Peter O’Brien interviewed about Dylan Voller on 60 Minutes

Last night, Dylan Voller was interviewed on Channel Nine’s 60 Minutes program. He spoke bravely about his past, the psychological impact of his detention and his hopes for the future.

Peter O’Brien, Dylan Voller’s lawyer, also appeared on the program. He spoke about Dylan and the toxic environment of the youth detention centre where he was held, saying it “wasn’t the type of system that was going to make a young boy a good man”.

As a firm, we continue to be proud of Dylan’s courage. Going forward, we also hope that his story can help make a positive change to our criminal justice system.

peter o'brien being interviewed by 60 minutes

Image: 60 Minutes/9NEWS.

In case you missed it:

See Dylan’s powerful tell-all story on 60 Minutes here (login required)

Or on 9NEWS:

And read the Sydney Morning Herald article:

Asylum seekers on Manus Island: the new High Court case & why it’s important

In a case that could change immigration policy as we know it and provide fresh hope to refugees trapped in uncertainty, the High Court of Australia is hearing a new challenge to the Australian government’s detention of asylum seekers on Manus Island in Papua New Guinea.barbed wire immigration detention

O’Brien Solicitors‘ client, the plaintiff, is a detainee who fears for his life after becoming an eyewitness to his friend’s murder. He challenges the lawfulness of his detention after the landmark case of Namah v Pato. There, the Supreme Court of Papua New Guinea ruled the regional processing centre at Manus Island was unlawful. As a result, the Australian government’s position that they are perfectly within their power to keep the Manus Island centre going is shaky at best. It is on these grounds that the plaintiff seeks a declaration that he was unlawfully detained from the beginning, and a writ of Habeas Corpus to extract him from the alleged unlawful detention.

The plaintiff also argues that the continuation of Australia’s policy in Papua New Guinea is a clear violation of what is termed ‘international comity’. This is the principle that different countries will recognise each other’s laws and judgments.

Even if the challenge is successful, perhaps the most worrying fact is that it’s unclear exactly what may happen next. Not leaving anything to speculation, Australian Immigration Minister Peter Dutton resolved on the day of the Namah ruling that [n]o one who attempts to travel to Australia illegally by boat will settle in Australia‘. It is more likely than not that, if the Manus Island centre is closed, most refugees would simply be shifted to other locations, such as to Nauru.

We must not lose sight of the bigger picture. This case represents an attempt to ensure that the Australian government provides accountability, procedural fairness and respect for the living conditions and human rights of those seeking asylum. Let us hope that compassion to the world’s most vulnerable peoples can be shown before Australia’s position on the international stage is damaged for generations to come.

For more news on this case as it breaks, stay subscribed to O’Brien Solicitors on Twitter (@OBrienSolicitor) and Facebook

Inside the Numbers: the Child Abuse Royal Commission

The mind has difficulty processing numbers that are too large. Earlier this week the Royal Commission heard that members of the Catholic Church allegedly abused 4,444 children between 1980 and 2015. The abuse of so many children is, as Dan Box of The Australian said, “criminality on a scale previously unimagined.” With numbers that large, you have to constantly remind yourself that each of those four-and-a-half thousand digits is a little child.

Image: Billy Cooper/ABC News

Image: Billy Cooper/ABC News

According to the data, the typical victim of abuse was a young boy, age 11. Gail Furness called the accounts of the abuse “depressingly similar”: typically, the boy would have had great trust for the clergy, likely inherited from his parents. That trust was violated in the most grotesque and criminal of ways. Perhaps the boy told his parents, but probably he didn’t – the Commission heard that the average time between the alleged abuse and the survivor coming forward is 33 years. In the intervening years, the child would have grown up ashamed and mistrustful, unable to form meaningful relationships, unsure how to act around children.

And, as Francis Sullivan (of the church’s Truth, Justice and Healing Council) reminds us, “let’s not forget the ripples of abuse”. For each child alleging abuse – each of the 4,444 – there are family members, friends and partners who have had to share in the darkness with the survivor. Some victims didn’t survive; they turned to alcohol and drugs – some couldn’t go on living.

Furness goes on to detail further similarities: “Allegations were not investigated. Priests and religious were moved. The parishes or communities to which they were moved knew nothing of their past. Documents were not kept or they were destroyed. Secrecy prevailed.”

The Royal Commission into Institutional Responses to Child Sexual Abuse has, time and again, proved its worth. This latest evidence is another testament to the value of this Commission. The scope and complexity of institutionalised abuse (such as that perpetrated by the Catholic church) is its own best cover; only a sustained focus will be able to appreciate the extent of the abuse. The Royal Commission has provided this focus, and its work ­– and the work of Commissioner Peter McClellan – should be praised in the highest terms. As citizens, we must match the effort of the Commission, and do our best to comprehend the size of this abuse. Understanding such large numbers will be difficult – on the brain and on the heart – but for the sake of each of the 4,444, we must not look away.

Survivors can contact the Survivors & Mates Support Network on 1800 472 676 or

Lifeline: 13 11 14

Dylan Voller gives evidence before the NT Royal Commission

As a firm, we are extremely proud of Dylan Voller for his appearance before the NT Royal Commission. Dylan gave evidence about truly inhumane treatment he has suffered, yet remained articulate and courageous throughout. We hope that Dylan’s bravery in telling his story will lead to real change in the criminal justice system.

Indigenous crime is down, imprisonment up. Wait, what?

Indigenous crime rates are down, and down by a lot. BOCSAR has recently released statistics on the period from 2001 to 2015, which show that arrests of Indigenous people for violent offences have dropped by 37 per cent, and for property crime by 33 per cent. Amongst young Indigenous males, arrests for violent crimes have been more than cut in half: down by 58 per cent for those aged 20-24.

Photo credit: SBS 'Prison Songs'/SMH

These are incredible statistics. They indicate an approximate one-third drop in Indigenous crime rates, and should be cause for celebration. But – and when you’re talking about Indigenous criminal justice there always seems to be a but – BOCSAR released these statistics with another, less inspiring, set of numbers.

In the same period that Indigenous arrests fell, the number of Indigenous Australians in incarceration more than doubled. As an age-standardised percentage, the rate of Indigenous imprisonment rose by 40 per cent between 2001 and 2015. This. Does. Not. Seem. Right.

Basic intuition tells you that the less involvement a group has with crime and police, the fewer members of that group will be imprisoned. In this case, it seems like the exact opposite is happening. So what is going on here?

The short answer is political meddling. BOCSAR explains that the growth in Indigenous incarceration is due to three intersecting causes. The first is an increase in the proportion of Indigenous people who are charged with a crime actually being convicted for that crime. The largest growth in convictions occurred in the area of justice procedure offences (for example, breach of a community-based order or breach of a violence order). The number of convictions for justice procedure offences has grown by 1,746 over that 15-year period. In the words of BOCSAR’s report, “[t]he abrupt nature of the change in this category of offence between 2009 and 2010 suggests a change in policy rather than a change in offending.”

Aboriginal flag with justice now sign

Coinciding with this increase in convictions is an increase in the proportion of those convictions that lead to a prison sentence. This growth is sharpest in the offence categories of justice procedure offences and violent offences, but the new inclination towards incarceration is found across the board. BOCSAR writes that “14 out of the 16 offence categories show an increase in the proportion of convicted Indigenous offenders receiving a prison sentence, suggesting that harsher sentencing practice might be a significant contributor to the growth in the Indigenous imprisonment rate.”

The third key factor driving up Indigenous imprisonment rates is the growth in remand (when an accused is refused bail). The number of Indigenous prisoners on remand grew by 238 per cent between 2001 and 2015. We’ve written about the iniquity of an overzealous bail system before: it takes individuals away from their community for no good reason (bail is, on principle, unfair: it locks up an individual prior to them being found guilty for a crime). We can now add another reason to oppose harsher bail law: it demonstrably contributes to the problem of systemic Indigenous disadvantage.

This, in the end, is the key point: while the non-Indigenous prison population has also risen over the same period, any increase in punitiveness tends to have a disproportionate effect on our most vulnerable groups. Apparently this is still the case even when offending is falling within those groups. These statistics show that the harsher punishments which are dished out to Indigenous people who come into contact with the criminal justice system dwarf the decrease in Indigenous offending. The statistical anomaly is not an anomaly at all, but just good old, old-fashioned, built-in disadvantage.

NTRC Day One: Setting the Stage

The first substantive day of hearings of the Royal Commission into the Protection and Detention of Children introduced a few of the larger themes that the commission will be dealing with. Those themes are:

The “Inquiry Mentality”

A key concern amongst Indigenous leaders is that the current royal commission will merely be another talkfest (the comparison that is frequently drawn is with the Royal Commission into Aboriginal Deaths in Custody, the recommendations of which remain largely unimplemented). Peter Callaghan SC, counsel assisting the commission, tackled this concern head-on in his morning address:

“do we need to confront some sort of inquiry mentality in which investigations are allowed as a substitution for action and reporting is accepted as a replacement for results? The bare fact that there has been so much said and so much written over such a long time is suggestive of a persistent failure that should not be allowed to endure.”

We have previously written that, when it comes to recommendations, there will always be a gap between what is best and what is achievable – and that Mick Gooda and Margaret White know this. Gooda has said that he “shares the community’s fatigue with reports that achieve no change.” Setting up the Royal Commission into the Protection and Detention of Children was the threshold step; the ultimate test for this royal commission will be in the days and weeks following the release of the recommendations.

Photo credit: Helen Davidson for The Guardian Australia

Photo credit: Helen Davidson for The Guardian Australia

An Indigenous Inquiry

While the inquiry is not explicitly about Indigenous rights, the fact that 95% of juveniles detained in the Northern Territory are Aboriginal means that this commission will necessarily be an inquiry into systemic disadvantage within the Northern Territory. Again, Callaghan cut straight to the point when he said that while 30% of the NT population was Indigenous, almost all of the children in detention and 86% of children subject to care an protection orders in 2014/15 were Indigenous. In fact, Aboriginal people are over-represented in almost all of the metrics you don’t want to be over-represented in, including suicide and serious illness. Areas of Indigenous disadvantage overlap and compound each other. These “medico-social issues” will be examined by the royal commission, as they should be.

Human Rights and Children’s Rights 

Most of today’s time were taken up by a marathon testimony from Megan Mitchell, the Children’s Commissioner at the Australian Human Rights Commission. Early on in her evidence Mitchell made the statement that “human rights are not rocket science, they’re pretty basic things that we would all understand that everybody needs to do well in life.” When it comes to the human rights of children in particular, one has to factor in another basic idea: “Children, by their nature, are developmentally vulnerable.”

As Mitchell stated, children are already at a relative power disadvantage compared to adults, so when children are placed in institutions that compound the hierarchies of control those kids are at much greater risk of voicelessness and abuse. Exacerbating this risk is the fact that when you incarcerate children you take them away from “their family and their natural advocates.”

Moving from the abstract to the practical, Mitchell made several concrete recommendations for ensuring the rights of children in detention centres. They were:

  • “Strong and robust oversight” of prison systems and guards, including the ability to make complaints. The right to make complaints must be well understood by child inmates.
  • “Well-trained and well-recruited staff who understand human rights” (the original Four Corners program revealed that some of the guards at Don Dale were former cage-fighters who had had as little as four days training before being placed in charge of children).
  • “Access to family on a regular basis” (for Indigenous youth, this right should also be extended to include continued access to one’s culture)
  • Access to independent legal advice and external legal remedies
  • Access to appropriate education

Justice Reinvestment

O’Brien Solicitors’ principal, Peter O’Brien, asked Megan Mitchell, If we tackled children’s problems when they were younger, could juvenile detention centres be obsolete?

This is essentially a question about justice reinvestment: the diversion of money away from prison and into communities, aimed at stopping crime before it happens (for a quick explainer, check out this NAAJA video). Justice reinvestment was the focus of a recent Four Corners program and is objectively a good idea – and as this royal commission wears on, more and more people will come to realise just how important an idea it is.

Mitchell’s reply was “Probably. Most of the risk factors that predispose children to a pathway into the justice system are fairly obvious from a young age. [If we could deal with those factors at a young age] I think we would be a much better position to ensure that children don’t end up in the juvenile justice system in the first place.”

Earlier in her evidence she also made the remark that “being in a jail is not good for kids. At the end of the day it mostly entrenches criminal identities and associations and, for mine, that’s not a good investment in kids.”

Practical Difficulties

The evidence of the second witness, Carolyn Richards (the former Northern Territory Ombudsman), was unfortunately interrupted by technical difficulties. While I don’t want to say that a dodgy Skype connection is proof of an impaired royal commission, these kinds of technical delays don’t do anything to alleviate concerns about the royal commission’s tight timeline. The royal commission has only 25 public sitting days scheduled in before it has to produced its report in May next year. At 25 days, this royal commission has been called the “speediest in history”.

Many groups have already raised concerns about short timeframe of the royal commission, including the commissioners themselves. There have been tentative signs that the commission may request an extension of time, and George Brandis today said that such a request would be looked at “sympathetically”. When the royal commission was first announced, the incredibly intelligent Gillian Triggs made the suggestion that the commission be conducted in two phases: the first phase to produce a quick report into the Don Dale abuse, and the second phase to look into youth detention more generally. In our respectful submission, Mr Brandis, the two-tiered approach is still a very good idea.


Media contact: Alex Tighe – 0487 326 384