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Legal and Constitutional Affairs Legislation Committee
22/10/2020
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability

[21:01]

CHAIR: I now welcome officers from the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. Thank you very much for being here late into the evening.

Senator STEELE-JOHN: I want to start my line of questioning by tabling the documents that I have circulated, Chair, if that's okay?

CHAIR: How long are you expecting to need, Senator Steele-John?

Senator STEELE-JOHN: I would say at least 25 minutes.

CHAIR: Twenty-five minutes isn't an option. It's almost the entirety of the time allocated for this group of witnesses. It leaves no time for anybody else.

Senator STEELE-JOHN: Yes. We're probably going to have to run over a bit, then, Chair, I'm sorry. I've got quite an extensive and very time-critical line of questioning.

CHAIR: Well, be as economical as you possibly can, please.

Senator STEELE-JOHN: Thank you. Have those documents been circulated?

CHAIR: Yes.

Senator STEELE-JOHN: Those people that are attending remotely, do they also have copies in front of them?

CHAIR: I'm seeing shaking heads. That suggests they do not.

Senator STEELE-JOHN: Do we have the capacity to get the documents to them? I sent them a couple of hours back.

CHAIR: They have been emailed to those at the royal commission end, I'm told. When did that happen, Madam Secretary? Only about two or three minutes ago.

Senator STEELE-JOHN: I will begin a different set of questioning and then I will return to the lines of questioning that are relevant to the information that's been circulated then. I will just take you first to the royal commission regulations, which apply to all royal commissions and set out the terms upon which witnesses appearing are compensated for their time. It talks about professional, scientific or other specialist or skilled knowledges being paid at a level or fee of $1,174 per day, while other witnesses receive only $123. I'm wondering, first of all, why there exists a two-tiered structure in this way? Who can answer that for me?

Mr Cronan : The short answer is the commission doesn't have responsibility for the actual regulations or the content. The Attorney-General's Department has administrative responsibility for the regulations, so that question would be better directed to them.

Senator STEELE-JOHN: Does AGD also have carriage for the particular amounts, the differentials in payment amount between expert and non-expert?

Mr Cronan : That's my understanding.

Senator STEELE-JOHN: I will shoot those questions over to them, then. Could I take you to the question of private sessions. How many requests for private sessions have there been to this date to the DRC?

Mr Cronan : I might ask Jo Carey, our engagements assistant secretary in Brisbane, to answer that question.

Ms Carey : To date we have had 654 requests for private sessions. Of those requests, 40 people have since withdrawn their request, which leaves us with 614 requests.

Senator STEELE-JOHN: How many sessions have been undertaken to this point?

Ms Carey : As of 16 October, we have held 74 private sessions.

Senator STEELE-JOHN: So 74 out of the 614 that have been requested so far?

Ms Carey : Correct.

Senator STEELE-JOHN: How long do you estimate it will take you to clear that backlog? What's the wait time now, given there is such a differential? If I applied for a private session now, what's the time frame for me to actually get through the door?

Ms Carey : At the moment we are conducting approximately 16 private sessions per week. We're running them continually up until mid-December in every week. We estimate that we would have conducted around 136 private sessions by the end of this year. All of those private sessions that we are conducting at the moment have been conducted virtually, so either through telephone or video. In terms of the wait time, it's not possible to give you an average wait time because there are a number of variables that come into play when we are working through scheduling. For example, someone's preference at the moment about whether they're willing to have a telephone or video conference might mean that they will get seen quicker than somebody who wishes to wait until they are able to have a face-to-face private session.

Senator STEELE-JOHN: I'm just trying to do the division while you were giving me that. At the rate of 16 a week that you're currently getting through, it's going to take you a very long time to clear even the amount that you've currently got, let alone—

Ms Carey : We're hoping ramp up further next year.

Senator STEELE-JOHN: What level per week are you hoping to achieve next year?

Ms Carey : We haven't set our forward scheduling in concrete yet, so I wouldn't be able to give you that assessment at this stage. I'm happy to take it on notice.

Senator STEELE-JOHN: Is there a maximum number of requests for private sessions that you will take before you might pause that to clear that backlog?

Ms Carey : No, not at that stage.

Senator STEELE-JOHN: Thank you. Chair, have those documents reached the good people at the commission?

CHAIR: Perhaps you should ask them. Do you have the documents?

Mr Cronan : I understand they have just been delivered and they are being printed at the moment. We don't have them in front of us yet, but we should have them shortly.

Senator STEELE-JOHN: I will continue with the line of questioning then. Could you clarify something for me? Here in my office, and there have been other examples throughout the sector, we've been hearing members of the community quite distressed, for understandable reasons, at being told to they will only have one hour allocated to them for the duration of a private session. Can you give me any clarity as to whether there is a set period per private session?

Ms Carey : At the moment the guidance we give to people is that private sessions will last approximately an hour. In practise I understand that most of them go a bit over an hour. The reason for the hour time limit is simply to maximise the opportunity for as many people as possible to have private sessions. So it is a bit of a balancing act for us in terms of maximising the opportunity for people to have any kind of private session with a commissioner versus the time taken. Obviously we do consider things on a case-by-case basis, particularly when there are particular accessibility requirements that might necessitate a longer time period.

Senator STEELE-JOHN: But what happens if somebody needs more than an hour?

Ms Carey : They talk to us about that and we work that through with them. Usually we have an indication of that before the session. The officers of the private sessions do very detailed intake processes with each person who has a private session with us. So we would normally have a sense before that.

Senator STEELE-JOHN: So if you use your hour, you get a sense, actually it goes longer than the hour, do you then go back to the back of the queue or do you reschedule? What's the process?

Ms Carey : I am not aware of anyone having their private session cut off in the middle of it.

Senator STEELE-JOHN: Would you be able to take that on notice and let us know if anyone actually has had a situation where their private session had to be cut off before they've concluded?

Ms Carey : I can take that on notice. I'm pretty confident the answer is no.

Senator STEELE-JOHN: I would really hope that the answer is no. Do you have it printed in front of you now?

Mr Cronan : Still waiting, Senator.

Senator STEELE-JOHN: Then I will take you to the question of the research program which is currently being run by the commission. Your website refers to the research agenda as A Flourishing Future: the Disability Royal Commission Research Agenda 2020-2022. It states that 'the research agenda will commission experts and academic researchers to build a deep knowledge base to support work across all parts of the royal commission.' Has the commission developed a framework for the research it conducts or commissions through the research agenda, and is there a plan to implement an inclusive human rights based methodology that is consistent with the terms of reference?

Mr Cronan : The research agenda has as its pillar our terms of reference. Essentially it has four main themes: the nature, extent and prevention of violence, abuse, neglect and exploitation; addressing, reporting, responding and investigating issues; creating an inclusive society; and context and history. There is a quite detailed framework that sits around our research agenda. All proposals for research have to meet six criteria that the commission stipulates. It is very much underpinned by the UN Convention on the Rights of Persons with Disabilities, and it has a human rights flavour that runs right through it.

Senator STEELE-JOHN: Thank you. I just want to follow that up though; I want to drill down slightly, if you wouldn't mind, on what you mean by a 'human rights flavour'.

Mr Cronan : When we're considering what is appropriate for our research program and our research agenda and what types of projects we're looking at, we're guided, ultimately, by the terms of reference. Our terms of reference direct us to look at our work through a human rights lens, and through the lens of the UN Convention on the Rights of Persons with Disabilities. So, when they're looking at developed projects, they clearly look at those issues with a human rights background to them.

Senator STEELE-JOHN: Right. That's not quite the same, though, as having what would be classically defined as a disability-inclusive human rights methodological framework. I'm just trying to ascertain whether the royal commission in fact has such a guiding document as part of its research agenda. They do exist, obviously, in the broader academic context, and they have various key elements like peer review by folks with lived experience et cetera. Do you have that as part of your research framework?

Mr Cronan : Yes, we do. Perhaps it might make life a bit easier—essentially, we're going to publish the framework that underpins our research in general on our website. We've been asked this question by a number of individuals, and I think it would be appropriate, from the public's perspective, and for those who are interested in working with the commission, to understand our research agenda in a bit more detail. We'll be publishing that on the website shortly.

Senator STEELE-JOHN: Excellent! What is the time frame for that?

Mr Cronan : I believe it's in a draft form at the moment, so I would hope sometime in the next few weeks. I haven't seen the draft yet, but it will be up shortly.

Senator STEELE-JOHN: And who has been involved in that? What kind of consultation did you undertake in the creation of the draft?

Mr Cronan : We have a research team of four or five staff, headed up by one of our senior research staff. They have developed that in consultation with not only their own team, we also have a senior researcher from the University of Adelaide who has a disability, and she was keenly involved in developing that process. We also have a number of staff with a disability on the research team who are involved in the development of that research agenda, and the structure that underpins it. We've also consulted with a range of academics and experts with disability who have commented on or provided input to that agenda as well.

Senator STEELE-JOHN: Okay, thank you. Now, I saw large-print documents being carried behind you, which I imagine heralds the arrival of the circulated documents. Is that right?

Mr Cronan : That is correct.

Senator STEELE-JOHN: Fantastic! For those of you following along at home, I will just put a content warning in front of this, before we get into it. We're about to get into the contents of a coronial inquest, and viewers may find it distressing. I certainly did. I would draw your attention to the colonial inquest undertaken by Peter White into death of Lena Divola, which concluded on 20 May 2011. Have you got that document in front of you, just to make sure we're on the same page?

Mr Cronan : Yes, we do.

Senator STEELE-JOHN: So the death in question, considered by the inquest, occurred on 31 December 2007. The individual in question was Lena Divola. At the time she was 59 years of age. As you will see, at point 1 on page 2, it says she suffered a dual intellectual disability and also 'a concurrent psychiatric condition of schizophrenia'. Can you see that at point 1 on page 2?

Mr Cronan : Yes, we can.

Senator STEELE-JOHN: Wonderful. You'll note also that it was noted by the coroner that this individual spent a significant period of their time in and out of psychiatric institutions, beginning in 1965 at the age of 17, and also—and I think this goes without saying but it's important to note in this particular context—was the much-loved sister of John Divola and was often supported by Mr Divola and his family, who went to great lengths to include her in the family on many occasions. She resided, for the five years leading up to her death, in the Department of Human Services owned Armadale House, run by the Australian Community Support Organisation. You can see that noted on dot point 4 of page 3. You will find then, on page 4, at note 9, that Armadale House at the time of her death was under the supervision, in the role of duty supervisor, of one Mr Simon Wardale. Can you see that noted at page 4, dot point 16, footnote 9?

Mr Cronan : I can.

Senator STEELE-JOHN: Fantastic. It's necessary, I think, to get to the crux of my question, to just walk you and the committee through the relevant aspects of this coronial inquiry. You'll note, of course, that on Christmas Eve of 2007 Ms Divola fell from a walker while being pushed along by a support worker who had never had proper training in using the piece of equipment. You'll see that noted at page 5, section 18. Can you see that?

Mr Cronan : Yes.

Senator STEELE-JOHN: You will then be able to see, on page 5, at section 22, that she was subsequently taken back to Armadale House and that this incident had been communicated to Mr Wardale, who arranged for her to be assessed by a Dr Langdon. You should be able to see that at page 5, section 22. Can you see that?

Mr Cronan : Yes, we can.

Senator STEELE-JOHN: Excellent. Mr Wardale did not seek to subsequently obtain the results of the assessment by Dr Langdon, which is detailed at page 6, section 29, and didn't make any further inquiries about Dr Langdon's advice. You will then see, if you move to page 7, section 34, that on Christmas morning Lena complained of feeling unwell and in pain caused by the fall, before heading to her brother John's house for Christmas, where she continued to complain of persistent headaches. You'll see that at page 7, section 34. You can see that?

Mr Cronan : Yes, we can.

Senator STEELE-JOHN: I take you then to 5.30 am on Boxing Day, the following day, when Lena is discovered lying on the floor, having vomited on the floor and on her nightdress. You can see that at page 7, section 34, also.

Mr Cronan : Yes.

Senator STEELE-JOHN: The person that discovered her in that situation subsequently contacted Mr Wardale, who advised not to help her get up. When Mr Simmonds, the person who discovered her there, spoke to Mr Wardale about calling an ambulance, he suggested against it. You will see that there on page 7, section 37. Are you following me so far?

Mr Cronan : Yes.

Senator STEELE-JOHN: Thank you. If you move now to page 8, section 39, you will see that concerned staff kept checking on her every 20 minutes throughout Boxing Day. During this period of time she kept asking for help. Further calls were made to Mr Wardale, where he continued to advise against intervention. You will see that there at section 39.

Mr Cronan : Yes.

Senator STEELE-JOHN: At section 40, you will see that this was described in his view as 'common behaviour for Lena'. Staff taking over on the night shift again found her in the same position, and the staff member who originally found her at the beginning of the day was informed that Mr Wardale had been kept informed throughout the day of the situation. You will see that at page 8, section 44. Moving to 9 pm in the evening, it was noted that Ms Divola was asleep. At 11.30 the lights were turned off and the door was shut. It is at this point that Mr White notes that it had been a full 18 hour period since Ms Divola had been found lying on the floor covered in vomit. The next morning, you will see at page 9, section 49, she was found to be twitching, and finally an ambulance was called taking her then to the Alfred hospital.

As you will note in the findings section of this coronial inquest, particularly if you look at page 16, section 14, Mr White clearly states that Mr Wardale should have taken more decisive action in relation to this issue, and goes on to make what I can only describe as very clear statements as to his consideration, his view of Mr Wardale's conduct. For instance, at page 17, section 19:

I can conceive of no circumstances in which such a consequence might have been acceptable.

At page 17, section 21:

I am satisfied, however, that in all of the circumstances Mr Wardale fell into error by failing to remain alert to the possibility of a serious head injury and more generally by failing to collect information about Dr Langdon's opinion, and to act decisively as the situation continued into the 26th.

Finally, at page 18, section 27:

I am however satisfied that, despite the genuine concern of Simon Wardale for Lena and her plight, the delay in response reduced her chances of receiving a timely and successful treatment.

Because, of course, Mr White finds conclusively that the head injury sustained in the accident was the factor which caused her death on 31 December.

Having taken you through all of that, I will move you to the second document I circulated, which is Mr Wardale's CV, provided to the royal commission—

CHAIR: Senator Steele-John, you've been going for 25 minutes. How much more time do you expect to need?

Senator STEELE-JOHN: I'm just about to get to the conclusion—the sad conclusion. I'll take you to the CV. You can see that before you, can't you?

Mr Cronan : Yes.

Senator STEELE-JOHN: You'll note that, currently, Mr Wardale is in the role of Chief Clinical and Practice Officer, Multicap.

Mr Cronan : Yes.

Senator STEELE-JOHN: And you'll note that, in that capacity, Mr Wardale gave evidence to the royal commission on 9 September relating to his expertise and experience in the area of understanding and interpreting so-called challenging behaviours?

Mr Cronan : Yes.

Senator STEELE-JOHN: This is the individual named in the coronial inquest to have been found to have played a central role in the death of Miss Divola, driven by a misinterpretation of her request for help as challenging behaviours, is it not?

Mr Cronan : Sorry, Senator, I wasn't fully sure whether it was a statement or a question. Can you repeat that, please?

Senator STEELE-JOHN: Yes, of course. The coronial inquest detailed a situation in which Mr Wardale's misinterpretation of Miss Divola's request for assistance as challenging behaviours was a factor in her death. She was asking for help and his advice was not to help her because, in his professional opinion, she was displaying a tendency of her challenging behaviours.

Mr Cronan : Senator, I obviously haven't read the whole coronial inquest, but the track that you have just taken us through would suggest that is correct.

Senator STEELE-JOHN: Thank you. I am not an investigative journalist. This information has not been provided to me by Four Corners level investigative techniques. This started by looking up the guy's LinkedIn. How does it happen that somebody involved in such an incident ends up on the stand of a royal commission into violence, abuse and neglect giving evidence and expertise as to how it may be understood or prevented?

Mr Cronan : I'm sure you'll appreciate that the question that you're asking goes to the substance of the royal commission's work. It is simply not appropriate for me to address issues to do with the substance of the commission's work.

Senator STEELE-JOHN: Don't you vet the people to make sure they have not in fact been involved in exactly these types of incidents? Surely you must have a vetting process.

Mr Cronan : Again, we're going to the substance of the work of the royal commission. With all due respect, I don't think that we can go there.

Senator STEELE-JOHN: Well, with all due respect, we're going to your processes, Secretary. What steps do you take to ensure that people involved in instances of violence, abuse and neglect are not called as experts in the prevention of those same activities to your royal commission?

Mr Cronan : Perhaps it might be easier if we take the question on notice and provide you with that answer on notice.

Senator STEELE-JOHN: Thank you.

CHAIR: Are there any other questions?

Senator KIM CARR: I would just indicate that I have a series of questions but, because they are quite detailed and the hour—we're way, way over time—I would ask the secretary if he could give me substantive answers to these questions.

Mr Cronan : Absolutely, Senator.

Senator KIM CARR: Thank you very much.

CHAIR: Thank you, Senator Carr. I appreciate that very much. Thank you witnesses. We appreciate your time and you are excused with our thanks. I now call officers from the office of the Commonwealth Director of Public Prosecutions to come to the virtual table.