Australia's Morality Play 2017

12 Land Rights News • Northern Edition July 2017 • www.nlc.org.au Australia’s Morality Play 2017 John B Lawrence SC* n June 2017, the Royal Commission points not just to the obvious suspects Dale graphically illustrates that the night, and… that was my thought, you into the Protection and Detention of – the untrained, casual Youth Justice Department of Corrections, and others know, 10 years ago this would not have happened. So I think it is part of Children in the NT was in full swing. Officers (YJO) and Corrections generally who knew all about it, had descended to this general moral decay. Australia’s… Called by the Prime Minister of Australia – but more, much more. It has revealed a moral depth that you would not have in a really bad way here, and I don’t on 26 July 2016 following the ABC Four a Youth Detention System that was and thought possible even 10 years ago. In know how you return it to a mature, Corners screening of ‘Australia’s Shame’, still is operating in a deliberately punitive many ways that is the essence of what sophisticated, civil society” it had completed the evidence in relation and at times grossly inhumane way. this Royal Commission has discovered as Although we’ve just celebrated the to Youth Detention and was moving into regards how this could occur. The essence of the Inquiry is to now 25th anniversary of Mabo and the its second component, namely Child find out how this can happen in 21st Australia has lost its way, the Northern extinguishment of terra nullius as a legal Protection. century Australia, a developed country Territory has lost its way. The individuals concept, the psychological and human Much had been discovered, most of it which, in competition with Spain, is who make these decisions, knowingly reality of Aboriginal people being of less bad, and worse than what Four Corners presently applying for a seat on the and deliberately, have lost their way as worth still clearly exists. had revealed. When publishing the Royal United Nations Human Rights Council. far as being responsible, moral, decent The evidence has clearly established Commission’s Interim Report dated 31 That question is largely answered by human beings. that not only was this happening to March 2017, Commissioner Margaret the systemic nature of the inadequacies. It is the writer’s view that if they were Aboriginal children in the NT at the White said: Responsibility for the system’s shame non-Indigenous, such inhumanity hands of Don Dale staff, it was all being can be traced all the way to the t op. “What the Commission has heard over would not be allowed to occur. In done knowingly – by the Superintendent Everyone, including Corrections the last 8 months, and particularly other words, it’s racism. Pat Anderson, of Don Dale Russell Caldwell, the over the last 3 weeks in this Courtroom Minister John Elferink, Commissioner presently Co-chair of the Referendum Executive Director of Youth Justice and in Alice Springs, is that the system for Corrections Ken Middlebrook, of youth detention in the Northern Executive Director of Youth Justice Salli Territory has failed and, we think, is Cohen and the staff at Don Dale knew still failing [writer’s emphasis]. At every level, we have seen that a detention of the atrocious conditions that the system that focuses on punitive, not children were being indefinitely detained rehabilitative, measures, fails our young in, and the inadequacy of staff training people”. for those tasked with looking after them. It was during Ms Cohen’s reign that the The Interim Report made several other Behaviour Management Unit (BMU) telling observations: at Don Dale was used to hold children 1. the Youth Detention System is in isolation, in cruel and medieval likely to leave many children and conditions for extensive periods. young people more damaged than Between 4 and 21 August 2014, six when they entered; children were kept in the BMU which 2. the Youth Detention facilities are ultimately lead to their gassing on 21 harsh, bleak and not in keeping August. It was that incident which led with modern standards. They are to the NT Children’s Commissioner’s punitive, not rehabilitative; and report published in August 2015. That 3. 94% of children in detention report clearly details the unbelievable in the Northern Territory are conditions that Aboriginal children were Aboriginal, and therefore specific being kept in at Don Dale during that consideration must apply to time. Aboriginal children. Ms Cohen gave evidence that the plan Caption Amidst this, while the Royal was to hold the children at Don Dale Commission was sitting in Darwin in until the Berrimah Adult Jail was ready, Council, Chair of the Lowitja Institute Salli Cohen, the Commissioner for June 2017, the conduct of an NT Judge namely another six months. Further, and former President of the North Corrections Mr Middlebrook, and the sitting in the Youth Justice Court in no alternative “high security” section Australian Aboriginal Legal Aid Service Minister responsible Mr Elferink. They Tennant Creek dealing with a 13 year had been identified for the interim. The (NAAJA) gave this evidence to the Royal all gave evidence admitting this, and old Aboriginal boy received severe public BMU was the only option, and they Commission: these people were the legal guardians of criticism. That coincidence revealed were there indefinitely. “There’s this psychological barrier to the children, responsible for their welfare a Youth Justice System riddled with When Minister Elferink was questioned any kind of acceptance that Aboriginal and owing them a duty of care. They all systemic problems and needing radical by the media in 2014 about the people are not… subhuman; we are, in knew that, and yet they did this to these repair, if not replacement. conditions in the BMU (their full extent fact, human beings and this is our place children. unknown to the media at the time) he and this is our country”. Royal Commission proudly defended them by saying that But more. All those children had lawyers, And, when asked to suggest an either from the Northern Territory Legal As you would expect with a Royal the children in question were “The worst explanation for the children being Aid Commission (NTLAC) or the North Commission tasked to investigate of the worst”. Just desserts for them. treated like this in 2014, she said: Australian Aboriginal Justice Agency systemic problems, the whole Youth The conditions suffered by these young (NAAJA). Not only the jailors and their Justice System and its players have been “You know, 10 years ago when we did Aboriginal boys were way beyond what the ‘Little Children are Sacred’ (report) masters knew: so did the defence lawyers placed under thorough scrutiny and any serial killer, rapist or paedophile it was inconceivable that that might who represented these children. Further, few have emerged looking good. The would experience in an adult prison happen here, even here in the Northern much of the detail of the conditions at evidence has revealed a crisis-ridden, Territory. I watched [the Four Corners anywhere in Australia. This situation Don Dale was conveyed by these lawyers dysfunctional “system”. The evidence occurring in August 2014 in Don program], like most of Australia that July 2017 • www.nlc.org.au Land Rights News • Northern Edition 13 Image: Chips Mackinolty to Magistrates sitting in the Youth Justice in which these children were being this. That action, brought on by AD “cooperation” and “collaboration” with Court who were making decisions about indefinitely held in the BMU. So much fighting back, was effectively the end the Department of Corrections – a bail and sentencing. for two wrongs not making a right! of the BMU. A 14 year old’s protest “productive relationship”. Well, the end This type of thinking and, dare I say product of this “productive relationship” The legal system’s awareness is illustrated brought to an end an infamy that no one it, “logic”, graphically illustrates the was a Youth Detention System that by the evidence of Mr Jonathon Hunyor, else had seemed able to end. That says it ethical sewer which the legal system had treated Aboriginal children worse than principal lawyer at NAAJA in 2014, that all really. descended into. animals, including gassing, restraint he and other NAAJA staff were actually On all the evidence, including that of chairs and being cooped up in the BMU shown the BMU at full capacity on 11 The arranged meeting between Ms Cohen about there having been for 16 days at a time. Aboriginal children August 2014. Corrections officials and NAAJA staff no alternative to the BMU at Don were abandoned by a legal system, was held at Don Dale on 11 August Dale, it is clear that, but for AD’s The reason for the visit in itself speaks which seemingly included their legal 2014, after which Mr Hunyor and actions, the detainees in the BMU volumes. It was the idea of Executive representatives. others were shown the now infamous Director Ms Cohen. Her rationale would have remained there indefinitely BMU. Mr Hunyor gave evidence All of this evidence was bad enough, appears logical, but reveals itself as – six Aboriginal children, all legally that once taken to the BMU, he was but there was worse to come. In my startling on analysis. By that time, the represented but effectively abandoned in shocked. He said it felt like a dungeon. opinion, the most dispiriting, negative Government had announced its decision conditions in which you wouldn’t place It was dark, dank, smelt of urine and and chilling evidence in the whole of to close Don Dale and reopen the an animal.

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