Sky News’ Matt Cunningham is unimpressed by the actions of the Royal Commission into the Protection and Detention of Children in the Northern Territory, in restricting cross-examination of detainees, failing to proceed with hearings before Christmas, and obtaining a five month extension until next August from the Turnbull and Gunner governments and then promptly adjourning further hearings until March.
— Matt Cunningham (@mattcunningham) December 23, 2016
I partially agree, although there are valid reasons for some of those steps.
They mostly stem from the Practice Guidelines for evidence and cross-examination of “vulnerable” witnesses (i.e. detainees). They largely prevent direct cross-examination of detainees by the barristers for other parties. Instead, lawyers for parties affected by detainees’ evidence and allegations (essentially custodial officers, management staff and relevant Ministers) are required to provide statements of their own’ clients’ intended evidence and to specify where facts or events alleged by those clients conflict with the version given by a detainee. Counsel assisting will then cross-examine the detainee on that area of conflict. Obviously this is aimed at preventing excessively aggressive cross-examination that could traumatise vulnerable witnesses. Procedures of that sort have been developed and used during the Royal Commission into Institutional Responses to child Sexual Abuse, and were approved by the High Court many years ago (in cases like O’Rourke v Miller) as an appropriate way of balancing the competing public interest imperatives of protecting vulnerable witnesses from being further traumatised by the legal investigatory process itself with the necessity to ensure that their evidence is adequately tested and scrutinised.
The problem with the Guidelines is that they require long lead times for vulnerable witnesses to be able to give evidence and have it properly tested. The affected parties’ lawyers need to be provided with the vulnerable witnesses’ statements far enough in advance to allow them to analyse and compare them with their own clients’ statements and then to provide the Commission with a concisely drafted list of contested issues. As I understand it, the parties’ lawyers were not provided with those statements, or notice of the Commission’s intention to call up to 18 detainee witnesses before Christmas, in sufficient time to allow them to comply with the Practice Guidelines. Hence loud protests from some barristers, which resulted in only two detainees actually giving evidence so far.
The five month extension now granted to the Commission has allowed it to permit the other parties to have a much more generous lead time before hearings recommence. Nevertheless, adjourning further hearings until March seems a little too generous. Apart from anything else, the Interim Report the Commission is required to deliver by 31 March is likely to be a document of very limited use. Very little evidence from either the detainees or other parties involved will have been heard by then.
However, my own concerns about the Commission are much more general than that. It has seemed to me from the outset that it will almost certainly be largely a waste of time and money, and may if anything actually reduce the probability of necessary reforms being implemented. Let me explain.
For a start, we already largely know what reforms are needed, because they have been examined and reported on numerous times over the years by acknowledged experts in the field e.g. reports by former CLP politician and lawyer Jodeen Carney (commissioned by the former Henderson ALP government), Michael Vita and former Children’s Commissioner Howard Bath. It is very unlikely that the current Royal Commission will come up with any new or startling recommendations not already covered in those earlier reports. What has been lacking to date is sufficient political will and enough funding to fully implement the recommendations of these earlier enquiries.
The Labor government made a start on implementing Carney’s recommendations (at least the cheaper ones) after her 2011 report but didn’t get very far before being tossed out of government in 2012. The new Mills/Giles CLP government largely abandoned that task in an effort to balance the Territory Budget, and later adopted an ill-advised strategy of doing an el cheapo makeover of the former Berrimah adult prison as a replacement juvenile detention facility for the unsuitable and outmoded Don Dale Youth Detention Centre in the wake of the teargassing and other events of 2014 that have become nationally notorious in the wake of the recent ABC Four Corners program.
To its belated partial credit, the former and unlamented CLP government did make some attempt to implement some of the recommendations of the 2015 Vita and Bath reports. But neither ALP nor CLP governments have made serious attempts to implement the more central and serious recommendations of the Carney report. It is obvious to anyone with any knowledge of the NT youth justice system that the central (and most expensive) needs are:
- A range of community-based diversionary programs to minimise the number of juvenile offenders being sent to detention facilities. Most offenders don’t need to be in detention at all and their conduct and life prospects are actually made worse by imprisonment.
- A range of lower security detention facilities, again mostly community-based or at least situated in or near remote communities and partly staffed by suitable respected elders. They should aim at equipping offenders with the educational, job and life skills they need to succeed, along with habits of self-discipline many have never learned in their home environments. The old Wildman River facility, at least while it was run by the legendary Paul Nuku, had at least some of those attributes. Maybe the NZ program that the Commissioners are going on a junket to inspect also provides a useful model, although why they actually need to travel there is not obvious.
- A much smaller new and well-designed maximum/medium security facility for the minority of offenders who need to be securely confined for their own protection and that of the community. Many if not most of them exhibit “challenging” behaviours (i.e. they are almost uncontrollably violent, manipulative thugs and bullies) and have a range of mental illness and serious drug-related problems including foetal alcohol syndrome, brain damage from petrol sniffing, “ice” or other drug addiction, and serious personality disorders. They present extreme management problems and their behaviour would try the patience of a saint (very few of whom are attracted to employment in NT juvenile justice facilities).
- Careful selection, training, monitoring and discipline of juvenile justice custodial staff. My understanding is that most (though probably not all) of the “bad eggs” featured in the Four Corners program have been moved on. But the reality is that, just as church and charitable homes for kids tend to attract pedophiles (as garbage trucks attract flies), juvenile detention facilities can attract petty thugs and bullies to work there.
In light of these known priority reform areas, the major problem with the current Royal Commission is its high cost. The Commission’s budget is said to be $50 million, which is claimed not to have risen at all despite a five month extension granted only this week. It is difficult to see how that could be true, unless the Commissioners, lawyers and support staff have all agreed to work for nothing for five months (which is most unlikely). The only obvious alternative explanation is that quite a lot of expensive but non-essential expenditure items have now been abandoned. But if that is true it gives rise to other and equally disturbing questions. Then there is the NT government’s own additional expenditure in defending its staff before the Commission.
All in all, it is difficult to see how the total government spending flowing from the Commission will leave much change out of $100 million. It is highly unlikely that the Turnbull government will be willing to fund the priority youth justice reforms discussed above. The NT is already very generously funded and neither the states nor their federal MPs are likely to be favourably disposed towards giving us even more money, especially given seemingly intractable federal budget deficits. What will predictably happen instead is that the NT government will be told it must find the money from its own resources to implement the Royal Commission’s recommendations. It is equally predictable that the NT government will make all the right noises but only token real world efforts, given the longstanding perceived electoral imperative on the part of both major parties to win or retain power by pork-barrelling Darwin and Alice Springs at the expense of remote Aboriginal communities.
There aren’t any votes in facilities and programs for juvenile offenders (except perhaps on Twitter). What should really happen is that the Royal Commission should be abandoned right now and acknowledged as the silly idea it was from the beginning. The $100 million currently being urinated down a legal gutter should instead be devoted to implementing all the recommendations of the Carney, Vita and Bath reports without further delay. But of course that won’t happen. It’s depressing. I knew I shouldn’t have embarked on an article like this on 24 December. Bah humbug! Merry Christmas!