Public Hearing 9 Sydney - Day 5
CHAIR: Good morning, everybody. We commence this final day of the hearing this week with the Acknowledgement of Country. I wish to acknowledge the Gadigal People of the Eora Nation, the traditional custodians of this land upon which Commissioner Ryan and I are located. I also acknowledge the Turrbal and Jagera Nations upon whose lands our hearing room in Brisbane is located and of course Commissioner Atkinson is there. And the Wurundjeri people of the Kulin Nation upon whose lands Commissioner Galbally is presently located.
I pay my respects to their Elders past, present and emerging, as well as to all First Nations people who are viewing this hearing on the live stream.
Yes, Ms Eastman.
MS EASTMAN: Good morning, Commissioners, and good morning to everybody following the webcast for the final day of Public Hearing 9. Our first witness this morning is the Disability Discrimination Commissioner, Dr Ben Gauntlett.
CHAIR: Good morning, Dr Gauntlett. Thank you very much for coming to give your evidence today. I'm sure you are aware, but just in case you are not, on the screen you have Commissioner Atkinson who is in our Brisbane hearing room, Commissioner Galbally is in Melbourne and of course Commissioner Ryan is in the Sydney hearing room with me as indeed you are. I will ask my associate to administer the oath to you if you would be good enough to follow her instructions. Thank you.
COMMISSIONER BEN GAUNTLETT, SWORN
EXAMINATION IN CHIEF BY MS EASTMAN
CHAIR: Thank you, Dr Gauntlett.
MS EASTMAN: Thank you. Just before I start, just for the people participating in the Sydney hearing room, our Auslan interpreters are based in the Brisbane hearing room and sometimes there is an occasion where gentlemen you are all very softly spoken. I may need you to keep your voices up so the Auslan interpreters are able to do their job.
With that, Dr Gauntlett, can I confirm you are Dr Ben Gauntlett?
MS EASTMAN: And you are the Disability Discrimination Commissioner?
COMMISSIONER GAUNTLETT: I am.
MS EASTMAN: And you prepared a statement for the Royal Commission dated 3
September. Are the contents of that statement true?
COMMISSIONER GAUNTLETT: Yes, they are.
MS EASTMAN: Commissioners, you have a copy of the statement which is in Tender Bundle A at Tab 40. If you could receive that into evidence and mark it Exhibit 9.24.
CHAIR: Yes, that can be done.
EXHIBIT #9.24 STATEMENT OF COMMISSIONER BEN GAUNTLETT
There are a number of annexures and documents accompanying the statement. If they could be marked 9.24.1 through to 9.24.5.
CHAIR: Yes, that also can be done.
EXHIBITS #9.24.1 TO #9.24.5 ANNEXURES TO STATEMENT OF COMMISSIONER BEN GAUNTLETT
MS EASTMAN: Dr Gauntlett, before coming to your work as the Disability Discrimination Commissioner, you've spoken about your lived experience as a person with disability in your statement, and you've said that as the Commissioner, it is important to be open about your lived experience of disability so other people with disability also feel comfortable sharing their experiences and can consider and reflect on your own experiences. So normally people ask you about your job and what you are doing and what the policies might be, but I would like to start, if you are agreeable, with telling the Commissioners about your lived experience with disability, starting from when you were a teenager.
COMMISSIONER GAUNTLETT: Certainly. I accept that for some people with disability the disclosure of their disability is a challenging issue. But I feel as the Disability Discrimination Commissioner it is important to be open and transparent so people can learn from my individual circumstances. I had a spinal cord injury when I was playing rugby aged 16. It was a Monday night. I had the choice whether to go to athletics training or to replay a rugby match that we had won 3 weeks beforehand against one of our rival schools. I decided to go to the rugby match. The umpire didn't turn up, but a coach decided to referee the game. Towards the end of the first half, when I was --- I ran after someone to tackle them. I tackled them. I then tackled another person and as I was getting off the ground my teammate fell on my head. And I heard a large cracking sound and then I remained on the ground unable to get up or take my mouth guard out.
What that led to was a circumstance where I became what is called a complete cervical legion 6 tetraplegic as a result of a biophysical dislocation of my neck. That means that I have an inability or compromised use of my hands, my arms, my legs, my ability to regulate temperature, sensation and bodily functions. It has been a significant life change for myself but also for my family and loved ones. And it means that I am a participant on the National Disability Insurance Scheme and before that was a participant on State based insurance schemes because my accident was non compensable in nature. But I was lucky at the time that my school did raise some money for my parents to modify their house to enable me to return home to complete my schooling.
I accept that for some people, when viewing this, they may regard the circumstances of my accident as irrelevant or not needed to be discussed, but I think it is important for young people in particular with disability, or people who have recently acquired a disability, to understand that disability is diverse and different and it affects every single person differently. And so, whilst it is diverse and different, we can learn a lot from considering how others have approached issues. And this is why we look at issues such as employment, and we need to undertake policies where we work with people with disability, not for people with disability.
MS EASTMAN: I want to ask you about some of those policies later on, but can I bring you back.
COMMISSIONER GAUNTLETT: Sure.
MS EASTMAN: So after the accident, you were 16. You still had a few years of school to go. What changed in terms of school and your expectation of what life might be after school?
COMMISSIONER GAUNTLETT: I think you probably just go into an instinct where I just wanted to finish school. And I just hoped for the best in finishing school. And I wanted to finish school with my friends. And you literally just take it day by day and go to class and hope that you will do the best that you can. I was particularly fortunate to have a very good support structure around me to enable me to finish school. I used to play an incredible amount of sport. Not playing sport meant I had a lot more free time on my hands to study and to pass exams, et cetera. But what I felt, or what I tried to do, was to try and just achieve that simple goal of finishing school.
MS EASTMAN: You did very well at school, didn't you?
COMMISSIONER GAUNTLETT: I did do reasonably well at school. And I accept that I have always come from a reasonably scholastic background.
MS EASTMAN: Why after school did you think, "Well, my next step is to start to study medicine in Perth"?
COMMISSIONER GAUNTLETT: I always wanted to be a doctor, and I thought to myself, why not become a doctor? It's all I wanted to be. I was always told, "Just do what you want to do". My parents have been very supportive of me, and in particular my mother. And she would always say to you, "Do not let your disability define you. You can live your own life. It is your path. You can try to live the path that is good for you". And I thought to myself, "Well, I've always wanted to be a doctor, why not try and be a doctor?"
MS EASTMAN: So you started medicine.
COMMISSIONER GAUNTLETT: So I started medicine.
MS EASTMAN: We now know, the story down the track, that you are a lawyer. So what happened with medicine and how did you come to the journey of the law?
COMMISSIONER GAUNTLETT: Well, I guess I did first year medicine along with everyone else, but it gradually became apparent to me that during anatomy class I couldn't see the bodies and also I couldn't --- I was struggling to get to class on time to get personal assistance to enable me to attend the classes I wanted to. And so when I was in second year I thought I needed to change to a career that I knew I could do. And the course and career which had the lowest number of contact hours, which I still thought was quite a useful career, was law.
MS EASTMAN: So you didn't really come with this burning passion to be a lawyer, are you telling us that?
COMMISSIONER GAUNTLETT: I think it would be fair to say I didn't have a burning passion to be a lawyer. I wanted to be a doctor. But sometimes it's a little bit about the journey, and so I just decided that I would change courses and see how that eventuated, and I'm still a lawyer today.
MS EASTMAN: So you finished --- I apologise to the interpreters, after having told all my colleagues off here.
But you finished a law degree but you decided that you didn't want to go immediately into practice being a lawyer, and you continued your studies. So you became a Rhodes Scholar representing WA. That would have been a fairly significant step in the sense that you were leaving home, leaving Perth and heading off to Oxford. What was the experience of studying overseas?
COMMISSIONER GAUNTLETT: I think for me in Oxford in a city in a town which was built perhaps before a time when the wheelchair was invented, it is fair to say that a lot of Oxford is not that easy to get around in a wheelchair. Cobbled streets, older buildings, did make life challenging. Living on my own made life enormously challenging. But for me living in Oxford, it was about the life experience. I did get an appreciation of how people with a spinal cord injury may live without support networks around them and the challenges that they faced and it
made me understand and appreciate the importance of being a member of a community to support you.
I got through my studies in Oxford, but when I compare my circumstances to some of my friends who were there, I would say that my focus was more on surviving and getting through each day where they thrived by being able to participate in far more extracurricular activities than what I did.
CHAIR: Were you in a college?
COMMISSIONER GAUNTLETT: Yes, I was in a college. And the college were very supportive, but there is only so much you can do with spiral staircases and older buildings of that nature. So the best --- in the circumstances, I just tried to take it one day at a time and get through the studies that were in front of me.
MS EASTMAN: So, having had the experience in Oxford, you thought, "Right, now I will go to New York". And you studied in New York as well. What was the experience like studying in New York?
COMMISSIONER GAUNTLETT: New York was slightly different to the United Kingdom in that the Americans With Disabilities Act has meant the built environment is far more suitable for someone with disability, particularly in more modern cities. The United States healthcare system does take some getting used to, and so there was balance between getting appropriate assistance at home with being able to complete my studies again. And I guess when I finished in the United Kingdom and New York it did make me appreciate the enormous potential of the Australian healthcare system and disability support system going forward.
MS EASTMAN: Now, this hearing is about employment, so can I ask you some questions about your own experiences in employment
COMMISSIONER GAUNTLETT: Sure.
MS EASTMAN: --- and some of the jobs that you've done over the course of your career but also, as you point out towards the end of your statement, some of the barriers that you've experienced. So your work experience has essentially been in the law, other than your most recent position as the Commissioner. So you've worked in a large commercial law firm in Perth. Did you choose that law firm or did they choose you?
COMMISSIONER GAUNTLETT: They --- well, I think it is a mutual decision. They chose me and I chose them. But I was particularly fortunate that I was looking at getting recruited into a law job and I became reasonably friendly with one of the human resources managers who worked for that law firm. And they asked me, "Well, what are the reasons why you may or may not take a job?" And I said, "What people fail to understand is the importance for me of accessing a bathroom and accessing a car park. And when I had been doing my clerkships as a law student, I
would have to go to the bathroom in a public car park some distance from the building. Now this is 20 --- not quite 20 years ago, but nearly 20 years ago. And they said, "Well, we're renovating our premises. There will be appropriate facilities on every floor and we're willing to make available a car park for you. And I had some job offers to move to Sydney in different type roles, but for me it was that ability and recognition of my particular needs in a situation which attracted me to work for them.
MS EASTMAN: And then you've held two roles that lawyers would see as very coveted roles: one is you worked as an associate for a High Court judge, and you've also worked assisting the Solicitor General for the Commonwealth. What attracted you to take on these very high profile roles in the law?
COMMISSIONER GAUNTLETT: I think when I got back from Oxford, I was working in a commercial law firm but I wanted to have a job where I felt I was making a difference. And I appreciate many law firms have pro bono opportunities, it worried me that my career was not going in the direction that I wanted to, so I applied to work at the High Court and when I was at the High Court a job that became available while I was there was Counsel Assisting the Solicitor General.
In all these particular roles, I was particularly lucky that some individuals took a great interest in me. They reformed how they practised to enable me to have the role. In particular at the High Court, some of the adjustments and accommodations they made were absolutely fantastic and something which I very much value. But at the same time, I had to move to Canberra and try and live again on my own in Canberra, and one of the very real struggles that existed at that time was there was an absolute inability to find accessible housing. And so what I would actually do is live in university student housing to ensure that I could take the job because there was no available accessible housing for me at that time.
MS EASTMAN: Reading your statement, and when you speak at the final part of your statement about your personal barriers to employment, housing is this recurrent theme for you. If we look at your career where you have moved around to different countries and you've covered many places in Australia, has there ever been a place where the housing has been just spot on for what you needed, or is the housing issue just this ongoing recurrent issue that you have to turn your mind to every time you think about a job that you might be interested in taking on?
COMMISSIONER GAUNTLETT: Housing has been an incredibly challenging aspect of my life. It's been estimated that only 5 per cent of houses in Australia are accessible. And last year in June, the Concluding Observations from the Committee on the Rights of Persons with Disability, one of the clear recommendations is that Australia needs some mandatory access principles in its National Construction Code, and I would support that, and so would research support, that because in my witness statement, I think it is paragraph 102 or 108, there is an article by Provan, an academic by the name of Provan who works at the London School of Economics, and they've said is that the inability to find affordable housing makes a person 4
times less likely to be employed. So a lack of accessible housing can unfortunately greatly impact your ability to not just find a job, but build a career, because what is so important for a person with disability to live independently is that if you have a house, you can start to set up the services to live your life.
So, for example, in my case, once I know where I'm living, I can obtain the necessary support services to come to where I live, and there can be a continuity of service to enable me to then seek employment. And not just seek a job, but a good job. That requires time to set up, but the most primarily important thing for someone in my circumstances with a significant mobility disability, is to have that built environment that is fit for purpose.
MS EASTMAN: Commissioners, you have a copy of the article, it is called "No place like an accessible home: Quality of life and opportunity for disabled people with accessible housing needs". That is part of the documents that Dr Gauntlett has provided to the Royal Commission and part of the material that has been tendered.
CHAIR: In your present location, you've been able to find accommodation of the kind you need?
COMMISSIONER GAUNTLETT: Yes, I have, Chair. What I have become astute at is perhaps being able to negotiate with landlords as to what is required, but it is in a situation where I'm far older, far more advanced in my career, and far more understanding as to how to, for example, negotiate an agreement whereby you might fix the house after you leave. To expect that of someone who is 25 or 30, who has never rented before or never lived out of home before is, I think, quite a significant difference, and so I think we have to understand it, for housing people particularly, people with disabilities, they may come from all backgrounds. For example, English may not be a first language, but they still have specific needs, and so within that needs that they have for housing, there shouldn't be a need to have to be able to negotiate a legal agreement to fix a house after you've left the house. So there is a difference between having housing policy which is just available. Now, one thing I would say even coming into this role the options for housing were incredibly limited. A person with disability may want to live in a particular location because their work is nearby, or a community group they want to live nearby. At present in Australia, those options do not exist.
MS EASTMAN: Can we turn now to your role as the Disability Discrimination Commissioner. You were appointed to this role and commenced on 7 May last year, 2019.
COMMISSIONER GAUNTLETT: Yes.
MS EASTMAN: And your role as the Commissioner is essentially guided by the Disability Discrimination Act and the functions set out for the Human Rights Commission in the Australian Human Rights Commission Act?
COMMISSIONER GAUNTLETT: Yes, that's correct.
MS EASTMAN: So, as the Disability Discrimination Commissioner, you are participant of the Australian Human Rights Commission, sometimes called the AHRC, and you are one of 7 Commissioners.
COMMISSIONER GAUNTLETT: Yes, that's correct.
MS EASTMAN: So the other Commissioners, as many people will be aware, cover other subject matters also reflective of legislation, Sex Discrimination Act, Age Discrimination Act, Race Discrimination Act, but there is also some other Commissioners: a Human Rights Commissioner?
COMMISSIONER GAUNTLETT: Yes.
MS EASTMAN: An Aboriginal and Torres Strait Islander Social Justice Commissioner?
COMMISSIONER GAUNTLETT: Yes.
MS EASTMAN: And a President?
COMMISSIONER GAUNTLETT: Yes.
MS EASTMAN: So the Commissioners work together on a holistic approach to human rights and the function of the --- sorry, I take that back. They work together to deliver a human rights framework that meets the objectives of the AHRC Act, and this could be through conducting inquiries, undertaking research, doing policy. I think all of the Commissioners give lots of speeches. How many have you done in your time?
COMMISSIONER GAUNTLETT: I think since 1 July last year, up until the time of writing my statement, I think I've given 72 speeches and external presentations.
MS EASTMAN: So there is often high demand for the Commissioners to come and speak at different forums about different issues; is that right?
COMMISSIONER GAUNTLETT: There is high demand and I think it is incredibly important that the Disability Discrimination Commissioner makes themselves available to particularly people with disability in different locations in Australia. So I've tried to the fullest extent possible make myself available and give speeches on issues as required.
MS EASTMAN: And you also are involved in a number of outreach and consultation activities. So that means that you often are asked to become a member of government and non government committees. Can you tell us about some of the committees that you serve on?
COMMISSIONER GAUNTLETT: I think I sit on approximately 16 different committees. I sit on the National Accessible Transport Taskforce, I sit on the National Disability Insurance Scheme Independent Advisory Council, I also sit on the newly formed National Employment or Disability Employment Committee. There is also committees that relate to things such as electoral rules, premises standards, et cetera, and education. So there is a lot of different committees and one of the most important aspects of the Disability Discrimination Commissioner role is that by sitting on those committees you can hopefully, quietly and persuasively influence policy so that human rights for all Australians are respected.
MS EASTMAN: And no doubt you have a vast staff to help you perform all of these functions; is that right?
COMMISSIONER GAUNTLETT: I don't know if I could say I have a vast staff, Ms Eastman.
MS EASTMAN: Have a small but extremely competent, diligent ---
COMMISSIONER GAUNTLETT: I think I would like to say I have a small but particularly able staff who are incredibly diligent and try to do their best in the circumstances. One thing to be aware of is that when you consider disability policy and the need for the views of people with disability to be eloquently articulated with government, there is no State equivalent of the Disability Discrimination Commissioner role. So there is a Commonwealth Disability Discrimination Commissioner, but there is no State equivalent. That means that in disability, it is necessary for the Disability Discrimination Commissioner to both work on a Commonwealth and a State level on particular issues. Each Commissioner has two policy staff and one EA, and then can access a number of cross cutting functions across the Commission relating to communications, legal, strategic direction. But there is a significant amount of work when you consider the status of the NDIS, the National Disability Strategy and also the Disability Royal Commission and the need for the Australian Human Rights Commission to provide technical and appropriate assistance to ensure that we have good laws for all Australians, and especially in the field of disability it is important to always be mindful that there are certain people with a disability who very much struggle to advocate for themselves. So the role of the Disability Discrimination Commissioner is always to speak on behalf of those people, to make sure that they are remembered in policy discussions.
MS EASTMAN: One feature of the work of the Australian Human Rights Commission has always been to be guided by international human rights law, and particularly Conventions or Declarations that are annexed to the Australian Human Rights Commission Act. In the early days in disability there were two declarations that we find in the back of the AHRC Act. And these well pre date the Convention on the Rights of People with Disability. In terms of your work, how important is the Convention on the Rights of People with Disability to how you do your work and the approach that you take to policy?
COMMISSIONER GAUNTLETT: The Convention on the Rights of Persons With Disability is, in a sense, the primary document from which I need to refer to to discharge my function. It is important to acknowledge that the Convention on the Rights of Persons With Disability, or CRPD as it is often called, is the latest human rights treaty that has been created internationally, and so it reflects world's best practice in a number of areas. It has sophisticated feedback relating to issues such as data collection, the role of monitoring, it understands importantly the issues of intersectionality, and considering issues such as gender as a cross cutting theme. And in areas such as employment and housing, it is both progressive and understanding to the need to both develop good policy but also to end issues such as segregation, which can create enormous problems for society now and in the future.
MS EASTMAN: Commissioners, the Human Rights Commission has provided a very detailed submission in response to this Royal Commission's Issues Paper on employment, and we've included a copy of that submission in the evidence.
Dr Gauntlett, you are familiar with that submission
COMMISSIONER GAUNTLETT: Yes.
MS EASTMAN: --- and it speaks to the operation of Article 27 of the Convention. Is there anything you want to say about the importance of Article 27 in the work that you've done on employment, and then we'll come back and look at some of the specific areas where you've worked on.
COMMISSIONER GAUNTLETT: I think the best way to frame the importance of Article 27 in the work I've done in employment is to relate that back to the findings of the Committee on the Rights of Persons With Disabilities in their Concluding Observations issued in October last year. And what the Committee on the Rights of Persons With Disabilities found was that in Australia it was important to acknowledge that there were some good instances of good practice, such as the Australian Public Service's aim to have 7 per cent people with disability in employment was regarded as good practice, but there were significant concerns with the operation of Australian Disability Enterprises and paying people above award wages in open employment, or where they would be paid in open employment, and the operation of supported wage assessment mechanisms to ensure that people were not able to access employment because in part this could be discriminatory in nature. What has been found is I think that approximately only 0.8 per cent of people --- and this is quoted in our submissions --- move from Australian Disability Enterprises into open employment. But one of the justifications for this type of employment is to enable people to, in a sense, improve how they would be employed. That is, in a sense, train them to be better at their jobs. So there is a very real and important issue for the issue of how people are viewed in employment to be considered. Another important recommendation that was made by the committee on the rights of persons with disability was to follow the Willing to Work Report. The Willing to Work Report was compiled by my predecessor, the late Suzanne Ryan, who is
a particularly respected Age and Disability Discrimination Commissioner following extensive consultation throughout the community where she considered age and disability discrimination in the workforce. And Commissioner Ryan came up with a number of very important recommendations relating to such things as potentially having the Workplace Gender Equality Agency report on issues such as disability and age, education campaigns and also the role of the Australian Human Rights Commission as providing an educative function in employment.
So that particular report is incredibly, as I see it, is incredibly important for both discharging our human rights obligations but also as a touch stone as to what is a good and effective practice in employment going forward.
MS EASTMAN: I might come in a moment to ask you about some of the specific recommendations as they touch on people with disability, but can I come back to the Convention. So the Convention itself, while Australia is a party to the Convention, the rights in the Convention are not automatically part of Australian law and they can't be enforced automatically by Australian courts. And the Royal Commission Commissioners heard evidence from Rosemary Kayes in a number of hearings talking about the gap between the rights as they exist in international law, and how they translate into Australian law. But one way the Convention rights translate into Australian law in the area of employment is through the Disability Discrimination Act, and that's your --- you are the custodian of that legislation, so can I ask you a few questions now about how the DDA, if I can use the shorthand, actually works in the area of employment.
COMMISSIONER GAUNTLETT: Sure.
MS EASTMAN: So you've dealt with this again in your statement, but the way the DDA works, and tell me if I'm right on this, is that there is a part of the DDA that says there is going to will areas of public life where doing certain things will be unlawful. And one part of the DDA deals with work, and that covers employment, people working as commission agents or contractors, partners in partnerships of more than 6, qualifying bodies and employment agencies. So it covers a wide area of work, not just the traditional employer/employee relationship. Is that right?
COMMISSIONER GAUNTLETT: That's right.
MS EASTMAN: If we take just the employer/employee, there is that provision in the Act, section 15, and that addresses a number of aspects of employment. The first bit is in preemployment. So there are certain things that employers can't do in the processes of recruiting somebody for a job; is that right?
COMMISSIONER GAUNTLETT: Yes.
MS EASTMAN: And then once a person does get a job, there will be certain things that employers can't do to employees in their employment; is that right?
COMMISSIONER GAUNTLETT: Yes.
MS EASTMAN: And that includes such things as particular terms and conditions that might apply only to a person with disability, denying access to benefits, denying opportunities for promotion associated with employment, dismissing, terminating somebody's employment, and then there is this catch all called "any other detriment".
COMMISSIONER GAUNTLETT: Yes.
MS EASTMAN: What does the "any other detriment" cover? Can it be anything? That I don't like something happening, is that a detriment in employment?
COMMISSIONER GAUNTLETT: It relates to --- first of all what you do, in a sense, there is the employment relationship that is required. Then the “any other detriment” aspect of that is, in a sense, a bit of a catch all, but what you have to be aware of is there is also the Fair Work Act which does regulate employment.
MS EASTMAN: I will get to the Fair Work Act. I will keep you in the DDA for the moment.
COMMISSIONER GAUNTLETT: Okay. In the DDA, how you assess whether discrimination occurs, there are two limbs, there's ---
MS EASTMAN: That is the next step.
COMMISSIONER GAUNTLETT: Okay.
MS EASTMAN: First step, we have to get in the recruitment phase or the relationship phase. If we've ticked that box, it will be unlawful if the definitions of discrimination are satisfied. So there are two primary definitions that we look at. And the Chair referred to this earlier in the week: one is called, in shorthand, "direct discrimination", and the other is called "indirect discrimination". This is a very complex area in terms of the legal things, so give us the layperson's understanding of direct and then indirect discrimination.
COMMISSIONER GAUNTLETT: I think the best way to describe direct discrimination is an inequality of treatment on the basis of a person's disability where indirect discrimination is an inequality of impact on the basis of a person's disability.
MS EASTMAN: What would be an example of direct discrimination? How might that occur in an employment setting?
COMMISSIONER GAUNTLETT: An example of direct discrimination would be where you specifically exclude a person from working solely on the basis of their disability. Maybe the person has a hearing issue and you say, "We're not going to allow people with that disability to work for us".
MS EASTMAN: Now, the indirect discrimination is a trickier area, and that requires somebody to have to comply with a condition, a requirement, a policy or practice in the workplace, and because of the disability they can't comply, how does indirect discrimination work from there. Is there anything more to consider before you make a finding of indirect discrimination?
COMMISSIONER GAUNTLETT: I think when you consider indirect discrimination what we are looking at is an inequality: is that by treating people the same way you may have an inequality of impact, but there is also a necessary issue is to consider whether reasonable adjustment could take place in the circumstances.
MS EASTMAN: Okay.
COMMISSIONER GAUNTLETT: It is unfortunately a very fact based inquiry, so a person with a disability upfront, deciding whether they have been discriminated against, can find it particularly challenging to decide upon. And so with an inequality of treatment that occurs to have indirect discrimination, it may be that you treat two employees in the same way, but because of an individual's disability the effect of that is different.
MS EASTMAN: So can I use an example perhaps for you. If you were looking for a job at a law firm and you were asked to come for an interview and you arrived at the law firm but you had to get to the first floor to be able to get to an interview. Yet another candidate is competing for that job also has to get to the first floor for that interview. So you are both treated the same in terms of where you have to go.
COMMISSIONER GAUNTLETT: But different.
MS EASTMAN: There is no lift, there is no ramp, nothing. So you are treated exactly the same way, but the outcome for you is different, you don't even get into the door of the interview; is that indirect discrimination?
COMMISSIONER GAUNTLETT: Yes.
MS EASTMAN: So the example of indirect discrimination is really looking at when people for the most part are treated in exactly the same way, but that treatment that is the same has a disproportionate adverse outcome for, in this case, a person with disability; is that how I would look at it?
COMMISSIONER GAUNTLETT: Yes.
MS EASTMAN: But there is a kicker in this, isn't it, and that is the question of whether or not the imposition of that particular requirement or condition or policy is “reasonable” in all of the circumstances.
COMMISSIONER GAUNTLETT: Yes.
MS EASTMAN: Looking at “reasonable”, what is involved in looking at reasonable and who bears the onus of proving that a requirement or condition is reasonable?
COMMISSIONER GAUNTLETT: The issue of reasonable --- so when a complainant brings a claim, they bear the onus of proving that something is discriminatory in nature. And that would include that they've been treated unreasonably. The definition of "reasonable adjustment" within the Act is a definition which refers back to the notion or the concept of unjustifiable hardships, and so what is reasonable adjustment is, in a sense, directly related to what is not unjustifiable hardship.
MS EASTMAN: I am going to come to reasonable adjustment, but I am going to give you an example, and perhaps one of the Commissioners who is sitting on this inquiry may know about it. This is before reasonable adjustments.
If, for example, there is a large convention centre in a capital city of a State, and the convention centre is built but there also has to be stairs and it is not particularly accessible, then would that give rise to a claim of indirect discrimination? I'm testing you against one of the Commissioners who might have determined a case like this in a former life.
COMMISSIONER GAUNTLETT: Yes, I'm aware that Justice Atkinson may have determined this case, I think it relates to an individual by the name of Kevin Cox in Queensland. Yes, there is an issue of discrimination in that setting.
MS EASTMAN: Well, the argument was you don't have to go up the front stairs, you can drive in the back door and that will get you there. I know this is not an employment case, but if, for example, in the example I gave you, and somebody said, "Oh, look, you can't get up the stairs to the first floor but we'll come and do the interview in the coffee shop down the road, we'll do it in the back of the local fast food shop", is that discrimination?
COMMISSIONER GAUNTLETT: It's obviously a very factually dependent inquiry, but I would argue that in that circumstances it is discrimination. Because the adjustment is not reasonable.
MS EASTMAN: Okay. But it is an area which is tricky from time to time, as you say. It is very fact based. Is that right?
COMMISSIONER GAUNTLETT: Absolutely. And I think one of the things that we all have to be aware of is that not every person with disability has a legal background. Not every person with disability's first language is English, and not everybody with a disability has access to legal representation or wants to avail themselves of those rights, so we need to have a multitude of policy frameworks to ensure that people with disabilities can get not just a job, but a good job. But at all times we also need to have that very clear foundation of a legal system that does protect fundamental rights for people as well.
MS EASTMAN: Well, you've mentioned reasonable adjustments. And when I was taking you through what is the outline of where it will be unlawful to discriminate in employment in the recruitment phase, and while somebody is working, I mentioned their terms and conditions, access to benefits or promotions associated with employment, dismissing or any other detriment. But there is no positive obligation, is there, in the employment provisions that an employer has to provide a reasonable adjustment? And that ---
COMMISSIONER GAUNTLETT: No.
MS EASTMAN: --- concept of reasonable adjustment is not a standalone concept. There is no right to reasonable adjustment. We only get to the question of reasonable adjustments when we look at the definitions of direct and indirect discrimination; is that right?
COMMISSIONER GAUNTLETT: That's correct.
MS EASTMAN: And that word, or that phrase "reasonable adjustment", that word "reasonable" is actually superfluous. It has nothing to do with the adjustment?
COMMISSIONER GAUNTLETT: Well, I wouldn't want to cast too many dispersions on the drafters, Ms Eastman, but what I would say is the Disability Discrimination Act is extraordinarily difficult for a person without legal training to understand, and that we need to have a statute that is fit for purpose for all people with disability to enable them to avail themselves of their rights if needed but also to guide employers as to what is good conduct at the same time. And when you've talked about reasonable adjustment then in the context of direct and indirect discrimination, one of the policy changes that we submit is that there should potentially be a positive duty inserted into the Disability Discrimination Act to ensure that substantial equality takes place. And in the UK this occurs, and in Victoria to a lesser extent this occurs, although not as successfully as we would have hoped.
But what we do need to balance is a balance between having a legal system that protects fundamental rights, that is strong and enforceable and easily enforceable to protect people with disabilities, but also that guides employers so that they are comfortable employing people with disability and having discussions about disability in a way that is constructive.
MS EASTMAN: But the DDA doesn't have that model at all, and the concept of reasonable adjustments is really around what adjustment is something to be done up to the point that it imposes an unjustifiable hardship on an employer; that's the model, isn't it?
COMMISSIONER GAUNTLETT: That's correct.
MS EASTMAN: That's not really a model encouraged adjustments to be made in a positive way, it is a model that is very much focused on at what point does the obligation to make the adjustment end, because it will impose an unjustifiable hardship.
COMMISSIONER GAUNTLETT: I think the complaints based model, and the model of setting or limiting principles and then having reasonable adjustment interpreted or the inherent requirements for job interpreted as well, which is another exception under the Disability Discrimination Act, can be and are problematic in nature for people with disability and need to be reviewed. But that review cannot happen in isolation from other laws and also other policy frameworks to ensure that employers feel comfortable employing people with disability, and that there is sufficient information that people with disability will apply for jobs and get not just a job, but a good job. And one of the concerns that exists for me is that what we want is a practical system so that people with disability are obtaining jobs but not seeking or being put in a situation, rather, where they may have to go to court readily to enforce their rights. We need a better system than that whereby what actually happens is that there is trust and confidence between both parties to have good and meaningful employment relationships where when concerns are raised, those concerns can be dealt with amicably and understandably, and so that we can then have good outcomes.
The Australian Institute of Health and Welfare has recently reviewed what is the average cost accommodation for a person with disability, and it is $650. And I think they reviewed or found that 88 per cent of people with disability don't need any type of reasonable accommodation whatsoever. So we do need to try and get the balance right between having an incredibly rigorous Disability Discrimination Act which protects rights, but also trying to get workable, long term relationships for people with disability with their employers so they can build careers.
MS EASTMAN: You've mentioned inherent requirements, and that is another exception to what might be unlawful discrimination, and inherent requirements is looking at a particular job and asking what is absolutely essential to the performance of that job, not just the tasks to be done but the circumstances in which the job is performed. And if someone can't do the inherent requirements of the job even with some adjustments, then if an employer refuses to employ a person with disability or does something in the employment relationship, including termination, that won't be unlawful. Do you have a view on how Australia's travelled with dealing with inherent requirements in the job?
COMMISSIONER GAUNTLETT: I think the best way of putting it for inherent requirements, reasonable adjustments, the Disability Discrimination Act more generally, is that I have a concern that the Act as it operates at a practical level is not as effective as we would have hoped, and that people with disability do not know what their rights are in certain situations, and that they are required to bear the burden of enforcing those rights. There is a place for either someone acting on behalf of the person with a disability or the Australian Human Rights Commission
potentially bringing actions on behalf of certain individuals with disability who may be especially marginalised. But with that need to reform laws, to constantly make them fit for purpose, there is also an aspect of making sure that the employers understand those laws so that they feel comfortable employing people with disability, and so that when there are disputes, that they can resolved amicably and quickly.
MS EASTMAN: I want to ask you about the work of the Human Rights Commission in receiving complaints. And that is not a specific function you have. The President of the Human Rights Commission has the function of receiving complaints, and then the oversight of the investigation and conciliation of complaints to the Human Rights Commission. So you are not actively involved in sorting out those complaints.
COMMISSIONER GAUNTLETT: That's correct.
MS EASTMAN: All right. So if someone was to make a complaint about the way in which they were treated in employment, and can I add also we hadn't touched on section 35 of the Act which makes it unlawful for a person to be harassed in their employment. So that concept of harassment is also in the Act. But ---
COMMISSIONER GAUNTLETT: And that is undeniably incredibly important. It is also important to realise that the Act doesn't have an intersectional operation. People with disabilities have genders, they have racial backgrounds, they have culturally and linguistically diverse backgrounds and we need to recognise that intersectional basis upon which they live in terms of protecting their rights.
MS EASTMAN: So the model at the moment, as you said, is really about setting out the areas where it is unlawful, and if unlawfulness occurs, the onus is on the person who has experienced the discrimination, or believes that they've experienced discrimination, to have to then go to the Human Rights Commission by making a complaint. So they don't physically have to go, but they can do something online or write a letter.
So a complaint goes in to the Human Rights Commission, somebody says, "I've been sacked from my job because of disability". What happens after a complaint goes in?
COMMISSIONER GAUNTLETT: Well, they come --- it goes into a different stream or section of the Australian Human Rights Commission, and the matter is dealt with by conciliation between the parties, and if the conciliation doesn't resolve the matter, then the matter can proceed to the Federal Court or the Federal Circuit Court for resolution.
MS EASTMAN: Conciliation, is that public? Can members of the public come and watch a conciliation in action?
COMMISSIONER GAUNTLETT: No, the conciliation is private in nature.
MS EASTMAN: And most complaints are resolved by conciliation, aren't they?
COMMISSIONER GAUNTLETT: I think that is the case, although I would have to check on the exact statistics, but I'm under the impression that most complaints are resolved by conciliation, but the exact points I don't have to hand.
MS EASTMAN: That's fine. You have included in the submission to this Royal Commission on the employment issues some of the statistics about the proportion of complaints that come to the Human Rights Commission across all the different areas, race, age, sex, sexual harassment, that disability is a very high level of complaints, particularly in employment, so I am going to put up on the screen just the table that you provided so we've got a sense of it.
COMMISSIONER GAUNTLETT: Yes, this is from Appendix A of our written submissions. To give you some background, the highest level of complaints to the Australian Human Rights Commission is in disability. It averages a little bit over 40 per cent per year, and amongst those complaints a significant proportion of those relate to employment. And these figures relate to the employment, the percentage of employment complaints out of the disability complaints that are filed.
MS EASTMAN: Now, you may not have an answer to this, but you may have a comment on it. The Royal Commission's heard over the course of this week that there are 4.4 million people in Australia with disability. And in terms of the proportion of people with disability who are working, it is about 53, 54 per cent. We have heard over the course of this week from the research done that one of the number one issues that people with disability feel in their employment is that feeling of being discriminated against or stigmatised. If you are looking at a cohort of something around 2 million people, and that is an experience that people experience in the workplace, that's a very small number of complaints as the proportion of the number of people with disability who may be working and having that experience; would you agree with that?
COMMISSIONER GAUNTLETT: It is a small number of complaints, but I think we also have to perhaps realise that you can judge the efficacy of a policy system by outcomes. And when you have a participation rate of 53 per cent in the community for people with disability, which is 30 per cent lower than people who do not have a disability, that is a significant problem. When you have median income in terms of earnings which is half for people with disability than those without disability, again that is a significant problem. One way to look at those figures is to also say that people worry that in going to the Australian Human Rights Commission whether the outcome they will get justifies the effort to make that complaint.
If a person makes a complaint it invariably has the practical effect of causing enormous angst with their employer going forward, so they will invariably have to change jobs. If a person is worried about their ability to obtain another job because they have some concerns that it was so difficult to get the first job, they are less likely to complain because they may just take upon their conduct and see it as
suitable or they might just quit their job because they are worried that they won't get that next job. So I think those figures need to be seen in the context of an otherwise challenging employment environment for people with disability in the community.
MS EASTMAN: Well, even if you make your way to the Human Rights Commission with a complaint, and assuming the majority of complaints are resolved by a confidential and private conciliation process, if the complaint can't be resolved by conciliation at the Human Rights Commission, the next step is for the person to decide whether they want to bring a court proceeding either in the Federal Court or the Federal Circuit Court; is that right?
COMMISSIONER GAUNTLETT: Yes.
MS EASTMAN: We call those, as lawyers, cost jurisdictions, which means that if you lose the case, you not only have to pay your own lawyer's costs but also the costs of the other lawyers representing the employer, for example.
COMMISSIONER GAUNTLETT: Yes.
MS EASTMAN: And some people say, "We don't see very many cases in the courts about disability, discrimination in employment". Do you have a view as to why that might be?
COMMISSIONER GAUNTLETT: I think it is a fair reflection of the state of Australian case law, that we do not have a significant number of cases in Australian courts relating to disability discrimination in employment. But it also needs to be understood that there is a time component in that process, in that from the point of when discrimination may have taken place, to the resolution of the dispute, may be a matter of years. And that person, in a sense, may be putting their life on hold whilst this dispute is being resolved. So, the expectation that a person with a disability will see from the point of discrimination, or alleged discrimination, all the way to judgment in a Federal Court matter, is one that requires a particular funding for that individual and also time for that individual to bring the case. And in those circumstances, I think it is incredibly important to be realistic about whether a person with a disability would be able to put their life on hold to that extent, and also have the costs and the financial means to do so.
Another aspect of those cases to be aware of is the person with a disability may need to provide expert evidence on a certain issue. They may not have ready access to particular experts where an employer may.
MS EASTMAN: They may even have to prove they have a disability, don't they?
COMMISSIONER GAUNTLETT: That's correct, and so there are issues with forensic aspects of bringing the claim and access to documents, which mean it is unlikely that we will have a significant number of disability discrimination courses for employment in the Federal Court.
CHAIR: We should perhaps identify the constitutional constraints. There was once upon a time the availability to the Human Rights Commission, or under the name it then had, to determine complaints itself and then the High Court said that this was inconsistent with the separation of powers (overspeaking)
COMMISSIONER GAUNTLETT: I think 1984 decision.
CHAIR: That's right. So you are a casualty, in a way, of the purity of judicial power.
COMMISSIONER GAUNTLETT: Obviously ---
COMMISSIONER ATKINSON: And I don't have to remind you, Chair, that the States of course don't have the same problem.
CHAIR: Thank you.
MS EASTMAN: In fact, thank you, Commissioner Atkinson, because that was my next question. In addition to the Commonwealth law, there are other laws that give remedies for discrimination on the grounds of disability in employment. There is the Fair Work Act. So if you are unfairly dismissed because of disability, there is a remedy there. There is the general protections provisions in the Fair Work Act. And that has a provision that specifically identifies physical or mental disability, but not other disabilities. But that provision has a reverse onus. So if somebody says, "Oh, I've experienced adverse action" then there is an onus on the employer to prove that they didn't act, for example, because of somebody's physical or mental disability. So there is that provision. And then there is a whole raft of State and Territory laws that also provide remedies for discrimination. So if I'm an employee with a disability and I'm thinking, "Well, I'm going to take on a complaint", you've given us a very comprehensive overview of the Commonwealth Disability Discrimination Act, but how do I work out whether I go to your Commission or whether I go out to Parramatta here in Sydney to Anti Discrimination NSW, or down the road here to Williams Street to the Fair Work Commission? How do I work all of that out?
COMMISSIONER GAUNTLETT: I think perhaps the pragmatic response to you is that you would have to seek legal advice on what is the best avenue for which you proceed upon. Whilst there are certain benefits in perhaps going through the general protections route, although there are significantly short time frames involved, or potentially going to a State based resolution mechanism, although there are slight differences in procedure and the definition of disability and whether there is a positive duty in Victoria, for example, the crux of the concerning issue remains, which is that an individual bears the onus of that complaint to bring it upon themselves to go to the particular dispute resolution mechanism and that can take an enormously long period of time, it can be incredibly stressful, and that person ultimately may receive resolution which is quite modest in nature. And so it puts on that person with disability a tremendous challenge which, what we want to have is
a system whereby both the employer and the employee understand their obligations in a way that we can have as many people with disability in not just in a job, but a good job.
MS EASTMAN: It is coming back to the fundamentals of an employment relationship, one of mutual trust and confidence, rather than mutual suspicion and distrust. So do we need laws that better build and work on that foundation of mutual trust and confidence?
COMMISSIONER GAUNTLETT: I don't know if the answer is better laws to create mutual trust and confidence, Ms Eastman. I think there is a really important issue here about giving people the appropriate training and awareness of disability so that a person with disability people can in the right circumstances can feel comfortable revealing what they need, and that an employer will be respectful in those situations of what is being requested.
It is, ultimately the --- the employment relationship ultimately is guided by 2 parties getting on well and being able to reveal aspects of themselves to each other to enable that you have good outcomes. The best employment relationships I've been in as a person with disability there was trust and confidence. And that trust and confidence is built over time. But to have trust and confidence, I think people with disability need to be sure that they have fundamental rights which are respected and can be relied upon. But also we need to train and upskill our employers to ensure that when they employ people with disability, they are confident about having difficult discussions to ensure that people with disability are not just in the building, but they are properly included.
MS EASTMAN: And that takes me, I think, neatly to the Willing to Work Report and the recommendations. So you've spoken a little earlier about Susan Ryan's work on the Willing to Work Report, and in paragraph 45 of your statement, Dr Gauntlett set out some of the key recommendations in relation to addressing the issues that you've just touched on.
Do you want to talk about any of the particular recommendations, particularly around national education campaigns, expanding an agency like the Workplace Gender Equality Agency to deal with equality and diversity more generally? Do you want to speak about some of those recommendations? I assume these recommendations have not been implemented?
COMMISSIONER GAUNTLETT: I can say, for instance, that the expansion of the Workplace Gender Equality Agency to cover disability has definitely not occurred. I'm aware there is some work in relation to the education of employers relating to people with disability through government agencies, but what I would say is we need a centralised approach to that that is more comprehensive in nature. And one of the recommendations of the Willing to Work Report --- I think it is Recommendation 29 --- was that the Australian Human Rights Commission create a resource in relation to getting together with a number of large employers, unions and relevant individuals to
create an employment resource for people with disabilities to deal with issues relating to employment. Dealing with the Workplace Gender Equality Agency and why that is important is that we know --- or the reform of that agency, we know from the Convention on the Rights of Persons With Disability, and the data and measuring of outcomes is an incredibly important part of disability policy more generally. The National Disability Strategy, or the previous National Disability Strategy, which was entered into in 2010, unfortunately didn't have a data framework that was implemented. That meant a lot of the aspects of it were unfortunately not followed through as we would have hoped. By measuring disability related employment issues, I think we can get a better understanding in Australia as to where improvements can be made and where good policy can be created.
In terms of the education campaign that we have or should have, the concern that exists is what we need is people with disability are not viewed as objects of charity. But we emphasise the strengths of people with disability and what they can do.
What people sometimes fail to understand or appreciate is a person having a disability throughout their life can mean that individual has a lot of soft skills that are incredibly important to an employer. They can be really good at solving problems. They can be quite logical in nature. They can work particularly well in teams. And they can resolve issues or be able to discuss issues in a way that is respectful and deal with the public in a way that is useful and enables that individual with a disability to be a very good communicator. So when we talk about disability, too often we look at the things that they cannot do rather than the things they can. And particularly in large organisations they can find their place or niche in particular aspects of that organisation which means that person can give --- can be a really valuable team member over time, and as employees, we know people with disabilities are less likely to be sick, they are more likely to stay in their jobs for a long time, and they are often incredibly loyal to the particular organisation that employs them.
The recommendation that the Australian Human Rights Commission should, in a sense, become a thought leader in disability employment is something which I strongly advocate for. One of the challenges for young people in particular with disability is to look at the people that they are dealing with and saying, "Is that me?"
MS EASTMAN: This is something you've been looking at this year
COMMISSIONER GAUNTLETT: It is.
MS EASTMAN: --- and can you tell the Royal Commission a little bit about what you've been working on this year during the COVID 19 pandemic with young people?
COMMISSIONER GAUNTLETT: Sure. So it is traditional, or it is common that a Commissioner at the Australian Human Rights Commission will have a series of priorities during their term. And I was appointed for 5 years. And one of my
priorities is the employment of people with disability. And the reason why I advocate for the employment of people with disability is when people with disability are employed in good jobs in open employment, it is reflective of a disability policy system that is working well. That is, they have appropriate home assistance, there is transport, there is housing, the values of the community are ones which respect people with disability. We've researched what is a way to make a substantive difference to the area of employment and received some philanthropic seed funding to set up a communications resource, which is a website, and to work with 10 to 12 of Australia's largest employers to try and create a system whereby with the buy in from the highest level of the organisations, being the CEO and the board ---
MS EASTMAN: Are these public or private sector organisations?
COMMISSIONER GAUNTLETT: They would be both. And what would happen is it would be based upon analogous principles to Male Champions of Change where we come together to talk about how do we resolve disability employment in an open and transparent manner, but also, along with that, in a sense, champions network, or key employer network, we would have 10 to 12 people with a disability who would function as ambassadors to guide the program going forward. So they could give their input on what is good disability policies within an organisation. We then make that information, once settled, publicly available on a website so that both people with a disability, but employers all over Australia understand how to have innovative disability employment programs going forward. And by committing at the highest levels of these organisations to the importance of disability employment, what we hope to do is to change the nature of the discussion. Instead of having a nature of discussion of "Why employee with disability", we want it to be "Why not?" We want organisations, when they consider issues like diversity, to understand that disability is the equivalent of any other diversity characteristic that exists. And when organisations talk about things like sustainable development goals, and they talk about the importance of human rights, we want the largest organisations in Australia to realise that disability is firmly in those discussions. Sustainable Development Goal 8.5 explicitly refers to disability employment, but if you look at the human rights reports that are written by some of our largest companies, disability is dealt with in a silent manner.
We need the largest organisations in Australia and employers to step forward and show leadership, to say that we can employ people with disability throughout our organisations in a number of key roles and we are going to be open and transparent about telling the story how we do.
The reason why the Australian Human Rights Commission and myself as Disability Discrimination Commissioner are so passionate about this role or this particular project is that by entering into the project and setting it up in a way that we do, we think we can create an example where others will get on board and see that it is possible to not just do it, but do it well, and it can be a differentiator in the private market, that how you employ people with disabilities is something that is valued.
So when we look at the key constituent elements to the program, there is buy in or sign off or commitment from the CEO and/or the board of the organisation, the existence of an ambassador's advisory network of people with disability to guide the program, a communications resource which is open to all people to look at, to learn from, and to encourage people with disability, and regular forums relating to the particular organisation where we try to talk about what is good practice in disability employment, so that it becomes normalised.
MS EASTMAN: Dr Gauntlett, there are lots of other questions that I would like to ask you, and I'm going to ask the Commissioners whether they have any questions. I'm conscious, Commissioners, of the time we have available this morning.
CHAIR: Thank you. I'm sure there are many questions that could take a great deal of time but I shall ask first, Commissioner Atkinson.
COMMISSIONER ATKINSON: Thank you, Dr Gauntlett. I think your ideas that you've just expressed fully are really interesting and will be very useful. Thank you for your evidence today.
CHAIR: Commissioner Galbally?
COMMISSIONER GALBALLY: Thank you, very much for that very fulsome evidence. I have no questions, thank you.
CHAIR: Commissioner Ryan.
COMMISSIONER RYAN: Yes, Mr Chair, I do.
QUESTIONS BY THE COMMISSION
COMMISSIONER RYAN: Mr Gauntlett, you've said to us that you have a concern that the Act as it operates, I'm quoting you, "at a practical level is not as effective as we would hope".
My friend, as having been an employer, I recall being very concerned about unfair dismissal, work health and safety, public liability, even gender discrimination are things that we know employers are incredibly concerned about because they are worried about the legal consequences of failure in that area. Yesterday we had a witness come to us with evidence they were a lollipop person, and their employer was actually considering dismissing them because they were worried about the implications of the Work Health and Safety Act because they had to wear a brace for a medical condition that they had.
Is it not a fact that the system you've just described, the legal framework you've just described is something employers are routinely taking absolutely no notice. They
would take the view that being taken to the Anti Discrimination Commission as being thrashed with a wet lettuce, and they would take the view that there is nothing to be concerned about so they country to ignore it. Is it not a case that not only is it not as effective as we would want, but it just isn't working at all, and we actually need to fundamentally change the Act, root and branch, so that people have a very clear message that discriminating against people with disability is against the law and unacceptable?
COMMISSIONER GAUNTLETT: I'm not sure I'm willing to use such evocative metaphors as whipping people with a wet lettuce, Commissioner, but what I would say is the point you have raised about employers perhaps not considering some of these laws appropriately is one that has a fair basis to make. However, we need to create a legal system going forward that both protects the rights of people with disability, enables them to be potentially represented by a third party so that they do not have to bring an application for discrimination for themselves, much like the Australian Competition and Consumer Commission can do in areas such as consumer protection, but at the same time we want to create a system which is simple and fair so that employers do not feel anxious about employing people with disability, but that we create a system where employment flourishes. And to do so there is a balance between having regulation that is fair, strong and rigorously enforced but also trying to create a circumstance where discussions about training of staff, of how to have difficult discussions concerning communication can take place.
In my witness statement I refer to an article by a group of Canadian academics, one of which the lead author was Bonaccio, and in that particular article that is referred to, they note some of the concerns that employers have in employing people with disability from a psychological perspective. We need to, yes, have very effective laws, and they need a significant review. But that cannot be distanced from other issues such as the mindset of employers of how to undertake employment.
It can also not be distanced from issues such as housing, public transport and home support. We need to ensure that people with disability can get to work, and can get to work and be fit and healthy when they are at work to discharge their responsibilities.
So I agree with what you've said to a limited extent, but I think it has got to be part of a broader review of disability policy for generally to achieve the outcomes which you assert.
COMMISSIONER RYAN: You described to us what had to happen for a person to bring a complaint to the ADB under the DDA. What chance is someone whose default position is the DSP, who possibly earns the equivalent of $20,000 a year in their three day a week part time job, what chance is there of them participating in that process at all?
COMMISSIONER GAUNTLETT: Well, they can participate in the process because
to bring an action to the Australian Human Rights Commission, it is a cost free jurisdiction. But, whether they participate effectively is what is an important issue, and I think what I would say to that is there is a significant concern that they would need to seek legal representation, and that is a problem.
COMMISSIONER RYAN: Yes, it is. That's impossible, isn't it?
COMMISSIONER GAUNTLETT: The way to get that person appropriately represented is the funding of advocacy, the funding of representative organisations, and it is enabling a representative organisation to have standing to bring the claim on their behalf to ensure that their rights can be enforced.
COMMISSIONER RYAN: Okay. In your submission to the Commission, and to the Issues Paper and even today, by your own observation, only seven of the top rated ASX listed companies has a Disability Action Plan. That would suggest, I think that was code for "This is not something that is top of the mind in the big companies of Australia". You have also said the labour workforce participation rate has remained 30 per cent lower for people with disabilities than for the rest of Australia, and that that has been the case for a really long time --- decades, in fact.
If we were to make progress quickly on this, what are among the 30 odd recommendations in the Willing to Work and some additional ones that you've got, where have we got to start, because I suspect governments are looking for advice as to where we might start to make progress quickly.
I suspect you are the person that is likely to give this advice. Where have we got to start at its most urgent?
COMMISSIONER GAUNTLETT: I would reform the Workplace Gender Equality Agency to have a disability arm to it, to correct data on that perspective.
I would undertake a national education campaign on this issue.
I would reform the Disability Discrimination Act to provide standing to representative organisations to bring claims on behalf of individuals.
I would provide funding for the equivalent of the Australian Human Rights Commission to undertake the process which we foreshadowed to act as a disruptor to provide information and questions.
I would look closely as reforming the Disability Employment Services system to ensure that in that particular system that there was longer requirements before payment took place to ensure that people were placed in not just a job, but a good job.
And, finally, I would look very closely at reforming the Disability Support Pension and payments of that nature so that if a person was to seek employment, that they
wouldn't have the concern that their benefits would be compromised if they were sick, or they tried and failed. We need to give people with disability a better option of trying and failing in employment.
One of the underlying premises, Commissioner, that is incredibly important, is, for Australia to have a good employment system relating to people with disability, we need to have a National Disability Strategy that is fit for purpose, because we need to also ensure that people can get to work easily, that they are looked after at home and they are in appropriate housing.
You can have all the employment programs in the world, but if you don't have housing for the person, they are never going to be able to seek employment. We know from research that to renovate a house is 22 times more expensive than it is to build with universal design upfront. So in terms of what you've requested, there are some very good recommendations in the Willing to Work which we say should be adopted. There is some reform to the Disability Discrimination Act should of course take place, but above all, underlying that, it needs to be appreciated that we need a National Disability Strategy that is rigorous and fit for purpose, and within that now we also probably need a National Disability Data Asset that accompanies that to ensure that when we implement policies, we know if they are good policies going forward.
COMMISSIONER RYAN: Thank you, Dr Gauntlett.
CHAIR: Has the Human Rights Commission ever sought amendments to the legislation to enable it to have the powers that the ACCC has to bring actions on behalf of others, bring representative actions and so forth?
COMMISSIONER GAUNTLETT: I couldn't answer that question. I've only been in the job for approximately 18 months. I suspect they probably have. At the moment we have a review of disability discrimination law under --- there is a free and equal review that is taking place. It is important also to acknowledge that it doesn't necessarily have to be the Australian Human Rights Commission that occupies that role. It could be a Fair Work Ombudsman, it could be a disability type regulator of that nature. So there could be potentially constitutional constraints with what is the role of the Australian Human Rights Commission in enforcing areas such as that, but I think the point that I was seeking to make was that there is a place for a systemic regulator, with teeth, to be able to enforce some of these issues so that where we had egregious human rights issues, or egregious issues of discrimination, they were enforced.
CHAIR: Enforcement is critical because the enactment of laws that impose penalties for certain behaviour will require conduct of a particular kind, not self executing. We saw that with the Banking Royal Commission of Financial Institutions. It wasn't a deficiency in the law. Nonetheless, the largest financial institutions proceeded to breach many of the laws, and one of the recommendations or findings made by a judge for whom you worked previously was "Just obey the law" and it is not
necessarily that simple to get people, particularly large organisations, to obey the law.
COMMISSIONER GAUNTLETT: It is a challenge to get large organisations to obey the law, but maybe the challenge to that is we need to get the largest companies in Australia to realise that sometimes the most important human rights issues are on their own doorstep. And one of the most important human rights issues in Australia that is on our own doorstep is the employment of people with disability.
When an organisation seeks to refer to such issues as the Sustainable Development Goals, disability should be part of how they reference those goals. But if only seven out of the top 50 ASX listed companies are filing Disability Action Plans with the Australian Human Rights Commission, it reflects a silence towards disability issues which is concerning.
When we talk about diversity, we often talk about gender, race, ethnicity and Aboriginal and Torres Strait Islander and people of a sexual orientation. Women have disabilities, Aboriginal and Torres Strait Islander people have disabilities, Culturally and Linguistically Diverse people with disabilities. People with diverse sexual orientations have disabilities. You are not appropriately considering diversity if you don't consider disability in that discussion.
For the area for employment of people with disability in Australia to improve, and improve in a way that is profound and different, we need the boardrooms and the Chief Executives of Australia to see disability as the equivalent of other diversity characteristics and step forward and seek to make a change.
CHAIR: Thank you, Dr Gauntlett. Perhaps we might see that as part of the Royal Commission's work in due course. I want to thank you and your Office on behalf of the Royal Commission, for the assistance you've provided in the responses to Issues Papers and other forms of engagement with the Royal Commission. It has been invaluable, as has your evidence today, the documentation you've provided us with, and the ideas that we will have to grapple with as we continue our work and particularly of course in this area.
Thank you very much for your contribution today and more generally.
COMMISSIONER GAUNTLETT: Thank you very much, Chair.
MS EASTMAN: Thank you, Dr Gauntlett.
Commissioners, we will adjourn now till 12.20 Sydney time, 11.20 Brisbane time.
THE WITNESS WITHDREW
MS EASTMAN: When we come back, I will ask to go straight to Brisbane to Ms Fraser who will deal with some of the evidence from witnesses who haven't come in person to give their evidence to the Royal Commission, and then we'll turn to our final two sets of witnesses for the day.
CHAIR: And that will be done by you, you will take those witnesses?
MS EASTMAN: Yes.
CHAIR: All right. It's now 12 noon Sydney time more or less. We'll adjourn until 12.20 Sydney time, 11.20 Brisbane time. Thank you.
ADJOURNED [12.03 PM]
RESUMED [12.24 PM]
CHAIR: Yes, Ms Fraser.
MS FRASER: Commissioners, I would like to read into evidence the statement of a witness who uses the pseudonym "Jamie". You will find a copy of Jamie's statement sworn 18 November 2020 at Tender Bundle Part A, Tab 15. I ask you to tender this statement into evidence and that it be marked 9.25.
CHAIR: Yes, that statement can be admitted into evidence and marked Exhibit 9.25.
EXHIBIT #9.25 STATEMENT OF "JAMIE"
MS FRASER: Thank you, Commissioners.
I will now read parts of Jamie's statement. When reading these parts of Jamie's statement, I will read them in the first person.
I am a 58 year old man who has a vision impairment. I am a recipient of the Disability Support Pension (permanently blind). When I was 13 years old I was involved in an accident. I sustained an Acquired Brain Injury, which primarily impacts my vision. ....
.... I have completed a Bachelor of Behavioural Science, a Master of Human Services and a Master of Social Work. ....
.... I engaged in a number of volunteer work opportunities to develop skills within organisations, with the hope of ultimately obtaining paid employment in the social services sector. My volunteering experience spans over 20 years ....
Despite my experience gained during these volunteer positions, and how much I would succeed in these positions, I would make numerous applications for paid employment with these organisations but I was never successful. I would, however, be kept on as a volunteer within these same organisations.
I have also interacted with several Disability Employment Services (DES) providers. Based on my experience with these DES providers, I believe it is a broken system without adequate resourcing available to properly assist people with disability to obtain meaningful employment. There appears to be a lack of accountability ....
During the approximately 30 years of my engagement with DES providers, I was offered an estimated 6 employment opportunities by DES providers. .... I was also never asked to provide a copy of my degrees.
Prior to commencing tertiary education, I had over 7 years of significant paid employment as a clerical assistant in both the public and private sectors. I took, and scored highly, in the public service test to enter the public service.
My first paid employment since completing my tertiary education, and in over 27 years, was in mid 2019 .... at an Australian Disability Enterprise ....
At one particular ADE, I was paid approximately $120 per fortnight due to a wage assessment.
I was paid an hourly rate of $3.51. This amount is significantly lower than the minimum wage of $19.84 (current as at 1 July 2020). For me, this amount of income is not nearly enough to cover the necessities such as rent or mortgage repayments, bills, and other essential groceries or personal items.
Based on my experiences with employment at ADEs, I believe that the law does not adequately protect people with disability from exploitation in workplaces, nor does it ensure that people with disability are paid a fair wage.
There is a need for a person centred approach to employment for people with disability. When people with disability wish to obtain employment, it is imperative that their skills, knowledge, experience and level of education are taken into account.
Commissioners, I would also like to tender the statement of Deborah Fullwood. You will find a copy of Ms Fullwood's statement in Tender Bundle Part A, Tab 49. I ask that Ms Fullwood's statement be tendered into evidence and that it be marked Exhibit 9.26.
CHAIR: Yes, that can be done.
EXHIBIT #9.26 STATEMENT OF MS DEBORAH FULLWOOD
MS FRASER: Commissioner, Deborah is Rohan Fullwood's mother. You may recall Rohan was the first witness for this hearing who gave evidence about his experience on Monday morning in employment, including 18 years at McDonalds.
In providing her statement, Ms Fullwood wants to make the Commission understand some of the underpinnings that have supported Rohan's success, and the institutional and bureaucratic barriers that have hampered Rohan's success and continue to do so.
Ms Fullwood's statement details issues encountered by Rohan and his parents in relation to Centrelink income reporting obligations, and the treatment of financial contributions provided by Rohan's parents.
At paragraph 13 of her statement, Ms Fullwood describes the system of reporting income to Centrelink as a complicated and difficult process and something that Rohan is unable to do alone.
Ms Fullwood details the support provided to Rohan, particularly by Rohan's father, in reporting Rohan's income to Centrelink every fortnight for the last 20 years. Ms Fullwood's view is that the system of reporting income to Centrelink in its current form is a real barrier to people like Rohan maintaining employment.
Within her statement, Ms Fullwood acknowledges that stable housing is a major factor which has impacted positively on Rohan's life. The provision of stable housing is something that has allowed Rohan to become familiar with his local stores and their employees, his regular travel routes and his fellow commuters. These familiar local touch points have helped to facilitate Rohan's long term employment and keep him safe.
Thank you, Commissioners.
CHAIR: Thank you.
MS EASTMAN: Commissioners, our next witnesses, as you can see on the screen are collectively Get Skilled Access, which is an organisation founded in 2017 by Dylan Alcott and Nick Morris. And we've asked some of the members of Get Skilled Access to come and talk to us about their work and their experience of people with disability seeking employment. So I think we first need to just deal with some oaths and affirmations.
CHAIR: Yes, thank you very much for coming to the Commission to give evidence today. We very much appreciate your attendance. If you would be good enough to follow the instructions of my associate who will administer the oath or the affirmation as the case may be. Thank you.
MS DANI FRAILLON, AFFIRMED
MR ZACK ALCOTT, AFFIRMED
MS STEPHANIE AGNEW, AFFIRMED
CHAIR: Thank you very much. Now, Ms Eastman will ask you some questions.
EXAMINATION IN CHIEF BY MS EASTMAN
MS EASTMAN: Commissioners, you have a joint statement, but what I first might do is start with each member of the panel and surprise them and ask them a little bit about their role with GSA.
Stephanie, can I start with you. You are Stephanie Agnew?
MS AGNEW: Yes, that is correct.
MS EASTMAN: What is your role at GSA?
MS AGNEW: I am the operations assistant at Get Skilled Access.
MS EASTMAN: What does that role involve?
MS AGNEW: It involves organising some of our work with clients. I also do delivery to our clients. We have a large number of associates with disability and I
assign them work and also assist in any issues that they may have.
MS EASTMAN: Next to you in the middle is Zack.
You are Zack Alcott?
MR ALCOTT: Correct.
MS EASTMAN: What do you do at GSA?
MR ALCOTT: What do I do? Get yelled at by Steph a lot. No, I am the senior engagement consultant, so I work on new, current clients, on both project development, project delivery, consulting. I also assist in the delivery of training and implementations. I run our Disability Inclusion Action Plan Department as well as a lot of work in the events industry space.
MS EASTMAN: And Dani, Dani Fraillon, what is your role at GSA?
MS FRAILLON: So my role is I am the COO. I'm also a part owner of the business. And so my role entails pretty much a lot of things that are centred around consulting. So I am project manager, large products, sports for all, we do a lot of the tender writing, a lot of business development, a lot of work with other Government Committees, so I sit on the COVID 19 Government Committee for People With Disabilities and the Disability Employment Action Committee, so I have a wide range of roles, and support the organisation to grow substantially.
MS EASTMAN: And collectively you've prepared a statement for the Royal Commission. Can we take it that what you've said in the statement collectively is true?
MS AGNEW: Yes.
MR ALCOTT: Yes.
MS EASTMAN: I like the nod of all three.
On that basis, Commissioners, can you receive into evidence the joint statement and mark it Exhibit 9.27?
CHAIR: Yes, that can be done.
EXHIBIT #9.27 JOINT STATEMENT OF MS DANI FRAILLON, MR ZACK ALCOTT AND MS STEPHANIE AGNEW
MS EASTMAN: You have told the Commission that:
GSA is a 'for profit, for purpose' organisation which works with clients 'to provide real life, tangible, emotional experiences that drive inclusion, productivity and profitability'."
So this is an organisation founded in 2017. Why was GSA founded?
MR ALCOTT: Yeah, it's a really good question. You might not have picked up before, but Dylan is my little brother.
MS EASTMAN: Who? Who is Dylan Alcott?
MR ALCOTT: Yeah, so Dylan Alcott is Paralympian, triple gold medallist, I think 11 time Grand Slam winner, he's won a Logie, he's my little brother and my parent's number one son. Dylan approached myself and our father, and said, "I want to make disability sexy". Now, I feel creepy saying that so I say "contemporary", but he felt the disability space was viewed and spoken about very medical model of disability, in his words, "old, dusty, Zimmer frame", and this is how both people spoke about disability but disability was viewed. And that's not how he perceived either himself or the disability community, and he said, "Why can't we talk about the productivity of people with disability when they are employed, or the great retention rates, or less sick days that they take because they make such great employees?"
And then on the flip side, "Why can't we talk about what customers or what a great business opportunity it is to have an accessible organisation, or an accessible public sector where community involvement is a lot higher?" With all of that said, we started GSA as a real destructor model consulting to, as I said, organisations both private and government, to better help them understand disability, whether it be from an employment standpoint, a stakeholder standpoint, community engagement or customer service standpoint.
And one final thing, that Dylan and our whole organisation is really passionate about is, he was sick of able bodied people speaking to able bodied people around what people with disability needed. He has come across and experienced, and I'm sure a lot of people with disability have experienced this their whole life. With that being said, our organisation, we have around 30 staff, all of us are --- well, there is 24, 25 of us that have disability, and then the ones of us that don't have a disability all have a lived connection to disability.
So disability is at the front of everything that we do.
MS EASTMAN: So Oliver Hunter ---
MR ALCOTT: Yes!
MS EASTMAN: --- who was here this week gave us a little window into his experience of working with you, and also we had a bit of a discussion about music
festivals and wheelchair surfing.
MR ALCOTT: Yes.
MS EASTMAN: Dani, can I ask you, what is the business model and what is different about the business model for GSA to other organisations?
MS FRAILLON: Is the model different? There is probably many business models that are similar, but, however, our fundamental principle is along the lines that Zack spoke about. So we run an associate model for our business predominantly, and one of the reasons why we run an associate model in a sort of consulting business model framework is because we want to give our people, our associates as much flexibility as possible in the way they choose to work, when they choose to work, the other work that they might want to do as part of their careers outside of GSA, and so it is a really important piece of the puzzle for us. We are also a start up, so we can't suddenly employ so many people, I'm ex PwC, so having a huge number of consultants has a significant financial burden on the organisation. So as a start up, we also bring people in on an as needs basis.
And because we span --- so all of our associates have disability, we don't specialise in a particular type of disability, we actually cover as many disabilities in our associates as possible, including lived experience --- I have a son with disability --- and I think that is a really important piece of the puzzle that we want to employ more people with disability, in fact we're always looking for more associates, and they can work in and the way that is most appropriate for who they are and what their lifestyle is. And that's a really important piece of the puzzle.
I think the other part of our business model, and is a part of our business model, I'm not sure, we know who is a GSA person because they want to challenge the system and they are typically younger. I'm the oldest person in the business, and they are typically younger and we really want to change society through people of another generation coming through and saying, "This is how we want to live our lives", which is a really important piece, I think.
MS EASTMAN: Stephanie, one of the fundamental principles of GSA is when disability is being discussed at the table a person with disability should have a seat at the table. From your perspective, why is that a fundamental business principle?
MS AGNEW: Absolutely. So I am completely blind myself, I was diagnosed at the age of 19 with a degenerative eye condition, and I now navigate with a guide dog. It is so important that we get to say, as a person with disability, what will help us and not have people assume what we need or what we might require, and be able to have voices ourselves and have the choice and control to be able to do that.
MS EASTMAN: Now, one task that you took on fairly early on in the business was the design of what you call an "inclusive culture assessment tool", and I want to ask you about this tool, how it was designed, and then what has come out of that process.
So who would like to tackle that question?
MR ALCOTT: Definitely Dani!
MS FRAILLON: I caught the handball!
MS EASTMAN: I will try to make sure that we do this all evenly, so Dani, if you answer all the questions I am going to have to come back and ask ---
MS FRAILLON: No, I don't want to answer the questions, but this is my area of expertise.
I think it is important to think about why we decided this was a tool that needed to be created. So my background is in culture, leadership, organisational change. And coming into the business, I think it was 18 months old when I came into the business, GSA was doing a whole lot of really great stuff around immersive experiences, around training for people. But one of the fundamental questions about being in employed in an organisation is do you or do you not fit the culture, and that is for anybody. And able bodied, people with disability, whoever it is, is, do I fit the culture. And what became quite clear to me is that what we were seeing was that even though we were doing quite a lot of work with an organisation, they may not have an inclusive culture overall in which case a person with disability might have all of the technical aspects of their needs looked after, so they might have the workplace adjustments or other things taken care of but, look, they might take a long time, people might be a bit funny about having to employ somebody and put those in, and then we were hearing a lot about people with disability not feeling like they fitted necessarily.
So this whole idea of how can a culture be more inclusive of disability and what were the elements were, we discussed as a team. And so, rooted in the fundamental aspects of what culture is, which in the principles of culture being that it is behavioural --- it is around behaviours and beliefs, systems and processes, and symbols that people see, we then went out to a huge number of people with disability and said, "What does an inclusive culture look like to you, and what are the elements", and we distilled those down into what we call the seven values of inclusion.
We developed an assessment tool, so a survey tool that we use, and we trialled this a number of times to ensure that we were actually getting the answers and looking at the culture as we anticipated it should have --- the results should have been come back with, and then we did a very large piece of work with the Department of Education in Queensland, and that piece of work helped to really distill this particular tool which we now use across the vast majority of our clients to understand those elements of culture. It is very difficult to measure unconscious bias. I would say it is impossible to measure unconscious bias, but what you can do is understand what are the beliefs, behaviours, systems and process that an organisation has that makes it inclusive or not.
MS EASTMAN: So it is easy to say "we're inclusive and we commit to inclusion, it's a really good idea", but it is another thing to translate those words into deeds?
MS FRAILLON: Absolutely.
MS EASTMAN: The starting point is coming back to core values of an organisation. I will put up on the screen, and I hope you can see this, you've included in your statement --- Commissioners this is paragraph 13 if it assists --- these core values.
I just want to ask you about how these came about, as I understand it you did a very significant survey with lots of questions, and then this was the distillation of what came out of the survey and the consultation process; is that right?
MS FRAILLON: Yes, that is correct.
MS EASTMAN: Looking at these, we have a number of dot points there. On one view I say these sort of seem like the obvious, but obviously there was a process to get to the identification of these values that help build inclusive cultures. Empathy: how do you help people understand or feel what another person is experiencing within that frame of reference? So, again, I'm trying to understand how you start to translate these values and the words into deed or action.
MS FRAILLON: Let me help you here. I will get Zack and/or Steph to talk about immersive experiences because empathy sits very well in what people understand and learn from those.
MR ALCOTT: I will kick in and move it to Steph from her experience because she is one of the associates part of it. But for all the immersive experiences --- we do this when we first start working with an organisation, specifically large scale organisations. We work with the senior leadership team to help them better understand disability and how we do it is we actually, whether it is at a customer service, let's say a supermarket or if it is within an office, we run three hour sessions with the senior leadership team and they experience what it's like to have a disability within their workplace.
MS EASTMAN: How do you do that?
MR ALCOTT: We do it by having the associates, a whole team of associates covering across wheelchair users, low vision blind, intellectual disabilities, autism spectrum, neurodiverse, I know I will leave one out but it is very broad. Very broad, and the senior leaders will be paired off with those associates individually.
For example, Dylan, who is in a wheelchair, will be partnered with the CEO. The CEO jumps in a wheelchair, and then he or she goes and tries to shop with Dylan, and actually experience what it is like to get something off the top shelf, or what it is like to navigate around their office space when they try to get to the printer.
Steph, you've been part of these immersive experiences; do you want to explain it from your part of it, you know, the interactions with senior leaders.
MS AGNEW: It is extremely powerful. So my role obviously being blind I --- we're able to either blindfold or give the senior leaders frosted glasses, so they either have low vision or complete blindness, and they are given a white cane, and I give them a little bit of a demonstration of how to use it, and we walk around that organisation or the venue that they want to experience and they experience pretty much what I experience as a person with either low vision or blindness. And it really helps them to walk in our shoes and think about things differently and really think about accessibility and inclusion within their organisations.
MR ALCOTT: And just to kind of wrap it up as well, it is really great for a few reasons, because we create a really safe space. So these senior leaders --- and the reason we do it with the senior leaders is they can have the most influence throughout such a large organisation. They point a ship in the direction on a whole different way, whether it be budget, culture, employment, et cetera. And to create this safe space, sometimes senior leaders have actually never met or spoken to someone with a disability. So this is a really great way for them to both ask questions in a safe environment, as Dani said, there is a certain type of GSA person, we're very open, welcoming, we call people in, not people out. So they can have those really, what the senior leaders might think is a silly question, isn't, it's actually a great question because you are learning about disability. So there is that side of it.
But also what is really cool is they are actually on the job live problem solving. So when we talk about the access or design for something, if the property manager or the head of the office space or whatever in these sessions, "If I just change this slightly, would this actually make it easier for you to come to work?" And the answer is "yes". And they witness first-hand and experience what such small changes or what might seem as a small change can make such a large impact for a person with disability, whether it be, as I said, to get a job or work within an organisation or to use the organisation's services independently.
MS EASTMAN: Building on that empathy, to start to factor into the other core values, so Zack has just said that capacity to see a problem and solve it, that reflects that value of openness, is that right?
MR ALCOTT: Yes.
MS EASTMAN: And then curiosity, why would curiosity be a core value of inclusive tools?
MS FRAILLON: That is a great question. The answer is, in a conversation we just had prior to coming into this session with a group, with our team, and Dylan puts it beautifully. He said just because he is in a wheelchair doesn't mean he knows everything about every other type of disability. In fact he doesn't. He gets asked, for
his gold medals, what does the Braille say, and, "I can only guess, because I don't read Braille". So even before you meet someone with disability, for the first time people are often really too scared, as Zack said, to ask questions and to say "What is it you need, how would you like me to speak to you? What are the things that are appropriate?"
The conversation we were having just before was, is it a person with disability, is it a disabled person, and there are many different sets of thinking around just that piece of language. Neither is right or wrong, you need to understand what that person wants. And I think what often happens with disability is it gets lumped into this, "Well, here's a person with disability and so we can do this, we can't do that", whereas actually it's about asking the questions. If your organisation is not a curious organisation, then naturally in its culture, and it is a telling organisation, then that is a very, very difficult culture to bring somebody in because the person will not have the opportunity to share what is important to them.
That is the same for somebody without disability, but even more so the case for somebody with disability.
MS EASTMAN: So, looking at each of the 7 values, I step back and say these are not necessarily disability specific, are they?
MS FRAILLON: No, that's right.
MS EASTMAN: These are values that may reflect inclusive cultures across the board, regardless of disability or other characteristics.
So what is it about these 7 values that you think start to make a difference in building inclusive cultures for people with disability?
MS FRAILLON: Well, it's a really good question. We actually had a training session yesterday with all our associates in the organisation on the LGBTQIA+, and what was fascinating was that at the end of it, we all said the sort of things we need to be aware of for inclusion from that perspective is basically the same sort of things that an organisation needed to be aware of to be inclusive for disability.
So the fundamental principles are that the values are not necessarily different to any organisation. What is different is that in the survey, we have the questions are very much designed with a disability lens on them, and so some are quite specific about access, some inclusive design, so the more technical aspects of disability.
And some of them, for example, like accountability, gets into the process of --- which some people might find difficult --- which is potentially coaching a person with disability, or putting a person with disability onto performance management. So there are certain --- or recruitment is a really big piece of the puzzle. How do you have a recruitment team that has these values front and centre, and does it in a way, for example, instead of saying --- asking a person coming in for a job, "Have you got
a disability" and then having to fill that out, which is horrendous and most of our team say they would never touch that, I would never answer those questions, is asking a question like, "What is it that we could do for you that is going to make your interview successful?" For anybody who is going for that role.
So we're trying to, whilst being specific in creating an inclusive environment for people with disability, actually do it in a way that everybody benefits and it doesn't become this sort of "We have to do this to decide". As soon as it becomes something we have to do this or it is going to cost more money or it will is going to take more time, then people will be less likely to do it. So we are trying to put it into the context of the whole organisation's success.
MS EASTMAN: So I want to move to some of the particular initiatives that you've tried with organisations in Australia to build on these inclusive cultures. And we asked you, when preparing the statement, not to identify any particular clients by name, and so you've described your clients as 56 different organisations covering a wide range of industries and areas within Australia, and they range from small to medium enterprises up to ASX top 50.
So your process is that the client comes to you, and for the most part you've got a mixture of both private and public sector. Is that right?
MR ALCOTT: Yes, I think they either come to us or we approach them, it depends. I think in a potential government standpoint, it is probably a bit more of a two way street where we would approach departments with ideas or thoughts about programs that might be implemented.
And in the private side of things I would still say it is probably 60/40, 60 comes to us and 40 us making connections and getting introduced to organisations. There is a real changing of the tide, I think. Organisations, I think, just by the listed there, the sheer amount of organisations but also the real diverse mix of industries shows that it is not just potentially healthcare or the Department of Social Services interested in disability; it is really broad, from live music to events to sports organisations.
And then, in regards to the mix, we tried to figure out the other day, 70 per cent government, 30 per cent private?
MS FRAILLON: Yes, roughly.
MS EASTMAN: So the clients come for quite a range of reasons, they may need assistance with inclusive strategies and building inclusive cultures or developing particular programs. But you also have clients who come to you for advice on disability inclusion action plans and also accessibility audits.
We heard a little bit about action plans over the course of the past few days, and we've just had the Disability Discrimination Commissioner, whose job it is to do work around action plans.
MR ALCOTT: Yes.
MS EASTMAN: So can I perhaps just go directly to the action plan.
Zack, this is something that you do.
MR ALCOTT: Correct.
MS EASTMAN: Is there some apprehension about action plans because you can put a lot of energy into drafting an action plan and it looks good, and you have a glossy brochure and have a morning tea and it's fabulous, and then 2 years later somebody says, "Did we have an action plan?"
It is one thing to draft, another to implement, and I know you've only been going at this for a number of years, but what has been your experience in drafting action plans that actually work?
MR ALCOTT: Yes, first of all I completely agree with you the old "Nice, shiny, here is the document", and it lives in the drawer of the one person that wrote it, for large organisations, and that was really the common conversation or feedback we were getting when we first started, the organisation. We would talk to businesses who said, "Yeah, we had an action plan, had it for three years, it's about to expire, I wrote it, no one else really knows about it". And it really got us thinking around the faults around it, and for a plan to work from creation to implementation across whether it be two, three or four years of the plan, it is really important to both bring --- engage senior leadership in the process of creating the plan, spreading the reach as far as you can, when we are talking or doing discovery sessions --- so we run discovery sessions with every department and try to get as many senior leader or key stakeholders that will be a part of this plan. And I think probably I did miss a step: it is crucial to understand the business, so we're coming in, consulting to these organisations and it is not a --- I guess this is at the heart of GSA on a whole, is actually understanding the business before telling them what to do when it comes to disability and inclusion. Because you only make --- one chance to make a first impression when we are implementing disability projects, training, plans, whatever, and I think if you miss the mark it can come across a bit tokenistic, tickbox, yes, we are doing that because we have to, and move on. Whereas if you understand the business, and bring as many people in to the program, you are setting yourself up for success.
So when we are drafting these plans and when we are at the draft stage and we socialise the plan, and we've run discovery sessions, it could be myself in the room or three of our associates with different disabilities, and it is the same almost for the immersive experience, the senior leaders are asking, "What is it like to get a job?" Because they are supposed to be learning but they are also contributing on how this plan is going to be successful, and what the goals are going to be. They are ultimately helping us write these goals. And then when we socialise the report for
the first time, they've got to be comfortable with it. There is no shock. It's not like we've dropped a draft on their desk and said, "Congratulations, Head of HR, you are now going to employ 100 people with disability over the next three years". They've been along the whole time and there is that level of confidence and that buy in across all departments, so it's not just people and culture with a plan trying to engage marketing, trying to engage sales, trying to engage all these different departments and they are like "Get stuffed, I've got enough on my plate". They know about it. They have worked on it. That is that side of it.
And then next, for it to be sustainable and for the longevity of it, is to understand what it is going to cost and what needs to be done to achieve these goals. It is easy to write the goals down, and as you said they are great words on a page and you could do a morning tea, but it can't end there. So what is it going to take to actually achieve year 1 goal? Write it into the budget. What resources do we have, and what we do is work with the organisation and say, "All right, for this Year 1 goal for employment, we need to look at doing a recruitment review, we'll train up staff, we'll create inclusive guidelines and it will take X amount of hours at X price". And that is built into the year plan. And we build out a project plan.
I was speaking to one of our clients actually last week about we've had a really great year, believe it or not, in COVID 19, with one of our clients that launched a plan in December, International Day of People with Disability last year, and have achieved every goal that they set out to do within the year. And that is huge in COVID --- within the year that we've had, it is a real testament to their level of commitment. And I kind of asked them, "Why didn't you just put it in the too hard basket"? And they said, a few things, one they were comfortable delivering them because we set everything in the structure, we worked with them end to end. So we were always working with the touch points and they knew they could achieve because we were there supporting them, and there was an element of both flexibility and actually openness to the sense where they can speak to us and let us know that "Actually we are going to struggle to get this done right now", but they felt comfortable actually saying it, versus potentially --- they felt potentially, if we didn't feel comfortable with this, they might stick their head in the sand and say, "I don't want to talk about a failure in disability because I feel like I've let someone down or I'm discriminating". Instead they said, "Hey, we need to work either harder on this or it might be a 1.5 year goal", compared to just ignoring it. Obviously that year on process repeats itself year on year until the end of the plan. And finally, just celebrating. Celebrating the good work.
Organisations on a whole can get a lot better actually talking about the good things they are doing in this space. A lot of the times people are doing good things but they don't talk about it, and it's almost up to people with disability just to stumble over it.
MS EASTMAN: And do they, I mean it is early days and often action plans take a while, not always being able to be achieved in one year, but do you have a role in coming back and building in the accountability and auditing of how successful an action plan actually is?
MR ALCOTT: Yes, absolutely. So I guess being part of working with them the whole time is that. It is the regular check ins. We, for these organisations, will have monthly almost like governance meetings where we catch up with them and talk about how it is progressing, what are the outcomes, have they, could be, and it is probably a reflection on our work on a whole.
I know Dani is going to jump in again soon, but reporting, actually getting the rich data and information --- because I guess when we talk about this space there can be a lot of "Oh yeah, we did this, we felt really good", and potentially no one got a single job out of it or people with disability didn't use the product or whatever. So we're really passionate about actually being held accountable of what we've done with an organisation and that is shown by the results.
MS FRAILLON: I was going to say, Steph, it would be interesting for you to jump in here around, all our clients start from a different base level. And I think that is really important to think about, isn't that right, Steph, if you give an example of some of the clients from a had never and this particular client that Zack is talking about hadn't employed anybody with disability before, it had no experience with somebody with disability, so their diet was very different to somebody who had been doing work on this for some time.
MS AGNEW: I suppose it comes down if you are at that very new level, some people have never interacted with a person with disability and they have this fear about speaking to somebody with disability. I think that is a really important part of GSA, is having people with disability delivering our clients their diets, or the training that we're doing, and really helping them to feel comfortable. I think that is such a big thing. I know for me, speaking to some clients, some people are shocked, like "How did you send me an email, how do you do that"? And I get the opportunity to explain that I have a screen reader, this is how it works, and I sometimes even will screen record it so that they can see how it works, and it gives them that understanding and they realise that it's not actually that scary to talk to someone with a disability, because it's not at all. It's normalising it.
And once they have that they can really get involved and see the changes that are made, and see that people with disability can be really successful, and they want that in their business.
MS EASTMAN: In the joint statement that you've done, you've identified barriers that people with disability have identified for seeking, maintaining and progressing in employment. That is paragraph 18. But you've also identified the barriers that you hear from employers that they see, perhaps perceived real or otherwise, barriers to employing people with disability. That is paragraph 21. Taking it from both sides, from the perspective of a person with disability, and then on the side of the employer who says, "Well, we lack understanding, we don't have the resources, there aren't enough candidates, we're concerned about our capability and we don't feel equipped", how do you reconcile the perception of barriers on both sides? That's
a hard question.
MR ALCOTT: Could you solve this whole thing right now and answer in 2 minutes?
MS AGNEW: I want to give an example, and it probably doesn't quite answer your question but it may to a point.
I went to --- before I started working for Get Skilled Access, I went to a job interview and I was asked how am I going to get to work. And it was an assumption, and the way it was said that because I was blind, I wouldn't be able to come to work, and so how did I expect to get myself from my home to my work, and I wouldn't be suitable, basically.
Whereas when I had my interview with GSA I was asked, and said, "Do you need any assistance with getting to work", not that that is the employer's responsibility. But it was a whole different mindset. It is about people can be really scared to ask the questions, and if you are sitting next to a colleague that doesn't have disability you will say --- oh, you will just ask a question. Some people get really scared to ask the questions to a person with disability, but it is just about making sure that you ask what they need, and removing those barriers. And I think Zack can speak a little bit about workplace adjustments as well, and some of the misconceptions around the costs of those workplace adjustments.
MR ALCOTT: Brilliant. So I think before we move on to the employer, I think there are a couple more around people with disability that is probably worth mentioning, whether it be lack of positive career counselling from school. So when we get --- and I will use Dylan as the example. Dylan was, I hate to admit it but he is a very clever boy, but was excelling at school and had ambitions to get into the corporate world. He always --- sport and all of this hasn't always been his career progression. And he spoke to a counsellor and a --- a career counsellor, and the career counsellor had nothing for him. It was almost like well ---
MS EASTMAN: Dylan had a career counsellor (overspeaking)
MR ALCOTT: Yes, Dylan was not as cool and handsome as he was now, he was 16 without eyebrows and not very good at tennis yet, so don't raise your eyebrows too much, but he couldn't --- he wasn't really set up for success. They didn't say, like, all right, "Mate, you are studying business, you are studying law, you are good at maths, here are some options for you to explore. You can talk" --- he can definitely talk --- "here are some options for you to explore where it was almost like, "Mate, we've got nothing for ya". Like, "We don't know". And for a young person, that's shattering, especially living with a disability, that they are already getting put into a box of --- this ceiling is so low for you that we can't have these conversations on what your future looks like when it comes to employment.
MS FRAILLON: And can I just add to that. My son has intellectual disability and
was assessed and actually went to a special school. And whilst they did some preparation for moving outside of school, there wasn't a great deal. And then, you know, the issue is not only about the complete lack of career counselling but also when you are assessed for the DSP, the assessment for work capability is done through that same assessment, which is firstly completely inappropriate to have the two assessments for two different purposes, but the second is it is in a situation that doesn't help particularly people with intellectual disability to answer successfully or, indeed, in a way that is focused on their ability to be employed.
So, as Zack said, they get put in a box and that box isn't necessarily correct for that individual. And then that is where they stay unless you yell and scream, like I have done over the years. But there are few people who would be as persistent, if you like, on trying to change that system and have the capability to be that way. So I think what Zack --- the important piece of the puzzle is the move from school into either --- and career counselling into either further education, some sort of other employment, but, as we say over and over again, everybody talks about just getting a job for a person with disability as opposed to what is the career that they would like to pursue, and if they don't know, well, here are some options and what could you try.
So we talk much more around a person with disability’s career rather than just getting them a job, which I think is a critical piece of the puzzle.
MS EASTMAN: There is so much we could talk about. Can I ask each of you, reflecting back on your time at GSA, what do you see as key initiatives for the future of not only building inclusive cultures, but cultures that will open up employment opportunities for people with disability? I think one of our witnesses said that we can't all be the extraordinary, we can't all be able to achieve at the level that Dylan has achieved. And so how do we make sure that the Dylans of this world, who have achieved much, also pay the way for people who don't ever see themselves as achieving these great highlights that your brother has?
MR ALCOTT: I will let that slide, that you called him "extraordinary"!
So it is a really valid and fair point, and I think a couple of things on that, working with organisations to normalise disability, it might have been mentioned throughout this whole week around normalising disability and taking away the, you know", Steph, you are so inspirational by coming to work today and dressing yourself. And I think if we can normalise just disability and see past that, that one in five Australians just are seen as another Australian that should be able to go to work, should be able to live independently, should be able to have their own funds to spend on whatever they want. So I think that is really important. And I think secondly, and I've been reflecting about this the last week or so around GSA and our associate model, we have, as Dani and Steph have mentioned, such a diverse range of people that work for us with disability and they are not all Paralympians and they are not all keynote speakers, and it is one of my proudest moments about this disability is when organisations start talking about how much they love their associates that they are
working with, and it's not just, "Oh, can Dylan come in and fix disability for this business?", or "Can Dylan come and do a keynote and I can get a photo in front of him?". One of our biggest problems sometimes is people trying to poach our associates because they are so great, and I think that is --- just proves that you don't have to be extraordinary to do extraordinary work or to, you know, make --- be able to be employed and thrive and doing a great job in whatever role that you are doing.
MS EASTMAN: I think that is an excellent note to end on. Thank you very much for your time and the enthusiasm in telling us a little bit about your experience of people with disability finding, maintaining and thriving in employment.
Commissioners, that concludes the evidence. The Commissioners may have some questions.
CHAIR: Yes, thank you very much. I will ask Commissioner Galbally whether she has any questions to ask.
QUESTIONS BY THE COMMISSION
COMMISSIONER GALBALLY: Thank you for your presentation. I just wanted to ask you about paragraph 23a where you talk about the barrier of increased occupation health and safety complications, whether you could speak to that, please.
MR ALCOTT: As in the misconceptions of them?
COMMISSIONER GALBALLY: Yes.
MR ALCOTT: Yes, so I think there is probably, and I guess this could be a bit of a blanket across the employment of people with disability, of ‘it might potentially be unsafe, it might cost additional infrastructure to put in place in order to keep someone with a disability safe within an organisation’. In some cases there might be workplace adjustments that might need to be done, but there is probably a misconception or decision made before interviewing a person with disability.
MS FRAILLON: I can give an example. A great example was working with a client and we were talking about recruitment. They had a number of sites that were rural and remote. They actually had a person who was a wheelchair user apply for the role, and they said to us with great authority that they were actually not going to --- they didn't pursue with this individual because they felt that the travel would be too much for them, and there could be some more medical needs that they might have because they were a wheelchair user, and so therefore, it would be inappropriate for them to actually employ them into that role, having never spoken to the person.
And this comes into that whole idea of curiosity. There are so many times where we are given examples of people saying, "We felt we did the right thing", and they did it
with good intent, but they hadn't realised that having a conversation with that person might have actually put paid to any of their concerns, and some of that was an occupational health and safety and extra medical assumptions.
COMMISSIONER GALBALLY: Yes. Thank you very much.
CHAIR: Thank you, Commissioner Atkinson, do you have any questions?
COMMISSIONER ATKINSON: No, I want to thank you for emphasising the strengths of employing people with disability and the importance of not making assumptions. Thank you.
CHAIR: Commissioner Ryan?
COMMISSIONER RYAN: No, thank you.
CHAIR: Thank you very much, indeed, for giving your evidence and for preparing your statements, and also for the work that you are doing. We appreciate your attendance and contributions to the work of the Royal Commission. Thank you very much.
MS AGNEW: Thank you.
MR ALCOTT: Thanks for having us.
MS FRAILLON: Thank you.
THE WITNESSES WITHDREW
MS EASTMAN: Commissioners, that brings us to the final witness for Public Hearing 9, Ella Darling, who is here in the hearing room. We'll just come to the witness table. She will take a deep breath and have some water.
MS DARLING: I will be fine.
MS EASTMAN: Commissioners, you have a copy of Ella's statement, Tender Bundle Part A, Tab 16.
MS EASTMAN: First we have to do the oath or affirmation.
CHAIR: Thank you.
Do you mind if I call you Ella?
MS DARLING: Yes.
CHAIR: If you would be so kind as to follow the instructions of my associate who is next to you, and she will administer the affirmation to you.
MS DARLING: Hello.
MS PAMELA DARLING, AFFIRMED
CHAIR: Thank you, Ella. Now Ms Eastman will ask you some questions. Before she does that, on the screen you can see Commissioner Atkinson who is in Brisbane, who will wave, Commissioner Galbally is in Melbourne, who has also waved, Commissioner Ryan is next to me but he doesn't need to wave, and we're both in Sydney.
EXAMINATION IN CHIEF BY MS EASTMAN
MS EASTMAN: Let's start. Your real name is Pamela Darling, is that right?
MS DARLING: Yes.
MS EASTMAN: But you prefer to be called Ella.
MS DARLING: Yes I do.
MS EASTMAN: Today, would you like me to call you Ella or Ms Darling?
MS DARLING: Ms Darling is good.
MS EASTMAN: Ms Darling, you preparing a statement for the Royal Commission.
MS DARLING: Yes, I have.
MS EASTMAN: You put a lot of work into that statement?
MS DARLING: Yes.
MS EASTMAN: And what you say in the statement is true?
MS DARLING: Yes.
MS EASTMAN: And you have a copy with you?
MS DARLING: Yes, I do.
MS EASTMAN: Commissioners, a copy of the statement is behind Tab 16. If you could receive that into evidence and mark it as Exhibit 9.28.
CHAIR: Yes, that can be done, thank you.
EXHIBIT #9.28 STATEMENT OF MS PAMELA DARLING
MS EASTMAN: Ms Darling, can I ask you a few questions about yourself so we can get to know you.
MS DARLING: Sure.
MS EASTMAN: You prefer to be called Ella, and you are now 25 years old?
MS DARLING: Yes.
MS EASTMAN: And you live in your own house and that is near --- you have a twin sister?
MS DARLING: Yes.
MS EASTMAN: You weren't born in Australia.
MS DARLING: No.
MS EASTMAN: What would you like to tell us about where you were born and how did you come to Australia?
MS DARLING: Well, I was born in Romania and I was adopted when I was 5.5 and --- oh my god.
MS EASTMAN: If you want me to jump in at any time ---
MS DARLING: No, no, no, I'm just thinking what I am about to say. So when I was born in Romania I was adopted from my birth parents and then came to my Australian parents, and I've lived here for 20 years now, so it's been really good.
MS EASTMAN: And you've been to school in Australia?
MS DARLING: Yes.
MS EASTMAN: At the current time you work for the Council for Intellectual
MS DARLING: Yes.
MS EASTMAN: And you say this is your dream job?
MS DARLING: Definitely. I think giving a change for people with disability and making a better place, you know, I want people to have jobs like me, go to work every single day, happy. Feeling like I get appreciated, "Oh my god, I did something today, I did something well".
MS EASTMAN: What is the best thing about the job?
MS DARLING: You know, meeting new people, talking. You know, I did a story with --- I can't say, but I did it with one of the doctors and, you know, we just found it interesting about coronavirus, how we can be all aware together. You know, making a better place for the community and making it good. You know, be safe, all live together, be happy. That is something we should all have.
MS EASTMAN: So I know you are in the dream job now, but can I go back a little bit to when you were at school.
MS DARLING: Yes.
MS EASTMAN: And ask you when were you at school, what was it like going to school and how did you feel about school?
MS DARLING: Well, I did like school, and I did like having my friends and that, but they didn't understand my disability because, you know, it was an Acquired Brain Injury so they assumed I couldn't do anything and they would make me do colouring and that wasn't right, you know. Maybe they could have got a support worker and could have helped me and said, "Hey, we can help you with this?" instead of excluding me and treating me like I was a baby, and I didn't like that.
MS EASTMAN: When were you at school, did you get to do any work experience?
MS DARLING: No, I did not.
MS EASTMAN: When you were at school did anyone talk to you about what you might do when you left school?
MS DARLING: No, no one really did. And then I found when I got out of school, I thought, maybe I will get into a TAFE course or do something interesting, which I did for a little bit. And, you know, I got my first job at the cake shop.
MS EASTMAN: Yes. Tell me about the first job at the cake shop? How did you get that job?
MS DARLING: Actually, it was very interesting. One of the employments gave me a job at the cake shop because they thought, "Well, you are arts and crafty" so I'm really good with my hands and really good with beading, so you have to do stuff on the cake with that. And that was very good for a while, for 6 months. It turned out really well. Unfortunately that business shut down.
MS EASTMAN: So you were doing cake decorating?
MS DARLING: Yes.
MS EASTMAN: And in terms of doing cake decorating, did anybody teach you how to be a good cake decorator?
MS DARLING: No, we just all went in there doing the same thing, you know, they taught us that day, "This is what we got to do". Mostly just chatting and do what we usually do. It was really good.
MS EASTMAN: And how many days a week did you work at the cake shop?
MS DARLING: I think it was like 2 or 3 days. It wasn't very big.
MS EASTMAN: And then one day the shop closed down, is that right?
MS DARLING: Yes, they did. It shut down because the person got sick.
MS EASTMAN: And what did you do --- can you remember what you did after the cake decorating job? What you did next?
MS DARLING: Hang on.
MS EASTMAN: Can I ask you about hairdressing?
MS DARLING: I think the second one was the hairdressing. And I really liked that because I did the TAFE course. I did a Cert II course in Hairdressing and Beauty, so I had the skills, which was really good and she took the time and energy for that, which I enjoyed. But I think after that it got too hard for her, you know, because she couldn't pay me the right amount and the money. Got too hard.
MS EASTMAN: Do you remember how long you worked ---
MS DARLING: A year.
MS EASTMAN: And after the year at the hairdressers she let you go?
MS DARLING: Yes, she let me go.
MS EASTMAN: How did you feel about being let go from that job?
MS DARLING: I was pretty upset that I thought something good might come out of it, hopefully, and I just thought okay, let's trying something new, and that's how I got, into the restaurant, I worked at that, which was really good, I worked there for a year.
MS EASTMAN: What did you do at the restaurants?
MS DARLING: Cleaning and that, but I was capable of doing more.
MS EASTMAN: How did you feel about being capable of doing more but not being asked to do more?
MS DARLING: I think they didn't understand. I think they assumed I couldn't do that and so they put me on the floor. I thought, no, I will get my Certificate in Barista and making the teas and coffees and getting that so I could do that, that was what I wanted to do. But they wouldn't let me because they didn't give me a chance.
MS EASTMAN: That lasted a year?
MS DARLING: Yes.
MS EASTMAN: And then you worked in a cafe. You did make coffees in that job, didn't you?
MS DARLING: I was an all rounder. I did most things like work in the kids play area and work in the restaurant but mostly doing that.
MS EASTMAN: Was this the job that on your first day that was okay, but then after that ---
MS DARLING: Yes.
MS EASTMAN: --- the boss was not great?
MS DARLING: Yes.
MS EASTMAN: What happened?
MS DARLING: Yes, they just started being really rude because I couldn't measure properly like the vinegar, and I just said to them, "Look, I can't do the measurements", and they said "It can't be that bloody hard", and I just thought, "Well, for me it is" because my measuring skills and the number wasn't good and I told the big person I said, "Look, I feel like I'm not getting appreciated by this", and they were just like, "Well, I can't do anything about it". "Okay, but I'm coming to you to help me to what to do next". You know.
MS EASTMAN: Did anyone help you to work out what to do next?
MS DARLING: No.
MS EASTMAN: And you decided to quit that job after a few weeks?
MS DARLING: No, they let me go after that.
MS EASTMAN: That one?
MS DARLING: Yes.
MS EASTMAN: And you've had a DES provider who has helped you find some jobs from time to time.
MS DARLING: Yes.
MS EASTMAN: And some jobs you've said no to because they wanted you to work for a very small hourly rate, is that right?
MS DARLING: Yes.
MS EASTMAN: So another job you got was working in a restaurant and a hotel?
MS DARLING: Yes.
MS EASTMAN: And that was one you got yourself, you did your own application?
MS DARLING: Yes.
MS EASTMAN: And you had to go to an interview?
MS DARLING: Yes.
MS EASTMAN: And you got the job?
MS DARLING: Yes.
MS EASTMAN: How was it doing the interview? Did you like the interview?
MS DARLING: The interview was pretty good. They all chatted and said, "What do you want in this job?" I said, "I'm interested in learning new skills, what I can do" and they were, "All right, that's interesting, we'll give you the job" and then I started working there. After that, after a few weeks they didn't really give me a chance to do most things, so they just expect me to run around like crazy, and I didn't like that. I wanted to do one thing at a time so I could go over that, but they wouldn't. They were just, like, "No, you doing all rounder. That's what we're doing. That's final."
MS EASTMAN: And was this the job where some of the people working there were a little bit rude to you?
MS DARLING: Yes.
MS EASTMAN: And how did that make you feel?
MS DARLING: It didn't make me feel nice. I would rather somebody treat me respectfully and be, like, "Hopefully you can do this or we can get you more help". So, yes.
MS EASTMAN: When you were doing that job, if someone was being rude to you, did anyone help you sort out those problems or help you talk to the person?
MS DARLING: No, I told my adviser I am having difficults, and they said that "Well, you got the job and you got to do it yourself, it is your responsibility". And I said, "Yes, I understand that, but we are not having agreement with each other". So even the adviser didn't help me out. I just thought I would rather just do it myself, and just told them "You guys are not treating me respectfully and I just feel like you are not including me in things".
MS EASTMAN: So you left that job after about 6 months?
MS DARLING: Yes.
MS EASTMAN: So the next job was working in a retail shop. You got that job yourself?
MS DARLING: Yes.
MS EASTMAN: You went into the shop and what did you say, "Have you got any jobs?"
MS DARLING: I said "Is there a job and anything available?" The guy said there was something available and I said, "That's great, I'm willing to work hard". He asked if I can start straight away. All right then. I was really excited. I really liked that job, because I was stacking shelves, tidying up, doing another skill that we can all do. But in general I thought that would be a good job for me until I got bullied by that person, and she was quite horrible on the second day, she was like "What are you doing here? I don't expect you to be here". I was like "Your boss gave me the job". And she was like "I'm giving him a call". I'm just like "Okay, then, you can call him" and she made it very difficult and embarrassing too.
MS EASTMAN: She called you names, didn't she?
MS DARLING: Yes.
MS EASTMAN: And that made you feel really ---
MS DARLING: Yes, like one time I was stacking another shelf and she was talking about me to another person behind my back, and I could hear the whole conversation pretty much, but I did nothing. I kept my head high and thought, "Wow, you must be really low to do that", you know.
MS EASTMAN: So, yeah, you are stuck at this job for 6 months and then that shop closed ---
MS DARLING: Yes.
MS EASTMAN: and you lost your job again.
MS DARLING: Yes.
MS EASTMAN: So you've done lots of different jobs.
MS DARLING: Yes, I have!
MS EASTMAN: In terms of when you have had the jobs, what has worked for you in getting the job and keeping you in a job?
MS DARLING: Now this job I have has been really good. It's been achieving goals I want to reach. I've always wanted to be a speaker. I've done that. I've always wanted to help people with disability achieve their goals and I've done that. Just doing something new and to learn skills, that's what I want.
MS EASTMAN: So you worked for CID for 2 years?
MS DARLING: Yes.
MS EASTMAN: And some of the projects that you've done ---
MS DARLING: ‘Mainstream and Me’, ‘More than Just A Job’, and we're doing ‘More than Just A Job’ again because we got some funding. Yes, it's been really good.
MS EASTMAN: And you helped people during COVID 19?
MS DARLING: Yes.
MS EASTMAN: What did you do around COVID 19 to help people understand a little bit more about COVID 19?
MS DARLING: Well, we did the health website and we did like the photo shoot,
"This will happen if you don't take care of yourself". We did some over talking, we did a lot of voice recording. There's videos if you guys want to see it.
We are just talking about being safe, being aware, making sure people with intellectual disability or in general any disability, just to be aware that "You guys, to be safe" and even when we were trying to say to their support people too about making sure you all guys know too because they might have support workers come in and they might not know, okay, this is what we do, so we made a plan.
MS EASTMAN: To help everybody have a better understanding.
MS DARLING: Yes.
MS EASTMAN: The last thing I'm going to ask you about is you've made some recommendations in your statement?
MS DARLING: Yes.
MS EASTMAN: If you turn to the last page and the second last page, it has a heading "Recommendations", number 36.
MS DARLING: Yes, 36.
MS EASTMAN: You don't have to read out the recommendations. I know that you have the recommendations in your head. So the final thing I want to ask you today is can you tell us what are your recommendations that you think will help other people with disability have the opportunity to have a job?
MS DARLING: I think is to give them a chance, give them a go. Don't treat us like we can't do anything when we can. We'll give it more 100 per cent. And I feel like we're all the same, pretty much. We might be a bit slower, but we are all pretty much all the same. Yes, give us a go.
MS EASTMAN: What about employers, what could they do?
MS DARLING: We could teach them about some training, so we can train them, like on the job with someone with a disability or any disability, we could have one day of training, all right, this day is going to be training and this is how we are going to treat this person with a disability to be included, and make sure that they are going to feel like they are wanted in the workplace.
MS EASTMAN: What about Easy Read policies?
MS DARLING: Yeah, Easy Read documents, flyers, all word of mouth like Facebook, Instagram, all of that, we could definitely do that.
MS EASTMAN: Is it important that employers ask people with disability what they
need and what they want?
MS DARLING: Yes, I think it is always better to ask someone than not, because they might have a difficult day and be like, "Oh, I don't know what to do", "Well, here is what we are going to do. At 10 o'clock we will do this, at 11 o'clock I am going to teach you more about this, how we are going to do that, and see how you feel?" And they will be, "All right, cool", you know.
MS EASTMAN: Ms Darling, thank you so much for coming and sharing all of the different jobs and your experience of work with the Royal Commission. We're very pleased to have you and thank you for being our final witness.
MS DARLING: Thank you so much again.
MS EASTMAN: Some of the Commissioners might have some questions for you. I will just check with them before you finish.
CHAIR: Yes, I will first ask Commissioner Galbally who is in Melbourne and on the screen.
QUESTIONS BY THE COMMISSIONERS
COMMISSIONER GALBALLY: Hello. Thank you very much for your evidence. I just noted through your statement that you stuck up for yourself about getting paid a proper wage and you refused to work in an ADE because it was $2.50 an hour.
MS DARLING: Yes.
COMMISSIONER GALBALLY: Can you tell us a little bit more about that?
MS DARLING: They wanted me to work in a shelter home and I thought no, "I'm more capable with more skills than that", but that job employment agency wanted me to do that because they couldn't find a normal job for me so they just thought sticking me in a group home, shelter home where they thought $2.50 or $3 an hour is enough, and I thought "Well, that's not good enough, I need more". I basically can do more than that. I basically have an intellectual disability but I'm not function --- I can function well enough to do that, you know? And they thought, "No, you can't, you know", because of that, you know. And I just thought, "Well, that is completely wrong".
COMMISSIONER GALBALLY: Thank you.
CHAIR: I will ask Commissioner Atkinson now.
COMMISSIONER ATKINSON: Thank you, I have no further questions. Thank
CHAIR: Thank you. And I will ask Commissioner Ryan.
COMMISSIONER RYAN: Ella, there is one question I wanted to ask you: in your recommendation you said that Disability Employment Services should use Easy Read or pictures. Have you dealt with a Disability Employment Service that hasn't ---
MS DARLING: Not yet, but we're wanting to do that. We want to go to the employers or DES or anyone who wants to do the Easy Read so we can do it for them, you know. So that's what we want to do.
COMMISSIONER RYAN: What I was trying to understand is if you engaged with Disability Employment Services who have not used Easy Read documentations, would that be right?
MS DARLING: Yes.
COMMISSIONER RYAN: Thank you for telling us that. Thank you.
CHAIR: Thank you very much for coming to our Sydney hearing room to give evidence today. We very much appreciate it. Thank you for your statement. As Ms Eastman said, thank you for taking us through your very interesting employment history and we wish you every success in your current role
MS DARLING: Thank you very much.
CHAIR: --- which you obviously enjoy enormously. All the best for that.
MS DARLING: Thank you.
THE WITNESS WITHDREW
MS EASTMAN: Commissioners, that concludes the evidence. I think, chair, you want to make some closing remarks and there are some directions but we might adjourn for lunch and return to close the hearing.
CHAIR: It might be convenient if we could come back at 2.35 Sydney time and 1.35 Brisbane time. Thank you.
ADJOURNED [1.44 PM]
RESUMED [2.35 PM]
CHAIR: Yes, Ms Eastman.
CLOSING REMARKS BY MS EASTMAN
MS EASTMAN: Thank you, Commissioners. As I mentioned before lunch, we concluded the evidence for this Public hearing with the evidence from Ms Darling. Can I say something just by way of closing remarks before, Chair, you give some closing remarks and some directions.
As I said in the Counsel Assisting opening remarks on Monday, the focus of this hearing this week has very deliberately been directed to the experiences of people with disability. We have heard from people living with disability about their experiences in finding, maintaining, progressing and leaving jobs in the open labour market. In this hearing we did not hear from employers, employer/employee representative bodies or governments.
However, our focus cannot and will not be one sided. And further, as I said in my opening remarks, simply identifying a list of systemic barriers is not enough. The Royal Commission will have to address how the barriers can be addressed and eliminated. This hearing, therefore, has been the first part of our examination into the barriers to open employment for people with disability.
In the second part of our examination of this issue, we will turn our attention specifically to the measures and actions of employers, unions, service providers, representative bodies and governments in addressing the systemic barriers to eliminate violence, abuse, neglect and exploitation of people in employment.
In that respect we will explore the systems, laws, policies, programs and processes relevant to the pathways and barriers to open employment for people with disability. This will necessarily involve a closer examination of the regulation of both private and public sector employers together with governments and the institutions responsible for the regulation of employment and the labour market.
We intend, at a future time, to hear from governments, employers, service providers and others. In preparation for that further hearing, we will be seeking directions today to set aside a date for oral submissions early next year to consider the proposed scope for the Royal Commission's further inquiry into the themes and issues identified in Public hearing 9. Any recommendations that the Commissioners may make in relation to barriers to employment for people with disability will be based on both this hearing and future hearings and will take those areas together with respect to any proposed recommendations that we make to the Commissioners. Thank you, Chair.
CHAIR: Thank you, Ms Eastman.
I would like to make some brief closing remarks. First and most importantly, I would like to express the deep appreciation of the Commissioners to the witnesses with disability who have shared their experiences with us so frankly and openly this week. It is not easy to give evidence at a public hearing about the formidable and sometimes insurmountable challenges that people with disability face when they seek to participate to the fullest possible extent in the labour force. We are most grateful to each of the witnesses who have given evidence this week.
As we were reminded earlier in the week, Article 27 of the Convention on the Rights of Persons with Disabilities obliges States Parties to:
.... recognise the right of persons with disability to work on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in the labour market and [a] work environment that is open, inclusive and accessible to persons with disabilities.
We heard today from Dr Ben Gauntlett, the Disability Discrimination Commissioner of the Human Rights Commission, on the importance of Article 27 and other provisions of the Convention in establishing in international law the right of people with disability to participate in the labour force.
If there is one thing that emerges clearly from the evidence of the witnesses with disability from whom we have heard this week, it is the extremely strong, even passionate desire, to obtain work and to flourish in their employment. It is hardly surprising that the witnesses emphasise the personal fulfilment to be gained from paid employment and the desire to make more substantial contributions to the Australian economy and society. This is, after all, what everyone expects in this country.
As we heard, some people with disability have overcome all obstacles in their path and, with extraordinary commitment and determination, have achieved their aspirations. Others have shown the same commitment and determination, but through no fault of their own have been unable to breach the barriers that society has placed in their path. Yet they have kept trying, often with a limitless support of their devoted and indefatigable parents.
Others have succeeded in entering the labour market, but have been prevented from realising their full potential by those same barriers.
Virtually all of the witnesses with disability recounted prejudicial attitudes they have
experienced when seeking employment or in the workplace. They spoke of the low expectations so often held by employers of people with disability and the reluctance of employers to offer employment, allocate suitable responsibilities or provide fair opportunities for advancement commensurate with the person's skills and experience.
Dr Gauntlett today explained very clearly that it is not simply a matter of looking at what happens in a workplace but it is also necessary to consider the many forms of disadvantage that affect employment opportunities for people with disability. He specifically identified the lack of accessible accommodation close to places of employment and accessible modes of transport suitable for people with disability to travel to their place of employment.
The evidence that we've heard of individual experiences of discrimination and what perhaps can be described as institutional neglect and thoughtlessness on part of employers is just one part of the overall picture.
Another part is the operation of the labour market as a whole.
We learnt from Professors Buchanan and Smith Merry yesterday that the pool of unemployed and under employed people in Australia is very much greater than figures might suggest. Similarly, it appears that the pool of unemployed and under employed people with disability is less than official data records.
There is an analogy to be drawn here. Over the last 4 or 5 decades, the composition of the Australian labour force has changed dramatically and markedly. The proportion of women in the workforce or actively seeking employment has increased very substantially. This has been to the great benefit of the Australian economy, Australian society and, of course, women themselves --- and before I am assailed by my colleagues in Brisbane and Melbourne, I recognise that there is a way to go before full gender equality is achieved; nonetheless I hope I am forgiven for saying we have made considerable progress.
The experiences during the COVID 19 pandemic are likely to bring about long term changes in work practices and perhaps in the structure of the Australian economy. The economic recovery will no doubt be strengthened by the expected arrival of an effective vaccine next year, but it still may be a protracted process. The adjustments that are likely to occur, such as greater opportunities to work remotely, and to take advantage of flexible work arrangements, might well provide an opening for seeking to achieve another major change in the composition of the Australian labour force. This could be the occasion for a concerted national effort --- or, I suppose as Professor Buchanan would prefer, an effort based on co operative federalism --- to harness an under utilised national asset. That asset consists of people with disability who wish to work, but who are prevented from doing so by the barriers that are placed in their path.
If this can be done, the benefits to the Australian economy, Australian society and people with disability are likely to be very considerable, indeed.
As Ms Eastman has explained, we shall not be making findings or recommendations in any report based exclusively on the evidence of this hearing. We know that there are many complex and difficult issues that require further examination. As we heard today, we will need to look at whether changes are required to the Disability Discrimination Act or other Commonwealth legislation, and whether there is a need to move away from a complaints based system as the mechanism for enforcing the right to work insofar as it is encompassed in anti discrimination law. Professor McCallum, who has been present, I am glad to say, at this hearing since last Tuesday, is conducting an important research project addressing that very question, and others that bear on how the rights of people with disability can be more effectively enforced.
We've heard evidence of the complexity of the interlocking systems of income, maintenance and employment supports for people with disability and the great difficulty people with disability have in navigating those systems. We need to consider whether changes are needed to simplify the systems and to produce better outcomes for people with disability. We've heard about programs that encourage employers to engage people with disability and support them during their employment. We have heard a variety of suggestions for encouraging employers to understand better how to adapt their recruitment, training and workplace practices to provide people with disability with greater opportunities to participate in the workforce.
As representatives of Get Skilled Access today told us, we need employers also to understand the benefits to them of employing and supporting people with disability. Dr Gauntlett pointed out that we have to allay the misconceptions about employing people with disability, and take measures that build up trust between employers and people with disability. There is certainly no shortage of reform proposals available for consideration. We were taken to the Willing to Work Report which contains many, and many of which are not yet implemented.
The statements that were admitted into evidence during the course of this week also contain numerous suggestions worthy of consideration by the Commission in its future work.
As with other areas that the Royal Commission is required to investigate, improving the participation rates of people with disability in the labour market and removing discrimination could justify a separate Royal Commission. We, however, will do our best to develop proposals that will lower and perhaps in due course even eliminate the barriers that for so long have adversely affected the life prospects of people with disability.
Can I conclude, please, by thanking very sincerely the Counsel Assisting the commission who have conducted this hearing, Ms Eastman, Ms Zerner and Ms Fraser, the support also that they have received from the Office of Solicitor Assisting, the interpreters who face an extraordinarily difficult task every time we have a hearing, there does seem to be a race among witnesses to see who can speak
the fastest, they do a heroic job in coping and we are grateful to them. We are grateful to all the members of the Royal Commission staff that have handled the complex arrangements for organising this hearing, making the arrangements to allow it to take place remotely insofar as necessary, and generally to ensure that the whole process works very smoothly.
People outside the Commission, I don't think, fully realise just how much work, skill and effort goes into preparing and conducting a hearing such as this, and the Commissioners are very grateful to everybody who has contributed.
I wish then to thank everybody who has been involved. This concludes this particular hearing, and for some of us we shall have a whole one day before the next hearing starts on Tuesday of next week. Ms Eastman will tell us the precise title of that hearing.
MS EASTMAN: First of all, I'm hoping that you are going to give me and Ms Zerner and Ms Fraser some directions about what will happen next week.
CHAIR: Oh, yes, I am! I forgot. Right. What would I do without people to remind me what I have to do!
The directions that are to be made are as follows:
1. Questions on notice.
By Friday, 15 January 2021, any witnesses who took questions on notice during this hearing should provide their answers in writing to the Office of the Solicitor Assisting the Royal Commission. These answers should be targeted and concise.
Secondly, submissions from parties in receipt of Evidence Notification Letters, by Friday 15 January 2021 those parties who have been notified by letter of any evidence specific to their interests should provide concise submissions in response, along with any additional material that is directly relevant to the evidence for the Commissioners' consideration to the Office of the Solicitor Assisting the Royal Commission.
Thirdly, Counsel Assisting the Royal Commission will consider any additional material produced and determine if additional steps need to be taken. By Monday 29 January 2021, Counsel Assisting will tender into evidence whatever additional material is considered appropriate.
Fourthly, Counsel Assisting will then prepare an outline of submissions to the Royal Commission setting out what Counsel Assisting proposes to deal with in oral
(a) key themes emerging from and any findings available on the evidence led during the hearing, including any additional material tendered on or before 29 January 2021; and
(b) a proposed scope for the Royal Commission's further inquiry into the themes and issues identified in this hearing.
Counsel Assisting's outline of submissions will be made available on a confidential basis to those parties with leave to appear at the hearing by Friday, 5 March 2021.
Fifthly, parties with leave to appear who may wish to make an outline of submissions in response should do so by Friday, 19 March 2021.
Finally, the Royal Commission will then schedule a 1 day hearing on Wednesday 24 March 2021 for the presentation of Counsel Assisting's oral submissions, and any oral submissions in response from the parties with leave to appear.
Those directions can then be taken as having been made.
Ms Eastman, perhaps you can remind us of what the hearing will be dealing with on Tuesday next week.
MS EASTMAN: Chair, that concludes Public Hearing 9. The Commission will resume next Tuesday in Sydney for Public Hearing 10.
The focus of Public hearing 10 is on the training of health professionals, and this is a public hearing that picks up the work that the Royal Commission undertook for Public hearing 4, looking at health issues for people with cognitive disability at the Homebush hearing earlier this year, and also some of the work that the Commissioners did more recently on Public hearing 6 in relation to psychotropic medication.
It will be a 2 day hearing, and it will be a hearing that will be slightly different to the hearings that the Commission has conducted to date, because the witnesses will all be appearing by the audiovisual links and that there will be a series of panels.
Ms Wright is appearing as Junior Counsel with me in that hearing, and we will outline on Tuesday morning the precise mechanics and the way in which the hearing will be presented.
CHAIR: Thank you very much and thank you again to everybody who has contributed to this hearing. The proceedings are now adjourned.
ADJOURNED AT 2.54 PM (ADST) UNTIL TUESDAY, 15 DECEMBER 2020