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: Please contact our office at the number below.

Contact O’Brien Solicitors on (02) 9261 4281 to set up a free appointment with the defence lawyers in our Sydney office.

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

Northern Territory Royal Commission 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:








(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 contact: Please contact our office at the number below.

Contact O’Brien Solicitors on (02) 9261 4281 to set up a free appointment with the defence lawyers in our Sydney office.