey you've had at the Australian Taxation Office.  I think as Commissioner Atkinson indicated, it's extremely important that we not only explore the barriers that face people with disability seeking to enter and remain (unclear) with us but we should also be exploring the opportunities that are available for people with disability and your evidence has allowed us to do exactly that.  So thank you very much.  We greatly appreciate your contribution to the Royal Commission.

MR PINI:  Thank you, Commissioner.

CHAIR:  Thank you.

THE WITNESS WITHDREW

CHAIR:  Ms Eastman.

MS EASTMAN:  We are still in Brisbane.  Ms Zerner is taking our next witness.

CHAIR:  Ms Zerner.

MS ZERNER:  Commissioners, the next witness is Ms Rachel Kroes.  She is appearing from Darwin in the Northern Territory by videolink.

CHAIR:  Yes.  We will just wait for Ms Kroes to appear on the screen.  Yes.  I think we have Ms Kroes now.

Yes, Ms Zerner.  What is to happen now?

MS ZERNER:  Firstly, Ms Kroes's affirmation can be taken.

CHAIR:  Ms Kroes, thank you very much for coming to give evidence to the Royal Commission.  I will ask you to follow the instructions of my associate who will  
administer the oath.  Thank you very much.

MS RACHEL JANE KROES, SWORN

CHAIR:  Thank you very much, Ms Kroes.  Now Ms Zerner will ask you some questions.

Just so you're aware of where everybody is, because it can be a bit confusing, Ms Zerner is in the Brisbane hearing room together with Commissioner Atkinson.  Commissioner Galbally, who I hope you can see on screen, is in Melbourne.  And Commissioner Ryan is with me in our Sydney hearing room.  And you are in Darwin which I assume you already know.

MS ZERNER:  Thank you, Chair.

Chair, at the outset I wanted to indicate that Ms Kroes's evidence will be provided in 2 parts today.  Part 1 will be her evidence comprising a discussion in regards to Ms Kroes's statement.  And also the respondents from Project 21 and we will talk about that in Ms Kroes's evidence.  That evidence will be taken in public, that is live streamed from the hearing room.  Part 2 will be evidence that will be taken in private which means that the hearing room will be closed to the public or the hearing in general will be closed to the public and this means that people following the broadcast will not be able to access the next section of evidence and can take the lunch adjournment as planned.  The hearing room will then be closed to all the parties with leave to appear for the second part of Ms Kroes's evidence being taken.  The hearing will be adjourned after the conclusion of part 2 of Ms Kroes's evidence.  So I turn now to part 1 of the evidence.

EXAMINATION IN CHIEF BY MS ZERNER

MS ZERNER:  Ms Kroes, can you tell the Commissioners your full name please?

MS KROES:  Rachel Jane Kroes.

MS ZERNER:  It's correct you've provided a statement to the Royal Commission?

MS KROES:  Yes, I have.

MS ZERNER:  Have you had the opportunity to review that recently?

MS KROES:  Yes, I have.

MS ZERNER:  Is it true and correct to the best of your knowledge?
 

MS KROES:  Yes, it is.

MS ZERNER:  You will find a copy of Ms Kroes's statement in Tender Bundle part A Tab 10.  I ask that her statement be admitted to evidence, and it be marked as Exhibit 9.16.

CHAIR:  That will be done.

EXHIBIT #9.16   STATEMENT OF MS RACHEL JANE KROES

MS ZERNER:  Thank you, Chair.  There is also an annexure to Ms Kroes's statement which is included in the Tender Bundle Part A at Tab 11 and I ask, please, that that document be admitted into evidence and marked as Exhibit 9.16.1.

EXHIBIT #9.16.1   ANNEXURE TO STATEMENT OF MS RACHEL JANE KROES

CHAIR:  Yes.  That can be done.

MS ZERNER:  Thank you, Chair.  Ms Kroes, you are the executive officer of Down Syndrome Northern Territory which is commonly called DSANT; is that right?

MS KROES:  Yes, that's right.

MS ZERNER:  You are based in Darwin, as I said in the introduction and you are responsible for establishing Project21 which I also referred to in the introduction?

MS KROES:  Yes.

MS ZERNER:  Can you please provide us a little bit of an overview of what Project21 is?

MS KROES:  Project21 is a post school based learning centre for people with intellectual disabilities so that they can have a pathway from Year 12 from school toward adulthood.

MS ZERNER:  And how was it started?  What was the impetus of starting Project21?

MS KROES:  My own daughter, who is now 25, she was in her high school years and I could see as she was coming towards the end that there was nowhere for her to go to further her education like her sister was furthering her education.  And I was really having limited choices as to where my daughter could go or whether I would  
even have to give up work to go back home to look after her.  So I set about thinking how can we extend the pathway from school but also incorporate some work training and some life skills training and some social connections so that she can continue on towards adulthood and working and contributing just like anybody else.

MS ZERNER:  And how did you start out?  Was there funding?

MS KROES:  No.  No funding.  And I had had this idea for a while and was trying to put it together and a couple of her friends came to see me and they hadn't got a job and that instilled me to look around the complex where my office currently was and to rent a couple of rooms and set about just putting desks and anything I could find in my home and other parents' homes together to make a learning environment.  And I then invited the Ministers and various Departmental heads of Health, Education and Business to walk through the environment with students working in there to provide an opportunity for them to see what post school learning could look like.  Fortunately they liked the model and gave me some seed funding to continue.

MS ZERNER:  And when was that, that you started that rudimentary process and where it's come to today?

MS KROES:  Yes, I mean that was in a small 50 square metre office in a shopping centre in a suburb in Darwin.  We've now got 200 square metres of classroom and kitchen and functioning classroom with lots and lots of lovely technology and things.  We've progressed really well in the eight years that we've borne from that tiny little place to now.

MS ZERNER:  And, Ms Kroes, you said 8 years.  So when it started at the outset, can you give us an idea of the number of participants and where it's at today?

MS KROES:  Yes.  I took the 2 young people who had come to visit me because they were soberest because they didn't have any work anymore.  I asked four other friends of mine who had adult sons and daughters in the age range that I thought that they would want something and I started with six students and one lecturer and myself.

MS ZERNER:  And it has grown to today.  Can you give us an idea of what the participant numbers are today and the resources available?

MS KROES:  We have 26 young people enrolled in Project21 now, all on differentiated pathways towards employment in some way.  But also connected through social and health and wellbeing activities and a total of 60 young people actually use the space for a whole variety of reasons.  So the space has manifest itself into other programs other than the Project21 culture.

MS ZERNER:  Just staying with Project21.  As I understand, there is also some social enterprises that are linked in some regards to Project21.  Can you just tell us briefly about those social enterprises?

 
MS KROES:  Yes.  The Down Syndrome Association Northern Territory started two social enterprises in 2013.  One was a container deposit recycling centre and also a recycling shoe shop.  Both of those were part of my thinking around we need a safe space to actually practice whatever we are learning in the classrooms to differentiate the work space but also to give a range of work experience, not just a one off activity that people would be experiencing, but a whole range, whether it was retail or recycling.  And so those two components add value to the curriculum.

MS ZERNER:  And the ultimate goal when we're looking at Project21 and the social enterprises, and I think you've said earlier in your evidence about getting people in to work.  So is it going through that pathway to get some sort of work as an outcome?

MS KROES:  That is the main criteria for enrolling in Project 21, is that that young person understands they want work and that the family understand that we are working towards work and independence.  So the social enterprise is a one stepping stone towards that because I don't have access to mainstream employment places where I can put young people for various hours in the day or shifts where I can expose them to a range of work opportunities.  They aren't available to me.

MS ZERNER:  And, Ms Kroes, I want to move away from the introduction of Project21 in regards to a recent survey you conducted on behalf of the commission with young people you worked with.  There was 12 young people enrolled in Project21 and they had the opportunity of having questions posed to them and having the collation of that data in relation to those questions.  That's right, isn't it?

MS KROES:  Yes, that's correct.

MS ZERNER:  And in your statement you've provided observations that you've made in regards to the responses the young people made in regards to that survey?

MS KROES:  Yes, that's correct.

MS ZERNER:  And, Commissioners, the responses of the young people are annexed to Ms Kroes's statement.  I don't need to go through those with you but there are a number of examples of responses from the young people to the questions that were posed.  I will focus on a couple of those questions as we go through further with Ms Kroes's evidence.  One of the questions was about the experience of finding work or finding a job and you've indicated in your statement that there was a commonality in responses.  So, for example, there is a number of references to the same retail store, those sorts of things.  Can you just explain why that is?

MS KROES:  That is because there is a transition to work programme happening in Year 11 and 12 for specialist education here in Darwin.  They have a range of work opportunities but they are very restricted and so the same places are used time and time again so most students will have a placement in one of those areas.  It's not necessarily an area of motivation for that student but it is to try and sort of simulate some sort of work experience.
 

MS ZERNER:  Thank you.  The questions that the students were asked, there was some data asked of whether they were working at the time and so one of the students was in full time wages, one on supported wages and two part time on full wages.  And three on part time supported wage, three on part time supported wage assessment at 50 per cent of their casual hourly rate and four were in volunteer positions with a potential to move to paid employment.  Taking that cohort and the question was asked in relation to how they feel about having a job, what was the sense of responses in regards to that feeling of having a job?

MS KROES:  So very positive.  And you can see that the responses to how you feel are eloquent and there's lots and lots of sentence construction in that.  It makes people feel very positive and happy and content and stable, mentally strong and resilient.  So they all enjoyed being able to identify with contributing somewhere in a workplace in their life.

MS ZERNER:  And, for example, if I just refer to one of the responses, it was:

It made me very happy.  At the laundry I had a friend at school I know, another person and I see my students at the shops and say hello.

So it was very much about feeling happy about being employed and having a job?

MS KROES:  Absolutely.  Because these young people see their brothers and sisters getting work, and they see their family members getting work, and this is a normal part of growing up.  So access to work is critical for their own self identity and self worth.

MS ZERNER:  Another interesting observation I thought in regards to the responses, and certainly if the Commissioners would like to go to it, but they don't have to, is at page 2 of the survey.  It was in regards to how they were getting a job.  And I noticed that four of the participants had indicated that "my mum helped me" or "my mum found me the job or my sister found me the job".  I'm wondering, in your experience, is that a common experience for people in this area of disability about finding employment?

MS KROES:  In my experience, yes, it is.  And it's because the other structures that are in place to find anybody a job have broken down, or they are inaccessible to this particular cohort of people.  So the parents need to actually fill this gap and do this role because there isn't anyone else who can do it.  So you are reaching out into your community networks, your own networks, and try and find, if it's not your son or daughter, somebody else's son or daughter, an opportunity for work.

But there aren't the structures there to enable them to get their own jobs and it falls to the family.

MS ZERNER:  Ms Kroes, I want to now move on to some barriers that you've  
identified, and that's through not only the survey, but your eight years with Project21, your work with DSANT but also having a daughter with Down Syndrome, and in regards to a number of barriers that you've identified in your statement, I wonder if we can touch on a couple of those, and just starting with that transition from school which was the impetus, as I understand, for setting up Project21.

Can you just tell us a little bit about that transitioning from school including, and this is touching on your evidence before about perhaps going into work experience, it was common to everyone?

MS KROES:  That's right.  There is nothing, and you really are --- leave Year 12, and for a young person with an intellectual disability, suddenly their life changes.  They've got no routine, no structure, they don't see their any friends any more.  My own daughter said, "Have my friends died?" because she didn't see them any more and they weren't in her life any more.  So the whole family dynamic changes post Year 12, and the family take back on that challenge of "What are we going to do now?"

So there is that that element that there is nothing there.  But the element is there to create educational pathways but they can't access those educational pathways for other people.  The work experience that they had at school, when they go to try to get the jobs, those places are either training work placements and we haven't tapped into what motivates this young people and skill them up.  So they lose out on both sides.  They don't have the opportunity to look at the jobs they want to do, and they can't go back to where they had the work experience in the first place, so they are left without anything.

MS ZERNER:  And because of leaving school, and I think you refer to it in your statement, is that some people, when they leave school, aren't necessarily ready for employment.  That, you know, there might be more time required with these people and learning.  Can you just explain that a little bit?

MS KROES:  Yes.  How can you go from a specialist centre which perhaps even has a fence around it and classrooms and where you know everybody in that environment suddenly to a mainstream environment?  That leaves somebody very vulnerable.  They do need to learn the skills of adolescence and adulthood of sitting alongside people they don't know very well, of being able to share or not share, ask a question.  These skills of confidence in their own sort of sense of being are not focused on post Year 12.  There isn't anywhere for them to learn those natural skills of adolescence that we all learn when we go to university or go into our jobs.

That's why I think that they need --- our young people need further extension around maturation, how the world works, how government works, how discrimination works, their human rights, a whole heap of curriculum activities that we can deliver to round out their knowledge about what they can contribute to in the first place, and what they want to contribute.

 
MS ZERNER:  And just in regards to their contribution, you have indicated that there is a lack of employment spaces.  So you might get through that maturation period, through that additional training, but then when it comes to places, and you refer to that, for example, even if you are going to a DES, that there is just a lack of opportunities.  Can you describe that a little bit and perhaps Darwin might have something to do with it, I think you're concerned to learn about the employment jobs that are available?

MS KROES:  That is right.  Darwin is a small market, at the end of the day, and both specialist schools do transition on 7, 8, 12 young people into the sector every year and the DES cold calls employers to try and find these placements.  That is too far a gap between leaving school and the expectation of having a job.  So we don't have the number and diversity of employers or spaces where these young people can naturally filter in, and especially when they don't have the skills to actually operate in a mainstream environment anywhere.  The gap is too wide and the opportunities too few.

MS ZERNER:  Ms Kroes, just in conclusion, and you've identified some barriers and the Commissioners have the benefit of your statement, but at paragraph 21, I don't need to take you to there, but it's your concluding paragraph and you say that:

Despite all of the barriers I have identified, young people with Down syndrome and other intellectual disabilities can and do engage with a process that support their learning and builds confidence and skills to achieve.

You make a reflection on the survey results there, and you say that from your perspective, when you're looking at that, that they want to contribute and they want to be a part of the workforce.  Is that right?

MS KROES:  Absolutely.  They see their brothers and sisters and other people and their YouTube favourites, all part of life.  And where is their opportunity?  They can and do understand and recognise that contributing is a really great thing to do.  So we need to keep that positivity from Year 12 until that point of time where they get their own employment position and find their valued place in society.

That's the gap that I'm talking about, and that's the gap that I've noticed, recognised and tried to create some structure to bridge.

MS ZERNER:  Thank you, Ms Kroes.  I'm very grateful for your evidence.  I'm going to move now on to part 2.  So we have addressed your statement.

Chair, I request that the following directions be made to ensure that the ---

CHAIR:  Just before we do that, perhaps I could ask, while we're still in public mode, whether any Commissioners have any questions?

MS ZERNER:  Quite right.  Thank you.
 

CHAIR:  I will start with Commissioner Atkinson.

COMMISSIONER ATKINSON:  No, thank you.

CHAIR:  Commissioner Galbally?

COMMISSIONER GALBALLY:  No, thank you.

CHAIR:  Commissioner Ryan.

QUESTIONS BY THE COMMISSION

COMMISSIONER RYAN:  One question.

Project21, is that a school leaver employment service, is that an example of one of those things that would --- it is something different and I take it your clients now access that service through the NDIS, do they?

MS KROES:  Yes.  We are not a DES or an ADE.  We do have clients now who can access Project21 through their NDIS plans.

COMMISSIONER RYAN:  Are you what is understood to be school leaver employment service?  Or is it something else?

MS KROES:  At this stage the SLES has not been utilised for Project21.  Historically it has been very much an ADE line item through NDIS.  We continue to explore that.

COMMISSIONER RYAN:  Thank you.

CHAIR:  Thank you.  I wanted to ask about funding.  Is that the only source of funding that you receive?

MS KROES:  Yes.  We no longer receive a grant for Project21, so our funding is dependent on what we as the Down Syndrome Association NT can raise, and some student fees we've done in the past.  The NDIS is obviously making an impact on our ability to stabilise and grow.

CHAIR:  Thank you very much.

All right, I will come back then to Ms Zerner.

MS ZERNER:  Thank you, Chair.  If I can now move on to part 2 of Ms Kroes's evidence, and in doing so I request that the following direction be made to ensure compliance with Non Publication Order CTH DNP 00064.  Part 2 of Ms Kroes's  
evidence is to be taken in private in accordance with the general powers of the Commission to ensure compliance with Non Publication Order CTH-DNP-00064.

Secondly, that the live webcast stream be ceased to ensure compliance with the non publication order.

Thirdly, parties with leave to appear be excluded from hearing room, including the virtual hearing room and realtime transcript, while part 2 of Ms Kroes's evidence is being taken to ensure compliance with the Non Publication Order.

CHAIR:  Thank you.

MS ZERNER:  Thank you, Chair.

CHAIR:  I will make those directions as requested by Ms Zerner.  They are done by reference to Non Publication Order CTH DNP 00064 which is a direction not to publish that was made pursuant to Section 6D(3) of the Royal Commissions Act 1992.  Yes.  Thank you.

MS ZERNER:  Thank you, Chair.

CHAIR:  Now, do you want to adjourn for a few minutes to allow this private hearing to take place?

MS ZERNER:  That would be very helpful, Chair, if you could please adjourn the hearing?

CHAIR:  We will adjourn for five minutes to enable the adjustments to be made.

ADJOURNED    [1.34 PM]

RESUMED    [3.02 PM]

CHAIR:  Yes, Ms Eastman.

MS EASTMAN:  Thank you, Commissioners.  I can see we have the 3 members of our panel on the screen, but just before we get to them, can I update the Commissioners and those following the livestream about the arrangements for this afternoon.  So we will start now, and our next session will continue for 45 to 50 minutes.  Then we will have a short break.  And then our final witness for the day will be Dr Lisa Stafford and her evidence will probably take us to around 4.30pm this afternoon.  So at this point I will hand over to Ms Zerner who is in the Brisbane hearing room to start our next witnesses and we have the panel of 3.  I'm looking forward to hearing their evidence.  Thank you, Commissioners.
 

CHAIR:  Thank you, Ms Eastman.

Yes, Ms Zerner.

MS ZERNER:  Thank you, Chair.  Our next witnesses are from the National LGBTI Health Alliance.  Can I ask their affirmation be taken first?

CHAIR:  Yes.  Thank you, all three of you, for coming to the Royal Commission, at least remotely and giving evidence today.  I will ask you please to follow the instructions of my associate who will administer the affirmation to you.

MS NICKY BATH, AFFIRMED

MR DANIEL COMENSOLI, AFFIRMED

MS HANNAH MORGAN, AFFIRMED

CHAIR:  Thank you very much Ms Bath, Mr Comensoli, Ms Morgan.  Ms Zerner appears in the Brisbane hearing room.  Commissioner Atkinson is in that same hearing room.  Commissioner Galbally, whom you can see on screen is in Melbourne and Commissioner Ryan is with me in the Sydney hearing room.  I will now ask Ms Zerner to ask you some questions.

EXAMINATION IN CHIEF BY MS ZERNER

MS ZERNER:  Thank you, Chair.

Just to begin with, could you each introduce with your full name and your role at the National LGBTI Health Alliance, please.

MS BATH:  My name is Nicky Bath, I'm the CEO.

MR COMENSOLI:  My name is Daniel Comensoli, and I'm the Policy and Research co ordinator.

MS MORGAN:  My name is Hannah Morgan, and I am the coordinator of the EmployableQ Project.

CHAIR:  You might need to get a little better sound, so I just wonder whether we can be given advice what should be done.  Is it possible to be closer to whatever  
microphone there is in the system that you are using?

MS MORGAN:  We will just adjust our table.

CHAIR:  Thank you.  It was a little bit hard to hear.

MS MORGAN:  We will try and speak up.

MS ZERNER:  Excellent.  Perhaps as we are going to one-on-one, certainly if someone needs to move into the microphone they can do that.  We will see how we go.

It's the case, isn't it, that you haven't provided a statement in relation to this hearing, but you've provided some submissions which have gone into the Commission.  But for the purpose of today, there was an outline of evidence that was agreed between yourselves to be put into evidence today.  Is that right?

MS MORGAN:  Yes.  That's correct.

MS ZERNER:  Commissioners, can I please ask that a copy of the outline of the National LGBTI Health Alliance, which can be found in Tender Bundle Part A at Tab 25, that this be tendered into evidence and that it be marked as Exhibit 9.17.

CHAIR:  Yes, the outline of evidence can be marked in that way.

EXHIBIT #9.17   OUTLINE OF EVIDENCE OF MS NICKY BATH, MR DANIEL COMENSOLI AND MS HANNAH MORGAN

MS ZERNER:  Thank you, Chair.  There are a number of annexures, there are 5 annexures to the outline which are included in Tender Bundle Part A at Tabs 26 through to 30.  I also request that those annexures are tendered into evidence, and that they be marked as Exhibits 9.17.1 through to 19.17.5.

CHAIR:  I think you meant 9.17.1 to 5?

MS ZERNER:  I do.  Thank you.

CHAIR:  On that basis, the answer is yes.

EXHIBITS #9.17.1 TO #9.17.5   ANNEXURES TO OUTLINE OF EVIDENCE OF MS NICKY BATH, MR DANIEL COMENSOLI AND MS HANNAH MORGAN

 
MS ZERNER:  Thank you, Chair.

What I would like to do today is really look at two parts of your evidence.  The first is really in relation to, I guess, some theory about intersectionality in relation to LGBTI issues and disability.  And in the second part I would like to explore with you a fairly new resource which was launched by the Alliance, is it okay if I call it the Alliance?

MS MORGAN:  Yes.

MS ZERNER:  By the Alliance on 4 November 2020.

Perhaps if I turn to you first, Ms Bath, as being the CEO.  Can you just give us a brief overview about the what the Alliance does and what it is all about?

MS BATH:  Thank you.  The Alliance is a national health peak organisation in Australia for LGBTI community controlled health organisations.  We provide health related programs services and research based on lesbian, gay, bisexual transgender and intersex and other sexualities, genders, bodily diverse people and communities.  We also have regular members, affiliate members, associate members as well as individual members, and we recognise that people's genders, bodies, relationships and sexualities affect their health and wellbeing in every domain of their life.

The Alliance's purpose is to provide a national focus to improve health and wellbeing outcomes for LGBTI people through policy, advocacy, representation, research and also capacity building, and we are working across mental health, suicide prevention, palliative care, ageing and aged care, disability and we have a broad policy advocacy agenda.

MS ZERNER:  Thank you, Ms Bath.  I understand there has been a recent name change, is that right, or about to be?

MS BATH:  Indeed.  Our AGM occurred just over a week or so ago now and we will be known as LGBTIQ+ Health Australia.

MS ZERNER:  Thank you.  I might turn to Mr Comensoli now and I just wanted to explore a little bit about this concept which we hear about of being minority stress in relation to the LGBTI community.  Before we get to disability, if we can talk about that minority stress, please?

MR COMENSOLI:  Yes.  Thank you.  So minority stress was a theory that was first posited by Dr Ilan Meyer, and it's a conceptual framework for understanding the significant health disparities that LGBTI people continue to experience to this day.  And it's just really helpful in explaining that when individuals are a member of a stigmatised minority group, that the disharmony, if you like, between those individuals and the dominant culture can be onerous, and the stress that derives from  
that process can be quite significant.  And so it's a really useful tool to explain that the unique stresses that we're persistently exposed to, the stresses include stigma, prejudice and discrimination, in combination they create quite a hostile and stressful social environment, and because of that, that then leads to the heightened instances of mental health issues and an increase to the disease burden for our communities.  Thank you.

Nicky, do you have anything to add to that?

MS BATH:  No.

MS ZERNER:  Just on that, in regards to that ongoing minority stress in relation to identity in regards to LGBTI, there is also this concept of sort of hiding identity, I guess in regards, because in some respects, for some members of the community, it's an invisible identity.  Is that right?

MR COMENSOLI:  Absolutely.  And I think there is research evidence that shows that for lesbian, gay and bisexual people, in the workplace they do engage in concealment strategies in order to avoid experiences of discrimination on the one hand and the need for self integrity on the other.  And on the subject of minority stress, there are some unique stresses that occur in the workplace for our communities, if I can briefly go over some of those stresses for the benefit of the Commission.

So the first one is actual experiences of discrimination that people face and that can be conceptualised to range from subtle forms, so for example, being excluded from workplace social events to more overt forms, slurs that occur in the workplace.  The second one is the expectations of stigma, and that arises from broader social cultural stigmatisation of LGBTI people more broadly.  And, third, there is internalised heterosexism, and that is the internal denigration of being LGBTI.  And lastly, as you alluded to, there is the concealment of identity or histories or experiences.  And what we see in the research is that there are three main identity management strategies that sexuality diverse people would utilise in the employment context.

And so the first one of those strategies is counterfeiting, and that really just refers to presenting a false identity that is not lesbian, gay or bisexual.

And the second one is avoiding, and that really just involves actively avoiding any discussion of their personal lives, their families, their relationships and also that involves maintaining quite strict boundaries around work and personal life.

And then finally there is also integrating, which is being completely open and honest about their identity and experience.

And I think it's reasonable to assume that we can apply that to transgender diverse people and intersex people in the workplace.  And what we see, when people utilise these concealment strategies in the workplace, we know that that actually results in  
poorer mental health outcomes and a decrease in job satisfaction and commitment.  And also, importantly, I think that constant vigilance around interacting with others in the workplace for fear of harm and expectation of rejection, that also results in poorer mental health outcomes.

MS ZERNER:  I’ll just pause you there, Mr Comensoli.  I just wanted to go back to the counterfeiting and avoiding and those particular issues.  There was a witness who gave evidence earlier in the week and he said that he was concerned about the clothes that he wore or how he did his hair because he was gay and he was concerned about that.  Is that what you're talking about in the sense of really not putting themselves out there as to what perhaps they may present themselves outside of the workplace?

MR COMENSOLI:  Yes, and I think that relates to just providing a safe, welcoming and affirming workplace environment regardless of one's sexuality, gender or intersex status, so yes, that's correct.

MS ZERNER:  And it's the case that we are talking here, before we get to a disability, so you're dealing with the issue of LGBTI identity and I wanted to pass to Ms Morgan and we are going to come to the EmployableQ Toolkit in a moment but part of that process was that you actually had a co design process and you were talking with people who are LGBTI and also had a disability.  And I'm just wondering from those people you spoke to, was that their experience in relation to the workforce issues that they faced?

MS MORGAN:  Yes, absolutely.  Certainly it was this constant navigation of what they could talk to people at work about, how they could present at work, disclosing or not disclosing which we will be hearing a bit more about today.  If you don't mind, I would like to use a quote that came out of the research with the co design team just to illustrate this point further and the quote is as follows:

There is this whole issue of having to decide am I going to divulge or disclose my disability or my sexuality or gender identity, and then you have to assess how is everyone going to respond.

So it is this context that is exhausting that goes into really showing up at work.

MS ZERNER:  Thank you.  And I think in the evidence outline, there is a quote there from an academic Goffman and the quote is:

To display or not to display, to tell or not to tell, to let on or not let on, to lie or not to lie.  In each case to whom, how, when and where.

So that seems to be what you are saying in relation to that constant decision making?

MS MORGAN:  Absolutely.

MS ZERNER:  And it's the case, isn't it, that in relation to coming out, it's not just  
once that someone comes out in the workforce, for example, but if there's new colleagues or there's a new event, et cetera.  So it's maybe multiple times that that needs to occur?

MS MORGAN:  That's correct.  So it's across different workplaces.  You know, it not just workplaces, though, it's someone's whole life where they are navigating these, I guess, really difficult communications if they are safe or not to share about the different parts of themselves.  And what we've heard from some of the research we did in our project is that people with disability, they see themselves sometimes as a burden to an employer.  There are many things to potentially disclose if they choose to and there are different needs that might need to be met in an employment context.  So it's really sometimes about making choices around disclosing one thing over another.

MS ZERNER:  Just picking up on that issue --- I will come back to you, Ms Bath, but just picking up on that issue of burden, Ms Morgan, we've heard evidence today from a young man who has a significant physical disability, and he was explaining that with that disability he felt like he had a burden.  But is it that you're saying that people that also have a disability with LGBTI and that identity, that that's compounding the issue of that feeling of being a burden on an employer?

MS MORGAN:  Absolutely.  That's correct.  I think it's important to say also that people don't always have the capacity to be open about their sexuality at work in addition to being open about their disability, and we do have to also recognise that to disclose or not to disclose sometimes isn't a choice for people.  So it is quite complicated.  There are very diverse experiences across the LGBTI spectrum as well as across the disability space as well so that needs to be acknowledged.

MS ZERNER:  Just with that, would that be for example a trans person or transgender person that can't perhaps pass off as their identified gender, is that what you are talking about there?

MS MORGAN:  Yeah, that could be the case, or someone with a physical disability where it's evident they do have a disability.  They don't get to choose.  But there are many, also, invisible disabilities where people sometimes mask their symptoms and they are having to maybe just endure the conditions of a workplace that might not be suitable to them, which has mental health outcomes.

MS ZERNER:  We've heard a bit about invisible disability, and we've touched on that and we've got visible disability.  But the same seems to be the case in the LGBTI community in the sense that we've got invisible identity, and then we've got visible identity, and it's the interplay of how that might roll out in the workplace and the acceptance of those people in the workplace?

MS MORGAN:  Yes, absolutely.  Even for myself I identify as queer, but I'm certainly viewed by society as heterosexual for the most part, so I perhaps wouldn't attract as much stigma and discrimination in the first instance.  But then also for  
myself, I'm wondering okay, how much do I say, when is that environment safe?  So again there's many individual components that need to be considered, and it's not just one, I guess, you know, lens that you can apply.  Everyone has different circumstances and there's different levels of privilege within each of those communities as well   

MS ZERNER:  Okay.  And when we are talking about invisibility or visibility and the concept of burden, is it your experience from dealing with those people in the EmployableQ Toolkit and development of that, that there was --- I think you may have referred to it, it's part of “Do I make this decision, do I tell them about my disability or do I tell them about my identity, do I tell them about both?”.  It's the constant mental chatter that people are going through.  Is that right?

MS MORGAN:  That's right, and I was actually speaking to one of the co design team members recently who wanted me to put forward to the Commission that they've actually experienced what they describe as almost Post Traumatic Stress Disorder from having to go from job to job to job, and encountering those barriers of discrimination.  For this person, they don't even feel that they are able to talk about themselves being LGBTI because they're just constantly navigating and they are feeling quite traumatised by the process of having to do this time and time again.

MS ZERNER:  All right.  I would like to move now, if we can, to the EmployableQ Inclusion Toolkit.  Perhaps briefly if we can just tell the Commissioners what it's about and if either Ms Bath or Ms Morgan, if you want to tell us a little bit about what it is.

MS BATH:  So yes.  I can talk to the outline and how we will be able to go into much greater detail, thank you.  So the Alliance entered into a partnership with Disability Employment Australia, and we applied for an ILC grant, and so it was an NDIS funded project called the Employable Q, and it provides --- the focus for the project was to be able to skill up LGBTI health organisations in being able to better engage with and employ LGBTI people with disability.  So the outcome really from that project was to increase economic participation for LGBTI people with disability.  There was a co design team that was established to ensure that all of the resources reflect the needs of people who are both LGBTI and who have lived experience with disability and out of the project and, as you've said, launched in November was the EmployableQ Disability Inclusion Toolkit.

MS ZERNER:  We will come to the Toolkit shortly, but I'm interested as to what was the impetus of actually starting this project, was there a need there you felt?

MS BATH:  Well, sort of sitting in my role at the Alliance, I certainly recognised that this is an area that we need to ourselves work within and also recognising that for many of our members, our core members, the LGBTI controlled health organisations who are often poorly resourced, this sort of resource would enable them to undertake different recruitment practices which are more in line for us to be able to engage with and employ LGBTI people with disability.  So it was certainly  
needs driven from experience and needs driven from being able to support our members, which is our role as a peak, and recognising that, you know, employment is a key issue for many across our communities and certainly to all members of our communities with disability.

MS ZERNER:  We will go to the Toolkit shortly, but is it something that other employers not necessarily LGBTI organisations, could have a look at and be used as a resource?

MS BATH:  Look, absolutely.  I think the tools are very transferable outside of the LGBTI health organisation settings.  One thing I would just note, with regards to that, the transferable nature of those tools is that we would advise for cultural training, to also sit around that for employers, around making employment and workplaces safe for LGBTI people.  The tool really focuses much more on disability rather than looking at LGBTI issues per se.  There is an added kind of layer that needs to occur.  And one of the reasons that I say that, and it's an issue that also comes around the discussions that we've been having around intersexuality, and that notion of risk assessment that happens in the areas of all of our lives, but work needs to be a safe place.  We spend most of our time at work, and at work I think we have our guards down much more than if we were in sort of like public places that we knew were unsafe.  And it's important to say that even for resilient organisations like ourselves with relative --- we are quite a resilient bunch, here at the Alliance we live in a co share environment and we are actually experiencing some issues for some of our staff with regards to things that are being said to them, the way that they are being looked at in the environment that we are working in.  And so those practices of the cultural safety in the workplace are really, really important so that people feel safe and able to bring themselves to work.

And I think, well, if that is our experience, given who we are, you know, within organisations whereby this isn't part of the wallpaper, that there, these are even more complex issues.

MS ZERNER:  As an organisation I understand you learnt some things out of this process and one of the examples was in relation to Disability Employment Services, that that's actually something that can be utilised by an organisation like yourself.  Is that right?

MS BATH:  Absolutely.  I think we have learnt a great deal.  Even basic things that we have been able to do better most recently in some recruitment rounds, even thinking about how we wrote job adverts and a whole range of things that really should have been enveloped as best practice in recruitment for our organisation, so it has been a really significant and appreciated learning curve internally, as well as the development of those.

So we're using those resources and the kits internally.  Just yesterday we were talking about how we delve into that more deeply and share our learnings as we go on that journey.
 

MS ZERNER:  I'm interested, you saw a need, you applied for the grant and you did that and that was organisational driven.  I'm just wondering, in relation to data and the intersection issue in regards to LGBTI people and people with a disability, and perhaps Mr Comensoli, you could address this, just in regards to data that is available of people suffering a disability who also identify as LGBTI community.  And I understand there is limited data, but perhaps you can tell us a little bit about that.

MR COMENSOLI:  I was going to start my answer by saying there is limited data around experiences with LGBTI.  I would say it's an ongoing issue for us, access to robust, accurate, timely data.  And despite that limited data and research, it is clear that LGBTI people with a disability experience worse employment outcomes and they are more likely to have no employment, less likely to have full employment, and tend to have lower incomes.  But just speaking more broadly, we do have a real lack of national population data collection with relevant LGBTI data indicators and that's really unfortunate because that data can actually be used to inform service delivery and planning.  And what we see is that we --- LGBTI people are not counted in the National Census, and that's really difficult for us because we actually don't have a clear picture of how many LGBTI people and LGBTI people with disability are in Australia, and that has a flow on effect.  And what we see is that we don't have those indicators in the ABS Survey of Disability, Ageing and Carers, and also the standardised disability flag for mainstream services.

And so the Alliance is really calling for a more LGBTI inclusive data collection practices because these are currently inadequate data collection practices, they perpetuate this cycle of invisibility, and (unclear) evidence based policy, this exclusion of LGBTI people with disability can actually lead to adverse public policy outcomes that fail to address the unique needs and experiences of LGBTI people with disability.

Just finally, I think as articulated in our submission that we provided, I think together with an LGBTI inclusive ABS survey and census, that will really help build a better picture of LGBTI people with disability in Australia, including their employment outcomes, and it will just help us understand the intersectional needs of LGBTI people with disability more fully in the workplace.

MS ZERNER:  Ms Morgan, I might ask you, I mean the lacking of the data but you actually had the opportunity of working with those 25 people with lived experience with disability, and I'm just wondering if you can perhaps give us some idea as to perhaps, for example, just 2 or 3 primary issues that you saw that these people faced, what were the challenges that they had?

MS MORGAN:  Yes, certainly.  I think primarily it's about accessing jobs so the recruitment piece was a huge piece for people.  Certainly there were lots of discussions around simple things that organisations can do which make recruitment a safer experience for people, and that's things like looking at alternatives to traditional interview processes, and also being quite explicit when you're advertising for jobs  
around what we can offer in terms of access and inclusion.

The second thing I think is about creating that culture of inclusion.  So what we heard time and time again is really the onus is always on the person with the disability or from LGBTI to actually educate others.  And that is incredibly tiresome.  And people then decide not to ask for what they need because they do need employment and they will forego actually getting basic access needs met.  So that's probably one of the second key issues.  Another issue I think that was raised as quite important is around the fact that there's a lot of work out there around disability inclusion, particularly in the workplace.  And what they really said to us was that "Don't be tokenistic, don't just adopt these templates, adopt these toolkits in a way that isn't thoughtful, that isn't consultative.  You actually need to bring a co design process into developing this work within organisations".  And that actually takes a lot of time.  It requires organisations to take the onus and actually get training in and it's really important that people with disability in organisations don't carry the burden of having again to actually educate others in that space.  So they were some of the issues that came up.

MS ZERNER:  Thank you.  I'm interested, and as I understand it, in regards to there are tools out there but in relation to the LGBTI Toolkit, why specifically for this community?  So why couldn't you just adopt another tool that may be available?  Why did you feel the need to have a specific toolkit for the LGBTI community?

MS MORGAN:  Yes, I think that's a really great question, and there's a couple of different reasons.

So it's really important for people to actually see themselves in the resources.  They see that they're represented, they can relate to the stories that are told or the case studies that are used, and also importantly that there are resources and tools that are also providing inclusive language.  So, you know, if you're reading stories or looking at, you know, the various tools out there, you don't really see how they can directly apply to you.  They are not relatable and they're not as relevant.  It's just like a real need for cultural competency around this intersection.  And it's important to note this is not the only intersection.  And, you know, you might see someone with a disability who is LGBTI who is also a person of colour.

So there are so many different variances and things to consider, but I guess this was the scope of the project work that we did do.

MS ZERNER:  Thank you.

Ms Morgan, just in regards to the development of the toolkit, I understand that you had workshop sessions and you talked about the experiences with people that were living with a disability and LGBTI and that there was a review of a number of resources, as I understand it, and looking at guidance on changes in improvement and accessibility checking.  So there was a whole process behind this toolkit and it brought those people along with you as part of that co design.  Is that right?
 

MS MORGAN:  Yes, that's correct.  We had a year to do the program.  And overall we spoke to over a hundred different people around this issue much so we had our established co design team who we met with regularly.  We ran roundtable discussions, we did one on one consultations for people who weren't able to perhaps engage in a longer process of co design.  We spoke with LGBTI organisations, Disability Employment Services, we also ran a survey to find out more about what people who work in LGBTI organisations think would be helpful.  So all that work together was really a lot of consultation, and also coming back regularly to the co design team to check, is this sounding right, does this seem like a good approach.

So, yes, also consideration of accessibility and ensuring that the work that we do is accessible.  And that was throughout the project, actually, that all the communications were accessible and the opportunities were accessible to actually get involved in the project.

MS ZERNER:  Sounds like it was an incredibly collaborative approach and task over that 12 month period.  I think what we would like to do now is go to the website with the EmployableQ and we might bring that up on the screen and we will go to the four pillars and discuss a bit about that.

MS MORGAN:  Yes, sure.

MS ZERNER:  So this is the website.  And if we go down, we will scroll right down to the bottom of the page in the first instance and we will go to the 4 pillars.

MS MORGAN:  Yes, I can speak to the 4 pillars.

MS ZERNER:  If you can just briefly speak to the 4 pillars.  Then I thought what we might do is play the video and then we will come back to the 4 pillars.  Perhaps give a brief introduction to the 4 pillars, we will play the video and come back to the 4 pillars.

MS MORGAN:  Great.  These are the 4 pillars, the 4 areas that we identified as being very important to create workplaces that are safe and inclusive.  Pillar 1 is creating a culture of (videolink interference).  Pillar 2, feeling safe in the workplace, Pillar 3, accessible recruitment and Pillar 4, access and adjustments at work.

MS ZERNER:  It's the case there are a whole lot of tools behind those.  I ask the operator if we can please play the video.

[VIDEO RECORDING PLAYED]

FEMALE SPEAKER:  I think this toolkit will help employers learn firstly just how many barriers already exist that are stopping people with disabilities from being able  
to get through the door, let alone be recognised and work and be able to contribute as fully as everybody else in the space.

MALE SPEAKER:  It's all about shifting perceptions and ideals and even changing how someone can perceive someone.

FEMALE SPEAKER:  It will allow them to go from "Oh we should probably employ these people because it's the right thing to do", to, "These people are, these employees are great assets to the team, we know how to include them."

FEMALE SPEAKER:  You need to practice what you teach.  If you are talking about inclusion of LGBTI+ people, then that means to include everyone, and that includes people with disabilities.

FEMALE SPEAKER:  Despite best intentions, many workplaces are struggling to be inclusive and accessible to LGBTI+ people with disabilities.  With many unaware of the scope of the problem.  Which is why we've created the EmployableQ Toolkit, a non prescriptive set of resources to help you make your workplace be inclusive, welcoming, and the safe space you know it can be.  Built upon the 4 pillars of inclusion, safety, recruitment and accessibility, and co designed by a group of dedicated LGBTI+ people with disabilities, the EmployableQ Toolkit makes accessibility accessible for new and existing employees within your organisation and helps to break down barriers so that LGBTI+ people with disabilities can find work and so that you can find your next great employee.

By gearing your recruitment process towards inclusivity and accessibility and by regularly checking in with your staff's needs, not only will you attract more applicants, you will encourage existing staff to bring their whole self to work, creating a better workplace and world for everyone.

FEMALE SPEAKER:  When you are a disabled person and you are LGBTI+ you are going to have both sets of marginality that interplay with your movement through everyday society, and that's also going to occur in the workplace.

FEMALE SPEAKER:  By using this toolkit I believe organisations are really sending a message that they want people like me there, and that they think we're worthy and I think we deserve to be able to connect with our peers and the broader LGBTI+ community.

FEMALE SPEAKER:  It's important to feel safe to bring your whole self to work, because if you can't you won't bring your best self to work.  Your whole self is your best self.

MALE SPEAKER:  We would be able to fit in well   

FEMALE SPEAKER:  Being able to fit in well.

 
MALE SPEAKER:  --- and all the (unclear) would be able to have someone like me.

FEMALE SPEAKER:  It's easier than you might think, and more important than you might realise.  Start by downloading the EmployableQ Toolkit today.

[VIDEO RECORDING ENDED]

MS ZERNER:  If we can go back to the website briefly, please, and scroll down to the four pillars.  When there was reference to downloading the EmployableQ Disability Inclusion Employment Kit, Commissioners I note that document 9.17.1 is that toolkit, and it is about 207 pages, but online it is accessible by just clicking basically onto one of the pillars, and I thought we might just do that very briefly.

If the operator can click on to pillar 4 which is access and adjustments at work, please.  Just to scroll down the page a little bit, please.  So what that does is takes you to other links, and what we might do is click on to 4.2, please.  And just scrolling up a little bit, please.

Ms Morgan, this particular tool, it's got the ability, isn't it, that employers can go into each of those pillars, and bring up resources they can use in the workplace.  Is that right?

MS MORGAN:  That's correct, yes.

MS ZERNER:  And this is an example of that particular --- in relation to index for access and there is a number of different tools and examples, and so just looking at the accessible documents, if we can zoom into that a little bit, please.

And so what we can see there is how to implement the adjustments, so there's tips and tools about that.  But then there's also costs and funding of implementation, et cetera, for that.  And that's just one small example of the sorts of tools that are available in that 207 page document.  Is that right?

MS MORGAN:  That's correct.

MS ZERNER:  Excellent.  All right.  Now, I guess that would be helpful if we could take that off the screen please and return to our witnesses.

I want to conclude with you, Ms Bath, as to, where to now?  You've got this resource, it's been launched, it's out there with the LGBTI community.  What's the plan for it?

MS BATH:  Well, two sorts of responses to that.  I suppose one is the implementation from the Alliance perspective and sharing that journey with others as we do that so that we can encourage uptake of the toolkit.  We will be looking for  
additional ongoing funds to encourage people to implement the toolkit, but we also need to evaluate it and make sure that that that evaluation is really rigorous, to see how it's working.  And then there's that issue we touched on earlier about broader rollout of how that can be a transferable product, given the time and energy that's gone in there to allowing and getting other employers taking and using the resource.  I think, as I said before though, we really need to mark for that toolkit, the EmployableQ Toolkit to be used by other, in other sectors, there really is a need for that cultural safety, inclusive practice training to sit for those organisations.  And I think there's like an ongoing other piece of work that we need to do around how do we get consistency and funding to support LGBTI people with disability through NDIS plans, et cetera, that high level advocacy work that we need to be doing and, of course, how will this sit then within the new facility strategy that will be coming our way.

MS ZERNER:  Excellent.  Thank you.  That brings me to the conclusion of the questions that I had for you.  So I'm very grateful for the time and energy and effort you've put in to providing your evidence today.  I'm going to hand back to the Chair to see if the Commissioners have any questions for you.

MS MORGAN:  Thank you.

MR COMENSOLI:  Thank you.

CHAIR:  I will start with Commissioner Galbally and ask if Commissioner Galbally has any questions.

COMMISSIONER GALBALLY:  No questions, but thank you very much.  I really found that very valuable.

CHAIR:  Thank you.  Commissioner Atkinson?

COMMISSIONER ATKINSON:  No, thank you.  I've got the website up on the screen and it's very user friendly.  Thank you.

CHAIR:  Commissioner Ryan?

COMMISSIONER RYAN:  No, thank you, Chair.  I too will have a look at the website.  It's most informing.

QUESTIONS BY THE COMMISSION

CHAIR:  Being something of a Luddite I like to have things in hard copy, and I think what I've got is one of the exhibits in hard copy.  I'm just looking --- I'm looking for example that a document that is headed "Employable engaging with Disability Employment Services", and it explains pathways to or from DES, Disability  
Employment Services.  Was that something --- is that text on those issues, is that something developed by you or was it something taken from another publication or in collaboration with someone?

I ask because it seems to be a clear exposition of some of the general principles that I've been quite anxious to understand.

MS MORGAN:  Yes, we worked in collaboration with MatchWorks, which is a disability employment centre, to develop that resource.  So it was a collaboration with them, and they guided us around to include in that and also provided very generously case studies for us as well, which actually captured the experiences of LGBTI people.

CHAIR:  So you inserted into the general proposition some examples that are specifically relevant to the LGBTIQA+ community?

MS MORGAN:  That's correct.

CHAIR:  And the same thing, I take it, can be said for the document which is headed "Access and adjustment request form" that contains --- I think it's that document that contains some quite detailed information on what access and that was done in the same way, was it?

MS MORGAN:  Yes, with research and consultation with other people from the disability sector as well.  So the consultation process was quite broad and we tried to integrate all that feedback into that document.

CHAIR:  Yes.  Well, that provides some very useful information on what job access can actually provide.  Speaking for myself, it's the first time I've seen it presented that way and it's very clear.

Thank you very much for giving evidence.  We appreciate your work and also your willingness to assist the Royal Commission.  So thank you very much for coming today.

MS BATH:  Thank you on behalf of us all for having us here today and shine the light on this very important part of our community.  Thank you for your time and for listening to us.

MS MORGAN:  Thank you.

MR COMENSOLI:  Thank you.

THE WITNESSES WITHDREW

 
CHAIR:  Ms Eastman.

MS EASTMAN:  We will just have a break for 5 minutes and return with our final witness for the day.

CHAIR:  Yes.  We will take that break for 5 minutes.

ADJOURNED    [3.47 PM]

RESUMED    [3.54 PM]

CHAIR:  Yes, Ms Eastman.

MS EASTMAN:  Our final witness today is Dr Lisa Stafford and I will just check whether she has made her way into the hearing room.  She is on her way.

CHAIR:  We will just wait until Dr Stafford comes on the screen.

MS EASTMAN:  There she is.  Good afternoon, Dr Stafford.

CHAIR:  Good afternoon, Dr Stafford.  Thank you very much for coming to give evidence to the Royal Commission.  I know that you are in Tasmania.  Just so you are aware of the arrangements that we have in place in the remote age, we have Commissioner Atkinson is in the Brisbane hearing room.  Commissioner Galbally whom you can see on screen, at least I hope you can, is in Melbourne.  Commissioner reason is with me in the Sydney hearing room, and Ms Eastman who will ask you some questions is also in the Sydney hearing room.

If you would be good enough please, Dr Stafford, to follow the instructions of my Associate, she will administer the affirmation to you.

DR LISA STAFFORD, AFFIRMED

CHAIR:  Thank you very much, Dr Stafford.  Now Ms Eastman will ask you some questions.

EXAMINATION IN CHIEF BY MS EASTMAN

MS EASTMAN:  Good afternoon, Dr Stafford.  Can I confirm that you are Lisa Stafford?
 

DR STAFFORD:  Yes, that's correct.

MS EASTMAN:  And your professional address has recently moved from Queensland University of Technology to Tasmania.  Is that right?

DR STAFFORD:  I'm still at QUT but just location change.

MS EASTMAN:  And you are a social scientist?

DR STAFFORD:  Yes.

MS EASTMAN:  A social community planner?  A human geographer with 20 years' specialisation in disability inclusion in policy, environment, infrastructure and services with a particular focus on children with disability?

DR STAFFORD:  Yes, that's correct.

MS EASTMAN:  And you hold a Doctor of Philosophy and your thesis was "The journey of becoming involved: The experience of participation in urban spaces by children with diverse mobility", and that doctorate was conferred in December 2013?

DR STAFFORD:  Yes, that's correct.

MS EASTMAN:  And can you tell the Royal Commission a little bit about what your particular areas of research have been following your doctorate?

DR STAFFORD:  So following my doctorate has continued in a similar area in terms of looking at, I suppose, the intersection between the social and environmental impacts on people with disabilities, particularly children and young people with disabilities in terms of their participation in every day aspects of life and that includes from education to employment to everyday participation in terms of having their voices heard in all matters that affect their lives, which is diverse.

MS EASTMAN:  The Commissioners have in their Tender Bundle B behind Tab 12 a copy of an outline of the evidence that you propose to give to the Royal Commission.

And, Commissioners, you also have a number of publications that Dr Stafford has kindly provided to the Royal Commission behind tab 13 through to tab 20 in the bundle.  So, Commissioners, could I ask you to mark the outline of evidence as Exhibit 9.18.

CHAIR:  Yes.

EXHIBIT #9.18   OUTLINE OF EVIDENCE OF DR LISA STAFFORD
 

MS EASTMAN:  And then the documents that accompany the outline, mark them Exhibits 9.18.1 to 9.18.8.

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

EXHIBITS #9.18.1 TO #9.18.8   ANNEXURES TO OUTLINE OF EVIDENCE OF DR LISA STAFFORD

MS EASTMAN:  Dr Stafford, I think we were planning on having over an hour, and I apologise for the truncated time, but it means I'm just going straight to the issues, I think.

DR STAFFORD:  Go for it.

MS EASTMAN:  So you've been involved in an ARC grant linkage project, and the end result of that research is the Seamless Journeys to Work for Young Adults with Disability.  That's work that started in 2016 and has continued through to the present time.

DR STAFFORD:  Yes, that's correct.

MS EASTMAN:  And the findings of your project was that young people with disabilities do experience unemployment and under employment, and the current social and employment systems for young people with disability that those young people face multi systemic barriers to employment that prevent secure work and financial independence as well as the pursuit of work and careers that are dignified, meaningful and promote social connectedness.

And your work, in terms of the research, reveals that while young people with disability are keen and motivated to have fair, decent work and pursue careers, their education to work transitions as it unfolds, you describe that transition process as chaos.  It occurs within, you say, an inhumane welfare to work policy, market based outcomes service systems within the current labour market of precarious work and this leads to conditions for exploitation, violence, abuse of young people with disability.  That's pretty strong finding.  As I said, I will go straight to the finding.

So I want to explore with you this afternoon, how did you reach such findings where you describe that transition from education to work as chaos, and that the systems are based on conditions that lead to exploitation, violence and abuse of young people?

All right, so to reach that conclusion you and some colleagues undertook some research, and the research had three stages to it, so can I just ask you to describe a little bit about each of the stages and how they unfolded?  So stage 1?
 

DR STAFFORD:  Yes, so stage 1, and I would like to acknowledge my colleagues, obviously, Professor Greg Marston, Dr Amanda Beatson and Dr Marianella Charmorro Koc, as well, because this is all a joint partnership, and all of the amazing research assistants that worked with us during this time.

MS EASTMAN:  We don't have a lot of time, but I don't want you to feel rushed.  And the interpreters are probably going to give me a little signal about slowing down myself so I will go a bit slower and can you join me in being slow?

DR STAFFORD:  Absolutely.

MS EASTMAN:  Stage 1?

DR STAFFORD:  For stage 1, what we did, we used a critical analysis policy and looked at the welfare to work policy, which has probably come up quite a bit, I would imagine, and the disability employment policy, and how that intersects with, I suppose, secondary school systems and tertiary education systems.  So it was a really deep policy analysis.  We looked at secondary outer facts such as submissions to the DES reforms that have occurred over a long period of time, and we also did in depth interviewing with 24 frontline workers and managers involved in the DES, or in policy related or advocacy roles in that stage 1.

MS EASTMAN:  And did you make any particular findings following stage 1, particularly around the policy and legislative framework?

DR STAFFORD:  Yes, absolutely.  And that's where the chaos fragmentated, I suppose really unfolds.  And that's not new, this has been identified in a significant amount of studies previously to us.  And that's not just a tradition in Australia, it's also shared by other OECD countries in terms of that fragmented transition.  And so that was a significant problem.  So when you've got State and Federal systems like our education and we've seen through already --- inquiries on education, we've already seen how segregated education, but even for many of the young people we spoke to later on, they were in mainstream schooling and still did not have conversations about careers, having transitioned before Year 12, setting up expectations that, you know, not only work but you can have careers.  There are really important stuff.  So this isn't happening.  And there is a range of that, it's not just one school or a single school.  It's the way in which the system understands and positions not just people with disabilities but particularly young people with disabilities.

One of the key areas, because we still see transition as such a narrow time space issue when we know that transition takes much more longer, it's more complicated because of the type of --- we are now in a precarious work environment, we are in a post industrial economy where knowledge and service industries are key.  So we've still got policies that haven't almost caught up to date with what the current situations are, but requiring and mandating people to comply with stringent, archaic  
and what we said is almost undignified and inhumane process through welfare to work, mutual obligation, and these are a really compounded problems.  At the same time    

MS EASTMAN:  Can I ask you a couple of questions there.  So earlier this week we heard some evidence to try to connect the situation perhaps for a young person with intellectual disability leaving school and how and why a young person might transition into an ADE or to DSP or to DES and/or how does the NDIS fit into all of that if the person is also an NDIS participant?  And I think our attempts to sort of work through those processes led to, perhaps chaos is your word, but a great deal of confusion?

DR STAFFORD:  Absolutely.

MS EASTMAN:  So one of the issues that comes out of your research is to pinpoint a young person towards those final few years at school and to ask what transitions are available to work, and the transitions to work might take that young person into a segregated or closed working environment, but it may also take the young person into a system, a series of systems that are aimed to achieving employment in open employment, but the process of transition through a DES, perhaps through a school leavers program or perhaps through a DSP program where the person also has to be assessed for their work capacity, depending on the nature of that young person's disability, there are a number of different avenues and paths that they might have to follow before they'll get to open employment, or, if they've gone down the other pathway, remaining in the segregated closed employment.

I'm trying to, without getting into the myriad of detail, but just give an overview when we're talking about transitions to set some framework.  How have I gone in explaining that?

DR STAFFORD:  Look, not too bad.  Not too bad.  I mean, some of the technical stuff about how you're streamed, and the types of --- they call it streaming, so if you leave school and you weren't picked up in an early school leaver program sort of DES, what you will be doing is you will have to go through an assessment process which you've already made mention of, the job capacity assessments and those sort of things.  And that's to determine under that policy what your work capacity is.  People talk about the over 8, and then there's the benchmarks over 8, and then there's different components to that.  And so depending on where you sit in terms of someone's external independent assessment of you where you've got not much control or determination over that, you can be streamed into either a DES, so more intensive support, or Jobactive.  So if you have over 8, you still have a mutual obligation but the mutual obligation of what you have to do in work to actually keep your income support --- we call that the stick approach --- that will depend.  So a young person 19 could end up with a 30 hour benchmark to have work, 30 hours being you need to achieve the 30 hour work outcome.

That in itself is a really complicated process and it's all dependent on, this may be an  
hour conversation you have with someone who don't know you at all, who are asking some weird questions, that if you are a young person --- and many young people haven't had these experiences of work before because at school it's so hard to get a part time job, there's no support systems, so DES can't actually provide support while you're at a secondary school to get a part time job.  There's none of that.  That might change with the NDIS but that certainly wasn't within the scope of our study at that time.

So, yes, this is your reality, so it's a really complex stuff.  And this is why, you know, there is so much research that has come out of not just Australia, but we've got a lot in the UK that have actually highlighted there are serious concerns of work capacity assessments.

MS EASTMAN:  Can I just stop you on that.  Because when you're talking about work capacity assessments, you are looking at a process that assesses the person with disability in terms of their capacity to perform some work?

DR STAFFORD:  If you don't get picked up before   

MS EASTMAN:  If you're not otherwise filtered out along the way ---

DR STAFFORD:  If you are a recent school leaver.

MS EASTMAN:  That process of doing a work capacity essentially involves a medical assessment about a functional capacity to take on different types of work or perform different functions.  Is that right?

DR STAFFORD:  It's not so much a medical, it's not --- your doctor is not writing, it is some external person that may be an allied health professional asking some instrument questions of you to determine maybe your work experience.

MS EASTMAN:  It has got a medicalised flavour to it, does it not?

DR STAFFORD:  Absolutely.  It's based on a medical model and it's also based on this idea of professionalism where other experts get to tell you what you should or shouldn't do, and that's a serious concern.  Particularly it contradicts the Convention of the Rights of People With Disabilities.

MS EASTMAN:  So one of the concerns is that for a young person who has no experience of workplaces, and that might be a sort of social, cultural experience of a workplace as well as what doing work might mean, but it can be very tricky for a young person, going through an assessment, to even be able to answer the questions that might be asked of the assessor, to then make a reliable conclusion about that person's capacity to work.  Isn't that right?

DR STAFFORD:  I think it's any person in that situation.  I mean, young people are amazing and highly motivated and quite good at articulating what they need, but  
that's according to how it's framed.  And we still have weird ideas about what work looks like.  It's old ideas about how work has to be constituted as well.  So, you know, for a young person that might be thinking about signing like a start up or something more contemporary, you know, when there's different or structured ideas about work, that itself can be problematic too.  Not to mention a complete stranger --- and one of the findings we found from talking to, you know, the frontline workers or managers, particularly in regional areas, their face to face is disappearing so you may have an assessment by phone by a complete stranger.  I don't know any of us in this room, how we would feel answering those questions let alone the seriousness of what that can determine.  If you are under 8, it can write you off, and if you are over 8 or given a steady hour, it can set you up to fail.

There is reform acknowledging these issues back in 2016, that there was concerns about how the assessments were happening and the type.  So, yes, it is known.  And if people want to know more, there is well established data that is out there.

MS EASTMAN:  All right.  Let's move to stage 2.  So stage 2, that was completed last year, and into the early part of this year.  Is that right?

DR STAFFORD:  No, the year before I think.  The years are merging, aren't they?  After this year it's a blur.  That was 2018, Dr Amanda Beatson led that stage.

MS EASTMAN:  That stage 2 involved doing a survey of 200 young people with primary, physical and neurological disabilities?

DR STAFFORD:  Yes.

MS EASTMAN:  So the purpose of the survey was what?

DR STAFFORD:  So for our all whole project we have been focusing in on physical and neurological, because there is so little research into that --- also recognising that we just don't fit nicely and neatly into those categories either.  We have a dual disabilities and intersecting needs.  But that was our primary focus and hence why the survey targeted that area.  A lot of people did have dual conditions as well.

The idea was to start hearing the young people's voices, we had the frontline workers, managers, CEO, advocacy and all the policy, and it's about understanding what people's own lived realities and experiences were.  The survey sort of gave an overview, looking at a whole range of different factors that we talked about that was identified from stage 1, but also looking at --- we also have qualitative responses and so the submission we have submitted has pulled out some of that really rich, I suppose, to qualify what does it mean to actually --- that a young person wants or is having a better attitude to that space.  We are able to qualify some of those outcomes as well.

MS EASTMAN:  Just to finish the three stages, what did the final and third stage involve?
 

DR STAFFORD:  So the final stage deliberately did a really deep, what we call, a phenomenological research where it is more cohort of people and map the detailed stories taking people from secondary school almost through to the contemporary situation about the intersecting processes and what they have been exposed to and experienced.

And importantly, a lot of what people have done to work around the systems.  Or create their own pathways against a lot of the barriers that they have encountered.

MS EASTMAN:  I want to move to some of the system levels practice that you found can give rise to exploitation, violence and abuse, and there is some interesting expressions which we've seen in some of the material that has been available to the Royal Commissioners thus far, but I'm going to get into some of this language.

DR STAFFORD:  Yes.

MS EASTMAN:  So one aspect of looking at the system level practice was that your research identified that across the stages of the research that you did, you saw marketised outcomes based in service models that then resulted in particular practices.  A churn, a creaming or a parking and also bulk service delivery.  So can I take each of these expressions in turn.

DR STAFFORD:  Absolutely.

MS EASTMAN:  Let's talk about creaming.

DR STAFFORD:  Creaming ---

COMMISSIONER ATKINSON:  I'm sorry, can I just interrupt.  Is this in paragraph 16 of your statement that you refer to those, the outline of evidence?  Where you talk about churning, creaming and parking?

DR STAFFORD:  What point is that, sorry?  What number?

COMMISSIONER ATKINSON:  Paragraph 16 of your outline of evidence?

DR STAFFORD:  Yes, yes.  Correct.  And it's also articulated in the stage 1 report and also a couple of publications as well.

MS EASTMAN:  Perhaps if it helps the Commissioners in the documents that you've got, and I might use this as a little bit of a structure for this afternoon, you've a document behind Tab 14 in the Tender Bundle which is the submission that Dr Stafford provided to you with others, to the Royal Commission on 14 August.

DR STAFFORD:  That's correct.

 
MS EASTMAN:  And if you turn to the page number, which I will just use the content manager document page number, which is D20/43146, that may help the Commissioners and I will use this to walk through the concepts of creaming, parking, churning and bulk service delivery, if that helps the Commissioners.

CHAIR:  While you're there, phenomenological ideographic counts.  I'm sure Senior Counsel knows what that means, but some of us need enlightenment.

DR STAFFORD:  Look, it just means it's people's --- it's a deep sort of discussion and conversation that actually tries to understand not just what people have experienced but how they make sense of their own experiences.  That's really important because we all know what we experience can be different to other people's experiences, so when we're trying to understand meaning and impact, that it's actually understood from people's own lived experiences and their own interpretations.  Not us putting an interpretation over it, making an assumption.

CHAIR:  Thank you.

COMMISSIONER ATKINSON:  It would help me if you told me what exhibit number that is.

MS EASTMAN:  Just give me a moment.

CHAIR:  The reference to phenomenological ideographic ---

COMMISSIONER ATKINSON:  No, not that.  The document Ms Eastman wants us to look at.

MS EASTMAN:  It is Exhibit 9.18.2.

COMMISSIONER ATKINSON:  Thank you.

MS EASTMAN:  It's behind Tab 14 in the Tender Bundle.

COMMISSIONER ATKINSON:  And the page reference again, sorry?

MS EASTMAN:  The document itself is not paginated.  There are some pagination in the top right hand corner which ends with 006, or in the top left hand corner 43146.

COMMISSIONER ATKINSON:  Thank you.

MS EASTMAN:  Dr Stafford, let's get back to where we were which is the expression "creaming".  What does that mean in the context of a young person transitioning to work?

DR STAFFORD:  It can actually be --- I'm sorry.
 

MS EASTMAN:  Go ahead.

DR STAFFORD:  It can be any person with a disability.  And this concept is not new to this study.  It's actually a well accepted language and concern not just here but in other OECD countries.  And essentially what it is, and particularly in a market environment that is based on outcomes and outcomes according to benchmarks and we play on those, it puts pressure into the system.

So the reality is what people talk about is the practice of creaming involves working with individuals most likely to work.

MS EASTMAN:  So if you've got a cohort of people with disability and you want to find work, then the practice of creaming is looking at the person who is probably going to be most likely to be employed and who most likely has the collection of skills that makes them attractive to the employer?

DR STAFFORD:  Yes.

MS EASTMAN:  So that the provider then says, "Let's get that person in to work."  And so this selection of those who are perceived, whether justifiably or not, are going to have the priority in terms of placements of jobs and job opportunities.  Is that broadly what creaming means?

DR STAFFORD:  Yes.  And based on the type of work that is available at the current time.

CHAIR:  In Australian terms, it's getting paid for low hanging fruit.  That's what it means?

DR STAFFORD:  Yes.  Exactly.

COMMISSIONER ATKINSON:  Or skimming the cream off the milk.

DR STAFFORD:  That's the other one.

MS EASTMAN:  Parking?

DR STAFFORD:  Yes.  And so what happens is so the people who are the furthest away from being ready to be placed or employable, that's the words they've used, according to this rigid system, let's put it that way because that's not always the case, then, yes, you are sort of parked.  Or for people with more complex issues and some of the young people that we were speaking with certainly experienced parking.

MS EASTMAN:  Is this because the system does not build in an incentive to assisting people with disabilities who may present as difficult to find particular jobs or to place?
 

DR STAFFORD:  Well, it's the different iterations that have happened over DES.  You know, it has been tinkered around and reformed that many times.  At the moment it is so much based on outcomes because one of the problems was they were worried about people being churned through the system, so being placed and not kept in the job for long and then coming back into the system so they've shifted on outcomes that way.  That means there's not a lot of support to be going into early days to doing the intensive work because of the shifts in change.  So that's one of the complexities.  There is also --- we've also still got a cultural issue around disability.  You know, our attitude, the stigmatisation around not just disability type but severity and stuff like that.  So, you know, there's a real cultural issue as well and we can't fix the system, we've got to address the attitude problem that we have here as a society.

MS EASTMAN:  But the aspect of churning, Commissioners heard this earlier in the week, but churning seemed to be quite a feature of the DES system, particularly if the support for the person with disability was limited to a 26 week period.  So is that the reason for churning or is there something else in terms of the marketisation approach that leads to churning?

DR STAFFORD:  Well, it's also the fact that we've got precarious employment.  Casualisation is a significant issue and we still haven't dealt with that in Australia.  We think it's fine.  But that leads to insecure employment.  So if you've got --- so I can read some of the stories from the young people.  I think that's more powerful than me talking about it.  But just an example of the parking, this was one of the young men talking to us, I went to the employment agency, I explained the idea about his job idea.  Second interview with the employment agency said it was not worth me getting a paid job because I would get next to nothing.

So this is what we are dealing with.  This person had higher support needs so it didn't sort of happen.  The other example that I just mentioned about the casualisation, I'm just going to flick to their accounts because I think that's really important.  Is, you know, you may have a job for 3 months but you've been unemployed for another 9 months before that and then, you know, get excited and the work dries up and so that f4 month contract might end up a 2 month contract.

So this is the reality of what's happening on top of the pressure that our welfare to work policy has on these young people.  And so this is the reality as well.  So it's not just the problem with DES and the churn in terms of the 26-week outcomes in a market base, that's a problem, but we've got precarious work that leads to a whole range of undignified and at times even exploitative processes that some of the young people shared with us.  Sorry.

MS EASTMAN:  Did you have one of the examples of young people telling you about the experience of churning?  Did you want to share that with the Commissioners?

DR STAFFORD:  Yes.  I'm trying to find it.  I had everything tabbed.  I apologise  
for this.  I will share this one while I find it because I think this is also really important for us to think about if we want to address the systems, I should say.  But one of the issues is also around choosing work and this precarious employment.  Because the other issues that they've got to deal with is depending if you're on Centrelink or JobSeeker or Newstart, what the young person is doing, if you're streamed into that, you are in a quite serious poverty sort of experience.

But then also for another young person, she shared this experience with us.  So it's not just about work and thinking about the casual sort of situation but it's also “do I work enough to actually then keep my pension because what's my safety net, if in three months time, which is my previous experience, I'm losing my job.”  So I'll read this example and then the implications on housing.  She talks:

I've got to balance out working enough so I earn enough but then I've also got to balance out earning under the threshold to keep my pension, and I've also got to balance out earning under the threshold to stay in this unit ....

Now that's an accessible housing support unit:

.... because there's like a $609 a week limit on how much you can earn and that's a pension and employment so it doesn't leave me a lot of options.  Yeah, it's also doing hours to satisfy all the requirements of my pension but not over working myself as well in terms of my own needs.  Then I've got to factor in how far it is and transport costs so there's all these different variables.

Now, this is a 21 year old talking about what she has to do to sort of navigate with the policy and rules that we've created as an Australian society.  So that's just an example of the complexities.  And transport is a significant issue and it has come up in the survey respondents and it also came up in the own individual stories that that's a real issue, particularly for regional areas and we don't, you know, really acknowledge that.

So the other example about the --- there is also the devaluation that happens as well and the ongoing volunteerism that it doesn't lead to work.  That's another issue.  So that's happening.  So in the evidence there's actually some examples from the young people that I think was under 32 in the submission that actually highlights some of that stuff.

MS EASTMAN:  If you can't find it, I can look it up for you in a moment.

DR STAFFORD:  Is that all right?

MS EASTMAN:  That's fine.  I'm conscious of the time.

DR STAFFORD:  I just had to fix it.

MS EASTMAN:  So bulk service delivery, which is really just mass movements of  
young people?

DR STAFFORD:  Absolutely.  Exactly.

MS EASTMAN:  What we might call job lots.  What I wanted to focus on now and in conclusion, and thank you very much for the really detailed work that you've done and we've got all of the articles, is you've really been able to encapsulate what the barriers are from a systems based approach and you've also looked at those barriers that arise from the welfare to work and then how different schemes themselves create some confusion.  From the research you've done, where do we go forward?  As you say, there's been so many reviews of DES and these systems.  Is there a pathway out of this that make the processes more simple and straightforward and frankly person centred for young people seeking to make that transition from school to work, particularly work in open employment?  So what's your solution to all of this?

DR STAFFORD:  Well, and I think the solutions lie in what people have already done.  Some of the young people are trying to work around the system and have done that.  A young man, you know, gave a really good example about using his self --- he did his own self directing of funds to actually create his own niche.  And the intent, because of the failed system, he was devalued, had horrendous situations, had done all the training, done Cert IVs and had 2years of demeaning experiences, so decided and was inspired by role models of others, that he saw --- you know, started creating their own business.

Their business wasn't originally about work, money, and this is the thing that we have to really fix in the system is how we conceive work.  It's not always just about making money.  It's about a whole range of stuff.  We've heard about identity, we've heard about connectedness and community.  This is what the young person shared with us.  It's about them being known as the person, not the guy in the wheelchair.  This was a way of doing that, but with self directed funds they were able to get a team of people around that believed in the vision and goal, and supported that person to achieve that.  That's very different from being told "You can do this and can't do that".

Choice and self determination is what we have to get sorted.  It has to go back to people with disabilities and has to be led by people with disabilities in terms of shaping policy and the programming about how that support happens.  We have to have full systems.  We can't keep in what has happened in the last 20 years.  I mean, I used to be a practitioner, I worked in Government, so I've had that hat as well.

So, you know, the erosion of being able to provide multiple service supports to a person, you know, we've eroded that and we've siloed everything.  "You're getting this, you can't get that".  That has created the problems of fragmentation and chaos that we've seen.  It's about how we perceive work, why can't we be supporting start ups, why can't people be supported to do self business if that's their choice.  It's also about careers.  We have to start talking about career and a lot of the research  
shows it has to be early on.  And that's what we found in the stage 1 as well.

It can't be just NDIS because not everyone is eligible for that.But we can learn from that in terms of self-determination or those models, flexible models where people are behind the driver's seat, and can determine their work goals, whatever that looks like.  But that's going to be a long way off.  But there are solutions, there are examples.  Networks are so important, whether that's peer networks, leadership, supporting people in those leadership roles.  There's a whole pathway.  But we are so outdated with how we understand transition.  It can't be 2 years.  Like, what young person transitions fully?  You know, there may be a few but not everyone and putting that expectation on everyone, regardless of whether you've got a disability or not, we note in the youth studies there is about 5 pathways into employment these days in the contemporary environment.

MS EASTMAN:  The concern is, isn't it, that trying to fix this, you don't want to see Government just replace one narrow restricted approach with another.

DR STAFFORD:  No.

MS EASTMAN:  And your research has really emphasised the importance of co design.

DR STAFFORD:  Yes.

MS EASTMAN:  And to take inclusive strategies that really try to break down some of the stigmas, the stereotypes, and the misconception about a person with disability's capacity to work.  Is that right?

DR STAFFORD:  Yes, absolutely.  And until we deal with the demand side issues which 30 years of research has shown, that we're not going to change the system.  If we keep saying we have to motivate individuals, that's just ridiculous.  It's not founded at all.  Until we deal with that system, it actually has to be driven by people and young people with disabilities, because they understand the system.  Someone can't --- and the co design has to not be token.  We've seen consultation engagement, how that's gone.  It has to be authentic and genuine, and government has to be not risk averse.  Which is difficult.

MS EASTMAN:  I'm sorry that we've really had to race through it and I feel like I've only just touched the surface of a number of issues.  But I think the words you've just used in closing almost mirror the evidence that the Commissioners heard this morning from Jess Mitchell about the recent Summit involving young people, and what you say is very much an echo of what came from that Summit.

I will just check at this point whether the Commissioners have any questions of you.  I know the Commissioners have also read the articles accompanying the outline of evidence.  Commissioners, if there is anything arising.

 
QUESTIONS BY THE COMMISSION

CHAIR:  I will ask Commissioner Atkinson first.

COMMISSIONER ATKINSON:  No, thank you.

CHAIR:  Commissioner Galbally?

COMMISSIONER GALBALLY:  It's a big question and probably for this time of day but I'm interested in --- and there may be a way of communicating this, that self determination, choice and control, which is the real revolution in Australia, can you see a way that that could be applied to DES which is nowhere near choice and control or self determination?

DR STAFFORD:  No, they are completely contradictory.  You don't have that choice in terms of, you know, how long you take, what you do, choices, your pathways.  Yes, it's almost opposing.

COMMISSIONER GALBALLY:  Could it be reformed to be based on that?

DR STAFFORD:  Yes, I don't --- look, by what we've seen so far and not just our study but other existing studies, I'm not sure on the answer.  I can't say definitively, but based on the fact of what the values and fundamental philosophy and principles of choice and control and self-determination is, yes, unless it's completely reformed and driven and individualised and flexible and fluid and we address transition issues and work issues then I'm not sure.  Is it just another tinkering exercise, I'm not sure.

COMMISSIONER GALBALLY:  Thank you.

CHAIR:  Commissioner Ryan?

COMMISSIONER RYAN:  I have many questions but today is not the time to ask, so I will read more and see if I can work it out.

CHAIR:  I have many questions too, but one really follows on from Commissioner Galbally.  Is the conclusion to be drawn from your analysis that in your view we think the entire structure of current policies is misconceived and somehow it all has to be thrown out and start again.  I mean, that's where it leads to, isn't it?

DR STAFFORD:  I think we have to learn from experience.  Throwing everything out the window doesn't always work either.  We've seen that as well.

CHAIR:  May I ask then by what you mean by saying:

Work capacity assessments underpinned by capitalist, PO liberal and  
nebulised model approach to disability.... harmful to the young people's employment pathways and opportunities due to assumption driven categorisation people who are pigeon holed, allocation of unrealistic benchmarks and placed in unhelpful job streams and support.

Doesn't really sound like a system that is capable of modification or adaptation.

DR STAFFORD:  That's probably because we've seen so many types of reform and we haven't seen much change in outcomes, with the different iterations and stuff that we've already seen.  So based on current experience that we've seen, and over the years, possibly not.  But, yes, because of all the different multiple factors that we see the complexity, the issues, there are not just one or two issues, there's a broad systemic problem.  And, as I've mentioned, this is not just our research, this has been quite a number of years of research both here and internationally that have highlighted when models come from these frameworks, it can only lead to what we have experienced and what we see, and what we continue to see over the Royal Commission evidence so far, unfortunately.

CHAIR:  Yes.  Thank you very much.  Thank you for your evidence and you're very interesting research papers which we have read and we have found your discussion today to be very stimulating and interesting.  Thank you very much.

DR STAFFORD:  Thank you.  Thank you for the opportunity.

MS EASTMAN:  Thank you, Dr Stafford.

THE WITNESS WITHDREW

MS EASTMAN:  Commissioners, that concludes the evidence for today.  Thank you for those following along for the extended hour, but we will resume at 9.30am Brisbane time, 10.30am Sydney tomorrow.

CHAIR:  We will adjourn to that time, just to be clear that is 9.30am Brisbane time, 10.30am Sydney time.  Thank you.

ADJOURNED AT 4.39 PM (ADST) UNTIL THURSDAY, 10 DECEMBER 2020 AT 10.30 AM (ADST)