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Northern Territory juvenile detention royal commission told use of force 'routine' at Don Dale – live Northern Territory juvenile detention royal commission told use of force 'routine' at Don Dale – live
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Richards is asked about terminology regarding ‘abuse/neglect unsubstantiated’.
She tells the commission Commonwealth data publishes national statistics on child protection, including a category of ‘unsubstantiated reports’.
“I had assumed that meant, as it does in the normal indicator that there had been some investigation and that the information provided proved to be unsubstantiated,” says Richards.
Not so, according to a witness from the Intake Service who had recently moved from interstate.
“She was quite shocked to find that in the Northern Territory records of the Child Protection Unit the words ‘abuse or neglect not substantiated’ simply meant that at the end of three months after the notification had come in, if they hadn’t reached it because they were overloaded or if they hadn’t been able to contact the child or the family because they were moving around, or if it had been referred out to one of the regional work units and that work unit had not had time to reach it because it was overloaded, it was entered as ‘abuse/neglect not substantiated’.”
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Richards says one witness she spoke to during her investigation, a senior police officer from a regional town, told her there were 3,000 reports from police about children who had been subjected to violence or were present when violence occurred and which had been sent to Central Intake Service. There was no record of these notifications, she says.
“It was unbelievable, incredible. I just couldn’t believe it, I still can’t. But the evidence was there. It was not happening.”
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In December 2008 the minister asked for a briefing about the process and a backlog of 380 notifications. She received a seven-page briefing on 13 January, a time which Richards said was notoriously quiet and understaffed because of Christmas holidays.
Richards wrote in her report that the information given to the minister “could not be described as accurate” and that a description of the dummy reports as shorthand was “misleading”.
Richards said her previous experience as legal adviser to the consumer affairs bureau meant she was very experienced with misleading and unfair statements.
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We’re back, with the former NT ombudsman. Apologies for the delay.
Richards is giving evidence on a 2011 investigation she ran into child protection during the term of the previous Labor government, which she began after receiving information from whistleblowers about 17 children in need. She’s told the commission the Central Intake Service was secretive and withholding information.
In more than 600 cases of child protection notifications of potential abuse, the assessment process was bypassed with blank “dummy intake forms”. The forms skipped straight to a final step which recorded the notification as “no further action”.
“The minister was told that the name of the child, the date of the report, a simple outline of what the facts were, was being recorded, assessed and entered into the database,” says Richards.
“And it wasn’t.”
The minister at the time was Malarndirri McCarthy, now a federal senator.
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Earlier we heard from Andrew Harris, representing former attorney general John Elferink.Earlier we heard from Andrew Harris, representing former attorney general John Elferink.
Harris told the commission the NT government had rescinded its financial assistance for Elferink’s legal fees.Harris told the commission the NT government had rescinded its financial assistance for Elferink’s legal fees.
A spokesman for the NT government has told Guardian Australia they have paid $57,000 in legal fees for Elferink since before the election.A spokesman for the NT government has told Guardian Australia they have paid $57,000 in legal fees for Elferink since before the election.
More to come.More to come.
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Technically difficulties at the commission have continued … We have adjourned for the moment. Bear with us.Technically difficulties at the commission have continued … We have adjourned for the moment. Bear with us.
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The restraint chair used against juvenile detainees, including Dylan Voller, was “unacceptable”, Mitchell says.The restraint chair used against juvenile detainees, including Dylan Voller, was “unacceptable”, Mitchell says.
Mitchell’s evidence has ended, and the former ombudsman for the Northern Territory, Carolyn Anne Richards, is appearing via video link.Mitchell’s evidence has ended, and the former ombudsman for the Northern Territory, Carolyn Anne Richards, is appearing via video link.
They are sorting out some technical issues before her testimony starts.They are sorting out some technical issues before her testimony starts.
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Lawrence is questioning Mitchell on the conditions of Don Dale – what used to be the adult maximum security prison – when she visited in May.Lawrence is questioning Mitchell on the conditions of Don Dale – what used to be the adult maximum security prison – when she visited in May.
“It was a difficult environment for children to be in,” she says. “Especially in the high security area.”“It was a difficult environment for children to be in,” she says. “Especially in the high security area.”
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The hearing has resumed and a solicitor for Jake Roper, John Lawrence SC, is now cross-examining Mitchell.The hearing has resumed and a solicitor for Jake Roper, John Lawrence SC, is now cross-examining Mitchell.
They are talking again about Opcat, and Lawrence suggests ratifying it would expose Australia and each state and territory to visits without notice to “check us out and see if we are complying with the international standards”.They are talking again about Opcat, and Lawrence suggests ratifying it would expose Australia and each state and territory to visits without notice to “check us out and see if we are complying with the international standards”.
Mitchell says yes, but the visits would be reasonably infrequent.Mitchell says yes, but the visits would be reasonably infrequent.
Australia first became a signatory back in 2009 but hasn’t yet ratified it. Why?Australia first became a signatory back in 2009 but hasn’t yet ratified it. Why?
Various elections and changes of governments were a “spanner in the works” in terms of a political appetite to ratify, says Mitchell.Various elections and changes of governments were a “spanner in the works” in terms of a political appetite to ratify, says Mitchell.
Mitchell had “canvassed” with states about what ratifying the Opcat would mean for states and territories but says she didn’t ask the specific question of whether governments would support it because she’s “not a political player”.Mitchell had “canvassed” with states about what ratifying the Opcat would mean for states and territories but says she didn’t ask the specific question of whether governments would support it because she’s “not a political player”.
She believes it’s still a “live issue” partly because she was informed by the federal Attorney General’s Department that the matter was under “active consideration”.She believes it’s still a “live issue” partly because she was informed by the federal Attorney General’s Department that the matter was under “active consideration”.
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Lunch break summaryLunch break summary
On the first morning of the royal commission into the protection and detention of children in the Northern Territory we’ve heard the opening address from senior counsel, and most of the questioning of the first witness, Megan Mitchell.On the first morning of the royal commission into the protection and detention of children in the Northern Territory we’ve heard the opening address from senior counsel, and most of the questioning of the first witness, Megan Mitchell.
Mitchell is the national children’s commissioner for the Australian Human Rights Commission.Mitchell is the national children’s commissioner for the Australian Human Rights Commission.
There was a lot of detail covered, and much of it centred around international treaties and conventions and Australia’s obligations.There was a lot of detail covered, and much of it centred around international treaties and conventions and Australia’s obligations.
Here’s a quick summary of where we’re at.Here’s a quick summary of where we’re at.
I’ll resume coverage in half an hour.I’ll resume coverage in half an hour.
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The commission has adjourned for lunch. I’ll have a summary of the morning’s developments shortly.The commission has adjourned for lunch. I’ll have a summary of the morning’s developments shortly.
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Evidence-based programs are “an investment in the good order of a centre if you get them right,” says Mitchell.Evidence-based programs are “an investment in the good order of a centre if you get them right,” says Mitchell.
“Without doing these kind of things and having a calm, well-structured environment and programs, you end up with riots and disquiet and kids fighting each other.”“Without doing these kind of things and having a calm, well-structured environment and programs, you end up with riots and disquiet and kids fighting each other.”
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Peter O’Brien, representing Dylan Voller (heavily focused on by Four Corners) suggests while cross-examining Mitchell that children were being “either prohibited or in some way hindered, or even encouraged against making complaints because of staff threats of retribution” in juvenile detention.Peter O’Brien, representing Dylan Voller (heavily focused on by Four Corners) suggests while cross-examining Mitchell that children were being “either prohibited or in some way hindered, or even encouraged against making complaints because of staff threats of retribution” in juvenile detention.
Mitchell says that was the feeling of some children she spoke to in May.Mitchell says that was the feeling of some children she spoke to in May.
“They might have things denied to them or they might be put back in isolation, or kept longer there” she says.“They might have things denied to them or they might be put back in isolation, or kept longer there” she says.
“These are the kind of things that they alluded to.”“These are the kind of things that they alluded to.”
O’Brien wants names.O’Brien wants names.
Mitchell says she’ll have to get advice on that.Mitchell says she’ll have to get advice on that.
4.17am BST
04:17
Phillip Boulton, SC, who is representing Naaja (which he struggled to name at the directions hearing but for the record is the North Australian Aboriginal Justice Agency) has asked Mitchell what the challenges are in the NT for children held in detention while on remand (estimated at more than 50% of detainees Mitchell thinks).
“They aren’t routinely separated from kids who aren’t on remand or who have been sentenced, which is actually another provision of [Opcat], so they don’t form those associations and they don’t form those identities” says Mitchell.
She says community based options are “exactly the kind of models that we need”.
You need good accountability and safety structures, of course, she adds. Koori courts in other states are also worth looking at.
4.09am BST
04:09
Sonia Brown-Hill SC, solicitor general and representing the NT government for the commission, is seeking to cross-examine Mitchell about her statements regarding Don Dale’s educational system, because they “might convey that the educational program... is substandard and inappropriate. It certainly is not - ”
Commissioner White cuts her off.
“Perhaps if you’re going to give evidence you might need to get into the witness box, solicitor.”
Brown-Hill goes ahead. She challenges Mitchell’s previous statements, which Brown-Hill interprets as saying that she believed there was no educational system and no air-conditioning at Don Dale.
Mitchell says she was talking about the high security area, and that it was “hot and stifling. Maybe it hadn’t been switched on, she says, but she didn’t see any air-conditioning units.
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Detention as a welfare response
Mitchell has urged against using juvenile detention as a “welfare response.”
“If you did an in depth analysis into the backgrounds [of kids in juvenile detention], there would be a significant proportion who have had a substantiated care and protection report about them and also been in the care system,” she says.
Others end up in residential units when a community-based home can’t be found, and if they act up the police are called and they end up in detention.
Detention is the wrong response, she says.
“That doesn’t mean there are no consequences for your actions. You can still be supervised in the community, you can still have conditions placed on you. But 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.”
3.51am BST
03:51
Mitchell is criticising the NT’s recent introduction of an amendment to the Youth Justice Act. Under the previous government, the use of restraints against juveniles in detention was widened, including spithoods and restraint chairs, and the definition left open to interpretation.
Following Four Corners, the chief minister, Adam Giles, backflipped on the use of restraint chairs and pulled them from use in juvenile centres (but not adult ones).
The removal of restraint descriptions from the act gave more discretion to the commissioner of the day and was “problematic” in terms of compliance with appropriate standards, says Mitchell.
3.45am BST
03:45
There are issues with public accountability for correctional facilities, Mitchell is describing.
Mitchell says the NT government and corrections have tended to rely on the Children’s Commissioner and Ombudsman as the main independent oversight bodies.
However she said while the two bodies had a functional level of independence, they did not have legislated unfettered access, to institutions or their records, which reduces transparency and limits oversight, particularly in regards to critical incidents and the use of force.
“The biggest failing is that they don’t have access to that public information.”
3.39am BST
03:39
Use of force in Don Dale 'a matter of normal conduct'
In her capacity for the AHRC, Mitchell has been examining youth detention and oversight, and Australia’s capacity to ratify and implement the optional protocol to the convention against torture (Opcat).
She wrote to all governments, including the NT commissioner for corrections, explaining that she was examining how the interests of young people in detention could be monitored under the Opcat.
Mitchell visited Don Dale, spoke to staff and detainees, and asked detainees to complete a survey.
“Were you able to identify potential breaches of relative instruments that you’ve identified?,” asks Callaghan.
“It was clear that isolation was frequently and routinely used and for very long periods of time,” she says, elaborating that it was 23 hours a day for several weeks that some people were held in high security isolation.
“It was also clear that the use of force was routinely used as a matter of normal conduct of the business of the organisation, not just... when there was an incident or to overcome an incident.”
“The facility itself is old and ageing and things are broken and toilets are rusty, and as I said before there’s no air-conditioning. It’s very hot. There’s minimal air flow and there are periods of extensive isolation and use of force. And I think all these things are breaches of human rights.
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03:16
Mitchell visited Don Dale around March this year.
A lot of the kids were unhappy with the educational provision there, says Mitchell, and they made the comment that they understood that even if they achieved various scores or got through various programs that it would not necessarily contribute to their qualifications.
She says the superintendent at the time was “doing what he could” to redevelop an area for recreational and other programs, and putting fans in because none of the areas were air-conditioned.
“It’s a very difficult facility regardless.”
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On education:
Mitchell visited eight juvenile detention centres in the last year and said there were good examples of education programs, particularly those with one-on-one tailored programs for detainees who had fallen well behind.
“Some of the better ones have really good connections with the mainstream school in the community where that child is from.”
“Many of these young people really enjoy going to the school. For some, it’s the first time they have been at school for a steady period for quite a while so it is a chance for them to catch up a bit and get back on track.”
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02:56
Mitchell is being quizzed on Australia’s action on various international laws and treaties which are relevant to the detention of children.
She’s made particular mention of the UN convention against torture, and the optional protocol which Australia is currently considering and which would provide oversight mechanisms in places of detention.
There is a lot of legal groundwork being done here.
They move to the convention on the rights of the child and the elements which relate to detention of children.
Mitchell notes children “by their nature are developmentally vulnerable”, “have relatively less power as individuals in the world”, and that “institutions are inherently risky places”.
“Where children are involved and the relative imbalance of power between adults who are carers and children is heightened, there is much greater risk of abuse and exploitation, and silencing.”
She says being away from family and advocates adds an additional vulnerability.
“Human rights are not rocket science,” says Mitchell. “Everyone deserves the right to be OK and to do well in life.”
“There is a large body of work and, yes, much of it is interrelated but there are also some very specific things around children’s needs which that we need to be cognisant of, particularly when a government is setting out what services and supports and laws it’s going to make in relation to children.”
Asked what standards are needed, Mitchell says:
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2.35am BST
02:35
Megan Mitchell, the national children’s commissioner at the Australian Human Rights Commission (AHRC), has taken the stand.
At an international level, breaches of human rights are an embarrassment to a country, and can impact diplomatic and moral authority, she says.
Domestically, international treaties need to be written into law after they’ve been been ratified in Australia, a different approach to some other places where the treaties become law as soon as they’re ratified.
“Many human rights in our system are not backed up by legal protections,” she says.
“The most common way that Australia does not comply with international human rights standards is that we do not provide legal protection in our system for human rights.”
After questioning from counsel, Mitchell says the AHRC identifies noncompliance with human rights obligations, and makes recommendations to government but it’s up to the government of the day to act. The AHRC has no power to ensure compliance.
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