Where are we with the other Royal Commission – the one on the detention of children in the Northern Territory? … Murdoch hacks furiously critical of the commission – so it must be on the right track … Reporting on crocodiles a top priority … Has the legal profession been too comfortable about youth injustice in the NT? … Daniel Ahern reports
WHEN announcing the Royal Commission into the Protection and Detention of Children in the Northern Territory in July last year Prime Minister Turnbull declared that there is a systemic problem in the NT justice system.
That state of affairs had been known for years to people in the territory, but it took the 4 Corners program “Australia’s Shame” to let the rest of the nation know what was going on, specifically at the Don Dale Youth Detention Centre.
The royal commission has been in operation for eight months and proceedings have resumed in Alice Springs and move on to Darwin from March 20. An interim report is due by the end of this month with the final report due on August 1.
Up to Tuesday (March 14), the commission had held 12 days of public hearings, with evidence from 24 witnesses, including experts in youth detention and child protection, former and current detainees, youth justice people and managers.
The commissioners have visited New Zealand and most Australian states and have held a forum on alternative approaches to detention.
Darwin barrister John Lawrence SC appeared in December for an Aboriginal youth, now aged 17, identified as AD. He was detained at Don Dale for weeks at a time in a small cell for 23.5 hours a day, with no fan, no air conditioning and little light.
He had been sprayed with tear gas at the detention centre after running riot because of intense frustration and being unable to see one of the support staff.
AD’s redacted statement is here.
Lawrence sought to establish the extent of the institutionalised conditions that saw youngsters routinely locked up in barbaric conditions, where spit hoods, restraint chairs, handcuffs and tear gas were applied. He told the commission that lawyers and the judiciary were part of an Indigenous incarceration “sausage factory”, where the legal profession had become the “lubricants”?
He cross-examined Russell Goldflam, an experienced criminal defence lawyer who is head of the Alice Springs branch of Northern Territory Legal Aid Commission and president of the Criminal Lawyers Association of the NT (CLANT).
Here’s Goldflam’s statement to the commission and here’s the transcript of evidence on December 13 and December 14.
CLANT had agreed to amendments of the Youth Justice Act that allowed restraint chairs to be used on children. Goldflam described the decision as a “difficult balancing act,” made in the context of the territory government being “pretty intent on amending the Youth Justice Act” and already having introduced a Bill to parliament.
Goldflam had submitted to working group supposedly advising the government that the Bill should provide for restraints only when “reasonably necessary for a lawful purpose”.
The Bill was introduced without consultation with the working group and without the recommended safeguard.
CLANT was satisfied with an amendment, “that restraints could only be used in the least restrictive or invasive way reasonably in the circumstances for the minimum amount of time reasonable in the circumstances”.
Goldflam said:
“We were faced with the dilemma of, ‘Well, what’s the best response to this?’ Do we just come out and say, ‘It’s a terrible thing, don’t do it,’ knowing that nobody would take any notice of that?”
In relation to the amendments he added:
“There were some parts of it which I thought were an improvement, other parts which I thought could have been improved … and I’m still not sure to this day whether they were an improvement or a retrograde step.”
In his written submission Goldflam was critical of the child detention system in the territory:
“[It] has operated in a state of crisis since at least 2014. There were 12 documented, serious incidents including escapes, security breaches, disturbances, property damage and assaults on detention centre staff in the first nine months of that year.
Over the previous four years, there had been between four to six such incidents in each calendar year.”
He also put forward a series of measure that the government ought to adopt, including desisting from the demonisation of “bad youth” and allowing customary law or cultural practice to be considered in assessing objective seriousness.
Lawrence wanted to explore the extent of the relationship between legal aid and the correctional services people and the dependence of the legal aid commission on NT government fundings.
There were frequent objections to this line of questioning both from Commissioner Margaret White and lawyers for the NT government.
Goldflam said he was aware of many of the conditions in youth detention for years before they were aired on 4 Corners:
“I knew that handcuffs were used, because I had seen children being shunted around the court in handcuffs for ages, for years … I can’t remember when I first became aware of spit hoods and restraint chairs. I had never heard of tear gas being used until there were [media] reports it had just been used in August 2014.”
Criminal lawyers in the territory were well aware of these conditions long before they were exposed to the community by the ABC.
The previous attorney general John Elferink commented about young detainees in an interview with the ABC in September 2014:
“These are strapping young lads but, my goodness gracious me, we will crack-down on them and we will control them.”
He also borrowed a phrase of George W. Bush and referred to offenders who had been involved in serious incidents as the “worst of the worst”.
Lawrence asked Goldflam whether Elferink’s comments had encouraged the gassing of children at Don Dale. He replied:
“I think that the point you are making is a fair one, that his statements did create a political space which made it more likely that children could be assaulted in detention.”
And what about Ken Middlebrook, the previous corrections commissioner, “did he encourage the gassing … of children?”
“Yes.”
Patricia Anderson, chair of the Lowitja Institute and co-author of the Little Children are Sacred report, highlighted a deterioration in the youth justice system.
In the October hearings of the Royal Commission, she said:
“One of the themes I think of the last 10 years has been … the disempowerment and powerlessness of Aboriginal people and the breakdown of cultural authority in communities and families … There’s some kind of moral decline here … things are pretty bad. Even worse than they were 10 years ago.”
Anderson was surprised by the amount of time her cross-examination focussed on the Little Children are Sacred report, compared to her view that the NT government had largely ignored that report when it came out.
She harbours similar fears for the recommendations of the Royal Commission into the Protection and Detention of Children in the Northern Territory:
“We spend a lot of time talking about Aboriginal issues and the problems and everything, but very little has been done … our hope is, commissioners, that this isn’t the fate also of this inquiry.”
Anderson placed some blame on the only local Murdoch paper, the NT News, for not pointing out this decline:
“I don’t think even today there are many Aboriginal people who have responsible positions in the child protection system … It’s like we are shuffling – like zombies shuffling around the side here in terms of the visibility in [Alice Springs].
What’s in the NT News in the morning, a bloody big crocodile. I mean, really, I thought to myself – I saw it when I got my coffee, and I thought, you know, some things just don’t change.”
His concern is that criticism of the commission by the media will condition the government to do nothing once the report and recommendations are made. Maybe that’s the aim of the exercise.
Amos Aikman, the NT reporter for The Australian, had a story on December 14 contrasting Dylan Voller’s social media posts with his respectable appearance before the commission. Voller was the young man seen hooded and restrained in a chair on the 4 Corners’ program about detention at Don Dale.
On February 27, 2017, Aikman reported an interview with Terry Mills, a former NY chief minister. Under the headline “Youth justice inquiry ‘offensive’,” Mills warned of simmering anger over the “hero status” afforded to offenders such as Dylan Voller.
Amos describes himself as “a reader, a thinker and … not a bad cook”.
Lawrence also pointed to regular stories and opinion pieces by Matt Cunningham in the NT News and other publications. Cunningham is the Sky News bureau chief and is a leading member of the Murdoch media’s chorus of complaint about the royal commission.
On December 11 Cunningham published a piece headlined “NT Royal Commission ‘officially a farce’,” saying it was conducting a “dysfunctional inquiry”.
On February 4, 2017, Ben Smee of the NT News labeled the Royal Commission “a disaster … just about the most outrageous waste of public money in Territory history”.
The ever-reliable Andrew Bolt also weighed-in with a predictable piece unsympathetic to Voller and critical of the commission for giving him a platform.
In a statement to Justinian, The Australian said:
“The Australian’s sole agenda is to provide the best and most comprehensive coverage to our readers. While we wish Dylan Voller every success in his attempts to turn over a new leaf, no one should forget that his past behaviour was very different.
Indeed, it would be a mistake to do so because if you do not understand the challenges authorities faced when dealing with Dylan then you do not understand the challenges they face with other children now nor those they will face tomorrow.
No public inquiry is above public scrutiny, albeit sometimes uncomfortable. Everyone wants this inquiry to achieve the best outcomes for the Northern Territory’s juvenile justice system.”
Prior to the royal commission being called, NT ministers and even the former chief minister Adam Giles had gained political capital by disparaging Indigenous Australian children incarcerated at Don Dale.
— Adam Giles (@adamgiles) May 17, 2016
The tough on crime approach saw children at Don Dale in solitary confinement was for up to 72 hours at a time with no access to running water. They were assaulted, stripped naked and tear-gassed.
Eighty-five percent of NT prisoners are Indigenous Australians, up from 69 percent at the time of the Royal Commission into Deaths in Custody.
As Patricia Anderson said at the October hearings:
“The very survival of Aboriginal people in the Northern Territory depends on this commission making a real impact … we all feel good about talking about it, and we go away feeling all warm and fuzzy, and it’s dropped into a filing cabinet somewhere.”