TRANSCRIPT OF PROCEEDINGS · PDF fileTHE HONOURABLE M. WHITE AO, Commissioner MR M. GOODA, Commissioner ... And then lastly, just around our total overall number of youth justice,

.ROYAL COMMISSION 30.6.17 P-5377

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TRANSCRIPT OF PROCEEDINGS

O/N H-784710

THE HONOURABLE M. WHITE AO, Commissioner

MR M. GOODA, Commissioner

IN THE MATTER OF A ROYAL COMMISSION INTO

THE CHILD PROTECTION AND YOUTH DETENTION

SYSTEMS OF THE NORTHERN TERRITORY

DARWIN

9.15 AM, FRIDAY, 30 JUNE 2017

Continued from 29.6.17

DAY 53

MR P.J. CALLAGHAN SC appears with MR P. MORRISSEY SC, MR T. McAVOY

SC, MR B. DIGHTON, MS V. BOSNJAK, MR T. GOODWIN, MS S. McGEE and MS

R. RODGER as Counsel Assisting

MS S. BROWNHILL appears with MR G. O’MAHONEY and MR C. JACOBI for the

Northern Territory of Australia

DR P. DWYER appears for the North Australian Aboriginal Justice Agency

MS F. GRAHAM appears for the Central Australian Aboriginal Legal Aid Service

MR A.R. HARRIS QC appears for John Elferink

MR LAWRENCE appears for the Danila Dilba Health Service

.ROYAL COMMISSION 30.6.17 P-5378 T. STONE


MS BOSNJAK: Commissioners, I call Tamara Stone.

<TAMARA STONE, CALLED [9.16 am]

5

COMMISSIONER WHITE: Thank you. Dr Stone, it’s Commissioner White here

and next to me is Commissioner Gooda. Are you able to see and hear us?

MS STONE: I can now, yes, and it’s not Dr Stone. It’s just Tamara Stone. 10

COMMISSIONER WHITE: Well, it’s better to err - - -?--- .....

..... than the other way. Thank you very much for accepting our invitation to assist us

in the work of this Royal Commission, Ms Stone. May I apologise for keeping you 15

waiting for the start of this hearing today. We look forward to hearing what you

have to tell us about the Ontario experience that looks to be very interesting. So I

will hand you over to counsel.

MS GRAHAM: Ms Stone, you have prepared a précis for this Commission dated 20

16 June 2017 and signed by you; is that correct?---That is correct.

MS BOSNJAK: Commissioners, I tender that statement and two annexures to that

précis.

25

COMMISSIONER WHITE: That is exhibit 646, thank you.

EXHIBIT #646 PRÉCIS OF EVIDENCE OF TAMARA STONE

30

MS BOSNJAK: In your precis, you identify some changes that were made in

Canada since about 2003. Are you able to explain to the Commissioners what

prompted those changes and what were some of the features that those changes

sought to implement in Canada?---Absolutely. Okay. So – absolutely, and I would 35

like to just really speak specific to Ontario. Is that possible?

COMMISSIONER WHITE: It is indeed?---Because I know that’s where my area of

expertise is. I can’t speak broadly around – across Canada, but I suspect they’ve

experienced a similar story. 40

MS BOSNJAK: Yes, certainly?---Okay. And – okay. So in terms of Ontario,

really, I think the key driver for us is when our Youth Criminal Justice Act came into

effect. Prior to that time, Ontario youth justice services were primarily custody

focused. So I can walk a little bit through just in terms of what we have done and 45

give a bit of an overview ..... but what we have done is we have built a dedicated



youth justice system, but integrating services within the children’s services, and fully

aligning services with the principles and provisions of the new legislation that came

into effect 1 April 2003.

COMMISSIONER WHITE: I understand Ms Stone, from your précis, the 5

overarching legislation was Canada-wide legislation? That was federal?---Yes, it

was.

Yes. And was it then?---Yes, it’s federal legislation.

10

I was just going to ask you: and did it leave each province the responsibility of

implementing it?---Yes. So it’s tough to explain in terms of some – we have

provincial enabling legislation, but the federal legislation was broadly across our ten

provinces, three territories for implementation, and it really set the direction in

Canada about how young people who come in conflict with the law, how they would 15

be managed and diverted and what provisions and principles needed to be

considered.

MS BOSNJAK: Just on that, did that Federal legislation outline, for example, the

use of custody and diversionary schemes?---Yes. In fact, it was highly promoted. 20

There was many principles and provisions but I would say, from a policy

perspective, it redefined Canadian youth justice policy in many ways. One that

young people would be managed through a criminal system, the youth who were

aged 12 to 17 years, separate from that of adults which was really, really important,

and it increased the use of community based programs to prevent and divert youth 25

from contact with the law. Thirdly, I would say it called for the reduced use of

custody emphasising, that it was reserved for the most – as it is serious intervention,

reserved largely for those most serious offences, and then also it promoted the

reintegration and rehabilitation of youth to reduce reoffending and contribute to

public safety. So those were key shifts, but it was really terms of our shift from the 30

previous legislation, the Young Offenders Act, this was a clear change in direction.

Thank you. Just one moment. I understand we might have had somebody from New

Zealand join our webcast and may have dialled in a bit early. If we can ask that

person from New Zealand. 35

COMMISSIONER WHITE: That is Judge Becroft.

MS BOSNJAK: Judge Becroft, welcome. You’re a little early for the Commission.

40

JUDGE BECROFT: Welcome. I’m happy to observe just to observe, if you wish,

or do you want me to – I can tell you this: the connection is tenuous from the far

south of the world, so if you lose me it could be forever. But I’m happy to wait, but

if you want me off, I will go.

45



COMMISSIONER WHITE: Our technicians suggest, judge, that it might be a good

idea if you disconnect with us and we will certainly be confident we can get you

again. You are not that far away.

JUDGE BECROFT: Alright. Goodbye, and I wait until we hear from you. 5

MS BOSNJAK: Thank you, Judge.

COMMISSIONER WHITE: Thank you. That was Judge Becroft from New

Zealand dropping in for a moment, Ms Stone?---Nice. 10

MS BOSNJAK: Ms Stone, you were just identifying some of the changes that were

implemented in Ontario. It might be of assistance to bring up annexure 2 to your

précis, which provides a statistical overview of what some – the position in custody

was in 2003/2004 and 2015/16. One of those things that we can see is the custody 15

levels have markedly reduced between 2003/4 and 2015 to ’16. What were some of

the principle drivers in the reduction of the custody rates?---Okay. So that – there’s a

lot of – I was just going to say ..... if I can just step back ..... is that it provided us

with new sentencing options and I haven’t quite walked through what they are, but

they were largely community based with an emphasis to managing the young people, 20

wherever possible, in the community. So that was a big push in terms of that

legislative driver because it allowed us to have some additional options. Like, there

was new sentences – I will just briefly go – there was an intensive support and

supervision order where maybe a young person would have been given custody

historically, Ontario chose to approach that in a clinical way. So if young people had 25

mental health needs we were trying to divert them and keep them in the community.

There was the implementation of new sentences like attendance orders where a

young people would be required to a program at specified times but it was really

guided around if they, for example, needed anger management counselling they

could attend a non-residential program for that specific ..... two other ones I will just 30

briefly talk about, they had a – introduced a deferred supervision and custody order

and the big piece on that was it would be appropriate where a young person – where

they were considering a custody sentence – that they would still be provided an

opportunity to remain in the community with strict conditions. And if they were to

breach the conditions they were immediately brought back to court to answer a 35

breach. But it really did look at a young person who would have been appropriate

for a custody sentence to have that community option. And then the last one, which

is not an extensive sentence but in terms of rehabilitative custody and supervision

orders, and it really is to bring intensive programming for those who have committed

the most serious violent offences such as murder, attempted murder, manslaughter. 40

The only other ..... if I can chart – and I know we have had prior discussions but, just

for the record, they also introduced – which was significant – is our custody

sentences came automatically with a community supervision portion. So that really

emphasised the need to reintegrate young people from custody placements to the

community and that’s roughly where ..... in the custody – their custody sentences 45

were two-thirds, they get released for the last third. If there are issues they can be

returned back through a breach. However, again, the emphasis is that they’re



reintegrated in a planned purposeful way. So now, I just wanted to flag that, because

without the ability to look at additional new sentence options, that were largely

community-based, we wouldn’t have had or been empowered to do what we did. So

as you will see from the précis, we’ve shifted our system from predominantly a

custody focused system to one that offers a broad range of community based options. 5

And so I will share some statistics in addition to what you may have. And we largely

talk, between 2003 and 2015, but the youth crime rate decreased by 46 per cent. And

so I want to acknowledge the good work of justice partners, in terms of our judiciary,

our police services in Ontario and obviously the ministries overseeing them. But that

was a significant decrease. In addition, between 2003/03, and that’s how we term 10

our fiscal years, and 2015/16, there was an 83 per cent decrease in the number of

youth custody admissions. So from numbers that’s 2452 to 421, and we experienced

a 46 per cent decrease in the number of youth detention admissions. Now I will say,

as I should, that these statistics used to be represented multiple times so in terms of

our database, I just wanted to make sure that that point was clear: that young people 15

could be at different points in our system a number of times, for multiple placements.

And then lastly, just around our total overall number of youth justice, between

2005/06 and 2015/16 the total number of youth served in youth justice, along our

continuum, decreased by 33 per cent. So that was from 42,000 youth plus to 28,000

youth. So those are significant stats for us and I have shared some additional 20

statistical information about the raw data, I don’t know if you are sharing it on the

screen, just in terms of the changes we made around our custody system in terms of

the reduction of use of custody. The removal of the large bed capacity provided us

with an opportunity to reinvest in our community based alternatives. So we really

shifted our system from custody focused to community based, and one of the 25

statistics we share is nine out of 10 youth in our current system are receiving

community services. Again, that number could reflect young people at different

points in the system, but nine out of 10 is the reference we make. So those, for us,

are compelling statistics. I just wanted to stop and see if you had any questions.

30

I do. One of the issues that you mention is the use of – the keeping of young people

in community rather than custody and you mentioned with the reduction in the

number of beds, you’ve been able to redirect that money into the community. Has

that required a need for building capacity within the community to accommodate

those young people and provide services to them?---It’s a fantastic question, and yes, 35

and this didn’t happen overnight. So if I can, I’m just going to see – so part of what

we did in terms of reshaping our system, we didn’t do it just by ourselves with only

..... we had extensive consultation with the community, with service providers, with

justice partners, and then non-traditional justice partners, such as education, health,

child welfare, we wanted to hear from everybody of where to from here in terms of 40

planning. In changing our system, we experienced a number of challenges, which

was reconfiguring the system and then also shifting staff, our frontline staff’s focus

from sentenced youth that are largely custody to community. And so we have done

extensive cultural shifts in changes and investments in training to ensure that staff at

the front line have the capacity to undertake the work they need to, and then also 45

reshaping from an evidence informed approach. So I would say that it really was

extensive consultation, engagement in terms of these opportunities. Our



reinvestment dollar number, I think, was just upwards of – my goodness,

unfortunately, I’ve got paperwork all over, but in March 2009, the reduced custody

capacity and reinvested savings was 28.7 million. And it allowed us to open up and

expand 188 new alternatives to custody. So part of what I wanted to say, as well as

that, in terms of our current system and where we are today, we reduce, we closed 5

eight secure custody facilities, which totalled 647 beds, and we closed 69 open

custody detention facilities, with a total of 690 beds. So it is quite extensive.

Largely, that was a 58 per cent reduction in secure, 68 per cent reduction for our

open stats, and I know there was interest potentially of where are we today, because a

lot of our stats are referenced from 15/16, so we are still telling our story and pulling 10

together where we are today. But, as an example in our system today, our open

custody capacity is 328 beds and we have 124 youth. In our secure system we have

418 beds and today we had 201 youth in them. So that’s – you know, we are still –

our utilisation rates are very .....

15

Now, the process that you are describing is one that occurs over a long period of

time, indeed since 2004/04. How have you been able to achieve long-term goals and

maintain this reform process over the long period? What has been important in

staying on track for long-term goals?---Great question. What I will say is that, in our

Ontario story and it may be referenced in the précis, is we came – all youth justice 20

services came under one ministry umbrella. Having two separate systems – and that

was our history: prior to 2004 they were separated by separate ministries. Younger

youth were with a children’s ministry, the older youth, 16 and 17 years of age at the

time of their offence, were overseen by a ministry that also oversaw adult services

and operations. So having all the youth under one umbrella provided us with an 25

incredible opportunity to really focus on that continuum of youth in terms of what

their needs are and from programming to risk need, assessment, evaluation, case

management planning. So it really provided us with an opportunity on that front.

Having one ministry, we had one decision-maker, so in terms of shifting and

repositioning the system, we within that minister industry were able to provide the 30

leadership required to undertake along – as you said, a very staged process in terms

of transformation.

And in terms of the programs that have been introduced over this period of time,

have there been many evaluations or any records to try and identify the success or 35

otherwise of some of these programs and how important is evaluation?---I would say,

you know evaluation for us is critical. However, we’ve had – we have learned and

had some bumps along the way in terms of our lessons. So in the formative years, at

that time, we were basing a lot of the work we were undertaking in terms of what did

research tell us. So you will hear me say that – you know, in terms one of the lessons 40

learned, I wanted to convey, is face the new directions in the transformation in what

works, literature and research. So we had, oftentimes, evidence informed

approaches, but sometimes there’s promising practices and those that are research

based. We undertook evaluations, but we started not knowing where the full

opportunities rested with piloting different programs. So through community 45

consultation, for example our attendance centres, that was a new sentence option.

We haven’t provided it in Ontario prior. We had many agencies embrace and start



that adventure, and what I will do is see if I can pull up some of the information. So

we actually started with – it was first piloted in four communities in 2004 and today

we have 32 attendance centres, including two Indigenous sites. Attendance centres,

as an example, they offer life skills, anger management, employment support,

addictions counselling, but we really don’t know necessarily in the formative years. 5

So we had some lead agencies come forward to build programming and we do

evaluations. We do hear from young people and their families in terms of the

feedback they want to provide us about their experience, but in terms of evidence

informed we have effective programming initiatives underway that are looking at all

our programs and looking at how we continually need to change and strengthen. But 10

we’ve had bumps along the way, and I remember at one point we had evaluations

undertaken by our ministry and, unfortunately, they didn’t yield good information for

us because there wasn’t a full understanding, I think, of what the programming intent

was. The only ..... in terms of evaluation is metrics. It is been important for us to tell

a story, to look at the difference and the shifts in Ontario because we have been 15

measuring and data analytics have informed directions in where we’re going.

Just taking you back briefly to the custodial facilities that do exist in Ontario, there’s

reference to the open or secure custody facilities. Can you briefly identify what is

the difference between those facilities?---Right. For open custody – well, okay, so 20

we have two levels of custody. We say open and secure. And what it is, is the open

programs are largely – they have a lower degree of restraint. They’re often smaller

facilities in residential type settings, generally located in community and

neighbourhoods, so that the young people – by design, the expectation is that they’re

going to have regular programming access to the community. However, they are 25

serving a detention or a custody sentence within that residential setting. For our

secure custody, they tend to be larger – and I say more – larger structures with more

extensive static security, such as high fences, locked mechanisms, you know, much,

much secure in nature and by design. They tend to be larger as well, in terms of bed

capacity, and access to the community is highly restricted. 30

Just in terms of the number of youth who you might expect to find in a secure

custody facility, do you have an indication as to what that number would be

generally?---Well, I just shared it right now. So I think we are slightly above 40 per

cent in terms of what those numbers look like today. We have currently in our 35

secure system 201 youth and we have 418 beds, so just slightly under 50 per cent.

Would they be held in one secure custody facility or are there multiple custody

facilities?---That’s multiple, my apologies – my apologies. So the range in how

many per facility, it really is – it ranges across the province, and what we try to do 40

and what we have been doing, is ensuring that we have bed capacity in court

jurisdictions so that young people aren’t required to be so far from home if they’re

serving a sentence in a place of detention. Although we do have geography

challenges in Ontario, because Ontario – we are 13.9 million, I think from our 2016

stat, and it is quite an extensively large province. I think it’s the largest ..... 45

population density. But we have a very large northern geography where we have the

least population, but the largest distance, so we do have challenges in terms of trying



to keep the young people as close to home as possible. Often times they have to

leave their community to attend a facility. But we do have detention facilities in our

northern region.

Yes. You did talk about those who are in custody having access to community and 5

the neighbourhoods. For those youth who are from the more remote areas, what are

the ways in which you do seek to keep a connection those youth have to their

particular communities which might be quite a distance away?---It’s a wonderful

question. When it comes to family connection, we know the strength of family and

the impact it can have on young people, we want to facilitate as much as possible that 10

close connection. So where ever possible – I mean, we certainly promote phone calls

home, visits with family. Where it’s a long distance for family to travel we may

provide video conferencing ability. To keep those connections ..... connections or

Indigenous affiliation, wherever possible if they can be connected to representative

organisations where they currently are, we try to include that and foster that as well, 15

so that the young people have that sense of community even though they’re far away

from their home community. The other piece that I think is important, and we had

some discussion single case management model: our probation officers, when

they’re assigned to young people, they are assigned to them wherever they are. So if

the young person is in the community or the young person is in custody that one 20

single case manager stays with that young person in terms of planning, assessment,

evaluation, supervision, and so that connection to make sure even though there are

short stays in the community, they are ..... plan for their eventual release back to the

home community to provide reintegration and supports to make those linkages, so

..... no connection to the good work they’ve done. 25

COMMISSIONER WHITE: Ms Stone, can I ask you a question about staffing.

When you transitioned from having many more young people in a secure facility to a

more open and program-dominated system, was there any push back from staff who

were more used to working in a secure facility than in this different model?---That is 30

a fantastic question. We did have to do extensive training in terms of cultural shift.

So, for example, when we were looking at repositioning our system many of our

open custody facilities were given opportunities to profile. So some, for example,

may have been largely providing custody, then all of a sudden they were

repositioning themselves to be an attendance centre. And we spent intensive time 35

investing in staff, building staff capacity awareness and understanding. We also, if I

can say, we had significant cultural shifts between staff who worked with the older

aged youth coming into a system where we also had staff working with younger age

youth. The service approaches, what we ended up having to do – they were different

and, in harmonising our direction forward, we really had to focus on culture, and 40

what that direction was, and be really clear with expectations. So we shared some

documents in terms of our relationship custody approach and framework. That, by

design, was really Ontario’s way to say, “This is the expectation we have for anyone

working with young people in custody.” We also the have that single case

management model, which is very similar in terms of that professional relationship to 45

connect with youth, so we did have to reposition our entire system. It is one of what

I would describe as the challenges we experienced, because culturally we had



different perspectives in terms and how services should be delivered. Does that

respond?

It does, and it seems to be constant across the globe where there has been a fairly

significant shift in approach to these questions: everyone seemed to think that that 5

was a major challenge and it’s not surprising?---No. What I will say, if I can, just

internally where we had our directly ministry operated programs, wherever we could

in terms of engaging – and I talk broadly reintegration, community based, lots of

engagement with stakeholders, traditional, non-traditional, representative bodies,

internally at the ministry, in terms of the staff – because we operate six facilities as a 10

government, we operate our probation services. It’s mandated as ministry staff. We

spent extensive time engaging bargaining agent representatives, engaging staff, so

when we are harmonising our practices and policies we didn’t want staff to say, “We

went with that direction with that, you know, that reflects their policy not ours.” We

wanted – it was a creation agenda that we look at the best practices that both historic 15

places provided and move forward with one. But cultural change takes time and we

certainly did not do that overnight.

I think we understand that .....?--- Yes.

20

MS BOSNJAK: One of the things that you mentioned was the role of the probation

officer, in particular, for those who come from remote communities. What other

steps have you taken in terms of building the capacities of those remote communities

to divert or prevent young people from entering into the youth justice

system?---Okay. And in terms of the remote communities – I will describe as largely 25

are Indigenous youth. And I will say in Canada – I mean, it’s certainly – there’s lots

of coordination between the federal and the provincial initiatives and other goal is to

provide meaningful programming and resources in the community to increase

alternative interventions and reduce overrepresentation. So in many ways Ontario –

we still have lots of work to do so we are certainly not saying that we’ve got absolute 30

best practices, but we are certainly doing some great things, and I will share that. So

the legislation does express that requirement in terms of that specific to Indigenous

youth. So that’s important, in terms of a federal mandate: a message that where ever

possible we have to work collaboratively with our Indigenous partners to ensure that

the programming is responsive to the young person’s needs. So for the engagement 35

we had in 2007, so again early in our transformation, we engaged Indigenous service

providers. So again, in our geography in Ontario, a very vast geography, but we

went out and spoke to communities directly to find out what did they feel their needs

were and, as a result, we expanded programming in Indigenous communities. We

created 45 community based programs specifically targeted for Indigenous youth, 40

many of which are provided by Indigenous organisations. So 15 of the programs

focuses on diversion, nine on community sentences, and 21 are reintegration support

programs. When I say Indigenous programming, in Ontario they have to include

cultural components such as our grandfather teachings, medicine wheels, sweat

lodges, connections with elders – which is critically important – traditional healing, 45

Indigenous arts and cultural concepts of justice. I can give you an example: one of

those programs, we call it a reintegration and support program, is remote community



intervention workers, and they often are the link between probation services and the

remote community. So those workers are members of the youth’s community, and

they provide culturally appropriate programming, services, rehabilitation,

reintegration, and positive partners. So they are there and they’re connected to the

young people directly. Structurally I will say, just in terms of Ontario, some of the 5

things we have done is we have created the first secure custody – the facility is called

Ge-Da-Gi-Binez Youth Centre in Fort Frances. That is the first of its kind in

Canada, dedicated to rehabilitating Indigenous youth in conflict with the law. So it’s

a 12 bed facility, built and operated by Indigenous service providers – and that’s

really important. So Ge-Da-Gi-Binez is Ojibway, meaning “spotted eagle”, which 10

reflects that younger Eagle. But it was from design and it was an opportunity again

to build from the ground up. Design was through guidance with local elders,

educators, chiefs, youth workers. It’s just – it is quite incredible. One of our open

custody ..... is a 10 bed open custody. Again, it’s operated by Friendship Centre and

provides services to youth in the local area. So where ever we can be directly 15

responsible, absolutely it has been critically important. But those pieces around the

young people trying to get the community based services and programs in the

community is also critically important.

And are some of those - - -?---There’s - - - 20

Sorry?---Go ahead.

I was just - - -?---No, I thought – my gosh, I’m sorry. Go ahead.

25

I was just going to ask whether those programs looked at also addressing underlying

causes such as poverty and employment issues in remote communities?---Fantastic

question. If I can – because absolutely, and if I can give you an example because

there is many, but this one tells a good story and it’s a very unique model, and it’s

one we have created and has made an impact, a difference. But we call it our 30

prevention initiatives in remote high need first nations communities, and it’s one that

develops relationships through recreation-based programming to help identify

community priorities and needs for children, youth and their families. So you can

imagine it does not work for government to stand on the outside and decide what we

think communities need, and so that programming model starts with recreation play 35

and then we have real focus discussions with chief and counsel about what their

needs are.

And prevention is really important because, I will tell you about our Pikangikum

First Nation as one example. But you know, the needs are so – they can be so 40

extensive and where do you begin? And beginning has to come from the community

itself. So Pikangikum First Nation in Ontario, it’s over 1400 kilometres away from

Toronto. So it’s very, very far. You can reach it by air, but in the winter – or flying,

like flying community. However, in winter you can – there’s ice roads to reach this

community but very, very remote. And it experienced one of the highest suicide 45

rates of any first nation in northern Ontario, and a Coroner’s report some years ago

noted that a large proportion of those who committed suicide were between the ages



of 10 and 19 years of age. Based on our 2014 information, the population was

roughly 2400 people, but it was estimated that 75 per cent of that community was

under the age of 35 years, with 35 per cent of that number being less than 15 years.

So the prevention model is how we started – was really to address that challenging

history of poverty, substance abuse, criminal activity, unemployment, and the high 5

rates of suicide. So we had a partner organisation called Right to Play, and the

National Lacrosse League, and our Ontario provincial police and we ran a three day

program for the children and youth, a lacrosse program Pikangikum First Nation, and

while we were there and the kids were learning, sportsmanship, confidence and

leadership skills, the senior leaders within the ministry met with the chief and 10

council, and that discussion came to say, “What were your needs?” And they talked

about the needs for safe places for young people to play, and increased opportunity

for youth to development employment skills, and sometimes – you know, folks may

not see the connection directly to how does – what does that have to do with justice?

Well, recreation and employment skills and strong – strengths, building strength in 15

young people and protective factors, reduce the likelihood that they’re going to come

into the justice system. So what we did create is we built three playgrounds, and we

they also needed – the community identified the need for a dock. And so, in building

the playground and doing the dock, we also created opportunities – we called it the

Remote Community Employability Program, and Safe Places to Play project, but 20

what it did is it provided the young people in the community an opportunity to

support the building of the playgrounds and dock, and ..... fields. So they had

mentors that invested in them, and built their confidence, and built their skills, so that

they were leaving this project with real transferrable employment skills. This last .....

in April we opened what we call the community hub and again that is through 25

community consultation in Pikangikum, and the hub offers a unique space where the

community can come together, provides a central access point for needed health,

social services, youth justice services, again something that the community by design

had indicated their needs. So really important ..... what their needs are and making

the linkages to improving those social determinants of health, and those indicators 30

that we know, at the end of the day, are going to – are such a good investment in

these young people, and we know does make a difference in terms of the reducing

the likelihood of them coming into justice. Within Ontario we have not, at the front-

end ..... to be extensive on data collection on our prevention initiatives ..... we’re

going to strengthen in the next year to make sure that we can report on what those 35

differences look like. And that’s one example. So I hope ..... we know in youth

justice we have done some great work in terms of transformation, but we have still

work to do. Prevention is one area that we need to direct our energies and focus.

MS BOSNJAK: Thank you, Ms Stone. Commissioners, unless you have any 40

further questions, that - - -

COMMISSIONER WHITE: I think – thank you, Ms Bosnjak. From my

perspective, I think particularly with that last exposition of how the program went in

the far north of Ontario, that explored the issues that particularly interest us. I’m not 45

sure if Commissioner Gooda has anything further to ask.

.ROYAL COMMISSION 30.6.17 P-5388 A. BECROFT


COMMISSIONER GOODA: No. It was a great example, and I think we are

actually drafting a piece of work with this Royal Commission around engagement

with Aboriginal communities in the Northern Territory. So I just sent a note to make

sure we get a copy of your transcript this weekend to go through it. So it’s really –

thank you for that last bit. For everything, but that bit about engagement with the 5

communities is so important, as you’ve pointed out?---Absolutely. And if there’s

materials I can still provide to provide additional context, I will.

COMMISSIONER WHITE: We’re very grateful for that willingness, Ms Stone.

Thank you very much, again, for your cooperation with the Commission and 10

assisting us in the way in which you have done, and I can assure you that we will

probably be calling on you further, not in public hearings but for the provision,

perhaps, of some more documentation. We will terminate the connection now. We

do have Judge Becroft in New Zealand, who we hope is still there and hasn’t given

up on us. Thank you very much?---Thank you so much ..... an honour. 15

COMMISSIONER GOODA: Thank you.

<THE WITNESS WITHDREW [9.54 am] 20

COMMISSIONER WHITE: Mr McAvoy, I understand that Judge Becroft is –

although on the line much earlier, warned us that if he didn’t stay on the line we may

not get him again, because the connection wasn’t all that good. It appears he is not 25

there now, so we might adjourn until he comes up. And I hope the transcriber can

rest her fingers and wrists after that. That was pretty fast, wasn’t it? Alright, then.

Thank you.

MR McAVOY: Hopefully, it won’t take too long, Commissioners. 30

COMMISSIONER WHITE: No. Well, we will wait outside, but that – it’s easier

for people to do what they need to do if we are not here. Just adjourn for five

minutes.

35

ADJOURNED [9.54 am]

RESUMED [10.01 am] 40

MR McAVOY: Commissioners, we have Judge Andrew Becroft here by

audiovisual link.

45

<ANDREW BECROFT, CALLED [10.02 am]



COMMISSIONER WHITE: Yes. Thank you.

Welcome, Judge. Very good to see you again. We are delighted that

you - - -?---Thank you, ma’am. Likewise.

5

That you have accepted our invitation to give us the benefit of your very long

experience in this very important part of the work that we’re doing. So we hand you

over to counsel.

MR McAVOY: Thank you, Commissioners. 10

THE WITNESS: Thank you very much and - - -

MR McAVOY: Judge Becroft, your current role is as the national Children’s

Commissioner for New Zealand?---Yes. 15

How long have you been in that role?---One year today.

COMMISSIONER GOODA: Congratulations.

20

COMMISSIONER WHITE: And happy anniversary?---Thank you.

And all of those things?---Thank you very much.

MR McAVOY: That role is an independent statutory authority?---Correct, both as 25

an advocate and watchdog.

Yes. So your functions really are split between advocacy on behalf of New

Zealand’s 1.2 million children and the monitoring role performed under the Optional

Protocol to the Convention against Torture?---Correct. 30

Can you just describe for the Commissioners the characteristics which might

describe the youth in detention in New Zealand?---Yes. At any one time there’s

probably 150 in detention, 80 will be on remand, 80 to 85 per cent will be boys.

Most will be disengaged from school. 70 per cent will be Indigenous Maori. Most 35

will have drug and alcohol issues. 75 per cent there have a past or existing care and

protection background and an as yet exactly undisclosed or unknown will have some

significant neurodevelopmental disorders. They will also largely come from families

with a background of abuse, violence and neglect, that are transient and are

struggling, and are disproportionately poor with significant material disadvantage, 40

and it’s a very common and enduring characteristic, that is a real challenge. They are

the most disordered and damaged and dysfunctional teenage boys in the country.

And you’ve done, both in your present role and your former role, considerable work

around coming to terms with the designs of brain development and the capacity of 45

young people, and particularly young males, to engage in appropriate decision-

making?---Correct. I think most of the world leading research comes from –



emanated from Harvard University and other areas, but we know that the teenage

brain that was once thought to be developed, and then needed life experience from

about age 13 or 14, now undergoes a significant pruning second stage at about 14,

lasts into early adulthood in the 20s. Finishes first with girls. Finishes with last with

– last born boys in particular, and we know that is an area of significant development 5

which is all accelerator and no brand brake. It has got the frontal lobe still

developing. That’s the area that provides the impulse control and regulation, and it’s

a largely work in progress. We don’t call it the white water rafting years for nothing.

It’s a deeply challenging time where kids make some reckless, foolhardy and

spontaneous decisions that, thankfully, most will grow out of when the frontal lobe is 10

developed and comes on line. On top of that, we now know that many young

teenagers and children will suffer neurodevelopmental disorders in the way of foetal

alcohol disorder, epilepsy, autism spectrum disorder, ADHD, communication and

learning difficulties such as dyslexia, the real extent of which isn’t known. So when

you combine those two aspects, and we aggregate those boys together in concrete 15

warehouses, it’s not an enduring recipe for long term success, shall we say.

No?---And it’s enormously challenging work.

I will come back to that. One of the issues that arises as a natural consequence of 20

your observations about the effect on young people’s decision-making both in terms

of brain development and of neurological disorder is the extent to which they are

ultimately culpable for their criminal actions. Is that something that you’ve had

opportunity to think about?---Yes. I think most involved with young people would

be thinking through that issue very carefully. The brain science is in its infancy and 25

as a judge I’ve always preceded on the basis of personal accountability, but we know

that in the youth justice area in New Zealand that small groups that comes to court, in

some areas 30 to 40 per cent of those are raising questions of fitness to plead, and I

think in the next 20 to 30 years there will be an explosion of knowledge and interest

and jurisprudence in the field of how the neurodevelopmental disorders and other 30

mental capacity issues affect culpability. So when you say have I thought about it,

I’ve thought about it to the extent that it’s going to be one of the big and key issues

facing criminal justice, I think, in the next couple of decades.

Thank you. And in that context, I just ask you to have a look at a table which 35

appeared in a paper that you wrote whilst you were the principal judge of the Youth

Justice Court, and this table appears at page 23 of that paper, From Little Things, Big

Things Grow, a 2013 paper. And you can see in that table you’ve recorded the

reported prevalence rates amongst young people in custody for a range of

neurodevelopment disorders and the figures are really quite stark as between those in 40

the general population and those in custody. You would agree with that

observation?---Absolutely. I should acknowledge the source is the Children’s

Commissioner of England and Wales, my counterpart from, I think, a seminal report.

Nobody made the connection – that is no one made the connection between the

disorder and the offending, and they are very stark, and I think it’s one of the most 45

compellingly presented tables that I have seen and in terms of my role as children’s



Commissioner and our inspection of custodial facilities, it raises some pretty

significant questions.

Yes. We have, Commissioners, also tendered the report. Nobody made the

connection in the materials, and it’s - - - 5

COMMISSIONER WHITE: We have.

MR McAVOY: ..... available.

10

COMMISSIONER WHITE: Yes.

MR McAVOY: I just want to ask you now, Judge Becroft, about what in some

cases are called the cross-over children or overrepresentation – and

overrepresentation of Maori children and intergenerational trauma. So it’s correct 15

that Maori children are starkly overrepresented in both the youth justice and the care

systems in New Zealand?---Correct. 20 per cent of the population would be under

18, generally. 60 per cent plus of those in care are Maori. 70 per cent of those in

youth custody are Maori. More than 60 per cent of those appearing before the youth

court are Maori, more than 50 per cent of those apprehended by the police are Maori. 20

Yes, the disproportionally is stark, and enduring, and problematic.

And you’re familiar with the term intergenerational trauma or transgenerational

trauma?---Yes. I think it’s a modern formulation of what would have been in the

past been called the legacy of colonisation, but yes. 25

Yes. And it’s – do you accept, or would you agree, that there’s a link to current

levels of socioeconomic disadvantage?---Correct.

And that that, in turn, affects issues such as poverty and neglect, which are matters 30

which inform the decisions in the care system in particular?---Agree. I mean, it’s a

sad and tragic reality in New Zealand that, in the most disadvantaged socioeconomic

groups, Maori disproportionately figure. And yes that can be, I think, attributed both

to long term intergenerational trauma and current systemic discrimination.

35

And so in terms of the cross-over between care and criminal justice matters, it’s

correct isn’t it, that the approach in New Zealand is that all criminal matters for

children under 14 are dealt with as care and protection matters?---All except until

recently, 2011, a small defined group of very serious offences such as aggravated

robbery, aggravated burglary, rape and arson, and some very serious assaults where 40

there is the option to bring a 12 and 13 year old direct to the Youth Court. That is a

new development but otherwise, in the context of your comments, you’re correct.

And is it appropriate to say, in very short form, that the emphasis for those children

under 14 is on diversion particularly?---More than that, the philosophy of the system 45

is to say any criminal offending is a result of unaddressed care and protection needs

and those child offenders should be dealt with under a quite different system, in the



Family Court, in the welfare court, with the whole family using a multidisciplinary

approach. So it would be under selling it to say diversion. It would be to say they

are moved out of the Youth Court and dealt within a new and quite different

paradigm of underlying care and protection needs being the real issue.

5

Yes. You, in the paper that I took you to earlier, From Little Things, Big Things

Grow, you observed the tension between decisions about whether children should be

dealt with in the care and protection system or in terms of the criminal justice

system. And if we could just show Judge Becroft page 33 of that paper. Page 33,

please. And if it could be enlarged so that we can see what is – paragraph 1. 10

Numbered paragraph 1, please, if you could zoom in.?---I could zoom in myself to

the screen and have a quick look. I should have had it in front of me, but - - -

It will be here in a second, I’m sorry?---I think I know what it says.

15

I will tell you what it says. I’ve paraphrased it in the question, but in that paragraph

of the paper you raise the following questions:

When and on what basis, should offences committed by young people be seen

primarily as a result of care and protection failures (requiring resolution in the 20

Family or Care Courts). Further, when and on what basis should offences be

dealt with as intentional breaches of the criminal law by autonomous,

responsible individuals requiring resolution in the criminal courts? This raises

the issue of how care and protection issues are to be recognised and

importantly, how it is to be concluded that those issues have been causative of 25

offending. It also raises the profound risk of criminalising what is essentially a

welfare issue.

You wrote that paper, Judge Becroft, when you were sitting on the bench as the

principal judge of the Youth Justice Court. Having now had a year in your current 30

position, perhaps with some added perspective, has your view of that conundrum or

dilemma been advanced or refined and do you have any added perspective that you

can share with the court?---Yes. I emphasise I speak as Children’s Commissioner

and that has been fairly made clear. After a year, I wouldn’t resile from a word of

that, and I probably put it even more clearly, that in our work of monitoring and 35

visiting youth justice prisons and residences, it’s even more clear that much of the

underlying behaviour and causative influences are care, protection and welfare

issues. There comes a time when the offending is so serious that there has to be

individual accountability and a criminal justice response. But, by and large, I would

be even more firmly of the view than what I wrote at the time. And I can do that 40

unshackled, as it were, from judicial constraints. As Children’s Commissioner, I

think it remains a fundamental issue and you cannot visit those in custody without

being struck by the fact that almost all those there have some very deep-seated long-

term and profoundly enduring welfare needs.

45

Thank you. I just want to ask you some questions now about incorporating what

you’ve referred to as the Maori world view. Clearly, on the figures that you’ve cited



today, there is a proper basis for the statutory scheme to focus on Maori children and

communities, and other communities such as Pacific Island communities. Those –

the focus in the legislation came with the 1989 reforms; is that correct?---Correct.

There was a groundswell – yeah, there was a groundswell of community concern that

too many Maori children and families were being institutionalised by a European or 5

Pakeha system, we would say, and there was enormous discontent from Indigenous

Maori New Zealanders, practitioners, and academics that something had to change.

And the ’89 legislation was effectively a new paradigm and a model for what you

could say would have been a revolution, although not quite delivered.

10

And in that respect, the Act incorporates concepts such as whanau, hapu, and iwi,

which are Maori concepts; yes?---Yes. Of family, wider family, tribe and subtribe;

correct.

And in doing so is it fair to say that the legislation provided for a regime which 15

ensured that decisions were not made in isolation of the cultural factors of the

children that were known to exist?---Absolutely. In fact, we could go further and say

the thrust of the legislation was to envisage a partnership between the Crown and

Indigenous communities who would work together and deliver their own solutions

for their own young offenders. That was clearly the dream, and they would be 20

encouraged to develop their own responses to offending by Maori young people,

which the Crown would support, participate in and help deliver.

And central to the inclusion of the Maori world view are the mechanisms of family

group conferencing and the Rangatahi Court?---Yes, the family group conference 25

was not a pure Maori model, but had much that was consistent with the Maori

cultural view which was where ever possible if a young offender couldn’t be diverted

they would come to court and as long as the charge wasn’t denied they would be

dealt with by a family group conference, which would involve the victim, and the

young person, and families, and community, and for care and protection, wherever 30

possible, rather than a court institutional decision, there would be a decision made as

a result of families and wider family community getting together, that would be

endorsed by the court, and monitored and supervised by the court. So the family

group conference was really an exercise in delegating decision-making power from

the courts to the family, victim and community. And its model, when done well, had 35

the in it the seeds of genius and it was particularly – particularly attractive for

Indigenous cultures.

And is – that attraction to Indigenous cultures, did it in part involve the self-

determination aspect arising from being in a position to make decisions which were 40

then assisted by the court and other groups in the community?---Absolutely. You’ve

got it.

So the process with family group conferencing is one that is required in the Act, and

before any orders are made with respect to a child, it’s mandatory that family group 45

conferencing must be undertaken; is that correct?---Correct. Correct.



And so, without taking you to the various sections of the Children, Young People

and Families Act, on the screen is it fair to make the observation that sections such as

section 21 in relation to the care and protection coordinator, section 36 in relation to

the CEOs decisions or recommendations, and section 74 in relation to court

declarations, they are all framed in terms of the relevant parties must, or shall, 5

undertake certain actions that are consistent with the empowerment and inclusion of

the children and families in the decision-making process?---Correct – correct.

And how important do you see the direct mandate in the legislation to work in that

particular fashion?---Absolutely fundamental. And it really introduced a new 10

paradigm of dealing with the care and protection issues and there’s mirror provisions

further on in the Act for youth justice. I mean, like any new paradigm, it needed a

shift of behaviour and of resourcing, and I guess if you’re asked any question in New

Zealand about how it’s going, it would be it’s very easy to institutionalise any

response and we need to do better with family group conference to rejuvenate them 15

and ensure wider involvement of family, whanau, hapu, subtribe, and iwi, and it’s

very easy under pressure for the conference participants to shrink to the smallest

group and too many conferences are held in Child and Youth and Family offices. So

for a while we were in danger of another under paradigm of becoming

institutionalised again. So there’s always an ongoing tension, if we mean business 20

about devolving decision-making power, to be true to that and making sure that

communities, especially Maori communities, are widely involved in the process and

that takes well trained and well supported facilitators who keep that vision in front of

them.

25

But it has been some time since those provisions were inserted in the legislation, and

is it the case that that particular way of working of including families and hapu, and

iwi has become recognised as the standard, or the norm, rather than something

additional that is done in relation to the care of children?---Absolutely. That hasn’t

changed. I don’t think we would turn the clock back on it. And however many 30

disadvantages could be seen with this system everybody, I think, would say at its

best it is light years ahead of the system that replaced it with. The only challenge is

to walk the talk and practise what we preach and properly fund it and ensure the

vision is kept clean. But, in principle, the architecture of the system is part and

parcel of the care and protection system now, you’re right. 35

COMMISSIONER WHITE: Judge, can I ask you this about the family group

conference: you said there’s a real risk that the participants will shrink in number, of

course, but they are always conducted under the auspices of an independent

facilitator, I think I understand; is that correct?---Independent but paid for by the 40

government ministry that also has the responsibility to implement and assist with the

decision. So, independent with a small i.

Yes?---And largely dependent on the energy, the vision, and expertise of that

facilitator to get out and find out who are the wider family and ensure that 45

grandmothers and uncles and wider relatives are pulled in. And under pressure, it

often be shrinking to mum and dad and the government agencies. But that’s – that



was for a while, too often, the low ground, and we need to be keeping the high

ground vision in front of us.

And those from whom the facilitators are drawn, what’s the typical profile of a

facilitator, if there is one, Judge?---Ideally community-based, known in the 5

community, know their community, are respected, and are trained and are able to

facilitate and handle conflict and the pretty raw emotion that will inevitably be

unleashed in a family group conference. So it’s not an impossible job description,

but it calls for some of our best and finest community members.

10

MR McAVOY: Thank you.

COMMISSIONER WHITE: Can I have one finishing off questions on the

facilitators. Is it difficult to find people who are prepared to step forward and fulfil

that role, both in the Maori communities and in the wider communities?---That’s a 15

fair question. I’m not probably the person to ask, because I’m not the person who is

finding them, but I know that the Maori community increasingly are saying,

“Actually the 1989 vision hasn’t quite been delivered, and we’re up for it.” So

there’s an enormous reservoir of goodwill and expertise in the Maori community

saying. “Use us.” And there’s a move towards co-facilitation and indeed 20

coordinators of conferences devolving conference facilitation to appropriate Maori

representatives, which probably was the original vision anyway but it became a bit

institutionalised. It’s always a risk with any new system.

It is. Thanks, Mr McAvoy. 25

MR McAVOY: Thank you, Commissioners.

In terms of the oversight of the family group conferencing, is that something that is

solely within the domain of youth justice, or the Youth Court, or is it something that 30

is also able to be monitored in its performance by you in your role as Children’s

Commissioner?---The conference – well, the conference itself is utterly independent,

with no judicial involvement, and everything that takes place there is privileged and

confidential. What comes out of it is a written plan, a care and protection plan, that

goes to the judge for endorsement, monitoring and assessment. Same for criminal 35

justice in the Youth Court, and at times it may be the court steps in and says,

“Actually, this is so serious that there needs to be a formal court order.” But the

essence of the pointers that – the family group conference has the complete

autonomy to come up with decisions, and any supervision that there is, is to do with

the quality of the plan that comes out. But we wouldn’t have any knowledge of what 40

took place within the conference or the transaction over one, two or five hours at all.

And that’s kept entirely – what happens on tour stays on tour.

Certainly, but how then do you ensure that the appropriate parties are present at the

conference, if it’s not a matter for the court. How does one give oversight to that 45

process?---First and foremost, that’s the function and sole responsibility of the

coordinator and facilitator, but the report that goes to the respective courts sets out



who has attended, and it is far from unknown for a judge to say, “This isn’t good

enough, the number of attendees is so small that this doesn’t even begin to cut it.

You will need to go back and do it again.” So that perhaps provides the answer to

your question.

5

Yes. Thank you. Another important aspect of the system, as it operates in New

Zealand, is the operation of the Rangatahi Courts. That system is a system of courts

particularly directed towards Maori youth; that’s correct?---Yes. Almost exclusively

directed towards Maori youth, but not in an exclusive way. Anyone could

participate. 10

Given what you’ve said earlier in the evidence today, about the effects of poverty

when compounded with issues of trauma and the relation, perhaps, of

intergenerational trauma to the colonial aspects of New Zealand’s past, how

important is having a Maori court such as Rangatahi in terms of engaging with young 15

people about criminal offending?---I think absolutely crucial. All the qualitative

research that has been obtained so far is absolutely compelling that a process that is

culturally adapted ..... the Maori language with Maori elders involved too, in a way

that we have never been able to achieve in the urban-based Youth Court, increases

performance, engagement, and trust in the system. The rule of law is enhanced, 20

especially when it is in the language of those who are participating. I should say it’s

not a statutory innovation. It’s consistent with the principles whereby hapu and iwi

are empowered to develop their own solutions, and it has been dependent on Maori

judges who speak ..... who have courageously, step by step, developed the initiative

using community based resources, and I would be reluctant to say too much more 25

now, as Children’s Commissioner, other than there has been something pretty

special, and I think fundamental in character, about having a court that relocates and

culturally adapts itself to the majority – because that’s what it is, the majority – of

those young people who come before it. And gone from the Youth Court is the

swagger, the disconnect, the sort of underlying anger and arrogance. Young people 30

who are Maori before a Rangatahi Court, which starts after the family group

conference and really monitors the program and adds to it, those people are

qualitative different. They turn up. Their families turn up. And, in a way that is hard

to put into words, they get that this is different, and they get that the process needs to

be respected, and they do. 35

Yes. New Zealand is currently undergoing a further round of reforms. It has been in

place for 12 months or so now?---Hasn’t started yet, really. It’s really 1 April – it’s

still being rebuilt, still legislation before the house, but the fundamental architecture

of what we have talked about isn’t changing but there have been – there’s a much 40

greater commitment now to earlier intervention, prevention and cross-agency

collaboration, because too often in the care field in the past, every issue was dumped

at the feet of the Child, Youth and Family government service and nowhere were be

seen were health, really – I’m exaggerating – where health and education and mental

health services and really it has got to be a joined up approach. So that’s one of the 45

biggest changes.



And how is that proposed to be effected in terms of the legislative amendment? Are

you able to comment on that?---Well, there’s explicit provision to intervene not when

there are actual care and protection needs but foreshadowed and predicted care and

protection needs. There’s a much greater emphasis on doing better with Maori

young children and Maori offenders, and there’s an explicit now obligation on other 5

government departments to demonstrate how they are being involved in a measurable

way both in the care and in the youth justice domain. Because we can’t

compartmentalise the approach. It’s not rocket science but it’s great to have it

reflected in the legislation and impose burdens on government agencies to work

together. That has got to be a good start. 10

Yes. And so - - -

COMMISSIONER WHITE: And is that done by a standalone ministry that will

oversee this joining up of the various services and agencies?---Correct, in two ways. 15

There’s a new ministry called the Ministry for Vulnerable Children, or Oranga

Tamariki, because Maori is an official language and almost every agency would have

a Maori and an English name. Mind you, the Maori name is nothing like the English

name. The Maori name means, “the wellbeing of our children,” it’s a positive

aspirational name, as opposed to the vulnerable children, which isn’t a name. That’s 20

all that – I guess popular in New Zealand. And also there’s a vulnerable children’s

board made up of the chief executives of all the government agencies who meet, set

targets, and report each year as to progress.

MR McAVOY: Thank you. And part of the reforms include discussions around 25

children’s care teams?---Correct.

And with the emphasis being on locally led multidisciplinary teams, which I suggest

give effect to the type of emphasis that we have just spoken about in terms of cross-

agency delivery of services?---Absolutely, in every way. They started before the 30

new legislation. They’re underway. We are about 20 per cent down the journey of

full coverage, but it is exactly as you say and I think it is to be welcomed.

And the model of children’s care teams provides for a team director. How was the

team director selected and how important is it to get an appropriate team 35

director?---The first question I can’t answer other than the government agency, I

assume, is in touch with who from a variety of agencies is best placed locally to do it.

But I know they come from a variety of agencies, according to ability and

availability. And any organisation, it usually stands or falls on the lead taken by the

director. So the role is pretty pivotal. I think we have learnt a lot about getting the 40

right person and working collaboratively, but the organic bottom-up approach gets

best buy in the community. I’m not an expert on children’s teams, but I’ve observed

it, I’ve been to children’s teams national meetings. I think most people would regard

it as an exciting concept that still needs to be more properly resourced and

developed. And we are in our early days in New Zealand. 45



Finally, Judge Becroft, I just wanted to ask you whether you are aware that in

Victoria, in Australia, there is an Aboriginal – a Commissioner for Aboriginal

children. Are you aware of Mr Andrew Jackomos and his role?---Absolutely. I had

my first meeting with the Australian Children’s Commissioners Conference, that

meets twice a year, and I was very interested to know of the Victorian model. Our 5

Children’s Commissioner in New Zealand, at some stage, will be reviewed as to

whether our current scope and functions are adequate. And I think it’s a really

interesting idea for New Zealand to think about whether there should be two

Commissioners or a Commissioner and a deputy Commissioner one of whom should

be Maori. And, given our own figures, that really caught my attention and may well 10

capture the imagination of policy makers in New Zealand.

Thank you. I have no further questions for Judge Becroft.

COMMISSIONER WHITE: Thanks, Mr McAvoy. I have one question, Judge 15

Becroft, and I’m not sure that it’s answerable, but I will put it to you anyway. Early

in your – when you were speaking with us, you were talking about the prevalence of

a range of cognitive deficits and neurodevelopmental problems in the youth that

regularly appear within both the criminal justice system and the child protection

system in New Zealand. There can be some intensive treatment which may help to 20

modify and manage that behaviour, but I think it’s generally recognised, unless

there’s early intervention in order to protect the developing foetus in the mother and

then, of course, we know the expression the “first thousand days” it’s going to be an

uphill battle. Is that the sort of engagement that these new early interventions are

attempting to address in New Zealand, amongst others?---Yes, exactly right. I think 25

anybody who works with damaged children in the care system or the youth justice

system, and especially my new role, in monitoring the system as a whole, is driven

back to the conclusion that as you put it, the first thousand days and earlier

identification and intervention is crucial. Bearing in mind that some of those

disorders, such as foetal alcohol syndrome, are irreparable and will require good 30

management and ongoing intervention, but there’s every reason to be optimistic. But

it’s wrong that the first time these issues are identified is either in a care court or in a

criminal justice court. We have got to do much better at finding those issues earlier.

One might conclude that, unless they are, and prevented, then the statistics will never 35

really get a lot better, because you will always have young people who have got

these problems?---One might.

Yes?---One might, one should and I hope one would.

40

Thank you. Commissioner Gooda and I, of course, have got very warm memories of

our visit to New Zealand last year and the assistance that we got from all the judges

and from the offices in the child protection system as well as from yourself, where

we learnt a great deal, and it has been very good to have it all wrapped up in this

session this morning with you. So thank you very much indeed for talking with 45

us?---Thank you. It has been very helpful to us and indeed as a result of your visit

our office undertook a detailed monitoring and visitation problem of all of our nine

.ROYAL COMMISSION 30.6.17 P-5399 K. DAVIES XN

©Commonwealth of Australia MR CALLAGHAN

residences, our secure residences, to see what the real situation was, in as much detail

as we could, to be sure that whatever happened overseas couldn’t, or wouldn’t

happen in New Zealand. And it was a wake-up call to us all, and your visit generated

a lot of activity internally, so I can acknowledge that as well.

5

Thank you, Judge Becroft. I think we have probably exhausted our time with you

this morning and, again, thank you so much for joining us?---I appreciate that and, in

my role as Children’s Commissioner, I greatly appreciated the opportunity. Thank

you.

10

COMMISSIONER GOODA: Thank you.

<THE WITNESS WITHDREW [10:42 am]

15

COMMISSIONER WHITE: We will take a break now before we start the next

witness. We will take a break for 15 minutes.

20

ADJOURNED [10.43 am]

RESUMED [11.04 am]

25

<KEN DAVIES, SWORN [11.04 am]

COMMISSIONER WHITE: Please be seated, Mr Davies. 30

<EXAMINATION-IN-CHIEF BY MR CALLAGHAN

35

MR CALLAGHAN: For the record, could we get your full name and occupation

please?---Yes, Kenneth Lindsay Davies, chief executive of Territory Families.

Mr Davies, you’ve already prepared one statement that has been tendered before this

Commission, that’s exhibit 424, but do you have today prepared a further statement; 40

is that correct?---That’s correct.

Dated 30 June 2017. I tender that statement.

COMMISSIONER WHITE: Exhibit 647. 45



EXHIBIT #647 STATEMENT OF KEN DAVIES DATED 30/06/2017

MR CALLAGHAN: Mr Davies, you’ve been following the work of the

Commission and would you agree that the nature of the problems that have been 5

exposed in the course of this inquiry have really been system-

wide?---Commissioners, I definitely would say that we’ve got a big challenge going

forward and I’m looking forward to taking that challenge up. So I absolutely

acknowledge that.

10

And you’ve heard the phrase or we have heard the phrase “watershed moment”.

Would you agree that this is one of them?---The time is right, Mr Callaghan,

definitely. Commissioners, we have got a new Government in place. We’ve got a

great opportunity to challenge the way we’ve dealt with the child protection and

youth justice systems, and it’s my role to make sure that there’s a good plan around 15

that that’s approved by government.

Mr Davies, it has been suggested to this Commission that the consideration of

historical matters is of limited utility for the purposes of making findings and

recommendations that are designed to achieve systemic reform but, on the contrary, I 20

would suggest to you that it is a cliché only because it is true that those who cannot

remember history are condemned to repeat it. Would you agree with that?---From

my perspective, we absolutely need to take, and acknowledge what has happened in

the past and my job is to absolutely make sure that the recommendations that come

out of this Commission and the reform agenda that has been set by the Northern 25

Territory Government is implemented to deal with those past issues.

And alright. Yeah, I think I acknowledge that. And I just take it one step further.

Can you see perhaps some value, when training staff in the future, for them to be

reminded of what has happened in the course of this Commission?---I think 30

depending on the findings and recommendations, Commissioners, that come out of

it, that will frame the way forward And, of course, this will be a watermark for the

plan that we put in place to deal with families at risk, and children who are

vulnerable, and youth in detention. So you can’t ignore the past and people in the

Northern Territory, it’s a small place, will be well aware of the history and the 35

journey that has gotten us to this point.

And I should, at the outset, make clear in all of my questions it’s understand when

you came to the position that you’re in now?---Thank you, Mr Callaghan.

40

And it’s also understood that you have made, and are making, changes. It is further

understood that you are awaiting on the recommendations that you’ve referred to.

So, please, in all of my questions, let it be known that that’s understood because

some of the questions that I do have are about the issues that are continuing,

notwithstanding all of that goodwill, if you like. And can I start those questions by 45

reference to the state of the physical facilities in which young people are detained.

We understand, for example, that perhaps 50 per cent of the buildings at Don Dale,



in the Don Dale Centre are condemned. Are you satisfied that the detention facilities

in the Northern Territory at the moment are safe places for the children who are

detained there?---So it became very clear to me, right at the outset, that we needed to

do a very thorough look at both of the – both Owen Springs and Don Dale,

Commissioners. We undertook that work with the Department of Infrastructure and 5

Planning, and the object was to make sure that we could make those facilities safe,

given there were young people inside them and given that the Owen Springs facility

was in fact an adult low security facility, historically, and Don Dale had been an

adult prison. So it’s absolutely acknowledged that there was work to do and, as part

of that work Commissioners, I was actually asked by the Chief Minister to make it 10

very clear that whilst we needed to invest in those facilities to make them safe and

amenable, there was no intention out of that to create them and to build them to a

point where they could become permanent facilities. So the program that we put in

place at Don Dale has been about fixing and making it safe. So, from my

perspective, given that work is still on foot, they are as safe as they can be given that 15

they were an adult prison. In relation to Owen Springs, we have still got work to do

down there to fix it and make it safe and that will be undertaken during the next three

to four months.

I was going to ask you about that, because whilst we understand that’s planned to 20

occur imminently, what is the plan for the young people who are in detention there at

the moment while those refurbishments take place?---So we have got a few things on

foot there, Commissioners. One is that we’re moving as quickly as we can to

establish a bail support program down there for young people, that the judiciary will

trust and we hope buy into, that will allow young people who can be bailed to be 25

housed in appropriate locations. So that’s one part of it. We are, as well, negotiating

the timeframe with the contractors that need to do the work, to make sure it can be

done as quickly as possible. We’re also considering how we might create a separate

facility on the site that would allow us to house young female youth that may be

remanded, rather than flying them to Darwin, which is currently what occurs. In 30

relation to the enclosure it will mean that, for the period of five to six weeks, that the

young people that are remanded to the youth detention centre at Owen Springs, they

will be required to be transported to Darwin. But it’s essential – essential – that

they’re in a safe environment, and we can’t do the fit-out and works with the young

people in it. Concurrently, we are also outfitting a bit of infrastructure called Mum’s 35

and Bub’s, currently in Alice Springs, that we are hoping us that will enable us to

utilise as a bail support service as well for young people. The effort is to reduce the

numbers in Owen Springs and to make Owen Springs as safe as possible, as quickly

as possible.

40

Just on that question of those who will have to move, even only temporarily to

Darwin, this Commissioners has heard a lot of evidence about the distress that those

sorts of moves cause. Is there anything to be done to ameliorate that stress? Can you

promote, for example, extended contact opportunities with families whilst?---So, Mr

Callaghan, we definitely – Commissioners, definitely are looking at all those 45

circumstances. We don’t want to remove young people from country, and from their

locations, but I can’t have them in a facility, when they’re sentenced there by the



court, that is inadequate and currently it is inadequate. The classrooms, in the middle

of the facility, it’s the field area for the young men to play in and kick a football in is

too small. So we have got to do something to rectify that situation. So, in terms of

taking the young people to Darwin, we will continue to work through Congress and

through CAALAS to make sure that parents and family are told about the situation, 5

that it’s clear. I’m hoping that, and we have had discussions with – early discussions

with the courts about the need to do this work. So I’m hoping that during that period,

we can do things as quickly and as efficiently as possible to make sure that the

facility that the young people return to is secure and safe.

10

As we understand it, as at last night, the high security unit at Don Dale is at capacity.

How will that centre cope with more young people if they have a security

classification that requires them to be housed in the high security unit?---Mr

Callaghan, there are 46 young people in detention today. Ten in Alice Springs, as I

understand it. There’s 35 that will be out at Don Dale. I would need to check the 15

facts around that high security unit being full. But it is a big footprint there, and

there are options around how we distribute the young people that are inside that

facility based on security classification. So we have made no immediate move to

bring those youth to Darwin yet, because it has to be properly planned. That’s my

role, to make sure that it’s done properly. So if we can’t make sure that people are 20

placed in the right categories, we will need to work out how we can make it so and, if

necessary, we will have to hold the rectification works while we sort that out. But I

go back to my point: these are temporary options, and if the courts are going to

remand young people to the Owen Springs facility, I have an obligation to make sure

it’s as safe as possible, understanding that removing young people from their country 25

and from Central Australia does require some negotiation with family and is a

separation.

And you just say, if courts are remanding people, and that leads to the wider question

of how many of the children in detention in the Northern Territory at any given point 30

are just in detention on remand, not serving a sentence. And, again, this is broad

brush stuff but - - -?---It is.

- - - but it’s something that the Commission has heard a lot about. And accepting

that there’s always going to be a need to remand some children before they’re 35

sentenced, the fact that it seems to be consistently that the majority of them are on

remand, of itself, is suggestive of a failure in the system, is it not?---Well - - -

In a broad sense?---I think when you look at the way other systems have dealt with

this, we’re moving in that direction. So I guess in the context of the process of 40

remanding, the thing is that judges need the capacity to have options around that.

And one of the things we are going to do, and we are doing as quickly as possible, is

to put in place these bail support programs. So yesterday I travelled with the

Commission secretary and a team out to look at Yirra House, which we have

remodelled, and we are going to let a contract soon around that, which will be a bail 45

support program. And I anticipate we may even get youth who are at risk dropped

off there, who need a place to sleep, but we are working with non-government



providers to find a provider and hopefully that will be an Aboriginal provider that

will be able to assist us inside that facility. So Mr Callaghan and Commissioners, the

real issue here is options and one of the things we have got to do is to work to create

options, so that there is an option to put somebody into a bail support facility, bearing

in mind that those facilities can’t be regarded as fully secure facilities. 5

And the reason you are doing this, I would suggest with respect, is because you

acknowledge that it has to be done, because a system that might have 80 per cent of

children in custody on remand is a failed system, and that’s why you are addressing

it?---That’s why we’re moving to address it. 10

Yes. Can I move to the question of the policies that apply in the operation of

detention centres. And, as I understood the evidence given by Ms Kerr in December,

one of the proposed strategies, referencing the Hamburger review, was that there

would be a review of all training policies, determinations, communications and 15

procedures and new documentation and training would be implemented. And the

due date for the delivery of new documentation and training on all policies is actually

today, 30 June 2017. Has that been done?---So in terms of the training program,

absolutely. So the training program, both for the youth justice officers and the youth

outreach officers that have recently been engaged has involved quite a rewrite, and 20

involved the insertion of units on therapeutic care in dealing with youth with trauma.

So all of those youth outreach officers and youth justice officers, 24 youth justice

officers and the 52 youth outreach officers, have all been through that training

program, with the conditionality that they’ve completed their cert IV course by the

end of the 12 – of a a 12-month period. So in relation to the directives and the 25

review, the review has been completed. But, in terms of the work around making

sure that all of the directives are finalised and that material fully reconciled, I will

need to get some further advice for you about that, Mr Callaghan. I understand,

whilst we’ve been dealing with this due date, that you’ve got to understand from our

perspective there has been a lot on. So I can’t guarantee that everything has been 30

done but we will get you some advice about that.

Can you tell us how it has been prioritised?---Well, this goes to the directives around

isolation, putting young people at risk, the use of restraints – these are all high

priority imperatives. I would ask you to keep in mind that this is a bit like the Fix 35

and Make Safe Program. This is a big piece of work. And for this agency, we’re

dealing with a lot of legacy issues and for this agency it’s not an excuse, but this is

month 10 of this agency being established, and youth justice moving from an adult

corrections environment being brought into the youth justice area in Territory

Families. There’s a lot of work we still have to do. 40

I understand, but I am trying to get a sense of particular policies and the priority that

has been accorded to them. In February three policies dealing with management and

isolation and misbehaving detainees were suggested for further detailed review

against human rights rules, including the Havana Rules. I’m speaking specifically 45

about the individual intensive management plan, the designation of high detainees

risk directive, June 2015, and the de-escalation rooms procedure dated January 2016



and marked for review July 2016. Have they been reviewed?---I would need to –

Commissioners, I would need to seek some advice about that. What I can say is that

the – a part of that review process has meant that if young people are going to be

deemed at risk – as at risk and to be placed in isolation, that is not an approval

process that can be done at the detention centre itself. It requires the approval of the 5

deputy chief executive operations, Jeanette Kerr, or the person who is acting in her

person, so there’s a check there that enables us to ask why that is being adopted and

the rationality behind it. So that is something that has been introduced to put a

further lens on those particular directives.

10

Can I take you to one particular policy that you would have had your detention

drawn to recently, because of some high profile events, and that was the

classification policy?---Yes.

In April 2017 the policy in place was actually an interim one dated 20 December 15

2014, and, as you would be aware of course, two detainees to whom that policy

applied escaped?---Yes.

There was a review, and certain findings were made as a result of the review. One of

those was that a review process of policies, or it was noted that the review process 20

had begun, but that until policies were reviewed or newly issued existing policies

should be applied and staff should be reminded of this.?---Yes.

Did that happen?---Absolutely it did happen, Commissioners. So following that

review, which was a timely review for us, the procedures were looked at, and the 25

policies in terms of their application. It was found that they were being loosely

applied, there were decisions being made on the run. Those decisions are now being

done as per those particular directives, and followed through very thoroughly. Every

person who goes into Don Dale and who is currently in there, has their classification

reviewed and looked at. And there’s actually a paper trail around those decisions 30

that are made. So we learned some lessons from that exercise, and – and have

implemented them.

One of the things also found by the review was that there was no formal recording of

the deliberations that led to the misclassification. As you would be aware, 35

recordkeeping has been something that this Commission has been hearing about and

making noises about since well before April. But it’s clearly – or at least as of April

was clearly still an issue. That must concern you?---We have implemented some

senior changes inside the detention centres, and I am much reassured that those

procedures are being documented and that decisions are being documented. We also 40

put in an assistant superintendent to make sure that those procedures were being

followed. There has been a lot of work done here to learn the lessons from that

particular situation, and I’m pleased to say that the – both Don Dale and Owen

Springs, as a consequence of that, the youth and the youth justice officers inside

those detention centres are more strongly led than they were in the past, and I have 45

greater confidence that those procedures and processes are being followed properly

for both the welfare of the young people there, the youth, and for the staff.



Can we take that wider though, and to the topic of record keeping generally. I mean,

you would be aware that there have been some serious issues raised about the quality

of the records that have been kept over a very long period, well before your time in

this position?---So I think if we go to the child protection area, record keeping is

absolutely essential as it is for young people. My perspective is that as soon as a 5

young person goes into either Don Dale or Owen Springs, a lead in care plan needs

to be started, because you’ve got to think about where we want that young person to

get to. There needs to be a plan. Documentation is absolutely critical in that regard,

as is CCTV coverage and so on. So we’re moving to improve, as quickly as we can,

the processes inside both Don Dale and Owen Springs and we’re moving as quickly 10

as we can to make them safe, and make them amenable for the young people inside

them as we can, given they were adult facilities.

You mentioned the concept of a leaving care plan there, and that might be a

convenient point to turn attention to child protection, because the evidence from Ms 15

Thompson was that the leaving care plan which is the subject of a guideline, a

guideline that says it is required, but it’s not being done in all cases?---No.

That’s an indication of poor performance?---Well, I think it’s an indication – one of

workload of caseworkers. I think it’s - - - 20

Sorry, I’m sorry to interrupt. I didn’t mean poor performance necessarily by

individual case workers, I mean poor performance by the Department as a

whole?---And so I just take a step back from that, Commissioners, and say that’s

why the system has been joined up. And I go back to my point – my earlier point 25

that this is a work in progress. Traditionally, child protection – and at the time that

issue was raised, and I think it was raised by NAAJA, the child protection agency

was quite separate from the youth detention area, which was in the corrections area.

So the architecture around that interface just didn’t exist. It has now been brought

together and I acknowledge that there are still deficiencies in that area, but that will 30

be something that we are working as hard and as fast as we can to rectify. And in the

context of it being raised by – at the Commission, it’s one of those areas that we

definitely are going to continue to work on.

Well, if we move from that guideline to a policy, again in Ms Thompson’s evidence 35

there was discussion about the policy concerning face-to-face contact. And it was

accepted, and I think demonstrated, that perhaps 17 per cent of the children in care

who should have monthly face-to-face contact might go three months without it, and

that as a result they were being exposed to risk. That is more than poor performance.

That is indicative of failure; is it not?---It’s indicative of a system being under 40

pressure. I think if we talk about failure of individual workers, I want to just preface

this. I’ve come in from - - -

I wasn’t talking about that, as you know. I’m talking about systemic matters and the

Department as a whole. I’m not laying this on – any individual is not in 45

discussion?---I – yeah, I’ve found a fantastic, dedicated, professional team of child

protection workers. It does go to the issue of caseload, and – and I think if you go to



the numbers, the monthly contact, it is, when I’ve checked this – and again, you

know, these are issues of concern to me because, clearly, I’m worried about young

people’s welfare and vulnerability as well. The case worker contact, whilst it may go

beyond the monthly timeframe, it does not mean that other workers from Territory

Families have not been interacting with those young people. 5

I’m sorry to interrupt. We understand that?---Yep.

We know there might be contact with other people, but it’s the fact that your

Department has a policy, and it’s not complying with its own policy. I would 10

suggest to you that is – you know, meets the definition of failure if a Government

Department can’t comply with its own policy?---And again, Commissioners, I will

just go to the point that this is why – so if we think about the Board of Inquiry and

where child protection was at that time, it was inside health. Came out of health to a

small standalone agency. If we are talking about case worker contact inside the 15

youth justice system, the youth justice system was tucked in under an adult

corrections system. The Government has moved to put in place Territory Families to

pull these elements together, and if there’s findings that come out of this Royal

Commission that will – that give us some guidance around what needs to be rectified,

then that will be fantastic for us because we want to make sure we are improving 20

things and create a plan going forward. On this particular issue, this is definitely

something the agency is working to fix, and I’ve tasked my officers to make sure

where there is a youth who is under the protection of the chief executive inside a

youth detention centre that it’s absolutely essential that a caseworker visits. Now,

the issue there is for how long the young people are inside – inside those youth 25

detention facilities as well. So there’s a timing issue, but regardless those contacts

should be made, and so I acknowledge that we need to improve there.

COMMISSIONER WHITE: There is – it’s not directly on point, Mr Callaghan, and

I apologise for going away from no doubt your well-structured questions for Mr 30

Davies. But it did seem to Commissioner Gooda and I that it is very disruptive, for

proper government, to have so many administrative changes within Government

where you’ve got people being moved from one ministry and department to another,

and that’s happened a lot, hasn’t it, for this cohort of workers who have been broadly

in the field of child protection and, to some extent, with respect to youth justice but 35

much less so, even though I think they went from Attorney-General’s to Corrections

and now they’ve come to Territory Families. So this is very disruptive, isn’t it?---It

has been a challenge. It is, Commissioner and the other part of this what

Government has done now is created an agency that has got scale. So if you have a

look at it in raw numbers, we have got 900 employees, about 780 full-time 40

equivalents. Our budget is $286 million. In terms of the way you categorise

agencies around scale, it goes to health, then it goes to education, it goes to police.

As the chief executive, sitting outside of a small agency, I was in education and lands

planning and environment, which was called child protection, it was a small agency

very focused on child protection issues, and it didn’t have scale and size. So those 45

changes, I think, have now – by pulling them together, have led to a great

opportunity going forward around making sure that those movements, and those



constant changes, don’t occur into the future. So my job is to take a future view

about this, to make sure we’ve got the right arrangements in place and the right plan

to sustain Territory Families, and to sustain those connections that we’re now

making. Mr Callaghan is making the point that some of these connections aren’t

perfect yet, and I acknowledge that. But by pulling it together into an agency that 5

has got scale, where you have connected our youth outreach officers, our family

intervention programs, our child protection system, and our youth justice system

together to support young people so that we can get in early – and families at risk is

really, really important. And, Commissioner, if we go to that – and my final

statement sort of goes to that. I guess the analogy I use is that if you go into the 10

Board of Inquiry report it references a recommendation around Territory Families or

a child protection presence in what were then 20 growth towns. So in a regional

context. What I want to do, and what we are working on, is driving a regionalised

system which means that Territory Families in places where there’s a big school, a

big police station – I’m talking in remote communities – and a big health clinic. We 15

need to be in our regions. That will help us work with community. They need to be

Aboriginal workers – family workers, by the way. It will help us understand the kind

of – the mix of families, the extended mix of families. It will help us in that space

around getting in early around kinship carers. At the moment a lot of my staff are

aggregated into Darwin and Palmerston, and we need to distribute the workforce to 20

where the needs are, and part of that is around a regional focus, but it’s also about a

Territory Families focus in those smaller communities that are still large

communities, and in some of those we don’t have a presence: it’s fly in, fly out.

Well – no, you go first. 25

COMMISSIONER GOODA: I was just going to say, given – if I can just

concentrate on the – if you like, the head office structure, how important is it to

maintain some stability? And if we are asked for recommendations, what would be

the minimum time you would say we have got to go with the structure that we end up 30

with to allow it to settle?---Sure. So I think that’s a good question. So one of the –

in talking to APO NT, in talking to Danila Dilba, there’s anxiety around doing things

quickly, but there’s also anxiety around doing things properly. And my experience

in Government is if you are going to do that, Commissioner, you actually need a

really good plan that Cabinet signed off on. In Northern Territory we need 35

Australian Government support for that. You need to have the right structural

arrangements. Then you need to get a plan that is agreed with stakeholders. And the

other part that is really important to is it needs to have a decent budget and it also

needs to have the right legislative framework. So I think in some ways that frames

the work that you have been doing in many ways. And for me, stability is really 40

important, as we move forward and develop that plan. And, in terms of the structural

arrangement, both with the children’s subcommittee of Cabinet, but also the chief

executive’s cluster around Territory Families and Children and Families, we’ve got

the right administrative arrangements now, that are in place for a minimum of

another three to four year period. Then I think we’ve got the right structural 45

arrangements, which didn’t exist before when other inquiries were made, when other



reports were made, to actually start to really make a difference around some of these

very, very important issues for vulnerable families in the Territory.

COMMISSIONER WHITE: One of the practical problems, of course, that emerges

is the extent to which you will be able to recruit staff, or redeploy staff into your 5

regional centres?---Yes.

It’s a bit like sending a whole Commonwealth department from Canberra into

Tamworth or Armadale, for example?---So Commissioner I think it’s really

important that we need a plan and need to do this over time. And this isn’t saying to 10

people, “You’ve got to move or else.” The issue is we have got a statutory role we

have to play. The other part is how do we shift some of our resources and create an

Aboriginal workforce that’s about – at the primary end of the system, working with

families, that’s regionally located, that provides us with good intelligence around

what’s going on, good – so we can move in and put in support where we need it, 15

where we can work with our colleagues on the ground. I mean, there’s attendance

officers out on the ground, there’s assistant teachers who are Aboriginal health

workers on the ground. We need family workers on the ground. So to that end we

are working with the Commissioner of Public Employment to get in place a

consultancy that does look at what could a remote family worker look like in terms 20

of a job description and a job role in anticipation of the findings of this Royal

Commission, and it’s work we need to do as well as part of our reform process. In

terms of distributing our workforce, we are to the health department, I’m talking to

the chief executive of the Department of Health, Catherine Stoddart about maybe

sharing roles, maybe expanding the roles of people she has on the ground but 25

utilising some of her infrastructure so we are part of a health education footprint that

currently exists out there.

Certainly, a number of witnesses that we have heard from hold up the real success

story of the health clinics in many communities, which have been established 30

managing a training role for local people?---Yes.

As something that has worked and shows that it can work?---Yes, well absolutely,

Minister – sorry, Commissioner, absolutely. The other side of it, I think – I just want

to reinforce here that there’s the Aboriginal medical services as well. So part of our 35

broader discussion is we have got to get to that point where we are starting to talk to

those services as well. I think it’s fair to say we will always need a workforce that is

regionally and centrally located because there are issues where you do need, with

statutory obligations, to insert yourself into a family in what can be a very

confronting way. So the challenge there is how you make sure that the person who is 40

on the ground out in the community remains in a position where they can

constructively support a family, and where they’re not necessarily, in a statutory

sense, directly involved in the removal of a young person if that’s absolutely

necessary. So that’s the challenge at the moment, and if we’re flying in to try and

identify a kinship carer, after an incident has occurred, I would much rather be going 45

in where we know we have got a worker on the ground and that worker will

absolutely understand the cultural and the family context and be able to help us to



identify people who can provide kinship care, that are part of a broader family

construct, not just a nuclear family.

Back to you now, Mr Callaghan.

5

MR CALLAGHAN: That did go into one area that I was going to come to much

later, but I will – since you’ve mentioned the concept of Aboriginal staffing, I will

just ask you a couple of questions about that now. We understand there are a number

of Aboriginal staff in your department, but what about at a senior level? Would it be

right to say there are about 80 staff at senior professional or senior administrative 10

officer level above in Territory Families?---That are of Aboriginal decent.

No?---Yes. That would be right.

And how many would be of Aboriginal - - -?---I would need to take some advice on 15

that. I can say we have got 123 Aboriginal staff and, Mr Callaghan, it’s definitely

fair to say that most of those are at a very junior level in the organisation.

Yes. And so my question leads to whether there’s, on the horizon, some sort of

development of a program to get Aboriginal people into the professional 20

stream?---Absolutely, there is. So, Commissioners, one of the things we’re doing as

part of this broader planning process around getting an agency that’s robust and

sustainable going forward is around our workforce development strategy. And we

had a discussion at our executive leadership group about this yesterday. I’m sitting

in a room where I’ve got one senior Aboriginal executive officer who is now 25

currently – as of next week, will be acting in the position of the operational side, the

general manager of child protection, child protection services. So we have got one

person there in a room of 13 or 14 senior officers. It’s not the mix that we need to

have going forward, and that means we need to create opportunities internally for our

Aboriginal workforce to progress to a plan into senior positions. And so I talk at one 30

end around the remote workforce but administratively, in a senior context, we need

to have Aboriginal – an Aboriginal lens inside the work we are doing. 80 to 90 per

cent – 86 per cent, 90 per of our children who are in care are Aboriginal. And we

know exactly the same ratio and more applies in youth detention. We need to have

an Aboriginal lens inside our administrative structures. So we have got a plan and 35

we are developing it, but that’s absolutely going to be part of the future.

COMMISSIONER WHITE: You may have heard some of Sean Harvey’s evidence,

yesterday, the assistant – perhaps you were doing other - - -?---I was, Commissioner.

40

- - - important things, the assistant director-general of the department where youth

justice sits about the development of a first nations agreement which draws the senior

Aboriginal and Aboriginal and Torres Strait Islander members of that department

sitting at the executive level with them?---Yes.

45

And they’re staff members and that’s a great innovation in Australia?---It is.



I think it’s the first in Australia, but it is worth having a look at?---Thanks,

Commissioner. I will take that on board. I think the other thing I wanted to say in

this context is that we are working with APO NT. We seconded an officer across to

APO NT to work with them, and also with SNAICC, around – we’re going to be

doing some work around a strategy to plan and build and implement an Aboriginal 5

controlled out-of-home care sector. So that’s some early work we are doing with

them. So I want to make the point that there’s the administrative structures and the

personnel inside the agency, but part of the way forward here is about having

stronger relationships with Aboriginal organisations, and making sure that their input

and their feedback is also heard in those senior structures as well. So that’s going to 10

be important, going forward, for us. So it’s how we create those relationships.

Jeanette Kerr and I met with the NAAJA board last week, and had a discussion with

them about the issues that they saw as being important. They – it was a very robust

and helpful discussion. Continuing to meet with APO NT. We have certainly been

meeting with Congress and Danila Dilba. So those connections, as well, need to be 15

made. The point being there that we can’t do and build on this opportunity going

forward without taking out key stakeholders forward with us.

COMMISSIONER GOODA: That’s really encouraging. We had two groups: one

from Lajamanu, Kurdiji and Bunuwarra group from Maningrida. Do you see the 20

engagement of that community level with those groups who take a really strong

interest in kids as integral to going forward?---Well, absolutely, Commissioner.

What we are wanting to do, again this is part of the broader remit of us getting a

more regional focus. So traditionally our regional officers were solely about child

protection. So people would fly in and fly out and intervene with families. We have 25

got a different lens now: we are now a regional office, it’s about Territory Families.

So in the Arnhem context, linking our regional office, our senior officer, with those

stakeholders, in the Arnhem context at Maningrida, is really important. And the

other one was – what – was it Wadeye, did you say?

30

Lajamanu?---Lajamanu. Yes. So Lajamanu, that means the Katherine office. So we

want to have that interface there, but certainly you can’t operate in an remote – and

this goes to the Territory Families presence. I mean, schools out in remote

communities operate with a school council. There is local involvement in decision-

making, it’s a government commitment to get local involvement in decision-making, 35

so why wouldn’t we have local involvement around decisions for families? So – and

getting input about young people that need support and might need to be given some

additional guidance.

And we will be talking about that in our report, of course?---Yes. 40

But there’s a fair few communities that have come forward and saying, “We actually

want that relationship with government at a community level.” We understand the

organisation – at a community level there’s a great appetite for that?---There is,

Commissioner, and my sense of it is it’s across the services. So it’s about – part of 45

that is about making sure that when you are dealing with a family, you’ve got a

housing service. You’ve got an education service. You’ve got a health service. And



then we have got a family service. And the family service needs to be about support.

So I think part of that remit is about how we join things up so that we haven’t got,

you know, multiple services being delivered to a family in a disjointed way and local

input will help there.

5

MR CALLAGHAN: Separate sort of coordination. Ms Kerr told us you were going

to hire a senior person to coordinate with Aboriginal stakeholders in the co-design

and delivery of Territory’s programs and initiatives. Has that happened?---So what

has happened there, Mr Callaghan, is we’ve now got a Cabinet submission, or there

has been a Cabinet process by the Northern Territory Cabinet, where they’ve 10

approved the establishment of a reform management office, Commissioners.

They’ve funded the agency – or this reform management office for four years, so it’s

not something that’s just going to be started and turned off.

I’m sorry to interrupt you. Can we finish on that note?---Sure. 15

Because there’s a logical conclusion to – I want to come back to it, and conclude

with questions about that. I was just asking about that - - -?---In the confection of

co-design, co-design, if we are talking about out-of-home care services, if we’re

talking about co-design around kinship care work, if we are talking about co-design 20

around youth justice reform, then that’s work that needs to go in across the agency.

That person will be part of that reform management office.

So the answer to my question is that hasn’t happened?---No, not yet.

25

Alright. Now, just coming back to where I was, Commissioner White was kind

enough to note that there was a structure. I had taken you to the fact that there were

guidelines that weren’t being complied with, that there were policies that weren’t

being complied with, but we’ve also heard evidence that in respect to care plans at

least 250 of the children in care of the Department don’t have one and that, as a 30

result, section 70 of the Care and Protection of Children Act is being breached. Ms

Thompson agreed that the law was not being complied with. I understand what you

say with improved structure but I’m suggesting to you that this fact - - -?---Yes.

- - - is a clear instance of failure on the basis that a Government has to be able to 35

fund its own departments to comply with its own laws?---So Commissioners, the

facts are the facts, and I have to deal with the facts. So I’m not going to turn around

and refute anything that Mr Callaghan has just said there. But what I am going to

say is that one of the challenges we have is the number of caseworkers that are in

place, and the case workload, and I want to acknowledge that. It is a reality. So part 40

of what we are doing is going on – and it will be launched next week – a recruitment

program to try to, in an endeavour to recruit as many people that have child

protection qualifications in to deal with positions that are vacant. We are applying

some science to that, that will hopefully mean that the process to recruit is

successful. We have gone in and looked at areas through websites like LinkedIn 45

where there are a large proportion of qualified people and where there are big wait

times around jobs becoming available, and some of those are in regional centres in



New South Wales and in Queensland. We are going to have a targeted recruitment

program into there. So acknowledging the care plan issue, acknowledging the

caseload, we are going to work really hard to try to recruit people into the roles that

will help us deal with the care plans issue, and also reduce the caseload issue. It is a

challenge for the agency and I acknowledge it. 5

Alright. In the course of some of your answers you were giving earlier, you made

reference to the development of Aboriginal controlled out-of-home care service, and

I want to turn to the topic of out-of-home care. And I might actually at this point get

tab 16 on the screen. It’s a document I don’t think has been tendered yet, but it just 10

illustrates the point that we can speak to on the final page. The short point being

that, between 2006 and 2016 – there we go – purchased home based care has gone

from the smallest category of out-of-home care to the largest. And it’s also, you

would agree, by far the most expensive?---Certainly.

15

From your own understanding of your own Department’s budget, and your long

experience as a public servant, two questions, I suppose: is that trajectory

sustainable and even, forget the trajectory, is that level of spending

sustainable?---The answer, Mr Callaghan, is no. And we are trying to – and we have

got a plan to do something about it. One of the things I will say is that it’s a direct 20

consequence of some of the needs of the young people that are put into both the

resicare facilities and into home-based care. The challenge here is – and if I just go

to a little bit of the detail, then I will go back to the higher level – that if you’ve got a

really young child, putting them into a resicare facility, in my opinion, is not the best

option at all. So sometimes purchased home based care with a family is a better 25

option, if you are a younger child. So that’s part of the overlay, and the challenge

there is because the pool of kinship carers and foster carers isn’t large enough to

place many of these children. So part of the cost drive around purchased home based

care is, whilst it’s expensive the care environment, being home-based, is a better

option for many young people than the resicare facilities, which tend to have a 30

rolling workforce inside them where there might be workers that are Territory

Families that come in and out on shifts. So that being said, the issue for us here and

we have started work on this, is to do a good analysis of the 1050 young people in

care to work out where they’re located, the cost of the care, to see if there’s a better

way of doing that. But currently we have to have a better program of identifying 35

kinship carers and foster carers. It’s a big job, and this is not what we would want to

see. But keep in mind some of those kids that – young people, sorry, young children,

young people, that are in those facilities, particularly in the resicare facilities have

very complex needs. The challenge for me is sometimes they’re alone – when I say

alone, they’re in a resicare facility because they might have a disability, and they’re 40

being dealt with by a team and managed by themselves. My question would be, if

we got two or three young people with a disability, why wouldn’t we create a

resicare facility where we can put them together, where they can socialise, where

they can be looked after by a team, probably at a lesser cost but with greater social

outcomes as well? So that science hasn’t been applied until we’ve started to have a 45

good hard look at it.



Just before I forget, I will tender the document that’s on the screen. The .....

COMMISSIONER WHITE: Exhibit 648.

5

EXHIBIT #648 DOCUMENT RELATING TO PURCHASED HOME BASED

CARE

MR CALLAGHAN: You identify that it can be a better option, but that does lead to 10

the question of accreditation because there is no current specific accreditation

process for purchased home based carers; that’s right?---That’s correct, Mr

Callaghan.

Is that something that’s to be introduced?---It’s quite concerning and, 15

Commissioners, if we go to child care centres, there’s a national body that accredits

child care centres both around infrastructure and standards. We have been talking to

South Australia about the accreditation process that they are working on. We are

current returning an inspection regime both in our own resicare facilities and in

purchased facilities as well to make sure that we have the right infrastructure 20

standards and the right standards in terms of staff training and care, but there isn’t a

national system that we can link into in that regard at the moment. And I would like

to be able to say that in the future, that would be something that would be very

useful, if we could.

25

COMMISSIONER WHITE: It might be something that the Northern Territory

could lead on because, from the information that we have and the stories that we’ve

heard, Mr Davies, many of the children who go into the purchased out-of-home care

are children with challenging behaviours that can’t be placed in foster homes?---Yes.

30

And yet there is – what standard might be applied is for running a child care

centre - - -?---That’s right.

- - - where the children are expected not to demonstrate those kinds of difficulties.

And it just seems very concerning to think that they have no training to manage them 35

and that they might be managing several of them. Well, they don’t manage, of

course, from what we can see. So this might be something where the Department

needs to develop an initiative of its own to train people to do this?---Yes.

Commissioner, one of the things I am flagging with you is that we are starting a

conversation with South Australia around that sort of system. 40

Is that what they’re doing?---They’re in the process of looking at an accreditation

system down there. That’s part of their Commission outcomes, findings.

The Nyland Commission?---Yes, the Nyland Commission. So what we want to do, 45

this is all about scale and about standards, and so if we can join up and join in to

some sort of an authority that might be established to do this, we would definitely be



..... would definitely be interested. In the child care – in the child care space, it is a

nationally approved accreditation authority. I think this is a gap nationally, and it’s

certainly something that we will be talking to the Australian Government about and

to chief executives of families nationally as being an issue.

5

MR CALLAGHAN: In the meantime, in terms of inspections or check-ups that you

do, can you do that without the consent of the purchased home base carer?---Mr

Callaghan, we’re doing inspections on notification, we are also doing random

inspections outside of that. So if we’re purchasing that care, which we are, then it’s

absolutely our prerogative – and this is only a recent change – we are absolutely 10

doing that in the context of unnotified appearances. And I want to just emphasise

that the early work that was done around this was more about looking at the

infrastructure. We have now moved it to where it’s more in balance around

infrastructure and program.

15

Alright. And perhaps finally on out-of-home care, understand the commitment is to

outsource it to the non-government sector?---That’s the commitment by the Northern

Territory Government to do that within a seven year timeframe and there’s extensive

work that will be required here. We started some early discussions. We have

engaged some work, which is starting to work with the NGOs, the consultancies in 20

place, to deal with that. This is one of the areas where we got a flag saying we need

to do the design properly. APO NT are very keen to make sure if there’s Aboriginal

providers in this space, organisations that are providing, that they have the right legal

and health supports. So Priscilla Collins has spoken about making sure that if

organisations are going to go into this space then they need to ensure they’ve got the 25

right Aboriginal organisation capacity around them and that the full support of the

Aboriginal sector is brought to bear to make sure that it’s the best quality care

environment possible. So we think we will be able to do it earlier than seven years.

We also have to ask the question about whether we are going to be able to outsource

everything fully. 30

Yes?---And when it goes to high needs, high support, we’re still – that’s a work in

progress. But that’s definitely the intent of Northern Territory Government.

And does non-government sector include businesses with a profit motive?---That’s a 35

good question, Mr Callaghan. Currently, at the moment, there are for profit

organisations involved in that. That will depend, I guess – and this is – I’m only just

speculating here – on where this co-design gets to. And whether, in fact – I mean,

businesses and organisations need to operate with a margin, even NGOs need to. So

NGOs can’t run a deficit. They can’t. So the issue of for profit in this space is 40

something that will need to be looked at, and it would need to go to cost and

effectiveness. And it may be that if it was an Aboriginal-run organisation that was

for profit, you know, they’re things that we will need to look at, but that’s a future

discussion.

45

Alright. Can I ask you – can we turn to the way in which child protection matters get

processed and particularly processed through the court. We have heard evidence



from a number of sources about problems caused in the whole of the child protection

process through the lack of or limited availability of interpreters, and we understand

that it’s – that Territory Families has procedures about interpreters, but it would seem

there just aren’t enough for the procedures to be effective. Would that be a fair

comment?---That’s a fair comment. 5

So an increase in the number of trained interpreters is a priority, is it?---So,

Commissioners, this goes to the Aboriginal workforce and the remote Aboriginal

workforce. We have the interpreter service in the Northern Territory, which we – so

we need to be connecting with much more strongly. But, in terms of an Aboriginal 10

workforce both in a remote context and in an urban context, we do need Aboriginal

workers that are trained to be interpreters, because there’s an issue between being

able to speak in vernacular, Mr Callaghan, and being trained as an interpreter as well.

So there’s a process in terms of accreditation that people need to go through. So this

goes to the structure of this Aboriginal workforce that we want to have in remote 15

and, clearly, the intent would be to have people on the ground that can work with,

and across, the authorities out there to properly interpret issues that families are

presenting with so that the voice is heard and understood.

It seems to be a big issue in the way matters come before the courts, and in that 20

regard you, as CEO or your delegate, have a specific power to arrange a mediation

conference pursuant to section 49 of the Act. You can also make an application

under section 127, make an application to the court, for a mediation. The Royal

Commission has heard that Territory Families has a practice, in the main, of not

seeking mediation under section 49 and of opposing applications by parties for 25

mediation. Does that have any basis in policy?---Commissioners, in answering that

question, I can say that I haven’t approved any mediation processes since I’ve

started, but I’ve had none presented to me. And that’s one I will take on board to

check on, check into, but if that’s the historical context, it’s not something that I’m

aware of. But I can say that I have not approved any of those processes since I’ve 30

been in my role in the 10 months I’ve been there.

COMMISSIONER WHITE: I suppose the comment can be, if historically it has

been a policy not to do it then nobody will be putting it forward to do it?---Well,

that’s correct, and these are some of the practices we have got to undo and we have 35

got to get our workforce – and our very capable people, who are doing their best in

what always is going to be a challenging set of circumstances, we have got to give

them permission to come forward with those sort of solutions. And I think,

Commissioner, that will be helped as well by an Aboriginal voice in that context.

40

MR CALLAGHAN: You really do have to undo that one, don’t you?---Yes.

I mean, there’s no sort of litigation anywhere in the world that doesn’t benefit from

mediation?---Yes.

45

And there would be no difficulty, would there, in issuing a policy – it would be cost

free to issue a policy to say in broad terms to all your staff, “Can you just try



this”?---Yes. No, there’s absolutely – that’s something I will take on board, thank

you.

Okay. Thank you. I have a couple of questions about the structured decision-

making tool which was introduced into the Territory in 2011, well before your time 5

of course, but – in this position, but it was done so – it was introduced on the basis of

Californian data, and it was said that validation of the tool for the circumstances and

the environment of the Northern Territory was essential, and it was paid for in

2013/2014, but it would appear that the validation didn’t actually occur until 2017.

Was that something that you were on to?---There are quite a few instances of where 10

we’ve had reviews and work done, Commissioners, that have been awaiting some

firm direction. In this particular instance, I would need to take some advice on that,

Mr Callaghan, but - - -

One inference was that you were the one who fixed it, but you’re not going to take 15

credit for it?---No. Well, I don’t want – absolutely, so I think there are a number of

things that we have been working, as we’ve brought this new agency together, to get

in train. And so if you needed more detail around the specifics of how and when that

was turned on, I would have to take that on notice, and would be very prepared to

provide it further. 20

Well, it’s prima facie again another documented failure that the Department could

pay for something in 2014, not get it until 2017 and, in the meantime, use a decision-

making tool affecting the lives of children and families that’s based on unvalidated

Californian data. It would be suggested that’s a failing of the Department, but you 25

need to look into that?---I do.

Alright. I think you’ve agreed, or at some stage during your evidence acknowledged,

the need for a major shift in thinking not only in detention but also in child

protection?---Yes. 30

The current model of child protection, which demands that a statutory threshold be

crossed - - -?---Yes.

- - - is one that we heard Judge Becroft earlier today talking about the need to address 35

predicted needs and not be so reactive?---Yes.

You agree that there’s a mind shift that needs to occur in that regard?---I agree and,

to make that mind shift, you actually need workforce capability. You need, as well,

good programs that are evidence-based that work in terms of intervention and 40

support.

Exactly that, and as a very senior and experienced public servant who understands

how policy is adopted by Government, you would agree that the best thing to do is to

move in accordance with evidence-based advice of established independent experts 45

and advisors?---We definitely agree with that. And one of the things that I am tasked

with in this portfolio is to make sure that the resources and programs that are inside



the agency, in particular the funds that are allocated to the agency, this year it’s $286

million, up from $550 million last year, is spent wisely and on programs and

interventions that work. So we need an evidence base and we need a data set to

make those decisions.

5

I hope these questions aren’t too awkward for you, but as a public servant it is just

the case that your job is made easier if policy is apolitical and there is bipartisan

support and there aren’t changes with the political cycle. It makes a public servant’s

job easier?---It does, but inevitably, Commissioners, the winds and the cycles can

change. So part of my role as a chief executive is to take this opportunity, and when 10

I’ve had to deal with situations that can sometimes be impacted by politics and

changes in direction, the way that is dealt with – and I’ve dealt with in the past – is to

make sure that as part of that process you have agreed policy positions by

Government that are properly funded. So there’s Cabinet decisions around funding

streams. You have the right agreed legislative framework sitting around the 15

program. You have the right partnerships with your stakeholders, including the

Australian Government and you have a good plan that people buy into that can be

measured. So there’s a way, Commissioners, of managing through that environment

that can change.

20

It can change and, of course, you are subject to directions by the elected

representatives of the Northern Territory people. There’s no question about that, but

in addition to that, those representatives can contribute by helping to educate the

public about the reasons why those approaches and policies that you talk about are

being adopted?---Yes. And having working in the Territory for 40-odd years one 25

way of doing that is to make sure that you’ve done the work with stakeholders so that

they’ve bought into the change that is on foot and that they have a stake in it.

Because in the political domain, it responds to feedback from community. That’s the

role of that space. So you’ve got to make sure that you’ve got that support that

guarantees some sustainability going forward. 30

And the other level of cooperation, of course, it has to happen is across governments

and in particular in your case, with the Commonwealth. You’ve addressed that, I

think in paragraphs 24 to 26 of the statement we got a couple of hours ago?---Yes.

35

But the Commonwealth will be key to the success of reforms in this area; is that

right?---The Commonwealth are absolutely critical in this space. So, in terms of the

improvements we want to put in place and the reform that the Northern Territory

Government signed up to and agreed, the bottom line is that where we have had

major reforms in housing, in education and in health, we have always done it in 40

concert and in partnership with the Australian Government. So how we network and

partner particularly with the Department of Social services, particularly with the

Department of Prime Minister and Cabinet going forward both at the officer level

and at the government level is going to be really important to make the changes that

are on foot. The Commonwealth have large funding streams that they can allocate, 45

and sometimes that leads to duplication of services, and services that are not always

targeted based on where we think the best and the most need is. So getting that



engagement right, so that there’s strong buy-in and good planning, and making sure

that we’re reporting on the outcomes that are being achieved, is going to be really

important going forward here, both in the youth justice space but also in the families

and the child protection space.

5

Yes. And we have got your statement on the screen. Can we go to paragraphs 54 to

56, right at the end, because I’m going to conclude on the topic which I closed you

down on earlier, which is the reform management office that you speak about there.

I suspect this will be a topic on which there will be many further communications

with the Royal Commission beyond today, and so I don’t expect you to give us an 10

exhaustive account of it now, but perhaps if I could let you conclude my questions at

least by just telling us what this is, what it means, and how it might work?---Yes,

thank you for the question, Mr Callaghan. So Commissioners, this reform

management office has been approved by Northern Territory Government and it was

an as a result of a formal Cabinet submission to Government. It was – as a 15

consequence of some work that – we had a consultancy that was sourced through the

Department of Chief Minister, Ernst & Young worked with us around – they’ve

done work nationally on driving major reform, and had also done some work in

South Australia as well. So we worked with them and the cluster of chief executives

in Territory Family worked with them to design this reform management office. The 20

intent is that this office will take carriage, on behalf of the chief executives of health,

education, housing, police, Territory Families, Attorney-General and Justice and

treasury, and DCM, to make sure there’s proper project management around this

reform agenda so that the reports and the consultancies that we have talked a little bit

about don’t just sit on a shelf: that in fact they’re made live. So this office will be 25

reporting formally through the department of – through this Territory Families

cluster, through to the chief executives of the cohort, and also through to the

Northern Territory Government, regularly about the progress that’s going to be

made. And we want to have it ready, Commissioners, so that we can – and staffed –

so that we can begin some discussions with you, as you start to firm up the directions 30

around your report going forward, so that we can make sure that when the report is

officially announced, that we are ready to go and hopefully will have made the

connections with the Australian Government in particular. One of the things I want

to do is to talk to the Australian Government about their role in this office as well.

35

COMMISSIONER GOODA: Can I go there. We were told by Mr Tongue earlier

this week $700 million, thereabouts, comes to the Northern Territory just out of

Prime Minister and Cabinet. A bit of it go to the Northern Territory Government, but

the majority goes to community organisations, mostly NGOs?---Yes.

40

Does your Department have much input into where the money

goes?---Commissioner, at the moment no, and I think that’s one of the challenges

here. And the other part of this is for this reform management office is to make sure

that this work around co-design and engagement with Aboriginal organisations, as

we move forward around this reform agenda is going to be really, really critical. But 45

actually sitting down with Mr Tongue and with the DSS public servant that you had

in here as well for the future is really going to be an essential part of the way



forward, because the challenge here is that if you are a family on a community

receiving services, the architecture, and this goes back to the COAG trial that I

participated in at Wadeye, many years ago, as a senior public servant in education,

the person on the ground are really wanting governments to get their act together.

5

They don’t really care?---No. Exactly.

Do they?---So there’s some service delivery coordination. That is our big challenge

here is to join it up to make sure that families, where they need support and help, are

getting a coordinated service and that it’s not piecemeal. And I will just conclude, 10

Commissioners, there is nothing worse than – I think some of the issue here is that

the Australian Government, it’s about trust and about a plan, and if there’s a view

that one service area isn’t delivering well enough, then often the Australian

Government will also insert themselves and fund a provider as well. So this is about

building a trusting relationship in this area. So the education department has been 15

able to do with it the schooling sector. There’s a non-government sector, there’s the

education department. In this area, and in service delivery to communities, it’s very

piecemeal still at the moment, and a big challenge for us.

And the frustration of the public, the general public but more particularly the 20

Aboriginal communities, of seeing $700 million coming in here and it’s basically

spread across a whole range of services in an uncoordinated way. That just leads to

more confusion out there and I must say – you know, we confronted people who

were pretty angry about it. So how difficult do you think it would be? What –

coordination of government is always difficult, but how do you recommend you go 25

about this?---So, Commissioner, when we were involved in the Strategic Indigenous

Housing Program, Minister Macklin rolled her sleeves up with us – I’m going back –

this is a historical reference. She worked very closely with the then-Chief Minister.

We had collocated public servants working on the program, and we built 1000

houses in remote communities. There’s arguments about whether that was effective 30

enough and it led to the right employment outcomes, but that was a massive program

that rolled out and did deliver houses extensively, with purpose, into a remote

community. So it’s not impossible. I think the challenge here is about building good

plan that both governments buy into, that can then be networked with, or part of the

building plan is the buy in by the community, of course, but that planning process 35

around being clear about what resources are going in, so that there can be good

coordination, is an essential part of the way going forward.

And, no doubt, you mentioned before we will have conversations after

this?---Definitely. 40

And I think that will be the main focus of the conversation: how do we present this

coordination part of it?---And I think the RMO is part of the Northern Territory

Government getting on the front foot here so that we can really get organised to deal

with the recommendations of the Commission and the findings and the way forward. 45

We have got the broader strategic reform agenda on foot, as well, the Government is

.ROYAL COMMISSION 30.6.17 P-5420 K. DAVIES XXN

©Commonwealth of Australia DR DWYER

moving ahead with. It’s about local decision-making, about engaging with

community and we need the help of the Australian Government in this space.

Absolutely. Thank you.

5

MR CALLAGHAN: I had no further questions of Mr Davies. Other parties have

leave.

COMMISSIONER WHITE: Thank you. Yes, Dr Dwyer, I think you’ve got the

call. 10

<CROSS-EXAMINATION BY DR DWYER [12.24 pm]

15

DR DWYER: Mr Davies, my name is Peggy Dwyer. As you know I appear for

NAAJA, can I give you a correct – I may have misunderstood it, but at transcript

5417, you were asked about the funding for your agency and you said there are funds

allocated to this agency:

20

…this year it’s $286 million, up from $550 million last year.

?---Sorry, no.

Other way around?---Other way around, sorry. Up from 253 million last year, my 25

apologies.

Thank you?--- .....

And the Royal Commission has heard a lot of evidence, of course, about the increase 30

in the numbers of Aboriginal children in out-of-home care. One statistic that the

Royal Commission had was from Professor Silburn, you are familiar with his

work?---Yeah, definitely.

And he notes a steady increase in the number of Aboriginal kids in out-of-home care, 35

up from 147 children in 2000, 450 children in 2007 and then 1067 children in 2015.

You would agree with the suggestion that that’s a devastating statistic and a

devastating trend?---I agree with that analysis, absolutely.

And is it a priority of yours to reduce the numbers of children in out-of-home 40

care?---It is. And Commissioners, on the one hand – and it depends on the way you

view numbers and facts and statistics, so in terms of the statutory obligations of the

child protection area, the number of children in care has grown, and you could argue

whether that’s because of more interventions and whether that’s a successful

outcome. Clearly it’s not – clearly it’s not. So part of the challenge for us is getting 45

in earlier, but also having the capacity to get children – so it’s what’s going on inside

that number in terms of where the children are. What’s their situation? Are they in



foster care, are they in long term care, short-term care, are they with kinship carers,

are they in resicare or purchased home based care? So one – we need to reduce the

numbers by getting in earlier to support families. And the other issues is how do we

shift more of these Aboriginal children, 86 to 90 per cent of them in care, back into

the frame of being with family and kin. 5

So that’s the challenge you’re committed to addressing?---That’s right. Absolutely.

Just sticking with Professor Silburn, he goes on to say in that vein that the capacity of

the child protection to respond to the increasing volume will be unsustainable unless 10

there’s substantial investment in primary prevention and early intervention. You

agree with that wholeheartedly?---I agree with that wholeheartedly, Ms Dwyer – Dr

Dwyer, and part of the reform management office that I’ve just talked about, there

will be a director that will be coordinating primary intervention services.

15

So when you are discussing with the Commonwealth, going forward, how much

funding is required to what extent are you focusing on getting Commonwealth

funding for early intervention and primary prevention?---That will be – we have – so

there’s two things here, I think it’s fair to say, Ms Dwyer and Commissioners. One

is that we will need some support to build the architecture that we need to put in 20

place around youth detention and dealing with youth who have come into contact

with the youth detention system. So we will need some support around that. In

terms of the intervention services, we will likewise need to talk to the

Commonwealth about the programs that they currently deliver into the Territory so

that we can get better workforce design and better funding programs in place with 25

services that exist out there, and for new services that we might create, and that has

got to be on the primary end around supporting families early and keeping young

people who are vulnerable in families.

So the Aboriginal Placement Policy is at the centre of the commitment to kinship 30

care and reducing the numbers in out-of-home care, you would agree with

that?---Absolutely.

And it’s a challenge to ensure that staff at all levels across your organisation are

skilled and knowledgeable in how to implement kinship care or how to support 35

kinship care?---It – well, if you look at the numbers of kinship carers, we are able to

identify that remains a challenge for my agency as it stands at the present, and I think

this goes again to our capacity to be on the ground and actually work with families,

and have relationships with families. Sometimes – I understand that sometimes

Aboriginal families are reluctant to become kinship carers because it means a layer 40

of scrutiny that they – it’s an intervention, in effect. And so how we work with

families to make it a positive experience is really, really important.

I asked you about the work of Dr Christine Fejo-King and I had the opportunity just

before court started to show you her statement. I know you haven’t had much 45

opportunity to absorb it, but it’s certainly a statement you are interested in

absorbing?---Definitely.



And you understand that at paragraph 15 of her statement – perhaps if the operators

could pop that on the screen, I would be grateful – thank you – she notes that the use

of genograms by child protection agencies including Territory Families is

inappropriate when dealing with Aboriginal children and families. She goes on from

paragraph 19 onwards to suggest the need for a deeper understanding of the 5

complexity of kinship. I’m not doing her justice, but she gives an example: a need

for a deeper understanding of skin group. Would you agree that there’s room for

people across your agency to have a deeper understanding?---I think Ms Dwyer – Dr

Dwyer, I absolutely am committed to – having worked in the context I’ve worked in,

I absolutely understand the imperative there, and that’s part again of having an 10

Aboriginal workforce that will be able to help, particularly for child protection

caseworkers, to give them that context and to work around the extended family

construct that goes with Aboriginal families.

The Commission heard from Toni Eyles, who was an Aboriginal support worker 15

with the Department for around 10 years, she gave examples of where the system she

was working in as an Aboriginal woman made her feel culturally unsafe and

incompetent, and she gave an example of being asked to go into a community to do a

genogram, and given an inappropriate timeframe to do that?---Yep.

20

And that her non-Aboriginal managers showed a lack of understanding of the need to

build trust before you get to that issue. Do you accept that?---I do.

non-Aboriginal managers showed a lack of understanding to build trust before you

get to that issue. Do you accept that?---I do. 25

It doesn’t surprise you to learn of the evidence of somebody like Toni Eyles that

there’s a significant mistrust of the Department, known as “Welfare”, given the

historical context and the work they do?---The historical context, absolutely, is a

consideration and the issue of welfare and that being child protection, is absolutely 30

synonymous, Commissioners. You would have heard that. I’ve heard it. I

understand that that’s really a big issue, and that’s why I want to restate this again:

the Northern Territory Government has made a really important decision here in

creating an agency called Territory Families. If we can get this journey right, it will

reframe the construct around support and help, and take it away from intervention 35

and taking children away. So it’s about family, it’s about family support, and what’s

in a name? There’s a fair bit in a name. Child protection and welfare has got the

consequences, or at least is synonymous with children being removed.

Mr Davies, I’m going to show you some of the comments made by your staff 40

members, not to be critical of those, but to ask you to reflect on them. Have you had

the opportunity to listen to the evidence of your staff members before the

Commission?---I haven’t been. I mean, I’m running a big agency, so let me just say

that, Dr Dwyer.

45

Yes, I understand?---So there’s multiple tasks. Where I’ve – where I’ve been able to,

I’ve certainly tuned in and listened.



Could I have on the screen then, to assist you, transcript 4164. I’m going to take you

to the evidence – some of the evidence given by Ms Couch in Alice Springs. She

was asked by Mr Morrissey, Counsel Assisting, from line 38:

The Commission has heard a lot of evidence about what might be described as 5

endemic distrust on behalf of many Aboriginal communities, and then-members

of Territory Families and its predecessors.

I will stop there. That’s absolutely consistent with what you were just saying, Mr

Davies?---So I would need to understand the evidence base for that. I mean, in terms 10

of the things that I’ve mentioned before, you know, you would need to go to

specifics of communities and situations. So in terms of that being endemic distrust,

I’m not sure that that’s the right description. I would need to – I would need to

understand that terminology.

15

COMMISSIONER GOODA: We haven’t run across many people who praise the

welfare .....?---Yes, Commissioners, I – it’s fair to say – it’s fair to say that there is

distrust.

Yes?---And whether you would call it endemic – and there is distrust and that it does 20

need to change.

DR DWYER: I will just – I will just go down the page, then. So with that, what Mr

Morrissey goes on to say at line - - -

25

COMMISSIONER WHITE: Could I perhaps point out Mr Morrissey wasn’t giving

evidence, Dr Dwyer, although sometimes one might have thought it. So that - - -

DR DWYER: Yes, your Honour.

30

COMMISSIONER WHITE: Are you going to the witness’s evidence eventually?

DR DWYER: I am, your Honour. Mr Morrissey goes on to say:

Without entering into a judgment about that, you are well aware of that 35

perception on behalf of many in the Aboriginal community?

That was a fair thing to put, wasn’t it?---And who would he have put that to?

To Ms Couch who was at that stage – who was, at one point at least, the manager of 40

out-of-home care?---I don’t know how you can make that without making a

judgment.

Alright. I will take that off the screen. I’m asking you now, Mr Davies, whether you

were aware of the perception by many in the Aboriginal community of the distrust of 45

welfare?---It’s fair to say, Commissioners, prior to me coming into the agency – I

mean, I was of the chief executive of education, chief executive of housing, lands



and planning and environment. I’ve worked in Indigenous policy when I was in the

Department of Chief Minister as the deputy chief executive in there. I wasn’t aware

of the challenges and the level of – the level of architecture around this whole issue.

So I’ve been learning along the way. There’s no doubt about that. The number of

children in care, the number of notifications, everyone has been talking about this 5

escalating, and there’s no doubt that there’s a point in time where we absolutely need

to change things. So my observation here would be, in a historical context, I’ve

learnt from coming into this agency that clearly there were some deep concerns about

the direction that the child protection system was moving in, particularly without that

overlay of the primary intervention, the primary supports for families. Clearly, the 10

numbers are too high. And just as well I’ve learnt a lot about the youth detention

system. So Dr Dwyer, that’s about what I can say.

Mr Davies, I’m halfway through – I’m sorry, your Honour?---Sorry.

15

COMMISSIONER GOODA: And, look, we’re not – I’m not sheeting it home to the

– like, because Aboriginal people, and lots of non-Aboriginal people also talk about

welfare as this all-encompassing thing - - -?---Yes.

- - - that – and for lots of Aboriginal people it goes back generations to when people 20

were living on the excisions on cattle properties to the Stolen Generation, so it has

got a big historical context - - -?---It does.

..... welfare, and we have heard many stories about children being hidden when

certain people come into town, and all that sort of stuff. So it’s almost the point 25

where you’ve got to cut off that and say how do we go forward with rebuilding the

trust?---I guess that’s the point I’m making, Commissioner. And look, I’ve been

around long enough to know – you know, you see the Stolen Generation. You know,

you see families that are very, very wary of Government. You see poor attendance at

school. They are worried about what welfare or child protection officers might be 30

going to say about them. So this whole issue of trust is fundamentally one of the key

principles that we have got to adopt going forward is: how do we build trust?

Because the history – the history, and where we have arrived at with 1000 children in

care, 90 per cent of them being Aboriginal, is not a future that we want to continue

with. It’s just not. And it’s not sustainable, that means when you look at some of 35

those social determinants that sit around families. There’s a whole lot of work that’s

got to go on, not just in the early intervention area for families, but in health, in

education, around jobs and employment, so it’s a big, big task.

DR DWYER: Mr Davies, I’m going to try and ask you some short sharp questions, 40

because I’ve been given - - -?---Sure.

- - - my halftime notice?---Sorry – sorry .....

When you are talking about building trust, it’s absolutely essential that every level of 45

your Department, I’m suggesting to you, understands that historical context and



understands the significant mistrust. Do you agree with that?---I think it’s absolutely

essential, yes.

So what I was taking you to evidence from Ms Couch where she said she was aware

of the rhetoric and literature and research to suggest that there was a perception, on 5

behalf of many in the Aboriginal community about mistrust, but she hadn’t heard it

herself. And what I next want to take you to the evidence of Toni Eyles, an

Aboriginal community family worker, who said at transcript 4926:

When you are talking to families on the ground in communities, there’s the 10

historical stuff, there’s mistrust, the Department has changed its name many

times, but we’re also known as welfare.

And that message has to filter through to every level of your Department, doesn’t

it?---The change agenda absolutely has to filter through to every level of our 15

Department, and that message will be absolutely part of that.

You’ve given evidence earlier about the importance of the use of interpreters, and the

challenge if there aren’t enough interpreters, but you would have an expectation that

your staff members would understand the importance of the use of interpreters, 20

wouldn’t you?---We will have, going forward, and I think – so the issue for me is

how do you change those – how do you make those things live so that people can

actually see the change on foot? And one of the important things there is around

making sure that Aboriginal interpreters are being used, that you have an Aboriginal

workforce that’s heard and listened to, and that we have the right connections with 25

the kind of family structures that were outlined by Commissioner Gooda, at the local

level, so that you are absolutely in there early. And so this is a cultural change.

Yes?---But I want to make this really clear: the workforce I’ve worked into – walked

into, and I’ve been around to our regional office and listened to them, they are very 30

capable, and are very good officers. There is about a broader domain in a historical

context that’s going to take a while to redress and sort out.

Yes. Can I have on the transcript 46,111. Do you see there line 24, I was asking

Rosalee Webb, a worker in Maningrida – and please accept this is not a personal 35

criticism – the question asked is – just to put in context she was asked a

psychological assessment that was conducted with somebody who had limited

English. I said:

Ms Webb, do you accept that a psychological assessment might be something 40

different to a general conversation, so that in a general conversation somebody

might have good enough English to understand, but for a psychological

assessment and to explain its relevance you should have an interpreter

present?

45

Answer:



If the person you are assessing has a cognitive deficit, it doesn’t matter whether

you’re explaining whether you’re explaining it to them in English or in

language.

That’s a problem, isn’t it, that attitude?---The - - - 5

MS BROWNHILL: I object. I object to the question. My learned friend can ask

Mr Davies about these issues. To invite him to be critical, or reach a view or express

a view about the expression of these issues by another member of his staff, is neither

fair to Ms Webb – it wasn’t put to Ms Webb in this way. It’s not fair to Mr Davies. 10

My learned friend can ask the question. She need not frame it what is going to be

perceived as criticism by the CEO of a staff member.

DR DWYER: Your Honour, I press – I’m not asking Mr Davies to be critical of his

staff member. It is important to drill down to case examples, rather than generalities 15

or aspirational statements, and that’s what I’m attempting to do.

COMMISSIONER WHITE: If it’s just couched on the basis of an example rather

than anything else, I think it’s not an unfair question. It’s not really asking you to

pass on a particular employee, Mr Davies. It’s giving you an opportunity to say here 20

is a contextual instance. Does it not illustrate the point that Dr Dwyer is making to

you? That’s really the context, is it not?

DR DWYER: That’s precisely, thank you your Honour?---So, Commissioner, on

that basis, my view about that particular issue is that this would go to the supervisor 25

to how that was being run, but an interpreter should have been present.

COMMISSIONER WHITE: You can really put that to one side, about - - -?---Sure.

- - - line managers and things like that, just talk about the issue, I think, of a 30

perception that sometimes a person seems to be able to communicate in English but

when you have other situations, which are much more formal, it may need to be

revisited?---Absolutely. And my advice here would be given that situation, in a

general sense, would have been preferable absolutely to have an interpreter there.

35

DR DWYER: And so one of your changes will be to find out the level at which

your staff, across all areas, can actually understand cultural issues; correct?---It does.

And that’s why, Dr Dwyer, we are beginning work with Jane Lloyd around the issue

of a cultural capability framework. We want to make sure that we have got a

framework in place that we can operate and learn from, and that’s not something that 40

has been progressed in the agency. There was some work done in 2015. We are now

going to – we’re in the process of picking that back up. There is some very good

work from the health department around their Aboriginal cultural security

framework.

45



The 2016 to 2026?---Absolutely. So that’s something that we want to make sure the

principles inside that and the planned actions are what I would see as being excellent,

and that will be what we work through with my workforce.

You’ve anticipated my questions there, Mr Davies. You would be – that – you think 5

that’s a document that is an excellent tool for your agency to pick up and modify?---I

absolutely do.

It has, at page 26 to 28, a number of examples of cultural competency and then

suggests ways to evaluate them. And can I summarise briefly by suggesting that 10

involves talking to the Aboriginal community members themselves about how they

perceive the agency. That’s a good idea, isn’t it?---It is a good idea. And this goes

to the issue, Commissioners, of an evidence base to what you do. And I think this

framework makes it – the health department is very good at collecting evidence and

making sure that treatments that are administered have a really strong – and 15

interventions that are administered have a really strong evidence base, and those

indicators are something that we would definitely be looking at in the context of

some work we would be doing in Territory Families.

DR DWYER: Your Honour, I have got one discrete topic, and might I have a few 20

more minutes? I understand the difficulties.

COMMISSIONER WHITE: I think there are many coming after you.

DR DWYER: Yes, I understand, your Honour. 25

Mr Davies, you understand the constraints. I will fire through these. You accept, to

improve the outcomes for children, there needs to be a continuum of care from the

identification of kids in need right through to kids taken into care, sadly if they are,

or taken over by the Department, and then an exit strategy for when they 30

leave?---Absolutely.

One of the changes for the NT is the fragmentation of services – I think you referred

to it earlier when you said you don’t want multiple services for different family

groups. You are committed to working constructively with NAAJA - - -?---That’s 35

right.

- - - to see how the two agencies can support each other and their clients. NAAJA

has introduced to you the idea of an independent statutory authority to think about

and how that might improve service delivery in the Northern Territory. Is that 40

something you are prepared to look at going forward?---So, Commissioners, it’s

something that we have been given, I’m sure you have been given, and I know the

Territory Government has been given so that will go into part of the work we have

got to do together, going forward, and at the end of the day the establishment of a

statutory authority will be the decision of Government. So that’s – and, of course, it 45

will be my role to make sure it’s done properly and with the right stake holder input

if that’s a decision that is made by Government.


©Commonwealth of Australia MS GRAHAM

But whatever mechanism is chosen you are committed to integrating service

delivery?---The – assuming the – absolutely, in the context that, if we do this

properly, it will be an approved set of mechanisms by the Northern Territory

government that will make sure – and have the buy in of stakeholders that will ensure

its sustainability. 5

Nothing further. Thank you, your Honour.

COMMISSIONER WHITE: Thanks, Dr Dwyer.

10

MS BROWNHILL: Commissioners, in fairness to Ms Webb, can I just commend to

the Commission, the rest of her answer in relation to the questioning that Dr Dwyer

pointed to at page 46,111 of the transcript which included the answer that if an

interpreter had been available in that situation she would have used one.

15

COMMISSIONER WHITE: Yes, thank you Ms Brownhill. I think that

Commissioner Gooda and I are very alert to the totality of her evidence. She was

here for some time and was cross-examined rather than spiritedly.

MS BROWNHILL: Thank you. 20

COMMISSIONER WHITE: Thank you.

<CROSS-EXAMINATION BY MS GRAHAM [12.48 pm] 25

MS GRAHAM: Mr Davies, my name is Felicity Graham. As you know, I act for

CAALAS?---Sure.

30

You’ve acknowledged that the proportion of – or the number of children that are

Aboriginal and in out-of-home care is devastating. Critical to achieving a goal of

reducing the overrepresentation of Aboriginal children in the child protection system

is promoting kinship care and giving priority to strengthening connections to

Aboriginal culture. Do you agree with that?---I agree with that. 35

And critical to achieving that goal of reducing the overrepresentation is promoting

the participation of Aboriginal community controlled organisations and Aboriginal

children and parents in their communities in decision-making. Do you agree with

that?---I agree with that. 40

And critical to achieving that goal of reducing overrepresentation is, in a broad sense,

committing to achieving compliance with the intent of the Aboriginal Child

Placement Principle?---It absolutely is.

45

These – if we could have up paragraph 28 of your first statement, please, on the

screen. These are the child protection key areas of focus that you identify. First of



all, you acknowledge there that none of those critical things that you’ve just

acknowledged are mentioned in your statement. Do you agree with that?---Well, if

you’re talking about out-of-home care services, kinship care services are in that mix.

If we’re talking about reunification, that’s part of the work we will have to do along

with early intervention. So, look, the Child Placement Principle is not specifically 5

referenced there but – the Aboriginal Child Placement Principle, but that principle

underpins those areas of focus.

Do you acknowledge that a lot of work needs to be done by Territory Families to

demonstrate to Aboriginal communities that Territory Families is, in fact, committed 10

to reducing the over-representation of Aboriginal children in the child protection

system?---So, Ms Graham and Commissioners, this goes to the point that both

Commissioners have just made: I absolutely acknowledge that there’s a lot of work

to do.

15

You’re familiar with the work of SNAICC; that’s correct?---I am, yes.

And are you familiar with the work of SNAICC in relation to the aims and core

elements of the Aboriginal Child Placement Principle? And perhaps we could have

exhibit 599 up on the screen?---I am. 20

You certainly acknowledge, don’t you, that – if we turn to page 8 of that document,

please – that the principle is much broader than where and with whom an Aboriginal

child is placed? And it involves, to start with, preventing the removal of Aboriginal

children from their families and communities, and then the participation of 25

Aboriginal community controlled organisations and Aboriginal children, parents and

family members in decision-making. Then there is that hierarchy of placement and

then finally, the importance of maintaining connections with cultural whilst a child is

in care. You acknowledge that that is the appropriate broad definition of the

Aboriginal Child Placement Principle?---I do, Ms Graham, and that’s why we’ve 30

engaged SNAICC. That’s the Secretariat of National Aboriginal Islander sector

child care, in some work we’re jointly doing in Alice Springs, to work with

stakeholders on a strategy and a plan to build and implement an Aboriginal out-of-

home care sector with a specific focus on kinship care. That’s why we’re doing that

work, and those principles will absolutely be fundamental to that work. 35

One of the ways of demonstrating that you are committed to this as a priority is to

publicly report on your compliance with the various different indicators of the

principle. Do you agree with that?---I think, Commissioners, what we are doing is

developing a plan inside Territory Families. It’s a strategic plan that will cover 40

children in care clearly. And part of what we have to do is to – what we’re planning

to do is to report to our Minister quarterly on that plan. This is the agency’s work.

We intend to have, with that plan, a report that goes up publicly about the progress

we’re making as an agency around the delivery of the commitments that Government

has made. And I think, Ms Graham, it would be appropriate in that context to look at 45

those principles and see how we report against them.



The Commission has before it - - -

COMMISSIONER WHITE: It is usually the case that Ministers make public

pronouncements about policy, though, rather than departmental people. They don’t

get any of the glory?---Correct. 5

MS GRAHAM: The Commission does have before it previous annual reports of the

Department of Children and Families, or its various other forms, which reveal that

they don’t include any public reporting on compliance with the Aboriginal Child

Placement Principle. Do you – are you committed to that kind of reporting being 10

publicly available in the annual reports of Territory Families?---So, again, this is

based on the recommendations of the Commission and, in principle – in principle, I

don’t have an issue with that. But at the end of the day, the frame of how we report

against the reform that we put in place will be a decision that will be made by

Government and, in that space, whilst at the individual level I don’t have a problem 15

with that, I think that’s a decision that will need to be made in the context of the

broader reporting framework we will be putting in place around all the reforms we

have got in this area.

Mr Davies, I’m just going to ask you some questions now about child protection 20

litigation?---Sure.

You recognise the importance of the participation of Aboriginal family members in

that kind of litigation involving decision-making about the best interests of the

child?---Yes. 25

And that includes if those family members wish to join the proceedings as a party.

Do you acknowledge the importance of that?---Yes, of course.

And you wouldn’t tolerate a practice of Territory Families staff or lawyers 30

representing Territory Families actively frustrating the attempts of important family

members like grandparents or other figures from participating in the proceedings.

Do you agree with that?---No – yes, I would. I would agree with that, yes.

Are you aware in of a practice in Alice Springs of Aboriginal family members being 35

frustrated in the participation in proceedings by Territory Families?---No, I’m not.

That would be something that would concern you?---Yes. But I would need to

understand the case and I would need to have the facts in front of me.

40

You are certainly committed into looking into that and wiping out any kind of

practice that involves frustrating the participation of Aboriginal family members

being involved in proceedings?---Without understanding the specifics around that.

In principle, I would absolutely agreeing with what you are saying, but if it’s

referring – you are referring to that as happening generically then I would need to go 45

and ask what is going on. But as a principle, absolutely, I understand where you are

coming from and I wouldn’t condone that practice.



In answer to questions from Counsel Assisting, and from myself, and from Dr

Dwyer, Ms Marnie Couch refused to adopt the proposition that the 90 per cent

proportion of Aboriginal children in out-of-home care was an unacceptable level, and

she repeatedly gave answers in these terms, “I would prefer no child come into care,

Aboriginal or non-Aboriginal.” Do you acknowledge that that that kind of attitude 5

tends to diminish the experience of Aboriginal children and families in being

disproportionately affected by the removal of their children?

MS BROWNHILL: I object.

10

COMMISSIONER WHITE: Yes, I thought you might.

MS BROWNHILL: It’s an inappropriate question, it invites - - -

COMMISSIONER WHITE: Yes. I don’t think you need to go any further. 15

MS BROWNHILL: Thank you.

COMMISSIONER WHITE: I think that personalising – what you really want to

talk about is a systemic – what you think might be anyway – isn’t appropriate, Ms 20

Graham. Instead, you could couch it in a more general way as: if attitudes were

held by persons in the Department of this kind. That sort of thing. We don’t really

need to sheet it home to anyone. So could you reframe it in a more general way,

please.

25

MS GRAHAM: Thank you.

Mr Davies, you’ve heard what has been said. If there were attitudes that pervaded

the Department, or were held amongst staff members in the Department, that were in

the terms of preferring no children to be in care rather than acknowledging the 30

disproportionate effect on Aboriginal children, do you acknowledge that that tends to

diminish the experience of Aboriginal children and families as being

disproportionately affected?---So I’ve got to say this, Commissioners: I’ve been in

the Department for 10 months, I’ve never had that discussion. There has always

been ongoing concern about the number of Aboriginal children that are in care. 35

There’s concern about the numbers. There’s concern about the way we get people

back – we get young people, Aboriginal children back to family. There’s concern

about the growing numbers. I’ve never had a, “We must remove.” That whole issue

of driving the numbers up, and that being kind of an excuse for not understanding

impact on family and that sort of thing, that has not been part of the discourse at all 40

that I’ve heard.

COMMISSIONER WHITE: Thank you, I think that’s the answer that you can live

with, Ms Graham.

45

MS GRAHAM: Mr Davies you acknowledge that there needs to be a major shift in

thinking that there needs to be a cultural change in both youth justice and child



protection. The Commission has heard evidence from Vince Schiraldi, who’s a

former director of juvenile corrections in Washington DC. Did you hear his

evidence or read his statement?---No, I didn’t. I haven’t had the opportunity to do

so, Ms Graham.

5

Well, I will draw your attention to what he said and this is at paragraph 7?---Yes,

sure.

And I will just read it to you?---Yes, sure.

10

He said that:

To reform the detention facility itself, and to totally overhaul the culture of the

place was a difficult process and ultimately required all senior and middle

management staff to be replaced. 15

The Commissioners have heard from various other experts overseas about the need

to retrain staff but ultimately get rid of, either by way of sacking or the voluntary

departure of staff, in order to achieve major cultural shifts. Do you acknowledge that

there is going to be to need to be a process that may involve huge departures of staff 20

at senior, middle management level, front line level, if they are not coming on board

with the new way of thinking?---So, Commissioners, what I will say is this: as a

chief executive, what you do is you develop the plan, you make sure you’ve got an

evidence based system to putting in place programs, you reframe the agenda, get a

good budget around it. It’s the same messages. You take an organisation to scale, 25

and you get on the journey, and you make sure you stick to the plan. You reframe

the legislation, if necessary. And my experience is wholesale sackings are not,

absolutely, the way to go. What happens is, if you get a plan, people choose to buy

into it or they choose to get off the journey. That’s the way it works.

30

COMMISSIONER WHITE: Yes. I think that has actually been the evidence that

we have heard from particularly our overseas witnesses, where there has been quite

dramatic shift in direction for whatever policy it was, that this takes a long time, that

it requires a lot of training and, as you expressed it, there is either buy in or some go

elsewhere and in some cases some just can’t remain?---And that’s the nature of a 35

healthy organisation, Commissioner. And I think, you know, from my perspective

getting new people in does bring a fresh set of eyes. But to keep an organisation in

balance, you have to have people inside it that can tell you about the context and the

history.

40

Corporate .....?---So an organisation that loses its past completely – and I’m not

saying here, past practices, but loses that connectivity across the many changes

processes, in a human sense can sometimes think that ground zero started from day 1

and lose that historical context.

45

..... take over your questioning, Ms Graham.



MS GRAHAM: Mr Davies, you’ve set out one of the goals in your time as CEO of

Territory Families as increasing number of Aboriginal staff across the board?---Yes,

absolutely.

And the Commission has heard from a Mike Macfarlane, an Nyoongar Aboriginal 5

man from southern regional Western Australia, and who was the former

superintendent of the West Kimberley prison. He has given some evidence about the

need to rethink recruitment strategies to be able to attract and identify Aboriginal

people, and I will just read to you from part of his statement, which is the final

paragraph at letter H. He says this: 10

Regimented and formal recruitment processes, which are common in

Government, often deter Aboriginal people who would otherwise be interested.

Putting a CV in and facing a panel is an obstacle for someone who may have

obtained every previous job that they have had by word of mouth. It may be 15

better to send recruiters out to meet people face-to-face rather than calling for

CVs to be sent in.

You acknowledge that, to achieve an increased proportion of Aboriginal staff across

your agency, there needs to be a flexible approach to attracting and identifying 20

Aboriginal staff members?---I do. And if we just use the recruitment of the youth

justice – or the recent outreach officers. So that was a formal process and we ended

up with Aboriginal women and Aboriginal men applying to be part of that

workforce. It’s a fifty-fifty ratio, so at least half of that workforce is Aboriginal. In a

remote context, if you are going to employ people to work with families, then you 25

need people that are respected and trusted on the ground. So the reference point,

when you are seeking people for a job, as well as getting the right checks done, is the

community. And so I absolutely acknowledge and understand that. And,

Commissioners, that’s why we are engage with the Commissioner for public

employment around getting some work for – some work done around this remote 30

workforce and what it might like look into the future. Because the other thing is, if

are you employing people, you have to be able to give them a real job that is

sustainable and that guarantees continuity. Not just a part-time job or a job that stops

and starts. So the way you do that is to build it into the public sector structure and

make sure it’s properly developed and that it’s properly recorded so that there’s a 35

definition around the job role that’s understood. So from my perspective, that is

really important and imperative. The recruitment processes need to be done in those

communities.

Mr Davies, you’re committed to working constructively with CAALAS and other 40

Aboriginal community controlled organisations in Central Australia to advance the

outcomes for Aboriginal children and their families?---Absolutely, Ms Graham and

that’s why we have been working closely with Congress. We want to make sure that

they’re continuing to give us a hand in the Owen Springs youth detention centre.

That’s why Ms Kerr and also Ms Broadfoot have been meeting with CAALAS. We 45

have been hopefully having discussions about managing this issue of Owen Springs



and the fixing and make safe program. So that’s a commitment we will absolutely

continue to make.

Just while you mention Owen Springs, you acknowledge it doesn’t currently meet

the minimum standards for the detention of children?---I would – so in terms of those 5

standards, I would say that there’s work done that needs to make it the right amenity,

but there are young people there, and given it’s an old facility, it does need – we need

a new facility, but in acknowledging that it’s not safe, I’m not sure that I could go the

full way there, because that would imply that we can’t put people in there, and we

don’t have any other option at this point. 10

You mentioned - - -

COMMISSIONER WHITE: Are you getting near the end, Ms Graham?

15

MS GRAHAM: I am, Commissioners, and I can see a time limit is being applied to

me, which time is not yet up in terms of the allocated time to CAALAS.

COMMISSIONER WHITE: Thank you. I was just really asking whether you were

getting near the end. 20

MS GRAHAM: Yes, indeed.

Apart from the school classroom being in the centre of the facility and youth

designated the play area as being too small, what else in particular do you 25

acknowledge as being unsafe or inadequate about Owen Springs?---So what I would

say is inadequate about it is that it’s a facility where the capacity to provide

alternatives and amenity for young people is limited, and so it needs an expanded

perimeter. The areas that people can go into, to either look at a young person for

health issues or to do some counselling with young people, again, are limited. So 30

part of what we’re going to be doing is making sure that the infrastructure that is

inside that building is brought up to a contemporary standard in the same way we

have done at Don Dale. We are going to put in air conditioning. We are going to

make sure that there are no unsafe fixtures in the building. We’re going to – part of

the work we are going to do is bring in a classroom. Schools do it when classes – 35

when they need to grow, so a transportable classroom, we are looking at doing that.

We are also planning to bring in a building where we can – in a separate perimeter

fence where we can house young women if that’s necessarily.

Are toilets going to be installed in all of the cells?---Absolutely. Absolutely. 40

I’m told time is up, Commissioners.

COMMISSIONER WHITE: Have you finished the important topics, Ms Graham.

45

MS GRAHAM: I did have one further topic that I would like to address, if I may.



COMMISSIONER WHITE: One question. Maybe.

MS GRAHAM: It would involve a few questions.

COMMISSIONER WHITE: See how you go. 5

MS GRAHAM: The Commission has heard evidence about the demonisation of

children in the media and also in social media?---Yeah.

And they’ve received some information at a community forum about the Northern 10

Territory Police Facebook page which includes posts by the police that identify

children by photographs and name, that identify by comments children as being in

care, that identify children as being offenders or alleged offenders, that they should

be used as croc bait or that they should be mutilated by having their fingers cut off.

These kind of comments that are made. You acknowledge the harm that can be done 15

to children by these kind of public messaging about them?---I don’t know that the

police were providing that public messaging, Ms Graham. But in terms of the

response, absolutely, it’s not helpful.

And you’re aware that the Northern Territory is an outlier in Australia in the law 20

permitting the identification of children in relation to criminal conduct?---I am.

And it’s banned in other jurisdictions in recognition of the harm that is done to

children by that identification, you acknowledge that?---I do acknowledge that.

25

Are you committed to working with your colleagues at the police to conduct an audit

of all of the content on the Northern Territory Police Facebook page to ensure that

there are no posts or comments that are harmful to children?---Commissioners, I

would certainly be prepared to take that on and deal with it with the Police

Commissioner. 30

COMMISSIONER WHITE: Yes. You can do that as head of jurisdiction, can’t

you?---Yes.

MS GRAHAM: And to form some protocol to prevent the uploading of harmful 35

content and the removing of or banning of people who comment in a harmful way to

children?---I will definitely take that on board. Definitely.

COMMISSIONER WHITE: Thanks, Ms Graham. They were questions well asked,

weren’t they? They had an outcome. Alright, thank you, Mr Lawrence. 40

MR LAWRENCE: Thank you.

COMMISSIONER WHITE: I do believe you may have the privilege of being the

last counsel to speak in this public hearing. 45



MR LAWRENCE: I’m sure everybody will be delighted about that. In all

seriousness, I’m conscious of the time and it is lunchtime, and it’s not about Mr

Lawrence, it’s about my client who has been given a certain amount of time now to

ask questions. And I would just ask that I be given that amount of time to do that on

behalf of my client now. I know we’re all a bit - - - 5

COMMISSIONER WHITE: Yes. You have got 15 minutes to do that.

MR LAWRENCE: We’re all a bit peckish.

10

COMMISSIONER WHITE: And I’m sure you will do it.

MR LAWRENCE: Thank you.

Do you have any – my name is Lawrence, I am here to represent as counsel the 15

Danila Dilba Health Service. Do you have any professional background in the area

of youth detention?---Mr Lawrence, no, I don’t. But I have a background in

education and that’s my infield space.

How long have you been working here in the Territory as a high level 20

bureaucrat?---As a chief executive, eight years.

COMMISSIONER WHITE: But you’ve been in the Territory for a very long

time?---As a high level bureaucrat, so at least 20 years.

25

MR LAWRENCE: And you’ve been in this position as chief executive officer of

Territory Families now for, I think you said, 10 months?---That’s correct.

You’ve also got a position involved as the cluster arrangements?---That’s right.

30

Which is in order to promote cooperation between departments?---That’s correct.

And, of course, because of your experience, particularly say in education, that is a

convenient position to be in, in that sense, you would be aware of education

component in this equation generally?---It’s of critical importance, Commissioners. 35

So I’ve been given that role as the senior public servant. It’s not about my expertise

in a particular area. It’s because of my long experience as a senior public servant in

driving and informing major change and reform.

One issue that has emerged, almost indirectly but nevertheless is an issue, and that is 40

in recent times it has been publicised a large number of suspensions from school and

disqualifications from school. You’re aware of that issue?---So, Commissioners, in

relation to that, of course I understand that that’s a process that applies in schools and

suspensions are a part of the process that schools apply at the local level in terms of

dealing with student behaviour. 45



But would you area in recent times those numbers have increased quite

markedly?---I would need to - - -

MS BROWNHILL: I object to the questioning. I can’t see what it has to do with

Danila Dilba’s interests, which do not relate to education. 5

COMMISSIONER WHITE: Well, Mr Lawrence, are you going to make it relevant

to - - -

MR LAWRENCE: Well, that - - - 10

COMMISSIONER WHITE: Child protection and child welfare, in the broader

sense, of course encompasses education but perhaps – you know, you’ve got much

better questions, I think.

15

MR LAWRENCE: Yes, I have.

COMMISSIONER WHITE: You can put specific questions rather than speculative.

I mean, Mr Davies hasn’t worked in education for a little while, so perhaps you could

just frame the questions a bit more to where you are going. 20

MR LAWRENCE: Would you accept in recent times there have been an increase in

suspensions in the Northern Territory education system?---So, Commissioners, I’m

aware that the number of suspensions in schools varies from area to area, from

school to school. In terms of the overall number, I don’t have the facts in front of me 25

to be able to actually describe that as a current observation.

Okay, that’s fair enough. I will move on to another topic then, if I may. You would

be aware that in 2009 the then-Labor Government commissioned the Board of

Inquiry to look into the subject of child protection?---I am. 30

You would have – you would be familiar with the report itself?---I am.

It made 147 recommendations and they were all agreed to by the then-Labor

Government?---That’s correct. 35

What was your position then when that occurred?---When that occurred, it was 2010,

I was in the Department of Housing, local government and regional development.

When you were – sorry, when you were appointed in your present position did you 40

revisit that aspect of Territory history in this area?---You mean the child protection

review, the Board of Inquiry report?

Yes. Back then, they looked at this subject for the best part of a year, made 147

recommendations, had received submissions from the likes of the Department of 45

Health then, and the then-Labor government accepted all of them. So have you

considered all of that since you’ve been appointed the chief executive officer of



Territory Families?---In the context of the Board of Inquiry report I have read it, and

certainly looked at the recommendations inside it. So, Mr Lawrence that’s why –

and Commissioners, when you see recommendations in there like a regional presence

for Territory Families being in 20 communities, there’s some very, very good

recommendations in there that – and the strong recommendations around an 5

Aboriginal workforce strategy need be to be in place, it’s a very good report.

Alright?---And in the context of the work that we’re now conducting, in terms of a

plan going forward, those recommendations that were made will definitely be looked

at in the context of where we’ve gotten to. 10

So you’re going to look at them again, is that what you are telling us - - -?---Mr

Lawrence – Mr Lawrence - - -

- - - in 2017, you’re going to look at them again?---Mr Lawrence, we are going to be 15

looking at the recommendations coming out of this Royal Commission. We have got

an agreed – an agreed reform package or agreed reform structure that has been

signed off by the Northern Territory Government. They’re all a reference point, and

they will be valuable in that context, but my interest is in a plan on the way forward

to make sure that this Royal Commission’s recommendations and the new framing of 20

Territory Families is delivered.

Okay. Let’s go to youth attention directly, and let’s go out to the old Berrimah

prison, which is now Don Dale. Have you been out there?---Yes. I was there

yesterday, actually. 25

Have you been out there often?---I have, Mr Lawrence, yes.

Were you out there before it became Don Dale?---No. I had not been inside that

prison – before it became the Don Dale Youth Detention Centre? 30

Yes?---No, I had not been inside it.

I think your evidence today is there are 39 children out there?---35, I think – or 36

was the number, I think. 35

And that’s boys and girls?---There will be – yes. There some girls there, yes.

And out there is the high security unit, have you been there?---I have.

40

And the high security unit, how many children are in there today?---I don’t know. I

would have to get that information. I don’t have with it me to hand Commissioners,

and I wouldn’t expect to have that.

COMMISSIONER WHITE: I don’t expect you to know that. Mr Lawrence, ask a 45

question that has got some meaning for Mr Davies.



MR LAWRENCE: The high security unit is the ex-maximum security unit of the

ex-adult male jail?---That’s correct.

And the cells that are used are ones that were used is by ex-adult male

prisoners?---They were, but they’ve been modified and refitted. So that they have 5

air-conditioners now as part of that program, that they have new fixtures inside them,

and they have a clear view to an external – through a window, not through a secure

frame in terms of a grid.

Can I put to you straight up and down right now that this country, no developed 10

country, should have children incarcerated in what is a former adult male maximum

security section and indeed was derelict. What do you say to that as a chief

executive officer and guardian of children that are presently being housed there?---So

what I would say to that, Commissioners, is that’s why we need new infrastructure,

and that’s why we need a plan, and we need to be able to get on with as quickly as I 15

can.

Alright. Well, you’ve been in the job in 10 months. What have you done to get

children out of that facility? What have you actually done?---So, Commissioners, we

have worked with the judiciary very closely around the sentencing regime that 20

they’re using. We have worked very assiduously to look at some options around bail

support and bail supported programs. We have gone through and made the facility –

and I acknowledge that it was an adult prison. We have made it – gone through it

and reformed the – revised the amenity inside it, but I acknowledge it’s still an old

adult facility and we have done some preliminary work around the plan to at least 25

anticipate that we’re going to have the capacity to build some new infrastructure. So

we got a small review done, that gave us at least some context around the cost of a

new piece of infrastructure, but I want to emphasise this: the new infrastructure has

to be designed around a program. So we have to be clear about what the program is

going to be inside it. And I’ve been down and had a look at the youth training centre 30

in Adelaide, and I know you’ve been inside it as well, Commissioners. And that’s –

I mean it’s still, you know, a place where young people are detained, but it’s a much

more contemporary facility. The cost of that, I think, was $70 million.

COMMISSIONER WHITE: Much too big for the Northern Territory?---Yes, 35

absolutely, but in terms of scale and the infrastructure that’s inside it I would love to

have able to have something like that to hand to utilise as part of our broader youth

detention architecture. But, again, it’s early days and we have to wait to get your

advice around the programs that we might put in place and around the infrastructure

that we might put in place. 40

MR LAWRENCE: Well, my client puts to you, never mind about the

Commissioner’s advice, you should have got those kids out by now.

MS BROWNHILL: I object. 45

MR LAWRENCE: Why haven’t you?



MS BROWNHILL: I object on the basis this this, again, has nothing to do with Mr

Lawrence’s clients’ interests. It’s also antagonistic and Mr Davies has given

extensive evidence both written and oral about what has been done in relation to the

facility. Mr Lawrence is belabouring a point and, in my submission, getting

nowhere. 5

MR LAWRENCE: Well, I persist with the question. I don’t know how the learned

Solicitor-General can really assert it has nothing to do with my client.

COMMISSIONER WHITE: Danila Dilba. 10

MR LAWRENCE: Yes.

COMMISSIONER WHITE: And the health of children.

15

MR LAWRENCE: Indeed.

COMMISSIONER WHITE: Indeed, it does have - - -

MR LAWRENCE: And obviously they’re working out in that very facility. They 20

know what it’s like, why which is why they’ve instructed me accordingly.

COMMISSIONER WHITE: Well, there have been some measures put in place to

make it less oppressive, of course. I think Mr Davies has answered the question.

25

MR LAWRENCE: Alright. Well, you’ve answered it. You’ve been in the job 10

months. Have you done any work in getting the children put into Blaydin

Point?---We are working with the Australian Government around a review to have a

look at what youth justice infrastructure might like in the future. That’s part of the

work we are doing in getting a consultant in place to look at that. But Mr Lawrence, 30

in answer to your question, if the judiciary makes a decision about a young youth

then there has to be a place for them to go. So in that context of getting them out of

there, there aren’t other places for them to go at this point. So my job, in that

context, is to make the environment inside that facility as contemporary as possible

and as supportive as possible given the inadequacies that we all know exist. 35

What have you done about moving the children from the ex-maximum security male

adult facility into Blaydin Point, which is the Commonwealth facility for holding

families?---So, Commissioners - - -

40

Have what you actually done, tell us that?---Commissioners, if we are talking about

Blaydin Point which was the secure facility for asylum seekers, that was looked at

and ruled out in the context of it being a facility that would not be able to be

managed in a way where it could guarantee the safety of the young people in it.

45

COMMISSIONER WHITE: Yes. That is a suitable answer?---Absolutely could not

be.



MR LAWRENCE: Wickham Point?---In the context of Wickham Point that is some

work we are doing with the Australian Government, we have got a little partnership

going on, it’s – where we are going to be engaging a consultant to have a look at

what some of the architecture could look like for youth diversion programs going

forward. This is all part of working with the Australian Government, trying to get a 5

future lens based on the outcomes of this Royal Commission so that we have some

preparation done early.

Look, Mr Davies, you’ve been in the gig 10 months. Why haven’t you brought into

effect children – getting them out of the cells of killers, rapists, paedophiles - - - 10

COMMISSIONER WHITE: Come on, Mr Lawrence.

MR LAWRENCE: And putting them into Wickham Point?

15

COMMISSIONER WHITE: Mr Lawrence, will you please control your language.

MR LAWRENCE: Sorry.

MS BROWNHILL: And I object to the question. It has been asked and answered. 20

COMMISSIONER WHITE: It has, it has been asked many times.

MR LAWRENCE: Alright.

25

COMMISSIONER WHITE: And you really can’t continue to ask it. Could you

perhaps go on, on a more graceful note.

MR LAWRENCE: Courage is grace under pressure.

30

COMMISSIONER WHITE: And which of us, or who of us, is demonstrating

either?

THE WITNESS: So I think, Commissioners.

35

MR LAWRENCE: I try my best but bit beyond me but ..... beyond me maybe, at

times, but anyway I will try – I will try.


40

MR LAWRENCE: Staff training. What actual measures have you brought in to

improve the situation?---So, the new - - -

COMMISSIONER WHITE: Which situation, Mr Lawrence?

45

MR LAWRENCE: Well, the situation that confronted you when you got the job.



MS BROWNHILL: In relation to youth detention or child protection or both.

MR LAWRENCE: In relation to youth detention, yes.

COMMISSIONER WHITE: Youth detention?---So in relation to youth detention 5

and the training program – it’s not just about the training program, Mr Lawrence, I

think I described it – you weren’t in here earlier but all of the new youth detention

officers that have been allocated both to Owen Springs and to the Don Dale Youth

Detention Centre have been fully inducted and begun a course which includes

managing children with trauma, so it’s an enhanced course on the work that was 10

already begun whilst the youth detention centre was still under the Corrections

umbrella by the previous Commissioner Mark Payne. So it’s a build on that work, so

the training program will lead, over a 12 month period, to cert IV VET qualification.

We have brought in additional support for the superintendent of the Don Dale Youth

Detention Centre, to ensure that he can spend more time on the ground working with 15

his supervisors and his youth justice officers, and we have a range of services now

coming in to Don Dale and also Owen Springs, including Danila Dilba. In fact, I

was talking to their workers yesterday, Mr Lawrence, and they were there at the sally

port. There had been a fire alarm and they were waiting to go back in, and at no

stage did they indicate to me any concern for the young people. I did specifically ask 20

them at that point in time. So they were workers on the ground, they said that they

sometimes had issues in terms of the confidence of some people to engage with

them, and they referenced them as young fellows, young men and it takes a while to

build a relationship. That was the context of my discussion yesterday.

25

COMMISSIONER WHITE: Just a couple more minutes, Mr Lawrence.

MR LAWRENCE: Have you got – the situation I would like to ask you about is

kids being kept in isolation. Did you see the Four Corners program?---I did see the

Four Corners program. 30

And I take it you would be aware of the isolation regime that existed in the old BMU

in the Old Don Dale?---I was, absolutely and I’ve been and visited that facility as

well, along with the Commissioners.

35

Alright. Is it the case that kids are still kept in isolation in the Don Dale facility?---If

they are, there will be a specific reason for that occurring. So they will either be at-

risk or there will be an issue going on where they need to be separated from the other

youth. If that happens that requires the approval of the operational deputy chief

executive in my agency, Jeanette Kerr. 40

Have you watched and heard some of the evidence about the effects of isolation on

children that has been heard by the Commissioner’s here?---So, Commissioners, one

of the things I’m just referring back here to a particular incident just a little while

ago. One of the things I want to make clear here is whilst the young person being 45

looked after, and there was one particular issue around an individual that needed to

be managed, the approach by the superintendent there was to find a youth officer that



that young person engaged with really well, and then to put that youth officer into the

space with them. So – and of course we have got this issue now, in terms of

management, we’ve got much better CCTV coverage than we had before and record

keeping, so where there are issues raised with us by the Children’s Commissioner

around isolation and so on, we can really now take a very forensic view of what has 5

actually happened and what has transpired. So I’m not saying that this doesn’t

happen, but I’m saying when it does happen we’re trying to manage the situation

much better than we were in the past, and to defuse the situation and get the young

person back in with their youth colleagues as much as possible, as quickly as

possible. 10

Just one last point. The Board of Inquiry that was set up in 2009, reported in 2010,

and at that time child protection was housed in the Department of Health?---That’s

right.

15

And then as a consequence of the board’s report back then, it became the office of – I

think it became the Department of Children and Families?---That’s correct.

And it actually became part of the Department of Education when you were the

CEO, is that correct as well?---No. No, I was not the chief executive, I think I’ve 20

said where I was. Gary Barnes was the chief executive.

Right. But it did become part of education for a while?---I think – I think it did for a

while and that occurred as a consequence of the decision of the then-Government.

25

And then it became the Office of Children and Families under the CLP government

which came in in 2012?---So as I understand it, Mr Lawrence – I would need to go

back and check but I think the decision to put it in with the Department of Education

was made by that Government.

30

The Labor Government?---No, by the - - -

The CLP?--- - - - CLP.

Okay?---So it had come out of the health department to a stand-alone agency. There 35

was then a decision to put it in under education to put it in that space, in a similar

vein to some other jurisdictions, they’ve got those departments paired together.

Others do it differently.

Then it became Territory Families?---So it was a standalone agency, that’s correct. 40

And your evidence today, in 2017, is that you think this Government has made a

really important decision in creating an agency called Territory Families?---I think it

has, absolutely. And I will give you the reason, Commissioners, and I think I’ve said

this before, but - - - 45

.ROYAL COMMISSION 30.6.17 P-5444 K. DAVIES RXN


Well, before you give the reason, let me put it first: I suggest to you there is nothing

important at all about it?---So - - -

Just another name?---So I would suggest to you, Commissioners, that that’s not the

case. And - - - 5

COMMISSIONER WHITE: I think you gave your answer much earlier about this

topic. I’m not sure you were here, Mr Lawrence at the time, but perhaps you might

need to repeat it in order to answer Mr Lawrence’s observation?---Okay. So – so this

is part of a broader reform agenda that the Northern Territory government signed up 10

to, Commissioners. They’ve appointed a Cabinet subcommittee of children. The

children’s subcommittee of cabinet is chaired by the deputy Chief Minister. There

are a range of Ministers on that that have direct responsibility for services delivered

to children. They have created some architecture where chief executives are now

required to work together around Territory Families and children, and I chair that 15

committee. Bringing Territory Families together is part of that architecture, and this

goes to some of the earlier evidence around caseworkers connecting with young

people who are in youth detention. It’s about bringing the agency together, giving it

scale, and making sure it has got status in the Government context to drive the

reform that requires connection across education, health, police, law, Attorney-20

General and justice, and it needs to be properly funded so treasury is there as well.

And they’re walking with us on the journey with a view that this is investing for the

future. It’s not a bottomless pit. This is about creating a different footprint for

services to vulnerable children and families in the Northern Territory. And that, I

think, has been roundly supported by a big increase in Territory Families’ budget this 25

year in a very tight budgetary context.

COMMISSIONER WHITE: Thank you, Mr Lawrence.

MR LAWRENCE: Nothing further. 30

MR CALLAGHAN: Nothing from the Solicitor?

MS BROWNHILL: No.

35

<RE-EXAMINATION BY MR CALLAGHAN [1.35 pm]

MR CALLAGHAN: Just one small point. We didn’t dwell on the 40

infrastructure?---Sure.

Because there was so much going on, or so much to consider I should say, but in

questions from Mr Lawrence you did canvass about what things might look like in

the future. I’m not asking you to commit to anything but, for illustrative purposes, 45

you would be aware that this Commission has heard a body of evidence about the

need for, or the desirability of small-scale therapeutic home-based environments.

.ROYAL COMMISSION 30.6.17 P-5445 K. DAVIES RXN


That’s the type of thing that will go into the mix of measures that you might

consider, just as an example?---It is, Mr Callaghan, absolutely. I think – so it goes to

the scale and the size of what you need to put in place. I think just understanding

that, in a regionalised context, the challenge will be getting the right services into the

young people, particularly if there’s highly skilled services that are needed. So it’s 5

how you construct the architecture around that to make sure you can source the

professional support as well as the family support you need. So that’s about scale

and about how you manage it. I think we all acknowledge – and even in talking to

Mr Goldflam down in Alice Springs, we had a discussion with the Tangentyere and I

think Congress were there, we were talking about – there are some young people that 10

the judiciary is going to require to be detained. So it goes to the numbers and scale

and then the architecture around that. So we are really – and we got the message

early, Commissioners. I think you were a bit concerned that we were getting ahead

of the game. We’ve listened.

15

COMMISSIONER WHITE: Thinking too big?---Yes. And so I think – and we

heard that message loud and clear and so did the Government. So we have done

some early work, we have got some models around, and we have set aside initial

funds to begin discussions with the Australian Government, but that’s where we are

up to at the moment. 20

MR CALLAGHAN: I have nothing further. Can I tender the two documents

referred to by Dr Dwyer. The Northern Territory Health Aboriginal cultural security

framework, 2016-2026.

25


EXHIBIT #649 NORTHERN TERRITORY HEALTH ABORIGINAL

CULTURAL SECURITY FRAMEWORK, 2016-2026 30

MR CALLAGHAN: And the report of the task force on the child and family

support agency of July 2012.

35


EXHIBIT #650 REPORT OF THE TASK FORCE ON THE CHILD AND

FAMILY SUPPORT AGENCY OF JULY 2012. 40

MR CALLAGHAN: I have nothing further.

COMMISSIONER WHITE: Thank you. Because this afternoon we have personal 45

stories and closed court, Commissioner Gooda and I thought that we might make a

few remarks to mark the enclosure of the public sittings. Mr Davies, you’re free to



step down or you can stay there if you wish?---I’m happy to stay here,

Commissioners, if that’s okay, very happy.

<THE WITNESS WITHDREW [1.38 pm] 5

COMMISSIONER WHITE: Thank you. So today marks the final day of public

hearings of this Royal Commission and Board of Inquiry into the protection and

detention of children in the Northern Territory. Since our first day of hearings on 11 10

October 2016, we have conducted seven sets of hearings here in Darwin and in Alice

Springs. During these hearings we have heard much evidence from those involved in

both the detention and protection of children in the Northern Territory. Over 200

witnesses have given evidence before the Commission, including over 40 vulnerable

witnesses. In addition we have received, in written form, 430 personal stories. 15

The evidence gathered in the public hearings has provided valuable insights into the

failures that have occurred in both detention and protection. That evidence has

challenged us to find a way to manage young people in crisis which finds its

expression in antisocial and criminal behaviour, and ensure the safety of the 20

community, and allow all children to be safe and nurtured. Some of the evidence in

the public hearings has been both confronting and speak to the challenges that face

children and those charged with their care, both in protection and detention. At the

same time, we have also heard evidence that gives cause for optimism, particularly

for those working on alternatives to the existing detention and child protection 25

models.

Even though public hearings end today, we are still gathering documentary evidence.

We have received over 400 formal witness statements, thousands of documents in

response to notices to produce, and over 300 written submissions from individuals 30

and organisations. Our ongoing work culminates when Commissioner Gooda and I

hand over the final report of the Royal Commission into the Detention and Protection

of Children in the Northern Territory. This work will be completed well within the

operating budget, which has not been increased as a result of the move to a reporting

date of 30 September 2017. 35

I would like to thank all who have contributed to the work of the Commission

through personal appearance, written submission, contribution in meetings, and

through their own stories. The Commission has received generous assistance from

many experts from other jurisdictions, many of whom have appeared in our public 40

hearings, usually by video link. We are particularly grateful to those outside

Australia who have shared with us their solutions to many of the challenges which

have been revealed to be present in the Northern Territory. We thank them all.

Might we also thank the many lawyers who have appeared for particular clients

throughout our detention and child protection hearings. 45



They have added greatly to the Commission’s better understanding of many of these

issues. May we single out two: Dr Peggy Dwyer and Ms Felicity Graham,

appearing for NAAJA and CAALAS respectively. They have been consistently

present and their insightful and probing questions have assisted the work of the

Commission. While there is, of course, much work for the Commission staff to do, 5

we want to thank them for facilitating these public hearings so well. We would like

to thank Law in Order who have provided the technology to our hearings in both

Alice Springs and Darwin, the glitches have been remarkably few.

But especially we want to thank the transcribers here in Darwin and Alice Springs. 10

Their skill, dedication and good humour has been remarkable, working some days

from 8.30 am until 7 pm, not to mention the prevalence of some extraordinarily

speedy speakers. Finally, the Commission wishes to thank the Chief Justice of the

Northern Territory and the court staff for their hospitality in hosting the Commission

in this building. 15

COMMISSIONER GOODA: On the commencement of our task guiding this Royal

Commission, Commissioner White and I decided respectful engagement with all

parts of the Northern Territory community would be an integral feature of our

inquiry if we are to make meaningful change to those issues that led to our 20

establishment. This engagement has taken the Commission to numerous public

meetings, many round tables and targeted meetings with communities, workers,

advocates and individuals. Commissioner White and I attended many of these to

hear firsthand the issues confronting the Northern Territory in the areas of child

protection and youth detention, while our community engagement teams have been 25

key to ensuring the community has had the opportunity to connect with this

Commission.

The pursuit of best practice: in the pursuit of best practice there has been 43 site

visits here in the Northern Territory and other parts of Australia, as well as New 30

Zealand, whilst our staff have scoured world-wide for real life examples of other

countries for dealing with the issues we are looking at. As Commissioner White said

this week, we have seen many of those experts giving evidence from places such as

Ontario, Canada, Spain, the UK, New York and Ohio in the USA. All witnesses in

our seven sets of public hearings have contributed enormously to our understanding 35

of the issues that have led to the failure in both the detention and protection systems

here in the Northern Territory.

These public hearings have provided the opportunity for those most involved to have

their voices heard, including the children and families of the Northern Territory, as 40

well as front line workers, current and past, of the detention and protection systems.

Engaging with all of those has been central to the work of the Royal Commission,

and has supported our public hearings by enabling us to gather the valuable

perspectives on the issues that people see is relevant to this inquiry. However, as

participants involved with and observers of our hearings would have seen, some of 45

the evidence has been hard, distressing, and very personal.



Witnesses opened up to us some intimate parts of their lives, their struggles and their

challenges, but we also heard stories of resilience where, out of some of the most

desire circumstances, are families, children and young people who tell us they see a

brighter future. I join Commissioner White in thanking all of those who have

appeared in the formal sittings of this Commission. Of course, it’s important to 5

understand that anyone who is distressed by the content that has been exposed by the

Commission or the stories or information that has been told, can contact the free

helpline for support. This is available through Relationships Australia and Danila

Dilba, the details of which are on our website.

10

To the future, after these hearings: our engagement with the community will be

continuing, so it’s important to note that there is still time for any person or

community to tell their stories to us about those child protection and youth detention

systems. They can do that up until 31 July and information about how you can tell

the Commission your story is available on our website. Finally, like Commissioner 15

White, I would like to thank everyone who has assisted and has been involved in our

hearings: the court, the technical staff, and all counsel who have appeared and, of

course, their legal teams.

COMMISSIONER WHITE: We will resume at 2.30. Thank you. 20

ADJOURNED [1.47 pm]

25

CLOSED SESSION ENSUED

[REDACTED INFORMATION]

30

PUBLIC SESSION RESUMED

RESUMED [4.11 pm] 35

MR McAVOY: May it please the Commission, there is an additional matter which

has been listed for mention at 4 pm this afternoon. It relates to evidence that was

given by the former Minister, John Elferink, and also the evidence of Ms Josie 40

Crawshaw. Ms Crawshaw is represented by Mr Lawrence SC and I understand my

learned friend has an application with respect to recalling witnesses.

COMMISSIONER WHITE: Thank you. Yes, Mr Lawrence.

45



MR LAWRENCE: Thank you. Can I firstly say I’m indebted to the board for

recommencing at this late hour to hear this application and also to my learned

friends, particularly Mr Harris, who has made himself available to hear this.

COMMISSIONER WHITE: Thank you, Mr Lawrence. Although it is not as if we 5

were drawn away from Friday afternoon fun, we have got another witness to hear

from when we finish this application.

MR LAWRENCE: The board – I’m appearing on behalf of Ms Crawshaw to apply

that she be allowed to give evidence today, now, and it arises from the situation that 10

what happened was – and I must say that before I repeat what happened, often when

situations like this emerge in court cases where issues occur, one is loath to revisit

them, because that can sometimes ventilate and exacerbate what was perceived as a

problem, and notwithstanding that general approach I think it’s necessary on Ms

Crawshaw’s behalf to revisit the source of her irk. And it was when Mr Elferink 15

gave evidence on Wednesday, during his cross-examination, he gave this evidence

which was in fact not responsive to the question. It was at 5202.4. He said, “I

sought advice - - -”

COMMISSIONER WHITE: Can it come up on the screen. That would be helpful 20

for us to be able to see the whole run of the evidence, Mr Lawrence. So about line?

MR LAWRENCE: The line is – the point is 14, I’m never sure if that’s lines. As

you can see it’s 10, the question is at 10, about analysing it. “I sought advice from

the department”. 25

COMMISSIONER WHITE: Yes. This is in the context, of course of the statement

by Mr Elferink that SAF, T, was a massive waste of money, I think. Yes.

MR LAWRENCE: That’s exactly right. And I should have mentioned that. Thank 30

you. And he said:

I sought advice on that. And, by the way, I also spoke to Ms Crawshaw, if my

memory serves me correctly.

35

And he goes on and I’m paraphrasing, but please everybody read the whole thing.

He said this occurred in his office in December 2013, and he asked her what had

been done since her appointment, and he said she described there were a number of

governance issues and she conceded there were problems. Now, Ms Crawshaw

wasn’t here when that evidence was given. She was at home watching it assiduously 40

on the television, and she listened to in astonishment, and she was shocked, because

it’s not true. It never happened and so with one – by the way, Mr Elferink from his

evidence, your position is thrown ..... that she has conceded to him about problems

about governance issues.

45



COMMISSIONER WHITE: But if you go further down to about line 30, when you

were pressing for a date, that body of evidence is probably the source of the problem,

isn’t it, Mr Lawrence?

MR LAWRENCE: “I can’t recall the date”? 5

COMMISSIONER WHITE: Well, it says – if you look at line 30:

At about the time that briefing note I was shown before, which is, I think, late

2013 – she was the CEO, yes. Just to make sure we’re talking about the same 10

person.

At that time was Ms Crawshaw the CEO?

MR LAWRENCE: No. 15

COMMISSIONER WHITE: That wasn’t corrected with Mr Elferink. That’s the

really – that was the opportunity to correct it, wasn’t it?

MR LAWRENCE: Right. Well, he was told she was, I think, by your good self. 20

COMMISSIONER WHITE: Well.

MS McLAUGHLIN: No. But look - - -

25

COMMISSIONER WHITE: Well, I mean, it’s quite clear: Mr Elferink has but the

vaguest recollection, he remembers talking to a person whom he understood was the

CEO of SAFT, T. In fact, am I right thinking that was a correct recollection? It was

the CEO, but Ms Crawshaw did not happen to be the CEO of SAF, T at that time?

30

MR LAWRENCE: Well, I don’t know who he spoke to.

COMMISSIONER WHITE: If he was talking to the CEO at the time that he was

referring to, that is just before the defunding – that was the case, was it not? Is it

your understanding that Ms Crawshaw was the CEO right up until the time of 35

defunding or was she not?

MR LAWRENCE: I couldn’t really answer that authoritatively.

COMMISSIONER WHITE: You get some instructions, would you, from your 40

client.

MR McAVOY: I might be able to assist. As loath as I’m to interrupt my friend

while he is on his feet, but exhibit 614 which was tendered yesterday I believe, if we

could have that, tendered on Wednesday. Ministerial briefing from the Minister to 45

the acting deputy chief executive officer, refers at the third paragraph down, fourth

paragraph down:



On 6 November 2013 Ms Jane Wilson, acting chief executive officer SAF, T,

wrote to you and to myself requesting a meeting to discuss a relationship

between DCF and SAF,T.

So it appears from that there’s already evidence before the Commission to the effect 5

that Ms Crawshaw was not the CEO at the relevant time.


MR McAVOY: Thank you. 10

COMMISSIONER WHITE: Well, you are asking Mr Elferink some questions from

that document, I think, Mr Lawrence. Was that the case?

MR LAWRENCE: It came in that day, yes. And perhaps – and look, I could maybe 15

seen that and said, “That wasn’t the case, it didn’t happen.” But really the irk that

she has is that it was given in evidence. It’s inaccurate, it was wrong, and it has had

a large effect on her reputation, because a whole community have listened to

apparently her telling Mr Elferink these things which just didn’t happen. And what

she wants to do – what she firstly wanted to do was recall Mr Elferink, and clearly 20

that’s impractical, and we are being realistic. But what she wants to do is not place

in statements conceding that that was a mistake or whatever. She herself wants to

use the old adage, or the old expression that we use in court cases: she wants her day

in court, she wants to go in the witness box and fix it up properly, directly on her

oath just like she gave evidence earlier this month. 25

COMMISSIONER WHITE: Yes. Thank you. Thanks, Mr Lawrence. Mr Harris, I

really don’t know that we need to hear from you, because you’re probably only here

to say you don’t want Mr Elferink to be recalled.

30

MR HARRIS: Indeed, and I was advised of this yesterday, or last night, yesterday

afternoon, Commissioners, but our position is that there was clearly a

misunderstanding. It’s apparent from the transcript that when Mr Elferink gave

evidence, he made an assumption that the person to whom he was talking was Ms

Crawshaw. But it’s readily apparent that he wasn’t – he even raises on the passage 35

that you referred to, Commissioner White, just to make sure we’re talking about the

same person.

So it’s even in the transcript. We are perfectly content to accept that Mr Elferink

made an error about the identity to whom he was speaking. It’s abundantly clear that 40

it wasn’t Ms Crawshaw. So the position is as far as we are concerned, the matter has

been corrected. It has been corrected by Mr Lawrence. I’ve acknowledged it and

I’m happy to acknowledge it, it’s not necessary to do more. It has been done

publicly and the matter is fixed.

45

COMMISSIONER WHITE: Thank you. Yes, Mr McAvoy.



MR McAVOY: Commissioners, I will be brief. I oppose the recall of Ms

Crawshaw. The issue is one that appears to be – been resolved at the bar table, and

even if it hasn’t, there’s a statement that has been prepared by Ms Crawshaw which

deals with the issues, which, subject to some amendment, I would be happy to tender

and it would form part of the record. And given the time and the fact that the issue 5

as between Mr Elferink and Ms Crawshaw is – can in no way be described as central

to the issues before this Commission, I oppose the application.

COMMISSIONER WHITE: Yes, thank you. Mr Lawrence.

10

MR LAWRENCE: Just on her behalf, I do repeat - - -

COMMISSIONER WHITE: Not too often.

MR LAWRENCE: Sorry? 15

COMMISSIONER WHITE: I said not too often. Thanks, Mr Lawrence. I can

remember back five minutes.

MR LAWRENCE: I do repeat that she is fully aware of these logistical and 20

mechanical and literary suggestions that could alternative giving her sworn evidence

which she desires to do on this behalf. This isn’t arithmetic. This isn’t a slide rule.

This can’t be fixed up in that regard. She was greatly wronged on Wednesday,

greatly wronged, and she perceives with her family that the best way to fix that

wrong, not resolve it, we don’t want to resolve anything, we want to fix it, and she 25

wants to tell this Commission and the public that are watching and listening that this

just didn’t happen and that she has been damaged because of this. And she should be

allowed to do that. It’s going to take her five minutes. It’s not much to ask in the

scheme of things.

30

COMMISSIONER WHITE: Yes. Thank you, Mr Lawrence. Is the statement

prepared in a form that’s able to be tendered?

MR McAVOY: It’s not in a final form as yet. There are - - -

35

COMMISSIONER WHITE: What I was going to propose, Mr McAvoy, is that Mr

Lawrence be given leave to read into the record so that all of those hanging on the

words of this Commission can be – can hear the explanation, but not to call Ms

Crawshaw. Otherwise, there would be no end of recalling of people if we went down

that path. This is particularly so in the circumstances where it was quite open to Mr 40

Lawrence, on behalf of Ms Crawshaw, to confirm that that wasn’t correct. The

document that contained the correct information was already in his hands. It could

have been done there and then. It didn’t happen. It is not a grave error. It is a

mistake. And I don’t want to elevate it any higher than that. It was a mistake by Mr

Lawrence in not picking it up, and that’s all it was. 45



MR McAVOY: Commissioners, I have no difficulty with the course you propose. I

am just not certain that Mr Harris and Mr Lawrence are agreed about two words.

And perhaps if we could have - - -

COMMISSIONER WHITE: Well, why don’t you see if you can settle the two 5

words while we hear from the next witness. We can deal with it after that. And if

you can’t do it, well - - -

MR McAVOY: If I can just have a moment, I might be able to resolve it now with

Mr Lawrence. 10


MR McAVOY: I think we have a resolution, Commissioners.

15

MR HARRIS: I’m perfectly happy with that course, with the statement as amended,

Commissioners, and I don’t wish to be heard further.


20

MR LAWRENCE: That’s fine.

COMMISSIONER WHITE: Thank you, Mr Lawrence. Would you like to - - -

MR LAWRENCE: Yes. On behalf of my client, Ms Crawshaw, I would like to 25

read out her statement which states that:

On Wednesday, 28 June 2017 I watched from home the evidence of Mr Elferink

in the Royal Commission. During the cross-examination of Mr Elferink my

counsel, Mr Lawrence SC, put: “Do you concede that to the establishment in 30

order to protect children requires time, resources, effort to do all of these

things? Did you judge it? Did you actually analyse it?” To which Mr Elferink

responded, “I took and sought advice from my department, and by the way, I

also spoke to Ms Crawshaw, I think, if my memory serves me correctly. I asked

Ms Crawshaw to describe to me what had been done and she described to me 35

there were a number of governance issues and she conceded there were

problems.” “Where?” “My office.” “When did you meet her?” “At about

the time the decision was taken to defund it, namely December 2013. She was

the CEO.” “Yes?” “Just to make sure we were talking about the same

person.” 40

That assertion by him is incorrect. I never met with Mr Elferink at any stage. I

was stood down in April 2013 and sacked in August 2013. He didn’t become

the Minister until September 2013. I never met him. I could not give

instructions on it to Mr Lawrence SC until after his evidence. This incorrect 45

assertion of a meeting and claimed statements by me is capable of seriously

further damaging my reputation. It didn’t happen. I never met with him. I



said no such thing. I want Mr Elferink to be further questioned on this. I wish

this statement on this now to be placed in evidence. I am willing to be cross-

examined by Mr Elferink’s counsel or any other counsel in relation to this

statement. I give this statement promptly, with a sense of urgency for all

contingencies to be appropriately covered. 5

Dated 28 June.

COMMISSIONER WHITE: Thank you, Mr Lawrence. Thanks, Mr Harris, for

your attending here. 10

MR HARRIS: Thank you, Commissioners.

COMMISSIONER WHITE: Fortuitous that you happened to be in Darwin, I take it,

unless anyone thinks you were hanging around. 15

MR HARRIS: No, I had another matter here today, Commissioner. It just happened

to be convenient that I could still come and deal with this matter.

COMMISSIONER WHITE: Thank you. Right. Mr McAvoy, that concludes this 20

application?

MR McAVOY: That does conclude the application, and I understand that there was

one further matter for you to attend to, Commissioners, this afternoon.

25


MR HARRIS: Would you excuse us, Commissioners? We will retire.

MR LAWRENCE: It doesn’t involve me, so if I could be excused. 30

COMMISSIONER WHITE: Indeed, Mr Lawrence, and I did think this morning that

you were having the last appearance, but not a bit of it.

MR LAWRENCE: Thank you. 35


MR GOODWIN: Thank you, Commissioners. Two final matters. One the matter

of tender of certain material. And then secondly to introduce the final personal story 40

of the Commission. On the matter of tender, can I please tender three items. One,

from the supplementary tender bundle for care and protection, which is exhibit 515.

Can I tender the balance of those documents?

COMMISSIONER WHITE: Yes. Certainly, Mr Goodwin. They will be given their 45

various numbers in exhibit 515 as they appear on the index list and that will be dealt

with administratively.



MR GOODWIN: Yes, Commissioners.


MR GOODWIN: The second item is to tender the alternatives tender bundle. The 5

index has not previously been tendered so it will require a new number. I have

copies to hand up.

COMMISSIONER WHITE: Thank you. Exhibit 654 for the alternatives to

detention and child protection tender bundle. 10

EXHIBIT #654 ALTERNATIVES TO DETENTION AND CHILD

PROTECTION TENDER BUNDLE

15

MR GOODWIN: And then - - -

COMMISSIONER WHITE: Each of those items appearing on that index will be

tendered? 20

MR GOODWIN: Yes.

COMMISSIONER WHITE: Alright. Thank you. So, again, that will happen

administratively and they will all be given a sequential number. 25

MR GOODWIN: Of the one – of that exhibit number. Yes.

COMMISSIONER WHITE: Of exhibit 654 down to 654.038.

30

MR GOODWIN: Exactly, Commissioner. Thank you.


MR GOODWIN: And then the third matter is to tender 37 statements, which are to 35

be administratively assigned exhibit numbers. I have copies of the list of those

statements to hand up.

COMMISSIONER WHITE: Thank you. Yes. The statement of Kim Charles was

tendered either yesterday or the day before. Is there only one statement or is this 40

another one? I don’t wish to - - -

MR JACOBI: I can indicate there’s only one statement from Kim Charles.

COMMISSIONER WHITE: Thanks, Mr Jacobi. I’m pretty confident that we did 45

have it yesterday. Can I suggest we might just need to have a quick look again

through that list.



MR GOODWIN: Yes. I understand there were a further set of documents provided

by Kim Charles that were proposed to be tendered. It might simply be that we have

incorrectly listed what is to be tendered regarding Ms Charles.

COMMISSIONER WHITE: Alright. Thank you. So it might – we might just need 5

to check on that.

MR GOODWIN: Yes.

COMMISSIONER WHITE: But otherwise it looks as though these statements will 10

run through to exhibit 692.

MR GOODWIN: Thank you, Commissioners.

COMMISSIONER WHITE: But the interim numbers can be given to them 15

administratively.

MR GOODWIN: Yes, Commissioners.

COMMISSIONER WHITE: Thank you. 20

MR GOODWIN: I believe Mr Jacobi wants to be heard briefly regarding the tender

of material.

COMMISSIONER WHITE: Thanks, Mr Jacobi. 25

MR JACOBI: Commissioners, can I just foreshadow some documents that will be

coming to the Commission in due course which will ultimate be able to be tendered,

I hope, administratively, but I expect will take the Commission over 7000 exhibits.

But you will be aware that over the course of the last six weeks the Northern 30

Territory government had been served with 21 vulnerable witness statements and

with those it has received 19 adverse evidence notices and we understand that two

further of those notices are foreshadowed. The Northern Territory government will

deal with those matters as it were, on the papers, that is by providing documents.

35

What we wish to foreshadow is that we have – we’re providing those in two forms.

The first is by way of an explanatory note which the solicitors assisting have agreed

to receive as a submission. That is a document that identifies the matters raised by

the vulnerable witness in their statement, associates them with the systemic issue

which has been identified in the adverse evidence notice which has been provided to 40

the Northern Territory government, and then identifies from the relevant

documentary material which is being searched through by the Northern Territory

government, the information that goes to that.

The reason I rise is that we have, in the time since the hearings in Alice Springs, and 45

the Commission will be aware that we were served with those notices either shortly –

with that evidence and notices either shortly before that evidence or at about – I think



up to about a week before. We have provided, since that time, solicitors assisting

with explanatory notes and bundles with respect to eight of the witnesses that have

given evidence, seven of those were from the Alice Springs hearings.

With respect to the Darwin matters we are working on those at the moment. We 5

anticipate being able to provide the Commission with both explanatory notes and

bundles in a second tranche by the end of next week and then hopefully a final

tranche, and I don’t want to fix a date to this, but I would have thought within about

a fortnight of the 7th. So we anticipate being in a position certainly by the end of

July to provide - - - 10


MR JACOBI: - - - the full body of the – both the explanatory notes and the

associated bundles. We understand that we have agreement with the solicitors 15

assisting to tender the documents that form part of the bundles. We can indicate that

we have prepared those bundles by way of reference to doc IDs which are familiar

and relate to documents that have already – indeed, already been produced to the

Commission in due course.

20

COMMISSIONER WHITE: Yes.

MR JACOBI: But I can indicate that is the approach the Northern Territory

government is taking to that material. May it please the Commission.

25

COMMISSIONER WHITE: Yes. Thanks, Mr Jacobi. Well, I am conscious of that

because there are – some notices have just really quite recently gone out too so

there’s more material coming from you.

MR JACOBI: Well, indeed, and I think that there are – and I don’t say this by way 30

of criticism. I think we are still awaiting two adverse evidence notices to identify the

systemic issues to which we will ultimately need to produce both the explanatory

notes and the associated bundles, and I can indicate that the bodies of material

through which we are required to search are somewhat larger than they were even in

the youth detention context and the care and protection files are enormous - - - 35

COMMISSIONER WHITE: Yes. We understand that.

MR JACOBI: - - - and we are endeavouring to search through that material and sift

through it and deal with it in that way. May it please the Commission. 40

COMMISSIONER WHITE: Thanks, Mr Jacobi.

MR GOODWIN: Thank you, Commissioners.

45



COMMISSIONER WHITE: We are happy with that. And should it be necessary

then for any further exhibit identifying numbers to be given to this material, we can

do that administratively and the parties will be informed in due course. Thank you.

MR GOODWIN: And I should note that much of that material that might form part 5

of the responsive tender bundles might already be in the Commission’s hands as

number of notices to produce regarding certain vulnerable witnesses went out a

month or two ago regarding those vulnerable witnesses, and the Northern Territory

government continues to comply with those notices to produce.

10

Commissioners, turning to our final personal story for these public hearings, we will

hear from AH. AH is a former child in care who has previously spoken to the

Commission about her experiences. In Alice Springs, she told us that she estimated

the number of different placements she experienced during her time in care were

between 40 and 50. She described how, for a period of four years in care, she didn’t 15

attend school. AH also recalled how she had only been to the dentist once in the

many years that she was in the protection system. Today, AH tells the Commission

about her thoughts as to how the welfare system might be improved. She discusses

what she believes will contribute to a better system and her aspirations for the future.

If we could play AHs story. 20

COMMISSIONER WHITE: Yes. Thank you.

RECORDING PLAYED 25

MR GOODWIN: Thank you, Commissioner.

COMMISSIONER WHITE: Thanks, Mr Goodwin. I suppose 101 Dalmatians is a 30

good note to go out on.

MR GOODWIN: Indeed, it is.

COMMISSIONER WHITE: Thank you for your significance. I’ve given all the 35

thanks this morning, and Commissioner Gooda did his thanks. I think we don’t want

to lay it on too much. Right. Thank you. Nothing else then?

MR GOODWIN: No. Nothing further.

40

COMMISSIONER WHITE: Alright. Thank you. Just – yes. Thank you. We are

not adjourning.

MATTER ADJOURNED at 4.48 pm INDEFINITELY45



Index of Witness Events

TAMARA STONE, CALLED P-5378

THE WITNESS WITHDREW P-5388

ANDREW BECROFT, CALLED P-5388


KEN DAVIES, SWORN P-5399

EXAMINATION-IN-CHIEF BY MR CALLAGHAN P-5399

CROSS-EXAMINATION BY DR DWYER P-5420

CROSS-EXAMINATION BY MS GRAHAM P-5428

RE-EXAMINATION BY MR CALLAGHAN P-5444


Index of Exhibits and MFIs

EXHIBIT #646 PRÉCIS OF EVIDENCE OF TAMARA STONE P-5378

EXHIBIT #647 STATEMENT OF KEN DAVIES DATED 30/06/2017 P-5400

EXHIBIT #648 DOCUMENT RELATING TO PURCHASED HOME

BASED CARE

P-5413

EXHIBIT #649 NORTHERN TERRITORY HEALTH ABORIGINAL

CULTURAL SECURITY FRAMEWORK, 2016-2026

P-5445

EXHIBIT #650 REPORT OF THE TASK FORCE ON THE CHILD

AND FAMILY SUPPORT AGENCY OF JULY 2012.

P-5445

EXHIBIT #654 ALTERNATIVES TO DETENTION AND CHILD

PROTECTION TENDER BUNDLE

P-5455

Documents

TRANSCRIPT OF PROCEEDINGS · PDF fileTHE HONOURABLE M. WHITE AO, Commissioner MR M. GOODA, Commissioner ... And then lastly, just around our total overall number of youth justice,