transcript 11 october 2016 web viewat our directions hearing in september nigel brown, a larrakia...

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TRANSCRIPT OF PROCEEDINGSTRANSCRIPT IN CONFIDENCE

O/N H-717812

THE HONOURABLE M. WHITE AO, CommissionerMR M. GOODA, Commissioner

IN THE MATTER OF A ROYAL COMMISSION INTO THE CHILD PROTECTION AND YOUTH DETENTION SYSTEMS OF THE NORTHERN TERRITORY

DARWIN

10.02 AM, TUESDAY, 11 OCTOBER 2016

MR P.J. CALLAGHAN SC appears with MR T. McAVOY SC and MS V. BOSNJAK, MR B. DIGHTON, MR T. GOODWIN and MS S. McGEE as Counsel AssistingMS S. BROWNHILL SC appears for the Northern Territory of AustraliaMR A.R. HARRIS QC appears for John ElferinkMR P. O’BRIEN appears for [Redacted]MR J.B. LAWRENCE SC appears for [Redacted]MR M. GUMBLETON appears for [Redacted]MS F. GRAHAM appears for Central Australian Aboriginal Legal Aid ServiceMR P. BOULTEN SC appears for the North Australian Aboriginal Justice AgencyMR J. TIPPETT QC appears for Ken Middlebrook

.ROYAL COMMISSION 20161011 P-1©Commonwealth of Australia Transcript in Confidence

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COMMISSIONER GOODA: Today marks the recommencement of the Royal Commission’s formal public hearings in which witnesses will be examined. It is therefore appropriate that we therefore acknowledge the traditional owners of the land upon which we meet, the Larrakia people. I acknowledge their elders, who are here today, those who have passed and those who have yet to emerge.

At our directions hearing in September Nigel Brown, a Larrakia man, did the welcome to country. He mentioned the struggles the Larrakia people have endured from when Goyder sailed into the harbour in 1869 to Larrakia petition in 1972, the Kenbi land claim which was made in 1978 but finally settled in June this year.

He set the agenda for us, in some ways, with a challenge by saying, “Now another struggle begins, one that calls upon all the powers of inquiry of this Royal Commission to speak out and establish findings and recommendations based on incontrovertible facts that must go toward changing the way that we as a community and those who choose to represent us in Parliament treat all of our children, all of our children, when they come into contact with the criminal justice system.” A large part of the Commission’s work to date has involved visiting communities across the Northern Territory to discuss the Commission’s work, and listen to people about their issues and experiences with the youth detention and child protection systems in the Northern Territory.

It has also included speaking with a range of stakeholders, organisations, and others which have valuable contributions to make to this inquiry. These consultations have been extremely worthwhile in informing us, in an informal and relatively unstructured way, about people’s concerns and have assisted the Commission to plan its work and identify issues which are relevant to its terms of reference. Those consultations continue on Friday in Darwin when we will hold another community meeting and a youth forum.

COMMISSIONER WHITE: I have noted the attendance here of numbers of representatives of those who have been given leave to appear. I think there is no need for you to repeat your attendance here today before the Commission, but I acknowledge that you are all here and present. Thank you, Mr Callaghan.

MR CALLAGHAN: Commissioners, the fact that we are able to convene at all, just 70 days since the signing of the letters patent, has only been possible because of the intensity with which the Commission secretariat has worked to establish an office, recruit staff, almost all of whom have had to relocate from different parts of the country, and invoke procedures for managing the enormous amount of information that the Commission will be required to process. Such things cannot simply be conjured up. The exercise has been the equivalent of calling into existence a major legal practice that might, in other circumstances, have taken years to evolve.

We have also had to establish the methods by which these hearings will be conducted, and this is one of many, many tasks to which our instructors from the Australian Government Solicitor have been committed. For the benefit of the parties, the public, and the media, I can indicate that for the purposes of today and

.ROYAL COMMISSION 20161011 P-2 ©Commonwealth of Australia Transcript in Confidence

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subsequent hearings, when statements and exhibits are received during the evidence of a witness before this Commission a physical copy will typically be present in the courtroom but, for the most part however, documents will be tendered electronically and given exhibit numbers.

Then, at the end of each day, exhibits will be processed, coded, and uploaded on to the commission’s website.

Anyone, including the general public, can access them, subject to any confidentiality directions or the like. This process may take some time, but statements, exhibits and daily transcripts will be publicly available as soon as practicable following the end of each hearing day. With these systems now in place, we are in a position to commence receiving evidence.

The dominant purpose of the oral testimony to be adduced this week is to provide background and context. This will lay the foundation for later and more detailed inquiry. We do not propose, this week, for the evidence to descend into the detail of particular incidents, reports or established sources of controversy.

We do note, however, that there will be some evidence called this week from some witnesses whose evidence will ultimately serve more than one purpose. Witnesses such as Dr Howard Bath and Ms Colleen Gwynne will, in due course, give relevant evidence in detail about controversial matters. However, it is not proposed to ventilate that evidence this week. And we understand that there are parties who wish to cross-examine these witnesses, but who have not had the opportunity to comply with Practice Guideline 1. There will be ample opportunity for them to do so, however, as it is proposed to recall these witnesses at a later date. That will occur at the point in time when the commission is directly addressing the issues to which some controversy may attach.

The evidence that is to be received in these next days is to be regarded as the first instalment in an information gathering exercise that will inform all that follows. That exercise will continue for the remainder of this week as the Commission is occupied by a series of community meetings and youth forums. Now, those meetings and forums may be of particular relevance in some of the more remote parts of the Territory. Much is already known about procedures applicable to and events that occurred in Darwin and Alice Springs, but this Commission is as dedicated to learn as much as it can about issues which are of specific concern in regions beyond those areas. For the two weeks following these hearings the Commission will be holding community meetings in Tiwi, Alice Springs, Maningrida, Tennant Creek, Katherine, Nhulunbuy, Hermannsburg, Groote Eylandt, Yuendumu, Mutitjulu and Utopia.

May we inform the Commission about some of the information that has already been gathered, for although there is much yet to be learned, much is already known. The terms of reference drew our attention to the fact that other inquiries have already addressed the subject matter with which we are concerned. At the directions hearing we noted that there were, even then to our knowledge, more than a dozen such inquiries into the areas in which we are interested.


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In fact, we have identified more than 50 reports that have some relevance to the issues covered by our terms of reference. Most of these have been produced in the last 10 years. There was a national inquiry, there have been two Royal Commissions, four commissions or boards of inquiry, a parliamentary report, four Northern Territory government reviews and 23 independent reviews that have all published findings and recommendations that command our attention. There are a further seven reports that include relevant statistical analyses, and implementation or progress reviews. We have also identified, from coronial proceedings, 11 decisions which themselves contain relevant recommendations. At this stage I might tender an index that itemises these and the reports identified in this index will be admitted into evidence in due course.

COMMISSIONER WHITE: That index, I think we are at Exhibit 3.

EXHIBIT #3 INDEX OF REPORTS

MR CALLAGHAN: Thank you, Commissioner. We can draw attention to the first item on that index because, Commissioners, it seems to us that all of these investigations have been conducted, and indeed this Commission is being held, under the long shadow cast by the Royal Commission into Aboriginal Deaths in Custody. The Royal Commission into Aboriginal Deaths in Custody was premised on a terrible truth: that between 1 January 1980 and 31 May 1989, 99 Aboriginal and Torres Strait Islander people died in prisons or in the custody of police. Three died in juvenile detention centres. One was just 14 years old.

Those commissioners undertook, pursuant to their terms of reference, to examine the deaths of each of those 99 people and investigate the underlying social, cultural, and legal issues that lay behind their deaths. Those commissioners made 339 recommendations. We call attention today to recommendation 62: recommendation 62 recognised that the problems affecting Aboriginal juveniles are so widespread, and have such potentially disastrous repercussions for the future, that there is an urgent need for governments and Aboriginal organisations to negotiate together to devise strategies designed to reduce the rate at which Aboriginal juveniles are involved in the welfare and criminal justice systems and, in particular, to reduce the rate at which Aboriginal juveniles are separated from their families and communities.

We have identified at least 10 other recommendations that remain, notwithstanding their age, conceptually relevant to our terms of reference. And we reflect in particular on a further three. Recommendation 167 called for the review of practices and procedures operating in juvenile detention centres, in light of the principles underlying the recommendations relating to police and prison custody, with a view to ensuring that no lesser standards of care applied in juvenile centres. Recommendation 181 recognised the extreme anxiety suffered by indigenous prisoners in solitary confinement and that even where it did occur there remained a


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requirement to observe minimum standards for fresh air, lighting, water, sanitation facilities and some access to visitors.

Events at the heart of this Commission draw attention to that recommendation made so long ago. Recommendation 182 concerns the misuse of prison disciplinary rules by correctional officers, and the obligation for prisoners to be treated with courtesy and humanity. We may discover that legislation has been enacted and policies have been drafted to address this issue, but the extent of their application in the Northern Territory will be a legitimate focus for inquiry.

In 2015 a report commissioned by Amnesty International Australia reviewed the implementation of that Royal Commission’s reports recommendations, their implementation by the federal, state and territory governments. We propose to receive evidence from Mr Julian Cleary, a research officer from Amnesty International about that report as it relates to the Northern Territory. Although our terms of reference effectively confine scrutiny to that which has occurred over the last 10 years, these examples and Mr Cleary’s evidence make clear that issues addressed by the Royal Commission into Aboriginal Deaths in Custody are of enduring concern. The principles which underpinned that Commission’s recommendations are timeless.

Those principles are repeated and reflected in recommendations made in many of the other 50 or so reports to which I’ve referred. And, of course, within that 50, there are observations and recommendations that extend to territory that was not necessary for the Deaths in Custody Commission to consider. Our review of all these many reports makes good the proposition advanced by Commissioner Gooda at the directions hearing, when he said that there was not a need for more to be done to describe the issues. With that observation, Commissioners, we respectfully agree. But the very fact that there have been so many reports prepared already and the very existence of this Commission, after so much has been said and written, raises – we suggest – another issue altogether.

It invites a question: do we need to confront some sort of inquiry mentality, in which investigation is allowed as a substitution for action, and reporting is accepted as a replacement for results? The bare fact that there has been so much said and so much written over such a long time is suggestive of a persistent failure that should not be allowed to endure. This commission has not been created to audit that which has gone before, but we see great potential for assistance in an examination of what has been done already. It can only be of assistance to ask questions about whether previous inquiries and their recommendations have been at all effective and, if not, why not?

So we propose to examine this body of work in an effort to ensure that the recommendations made by this Commission do not leave the way open for yet another inquiry into the same issues to be called at some time in the near future. We will be concerned that this Commission’s recommendations are made to the right person or institution. They will need to be framed in such a way as to ensure that their intentions are not frustrated by the commissioning of a further review that seeks


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to test this Commission’s findings. We will be conscious of the need for recommendations that are clear and appropriately targeted, and to the extent that it is possible they must be practical and likely to be effective.

These ambitions might sound obvious but, as we’ve just noted, so much has gone before, and yet so many problems have endured. That is a clue that things might not be that simple. One proposition that does emerge from our preliminary investigations is that the Northern Territory has, compared with other jurisdictions, youth detention and child protection systems that are, in numeric and budgetary terms, relatively small. The following statistics are from the Productivity Commission 2016 government services report, two chapters of which are identified on the index that has just been tendered:

As at 30 June 2015, a total of 1073 children in the Northern Territory were the subject of some form of care and protection order. In 2014/2015 the total expenditure by the Northern Territory government on child protection related services was $119.9 million. That is recorded as an average of $92,000 per child, per year. In 2013/2014 the daily average number of children aged between 10 and 17 years in detention in the Northern Territory was just 48. A further 118 were subject to community based supervision. In 2014/2015 the total expenditure by the Northern Territory government on Youth Justice Services was $23.5 million.

Of that 14.9 million, or 63 per cent, was directed to expenditure on detention based services and 3.5 million, or just under 15 per cent, was directed to community based services. The remaining 4.8 million was directed to group conferencing –

a kind of diversion of young offenders away from courts.

However, despite the relatively small size of the care and detention jurisdictions, it is plain to us that they suffer from complications that are without comparison. At least, they are sufficiently different from those faced in other parts of Australia, for it to be said that much learning from those jurisdictions is of limited value. So in summary, the examination of existing reports about these systems is a vast undertaking. In large part, it does not need to be the subject of evidence. Much can be achieved through research and analysis; those processes are already underway, and our expectation,or our expectations, for this Commission have already been informed by this analysis. On that basis, we can say that we expect certain themes to recur.

In particular, and although we remain conscious as to the limitations set by our terms of reference, we can already discern an interconnectedness of issues that will make it impossible to ignore some matters that are of wider concern to the Northern Territory community. It would be an artificial exercise to consider issues relevant to youth detention and child protection without receiving information about the social and cultural forces that steer young people into detention centres or operate to place them at risk in the first place. Although, of course, this inquiry extends beyond the


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situation of Aboriginal people, the position of Aboriginal children and the socioeconomic circumstances of Aboriginal communities will be a major concern.

And I repeat, whilst our terms of reference do not specifically identify Aboriginal and Torres Strait Islander children, we will not be able to ignore the significant overrepresentation of those children in the child protection and detention systems here in the Northern Territory. According to the Australian Bureau of Statistics, as at 30 June 2015, Aboriginal and Torres Strait Islander people made up approximately 30 per cent of the population of the Northern Territory. However, of those children in detention in the Northern Territory in 2013/2014, 95 per cent were Aboriginal or Torres Strait Islander. Of the children who were the subject of care and protection orders in 2014/2015, 86 per cent of those children were Aboriginal or Torres Strait Islander.

So there is the concept of overrepresentation, and further examples of the themes we expect to confront – and they are only that, at this stage: examples. We foresee a need for the commission to receive information about foetal alcohol spectrum disorder, psychological and intergenerational trauma, hearing loss, and a whole range of medico-social issues that confront disadvantaged young people in the Northern Territory. Additionally, the need to investigate and report upon certain aspects of the treatment of youth in detention is apparent. For example, and again it is only that, we will consider the proposition that the use of behaviour management practices in youth detention centres should not be used to administer further punishment to those children.

As might be expected, when there have been 50-odd reports of relevance, some of these issues have been the subject of investigation and recommendation already. Across governments and communities, efforts have been and are being made to deal with the issues that confront us, but this in turn invites our attention to an issue that we can already tell will be attended by some controversy, because this Commission will have to scrutinise the degree to which these efforts have been coordinated. To illustrate this point we can look to the evidence of Professor Thomas Calma, who as Aboriginal and Torres Strait Islander Social Justice Commissioner, prepared in 2005 and 2008 reports relating to indigenous young people with cognitive disabilities.

At around this time the Northern Territory Emergency Response, commonly referred to as the Intervention, was instigated by the federal government responding to the Little Children are Sacred report. Professor Calma, in evidence to this Commission, will describe the intervention as a significant distraction to policy and program efforts that were being undertaken at the time. As he noted in his 2007 social justice report, this action by the federal government, whilst using the Little Children are Sacred report as a catalyst, resulted in legislation that, amongst other things, excluded the application of parts of the Racial Discrimination Act; introduced an income management regime; compulsorily acquired land; prohibited the sale, consumption or purchase of alcohol in prescribed areas; and ended the funding of the Community Development Employment Program.


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We will, in due course, deal further with the Intervention in later hearings, but for current purposes it is cited as just one example in which it is possible to diagnose a tension between efforts being made by different parties, parties who are ostensibly striving towards the same end, but whose actions complicate rather than complement each other. That is a tension which must be resolved. And so it is to this type of analysis in particular that we must bring in awareness as to the interconnectedness of issues and the necessity for the recommendations of this commission to exist within, and to improve, the intricate frameworks that administer youth detention and sustain child protection in the Northern Territory.

Although we have learned much from the analysis already done, we believe it will still be of some assistance to explore, in public hearings, a sample of the work done already and to hear evidence from witnesses well placed to provide an overview of the task that confronts us. It seems to us that two of the witnesses best qualified to provide the Commission with at least a preliminary understanding of the framework are Dr Howard Bath and Ms Colleen Gwynne. Dr Bath was formerly the Children’s Commissioner of the Northern Territory and Ms Gwynne occupies that role now.

As I alluded to earlier, there are at least two aspects of the evidence of these witnesses that will be important and each has evidence to give about specific events that will be of interest and there are parties with leave to appear who may wish to produce their own evidence about these issues, and who may wish to question Dr Bath and Dr Gwynne about them. Those events, and that process, will be given attention in due course as I have indicated. Those witnesses will be recalled at a later date. For current purposes, however, what is important is to learn from both of them about the child protection and youth detention systems that operate in the Northern Territory.

To their statements are annexed the successive annual reports covering the years 2008 to 2015. Those reports provide a chronology of the needs and vulnerability of children throughout the Territory. These witnesses, we apprehend, are in a position to provide the Commission with what we anticipate will be a helpful overview of the issues that will be addressed in the months ahead. Also by way of overview and introduction, we plan to receive evidence at this time from the National Children’s Commissioner, Ms Megan Mitchell. Amongst other things, Ms Mitchell’s evidence will remind us of the internationally recognised standards that provide a benchmark against which you, Commissioners, can assess all that comes before the Commission.

There are two notable features about the status within Australia of these human rights obligations. First, these obligations are entered into on behalf of the nation of Australia, and so they do apply to the states and territories. Other than by reference to the external affairs power, the Commonwealth does not have specific power to legislate about these matters: it is for the states and territories to do so. It follows that a failure by a state or territory to act in accordance with Australia’s international obligations will trigger enforcement of those obligations. As we apprehend it, breaches of human rights standards by a state or territory are a matter for which the


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Australian government can be held to account through international law and in the various processes of the United Nations.

In the Australian system of law international treaties are not of domestic legal effect unless incorporated through legislation or other measures. It is and will be, therefore, of great importance to examine the existence of domestic laws in the Northern Territory which directly or indirectly give effect to Australia’s treaty and other international law obligations, and to examine the extent to which there may be deficiencies. For our purposes we note at the outset of proceedings that there are limited legislative protections of human rights for children at the national level, and in particular since juvenile detention is a state and territory responsibility, there are no national laws that protect human rights in this context.

As to the Northern Territory government’s treatment of those responsibilities, we propose to ask Ms Mitchell about the extent and sufficiency of existing legislative protections for the rights of children in detention in the Northern Territory. If it pleases the Commission we propose to commence receiving evidence in the form of testimony from Ms Mitchell.

COMMISSIONER WHITE: Thanks Mr Callaghan. Could I just mention, for the convenience of those who are here we propose to take a midmorning break, depending on how it plays out with the witnesses, at 11.30 for 20 minutes. So those of you who need to do things, you can be confident that we will take the break at around about that time for 20 minutes, and then we will break for lunch at 1 o’clock. Thanks Mr Callaghan. If – yes.

MR HARRIS: Commissioner, before my learned friend calls his witness, Harris is my name. The Commission gave me leave to appear in respect of each of the terms of reference of the Commission for the former Minister for Corrections, John Elferink.

COMMISSIONER WHITE: Yes.

MR HARRIS: I wish to raise, very briefly, a preliminary matter which impacts upon the application which I made to the Commission in September for leave to appear. Subsequently, the Commission granted that leave in respect of each and every one of the terms of reference. It’s probably reasonably well-known that in the immediate aftermath of the ABC Four Corners program, which was the catalyst for this Royal Commission, that Mr Elferink – who was at that time the Minister for Corrections, was relieved of his portfolio by the then-Chief Minister. In those circumstances the Northern Territory Government solicitor was not able to appear in the Royal Commission to represent Mr Elferink’s interests, because of a high probability of a conflict of interest arising.

We have had this confirmed as recently as yesterday, and I have correspondence from the Solicitor for the Northern Territory. I wanted to inform the Commission that when I appeared at the directions hearing, and sought leave for Mr Elferink,


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those instructing me and myself had been retained by the NT Government at its cost to represent the interests of Mr Elferink in the Royal Commission. There was no qualification or limitation on that retainer being limited to some narrow aspect of the Royal Commission’s terms of reference, but if necessary it was to represent Mr Elferink in the Royal Commission to its conclusion. Had there been any qualification or my understanding of any qualification, I would not have sought the wide ranging leave which we sought and were granted.

I should say it was not our intention to be present in relation to the evidence which had no potential impact on Mr Elferink, or in respect of which he was not able to make any positive contribution. That’s not unusual in proceedings of this type, for there to be come-and-go counsel as it were.

COMMISSIONER WHITE: That’s right.

MR HARRIS: And less lawyers are generally better than more, to my observation.

COMMISSIONER WHITE: Very generous, coming from senior counsel.

MR HARRIS: But, having regard to the fact that leave had been given for Mr Elferink to appear in relation to all of the terms of reference, it was our expectation that it was most likely that we would be here more often than we would not be here. I rise now because I feel bound to inform the Commission that that situation has now changed. Our instructions to appear for Mr Elferink from the Northern Territory Government at the cost of the Northern Territory Government have been terminated and the government has indicated that, subject to Mr Elferink being successful in changing the government’s mind – and I can inform the Commission that we have put a submission to the NT Government asking them to reconsider this decision – that decision has not yet been made.

But, subject to that, we are no longer funded to represent Mr Elferink’s interests in the rest of this Royal Commission. It’s disappointing to have to make that statement on day 1 of the proceedings. I should say we remain retained by Mr Elferink himself, but he does not have the financial wherewithal to be able to fund us through the life of this commission to represent his interests. The reason why I mention this at the outset is that as a consequence of, as it were, the rules being changed after the leave had been granted, and after we had sought leave to appear on the strength of them, it’s doubtful that even in relation to the witnesses that have a direct impact on Mr Elferink that we will be able to be here to represent his interests and hopefully to assist the Commission.

We will do what we can, but I would not wish the Commission to think that our absence was any discourtesy towards the Commission or the result of any disingenuity in terms of the leave that we sought back in September, which we did in good faith believing that we were funded to represent Mr Elferink’s interests through the life of the Royal Commission. As I said, we will continue to do our best to do that, but the brutal reality is there’s an economic imperative which will make the


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likely length of this Royal Commission and our active participation in it incompatible. It has another impact, which I just touch on briefly, and I will certainly be raising this with my learned friends counsel assisting.

Practice Guideline 1, which if I may say so very sensibly is an initiative designed to limit the time for cross-examination, but it very substantially front loads the work that has to be done in relation to what may occur in the actual proceedings themselves. Where parties are struggling in terms of funding, that imposes a very significant burden and one we – I can give advance notice of – we may not be able to meet. We will do our best to comply with the guideline but I’m not confident that we will be able to. It’s certainly our preference to be here to participate in the proceedings, both to protect our client’s interests but hopefully, through him, to assist the Commission and to deal with the critical and important issues raised by the Commission’s terms of reference.

Some of those issues were raised in the ABC Four Corners program and no doubt the Commission will consider those issues very carefully. The opening we’ve just heard from my learned friend Mr Callaghan underscores the fundamental importance of this Royal Commission to the Northern Territory community and to Australia. And as I said, the ABC Four Corners program was the catalyst, although this is not going to be an inquiry into the ABC Four Corners program. But I’m bound to say that, in its treatment of Mr Elferink, the ABC Four Corners program was dishonest and unprofessional. It is a matter of regret that these recent developments will compromise the protection of his interests in these proceedings by us. I hope, Commissioners, you will then understand, in light of the fact that there’s not to be any cross-examination this week of witnesses with whom we do have an interest, that my early departure is not as a result of a lack of interest in the proceedings but guided by that economic imperative to which I’ve referred.

COMMISSIONER WHITE: Thank you, Mr Harris, for that indication. There are perhaps a couple of observations that I might make. One is, of course, that there is a real time transcript of these proceedings available, and will be available on the Commission’s website, and I’m sure that I don’t need to tell you that Mr Elferink, of course, can keep an eye on things for himself in the privacy of his own study, or wherever he likes to do these things, and can be alert to matters of interest to himself. It may well be that it would be useful perhaps for you, or for those instructing you, to have a conversation with senior counsel assisting in which you might be able to talk through some practical arrangements about these issues: things like alerts and so on.

And if there is indeed to be a body of evidence that might be adduced or wish to be adduced by Mr Elferink, either by himself being a witness, the Commission has facilities for him to come in and make his statement. I think it’s sometimes lost sight of that a commission is a very neutral board.

MR HARRIS: Yes.


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COMMISSIONER WHITE: And we have the assistance of very able solicitors and junior counsel who have been taking statements from the witnesses to date. So different from the courts in which most of us have worked all our lives. And so those sorts of things will assist people, I think, in Mr Elferink’s position, as well as perhaps people a little lower down the chain. So if you could pass on all of those messages to your client, I think that perhaps there can be some resolution that is not burdensome for him in financial terms.

MR HARRIS: Yes, thank you, Commissioner. I should say we will certainly be monitoring the process. Mr Bonig, who instructs me will, if it’s convenient to the Commission, sit in the counsel’s seat if I’m not here and he is here. And we have done a considerable amount of work already preparing a witness statement for Mr Elferink which we will obviously make available if it’s required, or at least contribute to those who may wish to take it from the Commission, and it would be our intention to be here, funding or no funding, when – if and when he gives evidence.

COMMISSIONER WHITE: All right. Well, thanks Mr Harris. But – so can I urge you then, perhaps you might talk in the break if you’re going to be here then, or just with – all our contact details are readily available, as you know.

MR HARRIS: Yes. I won’t be escaping Darwin that quickly, Commissioner. I will be able to speak to counsel assisting. Thank you.

COMMISSIONER WHITE: Thanks Mr Harris.

MR O’BRIEN: Commissioners, I also rise to discuss the attendance of a particular person, that is [Redacted]. My name is O’Brien, I appear with leave already granted for [Redacted] with Ms Goodhand. As is commonly known, [Redacted] is in the Darwin Correctional Centre serving out a portion of an unexpired sentence. This is a matter I have raised with the solicitor assisting, but we haven’t really managed to get very far. [Redacted] has indicated to me that he would like to be present during these proceedings, from start to finish if possible, or at least view it from a screen that can be accommodated within the prison within which he’s housed. We anticipate we are going to need the support of the Royal Commission in our negotiations, which are continuing with the prison, to allow that to occur.

It is made all the more difficult to get instructions and go through the requirements, particularly in relation to Practice Guideline 1, in securing appropriate instructions and putting together a statement, which is going to be of considerable length from [Redacted], who’s in detention. Very difficult to achieve long conferences with him, and without whom – without the use of a computer, so we have been told we can’t bring computers into the jail, so we are restricted to writing notes. So the difficulty of having him in custody is presenting a difficulty already for us, so he would like to be here – be present to watch proceedings or at least remotely watch proceedings in camera, and we will need the assistance of the Royal Commission for that to occur.


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Obviously he’s not here today. He would like to be here today and he would want the Commissioners to know that that’s his present inclination and desire.

COMMISSIONER WHITE: What’s the state of your discussions, without breaching any confidential conversations? Have you had only preliminary discussions with the solicitors assisting?

MR O’BRIEN: Well, some weeks ago we foreshadowed this in written correspondence. Yesterday, we followed that up – those up having received firm instructions from [Redacted] as to his want to be here.

COMMISSIONER WHITE: Probably wasn’t the best day to choose, the day before the hearing, so probably a bit distracted.

MR O’BRIEN: Well ..... in jail.

COMMISSIONER WHITE: I know.

MR O’BRIEN: We have to visit and take instructions in that manner ..... it’s simply impossible to call on him at any point in time.

COMMISSIONER WHITE: Indeed.

MR O’BRIEN: And that’s the very problem. But, as I said, we anticipated it to be an issue some weeks ago. We hope that that can be accommodated sooner rather than later. We understand that there are issues of power under the Royal Commission Act that need to be considered, and also the prison authorities would need to cooperate with that – this particular application. But it would seem to me that he could be given some sort of leave, on either the Commissioner’s recommendation, or at least on our application, and supported by counsel assisting or the Commissioners themselves.

But that is something that he obviously – because of the numerous complaints that have been made and documented in relation to this Royal Commission, forms a considerable body of the evidence as to the factual circumstances giving rise to even some of these reports that will be considered this week, and although there might be limited scope for cross-examination of some of these witnesses, he nonetheless is – will form a significant part of the commentary, I imagine, what has happened to him. It will be a significant part of the commentary throughout the course, not only this week, but right throughout the Royal Commission. It is essential if he wants to be here, and he does, that he be here.

COMMISSIONER WHITE: Thanks Mr O’Brien. We will take that under consideration, although I think it would not come as any surprise the issues of security would probably suggest that the best path to be looking at will be some facility in the detention for centre for him to watch. It’s being streamed live, and – but you can take that up perhaps in the break.


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MR O’BRIEN: Well, I can say I have appeared for prisoners before in Royal Commissions and that has been accommodated. So I would be grateful for that.

COMMISSIONER WHITE: If you can draw on your experience when talking to our solicitors about that, that would be much appreciated.

MR O’BRIEN: You can appreciate that I’ve done that. Yes, thank you.

COMMISSIONER WHITE: Yes, thank you.

MR LAWRENCE: If I could announce my appearance, Lawrence, who has been granted leave on behalf of the juvenile [Redacted].

COMMISSIONER WHITE: Yes, Mr Lawrence.

MR LAWRENCE: It sort of combines with my learned friend’s application, and informing the court. I would like the opportunity to inform the court that [Redacted] and his family are most interested in this proceeding to the extent that they have actually come up here and they are present with me today in court. He’s at the back of the court with two of his aunties and some other family members, which reflects his keenness and interest – their keenness and interest in this Royal Commission of inquiry and indeed his desire to cooperate and assist with the Royal Commission in any way that they wish to occur.

I take this opportunity – I wouldn’t let this opportunity be missed to let the Commissioners know that he has actually come up from year 11 in Tennant Creek High School, and they are aware of him – he has been given permission to come up here, and that’s the situation.

COMMISSIONER WHITE: Thank you, Mr Lawrence.

MR LAWRENCE: Thank you. Mr Callaghan.

MR CALLAGHAN: ..... and I might just indicate, for the benefit of those who are appearing, that the lectern to my right is a designated space for anyone who wishes to address the Commission, and doesn’t have to show their initiative shown by Mr O’Brien, and simply turn around. I call Ms Megan Mitchell.

COMMISSIONER WHITE: Do come in, Ms Mitchell. If you wouldn’t mind coming up to the witness box. Ms Mitchell, I need to swear you in to give your evidence formally, and you can choose whether it’s a religious or a non-religious.

MS MITCHELL: Non-religious.

COMMISSIONER WHITE: Yes. Thank you. Would you mind standing while you do that.


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MEGAN MITCHELL, AFFIRMED [10.51 am]

EXAMINATION-IN-CHIEF BY MR CALLAGHAN

COMMISSIONER WHITE: Thank you, please be seated. Yes, Mr Callaghan.

MR CALLAGHAN: Would you please tell the commission your name and occupation?---My name is Megan Mitchell, and I’m the National Children’s Commissioner at the Australian Human Rights Commission.

Ms Mitchell, you prepared a statement dated 9 October 2016; is that correct?---That’s correct.

And is that the document on the screen in front of you?---That’s correct.

And there are two annexures to that statement, is that correct?---Yes, that is correct.

And can you just see those on the screen as well; is that correct? I tender that statement.

COMMISSIONER WHITE: The statement and two annexures is exhibit 4.

EXHIBIT #4 STATEMENT OF MEGAN MITCHELL WITH TWO ANNEXURES

MR CALLAGHAN: Can we talk initially about your role as commissioner at the Human Rights Commission. You were appointed on 25 February 2013; is that correct?---Yes.

It’s a statutory appointment, made under the Australian Human Rights Commission Act. You have been, by that calculation, working in that role for about three and a half years. What’s the remaining term of your appointment?---It’s a five year statutory appointment.

You’ve identified in your statement a number of functions that you exercise under the Act. We can read those for ourselves, but they are those listed in section 46MB subsection (1); is that right?---Correct.

And whilst we are in that section of 46MB, the Act identifies specific human rights instruments to which you must have regard in the exercise of your functions; is that correct?---Yes, it does.

.ROYAL COMMISSION 20161011 P-15 M. MITCHELL XN©Commonwealth of Australia Transcript in Confidence MR CALLAGHAN

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I think, if we look at paragraph 13 of your statement, we can see those there. And, as I say, we can read the statement for ourselves, but can we get perhaps a translation of some of the terms that might be familiar to human rights - - -?---Well - - -

- - - lawyers, and I will take you few a through if that’s okay. An “international instrument”. Can you just in plain English?---Yes. Well, Australia signs up to and ratifies a range of international instruments called treaties and they do this because they – Australia, and other states across the world, do this because they want to demonstrate a commitment to certain human rights, and those commitments are set out in various treaties. And in doing so, they commit to implement those at their domestic level. So, for example, one of the most important treaties in terms of the work that I do is the Convention on the Rights of the Child, which Australia ratified 25 – 26 years ago, and it sets out all the basic conditions that children need to thrive and flourish in society. And many of those rights are indivisible, in that they are not in competition with one another but must all operate together to ensure a child – a child’s wellbeing.

Well, you talk about treaties. In paragraph 13 there’s use also of the term covenant. Can you explain that?---Some – it depends on their status in international law. Some have the status of ratification and signatory, others are in development, and may be a covenant.

We will come back to ratification in a second, but there is also use in paragraph 13 of the term convention?---And again, it’s their status in international law, in terms whether they are a fully ratified instrument that needs to be implemented in the domestic context; whether there are statements of principles that a country signs up to or whether they are in a more rudimentary status on their way to being a treaty.

And can you just elaborate on the concept of ratification?---In general – and it is different for different treaties, depending on what the subject is about, but in general there is a two-stage process: the signing and the ratification. The signing indicates intent to implement all the provisions that a treaty imposes on a state or a country. The ratification indicates, “We, as a country, are ready to go, we’re ready to implement.” And so often there’s a little delay between the signing and the ratification, while state parties ensure that they have all the necessary preconditions in place to abide by the articles or the provisions in a treaty.

And in paragraph 13(b) you talk about instruments being in force for Australia from time to time. What does that mean when you talk about it being “in force”?---Being in force simply means that they apply to our jurisdictions and we must make efforts to ensure that they – that they have – that they are realised within domestic law, policy and practice. Now, in practice, that doesn’t always happen in the case of Australia, because of our federation of states and territories.

Can you just – we will probably come to that later as well, but can you just elaborate on that now?---While we are required to put in place – to reflect our commitments in


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treaties in domestic laws, we do this in a rather piecemeal way, and I’ve actually made some notes about this, this morning, which I’ve provided as well.

Would you like to refer to any notes or - - -?---Yes, that would be –

With the Commission’s leave .....

COMMISSIONER WHITE: Yes, of course.

MR CALLAGHAN: .....?---Just to explain a little more. Thank you.

So just to be clear for those who are present, you’ve provided a statement which everyone has. These are just notes that you’ve made in preparation for the evidence that you’re going to give today; is that right?---Yes, and in particular I made notes about how human rights obligations internationally might be understood by all of us.

Okay. So it’s directly relevant to the questions that I was just asking. So, please - - -

COMMISSIONER WHITE: I think this is sort of international/constitutional law made easy for those who are not terribly familiar with it.

MR CALLAGHAN: I hope so, Commissioner?

THE WITNESS: And I’m not a lawyer myself, so I need to get my head around this stuff as well. So - - -

MR CALLAGHAN: Yes, that’s no disqualification?---So as I noted before, the international treaties are commitments made by a government to other governments who are also party to the treaty, and these treaties set out standards of treatment that the government will apply in its territories or control – within its territories and control. And in general they go to the standards by which people will be treated humanely, fairly, and – and are able to get the support they need to live full healthy lives in general. And there are two places where human rights obligations can impact: internationally and domestically. So countries agree to independent review processes by human rights treaty committees – that’s one of the international consequences by signing up to a treaty, and those human rights committees and processes can make recommendations and express concerns. Second, for most treaties, individuals who believe that their rights have been breached can bring a complaint, and these are usually called communications, to a UN committee. And this can – and they may find noncompliance or compliance of that complaint. And then they will communicate their findings back to that country or state. And sometimes, under some treaties, countries can bring complaints against other countries to the UN committee, although that’s very rare. So, in fact, at the international level breaches of rights are a source of embarrassment to a country, and can impact on how that country conducts its diplomacy, and moral authority in multilateral or even bilateral processes. So at the domestic level when a treaty has been ratified, countries commit to taking actions that implement those obligations in


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their domestic systems, and there are two approaches to this broadly. You know, some legal systems are unitary systems, unlike our own, so the ratification of a treaty automatically results in recognition of the terms of those treaties in domestic law. And the alternative approach is where there is a two step process. You ratify and take on the obligations, and then you amend or create domestic law, policy or practice to implement it. So in – where this doesn’t happen, in Australia’s case, we don’t have legal effect of human rights obligations, although we do have – we have moral effect. So many human rights in our system are not backed up by legal protections. Instead they’re soft mechanisms like the Human Rights Commission functions, where I work. But – and the most common way that Australia does not comply with international human rights standards is that we do not provide legal protection in our system for human rights. So that really sums up what we should be doing and what we are not doing. Nor do we have a bill of rights in this country, which many other countries had, that also can provide some safeguarding for those legal rights that we sign up to in international treaties.

So you used the term “soft” there. Does that reflect, in effect, Human Rights Commission’s functions to identify noncompliance, but not really do much more than that?---Well, you know, the Human Rights Commission can make recommendations to governments, and does so, and – but it is up to the government of the day to act on those recommendations.

And have you no power ensure compliance?---No.

No. Okay. Well, moving on, I suppose from that helpful, thank you, general understanding of what’s involved, you’ve identified a number of instruments which you consider to be relevant to the treatment of children in detention and to juvenile justice; is that correct?---Yes.

Again, just in the interests of defining terms, if we look to paragraph 34 of your statement where you talk about children in detention, can we just get on the same board about what we mean by detention?---Detention can cover a whole range of environments, including juvenile detention, which is part of the subject of this inquiry. But detention of juveniles can also occur in immigration detention facilities, in psychiatric units, in police cells and watch houses. Those are the kinds of things - - -

On a fundamental – I’m sorry?---Sorry. That’s it.

On a fundamental level we are talking about anywhere where someone is deprived of - - -?---Deprived of their liberty in a secure environment.

Now, if we go back to paragraph 27 of your statement, you identify particular articles of three treaties, I think, which are in force, as we now understand that term, in Australia; is that right?---Yes.


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And can you just identify those for us?---Yes. The three main treaties that are relevant are the International Covenant on Civil and Political Rights, the Convention against Torture, and the Convention on the Rights of the Child.

Can we get each of those shown on the screen, please, if we haven’t already. Just excuse me?---Could I also make the point about the Convention against Torture, it is also against – and I mightn’t get this exactly right here but, you know, other inhuman, cruel, degrading treatment or punishment.

Just excuse me for a moment.

COMMISSIONER WHITE: Could I ask you, if it’s convenient at this stage, about the Optional Protocol to the Convention against Torture?---Yes, Commissioner. Thank you for the question. The Optional Protocol to the Convention against Torture is currently under consideration by Australia, whether we sign up to it. It is intended to give life and address the spirit of the Convention against Torture, to which we are already a party. So in that it does not impose any additional obligations on states and territories, but instead helps – sorry, states to demonstrate and advance their commitment to the Convention against Torture. In – specifically in relation to oversight which is - - -

Can you just elaborate just on that just a little, if you would, Ms Mitchell?---Yes. So what it would – and many countries have already signed and ratified this convention. We have – optional protocol. We have - - -

I am going to interrupt you again, and I’m sorry to keep doing this. When was it open for signature, can you recall, more or less? I mean, has it been around for a long time?---I think something like 2002, or ’6. Or – can I get back to you with that. But we signed it in 2009, and we are yet to ratify it. So it’s a very big gap between our signatory and our potential ratification. So what it would do is improve the consistency and transparency of oversight of places of detention in Australia, and it would involve two mechanisms. One is a – the creation of a thing called a national preventative mechanism, which would coordinate the oversight information and activities of places of detention and do – and produce regular reports at a domestic level, and at an international level it would permit visits from an international expert subcommittee to that Convention against Torture who would make visits to places of detention from time to time, make recommendations to the jurisdictions involved. Those – it’s preventative in nature. Those are not made public, they are actually privately made to the jurisdiction. So it is a preventative mechanism, it’s – and designed to prevent abuses in places of detention.

I assume, without knowing, that the idea is that they would be relatively without notice visits or the potential for them to be relatively without notice visits?---They can be. They would be no more than every seven years, so I doubt the visits will be - - -


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Well, I wasn’t thinking of the international ones being without notice. That would be impossible?---Yes, sorry.

But the local oversight?---The local oversight, yes, they should be able to be made on a random basis. That is one of the requirements.

Thank you. Mr Callaghan, I’m sorry to have interrupted your train of questioning.

MR CALLAGHAN: No. We will come back to that, because I think that’s very much at the heart of some of the work you’ve done, isn’t it?---Yes.

And we did just have – to answer Commissioner White’s question, we did have the protocol on the screen. Can we go back to the screen that was there before? And I think - - -

COMMISSIONER WHITE: Thank you.

MR CALLAGHAN: - - - the answer to your question may be in the third paragraph from the top. From that point, it was available for signature.

THE WITNESS: February 2003. Yes, thanks - - -

COMMISSIONER WHITE: ..... Mr Callaghan.

THE WITNESS: I was close. It was somewhere between 2002 and 2006. All right.

MR CALLAGHAN: ..... and we might tender – there’s a bundle of binding international human rights treaties relevant to children in detention, as identified by the witness, which was on the screen, I think, a moment ago. But I will tender, as a bundle, those treaties.

COMMISSIONER WHITE: Yes. Thanks, Mr Callaghan. So that bundle of human rights treaties to which Australia is – is that a signatory or a ratifying party?

MR CALLAGHAN: That’s as a ratifying.

COMMISSIONER WHITE: Ratifying. Yes, thank you. Exhibit 5.

EXHIBIT #5 BUNDLE OF BINDING INTERNATIONAL HUMAN RIGHTS TREATIES RELEVANT TO CHILDREN IN DETENTION TO WHICH AUSTRALIA IS A RATIFYING PARTY

MR CALLAGHAN: If we can go back again to some ground work, I suppose. You speak, for example in paragraph 30, about interpretative instruments and identify


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some of those as most significant in respect of youth detention; is that correct?---Yes.

And we have a bundle of international rights interpretative instruments relevant to the detention – relevant to children in detention and juvenile justice, as identified. Again, I might tender those.

COMMISSIONER WHITE: That – you are tendering those now, Mr Callaghan?

MR CALLAGHAN: Yes, I tender those, as itemised in paragraph 30 of the ..... of this witness.

COMMISSIONER WHITE: Thank you. So we will call those interpretative materials of human rights instruments. Will that be a sufficient identifier?

MR CALLAGHAN: Yes.

COMMISSIONER WHITE: Yes. Exhibit 6. Thank you.

EXHIBIT #6 INTERPRETATIVE MATERIALS OF HUMAN RIGHTS INSTRUMENTS

MR CALLAGHAN: And just while we are getting documents in you’ve also identified, Ms Mitchell – you’ve referred us to a number of general comments as you describe as interpretative documents made by committees that monitor the implementation of the treaties that we’ve identified earlier; is that correct?---That’s right.

Yes. Well, I tender a bundle of interpretative general comments by treaty monitor committees.

COMMISSIONER WHITE: Exhibit 7 for that bundle of relevant interpretative comments.

EXHIBIT #7 BUNDLE OF RELEVANT INTERPRETATIVE COMMENTS

MR CALLAGHAN: And just for – perhaps a bit more education, Ms Mitchell, how are those committees constituted?---They are made up of experts in the fields of which they seek to make comment. So in terms of the Committee on the Rights of the Child, there are a range of experts from various countries. There would be – you know, health professionals, child development experts, and if they were looking to make a comment on juvenile justice there would be people who were skilled in that field as well. So there are a diverse group of people with the kinds of qualifications


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required to have expertise in these areas and to make such comments, and those comments are designed to provide guidance to states that have ratified various conventions and treaties.

Now, one problem with tendering these documents electronically is that we don’t get the sense of just how much volume there is. But you would agree with this proposition, I would suggest, that there is a large volume of articles, rules, guidelines, and so on the issues of juvenile justice and youth detention?---Yes, there is.

Can I ask your opinion about why there is such a multitude of material that relates specifically to the rights of children in detention?---Yes. Well, first of all children, by their nature, are developmentally vulnerable. They are in a period of rapid brain development and emotional turmoil, and their bodies are changing rapidly as well. That makes them developmentally quite vulnerable. The second issue relates to their relative power to – in terms of them versus adults. So, I mean, they have relatively less power as individuals in the world, they are often – their voices are often not heard and, of course, they are not franchised. The third relates to their particular situation in detention. We know that institutions are inherently risky places, and we have seen that through other Royal Commissions operating in this space.

And that’s any institution?---Any institution, but where children are involved and the relative imbalance of power between adults who are carers and children is heightened, and there are – much greater risk of abuse, and exploitation, and silencing. And I think the fourth thing I would offer is that often when a young person, a child or a young person, is in detention they are away from their family and their natural advocates, and so that makes them additionally vulnerable. And these are just some of the reasons why there is a body of work out there designed to help us understand children’s vulnerabilities in these situations and what we can do to safeguard them.

And you talk about that body of work that we have, and we can analyse it further in due course, but I suppose what I would like to you comment on is the way in which it might all work together. Can we look at these things discretely?---There are times I think you can look at things discretely, but really children’s rights are indivisible and intersect. So one right isn’t in competition with another: they need to be all satisfied in order for a child to do well. So, for instance, how can you benefit from your – a right to a good education if your – if your right – if you’re subject to violence and abuse? So these two things need to – the right to be safe and a right to a good education go hand in hand, for instance.

Well, can I pick up on those concepts because I was going to ask you, we have got this huge body of work at an international level, presumably produced by some of the great minds of the age but, well, can we cut through it? What are the overarching objectives of all of this?---You know, human rights are not rocket science. They are pretty basic things that we would all understand that everybody deserves to do all – to be okay and to do well in life. They are things like to be not discriminated against;


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to survive and be healthy; to be treated fairly and with respect and dignity. These are the sort of cut through messages through all the human rights treaties and documents. But there are specific issues, when we come to talk about children, because of their vulnerabilities that need to be understood, like their right to education and what that education should look like. How do we have an education system that is not only good for their learning but good for their self-esteem, their sense of belonging and inclusion, for instance? So, yes, there is a large body of work, yes, a lot of it is interrelated, but there are also some very specific things around children’s needs that we need to be cognisant of when we are in – in particular, when a government is setting out what services and supports and laws it’s going to make in relation to children.

And are there any of those that you would put front and centre in the course of your evidence this morning, or is it not that simple?---In terms of being a good thing or a bad thing?

No. For children in particular. We are talking about those which specifically apply to children which may not necessarily - - -?---I think there are a lot of laws and systems and programs that apply to children that we don’t necessarily regard in that way and we should be. I mean, the way we run our health systems, our education systems, even social security systems. There are all – laws that underpin these that actually go to children’s rights and children’s needs and wellbeing. So there are many, many laws around there that actually impact on children’s rights, but don’t necessarily take them into account on a routine basis.

All right. Well, perhaps – can we come back perhaps to the concept specifically of children in detention?---Yes.

And accepting that the objectives of the materials are to achieve certain basic standards for those children. What, as you identified, are the primary mechanisms to be invoked by which those objectives can be achieved for children in detention?---So that they can have their rights upheld and - - -

Yes?---And safeguarded. Well, I think the main – there are many aspects of that, and that apply – that should apply in a youth or child detention setting. The first is there must be strong and robust oversight, and that including the capacity to make complaints. And those complaint systems must be accessible and understood.

We are talking about oversight of those administering the detention centre?---Yes, indeed. They are – also, there needs to be well trained, well recruited staff who understand human rights and children’s rights in particular. And also, you know, child development and the trajectory that children are on, because intervening in with a child is very different than intervening with an adult, and requires particular expertise. Other elements in – of good practice, that should be part of a standard in – is ensuring that – that kids have access to family on a regular basis. This is the main way that a child learns, and is guided through life, so it is really important that children have regular access to family members while they are in detention. Other


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standards that should be applied also relate to – the rules and regulations must be fair and understood by all as well. Those are just some of the things. I might have more to say about that in the – was there anything in particular you were thinking about?

Well, visitation, I suppose, is - - -?---Yes. And access to legal and other visitors. Certainly needs to have access to legal remedies and legal advice.

And associated with that is – or would be access or some sort of complaint mechanism?---Absolutely. And there needs to be both internal mechanisms, because there is daily stuff that needs to happen, you know, in a centre, but also external. And I include that as part of the oversight that – access to external complaint mechanisms and people who have an independence of function from that facility.

All right. I was about to move on to - - -

COMMISSIONER WHITE: Could I just ask this: and access to appropriate education presumably?---Yes. Look, I’ve just – you know, gone blank. But, of course, access to education. It’s a right to have an education, and that education should be of a standard available to all children and young people, and also a program of activities suitable for them, and also qualifications as well, so that if they’re at a stage where they would be gaining qualifications that they have the capacity to gain those qualifications in those settings.

In – in an ideal situation, would it be the case that children would go out of the detention facility for their education or would it – would it occur within the institution?---In most facilities in Australia, and in fact I think all, the Department of Education – not all of them, but in most facilities the Department of Education in that state or territory would run the school within a facility, or schools within a facility.

And – yes, I can understand there are obviously security issues which would make anything else difficult?---Depending on their order or their sentence they may be able to go outside for programs, including educational programs. Depending.

In the course of your work as the Children’s Commissioner for Australia, Ms Mitchell, do you actually visit youth detention centres and observe, or do you have an understanding of how their education facilities operate around Australia?---Yes, I do. I have and I do. This year I’ve been doing work across Australia on the – whether Australia is in a position, and how well it is in a position, to ratify the optional protocol we have been speaking about. And in the course of doing that work I have visited a number of centres around Australia. I do visit centres anyway, because that’s where kids are and I’ve got to get to – somehow get to all the 5.2 million children in some way that I represent, or I should – I’m working for. But, yes, this year I visited eight of Australia’s juvenile centres, and observed what was happening there, both in the educational elements of the facility and the conditions and treatment, but also I talked to a number of young people in those facilities as well.


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And this is probably a question that you might hesitate to answer. I’m just talking about educational provision within youth detention facilities. Was there any one or any ones that you would think were getting closer to the gold standard, that were standouts in the way they were developing educational programs for children in detention?---Yes. I am – I am loathe to pinpoint one or another, but there are examples of good practice out there and they are, you know, they are schools where the children are getting a tailored one on one education in the main, because many of these young people are well behind by the time they come to these facilities. Many are illiterate or have cognitive impairments of various kinds, so they do need tailored programs; but also connected into, as I say, a qualification regime; and also that can adapt to a hands on learning style in the main, which is what many of these young people need. But many of the young people really enjoy going to the school. For some it’s the first time they’ve been at school for a steady period for quite a while, so it is a chance for them to catch up a bit and get back on track educationally speaking. Some have great – some of the better ones have really good connections with mainstream schools in the community where that child is from, so that they can follow through with individual learning plans that cross over both the centre and the school environment that they will return to, hopefully.

And just one more question, if I may Mr Callaghan and Mr Gooda. Do they tend to work tandem with the health services, because I think from our reading and general understanding is there are lots of health issues which impact upon the capacity to receive a reasonable education?---In the more advanced centres there’s good conversations on a regular basis with all the various providers of services that – you know, the medical staff, the mental health providers, the education providers and the correctional staff themselves, and in those centres you would generally have a case plan that involves all of those people.

Thanks very much.

MR CALLAGHAN: I might just explore one aspect of your evidence on this topic of education, and in response to Commissioner White you indicate you have visited a number of youth detention centres. In fact, you did visit the Don Dale - - -?---I did, yes.

Centre; is that right? And you’re aware that the Commission is going to be concerned with specific events at Don Dale and I don’t wish to - - -?---Yes.

- - - adduce from you evidence from anything other than some general propositions. But, specifically in relation to education, you said in your evidence earlier that it was important that the education be of a standard available to all. In other words, I would suggest, that a kid getting a state school education in the community would get the education that was the same as that being given to a child in somewhere like Don Dale; is that right?---Yes.

But was that, to your perception, the case?---As far as I could tell that wasn’t the case in the Don Dale facility, and that a lot of the kids were unhappy with the educational


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provision there, and made the comment that they understood that they – even if they achieved various scores, or got through various programs, that that would not necessarily contribute to their qualification. Now, I will need to check that, but that’s my understanding.

And, whether it’s the case or not, that was the perception - - -?---Yes.

- - - that they shared that they were - - -?---There didn’t appear to be a very active educational program when I was there.

Right.

COMMISSIONER WHITE: And when was that, Ms Mitchell? Was that in recent years?---It was, I think, March.

This year?---Yes.

Right. Thank you?---Can I just also say, though, that the superintendent at the facility was, at the time I visited, doing what he could to redevelop one area of the centre so that it would have recreational and other programs, and air conditioning, because none of the rest of the – or I think he was putting fans in, because none of the facility is air conditioned. So it’s a very difficult facility for kids regardless.

And we will examine that in due course, but I suppose for current purposes there is an – I suggest to you there is an importance to the proposition that a child in detention should at least share the perception that the education that they are getting is the same as - - -?---Yes, absolutely.

..... would lead to the same results?---I guess I made that point about the air conditioning – I mean, this goes to the children’s right to a good education, and what are the conditions needed to actually concentrate, do homework? And if – if it’s stiflingly hot, and all of those other conditions aren’t there, then it is really difficult for those young people.

Okay. Thank you. On that note, it might be a convenient time for the morning adjournment.

COMMISSIONER WHITE: Thank you. We will – the Commission will adjourn until 10 minutes to 12. Thank you.

ADJOURNED [11.31 am]

RESUMED [11.57 am]


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MR CALLAGHAN: Thank you, Commissioner.

Ms Mitchell, you’ve already addressed in part the Optional Protocol to the Convention against Torture, but I wanted to go back to that, because it really is quite important to the evidence that you can give to this Commission; is that correct?---Yes.

Is it on the basis of the work you’ve done around that, that you are really able to provide the Commission with some comment about the sufficiency of legislation and practices in the Northern Territory?---Yes, some preliminary comment. And just to note that I have a statutory obligation to report to Parliament, federal Parliament every year, and that I will be making, you know, a fulsome – the fulsome findings of that examination will be contained in that report.

And is the report for this year focusing really on - - -?---Primarily - - -

Primarily, on - - -?--- - - - on – yes, youth detention, and oversight, and our capacity to ratify and implement the optional protocol.

That’s right. Well, I suppose by way of introduction, can you tell us about the work that you’ve done preparing for that report, because there have been things like a survey done and that sort of thing. Can you just explain - - -?---Yes – yes.

- - - the basis for your opinions?---So in preparation for this examination I wrote to every Premier and Chief Minister indicating that I was going to proceed along these lines and asking for a contact in the relevant departments and agencies where I could obtain detailed information against a series of standard questions, and this went to how the system and the facility in particular – or facilities in particular – operate in terms of oversight. And – or – and – and – and used – I developed the questions by looking at what the conditions we need to meet to ratify OPCAT are. So I asked questions along those lines.

And you asked those questions around the country?---Yes, to every state and territory.

Including, of course, the Northern Territory?---Yes – yes.

And did you, in fact, seek some information from the Commissioner for Correctional Services for this purpose?---That’s right.

And can we have on the screen a letter that you sent on 22 March this year; is that correct?---Yes.

And from that we can ascertain the information that you sought for the purposes of your report?---That’s right. And attached to that letter is a long series of questions.

I tender that letter and attachments.


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COMMISSIONER WHITE: Exhibit 8 for the letter of the – whatever it was, something of - - -

MR CALLAGHAN: 22 March, I think.

COMMISSIONER WHITE: Thank you. 27 March.

EXHIBIT #8 LETTER DATED 22/03/2016

MR CALLAGHAN: And annexure 1 to your statement that’s already been tendered, I believe is the response; is that right?---Yes. Yes.

And annexure 2 is a table schedule of the department’s responses, is that correct?---Yes.

Thank you. Now, as part of your preparation we have already discussed this briefly, but you made visits to detention centres?---Yes. So while we were collecting as much information as we can from the source, as in the agencies themselves who administer juvenile justice in the states and territories, we also sought submissions from the key oversight bodies in those jurisdictions like Ombudsmen, and children’s commissioners. But also a non-government organisations who had an interest in the treatment and conditions of children in these places and also at the same time we looked at what was publicly available, you know, in terms of annual reports and websites. We did ask – along with these questions, as you will see, we asked jurisdictions to provide any pieces of legislation or policy guidances that would help us understand what the oversight arrangements and reporting – it’s not just oversight but it’s also reporting arrangements as well.

Right. And if we can just return to the visits that you made and - - -?---Yes.

- - - the fact that you did visit the Don Dale Youth Detention Centre, you spoke - - -?---Yes. We visited the centres, spoke to usually the manager or the superintendent, various staff who were running programs, educational and other programs, and also spoke to young people at the centre and asked the young people to complete a survey.

Right. Can I emphasise we are not at this point in proceedings conducting an intensive examination of the Don Dale Youth Detention Centre, but drawing upon the experiences that you had there, and the conversations that you had there, were you able to or are you able to identify potential breaches of relevant instruments that you have identified?---I didn’t go there for that purpose.

No. I suppose what I’m asking you to do is just – against the background of that visit, identify the types of things - - -?---Well.


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- - - that we are going to be concerned about when we are looking at the OPCAT?---Well, it was clear that use of isolation was routinely and frequently used and for very long periods of time, and that was confirmed by some of the young people and when I say frequently and routinely, you know, 23 hours a day for several weeks that some young people – and in the high security – in the maximum security area was of absolute concern and when I asked the young people how they felt in that environment, some of the words they said were “depressed”, “angry”, “sad”, “like a caged animal”. And if you go to that maximum security area you will understand why they feel like that.

All right. As you say, that – these are specific matters which can be addressed?---Yes. And, look, it’s also clear that the use of force was routinely used as a matter of normal conduct of the business of the organisation, not just in terms of from my – from what I could see and what I understood and not just when there was an incident or to overcome an incident.

I suppose, can we leave aside the specific experiences. But can I just ask you what might sound like an impossibly general question, but it’s on the issue of trust?---Yes.

And what can be done in terms of extracting information even from children who are affected in these sorts of situations?---I – one of the questions I asked the young people is would there be anything stopping them making a complaint or raising an issue. And while some of them said they would make a complaint and had – not many – many were concerned about retribution if they did by the staff there. And so were unwilling to do so and put themselves in that situation. Or being considered a snitch. Those were two – couple of big barriers as to why they wouldn’t raise an issue. And there were plenty of issues to raise in terms of the condition of the facility. So going back to the question of other human rights breaches, I just have to say the facility itself is old and ageing and things are broken and toilets are rusty, and as I said before there’s no air-conditioning. It’s very hot. There’s minimal air flow and there are these, you know, periods of extensive isolation and use of force. And I think all of those things are breaches of children’s rights.

All right. Can I take you to paragraph 129 of your statement. If I can get that on the screen. You write there that the Northern Territory system has some of the necessary elements but does not fully comply with the requirements and so on. Does not fully meet the standards as set out under the OPCAT. Can you elaborate on that, give us examples of how it’s not – how the Northern Territory system is not fully compliant?---Yes. The Northern Territory tends to rely on the children’s commissioner and the Ombudsman as the main independent bodies in terms of oversight. And they do have a level of functional – a level of functional independence you would require of an independent body. However, it’s not explicitly stated in the laws that establish them that they are allowed to have unfettered access to all areas – to all facilities, all areas of facilities and to all children and young people. Nor to all the information that the department or the facility might hold. And I think this is a pretty important aspect, this last bit, because it goes to things like registers of use of force, critical incidents, use of isolation. And it


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would be – and these things also are not required as far as I can tell to be made publicly available in any way. Or to be made accessible to those bodies. So for me that’s probably the biggest failing in that sense, that they don’t have routine access to that information. They might do in the conduct of an inquiry, but if we are talking about prevention we’re talking about routine access to this kind of information so that you can pick up patterns and systemic issues, and that those reports – reports on these – on these kinds of things are not made public.

And so if we are to stay within the body of your statement at paragraph 130, is what you have just said reflected in the first four bullet points in that paragraph?---Yes.

Which leaves us with the fifth bullet point there, and can we ask to you speak to that?---Yes. And this goes to the – one of the first questions you asked about what’s different about children and why do they need special protections. It’s really important that staff who have the care of children in these facilities understand their therapeutic needs, understand their backgrounds and understand child development generally. And in the case of the Northern Territory and many other states and territories, understand the cultural – the need for cultural safety of many of the young people. We know that in the Northern Territory nearly 100 per cent of clients in Don Dale and the other facilities are indigenous young people. So there is another layer of training and skill that staff require in this context. And the issue here is, too, that you can’t translate activities and management systems that work with adults to children; you really need specific skills. And you also need to recruit people who are motivated to care and support children and to uphold and safeguard their rights. So you do need very good screening and recruitment practices that are in place in many states and territories around the country and I’m sure the Northern Territory could benefit from looking more broadly at those other practices around the country and then you need initial training, but ongoing training, into how to manage and interact with these often highly traumatised young people. Another layer of that goes to having human rights education for both the staff at the centre and for the children and young people themselves.

Talking about skills to manage and interact with young people, I wonder if we can just go into a little more detail there. We read, I think, in the literature about the concept of de-escalation. Is that the sort of thing that we are talking about?---Yes. And de-escalating a situation that might be involving adults – it’s a very different set of skills than de-escalating a situation involving children and young people. As I said at the beginning, their brains are in a state of flux and change. It means they have got all sorts of things going on in terms of hormonal and other neural activity that needs to be understood if you are going to implement de-escalation techniques and that those de-escalation need to be non-violent. For two reasons. One you don’t want to traumatise already traumatised kids by ill-treatment, and violent treatment. And you also don’t want to normalise violence in their lives, that this is the only way you can involve anything, as well. And so – and you don’t want to make the situation worse and if you don’t understand what’s going on for children and how to de-escalate a situation that involves, you know, the adolescent brain, then you probably are going to make it worse and you are only going to fuel tension.


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All right. Accepting that - - -?---Could I also add too that many of these young people have health issues, including hearing problems and if these have gone on undetected often noncompliance with an order, you know, might be seen to be just that. When, in fact, they just can’t hear what people are saying.

You would identify a special need to address the question of hearing loss and - - -?---And other health conditions that may impact on a child’s ability to, you know, adhere to various rules or to do things at certain times.

Right?---Yes.

Accepting that you’ve got a report coming and not wishing to overtly be trying to scoop the content, are you able to give a comment as to how the Northern Territory compliance with what’s going to be required when introducing OPCAT compares with other states and the ACT?---Look, apart from what I just said about the oversight mechanisms which I think will need tweaking to be robust enough, so oversight and reporting obligations I think need to be much – more robust than they currently are. There are particular issues with the Northern Territory laws concerning the treatment of children in detention. In particular, the recent changes to the laws that expand the range of devices and in different circumstances that can be used to restrain children and young people. This has removed the description of these devices from the face of the legislation and provided, now, a discretion, I understand, in the Minister for Corrections, to use anything that they need to do for the good order of the facility and this has, you know – is quite problematic in terms of compliance with the kinds of standards that you would expect. Nor is there in that legislation – does there appear to be any regulatory arrangements to monitor how these devices get used or where they are listed so the public can see. So none of those things would be compliant with the standards expected.

And to your understanding, is there any similar problem in any other state or territory?---Some states and territories, yes. They had – they are silent on this issue and they need - - -

Same problem?--- - - - they need to specify it. Yes. However, they might have in policies and procedures safeguards and they need to be codified. That’s the answer.

Well, once it is ratified how would the OPCAT operate in practice as between the states and territories. There would be benefits, presumably?---Look. As I said before it’s preventative. It is not meant to be – it’s not a public process; it’s a behind the scenes process meant to help the standards in place all around the country and achieve greater consistency. So in that sense – and it’s about bringing all the states and territories together.

And sharing knowledge?---And sharing knowledge and information and practices. What works, what doesn’t. And evidence. A lot of – in many of these facilities for instance you’ve got rewards and points system for kids who are given rewards for behaving in a certain way and then things are taken away from them for behaving in


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a certain way and many of these don’t have an evidence base behind them and some people they consider it extremely unfair and up to the decision of the guards or the staff there and this creates hostility and a lack of trust within a centre. So using an evidentiary base, for instance, and it is an example about how we can get the best possible systems in place that actually work to influence behaviour over the longer term, not just then and there.

You may have already said or may have said in your statement, but when is your report due to be published?---It’s being transmitted to the Attorney-General on 17 October, this month, and I understand it will be tabled in Parliament in the first week of December.

All right. Just excuse me?---That could change, but that’s how I understand it.

COMMISSIONER WHITE: The time frame is after Parliament resumes. It’s, what, six sitting days after Parliament comes back?---Yes. It all works back. It could be tabled earlier but that’s up to the attorney. We have certainly planned a launch in December.

MR CALLAGHAN: Since we have – since it has been so central to your evidence, we should tender the optional protocol?---You also ask how it would work in Australia, and I think that’s yet to be decided. So one of the reasons I did the work is to look at who’s already operating this space and how we could utilise the information they collect and the activities they do, like visits to centres and taking of complaints and making reports, and how we could utilise that to come together in what is called a national preventative mechanism, which would be coordinated nationally, which would provide that vehicle for exchange and the lifting of standards over time. But it also would be a regular reporting function nationally, probably on a yearly basis as well as what’s going on in the various facilities around the country. And it would be co-operative with the states and territories, in a sense identifying what those mechanisms within their own jurisdictions, what they would – which ones would be best placed to be part of this national co-operative mechanism.

And benefit from each other’s knowledge and experience?---Yes. Yes.

On the screen there, we have the optional protocol; is that correct?---Yes. Yes. Yes.

I will tender a copy of that, your Honour.

COMMISSIONER WHITE: Exhibit 9 for the optional protocol. Thank you.

EXHIBIT #9 OPTIONAL PROTOCOL

MR CALLAGHAN: Can I just move away, slightly perhaps, only - - -


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COMMISSIONER WHITE: Mr Callaghan, I wonder if I could – unless you’re going to revisit this in your questions I was looking at the national frameworks from paragraph 78 and onwards in Ms Mitchell’s statement. If you’re coming to it, I won’t ask my questions.

MR CALLAGHAN: No. No. No, Commissioner, please, I was about to move into a different topic.

COMMISSIONER WHITE: Thank you. I thought it fitted into where the evidence was at this point. Could you just indicate how that national framework that you mentioned from paragraph 78 onwards in your statement, Ms Mitchell, how that actually works; who are the members; how it’s funded?---Yes, Commissioner. So the national framework for protecting Australia’s children has been operating since 2009. It brings together all states and territories concerned with the protection of children. And while the ministers around the table over the years have generally been ones responsible for child protection agencies within departments, the intention is that it’s a much broader – a broader framework and that it goes from early intervention and prevention through to tertiary responses to children at risk. And how it’s funded, it receives – it has a series of action plans associated with it and we are up to the third action plan and they are three-year plans. And under each of those, various strategies are agreed within – across the jurisdictions, and then resources are found in different ways to support those actions. So there has been a range of activities thus far, including the establishment of national out-of-home-care standards and the development of – and exchange of data about at-risk children. So that’s been quite important. And that has led to a standardising to some extent of the way different child protection agencies, at least, report on kids in their care. And it’s also expanded the range of information that’s available. So I think it is a valuable mechanism for making inroads into these federated systems sometimes. And I think one of the points I made here is we haven’t, although we have recognised – although it has been recognised in that framework that there is an interconnection between the trajectories of kids who are in the care system and in the juvenile justice system. There are a lot of cross-overs there and a lot of young people in the care system also end up in the juvenile justice system. There hasn’t been a lot of work on that intersection as yet, and I think there might be potential opportunity for that to happen. And while I say the child protection minister is there, it is meant to be broader than that. It covers health, education, and all of those, you know, broad areas. But we don’t have a minister for children and so, you know, we are reliant on having to go through these other portfolios to make things happen.

COMMISSIONER WHITE: That’s at the Commonwealth level, to organise it?---Yes. Yes.

And do they meet sort of occasionally or quite regularly?---Yes. It was part – it used to be – this framework used to be part of a COAG standing committee.


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Yes?---Which no longer exists. So it’s really up to the goodwill of the states and territory ministers to agree to keep meeting. They have so far. And the administrators meet a little more frequently.

Thank you, Mr Callaghan.

MR CALLAGHAN: I was actually going to take you to part of or a concept within that part of the statement to which you have been directed, namely at paragraph 82. And you talk about known interrelationships between child protection and juvenile justice systems that is clearly going to be a topic of interest to this Commission. Can you, perhaps, again, start with definitions. What do you mean by known interrelationships?---Well – well, if you – any population of young people in a juvenile justice setting who you did some in-depth analysis into their backgrounds, there would be a significant proportion who have had a care and protection report – substantiated care and protection reports about them, but also been in the care system. So they may have been removed from their families and are living with others in the community. So there will be a significant proportion of children in that situation. There is also, especially in terms of residential settings, so some – if for some young people who are unable to find community-based homes, they may end up in residential units and there is – often if they play up in those environments they – the police might be called and they might be escorted off to a juvenile justice facility. So there is just two ways that there is an interrelationship between the two systems.

And, again, we are talking in very general terms I know, but do you perceive shortcomings in the relationship between the two systems or to what should we be alert when looking at the relationship between the systems?---Well, I do think that there could be much greater interaction between those, but especially on the potential pathways into juvenile justice facilities, because frankly while we are looking at trying to improve the facilities so that it – so the kid’s rights aren’t breached while they are there and that they have opportunities in life that other children should have while they are there and that they are treated fairly and with respect and dignity, the best – the best solution is for them not to go there at all. But that means finding good alternatives in the community and not using juvenile detention as a welfare response. So we really need to be working hard to find alternatives in the community. Now, that doesn’t mean there are no consequences for your actions. You can still be supervised in the community. You can still have, you know, conditions placed on you. But being in a jail is not good for kids. In the end of the day it mostly entrenches criminal identities and associations and that’s not a good investment for mine in kids.

And this is, I think, a related concept: when we talk about diversion, how do you understand that term?---Well, diversion again can take many forms. It could be that the residential unit doesn’t pick up the phone to the police but picks up a phone to a community organisation or the person’s family, or in the first instance and tries to look for other solutions. It may be that we need more safe houses in the community so that people can – that there are alternatives to go to when a judge needs to make a


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decision about what happens to a child. But I really think the key to it is engaging the families of these young people, because there is not that many of them actually, engaging the families of these young people in how best to deal with particular behaviour and how to keep them safe and how to keep them well supervised.

Just to start to wind up on your evidence in response to questions from me at least, you have identified at the start of your statement a number of matters that you anticipate further submissions might be made on; is that correct?---Yes.

And the Commission, of course, will be grateful to hear that. But can I ask you about the concept of child empowerment, which is something that we read about and we have read about in the materials but which might be misinterpreted or at least given a connotation that doesn’t necessarily apply. When you speak to the empowerment of children, what do you mean?---Well, when I go to these kinds of facilities and when I talk to children generally, I let them know they have rights and that they always should feel comfortable to raise concerns and issues. And they should never be silenced. Because that’s when the abuses of their rights occur. And what I find is when you give children the knowledge that they have rights and that a country has signed on to the fact that they believe they – we believe they should all have rights, it’s very empowering for them in itself. And if they think – one of the main things the kids said in these centres that I visited in this project was that what they wanted was respect. So if you give respect, you give respect, and they get that. And I just have to say that that is so fundamental. If a young person feels that a worker listens to them, acknowledges what they have to say, and respects them, there will be a good relation between that worker and that young person and the young person will behave better. It’s – and in some centres that I have seen some very good practice in terms of leadership programs that they are running for the young people there, whereby they have regular conversations and dialogues with management about what concerns them and what could be fixed and the management actually responds to it. That’s about respect. And it’s also about giving them – empowering them to speak up and learning how to speak up in non-aggressive ways. And so – and another centre, one in WA, there are some young people there that have earned the right to have keys to their own units and also to go outside on programs where they play footy games against the local folk, etcetera. So these are kind of some of the very empowering things that you can do in these settings that actually build the capacity of kids and build their respect for others. And respect systems that they mightn’t have had before at all. But rights is the fundamental – understanding rights is the fundamental core to that whole respect system.

But that does not mean, does it - - -?---No. It does not mean getting your own way, as I tell the young people.

That’s the point I was trying to make?---Yes. It doesn’t mean getting your own way, it means you have the right to have a say about decisions that impact on you and if something is wrong you need to call it out and you should feel empowered to call it out. Yes.


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Commissioners, those are the only questions that I had of Ms Mitchell. I’m aware that there are other counsel who do wish to address some questions to her and although there hasn’t been .....

COMMISSIONER WHITE: Compliance with the Practice Guideline.

MR CALLAGHAN: I respectfully summit that Ms Mitchell is not one of the witnesses at this stage that we intend to recall and that to the extent that with respect to her she’s a resource that may be of use. If there are counsel who wish to direct questions to her relating to the very general matters on which she has been giving evidence, then that may be of some assistance.

COMMISSIONER WHITE: Right. Thank you.

MR CALLAGHAN: I don’t – Ms Brownhill and Mr Boulten are both making a dash.

MS BROWNHILL: .....

COMMISSIONER WHITE: Yes. I think the Solicitor-General might pip you at the post there. Thanks, Mr Boulten. Yes.

MS BROWNHILL: I just seek to ask Ms Mitchell some questions about the evidence she gave in relation to the education program being conducted at Don Dale. The reason I rise now to ask those questions is that the evidence Ms Mitchell gave might convey that the educational program being conducted at Don Dale Youth Detention Centre is substandard and inappropriate. It certainly is not and - - -

COMMISSIONER WHITE: Well, perhaps if you’re going to give evidence you might need to get into the witness box, Solicitor. So certainly develop that. I have no difficulty with you developing that with Ms Mitchell. Yes. And if in due course Northern Territory wants a witness to give evidence about the education system, of course that can be done.

MS BROWNHILL: We certainly will be doing that in due course. Yes.

COMMISSIONER WHITE: Good. Thank you. Yes.

<CROSS-EXAMINATION BY MS BROWNHILL [12.34 pm]

MS BROWNHILL: Ms Mitchell, you mentioned a visit you made to the Don Dale Youth Detention Centre in you said perhaps March of this year. Could it have been on 30 May this year?---It could be. It could have been May. Yes. It could have been May.

.ROYAL COMMISSION 20161011 P-36 M. MITCHELL XXN©Commonwealth of Australia Transcript in Confidence MS BROWN-HILL

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And it was a visit that took place, I think, in the afternoon of that day?---Yes.

And that’s the only visit you have made to the Don Dale Youth Detention Centre, as I understand it?---That’s right. Yes.

You mentioned that in other states the education program at youth detention centres is run by the Department of Education. Are you aware that that’s the case in the Northern Territory as well?---I wasn’t entirely clear what the situation was in the Northern Territory and I wasn’t there to visit the education program.

Right. So you wouldn’t be aware, I take it from that that answer, that the education program is run in accordance with the Australian curriculum?---If that is the case – all I would – was commenting on is what the kids said. Yes.

All right. Well, you also made some comments, I think the first comment you made was to the effect that you didn’t see much in the way of an education program going on. I take it that’s because you weren’t there to look at education programs or to - - -?---Well, I was shown the – where the education programs happen, the room, the rooms that they were conducted in. But nothing was happening at the time.

Okay. Of course you can’t conclude from that there was no education program going on?---No. And I didn’t say that, I just said from my perspective on that day – and it wasn’t while I was there so I can’t make any definitive statements about the education program. All I can report is what the kids said to me.

Okay. Well the other thing you mentioned was the state of air-conditioning of the classrooms and it was your observation that those classrooms weren’t air-conditioned?---Certainly the one in the maximum security area didn’t appear to be.

Well, if I suggested to you that the classrooms are air-conditioned and the air-conditioning is certainly on when the children are in there undertaking their education - - -?---Does that include in the maximum security area?

The classrooms that I’m referring to are the classrooms that the general population undertake their education in. In addition I’m referring to other areas where individualised learning goes on in a one-on-one situation for reasons, including security?---There was no air-conditioning in high security area at all.

Well perhaps we might have to leave it at that, given we will call some further evidence about that in due course?---Maybe it wasn’t turned on. I don’t know. But certainly there was no air-conditioning in that area.

I just – sorry to keep harping on this, but you said maybe it wasn’t turned on. You then said there was no air-conditioning. What’s the basis for the statement that there was no air-conditioning?---Well, I didn’t see any air-conditioning units. So if I saw some in – I’m talking about the maximum security area – I have missed it.

.ROYAL COMMISSION 20161011 P-37 M. MITCHELL XXN©Commonwealth of Australia Transcript in Confidence MS BROWN-HILL

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It’s possible that you might have missed it?---I might have missed it. It was really hot and stifling. So there was no evidence to me that there was any air-conditioning. And people made the comment, and the kids made the comment, that there was no air-conditioning as well.

Was there learning going on in that - - -?---No.

- - - particular facility at that time?---No.

Okay. All right?---There were empty desks.

Okay. Just excuse me for a moment. Thank you, Ms Mitchell. Commissioners, the other matter that I – evidence given by Ms Mitchell that we didn’t – it wasn’t set out in her witness statement in any detail and it raises some serious concerns in relation to the statements she made about periods of extensive isolation and use of force and so on. I don’t propose to address any questions to Ms Mitchell at this time because those matters raised complex issues of law and fact which really need to be dealt with in a particular specific context and so we will address those in due course.

COMMISSIONER WHITE: Yes. I understand that. And I think that we probably all understood that there will be what I’m going to call better evidence; that is, more particular evidence about those issues from subsequent witnesses. So the opportunity to establish as an objective fact will arise later.

MS BROWNHILL: Thank you, Commissioners.

COMMISSIONER WHITE: Mr Boulten.

<CROSS-EXAMINATION BY MR BOULTEN [12.40 pm]

MR BOLTON: Commissioners, I have some specific questions about aspects of Ms Mitchell’s witness statement and in particular the report which is referred to as paragraph 15 of your statement, Ms Mitchell, concerning the research paper that was commissioned and released by the Australian children’s commissioners and guardians group of which you are a member?---Yes. I am.

In that report on page 7 there is a table showing the raw statistics and you state that on any night last year there were 480 Aboriginal and Torres Strait Islander young people in detention in Australia. And we can see that 41 of those would have been here in the Northern Territory, constituting something like 16.68 per 10,000 people, the highest rate in Australia by a long way. You talk in – or this research paper deals with issues about pre-trial detention and the number of young people who are held in detention in the Northern Territory and in other states and territories before they are actually found guilty and sentenced for offending. And you have just spoken about the need to work hard for options in the community. Can I just ask you about pre-

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trial bail placements and pre – and post-release placements for Aboriginal young people and children who come from remote areas. What challenges are there for a system in the Northern Territory for those sorts of children and young people?---Well, you are correct. This is a problem all around Australia: the number of children in remand. I think it’s something around – I have got to check this, but I think it’s about 54 per cent of young people in detention are actually on remand so they haven’t been sentenced. And they are not routinely separated from kids who aren’t on remand or who have been sentenced, which is actually another provision of the convention of the rights of the child, so that they don’t form those associations and they don’t form those identities. That’s what that provision is for, and they are not put at additional risk, as is the provision to be separated from adults. So, yes, you are quite correct. That the – ensuring that at the time of charging a young person and making decisions about their – where they will reside, whether it’s in a detention facility or somewhere else, we really do need to be exploring additional options for young people because it is – as I said before, it is not in their – it’s not in their interest to actually go to a detention setting. So that goes from everything from the sentencing options that are available and that includes reviewing what the mandatory sentencing provisions are in relation to juveniles at the moment to things like accommodation in the community that could be an alternative either with a – with family or in another setting that might be some sort of residential facility. Again, and also a bail house as well. A bail house options as well.

So do you see scope for community-based Aboriginal community run - - -?---Absolutely.

- - - elders looking after young people - - -?---Absolutely. I think those are exactly the kind of models that we need. You need good accountability structures around them, but I’m sure if those organisations would be able to satisfy the requirements needed to keep the community safe and to keep those children safe.

The prior bureau of crime statistics in New South Wales show there are a very large number of people being held in custody for that state for breaches of what is called administration of the law problems, so not complying with curfews, not reporting to the police when required, these sorts of issues are leading people to jail. Presumably much the same in juvenile detention throughout Australia?---Well, and juveniles often when at the time that they are being sentenced or they are having these conditions imposed on them, they are not necessarily comprehending exactly what it is that they need to do. And if they don’t have a good support structure around them, a good supervision around them, that isn’t reinforced either with them. So for teenagers to say, well, I will stay, I won’t go out after 11 and I won’t meet with Johnny down the road and, that was condition number 52 of this long list of conditions, I recall that now. That’s not how they operate. So – so we are just feeding the jail system by including these administrative breaches in a suite of provisions that you can be re-jailed for. And you could consider them as a different type of offence. So you’re not re-offending, you’re offending against one of these breaches – these conditions. And so you might be able to separate those out, those


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administrative breaches out and look at whether we can prevent the re-incarceration as a result of those breaches.

And would one way to address those problems be culturally specific bodies or tribunals or circles of people requiring discipline from the offender?---Some states and territories have Koori courts now, and I think that’s a very good model, and it is worthwhile looking at those states and territories that do that. I think Victoria and Queensland and New South Wales now is trialling one. But in general these have the kinds of attributes that you are talking about. They are much less of a court-based environment and more of a family conferencing kind of situation or a tribunal situation where the community is engaged with the decision making. Not only about what happens to the kid, but where they live, who is accountable for them. And I absolutely think that that is the kind of solution we need for these young people.

In counsel assisting’s opening this morning he highlighted the fact the fact that 63 per cent of the modest budget spent on youth justice services in this territory was spent on the detention of young people. Have you got a view about the utility of some of that money being reinvested in non-custodial outcomes?---That and other money. You know. It is expensive to run institutions and, you know, for children because of the additional duties of care it’s even more expensive. I don’t think it’s a great investment in our kids. I think we could be spending resources in other ways that would give them a much better chance at life and build a safer community at the end of the day as well.

How much need is there to coordinate both care and protection responsibilities of the state with the juvenile justice responsibility of the state when dealing with kids who find themselves in trouble with the law who are wards of the state, to use an old-fashioned term?---Yes. It’s silly for one parent to pass it on to another substitute – one substitute parent to pass a child on to another substitute parent when you are not really dealing with the welfare needs of that child as a whole. And it’s just also a cost shifting exercise as well. Really those parties need to be getting together as does the health system, the disability system, the housing system, to be looking at a holistic response and response and intervention for these kids that are at risk.

The Northern Territory has comprehensive laws about youth detention. It has regulations that deal with issues like the use of force in detention, the use of devices to restrain people in detention, oversight of kids in detention. But you spoke of respect. How can the laws be better complied with by encouraging respect? What mechanisms can you point to increase this respectfulness in the youth justice system?---Well, I do think that greater oversight – more robust oversight can help in that regard. I know you – there is oversight in this Territory. But it is divided between a number of different bodies. There is a bit of confusion about who does what, and that’s not uncommon across the country as well. And certainly the reporting obligations and the access to all the information that those bodies would need is not clear at all. And I – and I personally think there needs to be a level of public accountability and that also brings pressure on the system to reform itself. So I do think oversight and improved oversight, especially transparency, will assist in


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having that broader public conversation. Obviously this Commission of inquiry is a great opportunity to start to think about how we can inject a system of respect for kids into the juvenile justice system and I think also we can learn from other states and territories who are moving down that path and there’s lots of good practice to be had. And probably here as well. So I think – I think this is a great opportunity through – and through OPCAT in particular to bring everyone together so that those conversations happen normally. You know, that’s the normal thing to do, is to talk about how can we improve – continue to improve the conditions for kids so that, you know, that they get every opportunity in life. I mean, they’re not – you know, they – we still need to keep the community safe but how can we also keep our children safe as well.

What’s your view about the need for an independent inspector of youth detention facilities in the Northern Territory?---Well there are bodies at the moment who can do that and it may be that the government wants to look at using – utilising one or more of those bodies to fulfil such a role. But obviously we need some independent level of an inspection. So the community visitors, the official visitors in this state, I understand, are appointed by the Minister for Corrections and so they don’t really have the functional independence that you would want of a visiting body. I know the Northern Territory Children’s Commission does visit on a regular basis, but it isn’t in the face of her powers. So we do need to have that sorted, I think. The other thing that children have said to me was sometimes they find too many people coming into the centres confusing. They would like less people more often and really for a child they really need to know the people’s names. So they can get on the phone any time they like. So I think there’s also a chance – a potential opportunity for rationalisation in that question that you asked. Yes.

Thank you, Commissioners.

COMMISSIONER WHITE: Thanks Mr Bolton. Mr O’Brien, do you wish to ask some questions?

<CROSS-EXAMINATION BY MR O’BRIEN [12.53 pm]

MR O’BRIEN: Yes. Very briefly, if I may.

COMMISSIONER WHITE: Of course.

MR O’BRIEN: Good afternoon. My name is O’Brien and I represent [Redacted] in these proceedings. You were asked a series of questions by counsel assisting and senior counsel assisting and also by the Commissioner in relation to ensuring human rights standards and, using another word, enforceability measures between detention centres. And you said a range of issues were important. You said making sure that complaint mechanisms were clear and available and access to lawyers. You mentioned well trained staff, well recruited staff was important. You mentioned

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access to family members and visitation was important. There was a great deal of discussion also about education issues. Do you remember those series of questions and answers?---I do. I do. Yes.

Would you agree, though, that the overarching and most important feature is that juvenile detention be as limited in duration as it possibly can be?---That’s the key principle on the convention of the rights of the child; that detention be for the shortest possible duration and used as a last resort.

When we talk about then complaint mechanisms and you talked at some – with some detail about what you have been told even in Don Dale in recent times about retribution, I take it what you’re saying then is that children are being either prohibited or in some way hindered, or even encouraged against making complaints because staff threats of retribution. Is that your evidence?---That was the feeling of the children. Yes.

So children spoke to you as late as March of this year, that they would be - - -?---Sorry, May. I – I – I – I’ve had the record corrected. It was May. I visited a lot of these centres, and I can’t remember which one I visited in what order. So, yes.

Thank you very much. So as recently as May 2016 you have been told that children are fearful of retribution from staff?---Some children, not all children. Some children.

Children that you spoke to - - -?---Yes. Some of them, not all of them. Yes.

- - - have concerns that if they make a complaint about the way in which they’re treated, in relation to the violation of their human rights, that they may suffer retribution at the hands of staff?---They will be punished.

Did they say how that might happen?---Look, it could – they didn’t – they didn’t, on the whole but, you know, they might have things denied to them or they might be put back in isolation. Those are the kinds of things that they alluded to – or kept longer there. The kind things they alluded to.

Did they mention staff members by name to you or your staff?---No – no. Could I come back to you on that? There might have been – but I’m not sure which centre. But wherever somebody was mentioned I went back to the superintendent or the manager and I raised it with them at the time, and I can’t recall whether anybody in Don Dale did. Yes.

And if there were such people in Don Dale you would be able to bring those names to the – to those assisting the Commission?---I would have to ask for advice about that. Yes.

In other words you’ve got the names, if there were names given, and you can provide them if necessary, if it would be of assistance?---If I get advice to that affect.


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Thank you. You mention in your evidence also the issue of evidence based practices in Australia in terms of rehabilitation of young people, reducing recidivism and indeed preventing incarceration in the first place. Are you aware of any evidence practices in Australia or internationally that have been implemented?---Yes. Look, there are programs that have been implemented in various states and territories. The extent to which they are based on evidence, it’s patchy. But, you know, there’s – within detention centres there are programs like CHART which is, you know, in place in a few centres around the place, and there are similar things like that which allow kids to reflect on their behaviour, their past, allow them to chart a course for different behaviours and over a period of time. But it involves intensive case management with those young people, and it doesn’t – some of these things don’t work with all kids, so you need to do a very thorough assessment of the young person’s situation, their background, and where – and their position in terms of whether they are ready to take on a program like that. So it’s not just a matter of saying, “This is a great program, let’s do it everywhere”, it’s more nuanced that that.

So I take it from your answer that it’s fairly resource intensive to engage in these evidence-based practices to develop and fine tune .....?---No – yes, look, yes and no. But without doing these kinds of things, and having a calm well-structured environment and program and programs, you end up with riots and – you know, disquiet, and kids fighting each other. So, I mean, actually they’re an investment in – in – in the good order of the centre, if you get them right.

That last question in relation to resources was perhaps a blind guess by me as to why it is that we are not engaging in evidence based practices in relation to measuring outcomes in the juvenile justice systems. Do you have an answer for that?---There are many areas of child welfare and child wellbeing that we are not doing that. It’s not just in this area. So I think we’ve got a long way to go as a country to really focus on these things, but it’s where I would wish we would go in many areas, especially for vulnerable kids, and partly that may be because we don’t have a charter of rights and so the Convention on the Rights of the Child hasn’t been, you know, a primary focus of people’s thinking. And it needs to be, in order to then focus our minds on what will work and in what situations, and what we measure about kids – what we measure about their wellbeing, their treatment, and what’s happening to them in society. All of these things are important in order to start people thinking, “Actually, we’ve signed up to all these promises to kids: to keep them safe, to foster their wellbeing, regardless of where they are, and we need to make good on those promises.”

Thank you. Just to pick up, lastly, on that answer and particularly in relation to vulnerable children. You gave evidence about the importance of properly training youth workers within detention centres. I wondered if you had a view about the importance of training in understanding of trauma and the impact of trauma on a child’s behaviour. Is that something you would consider important or even vital?---Absolutely. I think I made the point that many of these young people, in fact the vast majority of these young people in juvenile settings, have had significant – you could call it trauma in their lives, and adverse circumstances. They have often


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been in families where there’s mental health and substance abuse issues, where there is domestic violence, and that’s kind of normalised in their lives, where there’s sometimes a lack of, you know, supervision, and there has been tenuous attachment to the school system and other health and community services. And all of this has in many cases compromised their healthy brain development. So they already come into the system, and into a facility like that, with significant trauma in terms of their emotions, the capacity to self regulate but also their brain development. And therefore they need very specialist expertise to help – and a therapeutic response to help them recover from some of that, but also to put them on a different trajectory in life.

Of course, not only – you would agree, I think, can trauma affect the way a child behaves and their impulsivity, and their brain development, but the use of violence and use of force can retraumatise children, can’t it?---Indeed. That’s why we have got to be very careful how you interact with children, and it’s why I was saying there’s different techniques for managing and interacting with adults. But adults who are traumatised will – who have significant trauma in their backgrounds will experience the same traumatic events if they’re, you know, reabused. As we all would.

Do you have a view on this…?

COMMISSIONER WHITE: Can I just interrupt you Mr O’Brien. Many more questions?

MR O’BRIEN: One last question, if I could just test your patience.

COMMISSIONER WHITE: Of course.

MR O’BRIEN: Do you have a view on this proposition: if we tackled children’s problems when they were younger more effectively, could detention centres be obsolete in the future?---Probably.

Can you expand on that?---Look, there is quite a discussion about this issue, whether there is a need for, you know, there are particular individuals in society who commit such crimes regardless of their age that there may need to be secure facilities. But, you know, for these very rare individuals. But on the whole, yes, most of these – the characteristics, the risk factor, the predisposed young people to a pathway into the justice systems is pretty evident very early in life and, you know, and early childhood educators can say – can point to the little boy in the class and say, I know where that kid’s going. And so I really do think, you know, if we know what these risk factors are – and they are often multi-factoral, and we can work with those young people and their families, without the threat of removal of children or carting a kid off to jail or a family member or to jail, I think we would be in a much better position to ensure that young people didn’t end up in the juvenile justice system in the first place.

Thank you very much. Thank you Commissioners.


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COMMISSIONER WHITE: Thank you Mr O’Brien. Mr Callaghan did you want to ask any wrap up questions of Ms Mitchell. I’m conscious of the time but also I expect you’ve got other places that you need to be rather than coming back here this afternoon.

MR CALLAGHAN: I have no further questions. Thank you, Commissioner.

MR LAWRENCE: Sorry Commissioners but I did want to ask some questions.

COMMISSIONER WHITE: I’m sorry Mr Lawrence, I didn’t even see you waiting in the wings. Do you think you could accomplish that reasonably briskly?

MR LAWRENCE: I’m just wondering is the witness on a plane this afternoon, have you got a flight?---No, the witness has to go on the 10 to 1 flight am.

MR LAWRENCE: It would bite into the lunch hour, if I can use that.

COMMISSIONER WHITE: All right, then. I think I suspect it might be convenient then if we - - -

MR LAWRENCE: Yes, your Honour.

COMMISSIONER WHITE: If we came back. Can I ask you in the interest of other witnesses who are lined up for this afternoon, how long you might be with your questioning, and does anyone else wish to ask some questions?

MR LAWRENCE: 15 minutes.

COMMISSIONER WHITE: Thank you. Anyone else? All right. Thank you.

MR LAWRENCE: Thank you.

COMMISSIONER WHITE: Can we adjourn then until 2 o’clock, please.

ADJOURNED [1.06 pm]

RESUMED [2.01 pm]

<CROSS-EXAMINATION BY MR LAWRENCE [2.02 pm]

MR LAWRENCE: Yes. Thank you for your patience, Ms Mitchell. As you are probably aware, my name is Lawrence and I represent the juvenile [Redacted]. He’s 16, and he was 14 when he was in Don Dale. Now, I understand you

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have been the National Children’s Commissioner, which is part of the Australian Human Rights Commission, since 2013?---Yes.

And so about – just over three years?---Just over three years.

And prior to that I understand that you were the Commissioner for Children in NSW New South Wales?---Yes.

How long were you that?---Three years.

Three years. And am I correct in saying that, prior to that, you held the equivalent position in the ACT?---In the ACT I was the – I administered the Juvenile Justice (Care and Protection) system.

Right?---So I had oversight, including other things, over one of the – well, the only detention centre there.

Right. I said equivalent position. Is that as close to being a Children’s Commissioner that the ACT - - -?---No, it was an administrator. Public servant in the ACT government, overseeing the child protection and juvenile justice systems.

So you were directly involved in the area that this Royal Commission is looking at - - -?---Yes.

- - - up here in the Northern Territory. And how long were you in that position, please?---I was in that position for about four years. Yes.

Four years. Now, presumably – certainly in that position you would have visited the detention centre that the ACT had for juveniles?---Yes, several times.

Certainly. And would it be also the same when you were the Commissioner for Children in New South Wales? Did you ever visit detention centres for - - -?---I did – I did visit a few detention centres for New South Wales during that time there.

And can I ask you when was the first time you visited a juvenile centre in the Northern Territory?---Quite early on in my role. So it possibly was the first year in 2013. I went on a listening tour to talk to children and young people and their advocates around the country, and I visited what was then the secure – a small secure facility in Darwin that I don’t think is operating anymore as such.

All right. Small secure facility in Darwin for kids?---Yes.

In Darwin?---Yes.

In 2013?---Yes, I would have to check the evidence.


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No. That’s all right. I think the evidence will tell us all that that would have been the original Don Dale back then?---No, it wasn’t a Don Dale. It was a secure unit, and I know the next witness, Howard Bath, might be able to clarify this for me, what that unit was.

So are you saying you don’t believe it was the original Don Dale?---No – no – no – no.

So it’s the case you have never been to the original Don Dale?---I haven’t, no – no.

Now that was – was that the one and only time you had visited a detention centre, if that’s what it was, in the Northern Territory prior to May of this year?---Yes.

Right. And you were up here in May of this year. Was it a coincidence, or was it related that you were up here at that time following up the aspect of the Optional Protocol to the Convention against Torture?---It was related to that work that I was doing.

So if I could just ask you a few questions to clarify for myself, if no one else, on that. Were you on a tour, if you like, at that time of this year of all the states and territories to check out the feasibility, viability of Australia perhaps ratifying that protocol?---That’s right. And so every state and territory agreed to allow me access to visit the – a facility and I also wanted to talk to young people. That was kind of part of the key of it as well. Ensuring that they were part of the conversation.

All right. And just to go back to the Geneva nexus, were you going around each state and territory checking out the relevant departments to see what the prospects could be for Australia ratifying the convention. Would that be fair?---Yes. In part – that was part of the work, yes.

And I just want to ask you about international law, or an aspect. Australia signed this convention, correct?---Yes.

Along with a large number of other countries?---Yes.

But Australia has not ratified it?---That’s correct.

Unlike a large number of other countries?---A number of other countries.

And one of the consequences of Australia ratifying it could very well provide what was being put to you earlier by Mr O’Brien, I think, about creating an independent examiner or investigator of a detention centre in the Northern Territory. Would that be correct?---Yes. There would be – need to be somebody who could perform that function according to the requirements of that protocol.

Yes?---And it could be a number of people. It doesn’t have to be one person, it could be a – combined efforts of different players as well.


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Well, correct me if I am wrong, my understanding is that if we ratify this convention that exposes Australia, and each state and each territory in Australia, to being visited without notice from a committee of people who are – similarly signed and ratified that convention. So that they could basically check us out and see if we are complying with the international standards and indeed that convention?---Yes. That’s the implication. Although, having said that, the visits would be reasonably infrequent.

Right. But it would – well, frequency aside, would you agree that it would certainly provide a similarly independent body to come and check on the Northern Territory or Victoria or Tasmania?---Yes. And noting they would need to cover all places of detention, not just juvenile facilities. So, you know – that’s what I’m saying it would be infrequent, probably, in the reality of it. But, yes, they would come, they would – they would examine what we had in place, they would make recommendations to both the national coordinating mechanism – this national preventative mechanism – but also to individual – and through them to individual jurisdictions about how they might improve their practice, their oversight, or other things as well.

And as the National Commissioner for Children, including the experience that you’ve had up to date with the ACT and your role in New South Wales, you are supportive of Australia ratifying that convention?---Yes. I believe it will lift the standards generally and provide greater consistency across our nation.

And protect the interests of they who can’t, which are the children?---Yes – yes.

And Australia hasn’t ratified that?---Not yet.

And Australia, I believe, has had the opportunity to ratify it in the past?---It – when it first became a signatory to the protocol there was some activity, I understand – back in 2009 – there was some activity among the states and territories at the time and the Commonwealth to review what the opportunities were and for various reasons, including I think many elections since then, and changes of government, I think that has been the main spanner in the works really in terms of the appetite to ratify.

The appetite?---Yes.

The political appetite?---Yes – yes.

Can you enlighten us, please, as to what the reality is. How does Australia mechanically, constitutionally, politically – call it what you like, how does Australia actually ratify that. What is the process?---Look, I have to – I would be fair to say that I don’t know the intimate details of the process, but should we decide – intimate details of the process but should we decide to ratify it, the Commonwealth government would need to get agreement with all the states and territories.

Every one?---That’s my understanding.


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All right. Now, would that have been taken on board by – was that part of your tour that I’ve described earlier, as you were going through each state and territory, to see what the prospects were for each state to be agreeable to the federal government signing off?---We certainly – we had a series of roundtables with experts, both from within and without government. So we certainly canvassed those ideas as to what it might mean for particular states and territories and whether that would be something that there would be issues with. And in general people were very supportive of it.

In general?---But I didn’t ask that specific – you know, I’m not a political player. I didn’t ask that specific question of the government – each of the governments.

Right. But it is the case, is it not, that before any federal government, whether it’s Labor, Liberal, Greens, ratifies this convention, they would have to have the support of each state and territory?---Yes, they would. Yes.

And that has been ventilated previously, and it didn’t happen for a combination of reasons you’ve told us about?---Yes.

Can I suggest to you that the prospect realistically of this country ratifying that are poor; would you agree with that?---No. I wouldn’t, actually. I actually think having done this work that – as I said, there’s a lot of parts of the infrastructure needed already in place. It’s a matter of – really, of coordination. And because it’s a preventive mechanism and it – and it really lends itself to a kind of progressive realisation approach in that, you know, we can progressively implement the kinds of changes we need over a period of time, and continue to improve. It’s not something that you ever stop improving on. I actually think the signs are reasonably good.

Well, wouldn’t it be the case that if the federal government was keen on it, if they were told by, say, the Attorney-General for the Northern Territory, say it was a Mr Elferink, our previous Attorney-General, that he disagreed with the United Nations prying into our ways. That would be the end of it, wouldn’t it?---Look, I haven’t – I’m not privy to any conversations that were had between ministers of the federal government and ministers of the state and – the states and territories. So I really don’t know what that conversation has been, and I can’t really comment. However, I can say that when I – I have recommended that Australia accede or ratify to this protocol since I first started in my role, and I put it in every report since, and last year I was informed by the Attorney that the matter was – or the Attorney-General’s department, that the matter was under active consideration. So I do think it’s a live issue at the moment.

You think there is a prospect?---I do. But I’m a – I’m a glass half full kind of girl.

All right. Can you tell us – I should know this, but when did we actually sign the convention?---2009.

All right?---And we do have, then, three years to put the arrangements in place that would meet the requirements. And further some jurisdictions – and I note Germany


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is one of these – has adopted very much a – who has a state, provincial kind of arrangement akin – a little akin to ours, has actually signed – ratified to the extent that some of the states and territories can comply and others – or their equivalent, and others – and they have committed to others to over time. So there are different models of approaching this particular protocol.

When you did come up to visit Don Dale, I just want to clarify this for everybody, including my client, who as I said earlier was in Don Dale – the first Don Dale in 2014, when he was 14?---Is that the one next door to the current one?

Yes?---I know .....

So when you have been giving your evidence today, before the Commissioners, about visiting Don Dale - - -?---Yes.

On 31 May – I think it was 31 May this year, you are calling it Don Dale. That actually was the previous adult male prison?---That’s right, in – yes.

Known up here as Berrimah Jail. And that was the derelict male prison; correct?---Yes, that’s the one.

Which had been reopened by the previous government - - -?---Yes.

- - - to place therein the juveniles from the original Don Dale, which they chose not to upgrade. Are you aware of that?---Yes, I’ve heard that - - -

MR HARRIS: ..... I would like to raise an objection. There is three barrels to that question, and the witness couldn’t possibly give a meaningful answer even at a general level, because built into it is a proposition about what was said or not said, or done or not done, by the government. With respect, a question like that is unhelpful whatever the answer is.

COMMISSIONER WHITE: I’m not sure that the witness is really in any way able to answer those sorts of detailed questions, but she will tell us. Perhaps you break it down, Mr Lawrence.

THE WITNESS: I was aware that it was the previous maximum security adult jail.

MR LAWRENCE: And that was - - -?---Yes.

All right. We will leave it at that. That’s fine. Which you had never been to before, obviously. And you came up in May. And how long were you there?---I was there for a few hours.

Who were you with?---Some other staff from the Human Rights Commission.


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Right?---And some people from – look, I would have to go back and work out who came - - -

That’s all right?---And we were escorted in part around the facility by the then-superintendent.

Right?---And we met various people there.

Okay?---Yes. But I could – I could get that for the record about who was actually there on the day.

If I got your evidence wrong, Ms Mitchell, but having seen that place you were far from impressed?---It was a difficult environment for children to be in, in my opinion.

And you have given – you have described aspects of that: the heat, the lack of air-conditioning – whether there was one or not is another matter, but it was stifling hot, I think you said?---Especially in the – in the high security area.

And the high security area – were you aware that the high security area of the Don Dale Youth Detention Centre was previous to that the maximum security unit when it was the adult male prison?---It did have that look and feel, I have to say. And that’s, again, just my opinion.

And kids were being kept in there?---They were. They were living in there.

And as far as you were concerned that wasn’t satisfactory as the national Children’s Commissioner?---I didn’t think those conditions were appropriate for children.

And you received from the children that you were able to see and listen to aspects which were issues concerning things like trust, I think you were speaking about earlier?---Yes.

And also you considered there was issues concerning isolation?---Yes. That’s what some of the children said and in fact some of the staff said as well. So - - -

And you understood from your visit, and your observations, that in that Don Dale institution in May of this year, there was a regime that included isolation for those children?---It appeared that way to me.

And you understood from the information that you picked up that it was sometimes of long periods of isolation?---Yes.

MS BROWNHILL: Well, Commissioners, the proposal was, as I understood it, that there would be detailed evidence about matters like this in due course.

COMMISSIONER WHITE: Ms Brownhill, that’s correct, and this is really the value of the evidence is already being limited by Ms Mitchell by saying this is what


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some of the children told me. It’s not a question really that has much evidentiary weight in that sense. I don’t think you should be troubled about that at all. Ms Mitchell is just recounting what she was told by these children. But I think that we are not using this evidence as the evidence about those things objectively.

MS BROWNHILL: Understood, Commissioner.

COMMISSIONER WHITE: Thank you, Mr Lawrence.

MR LAWRENCE: And I would be suggesting there is direct evidence on this issue.

COMMISSIONER WHITE: No. And it’s been – Ms Mitchell has been very careful to say this is what was told to me by some children, Mr Lawrence, and I think that, you know, you really wouldn’t be gaining too much by pushing this line of questioning, quite frankly, because it is not helpful to us.

MR LAWRENCE: Go back to 31 May, Ms Mitchell, and what you saw and heard and observed in your position. With your experience over all those years. Now, you had visited detention centres in Victoria?---Yes.

Queensland?---I visited in Queensland the adult facility housing 17-year-olds – an adult facility housing 17-year-olds.

The ACT?---Yes.

Anywhere else, South Australia?---Yes. Everywhere else.

Everyone else. Had you come across a detention centre for children that had as many problems that you saw in May of this year up here in Darwin?---It’s really difficult to answer that question because, you know, I was specifically there to understand the oversight arrangements and talk to the children, and observe, you know, generally observe, you know, how the kids were – you know, living there. But that wasn’t the main purpose. I would say it’s a harsh environment for children and not one I thought was appropriate for them. I did note that the superintendent there at the time, and others at the centre, were trying to put in place additional recreational programs and activities. I’m not – and refurbish an area of the centre. It is an old, ageing – it is an ageing facility; it’s not a great – pleasant environment. But they were trying to do something to make it better for the young people there. I’m not sure whether that has in fact opened, but I know the young people – many of the young people were quite excited about that. So that was a positive. And it was very hard for me in my three hour visit to make conclusions about which ones are worse than others because I might be shown all the nice places of the centre and I might be given all the really well-behaved kids in one centre and not in another. So I didn’t have any control over those things. But certainly the conditions were harsh and that – in particular the high security area was, I think, very challenging and I think problem – a problematic environment for children, and I also really did believe that there was – there was not sufficient programs and activities for the kids to do.


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And that came out of their own mouths as well. And also they didn’t feel – the kids, many of them were quite distressed by some of the treatment that - - -

Was it quite apparent to you that there was a relationship if anything, of hostility between the children and the guards?---Some of them. Not all of them. One of the questions I asked in a bit of an open workshop was about what makes a good quality officer, that, you know, or person you can work with and what – and out of that discussion were some comments about some of the relationships that weren’t particularly good in the centre.

In all your experience are aware, can you tell this Royal Commission of Inquiry whether there is any other state or territory that’s placed juveniles in a former adult prison?---I couldn’t answer that question. Obviously in Queensland there were a number of 17-year-olds in an adult facility.

COMMISSIONER WHITE: But that was – that’s a policy across the board policy decision that they were to be treated as adults, in Queensland, as I understand it?---Yes. But it’s since announced that that’s going to change. So I’m happy about that. But – and I must say that adult – that the children in an adult facility in Queensland, that was a very confronting environment as well with very limited things for the kids to do.

MR LAWRENCE: Well, what do you think of the proposition that it’s just untenable for any government in any state or territory for this country in 2016 to put kids into a former adult prison?---I think it’s highly undesirable, unless you can make it look, feel, and operate differently than it does.

The issues, then, you have told us about – you have seen a lot of these other facilities, detention centres elsewhere. Have you visited the one in Victoria?---Parkville?

There is a couple, actually?---There is a few. I went to Parkville this time around. Yes.

I know you were at – I know you were loath to pinpoint when counsel assisting was trying to extract from you some assistance for this Commission of Inquiry, but I’m going to have another crack. How does Parkville compare with what you saw on 31 May up here?---Look, none of the – I wouldn’t say any of them are perfect and I would say we have all got – every centre has got something to learn from each other. Parkville has lots of good qualities, certainly a very healthy attitude and relationship between the staff and the young people and in particular that is one of the facilities that has a leadership program for young people and they meet regularly with the young people and, you know, talk about issues, you know, day-to-day issues or broader concerns that they have. They also have an input into the program of activities as well. So it has – it has got some good qualities. I mean, I think that they do use isolation from time to time too but it’s very minimal and to do with security and safety of individuals; it’s not used as punishment. And – or it’s used – yes – for


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assessment as well sometimes and there is certainly a very rigid program of watching people in those environments and recording what’s happening. So it has got many good qualities about it. I also understand that some of their registers were – I think it’s in use of restraint in particular – I will have to clarify this as well – is now made available routinely to the oversight agencies in that state, or some of the oversight agencies in that state.

You mentioned in your evidence – and I just want to ask you about that – about the things I think that pose a concern for you concerning restraint mechanisms that they use up here in the Northern Territory. You are aware of that, aren’t you?---Yes.

And they include shackles and hand cuffs?---Yes.

And also the – what is now the notorious, infamous chair. You’re aware of that?---Yes.

Is there a chair such as that in any other jurisdiction that you’re aware of?---I’m not aware of it in a juvenile facility. But I could be wrong; I haven’t visited them all.

How does the use of a chair such as that – and you know the one I am meaning: it is the one where you are shackled with your ankles, your waist, and you are handcuffed to the arms of the chair, and for good measure a spit hood is placed on your head and placed in that cell on your own for two hours. How does that sit with all these international instruments that you have been good enough to inform us about and including the Geneva protocol and the convention against torture?---I would say that’s unacceptable in terms of children’s rights and there are other ways of diffusing a situation or dealing with self-harming or other behaviour, as it was reported to be about.

COMMISSIONER WHITE: Have you just about finished there? Your 15 minutes seems to be withering away.

MR LAWRENCE: I can’t help myself. Are you able to comment on the situation that you saw here in 2016 compared with what existed in the Northern Territory 15 years before?---No.

You can’t?---No. I am not in a position to do that. I think there will be other witnesses who will have that longevity of experience.

That’s all. Thanks very much.

MS GRAHAM: Commissioners, my name is Graham, I appear for the Central Australian Aboriginal Legal Aid Service. I just have one area that I would like this witness about if I may.

COMMISSIONER WHITE: Yes, of course.


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CROSS-EXAMINATION BY MS GRAHAM [2.29 pm]

MS GRAHAM: Ms Mitchell, you spoke before lunch about one of the important rights of children in detention, which is access to family and community. When you visited the Don Dale Youth Detention Centre in 2016, May of this year, did you have contact with some children that were from the central Australian area, from Alice Springs or further south in the Northern Territory?---Yes. There were some that were from further afield. Yes.

And did you have any discussions with those children about their experience of dislocation from family and community?---Yes. The access to family was a common issue for kids, especially those who weren’t from the Darwin area and they were keen to have more access, they – and more time on the phone and also suggested maybe more use of – or use of Skype. They had lots of good ideas so I would always say go back and ask the young people, they have always got good ideas, in order to keep contact. Because after a while people – you know, it’s costly and it – you know there is a – is a lot of effort for some of the families to come and, you know, after a while they didn’t come anymore. So they ended up getting more dislocated from their family groups. So that was of concern to some of these kids who were really obviously missing their families very much.

Of the children that had been moved from the central Australian area up to Darwin, did you have any discussions with them about whether they understood why they had been moved?---Another issue that came up generally was a lack of access to information and that’s not to say that children and young people weren’t given information, you know, at the time. But my experience with young people is they need to be given information several times because in the heat of whatever is going on they may not retain – it. And also many of them might have been given things in writing and many of them were not literate and not capable of digesting what was before them.

And in this area and in others, you have mentioned the importance of hearing from the children themselves about their concerns and about potential solutions?---Yes. Absolutely.

Is that right?---And they are – you know once you do treat people with respect, no matter what their backgrounds, and they trust that that is a genuine relationship, they will tend to engage with you on thing – in a different way and start to become part of the solution, not part of the problem.

And in your view is it important for this Royal Commission to hear directly from children about their concerns and potential solutions?---I in fact wrote to the Royal Commissioner on this very point, noting it’s really important to involve children and young people in the process and in an appropriate way, and to utilise those members of the community already working with young people to help make that happen.

.ROYAL COMMISSION 20161011 P-55 M. MITCHELL XXN©Commonwealth of Australia Transcript in Confidence MS GRAHAM

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And one final area I want to ask you about, and that’s in relation to withholding or restricting access to family visits or other contact with families, such as over the telephone, as a punishment or a disciplinary measure in detention. In your opinion, is that consistent with Australia’s present human rights obligation for children?---I think I mentioned before all these rewards and points systems or token economies, or whatever they are called, a lot of them don’t come from a very strong evidentiary base that they work, you know, and I think that really needs a strong review in all the places around Australia, including in the Don Dale area too. Because I think some of those things should not be – should be a basic right that keeps the kid grounded. They shouldn’t be about – you can take away television, that’s fine, but you shouldn’t be in a position to take away access to family or, you know, restrict the number of calls to families. But, you know, a lot of those systems do have an element of that in it, either as a reward or a punishment. I think we really need to review those to see how effective they are and whether we can really make some things just basically a human right.

It’s your view that contact with family is one of those basic rights?---Absolutely. I mean, if we are talking about trying to build communities that care for their kids and have, you know, a place for their kid to go before and after their involvement in a detention setting, then we really need to maintain those connections and maintain them strongly. Yes.

Thank you, Commissioners.

COMMISSIONER WHITE: Thank you. Anything further from you, Mr Callaghan?

MR CALLAGHAN: No. Thank you, Commissioners.

COMMISSIONER WHITE: Can I just raise this with you: it seems to me that perhaps the Solicitor-General had a point that things were moving into a particular area which in your opening you made clear were not going to be visited in this tranche of the evidence. If there was thought to be any disadvantage by that line of cross-examination I was going to propose that Ms Mitchell might make herself available by video link at some subsequent convenient time from wherever suits her so that Ms Brownhill may have an opportunity to revisit that if it becomes apparent that that’s necessary. Do you have any submission?

MR CALLAGHAN: No. With respect, we would endorse that and we accept that at this early stage there are grey areas and it has been appropriate, with respect, to allow the cross-examination which has occurred. But it has meant that things did stray into an area which we will be dealing with at a later stage in proceedings, and if the solicitor wishes to have further matters put to Ms Mitchell, with respect, we will make that happen.

.ROYAL COMMISSION 20161011 P-56 M. MITCHELL XXN©Commonwealth of Australia Transcript in Confidence MS GRAHAM

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MS BROWNHILL: I would be grateful for that. Thank you Commissioner.

COMMISSIONER WHITE: Thank you very much, Ms Mitchell, for your evidence and your willingness to come up here, and to be further exposed to questions should that arise?---Thank you. And thank you for the opportunity.

COMMISSIONER WHITE: I think the better thing might be if I release you from the notice to appear and a fresh notice can issue should that happen, because it just very well might not and then it’s hanging around. Is that satisfactory to you?---Yes. That’s fine with me.

Thank you.

MR CALLAGHAN: Thank you, Commissioner.

<THE WITNESS WITHDREW [2.35 pm]

MR CALLAGHAN: Mr McAvoy will take the next witness which will also involve our first engagement with technology.


MR McAVOY SC: May it please the Commission. I understand that the AVL connection for the next witness has been arranged. Yes.

COMMISSIONER WHITE: And that’s for Carolyn Richards.

MR McAVOY: Yes. Commissioner I call Carolyn Anne Richards.

COMMISSIONER WHITE: Ms Richards, are you able to see and hear us clearly?

MS RICHARDS: Yes. I can.

COMMISSIONER WHITE: Can I then administer the oath to you. I understand you will take the oath on the Bible.

MS RICHARDS: Yes.

COMMISSIONER WHITE: Do you swear by Almighty God to tell the truth to this Commission and board of Inquiry, so help you God?

MS RICHARDS: I swear.

COMMISSIONER WHITE: So help me God?


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MS RICHARDS: So help me God.

COMMISSIONER WHITE: Thank you, Ms Richards. Thanks, Mr McAvoy.

<CAROLYN ANNE RICHARDS, SWORN [2.37 pm]

<EXAMINATION-IN-CHIEF BY MR McAVOY

MR McAVOY: Ms Richards could you tell the Commission your full name and your occuptation?---My full name is Carolyn, L-Y-N, Anne Richards and I’m retired now but I was a solicitor and barrister and held various positions throughout my career. In private life, I mean.

Thank you Ms Richards. You retired in 2012; is that correct?---That’s right.

And your last position before you retired?---I was the Ombudsman and Health Complaints Commissioner in the Northern Territory.

COMMISSIONER WHITE: Mr McAvoy, I’m just going to ask Ms Richards if she could just sit a little bit forward. When you sit back in your seat, it’s a little bit fuzzy. When you lean forward it’s as clear as a bell.

MS RICHARDS: Is that better?

COMMISSIONER WHITE: I think it is.

MR McAVOY: I would prefer a little bit more volume if we can arrange that through - - -

COMMISSIONER WHITE: It might be at the other end.

MR McAVOY: We will see how we go.

COMMISSIONER WHITE: All right. Thank you.

MR McAVOY: Just a moment ago, Ms Richards, you referred to the fact that you held a number of positions during your career. You have referred to some of those in paragraph 4 of your statement. Could you just tell the Commission about those positions?---The Guardianship Board in South Australia was the tribunal that heard applications under the Mental Health Act and under the Guardianship Act about the compulsory treatment – I’m sorry. I’m getting such bad feedback now.

.ROYAL COMMISSION 20161011 P-58 C.A. RICHARDS XN©Commonwealth of Australia Transcript in Confidence MR McAVOY

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COMMISSIONER WHITE: Just pause for a moment and we will try and sort it out, then. Perhaps the microphone at your end could be adjusted?---I have just removed the lectern. Is that better?

COMMISSIONER WHITE: It’s nice and clear for me?---Can you hear?

MR McAVOY: Yes, please.

COMMISSIONER WHITE: How is it for you, are you getting feedback now?---No. That’s good now. In answer to Mr McAvoy’s question, the Guardianship Board in South Australia was the tribunal that heard applications under the Mental Health Act, compulsory treatment and applications under the Guardianship Administration Act with respect to detention of people in mental hospitals, nursing homes, and I held that position for four and a half years in the early 90s. And then I was the director of the Legal Practitioners Conduct Board which I think has the same name here in Queensland, and that was the monitoring body for the discipline and ethics of solicitors and barristers in South Australia.

Thank you?---And I was in private practice for 22 years before I took up those positions.

When were you appointed as Ombudsman in the Northern Territory?---In August 2005 I took up my position.

And that appointment was for a seven year period for which you were not eligible for reappointment; that’s correct?---It – in 2005 it was a five year appointment but there were amendments being passed or proposed to be passed and I knew that it would be seven years non-renewable and that’s eventually what happened when the new Act came in 2009.

And the Act – the Ombudsman’s Act, as it now stands, provides for seven year appointments which are non-renewable?---That’s correct.

Okay. Paragraph – if we can look for a moment at paragraph 7 of your statement?---Yes. I have that in front of me.

I apologise. Ms Richards, could I ask you to look at that statement that’s in front of you now.

COMMISSIONER WHITE: That’s paragraph 7, Mr McAvoy?

MR McAVOY: What I will do is have it tendered. I will tender the statement and the report and then proceed, Commissioner.

Ms Richards?---Yes.


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COMMISSIONER WHITE: I think it better we see the witness, Mr McAvoy, rather than the statements up.

MR McAVOY: I’m waiting, Commissioner.

COMMISSIONER WHITE: Thank you.

MR McAVOY: Now, you have got your statement in front of you?---Yes, I have.

Can we show the statement on a split screen. And you can see the statement on your screen. Yes?---No. I can’t.

COMMISSIONER WHITE: No?---No. I can’t.

Ms Richards has the statement herself, though, in front – in her hand?---That’s right. I have a paper copy in my hand.

MR McAVOY: Yes. The statement that you have is dated 7 October 2016?---That’s correct.

And it’s a six-page statement?---Yes.

And your signature appears at the bottom of each page?---Yes. That’s correct.

And on the final page?---Yes, that’s correct.

And annexed to that statement is your report, the - - -?---That’s correct.

In the report can you tell the Commissioners the title of your report?---It’s entitled “A Lifelong Shadow”.

And it contains how many pages?---221.

Thank you. Now, I tender the – sorry. That statement is true and correct. Ms Richards?---Yes. It is.

Commissioner, I tender the statement and the attached report.

COMMISSIONER WHITE: The statement of Ms Richards and the attachment is exhibit 10.

EXHIBIT #10 STATEMENT OF CAROLYN ANN RICHARDS AND ATTACHMENT

MR McAVOY: Thank you. Ms Richards, can we go back to paragraph 7?---Yes.


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Of your statement. In paragraph 7 - - -?---Yes. I’m looking at it.

Yes. You explain that you were approached by some allied health workers. Could you just explain to the commission what allied health workers are?---Health workers are doctors, nurses, radiologists; allied health workers are social workers, chiropractors, podiatrists, people like that.

And in your statement you said you were approached by three allied health workers. Did they approach you together or separately?---No. They approached separately, but they all knew each other.

And it was all about the same time in late September 2009?---Yes. I’m fairly certain that that’s when it was.

Okay. Can I take you to the last sentence of paragraph 7?---Yes.

In that paragraph you refer to the Family Intake Service. And that’s followed by in brackets as it was then known?---Yes.

Do you know if that’s the correct name of the service you are talking about?---No, the correct name was the Central Intake Service, as referred to in my report.

Thank you. Now, the last sentence of paragraph 7, can you just explain for the commission what you are intending to convey in that paragraph?---I was intending to outline that 17 children were identified and they were the 17 children that appeared in the notice to investigate when I eventually served it. As opposed from the 61 children whose cases formed the subject of my report. And I go – in my report, explain that those 17 were identified by the three persons referred to at the beginning of paragraph 7, and when cross-checking the names of those 17 children for any siblings, relatives who also had been the subject of either reports to the Central Intake Service or admissions to hospital, it came out that there was 61 children all together. And 61 cases or files were what we investigated, which formed the subject of the report.

Thank you. But it was 17 children that were initially identified from speaking with the three allied health workers?---Yes. They were the names known to those workers.

If you can look at paragraph 8, you outline there that the workers experienced difficulties in making contact with the Family Intake Service, or the Central Intake Service. Are you able to explain for the Commission what the role and function of the Central Intake Service was at that time?---The Central Intake Service was the sole entry or portal to access services for children who were neglected, misused, or were to get help from the family and community services section of the Department of Health. And unless the Central Intake Service accepted a child as in need of some sort of help, then there would be no government response, even though there might be police reports about harm to that child or hospital reports, nothing would be


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activated and no service would be provided until the Central Intake Service approved services being provided to that child. They were in effect a type of assessment bureau or a triage bureau on whether someone should be accepted for treatment, and if so what priority.

Thank you. Can you turn to page 25 of your report?---Yes. That’s the flow chart.

At page 25 there’s a flow chart shown. If you could just wait for a moment, Ms Richards. I just need to confirm with the operators that we don’t have a split screen facility with the AV. Thank you very much. Are you able to follow, Commissioners, with the report?

COMMISSIONER WHITE: I think I would like to see it up on the screen briefly, Mr McAvoy.

MR McAVOY: Very well. If we could see the – page 25.

So page 25 of the report shows the central intake flow chart before 1 July 2009 and, Ms Richards, if we can go back to the witness, please, Ms Richards. That flow chart attempts to map what the Central Intake Service, or the central intake team – functions performed by that team prior to July 2009?---Yes. It shows the procedure that was prescribed by the operation manuals and the instructions from the – from the Child Protection Service, yes.

Now, at paragraph 8 you say that the workers were experiencing difficulties making contact with that service. Can you explain what the difficulties were?---Well, I think I’ve actually gone on to say that in paragraph 9, but briefly there was no one answering the phones a lot of the time, they would waste time making numerous phone calls, and they would be told that someone would ring back, and they weren’t rung back, and when the phones were answered they were found they were speaking to someone who didn’t necessarily understand the significance of the facts that were being reported by the allied health workers. And then when they wanted to follow up – assuming they had got through eventually on the phone – when they wanted to follow up to find out was there going to be some action taken with respect to the particular child that was the subject of the notification, they didn’t get information, and if they asked to be given information at the time of reporting it was rare for that information to be provided. So when they were dealing with – should I pause?

No. Continue, please?---So when I was dealing – when they were dealing with a child who was in hospital and trying to do discharge planning, or work out was it safe to send the child home, they were trying – they were acting without any real knowledge of what the department, if anything, was going to do.

So you’re saying - - -?---So they could complete their discharge planning appropriately, to their satisfaction.


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So you’re saying there was not only difficulty making contact with the family – with the Central Intake Service, but having any ongoing communication with that service was difficult?---That’s right. The intake service, which was the only part of the child protection authority that the social workers could access, would not pass back any information to them and, of course, it wasn’t the intake service itself that took any action. They then referred to a regional office or an operational office, and it was the staff at that office that did anything, if anything was to be done. But because there could be no – there was no contact allowed between that operational office and the staff of the hospital, it all had to go to the intake service. Then the intake service was absolutely pivotal to the people in the hospital being able to carry out their duty to care for the children which they were seeing sometimes 15, 16 times a year – there was one case I referred to in my report.

Yes?---The same family. And they couldn’t – they couldn’t plan it, because they couldn’t get any information back from the intake service.

Now, if I could just ask you to look at paragraph 9, and in particular the first sentence of that paragraph?---Mmm.

You say that the difficulties in contacting the service were compounded by a change in practice where they would no longer accept notifications by email. Do you know when that change in practice occurred?---I know certainly it had occurred by September 2009 and I think it occurred shortly before then ..... AVL CONNECTION LOSTI didn’t touch anything.

COMMISSIONER WHITE: That’s what you say, Mr McAvoy.

COMMISSIONER WHITE: We might take a short adjournment until this is tidied up, so you can do it more freely.

ADJOURNED [2.54 pm]

RESUMED [3.08 pm]

COMMISSIONER WHITE: Thank you Ms Richards, I’m glad you are back amongst us. Thank you Mr McAvoy.


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MR McAVOY: Thank you, Commissioner. Ms Richards, a moment ago I was asking you about paragraph 9 your statement. You have still got your statement in front of you?---Yes, I have.

And I was asking you questions, if you recall, about the problems of contacting staff at the intake service, which were compounded by a change in practice where they would no longer accept notifications by email. Were you told why there was that change in practice to stop taking email notifications?---No. I can’t recall. But if I had been told why it would probably be in my report.

Yes. As far as – as far as the decision to stop the email notifications, and assume it’s not in your report, you have no other information about who made that decision?---No, I don’t.

Do you – are you aware of whether the central intake team at that point had a person in the position of manager?---Manager or acting manager, I can’t remember the exact title.

And do you know - - -?---There was a manager or acting manager and a team leader, and then the workers who answered the phones and did the actual work.

Okay. And if we work upwards from the manager, who did the manager report to, do you know?---No, I don’t.

You’re not aware of the organisational chart within the Child Abuse Task Force, I take it then?---Can I just check the report one minute? Because I do recall that when I tried to find out who reported to the minister, I was told that it was the person at the end of that hierarchy. I’m just looking for the title. Yes, senior – the title of the person above that manager was the senior manager of Darwin, urban and NT-wide services, and is referred to at page 43 of my report at about point 4.

Thank you. We will come back to that. The Child Abuse Task Force was situated within the Department of Families and Children?---No, the Child Abuse Task Force was a police task force, and it was situated at McCauley House on the edge of Darwin, next door to the Central Intake Service.

Do you - - -?---When I say next door, they were in the same building, but their offices were adjacent.

And do you recall who the Minister was that the task force answered to at that time?---I’m sorry, you are confusing me by saying task force. The task force was the police abuse team that was set up - - -

Yes?---After the intervention.

I understand that?---And that would have reported – that would have reported to the Commissioner of Police, and of course the Commissioner of Police reported to the


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Police Minister, who was the Chief Minister. But the Central Intake Service would have reported to the Minister for Health.

Thank you. Now, in paragraph 9, you refer to the experience of the hospital staff dealing with children or siblings repeatedly, where they had been unable to make notifications. Did any of those that you spoke to express any concern about their own exposure in not being able to notify what – what they had come across?---Or expressed concern that they were unable to fulfil their duty of care, because of not being able to do any investigations themselves and not being able to take any action. The only thing they could do was report to the intake service, and they are professionals who reported to me that they felt greatly frustrated by the fact that nobody was doing anything.

Thank you. Could you turn to page 22 of your report?---Yes.

At page 22 under the heading Central Intake Team, you discussed the role of that team and you make an observation that the – in the second last paragraph. Could you – or could you read the second last paragraph for us, please?---The one commencing – beginning, “My investigation found”?

Yes, please?---

My investigation found these benefits were not being realised. Witnesses informed my office that decisions concerning family support referrals were influenced by the reality that such services were unlikely to be provided in a timely or effective manner and therefore were not offered. Or, in many cases, were not assessed and afforded as needed for a family. Instead of centralisation improving access to child protection services or family support services, central intake team, health and child protection

– sorry –

…central intake became a gatekeeper, almost impenetrable, and certainly secretive, factors which drove health and child protection workers to approach the Ombudsman.

Now, when you refer to the Central Intake Service being almost impenetrable, is that a reference to the inability to contact that service other than by telephone, or is there something more?---Well, it was a two-sided thing. Yes, it was – it’s a reference to not being able to get through to the service, but it’s also a reference to not being able to get any feedback or find out what, if any, action had been taken or why a decision had been made not to take action, if that was the case.

You also - - -?---Most people – most people notifying their concerns were left in a vacuum, and that’s what I meant by secretive.


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Thank you. You also say in that paragraph that the Central Intake Service was secretive. Why do you say that?---Because they wouldn’t give any information back to those people who needed that information to be able to carry out their duty of care towards the children who were being presented to the hospital, sometimes time and again, with similar problems.

But in using the word “secretive”, you’re indicating that there may be some purposeful withholding of information. Is that what you’re intending to say?---Yes. That’s my interpretation, because I cannot think of any justification for not providing information that’s in the interest of the child or the patient or the client to be sharing. So I don’t know the motivation for that, but I certainly did intend to imply that that secrecy was not in the interests of the children or the workers at the hospital, or the allied health workers.

Could you please turn to page 107 of your report. It’s the page on which the recommendations appear?---Yes.

You made 28 recommendations in your report; correct?---Yes.

And the responses of the Child Protection Authority were sought before you finalised the report?---Yes.

And you - - -?---Before it was tabled, yes.

And you’ve included those responses - - -?---Yes, I have.

- - - in the recommendations?---That’s correct.

Now, in relation to recommendation number 6?---Yes.

There was a recommendation that another phone be established seven days per week, 24 hours a day, that is dedicated to and only given to professional notifiers and which receives priority in being answered. That phone number should also be available to NT Police and deputy principles of schools. The response to that recommendation is shown there as, “not agreed, will be considered”. Is that a response from the Child Protection Authority?---Yes.

Okay?---By that time the Child Protection Authority was separate from the Department of Health, so that’s a response from the Child Protection Authority.

And recommendation 7, that the facility for professional notifiers to email or facsimile notifications be restored to the NT public hospitals. And the notification – the response there is, “opposed, not considered necessary”. Can you see that?---Yes – yes, I can see that.

Were you given a reason as to why that was – that recommendation was opposed?---No.


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Were you given a reason as to why recommendation 6 was not agreed to?---No, I wasn’t.

Okay. If we can just turn back to paragraph 10 of your statement. I would ask you, if you could, to read paragraph 10 for the Commission.

COMMISSIONER WHITE: Mr McAvoy, I’m sorry to intervene, but it’s on the screen. We have it in front of us.

MR McAVOY: Certainly.

COMMISSIONER WHITE: I don’t think we need to ask the witness to do that. If there are any particular portions you want to emphasise - - -

MR McAVOY: I will, Commissioner.

Ms Richards, could you turn to page 21 of your report?---Yes.

In paragraph 10 of your statement you say:

I attempted to obtain records relevant to the health workers’ concerns and harassments – about harassments and reprisals, but was unable to pursue these concerns for the reasons set out on page 21 of my report.

Are you able to just direct the Commission to where those matters are set out on page 21?---Yes. It commences in the second paragraph on page 21, at about point five down that paragraph. Commencing:

I had intended to follow up with a witness on a later date –

etcetera, etcetera –

…when in February 2011 I was informed by the minister for child protection that legislation was about to be passed to remove my power to investigate matters relating to child protection unless they involved a complaint about a police officer.

And then the fourth paragraph immediately above the heading, Reaction to the Board of Inquiry Report:

Upon being informed of the amendments to the Act, removing the Ombudsman’s jurisdiction, I ceased any further investigation concentrating on analysing the information collected, and on writing this report, so that it could be completed before the amendments took effect on 1 July 2011.

And does that – is that reflected in the title of your report, A Life Long Shadow: report of a partial investigation of the Child Protection Authority?---Well, it explains


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the reference to a partial investigation, yes. But the lifelong shadow, of course, is taken from a statement that appears on page 2, which is that child abuse casts a shadow the length of a lifetime.

Now, if I could ask you to move to paragraph 11 of your statement. You refer to an inquest into the death of a child in the care of the Minister. It’s – it has got the reference 2007NTMC007. You’ve referred to that decision in your report, and you’ve included an extract from that decision at paragraph 12. The – is it fair to say that the extract from that decision is one of the things that prompted you to action in commencing the investigation?---Well, I was prompted to action mainly by the fact that the government said that they were not going to do any investigation in response to the coroner’s report, and there were calls for that to happen from the media, from various organisations, from the opposition, and on at least two occasions the government said, “We will not be doing an inquiry.” And I’m reading the horrific details on what happened to the child who was the subject of that inquest, and the role of the Child Protection Authority around that child’s death. I thought that there should be an inquiry of some sort, and on the background of that, of course, was I had at least three people who were very concerned that something like that might happen to the children who were being discharged from the hospital without the social workers or the doctors being able to satisfy themselves that appropriate response was going to be made by the Child Protection Authority to what they perceived as a risk to those children.

Now, at paragraph 14 you set out that you decided to conduct an investigation of your own motion, and you set out in three points the nature of the investigation. The terms of – or the notice of investigation sets those matters for investigation out more fully and if you turn to page 16 of your report?---Yes.

That – at page 16, and going through page 17 and to page 18, is the notice of investigation which you issued?---Yes, that’s correct.

And those matters - - -?---That was the terms of it, yes.

And those matters at paragraph 14 of your statement are only a summary of matters contained in the notice of investigation; is that right?---Yes, that’s – that’s correct.

You served a copy of that notice of investigation on the chief executive officer of the department and the Minister for Families and Children on 9 – sorry, on 2 November 2009. Who was the chief executive officer of the department that the time?---David Ashbridge.

And the Minister for Families and Children at that time?---Mr Kon Vatskalis.

After – at paragraph 17 you speak about the commencement of another inquiry. Can you explain what that inquiry was?---It was an inquiry set up by the Chief Minister on the authority of the Northern Territory Inquiries Act. The chair was – I think there were co-chairs, Muriel Bamblett and Howard Bath and there were several other


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Commissioners but without reference to the report I can’t recall them. And it produced a report which I’ve also referred to as – I get them confused. There was one involving Ms Anderson and Rex Wild, and I think that was Little Children are Sacred, and I think the report that was produced by this inquiry was called Protecting them Together, or Bringing them Home Together, something like that.

Could it be - - -?---I’m sorry, you’ve probably got - - -

Growing them - - -?---You’ve got your fingers on the reference, I’m sure.

Sorry. Could it be Growing them Strong Together?---Yes, that’s the one.

At paragraph 18 you set out some concerns you had about having concurrent investigations about similar matters. Could you just explain how you dealt with those concerns?---I had a conference at my request with the Chief Minister and I set out my concerns and we came to an arrange whereby I would cease my investigation and I would only resume it if I was satisfied that the inquiry was not likely to get to the level of diligence or inspection or investigation that I thought was needed. And in return the Chief Minister said that I could have access to the processes and the information being gathered by that inquiry.

And you ultimately determined to continue with your investigation; why was that?---Because I wasn’t satisfied that the methodology adopted by that inquiry was looking at first-hand evidence or was likely to uncover the real source of what the problems were because it was relying on public meetings, written submissions, and it wasn’t actually investigating the original records in a – how will I put it – in a really forensic way.

And - - -?---And I may say that looking at the report ultimately to me the lack of detail in it shows that it really depends a lot on the information that has been provided by departments, agencies, people who have got an interest in not disclosing how bad things really were and my report was to try and make certain that the public of the Northern Territory and the Government and the agencies concerned realised that things hadn’t changed for at least five years in the intake service and that it wasn’t just a matter of money and procedures and changing manuals, and creating processes. There were children actually being neglected and abused, it was being badly managed, and that was obvious at examining the records of the intake service. And I thought it needed to be looked at. In a very – in a disciplined and analytical way.

Thank you. Now, if you can look at paragraph 20 of your statement. The methodology set out there is the methodology you used to investigate the matter and get to the heart of the issues that you saw; is that right?---Yes. We looked at original records, interpret them according to their purport in the English language, and didn’t rely on someone else’s interpretation of what they meant. We actually examined the written evidence. Quite robustly.


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Now, paragraph 21, you say that at times you had difficulty getting information from the department and the Child Protection Authority. Can you explain what occurred in relation to your request for information from those agencies?---I started off by serving a summons. When I say the department or the agency you have to understand that when in 2009 this commenced there was the Department of Health; the Child Protection Authority was a unit within the Department of Health. And then after the report of Growing Them Stronger Together, the child protection services were moved out into a separate department. So I have served my summons on the Department of Health, because that’s what it was at the time. But you need to understand that in the background. The problem with getting information was that it was very slow, took a long time to respond. The information came forward in boxes of papers that were – weren’t properly filed or organised. The Child Protection Authority did give us a sort of covering spreadsheet to fill in information about the original files that were actually missing from the files. So then we wanted to know, well, how can you give us this spreadsheet, giving us all this information, if you don’t have any documents – electronic or otherwise – to tell us. And one of the criticisms I made was information that was coming forward should have been in the files because it was information that was necessary for those people at the central intake telephone lines to know what the history of any particular child was when a notification came in in 2010. And as with any process of discovery of documents, when you read one document you might find a reference in it to another document that hasn’t been produced, or you might find reference to a piece of information which has been disclosed and you want to know, well, what’s the source of that piece of information. So that would then require – I don’t think we served summonses all the time, but it certainly required follow-up requests for documents and, once again, there would sometimes be weeks’ delay in getting it. That, I think, was the main ongoing problem for nearly 12 months or so. But initially there was a delay after service of the first summons because the department took the view that the Ombudsman didn’t have the power to request the documents that were named in the summons.

But the – if you could turn to page 102 of the report, please, Ms Richards?---Yes.

Sorry. 103?---Yes.

At the bottom of the page there’s a commencement of a table which is titled Chronology of the Department’s Response to Summons dated 21/01/10 for production of documents?---Yes.

And that shows, in potted form, the communications with the department regarding production of documents. Is that correct?---It’s not 100 per cent extensive, but what is there is certainly correct. Yes.

And, so, the documents that you had by 17 September 2010, which is the last row in that table?---Yes.


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Were they the documents that you ultimately relied upon for your report?---Yes. Certainly. What I can’t swear to, though, is that there weren’t others after that date. There may have been. But they wouldn’t have come – you see, in October 2010 the report of the Inquiry under the Inquiries Act involving Dr Bath and Muriel Bamblett was published, and I know I gave great attention to that report, its recommendations, to see whether the terms of the report, the robustness of the investigation and the information in it, would relieve me of having to write a report because it was a – I would have considered it of such a high quality. But after I had studied that report I thought that my investigation needed to continue. And as I say, there may have been documents that came into our possession after 17 September 2010.

You ultimately produced a draft report and received responses, though, didn’t you?---Yes. That’s right.

And you completed your report by 30 June 2011?---Yes.

And it was tabled in Parliament on 8 August 2011?---Yes. That’s correct.

I will just take you to some of the matters in the report which are not covered – or not covered in detail in the statement. In dealing with the issue surrounding the handling of notifications by the central intake team, or the central intake service, you became aware of a dummy intake stratagem to reduce processing backlogs; is that right?---Yes. That’s correct.

So in your report from page 36 to page 43 – if you just go to page 36 for the moment. But from page 36 to 43 you outline a process and actions which raised a number of concerns for you?---Yes.

Could you, as best you can, explain what a dummy intake form is and their effect?---Yes. I think the clearest way to do it is to go back to the chart on page 25. Sorry. Page 24, or both of them, really, if you can show them both together.

I don’t think we are able to show them both together?---All right. Well, I will start with the one on - - -

If you could start with - - -?---I will do the one on page 25, because that’s after July 2009 and that’s the time when these dummy notifications were commenced. I think. Just let me check that. No. Sorry. I’m sorry to waste your time. It is the chart on page 25, because the dummy notification process started before July 2009. So if you have a look at that chart, the first item is a notification is received. The second action that’s meant to occur is that there is an initial danger assessment. In other words, the facts reported by the notifier are considered. And then there’s an outcome recommended. That was what is meant to happen. And there were four possible outcomes. The notification not accepted. There was a child protection report created. There was a family support case created, or there was a protective case created. Right. And then the intake was to be approved. And then if you come over to the left-hand side of that chart, right down the bottom, you will see: notification is


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recorded in CCIS. Now, that’s the data system of – that contained all the information. So that when someone rang up a worker would go to CCIS, put in a person’s name, and it should have come up that this person is being notified before, this person’s siblings have been notified before by the police or by the school or by the hospital, or whomever. Right. Now, what the dummy – what the dummy documents did was that notifications were received and you went straight from that first item Notification Received, down to Notification Recorded in CCIS as no further action. Now that’s what was happening in over 600 cases. So they had bypassed the assessment, consideration of whether it fell into any of the four categories of risk – or, sorry, three categories of risk – and automatically they went from notification received, notification not accepted, no further action and notification recorded in CCIS. And what might report is explaining on pages 36 and following is that the minister was told that the name of the child, the date of the report, a simple outline of what the facts were was being recorded, assessed and entered into the data base. And it wasn’t.

Ms Richards - - -?---That’s the relevance of that section in my report.

Ms Richards, just if we can go back a couple of steps. The initial CCIS referred to Community Care Information System; is that correct?---Yes.

The dummy intake forms you were able to establish what that form physically looked like?---Yes. It looked the same as the initial danger assessment form that was used in genuine cases where there had actually been an initial danger assessment. And details of the notification – namely the name of the child, the child’s siblings, whether there had been any reports, the name of the notifier and a brief outline of the facts reported, had all been recorded. And all it was was a blank form.

If you can just turn to page - - -?---Sorry. With a number.

Can you just turn to page 38 of your report, please?---Yes.

If you can look at the shaded boxed section of that page?---Yes.

That document is a memorandum. Can you explain where – how it is you came to get that document?---It was subpoenaed from the Department of Health as part of the child protection unit’s records.

And?---And it was subpoenaed because when we had investigated the 61 files whose names we had identified, we came across reference to an entry on notification dealt with according to memorandum of 24 October 2008. And then I think there was an extension of that memorandum in January 2009. And there were actual entries on the records of the 61 children that we had identified showing notification dealt with under – and it gave the date of the memorandum. So that led us to seek the memorandum.


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And this is a – well, it’s a reproduction of the memorandum that you discovered?---Yes. That’s correct.

Dated 28 October 2008?---That’s correct.

And it was if I understand you correctly it was relied upon as a basis for dummy intake forms?---Well, that’s what was shown in the records. Yes.

And the author of that memorandum is shown at the top?---Well, the title of the author, yes. But we were never able to actually identify who that person was. We were given a name and we subpoenaed that person and interviewed her and she absolutely denied that she held that position at that time.

So you couldn’t identify which person within the child abuse task force and central intake held the position of manager at 28 October 2008?---No. We were unable to. Because the personnel records didn’t accurately disclose who was on leave, who was acting. And – but the name they did identify was the witness that we examined, who absolutely denied that it was her. My memory is that we were then given another name of someone who was interstate who we didn’t get to examine personally, but he sent us a statement denying that he held that position. And I think that was the January 2009 memorandum that he was talking about. It’s in my report and my memory about precise dates may be inaccurate, but if it’s in my report that’s the – more accurate than my memory. But I certainly do recall that there was someone interstate who at one stage had that title and denied that he had authorised either of the memoranda of 24 October or I think it was 5 January 2009.

Yes. If you could look at page 39, the second paragraph. Does that assist you?---Yes. That’s what I was referring to, but, of course, the date of the memo is not there. No. I’m sorry. I – one is 24 October. I haven’t got the precise date of the January one. It’s just referred to as January 2009.

Thank you. Now, on page 39 there is a heading in bold, Keeping the Minister in the Dark. Could you just explain briefly what you had found in respect of the minister’s knowledge of the functioning of the Central Intake Service?---Well, if you look at the second paragraph on page 29, the third to last sentence:

The manager voluntarily provided –

this is the manager who was interstate:

The manager voluntarily provided information by email in which he stated the adoption of the dummy procedure was specifically authorised by the minister.

So I called for copies of briefings to the Minister from the department on this topic and there was a report to the Minister but it was certainly not the Minister authorising this, as I go on to explain. It was simply a report back to the Minister of the numbers


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involved, whether there was a backlog – because I think at that time it was either the Coroner or the Growing them Stronger Together report had referred to a bag lock. And the Minister wants a briefing on how big the backlog was. And this is what was sent. And at the bottom of it, as Ministers won’t, they don’t sent back, often, their own minute; they simply endorse something on the bottom of what is said to them. And the Minister had simply written, “Noted”, and a date.

So in the - - -?---So to suggest that she approved it was quite wrong.

So in the second paragraph under the heading Keeping the Minister in the Dark, you referred to a request in December 2008 from the Minister for a briefing about the central intake process. Can you see that?---Yes. I see that.

Who was the Minister at that time. That - - -?---Malarndirri McCarthy.

Sorry. Malarndirri McCarthy?---Yes.

And below that paragraph, in italics, is set out, going over to page 41 are what you have described as the relevant parts of the briefing; is that correct?---Yes. That’s correct.

Are there parts of that briefing that are of relevance – particular relevance to your report?---Well, not on this issue. Not with respect to these – what they would call shorthand reports, or recording. And what I called dummy reports. These were the portions that were relevant to that, but there was a lot of other information about backlogs in other areas, not necessarily involving the Central Intake Service.

Do you know who the author of the brief was?---I’m sorry?

Do you know who authored the brief to the Minister?---Yes. I did. Sorry. Let me correct that. I made inquiries and the signature on it didn’t reflect the author of the report. It was done in January 2009 which, notoriously in the Territory, everybody leaves for Christmas and offices are closed. And someone in the department had prepared the report, it had been given to the witness that I referred to, who denied that she was in the position of the Manager, Darwin Urban and NT-wide services, to sign, and she said she wouldn’t. So I was informed by someone from the Child Protection Authority on this issue – this is verbally in my investigation – that it had been passed to the person who had actually signed it, who was actually had nothing to do with the child protection service, knew nothing about the contents of the report, and she signed it because the relevant people were overseas in January 2009. And they wanted it signed and sent off to the minister. So in – to answer your question I don’t know who the author was in the sense of who created the contents of it, other than the information I have just given: it was signed by someone who claimed to have no information about it at all and simply signed it, in January, because there was no one else around to do it.


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So at this stage of the inquiry you had a memorandum that no one would – you could not find the author of and there was a ministerial brief that you could not find the author of; is that correct?---That’s correct.

And at page 41, immediately after the italics, I assume this is your observation, that the information given to the minister could not be described as accurate. That’s - - -?---Yes, they are my words. They are my words.

And then in the two dot points that follow, there’s some comment upon the briefing note. I would just ask you to read those two dot points.

COMMISSIONER WHITE: Again, Mr McAvoy –

THE WITNESS: The information - - -

COMMISSIONER WHITE: I’m sorry. Just a moment, Ms Richards. I just can’t see the point of Ms Richards reading this out loud. People here can read it, Mr McAvoy.

MR McAVOY: Certainly.

COMMISSIONER WHITE: There’s no jury here. Sorry, Ms Richards. It’s not that we don’t like your reading, but we can move forward more briskly if we don’t do that. You can just stay up on the screen a bit longer to let people read it, of course.

MR McAVOY: At the bottom of page 41, and then over to page 42, you set out nine aspects of the briefing note which you have identified as misleading?---In my opinion, yes.

And at the first full paragraph at page 42, which is not in italics, you form the opinion that it appears – and you can correct me if I am wrong:

The information bolded above was in my view likely to hide the true situation from the minister. And a reasonable person considering the briefing as a whole would assume the statements of all notifications would apply equally to the shorthand notification.

So you form the opinion that that brief did not accurately inform the Minister of the matters on which she had requested a briefing?---During my career I had served as legal advisor to the Consumer Affairs Bureau. I had prosecuted people for unfair advertising and misleading and deceptive conduct. I was very familiar and very experienced in law relating to misleading and unfair advertising and statements. And I set out my professional opinion here but it’s really up to the Commission to decide. And of course I would have liked to have asked the Minister were you misled; what did you understand by this. But, of course, the Ombudsman had no power to look into or ask questions of a Minister.


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And at the bottom of page 2 in the boxed and shaded section, you set out some commentary which makes clear the gravity of those actions in your mind; is that correct?---That’s correct.

Are you aware if there was ever any investigation into the preparation of that ministerial brief?---I’m not aware one way or the other.

If I could ask you to turn now to page 102?---Before we go on, I see that on page 43 I refer to the second memoranda as 5 January 2009. We were searching for it earlier. In the fourth paragraph there. Sorry. What page, 1-0 - - -

102?---102. Yes.

Now, in the paragraphs under What is Really Happening to Children at 102, going over to 103, you try – I suggest you try to set out in summary what your observations of the real story was with respect to those children who were having interactions with the Child Protection Authority or not?---Mmm.

At page 103 in the fourth paragraph, the third full paragraph starting with the words.

To collect the information.

?---Sorry, Mr McAvoy. We froze for a few seconds. I didn’t hear the question.

At page 103 - - -?---Yes.

In the third full paragraph down starting with the words:

To collect the information.

?---Yes.

You make an observation about the assumption that you – that a person or you had made in relation to a notification – a child which had been – any child which had been the subject of a notification of being at risk from harm that notification to the Child Protection Authority. Can you see that sentence?---Yes. I can see the ABC. Yes. Is that what you’re referring to.

Yes. It is. Is that paragraph or that sentence in the subparagraphs that follow, is that - - -

COMMISSIONER WHITE: Mr McAvoy, we just need to get that scrolled down a little further. Thanks. Thank you.

THE WITNESS: You are referring to my comment that I could not have been more wrong in my assumption.


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MR McAVOY: Yes. I am?---Yes.

It appears to have been written to express some surprise at the – at what you found; is that an appropriate characterisation of how you felt about what had happened with respect to what you understood to have happened with respect to the notifications?---Yes. I was – it was an appalling departure from how you protect children. It was an appalling departure from practice in any jurisdiction that I had known about or worked in or read about. The very essence of being able to track whether a child is being neglected or to intervene early is to have the information, not just about that child but about the whole family. And here there were sources, the police kept a record of every child that had been subjected to violence, or was present when there was family violence, the hospital had a whole lot of records of children coming in with evidence of actual harm from neglect or abuse, or violence, and then there was the department whose job it was to decide whether these children needed to be protected. And, you know, what I put there as A, B and C is just the very fundamental basics. And I just didn’t know what to say, so I made very weak comment I could not have been more wrong. I mean, I was told by one witness – and I didn’t get a chance to verify it so it’s not in my report – this was a senior police officer from a regional town – told me that from the town this police officer was in there with were 3000 reports by the police about children who had either been subjected to violence or were present when there was violence in the house. That was sent to the intake service and I did say in my report, and I gave one example, of seven notifications and only one had been recorded. But there were 3000 of these according to this police officer. But because I didn’t get a chance to verify it I hadn’t included it in the report. But, you know, to think that this officer who had no reason to make this information up could tell me that, and to find that there was no record of notifications, there was no record of what family some of them came from, no record of their siblings’ notifications, and that information was not accessible. And, once again, if you go back to the chart on page 25 it is absolutely essential because the starting point of any assessment or triage where a child is at risk of harm is information about the history. So for it not to be available, to me it was just unbelievable. Incredible. It was – I just couldn’t believe it. I still can’t. But it’s – the evidence was there. It was not happening.

If I can now take you to page 110.

AVL CONNECTION LOST

COMMISSIONER WHITE: We may have lost connection.

MR McAVOY: Commissioner, I notice the time. I don’t have very many questions left.

COMMISSIONER WHITE: I was proposing at least we might sit on a little longer. See how far we can go. Unless there’s a problem with reconnecting. Can I just ask for an indication whether any counsel wish to ask questions of Ms Richards.


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MR McAVOY: I can indicate, Commissioner, that I spoke to my learned friend, the Solicitor-General, and indicated that Ms Richards will be available for cross-examination later.

COMMISSIONER WHITE: That would suit you, on the same basis as Ms Mitchell.

MS BROWNHILL: Absolutely, your Honour.


MR McAVOY: And that invitation is extended to other counsel, of course.

COMMISSIONER WHITE: Rather than waste time by adjourning, I thought we might just stay here just in the off chance that you pay the Telstra bill and we can get reconnected.

MR McAVOY: Well, I would have to look to my learned co-counsel.

MR CALLAGHAN: I’m looking at the Secretary.

COMMISSIONER WHITE: Are we back on?

MR McAVOY: Ms Richards, can you hear me?---I can hear you.

COMMISSIONER WHITE: We are back connected. If you’re more comfortable standing up, that’s fine by us, Ms Richards. We won’t be much longer, I understand from Mr McAvoy?---Thank you.

Thank you.

MR McAVOY: Ms Richards, I asked you to turn to page 110 of your report before we lost connection?---Yes.

I’m interested in your observations regarding the abuse/neglect unsubstantiated terminology. From the records you observed, it appears that you had some concerns about the use of abuse/neglect unsubstantiated in the central in take process. Could you just explain - - -?---When I looked at the national statistics which are published by the Commonwealth government each year on child protection, there is a national data base, common reporting from all jurisdictions and they have this category Unsubstantiated Reports. I had assumed that that meant, as it does in the normal ..... which – that there had been some investigation and that the information provided proved to be unsubstantiated. There was, however, a witness that we spoke to who was from the intake service and she had come from interstate shortly before we interviewed her. And she said that she was quite shocked to find that in the Northern Territory records of the Child Protection Unit the words Abuse or Neglect Not Substantiated simply meant that at the end of three months as the notification had


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come in if they hadn’t reached it because they were overloaded, or if they hadn’t been able to contact the child or the family because they were moving around, or if it had been referred out to one of the regional work units and that work unit had not had time to reach it because it was overload, it was entered as abuse/neglect unsubstantiated. So I considered that those statistics, what was happening to the number of notifications, were inaccurate. But it would have been an enormous undertaking to analyse to what extent that was so.

And immediately under the paragraphs – those paragraphs under abuse/neglect unsubstantiated you have made a recommendation to the Child Protection Authority about the use of that terminology?---Yes.

And that it only be used where the Child Protection Authority has carried out sufficient investigation to be positively satisfied that the child the subject of the report is not at risk of harm or neglect or abuse. Do you know if that recommendation has been adopted or implemented?---I don’t know, but it’s the same recommendation that had been made by a previous child protection expert, Jay Tolhurst, and I note from the response to the recommendations that the Child Protection Authority agreed with that recommendation. And that’s – I’m sorry, I can’t put my hands on it just at the moment. But they certainly agreed by that.

I have got just a few more questions for you, Ms Richards. If you look at page 111 of your report, and then over the next five pages through to page 116. It’s a – what could be referred to as a case study on the life of a child by reference to that child’s interaction with the Child Protection Authority. Is that an appropriate description?---Can I reframe it?

Certainly?---It is a description of a child’s life as known and recorded to the Central Intake Service for those people named, they are all from the same family. Their names, of course, are fictitious. And that’s – see the whole point of page 111 to 117, as you pointed out, is if you take the criteria – and this was the service’s own criteria, as set out on page 109 and over to 110, tear that page out, hold it in one hand as you read these stories, and the point I was trying to make was that in so many of these cases every one summary of these indicators of harm and abuse and neglect appear in the records such as they were of the intake service.

Yes?---And what happened, who knows.

So if we take the first one of – I understand that it’s a pseudonym, Jared Norton born 1999, page 111, and we look on page – go to page 112, 12 March 2007 toward the bottom of the page, shows the fourth interaction. And then on the next page it shows the outcome?---Yes.

And the outcome listed for that interaction is that the Community Care Information System file review recorded that the child protection report was not investigated as allegations did not constitute harm. And there are incidents – all of the incidents in respect of which that child has come to the attention of the Child Protection


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Authority are recorded in this life story. Is that correct?---Yes. They are. And while we are on this page, perhaps I can refer back to something that I told the Commission. I mentioned to you that we got documents and then we got what was called a spreadsheet giving further information. But the source of that information was not in the files or the records or the database relating to those children. And in – if you look at this – where we are looking now, 113, under the heading Outcome. It starts with the CCIS file review. When I referred to that spreadsheet that gave us information about outcomes and other information, but wasn’t in the files, that’s what I was referring to. That was a separate document. It was the CCIS file review was a separate document created by the department for this investigation by the Ombudsman and the information in Outcome has come from that file review. And what that means is someone answering the phone about a notification would not have known from the original records anything about that outcome. So if you are reading this report, wherever you see the CCIS file review you will know to what I’m referring. Sorry. But I think it’s important to understand that, you know what this report really means.

Thank you. And then if we turn to page 114, we see an entry for 17 March 2008, which is the seventh incident?---Yes.

And the outcome is neglect unsubstantiated?---Yes.

26 August 2008, the eighth incident: neglect unsubstantiated?---Yes.

February 2009, the ninth incident: the outcome is neglect unsubstantiated?---Yes.

And then that continues on. If you can turn to page 116, the 14th interaction is on 27 July 2009?---Yes.

And it’s another police notification?---That’s correct.

And the assessment is “Proceed to investigation of a child concern response”?---Yes.

The outcome, the matter was allocated for an investigation which at the time of the report had not commenced five months – some five months later?---Yes. And the very first part of my report explains that the time could have ..... in which such an assessment should have been investigated, was I think 21 days.

And then you make some summary of the police history as the final inclusion on page 116?---Yes. We sent the 61 names that we had eventually identified to the Police Department, along with any names we had for carers or family, and we asked for the police records relating to any of these children, their families, relatives, or carers. And then we looked at the end of each these sections referring to the child protection records relating to that child. We have set out separate information under police history which was provided by the Police Department.


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But nevertheless the history of 95 involvements with police between 2006 and 2009 when he was 10 years old speaks volumes in itself?---Yes. Well, once again, this adds credibility to the statement by the witness from the regional town that there were thousands of reports being made by the police to the intake service that have never been entered. Because as you will see the intake service records refer to 14 notion notifications but there are 95 involvements with police over a three-year period and we never had time to sit down and do a crosscheck of, you know, which ones hadn’t been included. That was just an impossible task because there is no compatibility for searching between the police records and the child protection records. It all has to be done manually on paper. But one would assume that there probably had been other notifications by police out of 95 involvements which would have gone to the intake service. I mean, that’s – I can’t prove that but that’s certainly what I believed.

Thank you?---It was the probability.

There are similar reports about children to the one that’s named Jared Norton which continue on from page 116 through to page 206 of the report; is that correct?---Yes. That’s correct.

Some of those stories are longer and some are shorter?---Yes.

But together do you – do they paint a picture?---Well, I think they do, which is why I say if you – protection of the intake services own indicators of harm, which are set out in pages 109 to 110, I think you will find that in each of those stories there are factors which the intake service, the Child Protection Authority say are indicators on neglect or harm to children. And if you look at the outcomes and what was happening with what was done with these notifications, and you look at the factors that are present in these stories, and they are not complete stories, by no means, we know that, you have to arrive at the conclusion that these children are not being served well by the services that are meant to be protecting them.

Thank you, Ms Richards. That’s all the questions I have this afternoon.

COMMISSIONER WHITE: Thank you very much, Ms Richards, for your assistance to the Commission. As you might have picked up in the course of discussion, an opportunity should be afforded to some of the parties to ask you some further questions by the representatives and we will hope that you will engage with the commission at a mutually convenient date sometime in the future to do that. It won’t be tomorrow because we have got another program of witnesses already arranged. So thank you for your assistance and we will hear from you again. Thank you?---Thank you. If I might just indicate to those making the arrangements, I’m going to be away from Friday the 14th until Monday the 17th. So that’s this Friday to the following Monday.


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Yes. Thank you. I think it might be a bit further into the future than that, that’s contemplated. But thank you for that indication. Mr McAvoy, I think we might adjourn for the day now.

MR McAVOY: Yes, Commissioner. There is nothing else that I have.

COMMISSIONER WHITE: No. And solicitors instructing might just give some indication to the witnesses who thought they were coming this afternoon and those that are coming tomorrow about what will happen.

MR McAVOY: Yes. I think many of those calls have already been made, Commissioner.

COMMISSIONER WHITE: Right. And those at the bar table, perhaps, too, someone can let them know which witnesses you expect to have in the morning so they can expect to be ready. Thank you. Thank you, ladies and gentlemen. Can you adjourn until 10 o’clock tomorrow morning, please.

MATTER ADJOURNED at 4.26 pm UNTIL WEDNESDAY, 12 OCTOBER 2016


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Index of Witness Events

MEGAN MITCHELL, AFFIRMED P-15EXAMINATION-IN-CHIEF BY MR CALLAGHAN P-15CROSS-EXAMINATION BY MS BROWNHILL P-36CROSS-EXAMINATION BY MR BOLTON P-38CROSS-EXAMINATION BY MR O’BRIEN P-41CROSS-EXAMINATION BY MR LAWRENCE P-45CROSS-EXAMINATION BY MS GRAHAM P-55

THE WITNESS WITHDREW P-57

CAROLYN ANNE RICHARDS, SWORN P-58EXAMINATION-IN-CHIEF BY MR McAVOY P-58

Index of Exhibits and MFIs

EXHIBIT #3 INDEX OF REPORTS P-4

EXHIBIT #4 STATEMENT OF MEGAN MITCHELL WITH TWO ANNEXURES

P-15

EXHIBIT #5 BUNDLE OF BINDING INTERNATIONAL HUMAN RIGHTS TREATIES RELEVANT TO CHILDREN IN DETENTION TO WHICH AUSTRALIA IS A RATIFYING PARTY

P-20

EXHIBIT #6 INTERPRETATIVEMATERIALS OF HUMAN RIGHTS INSTRUMENTS

P-21

EXHIBIT #7 BUNDLE OF RELEVANT INTERPRETATIVECOMMENTS

P-21

EXHIBIT #8 LETTER DATED 22/03/2016 P-28

EXHIBIT #9 OPTIONAL PROTOCOL P-32

EXHIBIT #10 STATEMENT OF CAROLYN ANN RICHARDS AND ATTACHMENT

P-60

.ROYAL COMMISSION 20161011 P-83©Commonwealth of Australia

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