TranscriptCreator - Web viewI hadn’t – I hadn’t personally noticed it in court. ... by saying that there’s an added dilemma that we ... and within each incident there’s more

AUSCRIPT AUSTRALASIA PTY LIMITEDACN 110 028 825

T: 1800 AUSCRIPT (1800 287 274)E: [email protected]: www.auscript.com.au

TRANSCRIPT OF PROCEEDINGS

O/N H-736401

THE HONOURABLE M. WHITE AO, CommissionerMR M. GOODA, Commissioner

IN THE MATTER OF A ROYAL COMMISSION INTO THE CHILD PROTECTION AND YOUTH DETENTION SYSTEMS OF THE NORTHERN TERRITORY

DARWIN

9.35 AM, WEDNESDAY, 14 DECEMBER 2016

Continued from 13.12.16

DAY 11

MR P.J. CALLAGHAN SC appears with MR T. McAVOY SC, MR B. DIGHTON, MS V. BOSNJAK, MR T. GOODWIN and MS S. MCGEE as Counsel AssistingMS S. BROWNHILL appears with MR G. O’MAHONEY and MR C. JACOBI for the Northern Territory of AustraliaMS T. LEE appears for AA, AB and ACMR A. HARRIS appears for Mr John ElferinkMR J. TIPPETT QC appears for Mr Ken MiddlebrookMR P. O’BRIEN appears with MS C. GOODHAND for Dylan VollerMR P. BOULTEN SC appears for the North Australian Aboriginal Justice AgencyMS F. GRAHAM appears for the Central Australian Aboriginal Legal Aid ServiceMR J. LAWRENCE SC appears with MR S. O’CONNELL for AD

.ROYAL COMMISSION 14.12.16 P-815©Commonwealth of Australia

5

10

15

20

25

30

35

COMMISSIONER WHITE: Mr Goodwin.

<RUSSELL ROMAN GOLDFLAM, ON FORMER AFFIRMATION [9.35 am]

<EXAMINATION-IN-CHIEF BY MR GOODWIN

MR GOODWIN: Thank you, Commissioner.

Mr Goldflam, before we adjourned yesterday afternoon, we were discussing some of your observations on youth detention in your statement. If I can go to paragraph 28 of your statement, and you refer to the impact of the Northern Territory Emergency Response, otherwise known as the Intervention, which led to the establishment of 15 new police stations and 50 additional police in remote communities.

COMMISSIONER WHITE: 18.

MR GOODWIN: 18, my apologies. And over the ensuing three years the number of NT youth traffic and vehicle convictions doubled. Where did that data come from?---I read that in the report prepared by Jodeen Carney who was commissioned by the, I think it was the Henderson Labor government – or it may have been the Martin Labor government, I can’t remember – to prepare a report about the youth justice – a review of the detention systems. Jodeen Carney had been a Minister in the former CLP government.

And you mentioned that you believed that this doubling of convictions was due in large part to increased policing. What’s the basis of that belief?---Well, out on communities, there were lots of police officers, where previously there hadn’t been lots of police officers, and they had a job to do, but often there wasn’t anything in particular going on except driving around in cars, and frequently those cars were being driven by people who weren’t supposed to be driving, or they were in a condition they weren’t supposed to be driven in, or they weren’t registered or whatever. But there has been some detailed study of this issue by a criminologist in Sydney, Thalia Anthony, who has published some work on the – not specifically on youth, but certainly looking at the dramatic increase, one could almost say an exponential increase in traffic prosecutions in remote areas of the Northern Territory after 2007, and there was no question there was enormous upsurge in prosecutions of traffic matters in remote areas, and Anthony’s analysis concluded that this was essentially because of the additional police.

And did you notice that increase occur in terms of the case load of the Legal Aid Commission in Alice Springs?---No, I didn’t. I first became aware of it when I went to a conference or a seminar and Anthony presented her findings. After she presented the findings and I was alerted to this, the penny kind of dropped, but it sort of crept up on us. I hadn’t – I hadn’t personally noticed it in court.

.ROYAL COMMISSION 14.12.16 P-816 R.R. GOLDFLAM XN©Commonwealth of Australia MR GOODWIN

5

10

15

20

25

30

35

40

45

But the Legal Aid Commission was doing – well, representing clients more often with those types of offences following the Intervention; is that right?---Well, not so much because the Legal Aid Commission is predominantly – almost exclusively in Central Australia, at least, where I work – works in the town courts, we don’t go to bush circuits except very occasionally, and this was an issue which may have been readily apparent to my friends at CAALAS or NAAJA, who were doing the bush circuit work, but I wasn’t aware of it myself, personally.

But through your involvement in a number of policy forums you were alerted to that change; is that right?---Yes. Well, I read Anthony’s paper with great interest. It seemed pretty compelling, she had gone and mined all the data from the courts and the police that were available on this issue, and then I read it further in Carney’s report, and that was a pretty authoritative document. So that was the basis for – behind what I put in that paragraph.

And you’ve mentioned that another impact on those convictions doubling was the fact that many traffic offences are excluded from the Youth Diversion Scheme. Are you aware of the policy reason for that exclusion?---I believe that the policy reason essentially comes back to road safety: that we’ve got three or four times the national rate of road fatalities in the Northern Territory. It’s notorious that our roads are particularly dangerous because there’s very large distances and a lot of poor quality roads. It’s also notorious there’s a lot of poor quality cars and poor quality drivers, so you put all those together and you get a horrible road toll, and there has been concerted efforts by governments ever since self-government, I would say, in 1978 to have tough laws aimed at preventing road accidents and in particular drink driving laws. So I believe that’s the reason that drink driving offences, for example, are excluded from the youth diversion scheme.

Do you agree with that exclusion for those reasons?---No.

Why?---In my view, the risks and harms that come from bringing a child into the criminal justice system outweigh the benefits to protection of the public by requiring all children who commit traffic offences of a certain type to be dealt with by the courts. It’s unusual for a first time traffic offender – except in an extremely serious case, for example where there has been a fatality from a road accident – to be sentenced to a period of detention. But going to court, having your licence disqualified, being ordered to undertake community work or pay a fine or be subject to some other sort of restriction on your liberty sets you up for breaches. Frequently, people are disqualified and then they come back with an offence of driving disqualified. The Supreme Court has made it very clear that the starting point for a drive disqualified conviction should be a sentence of imprisonment for adults. So you’re – you’re looking at custody territory once you get into the drive disqualified range of offences. So there’s a sort of a cascade of consequences for what can start off as a fairly minor traffic infringement. Also, if people have got fines, then they can be subject to – or their licences can be taken off them through the fines recovery process and that in turn can lead ultimately to an offence of driving disqualified. So it may seem like not a very serious thing to have to go to court to be dealt with for


5

10

15

20

25

30

35

40

45

driving, a minor driving offence but the consequences down the track can be very serious.

Now, yesterday, we discussed that there has been – this is in paragraph 23 of your statement – an essentially a 50 per cent increase in the five years leading up to 2013 in the youth detention population of the Northern Territory. Does that have an impact on, or have you seen that have an impact on the workload of the Northern Territory Legal Aid Commission over that period?---Yes.

What type of impact has it had?---Well, there’s – more and more of our work is taken up with appearing in the Youth Justice Court. Now, I can only speak from personal experience from the Alice Springs office of the Commission, and we’ve got offices in Tennant Creek, and Katherine, in Palmerston, and in Darwin is our biggest office, of course. So I’m not sure the extent to which the experience in the Alice Springs office, which is the second biggest office in the Commission – how reflective it is of our practice across the entire jurisdiction, but certainly in the Alice Springs office our Youth Court practice has increased substantially over the last few years. We have a team of five lawyers in our criminal practice in the Alice Springs office, and one of those lawyers is the designated youth justice lawyer, and about a third to a half of his practice currently is just appearing in the Youth Court. I mean, he does other criminal matters as well. And my impression – I haven’t gone back and mined the statistics, but my impression is that that case load has steadily increased over the last few years. We get a lot of referrals from Central Australian Aboriginal Legal Aid Service and that’s in part because it’s common for youth offending to be done by groups of young people together and when there are groups of young people charged together then they need separate representation from separate firms in many cases because there might be conflicts that arise.

And has there been a commensurate increase in the resources provided to the Legal Aid Commission to meet that increased demand for services?---We have had increased resources made available to the Legal Aid Commission. Our staff has increased over the last few years. I don’t think that has necessarily been specifically because it has been recognised that we have got more work to do in the youth justice area but fortunately, on the whole, our staffing levels have kept pace with the increase in work that we’ve been required to do in my office.

If I can turn to paragraph 35 of your statement, and you state that the detention system has operated in a state of crisis since at least 2014 and you mention that there were 12 documented serious incidents. Why, in your opinion, has it been – well, what do you mean by a state of crisis?---Well, we have got a situation where every month there’s a break out, or assaults on staff, or some sort of disturbance inside the – either the Alice Springs or the Darwin facility, and that’s what was happening in that calendar year, 2014. It was every month. My – I don’t think it’s an exaggeration to describe or characterise that as being a system that’s in crisis.

And do you think that is linked to the increase in numbers of young people in detention overall, in the five years previously?---That’s the inference I draw. I


5

10

15

20

25

30

35

40

45

mean, the facilities are of a – well, the Don Dale facility didn’t change its capacity, but the number of people in Don Dale increased. Similarly, the number of people in detention in Alice Springs increased and during – I can’t remember exactly when it was that the children in detention in Alice Springs were moved from Don – sorry, moved from Aranda House which was in the town area, the suburban area, out to the new centre which was built adjacent to the Alice Springs Correctional Centre, which was roomier. But just going back to Don Dale, if you’ve got a larger number of people incarcerated in the same space, there is more pressure. So I infer that the increase in numbers over that period leading up to 2014 got to the point where there was a critical mass of young people who were stressed out by their circumstances of captivity and exploded.

If I can take you to paragraph 47(a) of your statement and one of your proposed measures in relation to youth justice is that government and community leaders should desist from the demonisation of bad youth as occurred in 2014 to 2016. Is that comment linked to what you had mentioned previously, which I just took you to, around some of those serious incidents in 2014?---Certainly. Towards the end of 2014 in September 2014, and this is just an example, but Attorney-General Elferink was recorded by the ABC – and if I can just refer specifically to that, because I don’t want to misquote him. But this was what he said as reported on 16 September of that year.

Well, I believe it might be, if I am correct, is it the first – are you referring to?---My annexure H.

Yes?---Yes. I use this as the heading of an article I wrote a few months later:

These are strapping young lads but, my goodness gracious me, we will crack down on them and we will control them.

And at around the same time he referred to the group of detainees who had been repeatedly involved in serious incidents at Don Dale as the “worst of the worst”. Comments like this are not new in the Northern Territory from our leaders, and they reminded me very strongly of a similar period of rhetorical extravagance that occurred in the late 1990s, around the time I commenced practice. The then government engaged in a similar style of polemic, passed mandatory sentencing laws specifically aimed not only at adults but at youths for property offending, and it took a death in custody before that was brought to an end, of a young man who hanged himself in 2000 in Don Dale, a 15 year old. So we had been through all that, and then a couple of years ago, here we go again. The same vitriol and hatred being promulgated, not just by shock jocks, but by the people we have elected to run our state – our Territory. The Chief Minister, I said yesterday had his Facebook spray – or rant, as I called it, just a few months ago against youth and, in my view, what this does is it gives permission to people who have the authority lawfully to use force against youths, whether they are police officers, youth workers, social workers, detention officers, it gives them permission, effectively, to use that force to punish. Now, Dylan Voller gave evidence in this Commission, and he very articulately


5

10

15

20

25

30

35

40

45

explained the difference between being sent to detention – that’s the punishment – and being punished while you are in detention and he understands that that’s not lawful. But the way in which this rhetoric, this inflammatory rhetoric was being pumped out into our community, in my view, had this toxic corrupting effect on the administration of our youth child protection and child detention and youth justice systems, because it empowered, it permitted people to, perhaps, not read as carefully the manuals and the protocols which were there to restrain their behaviour. And it was in that context that we’ve seen the events that caused this Commission to be convened. Now, I’m not saying that children were tear gassed because the Attorney-General said, “It’s okay to tear gas children.” Of course that didn’t happen. And there were serious incidents taking place inside Don Dale which were extremely challenging, no doubt extremely difficult to deal with, and that’s for another – that’s to be – the lawfulness of all of that is being decided in another place. Nevertheless, this background of inflammatory rhetoric, in my view, is extremely dangerous, it’s extremely damaging and it infuriates me that we haven’t learnt from the mistakes back in the 1990s when exactly the same thing happened with catastrophic consequences.

And you’re worried that catastrophic consequences might occur again because that rhetoric, or have already occurred?---Yes.

If I can turn to a number of issues that you’ve highlighted specific to Central Australia. This is paragraph 42 of your statement. You mention some programs that, I think it’s right to say, you believe are, or were, effective as youth diversion programs. That’s correct?---Yes.

And, in particular, you’ve mentioned the Warlpiri Youth Development Corporation’s program at Mount Theo outstation, but you also mention that – a recent incident where it was closed temporarily following a youth who had absconded from there, was indicative of the fragility of such services. Could you just elaborate on what you mean by the “fragility” of those services?---Any service or program that operates in a very remote area such as Mount Theo, which is 20 kilometres or so, I think maybe a little further, out of Yuendumu, and Yuendumu is itself a very remote community – is cut off from the rest of the world. So if there’s an emergency, it’s not like you can get the ambos there in five minutes as we would expect in the city. If you need additional help, you can’t just call in the reinforcements, because there aren’t any reinforcements that can pop over from down the street, and the communication systems are more fragile, being so remote. The pressures on staff are particularly intense because there’s – it’s not like you can have lots of staff who rotate in shifts and then go home, because home is Mount Theo. So if something happens when you are not at work and you are asleep then either you are going to sleep through of something happens, or you get woken up, and even then might be exhausted, so there’s all sorts of unusual pressures that apply to services that operate in those sort of circumstances. They are also a long way away from the sort of support and supervision that service providers who operate in built up areas can take advantage of. So it may be that things are starting to get a bit frayed, in some area of your service delivery – and I’m not saying this about Mount Theo, I don’t know


5

10

15

20

25

30

35

40

45

specifically about there, but just generally speaking, and systems can start to fray and there’s nobody around really who’s going to pick that up and draw attention to it because you’re so far away that you don’t get that regular visits from your supervisors, or your funding bodies, or your regulatory authorities. So, just by its nature, any service that is provided in a very remote area has a high level of fragility.

And you also go on to mention the Ilpurla Aboriginal Corporation, which was forced to permanently shut its doors in 2011 after an incident in which children in care obtained and sniffed petrol which caught alight, and the closure of this service was a severe setback to the delivery of rehabilitation services in Central Australia. Connected to that, and your mention of the fragility of the Mount Theo outstation, do you think that there’s a particular pressure on Aboriginals or services to Aboriginal people to perform?---Certainly. There’s so much attention, highlighted by the media, on Aboriginal issues in general, and it’s almost sometimes as though sections of the media are just waiting for a service to fail so they can say “See, we told you wouldn’t be able to run your own show.” I think that’s an endemic problem throughout remote Australia, it’s not something specific to Central Australia. And there is a real tension between, on the one hand, the desire for self-determination, self-control, and community control, some of the things that Mr Hamburger was talking about in his evidence with what he was proposing was the sort of model, as I understood it for PPPs, they’re controlled by the community. On the one hand, you are giving the community the very serious responsibility of having to take the rap if somebody goes badly wrong. So these are complex issues to work through, and they’re difficult dilemmas. I don’t quite have any particular answer for this, but I do draw attention to the fact that if you are going to set up a rehab facility in a remote area and you are going to, quite properly, vest control for that in the people who are responsible traditionally for that place, sort of things Jeanette Kerr was talking about in her evidence with Loves Creek, you have got to provide proper support for this. You have got to set up everything you can to protect it from failure. You have got to not do what I believe could be said about Ilpurla, set and forget. They gave them the money, they put up their – they built their rehab centre, nice buildings, and then just left them to their own devices, and it was not an operation that was free of risk and sooner or later the risk resulted in a very serious incident. And so all of that operation, which had been going for decades, just stopped.

And you didn’t think – by the tone of your evidence, you didn’t think that serious incident should have meant that Ilpurla had to close; is that right?---I think that that serious incident should not have been allowed to happen in the first place. There should have been more support for the people. The family – it was just a family group running it. It was one family, a senior man, his children, and I think maybe a couple of his grandchildren. They were the staff there. But there was really no presence from outside the immediate family group in managing, running, operating that enterprise, and they had something like a dozen young people there at a time and, really, in retrospect – I mean it’s easy for me to say, with the benefit of hindsight, but in retrospect there should have been much more robust systems to manage risk in place and then there’s a much better chance that what happened would never have occurred in the first place.


5

10

15

20

25

30

35

40

45

And that’s what you go on in paragraph 43 to say that then – that that’s why it’s imperative that such programs are provided with substantial support, sufficient training, sufficient funding, access to training, etcetera. That’s essentially what you would recommend is provided to those programs to ensure that serious adverse events are avoided or properly managed?---Yes.

And those organisations can continue to do good work; that’s right?---That’s what – that’s my view, yes.

You go on in paragraph 44 to mention that there’s no specialist youth psychiatrist in the forensic team of the Central Australian Mental Health Service, and that their forensic team based at the adult prison is only involved with youth if there is an at-risk situation and the child and youth team is not funded to service children in detention. What do you think is the impact of that in terms of service delivery in Central Australia?---Well, as I understand it, if there’s an at-risk incident at the Alice Springs juvenile detention facility, if it occurs between 8 am and 4 pm on a week day, then they make a phone call over to the jail next door, which employs during those hours a psychiatric nurse, and she comes over and helps to manage the situation. But if there’s an incident of that nature at night or on the weekend, there’s no psychiatric nurse available, so the staff at the detention centre either just have to manage the situation themselves the best they can or take the child to the Alice Springs Hospital, which is about 20 kilometres, away to be managed there.

And in your experience, do a lot of the Legal Aid Commission’s clients particularly children, have mental health problems?---Mental health problems and cognitive problems.

And you’ve mentioned that it’s difficult to get a cognitive assessment in Central Australia for those clients and I believe Ms Carroll yesterday gave a similar evidence. What’s the impact of that inability to have clients have a cognitive assessment in the court process?---Well, one impact is that we have a client, a young person, who for example may not – we are not sure. May not have capacity to commit an offence in the Northern Territory. There’s a presumption that there’s no capacity to commit an offence between the age of 10 and 14, but that’s a rebuttable presumption. After the age of 14 then you are deemed to have capacity. So if we have a client who is in that age bracket, say a 12 year old who has repeatedly been picked up by police for alleged offending, there’s a question: has this child got the capacity to commit offences or not? We better get her, if it’s a girl, assessed. But it can take months – months to get that organised because there’s a lack of specialist assessors around. And if it’s, for example, a child who we think maybe is on the FASD spectrum, then that’s a particular problem, and Dr Fitzpatrick has given evidence about the work that he has done in Western Australia. But I think we are still in the very early stages of developing a professional cadre of people who can identify and assess FASD spectrum disorders.

COMMISSIONER WHITE: Mr Goldflam, I wonder if I could just pause here. In your experience, working in the courts in Alice Springs, has the issue of the rebuttal


5

10

15

20

25

30

35

40

45

presumption of capacity in that age group much been raised in the courts by the legal representatives of the children?---Increasingly so. We’ve got two matters in my office at the moment where it’s a live issue, and we’re in the process of working through trying to figure out whether or not the presumption has been rebutted.

Right. That’s now?---Yes.

You’ve got a long experience there. If you could just reflect for a moment, if you can, whether it is a more recent phenomenon, with perhaps better understanding of capacity, or whether it in fact it has always been a live issue?---In my experience it has only arisen occasionally, but I do have the niggling concern that we should have raised it as a profession in general more often than we have because FASD – the emergence of FASD and the true significance of it is still something that we are struggling to come to terms with. So I am – but it’s hard to go back and think of all your old cases where, “Maybe –maybe we really should have looked at this more carefully.”

But there were other, of course, manifestations of cognitive deficits, even if they didn’t have a label of FASD or things of that kind?---Yes.

- - - around. It would have at least, perhaps when taking instructions, made those doing so a little troubled, do you think?---Could, yes. We could, and I think we could do more. In defence of myself and my colleagues, sometimes it’s very hard to get instructions from a young client, but you just can’t tell easily whether that’s because there’s a language barrier, and you might well be using an interpreter, but even with an interpreter it’s not always easy to gauge the quality of the communication. It may be that there’s a hearing impairment that you haven’t picked up or noticed. That’s very common, we now know. Or it may be a cognitive problem, or it may be that this is an angry young child who just doesn’t want to talk to you, because they don’t like the look of you, because you’re another white, aged person, who’s trying to get them to open up, like all the others. So – or it could be a combination of any of those factors. So it can be very difficult to even identify that you are dealing with somebody who has got a cognitive impairment. Luckily I think now, more than say 10 years ago, there is a greater appreciation on the part of the youth justice lawyers who work in our courts that it’s a specialised area and they’re more attuned to these sorts of issues than in the old days, when we all used to muck in and we would do the kids and the adults willy-nilly without really identifying to ourselves that this is actually – there’s a special skillset needed here.

Even if one moves out of the 10 to 14 year old age group and takes slightly older youth, these factors must raise questions about, really, the quality of the pleas of guilty?---Yes. But can I say – elaborate on that very short answer, Commissioner, by saying that there’s an added dilemma that we lawyers face, and this was the subject of quite detailed consideration by the very recently released senate committee report on indefinite detention of mentally ill and cognitively impaired – mentally impaired and cognitively impaired persons in Australia, to which I gave evidence as well. And that is that if you are thinking, “Maybe my client is not fit – fit to stand trial or


5

10

15

20

25

30

35

40

45

even fit to plead guilty,” in a serious matter, if you go down that path, your client might end up on a lifelong supervision order - - -

So you plead - - -?--- - - - rather than getting a couple of months in jail for a relatively minor offence. So there’s a thicket of ethical issues that has to be faced, as well as the – just the skill of being able to figure out whether or not you are dealing with a client who really isn’t fit to instruct you.

Yes. My questioning of you was not, in a sense, unmindful of that consequence, or critical either of the circumstances in which particularly Legal Aid lawyers work with large case loads and lack of resources for reporting and so on. But it is something that those who are interested in the system need to be very conscious of, it seems to us, anyway. Commissioner Gooda and I have discussed this at some length?---Yes.

Right. I’m sorry, Mr Goodwin, to take over your role.

MR GOODWIN: No ..... Commissioner. No, you’ve done well, it means that I’ve finished the topic. If I can move on to a number of your proposed measures that you’ve listed – and this is my final line of questioning – in paragraph 47(c) subparagraph (i) you have mentioned that the principle of detention being the last resort must be given practical effect by a number of measures, including supported bail accommodation. Does any supported bail accommodation currently exist in Alice Springs?---Not as such. There is a youth refuge and sometimes children are bailed to live at the youth refuge; there’s Bush Mob, that has been mentioned by other witnesses, sometimes children are bailed to live at Bush Mob, but not – neither of those organisations is set up specifically to provide supported bail accommodation, and there can be difficulties, and there have been difficulties when a judge in the Youth Justice Court might be minded to impose a condition, for example, that there’s a curfew and police can come around at any hour to check up to make sure that the kid is there and that might not be convenient or practicable for the youth refuge workers, for example. That’s not what they’re set up for, to answer the door at 2 in the morning for the police officers. They are set up to keep the kids – give the kids a good night’s sleep. So it will be – in my view there is a real need for specifically bail supported accommodation, which is just for that purpose, and one of the reasons we have got so many children on remand is because, in many cases, attempts are made to bail a child – this is in Alice Springs at least, to a family member with various conditions, but it’s a bit of a tenuous arrangement, built on hope perhaps more than on real expectation. And, sure enough, the aunty on the town camp isn’t able to ensure that that child is home by 7 pm, and the child is found in town at 8 pm, and so they’re back before the court, and that happens a few times and then they can’t get bail again. So we have got this pattern of children being given bail on conditions which are really unlikely to be successfully complied with and, sure enough, after a few breaches the judge says, “Well I’ve got no choice now. We have run out of options.”

And that goes – that’s connected to your comments yesterday around creating an offence of breach of bail. So it essentially increases that – I’m not exactly – I don’t


5

10

15

20

25

30

35

40

45

remember your exact language yesterday but that kind of rolling up of offences?---It ratchets - - -

Yes?---It ratchets up the business of the child being drawn into the system, the criminal justice system, yes.

And in subparagraph (h) you state that youth detention centres should be purpose built and that neither Don Dale or the Alice Springs Youth Holding Centre is fit for purpose. You have mentioned that you read Jeanette Kerr’s statement, I believe on Tuesday evening, and the plans to build new precincts in both Darwin and Alice Springs. Do you have an opinion on those plans?---Well, yes, it’s good to have a plan. It’s good that substantial amounts of money have been promised. What we mustn’t do is jump in to some off the shelf predesigned youth detention centre that has been found in an architect’s office somewhere. It has got to be done carefully, and there’s obviously now some interesting discussion about whether you should have a centre or small places distributed around the region, and that has to be worked through with proper community consultation. We don’t want to repeat the unfortunate mistakes that, according to Mr Hamburger, were made with the commissioning of the old correctional centre.

And similar to that process of consultation that you stated was required, I suppose, in terms of any legal changes as well that might occur, so it’s – your comments are essentially connected to that need, prior to policy action, for important consultation to happen with stakeholders; is that right?---Yes. And I’m not saying that governments shouldn’t govern. I’m not saying that governments should hand over responsibility for all these tough decisions to the community. Governments are elected to take responsibility for governing. But, at the same time, especially in an area that has been so fraught with difficulties as youth justice and youth detention in particular, it has got to be done in a very careful way with detailed planning and that includes talking to the people who have a stake in this.

And then finally, in paragraph 49(g) on the final page, you’ve mentioned regarding that many children’s lives are blighted by early exposure to trauma. Is that based on your experience and the Legal Aid Commission’s experience with working, or representing, a number of those children?---It’s based on my 35 years of living in Alice Springs.

And you’ve mentioned that removing alcohol related harm from the mix will not fix all these problems, but unless it’s – that harm is substantially reduced, attempts to address other components of family dysfunction will fail. And then mention some highly effective measures, in particular supply reduction. What type of measures would you recommend regarding that issue in terms of supply reduction?---Well, we had a highly effective measure introduced in October 2006 in Alice Springs, which was the banning of 4 and 5 litre casks of wine, and the limit on the purchase of fortified wine to one litre or one bottle per person after 6 pm per day. The a result of that was an 18 per cent reduction in total alcohol consumption over the next few years, and independent studies that have been done on the effect of all of this as well


5

10

15

20

25

30

35

40

45

as all the other alcohol related policy measures that were taken at around that time have convincingly shown – I’m talking about evaluations done by the National Drug Research Institute at Curtin University – convincingly shown that that reduction in drinking was primarily a result of that supply restriction and that, in turn, is closely correlated with a very significant reduction in serious crimes of violence in the years succeeding the introduction of that measure. It was so successful that similar measures were rolled out throughout the Territory. It’s – now you can’t buy boxes of wine – big boxes of wine anymore in the Northern Territory, to speak of – not legally. Two litre casks you can still purchase. In Alice Springs also at an around that time or in about 2008 or 9, the big supermarkets voluntarily stopped selling cleanskin wine and basically stopped selling wine that was under about $9 a bottle, because previously we were able to buy wine more cheaply than we could buy a bottle of water in Alice Springs. Unfortunately, the – some of the drive through take away outlets attached to our local – two of our local hotels didn’t sign up to that agreement, and continued to sell two litre cask wine and some other cheap wine. But nevertheless, Coles and Woolworths and the IGA chain are big suppliers of alcohol in Alice Springs and their responsible trading certainly helped to alleviate those problems. But there’s something else that could be done – there are two other things that could be done quite simply, if there were the political will to do it. One would be to introduce a floor price for alcohol and the other would be to introduce volumetric tax for alcohol. We had a volumetric for alcohol under the CLP government led by Marshall Perron in the early 1990s. It was highly effective. It went throughout eight years altogether, maybe a bit less. It stopped because, unfortunately, there was a High Court decision which found that the states and territories didn’t have the constitutional power to impose tax of that sort, because it was held to be an excise. Very arcane point, but it had enormous consequences because the program which was called Living With Alcohol had to be abandoned. But it was a good opportunity to measure its effects, because we had a before and an after. And, again, our studies from Curtin University National Drug Research Institute showed there was something like $29 million saved, they concluded and a similar number of lives saved over the period of the years this program was operating. Nationally, we could have volumetric taxation. It has been recommended by the Henry review of tax, of the tax system, that was undertaken several years ago, and in the Northern Territory we could easily have a minimum floor price as well, if a politician decided that the Liquor Act was worth amending for that purpose. If we were to do either of those things, it would see a very big effect on people who have got fixed incomes, that is people who rely on welfare and who spend all their money, all their available money on grog, because they wouldn’t be able to afford to buy as much. It wouldn’t affect me, because I like to drink expensive red wine and scotch, the price of those expensive drinks wouldn’t change. But the price of the cheapest, which is the most harmful form of alcohol, because it’s so readily available would go up and that would reduce – that would have a disproportionately beneficial effect on the people who are most harmed by alcohol. The other important supply reduction measure, which I think is in the pipeline now, which is welcome, is the reintroduction of the Banned Drinkers Register, which was abolished in October 2012 after the last election was won, as part of – the CLP had come in on a promise they would abolish it, and they immediately did. In the months immediately


5

10

15

20

25

30

35

40

45

succeeding the abolition of the Banned Drinkers Register, in Alice Springs Hospital we saw the rate of presentations at the emergency department go from 120 a month to 380, I think it was, a month. And it was after about six months of this mayhem – was pulled, and there were murders, I’ve acted in some of those murders. There were – it was just horrible. After about six months of that, the police started to set up their now notorious patrols, or famous depending on your point of view, outside bottle shops to stop people who live on – live in places where you are not allowed to drink from being able to buy alcohol, and that was highly effective and we were able to repair that damage, but it’s racially discriminatory and the Banned Drinkers Register, when it is introduced – the government has promised that it will, will see a non-discriminatory regime introduced which should be able to achieve much the same, if it’s done carefully, as the police patrols.

And what would you say to criticisms that a number of those measures might be – were actually discriminatory on the basis of - - -

MS BROWNHILL: I object to this question. I’m sorry, Commissioners. Mr Goldflam’s view about the legal conclusion that certain measures are racially discriminatory really can’t assist you, Commissioners, in reaching any of your findings or conclusions. It calls for him to express a view about the law, which really isn’t the purpose of the evidence, as I understand it.

COMMISSIONER WHITE: Thanks, Ms Brownhill.

MR GOODWIN: I was simply going to ask – Mr Goldflam mentioned that that was one of the criticisms of the banned alcohol register. I simply wanted to get his view of whether the – of his reaction to those criticisms.

COMMISSIONER WHITE: I don’t think that’s what - - -

MS BROWNHILL: It wasn’t his evidence in any event, Commissioner. Sorry.

COMMISSIONER WHITE: No. I’m not sure that that’s helpful to keep pressing a bit further and further. I think we have got sufficient evidence about the Banned Drinkers Register, which relates to some statistical evidence which Mr Goldflam can give us. I think we might steer clear of the other.

MR GOODWIN: Yes. I’m content with that, Commissioner.

COMMISSIONER WHITE: Thank you.

MR GOODWIN: On that basis, I have no further questions.


MR GOODWIN: I believe Mr Lawrence was next.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Do you have some questions, Mr Lawrence, for Mr Goldflam?

MR LAWRENCE: I do, yes.


<CROSS-EXAMINATION BY MR LAWRENCE [10.26 am]

MR LAWRENCE: Mr Goldflam, I’m counsel representing the juvenile who is known as AD, a [REDACTED INFORMATION] when he was in the juvenile justice system up here in Darwin?---Yes.

I just would like to take up on some of the evidence just a moment ago concerning the quality of the pleas of guilty which Madam Commissioner asked you, it being related to the system which we are trying to examine here, and I want to ask you, part of the difficulties that exist in our system here in the Territory now is the significant pressures that exist for lawyers endeavouring to represent young people, young Aboriginal people in the criminal justice system. Would you agree with that?---Yes.

And they are inevitable by virtue of the fact that the lawyers themselves are often relatively inexperienced?---Yes.

They invariably come from down south with a different cultural background and education?---No. We are getting quite a few lawyers now who have been trained here in Darwin and increasingly people who are with Territory-born and bred, as they say. But most, most of the people who come to work in the Legal Aid and Aboriginal legal services come from other jurisdictions, yes.

With limited experience with Aboriginal people, and Aboriginal customs, and Aboriginal language, and Aboriginal mores, and all of those things which are obviously relevant and helpful in trying to communicate effectively in order to effectively represent them. You would agree with that?---I do.

And you’ve been here for 20 years?---35 years.

You’ve been a lawyer for 20 years in the court system?---That’s right, yes.

And I would suggest to you that in that period those pressures have increased for young lawyers trying to - - -

MR O’MAHONEY: I object to the questions, Commissioners. I have let the first few questions go, but it’s not clear all how this line of questioning, which is revisiting other evidence, how it cuts across or in any way bears upon my friend’s client’s interests.

.ROYAL COMMISSION 14.12.16 P-828 R.R. GOLDFLAM XXN©Commonwealth of Australia MR LAWRENCE

5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Thanks, Mr O’Mahoney. We have some experience that perhaps it sometimes takes Mr Lawrence a little background picture painting to get to the point that he is going to ask the question.

MR O’MAHONEY: He certainly got the paint brush out this morning, Commissioners.

COMMISSIONER WHITE: Yes. Thank you Mr O’Mahoney. Mr Lawrence, I’m sure that you are going to sharpen up the questions. I think we have all got in our minds the evidence that Mr Goldflam has given both yesterday and today.

MR LAWRENCE: Yes.

COMMISSIONER WHITE: So perhaps you will be a little more specific in the questions that you want to ask him.

MR LAWRENCE: Well, I will be specific because I think he is available to give important evidence about this component which exists, and which is relevant to explaining a lot of what has happened here, including the increasing rates of young children going into detention.

COMMISSIONER WHITE: That – yes, well, of course it is. And that has already occurred of course, with Mr Goodwin’s questioning. Just how does it affect the interest that you are here to represent, Mr Lawrence? I had hoped there might be something a little more tangible than just a systemic conversation of interest, about which we have really heard a lot already.

MR LAWRENCE: Well, with respect, it’s more than interest. It’s relevant to what the terms of reference apply here. My client was represented by a Legal Aid Commission lawyer. He is part of the system, and therefore it’s relevant to his interests. The explanation could be the explanation as to the circumstances which led to his detention, the length of it, and so forth. It really is a feature of the justice system here as to how it works, the pressures that are on the lawyers, the rapidity of plea proceedings we had yesterday about Dylan Voller, pleads guilty to everything. We are all aware of the dangers of this thing becoming – it’s often called the sausage factory, and lawyers becoming lubricants to that factory, and these things are very relevant in 2016 to explain how the justice system has got to the state it has got to.

COMMISSIONER WHITE: Mr Lawrence, I don’t think we disagree with the essential nature of these topics, just really raising with you more particularly why you would take this burden of asking these questions, when many of them have already been addressed, vis-à-vis AD’s interests. I heard what you said, of course, that he was in the system. Perhaps if you could be – just try and be a little bit more directed in the questions, so we would then get forward a bit more quickly.


5

10

15

20

25

30

35

40

45

MR LAWRENCE: Well, maybe I will just put something to the witness: lawyers are subjected to a lot of pressure from the bench, judicial officers, in encouraging them to hurry up their cases; would you agree with that?---Yes.

MR O’MAHONEY: I object to the question.

COMMISSIONER WHITE: It has been answered.

MR O’MAHONEY: It has been answered, but – and I will note that it has been answered, but honestly if this sort of vague evidence which does not in any way cut across my friend’s client’s interest it is continued to be adduced, you will expect to hear from us shortly, Commissioners.

COMMISSIONER WHITE: Well, Mr O’Mahoney, sometimes it’s – the long way around is the shortest way home. We have to deal with so many objections. It’s not – we are just inquiring into. We know the valuable evidence, of course, that Mr Goldflam can give, and we hope to pick up some pearls along the way where ever we can.

MR O’MAHONEY: Certainly, Commissioners.

COMMISSIONER WHITE: Yes. So I think we will just see if we can focus a bit more, Mr Lawrence, thank you.

MR LAWRENCE: And that pressure over recent years has increased, would you agree with that?---Which pressure?

The pressure that is put on practitioners trying to get a list – get through a list, whether it be in a Bush Court or indeed in the Alice Springs Magistrates Court by the bench, hurrying them on through the agencies of the orderlies and the like?--- ..... I understand the question now, thank you. I think – I think it probably has increased, although I’m not sure, because there are more lawyers than there used to be. There’s more cases, but there’s also more lawyers, certainly in my office. And I would like to think that – are more skilful lawyers than there used to be. But I think generally – I mean you always feel there’s more pressure. I think at the beginning of every year, “Okay, this year will be better than last year,” but it doesn’t seem to get that way even though I seem to think that – you know, I’m older and I should know better now. I think there is more pressure, but that’s a bit of a subjective thing. I’m not sure.

Well, a lot of careers are ended by virtue of the conduct that they receive from judicial officers.

COMMISSIONER WHITE: Mr Lawrence, I really have to draw the line at that one.

MR LAWRENCE: Alright. I withdraw that.


5

10

15

20

25

30

35

40

45


MR LAWRENCE: Don’t you accept that’s relevant in the scheme of things to explain partly, during the relevant period, the increasing number of people that have gone into detention?---It could be. I’m not sure. Yes.

Mr O’Mahoney yesterday reminded us, in his cross-examination of the previous witnesses, about the importance of the duty of a lawyer to his or her client, and you are well aware of that?---Certainly am.

You have a duty as a legal practitioner to defend and to protect the interests of your client?---Yes.

And that duty exists within an adversarial system?---Certainly.

And it’s an onerous duty?---It is.

And you have to be thorough when you try and represent a young Aboriginal child charged with a criminal offence in the Youth Justice Court?---As with all clients, but perhaps even more so in the youth justice court and even more so with Aboriginal clients in our jurisdiction, yes, I agree with you.

Because, really, they are as vulnerable as it gets?---That’s right.

And within that onerous duty within the adversarial system there are huge pressures on young lawyers trying to do that. That’s a fact of this landscape, isn’t it?---Yes. There’s always – there has always been pressures on young lawyers in the legal aid system in the Northern Territory, certainly since I’ve been in the Territory and now, as much as ever –perhaps more so. I don’t know.

We don’t have, we don’t enjoy an animal like the Judicial Commission in the Northern Territory, do we?---No, we don’t.

And have we ever lobbied for one? When I say we, I mean the legal profession of the Northern Territory?---There was a brouhaha one or two years about a particular judicial officer who resigned, and during that brouhaha I think there was some discussion in public debate about whether or not we should have a judicial Commission. I don’t – I don’t recall any more detail as to whether the judicial commission idea ever got as far as being a formal proposal by any of the professional bodies.

Just for explanatory - - -

COMMISSIONER WHITE: Mr Lawrence, can I just interrupt you here. If the direction of this questioning is to arrive at a position where a submission might be made that some judicial officers are better at managing this kind of work than others – I will put it no more strongly than that – then it seems to me the proper place for


5

10

15

20

25

30

35

40

45

that is to make a written submission rather than to make your submissions through a conversation with Mr Goldflam.

MR LAWRENCE: Alright. Can I just ask this for the benefit of everybody, because I’m talking about a judicial commission. Many might not know that is - - -

COMMISSIONER WHITE: Well those who are interested to know, I think will know.

MR LAWRENCE: Well, I think the public should know what a public judicial commission is.

COMMISSIONER WHITE: I don’t think so, Mr Lawrence. I really don’t think we need Mr Goldflam to explain what a judicial commission is for the benefit of anybody who isn’t involved in this Commission just now. It really is drifting too far away from an appropriate line of cross-examination.

MR LAWRENCE: You’ve been working in Alice Springs as a lawyer for just under 20 years?---Yes.

And you’ve been the principal of the Legal Aid Commission for 15 of those 20 years – 19 years. Is the Legal Aid Commission partly funded by the Northern Territory Government?---Yes.

Do you know what proportion?---Not off the top of my head. No, I don’t.

Do you know approximately?---It’s – I think it’s more than half.

Right?---And the are formulas are complicated, and there’s different programs funded from different areas. Traditionally speaking, Northern Territory criminal matters are funded by the Northern Territory Government, Commonwealth criminal matters are funded by the Commonwealth Government, family law is funded by the Commonwealth Government, child protection is funded by the Northern Territory Government, but I just don’t have the figures in my head.

It’s not independent from the Northern Territory Government?---It’s not independent?

Independent now. It’s not – it used to be fully funded by the Commonwealth?---Well, before I was involved perhaps. Ever since I can remember, it has been a shared Commonwealth/Territory funding arrangements.

Right. Client organisation is steered by a committee which embraces lawyers from different areas?---Yes.

Defence lawyers, prosecutors?---Yes.


5

10

15

20

25

30

35

40

45

Government lawyers?---Yes.

Government policy lawyers?---Yes.

And one of - - -?---And private lawyers.

And private lawyers, yes. Thank you?---Even barristers.

Barristers. And adjunct to a client in its role as a gatekeeper, of course, is the Northern Territory Bar Associations which exists up here?---An adjunct to that?

Well, fulfilling a similar role in relation to the debates on policy issues and the like, you have your Bar Association, which is a separate body?---The Bar Association has got a regulatory role to administer the code of conduct for barristers. It does also have a policy role, we do work alongside the Bar Association in contributing to debate about legal policy issues, yes.

COMMISSIONER WHITE: Mr Lawrence, where is this going?

MR LAWRENCE: Well, it’s – I’m availing myself of Mr Goldflam’s genuine expertise in the legal system and how it operates here, and how people are represented, and how policy is articulated, discussed and refined.

COMMISSIONER WHITE: Policy about what, Mr Lawrence?

MR LAWRENCE: Sorry?

COMMISSIONER WHITE: About what? I mean, the way the Legal Aid Commission is funded is readily available. If the Commission wants to know that, it can readily find that out. I’m just not sure what the point is.

MR LAWRENCE: Alright. Okay. One of the aims of CLANT is to promote and encourage the protection of human rights and compliance with international human right principles that exist here in the Northern Territory?---Yes.

Now, during the period that the Commission is inquiring into and which you have filled the position of principal legal officer, and president of CLANT for a bit of it, you’ve seen the imprisonment rate in this jurisdiction rise markedly?---I have.

And that applies to both male and female?---It’s much worse for female.

Yes. And juveniles?---Yes.

And, of course, we are all aware of the significant proportion of that imprisonment rate is, of course, Aboriginal?---Yes.

At the moment I gather it’s around about 85 plus per cent?---Correct.


5

10

15

20

25

30

35

40

45

During the Royal Commission into Deaths in Custody it was 69 per cent?---I don’t know.

We know that nationally it has doubled since the Royal Commission into Deaths in Custody?---That’s what I’ve heard.

And not just women, Aboriginal women’s imprisonment rate has increased rapidly, but also juveniles?---Yes.

In the four years prior to 2013 juvenile imprisonment rate went up 50 per cent?---That’s my evidence.

And when we’re talking about that, your evidence is also that 75 per cent of those juveniles are remanded in custody, as in they’re not sentenced?---Correct.

So we’re talking about a period here for this Royal Commission where the detention rates for Aboriginal children have increased markedly?---Yes.

And while that has been going on, interstate it has actually been reducing?---That’s right.

In relation to the youth detention system, in relation to the relevant period where these numbers have increased, one of the aspects that exists of course, is that the youth justice system, the Department of Correctional Services, owes each of those detainees a duty of care?---Yes.

And that’s one of their interests that their lawyers are obliged to protect?---Whose lawyers?

The detainees’?---Yes.

Now, during the relevant period, would you agree that the standards applying, the quality, the standards that apply within the Territory youth justice system have deteriorated?

MS BROWNHILL: What does that mean?

COMMISSIONER WHITE: I think that was just such an impossible question - - -

MR LAWRENCE: Alright. I will ask this - - -

COMMISSIONER WHITE: - - - for this witness to answer in any way meaningful, Mr Lawrence.

MR LAWRENCE: Okay. Well, let me go step by step.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: You’re an experienced counsel, Mr Lawrence, with respect. You know those sorts of questions are just not appropriate. Could you just ask some more specific questions or make a submission to the Commission.

MR LAWRENCE: Alright. Mr Goldflam, you’ve read - - -

COMMISSIONER WHITE: We would value your submission, because you’re very experienced. We know that, and you know a great deal about the administration of youth justice in the Northern Territory, but I think to stand at the lectern and make those statements and ask Mr Goldflam to make a comment upon your statement is just not helpful to us, but we would like to hear from you in a different way.

MR LAWRENCE: Well, I’m grateful and I appreciate that you would like to hear from me in a different way, but I’m also conscious that my client, and his family, and his community, many of them are watching this – and with interest – and that they and a lot of the Australian community want to know these things, and Mr Goldflam can inform the Australian community about these things which are relevant.

COMMISSIONER WHITE: You are informing them, that’s my point.

MR LAWRENCE: Sorry?

COMMISSIONER WHITE: You’re informing them, using this as a forum to make a speech about it, rather than adducing relevant evidence from Mr Goldflam within the areas in which he is extremely experienced to give some evidence.

MR LAWRENCE: Alright. Well, I don’t want - - -

COMMISSIONER WHITE: We won’t have an argument about it.

MR LAWRENCE: No, we won’t.

COMMISSIONER WHITE: And I hope that you will – that you will be more particular in your questioning.

MR LAWRENCE: Mr Goldflam have you read the Vita Report?---Yes.

Have you read the Child Commissioner’s report, started by Bath and finished by Ms Gwynne?---I’ve perused it. I wouldn’t say I have read every page.

It reveals that one of the problems in corrections in recent times has been the large number of unqualified, untrained part time staff?---That’s correct.

It also revealed evidence of cover ups within the corrections services?---Which report are you talking about?

Vita?---Vita or Bath?


5

10

15

20

25

30

35

40

45

Vita?---Vita, I don’t remember whether the Vita report talked about cover-ups.

Do you remember when the Chief Minister announced the creation of this Royal Commission that he also said at the time that there was evidence of cover ups within the Department of Correctional Services?---No, I don’t remember that.

MS BROWNHILL: I object to this again, Commissioners. It’s – there are objective facts which Mr Lawrence can put into evidence, if that’s what he wants to do. He doesn’t need to elicit them from Mr Goldflam.

MR TIPPETT: I join in that objection.

COMMISSIONER WHITE: Thanks, Mr Tippett. I don’t really wish to do this, Mr Lawrence, but I may need to restrict your questioning to a time limit because there are other counsel who, no doubt, wish to ask some questions and you have had a lot of opportunity to make use of this witness for the questions that are relevant to the interests you represent. So I would ask that you please endeavour to be more focused.

MR LAWRENCE: I will ask Mr Goldflam this question: have you been to the BMU?---To the what?

To the BMU, the behavioural - - -?---No, I’ve never been in there.

Have you seen photographs and film of it?---Yes. Well, I believe so.

Four Corners had - - -?---I watched Four Corners.

Yes. Have you been to the Don Dale facility now which is at the old Berrimah prison?---I’ve been to the old Berrimah prison before it was Don Dale, when it was the old Berrimah prison, so I’ve been to that facility, but I haven’t seen it since it was turned into a youth detention centre, no.

And I think part of your statement, or at least an attachment, is media releases endorsed by CLANT - - -?---Yes.

- - - criticising that decision to reopen Berrimah and put the kids in there?---That’s right. Yes.

The international covenants – the International Covenant on Civil and Political Rights requires detainees be treated with humanity and respect for their inherent dignity of the human person?---Yes.

And the Convention on the Rights of Children states that they shouldn’t be subject to torture, cruel inhumane or degrading treatment?---That’s correct.


5

10

15

20

25

30

35

40

45

Now, is it your view that by the conditions that exist in the Territory youth detention centres and the treatment that has been meted out to them, those Conventions have been breached?

MS BROWNHILL: Well, I object to that as well.

COMMISSIONER WHITE: Yes.

MS BROWNHILL: The witness gave the answers that he hasn’t been there. How can he sensibly answer the question asked?

COMMISSIONER WHITE: In any event, it’s probably not a proper question, Ms Brownhill.

MS BROWNHILL: Thank you.

COMMISSIONER WHITE: I think that – don’t answer that question, even if you were going to attempt to, Mr Goldflam. I disallow that question.

MR LAWRENCE: Alright. As a defence lawyer, you would be aware of the remedy of habeas corpus?---I don’t think I’ve ever seen anybody issue a habeas corpus writ in my 20 years, but I’ve read about it in legal history books, yes.

You are aware of how it works?---Roughly.

You are aware that it applies here in the Northern Territory?---I believe it does apply, or could.

Habeas corpus, Latin for “you may have the body”?---I thought it meant “produce the body”. I’m not sure. I don’t speak Latin.

Well – but what it is, is a means by which an application to a judge can create an order, a summons by that judge - - -

COMMISSIONER WHITE: Well, Mr Lawrence, Mr Goldflam has said that he only has knowledge of it from perhaps when he was a law student. Where are you going with this line of questioning?

MR LAWRENCE: Well, where I’m going is that it’s a means by which, if a lawyer in this jurisdiction was of the view that their client – could be an Aboriginal child, held in the Old Don Dale – was being unlawfully detained they could take action pursuant to that writ.

COMMISSIONER WHITE: It could indeed. It could indeed, but why would you ask Mr Goldflam that question in light of his previous answer?


5

10

15

20

25

30

35

40

45

MR LAWRENCE: Well, I think it’s necessary that that evidence is brought through this experienced witness .....

COMMISSIONER WHITE: No. I don’t think this is the right witness to ask any questions about habeas corpus. If you want to give evidence about it, talk to Counsel Assisting and perhaps it can be arranged for you to do that, Mr Lawrence, if you wish to, if you have some meaningful contribution. But not Mr Goldflam, in light of his evidence. He has no experience with habeas corpus, probably less than some of the lawyers here at the bar table.

MR LAWRENCE: If I can take you to – you mentioned the Four Corners program, then. That was screened in July of this year. The conditions that that revealed, I think your evidence yesterday was well aware to a lot of the practitioners that worked here in the Territory, certainly in the Youth Justice Court?---I think my evidence yesterday was that we were aware that spit hoods and restraint chairs were being used, but certainly when I saw that program I was shocked, probably like just about everybody else who saw it, because seeing it is different from knowing about it abstractly. So to say I was aware of it already doesn’t really capture the experience of watching that program and seeing those things for the first time.

Alright. The gassing incident became news at the time of the incident?---Yes.

Which I think was August 2014?---I think so, yes.

It was reported by the media?---That’s right.

Amnesty International became involved?---I believe they did. It was reported as a riot at the time.

Yes. That was by the Chief Executive Officer of Corrections, Mr Middlebrook?---I don’t know who first characterised it as a riot, but that’s the way I remember it being reported in the media.

And that was occurring – that occurred at a time where the correction service was in crisis?---That’s my view, that it was in crisis, or – not the correction service but the detention system. I’ve given evidence that I believe that it’s accurate to characterise that as being in a state of crisis at that time, yes.

In August 2014, how long had you been aware that these types of conditions were going on in Don Dale?

MS BROWNHILL: What types of conditions, if I can ask him to be specific?

MR LAWRENCE: Handcuffs, spit hoods, isolation wards, shackles?---Well, I knew that handcuffs were used, because I had seen children being shunted around the court in handcuffs for ages, for years.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Are you speaking Don Dale, that was the question?---It was.

Mr Goldflam, if you are not comfortable about answering the general nature of some questions, do indicate that you want to confine it to Alice Springs, if that be the case, won’t you?---Yes. Thank you, Commissioner. As I had seen children being subjected to the use of handcuffs for years, I inferred that they would also be used in Don Dale on occasions. So that wasn’t news to me. But – and I was aware too, that children could be kept in isolation for up to 24 hours, because that’s what it said in the Youth Justice Act, so that wasn’t news to me. But I can’t remember when I first became aware of spit hoods and restraint chairs. I had never heard of tear gas being used until there were reports it had just been used in, as you say, August 2014. I don’t – I don’t specifically remember becoming area of even the existence of such a thing as a spit hood and a restraint chair until about 2014, but I can’t be any more specific than that.

MR LAWRENCE: If I can take you to your statement, at page 3, paragraph 18, talking about the interaction with government service providers. You say that:

Over the last 10 years I have maintained cordial and productive relationships with both current Commissioners of Corrections, Mark Payne and his predecessor, Ken Middlebrook.

?---Yes.

The Mark Payne part would have been in very recent times?---Well, I knew Mark Payne before he became Commissioner for Corrections, because he was a senior police officer and I had some dealings with him in that capacity. But certainly I only knew him as a correctional services guy after he became a correctional services guy.

So really, in - - -?--- ..... in about November last year, from memory.

Yes. So the main cordial relations and productive relations you had was with Ken Middlebrook?---No. I’ve seen a lot more – I’ve seen Mark Payne more frequently than I saw Mr Middlebrook, so I probably got to know Mr Payne better than I knew Mr Middlebrook.

But over a period of time I’m talking about, rather than - - -?---Yes, I understand your question.

Payne has been Corrections since November last year?---Correct.

Middlebrook was CEO of Corrections for at least five, six, maybe seven years?---Yes.

So your dealings with him were over that period?---Yes.


5

10

15

20

25

30

35

40

45

And they were cordial and productive?---Yes.

And you also say at paragraph 20 that you strongly believe that a key to effective collaboration between service providers is for – to have regular meetings in a structured setting?---Yes.

And is that what has been going on over this period since you’ve been involved?---No. The group I found to be particularly useful has been a group called the Criminal Justice Forum, I think it’s called.

Forum?---And the Commissioner for Corrections is a member of that group. He doesn’t always attend, sometimes he sends a delegate, but he clearly makes an effort to attend. And I regularly go to those meetings and they’ve been going, I think, for about three years. I’m not sure exactly when they started.

Right. And your recommendation, if I can take you to paragraph 47 – you may well have outlined this sufficiently but if I could just ask you again. 47(a), about the demonisation of bad youth?---Yes.

Now, this has been going on for a while?---Yes.

And can you think of any effective way, though, that that can be stopped, bearing in mind the realities of politics?---Yes. I think our elected leaders should take a breath, think about the consequences of their actions. They should do what we all tell children to do: reflect on what you are going to do and think about what effect it might have and behave responsibly. Of course it’s easy to stir up trouble, nothing is simpler, but if you are going to go into politics and you are able to get the opportunity to occupy a position of high responsibility in government, then you should exercise that power with care, discretion and foresight and not just exploit that power for some immediate advantage in the public opinion polls, in my view. I’m not an elected politician. So - - -

The restraint chair, if I can just ask you about that, finally, on my questioning: the restraint chair became known to many around about November of last year; correct?---I’m really not sure, Mr Lawrence - - -

Alright. Well - - -?---When it became known to many. I’m not even sure when I became – when it became known to me. I can’t remember when I first became aware of it.

Was it last year?---I think so. Look, the – the – I do remember Kate Wild, an ABC journalist who was then based in Darwin, who wrote a story about Dylan Voller, and I don’t think he was named at that stage, and it involved the restraint chair. I can’t remember when she published that story, but it was well documented.

Right. Can you remember the Children’s Commissioner here stating that she had serious concerns about it and it shouldn’t be used?---Yes.


5

10

15

20

25

30

35

40

45

And similarly the National Children’s Commissioner Megan Mitchell?---I don’t remember – Megan Mitchell saying that, but she may have.

And it was in March/April, I think it’s March actually that you say you became involved in this working group of this year. Well - - -?---I didn’t really become involved in it, but I thought I had become involved in it in March/April, yes.

And that was a group apparently established to amendments to the Youth Justice Act?---That’s right.

And, more specifically, restraints?---Yes.

And it was a means to bring into law what had been discovered by the media, namely, this restraint chair?---I don’t know about that. I don’t know what the purpose of it was.

But you were given the Bill and you were asked your view?---No. I wasn’t given the Bill, and I wasn’t asked my view.

Well - - -?---I obtained the Bill - - -

You obtained the Bill?--- - - - and I put forward my view.

How did you get the bill?---It was - - -

MS BROWNHILL: Commissioner - - -

COMMISSIONER WHITE: For goodness sake, Mr Lawrence.

MS BROWNHILL: Yes.

COMMISSIONER WHITE: Really, could you - - -

MR LAWRENCE: Alright.

COMMISSIONER WHITE: Could you not ask those sort of questions.

MR LAWRENCE: So you’ve got the Bill, you’ve given a comment - - -?---It was a public document. It was introduced into Parliament.

Right. And it was your view on behalf of CLANT that it was a significant improvement?---I – yes. It – there were some parts of it which I thought were an improvement, other parts which I thought could have been improved, and there were other parts which I wasn’t – and I’m still not sure to this day – whether they were an improvement or a – a retrograde step.


5

10

15

20

25

30

35

40

45

And when you gave that view to the public, because that was to the media, the ABC, was that?---Yes.

Was that is a president of CLANT?---Yes, it was.

And was there anybody in CLANT dissenting from that?

MS BROWNHILL: I object again. What is the point of that question? Mr Goldflam has given a written statement which contains numerous paragraphs dealing with this working group and his experiences with this Bill. He gave extensive evidence about this issue yesterday. None of the evidence elicited so far by Mr Lawrence about this issue is new. We have heard it all before, and to suggest that the last question somehow adds something relevant or informative to this Commission’s determinations is, with respect, absurd. It shouldn’t be pursued.

MR LAWRENCE: Well - - -

COMMISSIONER WHITE: Anything fresh and new to add? Because there’s much force in what the Solicitor-General has - - -

MR LAWRENCE: Well, I resist the description of this line of questioning being absurd, with respect. The concept of the restraint chair and its appropriateness in dealing with children in detention is central, and - - -

COMMISSIONER WHITE: There doesn’t seem to be any doubt about that, Mr Lawrence. No doubt at all.

MR LAWRENCE: Well, what I want to get from this witness is: was he representing the whole association when he seems to agree with the restraint chair, or were there other members of that body who did not agree with it?

COMMISSIONER WHITE: I think you can ask that question.

Can you answer that question, Mr Goldflam?---Yes, I can. When there’s an important matter of policy that CLANT is considering my practice as president has been to brief the committee, there’s about 15 of us on the committee, including yourself as an ex officio past president of the committee. So I did that on this issue. It was discussed, from memory, at two committee meetings, and at the second meeting it was resolved to adopt the response that I had proposed. That is, that we propose that there be a provision in the Bill which would respect, as I said yesterday, the use of force to – force that’s reasonably necessary for a lawful purpose, but that we not otherwise seek to argue that the Bill should not be passed, because although there were – there was a risk that the Bill opened the way to more use of restraints, on the other hand, it also contained provisions ..... a register, which hadn’t been in the previous Youth Justice Act to make sure that every use of restraints was recorded, and also there were new provisions which provided that – and I’m just reading from the Bill, if I may, Commissioner?


5

10

15

20

25

30

35

40

45

Of course?---That restraints could only be used in the least restrictive or invasive way reasonably in the circumstances for the minimum amount of time reasonable in the circumstances. Those were new provisions as well. So it was a difficult balancing act. And, as well as that, there was the problem that this Bill had been introduced by a government which seemed pretty intent on amending the Youth Justice Act, even though there was supposed to be a consultative process, it hadn’t been engaged, and we were faced with the dilemma of, “Well, what’s the best response to this?” Do we just come out and say, “It’s a terrible thing, don’t do it”, knowing that nobody would take any notice of that? Or would we attempt to work with the government and try and get some important improvements for the Bill? And they are tricky practical considerations we have to make in politics all the time, and the committee agreed with me that the latter course was a responsible course to take in that – on that particular issue at that particular time. Other minds may differ. And that doesn’t mean that any of us thought restraint chairs were a good idea.

MR LAWRENCE: Acquiesce means accepting something reluctantly without protest; is that what you did?---No.

COMMISSIONER WHITE: Mr Lawrence, I think that topic has been done.

MR LAWRENCE: You said earlier that you weren’t suggesting that the Attorney-General, who was then Mr Elferink, by his statements was encouraging gassing children in Don Dale, remember?---I don’t think I actually said that, but I think that’s – I think that the point you’re making is a fair one, that his statements did create a political space which made it more likely that children could be assaulted in detention.

Well, Mr Middlebrook, with whom you enjoyed cordial and productive relations with through this period, did encourage the gassing - - -

MR TIPPETT: .....

MR LAWRENCE: - - - of children, didn’t he?---Yes.

MR TIPPETT: Object.

COMMISSIONER WHITE: On what basis?

MR TIPPETT: On the basis .....

COMMISSIONER WHITE: There might be ..... there might be the other basis for objection. What on earth can Mr Goldflam say about that?

MR TIPPETT: .....

COMMISSIONER WHITE: Mr Lawrence?


5

10

15

20

25

30

35

40

45

MR LAWRENCE: Well, that’s the Commissioner’s objection. Alright. Let me end. Mr Goldflam you quoted the Attorney-General - - -

MS BROWNHILL: Well, can I rise at the present time to note that the representatives for the Attorney-General are not present in this room. They would not, from Mr Goldflam’s statement, have an indication about this line of questioning or that they should be prepared here to address it or hear it, so his interests are being undefended presently.

COMMISSIONER WHITE: Perhaps – I’ve been conscious of that - - -

MS BROWNHILL: Thank you.

COMMISSIONER WHITE: - - - right from the beginning of this quotation – reference at the top of the article of Mr Goldflam.

MR LAWRENCE: No. I accept the concern there. Can I assure everyone that I’m not being critical of the former Attorney-General here with this question. I just want to put something to him.

COMMISSIONER WHITE: We will see.

MR LAWRENCE: Fasten your seatbelts. Never mind his earlier quote. We will forget about him. But if I could, can I give you another quote.

COMMISSIONER WHITE: Why is this one different? The other one, at least, was on notice.

MR LAWRENCE: Your Honour, I think – I want to quote to you – this is from a Supreme Court judge here in the Territory, in the 70s, Muirhead J, who became – ultimately administrator here, and who was of course the Royal Commissioner into Aboriginal Deaths in Custody, and he said in the case of juvenile sentencing:

In dealing with Aboriginal children, one must not overlook the tremendous social problems they face. They are growing up in an environment of confusion. They see many of their people beset with the problems of alcohol. They sense conflict and dilemma when they find the strict but community based cultural traditions of their people, their customs and philosophies, set in competition with the more tempting short term inducements of our society. In short, the young Aboriginal is a child who requires tremendous care and attention, much thought, much consideration. Seldom is anything solved by putting him in prison. If he becomes an offender, he requires much by the way of support, and perhaps much by way of discipline, to set him on the right track.

Do you agree with that statement by Muirhead J back in the 70s?---With one qualification. I don’t agree that children, whether they are Aboriginal or not, should seldom be put in detention if they’ve committed extremely serious offences. I mean,


5

10

15

20

25

30

35

40

45

I’ve acted for children who have committed murder, and rape, and horrible, horrible crimes. And when they’re serious offenders, they have to be punished. So – I don’t want to make it sound as though I don’t agree with Muirhead J – the principles which Muirhead J has been espousing which have been by other judges in our courts on other occasions, but at the same time I don’t want to sweep under the carpet the fact that there are some very young people who commit extremely serious offences. Fortunately, not very often, but when it happens, it happens, and the justice system is required to deal with them.

Thank you.

COMMISSIONER WHITE: Thank you, Mr Lawrence.

MR GOODWIN: I believe Ms Dwyer, on behave of NAAJA, has some questions now, Commissioner.

COMMISSIONER WHITE: Since you are newly appearing, would you mind announcing your appearance when you get to the lectern for me.

MS DWYER: Certainly, Commissioner.


MS DWYER: Commissioners my name is Dwyer, I appear as junior counsel in – on behalf of NAAJA, junior to Mr Boulten of senior counsel.

COMMISSIONER WHITE: Yes. Thank you, Ms Dwyer.

<CROSS-EXAMINATION BY MS DWYER [11.17 am]

Mr Goldflam, we have heard evidence that in 2016 you were supposed to be the Northern Territory Legal Aid Commission representative on the Youth Detention Provisions Legislative Review Working Group; correct?---Yes.

You were appointed around March 2016; is that right?---Yes.

And your colleague from NAAJA, the equivalent for NAAJA was Mr Jonathon Hunyor?---Well, I don’t know if Mr Hunyor was ever appointed to the committee, but he was the principal legal officer at NAAJA at the time.

And you had known Mr Hunyor for over a decade; is that right? Approximately a decade?---More like 20 years.

Okay. More like 20 years. Fair to describe him as a very experienced criminal lawyer?---Yes.

.ROYAL COMMISSION 14.12.16 P-845 R.R. GOLDFLAM XXN©Commonwealth of Australia MS DWYER

5

10

15

20

25

30

35

40

45

I just want to ask you a brief number of questions about the Youth Justice Amendment Bill that you’ve spoken of previously. It was introduced by the former CLP government on 24 April 2016 and passed on 25 May 2016, by way of introduction; that accords with your memory?---Yes.

That Bill specifically permitted the mechanical restraint devices to be used to restrain child detainees?---If I can just refer to the – I’ve got it here a marked up copy of the Bill that I prepared in April or May. It didn’t use the word “mechanical” but it just – it did introduce the term “approved restraints”.

Thank you.

MR GOODWIN: I hesitate to interrupt. I do have copies, if that would assist the Commissioners.

COMMISSIONER WHITE: Perhaps you could hand those - - -

MR GOODWIN: And ..... to hand those - - -

COMMISSIONER WHITE: Perhaps you could hand up two copies, if you have them.

MS DWYER: Grateful to my friend.

COMMISSIONER WHITE: And it might speed the purpose – the process up a little, Ms Dwyer.

MS DWYER: Thank you - - -


MS DWYER: - - - Commissioners.

THE WITNESS: Because the Bill was quite complex, I took the trouble to prepare a document which showed in red the new measures that were being inserted into the Act, and using strike out the words that were being deleted from the Act, because just reading the bill by itself was just about impossible to figure out what it meant.

And that’s the basis of my questions, Mr Goldflam. You took the trouble to try and work out what changes had actually been introduced when you were trying to decipher it between April and May 2016; is that right?---That’s right.

And it was evident to you that it gave very significant powers to custodial staff in terms of the use of force to deal with these restraints?---It wasn’t evident that it gave more power, to me. It was – it wasn’t as simple as that. In some ways it seemed to increase the ambit of power, in other ways it restricted the powers that had been granted, that they could use. In particular the section 151AA, which introduced quite


5

10

15

20

25

30

35

40

45

significant restrictions on the use of approved restraints. So there were more – it was broader as to what restraints could be approved, although it wasn’t spelled out in the Act what they would be, because that was going to be the subject of Commissioner’s determinations. But there was – but there was a structure to the use of the discretion to use the – these restraints which was imposed.

It’s the effect of your evidence, isn’t it, that the legislation did not set clear limits on the use of the powers?---Well, it did say that the restraints could only be used in the least restrictive or invasive way reasonable in the circumstances for the minimum time – amount of time reasonable in the circumstances. That – that is fairly clear. What wasn’t so clear was what actual types of restraints could be used, and I was wrong before when I said there was no reference to mechanical, I can see that there was use of the word “mechanical” in 151AB. I apologise for that.

Yes. So it did specifically permit the use of mechanical restraint devices?---Yes.

You advocated, in terms of wanting the working group to comment on this legislation, you were advocating for a clear statement in the bill that restraints could only be permitted when reasonably necessary for a lawful purpose?---Yes.

Because those restraints, or those constraints on the use of those powers, weren’t evident in the draft that you saw were they?---They weren’t clear enough for my – to me, to make me feel comfortable, no.

And in May 2016 you raised your concerns with the secretariat of this working group that the bill was being introduced without consultation with the working group?---Yes.

Correct. Did you ever receive any explanation for why that bill was introduced without consultation with the working group?---None at all. Not that I recall.

You noted that the Bill became publicly available in April, that’s 24 April 2016. It was passed a month later on 25 May 2016. How long did you have – by the time you became aware of the Bill, how long did you have to consider it yourself?---Well, obviously no more than a month. I can’t remember exactly what day, but I didn’t get around to trying to work out what it all meant until somewhere around the middle of May, I think, from memory.

And you’re trying to work that out in the context of a busy practice at Legal Aid and your obligations for CLANT?---Yes.

Makes it difficult, I suggest to you?---Yes. Difficult.

During the limited time you did have, you discussed the meaning of the new provisions with Jonathan Hunyor at NAAJA?---I did.


5

10

15

20

25

30

35

40

45

Why was that?---Well, he – I think NAAJA had already come out saying they opposed the Bill, and I had come out saying this Bill was an improvement, so I wanted to engage with Jonathan to see if we could – well, I wanted to find out exactly what he thought was wrong with the bill. I wanted to see, work out with him what would be the best approach to take in dealing with this difficult issue.

It’s fair to say that you had a great deal of respect for Mr Hunyor’s experience and intellect?---I still do.

And it’s also fair to say that two senior and experienced lawyers, yourself and Mr Hunyor, had different views about the precise meaning of the new legislative provision?---Yes, we did. His view is more that there are some serious problems with the Bill. My view was, well, there are some problems but there are also some improvements and – on the whole, so there was a – a difference of view.

Mr Hunyor had expressed the view that that the – in – prior to the amendments, the standard for the use of force was as “reasonably necessary”, that phrase was included?---I don’t remember, possibly.

The new test, as introduced just included the word “reasonable”?---Well, I don’t remember the reasonably necessary having been in the previous Act at all.

I will just ask you this then, Mr Goldflam: it’s correct that Mr Hunyor expressed concern that the term “reasonably necessary” was not in the new legislation, and you shared that concern?---Yes – yes.

Mr Hunyor also expressed concern to you, prior to the introduction of the legislation that – of the Bill. I withdraw that. Prior to the passing of the Bill, that the new section 153(4) allowed for restraint to be used if the superintendent was of the opinion that it would reduce the risk to the good order or security of the detention centre?---Yes.

And he was concerned that that was a very broad power?---Yes.

And you shared that concern?---I did have a concern about that, yes.

And Mr Hunyor expressed his concern to you that his interpretation of the legislation was that allowing for restraint for internal escort of detainees under the new section 155 was an extension of the powers?---That’s right. I think he did specifically raise that.

Because under the previous legislation, in order for restraints to be used within the detention centre, there had to be an emergency situation and the restraints could only be used for the period of the emergency?---Well, that’s one view. Another view – it depends how you read the Act and it had never been judicially construed, as far as I know, but section 153, which was headed Discipline, did restrict the use of restraints for the purpose of discipline. But there’s another view that the superintendent had


5

10

15

20

25

30

35

40

45

powers to use force for purposes other than discipline, and they were completely unregulated by the Act. So “I’m not sure” is the answer to your question.

So that was one area where you and Mr Hunyor were trying to work out the precise nature of the powers that had been introduced?---Yes. It would have been terrific if we had the opportunity to sit down in a working group and work through these issues.

And those concerns that you and Mr Hunyor were discussing were precisely the sorts of concerns that you could have expressed to the government through the working group?---If it had ever met yes.

And if the working group had ever met you could have assisted the government with the proper drafting of that – with the appropriate drafting for that legislation?---I certainly would have tried to assist.

A different topic altogether, Mr Goldflam. On 25 October 2016, the Youth Justice Legislative Amendment Bill was introduced?---Yes.

In terms of the use of mechanical - - -?---Well, I think it sounds right.

Alright. Okay. In terms of the use of mechanical constraints, it banned the use of the restraint chair that the public saw in Four Corners?---That’s right.

It didn’t prevent, to the best of your knowledge, the use of other mechanical constraints?---I think it effectively banned spit hoods as well.

Did it prevent the use of the Hoffmann tool to strip children, to the best of your knowledge?---I think what it did, and I haven’t got it in front of me, but from memory I think what it is – said you can use the handcuffs, you can use restraining belts, you can ankle restraints. But that’s it, I think.

It didn’t mandate a clear lawful limit for the use of restraints in your view?---Not in my view, no.

So the changes in October 2016 were certainly not a comprehensive reform of that legislation?---No.

You – it’s your view, isn’t it that that is urgently required to ensure the humane treatment of children in custody?---Well, not as urgently now that the deputy CEOs direction has been promulgated, which as I said in my evidence yesterday appears to me to be very well drafted and quite clearly limits the use of force. But as I said yesterday, perhaps not super urgent, but we need to have clear standards for the use of force in the Act itself.

You gave evidence yesterday that it was very important that those standards be enshrined in the legislation, not just in a directive?---That’s my view.


5

10

15

20

25

30

35

40

45

Mr Goldflam, in your lengthy experience, 20 years or so, in working in Alice Springs, is it more difficult for Indigenous children to be granted bail in some circumstances than non-Indigenous children?---Not by virtue of their Indigenousness, but often Indigenous children are poorer candidates for bail by virtue of their impoverished and disadvantaged circumstances.

Can you, on the basis of your experience, tell the Commission the difficulties some children have in being bailed to town camps?---Yes. Actually, I think I gave some evidence about this already this morning, that it’s not uncommon for a child who comes from a town camp to be bailed to live on the town camp in the care of a specified adult family member, but with a various associated conditions such as a curfew, and not every town camp is like this, but many town camps in Alice Springs are extremely chaotic places. A lot of uncontrolled drinking, all of which is illegal, a lot of violence. For example, it’s often the case that a child will be exposed to violence amongst adults and leave the camp to get away from the violence. Not necessarily that they are being personally threatened with violence, but not to be around it. It’s a perfectly rational response, but if their bail condition is not leave the camp after dark, then they are going to be in breach of bail. So that’s just an example, but that’s the sort of thing.

Is that one reason for your suggested proposed measure that supported bail accommodation be introduced?---Yes.

That question then feeds into this one, which is you will see a number of Indigenous children, then on remand prior to sentence?---Yes.

How does that period on remand impact on the ultimate sentence that is imposed?---Well, of course, a sentence will be backdated to the date when the child was taken into custody. So account is taken of the time they have spent on remand. But what can happen, and does happen sometimes, is that children effectively get time served, as we call it. In other words, they have been on remand for three months and four days, and the judge sentences them to three months and four days backdated to three months and four days ago. They get out and, reading between the lines, they may well have served longer than if we had been able to get their case finalised after two months and four days. And my belief is that it happens quite a lot that children on remand end up serving longer than the interests of justice would have optimally required that they serve.

You will have come to know in your experience what the likely tariff is for particular offences committed in particular circumstances?---Yes.

Is it your experience that where Indigenous children are spending time on remand, they often end up with longer sentences than you would anticipate?---I can’t say often. I don’t know. I don’t have enough – I don’t act for sufficient children in those circumstances. As a defence lawyer, one thing that is always an alarm bell is when you have got somebody in custody and you are thinking, “Well, they might be – they might have already done more time than they’re looking at.” And so if you have got


5

10

15

20

25

30

35

40

45

any file management skills, you put them on the top of your pile of things to do. The last thing you want to do, as a defence lawyer, is get your client a minute more than they need to get.

But you’ve had an experience of clients being sentenced to more than you would expect them to get if they hadn’t been in custody for that period of time on remand?---I don’t know if I can think of any – I can’t think of any examples where my own clients, that’s happened to, but yes, I’ve seen it happen.

You’ve given evidence in relation to the significant increase in children – the numbers of children entering the criminal justice system and you’ve suggested a range of factors that might be linked to that. In your opinion, is one possible reason for that increase an increase in the number of children in care?---Yes.

Can you provide evidence to the Commission, then, about your experiences of the link between children in care and children in the criminal justice system?---Well, I can’t do any better than Dylan Voller did. I mean, he gave very compelling, with respect, evidence that when he was in care and living in a residential home he was living with older children who introduced him to criminal activity, and certainly that’s not an isolated phenomenon. And secondly, there is this problem, that has also been alluded to by other witnesses in this inquiry, of children in residential care being charged with offences that they committed in the course of being in the care, some sort of offence against a care worker or property damage or something of that nature. So there is, in my view, a link. It’s not – I can’t offer a view as to whether or not being placed in care makes you more likely to commit offences, or committing offences makes you more likely to be placed in care, or both. It’s complicated. But there’s clearly a correlation between being placed in care and committing offences.

My last topic, Mr Goldflam, relates to your suggestions of proposed measures. You understand that the Commission is very interested in any measures that might reduce the number of juveniles in custody?---Yes.

And you’ve suggested some for consideration. I’m referring to paragraph 47 of your statement titled In Relation to Youth Justice. Can I ask you about paragraph (f) of that statement. You say:

Large sections of the Indigenous community, including many youths, are alienated and disengaged from the criminal justice system.

Can you explain what you mean by that?---In Central Australia there – there’s more than one criminal justice body of law. There’s the body of law that I know about and that we know about, and then there are traditional bodies of Indigenous law that run in Central Australia, which I don’t know about. Perhaps nobody in this room knows much about. But for many people growing up in Central Australia, and young male offenders are at the age when they are going off to business camp and being initiated, and going through ceremony. Their law is real to them and it operates on them. And, in many cases, it is what motivates and perhaps even drives their behaviour.


5

10

15

20

25

30

35

40

45

And we’ve gone out of our way in our system to say, “We don’t recognise your law.” In fact, after the Intervention we have had the Commonwealth Crimes Act being amended to make it unlawful for a judge to have regard to any cultural practices when assessing the objective seriousness of an offence. Previously, in the Crimes Act, there had been a sort of multiculturally inspired provision saying that you can have regard, you have to have regard, to cultural practices when assessing the objective seriousness of the offence if there are cultural factors, and we have reversed that just for the Northern Territory, and in effect just for the Aboriginal people in the Northern Territory, because by and large section 16AA is what – it was part of the Stronger Futures package, part of the Intervention package quite clearly on the Aboriginal community. I don’t suppose many young people in Central Australia have read 16AA of the Crimes Act, but the message – the message we are sending out is, “Your stuff does not count.” And that – the response to that, in my view, is that for many Aboriginal people in our communities, “Okay, you’re saying our stuff doesn’t count. Well, your stuff doesn’t really count all that much for us either. We don’t get it. We don’t understand it, and – but we do get it that you’re saying whatever legal systems you have got traditionally just do not have any value.” And that leads to what I describe in my statement as alienation or disengagement.

And it’s on that basis that you say, if the government is serious about authentic engagement with Indigenous young people, there needs to be an amendment to section 16AA of the Crimes Act?---Yes.

So that customary law can be taken into account?---I believe that very strongly, yes.

The next subparagraph is (g). You suggest the age of criminal responsibility should be raised to 12 years. What’s the basis of that suggestion to the Commission?---Well, I can’t remember if it was in 2014 or 2015 there was a major report published about the age of criminal responsibility by the – Jesuit Social Services was one of the bodies which authored this report. I read the report, and it contained a wealth of detail about the reasons why, in most countries in the world, the age of criminal responsibility is higher than 10, and it’s to do with – basically, with neurobiology ..... expert in neurobiology, but I was satisfied after reading this report that there’s a strong evidentiary base for taking the view that children under 12 – their brains aren’t developed to the point where it’s appropriate to hold them criminally responsible. So CLANT was invited, along with many other bodies, to join in a call to adopt the recommendations in this report, and there were dozens and dozens of organisations around Australia which did so, and CLANT was one of them.

Do you suggest there would need to be anything else introduced in terms of supports for the age group of 10 to 12?---I do, and I think I say this in my statement, that if there’s a 10 or 11 year old who gets into trouble then they should be referred to the welfare system.


5

10

15

20

25

30

35

40

45

Yesterday you referred to criminogenic factors. In your years of experience, and based on the reading that you’ve done, do you agree that some criminogenic factors include poor housing, poor education, and poor health?---Yes.

That’s true for Indigenous and non-Indigenous people?---Yes.

Do you agree that if the government is serious about meeting targets for reducing the numbers of young people in custody there will be a need for reforms to tackle those systemic issues?---Yes, of course.

You’ve been asked some questions about FASD and screening for FASD?---Yes.

Do you think that it would be appropriate for routine screening to be introduced for young people in custody, not just for FASD, but comprehensive screening for things like cognitive impairment and hearing issues?---I certainly do. And we’re – we’re talking about – that’s an achievable goal, because we are not talking about hundreds of children. At any one time in the Northern Territory at the moment we have got maybe a score of children in custody. So that’s a doable thing, and it would be enormously useful. That could save lives.

In relation to the issue of hearing, it’s your experience, isn’t it, that hearing is related to – or poor hearing – hearing issues are related sometimes to criminal offending?---Yes.

So can I suggest to you – and tell me if you agree, that making, introducing reforms that improve hearing may well lead to a reduction in criminal offending?---It – it may do. Obviously there’s plenty of other benefits from diagnosing kids with hearing disorders. It might mean they get an education, which they can’t get because they can’t hear, otherwise.

Finally, Mr Goldflam, in paragraph 27 of your statement, you refer to mandatory sentencing?---Yes.

The initial regime for mandatory sentencing introduced years ago made mandatory sentencing applicable to uniting people and property offences?---That’s right.

But that no longer occurs; is that right? But it’s still the case that mandatory sentencing applies when children are sentenced under the Sentencing Act in the Supreme Court?---Yes.

What’s your view on whether that’s appropriate or not?---Well I’m opposed, strongly opposed, to mandatory sentencing per se. As Mildren J said in Trenerry v Bradley, I think it was, mandatory sentencing, “is the antithesis of just sentence”. I don’t think there are very many young people who are currently, or over the last 10 years, have been sentenced to periods of detention which they wouldn’t have got had it not been for mandatory sentencing, because they are only dealt with in the Supreme Court under the Sentencing Act in particularly serious cases where, for example, they are


5

10

15

20

25

30

35

40

45

charged with an offence that carries a sentence of – a maximum sentence of life imprisonment. So I’m not suggesting a lot of kids are languishing directly because of mandatory sentencing, but mandatory sentencing has a toxic effect on the whole justice system, and it’s part of the hyper punitive approach taken to the administration of criminal justice by some governments and it – as I was talking about in another context, there are repercussions that follow indirectly. So I do think that the mandatory sentencing issue, although it’s no longer as directly and obviously applicable to young people as it was back in the late 1990s, is still an issue of concern which does flow through to young people indirectly.

And mandatory sentencing, as imposed on children, sends the wrong message in your view about what is appropriate in terms of the criminal justice system dealing with children?---Yes.

Nothing further, thank you, Commissioners.

COMMISSIONER WHITE: Thank you, Ms Dwyer.

MR GOODWIN: I believe Ms Graham has some questions, Commissioners.

COMMISSIONER WHITE: Thank you, Ms Graham.

<CROSS-EXAMINATION BY MS GRAHAM [11.45 am]

MS GRAHAM: Mr Goldflam, I appear for the Central Australian Aboriginal Legal Aid Service?---Yes.

You’ve spoken a lot about the public debate involving demonisation of youth, and I just would like to take you back to that topic briefly. Your view that the way that people in leadership roles in the government speak about issues of youth justice on Facebook, or on social media, or when they’re making statements that are not formal media releases or introducing Bills into parliament, still have the effect of shaping the policies that are ultimately acted on by governments?---Yes. I’m sure they do.

COMMISSIONER WHITE: I’m sorry to – I am sure Mr Goldflam has a view about that, but it does seem to be just a little bit speculative and perhaps outside the usefulness of his expertise. We can all have a view about that, Ms Graham.

MS GRAHAM: Yes, Commissioner.

COMMISSIONER WHITE: One of the problems of coming at the tail end of the questions is that most of the matters, of course, have been explored already. So maybe you can find something fresh to keep us on the edge of our seats.

MS GRAHAM: Yes.

.ROYAL COMMISSION 14.12.16 P-854 R.R. GOLDFLAM XXN©Commonwealth of Australia MS GRAHAM

5

10

15

20

25

30

35

40

45

In your experience dealing with youth in the criminal justice system, is there a labelling effect on children when they’re spoken about in these demonising ways, in a sense that they might perform to the pejorative labels?---Yes. That is something I haven’t talked about in my evidence before, but it does disturb me, what the effect on the children who are being demonised is. So apart from the fact that demonisation is part of the political process, which can result in more punitive systems of laws and conduct, the children themselves – a lot of it must filter down to them and the effect on them must be – well, I don’t know, but I’ve seen children in court over many years, and there’s a lot of shame. It makes them – obviously, being paraded through the foyer of the Alice Springs Courthouse in handcuffs by a burly guard from one end of the building to the other, in front of whoever happens to be sitting around, is a humiliating experience. And that sort of shaming is, I have no doubt, compounded when they see on TV some politician talking about them in the sort of terms that I’ve given evidence of earlier. So I don’t know – I don’t remember ever asking a child how he or she felt about being labelled as one of the worst of the worst, or whatever it is that has been thrown at them. But I’m sure it has a really corrosive effect on their self-esteem, and on their sense of identity, and their sense of engagement in the community. I was talking about disengagement and alienation. I’m sure it contributes to that.

And in your view is a child’s disengagement and alienation a criminogenic factor?---Well, it’s – of course it is. It promotes antisociality. That’s what alienation means: it means you are separated from the community.

And so the language used around youth and the demonisation of them can be a self-fulfilling prophesy, in effect?---I believe so.

Feeds the cycle?---I believe so.

You spoke yesterday about one of your concerns in the care and protection space, particularly in relation to parents who live in remote communities not attending court, or not being assisted to attend court. Is it your view that the non-participation of parents can affect the court’s ability to determine what is in the best interests of a child?---Well, of course. There’s a principle in the Care and Protection of Children Act called – I can’t think what it’s called at the moment, but a principle which says that you need to work to promote the maintenance of the child’s connection to their community and their culture and their Aboriginality. If the parents aren’t there in the court, and are not having a voice, then of course that’s going to limit the court’s opportunity to make sure that the child still remains connected to their culture and their community and their family.

Is one particular way that that operates that it can impact on whether kinship care options can be identified and pursued?---Certainly.

There’s a report that you’ve mentioned, some research done by an academic, Thalia Anthony. I wonder if a report to be turned up on the screen. It’s a report of June 2012 titled Addressing the “Crime problem” of the Northern Territory Intervention:


5

10

15

20

25

30

35

40

45

Alternate Paths to Regulating Minor Driving Offences in Remote Indigenous Communities. Is that the research that you had in mind?---Probably. I - - -

I might take you to some of the - - -?--- .....

The specific findings and recommendations in a moment, that might then be able to confirm whether that’s the research that you have in mind. But, before I do that, could I just ask you a bit about unauthorised driving in the Northern Territory. It’s the case, isn’t it, that unauthorised drivers, for example drivers not using a licence or being disqualified or driving in an uninsured or unregistered car, are not always unsafe drivers?---Not always, no.

And is it the case in the Northern Territory that unauthorised driving offences can result in some offenders receiving fines or other punishment including imprisonment?---Yes.

And can also result in those offenders receiving very lengthy licence disqualification periods?---Not so much very lengthy, but I mean it’s not uncommon in the Alice Springs court to see somebody appear in court on a charge of driving disqualified who has got 15 prior drive disqualified offences. There’s nothing particularly unusual about that. And usually people will be disqualified for a year or so, but if they have got a lengthy record it will be longer. There are mandatory disqualification provisions for serious repeat drink driving offenders and so in some cases there’s a mandatory disqualification period of five years.

This area is particularly important when we consider the remote communities and the lack of public transport available to people in Northern Territory; is that right?---That’s correct.

Is it your view that an inability to have a driver’s licence can lead to social isolation, financial problems, and further interaction with the criminal justice system?---Yes.

You mentioned the availability of – well, I withdraw that. You mentioned people losing their licences on account of non-payment of fines?---That’s right.

Is it the case that the fines that can give rise to a loss of licence do not necessarily have to be related to any traffic offending?---They could be for anything.

So, for example, it could be non-payment of a fine for failing to vote and then that results in losing a licence?---That’s unlikely, I think, but it could be a fine for any offence yes. It could be a fine for failing to vote.

Perhaps if we can turn now to page 7 of the report, and under the heading Quantitative Findings - - -?---I think this is the research I was talking about, now I’ve had a look at ..... contents.


5

10

15

20

25

30

35

40

45

There’s mention, for example, that an analysis of court lists in Indigenous prescribed communities reveals that almost half of all offending related to driving and with two-thirds of driving offending relating to licensing or registration?---Yes.

MS BROWNHILL: Commissioners, I rise to object to the elicitation through Mr Goldflam of this kind of material. It is open to my learned friends to put in a written submission. They can seek to have this document tendered. We don’t need to all be sitting here using up hearing days that could much more usefully be put elsewhere while Mr Goldflam is asked to agree to numerous propositions which amount to no more than a submission as in how things should be done or what the research reveals or whatever it might be. In addition to that, none of this material or refers to youths in particular. None of the questioning we have had about driving relates in particular to youths. It’s not clear, to us at least, which of these statistics apply to adults versus youths or generally across the board.

MS GRAHAM: Commissioners, having now identified that this is the research Mr Goldflam was referring to earlier in his evidence, I don’t propose to take him through the findings, but that has now been identified. I do have - - -

COMMISSIONER WHITE: What do you want to ask him, then?

MS GRAHAM: The final two matters I wish to ask him in relation to this topic is to take him to two recommendations and ask him whether, to his knowledge, they have been implemented. But otherwise the Commission can receive this material as has been suggested.

COMMISSIONER WHITE: Well, perhaps we will let you test it by going to the recommendations. What page are they on?

MS GRAHAM: Yes. Thank you. It is the next page, please – sorry, two further pages. I think it’s page 9. I apologise, page 8 is the first recommendation.

COMMISSIONER WHITE: And what – are you ask to Mr Goldflam does he agree with it or not agree with it? Is that - - -

MS GRAHAM: Whether he is aware that it has been implemented.

COMMISSIONER WHITE: I suppose he might be able to answer that. We will see.

THE WITNESS: I think that the last government did have – did put in, I seem to have in my head - - -

COMMISSIONER WHITE: If you don’t actually know, Mr Goldflam, I don’t think you need to think about what you have read or might know about it. Just say you don’t know?---I don’t know.


5

10

15

20

25

30

35

40

45

Thanks.

MS GRAHAM: Thank you, Mr Goldflam. And page 10, please. Recommendation 14?---No. I’m not aware of that change having been made.

Thank you. That can be removed from the screen.

COMMISSIONER WHITE: Thanks, Ms Graham. That can probably – if we don’t already have a copy of that document, you might check kindly with senior Counsel Assisting or the Solicitor Assisting. If we don’t have it, then perhaps you can make arrangements for that to be made available to the Commission.

MS GRAHAM: Yes.


MS GRAHAM: Mr Goldflam, you were asked some questions about the various pressures and realities of working in a youth detention – I withdraw that – a Youth Justice Court setting?---Yes.

In your many years’ experience working in Central Australia, is it your experience that CAALAS lawyers have often had much greater case loads than the Legal Aid Commission lawyers working in the criminal jurisdiction?---Certainly.

And often with fewer resources available to them?---Yes.

You’ve talked about some of the real dilemmas for legal representatives in relation to exploring issues such as cognitive assessments or capacity issues. Is it also the case that – and there can be dilemmas for the lawyers and for children in making decisions about what to do in their criminal cases, that merely pleading not guilty can result in multiple court dates and a longer period of time through which the case goes to court before it can be finally resolved?---Well, certainly. And not only that, but for the lawyer there’s often a problem: you get the brief as it is initially served by the prosecution, and you analyse the brief, the evidence isn’t that strong. You can see that there’s some evidence there, perhaps more evidence will come, perhaps it won’t. So it can be quite a dilemma as to even how to advise your client. But there’s nothing unusual, I mean defence lawyers the world over, I suppose, have that sort of dilemma.

And it’s not uncommon for that delay to interact with either a child being on remand being subject to onerous bail conditions?---That’s right.

And so it might well be the case that a child is likely to be more punished by the process of going through court than the ultimate punishment they might receive on the resolution of the case?---Yes. They could be on bail for months, with all sorts of difficulties attendant to that, being picked up by police on numerous occasions while on bail because they failed to report or they weren’t at home by 6 o’clock or


5

10

15

20

25

30

35

40

45

whatever it is, so that the process of being on bail can be more punitive ultimately than the good behaviour bond that they are given at the end of it.

And, indeed, the process of being on remand for lengthy periods?---Even more so, yes.

In your view, could these issues be addressed better through a specialist youth court in Central Australia?---Yes.

And more improved resourcing of legal services such as Aboriginal Legal Aid Services?---Yes.

Thank you, those are my questions.

MR GOODWIN: I think Mr O’Brien has some questions, Mr Commissioner.

COMMISSIONER WHITE: Mr O’Brien, how long do you think you will be?

MR O’BRIEN: 10 minutes.

COMMISSIONER WHITE: Promise?

MR O’BRIEN: A lawyer’s promise.

COMMISSIONER WHITE: No, I don’t want one of those.

MR O’BRIEN: No.

COMMISSIONER WHITE: I want a real promise.

MR O’BRIEN: 10 minutes.

COMMISSIONER WHITE: Okay. We have been here since 9.30, so - - -

MR O’BRIEN: I know. I’m conscious of Mr Goldflam being a witness for so long .....

COMMISSIONER WHITE: You’re the last cab off the rank, are you?

MR O’BRIEN: Apparently.

COMMISSIONER WHITE: Northern Territory, too?

MS BROWNHILL: I’ve got no questions at this stage.



5

10

15

20

25

30

35

40

45

MS LEE: I have one question. Two minutes.

COMMISSIONER WHITE: Well, we might just walk away if it takes too much longer because we might need a short break, but let me keep you to your promise, Mr O’Brien.

MR O’BRIEN: Yes.

COMMISSIONER WHITE: Are you alright, Mr Goldflam. I haven’t asked you?---12 minutes, I can manage, yes.

We feel much the same.

<CROSS-EXAMINATION BY MR O’BRIEN [12.03 pm]

MR O’BRIEN: These series of questions might be a bit choppy because I have literally taken out a lot of questions out that have been asked before. You heard Dylan Voller’s evidence in these proceedings?---I watched it from my office, most of it, on the Web cast, yes.

Okay. So the first series of questions that I have in relation to the operation of the Youth Justice Court in Alice Springs particularly, as you would have heard that at 13 years of age – only just 13 years of age he was sentenced to an 18 months fixed term. Did you hear that evidence?---I don’t remember the age, but I remember hearing from Ms Carroll that he got an 18 month sentence when he was young, yes.

In fact, it may have come from her. But in any event, an 18 month fixed term imposed in 2011 when the offender was 13 years of age, you understand that to be the situation?---I’m not sure what his age was, but if you are telling me it was 13.

I’m telling you that’s the situation. You understand that?---Yes. Accept that.

COMMISSIONER WHITE: Well, you could ask Mr Goldflam to assume he was 13. That will do for the purposes, I’m sure, of your question.

MR O’BRIEN: Yes. I think we’re on the same page now. The – I want to ask you about the efficacy or the appropriateness of a fixed term of that sort of duration. Regard – leaving aside the type - - -

COMMISSIONER WHITE: What do you mean by fixed term, Mr O’Brien?

MR O’BRIEN: Well, there’s no non-parole period. Do you know what I mean by a fixed term sentence?---Not exactly, no.

.ROYAL COMMISSION 14.12.16 P-860 R.R. GOLDFLAM XXN©Commonwealth of Australia MR O’BRIEN

5

10

15

20

25

30

35

40

45

Well, there’s no non-parole period set, and the term is for a total of 18 months. That’s what was imposed. Did you understand that?---It’s very unusual, yes.

Yes. Are you - - -?---Is that what you are asking me to - - -

Yes. I’m asking you whether that’s an unusual sort of disposition?---Very unusual for a child to have an 18 month sentence imposed on him or her without a non-parole period or a partly suspended period being fixed, yes.

And you say it’s unusual. What do you say about the appropriateness of a sentence such as that - - -

MS BROWNHILL: I object.

MR O’BRIEN: - - - that leaving aside.

MS BROWNHILL: I object.

THE WITNESS: I can’t comment on - - -

COMMISSIONER WHITE: Just a moment, Mr Goldflam. Sit down, Mr O’Brien, while the Solicitor-General articulates the objection.

MS BROWNHILL: My objection is to inviting Mr Goldflam to express his opinion about a sentence which has been handed down by a court.

MR O’BRIEN: Well, the qualification to the question was leaving aside the nature of the offences, the question is – well, I will come at it at a different way, if I may.

COMMISSIONER WHITE: I think you might need to do that, a completely different way.

MR O’BRIEN: So you have said in your evidence that an ordinarily a sentence should be structured such that a portion be served in custody, if there’s to be an imposition of a custodial sentence, and a portion be served either on parole or alternatively a suspended portion of sentence; correct?---I didn’t say “should be”. I said it usually is structured that way.

Usually is. So if that’s – and in the sense of a fixed term of the type of which we just talked about, could that be a crushing sort of sentence upon a 13 year old child, do you think?---I don’t know. I mean - - -

In the way in which the authorities and the case law describe crushing sentences?---Well, as I understand the authorities a crushing sentence - - -

MR O’MAHONEY: I object, Commissioner.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Just a minute.

MR O’MAHONEY: The broad reference to authorities is inviting, in my submission, a witness to speculate on a set of circumstances that the witness, on his own evidence, has no knowledge of.

COMMISSIONER WHITE: It’s alright, Mr O’Mahoney. You are still asking a comment on a sentence about which not much is known. There have already been some observations about this from Ms Carroll’s very powerful evidence on that particular point, Mr O’Brien.

MR O’BRIEN: I’m going to move on.

COMMISSIONER WHITE: Thank you. Those 12 minutes are ticking by.

MR O’BRIEN: Yes. The – I want to ask you about the courts, the prosecutors, the defence lawyers and the magistrates in the youth justice area. You talk in your statement about, at paragraph 47(i) about Youth Justice Courts, including court proceedings, being delivered in a – with a trauma informed approach?---Yes.

Do you see good reason for training for magistrates, defence lawyers, and prosecutors in that area?---Yes.

And do you think that there is a trauma informed approach taken by each of those players within the youth justice scene presently?---Not always, no.

And are all three contributors sometimes lacking in those certain types of approaches from your experience and from what you’ve seen?---Yes. Speaking as a defence lawyer, I do not believe that I have always appeared for young clients using a trauma informed approach, because for many years I wasn’t even aware of the concept, and I have never had any training in it.

Thank you?---So I am not one of those people who should be a role model for this sort of practice.

Did you hear the evidence of Dylan Voller in relation to the – his feelings when restrained in a restraint chair?---Yes, I think I did.

To remind you, this is only part of - - -

COMMISSIONER WHITE: Mr O’Brien.

MR O’BRIEN: Yes.

COMMISSIONER WHITE: Don’t read out Mr Voller’s evidence, please.


5

10

15

20

25

30

35

40

45

MR O’BRIEN: He said to the effect – or he explained how he felt in that chair and it was pretty harrowing, you would accept?---Yes.

You’ve been asked a lot of questions about your association’s approval of the legislation which enabled the restraint chair?---Yes.

Do you think, in hindsight now, that it was a mistake for a Criminal Lawyers Association to accept legislation that had the impact of causing those sort of feelings upon a young boy in that situation?

MR O’MAHONEY: I object. That is not a fair question and I’m conscious of the fact that the witness isn’t represented. That wasn’t his evidence, and if that question is going to be put it really must be put fairly by reference to the evidence that this witness gave.

COMMISSIONER WHITE: Yes, thank you, Mr O’Mahoney. I’m sure Mr Goldflam will be able to actually defend himself because, in fact, there’s a – there are a whole raft of provisos around that, Mr O’Brien.

MR O’BRIEN: There are, and that’s why he can answer it – that’s why he can answer. If I’m going to put it in submissions, it has got to be put to the witness. It’s only fair.

MS BROWNHILL: He has already given the evidence.

COMMISSIONER WHITE: Well, yes, I know. But it’s obviously put in a slightly more challenging way now. So Mr Goldflam would you like to respond to the suggestion that you might have made an error of judgment in not fighting more strenuously to keep out restraints of that kind altogether, because I think that is at the heart of what the question is?---Yes. I can answer the question, Commissioner. We may have made an error; I may have made an error. I mean it’s my responsibility. I was the one who came out quickly saying to the Attorney-General, “I think that this legislation is an improvement”, and my loyal committee decided that they would support that. So I take responsibility for this. Obviously, I didn’t want restraint chairs to be used. I thought restraint chairs – I couldn’t see how they should be used in the sort of situations that we now know they were used in. Absolutely outrageous and unlawful, always has been and always will be, to use them as punishment. That’s torture. However, at the time when this Bill was put forward, I hadn’t done much reading about restraint chairs. It seemed to me that there might be situations where – if, for example, a child urgently needs some medical intervention to save their life and the child is completely flailing about and unable to be restrained, that a restraint chair could conceivably be the safest and most humane way to administer the medical treatment that would be required. So, in my mind, I was open to the idea that there could be a place for restraint chairs in those extreme situations. Obviously not to put somebody in a chair for hours as punishment. It’s horrible. But you’ve got to go back to May/April of this year, when it wasn’t public as to exactly what the restraint chair had been used for in the case of your client, and even if there was


5

10

15

20

25

30

35

40

45

some strong sense that the restraint chair had been misused, that didn’t – in my view at the time – necessarily mean that there was no role whatsoever for the use of a device like that. Now, that’s what I thought then.

Have you changed your mind?---I now am very relieved that the incoming government decided that there were ways of restraining children without having to use restraint chairs at all. So what an enormous relief.

Last question: is there a sense of embarrassment as to your position back then in May of 2015.

MR GOODWIN: I object.

MS BROWNHILL: Why is that relevant?

MR O’BRIEN: I agree it’s irrelevant. I withdraw it. I simply - - -

COMMISSIONER WHITE: That was the last question, you said.

MR O’BRIEN: I think I’m less than 10 minutes.

COMMISSIONER WHITE: No. You said that was the last question. Not batting out until tea time.

MR O’BRIEN: It’s always hard going last, Commissioner, but here I am standing and last man to ask the questions.

COMMISSIONER WHITE: I think there are more to come.

MR O’BRIEN: Let me check my notes. No. Thank you, Mr Goldflam.

COMMISSIONER WHITE: Thanks, Mr O’Brien. I think you indicated, which of the – I mean, you have had several, you have got one question, haven’t you?

<CROSS-EXAMINATION BY MS LEE [12.15 pm]

MS LEE: One question, sir, less than two minutes.

Just building on some of the evidence that you gave earlier from questions by Ms Dwyer, the comments you made with respect to section 16AA of the Crimes Act are equally applicable, are they not, to section 104A of the Sentencing Act in the Northern Territory?---No. I don’t agree with that. Section 104A of the Sentencing Act requires that if matters to do with customary law or cultural practice are to be introduced in a sentencing proceeding then they must be introduced by way of evidence supported by affidavit or oral evidence. Unlike many of my colleagues, I

.ROYAL COMMISSION 14.12.16 P-864 R.R. GOLDFLAM XXN©Commonwealth of Australia MS LEE

5

10

15

20

25

30

35

40

45

welcomed that provision when it was introduced, in about 2007 from memory, because this in effect was the only statutory recognition that there was such a thing as customary law in our entire statute books, and I thought, “Okay, it’s cumbersome, it’s inconvenient, but finally – instead of people like me standing up at the bar table and saying, ‘I know about customary law, my client was forced to’, blah, blah, now we were going to do it in a proper evidentiary way which had proper legal foundation, and I applaud that.” Unfortunately, section 104A has in effect been rendered almost nugatory by the operation of section 16AA of the Commonwealth Crimes Act.

Thank you, Commissioners. Thank you, Mr Goldflam.

COMMISSIONER WHITE: Thanks, Ms Lee.

MR GOODWIN: No re-examination, Commissioners.

COMMISSIONER WHITE: Thank you. Mr Goldflam, thank you very much indeed for your very helpful evidence to the inquiry. We particularly thank you for the considered way in which you have developed your measures that might be of assistance to us when we are considering recommendations?---Thank you, Commissioners.

<THE WITNESS WITHDREW [12.17 pm]

COMMISSIONER WHITE: Mr Callaghan, are we now moving to a matter that concerns only the Northern Territory Government?

MR CALLAGHAN: We will, in a moment. There’s just a couple of documents that are probably best tendered in the presence of everybody.

COMMISSIONER WHITE: Right. Can we do those, and then we will take – before we do that, so the court can be – not the court reconstituted, so that the – those who are at the bar table can then go and we can deal with that other matter, and we will take a short break.

MR CALLAGHAN: Can we attend first to some matters associated with Mr Voller’s evidence.

COMMISSIONER WHITE: Yes.

MR CALLAGHAN: We are in a position now to tender a redacted version of the annexures to the statement.

COMMISSIONER WHITE: 53. Yes, exhibit 53 for the redacted annexures to the statement of Dylan Voller.

.ROYAL COMMISSION 14.12.16 P-865 ©Commonwealth of Australia

5

10

15

20

25

30

35

40

45

EXHIBIT #53 REDACTED ANNEXURES TO THE STATEMENT OF DYLAN VOLLER

MR CALLAGHAN: Also associated with his evidence, Commissioners, you will recall that you watched some video footage from a series of four of the incidents referred to in his statement. I identified them at the time, but can I tender each of those individual items of footage, and within each incident there’s more than one. It will be convenient to do it this way, and to make it even more convenient, I have prepared a schedule which should enable you to just, in effect, write in exhibit numbers along each – alongside each item.

COMMISSIONER WHITE: Do you have a copy of that schedule that you could perhaps give to Mr O’Mahoney at least? Or – thank you.

MR CALLAGHAN: I did .....

COMMISSIONER WHITE: To Mr – and perhaps to – and to Mr O’Brien. If you don’t have another copy, well, he will probably need to use it – he will give it back to you.

MR CALLAGHAN: No. It’s alright and I did discuss it with the solicitor at least and I don’t apprehend there’s any difficulty with doing it this way.


MR CALLAGHAN: And you will see at the base of that document, there is a direction that is proposed.

COMMISSIONER WHITE: Is there no demur from that proposed procedure? Thank you. Mr O’Brien.

MR O’BRIEN: It’s the first I’ve seen of it, unfortunately. I have to really consider it – it is a tabulated document referring to - - -

COMMISSIONER WHITE: Yes. They were - - -

MR O’BRIEN: .....

MR CALLAGHAN: To be clear, it is no more than a record of the footage which was screened during Mr Voller’s testimony.

COMMISSIONER WHITE: It’s – just properly – yes, better identifies it.

MR CALLAGHAN: That’s all, for the purposes of the record so that everyone knows what it is that the Commissioners have seen. And, for the moment at least,


5

10

15

20

25

30

35

40

45

it’s not to be published. None of it was screened publicly during Mr Voller’s evidence, and that will remain the case until further order.

MR O’BRIEN: Yes, I understand that.

COMMISSIONER WHITE: And that’s for the reasons that have already been articulated about - - -

MR O’BRIEN: I simply take it on notice and if I have got any trouble I will notify the solicitors.

COMMISSIONER WHITE: Would you do that, thanks, Mr O’Brien. I don’t think you will. I think it’s actually to keep - - -

MR O’BRIEN: I don’t think I will.

COMMISSIONER WHITE: No. It’s just to keep track of – actually material we saw in the course of the hearing and it would be possible that it got a bit lost.

MR O’BRIEN: Yes.

COMMISSIONER WHITE: So the – I will just put the exhibit numbers down sequentially. So under exhibit 5, that will be 54 and 55 and 56. Under exhibit 7, 57, 58. Under exhibit 8, exhibit 59, exhibit 60. And under incident 9, exhibit 61 and exhibit 62. And Commissioner Gooda and I agree, and thereby direct, that the Commission directs until further directions that the above exhibits be confidential against the world at large.

MR CALLAGHAN: Just for clarity for the transcript later on, with respect Commissioner when I referred to the first three incidents, you used the word “exhibit” but it’s incident 5 and so on in relation to the last incident you referred to it as incident but the others were referred to as exhibits.

COMMISSIONER WHITE: Right. Thank you.

MR CALLAGHAN: That’s just for the transcript.

COMMISSIONER WHITE: Yes, thank you.

MR CALLAGHAN: And we are in a position now, all parties having had their say, to tender the statement of Ms Carroll. So I tender the statement of Antoinette Mary Carroll or a redacted version thereof, I should say, and it includes redacted annexures.

COMMISSIONER WHITE: Thank you. That statement of Ms Carroll, together with the annexures is exhibit 54. Sorry, not 54. No, goodness me, I’ve been here too long. 63. Thank you.


5

10

15

20

25

30

35

40

45

EXHIBIT #63 STATEMENT OF MS ANTOINETTE MARY CARROLL WITH ANNEXURES

MR CALLAGHAN: I think that’s the only housekeeping to which we have to attend for the moment, which may be the point at which the other parties – apparently not. No. As - - -

MS BROWNHILL: Can I just say, for the record as much as anything else, that as promised when vulnerable witness AD gave his evidence, we indicated that we would provide documents and a chronology as an aide-mémoire. We have now provided that to my learned friend’s instructors, and we expect that during the next set of hearings whenever that is slated for – I can’t remember off the top of my head – that those documents will be tendered, and I can also inform the Commission that in relation to Mr Voller a similar set of documents will be provided by next Friday.

COMMISSIONER WHITE: Christmas Eve?

MS BROWNHILL: This Friday.

COMMISSIONER WHITE: This Friday.

MS BROWNHILL: Sorry. Yes, this Friday, I am told. Thank you.

COMMISSIONER WHITE: Working your team hard, Ms Brownhill.

MS BROWNHILL: Yes.

COMMISSIONER WHITE: Alright. Thank you. As I had understood the messages that I received, the Northern Territory Government and senior Counsel Assisting were content to have the matter of the production of the documents dealt with on the papers, in the sense that you didn’t want to supplement what you had submitted. Is that still the case? It’s just about timing. Commissioner Gooda and I would like to take a short break.

MS BROWNHILL: I have no difficulty with that. I do want to be heard very, very briefly in relation to – I acknowledge there has been a series of exchange of written submissions and that has been very helpful to clarify the position, so it would probably be no more than 10 minutes on my part.

MR CALLAGHAN: Alright. I was happy for it to be done on the papers, but - - -

COMMISSIONER WHITE: On written submissions. Yes. On .....

MR CALLAGHAN: On the written submissions.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Alright. Well, we can have the luxury then of a 15 minute break, I think. Alright. Thank you.

MR CALLAGHAN: There’s – when – I’m sorry, Commissioner, when we resume, is it with all parties or just the - - -

COMMISSIONER WHITE: It’s not a closed court, but

MR CALLAGHAN: No. But are the other parties excused, or do they need to – they may not need to - - -

COMMISSIONER WHITE: Don’t need – it does not concern anybody else. It’s an interlocutory skirmish of one of the less exciting kinds that sometimes occur relating to certain classes of – well, certain documents. That is all. And if you don’t have any better practices to run, that would keep you here in the courtroom, I’m very sad for you. Alright. So we will just adjourn for 15 minutes, please.

ADJOURNED [12.27 pm]


5

10

15

Index of Witness Events

RUSSELL ROMAN GOLDFLAM, ON FORMER AFFIRMATION P-816EXAMINATION-IN-CHIEF BY MR GOODWIN P-816CROSS-EXAMINATION BY MR LAWRENCE P-828CROSS-EXAMINATION BY MS DWYER P-845CROSS-EXAMINATION BY MS GRAHAM P-854CROSS-EXAMINATION BY MR O’BRIEN P-860CROSS-EXAMINATION BY MS LEE P-864

THE WITNESS WITHDREW P-865

Index of Exhibits and MFIs

EXHIBIT #53 REDACTED ANNEXURES TO THE STATEMENT OF DYLAN VOLLER

P-866

EXHIBIT #63 STATEMENT OF MS ANTOINETTE MARY CARROLL WITH ANNEXURES

P-868

.ROYAL COMMISSION 14.12.16 P-870©Commonwealth of Australia

5

Documents

TranscriptCreator - Web viewI hadn’t – I hadn’t personally noticed it in court. ... by saying that there’s an added dilemma that we ... and within each incident there’s more