Transcript 8 December 2016 Web view.ROYAL COMMISSION 8.12.16P-509J.E. KERR XXN ©Commonwealth of AustraliaMR BOULTEN. 20708521.ROYAL COMMISSION 8.12.16P-461 ©Commonwealth of Australia

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TRANSCRIPT OF PROCEEDINGS

O/N H-736397

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

10.02 AM, THURSDAY, 8 DECEMBER 2016

Continued from 6.12.16

DAY 7

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

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COMMISSIONER WHITE: Just before you begin, Mr McAvoy, Commissioner Gooda and I would like to make a statement about yesterday.

MR CALLAGHAN: Mr Callaghan. I know the resemblance is stunning, but - - -

COMMISSIONER WHITE: Dear me, I didn’t have my specs on. I do beg your pardon. Commissioner Gooda, our Official Secretary and I, together with a number of senior Northern Territory Government public servants and Mr Jacobi of counsel, attended the old and new Don Dale Youth Detention Facilities at Berrimah yesterday morning. This enabled us the better to understand the site, layout and circumstances in which young persons have been held and are being held in detention in Darwin, and will assist us to understand the various reports and inquiries into the incidents which occurred, and the suitability of those venues for young people. These matters are in our Terms of Reference.

In the afternoon we visited the City Watch House where youth are held from time to time for short periods. Commissioner Gooda and I would like to record our thanks to the Northern Territory Government and to the staff at the detention facilities, as well as the Commissioner of Police and his staff and officers for facilitating these visits. Now, Mr Callaghan.

MR CALLAGHAN: The Solicitor has an application.

COMMISSIONER WHITE: Yes. Thank you. Welcome back Ms Brownhill. Was it a triumphant visit to the capital?

MS BROWNHILL: Too early to tell, Commissioner.

COMMISSIONER WHITE: Not even any vibes from the bench?

MS BROWNHILL: I would not disclose them, even if I had them.

COMMISSIONER WHITE: Alright, yes. Thank you. You have an application.

MS BROWNHILL: We do, Commissioner. I hope that you’ve been provided with a copy of some submissions to address a concern we have about procedural fairness, and a statement of my instructing solicitor, both of which were provided to the Solicitors Assisting last night.

COMMISSIONER WHITE: Yes. Thank you.

MS BROWNHILL: So I rely on the statement and the application we make is that set out in the first paragraph of the written submissions. The application is made to seek that the Commission refrain from eliciting evidence from five vulnerable witnesses and eight adult witnesses including, it now appears, two experts – so that number may well be nine – that we have been – that we understand are intended to be called between today and the close of this tranche on 15 December. I’ve set out in

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the written submission at paragraphs 4 through to 8 are some general observations about the principles relating to procedural fairness.

Essentially, it’s our concern that the – to proceed to call the evidence from these witnesses within this space of time denies to the Northern Territory the capacity to properly prepare for and respond to that evidence and prevents us from being given a real opportunity to adduce additional material of probative value which might deter the Royal Commission from making adverse findings against the Northern Territory or against its officers where the - - -

COMMISSIONER WHITE: The Northern Territory Government, Ms Brownhill, rather than - - -

MS BROWNHILL: The Northern Territory as a body politic, and a - - -

COMMISSIONER WHITE: As a body politic, very well. Thank you.

MS BROWNHILL: The Crown in the right of the Northern Territory, if I can be clear about that, Commissioner. It’s, in my submission, obvious that there is potential for the allegations that are proposed to be made in respect of either the Northern Territory’s employees or its agencies or facilities to have potentially damaging consequences for the reputations of both individuals and the Northern Territory Government, and could give rise to or support either civil actions or criminal proceedings. So the degree of adversity is high in relation to many of the allegations made, which means that there is a substantial requirement to ensure that we have the capacity to properly address and respond to those allegations.

COMMISSIONER WHITE: Can you identify the witnesses that are causing concern? I had not understood that there were going to be anything like that number of witnesses between now and next Wednesday.

MS BROWNHILL: And neither had we, Commissioner. And perhaps the best place to start is the statement of my instructor, who has at the back of her statement set out a table. And that table identifies the witnesses that we understand will be called. Starting from – you will see on the first page, Commissioners, the reference to Mr Keith Hamburger.

COMMISSIONER WHITE: I’m sorry?

MS BROWNHILL: To Mr Hamburger.

COMMISSIONER WHITE: Thursday the 1st.

MS BROWNHILL: Correct. Thursday the 1st, of course, was the date on which we received Mr Hamburger’s statement.

COMMISSIONER WHITE: Yes.


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MS BROWNHILL: We’ve dealt with Mr Hamburger now, but obviously the submissions that I’m putting about concerns for procedural fairness have to be considered in the context of the work that we’ve had to do to get to this point, let alone address what is yet to come. So as we understand it – or as we understood it when this statement was drawn – there remained, as identified, potential witnesses – and I say “potential” because the correspondence that we’ve received about these witnesses and adverse potential – potential adverse interests was couched in the “may be called” rather than the “will be called”, but we still have to prepare in case they are called.

So the first is a vulnerable child, identified with the initials AF. That’s on the bottom of that page. The next one was AD. We then were – there’s also identified Mr Goldflam, who is an adult obviously, not a vulnerable witness, but there are then AK, Ms Morley – an adult who is summoned to appear on the 14th, next week; then AE. Sorry, I left that one out. Dr McKibbon also been summoned to appear next week. Then AE. Some identified witnesses, Mr Rogers, Superintendent Jimmy, the superintendent of the youth detention centre. They are of course our witnesses, but we still have to be prepared with a statement – as we’ve been directed to produce – and then the last vulnerable witness, identified with the initials AL, plus the three further adults at the bottom of that page, two of whom are proposed, apparently, to give evidence today.

We got notice about them and the content of their statements at about 9 o’clock last night. Now – so those are the 11 or so witnesses that have been identified. I’m told this morning that one of those vulnerable children is now not going to be called. Hers was the first statement we received, and the one we’ve spent the most time on getting prepared for, because that was the first one we got. In section C of the written submission, Commissioner, we set out our concerns about potential adverse interests and we set out our concerns about the statements that we’ve received, particularly from the vulnerable witnesses.

The statements do vary in length and complexity, and the table in – to Ms Wyndberg’s affidavit identifying the number of paragraphs and annexures involved, but one can see that they are, at least in some respects, quite lengthy, some extending 109 paragraphs. AEs of course is some 344 paragraphs long, with 37 annexures and 10 exerts of CCTV footage, none of which we actually have been provided with. So it’s a large amount of material to digest. Once we’ve digested it, we need to identify whether there are either particular officers of the Northern Territory who might either have their own interests adversely affected, or who might be able to shed light or give evidence about the allegations made.

The allegations include numerous very disparate generalised statements which make reference to things being done by, for example, youth justice officers – not identified – or case workers or other people. Now, that would require some investigation on our part to ascertain who might be involved or affected, whether we can locate them. We are then required, after we locate them, to have a discussion with them about the allegations, to take some information from them about what they might shed, and


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then to determine whether there might be a conflict of interest as between their own personal interests and those of the Northern Territory Government.

If there is no conflict, we then ask them whether they are prepared to be represented by us or wish to have their own legal representation, and if it’s the former, then we can take some instructions and proceed to put together a statement of what their likely evidence might be. Obviously there’s a need for a statement to the extent that we wish to call that person or have that person called – by Counsel Assisting, rather, to give responsive evidence. But the other important factor to bear in mind is the process which has been identified in Practice Guideline 1, which I’ve set out in paragraph 13, and that requires that a party who wishes to cross-examine a witness called by Counsel Assisting to, in short, produce a signed statement of evidence advancing material contrary to the evidence of the witness within a timeframe which the Practice Guideline says is agreed with Counsel Assisting.

Now, we haven’t been asked for our agreement in relation to any of these timelines. We have to indicate the area of conflict by reference to our paragraphs, and then give that and any document that we might wish to put to the witness to Counsel Assisting prior to being given leave to cross-examine, and we are concerned, Commissioners, because Practice Guideline – paragraph 41, which I’ve set out the effect of in paragraph 14, provides that a failure to challenge the evidence in that sort of process will result in the Royal Commission accepting as correct the evidence of the witness called by the Royal Commission.

So one can see the serious burden that we face and some appreciation of the burden is also gained by considering the timing within which we were given these materials. So, again, if one goes to the table in relation to the statement of – if I start with Mr Hamburger. So the statement was actually signed on 5 October. We were given the statement on 1 December, some almost two months later, and he was to be called to give evidence on 5 December, four days after we got the statement. And, Commissioners, you will recall the length of both the statement and all of the annexures that were included with it, so it was a huge exercise requiring the taking of statements from Commissioner Mark Payne and Acting Executive Director Ms Kerr to be able to undertake the cross-examination that we took – undertook of Mr Hamburger.

COMMISSIONER WHITE: When did the government get Mr Hamburger’s report?

MS BROWNHILL: On 31 July this year.

COMMISSIONER WHITE: July, yes. Thank you.

MS BROWNHILL: Yes. And Commissioners, you will recall that the cross-examination of Mr Hamburger was not directed so much to the contents of the report, about which we knew and had known since July, but about the many other matters set out in his statement. In any event, we had four days for the response to Mr Hamburger and on the same day we were given the statement of AF; a statement


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containing some 109 paragraphs. We were directed – again, I note that the statement was signed on 25 November, so six days it sat somewhere, but it didn’t come to us. And then we were directed to produce any responsive statement by 8 December. That’s the witness who now won’t be called, we understand.

On the following day we received at a quarter to 4, on a Friday afternoon, the statement of AD. A statement signed on 22 November. So again, a week and three days where it sat where, but didn’t come to us. And we were told to have responsive statements within two days. The other point to note is that in relation to AB, who I understand may be called tomorrow, the letter sent with that statement or notification of it told us that he would be called in the week of the 12th, So we’ve organised our preparation on the assumption that he would be called in the week of the 12th, and we understand that the program is somewhat of a shifting, moving feast, but - - -

COMMISSIONER WHITE: That’s the lot of anything with witnesses, of course. You will be well familiar with that, Ms Brownhill.

MS BROWNHILL: Indeed, Commissioner.

COMMISSIONER WHITE: But I understand the point you’re making.

MS BROWNHILL: Yes. So the statement of AD, as I said, we got on the afternoon – Friday afternoon, quite late; required a specific response within a certain time; and while we were dealing with those matters, of course, we had the other issues to address, such as – I’m not sure if the Commission is aware about the issue to do with the redactions from Mr Hamburger’s report, which were based on security concerns, and we were directed that if we wanted to press those redactions we had to not only have a statement from the Commissioner for Corrections but we had to present him here at 10 o’clock on the Monday morning in order for him to justify those redactions.

So, again, that’s work we are spending where we could be preparing for dealing with these vulnerable witnesses in particular, and we haven’t had the capacity to do that. Excuse me. So, Commissioners, in the paragraphs 17 through to 23, we set out our concerns in relation to our capacity to address the multiple allegations made both as to specific officers, and there are, for example, in AE’s statement, the Solicitor Assisting has identified some 31 named officers whose interests may be adversely affected. And there are, on top of that, a good – great many others who need to be contacted and spoken to in relation to – that’s assuming we can work out who they are – in relation to these generalised allegations which are impressionistic and paint a very poor picture, but make it extremely difficult for us to respond to because they are so generalised.

And the other important aspect of procedural fairness is that we are told what is proposed to be made of those allegations. In addition to the 31 named officers who will need to be referred to, for example, in relation to the statement of Voller there may be numerous other officers who can corroborate the version of events of the 31


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named, identified officers. So the task of responding to a statement like that is enormous, the burden is massive, and the other matter to bear in mind is that the Northern Territory continues to labour under the requirements for production in the multiple notices to produce which have been served and continue, as we understand it, to be pressed.

Now, our difficulties are exacerbated, I suppose you could say, by the notification late last night that Doctors Fitzpatrick and Parnell, is it, are to be called. We understand there – Pestell, sorry, experts in the FASD condition. They don’t necessarily make specific adverse allegations but, as experts, it would be appropriate for us to be able to cross-examine or ask questions of either of them in order to better understand the expert opinions that they are giving, or their conclusions, and to identify for example how the condition might best be addressed in the facilities that we operate. So, again, that late notice of two statements and a report present difficulties for us.

COMMISSIONER WHITE: But I don’t discern you to say that’s an insuperable difficulty, because you’ve already articulated the questions you would need to ask.

MS BROWNHILL: Correct. But, again, it is a direction of our resources that would otherwise be directed to addressing the statements of these vulnerable child witnesses. Just excuse me, Commissioners. Those are our submissions.

COMMISSIONER WHITE: Thanks, Ms Brownhill. Mr Callaghan.

MR CALLAGHAN: It has to be accepted that this Royal Commission and Board of Inquiry faces many challenges, not the least of which it has to be accepted that the resources of the Northern Territory Government are not those that are enjoyed by other governments that might be parties in a Commission of Inquiry, and that everyone here is labouring under significant difficulties. To pick up on an example offered by the Solicitor, it was submitted that the vulnerable child witness that was the subject of the first statement received was the one into which most work had gone. It should be accepted that those sorts of considerations are mirrored on the Commission’s side as much as they are on the government’s side.

It also has to be accepted that, when we are dealing with vulnerable witnesses of that nature, the unexpected will occur and things will not always go according to script. That said, whilst the application no doubt provides the raw material from which some sensational headlines might be manufactured, as expressed in paragraph 1, it’s respectfully submitted that the application is in the nature of a melodrama that requires the script to be examined. It is generalised and, for the most part, unparticularised and seeks relief which is really quite unjustifiable. The relief I’m talking about is, as expressed in paragraph 1, that the Commission should simply refrain from hearing any more evidence in these sittings.

As I say, it’s a startling and generalised sort of a claim, but we would seek to examine it in a little more detail. Could we start with today: the evidence planned


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for today consists primarily of the Territory’s own witness, Ms Kerr. There cannot, in our submission, be any sensible reason to refrain from - - -

MS BROWNHILL: We don’t suggest that Ms Kerr should not give evidence today.

MR CALLAGHAN: Well then, that leads to the question as to what is being done today to ensure that the government is in a position to proceed tomorrow? And whether or not the application in relation to tomorrow’s evidence can seriously be pressed in circumstances where the witness who is going to be called tomorrow, AD – provided a statement which was served, as I understand it, on 2 December. Its content is material which has, for the most part, been well and truly rehearsed in a report by the Children’s Commissioner, and indeed on a current affairs television program. It is all of six pages long.

The Commission did not sit yesterday; the Solicitor has two juniors; and the question is invited: what is it about a six page statement of well rehearsed material, delivered six days in advance, that is so threatening that what is in effect a day set aside for evidence relating to that witness has to be abandoned? If yesterday wasn’t able to be spent preparing for that witness to be heard, then we would submit there’s something wrong. Whilst the correspondence may not necessarily reflect it, it’s my understanding that an indication was given earlier in the week that that Friday would be the day on which that witness was called.

So in our submission today and tomorrow are well and truly in the nature of days upon which evidence can continue to be heard. As regards the evidence next week, and as regards AE’s evidence in particular, it can be accepted that there are difficulties to be worked through. The Solicitor knows that this morning I have offered the services of a junior counsel of the Commission, as of now, to sit down with a lawyer from the Territory and work through those difficulties and if, after the end of that process, there are still difficulties of a specific nature to be addressed then, of course, they should be brought to your attention.

But that should happen in a particular way, and I don’t propose to go through each of the other witnesses to deal with specific issues in seriatim, but I would suggest that any application that involves a suggestion that the Commission should simply refrain from eliciting evidence would have to include specific explanations as to why the Northern Territory is surprised about the content of such evidence, in particular taking into account any background to that evidence. Particulars as to the specific prejudice that is set said to be suffered that would involve the Northern Territory Government in requiring to – being required to make specific investigations, details as to the measures that have been taken in order to avoid such prejudice arising, and details – and not just assertions that are couched in terms such as, “efforts have been made”, or anything of that nature.

Reasons why such measures cannot be completed between now and when that witness might give evidence given, as I say, that is at least four days away and it’s no


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secret amongst everybody here that everybody is working on weekends. And, in particular, also details of the consideration that’s been given to other means of limiting prejudice, such as non-publication orders and the like, and reasons as to why such means should be disregarded in favour of an application that the Commission should simply refrain from hearing evidence. The process involved in what I’ve just outlined should be a bare minimum before any such dramatic application is made.

Can I also go to the concern which seems to underpin the application which, if valid, would be a concern indeed. But as expressed in paragraph 14 of the outline, it is – well, I withdraw that. I will just say that paragraph 14 does not reflect the effect of Practice Guideline 1, paragraph 41, which provides only that if a witness is not challenged then the content of their statement may be accepted by the Commission if the Commission considers it appropriate to do so. The Commission would – it has tried to observe that the considerations of procedural fairness will be honoured, and the Commission would not accept the contents of the unchallenged statements if anything about the circumstances made it inappropriate to do so.

That is clearly the import of Practice Guideline 1 and, as rearticulated in paragraph 14 of the outline, it is simply an inaccurate interpretation of the way in which things would happen. And, yet that does seem to – that proposition does seem to underpin all of the concerns that have been articulated in the application. As I say, given the fact that there is in our submission, no reason to refrain from proceeding with evidence today and tomorrow the Commission should do just that. It has been acknowledged there are difficulties to be worked through. Attempts will be made to do just that. If, at the end of that process, there is an application to be brought addressing the specific requirements which I submit should accompany any such application, then of course the submission should be heard.

The only other matter I would wish to raise at the moment, in case it slips through, is I’m told that my learned friend suggested that the statement of Mr Hamburger was signed on 5 October. In fact, it was 18 November. And, just on that point, it may convey a certain impression to say a statement was signed on a certain date and provided on another date, and there’s a gap in between, when my learned friend knows full well it’s not just sitting somewhere, but there is a process of redaction that is being undertaken, and in particular in the case of vulnerable witnesses there are other considerations that have to be addressed prior to the publication of a statement that may well have been signed.

So it’s not as if these things are hoarded for the fun of it, but that might be the impression conveyed if those considerations are not acknowledged. If there was anything in particular the Commission needed addressed, we would endeavour to do so.

COMMISSIONER WHITE: Thanks. Ms Brownhill.

MS BROWNHILL: Commissioners, just a couple of matters in reply. As for proceeding tomorrow with child AD, the bulk of the evidence of that child, as


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indicated in the statement that we’ve been provided with, addresses a particular incident which has been the subject of Supreme Court proceedings which went for in excess of a week, which involved the elicitation, as I understand it, of some five or so Northern Territory Government officers, and we have some real difficulty and concerns understanding why it is that the Royal Commission would proceed to hear evidence and, indeed, make findings – that’s the purpose of hearing the evidence – about the same factual matters and legal issues which are the subject of contemporaneous proceedings in the Supreme Court in respect of which the court has yet to make a determination.

If the Commission were to simply adopt the findings of the Supreme Court there wouldn’t be any point in hearing all of this evidence all over again and, worse, if the Commission was intent upon hearing different evidence and reaching different conclusions, then we would have deep concerns for the administration of justice about two public processes.

COMMISSIONER WHITE: I don’t think you need to alert us to that comity problem ..... called that.

MS BROWNHILL: Exactly. And - - -

COMMISSIONER WHITE: We were very mindful of that, of course, at the time when the civil proceedings commenced, and I think probably might have hoped that we would have it resolved one way or the other by now, but it was a long and complex trial.

MS BROWNHILL: Exactly. And if what is – well, we know that what is proposed to be revisited is precisely the same thing. A – it doesn’t seem efficient or in any way an appropriate way to proceed for this Commission to revisit all of that material for the purpose of reaching the same or different conclusions. So - - -

COMMISSIONER WHITE: It might be – I mean, this is – I suppose I wouldn’t really call this reply. This is really a principal argument, Ms Brownhill, isn’t it?

MS BROWNHILL: Well, it is, Commissioner, in relation to that child witness in particular, and it’s pressing because we are told that he’s going to be called tomorrow as opposed to what we had initially, at least, understood to be next week. But the concern remains, and it’s a concern - - -

COMMISSIONER WHITE: The concern would be the same, whenever he would be called.

MS BROWNHILL: It has to be addressed and there is, as we see it, no reason why – yes, I’ve just been given some detailed information. So that trial went for two weeks.



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MS BROWNHILL: There were 11 witnesses called for the Northern Territory and three for the plaintiffs. There were two civil actions involved, so not – they didn’t both relate to that individual but it – the incident that his statement covers was a central feature in the civil proceeding.

COMMISSIONER WHITE: It was, although he was not a party to those proceedings.

MS BROWNHILL: Correct, yes.

COMMISSIONER WHITE: Since this is really a new argument and not in your outline, I’m going to give Mr Callaghan an opportunity to respond to that, because it may be that in fact there is a different purpose entirely in calling this child rather than the sorts of subject matter that is the subject of litigation.

MS BROWNHILL: I’m perfectly happy for you to hear from my learned friend, Commissioner, but if there is a different purpose it’s not one that we’ve been told about and, again, we – in order to make a sensible and proper response to that material, it will greatly depend on whatever it is that the Commission proposes or Counsel Assisting at least proposes the Commission do with the evidence set out in that statement.

COMMISSIONER WHITE: Thank you.

MS BROWNHILL: Just excuse me, Commissioner. This does arise in reply: my learned friend referred to what he takes to be our underlying concern, which is the potential adverse findings if we don’t challenge the evidence, and the terms of paragraph 41. But part of what’s critical, as we see it, is our capacity to cross-examine and deal with the evidence as it’s led. If one of these witnesses comes to the Commission, gets in the box and gives evidence for however long it might be, and their statement is tendered, the burden then falls on us to respond to that evidence and there are a few ways we can do that, including by reference to contemporaneous documentary records.

And we’ve suggested that the – what that – we would seek to do that whenever there is – whether we – when we can sensibly proceed that way, because we see that as avoiding the necessity for cross-examining a vulnerable witness. But it will not always be possible to do it that way, and in any event the tight time frames prevent us from either responding in it that way or being able to cross-examine when the need arises.

COMMISSIONER WHITE: Thanks, Ms Brownhill. Mr Callaghan, you’re going to have a further opportunity to deal with the new points that arose for the first time in reply.

MR CALLAGHAN: Yes. And we can understand the sensitivities that might be involved in delivering findings in relation to where another tribunal is considering


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the same incident, but how the existence of litigation to which this particular child was not a party can impact upon his status as a witness before a Royal Commission, which is addressing different issues – maybe the same subject matter. But, of course, by acknowledging only our Terms of Reference, anything done here is addressing different issues to a different standard, and I should indicate it’s anticipated his evidence would in any event be heard in private. How the existence of litigation to which he was not a party can impact upon that arrangement is something that is not immediately obvious.

And, so far as I’m aware, I don’t know of any authority that would suggest that the Commission is precluded or should even consider the existence of such litigation as a reason for not proceeding in the manner suggested. If the Commission required any further assistance on that particular issue I might need a little more time, but because the – as you indicate that wasn’t something addressed in the outline. But - - -

COMMISSIONER WHITE: Mr Callaghan, I would be pleased to hear something of the difficulties of managing vulnerable witnesses and the process that has to be undergone in order to consider their fitness, even in closed hearing to give some evidence to the Commission. I think that may not be so well understood, perhaps, by some. And it would be perhaps of assistance for us, too, to have some clarity about that.

MR CALLAGHAN: Commissioner, I can give some general response to that now but, with respect, I would accept that is something that there might be greater clarity on. By way of an initial response I would indicate that there are inherent difficulties with a vulnerable witness, hence the term “vulnerable”. So there are specific sensitivities involved in each individual witness, but the Commission’s approach has been one which has been anxious to avoid compounding any trauma that a vulnerable witness may have endured and has also involved the need to reassure ourselves, as best we can, because there can never be can guarantees.

But to reassure ourselves about that by way of having children, or vulnerable witnesses, assessed psychologically, or psychiatrically indeed, in one case, with a view to ensuring that the process of giving evidence is – well, at least not contraindicated – I know that’s an elaborate double negative, but it’s expressed cautiously because the whole situation is one that has to be addressed with much caution. We can provide more detailed explanation of that perhaps in the form of evidence from – or in a statement form, to form part of the records of the Commission. That might be - - -

COMMISSIONER WHITE: Well I take it that each vulnerable witness, be it an adult or a child who is a vulnerable witness, has – is – undergoes some psychological or psychiatric assessment at several points, at least, in the process at the time of talking to lawyers to make a statement, whether on another occasion, for example when it’s signed, and then in anticipation of actually giving evidence in a formal sense because things can change, as we know, in a twinkling of an eye with mental status and so on. So it was those things that I think that we’re concerned that these


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children are not made less safe and less – that we don’t compound any of the trauma that their whole lives seem to suggest they have been exposed to.

MR CALLAGHAN: That must be the overriding concern, and it is something which takes time.

COMMISSIONER WHITE: And presumably then, it’s the case that when it is thought that some vulnerable witnesses might give evidence that in fact the assessment would suggest they ought not at this particular point?

MR CALLAGHAN: That has been the case, and I think there was reference to a witness – well, I won’t state categorically what has been the situation. But, yes, that has certainly been the case. And those – those assessments are always going to be respected. No vulnerable child will be compelled – that might be stating the obvious, but perhaps that has to be stated, that the Commission is not going to force a vulnerable person to do anything against their will. There are – the other matters which have to be taken into account in terms of redacting statements such that they don’t feel exposed in respect of certain things they might have said in their statement, that they are willing to say to the Commission but don’t want published, that’s an exercise that has to be undertaken with some precision and some care.

And there are other matters that the Commission will do to ensure that the experience is at least – the least traumatic one that it can be, such as ensuring their confidentiality and their comfort whilst giving evidence, those sorts of things.

COMMISSIONER WHITE: And what about the publication of the statements of the vulnerable witnesses, and particularly the child witness? What was the proposal of Counsel Assisting?

MR CALLAGHAN: The proposal – well, parties have been given various redacted versions.

COMMISSIONER WHITE: Further publication, though.

MR CALLAGHAN: Further publication, I think the starting point would be that beyond the parties the material should remain confidential.

COMMISSIONER WHITE: Yes. Alright. Thanks. Anything else that you want to add, Ms Brownhill? Because I know we strayed away a little from responding to your new point.

MS BROWNHILL: Commissioner, we certainly don’t quibble with the idea that vulnerable witnesses need to be protected and cared for, and we certainly don’t quibble with the difficulties that are involved in hearing evidence from vulnerable witnesses. We do – we do take the – or make the submission that the content of procedural fairness in the circumstances isn’t necessarily affected by those


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vulnerabilities. We face the difficulties regardless of whether those witnesses are vulnerable or not.

COMMISSIONER WHITE: Except, of course, the adverse comment, and so adverse finding notices, take on a slightly different complexion if in fact it never goes into the public arena, but it stays within the confines of the party concerned and the Commission. It may be revisited subsequently, but it does not then, I think, cause the reputational damage that having something out there unanswered brings about.

MS BROWNHILL: Well, there are two points in relation to that, Commissioner. First, the question is we don’t know what ultimately is proposed to be done with the evidence that’s taken in a closed hearing and that is it confidential in terms of what the Commission’s findings might be or how the Commission proposes to express those findings and whatever. So to the extent that there is any prospect that they are publicly expressed, then we need to approach them on that basis and deal with them as we must. And my mind has gone blank about what the second point was. Anyway, perhaps I wrapped them up together.

But, yes, it’s a closed process and, yes, it’s not a public one, but (a), there may be findings based on that evidence and, (b), we have to proceed as if there may unless and until we are told otherwise. Just excuse me for a moment. So, one way or another, some finding will be made by the Commission based on the evidence. There’s no point hearing the evidence unless you’re going to do something with it: presumably, make findings. Whether it’s finding about specific incidents or whether it’s some sort of generalised finding that, you know, X process was inappropriate or Y process was inconsistent with the law of torts or something.

They are adverse findings and conclusions which the Northern Territory Government should be able to respond to and should be given the opportunity to respond to. Thank you, Commissioners.

MR O’BRIEN: Your Honour, Commissioner, I would seek to be heard in relation to this application very briefly, and I won’t be repeating what has already been said. I join with learned Counsel Assisting in opposing this application.

COMMISSIONER WHITE: Yes, Mr O’Brien.

MR O’BRIEN: Obviously, there has been a great deal of conjecture already publicly available about the concerns that my client holds while he’s in – remains in incarcerated in relation to giving his evidence. We are concerned there’s a continuation of intimidation and threats; we are concerned that he must give evidence in these proceedings as quickly as can be achieved. Today I have been provided with a psychiatric report, in line with the Commission’s very laudable procedures in checking that vulnerable witnesses are able and capable of giving evidence and in the best method and form that they can do so. That report says, unequivocally, that AE’s psychiatric condition may be adversely affected if this Royal Commission is delayed to 2017. It goes on to say:


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He is keen to express his experiences as soon as is practicable, and this would have a positive cathartic and therapeutic effect on his psychiatric condition, as it will enable his voice to be heard. During his examination by –

sorry:

Delaying his examination by the Royal Commission to 2017 may exacerbate trauma related anxiety disorder, as he will be left to feel unheard for periods of potentially months.

So we say it is very important – and don’t forget this young person has been aware of what’s going on in the public domain with this Commission since 28 July this year, sitting in custody waiting for his chance to be heard. He thought – and there was – it was hoped that he would be giving evidence in November: that wasn’t to be. We hope, now, to be – we hope to be giving evidence this week: that wasn’t to be. We want to be able to give evidence from Mr Voller next week. It would be heartless, in my respectful submission, to do anything other than achieve that next week. Thank you.

COMMISSIONER WHITE: Thanks Mr O’Brien. Mr Boulten.

MR BOULTEN: Just briefly again, NAAJA wishes the proceedings to continue as expeditiously as possible. We have a number of clients that are vulnerable that have been cooperating with the Commission. We trust that they are well enough to give evidence; we think they are. And some of them, in particular, are very, very keen to participate sooner rather than later. The process of a Royal Commission is necessarily one that emerges over time. We are all subjected to the processes; we must deal with them as best we can. The Northern Territory Government is broadly aware of nearly everything that is the subject of the evidence that’s about to be given, and we just urge everybody to cooperate as best they can to get this Commission on the road and moving.

Finally, we don’t have – and I’m sure other parties that are individually representing clients – don’t have all of the statements that have been referred to in the Northern Territory Government’s written submissions and the statement of their solicitor. We will do what we can, but we would like some notice too. But if Mr Callaghan thought we all had them, we don’t – and yet we want things to move quickly.

MR TIPPETT: May I just say very briefly on behalf of my client.

COMMISSIONER WHITE: Yes, Mr – would you mind going – only because your words can be picked up then for the recording. Thanks Mr Tippett.

MR TIPPETT: Look, our concern, and bearing in mind my experience with Mr Middlebrook yesterday, spending a day going through two statements, is that we are getting statements very late, and I simply don’t have access to my client to deal with them immediately. Now, what my preferred approach has been is if I’m in some way disadvantaged – as I told the solicitor for the Commission – if I’m in some way


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disadvantaged, then I will make an application in the context of that specific disadvantage. That hasn’t arisen yet. But, of course, I’m not aware of the contents of the statements that the Northern Territory has and that the Commission has.

And those statements appear to touch upon, significantly in some respects, both actions and the administration of the department by my client at the time. So I can only anticipate that they will require me to spend some time with him dealing with it. Now, again, in goodwill and with concern that the Commission proceed comfortably and expeditiously, I will of course do my best, but if I hit a snag then I will of course be obliged to make that known. There a likelihood of that only because we are receiving material so late that it makes it very difficult to deal with it.

And certainly when argument is put before the Commission in relation to material I haven’t even seen, I don’t know whether I can legitimately join the argument on one side or the other or not, because I simply can’t – don’t have instructions. So having said that, I would of course prefer that the Commission proceed, but in – my submissions are made in the context of a vacuum of knowledge in relation to statements of a number of these witnesses that have been mentioned. So, to protect my client’s interests, that’s our position at this particular point. Thank you, Commissioners.

COMMISSIONER WHITE: Mr Tippett, you might just take up some of the concerns about the statements that you feel you ought to have and you haven’t yet got, which the Northern Territory Government have, with one of the solicitors or Counsel Assisting when you get an opportunity.

MR TIPPETT: I certainly intend to do that.

COMMISSIONER WHITE: Yes. Do that sort of as soon as possible. Thank you. Now, Mr Lawrence, I’m sure you have some submissions you wish to make. Yes.

MR LAWRENCE: If I could, Commissioners. As you are well aware, I represent directly the interests of the proposed witness, the juvenile AD.


MR LAWRENCE: Who is sheeted to give evidence at 2 o’clock on Friday. I understand that, he understands that, his family member who came up with him on the bus from where he’s from understands that. I spent three to four hours with him going through his evidence in the company of senior Counsel Assisting Mr McAvoy yesterday with a view to him giving his evidence on Friday, with all the protections which we have agreed with Counsel Assisting which will apply to that process, which he is in agreement with. He was also yesterday analysed by the psychologist from Relationships Australia, and a colleague with a view to determining whether he was in a position indeed to give such evidence. And the good news is that they were positive about that.


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I have been in a position this morning, having been informed about this application, this extraordinary application, to consult with that same psychologist as to what she is of the view concerning further delay in AD giving his evidence in this Royal Commission, and she is of the view that that could impact adversely on his state of mind. The Crown brings its application to prevent him giving his evidence, as he understood he was to so do on Friday, partly on the basis that they haven’t got the capacity to prepare and respond, and a real opportunity to produce evidence of probative value in relation to what his evidence is. And we question that, with the greatest of respect to my learned – madam Solicitor.

This Royal Commission was instituted by the Prime Minister of Australia on 26 of July following the screening of Four Corners report which detailed an incident in August of 2014. From then to now there have been various reports and investigations done into the Department of Corrections. There has been the Vita report, there has been Dr Bath’s report, which was completed by the Child’s Commissioner, Ms Gwynne. Those reports necessarily involved interviewing all the relevant parties relating to the running of Don Dale, including the actual incident on 4 August, including the chief executive officer, including the guards that attended on that day.

Their statements, or part thereof, are reflected and both those reports are a matter of public. Since then there has indeed been civil litigation launched on behalf of four of those young juveniles who were in Don Dale in August of 2014 and involved in that gassing incident. That proceeding was launched in early of this year. Statements of claim were filed, the Crown responded with notices of defence, discovery proceedings were undertaken, affidavits were drawn up. There was a trial before Kelly J in this honourable court just across the hallway which went for the best part of seven days. Three of those children gave evidence in the trial. There were 10 Department, or at least Crown, witnesses gave evidence following through from sworn affidavits which they had already filed in preparation of that trial.

The Crown also called an expert witness in relation to the procedures or the methods used pertaining to gassing and the like. That evidence is now complete, submissions were fully done, and we are now awaiting a result. I should inform the court that AD himself has launched a civil proceeding in relation to that incident. A Statement of Claim was filed and Notice of Defence was responded to. And the reason I inform the court of all of this is probably pretty obvious, but it’s why we object, or at least we disagree, with the Crown’s claim that they are not in a position to deal with AD’s evidence on Friday. AD’s statement is six pages. It’s 38 paragraphs. There is nothing new in AD’s statement that’s going to be filed, and him attest to on Friday, that the Crown don’t know about, or the Crown should know about.

Now, AD is a vulnerable witness. He’s now [REDACTED], he was [REDACTED]. He is most anxious that his story be told: beginning, middle, and end, and this procedure finish for him so that he can continue on with [REDACTED] next year, and hopefully pick up employment which he has already harnessed to a degree and continue in a positive way. Significantly, and I repeat – forgive me because it


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doesn’t get any more persuasive, but the person who did assess him with a view to concluding as to whether he could give this evidence has advised me that any delay could jeopardise his prospects in the future. So in those circumstances I would urge upon the Commissioners to deny this application and allow AD to give his evidence to completion so that he can get on with his life.

I’ve been listening to – regularly, through the media and the like, I’ve been watching and listening and reading the Chief Minister of the Northern Territory and the First Law Officer of the Northern Territory say unequivocally that they would cooperate fully with this Royal Commission, and I have – perhaps naively – accepted that. And I still accept it. I still believe that they are genuine in that regard. So I question, really, why their legal representatives now could make an application that would prevent AD telling his story and potentially compromise his mental situation, which I would have thought was obvious to anyone, without a psychologist. And so that’s why we strenuously, on his behalf, resist this application. And let’s get on with this, trying the best we can, using industry and endeavour so that this Commission can do its important task. Thank you.

COMMISSIONER WHITE: Thanks, Mr Lawrence. Ms Brownhill I expect you would want to – possibly want to respond to the separate responses to your application.

MS BROWNHILL: Just extremely briefly, Commissioner. In relation to the civil proceedings which I referred to, and which my learned friend Mr Lawrence referred to, what’s critical about those proceedings in addition to the other things I’ve said is that the evidence proposed to be given by AD is his evidence alone about a complex series of events which can’t be considered in a vacuum. The kinds of findings which we understand or expect to be in contemplation based on that evidence can’t be made without hearing the evidence as the Supreme Court did in its totality and one can’t do that in an afternoon. Thank you.

COMMISSIONER WHITE: Commissioner Gooda and I will adjourn now and consider the application and the responses to the application. We will – we understand that Ms Kerr is, in fact, to be giving evidence today, and so we will give our reasons and decision when we come back. But I’m looking at the time, it’s now quarter past 11. It might be sensible if we kind of merge that into the morning break so we don’t break up the morning again. So if we return at say, quarter to, 10 to 12, that should accommodate both the morning break, allowing Ms Kerr to be here and get started when we’ve given our decision. Is that satisfactory to - - -

MS BROWNHILL: No difficulty. Yes.

COMMISSIONER WHITE: - - - those who are doing these things? Thank you.

ADJOURNED [11.15 am]


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RESUMED [11.55 am]

COMMISSIONER WHITE: The Northern Territory Government has today brought an application in effect to vacate the balance of the hearing dates this December on the principle ground that insufficient time is available for it to prepare for the cross-examine of witnesses proposed to be called today, tomorrow and next week by senior Counsel Assisting the Commission. It emerged that there is no such concern about Ms Jeanette Kerr, Acting Deputy Chief Executive of Territory Families, who provided a statement recently in response to that of Mr Keith Hamburger who gave evidence on Monday and Tuesday. That statement was prepared by the Northern Territory Government.

The thrust of the government’s concern in effect relates to child witness AD, who is scheduled to be called tomorrow afternoon, and AE, a vulnerable witness currently in custody in the Holtze Correctional Facility. The application is not supported by counsel for NAAJA, Mr Boulten; by AE’s legal representative, Mr O’Brien; Mr Lawrence, for AD; and not by Mr Tippett for Mr Middlebrook, although it would be fair to say that he’s holding his fire a little. The crux of the concern relates to a perceived need to put in issue the whole of the incident known as the gassing incident in AD’s statement. Complaint is also made that that incident has been the subject of civil proceedings in the Supreme Court, with judgment reserved, and it would be highly undesirable to have conflicting evidence and certainly conflicting results.

As to the latter argument, it is worth observing that AD is not a party to that civil proceeding, although the Commission was informed by Mr Lawrence that he has in fact commenced proceedings for civil – in a civil suit for damages against the Northern Territory Government and has filed a Claim and Statement of Claim. There are said to be 31 witnesses against whom adverse findings might be made in AE’s statement, and accordingly the Northern Territory would be at considerable disadvantage in locating those persons, concluding whether there was any conflict for the purposes of representation, and other matters which would result in their being unable to be prepared to manage cross-examination of AE, who is proposed to be giving his evidence next week.

As counsel have – opposing counsel have pointed out, the Northern Territory Government has not come to these statements in ignorance. It is true that they have been in receipt of the statements themselves only quite recently. The matters canvassed in AD’s statement have been the subject of many investigations which are generally available, and certainly to the Northern Territory Government. I mention merely the reports of Mr Michael Vita, Dr Howard Bath and Ms Colleen Gwynne, the Children’s Commissioner. It is important to keep in mind that this Commission was charged with looking – investigating these matters which, amongst others, prompted the Commission being established.


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And in paragraphs (f) and (m) of the Terms of Reference there is appropriate mention of those previous reports as well as the need to consider civil proceedings and criminal proceedings which should always be kept in balance in this Commission, and ways in which the testimony of witnesses can be taken into account to avoid unnecessary trauma to witnesses. There can be no concern that the Northern Territory Government cannot understand and be prepared for AD’s evidence. It will be given in closed hearing and will be confidential. At a subsequent time the Northern Territory Government can produce witnesses should it be so minded to do, so to counter what is said by AD.

It is not the purpose of this Commission to subject children to cross-examination. The Northern Territory Government is concerned with paragraph 14 of Practice Guideline 1, but it’s important to bear in mind it is a balancing exercise. This Commission may make findings, if appropriate, if there is no contrary evidence, but it will be in a position to put on contrary evidence should it wish. Any outstanding concerns with respect to adverse statements in AEs case can be further discussed with senior Counsel Assisting. An offer has been made at the application stage this morning to work through his lengthy statement with them to address those concerns.

Of considerable, if not overriding concern, is the vulnerability of these witnesses, and everyone present in this Commission would concede that that is the case. Their legal representatives have told the Commission this morning that both have been assessed, by psychologists in one case and psychiatrists in the other. It is clear that both vulnerable young people wish to give their evidence, that is important for them, but they wish to do it as soon as possible. And the medical advice is, should they not be able to do so, there is no guarantee that they may not be further damaged by the delay. The safety of the children must be a first and overriding concern for this Commission.

It must, of course, be balanced by disadvantage to other parties but, as I hope I’ve indicated, the disadvantage is more imagined than real, and can be worked through. Accordingly, we have come to the conclusion that the application by the Solicitor-General ought to be refused. You agree?

COMMISSIONER GOODA: Yes, I agree.


MS BROWNHILL: Commissioner, can I just clarify something that you said in relation to cross-examining child witnesses. I wasn’t clear on whether there was a ruling that there will be no cross-examination or that there will be.

COMMISSIONER WHITE: I’m sorry, that wasn’t clear, but AD – any questions for him will go through Counsel Assisting. No counsel will actually cross-examine the child. Thank you.


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MR CALLAGHAN: If the Commission is ready to proceed, I will call Jeanette Kerr.


<JEANETTE ELIZABETH KERR, SWORN [12.05 pm]

<EXAMINATION-IN-CHIEF BY MR CALLAGHAN

MR CALLAGHAN: Can you tell the Commission your full name, please?---Jeanette Elizabeth Kerr.

And the position within the Northern Territory Government that you now occupy?---It’s deputy CEO, operations, for Territory Families.

You’ve supplied two statements to the Commission; is that correct. There was one dated 2 December and one 5 December?---Yes.

For the record, they are exhibits 33 and 34, respectively. Absent from the second statement, I think, was the delegation to which you make reference in that statement; is that correct?---Yes.

Yes. Alright. I will tender a copy of that delegation now.

COMMISSIONER WHITE: Exhibit 35, Mr Callaghan.

MR CALLAGHAN: Ms Kerr, you supplied statements because – to adopt some – well, perhaps two reasons. To adopt some language that was used only Tuesday: you are a senior officer in one of the agencies that is giving strategic advice to the government about issues with which the Commission is concerned; is that correct?---Yes.

And then, more specifically in your second statement, you made in response to the statement and report of Mr Hamburger; is that correct?---Yes.

Territory Families has been known by different names over the years; is that correct?---No, it’s not. Territory Families is a new organisation, a new agency which has different functions.

And how is it different from the functions exercised by previous agencies, that have attended to similar concerns?---Well, Youth Justice was under Department of Corrections, and the Attorney-General and Justice at different times. It’s now under Territory Families. Care and Protection of Children, the former DCF is one area of Territory Families. We also have the Domestic Violence Directorate which has been

.ROYAL COMMISSION 8.12.16 P-479 J.E. KERR XN©Commonwealth of Australia MR CALLAGHAN20708521

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under a number of different other agencies, and that’s responsible for overarching policy and operations in domestic violence.

Okay?---There’s a range of other multicultural affairs, seniors, men’s, women’s policy that have come from – and carers and pensioner concessions. Carers and seniors.

..... I’m sorry?---And they have come from three other agencies.

These are things that weren’t previously done by the DCF, as you’ve called it?---Yes.

But are now part of the responsibility of Territory Families?---Yes.

COMMISSIONER WHITE: That’s set out in paragraph 12 of your statement; is that where we find that?---Yes, Commissioner.

Thank you.

MR CALLAGHAN: What I was probably getting at was that the Department of Children and Families has had different incarnations over the years; is that correct?---Yes.

Because I will be asking some questions about those previously existing agencies, I’m just drawing this to your attention now: I’m just going to use the term Territory Families throughout?---Yes.

Even if I’m referring to a function that was performed some time back. Okay. We know from the delegation that has been tendered that – as I think you just alluded to, you’ve been provided with certain powers under the Youth Justice Act. That’s correct?---Yes.

These were powers that previously belonged to the Commissioner of Correctional Services?---Correct.

This is part of the process by which youth detention has been removed from the purview of Correctional Services; is that correct?---Yes. And other youth justice functions.

Sure. Those powers have been specifically delegated to the person who occupies the position that you now occupy; is that correct?---That’s right.

Is there any reason why it’s to that position and not to the chief executive himself?---Yes, there is. Under the Youth Justice Act the immunity in relation to using the powers does not extend to a CEO, only to a Commissioner or public servant.

I see. So does the CEO have any powers in relation to detention for example?---No.


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Okay. But you still report to the CEO. That’s - - -?---Yes.

- - - in the way of things?---Yes.

Okay. The powers that you have now, in relation to youth detention, derive from that delegation which, as we know, is an act of the executive; that’s correct?---Yes.

So that could be reversed. I’m not suggesting it’s about to be, but that could be reversed by way of executive decision?---Yes.

Is there any plan that you’re aware of to entrench that position by way of legislation. I realise this is has all happened very quickly?---Yes, there is a plan.

Can you tell us about that?---Territory Families, with a range of other partners, will be embarking on a complete review or rewrite of the Youth Justice Act.

Well, can you tell us a bit more about that. What has been done so far and what’s proposed?---Well, at present the only amendment is in regard to the use of restraints. What is being proposed is that we have a legislation reform group set up, that includes legal assist legal services and other stakeholders, but we haven’t commenced drafting that yet. And obviously the Attorney-General’s and Justice will be involved.

Well, what stage is the proposal at? Is that written down anywhere or is that just an idea?---I’m sure it’s probably written down somewhere, but I couldn’t point to where.

Is it in a memo or something?---It is – it’s essential it happens because the Youth Justice Act is not current, thus the need for the delegation.

Indeed. And I am interested in the, perhaps, timetable or whether that is more than just a thought that it’s a good idea or something that has to happen. Is that something that you might be able to check for us as to whether there’s a timetable or whether - - -?---There is not set out yet a program planned for doing it. We’ve had multiple discussions with stakeholders. It’s certainly the intent of government and our Minister that we will do that. But to do it properly we realise it’s going to take some time.

Sure. But can you understand my interest in the degree to which the intent has manifested into anything concrete. At the moment it is just an intent; is that correct?---Yes.

Okay. And just while we’re on that, because I did have some questions about the Youth Justice Act which I was going to address later on, but we may as well go to them now, because those recent amendments are to do with the use of, as you say, restraint - - -?---Yes.


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- - - devices; is that correct? That is something that has been incorporated into a bill, which as we now know is law as of very recently?---I don’t believe it has been assented to yet.

Okay. Alright. It’s passed in any event; is that correct?---Yes.

Alright. Can you tell us anything about the process of the drafting of that bill. Was it targeted to just that specific issue on the basis that the whole Act is going to be reviewed some other time, or was there a committee, or how did it work?---It was – it was the intent of government to make an early definitive statement about youth justice and the appropriateness of using devices such as the restraint chair. So – acknowledging that there will be a review of more legislation, and also I guess making it absolutely clear what restraints are permitted to use in youth justice.

Well, can we just go back a step from that in terms of making things clear, because I’m interested in the basis for the use of any sort of force against a child in detention. Is that absolutely clear to your mind, the legal basis upon which force might be used against a child in detention?----Yes.

How is that clear to you?---From the legislation, the directives.

Well, let’s start with the legislation. Which parts of the legislation make it clear – make that clear?---You want me to give you a section or subsection? Because I can’t do that.

If you just tell us the effect of the provision. I’m not going to quiz you?---Well, it would be unlawful to use force on a young person in detention if there wasn’t a – you know, a reason to do it. A valid reason to do it. And that might be to protect their safety or the safety of another person.

Well, that’s – there is the issue of protection that’s addressed in the regulations. Is that what you’re referring to there?---I can’t refer you to a specific section or regulation.

Alright. Is there anything – well, can you tell me whether you know there’s anything in the Act – don’t tell me the section number, but does the Act deal directly with this question of the use of force?---It does, in terms of the use of restraint. I’m aware of that.

Well, yes. Restraint is a type of force. That’s what I’m saying. If we take it back to the general question of use of force generally?---I think we would find the use of force in relation to young people in detention would be under the Criminal Code.

Alright. There is a provision there relating to discipline; is that correct?---It’s about using force. It would include by correctional officers or youth justice officers or people holding people in detention. I think section 27.


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Alright. Is that the provision that would apply – is that a provision that applies specifically to them or just to someone in the position of a parent or guardian?---No. It’s more than a parent or guardian. It’s in relation to people in custody - - -

Alright?--- - - - I believe. But I’m not claiming to be an expert on the legislation.

The issue arose in a case involving someone who will appear as a witness in this Commission, and who was a complainant in a prosecution which was subsequently appealed to the Supreme Court – well, there was an acquittal which was appealed to the Supreme Court. You know the case I’m talking about. Edwards v Tasker?---Yes.

The question is considered in that case, you would be aware of that?---No.

Okay. To come back to the question of what amount of force might be used against a child in detention, can we just sum it up this way, I suppose: that broader proposition wasn’t considered when you looked at the amendments to the types of restraints that might be used?---I’m not clear on what the broader proposition is, so I can’t say whether I considered it or not.

Well, if you can’t say what - - -?---Could you – could you - - - it is, I suggest it wasn’t considered at all?---No.

MR O’MAHONEY: I object ..... Commissioners.

COMMISSIONER WHITE: Yes. And I don’t think you need to elaborate anymore, Mr - - -

MR O’MAHONEY: I have let this line of questioning go on for some time, but – and I’ve hesitated to object.

COMMISSIONER WHITE: All right, then. Yes.

MR O’MAHONEY: The objection is one of relevance, and I don’t think it needs to be put. Firstly, the last question was not fair. The witness was asked to reflect on a proposition that wasn’t clear in her mind, and then it was reagitated. But before then, really, the questions were aimed at almost quizzing the witness as to her understanding of the law. The law will speak for itself and, in my submission, it’s not relevant or fair to have a witness in the position of this witness quizzed about specifics of how different legislative regimes interact with one another and what specifically they provide for. She has spoken in broad terms as to her understanding and to go beyond that, in my submission, is not relevant.

COMMISSIONER WHITE: Yes, Mr Callaghan.

MR CALLAGHAN: The witness is in charge of youth detention. It is legitimate to question her understanding as to the degree of force that could be used against a child


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in detention. That is said by way of defence of the questions I’ve already asked. I’m ready to move on.

COMMISSIONER WHITE: I was going to rule, were you going to persist, that the last question was a bit obscure.

MR CALLAGHAN: I accept that and withdraw it. But, as I say, would like to move on in any event.

COMMISSIONER WHITE: Yes. I accept the relevance of the questions that came before.

MR CALLAGHAN: Can – do you have a copy of your statement on the screen? Can we get paragraphs 52 to 58 up, please. Ms Kerr - - -?---Excuse me, can we just make it a little bit bigger. I’m struggling with that.

Would you like – can we get you a hard copy? Would that be – might be easier if we can do that?---That’s fine.

Alright. It would seem clear enough that there are many positive initiatives occurring within the Youth Justice sector or in the Northern Territory?---Yes.

And some of those are listed in paragraph 53?---Yes. That’s right.

And I don’t suggest that the positive initiatives are limited to that, but this is an example of some of the programs that are now available to youth in detention; is that right?---The programs in here are all the main programs in youth detention at present.

Yes. What I meant was there were initiatives other than programs?---Yes.

But can we just – can I just ask you some questions about the programs?---Yes.

And how we might, as a Commission, assess the usefulness or benefits of them. Would we be able to get, for example, details as to the actual implementation of these programs. Details such as participation rates. How many children have actually used any or all of these programs?---I don’t know that information.

COMMISSIONER WHITE: I think the question was: would it be possible to get hold of that information, Ms Kerr?---Yes, Commissioner. I would assume that those records have been kept. I can’t say absolutely that I have that information available at present. I may be able to.

It might be kept at the local level, do you think, perhaps in the facility itself rather than at the higher administrative level?---It may be, and it may also be that a lot of those records are still with the Department of Corrections, and we would have seek them from them.


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MR CALLAGHAN: It follows that you have no direct knowledge at the moment about the extent to which those programs are being delivered?---Those - - -

MR O’MAHONEY: I object to the question. That question isn’t fair, in my submission, Commissioners. It has built into it a premise that doesn’t follow from the evidence, and if a question is to be put to the witness with – on the basis of the premise, that premise must fairly accord with the evidence that has just fallen. That wasn’t the case just then.

MR CALLAGHAN: It was actually a very accurate summary of the evidence: that at the moment the witness can’t give us details.

MR O’MAHONEY: Well, I press the objection. The answer was directed towards whether records were in existence to the knowledge of the witness, and where they might be. The premise on which the question was put was quite disconnected from the answer that immediately preceded it, in my submission.

COMMISSIONER WHITE: I’m not really sure about that, Mr O’Mahoney, at all. I thought that – well, the – what I took away from the answer was that Ms Kerr is unsure and that the records may be with Corrections. That’s what she offers.

MR O’MAHONEY: Absolutely. And if the question was directed to the location of the records there would be no objection. The question, as I apprehended it, was the proposition put on the back of that answer was that, “You have no knowledge of the extent to which these programs have been implemented.” It wasn’t a question that was directed towards the documents or the records.

COMMISSIONER WHITE: Must say, I think that necessarily follows.

MR O’MAHONEY: In my submission, it doesn’t, but if that is your ruling Commissioner, would it please the Commission.

COMMISSIONER WHITE: Don’t think we are looking to pick over too closely, Ms Kerr. She has just come into a new position, and I don’t think that there – you should be so alert to think that these are adverse comments at all.

MR O’MAHONEY: No, I’m not. But I am very mindful of the need for questions to be put to her fairly, and really the reason for the objection was simply that the premise in that question didn’t follow, in my submission, from the answer just given. But I’ve heard what you have said, Commissioner, and - - -

COMMISSIONER WHITE: Well, that’s how I took it. So if you want to have some different impression, Mr Callaghan, you might have to approach it again.

MR CALLAGHAN: No. The question was, in effect, a full stop to that line of questioning summarising the position and being ready to move on. Can I take you to paragraphs 25 to 27. And that is the topic of a function of review of the central


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intake team and the screening and assessment process. At the outset, perhaps, could you just provide a brief explanation about this concept, about what’s being reviewed here?---Okay. Central intake is the point where all notifications for care and protection of children matters come into the agency.

What are the exact areas of the central intake screening and assessment process that are going to be reviewed?---What’s going to happen is that there have been a number of reviews or workshops in the recent past. We have a consultant coming in who will amalgamate and do a desktop, so to speak, review of those or a literature review, and then speak with some of our client groups, people who report to us, and the staff themselves in management to ensure that what we are doing is not unnecessarily duplicating notifications and is streamlined and appropriate in gathering the information and followed up without unnecessary inefficiency.

So duplication of – whether notifications are duplified is an area that is being reviewed?---Yes.

Anything else that’s actually – specifically what are the exact areas?---Processes.

Which processes?---I cannot take you through point by point of the process for central intake. You would have to talk to someone who actually is involved in that area.

Okay?---But my understanding is that notifications come into the system from a range of areas, including from an automated web-based system where a range of agencies can refer to police, refer to Territory Families. Most notably the police do a large number of referrals, and it’s looking at the quality of those referrals and whether they are duplicated, because time wasted on duplicate notifications is time that we take away from our people on the frontline doing the work with the children and families.

Certainly. Can I ask this then: where would we find the terms of the review that’s going to be the commissioned?---It’s - - -

Are they written down somewhere?---Yes. They are in the governance area.

Sorry?---They are in the governance area and it has been approved through myself, the general manager organisational services and the CEO.

Sorry, we might be at cross-purposes. You say in paragraph 25 that Territory Families is in the process of commissioning an external functional review?---Yes.

So an external agency, or someone external to the department - - -?---Yes.

- - - is going to do a review?---Yes.


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And what exactly are – I want to know what exactly they are going to be asked to do and whether those instructions are written down somewhere?---Yes, they are.

And on what document?---We have a scope for the works that I can access for you, if you would like that.

Okay. Thank you. That’s all I’m asking?---I can’t tell you word for word what’s in it.

There is a scope?---Yes, there is.

.....?---Yes. There, is.

And .....?---And a panel contract has been arranged.

A contract has been arranged?---A panel contract, yes.

Okay. And the scope would be something that you can make available to us?---Yes.

In due course?---Yes.

Thank you.

COMMISSIONER WHITE: Now, you are going to ask the next question: would you make it available to us?---Yes, of course.

MR CALLAGHAN: I assumed nothing less, Commissioner.

COMMISSIONER WHITE: I don’t think you should assume too much in the field of linguistics, Mr Callaghan. Someone is watching you very closely.

MR CALLAGHAN: I’m sure that’s so. Ms Kerr, this topic, or this area of Territory Families work. has been looked at and reviewed previously – previously, hasn’t it?---Yes.

And you made a mention a moment ago of previous reviews, I think?---Yes.

Does that include the review undertaken in 2009?---Is that the Board of Inquiry?

Well, I would suggest it happened in this way, that in 2009 first of all the Minister for Child Protection requested the Children’s Commissioner to prepare a report?---I’m not aware of that. No.

Okay. But I think you might be one step ahead in another direction, because the Children’s Commissioner began that task, and in 2010 the Board of Inquiry overtook the investigation, but an interim report was delivered by the Children’s Commissioner?---Okay.


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Are you aware of that?---No.

You haven’t read that report?---No.

Then the Growing them Strong, Together Report was delivered. And do I apprehend from your anticipation that you have read that?---No, I haven’t.

Well, were you aware of the findings at least in that report in which back then it was observed that there was a 69 per cent increase in notifications in the space of a year?---I’m not aware of the specifics, no, but I’m aware that there were concerns.

Well, were you aware that once the Growing Them Strong, Together report was delivered it was urged, recommendation 17 on page 29 of the report, we might even be able to get that up – I’m not sure – it was urged that the recommendations of the interim report be implemented as a matter of priority?---I’m - - -

COMMISSIONER WHITE: I think it’s up on the screen now, Ms Kerr?---Okay. And this is 2010?

Yes?---No. I wasn’t aware then that this was put out and said that it was a priority.

Well, are aware as to whether those recommendations have been implemented?---I’m aware that some have, and some are still being worked towards, and they may be part of a wider reform review.

Some have and some have not; is that right?---Yes.

Are you aware of which ones – not to tell me off the top of your head now, but as part of your function, are you aware of which ones have and which ones haven’t?---I guess, Commissioners, I would like to put some context around our position and how long we’ve actually been here.

COMMISSIONER WHITE: Yes, I think that would probably be a fair thing to do.

MR CALLAGHAN: I have no difficulty with that?---Yes. So this is starting week 11 for me, and week 13 for Territory Families.

Sure?---And it’s the amalgamation of areas from six different agencies, and I think there is somewhere in the vicinity of 40 or 50 reviews into youth justice and child protection, and in that time we could not possibly get across everything as the CEO, the deputy CEO. So we rely heavily on the people that work in the areas of research, policy, strategy and governance to advise us. There are a number of reports I have read, but that’s not one of them.

And – I’m sorry, but you’re not to be criticised for - - -?---No, no. I’m just trying to make - - -


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For taking time to get up to speed?---Just trying to make it clear.

And it should be clear, and thank you for clarifying. But to come back to this question of the review of the central intake team, which you would appreciate - - -?---Yes.

- - - is an important feature?---Yes, it is. It is very important.

When – and I am just being guided by your statement in which you have been proffered as the information and you have been offered up, if you like, as the witness who can tell us about these things?---Yes.

And you’ve said in paragraph 25 that the Territory Families is in the process of commissioning an external functional review, and I took that to mean that was part of a process in which you would obviously be engaged?---Absolutely.

You personally?---I’m not going to be doing the review, no.

No, but in the commissioning at least of it?---In the commissioning, yes.

Okay. And that - - -?---And the genesis for it was from, obviously, regular meetings and discussions with the executive directors and the people in charge of these area, who have a level of dissatisfaction with the process and, in unpicking that and discussing that, it’s quite clear that our processes could be more efficient.

Of course. But to get back to this commissioning of the review, what is of direct concern is the – whether the implementation or otherwise of the earlier recommendations in 2010 informed the decision to commission the review and informed the scope of the review?---In terms of what was actually written in the scope, it may have been by the person that wrote that up. For us, we gave broad direction and outline about what we wanted to achieve. But certainly considering the Board of Inquiry report will be part of the functional review. As will other – many other reports and workshop outcomes.

And that will be - - -?---Into central intake.

That will be reflected in the document that you have told us about that will define the scope of the - - -?---Yes, it will.

Of the inquiry?---Yes, it will.

Okay. Thank you. At paragraph 38 – I’m sorry, paragraph 15, my apologies. You refer to the creation of a new position, which is the senior director of programs and engagement?---Yes.

Can you just tell me, please, where that position sits within the organisational structure of Territory Families?---That position will be reporting direct to the CEO.


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And in this context in paragraph 15, can you tell me what the term “co-design” means, that is to say, with whom?---Yes. Most significantly, it will be with peak organisations and Aboriginal community and Aboriginal people. So, for example, if we were to be working on foster care programs and initiatives it would be with Foster Carers NT, key stakeholders in terms of actual foster careers and the children themselves who are in foster care. If it was to roll out a program in a particular community, it would be with that community and the peak groups in that – that work and live there. We may have a more general model based on evidence – previous evidence and research, but every program that we do and implement will have to be place based, and in consultation and design cooperation with the people that it impacts on.

Can we run on, then, to paragraphs 16 to 22 and the concept of therapeutic residential care?---Yes.

You note that the Australian Childhood Foundation has been commissioned to develop and implement a therapeutic model of residential care?---Yes.

And if we looked at annexure A to your first statement, there’s a document that – this is an assumption which I maybe shouldn’t make, but is that their model – the model that was delivered to you that has been adopted by Territory Families?---Yes.

Okay. It was accepted in September, I think - - -?---Yes.

- - - according to your statement; is that right?---Yes.

Between paragraphs 20 and 22, you identify proposals for improvements in training?---Yes.

And this is training specifically directed at the care of children who have suffered trauma; is that correct?---Yes. Initially the project with ACF was to develop – was to be developed for residential care and residential care workers. However, in discussions with the ACF, it’s our intention to broaden the scope of that to all of our frontline workforce. But, yes, it is in relation to trauma.

And have I interpreted it correctly: some of that training is going to be delivered to youth justice officers in the near future?---Yes.

And then further training to follow for residential care staff in March next year?---The residential care staff, the training for them will be face-to-face. We are bringing a consultant from ACF to commence that, until we can develop the expertise within the agency, or buy it in. In terms of the youth justice officers, it will probably start in January using key staff already in the agency.

Okay. Obviously important work, and my only question is whether it’s going to be a compulsory part of the induction of youth justice officers in the future to undertake


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the same training or the same sort of training?---There are obviously industrial considerations we need to work through, but that would be our desire.

Okay. And again, please, it’s not a criticism because you’ve only been there a short time. There’s a lot going on. But is that desire written down anywhere yet, or is that – that’s part of the process that has to be undertaken?---It would be in minutes, meeting minutes. There’s no grand proposal at this point that says, “youth justice officer training will include this, this and this”. It will be in our project plan for the greater reform, but it won’t be – there’s no specific document that I will point to.

Alright. Apart from that which you have – which we have just discussed, is there any other training of any kind that is proposed in relation to workers delivering therapeutic residential care?---There are discussions about how we could best professionalise and up skill that workforce, and have a continuum across our work – our frontline workers who work with young people, from – including youth justice in communities, youth justice in detention centres, and facilities and residential care. So - - -

Just that: discussions? And again, please don’t take it as - - -?---Yes. No, discussions, planning.

Yes. But nothing written down?---No. Well, it will be in minutes from meetings but we don’t have a document that scopes the proposal.

What’s in the minutes of the meetings is that this has been thought about?---Yes.

But nothing has been done to actually advance it just yet?---I guess there has been some research into potential suitable qualifications, I’ve also had discussions with the deputy CEO of the Australian Childhood Foundation. They are bringing on additional qualifications on to their scope in early next year. That would be potentially very, very good for us.

Okay. Well, again, you’ve had those discussions?---Yes.

But just to go back a moment. You said there had been some research?---Yes.

Is that available to us?---Yes. It’s the Australian skills qualification framework documents online in terms of qualifications for suitability for youth workers.

My mistake?---Yes.

I interpreted – well, it’s not the case that Territory Families itself has commissioned research or done research?---No, not commissioned.

Or done any?---Not further than examining what qualifications are available for this work sector.


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Alright?---Yes.

If you just go back to paragraph 18 of your statement, and the second bullet point there you identify the fact that this model involves the auditing and improvement of the physical environment of residential care?---Yes.

Are you able to tell us what has been or what is being done in that regard?---Okay. Yes. There’s – when the out-of-home sector was set up and residential care, there is a – there was an audit mechanism that was undertaken by the contracts and procurement branch which focused heavily on the facilities and infrastructure. Then – and this is what I’ve been told, I certainly wasn’t there at the time – there was a move where the audit and inspection regime moved across to the out-of-home care section as opposed to just in the contract section. And it’s evident to us that, in the last month or since that happened, that the inspection and audit regime has become ad hoc. So what has happened now is that – and this has also been in consultation with the providers and the Children’s Commissioner – we are setting up and inspection and audit schedule and regime with – that will be unannounced visits to all residential care facilities, including Territory Families facilities, and it will be two pronged in that it has the facilities’ infrastructure, cleanliness and also another central focus on the individual needs of the child and the case planning and the individual planning for them.

COMMISSIONER GOODA: Ms Kerr, can I – when you say residential care, is it like out-of-home care in foster families or is it - - -?---It won’t include kinship care or foster families, that would be too intrusive. So it will be where we either have houses where we look after young people or where we contract other agencies or NGOs generally.

So like boarding houses or - - -?---No. Like NGOs that set up houses for individual children that are – probably have more complex needs than some of the children in our care. So - - -

So not with families?---Not with families, no. With – like the programs that were on Four Corners recently.

Okay. Yes.

MR CALLAGHAN: I was going to come back to that sort of topic in a minute. But can I just, before we move on, ask you if you could just elaborate a bit on your discovery that the audit regime had become a bit ad hoc. What were the problems and - - -?---What were the triggers for that.

Yes?---The Four Corners program.

Okay. But do I understand you to suggest, at least, that when the regime was looked at, it was found wanting, if it had become ad hoc?---Yes.


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With what consequences? Specific examples or - - -?---Consequences in terms - - -

Well, what are the consequences of the regime having become ad hoc? Were things – problems persisting that shouldn’t have been allowed to persist?---Well, I have no specific information about complaints or activities, for example. I have visited some of the homes myself and found some of them to be exceptional, and some of the providers to be exceptional and immaculate, and I’ve visited others where they haven’t been as good as we’ve wanted. But there have been no incidents of note that brought our attention to it. It was a matter of we saw the program and then it was, “We need to have a look at our backyard and see how we are going.” And it turned out that we weren’t going as well as we should have been.

Alright. And that’s being addressed now - - -?---Absolutely. As a priority.

- - - in the way that you’ve identified?---Yes. And we – I think it’s even – it’s early next week we are meeting with all of the providers.

And if we can go back to that second bullet point in paragraph 18, whilst I can understand that the audit process or the – we have been talking about the auditing of physical environments. Is there anything that is actually being done at the moment about improving the physical environments of residential care?---Our first meeting with the stakeholders to make our expectations clear will be next week.

So too early to actually - - -?---Yes – yes.

- - - that’s the ambition - - -?---Yes.

- - - moving on? Okay. Well, in terms of things that have to be addressed, can we move to the next bullet point which refers to the development of a workforce plan and staffing models. Are you able to tell us what has been or is being done about those?---This is a project that’s very, very – very much in its infancy. It’s part of the wider election commitment to outsource out-of-home care.

Can I get you to just be specific as you can about what you mean by “infancy”. Because, as you would appreciate, if the Commission is to make recommendations - - -?---Yes, absolutely.

- - - it wants to know whether it is doing it on a blank slate or whether there’s something in train?---So, in terms of the workforce development, it will include the initial training from ACF. There is an intention to bring in a specialist in the field to work with our people to up skill them and our – the agencies that we deal with. But that is as far as it has gone.

Okay. It’s a big issue, isn’t it, because retention of staff is a huge issue in this sector?---It is. Also attracting, and the capacity in the Northern Territory, is extremely difficult.


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Is in there anything - - -?---And it’s not just in the residential care area, it’s in a range of areas. Mental health, forensic mental health.

There are particular challenges in this job that one can understand – or these types of jobs, where you’re dealing with frequently if not usually children who have or who exhibit a wide range of challenging behaviour and - - -?---And, look, I certainly don’t want to demean the workforce and people who are doing it, because there are some really exceptional people out there with very good skills and qualifications. But across the board, yes, it’s difficult to attract, and we need to have a strategy where we can attract and develop and retain.

And retain. Because if you look at the model, at the very top, it talks about – it uses words like “Consistent and stabilising”?---Yes.

You can’t do that unless you’ve got a consistent, stable workforce, can you?---Yes, and well trained.

Yes. Of course.

COMMISSIONER WHITE: And – sorry, Mr Callaghan.

MR CALLAGHAN: No.

COMMISSIONER WHITE: Ms Kerr, is the thinking then that if the whole sector is lifted in terms of expectation and modernity, as is evidence based from research and so on, that you might in fact be more likely to attract better qualified people. They will want to work in a better regulated sector?---That’s right, Commissioner. And that’s across our youth justice and care and protection field.

Yes. That’s understandable. Thank you.

MR CALLAGHAN: I mean, this is a really difficult issue, and there are probably many aspects of it that can be discussed. To get straight to the point that we probably need to understand at this stage, though, I think implementation of the model is in its infancy; that’s a fair statement?---Yes – yes – yes.

Are there, though, any time frames that have been set, or even as aspirational?---Yes, there are. The actual modules in the e-learning context are already online. Well, 12 December, I believe they will be online. So people will be able to access them and use them. There will be facilitated sessions, that will be late January/February, in terms of youth justice officers and we are contracting someone from ACF, exact date is somewhere in March, to come up and start doing some face to face sessions and intense facilitated sessions with our workforce.

COMMISSIONER GOODA: Ms Kerr, how many of these will be – we know the challenges of providing services and even going to the recruitment of staff into remote places in the Northern Territory?---Yes.


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Will there be many of these facilities in remote parts of the Northern Territory?---I – in the very remote parts I don’t think we have any residential care facilities. We tend to rely on kinship care in those locations. And, you know, that’s an area where we, again, need to lift our game, so to speak.

So there would be towns like say Katherine, Nhulunbuy?---Katherine, Darwin and Alice Springs. Yes.

MR CALLAGHAN: I have to ask you this, because it’s going to be something that the Commission will, I anticipate, be addressing with others, experts, academics and so on, and I appreciate you haven’t been in the position long. But if we are to look at the model and see in the column on the right-hand side, it refers to a “positive home-like environment”?---Yes.

See that there? You’ve already yourself referred to the Four Corners program on this issue - - -?---Yes.

- - - not the other one. There are real questions to be asked, it will be suggested – and I’m suggesting to you – whether this is ever – this model is ever going to provide anything like a positive home-like environment because it’s going to involve a number of vulnerable, displaced young people sharing a space together, and the second part of the proposition, which flows from that, I suppose, is given that and all the other complexities, is it really the best model not just for the Northern Territory, but anywhere? Is that – is it something that should be persisted with?---I don’t think it’s the best model. I think that we can have a very good model, but I think it’s part of a wider range of options because there will be some people with very complex needs that there won’t be other options for, and that’s unfortunate.

Sorry, there won’t be other options apart from this model?---So there will be some young people who won’t have kinship care, and won’t be suitable for foster care.

And so this would - - -?---So this may be their only option.

A last resort?---Yes.

A refuge of last resort for a residual number of young people?---Yes.

Is that the way it might be viewed?---Yes.

Okay. Thanks?---And with that in mind, then we have to make it as positive and therapeutic and home-like as we can.

Yes. And with that in mind it’s going to – it’s going to concentrate the challenges. I mean, if it’s only those youth who are left to occupy that space, and you amalgamate a number of them in one space, it creates another set of potential issues, doesn’t it?---They’re not necessarily amalgamated. There’s a – an assessment process to make sure that there’s a fit and match between the young people. And we do have a


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lot of young people who are in family groups, in homes. And we have young people who are in homes on their own. One-on-one placements.

Alright. Can we go back to your statement, paragraphs 23 and 24, and the concept of an intensive family preservation service. I was just hoping that you could elaborate a little on what you mean by a variety of support and interventions in this context. What are you actually talking about?---Okay. So it may be where there’s a family where the children are at risk of being taken into care and, once that’s identified, the idea is to put in an intensive up front wrap around support framework with them. The interventions and programs that might be involved could include, you know, nutrition, health checks, psychological screening, counselling, support. I mean, a mum and bubs program, parenting programs, budgeting. There’s a whole range of programs that could be considered, and it would only be limited by the programs available in the sector.

That was, I suppose, what I was interested in whether that was that degree of flexibility?---Yes, absolutely,

Can you go to paragraphs 49 to 51. There may not be much that needs to be considered here. If I understand it correctly, the critical incident response that you are talking about, is that – are we talking about the same sorts of things that are provided for in the legislation regarding assistance in emergencies?---Yes.

And have I interpreted this correctly, that the plan is that in such a situation now the request is made of the police?---That is - - -

Rather than correctional?---Yes. It will not be correctional officers.

Yes?---It won’t be the IAT or the incident action team.

It will be the police, and they are getting some extra training?---The first instance, it will be youth justice officers supported by the specialists both within the setting and also, you know, the management and the people across Territory Families. In the event that we had a very serious incident then we would call for police support for that.

Alright?---And it wouldn’t require them to have further training, because they already have specialists in these areas.

Sorry, did you say it would not require them or would require them?---Would not.

Alright. What’s the training to which you refer in the last sentence of paragraph 50?---That’s the provision of training resources and templates in general.

To whom?---To Territory Families from Police, Fire and Emergency Services College.


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I see. Alright. Can we move to your second statement, which includes and expands upon some of the points made, I think in paragraph 43 of your first statement. And to your second statement you attached schedule A. That was prepared, was it, as a response to the report prepared by Mr Hamburger?---Yes.

And you would have heard, or read at least, the evidence given by Mr Hamburger in these proceedings?---I saw some of it, and I have read a fair bit of it, but not in its entirety.

Alright. Well, I might attempt to summarise it, or summarise the relevant parts of it. But you will appreciate, of course, it was a lengthy report, he gave evidence for a long time, and what I’m putting to you are - - -?---I have certainly read most of his report.

Okay?---But not all of it.

Well, look, he – in essence, can I suggest to you that there’s a proposal for a need to address youth detention in a new way. Is there agreement with that sentiment in the Northern Territory Government?---Yes.

It would be – I will start that again. Can I suggest that there was some key points –obviously many points made by Mr Hamburger, but some key points. They included, for example, the creation of a statutory authority to supervise detention?---Yes.

And they included the suggestion that there should be a move away from the model of large detention centres?---Yes.

Towards a model that involved the empowerment of Aboriginal people in the process of detention?---Yes.

And perhaps flowing from that the prospect of some smaller potential detention centres on country?---Yes. Not detention centres, I don’t believe.

Well, facilities for people that - - -?---Facilities.

- - - might otherwise be detained, or who are subject to a detention order?---Okay. Yes. An order, yes.

We know what we are talking about?---Well, detention centre versus an order to stay somewhere, to me, are very different.

Facilities, as I say - - -?---Programs, facilities, in locations where people are sentenced to or - - -

Yes?--- - - - as an alternative to remand. Yes.


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Yes.?---Supported bail, yes.

Alright. Those propositions all emerge clearly enough from Mr Hamburger’s report and his evidence, don’t they?---Yes.

And the Northern Territory Government has had that report since July?---To – Department of Correctional Services has had it. I can’t speak for the former government, I know it was only tabled in mid November with this government.

Alright. Would you agree with the proposition that he advanced that the Northern Territory has, in this area, the opportunity to lead Australia?---Absolutely. If not the world.

COMMISSIONER WHITE: So good to be aspirational, isn’t it?---And we are confident.

MR CALLAGHAN: Well, we have in schedule A some responses to that which was proposed by Mr Hamburger, and for example in response to recommendation 142, expressed in broad terms, but it is in response to that recommendation that we learn that $22 million has been allocated for youth justice facilities. You are able to tell us what that means?---Yes. There has been an allocation of $15 million towards a new facility, not a detention centre, but a youth justice facility in Darwin. That obviously won’t be enough money, and I think that’s acknowledged. The $7 million is for a facility in the Alice Springs area. And, again, that won’t be sufficient money, and it won’t be just a detention centre.

Well, can you just elaborate on that. What you mean by facility? What’s actually envisaged?---Well, it’s probably not dissimilar to what Mr Hamburger’s recommending in it a lot of ways. I mean, I note – I guess a much more integrated facility. I don’t think we can step away that – and say that there will not be a need for youth detention in the future, because there would be - - -

I don’t think anyone’s suggesting that?---Yes. And so – but I see it as being much smaller numbers and much more limited, and only as a last resort for – or in exceptional circumstances. So a facility – and, look, there’s models in a range of places across the world where education, training, development are at the centre of therapeutic approach. That has co-design, that has, you know, Aboriginal people involved as leaders and staff and managers in the programs. That we have, you know, the requisite level of specialists working in there that we can have psychologist, youth workers, counsellor, medical assessments, and that there is probably a continuum or flexibility in the arrangements that are place based, so what happens in the Tennant Creek area might be quite different to what happens in Katherine, or in Nhulunbuy for the Arnhem region, Alice Springs and Darwin. They have different – different client groups, for want of a better word, different people and different issues and needs. So - - -


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Accepting there’s a need for acknowledging differences depending on where they are, are all those things that you started mentioning beginning with education, is all of that planned for these two centres?---No. These centres aren’t planned.

Well - - -?---Because we still have – so we are working towards, you know, the vision, the concept and the philosophy for what youth justice should be for the Territory and obviously we will be awaiting the outcomes of the Commission, the Royal Commission, which the time frame we were working towards was March or April. So in the interim there has been a level of planning with regard to what good or great looks like in terms of youth justice facilities. And it’s very much along the lines of a therapeutic model, and that – and if I can paint a picture, a facility that, you know, you go outside and it has a beautiful garden, and there’s water running, and we don’t get constrained to thinking about, “They are going to counselling so you get put into a room here with your counsellor.” Why couldn’t you go and sit under a Bali hut next to running water, and an environment where people actually feel safe, and feel calm, and it adds to better outcomes for them. I’m – you know, swimming pools, running track, exercise stations, animals. You know, the ideas are not – are only limited by imagination. We want to be able to put in programs that really suit the young people. You know, and it might be small things like we were talking about yesterday with the kitchen garden, or wild care, a whole range of things, but education and employment options has to be at the core of it, so that when we do transition young people out, it’s to something real and not just out the front gate.

COMMISSIONER WHITE: And Ms Kerr, when you were thinking about this, and I realise you’ve had a lot to think about, were there any particular jurisdictions that were drawn to your attention as offering a good model to look at?---Well, yes, Spain has some very good programs like this type of model. It’s called Diagrama. I don’t know a lot about it; I’ve read a little. There is a program in the Territory at Loves Creek, run by BushMob in Alice Springs that has a range of components to this program. The education there is very good, the work skills is very good. It’s run by traditional owners on traditional land. I think there’s a huge amount of positives in that model that we could draw from.

COMMISSIONER WHITE: And what about New Zealand? We certainly have had some recommendations?---I’m sure, from my experience in other sectors, that New Zealand is somewhere that we will be looking at. Yes.

Thank you?---In terms of education we are told that Parkville in Victoria is very good.

Thank you. I see the time, Mr Callaghan. Would it be convenient to - - -

MR CALLAGHAN: Yes, Commissioner. Just by way of guidance, I’ve probably only got another few minutes for Ms Kerr. I’ve had indications by the – from the representatives of NAAJA and CAALAS that they would like to question Ms Kerr. The estimates – I don’t know if there is an update. Can I take it that the earlier estimates given – about 20 to 30 minutes each. So that’s where we are at.


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COMMISSIONER WHITE: Alright. Thank you.

MR O’MAHONEY: I should indicate as well, I anticipate being briefer than that. Maybe in the order of 10 minutes.

COMMISSIONER WHITE: Yes. You will want to tidy up a few things, I’m sure. Could I also just go back to a very mundane topic: I yet again gave the wrong exhibit number to the authority exhibit. It’s exhibit 37, not 35.

EXHIBIT #37 DELEGATION OF AUTHORITY

MR CALLAGHAN: My learned junior just passed me a post-it note to that effect.

COMMISSIONER WHITE: Yes. I shouldn’t be, really, allowed to call the numbers, it is quite clear. Alright. Well, we will resume at 2 o’clock. Thank you, Ms Kerr?---Thank you.

ADJOURNED [1.09 pm]

RESUMED [2.05 pm]

COMMISSIONER WHITE: Mr Callaghan.

MR CALLAGHAN: Commissioner.

Ms Kerr, I was asking some questions about the $22 million that has been allocated for the youth justice facilities. You said, I think in your evidence before lunch, that there was or had been a level of planning. Can you give us the specific details about the planning that has been done in relation to those centres?---Okay. So it’s probably more a comment around conceptualising and determining, you know, what sort of model is appropriate for youth justice in the Territory. And in terms of what is the absolute best in class that we can do. So - - -

So that’s - - - there has been – correct me if I am wrong, please, but there has been considerations to the sorts of policies that should inform the way these facilities are constructed. But what we are talking about is not perhaps what might be understood as planning, as such?---Yes.

Okay. Are they – is the policy consideration then, or the policy ambition, that they should be permanent?---Permanent - - -

Permanent facilities?--- - - - facilities?


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Yes?---Well, certainly the one in Darwin and Alice Springs.

Yes. That’s all I’m talking about at the moment?---Yes.

Those two?---Yes.

And is the ambition or the policy, or whatever you want to call it, that they should be located in a particular place? In other words, are they separate from the existing facilities or existing centres in those places?---We are very definite that they will be very separate from correctional facilities.

Okay. Are they, nonetheless, projected to be residential? That is, to say young people will be living in these places?---Yes.

Okay. But they are not – or the fact that they are being built in centres where there are already detention centres, combined with what you’ve already told us about the way they are envisaged to imply that they are very different from anything that we would recognise as a detention centre as they exist now?---That would certainly be our recommendation.

Do you – I will start that again. Accepting, as everyone does, something that has already been mentioned today, that there will always be a need for some sort of youth detention centre for a certain class of individual?---Yes.

But accepting that, do you agree with the notion advanced by Mr Hamburger that planning for the construction of large detention centres can, in effect, be equated to planning for failure?---Yes.

Because it conveys an acceptance of the proposition that a large detention centre will be needed, doesn’t it?---Yes. And when we refer to a youth justice facility or a precinct, it’s not a detention centre. A detention – accommodation won’t – will be a very small part of it, we envisage.

COMMISSIONER WHITE: Yes. I understood you to convey earlier, Ms Kerr, this morning, that the word “facility” covers almost anything you like to think of?---Yes.

And it means that you’ve got a fair degree of flexibility for your planning?---Yes.

MR CALLAGHAN: And accepting, as we do, what you say about the fact that the planning is in its infancy or perhaps, strictly speaking, hasn’t actually begun yet - - -?---Yes.

- - - it will involve consultation with Aboriginal - - -?---Yes, definitely.

The Aboriginal communities?---Yes. And one of the things that we would like to see in every location is a cultural space that’s developed and informed by the local people.


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Okay. Thank you. Just finally, I just wanted to ask you some questions about the role of an inspector. And I think if we looked at your attachment or schedule A, the very first recommendation, 24. You’ve got a response there?---Yes.

The response indicates that the preference for Territory Families is that the functions of the inspector be built into the functions of the Office of the Children’s Commissioner. That’s the case?---Or a like agency. Yes.

Okay?---So in the event that, as a result of the Royal Commission, that office changes, then perhaps that would be a more suitable location.

Well – alright. So, again, that’s just an in principle - - -?---Yes.

- - - or it’s a - - -?---Well, I – from our perspective we don’t believe that custodial – adult corrections inspectorate should be combined with youth, a youth facility, or youth justice inspectorate audit, because of the concern that there being one lens, and that being corrections, or custodial. So we would like to see something that’s focused on children and young people and with their wellbeing at the centre of it, and that they are driven by the UN principles for, you know, young people in detention. The Havana Rules, and not by some other custodial correctional framework. And the other thing, sorry, is that it can significantly take away from core business when you have a range of oversight mechanisms. So, you know, if your – have the Children’s Commissioner and the Ombudsman, and then a whole range of – you know, any level of inquiry and then we have our stakeholders who we have in terms of the legal services that we want to have a partnership with, and Danila Dilba, so even though they’re not an oversight mechanism as such, they go into the facilities and they raise their concerns for us – to us, which is extremely valuable, don’t get me wrong. But in terms of having an inspectorate and a Children’s Commissioner and an Ombudsman, and a Health Complaints Ombudsman, it can create quite a bureaucracy just to respond to their processes.

Alright. So some thought has been given to that?---Yes.

But I suppose my question was going to be whether the Children’s Commissioner had been consulted about what’s contained in your response that these functions be built into her office?---There has not been a formal consultation, but we’ve had discussions.

Okay. And, indeed, in any case, you now tell us – and again, it’s not a criticism – but you now tell us it’s not necessarily destined for her office, it could be a like agency?---Yes.

So - - -?---And hopefully there’s not two, that’s - - -

Sure. Now, I might have said “finally” before, but you just reminded me on the question of doubling up, you may have heard Mr Hamburger when he was talking about the detachment of detention from Correctional Services to where it sits now


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which is, I think, generally thought by everyone to be a good thing, with the qualification that whilst it’s a good thing as an interim measure, Mr Hamburger identified the potential for conflict. As in, the situation where the department to which a family might look for support is also the department that’s responsible for the detention of one of its children. Has that potential for conflict been considered and – I will ask the two questions: is there a longer term plan for the future of detention responsibilities?---I guess, firstly, on that point I didn’t agree with Mr Hamburger.

Please tell us why?---Well, because youth justice does not take children away. They are arrested by police and detained by the courts. The youth justice looks after them once they’ve already been taken.

Yes?---And in terms of that - - -

..... keeps them there, though?---Well, yes. On the other side of it, though, if you look at the former DCF Children’s Families and Welfare, I think – you know, it – they have a much, much higher record of – or stronger record of taking children away. So - - -

Well, that’s a bit of a distraction, though, isn’t it?---No. But

It doesn’t really address the conflict that Mr Hamburger – or the potential .....?---But I cannot see a conflict. He says that this agency that families turn to for support – well, if that, in fact, does happen – you know, should be doing all the warm and, you know, supportive things and then this part of it takes children away.

They don’t take them away, it keeps them once they are taken away?---No. I think that’s what he said.

Well, it does keep them. Well, in any case, whatever he said - - -?---Yes.

- - - it is the case that the department will be keeping children in detention?---Yes. We will – we will be, yes. And we will also be keeping - - -

Away from their families?---No, not away from their families.

Well, if they are in detention they are aware from their families?---Well, as is Resicare and foster care, and kinship – other – well, kinship care is a bad example. But foster care, residential care, a whole range of out-of-home cares keep children out of their families as well, and the client group is often connected and the same, and the families are often connected and the same, and what we want to do is have a through care model where we can – well, firstly try to intervene to prevent children coming into care and the youth justice system, but when they do, rather than having a siloed approach across the whole system, we want to have a seamless approach. So that if you have a case worker or a psychologist, you still have that person in the


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youth justice system and your education in the youth justice system goes back out when you’re into community or care, as do your psychologists and case workers.

So the benefits of efficiency - - -?---Not efficiency, it’s good, quality therapeutic care.

Well - - -?---With - - -

You don’t accept that what you’re advancing has some efficiency to it?---No.

I was going to suggest - - -

COMMISSIONER WHITE: Mr Callaghan, that’s – I’m going to protest before Mr O’Mahoney: I don’t think that was the point at all.

MR CALLAGHAN: Well, “efficiency” might be the wrong word.

COMMISSIONER WHITE: Well, efficiency is good. We are not into inefficiency.

MR CALLAGHAN: Quite.

COMMISSIONER WHITE: I mean, if it’s - - -

MR CALLAGHAN: And if I had been allowed to finish I was going to say that the efficiency, or whatever word you want to use, of that model – you would say – outweighs any of the potential for conflict identified by Mr Hamburger, even if – and I understand you say it doesn’t exist – but you would say it was negated by the benefits of doing it in the way that it’s being done now.

MR O’MAHONEY: I object to the question, Commissioner. I’m in part picking up on what you’ve already observed, but in part as well picking up on what appears to be the premise of the question, that the witness has accepted the existence of the conflict.

COMMISSIONER WHITE: I think Mr Callaghan knows that Ms Kerr doesn’t accept that. He has built that into his observation.

MR O’MAHONEY: Please the Commission.

COMMISSIONER WHITE: Yes, thank you

MR CALLAGHAN: And the observation, I hope, Ms Kerr, was – I am trying to, I suppose, only – I’m not trying to contradict you, or do anything other - - -?---No. That’s all right.

- - - than make sure I’ve assessed correctly the effect of your evidence, which is, as I say, that the benefits of the way that it’s now being done negate concerns expressed


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by Mr Hamburger?---Okay. So it’s not now being done. It has commenced in some cases and the benefits have been, to date, quite immense in those individual cases. Yes, absolutely.

Yes. That’s all I was trying to get to?---And it well and - - -

I’m not sure how that was controversial?---Well, I would just like to clarify that. It’s not a question of efficiencies in terms of, you know, fiscal budgets or anything like that.

No?---It’s in terms of good quality care.

Yes. The overall delivery of - - -?---Benefits there, yes.

- - - of services. And that’s all I meant. Efficiency doesn’t always have to be financial. Thank you. Those are the questions that I have.

COMMISSIONER WHITE: Alright. Thanks, Mr Callaghan. Mr Boulten.

<CROSS-EXAMINATION BY MR BOULTEN [2.18 pm]

MR BOULTEN: Ms Kerr, my name is Boulten, I represent NAAJA. Just picking up on an issue just touched on: So if there is to be both juvenile justice aspects to your administration and child protection aspects, could they be kept as separate streams as it were, different aspects of the same department?---Yes.

Are there advantages in minimising a young person’s exposure to many different therapists, practitioners, and the like?---Absolutely.

Is there a way to case manage across both?---Yes.

The youth protection sector and the juvenile justice sector?---Yes, that’s – we think so.

How do you think you could do that?---Well, for example in terms of the youth justice sector and detention, there’s actually a small number of young people in there. So bringing their whole case with them and their people with them, and their therapists, etcetera, I don’t see that as a challenge at all. In terms of processing governance arrangements, if we have care and protection as one part and youth justice as another, then in between there’s an operational support area that helps bring it all together and works across them. Working in one agency gives us a lot of advantages in terms of training and cross training and professional development as teams, case workers teams. It doesn’t mean that if we have – a care and protection case worker for a young person that goes into detention that they won’t still have the regular case worker or youth worker in there that’s supporting them, but there’s an

.ROYAL COMMISSION 8.12.16 P-505 J.E. KERR XXN©Commonwealth of Australia MR BOULTEN20708521

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expectation that there will be case management meetings involving a multi-disciplinary team and that their case worker from care and protection, and family, and legal services, and health services are involved in that.

Would that involve sharing of data and information in systems - - -?---Yes.

- - - about each young person and child?---Yes.

COMMISSIONER WHITE: One of the problems, one would think for young people, of course, is building up a degree of trust with those who come to counsel and assist them. So certainly from our perspective it has been a bit dismaying to see how siloed, to use the popular expression, it has all been. So they’ve got to get to know somebody new when they go into youth detention from those, perhaps, that they’ve been exposed to in child protection?---Yes. And even within the child protection there’s a history of multiple case workers on every new notification. And they may not – they are often not the same. And – so that is also a reform outcome that we are looking towards.

MR BOULTEN: Given the problems of attracting and maintaining people in positions, that’s aspirational perhaps, but as a matter of theory, protocol, policy, minimising exposure to experts, therapists, to maintain continuity, is a goal?---Yes.

Alright. Got it. One of the other big themes Mr Hamburger spoke about was the idea of empowerment of Aboriginal people in the youth justice system. And he talked about turning everything on its head, giving recognition to the fact that 95 per cent of people in Corrections custody and 97 per cent of kids in juvenile detention are Aboriginal?---Yes.

Means making that the focus. Can that be done with a government department as opposed to a private Aboriginal controlled model?---I don’t believe it can be done by a government on their own, and I also don’t think it could be done by a privately controlled agency on their own, or entity. It would – in my mind it has to be co-partnership, co-design.

Co-design means consultation, people being involved. But what do you mean by - - -?---No. More than that. It’s more than consultation. It’s actually developing and implementing together.

What does that mean structurally? How do you achieve it through governance models? What have you got in mind?---Okay.

Even just generally. We know this is all - - -?---No – no, in general terms. Well, there’s obviously a range of peak organisations and then there’s some – in each location there is some very clear Aboriginal organisations that have been there a long time, that are well respected, that run, you know, fantastic programs and they are clear that they are the people in at least some of the occasions that we should be partnering with. And then in terms of something like – this is happening in Alice


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Springs, in Loves Creek. I mean, it’s a model very much like what Mr Hamburger referred to. So the actual running and management of that – and, look, it’s not ideal – of that camp at Loves Creek is run by the local traditional owners. It’s not run by us. We support it, we enable, we obviously have an oversight role, but we don’t run it.

Who will run the facilities in Darwin and Alice Springs?---I don’t know.

What ideas have you got to empower Aboriginal people in those locations?---We would be partnering with agencies, Aboriginal organisations. In Darwin – perhaps it will be a different model for Darwin. I mean, there’s a much higher proportion of non-Aboriginal clients in Darwin than anywhere else. In terms of what happens in other locations, it’s really just dependent on a whole range of things, including the outcomes of the Royal Commission, who our partners will be, what they want to see happening on the ground. And the people in Arnhem Land might want something quite different and see – have solutions that are quite different to what we see in the Barclay.

Do you see advantages in – at least in regional or remote areas for the sort of public-private partnership that was envisaged by Mr Hamburger?---When you say “private”, is it referring to commercial? A for profit?

Well, you could discuss either community-based, not-for-profit organisations or you could discuss the multi-national, highly commercialised, now much more prevalent private providers that we see taking over correctional facilities throughout Australia. Which – what do you have to say about that?---And this is - - -

Or both?---Yes. I think that a community government partnership is – and NGOs is important and essential. I’m not attracted to the idea of commercial entities where the profit is the driving force.

So an appropriately established, well-governed, audited, non-government organisation, Aboriginal controlled, you see as being a proper mechanism to run accommodation, residential, juvenile justice facilities in remote parts of the Northern Territory?---Yes. And we are already doing that in Loves Creek. We support that, we fund that, and we think it’s a good model.

In relation to child protection, do you see a future where the Northern Territory has an Aboriginal child care agency?---Child care as in care and protection – like the - - -

Okay. So you are not quite sure what I mean by an Aboriginal child care agency?---No.

So the Commission has received evidence that there are Aboriginal child care agencies in most other States and Territories in Australia and the Victorian one is a very, very effective model. You might have a look at the evidence of the director of the child care agency from Victoria who gave evidence here two months ago. But


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essentially it’s an Aboriginal-run, Aboriginal-controlled government organisation which handles the care and protection of Aboriginal children sitting alongside the care and protection of other kids that are looked after by the mainstream service. So what do you think of that idea?---I think it would be a mainstream service, not a - - -

But you are - - -?---Sorry.

- - - the mainstream service?---Not, you know - - -

So what about Aboriginal control of child care and protection in Northern Territory?---In terms of the senior executive and the leadership of that agency?

Yes?---I think it would be wonderful.

And where it’s driven by Aboriginal – by Aboriginal community formulated policies and practices, localised, amended suitably geographically - - -?---To each location.

- - - to each location?---I don’t have any concerns, but I would say that it is different in many locations and what’s really successful in Victoria may not be a good model for the Northern Territory. I’m not saying the principles aren’t, and I’m not saying we won’t look at it, but I just get concerned sometimes when we try and transplant agencies from one country or jurisdiction to another, particularly into the Northern Territory, when there’s not an evidence base for it.

So the big difference, of course, between all of the other States and Territories and this Territory is that the kids who need protection are overwhelmingly Aboriginal kids. So what is it about that difference that makes it problematic, do you think?---The difference about them being Aboriginal?

The fact that here – not everyone, but nearly everyone in custody and the vast majority of people, young people and children who are in need of care and protection, are Aboriginal - - -?---Yes.

- - - is what marks this place out as significantly different than the rest of Australia. Where in those places they have a specialised service for Aboriginal kids - - -?---Yes – yes.

- - - does that not suggest that the care and protection facilities – sorry, care and protection system should actually be driven by Aboriginal people in - - -?---Yes, I – I’ve already said. I think that’s a – that is a wonderful idea. I would love to have and see Aboriginal CEOs, executives, case workers, managers running this business. And many others.

Is your government putting this on the agenda, the establishment of an Aboriginal child care agency, or is it something that’s been considered previously and rejected and will not be returned to?---I haven’t – well, I am not aware of it being discussed and I’m not aware of it being put on the agenda and rejected. The concept – the first


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I’ve heard of it is as a child care agency, purely – purely run, led, services delivered by Aboriginal people, I’ve not – is not a concept that we have considered.

Do you think it’s feasible?---It’s feasible.

Right?---But I would also say care and protection, youth justice are not the only sectors in the Northern Territory where the clients are predominantly Aboriginal. So why wouldn’t we have an Aboriginal Police Commissioner and a police force run by Aboriginal people and education and a whole range of other – you know – domestic violence, most victims are Aboriginal.

So rather than take up the opportunity to answer what probably was a hypothetical question, can I move to a related issue. It’s about therapeutic residential care facilities. Noting what you said earlier today about the steps that are in train to properly audit and train people, are there actually a national set of standards for the provision of residential child care facilities?---I don’t know.

Is there some initial accreditation process for non-government providers of residential care?---I have been involved in discussions on that, but I don’t know if there isn’t actually – if there actually is a process - - -

You would agree - - -?--- - - - for accreditation.

- - - that there ought to be?---Absolutely.

And the accreditation should not just be about the building, and it should not just be about the cleanliness of the facilities, but it should be about the governance of the organisation which runs it. Do you accept that?---Yes.

And then, perhaps, accreditation for those who are to work there?---Yes.

Have you given that any thought?---Or at least a level of qualification, yes.

Sorry?---Or at least a level of qualification.

Yes. So, what about – have you had a chance yet to think about how disruption and naughtiness or wrongdoing by vulnerable children in residential care needs to be considered by police and whether or not there’s an over-policing of children who muck up and sit on the roof, or squirt sauce, or grab something back from the youth worker. Have you thought about that yet?---Yes.

What are your views about that?---I agree that there is over-policing. I agree that there’s unsurety in the sector about what you call police for, and what you don’t, and that there are a number of incidents there, I’ve become aware of, where police have been called and, you know, if it was in my home with my son the police wouldn’t have been called.


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You wouldn’t call the police if they - - -?---No. So - - -

- - - squirted sauce on the table?---No. So New South Wales has a very robust policy in terms of guidance for residential care workers, and I think we need to take this also into the youth justice sector as well.

So they have – New South Wales has a protocol that drives the interaction between youth care workers - - -?---Yes.

- - - and police. So this is a necessary framework for the Northern Territory, do you think?---Yes.

And you said maybe even for youth detention services?---Yes.

So if someone mucks up in youth detention?---Yes.

When to ring the police and when not to?---Okay.

Okay. So this is going to involve a fair bit of training for those people who are working now in youth detention facilities; right?---It would require some training and guidance, yes. I wouldn’t say a “fair bit”.

So this is a hot area at the moment?---Mmm.

You follow it in the newspaper, we watch Four Corners, we are here in a Royal Commission about it. Do you think that the people who are actually working in Don Dale or in Alice Springs are able to come to a new dawn or an enlightenment about therapeutic processes in detention?---Okay. So I won’t answer it in blanket terms, because it wouldn’t be fair to the staff there. There are some exceptionally good staff there, and there’s a lot of passion about what they do and commitment, but it would be fair to say that we need to have a high level of professional development for those people and a professional development pathway that gives them a whole range of different skills or enhances the ones that they still have – they already have. And some of that is not just about training, some of that is about leadership and modelling.

It’s important to get the right people in place, isn’t it?---Yes.

Can I ask you about youth probation and supervision officers. With the establishment of Territories Families – Territory Families, with your responsibility now for youth justice, who is going to look after the probation and parole services or Community Corrections officers?---That will transition over to Territory Families and negotiations will be commencing on that soon, about how that will work.

Is it your view – and it’s all yet to be organised, I know – but is it your view that probation officers or community corrections staff who deal with children or young people should be specially trained as such?---They – I certainly agree that they will


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need training in youth work, you know, dealing with young people with trauma, etcetera, same as all of our frontline workers. Yes.

But shouldn’t there be people with special skills identified to deal with children wherever possible?---Yes.

So what do you say to the suggestion that in places like Darwin, Katherine, Alice Springs, Tennant Creek, or centres where there is significant dysfunction and a large number of children in trouble, that there should be specialised probation officers dealing with children and only with children in those particular locations?---I agree that there should be specialists in terms of dealing with children. I’m not convinced that they need to be specialised probation and parole officers to deal with children.

What do you mean. What’s the – perhaps - - -?---Well, for example, in Nhulunbuy at present there’s three young people with a Community Corrections order and I would – can’t see why we couldn’t have a more generic model where case workers from the Territory Families office in Nhulunbuy undertake that function.

Instead of the probation service?---Yes.

Okay?---Well, youth justice is in Territory Families.

Right?---So we have a lot of workers across the remote areas, and it would enable them to be people on community, living there, knowing the young people, to actually do that work. As opposed to flying someone in from Darwin or - - -

Isn’t it the flying in and lack of connection to place that causes the biggest difficulty for those people?---It’s certainly a difficulty.

And the need to have more Aboriginal people playing those roles. Do you agree that that’s a really important - - -?---Yes, I do.

- - - thing? I want to ask about the youth early intervention boot camp that was put into operation in recent years, operated by Flinders and the YWCA. That took up a lot of the government’s resources. Has there been any evaluation of its success against parameters like the rate of reoffending, or the number of participants that have been able to reengage with their community by going to school again, or back in safe housing in their homelands?---So my understanding is with that program that there probably isn’t sufficient numbers that have completed that to do an evaluation. I can’t talk specifically about that program, because I don’t know about it in detail, but I can say that there’s very strong criminological evidence that boot camps don’t work.

And no one has evaluated this one yet?---I don’t know.

Right?---But my understanding is that very small numbers completed it.


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You told the Commission earlier today about the extent of the consultation that will take place, and has started, about the youth justice facilities. Are you going to ask the youth who get detained there for their ideas?---Yes – yes.

Youth detainees’ induction: do you know if there really is any? When kids turn up and Don Dale or Alice Springs, do you know what actually happens to – so that they can be told what the rules are?---I’ve asked that question. I’m told there is an induction, and that the rules are clearly explained and that there’s other signs up to do that, etcetera, but I can’t say that I actually know that I’ve witnessed it myself.

COMMISSIONER WHITE: Could I just ask you this: we learnt from the acting principle at the Tivendale School at Don Dale that the vast majority of young people who come into their care are functionally illiterate?---Yes.

Now, I noticed – and I know it wasn’t evidence gathering, but I did notice that there were many signs around, written in relatively small print, and you and I would be quite challenged by it?---Yes.

And using – not impossibly complex sentences but, nonetheless, needed some care to absorb them and some were up a little bit high. So signage of that kind seemed to us, I think we both agree with that, that it was not particularly helpful to remind the young people about the rules of the place?---Yes. I agree. It would need to be sitting down with the youth worker, a case worker, or someone who does the induction, and going through with them. We have, like, for example, the plain English version of the restraint policy, and you couldn’t do it just once, there would have to be ongoing reminders. Yes, I agree.

MR BOULTEN: So would you be able to put in place some inquiries or - - -?---Yes.

- - - some auditing of this process, because there has been evidence already that kids reckon they don’t get told?---And I’ve certainly been aware of comments like that, and it is certainly on the program of works.

COMMISSIONER WHITE: And part of that may well be that the evidence would suggest that they are in a state of shock when they go in. So an induction program then and there important, but obviously hardly retained at all?---Not – not sufficient. And should involve interpreters as well.

Indeed. Yes.

MR BOULTEN: Do you see a problem with independent organisations like NAAJA or CAALAS or the Legal Aid Commission providing advice, lessons, courses to detainees about their rights in detention?---I don’t see a problem at all.

And do you - - -?---I think it’s essential.


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- - - think that should be encouraged?---It’s essential. It’s an opportunity, and I think it’s already happening.

It’s back happening, perhaps?---Probably – it’s back happening, okay. Yes. I – I accept that. Absolutely, and Children’s Commissioner and health agencies agree completely.

In paragraph 53 of your statement there’s a series of services that are listed, all of them very, very worthy and worthwhile. A lot of them – maybe all of them, I’m not sure, are as it were, brought in. They are not departmentally provided, they are sometimes voluntary. Whilst I’m on my feet, the cooking program is actually conducted by one of NAAJA’s workers every Sunday, out of the goodness of his heart. He goes there and runs the cooking program. So the question is: are these sorts of services something that you think should be the responsibility of your department as a core aspect of the detention facility, or let’s call it the youth justice facilities, that you are administering or will administer?---I mean, obviously we will have oversight responsibility to deliver the appropriate programs. I do see value in working with volunteers. I was alarmed to hear that that program was based on the goodwill of a volunteer and that that person might be leaving, and so - - -

He is?--- - - - and so that’s something that we can’t let happen. I mean, we obviously need to fund and support that; I agree with that completely. But I do – I’m also – I think there is a lot of benefit in terms of volunteer involvement with young people in detention and outside of detention.

Mr Hamburger told the Commission the other day that those sorts of programs are often discontinued because of budgetary constraints in order to maintain clothing, maintenance of the facility and other infrastructure costs, yet the criminogenic effectiveness of a detention centre or a facility is linked significantly to these sorts of programs; do you accept that?---Absolutely.

Do you think that these are expendable?---You can’t genuinely commit to a therapeutic model and not deliver programs, appropriate programs, that match criminogenic needs. So, no, they are not expendable.

Can I ask about restraints?---Yes.

The Parliament moved – sorry, adopted a bill last week. But in a context, are you aware of the legislative history of the laws governing restraints over the last 12 months in the Northern Territory?---I’m aware that the Commissioner of Corrections had the delegation to determine what restraints were appropriate or not.

Okay?---And that was changed with the implementation of this bill.

The – there was a bill that was passed in May 2016 which expanded the ability of officers of the department to use a range of restraints. Previously, their use was statutorily confined to essentially emergency situations and where there was a danger


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to a detainee or to somebody else, and only so long as the danger was continuing. But in May this year most of those conditions were removed by the Parliament, and in December this year the Youth Justice Act was amended really on a quite narrow basis, essentially and most importantly, to remove restraint chairs as being an appropriate form of restraint or a legal form of restraint. Will you do a review to ensure that the Youth Justice Act, or whatever it’s going to be called in the future, confines the use of any restraints to emergency situations where it is necessary to protect somebody and only during the course of such an emergency?---My understanding now is that, with the exception of escorts, that is the situation.

That might be the way it’s being administered - - -?---Okay.

- - - - but the Act isn’t limited to that. Would you look at that, please?---Well, yes. Won’t – it will certainly be part of the rewrite of the Act will be done by a very wide group. But – won’t ultimately be my decision, but I would support that.

That’s all I have to ask. Thank you.

COMMISSIONER WHITE: Thanks, Mr Boulten. Thank you, Ms Graham.

<CROSS-EXAMINATION BY MS GRAHAM [2.54 pm]

MS GRAHAM: Ms Kerr, could you have a look at paragraph 53 of your statement?

COMMISSIONER WHITE: Ms Graham, it might be helpful to Ms Kerr who may not recall who you appear for.

MS GRAHAM: Of course, Commissioner. Thank you very much.

I appear for CAALAS. The Central Australian Aboriginal Legal Aid Service?---Thank you.

In the provision of services and programs to youth in detention, is it the case that Northern Territory Families are committed to providing an equal level of service to those in Central Australia as compared to those in the Top End?---Yes.

Are you aware that that has been one of the failings of Northern Territory Families or its predecessor equivalent?---You are referring to the Department of Corrections?

Yes?---I actually do not know the history of it, in terms of what programs have been delivered, but I know there are a greater range of programs in Darwin.

And so when you set out the programs in paragraph 53 of your statement - - -?---Yes.

.ROYAL COMMISSION 8.12.16 P-514 J.E. KERR XXN©Commonwealth of Australia MS GRAHAM20708521

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Would it be fair to say that you’re not suggesting to the Commission that all of those services are available at the Alice Springs Youth Detention Centre?---That’s right.

So are you aware that DAISY, the drug and alcohol program you mentioned, is only available in Darwin?---No. I wasn’t aware of that.

And are you aware that the Step Up program, which you mentioned there for violent or aggressive behaviour, is only available in Darwin?---No. I wasn’t aware of that.

And in relation to the Elders Visiting program, are you able to assist the Commission about whether that is operational in Alice Springs?---It’s supposed to be operational in Alice Springs.

Do you know whether or not - - -?---But can I just say that there is a distinct difference between the population in Alice Springs and in Darwin.

It’s smaller in Alice Springs, isn’t it?---And there’s only one person, young person in Alice Springs sentenced. The rest are on remand, and that can be for a number of days. So – so some of the programs may not be able to be delivered.

COMMISSIONER WHITE: Ms Kerr, I thought that there was a distinction between what you refer to in paragraph 53 and – in the first part, and then the second part where you say the following programs are also available to sentenced youth only?---Yes – yes.

So I understood that the first tranche were available to those on remand as well as those who have been sentenced to a term of detention?---Yes, they are. But those on remand, it’s often for an indefinite and short time. If they were remanded for longer periods, programs would be more available. But - - -

But that’s the same across - - -?---Yes – yes.

- - - across the country, isn’t it. The difficulty with managing remand prisoners. Yes. Thank you. Sorry, Ms Graham.

MS GRAHAM: Not at all, Commissioner. Just returning to the Elders Visiting program, are you aware of when the last elders visit occurred at Alice Springs?---No.

Could I take you, then, to the Balance Choice program, which is a life skills program you mentioned. Are you aware that’s not available at the Alice Springs youth detention centre?---No. I’m not.

And the Red Cross youth detention activity program. Are you aware that that’s not available at the Alice Springs youth detention centre?---No.

Similarly, the Equine Magic program. Are aware that that’s Darwin-based only?---I’m aware that that’s Darwin-based only. Yes.


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You’ve also mentioned a yoga program that has recently - - - , just recently commenced in.

Commenced. And that’s only in Darwin, isn’t it?---Yes.

That’s provided by a volunteer; is that right?---I didn’t know that the person was a volunteer. They may be.

In terms of the individual sexual offending program, are you aware that that’s something that’s only available in Darwin?---I’m not aware, but that wouldn’t surprise me.

I think you gave some evidence earlier that you may be able to access some records to indicate the level of participation of youth in these programs, and it appears that the Commission might be greatly assisted by you being able to provide that?---Yes.

- - - information. But do I take it that you are not aware, either from records or other information from your staff, about the level of participation of young people in the Alice Springs Youth Detention Centre in for example, the Seed program?---No, I’m not.

In relation to the CHART program, and this is one of those other programs for sentenced youth, beyond what you’ve indicated in your statement there, do you have any other information about its operation in the Alice Springs Youth Detention Centre?---It would be unlikely, with only one sentenced prisoner in Alice Springs – or detainee.

Are you familiar with the need for that program to be run by someone who has specialist qualifications as a case worker or youth worker?---I think, yes, that would be clear.

And are you aware that that position in Alice Springs has been vacant for a number of years?---Yes. I’m aware it has been vacant for a number of years, but I believe it has recently been filled.

When was that filled?---I can’t give you the date. But, yes, I was advised yesterday the case worker position in Alice Springs was filled.

You must be aware of Mr Hamburger’s findings that there are in fact no therapeutic programs available in the Alice Springs Youth Detention Centre?---I wasn’t aware of that, no. And that would have been at the point in time when - - -

As at - - -?---Yes.

- - - at the time of his report?---Yes.

Yes. Which is only some months ago?---When it was tabled – delivered, yes.


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COMMISSIONER WHITE: So it would really be a bit more than some months ago, inasmuch as he handed it over on 31 July, but he did his investigations in respect of those things, I think, in May. He just did a quick follow up for other reasons in Alice Springs. So it’s six or seven months ago now, isn’t it?

MS GRAHAM: Yes. Thank you, Commissioner.

COMMISSIONER WHITE: A lot has changed since then, Ms Graham.

MS GRAHAM: Some things have changed, Commissioner. Even where a program is available in a youth detention centre, you would be aware that there can be a number of barriers to a child’s participation in such a program. I think you’ve mentioned already issues like the need for interpreters at induction, the Commissioners have raised issues of literacy and so on. Are you aware of any audit having been done of the programs that are offered and an assessment of the barriers to participation for youth in detention?---No. I’m not aware of that being done.

Are you committed to conducting such an audit?---We are committed to doing an audit across the full range of activities, programs, property, everything in youth justice, and we are hoping to use some interstate people to do that so that we have a benchmark for Territory Families going forward. So, yes.

I want to ask you some questions, now, about the transfer of young people from Alice Springs to Darwin. Are you able to tell the Commission what the current Northern Territory Families policy on the transfer of young people is?---Okay. So it’s a – it’s still a Department of Corrections policy. It hasn’t been – well, we haven’t rewritten and reviewed all policy yet. There’s a policy direction that young people from Alice Springs are not to be transferred to Darwin where they can be accommodated, and there is space, in Alice Springs. It would only be in exceptional circumstances, and it should be only after consultation with the general manager and myself. So it cannot be made at a local level.

At least as recent as November of this year - - -?---Yes.

- - - was there a policy that where a child is on remand for at least two weeks, that they are automatically transferred from Alice Springs to Darwin?---There is that policy.

That’s still the current policy?---That’s the policy, that has been overridden by a policy direction, but the actual physical policy hasn’t been revised yet.

And does the new policy direction – does it contemplate consultation with the child proposed to be transferred?---And their family and their legal representatives.

Have there been any transfers of young people from Alice Springs to Darwin since that policy direction has been in place?---There have been two young people transferred in November and it was – the policy direction was reaffirmed and made


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much stronger as a result of that. And that was – from discussions with CAALAS and consultations, we became aware of that. And I’m not saying that, you know, that any direction was defied, I just think it was a lack of clear communication.

You would appreciate that the transfer of young people from Alice Springs to Darwin is undesirable for a number of reasons?---Yes.

One of those reasons is that it can make it much more difficult for any assessments to be done for proposed bail options. Do you agree with that?---Yes.

And of course there’s the dislocation from family. There’s also the issue of the young people being transported using the commercial airlines and taken through the airport in handcuffs. Are you familiar with that being the ordinary procedure?---It may have been the ordinary procedure. There is a revised restraint policy.

Do I understand your answer to mean that the children are not handcuffed?---No. The restraint used would have to be based on a risk assessment, and even if they were handcuffed – if the risk assessment determined that – then I would think that there would be some recognition of their dignity by concealing that as best you could.

That’s what you would hope would be the practical application of - - -?---Yes. And perhaps that needs to be enshrined in policy too.

Is that an area where perhaps there needs to be another policy direction?---I would have to actually go and look at the facts, and see how often does this happen, has it actually happened recently.

You’ve talked a lot about having a through care model that is not siloed and that has a seamless approach to it. One of the other difficulties with transferring young people from Alice Springs up to Darwin is that if they are in Darwin, and they are being connected with assist services up in Darwin, they are not necessarily the same services that will be on the ground upon their release?---Yes.

Do you appreciate that difficulty?---Yes – yes.

Are these the sorts of issues that Northern Territory Families are committed to consulting on and engaging with legal aid agencies on and the other stakeholders to try to ensure improvements in the future?---Territory Families is absolutely committed to keeping young people where they live, near family, on country wherever it’s possible. And we will certainly be consulting across, you know, all policy, infrastructure programs and other programs that we put in place.

When consultations have occurred in the past between Central Australia and people based in the Top End, are you aware that there have even been quite, what we might say, simple barriers to that consultation being effective, like video links not working and people not able to hear each other?---Maybe. I guess that’s a potential.


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The distance between Darwin and the other main centre of Central Australia, Alice Springs, is one of the key challenges in providing a Territory-wide service; do you agree?---Most of the recent consultations we’ve done in the Centre, we have flown down and done them face to face, and we have a large Territory Families office in Alice Springs. That would be our preferred. Distance is a barrier, yes, for us, but not just with Alice Springs. But I think that we both – we have a very strong footprint in Alice Springs and on the necessary issues we will go down and consult, as we have recently.

I want to just ask you some more questions about the induction process, and generally in the youth detention or youth facility – youth justice facility setting. I wonder whether you might consider, for example, your plain English language restraint document and whether there’s a need for Northern Territory Families to consider other ways of more effectively communicating with young people, using for example diagrams or video content. Is that something that Northern Territory Families - - -?---Or language. Translated into language. Yes. It’s a – it’s a necessary step.

Are you familiar with the term “family group conferencing”?---Yes.

Is Northern Territory Families currently engaged in conducting family group conferencing - - -?---In terms of the model that has come out of Canada?

On any family group conferencing model?---Okay. So family group conferencing, as I understand it, involves a restorative conferencing process that doesn’t involve, necessarily, the victim of it. Where the family in and a range of other people, but mostly the family in a facilitated conversation, come to an agreement or a contract about what, you know, perhaps the person that offends or the perpetrator will do to undertake and what other people in the family will do to – will undertake to do to resolve the situation for restoration, reintegration, etcetera. I’m aware of it. We’re certainly very attracted to the concept of it. It does, at present, have a very limited evidence base and in some cases conferencing has been – has backfired when used in Australia with Aboriginal youth offenders, so we certainly think there’s a place for a model like that, but we would put a very, very robust evaluation around it to be sure that it does work, and if it does then we can expand it and if it doesn’t we can try something else or tweak it. So it’s not just like we are going to take any initiative and implement it without an evidence base.

Are you aware of family group conferencing models being applied in the care and protection space?---Yes.

And are they currently operating anywhere in the Northern Territory?---No.

You’re aware that they previously have in Alice Springs?---There has been a pilot in Alice Springs that different people will say was effective or ineffective. And, again, there wasn’t an evaluation. I’m only aware of a program in Canada that had some success.


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It’s something that Northern Territory Families is committed to developing and in consultation with the Aboriginal communities?---Certainly something we would be considering. And if we developed it and implemented it – and I think there’s a real potential – it would definitely be in consultation and be another co-design area, because it’s not something you can do on your own. But, again, it would have to have a robust evaluation framework.

It seems that now youth justice and care and protection have come under the same broad umbrella that there might be some opportunity for fast tracking some process that need to occur, so that both systems can work successfully; would you agree with that?---Yes.

One of those potential areas is the need to fast track kinship placement assessments for children who are wanting to seek bail; do you agree with that?---I agree with that, and I think that we could take it as far to say that we need to fast track kinship placement assessments full stop.

The central intake team is physically based in Darwin, is that right?---Yes.

And they receive the calls from all of the Northern Territory?---Yes.

You’re aware that there’s often quite a long time that one has to wait before the call is able to be actioned at the call centre. Are you aware of that?---A long time, as in I know that there are times that not all calls can be taken and there is a call back. Yes.

Are you aware that that sometimes means that for example the child who is in police detention is delayed in being able to be processed because of the time taken to call through to the central intake team?---So if a child has been arrested by police and they are awaiting interview or processing, are you saying that if it’s a child in the care of the children and families, or - - -

Yes. That’s what I mean?---Territory Families. Yes. How long – I don’t know how long that takes, but I expect there would be a delay for the - - -

COMMISSIONER WHITE: Are going to suggest a time, Ms Graham, or you are just – are you speaking anecdotally or systemically?

MS GRAHAM: I expect that there may be some evidence from another witness on it, but I don’t have the details to be able to put a specific time frame, Commissioner.

THE WITNESS: Well, I could imagine if someone has been arrested by police and they are waiting to be interviewed and there are Territory Families in the care of the CEO, then and it was 3 o’clock in the morning on Saturday morning, it would take time to get on call people out come and be there. And that could be a couple of hours.


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Do you think that having a call centre also based in Alice Springs to cover the central Australian component of calls might alleviate that delay?---No.

What do you think might be able to be done to alleviate that delay?---Well, firstly I would find out if there is a delay, an unreasonable delay, and then find out what’s causing the unreasonable delay, and then address that.

Is that something that will be looked into in this broad review that you’ve spoken of?---Well, yes, it would be in that.

I just have one final area to ask you about in relation to the expertise that Northern Territory Families is receiving from other organisations, and one of them is the Australian Childhood Foundation. That’s not a Northern Territory based or focused organisation; is that right?---No.

You agree with me?---Yes. I agree with you.

It’s based mainly in Victoria and some of the other southern states?---They do work across Australia, including Queensland and WA.

What steps has Territory Families taken to ensure that it is accessing culturally appropriate expertise and give effect to culturally appropriate models of trauma informed practice in care and protection matters in Central Australia?---Well, it’s not just about Central Australia, it’s for the whole of the Territory, and in terms of our current strategic planning process the number 1 priority, or sign of success, is to deliver culturally competent services that are also client and family focused. So in terms of what we’ve done so far, it’s in the planning stage. We haven’t done that, except for the work with our own Aboriginal case workers. But we are very cognisant that it’s essential and it’s a priority for us.

Thank you, Commissioners.

COMMISSIONER WHITE: Ms Graham. I think it’s you, Mr O’Mahoney.

MR O’MAHONEY: Ms Kerr, I’m just going to ask you a few, hopefully brief questions on behalf of the government. I apologise.

COMMISSIONER WHITE: I’m so sorry.

<CROSS-EXAMINATION BY MS LEE [3.21 pm]

MS LEE: Thank you, Commissioner. I won’t hold my friend up for too long.

Ma’am, I would just like to –

.ROYAL COMMISSION 8.12.16 P-521 J.E. KERR XXN©Commonwealth of Australia MS LEE20708521

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COMMISSIONER WHITE: Perhaps if you too would tell Ms Kerr for whom you appear.

MS LEE: Yes. Thank you, your Honour.

Ms Kerr, I represent three people who have spent time in various detention centres, both in Alice Springs and also Darwin. AA, AB and AC. AA is from Alice Springs, and was also under a long term protection order until the age of 18. I just first want to ask about some of the evidence that you gave earlier this morning. You said that Territory Families is going to embark on a complete rewrite of the Youth Justice Act, and that in your view that was essential?---Yes.

You also went on to say that you planned to use a group of people to inform decisions in the review process?---Yes.

Is that the Youth Detention Provisions Legislative Review Working Group?---No.

No. It’s a different group?---We don’t have an established group yet, but we absolutely recognise that it has to be wide consultation, it’s a really important piece of work. Not unlike the rewrite of the Education Act. And that - - -

Are you aware that – sorry, I didn’t mean to interrupt you?---No. And that went out to schools, families, school councils, and communities. So it will be in that vein.

Are you aware that a Youth Detention Provisions Legislative Review Working Group working group was established in March of 2016?---No. Has it ever met?

No. I don’t believe so. But I understand the Commission will have evidence on that from another witness?---Yes.

With respect, then, to the bill that you said has been the only – well, the only change effected to that legislation – and this is, for the information of the Commission, at paragraph 30 and 32 of your statement – can you indicate what consultation was done prior to the introduction of that bill? That is, prior to 25 October of 2016?---Yes. We had a number of meetings where we provided early drafts, including for the related determination or policy with CAALAS, NAAJA, NT Legal Aid, Danila Dilba, Congress, Tangentyere. In addition to our workforce, the United Voice Union and the CPSU.

When you say that early copies were provided, are you able to indicate how much time was allowed between the provision of those copies and the introduction of the bill to Parliament on the 25th?---Okay. So from the first copy to when it was introduced into Parliament, was probably a couple of months, but that wasn’t the time given to respond. It was – it was – it wasn’t rigid, but it was quite quick, and then we acted on feedback from particularly the legal agencies and the Office of the Children’s Commissioner and Danila Dilba, and we did amendments which we sent


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out again for consultation. We had a lot of face to face meetings in Alice Springs and in Darwin.

Thank you?---And with the workforce.

Now, moving to another area of your statement, that is paragraph 34, which is already on the screen and talks about the at risk management. You say there that there is a review being conducted in conjunction with the Department of Health about managing young people identified at a risk of suicide or possible self harm. Can you indicate to us when that review is expected to finalise?---Okay. So originally the review work was done between Corrections and Department of Health. Then the Department of Health have in the last, perhaps month, finalised their processes and their protocols or guidelines. And now Territory Families, in terms of the youth justice sector, youth detention, are then making sure that ours are in line with Health.

So you don’t anticipate it to be a lengthy process?---No.

Now, I just have some final questions with respect to the support services, and I understand you’ve already given evidence at length about this today, but if I could just ask that paragraph 53 of your statement be brought up. Now, we’ve seen from your statement, and also heard from the evidence that you’ve given today, that there is some difference in what is provided in youth detention in Darwin, as well as Alice Springs, and the delivery of those programs is also affected by the period between adjournments or the periods at which young people are held on remand. Are you able to tell us what effect the young detainees’ security classification has on their ability to access these services?---Yes. To a degree, I’m aware that some high risk detainees cannot do some of the programs.

Does that include education?---No. However - - -

Now, you also indicated early their education and training, in your mind, are central to an ideal youth justice model?---Yes.

Is that something that will be considered further, that high risk detainees are able to access services that will assist them upon their eventual release?---I think the entire range of programs needs to be reviewed. I – there are – there are 14 or 15 programs that are available. I don’t know if there is an evidence base for them or how effective they are. And I think that, you know, we are continuing to do programs and as many programs as we can in the interim, because there are benefits in terms of keeping young people engaged, I guess, or active. But beyond that I think that we need to do a lot of work in that area and make sure that the programs are tailored to the needs of the young people.

Thank you. Thank you, Commissioners.

COMMISSIONER WHITE: Thank you, Ms Lee. Mr O’Mahoney.


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<CROSS-EXAMINATION BY MR O’MAHONEY [3.28 pm]

MR O’MAHONEY: Yes. I’m just going to ask you a few questions on behalf of the government. The first question is, Ms Kerr, you indicated earlier that one of the challenges that Families face is in attracting, developing and retaining staff. And if you wouldn’t mind, could you just flesh that out a little bit for us? How significant is that as a challenge?---Well, I think it’s significant in terms of the youth justice sector, because of the training that was previously available, or not previously available, and the remuneration would be challenging to attract people that want to make a career of working in the youth justice sector. In – look, in other aspects it’s probably not as challenging. However, you know, in remote areas it’s difficult to attract some types of staff in terms of specialists. But that’s not just limited to Territory Families. It’s very difficult across the Territory and, again, not just Territory Families, but Top End Mental Health and Central Australian Health Services to attract forensic psychologists, and especially specialists in those areas.

I was going to come to that in a minute, but in terms of the youth detention space, in terms of attracting – or even child protection, YJOs or case workers, what – is your understanding that one of the sources of the difficulty in both attracting and retaining staff or employees is the challenging nature of the work environment?---I’m not sure.

I should preface this by saying it might be too early to ask you this. I’m very conscious of the fact that you’ve only been in the role for 11 weeks?---Maybe it’s the perception of the challenges of the work environment.

Yes. I was just going to ask you if you had, as at now, a handle on the sort of – the issues that might be making it difficult to retain staff but if you don’t - - -?---I – I –I think it’s significantly around level of pay and conditions, perhaps work conditions, and the level of training and development that goes with that.

And could you just say a little bit more about – you indicated, in response to some questions earlier, it’s very difficult to attract specialist medicos and, for example, forensic mental health nurses and doctors and psychologists to different parts of the Northern Territory. Would you mind just expanding for us – I think you specifically said it was hard to attract such people to Alice Springs. I presume it’s even harder in the more remote areas. Do you want to just say something about that?---Yes. So – you know, when there is a limit of specialists and there’s – you know, great conditions, it’s even difficult to attract enough to Darwin, let alone to Alice Springs, Tennant Creek, Katherine. And whether there’s a need for, you know, a full time forensic psychologist in Katherine is probably questionable, or Tennant Creek for that matter. But - - -

And coming to your – the evidence you gave earlier about the steps afoot to build new facilities, and the work going into the co-design and the functionality of those facilities, you indicated that one priority was meeting the educative needs of detainees within the facility, in other words meeting the therapeutic needs?---Mmm.

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Correct. And then also I think you talked about up skilling or meeting the skill needs of detainees within those facilities. Can we take in part that latter reference to skills to be a reference to trying to arm them with the skills, vocational and otherwise that might assist them once they are out of that facility?---Yes.

With that in mind, Ms Kerr, if I said to you that Mr Hamburger gave evidence to the effect – and I know you didn’t see all of his evidence when he was here the other day – but to the effect that he was concerned that in terms of the new facilities that it might be more of the same medicine. What would you say about that?---That’s not – that’s not the intention.

Would you mind expanding on that answer?---Well, look, I think it’s really clear that the current two detention centres are not suitable, and they have no therapeutic value and we have to do things vastly differently.

They are all the questions, Commissioners.

COMMISSIONER WHITE: Yes, thanks, Mr O’Mahoney.

MR CALLAGHAN: There are enough lines of inquiry still open to perhaps make it worth standing Ms Kerr down rather than excusing her at this point.

COMMISSIONER WHITE: Yes. Thank you. You shouldn’t be alarmed by that, Ms Kerr. It is simply that a number of counsel have asked you for further information and - - -?---Yes.

It may be that that can be gathered up in a note to your counsel, so that they will all be in the one place and it might be we get that from the transcript review. Does that suit you.

MR O’MAHONEY: ..... that’s not a problem, and I’m grateful for Ms Brownhill’s assistance in answering that question or input. Commissioners, if it were possible we would be grateful for – a lot of issues were traversed in – a lot of very fruitful issues were traversed in the course of questions and answers. I did my best to take notes, but I’m not at all confident that I’ve got a detailed note of all of the requests for information or clarification. I would be grateful if Counsel Assisting might assist us and the Commission by making available a list of those requests and we will do our best to collate a response to it.

MR CALLAGHAN: We will do that.

COMMISSIONER WHITE: Yes. We will take that burden from your sagging shoulders, Mr O’Mahoney.

MR O’MAHONEY: They are not sagging Commissioner, but I’m grateful for that. Thanks.

.ROYAL COMMISSION 8.12.16 P-525 J.E. KERR XXN©Commonwealth of Australia MR O’MAHONEY20708521

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COMMISSIONER WHITE: Right. Thank you. So don’t be alarmed. We won’t release you from the notice, just to – saves us sends out another one in case it’s necessary to perhaps bring you back here, but it’s more on the basis that you will be providing further information to the Commission, and we thank you very much indeed for giving us the help that you have today. We are very conscious that, less than three months in the job, we were expecting a lot from you. And I should say that we got quite a lot. So thank you?---Thank you very much. Thank you.

<THE WITNESS WITHDREW [3.34 pm]

MR CALLAGHAN: Mr Goodwin will take the next witness.


MR GOODWIN: Thank you.

COMMISSIONER WHITE: Could I perhaps, just for the benefit – it is 25 to 4 and for the benefit of those who have got an interest in when we rise.

MR GOODWIN: Yes.

COMMISSIONER WHITE: It seems to me that, unless there’s some other reason, we might try and complete Dr Fitzpatrick’s evidence.

MR GOODWIN: Yes. I agree, Commissioner. It is proposed Dr Fitzpatrick will give evidence alone on the joint report prepared by him and Pestell. Part of the reason why she is not available at this stage is that she is completing an assessment of foetal alcohol spectrum disorder for a client at this moment. But, as it is a joint report, Dr Fitzpatrick is able to provide comprehensive evidence on its contents. He is available until 5 pm, if the Commission is willing to sit on until then. I believe we can complete his evidence by that stage. I only have, I believe, three indications of parties that intend to cross-examine Dr Fitzpatrick, and only for short periods. There may be others, but I believe we might be able to finish in that period if possible.

COMMISSIONER WHITE: We can certainly anticipate, I think, Mr Goodwin, that those who are interested in the topic will have read Dr Fitzpatrick’s joint report. If – you know, that might make it a little shorter. But, in any event, we will press on and certainly stay as long as he is available to give his evidence this afternoon

MR GOODWIN: Yes. I’m grateful for that, Commissioner. If I could call Dr James Fitzpatrick.

<JAMES PAUL FITZPATRICK, AFFIRMED [3.37 pm]

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<EXAMINATION-IN-CHIEF BY MR GOODWIN

COMMISSIONER WHITE: Thank you. Please be seated.

MR GOODWIN: Could you tell the commissioners your full name, please?---My full name is James Paul Fitzpatrick.

And your occupation is?---I’m a paediatrician and researcher.

What is your professional address?---My professional address is 100 Roberts Road, Subiaco, Western Australia, 6008.

And you’ve prepared a witness statement for the Royal Commission?---I have.

It’s up on the screen. At the bottom of that page, is that your signature?---It is.

And on the second page, again is that your signature?---It is.

And there are two annexures to that statement?---There are.

The first annexure is your curriculum vitae?---Yes.

And that is five pages. And the second annexure is a joint report completed by you and Dr Carmela Pestell?---That’s correct.

And that is 85 paragraphs with three figures attached at the end of that report?---That’s correct.

I tender that statement and annexures.

COMMISSIONER WHITE: I am hesitating to pronounce the number, but I think that’s exhibit 38, Mr Goodwin.

EXHIBIT #38 STATEMENT AND ANNEXURES OF DR FITZPATRICK

MR GOODWIN: Thank you. If I can take you to your witness statement. It’s correct to say that you’ve worked on foetal alcohol spectrum disorder, or FASD, for a number of years now; that’s correct?---?---That’s correct.

And you completed a PhD on that issue directly?---Yes.

And you’re currently the chair of the Australian FASD Clinical Network?---That’s correct.

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And you’re the director of Patches Paediatrics. Can you briefly explain what that organisation is?---I can. Patches Paediatrics is a child development and early intervention service that provides comprehensive and complex assessments for young people in hard to reach places, such as remote Aboriginal communities, the child protection system, and the justice system. And we have a focus on complex neurodevelopmental conditions such as foetal alcohol spectrum disorders, autism spectrum disorder, global developmental delay, and intellectual disability.

And as part of that work you’ve completed approximately 200 FASD assessments over the course of your career; is that right?---That’s correct.

And a majority of these have been with Aboriginal children and young people?---That’s correct.

And in particular you’ve completed approximately 50 assessments directly for young people and adults involved in the justice system?---That’s correct. You mentioned the Lililwan Project in paragraph 4 of your witness statement. Could you briefly tell the Commissioners what that project is?---I can. The – Lililwan is a Kimberley Kriol word meaning “all of the little ones”, and that’s the name that local Aboriginal leaders in the Fitzroy Valley, June Oscar and Maureen Carter, gave to a prevalence study of FASD among children in their communities. June and Maureen initiated the Lililwan project because they and their community members were concerned that many children were exhibiting behavioural and developmental problems, and the community leaders felt that that may be in association with high rates of alcohol use in the community, including in pregnancy. I was working as a paediatrician in the Fitzroy Valley at the time, and worked with June and Maureen on developing a strategy around Foetal Alcohol Spectrum Disorders, and part of that strategy included measuring the size of the problem, so conducting a prevalence study that we completed between 2010 and 2012 in partnership with Sydney-based universities, the George Institute for Global Health and Sydney University.

I might come back to the findings of that project later in my questions. But if I can turn to your joint report at paragraph 34. The Telethon Kids Institute, for which you also do work, is involved in the Banksia Hill FASD prevalence study in Western Australia, at Western Australia’s single youth detention facility. Could you briefly explain to the Commissioners what that project is and your involvement?---Yes. So the Banksia Hill Study is Australia’s first prevalence study of foetal alcohol spectrum disorders amongst young people who are in detention. It’s currently collecting data, so I’m only able to give very limited information about the process, and no information about the outcomes. But essentially all young people who have been resident in the Banksia Hill facility during June 2015 and 2016 who consented have received a full FASD diagnostic assessment and those data will be analysed in 2017 and reported as Australia’s first prevalence data of FASD amongst the juvenile justice population, and detailed neurocognitive and behavioural and medical profiles of those young people will be reported.


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Are you able to tell the Royal Commission what percentage of that population is Aboriginal or Torres Strait Islander?---I’m not. Partly because I don’t know the exact figure, and also because we can’t disclose any details about the cohort involved in the study at this stage.

But the cohort is likely to include Aboriginal and Torres Strait Islanders?---It is. And a majority of Aboriginal and Torres Strait Islanders.

Turning to FASD itself, can you briefly explain what FASD is?---I can. So FASD, foetal alcohol spectrum disorders, is a condition characterised by pervasive neurodevelopmental impairment in association with prenatal alcohol exposure. It is pervasive; indicates that multiple domains of central nervous system structure and/or function are impaired. Neurodevelopmental impairment indicates that that impairment is significant or severe, such that their function is in the lower 3 per cent expected for their age group. And the association with prenatal alcohol exposure means that there is a documented history of alcohol use during pregnancy, and that other common causes of neurodevelopmental problems have been considered in the process of assessment and have either been excluded or considered as co-contributors to the neurodevelopmental impairment with alcohol exposure being considered a significant causal factor.

And so is it right to say that it’s a form of brain injury?---It is a form of brain injury, yes.

And is it right to say that it’s a disability as well?---The definition of the term disability varies. In our work, yes, it is a disability, similar to conditions such as autism where you have significant impairment in multiple functional domains that impair your ability to function in social, educational and other environments. It’s also a permanent condition, which is a prerequisite for being classified at as a disability.

COMMISSIONER WHITE: And is – I notice you are doing some work with the National Disability Insurance Scheme. Is that in order to ascertain whether it can fit within the conditions that are covered by that scheme?---That’s correct, Commissioner. And the National Disability Insurance Agency commissioned that report because they wanted to consider how FASD may be handled within the NDIS, and we were able to document through our literature review that FASD is a significant disability that affects people across their life course, and that there are therapies and interventions that can improve outcomes in FASD. Therefore, we feel, and we believe that the NDIA also feels, that FASD should be catered for within the NDIS.

MR GOODWIN: And - - -

COMMISSIONER WHITE: And will that – that may very well have some significance for perhaps widespread treatment, or diagnosis at least?---It will. It will be one of the most important policy decisions that the government makes in terms of


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driving FASD diagnosis and therapy because, like autism, clinicians will diagnose a condition if they know that there is the opportunity for funding for therapy services as a result of that diagnosis.

MR GOODWIN: Thank you, Dr Fitzpatrick. In terms of the – as a brain injury, could you explain what functions of the brain, or “brain domains” I believe you’ve called them in your report, that are particularly affected by FASD?---I can. The brain domains, of which there are 10, can be grouped into three functional categories, and I draw your attention to paragraph 27 of my report. Those functional categories, the three functional categories, are neurocognitive functioning, behaviour and self regulation, and adaptive functioning. And within each of those functional categories there are specific subcategories. Neurocognitive functioning includes cognition, or your thinking, problem-solving and practical reasoning capacity; executive functioning, or your ability to perform complex tasks that require different parts of the brain to work in concert; academic achievement, which is impacted by cognitive dysfunction; and memory, or your ability to form and retain memories. The second functional category, behaviour and self regulation, includes subcategories of attention hyperactivity; sensory processing and impulse control; and affect regulation, or the ability to regulate mood and behaviour. The third functional category, adaptive functioning, includes subcategories of language and social communication, and social interactions, daily living skills, and gross and fine motor skills.

And if I can take you to paragraph 3 of your report. It states that the brain injury caused by prenatal alcohol exposure results in multiple behavioural and functional deficits that persist across the lifespan and that affected persons will have difficulty in nearly every aspect of their behaviour. Could you outline to the Commission how the impact on brain functionality of FASD might impact behaviours. What type of behaviours will be present potentially in a person with FASD?---So a useful way of thinking of a response to that question is to imagine the damage that’s done by alcohol as a direct toxin to the developing foetal brain. And alcohol damages the wiring of the foetal brain, and also the neurochemical functioning of the brain and impulse control and self regulation. There are specific areas of the brain that are targeted, including the frontal lobes that result in problems with impulse control, executive functioning, and reasoning. The corpus callosum, or the connection between the left and right brain, which impairs attention and the ability to perform sophisticated and nimble cognitive activities. The hippocampus, which affects the ability to lay down, retain, retrieve and communicate memories. And then some of the other brain regions including the basal ganglia, which is involved in coordination and motor control. So there are structural abnormalities of the brain that then manifest as behavioural problems. The most common behavioural problems seen in FASD, in our own research and internationally, relate to executive functioning – sorry, executive functioning, attention, and self-regulation. So executive functioning means that a person’s cognitive agility is impaired. So they find it difficult and it takes longer for them to take in information to decode it, to interpret it, to decide what to do with it, to plan a response, to initiate that response, and to sustain that response. They also have trouble maintaining attention in environments such as the


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classroom, so their learning is significantly impaired. They have difficulties with impulse control. So there is a concept called the amygdala hijack, whereby a typically developed person will respond to a situation thoughtfully, and after taking a mental or a cognitive pause, whereas people with FASD often don’t take that pause and they will react impulsively. They can often appear wilful and appear oppositional. Then there are the specific problems with cognition. So a young person might have a reduced IQ, they might have a reduced ability to remember things, and therefore to respond appropriately to court orders or to school – school expectations, or even expectations within the community. So there are many and varied behavioural manifestations of the brain damage caused by alcohol exposure in pregnancy.

And I do want to go to the impact that those behaviours might have on potentially increasing a young person’s contact with, in particular, the child protection and youth detention systems. But before we get there, on – in paragraph 6 of your joint report you’ve stated that FASD is a hidden disability and that a person with FASD might outwardly appear normal and that an intellectual – that it doesn’t necessarily only involve an intellectual disability, or might not even involve an intellectual disability. Can you talk through the impact that that would have on a – say a child with FASD and their progression through life? How that hidden nature of FASD makes it particularly difficult for a child?---Yes. So FASD’s hidden at multiple levels. It’s hidden in our systems of care because in Australia we’ve only just started to wake up to the fact that FASD is real, and exists, and is a powerful driver of engagement in systems such as child protection and justice. At the individual level it’s often hidden because young people with FASD can have a variable cognitive profile. They often have areas of relative strength and areas of relative weakness. The areas of relative strength are commonly those relating to their superficial social communication. So as young children and young school aged children they can bluff their way through, because they are often affable, and charming, and chatty. They are often very disinhibited with their social interactions as well which, as a young child, makes you adorable, and makes you someone that isn’t to be worried about. Once their educational and social environments become more sophisticated and more challenging, a gap begins to appear between them and their peers. So their cute social nuances can be seen to be inappropriate and then annoying for their peers, and they start to be separated out socially. Their ability to deal with increasing challenges in the education system mean that they come to the attention of the teachers, who feel that they are falling behind their peers, and they often don’t respond to some of the typical behavioural and educational support strategies. They then become aware of the difference between them and their peers in their middle school years, and this starts to drive a process of social withdrawal, or social acting out, or externalising. So by middle and late school these young people often have done poorly educationally, they have started to have breakdowns in their social and peer relationships, and they may be developing the early signs of mental health problems. Then into adolescence they are more likely to drop out of school, or be excluded from school, and then because of their propensity to want to fit in and to be liked, they will often start to be led astray and be used as scapegoats or be very vulnerable in antisocial behaviour situations, or situations where they may be


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sexually exploited. So the invisibility of their nature starts to be stripped away as they progress through their middle childhood years.

And I don’t want to be flippant, but do their relative strengths essentially trick people who are dealing with those children or young people, or hide the true nature of the genesis of behavioural problems to an extent that it is – that a lack of diagnosis has a major impact on the ability to deal appropriately with those behaviours?---That’s correct.

And is it also true, then, that as some of those behaviours manifest in particular ways, say anxiety or depression through adolescence, there is also a risk of misdiagnosis of other disorders such as ADHD or pure depression, or pure mental health issues?---Yes, that’s commonly the case. And it must be said that in people who are diagnosed with FASD the majority of them are also diagnosed appropriately with ADHD. Many are also diagnosed appropriately with anxiety. So they are not diagnoses of exclusion. However, your point is valid in that often a child development system that’s either not aware of FASD or not equipped to adequately diagnose it might stop at the point of diagnosing ADHD, and not look any further at some of the drivers of that impulsivity and lack of attention, and possible anxiety. So it’s very important that where there – there is screening for alcohol exposure in pregnancy within our health services, and also that there are mechanisms for screening of function and behaviour that can then trigger a referral for a more formal diagnosis.

In your report you’ve discussed the correlation and differences between FASD and trauma, and I want to ask you some questions about that correlation. From paragraph 22 of your report you can see that you’ve defined early life and psychological trauma that can be caused by child abuse or maltreatment as being:

All forms of physical and or emotional ill treatment, sexual abuse –

on the next page –

neglect, or negligent treatment, or commercial or other exploitation resulting in actual or potential harm to the child’s health, survival, development or dignity in the context of a relationship of responsibility, trust or power.

Could you – and then at – I should say at paragraphs 25 to 27 in particular you’ve discussed some of the symptoms common and distinct symptoms between FASD and trauma. Could you explain to the Commission how trauma and FASD might overlap or might not in certain circumstances?---Yes, I can. And a simple way of looking at it is to consider two elements of brain function: one which relates to wiring of the central nervous system and the other that relates to the chemistry or the neuroendocrine biochemical part of the system. So we have got electrical signals being passed through the wires and then we have got chemicals that help to regulate the largely emotional responses to the system. So alcohol is directly toxic to the developing foetal brain and it upsets, physically, the wiring of the brain during foetal


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development. Early life and psychological trauma affects mainly the neuroendocrine or the chemical side of the brain function. However, there is an overlap. Alcohol does also influence to some degree the neuroendocrine systems, and early life trauma, especially in the early years, can affect the wiring. However, the predominant damage from alcohol is done to the wiring and the predominant damage from early life psychological trauma is done to the neuroendocrine system. So what this means is that FASD is truly a brain based condition. So kids are born with a brain that doesn’t work, because of the way the wires are set up. What often happens for children who have been exposed to alcohol during pregnancy is that they are born into an environment that then overlays early life psychological trauma. So it’s a double whammy, as such. And so you will have an exacerbation of the problems of emotional self regulation, attachment, and impulse control in a brain that already wasn’t built very well at birth. There will be a further insult to the developing brain through the early life psychological trauma. But I must say there are more similarities between the two conditions than there are differences, and almost always, when we diagnose FASD, there is also a history of significant early life psychological trauma.

And in fact that’s what you found in the Lililwan Project, isn’t it? So at paragraph 25 you say a majority of young people diagnosed with FASD also had experienced significant early life and psychological trauma?---That’s correct.

And if I can take you to paragraph 32 of your report. And the last sentence starting on the fifth last line, that in fact unpublished data from that project suggested that nine out of 10 children assessed had experienced at least one significant traumatic life event, with most children experiencing multiple significant traumatic events. And would that type of exposure to trauma exacerbate the problems associated with FASD?---It will exacerbate the problems associated with FASD, and it will negate any attempts at therapy and support that might modulate the affects of FASD.

And at the top of that page on paragraph 31, the prevalence of FASD amongst school aged children 7 to 9 years old, in the Fitzroy Valley, was 194.4 per 1000 school-aged children. So that’s about 20 per cent of children who had FASD. That’s correct?---That’s correct.

And so, married with the fact that a majority of those children had also experienced trauma, that would have a very serious consequence on that group of children?---That’s correct.

And that is a particular project in a remote Aboriginal community. In your experience, is that a particular issue in Aboriginal communities? That high prevalence of FASD and trauma amongst those populations?---In my experience, and in examining the literature in this field, yes, Aboriginal communities – particularly remote Aboriginal communities, where there’s a history of colonisation, dispossession of land and culture, exclusion from adequate systems of health and mental healthcare, education, and employment opportunities, high rates of poverty and welfare dependency, high rates of mental health and other problem, there is a


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concomitant high rate of alcohol use in the community, including amongst pregnant women. So there are well described determinants of that state of malaise in some Aboriginal communities, but it’s very important to note that FASD is a condition that occurs in all communities in all postcodes and in all social classes. The particularly high pockets of exposure to alcohol during pregnancy are found in the socially and economically disadvantaged communities around the world.

So essentially you are saying that the environment in which your work in remote Aboriginal communities is – well, the context of those communities, with histories of dispossession and a high prevalence of trauma, essentially means that it is likely that more children will have FASD in that context?---That’s correct.

COMMISSIONER WHITE: You say that it’s the only Australian population based study, of course, and that it’s a fairly – well, it’s not unique, but it’s a very specialised study. Any other researchers, to your knowledge, looking at it in Australia in a more general population group?---Yes. There’s – there are – is a study underway currently that is run by Sydney University and Telethon Kids Institute that is looking at FASD notifications from paediatricians around Australia, in all communities. That study is called the Australian Paediatric Surveillance Unit’s FASD prevalence study. In the past the study revealed very low rates of FASD, and I believe that prevalence was up 0.68 per thousand live births, so vastly underestimating the probable prevalence of FASD in Australia, which is probably somewhere around 2 per cent if we use international or American data as a yardstick. Since then, we have improved our diagnostic capacity in Australia, so we have more clinics diagnosing and notifying FASD. So we expect in the general population those prevalence data to increase, but all of us involved in the field feel that this will still be an undercount, because FASD isn’t being regularly diagnosed in mainstream child development services.

So some of the behaviours, for example, which are the manifestations of FASD, as you and your co-workers have observed, can that be the subject of misdiagnosis by paediatricians who haven’t, sort of, prepared themselves for this kind of observation?---It definitely can. And what needs to happen in Australia is that we need a concerted effort in workforce up skilling. We’ve got Australian – an Australian diagnostic guide to diagnose FASD, that was released earlier this year, and that has been endorsed by the Federal government. We need mainstream child development services to receive training in FASD diagnosis so that it’s something that they look for. Similar to autism and ADHD, FASD needs to be one of the conditions that’s front and centre of their mind when anybody comes through the door with a developmental problem.

MR GOODWIN: And it might be worthwhile informing the Commissioners of the FASD assessment process that you undertake for children and young people?---So I’ve been involved in FASD assessments in a number of contexts. Firstly, in a research context which was a highly rigorous and very time consuming process that we conducted for 108 children in the Fitzroy Valley. That included a paediatrician, a psychologist, a speech therapist and an occupational therapist, as well as Aboriginal


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community navigators who conducted a – our team conducted around four hours worth of interviews with parents and careers and teachers, and then around eight hours of direct testing of young people, and it was a very thorough gold standard assessment process. What I’ve been doing more recently is conducting assessments in a truly clinical setting, whereby we have pared down the assessment team. An example is the current assessment that my colleague and I are doing in Darwin today, which involves a paediatrician and a neuropsychologist supported by an administrative and coordination team. Ideally, we would also have a speech therapist involved in the process. To conduct a comprehensive FASD assessment for a young person, say aged 10 to 18 years in the justice system, requires a well trained team that is supported by a clinical neuropsychologist who can do very comprehensive cognitive and behavioural assessments, and a medical practitioner such as a paediatrician who can look at medical manifestations of alcohol exposure and other potential causes. I’ve detailed in my report the time taken and the approximate expense of those assessments, so I won’t go into detail in that in my response, other than to say that our clinical service model has demonstrated that it is possible to get high quality diagnostic services into hard to reach places such as remote communities at the end of a dirt road, within justice system facilities, or in child protection and other systems in metropolitan and outer metropolitan communities. We have also developed a very streamlined process to try and make it more efficient and keep the costs down, and tapped into mainstream funding sources such as Medicare to offset the costs of these assessments.

And if I can take you to paragraph 4 of your report. You’ve stated that between 10 to 23 per cent of the people in correction and forensic settings have FASD. Would that hold true for the youth detention system in Australia in your experience?---In my experience it will hold true.

And, so, if you have a youth detention system whereby 95 per cent of persons in that system are Aboriginal, it’s likely that around that percentage of that population will have FASD; is that correct?---That’s correct, or higher. So the data on rates of FASD amongst Aboriginal juveniles in detention in Canada indicate that 26 per cent – sorry, 27 per cent of that cohort have a diagnosis of FASD. So in detention systems where there is a very high proportion of Aboriginal residents, the rates are likely to be higher than that indicated in paragraph 4.

And that’s essentially because of what we discussed in terms of the context, where you have a population with particular socioeconomic challenges as well as intergenerational trauma and trauma generally amongst the population involved?---That’s correct.

Generally speaking, what type of environment benefits a child with FASD?---Generally it’s a structured – structured, predictable, calm, nurturing environment, and that holds for infancy, and early childhood, and also in adolescence, and adulthood. The reasons are that some of the functions of the brain that are impaired in FASD can be supported or scaffolded through accommodations in the environment. So it’s good for a young person with FASD to have a


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predictable routine, and possibly the same routine that happens day after day, and that they can have visual aids or other guides that help them navigate their way through that routine. It’s important that they are given time to process information, and that they are given appropriate responses to breaking of rules within that situation, such that a young person with FASD is unlikely to respond well to being chastised or given time out. They might respond better to having their behaviours calmly reflected back to them and having time in or time spent close to a caregiver who can help to soothe them. The feature of FASD relating to memory impairment and difficulty laying down memories means that sometimes young people need to be retaught the same messages over and over again, because they just can’t hold the information, especially when it’s complex. And when information is presented to them, often it’s better if it’s presented in small chunks or small bites, and that there is time given after each bite for them to interpret and process the information. And, similarly, the information is well presented if it’s aided by visual aids not just verbal information. So there are a number of known structural and environmental accommodations that help young people and adults with FASD.

Commissioners, I note that we have been sitting for quite a while and I don’t believe, from the absence of my learned friends from the Northern Territory Government, that there’s likely to be much cross-examination, other than those who have already indicated there is to be some. Is it worth having a short five minute break? And I don’t intend to be more than another 15 minutes. I just note whether that would assist.

COMMISSIONER WHITE: As long as we can be confident that Dr Fitzgerald will be able to – Fitzpatrick, I beg your pardon, will be able to be released by 5 o’clock, when he must be released. So I have an indication from those who might be glued to their chairs whether they would like a break? Go on?

MR O’CONNELL: My name is O’Connell, and I’m co-counsel for AD. I intend to ask a few questions of Dr Fitzpatrick, but anticipate no more than 10 to 15 minutes.

COMMISSIONER WHITE: Unless anybody really wants to leave, I think we might just keep pushing on, Mr Goodwin. I would loathe to inhibit anyone asking questions because we had gone off and we weren’t finished by 5.

MR O’MAHONEY: Commissioner, I should inform you Commissioners that I don’t think I will be longer than 10 or 15 minutes.

COMMISSIONER WHITE: Well, I don’t think you can be, if we will be finished by 5 with everybody else who wants to speak.

MR O’MAHONEY: Well, that’s right.

COMMISSIONER WHITE: And you’ve had your break, haven’t you?


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MR O’MAHONEY: I have, and I’m grateful for that recognition of it, Commissioner.

COMMISSIONER WHITE: Well, what about you Mr Boulten? I come looking for guidance down here the front.

MR BOULTEN: I would like to keep going, please.


MS GRAHAM: Me too, please.

COMMISSIONER WHITE: Right. Well, thank you for looking after our interests, Mr Goodwin, but we will keep pressing on.

MR GOODWIN: I’m grateful, Commissioner. Dr Fitzpatrick, moving on to the child protection system, and considering a child with FASD’s contact with the child protection system, because of all of those potential behavioural issues and the broader context of potential trauma that that child has experienced, what systems are, in your opinion, essential as part of the child protection system to both ensure there is appropriate diagnosis of and support systems for a child with FASD?---So there’s some promising movement in the Western Australian Department for Child Protection and Family services in that the Department has started to recognise that FASD is likely to be highly prevalent amongst children in their care. There are processes in some jurisdictions of screening young people as they come to the attention of child protection be, be they infants or children, and that screening incorporates developmental and behaviour screeners that can then trigger a referral for a formal FASD assessment. So the first precondition for improvement in the child protection system is awareness that FASD is a significant issue, and the second is that there are – and I believe there should be – engineering solutions to this within systems, rather than behavioural solutions, such that it is mandated upon entry into a child protection system that there is a screen for developmental or behavioural problems, be they related to FASD or some other condition. Further to that, it’s important that the Department themselves can fund formal FASD assessments, and that has started to happen in Western Australia. And the Departments are becoming aware that a formal assessment and diagnosis can often trigger funding support from other systems, such as schools, the education system – sorry, the education system, disability services and health. And the department are also becoming aware that a well written diagnostic and therapy report can guide caregiver strategies to improve outcomes for children in their care.

So essentially – sorry to interrupt – but essentially the diagnosis then triggers the support systems that might need to become available to a child in the child protection system and they can be directed to that child in order to assist them to fulfil their potential and to manage their behaviours?---That’s correct. In addition, the therapies and supports and education directed towards the carers often prevents the care giving situation from breaking down. So that’s a potent driver within our child


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development system for having tailored and FASD specific therapy recommendations and training for their carers.

And would that training also be needed by child protection workers who might be working in the system and dealing with those children at risk?---Ideally, yes, because they will be the people that order the assessments.

And in paragraph 40 of your statement - - -

COMMISSIONER WHITE: The report or statement?

MR GOODWIN: The report. My apologies, Commissioner. In paragraph 40 of your report, you mention that the – in the sixth line, that similarly, social, pragmatic emotional regulation, and adaptive functioning problems often experienced by children with FASD further hinder their educational achievement, and that they are vulnerable to premature disengagement from school. In – do you consider that this educational disengagement might lead to an increase in children and young people with FASD engaging in offending and coming into contact with the youth detention system?---Yes, I do. And in part because of previously discussed point about the environments that are protective for young people with FASD, being structured and predictable, and the school environment is a very good example of that. And if young people are attending and being exposed to that structure and discipline, and a rules based environment for a good part of their day, their outcomes – certainly their educational outcomes tend to be better, and their behavioural outcomes can also be better.

And if I can take you back to paragraph 8 of your report. And in terms of that increased contact with the law that you’ve discussed in your evidence for young people with FASD, you’ve stated in your report that the particular problems faced by persons with FASD may make it difficult to follow conditions inherent in standard court supervision orders which may result in unnecessarily high rates of administration of justice related charges. So does that include, for example, breaches of bail conditions and those – is that what you’re referring to in terms of administration of justice related charges?---That’s correct. And in the cohort of young people we see in our justice system assessments, often the administration of justice related charges are a significant bulk of their offending history, and these young people are put at a particular disadvantage because they are less well able to organise themselves and to adhere to onerous administrative and reporting requirements without the assistance of an advocate.

And so your FASD assessment process in the WA justice system, has that been attempting to better allow courts, when sentencing young people, to do that in a particular targeted way?---Yes. That’s correct. And we are requested to provide specific recommendations for therapy and support for this young person in the general community, in the educational setting, and also in the justice setting. And often our advice relates to having advocates, having interpreters, having visual schedules that indicate when young people need to appear for various court ordered


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requirements. Having – using language and communication strategies that are appropriate to the young person. So a lot of the driver of – from the WA justice system relates to their desire to improve their system. And we provide some information about how to do that generally, and also in a tailored manner for the individuals that we assess.

COMMISSIONER WHITE: Dr Fitzpatrick, could you indicate who or what institution was the driver for that alteration in approach to sentencing in Western Australia? Did that come through the Magistrates Court or did it come through some other organisation?---It came through a number of avenues. Definitely through the Children’s Court and the president of the Children’s Court, who is a magistrate in Perth, has been a strong advocate for recognising FASD and responding to FASD in the justice system. It also came from the Chief Justice of Western Australia, and from care givers and parents of young people and also some very vocal and hardworking researchers, including a colleague of mine Raewyn Mutch and also Professor Carol Bower. So it came from multiple angles, but it had to also come from the justice system for the tide to shift. And this year, during 2016, we have seen a huge spike in court ordered FASD assessments and we have been able to respond to that with some diagnostic services.

MR GOODWIN: And you mentioned the services that might need to be provided to a person in an “in justice setting”. I presume by that you mean in a youth detention facility; that’s right?---Yes. In or out of a detention facility.

Well, speaking directly about in a detention facility, what type of health interventions would be required for a young person with FASD?---So the basics need to be taken care of first, so access to primary care services such as nursing and general practice, screening of general health and modifiable medical conditions, and then for these young people who have high rates the mental health and substance abuse and other problems, there need to be specialist counselling and mental health services and ideally treatment services or plans to engage in treatment services upon release. If those conditions are met, then there are more sophisticated FASD specific therapies and supports that can be of benefit. One of the potential benefits of being in a detention – and I can’t imagine there are many – but one of them may be that provision of a structured and regular and predictable environment. However, in my observation the nature with which young people are treated in this facility is far from therapeutic, and it’s often very punitive, and that will not work well for a young person with FASD. There needs to be an understanding and a therapeutic approach regardless of whether they are in detention or in the community.

And essentially why is that? Why is that so essential to - - -?---It is often because of their cognitive limitations in understanding the rules and being able to make plans to follow those rules, and also because of their emotional ability, or their problem with self regulation and emotional control. They will generally respond very badly to highly stressful situations and their tendency will be to react impulsively and aggressively and to perpetuate their trouble. The other possible option is they may disassociate and internalise and withdraw, but that’s equally damaging for a young


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person, particularly in a highly emotionally charged circumstance within a detention facility.

COMMISSIONER WHITE: And could you indicate, perhaps, for how many years this understanding of the contraindicated punitive approach to young people suffering from FASD has been available for understanding by those who operate in this environment?---It’s a relatively new enlightenment, I must say, and our colleagues in Canada are probably more advanced than we are in Australia. And I would say that the interest and emerging body of evidence is probably only five to 10 years old.

MR GOODWIN: If I can take you to paragraph 43 of your report, where you talk exactly about some of those specific recommendations made regarding FASD assessment reports, in the last line you also mention providing “on country and practical diversionary alternatives to incarceration”. Do you mind expanding on what you meant by that in your report?---Yes, indeed. And certainly for young people who are from indigenous communities, where culture and country are very therapeutic for them and they have strong connections to culture and land, alternatives to incarceration are very promising in terms of therapeutic environments that can calm down these chronically stressed and highly anxious and agitated young people, and to take the opportunity to deliver therapies, attachment and trauma based therapies and then more sophisticated cognitive based therapies and also up skilling in some of the strategies for engaging better in education and workforce opportunities. The – anecdotally, I think the best environment for a young person who is tightly wound up and has made some bad decisions and got in trouble, the best environment is probably somewhere that allows them to calm down and to unwind, and then to start to build themselves up in a more prosocial manner. I think one of the worst environments would be a highly charged and highly punitive detention facility where the young person’s arousal state is constantly escalated and where they are very likely to tip over into antisocial behaviour if they’re – if they’re provoked.

And so for Aboriginal young people from remote communities with FASD, it is better for them to potentially be in a therapeutic environment on country to manage their behaviours associated with FASD than, for example, being put into a detention centre in a major city?---It’s my belief that that is the case. There’s no good evidence on which to hang that opinion, but that doesn’t mean that we can’t design and implement some programs and evaluate them and see whether that might not just be right.

Those are the questions from Counsel Assisting.

COMMISSIONER WHITE: Yes, thanks Mr Goodwin.

MR GOODWIN: I believe Mr Boulten.

COMMISSIONER WHITE: Mr Boulten, thank you.


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<CROSS-EXAMINATION BY MR BOULTEN [4.33 pm]

MR BOULTEN: Given the sort of cognitive impairments that flow from FASD, they are likely to impact on the sort of mental functioning which, in the criminal justice system, is actually an element of a charge; whether they are reckless about something, whether they know something, so that FASD not properly diagnosed impacts on the number of people who are being falsely convicted of offences; would you accept that?---I – I – I - - -

COMMISSIONER WHITE: I’m sorry, just – I think there might be perhaps a slightly differently structured question. Perhaps you could relate it to criminal responsibility rather than falsely convicted? Do you think that might be more helpful?

MR BOULTEN: Okay. So each crime has a mental element. It would be necessary for criminal practitioners to know whether their client has an impairment in order to factor that into whether or not their client should plead guilty or not guilty?---That’s correct. And – and the cognitive variability within the FASD spectrum is important to note, because there may be people with a diagnosis of FASD who would still be seen as being competent within the justice system, while there will be another group who are not. So FASD itself as a diagnosis needs to be further interrogated in the process of making those determinations.

In a sentencing context a person’s criminal responsibility impacts on an assessment of the importance of general deterrence, specific deterrence, and on the ability that the offender has to cope with their custodial environment when sentenced to imprisonment. So that FASD is very important in preparing for such a case; do you accept?---I do. And broadening beyond FASD any cognitive cause of impairment should be considered as such.

So practically speaking for a lawyer dealing with a client, even in Darwin or Nhulunbuy or any remote court, how important is it that there be ability – an ability to tap into the sort of diagnosis that you’ve talked about here today?---I think it’s essential in providing a person their right to a journey through the justice system that takes into account their cognitive abilities. And we know that a lot of young people who end up in the justice system have cognitive impairment of various causes, and therefore there should be an engineering or system wide response such that all young people who come into contact with the justice system go through a process of screening for cognitive or behavioural problems and those who are likely to need further assessment are then referred on for further assessment. I don’t believe that all young people who come into contact with the justice system require a comprehensive and high end FASD assessment, but I think a screening process that could then be used to trigger formal assessments would be important.

So the work that is being done at the Banksia Hill Detention Youth Facility involves young people from very remote places in Western Australia, some are people who

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have English as a second language. How effective is – and I know you can’t talk about detail, but how effective is your project in identifying the problems with that cohort in – with the incidence of FASD there?---So one of the well recognised limitations to conducting developmental or cognitive assessments in people with English as a second language, including people – Aboriginal people from remote communities, is the bias of language and culture that’s inherent in most of the standardised assessments that we use. There are standardised assessments that can be used and there are well experienced clinicians who, in my belief, can adequately assess cognition, language, and other function in a culturally and language diverse population. And the Banksia Hill Team are very good at doing that, as with are the teams that I work with who conduct most of our work in remote communities.

So PATCHES reaches out to places like Halls Creek, Fitzroy Crossing, the Pilbara, etcetera?---That’s correct.

Have you seen any significant difference between what you do there and the geographical challenges that are present in providing that sort of service in the Northern Territory?---I see more similarities than differences, and my work over the last 10 years has focused on trying to improve and increase access for people in these remote environments to high quality neurodevelopmental services, and we have demonstrated that it is possible, and we’ve found funding mechanisms that allow teams to run an outreach program. So I strongly believe that it could be delivered in the Northern Territory.

Could you spend two and a half minutes on these financing options, because the government will be very interested to know how it’s going to be achieved?---Indeed. So the total cost of a FASD assessment in a remote community, if the team can assess two to three people per day, approximates three to $4000 per assessment. And that includes coordination, logistics and the travel, and accommodation, and salaries for a paediatrician and a neuropsychologist, and possibly a speech therapist. The funding avenues that we use within the PATCHES model include Commonwealth outreach funding, including the Medical Outreach – Indigenous Chronic Disease and the Rural Health Outreach Fund, that fund flight, flights, accommodation and sometimes a workforce payment for clinicians. That covers most of the costs, and can cover all of the costs in some instances. We also, where we can’t fully cover our costs with that Commonwealth outreach scheme, access Medicare funding. We are currently working with the Health Department to enable FASD assessments to be conducted under item numbers that are the same or similar to autism assessments, which will cover probably a third of the costs of a FASD assessment, and can fund some paediatric psychology and speech therapy input. The other source of funding, which is essential, comes from the referring agencies themselves. So the Departments of Child Protection and Family Services and Corrective Services, and also Education, fund some of this work. So those combined funding mechanisms share the cost of assessments across the different agencies, and often FASD is a multi-agency phenomenon. And it allows high quality teams to move from metropolitan areas to sometimes very remote areas and conduct efficient and high quality assessment processes.

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And does so even using interpreters?---The best model that we’ve implemented was in the Fitzroy Valley, where we had a locally based Aboriginal therapist, who acted as an interpreter and a cultural broker between our high end diagnostic team and the families. And that’s a very cost effective model to support assessment, but also therapy, because we can then train these people up to deliver therapies in the community, and they can be supported by telehealth from a metropolitan or a larger centre.

Is there a residential facility in the Fitzroy Valley that focuses on FASD diagnosis and treatment – diagnosis?---So currently the Patches teams are the only teams providing FASD diagnosis in the Fitzroy Valley. We have and continue to work closely with local Aboriginal organisations, including Nindilingarri Cultural Health Service and Marninwarntikura Family and Children’s Centre. Marninwarntikura has established the Marulu FASD unit and are working on an expanded model of telehealth and FASD therapy and family support. So there is a good model in the Fitzroy valley of local capacity that has been built to support diagnosis and therapy.

Are you aware of the Kimberley FASD Pathways program?---I’m not.

That’s all I wish to ask.


MR GOODWIN: I believe Ms Graham has some questions.

COMMISSIONER WHITE: Yes. Is it the case, Dr Fitzpatrick, that you need to leave at 5 o’clock?---Commissioner, I can stay beyond 5 o’clock. I could stay until 5.30 without any trouble.


MR GOODWIN: A dangerous indication.

COMMISSIONER WHITE: It is pretty dangerous to give counsel more time. But, look, nonetheless – nonetheless, could you bear in mind, if you could, if your questions have already been dealt with satisfactorily, not to repeat them. Thank you. Yes.

<CROSS-EXAMINATION BY MS GRAHAM [4.44 pm]

MS GRAHAM: In one of your - - -

COMMISSIONER WHITE: Ms Graham appears for the Central Aboriginal - - -

MS GRAHAM: Legal Aid Service.

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COMMISSIONER WHITE: - - - Legal Aid Justice Group. Thank you.

MS GRAHAM: In one of your answers you talked about the engineering or system wide proposal for the youth justice system, being a screening process initially for developmental or behavioural problems, and then that might trigger more formal assessments like a complete FASD assessment. You’ve spoken about the experts that might be involved in the comprehensive FASD assessment. I’m just interested in who you would say is the appropriate kind of person to do that initial screening process?---So the screener would involve largely short behavioural questionnaires and that could be administrated by a clinical person, like a psychologist within the Department of Corrective Services, or it may be able to be administered by an administrative officer who has training in administering the screeners.

Could it be administered by a youth justice officer who is specially trained to do that kind of assessment?---Yes. I believe so. Yes.

Or a social worker or case worker could be trained up to be able to do the screening assessment?---Yes. Definitely a social worker, and a case worker.

So if you had someone who was based at the courthouse on, for example, the day that the court deals with a number of the youth matters, they could do that as well as perhaps any other case management activities that they’re undertaking?---I don’t have enough insight into the steps in the process. I would suggest, though, that at the first engagement with the justice system that would be the time that the screening should happen, rather than leaving it to a point where the young person has already actually come before the court.

Do you mean perhaps even at the police stage before they enter the court system?---Potentially, yes.

The earlier the better, is that your proposal?---Yes. Essentially, yes.

I’m just wondering whether you could comment on whether there are any ethical issues for clinicians in terms of making a diagnosis of FASD where there are no treatment or therapies or interventions available to the child?---There are stigma and other issues inherent in making a FASD diagnosis and asking about alcohol use in pregnancy that have been a barrier to screening and diagnosis. But, thankfully, clinicians are moving beyond that and realising that it’s important to screen for alcohol use as well as any other potential causes of brain damage. In any condition there are ethical considerations about making a diagnosis, or performing screening, if – in the absence of any known possible therapy approaches. I don’t think that applies for FASD in any jurisdiction, because there are professionals and programs that will or can improve outcomes for somebody with neurodevelopmental impairment, whether it’s caused by FASD or acquired brain injury of some other sort. So, yes, my answer to your question is yes, there could be ethical issues if there weren’t treatment options, but I believe there are treatment options, it’s just that the systems aren’t yet in place to deliver them.


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You’ve spoken a little bit about the funding negotiations that have gone on in Western Australia. One of the issues that has been raised in this Commission is the difficulty in attracting specialists to even places like Alice Springs. In addition to negotiating funding streams, what are the things that are needed to attract appropriately qualified specialists to be able to do this work?---Rural health and remote health workforce shortages are a problem that Australia has been looking at for over 40 years, and we have made some inroads into the workforce and training pipeline, and the various incentives needed to attract and retain professionals. If I speak specifically about my experience in paediatrics and child development, I believe that the drivers of activity and recruitment include a multi-disciplinary approach, so working within a team; feeling as though you’re making a difference; remuneration that’s appropriate; and systems of support, so that as a clinician you feel that you have administrative and coordination support allows you to do your job well and efficiently. In my experience it’s – that requires a state or territory-funded service in partnership with a more enterprise-driven model, because if you have those two services working – service models working together, you can have the base load of service provision delivered by the state or territory system, and then you have expertise that’s bought in and cycled through and non-government organisation, And I’ve found that to work very well in the models that we’ve developed.

COMMISSIONER GOODA: Can I just – Dr Fitzpatrick, does that make it even more important for that NDIS assessment?---Absolutely, Commissioner. And one of – what I see is one of the systemic problems of – or causes of social malaise in some remote areas is that everyone’s on welfare. Individuals are on welfare, families are on welfare, government services are on welfare, so as a state government doctor I could come up to the Kimberley and see two kids in a day, and I would get paid the same amount as if I saw 10 kids in a day meaningfully. I think initiatives like the NDIS will create a marketplace for service delivery. Not one, ideally, that’s exploited, but one that’s used to drive activity and the more episodes of care that can be delivered the more funding an organisation can access to deliver still more episodes of care. We’ve seen it in autism. Autism therapy services are a phenomenon to behold: they are an industry, but they actually have a very positive effect on outcomes for people with autism, and I would like to see the same sort of phenomenon involved for FASD therapy services.

And just in the autism NDIS approach, is it pretty much in the same place as say FASD? Like, the model of NDIS is really centred on the individual who actually works out their care needs?---That’s right. It would be exactly the same. And they are look at not relating it to the diagnosis itself, but relating it to the functional impairment that’s documented, and the individual and their family system have choice in terms of choosing service providers and helping to design their own therapy program.

MS GRAHAM: They are all the questions that I had, Commissioners.

COMMISSIONER WHITE: Ms Graham. Mr O’Connell, were you – I think it’s your turn now.


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MR O’CONNELL: It is, Commissioner. I just raised with Counsel Assisting whether it would be better if I do my cross-examination tomorrow morning, given that the assessment of my client, AD, is still not complete and the majority of my cross-examination will be in relation to that particular assessment. There were other questions I did have, some of which have been covered by my colleagues.

COMMISSIONER WHITE: And what’s the outcome of your discussions?

MR O’CONNELL: I just raised it then, your Honour.

COMMISSIONER WHITE: Alright.

MR O’CONNELL: I will learn it the same time as you.

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

COMMISSIONER WHITE: Well, it depends whether Dr Fitzpatrick is available tomorrow morning.

MR GOODWIN: Yes. He is, yes. It’s intended that both he and Dr Pastell will be available to provide evidence to the assessment they have been –well, will have completed regarding AD.

COMMISSIONER WHITE: Alright then. Thank you. Well, that seems to be answered.

MR O’CONNELL: Thank you, Commissioner.

MR GOODWIN: So I believe it’s only Mr O’Mahoney.


MR O’MAHONEY: Commissioners, I’m in your hands. If the convenient course is to pull up stumps this afternoon and reconvene tomorrow morning, that is fine. Equally, I will only be brief.

COMMISSIONER WHITE: Well, I think that the group of questions are very specific to the next witness, and so that really merges into that appropriately and conveniently. Yours will be more general questions, and - - -

MR O’MAHONEY: They will be.

COMMISSIONER WHITE: - - - so while we are all flagging a bit, I think we are probably – and you said about 15 minutes, I think.

MR O’MAHONEY: That’s right, Commissioner. Thank you.


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COMMISSIONER WHITE: Is that fine for you, Dr Fitzpatrick?---Yes, Commissioners.

<CROSS-EXAMINATION BY MR O’MAHONEY [4.54 pm]

MR O’MAHONEY: Dr Fitzpatrick, correct me if I am wrong but one of the takeouts that I gleaned from your evidence is that this condition, FASD, is very difficult to identify and very difficult to diagnose; is that a fair summary?---It requires training in the diagnostic process, and it requires a team who are adequately skilled, but it’s not rocket science. It’s something that clinicians and clinical groups can be trained up in, and they don’t need to be specific FASD focused clinicians. It can be delivered – FASD assessment can be done by paediatricians and psychologists in the general paediatric and child development setting.

There is no doubt that it can be done, but would you accept that it does present its challenges?---It does.

The diagnosis in this space. And one of the challenges is, I think as touch on in your report, that it’s a condition that doesn’t present in a coherent necessarily consistent way. Would you accept that?---That’s correct.

And another challenge is that – and you touch on this in quite some detail, in thoughtful detail in your report – that you can see – you can see this condition reside latently in a sufferer who might otherwise be chirpy, expressive, articulate, so on and so forth. And is that a challenge as well when it comes to the diagnosis?---Yes, it is.

And is this the case, sir, that in light of those challenges that a regular GP would be not in a position to properly diagnose the condition?---That’s correct.

And from that we can glean that it would be even more difficult for a nurse or a social worker or a teacher to identify whether or not this condition exists or subsists in a person?---They certainly wouldn’t be able to diagnose, but they would be able to be part of a screening process.

You mentioned before – and I think I’m quoting you when I say, that you refer to a barrier to screening, or a barrier to diagnosis. And one thing you touched upon was a difficulty, I think, in getting accurate information. My – or our researchers have indicated that there has been some studies done in Canada and South America indicating that one of the particular difficulties is that, for obvious reasons, it’s hard to get or glean accurate information from parents, particularly mothers, as to what precisely their alcohol consumption was during pregnancy. Is that something that you’ve seen in Australia?---Yes. It’s a significant barrier to making a formal diagnosis of FASD.

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Could you tell us just a little bit about the practical challenge that that presents on the ground to people like yourself?---Yes – yes. Particularly for young people in child protection or the justice system who may not be in contact with their biological parents any longer, it is often very difficult to access the mother, to ask those questions directly. And it’s even harder to physically be with them to ask them in a sensitive way. Historically, recording of alcohol use in pregnancy has done very badly – has been done very badly within antenatal and maternity settings such that they have been tick boxes on midwife notification forms for smoking in pregnancy, but nothing related to alcohol use in pregnancy. So another structural change that we are advocating for in Australia is that it’s – there is a standard minimum dataset that’s collected by midwives that includes screening for alcohol use in pregnancy using a tool called the audit C, which is a simple three question questionnaire.

Grateful for that answer. And can I this: pardon my ignorance, but roughly what is the alcohol consumption that one would need to undertake on a daily or weekly basis to trigger this condition, if it is possible to give an estimate of that?---It’s a – it’s a very difficult question, and our consistent advice is that there is no safe level of alcohol to consume while pregnant or while planning to become pregnant. The reason we’re very black and white with that regular – with that advice is that there’s a lot of variation between individual mothers in terms of their metabolic ability to metabolise alcohol and their enzyme levels, between their nutritional state and between their – their liver function. There is also a genetic and biochemical variability between foetuses in terms of their ability to clear alcohol, and we don’t know at what stage of foetal development the alcohol is consumed. It might be at a period of a high rate of development and movement and migration of nerve cells at which time the alcohol exposure will be more toxic than at a less active time. So there are just too many variables to be able to indicate a safe level. What we do know for certain is there a dose response effect, whereby the higher the blood alcohol level, and the more frequently the blood alcohol level is increased, the more likely the damage to the developing foetal central nervous system.

Thank you.

COMMISSIONER WHITE: Could I ask a follow on question from that: is it in fact the early weeks of gestation that are more important for this condition than later on in the pregnancy?---The brain damage can be caused at any stage during pregnancy. In the first eight to 12 weeks we see high levels of exposure being associated with the characteristic facial features of foetal alcohol spectrum disorder. So that’s where that early trimester danger narrative has come from, but it’s very important to note that all throughout pregnancy there is foetal central nervous system development, so damage can be done at any time.

Thanks, doctor.

MR O’MAHONEY: I was reading an article early this morning that – I think was Canadian in origin – but indicating that some studies had suggested that an average of four drinks a day was a threshold, or something approaching a threshold that could


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trigger the condition, but do I take it from your answer that the reality is that it’s variable as human experience and that some people will have it triggered by next to no alcohol consumption during pregnancy and others will consume quite a bit and not have it register at all; is that a fair summary?---I think it’s important not to ignore the evidence that you’ve just quoted, and there are some studies that indicate that very, very – that some low or moderate levels of exposure are less likely to cause significant impairment. But for the reasons you’ve followed on with, their individual variability and the fact that we often don’t know what one glass of alcohol is – is it two standard drinks, is it one standard drink – and it’s very hard for people to stop at just one glass, our consistent and strong advice as a medical community is that there is no safe level.

You gave evidence before, doctor, about the strong correlation between FASD and young children very early in life and during trauma, neglect and quite – really troubling, challenged circumstances. Do you remember giving that evidence? Is that one of the tragedies of this base, sir, that as a general rule the sorts of parents that have children that suffer from this condition are not, for all sorts of tragic and varied reasons not in a position to create a sort of nurturing environment after birth. Is that a fair enough generalisation, or is it not?---I think it’s a fair comment, but it must be borne in mind that there are other groups at high risk of having children with FASD, including wealthy and middle class people where alcohol use, including in pregnancy, is still a social norm. So those homes are generally quite structured and less chaotic, but there is still a high risk of alcohol exposure in pregnancy amongst those populations. So I’m trying to give a response that doesn’t assume that FASD is a symptom of disorganised Aboriginal communities.

No, certainly. I understand that, and I wasn’t suggesting it was. Can I ask: you gave some evidence about the importance of prevention and clearly, given it is a preventable condition, that must be front and centre and you make that point in your report. Could I just ask you to comment on that on two fronts: one, the scale of the challenge when it comes to prevention, but also if you’ve seen any models in Australia or overseas that have been successful that you would point us in the direction of?---Yes. And – and they’re documented in detail in my report, as you note. The Canadians, once again, have done a lot of the early thinking around models of FASD prevention, including Nancy Poole’s four part prevention model, that’s indicated in figure 1 in our report. We, in the Fitzroy Valley have added to that another four components, including regular diagnostic clinics, supportive alcohol policy, FASD related research, and targeted therapies and supports. And our studies in the Fitzroy Valley are the first internationally to empirically show that that approach, sustained for long enough and intensively enough – so around four to five years – can actually reduce rates of drinking in pregnancy. And figure 3, I believe it is in our report, shows the important data whereby in 2010 around 65 per cent of women were drinking in pregnancy in the Fitzroy Valley and at the end 2015 only 18 per cent of women were drinking in the Fitzroy Valley. So that is irrefutable data indicating that something has changed in the Fitzroy Valley, and we believe it is the Making FASD History strategy that has been associated and the major driver of that change.


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Certainly.

COMMISSIONER GOODA: Mr – can I ask a question.

MR O’MAHONEY: Sorry. I apologise, Commissioner.

COMMISSIONER GOODA: Yes. Was that about the period in Fitzroy Crossing where the alcohol reforms came in as well?---Commissioner, those reforms came in September 2007. So what we saw that was – between September 2007 and 2010, we actually see an increase in the rates of alcohol use in pregnancy. That – we don’t believe that that’s a real increase, we believe that that’s the improvement in data collection, but what it still shows is that even in 2010, three years after the – or two years after the alcohol restrictions – there was still very high rates of alcohol use in the first trimester. So our belief is that the alcohol restrictions were necessary, but not sufficient. So you also needed all of those health promotion, mass media, FASD therapy, FASD diagnosis activities to happen in concert and that that’s what has brought down the rates.

But it would have played a role?---It would have played a significant role, absolutely. Yes.

MR O’MAHONEY: Just on that, is it courtesy of the problem we were talking about before, the need, I guess, for self reporting of alcohol assumption during pregnancy, is it always difficult and tricky to put together, I guess, an accurate profile of how much alcohol is being consumed and how levels have shifted upwards or downwards over time?---It is. It’s a very difficult conversation to have with a person, their alcohol use in pregnancy, and the best place for that to happen is within a primary care setting that the pregnant mother is comfortable with. So that would be Aboriginal health workers or midwives working in community based services. And we have got a lot of work around workforce development, so that these people are trained to ask the questions in a – in a sensitive manner, and that they ask them in a rigorous manner using the AUDIT-C questionnaire, so we can actually quantify the risk level. But you’re quite right: it’s a very difficult conversation to have, and it’s likely there is underreporting of alcohol use in pregnancy in many circumstances.

I note the time, doctor. I’ve only got two more issues to touch on. The first is, in your report, you refer to the predisposition of violence that arises or that accompanies FASD. And in evidence today but also in your report you talk about the – some of the less serious offending that the breach of bail conditions on the spectrum, it’s at the less serious end. I’m interested in the other end of the spectrum, the more serious offending, serious violent assaults, sexual assaults, etcetera. Could you tell us a little bit about what connection, if any, there is between that FASD and the more serious and violent type offending?---I’m not familiar with the literature around that specifically, so I can give a response based on the observations of behaviours in the cohort of people I have assessed or examined. And I must say the majority of those have not related to serious violent offences or offences of a sexual nature. They have been mainly related to foolish crimes and less serious crimes that


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were very badly executed. The – any tendency toward violent or disinhibited behaviour in FASD could be related back to what we call frontal lobe impairment, so that inability to make good judgments, the inability to impulse control, be that a verbal impulse, a sexual impulse or otherwise. So I think it’s very important that people with FASD, male and female, receive intensive coaching and training in protective behaviours and appropriate social and sexual behaviours. I think a lot of the time it’s the disregulated impulse control that would probably lead to some of those more violent crimes, rather than it being a premeditated act that’s well thought through, well planned and then carried out.

And, finally, doctor, apart from urging the need for prevention in your report, another issue or I take out that I glean from it is the need to tailor youth justice experiences to accommodate the needs of the very specific needs of FASD sufferers, and in evidence today you referred to non-detention options being preferable. I – that throws up an obvious balancing act between the therapeutic needs of the FASD sufferers that you have so eloquently informed us about, and then of course the community safety community concern needs of people who, for reasons that they can’t control, are predisposed to violent activity from time to time. I would be interested in your experience with that and if there are any models that you have seen balance those two, I guess, divergent forces successfully?---It’s an important point, and I have heard people say that FASD shouldn’t be a diagnosis of FASD should not be a get out of jail free card, and I don’t disagree with that statement, and I believe that there are crimes of a certain nature that require that the public safety consideration is – is – is – is – trumps the personal therapeutic, on country, less secure type approach. I don’t have any experience in, or knowledge of, any of the successful approaches to remediating those kinds of behaviours in people with FASD, so I can’t comment well on that.

And maybe just finally, in your report you touch on just how universal this problem is. And I would be interested in, given some of your evidence today about the need to train in a very specific, very intense way the people interfacing with these children day in day out, could you point us in the direction of any overseas case studies or initiatives that you might think the Northern Territory could learn from?---Yes. And, again, there are examples in Canada of tailored therapy approaches for people with FASD that will also help other people who don’t have FASD in a justice or child protection setting. And an example is – firstly, psycho-education and workforce up skilling around the types of behaviours that might be seen in FASD, or early life psychological trauma, and appropriate responses from corrections officers or other staff within the justice system. So there’s the workforce up skilling in awareness that happens in some Canadian institutions, and also some specific, what are called neurohabilitation programs, like the Alert Program that I’ve documented in my report. And that includes – that involves teaching young people and those in their care and management system to recognise signs of escalation of behaviour or emotional arousal and to give language to describe it, so it can be named and then tamed. And then strategies, practical strategies to help bring the young person down. Or, indeed, to bring them up if they are running too low. So there are some examples that – again, they are not – they don’t need to be highly sophisticated, they just need


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to be done. And one of the things that I’ve seen work in FASD therapy in schools, and in other environments, are simple therapies that make sense, that actually just get implemented. The shortest road to failure of these strategies is implementation failure. And I will take the opportunity to make a slightly more divergent statement, if I may, because I know my time will soon end here. And that’s - - -

That’s very dramatic, sir?---That FASD and early life psychological trauma truly are a sleeping giant within the child protection and justice systems in the Northern Territory and in other places, and they are a potent driver of engagement of young people in these systems. And that I strongly believe that the Royal Commission focusing on the issues of FASD and early life trauma will help to drive a process whereby there are community and justice and child protection system strategies that are purposefully implemented in an evidence based fashion that can drive reduction of rates of alcohol use in pregnancy, and improved diagnostic services for FASD, improved therapy and support services, and therefore better outcomes for young people who find themselves in this situation. So I feel very passionately that this issue has a place in this Royal Commission and I very much appreciate the opportunity to be able to speak to it.

Thank you, doctor. And we are grateful for the opportunity to listen. No further questions Commissioners.

COMMISSIONER WHITE: Thank you. Now, you are going to tidy up, if you’ve got anything else after Mr O’Connell is dealt with?

MR GOODWIN: I don’t believe Mr O’Connell has any questions at this moment.

COMMISSIONER WHITE: No. He was going to do it tomorrow morning.

MR GOODWIN: Yes. And I have three short questions.

COMMISSIONER WHITE: I don’t believe a barrister knows the meaning of the word “short”, Mr Goodwin.

MR GOODWIN: Well, my questions are short. I can’t promise for the answers, Commissioners.

COMMISSIONER WHITE: .....

<RE-EXAMINATION BY MR GOODWIN [5.15 pm]

MR GOODWIN: Dr Fitzpatrick, in terms of the development of the brain in a young person, it is right to say that there is a particular plasticity to brain development throughout a child’s life; that’s correct?---That’s correct.

.ROYAL COMMISSION 8.12.16 P-552 J.P. FITZPATRICK RXN©Commonwealth of Australia MR GOODWIN20708521

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So in terms of FASD, with the right services provided, there is an opportunity to in your language rewire the brain, so to speak, if you provide the right services to a child who might be suffering from FASD?---There is the opportunity for that positive plasticity and to reduce the incidence of secondary or downstream affects, yes.

So in light of your discussions that, for example, a majority of young people that you’ve seen with FASD who come into contact with offending, having committed what you say is foolish crimes, there is still – if appropriate therapeutic services were directed to them, there is a chance for their brain to develop appropriately; is that correct?---That’s correct. And that the evidence suggests that that’s the case, and also my observation of family units that have been stable and supportive for young people who have good outcomes with FASD, versus chaotic family environments for young people with FASD who then almost inevitably have very bad outcomes. And I think that it’s important to place the family unit right at the centre of this discussion, as well as services and supports. The families need to be empowered and take responsibility for helping to improve the trajectory of young people with FASD.

And, so, on that issue, in terms of say a child with FASD who might be committing some more serious crime, such as what Mr O’Mahoney spoke to you, if that child is committing that type of offending there is still, if the right therapeutic services were delivered to them a chance that their brain may heal in part; is that correct?---I’m not sure I would use the term “their brain may heal in part”, and it might be that by the time those young people are engaged in those types of crimes the window for increased plasticity has closed. Even though brain development does continue into the 20s, I would imagine that beyond – beyond the early teens there will be a diminishing return on – on investment in therapy services. That’s not to say that they won’t – that they might not help to change the trajectory of a – of a young person, but the absolute focus should be in the early years.

A question in regards to that development of the brain. Do you have any comment on the setting of the age of criminal responsibility at – as it is here at 10 years old. Would that have any impact in terms of that brain development, that brain plasticity that a young person may experience?---In Western Australia the same age parameters are in place, and what we find most useful is that there’s the opportunity to have an assessment along the lines of a doli incapax and to assess why the young person’s mental age is above or below the that of the age of 10 years. I believe that, particularly in the case of conditions like pure ADHD or FASD associated with ADHD, there is a lot of frontal lobe maturation that can still happen after 10 years of age. So it’s likely that young people might be more impulsive or more prone to make stupid decisions and get into trouble around the age of 10, but I think rather than changing the line in the sand, which is 10 years of age, I think it’s important to assess people for their cognitive age relative to their chronological age. And often you will find that a 12 or a 14 year old might actually be operating at the mental level of a 9 or an 8 year old, and that will obviously have implications for culpability.


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Can I briefly ask you one last question, and that’s in regards to paragraph 59 of your statement. You mentioned the Making FASD History strategy in your responses to cross-examination. Let’s see if we – and so you’ve set a number of preconditions, and those preconditions include community led processes of recognising and prioritising FASD and a local organisation as the strategy lead. In your opinion is that particularly important for Aboriginal communities?---It is. I think it’s incredibly important that the community are ready for the courageous conversations and the painful process of recognising FASD. Specifically that there are strong community leaders who can bring others along, and that the community need to feel that the work around FASD is not being done to them, but it’s being done by them and with them. And that’s where in the Fitzroy Valley, having the local organisations Marninwarntikura and Nindilingarri at the helm of the strategy all the way along has been so powerful and that’s why it has been going for 10 years now, because the community initiated it and have continued to own it throughout the process.

Those are the questions on re-examination, Commissioner. If Dr Fitzpatrick could excused.

COMMISSIONER WHITE: I don’t think so, he is coming back tomorrow.

MR GOODWIN: Yes.

COMMISSIONER WHITE: Sorry to say.

MR GOODWIN: And I – that is true. I should explain that process. In terms of how Counsel Assisting intend to proceed tomorrow, it is that Dr Fitzpatrick, with Dr Pestell, will provide evidence regarding their assessment of AD, and then AD will provide his evidence following that evidence. It’s intended that that all be done in closed court for the reasons associated with confidentiality and the fact that a vulnerable witness will be giving evidence as has been discussed before the Commission early this morning. And so to that extent I believe that the parties who have been provided – who essentially know they need to be in the room know that, but otherwise I don’t believe other parties are required as a result of it being a closed court.

COMMISSIONER WHITE: That’s so. Yes, thank you. I think everyone understands their role and position. If they don’t, well, they will find out tomorrow. Thanks everyone, particularly thank you, Dr Fitzpatrick, for staying on so late into the afternoon. And thank you everyone else for your forbearance. And I hope your knees work when you go to stand up. I’m not sure mine will.

MR TIPPETT: Can I just say one thing before we adjourn, please.

COMMISSIONER WHITE: Yes, Mr Tippett.

MR TIPPETT: Can I just say this. I haven’t been provided with AD’s statement, and he is a young person my client was particularly engaged with, and with a number


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of other young people. This morning, I didn’t have a complaint. This afternoon I have a complaint that my client has been denied procedural fairness. None of these statements have been given: he isn’t being given an opportunity to look at them and provide instructions in relation to material that may be of considerable benefit to the Commission and certainly material that puts his position in perspective.

COMMISSIONER WHITE: Well, it’s his interest, of course, that you’re there to protect, Mr Tippett, rather than him helping the Commission. I think that’s perhaps not so much an important line. But have you taken it up with Counsel Assisting?

MR TIPPETT: I have, and I’m told that I’m not getting the statements. I’ve got complaints about the manner in which information is being conveyed to me and the nature of the information that’s being conveyed, the lateness in which it is being done, and the concerns I have in relation to the statements.

COMMISSIONER WHITE: Well, could I just say that – just a moment – perhaps other people can depart, because you can take this up with us now, but it doesn’t concern anyone else in the courtroom. So I think I would excuse those who would wish to go now. Thank you. And I can hear from Mr Tippett without detaining anyone else any further.

MR TIPPETT: As you say, barristers who they say are not going to be long are often long. But - - -

COMMISSIONER WHITE: Dr Fitzpatrick, you certainly can go. No one else – I don’t know, too tired to leave, I think.

<THE WITNESS WITHDREW [5.25 pm]

MR TIPPETT: The - - -

COMMISSIONER WHITE: Now, Mr Tippett, perhaps you could outline, if you would be so kind, is your client’s interests that are affected by the evidence of AD.

MR TIPPETT: Yes.

COMMISSIONER WHITE: I think that’s the starting point.

MR TIPPETT: Well, that was – let’s just go to the one. The gassing incident. My client was present, my client was in charge of procedures that took place at the time, and there were certain – and my client is well and truly aware of AD and has had a relationship with AD, positive in a number of respects. And I want to put, and be able to put, my client’s position in relation to this witness in perspective. I don’t know what’s in the statement, and of course I’m not in a position to know whether


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really I need to cross-examine. But I need to see the statement so that my client knows what AD is going to say.

COMMISSIONER WHITE: Alright. Thank you.

MR TIPPETT: And, secondly, that applies to the other witnesses, Commissioner. And that is the other child witnesses, and particularly AE.

COMMISSIONER WHITE: Well, there is only other one other child witness, that is AE. He is not a child, but a vulnerable witness.

MR TIPPETT: A vulnerable witness, yes. Now, Commissioners, dealing with vulnerable witnesses is common, and I’ve regularly dealt with them. I am content to receive statements from vulnerable witnesses and sign an undertaking that I won’t convey the contents of those statements to anyone other than my client for the purposes of obtaining instructions, and I am prepared in that undertaking to return that statement to Counsel Assisting, or to the Commission, at the conclusion of evidence, so that the contents of the statements remain confidential.

COMMISSIONER WHITE: There is a protocol worked out about those things, so I’m sure you’re familiar with them. So I don’t need to have you give those undertakings, because they mirror what’s required. Alright.

MR TIPPETT: So, first of all, my client was present during a particular dramatic event. Secondly, engaged with these young people on a significant and regular basis. And, thirdly, of course, was involved directly in the management of these young people.

COMMISSIONER WHITE: Alright then. Thank you.

MR TIPPETT: And was, fourthly, of course, the subject of government direction and policy – that affected these young people. Now, in the context of all of that, not only has my client got an interest, but in accordance with procedural fairness an entitlement to see the evidence and to instruct his lawyers as to whether he has any matters he needs to raise in order to put that evidence in context or to add to that evidence in order to provide explanation or, further, to put his own evidence in context as I understand he may later be called by the Commission to give evidence. That understand is being conveyed to me through Counsel Assisting.

Now, in the context of all of that, not only do I seek the statements, I seek further an order – or at least to be allowed, if my instructions are such – to question these witnesses directly and not through Counsel Assisting. It is common to question vulnerable witnesses directly; it is common for counsel to comply with certain protocols in relation to questioning so that the questions are directed to, in particular, relevance and put in ways that are not going to cause discretion; and that’s a common procedure that counsel is required to undertake, certainly in my experience and in my general area of practice on a regular basis; and that applies to very young


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vulnerable witnesses, as you can imagine, as well as vulnerable witnesses who may have psychiatric or social disorders who are a lot older.

So I think the Commission, in my submission, can be satisfied that not only will the material be dealt with, if provided to me in a proper manner, but that any questioning that I undertake, pursuant to instructions based on that material, will be conducted accordingly. And if it’s not, then my client is denied procedural fairness, and I will persist in obtaining the material.

COMMISSIONER WHITE: Thanks Mr Tippett. I think there is no need to sort of go round it again.

MR TIPPETT: Yes. I understand.

COMMISSIONER WHITE: We have got the point. Let me hear from Mr McAvoy who I think is going to be the responsive counsel. Mr McAvoy, are you going to respond to Mr Tippett?

MR McAVOY: I am. Thank you, Commissioner. Firstly, I understand that there has been some communication with those who instruct my learned friend in relation to AE. I’m receiving some instructions about that matter now.

COMMISSIONER WHITE: Well Mr McAvoy, Mr Tippett is talking about tomorrow’s witness. He was present. He has not being provided with even a redacted copy so far as it doesn’t concern his client?

MR McAVOY: That’s correct.

COMMISSIONER WHITE: Why is that?

MR McAVOY: And I hear my learned friend’s submission in relation to how he has engaged with vulnerable witnesses in the criminal – in the criminal courts - - -

COMMISSIONER WHITE: Well, Mr McAvoy, perhaps the first point to address is the interest which his client has in the evidence which is being adduced from the witness tomorrow.

MR McAVOY: Yes.

COMMISSIONER WHITE: We will deal with that first.

MR McAVOY: Certainly. Counsel – I, as Counsel Assisting, have looked at that material and it’s – in my view the matter does not affect Mr Tippett’s client’s interests in the direct manner that’s required for this Commission.

COMMISSIONER WHITE: Well, could you enlighten me about which counsel have been given the statement?


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MR McAVOY: Certainly.

COMMISSIONER WHITE: Apart from the Northern Territory Government?

MR McAVOY: Only witness AD’s legal representatives. So in the afternoon it will – when AD gives evidence it will be only to government representatives and AD’s own representatives in closed session. And in the morning the proposal is that for Mr Fitzpatrick and Ms Pestell’s evidence, it will be the Counsel Assisting and AD’s legal representatives. As the matter doesn’t affect - - -

COMMISSIONER WHITE: Can you then just make a little clearer why it is that Mr Middlebrook doesn’t have an interest in this evidence? Bearing in mind what position he occupied and his participation in the event.

MR McAVOY: Commissioner, I can say this much: he is not named; he is not recognised by the witness; and I clarified that in conference with him yesterday afternoon. He did not know who Mr Tippett’s client was, could not identify him, and says nothing of him. The witness’ evidence goes to things that occurred, and from that inferences may be drawn about the policies in place, but he makes no comment about the policy. He says, “This is what happened to me.”

COMMISSIONER WHITE: Now, we were told this morning that – by Mr Lawrence, I hope I’m not misrecalling what he had to say – that his client is – will be or has commenced a civil suit.

MR McAVOY: Certainly

COMMISSIONER WHITE: ..... government. Because the previous civil suit was widely reported we are aware that Mr Middlebrook, I think, was involved in that suit – was giving evidence. So it might just be a little bit of – shall we say, a little bit a fancy footwork to say that Mr Middlebrook isn’t expressly recognised by your client. I’m struggling with keeping him out of this material.

MR McAVOY: Commissioner, I – it’s not a matter of fancy footwork. There are a number of officers who were working on the floor in the relevant institution who have been the subject of notice to the Northern Territory Government. It was an assessment of the evidence as it stood. I’m happy to reassess it in light of Mr Tippett’s submission today, however, I have difficulty with the suggestion that any party to the proceedings should be shown every statement that – from every vulnerable witness to determine whether they have an interest or not.

COMMISSIONER WHITE: I don’t think there was any suggestion of that kind, Mr McAvoy. I think this one is pretty plain about the presence and so on, and of course the whole history of that incident and how it’s played out. I know this is not going to take place in the public domain, but nonetheless subject to my discussions with Mr Gooda, I have a particular view that’s emerging here.


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MR McAVOY: Certainly, Commissioner. I have nothing more to say on this. I have indicated my preparedness to speak to Mr Tippett about it and see if we can’t bring some sort of resolution to the Commissioners, rather than the Commissioners having to make any ruling, as it were.

COMMISSIONER WHITE: Well, let’s give you five minutes to meet – to reach a decision about that. But that’s the indication that I’m informally giving.

MR McAVOY: Certainly, Commissioner.

COMMISSIONER WHITE: Can I leave you gentlemen to talk about that. Thank you. Now, Mr Lawrence.

MR LAWRENCE: I wonder if I can be heard on that, please.

COMMISSIONER WHITE: Mr Lawrence, really.

MR LAWRENCE: Well, I am representing AE.

COMMISSIONER WHITE: I understand that – I understand that. Can I tell you that I’m not acceding to everything that Mr Tippett has submitted that he would like to do, and that includes his robust but careful cross-examination.

MR LAWRENCE: I understand that. I’m merely in a way amplifying what my learned friend has said, because he did specifically go through everything in AD’s evidence which says nothing, nothing directly about my learned friend’s client, the chief executive officer of Corrections. And indeed he was drawn – his attention was drawn to photographic evidence as to identifying him and so forth, and he has nothing to say about him in his statement.

COMMISSIONER WHITE: Mr Lawrence, Mr Tippett doesn’t know that, because he hasn’t been given access to the statement.

MR LAWRENCE: I see.

COMMISSIONER WHITE: And that’s the problem, you see. It’s nothing more than that at this stage.

MR LAWRENCE: I see.

COMMISSIONER WHITE: So that he needs, quite properly as the legal advisor to Mr Middlebrook, he needs to satisfy himself of that. He doesn’t for one moment, of course, doubt anything that you or Mr McAvoy would say, but it’s an appreciation of the effect of the evidence which is important for him to be able to bring his independent judgment to bear. So let Mr Gooda and I just stand down. But we are reaching the end of our day, I have to tell you, and we need you to sort this out quickly or else I will make a – we will make a direction.


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MR McAVOY: Certainly. Thank you.

ADJOURNED [5.39 pm]

RESUMED [5.44 pm]

COMMISSIONER WHITE: That was faster than five minutes. Thank you.

MR McAVOY: I happen to have a copy of the document Mr Tippett was seeking with me, which I can provide to him, Commissioner.


MR McAVOY: So he has been provided with a redacted but fully readable version of AD’s statement, and we have reached agreement that my learned friend will seek instructions on the basis of that document and return that document to me tomorrow - - -


MR McAVOY: - - - at which time he may make some application about whether he be permitted to either be present in court and hear the evidence but not participate otherwise or some other result.


MR McAVOY: I should indicate that I also received a request from my learned friend, Ms Lee, in relation to her clients, and a desire to be present during the closed court tomorrow for the purpose of observing the process so that she might advise her clients, who are – who have – were present at a time which the events of AD’s statement covers. I ask Ms Lee to make that application in the morning and – rather than deal with all of that now, unless you’re minded to deal with it now, Commissioner.

COMMISSIONER WHITE: What’s the attitude of you and Mr Lawrence to this application?

MR McAVOY: It’s difficult for me to respond to Mr Tippett’s application without knowing what it’s going to be.

COMMISSIONER WHITE: Not Mr Tippett, Ms Lee’s.


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MR McAVOY: Ms Lee’s. If it’s – I suppose if it’s for observation purposes only, given who her clients are, which is AA to AC, I won’t object to an order to that effect, as long as it’s out of camera range from the opposite end of the telecast - - -

COMMISSIONER WHITE: I understand.

MR McAVOY: - - - and the witness won’t be able to see a room full of people.


MR McAVOY: I haven’t had the opportunity to talk to Mr Lawrence about it, but no doubt he has a view.

MR LAWRENCE: Look, I would be happy to advise my client about that proposal, and I would be confident that what my friend says would be replicated.

COMMISSIONER WHITE: Thank you. Perhaps you can get some instructions, then.

MR LAWRENCE: I will.

COMMISSIONER WHITE: Ms Lee, I don’t require you to make any further application. It has been conveyed through Mr McAvoy. Is that satisfactory to you?

MS LEE: Thank you, your Honour.

COMMISSIONER WHITE: Thank you. Thank you, Mr Tippett.

MR TIPPETT: Thank you, Commissioners.

COMMISSIONER WHITE: We will hear from you tomorrow. All right. Could you adjourn, then, until 10 o’clock tomorrow, please. Yes. 10 o’clock. Thank you.

MR McAVOY: Thank you, Commissioners.

MATTER ADJOURNED at 5.47 pm UNTIL FRIDAY, 9 DECEMBER 2016


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Index of Witness Events

JEANETTE ELIZABETH KERR, SWORN P-479EXAMINATION-IN-CHIEF BY MR CALLAGHAN P-479CROSS-EXAMINATION BY MR BOULTEN P-505CROSS-EXAMINATION BY MS GRAHAM P-514CROSS-EXAMINATION BY MS LEE P-521CROSS-EXAMINATION BY MR O’MAHONEY P-524

THE WITNESS WITHDREW P-526

JAMES PAUL FITZPATRICK, AFFIRMED P-526EXAMINATION-IN-CHIEF BY MR GOODWIN P-527CROSS-EXAMINATION BY MR BOULTEN P-541CROSS-EXAMINATION BY MS GRAHAM P-543CROSS-EXAMINATION BY MR O’MAHONEY P-547RE-EXAMINATION BY MR GOODWIN P-552

THE WITNESS WITHDREW P-555

Index of Exhibits and MFIs

EXHIBIT #37 DELEGATION OF AUTHORITY P-500

EXHIBIT #38 STATEMENT AND ANNEXURES OF DR FITZPATRICK

P-527

.ROYAL COMMISSION 8.12.16 P-562©Commonwealth of Australia20708521

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Documents

Transcript 8 December 2016 Web view.ROYAL COMMISSION 8.12.16P-509J.E. KERR XXN ©Commonwealth of AustraliaMR BOULTEN. 20708521.ROYAL COMMISSION 8.12.16P-461 ©Commonwealth of Australia