Improper practices in youth detention: a national crisis?

In the wake of the Royal Commission into the Protection and Detention of Children in the Northern Territory, we have been heartened to see other State and Territory governments conduct reports into the conditions of their own juvenile detention centres. However, what has emerged from these reports are chilling stories of abuse, self-harm & the abandonment of our vulnerable youth to a system disinterested in their future. 

As a soul-crushing illustration, reports into Western Australia’s Banksia Hill Facility revealed that young detainees have been treated like they were the most dangerous organised criminals in the country. Troublesome detainees were controlled by restraints, flash bombs and shotgun laser sights. In a similar fashion over in NSW, six heavily armed tactical police sat in Parramatta Children’s Court at an appearance for two young co-accused in February this year.  

tactical officers with assault rifles

There is a worrying trend of militarisation in youth justice.

Labelled and treated as our society’s lowest from such a young and formative age, they understandably struggle to see themselves integrating into the community. Shockingly, since opening its business in 2016, the Banksia Hill Facility has seen six attempted suicides and hundreds of self-harm incidents.  

Some may argue that these incidents are the result of poor funding because government resources are better put elsewhere than criminals. The report into the Brisbane Youth Detention Centre (BYDC) concluded that staff were sometimes pushed to extreme solutions granted they were frequently required to work 12-hour shifts for days or nights on end.

Yet this does not explain the deliberate cruelty that a number of youth detention centre staff inflict upon the children in their care. The use of other young detainees as ‘enforcers’ by staff to intimidate other troublesome youth at the BYDC is one example of such a baffling lack of consideration for vulnerable and marginalised people. There is clearly a wider cultural issue of indifference to issues facing at-risk young people that enables heartless actions in youth detention. 

We have taken the first steps to correcting the mistakes of the past by bringing them to the surface. As informed citizens, we all play a very important role in questioning that indifference across the country. There is a compelling reason to act quickly and act now: if children receive no basic respect, as adults they will have none.

If you are needing help with basic human, civil or legal rights, contact O’Brien Solicitors on (02) 9261 4281 24 hours a day, 7 days a week to get help from one of our human rights lawyers in our Sydney office.

Victoria passes new legislation reversing onus of proof for child abuse matters

In recent days the Victorian government passed an Australian-first piece of legislation that signals a huge reform in how child abuse cases are to be prosecuted. Entitled the Wrongs Amendment (Organisational Child Abuse) Act 2017, it has the effect of reversing the onus of proof onto organisations accused of failing to prevent child abuse.

This means that if you are a victim of abuse in Victoria seeking to sue organisations that employed the abusers, you no longer need to prove that the organisation failed to take any precautions in preventing the abuse. Rather, the burden is now on the accused organisation to prove measures were taken to prevent it. ‘Organisations’ includes churches, community groups as well as teachers and government authorities that look after children.

In effect, this law greatly contributes to levelling the legal playing field that ordinarily saw individual victims heavily disadvantaged against larger, more powerful organisations.

A key lesson to take away from the two recent Royal Commissions concerning child abuse is that it is too simple for institutions to deny liability by denying knowledge and forcing the abused to establish knowledge of the abuse or the abuser’s past behaviour that ought to have sent red flags to the organisation. It has also become painfully apparent that many institutions sought to protect their own reputation or that of their membership by concealing the abuser’s behaviour and protecting the abuser whilst simultaneously alienating and ostracising the abused. This loaded the pain and suffering of those survivors of abuse.

Royal Commission into Child Abuse

Royal Commission into Child Abuse. Photographer: Jeremy Piper

It has been notoriously difficult for victims to prove that institutions have broken the duty of care they owed them, if those institutions accept that they owed a duty in the first place. This has lead to many victims settling their proceedings with inadequate and meagre settlements. For the community and particularly for the victims and their families, this new law helps to remedy this clearly unjust state of affairs.

In the future, we hope that other States and Territories also take note of the lessons from the these Royal Commissions and the example that Victoria has set with its new legislation.

The buck must stop with the men and women who have the power to prevent threats to child safety.

  • You can see the Victorian Attorney-General Martin Pakula’s media release here.
  • If you would like more information about the Royal Commissions mentioned above, also see the Royal Commission into Institutional Responses to Child Sexual Abuse here, and the Royal Commission into the Protection and Detention of Children in the Northern Territory here.

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 www.samsn.org.au.

Lifeline: 13 11 14

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.)

The importance of the work of the Royal Commission

Peter has been appearing at the Royal Commission into Child Abuse for the past few week.A few sentences is not enough to communicate the full horror of Ken McIlwain’s experience, so instead we will give a mechanical retelling of his story. As a cadet in the Australian Defence Force Ken was sexually assaulted, repeatedly, by two senior members. When he approached medical officers, they brushed him off and gave him valium for anxiety. As the assaults continued, he attempted suicide by overdosing on the valium. He was taken to hospital. While there, his parents visited him, and Ken told his father about the assaults. His father beat him and called him a liar. To this day, he compulsively collects the brand of soap that he used to wash himself after each rape.

The Royal Commission into Institutional Responses to Child Sexual Abuse was established to investigate exactly how our institutions failed to protect children. The Commission needs to hear the stories – in their devastating entirety, rather than in the sanitized form above – so that it can make recommendations of how best to prevent this abuse from recurring. It is vital work.

The role of lawyers in this process is to facilitate the gathering and sharing of information. O’Brien Solicitors appeared at the Royal Commission when it was investigating child abuse in Ballarat, and is appearing now during the investigations into the ADF. Please, please watch the story below, and take note of Ken McIlwain’s appeal: if you, or someone you know, has been the victim of abuse, they will be supported to speak out.

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

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