Part Twenty-seven of a history of European occupation, rule, and brutal imperialism of Indigenous Australia, by Dr George Venturini.
The Commission had a shaky start. Appointed on 28 July, the Hon. Brian Ross Martin resigned four days later, following perceived conflicts of interest relating to his and his daughter’s former roles, and saying that “rightly or wrongly, in this role I would not have the full confidence of sections of the Indigenous community which has a vital interest in this inquiry.”
Mr Martin’s quitting, after criticism especially from the Indigenous community, has embarrassed the government, reinforcing arguments that it moved too quickly to finalise details of the inquiry and did not consult widely enough.
Since Mr Martin’s appointment his appropriateness had been questioned on several fronts. He is a former Chief Justice of the Northern Territory Supreme Court, and critics said therefore he would have had a conflict of interest. At least two of Justice Martin’s judgments in cases involving Indigenous people raised controversy. He said that he was not prepared to proceed with the Commission in face of the risk to its effectiveness. “This royal commission is far too important to undertake that risk and, in the public interest, personal considerations must take second place.”
It also came to light that his daughter Joanna was employed as a justice adviser to the former Northern Territory Labor Attorney-General between 2009 and 2011.
Clearly, the choice by Prime Minister Turnbull and Attorney-General Brandis had been a bad one, and an embarrassment for Mr Martin.
The Australian Government proceeded promptly to appoint a former judge of the Queensland Supreme Court, Margaret White, and the Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Gooda, to conduct the Royal Commission.
Attorney-General Brandis enthused about the new nominations: of Judge White he said that she had extensive experience in both the civil and criminal systems and experience in conducting inquiries, including recently into the Queensland racing industry. (!)
He said that Mick Gooda was one of Australia’s most highly regarded Indigenous leaders, who enjoyed the respect of both sides of politics. Mr Gooda is a descendent of the Gangulu people of Central Queensland.
In replacing Martin, the government had taken up the call made by Labor and Indigenous representatives that the Commission should have Indigenous representation on it.
Late on September 2016 Dr Olivia Ball, who is child rights advocate at International Social Service Australia, advocated for a bill of rights.
Undoubtedly some members of the Australian Government, some parliamentarians and some social scientists in and out of universities read the piece. But there was no answer. One wonders.
This is, in part, what she wrote:
“In the Northern Territory, children as young as ten are incarcerated and some have been horrendously mistreated. A breathtaking 97 per cent of juvenile detainees in the Northern Territory are Indigenous. Should a 10-year-old be in prison at all?
The international community has decided when a child should be held criminally responsible for their actions. By human rights standards, the minimum age is 12. Twelve is the absolute minimum, according to the United Nations (UN) Committee on the Rights of the Child, with no exceptions. And governments are urged to set it higher.
Australia is at odds with this standard. Children as young as 10 can be charged and tried for criminal offences throughout Australia. Our criminal codes must be revised to ensure no child below the age of 12 enters the criminal justice system. Below that age, problems of misconduct – however serious – ought to be treated as a welfare matter, with increased support and resources for families, carers and schools.
Our parliaments needn’t wait for the Royal Commission to make this straightforward reform to bring our laws in line with our human rights obligations.
Prisons, police cells, juvenile and immigration detention centres – where people are held under the total control of the state – are places where abuses of power are likely to occur. We would be naïve to assume the crimes allegedly committed against children at Don Dale are an exception, or that the perpetrators are somehow “bad apples”. The Stanford Prison Experiment of 1971 demonstrated how ordinary people readily become despotic in an authoritarian environment. Wherever people are deprived of their liberty by the state, we must take proactive measures to prevent abuses.”
And she went on: “Any child deprived of liberty must be treated with humanity and respect for their inherent dignity, and in a manner which takes into account their developmental needs.
Don Dale is a powerful argument for why we need a bill of rights: to protect our most vulnerable and hold those in power to account. Australia has ratified numerous international human rights treaties, but has failed to write most human rights into domestic law, leaving gaping holes in the legal protection of our rights. [Emphasis added].
The right of children to be imprisoned “only as a measure of last resort and for the shortest appropriate period of time” – while guaranteed in the UN Convention on the Rights of the Child – is not mirrored in Australian law. Don Dale amply demonstrates our common law is also inadequate to protect our children from abuses up to and including suspected breaches of the UN Convention Against Torture.
Any child deprived of liberty must be treated with humanity and respect for their inherent dignity, and in a manner which takes into account their developmental needs. This is a universal right of every child. It seems so basic, yet we have not thought it necessary to protect these rights in our laws.
We must not use the NT Royal Commission as a reason to sit on our hands while we wait for recommendations.
Let us act swiftly to enact a bill of rights in Australia. An ordinary act of parliament would be an expeditious start. Expatriate human rights luminary Geoffrey Robertson QC has written a draft bill for Australia (in his book The Statute of Liberty) which would serve as an excellent template for our legislators.
In addition to states and territories raising the minimum age of criminal responsibility, the Australian Government should introduce a national bill of rights, with straightforward and immediately available remedies.”
Dr Ball was adamant at to what should be done.
“Our governments should also implement the following law reform without delay:
- Ban solitary confinement: Solitary confinement is a breach of the Convention Against Torture. There is no safe length of time to which a person may be subjected to forced isolation. Social contact is essential to human health and well-being and it is cruel to deprive anyone of it. And yet solitary confinement appears to be common in our prisons and immigration detention centres – and was used against children at Don Dale. It must be made unlawful in all circumstances.
- Ratify OP-CAT: Australia is a party to the Convention Against Torture, but has thus far refused to ratify an addendum called the Optional Protocol to the Convention Against Torture (OP-CAT) which would allow scrutiny of Australia’s practices, through unannounced visits by independent national and international monitors to places where people are deprived of their liberty. This measure can act to prevent torture and cruel, inhuman or degrading treatment. We need this independent monitoring and should welcome it.
- Ratify OP3-CRC: Equally, we should ratify the 3rd Optional Protocol to the Convention on the Rights of the Child (OP3-CRC) which allows children and their representatives to complain to the UN when their rights are violated by Australia, if they can secure no remedy here. This is an important avenue of accountability and redress when our systems fail.
As the new Commissioner Mick Gooda has said, it’s impossible to work on Aboriginal issues without working on human rights. Human rights offer us guidance and tools to redress and prevent abuses. Let’s make the most of them.”
One would look in vain for a reply – in or out of parliaments to such fundamental suggestions. (Don Dale abuses illustrate why Australia needs a bill of rights, Dr Olivia Ball, 29 September 2016).
Dr Ball’s article was reprinted early in 2017 (Don Dale: Why Australia needs a bill of rights, 14 January 2017). Silence is the word – perhaps indifference, which may explain, never justify.
The video obtained by Four Corners of Dylan Voller hooded and strapped to a mechanical restraint chair sent shockwaves around the world. It was broadcast as part of an investigation detailing the repeated assault and mistreatment of children in youth detention, culminating in the tear-gassing of six children in Darwin in 2014.
In a written response to Four Corners a Northern Territory Corrections Department spokesman said that the restraint chair had been used on youth detainees “once” and that it was used “only at adult correctional centres.”
Former youth detention guard Ben Kelleher came forward to speak out for the first time. Mr Kelleher was a youth justice officer at Don Dale. He told Four Corners that he saw Voller in the restraint chair in the Old Don Dale Youth Detention Centre some time before the tear-gassing incident of 2014.
“I know of three times he was in the restraint chair,” Mr Kelleher said. “Dylan was never so still, he was never so sheepish as he was when he was in that chair. I think he had admitted defeat when it happened. I turned up for one shift and Dylan was in the chair and the other two times they were on incident reports I read once I got to work,” he said.
Mr Kelleher worked in youth detention centres in both Darwin and Alice Springs between 2011 and 2014 and worked primarily with the ‘highest risk’ children being kept in isolation. Videos obtained by Four Corners show prison guards stripping, assaulting and mistreating teenager Dylan Voller over a period of more than four years.
As a difficult-to-manage detainee, Voller was well known to Mr. Kelleher. Mr. Kelleher said that the first time he saw Voller in the chair he did not think it was wrong, but after seeing the vision of the time Voller was strapped to the chair in 2015 he felt uncomfortable.
“Now I’m a father, I feel there should be no time a kid should be restrained that way, but at the time I felt that was the way he had been dealt with and I didn’t feel qualified to argue the point,” he said. “I truly believe no matter how misbehaved a young man or lady is, they shouldn’t have their right to movement taken away like that. The old me two years ago wouldn’t have been able to say that because I didn’t understand that no one deserves their right to movement or vision be taken away. It’s very hard for the individual and a worker to draw a line between your safety and the safety of the kids.”
Voller told his lawyers that he was hooded and strapped in the mechanical restraint chair in both the Alice Springs Youth Detention Centre and in the old Don Dale several times, the first time when he was as young as 11.
Disturbingly such incidents occurred well before the Northern Territory Parliament moved to amend the Youth Justice Act in 2016 to ensure “that modern mechanical devices of restraint” could be legally used on children.
Voller told lawyer Peter O’Brien that he was placed the chair after kicking and damaging his cell. “He said he has been in the chair more than one time, he certainly has told us that he’s been in several times in the chair, as you’ve already seen depicted on the program,” Mr O’Brien said. “The most concerning thing about that chair is that when it was brought to the attention of corrections, this Government decided to legislate to allow it, to lawfully condone the use of this chair. That’s the sort of people you are dealing with. They should be sacked, they are dishonest, they have been caught out telling complete untruths and they ought to be gone.”
Mr Kelleher said that serious shortcomings in staff training and a lack of resources contributed to problems at the Centre. “You can see why workers get fed up when there’s no clear pathway to fixing the problem. It’s shift after shift, and incident after incident. There’s no support system,” he said. “There’s a one day training course and everything else is off the cuff. You can walk in off the street, apply for a job and the next day you’ve got a kid’s wellbeing in your hands and that is not good enough.”
He said that while working in the behavioural management unit he developed a close relationship with Voller and tried to find constructive ways to manage his behaviour.
“The thing about Dylan is that he just wants somebody to give a shit. He’s a kid who was forgotten about at home, so you can understand why he wants somebody to hang out with. The boys you see and the boys portrayed on the tele[vision] as being delinquents who deserve a chance, that’s absolutely what they are, they deserve a chance,” Mr Kelleher said.
Mr Kelleher stopped working at Don Dale in 2014 after he was investigated for throwing wet toilet paper to conceal a CCTV camera in Voller’s cell days before the tear-gassing incident.
Four Corners had obtained videos, dating back to when Dylan Voller was 13 years old, which show prison guards stripping, assaulting and mistreating the teenager over a period of more than four years while he was in youth detention in the Northern Territory.
A troubled boy with behavioural problems, Dylan Voller has been in and out of juvenile detention since he was 11 years old, for car theft, robberies and, more recently, assault. He is one of the Northern Territory’s most notorious young offenders. On the other hand, his sister said that Dylan’s life was stripped from him after being mistreated in Don Dale Youth Detention Centre.
There is a video showing that, on 20 October 2010, the thirteen-year-old Dylan was being held up by his neck and thrown into a cell in the ‘behavioural management unit’ at the Centre. The officer involved was charged but found not guilty of assault. The casual officer’s contract was not renewed.
In another video, dated 9 December 2010, Dylan is being held in isolation again after threatening to self-harm. He is seen playing with a pack of cards before he is grabbed by the neck, thrown onto a mattress and forcefully stripped naked. The officer involved was twice found not guilty of aggravated assault.
On 7 April 2011 thirteen-year-old Dylan was on the telephone. When he refused to hand it over, a guard ripped the telephone off him, forced him to his knees him and knocked him to the ground. The officer involved was found not guilty in court. His casual contract was not renewed but a 2015 report found he was later re-employed at the Alice Springs Youth Detention Centre despite objections from the Professional Standards Command.
On 4 October 2011 Dylan, now fourteen, was recorded as being held in isolation after threatening self-harm. Three officers entered the room, grabbed him by the neck, stripped him naked and left him on the floor. The removal of his clothing was part of the Centre’s ‘at risk’ procedure.
On 16 August 2014 a youth justice officers entered the isolation unit. One angry guard hurled a pear at Dylan and attempted to conceal the security camera by throwing wet toilet paper at it. He then told Dylan that he was planning to assault him on the outside.
Five days later, on 21 August 2014, Voller was one of six children tear-gassed in the isolation unit after another inmate, Jake Roper, ran amok. The boys had been held in isolation in the ‘behavioural management unit’ for between six and seventeen days before the incident.
On 4 March 2015, when aged 17, Dylan Voller was transferred to the Alice Springs adult prison and – as a video showed – strapped into the chair for almost two hours. Earlier, as the video recorded by guards on duty showed, Voller had chewed on his mattress and threatened to break his own hand after he was put in the restraint chair.
There is uncorroborated evidence of ‘institutionalised brutality’ that the children had been kept in cells for twenty-three hours a day, forced to fight with each other, and even to eat animal faeces. (Dylan Voller: Timeline of teenager’s mistreatment in NT youth detentionA.B.C.).
On 5 December 2016 Keith Hamburger, the former head of Queensland Correction Services Commission and author of a highly critical report on the Northern Territory corrections system told the Royal Commission into the Protection and Detention of Children in the Northern Territory that Don Dale was run like a ‘human storage facility’, ‘basically a prison’ and not a ‘therapeutic environment’.
On 23 October 2017 Amnesty International, Australia complained anew: briefly – it said – Indigenous children make up one in 15 kids in Australia, but are half of all children in Australia’s youth detention centres. (Actually, it seems, 57 per cent). By locking away children and separating them from their families and communities, the Australian governments are placing limits on children’s potential and causing them life-long, psychological harm.
Amnesty launched a campaign for Indigenous justice, mainly for the advantage of children. Other Indigenous justice issues on which Amnesty is working include: 1) action to stop Indigenous deaths in custody; 2) defence of the right to live on Aboriginal homelands, and 3) protection of the right to be free from racial discrimination.
“We launched our Community is Everything campaign in 2015 because we don’t want to see Indigenous kids locked up anymore,” explained Amnesty International Indigenous Rights Advisor Rodney Dillon, a Palawa man, Chair of the National Reference Group for Repatriation of Australian Indigenous Remains, and former Aboriginal and Torres Strait Island Commissioner for Tasmania.
We want to see them living in happy, healthy communities, finishing school, getting good jobs and becoming community leaders.” It is common knowledge that putting children in gaol only makes matters worse. It should be a last resort but research by the Victorian Government [which is known to be sending children as young as 15 to Barwon adult prison] shows that Indigenous children are much more likely to be charged by police, than cautioned and referred to a support programme.”
Mr Dillon went on: “Magistrates in regional and rural areas have said that too often, but local Indigenous programmes are not sufficiently funded to be part of the solution, which makes detention a far more likely option.” To close the justice gap, the Australian Government must work with the states and territories and Indigenous organisations to reduce the number of Indigenous and Torres Strait Islander children in detention. “This is our main campaign aim,” said Mr. Dillon. “Our research highlights the compelling evidence that intervening early in the lives of disadvantaged kids to address the causes of offending helps improve their wellbeing and sets kids up to thrive. With your support we can make a difference to [their] lives. In the words of Noongar Elder Eugene Eades, who we’ve worked closely with on the campaign: ‘The sky’s the limit if we work together’.”
Continued Monday with: Government’s institutional brutality (Part 3)
Previous instalment: Government’s institutional brutality (Part 1)
Dr Venturino Giorgio (George) Venturini, formerly an avvocato at the Court of Appeal of Bologna, devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. He may be reach at George.Venturini@bigpond.com.au.