transcript 12 october 2016 web vieware you able to just discuss the concept of informed consent?yes....

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TRANSCRIPT OF PROCEEDINGSTRANSCRIPT IN CONFIDENCE

O/N H-717813

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

10.07 AM, WEDNESDAY, 12 OCTOBER 2016

Continued from 11.10.16

DAY 3

MR P.J. CALLAGHAN SC appears with MR T. McAVOY SC and MS V. BOSNJAK, MR B. DIGHTON, MR T. GOODWIN and MS S. McGEE as Counsel AssistingMS S. BROWNHILL SC appears for the Northern Territory of AustraliaMR P. O’BRIEN appears for Dylan VollerMR J.B. LAWRENCE SC appears for ADMR M. GUMBLETON appears for AA, AB and ACMS F. GRAHAM appears for Central Australian Aboriginal Legal Aid ServiceMR P. BOULTEN SC appears for the North Australian Aboriginal Justice AgencyMR J. TIPPETT QC appears for Ken MiddlebrookMR T.G. LAMBERT appears for Dr Howard BathMR A. GEORGE appears for Ms Colleen Gwynne

.ROYAL COMMISSION 20161012 P-103©Commonwealth of Australia Transcript in Confidence

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RESUMED [10.07 am]

MR CALLAGHAN: If it pleases the Commission, I call Dr Howard Bath.

MR T.G. LAMBERT: Commissioners, before Dr Bath is sworn in I should announce my appearance. I wasn’t at the original directions hearing, but I represent Dr Bath and for the record my name is Lambert. L-a-m-b-e-r-t, initials TG, counsel for Dr Bath and I’m instructed by Mr Fisher, of Fisher Dore Lawyers from Brisbane. Thank you, Commissioners.

<HOWARD IAN BATH, SWORN [10.07 am]

<EXAMINATION-IN-CHIEF BY MR CALLAGHAN [11.08 am]

COMMISSIONER WHITE: Thank you. Thanks Mr Callaghan.

MR CALLAGHAN: Could you tell the Commission your name and occupation, please?---My name is Howard Bath, Howard Ian Bath, and I’m a consultant and psychologist.

Dr Bath, you prepared a statement for the purposes of this commission and, subsequent to preparing it, you’ve made some handwritten amendments and corrections to the original version; is that correct?---Yes.

And can you just take a look on the screen there, please. Is that a copy of the – or is that, in fact – yes, a copy of the statement that you prepared?---Yes

And if we could just scroll through, for example, to page 8 of that statement. We can see in the paragraph 56 an indication of the type of corrections that you’ve made - - -?---Yes.

- - - to that statement. Yes, I tender Dr Bath’s statement.

COMMISSIONER WHITE: Thanks Mr Callaghan. I think we are up to exhibit 11.

MR CALLAGHAN: Can I indicate that there are a number of annexures to Dr Bath’s statement but, given the limited scope of the evidence that I intend to adduce from him at this stage, there is no need to actually tender the annexures and I refrain from doing so. And we will just proceed with some questions of a general nature. Before proceeding, and without going through the laborious exercise of going through your qualifications, you’ve prepared a curriculum vitae; is that correct?---Yes.

.ROYAL COMMISSION 20161012 P-104 H.I. BATH XN©Commonwealth of Australia Transcript in Confidence MR CALLAGHAN

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I might just get that shown to you as well. That’s your CV and setting out all your qualifications and experience; is that correct?---Yes.

Yes. I will tender that, too.

COMMISSIONER WHITE: Dr Bath’s curriculum vitae is exhibit 12.

EXHIBIT #12 CURRICULUM VITAE OF DR BATH

MR CALLAGHAN: And I should correct my form of expression. There aren’t actually annexures to Dr Bath’s report – statement: there are a number of reports which are relevant, but I refrain from tendering them for the moment.

COMMISSIONER WHITE: Mr Callaghan, could I mention that – I’m not sure whether people can hear you, but I am having difficulty.

MR CALLAGHAN: I am sorry, Commissioner. I will - - -

COMMISSIONER WHITE: Might just need to - - -

MR CALLAGHAN: Adjust the microphone and raise my voice, and cover all bases hopefully.

COMMISSIONER WHITE: And perhaps lift your head. Thank you.

MR CALLAGHAN: Dr Bath, in June 2008 you were appointed as the inaugural Children’s Commissioner in the Northern Territory, is that correct?---Yes.

Did you do any work in the Northern Territory prior to your appointment as the Children’s Commissioner?---Yes, I did.

What’s was the nature of that work?---Some of it was consultancy work with the then-Child Protection Department on particular matters, particular cases, and then also an audit of high risk cases that was commissioned in 2007.

What was the subject of that audit? High risk cases?---The audit was – I think it was called the Community Services High Risk Audit and it folk focused on how those community services managed risk with clients and how they assessed that risk.

I see. Who appointed you to prepare that report?---The Minister at the time asked for the commission of the audit, and the head of the Child Protection Department, or the Community Services Department in those days – the names have changed, so it’s – I’m not exactly sure what the name was of the department, but I think it was Health and Community Services. The director of that commissioned that particular audit.


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And did you have any understanding as to why that audit was commissioned?---Yes. It followed two highly publicised deaths of people connected with Child Protection.

I see. Well, as you’ve said, you were the inaugural Children’s Commissioner. Can you explain how that role came to be established?---The role was first proposed – was proposed in the then-current Child Protection Act and it was commenced, as I understand, in about June of – May or June 2008. The position was advertised in January of 2008, and I was successful in gaining that position.

And for what period did you serve in that role?---I served in that role from June 2008 to March 2014. Sorry, 2015. But I was here present in the territory to the end of 2014.

Am I right in suggesting that you were on extended leave for periods during that tenure? For example, between November 2009 to October 2010 you were occupied on a Board of Inquiry, the result of which we will discuss in due course; is that correct?---That’s right. But it was just that one extended period for the Board of Inquiry.

All right. Yes. And – okay. Can you tell us about the staffing levels in the office of the commissioner during the time that you occupied the position?---They ranged from three staff initially to, at various times, around 8.5 full-time equivalent staff from my memory. We had – from time to time there were projects where we had extra staff coming in, but I think it was around 8.5 was the – toward the end of my time was the staffing load for that office.

So it grew from three to 8.5 during that period?---Yes.

Why was that?---Increasing number of functions that were attached to the office.

Did you have to seek those additional resources from government?---From time to time I had to seek it. Other times - - -

Those staffing increases in particular - - -?---Yes – yes.

- - - did you have to make a case for them. Was there any difficulty with that?---There is always a challenge in doing that, but generally I think it was recognised that we needed that staff.

All right. So presumably you made a submission with reasons?---Yes.

And those reasons were accepted for the most part?---Yes.

Is that your evidence?---Yes – yes.

Your powers and functions were initially set out in the Care and Protection of Children Act, is that right?---That’s right.


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And when we’re talking about a protected child, can you just tell us the meaning of protected children?---From memory that was – the definition of a protected child is one that had some form of contact with the child protection system. So it ranged from a notification right through to intensive intervention services for child and the family.

When you talk about the child protection system – so, okay, a protected child is someone who has had contact with the system. What’s “the system”?---We are talking here the – specifically, the Child Protection Service and that’s – that was – became known as Northern Territory Families and Children for most of my tenure.

And that’s a division within the Department of Health and Families, was it?---It was initially.

But you and your office were independent from that department, were you?---We were nested initially with that department for administrative reasons, and later we became associated for administrative reasons with the Attorney-General.

I see. Can I ask you about the powers that you enjoyed for the purpose of carrying out your functions as Children’s Commissioner, and particularly whether they changed over the period of time in which you occupied the role?---Yes. The powers changed significantly over the years.

Can you - - -?---Initially - - -

- - - take us through that?--- - - - they were focused on monitoring the government decisions arising from the Little Children are Sacred report, monitoring the administration of the Act as far as it pertained to protected children, to making – to responding to complaints, to resolving complaints which involved an investigation process, and then it went more broadly to public education issues.

You’ve mentioned the Little Children are Sacred report?---Yes.

And it has been touched upon in evidence already and mentioned in these proceedings. But I wonder if we could ask you to just give us some background and explain the provenance and nature and significance of that report?---Well, my position starting in mid-2008 was right in the middle of what’s – what came to be known as the Intervention, shortly after the Little Children are Sacred report was brought down, and so there was a great deal of activity around the recommendations – not only of the Little Children are Sacred report, but actually of what came to be known as the Intervention, a lot of activities associated with that. My – the focus of my position in terms of that particular report, though, was specifically on Northern Territory government commitments arising from that particular report. So that there were – the Intervention was largely federally driven, whereas my role was around the Northern Territory Government commitments as a result of that inquiry.

And your role being to monitor the implementation?---That’s right.


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And report on it?---That’s right, yes.

What were your reporting obligations?---I did that annually. We looked through each of the commitments because the government – the Northern Territory government had published a strategic plan of the issues that they were going to be responding to, the amount of money that would be committed to the various areas that they were focusing on, and then I reviewed them each year. The – well, the progress that had been made, the recommendations that had been met, and where there were still activities to do.

And to whom did you provide those reports?---Those reports were provided to the relevant Minister.

And did that change – did the identity of that Minister change during the course of your term?---If I remember right, I think it was three times. It could have been four times.

If I was to suggest names Robyn Lambley, Alison Anderson and John Elferink, would they be the three?---No. Prior to that there was Mr Vatskalis.

Right?---And I think in the first year it might have been different, but I would need to look at the reports.

The other names I’ve suggested are - - -?--- ..... yes.

- - - accurate? Did you provide reports in draft form?---The main focus of my reports was the Northern Territory Families and Children, the Child Protection Service, and we provided the relevant parts to that service before they were published each year. The – also when we were doing the reports on the Little Children are Sacred report in terms of the Government responses to that, we provided them – in fact we got that information directly from government and, where necessary, clarified that information before it was published.

You weren’t required to do that, I take it, or were you?---There was no specific requirement, it was just - - -

It was just good practice?--- - - - a procedural fairness issue.

Yes. All right. And did your reports include recommendations?---Yes.

I’m not concerned at this stage with the specifics of them, just as a general proposition. You made recommendations?---Where it was relevant, we made recommendations.

And, again, to whom were they directed?---To – well, it could be to the government as a whole, but more specifically to government departments.


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And what was the process to follow up on implementation of recommendations?---It really depends on what area we’re talking about. If it was the complaints function it was specifically to the department that was responsible for that complaint or carrying out the service the complaint pertained to, and we would then follow up on those. It was a requirement, actually, of the Act that we did. And we would work out a time frame for reviewing the government – the progress of the department in meeting those recommendations.

All right. In 2011 there were a number of legislative changes to your role; is that correct?---Yes.

Can you perhaps identify those that you thought to be the most significant?---I – I just wrote – written a few notes here. If I could attend to those.

I’m sure the Commissioners won’t have - - -

COMMISSIONER WHITE: Yes, of course.

MR CALLAGHAN: - - - a problem.

COMMISSIONER WHITE: Of course, Dr Bath?---In 2011, instead of just a complaints function – so that prior to that we could only respond where someone had made a formal complaint, after that time we could respond from 2011 to what we call – we could do an own initiative investigation. In other words, it didn’t have to form a valid complaint as per the Act, but it – it – it was an issue that we became aware of and felt it was necessary to investigate that particular issue. So that was a key thing. But, perhaps more significantly, the definition of the – the focus of the complaints changed from protected children to vulnerable children, so it expanded the range of children that came under the purview of the complaints function. So that a – the Act defines vulnerable children. That included child in the protection system, but it also included children who had contact with the police or were in – under the Youth Justice Act had some sort of involvement with that. It involved children with mental health issues and with – children with disabilities. Still focused on the services provided to these children.

So you got the power to conduct your own investigation?---Yes.

And the purview of that investigation – of those investigations was widened to include vulnerable children?---Yes.

Do you recall any other significant changes effected by that legislation?---Those were the two major amendments that come to mind, and later on there were other additions to that as it became its own specific Act.

I see?---The Children’s Commission Act.


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I see. Well, how did these sorts of changes affect the way in which you carried out the job that you had started when you were initially appointed?---We went - - -

How did the role change?---We went about it in the same way, but there was a just – there was a much broader scope, so that involved quite a lot of communication with the public and with the various stakeholders that we now have this function. But it also included setting up a means to respond to complaints from other sources as well. But it also involved quite a lot of negotiating with the agencies involved, but also the other investigative agencies that could have had an interest in those same complaints.

And can you just itemise those agencies?---I’m talking about the Ombudsman’s Office in particular, I’m talking about the Health Complaints Commissioner, for instance, who had responsibility around disability services as well, and various other community services, and also the complaint functions of the various departments, because they are relevant too.

Okay. Dr Bath, in 2012 there was a change of Government in the Northern Territory?---Yes.

Did you observe changes in the course of your role as Children’s Commissioner as a result of those – or following that change of government?---Yes. There were a number of quite significant changes. Changes obviously in emphasis and in personnel in terms of the Minister and certainly some changes in priority as well.

Would you mind taking us through those?---There are very many.

There are many?--- .....

And we are interested to hear as much as you could say about them?---Well, perhaps the thing that comes most readily to mind is the fact that there were very significant changes to the main department that we were concerned with, in terms of all our functions, and that was the Northern Territory Families and Children, the Child Protection Department. That underwent significant changes following the change of government.

Can you illustrate?---Well, first of all it was reduced in status. It became an office rather than a department or a branch.

Yes?---There was significant turnover in personnel. I think perhaps another very significant issue was the change in priorities. The department at that time was responding to the Board of Inquiry recommendations, the 147 recommendations, and that was a key focus for - - -

Sorry. I’m sorry to interrupt. When you say responding to the Board of Inquiry, are you talking about the one that you - - -?---Yes. That I was part of.


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- - - were part of which led to the report Growing Them - - -?---That’s right, Growing Them Stronger Together.

Growing Strong Together. Yes. Okay. I’m sorry, I interrupted you, but could you go on?---Perhaps the main change was to do with the – as I said, the difference in change in priority. Up to that point from the Board of Inquiry at the end of 2010 a key focus of the department was on very significant reforms to address the recommendations in that report. There was an external committee – I was not personally responsible, or my office was not responsible, for reviewing the progress towards meeting those recommendations. There was an external monitoring committee that was set up to ensure that the department involved addressed, or the departments involved – because there were many – addressed the changes – the reforms that were recommended in that report. Perhaps one of the first actions of the new government was to abolish the external monitoring committee, and although I think that there was a broad commitment to the general nature of the reforms, very specifically some of the key reforms the government announced that they would not be pursuing.

Can you give us an example?---I think probably the pivotal recommendation of a major change in emphasise from tertiary services to prevention services. That over a period of time the budget would reflect that as much emphasis was going into preventing abuse from occurring or from reoccurring – as much emphasis on that, than responding and detecting and supporting children following abuse.

So this was a - - -

COMMISSIONER WHITE: Mr Callaghan, could I just pause here.

MR CALLAGHAN: Sorry.

COMMISSIONER WHITE: Some people may not be familiar with the expression tertiary response. So I wonder if you could elaborate on what that means, Dr Bath?---I’m referring, with the word “tertiary services”, to services that come into play when – in child protection, at least, when harm has already occurred.

MR CALLAGHAN: Can you - - -?---When it has been detected, where there has been abuse, where there has been neglect. And the services are provided to remediate, to support – either help the family function in a more protective and nurturing way, or the child is removed and then supported in a nurturing – in an alternate nurturing environment. So those are – also therapeutic services for the children and the families. Those are considered tertiary level services.

MR CALLAGHAN: And to tease it out, can you give us some examples? I mean, you talk about the removal of the child, for example, that’s perhaps an obvious one. But examples of other tertiary and/or therapeutic services?---Well, you could include the intake service that we heard about yesterday from the Ombudsman. It is a tertiary service: people are notifying that there is a concern a child has been abused.


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When it’s assessed that that may – that may well be the case, after it has been assessed, then tertiary systems come into play. That might mean someone going into the family, providing family support or family preservation services; it might mean temporarily placing the child into foster care while the family receives support and other services; and in some cases it might mean placing the child with other relatives, or it could also mean removing the child for a period of time from what’s considered to be an unsafe environment.

But in any case, or in all of those cases, reacting to something bad that has already happened; is that - - -?---Yes.

Is that what it came down to?---Yes.

And the recommendations, as I apprehended, that you had made and that were being implemented, or at least starting to be implemented, were with a view to shifting the emphasis from those services to preventative measures. Is that - - -?---We didn’t want to shift the service – the focus entirely away from that, because secondary and tertiary services are a vital part of the system.

Okay?---In fact, you know, when an issue is immediate they must be there and they must be robust and effective. The problem is if you are not dealing with the feeder issues, what they call the upstream issues, the struggling families from which all these children come, it’s like you’re waiting for the harm to occur before you provide your service, rather than trying to support families that we know are vulnerable before a child needs to be removed.

So it was a poor choice of words on my part. It wasn’t a shift of emphasis but it was a widening of the vision, if you like?---It was a widening of the vision, yes, so that as much is spent – as much effort is putting into preventing children coming into these systems than to trying to fix the problem once the harm has occurred.

Okay. And specifically – and, again, we are talking here about implementation of recommendations made by the board of which you were a part?---Yes.

As at 2012, prior to the change of government, can you describe specifically what your office and you were doing with a view to implementing those recommendations?---My office didn’t have a formal role.

No?---In actually implementing, nor in monitoring those. Because there was a specific committee set up, as I mentioned, called the External Monitoring Committee.

Yes?---That had that role of reporting to government and it collected the data, it visited the centres, it talked to the workers, and then compiled reports about progress of government services in meeting those recommendations. As it turned out some of – some of those recommendations, one in particular, did affect our office, because one of those recommendations was on broadening the scope of the Commissioner’s


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function to beyond child protection to look at, for instance, Youth Justice Services as well.

I’m just interested then, I suppose: if you had no formal role, how is it that you come to give us the evidence to the effect that there was a change in the way things were happening following the change in government?---Because a lot of my services, and in particular my complaint function, had to do with services with the Child Protection Department. The Child Protection Department wasn’t the sole department responsible for those recommendations, but it was the primary one.

I see. Looking also at other changes that may have arisen as a result of the change of government, you told us earlier that you were associated, with the reporting at least, I think, on the implementation of the Little Children are Sacred report; is that right?---That’s right.

Did that continue?---It continued for a few years, and it continued to the point where the majority of the recommendations had been addressed and had been met – the recommendations, or at least the commitments of government and the Northern Territory government had been met. And we reported on that each year until it became clear that there was not really any point in continuing, because there was only a handful that were not going to be addressed, or there was no point in addressing them. For example, our – the report made commitments around alcohol policy. There have been very significant new developments in alcohol policy from that time, and so there was no point in specifically looking at the recommendations that were made back in 2007, I believe, because there had been so many developments around alcohol policy and it was clear the original recommendations weren’t going to be implemented.

So that wasn’t – you wouldn’t say that was a function of the change of government that those things – that the way you were doing things changed?---No.

That was just the effluxion of time and the way things unfolded?---No. That’s right.

Okay. There were some legislative changes – and we may have already started to talk about those – legislative changes made in December of 2013; is that correct?---That’s correct.

Without repeating matters that we’ve covered already, were there other effects of those changes at around that time, on the way you discharged your function?---There were other effects. It became – the Children’s Commissioner Act was introduced at that time. It was essentially the – what was contained in the other Act, in the Child Protection Act, but it also included the possibility of the Commissioner conducting inquiries, which was a more robust function, let’s say, then an own motion investigation. It also included things like the requirement that there is a procedural fairness principle in place, in terms of the production of the reports, in terms of making sure the reports went first to government departments before they were provided – before they were finalised.


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And how is the ability to conduct an inquiry more robust than an own motion investigation?---It – well, it depends on how you define an inquiry, but we saw an inquiry as a much – had a much broader scope. It involved, for instance, inviting members of the public and anyone who wanted to make a submission to make those submission – so the formal inquiry was announced, terms of reference were announced, and it was conducted in a public fashion, rather than just an internal investigation, which is what the complaints investigation was. Can I just add that the other key function was – for us the big change in our office was the possibility of resolving matters before investigation. That was a very significant change as well, at that time.

Well, we can – we can read the legislation for ourselves, of course, and we can work out the statutory changes that occurred to the role and the way in which it’s developed. But can I ask you this: as at the point when you left the office, anyway, were there powers that you thought the Children’s Commissioner would benefit from having but they did not have?---Yes. There were – there were – there were matters coming to mind. Whether it was the Commissioner or some other agency, I felt that there needed to be some possibility of independent assessment of, for instance, activities occurring in youth justice facilities. Some form of external accountability for those particular systems. The Commissioners didn’t have the – the Commissioner at that time, and still doesn’t, have the authority as I understand it just to go in at any time and – rather than just in response to a complaint but, you know, to provide accountability for what may or may not be occurring in those centres.

And that’s clearly a function, would you say, for the Commissioner?---I would say that’s a possibility. I’m not saying it’s – it has to be for the Commissioner. There are – there’s the Ombudsman’s Office, and I understand in New South Wales it’s – that sort of function is provided by the Ombudsman’s Office, or the Assistant Ombudsman, so there are different models of doing this. But there certainly needs to be, in my view, an external accountability mechanism.

And if I can pressure you, because you are clearly qualified to give an opinion, accepting that there might be other models, do you see a value in it being the Commissioner rather than one of those other models of which you’re aware? Or do you want to think about that?---I will need to think about it, but I think generally in a small jurisdiction like this you don’t want to multiply oversight and regulation offices unless you really have to. So I would think it’s important not to create a completely separate office to do that.

Yes?---I would think the Commissioner’s Office would be an appropriate office to be looking at that issue.

And if we – as you say, it’s a small jurisdiction, and we are probably dealing in fairly limited concepts, but if we’re to – for the reasons you identify, set aside the notion of creating a separate office, that probably just leaves the Commissioner and the Ombudsman as candidates. For such a role?---Off the top of my head, yes.


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And do you see an advantage in the Commissioner rather than the Ombudsman?---Well, just in terms of the focus of the Commissioner’s work is on the wellbeing of children, it seems to fit very well with the object of the Commissioner Act, the Children’s Commissioner Act, which is to ensure the wellbeing of vulnerable children.

Yes. So if nothing else, by process of elimination, perhaps we can suggest it should be a function for the Commissioner if it was to be a function that was introduced?---Off the top of my head, without really processing it, I think I would agree with that.

You are aware, Dr Bath, we propose to recall you - - -?---Yes.

- - - at a later sittings of the Commission. So in that, and in all other answers that you give, if you wish to reflect, qualify, revise, of course you’re welcome to do so. Can I ask some general questions about the child protection system that operates in the Northern Territory, and begin with the function of a notification. Can you just take us through that?---Well, as we heard yesterday there is a Central Intake Service.

Yes. We probably heard about it without hearing too much by way of background, though. If you can take us through it?---Anyone in the community can make – can, you know, forward a notification. In other words, if they have a concern that a child is being abused, is being harmed, or is about to be harmed, there’s the scope for anyone to call a crisis line number and convey their concerns. They can either call that or they can call the police. And the police would also, I understand, liaise with that particular service as well. That service is a part of the child protection service, it’s the gateway – it’s the portal for getting services for children at risk of harm.

And so would the notification lead to the intake response - - -?---Yes.

- - - process?---Yes.

And just take us through what’s involved?---My understanding is – and again, I haven’t looked at the specifics of this for, you know, some years now – but from my recollection the idea is that there’s a – it would immediately go to one of the assessors, who is a qualified social worker or ideally is a qualified social worker. One of the things we found is there was difficulty in manning that particular service all the time with the most qualified people. But the idea was that they would make an assessment, an initial assessment. First of all, “Is this a notification or is this something else?” For instance, could just be an inquiry from someone about what to do with a child – you know, child control matter, let’s say. So all the calls aren’t necessarily notifications of harm. So they would – they would need to make that very initial assessment. Then they would need to make an initial danger assessment: is this child at harm? Is it a child protection matter, for example. Does it look like it could be? And then they would do – run through – with using a formal assessment instrument as a guide to try and make a call as to whether there needs to be an investigation – a formal child protection investigation. It’s almost like a triage


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service. They would need to make a decision then, and then they categorise those particular children into levels of risk. Is it one that’s immediate that needs to be responded to immediately; is it an intermediate risk – I think it was three to five days from memory, an immediate one had to be responded to within 24 hours; and then they also had a less urgent category that needed to be responded to in around 10 days.

And then as a child worked their way through the system, I suppose, there would be dealing with the concept of a care plan. Would that be right?---Well, the – the idea is that as soon as a child is assessed as needing – as possibly being at harm – harmed, that is referred immediately to one of the regional offices, which is where the investigative social workers are located. So it would – the information on that case would go immediately to that particular office. If it was an urgent one it would be inspected – it would be expected that an investigator, a child protection worker, would immediately go and assess that child’s situation.

And then what?---And after that you would make, you know – they would assess whether the child is indeed being harmed. And they have a notion in child protection called substantiations. They would either substantiate that harm is occurring, or the child is at risk of harm, or it would be unsubstantiated. In other words that there wasn’t evidence that the child was to be harmed. If the child was harmed they would, you know, do – have several options in what they would do, and as I mentioned before, one of the options would be to try and get services into that family to support that family. They would look at extended family to see if a grandmother or an aunty or some other relative could perhaps take that child for a period of time while they tried to stabilise or assess the level of risk in that family. So there are several options, but out of all those options a case plan is developed for how they would respond to that child and that family.

And are those options executed pursuant to orders, child protection orders?---Yes. Or some them – some of those options involve orders and some don’t.

What are the range of orders that can be made?---You know, there are four or five from memory, and I couldn’t - - -

Okay?--- - - - from recollection give you an accurate response. And there might have even been updates to the Act since then.

Sure?---But there is basically – there is a care and protection order when the children come into care.

Can I ask you about the concept of kinship care?---Yes.

Can you explain that to us?---The idea of kinship care is that there always has been the – a preference – or a, you know, the notion that it’s best – if you have to remove a child, or if the assessment is that the child is in such danger that the parents aren’t able to provide the appropriate protection for that child or nurture for that child, then


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the child needs to be placed in a safe place. It’s always – my understanding, it’s always generally been the preference that that safe place is someone within that child’s family. Usually a close relative, an aunt, or a grandmother, a sister. Someone who is in a position to provide that protection and care for that particular child. Now sometimes that’s not possible, or that carer is not available, and so an unrelated carer might be called on. But the strong preference, particularly – well, here in the Northern Territory as well as everywhere else in Australia – is to find a placement with kin as close as possible to that particular child.

And perhaps not the same thing, but can you tell us about the Aboriginal child placement principle?---Yes. The Aboriginal child placement principle in broad terms specifies that where an Aboriginal child needs to be placed – or placed away from their mother and father, that they are placed in the first instance – the first preference they are placed with close kin – other people in the close family. If not, extended kin. If that is not possible then with other Aboriginal people and then, finally, where that’s not feasible or possible the idea is that unrelated placement may be found for that child, as long as the child’s cultural needs are respected and attended to.

It’s described as a principle. Are you able to tell us about the origin of or status of that principle?---The status of it is that it applied in all Australian jurisdictions. As is - - -

Why does it apply. By force of what does it apply?---It’s embedded into all the child protection legislation around the country. So – now the extent to which it’s honoured and implemented varies from state to state. There is some controversy about how you assess, whether it’s implemented accurately or not, but the Institute of Health and Welfare publishes statistics each year from each jurisdiction on how many children, Aboriginal children, are placed with Aboriginal carers.

This is putting you on the spot, and your information may be dated, but are you able to say anything about the extent to which that principle is observed in the Northern Territory?---When we did our investigation, and for the board of inquiry in 2010, the Northern Territory was lagging behind – I – from memory, every other jurisdiction in the placement of Aboriginal children with Aboriginal carers. Now, I am not aware of the latest data on that. I understand that there was significant improvement in the placement – in terms of the percentage of children placed with Aboriginal carers, and that has been improving. Now, I’m not sure in the last two years, because I haven’t followed the last two years of statistics, for the Northern Territory in particular.

Would you see that as an important aspect of the child protection system?---I would see it as a very, very important aspect, particularly here in the Northern Territory where the vast majority of children in care are Aboriginal children. And I think that’s critically important. One of the things we emphasis emphasise, and I think one of the things that’s emphasised around the country, is that the issue of safety is a fundamental issue for all children, whether they are Aboriginal children or non-Aboriginal children, and that issue of safety is a fundamental part of understanding how the child – the Aboriginal placement principle is implemented.


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Okay. Can I ask you some questions, again, by way of background and education about the youth detention system. Can you tell us about the Beijing Rules?---I couldn’t tell you very specifically, but I know that they elaborate on the Convention on the Rights of the Child and specifically look at what’s appropriate in terms of youth detention, and the care of children in detention facilities, as do the Havana Rules. They specifically look at what’s appropriate care and what’s not appropriate care in those facilities – in – you know, in those detention facilities.

And the Havana Rules?---Similarly, and I think they look at in particular issues like isolation of young people and seclusion.

The concept of a behaviour management unit to which we’ve heard reference at the Don Dale Youth Detention Centre – what is a behaviour management unit?---Well, I’m not sure exactly what the definition would be in terms of the use here, but it’s a very complex issue, trying to separate out the idea of punishment from behaviour management. In fact, they are often used in overlapping ways, but I think conceptually what they’ve tried to do here is to say that if there is an issue that requires immediate management of behaviour you might have to segregate or isolate a child from the rest of the detainee population. Now whether, you were doing that purely to maintain safety of the child and others, you might see that as behaviour management – if it is seen as trying to apply some aversive consequence for behaviour that’s more seen as a punishment. So I have some concern about this, because I think sometimes punishment can be disguised as behaviour management.

Do you – we aren’t, in this session perhaps, descending into specific examples, but are you aware of specific examples which might provide a basis for your concern?---Yes, I am.

All right. And are those detailed in your statement?---I’ve touched on it, but they are not detailed.

Are you able to detail them?---I am.

If not now, then in a supplementary statement?---If you wish. Yes.

Yes. All right. Can you tell us about professional assault response training?---Professional response – professional assault response training is one of a number of what we would call de-escalation and safe intervention techniques, packages of techniques. There are a number of these programs, another one is called TCI, therapeutic crisis intervention, and there are a number of packages like this that are designed specifically for use of corrections centres. The idea is that staff are trained in specific ways of responding. First of all, how you de-escalate a crisis with a young person. How you can verbally and physically intervene in a way that de-escalates the crisis, rather than makes it worse. How you talk to the child; how you approach them. Then, where that has not succeeded in reducing the threat, if you do have to calm a child by physically intervening, how you can do that in a safer way as possible – safe and effective a way as possible. So that the part package focuses on


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de-escalation and avoiding conflict in the first instance and then, if you cannot do that, intervening physically in as safe a way as possible, using humane techniques, and techniques that aren’t based on the infliction of harm or pain on a child. Very specifically all these packages warn about certain interventions and certain ways of responding that can cause serious harm or death to young people.

All right. And just while we are discussing some general concepts, if we can get paragraph 99 of your statement up on the screen. You’ve set out observations on possible reforms to youth detention, and we can read for ourselves a lot of what you had there, but I wanted in particular to ask you to elaborate on what you speak about in subparagraph (h), namely the trauma informed practice. Can you just tell us a bit – give us your explanation of that?---One of the – one of the key developments in the whole field of social services – and I call that broadly as working with people who have behaviour or social, mental health challenges, and I’m including here, you know, people in detention, people in the child protection system. There’s this emerging understanding that a very significant number of their behaviours and the issues that are faced are strongly rooted in experiences of childhood adversity. What that means is – for instance some of the research is suggesting now that many aspects – many instances of adult depression, for instance, perhaps over half, are directly related to the accumulation of stressors and traumas in childhood. There is a whole body – a huge, in fact, emerging body of research on the impact on the developing child of exposure to extreme adversity. And I’m talking about things like domestic violence, chronic neglect, exposure to alcohol abuse. The evidence is suggesting that simply being exposed on – a chronic level with domestic violence, for instance, that doesn’t necessarily directly involve the child, has a significant impact on the development of that child’s brain and subsequently their adjustment, their behaviour, their ability to attend in school, etcetera. So there has been this emerging understanding that we need to understand the impacts of severe adversity, how they play out in behaviour. For example, it has been suggested that one of the most significant impacts of severe adversity and – and trauma in childhood is on the developing young person’s inability to safely manage emotions and impulses. In other words, they really struggle with overwhelming rage, fear, sadness, the emotions tend to overwhelm. That’s one of most significant impacts. This is just one of the examples. This has very significant implications for how we manage young people in school, at home, and particularly in places like youth detention centres. What are the issues – are they bringing with them that make them particularly vulnerable to emotional outbursts, and particularly vulnerable also to the responses of adults when the children are behaving like this, which is what we would expect from young people who have been exposed to this sort of adversity? So it’s a whole field of practice, looking at what are the impacts of this early adversity, how do they play out in social settings like schools, families, detention centres, and then what are the implications of this in terms of how we should be responding to these young people? We should be focusing on meeting their needs in these circumstances, not on retraumatising and making matters worse for them. That, essentially, is what we call trauma informed practice. It is understanding what those impacts are, and how we can then adjust our responses to meet the needs of those young people.


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That’s helpful. Thank you. And is it fair to say that, in paragraph 99, you address also a number of other suggestions for possible reforms to the youth detention practices that the Commission should consider?---Yes.

Are there any of those to which you would particularly lend emphasis while you’re here? I mean, as I say, we can and will read them all, but if there was something to which you think our attention should be drawn in particular, this may be an opportunity to do that?---I think I would have mentioned that whole emerging field of research around trauma informed practice - - -

Yes?--- - - - as being perhaps one of the most significant things that can be done. I understand that there are other detention centres for – systems for instance. Certainly there are residential care systems that are adopting a trauma informed perspective. It’s not the only thing – of course it’s not the only consideration, it’s just one of the – a very important consideration, and there are correctional systems that now brand themselves as trauma informed, In other words, they are trying to address the needs of young people that are in that centre and respond in ways that actually bring about positive change, rather than sort of negative interactions that actually potentially cause more harm, both for the young people and for the officers that are involved as well. So I would say that would be the thing that comes immediately to mind. I made quite a number of other suggestions about how youth services, for instance, can be improved as well.

Yes. And the suggestions are all laid there. But can I turn, perhaps, to the concept of how effectively these things might be brought into existence. Starting with the effectiveness of what the Commissioner can do, and someone with the Commissioner’s role, what are the tools that the Commissioner has to improve the lot of vulnerable children? I think you allude to this in your statement, that you were reliant to a large extent upon persuasion and engagement and things like that; is that right?---Sorry, you’re talking about the Children’s Commissioner in - - -

I’m sorry, you the Commissioner, yes. Your former role?---Yes – yes. The Commissioner – the Commissioner’s role, although there are some investigative aspects to it, the focus is not on trying to determine fault and where there is wrong, where there is criminal behaviour, that’s not the focus at all. The Act is set out in ways that the emphasis is on trying to improve services to vulnerable children, and for the most part that has been the emphasis. So the vast majority of complaints actually were received from Child Protection, not from Youth Justice – the vast majority. And, you know – so most of the recommendations were about those sort of services. The recommendations were sometimes discussed, sometimes debated, but very generally accepted by the Child Protection Service and then put into practice. Whether they are a practice directive to do things in a different way; whether they are to revisit a particular case and revisit particular decisions; or, in fact, to change the training of staff. And I think the same principle would happen in other systems, like Youth Justice, too. So the idea is hopefully that when something is detected, where there is a difficulty, that there is some process for ensuring or for encouraging change within that organisation, so that you don’t have to – you know, you don’t


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have to do anything else. Part of it is – part of the persuasion and working with that agency in getting change so that children are safer in those systems.

And so there’s that very basic level of gentle persuasion or encouragement or whatever, but then perhaps as we move up the scale, there is the concept of the public report?---Yes. And, in fact, the way the Act is framed for the Children’s Commissioner – and it’s very similar for the Ombudsman as well, too – there’s no determinative power. The Children’s Commissioner cannot say, “You must do this, or you will do this, or this will be the consequence of what you’ve done.” The whole focus is on working, if possible, with that department to bring around – about positive change. Now, where you get to the point where you don’t think change is going to occur, or there’s some major block in that change occurring, there is provision for a report to be made to the Minister, and subsequently the Minister must table that report within six sitting days. That’s how the Act is framed. That really is the only way that an issue goes beyond the internal processes of trying to bring about change.

So that’s right. We’ve got the internal processes and then the concept of the public report?---Yes.

But I want to go to that, now, because – and you just mentioned the Ombudsman, and we had Ms Richards here yesterday, and indeed you were present in the courtroom when she gave her evidence?---Yes, if - - -

And you’re aware that she gave evidence about her report, a Lifelong Shadow?---Yes.

And made reference to the report in which you were involved, the Growing Them Stronger Together report?---Yes.

I can indicate that her report opens with the rather graphic allusion to Macduff’s caesarean delivery, inasmuch as she says that report was untimely ripped for legislative reasons. Your report, which was close in time and related in subject matter, was also one that you expressed some qualification about the amount of time and the unfinished business, I suppose, that might have been completed had you had more time. Is that correct?---Yes.

Can you just elaborate on that for us, because there – it seems if the public report is, as you just said, the next and really only other option to get things done, what are the limitations such as time that apply to that concept?--- ..... our brief was to review the child protection system. That doesn’t just involve child protection services, it involves the police, it involves education, it involves housing, it involves the whole community. It’s a very, very broad brief. Then there are any number of services that we need to be looking at, priorities, policies, guidelines that we need to be looking at, it’s a massive area. In eight months you’ve got to go from nothing to, I guess, in our instance a 700 page report. You’ve got to interview witnesses, you’ve got to have people that come, that have something to say, give everyone an opportunity to


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contribute to it. You’ve got to determine some of the issues you looked at – you look at only after you’ve been able to hear the witnesses and get statements from the various stakeholders. We had hundreds of those coming in. Then we had to identify who needed to inform this particular – these particular issues. Who were the stakeholders, who were the people that were subject to the investigations, and the services that needed to have a say? Then you need to look at what does the literature say about this, what is the research telling us? Then you have to get all that together, give people all the hearings together, get the – give people the opportunity to give evidence. Many people don’t want to give evidence publicly for obvious reasons, particularly when you’re associated with a child’s protection. And so you need to set up systems for people to do that in camera as well. Then you need to set up systems to protect the witnesses, to meet their emotional needs where – because many of them get extremely stressed by revisiting some of these traumatic issues that have arisen. And then it’s writing after that. So you’ve got to go from nothing to a report, in our case, in eight months. And you can imagine trying to write any book in that period of time. Even the production process itself, just the production process, can take months to do it well. So it’s an – you feel under extraordinary pressure to get these things completed in the time frames to meet the needs of the clients or the people that you’re trying to meet in terms of the services, the recipients of the services, the funders, and the policy makers, and meeting the needs at all those levels. It’s an incredible challenge.

Yes?---Does that capture it?

COMMISSIONER WHITE: You could be describing our Commission, at the moment.

MR CALLAGHAN: And even then, of course, after all of that, which you describe and which we can see in the finished product, you would have heard Ms Richards yesterday query whether certain other thing, whether you should have adopted a different approach or done more in terms of contacting what I will call primary sources. You were in court when she said those things yesterday?---Yes, I – you know, we can have our little quibbles here and there, and I – you know, the fact is we were looking at the system.

Yes?---Not every single case that came into it. There are thousands of cases.

No. And I wasn’t seeking to critique what you did. I suppose I was just asking you to agree with – however much you did there will be always the suggestion you could have done more?---Absolutely. And essentially we are looking at the same issues. We were both concerned with the same – we had the same concerns. Why aren’t the intake services meeting the needs of the people referring? Why are cases being – seem to be swept under the carpet and not investigated properly? Why are children being left at risk? We have the same issues. We may have some differences about how we go about it, in – you know, the specific methodologies, but essentially I think we are on the same page in terms of our concerns about the same issue.


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And, in fact, you’ve made your response to the comment that she made about the availability of information - - -?---

COMMISSIONER WHITE: I’m sorry, you’re dropping your voice.

MR CALLAGHAN: I’m sorry, Commissioner. Ms Richards made a comment about availability of information from you, and you’ve responded to that in your statement; is that correct?---Yes.

Is there anything you wish to add, is all I’m saying?---I just add that I – you know, the fundamental issues are very similar, and I agree with a lot of what is in Ms Richards’ report. The cases she was primarily looking at occurred before our investigation. The issues to do with the intake was a very key focus of our major investigation and I do note that in fact I think that was one of the very significant changes that immediately came into place. The whole intake service was radically changed and, very significantly, got rid of that backlog. I think, within 12 months there was hardly any backlog at all, if any. Unfortunately, I do have to say that does appear to be starting to grow again, which is a challenge I think for child protection services all around this country. But there were very significant changes to the intake services that occurred.

Well, can we focus on that, because that would appear to be something in the nature of a success story as the result of a reporting exercise; is that right?---I think it was a success story. Yes.

Okay. Why? Tell us the secret. How does a report of that nature actually achieve something really positive, by the sounds of things?---I think the keys – keys there were to identify specifically what the problems were, and Ms Richards talked about some of them, but actually a lot more extensive than that, if you have a look at our report.

Yes?---Because not only were, you know, the cases not being dealt with in terms of the flow procedure that we saw, but we also discovered that there were a significant number of cases that were – actually referred to the regions, actually received in the regions, but the investigations actually didn’t occur there. So the problem was not just in the intake: the problem was actually in the regions and how cases were not actually being investigated. And I ..... I think that was a very, very significant problem.

All right. Well, let’s – I’m sorry?---Yes. So identifying the nature of the problem, where it’s happening, putting a real focus on it, and then saying, “Here are what we think would address this problem,” but also specifically having a mechanism, an accountability mechanism, an external accountability mechanism, to ensure that within a certain period of time we can look at the data and see whether the change was occurring. And I remember that the department after that report – I think was from memory was publishing, three monthly, at least very regular updates on what they were doing to address that backlog of unaddressed child protection cases.


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Well, you anticipated my next question, which was moving from the specific example to the general concept of an external accountability - - -?---Yes.

- - - mechanism. And for the purposes of your report you are able to describe how and what you did to that end?---I actually didn’t do that external report, it wasn’t part of my responsibilities. The government at the time decided – I don’t know why that was the case, I presume it was considered that I might have some conflict of interest, having made the recommendations or being part of the Board of Inquiry that made those recommendations to be also reviewing them. But they made the decision, and which I supported actually, to have an external monitoring committee, a group of experts from across this territory but also around Australia to meet regularly, to collect the data, to talk to the service providers, to talk to the recipients, I understand, in some cases of the services, and then to do reports back to the government which were tabled in Parliament. That happened on a regular basis until the change of government. I personally think that was very good practice in ensuring that recommendations were kept. In other words, it wasn’t just up to the government – the government departments to say here’s what we are doing, it’s an external committee that’s reviewing what they are doing and then reporting back to government.

And do you say that was effective up until the change of government?---Well, it was in place - - -

In place?--- - - - up to the change of government, and they made several reports.

And what happened then? We are talking about the change of government in 2012?---2012, about August 2012. There was a significant policy change, and I don’t think it affected just that committee. A lot of advisory committees were defunded and closed down at that stage, and the external monitoring committee was one of them. So there was no external accountability mechanism to ensure that these things were occurring. Gradually my perception was it faded – the recommendations faded. Even though there was some broad commitment to the Board of Inquiry recommendations – there was a broad commitment to them except for, I think it was about nine from memory, that were specifically excluded from that commitment, and then I think it was in 2014 there was a specific statement to the effect the government would no longer be adhering to those recommendations, or committed to implementing them.

Just excuse me. We might get up on the screen a copy of the Growing them Stronger report. That is the report you prepared about which we have been speaking; is that correct?---That’s the summary - - -

The front page of it?--- - - - of it.

The summary of it. There are two volumes of the report. As you said, it’s many hundreds of pages, is that correct?---Yes.


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Yes. I tender a copy of the report.

COMMISSIONER WHITE: The summary.

MR CALLAGHAN: Of the whole report. It is electronically available, as I understand it.

COMMISSIONER WHITE: Yes. Do you want them as separate exhibits? That is, the summary – which is a substantial document on its own, Dr Bath, I think that this is nearly 100 pages long, and then the report. So I will just perhaps make them two separate exhibits.

MR CALLAGHAN: Thank you. And the response .....

COMMISSIONER WHITE: Thank you. Exhibit 13 for the summary and exhibit 14 for the report.

EXHIBIT #13 SUMMARY OF GROWING THEM STRONGER REPORT

EXHIBIT #14 GROWING THEM STRONGER REPORT

MR CALLAGHAN: And we might also tender, since we’ve made reference to it, your response to the Ombudsman, which will be on the screen any second now. There we go. Again that’s your response to the report about which we heard yesterday; is that correct?---Yes. So that only really looked at things that are relevant to my functions.

I understand?---There were other responses that we had that aren’t contained in there. So it’s limited, but it’s a response.

Yes. Yes. But I will tender that as well.

COMMISSIONER WHITE: Exhibit 15 to the response to the Ombudsman’s report. The Children’s Commissioner’s report responding to the Ombudsman’s report. That’s a bit clunky. That’s exhibit 15.

EXHIBIT #15 CHILDREN’S COMMISSIONER’S REPORT RESPONDING TO OMBUDSMAN’S REPORT

MR CALLAGHAN: Finally, for this instalment of your evidence, Dr Bath, I just wonder with the benefit of hindsight and experience whether – we’ve discussed the time limitations and the amount of work that was involved in the preparation of your


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report, but whether there is anything that you might have appreciated having, or any suggestions you might make, as to how your capacity to find and propose solutions to the problems might have been improved?---Well, probably more time.

Time?---It is the one that comes to mind, because – you know, focus groups of, you know, people looking at specific issues would have been an important issue. One – for example, there are many, many practice issues that touched on that we – you know, would have benefitted from just having a bit more time and coming up with much more specific recommendations. I think what comes to mind is something like the family placement approach to making child protection decisions, which originated in New Zealand but has been used widely in parts of Australia, where you try and – instead of just making an arbitrary decision as a child protection service, call the extended family together and facilitate discussion in that family around what’s the best way forward to ensure the safety of this child within this family context. You know, enabling, encouraging, resourcing the broader family to be able to come up with a solution and then to be able to support them in implementing that solution. It seems to be a much more respectful approach. Much more – how can I say, aligned with the values and interests of the very significant Aboriginal population here in the Northern Territory, with large extended families, and resources in those extended families to be able to meet the protective needs. Not in every case, but in many cases of the children involved. There was very promising start on trying to respond to setting up systems like this and we made some recommendations to the effect that the government should explore how to go down that particular road, but it would have been good to spend a lot more time and getting people together to explore really how this could be implemented across the Territory. We hoped it would, but it was also one of the initiatives that fell foul to the – you know, the cuts that occurred with the incoming government.

Thank you. Commissioners, it has been well flagged that Dr Bath will be returning to give evidence about specific matters and at this point those were the general matters that I wish to canvass with him by way of overview.

COMMISSIONER WHITE: Have you canvassed with other representatives whether they wish to ask any questions of Dr Bath in respect of this tranche of his evidence?

MR CALLAGHAN: I haven’t, because in my submission that should all be done in one go.

COMMISSIONER WHITE: All right.

MR CALLAGHAN: That Dr Bath should only be exposed to cross-examination from each of the - - -

COMMISSIONER WHITE: Some of it, of course, could hardly be called cross-examination, Mr Callaghan.


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MR CALLAGHAN: Quite.

COMMISSIONER WHITE: .....

MR CALLAGHAN: Quite. But I think - - -

COMMISSIONER WHITE: Terribly friendly questions.

MR CALLAGHAN: - - - also, just with a view to the management of our witness list today, it might be appropriate if Dr Bath was stood down at this stage and we will - - -

COMMISSIONER WHITE: I will take that advice. Are you happy with that?

COMMISSIONER GOODA: Yes.

COMMISSIONER WHITE: Thank you, Dr Bath, for this morning. I won’t release you because, as you clearly understand, you’re going to have another session in the witness box for us later on in the life of the Commission. So thanks for your evidence today. Thank you.

<THE WITNESS WITHDREW [11.24 am]

COMMISSIONER WHITE: It might be convenient to take the morning break now - - -

MR CALLAGHAN: Thank you.

COMMISSIONER WHITE: - - - Mr Callaghan, before you call your next witness. We will resume at quarter to 12. Thank you.

ADJOURNED [11.24 am]

RESUMED [11.47 am]

MR CALLAGHAN: I call Colleen Gwynne.

MR A. GEORGE: Commissioners, if I may briefly announce my appearance my surname is George, initial A of counsel, and I represent Ms Gwynne.

COMMISSIONER WHITE: Thank you, Mr George.

.ROYAL COMMISSION 20161012 P-127 ©Commonwealth of Australia Transcript in Confidence

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<COLLEEN MARIE GWYNNE, AFFIRMED [11.47 am]

<EXAMINATION-IN-CHIEF BY MR CALLAGHAN [11.48 am]

MR CALLAGHAN: Could you please tell the Commission your name and current occupation?---Colleen Marie Gwynne, the current Northern Territory Children’s Commissioner.

When did you become Children’s Commissioner, Ms Gwynne?---In an acting capacity in March 2015, and then as a permanent Commissioner in June 2015.

You’ve prepared a statement in relation to these proceedings before this Commission; is that correct?---That’s correct.

And a copy of that statement appears on the screen in front of you, and you have your own copy there; is that correct?---Yes, I do.

Yes. I tender that statement, and I’m not tendering the annexures at this stage. It is just the statement of the witness to be tendered.

COMMISSIONER WHITE: Exhibit 16 for Colleen Gwynne’s statement.

EXHIBIT #16 STATEMENT OF COLLEEN GWYNNE

MR CALLAGHAN: Ms Gwynne, have you been present today when Dr Bath was giving evidence?---Yes, I have.

So we don’t need to repeat a lot of the evidence that he might have given about the nature of the office and its development, but are you in a position to say how, if at all, the role of Children’s Commissioner has changed since he left the office and since you occupied it?---Well, in terms of the legislation, there has been no change.

Thank you?---Staffing has remained the same, so I would say no changes. No significant fundamental changes.

All right. Can I take you to paragraph 50 of your statement, and whilst Dr Bath might have given us some history of the office, you’re in the position to tell us about the way things are now. Your office sits within, as you say, the Attorney-General’s Department, and you interact with a number of independent bodies. Can I ask you this: given the nature of where you sit and the interaction required, are there either any gaps or any unnecessary duplication, to your mind, in the oversight mechanisms in the Northern Territory that relate to children and young people?---Duplication, no.

.ROYAL COMMISSION 20161012 P-128 C.M. GWYNNE XN©Commonwealth of Australia Transcript in Confidence MR CALLAGHAN

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I think a significant gap would be the access to young people who are vulnerable under the Act.

Can you elaborate on that for us, please?---I think Commissioner Mitchell did touch on this yesterday, but section 34 of my Act talks about my power I have to access young people who are, under the terms of the Act, vulnerable. That’s not unfettered access, it’s – it has to be done through arrangement. I think that that Act, that power is – falls short of what’s required to be able to monitor the wellbeing of young people who are in child protection, youth justice, all those other areas, including mental health facilities, who have disabilities or who are engaged in a volatile – volatile substance program.

So that’s something you don’t have, and it’s not covered by anyone else that you interact with?---No, I don’t believe any of the independents have such a power.

Well, let’s deal with it now. What specifically would such a power look like? Where would you – it would be an amendment to your Act, would it?---Yes. Can I refer to some notes in relation to that?

I’m sure - - -

COMMISSIONER WHITE: Yes, of course?---Look, currently section 34 under my Act deals with my – if I can just find it. For performing my functions:

…the commissioner may request a person to allow the commissioner to have contact with a child who is, or whom the commissioner reasonably believes to be: a vulnerable child; or a witness for a matter which an inquiry under part 6 or a complaint or investigation relates.

So this:

…request must specify a time and place for that contact.

So basically I think there – we would be better served by amending that part of the legislation to remove the requirement to be able to arrange a suitable time and place.

MR CALLAGHAN: Would that be enough?---Well - - -

I was just wondering – you can request. I perhaps wrongly took you at the outset to be suggesting that you might like the power to require, rather than request?---Well, I guess my view is that if we are having to make a formal request to speak to a vulnerable child, then that request could be delayed somewhat, up to weeks and months, and if we are dealing with a complaint that we see there’s some element of urgency, particularly around the current safety of that child, I don’t think that’s fulfilling my function as a Children’s Commissioner.


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Quite. And I’m sure it’s a very bad thing to suggest amendments to legislation on the run, and I’m doing this spontaneously, but what if you changed the word “request”, to “Require”. Would that be something that would deal with your concern?---So you’re suggesting – can you just repeat that, please.

Well, as I read the power, you can request someone to do things?---I think that you also may run the risk of – if you request them they still – they can still determine the specified time.

Yes. Alright. We might – you’ve drawn our attention to a gap, and we can think about ways of looking at that later. Thank you. Can I take to you paragraph 31 of your statement, and can we just deal with some of the concepts that are involved there. In subparagraph (a), you talk about the classification assessment processes for young people in youth detention, and the inadequate management and transparency thereof. Can you just elaborate on that for us, please?---Within the detention centre there’s a classification system set up to – which basically allows those in detention to have certain restrictions if they are under a particular classification. Often the complaints that come to us revolve around young people not understanding why they are a particular classification, how they came to be at that classification, and for how long they would be at that classification. So yes, as stated in my statement, that has been a common complaint to our office.

COMMISSIONER WHITE: Could you perhaps just elaborate on the classification system within the youth detention system, if you’re able?---Yes. So with the highest classification – so the highest risk – they wear a particular coloured shirt which then identifies that young person as at that specified risk. So therefore at a particular high risk they are often isolated from other detainees, and therein lies the problem when there is no communication or understanding about how they came to be with that classification, or how long they would remain in that classification. So each classification wears a different coloured shirt. I can’t recall the actual classifications at this time, but I could certainly provide evidence on that later.

So you might wear, for example, a bright red T-shirt if you’re - - -?---Correct.

- - - regarded high risk and a blue one if you’re classified as low risk?---That’s correct, Commissioner.

And you might – even after the classification has changed, well, in your experience with the complaints will there necessarily be a change of T-shirt?---That’s correct. It does signify what – what classification they currently have.

Okay. Thank you.

MR CALLAGHAN: I was taking you to paragraph 31 and seeking a greater understanding of some of the terms used there, such as therapeutic out of home care placement. We can probably understand what out of home care is but is therapeutic out of home care a specific category?---With some children in the care of the chief


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executive officer of the-then Children and Families Department, which is now the Department of Territory Families, the needs of some of those young people are significant in terms of the complex trauma that they may be experiencing, a number of cognitive or behaviour issues. The complaint relates to the lack of options for placement of children with such complex needs, and in the Northern Territory we don’t have a purpose – a residential facility that has with it a therapeutic component. There’s no purpose built facility for that purpose.

Is it – is it possible to say, by reference to other jurisdictions, are they normally purpose-built, this sort of facility, or - - -?---There are facilities across Australia that do exist. I think there are other jurisdictions that are similar to us that don’t have that capacity, which is certainly something that is needed when dealing with young people who are exhibiting a whole range of complex mental health, I guess, issues.

In subparagraph (d) you have the term “self-placing” in inverted commas. Can you elaborate on that?---Yes. Self-placing is a – we call it unauthorised placement, or often it’s referred to as placement drift, and it is associated with a young person who is being placed in an out of home care placement, and often returns to family or kin without the formal support of a – an order under the Care and Protection of Children’s Act. There are a number of issues here. One is that often this is done and the family whom the young person returns to hasn’t been reassessed, so they may be returning to what is a – an unsafe environment. The other thing – the other issue is it may also place added financial pressures on that family, because by virtue of the fact that this young person is still under the formal – is still formally nominated in an order, means that that family that he or she is placing with does not get any financial benefits for having that young person in their care. The issue I see is the lack of intensive case management of young people who are placed in – away from their family. Often the circumstances of the family do change, but the case isn’t – I guess doesn’t – it’s not reassessed to the same pace, and often young people are away from a formal placement for years without any formal change in their official order. And, if I can give you an example, we have just undertaken a number of audits in Katherine and Alice Springs for the purpose of our annual report, and of the – in looking at the – looking at 20 children in this category, so those that are placed, are under a care arrangement – so let me just state this is a 10 per cent sample of this cohort. So what we found is two were interstate and eight out of the 18 were self-placing. And often – sorry, and that is what we find is documented in their care plan. Often you will find that the staff have some difficulty in exercising statutory power to return the child, because they feel that the trauma experienced by returning that child to their placement is often too extreme.

All right.

COMMISSIONER GOODA: Ms Gwynne are you saying that – and just seeking clarification, that the self-placing is these children leaving the care under orders. They have been ordered into a particular place, and then they just self-place?---Yes.


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And the department – or the system – or whatever it is, the service doesn’t know where they are?---Look, most times they do know where they are. There are times where young people are unhappy in their placement and they constantly abscond. Then that becomes also an issue for police, and having to go out and try and find that child to take them back, and they abscond again. So it’s a kind of a vicious cycle where the young people are placed in a placement where – particularly where there is no cultural connection in that placement, and there’s this constant absconding. Or in one particular case that we found recently, a 15 year old girl had self-placed since she was 11, and there has been no change in her order.

And that’s where I – I’m thinking about ,is there any opportunity to change those orders to - - -?---Look, I - - -

- - - accommodate - - -?---Yes, sorry.

- - - the child’s, obviously, unhappiness in the place where they are placed?---Commissioner, I think it’s directly related to intensive case management of children, when they are removed from their family. The decision about the permanency and that placement, or the focus on reunification, needs to be something that is attended to constantly, and I – my belief is that the resources of the department make that almost impossible with the number of cases that they carry. So often you see with their case files that the true reflection of the status of that family or that child is not depicted in the case files, and often when we are following up matters we can’t find the current status inside that – those records and that makes it difficult.

Thank you.

MR CALLAGHAN: When you speak in this context about the department, we are talking about Territory Families; is that correct? Previously Department for Children and Families?---Yes. So Territory Families is an amalgamation of the – part of the old Correctional Services – Department of Correctional Services, Youth Justice is now included alongside the old Department of Children’s and Families, and Domestic Violence Directorate. And I think there are men’s and women’s policy also included in that bigger department.

Right. So I wanted to go back a step and just examine the relationship between your office and that department, Territory Families. What is the nature of the communication order, the channels of communication, between you and them?---Yes. As you can understand that they are under a significant transformation at the moment to – to understand the status of the services that department is now vested with delivering. The communication and consultation is frequent at the moment. We – I have communication from the now chief executive officer of Territory Families almost on a daily basis. So, yes, I would say it was frequent and quite intense in terms of the issues that they are consulting with us about.

That’s at your level. What about at the level of interaction between your staff and children under child protection orders? I’m talking here about in the community.


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We will get to youth detention in a moment, but what level and frequency of interaction can staff from your office have with children under child protection orders?---The issue for us is most of our contact with children under orders is generally as a result of a complaint. It’s quite reactive. We do participate in a range of programs, particularly with organisations such as Create, who support children in care, but it’s mostly a capacity issue within my office to be able to be more proactive in having that contact, not only with children but with community members and professionals, and so they understand my role and the role of my office in terms of supporting and trying to improve the outcomes for vulnerable children.

Well, that leads me to more specific questions about concerns that you might have about any failings or deficiencies in the child protection system. And at this stage we are talking in general terms. But, for example, what – do you have a view or have something to say about the availability or lack thereof of early intervention services for vulnerable children?---Yes, I certainly think there is a shortage of services, therapeutic type services, not only for the child but for the family, and I’m talking about the very earliest interventions so that universal space where families receive support for a number of reasons, whether it’s drug and alcohol abuse, domestic violence, financial hardship, mental health issues. A range of matters that families are certainly struggling with. If we look at young people who end up in the youth justice system, or in child protection, two of the biggest triggers are poor parenting and – and little education. And so my belief is if we can place much more emphasis on the first, even the first 100 days of a child’s life, and the family who are tasked with supporting that child, then we will be in a much better position, not having our systems being absolutely inundated with young people who, by the time –reach these tertiary type of systems, are seriously affected by traumatic experiences that they’ve already endured in quite dysfunctional living arrangements.

All right. You heard Dr Bath when I asked him questions about kinship care, and the Aboriginal placement principle. Are you in a position to make any observation about its infliction in the Northern Territory?---Yes, I can. I will just refer to some notes I have.

Please?---In the submission I made I think I do make reference to that. I think it’s paragraph 54, from memory. No, it’s not 54. Paragraph 46, my apologies. I think the telling point there is the territory’s indigenous population is around 30 per cent, nationally it’s about 3 per cent. However, if you look at the number of children with – the Northern Territory is the highest placement rate in the country, 14.9 per cent per 1000 children compared to a national rate of 8.1. However, we have comparatively low rate of placement of Aboriginal children – 32.7 per 1000 compared to the national rate of 51.4. That would lend me to think that we could improve significantly in placing Aboriginal children with Aboriginal families.

Can I ask you about the particular challenges that the child protection system in this territory faces. Challenges raised by the propositions that there is a relatively small population spread over a very large geographical area. Can you give us some oversight in the sorts of challenges that are involved by reason of that?---Yes,


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certainly. The Northern Territory is extremely challenged by the remoteness of a lot of the complex social issues that we deal with from day to day. However, I believe that local child protection responses and strategies can work, and there are some evidence – or not evidence, but some pockets of it that I think could be expanded. There are child safety responses implemented in some communities that could be tapped in and formally supported. For example, in many communities there is known safe houses. Sometimes a safe house isn’t a formal set up, it’s a grandmother in the community, someone well known and someone trusted by families there, and often when antisocial issues arrive in communities these houses are used as a gathering point, particularly for young children who are in fear of their own safety when there’s drinking and fighting occurring. I think safe houses and placement should be proactively assessed and endorsed to provide crisis placement accommodation for children in their own communities. Some communities are very well established in very informal arrangements, and I think an element of support around how those safe places could operate could be a really good starting point.

COMMISSIONER WHITE: Ms Gwynne, could I ask you, were they own initiative – that is community’s own initiative to set up those safe houses or was there some government input into them?---Yes, there are two distinctions here. There are safe houses, that is a government instigated initiative, they are more of a formal arrangement. But you will find in many communities there are safe places that are quite well known to those people in the community - - -

Have you got – have you got the lone fly in the courtroom?---I have the fly here. Yes. It has gone. Where young people feel safe to go, they are often the – a grandmother or someone often with some status in that community, and you will see them from time to time in different communities, and I think with some support we could use those centres more formally or – it happens anyway, it’s just some of those houses are sometimes extremely overcrowded so – and it has worked for many, many years and there would be people in this room that could talk – more informed on this, but I’ve seen examples of it, and I’ve had a lot of people telling me from communities that they see it as a way of – a starting point for providing safe havens for young people.

Have you given any thought as to how that might be supported by government, Ms Gwynne?---Yes, I think the Housing Department would be a really good starting point, in terms of suitable housing, and certainly supported through some training and support for those people that often look after young people who are severely traumatised. The assistance with the basic needs that a house like that would have in terms of, you know, food, those things, that contribute to wellbeing of young people.

Thank you.

MR CALLAGHAN: It - - -?---I’ve got – I’ve got another point, if you - - -

Please?---Yes. In addition, the – Territory Families, as it is now, also has a Remote Family Support Service, and its key role is remote child protection in communities.


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The role and responsibilities of family support practitioners within the program, I think, is really critical. So these practitioners are based in select Aboriginal communities, and are often the central coordination point for child protection and family support delivery service. My observation is they do a remarkable job, and I think it’s a really sound framework that again could be expanded upon with further support. More communities, ensuring that those people in communities also have a role to play in how these are set up, and how – who – who, I guess, is undertaking that sort of role in particular communities, but I do think it’s a really good start, and it’s a really good program and their role – I met with a number of them in Alice Springs a number of months ago and if it wasn’t for some time constraints I was going to go out to some communities with them, but their approach is quite remarkable and I have heard from people in communities in Central Australia that they believe that that support service has been quite critical in particular communities.

MR CALLAGHAN: Thank you. We haven’t picked up the name of the organisation that you are talking about?---The current one, that’s done by Territory Families. It’s a government funded initiative that sits within Children’s and Families.

Remote family?---It’s Remote Family Support Service.

Within the department. Right. And just to be clear, because the questioning started with my asking you about the challenges faced because of the vast distances that we are talking about, you’ve been responding in terms of local strategies and by talking about work in communities. Are we talking about, in effect, a decentralised sort of approach to - - -?---Yes.

Or supporting decentralised services?---I’m talking about a place based approach, where communities – you build capacity within communities to provide services within those communities, but supported by central – I guess not a central department, but a – they have to be – communities have to be well supported in a whole range of ways to make these place based models successful. I don’t think that – in the Northern Territory that we could ever – ever think that we are going to be able to fully support vulnerable children in communities from Darwin or Alice Springs. It just could never happen. We need to build capacity in the communities, or certainly areas that are closer to communities, and you may look at models such as central hubs in some of the larger communities like Borroloola, where, you know, you provide greater a number of services that can then service the outlying areas, but we need to look more at what we can do in each community and how to build capacity with Aboriginal people in communities.

Is – am I understanding you rightly, that there are what we might loosely call success stories in this regard to which you would point, but that that model needs to be extended to everywhere?---Yes. I think we have the beginnings of something that could work, and often when you look at services in communities, particularly in the Northern Territory, we’ve been grappling with these issues for many, many years


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and I don’t think it needs to – a reinvention, it is what is working, and what could we further support, and what fits into the Northern Territory context. And that’s why I’ve picked those two things.

If we are at the beginning of something useful, what do you see as the pitfalls that might derail the process?---A couple of things. I think a commitment that exceeds election cycles. The – an element of expertise in these areas, and certainly Aboriginal people have got to be better represented in setting up, having a say and designing some of these – I guess, frameworks that fit within their communities. Often the statutory child protection, western model, doesn’t fit within only communities, and we sometimes try and squeeze a square peg into a round hole. And there has to be a different way of structuring responses to the issues that are predominantly associated with indigenous people. If you look at the overrepresentation, I think we are looking at the wrong model often in trying to deal with those issues that – not only in just communities, but in the urban setting too.

And as the first part of what you’re saying then, it’s all very well to talk about local strategies, but the strategy has to reflect the locality, which might have some quite specific - - -?---Correct. With those local people.

Yes. Alright. Can we turn the topic to youth detention, and perhaps begin by asking you for an overview of the work – the relationship between your office and the Department of Corrective Services?---The relationship has always – in my time has always been very professional. We – I can call the Corrections Commissioner at any time and the discussion is always very open. I can’t – you know, the relationship has – is – there is open and transparent communication, and I would say that about the current and the previous commissioner.

All right. So, again, that’s at your level. What about at the level of a child in a detention centre? What is the mode or method of communication that they might enjoy with your office, particularly in terms obviously of receiving complaints?---Yes. I think there is a phone that is situated out at the Don Dale Centre and one in the Alice Springs Youth Detention Centre, where they can pick the phone up and it will page them straight through to us in our office and they often use that. The other avenue is we visit the detention centre, not as much as we would like to. Often, again, it’s in response to a complaint or complaints that we receive. Most of the detainees know the staff in my office by name. They do have a relationship with them, where they develop a certain amount of rapport with my staff, and certainly an amount of trust in dealing with them. So, look, there – in terms of being able to contact us, I don’t see there’s a lot of issues. I think if I were to point at one area that I think is a gap, I don’t think we spend enough time out there when we’re not dealing with complaints.

I was going to ask you that. You said you don’t visit as much as you would like to. How often would you like to?---Look, I would think that – it’s difficult. I don’t have staff in Alice Springs, but I think we should be down there at least once every month, and I would like to see us visit the centres at least a month, but it should be more


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frequent. Having said that though, a number of services do visit young people in the detention centres, particularly legal advocates, different support people, who we are in contact with in terms of how the young people are travelling.

Do you perceive factors which might deter or prevent vulnerable children from making a complaint to your office – we had suggestions, I think yesterday about retribution and that sort of thing. Do you have any sense of those factors being at work?---I don’t have any direct – there has been – from time to time a young person will say that they are concerned about retribution from particular officers. It’s not a common theme that comes to our office, but then again I – often when we are there we are responding to a complaint that has come to us. So, you know, they have already made that choice to speak to our office. There has certainly been young people who have expressed concerns about being targeted, from time to time, by staff there.

And when your staff does visit, is access unrestricted in terms of – do you get to the behavioural management unit or high security areas?---Yes. Never had a problem with accessing all areas of the detention centre.

Are there any reporting obligations that the department has towards you as regards vulnerable children?---The – which department - - -

Sorry, Corrective Services?---Not legislated. They do provide us with reports. We get reports on the number of detainees entering and exiting the detention centres. We also get a summary every month of the complaints internally to the staff there, from the detainees, and they – that’s a report that the Commissioner has agreed to provide my office. That’s just an agreement, not – not legislated.

Well, you are able to suggest anything, either generally or specifically about your powers or any reforms that ought to be made as regards youth detention?---Look, I – there are a number. I think the – within the youth detention centres, I think currently there is lacking any real quality assurance, quality control, over critical decisions that are made. And they are decisions where young people are placed at risk, isolated, or an element of force used in dealing with young people. I – so there’s two parts to this. One is the current auditing that occurs within the agency itself. I don’t see that’s robust enough. At times I’m not sure there is any auditing that occurs. And any oversight in addition to that, there’s no – currently no provision to oversight and that needs to be – that needs to occur almost, you know, immediately that those critical decisions that are made that impact on the rights of young people, there has to be some independent oversight of those decisions and the rationale for those decisions.

And how should that occur?---I believe that my office is best placed to – to oversight that, particularly because the mandate is the wellbeing of vulnerable children, and every child in detention is a vulnerable child.


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So your office independent, having powers to monitor the status of children in detention, is that - - -?---That’s correct, but I think that’s a second overlay. I think the department also should have a responsibility to be auditing themselves, and auditing and reviewing decisions that – operational decisions that they make on a daily basis.

And we’re talking legislative amendments to make this happen?---Yes.

Do you have an opinion about the adoption of the Havana Rules and the Beijing Rules?---Look, any layer of oversight is welcomed, however I stress that if we start putting layer over layer we will – it will bog the department down in reporting as opposed to doing, and we want to see them, I guess, providing more support to young people in detention. I think we need to be clear about what oversight we have and who does it, and under what framework that sits. Commissioner Mitchell spoke yesterday about the optional protocol – I always forget the name of that – OPCAT.

You can say OPCAT?---The Protocol to the Convention against - - -

COMMISSIONER WHITE: Torture?---Yes. The – so we’re talking about that, we’re talking about the Havana rules, we’re talking about the Beijing. They are all valid regimes for ensuring the human rights of young people. We need to be careful we don’t run the risk of having oversight overload, where a whole range of people going into the detention centre and the young people out there will become overwhelmed. There needs to be relationships with young people and an element of trust built up, not only with the young people, but with the staff in there as well. Even though you have an oversight mechanism, it doesn’t mean you are working at odds with the department that has responsibility for the detention of young people.

MR CALLAGHAN: I think the shorthand form that was suggested was more contact with fewer people; is that - - -?---Absolutely.

And I might conclude my questions for this part of your evidence by asking you about what I think you believe is a positive development in the separation of administration of youth detention facilities from the separation of administration – from the administration of adult correctional services, is that right?---Yes, that’s correct.

Can you just give us an update on that?---Look, I think to have youth justice, or youth detention sitting inside a corrections department who’s vested with the responsibility for the – I guess adult custodial responses is very different to the way you deal with young people in detention. The young people’s needs are quite different. It’s – people see it as the same because it’s an element of custody or detention, or deprivation of liberty. It’s actually very different and it needs to be dealt with very differently. You do run the risk of blurring the lines if you’re sitting within a corrections department. Even to the extent that you may use the adult facility as an adjunct to the youth facility. Within a sole youth justice area that has a youth detention and child protection all in one department, I would hope would see a


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very different approach to that cohort that find themselves before the criminal – or the youth justice system, because those young people are often also the young people that are dealt with under the auspices of child protection.

COMMISSIONER WHITE: I take it then that you would have a view about the use of corrections officers who transition either as required, or by career choice, from the adult prison system into the youth detention system?---I don’t have an issue with it as long as the screening is the same in terms of the recruitment of those officers. And what I mean by that is the psychometric testing that’s required for people working in this space, they are trained the same. I don’t have an issue per se, I know some of the adult custodial officers actually really prefer to be working with young people.

Isn’t it, from what you’ve been saying a completely different environment though with youth in detention so that the training systems, one would have thought, would need to be appreciably different?---Yes, Commissioner. I will – I will just clarify that. What I’m saying is under the current - - -

I think you’ve just lost sound a bit?---I’ve got it back.

It’s back on again?---I’m back on. My observation is some of the adult custodial officers that came over, at a time where there was a lot of stress in the centre – I know some of them actually would see that as a future career choice. To have them there with their current training and their – I guess their current approach is not sustainable. I would make that distinction: they are two different areas of work. People that work within – with youth have to have an element of expertise. It is a really challenging area, particularly when you’re dealing with a number of young people who are exhibiting signs of complex trauma which manifests itself in quite challenging behaviours. To be able to work with young people who find it very difficult to manage their own tempers or behaviours, or regulate their own emotions, you need to have an element of expertise and a number of – significant tool kit to be able to deal with how young people are acting out and, you know, that requires significant expertise, and ongoing training and support, and really robust directives that are – that give you the confidence and support in doing what you need to do in detention centres. That has to be well supported by people who have got good clinical background in being able to deal with young people who – who are – have got really high needs.

Right. Thank you. I might just ask you another question, if I may. I understand that it’s the Department of Education that delivers the education services within youth detention systems here?---That’s correct.

Does your office have any power – I’ve looked at the Act, and I can’t really see it, I might say, to make any recommendations about the quality or the kind or the nature of the education programs that you observe on your visits in the youth detention centres?---Well, the young people are part of the main curriculum, so the proper education curriculum that exists in the Northern Territory. We do at times receive


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complaints from young people about the level of education they may be receiving, and we have dealt with the previous CEO of Department of Education and his staff, and they’ve been quite responsive around dealing with young people’s needs. One of the issues that we did find is that young people crave the education. We’ve – and at times part of the classification and the punishment has been to remove the education component of their day, whereas we say that it should be – that is the time you want to try and engage them in education, and that has also been a complaint theme where the education has been removed for safety reasons, and we would like to see some work done to try and facilitate the education where possible.

Thank you. Thanks Mr Callaghan.

MR CALLAGHAN: In conclusion for this session, Ms Gwynne, can I take you to paragraphs 54 to 59 of your statement, where you make some highly relevant observations about recommendations. And thank you, and we can read for ourselves what you’ve written there, but I just wondered whether at this point you had anything to add or emphasise to that particular part of your statement?---Yes. My observation, one of the biggest problems that I’ve struck is the – the different cultures that exist within the Northern Territory. And I don’t mean cultures, I mean that that – the education around what we need to do for the cohort that ends up in our youth detention systems. Now, often our recommendations are certainly endorsed, but it’s the implementation that I think often goes – is not particularly effective. And when I say that is – I think we do – there is an element of box ticking without understanding the broader implications of what the recommendation means. And if I can give you an example, it’s quite a low level example but it does demonstrate what I mean: we recommended that the phones in the detention centres are available to young people when they need to ring our office. Now, yes, it was – the phones were physically working, but what they did is they removed the ability for young people to be able to use the phones when – not always, but at times use the phones when they were in isolation. My view is that the reason why we want the phones working is when young people are at their lowest and need to speak to a third party the most, or have access to us to make a complaint, then they can’t do it. So it’s kind of that narrow view of what the recommendation is, and often it’s that box ticking that occurs without looking at it holistically, and why we would make those recommendations. So, yes, and that that’s sort of taking into consideration the broader detention regime and that – as Dr Bath spoke about the trauma informed approach and being able to bring everything into place and looking at the recommendations more broadly. Setting some really robust and strict time frames around implementation and then having a well – or an expert group of people who can be part of the implementation and provide advice as the implementation takes place. Part of that needs to be – the implementation also needs to have people who are not directly involved with the running of the centre to have oversight and, I guess, ensure that the recommendations continue to be implemented in a way that is more holistic. Yes, I guess that’s my main observation around that. I think often we go straight to the solution, and try and satisfy the recommendation really quickly, without looking at that – those stages, and the implementation of what other matters that we may have to take into consideration in implementing that one recommendation.


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Thank you. Commissioners, I propose to leave Ms Gwynne’s evidence at that point for these sittings and, again, to have her recalled to deal with some more specific issues at a later date.

COMMISSIONER WHITE: Right. Thank you. Mr George, you are comfortable with that course?

MR GEORGE: Yes. Nothing arising.

COMMISSIONER WHITE: Right. Thank you Ms Gwynne, so you are stood down until you’re recalled to come and give your evidence. Thank you for your evidence to the Commission.

<THE WITNESS WITHDREW [12.45 pm]

MR GEORGE: May I be excused.

COMMISSIONER WHITE: Yes, thank you, Mr George. Mr McAvoy.

MR McAVOY: Thank you, Commissioner. The next witness, Commissioner, is Patricia Audrey Anderson. She was in the court a moment ago and she has - - -

COMMISSIONER WHITE: Just stepped out.

MR McAVOY: - - - just stepped out. So I believe she’s not far away.

COMMISSIONER WHITE: That’s fine.

MR McAVOY: Commissioner, I call Patricia Audrey Anderson AO.

<PATRICIA AUDREY ANDERSON, SWORN [12.46 pm]

<EXAMINATION-IN-CHIEF BY MR McAVOY

MR McAVOY: Ms Anderson, could you tell the Commission your full name and your occupation, please?---Patricia Audrey Anderson and currently I’m the chairperson of the Lowitja Institute.

Now, you will see on the screen in front of you a statement. If you can just scroll down to the bottom of that statement. Ms Anderson, there is an operator. Sorry, I’m talking to the operator, not to you?---Okay.

.ROYAL COMMISSION 20161012 P-141 P.A. ANDERSON XN©Commonwealth of Australia Transcript in Confidence MR McAVOY

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COMMISSIONER WHITE: You don’t have to do a thing?---Thank you. Thanks.

MR McAVOY: Now, you can see the bottom of the – that’s the last page of the statement. That’s your signature that appears there?---Yes.

You recognise that statement?---Yes.

That’s true and correct to your knowledge?---Yes.

And annexed to that statement is the report and I won’t attempt the language name, but it is the Little Children are Sacred?---Yes.

Thank you. Commissioner, I tender the statement and report of Patricia Anderson.

COMMISSIONER WHITE: Yes, thank you. Ms Anderson’s statement is exhibit 17. And the report is exhibit 18.

EXHIBIT #17 STATEMENT OF MS ANDERSON

EXHIBIT #18 REPORT OF MS ANDERSON

MR McAVOY: Ms Anderson, when you were introducing yourself you said that you were the chairperson of the Lowitja Institute. Could you please explain for the Commissioners what the Lowitja Institute is?---The Lowitja Institute is a national health research organisation that looks at specifically and exclusively around Aboriginal health issues and associated matters, underlying causes if you like. It’s the end of a – almost a 20 year period, it started off here in the Northern Territory as the Cooperative Research Centre for Aboriginal and Tropical Health. It’s now an Aboriginal Community Controlled Organisation, it’s the only one of its kind in Australia and it has its office – although it started here in Darwin, it now has its main office in – in Melbourne.

COMMISSIONER WHITE: Thank you.

MR McAVOY: And how long have you been the chairperson of the Lowitja Institute?---Nearly 10 years. Eight, nine years. But I was a founding member. I have been with – whole, 17, 20 years.

You’ve set out, at paragraph 5, a number of your positions held during your career?---Mmm.

You can see that?---Yes.


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The position as the chair of the National Aboriginal Community Controlled Health Organisation, do you recall when that was?---The short answer is no. It has been quite a while ago now.

And you’ve been awarded an honorary doctorate from the Flinders University?---That’s more recent.

Now, do you recall – August 2006 were you appointed as a board member for the Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse?---Yes I do.

And your co-board member was Rex Wild QC?---Yes.

And the report that’s annexed to your statement is the report that was produced from that board of inquiry?---Yes.

Do you have – if you can look at paragraph 9 on the next page. Do you have – can you tell the Commission how the inquiry came about?---Yes. It culminated with Nanette Rogers making that statement or making statement about the – her concerns about the extent of violence in and around the centre at the time, and a particular community – I think Mutitjulu was particularly focused upon, and there was a bit of a – well, there was quite a lot of media attention around that, and that resulted in the Chief Minister at the time, Clare Martin, setting up the inquiry. There was considerable pressure on the Northern Territory at the time to attempt to deal with these allegations.

Thank you. You make the comment at paragraph 10 of your statement that many Aboriginal people and communities have been talking about and advocating on these issues for many years prior to 2006?---Every report before and since the deaths in custody report, which also highlights in one of its recommendations – this is now just over 25 years, that Aboriginal families were indeed in deep crisis.

So when you say these issues, you are not confining that to violence and child abuse, you’re talking about crisis and - - -?---All of the things that are mentioned in the report: alcoholism, gambling, child neglect, children not going to school, Aboriginal people have been talking about this for quite a while. So anything – everything about that in the Little Children are Sacred, it has all been said before.

Yes. And you make the observation at paragraph 25, which is on page 4 of your statement, in the last sentence, that none of these issues are new?---Mmm.

And that Aboriginal people in the Northern Territory have been saying these things over and over again, and nothing ever changes?---Indeed. This is the nature of Aboriginal reporting in the whole of the country: very little actually happens. We spend a lot of time talking about Aboriginal issues and the problems and everything, but very little has been done. It’s just the nature of these things. And I really fear – our hope is, Commissioners, that this isn’t the fate also of this inquiry. In fact, I


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would go so far as to say the very survival of Aboriginal people in the Northern Territory depends on this Commission making a real impact here, that it not just be – we all feel good about talking about it, and we go away feeling all warm and fuzzy, and it’s dropped into a filing cabinet somewhere. That cannot happen here today, this – this – this report. Please, I beg you, do not just put it into the filing cabinet. You are morally bound to do something, not just talk about it. That’s all this country does is, talk about blackfellas. There’s this – some kind of opiate now: if you have a roundtable, or you have a discussion, or you do a report, it’s a momentary feel good moment and then it’s all left: nothing ever happens. So that’s got to stop. We are not going to be here in another 20, 25, 50 years. Sorry.

No need to apologise. You’ve referred in paragraph 11 to the way in which the inquiry was established, and you’ve made the comment that you weren’t consulted about the terms of reference. If we could just show page 41 of the report, please. The annexure. You can see that there are two columns on that page, and the left-hand side is a heading Inquiry Terms of Reference and they are the terms of reference which – under which the Board of Inquiry was established?---Yes.

And in – we don’t need to go back to paragraph 11 of the statement, but you note that the inquiry quickly became aware that the incidents of child sexual abuse is often directly related to other breakdowns in society?---Mmm.

Do you – in hindsight do you think the terms of reference could have better accommodated that broad system of breakdowns?---Rex and I were keen to come up with a report that once again examines and put all the issues, the underlying issues, on the table so we could find preventative measures and actually try to deal with it, as is suggested in number 1 there of the terms of reference. Not to continually repeat or have another narrative around the statistics or what’s wrong, but to actually come up with things that the government of the day could take and implement and deal with. So that was – so that kind of suited us, if you like, and it was very clear once we had been around that all of these things that people have been saying forever, were really at every single meeting we had, and we had 45 community meetings, kept visiting Aboriginal communities – we had actually 260 meetings with people.

I’m about to take you to the methodology that you used for the report?---Yes. But my point is in those community meetings every single one said all of those things that are in the report. Almost every single 45 of those meetings. Plus some of the submissions as well.

Now, the inquiry was appointed on 8 August 2006. You can see that at paragraph 12 if you need to check your statement. And originally it had a time frame reporting at the end of 2006 and you sought an extension?---Yes.

And the Chief Minister extended the inquiry until 30 April 2007?---Mmm.

Was that sufficient time in the end?---I think it was. Because there was a lot of – as I said earlier, a lot of pressure on the NT Government, we were keen to get something


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out there quickly, so they could implement and get on with the – get on with the job. We did have to rush towards the end, because Rex and I were determined that there not be another extension of time, that we do it – actually have the report ready to give to the chief minister on the 30th of April. And we did. And it wasn’t a bound version that you have here, it was actually photocopied and stacked together with a paperclip but nevertheless it was finished. We were determined to give it to her on that date.

And it’s the case, isn’t it, that the Northern Territory government insured you had all the resources you needed to conduct the inquiry?---We had not – we don’t have any complaints about that. The secretariat was made up of public servants, they were – and we acknowledged them in the beginning of the report. We had really good staff, good services, and we didn’t have to quibble or ask for any extra resources. We just did what we had to do. So there was no impediments there to doing the task as we signed off to do.

Thank you. I notice the time Commissioner. I’m about to embark on a new area. I can continue for a couple more minutes if you would like.

COMMISSIONER WHITE: No need to bat it out, you can have an early minute, Mr McAvoy. All right. Thank you. We will adjourn then to 2 o’clock. Will we have sufficient time for Ms Anderson to finish her evidence this afternoon?

MR McAVOY: We will.

COMMISSIONER WHITE: I’m conscious that she has other obligations.

MR McAVOY: The proposal then is to call Ms Muriel Bamblett. I have got some doubt as to whether we would finish Bamblett’s evidence.

COMMISSIONER WHITE: But there’s no particular impediment there, is there? Thank you, Ms Anderson. Adjourn until 2, please.

ADJOURNED [12.59 pm]

RESUMED [2.01 pm]

MR McAVOY: Thank you Commissioners, Ms Anderson, you recall before the lunch break, we were talking about the preparation for the Little Children are Sacred report and the works of the Board of Inquiry. At page 12 of your statement - - -

COMMISSIONER WHITE: Page 12?


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MR McAVOY: Sorry, paragraph 12. My apologies. You can see there that you talk about an extension, but in the last two sentences you say that the inquiry submitted an interim report to the Chief Minister?---Yes.

And can you just tell the Commissioners the purpose of doing that?---We wanted to keep the Chief Minister informed about what our findings were, because we didn’t want any – her to have any surprises at the end, and the whole objective of all of these strategies was to get a positive reaction from the NT government. So we did that interim report to her, and then we – that was the main thrust of that, so there wouldn’t be any surprises, and anything she needed to do to check with, you know, heads of departments or whatever, she would have time to do that.

Do you recall – if I can stop you there. Do you recall whether you received any response to the interim report?---No. I can’t recall, counsellor, whether we got a response. I really – I can’t.

You can’t recall – I withdraw that. I want to ask you now some questions about the Board of Inquiry’s methodology. Paragraph 13, you talk about the power of the board to hold formal inquiries, formal hearings and subpoena witnesses, but you didn’t follow that path. You elected to take a different course?---Yes.

Can you explain that course and why you opted to do it that way?---The subject matter. We were asking people to talk to us about the most intimate aspects of their life, their family life and their community, so it was a difficult subject matter anyhow. So we needed to come up with strategies that would work with Aboriginal families and people, so we took a lot of time working out the right methodology. For instance, it would not have been appropriate – and no disrespect to the Commission – it would not have been appropriate to have a forum like this to talk to Aboriginal and Torres Strait Islander people. So as you will see in the report, a lot of the meetings were held outside or in buildings that were partly falling down, and what have you. And we used interpreters and there’s a whole process there outlined in the report what we did. And the whole objective there was to making it – making a climate within which Aboriginal people could talk with us, and that we weren’t in fact talking to them. So that’s why we took the time to do what we did, and also to – rather than expecting people to write in formal – you know, formal written submissions, they could ring us on the phone. In those days, as people were still using tapes – so we encouraged people to just talk into the tape and send it to us. The other – the Prime Minister – the Chief Minister gave us an office in the – very beautiful office overlooking the harbour but we said, “No, this isn’t going to work.” Aboriginal people aren’t going to come up the lift and talk to us. So we moved to a shop front down here beside Northern Land Council. We put a big sign out there so people could see what – and people would just walk in, if they were in Darwin for medical reasons, or business, or whatever, they could - - -

You said - - -?--- - - - just drop in, and people did do that.


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You said here down here beside the Northern Land Council. That’s in Mitchell Street Darwin?---Yes. Just down the road here, yes. And also we took interviews over the phone. People could ring us and talk from wherever, so rather than doing the more traditional way of receiving submissions we made it easier and more accessible for Aboriginal people to give evidence or talk to us about anything they wanted to talk to, really, concerning that topic. So that’s why we did what we did and used those more – what would be described in this context, a more informal way of people talking to us. And that was really important – really important. In fact, Aboriginal people themselves actually commented on that kind of methodology, which we’ve used some of the quotes that people said in our report.

Thank you. And you also went to some extra efforts with the Northern Territory government in terms of - - -?---Yes, we spoke - - -

- - - working with them?---Yes, we did. We spoke to all of the heads of departments, police, justice, health, education, all the sort of major – major departments. We spoke to their heads of the department. We also – to access that, so we didn’t do the wrong thing, we had a memorandum of understanding which we negotiated with the head of the department: who we could talk to and how we were going to do that. So we had an exchange – well, really an MOU, and that made things a whole lot easier. So we did have access to staff, but with the consent of their boss, in fact. And that worked quite well.

You also had an expert reference group?---Yes, of local people. Barbara Cummings who is the person that coined the Stolen Generations. In fact the first conference that started the whole thing which now led up to indeed the apology and the setting up of the Healing Foundation was actually a meeting, a conference that was held in Darwin out at Kormilda College. And Barbara worked – I was CEO at Danila Dilba, where then she – I gave her a room in our building, and she – that was all organised out of the Danila Dilba here in Darwin. So now that’s – that’s quite – so it was Barbara, Jack Ah Kit, Stephanie Bell from AMSANT at the time, Charlie King, I think. It was only a small group, but we checked things with them in terms of getting their guidance on how was the best way to sort of proceed and what was best practice, and just sort of reconfirm our thinking, if you like, and the strategies that we had come up with, we talked to the reference group. And that worked – that was also really good. You would get that local buy in as well, although, you know, this is my – this is my place too.

You had a number of community meetings?---Yes.

40 – 45 meetings in fact. Now, there’s a – there’s a map which shows where those meetings were held. It’s page 45. Now, 45 meetings over the period of time that you had to conduct them in was – I think it’s fair to say it was an extraordinary effort?---It was – I can’t believe we did so many, in fact. But, yes. But, you know, we were pretty – we were quite organised before we went out there, and there was that whole process that we had before we actually – before Rex and I actually turned up at the community, which is also outlined in the report. Because, once again, we


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were really careful that people understood why we were coming and what we were going to talk about, and to give them the choice whether they actually spoke to us or not.

There was also a DVD that you - - -?---Yes.

- - - circulated?---In plain English. It was just a head shot of Rex and myself talking directly into the camera as we were talking to people on the community saying – so they could see us and hear us, which is really important. We said who we were, where we came from, what our job was, who had given us the job, and we were going to be – what we were going to be talking to them about, and we wanted to come and have a meeting with them. So that was sent out across the territory and once we had selected the communities that we were going to go to, one of our team members, Stewart O’Connell, would go out, sit down again, talk about the DVD, talk to the council members or the decision makers and from that a meeting would be arranged and then Rex and I would come. So we had a fairly – quite a good structure in terms of all of that happening and we just went one – one after the other and back to Darwin writing it all up, and as we went along, and we also used interpreters in some of these meetings where we could. Especially around the centre because we were able to use the interpretation centre from Alice Springs.

Can I ask you about paragraph 21 of your statement. You - - -?---Yes.

You split up into men’s and women’s groups?---Yes.

Can you just explain why you did that?---Well, it’s not appropriate. Sometimes it’s not appropriate for women to say what they need to say in the company of men, and vice versa. It’s just not appropriate for me – well, now that I’m older, probably it’s okay. You’re getting to that stage where everyone is – everything’s merging again. But certainly at the time it was not appropriate to have meetings, we wouldn’t get to hear what women were saying, nor would we get to hear what the men were saying. So – Barbara and I, usually we would manage the women’s meeting Stewart and Rex would talk to the men. And that gave everybody a whole lot more freedom, and we put it all together at a later stage.

And then at the end of the meetings you tried to have further meetings with the service providers?---Yes. Then we went to – depending on the community who was there, but usually there’s teachers, the police, sometimes there was sports and rec persons and there would be people managing some sort of programs. So anybody and everything everybody that was a services provider we spoke to in each community, and that was a separate meeting as well, because they were mainly non-Aboriginal people providing the services, so we met with them as a separate group.

At paragraph 22 of your statement, you talk about there being many people that attended those meetings?---These were – these were really, really hard, difficult conversations. There were some very large meetings, at some of the larger communities. One comes to – community we had a huge meeting at Kalkarindji.


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We had a really big meeting – a lot of men, middle aged and older men in particular turned out to those meetings, that was at Kalkarindji and Numbulwar, for instance. They were huge meetings. And the meeting up at Nguiu was a large men’s meeting, but for some reason a smaller women’s meeting. I’m not too sure what that was about. So it was a mixed – but we were fairly sure that everybody who came those meetings was – knew why they were there. The other – which ranged from those large meetings to middle-sized meetings, to one of the communities, it was only one young woman turned out. But that was a pretty troubled community, and it wasn’t – and that wasn’t the norm, that was very unusual for just one, and she was a young woman who was doing some sort of parenting program, and she would only – that was her first week at work. So it was a whole range, different size meetings, but a good turnout generally, given the topic.

As you say, many of those people shared intimate stories from their own life. You may not be able to answer this but did you have a sense of whether telling of their stories was therapeutic or cathartic for them?---That’s too much to say, that it was therapeutic. But what it did – they spoke to us – and this is the tragedy of the whole thing – they spoke to us, to Rex and I, with the intention that we would do something about it, and that they in turn wanted to be part of the solution. And there was just – one of the biggest betrayals that, for all of our efforts, including betrayal of Aboriginal people who actually spoke to us, and I – by the work that I did in turn, about what happened, the Government’s response was to have the Intervention. This was a huge betrayal. So – and – and trust was lost.

Do you think for some of the people that shared the intimate stories with you that the telling of the story itself was a traumatic experience?---Yes. They told it – they told it because they wanted it fixed. They wanted to be part of making the solution, so this didn’t happen again. They were worried about – people spoke to us about the level of alcoholism, and children, and it just went on and on at every place. So they came out and spoke to us, yet again, about their concerns, thinking – they had trust in Rex and I that we were all going to come up with solutions as a result of that kind of sharing. But in return that’s – nothing – not the Intervention happened.

We have spoken about the effect of the Intervention. Do you have a sense that the way in which the Intervention was conducted and carried out added trauma upon the existing trauma?---It’s a further abuse of Aboriginal people, and it continues today. This disempowerment, and the way that services are provided or not provided to Aboriginal Australia, is just appalling. The last – look, we are on our knees here. The last 10 years have just been appalling. So it’s an extension of that abuse, the further abuse of Aboriginal people as a result. That’s what the Intervention was. There is no doubt in my mind about it.

You conducted two rounds of consultation in some places: in Darwin, Nhulunbuy, Katherine, and Alice Springs?---Mmm.

Can you just tell the Commission why you did that?---We collected information and we wanted to take that back out. We called people in from – who had been at the


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meetings plus others who hadn’t and we went through our findings and we workshopped our findings and discussed with people the sorts of recommendations that we should put in the report. So that was done at two – what we call regional meetings. And that was before we actually got down to the final draft, if you like, of the report. So we took it back to Aboriginal and Torres Strait Islander people, “What do you think now? Everyone told us about, say alcoholism, and this is what we’re thinking. What do you think about that?” And it was usually some people – what people had told us anyhow. So we just put it back, “Are you clear on this, this is what you’re saying?” And we would agree or negotiate. And that’s how the 97 recommendations were in fact formed, as a result of those 45 meetings, the submissions written, the submissions we received, and taking it back to Aboriginal people at those two regional meetings.

Did you find those communities that you attended on the second round were appreciative of the opportunity for extra comment?---Yes – yes, indeed. We workshopped, put everything up on the whiteboard, we sat around, we talked about it, and it was at one of those meetings that they came up with the name of the report and also the painting that we used on the front cover. That was from one of those regional meetings. So it was an involvement of Aboriginal and – well mainly Aboriginal people here in the Northern Territory anyhow. It was their involvement along the way that actually came up with the final – the final report. I’m happy to say. It wasn’t done to them.

The report made 97 recommendations?---Yes.

Could we just turn to page 21 of the annexure, please?---Of the - - -

Annexure. Of the report?---The report. Yes. Thank you. I’m looking at 21.

Page 21. Is the - - -?---

COMMISSIONER WHITE: The recommendations, Ms Anderson?---Yes.

MR McAVOY: If we could – sorry, if we could turn to page 22. Okay. Under the heading Leadership, is the - - -?---Yes.

The first recommendation?---Yes.

Just take a moment to refresh your memory?---Well, this still hasn’t happened. Aboriginal people are not included in negotiating or discussing or being part of designing or anything in terms of matters that directly affect them. This was our number 1 recommendation.

I’ve got some questions for you - - -?---Sorry.

- - - regarding that recommendation?---Sorry, counsel.


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Firstly, the recommendation is for urgent national action. Why did you make your recommendation urgent?---Because it was urgent. Our communities were in a terrible situation, and that’s – there has been further decline in the nature of our communities in the Northern Territory, and I think generally across Australia, but here in the Northern Territory is a particular urgency with the extent of the problems that – God, I don’t like using that word “problems”, but the extent of all the issues that need to be dealt with, like now. This is 10 years old now, and we have – still have women being murdered and the level of alcoholism and - - -

The board of inquiry was appointed by the Northern Territory government, yet recommendation number 1 - - -?---Mmm.

- - - calls on the Australian and the Northern Territory Governments - - -?---Yes.

- - - to establish a collaborative partnership. Why – what prompted you to bring in the Commonwealth or Australian government into that recommendation?---The resources just weren’t here in the Northern Territory, and we – we believed that this – what was happening here was of significance and importance for the whole nation, not just the Northern Territory. This was an issue that Australia should be concerned about, its urgency, and fixing it up. And also, in a more practical level, the NT government just didn’t have the money to do what was proposed there, and our intention was with all the times that are making it easier to recommend or put as much information as we can, once again trying to entice, I suppose, the government of the day to begin to consider implementing as many as they could, and our intention always was that the chief minister would send the report to the Prime Minister and say, “We’ve held this report, these are the finding, we have costed out some of the things, but we can’t do everything and we need X number of dollars.” And with some kind of projected outcomes. That was what we thought would happen, and that’s why we wanted to include, because it was significant what was happening here in the Northern Territory and beyond – way beyond our board borders. Because the Northern Territory – we’re indigenous people of Australia, not just the Northern Territory.

The last sentence of recommendation number 1. It’s expressed as being critical that both governments commit to genuine consultation. How important was it that that statement be included in the very first recommendation?---It was pivotal. It was crucial. It had to happen, otherwise they couldn’t just – which what’s happening now: everything is done to us. Aboriginal people needed to be part of finding the solutions, almost on a community by community basis, but there had to be some overarching policy, plan, allocation of funds, and what have you. But it was – nothing was going to happen unless Aboriginal and Torres Strait Islander people are involved in the design and implementation and actually carrying out the work. God, if we don’t know that by now. I mean, really. But it’s still happening – it’s still happening. This hasn’t happened in Australia for at least 10 years now. Not only just here in the Northern Territory.


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And I take from what you’ve just said that you’re of the view that that genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities, as far as you know, hasn’t occurred in the - - -?---No. Not to any great extent. One of the themes I think of the last 10 years has been, in fact, the opposite: the disempowerment and powerlessness of Aboriginal people and the breakdown of cultural authority in communities and families.

I want to take you to page 50, please, which sets out the principles for engaging with the Aboriginal community. of the report, please. Why did you feel it was necessary to set out rules of engagement?---To have a road map, some easy reference that the government of the day would be able to follow without thinking too much about it. So with a sort of a ready reference, one, two, three, four.

I mean, implicit in what you say is the view that in 2006 when this report was written, the government didn’t know these things already?---Well, they did, but there hadn’t been any action. So we decided that we would provide this road map, I suppose, on what needs to be done and how to do it, so to assist them as much as possible to begin at least considering the implementation of the various recommendations.

So if you look at the box, the beginning at the top of the page, there is a quote from a remote area nurse that was – is that just a single expression of hopelessness or is it – was it a widespread thing that you came across often?---It was pretty widespread, that sense of hopelessness, but not to the same extent it is now, because people actually did turn out to those meetings, and indicating wanting to be part of finding local solutions.

Can I just take you to principle number 1. Under the heading Principle 1, you note that the inquiry found that the provision of services to Aboriginal people, particularly in those remote areas was severely deficient?---Yes.

Do you know if that’s still the case today?---Well, things in the Northern Territory haven’t improved over the last 10 years. I mean, the whole purpose of this inquiry indicates there’s some kind of moral decline here. So, you know, things – things are pretty bad. Even worse than they were 10 years ago.

And so, you – in the next paragraph below that, which I’ve just read, there is a discussion about the need for whole of government commitment, and a movement away from the silo mentality that presently exists. To your knowledge, did that occur?---I don’t think it’s in – a kind of a very conscious mindful way that everybody is – you know, “the silos have been knocked down and we are all kind of collaboratively working together.” I don’t think – I think that would be an overstatement to suggest that.

At the bottom of the commentary on principle number 1, there is also a call for a significant fiscal outlay, much better infrastructure, and improved provision of resources. Is that comment still as relevant today as it was in 2006?---I – I would


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think so. You know, without appearing flippant, the amount of money that was spent on the Intervention, they could have done all of this and made some, you know, longstanding development rather than send in the army.

If we could just move to principle number 2, please. Obviously principle number 2 was designed to draw to the readers’ attention that, without a proper understanding and accounting for the language and cultural differences, there will be significant difficulties in making any advancement. Is that – have I properly characterised it?---Yes. This question of language, which came up time and time at these community meetings is actually – absolutely crucial. And there’s some quotes there from – I mean that one in particular, English is a very tricky language for us. So – and then one of the Alyawerre elders says a little bit later that unless these people’s concerns are expressed in their own language there’s less ownership of them, of owning the actual problem that they are expressing. So language was really, really important, and people had to understand the concepts and then translate them into language to fully, properly understand. This – I think the NT must be one of the last places where we have that kind of added complexity to Aboriginal affairs. There’s this question of language, and what it means, and people spoke to us quite a lot about that. That’s why I was very happy at the end when we asked for the – at least overview of the report to be also presented in nine languages. I don’t know whether they did nine, but they did do some. I was really pleased about that, because people needed to be able to read in their own language – those who could read, but those who couldn’t, the language speakers would be able to – you know, read it to them. So that was really important, that people understood what we said. The one regret I think Rex and I have is that we weren’t able to go back and talk to people once the report had been, you know, launched and adopted. We – I do regret that, that we didn’t go back.

That wasn’t possible?---Yes – yes.

Can we just go to the next page, please. And if we could – sorry, one page further. This principle discusses the need for not only effective engagement and consultation, but ongoing consultation and engagement. Why did the board feel it was necessary to emphasise that particular principle?---Because Aboriginal people have to have a say in their own lives and things that affect them, and often that doesn’t happen, things are – well, lots of times, actually done to us, not necessarily with us. So we were making a plea here that you can’t do anything, however your best of intentions, unless you involve Aboriginal people in those decision makings and finding correct solutions. Even if it had to be community by community. And sometimes, in some communities, even family by family in some cases with big clan groups.

How important, though, is it that the consultation of engagement is ongoing?---It’s really important, because what’s happened now is a breakdown in leadership in Aboriginal communities, so if we had kept up that dialogue other people would emerge. And now what has happened is – I think there’s a disengagement with mainstream society, because it hasn’t done Aboriginal people in some of these communities any good at all. It has been the agent of further decay.


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Is that – in your previous comments about your regret at not being able to go back and have a further round meetings and explain what had happened, that’s an example of not being able to complete the ongoing consultation, is it?---Yes, I would say so, in retrospect. But we just felt duty bound to actually take it back because people had invested quite a lot in actually talking to us. So we felt that we should have taken it back and talked to people. Not that it would have made any difference with what happened, but we felt that we had an obligation to take it back, and I – I deeply regret that.

Thank you. Could we just reduce the size a suitable amount, and could we zoom in on the paragraph immediately above the heading Principle 4. We have been talking in this principle about consultation, but in this last comment in relation to this principle you are talking about the need for informed consent. Are you able to just discuss the concept of informed consent?---Yes. The use of this first of all – the use of the word consultation is like a passive, it’s a passive verb, yes. Whereas informed consent is much more energetic and it requires action by somebody to get – to get that to actually happen. So – and that’s what we wanted, that’s why we used the word there in that context as informed consent rather than not just get – shove something in front of people’s noses and they just sign off on it, that there actually be an active process, and that’s why we used informed consent. So people had to be properly engaged.

Are you aware of that principle of informed consent being used elsewhere?---Yes. We use it a lot with the – in the research community when people are being, you know, surveyed or researched, it is absolutely essential you must have – part of the ethics of any project that people who are being interviewed or whatever are being involved. You have to have a special form that gives them their – gives informed consent and there has to be a process to explain what that means when they give their informed consent. So it’s reasonably common.

That’s in the academic field?---Yes – yes.

Thank you. If we could go to principle 4?---Mmm.

The first paragraph under Principle 4 is fairly self-explanatory, but it’s a detail that I would suggest to you that often gets missed. What can you say about the need to ensure that programs and reform targets and appreciates diversity?---I think there’s a view in Australia that all Aboriginal people – that we are all the same, whereas in fact we’re not. We are very – within that – it’s like a generic, you know, Aboriginal people. But within that there’s this whole diversity of different people’s values and views. There are lots of commonalities, but down at that local level there are differences. Even sometimes within a community against – no, not against, but between different clan groups, even. So there – it’s a – it’s a really complex societal structure which isn’t really properly understood in Australia. I don’t think.

And are you aware of circumstances where pilot programs may have been tried in one place and - - -?---Yes, God. Yes, one-size-fits-all sort of thing, and it doesn’t. It


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might be a good program, but there needs to be that flexibility to adapt it locally. And often there isn’t because it’s controlled by some planet long, long, far away, like Canberra, that has got, you know, the KPIs and all of this that have to – and all the boxes have to be ticked in a proper way. They don’t work. They don’t work either. So, yes.

We could just move to principle number 5, which I think is the next page. That’s correct. Which relates to a community-based and community-owned initiatives?---Mmm.

In the report immediately under the headings you’ve inserted a quote from a Yolngu elder. Can you see that?---Yes – yes.

The point of inserting that comment is – could you explain?---Aboriginal people are perfectly qualified and perfectly able to take control, and manage their own affairs, and that hasn’t always been the case, and it’s worse now than it ever has – the one thing that hasn’t happened in this country: we haven’t had enough control so we can actually fail. It has all been done to us, once again. So we haven’t even been paid the courtesy or the respect to be given control whatever and with that opportunity to make work or to make it fail. We’re still waiting for that to happen.

Could we zoom out, again, please. And if we can zoom in on the last paragraph on that page. What is meant by decolonising attitudes?---The paternalism that continues to be used against Aboriginal people, and wherever – it doesn’t matter what we do, it doesn’t seem to make any difference in this country. We can win gold medals, or we can be high achievers, actors, poets, painters, recognition worldwide, but here – here at home we’re still uneducated, undisciplined, and dirty. That’s how we’re perceived here in our own country. This is our – this is our place.

And that attitude is a barrier for Aboriginal people in the community?---Yes, yes, yes. Somehow or other, we’re – like I say, it doesn’t matter what we do, we are not considered to be part of the general Australian community, we are somehow on the side or, you know, shuffled off the stage somewhere. So we don’t actually fully participate in the life of the nation, across all of its fields, and we have plenty to offer.

The other part of that sentence I want to draw your attention to is the development of new policies that recognise both Aboriginal strengths and deficiencies. It’s fair to say – and you’ve just been saying it – that often the focus is on deficiencies?---Yes.

I take that paragraph to mean you are calling on government to recognise strengths as well?---To recognise strengths. And there’s – there’s anything to do with Aboriginal people there is often a deficit language that’s used, so we have to be all really mindful about that and it’s used all the – it’s used all time. It’s this constant undermining and pushing down, constantly. Like I say – and it doesn’t matter what we do, it makes no difference in this country.


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If we could turn to principle 6, please, which is – thank you. Principle 6 is perhaps more important in the Northern Territory than most other places in Australia. The – it’s a call for recognition in respect of Aboriginal law and empowerment and respect of Aboriginal people. Why did you feel it necessary to include that?---There’s even a recommendation there that Aboriginal law men and women, l-a-w and l-o-r, actually work with all of you and the judiciary and what have you. So we can – there can be some exchange of ideas and pollinating of different things and that acceptance, again, that Aboriginal people in fact have our own culture around questions of law and lore. So we were trying to suggest, or we were suggesting, that Aboriginal people in there are to be engaged, even the more formal aspects of Australian life. You know the judiciary, and the making of laws and everything, so that’s – and that we did have something to offer, and we felt quite strongly about that, but this hadn’t been said anywhere previously that Aboriginal law men and women would actually sit down with yourselves and work through issues, and – so there could be some understanding of the two laws and hopefully some kind of meshing that would be more useful and more relevant to finding solutions.

And principle 7 draws attention to a balanced gender, families, social or skin group representation. That’s – it’s an important factor to consider in many communities in the Northern Territory that – those factors?---Mmm.

Is there anything you wish to say particularly with respect to that principle?---I don’t think so, counsel. You know, down south some people get a little bit irritated by the fact that us from the Northern Territory say, “Well, you know in the Northern Territory it’s different.” Well, in fact, it is. Not better, but it’s different. And there – and it’s much more complex because of, you know, who we all are and all these different distinct language groups. These are not dialects, these are languages, different languages. So there are different peoples. And that’s not to the same extent – sadly not, now, but that still – that’s a complexity of the Northern Territory. So people like myself talking, you know, down south, I’m always a little bit conscious of that. But there is this particular – and I think that’s actually highlighted – Muriel Bamblett just turned – actually pointed me in that direction, just in the break that the report did highlight the complexities that were specifically in the Northern Territory. Not saying it’s good or better, it’s just how it is.

Could we go back to the statement, please. Paragraph 26. At paragraph 26, you’ll see you’ve summarised some of the recommendations that relate to – specifically to the child protection system?---Mmm.

And that at 26A, for instance, you have identified that the recommendation that there be further government investment into significant planned reform with a statutory child protection system, which is about to be undertaken. Which reform was that, do you recall?---There was a few things going through the assembly, but I can’t remember that in particular, I have to say. But we were asking for them to seriously consider what – the Northern Territory situation in particular with the child protection issues, increasing staff and more Aboriginal people working in the system without - - -


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Well - - -?---Yes. Sorry.

That’s at recommendation 19, which is summarised at paragraph 26B of your statement, the need for more workers with imaginative incentives and particularly more Aboriginal staff. And then recommendation 20, for instance, that there be more planned investment in local community workforces. And, clearly, the board of inquiry saw all of those - - -?---Yes.

- - - aspects as important?---Yes. Yes. I don’t think even today there are many Aboriginal people who have responsible positions in the child protection system, and all of the evidence that people have given today, a lot of Aboriginal people here in the Northern Territory. A few of them – if you walk down the street here, how many Aboriginal people do you see at Woolies or the chemist or whatever. Same at Tennant Creek or Alice Springs. They are invisible. Not in Cairns. You know, there is Aboriginal people gainfully employed in – across the whole community. It’s here, it’s like we are shuffling – like zombies shuffling around the side here in terms of the visibility in this town. What’s in the NT News in the morning, a bloody big crocodile. I mean, really, I thought to myself – I saw it when I got my coffee, and I thought, you know, some things just don’t change.

COMMISSIONER GOODA: Ms Anderson, maybe your experience in the health area and the leadership that the Northern Territory showed in the creation of the development of health workers, Aboriginal health workers, it basically started here so it can be done?---Yes, yes. That was an initiative here from the health sector. We have had, for about 30 years now Aboriginal people – community people and urban people as well as a trained paraprofessional workforce working in the health sector. And they can do everything and it’s legislation so they have indemnity and what have you, just like any other paraprofessional. The only thing they can’t do is administer medications and drugs, but they can give vaccinations, they can do all the observations, and we have been doing that now for 30 years. This is the only jurisdiction that does that. They are called Aboriginal health workers in other jurisdictions, but they don’t do the same work, that paraprofessional work that we have been doing in the NT for some time.

And, Ms Anderson, how important has that been to helping embed Aboriginal practices in the health system in the Northern Territory?---Look, the Aboriginal advocacy across the country in the health sector is – we started this in early 1970s, setting up the first Aboriginal medical service in Redfern, and the next one was in fact Alice Springs. And the service here in Darwin, Danila Dilba, I just got an invitation today to their 25th anniversary. So there is a lot of Aboriginal people who have worked across the health sector and all the aspects of it for quite a few generations now. So, yes, we can do jobs, lots of jobs, in fact. But we are just not visible in this town or in the Northern Territory except the stereotyping that happens. But there’s more to Aboriginal people than that.

MR McAVOY: I just want to take you to paragraph 27 where you speak about - - -?---Yes.


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- - - providing draft recommendations to the Northern Territory Government?---Mmm.

For some feedback. Is that correct?---Yes. Yes.

You don’t have any recollection of receiving - - -?---No, look, there wasn’t a lot. What happened was that they didn’t see all the recommendations, but say the Education Department, they saw theirs, the Justice Department saw theirs, and so on and so forth. And, you know, this is what we’re thinking, what do you think. There wasn’t a lot of adverse or any opinion, really. It was a kind of passive response that we got.

Did that concern you?---It did. It did. There’s this – you know, there’s this – there’s this lack – there’s this ennui. There is this lack of anything in the NT, anything to do with Aboriginal people unless it’s got a negative about it. But it was – it was very disappointing. Like, people are tired, weren’t interested or there was this lethargy, this ennui. They didn’t have energy to say, “Well, this is all rubbish. We can’t do this and we can’t do that”. There were a couple that did say, “This is going to be hard to deal with or implement”. I don’t know whether they used the word implement. That’s a big strong. But they didn’t then offer any other suggestion how it might be changed. That’s what we wanted, because we wanted them to be across it and accept it before it went to the boss and to the Chief Minister.

Recommendation number 1 was a significant recommendation calling for fundamental change in the way in which government - - -?---Yes.

- - - is carried out in the Northern Territory?---Yes.

COMMISSIONER WHITE: I’m sorry, I missed the end part of that proposition, Mr McAvoy.

MR McAVOY: I was saying it was a – it was coined for a fundamental shift in the way that the Northern Territory government carried out its functions.


MR McAVOY: I think that’s word verbatim. Did you get any response to recommendation 1, opposing it?---You know, to this day, there is not a single politician or anybody, any decision maker of any kind in the Northern Territory, or anywhere else for that matter, has had a single conversation with me. Not one. It’s like it – we dropped it out there and it went into some abyss somewhere, like it didn’t happen. So no one’s had a conversation with me about any aspect of it. This is the most questions I’ve ever been asked about Little Children are Sacred.

The question I asked was about the draft that you circulated in government?---Yes.

So you didn’t get any response to it?---No. Not too much.


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And you - - -?---Not too much. I can’t remember any, counsellor, that was of any significance except this wall of general malaise and ennui.

Even though you had laid out the road map for them, with the principles of engagement, rules of engagement, there was no response to the draft?---No.

Opposing it?---No. Like I say, no one’s even had a conversation with me, said that was good, that was bad; nothing.

Were you anticipating that you might get some response after you delivered it to the government?---Yes. Indeed. I thought we were all, you know, working together as a team to actually begin to deal with some of the – you know, the issues that were confronting the Northern Territory at the time. See, I drank the Kool-Aid. I thought that, you know, we were all going to do this together. But I was the only one – me and Rex were the only ones that drank it, I think.

Well, you say at paragraph 28 you thought that the Northern Territory government were going to do certain things and progress it. Do you know whether those things happened?---Look, I don’t know. No one has spoken to me and I haven’t seen anything, but, you know, I think at the time they were looking at the legislation for the Children’s Commissioner, so we got the Children’s Commissioner. I think the other thing that they were – we suggested which I think they took up, you know, was a card that says that you’re fit to work with children. I think they introduced that. And, of course, they did do the overview in the various languages as we asked. But apart from that, I’m not aware of any other – any significant response. Well, there has not been a response to the report, not an official – not a formal response. I think there has been maybe some talk within the public service, but I don’t know about that and no one’s – like I say, no one has spoken to me from that day to this.

Obviously, there was a point at which you realised you weren’t going to get a response?---No, well, then – then the Intervention came and then it was a whole – it changed the game. Because what happened when we released the Little Children are Sacred, there was this media frenzy that happened, and that was bad enough, but what happened was that it took the focus off the task at hand to deal with what was happening in the Northern Territory and then the whole focus was switched onto Aboriginal and Torres Strait Islander people, not just in the Northern Territory, but across the country. And that was the big – that was part of this big betrayal. So all of that – any of the good work that was done, all the people that we might have been able to bring along, that was all lost now because now we had the Intervention to deal with. So the report was just dismissed because all the attention was now focused here, and not on the NT Government or the crisis that we believe the Northern Territory was in but rather on, once again, the worst aspects of Aboriginal – and we were to blame for everything. And, in fact, as I said in my statement, I had to watch, read the papers, listen to the news, listen to all the programs about every Aboriginal and Torres Strait Islander man in the country was now suddenly a paedophile. That’s how the – that’s how the publicity – the journalists chose to run


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that. So all the attention was taken off Little Children are Sacred and focused back on the most vulnerable. That was us.

Perhaps in one sense that was the response that you got?---Yes. That was the response that was – the response was the Intervention.

I have nothing – no further questions for this witness, Commissioners.

COMMISSIONER WHITE: Yes, thank you. And have you had an indication from other counsel, did they have anything that they wished - - -

MR McAVOY: I’m happy to invite other counsel to ask such questions as they like about this evidence. My preference is not to have Ms Anderson recalled and have her released today, but I understand that there are some matters that some of the parties may wish to reserve their position on.

COMMISSIONER WHITE: Well, I’m more inclined to think that the Solicitor-General might be in that category, because there has been a fairly wide-ranging piece of evidence, really, about issues of government oversight and government reception of the report and so on. What’s your position, Ms Brownhill?

MS BROWNHILL: Commissioner, we firstly weren’t aware that this witness was going to be called today until lunchtime. The evidence that she has given orally has departed, in some respects, from what appears in her witness statement, in the sense in the witness statement her evidence is to the effect that she wasn’t aware of any response as opposed to the evidence she has given orally which suggests that there was no response. I would certainly take issue with the latter, and I’m not sure that we are in a position to do that today. There are certainly - - -

COMMISSIONER WHITE: It might be possible, perhaps, to engage by video link or indeed to put some propositions in writing to Ms Anderson who might be able to respond. There are a number of ways it could perhaps be managed - - -

MS BROWNHILL: Certainly.

COMMISSIONER WHITE: - - - so that it’s not to the disadvantage of your client.

MS BROWNHILL: Well, it may be that we needn’t trouble the witness at all with what we propose to put, which is what the government’s response was, and there are various public documents around that.

COMMISSIONER WHITE: Quite. Quite.

MS BROWNHILL: In relation to that. Including, I might say, some evidence given by Dr Bath about the assessments he made against the government’s commitments to its responses to that report. So it may be that we can simply gather


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those documentary references and then we wouldn’t need to trouble Ms Anderson any further.

COMMISSIONER WHITE: No. No. Well, if it’s the public record then there is no point, is there.

MS BROWNHILL: Thank you.

COMMISSIONER WHITE: All right. Well, I think, then – any other counsel have questions? Yes. Thank you. If you would do that, Mr McAvoy. I’m not sure whether it’s helpful for the court reporters, because there is so many counsel here, Mr Boulten, if you just indicate who you are and for whom you appear. Thank you.

<CROSS-EXAMINATION BY MR BOULTEN [3.02 pm]

MR BOULTEN: Yes. My name is Phillip Boulten and I’m here representing NAAJA, North Australian Aboriginal Justice Agency. Those rules of engagement that you set out in your report are equally applicable to any form of policy development; is that right?---Yes.

So when the Commission is considering child protection policies in the Northern Territory, these are the sorts of rules of engagement that you would recommend for them?---Yes.

Same with youth justice issues?---Yes.

So we heard yesterday from the National Children’s Commissioner who talked about the laws and the rules that applied in youth detention centres, but also talked about perhaps it’s respect that needs to be considered?---Mmm.

How should respect be engendered? How do we create the process of people respecting Aboriginal people, in policy making, particularly?---That’s a very – you know, respect, you know, some people say respect isn’t given, it’s, in fact, earned. That’s another term to that as well. But there’s a serious problem in Australian society about the invisibility, in fact, of Aboriginal people. We now have a society here in Australia at the moment that can chuck bananas at a football player, can ridicule for three weeks a football player, an Aboriginal football player. So how does one get respect? Well, we seem to be a long way – there is a lot of resolution – there is – we need in this country a truth and justice commission to sort of deal with – and that people need to understand – Australians need to understand the shared history that we have. There’s this psychological barrier to any kind of acceptance that Aboriginal people are, you know, not subhuman; we are, in fact, human beings and this is our place and this is our country. There is not that respect. Australians are orgasmic about the Maori coming and, you know, the footballers and doing the Haka and everyone think that’s wonderful. Adam Goodes does a dance because

.ROYAL COMMISSION 20161012 P-161 P.A. ANDERSON XXN©Commonwealth of Australia Transcript in Confidence MR BOULTEN

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there were about 150 Aboriginal kids and he was kind of showing off a little bit to them, you know, as a role model, and he gets, like – he gets clapped and booed for three weeks. But the Haka is wonderful; we all love it. But not anything to do with us mob.

Do you think talking to Aboriginal people on their land, with them understanding with interpreters, with meaningful engagement on issues to do with working out policies will result in more respect?---Yes. Well, there’s quite a lot that can be done. People have to be – people feeling disempowered, not only here in the Northern Territory but across the country. We’ve got a lot of work to do here. But if you can show that you are respectful to people, that you’re showing proper respect – and you don’t have to know all the kinship, you don’t have to know anything, you just have to be a human being that’s paying respect and courtesy to another human being. There’s no magic about that. That’s just how it is. That’s how we are supposed to treat each other as human beings.

Many of the policies and the laws and regulations to do with child protection involve a lot of official steps?---Mmm.

Checking. Filling in forms. Providing information. Identification documents. How does that work in remote Aboriginal communities? Is it effective policy?---Well, if there – if you can – if you properly engage Aboriginal people and those are your rules and the way you do things, I mean, you know, that’s okay. But the point is, it’s not – it’s not the process, it’s the fact that Aboriginal people are not part of the process. We are excluded, and that’s the point. Not whether the forms are, you know, workable or they are too – you will get to that. But the important thing is to involve – that’s the point, to involve Aboriginal people in those kinds of activities.

When you talked about Aboriginal law – l-o-r-e and l-a-w – being respected, what impact do you think the law that made it impossible for a court to have regard to Aboriginal customary law in sentencing has had?---Yes. This is – this is something that we’ve been talking about for a number of years, how we might, as I call it, mesh the two. I think the opportunities are really good here in the Northern Territory for that kind of ground-breaking work to happen. I think one of the recommendations was that people would sit down, both groups, and work through some of those issues. And I think that’s still valid and can still be done. The bar, the NT Bar, can decide to do that tomorrow.

That’s all I want to ask.

COMMISSIONER WHITE: I was about to say, slightly crushed, you will sit down, Mr Boulten.

MR BOULTEN: I’m not sure about that. Not at all sure about that. But thank you, Commissioner.

.ROYAL COMMISSION 20161012 P-162 P.A. ANDERSON XXN©Commonwealth of Australia Transcript in Confidence MR BOULTEN

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COMMISSIONER WHITE: Thank you. Any – Mr O’Brien or Mr Lawrence. Thank you. Again, would you be kind enough to mention your name and your client just for the purposes of our court reporters. Thank you.

<CROSS-EXAMINATION BY MR LAWRENCE [3.08 pm]

MR LAWRENCE: Yes. My name is Lawrence, L-a-w-r-e-n-c-e, and I am counsel engaged by Mr O’Brien on behalf of [REDACTED INFORMATION]-year-old AD. I just want to pick up from what my learned friend Mr Boulten SC was talking about with you concerning respect. And you very appropriately pointed out how that can have different types of meaning, earning respect. How about if we swap respect with civility?---That’s – that more describes it.

How about courtesy?---Mmm.

How about decency. Is that what we need?---Yes, indeed.

And it was you yourself informed us about the recent events where Australian football supporters have been throwing bananas at the South Australian player, the Adelaide Crow player, Eddie Betts. That’s what you were meaning, isn’t it?---Mmm.

And Australian football supporters in 2015 and 16 have been booing the Australian of the Year, Adam Goodes. And - - -?---For three weeks.

Yes. And, Ms Anderson, you would be aware of Michael Long?---Sorry?

You know Michael Long?---Yes.

The Territorian indigenous Tiwi champion?---Mmm.

Brownlow Medal – no, Norm Smith Medallist on the Essendon premiership winning side in the 90s. The facts of history are that he was never booed or criticised in any way when he, by his actions during a game against Collingwood 20 years ago, brought in the anti-vilification rules. Do you remember that?---Yes.

He attacked a Collingwood player because he had been racially abused by that player, and from it the AFL introduced anti-vilification rules. Do you remember that? And the Australian community didn’t criticise him back then, if anything he was venerated for his actions. Would you agree with that?---Yes.

And so does that suggest to you that in the last 20 years or less this country now has less civility, less respect, less courtesy for Aboriginal people?---I absolutely agree. There has been this moral decline which is now – not a decline, it’s steep. Decline is this, we’re like this.

.ROYAL COMMISSION 20161012 P-163 P.A. ANDERSON XXN©Commonwealth of Australia Transcript in Confidence MR LAWRENCE

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And the evidence that you’ve seen and heard, no doubt, concerning the restraint chair that the child Dylan Voller was placed in, and the treatment that other Aboriginal children received in the behavioural management unit in solitary confinement, is that another symptom to you of contemporary Australia regressing rapidly and morally in its treatment and dealings with Aboriginal people?---You know, 10 years ago when we did the Little Children are Sacred, it was inconceivable that that might happen here – even here in the Northern Territory. I watched it, like most of Australia that night, and I – that was my thought. I thought, you know, 10 years ago this would not have happened. So I think it is part of this general moral decay. Australia’s in a bad – we’re in a really bad way here, and I don’t know how you return it to a mature, sophisticated, civil society.

Would you agree that perhaps acknowledging that is the first step in turning it around?---Yes. That’s why we need this national conversation with a truth and justice commission. We should have done that before we went into the referendum discussions, which as you know I’m the co-chair of the referendum council. And we will have a referendum next year. But it’s okay to say in hindsight. But that’s what – when we are going to have this conversation, hopefully it can be a sophisticated and mature one, I hope, because that’s about to happen shortly, with – the discussions about to begin.

And what about this Royal Commission? Do you still have a belief, if not a hope, that pursuing the terms of reference of this Royal Commission and the evidence that’s anticipated, it could acknowledge what you are telling us today with a view to changing it around and genuinely fixing things up for the better?---Without putting pressure on the Commissioners, I do think there is a real opportunity here for this – this hearing to be a game changer. It could – it could be a game changer. It could make a difference. I still remain, you know, buoyant, confident enough in the system, I suppose. But, yes, look, there is a real – I think there is a real opportunity here for – at least to put it out there, and it could be – it could be a game changer. That’s why – my plea in the first two minutes about not filing the report – because there’s a lot – like I say, I don’t want to put any pressure, but there is a lot riding on this, and not just here in the Northern Territory either, this is going to have profound impact, I think, I hope, across the country because we – we need a – we need something like this to bring it to everybody’s attention.

Ms Anderson, before I ask you some other questions I better ask you this one. What time is your flight?---1 am.

COMMISSIONER WHITE: That’s because this is the Northern Territory.

MR LAWRENCE: That answer seemed to suggest to me that that was my fault and I probably – I’m willing to accept responsibility. So I want to take you back a bit, Ms Anderson, if I may. Your statement tells us, I think it is paragraph 5, about your career, and you haven’t – we haven’t actually got a CV from you, and I think it’s relevant for the Commission to consider really where you come from and what


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you’ve achieved today and with respect I think, paragraph 5, you’re being a bit modest. I just want to ask you a few questions more about your - - -?---Sure.

- - - background, your history, your qualifications and so forth. Your present position, for instance, is that you’re actually the co-chair with Mr Mark Liebler AC of the body known as the Referendum Council. That’s correct, isn’t it?---Yes.

And you’ve been in that position since, I think, March of this year?---Yes.

And you were on the board upon – following it being created, which was last year?---The board of - - -

You were on the council?---Yes. The – when it – from the beginning.

From the beginning. Sorry?---But I was just a – an ordinary member.

That’s right?---And then Patrick Dodson resigned and I was asked to be the other co-chair.

Okay. And - - -?---Because we had – we had two men, so it was better to have another woman.

And that council, of course, has been established in order to advise on the progress and on the next steps for the referendum which is going to occur recognising Aboriginal and Torres Strait Islander peoples in our Constitution?---The first thing, though, is that – number 1 of the terms of reference is that we go out and talk to Aboriginal people and talk to them about what they want to happen with the Constitution. That’s number 1. And that’s what’s about to begin now. And then the Prime Minister will be informed about that, and then there will be the general kind of discussion with the wider Australian population. But number 1 is to talk to Aboriginal people first, to see what – what we want. And I mean, it’s a big process and it’s fraught, complicated.

But number 1, of course, is consistent entirely with the methodology that you and Mr Wild QC employed 10 years ago in order to undertake your difficult task which led to Little Children are Sacred?---Mmm.

Prior to that, you’re from Darwin?---Yes.

You were brought up here?---Yes. Parap Camp.

Parap Camp, which is now the suburb of?--- ..... Stuart Park.

You went to school here, Darwin Primary, Darwin High School?---Yes.

Your mother is a Alyawarr lady?---Yes.


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Forgive the pronunciation?---Yes.

And that’s a language group from Central Australia, north of Alice Springs?---East.

East of Alice Springs?---East. Going towards – we share the Queensland/NT border. We have family in Mt Isa ..... Doomadgee, Palm Island.

And your mother was part of the Stolen Generation?---Yes.

Which, of course, we are all familiar with?---Yes.

She was taken from her family and brought up here to Darwin like so many?---Mmm.

And brought up in Kahlin Compound?---Yes.

And you graduated with a Bachelor of Arts from the University of Western Australia in 1980?---Yes.

Majoring in literature. English literature?---?---The third Aboriginal person ever in that – from that university.

And following that you pursued a career in the education of Aboriginal children here in the Territory, elsewhere in Victoria, and Tasmania, Western Australia. Correct?---Mmm.

You then worked in the Aboriginal health movements where your statement does tell us that you became the executive officer and chair of Aboriginal Medical Service Alliance NT. You became the chair of the national Aboriginal community controlled health organisation. And, of course, as you’ve mentioned earlier, in the 90s you were the chief executive officer of the well known Danila Dilba medical service, which deals with Aboriginal people here in Darwin and the Top End?---Yes.

In 2012 you were awarded the national Human Rights Commission Individual Award down in Sydney by the Australian Human Rights Commission?---Yes.

In 2013, as already mentioned, were you awarded from Flinders University an honorary doctorate degree, honoris causa. In June 2014, you were appointed officer of the order of Australia, correct? And if I can quote the honour, it was:

Distinguished service to indigenous community as a social justice advocate, particularly through promoting improved health, educational, and –

and I stress this –

protection outcomes for children.


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Is that correct?---Mmm.

Right. You’ve addressed the United Nations in Geneva on Aboriginal – Australian Aboriginal health issues, and you’ve also had a direct link over your career and life with the legal system?---In and out. But, yes.

Well, I think I’m right saying in the 70s you were a legal secretary during the - - -?---That’s right. I did the Woodward Royal Commission. I was a stenographer and took the notes by shorthand.

And that being the Woodward Royal Commission?---Royal Commission, yes.

Which led to, of course, the Aboriginal Land Rights Act?---Yes.

Your other legal connection was in the 90s, when you became president of the NALAS, which was the predecessor of NAAJA. You became the president of the council of the board which ran NALAS?---Mmm.

And again I say that was in the 90s, and you were their president, and during that period you would have had direct dealings and relations with the lawyers that represented Aboriginal people and the legal system within which they represented Aboriginal people?---Mmm.

And that included juvenile Aboriginal people?---Yes.

And that included having direct dealings with the then-Don Dale Youth Detention Centre?---Yes.

Which was a custom built, purpose built, facility for detaining kids?---Mmm.

And you would have been aware back then of the – at least the general conditions that existed in Don Dale back then?---Mmm.

And you would remember that that involved education?---Yes, they went to school. Basketball.

Recreation. It involved several, at least, Aboriginal youth justice workers who worked with the kids?---Yes.

I think you mentioned Charlie King earlier?---Yes.

Are you aware that he used to work in that - - -?---I have forgotten about that, but yes, he did, I think.

Matthew Amat?---Yes, Matty did, yes.


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He was a youth justice worker, a champion footballer who worked in there with the kids. And would it be fair to say – and if it’s not, please say, but was it fair to say that you didn’t have – hold out any great concerns for the way Don Dale was then run when it had Aboriginal kids therein?---You know, it was a juvenile detention centre, but what we saw on national television – it was like I say, when I over – it was inconceivable that that would happen at Don Dale at that time. I don’t think any of us would have thought, 10 years ago, that we would witness what we did on national television.

Part of your job involved speaking and working with your lawyers. You used to meet with them?---Yes.

You used to discuss issues, specific and general?---Now don’t overstate this John, because I was also CEO of Danila Dilba at the time, which was a really busy job and as is still today I think. The president is a sort of – you know, something you did in your spare time. So I wasn’t doing the day to day management, but I did have a lot of contact with you in particular, because you were the senior lawyer then.

You were conscious of the recommendations from the deaths in custody back then, would that be correct?---Yes, absolutely. We all were. We used them like a Bible.

And did you address your lawyers concerns in those recommendations?---Yes, I did. I do remember that.

And was - - -?---In the library.

And was it with a view to informing them and asking of them to ensure that part of their job was making sure the authorities complied with those recommendations that flowed from that Royal Commission?---Yes, indeed.

You had hope then that those recommendations would be complied with?---Yes.

Clearly, you witnessed the Don Dale – or the Four Corners program which was screened I think in July of this year?---Mmm.

Can I ask you where were you when you watched that?---Sitting on my lounge in Melbourne, my house with my – no, he didn’t watch it, thank goodness, yes, just me.

And obviously you saw the whole program and what it revealed which was the conditions, the treatment, and the incidents. And can I ask you how you reacted to watching that that night?---Not only was it shocking, I just couldn’t imagine that we would do that to children in this country. That we would torture, put them in hoods, I – if I was overseas somewhere, and a friend phoned me and said this has happened, I wouldn’t – I would not have believed them. It was just, like I say, unimaginable that that would happen in this country. Anywhere, let alone the Northern Territory. However, we lock up other people, though, don’t we, still? You know, from those terrible boat people.


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The – I will ask you some questions now, if I may, about your report, although Mr McAvoy has been very comprehensive in covering that. But if I could just ask you some further questions. The first question I will ask you is what is the language that’s on the report?---It’s one of the Western Desert languages. That was actually at the one of those regional forums in Alice Springs.

Right?---So it’s a – I don’t know whether it is Walpiri or Aranda.

And it’s - - -?---Aranda.

And it’s translated as Little Children are Sacred?---Yes.

You were appointed on 8 August 2006?---Mmm.

You mentioned you did an interim report?---Mmm.

The contents of which revealed, to a large extent, the serious aspects that you had discovered?---Yes.

And - - -?---None of this would have been new. It was all – been, you know, like I say, fairly topical conversation with everybody at the time.

And the reason you did the interim report: was it so that the authorities, the government, weren’t going to be surprised by the ultimate report?---Yes.

Which came out on April 2007?---Yes. I can’t – Johnny, let me just go back a bit. I can’t remember a response to that interim report.

Interim report?---I really can’t.

I gathered that. No, that’s all right. And then the report was released publicly in June 2007. Do you remember that?---Yes.

And were you present when it was - - -?---I – Rex and I launched it.

Right?---We launched it at Parliament House just over the road here, in a room downstairs, and there was Rex and I, and a whole – and a room full of journalists.

All right. And were there any people from the Northern Territory government present?---No, not at that launch. Rex and I did it.

And your report – your evidence is pretty clear: you didn’t have any contact subsequent from any person from the Northern Territory government?---Me personally, no one has spoken – nobody has spoken to me. I don’t know whether the government, the NT government at the time did do a press release, I really can’t remember what happened, but I know that from that day to this, I haven’t had a conversation with anybody.


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Yes. And I take it there was no one from the Commonwealth government contacted you?---No – no – no.

So I gather from your evidence, really, that the only response from any government from the publication of your report in June was the federal government, namely the then-Prime Minister Mr Howard and his then Minister for Aboriginal Affairs Mr Brough, who announced the Intervention?---Yes – yes. I don’t know whether they spoke to anybody else, but they didn’t speak to me and as far as I’m concerned the response to the Little Children are Sacred was the Intervention.

Yes. The methodology which you’ve explained fully, and I won’t detain you too much on that, but I just want to ask you again that this is a joint report. It’s not Ms Anderson’s report, is it?---No – no. It was a whole team thing. Stewart and Rex and myself, and Barbara. she was a – a team. Barbara Kelly. She was a very good researcher. So, no, it was a whole team thing.

And the official authors of that report are yourself in partnership with Mr Rex Wild QC?---But it was divvied up. Stewy wrote some, Barb, you know, so it was a team effort of four.

And everybody agreed with everything that was ultimately - - -?---Absolutely. Yes – yes.

..... and all the recommendations. So you went through all of these recommendations, and your elaboration as to methodology and so forth with Mr Wild QC during the course of your work, and its ultimate completion, which was the report itself?---Yes.

And Mr Wild of course, just for everybody’s benefit, was the former Director of Public Prosecutions up here?---Yes.

Prior to which he was the deputy director, and prior to that he was a QC at the Melbourne Bar, and he had spent a lot of his career up here prosecuting and dealing with criminal issues in the Northern Territory, much sadly involving Aboriginal people?---Yes. He would be the first to admit to that as well.

Yes. And I gather your understanding or your evidence is that to your knowledge the recommendations weren’t implemented directly by the government?---Well, I don’t know. No one’s told me that they have and I haven’t read anything or seen any – I heard Mr Bath this morning talking about - - -

Yes?--- - - - how he had monitored or looked at some of the recommendations but I didn’t hear him say that they were actually implemented. But I can’t speak for him, of course. I don’t know what they have implemented. There is no sign of it. I mean, things are as – you know, worse now in the Northern Territory than they were 10 years ago. So I would be really pleased to know what has been implemented and what’s working, if they are. I don’t know. I personally don’t know.


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That sort of thing. Your task was to look into the issue of perceived sexual abuse of Aboriginal children in communities at the hands of Aboriginal men?---Mmm.

And that flowed from, as you mentioned earlier, an interview on ABCs Lateline with a former crown prosecutor from Alice Springs, Dr Nan Rogers?---Mmm.

And that’s what you did. And it’s clear from your report that you saw the issue that you investigated directly, which was the abuse of children, as a symptom of a broader breakdown which was in existence in Aboriginal life and communities?---Yes. Counsellor, the terms of reference were asked us, number 1, was to look at how the government of the day might better deal with these issues. It was – because of the rates of STIs and what have you, it was believed that we could take it as a given that some of this was happening. So the government of the day, rightly, wanted to have this inquiry to look at ways about how they could prevent this or move forward in this way. So it wasn’t – we weren’t asked to go out there and sort of, you know, find paedophiles, it was rather to go out there and find solutions.

Sure. And as you said, pivotal, and I don’t want to repeat your evidence, really, but pivotal was consultation with those communities in language, properly, respectfully, effectively. The only way you could ever undertake such a task?---That window of opportunity is probably tightly shut, now.

And I gather from your evidence that’s because of the narrative since then, and in particular the Intervention, which has probably scared Aboriginal people away from coming to the table, to use a horrible term, again. Is that how you feel?---Well, I don’t know how you’re going to go out and have this conversation again. I mean, there’s this whole – it’s a whole different world now than it was 10 years ago. And a lot of those people – they were older people, they’re probably dead now anyhow. So it would be a different – not a different process, but it would be – I don’t know what you would find now. I would still recommend the process, the methodology that we used.

That’s quite clear?---Yes.

Which is consulting effectively, through whatever are the best means available. Just – you mentioned – and I want to ask you further about that – when you were doing all this work, which involved not just consulting with indigenous people in communities, but necessarily dealing with bureaucrats, government employees, officials, how did you find their attitudes towards the issues that you were exploring and suggesting?---The police – the police were very helpful, I have to say, and already had some things happening in communities in terms of policing. They were very open. In fact, as an example of that, the memorandum of understanding we had with them to sort of talk to them was pretty much run along the lines of, “We got information, you want it, you got it.” Whereas some of the other agencies were rather complicated documents. So there were – the Teachers Union were very good. Look, they all spoke to us. There was no problem with departments, heads of department not talking to us. They all did, and they all cooperated. We even sent


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around a questionnaire to the government agencies about what processes and procedures they might have about child safety, and what have you. And we sent that out. It was all completed by them, it came back. There were some areas there they could have done better in and some of them, though, recognised that, began to do some re-training. So that was a useful little exercise, but it was a good indication.

Yes?---Because it wasn’t part of the terms of reference, it was just another strategy - - -

A method?---So we didn’t have any opposition of any of the departments talking to us. There was no one sort of ducking and weaving. They were happy to engage.

Right. The chapter numbered 20 in your report, I don’t know, do you need your report there if it would help you?---Yes.

I can give you - - -

COMMISSIONER WHITE: It can go up on to the screen if you were – you can just direct the page, unless it’s just the chapter in general, Mr Lawrence.

MR LAWRENCE: At page 175. Now, this in a way follows on from Mr Boulten’s questions concerning law, generally at least. And what you evolved or created, in a sense, was a thing called the CJG, Community Justice Group?---Yes.

I wonder, would you be good enough to explain that, please?---I don’t think they exist anymore.

Right?---They were operating, and they were useful, and really important. But I don’t think they – they – they exist anymore.

Right?---That was a good initiative, but they are not there anymore, as far as I know. You would know more about that than me, really.

Yes. Well, what was it when it did exist back then, if you could elaborate slightly, at least?---That was made up of local people and what have you, and they talked to the lawyers, they talked to the community, they were a conduit between the two. They were trusted and they worked quite – worked quite well and doing an important – important job and people did rely on them and trust them. But they are gone now.

Right. During your dealings with all these communities – I think you said 45 or thereabouts?---Mmm.

Did you find that Aboriginal people, once you developed relations, trusting relations, were willing and able, if not even desirous, of working with Australian law and their systems to address this situation that you were trying to investigate?---We were a fly-in fly-out group. We didn’t have a long relationship with them. But because of the methodology, it worked really well. We were able to have these meetings in a day


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and then leave. But there was a general mood and feeling, especially across the Top End here, I have to say, about Aboriginal people wanting to work with the lawyers and law makers. There was a general desire, especially about the older – the older men in particular were very keen on that idea and in the Centre as well. But it was a very topical discussion up here in the eastern Arnhem Land area.

Did you find that there was a concern from these Aboriginal elders as to the fate of the children at that stage, and this is 10 years ago, of course?---That’s what the report’s all about, their concerns, what they worry for. That’s what it’s about. That’s what’s in the report.

And that was another manifestation of the general malaise and breakdown that you observed that was going on back then?---These were the things that people, as we say, were worrying for at the time and probably still do today and think – I think anecdotally it is probably worse now because of this 10 years of powerlessness and hopelessness.

The kid I represent, I would like to tell you just a couple of things about him, just to see how he compares and how you would view his background, his upbringing. He’s 16 now. His father was Garawa, from Borroloola, and his mother was from Tennant Creek, and his parents met when they were about 17 and 16, had their child, my client. The father had very little to do with the kid; the mother brought him up until he was about five. She was very young and then she was unable to continue to bring him up for personal reasons and gave the kid up to grandmum who lived up here in Driver, Palmerston. And that’s where he was brought up with his grandmum, and I think there was a – there was an uncle and a grandfather also living there. And he went to school here up until he was about 13. Brought up by grandmother, virtually no contact with his direct parents. And then his grandfather and uncle passed away and then he started getting into bad company. He fell out with his grandmother and he left the house and he went on the street with some mates who were older. I think there was a couple of cousins. Booze, marijuana, police, and that’s when he got into trouble. And he ended up, as we all know now, of course, in 2014 in Don Dale. Is that the kind of narrative that you’re aware of in the Aboriginal communities with Aboriginal kids in the NT?---Look, there’s a lot of grandmothers - - -

Yes?--- - - - looking after – myself included – looking after their grandchildren. It’s – it’s not only Aboriginal families, either; it’s a trend across the country. There are lots of – in fact, I just met a doctor I know at the airport in Cairns. He is doing the same thing. Him and his wife are bringing up his grandson as well. So it’s common. It’s not only exclusively with Aboriginal families. It’s a hard one. I don’t know what we all did wrong, but we got a – the universe or someone says, “Here you go; do it again”.

You would be aware – I will finish my question, but you are also aware that part of the recent history with Corrections and kids has involved actually shutting down Don Dale, the one we mentioned earlier, and indeed the one where the gas attack incident was, and reopening Berrimah. You’re aware of that?---Berrimah jail?


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Yes?---And put kids in there.

Yes?---Oh, dear.

Well, you know Berrimah jail?---Yes.

And you know it was shut down by the Northern Territory government?---I know it’s been shut down, yeah, for a while.

It was described by the CEO as being only fit for a bulldozer when it was shut down.

MS BROWNHILL: Commissioner, I’m not sure where this is going, but I’m not sure how it could be of any utility to the issues that have to be determined by the Royal Commission. My learned friend is giving a lot of evidence.

COMMISSIONER WHITE: I was going to wait before I observed that, Ms Brownhill.

MS BROWNHILL: Eliciting little which can assist the Commission in any material respect. Given that there are other witnesses to be gotten through, I’m concerned that we are not making the most effective use of the time that’s available to the Commission.

MR LAWRENCE: Could I ask the witness this question: bearing in mind what we all know now about your history and your professional history and your work life, including awards for the protection outcomes for children, what is your view of a government putting juveniles into a recanted, reopened, former adult male jail.

MS BROWNHILL: Well, again, that question has very little utility given that the witness has no current experience of what’s present at that facility or any of the programs or surrounding circumstances that relate to that facility. So the answer cannot possibly assist the Commission in any meaningful way.

MR LAWRENCE: Well - - -

COMMISSIONER WHITE: You’ve been given a lot of latitude, Mr Lawrence, with respect to the line of questioning you’ve taken with Ms Anderson, because it has been putting long statements to her and getting her just to say yes to them. It might fairly respond to the Solicitor-General’s objection to this last question. What is the – what is the value of being – you being able to make a large statement about this facility to this witness?

MR LAWRENCE: Well, I will withdraw the statement about the facility, but it’s just the actual concept per se of juveniles being placed in an adult jail, which is a part of this narrative, and I’m basing it on her qualifications.


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COMMISSIONER WHITE: I’m not sure that the – we have had – we’ve had the experts and we are yet to have more experts - - -

MR LAWRENCE: Yes.

COMMISSIONER WHITE: - - - in this – squarely in this field. I’m not sure that it would be of a great deal of assistance.

MR LAWRENCE: If it pleases the court.


MR LAWRENCE: That completes my questioning of you, Ms Anderson.

COMMISSIONER WHITE: Thank you, Mr Lawrence. I think, Mr O’Brien, you might be the next counsel who’s interested in asking Ms Anderson some questions.

MR O’BRIEN: Yes.

COMMISSIONER WHITE: Thank you. You are able to give any indication, only because we have another witness - - -

MR O’BRIEN: I intend finishing by 4 o’clock.

COMMISSIONER WHITE: Thank you. There is no particular pressure, but it’s helpful to know. Thank you.

MR O’BRIEN: .....

COMMISSIONER WHITE: No.

<CROSS-EXAMINATION BY MR O’BRIEN [3.46 pm]

MR O’BRIEN: Ms Anderson, my name is O’Brien. I represent Dylan Voller in these proceedings. I want to touch, first of all, on that – on the – your report and particularly following from Mr Lawrence’s questions in relation to the community justice groups. That’s contained in your report in chapter 20 and, in particular, on page 179. We can read that report and when – when we’ve done it, it’s easy to conclude that this, according to your report, was a system that was working, a system that was achieving some decent results. Is that true?---Yes, it was. It was working.

So from 1995 to 2005, without referring to the report because it will take time, and we don’t have it, the fact is that the law and justice committees and the law and justice groups was an approach taken within the community, supported by government, and was achieving good justice outcomes and keeping kids out of jail –

.ROYAL COMMISSION 20161012 P-175 P.A. ANDERSON XXN©Commonwealth of Australia Transcript in Confidence MR O’BRIEN

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out of detention; is that true?---To the best of my knowledge, yes. People were general – generally supported the work of that group – those groups.

And on page 181 – it may be the monitor can put that on the screen for the benefit of those watching – the ALJS, this program that was achieving results, was discontinued. And you’ve put in there a statement from a Walpiri elder about the impact that it had. If we had more time - - -?---Yes.

- - - I would ask – I would read that to you and have it adopted and you can read it yourself, but it appeared that the Walpri elder who gave that comment had no idea why it had – that program was disbanded?---Yes.

Did you ever understand why the program was disbanded?---No, I don’t know why it was disbanded. Yes, I don’t know. Just they weren’t – they were there and then they weren’t.

You have in your report, in this Little Children are Sacred report, a fair number of recommendations on page 185 related to the re-establishment of the Law and Justice Committees. Do you commend that to these Commissioners in relation to this Royal Commission?---Yes. Based on, what, 10 years ago and the work of these committees. Yes. But whether it worked now, I don’t know, but certainly it worked at the time and we were – they just disappeared and people were really upset about that.

So it was disbanded before you wrote the report?---Mmm.

You recommended that they be reintroduced?---Reintroduced. Yes.

We have heard hide nor hair of them since?---Yes.

Is that the case, so far as were you aware?---Yes. Yes. Yes.

And so that recommendation was one of many that fell through the wayside?---If it hasn’t been – if it hasn’t happened, yes, we could say that. Yes.

Okay. Now, the next portion of that chapter is on Aboriginal courts, and that – that starts off on page 186, and it says in the very first paragraph:

Most jurisdictions in Australia now have exclusive Aboriginal courts. The Northern Territory is an obvious exception.

And then you, through the subsequent pages through to 188, you suggest the – and argue, if I can say, with respect, eloquently, the benefits of Aboriginal courts, and then you recommend, in recommendation number 74, that they ought be introduced in the Northern Territory?---Yes. They are a mixed bag, I think, across the country. I don’t know whether they are still are happening to this day, but once again, I think the Northern Territory, with the complexities that we have, I think it’s a good place


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to begin to try to mesh the two – the two codes, if you like, the two cultures. There are mixed bag, though; some places they work and some places they don’t. But there is an opportunity here, I still think.

They never had the opportunity to fail here, have they?---No, they haven’t. That’s true.

They ought be considered, at least, do you believe?---I would say so, yes.

Because I’m from New South Wales and I know they have circle sentencing there?---Yes.

It can be very effective?---Yes. They have in other jurisdictions as well, and like I say, they are a bit of a mixed bag but nevertheless they operate and they work reasonably well.

And anything that can potentially remove children from a cycle of crime by diversionary processes and keep kids out of detention are obviously to be considered; is that right?---Prevention is always best.

And Aboriginal courts may provide some assistance in doing so; is that the case?---They could provide - - -

So I ask again, do you commend the introduction in the Northern Territory of the Aboriginal courts?---I think the Northern Territory should look at it. I think it’s worth considering. It is 10 years now, and look at all the other jurisdictions and see if it still applicable here. But it is something that I would urge the NT community to look at, to at least consider.

Thank you. My last area of examination is on chapter 6, and it’s where the learned Senior Counsel began. It’s page 82. It’s headed Leadership. When you’ve got that on the screen – do you see that there?---Yes.

It was probably not accidental that the first series of recommendations in your report related to leadership and the need for leadership in relation to child protection. Is that the case?---Yes.

And what – what we are talking about is leadership, not only political leadership, but are you also talking about there Aboriginal leadership within communities?---Yes.

Okay. Well, I want to talk just about political leadership for a moment?---Yes.

Because what you say there at the bottom of page – on the first column of 82, it’s been suggested that the cyclical nature of political process throughout the country is much to blame for the government’s action and inaction?---Yes.


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It tends to respond predominantly to the needs of the day. Governments of all persuasions are more obsessed with being re-elected than concentrating on dealing with those issues which justify their existence in the first place. Do you see that?---Yes.

That’s true today as it was then, isn’t it?---Yes. See, what happens in Aboriginal affairs, it doesn’t matter how good the program is, and I have been working in this space now for over 30 years. When there is a change of government or there is even a change of minister or even a head of a department, everything concerning Aboriginal affairs goes way back to ground zero again and we have to start again, and we talk about the cycle – the election cycle being a hindrance rather than – so we just – and we have to explain and justify our existence every time there’s a new minister. So there has to be some leadership that isn’t dependent on whether you get re-elected or not, that there is another – a more moral, more ethical consideration here that people need to think about, and all Aboriginal affairs is on these short three-year cycles. Funding cycles, the election cycles. So we might make a little bit of progress and then it’s all up for grabs again and we have to start again. So we keep going over and over and over the same ground. That’s why we need to have a referendum in this country that says we are the first peoples.

How long, in your view, has there been this failure in leadership, because of this political cycle in the Northern Territory?---This has been forever. That’s the nature of, you know, the Westminster system, that we have elections. And that – I’m not saying anything about that, that’s how the system is, but it’s the fact that Aboriginal affairs, every time there is a change, we have to go back to ground zero again, and I’ve been doing this for – I started work at 15.

In recommendation 3, you draw the government’s attention to this problem with the political cycle and you recommended that the Northern Territory and Australian governments develop long term funding programs - - -?---Yes.

- - - that do not depend on election cycles?---This is not rocket science. This is not rocket science. We can’t keep going back to ground zero again and starting again as if nothing has ever happened, so when there’s a new government, a new Prime Minister, it’s a clean slate. It doesn’t matter whether it’s good, bad or indifferent, we have to – and we all have to all troop to Canberra and justify our existence again why we need these programs. This is the biggest impediment to any real advances being made in Aboriginal affairs.

Well, given that this Royal Commission is dealing with the most vulnerable and, as you’ve said, the most sacred part of our community, and that is children, do you have any faith now that governments are capable of not yielding to the political cycle and doing the right thing in relation to safeguarding children and preventing abuse?---That would be our hope, wouldn’t it?


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COMMISSIONER WHITE: Mr O’Brien, I don’t think that was really terribly helpful. We might all express, privately, views, not all dissimilar from that which you have just expressed.

MR O’BRIEN: Well, let me put it – I - - -

COMMISSIONER WHITE: Perhaps you could put it in a focus that is more apt for Ms Anderson to answer.

MR O’BRIEN: Very well. Thank you, Commissioner. I will. Is there – is there a – can you think of any – you’ve had now over a decade to consider what happened to your report, and obviously there has been a number of political cycles within that time. Is there any way that you can assist this Royal Commission to achieving the sort of ends that needed to be achieved then that weren’t in the system?---I’m relying on this Royal Commission to be a circuit breaker, not me, but the work of this Commission and the findings and what people tell it. So it’s not my task or my responsibility. That’s why we are all talking, once again, to another commission to make the changes that you are suggesting.

Thank you for your evidence, and those are my questions. Thank you, Commissioners.

COMMISSIONER WHITE: Thanks, Mr O’Brien. Anyone else?

MR McAVOY: I have no re-examination.

COMMISSIONER WHITE: Mr McAvoy, happy then for Ms Anderson to be released from her - - -

MR McAVOY: Yes, please.

COMMISSIONER WHITE: Yes. Thank you very much indeed for your assistance to the Commission, Ms Anderson. So you’re now freed from your requirement to attend?---It’s been a bit of a – thank you.

<THE WITNESS WITHDREW [3.57 pm]

MR McAVOY: Commissioner, I have the next witness, Muriel Bamblett, in court, ready to commence. I note the time. I am – I haven’t made inquiries with the witness, but I’m prepared to sit on if the Commission is minded to, and given the length of the cross-examination, which I hadn’t anticipated in the order of events, we may need to start early tomorrow, and I’m just flagging that at this point.

COMMISSIONER WHITE: That’s all right. We can do that. Is sitting on for half an hour going to be of insuperable difficulty for anyone at the bar table?

.ROYAL COMMISSION 20161012 P-179 ©Commonwealth of Australia Transcript in Confidence

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MS BROWNHILL: Not at all.

COMMISSIONER WHITE: I think we are mostly used to sitting in court until 4.30, anyway, so that’s fine as far as we are concerned.

MR McAVOY: I call Muriel Bamblett, Commissioner.

COMMISSIONER WHITE: Thank you. Yes. Thank you.

<MURIEL BAMBLETT, SWORN [4.00 pm]

<EXAMINATION-IN-CHIEF BY MR MCAVOY

COMMISSIONER WHITE: Thank you. Please sit down.

MR McAVOY: Ms Bamblett, could you tell the Commission your full name and your occupation, please?---Yes. My name is Muriel Pauline Bamblett, and I am CEO of the Victorian Aboriginal Child Care Agency in Victoria.

Thank you. Computer operator, if you could deal with Ms Bamblett’s address, please?---Please.

COMMISSIONER WHITE: Just remove – Yes. You’ve asked to have that redacted, have you?

MR McAVOY: Pardon?

COMMISSIONER WHITE: You’ve asked to have that redacted from - - -

MR McAVOY: I have.

COMMISSIONER WHITE: Yes. Thank you. Sometimes these things slip through?---It’s a work address.

MR McAVOY: You can see the statement on the screen in front of you. Do you recognise that statement?---Yes, I do.

You can scroll down to the bottom of the page, please, operator. Your signature appears on the bottom of the page?---That’s right.

And can we go to the last page, please. And that’s your signature that appears on the last page?---Yes.

And that statement, to the best of your knowledge, is true and correct?---Yes.

.ROYAL COMMISSION 20161012 P-180 M. BAMBLETT XN©Commonwealth of Australia Transcript in Confidence MR MCAVOY

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You will have to speak up?---Yes, I’m sorry, I can’t – I’m trying to hear you, too.

Now, annexed to that statement is the Growing them strong, together report?---Yes.

And a report from the UK Children’s Commissioner, entitled Nobody made the connection: The prevalence of neurodisability in young people who offend?---Yes.

Annexure 2?---Mmm.

And annexure 3 is Solution-focused justice for young people by Judge A.J. Fitzgerald?---Yes.

Commissioners I don’t propose to tender annexure 1, which is - - -

COMMISSIONER WHITE: That’s already in.

MR McAVOY: That’s already in.

COMMISSIONER WHITE: Yes, that’s exhibit 14.

MR McAVOY: The Commission has enough documents.

COMMISSIONER WHITE: We don’t need it twice, that’s for sure. But the statement was going to be tendered?

MR McAVOY: I do tender the statement and annexures 2 and 3.


MR McAVOY: And just confirming with the operator that that he has got exhibit 14, the Growing them strong, together report available.

COMMISSIONER WHITE: Thank you. Well, Ms Bamblett’s statement is exhibit 19.

EXHIBIT #19 STATEMENT OF MURIEL BAMBLETT

COMMISSIONER WHITE: And annexure 2 is exhibit 20.

EXHIBIT #20 ANNEXURE 2 TO MS BAMBLETT’S STATEMENT

COMMISSIONER WHITE: And annexure 3 is exhibit 21.


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MR McAVOY: Ms Bamblett, you are the chief executive officer of the Victorian Aboriginal Child Care Agency?---Mmm.

That organisation is known in Victoria and within Aboriginal children’s care and protection networks as VACCA; is that correct?---Yes, that’s right.

And how long ago was it that you were first employed as the CEO of VACCA?---Since September 1999, so 17 years.

17 years?---Yes. As the CEO. Yes.

I suppose, then, you will be able to give us a brief description of what – of what VACCA does?---Yes. The Victorian Aboriginal Child Care Agency runs – is an organisation that employs over 300 staff in Victoria. So we are Aboriginal community controlled and operated. We have an all-Aboriginal board. I’m the CEO. We do work with child protection, so we run what we call the Lakidjeka ACSASS Program, which is the program that responds to all notifications for Aboriginal children. So - - -

COMMISSIONER WHITE: I think I might ask you – if you could just slow down a small bit because everything you say has been taken down by our absolutely brilliant court reporter, but it’s still a bit fast?---Okay. So a service that we run is the ACSASS service which is the Aboriginal Child Advice and Support Service for Aboriginal children, and we respond to notifications for child protection for Aboriginal children. So every Aboriginal child, we get the notification and we inform the risk assessment and the process around going to the notification with the child protection worker. We also run out of home care services, residential, therapeutic resicare. We run foster care, adolescent community placement, kinship care programs, leaving care programs, education support programs, family finding programs, early intervention. We run playgroups, integrated family services, family mental health services, family preservation and restorations, Aboriginal child first, which is notifications when children are – before they enter child protection. So teachers and schools can ring us and we will provide a service to families to prevent them going into child protection. We also run cultural support planning, which is planning for children – planning around Aboriginal children and out of home care to ensure they keep connected to their community, their culture, have genealogies, Aboriginalities, so they have all of those materials as part of their out of home care. We run a Koori Services Connect program which is around referral and support hub for families to help with job seeking to help families find services. We run family violence programs for women. We run a women and children’s refuge, so it’s a service for women and children. We run youth homelessness. We also are running a Royal Commission into Institutional Sexual Abuse Service to help people give evidence before the Royal Commission. We have an Aboriginal healing team that works across our whole organisation. We provide external training to the judiciary,


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the courts and child protection. We run a number of cultural programs including singing and music, possum skin cloak art mentoring for Aboriginal children, youth leadership programs, NAIDOC, National Aboriginal Children’s Day. So promote Aboriginal culture through our work. We run parenting programs in the prison for prisoners and for community, and we run the Kids Stay at School program. We also do foster care assessment and recruitment training. We do a lot of placement and support. And recently we are now undertaking Aboriginal guardianship, which is the transfer of guardianship from the Secretary to the head of an Aboriginal organisation. So that means that I will have total responsibility for Aboriginal children in out of home care.

MR McAVOY: Thank you. In hearing all of that, I think we should all be thankful that you’ve been able to attend?---I only say that and I really do say it because I do believe that Aboriginal people can do child welfare. I don’t do that to big note myself, and I just wanted to do it today to let people know that Aboriginal people can do child welfare and do it really well and that we can make a big difference, and if at some stage I could talk about Aboriginal guardianship, it would give you an idea of how we can do it better.

It’s a very important message, Ms Bamblett. Is – is the Victorian Aboriginal Child Care Agency the only Aboriginal child care agency in Victoria?---There are 19 other Aboriginal organisations across the state that deliver child and family welfare, and those organisations deliver health, housing, education, juvenile justice, housing programs, a whole range of programs. So they are like a community hub. Mental health, drug and alcohol, and so these operate across the whole of Victoria. We are only a small state, if you think about, you know, Victoria, we are a small state, but we have – and it’s really coming – those services have evolved out of the Aboriginal health services and so we have a lot to, you know, thank the Aboriginal health services for their model but also building on.

Thank you. I just would check with - - -

COMMISSIONER WHITE: Can I just ask just a little intervention here. Is it going to be suggested, Mr McAvoy, in the course of this evidence, that there are some models here that might be worth having a look at? Because I will ask some questions if there are, if that’s the way you are going to do it, or are you just going to – using this as a background to discuss the report.

MR McAVOY: I’m happy for the Commission to ask questions about the matters you’ve raised. The relevance of the operation of this particular agency and its setting in Victoria is that one of the recommendations of this report was the establishment of a Aboriginal child care agency or agencies in the Northern Territory. So - - -

COMMISSIONER WHITE: I can leave it to you, then, to develop the synergies between what happens in this Victorian model and what’s suggested might work here. Is that the case? You will get to that?


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MR McAVOY: It certainly will be the subject of some questions. But I’m certainly – I’m happy for - - -

COMMISSIONER WHITE: I will let you go first.

MR McAVOY: For you to ask any questions you wish.

COMMISSIONER WHITE: Of course.

MR McAVOY: The Victorian Aboriginal Child Care Agency, does it cover the whole of Victoria?---It does as far as the child protection response, and so – excluding the Mildura and Swan Hill area. So notifications – and we run permanent care across the state and the link-up program for the State of Victoria.

But in other respects, there are other agencies who have different areas within Victoria?---It is – like any state and territory, local responses, we encourage local responses and engagement of local communities to come up with local responses. And it works much better when local Aboriginal organisations are involved in the welfare of children, the protection of children and decisions around where children should be placed and including looking after those children once they are in the placement system.

Bearing in mind the Commissioner’s question, and I’m not going to ask you to break down each of the programs that you run, but you did mention a first notification service, if I’ve got that terminology correct, where there is a child protection notification. That notification comes to your agency?---Mmm.

In the first instance. Can you just explain how that works?---Child Protection will get a notification. If – and they will ask the question: is the child Aboriginal or Torres Strait Islander? And if the child is Aboriginal or Torres Strait Islander, they will then contact us and talk to us about the risk assessment, about the child’s situation and go through that and we will refer – our intake team will refer that, then, to our regional worker or our metropolitan worker, wherever the worker is situated. And when the Department actually does go out on the notification, we will attend with the Department. Quite often, the Department will listen to us with regards to if there are not significant enough concerns to undertake a notification, a referral will still go to an Aboriginal organisation for follow-up treatment or a response with regard to the concerns around the child.

And do you have any sense of how many such notifications you might deal with annually?---3000 a year. So we get about 3000 notifications through. And in Victoria, we are able, also, to respond to notifications of unborn babies, and so we will quite often be at hospitals as well, attending notifications and working with mums to try and make sure children and babies are safe.

Are many of the staff of your agency Aboriginal people?---All Aboriginal staff within that program. The manager is not Aboriginal, simply because she came – we


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needed to make sure that we had a child protection skill base and so the – it was a non-Aboriginal manager that worked in child protection. So she’s been in the program since it was established in 2002.

COMMISSIONER WHITE: Can I ask you this, Ms Bamblett: you say you’ve got a staff of 200 in your - - -

MR McAVOY: 300, your Honour.

COMMISSIONER WHITE: I beg your pardon, 300. And you’ve got about 3000 child protection raised files a year. What proportion of your staff would be managing those 3000 child protection persons?---It would be difficult to say simply because the notifications don’t – could be re-notifications. So it could also be that not all of those go towards a – you know, a protection order or get investigated. But – and it could be if there is a notification, it could go to the local ACCO for a response. So that’s – I call them an ACCO, an Aboriginal community controlled organisation. So those – about – and I’m not sure of the total number that actually come, but they could end up in programs and services across Aboriginal, across the state. So whether it be in family preservation, whether it – depends – if it’s family support, it goes to Integrated Family Services. If it’s more intensive, it could go to our Family Preservations or Restoration program. If it’s young mums that are vulnerable, it could go to Cradle to Kinder. So we work with young mums with babies to – and we will work intensively with them for 20 hours a week. So depending on the need of those families.

Yes. I can see the – of course, the answer must be more complex than a simple arithmetical one. I was really looking at something like initial case loads for your employees?---And I think that clearly the program – we have only just got from the Victorian government an increase in funding for that program because when we first started, we only had 1500 notifications, so the number of notifications have increased dramatically and the numbers of Aboriginal children in out of home care has increased significantly as well. So in Victoria, we have 1700 Aboriginal children in out of home care. And so between 6 to 700 of those are managed by Aboriginal services. But we have got a commitment from government to transfer all Aboriginal children to Aboriginal services, so there’s – the Minister is really committed to self-determination and ensuring that Aboriginal organisations are managing Aboriginal children.

Thank you. Thanks, Mr McAvoy.

MR McAVOY: Thank you. The Victorian Aboriginal Child Care Agency is not, though, the peak body for Victoria child care agencies?---No. We are the biggest provider of out of home care and the biggest Aboriginal service, but there is a peak organisation called the Aboriginal Children’s Alliance.

Just going back a step. The funding and recognition of responsibility for the VACCA - - -?---Mmm.


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- - - is that consistent with the Aboriginal child placement principle. Is that what underpins the transfer of services?---It – I think the Aboriginal services have been, you know, historically Aunty Mollie Dyer, who was the patron and, you know, the first CEO of the Victorian Aboriginal Child Care Agency actually attended an adoption conference in 1979, and it was at that conference that they started to talk about the Aboriginal child placement principles. She went to America and visited the first peoples over there to look at the Indian child placement principle, and so bought that back to Australia. And in Australia she’s – the Aboriginal – VACCA was established because of the number of Aboriginal children that were presenting to the Aboriginal Legal Service who had a history of – who were in juvenile justice, coming over to the criminal justice system, who had a history of being removed and put into out of home care. Who were placed with non-Aboriginal carer, had no culture, had no knowledge of where they came from. So Aunty Mollie really wanted to address why so many Aboriginal children were being placed away from their family. Thus she started to look at the Indian Child Welfare Act and looking at the Indian child welfare, the child placement principle. That child placement principle now is in Canada, New Zealand; all over the world. And so the Aboriginal child placement principle begun its journey in 1979, but it wasn’t until the late 90s that Aboriginal and Islander child care agencies were established across the nation. And I think the Northern Territory had two Aboriginal Islander child care agencies, one in Alice Springs, and one in Darwin.

Do you recall the names of those agencies?---I know that the one in Darwin was called Karu, and I can’t remember the name of the one that was in Alice Springs. I just think it was the Alice Springs Aboriginal Child Care Agency. But the Alice Springs one had more – a very much a youth focus and very much – always came – I was on the board of SNAKE, I was chair of SNAKE for a number of years and often – sorry - - -

If I can just take you back a second. You mentioned – who was the chair of SNAKE?---I was the chair of SNAKE for 10 years.

If you can just explain what SNAKE is?---The Secretariat For National Aboriginal Islander Child Care. So it’s the peak agency. Initially it was the peak agency representing child and family welfare. And today it represents Aboriginal children, early years, and child and family welfare.

So there were a number of Aboriginal child care agencies which were set up in most of the capitals around the country?---Yes.

Is it the case that there was a change in funding circumstances from federal to state?---Yes. The Commonwealth was really trying to move away from funding for child protection, and really felt that that was the state’s responsibility and a statutory responsibility. The states started to withdraw funding or get Aboriginal and Islander child care agencies to relook at how they could better utilise the funding for programs in line with the Commonwealth funding.


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So originally Aboriginal child care agencies were being funded out of the department of Aboriginal Islander Affairs in Canberra?---No, it was actually through a mainstream budget, so it was Aboriginal Islander child care agencies but it was out of, you know, Commonwealth. There were no such, like, Aboriginal-type programs for child welfare.

Did the change from the Commonwealth to the state funding base have an effect on the number of Aboriginal child care agencies?---A lot of states and territories chose not to take up funding for those Aboriginal Islander child care agencies. So a lot of Aboriginal Islander child care agencies actually closed down.

Thank you. On 9 December 2000, you were appointed by the Northern Territory Chief Minister, Paul Henderson, to a Board of Inquiry together with Dr Howard Bath and Dr Robert Roseby?---Yes.

You were here when Dr Bath gave evidence this morning?---Yes.

And you heard him give evidence?---Yes.

Do you recall who was the Minister For Families and Children at the time?---Malarndirri.

Malarndirri. And surname?---McCarthy. Yes. Well it is. Yes.

Do you recall who was the chief executive officer of the Department of Families and Children at that time?---Clare Gardiner-Barnes. Was it Clare Gardiner-Barnes. Nobody is helping me.

Sorry, I can’t help you with the answer?---I know. Nobody - - -

COMMISSIONER WHITE: All you need to say is I can’t really remember. It is easily found out, it’s not an exam question?---It is a few years ago. In my mind.

Sorry, we mustn’t overspeak, otherwise we will drive the poor reporter mad. Right. You don’t need to strain too hard to remember that, we can look it up.

MR McAVOY: So, together, with the three-member Board of Inquiry, you produce the Growing Them Strong Together report?---Yes.

And a summary report?---Mmm.

The Board of Inquiry was appointed to report on the terms of reference, which are set out at page 54 of the report. Could we see page 54, please. Can you see the terms of reference there - - -?---Yes.

- - - Ms Bamblett?---Mmm.


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In the paragraph at the bottom of that page, there is a reference to media comments after the formal announcement by both the Minister and the Chief Minister about the inquiry being broad ranging. So that was certainly your understanding as a member of the Board of Inquiry that it was to be a broad-ranging inquiry?---Definitely. I – in reading it I don’t think anybody, though, would have expected it to be as broad ranging as what we found it. Yes.

In that – in – if we can go back to the statement please, at paragraph 7. In paragraph 7 you refer to the inquiry being announced following a significant number of concerns raised in the media about failures to protect Aboriginal children in the Northern Territory and the inadequate responses of the Northern Territory families and children to protect them. Do you have any memory now of what those failures were and what the inadequate responses were?---Not any specific cases. All we had really was a lot of media attention on the fact that Aboriginal children were more likely to end up in out of home care and less likely to go home.

And then at paragraph 8 and 9 of your statement, you outline the processes undertaken by the Board of Inquiry for gathering information?---Mmm.

You can see at paragraph 8 there. If you can just read that to yourself, please. And then paragraph 9, please. The next page. And if we can look briefly at page 16 of the report, please. Annexure 14. And there on page 16 of the report you set out in fuller terms the extent of the process that you went into as part of the inquiry to gather information. Yes?---Yes.

Thank you. If we can go back to the statement, please, paragraph 9. Is it appropriate to say that the Board of Inquiry was trying to be exhaustive in its processes?---I think it was, and it was viewed that it was really important that we, as much as possible, got a sense of what was happening on the ground because we needed to know not only systemically what was happening within the child protection system and how that was operating, but what was actually happening on the ground for families and to get a sense of – did we have a really good understanding of what was happening in those communities.

You were attempting to look at all the relevant aspects of – that you were asked to inquire into?---Yes. And, I mean, that’s always challenging because I work in child welfare and so we know that, you know, children come into care for a lot of reasons. They come into care because of drug and alcohol, mental health, homelessness, and many other reasons. And so being able to get a sense from all of the communities about what were the real issues that were driving the high numbers of Aboriginal children coming into care, and what were the responses and how did we actually address the particular reasons of the communities.

So you went to great lengths to ensure that people, and organisations, and communities had the opportunity to participate in the inquiry?---We did. And I don’t know that I put it in my statement, but on a number of community forums my major issue was that lack of understanding of what child protection actually is. I think for a


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lot of Aboriginal people they only see it as a system that takes away children. Don’t really understand that child protection, you know, child protection is about protecting children. So they see it as a system that is about removal. I think there was perhaps one forum where we felt that – and I think some of the people are in this room, and I have to refer to people like Natalie Hunter and her family, who really understood child welfare and that’s because they worked in child welfare. So it really was quite hard to not hear from a lot of Aboriginal people about being able to put up solutions, and models, and practices and be able to inform child welfare because there was just so little knowledge within our Aboriginal communities about what could work, what solutions could work, and how to come up with those solutions and models.

So did the board see as part of its role or responsibility the education of the communities that it went to as well?---And we did – and, yes, and in a lot of communities a lot of people did come up to us and say: we want to do this, how can we do it. How can – you know, what can we do. So we had young people, we had older people, we had a lot of people saying we want to be able to do it in our communities. But I still don’t think they understood the complexity of child welfare because it is quite complex and hard work, and so it’s not as simple as just being a resource, it’s really about how do you actually, you know, ensure that if a child needs to be protected how do you do that in remote communities.

In addition to those people who were approaching you and really looking for ways to make their lives better, and they are also people who had distrust and that you say in your statement that distrust was a result of the Little Children are Sacred report and the response, the emergency response?---I think so. And I think that not having – not having any self – to me – self-determination in the communities or even any ability to sort of determine whether they could make decisions around child welfare. I think having a child welfare response and, you know, no disrespect to the workers because I think the child protection workers here in the Northern Territory are, you know, committed and hardworking people, but when you’ve got communities that don’t understand child protection and the only time you see child protection is when they are coming to remove a child, then there is a lot of distrust about the system. And so being able to provide better supports to families, being able to be there, and investing in communities to do that work. But we certainly heard from a lot of people that – about – particularly after the Little Children are Sacred report, a lot of people, and particularly older people, spoke about that they felt their parenting roles had been affected because they couldn’t parent their children because people saw particularly men as perpetrators, as abusers. Elders felt that their role as being leaders, as being, you know, law makers, was being – was being discredited because of the media portrayal of men. And so I think that a lot of community did have a lot of fear of government and, you know, instruments of government.

And, so, you had to encourage people to come and engage with the inquiry?---We did. I mean, we also – we tried to – really tried to get into the communities where we knew there would be people with – that we could engage with. And so we went to a lot of the child care centres, we went to the – the biggest resource obviously in Aboriginal communities in the Northern Territory is – are the Aboriginal health


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workers. They just opened the door for us in every – every community we went to. They were interpreters, they were such great resources. They just knew the community. The Aboriginal health centres are the hub of communities and an important part of, you know, Northern Territory fabric. But I think that they often get, you know, misunderstood as to what their – you know, they are not just health people, they are actually, you know, an asset to the community.

Do you think you would have been able to complete the inquiry in the time that you did without their assistance?---No way. No. No way. The health workers in communities, as I said, they knew all the families in the community, they knew, you know, were able to point us in the direction of people to speak to. But they weren’t the only ones, obviously. The principals in the schools, the people that worked in the schools. We had a lot of conversations with government business managers, so various people within communities that were able to link us in and who had the trust of people. So we were able to build those relationships with people.

And having built those relationships, did you and the other board members then feel any responsibility for what you were doing?---I think we were quite – I mean, I didn’t spend all my time in the Northern Territory doing the inquiry, so I was still CEO of the Victorian Aboriginal Child Care Agency at the same time, and it was the most traumatic time of my life. I’m going to try and not lose it at the moment. Because it was really hard dealing with people’s lives and seeing our Aboriginal people being treated the way they were treated and to not have a service system respond, I think it was very hard. And so going back home I often had to have lots of counselling because it was just really, really challenging.

COMMISSIONER WHITE: Perhaps that’s a good place for us to wind up today, Mr McAvoy.

MR McAVOY: I think so. Thank you, Commissioner.

COMMISSIONER WHITE: Thank you. Right. Is there anything that we need to arrange for tomorrow for – you mentioned an earlier start.

MR McAVOY: I’m sorry, I and my co-counsel assisting are happy for the hearing to recommence at 9.30 am tomorrow if that suits the Commission and the other representatives.

COMMISSIONER WHITE: Ms Brownhill?

MS BROWNHILL: No difficulties.

COMMISSIONER WHITE: Anyone else with any difficulty? I don’t need you to say yes, but if you’ve got a real difficulty we will try and accommodate it. All right. Thank you. If you could return for a 9.30 start tomorrow, that would be of assistance. Thank you. Would you adjourn the Commission, please.


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MATTER ADJOURNED at 4.34 pm UNTIL THURSDAY, 13 OCTOBER 2016


Index of Witness Events

HOWARD IAN BATH, SWORN P-104EXAMINATION-IN-CHIEF BY MR CALLAGHAN P-104

THE WITNESS WITHDREW P-127

COLLEEN MARIE GWYNNE, AFFIRMED P-128EXAMINATION-IN-CHIEF BY MR CALLAGHAN P-128


PATRICIA AUDREY ANDERSON, SWORN P-141EXAMINATION-IN-CHIEF BY MR McAVOY P-141CROSS-EXAMINATION BY MR BOULTEN P-161CROSS-EXAMINATION BY MR LAWRENCE P-163CROSS-EXAMINATION BY MR O’BRIEN P-175


MURIEL BAMBLETT, SWORN P-180EXAMINATION-IN-CHIEF BY MR MCAVOY P-180

Index of Exhibits and MFIs

EXHIBIT #12 CURRICULUM VITAE OF DR BATH P-105

EXHIBIT #13 SUMMARY OF GROWING THEM STRONGER REPORT

P-125

EXHIBIT #14 GROWING THEM STRONGER REPORT P-125

EXHIBIT #15 CHILDREN’S COMMISSIONER’S REPORT RESPONDING TO OMBUDSMAN’S REPORT

P-125

EXHIBIT #16 STATEMENT OF COLLEEN GWYNNE P-128

EXHIBIT #17 STATEMENT OF MS ANDERSON P-142

EXHIBIT #18 REPORT OF MS ANDERSON P-142

EXHIBIT #19 STATEMENT OF MURIEL BAMBLETT P-181


P-181


P-182

.ROYAL COMMISSION 20161012 P-192©Commonwealth of Australia

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transcript 12 october 2016 web vieware you able to just discuss the concept of informed consent?yes....

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