What’s Happening in The Northern Territory?

There are several Don Dale-related legal proceedings happening in the Northern Territory, so at times they tend to blend into one another. Each of these proceedings, though, has different legal (and social) significance, so it is worth spending a bit of time to untangle them from each other.

There are three main proceedings: the royal commission (obviously); Jake Roper and Dylan Voller’s civil suit against the Northern Territory; and the civil suit of the four other boys who were tear-gassed in Don Dale. Let me give a bit more detail about each one:

The Four Boys Suing the Northern Territory:

  • Four Corners showed footage of six boys being tear-gassed inside the solitary ward of Don Dale Detention Centre. Two of those boys were Dylan Voller and Jake Roper, and those two are jointly suing the NT Corrections. The four remaining boys – whose names have been suppressed – are bringing a separate joint suit against the Northern Territory in relation to the tear-gassing incident. These four boys are suing for battery and assault.
  • This case began its hearings on September 26. A lot of the evidence is simply reminding us of the appalling things we already knew: that there was no running water in the tiny cells; that the boys were kept in solitary confinement for 15-17 days before the gassing incident; and that the boys were locked up for 23 hours per day. But the case has also brought to light some new evidence. This ABC article contains some distressing, previously unseen footage of a boy being placed under a spithood and shackled at the hands and legs. We also now know that the official incident report significantly understated the amount of tear gas that was actually used.
  • The other thing to know about this case is that the Northern Territory was originally counter-suing two of these boys for damage they caused to Don Dale after breaking out of, and then back into, the detention centre. The Territory government dropped that counter-suit after public outcry.

Dylan Voller and Jake Roper’s Suit against the Northern Territory:

  • Dylan and Jake are taking a joint action against the Northern Territory in relation to the tear-gassing incident, with a few differences to the above case. Dylan and Jake are suing for battery, assault, and also false imprisonment. For those who are interested in using the law for social good, this case could be very interesting in asking questions of legality around the use of solitary confinement within prisons.
  • One unique factual element of the Voller/Rope case is Roper’s age – Roper was just 14 when the incident occurred. Following the tear-gassing, the on-call magistrate gave permission for five boys to be transferred to the adult prison for holding. That night, all six boys were transferred to the Darwin Correctional Centre. This was an obvious breach of the Youth Justice Act, which places an absolute prohibition on sending people below the age of 15 to an adult prison. The morning after the transfer the error was discovered, and Roper was moved out of the adult facility. (All of this information can be found in the Children’s Commissioner’s August 2015 report).
  • The start date for the Voller/Roper suit has not yet been listed (we’ll post an update when the case is listed).

Royal Commission:

  • The royal commission will examine the Don Dale tear-gassing incident, but that will only play a small part in the proceedings. The reason why the royal commission was established was because there is reason to believe that the abuse within Don Dale is merely the outward result of a failing system of juvenile justice. The terms of reference authorise the royal commission to inquire into the treatment of detainees, the culture and management of prisons, the NT government’s role in permitting the abuse to continue, the medical services available to kids in detention and possible deficiencies in the NT’s child protection system. That’s a lot to look into. We sincerely hope that the commission has enough time to make a thorough investigation, but questions have been raised about the six-month time frame.
  • At the end of this inquiry, the two royal commissioners – Margaret White and Mick Gooda – are “to make any recommendations arising out of your inquiry that you consider appropriate”. That’s a deceptively simple statement of an immensely complex task – without a doubt the most difficult task the commissioners will face. When it comes to recommendations, there will always be a gap between what is best and what is achievable. White and Gooda will want to avoid falling into this gap, and it has previously been said that Mick Gooda “shares the community’s fatigue with reports that achieve no change”.

Northern Territory Royal Commission: Day One

NTRC Banner

Day One of the Royal Commission wasn’t day one in any substantive sense – it was merely a directions hearing, the purpose of which was “to inform key stakeholders and the public about the nature and scope of the Commission”. Regarding the scope of the Commission, it has become clear today that the inquiry will focus on a ten-year window, from August 2006 until August 2016. That period will be wide enough to capture all of the abuse experienced by our clients – Dylan Voller and Jake Roper – and will hopefully be wide enough to examine the root causes of the abuse within Don Dale and other youth prisons.

The proceedings officially began with statements from each of the commissioners. Commissioner Mick Gooda (former Aboriginal and Torres Strait Islander Social Justice Commissioner) stressed the fact that community engagement – especially the engagement of Indigenous groups – will be critical to the success of the Royal Commission. To that end, the Commissioners have met with groups across the Northern Territory and have employed two “senior Aboriginal people” to liaise with the community: however, there are concerns from some Indigenous groups that these efforts are not comprehensive enough.

Commissioner Margaret White AO used her opening remarks to very helpfully explain the processes through which witnesses are summoned or seek leave to appear before the court. She also stated that:

“There can be no one in our community who is not anxious to find out if there are ways to bring about a significant reduction in child offending so that those children may live fulfilling lives in harmony with their own communities and so that a broader civil society may prevail, overall, in the Territory.”

Following the openings from the Commissioners, the two counsel assisting – Peter Callaghan SC and Tony McAvoy SC – had the chance to slot in their two cents. Callaghan should be applauded for mentioning the importance of diversionary measures in preventing crime, stating that “There are obvious and profound benefits, for the children, their families and the community, if such measures can be deployed successfully.” McAvoy likewise deserves praise for directing the attention of Commission to the Convention on the Rights of the Child (CROC). You might not know it in Australia, but human rights conventions exist for a reason – to set a minimum standard of behaviour for the treatment of the most vulnerable members of society. Australia would do well to put more focus on human rights instruments, and this royal commission is a very good place to start.

With all the pre-written formalities over, Commissioner White invited the lawyers in the room to publicly record their applications to appear before the Commission. This wasn’t strictly necessary (the applications also have to be formally submitted, and it is those paper applications which matter), but this part of the day provided a bit of levity. The lawyer for NAAJA was at first unable to explain what his acronym means,* prompting Commissioner White to joke that “the Territory is more full of acronyms than any other place I’ve ever encountered”.

The Commission will begin its main hearings in mid-October. When it does get underway, some the best Twitter accounts to follow are:

@nedavanovac

@katewildabc

@nadiasdaly

@heldavidson

@james_oaten

@james_felicity

@jacqueline_e_b

(If we’ve left anyone out, please get in touch and we’ll add them to the list)

Speaking of Twitter, there was some online confusion over which hashtag to use: #rcnt or #NTRC. Our view on this doesn’t matter a whole lot, but – for the record – we prefer #NTRC. It’s cleaner, you know. Less likely to be misconstrued.

The deadline for the findings of the Royal Commission is 31 March, 2017.

Update: The current Children’s Commissioner, Colleen Gwynne, has just held a press conference in which she made it very clear that “there needs to be a really broad high-level reform of youth justice and whatever that model will look like, it’s got to be significantly different to what we have now”. Colleen Gwynne is the successor of Dr Howard Bath, who was initiated this instrumental investigation into the tear-gassing incident.

Media enquiries – Alex Tighe, 0487 326 384

Juvenile Justice Done Wrong, and How to Do It Right

Screengrab obtained Tuesday, July 26, 2016 of the Don Dale Youth Detention Centre in Berrimah, NT. Prime Minister Malcolm Turnbull has called for a royal commission into the NT's youth justice system after ABC's Four Corners exposed abuse of teen inmates at the centre. (AAP Image/Four Corners) NO ARCHIVING, EDITORIAL USE ONLY

(AAP Image/Four Corners)

Before the Northern Territory Royal Commission begins in October, let’s take a short breather to remind ourselves what it is we’re examining. Don Dale showed us the worst of what juvenile detention can be. Four Corners broadcast footage of children as young as thirteen being abused, assaulted and belittled. These children – denied opportunities and demonised by politicians and society – became trapped in the revolving door of prison, to be re-abused by another set of guards with inadequate training. Don Dale was like a version of the Stanford prison experiment: make-believe criminals being beaten up by make-believe guards.

If the Don Dale Youth Detention Centre ever had a justification to exist, it lost it a long while ago. When the Royal Commission looks at Don Dale it will be examining the model of an unsuccessful juvenile justice system. So today, let’s look at some successful systems, and see what can be learnt for the future of youth justice in Australia.

The Scandinavian Model

In Norway, Sweden, Denmark and Finland, the age of criminal responsibility is 15. This means that in those countries it would be legally impossible to incarcerate a thirteen-year-old for theft (this is what happened to Dylan Voller). Rather than a penal system, these Scandinavian countries address the crimes of the very young with intensive social welfare systems. It’s been called a “cross-professional” approach, and it sees schools, social welfare officers, child psychologists, health professionals and police sharing information about any at-risk children, so that a comprehensive, individualized approach can be taken to ensuring their welfare. It is exactly the way a caring parent would try and divert their child from further errant behaviour.

So Scandinavian countries don’t treat offending children like the bane of society? How do their politicians make small talk? In the words of The Atlantic:

“[T]throughout Scandinavia, criminal justice policy rarely enters political debate. Decisions about best practices are left to professionals in the field, who are often published criminologists and consult closely with academics. Sustaining the barrier between populist politics and results-based prison policy are media that don’t sensationalize crime—if they report it at all.”

We can already hear the Hadley acolytes tapping out their objections: how do you expect to stop crime if you don’t adequately punish people? The thing is, Scandinavian countries do stop crime – it’s just that they stop it before it happens. This proactive approach results in vastly better outcomes for all parties: the victim doesn’t suffer the trauma of crime, society doesn’t have to pay to for lawyers and jailers, and the child doesn’t have their future compromised by criminal charges.

Sure, the acolytes protest, but does a softer system actually work? And would it work in New South Wales? In 2014 the Australian Children’s Commissioner, Megan Mitchell, stated that “evidence has shown that policies and preventative interventions which help to address vulnerability in children will ultimately reduce rates of juvenile offending.” On the contrary, she said, contact with the penal system actually increases the rate of reoffending, and makes it more likely that kids will commit crimes into adulthood. Mitchell’s evidence is here.

The full title of the upcoming royal commission is the Royal Commission into the Protection and Detention of Children in the Northern Territory. They’ve done one thing right already: Protection comes before Detention. Let’s make that a reality.

(Apologies for the lack of blogging. We’re going to follow the example of the Northern Territory government and blame everything on Four Corners.)

Under cross-examination, ADF Vice-Chief admits guilt of institution

ADF Chief Apologizes SMH

During cross-examination by Peter O’Brien, Vice-Chief Ray Griggs talked openly about the ADF’s failure to protect victims of child sexual abuse. Griggs’ comments came on the very last day of the Royal Commission’s 8-day inquiry into the Australian Defence Force.

Peter has been representing three survivors of child sexual abuse at the Royal Commission. One of them was a cadet at HMAS Leeuwin Naval Base; another attended Balcombe Army Apprentice School. Asked about these two institutions, Griggs replied:

Well, I’ve said publicly that I think the Navy of the day failed in its duty of care in respect to Leeuwin; and I would make the same sort of observation, based on the evidence that has been presented, in regards to Balcombe.

Peter further probed Vice-Chief Griggs about the ADF’s future role in assisting survivors of child sexual abuse.

Peter O’Brien: Practically speaking, then, what have you been doing or what do you intend to do, given what you have heard about the very significant difficulties that these survivors have had in accessing appropriate not only services but reparation in terms of compensation and payments of damages?

Griggs: …[T]here has been a massive shift in the approach that Defence has taken towards dealing with these claims. Now, you know, I’m not qualified to talk about the nuts and bolts of the claims, but what I would say is that we are not going to shy away from our responsibilities.

Earlier in proceedings, Vice-Chief Griggs had requested permission from Justice Peter McClellan to address the survivors directly. Turning to the public gallery, he stated that, “People and systems have failed you and they have put others at risk and that is simply not good enough.

“I am deeply sorry for what happened to you. No one who pulls on the uniform of this country and no child who is under our care should ever have had happen to them what has happened to you.”

Read more at: http://www.smh.com.au/nsw/adf-vicechief-ray-griggs-apologises-to-abuse-victims-at-royal-commission-20160629-gpv4b2

Lifeline: 13 11 14 or www.lifeline.org.au

Beyond Blue: 1300 22 4636 or www.beyondblue.org.au

Media, Misinformation and Punitiveness: The Unholy Trinity

Take a group, and split it into two. Each half is asked to comment on a case. The first group gets their information about the case from a newspaper. The second reads a summary of the court documents.

You won’t find a better metaphor of the divide between the informed and the misinformed than this 1988 study by Roberts and Doob. More than half of the people in the court documents group thought that the sentence imposed was too harsh. Of those who learnt about the case from the media, 63% thought that the sentence was too lenient.

The study provides two key lessons. The first is correlative: it demonstrates the connection between the media and misperceptions of criminal justice. The obvious explanation of this phenomenon comes from Gelb, who writes that “[the media tend to focus on unusual, dramatic and violent crime stories, in the process painting a picture of crime for the community that overestimates the prevalence of crime in general and of violent crime in particular.” Likewise, the only sentences that excite the press are the unusually lenient ones.

Lesson two again reveals a correlation; specifically, the bond between misinformation and punitiveness. The further a person is from the criminal justice system, the more bloodthirsty they become. (To illustrate: Kate Warner conducted a study in 2011 that asked jurors what they thought of the sentence imposed in their cases: 90% answered that it was either very or fairly appropriate.) There’s another obvious explanation here: the misinformed public is more keen on punishment, because the media makes crime rates seem worse than they actually are. The Doob and Roberts study pierces right to the core of the problem: the unholy trinity between media, misinformation and punitiveness.

The widespread diffusion of this blind belligerence made it inevitable that it would be adapted into public policy. The policy has been accurately termed “penal populism”. Populism is the mot juste: a policy is populist when it is designed to win votes, without any concern for its actual effectiveness. Punitiveness plays to the baser instincts of the uninformed electorate. As for its effectiveness, multiple studies have shown that rehabilitation is miles ahead when it comes to reducing recidivism. Rather than taking the reader through these multiple studies, one gets a much more powerful image by seeing just how ineffective harsher punishment is. In America – where the illness of penal populism is at a more advanced stage than in Australia – 1 in every 14 African-American children has a parent behind bars. If you’re black, male, and in the prime of your life (25-29 years old), on any given day you have a 1 in 8 chance of being incarcerated.

Unless the penal impulses of the public can be bested, this dystopia is the telos of the Australian criminal justice system. Smarter media coverage of crime is one way to resist punitiveness, and at the same time politicians need to resist the basic instinct to capitalise on populist policy. The central player, the legal system, needs to find a better way to communicate its work to the public. Misinformation doesn’t correct itself; not to oppose penal populism will be enough for it to rot our criminal system from the outside in.