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
10.04 AM, TUESDAY, 6 DECEMBER 2016
Continued from 5.12.16
DAY 6
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 AssistingMR G. O’MAHONEY appears with 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 for ADMS A. ROSE appears for Antoinette Carroll
MR McAVOY: May it please the Commission, may Mr Hamburger be recalled to the stand.
COMMISSIONER WHITE: Yes, Mr McAvoy. Perhaps just before he does that, as I mentioned yesterday when I made the ruling, Commissioner Gooda and I deliver our reasons for refusing to uphold the objection in the application of the Northern Territory Government. So we will give you those reasons now.
MR O’MAHONEY: Commissioners, I haven’t had a chance to discuss this with my learned friend, but I would ask that the – we have prepared two statements of Ms Jeanette Kerr and one statement of Commissioner Mark Payne. They really do provide great detailed background matter to the sorts of evidence that is being traversed in the course of the questions of Mr Hamburger. We would ask that those statements, and their annexures, be tendered if that is convenient.
MR McAVOY: Commissioner, I had intended to take Mr Hamburger today to two of the statements from the – the two statements from Ms Kerr. I’m happy to tender the first statement of Ms Kerr, which is dated 2 December. The second statement has some small anomalies in it. I propose to take Mr Hamburger to the statement, but I don’t propose to tender it today, and I would hope that could be tendered when Ms Kerr gives evidence on Thursday. I hadn’t intended to take Mr Hamburger to Mr Payne’s evidence, but if the Northern Territory wishes to cross-examine on that statement I have no difficulty with tendering Mr Payne’s statement.
COMMISSIONER WHITE: Alright.
MR O’MAHONEY: Can I – I’m grateful for that indication from my friend, Commissioners. Can I press the tender of those statements, and just very briefly explain the basis for pressing the tender.
COMMISSIONER WHITE: Yes, certainly.
MR O’MAHONEY: There is – in Mr Hamburger’s statement, there is a number of paragraphs, and I won’t take the time to take the Commissioner to them specifically, but they really do have a flavour with – about them, or give an impression of Mr Hamburger’s very detailed report being handed down, and him not being kept in the loop about what occurred after the handing down of that report. And indeed there is, I think, the suggestion that not much has been done in relation to Mr Hamburger’s report. And really those statements of Commissioner Payne and Jeanette Kerr, particularly the detailed annexures attached to them, in my submission set a scene that is quite different to that.
That – you will see, Commissioners, from those annexures, there is an itemised list of all the recommendations set out in the Hamburger report and then next to that a list of actions that have been taken, that are being taken, or that are proposed to be taken in relation to specific recommendations. And in those circumstances, so as
amongst other things the other parties can be apprised of that detail and that background information, I would press the tender.
COMMISSIONER WHITE: I mean, it’s – I think not taken by us as a criticism of this administration that there hasn’t been feedback. I think that’s often the lot of people who make reports: they hand in their report, that’s the contract and that’s it.
MR O’MAHONEY: That’s right.
COMMISSIONER WHITE: Sometimes people are engaged as a further step to participate in the implementation stage, but that’s something quite different. So certainly I don’t think we took that as any adverse reflection at all. But there has been a flurry of activity, there’s no doubt about that. We’ve had the opportunity to read those reports.
MR O’MAHONEY: Can I just say this: it is not so much the lack of feedback. I agree with what you just said, that one would expect ordinarily, the contract having ended, for Mr Hamburger – other than, perhaps as a courtesy, to be kept in the loop. It is more the suggestion from paragraphs of the statement that not much has been done in relation to the recommendations and findings of that report, and a lot of work has been done by the government to really paint an accurate picture about what those recommendations were, and what steps have been taken responsive to them, and they are annexed to – those schedules are annexed to both Ms Kerr’s detailed statement and her more recent statement, as well as the statement of Commissioner Payne.
COMMISSIONER WHITE: Yes. Yes, they certainly are. And if there’s no objection then from Mr McAvoy, I don’t think we have any difficulty with that.
MR O’MAHONEY: Thank you, Commissioners.
COMMISSIONER WHITE: So, Mr McAvoy, what are the anomalies that you raised?
MR McAVOY: There’s just a reference to an annexure, an attachment to the statement of Ms Kerr, that wasn’t attached. And it didn’t feature as part of the annexures which were formally and properly annexed to the statement and I was just trying to give my friends an opportunity to correct that and make sure that it was properly tendered. But it can be – the attachments, which is the administrative order in relation to the transfer of - - -
COMMISSIONER WHITE: Authority.
MR McAVOY: Responsibility and authority from Correctional Services to NT Families, it can be tendered as a separate document.
COMMISSIONER WHITE: It could be. I don’t think it really goes to the substance of things at all, really, does it? It is obviously something that you find interesting, but not essential.
MR McAVOY: I was certainly going to take this witness to it in the course of the examination this morning, and so it’s just as easy for me to tender it and it to be fixed up later.
COMMISSIONER WHITE: Alright then.
MR O’MAHONEY: I’m grateful.
COMMISSIONER WHITE: Thank you. Do you want to tender those documents now, then? Is that convenient to do that? They will be – if they are prepared otherwise we can – it can be done at the break.
MR McAVOY: I think they are ready to tender now. They have both been uploaded to the system. That’s the statement of Ms Jeanette Kerr which bears on the front page the date 30 November, but on the back page you will see that it’s executed on 2 December 2016.
EXHIBIT #35 STATEMENT OF MARK LEONARD PAYNE WITH ATTACHED DOCUMENTS DATED 4/12/2016
MR McAVOY: That’s dated 4 December 2016.
COMMISSIONER WHITE: Thanks, Mr McAvoy. Are they your preliminary matters, Mr O’Mahoney?
MR O’MAHONEY: They are. Thank you, Commissioners.
MR LAWRENCE: Excuse me, but could I raise a matter in relation to this issue, please.
COMMISSIONER WHITE: Yes, certainly Mr Lawrence.
MR LAWRENCE: As you would be aware, I represent AD and his family, and up until very recently our understanding of the proceedings this week and next week was largely going to be involving AD and other children giving evidence and that has changed very recently, including the evidence now of Mr Hamburger and the resultant statements from Ms Kerr and Commissioner Payne. And I’ve got some of these statements, for instance Commissioner Payne’s I received this morning, and I’m very nervous about the fact that those witnesses are going to be called fairly recently, rather than what we anticipated, and I’m not in a really proper position to prepare and question those witnesses if I so seek to do.
I hope I’m not being out of turn, but I suspect I’m speaking for probably quite a lot of the other counsel who are representing other children and other entities here. So this is all happening very much hand-to-mouth very suddenly, in a very radical change of direction, and I just want to point that out to the Commissioners: that we are getting this stuff very, very late and I’m going to be embarrassed if I’m required to cross-examine some of – not Mr Hamburger, but these other witnesses that are now – whose evidence is now being put in. And I just want to indicate to the Commissioners now that’s the situation.
COMMISSIONER WHITE: Yes. Thank you, Mr Lawrence, for that indication. As you would understand the statement of Ms Kerr and Commissioner Payne have really just come into the hands of the Commission quite recently.
MR LAWRENCE: Indeed.
COMMISSIONER WHITE: In fact we’ve just got them ourselves and that’s responsive to Mr Hamburger’s statement, which perhaps is hardly surprising.
COMMISSIONER WHITE: And it makes much more sense to juxtaposition those witnesses alongside Mr Hamburger, of course. The concern I think that you have is perhaps that your witnesses may not be reached, as well as the cross-examination - - -
MR LAWRENCE: Well, that’s one aspect, but also being embarrassed by not being in a proper position to question these new witnesses that have been put in. And I don’t cavil with the juxtaposition, that is commonsense, but it’s just all happening very rapidly literally overnight.
COMMISSIONER WHITE: Yes. There’s not a - - -
MR McAVOY: If I might assist, Commissioner.
COMMISSIONER WHITE: Yes. Thank you, Mr McAvoy.
MR McAVOY: At the present time there is no intention to call Commissioner Payne in these sittings. There is an intention to call Ms Jeanette Kerr but it’s on a limited range of matters and it’s anticipated that she may need to be recalled. So that – and indeed your observation – Mr Lawrence’s observation has raised for me my own difficulty in that, having not intended to call Mr Payne and – Commissioner Payne, and the lateness of the receipt of his material, I haven’t yet conferenced with the witness in relation to that and I’m not sure that he has had the opportunity to review Commissioner Payne’s statement. And it may be that if the Northern Territory Government intends to take him to that statement in cross-examination then I would seek a short adjournment to take him to that material and understand what his evidence might be.
COMMISSIONER WHITE: Alright. Well, I think we have to manage it as best we can in the light of these things, but my understanding, Mr Lawrence, is that a lot of the material in Ms Kerr’s statement was at a relatively high strategic level with applications, of course, in the detail. There’s no doubt about that, but it doesn’t seem to me that it impacts, really, on your client.
MR LAWRENCE: Well, that may be the case. The reality is that I’m literally in a position where I haven’t had proper time to properly analyse it, consider it, advise my client and his family, and prepare any questioning of the same witness. It’s just the usual bleat, if you like, from counsel, as to lateness of getting the material.
COMMISSIONER WHITE: It’s part of being counsel, Mr Lawrence, I’m sorry to say. We have all suffered at that.
MR LAWRENCE: Certainly, but if there is one thing I’m very strong on is that this thing has to be done properly, and I have to be in a position to represent my client and his family properly.
COMMISSIONER WHITE: Yes. Well, you have an opportunity not to be disadvantaged. I put it no higher than that or no lower than that, Mr Lawrence.
MR LAWRENCE: Of course.
COMMISSIONER WHITE: Thank you.
MR O’MAHONEY: Commissioners, can I just briefly respond to what Mr Lawrence said a couple of times about the lateness of receiving the materials, and I just want to be clear about two things: firstly the statements of Ms Kerr and the statement of Commissioner Payne, Commissioner, you’re absolutely right when you describe them as being in the nature of high level strategy statements. They might be described as corporate statements or statements as to governance and other structural issues. The second issue, is lest it be thought that the government has sat on its hands or being late with getting material before the Commission, we received the Hamburger statement last Thursday night.
And in the period of two or three days we prepared – we met with the relevant witnesses, statements were prepared, and you will have seen the fruits of that labour. Commissioners, we are just very conscious of the fact that a lot of work was done very quickly to get the material that is before the Commission here now.
COMMISSIONER WHITE: We are conscious that you worked the whole weekend. We know that.
MR O’MAHONEY: Thank you, Commissioner.
COMMISSIONER WHITE: Because we were the recipients of some of it. So yes, I mean, it’s very rare in litigation or in Commissions that things move as smoothly and as elegantly as people would like. It’s just the nature of the beast.
MR O’MAHONEY: Certainly.
COMMISSIONER WHITE: But Commissioner Gooda and I will be very careful that Mr Lawrence and other parties’ representatives are not disadvantaged. And if we have to stand the matter down for a short time then we can do that as well. Right. So you can be sure that if there are real issues Mr Lawrence, that you need to ventilate, you will have an opportunity.
MR LAWRENCE: I’m grateful for that, and I’m really not being critical of the parties. It’s just that it’s very hand-to-mouth, with all the usual exigencies of this important Commission. That’s all. I’m not being critical, it’s a just an observation of reality.
MR LAWRENCE: Which is potentially compromising the forensic capabilities of my representing AD and his family.
COMMISSIONER WHITE: Thank you. If there aren’t any more preliminary matters – and if there are any sheep in the fold who want to bleat, they are welcome to do so. Alright. Thanks, Mr McAvoy.
<ROBERT KEITH HAMBURGER, ON FORMER AFFIRMATION [10.19 am]
<EXAMINATION-IN-CHIEF BY MR McAVOY
MR McAVOY: Thank you, Commissioner.
Mr Hamburger, you’ve been provided with a copy of the statement of Ms Jeanette Kerr, the acting Deputy CEO of Northern Territory Families?---I have.
Which bears on the front cover the date 30 November?---Yes.
And you can see it on the screen ahead in front of you there?---I can.
Have you had the chance to read that document?---I have.
In – I will ask you to note that Ms Kerr was appointed to that position on 26 September 2016. You can see that in paragraph 4?---Yes.
And in paragraph 5 you can see there that it sets out in point form Ms Kerr’s qualifications and in paragraph 6 – in paragraph 5 her experience and in paragraph 6 her qualifications?---Yes.
Do you see that?---Yes.
From perusing those two paragraphs, it’s – it would appear from those two paragraphs that Ms Kerr doesn’t have operation in youth detention experience?---From those – there’s no evidence of that in those paragraphs; no.
And there’s no operational custodial corrections experience?---No.
No. Can I ask you – can I ask the operator to turn to page 5 of Ms Kerr’s statement. You will see there, Mr Hamburger, the heading in large type and capitalised, SECTION 2B, CURRENT IMPROVEMENT ACTIVITY, YOUTH JUSTICE TRANSFER OF YOUTH - - - ?---Yes.
OF YOUTH JUSTICE PORTFOLIO TO TERRITORY FAMILIES. You’ve had a chance to have a look at that section of the report, of the statement?---I have.
Paragraph 28, if you have a look at it, it discusses a staged transition from Corrective Services to Territory Families; is that correct?---That’s correct.
And if I could just ask you to look at paragraphs 55 to 58 on page – the next page, please. You will see there that the heading is Governance & Oversight?---Yes.
And you’ve had a chance to read those paragraphs?---I have.
Now, bearing in mind the contents of paragraph 28 about the staged transition Corrective Services to Territories Families, and the comments about governance and oversight, and your evidence yesterday about your views about the need for a statutory authority, is there any comment you can make about what you can glean from that statement and those particular parts of that statement in relation to the structural arrangements?---Yes. I would just like to start, I guess, with the term “governance” and to give my understanding of governance. The governance of an organisation is about the vision and mission of the organisation, the policies and practices that operate within the organisation to ensure you can move towards your vision for the organisation; it’s about processes to ensure that you have the properly trained staff and procedures, and facilities to do the work; very importantly it deals with – governance covers risk management, so that you have your risks properly identified and mitigation plans in place; and, very importantly, good governance is driven by continuous improvement. So there’s a need for a continuous improvement strategy within the agency to take that agency forward. The – my reading of these paragraphs is that I don’t get that flavour coming out of that in the way that’s presented. The recommendation in our report relating to the statutory authority, in our view, set the scene for good governance in the fact that – as I’ve made the comment a number of times yesterday – the need for empowerment of Aboriginal people in this process and Aboriginal leadership of what – of where we go into the future. And a properly constituted board with a clear vision around doing something about the underlying drivers of social dysfunction and crime and leading to best practice being applied in terms of situations where people do come into the care and custody of the agency, and all of that driven by Aboriginal leadership in close consultation with communities is the basis for good governance, with this focus on continuous improvement. So I don’t quite get the flavour of that from – from those paragraphs.
If I can take you back to paragraph 29 of Ms Kerr’s statement. You will see that there’s discussion there about the implementation of recommendations flowing from the Vita Review into Northern Territory Youth Detention?---Yes.
Have you – did you, during the course of your review, have course to look at the Vita Review?---Yes, we did. That was one of the documents that we – we were given a raft of documents at the start of the review of previous reports. That was one of those, and we read that, yes.
And since reading Ms Kerr’s statement you’ve had a chance to have another look at the Vita Review?---I have.
Yes. Can you, just for the Commission’s benefit, give your understanding of the relationship between your report and the Vita Review?---Okay. The Vita Review gave us an indication of a range of operational concerns that he had identified. It was largely at the operational level, and it was done about – a little bit less, I think, than 18 months prior to us commencing our review. And so it was useful for us to see that and then we moved on from that point and did our own examination, as I said, about 18 months after the review to see what we could see. And so it was useful background around the operational level.
However, your report was a root and branch review?---It was more – yes. And his terms of reference, I think, were narrower than ours and ours was probably a more – was a more all encompassing review of the agency.
I would just ask you, in global terms, to look – to speak about the range of youth detention initiatives or the activity as it’s framed under the heading 2B, and are you able to make some comment about those generally? So will you see at paragraph 30 there’s the reference to the reforms in respect of the use of restraints, which passed in the Northern Territory’s Parliament last week, and over the page a discussion about the activities that have been undertaken in respect of risk management, if we can scroll down?---Yes.
And then the interim legislative amendments?---Yes.
Flowing through on the next page to the Make Safe Program and the intention, which is expressed at paragraph 43, to construct new facilities at Darwin and – in Darwin and Alice Springs?---Yes.
And then page – on the next page, critical incident response activities, and then further on the environment and youth detention and the various programs that are being undertaken under that heading. Are you able to make any comment about that activity generally?---Well, it’s good progress in a number of areas, the things that have to be dealt with and things that we’ve raised that needed attention. The – I think in that section there was an issue about the new – proposed two new detention centres, was it, at Alice Springs and - - -
Yes, that’s at paragraph 43?---Yes. So as I say, there’s a range of excellent things there. The issue I would like to probably draw attention to most is the issue of the proposed expenditure on the Alice – to create new detention facilities at Alice Springs and Darwin, and I guess if I could hark back to what I said yesterday in relation to our concern about the business case for the Darwin correctional precinct, and the fact that in our view there hadn’t been adequate demographic analysis of the underlining – underlying drivers for – that resulted in that outcome of that 1000 bed facility. I would just counsel, I guess, that in this – in relation to going down the path for new detention facilities, that we don’t repeat that mistake. In other words, whilst there’s no doubt that the current facilities are totally inadequate, I don’t think the solution at this point is necessarily,
on the evidence available, to jump to building two new facilities in those locations. And I come back to the overall argument in our – or position we’ve taken in our review report that this needs a holistic approach, it needs to be underpinned by the empowerment of Aboriginal and Torres Strait Islander peoples to be fully involved in this process, and we need to understand the circumstances in the various communities where many of the young offenders come from, and understand what the community needs are in terms of how this is treated. And it could be that the answer to that might not be a new centre at Alice Springs and a new centre at Darwin, it could be that it might result in a range of community based programs, it could result in facilities on traditional lands, it could result in some form of therapeutic community in either Darwin or Alice Springs, but totally different to what would be a traditional juvenile detention facility. But once we start investing, I think it’s in the order of 22 million into two new facilities, that locks us into that solution for many, many years. So I think it’s time to draw breath and take a very measured approach to understanding what the problem is, and looking creatively at the best solutions that reflect the intent of the legislation in the Northern Territory to have the least restrictive options applied and to ensure that young people are given the best opportunity to develop and become law-abiding citizens. And, of course, for some young people a period of institutionalisation will be necessary, but it has to be done in an appropriate way. So I don’t think there’s enough evidence or knowledge at this stage, and certainly the communities – the various communities that are affected by this have been fully consulted to actually arrive at a solution to build a new correctional centre at Darwin and Alice Springs.
On that note, I would ask you to look at two news reports, ABC News reports which have been loaded to the staging room. The first can be shown. Is – you can see it’s dated 22 October 2016?---Yes.
And if we can scroll down it’s about a youth work camp at – in Tennant Creek, and if we can scroll down, you will see just above the heading ‘Bid to keep detainees close to home’, there is a quote from a Mr Foster which says:
We’ve got the land, we could get staff, we need an expansion of that very well run prison farm. … That way they [young offenders] stay within the community and they can be visited by their family and friends.
You have had a chance to look - - -?---Yes – yes, I - - -
- - - at that particular media coverage?---Yes, I have.
If we could just have a look at the other news report, and the date of that report is 18 August 2016?---Yes.
Have you had a chance to read that report as well?---I have.
And there’s discussion in there about desire – the desire of the community in that case to have the children detained on country?---Yes.
I might tender those two reports, Commissioner. I understand that they are in relation to matters where the Commission has visited and there are reports that may in time form part of the tendered material, but for the sake of convenience and I don’t think there’s any objection from any of my colleagues to it being tendered in that form.
MR O’MAHONEY: No objection.
COMMISSIONER WHITE: Right. Thank you. So they are exhibit – do you want them as separate exhibits or just as one?
MR McAVOY: As a single, I think.
COMMISSIONER WHITE: Yes. Exhibit 36, then, for the two ABC News items that have been identified in the transcript.
EXHIBIT #36 TWO ABC NEWS ITEMS IDENTIFIED IN THE TRANSCRIPT
MR McAVOY: So having a look at those two articles, and your expressed concern about what you might have undertaken in terms of community engagement had you had more time, and the expressions of interest in the types of decentralised localised detention of young people, and the document you were taken to yesterday from emeritus Professor John Boulton about initiatives in the West Kimberley, and indeed your recommendations from your report, they are all very recent expressions of a particular – that fall within a particular range about moving away from large detention facilities in the bigger cities and towns. That type of approach is consistent with your recommendations?---Very much so, yes, and it’s very heartening to see those reports. It mirrors the experience I’ve had in Queensland in talking to many indigenous people across Queensland, and those sentiments that were in those articles reflect that: that the families and communities do want to have their young people close to them and they do put a lot of value in the capacity of time on country to develop and implement healing programs and other training activities to help young people into the future. The report that you referred to yesterday by Dr Boulton was also extremely heartening for me to read because one of the concerns that people have about moving to these small remote facilities is, “How do we get specialist support services into regions to help young people with special needs?” And it seems to me, from reading that brief synopsis in this project, that they’ve got a process to deal with that in a relatively remote area and that will be, I believe, an excellent lighthouse project to demonstrate how that can be done. And also I think all of those things show an appetite, to me anyway, from people at the community level that they want a different way. And that reinforces my view about the circuit breaker comment I made before about establishing the Commission, Aboriginal and Torres Strait Islander led Commission to actually drive these new initiatives, which I
think can be done far better than in the current – I just think it’s almost impossible in the current bureaucratic structures to achieve those sorts of outcomes.
Thank you. I might ask you a couple more questions about that later. At the moment I would like the witness to be shown the statement of Jeanette Kerr of 5 December. And in particular the schedule to that statement. Thank you. Mr Hamburger, you’ve had the opportunity to look at this schedule?---Yes, I have.
You understand that it has been prepared on the basis that it is a – sets out in schedule form the Northern Territory Government’s response to certain of your recommendations?---Yes, I do.
Particularly those that relate to youth?---I do, yes.
And I would just ask you to make comment with respect to some of those – I might withdraw that. Looking at the range of activity that the Northern Territory Government is undertaking, and it’s said to be undertaken in response to your recommendations, it’s clear that there has been a lot of activity in recent time?---That’s correct. Yes.
Okay. If you can just look at recommendation number 24, which is the first one on the schedule, it’s in relation to the creation of the office of Inspector of Correctional Services, and you see that the proposed strategy and comment is that the Territory Families supports the recommendations, but is opposed to a single inspector for custodial services. The Territory Families prefers the responsibility to be built in with the Office of the Children’s Commissioner. Is that – it’s not directly consistent with your recommendation; is there any comment you wish to make in relation to that - - -?---Yes, I would.
- - - strategy?---I would. I note that they are holding a final decision on that, I think, until the Royal Commission findings or recommendations are released. I would just like to make the comment that, when you are creating an Office of Inspector, that is another element of the overall governance system of the agency. And I think what we have got to understand is that the ultimate accountability and responsibility for the efficient and effective functioning of the agency rests, obviously, with the minister, the CEO, and the senior leadership team of the agency. And whatever checks and balances you put in around the system you should never try to erode or detract from the capacity of those people to actually run their agency and get on with the governance of it. Now, with that as background, around Australia with the implementation of Inspectors of Correctional Services, which is a very, very important function given the duty of care we discussed yesterday, there have been some problematic outcomes at times where the role of the inspector has not been adequately clarified. And indeed in the past, in some jurisdictions, inspectors have become overly involved in micromanagement of individual incidents and issues that are – where complaints are made to them about all sorts of things within the agency, and then conflict and all sorts of issues have arisen between the inspector and the agency. My view is that the role of the inspector needs to be twofold. One is, rather
than look at individual complaints – and if I’m understanding it correctly the Children’s Commissioner and a range of other people do get a lot of complaints, quite rightly from all sorts of people, and they investigate those. That’s not the role of an inspector of juvenile detention services. Their first and primary role, in my view, is to ensure they have a sound governance system. So they are looking systemically at the system of governance, and that’s a critically important factor. So if they – and for example if over the years we had had one in the Northern Territory that was looking systemically at whether or not the leadership were having – had strong governance, good risk management, continuous improvement in this place, I probably wouldn’t be sitting in this witness box today, I would think. So that is a critical factor to – and so at that level they are not nitpicking, they are talking to the senior leadership team about governance and keeping the leadership focused on governance. The next level is that you just can’t leave the inspector at that level. You have to do some probative checks from time to time to make sure that what you’re hearing and understanding about the governance system is actually working on the ground. So the inspector would do some targeted interventions where it might look – tell the agency, “Look, this year I’m going to look at your health services and I might look at your control of property,” or whatever, some programs, and do some limited probity checks to make sure that what they are hearing at the top level about what they are doing is actually happening on the ground. So it is that macro sort of intervention. So the skills of the people in the inspectorate have to be – obviously they need some content knowledge, but they need to be really focused on good governance and have those sort of skills and understanding of what governance in these duty of care agency means. So that’s just the overview. And so, looking at that particular approach – and they’re waiting for the outcome of the Commission, I would be suggesting that what I have just said is taken into account and what – whether or not it’s appropriately placed in the Children’s Commission, I don’t know, I’m not sure of the skills of that agency or what they look at. But I think in a critical duty of care agency for young people, that the role I’ve described is how I would see it being discharged, and I think it needs to be focused on that, and I have some reservations on that – subject to what the Children’s Commissioner does in more detail – as to whether that’s an appropriate place to put that inspectorate.
COMMISSIONER WHITE: And, Mr Hamburger, that kind of inspectorate is a bit like the office of audit; isn’t it?---Yes, exactly.
There’s a target and it lets people know in advance that that’s going to be the in depth review?---Quite. That’s correct, yes – yes, Commissioner.
And did I hear you suggest that that is happening in other places with corrections around Australia?---No. I can’t suggest that, because I’m not sure whether in Australia at the moment any inspectorate is actually functioning that way. I’ve had some discussions with a couple of inspectors around the country about what I have just said, and I think that they don’t quite work that way.
Is that concept, though – we know it operates at the Commonwealth level, of course. There have been inspectorates of a range of activities that the Commonwealth engage
in. Is it something that you’re aware of as attractive to states and territories?---I really don’t know. I haven’t raised it at high policy level, I guess. I just don’t know what the feeling would be. I would think, though, that if I’m talking about my former colleagues, the CEOs of agencies, I think they would be attracted to what I’ve just described, in the sense that it’s a clear delineation of responsibility. They have got responsibility to have a strong governance system and run their agency and it becomes a constructive help if you have got some expert on the outside who can come in and keep you up to speed and focus on that.
Thank you.
MR McAVOY: Is it – of course, your recommendations were made in response to the need that you perceived - - -?---Yes.
- - - at the time. And so you perceived a need for some external audit of the governance processes?---I do. It’s – this particular area of government is so risk prone, there is such a high focus on duty of care, that it – and it’s one of the most complex human service delivery agencies of government that I just think that it’s essential. And for the outside inspectorate, in the way that I’ve described, because it is critical that you can never let the governance of these agencies fall into disrepair. If you do it always results in human tragedy and it results in massive cost to the taxpayer ultimately in terms of Commissions of Inquiry and all the things that happen when things go wrong in that space, and it’s normally due to failure in governance.
Do you think it would be particularly helpful to have that external governance overview where you have a regionalised model of custodial operations?---Very much so, because that – the regionalised model, for all its benefits, does have risks. And – and we have had experiences in our – in my State of Queensland where remote facilities have suffered through poor governance, I guess, and it just adds another layer of concern, and it’s certainly important.
I would like to take you now to recommendation – which is listed as 134 at the bottom of page 1 of the schedule. You’ve had a look at recommendation 134?---On that document I have, yes.
And you’ve had a look in your review?---I can’t – I can’t find – recommendation 134 is not what’s shown there, as far as I can read in our report, and I did a word check to try and find the actual wording in there and I struggled to find that. So it could be me, but I just – I can’t actually get a handle on that one.
Do you have any comment to make, though, about the principle of Youth Community Corrections being transferred out of the Department of Correctional Services and into Territory Families?---Yes, I do. There seems to be an assumption in that, I guess, that the model that we’ve proposed in our review report was not happening. In other words, that our review report proposes the statutory authority with the Aboriginal and Torres Strait Islander leadership and this proposes,
apparently, that in fact youth justice will be transferred into the Department of Families. My personal view – and obviously it’s a decision for government – but my personal view is that our recommendation is what I support. The argument I would raise to support our recommendation, a bit further than probably what’s set out in the report, is that the Department of Families has a very, very important role to gain the trust of communities and to work with them in a constructive way to strengthen families and strengthen communities. If they also have the role and the authority figure, if you like, under the justice system to detain children and to deal with those authoritative things that have to be done, I believe they don’t come to the family strengthening and family community strengthening role with clean hands, in the sense there will be always a feeling by the community that, “These are the people that took my children away,” or that sort of feeling. Whereas if they are not responsible for the juvenile justice aspect they go there with clean hands and they can actually work in cohort with the Commission that we’ve recommended in various ways to bring a holistic response to the community and to the family, not fettered or not tainted, I guess, by the fact they are also the guardians or the people that took the children away. I was exposed to that concept in northern Europe, when I was talking to people over there about setting up these sorts of structures. And it was clear – that has always stayed with me, and I’ve talked to a lot of people over the years about this, and I just think that once – all of that background is why we made that recommendation to actually separate those two functions. And I think the Department of Families can play a more powerful role, and be a more credible role, if they are not also doing the justice implementation side of it.
Nevertheless, the model that you’re proposing in terms of the statutory authority - - -?---Yes.
- - - is very much one where it’s a standalone entity and able to deal with all divisions of government?---Yes.
And in fact it would be encouraged to deal with a range of divisions of government?---That’s right.
And would deal with Northern Territory Families?---Yes.
Quite closely?---Very closely. Yes.
If I can take you now to recommendation 149. There’s reference there to your recommendation that consideration be given to providing a suitable clinic at the centre to better meet the needs of the health staff and detainees. And then, in the status, it’s noted as being supported in principle and then, the proposed strategy and comment, you will see there’s an observation that there’s no infrastructure at the site to make that available, and then there’s a reference to the 15 million and 7 million respectively being allocated to Darwin and Alice Springs for youth justice facilities. I think, as you’ve just recently said, the decision to move to new facilities, which appears to have been taken – at least the money has been allocated – is that consistent with your recommendation as to how the system ought to be transitioned
from its present state?---No, it’s not. There’s two things I would like to say about that, those notes there: I think that the suitable clinic facilities is an urgent matter and it will be some time before – even if they built these two new facilities, which I’ve already just spoken about, I think we haven’t got the necessary evidence base yet to justify that. But I think that some urgent action needs to be taken to improve the situation in those clinics. I don’t think it’s acceptable at all that nurses are working under the current conditions there and the lack of privacy for their dealings with young people, and I note that there’s no infrastructure on site, but I would hope that some temporary arrangements could be brought in that would be better. And that should be done quickly, in my view, and once again I just reiterate that I think there needs to be a lot of work done yet before we make a decision to spend 22 million on those two centres.
COMMISSIONER WHITE: Mr Hamburger, it seems to me that 15 million and 7 million respectively as allocations, you don’t actually get too much building for those sorts of funds?---You don’t, no.
And it looks – reading that without the benefit, of course, of any explanation from the author of the document, suggests that it’s probably for things like the urgent matters?---Well, if that’s the case, that’s - - -
That’s how I would read – because of the small sums involved. I know, for most of us of course, that sounds - - -?---Okay.
- - - ridiculous, but that would be consistent with them making safe? Because you identified so many urgent needs?---Yes – yes, it would be. If in fact that money is used to upgrade the existing facilities in the interim, while they made bigger decisions, that’s a different matter. But I was assuming – I didn’t quite read it that way myself. But - - -
You must know a very expensive builder, then, Mr Hamburger. That’s all I can suggest?---Well, these aren’t big facilities, Commissioner.
No, I have seen?---And the – I don’t want to jump to solutions, but – even with the remote community model there will be a need in the bigger centres, like Alice Springs and Darwin, for some facilities. And even if those facilities were like centres where you had to bring young people from the remote facilities to the bigger centres for specialist treatment, for some sort of program that couldn’t be offered in the other areas, so it would be almost like a transitional centre where people come and go from, and they might not necessarily be very expensive centres to build. So – but we don’t know the answer to all that until we have a look at the picture of the whole of the Territory and decide where the children are coming from and where we should put these facilities if we went down that model that we’ve recommended. But you could be quite right, that could be that that’s for upgrading some of the current unsatisfactory circumstances.
Well, we will no doubt hear from Ms Kerr about what was intended there. Yes.
MR McAVOY: I would ask you to just for a moment, looking at recommendation 149 still, to note the resolution date of 30 June 2019, and invite your comment as to whether that’s consistent with - - -?---Well, I would hope that - - -
- - - some urgent works?--- - - - the clinic circumstances would be sorted out before then.
If I can take you back to recommendation 142, which is on the previous page, you will see that relates to alternatives to youth detention as a matter of urgency?---Yes.
And the response is that it’s “supported in principle”. Do you have any – were you able to form any view as to “what supported in principle” meant in the context of this document?---No. What I’m thinking of as I look at that, I’m – that recommendation 142, really, the outcomes of the world cafe that we spoke about yesterday, where senior staff put their mind to a whole range of possibility, came up with a range of potential outcomes to address that and as I understand the Department is currently – or was, the Department of Corrective Services was currently looking at a project to achieve that. So I don’t really know much more I can say to that. It’s - - -
If you can just look at the first line of the response, the proposed strategy and comment?---Sorry, I would like to make comment on that – that line, yes:
Number of years is not determined by Territory Families but by police operational activity and the judiciary.
I felt that was – well, not an accurate statement, I guess. The police and judiciary are reacting to the client group that’s coming from the socially dysfunctional and economically disadvantaged communities, and they are just doing their job, and it’s not correct in my view to say that the police and the judiciary are determining the flow into the system. And so it seems to miss the point that we’ve made in our report about the need to address these underlying problems in the lower socioeconomic and economically deprived communities that we are dealing with. So I didn’t think that was a very good starting point to talk about the response, and so when we are looking at the alternatives as we proposed in recommendation 142, once again I keep coming back to the fact that we need empowerment of Aboriginal people to start – to address this, and empowerment will come from the role of government changing the way it goes about its business to become an enabler and a capacity builder of those communities. So I just – I was a little surprised to see that sort of comment to open that thing, because it’s not in the – it’s not in the context or the drivers of the things that we put in our report.
And so are you saying that it’s within the domain of Territory Families to make some changes - - -?---Yes.
- - - to the number of youth going into detention?---Well, that’s right. I mean, if the – if under the model we propose in our report that the Department of Families was playing a strong role in family strengthening and community strengthening, and the
response in the justice system was such that it supported that by having appropriate programs and working in concert with the families, we would get some outcomes. And I don’t think it’s relevant whether the police or the judiciary are putting people into the centre. It’s – they have missed the point, I think, of the underlining drivers of this and how we address that. And that’s why we’ve proposed the Commission.
Recommendation 145, which is at the bottom of the current page?---Yes.
It goes to the medical assessment of youth detainees on reception. You will see its status is supported, and the first line of the proposed strategy and comment refers to assessments conducted on reception and not longer than 24 hours. Do you have any comment about that response?---Yes, I do. I think I stressed pretty strongly yesterday the need for that immediate medical assessment on reception, and I don’t know why they are talking about “not longer than 24 hours.” I assume it’s up to 24 hours that could take place. And the evidence I gave yesterday around the importance of immediately assessing people on reception stands, and I just worry about the fact of that – what they mean by not longer than 24 hours.
If I can then take you to recommendation 151, which is on the next page. That recommendation is quite lengthy. It goes over to page 5, and then there’s a little bit at page 6 of the schedule, and the status is superseded. And the proposed strategy and comment you will see there’s some commentary there about a reform program. Do you have some comment you would like to make about that response?---Yes, I do. I don’t know what that reform program is but I – I would speak to our report and say that any reform program that’s undertaken in this area, once again, has to have very strong involvement, and indeed be driven by the Aboriginal and Torres Strait Islander people of the Territory, and we have set out in our report a way to achieve that through the Commission and through perhaps a remote communities model and the change in the way things are done. So I think probably our report sets out a particular approach to a reform program. Reading this, I’m – it’s seeming to me it’s almost like a departmental approach where the department is coming up with a reform program. Now, that might be unfair in a sense it’s – there is not a lot of information there, and I don’t know what level they are working with Aboriginal communities and Aboriginal leadership to achieve that reform program, and I don’t know anything about it really. So – but I just don’t get the flavour that this is going to be, from what – the very brief line there, and I could be wrong, I apologise if I am, that it might not be culturally appropriate or culturally driven.
If the – I will put it to you this way: if the spirit of what is contained in recommendation 151 was being adhered to, would you expect to have – would you expect the Aboriginal and Torres Strait Islander community in the Northern Territory to be integrally involved in this major reform program from the outset?---Very much so – very much so. And that’s one of the reasons in our report that we recommended that major conference as almost the kick start to this, where Aboriginal leadership and community leadership from across the Territory would be brought together and the sorts of issues we’ve raised in our report put on the table, the research, we have eminent speakers about this, we discuss this and we use this as a kick start to involve
them and find out from them how they would like to be involved. I mean, we can’t – we just need to know where they would want to be involved, which communities we might want to start with in terms of programs and pilot projects, so it’s critical that’s where it starts. And I just wouldn’t like to think that this was being done departmentally and being done to Aboriginal people rather than Aboriginal people playing the leadership role in it.
And so if they – if your vision for a statutory authority model had been adopted, then that would put Aboriginal people at the - - -?---Forefront. Yes.
There’s no – I suggest to you there’s no doubting that the Northern Territory Government has been quite active. I’ve already asked you that question?---Yes. No doubt. That’s – they have obviously been doing a lot of work.
And in – as part of that range of activities, if we can just go back to the statement of 2 December, please, of Ms Kerr. Paragraphs 38, 39, and 40. Do you recall reading those paragraphs relating to the services being provided by Aboriginal community organisations?---Yes.
That demonstrates a level of communication with the Aboriginal community and involvement?---Certainly does.
Is that what you’re talking about in terms of having Aboriginal – the Aboriginal community in control or at the centre of - - -?---Just taken at face value again, and without all of the background detail, I think there might be a gap. Typically, the way government tends to operate in servicing Aboriginal communities is that the government let’s contracts to not for government organisations, including some Aboriginal organisations, to provide some services. But the contract is back with the government. Our model turns that, I guess, on its head a bit in that we would argue that, if you took a particular community that required services, you want to put that community in control of it. And that’s why under our model with the attachment to that statement where we had that special purpose vehicle of an enterprise within the community driving this, and so any agencies like this that are providing services are not contracted by government: they are contracted by the community and so they are actually responsible back into that community enterprise. That community enterprise is supported by people from government in terms of capacity building, and making sure that governance is good and so forth, but basically the community enterprise is accountable. This model, if I’m reading it correctly, is that we’ve got government still proposing to deliver services into that community, and the community not empowered to control that, and I think there is an important issue there that, you know, I really can’t stress enough, is that we have to empower Aboriginal communities and reward them accordingly through the enterprise that’s created, because that will create work in the communities, that will create profit for the communities that can be reinvested. It’s the justice reinvestment principle, so it’s important that that’s understood. I don’t get the feeling that that’s understood in the way that’s presented.
Thank you. I just want to take you back to a little bit of evidence you gave yesterday about how you reached the recommendation for the establishment of a statutory authority. Just so we’re clear, what role did your viewing of the Four Corners program have in your reaching that point where you decided – I think you said you were sitting on the plane and you decided, “Well, it has to be said”?---The Four Corners program was really the catalyst that I guess pushed my thoughts over the edge to that outcome. But as I said yesterday, it’s – if I go right back to my experience as Director-General of the Queensland Corrective Services Commission, where we had such a commission, not – our commission wasn’t as powerful indigenously – in an indigenous sense as this one that we are proposing here is, but it did have indigenous representation. And I still – and I had always been well aware of the benefits of that in terms of engaging with the indigenous communities. So – and as I said yesterday, a couple of occasions early in the review I sort of floated that idea. But when I – but up to very late in the review, I still hadn’t included that as a recommendation in the report, and I was still thinking about it. When I saw the Four Corners review it just became clear to me that it would have been unacceptable for our report to go forward without coming up with a clear circuit breaker, and a different approach, and an approach that empowered Aboriginal people. Because I can’t get past the point, which is quite horrendous really, that 85 per cent of the prison population in the Northern Territory and 95 per cent of the juvenile detention centres are Aboriginal and Torres Strait Islander people. And so we have a minority white population in our justice system, and yet basically Aboriginal people are pretty disempowered from – from that system. And I felt that when I saw that Four Corners program, I thought, “Well, we really have to bite the bullet,” and so we have put that forward. And the fact that we – I and other team members, we thought about this a fair way through the system, it was fortunate that – through the review – we were able then to just put our thoughts and evidence into the final report and there it is. But it certainly – the Four Corners program, to answer your question succinctly, was the catalyst for us to do that.
So to wrap it up, I suppose, do you – knowing what you know now about the actions that have been taken and the activity that’s taken by the Northern Territory Government, are you given any confidence that the circuit breaker that you thought was necessary is going to occur or that the paradigm shift to an Aboriginal empowerment type model is going to be embraced?---Well, I’m an optimistic person, and I’m hoping that it will be. But looking at the initial responses that have been prepared here – and I realise this is at officer level – it’s not at government level, so I don’t know what government is thinking, but the initial response doesn’t give me a lot of confidence that the officers at least are thinking down the path that we’ve outlined in our report. But I would – all I could do is urge that our report and the underlying evidence that we’ve put forward to drive those recommendations are understood by government and government give it serious consideration.
I want to ask you a question now about the position of children in the Northern Territory, and particularly Aboriginal and Torres Strait Islander children, going into the future. Are you aware of the 2015/2016 annual report of the Northern Territory Children’s Commissioner?---I haven’t personally seen that. No.
I would ask you to assume that that report identifies that there has been a 20 per cent increase – or approximately 20 per cent increase in the number of notifications under the Care and Protection of Children Act, that’s notifications under that Act in the Northern Territory over the – over that year, and that the numbers are now approximately 20,000 for the year. Given that increase, and those figures, and what you’ve seen over the course of your review, are you able to comment about – or make any observations about what the future might hold for children if there isn’t a change, in the way that you see it, in the near future?
MR O’MAHONEY: I object to that question - - -
COMMISSIONER WHITE: I thought you might.
MR O’MAHONEY: - - - Commissioner, for multiple reasons. One is that it really is trying to summarise in a punchy rolled up form a very detailed report. Firstly, that the witness by his own reckoning hasn’t reviewed. Secondly, the witness hasn’t indicated that any part of his remit involved the child protection space or indeed any review of the notification process. There is no touching on either of those issues in any paragraph of his statement. I can’t say that I’ve reviewed the complete report with that in mind, but my memory is that that report doesn’t touch upon either of those issues, and I think in the circumstances is it is asking the witness to speculate on a basis that isn’t necessarily sound and doesn’t necessarily assist the Commission.
COMMISSIONER WHITE: Thanks, Mr O’Mahoney.
MR McAVOY: I will - - -
COMMISSIONER WHITE: Mr McAvoy, look, I know I’ve got to give you an opportunity to be heard, but perhaps a sharper, more focused question because it is – I was expecting Mr Hamburger to say, “I’m not qualified to give any information about child protection.”
MR McAVOY: I will withdraw the question and perhaps ask a couple of others.
COMMISSIONER WHITE: Thank you.
MR McAVOY: Mr Hamburger, do you – are you in a position to observe whether there’s any correlation that might be drawn from the numbers of children that go – that are involved in the care and protection system and those that end up in youth detention?---Some years ago I wrote a paper and I’ve given some comment, public comment, on this in the past. There was a media exposé in Queensland some years ago about – I think it was headed Files of Shame, and it was – it talked about the large numbers that – something like you just described, of young people in Queensland that were at risk in the community and had come before notice of needing to be in care and protection. And there was some correlation drawn between the fact that many of those finished up in the criminal justice system at some stage down the track. And I made some comments at the time about – it was like a ticking
time bobbing bomb, I guess, for future adult imprisonment, because people that come into adult imprisonment don’t suddenly decide at age 18 that they are going to become a criminal. Mostly – the great majority of them are people that have had very disadvantaged and unfortunate circumstances, and I sat on the Parole Board in Queensland for more than 11 years reviewing files, and looking back at the case histories of these people, and many of them had awful experiences as young people. So when you have, whether it – I can’t speak for the Territory, but generally in a community if you have a large problem with at risk children and children coming before the notice of authorities and coming into care, it does lead, on my experience, looking at parole files, talking to prisoners and adult prisoners, it does lead to an explosion in adult offending down the track. And I quoted earlier, I think yesterday, about the prediction made in 2006 in Queensland that in the next 10 years we would have a 90 per cent increase in adult prisons; and we did. And as I said, if you look at that 90 per cent increase, the majority of those weren’t law abiding, well developed young people up to age 18. Most of them came from the circumstances of where they needed care and protection as children. So I don’t think any society can ignore the enormity of that sort of problem. And there is a – there was a saying in northern Europe that good criminal justice law comes from good social – like, good outcomes in the criminal justice system come from good social policies and social processes. So the sort of figures you’re talking about would mean, I would believe, that over time we will see more offending and we will see the need for more prison cells as we have seen around this country. And so the stark comparison, I guess, is northern Europe to Australia. If you look at our imprisonment rates we are, in many cases, double some of the best outcomes in northern Europe, where they have very well developed youth justice systems and social policies to try and divert children from the unfortunate circumstances of getting into the criminal justice system. So I – if those sort of figures that you are talking about are occurring, I think that it’s reasonably logical to say that, yes, down the track there is going to be horrendous cost to the Territory.
And in light of those figures, how important is it for the Territory to get its youth detention systems as right as they can be?---Well, I think it’s a hugely critical issue. I think this is a bit of a watershed. I will just recap on a couple of things: Northern Territory has somewhere near the world’s worst – the world’s worst imprisonment rate. That alone is obviously a huge indicator of social failure – social and economic failure for remote communities. And it needs to be addressed and it needs to be addressed urgently. I think it’s fair to say, and I’ve had this said to me by senior people recently in Queensland when I’ve been talking about the remote community model and the comment by our Director-General just a week and a half ago to me was, “Well, Keith, what we are doing now is not working. We’ve got to try something different.” And I think that applies not just in the Territory but in some other states as well, and I believe that this Royal Commission is a watershed opportunity to actually have a good objective look at the sort of problems you’ve inferred by those figures, and the things that I’ve been talking about. And it comes back to the mind – the decision I took to actually improve that, to include that statutory authority in the recommendations in that I just couldn’t see how more of the same of the soloed approach by Department, the lack of empowerment of Aboriginal
people, how more of that – it’s like when you are taking medicine that’s not working, and you just take more of the same medicine, it’s not going to help you. So there needs to be a change, and I think this Royal Commission is a chance for the government to take, to actually try a new approach. And I think – I believe strongly that the new approach has to be driven by Aboriginal and Torres Strait Islander people, given those percentages I spoke about before, but not in a way that they are set up to fail. In a way where they are supported in terms of capacity building, supported in terms of way to do business but not interfering, not doing the business by government, but the government being enablers as talked about in that Empowered Communities report, which I think sets out a good framework of how to go about this. So it’s just a critically important thing for the community and I would hate to see at the end of all this that we do some tinkering around the edges and we go on as business as usual with a few of the hotspots sort of dealt with, but no real change in giving empowerment to Aboriginal and Torres Strait Islander people and, for goodness sake, getting the young people in those communities to have the same opportunities as young people across Australia generally. At the moment they don’t, and I think that’s a shame.
Thank you.
COMMISSIONER GOODA: Mr Hamburger, are there other ways of empowering the Aboriginal community besides the statutory model you have suggested?---Yes. The statutory body is a way to empower Aboriginal people to have a say within the criminal justice system, but obviously not all Aboriginal people are in the criminal justice system, so I don’t want to sort of say that the criminal justice system is going to drive all of that change. So – but sadly, particularly in the Northern Territory, the criminal justice system has so many Aboriginal people in it that I believe we need that statutory authority to empower the Aboriginal people to put their views into that system and to make it change, understanding that we need empowerment out here in the community. Now, as I mentioned yesterday, the community empowerment model we envisage is not just for that special purpose vehicle or that enterprise to manage the community justice side, but also as I said, to go into other activities like managing Aboriginal housing, like providing input to the state education system, like working with the NGOs to make sure that when the person comes out of the justice system there’s a joined up service there that they can actually access that supports them and their families. So the enterprise grows into a bigger community strengthening model, and community justice becomes one part, and hopefully over the next 20 years the community justice one shrinks down because we have less people going into that system. Does that - - -
That’s fine. Thanks.
MR McAVOY: Thank you, Commissioner. That’s the conclusion of the questions for Mr Hamburger in chief, Commissioners. I propose that, given the time, we might – it might be suitable to take the morning tea break now. I can try – endeavour to deal with Mr O’Mahoney about the – how we approach the statement of
Commissioner Payne, and I will have discussions with my colleagues about cross-examination and hopefully we will come back with an agreed position.
COMMISSIONER WHITE: Right. How long do you need? Do you need perhaps half an hour?
MR McAVOY: That would be suitable. Thank you, Commissioner.
COMMISSIONER WHITE: So if we return at 12 and if you need some more time then you can perhaps let us know.
MR McAVOY: Thank you.
COMMISSIONER WHITE: Is that suitable, Mr O’Mahoney?
MR O’MAHONEY: It certainly is. Thank you, Commissioner.
COMMISSIONER WHITE: Alright. Thanks very much. Okay. Adjourn till 12, then.
ADJOURNED [11.27 am]
RESUMED [12.16 pm]
COMMISSIONER WHITE: Mr McAvoy.
MR McAVOY: Thank you, Commissioners.
COMMISSIONER WHITE: Mr Hamburger.
MR McAVOY: I have been able to reach some agreement with my colleagues at the bar table. I don’t need to traverse anything further with this witness in examination-in-chief, and there has been some agreement as to order, and I understand that Mr Boulten on behalf of NAAJA is to cross-examine Mr Hamburger first.
COMMISSIONER WHITE: Mr Boulten. Are you the opening batsman or the opening bowler, do you think, Mr Boulten?
MR BOULTEN: Mr Hamburger, as you heard, I represent the North Australian Aboriginal Justice Agency. And you will remember that NAAJA sent you submission that you had regard to during the course of your inquiry?---It did.
And I wish to ask you some questions about two broad topics. The first is about your proposal that there be work camps, or less secure places of detention, or alternative forms of detention. And the second is about community corrections or probation and parole services?---Yes.
Okay. So firstly, in relation to your proposal that the government consider something different than expensive, large, high security jails or detention centres, work camps is one example that you’ve given in your report. You also talked about a Canadian system that operates along a similar line. Would you like to just spell out just a bit more about your experience and knowledge of the Canadian system?---My personal experience is limited. Ms Downes, Lee Downes, who was a member of our team, she had actually inspected the healing lodges in Canada, so she has a much more detailed knowledge. My knowledge is limited more to what she has told me and literature. I think that the – our recommendations have taken account of the Canadian experience and, as I mentioned yesterday, most young people that come in to detention have got some form of trauma and before we can start to work realistically with them in relation to getting them into attentive attendance at education, and programs, and things of that nature, there needs to be a very important healing program where people – young people learn about culture and feel a sense of history, where they have come from. And so, as I understand it, the Canadian healing lodges are focused on those sorts of things. And in the centres that we are proposing we see that the cultural healing program linked to a cognitive change program is an important precursor for young people entering detention. The cognitive change programs, they teach people how their mind works and they get to understand that thoughts drive behaviour, and they get to understand that sometimes their thoughts which arise from their beliefs are inappropriate thoughts, and yet they believe those thoughts to be true. So the program takes them through an exercise where they understand that they can change their own beliefs from perhaps negative beliefs to more positive beliefs. And if that is linked into a culture or understanding, so they understand and get pride in the fact that they are Aboriginal or Torres Strait Islander and the – they know about the history of where their nation, their people have come from, and then start to translate that into a better approach to belief. So too often in correctional centres we get people and we start to put them straight into programs, like education, and quite often most of them have had a very bad experience with education and it’s a psychologically hurtful experience to suddenly be put in front of a classroom and expect to try to learn to read and write, and particularly in these circumstances where particularly for youth a lot of these people
only come into detention for a short period. And so we have to make a decision as to what’s the most impactful thing we could do in that short period that we’ve got them, and we believe strongly, and that’s what we’ve attempted to convey in our report, that the cultural healing program is a critical thing that has impact and should be delivered in that way. And that’s partly based on the Canadian experience.
Just thinking laterally, could those healing and rehabilitation centres or work camps or alternative forms of detention or residence be of use for young people and children who are in the child protection system?---I believe they should – they could be and should be. It’s – if you’re in a situation where you’ve been offending or at risk of offending, it’s not an easy journey back to an intact, law abiding lifestyle, and along the way there will be stumbles. And quite often – if you’re just relating to it back to people that might be under some form of community order where the courts impose certain restrictions. Now, quite often when – mostly, when people breach those restrictions they are put into custody, and the current system they go into a juvenile detention facility because of some breach they might have committed. It might not necessarily have been a criminal offence, it could have been some technical breach. These centres that we are talking about provide an opportunity for what I would call community custody. In other words, they wouldn’t go to a detention centre, they would – there would be understanding that this journey is going to have some pitfalls, and so we can move them into the centre that you just talked about, where they could undergo a refresher course or programs and settle them again, and then move them back. So it comes back to that – that actual secure custody would have to be the option of last resort, and this would help.
How would that be achieved in terms of governance where there was a crossover into child protection, if the facility was also being used for some aspect of criminal justice issues?---I would think that the actual facilities – it’s debatable which way you would go at this – whether you house the young children – the children that you mentioned in the same facility as the ones that are actually under another order, or whether you had some different set of accommodation on the site, and a lot of this traditional land has got plenty of area, as you know, so it’s possible. But, by the same token, it may be possible to put them together, but that’s an operational decision we would have to take in conjunction with the design of the facility.
How necessary would it be that those facilities be operated by – managed and directed by Aboriginal people?---I think it’s critical. I think that’s just an essential thing. It’s – for a couple of – a number of reasons. It’s showing respect to the local community that they can look after their own – own children and the problems and so forth; it’s giving skills to the local community to actually work in that very important area of the justice system; it’s showing that they are empowered by government to do that. I just think that you would lose the whole cultural appropriateness of the place if you brought in outside staff to run those facilities.
And if those staff were departmental officers, answerable to the head of the department and then the minister, how would that impact, you think, on the utility of these facilities as rehabilitative models?---Well, if I’m understanding your question
correctly, I would think it would have a negative impact. I think if we go back to the model that this facility is run by a special purpose vehicle or enterprise, owned and directed by Aboriginal people, the government’s interface should be with that business entity, not into the actual operations of the business. And as I said before, the government’s role is to enable Aboriginal people to have such an enterprise and help with the capacity building of that enterprise, but let them get on with running it. And I don’t – to bring the bureaucracy into actually running it, I think adds the dimension that would detract from what I’ve just said.
Your proposal, in some respects, mirrors your overarching proposal about the governance of youth justice systems in the Northern Territory?---Exactly.
So to take up Commissioner Gooda’s question of you before the break, if your model is not the preferred model for government in this Territory, that is the overarching statutory authority with two streams, there being a youth justice stream, a correctional – adult corrections stream, how can you actually build into that model the type of respect and the type of influence that Aboriginal people need to have on the governance of youth justice facilities as you’ve spoken about throughout your evidence?---Are you saying that, in the absence of a statutory authority, how you would do that?
Yes. I mean, you talked before about education opportunities and other opportunities in the community, and we understand that. But let’s just focus on youth detention and youth justice issues. How can you build in Aboriginal content, Aboriginal policies, Aboriginal people into the system with the department running it all?---Well, I haven’t seen in practice in Australia, under the current model, that happening. In other words, that we’ve had a lot of time over many, many years of administration of public sector in this country, and the outcome that you’re looking for has not been achieved under the current structures. And that’s why our review is proposing a new approach. If it wasn’t adopted, I would suspect that whatever other approach was – would be some sort of compromise that wouldn’t have the same impact.
Now, Community Corrections is a very important part of the administration of justice both for young people and adults in every community, and especially here in the Northern Territory; you would agree with that?---Yes.
The Territory has one such Community Corrections service that covers both adults and young people; correct?---That’s correct.
How would that service operate in the divided stream that you’ve proposed under the statutory authority?---The Territory’s approach at the moment is unique, with the same officers looking after adult and juvenile offenders. I suspect that that’s driven largely by the fact of the remote communities, and the small numbers of juveniles, and the capacity of having a whole separate stream of people travelling to the same place. When they say it more makes sense to have one officer go out and do that. We’ve given that thought in the models that we are developing in Queensland, and to
answer your question the enterprise that is established to run the community based base model would also have responsibility for Community Corrections. Now, the way we would – and bear in mind that the model of the facilities is linked to a joined up service model in the community.
Sorry, what does that mean, if you don’t mind me asking?---Thank you. When people leave a custodial facility and go back into the community to their family, most of those are disadvantaged families are impacted on by a number of government agencies, just not one. And, indeed, not only government agencies but non-government agencies who are assisting. And, sadly, those services in many cases are not linked up, and so we’ve got a siloed approach to delivery. Under the enterprise model in the community of them running not only the facility, but running the after care from the facility, there will be appointed officers to actually be the interface. So we have one point who links then the services that are provided to that family, and we would be working with the various agencies, community agencies, to make sure that they understand and have a joined up approach to this. So that’s what that’s about. So what we would envisage the role of community corrections officers under that model, they would be part of that role of government that I described as capacity building. So in other words they, if we are going to build the capacity of that enterprise to supervise young people in the community, locally, then the role of Community Corrections would be to train, develop and support and build the capacity of the local people who are working for community corrections in that regard. So they wouldn’t be actually doing the case work: the local people would be doing it with these people with the helping hand.
What do you say to the suggestion that there should be specialist youth probation and parole officers?---Well, the needs of youth are quite different in many cases to the needs of adults, and there is a – definitely a need for specialisation. Under this model the people that are trained up to deal with the youth would be trained specifically for that purpose.
There would be more capacity for that in an urban centre: Darwin, Alice Springs, Tennant Creek, In remote communities where there just won’t be the same volume of work for a probation officer, it would be necessary, would it not, for all of the remote workers to be specially trained in dealing with young people and children?---That’s right.
And would you accept that the need for indigenous probation and parole officers is crucial?---I do. It is crucial. And not only for the actual interface with the young person, but also in court advisory roles where hopefully they can assist the court in constructing not only a sentence that relates to their time that might be spent in a centre, but also in the full pathway beyond the centre, so that that advice is actually given at the time when the court are considering the case.
But this will also require a greater government commitment and financial commitment to remote probation and parole officers?---Definitely.
And would it not also be – I withdraw that. The model of supervision is important too, is it not?---It is.
To use your dichotomy in detention between guarding somebody and providing a therapeutic framework for their conduct, the idea of a probation officer policing parole conditions or bail conditions, and reporting back breaches as being a fundamental part of their job, seems to be much more akin to the guarding model that exists in prison and in detention centres now; right?---Right.
Is that the best model?---No. What our model proposes – there is two parts to your question I would like to answer. One is the cost part you mentioned, about the government needing to put more money into communities, and the next part is about the way they go about their work in the communities. With – dealing with the cost issue, my view is that what we need here is a business case, because on the one hand we would know at the moment how much it costs to keep a young person in custody in Alice Springs or Darwin, and it’s quite a lot of money. That cost is driven by two factors: it’s driven by the inflow of new clients into the system, but very importantly it’s driven by the recidivism which is actually a failure of the system. So we have the recidivists coming back, on top of the new group, and it relates to the discussion before lunch about the growth then in – in numbers. So if in fact, under this new model, we can achieve a reduction in recidivism, well then we start to achieve some real cost reductions. Now that is where we need a business case upfront that says, “Well, over the next 15 years we set some actual milestones.” Recognising that we have to invest upfront, because this is like a new business. So we have to say, “Look, we predict that we can reduce the recidivism rate by the next 10 years, and that will impact on the cost – of our current cost to this level.” So we can actually put – invest a known amount to achieve that dividend. So it’s – so it’s not as though the Territory would put in extra money into a black hole, it’s put in on the basis of a business case where we have outcomes we have got to measure. So then we get to the next part of your question, which is the how they do their business. I’ve had a number of discussions with agencies in Queensland about this, and what we’ve agreed is that in taking this proposal to the next step there will be a very detailed co-design process with the community, with the agencies, and with our company as working with the community. So that we come to grips with that problem you’ve raised about the different – first of all the different roles of the breaching side of it, and there are various ways we can do that differently. In other words, we could have a person attached to the court who did urine tests or other things that – well, made sure they reported on time and things. I’m not sure of the impact answer to that, but I know that if we sit down with the community and sit down with the agencies there is a will to work that out.
What about graduated responses to breaches? Rather than black or white, in or out, different consequences that escalate in accordance with the seriousness of the breach or the repetitive nature of the breach?---Yes. 100 per cent support that.
So just my last topic, question maybe. How important is it for this Royal Commission to understand what the Northern Territory Government’s business model
is, or was, or is going to be, for building facilities, investing money in Community Corrections, investing money in detention centres and the like?---Well, I guess it’s fundamental in the sense that we talked earlier about the lack of the strategic plan in the corrective system as it currently exists, or when we actually commenced our review. And I have a sense that there was no strategic thought about the sort of things we’ve just been discussing. And it seemed, as we talked about with the Darwin Correctional Precinct that we just did more of the same, by building a bigger prison and going down that path. So the importance of what you’ve just raised is that the agencies of government that work in these areas – that’s Corrections, Youth Justice, Department of Families, particularly those human service delivery agencies, need to create strategic advice to government that says that, “What we are doing now is not working, we are looking for a better way,” and actually start putting up propositions. We can’t expect government to sort of dream up answers to that. That’s why they have public servants and other people in the community to come up with, with thought. So the emphasis on creating a strategic plan to paint possibilities for the future that we should be aiming for, to a desired future. But, as I’ve said a number of times, the Commission structure by bringing Aboriginal and Torres Strait Islander people into the driving seat, so to speak, so that they can be part of planning that future. Because it’s their communities, it’s their children, their families we are talking about. Then – and for the government to understand that – the dividends that will flow from that in the future, once we have empowered people actually with pride in the communities and working in the way that I’ve talked about previously, we will get somewhere. But we won’t get anywhere if we just stay with the current model, in my view.
I think others have more questions. I will leave it at that. Thank you, Commissioners.
COMMISSIONER WHITE: Thanks, Mr Boulten.
MS ROSE: I’m next in order, Commissioners. I will announce my appearance. My name is Rose and I appear on behalf of Antoinette Carroll.
COMMISSIONER WHITE: Thank you, Ms Rose.
MS ROSE: Mr Hamburger, you heard I represent a woman called Antoinette Carroll.
MR McAVOY: I just might interrupt, I’m sorry. It’s proposed to call Ms Carroll as a witness, Commissioners. Her statement hasn’t yet been uploaded, but it’s in the final stages, and she’s expected to be called next week. And, on that basis, I would consent to Ms Rose being given leave to cross-examine.
COMMISSIONER WHITE: Thank you. I assumed that had been arranged.
MS ROSE: As I said, I represent a woman called Antoinette Carroll, who’s the coordinator of the Youth Justice Advocacy Program in Alice Springs; do you recall her?---I’m sorry, I can’t bring it back at the moment.
MS ROSE: I will prompt you in one way. You had a phone link up with her as part of your review?---Okay. Yes.
Her organisation sits within the Central Australian Aboriginal Legal Aid Service?---Thank you. Yes.
May I ask that page 150, please be brought up of Mr Hamburger’s report. Do you see the reference, that’s in the fourth paragraph down, it starts with “The acting manager”?---Yes.
And you refer throughout the next few paragraphs to a person as “the acting manager”?---Yes.
Do you recall who that is by name?---I can’t bring his name back. No, sorry.
If I said Derek Tasker to you, would that ring a bell?---Honestly I don’t know, really. I remember talking to him at the time, I can picture him, I can’t say that’s for sure his name. But if you tell me that’s who it is, that’s - - -
Take - - -
MR O’MAHONEY: Can I object, Commissioner. I hesitate to cut across my friend, but if what is proposed is a line of questioning along this line of a general expression of no recollection, or no clear recollection, followed by the naming of an individual in the circumstances where we are not on notice of what is supposed – what is about to be put as to individuals, and the repercussions for them more broadly from questions that were asked today, I really do object to – if the witness does indicate that he doesn’t have a recollection, I don’t think it is fair or probative or it would assist you, Commissioners, much to then have names hypothetically thrown at the witness to see if they can receive a response.
COMMISSIONER WHITE: Thank you. Noted.
MS ROSE: Commissioners, I could – I was planning to take it a little bit further to see if his recollection could be confirmed. May I - - -
COMMISSIONER WHITE: Yes.
MS ROSE: .....
COMMISSIONER WHITE: Perhaps a physical description of the person, is that the idea? Or is the content of the - - -
MS ROSE: There was a contextual space I was going to.
COMMISSIONER WHITE: Take it a bit further and see how you go. But your objection is noted.
MR O’MAHONEY: Thank you, Commissioner.
MS ROSE: It seems to be, Mr Hamburger, that you spoke to this acting manager, who I’m suggesting is a person called Derek Tasker, over the course of your inspection of the Alice Springs youth detention centre in late July 2016; is that right?---That’s right, yes.
And that inspection was prompted – your earlier evidence yesterday was because you – the Four Corners program has been shown, and you were called to Darwin and asked to inspect both Don Dale and the Alice Springs Youth Detention Centre immediately?---That’s correct.
So in your mind, when you visited the detention centre in Alice Springs, was the Four Corners program; is that correct?---Yes.
Do you recall an image from that program where a young person called Dylan Voller was in his cell with CCTV footage, and through people entered his cell. He was on a mattress playing cards. A – one of the gentlemen who entered stripped Dylan Voller naked, pushed him to the ground and handcuffed him. Do you recall that image?---I do.
MR O’MAHONEY: I object to the question, Commissioner, on two grounds. Firstly, it is not clear at all to me – and I must say we are in the dark as to the particular interest that my friend represents. We haven’t seen a statement from her. But I have to say, based on the explanation given as to her client’s background, it’s not clear that these are questions that traverse her client’s interest. And I don’t think they are appropriately put by my friend.
COMMISSIONER WHITE: We need to have some clarification. It’s not – it’s not clear to us, up here, I think, yet, where this identification issue is going, Ms Rose.
MS ROSE: : It is – perhaps I can take it - - -
COMMISSIONER WHITE: Vis-á-vis your client.
MS ROSE: Without having to confirm it at this point, I can take it in a different track which I hope will show where this is going.
COMMISSIONER WHITE: As it affects Ms Carroll?
MS ROSE: Yes. It’s in relation specifically to recommendation 78 of Mr Hamburger’s report.
COMMISSIONER WHITE: Give us a moment to have a look at that. Perhaps that could come up. Thank you.
MS ROSE: I think it’s on page 151.
COMMISSIONER WHITE: I’m still struggling a bit why the identification of the assistant manager, as mentioned in Mr Hamburger’s report, plays upon that recommendation.
MS ROSE: Commissioner, as I read it in the paragraphs that precede – if we could take it to page 150 I might be able to specifically pinpoint - - -
COMMISSIONER WHITE: Thank you.
MS ROSE: - - - the issues.
COMMISSIONER WHITE: Thank you.
MS ROSE: The second paragraph starts with:
We were favourably impressed with the energy and enthusiasm of the acting manager.
And then it goes on to say the various things that he had fixed since the earlier visit of Mr Hamburger’s team, And then it moves down to paragraph 4, “the acting manager explained” – sorry, if it could be scrolled up slightly. It – the acting manager explains to Mr Hamburger and his other colleague about the practices and procedures at the Alice Springs Detention Centre, and then flowing soon after that is the recommendation that the Alice Springs practice be rolled out as a best practice model within the Territory.
COMMISSIONER WHITE: But it’s – perhaps doesn’t quite say that, but it suggests it’s not bad. Yes.
MR O’MAHONEY: Commissioner, can I just reagitate my earlier objection, and build on to it if I could, by saying this: if – as I understand it my friend represents the head of a public interest or an indigenous or Aboriginal interest advocacy group. If it is to be put to the witness for example that a submission was made by that group, by my friend’s client, that he did not accept or that he put in place or didn’t put in place, it would be one thing to question along those lines. Equally, Commissioners, if the particular finding and recommendation that my friend has just alluded to wants to be put to the witness, and questions asked around that, we would have no difficulty with that. But I think what my friend is trying to do is really strain to build contextual matters that we don’t see as either cutting across her client’s interest or as being necessary to asking questions of this witness about his findings and recommendations, and I really do press the objection.
MR McAVOY: If I might be heard for a moment, Commissioner. My understanding of the context is that, to the extent that Ms Carroll is proposed to give evidence next week, she will express some opinions about the way in which that centre – that Alice Springs centre is managed, and that to the extent that those opinions might differ from the opinions expressed by this witness, I understood that was to be put to this witness by Ms – by my learned friend, Ms Rose. And in that context it seems to me that the questions are appropriate, but there’s a limited range there.
COMMISSIONER WHITE: Thanks, Mr McAvoy. Ms Rose, the impression that I’m getting from the explanations that are sort of half coming through is that the suggestion might be that this was window dressing for the visit by Mr Hamburger and his colleague, and that the person involved in doing this window dressing, if I will use that expression, was a person who actually doesn’t in practice carry out these kinds of activities. Is that where you’re going?
MS ROSE: It is, Commissioner. Very astute, yes.
COMMISSIONER WHITE: In other words you want to ask Mr Hamburger was it possible that he had the wool pulled over his eyes about what wonderful things were happening at the Alice Springs Centre, because Ms Carroll will give contrary evidence.
MS ROSE: Yes.
COMMISSIONER WHITE: Have I encapsulated that?
MS ROSE: That is the main point. There were other smaller questions about the methodology of the visit.
COMMISSIONER WHITE: It’s a bit tricky, isn’t it, to ask that question of Mr Hamburger? I think you could put it in a – you could ask him, I suppose, did he test the assertions by this assistant manager, for example, or did he accept what he was told; that sort of thing perhaps might - - -
MS ROSE: That was what I intended.
COMMISSIONER WHITE: Yes. And because it is going to be reflected in Ms Carroll’s evidence, I certainly see that it is relevant, Mr O’Mahoney.
MR O’MAHONEY: I do. Within that limited range, Commissioner, there is no objection. It was more the line of questioning I think that my friend was pursuing only moments ago.
COMMISSIONER WHITE: Alright. Well, I think you are probably being so cautious that it wasn’t coming through to us.
COMMISSIONER WHITE: Yes. I suppose you could say – why don’t you just put those things to Mr Hamburger without too much identifying who the assistant manager is, because I don’t think that’s actually the point here.
MS ROSE: No.
COMMISSIONER WHITE: Alright. Thank you.
MS ROSE: Mr Hamburger, when you visited the Alice Springs Youth Detention Centre on that second time, how long did you spend in the centre?---Somewhere up to a couple of hours.
And who did you speak to during your visit?---I spoke to the acting manager, I spoke to the nurse that was on duty, I spoke to two of the officers who took us out, and we inspected a 40 foot shipping container that had been converted into a kitchen, and they talked to us about programs. Pretty well - - -
Did you - - -?---Sorry?
Sorry to cut you off. Was there anything?---That’s – that’s it.
Did you speak to any of the detainees on that visit?---No.
Did you speak to any former employees of the Alice Springs Youth Detention Centre?---Don’t recall talking to any former employees.
Did you speak to any of the legal representatives of the detainees?---No.
Did you speak to any non-government organisations that frequently visit or provide services to the detainees at the detention centre?---No.
So can I conclude from those – that evidence that the only person you spoke to on that day – only people, sorry, that you spoke to on that day worked for the detention centre itself?---That’s – that’s a fair comment. I yes – I can’t – honestly can’t recall talking to people outside of that, because our task was to go and satisfy ourselves, I guess, that there were actions in hand within the centre to ease the concerns that the Chief Minister expressed about potential risk to the young people in the centre. So we were mainly focusing on what the staff and management were doing about that.
And just to pick up on two points that you had in your report, you talked about – you said the acting manager explained to you the method of dealing with detainees at risk by placing them in the de-escalation cell, or otherwise known as having a separation. Did you test that information that he told you as to whether that was true, that an officer would stand outside the cell and monitor the young person during a separation?---We went with him to that cell. There was another officer, as I recall,
standing there with us while he was explaining what they did, and the artwork was on the cell, he talked about the music, he talked about the officer being present. I think the other officer engaged in some discussion around that. But that’s the limit of our testing. We - - -
And with regards to the music, he told you that music could be playing. It wasn’t that it was playing at the time that you were there ..... - - -?---No, there was no – there was nobody in the cell at that time.
Would you concede that it may be that you – the information that this acting manager gave you may not have been a true reflection of life within the youth detention Centre?---That’s always possible. We were there for a short period of time. We spoke to the person. We – that’s what we did, so that’s possible.
Can I please bring up page 151, the recommendation 78. Mr Hamburger, do you have that in front of you?---I’ve got a page. I can’t see a number on it. But - - -
It’s recommendation 78, under Findings?---Yes – yes.
Would you concede, Mr Hamburger, that reflecting on the evidence you’ve given today that the evidence or the information provided to you by the acting manager and the few other staff that you spoke to on that short visit hadn’t been tested by you. Do you stand by that recommendation number 78?---Can I just - - -
That it’s - - -?---Sorry.
That it’s a good practice guide for all staff working in youth detention?---I just read – can I see – so I can read above that for a moment, please. Can you just go to the page before that for a moment. Yes, okay. Recommendation 78 is mainly aimed at the way that the – in contrast to what happened with Don Dale, with people in isolation or separation, that the practice where they weren’t kept there for up to – as we were told – they weren’t kept there up for 24 hours, they were there for a very limited period until they had settled down and moved out. The way they tried to make the cell a bit more humane and those sort of practices we were mainly talking about in that context, in recommendation 78.
So in the sense do you concede now that 78 needs a bit more elaboration for it to reflect accurately what you believe is the good practice guide?---That’s fair.
MS GRAHAM: Mr Hamburger, perhaps if you could have a look at paragraph 43 of Jeanette Kerr’s first statement, which is exhibit 33. It’s on page 7?---Yes.
It appears from that part of Ms Kerr’s statement, and in combination with some of the schedule items that you were taken to earlier in your evidence about the proposed response by the Northern Territory Government to a number of your recommendations, that what the Northern Territory Government has in mind is the construction of new facilities as opposed to making adjustments to the current facilities. I have some questions for you about that, and particularly about what might be the best approach in the planning stages of such an endeavour. And particularly, I would ask you to think about this issue of – when designing a home, for example, an architect normally works with the family to find out what their needs are, what they would like, so that the ultimate result meets their needs and their desires. With that in mind, would you suggest that a best approach when designing a new youth detention facility or a new youth justice facility that there should be consultation with the ultimate users of that facility, being the young people and the children to be kept there?---I do.
The current Alice Springs Youth Detention Centre is situated geographically next to the adult facility?---That’s correct.
Could you provide some comment about the appropriateness of physically locating a youth detention facility next door or alongside an adult correctional facility?---Sorry, the first part of the question was?
Could you provide some comment, your opinion, about the appropriateness of collocating a youth facility and an adult facility?---Yes. I think it’s inappropriate. It’s something that has always troubled me for years, and I have spent a lot of time in visits area in adult correctional centres, and women bringing young children up to the centre into that adult visiting area to meet dad, and the whole situation of young people from a very early age basically becoming accepting of the fact that prison is part of their family life. And I’ve always – that’s always troubled me. I understand the need to keep families in contact, but I just – thinking of myself as a child, if I had been taken up to those sorts of institutions, it would have had an impact. Likewise, with young people that are then separated from their families and are put into a “jail”, beside an adult jail, I think once again that’s not good practice. Because I think there was a statistic I saw some years ago, about 90 per cent of young people go into institutions go on to adult facilities, and I think we have got to try and deinstitutionalise the whole approach. But to have a – so it’s a bit of an expansion, I guess, on what you ask, but the fact is I don’t agree with juvenile facilities being located on adult prison precincts.
One of the concerns that seems to have been raised in the course of the discussions and work that the government has been doing in this space is a concern by officer
associations and unions who perceive the Correctional Services system in the Northern Territory to be soft on crime. In your experience of your observations and review that you did of the Northern Territory Corrective Services system, do you agree with that description that it’s soft on crime?---That what is soft on crime, sorry?
That the Correctional Services system in the Northern Territory is soft on crime?---No. I mean, I don’t think that’s the case at all. It depends what you’re talking about, what you define as “soft”. But the short answer is no.
Would you agree that the therapeutic approach that you advocate for, particularly in youth justice systems, is vulnerable to those – talk of pejorative labels like “soft on crime”?---It certainly is. The – the perception in the community, I guess, generally speaking, is that prisons should be places of punishment or places where people are not treated with kid gloves, and all of that sort of thing that you hear, and I’ve spoken at many community functions and organisations about the work that I’ve done in the past when I was in Corrections, and I’ve had people of my age group, if you like, stand up and say to me, “Look, when I was a young fellow if I played up the copper used to give me a kick up the backside, and I would be sent home, and dad would give me a belt around the ear, and that sorted me out.” Or alternatively, “I went into national service in the army, and that’s what these people need these days is a bit of good old discipline, and that will fix things, and we don’t want these motel rooms with TVs and all that stuff in jails.” My response to that comment is, “Yes, I can understand people of my age group who have worked hard and been through the services and whatever could have that sort of attitude, and they get very annoyed and angry about the fact that young people seemingly are running berserk and doing those sorts of terrible things, and the courts are soft on them and everything else.” But I ask them to reflect on the fact that most of us that hold those sort of views basically had the good fortune to come from a loving and supportive family and were helped through our trials and tribulations in school, and generally got on with our lives, and when we did have discipline imposed upon us within that supported environment we understood it in the context of our loving family situation. And that applies, fortunately to the significant majority of people in our community, but the people that come into our detention centres and our prisons don’t come, in the main, from that loving supportive background. They have been sexually abused, they gone to school without lunch, they have had quite serious things happen in their lives. So if you put them in jail and think another good kick up the backside or something like that is going to change their ways, you have got to think again because they have had far worse at home, on the street, and so that sort of punishment that people like to think should be dished out to those sort of people, is not being – it has no effect in that sense. So we’ve got to understand that the cohort of people that we are dealing with are different to the mainstream of society in that sense. So those glib responses about what I described earlier are off the mark. So I go into that sort of discussion with people in those meetings, and generally there seems to be –people start to understand that. And then I say that what we need to do is we don’t – in a civilised society we don’t incarcerate people for punishment and treat them brutally. Sadly, it does happen though. But that’s not the mission. The mission is, as we’ve talked
about, is to stabilise those people, understand them as individuals, and get some individual personal pathway plans in place to support those people back to a law abiding society in some way. Some of the research we quoted in our report talked about the problem in juvenile facilities of bringing a cohort together of antisocial young people, and that develops a culture of its own and starts to – it just reinforces the whole negativity. They have had so many bad things happen in their life, now they are locked up in this instruction with a range of “bad people”, there is inappropriate programs, they are just not being dealt with properly, and then we wonder why we have got a 70 and 80 per cent recidivism rate. It’s because our systems are failing. So if we talk about soft on crime, I guess what the current system does actually creates crime, because it – recidivists go out, we get all this recidivism, we don’t support people properly. So the things I’m talking about are not being soft on crime: they are an appropriate response to the problem and the challenge that we are facing. Many of the families that these children come from are desperate. They are people that have had difficult experiences themselves as children, they have had exposure to all sorts of awful things. They don’t have much money. They want – when you sit down and talk with them, as I have in many times in visit situations and in communities, they want good things for their kids but they have no idea how to do it, how to achieve it. And so if we don’t address that, we are just going to create more crime. So this argument about soft on crime, or yet harsh and do things, it’s rubbish. We have got to push that aside, and look at it objectively, and consider the things that I’ve just been saying. So I have grappled with years – for years with prison officers’ unions about these sorts of things. I can recall – I won’t go into war stories, but the – it requires education and it requires a leader of the organisation to articulate a vision about a better way, and then bring people along on that journey, and I believe that correctional officers in the Northern Territory can be brought on that journey, and understand that there is a better way: that our job is about rehabilitation. We used to be called – in Queensland we were called the Prisons Department, and that was a fact around Australia: we were the Prisons Department. We changed the name to Corrections, we became the Department of Corrections, but we didn’t – we changed the name and the badge, but we didn’t change the ethos and the culture. So now we’ve got to do that, and once again I come back to the issue if we bring Aboriginal people in – community people, as part of the governance system, as part of the drivers of this, we will – it will be another impetus to change that culture.
I would just like to take you back to your finding 78 again, briefly. And perhaps if finding 75 could be on a split screen at the same time, please. Is it fair to say, Mr Hamburger, that your finding 78 really needs to be read in the context of your finding 75?---Yes.
So that overall your view is that the Alice Springs Youth Detention Centre was unsuitable, but there were some things that you saw as positives, being the use of a de-escalation practice?---That’s correct. We were very concerned about the de-escalation practice at Don Dale. We thought what we saw here was a different one that was more appropriate.
Can I follow up with you as well that in your finding 78 that perhaps the word that’s most important there is the word “developed”. Or, “further developed”?---Yes, correct.
So that you’re not putting up the Alice Springs model as some - - -?---Best practice, no.
- - - best practice, but something that should be further explored and improved upon?---Exactly.
I want to now ask you some questions about - - -
COMMISSIONER WHITE: Ms Graham, I don’t wish to - - -
MS GRAHAM: I see the time, I’m sorry, Commissioners.
COMMISSIONER WHITE: I was hoping that perhaps we would complete your questioning of Mr Hamburger before we broke for lunch, but I have also been advised that the webcast has dropped out as well. So all your brilliant questions are not being relayed to the rest of the world and not to mention Mr Hamburger’s answers, although we all have them. So perhaps it might be a convenient place to break.
MS GRAHAM: Yes. Thank you, Commissioner.
COMMISSIONER WHITE: 2 o’clock, thanks.
ADJOURNED [1.10 pm]
RESUMED [2.05 pm]
COMMISSIONER WHITE: Ms Graham.
MS GRAHAM: Mr Hamburger, when we talk about the youth detention environment, would you agree that there’s a significant power imbalance between the officers that are running the detention facility and the children that are detained?---Yes. I would agree.
And as a result of that significant power imbalance would you agree that the officers need to be held to a higher standard of care and behaviour?---Yes
COMMISSIONER WHITE: Higher standard than in an adult situation, I presume you mean by that question, Ms Graham.
MS GRAHAM: Thank you for clarifying that, Commissioner.
Yes, do you agree with that?---Yes, I do.
And, indeed a higher standard in their duties than in other settings, whether custodial or not?---That’s true.
I want you to consider a situation where an officer has had numerous complaints made against them about inappropriate use of force or assaults or improper behaviour towards children in detention and, keeping that in mind, I want to ask you about the appropriateness of such an officer continuing to have direct interaction with children in what you have described as a therapeutic environment?---Well - - -
MR O’MAHONEY: I object to the question, Commissioner, for this reason: the witness has given a report and his evidence really goes to systemic matters and institutional matters. Asking questions of this witness based on his hypothetical individual case studies seems to be departing from the substance of his evidence, both in statement and report form.
COMMISSIONER WHITE: Well, it does. I’m not going to answer for Ms Graham, and she will no doubt do it for herself, but Mr Hamburger is here as a witness and he has expertise in a whole range of areas related to corrections and prisons. There is no particular reason why Ms Graham shouldn’t take advantage of that expertise.
MR O’MAHONEY: May it please the Commission.
MS GRAHAM: Thank you. That’s exactly what I was trying to do to, to assist the Commission.
COMMISSIONER WHITE: I have to resist the temptation for running counsel’s arguments for them, Ms Graham.
MS GRAHAM: I respectfully adopt the way you have characterised it, Commissioner. So I will ask the question again, and it’s in that context of an officer who has had numerous complaints of inappropriate conduct towards children in detention, whether it be assaults or other improper behaviour. And, indeed, whether there have been criminal prosecutions or not that flow or have been successful. And I want to ask you about the appropriateness of such an officer continuing to participate in the custodial setting and having direct contact with children in detention, and whether that’s consistent with the environment being a therapeutic one?---Well, it certainly – I mean, I don’t know whether the complaints were substantiated, but I’m presuming that if they were substantiated complaints it doesn’t – it’s not appropriate for people with that sort of record to be involved in a therapeutic community environment with children.
And the duty of care that you’ve spoken about extends from ensuring the physical safety of children to also ensuring their mental wellbeing; do you agree with that?---Yes, I do.
And so whilst, of course, in a custodial setting one wants to achieve a situation where the physical integrity of a child is preserved and that they are not physically assaulted by officers, would you agree that the continued presence of an officer who has engaged in that conduct in the past can have the effect of traumatising children in terms of their mental wellbeing just by the fact of that continued presence of the officer in the detention facility?---Yes.
Now, you talked about the complaints and whether they are substantiated or not, and I would just like to tease that out with you. When you talk about complaints being substantiated, do I take it you don’t mean there necessarily has to have been a criminal conviction that has flowed?---No, it could have been – no, it might not have been to a level of criminality. No.
And is it important, particularly when we are looking at the focus on a therapeutic environment, that the standard to which officers are held is not the standard of beyond reasonable doubt?---Yes. Could I elaborate a fraction. When we are talking about the actions of officers in the circumstances you’ve described, we also have to take account of the operating philosophy that has been set for that facility. And I think you might have raised earlier about the architect looking at what the needs of the client are to design a house, etcetera, and it’s critically important in a – particularly in juvenile justice facilities that, before you actually construct the facility and before you decide on the roles of staff that you actually understand what it is you’re trying to achieve there, and you quite rightly touched on the issue of the heightened duty of care, the fact that you have young vulnerable people who are in very early developmental stages in many cases. So if you don’t have that ethos, and that operating philosophy worked out and defined, of what you want to achieve in there, quite often what happens is that we build inappropriate facilities and we employ staff that aren’t appropriately qualified. So it – we might have officers, as you’ve described, performing badly. But then we have to look higher at what – the system that allowed that to happen and, in fact, let – brought those inappropriately trained officers, in many cases or officers without appropriate interpersonal skills and knowledge, into that role.
And one of the system failures can also be that such inappropriate officers are allowed to continue in their roles?---That points to a failure in governance, a failure of how to – what are acceptable standards and how they are controlled and dealt with, yes.
MR McAVOY: Commissioner, the next of my learned colleagues is Ms Goodhand, who is representing the interests of one of the child witnesses who have been given leave in respect of this matter.
COMMISSIONER WHITE: Thank you ..... can you identify your client just by the non-identifying initials, if you would.
MS GOODHAND: DV.
COMMISSIONER WHITE: Thank you.
MS GOODHAND: Mr Hamburger, I would like to ask you a question in relation to a question asked earlier to do with specialised community corrections officers in the community, specialised in the sense of dealing with young people. Would that recommendation also extend to parole system that dealt just with young people?---Yes, it would.
And you’re aware, aren’t you, that in the Northern Territory the parole system is governed by the Parole Board and they deal with adults and children?---Yes.
So what would your recommendation be in relation to any changes that would need to occur with the parole system to work in with the specialised Community Corrections?---My view, that – and just in context I’ve recently provided a submission to the review of parole in Queensland – there’s currently a review of our parole system in Queensland, so I’ve looked at this question you’ve just raised recently. I believe strongly that parole needs to be looked at in the context of the sentence. It’s part of the sentencing process, obviously, it’s one aspect of it. And if we take the restorative justice system in, that I mentioned earlier yesterday in northern Europe, and particularly for young people where it’s applied mostly in those states, the actual design of the sentence is constructed at the point of sentencing. In other words, there is a conference with the magistrate once the child has been found guilty of the offence. At that conference there are a range of practitioners from Corrections, Police, representatives of victims, community agencies that might be relevant to the particular circumstances of the child, family, and the sentence takes around three weeks to construct. In other words, in Australia typically we sentence, and we do it on precedent, and they’re gone. And I’ve spoken to magistrates in Queensland about this and the issue is, of course, resourcing, but I am just giving you the ideal scenario that is applied in northern Europe. So over the course of the three weeks – and it’s not a full time sitting at that stage, there are a number of sittings with the magistrate chairing the meeting, these professionals that have gathered to consider this case go away and work out options, and they come back to the magistrate with a constructed plan that takes account of whether a custodial component in their view is necessary at the first stage, or whether the young person could go straight to a community setting, or whether it’s some custodial and some community. They look, with the victim there, for an opportunity to provide some relief to that person who can actually see what’s happening and understand the way the sentence has been constructed, and so the actual parole decision really is taken at
that point of sentencing, because the child then gets a pathway that says, “Well, you will spend a month at this facility, you will go to a residential care home whether there is a boarding house,” or something, whatever it is that is constructed and there’s a range of mentors identified at this – for this pathway. Now, what happens then is the court gets regular feedback on the progress of that, so the court understands whether what they’re doing is effective, and so it’s a different model to what we understand at the moment. And I would be encouraging – once again, I talked about co-design before, that when we sit down and look at this option that we are talking about of remote facilities, and the way we deal with young people, I would be looking at seeking to bring that sort of capacity into the process. Now, that means, as I said earlier, if these enterprises in the remote areas had Aboriginal people trained to be either support – provide support services to the overall parole system or to actually do the full parole service, that’s something we would need to work out in the co-design process.
And when you say the court would look after, you are referring to something like the youth justice court would retain - - -?---Yes, desirably, it would be. Yes.
Now, I would like to ask you a question on another topic. Yesterday, you gave some evidence about the use of spit hoods?---Yes.
And the – you didn’t recommend that they be used in a youth detention centre, if I understood that?---That they shouldn’t be.
They shouldn’t be?---Yes – yes.
Can I ask you what your opinion is in relation to the use of restraint chairs?---I’ve personally never had an experience with those. I don’t like the sound of them. I think any the use of force or restraint is really, really a last option. And it’s distressing that when those sorts of things become almost commonplace, I guess, in terms of use. So it tells me – once again it comes back to earlier questions about the therapeutic environment and the ethos of the way the place operates that somehow violence seems to be endemic in the situation. So I’m not in favour of that sort of restraint, no.
And can I take it then that you wouldn’t be in favour of the use of a restraint chair with a spit hood?---No – no – no.
And do you have anything to add in terms of the use of a restraint chair for a prolonged period of say two and a half to three hours?---No. It shouldn’t occur.
So is that – if they are used, that it shouldn’t occur for that period of time; is that - - -?---Well, I just don’t like the sound of them, myself, being used. But certainly it shouldn’t be used for that period of time.
Now, you gave some evidence yesterday in terms of the lack of toilet facilities in some of the cells at Alice Springs Juvenile Detention Centre. I just wanted to ask
you some questions about that. Is it – how did the detainees – what was your understanding, or what were you told, in terms of how the detainees would go to the toilet?---They would have to attract the attention of an officer and then be escorted out of their cell to the toilet.
And I would like to get you to assume a situation. I expect there will be some evidence in relation to where occasions where youth detainees would ask the officers to go to the toilet and those requests were refused. Do you have any opinion about that?---I think it’s an intolerable situation where a person in captivity, I guess, hasn’t got control over the capacity to go to the toilet. And to have to ask officers to be taken out of your cell and taken to a toilet exposes that possibility you’ve just raised. Now, it could well have occurred, and that’s an awful situation. We were told that some detainees actually urinated or tried to urinate out of the window of the cells, because they either didn’t want to ask – or they could have been denied, I don’t know whether that is the case – but it was a horrible situation, and it’s just unconscionable that we would build or put children in that position.
Following on from that answer, I expect there will be evidence that on one occasion a youth detainee defecated in his pillow slip because he was refused a request to go to the toilet. Would you add anything to your opinion about that?---No. It’s just terrible, that’s all.
Now, in relation to access to water, is that something that you – that was raised in the course of your attendance at either Alice Springs or Don Dale?---I think it was, but I’m getting in an area of memory there where I’m just not sure. I know that when we – we came across the unsatisfactory things you’ve just discussed, that were told that action was in train. In fact it was one of the things that the Commissioner identified early in his tenure, and I think there was action to actually physically construct toilets in the cells and the issue of water was raised. I just can’t recall off the top of my head now what that was.
Well, I will describe a scenario and then ask you to provide your opinion in relation to that. In some cells in Alice Springs Juvenile Detention Centre and some cells in Don Dale, I expect there will be some evidence that there was no access to water and that if a detainee wanted to have a glass of water they would have to do a similar thing to the toilet situation and ask for the officer to provide the water. What do you say about that?---Well, it’s terrible. It’s wrong.
And in a situation to do with food, what do you say about the withholding of food as a form of punishment?---It should never occur. I speak with some experience there, because I can recall when I was first appointed as Director-General in 1988 I had the power to give seven days bread and water to prisoners which was something I found quite atrocious and we got rid of that from our – it was actually in our rules and regulations in Queensland at that time. So I resonate with what you’re saying. And it’s awful when food is deprived from people who are in captivity.
And in terms of punishments what would your opinion be as to the – for youth detainees as to the withholding of visits as a form of punishment?---Once again, that’s wrong.
Are you familiar with the item called the Hoffman knife?---Sorry, the - - -
Hoffman knife?---That’s for cut down, is it, for -Yes.
Yes.?---Yes.
What would your – what’s your opinion of the use of the Hoffman knife outside of an emergency situation. Is that ever appropriate?---No.
So I expect there will be some evidence as to the use of the Hoffman knife in situations outside emergency situations to strip clothes off youth detainees when applying the at risk procedure. What’s your opinion about that?---That should never happen.
Now, I want to ask some questions in relation to isolation. And when I’m asking these questions, what – I don’t mean being put at risk, I mean separated in relation to behaviour management. When you did your visit at the Don Dale Centre, did you observe the high security unit?---Yes, I did.
I would like to describe a situation that I expect evidence will be called in relation to and ask for your opinion on that. That unit was being used to house four to five particular youth detainees for an extended period of time, and in that unit the idea was that if you behaved yourself for – sorry, you were only permitted to be let out of your cell for one hour per day, and if you behaved yourself for one week you could then – that would be increased the following week to three hours per day. In that first part, with the one hour per day, all meals were in your cell. What do you say about that?---Wrong. Bad – bad practice.
And is there anything – is it in terms of the time or the – when you say it’s bad, are you able to elaborate on what part is - - -?---Well, it’s – it’s wrong to put misbehaving children in a situation – you mentioned what – an hour out of their cell in a day. What happens, I think, and what you’re talking about is that people running these institutions get confused between dealing with a situation where a child might be not abiding by whatever the rules and regulations are and then moving to punishment. Now, nobody’s liberty should be restricted within a correctional centre unless due process is followed. And in fact, with a child, I mean the first thing you have to do is accept that children are impulsive, they will do things, and they haven’t got the same sense of time that you and I might have. And, so, you have to understand that, and this is why we come back to the therapeutic community model is where if children are misbehaving you work to calm the situation, you have human contact. By depriving them of human contact it just – I can’t imagine what sort of trauma it’s doing to them. So the whole process is just wrong.
So that in – is that – do I understand you to say that that would be counterproductive?---Yes, very much so. And probably add – if these children, which most of them are, suffering from some trauma, it only – just makes that worse.
When you visited the Don Dale Detention Centre, in particular the BMU at that centre, did you make any observation about cooling?---Cooling?
Like the existence of fans and air conditioners?---Cooling. Sorry. I’m sorry, I just can’t recall – I can think that was discussed, and I’m sorry, I wouldn’t – I couldn’t give you an accurate answer.
That’s okay. If I was to describe that there will be some evidence that, in fact, there was no air conditioning in the BMU where the youth detainees were separated, and there were no fans in the cells and there was one fan I think in the hallway, with the climate in mind of the Northern Territory, what would your opinion be about that?---Just horrific, really.
Yes. I don’t have anything further. Thank you, Commissioners.
COMMISSIONER WHITE: Thanks, Ms Goodhand.
MR McAVOY: Commissioner, the next of my colleagues to cross-examine Mr Hamburger is Ms Lee, whose clients are de-identified, and are AA to AD.
MS LEE: AA, AB and AC, Commissioners.
COMMISSIONER WHITE: Thank you, Ms Lee.
MS LEE: Thank you. So just to build on what my friend was asking you about visits to Don Dale, can I just clarify that when you refer to Don Dale are you referring to the Old Berrimah Prison, which is now being renamed Don Dale, and used to hold youth detainees in Darwin?---Yes. And we also visited the previous centre as well. Yes.
MS LEE: Thank you. Now, with respect to the previous and the current Don Dale, and the youth detention centre in Alice Springs, I would like to ask you some questions with respect to the de-escalation cells. Now, you have said there was some difference in the way they were used in Don Dale and the way that they were used in the Alice Springs Corrections Centre in terms of the length of time that young people were put into those cells – cells, sorry, and seemingly the way in which there had been an interpretation of legislation with respect to the 24 hour period?---Yes.
Now, when you talk about de-escalation cells in that context, is it the same cell that you’re talking about when later on in your report you speak about the murals being painted in Alice Springs and talking about isolation cells?---Yes, that’s correct. Yes.
And also I believe they have been referred to as the BMU?---As - - -
The BMU, the Behavioural Management Unit?---The Behavioural Management Unit, yes.
So just to clarify, we are speaking about the same - - -?---Yes.
- - - cells when we use those different terms; is that correct?---You’re talking in both centres?
Yes?---Yes, okay. Because what – I’m thinking back, and I’m just struggling a little bit because my colleagues, Lee Downes did the detailed inspection of that facility, I – and I’m just – when you say BMU, I’m picturing it at Don Dale, but going through the gate and up to the right there is a high security block and there was a separation cell in that one. Is that the one you are talking about as the BMU?
Well, sir, I’m just seeking clarification with respect to your report. Perhaps if we could pull up page 315 of the transcript. That was some evidence you gave yesterday with respect to the inspection that you and Mr Downes, I believe – Ms Downes - - -?---Downes, yes.
- - - did, and you were talking about seeing some holes in the concrete walls?---Yes. And that’s where I was about to go to, because I think that was the present BMU; is that right?
I believe so?---Yes, because that’s where we saw the holes, and the separation cell at Don Dale now, I think, is up in that high security block down at one end. Yes.
Thank you. So when you talk about seeing those holes and them causing you concern, because in your view they couldn’t have been done in five minutes, those concerns were raised specifically with respect to the previous Don Dale centre?---Right.
Is that correct?---If that’s where that was. Yes, sorry.
Thank you. Now, you have also spoken about the use of the de-escalation cells for isolation of young people. In terms of isolation, would you consider it isolation to have two young people housed together but apart from the general population?---It’s isolation of those people, I guess. Those two together. But there’s – it’s just – it means there is one more person there.
So in your report, if I can just take you to page 147. The second part of the page, where you refer about a visit to Don Dale during 28 July 2016?---Yes.
So here we are referring to de-escalation cells?---Which paragraph is that in?
The second dot point?---Second dot point. De-escalate youth for up to 24 hours. Yes.
Now, you say that those cells were used to house young people who were at risk?---Yes.
Did you come – did any information come to your attention with respect to housing high security prisoners in that area?---How they house the high security?
Did any information come to your attention about the procedure of housing high security young people in those de-escalation cells?---Not to me personally, no.
And, again, I will be taking advantage of your experience. In terms of – you spoke yesterday about having a secure perimeter fence and that in your view appropriately young people would be able to move within it so long as the exterior perimeter was secured. Now, in terms of where that has not occurred what would your view be of high – of young people classified as high risk prisoners being kept in the isolation cells, the de-escalation cells or those BMU cells, whichever phraseology you would like to use, for periods of up to 23 hours a day?---No. Well, I wouldn’t condone that. I’m not an expert in the design of therapeutic facilities, but I have a – it’s just sort of a view, I guess that – do we really need cells for separation and for de-escalation? I mean in a therapeutic communicate I would hope that with intensive and well trained staff resources that you would have a far different approach. And the tragedy of having a cell designated – and I know in adult prisons the same things happen. Once you’ve got it designated as a detention unit or a separation cell, etc, it becomes a matter of course just to use that to deal with that situation. And then the better approach is to not have those things and look for other ways to deal with the circumstance. And I think putting a child, particularly, into any sort of separate confinement like that is bad practice in my view.
And, in your view, keeping a child in separation like that for two weeks or more?---No. That’s unthinkable.
Now, sir, if I can just take you to page 3 of your report. That’s a contents page. I just have a question with respect to the way that you’ve separated the things that you have looked at in terms of correctional services in the Northern Territory. In chapter 3 you have separated into subsections, if I can call it that, Custodial Corrections, Community Corrections and youth detention?---Yes.
Is that as a result of what you’ve expressed today that there are important differences in the way that adults and young people are to be managed?---Yes – yes, I can say.
So can I take it that when you refer to things within your report, and they are part of chapter 3.1, that they refer to custodial corrections? That is, the maintenance of an adult prison and the operation of the Darwin correctional precinct?---Yes.
If I can speak to you about the immediate action team. You refer to the immediate action team at page 114 of your report. Are you able to explain to us what that is?---It’s a team of highly trained security officers whose task, as I understand it, is to be available to react to situations that could be – perhaps violence or where prisoners are causing concern, and they are the security force.
And it says here that they provide a visible deterrent to unacceptable prisoner behaviour. Is that visible deterrent apparent from the clothing that they wear?---It certainly is. And that’s prefaced by saying that’s what the operations manual says. I can add to that, but I will wait to hear what you have to ask me.
I would like to speak about the operations manual. If we could just look at page 115, the fourth dot point on that page. It refers specifically to the section on the IAT in the operations manual. Can you explain to us what you meant in that paragraph?---This is one with the dot points?
Where you say:
As it often happens. specialist groups such as the IAT - - -
?---I see, sorry, yes.
Continuing:
- - - often become elitist groups and unresponsive to direction by managers and senior officers. It is the belief of the review team that this attitude is fostered unashamedly by the section on the security group in the DCP operations manual.
?---Yes. A bit of a story around that. That paragraph you’ve just read, we drafted that after a second visit to the Darwin correctional precinct by Ms Lee Downes. Now, what happened on the first visit there, when I was present – I wasn’t present at the second one – we were taken in – this is to give you the context of why we have written this – we were taken into the kitchen area, and we were quite impressed with the way the kitchen was operating: there was a large number of prisoners in there preparing meals and we had quite an interesting time understanding what was going on there. And sort of halfway through the process two IAT officers walked into the kitchen. They were fully equipped with all their gear, and walked through looking at prisoners looking at us, very stony faced, I guess, is how I would describe it. And I was quite surprised because, having worked in a prison for a long time, I know that these sort of squads – if they are overzealous with the way they go about their duties, they actually create tension in a prison, and in fact I was involved in abolishing the one we had at Boggo Road Prison, because they caused more trouble than they were worth. And as soon as I saw this group walk through I was quite concerned because we had been there for quite a while and it was a very well organised kitchen, the prisoners were working industriously, the staff were relating well, it was just going good. And these two fellows walked through, and you could see the prisoners sort of
– you know, get a bit of tension. So on the – so that wasn’t a good impression, and I just felt that that was bad practice, that you don’t do that. Later, when Ms Downes went back to do some follow up in investigations, she actually spoke with that team in their office about the way they went about their work, and she formed quite – I won’t go into all the detail, but she formed quite a negative opinion of the way that they were approaching their duties, their attitude towards management and so forth. And so that’s why that has been highlighted.
You describe a situation during the day in a kitchen area of the adult prison?---Yes.
And prisoners responding in a way to the presence of the IAT?---Yes. The prisoners just seemed to be – body language, really, a bit cautious.
Now, if I can take you to page 153 of your report, at point 3.3.6 you talk about youth detention centre emergency response procedures?---Yes.
There’s no reference in there to the IAG; is that correct?---No reference, no.
Do you have any information that came to you during the preparation of this report about the use of the IAT – sorry, IAT, yes, that’s right, in the Don Dale Detention Centre?---I personally can’t recall any information about that.
Given your own observations of that team, in your view, would it be appropriate for that team to have responsibilities with respect to young people held in detention at Don Dale?---No, it wouldn’t be appropriate.
Now, one last point, sir. On page 155 of your report – and, again, this is in respect to training. And I suppose those differences that you’ve highlighted are important between those who work with young people who are detained and those who work with adult prisoners. You’ve indicated that there are matters in respect of youth justice training that require more attention?---Yes.
Would you say that that is the situation with respect to identifying and addressing young people with mental health concerns?---Yes.
You said earlier in your report, I think when speaking about corrections officers, so staff in the adult facility, that you recommended that they undergo mental health first aid training?---Yes.
Is that something that you are of the view would be useful to those in involved in Don Dale, that is the youth justice officers?---Yes, it would be.
Now, we’ve heard – or you were asked a question about the use of a Hoffmann knife?---Yes.
Now, this is at page 412 of today’s transcripts. You were asked about the use of that knife to strip clothes off a young person when applying the at risk procedures. And
you were asked what your opinion was about that, and you said it should never have happened. Now, just with respect to at risk procedures, when – in best practice, in your experience – for young people who are considered at risk or potentially at risk, when should those practices be engaged?---Which practices, sorry?
General at risk responses?---Probably getting down to a little bit outside my direct operational area of expertise, so I wouldn’t - - -
It’s fine if you don’t feel - - -?---Yes – yes.
- - - comfortable answering that question. I will move on. What is your view with respect to the removal of clothes, irrespective of the use or otherwise of a knife – of a young person who is at risk or potentially at risk of self harm?---I think – you know, the removal of people’s clothes in any circumstance like that is always a demeaning experience and it’s a thing that at all costs should be avoided. And, once again, I’m not fully au fait with the practices of a therapeutic community but I couldn’t imagine that there aren’t ways to deal with that situation rather than do that. And even if it’s to have somebody sitting with the child the whole time or something. But to actually then – I think where the lack of understanding here is that we are dealing with very traumatised people. And anything like you’ve described, the stripping off clothes and going through those sorts of things only worsens the whole thing. So it comes back to the operating philosophy and I don’t see that, really, should be part of the operating philosophy of a therapeutic community.
So in conclusion your view is that detention facilities for young people such as Don Dale, such as the detention centre in Alice Springs should be operated on the basis of this therapeutic community?---Exactly. And that’s the reason why we pushed the scenario at the World Café about imagining that those existing facilities were gone and what would you have in their place.
Thank you. Nothing further, Commissioners.
COMMISSIONER WHITE: Thank you, Ms Lee.
MR McAVOY: Thank you, Commissioners. The next in line is Mr Lawrence representing de-identified witness AD. Yes, AD.
MR LAWRENCE: Yes, your Honour. Yes, of course. As my learned friend most kindly said in his introduction, I’m representing one of the children that was in the care of this Department of Correctional Services that you investigated and done your review about. He’s 16 now; he was 14. He’s from Tennant Creek. Your report, your review, was described as a root and branch review. In other words, it was a thorough comprehensive investigation into the Department of Correctional Services pursuant to your terms of reference?---Yes.
And you’ve told us how you came about being involved, and I think it was early this year there was an exchange of emails between yourself and the Northern Territory Government, because you had got wind of the fact that they may well be looking for such a review?---That’s correct.
I think the evidence in this Royal Commission will inform us that – I think it was in November of the previous year that the then Chief Minister announced publicly, following the resignation of his then Chief Executive Officer, Mr Ken Middlebrook, that he was going to commission such a report. Now, your review was basically, from what I gather, about three months’ worth of solid work?---That’s correct.
You’ve said it was very compressed, necessarily. And you looked into the whole Northern Territory Department of Corrections; is that correct?---That’s correct.
And especially you looked into the detention facilities, both adult and youth?---Yes.
Both in Darwin and in Alice Springs?---Correct.
Both male and female?---Yes.
And I think we know from your CV and your evidence already that you were previously in Queensland a Director-General of the Department of Correctional Services for just short of a decade?---That’s correct.
So you would have had responsibility in that position for a large number, certainly relatively, of penal institutions?---Yes.
Including youth detention centres?---For a – for a short period.
You looked into the Northern Territory’s Department with your team, which I gather was five other individuals and yourself?---That’s correct.
Early in the piece you went straight to the subject matter, namely the jail here in Darwin, and the youth detention centre here in Darwin?---Yes.
The youth detention centre was called Don Dale?---That’s correct.
MR O’MAHONEY: Commissioner, I hesitate to interrupt my friend in full flight, but it’s not clear who is in the witness box during some of these exchanges. My
friend is making a lot of observations and having – and asking the witness to agree with them. There’s two things about that: one it’s bordering on the giving of evidence from the bar table, but more importantly all of these matters have been traversed, they’re contextual, and in my submission don’t need to be readdressed.
COMMISSIONER WHITE: Kind of you to look after our interests. Thank you, Mr O’Mahoney.
MR LAWRENCE: I’m really just trying to introduce the evidence I am going to ultimately.
COMMISSIONER WHITE: Well, look, Mr Lawrence: you have been sitting here. You know all of this has been given, and it’s uncontroversial evidence, and everybody has read the report. I wonder if perhaps you need to set the scene any more.
MR LAWRENCE: Alright.
COMMISSIONER WHITE: Perhaps we can go to the matters of key interest to the client that you represent.
MR LAWRENCE: Right. I think my last question before my learned friend, on behalf of the Northern Territory Government objected, was that you went to the facility that was called Don Dale; correct?---Yes.
And that facility is a former adult prison?---Yes.
Did you actually go to the original Don Dale Youth Detention Centre?---We did.
Did you do that at the same time?---No.
When did you go there?---It was late – later in the – I couldn’t picture the date, but it wasn’t – it was some time after the first visit to the where the juveniles were accommodated in the old adult centre. But I can’t give you a time off the top of my head.
I gather your evidence from yesterday was that you did that preliminary work, if you like, in the first three weeks of May?---Yes. That’s right. I was up here for three and a half weeks.
So it would have been in that period that you looked at the previous Don Dale?---I honestly can’t remember the date now. It’s a while ago. I just don’t know when I did it, when we did it.
Was it closed down when you went into examine it?---Yes, it was.
Were you given access to an area which is known on the evidence in this Royal Commission as the BMU, the Behavioural Management Unit?---If that’s the one we were just talking about with the previous questioning, where I observed the damage to the wall and the grilles, yes.
Yes. And were you in company when you examined that?---I was. Yes.
Were you escorted by officers from the Department of Corrections?---Yes.
Was there any discussion going on between you when you were examining that?---Yes.
Was there any discussion about the notorious incident that had occurred there in August the previous year, which ultimately involved the gassing of that area?---There was discussion about an incident where young people had got into the roof, as I recall. Is that the same incident, or - - -
You told us earlier that you watched the Four Corners program - - -?---Yes, I did.
On Monday, 25 July?---Yes.
Did you recognise, when you were at the BMU in May of this year, the stuff you saw in the Four Corners report program?
MR HARRIS: I object to that question. Might I come to the lectern? My objection has two bases. The first is this: Mr Hamburger was commissioned to undertake, and did undertake, a root and branch review of the adult and juvenile corrections system in the Northern Territory. That retainer and the investigation post-dated the events that Mr Lawrence’s question relates to, as indeed the retainer post-dated the closure of the old Don Dale. Mr Hamburger has said that certain things motivated him to act in a certain way, having seen the Four Corners program, and there could be no objection to him contextualising his actions by reference to certain thing, including seeing the program.
But what he connected you up with what was on an ABC television program with what he saw, has absolutely nothing to do with anything. The – Mr Hamburger’s observations of a facility that is now closed are a piece of history in terms of his investigations. The Four Corners program does not prove anything, for a number of reasons that I won’t go into now, but that is not a safe foundation for anything other than vision which might be shown. Certainly not the commentary about it. And my submission is that a question which asked this witness to see if he identifies something that was in a TV program advances these proceedings not one step.
COMMISSIONER WHITE: Thanks, Mr Harris. Well I’m not sure why Mr Lawrence is going down this path. Perhaps he can elaborate, so that you can deal with Mr Harris’ objection.
MR LAWRENCE: Well, I want to harness his expertise, ultimately, in commenting on his view as to the conditions that were enjoyed by my client and other children in that very unit that we now know he did, in fact, examine in May of this year.
COMMISSIONER WHITE: Right. Perhaps you could ask him those questions rather than this rather lengthy introduction and - - -
MR LAWRENCE: Okay.
COMMISSIONER WHITE: - - - just go to the question. It’s unlikely that you will be pulled up if you ask a direct question.
MR LAWRENCE: Yes. The child I represent was kept in that BMU back in August of 2014. It was – you saw the cells?---I did.
Concrete?---Concrete cells, yes.
Small?---Yes.
No air conditioning?---Yes.
No fan. He was kept in that cell for 23 out of 24 hours per day, and he was kept in that condition for 17 days, and he was 14 years of age at the time. What is your opinion of that type of treatment of a 14-year-old Aboriginal child in a detention centre?---That’s terribly wrong. I – it couldn’t be defended, in my view.
The – going back to your total brief, you were to look at not only the youth detention centre but also the adult jail?---Yes.
You’ve given evidence about that. You’ve concluded in relation to the Department of Corrections’ new jail, if I can call it that, it’s sometimes called “the Super Jail”, that it’s unfit for purpose?---Yes.
And there’s various reasons why you so conclude?---That’s correct.
You say that there was 50 per cent of the prisoners don’t have any work or rehabilitation?---Yes.
It’s even worse for the women prisoners in that regard. Alice Springs jail is overcrowded?---Yes.
The new jail has a system whereby male prisoners can only flush the toilet three times a day?---Yes.
The department got rid of Aboriginal liaison officers?---Yes.
There are difficulties in your opinion with the clarification system that exists within the adult jail?---Yes.
MR McAVOY: Commissioner, I would ask that Mr Lawrence get to the point. It’s a little bit removed from his client’s interests, and I understand that his client is not presently in detention, and not an adult.
COMMISSIONER WHITE: Yes, Mr McAvoy.
MR McAVOY: And I have given him a little latitude to hope that he might get there, but I would ask that he get to the point, if there is one.
MR O’MAHONEY: Can I also briefly be heard on that, and add to that objection, along these lines.
COMMISSIONER WHITE: Right wing, and left wing, Mr Lawrence.
MR O’MAHONEY: Yes. I apologise, Mr Lawrence - - -
MR LAWRENCE: No .....
MR O’MAHONEY: - - - for the pincer approach, but could I say this, Commissioner: apart from being beyond my friend’s client’s interest, I would also submit it’s beyond the terms of reference of the inquiry. As I understand it – and my friend will correct me if I’m wrong – these questions are being wholly about the adult facility, and there’s no link, in my submission, to the questions as put, and the inquiry - - -
COMMISSIONER WHITE: Well, we will see if Mr Lawrence can make his questioning either relevant or else just desist and start talking about – asking questions about the areas that are of concern to his client.
MR LAWRENCE: Well - - -
COMMISSIONER WHITE: And it couldn’t possibly be on the basis that statistically he might end up in the adult prison, because I don’t think we could go down that path.
MR LAWRENCE: Well, I don’t want to suggest that for a moment. But what I do want to suggest, most strenuously, that this is in my client’s interest: to discover what the guardians who are responsible for him in the creation of the BMU are up to in relation to the running of their Department. That Department is directly responsible for his experience, and it’s therefore relevant for him and his family to know just what this Department’s capabilities are. And if it’s reflected in the way they are running the adult jail then it’s relevant to his journey, and that’s why I explored this line of questioning on his behalf.
COMMISSIONER WHITE: Mr Lawrence, it is an interesting area no doubt, but I think the ruling must be that you should confine your questioning to juvenile detention and the more immediate interests of your client.
MR LAWRENCE: If it pleases the court.
Let me ask you about Don Dale, the present Don Dale. The one you examined this year?---Yes.
The one that you’ve concluded is totally unacceptable?---Yes.
And you’re of the view that nothing could make it suitable as a juvenile detention centre?---That’s correct.
You’ve said that the department runs without a strategy plan?---It didn’t have a strategic plan, no.
Certainly not as far as what you observed in Don Dale as a plan of therapeutic jurisprudence?---Not at that time, no.
Did the evidence suggest to you that if there was a plan it was one which reflected direct punity?---Direct punity?
Well, you’ve told us that you saw and observed guards guarding; correct?---Yes.
And they were guards, they were adult guards?---Yes.
Were there youth justice officers and adult prison guards?---I think there were some youth justice officers. Some were – I’m not – I’m thinking now of Alice Springs and Don Dale. I’m not specifically sure about Don Dale. Alice Springs I – some of the officers I spoke to were youth justice and some – or either qualified or studying youth justice subjects. I don’t know about Don Dale.
Alright. The – during your evidence, and then your report, you talk about the cafe world or the World Café experience, or the exercise that you conducted, and you explained all of that. And it included asking all of the participants who were middle to senior management in corrections, both adult and juvenile, to read the Vita Report. And I think from your evidence today you had read the Vita Report?---Yes, I had.
I think you said you have read it twice?---I’ve read it again recently, yes.
And in that report, which looked into – discretely Don Dale, it didn’t look at the adult prison, it made a number of recommendations?---It did, yes.
And did you inquire during your investigations, from Corrections, if any of those recommendations had been complied with?---I understand there was an implementation plan for the Vita report. I think, from recollection, that it hadn’t – the plan or the implementation hadn’t been completed as such. I can’t tell you now which ones had been implemented and which ones may not have been.
Well let me ask you about qualifications and training, and experience of the youth justice officers or the prison guards that you examined. Did you find shortfalls in their qualifications?---Yes. And we have commented on that in our report and Ms Downes looked at that in some depth, and we also spoke to the Children’s Commissioner. When we interviewed the Children’s Commissioner, they had concerns about the training of officers and, at that time, there was some disagreement between the Children’s Commissioner, as I recall, and Corrective Services about the training program and we’ve commented on that in our report. I just can’t recall which section. But we’ve asked, I think, for that to be reviewed and attended to.
Alright. Well, were you aware of the recommendation from Vita that the imbalance in the qualifications of the staff at Don Dale had to be reversed? Namely, the majority of officers were either part time or casual as opposed to full time?---Yes.
And did you observe that situation when you made your observations?---We did, because it was commented to us by a number of people that they had difficulty recruiting staff, and that’s one of the reasons I think they had adult correctional officers across there. So the whole question of staff training, staff recruitment and their salary levels and things of that nature was raised with us, and we’ve covered that in our report.
Now, when you went to first look at Don Dale, which is the previous adult prison - - -?---Yes.
- - - it would be fair to say that you were shocked by what you saw?---Yes.
To the extent that not delaying your work, you thought it prudent if not necessary to alert the CEO of some of the dangers that you saw within the facility?---That’s correct.
MR McAVOY: Commissioner this evidence has been covered in-chief in a fair amount of detail. I would ask my friend to move along, if he could.
MR LAWRENCE: Well, we are actually spending more time on objections than actually – if I was just allowed to ask the question, I will make it relevant.
COMMISSIONER WHITE: Yes. I understand that counsel, of course, who come after like to have an opportunity to ask the questions in their way, but I would ask counsel to bear in mind that where there has been uncontentious evidence and where the answers that have been given are the answers that they wish to hear, that they don’t ask it a second or third time. That’s - - -
MR LAWRENCE: One of the things that alarmed you and your colleagues when you first went to Don Dale was the number of hanging points that were in existence?---That’s correct.
And you pointed that out immediately - - -?---Yes.
- - - to the CEO of Corrections, Mr Payne?---That’s right. That’s correct.
And can we take it in no uncertain fashion, namely that they should be removed?---Yes.
And your evidence, which – forgive me everybody – we have already heard, was that you went back there near the end of your work, namely on the week of 25 April through to 31 April, when you finalised your report?---No, that - - -
July, sorry?---July. Yes.
You went back there; correct?---That’s correct.
And that was at the urging of the then-Chief Minister - - -?---That’s correct.
- - - about his concerns about somebody dying overnight. And when you went back there, three months later, were those hanging points still there?---I would have to – can I refer to the page of the report, because we reported on – in the report exactly what we saw at that point. I don’t want to make a statement that’s not quite accurate.
COMMISSIONER WHITE: Do you have the page number, Mr Lawrence, so that we can have it put up on the screen?
MR LAWRENCE: No, I don’t.
MR McAVOY: Commissioner, I can assist by handing back to Mr Hamburger the copy of his statement and annexures that he had yesterday, and he might be able to find it, if given a moment. Thank you very much.
MR ..........: 147.
MR LAWRENCE: Yes, 147. Finding 73. Now, just take your time in reading that, with a view to perhaps refreshing your memory?---Yes, that’s – well, that’s what we reported. That, in fact, nothing had been done locally to rectify the hanging points, other than saw off a tap. But there were other actions taken by the Commissioner.
Was there an explanation given to you by anyone as to why your urging of getting rid of the hanging points was not affected?---I think from recollection they had actually commissioned an audit, a full audit of the centre to look for those things, and that was underway. And I guess it was just a logistical exercise in getting that audit completed and getting the work done.
Alright. Well, that would have been presumably one of the reasons why, like Chief Executive Officer Payne you were unable to give any guarantees of any fatalities overnight when the Chief Minister sought the same?---One of the reasons, yes. It’s a risk prone environment and it’s very difficult to give guarantees in those circumstances, particularly when the facilities aren’t purpose built.
Right. In – I want to ask you about prioritising youth detention centres by the department. When you did your investigations, you would have obviously looked at where the priorities lay structurally, personnel wise, financially. Would that be fair?---Yes.
And what, of course, you discovered, was this very large adult prison which had expended a lot of money and resources, and you asked for details in relation to that and were initially told you would be given them, but the government changed their mind?---Yes.
And you are able to tell us what was the relative outlay from the Department to the adult correctional service compared with the youth?---I can’t – I can’t give you any figures on that.
And is that by virtue of the fact that you haven’t been given access to this business model, this business case?---No, not particularly. And I am testing my memory now, but in the report I think there might be some table somewhere about the relevant amounts that are allocated between the different functions. I’m not sure of that. But that – that had nothing to do with the business case. We could get that information from the department in terms of their current expenditure, if that’s what you’re talking about. The current expenditure on the different – whether it be Community Corrections, women, juveniles or adults. That would have been available.
Is that in your report?---I’m not sure. As I say, it might be in one of the appendices, but I can’t answer that at the moment.
Alright. Were you given an explanation by the Department when you were doing your work as to why the juveniles were housed in the former redundant adult male jail?---We heard it was a decision by the previous administration, and – so that’s obviously – was some anecdotal evidence around the fact that they had lost faith in the old Don Dale, in terms of its capacity to contain the young people, and a decision was taken to move it across there.
Weren’t you told that they had, in fact, sought tenders to upgrade Don Dale, which came in at roundabout 4 to $5 million?---Update the previous Don Dale?
But they chose to not go there, and reopen the adult prison and expend approximately 800,000 in refurbishing that; were you informed of that being the decision?---Not precisely, no. Not – I can’t recall that I was told that.
Well, you had a look at the previous Don Dale. Was there any discussion about upgrading it when you were looking at it?---Yes, there was. In terms of – theoretically, I suppose, because interestingly the impression that we got – and I’m talking about my other team member, Ms Downes, was that we liked the – or preferred the ambience of the old Don Dale to where the young people were moved to. And just in sort of casual discussion with the officer who was showing us around from Corrective Services head office, we remarked to him that we thought that this was a much better – had the capacity with some changes to be much better than where they had been put. And that was just an impression we got from going there and looking at the other place.
Well, the evidence will be in this inquiry that the government then – and this is in 2014 – did seek tenders. They were in the region of 4 to $5 million, but they didn’t accept any of that and made a decision, rather than do that, to shut it down and take the children, male and female, and reopen what had previously been shut down. Namely, the adult male jail, and spend 800,000 on the facility that you observed.
COMMISSIONER WHITE: Mr Lawrence, are you going to ask a question?
MR LAWRENCE: I’m going to ask it.
There is one more limb to this I would like to put, and I’m putting this to you as an expert, as someone who is commissioned to examine corrections services, not only on this job but you’ve done it before, haven’t you, in New South Wales?---Yes.
You’ve done it in relation to detention centres. The last limb I want to put to you is this: that not only did they decline to upgrade it and reopen the Berrimah prison, but the minister responsible is on the record in Parliament as saying that the reason he did that was so that he could “deal with the kids that are giving us grief”.
MR O’MAHONEY: I object to this question.
MR HARRIS: Closely followed by me.
MR O’MAHONEY: Commissioners, this question, as I apprehend it, has been rolling for minutes and has built into it a narrative account of events that would be better served by my friend giving that account from the witness box. It is not an appropriate – or of any probative value, in my submission for a question like this to be put that somehow invites reflections from a witness as to some minutes of commentary. And it’s just not helpful, and in my submission not fair to the witness as well.
COMMISSIONER WHITE: Mr Hamburger can probably fend for himself, alright? He is certainly quick to say whether he can answer the questions. But perhaps, Mr Lawrence, you might like to hear also from your - - -
MR LAWRENCE: Of course.
COMMISSIONER WHITE: From Mr Elferink’s counsel. Do you want to –
MR HARRIS: I have nothing to add, Commissioners.
COMMISSIONER WHITE: The same. Mr Lawrence - - -
MR LAWRENCE: I would have thought the witness is more than capable of answering that question, notwithstanding it was about 900 words, it was still - - -
COMMISSIONER WHITE: Far more than 900. Mr Lawrence, long speeches, really are not helpful from counsel. They are disregarded by us, because they are not evidence, and you are really using it, if I might say so with respect, a little bit ingeniously, and –disingenuously. So could you ask questions of Mr Hamburger that are within his expertise? You’ve told him the decision that was taken by government, that’s fair enough. But what do you want – do you want him to reply to it by way of a yes or no, or do you want him to add something more to the reflections that you’ve put forward?
MR LAWRENCE: I just ask: what is your opinion of that decision, namely either upgrading the previous purpose-built facility for kids to the cost of what I’ve said, or reopening the adult jail and putting the kids in there?---I’m sorry, I guess I can’t really answer that question because I haven’t looked at the information that the government had to make that decision. I haven’t got any idea of the costings, I haven’t turned my mind to which would have been the best outcome to do that. So I really can’t answer it.
Okay. Just, I want to – you’ve given us the evidence on your preference for smaller facilities, and healing centres, and the like. Might my client’s experience, following being in Don Dale, also included being sentenced by a court to a suspended term of imprisonment which involved him going out bush with his parents, or his father, and getting work on a outstation mustering, to which in his statement – and will be his evidence – he found it was great. Is that the kind of thing that you would recommend and indeed what is central in your report?---It’s – that sort of experience is one of a number of experiences that would be part of that process. These healing centres hopefully would offer a variety of opportunities for young people in different ways. There are young people interested in art, there are young people interested in a range of other things – sport and so forth. So the older group of the young people who are still classified as children, my personal view would be that there would be a focus on alternative education and work skill to get people ready for employment, because ultimately you want these young people to have the dignity of a job. So what you’ve described, it would be one such thing that would be part of that mix.
You told us about your experience in Queensland when you were giving evidence at a parliamentary committee?---Yes.
Concerning a proposal by the government over there 10 years ago to build a 4000 bed jail?---Correct.
And you gave evidence which there fell on deaf ears?---That’s right. Correct.
And you’ve given evidence here about how, when you were doing your work and making up your report you “parked”, I think is the term you used, your recommendation that we should – the government should set up a Commission in the way you described. And that the catalyst, if you like, was watching what had occurred in the old Don Dale, not only in 2014, but there was incidents previous in 2010.
COMMISSIONER WHITE: Mr Lawrence, could you just ask the question. We heard all that evidence just so recently, and Mr Hamburger seems to have a very good memory for what he said, so could you just ask him the question.
MR LAWRENCE: Was your experience in Queensland, as in your recommendations not been followed through, in any way relevant to your decision ultimately to place these recommendations in your report?---No.
MR McAVOY: I object, because the question is not clear to me in what is being asked and its relevance to the present scenario. I’m sorry, it may be just a matter of form, but I’m not sure that the question is asked – asked the witness to properly answer any particular question. Perhaps my friend could have another go.
COMMISSIONER WHITE: Really. Mr Lawrence.
MR LAWRENCE: Did you – was that difficult to understand? The question?
MR McAVOY: It’s not so much that it’s difficult for the witness - - -
MR LAWRENCE: No, I’m just - - -
MR McAVOY: - - - to understand, Commissioner, it’s that the – that the final proposition is removed – appears to me to be removed from the set up to the question, and I’m not sure whether there’s another question that needs to be asked. I’m not going to tell Mr Lawrence how to ask his questions, but I object to it in that form.
MR O’MAHONEY: I make the same objection. I would make one addition to it: the question as finally put was nonsensical, in my submission. It couldn’t be followed. But equally it was disconnected from the narrative that went before it.
COMMISSIONER WHITE: Listening to all of those things, there were other problems too. Mr Lawrence, what is it that you want to ask Mr Hamburger?
MR LAWRENCE: The decision that you made, which you’ve described to, if you like – I withdraw that. Did that experience in giving evidence at the parliamentary committee have anything to do with your decision making in this report?---No. Nothing.
Okay. Thank you.
COMMISSIONER WHITE: Thank you Mr Lawrence. Yes, Mr McAvoy. Who is the next person to ask questions?
MR McAVOY: Thank you. The next to cross-examine Mr Hamburger is Mr Tippett on behalf of Mr Kenneth Middlebrook, the former Commissioner for Correctional Services who resigned on 29 December - - -
MR TIPPETT: Yes. Mr Hamburger, you are aware that Mr Middlebrook was in charge of Corrections, at least over the period of about 2012 to 2016. I want to direct my questions, really to some conclusions that you arrived at in your report that both affected the operation of Corrections over that time but, more to the point, of course, directed towards knowing the difficulties the past has thrown up in order to prepare for them into the future, as your report projects in terms of its models for Corrections ongoing. So the first thing I want to direct your attention to, which you mentioned on a number of occasions in your report, first in your executive summary but secondly at page 446, and that is the high imprisonment rate in the Northern Territory. Now, the reason I raise that with you is twofold. Firstly, you really lead off in your report about that imprisonment rate and you go on to observe, at page 46, how you consider it is a significant component of this whole process or ongoing process in relation to Corrections. Is that the case: is it a component of it?---It is.
And so, what I want to ask you is this: can Corrections really alter that imprisonment rate in any way?---Yes.
And how can that be done?---The important role that Corrections plays in reducing the imprisonment rate is to play its part in reducing recidivism. Because I said earlier that we have two incoming streams, if you like, to Corrections. It’s first offenders coming in and then recidivists coming back. So if we have a high recidivism rate then that increases the imprisonment rate and, of course, Corrections plays a part – only a part – in assisting in reducing recidivism.
Now, the one thing that you refer to in your report in relation to the imprisonment rate is, in fact, an – which goes on to planning for Corrections facilities into the future – is to stop people coming into the system, that is in the criminal justice system?---That’s correct.
Now, apart from recidivism can anything else but – in your view – other than government policy do that?---Anything other than government policy?
Anything other than government policy. That is the legislation, the government approaches to the nature of imprisonment and how people should be dealt with in such a system?---The – I’m still not following the question entirely.
What I’m getting at is this: you point out the horrendous rate, imprisonment rate in the Northern Territory. You mention a couple of drivers in relation to that rate at page 46 of your report, those drivers being policing strategies and activities, legislation, the courts, poverty and social conditions, unemployment, drug and alcohol use. Now, these are all factors that go – that need to be addressed in order to prevent police – people from getting into the system in the first place?---That’s correct.
Alright. Now, the more people you prevent getting into the system, it’s axiomatic, the less people the system has to deal with; is that right?---That’s right.
The less cost to the community in relation to dealing with people within a corrections system?---Yes.
The greater the flexibility of the system to provide a range of outcomes for people who fall within it?---Yes.
And, of course, the – a greater ability of government to provide funding to properly equip the corrections system in order to obtain outcomes such as a reduction in recidivism. Is that right?---That’s right.
So really the reason, it seems to me, that you’ve led off in your report with your observations regarding the sentencing rate and the reason that you deal with it under part 1, Current State of the NTDCS at page 46 is because, if that factor is addressed, Corrections will be better equipped in the future to address the sorts of problems that needs to be addressed with people who come into the system?---Not entirely. In the sense that you can’t leave aside the issue of how Corrections functions. And there needs to be, as we have argued in this report too, a change from the silos of prisons and probation and parole service, and juvenile detention centres and youth justice. There needs to be better approaches to the way those services are delivered as well.
Yes. But is that approach not facilitated by the fact that an imprisonment rate is reduced?---Yes.
And to reduce an imprisonment rate, of course, we would rely – would you not agree, being in policy positions yourself – upon government policy concerning people, juveniles and adult the going into the corrections system?---Government policy is very important to set the framework within which things can happen. The other critical issue is to empower communities and to build pride in communities and strengthen communities and families to actually have a law abiding and productive lifestyle. So governments can’t go right down to that level, but they can set a framework and a philosophy and encourage a change in the community functioning, and that’s why made we’ve given a lot of importance in the report, and I’ve spoken at length already, about the empowerment of Aboriginal people in the remote communities to change the way those communities function, and government policy can provide a framework for that.
Of course. And that’s part of reducing the imprisonment rate?---Yes, exactly.
So this is work that needs to be done before people go into the system?---Exactly.
And to avoid as many people as possible, obviously, becoming part of the corrections system?---Yes. And as we have discussed, as I suggested earlier, changes in the way sentencing processes are structured and all of that. So it’s holistic system.
But in terms of the Northern Territory Department of Corrections in the period in the –certainly the 2000s, what we have seen – that is what we have seen is a significant increase in the imprisonment rate; correct?---Correct.
So you’ve got a department that is facing, really, what you would describe as a deluge of incoming prisoners; is that right?---Correct.
A department that is then struggling, it would appear, both financially and logistically to deal with this onslaught of sentenced prisoners. Correct?---That’s correct.
Because more prisoners are coming into the system, we are dealing with more people of significant disadvantage: mental health problems, other social problems, literacy, numeracy. Correct?---Correct.
MR McAVOY: If I might just interrupt for a moment, I understand the live stream is down at the moment, and we’re not broadcasting. I don’t know whether that’s a matter about which the Commissioners - - -
COMMISSIONER WHITE: We will just pause for a moment, Mr Tippett.
MR TIPPETT: Thank you – thank you. I do appreciate it.
COMMISSIONER WHITE: Unless it’s lengthy, in which case we will continue.
MR TIPPETT: No. I propose, Commissioners, to address just a couple of points, but this appears to be an outstanding one because, of course, the witness has led with it.
COMMISSIONER WHITE: That’s alright. We will just wait until we get back up on stream. Thank you. In the interests of time we will stay here and feel free to chat amongst yourselves if you want to, rather than us adjourning. Thank you.
ADJOURNED [3.33 pm]
RESUMED [3.45 pm]
MR TIPPETT: Mr Hamburger, before we adjourned I was dealing with the imprisonment rate and I was doing so for the reason that you would agree, would you not, that the Department, the Northern Territory Department of Correctional Services, both in terms of youth services and in terms of adult services over those years, with an increasing imprisonment rate, has often been the hostage of government policy in relation to its failure to address those essential issues?---Yes.
Now, can I take you to page 40 of your report. And you refer to a number of matters in the Alice Springs Detention Centre. You go on to make some recommendation. And you see at page 40 under the heading Action Steps Needed?---Yes.
You go on to say that:
…ensure effective intervention are available for multi-problem youth and their families before they encounter the criminal justice system.
Now – and you go on to make further observations after that. I just want to ask you: how do you see the Northern Territory Department of Correctional Services actually doing that? It seems to be something that ought to be done prior to the department becoming engaged?---Well, that’s really one of the drivers of the recommendation about the – where I’ve said earlier that the government role and the way we deliver public services, including corrective services and family services to remote communities, the – the government needs to refocus its focus towards enabling and capacity building. And build – and through that process build the capacity of the communities to actually function better.
Now, you would have – although your report doesn’t seem to set out the previous reports that you’ve referred to, you would have looked at a number of reports that had been done over the years, 2012 to 2016, trying to address a range of issues concerning the imprisonment of youth in the Northern Territory as well as programs designed to achieve – reduce recidivism and to achieve an outcome in relation to that prisoner’s future. Is that right?---Yes.
And one of those is the – is the report of Heather Harker?---Heather Harker, yes.
Yes. And that was a report that was produced in July 2015. And she looked at, in particular, the approach of Corrections in terms of creating innovative programs. Is that correct?---I can recall her report, but I will accept what you say. I can’t recall the detail.
Alright. My point is that you – and I’m jumping now to the issue of work for the – the Sentence to a Job scheme?---The Sentenced to a Job program.
And the reason is that that is of course a program which was particularly designed to try and avoid and reduce recidivism rates?---That’s correct.
In fact, are you aware that that program indeed did reduce recidivism rates within the group of people who were – went through the program?---I remember being told that, yes.
And you make reference to that program in your report and you, at page 9 and page 76, if I can just direct your attention to page 76 of your report, you criticise to some extent at – you see paragraph beginning “The overemphasis”?---Yes.
Now, why do you say that there was an overemphasis in relation to the Sentenced to a Job scheme?---An overemphasis?
Yes. Those are your words. “The overemphasis on STAJ”?---I think – well, those words came about because there seemed to be a perception around that it was something like a silver bullet that could assist greatly in terms of reducing recidivism through getting people into employment. But it only – there were a number of restrictions around who could actually go on it, and there was a – we felt that whilst it certainly was a valuable program, there are other things about the criminogenic programs that are needed as well. I mean, getting work – getting work for somebody is not just the sole answer to making a law abiding lifestyle, so it really needs to be part of a suite of programs that’s offered. It’s certainly a worthwhile program. It’s really similar to programs in other states where we talk about work to release and that sort of thing. But there seemed to be a feeling that people were put on Sentence to a Job and there was some – and not as much emphasis placed on the need for criminogenic programs to address the reasons for their criminal behaviour.
Now, that program was described by Ms Harker as a groundbreaking program in Australia. Would you agree?---Not entirely, because, as I said, we’ve had what’s been known in other states as release to work programs where people have actually moved out of prison into hostels and gone on to release work programs, or indeed gone out on a daily basis from prisons into work.
Now, the – one of the criminogenic problems associated with getting people into programs is, in fact, literacy and numeracy?---Yes.
In fact, one of the problems associated with the Sentenced to a Job program is the fact that in the Northern Territory we have a very large number of people coming into the criminal justice system who simply cannot read or write English; is that right?---Yes.
They have no numerical skills; is that correct?---Yes.
And the problem that that brings about is the necessity of the system to try and address it by programs to raise literacy and numeracy skills?---Yes.
That is then, of course, captured in effect by the problem associated with people rolling through the system. So you have a program like Quick Start. Are you familiar with Quick Start?---Yes.
That’s a program associated with the endeavours to raise the literacy and numeracy skills of people in a very basic way, and a program designed to do so very quickly, because of the rotation of people through the system; is that right?---That’s right.
Lots of people on very short sentences. Correct?---Yes.
Now, that program is a criminogenic program of some significance; is it not?---Yes.
And indeed that has been in place, and was put in place in the years – I think it was about 2014. So what’s happened here is that there has been – and during this period, 2012 to 2016, you would be aware that the Department of Corrections has been significantly strapped for funding in relation to a number of these criminogenic programs that it has put forward as programs it wanted to undertake, but was unable to do so because of finance; is that right?---I understand that.
COMMISSIONER WHITE: Does – Mr Hamburger, do you know that or are you just agreeing with the proposition - - -
MR TIPPETT: Yes. I’m - - -
COMMISSIONER WHITE: - - - from Mr Tippett?---I know in general terms, Commissioner, that – and evidence we took from different people interviewed that they needed more money for programs in a general sense, and that resonated with us because typically that’s what happens in prisons. We don’t get enough money for programs.
MR McAVOY: Commissioner, I am –
MR TIPPETT: I will cover another area.
MR McAVOY: I will just flag I have been informed by my learned friend that he is proposing to go to another area, but the last round of questions was all related to adult corrections and I was hoping that the connection would be made at some point.
MR TIPPETT: Yes. I was referring to corrections generally, both youth and adult corrections. Did you understand me to be referring to both?---I didn’t, sorry. I was thinking of adult prisons when you were talking to me. Sorry.
Alright. Then could you address the youth justice area, or juvenile justice position, in terms of answer to my question. Would you agree that it translates from adult to juvenile?
MR McAVOY: I object to the question. That doesn’t – the questions – the line of questioning was about Sentence to a Job and - - -
MR TIPPETT: Alright.
MR McAVOY: - - - the Quick Start programs, which were adult programs. I’m not – I don’t understand there to be youth detention equivalents. The point might be made some other way, but I can’t see how it can be made from that.
MR TIPPETT: Yes. I will.
COMMISSIONER WHITE: And my understanding was, from previous questions that we have had of Mr Hamburger, it’s educational programs that have been the focus rather than working to a job. Or preparation for apprenticeships and things of that kind.
MR TIPPETT: Yes, what I’m trying to do, Commissioner, is put – if we are going to have a holistic approach then each of these things must be dealt with together.
COMMISSIONER WHITE: Well, given that it’s 5 to 4 I’m sure that Mr Hamburger would like to return to wherever he would want to be, which may not be Darwin.
MR TIPPETT: Yes.
COMMISSIONER WHITE: We might need to perhaps just be a bit more focused in the - - -
MR TIPPETT: Alright. Well, I certainly will.
COMMISSIONER WHITE: Because the tenor of the report, so far as it relates to youth justice, is a different emphasis than that which is in the adult prison. We understand that one folds into the other, but I think that’s probably not really where you’re going. You really want to focus on the disadvantage of the operational people in managing government policy - - -
COMMISSIONER WHITE: - - - when they don’t give them enough money to all the things that Mr Hamburger has said should be done. I mean, that’s the line of your question, isn’t it?
MR TIPPETT: That’s effectively it, Commissioner, yes. Thank you. Look, I will move from that, Commissioner, to this.
In terms of the ability to wind out programs in the youth justice area, can I put this proposition to you: that in 2014/15 there were 300 youth receptions on remand in Darwin, and 153 in Alice Springs, serving an average of 18 days in Darwin and 23 days in Alice Springs. These 453 receptions related to 227 individuals, with approximately three quarters of youth released to bail either breaching bail or committing new offences. It is very difficult to plan and provide appropriate offending and provide – plan and provide appropriate offending behaviour and therapeutic programs for remanded individuals, as detention centre staff do not know how long they will be detained or what the outcome of their charge will be. Would you agree with that?---I do agree with that, yes.
Now, how can that be remedied? How can we address this problem which is ever increasing, because of increasing numbers of people coming into the system, of rotation of individuals providing proper plans for them and putting detention staff in a position to be able to plan?---And it can’t be remedied in the current structure of the system. And there have always been unreal expectations put upon Corrections to rehabilitate people, and you quoted before the illiteracy rates, and that’s – the Northern Territory would be worse than Queensland, but I know Queensland, we have 40 per cent of our prisoners are functionally illiterate. And yet the sentences are often quite short and there is a high churn factor. So you can’t possibly teach people to read and write in the short space of time that we work with them. So the current system can’t deal with that, in my view. And that’s why we are proposing this alternative model.
Now, is the alternative model you proposed – you are proposing, is that evidence-based?---I believe it is. It’s – the model we are proposing is somewhat unique in that you won’t find that model anywhere in the country, but the components that we are bringing together are evidence-based and, indeed, if you go back some years – and this would be in the 1990s – the Northern Territory had, in my view, an extremely good program which took a holistic approach to the criminogenic and educational behavioural programs. It was at a place a couple of hours drive south of Darwin, and I was taken there.
Wildman River?---Could well have been, yes. Where they had – and I can describe what happened there, but the situation with the young people was that in the classroom and in the actual facility the teacher – the time I was there – had a brick. And there was about a dozen, I think, young people at the facility. And it worked on a basis where there was some instruction, no more than 20 minutes, and then they went out and actually were building a brick barbecue outside. And they would do that, then there would be some recreation. There was a very interesting day – group
day of activities. But when he had the brick in front of the class he would say things like, “What colour is this?” And the – get the children would say brown. So then he would say, “Well, how do we spell brown?” So they would put – write that on the board. And then would say, “Do you know what a right angle is?” And he would explain the right angle on the brick. And so he was into weaving maths, spelling, and all of that, colour, with this working with this brick. And then they actually took the brick outside and they understood then, when they started to put the concrete down and were building this barbecue, so it was a very hands on, practical experience of mixing instruction with doing things. And likewise they had a vegetable patch and they were doing similar things like that. So it was a – to me a very interesting way of – and the children obviously were enjoying it, because it wasn’t a long classroom session. It was short sharp things, moving between different activities. So – and that was at – basically in a community, I guess. I don’t – well, not entirely, because some of the children came from the gulf, I think, that were in that class that I actually attended. But I am just giving that as an example, that if you had these outstations where you could actually mix education with activity, with work training, whatever it might be, in a way that children enjoy it, it’s a better way than funnelling in and out of the detention centres. And I think we mentioned in our report about the teacher who would – if it’s not in the report it was told, we talked about the structure of the classes in the detention centre where different age groups were put together based on security and things like that, and teachers talked to us about when the child was discharged after a short time, like you said, they put the books aside with their name on it because they knew they were coming back. So, I mean, it’s a pretty dysfunctional system at the moment, and that’s why we’ve got to look at something different.
Now, is it your view that purpose built detention centres for young people should be – should not take place or be built, or is it your view that purpose built detention centres for young people have a place in addition to other outreach programs?---I think the issue is around the word “purpose”. What is the purpose? Now, I would see it that the system has a variety of needs and you would have a variety of options. And I think as I said earlier, there undoubtedly is a need, probably, in the major areas of Darwin and Alice Springs for a purpose built facility with the purpose of people, young people who have got special needs that might come here, for particular treatment or whatever. If the outstations have a different purpose, so we would have a range of purposes, but the philosophy for each of those would be set always based on a therapeutic base.
And in terms of remand centres - - -?---Yes.
- - - have you a view as to purpose built remand centres for youth?---I do. And it comes back a bit to what I said earlier about the sentencing process. It is a very frustrating situation, I would believe, for young people to be kept on remand in suspense for a period of time. In many cases, in my experience, they get released on the basis at the end of that time, or time served and, “Now you can go on to, you know, take that into account.” And you go into a community option. I think if the sentencing process was constructed for young people, on the lines that I talked about
with that European model where full holistic consideration of their circumstances and then an appropriate sentence done as soon as practicable after their original arrest, would be far better than people languishing in detention centres for a period of weeks or months waiting to know the outcome.
Are you aware that the remand turn around in the Northern Territory is about eight days at the moment?---Is that right? Well, that’s pretty quick.
And, secondly, has it come to your attention that there are many juveniles or young people who would be eligible for bail but have no safe place to be bailed to?---That wouldn’t surprise me.
That a centre enabling people to be bailed to a – young people to be bailed to a safe place, that is a low security type facility, would be of value, would it?---It would be, definitely.
And, equally, a lot of the people who are seeking bail and who might otherwise have it simply have – or come from communities that are a long way away and the problem, or the fear is that the risk if they breach bail, of course, the system simply doesn’t take into account distance, the tyranny of distance?---That’s right. And that’s a gap across Australia, is what I would call – as I mentioned, I think, previously: the community custody option, where it’s not a detention centre, it’s a community custody option. It could be a family that’s prepared to take people – a person in under certain circumstances, it could be a supervised boarding house or something of that nature rather than a juvenile detention facility.
Equally, the Northern Territory Department of Corrections is hostage to government legislation concerning bail and changing emphasis in relation to bail, changing the position that bail – one is entitled to bail rather than having to prove that you should get it?---Yes, that’s correct.
So - - -
COMMISSIONER WHITE: Mr Tippett, I don’t really like to interrupt you too much, but I’m not quite sure how this line of questioning relates to the interests of Mr Middlebrook.
MR TIPPETT: Because of the difficulty, Commissioner, of the department dealing with juveniles on bail, or at least being eligible for bail, and because the significant washing machine component - - -
COMMISSIONER WHITE: Yes.
MR TIPPETT: - - - in the system relates to bail and often people not being able to access bail because of their circumstances.
COMMISSIONER WHITE: Yes. Well, we do understand that.
MR TIPPETT: And I – so I don’t need to go any further down that path.
COMMISSIONER WHITE: Alright. I don’t think that, perhaps, you’re making the best use of Mr Hamburger’s expertise while he’s here in the witness box for your purposes. That’s all I was querying.
MR TIPPETT: Yes.
COMMISSIONER WHITE: You are going to get to that.
MR TIPPETT: Yes.
Now, did you have access to the Northern Territory Department of Correctional Services reports over the years 2012 to 2016. That is the annual report?---I personally haven’t seen those.
No?---Some of my team members might have, I’m not sure.
And you would agree that at least the Northern Territory Department of Correctional Services, certainly over those years and continuing, is dealing with a highly complex situation from a range of perspectives. Is that right?---It’s a very complex situation in the Northern Territory, unique in Australia really, in many ways.
Unique in Australia. Yes. Thank you. I have no further questions.
COMMISSIONER WHITE: Yes. Thanks, Mr Tippett. Now, we need to have a bit of an audit here, Mr McAvoy, about how long people are going to be.
MR McAVOY: Well, Commissioners know as well I do how difficult it is to get estimates, but I’m assured that my learned friend from the Northern Territory Government only has a limited number of questions. Mr Harris, who is yet to come, has some questions. But I understand that there’s some issue about which he and I might need to address you, Commissioners. And it might be something that needs to be done in the absence of the webcast.
COMMISSIONER WHITE: We will just put that to one side for a moment. I’m trying to get an indication of how much longer it’s anticipated that Mr Hamburger will be - - -
MR McAVOY: Well, perhaps I will ask my – your Honour could ask my learned friends directly.
COMMISSIONER WHITE: Yes. Alright. Mr Harris.
MR HARRIS: I understand there may be some disagreement between Mr McAvoy and I on one topic, but I would expect to be less than 15 minutes and I would hope 10.
COMMISSIONER WHITE: I won’t keep you to something as tight as that, Mr Harris. But good, thank you.
MR HARRIS: Fingers crossed.
COMMISSIONER WHITE: I have got my ankles crossed about how tolerant I will be, too.
MR O’MAHONEY: I can’t promise to be quite as tight as that, Commissioner, but I can indicate probably no more than 30 minutes.
COMMISSIONER WHITE: Okay. And is there anyone that was scheduled to ask a question? No.
MR McAVOY: Only re-examination, of which I have none at this point, I can indicate.
COMMISSIONER WHITE: Alright. Now, could – just putting to one side your issue with Mr McAvoy I’m presuming, Mr Hamburger, you would prefer to be able to leave today?---Yes.
Rather than – because you know we have a commitment tomorrow?---Yes.
Which would make sitting tomorrow, at least in the afternoon, rather than the morning. So unless people seek to persuade us otherwise, we would prefer to sit on to finish this witness today. Now, are you comfortable? I – you would probably not mind about that. What about you Mr O’Mahoney?
MR O’MAHONEY: Certainly. That’s no problem, Commissioners.
MR McAVOY: That’s my preference, Commissioners.
COMMISSIONER WHITE: Alright. Just in case people have to call their offices or something, why don’t – why doesn’t Commissioner Gooda and I leave for a few minutes while you talk your matter through with Mr McAvoy.
MR HARRIS: I think we have agreed to disagree, Commissioners. So I think the – it will probably be required .....
COMMISSIONER WHITE: I see. Alright then.
MR HARRIS: What I had in mind is getting to a point, which will be an obvious point, and I will in fact invite the witness not to answer the question and anticipate my learned friend leaping to his feet to object, and then we can ventilate the dispute then.
COMMISSIONER WHITE: Right. Thanks, Mr Harris. That will be exciting.
MR HARRIS: Just building anticipation, Commissioners, to when it’s - - -
COMMISSIONER WHITE: Yes. It’s something to look forward to when we are sitting after hours.
<CROSS-EXAMINATION BY MR HARRIS [4.11 pm]
MR HARRIS: Mr Hamburger, I represent - - -
COMMISSIONER WHITE: Perhaps – sorry, we better make sure that we keep getting the transcript and so on, even though we are going on a bit. Yes, thanks.
MR HARRIS: Mr Hamburger, I represent John Elferink, who at the time of the retainer of Knowledge Consulting was relevantly the Minister for Corrections and the Attorney-General for the Northern Territory?---Yes.
And that situation changed later in July 2016. Can I just deal with the first topic, and one that for this purpose I wonder if your statement at paragraph 20 might be shown to you. In that paragraph you make reference to seeking the business case in relation to the construction of the new Darwin Correctional Precinct, and noting that this was denied to you on grounds of cabinet confidentiality?---Yes.
Allowing for that as being a refusal of information, apart from that in the course of your review is this correct: no restriction was placed on any inquiries that you made as part of your root and branch review?---Yes, that’s correct.
There was no limitation on any personnel whom the review team might have wished to have interviewed. No one was denied to you by the government or the department?---No, no one was denied. That’s correct.
There were no geographic restrictions placed on the review – geographic restrictions placed on the review team in where you could go?---No.
What you could look at?---No.
In particular, you had unrestricted access to the correctional facilities in the Northern Territory for the purposes of making the assessments that you needed to make as part of your review?---We did.
You list in your report a number of people whom you – or the review team interviewed. That included the then Minister for Corrections, John Elferink?---It did.
And it’s correct, isn’t it, that he cooperated fully in relation to the time that he spent with the review team?---He did.
And, indeed, expressed himself to be supportive of the root and branch review that your team was conducting?---Most definitely.
Yes. And by the time of the Four Corners broadcast on 25 July 2016, this would be right, wouldn’t it: your root and branch review had effectively been completed, but your report was not in its final form?---That’s correct.
Your report is a report of some 200-odd pages and it was finalised and delivered a few days later?---Yes.
On the topic of your final report, you note at paragraph 55, if we might go to that, that one of most significant recommendations that you made was the creation of the new statutory authority. And I don’t want to go into the detail of that. Noting that its name to be the Northern Territory Adult Corrections and Youth Justice Services Commission. And you note in paragraph 55 that that wasn’t in the advanced copy of the report that the Chief Minister received on 27 July in advance of your meeting on the 28th?---That’s right.
Yes. And you told us about that. That was something that was – your thinking crystallised about that following viewing the ABC Four Corners program. But it wasn’t in the advance report; correct?---Correct.
Would this be right, though: the advance report was a document of similar size, that is substance, to the 200-odd page final report that you delivered on 31 July?---I think that’s right. Yes.
I just want to ask you a couple of questions about at what stage the report had reached prior to you seeing the ABC broadcast on 25 July and coming to a crystallisation of your final recommendations, which included the statutory authority. For that purpose I wonder if you might be taken to paragraph 23 of your statement. Now, I’m just going to use your statement because you do reference the relevant pages of your final report in the statement, and so it’s a quick way of doing it. Paragraph 23 talks about your lack of faith in large correctional centres, that the centralisation in large locations like that has a particular impact on indigenous offenders who are often located very long distances away from their traditional lands?---Yes.
Yes. And then in paragraph 25, this is where you introduce in your statement – and it’s cross-referenced in the body of your statement to the report – the holistic approach which is what you advocate - - -?---Yes.
- - - in terms of what the future might hold for the Northern Territory?---Correct.
Yes. Now, a couple of things about that holistic approach that I just wanted to touch on. The healing and rehabilitation centres that you refer to in paragraph 25, subparagraph (b), that draws on both the Canadian experience that you refer to in the
report as well as what’s already in place in the Northern Territory in the concept of work camps which have the potential to be perhaps developed further - - -?---Yes.
- - - into these healing centres to which you refer?---That’s correct.
Right. You note that that is to be undertaken by way of a PPP model. That is, a public-private partnership?---Yes.
And the – you make reference to special purpose vehicles where there would be government and the private sector partnering in relation to each of the ventures?---Yes.
And I wanted to just ask you quickly, paragraph 25(d), in relation to each of those special purpose vehicles there would be enablers. Now, I just want to understand about enablers. As I read that paragraph, they might come from government, they might come from the private sector, or they might be a partnership between the two?---Yes.
And those enablers would be what would draw into themselves the other aspects of community services to which – about which you’ve given evidence; is that right?---Not sure if that’s right.
In fact, I put that badly. I will try again. The – it’s the – the Aboriginal enterprise itself would be responsible for coordinating and directing into itself - - -?---Yes.
- - - those services which are more broad than Corrections, but which will then give that holistic community focus in each of those locations?---That’s correct.
The enabler would be either the private entity or a public-private partnership which would assist the Aboriginal organisation to achieve efficiencies and achieve outcomes in that operation?---That’s correct.
Right. And then, just touching on paragraph 29, you again are referring to the PPP approach, paragraph 30 is referencing the healing centres. Now, my question is this: that concept, which is – would you agree – the other central component of your report. One is the creation of the statutory authority, but the other for the way forward is, to use a very - - -?---Yes.
- - - general description, the decentralisation of the - - -?---Exactly, yes.
- - - process into the healing areas. Was that part of the report prior to 25 July 2016 or was that also added in after the Four Corners broadcast with the statutory authority recommendation?---No, I think – well, my recollection that that was already in the report.
Okay. Now can we just scroll forward. Commissioner, I realise I’ve got four minutes.
COMMISSIONER WHITE: I’m not looking at the – I’m not looking at the clock, Mr Harris.
MR HARRIS: I did have my fingers crossed. Paragraph 59, you refer in your statement to the statutory authority, which was a recommendation that came in right at the end of the review process, could drive the approach referred to in paragraph 25 of the healing and rehabilitation centres. So that was something that, once you had come to the view that the statutory authority was appropriate for a recommendation, that was then tied in with what was already a recommendation in your report for the decentralisation process?---That’s my recollection, yes.
Thank you. Right. Now, can I just return to your first involvement with the Northern Territory Government, and you don’t have to go to this, but you note it or refer to it in paragraph 6. And I think it was described yesterday as a cold canvas. You made contact with – and if you didn’t say that, I perhaps thought it, but you made contact with the Northern Territory Department of Corrections in February of 2016. And, as it were – or at least made them aware of the service that your company might have been able to provide to it by way of consultancy?---That’s correct.
And that was, would you agree, for – because you saw the potential commercial opportunity for Knowledge Consulting in the conduct of its business to do some business in the Northern Territory?---Correct.
And, of course, it was successful and led to the retainer for the root and branch review?---That’s right.
Yes. Could I ask you to go to paragraph 28 of your statement. Now, paragraph 28 of your statement cites as the example the experience that you have in Queensland in relation to the Mount Tabor project, as to which there is a PowerPoint presentation at the back of – attached to your statement?---Right.
Right. And you refer in the fourth line – the third line by – the traditional people in that area and your company have founded – is an enterprise founded on the model that I’ve just referred to, being the PPP model for a remote area, delivering those sorts of services and a healing location, which is essentially the recommendation that’s been made in the review report by Knowledge Consulting. Now, that company I think is called Holistic Justice & Community Services Proprietary Limited?---That’s the company that, to this point, has been developing the Mount Tabor.
Yes?---Yes.
You say in your CV, which is attached to your statement, that that’s a start-up company?---Yes.
And a 50 per cent shareholder of that company is Knowledge Consulting Proprietary Limited, isn’t it?---Right, yes.
Yes. And the other 50 per cent shareholder is a company called Initiative Capital Proprietary Limited?---That’s correct.
Now, is that another investor or a corporate vehicle for another investor?---No. Well, I will just explain what it is and you can – I’m not sure what you mean by “investor”. The – we formed a commercial relationship with Initiative Capital, because in developing this Mount Tabor project we decided to approach the Queensland Government as a market-led proposal. Now, there’s a particular initiative in Queensland about encouraging private sector to produce market led proposals to deliver government services more effectively than the public sector can, and if you have a unique model that you present and it passes the uniqueness test and it passes the test of government need, well, then you have a chance to be awarded that project. So we felt that within our company Knowledge Consulting we didn’t have the necessary business analysis skills to actually put that project together, so we linked up with Initiative Capital because we knew one of the principals there and said, “Look, could you help us with this project?” So between us we formed that joint venture project.
And that joint venture is not a philanthropic project?---No – no.
It’s a commercial entity?---A commercial entity.
Yes. Would you agree with this proposition: that if the Northern Territory Government would adopt the recommendations in the Knowledge Consulting report for a holistic approach with community empowerment, this would present a commercial opportunity for Holistic Justice & Community Services Proprietary Limited, because it’s already involved in that space in Queensland?---That’s exactly right. Yes.
And presumably if the Northern Territory Government adopted those recommendations of Knowledge Consulting and looked to try and establish similar operations to Mount Tabor in the Northern Territory, Holistic Justice & Community Services Proprietary Limited might well look to take advantage of such commercial opportunities?---That would be a possibility.
Yes. When you delivered the Knowledge Consulting report to the Northern Territory Government on 31 July, did Knowledge Consulting make a disclosure that it had a 50 per cent interest in a commercial operation which stood to gain from the adoption of the principle recommendation in the report?---I had given to the Commissioner early in the review a report that we had prepared for the Queensland Government on this model, and I explained to the Commissioner the role that we had in that, and indeed Holistic Justice was covered in that with Initiative Capital, etcetera. So I was well
aware of the potential of conflict of interest in that regard and I made that known to the Commissioner and I said, “Look, this model is likely to be transferrable. We have done this in Queensland.” So I had made no attempt to conceal that.
So the conflict was cleared, as it were, orally, rather than in the documentary material which is - - -?---Yes. It’s not covered in this report. No.
Mr Hamburger, I’m going to ask you some questions on behalf of the Northern Territory Government?---Thank you.
Firstly, sir, it was the case that when you handed down a report of some hundreds of pages, to your memory were there roughly 172 recommendations in it?---172 is the figure, I think.
So is it the case that some, to your mind, were higher priority items than others?---Yes.
And is it the case that one of the higher – one of the highest priorities, looking at your report when you handed it to government, was to remove youth justice from being within the remit of the adult correctional space?---Yes.
And was the reason for that because there are philosophical differences between those two systems?---Yes.
And there are also organisational differences between the two systems that are not well suited to them falling within or under one umbrella?---Of adult corrections, yes.
Yes. And the position was the status quo was, at the time was that you prepared and finalised your report, that they both effectively came under the same – under the direction of the same Commissioner, correct?---That’s right, yes.
And one of the key proposals you made was that – and I think, sir, you will correct me if I am wrong, was that what should be done was to have separate lines of reporting to the same Commissioner, one on behalf of the youth justice system, and one on behalf of the adult correctional space?---That’s correct.
And, sir, are you aware that since your report was handed down, the Northern Territory Government has in effect put in place a different model, but to the same effect?---Yes.
And are you aware that that model involves the youth justice space – that the system dealing with youth justice and youth detention specifically are now falling within the remit of an entity called Territory Families?---Yes, I am aware of that.
And you’re aware that Correctional Services falls exclusively within the remit of the Department of Correctional Services?---Yes.
You would accept that that is a positive development that has come from the handing down of your report?---Yes, I accept that.
And I take it you would embrace that as a positive step forward?---It was a step forward, yes.
And, sir, when you handed down that report with 172 recommendations, you were aware that some could be moved upon fairly quickly?---Yes.
Others would take a little more time?---Yes.
And some would take quite considerable time?---Yes.
And those that are in that latter category, you appreciated, would take some considerable time because there was a need for, amongst other things, community consultation?---Correct.
As well as consultation with specific stakeholders who had an interest in the space and achieving best possible outcomes within the space?---I agree with that.
One immediate proposal, and I will put it to you – I will ask you to comment on this – that you made – and I think it might be recommendation number 1, was for the appointment of a – was for the government to enter into a contract with the then interim Commissioner on an ongoing or full time basis; correct?---Yes, I did. Yes.
And can we take it, from that being the first recommendation you made, that that was in your mind a very important recommendation?---It was. Yes.
And can we take it that that was in part a vote of confidence in the work being done by – that you had seen being done by the then interim Commissioner, Commissioner Payne?---It was.
And can we take it as well that that was a reflection of your desire to put in place a system that removed some of the instability and focused on delivering both stable and certain outcomes within a system that had been the subject of some flux for sum
some years. And, sir, is it the case that in preparing your report you came to work quite closely with Commissioner Payne?---Yes.
Could you tell us, did you find him constructive to work with?---Very constructive.
Did you find him receptive to ideas you had?---Yes.
And did you find him accommodating to requests you made for information or access to certain persons?---Yes.
And was it in that context that you commended him as an appropriate person for government to retain on a full time basis as Commissioner?---It was. And if I could add, what we saw as a team – and be the unanimous view of our team – very impressed with the – his approach to governance, and to setting up – moving on the strategic plan and the various structures he was putting together, his communications style, and the way he was promulgating his vision for the organisation, and we knew that he had come in there as – I hadn’t known Mark Payne until I turned up here, and we knew he had come in as a temporary appointment, and we knew that the department had suffered some dislocation from what had gone on before him – he arrived. And given the obvious leadership and management skills that impressed us, we felt that for the stability of the organisation it would be essential that he continue in that role.
And, sir, from those close communications and the work you were doing with Commissioner Payne, were you also made aware that initiatives were already on foot and underway at the same time as you were preparing your report?---Yes.
And was it the case that Commissioner Payne was grateful to have you as a sounding board and someone to work with on initiatives he had already identified as potentially a way forward?---Yes.
Sir, I won’t take you to the balance of the recommendations that are made in your report, but can I take it that you’ve reviewed the statement and annexures to Ms Kerr’s affidavits or statements?---Is that the one we went through - - -
It is?---Yes.
And have you had a chance to look at the – Commissioner Payne’s statement and annexures?---In the break, yes, just at lunchtime was it, I think I had a chance to have a look. Yes.
And would you accept – sir, we completely accept you haven’t had a great deal of time to absorb those documents in detail, but would you accept that they point to a government that is undertaking a fair bit of action in this space, and indeed has done so since your report was handed down?---I totally accept that. Yes.
And would you accept that a lot of the action that is being undertaken by this government presently, and a lot of the foreshadowed action taken in this youth justice space, directly touches upon many of the big ticket items that you addressed in your report?---Yes. I agree with that.
And would you come commend the government for that?---Yes.
And so could I ask you this: in relation to the work you did in preparing your report, I just want to ask you a few brief questions about that. I’m mindful of the time. Is it the case that the bulk of your report was prepared – when I say the bulk of your report, the writing, the thinking, the analysis, and so on, is it the case that the bulk of that was done between the first visits you had to the two youth detention facilities and the second visits?---The second visit that occurred late in the period. Yes, that would be correct.
That’s right?---Yes.
As it was, there was one single visit to each of the detention facilities early after you took over the role; correct?---Yes, that’s right.
And then right towards the end of your role there were two – there was a further visit to each of the facilities?---Yes.
Now, that second visit was fairly spontaneous, wasn’t it?---Yes.
It hadn’t been planned?---It was unexpected.
And was it the case that your plan going into, say the week of 20 July 2016, was really to work up, finalise and submit the report based on, in part, the – or in large part – the single visit to each of the Darwin facility and the Alice Springs facility?---That’s correct.
And really was it the case, sir, that when you went to each of those facilities for a second time after the meeting of 28 July 2016 with, amongst others the Chief Minister, that really that was about not working up the report, but trying to provide the Chief Minister with the degree of comfort that he had requested at that meeting about whether or not youth detainees would die overnight?---Yes, that’s correct.
And, sir, is this the case. Can I go through with you in a little bit of detail the visit to the Darwin Correction Centre. Does it accord with your memory that you were there for about – and when I say the visit, I mean the initial visit, sir, to the Darwin Detention Centre, which occurred on 5 May. Does that accord with your memory?---I can’t remember the date. I’m sorry.
Well, I put it to you that it was, but not much turns on it. Does it accord with your memory that you were there for a period of about one and a half to two hours?---At the Darwin Correctional Centre?
Yes?---I would have thought it was a bit longer than that.
I’m sorry, I want to be clear, the Don Dale, the youth facility in Darwin?---The youth facility.
.....?---Sorry I’m thinking of the Darwin Correctional Precinct.
No. Apologies?---So the Darwin youth facility, the Don Dale.
Yes. Does it accord with your memory that you were there for one and a half to two hours?---That – that – that could be right. Yes.
And does it accord with your memory that during that time you were largely engaged of a walk through of the centre of the facility?---We spent initially a time in the manager’s office and then walked through the centre. Yes.
And the person who walked you through the centre was a man by the name of Mr Victor Williams?---That’s correct.
And he was, I think you understood him to be an Aboriginal man who was working within that facility; correct?---Yes, that’s right.
And he was the superintendent at the facility?---Yes.
And during that time is it the case that you didn’t have detailed interactions with detainees?---Yes.
It the case that you didn’t conduct any significant interviews on that visit with staff members who were present?---That’s correct.
It was more in the nature of a meet and greet?---Yes. And looking at the facilities.
And is this the case, sir, that when you reflected yesterday in your evidence about there being a lack of laughter, a lack of sports activities, a lack of organised activities, I think you used the words a lack of repartee between the staff members and the detainees there, and when you talked about a lack of interaction you are really talking about an impression that you gleaned in a very short period of time; correct?---That’s correct.
And, really, that – that impressionistic evidence, if I could put it that way, of yours was not made good by you – and this is no criticism – that that impression you gleaned in say the 90 minutes or the 120 minutes you were there about such things, you didn’t revisit the facility to shore up that impression?---When we went back the second occasion? No.
Well, no. And you weren’t asking people – to the extent that in the 90 minutes or so that you were there, you didn’t see sporting activities, you didn’t undertake, for
example, a detailed investigation of whether there had been any sporting activities undertaken by the children in the last week?---No – no – no.
And you didn’t undertake any audit of whether there were any planned that afternoon or tomorrow or indeed in the coming week, did you?---No.
And, sir, this is the case, isn’t it, that really that evidence must be accepted for what it is: an impression gleaned in a pretty short period of time?---Exactly. And that impression was – and I agree with what you’re saying, but just to give a little bit of elaboration, when we went up to the secure block the young people had – they moved them away from – and I watched the interaction briefly, very briefly, with those young people as they were put into their cells – so we could walk through the yards and so forth, and – but that’s it. It was a very short time.
And I think you gave evidence yesterday, correct me if I am wrong, sir, that on that visit, you only identified one worker or one youth justice officer worker at the facility who was a woman?---I don’t think I said that.
Well, then I take that back. Did you see any women working there?---I didn’t see any women working there.
No. And did you undertake any sort of analysis of how many women were rostered on that week or that day?---I didn’t personally, but I don’t know whether Ms Downes did.
Sir, are you aware of the difficulties that not just the Northern Territory Government but governments this country wide, have faced with both attracting women and retaining women to work in youth justice facilities?---I’m aware of that.
Can you tell us a little bit about that awareness. What do you know about that?---Well, in Queensland we had the same problem with – in Adult Corrections, when I was in charge of when we were – so it’s a well known difficulty, and we also – in relation to the salary levels of – in relation to the salary levels of juvenile justice officers, we were looking at advertisements for staff to see what the differences in salaries around the country were, and we noted in respect of the youth justice officers that there was a physical test of people to become a youth justice officer, having to do chin ups and push ups and run and so forth, and we just – we haven’t investigated that, but we are just wondering whether indeed some of the recruitment practices might add to that restriction. But it is a difficult task to get women into that business.
And sir, told you that there are now 10 women working or within the roster that work at the Don Dale facility in Darwin, is that news to you?---It is news to me. Yes.
And do you regard that as a positive development?---I do – I do.
And if I told you that at the time you visited there were eight women rostered on to work at that facility, would that come as news to you?---Well, it would because we didn’t see any in that visit.
But you accept, sir, that in that visit of 90 minutes to - - -?---Yes. I - - -
- - - 120 minutes - - -?---I accept that.
- - - one can only glean what might happen the next day, what might happen the next week, and indeed what might happen the next month; correct?---Yes.
Sir, turning then to your – the model that you’ve proposed, I just want to ask you some questions around that. This healing and rehabilitation centre model. That is based on work you’ve been doing in Queensland; correct?---That’s correct.
And you’ve indicated – can I ask – that work, is that specifically adult system-related or does it also have a youth justice component?---It’s – it has a youth justice component, but we are more advanced with the adult than we are with the youth justice.
Can you tell us just about the difference in progress of the two components to this work? Where is the youth justice initiative at in Queensland?---Okay. We’ve got two – two potential options. One is the Quandamooka people, who have traditional land on North Stradbroke Island which is just off the coast from Brisbane. They and I have been in discussions with Youth Justice Queensland about the potential option for a program on north Stradbroke that may have a custodial component as well as perhaps a community component where young people might stay with approved community people. And it would be for young people from North Stradbroke as well as from the nearby coastal towns of Wynnum, and Cleveland, and Deception Bay. I have had a presentation of the board of the Quandamooka people, I’ve had discussions with youth justice about that, but I’ve been – but we haven’t progressed it much - - -
Sir, thank you for that answer. In your statement, sir, and I will just quote briefly from it, you indicate that where the work is at presently, is that there has been a passing of what’s called a Queensland Government threshold test?---Yes.
And then you say that options are currently being investigated for a capital raising to develop the investment grade business case?---Yes.
Can you tell us about that. What is – when you say capital raising, who is the capital to be raised from, and when we talk about investment grade business case - - -?---Yes.
- - - are there any workings to that end that the Commission would be able to see?---Well, I will tell you about it so you can decide then what you need to know. We have invested a lot of our time and actual money in developing the Mount Tabor
model as well as two associated – a model associated with that in South East Queensland, involving Yugambeh people, near Mount Barney on the border, Murray watch, who are a group that operate a hostel, in Brisbane and the Ngugi people that have a property up near Beerwah, north of Brisbane. And we have developed a concept of where we have a good idea of the model, the Aboriginal people have agreed to provide land and also to operate the special purpose vehicles that you’ve heard about. We approached the Queensland Government with the market led proposal and our plan was to document the full costings of that model, right down to a daily cost per day for people that would come into the system. We are working on the basis that currently it costs Queensland about $310 a day for adult offenders in Corrections, and we’ve been – we believe that we can probably come in with a potentially lower cost, and provide a more effective service. So - - -
Can I just stop you there, Mr Hamburger. Just on that cost question, because we might save a bit of time. I was going to ask you whether there had been a costing of the proposed model in Queensland. Is it the case that there is a projected budget in terms of cost profile?---I’ve got a cost, not finalised. No.
No. Have you got a rough idea what the cost is?---A rough idea, yes.
And can you talk to that idea or – is really that a two hour conversation that no one here wants to start?---I can just give you a quick idea where we are at. I think on – and these are very early costings, but if we had something like in the order of 54 prisoners in this model, I think the cost, top of my head now, somewhere over $11,000 a day on the government costs. We have been costing up our figures at this stage, and I think we’ve got to a point of around 11,000 without including some services such as some of the health services and some other things. And that’s still being gathered. So we are in the ballpark of coming in potentially below, but the discussions I’ve been having with Corrections and with Treasury is that even if our costs go up to the government’s costs, or even a little more, depending on what we are doing in recidivism, if we can reduce recidivism that’s an extra benefit for government. So all of that has got to be modelled yet. And we are not finalised. And the extra capital raising we are talking about there is we approached the government with our proposal and asked for them to contribute some funds into a public-private partnership for the SPV, and become a shareholder in the SPV, so they would invest in it to actually finish the business case. Now, that’s where we hit a stumbling block in a sense that under the Financial Administration Act in Queensland it is not possible for the government to invest, unless they have a full business case.
Can I interrupt you there, Mr Hamburger, in the interests of time by asking you this: have you undertake any equivalent costs analysis of this model in the Northern Territory?---No.
And so you wouldn’t be in a position to comment on whether or not the cost profile of this model, as conceived in Queensland, could differ wildly in the Northern
Territory, having regard to its own unique geographical landscape; correct?---It would be – I don’t know if it would be wildly, but there would be differences.
And they could be material; you would agree with that?---I would.
And really a lot of work would need to go into ascertaining what the costs of this model would be in order to undertake the sort of cost benefit analysis that one would or ordinarily expect. You would accept that?---I would accept that.
Would you also accept that this model would involve necessarily attending to the mental health needs of detainees, the drug and alcohol service needs, the both general and specialist medical service needs of detainees in a whole lot of remote locations?---Exactly.
And you could imagine that there are – there could be quite a considerable cost burn burden that accompanies the need to meet all of those needs in remote varied locations. That’s correct?---That’s correct.
And would you also accept, sir that – take it from me that there is likely to be information put before the Commission that it has been difficult to, for example, attract and retain qualified mental health specialists in a place like Alice Springs. Would that come as news to you? In your own work have you - - -?---No, that’s not news to me.
And, sir, it wouldn’t, in that context, be surprising to imagine a world in which it would be incredibly difficult to attract the kind of specialist medical services, and personnel equipped to deliver them, to even more remote locations. Would you agree with that?---It would be difficult. But I would like to make a comment if I may. But go on –
Certainly?---I was interested in seeing – we talked about earlier, Dr Boulton, I think it is who put in a proposal for the Kimberleys, and that seemed to be very much like what we were talking about. And he was talking about providing services – or he’s developing a similar approach to the model that I’ve just described to you for services in that relatively – which I think – I don’t know the geography that well, but it’s like a pretty remote area. And the things you were raising are all difficulties and challenges but in the co-design I would be surprised if somehow we couldn’t come up with something that would work.
And one thing I think you would agree would need to be done before this – before any such model were rolled out generally would be adoption of a trial or a pilot - - -?---Pilot projects.
- - - facility?---And that’s how we are looking at it in Queensland.
And do you view that as important to, I guess, building public confidence in the model?---Yes, exactly.
But also building institutional know-how in terms of running the model and ensuring it achieves the outcomes you have spoken about?---That’s the capacity building component I’ve spoken of, yes.
And so what would be – what do you envisage the process of dealing with, I guess, the risk factors that arise in relation to this model? Have you got an idea of there being a consultation process with local communities aimed at dealing with risk factors?---Yes. There would obviously be detailed consultation, and then part of the operational design is to do your complete risk analysis and your mitigations and work out the options. And we’ve done some thinking about that for the one in Queensland, at Mount Tabor, which is quite remote in terms of getting emergency access for health services and those sorts of things, yes.
And I think you say in your statement, correct me if I’m wrong, that you have engaged very closely with the Bidjara people and the Goorathuntha people - - -?---Yes.
- - - in relation to that proposal. Has that been quite a time consuming - - -?---It has been.
- - - and protracted process of engaging with the community and making sure they are both on side (a), and (b) have the appetite to - - -?---Yes.
- - - engage in this sort of innovative reform?---That’s correct.
Is that a fair assessment?---That’s a fair assessment.
How long did that process take, sir, if you wouldn’t mind telling us?---Well, I think I have been working with them for about 18 months and mainly – some of the time has been taken up because I’m doing it on the side of my desk with other projects but, yes, it has been a long period.
And is that process, if I might ask, still ongoing?---Still ongoing.
And no doubt it is difficult to, in a community with many different interests, with many people representing those different interests, it is difficult to get, I guess, a cogent community response to a program of this kind; correct?---It is.
And have you encountered from time to time concerns within the community as to their own welfare, risks, safety, so on and so forth?---For having offenders in the community or - - -
Yes?---Yes. In fact we have had community meetings in Augathella with property owners – nearby property owners to discuss those sorts of issues, yes.
And one of the real challenges of this model would be I’m sure, and I’m just speaking off the top of my head, but making local communities feel comfortable with
the idea of engaging in a pilot program of this kind and dealing with the notion of people who would otherwise be in incarceration-like facilities being kept locally, and hopefully in a therapeutic holistic positive environment?---Not an unsurmountable challenge.
No. I’m not suggesting they are, but you referred in the broad to challenges, and I’m suggesting that might be one?---No. They are the challenges that have to be addressed and - - -
Sir, just very briefly before we conclude – we are almost there. You mentioned very early on in your evidence yesterday that going through your CV, from memory, you referred to an incident at Westbrook. For those of us who are too young to remember it, could you just explain to us what that incident was. What gave rise to that situation?---It was a riot at the centre, as I recall.
Yes. There was a riot at the youth justice centre?---Yes.
And, sir, was it the case that the situation at that centre got so out of hand that it was determined necessary to transfer the youths in the centre to an adult correctional facility?---I think that’s correct. Yes.
And did you play a role in that decision making process?---I was part of the process in the sense that the Minister for the Children’s Services Department at the time approached me as Director-General of the Commission, and I alerted my board and we were involved in the process, whatever happened.
What was your role at the time?---I was Director-General of Corrective Services.
So really it was a decision of yours?---Of our Commission and of the government really, of the end of the day, the minister .....
But is it fair to say that was a decision you had quite some considerable input to?---I had input, yes.
And you agreed with it?---Yes.
And the upshot of it was, was it not, that a number of youths were to be kept at an adult correctional facility for a period of months?---I think that was the case.
And that would, of necessity, involve staff working at that adult correctional facility interacting on a daily basis with the youths?---Yes.
And you would accept that wasn’t, I think on your earlier evidence, an ideal situation?---No.
But was it the case that extreme circumstances demanded something of an extreme measure?---Yes.
And is it the case, sir, that no matter how well designed or intentioned a system there may well be, from time to time, incidents that do require the sort of emergency response that occurred in Westbrook all those years ago?---That’s correct.
No further questions.
COMMISSIONER WHITE: Thanks Mr O’Mahoney. Mr McAvoy, have you got any tidying up to do?
<RE-EXAMINATION BY MR McAVOY [4.54 pm]
MR McAVOY: I do, Commissioner, just a bit. Just with respect, Mr Hamburger, to the questions that were asked by Mr Harris?---Yes.
In relation to the – your business model. I don’t understand Mr Harris to have suggested this, but just for the sake of clarity, there’s no suggestion even, or recommendation in your report, that the government contract with Knowledge Consulting?---No, not at all.
Or any company related to you?---No.
In fact, the recommendations go to dealing with and empowering the Aboriginal community?---Exactly.
Through special purpose vehicles?---Right.
And, indeed, in your statement, which is dated 18 November, three months after the report was finished, you’ve – at that – at paragraph 30 of your statement raised the notion of healing and rehabilitation centres, and it’s in – and that’s in the context of a discussion at paragraph 28 where you say, clearly, that it’s in relation to a project currently under consideration in Queensland led by the Goorathuntha and Bidjara people, “and my company”. So you clearly state that it’s your company?---Right.
With respect to your inspections of the Don Dale Youth Detention Centre, you went twice, didn’t you?---Yes.
Did any other of your staff attend the Don Dale Detention Centre?---Yes.
And they were involved with you in the preparation of your report?---Yes, they were.
Did any of those – do you know how long those staff attended at the centre?---I couldn’t give you an answer on that.
But they attended on occasions different to yourself or on the same occasions?---Different to me. I’m pretty sure that Therese Ellis-Smith went at a different time to Ms Downes and myself. Yes.
And do you know how long she attended on that occasion?---No, I don’t. No.
Was there any person, to your recollection within the team, that objected to the characterisation of the Don Dale Detention Centre that you had made – that the report made?---No, that report is unanimous agreement of all of the team members.
Nothing further. I have no further questions for the witness. I think he can be excused.
COMMISSIONER WHITE: Yes, indeed. Mr Hamburger, thank you very much for giving up your time to assist the commission?---Thank you. I appreciate the opportunity.
COMMISSIONER GOODA: Just to reflect on Commissioner White, thank you for your time, thank you for your efforts, thank you for your knowledge?---Thank you, Commissioner. Thank you.
COMMISSIONER WHITE: Thank you. So you are now released from your notice. You are free to go?---Thank you.
Can I just say in closing, ladies and gentlemen, tomorrow Commissioner Gooda and I are visiting the old and new Don Dale detention facilities as well as a Darwin city watch house, as a place where youth are sometimes held. These site visits will allow us to see first hand, of course, the subject matter of the evidence which has already been given and that will be given by future witnesses. There is no question of any evidence actually being taken. It is like the view that we are all familiar with from court processes, of course, to inform us to understand the evidence better. Now, there has been some murmuring about how many people should be permitted to accompany us.
For operational reasons I think, which you will readily understand – and of course because children are accommodated there, it is effectively their home – it’s not appropriate to have many people going in and looking at the facilities. So we will be accompanied tomorrow by Ms Windeyer the official secretary to the Commission, and by representatives of the Northern Territory Government. And, because we think that it should be as open as possible, there will also be some representatives of the media who will accompany us. Parties who have been given leave to appear, together with senior counsel assisting if they wish, may arrange to have an opportunity to visit the facility on a separate occasion.
It won’t be possible to take any more of our flock with us tomorrow, so I hope that you understand why that’s necessary, that we should do it in that way. And we will resume hearings then on Thursday.
MR McAVOY: Thank you, Commissioner. I have nothing further.
MR O’MAHONEY: Commissioner, I think Mr Jacobi has a responsibility from the government’s point of view for the logistics of that visit and the view, and I will just throw over to him, Commissioners.
COMMISSIONER WHITE: Thanks, Mr Jacobi.
MR JACOBI: Commissioners, can I indicate that we do extend to anybody who is a party to the proceedings, or their legal representatives, if they wish to attend the facility we have extended to the Commission an indication that we are prepared to make such further arrangements as they may need, in order that they understand the layout of those facilities, and we can indicate that such further tours as need to be arranged, we will make those arrangements.
COMMISSIONER WHITE: Thanks, Mr Jacobi. That’s appreciated, I’m sure, by everybody here who has got an interest in attending. Is there anything else anyone wishes to raise with us?
MR McAVOY: Not at this point. Apart from the fact that, after tomorrow, we will be reconvening with more witnesses on Thursday.
COMMISSIONER WHITE: Yes. Thank you. Any announcements about those witnesses will perhaps go on our room.
MR McAVOY: The parties will be notified as soon as possible.
ROBERT KEITH HAMBURGER, ON FORMER AFFIRMATION P-369EXAMINATION-IN-CHIEF BY MR McAVOY P-369CROSS-EXAMINATION BY MR BOULTEN P-387CROSS-EXAMINATION BY MS GRAHAM P-399CROSS-EXAMINATION BY MR LAWRENCE P-414CROSS-EXAMINATION BY MR TIPPETT P-427CROSS-EXAMINATION BY MR HARRIS P-439CROSS-EXAMINATION BY MR O’MAHONEY P-444RE-EXAMINATION BY MR McAVOY P-455
THE WITNESS WITHDREW P-457
Index of Exhibits and MFIs
EXHIBIT #33 STATEMENT OF MS JEANETTE KERR WITH ATTACHED DOCUMENTS DATED 2/12/2016
P-365
EXHIBIT #34 MS JEANETTE KERR WITH ATTACHED DOCUMENTS DATED 5/12/2016
P-365
EXHIBIT #35 STATEMENT OF MARK LEONARD PAYNE WITH ATTACHED DOCUMENTS DATED 4/12/2016
P-366
EXHIBIT #36 TWO ABC NEWS ITEMS IDENTIFIED IN THE TRANSCRIPT
