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The Royal Commission into Juvenile Detention: a wake up call or a defining moment?

Many Australians would have woken yesterday morning after a restless night’s sleep, thanks to the disturbing footage of the abuse of teenage boys incarcerated in a Northern Territory Juvenile Detention Centre, aired on Monday night by the ABC’s Four Corners program.

The Prime Minister Malcolm Turnbull was up early too: his announcement of “a Royal Commission, in co-operation with the Government of the Northern Territory into the Don Dale Youth Detention Centre” came before breakfast, both in a formal statement and on AM radio. He vowed to “move quickly to finalise Terms of Reference and recommend an eminent person to conduct the inquiry.”

As detailed yesterday at Croakey, there has been widespread and bipartisan support for the Prime Minister’s decision to act on this issue.

The Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Gooda, captured the collective outrage and mood for urgent remediation, when he told a press conference, “This must be a wake-up call to everyone in Australia. Something has to be done about the way we lock up people in this country, especially our kids.”

The distressing scenes depicted in the Four Corners footage have also led to calls for a wider examination of juvenile detention, and the issues which see high rates of incarceration of Indigenous youth nationally.

Excerpts from some of the statements emerging from organisations involved in the welfare of young people are posted below. Amidst all the public discussion – and there has been a huge amount of it – there have been several recurring themes, offered here for consideration and further discussion.

What should be the scope and terms of reference of the Royal Commission?

The Prime Minister’s initial announcement was that it would be joint NT/federal Commission into the treatment of children held in the Don Dale Detention Centre, but NT Chief Minister Adam Giles flagged  later that, as he and the Federal Attorney General George Brandis worked to negotiate the terms of reference, he would like it to “look at some of the root causes … why children are entering the youth system in the Northern Territory … recognising that there are children who are being neglected, unloved, getting into trouble, causing trouble in the streets, and finding their way into our detention facilities.”

The individuals and organisations releasing statements yesterday were in favour of a wide-ranging examination of the NT Juvenile Justice system, with some, including the Change the Record coalition, the National Family Violence Prevention Legal Services and the National Aboriginal Community Controlled Health Organisation (NACCHO) pointing out that the problems were not confined to one Australian Territory, and the Commission should lead to a national examination of both the conditions of juvenile detention and the factors playing into the unacceptably high number of Indigenous children and youth in prison.

George Brandis has confirmed his intention that the Royal Commission will be confined to the NT, with “terms of reference sufficiently wide and sufficiently penetrating to get to the bottom of the conduct that was revealed … and the broader question of the extent to which it is systemic conduct in the Northern Territory system…”

Speaking on ABC radio last night, Human Rights Commissioner, Gillian Triggs, proposed a model for a wider inquiry, in which a Royal Commission could respond quickly to the issues at the Don Dale facility and in the Northern Territory, then move to a second phase, “which would be a national inquiry that would get a better sense of just of how diverse the practices are across Australia as a whole”.

There is much support for the Royal Commission to encompass a national brief, with the Greens launching a petition today, to extend its remit to all children in prison, including immigration detention. While the Prime Minister reiterated today that it is not his intention to broaden the inquiry, it seems likely that the Commission’s reach will continue to be debated in days to come.

What will be needed for the Royal Commission be effective?

The events at Don Dale are a reminder that, 25 years after the Royal Commission into Aboriginal Deaths in Custody, many of the recommendations have not been implemented and young people are still being harmed by the prison system. The Prime Minister has assured us that the Commission will be timely, but its findings will be shaped by the questions it asks.

The Labor party has flagged its interest in helping to shape the Commission, with Senator Patrick Dodson telling ABC AM that he hoped the opposition would be consulted because the matter, “requires bipartisanship in order to give us some confidence that we’re not just putting this back in the hands of the political people who are actually running both states, the Commonwealth and the Territory”.

Importantly, other organisations, including a coalition of NT Aboriginal organisations and Change the Record and Miwatj Health, have emphasised the need for immediate consultation with Indigenous health and community leaders, and the youth justice sector, in developing the terms of reference, and that the Government commit to funding and implementing the Commission’s recommendations.

What is the culpability, and what should be the role, of the NT government?

The then NT Minister for Corrections, John Elferink, and NT chief minister, Adam Giles, denied specific knowledge of the abuse of children at Don Dale Detention Centre, prior to seeing Monday night’s Four Corners footage. Giles has removed Elferink from the portfolio, taking it over himself, but retaining him as Attorney-General and minister for children, families, justice, disability and mental health.

Both men’s ignorance is difficult to understand, given that the NT Children’s Commissioner had furnished the Government with a report on the problems at Don Dale in August last year, some of the details of which were highlighted in this Croakey #JustJustice article, and which were reported elsewhere in the national and NT media.

Former chief justice of the Family Court of Australia, Alastair Nicholson, said yesterday that the NT Government should play no part in the Royal Commission because it was  “part of the problem,”  and will “act as a brake on the freedom of the commission to inquire into what it ought to be inquiring into”.

A press release from a coalition of six Northern Territory Aboriginal organisations went further. The group reiterated calls for the NT Government to be excluded from the Commission’s process and for local Indigenous organisations to be involved in developing the terms of reference, and also called called for the federal Parliament to step in to dissolve the NT Government, with spokesperson John Paterson from Aboriginal Medical Services Alliance, Northern Territory saying,

“Any government that enacts policies designed to harm children and enables a culture of brutalisation and cover-ups, surrenders its right to govern.”

These sentiments have been echoed by others on social media and on the front cover of today’s NT News.

NT News 27/07/16
NT News 27/07/16

What should happen now, and what else should happen in the longer term?

However quickly it is begun, the Royal Commission will take time to implement change, and it is clear that some things need to happen immediately, especially for the sake of children currently held in juvenile detention.

The Australian Bar association came up with the following list for a start:

  • Immediately commit to building a fit for purpose youth detention facility in the Northern Territory which is to be staffed by appropriately trained personnel.
  • Put in place diversion and education programs to prevent youth coming into contact with the justice system in the first place.
  • Provide all detainees with access to rehabilitation and education programs to minimise the risk of re-offending and to assist with reintegration back into society.
  • Immediately suspend the use of solitary confinement, spit-hoods and mechanical restraints.

The AMA has repeated calls for COAG to introduce a Close the Gap justice target. Others, including the Change the Record Coalition and Amnesty International, have called upon the Australian Government to immediately ratify the Optional Protocol to the Convention Against Torture (OPCAT), which Australia signed in 2009, but has never ratified: Amnesty has collected more than 4000 messages in the past 24 hours, asking the Prime Minister to do so.

The Royal Commission needs to do its work, but what happens in the longer term as a result of our collective “wake-up call” will define us, and make or break us as a nation.

There is a vast wealth of wisdom and knowledge about the solutions to Aboriginal and Torres Strait Islander Youth incarceration, the best of it coming from Indigenous peoples and organisations. Croakey alone, in just over a year, has collected more than 60 articles in the #JustJustice series, which focuses on stories of success, such as Justice Reinvestment, connection to country, community and culture, improvements in prison health and welfare and, in all things, Indigenous leadership.

As recently as June this year, in the historic, pre-election Redfern Statement (to which the federal government has made no response), Aboriginal and Torres Strait Islander organisations have called for justice targets and funding for a range of strategies to reduce incarceration rates.

Summer May Flinlay, who has launched and championed #JustJustice, and is the Public Health Association of Australia Aboriginal and Torres Strait Islander SIG Co-Convener, writes,

I am upset, horrified and disgusted. The children in Don Dale and other juvenile justice centres are some of the most vulnerable in Australia.

It is outrageous to think that after the report by the NT Children’s Commissioner last year that anyone with any responsibility for these children can be blissfully unaware.

As a country we have some soul searching to do about our wilful blindness to the treatment of the children who need us the most. We must push for alternatives such as Justice Reinvestment which aims to help kids stay out of detention. We need to hold all governments accountable for ensuring that each and every child in Australia is treated with dignity and respect.

We need to make sure that the Royal Commission recommendations aren’t put in the too hard basket and implemented because our children are priceless.

The Royal Commission ToR should be national, not just focused on Don Dale.”

The terrible images we saw on Monday night have provided us with a rare moment of clarity, when we can all agree that it is time to end the scourge of young Aboriginal and Torres Strait Islander people being robbed of their liberty, dignity and opportunity by an unfair and heavy handed justice system, and by the circumstances by which they arrive there in the first place.

Calls for reform have been falling on deaf ears for too long.

It is, and should be, a moment of national shame, and of urgency to put things right in the NT and wider juvenile justice system. It is also time to use the knowledge and leadership of the Indigenous and other organisations who have been working to expose and solve the problem of over-incarceration of young Aboriginal and Torres Strait Islander people.

The draft terms of reference for the Royal Commission are due to be tabled in the next few days. Now that the Government has been made to take notice we should accept nothing less from them than a commitment to learn what is needed, and do what it takes, to keep kids out of jail.


Statement excerpts, 26/07/2016

NSW Aboriginal Land Council

“Given the shameful over-representation of young Aboriginal people in detention throughout Australia, the Federal Government must consider broadening its investigations to other States and Territories.

Aboriginal families need reassurances that people’s basic human rights are being respected in juvenile justice centres in the Northern Territory, New South Wales and other States and Territories.

Unfortunately, Aboriginal people have little faith in the justice system given the inability of governments to tackle increasing imprisonment rates in the 25 years since the Royal Commission into Aboriginal Deaths in Custody.

It’s time for governments to work with Aboriginal communities and organisations on alternatives to detention based on education, training, parole support, rehabilitation and community-driven approaches.”

NACCHO

“Whilst NACCHO welcomes the swift action of Prime Minister Turnbull, it also hopes that the Royal Commission proceeds with the same immediacy, and delivers answers in a timely fashion.”

…  This Royal Commission should be the starting point of a wider inquiry that looks at the impacts of detention on mental health, and the devastating suicide rate of the Aboriginal and Torres Strait Island people, particularly young people.

… We need a system that justice system that is best practice and culturally safe for Aboriginal children faced with detention.

Young people should not be risking their lives in detention, and the price they pay for their crimes should not be life long.”

AMA

“A Royal Commission will put the spotlight on juvenile justice, and related health issues, and ensure that the inhumane treatment exposed by Four Corners never occurs in Australia again.

The AMA Indigenous Health Report Card 2015 – Treating the high rates of imprisonment of Aboriginal and Torres Strait Islander peoples as a symptom of the health gap: an integrated approach to both – called on the Australian Government to set a target for closing the gap in the rates of Aboriginal and Torres Strait Islander imprisonment.

“Our Report Card showed clearly that Aboriginal and Torres Strait Islander people are failed by the health and social justice systems in Australia, and the victims are too often young people and teenagers.”

Australian Bar Association

“ Whilst an independent inquiry into the systemic abuse at the Don Dale centre is necessary, The ABA is calling for immediate action to address the following key issues:

  • Immediately commit to building a fit for purpose youth detention facility in the Northern Territory which is to be staffed by appropriately trained personnel.
  • Put in place diversion and education programs to prevent youth coming into contact with the justice system in the first place.
  • Provide all detainees with access to rehabilitation and education programs to minimise the risk of re-offending and to assist with reintegration back into society.
  • Immediately suspend the use of solitary confinement, spit-hoods and mechanical restraints.”

The Change the Record Coalition

“Prime Minister Turnbull’s commitment to establish a Royal Commission to expose the horrific incidences of abuse at Don Dale is a welcome first step. It is vital that that those responsible are held to account and that systemic failings are documented and reported back on quickly.

It is also imperative that the terms of reference for the Royal Commission are developed in consultation with the youth justice sector, and that the Federal Government commits to implement all of the recommendations.

The Royal Commission should examine whether these incidences of abuse are more widespread throughout the NT, and the reasons behind the over-representation of Aboriginal and Torres Strait Islander young people in juvenile detention facilities across the country. Nationally, Aboriginal and Torres Strait Islander young people are 24 times more likely to be imprisoned than their non-Indigenous youth.

The CTR Coalition is also calling for the Australian Government to immediately ratify the Optional Protocol to the Convention Against Torture (OPCAT). This would ensure independent monitoring of all places of detention – including youth detention facilities.

We shouldn’t be waiting until an inquiry is completed to take steps to prevent to abuse of vulnerable children. OPCAT would provide an important safeguard to protect to the human rights of children, and the Federal Government should act to ratify OPCAT without delay

The Change the Record Campaign has developed a Blueprint for Change, which provides a critical roadmap for Government to reduce imprisonment and violence rates.”

National Family Violence Prevention Legal Services

“Given the disproportionate representation of Aboriginal and Torres Strait Islander youth within the youth justice system, the establishment of the Royal Commission’s Terms of Reference should rely heavily upon engagement with and involvement of Aboriginal and Torres Strait Islander organisations.

The National FVPLS Forum believes the Royal Commission announced today is an initial first step for a broader investigation across all Australian jurisdictions into the treatment of children in juvenile detention and the underlying factors driving engagement with the justice system.

It is imperative a broader inquiry examines the structural disadvantage experienced by Aboriginal and Torres Strait Islander children. Particular consideration should be given to interrelation between family violence, child removal and incarceration. Governments of Australia have to shift from a punitive to a therapeutic approach within the youth justice system.”

Australian Council of Social Services (ACOSS)

“ACOSS welcomes the swift action of the Prime Minister in supporting a Royal Commission and urge that he consults with community leaders and stakeholders on the Terms of Reference as a first priority.

In the Northern Territory 96% of those in juvenile detention are Aboriginal or Torres Strait Islander. Nationally, Aboriginal and Torres Strait Islander people make up over 54% of young people in detention.

ACOSS endorses the calls for action by the Northern Territory Council of Social Service for immediate action that must occur in the Northern Territory, the call for a Royal Commission, and the call by the Change the Record campaign for Federal leadership to reduce the over-representation of Aboriginal and Torres Strait Islander people in the justice system and end abuse and mistreatment of young people, including by taking immediate steps to:

  • Develop terms of reference for the Royal Commission in partnership with Aboriginal and Torres Strait Islander and youth organisations;
  • Set targets to reduce the over-representation of Aboriginal and Torres Strait Islander people in the justice system and to reduce violence against Aboriginal and Torres Strait Islander people; and
  • Immediately ratify the Optional Protocol for the Convention Against Torture to ensure independent monitoring of all places of detention.”

Miwatj Health

Nhulunbuy, East Arnhem Land, NT

“ Health institutions have shared with prisons the often deserved mistrust of many Indigenous people who viewed them as another instance of institutionalised racism. To address this, in the 1970s Aboriginal leadership developed the Aboriginal Community Controlled Health Sector. The relevant lessons learned from the past four decades of Aboriginal Community Controlled Health Services are:

  • Robust and sustainable Indigenous governance: This can be structured in different ways but needs to be underpinned by accountability to Aboriginal leadership and oversight within culturally appropriate frameworks.
  • High levels of Aboriginal employment: The vast majority of the prison population are Indigenous. A significant Indigenous workforce at all levels of the system, from policymakers to frontline staff, is required to reflect the needs of the population it serves.

Aboriginal cultural frameworks embedded in governance and operational structures ensure that Indigenous and non-Indigenous staff share the same values and objectives. This not only will help keep children safe in prison but also will engage in social transformation providing real jobs, with real wages and therefore a reason for kids to stay in school, working upstream to prevent incarceration in the first place.

Yolŋu leadership has demonstrated the effectiveness of this model in East Arnhem Land with improved access to services and better health outcomes within a decade under Miwatj community control. Therefore, we call upon the Australian and Northern Territory Governments to make a real commitment to hold correctional services accountable to Aboriginal communities. Only through ongoing and real commitment to Aboriginal community controlled services more broadly -health, education, legal services- will we advance towards reducing the scourge of Aboriginal incarceration rates.”

NT Aboriginal organisations (AMSANT, Danila Dilba, NAAJA, Central Land Council, CAALAS)

A coalition of Northern Territory Aboriginal organisations today called for the federal Parliament to step in to dissolve the NT Government, following the exposure of the NT Government’s barbaric abuse of children in detention.

Any government that enacts policies designed to harm children and enables a culture of brutalisation and cover-ups, surrenders its right to govern.

We also urge the Prime Minister to ensure the NT Government plays no role in the development or oversight of the Royal Commission.

It must be entirely independent of the NT Government, and chaired by an appropriate independent expert and must have Aboriginal representation from the NT. Local organisations and those working in this sector must have input into the terms of reference.

The terms of reference must:
• Encompass the entire NT youth justice system, not just issues relating to detention facilities;
• Examine all previous enquiries relating to youth justice in the NT for cover ups and uncover why the recommendations were not implemented.
• Not limit how far into the past the Commission can inquire.

We also call for further immediate interim actions:

• The Commonwealth must appoint an alternative provider of youth detention and child protection/out of home care for the NT. The NT Government cannot continue to deliver these services while our kids remain at risk.

• The youth currently on remand should also be removed from the Darwin and Alice Springs detention facilities immediately and placed in appropriate secure accommodation.
• The office of the NT Children’s Commissioner must be appropriately and adequately resourced to perform her statutory duties.

That harm is being done to our children and our community in our name is unacceptable. Those responsible, including ministers, advisers, bureaucrats and corrections employees need to be held to account.

The NT Government has led a concerted and sustained campaign demonising young people and to pass draconian laws inconsistent with recommendations made by successive inquiries, including those of the NT Children’s Commissioner.

We are seeking urgent discussions with the Prime Minister to ensure this Royal Commission actually meets the needs of those most affected, and ultimately creates the momentum for reform of the entire youth justice system in the NT.”


Crowdfunding thanks

You can read more than 60 #JustJustice articles published to date here.

Croakey acknowledges and thanks all those who donated to support #JustJustice (see their names here). We also thank and acknowledge our premium sponsors, the Jesuit Social Services, and Frank Meany of One Vision.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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