transcript 17 march 2017 web viewthose statements are detailed ... an absence of documents recording...

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TRANSCRIPT OF PROCEEDINGS

O/N H-762179

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

ALICE SPRINGS

9.05 AM, FRIDAY, 17 MARCH 2017

Continued from 16.3.17

DAY 16

MR P.J. CALLAGHAN SC appears with MR T. McAVOY SC, MR B. DIGHTON, MS V. BOSNJAK, MR T. GOODWIN and MS S. McGEE as Counsel AssistingMS S. BROWNHILL appears with MR C. JACOBI for the Northern Territory of AustraliaMR P. O’BRIEN appears with MS C. GOODHAND for Dylan VollerMR D. WOODROFFE appears for North Australian Aboriginal Justice Agency and BEMS F. GRAHAM appears for the Central Australian Aboriginal Legal Aid ServiceMR S. O’CONNELL appears for AVMR A. GEORGE appears for Harold MorganMR F. TUSCANO appears for CA

.ROYAL COMMISSION 17.3.17 P-1301©Commonwealth of Australia

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COMMISSIONER WHITE: Ms Brownhill.

MS BROWNHILL: Commissioners, before the next witness has been called, I just seek to articulate, perhaps in a way I haven’t done as clearly as I should have, what the Northern Territory’s position is and has been in relation to the witnesses that are giving their evidence in the course of these hearings. The approach can be broken down to three different categories of witnesses, if you like. The first category is where the witness is a person for whom we act; generally speaking, officers or employees of the Northern Territory Government, or former employees and officers. In relation to their witnesses their evidence has been reduced to a statement that we have provided to the Royal Commission and it’s that statement which then becomes tendered as their evidence-in-chief, if you like. Those statements are detailed and comprehensive, so we see that there’s nothing to be gained by eliciting further oral evidence from them. So that’s been our approach in relation to them.

COMMISSIONER WHITE: Yes. Yes. I understand that.

MS BROWNHILL: And the second class of witnesses is where they are vulnerable witnesses who give evidence before the Commission. In relation to them we are complying with the process that has been established by the Royal Commission, namely we gather responsive statements and/or bundles of contemporaneous and other documentary records. We provide those to Counsel Assisting with a detailed list of matters for cross-examination. And those matters are a response to the more serious of the allegations which are contained in the vulnerable witness’s statement, and those matters also raise issues about the vulnerable witness’s credit or the reliability of the evidence that they give.

Now, by virtue of the Royal Commission’s process we obviously have no control over the questioning that is made of the witness in relation to the topics that we identify or the way that the questioning is undertaken. Those are matters, obviously, for Counsel Assisting. But it should be understood that we will be making submissions about the extent to which a particular witness’s evidence is tested in relation to one or more of those topics.

COMMISSIONER WHITE: Yes. I think we understood that, particularly from observations you have made from time to time, Ms Brownhill. I certainly didn’t think it was going through to the keeper, as it were.

MS BROWNHILL: I’m very glad to hear that, Commissioners.

COMMISSIONER WHITE: Yes.

MS BROWNHILL: The last class of witnesses is where the witness is a non-vulnerable witness, an adult witness or whomever, for whom we don’t act. Generally speaking, those witnesses give evidence about their opinions or views about certain aspects and matters. We don’t see that cross-examining them about

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those views or about their opinions in any way really assists the Commission’s work, and we don’t see that self-serving or self-promotional-type questioning otherwise assists the Commissioner’s work. So we are not engaging in that either. Obviously it’s a matter for the Commission as to whether the views or opinions of the particular witness are well-founded or not.

COMMISSIONER WHITE: Yes. Thank you.

MS BROWNHILL: That’s our general approach.

COMMISSIONER WHITE: We assume that should – what we might classify very loosely as an expert witness, if the Northern Territory had a view that a different expert should be put forward then you would have done that.

MS BROWNHILL: Precisely.


MS BROWNHILL: Thank you. I just wanted to make that abundantly clear.

COMMISSIONER WHITE: Yes. Thank you. And that’s helpful to do that, I think, to remind everyone of the position that the NTTG is taking. Thank you.

MS BROWNHILL: Thank you, Commissioner.

COMMISSIONER WHITE: Thank you. Yes. We’re obliged to you. Thank you. Mr McAvoy, are you going to call Professor Rynne?

MR McAVOY: I will in just a moment, Commissioner. I just have one thing to add in relation to the comments from my learned friend. My understanding is that the Solicitor for the Northern Territory has not made applications to cross-examine witnesses. Now, that may be in an effort to observe the spirit of the protocol, the protocols in relation to vulnerable witnesses, but they haven’t been made and that’s a matter for the Solicitor for the Northern Territory. They are not obliged to ask to seek leave. So it’s not the case that they have sought leave and it has been denied. That’s the only point I need to make, Commissioner.

MS BROWNHILL: I wasn’t suggesting for a moment that we have been denied leave. The Commission’s process, as I’m sure the Commissioners well understand: in relation to children, there is no option for us to cross-examine the policy and the guidelines says children will be only examined by Counsel Assisting.

COMMISSIONER WHITE: Yes. You can ask for certain topics to be covered.

MS BROWNHILL: Exactly. And that’s exactly what we have done.

COMMISSIONER WHITE: And that’s what has happened.


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MS BROWNHILL: We have taken the same approach in relation to vulnerable witnesses who are adults, generally speaking, because they are still young adults. They are – we accept, for the most part their vulnerability. And in addition we have made written submissions about reasons why we are not in a position to make application for cross-examination.

COMMISSIONER WHITE: Yes. I understand that. Thank you.

MS BROWNHILL: Thank you.

COMMISSIONER WHITE: I think that’s clear to Commissioner Gooda and I what the position is with the Northern Territory Government, Mr McAvoy. Thank you.

MR McAVOY: Thank you, Commissioner.

COMMISSIONER WHITE: And, of course, as you know, we actually make decisions about leave and they are done on the recommendation of counsel, but we convey those through counsel, those decisions, to the various parties with leave. Thanks.

MR McAVOY: Thank you, Commissioner. I call Associate Professor John Rynne, please.

<JOHN RYNNE, SWORN [9.11 am]

<EXAMINATION-IN-CHIEF BY MR McAVOY

COMMISSIONER WHITE: Thank you, Professor Rynne. Please be seated. We are aware that you have been delayed in giving your evidence from the time that was indicated to you. We apologise for the fact that you have had to wait around, although Alice Springs is a nice place to wait?---It is. No problem.

Thank you, Mr McAvoy.

MR McAVOY: Thank you, Commissioner. If the witness can be shown his statement, please.

Professor Rynne, do you recognise the document on the screen?---Yes.

Is that your statement?---Yes.

It’s your signature that appears on the bottom?---Yes. It is.

.ROYAL COMMISSION 17.3.17 P-1304 J. RYNNE XN©Commonwealth of Australia MR McAVOY

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And if we turn over to the final page, page 7: that’s your signature that appears on the final page?---Yes. It is.

And the statement is true and correct to the best of your knowledge and belief?---Yes. That’s correct.

I tender the statement of John Rynne.

COMMISSIONER WHITE: Yes. Professor Rynne’s statement is exhibit 94. Thank you.

EXHIBIT #94 STATEMENT OF PROFESSOR RYNNE

MR McAVOY: Professor Rynne, you have set out at paragraph 5, and – paragraph 5, your experience and expertise in relation to criminal justice systems; that’s correct?---That’s correct.

And in paragraph 6 of your statement you talk about the work that you’re currently doing at the Griffith Youth Forensic Service?---That’s right.

From the outset, it should be said that most of your work has been in the adult correctional space that’s correct?---That’s correct.

But there are aspects of your work that are readily transferrable to the youth detention space?---Indeed. Both institutions – hospitals, a whole range of institutions are what Gresham Sykes called “total institutions”, and that means that they control every aspect of a person’s life. Prisons and detention centres are the ultimate in controlling or total institutions.

Thank you. One of those areas which is easily transferrable is covered in paragraphs 33 to 35 of your statement, pages 6 and 7, where you discuss detention quality?---Yes.

Can you explain what the concept of detention quality is?---Detention quality is – it’s a measure of the social context or the social climate within a total institution. It’s a international measure of performance. It’s used in determining whether contracts or determining whether key performance indicators are met, whether certain standards are provided. It’s a measure of the moral performance of a prison, so it includes elements like respect, humanity, decency, safety, security, health, and wellbeing. And institutions are measured on these contexts and that have to be delivered within professional total institutions. It’s an eye into those aspects of incarceration that can’t be normally seen.

And so yesterday you were in the hearing room during the morning?---Yes.


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You heard the evidence of a vulnerable witness named BY?---That’s correct.

And you heard some of the evidence of his grandmother?---Yes.

CA?---Yes. The second half. Yes.

If we can put the theory of detention quality measurement into a factual framework, what favourable qualitative factors could you identify from the evidence that you heard yesterday morning?---None.

Okay. What unfavourable qualitative factors could you identify from that evidence?---I won’t go in – I thought about it, actually, as I was listening to it and then later made some notes for myself on prison quality for some of the elements. If we looked at respect – and this is dealing only with that evidence from that witness.

Certainly?---That witness was treated with no respect in terms of the way he was treated during the whole process, as he described it. There was no decent – there was no humanity in the way he was held. Like, he described being chained or handcuffed to the fence. That also applies to – there was a lack of total safety. He complained of being – getting numbness in his shoulder from being restrained in the way that he was restrained. The way that he was lifted is not a common control and restraint – control and restraint technique and certainly not a professional control and constraint – control and restraint technique that is associated with most detainees and prisoners when they – when it’s needed and required. The – well, I suppose the only thing was that he was secure, however he was secured in inappropriate ways. His wellbeing was not looked after in any – on that basis of that evidence. There was no consideration for his wellbeing at the time and, more importantly, later. It just continued to get worse. And also – and this relates only to Australia – the measure of prison quality is an international index used in the United Kingdom and in Australia in particular. There was – but for the Australian context there was no cultural consideration given.

Thank you. Are there then observations that you can make about the post-detention outcomes for Aboriginal detainees in low-quality detention environments as opposed to high-quality detention environments?---Absolutely. The research is unequivocal on prison quality. Low prison quality means that the uptake of any benefit from prison will be minimal or harmful. In other words, that – the experience of detention – well, there are two things: juveniles should not be put in – detention should be the measure of last resort, however if they do have to go into a detention centre it has to be one of high quality so the program uptake will be the maximum level. Where there is low quality then there will be no uptake in the programs that are on offer. So that’s education, behavioural change; those types of issues. And the research is unequivocal around that.

So to – just to expand on that a little bit, are you saying that it may be that there are very high quality service providers providing programs, perhaps, from outside of the detention environment coming in, but if the environment of the detention centre is of


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a low quality then the uptake and the benefit of those programs is likely to be reduced?---Absolutely.

At paragraphs 8 to 14 of your statement you discuss cultural competency and the need for special consideration where the prisoners are Aboriginal people. Is the cultural competency of the staff a factor in the quality framework and is this particularly so in the Northern Territory where the numbers of Aboriginal prisoners are so high?---Indeed. For the last 10 years my research has involved the study of cultural – of prison quality in Northern Territory and Western Australia amongst Aboriginal and Torres Strait Islander prisoners. And of the – there are eight dimensions or 12 dimensions, depending on which version of the prison quality index you use. There is an additional measure in Australia which needs to be included, which is the cultural or taking into account cultural considerations for Aboriginal and Torres Strait Islander people. Where those are limited then the detainee or prisoner is held at much greater risk. For example, if a – if a person becomes traditionally sick, so for some reason the person may not have been able to attend a funeral and that person then is sung and becomes traditionally sick as a consequence of that, then no western medicine is going to help that person heal. It needs a traditional healer to be able to come in and do what’s required to remove that traditional sickness. Now, that’s just one example of a multitude of special considerations that need to be taken for cultural people, or traditional people, depending on where they are from. You get individual variation depending on the region or language group, you get things for – in particular for juveniles. A juvenile could be going through lore. Father Brian McCoy talks about – who is a Jesuit priest who spent 20 years of his life working with Aboriginal people in the Kimberley – talks about up to a certain age, men, or boys, rather, are held by their mothers. In other words the mothers look after the child. At a certain point it becomes where the child – the boy – will be held or moved to the person responsible to take that person through lore. Now, it’s not age related. There are people in the juvenile institutions that will begin the process of being held or taken through lore. If the institution doesn’t respect at what stage that person is being held, or taken through lore, then it can cause incredible shame and shame for Aboriginal people has far more consequences than shame for a non-indigenous person. For example, strip searching is one of the most shameful experiences that a person going through lore can experience, or a person who has been through lore. It’s unlikely in juvenile detention centres that the person will be fully through lore but they could have progressed a long way in the process. And, in fact, in a functioning juvenile detention centre the process of lore can still – elements of lore can still be used or developed. So there are a whole range of elements of traditional factors that need to be considered.

There are two questions that spring from that answer. Firstly, do I understand you to say that where the detention environment is not one which is culturally competent, then the uptake of other programs is likely to be diminished, where the inmates are Aboriginal people?---There are two sets of rules for Aboriginal people in prison. There are the western rules, or the rules that the centre is run by, that they need to adhere to, and there are a second set of rules, and those are the traditional rules. Now, it depends on which rule is most important to the person as to which one they


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will take. So in taking one rule, if it could be pay-back or if a person is being humbugged, being asked to fulfil some requirement, then the traditional rule may override the western rule, which then could cause a breach.

Thank you. The second question is – relates to whether you hold a belief that young detainees in detention centres, young male detainees, should – their attendance at ceremony should be facilitated where possible?---Absolutely. Prisons are structurally racist and they continue the process of colonisation. We should be making every effort to make sure that we decolonise the process within our structures of government. And where people are – where people should be – Aboriginal people or detainees should be given the chance to attend ceremony, then they should be allowed to attend that ceremony. It can be done in the prison. It can be as simple as a yarning circle. There are a whole range of elements that can be done within the institution. The visiting elders program - - -

Look, if I can stop you there, would you go so far as to say that detainees in the youth detention facility should be facilitated to return to country to participate in man-making ceremonies if that’s the appropriate time?---Yes.

Thank you?---If their growth is stunted the consequence will be significant.

Thank you. Now, I suggest to you that people – there is much discussion about the notion of cultural competency. In your experience, is the common understanding of cultural awareness or cultural competency sufficient when you’re dealing with trauma-laden Aboriginal prisoners and especially youth?---Cultural awareness and cultural competency are two different things. A person can sit down for a cultural awareness training and be told this is what – how Aboriginal people live. Cultural competency implies that there is an understanding of how the person will – what is important to that Aboriginal person depending on their language group, or their skin group or their moiety, how they should be treated, what’s important in their development, how they should be dealt with. So those elements of the culturally competent officer are significantly different to the cultural awareness. Cultural awareness just simply means that – well, it’s taking on the notion that Aboriginal people are all the same and therefore if you do a generic program you will learn it.

Can we understand from your answer then that a culturally competent person, appropriately culturally competent person, is – may be able to properly deal with trauma-laden detainees?---Indeed. For example, depression is experienced differently for indigenous people than it is for non-indigenous people. Often – say, for example, a – there has been a death in the family and a person goes into some sort of grief-based depression, but goes beyond the normal one, particularly if the person has not been allowed to attend the funeral, then an episode of depression is not unexpected. Now, that depression is experienced as a somatic sensation, often described as being sick in the stomach or – whereas a non-indigenous person will talk about their hopelessness and their sadness, their levels of just lack of motivation. Aboriginal and Torres Strait Island – Aboriginal people in particular talk about they feel sick in the stomach, they might hallucinate and hear the voice of the person that


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has died. Well, if those two symptoms were presented to someone who was not culturally competent, then they would not understand what was going on. In fact, I have had that very experience. I’m a psychologist by training. I was in a remote prison one night; I was the only person left. The prison had shut down, I was still doing research, and an Aboriginal person was ill, became ill. They asked me, knowing I was a psychologist – they were worried about him suiciding. They asked me to go and talk to him and within five minutes of me going there, it has been the first time I had ever happened to me, I just knew there was nothing I could do for this person and I have been a psychologist for 20 years at that stage.

Thank you. I was going to put to you a general proposition about the notion of generic cultural competency courses and how sufficient they are in dealing with, for instance, detained youths or adults in the Northern Territory. But I understand from your answer to that last question that you are saying that the – to be culturally competent it must be relative to the subject that you are dealing with?---There are elements of Aboriginal culture that are consistent across all groups. So there are some basic parts. But if we want to be serious about cultural understanding we need to know what the song lines are; we need to know the dreaming stories. Some officers will actually go out of their way and try to find out what they are so that they know how to deal with the child or they know how to deal with the prisoners. There are some absolutely marvellous officers that work in the Northern Territory system and other systems across the country that I have worked in. However, there are other officers that not only aren’t interested, dismiss the – dismiss these factors and don’t or won’t even consider them being culturally competent or of any great importance. So it’s a matter of knowing not only what’s appropriate for an Aboriginal person, but how far you want to go into find out what is the case with this Aboriginal person: what is their background; who are their relatives; are their relatives in the detention centre with them.

So competency might in that case involve knowing when not to proceed further?---Yes. There could be – normally there is an unwritten rule that where there are issues on the outside, when you come into prison or into detention those issues will be left at the gate. However, sometimes those situations do boil over in the institution and there is trouble. So if there is a cross-over of, say, language groups who are being accommodated together, that shouldn’t be accommodated together because of traditional reasons, then that may – it doesn’t always – but it may cause some problems.

COMMISSIONER WHITE: Professor Rynne, could I ask you about the marvellous officers in detention settings that you have referred to. Have they achieved that cultural competency through their own efforts as far as you can say, or as a consequence of having received some formal training?---Commissioner, of their own commitment to wanting to do the best thing for that person. They actually go and sit down and talk and listen and try to understand what that person’s story is.

Is it something that can be the subject of a training course, as opposed to cultural awareness, about which of course there are quite a lot of courses offered. Can they


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be told about the pointers to look for?---Yes. They can. The Northern Territory have the best visiting elders program in the country. That’s where they bring in people from - - -

Is that in the adult prison?---That’s in – and also in juveniles. The same group of people do both. And that’s formed of elders and respected people from each of the different language groups, skin groups, or in some cases moieties. And it may include not only elders; it could include respected people. Now, they can teach what’s required to the officers should they need to include specialist areas within the program. It might be as simple as – like, the Walparri area has got a massive number of people in it. It could be as simple as just having the – one of the respected people or one of the elders spend a couple of hours going through – look, this is the dreaming, this is the stories, this is how this person should be treated. This is what stage of lore these people are involved at. That’s if we are going to put in place a system that does no harm and a system that actually might benefit the person.

Yes. Thank you.

MR McAVOY: And I suspect, Professor Rynne, that it goes without saying that for individual officers to take the step of learning more about their detainees or particular detainees the environment has to be conducive and supportive of them pursuing that interest?---Yes. It does.

In any event?---Yes. It does. I have heard officers criticised for being – for making the effort to be aware, to be criticised by other officers. It’s not – they are not castigated or anything for it, but they get, “Well, he’s just like that. He wants to know about the person”.

I want to ask you about paragraphs 15 and 16 of your statement. You have commented on the importance of employing Aboriginal Youth Justice Officers and the success just now of the elders program, you have discussed that. Is it the case that a largely Aboriginal or Aboriginal and Torres Strait Islander workforce has a range of effects, including improving communication between a largely Aboriginal detainee population and the staff. That almost goes without saying?---Yes.

And, secondly, what effect does a change in staff in the diversity have on improving the overall culture of a facility?---The education aspects of the prison or the detention centre are central to – well, I will go back a stage. I have spoken to more than five people who don’t know why any are in the institution that they are in because of lack of understanding. They knew that they had to go to court, they knew they had to do what they were told by the person that was sitting up on the bench and they did that. So there was a lack of language and we heard yesterday of language is not a first language, the consequences of that. If education programs are not matched at those levels then there is a problem of getting through basic education. And when the problem becomes a basic education difficulties, that leads to shame; shame then leads to acting out. So that the person can play up, it’s a consequence of not wanting to be seen as being incompetent during their education course and they will play up.


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Okay.

COMMISSIONER GOODA: Mr Rynne, we heard yesterday about kids in detention being told just to speak English. What sort of effect would that have on a child in detention, or even an adult?---Commissioner, the effect is that – the first effect is that they struggle. It will be a form of pigeon English or Creole. And often what happens is the person just won’t talk. They will just go along with whatever has happened. They talk to their relatives that are in the institution with them, or they will talk to their friends, but they won’t talk to officers and they won’t talk to staff. So if they have a need, because they don’t want to be shamed or be embarrassed by not being able to get the words out, they will often not talk. I have had numerous people decline interviews because they don’t want to be shamed or they don’t want to go through the process of having another white person ask them more questions that they don’t understand. There are cultural issues as well as – “Why should we learn a language that’s not our language? Why should we be forced to enter into using your language as opposed to our language?”

This was in the context of people – detainees using language to disrespect each other and there was an obvious disrespect. Would be a better way of dealing with that rather than just say, “Only speak in English”?---They were disrespecting staff?

Each other?---I suppose it depends on where it leads to, the eventual outcome of that disrespect. And it goes into the group of Aboriginal people having to deal with each other in Aboriginal and Torres Strait Islander ways as opposed to having to deal with each other in western ways. I haven’t described that very well. A gadachi man, a witch doctor, healed a fellow of – took a spirit out of a fellow one day who was ill. Now, he had to be paid for that. Now that broke – that was all done in language. It broke a number of prison rules because it meant the payment – prisons aren’t allowed to exchange goods and this person had to be paid, which meant it was a commercial operation, and he was paid with an old hat. So that broke a prison rule. Now, that was done in language. It couldn’t have been done in western language. It could only be done in traditional. I don’t know if I have answered that.

It – like I get the bit about being disrespectful and having a classroom situation that provides a learning environment, but I wonder if just telling people to speak English is the only way to deal with that?---In my view, absolutely not. It just reinforces loss of language. It’s not like it’s dangerous.

COMMISSIONER WHITE: But, Professor Rynne, what if on the assumed facts that were discussed yesterday by our education panel it was thought that the detainee using his language was in fact insulting or being rude to or about one of the teachers or Youth Justice Officers in the classroom. You would say how do we know that; well, they seem to be pretty persuaded that that’s what the tenure of it was?---Sure.

That was the perception that the teacher had?---Yes. The teacher could ask, “What did you say”. It’s just as – I mean, there’s no problem with saying, “What did you just say”. And I’m sure that the kid – that the young person would say - - -


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Probably wouldn’t answer?---Yes. But, I mean, there is nothing to stop someone just asking, “What did you just say”.

Yes?---In fact, I have had many discussions and great discussions without translators where we work it out. You can work it out. You can find a way through.

What – perhaps because you have mentioned it, what do you think the role of interpreters or translators – no, I think interpreter is the right expression – in a juvenile prison setting or juvenile detention facility setting for countrymen who clearly don’t have English. Would you think that that would be an appropriate resource to be able to tap into?---Absolutely. In court – it should start from the moment they go to court. Follow them through the – because the first part of incarceration when they get through to – once they have been sentenced, they need to understand – one of the things that just astonishes me is the number of people that are in the institution who have no idea why they are there.

Yes?---So we have to – and the most important thing to a detainee or a prisoner is, “When do I get out?” Now, if they don’t understand why they are there and when they get out, they instantly have a heightened state of anxiety. So the translator has to be there on site from the moment the sentence is administered. Then they have got to go through the process of admissions at the prison where they are given their prison rules. If you listen to most prisoners, and there was – the second young person who was on the screen yesterday morning, I forget his name, I think it was him, who mentioned that how he found out – or how the place worked was through his mates. Yet the admissions process where they are to be told “This is what this mean, a yellow shirt means this, a red shirt means this, these are the processes of how you roll through it”, that has to have interpreters involved. If we are serious about making sure that the person wants to know how they move through the system. If they rely on their – if they relied just on their friends or on other relatives that are in the system, then they are a long way behind.

COMMISSIONER GOODA: Thank you.

MR McAVOY: Professor Rynne, are you able to make any observation about the success or otherwise of attempts to recruit Aboriginal or Torres Strait Islander people into corrective services positions? Are you able to make any observation about the success of those programs?---Yes. All Australian Governments struggle. They are aware of the need to recruit Aboriginal and Torres Strait Islander officers. All of the governments struggle doing it. However, there are some that have been more successful than others. Northern Territory does – I think, has an active strategy in place to recruit them, but they are very hard to get because of reasons of family contact, potential humbug, not wanting to be put in a position where they are going to be clashing with their own family that are inside. However, having said that, the former Director of Custodial Corrections in the Northern Territory was an Aboriginal man and there are numerous Aboriginal staff that work out at Alice Springs prison and they get through and do a good job by setting the rules clearly. I have interviewed most Aboriginal staff in the Northern Territory and asked them how they


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get by in terms of if there are family matters, and they say that the way they do that is they make it clear from the very first day that this is their job and they will be separating their job from their cultural obligations. And if they can’t they will recruit another officer to do that job for them. Holding them – holding staff members, because it can be quite stressful, is difficult.

I just need to ask you a couple of short questions in relation to the material you cover at paragraphs 17 to 26 of your statement regarding consistent communication of administrative issues. You have spoken about that a little in a tangential way?---Sure.

If I tell you that some of the evidence before the Commission goes to the withholding or absence of information, such as that you may have heard from the vulnerable witness BY yesterday, how will the absence of information affect detention quality?---Prison riots occur because of administrative issues. They – people will live in the worst possible circumstances provided they know what’s going on. Now, withholding information and – where that young person was removed from a situation he wasn’t sure why, is an administrative issue. Had that young person been told, “This is the reason you are moving” appropriate control and restraint processes were put in place, professional control and restraint processes put in place. The person is given the breach notice, which is told, “You are being breached” either for 24 hours or seven days or whatever it is. The person may disagree with the breach, but at least they will know, this is the reason of why it’s occurring. Where there is no information being – coming forward then that lack of information instantly causes inflammation and acting out. And that is the start then – that could be the fuse that – that could be the light to the fuse of a riot, or certainly a person acting out. The research around the world is unequivocal that prison riots or trouble within a prison happens because of administrative breaches. Lack of information is perhaps the most important or the major cause of most administrative breaches.

And, so, going back to where we started with the discussion of detention quality - - -?---Yes.

- - - and the low quality detention environment leading to poor uptake of therapeutic beneficial programs?---Yes. Yes.

An environment where there is poor communication and administrative inconsistency, is likely to, in your view, lead to difficulties in access and uptake on those beneficial programs?---Indeed. Prisons operate – they are social institutions. They work on relationships between people. There are bars and security, and hand cuffs, but there are a lot more prisoners or detainees than there are officers. Now, if those detainees wanted to play up, they can play up, and it causes a lot of trouble. And the guards have got to react in a certain way. So the systems can only be managed via prison quality or social climate. The interaction of those officers. Where they are not – where those systems fall down or where they are not considered and where there is a punitive model, where the balance between punitive approach to prison and a welfare approach – or detention, sorry – and a welfare approach of


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rehabilitation, where the balance falls on the punitive punishment side without then administrative awareness, then there is going to be trouble.

Thank you. They are the questions I wish to ask from this witness, Commissioners. I understand that there are some applications to cross-examine, including from Mr O’Connell, who has been given leave for 10 to 15 minutes. And the representative for Mr Voller, a further 10 minutes. Thank you.

COMMISSIONER WHITE: Thanks, Mr McAvoy. Thank you, Mr O’Connell.

<CROSS-EXAMINATION BY MR O’CONNELL [9.52 am]

MR O’CONNELL: Good morning, Professor. I act for some of the young people who were in detention. One of the young people that I act for was detained in isolation in a poorly lit and hot cell for a period of 17 days. Do you have any comment in relation to that?---The Obama Administration introduced legislation that said it was illegal or that made it illegal for any juvenile detainee to be put into solitary confinement at all. So in the United States, the home that is all that’s wrong with Corrections, even there they will not allow a juvenile detainee to be put into isolation. The Mandela rules, which are the United Nations – sorry – the standard rules for guidelines for imprisonment, say that a maximum should be 15 days of isolation and solitary confinement. That’s 23 hours in, one hour out, for 15 days. So - - -

COMMISSIONER WHITE: And is that for adults or for all prisoners?---That’s for adults. Juveniles shouldn’t be put in there. The Beijing rules, I believe, indicate that juveniles should not go in at all. So anyone that’s put in – and it was in those cells that we saw yesterday, then that’s beyond deplorable.

Perhaps you could elaborate in answer to Mr O’Connell’s question the reason why isolation is regarded as inappropriate for young people?---The juvenile brain, in particular the pre-frontal cortex is not at a stage where – it is still maturing. It’s still processing information. Where you are in a situation where there is complete sensory deprivation and, for example, where the – I think it was your client who had the wet mattress and - - -

MR O’CONNELL: No. That wasn’t my client?---That sort of situation is just going to exacerbate the likelihood of post-traumatic stress disorder. There will be – hallucination is possible. Complete stunting of normal development. And suicide ideation to the extent of self-harm will be a likelihood.

COMMISSIONER WHITE: Thank you.

MR O’CONNELL: Professor, I have another client who was marked at risk on a number of occasions and as a consequence of that marking was locked into a room

.ROYAL COMMISSION 17.3.17 P-1314 J. RYNNE XXN©Commonwealth of Australia MR O’CONNELL

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alone for various periods of time. A young person who is upset in detention, who is then locked in a room alone, what are the chances of that, no matter how short that period of time is, of increasing their trauma?---Every case is different, but a young person that’s acting out is at high risk. If you put them in an isolation cell with – a Muirhead cell, for all intents and purposes, that means the cell will be lit 24 hours a day, there will be no external stimulation, high risk, high risk of – well, they are already acting out, so suicide ideation will be extensive. Presumably they will have suicide-proof garments put in with them, so they won’t be able to attempt suicide. They will be completely distraught. Post-traumatic stress disorder: as I just mentioned to the Commissioner, there a high likelihood of developing PTSD.

Would it also increase the risk of them self-harming or attempting to self harm?---Yes. I have seen prisoners that will bash their head against the wall and trying to kill themselves. So the way around that is to put a motorcycle helmet over their head so they can’t bash their head. I have seen different ways of – that people have tried to kill themselves in those situations. And what happens is the system monitors it so that they can’t kill themselves. So through situational control the person is unable to commit suicide. So it leads to this complete – complete destruction of normal thought. I can’t tell you how long that lasts for, or I can’t tell you how it’s remedied once the person does get out of the isolation cell.

COMMISSIONER WHITE: Well, Professor Rynne, is there an agreed way of managing a person who is showing all the signs of attempted self-harm, suicide?---There are several ways. Professional staff – the psychologist has got to be called straight away, instantly, and if it’s an Aboriginal person, the traditional healer has got to be brought in straight away, as soon as possible. The person could – it goes to how – if the person is acting out in their cell, if they are being violent, if they are spitting and attacking the staff, then with professional control and restraint techniques that person can be bought under control and then instantly there is a process and this occurs in three states that I’m aware of, that have processes that will – are called into play from the moment the person is put into the cell where they are going to be held for the period until they are seen by either psychologists, psychiatrists, or moved into a hospital. So there are ways around it. There are ways to deal with it.

Thank you.

MR O’CONNELL: Can I just follow on from the Commissioner’s question, Professor, and ask: are there ways of managing the situation without having to lock the person in a room by themselves?---Safety is always the first issue. Safety of staff and safety of the prisoner or detainee is the first consideration that always must occur. Now, if the situation can be controlled through appropriate control and restraint techniques to where the situation or the person can be calmed to a certain point – it’s potential that the person can’t be calmed. And they can be put into – there is a new sort of cell that has been developed where they are in isolation but the front of the cell is completely clear. So – and they are in – it’s in a Darwin prison actually. And there is a nurse on hand that can look at that person constantly and be


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in contact with that person the whole time. So it’s not as though they are just thrown down the back – I think the words were yesterday – and put into a cell and are completely isolated to make the situation worse.

But am I to understand your evidence that you would make every effort to calm the person before making a decision to put them into a locked cell?---Absolutely.

And you spoke about that isolation increasing trauma and risk of harm. Is that – are those risks increased even further when you are dealing with Aboriginal children?---Yes.

And why is that?---We remove – particularly – and I need to distinguish between city-based Aboriginal people and remote Aboriginal people. The single most important – not the single – something that’s incredibly important to Aboriginal people is their contact with the land. When we put them in juvenile institutions we are removing them from their land. We are removing them from all – if they are going through lore, we remove them from those processes. If they hold positions of responsibility in their communities, we remove them from that. We put them in these situations, we take them as far away from their land as possible and we lock them in a cell where they can see nothing. So they are completely vulnerable.

And would a close – closely related to that need to be in touch with the land is a need to have social contact; would you agree with that?---Yes.

And one of my clients was involved in an incident where a decision was made to cut off all her clothing, and that involved five Youth Justice Officers; a number of them were male. Would that kind of practice – would you expect that kind of practice to greatly increase the trauma experienced by the young person in detention?---Yes.

And do you think there is a better way of dealing - - -?---No doubt the person was acting out, so you would have to go back to the – this – there’s a very famous book written about situational control and closed institutions. And it talks about how - - -

Can you name the book?---That’s the name of it.

Sorry. What is it?---Situational Control in Closed Institutions, I think it is. And the situation would have started before it got to the point of the clothes having to be cut off. So it would have gone – if you look at just when the clothes are being cut off you’re not looking at the whole – you are not looking at the whole issue. It could have started one, two, three or four days ago when something went wrong and the problem starts to build. That’s when it should have been dealt with and dealt with in the appropriate way, before it gets to where a person is having to be held down and their clothes removed. Having their – being held down and clothes removed is not a professional control and restraint technique, it’s the result of poor and inadequate processes that occurred beforehand. So it’s just another sign of poor prison quality.


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And it’s a practice that you would expect would lead to enormous trauma?---Indeed. Absolutely.

And potentially lasting effects?---Yes. It will lead to PTSD.

Now, you spoke about traditional – the importance of traditional healers. When you – is it your experience that when you have raised that issue with governments you get resistance?---No. It’s interesting. The Northern Territory Government are one of the only two funding bodies in the country that fund my research. So they have – they were aware of the importance of these issues in developing it, but - - -

So we can expect in the near future in the Northern Territory that there will be Aboriginal healers - - -

MS BROWNHILL: I object to that question.

COMMISSIONER WHITE: Yes. Of course.

MR O’CONNELL: I withdraw the question.

THE WITNESS: It has taken - - -

MS BROWNHILL: Sorry.

COMMISSIONER WHITE: No.

MS BROWNHILL: The objection has been made.


MS BROWNHILL: Don’t answer that?---Sorry. Okay.

COMMISSIONER WHITE: Yes. Thank you. Thanks, Mr O’Connell. How are you going with your questions?

MR O’CONNELL: Yes. Nearly done, Commissioner.

Professor, you spoke – and I agree with you that there are a number of - - -

COMMISSIONER WHITE: I don’t think it matters whether you agree or not, Mr O’Connell.

MR O’CONNELL: Yes. Professor, would you agree as well as there being a number of guards that are very good with Aboriginal children, that there are also some guards out there that are overtly racist - - -

MS BROWNHILL: I object to that question as well.


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COMMISSIONER WHITE: Yes. Thank you. You can’t just ask such a broad question, Mr O’Connell. It has to be grounded in some particular identified institution or particular guards; something that would suggest that Professor Rynne, apart from a generalised answer, could respond to meaningfully.

MR O’CONNELL: Yes.

Professor, one of my clients gave evidence the other day that he had heard senior Youth Justice Officers call Aboriginal children from remote communities, “Dumb black kids”. Is that something you have ever come across before?---Yes.

And is that common?

MS BROWNHILL: Common to what? I object to the line of questioning. It is still virtually meaningless at that level of generality.

COMMISSIONER WHITE: It is. He might – and I don’t think we need to explore really with Professor Rynne on how many occasions he has heard racist comments made. I don’t think that’s helpful, Mr O’Connell.

MR O’CONNELL: Certainly, Commissioner.

Professor, would it be fair to say that if you have high quality detention but you don’t have high quality preventative and therapeutic programs, that you are still going to be behind the 8-ball, to speak?---You couldn’t have a high quality institution without having high quality programs.

And would you agree that at the moment the balance of government spending seems to be - - -

COMMISSIONER WHITE: In the Northern Territory?

MR O’CONNELL: In the Northern Territory.

It seems to be favoured towards correctional institutions as opposed to therapeutic and preventative programs.

MS BROWNHILL: I object.

COMMISSIONER WHITE: I understand the objection. You really do have to lay the groundwork for Professor Rynne being in a position to respond to that question.

MR O’CONNELL: I will move on.



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MR O’CONNELL: My final question, Professor, is I understand what you say about high quality detention. Can we go – are there any examples where we can go a step further and say that there are models available where we can do away with detention all together?---I don’t believe that you can ever move away from detention completely, but we don’t need to detain the number of people we are detaining. There are other community-based options that can be prioritised that will reduce the number of people that are in detention substantially.

And are you aware of particular models?---The Scandinavian countries in particular; they have very low rates of child detention. The Australian jurisdictions tend to be more punitive. The data came out – the latest ABS data came out yesterday and it shows that the rate is still increasing. So overall we are still getting more high rates of detention. The UK is about the same as us, but the best models are the Scandinavian models.

Yes. Thank you, Commissioners.

COMMISSIONER WHITE: Thanks, Mr O’Connell. Ms Goodhand?

<CROSS-EXAMINATION BY MS GOODHAND [10.10 am]

MS GOODHAND: Thank you. I can indicate I won’t be too long.

COMMISSIONER WHITE: I don’t ever know what a counsel means when they say not too long. It has sometimes been very wearisome, so I am sure you know the time limit.

MS GOODHAND: Thank you.


MS GOODHAND: Professor, given your expertise, are you able to say whether a specialised youth parole system is more appropriate rather than having one system that deals with adults and children?---In my current position as Director of the Griffith Youth Forensic Service we deal with juvenile sex offenders and we get recidivism rates as low as 2.8 per cent because of a parole system that allows us to work with juveniles in the community.

And given the high numbers of youth detainees in the Northern Territory that do identify as Aboriginal or Torres Strait Islanders, are you able to suggest or identify any additional measures in addition to a child focused parole system that may assist with those youths reintegrating into the community?---A lot depends on the community that they are going back to. I believe that the visiting elders program is the strength of this – the Northern Territory and the visiting elders program, if it – they are already overworked and they are already stretched beyond their capacity.

.ROYAL COMMISSION 17.3.17 P-1319 J. RYNNE XXN©Commonwealth of Australia MS GOODHAND

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But there are ways of building that program so it can be become part of the parole system and where young people are being held by their traditional – by the people that have traditional responsibility for them. So that could be integrated into the parole system, particularly for remote communities. It’s more difficult for city-based people because of the different attractions – alcohol, drugs, those problems that are less extensive out in the communities. So it’s a harder problem in city-based.

And what about through-care programs. Do they – are they something that you would also recommend in terms of that process of reintegration into the community?---Absolutely. The only problem is – and I have just finished this research – there are no through-care programs in the Northern Territory. NAAJA have a – the only – I shouldn’t say there are none; there is one NAAJA run in Darwin, and there are none in – none in Alice Springs. There is the BushMob, which is a wonderful program, but it’s not really through-care, it’s – it’s a form of through-care, I suppose, but it’s not very extensive. And certainly couldn’t deal with the numbers that come out.

Thank you, Commissioners. Those are my questions.

COMMISSIONER WHITE: Thanks, Ms Goodhand.

MR McAVOY: I understand Mr Tuscano has two questions. And I wouldn’t object to two short questions from Mr Tuscano, Commissioner.

COMMISSIONER WHITE: Thank you, Mr Tuscano.

<CROSS-EXAMINATION BY MR TUSCANO [10.13 am]

MR TUSCANO: Professor, I just want to – my name is Tuscano, I act for CA. You have spoken a little bit about PTSD. I just want to ask you two questions about PTSD. The first is, is there – or are you aware of research to the effect that trauma and trauma which leads to PTSD can cause permanent pathological changes in a developing brain?---Yes. Yes.

Can you explain something about what that research says?---I’m not a neuropsychologist, I’m a clinical psychologist, but the research and my understanding of it is that the pre-frontal cortex can be damaged up until the age of 22, 23. Where the stress is bad enough then that damage to the pre-frontal, which involves impulse control and other mechanisms, will be permanent and will then restrict levels of impulse control and acting out will become more of a consequence.

Thank you. You have already answered the second question I was going to ask, so I won’t ask any.

COMMISSIONER WHITE: Very economical, Mr Tuscano. Thank you.

.ROYAL COMMISSION 17.3.17 P-1320 J. RYNNE XXN©Commonwealth of Australia MR TUSCANO

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MR McAVOY: Thank you, Commissioner. I have no re-examination for this witness and I believe it’s appropriate for him to be released.

COMMISSIONER WHITE: Yes. Thank you. Thank you very much indeed, Professor Rynne, for your assistance to the Commission. It has been invaluable---Thank you.

<THE WITNESS WITHDREW [10.15 am]

MR McAVOY: If you could just give us one moment please, Commissioners.

COMMISSIONER WHITE: Your next witness is very efficiently waiting in the wings, Mr McAvoy. Are you ready to start with - - -

MR McAVOY: Yes, Commissioner. I call Gerald McCarthy.

<GERALD FRANCIS McCARTHY, SWORN [10.16 am]

<EXAMINATION-IN-CHIEF BY MR McAVOY

COMMISSIONER WHITE: Thanks, Mr McCarthy, please be seated---Thank you.

MR McAVOY: Good morning, Minister. My name is Tony McAvoy. I’m a Senior Counsel Assisting the Royal Commission. I have got some questions for you today. Do you have your statement in front of you?---Yes. I do.

You can see on the screen in front of you, on the computer - - -?---Yes.

- - - a document. Is that the – does that appear to be the statement that you have executed for the assistance of the Royal Commission?---Yes. It appears to be. I can only see the top of the first page but – yes.

If you just scroll down?---Yes.

And if we can just go to the last page. And you can see on the screen the last page of that document?---That’s correct. Yes. I can.

And that statement is true and correct to the best of your knowledge and belief?---Yes, sir. It is.

Commissioners, I tender the statement of Gerald Francis McCarthy dated 14 March 2017.

.ROYAL COMMISSION 17.3.17 P-1321 G.F. McCARTHY XN©Commonwealth of Australia MR McAVOY

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COMMISSIONER WHITE: Thank you. Exhibit 93. No. 95. I beg your pardon. Exhibit 95 for Mr McCarthy’s statement. Thank you.

EXHIBIT #95 STATEMENT OF GERALD FRANCIS MCCARTHY DATED 14/03/2017

MR McAVOY: Thank you.

Minister, you entered the Northern Territory Parliament as a member of the Legislative Assembly for the electorate of Barclay in 2008 and have been re-elected in 2012 and 2016?---That’s correct.

Before that you were a school teacher for 28 years?---Longer than that, 35 – 33 years.

During your time as school teacher you took leave and went to London to the Burough of Suffolk for nine months?---That’s correct.

And you were working in programs or schools for children excluded from the mainstream?---That’s correct.

And we see that from your statement. What year was that?---It was the United Kingdom school year of 1998, 1999.

And so after that you returned back to the Northern Territory?---That’s correct.

To the Barclay region?---Back to Tennant Creek. Yes.

Tennant Creek. And on your return you were involved in the organisation of five new schools to be opened in the Barclay region catering for disengaged youth?---No. You have got that a little confused. My teaching career: I actually founded five new Indigenous schools in the Barclay region. When I returned from England I actually was first recruited into the Learning Lessons Review. I worked on that review for six months in Darwin. I returned home to Tennant Creek when the government at the time, the CLP, the government at the time, closed that review down. I worked in the Aboriginal hearing program for two years and then due to successful lobbying over a number of years I achieved some establishment funding to start the first, yes, alternative education program for secondary age youth disengaged in Tennant Creek.

Yes. Thank you, Minister. Could you look at paragraph 9 of your statement. At paragraph 9 you say:

After this experience in the UK I returned to Tennant Creek and successfully lobbied government for the establishment of - - -


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COMMISSIONER WHITE: Mr McAvoy, I think we just heard that from Mr McCarthy.

MR McAVOY: I won’t press the question, Commissioner.

COMMISSIONER WHITE: Thanks.

MR McAVOY: Do you recall where those schools were located, Minister?---The Tennant Creek High School.

That’s one. The four others?---Now, counsel, is that how I should address you? It’s important to understand the context. I was recruited to the Northern Territory under the Commonwealth Teaching Service in 1980, to open the Epinara School, a pastoral property school on a cattle station south-east of Tennant Creek. From there I went on to found five Indigenous schools. Are you interested in those schools?

The question I’m asking: you have said that you have – you had lobbied government for the establishment of five – sorry – you had founded five schools. And I’m just asking where those schools were?---Yes. Sure. Epinara School, which is south-east of Tennant Creek. I went on to open Robinson River School, which is in the gulf country, east of Borroloola. I then went on to found three out station schools in Jilinjarra, Mijinburra, and Murramula on the Nicholson River land trust. Then as a principal of Borroloola for six years I established a new outstation school, founded a new outstation school at Bohemia Downs.

Thank you. And you – all those schools you founded, you visited each one?---I lived there, sir.

So you went there and lived there to establish the school?---Absolutely. And you might be interested: in five of those examples, there was no infrastructure. Myself and my family literally camped out to establish those schools.

Thank you.

COMMISSIONER WHITE: Were there some special features about these schools, Minister, that you were implementing at the time; they were different from what we would call mainstream schools?---It was an interesting era in education in the Northern Territory. The pastoral property schools are by far my favourite. It was a very structured time. I am now talking 38 years ago in terms of the first one, where there was a remote Aboriginal community that was living and working on a cattle station. It was a small family-owned property. I was the first non-Indigenous person that really was allowed into that structure and so on any one day all the children were at school and, might I say, in caravans. It was very primitive infrastructure. They were known as silver bullets. The children were at school. The women did lots of volunteering work around the station and around the store with great relationships with the family. The men worked in the stock camp. And it was a very, very memorable time in my life. Robinson River was very similar, although that cattle


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station had been handed back to the traditional owners at that time, as a pastoral lease. It was then converted to Aboriginal land trust later. But it was another interesting experience. But the Aboriginal people there had full control of the cattle station when I first went there to found the school. The Nicholson River were outstations and that was reflecting the land rights movement and we had very high energy, enthusiastic people that had come back on to the land trust to live back on traditional land. And education was one of their top priorities and I was very privileged to open three outstations. And an outstation model was where I was the visiting teacher, so you skilled up local staff to actually run the school and I travelled between those three outstations. The system I worked was to try and spend a week in each and continue the model. We had an alternative education program running in terms of an alternative timetable in 1989. We pioneered a lot of good new initiatives.

From an educational outcomes perspective how did you feel that they went?---If I can –

Probably talking about literacy and numeracy as a general proposition?---Yes. Certainly. If I can comment on that era of education, and this can be backed up somewhat statistically, the pastoral property schools are the Barclay had some really good outcomes. We took kids through to year 6. Traditionally then we then supported them with family approval into boarding schools. Majority went south to Alice Springs to Yarrara College, although there was a strong tradition in North Barclay in the gulf country in attending school in Kamilda College and St John. They were good days because we had good attendance. We had committed teachers. There was far more stability in the teaching service. I can remember pastoral property school on the Barclay – I worked at Brunette Downs first, actually, at Alexandria, where a teaching colleague waited 11 years to get that position. Now we struggle with extremely high turnover of teachers.

No doubt, Mr McAvoy will want to progress those areas later, so I won’t steal his thunder by asking some more questions about how that came about. Thanks, Mr McAvoy.


Minister, you clearly look back on those times with affection?---Absolutely.

And you got great satisfaction out of that period as a school teacher in remote locations?---Yes, sir. But I got a lot of satisfaction as a local member revisiting those schools now. Some with four and five teachers on communities now of 200 people with infrastructure that I only dreamed of. So that is a very satisfying feeling. Yes.

Minister, I have a number of questions to get through today so I’m going to ask you so try and focus on the questions that I’m asking and if we can say stay to the questions we will get through it a little bit quicker. You were elected to Parliament on 9 August 2008?---That’s correct.


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Is it fair to say that you came to Parliament with a lot of experience dealing with children but no experience in parliamentary process or parliamentary conduct so to speak?---That’s correct.

When you commenced your term at a parliamentarian, was there such a thing as a course for new parliamentarians?---No, sir. No duty statement, no job description, no workshop manual.

So you had to learn about your entitlements yourself, you had to learn about the gift registers yourself; they were all self-taught, those administrative tasks?---Yes.

MS BROWNHILL: Commissioners, what’s the relevance of the questions?

COMMISSIONER WHITE: I’m wondering. Mr McAvoy, if there is a limited time maybe we could not ask about whether the Minister understood about gift registers when he came to Parliament.

MR McAVOY: I haven’t suggested there is limited time, Commissioner. I’m just suggesting that - - -

COMMISSIONER WHITE: Well, you suggested that there needed to be some focus about the answering of your questions.

MR McAVOY: Yes. Yes.

COMMISSIONER WHITE: So perhaps if we just get a bit further into the interesting part of the Minister’s evidence.

MR McAVOY: Well, I’m going to ask the Minister some questions about how he developed skills as a parliamentarian, Commissioner.

MS BROWNHILL: Well, again, I object to the relevance of the question. There’s no suggestion that - - -

COMMISSIONER WHITE: I think I have to uphold it.

MS BROWNHILL: - - - the Minister has somehow been – I will leave it there. I object to the question as relevance.

COMMISSIONER WHITE: Could you not ask perhaps a bit more directly the questions you want to ask of him, instead of how he built up his skills as a parliamentarian. You want to ask him, I suspect, about lines of reporting about things that happened in his portfolio that’s relevant to this Commission.

MR McAVOY: Yes, I do. Commissioner.

COMMISSIONER WHITE: Perhaps we can just go straight there, Mr McAvoy.


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So, Minister, you were appointed a Minister for Correctional Services on 9 February 2009?---That’s correct.

That was six months to the day after you were elected as the member for Barclay; is that correct?---That’s correct.

Had you had any experience with Corrections before?---Personal experience from my life story. Not – don’t get me wrong: I have never been incarcerated. But – yes.

And I take it then you didn’t have any specific youth detention experience before you were appointed as Minister?---I had experience as a teenager, I had experience as a young adult and I had experience in my early teaching career of peers that had been through the system. I had visited youth detention centres. I actually applied for a job at a youth detention centre at one stage in Minda in Chullora in Sydney.

Thank you. So together with your portfolio of Correctional Services you were also appointed as Minister for Transport?---That’s correct.

You were only carrying two portfolios at that point; is it fair to say that you were a Junior Minister?---You definitely are a Junior Minister at the Cabinet table. Yes. When you are first appointed at Cabinet. Yes.

And by the very nature of the number of seats in the Northern Territory Parliament, the workload of your cabinet colleagues is often quite substantial, covering many portfolios?---Yes.

Were you assigned an advisor?---Yes.

Did you share that advisor with another Minister?---I am trying to think of the first advisor. There were a number of advisors during that parliamentary term for Correctional Services, but for each portfolio area you are allocated an advisor.

Thank you. In the very first days of your appointment as Minister, were you able to get access to your advisor and departmental staff?---Yes.

Were you able to have a meeting with the CEO of the Department of Justice, Mr Shanahan?---Yes.

You were able to meet with Mr Middlebrook?---Yes.

And so on 12 February 2009, when there was the announcement of the New Era in Corrections, you had at that stage had been able to have some discussion with your advisors and people who were working in the area; is that correct?---The New Era in Corrections was first adopted as a Labor Government policy in around 2007, from my reading. In 2008 the Cabinet decision was made to progress that and when I was


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appointed the Minister for Corrections I became a member of an executive government team, a member of an expert panel, a Cabinet Minister that went on to actually announce that New Era of Corrections – I, from memory, on the first day of my appointment.

Yes. The records show that it was 12 February 2009. So three days after your appointment?---Three days it is then, sir.

And so – and this isn’t to be taken as a criticism, but at the time of the announcement were you across all of the detail that was contained in the announcement? Do you want me to take you to the document?---No. I can answer that question. As an MLA for six months appointed as a new Minister, within three days of that announcement, I was actually setting up a ministerial office, I was trying to get across the briefs, including Corrections, and so it was very much a steep learning curve for me as a new Minister.

Thank you. Were you given any briefs or advice as to your responsibilities as the new Minister for Correctional Services?---The first document you deal with as a new Minister is the Act that you are responsible for. And that was my first research into each portfolio that I was allocated.

You started with the legislation?---Absolutely.

Had you been assisted to develop legislative analysis skills?---No. The journey started on that day.

Okay. In terms of your understanding then of what your responsibilities were, was – did it take long for you to come to terms with the power that you had to, for instance, approve an establishment to be a youth detention facility?---No. My memory of that time was that the appointment reflected acknowledgment of my career, my life experience and as a Minister that was tasked with an enormous responsibility but a Minister that came to the job with the basic parameters of common-sense and good manners.

And so at some point later in the term of your ministerial role, you had cause to establish a new correction facility in Alice Springs. Was that the time at which you were prompted to think about whether you had the power or not, or was it something that you were sort of across at an earlier stage?

MS BROWNHILL: I object to the question. The moment that the Minister had a realisation about the concept of his power is really not going to assist this Commission in its work.

COMMISSIONER WHITE: I would have to uphold that objection, Mr McAvoy. I just don’t understand why you asked that question.


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MR McAVOY: I’m trying to establish the Minister’s knowledge and understanding as to his responsibilities as a Minister. And I have some questions that go to his responsibility in relation to detention facilities and the detainees within detention facilities.

COMMISSIONER WHITE: Why not ask him some quite concrete questions about that rather than the sort of question that you have just asked. It would be more helpful if you did.

MR McAVOY: I won’t press the question, Commissioner.

Minister, what was your understanding in 2009 as to your responsibilities with respect to the operation of detention centres?

MS BROWNHILL: I object to the question again. It’s such a broad question that calls for analysis of a state of mind in 2008-2009. Again, the relevance for the Commission’s work is not apparent.

COMMISSIONER WHITE: Mr McAvoy, do you want to defend the asking of that question?

MR McAVOY: I won’t press the question, Commissioner. I will move on.

COMMISSIONER WHITE: I mean, otherwise we might need to have the Act as it was in 2009 and step the Minister through the Act then, which is effectively what you are really asking, because that’s the source of his power and the role that he at the time, as he has already expressed. It was grounded in the legislation. If there is a specific aspect of it that you would like to explore with him that’s relevant, that would be fine. But broadly it is not terrifically helpful.

MR McAVOY: Very well, Commissioner.

If I can take you back to the policy announcement on 12 February 2009, Minister, we were discussing a few moments ago. Do you recall if you met with the Chief Minister to discuss the policy before it was launched?---Yes. We had discussed the policy, no not only with the Chief Minister, but the Attorney-General who was also the Treasurer, a number of advisory staff. And may I say, if this is of any of assistance, Commissioners, that one of the elements of the New Era was the establishment of the Barclay Work Camp, which was a new – a very progressive initiative to address what was my real concern and my real interest in changing, and that was the unacceptable rates of indigenous people incarcerated, including juveniles, and how we could address that. So I was picked as a new Minister, and I was given the opportunity of working with the experts. And one of the first things I did as a new Minister was use common-sense and good manners and I said that I need to understand how the system works, and that began my regular visits to the correctional services’ institutions and the facilities. That was almost on day one of my appointment as well. It wasn’t the first day, but it was not long after I conducted


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my first tour of the Berrimah Correctional Service Centre, the Darwin Correctional Centre. And from there - - -

COMMISSIONER WHITE: And where was the impetuous for establishing what became the Barclay work camp?---Government’s thinking, before I was elected to parliament, with the previous member for Barclay, had been about developing regional solutions. I was very interested. I was running an alternative educational program and the youth I was dealing with were in regular contact with the justice system. I liked that idea. When I was given the privilege of becoming Minister I was able progress a lot of my thinking into that and what came of that was the Barclay work camp. And the next model I was really focused on was a 200 bed facility in partnership with Charles Darwin University at Katherine on the rural college campus, which we had successfully negotiated. And that was an area I knew well, because I had taken lots of youth through that facility in certificate II in rural operations, something I was very passionate about. Unfortunately that was never progressed with the change of government but there were certainly great opportunities opening and as a new Minister I was able to explore what I knew about what I was passionate about, and it was a steady progression. I knew that it wasn’t all going to help overnight.

MR McAVOY: Certainly. And on that note, Minister, do you recall that the announcement on 12 February 2009 about the new era in Territory Corrections policy didn’t include any reference to youth detention? Do you recall that striking you at the time?---I do. But associated with that was – and certainly reinforced in terms of my first tour – was the absolutely extreme position of the Darwin Correctional Centre in terms of its beyond its capacity, beyond its economic viability, and in terms of rioting prison numbers it was an extreme situation. That was the priority of government by far.

So you became aware of that after your appointment as Minister?---I had an idea of the Darwin Correctional Centre through friends and associates and colleagues from my life experience in Tennant Creek and Barclay. I knew, as any Territorian, the stories of incarceration in the Northern Territory. But as a Minister I got to see that first hand.

Were you also aware of any stories in relation to the condition existing within the youth detention facilities at that time?---I had never visited the Don Dale Centre, however I knew lots of youth over the years that had been incarcerated there. And worked with them.

When did you become aware that a committee called the Northern Territory New Prison Steering Committee had been established in relation to decisions regarding new prisons?---I can’t give you a date, counsel, but it would have been in one of the very early briefings as a new Minister in the portfolio.

It’s not the case that you established that committee, is it?---No.


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It was your predecessor, you believe, or you don’t know?---The Government – the executive government had established that committee, to my knowledge.

Who were the members of that steering committee?---There were a number of members of that steering committee. I can refer to notes and name them, but my strong memories are of the Territory members which was, of course, the CEO of the Department of Justice, Mr Middlebrook, the Commissioner for Corrections, the Chief Minister, the Attorney-General, myself, and a gentleman, Mr Pat Coleman, who was managing, so to speak, that new correctional precinct in Holtze. The development of it.

Do you recall receiving a ministerial brief dated 26 May 2009 to you as Minister from the CEO of the Department of Justice, Greg Shanahan, in relation to the new prisons project.

MS BROWNHILL: Can I suggest that my friend just take the Minister to the document if that’s what he wants to do.

MR McAVOY: Certainly. If the witness can be shown annexure GM13?---How do you scroll down on this?

You can’t control it from there, Minister.

COMMISSIONER WHITE: We have no control at all. It’s those gentlemen over there who will let us see what we want to see.

MR McAVOY: I will direct you around the document, if that’s okay, Minister. So you can see - - -

MS BROWNHILL: Can I interject to say that the Minister has hard copies of his statement in front of him.

COMMISSIONER WHITE: I understand that, Ms Brownhill, and I think he understands that too because he has got it there. But it is sometimes quicker to use them on screens to save waiting for him to find it. Thanks, Mr McAvoy. If you could just on with asking the question.

THE WITNESS: I am looking for it here, counsel, in the notes - - -

MR McAVOY: It will be tab 13?---Not in my folder. Sorry.

No?---It might be tab 6. No.

Commissioner, I’m content for Mr O’Mahoney to visit the witness box.

COMMISSIONER WHITE: ..... McCarthy prefers to use the hard copy.


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MR McAVOY: I have no objection to him using that.

COMMISSIONER WHITE: No. He can if he wants, as long as it’s done fairly briskly. That’s all, Mr O’Mahoney.

THE WITNESS: Thank you. I have got that document in hard copy here.

MR McAVOY: So that’s a brief from the chief executive officer to you, it’s dated 26 May 2009 ,and the issue – if we can just scroll down slightly, please, operator – is to seek endorsement of the Department of Justice views on a range of services and facilities that form part of the overall program replacing the Darwin Correctional Centre. And its timing is urgent, the papers are required for 2 June 2009; you can see that?---Yes.

And if we turn over the page, there’s reference to a number of attached papers. And it’s – if we can scroll down a little bit further, it’s – the recommendation is that you endorse the attached papers and sign a letter to the chairperson of the steering committee?---That’s correct.

COMMISSIONER WHITE: And what’s the question, Mr McAvoy?

MR McAVOY: If you can adjourn turn to the issues paper. Can you see the issues paper that’s attached?---Yes. Certainly. Actually, the letter to the under-Treasurer is on the screen.

Is the first document. The next document?---Yes.

Okay. So – and you can see under the heading Background there is reference to there being two – the detention facilities. And then there is a description about Don Dale juvenile detention facility, and then over the page, the next page, there is a description of issues at the Alice Springs juvenile holding centre. The brief, I suggest to you – and have you read it recently, that brief?---Yes.

The brief identified in 2009 that if – if no youth detention facility was built then certain outcomes were likely to flow from that. And if we can just turn to – if we can just go back one page to the – if you look at the last paragraph with the issues set out below, in numbers. So it reads – sorry. One page over. Sorry. Forward. Thank you:

Should the DDJDC –

so the Don Dale Juvenile Detention Centre –

remain in the current site a review will be required to determine suitability. In addition, it is likely that the following would be required: (1) increase in capital expenditure, (2) - - -


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COMMISSIONER WHITE: Right. We can just read those. Thanks, Mr McAvoy.

MR McAVOY: You recall that, Minister?---Yes.

And so this was the – this was the committee, the Steering Committee on the New Prisons Project providing its views to you that there was a – if a new youth detention facility was not constructed with respect to the Don Dale Juvenile Detention Centre then a number of things needed to occur and if we look over the next page – one more. Thank you. Those issues are set out in a bit of detail. And so the first one is the need for an increase in capital expenditure. Can you see that?---Yes.

So it’s suggested there that the facility would have to undergo significant capital works to ensure secure and appropriate accommodation can be provided for all juveniles. I suggest to you that it can be taken from that that it’s suggested that without that increase in capital expenditure it may not be possible to ensure secure and appropriate accommodation could be provided for all juveniles at Don Dale. That’s the situation as you understood it?---It is certainly advising government that we needed to conduct – yes – additional expenditure. Yes.

And that the – those works were needed to ensure secure and appropriate accommodation?---Yes.

Thank you. And you understood that the facility would have to undergo those significant upgrades if a new centre was not built?---The Don Dale centre?

Yes. Yes?---Yes due to the rising numbers of juvenile detainees, including the rising number of girls. Yes.

Then it’s also suggested that there needed to be an increase in educational programs?---Yes.

That’s item number 2. And from that we can observe – we can take it that committee was concerned about the existing educational programs.

MS BROWNHILL: I object. The document speaks for itself. The Minister doesn’t have to rephrase it or - - -

COMMISSIONER WHITE: Thank you, Ms Brownhill.

MS BROWNHILL: - - - express a view about it.

COMMISSIONER WHITE: A lot of these – the subsequent development of the story about the refurbishment of the youth detention facility in Darwin of course is set out in the Minister’s statement, Mr McAvoy. It, you know, is woven through it. So - - -


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MR McAVOY: I don’t need to take him through this in perhaps so much detail, Commissioner. I accept my friend’s point.

COMMISSIONER WHITE: Yes. I mean, I have read the statement and it’s quite comprehensive about the policy parameters for expenditure and adult prisons and what had to happen then with the juvenile detention facilities if there wasn’t going to be any fundamental work done and so on. I am quite conscious of what you have written in your statement, Minister.

MR McAVOY: Thank you, Commissioner. I will just ask the witness to be taken to page 5.

Page 5 shows the recommendation from the committee that prepared this report and they identified five options. Can you see those five options there?---Yes.

And the recommendation from the committee was to – it recommended option 5. Do you recall that?---I can recall those conversations. Yes.

And you can see recommendation 5 is the preferred option. And if we can go back one page. Option 5 is to replace – stop there. If we replace the Don Dale Juvenile Detention Centre and the Alice Springs Juvenile Detention Centre with two new facilities, a 65 bed facility, new purpose designed facility, and the 20 bed facility in Alice Springs. Can you see that?---That was the view of the expert review committee. Yes.

Yes.. And you endorsed that report?---Yes. I did.

And you wrote back to the chairperson saying that you endorsed their recommendation?---I wrote back to Mr Shanahan, yes, and endorsed that recommendation. Yes.

And then somewhat – a very short period later there was a further ministerial on 22 June 2009 where the same recommendation was made and endorsed by you where the bed facilities – bed numbers in Darwin were up to 75 and the bed numbers in Alice Springs were up to 25; do you recall that?

MS BROWNHILL: Can my friend take the Minister to the document?

MR McAVOY: It is GM14, please?---Issues paper for consideration by the new prison steering committee. Yes. 22 June 2009.

Yes. Thank you. And if you can proceed through to the annexures?---Yes. I have got that, sir.

Next page, please. And you can see that the recommendation from that committee – one more page. Sorry. One further page. I think my pages are out of sync, Commissioner.


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If you look down, if we scroll down slightly. The option 5 is to replace the Don Dale Juvenile Detention Centre and Alice Springs juvenile holding centre with two new facilities, a 75 bed facility, a new purpose design facility on the prison site in Darwin, and a 25 bed new purpose facility in the Alice Springs Correctional Centre. You can see that. Yes?---I’m just going through the document. Point 5, replace, yes, the Don Dale – yes. Yes. On page number 5 and page number 6. Yes.

And that recommendation was, again, endorsed by you?---Yes.

Now, about the same time as this committee existed, there was a subcommittee of Cabinet called the Northern Territory Government Prison Project Committee. Do you recall that?---Yes.

Did the two committees overlap in their work, do you recall?---No. The subcommittee was, in my memory, focused entirely on the new correctional precinct to be delivered for Darwin, for the Northern Territory. But in the greater Darwin region.

And do you recall if there was any relationship between those two committees?---Personnel, yes. The members. The members.

But one wasn’t reporting to the other or engaged by the other?---There was a lot of synergies between those committees, obviously.

But it’s not the case that that Cabinet subcommittee sought opinions and papers from the Steering Committee that had been established to advise you?---I’m sure they would have. That’s the way Cabinet processes work.

So do you recall – if we can just go to tab 6 of the tender bundle, please.

COMMISSIONER WHITE: Do you mean tab 6 of the tender bundle that we have up here or do you mean Mr McCarthy’s bundle?

MR McAVOY: Sorry, Commissioners. It’s a supplementary tender bundle with respect to this witness?---That’s tab 6. Thank you.

Do you have that document, Commissioners?

THE WITNESS: Northern Territory Prison Project Review.

MR McAVOY: That’s it?---Yes.

COMMISSIONER WHITE: Well, it’s on the screen anyway. Well, it was for a second. Yes.

MR McAVOY: That’s not the document.


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MR McAVOY: That’s it. Thank you. You can see on the screen in front of you the Northern Territory Prison Project Review?---That’s correct.

Site and Infrastructure Options?---That’s – yes.

That report was presented to the Cabinet subcommittee by the expert review panel. The cover of the report refers to – shows a date February 2010. I will just ask you to note that on the inside pages the date 16 September 2010 – you will see that appears. You can see at the bottom of the page?---16 September 2010.

Yes. You recall that document – you have already said that. Yes?---Yes.

Do you recall what the correct date is for that document - - -

MS BROWNHILL: That implies that - - -

THE WITNESS: I can’t recall the correct date from memory. No.

MR McAVOY: You can’t recall whether it was produced in February or September in 2010?---No.

Okay. The purpose of the report was to review the site and infrastructure options and the terms of reference are set out on page 4 of that document.

COMMISSIONER WHITE: Did you want to ask the Minister a question about that?

MR McAVOY: I do. I do.

If you look at the terms of reference you can see they don’t include any consideration – they don’t require the committee to include consideration of youth detention facilities?---Well, this document reflects the work of the committee that were designing and tasked with delivering the new Correctional Services precinct entirely. Relating to, as I have already said, that extreme priority that was needed at the time to address the untenable situation at the Darwin Correctional Centre.

Yes. I understand. And the expert review panel was helping the subcommittee assemble and process the issues; that’s correct?---Well, the government, yes, with its resources, was working towards the delivery of our new era in corrections. Yes.

If we can just turn to page 29 of the report. Can we rotate that page. I’m not sure how clearly you can see it, but the expert panel considered options on page 29 of the report, set out some costings covering the various options; you can see that there. If you can have a look at column 2.5.11. You can see costings for a 75 bed secure


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youth training facility. Can you see that?---No. I’m on page 29. This is the table that’s in front of me – yes. I think I have got the table. Yes.

Yes. And can you see in the row – at the top row there is references to various forms of facilities?---Yes.

Then there’s a reference at item 2.5.11 to a 75 bed secure youth training facility?---Yes.

And you can see the cost is estimated at 52 million; is that correct?---That’s correct.

Okay. And you can also see the estimated costs for a 1000 bed facility in 2.5.2, which is 366.6 million?---That’s correct.

And the 800 bed multi-classification facility at 431,750. Sorry. 431,750,000. Yes.

COMMISSIONER WHITE: We can read it, Mr McAvoy. It is there in front of us.

MR McAVOY: And if we turn back to page 14 of the report, we see that the expert panel makes a recommendation at, one, that an 800 bed facility be built on the Greenfield site?---Yes.

And then at recommendation 3, the Greenfield site at Jenkins Road is the only site that’s identified for the facility to be built by 2013.

Yes?---Yes.

And the recommendation 4 facility, if the facility is to be built by 2013 then it’s noted that procurement had to occur immediately?---Yes.

And then at recommendation 7, we see that consideration should be given to secure mental health facilities and a 75 bed youth training facility?---Yes.

Yes. Are you able to say now, having received that report, what action that Cabinet subcommittee then took to progress the development of the Darwin corrects precinct?

COMMISSIONER WHITE: Do you mean for the adult prison or do you mean to this item 7?

MR McAVOY: For the precinct as a whole, Commissioner. That’s why I used the term precinct.

COMMISSIONER WHITE: Thank you. I was just wondering why you were asking that question.


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THE WITNESS: I think we need to then explore Cabinet procedures, because this information was being sourced by government at the highest level and then it takes it to the next layer which is the Cabinet processes.

MR McAVOY: Yes?---Now, if we accept and acknowledge the extreme fiscal position of the Northern Territory Government at the time, and I can draw your attention to budget papers to actually identify the content of a comment like that, then this model was continually being worked through Cabinet and there were competing ideas and competing priorities.

But it is the case that ultimately the project that went ahead was the 800 bed facility and the mental health facility on the Darwin corrections precinct?---Well, let me draw your attention to the site change as well. There was some considerable work that was undertaken to deliver that correctional precinct, and you’re correct, the final design and delivery did not include the juvenile facility. That’s true.

Do you – was there any record of that change of decision – or change of position or abandonment of the recommendation that the committee consider the establishment of a 75 bed youth facility?

MS BROWNHILL: I object to the contention that it was abandonment of position. The ground work for that hasn’t been laid at all.

COMMISSIONER WHITE: Alright. Yes, Ms Brownhill. Perhaps you could just do a few more step steps along the way. I know you are trying to truncate it in view of - - -

MR McAVOY: Yes, Commissioner. I will just rephrase it.

Can you say – and tell the Commission, Minister, whether you’re aware of any record of any change in decision to proceed or not proceed with a – the inclusion of a 75 bed facility in the Darwin corrections precinct after this – the receipt of this report from the - - -

COMMISSIONER WHITE: I think the Minister is on ..... to the question.

THE WITNESS: Any such record would be recorded in a Cabinet decision.

COMMISSIONER WHITE: I’m not sure that we have got access to the Cabinet papers, Minister. I’m not even sure that we have asked for them. But if we have I imagine Mr McAvoy will be able to answer his own question from it?---Yes.

Is that the case? We don’t have the Cabinet paper, Mr McAvoy?

MR McAVOY: We have sought the Cabinet submissions and we are coming to that, Commissioner, very shortly.


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COMMISSIONER WHITE: Alright. Well, then, let’s take the morning adjournment. We have been going since 9 o’clock, so we will take a 20 minute break now. Thank you.

ADJOURNED [11.06 am]

RESUMED [11.29 am]

COMMISSIONER WHITE: Thanks, Mr McAvoy.


Before the break, Minister, we were talking about the development of the Government’s position with respect to the Darwin correctional precinct. And I was asking you some questions about how it came to be that there was a decision made which didn’t include the previously talked about and recommended 75 bed facility youth detention facility on the Greenfields site with the adult prison; do you recall that?---?---Yes.

And you were saying that there was much discussion at the Cabinet level?---Yes.

And that your recollection is that there would have been Cabinet papers dealing with the various iterations as it was being developed up before it commenced?---That’s correct.

Have I paraphrased it correctly? Is it the case that because it was your portfolio it was your responsibility to put the minute to Cabinet seeking approval for the DCP?---It was a combination, actually. The Attorney-General was the lead Minister, and if you look at the organisational charts, the way Government was structured then, the Chief Minister of course is Minister for Police, it was a very experienced Cabinet at that time, but I think, counsel, you have got to realise that that decision was never taken off the table. But I did direct you to – if there were any real determination it would be reflected in a Cabinet decision.

Well, as it turns out we know that there wasn’t a 75-bed facility constructed; that’s correct?---That’s correct.

And so at some point could - - -?---Could I just ask, I spun that speaker around, sir, can I have that speaker facing me? No. I’m just having great difficulty hearing the Commissioners. I use amplification and so I spun that front of house around. Sorry.

COMMISSIONER WHITE: How is that. Is that better? I will try and lean right forward into the microphone, Minister.


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MR McAVOY: You can hear me okay though?---I can hear you Sir, yes.

Okay. So in your mind there’s no single point where a decision was made not to proceed with a 75-bed facility?---There was no point. This New Era in Corrections was about changing the justice system across the Northern Territory and it was a staged process.

I am familiar with the policy but it seemed that at the point where the subcommittee received the Prison Project Review Paper, that I just took you to, that the 75-bed facility was on the table?---That’s correct.

And somehow at some point the project proceeded without it. And because we are now in a position where there has been no new facility built some seven years later, it’s important to understand how that decision was made. Do you appreciate that?---Sure. And if I could – without disclosing Cabinet confidentiality, if I could draw your attention to the Northern Territory Government’s significant policy investment in relation to the global financial crisis in terms of the significant challenges. And the model for the delivery of the Darwin – the new Darwin correctional precinct changed from the traditional design and construct into a public-private partnership model. So the decisions around that were also of great significance and influence in terms of the Northern Territory Cabinet decisions.

Certainly. And it’s fair to say that a public-private partnership and if this is not that you are not able to answer, let me know, but a public-private partnership is where there is a private sector investment to deliver infrastructure for the public and it’s repaid over a long period through guaranteed contracts?---It is a model that governments choose for delivering large capital items, particularly in – you know, cash-strapped times. It is also not just the lease, it is about the repairs and maintenance and the management of that asset over the defined period. And in terms of the Darwin correctional precinct it’s over 30 years.

Yes. And so the decision to proceed with a PPP, if I can call it that, allowed the Northern Territory Government to commission the construction of the new facility, the 1000-bed facility, on the basis that the cost would be – the upfront cost would be deferred. Is that correct?---That’s correct.

Why – was consideration given as to whether that could also be done for a 75-bed juvenile facility?---Public-private partnerships, from my learnings, are only entered with extremely large capital, items like the $300 million, the $500 million capital items.

I understand that. But the proposal was to construct the 75-bed facility on the same site at the same time. That’s my understanding of the proposal. And the review document says that, if you will allow me, that there will be able to be operational cost savings by co-locating those facilities. Do you recall that?---Well, that’s perfectly logical and that’s one of the important lessons I learnt in Correctional Services. However, the model of delivery changed and it was a certainly an intense


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negotiation right through that, particularly when it went to a public-private partnership model.

The difficulty is, Minister, that there are, as far as we have been able to establish, an absence of documents recording the decision points that led to a proceeding with a 1000-bed facility without a 75-bed juvenile facility?---The decision to go into the PPP, the public-private partnership, to deliver that Darwin correctional precinct relating to the extreme circumstances of the old Darwin Correctional Centre at Berrimah was one of Cabinet’s deliberations. The juvenile facility, and juvenile justice never left the Cabinet discussions. It continued. And as I have said in my statement, one of the great – one of the sad experiences for me as a member of Parliament was losing government in 2012 where I lost the ability to continue that process.

Yes. Certainly.

COMMISSIONER WHITE: So is your answer, Minister, then that it was never taken off the table?---That is correct, Commissioner.

Thank you.

MR McAVOY: Thank you. Thank you, Commissioner.

But it was deferred; that’s correct?---That’s a fair word to use, yes.

And in favour of dealing with what you saw – Cabinet saw as the priority issue being adult corrections?---I wouldn’t use the word “In favour”. It was a matter of priority. Let me expand on that a little, in terms of a Minister with an overflowing, archaic aged detention facility.

The Don Dale centre?---No. The Darwin Correctional Centre, the old Berrimah Prison, with record prison numbers with extreme circumstances around management and wellbeing. Then Cabinet had to prioritise the government’s limited investment.

It is the case, though, that at – in that prioritisation process you, as Minister for Correctional Services, must have been aware that the decision not to go forward with a 75-bed facility at the same time would mean that major – a replacement for Don Dale was not going to happen for several years, if not many?---I didn’t have a time frame on that, but I was of course cognisant of the fact that I didn’t get all my Cabinet submissions up. I did the best that I could at the time.

But you knew that the construction of the DCP was going to take until 2013 and it ended up blowing out until 2014. So the notion was that you wouldn’t come back to new juvenile detention facilities until after the – embedded in the DCP; is that correct?---Well, I was planning to come back to a seat at the Cabinet table in a new government in August 2012.


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And it’s your evidence, as I understand it, from a few moments ago, that there are documents recording the deliberations of Cabinet and Cabinet submissions that were put forward to Cabinet?---Well, in answering your question, I said that if you are looking for that evidence it would be in the form or context of a recorded Cabinet decision.

And – but there must be a submission that goes forward with the Cabinet decision. The Cabinet decisions aren’t made in a vacuum. There is a minute that goes to Cabinet and Cabinet - - -?---Sure.

- - - determines it. Did you ask for any of those documents in the preparation of your statement?---No. I asked – actually, about what the protocols were about opening Cabinet documents.

We have sought some of those documents, I can tell you, Minister. We have been told that there are no documents recording decisions not to proceed with or not – not to go forward with the – perhaps I should get the correct wording. Sorry.

MS BROWNHILL: That’s consistent with the evidence given by the witness, which was there was never a decision not to proceed; it was deferred. So I’m not sure what .....

COMMISSIONER WHITE: No. Just let Mr McAvoy put the wording to the witness.

MR McAVOY: Documents were requested which record any proposal – the ultimate decision or reasons for decisions not to proceed with or to project into outer years the juvenile detention infrastructure referred to at paragraph 42 of your statement. If you just want to have a look at paragraph 42 of your statement please, Minister. Yes. You have read that paragraph 42?---Yes. I have read paragraph 42.

And you understand the type of documents we were seeking?

MS BROWNHILL: Well, Commissioners, a notice to produce was issued to the Department of Corrections, not to the Minister personally. So if there is to be some issue taken about non-production in accordance with a notice to produce, unless the notice to produce was issued to the Minister personally, he’s not going to be able to answer any questions about why or why not certain documents were or weren’t produced.

COMMISSIONER WHITE: Alright. It may be that that, in fact, is not the question that’s being asked, Ms Brownhill.

MR McAVOY: That’s not the question, Commissioner. The question is whether the Minister is aware or of the belief that there should be documents that are available to answer that query.


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COMMISSIONER WHITE: Well, would he expect that there would be documents, perhaps. That’s about as far as you could take it with him, I think.

MR McAVOY: Yes.

COMMISSIONER WHITE: What’s your answer to that, Minister?---The documents reflect the documents you have already provided to me, that inform Cabinet on the whole process in terms of implementing the new era. So I expect Cabinet records would reflect that. You’re looking for a decision and now you’re telling me there is none. And I’m informing you, counsel, that it never was off the table. It was continuing and it was my ambition and my personal drive and enthusiasm to deliver it.

MR McAVOY: I’m not suggesting that the only option was that it was taken off the table. I’m suggesting that – I’m trying to use your words, that it was projected into outer years, and at some point there must have been a decision not to proceed with it at the same time as the DCP. And all we are trying to do is find out where the – where the documents are that reflect that decision so that the Commissioners can understand how the decision is made and what matters are taken into account. And we are having difficulty finding those documents. And you’re being asked, Minister, whether you believe or expect that such documents should exist?---Because – in my opinion, because there were no decisions to take that off the table, there would be no documents suggesting that that was removed.

So there’s no – there was no decision to project the – a new purpose-built juvenile detention infrastructure into forward – into outer years. Is that what you are saying?---I’m not aware of any documents. No. And my language in my statement is around the processes of Cabinet where you lobby – if I were to achieve that I would need to recommence that process with a formal Cabinet submission.

Okay. If we could bring up the Cohen annexure, please.

COMMISSIONER WHITE: Which annexure?

MR McAVOY: It is the Cohen annexure. And if we can go to the last three pages, thank you.

So if you can go to the last page, please. It says – it’s page 1 – page 3. You can see this is an email, Minister, from 16 September 2013 from Sally Cohen, who was an Executive Director in the Department of Correctional Services while were you Minister; do you recall that?---I’m trying to read off this document on the screen here.

I will allow you to read it?---That’s okay. So we are referring to Sally Cohen, executive director youth justice.

Yes?---And the text?


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No. An email?---Yes. The text of the email?

So you can read it’s directed to Gabby, secretariat to the NTDCS, which is the Northern Territory Department of Correctional Services; that’s correct?---Yes.

And you can see that Sally Cohen is looking for some documents, briefs, to assist with current Cabinet submissions. Okay?---Yes.

You can see that?---Yes.

Okay. So if we can go to the next page. And you will see down the bottom there is a message from Gabrielle Mappas to Sally Cohen dated 17 September, which is the day following the last email:

Hi Sal, here are the ministerials I can find that have to do with funding and detention centres. I’m not sure if this is what you are looking for. Let me know if there would be any other titles. I can’t find one signed from 2011 but Trim said it was signed. I have attached the Word version.

?---Yes.

Okay. If we can just go forward. Sorry. If you can just go back a page, please. And then on the bottom of that page, page 1, you see Sally Cohen saying,

Gabby, this looks very promising. What happened after the letter was sent to the then under-Treasurer?

And this is on 17 September 2013. And if we scroll up. The email from Gabrielle Mappas to Sally Cohen on 18 September 2013 says:

The trail goes dead. These are the Trim notes. The Minister endorsed the issues paper on –

question mark for the dates:

… The Minister signed the letter to Jennifer Prince on 22/06 ..... and given to Anne for approval for processing.

And then there is a few more references. And then in blue again:

… and there is nothing in the file. I have found two more that relate to this, one before this and one after, but there is still nothing to indicate anyone rejected or was not happy it.

Now, that email trail came after your time as Minister; that’s in 2013. You were in the opposition at that time that’s correct?---In 2013, yes.


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So would you – have you – are you able to give any – are you able to describe any circumstances where it would be appropriate for the contents of that – relating to those decisions not to be on the file?---So we are still asking whether a decision was made?

Yes?---And I have made my position clear. But I did notice when you were scrolling through that, that there were the reference to the Cabinet submissions around the infrastructure upgrades to the existing facilities.

Yes?---And that’s quite well documented in the papers that I have provided. And that essentially was the work of Government in absence of building the new facility.

Yes. I understand that. But the decision trail that we are looking for, Minister, is the one which approves the construction of the DCP in the absence of a 75-bed facility. And you’re not aware of any reason why the documents relating to that decision trail shouldn’t be on the file where they are expected to be?---My only answer to that would be because a decision was not made.

COMMISSIONER WHITE: I think probably that’s about as far as we are going to get by way of response, Mr McAvoy.

MR McAVOY: Yes. I don’t intend to take the Minister any further on that.


MR McAVOY: Minister, regardless of whether the decision to build a 75-bed youth detention centre was right or wrong, you would agree that building such a facility at the same time as building an 800 or 1000 bed facility on the same Greenfields site would have been the cheapest way to build that sort of facility?---They were the efficiencies that were presented by the expert panel, by the experts within the country. And that was what was provided at Cabinet, yes, for their advice. Yes.

And it also would have been the cheapest to operate because of the efficiencies in co-located services?---Co-locating services in correctional industries deliver efficiencies. Yes.

So the point I’m getting to is that if you were going to build that sort of facility it was one that had to be built there and then along with the adult corrections facility?---That is an option, yes.

Well, that’s the most cheapest and a most effective option in terms of the construction and operation of the facility?---In a traditional sense, yes. However, if you were exploring other options then you could look elsewhere. There were a number of recommendations.

So you would agree, though, that in 2011 the youth detention facilities in Alice Springs and Darwin were run down?---Yes.


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And inappropriate?---Inappropriate for the rising numbers of juveniles and from a personal perspective the increasing complexities of the juveniles, detainees. Yes.

And you attended on those facilities?---Yes.

And you saw the condition in which people were kept?---Yes.

Did you attend in the isolation cells at the Don Dale detention centre?---Yes.

The Behaviour Management Unit?---Yes.

And you saw young people detained in those cells?---No. I never saw anybody detained in those cells, but I toured that facility on a number of occasions.

And you noticed that the cells were without natural light?---Those cells are quite confronting to a person for the first time. Yes.

And did you form any view as to whether it was appropriate for young people to be kept in there, in isolation?---One of the first professional development exercises I conducted in the United Kingdom was the legal restraint of a child as I worked in a highly complex centre for children excluded from the mainstream. So I had a basic understanding of the necessity for addressing high risk behaviour, for ensuring safety of staff and the detainees, and I was then learning about the physical infrastructure in the system of Corrections that provided for that.

So was that in the UK or was that when you came back?---My training was in the UK and it was – it was quite a shock when that was the first professional development exercise that I was put through. But I saw the relevance and the necessity and it probably helped – it helped greatly. When I became the Minister for Corrections, I came with a lot of life experience. When I first saw the Behaviour Management Unit in any of our facilities, when I first visited the maximum security unit of an adult prison, it is quite confronting, but it’s then my – you know, my desire to learn and to understand why such facilities are needed and exist.

So the facilities you saw at Don Dale Correction Centre were comparable with those that you had seen in the UK when you were there?---We didn’t have those facilities. I was in a learning support centre. We did have time out rooms. We had a padded room, for instance, and should the incidents escalate any further than that then we sought extra support.

And are you saying that the – well, I withdraw that. Do you say that the conditions in the Behavioural Management Unit in Don Dale were better or worse than the - - -

MS BROWNHILL: I object to the question. It’s not relevant when we don’t know what the conditions were in the UK.


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COMMISSIONER WHITE: Well, more to the point is the Minister was in a learning centre, not in a prison, of course, environment. So while there might be some similarities, it’s a different situation.

MR McAVOY: It is. It is, Commissioner. I accept that. It may have been relevant to make a comparison between the conditions in the Behavioural Management Unit in 2011 and some detention facilities in the UK in 1991. But I won’t press it.

You’re aware that the only youth detention facility in the Top End is now a rebirthed adult Berrimah prison?---Yes.

And you’re aware that in 2011 the Commissioner for Correctional Services – was he Commissioner in 2011 or was he a director?---A Commissioner.

Described the facility as one that ought to be bulldozed?---Yes.

And, so, you’re also aware that – you may be aware that Keith Hamburger, a corrections expert, whose report has been tabled in the Northern Territory Parliament in August last year?---Yes.

And he has given evidence in this Commission, was of the opinion that the new Don Dale at the old Berrimah facility, even with the upgrades, was unfit for purpose. You’re aware of that?---I’m aware of that. Yes.

Yes. So, I mean, I would suggest to you that it’s clear that whether the 75-bed facility at the Darwin corrections precinct was the right or wrong decision, all things being equal, it’s possible that a new facility could have been built and the people – the detainees who are now in the old Berrimah prison, the new Don Dale, could have been in a new modern state-of-the-art facility?---If that project had commenced and been concluded, yes.

The decisions that Ministers and politicians need to make are not always easy decisions, Minister, and there are competing interests that have to be observed. But was it particularly concerning for you that kids that you might have known from your electorate would be coming into facilities that weren’t appropriate for their detention?---Yes. And it might be worth mentioning that visiting Correctional Services precincts, both adult and juvenile across the Territory, I came across a lot of people that I knew. Some being ex-students. And I - - -

COMMISSIONER WHITE: Always disappointing no doubt to do that?---Trying to turn it into a positive, Commissioner, it was about engaging with those young people, with those adults, and, as a new Minister, trying to learn about how we could do things better. And I did embark on change with the limited resources that I had. I certainly looked at the education programs. We looked at the infrastructure. We looked at the opportunities that we had, and it was a work in progress during my time as the Minister, although as we have ascertained here, I did not deliver a new facility for juveniles.


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MR McAVOY: Thank you. Do you recall now whether you in it the course of the decisions to proceed with the Darwin correctional precinct recommended that to Cabinet yourself as Minister for Corrections?---Can I clarify that, recommended the - - -

To Cabinet that it proceed with the Darwin corrections precinct?---As part of executive government, I was one that recommended we proceed with that.

Minister, one of your important functions as Minister was to receive reports of the official visitors; that’s correct?---That’s correct.

These provided you with a direct insight into any of the issues of concern regarding the management and operation of youth detention centres?---That’s correct.

Was it your policy to read each of the official visitors reports that were provided to you?---Yes, counsel. As a matter of fact, I have personal friendships with a number of official prison visitors and I was asked specifically to do that on a personal level. But it’s something I would have done anyway. In a ministerial brief, you have the machinations of government. You have the issue, you have the brief and response, and then if you look further into the file you will see the human elements of where the information came from: letters, emails, reports. And I always took great care to read those documents.

Thank you, Minister. So if we could just look at document 2 in the supplementary tender bundle. It’s a ministerial brief regarding the official visitor report of Winnifred Burgess at Don Dale Detention Centre following a visit there on 26 March. Can you see that?---Yes.

26 March 2009?---Yes.

And Ms Burgess wrote to her regarding her concerns regarding hold male and female detainees together. Do you remember – can you see that?---I have the ministerial in front of me and I remember the issue. Yes.

And you remember the issue in part because it was a recurring issue. It wasn’t one that surfaced and went away immediately, was it?---I remember this issue because of the rising number of female youth detainees, and from life experience how difficult it would be to manage high-support-needs behavioural and emotional youth together in terms of cross-gender.

And that’s what the brief noted, an increasing difficulty managing male and female together?---Yes.

And that over the next month permanent infrastructure changes would be made to separate the males and female; is that correct?---Yes.


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Can I ask you to look at the supplementary tender bundle document 3, please. It will come to you on the screen?---The Alice Springs juvenile holding centre?

No. I believe it’s a document – yes - - -

COMMISSIONER WHITE: Yes. It is.

MR McAVOY: - - - dated 18 June rather than - - -?---7 August 2009 I have in front of me.

Yes. No. That’s correct. Can we go back to that document. That’s right. So this is a ministerial brief regarding the official visitor report of Trish van Dijk?---Yes.

Following a visit to the Alice Springs juvenile holding centre on 18 June 2009; yes?---Yes.

And this is in relation to a visit to Aranda House?---Yes.

How do you say it, Minister, Aranda or “Arrunda”?---I pronounce it “Arrunda”.

If you can just go to page 6 of that report, please, operator. If you can just hold one moment. One page back, please, operator. And if we can go to the bottom of the page. It’s a report dated 2 July 2009. Can we just blank the screen for a second. Thank you. There’s just a redaction that needs to be attended to, Commissioner. Okay.

At the bottom of the page in the second-last paragraph, you can see there that Ms Van Dijk shares her concerns that as detainees were being kept at Aranda House longer than previously, that there was a problem that there was no area for outside activities or for them to simply be outside. Do you recall receiving that report?---I can’t recall this exact report. However, it was presented to me as part of the documentation. I have re-read it and I understand the issue and – sure.

And if we can just go back to the brief, the covering ministerial, please, and to the second page. Your brief notes there that the executive director of the Northern Territory Correctional Services stated that the Alice Springs juvenile holding centre was designed to be used as a short term holding facility; it is not normal practice for a detainee to stay there for more than a week. Do you see that?---Yes.

Thank you. And on her following visit in – on 18 November 2009, which was some five months after this visit – if we can just go to supplementary tender bundle document 5, please. And in this brief Ms Van Dijk raised her concerns that Mr – with – I will take you to the – if you can just scroll down, please.

You will see that the brief is in relation to the further visit by Ms Van Dijk and it notes that Ms Van Dijk has raised her concerns with Mr Clee and she has been talking about these issues for a number of years. And I will just find the – I think the


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second page. The second page, please. And you can see at the top of the page Ms Van Dijk mentions that for a number of years she had advocated for the need for an outdoor area. Do you recall that?---Yes.

You have received a further official visitor report from Nadeen Williams. One dated on 22 March 2010 talking about – I will paraphrase it for you – talking about the need for outside and appropriate spaces for children and a lack of sunshine and fresh air at Aranda House. And another brief on 20 May 2010: the brief again states that Aranda House is only a short term holding facility and your reply to Ms Williams’ letter is in that effect. I’m not asking you to read those documents, but does that sound familiar to you, those official visitor reports and the replies?---Yes.

Yes. Having received those official visitor reports, you must have had by that time some clear picture that Aranda House was inappropriate for young people; that’s correct?---Well, the first thing I did was make sure that I visited. And I did. I also accepted that the advice of the Department and also the staff that were managing the juvenile detainees.

But my question is about the appropriateness of the facility. And even if children were being held there for a week and no more, not having outside recreation areas is inappropriate; you would agree with that?---For children?

For detainees?---For detainees.

Yes. For detainees?---It would be advantageous for outdoor areas, but as you say, Aranda House was an old facility. It was aged.

Minister, yes, it was aged, but - - -?---Yes.

- - - what I’m asking you to do is consider whether from the perspective of the welfare of the detainees whether it was appropriate for juvenile detainees to be in a centre where they were unable to have outside exercise and run around?---Sure. But you did mention the complexities of being a politician and a Minister. And the complexities in this case here was getting Cabinet to agree to further taxpayer investment into a facility that - - -

Sorry. Minister - - -?--- - - - was aged.

Minister, you agree that it was an inappropriate facility for youth to be detained in for periods up to a week, where there was no opportunity to have any or very much outside recreation?---I’m not going to agree to that, counsel. Because I saw that facility for its purpose. It was to house high support needs youth. If you ask my opinion, “Should it be a more comprehensive facility with outdoor areas and attached facility”, that would have been better. That would have been a lot better. But I inherited Aranda House and I worked with that. But remember my input into Cabinet was also about delivering new facilities in juvenile justice.


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I hear your answer, Minister, but with respect it’s not about you, it’s about the children. We have heard much evidence in the course of this Commission about the need for children to be in appropriate environments and as a school teacher of many years standing, I suggest to you that it would be very easy for you to accept that a facility where children – where young people are detained and not able to have sufficient recreation, where they are being held for periods of up to a week, is inappropriate. It’s - - -

MS BROWNHILL: Well, I object to the question. The Minister was asked about appropriate. He has expressed his view about that. Whether it is easy or not for him to accept is irrelevant in the sense that he has already answered the question. He was asked about the term inappropriate; he refused to adopt it.

COMMISSIONER WHITE: That is true. But I think Mr McAvoy took a different approach to it. He wasn’t asking for him to answer as a Minister with competing priorities and budgetary constraints, but as a person with all the background that he has bringing those eyes to bear. That’s all you were asking, is it not?

MR McAVOY: That’s the question, Commissioner. And I press it.

COMMISSIONER WHITE: You can.

THE WITNESS: Let’s add another dynamic, an important dynamic to that.

MR McAVOY: Minister - - -

COMMISSIONER WHITE: No. Let him do that, Mr McAvoy, rather than .....

THE WITNESS: Indigenous culture. And that’s where my leavings, if I may be so bold, as to say on country. That’s where Aboriginal kids should be in terms of the juvenile justice system. On country. That was – I have spent more than half my life working towards this. So, Mr McAvoy, certainly. Certainly. It was the best that I had. Was it appropriate? No, it wasn’t appropriate. Could we have done better? Yes, we could have. Did I have ambition to do that? Absolutely. Did I achieve that? Not yet.

MR McAVOY: Thank you. On 15 April 2010 you received another official visitor report from Winnifred Burgess regarding the problems of girls’ accommodation at Don Dale. If we can look at the supplementary tender bundle document 10, please. Sorry. That’s a later report from 5 August where she raises the issue again.

COMMISSIONER WHITE: Which document did you want –

MR McAVOY: I understand. Can we look at document 8, please.

So that’s a letter dated 15 – or received 15 April. If you can see the date stamp on the top.


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COMMISSIONER WHITE: Have you got that, Minister?---I have got it on the screen.

Is that good enough for you?---Yes. Thank you.

MR McAVOY: And it’s an official visitor report from Winnifred Burgess, who I referred to earlier, mentioning that there is a problem regarding girls accommodation. And she suggests raise the issue of a demountable being made available for girls to sleep in. Do recall that correspondence ---No. I don’t. But I recall a lot of interaction with Mrs Burgess over my time as a Minister.

And particularly about accommodation for girls at Don Dale; is that correct?---That was a very challenging issue.

Yes. And so if we can now just go to document 10. Thank you. And it’s a draft brief dated 4 August. And if we can scroll down. You can see it’s in relation to a response to a report from Winnifred Burgess regarding her visit to Don Dale youth juvenile detention centre and in the background you can see that she visited on 4 August 2010 and she again asked if it’s possible to – for female detainees, and you can see in the current situation, under the heading Current Situation:

Ms Burgess requested if it was possible to provide female detainees with their own teacher to provide a separate classroom from the males and queried why DDJDC –

Don Dale Juvenile Detention Centre –

could not provide separate sleeping accommodation for male and female detainees.

So it’s the same issue raising its head again, Minister?---Yes.

Do you accept that. And did you – do you recall doing anything in response to those reports from the official visitor in relation to the accommodation for females at Don Dale?---I recall this being a conversation with the CE of the department, with the Commissioner of Corrections, with the official prison visitors. It essentially led to Cabinet submissions for minor new works and infrastructure upgrades to address this issue.

Yes. Is it – is it correct that there was a Cabinet proposal in 2009 to deal with this issue of separate accommodation for the females which was rejected; do you recall that?---No. I can’t recall the dates on that. I’m sorry.

Do you recall whether a proposal was put to Cabinet in relation to accommodation for females that was rejected during your term?---I can’t – no. I can’t recall that.


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But it’s clear that the accommodation arrangements for females in the Don Dale Juvenile Detention Centre was a problem and a continuing problem for you as Minister and for the management of that facility?---Especially reflecting the rising numbers of detainees.

Do you recall whether you were able to ultimately do anything to assist in ensuring a secure and safe environment for the females in Don Dale Youth Detention Centre?---I followed the advice of the department officials and we conducted a significant infrastructure upgrades to address that.

Do you recall when that was?---No. I can’t recall the dates of that. But they are in the documents here.

We might come back to that, Minister. As well as the reports from the official visitors you also received ministerial briefs. I think they are called flash briefs?---That’s correct.

In relation to injuries to staff or detainees?---Any critical incidents were always recorded in the flash brief process.

If we could just turn to annexure GM11 to the Minister’s statement. Could you just have a look at that for a moment?---Thank you.

That’s not the document I’m looking for. Sorry. If we can go to annexure GM4. I apologise for that, Minister.

MR GEORGE: Your Honour, might I –

MR McAVOY: Do you want me to close the screen? Is it about the document on the - - -

MR GEORGE: It does.

MR McAVOY: If we can just come close the screen. Do you want to come to the bar table?

MR GEORGE: I will. Thank you, your Honour, Commissioner. Andrew George for Mr Morgan. I see this document has come up on the screen clearly relates to my client. If I could express just firstly a brief, a very brief general frustration, and that is this: that the documents that we were provided with are not the complete set of documents that the Commission might have and that other parties such as my friend to my left here might have. So I have not seen this document before. It clearly, or appears to, on the face of it, relate to my client.

The same incident occurred when the document that has become an exhibit relating to my client’s offer of further casual employment was tendered. It’s not a document that we have been provided with or seen. I don’t know what’s in this document, it


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may be relatively uncontroversial in the context of what has already been tendered to this Commission, and I accept that. But I just express that frustration on behalf of my client, that the process of the provision of documents is, from our point of view, unsatisfactory.

COMMISSIONER WHITE: Yes. Thanks, Mr George.

MR GEORGE: Having said that, I will let counsel get on with it and I will pay close attention.

COMMISSIONER WHITE: It seems to me that perhaps you ought to have a copy of the document, Mr George, so that you will be in a position to make whatever submissions you need to make about it. Perhaps, Mr McAvoy, Mr George could be provided with a copy of this document?

MR McAVOY: I’m sure that that can be done easily, Commissioner. I don’t understand Mr George’s client to be a witness though.

COMMISSIONER WHITE: I would have thought that he would be having adverse notices given to him though?

MR McAVOY: I’m not aware of whether any have yet – have, my apologies, Commissioner.

COMMISSIONER WHITE: In the which case one would have expected that those documents might have been provided. If they provide the source of some of the support for the adverse statements.

MR McAVOY: I accept that, Commissioner.

COMMISSIONER WHITE: Are there any hard copies available at the bar table from those assisting you, Mr McAvoy, so that he could have an opportunity to look at it while the Minister is there so that he can keep track of what’s happening. Because we don’t always see the whole document on the screen.

MR McAVOY: There’s a – there are a small number of similar documents that I am going to take the Minister to and I - - -

COMMISSIONER WHITE: Relating to Mr George’s client?

MR McAVOY: No. No. I don’t think – I’m told that we are not going to otherwise mention Mr George’s client.

MS BROWNHILL: I don’t know if it assists, but we understand that the Minister’s statement, this document, is an annexure to the Minister’s statement. That has been uploaded into the Virtual Evidence Room, including all of the annexures.


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MR GEORGE: That’s no doubt correct, your Honour. But the difficulty is that we appear to have only selective access to the documents in that room, as it were. We don’t appear to have full access to all the documents that are uploaded to that evidence room, if I can call it that, and so we are reliant on the good officers of those assisting Counsel Assisting to be provided with documents that are relevant to our client.

COMMISSIONER WHITE: Alright then. Well, Mr George, maybe you could take up the question of access to the documents that are relevant and the virtual data room. In the meantime I will request that you be given whatever documents are relevant to this part of the evidence so that you can follow it and make whatever submissions about leave to cross-examine as you see fit. Will that assist you in the short term?

MR GEORGE: That assists greatly, your Honour. And thank you for that direction; it’s appreciated on behalf of our client. I have had a very brief glance whilst standing here, it doesn’t appear to contain anything that is controversial in the context of evidence already before the commission.

COMMISSIONER WHITE: Alright.

MR GEORGE: Thank you, your Honour.

COMMISSIONER WHITE: Thanks, Mr George. Yes. Thank you, Mr McAvoy. We can perhaps proceed then. It doesn’t seem to be an issue that is being raised that doesn’t need any physical action for the document.

MR McAVOY: Thank you, Commissioner. Just before I have the document returned to the screen, perhaps if I ask that the operators take us to document Ringtail number DCS0001.0011.0062. You can see the document on the screen, Minister?---I can see the document on the screen.

COMMISSIONER WHITE: You have got a hard copy of that document though, haven’t you. Is that what you’re holding?---That’s correct, Commissioner. This was given to me on the way in when I entered the Commission this morning.

MR McAVOY: Thank you, Minister. You can see that – the 30 April 2010 brief relating to an alleged assault on a detainee by the youth worker?---Yes.

Yes. On 1 November 2010 – if you can just turn to GM4, please. There’s – you will see a – there’s another brief dated 1 November 2010 in relation to an assault on a detainee by staff at Don Dale, the Don Dale centre. Do you see that?---Yes.

If I suggest to you that there were further complaints which came to you by way of briefs for assaults on detainees by officers in December 2010 and April 2011, would you accept that you received those briefs. Does that sound familiar to you?---Yes.


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And I suggest to you that the first document I attempted to take you to was a brief in relation to a juvenile detainee’s alleged assault on two officers and an associated escape from April 2010. The point of taking you to those documents and incidents, Minister, is to suggest to you that, while taken alone they may not amount to much, the number of incidents, particularly in a relatively short time between April 2010 and April 2011, are matters about which you should have had concerns, about the levels of violence in the youth detention centres?---Yes. I certainly had concern.

If you then take those concerns about the levels of violence in the youth detention centres and then add them to the official visitor complaints that we have just been through, over pretty much the same period, you would agree that the picture that that creates is one where it’s – it would be difficult to say that there was a safe and secure environment for detainees who are in your care in those facilities?---I think we need to add in the resolutions that were also provided to me, Mr McAvoy, as a flash brief process was a documentation of the incident and an official prison visitor letter was a documentation of the visit. The Department of Corrections also responded, and you can see in each of these flash brief processes that there were resolutions to these incidents that were credibly documented. I also use the opportunity at the weekly CEO meetings with the CEO of the Department of Justice and the Commissioner to discuss any of my concerns and to seek further advice. But there is a fulsome process; it’s not just as you have described it.

I wasn’t suggesting that you didn’t respond, Minister. The reason that we are able to draw your attention to these matters is because they are the subject of ministerial briefs, and each one of the ministerial briefs has its own recommended action. The issue is that the prevalence of violent interactions between detainees and staff, and the prevalence of reports from the official visitors during the same period, or roughly the same period, should raise concerns with you as the Minister about the security and safety of those detention facilities. Did you have those concerns in 2010 and 2011?---I had concerns and it was far greater than just facilities. It was about programs, it was about operations, it was about rising numbers of juvenile detainees and the high complexity of their needs. I was looking at a holistic perspective and as a Minister with the opportunity for guiding a strategic direction of government. I was totally focused on that. These operational procedures, of course, caused me great concern.

Are they matters at which you took up with the CEO of the Department of Justice and the Commissioner in your weekly meetings?---Yes. Yes.

And were there broader strategic directions that you formulated to help deal with this rash of violent interactions?---Yes.

And can you tell us what they were?---My first input into a strategic level was about the level of education program and engagement of the detainees. It was interesting this morning, listening to the professor talk about the management of a secure unit. I was very much guiding from my life perspective, from my educational background, from my teaching perspective. Unfortunately you don’t get everything you want; it


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takes time. But I was certainly providing a new strategic direction for the department.

Well, it’s fair to say that that direction wasn’t – didn’t appear to be having effect during the period these incidents continued to occur?---No. I think it’s fair to say that my strategic direction would have required considerable more time to implement, and considerable more resources.

At what time frame you are talking about, Minister?---I embarked upon this privileged position in 2009, it was a very steep learning curve, and as I say I was clearly focused on – from my learnings – the opportunity of continuing these developments and changing this system into 2012 and beyond. Unfortunately I received a major setback in terms of us losing government. We have been returned to government now and I’m very much looking forward to the opportunities of continuing that work with my ministerial colleagues.

But it’s not your portfolio in this term of government?---No. It’s not. But I’m very fortunate to be in a very collegial team of government with some very talented members.

And I take it from your answer just a moment ago that your strategic plans for the youth detention facilities were ones that extended past the term of government in which you were – you existed at that time. So past 2012 into later years?---Absolutely.

Were there any immediate actions that you had decided to take?---Well, the Department’s advice was pretty clear on pragmatic resolutions around infrastructure. I accepted that advice, and it’s quite well documented, the investment government provided and what we did. It was clearly an interim solution, and you have outlined at the purpose-built facility was not delivered. I also saw the opportunity, like the Barclay work camp, of creating alternatives. And I will continue that work. In terms of my strategic direction I saw great challenges within the system regarding the youth workers, and their training and their capacity. I saw great challenges within my own teaching colleagues. I had known about the Don Dale Centre and the education program there for many, many years. I have known teachers there. And becoming the Minister and touring those facilities I got a first-hand view of how limited our reach was. I challenged the system around the structure. Education had the budgets and the resources for the educational programs; I was a Minister in charge of the wellbeing and safety of the detainees and the infrastructure. That to me was not good common-sense management. I yearned for the resources to be able to change our education programs, particularly in relation to an industry focus. I did a lot of talking, sir. I did a lot of lobbying. I did a lot of work. And as a junior Minister I was in totally focused on trying to increase my position in the pecking order, my position within the executive government and have that opportunity to deliver what I believe will make a difference.


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COMMISSIONER WHITE: Minister, you did have, however, within your portfolio the training of the Youth Justice Officers. And it might seem, looking at those incidents to which Mr McAvoy has drawn your attention, that at least in part it might be attributable to a want of adequate or directed training for those Youth Justice Officers to manage these sometimes very difficult children with behavioural problems. Do you have any recollection now or from your review of the documents whether that achieved any priority?---Yes, Commissioner. They are very good points. When I looked at the youth workers within our centres I saw that there was a need for the important elements of recruitment, training, and retention. And we were struggling in all of those areas. I can remember the metrics around the enormous amount of casual positions that we needed to fill vacancies. It reflected a system that didn’t have good continuity and coherence. So the first thing I looked at – and I’m not going to take the credit for this. I’m talking about a good collegial approach with very experienced Ministers and developing those important professional relationships. And it was the Attorney-General and Treasurer who started to guide me down a path that was available, and that was to look at upping the classification of workers, increasing their pay and conditions, to try and attract the right people. So we were working within the tools that were available.

Thank you.

MR McAVOY: As you have raised the subject, Minister, and the Commissioner has asked you some questions about it: coming from an education background were you satisfied that your Youth Justice Officers were given enough training to do the job that was asked of them?---What I discovered as a new Minister was the training reflected reactionary-type training. The PART training, for instance, it was about responding to critical incidents. The immediate agenda was to make safe. And I had understood that. I had worked in that system. I had first-hand experience in the UK. By the way, counsel, it wasn’t a detention centre, it was a learning support centre run by the borough of Suffolk. There was a vast difference there in terms of terminology and the operations. I started to look at how we could structure more appropriate curriculum offerings, more appropriate industry based programs. I know from experience that when you are dealing with English as a second language then you can use tactile approaches, good hands-on approaches to combine literacy, learning, with real industry outcomes. It’s what I had been doing in the alternative program for five years. I embraced each element of change that was real, that was available, and I continued to work at those longer term objectives of new infrastructure and those larger investment items.

Just going back to the question of training for officers. The training that the Youth Justice Officers were offered while you were Minister: do you believe that that was satisfactory for them to carry out their tasks and obligations as youth justice workers in the detention facilities in the Northern Territory?---It was satisfactory in a traditional sense, and in a traditional system. But I would like you to think of an abstract around officers trained with that response training, that critical incidents training, that then were introduced to a music program. Now, we used to buy in the specialists, but when youth officers were able to participate with the detainees in


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exciting and innovative curriculum programs, then that’s the training, the on-the-job training that I was focusing on. And I was continually encouraging Corrections and Education to look at where we could enhance those programs, that engagement, that excitement factor for the detainees. Because not only did it deliver better educational outcomes, it delivered far better wellbeing within the centres.

Thank you. If we could turn to tab 15 in the supplementary tender bundle, please. Could you have a look at that letter, Minister, and just refresh yourself. Refresh your memory, please?---Yes, sir. I have read this letter a number of times over the past few days.

Yes. Do you have any memory now of when you received it in August 2011?---I don’t have any recollection of immediate dates and times, I’m sorry. But - - -

COMMISSIONER WHITE: Does that matter, Mr McAvoy?

MR McAVOY: No. I’m just trying to understand where it fits into the Minister’s memory, that’s all. It’s of no consequence.

You will see that it’s a letter from the Central Australian Aboriginal Legal Aid Service, CAALAS?---Yes.

To you. Dated August – 15 August 2011. And it refers to a meeting that was held with you on 20 May 2011; can you see that in the first line?---Yes.

And you will see towards the bottom of the first page there’s an issue raised about the use of seclusion and CAALAS’s concern about the frequent and lengthy use of seclusion within the Alice Springs Juvenile Detention Centre?---Yes.

And they go on to say that they have been advised by their young clients that they are being held for eight hours or more for minor infringements. Do you recall considering that letter?---I can’t recall the specifics, but I can recall some very good learnings meeting with CAALAS and NAAJA and the other advocacy groups over the period of four years. Yes.

So their letter goes on over the page 2 and page 3. Talking about CAALAS’s concerns and acknowledging that seclusion may be necessary where there are threats of self harm, but worries that it might be used in those sorts of circumstances without being accompanied by counselling and CAALAS’s concern that they have been informed by staff at the Alice Springs Juvenile Detention Centre that there was currently no procedures manual for the Alice Springs Juvenile Detention Centre.

COMMISSIONER WHITE: So what’s the question that you want to ask?

MR McAVOY: Well, there is a reply. I’m just refreshing the - - -


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COMMISSIONER WHITE: I think the Minister said he has thoroughly familiarised himself with this letter over the last couple of days.

MR McAVOY: Okay. I will take him to the headings.

COMMISSIONER WHITE: Yes. Thanks.

MR McAVOY: So there’s also comment and concern raised on page 3 about security ratings and privileges. Do you see that?---Yes.

Some numerous concerns raised in respect of staffing?---Yes.

And then on page 5: limitations on calls to their lawyers; can you see that?---Yes.

And, further, concerns about the facilities at the Alice Springs Juvenile Detention Centre. And you will note with respect to each of the concerns raised by CAALAS, they have made recommendations to you as to how those circumstances might be fixed. You can see that?---Yes.

Now, the - - -

COMMISSIONER WHITE: Mr McCarthy said there was a response. Are you going to take us to that Mr McAvoy?

MR McAVOY: I’m taking the witness to it right now, Commissioner.


MR McAVOY: If we can then go to tab 18 in the supplementary tender bundle. Sorry - - -?---16?

No, tab 18. Okay. And you can see that’s a letter from yourself on your ministerial letterhead to Mr Mark O’Reilly, the principle legal officer at CAALAS. If we can scroll down, please. Have you had the chance to also read this letter?---Yes. And also at tab 16 the ministerial brief and reply that would have informed that letter.

Yes. And the – if we can just go to the second page of the letter, please. And, so, you respond to each of the issues raised under the same headings; yes?---Yes.

In your reply. And then if we go to the final – I think it’s the final page – the next page. And we see that that’s – if we can just scroll down a little. A bit further. That you have signed off on it on 12 October 2011.

COMMISSIONER WHITE: Are you suggesting that the Minister did or did not respond to CAALAS’s concerns?

MR McAVOY: I’m about to put the question to him, Commissioner.


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MR McAVOY: Minister, having familiarised yourself with your response, I suggest that the way in which the letter approaches the very serious concerns raised by CAALAS is very formalistic in reply, and to some extent dismissive of the concerns raised by CAALAS. Would you like to consider that letter again?---No. I don’t need to consider that letter again. As I drew your attention to, if you look at the ministerial brief, it is also very formal in its response. It takes a position of unsubstantiated allegations as well. I try and leave that aside. It was trying to do the best we could in terms of the requests and recommendations.

The letter from you in reply to CAALAS, you will recall, Minister, was sent at a time, October 2011, when the incidents of violence that we had spoken about earlier – the official visitors reports had been made. It was a time, I suggest to you, where you ought to have had concerns about the safety and security of the detainees and the response from you in the letter is not one which properly engages with the issues raised by CAALAS?---The letter, as I have said, reflects the ministerial brief. It was probably important to put in context, too, that the Alice Springs Juvenile Detention Centre was new; we were developing that, the systems, the controls. There was a good criticism in there that I read back that I hadn’t remembered, but it was about not having an operational manual, which was briefed to me as a Minister that we were developing. So there is a lot of dynamics in play at that particular time. And the Alice Springs Juvenile Detention Centre was a government investment strictly in good faith to try and manage juvenile justice and deliver better outcomes for the kids from Central Australia.

Minister, I want to now take you to Christmas night and the early hours of Boxing Day 2011. Are you familiar with that period. I think that made the front page of the NT News, so - - -

Yes. GM17, please. So this is the ministerial about the incident at Don Dale detention centre?---Thank you.

Minister, knowing what you knew, knowing about the allegations of violence, knowing about the official visitors reports, knowing about the complaints raised by CAALAS, albeit that they were raised in relation to the Alice Springs detention centre, the event that happened on Christmas night couldn’t have come as a complete surprise to you, I suggest.

MS BROWNHILL: I object. How can the Minister have predicted the event? And how is it relevant in any event?

MR McAVOY: Commissioner, I press the question. I’m not asking him whether he predicted it. I’m suggesting that, knowing the system was under a lot of stress, that an event like that is one that would not have come to him as a surprise.


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COMMISSIONER WHITE: I think it’s a fair enough question, Ms Brownhill. I’m not sure where we will go with it, but you can ask that question, Mr McAvoy.

MR McAVOY: You have heard the question. Do you wish me to repeat it?---No. I think I understand your question. And your question is that I should not have been surprised. I visited that centre on a number of occasions. I looked at security and I thought that it was a secure facility, but it was also a humane facility. When that incident happened, if you want to ask me, as Gerry McCarthy, was I surprised after working in the bush and being in the Territory and all my life experiences – no, that didn’t surprise me; the ingenuity of those youth to conduct that incident. However, I still believed in what we were doing. I still trusted in what we were doing. And I was still advised that we were managing each and every incident that came before us to the best of our ability.

Minister, it’s the case, though, that this incident came after a spate of incidents over time and can be seen as an eruption, if I can put it that way, in response to the circumstances in when people were being detained?---I disagree with your theory. From my life experience.

And you were briefed by the department, Mr Middlebrook, and that’s the brief in relation to that incident?---Yes.

Do you recall whether there was any concern raised by Mr Middlebrook as to the capacity to provide safe and secure facilities for the detainees?---We were all concerned. Yes.

And that concern, it was about the nature of the facilities as well, if I can – if I properly understood your last answer – as well as the ingenuity of the detainees. So it wasn’t just about the kids, but it was also about the conditions?---Well, let me put it this way: the ingenuity of the youth who exploited that infrastructure, who escaped and put their self at great risk, showed that that infrastructure was vulnerable. I accept that.

Minister, following that event you were asked to sign off on orders to place children in adult facilities; is that correct?---Yes.

Are you – I withdraw that. That’s a fairly extreme measure in terms of the management of juvenile detainees, isn’t it?---Well, let me reflect on the first way you asked that question, as that was an interim measure of management. As I said, the vulnerability of that facility had been seriously exploited. I accepted the advice of experienced Correctional Services Officers, including the Commissioner, that we needed to detain these youth for a period of time. It was a limited time. Before then the judicial processes could be conducted and I – as the Minister who – you are challenged with lots of decisions, lots of very complex and challenging decisions. Yes. I chose that decision to make sure that we kept those kids as safe as I could until those processes were implemented.


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Minister, you told me in response to questions many times that you brought your common-sense to bear on your role as Minister?---Yes.

As you should?---Yes.

And I’m – I am asking you whether, applying that common-sense, taking into account what you knew as a Minister, the response of placing juvenile detainees in an adult correction facility was an extreme measure?---It was an extreme measure, and it was a measure – and I can’t remember my mental processes at the time, but I’m going to assume for the purpose of the question that my processes at that time would have been evaluating the extreme trauma that those juveniles would have been through, the high risk nature of their offending, and how we needed to basically keep them safe and secure in terms of dealing with a critical incident. I probably used a lot of my thinking around managing high support needs, complex behaviour and emotional youth over many years into that decision, and also I worked in partnership with Corrections, who provided me with the departmental response to making sure that we kept those kids safe, secure, and then the judicial processes that would follow were implemented.

Minister, if you were forced to take the extreme measures of placing juveniles in adult correctional facilities, doesn’t that say to you that there is something dramatically wrong with the system?---Certainly in that critical incident. Yes. Exposed a lot of our vulnerabilities in the system.

And so you – you explained in great detail earlier about the thought processes going into the construction of the Darwin correctional precinct because it was a place that needed to be replaced, they needed a new centre because it was unsafe. How then is the Don Dale centre different to what the situation that Berrimah prison was in?---The Don Dale centre was vastly different from the Berrimah prison. But if we want to talk about this incident, these youth were placed in the Alice Springs correctional centre, which again was vastly different. I had far more confidence and we had done an enormous amount of work. But these kids weren’t to be left in an adult correctional facility. It was a very short term interim - - -

But you accept - - -?--- - - - process.

But do you accept that even placing them in there for a short period is – it’s an inappropriate response for juveniles to be placed in an adult facility?---And as I have said, sir, that was my decision.

COMMISSIONER WHITE: What alternatives did you have, Minister, at the time, given the nature of that incident, which did involve a lot of property damage?---The juveniles would have been transferred to the Don Dale centre. I can’t remember the exact advice but I’m sure it would have been around the vulnerability of Don Dale after this critical incident.


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So did you have any other options for placement for these juvenile detainees, apart from the adult correctional facility?---A very inappropriate option of a watch-house.

Well they are still in an adult facility effectively, aren’t they, if they are there. Yes. Alright. Thank you. Are you going to be much longer with your evidence-in-chief, Mr McAvoy, I’m just noting the time.

MR McAVOY: Yes. I have been looking at the time myself, Commissioner. I think it’s probably 10 minutes worth at the outside, but then there is some cross-examination. So perhaps we should take the break.

COMMISSIONER WHITE: Let’s see if we can finish the evidence-in-chief then before we take the lunch break, if you don’t mind. And then we can start fresh afterwards with the cross-examination.

MR McAVOY: I’m very happy with that course, Commissioner.

COMMISSIONER WHITE: So perhaps if we could look to wind up at quarter past 1.

MR McAVOY: I will do my best.

COMMISSIONER WHITE: Thank you. That’s 10 minutes.

MR McAVOY: I just want to take you now to the review by Jodeen Carney of the youth justice system in the Northern Territory. Tab 17, please, of the supplementary bundle?---Thank you.

I expect that you’re quite familiar with that document, Minister, although you may not have read it for some time?---That’s correct, sir. I haven’t read it for some time.

But it was something that you considered carefully when it was first released?---It was commissioned by the Attorney-General, it was delivered to the Attorney-General and I was very fortunate to have two interviews with Ms Carney in terms of lobbies for my ideas around improving juvenile justice in the Northern Territory.

So you can see that the date of the report is September 2011?---Yes.

So it’s very pertinent to the time frame that we have just been discussing; do you accept that?---I accept it was very pertinent to the time frame. It was also very pertinent to the spike in juvenile crime in Central Australia that we were dealing with as a government during that period as well.

Yes. I just want to take you to three aspects, although there are many in that report that were relevant to your role as Minister. Firstly, if you can go to page VII of the report. You can see on that page there is the executive summary. Are you on that Page, Minister?---That’s correct. Yes.


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I just want to take you to recommendation number 4. And I’m not sure, and it’s probably not necessary for you to answer this question about your recollections at that time, but the report deals – if you will accept from me – in some detail with the need for and the importance of data collection in terms of managing youth within the youth justice system. Do you accept that?---Yes.

And that’s informed recommendation number 4. Is it fair to say that in the education sphere data collection is very important?---Yes. Of course.

And you have come to the role as Minister understanding that. Did you have any concerns about the level of data collection within the Department of Correctional Services in relation to the youth detainees?---I had some concerns about data collection and reporting around the whole area of Corrections and there is an interesting cross-over here, because Jodeen Carney, as a member of the Opposition, certainly educated me in no uncertain terms over two estimates periods, two years in a row, and the first year I had prepared and directed the Department to prepare very specific data answers, and Ms Carney used that opportunity to tear the strips off me as a new Minister. The following year we came back and prepared again, so she by the way, Commissioner, she tore the strips off me the second year as well. But it was an area that needed improvement. But it wasn’t just about Corrections, it was about – it was about – excuse me – the Attorney-General’s area as well. It was about justice.

Yes, Minister. The recommendation goes further than just Corrections. It talks about the lack of transferrable data between various agencies of the Northern Territory Government, and that – and the difficulty this creates in provides a continuum of care and understanding longitudinal effects. So that decisions can be made on an evidence basis rather than some other form. Now, are there specific things that you did or set in train as a result of that – the recommendation to improve the data collection systems of the department. Can you answer that question?---I can answer that question. But I’m not going to claim credit. I can say that from a government perspective I think the first point would have been the establishment of the Youth Justice Unit which was also a recommendation, to start to look at honing in on youth justice and youth justice initiatives. The youth justice framework also commenced under our government in 2012, so holistically, if – me, personally: no, I can’t give you any answers what I personally did. But holistically based on the recommendations, that this report that government started moving in these directions. Yes.

So the answer is from a position as Minister for Correctional Services there weren’t any special projects that you can now recall that dealt with the need for a data collection upgrades?---Not at all. Between 2009 and 2012 we had seriously improved our data collection and our data management and our data resources around managing the programs, educational programs, therapeutic programs. Around managing the numbers, around managing the industry programs. We had done a lot of work and we were able to show government – because essentially it came down to a very experienced Cabinet who challenged me every step of the way.


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So I saw it as a pragmatic process to be able to take better data, better reporting to Cabinet to achieve those important Cabinet decisions and submissions that I was after.

I will move along Minister. If we can turn to page 6 of the report, please. Sorry. It should be VI. My apologies. Minister, if you could read to yourself the second paragraph on that page?---I’m on page 6.

VI?---So chapter 1, introduction. Because I’m - - -

No. Executive summary, the bottom right-hand corner?---VI? Okay. Yes. VI. Yes. The second-last paragraph?

No. The second from the top?---Second from the top?

COMMISSIONER WHITE: The second from the top. Yes. It’s about residential rehabilitation facilities?---Yes. Thank you.

MR McAVOY: Have you read that, Minister?---Yes.

You were aware that juveniles were being detained in custody because there was no suitable place for the court to give them bail to; are you aware of that?---Yes. Far too often. Yes.

And Ms Carney in her report described it as an awful state of affairs; that’s correct?---I believe so.

You would agree with that assessment?---I agree with that.

The provision of bail residences was not within your portfolio area though, was it?---No.

I ask whether you, upon receiving this report or at any other time, engaged with the Minister for Families and Children who did have the responsibility to discuss how more bail residences might be made available to the community. Did that occur?---Discussions?

Yes?---Yes. And government initiatives as well. Yes.

What were the government initiatives?---I think one that would come to mind immediately were the establishment of community safe houses in Alice Springs. But my concept around bail hostel is what I was very cognisant of and trying to progress.

Because you had concerns about overcrowding in youth detention centres as well; that’s correct?---There’s no doubt about that. However, my concept of a bail – a residential bail hostel relates to keeping that young person in the community.


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Yes. I understand that. The issue is – and I am sure you’re aware of it, the more kids you can – or more young people you can – that can be given community placement rather than remanded in custody, the greater the effect on reducing the overcrowding in your facilities; that’s correct?---That’s a limited way to look at it, sir. The greater outcome in terms of more effective rehabilitation and reintegration is what I was focused on.

Certainly. But in terms of the very real and present problem that you had with overcrowding in your facilities, that was one issue that you could have pursued and you’re saying you did pursue with the Minister for Families and Children?---I pursued that on a wider sphere of my input into Cabinet and Cabinet debate and Cabinet discussions. But like I say, it wasn’t premised on overcrowded conditions. It was premised on the New Era of Corrections, thinking and ideology. And there is significant investment I could demonstrate around our community corrections investment during that period, as I was the Minister and had carriage of that new Labor Government policy.

COMMISSIONER WHITE: How are we going, Mr McAvoy?

MR McAVOY: There is just one more part from this report. We are very close, Commissioner.

Page VII, please. If you look at the first paragraph, under the heading Conclusion. You can see that Ms Carney has said in the third sentence:

However, putting young people in detention centres is not a medium to long term solution to reducing crime. Detainees leave detention centres and go back into the community. Unless their needs are addressed how can we expect them to change their behaviours.

The suggestion there is that detainees’ needs, and you would – I ask you to read that as rehabilitation needs – are not being addressed at the present time. Do you accept that that’s the criticism from Ms Carney?---I accept that as criticism. Yes.

And did – having received that criticism, was there any action that you were moved to take to perhaps provide for the children’s needs to be addressed more fulsome – in a more fulsome manner?---There’s no doubt about that. The tension for me - - -

COMMISSIONER WHITE: I understand, Minister, that probably that conclusion aligned with your own views?---Yes, Commissioner. The tension for me is – and from my learnings as a Minister, but balanced with my life experience, we have to have a residential facility for high support needs youth.

COMMISSIONER WHITE: Yes?---There has to be that place. I cannot deny that. However, for the majority of our youth I’m far more focused on what I call the regional juvenile justice centre, and the opportunities to link our youth with industry. I haven’t got the time to go through it, I may present a paper to you, but it just make


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a lot of sense to use those cultural nuances, those cultural influences to connect the family, to connect the significant adults. The elders program: it was great to hear that spoken about this morning. I was part of that program and part of that program’s development. I honestly - - -

COMMISSIONER WHITE: Can I interrupt you to say that I think Commissioner Gooda and I would be most grateful if you found the time in your ministerial life to put together or direct someone to put together a paper about your ideas about regional rehabilitation models for young people?---Thank you, Commissioner.

We would find that of immense assistance?---Thank you.

MR McAVOY: Minister, I have one final question for you, and that is having just reviewed all of the criticisms that arose, the official visitors reports, the incident reports about violence in the system, the very politely put criticisms from CAALAS about the flaws in the system, do you accept that they – the existence of all of those issues leads to the conclusion that there were systemic issues – systemic failings in the system of youth detention in the Northern Territory?---Yes.

And do you accept that as Minister you have to accept some responsibility for those failings?---Yes.

Thank you. Nothing further.

COMMISSIONER WHITE: Thank you. I know it’s cutting lunch short, but think of this, it’s Friday and you might get an early minute at the end of the day. So can we resume at 2 o’clock. There are some lawyers who want to ask you some questions in cross-examination, Minister?---Yes.

Thank you.

ADJOURNED [1.23 pm]

RESUMED [2.04 pm]

MR McAVOY: Commissioners, I should tender – formally tender the supplementary tender bundle.


MS BROWNHILL: No objection.

COMMISSIONER WHITE: No. Thank you. Is that 96? Yes. Exhibit 96 for the supplementary tender bundle. Thanks, Mr McAvoy.


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EXHIBIT #96 SUPPLEMENTARY TENDER BUNDLE 16 MARCH 2017 (RELATING TO GERALD FRANCIS MCCARTHY ONLY)

MR McAVOY: Thank you, Commissioner. I understand there are a number of parties wishes to engage in some cross-examination. Leave has been granted and my learned friend, Ms Graham, is first up, I understand.

COMMISSIONER WHITE: Yes. Thank you. Thanks, Ms Graham. There you are.

<CROSS-EXAMINATION BY MS GRAHAM [2.05 pm]

MS GRAHAM: Minister, I act for the Central Australian Aboriginal Legal Aid Service and the number of people who have been in detention. Minister, in your written evidence you indicated that in order for the Northern Territory Government to meaningfully implement any recommendations of this Royal Commission it will be necessary for targeted Commonwealth funding to be allocated; is that right?---Yes.

And is it your view that that’s the case, not only for addressing recommendations for youth justice matters, but also to address any recommendations in relation to the care and protection of children?---That’s correct.

I would take it from some of your earlier evidence, though, that you would accept that it’s the Northern Territory Government that has the duty of care to the children that are in those two systems?---Absolutely. I use the opportunity in terms of being summonsed as a witness here to make that statement, that it’s a great opportunity for a bipartisan venture with the Commonwealth and the Northern Territory, to progress any recommendations.

And you would agree, wouldn’t you, that ultimately to honour the duty of care that you have to these children in detention, and in the care of the government, that ultimately it falls to the Northern Territory Government to obtain the necessary funds and allocate them to the necessary matters to uphold that duty of care?---Yes.

And, going further than that, to make sure that the children are not harmed by the systems that the government operates?---Yes.

I just want to ask you a question about your time when were you the Minister responsible for youth justice. What, if any, applications were made by the Northern Territory Government during that time for targeting youth justice matters in particular, applications for funding from the Commonwealth Government?---First of all I would just like to clarify in my time, I was the Minister for Corrections.

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Indeed. But part of that portfolio involved responsibility for youth justice matters; that’s right, isn’t it?---That fell under the lead of the Minister who was the Attorney-General at the time. But we certainly were working in a very strong collegial sense.

Am I right, as the Minister for Corrections you were the Minister responsible for youth detention facilities?---That’s correct.

What, if any, applications for Commonwealth funding were made during your time as Minister for Corrections, specifically to address the inadequacies in youth detention facilities in the Northern Territory?---I’m aware of a number of significant natural national partnerships that were operating during my time as a Minister between 2009 and ‘12. I am not 100 per cent sure of any submissions that came from Corrections, but I’m sure that we would find through the Department of Justice and the Attorney-General that there were submissions to the Commonwealth for support.

When the Northern Territory Government is applying its funding to youth justice matters or youth detention matters would you agree that it’s really important to ensure that there is an equality of experience for the children, say, for example, from the Top End as against those from Central Australia?---Do I acknowledge a difference?

Do you acknowledge that when funding is being allocated it’s important to ensure that there is no difference in the experience between the children in the Top End and children from Central Australia?---I think that’s a very good principle of governance. Yes.

And in order to give effect to that principle, would you agree that sometimes that means spending more money on children and the infrastructure and the apparatus of the system, for example in Central Australia, than you might spend in the Top End, because adjustments need to be made to ensure that equality?---Yes. That’s perfectly logical and I think we have probably got an example of that with the government’s significant investment into the community safe strategy in Alice Springs after that rise in juvenile offending. I think it was 2010-11.

I’m going to ask you a few questions now about the transfer from the Aranda site to the Alice Springs site on the adult correctional centre precinct. I can take you to some documents if you need me to refresh your memory. But in March 2011 you sought from the Treasurer $205,000 for the conversion of W-block at the Alice Springs correctional centre so that it could then be used to detain children; is that right?---That’s correct.

And that money was used to convert the facility by way of some fencing, adjustments to windows and doors, and the installation of security cameras; that’s right?---That’s correct. And so the funding that was sought and applied to that conversion process only focused on security measures; do you agree with


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that?---Security and making the facility safe, yes. It was purpose-built as an open security facility to support prisoners living outside of the main prison.

And it was a facility that was built specifically for adult prisoners, not children prisoners?---That’s correct.

And there was no renovation or conversion done to give effect to the therapeutic or rehabilitative aims of a detention centre for children; do you agree with that?---Yes. You’re right. It was a conversion of infrastructure and then it became the challenge to apply the programs that would operate out of that centre.

And so there were no amendments made to the design or infrastructure to facilitate those programs or other services being provided to the children. That’s effectively the case?---You’re right there. No. There was – yes – some constraints in delivering appropriate programs there. However, my direction to the Department was to start to explore community-based activities. I was specifically focused on the ..... cattle yards and the rural operations too. And I had some connections with the Alice Springs turf club as well. So I was trying to progress I saw the challenges and I saw the constraints and I encouraged Corrections at that time to certainly be looking at outreach programs outside of that facility for as many juveniles that were available under the classification system that I was working within.

And so as far as you were concerned, the thinking was that the move from Aranda House to W-block was a short term solution to the crisis that had happened in particularly the numbers of juveniles that had increased at that time, but it wasn’t that particular facility designed to be a long term solution as a place to detain children in Alice Springs?---That’s correct. But I think we should broaden it. It was a cross-agency, part of a cross-agency response in relation to a particularly difficult summer here in Alice Springs; the rise in youth offending. And there was a number of investments in support of youth services, youth activity, youth programs, community safe houses and the Alice Springs Juvenile Detention Centre was part of that suite of initiatives.

In terms of the facilities – and my focus is particularly on the facilities that have existed in Alice Springs, Aranda House and W-block, the Alice Springs Youth Detention Centre –would you agree that where there are failings in infrastructure or design of the centre, that can have the effect of making the experience for the children detained in them a harsher one?---Yes.

And the punishment for a child who’s detained is meant to be just their removal from the community and the loss of their liberty; that’s right, isn’t it?---I don’t view it as punishment, I was specifically focused on rehabilitation and reintegration, and reducing the recidivism rate. That was my clear focus in terms of government policy.


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Do you accept that the conditions and environment of these facilities in Alice Springs have contributed to a more punitive experience for the children detained in them?---I would hope not.

So, for example, Minister, failings in infrastructure such as vulnerabilities to escape or facilities that are not as secure as they ought to be, resulting in children having to be handcuffed more frequently or locked down more frequently: would you agree that those are the kinds of more punitive experiences that children have endured in Alice Springs, because of the failings in infrastructure?---That’s a – they are good examples of failing infrastructure.

And how that makes it a more harsh experience for the children kept in those facilities?---I don’t think we can separate out infrastructure entirely though. I think while we are really trying to create solutions for this it’s also about personnel, programs, therapeutic interventions, community outreach.

COMMISSIONER WHITE: But you don’t disagree with the proposition that if the infrastructure is poor in terms of offering a secure place, which requires then the sorts of things that Ms Graham mentioned, it is a harsher experience than if it were a more purpose-built facility for young people?---Yes.

You agree with the proposition?---Yes, Commissioner.

Yes.

MS GRAHAM: And I just want to take you to a couple of other examples. For example, not having access to water in the cell and not having access to a toilet in the cell. That – they’re the other kinds of infrastructure failings that can make the facility more punitive in terms of the experience that the children have; do you agree with that?---Yes.

And also particularly those examples render a facility vulnerable to a circumstance where personnel, guards, might not respond to requests for a drink of water or the use of a toilet by a child; do you agree with that?---There’s no doubt the human elements within that, for sure.

I want to go to one of the human elements now. You have mentioned in your evidence already that there were real struggles with recruitment, retention and training of staff?---Yes.

I just want you to assume some facts. In August 2011 only 35 per cent of the juvenile detention staff in Alice Springs were qualified following PART training. In May 2012, of the 107 Youth Justice Officers that worked across the Northern Territory, 86 had not completed the three-week juvenile detention induction program, and 70 had not completed the suicide intervention skills training or any youth forensic mental health first aid training. Were you aware during your time as


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Minister for Correctional Services the extreme extent of the lack of training of the staff that were working in these facilities?---I wasn’t aware of those statistics.

Were you aware of the extreme lack of training that existed amongst the staff working in these facilities?---From a holistic point of view, and from a strategic point of view that was one of the areas that I had great concerns about. There was a high turnover of staff. It was difficult to recruit. I’m also now informed by your statistics that that was a significant issue. It was something that we were – we were trying to address.

I just want to clarify, Minister. Do you embrace the proposition that at the time you were aware or were not aware of the extreme lack of training amongst Youth Justice Officers?---Yes. No. I wasn’t aware of the statistical analysis that you have provided. No.

Finally, Minister, I want to ask you about justice reinvestment. Are you familiar with the concept of justice reinvestment being geared towards reducing the number of particularly Aboriginal children in detention, achieving the goals of community safety and social cohesion, and reducing the cost of the justice system by focusing on why crimes are committed rather than pursuing the mass incarceration of Aboriginal people. Are you familiar with that concept?---Yes. And may I say that CAALAS and NAAJA and other justice advocates were very much part of my learnings in that area.

And was that a valuable learnings or exchange of information from those advocacy groups; is that what you’re saying?---Yes.

During your time as the Minister For Corrections, what initiatives, if any, did you pursue to give effect to the principles of justice reinvestment? And, I should say, for children?---That’s a good question, and – I’m thinking in the broader context of the Department of Justice and those – there’s some budget analysis that I could do of programs that came forward. Youth diversion programs in Katherine and Tennant Creek I remember as one. I would really need to go back and refresh my memory on that. But youth diversion. I took the learnings that I have spoken about in terms of a position to try and influence colleagues and to influence Cabinet. I also was very proactive in trying to influence the Department that I worked with. Other examples of real justice reinvestment: the alternative education programs. I know that the government certainly did start to expand and enhance the alternative education program in Darwin and Palmerston but I would need to go back and, yes, refresh my memory about specifics. And, like I say, you could do that through analysis of budget appropriation.

Because the common theme of your evidence, Minister, is that there just wasn’t enough money to do the things that you wanted to do. That’s a fair summary, would you say?---Not just about money. That is a fair summary. It is not just about money. It’s also about experience, it’s also about time and opportunity. The government is a very complex system.


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To the extent that a real barrier was not having enough money, is justice reinvestment a worthy focus of this Northern Territory Government?---I think Territorians should be pleased to hear the most recent announcement, as $18.2 million being appropriated into new Territory Families initiatives. I have got carriage of the most significant investment in the Territory Government’s history into remote housing, for instance. Education has just announced a significant reinvestment into education that was stripped away under the previous administration. So across the board I think now Territorians need to look at our policy around children and putting the child first. And we are particularly focused on early childhood, which is, as an infants’ primary trained teacher, is another area that I have a lot of interest in. For the Minister I’m sure that – our new Minister, I’m sure that justice reinvestment is front and centre of her thinking. She has had a lot of experience in the social justice area of her career and her life.

Thank you, Commissioners. They are the only questions I have.

COMMISSIONER WHITE: Thank, Ms Graham. Mr Woodroffe, I think you have some questions.

<CROSS-EXAMINATION BY MR WOODROFFE [2.25 pm]

MR WOODROFFE: Commissioners. Minister, I act for the North Australian Aboriginal Justice Agency, which is a legal service provider of Aboriginal children in the Top End, in the Northern Territory, and particularly Aboriginal children who are in detention during the relevant period of this Commission. If I could just begin in respect of your role as the Minister in respect of, as you said, the learnings that you acquired, you were regularly updated with departmental research in relation to youth rehabilitation programs and world’s best practice programs, in models of detention and systems and the like. And particularly – one particular issue which was of relevance that you have spoken to today, about the important dynamic of Indigenous culture. Do you see that detention programs and therapeutic programs for children, Aboriginal children in detention need to have that important dynamic of Aboriginal culture?---Absolutely.

And particularly when dealing with children from remote communities who are in detention about the dynamic of their language and the need for interpreters?---I agree with that, but can I add it’s also about urban Aboriginal youth as well. And with some respects in a historical perspective, maybe even more important.

Alright. Thank you, Commissioners.

COMMISSIONER WHITE: Perhaps just to follow on from that observation about the urban youth, have you got any ideas about that because in many cases, as we understand it, they will be disconnected from their country but they will be coming to live in town centres which create a whole lot of different problems from the

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problems of remoteness. Do you have any thoughts about cultural connectivity for those children who come within the child protection or the juvenile justice – or Corrections system?---Yes, Commissioner. I suppose can I use an example of the previous administration’s appropriation into boot camps. And I am very critical of boot camps and for various reasons. But one reason, if I take home, where I live, I see a young person in crisis that needs support, removed from the family group, the clan group, and taken into an isolated circumstance, processed through a boot camp activity – a therapeutic program, I will agree – and then returned into the environment that can often support offending behaviour, with no engagement with the family. So I have been lobbying for a long time, and I will continue this. I see it’s logical that with juvenile justice we need to have good, strong family connections. And good, strong family connections, when you have lived with Aboriginal people and worked with Aboriginal people are most progressive on country. It is – it is their ethos, it is their mythology, it is their lore. And consequently first language supports that. And why I mention urban youth is, in my time as a Territorian, I have seen more prevalence of youth offending within the urban context. And I think if we can re-engage urban Aboriginal youth with their history and their heritage and their culture with significant elders and adults – and the other thing about this is the community are yearning for this. The community are crying out for this. They know this. As I will outline in the paper that I will present to the Commission, I have families, Aboriginal families that run cattle stations that have – cross-over a number of businesses that they run, that are yearning for the opportunity to deal with some of our Aboriginal youth on country, in industry. And of course the cultural connects are the really important connects. Because at the end of the day that’s what Aboriginal kids will really respect.

COMMISSIONER WHITE: Thank, Minister. Thanks, Mr Woodroffe. Mr O’Connell.

<CROSS-EXAMINATION BY MR O’CONNELL [2.30 pm]

MR O’CONNELL: Minister, the first time you saw - - -

COMMISSIONER WHITE: Perhaps you should just let the Minister know for whom you appear, Mr O’Connell.

MR O’CONNELL: Certainly. Minister, I appear for a number of former detainees. My name is O’Connell. I’m sorry. I’m conscious of time, Commissioners; I’m rushing into things.

Minister, you first saw the footage that we have all been talking about on the Four Corners program?---When did I first see it?

Yes?---I remember it well because I can’t give you the date, but it was the date of the program. I had just driven home from Alpurrurulam. I had been on the road for three

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days in the electorate. I arrived home after that Four Corners program. My wife was visibly distressed, and she organised iView for me to watch that program later that night.

How did you feel when you watched that program?---I was shocked.

As a Minister you were shocked?---Of course, as an Australian, as a Territorian, as a father, as a teacher. As a person who had been involved in that juvenile justice system. Yes. Absolutely.

And what immediate action did you take in relation to that?---I debriefed my wife.

And then immediate political action?---I discussed it with colleagues.

And did anything come of those discussions?---Not my discussions. No. But here we are today with a Commonwealth Royal Commission into that – those incidents.

So apart from this Royal Commission no action was taken by Government in response to that program; is that correct?

COMMISSIONER WHITE: I think you might think about the dates, Mr O’Connell. I don’t think the Minister had any power to do anything.

MR McAVOY: I would object to the question on a different ground, Commissioner. The question has been transposed from one about what this witness did to what the Government did.

COMMISSIONER WHITE: We will try and sort it out.

MR O’CONNELL: I will just go with the government. Do you know if the government took any action?---We are talking about the Territory Government?

Yes?---The Country Liberal Party Government?

Yes.

MS BROWNHILL: Why is this Minister being asked about what the former administration - - -

COMMISSIONER WHITE: He can’t know any more than we can, unless he has some special entrée, which you probably wouldn’t wish to suggest he has.

MR O’CONNELL: No.

Minister, did you ever get to the bottom of why that footage had not been shown to you when it actually happened.


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COMMISSIONER WHITE: Perhaps if you could clarify it for the Minister, the date of the events that are depicted on that Four Corners program.

MS BROWNHILL: And there were a number of different events over different times.

COMMISSIONER WHITE: There were. But I’m assuming which one he is referring to. But if there are more than the dominant one then perhaps he will do so.

MR O’CONNELL: So the relevant dates, Minister, were 20 October 2010, 12 December 2010, and 4 April 2011. Did you get to the bottom of why you were not shown the footage around those dates?---I never saw that footage. We have been through that this morning about the processes that I was involved with, with a flash brief process of a critical incident, a ministerial brief and then follow-up CEO and Commissioner meetings. Did I ever get to the bottom of it when you are asking me now with the resources of government now we are back in government – no. I haven’t. I don’t have carriage of that portfolio. And, no, I haven’t asked to see that footage. No.

But have you made any inquiries in relation to perhaps talking to those who were in a position to provide you with that material at that time?---No. I think immediately – well, it wasn’t immediately, but it was very shortly after that Four Corners program then a Royal Commission was established and then as a member of the new government the Chief Minister has been leading – the leading Minister in terms of our cooperation and support for this process.

Now, in your evidence you said that you visited Don Dale on occasion and you saw the Behavioural Management Unit cells?---Yes.

And you said that you had a desire to learn and understands why such facilities were needed and existed?---Yes.

What did you learn and come to understand?---How such facilities could be misused.

And when you say that, did you come to learn that they had been misused?---I think there is two aspects to the misuse. It was interesting to listen to the professor this morning talking about managing critical incidents in institutions. That Behavioural Management Unit, if I refer to the footage that I saw on Four Corners, was vulnerable in some respects. The juvenile was under extreme stress, had exploited those vulnerabilities and then that led to a series of critical incidents. So there were – there are certainly learnings, absolutely.

You would agree that when you saw those cells they were poorly lit?---When I saw those cells they were vacant, they were clean, the doors were open.

They were - - -?---I never saw a detainee in that Behaviour Management Support Unit, and on all my visits to our – all our correctional facilities, adult or juvenile, I


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never saw any critical incidents or I never saw anybody that was detained in terms of a critical incident.

I think you agreed with Counsel Assisting, though, that you formed a view that they were an inappropriate place to keep a child?---I have said today, and I will stand by my statement, that it is about risk management. And when you are dealing with highly complex critical incidents, then there is a purpose for safe and secure restraint.

Is the – is it fair to say that the reality of being a Minister is that you’re heavily reliant on your departmental employees in relation to assisting your decision making?---Yes, sir.

And also in relation to the implementation of the decisions that you make?---Yes.

And would it be fair to say that the Commissioner of Correctional Services had more power in relation to the day-to-day running of facilities such as Don Dale than the Minister?---That’s always understanding that the separation between the operational capacity and the governance, the political capacity. In terms of more power, I don’t think you can apply that concept to it. But certainly there is a clear distinction and a clear separation in a lot of respects. Yes.

Is it – in your experience, sir, is it often easier to go along with suggestions made by the Commissioner that - - -

MS BROWNHILL: Easier than what? I object to the question.

MR O’CONNELL: Easier than to - - -

COMMISSIONER WHITE: Than not, I presume.

MR O’CONNELL: Easier than to force your own ideas?---I suppose I would like to share this with you: when I was the Minister for Construction I was not an engineer and yet the holier than now Minister will claim building the bridge. I never did and I never will, I was not an engineer, but I was a very good teacher. So in Corrections I had a nationally acknowledged and recognised Correctional Services Commissioner. Of course I accepted advice from that Commissioner. To challenge that advice, yes, I did. And it is a far more difficult row to hoe, but certainly that is part of the job as being the Minister in terms of that oversight of the departmental operations.

Well, you say – the thing is though, and the reason we are here and what you have heard and what you know now, is – would you agree, looking back now, that you couldn’t trust the Commissioner to give you the full story as to what was really happening?---I will answer, sir, in the exact opposite. A big part of my job was to build trust, was to engender trust. I have been a public servant for 30 years.


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It may have been part of your job to build trust, but what I’m getting at now is you know a lot more about what went on in Don Dale when you were Minister than you did when you actually were the Minister; is that correct?---Yes.

So therefore can you not draw a conclusion that you couldn’t trust the people that were working for you to provide you with the full picture?---You must trust. You have to have trust. Otherwise you will have a complete breakdown in the system.

Well, let me put it this way: do you agree now that they did not provide you with the full picture?---I was provided with the critical incidents in a written form, in a meeting format - - -

The question is do you agree now that you were not provided with the full picture?---In terms of not being provided a CCTV footage?

In terms of being provided with a whole lot of things that were going on in Don Dale.

COMMISSIONER WHITE: You might have to be a bit more specific.

MR O’CONNELL: Well, in terms of - - -

COMMISSIONER WHITE: After all, Mr O’Connell, as I understand it, a great many people knew about the use of spit hoods. After all, it was debated – probably wasn’t debated – it was passed in the Parliament so it was on the public record. It was only when presented with visual representation that people became alarmed. So it wasn’t a secret. It wasn’t something that was – as we understand it – that was being kept from the people of the Northern Territory or the Government. Would you want to ask the Minister a different – something different prevailed?

MR O’CONNELL: I will consider that, Commissioner. I will move on to another area.

In the letter that was shown before written by CAALAS, and your response, would you agree that in giving that response that you gave you gave far more weight to your ministerial than you did to the concerns expressed by CAALAS?---I tried to work a balance. It’s the old adage: there is two sides to every story. I honestly tried to work a balance throughout my work as a Minister, engendering the respect and the trust of the department to deliver better outcomes, and also the authority of a Minister and my responsibilities.

Were you – you have a strong affinity with Aboriginal people and a long history in it working with them. Do you understand that Aboriginal people have a very strong feeling that their side of the story is not being heard?---I am very cognisant of the Aboriginal perspective of traditional lore and traditional justice. I was very privileged to have lots of opportunities - - -


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That’s not what I’m asking you. What I’m asking you is you – are you cognisant of the fact that Aboriginal people generally, in relation to government decisions, feel that their side of the story is not being heard. And I’m using - - -

MS BROWNHILL: What’s the relevance of the question? I object.

COMMISSIONER WHITE: Just make it a bit more relevance to the terms of reference, if you would, Mr O’Connell.

MR O’CONNELL: Well, CAALAS wrote you this letter expressing a number of concerns about youth in detention. You then get – you have that letter and you have a ministerial. And the response you gave is heavily favoured on the side of the ministerial. And you said, well, there are two - - -

MS BROWNHILL: Can my friend clarify what response is he talking about. Is he talking about evidence given in the courtroom today or is he talking about in the letter.

COMMISSIONER WHITE: Ms Brownhill, Mr O’Connell is talking about the ministerial response to the CAALAS letter which we have just looked at this morning. He talked about the ministerial response. Thank you.

MR O’CONNELL: Yes. Thank you, Commissioner.

And you said, well, there are two sides to every story. And my response to that is, well, do you accept that there are – generally speaking, Aboriginal people feel that their side of the story is not being heard?---I don’t like to use the word “generally speaking”.

You use whatever word you like?---But I am – my life and my times, I am very cognisant of, yes, the concerns Aboriginal people have going back to the colonial history of the country and contact. And there is a lot of sorrow, a lot of grief, and there is a lot of healing that needs to be done.

Do you accept that in relation to the treatment of Aboriginal youth who come into contact with the criminal justice system, that the Aboriginal community have a lot of fantastic ideas as to how to deal with that?---Yes.

And you accept that there is an extraordinarily high duty of care on the government to make sure that those children are well looked after?---Yes.

What do you think about the idea of an independent inspector of custodial services for children, someone who will ensure that the Minister does get the complete picture and does represent the concerns and ideas of Aboriginal youth, their family and their community?---I agree with that. And I think we went some way towards that with the children’s Commissioner in the Northern Territory.


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Some way towards, but would you agree that there needs to be something with more power and more focus, particularly on the issue of Aboriginal youth in detention?---I would be very interested to see the recommendations from this Royal Commission.

Would you welcome a recommendation along those lines?---As a member of the Northern Territory Government we welcome all the recommendations that will come from the Royal Commission and look forward to the opportunity of working with the Commonwealth in resolution.

And in addition to that, what do you think about the – a possible recommendation that the responsibility for youth in detention is taken away from Correctional Services portfolio and given, for example, to Families?---It already has.

Sorry. Okay. Good. Just a couple more questions. You said that there has been a lot of funding recently announced in relation to things like Territory Families and various programs?---Yes.

How much – are you aware of how much is spent each year on the running of the Holtze Prison?---No. But I have access to find that information out.

And - - -

COMMISSIONER WHITE: It’s probably publicly available information, isn’t it Mr O’Connell?

MR O’CONNELL: It probably is.

When you were the Minister, can you recall roughly how many Aboriginal prisoners were in the prison - - -

COMMISSIONER WHITE: Juvenile or adults or the lot?

MR O’CONNELL: Both. Both. Adults and juvenile?---In terms of numbers, well, they fluctuate. But I can remember – I will share a mantra that lives with me for rest of my life. Which took over the job as Minister for Corrections in the Northern Territory, 85 per cent of the adult prisoner population in the Northern Territory are Aboriginal and 60 per cent were incarcerated for low to middle level offences around alcohol, motor traffic, and domestic violence.

And can you give a number? For example, was there 600, 700?---Numbers spiked in the Darwin correctional centre close to 800 in my time as the Minister, and numbers spiked in the Alice Springs correctional centre in excess of 600 on occasion. And also alarmingly there was a spike in the level of female – Aboriginal female inmates.

And of that 1400, how – what percentage would you say were for alcohol-related offences?---I think you could probably comfortably combine motor traffic, domestic violence, and alcohol, as alcohol, in my opinion, is the underlying cause of most of


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the inappropriate offending behaviour within our society, so we had an approximate figure of around 60 per cent.

So 1400 prisoners, 60 per cent alcohol-related. How many available rehabilitation spaces did you have during that time?---I can’t recollect that number.

Was it –

COMMISSIONER WHITE: He can’t recollect. That’s the answer, Mr O’Connell. If you have got some figures that - - -

MR O’CONNELL: Well, if I said to you around 12 beds - - -

COMMISSIONER WHITE: Is that Darwin and Alice Springs?

MR O’CONNELL: That’s Darwin.

MR McAVOY: Perhaps it should be put to the witness as to whether it’s adult and juvenile or just juvenile or - - -

COMMISSIONER WHITE: Yes. I had assumed from the earlier question from me that we are talking generically across the - - -

MR O’CONNELL: Adult and juvenile.


MR O’CONNELL: If I suggested around a figure of around 12?---No. I don’t agree with that figure because I can remember working closely with Capu here in Alice Springs. We extended their capacity in terms of alcohol rehabilitation beds. There were various other agencies. Vendale in Katherine: we actually had prisoners construct – increase the accommodation out there for alcohol rehabilitation beds. I’m not sure about Darwin, but, yes, no, there was a lot more than 12.

Okay. I think you can see where I’m heading with this, though. There is a huge disparity between the numbers of people going into prison for alcohol-related offences and the available rehabilitation that they could access?---And there still is, sir.

And still is. How does this government propose to flip that?---In terms of our policy, putting children first, we are a government that has taken a bold move around acknowledging and recognising the need for generational change. If you want to look at one of the specific portfolio areas I’m responsible for in terms of housing, we now have a 10-year plan and we are hearing positive signs at official level from the Commonwealth around matching our significant investment over the next 10 years to improve Aboriginal housing throughout the Northern Territory. So we are a government that is looking longer term, beyond the political cycle. We are looking


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at a focus on our children and I think if you – if you consider that the generational change concept is the reality of real change for the Northern Territory, then we have started on that significant policy movement.

My – one of my learned friends asked you about justice reinvestment?---Yes.

Do you understand that the basic or the fundamental principle underlying justice reinvestment is you have a look at how much you’re spending on prisons, police, punitive measures, courts. And then you have a look at how much you’re spending on prevention and therapeutic measures. And you look at the two and you move your expenditure so that it is favouring the preventive and the therapeutic. It’s not just a matter of putting some more money into preventative and therapeutic programs. Do you understand that?---Yes.

And is that something that this government is looking into?---That’s something that I will be a strong lobbyist for and I think, once again, if you look at our policies around the child, Territory children and families, around those important parameters supporting improved outcomes, focused on the closing the gap targets around education and health and house – there will always be competing priorities and there will always be the pressure for community safety, we can’t deny that. But when we generalise of a 60 per cent of a vulnerable cohort that could be diverted from our custodial system, then that’s something that the government is focused on. Yes.

And, final area, Minister, is foetal alcohol spectrum disorder. Is this something that this government is aware of and is it something that it is taking action in relation to?---I don’t have the time to talk about this because I will start with my mother in the early 60s who first started educating me about foetal alcohol syndrome. And then my early years - - -

COMMISSIONER WHITE: Perhaps you could just sort of move on a bit, because we may have some other questions?---As part of the previous Northern Territory Opposition we lobbied strongly in this area. I’m a very strong advocate. And the previous government, I always acknowledge – we give credit where credit was due – set up the inquiry into foetal alcohol spectrum disorder. That report was received; there has been very little work on that, those recommendations from the previous government. Our government has recommenced that work and particularly with the Minister for Territory Families. And I can assure you, sir, I am one that has brought that and will remain the strong lobbyist for that front and centre of policy in the Cabinet table.

Just out of interest, Minister, when was that report tabled, the - - -?---I was on that committee, but from memory I’m thinking it must have been around 2015, I think. Was it? I’m only guessing. I better not put that down on the public record, but - - -

COMMISSIONER WHITE: It can easily be checked, Minister. That’s your final – thank you.


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MR O’CONNELL: Yes.

COMMISSIONER WHITE: Thank you, Mr O’Connell. Ms Goodhand will ask you some questions now.

<CROSS-EXAMINATION BY MS GOODHAND [2.55 pm]

MS GOODHAND: Minister, I act for Dylan Voller. And you’re aware from your statement – I think you referred to them. You’re aware of an incident that involved my client in 2010 at the Don Dale detention?---Via the flash brief process and the ministerial brief at that time, yes.

And there was also another incident involving my client which you have referred to in your statement in – on 7 April 2011. You were aware of that incident as well?---I think that’s documented also, yes, through the same process.

Now, in terms of those flash briefs, if the flash brief in respect of the first incident for October was – is that your annexures GM4; is that – that’s the flash brief you’re referring to?

COMMISSIONER WHITE: Paragraph 21 in your statement, Minister?---So in terms of GM4, I have on 1 November 2010.

MS GOODHAND: That’s correct?---Alleged assault staff on detainee at Don Dale centre.

So that familiar brief is dated 1 November 2010. Is it fair to say that you would have read that flash brief shortly after that time?---Yes.

And would that also be the case with the flash brief for the second incident I have referred to, which is at annexure GM5, or paragraph 22 in your statement?---I would expect that I would have seen that shortly after its publication, although, as the previous Minister, I also represent the largest electorate in the Northern Territory and travelled extensively. So if I didn’t see it immediately it would have come to my attention when I got back to town.

And would that have been within a week? Are you able to say that?---I can’t recollect that specific time. I just wanted to make you aware: my life – it covers a lot of country.

And if you – if I can have on the screen just in relation to the first flash brief, GM4. If I can direct your attention to the second paragraph under the heading Background?---Yes.

.ROYAL COMMISSION 17.3.17 P-1383 G.F. McCARTHY XXN©Commonwealth of Australia MS GOODHAND

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Starting with the words, “On 27 October 2010”, if you could just read that paragraph to yourself?---Read it?

To yourself. Yes?---Yes. I have read that paragraph.

So you would agree, wouldn’t you, that at least after you read the flash brief you were aware of the existence of the CCTV footage in respect of the incident on 20 October 2010?---That would have made me aware of that via flash brief, yes.

But you can say that notwithstanding that you still didn’t ask to see the CCTV footage?---No. I didn’t see the CCTV footage.

And you would agree that the allegations raised in this flash brief, if they were true, or if they are correct, are very serious allegations?---Yes.

And that’s because there has been a flash brief created about that?---That’s because there has been a critical incident.

But flash briefs aren’t created about any type of incident, are they?---No.

And it’s also serious, I suggest, because in circumstances where, as it’s referred to in this document, the – my client did not wish to formalise his complaint, notwithstanding that, your Superintendent contacted police and asked them to investigate the matter anyway?---That’s what was reported to me, yes.

And even more serious, I suggest, is because it involved an allegation of an alleged assault on a child by a Youth Justice Officer; you would agree with that?---That’s what – yes. It would be the circumstance. Yes.

So being aware of the existence of the CCTV footage, and the fact that it involves a serious allegation in relation to an alleged assault on a child, why didn’t you request to see the CCTV footage?---I have no answer for that. I didn’t request it and I can understand your line of questioning and I am at fault.

And if you assume that your – the then-manager at Don Dale detention centre did not access the CCTV footage until eight days after the complaint of the alleged assault, would you agree that that is unsatisfactory?---Well, I would only qualify that by saying that they were conducting an investigation.

But in a circumstance where there is an alleged assault by a Youth Justice Officer on a child, would you agree that it would be important to try and access the CCTV footage as soon as possible after the incident?---Yes.

Now – and you might not be able to say this – but were you aware at the time that you were provided with the flash brief that the – my client had made a complaint to the Ombudsman about this incident on 30 October 2010?---I can’t recollect that. No.


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Okay. In your statement you refer to becoming aware of the Children’s Commissioner’s investigation, which commenced in 2011, and was ultimately finalised in 2015, which was a time that you weren’t the Minister. Have you read that report?---No.

Are you aware of the nature of the allegations that the Children’s Commissioner was investigating in that report?---Through briefings that were provided to me, yes.

And that’s the extent of your knowledge?---Yes.

So at the time the investigation commenced in 2011, when you were still the Minister for Corrections, were you ever shown any image or any footage in relation to those two incidents that I have referred to you before?---No.

Now, just in relation to some of the allegations that were dealt with in that report. You would agree, wouldn’t you, as a general principle, segregation of a youth detainee is a very serious matter?---Segregation?

Yes?---What do you mean by segregation?

So over and above the youth detainee being in detention, segregation being removed and isolated?---Yes. If – and for the purpose of? Are we speaking about a specific incident?

So not at risk; I’m talking just about isolation?---Isolation: I came to terms with the fact that it was used as an operational procedure to generally deal with high risk behaviours.

But you would agree it’s a serious matter to isolate a youth detainee?---In my experience as a teacher, it doesn’t necessarily have to be a serious procedure. It’s what I call the time-out strategy or - - -

Well, what I’m suggesting to you is, in fact, it is a very serious matter to isolate a youth detainee. Do you agree or disagree?---Yes. Alright. I will agree that it is a serious matter, yes, that that procedure would be conducted, yes.

And, in fact, it’s so serious that the Youth Justices Act has a provision that deals with the length of time that a child can be isolated for?---Sure.

Now, if there were instances of a child being kept in isolation longer than, say, they were permitted under that Act, is that a matter that you – that you believe should have been brought to your attention by your staff?---I would expect that would have been brought to my attention. Yes.

And if you accept from me that that was an allegation made and investigated in that Children’s Commissioner’s report, but it wasn’t – but you still say that wasn’t brought to your attention at that time; is that right?---No. It wasn’t brought to my


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attention and I’m thinking as that report – the investigation progressed into that report. The Children’s Commissioner was mainly dealing with the Minister for Children and Families at the time. But, yes, I didn’t have any direct involvement in his work in compiling that report at that time.

But you certainly agree with me, don’t you, that if that was happening at the detention centres in the Northern Territory, that you should have been told about that by your staff?---Sure. Yes.

And then another allegation that was looked at in that investigation related to the denial of water to detainees. You would agree with me, wouldn’t you, that the denying a child in detention water is a serious matter?---Yes.

And if that in fact was occurring at the time that you were the Minister for Corrections, that you would expect to be told about that?---Yes.

And you weren’t told about that while you were the Minister?---I cannot recollect any incidences where I was informed that children were being denied water. No.

And in relation to what I call stripping of detainees when being placed at risk, what do you say about the forceful removal of underwear when applying the at-risk procedure. Do you consider that a serious matter?---I think it’s – I refer to that as a critical incident. It is a very serious matter in terms of the nature of that incident. If the person is displaying high risk behaviours, self-harm, then a process is initiated. It is a very complex business. It is fraught with - - -

And if – sorry?---Fraught with danger.

And if the – if you assume for a moment for the purpose of my question that at the time there was a policy that said when you placed a child at risk not to remove their underwear, and, in fact, the practice of removing underwear was occurring, that would be a serious matter, wouldn’t it?---Yes.

And would you expect that you would be advised of that from your staff?---Yes.

And to your recollection were you ever advised about that kind of practice while you were the Minister?---I have no recollection of that. No.

Now, you were asked some questions earlier today about an incident involving the same Youth Justice Officer that relates to the incident – I will give you some background just so you understand. So the incident involving my client on 20 October 2010 involved a Youth Justice Officer; without saying that person’s name you are aware of who I’m talking about?---No. Yes. I am aware now, and I have seen that name in the briefs. Yes.

And so the incident you were asked some questions about that didn’t relate to my client specifically, but occurred in April 2010, so the same year as the October 2010


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incident, involved the same Youth Justice Officer. Are you aware of that?---No. I can’t recollect that.

Do you remember the incident that Senior Counsel Assisting took you to, the April 2010 incident?---So I think – should I refer back to some documents then, to make this clear? I want to - - -

Yes. Sure. Do you remember the one that you were asked about earlier this morning?---Yes. And it’s the same officer?

That’s right?---Right.

So, you have given some evidence earlier tie today that you were at the time aware of the incident in 2010 involving that officer?---Sure. Yes.

Were you aware that in relation to that incident that the PSU were never able to complete an investigation in relation to the matter?---The PSU? Could you - - -

Professional Standards Unit?---No. I don’t – I’m not aware of that.

And, in fact, that that investigation could not be completed because the officer failed to attend an interview with them on three occasions?---I was not aware of that.

And now that I have told you that, would you consider that that’s a serious matter?---Yes.

Particularly in light of the allegations made in relation to the April 2010 incident?---Certainly.

Were you aware that notwithstanding that, that in July that officer was given a further contract for three months. Contract of employment?---No.

Does that trouble you, that he was given a contract of employment, given the information I have just given you?---That concerns me. Yes.

Now, in relation to the incident involving my client on 20 October 2010, were you aware that the PSU never followed up an investigation in relation to that allegation?---No.

Were you aware that that same Youth Justice Officer was never formally terminated?---No. I was aware via this process that there was one Youth Justice Officer terminated, but I’m not aware of the one that you’re talking about.

So you would agree with me, wouldn’t you, that by taking no action by way of a PSU investigation or otherwise, that would theoretically mean that that Youth Justice Officer could continue to work with children in the future?---That would seem the case. Yes.


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Does that concern you?---Yes.

I have no further questions. Thank you, Commissioners.

COMMISSIONER WHITE: Thank you, Ms Goodhand.

MS BROWNHILL: Mr McAvoy is looking at me, I’m not sure why. I don’t have any questions for the Minister.

COMMISSIONER WHITE: You are getting unduly sensitive, Ms Brownhill.

MR McAVOY: Well, that seems as though the Minister’s evidence might be at an end, Commissioner. I don’t have any re-examination.

COMMISSIONER WHITE: Right. Thank you.

COMMISSIONER GOODA: Minister, at the beginning of your testimony or your evidence you talked about working with – in your early days setting up those five schools with Aboriginal communities. You talked about it being an exciting time because land rights had – people had just got their first allocation of land rights. Given that, do you – your experience then, do you think it would be a worthwhile exercise to engage more with Aboriginal communities as we work through the recommendations for this Royal Commission?---Yes, Commissioner. I certainly support that and encourage the Commission to look at that.

And also to go further and from the government’s point of view that would be a way of making sure the best services are delivered, particularly in your new portfolio of, say, housing?---Yes, Commissioner. Absolutely. Can I encourage you to two areas specifically. The Walparri in the western Tamami has some very, very interesting work that they have done on traditional justice systems, in terms of really merging with - - -

Is that the Lajamanu?---Yes. Yes. And if I can encourage you into the eastern gulf country of the northern Barclay where there are some very, very inspiring Aboriginal families that work in industry, who have some great ideas, which I will present to you in a written form, around linking our youth with industry programs and on-country programs.

COMMISSIONER WHITE: Could I just build on that a little and go in a slightly different direction. There seems to be a generally accepted view that localised decision making is the best decision making. Do you have any thoughts about how devolution could operate and be applied in the Northern Territory?---Certainly. My challenge at the moment as the Minister in terms of housing and community government, local government, we are also looking at how we can devolve to that local decision making, reenergising our schools, our health and the justice system. So our policy position is local decision making. One of the underlying parameters of that is using Aboriginal interpreter – the Aboriginal interpreter service to make sure


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we engage comprehensively in first language and of course then building the capacity around local decision-making where communities desire to take control back of their lives.

And does your government, at this stage, is it in a position to develop any model of local decision making or is it thought that they will be different models?---Our work at the moment now is about trying to design an Aboriginal housing model. So a community housing model that will be owned, operated and run by Aboriginal interests. We are focused on considerably enhancing the local authority level of governance within local government and the Chief Minister has been very clear, if we can’t achieve that through good negotiation we are prepared to legislate for that for empowering the local authorities in Aboriginal communities. With the schools, it’s about the community-led school model which essentially starts with re-engaging the Aboriginal families in the school council concept, but leading to completely independent schools where there will be some great opportunity to look at curriculum initiatives and attendance initiatives and so forth.

Now, that is sort of the more remote communities. What about the major population centres of Darwin, Palmerston, Alice Springs, for example, perhaps Tennant Creek and Katherine. Different models for them or some variance?---Those existing models will be so important to basically re-engage our community. It’s – we have seen progressively – I talk about the good old days. I talk about the 80s and the early 90s in terms of some of the successes we were having. From then we saw basically Aboriginal people starting to walk away from engagement. We started to see a drop off in numbers. If you look at some historical events, the intervention into the Northern Territory, followed by a Labor Government’s major reform into local government, the Commonwealth SIHIP program with the first of the 10 year, which is just coming to a conclusion, round of indigenous housing. We saw Aboriginal people progressively disengaging from the system, feeling more disempowered: a lot of hurt, a lot of shame, real impacts on their positive wellbeing and this government now, Michael Gunner, the Labor government has come back in after four years in opposition where we did a lot of work, we did a lot of miles and research into this and we have a very clear focus now on trying to re-engage. Within the urban systems there are lots of opportunities to re-engage. But I think we should also be focusing on any innovation, any alternatives that we can use.

Thank you, Minister.

MR McAVOY: Nothing arising, Commissioners.

COMMISSIONER WHITE: Now, I understand that there might be some request to tender some further documents? The balance of the tender bundle, Mr McAvoy?

MR McAVOY: Commissioners, I have had some brief discussion with my learned friends from the Northern Territory government. There are some questions that I’m – that they have got which I’m not able to answer and I am - - -


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COMMISSIONER WHITE: So do it on Monday in Darwin?

MR McAVOY: I think that would be best, Commissioner, rather than take up more time this afternoon with argument, perhaps, that is unnecessary.

COMMISSIONER WHITE: Right. I always like to eliminate unnecessary if I can. Alright then. Thanks, Mr McAvoy. Now, I understand that we are going to start at 9.30. We have a lot of witnesses to get through in Darwin in our weeks there. So that’s notice to everybody that the Commission will commence at 9.30 in the Supreme Court in court 11 in Darwin on Monday. Is that – that’s alright for you, Ms Brownhill?

MS BROWNHILL: Absolutely. Thank you.

COMMISSIONER WHITE: Thank you. Nothing more?

MR McAVOY: Nothing more, Commissioner.

COMMISSIONER WHITE: No applications late on a Friday? No. Alright. It just remains for us to thank you very much, Minister, for giving up so much of your time and giving us the benefit of your thoughts for the future, for the Territory. We will look forward with great anticipation to receiving your issues paper?---Thank you, Commissioner. Thank you, Commissioner.

COMMISSIONER GOODA: Thank you.

<THE WITNESS WITHDREW [3.19 pm]

COMMISSIONER WHITE: Right. Adjourn until 9.30 in Darwin. Thank you.

MATTER ADJOURNED at 3.20 pm UNTIL MONDAY, 20 MARCH 2017


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Index of Witness Events

JOHN RYNNE, SWORN P-1304EXAMINATION-IN-CHIEF BY MR McAVOY P-1304CROSS-EXAMINATION BY MR O’CONNELL P-1314CROSS-EXAMINATION BY MS GOODHAND P-1319CROSS-EXAMINATION BY MR TUSCANO P-1320

THE WITNESS WITHDREW P-1321

GERALD FRANCIS McCARTHY, SWORN P-1321EXAMINATION-IN-CHIEF BY MR McAVOY P-1321CROSS-EXAMINATION BY MS GRAHAM P-1368CROSS-EXAMINATION BY MR WOODROFFE P-1373CROSS-EXAMINATION BY MR O’CONNELL P-1374CROSS-EXAMINATION BY MS GOODHAND P-1383

THE WITNESS WITHDREW P-1390

Index of Exhibits and MFIs

EXHIBIT #94 STATEMENT OF PROFESSOR RYNNE P-1305

EXHIBIT #95 STATEMENT OF GERALD FRANCIS MCCARTHY DATED 14/03/2017

P-1322

EXHIBIT #96 SUPPLEMENTARY TENDER BUNDLE DATED 16 MARCH 2017 (RELATING TO GERALD FRANCIS MCCARTHY ONLY)

P-1368

.ROYAL COMMISSION 17.3.17 P-1391©Commonwealth of Australia

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