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:

@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 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.

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.)

A Survey of Prison Conditions and Post-Prison Options

An astounding 40.3% of prisoners in Australia are back in prison within two years of release. We’ve been following The Conversation’s Beyond Prison’ series on issues relating to prison conditions and post-prison release – this blog post summarises the best insights from across the articles.

Andrew Day advocates a smarter, evidence-based approach to rehabilitation in prisons. After tracing the history of rehabilitation from the 18th century to today, Day identifies the most important steps that need to be taken. Of these, it is crucial that low-risk offenders have minimal contact with higher-risk offenders. In order to achieve this, courts must use their diversionary powers to keep low-risk offenders out of prison. For maximum effectiveness of these diversionary tactics, community-based rehabilitation options need to be improved.

James Ogloff’s article elucidates the link between mental illness and prison. According to Ogloff, “[p]prisoners are two to three times as likely as those in the community to have a mental illness and are ten to 15 times more likely to have a psychotic disorder.” Even more disturbingly, research from Victoria (with similar research in other states) shows that “72% of male Aboriginal prisoners and 92% of female Aboriginal prisoners met the criteria for a diagnosis of a major mental illness.” Ogloff advocates screening for mental illness at all entry points into the criminal justice system (and well before the individual enters prison). He also highlights the need for better coordination of follow up care, including what would seem like a basic requirement: ensuring that all prisoners have the necessary psychiatric medication upon release.

Bronwyn Naylor strongly disputes the idea that the recent increase in incarceration rates is driven by an increase in crime. The fact is that crime rates are not uniformly rising. On the other hand, there is a much clearer connection between increased rates of imprisonment and increased levels of social inequality.

Kathryn Snow and Lynn Gillam expose the philosophical inconsistency underlying the current approach to incarceration. For example: they ask why, if prison is for the protection of the community, Aboriginal youths are locked up for unpaid driving fines? Their article opens up a bigger question: if incarceration isn’t keeping the community safe from recidivism, then how can we justify a prison system that is causing so much harm to individuals?