transcript 27 april 2017 web viewmr morrissey: yes. i think i won’t read it. anyway, you have...

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TRANSCRIPT OF PROCEEDINGS

O/N H-773196

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

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

DARWIN

9.43 AM, THURSDAY, 27 APRIL 2017

Continued from 26.4.17

DAY 32

MR P.J. CALLAGHAN SC appears with MR P. MORRISSEY SC, MR T. McAVOY SC, MR B. DIGHTON, MS V. BOSNJAK, MR T. GOODWIN and MS S. McGEE as Counsel AssistingMS S. BROWNHILL appears with MR G. O’MAHONEY and MR C. JACOBI for the Northern Territory of AustraliaMR P. O’BRIEN appears with MS C. GOODHAND and MR D. INDEVAR for Dylan VollerMR P. BOULTEN SC appears with DR P. DWYER for North Australian Aboriginal Justice AgencyMS F. GRAHAM appears with MS G. LEWER for the Central Australian Aboriginal Legal Aid ServiceMR J.B. LAWRENCE SC appears for ADMR A.R. HARRIS QC appears with MR BONIG for John ElferinkMR S. O’CONNELL appears for ANMS T. LEE appears for AA, AB and AC

.ROYAL COMMISSION 27.4.17 P-3067©Commonwealth of Australia

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MR MORRISSEY: Good morning Commissioners. The next witness is Mr Elferink, and he’s represented here, and there are a couple of issues that arise which could conveniently be dealt with. They really relate to the question of whether certain Hansard material, which is located at annexures to Mr Elferink’s statement, should go before this Commission. That material is located at annexures – I will just spell out the numbers – 29 and 33 through to 37 inclusive of the statement of Mr Elferink shortly to be tendered. I might also flag that my learned friend Mr Harris has indicated to me that the final sentence in paragraph 48 is sought to be withdrawn, not relied upon, on the basis that it may well fall - - -

COMMISSIONER WHITE: Just bear with us while we turn that up.

MR MORRISSEY: I won’t read it out given that it’s to be withdrawn.

COMMISSIONER WHITE: No, no. If it’s going to be withdrawn, don’t read it out.

MR MORRISSEY: Yes.

COMMISSIONER WHITE: So the beginning at, “Subsequent”?

MR MORRISSEY: The sentence commences, “It was made”. Sorry.

COMMISSIONER WHITE: Which paragraph again, Mr - - -

MR MORRISSEY: 48.

COMMISSIONER WHITE: 48. Sorry. How will you manage that in practical terms? You will redact that before it gets loaded up, Mr Morrissey.

MR MORRISSEY: Yes. Now, we don’t object to that happening, and we’re not agreeing or disagreeing with the basis on which it occurs, because it’s - - -

COMMISSIONER WHITE: It’s going.

MR MORRISSEY: I think it’s a matter that it could go and we will see what occurs from there. Now, with respect to the material that is to be found in the annexures, your Honour will recall the Solicitor-General yesterday alerted the Commission specifically to matters which had already been discussed, but pursuant to section 6 of the Legislative Assembly (Powers and Privileges) Act subsection (3) provides that:

In a proceeding – in proceedings in a court or tribunal it’s not lawful for evidence to be tendered or received, questions asked or statements submissions or comments made concerning proceedings in the assembly by way of – or for the purpose of - - -

.ROYAL COMMISSION 27.4.17 P-3068 ©Commonwealth of Australia

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COMMISSIONER WHITE: You know that the - - -

MR MORRISSEY: And (a), (b), and (c) are set out.

COMMISSIONER WHITE: Mr Morrissey, the transcriber is actually trying to take down what you’re saying.

MR MORRISSEY: I apologise. Yes.

COMMISSIONER WHITE: So you either don’t read it, because I’ve got a copy and we can look at it, or you slow down.

MR MORRISSEY: Yes. I think I won’t read it. Anyway, you have a copy of that, and I’m directing the Commission’s attention to subsection (3) there. Now, it places very severe limits upon the use to which such material can be made, and it appears that there are two reasons why we would submit that this material shouldn’t be advanced and my learned friend is in a position to put arguments to the contrary, that he wants to put in short compass. In short, what we say is that firstly if that material were advanced it would be by virtue of the operation of section 6 sub (3), entirely untestable, and its weight could therefore be – not be considered.

But the very fact that the issue of weight arises alerts us to the second problem, that the probative value of this material would be either minimal or zero. If it were said that it had some relevance by way of establishing a context or a chronology, or as constituting some sort of official record of government policy, if that’s all that it is, it is of such minimal relevance as to be capable of – characterised as having no relevance, but in any event it would be of minimal or no probative value.

COMMISSIONER WHITE: Right.

MR MORRISSEY: Now, for that reason we would submit they should shouldn’t be and, I as Counsel Assisting would not be inclined to tender those, but if the Commissioner indicated you could be assisting by following what my learned friend has to submit, then of course, we will abide the Commissioners’ views on that matter. So perhaps it would be appropriate to hear from my friend at this point.

COMMISSIONER WHITE: Yes. Thank you. Thanks, Mr Harris.

MR HARRIS: Yes.

COMMISSIONER WHITE: I wonder, Mr Harris, whether you formally might – just for our record announce your appearance for Mr Elferink.

MR HARRIS: Yes. If the Commission pleases, I appear with my learned friend Mr Bonig for Mr Elferink.

COMMISSIONER WHITE: Yes. Thank you.


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MR HARRIS: Commissioners, can I deal with the first matter very shortly, and that is the deletion of the sentence in paragraph 48. My friend has correctly described the course that we wish to take, but I wish to give one small additional amplification as to the reason why the sentence was there in the first place. It was not intended, and is not intended by Mr Elferink, to compromise or breach the confidentiality which attaches to the deliberations of Cabinet of which he was a member at relevant times and the sentence is not intended to do that because it was intended to capture, as it were, extra Cabinet statements not connected with a particular submission.

That said, on reflection and in light of the discussions yesterday, there is at least a respectable argument to say that such communications are within the reach of the confidentiality obligation, and the position that we have taken is to, for the avoidance of any doubt, is to seek its removal, but with the explanation that it was not proffered in the beginning with the intention of compromising the confidentiality which our client intends to keep.

COMMISSIONER WHITE: It’s in an uncomfortable juxtaposition with the sentence that went before though, isn’t it?

MR HARRIS: That was the view that I take to when I saw it again last night, your Honour. So that’s paragraph 48.

COMMISSIONER WHITE: Yes. Thank you. Well, that’s done.

MR HARRIS: In relation to the annexures of Hansard, might I start with – very briefly again what I think is not controversial in terms of the relevant legal position, and that is that if the record of the proceedings of Parliament is tendered for the purposes of establishing the fact of something having been said in the Parliament, that of itself, subject to questions of relevance to which I will turn in a moment, is a permissible use of Hansard and one which doesn’t infringe either section 6(3) of the Northern Territory Act or article 9 of the Bill of Rights from which it springs. So if you wish me, Commissioners, I will refer specifically to authority to make good the proposition, but I don’t understand that that proposition is controversial.

COMMISSIONER WHITE: I’m not sure about that.

MR HARRIS: Very well.

COMMISSIONER WHITE: I’m not sure at all whether the Solicitor-General will challenge that.

MS BROWNHILL: Not at all, Commissioner.

COMMISSIONER WHITE: You don’t challenge? I’m just uncertain what you’re doing with it section because 6(3)(a) precludes it being received to rely on the truth of it. Now, I’m just not quite sure then what the purpose is. Are you just putting it in to say there was a debate on this topic in the Parliament?


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MR HARRIS: Perhaps – yes, but perhaps the way of making good the relevance of that fact is to identify the subject matter of each of the annexures without going into too much detail. So can I start - - -

COMMISSIONER WHITE: I suppose it even seems like dangerous ground to me, but anyway - - -

MR HARRIS: Well, perhaps can I just – before I do that, I will just provide the Commission with a couple of authorities and briefly describe them.

COMMISSIONER WHITE: Thank you.

MR HARRIS: The first couple that I wish to refer to are decisions from the South Australian Supreme Court, but they’re none the worse for that, Commissioners.

COMMISSIONER WHITE: Certainly not.

MR HARRIS: The first is a decision of the Full Court in Wright, W-r-i-g-h-t I apologise, I don’t have copies here but if you will forgive me I will give a very quick paraphrase of them to make good what they stand for, Wright and Advertiser Newspapers Limited v Lewis (1990) 53 SASR 416. The second case is Rann v Olsen, R-a-n-n v Olsen, O-l-s-e-n, (2000) 172 Australian Law Reports 395, and if I can – the third case, and I move further north to Queensland, Commissioners, to a case called Erglis, E-r-g-l-i-s v Buckley [2004] QCA 223. Now, many of the cases that discuss the forensic use that can be used of the evidence of the proceedings of Parliament are defamation cases, and the three cases to which I’ve referred are all defamation cases.

In Wright’s case the plaintiff, who was Lewis, was the speaker of the House of Assembly in South Australia and he sued the newspaper and the author of a letter to the editor which he claimed was defamatory on him – of him. The letter to the editor was responding to an attack which had been made by the author of the letter by the plaintiff in the House under the protection of parliamentary privilege, and when the defendant and the newspaper sought to plead qualified privilege on the basis of the defence of reply to attack, the plaintiff sought to have that defence struck out on the basis that it infringed parliamentary privilege, because it sought to call into question what was said in the House by the plaintiff.

The Full Court held that the pleading of the statements by the plaintiff in the House was being done simply for the purpose of establishing the fact of what was said and not for the purposes of calling it into question, and observed in passing that the protection was intended to operate as a shield and not a sword, and so the plaintiff’s application to strike out the defence failed. In Rann v Olsen, the plaintiff, Mr Rann, was the leader of the opposition, Mr Olsen was the then Premier of South Australia. The Premier gave an interview outside of Parliament in which he accused Mr Rann of having lied to a parliamentary select - - -


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COMMISSIONER WHITE: That was a Commonwealth select committee.

MR HARRIS: It was.

COMMISSIONER WHITE: Yes.

MR HARRIS: So Mr Rann sued on the basis of having been called a liar outside of Parliament. And the defendant, the then Premier, sought a stay of the proceedings on the basis that he would be prevented from relying on the evidence that was given by Mr Rann before the select committee because it would have infringed section 16(3) of the Commonwealth Parliamentary Privileges Act. And the Full Court held that that was so, but ultimately determined that the question of the stay was for the trial judge and then the parties got sensible and settled the case and so the matter never went to an ultimate resolution.

But the question of the reach of parliamentary privilege in that particular situation was held by the Full Court to prevent the defendant from raising his defence. But your Honour, that’s an obvious example of where an attempt would be made to call into question what was said in the proceedings of Parliament, because the central forensic issue was whether it was true or not.

COMMISSIONER WHITE: Yes. I did have an opportunity to have a quick look at that case. There was a fairly deity argument by Doyle CJ about qualified privilege and whether you had to actually, to have the advantage of it, say that it was a lie or whether it was just your state of mind. He did concede that was a pretty delicate argument.

MR HARRIS: Yes. And ultimately resolved against the defendant.


MR HARRIS: The last case that I wish to refer to on this topic is Erglis. That was a case where a letter was sent by a constituent to a member of Parliament, who then read it in the House, and the letter was allegedly defamatory of the plaintiff. Now, the plaintiff couldn’t sue the member of Parliament what was said in the House is absolutely privileged, but the plaintiff wished to sue the author of the letter for the publication to the Minister or to the politician. And – but rely on the fact of its broad dissemination in having then been read into the House on the question of damages. The decision of the Queensland Court of Appeal was that the reliance on the statement in the House for the purpose of simply the fact that it was said did not offend the restrictions placed by the relevant legislation in Queensland embodying article 9 of the Bill of Rights.

The last case that I simply wish to refer to, and I’m grateful to my learned friend Ms Brownhill, and I should have remembered it because I was in it, but it’s a case again in South Australia, a first instance decision of Debelle J, a case of Rowan v Cornwall and others (No 5). It’s reported in (2002) 82 South Australian State Reports at 152,


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and there is a passage in the judgment of Debelle J at paragraph 115 when the topic of the use that – that is the forensic or evidentiary use to which statements are made, in this case the Legislative Council, could be put. And might I just read this paragraph. His Honour said this:

It is however necessary to bear in mind in mind that Dr Cornwall’s statements –

who was the defendant –

in the Legislative Council were the political expression of his executive acts. Two obvious examples are the decision to publish the review committee and the acquisition to accept the recommendations of the review committee to withdraw funding from the Christies Beach shelter.

The origin of the defamation related to the defunding of a women’s shelter in Adelaide, and Dr Cornwall was the relevant Minister of Health at the time who made these statements in the House. This is the passage to which my attention was drawn for which I’m grateful:

The fact that he announced those decisions in the Legislative Council doesn’t mean that the decisions cannot be examined. The executive act can be examined, but the statements in the Legislative Council cannot nor can any inference be drawn from those statements.

Now, that passage is a passage that I do wish to rely on to return to why we say these Hansards are both relevant and admissible and do not offend parliamentary privilege. Can I start with annexure 37. 37 is the - - -

COMMISSIONER WHITE: I wonder if I could have a copy of those annexures? I haven’t been provided with them. Have we got hard copies, Mr Morrissey?

MR MORRISSEY: I’m just ascertaining whether we do, and I fear that we have marked ones.

COMMISSIONER WHITE: I don’t mind if it’s marked.

MR MORRISSEY: We can provide a - - -

COMMISSIONER WHITE: If you can – prepared to part with it.

MR HARRIS: I’m sorry, I only have mine electronically, Commissioner. I don’t have a - - -

COMMISSIONER WHITE: Yes. Well, we don’t wish to do - - -


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MR MORRISSEY: Yes. Subject to any blue highlighting, which the Commissioners can ignore, we will do that. We just have to – we’ve collated them differently, so it might take a moment.

COMMISSIONER WHITE: Thanks, Mr Morrissey.

MR HARRIS: Do you have annexure 37, Commissioners?

COMMISSIONER WHITE: We’ve got – they’re unnumbered but I’m assuming they - - -

MR HARRIS: It’s the one relating to Pillars of Justice.


MR HARRIS: You will be pleased to know I don’t ask you to read it now for the purposes of making this ruling, but this is the – to use Debelle J’s words, this was the political expression, the statement to the people of the Northern Territory, the electors of the Northern Territory via the Parliament, of the actions of the government in relation to the policy which is described as Pillars of Justice. Now, the fact of that being announced when it was announced and in the terms that it was announced to the electors of the Northern Territory is, in our submission, a relevant fact. Term of reference F of the Commission’s terms of reference is whether, during the relevant period, more should have been done by the government of the Northern Territory to take appropriate measures, etcetera.

Now, one of those things is the fact of the announcement of various things. Now, with respect, I disagree with my learned friend, Mr Morrissey, that that somehow immunises the policy itself from analysis or debate or criticism. In my submission, it doesn’t. What it does, by operation of parliamentary privilege, is the fact that it was described in the House and announced to the House can’t be called into question or traduced in itself, but the policy which underlies it and its componentry is perfectly amenable to debate, challenge and criticism. But the fact of it being announced to the people of the Northern Territory via the Parliament via the responsible Minister is an inextricably connected piece of evidence to the narrative of events that covers what we’re talking about here.

COMMISSIONER WHITE: Is there no other document that reflects the Pillars of Justice policy? I would have thought there usually is.

MR HARRIS: And there is, Commissioner, and what we have also done in Mr Elferink’s statement is attach the annual reports.


MR HARRIS: And the annual reports include, as one of its attachments, the Pillars of Justice policy. Now, it is perfectly open to anybody here to take that annexure and


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do whatever they want with it in terms of asking Mr Elferink in the witness box as to its validity, utility, its cost or whatever, and that in no way impacts on the reception of this evidence of the objective fact that the announcement of the policy and its detail was described to the people of the Northern Territory through its Parliament. So the – as I apprehend what’s been put, the objection is as to relevance. I’ve explained why in our submission we say it is.

COMMISSIONER WHITE: I’m not sure whether you’ve addressed why you actually need the Hansard announcement by the Minister, whether in fact there is not some other sufficient means of doing so.

MR HARRIS: Well - - -

COMMISSIONER WHITE: Which would remove beyond all doubt, of course, any issues.

MR HARRIS: I understand that, Commissioner, but the expression of the position of the government of the day on a particular issue in terms of – and I don’t want to sound too quaint about this - - -

COMMISSIONER WHITE: I understand.

MR HARRIS: - - - but it was once said by the Privy Council what’s said in the House of Commons is said to all the word. That was at the height of the British Empire, but the point of principle is the same.

COMMISSIONER WHITE: I - - -

MR HARRIS: There is an articulation to the electorate in which the media, of course, is a partner because it invariably reports the proceedings of Parliament to the wider community but like courts, there is a fiction that the elector or member of the community who wishes to see what is being done, either by government or by the third arm of government, namely the judiciary, is notionally in court every time a court sits in open session. This is really just an example or an exemplar of that. And could I just touch on annexure 36. Now, there has already been evidence in the early life of this Commission back in – now so long ago I can’t remember, I think it was October, but it might have been December – but there were observations about the importance of OPCAT in terms of its relevance and applicability to children in detention.

Now, the fact of the matter is, disappointingly not noted last year, is that in 2013 Mr Elferink as the relevant Minister put a bill on the notice paper of the Northern Territory Parliament to have the Northern Territory Parliament adopt the OPCAT protocol and he did that, as he says in his statement, in the expectation that the Commonwealth Government was going to take the lead and would then – as the first port of call in terms of any international obligations. The reason why annexure 36 is of relevance is that that bill sat on the notice paper in the Northern Territory


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Legislative Assembly for nearly three years, not because of dilatory behaviour on the part of the Northern Territory politicians of any flavour, but because nothing happened at a Commonwealth level to have that protocol brought into any form of obligatory observance anywhere in Australia.

Now, the reason why that’s of significance here, Commissioners – and might I just also say, none of these submissions are intended to deflect from the important issues that the Commission is considering and as to which my client wishes to assist.

COMMISSIONER WHITE: But nonetheless – yes, I was aware, really, right at the start of this Commission that Mr Elferink had put it on the table in 2013, but that was, of course, pointless if the Commonwealth weren’t going to ratify it.

MR HARRIS: That’s right. Now, there is a very good example of – I can’t imagine anybody is going to have any interest in calling into question or, in fact, even asking a question about the fact of that being done, but it’s official record, it’s progress through the Northern Territory, and when it occurred is relevant given the criticisms which have been rather freely made of my client and the Government of which he was a member across the board. Now, where those criticisms are just and found to be sustainable, he will wear them, and wishes to support the Royal Commission. But he has been a standing target for six months and evidence which identifies the fact that he took action, which is utterly inconsistent with how he or his Government has been portrayed in various stages, is in my submission a relevant fact.

COMMISSIONER WHITE: Right. Thank you. Can I ask you one point of statutory construction.

MR HARRIS: Of course.

COMMISSIONER WHITE: What is the reach, in your submission, with section 6(3)(a), the phrase “relying on the truth”?

MR HARRIS: Well, I read it this way – perhaps I will go back historically. All of these legislative articulations in the various Constitution Acts of States and Territories find as their wellspring article 9 of the Bill of Rights.

COMMISSIONER WHITE: Correct.

MR HARRIS: The jurisprudence which sits around the article of Bill of Rights may be reduced to this proposition: that the proceedings of Parliament may not be called into question, or the subject of criticism, or if I extend to comment, that’s my – I don’t lay claim to that springing from the mouth of a wise judge. That’s my version of it. And so I read subsection (3) to give recognise to article 9 as being this: you cannot lead evidence, so you can’t tender a document, you can’t ask a question, or you can’t make a submission, for the purpose of questioning or relying on the truth of the proceedings in the Assembly. That’s not a limit on the tender of the evidence


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of the proceedings in the Assembly: it’s a limit on the way in which you might call it into question or try and go behind it.

In other words, you can’t put a document in which would have that effect; you can’t make a submission that would have that effect; you might can’t make a comment that would have that effect; and you contact give evidence that would have that effect. But it doesn’t mean that you are precluded by operation of subsection (3)(a) of tendering the Hansard if a relevant fact in the particular proceeding is the fact that it was said. So my submissions ultimately stand or fall, in my submission, on the Commission’s view of whether or not they’re relevant. And if they’re not, then we will accept, obviously, the ruling that they’re not.

COMMISSIONER WHITE: Absent that – any legislation, of course, that’s the yardstick of admissibility - - -

MR HARRIS: Yes.

COMMISSIONER WHITE: - - - in a civil proceeding.

MR HARRIS: Yes. I can summarise the other three very quickly.


MR HARRIS: Annexure 29 – and I don’t think the Commission needs to see it – is when the Vita Report was presented to the House and what was said about the Vita Report. Now, the Vita Report, of course, post dated the incidents in 2014 about which much has been said and done in this Commission. But the terms of reference of the Commission require an examination of Government policy and the treatment of children in detention from the passing of the Youth Justice Act up until, we infer, the announcement of the Royal Commission, which is in the middle of 2016.

COMMISSIONER WHITE: We might take an even broader view.

MR HARRIS: Indeed.

COMMISSIONER WHITE: And suggest that probably while the Commission continues to investigate current things then up to date.

MR HARRIS: But Commissioner, it didn’t run out in August of 2014.

COMMISSIONER WHITE: Certainly didn’t.

MR HARRIS: Which certainly, if you watched the ABC program, you could have been forgiven for thinking that was the case. But the position is that the Vita Report again was the statement of the Government, bearing in mind that the Vita Report was internally commissioned: it wasn’t an open inquiry like this. You’ve heard the evidence of Dr Bath that’s what he sought, but it’s relevant – the simple fact that the


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Vita Report was tabled in the House and described is a relevant fact in the narrative of these proceedings, because it was brought out into the open. And the last is 33 and 34 – 33 is the Second Reading Speech on the amendments to the Youth Justice Act in 2016 which included the revision of the definition of restraint devices.

And some attention was focussed on that yesterday in the evidence of Mr Middlebrook, and annexure 34 is the debate in the House on that topic. And I can tell the Commission, without you even needing to read it, that there was debate in the sense of opposition by her Majesty’s opposition to the passing of those amendments and the Hansard records it. The relevance of 33 and 34 is the fact that they occurred. The introduction of the amended definitions and their legislative approval was not some plan dreamed up by the commandant of some gulag, this was the result of the proper proceedings of an elected Parliament debating in the open the issues in terms of their impact on Corrections, both pro and con, including the welfare of the children who were the subject of it. And that fact, in my submission, is equally relevant in part of the narrative.

COMMISSIONER WHITE: Yes. I think we readily can accept that relevance.

MR HARRIS: So they’re our submissions on relevance. They’re our submissions on each of the issues of relevance.

COMMISSIONER WHITE: Yes. Thanks – thank you, Mr Harris. Do you want to be heard on - - -

MS BROWNHILL: I have nothing to add to the submissions made by my learned friend Mr Harris, Commissioners.

COMMISSIONER WHITE: Thanks, Ms Brownhill.

MR MORRISSEY: Can I respond briefly to what was said there.


MR MORRISSEY: So with respect to items – annexures 37, 36 and 29 at least, the fact of what occurred in Parliament may have a narrative relevance, but the content of the Hansard is not necessary to demonstrate that fact. The announcement of the Pillars of Justice and the content of the Pillars of Justice programs would not, on any view, as I see it, be controversial as to that fact and it needn’t be established by tendering the Hansard transcript. The same goes for the OPCAT material the subject of 36, and the same goes for the presentation of the Vita Report to the House. The Vita Report is before this Commission,

I cannot imagine that anyone would seek to persuade the Commission that there was something controversial about that it had been presented to Parliament on the date, and in the relevant terms, and so with respect to those three matters what I would submit is that there really is no relevance to the tendering of the Hansard. I hadn’t


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considered the argument put in respect of items 33 and 34 and there is, on the face of that argument, some relevance to the proceedings on that basis. The question of testability remains an issue for the Commission to determine as to what weight it would have, but I do concede a measure of relevance as advanced by Mr Harris on those points.

Could I just – the only other thing I hope I could assist with is a comment concerning the construction of section 6.3 as your Honour sought some – some guidance or assistance from my learned friend in relation to that section. The terms of sub (3) are such that it is not lawful for the evidence to be tendered by way of, or for the purpose of, and that requires a characterisation by your Honour – sorry, by the Commissioners – of whether or not the evidence is being tendered by way of, or for the purposes of, in this instance, relying upon the truth.

COMMISSIONER WHITE: Yes. I - - -

MR MORRISSEY: Now, that is the correct way to characterise what is being done here. This is being relied upon for the truth, and is forbidden. My learned friend sought to draw your attention to the fact that the section doesn’t operate categorically to exclude Hansard, and there is a basis upon which Hansard may in some circumstances be received, but the question is not whether it can be: the question is whether what is sought to be tendered falls within the prohibition. Our submission is that it clearly does so. The question that may be – that the Commissioners will have to consider is in respect of 33 and 34, the Second Reading Speech material.

I do concede the potential for some relevance there, but mere relevance will not save the matter. The question will still be whether it’s being tendered by way of, as well as for the purpose of, the truth of the contents. That’s a nice question and we will, of course, abide the Commissioners’ ruling on that point.

COMMISSIONER WHITE: Thank you. We will just adjourn briefly, Mr Harris and Mr Morrissey, just to discuss the submissions. Thank you.

ADJOURNED [10.17 am]

RESUMED [10.26 am]

COMMISSIONER WHITE: Mr Elferink, who is to give evidence today, was a Minister in the former Government. He wishes to tender, as annexures to his statement, certain reports of parliamentary proceedings in the authorised Hansard. The issue has been raised as to whether this Commission and Board of Inquiry may receive those annexures. Section 6 of the Legislative Assembly (Powers and Privileges) Act concerns the provisions well-known to all constitutionalists as article 9 of the 1688 Bill of Rights. It pronounces in more modern language, and in the light


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of modern life, the spirit of that provision. So far as is relevant to the decision which the Commission needs to make, section 6 subsection (3) provides that – and for the purposes of this argument it may be assumed that the provision covers a Royal Commission and Board of Inquiry:

In proceedings in a court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made concerning proceedings in the Assembly by way of or for the purpose of –

and there follows a more precise description of the prohibition, but as an example subsection (3)(a) provides:

questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in the Assembly;

and subsection (3)(b) provides:

otherwise questioning or establishing the credibility, motive, intention or good faith of a person;

or in subsection (3)(c):

drawing or inviting the inference of – drawing of inferences or conclusions wholly or partly from anything forming part of those proceedings in the Assembly.

Mr Harris, who seeks the – who appears for Mr Elferink with Mr Bonig and seeks the tender of these annexures, which Senior Counsel Assisting is not disposed to tender as part of Mr Elferink’s statement, bases his argument for the reception of these Hansard extracts on the fact of the debate in the House or the statements in the House simpliciter, and for no other purpose. He has referred to a number of authorities which, or I think in all cases relate to defamation proceedings which has generally been the cause of this matter being ventilated in the courts. It is probably unnecessary to go to those cases; the principle is well established.

But in the case of Erglis v Buckley [2004] QCA 223, the court of appeal in Queensland made the observation that the fact that the matter was said in the Parliament did not offend against the prohibition in the Queensland equivalent of section 6. It seems that the issue then becomes one of relevance. Mr Harris contends that the terms of reference would enliven the relevance of the fact that the Hansard report of the proceedings occurred because it requires this Commission and Board of Inquiry to investigate whether more should have been done to deal with the issue of juvenile detention in the Northern Territory.

Annexure 37 concerns the announcement of the policy strategy entitled Pillars of Justice. Annexure 36 concerns the fact that a bill had been laid before the Legislative Assembly in 2013 which would provide for the machinery for the


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ratification of the United Nations Convention, colloquially known as OPCAT, to be given effect in the Northern Territory. In 2015, the Commonwealth having announced that Australia would not ratify that Convention, it was – the bill was withdrawn from the parliamentary papers. Annexure 29 concerns the tendering of the report by Mr Michael Vita into aspects of detention in the Northern Territory in the Legislative Assembly, and annexures 33 and 34 concern the amendments and the debate in the Legislative Assembly which resulted in changes to the Youth Justice Act relating to the use of restraints.

It is conceded by Mr Morrissey that, for the most part, those Hansard debates have a narrative value, but has submitted that there are other ways in which the narrative could be laid before this Commission. The question that was raised in argument whether subsection (3)(a) of the legislation, where the expression “relying on the truth” is used as suggesting that that may cut across the tender, even if it is for the fact, but on examination of the place where that lies in subsection (3) it seems clear that it is more assertive than merely relying on the fact that it was said, and we have concluded that it does not inhibit the receipt of the Hansard extracts.

We have concluded that it is relevant to the terms of reference that these extracts from Hansard be placed before the Commission and Board of Inquiry, but we note that because of the prohibition on challenging which is contained in section 6 that the parties wishing to cross-examine Mr Elferink must be – tread very carefully, and if they wish to discuss the subject matter of those topics that are contained in the Hansard, they must do so by reference to other sources of information. There are ample in the evidence, and so it does not unduly impede their right of cross-examination, but in terms of the Hansard itself they will have to stay inviable and if there is anything to be made of that, then, of course, because it hasn’t been able to be tested, then the weight that is given would be very slight. But the conclusion that we have reached is that this Commission and Board of Inquiry will receive those annexures into evidence.

MR HARRIS: Thank you, Commissioners.

MR MORRISSEY: Thank you, Commissioners.

COMMISSIONER WHITE: Now, Mr Morrissey, can we return your annexures.

MR MORRISSEY: May I just raise one other matter – thanks, Commissioners – one other matter. At paragraphs 84 through to 89 inclusive the statement proposed to be tendered deals with some comments made by the witness - - -


MR MORRISSEY: - - - concerning the Four Corners report, and he gives expression to some criticisms that he has of the way in which that report was – the way in which he was interviewed and the way in which the report was ultimately edited, constructed and presented, and with the communications that were made with


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him along the way of that process. Now, it seems premature to form a judgment as to whether or not that material could assist this Commission in any meaningful way, given the wide proliferation of issues. It does expose an arguable – one might say an arguable case for grievance on behalf of Mr Elferink.

However, of course, we only have in this statement what he says. Looks like it’s capable of generating a lengthy and distracting side issue. I can’t say however, at this point, conclusively, that it is entirely irrelevant and one must wait and see – and clearly other witnesses are coming along, including Mr Giles, where matters might arise that bear upon the question whether this material ought to be admitted or not. What I propose – we have also received administratively a communication from the ABC that – they’re not represented here but they’ve indicated a view that they would object to the tendering of this.

I can do no more than mention that we’ve heard of this, and there’s nothing before the Commission. What I propose, therefore, is not to seek that it – is not to seek it be redacted at this point, but to defer for consideration whether the Commission would ultimately receive those paragraphs once the evidence is in and the issues can be assessed. But I note an inclination to say that, on the current material, I would be urging that it not be admitted but I can’t say that in fairness to Mr Elferink right now because there may be other materials that arise.

COMMISSIONER WHITE: Alright. Thanks, Mr Morrissey.

MR MORRISSEY: If that’s sufficient, I will tender it subject to that .....

COMMISSIONER WHITE: Well, I think Mr Harris probably wants to be heard on it.

MR HARRIS: We certainly do, but we’re find mindful of the time and the constraints under which everybody is operating. I’m content for that course, because ultimately it would be a relevance argument, one that we hope to make good in due course, and have those paragraphs received by the Commission. But we could put that to another time so that we can actually get through the process of taking the rest of the evidence.

COMMISSIONER WHITE: Alright, then. Thanks, Mr Harris. One of the difficulties about this is that it is referred to – nearly every report that one reads - - -

MR HARRIS: That’s right.

COMMISSIONER WHITE: - - - about the – this Commission and like it or not, it does seem to have become a sort of a – you know, the reference point - - -

MR HARRIS: Indeed.


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COMMISSIONER WHITE: - - - for the Commission. On the other hand, they are pretty strong words and if really the ABC should, I imagine, need to be heard if we’re going down that path and then as Mr Morrissey said you’re really into a little piece of sublitigation.

MR HARRIS: And can make the point Commissioner, so the Commissioners understand the purpose of this material being included and what it’s not intended to try and produce: this is not a Royal Commission into the ABC. That may be for another occasion, that’s a different issue. This is – and this is not intended to be a distraction, because the issues that the Commission are dealing with are governed by the terms of reference that the Commission has been given, and the genesis of the creation of those terms of reference is one matter, but it’s not the central matter. And we would – we did not want and do not wish to be a part of a distraction of the Commission from its work, but nevertheless the weaving into the proceedings and fabric of this Commission of the fact of this ABC broadcast is unarguable.

And there has not been anywhere a treatment of what actually happened, and it’s not just Mr Elferink’s sensibilities. One of the issues here is the question of whether or not there was appropriate transparency of matters that were undertaken at various times. So how he actually dealt with a media inquiry in 2016 is of itself relevant, we say. But I’m happy to have the argument on .....

COMMISSIONER WHITE: Yes. Well, that’s true, but of course the issues that he is complaining about, the – that they weren’t ventilated in the program - - -

MR HARRIS: Yes.

COMMISSIONER WHITE: - - - he can give evidence about those. I think the issue is really, is it fruitful to say this – all the material that was taken by the interviewer and edited out, therefore it didn’t have balance, that’s not – that’s really not relevant to our terms of reference. But what he did tell the reporter, because it bears upon his views about the detention system, are relevant.

MR HARRIS: Yes.

COMMISSIONER WHITE: So can’t he give that evidence without this?

MR HARRIS: He can. Of course, he was interviewed for five or six hours, and most of that didn’t find its way anywhere into the story.

COMMISSIONER WHITE: I read that; we read that. But isn’t that the point though? The dispute with the balance of the ABC isn’t really something we’re asked to investigate, and that’s what those paragraphs are doing.

MR HARRIS: There’s no doubt that they raise trenchant criticisms of how he was dealt with and the calibre of the story, and in no way is that intended to cut across or


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demean the importance of the investigations that the Commission are carrying out into various matters; not at all.

COMMISSIONER WHITE: We didn’t think so. We just thought he was getting it off his chest.

MR HARRIS: Well, and – but that’s true. But the actual process by which he engaged with the media and made available, warts and all, what had occurred and what was occurring in relation to the Corrections system in the Northern Territory in 2016 is of – we say is of itself a relevant consideration.

COMMISSIONER WHITE: It is.

MR HARRIS: The fact that it was then not taken up in the way that the ultimate broadcast was sensationalised is a different issue; we accept that.

COMMISSIONER WHITE: Alright. Well, that means we really might need to put that to one side.

MR HARRIS: Yes.

COMMISSIONER WHITE: If you want to talk about it more, and make some more full submissions about that, Mr Harris, but that’s our current thinking about the status of those paragraphs. You’ve used the word “distraction” and I might even suggest relevance to our inquiry.

MR HARRIS: Certainly the last thing that our client wishes to do is hijack the focus of the proceedings.

COMMISSIONER WHITE: Alright. Thanks. Thanks, Mr Morrissey.

MR MORRISSEY: Very well. So ..... just in conclusion, I’m content to proceed like that, and I – it has just been pointed out to me to note that the ABC specifically also agreed that they did not wish to hold up the proceedings. They wanted the objection to be registered on relevance grounds. That has been done, and no more needs to be said about that at this point.

COMMISSIONER WHITE: Thank, Mr Morrissey. Are we up to calling Mr Elferink?

MR MORRISSEY: I think so. I call John Elferink.

<JOHAN WESSEL ELFERINK, SWORN [10.45 am]

COMMISSIONER WHITE: Thank you, Mr Elferink. Kindly be seated.

.ROYAL COMMISSION 27.4.17 P-3084 J.W. ELFERINK ©Commonwealth of Australia

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<EXAMINATION-IN-CHIEF BY MR MORRISSEY [10.45 am]

MR MORRISSEY: Thanks, Mr Elferink, would you just state your full name, please?---My full name is Johan Wessel Elferink; I’m commonly known as John Elferink.

Would you state what your occupation was from the time when the CLP government was elected in August 2012 through to the time when you retired from Parliament?---I was a Minister of the Crown and Attorney-General of the Northern Territory for a number of portfolios. They changed throughout that time. If you want a more accurate descriptor, I would refer you to the administrative orders of the Northern Territory. However, my final – my final portfolio mix was Attorney-General, Minister for Corrections up until the last couple of weeks, Minister for Health, Minister for Mental Health Services, Minister for Disability Services, Minister for Child Protection, and leader of Government business in the House.

Yes. Prior to having those positions as a Minister, and prior to the election in 2012 of the CLP Government, were you a member of Parliament?---Yes.

What functions did you have whilst a member of Parliament?---As a Shadow Minister in the former CLP Shadow Cabinet between the years 2008 and 2012, and as the Member for Port Darwin. Between the years 1997 and 2005, I was a member for MacDonnell, which is a – now largely the seat of Namatjira, it’s an area of about 300,000 square kilometres tacked onto the bottom of the Northern Territory, largely made up of people living in remote areas.

When you were a Shadow Minister in the 2008/2012 period what were your areas of responsibility?---There were a number of them. They are listed in my statement, but they dealt with local government and similar issues of that nature. Once again, there were a number of changes during that period. The House has been advised, they can be found on the record.

In that period of time, although you didn’t have direct responsibilities for youth justice, what awareness did you have of youth justice issues?---I was aware of them, but that goes back to when I was a police officer as well in the Northern Territory having worked both in Darwin and Alice Springs, and I had formed a number of opinions in that time as to what those youth justice issues were and what they meant.

Very well. Thank you. Now, did you make a statement in this matter dated 30.3.2017?---Yes, that’s correct.

To which you have annexed a number of documents?---That is correct.

Very well. Have you had the chance to read that statement for the purpose of this proceeding?---Yes, I have.

.ROYAL COMMISSION 27.4.17 P-3085 J.W. ELFERINK XN©Commonwealth of Australia MR MORRISSEY

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Do you say that the contents of that statement are true and correct?---Yes.

Commissioners, I tender that statement.

COMMISSIONER WHITE: With the reservations that - - -

MR MORRISSEY: With the reservations indicated earlier concerning the latter paragraphs.

COMMISSIONER WHITE: Thank you. And has the redaction to 48 been effected?

MR MORRISSEY: No, I believe not. I believe that in terms of what is to be uploaded – I will seek instruction. I think that’s in train but has not yet been done.

COMMISSIONER WHITE: Alright. Thank you. It’s just that I want to be quite certain that we’re not going to have a mistaken uploading of the bits that are already out. So it won’t be uploaded for general access, I take it.

MR MORRISSEY: No.

COMMISSIONER WHITE: And that instruction has been given, Mr Morrissey.

MR MORRISSEY: That instruction has been given and is heard.

COMMISSIONER WHITE: Yes. Thank you. Well, with those assurances, exhibit 321.

EXHIBIT #321 STATEMENT OF JOHN ELFERINK DATED 30/03/2017

MR MORRISSEY: Good. Thank you. I will just take you firstly to some questions about ministerial responsibility, both collective and individual. Could we please have brought up on the screen the Cabinet handbook of the Northern Territory. That is in tender bundle 74A, what’s coming up – thanks, Mr Elferink. There may be some ponderousness about this. I will just have to take you to some specific parts and we will go screen by screen.

COMMISSIONER WHITE: Is that in the original tender bundle rather than the supplementary? It’s in supplementary? Yes, thank you.

MR MORRISSEY: It’s the supplementary, I apologise. Did I not say “supplementary”?

COMMISSIONER WHITE: Yes, I see.


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MR MORRISSEY: What I may do, although we’re relying for all in court – all in the Commission on the screen, for convenience I might seek that a hard copy be provided to the witness, because - - -

COMMISSIONER WHITE: Yes, certainly.

MR MORRISSEY: - - - he may wish to flick and to point to something.

COMMISSIONER WHITE: That’s fine. Certainly.

MR MORRISSEY: Sorry, Mr Elferink. Everyone in the Commission is going to have what’s on the screen, but you – you may be quite nimble at moving through that if you need to be?---Right.

So just tell us you’re doing that?---Sure.

You let us know what you need. Very well. Could I ask that we go, please, to paragraph 1.3.2, Collective Decision-Making and Responsibility?---1.3.2?

Correct?---Yes, I have it in front of me.

Very well. Now, Commissioners, there may be some reading of the transcript, I appreciate it’s – but it founds the questions. So here you see the collective decision-making and responsibility is set out and a description of the Cabinet system of government is expressly located on the principle of collective responsibility?---That is correct.

That’s how you understood it?---Yes.

You were familiar with this provision?---I was also familiar with the principle before ever reading the provision.

Yes. And more – you understood that the provision rested upon that principle, that constitutional principle of collective responsibility?---Yes.

And what did you understand that – I appreciate it’s set out there and you could refer to this, but what was your understanding generally speaking of collective responsibility?---Essentially, it’s not entirely dissimilar to a board of the company. The Cabinet, when it makes decisions, can have all the arguments it likes behind closed doors of the Cabinet room, but when stepping outside of the Cabinet room was obliged to speak with one voice. It is at the core of being able to provide a stable executive to the people of the ..... of the government.

Yes. What’s the effect of a disagreement that an individual Minister has with colleagues within the Cabinet room? Are you entitled to give expression to that disagreement once outside the Cabinet room?---Not as a general principle, no.


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No. What recourse is open to a Member Of Cabinet who is aggrieved by a Cabinet decision, but fail to persuade the colleagues?---Subordination or resignation.

So by that you mean that one either goes with it as part of the collective or one resigns?---Yep.

And did you ever resign from Cabinet over any issue in your career?---No, I did not.

The sort of things that might lead you to resign from Cabinet include matters where you felt that Cabinet had come to a decision that was – well, perhaps I won’t dictate to it, you tell me what sort of matters did you feel fell into the category of matters that would trigger a resignation?---Something that was so repugnant to my sensibilities and personal opinions that is I could not justify the requisite compromise that is inferred in Cabinet solidarity. It has occurred in the Australian – in the Australian environment on a number of occasions, but no such matter came up within the domain of – or within my experience inside the Cabinet room.

Very well. Thank you. Your Honours – sorry, Commissioners, I tender the Cabinet handbook.

COMMISSIONER WHITE: Exhibit 311.74A.

EXHIBIT #311.74A CABINET HANDBOOK

MR MORRISSEY: Now, we will come back to that document, but I just wanted to take you to the Australian – a Commonwealth statement of ministerial principles and could – this is supplementary tender bundle 20C. Could that please be brought up. In respect of this document, and I’m going to come back to the Northern Territory document when we come to individual ministerial responsibility. Firstly, may I ask you this: this is an Australian Government document. Could the witness please be taken to paragraph 1.3, that’s at page 2 of the document?---Yes, I have it.

Now, are you familiar with the document, first of all?---Yes.

Was it a document - - -?---Aware of it.

Yes. This document was circulated around the state governments and territory governments?---Yes, sure.

In what context was it that you came to be familiar with this?---I had become aware of it over time. From time to time I would speak to the clerk’s office at the Parliament of the Northern Territory. I don’t recall whether it was circulated, but at some point I became aware of it.

And by “some point” do you mean during the time of your ministership?---Yes.


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Yes?---Well, actually to be accurate, I believe it was during the period of my ministry but it could even have predated it. But bearing in mind this document is dated December 2013 there were also preceding documents that were similar in nature.

Well, thanks for pointing that out. It may be also that you may see fit to point out a similar issue in relation to other documents. Feel free to do that when appropriate?---Just that I was a Minister in December ’13, so I may be thinking of a previous document of a similar ilk.

Could I take you to 1.3(iii), a description of the requirements of Ministers, provide that:

Ministers must accept accountability for the exercise of the powers and functions of their office.

?---Yes.

That is to ensure that they conduct, representations and decisions as Ministers and the conduct, represent and decisions of those who act as their delegates or on their behalf are open to public scrutiny and explanation?---Yes, I accept that.

And sub (iv):

Ministers must accept the full implications of the principle of ministerial responsibility. They will be required to answer for the consequences of their decisions and actions. That is, they must ensure that –

and there are three dot points:

Their conduct in office is, in fact and appearance, in accordance with, these standards; they promote the observance of these standards by leadership and example in the public bodies for which they are responsible; and their conduct in a private capacity upholds the laws of Australia and demonstrates appropriately high standards of personal integrity.

?---Yes.

And you were aware of those standards and you felt that they applied to your duties as a Minister?---Yes.

Thank you. May I tender that document, please.

COMMISSIONER WHITE: That’s exhibit 311.20C. Yes, thank you.


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EXHIBIT #311.20C COMMONWEALTH STATEMENT OF MINISTERIAL PRINCIPLES

MR MORRISSEY: Thank you.

May we return, please, to document 3 – exhibit 311.74A. This is back to the Northern Territory?---This is the cabinet handbook February ’15.

That is correct?---Yeah.

Now, I will now turn to the issue of individual ministerial responsibility, and would you please turn to page 6, and at 1.4.3?---Yes.

So do you see there a section that refers to individual ministerial responsibility?---Yes.

And that provision provides that:

Some ministerial posts have responsibility for certain statutory functions that are exercised by the individual Ministers and not through Cabinet. Ministers should, however, inform Cabinet of any exercise of individual statutory power that merits Cabinet level attention.

And it provides an explanation as to why that is?---Mmm.

Now that – do you take that provision there as really being a way of linking the duties of individual ministerial responsibility to the duties of – the requirements of collective responsibility in Cabinet?---Yes.

In other words, that you – you’re familiar with the requirements of individual ministerial responsibility. That provision links those individual responsibilities to Cabinet?---Not absolutely. The – the qualifier in that particular statement is the – the “merits Cabinet level attention”, so there would be some subjective wiggle room, for lack of better terms, in relation to that.

Yes?---To that particular issue.

Yes. Could you go, please, to page 11 and in particular paragraph 2.4.1. This deals with ministerial responsibility for proposals. And it provides that:

Submissions coming before Cabinet and Cabinet subcommittees must have a sponsoring Minister, usually the Cabinet Minister with portfolio responsibility. Ministers are expected to take full responsibility for the proposals they bring forward, even where detailed development or drafting may have been done on their behalf by officials.


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?---Yes.

Very well. Now, that provision applied to you in relation to the youth justice component of your duties when you brought forward either Cabinet submissions concerning funding or the – or memoranda by way of a Cabinet submission?---Yes, but more than just funding. There were also policy positions as well.

Certainly. Pardon me, I was limiting it to funding. Might I interpose something here, it’s a specific question: what is the difference between where funding is being sought for a particular proposal – what’s the difference between a Cabinet submission and a memoranda and in what circumstances does one use one as opposed to the other?---One is a – a Cabinet submission, as a general principle, will be a more detailed document which will have received the attention of government CEOs right across all departments, all relevant departments. And they will be properly researched and given a great amount of gravity as well as any cost implications, if there are any, will be included in a Cabinet submission. A Cabinet memoranda will be more in the nature of an advice by a Minister to Cabinet that a certain policy position is being pursued, and if any other Cabinet Minister has any objection to that then that is their opportunity to raise it within the cloisters of the Cabinet itself.

Yes. Thank you. Now, just bear with me for one moment. Could I ask you that you turn – we go to page 26 of that document. This is appendix A and it’s headed Ministerial Code of Conduct?---Yes.

Having regard to the heading at that point 1, you see it calls into play the application of Westminster conventions and you understood those are the conventions of the Parliament of Westminster which underpinned the provisions that we’ve just looked at and also the code of conduct that we’re now looking at?---I’m certainly familiar with the conventions.

Yes. And at the third paragraph in the preamble do you note the comment is made:

Merely avoiding breaking the law will not always be enough to guarantee an acceptable standard of conduct. Ministers must not only act lawfully, but also in a manner which withstands the closest public scrutiny, and has regard to prevailing community values and standards.

?---Yes.

Could we look forward, please, to paragraph 4.2?---Yes.

Once again you see iterated the requirement that Ministers are expected to take full responsibility for the proposals that they bring forward?---Yes.


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And in general terms you understood that Ministers had to take responsibility not merely for Cabinet or budgetary – sorry, not merely for budgetary proposals but for proposals concerning policy?---That’s correct.

Thank you. Very well, thank you for that. I now want to ask you some questions about the appointment of senior officials?---Sure.

And I’m really limiting this to the youth justice area, but if you need to go more broadly to explain a practice feel free to indicate that should be done. So with the appointment of the Commissioner was that an appointment that you alone were empowered to make?---Which Commissioner? I have had several Commissioners working for me.

Well, I mean Commissioner Middlebrook?---No, I never appointed him.

No. In whose power did it lie to appoint the Commissioner?---It’s a Cabinet decision. Ultimately, it’s – the appointment is made – actually, that’s not correct. It was the Chief Minister who determined who were heads of departments, I apologise.

Now, plainly the Chief Minister must – that’s a Cabinet decision?---No, the Chief Minister retained the power to hire and fire CEOs within the ambit of his own power.

Was the practice for the Chief Minister to act upon the recommendation of the responsible Minister for a particular area?---Not on all occasions. On a number of occasions, I was simply informed who my CEO would be.

No issue arose concerning Mr Middlebrook, however? That – he was a Commissioner with whom you were perfectly content to work?---My relationship with Mr Middlebrook was professional and I thought that he was a man working very hard for the true interests of the people that were in the system.

Yes. And it’s clear, both from his continued tenure, and also from the tenor of some correspondence that we’ve seen here, you had a high regard for Mr Middlebrook?---I had a high regard for Mr Middlebrook – I will rephrase that: I have a high regard for Mr Middlebrook.

Yes. Now, just concerning some matters about the structure of your office, Mr Middlebrook reported directly to you. Did you also have a press officer or a media officer?---Yes.

Now, was that media officer responsible to you in a line of command – in the chain of command, or also responsible to the Chief Minister?---No. Directly to me in the chain of command. However the press officers, in terms of consistency of message, would meet on a regular basis, I think almost every morning to make sure that the issues of the day and that government’s message was clear and straightforward.


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Very well?---The meeting would have been chaired by the senior press officer from the Chief Minister’s office.

From 2012, are you able to say who your press officer was from the time you commenced as a Minister?---I had two – two – actually, I had a number of press officers but two consistent ones were Ms Danielle Lead and, subject to her departure, a lady by the name of Dimitra Grell.

Yes. Thank you. Did you have a chief of staff at that time?---I’ve had a number of chiefs of staff, but the primary was Steve Dunham.

Steve Dunham, whose name we’ve seen, and for what period was Stephen Dunham the chief of staff?---The best part of my ministry, I think two and a half to three years.

Who was his successor?---Julian Swinstead.

Yes. Thank you. Just – now excuse me, I want to step through, one might say, some formalities here. I just wanted to ask you some questions about an aspect of individual ministerial responsibility. As you know, there have been differences in the way in which individual ministerial responsibility is said to result in an obligation for the Minister to resign in certain circumstances. Broadly speaking you’re familiar with it?---Yeah.

Although British practice suggested that – that a – a failure of ministerial responsibility might result in an obligation to resign, you’re also familiar with that that has not been the practice in Australia; is that correct?---If a Minister has failed in their responsibility they may well choose to resign, yes.

Yes. But you’re not aware of any occasion when an Australian Minister has been forced to resign or compelled to resign?---Depends on how you describe “force”. I mean, you know, ultimately I imagine that a motion of the House which professes no confidence in a Minister may be sufficient to knock that Minister over.

Yes?---But once again, that has also been resisted historically in this country. Resignation is – generally occurs at the hands of the Minister themselves. Often Ministers will find themselves in a situation that they have no choice but to resign.

Yes. In a situation, though, where a Minister is free from personal fault – perhaps let me put the matter another way and I’m exempting here a quote from a learned text. It may be that you haven’t seen it, but I will just – I will put the quote to you in any event and see what you say about it. And your Honours we’re quoting here from a former Minister of the Liberal Party, Sir Billy Snedden. It’s quoted in a text which we will provide in due course but Mr Snedden observed this:


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It is, of course, true that there have been and continue to be cases where Ministers have resigned or been forced to resign as a result of personal misconduct such as misleading Parliament or conflict of interests.

He went on to say:

It would be a rare event for a Minister to resign over the wrongdoing or incompetence of departmental officials.

He wept on to say this:

The reality is there is no absolute vicarious liability on the part of a Minister for the sins of his subordinates. If the Minister is free from personal fault and could not, by reasonable diligence in controlling the department, have prevented the mistake, there’s no compulsion to resign.

Now, that’s a statement I’ve read to you which – without notice. Feel free to make any reservation you want, but what’s your comment as to that vision of ministerial – individual ministerial responsibility?---It’s hard to make – (1) it’s hypothetical, (2) it carries a number of qualifications. One would have to template a fact scenario underneath that and then hold that up to the light to determine whether or not, on the facts of a particular scenario, whether that was true or not. As a general principle I would embrace it, but only in the loosest possible terms.

Leaving aside what one might describe as the nuclear option of resignation of a Minister when something goes wrong in a department, what are the other sanctions, or one might say disincentives, for a Minister in accounting for mistakes that are made within the department or errors or dysfunctions that occur?---You essentially have one of two choices. One, you either throw – no, I will rephrase that, that’s not correct. You either publicly criticise the public service involved, and that means you place them at arm’s length, or alternatively you accept a mistake has been made and that the buck stops with you. I turned my mind to this particular issue and told any public servant who cared to listen over the years that, when I addressed them, that so long as they were on the right side of gross negligence or criminality then they would enjoy the support of their Minister, and that was done for a very particular reason: is that I had witnessed a previous government regularly, as I continue to witness the current Government, sheeting home blame to public servants. The consequence of that is that it is a convenient way to dispose of the issue at hand. The downside is that you get a bunker mentality in the public service, and that is a real way to erode the morale of people who are serving the interests of the jurisdiction.

Just – and because you phrase it now, I will step into something more specific, if I may, because it’s opportune. Regardless of party political stance that - - -?---Sorry, please don’t - - -

I didn’t take you – no, I didn’t take you to be doing that?---Please don’t. It’s not – it’s meant as a general principle that applies to any government.


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I think I took you to say so and I just wanted it - - -?---Sure.

That to be clear. But the – the cost of ministerial criticism of his or her own staff is potentially to lower the morale of those staff?---Undoubtedly.

Now, in the youth justice space - - -?---And I will rephrase that, undoubtedly if – if we are talking about honest mistakes.

Yes. Alright. Now - - -

COMMISSIONER WHITE: What about incompetence, Mr Elferink?---Where incompetence leads to gross negligence or criminality then it was always my position that, particularly in the instance of criminality, that be investigated.

Well, yes. That’s a very extreme end. I’m really just using incompetence as not up to the job?---If the person was not up to the job, then I would turn to the professionals in my department – the heads of the department to determine whether a person was competent or not. I was always very cautious not to involve myself in the hiring and firing of public servants, and no Minister should be.

MR MORRISSEY: Just to pursue that a little further though, I think you’ve indicated that you really – and you’ve indicated that you made it clear to staff under your purview in youth justice – that applies therefore to the Commissioner, and the senior managers under his direction, but extending down to the staff on the floor and the actual youth justice workers; is that correct?---Yeah. Look, if I saw something that concerned me I would raise it with the head of the department, whosoever that departmental head should be.

I understand that, but could I – just to – I am seek to get specific. In fact, because you raised it here in the Commission, you made clear your public stance – when I say “public”, as broadcast to your workforce – was that so long as their conduct remained on the right side of criminality or gross negligence, you would support them; is that correct?---Yeah, and the reason I use the term “gross negligence” and I need to make that clear - - -

That’s what I’m about to come to, yes?--- - - - is – is simply this, is that there is a thing called honest and reasonable mistake which still may fall within the domain of negligence.

Alright?---And I encourage staff to do their best and if that led to mistakes, then – then I, as a general principle, would support them. Once again, it would have to be on the merits of the matter before me.

I just wonder if we could have supplementary tender bundle of 18 April at tab 420, there’s an email there which I would like to show to Mr Elferink. I can provide – if there’s a difficulty about that, I can provide the numbers. That’s it. That’s fine. Here, you have a – an exchange between yourself in August of 2014. It’s following


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shortly on the – on the heels of the – might be described as the tear gassing incident which we will come to in detail later. But here you’ve indicated, in reply to a letter from a senior prison officer, you’ve said to him:

This is my benchmark. If you act in good faith, and remain on the right side of gross negligence or criminality, I will support you.

And you’ve gone on to say Corrections is a tough gig?---It is.

Now, so that is a – there you’ve indicated to the Commissioners your general stance, and that was a stance that you reiterated specifically to individuals when they saw fit to engage with you?---I said it often.

Yes. Very well. Now, I think the learned Commissioner put a question to you: what about incompetence? Gross negligence, to lawyers anyway, connotes a fairly extreme version of negligence which – it has the connotation of a failure to turn your mind to something that was centrally – to which you – with which you were centrally concerned. In other words, a negligence that’s not merely accidental or, as you’ve characterised, an honest mistake. What did you mean by gross negligence?---Precisely that. I mean, I knew I wasn’t talking to lawyers. I never anticipated that the legal definition of gross negligence necessarily would be applied. If a person was acting in good faith and they erred, then I was happy to support them – if they were acting in good faith. And that was essentially the thrust of what I was – was trying to communicate. I wanted staff to do their job, and be engaged with their job without the fear of constantly being overseen and reprimanded. For example, this particular email wasn’t appropriate. It shouldn’t have come to the Minister in the fashion that it did, but you make judgment calls to humour people, and in terms of letting this guy know that he is supported in the job that he was doing, I was happy to do so.

I tender that email.

COMMISSIONER WHITE: Just having a little bit of a problem with that supplementary tender bundle. That’s of 14 April.

MR MORRISSEY: 18th, I believe. 18 April. Exhibit 311 is the list.

COMMISSIONER WHITE: Yes. What’s the tab number? Because we’re going to go up to 145E.

MR MORRISSEY: 42D, capital D.

COMMISSIONER WHITE: 42D.

MR MORRISSEY: Yes.


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COMMISSIONER WHITE: I think we – the transcriber and I both misheard you, so that’s alright.

MR MORRISSEY: I do apologise.

COMMISSIONER WHITE: So that’s alright. Well, now we’re fine thank you. So that’s 311.42D.

EXHIBIT #311.42D EMAIL FROM MR ELFERINK TO SENIOR PRISON OFFICER

MR MORRISSEY: Again, just because we’re on this – sorry, Commissioner.

Just because we’re on that document there, you said in a sense you were humouring the individual who wrote, but could I put to you that perhaps you’re not doing yourself justice there. What you were really doing was attempting to provide a bit of moral leadership?---Yeah. Look, bearing in mind I was the Minister for a number of departments, this quote and this line was used across all of those departments because the – particularly in child protection, when I took up child protection there was an entrenched mentality which I think was seriously undermining the capacity for the department to be as responsive as it possibly could have been, by virtue of the fact there had been a culture of cascading blame down through the system to the front line.

Yes. Just the final structural thing that I need to take you to is just some questions concerning the public service’s responsibility to you?---Yes.

Now, we’ve already been to your accounting to Cabinet. Now I need to turn to the question of how your department, in particular with respect to youth justice, accounted to you. In effect, as a Minister, you comply with your Westminster duties by having proper lines of communication with your subordinates going through, in this instance, the Commissioner; is that correct?---Yes. Also other lines of checks and balances outside of that hierarchy that you describe, but ultimately the departments do report through the chain of command.

And what I’m suggesting to you is it is absolutely incumbent upon you as a Minister to ensure that those lines of communication are functioning adequately?---What I would suggest is that as a Minister I certainly made sure that when I was speaking to my CEOs and sought reassurance that those lines of communication were open, once again it wasn’t for me to step into the Department and then do a due diligence on those lines of communications. That’s why you hire professionals such as departmental CEOs to make sure all of that is being done and that the requirements of government are being met.


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But although you rely upon the CEO to ensure that the due processes are in place, nevertheless you are aware that that – apart from the extra sources of information to which you’ve referred which we haven’t gone yet, you’re aware that that – that those lines of communication are the life blood by which you understand what is occurring in your department and you therefore account to it, both in Parliament and outside to the public?---Yes.

And you’re also aware, aren’t you, that because – if you have a CEO who is extremely busy and spread across many portfolios, that it falls to you to encourage and to maintain vigilance as to the effectiveness of those reporting lines?---Perhaps your assertion is in reverse. Each CEO was in charge of a single portfolio. As the Minister, I had a number of portfolios and I return to each of those CEOs in that particular portfolioed area to say to them, “Make sure that the lines of communication are open.” In fact, it was a given. It was part of – a fundamental part of their job. It’s not for a Minister to then follow up by doing due diligence on the Department. That is why one pays and relies on CEOs.

Yes. Your understanding of the duties of senior public servants, both Mr Middlebrook and others, was – I won’t take you to each of the provisions, but if you – feel free as one experienced in the area to note that there’s a context that’s being missed, and point that out to us and we will see if we need to explore it, but the public servants – the responsibility to yourself of public servants was in part governed by the Public Sector Employment and Management Act; is that correct?---Yes.

That’s – that Act had a section. In fact, it is section 5F which contained a “performance and conduct principle”?---It is not an insubstantial Act, but that’s a component of it.

And it is – certainly, this is – I really want you to comment functionally as – that you understood?---Yes, in other words - - -

.....?--- - - - the legislation creates the framework for the passage of information.

The officers had the duty, though, to objectively – to act and carry out their duties objectively, impartially, professionally and with integrity; is that correct?---Yes.

And in the Northern Territory there was – no, I won’t take you to the breach of discipline. In the Northern Territory public service code of conduct there were provisions, and perhaps if that could be brought up on the screen just briefly, that is exhibit 218.001. There are just some provisions here that I need to put to you as a background to some of the questions. Page 3 and then we will go over to page 4?---Okay.

Now, there’s a section there, Support to Government of the Day and that provided that the public service officer was obliged to provide full support to the government


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of the day, regardless of which political party was in office?---That’s 10.1, that’s correct.

Yes. Thank you. Notwithstanding that requirement to provide full support, 10.2 required that a public service officer was responsible for providing to government advice which is frank, independent, based on accurate representation of the facts, and as comprehensive as possible; is that correct?---Yes.

And that included setting out the advantages, disadvantages, costs and consequences of the available options and, where appropriate, recommending a particular course of action?---That’s correct. And, the context of that, I read Cabinet submission.

Yes?---As a general principle. The costing of policy recommendations generally found their way into Cabinet submissions.

Yes. Could I just ask you this: what’s the interaction between 10.1 and 10.2? In other words, are senior public servants encouraged to comment upon government policy, or are they limited to commenting upon the implementation, if you like. The mechanics of that or the operational matters?---There is a blurred line that can be somewhat subjective, but ultimately if government has set a policy position, public servants would restrain their advice to within the domain of that policy position, as a general principle.

Yes. Now, where – now, to take as an example of that, the – your party upon election had indicated on a number of occasions that it wished to pursue what was broadly termed a “tough on crime” policy; is that correct?---Yes.

It was reiterated before the election, during the campaign in 2012?---There were a number of policy announcements which dealt with criminal issues, yes.

That was one, wasn’t it?---The – it was more specific. I mean, we certainly were happy to identify that we had no problem with holding people who engaged in criminal conduct responsible for and accountable for their actions. And then we made a number of policy announcements in that space which, upon election, were enacted in the Parliament.

Yes. Now, I’m going to come in a moment to what’s connoted by the term “tough on crime”, but was the issue of proceeding with a – one might say a tough on crime policy, within the youth justice space, was that a policy that you regarded as contestable, in other words a policy on which senior public servants could be heard in advising you whether to pursue it and how to pursue?---More to the point how to pursue it, but in terms of the juvenile context one of the things that I would urge people to remember is that when things like the mandatory sentencing in relation to assaults was introduced, the juvenile domain was specifically excluded. I was mindful of those particular issues and remember speaking to a number of public servants about those particular issues, as well as my colleagues.


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COMMISSIONER WHITE: I’m not sure whether your answer is yes or no, Mr Elferink. The question that was posed: did you regard issues relating to youth justice as contestable, notwithstanding the public pronunciation of tough on crime?---Yes. I always expected full and frank advice, yes.

MR MORRISSEY: And in particular, the – I put to you – it was my phrase and not yours, a tough on crime policy, but that requires some elaboration, doesn’t it, because you did not have a single policy document that articulated tough on crime. Rather, it was a stance that coloured many specific policies; is that correct?---That would be a more accurate way to describe it, yes.

Thank you. We will come to tough on crime in a moment. Just in terms of – so what you would say is the implementation of tough on crime initiatives within the youth justice space, you would say, were not contestable in the sense that you were going to proceed with tough on crime measures, but it was contestable in the sense of how you did it?---Yes. I always invited observations, comments and full and frank and fearless advice from my senior public servants.

If I can come to the crunch about that topic, we heard from Mr Middlebrook yesterday and he indicated he didn’t feel constrained in offering advice concerning tough on crime policies. He felt he was able to be full and frank in advising you .....?---I encouraged it not only from Mr Middlebrook but from all of my CEOs.

But, specifically with respect to Mr Middlebrook, he did communicate to you what he had to say about initiatives which had a tough on crime flavour about them - - -?---Yes.

- - - within the youth justice space?---Yes.

Alright. Thank you. And 10.3, finally, could I just point that to you. Public sector officer:

…is also responsible for carrying out decisions and implementing programs promptly, conscientiously, and with full regard to government policy.

Now, what that section requires is that, once the advice has been given and the decision has been made, the duty of the public servants is to proceed with it?---Precisely.

That’s how you viewed it?---Yes.

Yes. Thank you. Thank you very much. Now, I just want to turn to a couple of issues concerning the youth justice space generally speaking. In broad terms, you were aware – sorry.

COMMISSIONER WHITE: I know that we seem to be in and out a bit, but it is half past 11.


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MR MORRISSEY: That was just drawn to my attention then, and I’m content – I will be guided by the Commissioners, but I’m content to seek that we have a short break now.

COMMISSIONER WHITE: Yes. That seems a good idea, if you are turning to a new - - -

MR MORRISSEY: Yes, we are.

COMMISSIONER WHITE: We will take a 20 minute break, Mr Elferink?---Thank you, ma’am.

ADJOURNED [11.29 am]

RESUMED [12.01 pm]

MR MORRISSEY: Thanks.

Mr Elferink, I just want to turn reasonably briefly to some other matters of general principle. In dealing with young persons under the purview of youth justice, you were aware that there were applicable United Nations standards which were – which were relevant to the field?---Yes.

You were familiar broadly with the Convention on the Rights of the Child and with the Beijing Principles concerning youth detention?---Yes, I was aware of it.

And at one point in your – at one point between 2013 and 2015 you had the benefit of Ms Cohen being employed as the direct subordinate to Mr Middlebrook who was well familiar with those principles?---Yes.

And also was on the AJJA, A-J-J-A, management and in fact chaired that committee?---Yes.

Alright. And it’s also the case that you personally engaged in advancing what you hoped to be the ratification of the OPCAT, optional protocol on the - - -?---Yes.

You took an interest in effecting that yourself?---The effect of OPCAT is to get international inspectors into your place of detention, yes.

Yes. And so you – I think in fairness to you, it should be said that you actively sponsored that while there was some hope that the Commonwealth Government would bring that about?---At the time that I brought that to Cabinet, and ultimately had Cabinet approval to bring it before the House, there was no indication from the


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Commonwealth that I was aware of that they were going to step away from – from the ratification of the protocol.

Yes?---I could stand corrected on it, but I had no indication myself.

That’s okay. But anyway, the point was this: you were engaged and interested with those standards and you, in fact, when it came to OPCAT you personally sponsored it?---Yes. And left the bill sitting on the table for three years in the hope that it would be ratified.

Yes. Alright. You would agree that the effect of the international instruments was that, when it came to the question of actual detention of youth, bearing in mind the international instruments are quite flexible about the age group of what youth is and it has a number of generalities that exist, but that the rehabilitation of the young person in detention was the paramount consideration in all of those documents?---Yes. The – if memory serves me, the Beijing Protocol was about 20 payments long and there are a number of, if memory serves me, commentaries in that document in relation to the duties of government.

Yes, there are. Now, it was also apparent to you that adult sentencing concepts such as – which you’re familiar with too, because of your other responsibilities, such as general and specific deterrence, denunciation and so on, did not apply automatically in the juvenile justice space, either in sentencing in courts or in the way in which young persons were dealt with in detention?---The Youth Justice Act contains a provision which means that incarceration was a last resort, which by implication would have the effect that you’ve describing.

Well, it’s more than that though, isn’t it? Because adult sentencing regimes where there isn’t mandatory sentencing are also subject to that, that prison is the position of last resort?---It’s certainly not described in the same way that it is, as far as I’m aware, in the Youth Justice Act. The Youth Justice Act captures the notions of what you were talking about in relation to the Beijing protocol.

Yes. But did you regard – in adult Corrections, you’re aware that deterrence is a very important consideration in sentences?---Yes, it is.

But that’s not the case when it comes to youth detention dispositions, is it?---No.

In fact, detention is not for deterrent value; rather, it contains two, if you like, sentencing considerations: protection of the community and the welfare and rehabilitation of the young person?---That’s right.

Is that correct?---Yes.

And protection of the community is not a consideration which automatically dictates a longer or even an immediate term of imprisonment at all. Protection of the


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community also involves notions of returning the young person to the community in a fit and potentially constructive state?---Yes.

Is that correct? Now - - -?---I would go so far as to extend that that’s part of the consideration of the adult regime as well.

Yes. I think that’s a fair point to make, but with respect to those issues you’re aware that the – I won’t take you to the provisions, but we can locate them if needs be and if you feel there’s a ..... context just say so, but one of the issues raised in the Beijing principles was that the training of staff was a matter of great significance?---Absolutely, yes.

And the training of staffs with the – training of staff with the ability to discharge the security component of their role, but also if you like the programs and educative side of their role, was of great importance?---I would agree with that, yes.

And as a matter of reality you also regarded those considerations as very important with your youth justice staff?---Yes, absolutely.

And that there were significant dangers in having an ill-trained or – an ill-trained workforce whose morale was low?---I agree.

Agree with that? That was a danger both to the staff themselves, in terms of their wellbeing, and also to the young people that they were charged with looking after in the detention setting?---I agree.

Now, could we turn now to the – the issue of training. I’m not going to take you through a chronological step by step of your entire period as Minister but I’m really focussing now on the issue of training and how that came to be on the map. In September of 2013 you became aware of a report – in fact, it appears you commissioned a report – into the Banksia Hill difficulties that occurred in the Banksia Hill Detention Centre in Western Australia?---I was aware of the issues at Banksia Hill, commissioned by my department or me, it doesn’t matter I suppose for the line of the question, but yes, I was aware of the issues at Banksia Hill.

Can we just go please to the transcript of Ms Cohen’s evidence at 2328. 2328, can we just – so if you look at line 33 I think – the part that I take you, this is evidence given by Ms Cohen recently?---Yes.

And she said the Banksia Hill, she was asked about the Banksia Hill Report and I put to her, “Because you thought there could be some business – “ I think it’s maybe an error there, but:

You asked Nobbs-Carcuro to report to it?

And Ms Cohen said,:


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No, that came directly from the Minister and the Commissioner.

So that’s commissioning the summary of this report. She ascribes that to yourself and Mr Middlebrook. Do you agree that that is the case?---My memory of it – and I’ve got to say this is, what, four years ago now, but my memory of it was that it was raised by Mr Middlebrook with me and I said, “Do what you have to do.”

Yes?---I suppose that that would be considered to be authorisation for the purposes of this conversation, yes.

Could we just have that report now on the screen. That’s exhibit 211.010. I’m going to take you to some aspects of this report and then I’m going to ask you for some comments on that and could we go to, when we get there – sorry, I will just wait for that to come up on the screen. So 04 – it was annexure 10 to Salli Cohen’s statement. That might assist. Thanks. Might we please go to – two pages on to page 0441. Now, the findings – this – what we’re taking you to is to the 2013 review findings and this sets out some of those findings. Now, if you look at the bottom there, these are matters that were raised. Firstly, you see that there’s reference to the Banksia Hill didn’t have a clear operating philosophy?---Yes, I do. A series of bullet points at the bottom of page 3.

Yes, alright. You note the second dot point, “Key rules governing its operations were out of date.” Just – perhaps I will go point by point. With respect to – to the Don Dale Centre and Alice Springs as well – sorry. Sorry, we will just proceed through these. So you were aware that there had been an identified shortfall in a clear operating philosophy - - -?---Yeah, look - - -

- - - in your institution?---My memory of this is, from what I understand this is a memo that’s gone from Ms Cohen to Mr Middlebrook or Ms Nobbs-Carcuro to Mr Middlebrook. I don’t recall specifically receiving information in relation to Banksia Hill. I was aware of an incident there, and that there were problems. Mind you, I will go so far as to say I knew there were – there were issues of concern to me inside the Don Dale environment.

Yes. Well, that’s what I would like to do?---Yes.

I appreciate that you have agreed that this report be produced, and that – the fact that you agreed that it be produced means that I’m going to ask you about the conclusions that it reached and whether you were drawn to – whether this report was drawn to your attention in precise terms or not, the issues that were raised ever of relevance to the line of questions I’m going to ask, so I will ask you to comment on each issue?---My – my attitude to any of my government departments including Corrections is look for ways to improve what you do.

Sure. Well, let’s go through it then. So some of the identified problems at Banksia Hill were, as you were aware, lack of a clear operating philosophy?---Mmm.


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And you were aware that there was – in fact you were trying to address, through the Pillars of Justice program and the Youth Justice Framework, just such a gap in the operating philosophy of youth justice in the Northern Territory; correct?---Yes.

Next issue was key rules governing its operations. That seems to equate to the notion of Standard Operating Procedures being out of date or inaccessible, and you were aware too that at Don Dale and Alice Springs there had been a shortfall in the establishment of up to date standard operating procedures?---At what point? This is a very important question. I would like to ..... carefully.

Well, I mean ..... yes. Okay. Well, that’s alright. I’m suggesting to you that, as at 2013, you were aware that there had been an absence of clear Standard Operating Procedures since 2011?---I was aware in 2013 that I had concerns about the running of Don Dale which as, on the public record, I discussed that on a number of occasions. Whether it came down to specific issues like are the Standard Operating Procedures up to date, that sort of thing, I couldn’t be that specific. But I certainly had general concerns.

Alright. But just to be clear about that, although you can’t be that specific, we’ve heard evidence from Mr Middlebrook that he updated you in detail on the concerns he had about the operation of those premises?---He and I discussed issues from time to time.

Yes. He said – when it comes to what from time to time means, he said it was sometimes daily and in any event frequently per week?---Yes. I wouldn’t – I certainly wouldn’t disagree with that.

Alright. Now, the report commissioned by Ms Cohen concerning the – the issues that had arisen at Banksia Hill – just excuse me – sorry. Anyway, so I’m showing you a document here and you what you say you don’t recall whether this was brought to you or not?---The document itself, no.

Yes, the document itself?---The issues therein, if they were – not necessarily in the bullet point version, but issues in relation to the operation of Corrections as a whole was a matter of regular communication.

Yes?---Between myself and Mr Middlebrook, including the juvenile justice domain or specifically juvenile custody.

Well, let’s move to page 40 – page 0044 of that document, please. Perhaps if we step back to the page before just to have a heading – that will indicate the section. I’m taking you to a section. So you see there’s a heading there Lessons for Don Dale from the Banksia Experience; you see that heading?---Yes.

Just to be clear, it seems evident that you did commission this report in the sense of speaking about it with Mr Middlebrook and telling him to proceed with it?---Mr


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Middlebrook would have raised it with me. I certainly said yes. That would be my expectation of my memory of it.

Okay. And the reason why that would be done is not simply for the academic interest in Banksia Hill, but to see how it applied from Don Dale?---Absolutely.

And here you have a section Lessons for Don Dale from the Banksia Experience?---Mmm.

So I put it to you that you were briefed about this report in some form?---There would have been discussions between myself and Mr Middlebrook about the issues in Don Dale, and whether he specifically referred to Banksia or not – once again it’s four years ago, I remember the incidents at Banksia, but certainly we would have been looking at Banksia for guidance into some of the issues we were facing.

So although you don’t have a specific memory of it, you would say it’s highly likely that you were briefed upon this report; correct?---We certainly would have discussed any way to improve it, so I would expect that yes.

On the face of it, that’s the purpose of the report?---Yes.

It says Lessons for Don Dale from the Banksia Experience?---Yes.

So now just going through these matters. Since we’ve got that heading of Lessons can we go over to the next page 6 of 8, please. Grateful for that. So you see here that issues have been identified, and I look to the dot points at the top, that there was – some of these issues were significant increase in the number of detainees, an emerging growing trend for female detainees, increase in the number of offences being committed, longer sentences, increasing proportion of youth being held on remand, and an increase in the frequency and severity of incidents, attempted escape, and so on. Now, with respect to what – the problems that are listed there, you were familiar with what you were told by Mr Middlebrook of those trends?---Mr Middlebrook certainly raised concerns about the management of detainees in Don Dale. There’s no doubt about it.

Alright?---What I can’t do is create a memory I don’t have, and I don’t intend to.

No, no. It may be that some of the questions - - -?--- .....

- - - jog your memory, and I’m not going to ask you to make one up as you sit there. But I am going to put to you the matters that were raised in this report. So if you look at the dot points below, what has been found is that:

As the experience in a number of jurisdictions has shown, providing suitable infrastructure is important, however, history proves that well designed and maintained facilities will fail if inadequate or hostile human relationships are embedded in the centre’s culture.


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Just stop there for a moment. In fact, you – that was, in fact, your position, wasn’t it?---Absolutely.

That it was no good to build a shiny new prison if you had poor quality people in it?---I’ve always gone and said on the record, on a number of occasions, that places of detention are not about bars, wire, concrete and locks. What they are is about systems.

Yes?---Because if the system is effective and works and you have good trained people in those systems, then – or applying those systems, then the physical structure means less than, necessarily, the systems themselves.

Quite frankly, that was your view when you came into this portfolio in 2012: it was the systems rather than the buildings - - -?---Yes.

- - - that were the primary issue?---And between 2012 and 2014, I was concerned about the systems. There’s no doubt about it.

I’m just going to park an issue. But I appreciate that you have made comments expressing some quite grave concerns about the quality of the infrastructure that existed?---That too, but that’s an aside.

Yes?---And we can come, yeah.

I understand. I just wanted to be clear I’m acknowledging that you’ve made that point, because now I’m going to turn to these issues. So some of the contributing factors identified were – and I will just list these and then ask for comment subsequently: dysfunctional and strained relations between staff and management, staff rostering practices, change in corporate governance structures, no defined organisational focus and purpose, large casual workforce, limited ongoing staff training, lack of professional performance framework, inadequate and inappropriate recruitment processes. And if we could go over to page.

COMMISSIONER WHITE: Just pause for a moment while the next page gets put up. Thank you.

MR MORRISSEY: Thank you. Yes. I shall pause.

COMMISSIONER WHITE: Yes, thank you.

MR MORRISSEY: Your Honour, I issue a standard apology to the transcript writers for going too fast from time to time, which is – I’m happy to be told to slow down if I lose sight of what’s happening. Next dot point, inadequate and antiquated training, reactive model of detainee management, lack of centralised record keeping or data collection, no safety or security audits conducted, lack of recreational activities, limited rehabilitation programs and services within the centre, little or no intelligence reporting. And the conclusion that is reached is:


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As a result, Don Dale is exhibiting many similar signs to those that existed in Banksia Hill prior to its major incident in January ’13. Don Dale is an unstable facility.

Now, I’ve got a series of questions arising from that. Firstly, concerning the dot point matters that are listed there, you had been familiarised with the existence of those problems by Mr Middlebrook already; is that correct or not?---Not to the degree that is described, but Mr Middlebrook would regularly describe concerns that he had particularly with the management of particular individual inmates. I have no recollection, I don’t believe, that that the bullet forms in those forms were ever delivered to me.

Well, I just need to press you about that if I could. It’s apparent from the very terms of the report that it dealt with lessons for Don Dale; correct?---Yes.

And it’s apparent from the commissioning of the – and the direct evidence of Ms Cohen that you agreed to this report being compiled?---Yes.

And you agree that it deals with matters at a fairly high level – it agrees with problems at a fairly high level of – of policy, namely general issues concerning training, general issues concerning staff models, general issues concerning the activities and programs available to the children?---Many of the bullet points still remain within the domain of operational considerations. They weren’t shown to me in the fashion that they are described here. However, as I’ve said, Mr Middlebrook raised on a number of occasions his concerns about management issues at Don Dale. There’s no doubt about it. I agreed with him, by the way.

Well, I appreciate that but you’re speaking at a very general level, Mr Elferink. I’m putting it to you as a positive fact. You tell me if I’m wrong or right or you can’t confirm. I’m putting it to you that Mr Middlebrook raised with you that you had a problem with dysfunctional and strained relations between staff and management. Do you agree with that?---I can’t confirm.

Alright. He raised with you that there was a major issue with staff rostering practices, do you agree with that?---Yes.

I put it to you that he – and just stopping there, you say yes to that one, you agree that staff rostering practices was a very important precondition to the administration of training to the staff group because, if you had a casualised workforce that had rostering problems, it was nigh on impossible to train them?---That’s right, yes.

And you were aware of that issue?---I was aware that there was a casualised workforce and I knew that wasn’t good.

And the reason it wasn’t good is because it produced overworked workers who were ill trained and also difficult to train because of the rostering issue?---Yes, I agreed with that.


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Yes. Alright. Thank you. So I take it therefore, if I skip forward to some of the other matters there, the dot point saying “large casual workforce”, that was drawn directly to your attention by Middlebrook?---Mr Middlebrook raised various issues with me, but going through it in this fashion saying yes or no, I’m testing my memory from four years ago, but can I – if it assists the Commission.

If you would bear with me, I don’t mind you making a general comment, but I do wish to press you on the points here, if I could, please.

MR HARRIS: Might I now rise to object, if the Commission pleases, because I understand my friend wants to use this as a platform to address topics and I have no complaint with him doing that, but the evidence is that this document – according to the witness wasn’t received by him, it’s addressed to Mr Middlebrook. I don’t remember, in any of the five witness statements I’ve read from Mr Middlebrook, Mr Middlebrook asserting that he went through the bullet points in this statement with Mr Elferink. Now, I may be wrong about that, but I don’t recall there’s any evidence to that effect. Now, he certainly gave evidence of having regular meetings, but if the fact of the matter is that this document was not presented to Mr Elferink, then it can’t rise higher than that fact, and using it beyond introducing topics, in my submission, is an impermissible use of it.

COMMISSIONER WHITE: Thanks, Mr Harris.

MR MORRISSEY: I don’t think that’s – I’m committing the sin that’s been identified. I’m putting the topic to the witness and putting to him that that particular topic was specifically raised by Mr Middlebrook. When it comes to point 2 he said yes, and I’m now raising that he – and I then asked why that was of importance, and he acknowledged why it was of importance. I’m now seeking to put to him that subsequent dot point – that matters raised in subsequent dot points, the subject matters, were directly raised with him by Mr Middlebrook on occasion, and that doesn’t have any of the vices that my friend has identified.

COMMISSIONER WHITE: Well, I think the evidence is being received subject to the fact that we’re aware that this document was – is not said to have been given to Mr Elferink. It’s – to use your expression, it’s being used as a platform, but it can’t be used for anything more than that. It gives some context. It may – I think we’re comfortable that we’re not attributing more to Mr Elferink than he is prepared to acknowledge.

MR HARRIS: Yes. If the Commission pleases. I rose at the time that I did because he was, in fact, about to give a wider answer about his memory problems and he was brought back to the document and the document, as I said, can’t rise higher than the fact he never got it.

COMMISSIONER WHITE: I accept that.


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MR MORRISSEY: What I meant to do Commissioners is to bring him back to the topic, not – as listed in the document.

COMMISSIONER WHITE: Not quite sure, actually, where Mr Elferink’s wider statement was going so let’s give him the benefit and let him, if he can now remember - - -

THE WITNESS: In short, I have had hundreds if not thousands of conversations with Mr Middlebrook, Commissioner, while he was Commissioner for Corrections. They raised – ranged across a wide range of topics across the portfolio area and even into other portfolio areas. I have a recollection of the Banksia incident. I have a recollection that – recollection that Mr Middlebrook raised that with me and my simple response was go and have a look, if it’s useful, because I always sought to improve systems where possible, within the resources that we had available. In terms of going through bullet points in a report that I don’t recall seeing, and I’m not sure it was ever brought to my attention, four years after the fact, it’s straining my memory in relation to the fact that I will have had tens of thousands of conversations, read tens of thousands worth of pages worth of material and now I’m being asked to remember bullet points.

COMMISSIONER WHITE: Well, I don’t think you’re being asked. It’s subject matters, actually, Mr Elferink?---Yeah. Okay.

And you’ve demonstrated, of course, that there was one thing that was certainly the topic of conversation, which was training and the casualisation of the workforce, so let Mr Morrissey continue in this vein and you’re managing perfectly well, I think, to - - -?---Thank you, ma’am.

- - - deal with the questions?---Alright. Thank you.

That’s the way he’s hoping to raise subject points.

MR MORRISSEY: I’m grateful, and that is the case. So we’ve – we’ve already dealt with the staff rostering practice and large casual workforce. I put it to you that Mr Middlebrook raised with you, regardless of whether you saw this document or not, that he raised with you in 2013 the issue of limited ongoing staff training. Do you agree that he did so?---I don’t have a specific recollection of that, but once again these – he would have taken the attitude of operational issues. I can’t put words in Mr Middlebrook’s mouth.

No?---I have no specific recollection of him raising that particularly.

Right?---However, having said that, the issue of staff training was something that was of concern to me.

In 2013?---In 2012.


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Yes. And likewise, if I could go to the topic over the page at the top, inadequate and antiquated staff training, that under the heading of Training was a matter of concern to you in both 2012 and 2013?---There were – I certainly had a number of concerns and that was included in my concerns, yes.

Yes. And you discussed that – I appreciate you’re saying you can’t recall this particular document – you discussed those matters with Mr Middlebrook?---The issues, certainly.

Yes. Alright. You also discussed with Mr Middlebrook, I put to you, the lack of professional performance framework?---No. I have no recollection of that necessarily. That particular matter.

Alright. When you say you have no recollection are you saying you didn’t discuss that or you don’t recall?---I just don’t – I don’t recall.

Could I ask – this will assist me, and I’m not stopping you from adding anything to it, but there are three options that are of value, and there may be an elaboration that you do recall, you don’t recall, or you might say, “No, I didn’t.” You might actually – there might be somewhere you say, “I really didn’t discuss that matter”?---The only - - -

Please identify when you’re saying, “I didn’t discuss”?---The only reason I I’m not absolutely saying I didn’t discuss is that in the process of many, many conversations I would be struggling to remember specific topics raised on a specific time or date.

Yes?---I have no recollection of this particular topic being raised. I certainly have a recollection of issues being raised by Mr Middlebrook with me.

Yes?---And we trying to find – well, him trying to find solutions, particularly, to them.

Okay. Well, using this document in the spirit that I have been, as a list of topics, you were aware – or Mr Middlebrook – I put to you that Mr Middlebrook raised with you the issue of a reactive model of detainee management?---Once again, I have no specific recollection, but I was – it would have been one of the areas – in fact, was one of the areas that I was concerned about yes.

The lack of a centralised record keeping or data collection system. I put to you that was a matter raised by you, with you by Mr Middlebrook around that time?---No. The answer to that question, as far as I knew, IOMS was – covered the field in relation to juvenile detainees as well.

So you did not regard there as being a problem by way of lack of centralised record keeping?---No.

Okay.


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COMMISSIONER WHITE: Mr Elferink, were you generally interested in the issue of having good records within the departments generally for which you were Minister, and there were many of them, of course?---Yeah.

Did that seem to you an essential tool for good policy development?---Yes.

For evidence based decisions, for example?---Certainly. Records are the heart of government. That’s how they measure their own successes or otherwise going forward. The maintenance of those records is a matter of policy. The oversight of those records is a matter of operational input. So - - -

Of course?---Policy is, we have a record system, answer IOMS. From my perspective in that case, well, I’ll assume that IOMS is being properly managed. I don’t – I don’t have the time or the capacity, or I think it was even appropriate for me as a Minister to do due diligence on the management of the IOMS system.

MR MORRISSEY: Except if he told you that there was a problem; correct?---If he told me there was a problem then I would ask him, “Well, what’s your suggested solution?”

What you’re saying is he didn’t tell you on this topic of the lack of centralised record keeping or data collection?---No.

Let’s move on from that. I put it to you that in that period of time Mr Middlebrook told you that there had been no safety or security audits conducted. Do you agree, disagree or you don’t remember?---No, I – I – I disagree.

I put it to you that he told you that there was a lack of recreational activities within the centres?---Specifically – I don’t recall him raising the issue with me, but it was an observation I would agree to by my own visitation to Don Dale and the Alice Springs Youth Detention Facility.

Well, since you noticed it when you went to those centres you would agree with me about this: it’s just inevitable that you did discuss that with Mr Middlebrook?---Yes. At some point that would have been discussed between us, but in terms of specific reference to a bullet point in the Banksia Hill report, I can’t recall him raising it in that context.

I understand that. The last two I wish to raise is I put it to you that Mr Middlebrook indicated to you that there were limited rehabilitation programs and services within the centre?---No, he didn’t. In fact, he was anxious to make sure that those – those – those services were there, and a number - - -

I know he was anxious to. Sorry, I talked over. You continue?---And a number of those programs he rolled out.


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Yes, he did, but didn’t he also draw your attention to the fact that notwithstanding what he was trying to do there was still limited rehabilitation programs and services within the centre?---Not specifically.

Was your state of mind that there were adequate rehabilitation programs and services within the centre in 2013?---Specifically in 2013, I can’t give you a date, but I was concerned about a number of issues inside Don Dale and rehabilitation, particularly education programs, were of concern to me. Mind you, we were running the schools.

Yes, you were running the schools?---There was also a program that I insisted upon, which was called the SEED program, which was essentially a juvenile detention variation on a Sentenced to a Job principle that was being applied in the senior – in the adult Corrections environment.

When did the SEED program come into existence?---Would have been around 2013, but I would have to double check that.

How many children took up the SEED program?---I’m not sure. I’m certainly aware of one that initially went in. Whether any were followed up with, I’m not certain.

Are you aware of any more than one single child that participated in the SEED program ever?---Once again, I’m uncertain. No, I’m not aware.

Did you follow that up as to how the SEED program was operating?---A couple of times, and I was told that the SEED program was in place.

Yes. But in terms of actual use of that program by children, you’re aware of one person using it, and did you follow up to find out whether any more than one had actually availed themselves of the program?---I’d ask the question. I can’t recall what the answer, but I – so the answer is no.

Did you express yourself as being proud of the implementation of the SEED program?---Yes.

Did you list it in achievements?---I was certainly proud of the fact that we were rolling out programs in the – in the juvenile detention environment.

But the question was did you list it in achievements, either in annual reports or any documents of your own – I will take you to some after lunch, but just at a general level did you express yourself as having been proud of it and proud of its operation?---I implemented it. I don’t recall speaking about it at any great length in the public domain, certainly not in the way I attended to Sentenced to a Job.

Yes. Well, all right. Leaving aside that one child that was educated under SEED, the question I had for you was that in 2013 - - -?---Can I correct myself there.


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Of course you can?---The education component of the SEED program, of course, captured the notion of these kids being in school. When these young offenders were in detention, they were all required to go to school on days that they weren’t otherwise occupied on things like going to court.

I’m sorry, you’ve explained why that was – I’m not criticising, but just explain .....?---Well, the answer is that many, many young offenders in the system will have been subject to the SEED program in the sense that the E for education was there and operational.

Well, you were separately required to provide education services for the children, weren’t you?---Yes.

Yes. There was education – the budget for the SEED program came from which - - -?---I can’t recall.

Well, did it come from Corrections?---I can’t recall. I don’t remember the particular line item which captured the SEED program.

I might park that issue. I will just raise with your counsel a matter about that, but just as a general thing could I just raise this: you’re not in a position to answer without notice budgetary questions; is that a fair point?---Yeah. And at that level the line items don’t even appear in the budget. They are even further down in the system, so - - -

I think – thank you. And I won’t - - -?---I will need to see documents.

I won’t press you. No, no, it’s alright, there’s some questions you can be asked and some I just won’t trouble you with. The final issue I wanted to raise with you was the last dot point there. I put to you that Mr Middlebrook told you there was little or no intelligence reporting within the centres. Do you agree with that, disagree, or can you not recall?---No, I don’t agree with it.

Alright. Now, can I just raise this with you. This report which is in front of you now comes to a fairly strong conclusion, doesn’t it? Just looking at it there:

As a result, Don Dale is exhibiting many similar signs to those that existed at Banksia Hill prior to its major incident of January 2013. Don Dale is an unstable facility.

Now, you can see that that’s been included fair and square and rather fearlessly in that report. Do you agree with that?---Yes. Bearing in mind, of course, that the report was to Mr Middlebrook. I’m not – I don’t have any recollection of seeing this report.

Alright. Okay. But that’s not the question. The question is: I put it to you that that conclusion was drawn to your attention, pursuant to the duties of Mr Middlebrook


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under ministerial responsibility and accounting to you?---Not in the way that they are displayed here on the screen in front of me.

Alright. Well, leave aside the questions of style. It was made very clear to you by Mr Middlebrook, following the production of this report, that Don Dale was exhibiting similarities to Banksia Hill; correct?---Mr Middlebrook certainly expressed concerns about Don Dale on a number of occasions.

Yes?---Without necessarily specific reference to Banksia Hill.

When you say “without necessarily”, are you saying that he did not bring the similarities between Don Dale and Banksia Hill to your attention or are you saying you can’t recall whether he did or not?---He spoke to me about Banksia Hill and I authorised him to get this report done. I encouraged him to do so, if memory serves me. Specific conversations in relation to specific bullet points within documents that I haven’t seen are challenging for me to recall. I do remember conversation was Mr Middlebrook, and I make no secret of the fact that he had concerns, and that I had concerns. But to seek answers from me on such a level of specificity after four years is – is – makes it difficult for me.

It’s testing your memory?---It is testing my memory.

I understand that. Alright. Thank you. Now, can we just go to page 45 of that. Sorry. That’s the one we’re on. Yes, I made a mistake. Alright. There’s a conclusion there which I’m going to ask you to comment on. Whether or not he told you that, I’m going to ask you to use this as a platform for the question. You see the comment there was:

The Banksia Hill and other jurisdictional experiences show that where instability exists improvement will not come from target hardening a centre (e.g., installing bars, grills and fences) or toughening staff responses. A holistic approach that recognises security and safety are underpinned by an active rehabilitation regime and positive relationship between staff and detainees is required.

Now, just familiarise yourself with that. That was your position too, was it not?---Yes.

So it’s highly likely that you did discuss those notions – I appreciate you don’t recall the document – it’s highly likely you discussed those notions with Mr Middlebrook; correct?---Yes.

Alright. Thank you for that. In that period of time, you were aware that a budget submission was being worked upon by the – by first of all Mr Caldwell. I’m not sure if you knew – do you recall Mr Caldwell?---Yes. Generally, vaguely, yes.


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I understand he’s some steps removed?---Yes. In charge of Don Dale if memory, serves me.

Yes?---I’ve met him on a number of occasions with my various visits to the institution.

So we’ve heard evidence from Ms Cohen about the development of a budget submission over – from September 2013 through to approximately March of 2014. We have some documents that we can show you in a moment. I just ask you to think back?---Yeah. Madam Commissioner, I seek some guidance here and I’m very cautious of this particular issue. I suspect you know where I’m going to come from.

COMMISSIONER WHITE: I suspect you do too.

MR MORRISSEY: Can I assist. Sorry, perhaps I can interpose here. I think the questions won’t get you into that area, but thank you, and you’re to be encouraged to intervene at that point?---Well, it’s - - -

I’m not going to quiz you about the internal – I’m not going to quiz you about within Cabinet discussions or the confidence of Cabinet confidential documents at this point, but rather about discussions that you had with Mr Middlebrook and/or Ms Cohen?---The problem I have – and look I’m anxious to actually answer the question so I’m just mindful of my ministerial responsibilities just – as well. The determination of whether Cab subs got up or got past me or not was in part guided by other conversations I would have had with other Cabinet Ministers. Whilst I will - - -

COMMISSIONER WHITE: Sorry. I think you’re probably getting way too far ahead here, Mr Elferink?---Alright. Well - - -

We’re talking at the lower – with the lower level of the Department over, as we’ve heard. over a very long period of time working up a submission?---Sure. I’m just – I just wish to be alive to that issue, Madam Commissioner and I’m happy to answer questions - - -

Yes?--- - - - until such time as somebody says no, that’s the boundary.

If it gets too far and you can be fairly confident that both your counsel and the Solicitor-General are poised and ready if it goes too far as well?---Forewarned is forearmed.

MR HARRIS: Poise has never been a word used for me, Commissioner, but thank you.

COMMISSIONER WHITE: You should take every accolade you can, Mr Harris. With all of those concerns floating around, Mr Morrissey, perhaps you can assuage Mr Elferink’s concerns by telling him you’re not going anywhere near there.


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MR MORRISSEY: I will. I’m actually asking you questions about the development of the Cabinet submission within your department, rather than what was discussed when you actually got to put a submission to Cabinet; okay?---It’s because of the way the thing’s bolted together and what happened when, I have to be very cautious.

Yes. I understand that. So let’s see how far we can go. And It may be that you can answer a question but you can say, “Look, the answer to the question is yes, but the reasoning process”, or, “No, but the reasoning process I feel uncomfortable discussing for that reason.” And that will probably .....?---Perhaps I will ..... feel my way through it until such time as counsel is on their feet.

Let’s do that. So in any event you were aware that a Cabinet submission was being worked up in the second half of 2013 relating to youth justice; correct?---Yes.

And that in the course of that – of that - - -?---Pause there for a second. There were many Cabinet submissions that were worked up in that period which related in one way or another to youth justice, but I think I know the one you’re referring to.

Yes. Could we just have on the screen, please, exhibit 211.010 and we will go to page 47. This is a thing called the Dolphin Report and we’ve heard – and your Honours, this is at paragraph 130. So as the Dolphin Report comes up, just – you can disregard the screen for a sec while that comes up. I’ve got some preliminary questions. So we’ve heard from Ms Cohen at paragraph 130 of her statement that the Minister’s chief of staff – hang on, this doesn’t look like the right thing. Sorry, excuse us. We will just make sure the right document comes up. Look, whilst that’s being done I will put the preliminary question: Ms Cohen testified in her statement that the Minister’s chief of staff directed that a report that has come to be known as the Dolphin Report be commissioned and this was a report compiled to ensure – this was in the context of whether you wanted to implement the Carney Report. You recall that was a report that came .....?---I remember the Carney Report. It was done as a collaboration between Ms Jodeen Carney and Ms Salli Cohen.

Yes. That’s right. And the Carney – Ms Carney had been a member and a leader of your party previously in opposition. Having retired from that position, she was commissioned by the former Labor Government to perform - - -?---Yes.

Produce the Carney Report. That had a variety of recommendations in it?---There were nine recommendations - - -

Yes?--- - - - from memory. She deliberately created or drafted the report in such a fashion as they were general principles rather than necessarily specific recommendations.

Yes. Well, I see you remember accurately about that. And with respect to the Carney Report, what I’m suggesting here is that you asked – your chief of staff asked Ms Cohen to have the Dolphin Report done to see whether frontline staff and the


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non-government organisation sector were still supportive of the Carney recommendations. In other words just as a part of rational governance, you wanted to see is the Carney Report still relevant, in effect?---Yes. And moreover we were working up the youth justice policy of the Government at the time, so that was a guide to enable us to go down that path.

Yes. And what you were doing, and just – you’ve anticipated my question, thank you, and part of the thinking here was that you would identify a gap in, if you like, an overall strategic direction that had already been identified in Carney and you were keen to develop the youth justice framework so that there was a sensible strategic division to which lesser decisions could be aligned?---That would be accurate, and that would also sit under the umbrella of the overall Pillars of Justice structure.

Yes. I understand that. Now, before we get to this – I want to step back and just turn to your approach to Corrections – to youth Corrections. So this is a more general question about your attitude to it. We’ve heard from Mr Middlebrook that you and he each shared an interest in diversion away from the youth justice system and an interest? Diversion away from custody, where that could be legitimately achieved?---Diversion away from the youth justice system, not necessarily.

I should – I should qualify that .....?---I think that’s not - - -

No, no. That’s okay. Let me rephrase. Diversion away from the youth justice system in the sense of the criminal courts and the criminal jurisdiction?---Yes. And demonstrated by the maintenance of programs like diversionary programs as well as the introduction of the Flinders boot camp model.

Yes. Well, with respect, there’s – you have a number of achievements in the area of Community Corrections and also relating to youth justice. I’m not going to rehearse them here, but it should be acknowledged that you said you were interested in the area and you demonstrated that over the years?---Many of the issues came up in that time were not only generated internally through what Mr Middlebrook raised with me, but the Chief Magistrate - - -

Yes?---Ms Hilary Hannam was – one of the most pressing issues I had to deal with was the dungeons that were the court cells at the lower court here.

Yes?---That was a three-year exercise.

Could I defer discussion of that. I think you will be – you may be asked questions about that?---Sure.

And possibly the Commissioners might as well, about that side of things. So it’s not irrelevant, but just for our purposes now - - -?---Sure. But it’s – in terms of the supporting the idea I wanted to see reforms in the space, yes.


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Yes. But what was your vision as to the role that detention played in the rehabilitation of the young persons who found themselves there? And that question, what was your vision of the role, firstly, with respect to sentenced prisoners, secondly, with respect to the large number of remand prisoners, short and long term, what was your vision about how detention was supposed to work?---My starting point was to agree with the Youth Justice Act that it was a last resort. However, once they were in the detention system, we could bring to bear such programs and education as we could within the resources that we had available, and we did a number of programs. One of the challenges we faced was the brevity of the average day of a person in custody. So even bringing something like a program like the sex offenders treatment program to somebody who was in custody for remand, or the remand environment for a period of a couple of weeks or less than a week meant that the course was incomplete. And that’s one of the challenge that you face.

So could I just – I’m interrupting you here, and I don’t want to stop you from taking that where you want to go, but it was easier to deliver programs – whether education or out of education hours programs – to sentenced prisoners than to remand prisoners. Is that a fair generalisation?---Certainly.

Alright. And so you had always identified, in fact, from the moment you came in the specific difficulties of providing programs to the – to the remand population. What did you do about that? Was there – did you perhaps launch an inquiry or .....?---I’m not sure there is – I certainly spoke to Mr Middlebrook about it. There is not much you can do about it. If a program has a 10 day life span, or a 20 day life span, or a 40 day life span and the youth is in custody for a period of five days, there’s not much you can do about it, and I’m not sure that an inquiry would give you a better answer.

Did you have a – sorry, I talked over you, go on?---What we certainly did was introduce things like the youth boot camps to prevent kids from coming into the custodial environment in the first place. There’s no time limit on that, because the young offender or potentially young offender in the case of the boot camps is at liberty at that time.

Alright. Let me proceed now, if I could, with this Dolphin Report. That’s up on the screen. You see there the report to the Department of Correctional Services?---Yes.

And my first question is: at the time when this was provided at the end of December of 2013 did you see this report?---No.

Were you briefed upon this report?---I don’t recall, no.

Do you think it’s likely that you were briefed upon it?---Once again, I have to – this is a three-year-old memory – a three and a half year old memory/ I don’t recall seeing the report, I don’t believe I was briefed on it – on the report specifically.

Very well. Then I will deal with it the same way that I did the previous one?---Sure.


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If you recall a particular – it might jog your memory, but if not you can still deal with to the topics. Can we go to page 0056, please. You had here a list of complaints by staff. Just run your eye down that, if you could, under the heading Detention Centre?---Yes.

Just run your eye over it. It may be that it jogs your memory either as to having seen the document or having some of these issues raised with you. They list there – it’s a list, really, of complaints that arose from staff members in the course of this Dolphin Report?---Once again, I’m aware of a number of the issues that the report raises. I don’t specifically recall the report being delivered to me.

Yes. Just on that topic, do you recall that Mr Middlebrook acquainted you with the fact that the report had been done and had raised certain issues?---I recall there was a thing called the Dolphin Report.

Yes?---That certainly was being used to inform the development of policy.

Yes, I understand. Okay. Well, I won’t take you to each and every one for time purpose reasons. As you say, you have no memory of seeing this document. I think it would be oppressive to do it. Just in terms of topics, do you agree broadly speaking that you knew that the Dolphin Report involved canvassing frontline staff, because that was the purpose of it?---Once again, not particularly, but I would have expected that that if you’re doing a staff review that that’s what would happen.

Yes. And as to the specifics that are raised in it, is your answer is: Mr Middlebrook may have raised all or some of those in discussions, but you can’t recall?---Mr Middlebrook was never backward in coming forward in terms of some of the issues that he faced as Commissioner. Whether he made specific references to specific reports at specific times, once again, these are conversations that – I’ve had hundreds of conversations with Mr Middlebrook.

Yes?---And I come to the same conclusion.

Alright. Thank you. Just excuse me. Do you have a reason why it is – if you weren’t shown this document, can you explain to the Commissioners why it is that you weren’t?---I couldn’t begin to suggest why it wouldn’t be forwarded to me. Bearing in mind that many of my CEOs were aware of my – the volumes of work that I was dealing with at the time, perhaps – and it is entirely speculation on my part – that they sought not to overburden me with – with reports, but once again, certainly if issues were raised in the reports, I would have expected Mr Middlebrook at least to raise those issues was me.

COMMISSIONER WHITE: Mr Elferink, what were the maximum number of portfolios that you held at any one time?---It was for a very short period, but at one stage I think it was 14. But I would have to – it was for a very brief moment. I was carrying education, health – God, I can’t remember them all but they were all the big ones plus, of course, Attorney-Generalship and a number of other portfolios.


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And Corrections?---Corrections was there all but for three weeks during a period in January. I was – but that was a very short period, ma’am.

I don’t really wish to be political about this, but was there a shortage of other possible members? It just seems such an extraordinary workload for any one individual – or responsibility load, if you like?---With all due respect to the Chief Minister at the time, he had a political problem in which one of his Ministers not only left, but left the party, and he needed somebody to carry the load for a period of a couple of weeks. So I was actually - - -

Well, a couple of weeks is fine but I had the impression that you had some of these large portfolios for much longer than that?---I had – the challenge was that the portfolios were that they were the hard ones. The list that I gave when I introduced myself, ma’am, was Child Protection, Corrections, the Attorney-Generalship which included, of course, all of the complications of understanding native title and those particular issues, the Health portfolio, as well as having to build a new hospital, the mental health portfolio and the disabilities portfolio which, of course, required the negotiation of the NDIS for the effective outcomes for Territorians. None of those are simple. Designing and building a hospital isn’t simple. Negotiating with a Commonwealth which was – I won’t say hostile, but challenging in the area of the NDIS was – was challenging.

Yes, I’m really asking you not out of frivolous interest, but to put in context some of your answers that you’re giving here?---Yeah. But for this reason the question was: why would someone withhold information from me. The answer is – perhaps I should paraphrase, and maybe I’m reading intention into the question, but there was never anything sinister. I’ve no suggestion - - -

MR MORRISSEY: I don’t think it’s a sinister question, Mr Elferink?---Okay.

And I think you’ve actually answered satisfactorily it to the Commissioner’s response?---Okay. Because – but it is – I stress it’s speculation on my part as to what the motives of other people might be.

Yes. Well, that’s fine, and I won’t press you about the motives of other people. Really, the point is this: what you’re saying is you don’t remember receiving it and you think you didn’t receive it; yes?---Yes. That is correct.

Thank you. Can we please have on the screen transcript 2969. I’m just about to take you to some transcript of what Mr Middlebrook said yesterday, and here Mr Middlebrook – this arises in the context of a discussion about a Cabinet submission. Mr Middlebrook was saying that he was endeavouring to secure, in this budget process – late in 2013, he was endeavouring to secure a figure, apart from the refurbishment of Don Dale, which was varied, he was endeavouring to secure a figure in the realms of $2 million to adopt a new staffing model, a more permanent staffing model, and deal with a casualisation issue, and there’s a question I want to put to you about that. But he also told is – I will just ask you if you’ve read – that


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was a concern that you were prepared to support him in that?---Again, I – I have to be a bit cautious. Yes, I was prepared to support him in that.

Stop there. I’m just referring to your discussions with him here, not what you did elsewhere, okay?---But you understand that - - -

I do. I’m with you. But just – anyway you agree with that as far as that goes. Okay. So now could we just – can I take you to the transcript. What he said was that, in developing that submission, he was given to understand it would assist his cause – the stronger the argument he could put in favour of the 2 million amount, the better chance he had of securing it, again without prejudice to what might have been said?---I would – I would have said that to any CEO repeatedly: the better argument you put up, the more chance you get the cash.

Yes. Okay. So this is what he said, if you now direct your attention to the transcript at the bottom of the page there, he said – if you just read from line 30. Sorry to say he’s verballed you with the word “dude” there. Just read through to the end of the page then you will see the point of the question?---Yes.

Alright. Have you read to the end of line 46 there?---Not to the end of line 46. Sorry, I will keep reading.

Sorry. Yes. Just go to the bottom of that page, please. And then we will need to go over the page?---Just excuse me for a moment.

Tell us when you get to the bottom?---Okay.

We go over to page two nine – yes, at the very top. So you see, up at the top there, what he’s describing?---Consistent with the sort of conversation I would have had with him, yes.

Do you have a precise memory of that particular conversation or any memory of that?---Conversations of that nature were very common, and the money fight was an ongoing fight in Government.

Yes, I expect it was. Anyway, do you recall that he referred to – as a bargaining chip he was going to get the McNamara Report to assist?---I remember the name, the McNamara Report. I certainly would have encouraged him to say, “Look, if you’ve got anything that improves the chances in Cabinet, incorporate it.”

Yes. Alright. Just go to line 25 if you would please, he was asked how much of the bad news that he had – that he was aware of, that he transmitted to you. So the question was:

To what extent did you explain to the Minister the potential ill effects, and I mean at around this time of the budget process, late ’13, early ’14, the


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potential ill effects of maintaining a workforce that was ill-trained or not trained at all, as was the fact.

He gave the general answer:

I think the Minister was well aware of that, and he was well aware of what we were trying to do, and what we wanted to do.

You would agree with that?---Yes.

Alright. He’s then placed a limit on how far he went in detail with you. Look at the next short paragraph?---What line was it again?

So line 30. That’s the next bit. This is where in a sense he draws a line under how – where he stopped going into detail. I put to him:

Did you bring to his attention precisely how, it –

and “it” is the bad training –

how it might affect an individual youth to be subject to potentially ill-trained staff?

And he said:

I wouldn’t have gone into that level of detail.

?---I agree – I agree with his answer.

Alright. Thank you. But although that’s – you would agree with that answer, you would also agree just as a matter of complete common sense that you were aware that complete ill trained staff might produce bad outcomes for the detainees, particularly the disturbed or badly behaved ones?---Yes.

In order to handle such people it was very important to have staff who were trained in the optimal way?---Yes.

Alright?---Certainly as much as resources would allow.

Yes. Alright. Just – I think we may be getting to the lunchtime moment – to the break. Could I just ask you this: in the sense that you – if the money was – I will put a general question: had the funds been available you would have been very prepared to support an augmented staffing model and a much higher level of training than what you were – currently, felt able to afford; is that correct?---Personally, yes, but I’m – I now find myself on the boundaries of – of my concerns. However, I’m in the hands - - -


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COMMISSIONER WHITE: Well, the question was directed to you?---Yes.

You would have been prepared?---Is the short answer, ma’am, but - - -

Not asking you about what any others of your colleagues might have thought?---Yes, yes.

Right.

MR MORRISSEY: Now, in 2014, and again you can keep this at a general level to avoid going to Cabinet, whatever happened in Cabinet, you didn’t get that $2 million for staff training, did you?---It wasn’t in the budget, no.

No. Alright. And we will just leave it at that for now. So in 2014 you became aware – as well as the difficulties with staffing, you became aware of infrastructure difficulties at Don Dale becoming a – a factor, one might say an aggravating factor, in the difficulties that staff were facing in that centre; is that - - -?---I was critical of the old Don Dale pretty much from the get-go for some very basic reasons.

Yes?---Leaving aside the fact that it was only ever designed as I understand it for boys, the dorms did not have flushing toilets, the first time I walked into a dorm at Don Dale it stank of urine.

Why does that matter?---Pardon?

Why does that matter?---Because it bothers me that children or young offenders were getting kept in an environment where, rather than waking up the guard and everybody else in the dorm, that they felt that they were forced to urinate in a corner, leaving the dorm stinking of urine. Now, there was a sort of an industrial carpet on those floors which didn’t mean that that odour went away. The absence of flushing toilets in the dorms was of concern. For those of us who had visited Don Dale the – what was to become the female section, which was the timber ceiling area, there’s a scorch mark behind one of the lamps there which goes up that timber ceiling for a distance of about two and a half metres. Had it not been for a particularly alert youth detention officer who put that fire out – there are, I would guess, about three tonnes of wood in that ceiling. That would have been a calamitous outcome. So I was concerned that the Don Dale – the old Don Dale was not fit for purpose, for those fundamental reasons.

What about - - -?---Let alone the other design issues which meant the ceilings weren’t strong enough that led to escapes in the ceilings out of the cavity.

What about the area that came to be known as the BMU?---Yes, I was aware of its existence. I actually never saw it in operation. I never saw it with inmates in it, but it was – it was there and I was aware of it.


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Could we just go, please, to the tender bundle document 3 in the tender bundle of 26 April. It’s the tender bundle from yesterday.

COMMISSIONER WHITE: Was there a tender bundle yesterday?

MR MORRISSEY: I think there may be a very short one, Commissioners, with 13 documents or so contained therein.


MR MORRISSEY: I just ask you to have a look here at an itinerary. I suspect you had, from time to time five or six itineraries a day, so you may not remember this straight up. If you could just have a look and run your eye over it, though?---If it pleases the Commission it looks like sort of itinerary I was familiar with and will adopt it on face value.

Thank you. So you see there’s an itinerary to tour – on 5 June 2014, yourself, Mr Giles, and a number of other administrators?---Yes.

Just do the best you can and think back. Do you recall – you might not recall the precise date, but do you recall going down at around 8.30 one morning down to the Don Dale Centre?---Yes, one of many visits.

And how many visits did you go there with Chief Minister Giles?---Only the one that I’m aware of.

So this looks like the one?---Yes.

And does that accord with your memory that it would have been in June 2014?---Yes.

Now, without trampling into the area of Cabinet solidarity, by this stage you knew that the – that the funding application – the $2 million funding part had not appeared in the budget; correct?---Yes.

That’s a matter of public record?---Yes.

And that was plain. So on the tour of the Don Dale Youth Detention Centre, who was the – the superintendent that showed you around, or the officer that showed you around?---Mr Caldwell, from memory, but once again we’re still talking about three years ago. So Mr Caldwell question mark.

Yes. You see – do you recall whether or not you went to the BMU area?---We would have done, yes.


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You see at item number 3 – sorry, item number 2?---Yes. It’s not a large institution, so the purpose of that visit, particularly for that sort of time frame would have been to visit every aspect of it. So the BMU would have been naturally included.

Do you recall whether there were any children or young persons currently confined in that BMU?---I don’t recall that at the time, no. I don’t recall ever seeing a young offender in the BMU.

Can I just ask you a question about the BMU. Were you ever told, either by Mr Middlebrook or by legal advisors within the Department, that there was an issue concerning the lawfulness of placing young persons in the BMU cells?---No.

Was it ever raised with you that there was an issue as to whether or not young persons were being placed in those cells outside of the regime of section 153 sub (5) of the Act?---Not directly. Mr Middlebrook did express his concerns about the management plans of these kids and the time that they were spending in the BMU. I took that to mean his personal concerns about the time that they were spending in the BMU, rather than necessarily a legislative boundary.

Just do the best you can to elaborate on that. What was it that he said? What was the concern that he gave rise – gave voice to?---He and I would have had a – as I’ve already said, he and I had a number of conversations about the suitability of the old Don Dale as a general principle. We had an escape, if memory serves me, in early August 2014 in particular, which demonstrated such a profound shortcoming in the ability of Don Dale to contain those young offenders that the only place to place them was in the BMU and Mr Middlebrook expressed at that point that he was concerned about the length of stay that they were in the BMU.

Did you take that to be a humanitarian concern or a legal concern?---A humanitarian one was my interpretation of the comment.

You’ve indicated at paragraph 45 of your statement that you regarded the BMU as not fit for its purpose. When was it that you came to that – you can look – it’s fine, if you look at the statement if you need to, but that’s a statement you made in general terms. When did you come to that view?---Pretty much the first time I saw it.

So that would be when you toured the facilities in 2012?---Yes. Either very late 2012 or early 2013.

Alright. What was wrong with the BMU?---Many of the issues that have already been described in here: natural light, those sorts of things, but the fact is that they were a small cell.

Alright. Tiny cell was one problem?---And, of course, we are talking about young offenders that were in – in that environment.


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Can I come to that in a second. We will go through some physical conditions of it and then – but you’re right to raise it, and I will come back?--- They were grungy. There was of course – there were flushing toilets in the BMU cells, but there was no sink that I recall, other than in the common area outside, including the shower.

Was there air flow; was there air conditioning?---No, it was – I don’t recall if it was air conditioned or not. I think, and I could stand corrected, there may have been fans in the common area, but certainly I don’t recall it being air conditioned.

Alright. And what about – what was the – on what did a child sleep when they were in one of those cells?---They would have been provided with one of the mattresses that had a canvass cover and bedding.

Now, I cut you off before because you were about to refer to the fact that you can’t ignore that these are young offenders?---Yes.

By that are you referring to this: that these – the young people who were in Don Dale generally were people who usually came from dysfunctional backgrounds and families?---As a general principle – I mean, once again, you’re asking me to speculate.

But that was your view of it: these people came, I think your quote was, pre-broken; is that right?---Yeah. And that was certainly, I’ve never made any secret of that world view, but if you’re going to ask me about specific individuals I can’t tell you.

I’m not asking you about the individual kids. I’m asking you about the population of kids that you understand were likely to be eligible to go into the BMU was the same as the population of kids who were in Don Dale in the first place; correct?---They were eligible, yes, but conduct determined whether or not they found their way to the BMU.

Yes. But it was conduct within the Don Dale Centre that determined whether they got into the BMU at Don Dale?---Yes.

Not their outside life or offending outside; correct?---As far as I’m aware, that’s correct.

You understood it to be an internal management facility; is that correct?---Well, they would have been – yes, in accordance with the classification manual that applied to young offenders.

You understood it was used for the purposes of punishing those who played up in the centre?---I don’t know if “punishing” was the correct word. I think it was used as a form of containment.

Containment?---Mmm.


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COMMISSIONER WHITE: How are you going to with time, Mr – it’s 1.15.

MR MORRISSEY: The time has come for a break, but if the witness wants to clarify something that he just said, might he be permitted to do that before I apply to stop.

THE WITNESS: I’m anxious to point out at this stage is that I did not involve myself in individual management plans of inmates and young offenders. That was a matter for the administration of the centre itself and the policies that were in place.

COMMISSIONER WHITE: I don’t think anyone would have thought that you either did or should, Mr Elferink?---Thank you, ma’am.

That’s – that is certainly management. We might take the lunch break now. Is there any other matter that might have been held over that we might need to revisit?

MR MORRISSEY: Yes. I think I can be - - -

COMMISSIONER WHITE: Mr Elferink you’re free to stand down now?---Thank you madam.

Can I warn you should have a big lunch, because this might sit a bit late this afternoon?---Understood, ma’am. Thank you.

<THE WITNESS WITHDREW [1.18 pm]

COMMISSIONER WHITE: Alright. We will start again at 2 o’clock.

MR MORRISSEY: Commissioners, can I raise one matter please, concerning my mooted opposition to the tender of those final paragraphs.

COMMISSIONER WHITE: Yes. Yes.

MR MORRISSEY: The fact is that it seems perhaps overly fussy of me to defer consideration of that. They’re capable of having some relevance. I have – I’ve expressed some grave reservations about it, but it seems to be nit picking to oppose the tender of it now. It was discussed earlier that there may be some further discussions about that. It would appear likely that – at all events, it would be on the cards that the ABC might seek to put on some responsive material, but if they do that’s a matter for them, and Mr Elferink’s counsel has indicated that he wishes to persist with the tender of those and says that they have a relevance as he says, so I don’t wish to second guess that any further and I withdraw any objection to the tender of that. Therefore, it could be that that’s tendered holistically.


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COMMISSIONER WHITE: I see. Well, we’re certainly alert to the fact that we still don’t want it to be, as Mr Harris said, too much of a distraction in terms of how far it will go. And that’s in relation to your observation that you believe the ABC will put on a statement in response. But other than – you want to be heard, Mr Harris any further?

MR HARRIS: Not any further.

COMMISSIONER WHITE: Alright then. Thanks, Mr Morrissey. Well, then the whole of Mr Elferink’s statement can be made generally available, with the exception of the redacted sentence from paragraph 48. We might resume then at 2 o’clock, thank you, and perhaps generally for those who will be here because we’re keen to get – keep going, we might be sitting a little bit late, but if that’s the case we will take a mid-afternoon short break just to let people stretch their legs. Thanks.

ADJOURNED [1.20 pm]

RESUMED [2.11 pm]

<JOHAN WESSEL ELFERINK, RECALLED [2.11 pm]

MR MORRISSEY: Your Honour, I made reference earlier on to the itinerary, and I tender that document.

COMMISSIONER WHITE: Thank you. Exhibit 322.

EXHIBIT #322 ITINERARY

MR MORRISSEY: Could we have supplementary tender bundle item 4 placed up on the screen and might I just provide to the witness a hard copy of that document. I’m about to ask you some questions concerning that day when you went down with Chief Minister Giles down to the – can we just, the numbers are 0001.0007.5887. I’m grateful for that. You indicated that you – what will come up on the screen is a copy of this journal from Don Dale on that date, 5.6.2014. The one on the screen is redacted to avoid the children’s names being mentioned, but - - - .

COMMISSIONER WHITE: And what’s its tab number on the supplementary tender bundle?

MR MORRISSEY: It’s 4.

.ROYAL COMMISSION 27.4.17 P-3129 J.W. ELFERINK ©Commonwealth of Australia

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COMMISSIONER WHITE: I don’t think it is 4.

MR MORRISSEY: 26 April. It’s the small bundle from yesterday.

COMMISSIONER WHITE: We’re a bit mystified about that small bundle from yesterday, I must say.

<EXAMINATION-IN-CHIEF BY MR MORRISSEY [2.13 pm]

MR MORRISSEY: While that’s being resolved, just have a look on the second page?---Sure.

We’ve got a hard copy we can hand up, Madam Commissioner.

COMMISSIONER WHITE: It’s alright. We’ve solved the problem. Thank you.

MR MORRISSEY: Okay.

COMMISSIONER WHITE: It’s only administration. That is knowing what numbers it’s got and so on.

MR MORRISSEY: Yes.

COMMISSIONER WHITE: Thank you. I’m sorry to hold things up.

MR MORRISSEY: So when I say the second page, I meant the second sheet, page 39 at the bottom?---Yes.

And for those in court can we scroll over to 5889E?---38 or 39?

For you it’s the one with 39 on the bottom?---Yep.

And agreeing they’ve got that right. So you see here there’s a reference, Chief Minister Giles, Minister Elferink in for visit?---Yes.

Alright. Now having looked at that, can we just go back to the first page. You see there we’ve got an entry three-quarters of the way down headed BMU and it’s got some people’s names in it?---Yes, that’s correct.

You can take it from me that it’s uncontroversial between the parties, between everyone here, that those people were in fact in the BMU at that time?---On the paper here it certainly suggests it is, yes.

Yes. Well, just thinking back now, what’s your memory about whether anyone was in the BMU at the time you went down .....?---As I said earlier, I have no memory of


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seeing somebody being in the BMU. That’s not to say that it didn’t happen, but I will accept this record on face value that there was somebody in it at the time. I certainly knew the BMU was being used from time to time for the purposes the department had. I just don’t remember seeing people in it, but nevertheless this documentary evidence suggests that there were.

COMMISSIONER WHITE: Looking at your itinerary for your visit, it seems that if you stuck on the itinerary you were only 40 minutes at Don Dale on that visit?---It wasn’t a long visit, but I’m happy to stand corrected if there were people in the BMU at the time of that visit. The purpose of the visit, of course, was to impress upon the Chief Minister some of the challenges that we faced. I had no recollection, that is not to say that it didn’t necessarily happen.

MR MORRISSEY: I tender that document.

COMMISSIONER WHITE: Exhibit 323.

EXHIBIT #322 JOURNAL FROM DON DALE DATED 05/06/2014

MR MORRISSEY: Just before we get to the events of August 2014, I just wanted to backtrack, if I could to – I might leave that topic. Okay. So just turning to August 2014, at this point you became aware that – at the start of August that there had been an escape on 2 August and that the escapees had been brought back into the centre in dribs and drabs over the next couple of days?---Yes.

Is that correct? And you were briefed about that by the Minister – sorry, by Mr Middlebrook, through the - - -?---Yes.

Yes. Okay. When you were briefed by the Minister, did you inquire how those escapees were being housed?---No, no.

Alright. Were you aware that they were to be housed in the BMU?---I wouldn’t be surprised if they were, but I don’t have an actual recollection. As it turned out they were.

Yes. And is your position about that you simply don’t recall whether you knew that or not?---That’s right.

Alright?---Once again, the management of prisoners was an operational issue for how those institutions were managed. If it was determined that the BMU was a necessary place to place these – these individual young offenders, then that’s where they would have been placed in accordance with the processes of the organisation.


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Did you announce the transfer from – the transfer of the Don Dale facility from old Don Dale to the Berrimah facility on 5 August?---To Berrimah or to the CBU at Holtze?

No, to Berrimah?---Could have done. I would have to .....

That’s foreshadowing the transfer; it’s not that you did it straightaway?---There would have been a press release or something of that nature. I was aware of the concerns that Mr Middlebrook had in relation to the housing of the – the juveniles.

Alright. Now, can you recall – I took you to that visit that you participated in with the Chief Minister. Upon departing from that facility, do you recall any discussions with the Chief Minister as to the suitability of the BMU for the purpose?---My conversation with the Chief Minister would have been that there was a problem with Don Dale, period. I would have been alerting him to all of the issues I’ve commented on here, which included the lack of ablution facilities inside the dorms, the potential for a disastrous fire, the breaking in through the ceiling. There would have been all of those issues.

Alright. And do you recall what his response to all that was?---The Chief Minister remained, for a lack of better words, reluctant to acquiesce to the notion that more money should be spent.

Alright. I’m not asking you to go inside the Cabinet room here, but simply while down at the Don Dale Centre, did you point out to him that, “Look, this place is not fit for purpose and it’s staffed by people who have – who are completely untrained”?---My recollection is that I actually wanted the – the trip to occur because I wanted to show the Chief Minister some of the challenges that we faced.

You’re familiar with the fact that Mr Middlebrook performed a similar manoeuvre with NAAJA when he showed NAAJA through the centre with a view to obtaining their support for the move?---Yes.

Is that correct?---I would have encouraged him to do so. I encouraged Mr Middlebrook to have a full and open relationship with NAAJA, as I did. It was an open door policy for NAAJA into my office.

No, I understand that. But I guess the point I’m getting to here, just as easily with NAAJA as you did with the Chief Minister, trying to show the realities of the situation in order to engage some interest in the process you were hoping to achieve?---Yes.

Which was to get some funding for training and get a move to a more suitable facility?---I was critical, as I’ve said from the outset, for the quality and the ability for Don Dale to do the job for which it was – I won’t even say designed. It was – I was critical of Don Dale for its ability to do .....


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Alright. But could I just ask you to identify, as best you can, what it was that Mr Giles said to you at that point?---I don’t actually recognise – remember a conversation, but I certainly came away from it feeling that the position was – the position of government would be unchanged.

Okay?---But I was suggesting as strongly as I could that we had to explore options.

Alright. Now, the incident occurred on the – what’s been referred to as the tear-gassing incident occurred on 21 August?---Yes.

And you were briefed about that; correct?---On the night, yes.

And you’ve drawn attention to a flash brief with which you were provided?---The following morning, yes.

Alright. Now, you’ve – subsequently you’ve come to know, haven’t you, that Mr Ferguson from the PSU, at the behest of Mr Middlebrook, performed an investigation into these incidents and made a report about it?---Mr Ferguson?

Mr Ferguson, the head of the PSU, head of the Professional Standards Unit?---Not that I’m aware of. I don’t recall a Ferguson report. I recall a Children’s Commissioner report, but not Mr Ferguson, from the head of the PSU.

Well, there’s a document that’s been tendered into evidence here from Mr Ferguson. That’s a report to the Commissioner?---If – anyway, go on.

It may be one of those reports – you didn’t receive that report. That’s fine?---Yes.

But the issue is – that’s exhibit 125, and I wonder if that can be placed on the screen just to be sure whether you’ve seen it or not. This will be a report dated 19 September 2014. It’s a memo to the Commissioner from the director of the PSU?---Yes.

You see that document. Now, if you accept it from me that there’s been evidence of emails that passed between those two individuals, Mr Middlebrook and Mr Ferguson, where Ferguson said to Middlebrook, “Look, I’m going to produce the report and it’s going to be severe,” and Middlebrook said “That’s good,” and encouraged him to do so, and said, “Because then I can act.” The implication being, in that conversation – I understand they’re not your emails, but the implication being it’s going to be taken further. Now, what I suggest to you is that – following 19 September 2014 I put it to you that Mr Middlebrook came to you and in no uncertain terms told you, “We have got a major problem with our staffing.” Do you agree with that or not?---It’s in my memory that he raised that issue quite – particularly in the context of that time, yes.

Yes?---There’s actually a number of things that occurred in a very short period of time during that period.


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I appreciate that. Now, could we just – in fact, I won’t – I won’t do the same process here. If you can take it from me that a number of issues were raised by Mr Middlebrook, I want to put to you that he raised those with you. I won’t quote from the report but I will just put them to you as a general prospect. He raised with you that there had been – that he had identified that staff morale in the Don Dale Centre was poor?---If he raised it with me, I would have agreed with him, because I knew that to be the case.

Yes. So what you say, you haven’t got a particular recollection, but you say it’s likely he did?---I certainly don’t disagree with the ......

Okay. And he raised with you that the staff that had been recruited included – now included many unsuitable staff or a number of unsuitable staff?---Not specifically unsuitable staff. He did raise with me on another occasion the gentlemen who have now been identified the men of muscular build, it was the – Mr Zamolo, Mr Kernahan, was it? And another gentleman.

MR ..........: Kelleher.

THE WITNESS: Kelleher. Thank you. He had told me that he had moved to dismiss two of them. One had resigned, the other one eventually had been dismissed, and he described the circumstances which is now available as video footage which is the pear incident.

MR MORRISSEY: Alright. Well, I want put to some things to you. I put to you that he said that – sorry, I just want to put a couple of these. He put to you that he had allegations of detainees not being released from their cells – sorry, let me take a step back from that. He put to you a number of factors that were relevant to what happened at Don Dale on the night of the tear gassing. Do you agree with that?---Yes.

Alright. And among those things he put to you were that in short form, that some staff had behaved in a completely inappropriate way in the lead-up to the incident?---No.

That he put to you that there had been incidents of staff throwing fruit at inmates in the BMU?---As I said, he had identified at some stage the incident with the pear.

Yes. He put to you that there were complaints that the group - - -

COMMISSIONER WHITE: By using that – I’m sorry, but by using that expression, “Mr Middlebrook put to – “ you mean told the Minister, don’t you?

MR MORRISSEY: Told the Minister, yes. Yes, I’m sorry. Perhaps I should not use the legal term.

COMMISSIONER WHITE: I find that a very curious way of putting it.


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MR MORRISSEY: Mr Middlebrook told you that there had been a group known as “Jimmy’s Boys”. When did you first hear of the group Jimmy’s Boys?---Just as you mentioned the name. It may well have come up in evidence, but I haven’t been following with any – very closely the proceedings here. Unfortunately, I’ve been getting on with my life which has required me to work whilst the proceedings have been going on. I’m not sure what you’ve heard in evidence, but Jimmy’s Boys is the first time I’ve heard the term as you mention it.

Well, I will put it more generally to you. In – he put to you that the incident – and it’s the incident had been caused in part by the poor training of the staff; correct?---No. But I will say that I was concerned about staff training for a long time prior to that.

That concern - - -?---I’m not trying - - -

Came from the information that you got from Mr Middlebrook, among others, didn’t it?---Yes, over a period of time, but also my observations.

Sure. But he – I’m putting it to you as a positive fact and you can say yes, no, I don’t remember?---The answer is no.

You’re saying Mr Middlebrook did not identify to you that staff training played a role?---No. You see, I’m trying to answer the Jimmy’s Boys still. Yes, he had talked about staff on a number of occasions.

He had, but what I’m suggesting to you is that he identified that as one of the causes of the problem that occurred at Don Dale?---What he had said to me subsequent to those events was that the staff were not prepared to be able to deal with the issue, which is why he had to bring the response – the tactical response unit over from the Berrimah prison to deal with the issue in Don Dale, because the training wasn’t there, and that wasn’t the only incident where – which a lack of training was revealed.

Yes. Alright. Did he draw to your attention that the group known as Jimmy’s Boys had behaved – perhaps I will take that back. You’ve said you hadn’t heard the term Jimmy’s Boys; correct?---No.

Alright. But did he refer to the fact that there was a group of employees who had behaved poorly and unprofessionally in the weeks leading up to the incident?---The only reference that he made to me was the specific incident of the pear where he said he had decided to terminate them, or terminate two of them. One resigned prior to termination. He certainly made me aware of those issues.

Did he make you aware of issues such as that some of these officers were bringing mobile phones into the centres?---Certainly not. That would have been a breach of the – the system and he knows that my response would have been that’s a – that’s outside of Standard Operating Procedures. Even when I went into Don Dale, or into


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the adult correctional system, my mobile phone went into a secure box before I entered the premises because of that rule applying.

Did he draw to your attention that – that the youth justice workers had been imposing inconsistent regimes in the BMU?---Beyond saying to me that he was concerned about the – the – the young offenders being in the BMU, no.

So from what you’re saying here, may I take it that you didn’t see there – as of September 2014, you didn’t see there as being a major problem in staffing and staff conduct at the BMU?---That is – that is absolutely not what I said. That’s quite wrong.

Well, what is it?---What I said was that I had concerns about staff training and the ability to do their staff, about their job, which is part of the reason that I asked for the Vita Review to be done. So it’s not correct that I was ignorant of problems. What I was, was alive to problems but specific incidences which you raise hadn’t been drawn to my attention, or certainly not that I recall.

Well, we will just – with that qualification, do you mean they might have been drawn to your attention and you don’t remember or that they weren’t?---The answer is no, as far as I can recall.

Alright. Now, just tell us how the Vita Report came to be commissioned, please?---Okay. Shortly after the gassing incident, I received an email from memory from the then Children’s Commissioner, Dr Howard Bath. Bath said to me he had some urgent issues he sought to raise and I said, “Come and see me early next week.” I presume it will be in my diary, it may not be in my diary, and he came and he showed me a document which was still in draft form which he was preparing. Inside that document was still frames of a number of the incidences which were ultimately shown in the Four Corners report. I was quite shocked by what I saw, and I recall speaking with him and he said he – I said to him “Why did you wait for such a long time?” He said there were a number – sorry, he said there was a matter under investigation and he was waiting for that to come through. He also said he was aware of other issues and that he wanted money, $300,000, to run an inquiry. I said to him, “These are crimes; these look like criminal offences.” To which he replied “Yes, I think they are.” I said, “Take it to the police.” It’s my understanding that’s what he did. He then left my office. That conversation went on for about 20 minutes. I spoke to my chief of staff about it in particular and I, of course, contacted Mr Middlebrook and said, “Can you explain to me what’s happening?” Mr Middlebrook assured me that those matters were known to him and that appropriate steps had been taken in terms of criminal investigations and in the matter of one I was aware of was Mr Tasker, because it had been in the public domain. He said that those have been appropriately dealt with. Part of the conversation with Mr Bath, or Dr Bath, was that he indicated to me he was worried about a systemic issue of violence. Mr Middlebrook countered and said, “No, there is no systemic issue of violence, we’ve had a number of isolated issues.” That’s not to say there weren’t other systemic problems, but there were a number of isolated issues. At that point I


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was stuck on the horns of a dilemma, because I had one Commissioner saying there was systemic violence and another saying there wasn’t. I certainly instructed Dr Bath to report what he knew to the police and I spoke to Mr Greg Shanahan. We discussed the matter and the suggestion of an independent review, of a clean set of eyes was – was appropriate, so I contacted Commissioner Middlebrook. Actually no, I didn’t, I asked Mr Shanahan to contact Commissioner Middlebrook and suggest the idea of an independent external review, which is where Mr Vita was found.

Alright. Just stop there for a second. Having regard to your statement, I will just give you some – have you got a copy of your statement there?---No, not in front of me.

Because there might be a bit of jumping, I’m just placing - - -?---Sure.

- - - before the witness a copy of his statement. I won’t jump to every bit that’s on the screen here. Would you mind just turning to paragraph 61?---Yes.

I will take you through the chronology here. So what you’re saying is that here you say on 3 October you had the telephone conversation with Mr Bath?---Yep.

There he’s indicating systemic concerns that he has; correct?---In that conversation, he reiterates it, yes.

Okay. I won’t take you to the details of the – of the reports that he offered, but on – go to paragraph 63, on the 24th he then delivers you two reports?---Mmm.

And it’s – contained within one of those confidential reports are the stills to which you had regard; is that correct?---Yes.

And it’s at that point on 24 October that you’re on the horns of the dilemma that you’ve described; is that correct?---No. Much earlier. The horns of the dilemma that I felt I was on was pretty much back in August. See, this is why the chronology of the events is important: Mr Bath, or Dr Bath raises with me matters that on the face of it are criminal in nature. It’s almost a Pavlovian response from me: if there is a potential crime then - - -

I understand. I’m sorry. Go back to paragraph 58?---58.

Alright. So is your position this: that Mr Middlebrook had told you that there were no institutional problems at or around that time?---No. Mr Middlebrook said there was no institutionalised violence against children at that time. There was certainly institutional problems, but the – the abuse issues, the criminal matters that I was concerned about, Mr Middlebrook indicated to me that they had been a number of isolated incidents over a number of years.

Yes. Alright. Well, we’ve heard an account, and what you’re saying is it was pursuant to a discussion with Mr Shanahan that you initiated the Vita Review?---I


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asked Mr Shanahan to contact Mr Middlebrook and suggest it to him, yes. I later checked with Mr Middlebrook he had received the phone call and I suggested to Mr Middlebrook it would be a good idea.

I understand. So what date or what day do you think that was?---Well, immediately after I would have spoken to Mr Middlebrook. Clearly, after what Dr Bath had told me, it was not long before I spoke to Mr Middlebrook and said to him, “What’s going on?” At which point he says, “We’re aware of those issues, they were raised a number of years ago by Dr Bath, and those matters have been investigated.” So the issue of a criminal investigation, at that point, I am somewhat more at ease that the matters had been attended to. There then comes the institutional issue as whether or not we have a systemic problem with violence against detainees.

Yes?---I have two different positions from two different Commissioners, one who says yes, who one says no. At that point I need an independent authority to cast a clean eye over it and tell me whether I have or haven’t. Which was the kernel which grew into the Vita Review.

Alright. So anyway your account of the Vita is that you instructed that the Vita Review be commissioned?---Yeah, I don’t recall if it was Mr Shanahan or myself who actually suggested it during the conversation, but being the senior of the two I certainly said yes, which means that I call for it.

Alright. In the days following the August incident, the 19 August incident, you were aware of at least one view that there was institutional – there were problems with institutional violence against the children; is that correct?---No. That’s not what my evidence is.

No. But to be clear, you had the comments of Bath on 23 August?---Yes. In that case, I had an opinion from Dr Bath that that - - -

Yes?--- - - - there may have been an institutional problem of violence.

And you had an awareness that the staff modelling and the staff training was woefully inadequate at that time; correct?---Yes.

Alright. So knowing both of those things you then responded in the media to inquiries from the media about what happened in the tear gassing incident; correct?---Yes. Specifically in relation to that incident.

Yes. But did you ever mention in any of those media issues the dysfunctional nature of the workplace at the Don Dale Centre of which you had various indications already?---I had been critical of Don Dale on a number of occasions publicly prior to that.


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But did you mention that - - -?---But in relation to this particular issue, the – the matter of the use of gas and that specific incident was what I was dealing with in the media at that stage.

But did you describe these – the people participating as the “worst of the worst”?---May well have done, because they were in the BMU, they had behaved in such a fashion, which – where they had escaped, they had – had demonstrated that they were difficult to manage. I understand the Commission has received no shortage of evidence in relation to that. And so, unfortunately, the worst of society end up in criminal institutions and the worst of the worst end up in places like the BMU, sadly.

Did you know that one of the kids was 14 who was in there?---Not particularly aware of their ages, but - - -

Why weren’t you?---Simply because those are operational issues as to how kids are housed and dealt with.

But how – just stopping there, how can you call them the worst of the worst when you don’t even know – when you know no details about each one?---Because of their conduct. I don’t - - -

Just because they’re in the BMU they’re the worst of the worst?---No. Their conduct they had already demonstrated by escaping, and committing offences whilst at large, that they were difficult to manage.

Just on that topic, do you think there would be much of a crime in escaping from an institution like – well, I take that back. I withdraw that comment. I will deal with it a different way. We’ve heard evidence from the people who had to work there, including Mr Kelleher and others, describe the BMU at that time as a “shithole”?---I think that’s a fair description.

Mr Kelleher said that it would have driven him mad to be there?---Mmm.

And almost all of the workers who went down there said it was a disgraceful environment to be in?---I agree.

And oppressive to the children?---It was a – a unit which was unsuitable for purpose, as the whole of Don Dale was.

So when characterising the conduct of the children at the time of the tear gassing, why did you call them the worst of the worst and ratbags and so on?---Well, hang on, “ratbags”?

Did you describe them as ratbags?---I don’t recall saying ratbags, but if you have some evidence to show me I’m happy to respond.


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There’s a variety of things I will show you?---Okay.

But just – alright, leave ratbag aside for the moment. You did describe them as worst of the worse; correct?---If memory serves me.

Yes. Alright. Well, why did you do that when you knew they had been held in appalling conditions with fruit throwing and dysfunctional guards looking after them?---Once again, I did not know there was fruit throwing.

COMMISSIONER WHITE: Just - - -

MR HARRIS: I object. The end of the question that has the question mark on it doesn’t follow from the run-up to it, in my submission, because the witness has said that his description related to their conduct in escaping from Don Dale and committing offences while at large.

COMMISSIONER WHITE: I think it also included that he must have been misbehaving to be in the BMU.

MR HARRIS: But they were in the BMU because they were recaptured after escaping.


MR HARRIS: They didn’t escape from the BMU.

COMMISSIONER WHITE: Sorry.

MR HARRIS: So my submission is - - -

COMMISSIONER WHITE: He’s talking about their conduct from 2 August up until 21 August, I’m assuming.

MR HARRIS: That’s as I understand the questions, but the witness’ answer about using that description was anchored to, in my submission, Commissioner, the – and I apologise for being too argumentative, Commissioner, it must have been a long week.

COMMISSIONER WHITE: Not at all.

MR MORRISSEY: I will rephrase the question. I rephrase the - - -

COMMISSIONER WHITE: Why don’t you reframe that question, Mr – thank you.

MR MORRISSEY: Alright.


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Don’t you think it was highly irresponsible to use pejorative and critical terms of the children whilst not explaining to the public who are listening that they’d been in the BMU in the circumstances that you knew prevailed?---When you’re dealing with the media, you deal in bite sized chunks. I had often tried to encourage debate in the media. In fact, I regularly encourage the media to come into a variety of my correctional facilities to deal with those greater issues. This was a very intense and particular instance in which the media were focusing, and I had made a number of comments to the media which hit the cutting room floor because it didn’t suit the media. I can’t speak for the media’s editorial choice, what I can do is try to explain things to them, and also I will express opinions from time to time and that was an opinion.

That may be something – you’re not suggesting that you told the media of the conditions down at the BMU and they just left it out, are you?---I have told the media on a number of occasions that I was unhappy with Don Dale. In fact, I had made public comments to that effect ......

Don Dale, though. I think the BMU was the focus of the question. Are you saying you told the BMU – told the media that the BMU was - - -?---Not on that occasion, but on a number of other occasions I had done so. I was critical of Don Dale. That is well established and well on the record.

Yes. Alright. So just come back to my question: don’t you think it was irresponsible to describe those kids as the worst of the worst when justifying the response of your workers to the - - -?---It was a description of offenders inside a correctional institution.

You just cut me off, I’m sorry?---Who were the worst offenders.

I’m sorry, you just cut me off, so just let me finish. Don’t you think it was irresponsible to so describe them when you knew there was more to the story, when you knew that the BMU was a disgracefully unfit centre, staffed by people who were ill-trained and behaving poorly?---What I would have said to the media at the time was that I was – that Don Dale had its challenges and was not capable of dealing with these highly violent and often dangerous young offenders who were in the system.

And did you tell the media that you don’t actually know anything about the six individuals who were there?---I wasn’t specifically asked, and if I were I certainly wouldn’t have expanded on that in the media, in front of the media. The only time I authorised the identification of juveniles was when they were at large after escaping - - -

I wasn’t asking – I will stop you there. I wasn’t asking about identifying them, but since you chose to describe them as the worst of the worst, did you admit to the media then or any later time that you didn’t know anything about the individuals?---What I said was that I had been critical over or about Don Dale for a


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long time, and made that public. This particular instance demonstrated again some of the shortcomings of the old Don Dale and subsequent to that time I have been critical of the old Don Dale in expansive public comments.

Did you ever correct the record though and say look, to the media, “Back then when I said it was the worst of the worst who rode, I’m very sorry for saying that because, in fact, those people were imprisoned in intolerable conditions in a substandard unit staffed by substandard workers”?---Not in so many words, but having made that observation I have been critical of Don Dale over a number of years, as I’ve said, and I genuinely believe that the description of those – those young offenders in that circumstance was accurate.

And that it was appropriate. Do you think it has a bad effect on young – young people with various disadvantages and disturbances, who the hope is that you’re going to reintegrate them, to demonise them in the press by calling them the worst of the worst?---Their conduct, I suspect, had as much on their demonisation than anything I said.

Including the two that were sitting there playing cards when they were gassed?---Once again that level of detail was never explored by the media.

Or by you?---Sorry?

Or by you?---Or by me, for that matter, because - - -

Did you know they were playing cards when they were gassed?---I had – certainly was aware that the Children’s Commissioner was going to look into those issues and report accordingly.

Alright. I will just turn to the Vita Report. We’ve heard evidence from Mr Middlebrook that he’s the one who commissioned the Vita Report and it was his decision and his initiative to do it. Do you agree with that or disagree?---No, I disagree, but there’s no doubt he contacted me ..... Mr Vita.

We’ve heard evidence from Mr Middlebrook – and not cross-examined or challenged, so far anyway, that he was the – that he commissioned the Ferguson Report from his PSU in order to launch that Vita Report and provide Mr Vita with the materials?---I would accept that.

Alright. You’re saying you weren’t brought – you weren’t told anything of the contents of the – of the report compiled by Mr Ferguson that’s in evidence before here?---No.

Just excuse me. I just want to put one line from it to you and see if that rings a bell. In particular, I can see if this – we’re just missing one page. Sorry. Here it is. I’ve got it. It’s okay. It’s at page 5. So were you told that the findings of that report, the Ferguson report was that:


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It should be obvious to anyone that if you treat youths like animals by not communicating, threatening, belittling them, withholding food and other entitlements, they will react in an aggressive way. Most of these incidents were most probably entirely preventable with the use of appropriate communication and open interaction with the detainees combined with a regular routine to keep them occupied.

Were you told that was the conclusion of Mr Ferguson?---No, I don’t recall it.

Did Mr Middlebrook bring that view to your attention?---No, not particularly that view. As I said, we discussed those – the management of the institutions more generally.

Yes. But can I just put – I just want to put this on the record to be very clear about it. I put to you that he did tell you precisely that: that these incidents were available – these incidents were avoidable and that it was treating the youths like animals, for the reasons I set out, which lay behind the incident?---I don’t recall him saying that to me at all, and no is the short answer.

Alright. Now, the Vita Report – just turn to the Vita Report. The Vita Report ultimately, there was a draft of the Vita Report produced late in 2014. And then in 2015, January, that report was produced; is that correct?---That is correct.

Alright. And were you told that the – that the Commissioner and his subordinates were putting in place responses to the recommendations that were made?---Yes.

Now, were you told, in fact, that the – that some of those responses involved forming a new staff model?---Yes.

New model for staffing, reducing the amount of casualisation; correct?---That was one of the recommendations of Vita.

Increasing the training; correct?---I committed to every – all of the 16 recommendations of Vita.

Yes. Can I just put this to you: there’s not a single of the Vita recommendations which was new as far as desired outcomes for youth justice?---They were certainly new to me, or most of them were, but they confirmed what I had suspected already. I needed a template to move forward. Matters were under criminal investigation, as far as I was concerned, and that component had been dealt with. The next concern I had was dealing with the systemic issues. (1) was there systemic violence against children in the system? Vita says no. There were other systemic issues that needed to be attended to, and that is the basis of the 16 recommendations. I was clear to Mr Middlebrook, as I was to the public when I released that report publicly, that we committed to all 16.


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Can I just point out to you that the problems identified in Vita in 2015 were, all of them, evident to you as problems back in 2013 when you were briefed by Mr Middlebrook and when the budget submissions were being developed?---No, not in that – in the bullet point type sense. I was certainly aware of issues, and the incidents of August 2014 was ultimately what galvanised the response and the reliance on Vita going forward.

Did you discuss with Mr Middlebrook using the Vita Report as a trigger or a goad to get the Government interested in funding the reforms that were necessary?---I certainly used the report. Once again, I have to be careful.

Just keep it to the discussion with Mr Middlebrook?---In relation to Mr – the discussion with Mr Middlebrook, I was certainly hoping that the Vita Report would give greater weight to argument in support of reform of the juvenile detention facility.

Alright. And we’ve been through some of the training reforms that occurred in 2015 with Ms Cohen and with Mr Middlebrook already. What did you understand to be the progress of the rollout of new training regimes and a new staffing model?---As far as I knew that was occurring in accordance with Vita’s recommendation. I actually addressed the training – a couple of the training courses of youth detention workers when they were in the training phase. So I went to the training facility at Holtze where the training was being done. I spoke to staff, I spoke to the participants in those training courses, told them what the expectations of Government were, and having witnessed those training courses on foot, I believed it was being rolled out appropriately.

Yes. Alright. Now excuse me one moment, please. Commissioners, excuse me one moment, please. So Mr Elferink, others have to ask questions and I’m going to wind my component up after about 10 to 15 minutes. I just need to deal with a couple of issues moving into 2016?---Yes.

And they really concern this issue of tough on crime. I asked you earlier on how you viewed the notion of tough on crime and really it’s a flavour that colours a number of initiatives from time to time?---Yes.

But would you agree with this: that as far as the youth justice space goes there is no evidence that a – that tough on crime measures such as heavier sentencing or increased remands in custody of young persons has any effect on recidivism of young offenders?---Are you asking whether I introduced policy that - - -

No, I’m asking you whether you’re aware of any – I will put the general framework, so that individual questions .....?---Okay. So as a general proposition.

I will put a general question to you. What I’m asking you about is, here, whether there’s any evidence that you know about, any studies, any learning, any reports, that heavy sentencing works to reduce youth crime and youth recidivism?---No.


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Is there any evidence that you know of that increased remanding of young people has any effect on youth crime or youth recidivism?---Other than the time they spend in custody, no.

Yes. And that’s really simply deferring the issue, isn’t it?---Yes, but - - -

Is that right?---In terms of their criminal conduct, I can’t speak for an individual youth and their – and their behaviour.

I’m not asking you to. I’m asking you to point to evidence and studies and expert opinions and the like. You’re not aware of any, are you?---No.

And there isn’t any, is there?---Not that I’m aware of.

No. So when it comes to – and finally, in terms of harsh treatment of youths when they’re already in detention, there’s no evidence that such treatment has any beneficial effect for the – for the young person in terms of reducing recidivism or repeat offending?---No. But I never introduced a policy that reflected any of that.

That’s okay. I’m not suggesting that you did right now, but I just ask you to acknowledge those things?---I acknowledge those things but it’s an academic conversation, because I never introduced the policy.

Well, we will see?---Okay.

The point is this: when tough on crime is applied to the youth justice space, it’s really just rhetoric, isn’t it?---No. There is a public expectation that the youth who commit crimes in the community are brought to justice, like anybody else.

Well - - -?---There is a public expectation that is out there. The message – one anecdotal observation I would care to make at this point is that the new Government in the Northern Territory has - - -

Sorry. I will stop you there please. I don’t want ..... make - - -

COMMISSIONER WHITE: I don’t think that’s helpful, thanks very much.

MR MORRISSEY: - - - anecdotal comments about the new Government?---Well – okay. Well, the short answer is that – I’m sorry, go on.

Yes. Well, so what I’m putting to you is there’s no evidentiary basis for thinking that harsh measures, with respect to youth justice offenders, has any effect upon them or upon reducing the crime rate?---In – in the instance of particular individuals going through the system, no. Whether or not a tough on crime approach deters other youths from committing offences or not is not measurable.


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Well, just on that topic, are you suggesting that youth justice has a deterrent quality. I asked you that earlier and you said no, but - - -?---Well, what I said – what you were talking about was sentencing regimes, and those sorts of things particularly. I don’t want – wish to engage in an argument with you, Mr Morrissey. What I would like to do is share my opinions and thoughts - - -

No. Just answer the questions, please?--- - - - To assist the Commission.

I mean what – just no. No, no. You’re just here to answer questions, right at the moment, and the question is: are you saying that deterrence is a factor in tough on crime approaches to youth justice?---I’m saying I don’t know that. It’s - - -

Was that one of your motives?---It’s not measurable.

Okay. So thank you for it’s not measurable. That is a relevant response, but were you motivated in the measures that you introduced from time to time by deterring youth?---Yes. Part of what I wanted out of a – out of a crime policy was a deterrent effect. However, in terms of changing the Youth Justice Act to put kids in prison, never happened. It remains, to this day, the last resort of a court.

But what about leaving the youth justice system?

COMMISSIONER WHITE: .....

MR MORRISSEY: Pardon me. Yes, go on?---Nor did I, in any way, make sure that – when mandatory sentencing was applied to assaults, was – I made sure that the application of that legislation to juveniles wasn’t applied. If a juvenile ends up inside the – a detention facility, it’s because a court exercised a discretion to do so.

You had a media – was there a media policy concerning tough on crime that your Government operated?---There was certainly a position as Government endorsed, or supported by media policy, that people who committed offences would be brought to justice.

Was it viewed by you and your party – I will limit it to you – that a tough on crime stance was electorally attractive?---It certainly reflected the opinion of the public and that was a message we were sending to the public.

Sure. So what’s the answer to my question?---The answer is - - -

Was it viewed as electorally attractive?---Yes.

Thank you. Could we please have on the screen document 12 from the – there’s a tender bundle dated 27.4.2013 and it’s document 12 of that. Got an email on the screen here. This is an email from you – or an email exchange from yourself to Tim Baldwin. Now, this is dated 21 March 2016, do you see that?---Yes.


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And by that stage you knew that before your term of the CLP was – that an election – a mandatory election was looming; correct?---Yes.

Alright. And who is Tim Baldwin?---Tim Baldwin was at that time chief of staff to the Chief Minister.

Alright. So here you have an ideas exchange as to potential matters to advance as part of the electoral campaign; is that correct?---Yes.

Did you list the following tough on crime potential measures: life means life?---Yes.

Generalised youth apprehension policy?---Yes.

Publicised right or wrongs with or without politicians?---Yes.

Mandatory sentencing for property offences?---Yes.

Reform schools in Darwin and Alice Springs?---Yes.

There’s a large number of these listed here. Greater restraint powers in juvenile detention?---Yes.

Current. What does that mean, “current”?---Well, that meant that had had already been introduced in – well, not greater restraint powers, but that had already been introduced. It was a rationalisation of restraint powers. This list, by the way, was at the request of the Chief Minister and it was originally sent to him.

That’s okay. Number 9:

Amend youth justice legislation to remove the notion that custody for a child is a last resort; make protection of the community the primary concern.

?---Mmm.

That completely contrary to all the international instruments that we mentioned earlier, wasn’t it?---Yes, but I was asked by the Chief Minister to put together a list of policy statements that he might want to take forward.

Why did you put that one on the list?---Because it was consistent with the request he made.

COMMISSIONER WHITE: But your evidence - - -?---None of these things ever became law in the Northern Territory.

Mr Elferink, your consistent evidence throughout here has been that you endorsed thoroughly that detention was a last resort for youth under the Youth Justice Act?---Yes.


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And I think said with some pride, and that never exchanged?---And hasn’t – sorry, madam.

So it’s a bit difficult to align that with that proposition in your email?---The Chief Minister said that he wanted to go to the next election. I had already indicated my desire to retire by that stage and he said, “What do – come together with a list of policies that the CLP can go forward with the particular notion of – of crime and those sorts of issues in the community.” And he said make it a list, just produce a list and we will knock them out or agree to them as we see fit.

So I take it then you weren’t - - -?---I don’t necessarily endorse everything that was on this list.

No. But right at the beginning of your evidence you talked about some policy of government of which you would be a Minister, that a Minister notionally might resign if it was inconsistent with your held principles?---I see.

I’m paraphrasing here, so it makes me feel a bit uncomfortable to think that you can say that this was said lightly, or that you included this in this very long list, if you’re trying to persuade Commissioner Gooda and I that, in fact, this was one of your well held beliefs that this shouldn’t happen?---This was prepared on an iPhone at the request of the Chief Minister to provide a list of possible policy announcements going forward. He said, “Mention everything you can think of.” Which is precisely what I produced at his request. Had these things been pursued beyond that point, then I would have explored them more fulsomely with the Chief Minister.

MR MORRISSEY: What about number 20:

Substantially enhanced juvenile squad to target known ratbag families.

?---Yes.

You took issue about the use of the word “ratbag” earlier on. What do you say about it now?---Well, once again this was a – at the time an iPhone text between myself and Mr Baldwin. It’s certainly not a term I ever used publicly that I can recall. However, there is no doubt that there a number of families in the Northern Territory which produce a large percentage of its crime problem. There are already task forces that already do that sort of work anyhow.

Paid advertising campaign on real crime results?---Yes. The problem that we had as a Government was that, no matter how hard we tried in relation to demonstrating the results that we were getting, nevertheless the media just simply failed to effectively report the results that we were getting, so one of the suggestions were that we actually paid for advertising space to let people know what was actually happening, rather than the – the challenging problems that we had with the media erring.

What about 29:


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Announce a review for mandatory sentencing for violent youth.

?---Yes. Once again it’s not something I would have later supported but certainly as a brainstorming exercise, which is what the Chief Minister wanted, I provided all of the potential options that he may want to consider and Government may want to consider. Just because I put it on a list, doesn’t automatically follow that I agree with them.

Well, can I just pursue that for a second, please. You didn’t have to put mandatory sentencing for violent youth on the list, did you, given what you’ve said were your beliefs about mandatory sentencing?---If I was brainstorming a list every idea is in until it’s knocked out.

Alright. Commissioners, I’ve got a number of other residual matters, I may leave them now because .....

COMMISSIONER WHITE: Yes. Alright. Thanks, Mr Morrissey. Has – is there an order been arranged with the parties? Mr Boulten, will you take up the challenge of going first again? Thank you.

<CROSS-EXAMINATION BY MR BOULTEN [3.06 pm]

MR BOULTEN: My name’s Phillip Boulten?---Mr Boulten.

I represent the North Australian Aboriginal Justice Agency. May I start where Mr Morrissey just left off, if we can just go back to that, please. Could we have it back on the screen, please. It’s in the tender bundle yesterday. So could you have thought of anything worse to put on this list that was more draconian than the shopping list that you did provide to the Chief Minister’s office?---The list also includes things like the Hope courts and those sorts of things, which - - -

Could you think of anything worse? Is there any more draconian policy that you could have added?---There would probably have been a number of more draconian policies that I probably could have added but the point was I was being asked to provide a brainstorming list, which is what I did.

Okay. So when the Country Liberal Party prepared for the 2012 election and developed a manifesto for that election, did you go through the same process as this in - - -?---I would have gone through a very similar process, yes.

Okay. Were you involved in formulating the policies that became your Government’s policies on law and order?---Many of them, yes.

In the manifesto that was published prior to the election it stated that the Northern Territory has the highest rate of incarceration in prison in the country?---Mmm.

.ROYAL COMMISSION 27.4.17 P-3149 J.W. ELFERINK XXN©Commonwealth of Australia MR BOULTEN

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And that was said to be a relevant factor under a heading Jail Means Jail?---Yes.

Right. Did you campaign on the basis that you would reduce the number of people in custody?---What I campaigned on was the basis that we would bring people who commit crimes in our community to justice and, in the case of violent crime, particularly in the workplace, that those people would serve actual jail time under a mandatory sentencing rule, with the exception of juveniles.

Was there a policy to reduce the number of Aboriginal people in custody?---I certainly introduced one, yes.

When you went to the election, was that a stated election policy?---I – I would have to go back and check but I think I remember talking about making sure that prisoners in the system were employed as a vehicle of reformation.

COMMISSIONER WHITE: Not sure that that answers Mr Boulten’s question. Maybe you would like to ask the question again, Mr Boulten, to clarify it.

MR BOULTEN: Did you campaign on the basis that you would reduce the number or the incidence of Aboriginal prisoners in Northern Territory?---No.

Did you have a policy to achieve that aim whilst you were the Minister?---Yes.

Did it work?---Yes. And I would – can I – there’s a graph that I call my favourite graph. It is on the documents. I believe that my – my lawyer has – in possession of it. But there was a graph that was done as projected prison numbers in the year June 2010, which was the former government’s graph and it projected out prison numbers going forward. There are three lines on that graph. There is a line that says worst outcome, or the worst outcome, the most likely outcome, and then best possible outcome. If you then follow the plotted line on that graph, it actually shows that whilst there was a slight increase, the number of adult prisoners in – prisoners in the adult system were far below – far below the best possible scenario painted back in 2010. That line started dropping below the projected line after the change of government and in early 2013.

Well, can I make – just check that I’ve got this right. The numbers of prisoners did not go down?---There was a slight increase, but – and that is the - - -

But did the percentage of Aboriginal offenders go down in custody?---I suspect that – that – if memory serves me, that 85 per cent given a particular day, depending on who was in custody at the time, was the average prison population and that remained consistent throughout the period of our Government.

Throughout the period of your government?---And the Governments prior.

Throughout the period of the previous Governments; in this current Government’s rule - - -?---Yeah.


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- - - for want of a better term, you would accept that the incidence of Aboriginal incarceration in the Northern Territory is a national disgrace. What do you say about that?---My response to that is that the drivers of incarcerate – incarceration in the Northern Territory are – are in a part driven by federal government policy as well as Territory government policy.

There can be no doubt about that?---I’m being asked for an opinion here, sir. I - - -

Is it a disgrace? Is it a national disgrace? Is it a national issue of high priority?---It is – was certainly an issue of high priority for me, yes. Was I disappointed that so many people are in the custodial environment? Absolutely.

This is a problem where the Commonwealth and the Northern Territory need to act together, is it not?---The Commonwealth and the Northern Territory have tried on a number of occasions.

The need exists still, doesn’t it, in the context of this Royal Commission, before it occurred and now we’re coming to the end of it, it’s still a matter of national priority that the governments of this country deal effectively with Aboriginal incarceration rates in the Northern Territory?---I’m starting to question that proposition, because it’s been tried. The Federal Government dropped what, $10 billion into this jurisdiction during the intervention. We haven’t seen a result. In 1976, there was the introduction of the Aboriginal Land Rights Act. Mr Viner, who was the then-Minister in ’79 put out a public document at the time that said this would be the cure and end all of all these problems for Aboriginal people. We as governments have tried to support, in all sorts of way, outcomes for people who live in remote and regional areas and the result has been nil. In fact, I would say that the – the problems have become exacerbated because the levels of dependence are amplified beyond what they ever have been.

So you stated, in the immediate aftermath of the Four Corners show that you’ve discussed in your evidence and in your statement in particular, “The system has challenges, there’s no doubt about that, which is why the system has been so substantially improved in the last four years since I’ve had control of it.” That’s a quote on the ABC?---Yes, and that would

What - - -?---That was a reference specifically to the adult system where the Sentence to a Job, which even Commissioner Gooda has – has made positive comment about to me personally - - -

Mr Elferink - - -?--- - - - was making a profound impact.

The statement was a quote on 27 July 2016 on the ABC in the context of what was coming up - - -?---Okay.

- - - on Four Corners with clips where you could click onto the gassing incident, where you could click onto the incident where Dylan Voller was dealt with in the


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cell, and you were being quoted in that context, not in the context of an adult - - -?---Okay.

- - - policy. What - - -?---Those incidents surrounding Mr Voller, et al, were historical. Many of them predated my ministry; some of them occurred during my ministry. After the Vita Review substantial improvements were brought to bear - - -

What were they?--- - - - Within the resources that we had available.

What were the substantial improvements - - -?---Well - - -

- - - in the juvenile detention system that you can point to in the four years that your - - -?---Flushing toilets.

- - - Government operated?---Flushing toilets itself, improved schooling arrangement inside the Don Dale Centre, which was declared to be pit for purpose by Michael Vita, as well as number of the rehab courses that we were doing with the resources we had available. Frankly, what I would suggest is you – that this Royal Commission subpoenas the Four Corners, all six hours or eight hours that I spent with them, where I show them around things like the improved records and those sorts of things, as well as demonstrate to them the changes, the fundamental changes that had occurred. Was the new Don Dale perfect? No, it wasn’t. But what I didn’t have was access to 100 to $150 million for a new juvenile detention facility. So we had to make do. Mr Middlebrook tried very hard to improve the system, and I believe he did so, but to suggest that we weren’t making improvements, that Vita was somehow being ignored is just wrong. It’s been a conversation out there and I know that a number of journalists say nothing had been done. Well, that’s not true. Much had been done.

So Mr Elferink, if you could solve problems right now, by making appropriate recommendations?---Yep.

What type of juvenile detention facilities should be developed in the Northern Territory?---Okay. That’s a very good question, because it’s easy to point at Don Dale, and say that’s broken.

Yes?---But it engenders a new question.

But no one’s asked you that, so here’s your opportunity?---And I will take it. Because the question is: what is success? What does success look like? Now, one of the things I told Four Corners is that I would like to get rid of all my institutions, not have a jail, because we live in a community that doesn’t need one. If you – if that’s the measure of success - - -

But I’m asking about a real world solution?---No, no, no.


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This is your opportunity, in a pithy answer, to give pithy recommendations to this Royal Commission. What should this look like?---What would it look like - - -

Not airy-fairy and perfect?---No. Well, it’s not a - - -

Let’s get down to it, what should happen?---I want to deal with the issue that you’re presenting me with. It’s not a pithy answer.

Yes?---Volumes have been written on these issue and there ain’t no pithy answers.

Okay?---So I need to be able to deal with the question as it invites the answer. The answer is that – what does success look like? That depends on who you ask because if the recommendation is that you have a new Don Dale Centre, and it’s brand spanking new and you call it a whatever, but somebody will tell you that the fact that you have to build such a thing is a failure, then you’ve already failed at that point. Would I like to build a new Don Dale Centre? Yes, I would have liked to on many occasions, but the systems are more important. The support in particular, in those systems, are important which is why I focussed my attentions to try to improve those systems which had been widely reported, and the response to Vita are writ large, particularly in the ’15/16 annual report of the department. In relation to your question, yes, I would like a new Don Dale Centre; yes, I would like staff who are dependable highly trained motivated individuals who are passionately engaged with their job. Any recommendation that comes out of this Royal Commission will have that first as a challenge. Whether or not you can find staff for these places. In terms of child protection, what I tried to do was actually link child protection to the incarceration environment, and the resistance I got out of my Departments was extraordinary.

Can I ask you about one aspect of that answer: the interrelationship between child protection and juvenile justice and juvenile detention issues – unmistakably obvious?---Yes.

But in April 2015 there was a problem down in Alice Springs with kids throwing rocks. Do you remember that political issue?---Yes, I remember the issue. I wouldn’t be so cursory as to dismiss it as being merely political. It was a real problem and there was a real risk to the community.

I didn’t mean to suggest that it wasn’t an important problem just because it had political implications?---It was certainly an important issue.

But the response that you and the Chief Minister articulated publicly about that problem was to put, as it were, the child protection workers on the beat - - -?---Yep.

- - - with police and to take children off the families who were allowing their kids to go loose?---That’s not correct. What - - -


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What was it then?---What the problem was is that we had children at a very young age at large at night in Alice Springs, unsupervised, a danger potentially to themselves and to the community that they were in. What I was saying was that child protection workers should be available – in fact, would be made available so that when the police picked up a youth, and they had not committed an offence, then an assessment should be made as to whether or not that child was in need of care or was – was being, effectively, neglected because that child was at large in the streets at night. And that assessment should be made quickly.

One of the election platforms for 2012 was the establishment of boot camps; correct?---Yes.

And you did get one – at least one I think – up and running during the term of your government?---We have a physical institution at Loves Creek near Alice Springs that ran a number of the camps.

Alright. That’s what I’m referring to. Ms Cohen gave evidence here, earlier this week, that strict boot camp regimes have been assessed qualitatively in literature as being unsuccessful in that they don’t change behaviours or criminogenic need unless there’s some follow-up after the camps conclude. Do you agree with that assessment of Ms Cohen’s?---Depends on the boot – sort of model you’re talking about. There are any number of models available. I understand that Ballina has been raised in this particular thing, which is not a boot camp at all, but is still a camp of sorts. There is the Brahminy Foundation, which had its own issues, and, of course, Operation Flinders and ..... ran their particular models. Each is different. Certainly, there need – it would be ideal to have follow-up in every instance and I think our youth justice policy which was released started to attend to those issues of follow-up. But yes, these are all functions that families should do, not government. However, from time to time government is impelled to step up. But to think that government is a good parent, that’s a mistake.

The concept of a military style regime as a management strategy within juvenile detention centres themselves was also something that you considered when you were the Minister, was it not?---I recall that I had a good relationship with the rotational commander of the US Marines and a lot of those people in the US Marine Corp, even when I visited the US marine base at Camp Pendleton in California, a spoke to a lot of those guys, a lot of those guys had difficult upbringings, they actually find their way into the army, so what we did is we introduced the US Marine Corp to help do some exercises, and those sorts of things, not as a military style camp but to try and encourage these kids with the notion that they can be more than what they were. I’m going to get a bit personal here, but I have seen any number of people with trauma – young people in their lives, any number, including myself, and you can move beyond that if you’re given the right encouragement to do so. Was Don Dale an environment where that occurred? No, it wasn’t. Which is why it was disappointing to me.

So let me then ask you about trauma informed policy making. Are you suggesting that the US Marines and their participation in some limited program in the juvenile


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detention centre was likely to be an effective way to deal with significantly traumatised detainees?---I don’t know. But if one of them – one of them shared a thought that captured the imagination of one of those detainees that changed their life, it was worth doing.

In determining how to formulate a Government policies and what policies should be implemented in relation to such a fraught area, should there not be evidence before public funds are expended on the policies?---My position would simply be that evidence is useful and guiding, but not an absolute determinant of government policy.

Would you rather go on your gut instinct?---I would rely on evidence, but I would also rely on my own personal experiences and the experience of other people to reach out and make a difference. So rather than close Don Dale down and – and make it some sort of cloistered environment and separate from the world, I certainly would have encouraged people from the world to come in and have a positive influence. Whether – we were making changes in accordance with the Vita Review, asking the marines to come in and share a bit of their own personal discipline and their own stories and their own experiences was not in any way contrary to what we were doing. Was it going to be useful? I don’t know. But it was better to try something than nothing at all.

You were taken through the evidence that demonstrated that there were detainees in the BMU the day that you and the Chief Minister went on an option tour, sometime before the election, sometime in June I think, 2014. In relation to the BMU, you knew that those cells were unfit for purpose as you thought the whole of the detention facility was unfit for purpose?---Yes.

Right? You must have understood that juveniles kept in isolation for hours or days at a time in those cells were – was a problem that was likely to cause trauma to the child?---You’re assuming that I was aware for the times that they were being kept in. I was not. Certainly Mr Middlebrook had expressed concern, what I presumed were on humanitarian grounds, about the time that those kids were in BMU.

Well, what’s - - -?---And we were looking for an alternative which is why the CBU was turned to.

Well, I just want to ask whether you had even a sense of the dimensions of the time that people were being isolated in the BMU?---No, I didn’t, beyond what Mr Middlebrook expressed to me, but if Mr Middlebrook was concerned so was I, and I looked for options. The problem I understand was that if they weren’t in the BMU then they were going to escape.

That’s something I will ask you about in a minute. However, the Commission has received evidence that well before the gassing incident, in 2013 and in 2014, detainees were spending not just 72 hours or several multiples of 72 hours, but in some instances detainees were being kept for weeks, and in one case 39 days straight


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in the BMU. Did you have any idea, when you were the Minister, that young people were being held in solitary confinement in a black hole with no sink for that long?---No, I didn’t, because the – the prison management plans or the management plans around individuals are operational matters for the Commissioner and his staff. As I’ve said already, I didn’t intervene or interpose or place directives in relation to how individual people were looked after. It wouldn’t have been appropriate for me to even – to do so.

You would expect the operational imperatives to comply with the law - - -?---Yes.

- - - wouldn’t you?---Yes.

And did you know what the law determined so far as isolating juveniles?---Specifically, before the Royal Commission, no. I’ve certainly known about it subsequent to that time, but in any instance, until I had received any evidence that the law was being broken, I was satisfied that the system was being operationally run by the operational staff. That’s why the Commissioner has that role. They do the operational things.

Had you ever read the Youth Justice Act?---Yes. From cover to cover on a single sitting, no, but I’ve had a refer to it on a number of occasions.

Were you familiar with the provisions that related to putting detainees in isolation?---The provision – are you talking about 75 from memory?

No, I’m talking about 154(5)?---I will been – I would have read through those at one point or another, yes.

Okay. So you understood that, so far as the Act envisaged, that for a detainee to be kept in isolation, the superintendent had to order that for periods up to 24 hours and the Commissioner for periods up to 72 hours; right?---I would have been aware of it, yes.

So when Mr Middlebrook was expressing concerns to you about the length of time people were in those cells, did you believe that he was talking about periods of perhaps two or three days at a time?---Not that I recall. My concern was, as I said, when he expressed that to me, was about the notion of humanitarian grounds. The BMU was an – clearly an unpleasant place.

So you thought just to be the fact that they were there at all for more than a few hours was of a concern to Mr Middlebrook?---What I understood Mr Middlebrook to mean is that he wanted to run an institution which was humane and he wanted better results or better circumstances than he was – than he had. The CBU was becoming available, which was one of the reasons we looked at it. It was a brand spanking new facility.


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Yes. In the wake of the gassing incident you commissioned the Vita Report; right?---Yes.

And .....?---Well, Mr Middlebrook commissioned.

Whoever it was, let’s - - -?---Yes, okay. The Vita Report was commissioned.

- - - not split hairs about who’s responsible for it. It got done?---Yes.

And as a consequence of that, there was a need, it was seen, to develop a Youth Justice Framework; correct?---Yes. But that was also one of the recommendations from Carney and that was being worked on at the time.

But there was a special committee that was set up in the wake of Vita?---Is this - - -

.....?---YDRAG particularly.

YDRAG?---Yes. Okay, yes, I actually wanted that one set up, very much.

Yes. Now work continued on YDRAG for quite some time with the input, not just from your own department but from a magistrate, from NAAJA, from other stakeholders; right? A draft Youth Justice Framework was provided to the department that was very, very extensive. Do you remember the first draft of the Youth Justice Framework?---There was a Youth Justice Framework or youth justice policy being worked up by the Department which ultimately took to Cabinet, whether or not that informed the – was informed by the one that you’re referring to, I don’t know.

So I really wanted to ask you about changes to the drafts. Are you in a position to be able to talk about those?---No.

Did you see the drafts?---The draft report created by YDRAG, no.

Can I just ask about whether or not you can shed light on an aspect of this: in discussions amongst YDRAG, it was emphasised that the framework might reflect the need for restorative justice?---I wouldn’t be at all surprised.

The final form of the document made no mention of restorative justice. Can you shed any light on that?---No.

What do you think of the concepts of restorative justice?---I am familiar with the concepts, certainly Jared Sharp made a number of appeals to me over the years in pursuit of it. I am certainly – I have some reservations about how it’s rolled out, but if it didn’t find its way through the Department, then I didn’t know about it. I certainly know that Mr Sharp was a great advocate of it.

Yes. But - - -


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COMMISSIONER WHITE: Just in the interests of definition, Mr Boulten, because there are some people that might have a different view.

MR BOULTEN: Yes, your Honour. What is restorative justice?

COMMISSIONER WHITE: Could you just propose some elemental propositions to the content of the concept of restorative justice as NAAJA was promoting them if you would be so kind.

MR BOULTEN: Certainly.


MR BOULTEN: So concept focuses around using existing funding that would normally be applied to detention?---Mmm.

But shifting it into the community for community-based initiatives, normally worked up in conjunction with local Aboriginal people, coming up with Aboriginal – sorry, Aboriginal focussed customary initiatives that might be a more effective, cost efficient way of turning people around than detentions?---Yeah, I’m aware of the model. The model was – it was born in Texas if memory serves me primarily. I actually met one of the senators, state senator from Texas who was a great advocate for it, and funnily enough he was a Republican. He looked at largely through the lens of – looked at it largely through the lens of cost effectiveness of the system. You don’t build that new jail, then you put that money over there. In the Territory context, it would have had problems, but I wasn’t inherently against it. The problem is that you already have the expenditure in the youth justice facility. Which one were we going to shut down to pay for a – a youth justice facility? If we had shut down Alice Springs then the criticism would have been we were moving prisoners to Darwin, which I was criticised for anyhow.

Well, right at the moment?---So it’s a question of where do you find the saving to pay for the restorative justice?

Right at the moment the expectation is that Don Dale is not going to last that much longer, so then there will be a pool of money, won’t there?---No. Then they will have to build a new detention facility.

They have to build something?---Yes.

I wanted to invite you what that would have to be, but we haven’t actually got to that. And – but can I just move on?---Well, hang on .....

I’ve got a limited time so can we move to a different topic?---Well - - -


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Mr Harris might take this up with you and give you every opportunity to talk further about what should happen with jails and youth justice and so on. Could I move to a different topic.

COMMISSIONER WHITE: Mr Boulten has a limited timeframe for asking you questions?---Sure.

As do all counsel in cross-examination, so it’s not to shut you down?---Okay.

It’s so that he gets through his list.

MR BOULTEN: I just want to turn to this problem that developed after the young man stood up at a youth justice conference in September 2015 and talked about eating peacock poo and all the rest of it?---Mmm.

Mr Middlebrook reacted very quickly and angrily to what happened. You remember all of that?---Yes, I do.

So you know that I asked him and I asked Ms Cohen about whether they had heard anything like it previously. I want to ask you too?---No.

So could we have up on the screen, please, exhibit 235. Now, this is an email that was sent to the Royal Commission from an employee of Territories Family, and this person recalled that, and you see it in the second paragraph of the email, that about 8 May 2015, Ms Bradford and others briefed you on allegations that a child had made about possible harm that occurred whilst he and others were in Don Dale. Do you see that?---Yes.

Do you remember such a briefing?---I remember a – a number of briefings on kids in the child protection system, so much so as that I’m not entirely sure which this one refers to, but - - -

Okay. So this is a about an incident or a child in Don Dale?---Yes.

And it’s being brought to your attention by a very senior public servant in the child protection system?---Yes.

Okay. So this is a bit of an unusual one, you would agree?---Yes, but I – it’s – I’ve been briefed on a number of matters in front of the child protection system.

About Don Dale?---There were – my general policy position is anything that happened in Don Dale was not in any way excluded from investigation from a child protection point of view. So if there was a child protection issue that came out of Don Dale it should be investigated accordingly.

This was them coming to you, not you referring to them. This is the child protection system - - -?---They came to me on a number of occasions with a number of issues.


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About Don Dale?---Even about Don Dale. There were a number of issues that arose out of Don Dale ......

Okay, so - - -?---I’m just trying to remember which one you’re talking about.

Okay. Could we – could we look at exhibit 64.258, please?---Can I also say – is that often these briefings were limited in their detail.

Sure. I’m not - - -?---Okay.

- - - going to contest that. This is the public servant’s notes of the meeting, at least the first half of the page, where the note seems to suggest that on the third line down someone, presumably you, said it was correct to hand over and that any staff is to talk to the police, and is to brief Ken, all staff is to cooperate. Do you see those notes?---Yes, I see the notes.

Now, were you told that a child had made allegations that prison officers bashed inmates out of the view of cameras?---No, I don’t have a recollection of that being in the briefing.

Were you told - - -?---If there – an issue of an assault are raised at any time the standards instruction that I would defer to would have been, if there is a matter of criminal responsibility, it should be referred to the police, and I note that that seems to be the – I don’t know anything about these notes. Suffice to say that it says any staff is to talk to the police. I presume that would have been a reference to any such instruction.

Were you told that workers would encourage detainees to assault each other and give them a reward for doing so?---I have no recollection, no.

Were you told that a Youth Justice Officer was videoing children who were doing intimate acts?---I’m sorry?

At any time?---Are you suggesting sexual conduct between - - -

Masturbating – masturbating?---Between – no. The only thing I was aware of was an investigation into a detainee being videotaped in a shower and I said to my staffer, who was Mr Craig Jones at the time, “Has the matter been investigated?” And he said “Yes”.

When did you hear about that?---I can’t recall. It would have been about a year ago when – you would have to check when Mr Jones was working for me. It was the latter part of my ministry.

In the wake of the – the exhibits can go off the screen – in the wake of the young fellow standing up and making allegations at the youth justice conference, did any of his allegations sound familiar to you?---No.


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Not at all?---No.

Did you ask Mr Middlebrook whether he was aware of any of these allegations?---He indicated to me that he was not aware of them.

Entirely not aware?---That’s right. In fact, I understand - - -

Didn’t have a clue?---That’s what I recall him telling me.

He did not tell you for instance it seems to be the sorts of issues that were brought to our attention by Ms Twyford – sorry, by Ms Bradford back in May?---No, he didn’t say that.

The press got on to this, and they made inquiries of your office suggesting that the police had been investigating the very issues that the boy was talking about, and that they had been doing so since May; did you know that?---That would have been consistent with the general instruction that if a matter of criminal – criminality came to notice it was to be referred to the police.

So were you told that the allegations the boy had made were the subject of a police investigation?---The specific issues that came up, from time to time, I didn’t inquire into. What I inquired into was, “Are these matters being referred to the police?” If the answer was yes, I was satisfied that was being done. I’m not at all surprised to hear the police were investigating this.

What I suggest to you, that certainly by two days after the youth justice conference, your office was aware that there had been a police investigation ongoing since May. Do you accept that?---That’s quite possible, yes.

And you probably knew that too, right?---At the point – after the issue was raised, I imagine that we would have contacted the police to say, “Is this being investigated?” At which point the answer would have come back.

So I want to go to a meeting that took place in your office on 9 October 2015 when Priscilla Collins, the chief executive of NAAJA attended with Jonathon Hunyor?---Yep.

The principal legal officer, and Jared Sharp, and at that meeting Mr Middlebrook came and you were very hostile towards the NAAJA representatives; right?---I was certainly firm with them because they had engaged in a number of conduct which, in my opinion, wasn’t appropriate. Mr Middlebrook had already complained he felt he had been set up, but moreover than that I asked Ms Collins whether or not she had reported the matter in accordance with the law of the Northern Territory. She said, “No, I simply assumed it would already have been done,” at which point I reminded her of her responsibilities in relation to the legislation of the Northern Territory. Now, if she interpreted that to be hostile, then that might be the case. I was certainly - - -


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So what – okay, go on?--- - - - quite straightforward with her.

What you did when they arrived at the meeting was to speak about how NAAJA was inappropriately supporting Federal Government policies that encourage welfare dependency?---I had a conversation with Mr Hunyor in which we were talking about a number of policies. I have often been critical of NAAJA for not sticking to its core function of providing legal services and whilst it has got source – funding sources from other places to run other social programs it is my belief that NAAJA should retain – restrain itself to the process of providing legal services.

They shouldn’t be – they shouldn’t be an advocate in the community even when your system is falling off the rails; is that what you say?---What I said to Mr Hunyor is that, “If you feel so strongly about those issues then what I would recommend, Mr Hunyor, is that you seek pre-selection with a political party and stand on that platform and get elected.”

So only politicians can criticise you? Is that the - - -?---No, I’ve never suggested that at all but that doesn’t prevent a politician criticising a lawyer, either.

Are you of the view, and it is current in some quarters, that organisations like NAAJA or community legal centres should not engage in advocacy outside the court?---I - - -

Are you of that school?---I am of the view that an organisation which is publicly funded should stick to its core function.

So you agree with the proposition I put; is that right?---Yes. So much so that I would say that I supported NAAJA directly with the Federal Attorney-General to make sure that it received proper funding for its core function.

So, Mr Elferink, if it wasn’t for critics like NAAJA do you think that the youth justice system in the Northern Territory would be sailing nicely or do you think that there would be a worse problem than existed when you were the Minister?---As far as I’m concerned we were improving.

MR HARRIS: I object, Commissioners. That’s a question with the greatest of respect which has no forensic or probative - - -

MR BOULTEN: Well, I will withdraw the question .....

COMMISSIONER WHITE: I think it was rhetorical rather than - - -

MR BOULTEN: It was indeed. And I’ve copped three messages, so I’ve got to stop. So I will leave it at that.

COMMISSIONER WHITE: Have you got one key question?


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MR BOULTEN: One more.

COMMISSIONER WHITE: Yes, Mr Boulten. You’re still on your - - -

MR BOULTEN: What I suggest to you is - - -

COMMISSIONER WHITE: And that’s a reward for going first yesterday, Mr Boulten, as well as the extra minutes.

MR BOULTEN: I think I got – that had its own rewards, Commissioner.

COMMISSIONER WHITE: It did.

MR BOULTEN: So Mr Elferink you know, don’t you, that what that young fellow said in the youth justice forum turned out to be absolutely true. You know that, don’t you?---What I know is that there was a police investigation, and I don’t even know if anybody was charged arising out of that. Perhaps you can enlighten me.

COMMISSIONER WHITE: But that’s not the question you were asked?---Okay. In terms of the question itself it would appear to be true. I don’t think I’ve seen any evidence to the contrary.

MR BOULTEN: You’ve seen evidence in this Royal Commission that suggests that Conan Zamolo was taking a phone and was videotaping kids?---As I said, I haven’t followed all of the evidence of this Royal Commission.

You couldn’t have missed that?---I certainly saw it in the media and it was widely reported.

So when you got cranky with Priscilla Collins and Jared Sharp and Jonathon Hunyor in that meeting do you think the emphasis was more akin of shooting the messenger than actually someone delivering an important problem to - - -?---Not at all. In fact, I had invited NAAJA and a number of organisations to be intimately involved through things like YDRAG to help me improve the system. Unfortunately, as my Commissioner for Corrections felt at the time, he felt he was being entrapped by the very organisations that we were appealing to assist us to improve the system. That’s what YDRAG was about. Mr Sharp, in that particular meeting said that he hadn’t been supplied documents, 10 minutes later was quoting from the documents, he said he hadn’t been supplied. As far as I was concerned, that was not helpful either. What I was hoping from NAAJA and I had tried very hard to develop relationships with NAAJA and CAALAS over the years to see – being fully aware of their criticisms, to say, “Come and help us.” That’s what YDRAG was about. YDRAG was not successful in those goals, which is a shame, because what I wanted from YDRAG was assistance on how to improve Don Dale and the focus on Don Dale, which is what I wanted from YDRAG wasn’t there and I’m disappointed that it wasn’t there.


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COMMISSIONER WHITE: Thank you, Mr Boulten.

MR MORRISSEY: Commissioners, please, Mr Lawrence is next. It’s apparent that we will sit late. May I make application that we do sit late, first of all.

COMMISSIONER WHITE: Granted.

MR MORRISSEY: And therefore the Commissioners consider whether we take the break now or shortly. Mr Lawrence is ready to commence, but he will commence later if that’s what you wish to do.

COMMISSIONER WHITE: Perhaps a short break, because I see it’s just after 10 to 4 and it’s sort of at the halfway mark and that might be useful. We will just take a short break now, so 10 minutes or so, Mr Elferink?---Thank you ma’am.

ADJOURNED [3.53 pm]

RESUMED [4.11 pm]

<CROSS-EXAMINATION BY MR LAWRENCE [4.11 pm]

COMMISSIONER WHITE: Thank you, Mr Lawrence.

MR LAWRENCE: Thank you.

Mr Elferink, I’m representing a juvenile that goes by the title AD?---Mr Lawrence.

I will get a note to you, if I can, which reveals his identity. While that’s being going on, let me proceed with questioning you. You were in politics here in the Territory for 19 years; correct?---No, I was in politics in the Northern Territory for 16 years. There was a three year hiatus between being the member for MacDonnell and the member for Port Darwin.

Alright. In the interim you were involved in politics?---I was a staffer on the fourth floor, yeah.

Okay. And that – s that was in ’97 to 2016. No. I was a staffer on the fourth floor from - - -

No. I mean the entire duration of your .....?---Yes.

Yes. Alright. And now, during that period one thing that was a given for both sides of politics was that there has developed, in Australia and elsewhere, a community

.ROYAL COMMISSION 27.4.17 P-3164 J.W. ELFERINK XXN©Commonwealth of Australia MR LAWRENCE

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expectation that there should be a toughening up on crime?---I think that’s a fair assessment. There is a community expectation that crime should be dealt with.

And more respect given to the victims of crime?---Yes, indeed.

And a corollary to that, a consequence to that, is that being tough on crime is a vote winner?---It is certainly something that both sides of politics are sensitive to in terms of dealing with the electorate, yes.

And - - -

COMMISSIONER WHITE: You agree with the proposition I take it then?---Yes. I – perhaps I bridle a little bit at the crass nature of the representation, but the sentiment I agree with.

I don’t think you can be too dainty - - -?---Okay, thank you.

- - - about your feelings about this, Mr Elferink?---Alright. Thank you, madam.

MR LAWRENCE: Well, let’s turn the coin over. Would you agree likewise that being soft on crime would be a vote loser?---Yes.

And that general principle is applied across the board, including with juveniles?---Yes.

Even although, as we all know from our respective subjective experiences, that that flies against, to many intents and purposes, a lot of the principles and learning and knowledge that we know about dealing with juveniles who are in the justice system?---Yes.

And that of course is, in the main, if I can summarise it, is you try and place rehabilitation before punishment and punity?---In the juvenile domain, particularly.

And one of the rationales for that, based on empirical evidence and knowledge is that kids are a lot easier to rehabilitate than your adult criminals?---I’m not sure if – I will take your – I will accept it on face value.

Yes. And that ethos, if you like, applied throughout the period when you were Minister for Corrections?---In terms of rehabilitation across the Corrections environment, yeah. I wanted to see rehabilitation.

Yeah, no, no. The ethos I mean as in being on tough on crime is a vote winner, being soft on crime is a vote loser, even although with juveniles it goes against the grain which is in the main rehabilitation is a more productive better way of dealing with kids?---In terms of answering what’s tough on crime I believe that very positive programs like Sentenced to a Job were tough on crime because it did require people who had been criminals not to just serve out their time passively but make a


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constructive effort, often for the first time in their whole lives, to their own rehabilitation. So that’s an example of being tough on crime with a rehabilitative attempt attached to it. Tough on crime requires policing and it requires the results of that policing to be governed. One can amp up one area; one then has to necessarily amp up the other area. But two are linked not directly, but generally.

Alright. Well, let me ask you this: when you came into the portfolio as Minister for the crime – for Corrections, it was a Department that had a lot of problems?---Yes.

And you knew that?---Yes, I was concerned particularly with Don Dale. The new jail, of course, was still under construction and there were problems with the contracts there as well, in terms of the rollout and of course the adult facilities were under a lot of pressure.

And those problems were systemic?---Those management issues were systemic, yes.

Macro and micro infrastructure and staffing?---Yeah.

They were all areas where there were significant problems - - -?---Yes.

- - - in existence when you took over as the Minister?---That is correct. The former Government, to their credit, had made efforts particularly in the – in the design of the new Holtze facility. It’s not a design I agreed with, I don’t think it was appropriate for a number of reasons. Without entering into that, they were attend to it in the adult environment, yes, certainly. The juvenile environment, of course, was Don Dale was largely unimproved during – during that time and, admittedly, the first two years of my ministry.

And I think you gave evidence earlier this morning that these problems are not about bricks and mortar, but more about professional staff developing - - -?---Systems.

- - - correct, appropriate relationships with the detainees, the clients, whatever you want to call them. That’s more important than the building that they’re kept in?---Systems, yes.

You’d agree with that?---Yes.

And, of course, that requires training, qualifications, experience?---That’s right.

And there was a real shortfall in that as far as juvenile justice was concerned?---Particularly in juvenile justice, yes, I would agree.

COMMISSIONER WHITE: Mr Lawrence, I’m going to interrupt you here because Mr Morrissey did traverse this whole area of training, and got pretty good agreement I think with Mr Morrissey with the propositions that he was putting. You do not have an indefinite amount of time and there must be some specific questions that relate to your client that you want to ask more specifically than that.


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MR LAWRENCE: Right.

Now, as a Minister, you owe each of those detainees a duty of care?---Yes. Indirectly, yes.

Alright. And it was your responsibility to provide them with a safe, protected, humane structured environment?---Yes.

And you had to provide them with staff that were qualified and up to the task of dealing with them?---Yes.

And one of the problems that faced you when you came into it from the previous government was that you didn’t have that?---No, I didn’t.

There was a lot of casual work, more than permanent work, and most of them weren’t qualified or trained?---Yes. I was very disappointed in some of the things that were – that were around and continued to be there for the first two years of the ministry.

And although the liberty of these children is deprived their humanity is not; you accept that?---I would agree that that’s an important proposition.

And the fact of the matter is that the guards that were looking after these children were simply not up to the task, a lot of them at least?---I had my reservations about the quality and training of staff for pretty much the whole first two years of my ministry, yes. I’ve made that clear.

And what we’ve discovered now in this Royal Commission is that a lot of them weren’t just unqualified and untrained and inexperienced: some of them were quite abusive to the children that were in their care.

MS BROWNHILL: I object to the proposition that a lot of the guards were abusing children. That is not the state of the evidence.

MR LAWRENCE: Some of the guards, if that keeps the Solicitor-General content, some of the guards were, in fact, abusing some of these children?---Yes.

Children - - -?---Certainly acting in an inappropriate fashion, there’s no doubt about it.

Well, you don’t think that’s an abuse, you just think it’s inappropriate to follow a kid around filming him while he’s urinating and saying to him, “What are you doing now you fucking gay dog?” You think that’s inappropriate, rather than abusive, do you?---It is certainly inappropriate and it sounds like a criminal act.

Right. And similarly the same guard going into those children’s bedroom while they’re trying to sleep, under the sheets, filming them with his mobile phone and


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saying, “Which one of you wants to suck my fucking dick?” Is that abuse or is it just inappropriate?---It’s abuse and inappropriate.

Right. And they were your staff?---They were employed, yes, by the Department. I didn’t employ them directly. The Minister is not the employer. They are employed under the Public Service Act.

Alright. But you’re responsible for their actions towards the kids who are in your care?---Yes, and had I known that those things were occurring they certainly would have been investigated, as I understand that they were ultimately investigated, those that were known, which was consistent with the protocols of my – my ministerial responsibility. I needed to have a policy in place that where criminal conduct was engaged in, or suspected to be engaged in, then that – those matters were referred to the police for investigation which was done, as far as I know, on all occasions.

Thank you. And, of course, your evidence here – you would have us believe that you didn’t know any of this was going on?---That’s right.

Right. And what we’ve discovered here in the Royal Commission is that that was going on and more, including encouraging kids to fight, film the scene, send the film out around social network, have a kid encouraged by a guard to eat bird shit and film that. This was the kind of thing that was going on at Don Dale while you were the Minister?---That’s right.

Do you accept that?---Yes.

And, of course, a consequence of that inevitably was that the relationships between the Youth Justice Officers and the kids that were being subjected to that was deteriorating?---I would accept that.

The kids resented it?---I imagine that they did.

The kids were confused by it?---I imagine they were.

These kids are damaged kids, are they not?---Yes.

And the last thing they knew – they need in a situation such as this in a facility in Darwin is to be treated by guards in a manner such as this?---I agree.

And it’s really hardly surprising that some of these kids started playing up against the treatment that was being meted out to them, is it?---I can’t place intentions into the minds of the kids, but I can imagine that they weren’t pleased with what was going on and that there was a sense of pushback.

Well, you be them?---Mmm.

MR HARRIS: I - - -


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MR LAWRENCE: You be 14 and have that done to you.

COMMISSIONER WHITE: Mr Lawrence.

MR HARRIS: I object, Commissioners. First of all, the evidence is from Mr Elferink, he wasn’t told any of this at the time, so at best this is a retrospective evaluation of something which has been the subject of evidence already and lengthy submission. Now, other than just being abusive itself, it serves no other purpose as a question, in my submission.

COMMISSIONER WHITE: Mr Lawrence, I don’t think it is helpful to us - - -

MR LAWRENCE: Alright. Well, I won’t ask it then.

COMMISSIONER WHITE: ..... to go down that path. Perhaps just ask some more specific questions. These are – they’re good venting sorts of observations to make, but perhaps be a little bit more focussed with the questions. Thank you.

MR LAWRENCE: Now, while this is going on – and you say you didn’t know it was going on – as it happens the Department of Corrections is actually becoming the laughing stock of Australia by virtue of the fact that there’s virtually an escape from the prison of Don Dale literally one a month. That’s what was going on at this period in time, wasn’t it?---Well, I don’t agree with your assessment about – your assessment but certainly there were a number of escapes. They were of concern to me.

A number of escapes?---Yes.

There were 35 escapes in 18 months?---Mmm.

Have you ever heard the life of that in the history of the Northern Territory Department of Corrections prior to you being the Minister?---There have been a number of escapes over the years.

Anything the like of 35 in 18 months?---The running of those jails were a matter for the Commissioner. I certainly was concerned about it. There’s no doubt about it. I was concerned about the safety of Territorians.

Look, you were a police officer for years before you entered politics. You were here in the 80s and the 90s, you remember the escapes that we experienced then, and they were negligible, weren’t they; that’s the truth?---They were – that’s not true at all. There were a number of escapes we quite regularly had to deal with as a police officer back in the 80s, escapes from various institutions. Without trawling through the job cards as they were at the time and noting them for you, we were dealing with escapes on a regular basis.


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COMMISSIONER WHITE: Mr Lawrence, you should rein this in. It’s interesting - - -

MR LAWRENCE: Right.

COMMISSIONER WHITE: I’m not sure that .....

MR LAWRENCE: Well, the point I make – the point I make is this, and I put it to him: the fact that you’ve got so many escapes, and I continue to persist that there’s a lot more than there have ever been, means that your government doesn’t look like it’s exactly being tough on crime?---That is an opinion; I disagree with it.

Now, in August of 2014, where were you?---On what particular day?

Well, the month?---I was in Darwin for most of it.

You were in Darwin?---I would have to check my diaries to make sure. I mean, I travelled a lot as the Minister.

Right. But you were around when there was the escape on 2 August?---I recall – I think I was, yes.

You would have been advised about it if you weren’t here?---Certainly would have been advised about it.

And five children escaped and got out into the streets of Darwin and they were eventually caught after a couple of days; right?---Mmm.

And they were brought in and where were they placed?---As far as I know now the BMU.

Right. And how long were they placed in there?---From evidence I’ve heard from the Royal Commission 17 days.

And did you know that while it was going on?---No.

You knew they were in there?---No. What – the evidence I gave earlier is that I understood the Department controlled them. I certainly was aware later on when Mr Middlebrook raised the issue, he was concerned about kids in the BMU. He told me later on that the – and this is during that period, that the BMU was the only set of cells capable of holding them at Don Dale. If they weren’t in the BMU, he said to me, they would escape again. They said they would do so.

Right?---We know from the experience on 2 August they had the means and the capacity to do so.


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Alright. Right. So you knew they were in there. You were advised they had to remain in there, because they were a security threat, and I gather Mr Sizeland made a recommendation on 6 August that the best place for them in the future would be Berrimah prison. Do you remember that?---I don’t remember Mr Sizeland raising that as an issue. I remember that Mr Middlebrook brought to me the potential to use the CBU at – it’s not at Berrimah, I should say, at Holtze. I’m not sure if we’re having the same conversation all of a sudden.

Alright. Look, you were aware that the BMU had never been used like this before; is that your evidence?---No, I don’t know how the BMU was traditionally used. Once again, the operational – the running of a jail, I left to the experts of how to run a custodial environment. I – beyond the police watch house, I have never run a custodial environment. I wouldn’t claim to be an expert in the field.

Well, did you apprise yourself of the situation in relation to where these five escapees were being held and for how long and what the conditions were at their end and also the legality of the scene?---The comments to me by Commissioner – try that again – the comments to me by Commissioner Middlebrook in relation to him being concerned about how long the kids were in the BMU was the – the alarm bell, if you like, that he was concerned and I said, “Well, what’s the next step, what do we do?” From that the CBU or the notion of the CBU came up.

Alright. But meanwhile they’re still sitting in the cells in the BMU?---Yes.

You must have been concerned about the conditions that they were experiencing in the cells?---Mr Middlebrook was concerned and, as I said, if Mr Middlebrook was concerned so was I.

Right. And did you find out what the conditions were?---I knew what the conditions were. As I said, I had visited the BMU; I knew what the BMU was like.

Alright. And you’re aware that the international instruments that apply to the Northern Territory, as well as the Youth Justice Act?---Yeah. In terms of the – are you talking about the Beijing protocol or the Mandela protocol?

Yes. That’s right. The protocol?---The Beijing protocol.

Yes, the Geneva protocol, the Convention for the Rights of Children?---Sure.

And there’s also common decency, I take it, that comes into this when you’ve got children in a cell - - -?---Yes.

- - - for an extended period of time. That influences you, does it?---It does influence me, yes.

Alright. Well, my client’s AD. Have you got that note?---Yes, I have.


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Do you recognise him?---I recognise the name.

Did you know him?---No.

Had you ever met him?---Not that I recall.

Did you know anything about his family?---No.

Did you know that he was 14 when he was in the BMU?---No.

He’s one that you describe as the worst of the worst?---Yes.

Do you know what he was in for?---I have no idea.

No idea?---No.

There has been people in juvenile detention for homicides and rapes in the past, haven’t there?---Yes, there have. As far as I know – I’m not sure about the Northern Territory in relation to homicides, I would have to go back and check the records. Sexual crimes .....

Well, take it from me there have been?---Okay.

I’ve represented them. None of these kids were charged with anything remotely as serious as that. Were you aware of that?---No.

Alright. And were you aware that AD was in that cell for 23 out of 24 hours a day?---No.

Were you aware that in that cell there’s no air conditioning or fan?---Yes.

Were you aware that in that section and in that cell there was no natural air or ventilation?---Yes.

Or light?---Yes.

Were you aware that, in that cell that he was in for 23 out of 24 hours, there was no hygiene available for him in that cell?---I wasn’t aware that hygiene was withheld. I understand that there is a shower in the general facility of the BMU which is the shared - - -

Courtyard?--- - - - Courtyard facility.

That’s right?---Yes, yes.

That’s what he got when he got his hour out?---Mmm.


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A shower in the public area of the courtyard, no screen, no privacy, the other kids can sit and watch him from their cell, and then he goes back in his cell on his own. You were aware of that?---I understood that’s how the system works. Physically, the layout would suggest that’s how it worked.

Right. And so if he goes to the toilet – there’s no toilet steel on these toilets, you know that, don’t you? They’re just steel?---Yes.

If he goes to the toilet it’s on CCTV, so it’s not private, and when he goes to the toilet he can’t wash hands after he has wiped himself. Are you aware of that?---Yes.

And were you aware of – he got three meals a day in that cell, and he had to eat them in that cell?---I wasn’t aware of that until the Royal Commission.

Alright. Well, that was the situation, so when he had a meal he couldn’t wash his hands before he had it. Were you aware of that?---No. I suppose that’s a logical consequence of the shape and structure of the BMU.

And he’s kept in there for 17 days, 16 nights and 17 days. That’s almost three weeks. He was 14 years of age?---Yes.

He’s also not allowed any company. So when he gets out for his hour shower, he doesn’t get out with a couple of other lads so they can say, “Who won at the football, or how are you travelling in cell 3” or any of that. No company. Are you aware of that?---I wasn’t aware of it, but it happened, I understand.

Were you aware, Mr Elferink, former Minister of Corrections responsible for this 14-year-old boy, that every day he was in there he asked every prison officer he could, “When am I going to get out?” Did you know that?---No, I didn’t.

And are you aware when he asked that question he got the uniform reply, from every one of them, that they did not know that he was going to get out?---Once again, I didn’t snow.

Well, that wouldn’t surprise you though, would you, because nobody did know when he was going to be released from this condition, did they?---As I said before, the operational management of prisoners was an operational issue for the prisoner and his staff.

MR MORRISSEY: That’s it, time.

MR LAWRENCE: I’ve got a couple of other questions that need to be put here.

MR MORRISSEY: Well, that may be, but how long?

MR LAWRENCE: Well, look, I’m resisting this. This has to be put, and - - -


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COMMISSIONER WHITE: Yes, Mr Morrissey.

MR LAWRENCE: With the greatest of respect - - -

COMMISSIONER WHITE: Mr Lawrence.

MR LAWRENCE: - - - it may well have been covered by Mr Morrissey but I’m not here to cover areas, I’m here to interrogate the witness on behalf of my client and his family.

COMMISSIONER WHITE: It’s very strong, Mr Lawrence, but at the beginning when you were spending a lot of your time - - -

MR LAWRENCE: Well - - -

COMMISSIONER WHITE: You were wasting it. You can have five minutes to put the rest of your questions as an extension.

MR LAWRENCE: Alright. Now, those conditions that you’re now aware of, you would agree, are inhumane and barbaric?---They were certainly inhumane.

This is Australia, 2014?---Mmm.

Have you ever heard the likes of children being subjected to conditions like that - - -?---Yes.

In this country - - -?---No, not in this country.

- - - in 2014?---I’ve certainly heard of barbarity towards children and I – my own mother was in a concentration camp for four years, her brother died in that concentration camp. Those are the barbarous things that occur in other countries. We had a duty to the criminal law in first instance in the Northern Territory, which I insisted upon. We had a duty to the – improve the system in accordance with the Beijing Protocols which I insisted upon. The reason I had the Vita Review done and made public – there was no requirement to make the Vita Review public – was because I wanted to bring pressure on Government to improve the system. I asked NAAJA to asks me. When the Vita Review was called, NAAJA wrote me a letter. They didn’t talk about barbarism at all.

Well, never mind NAAJA. Never mind – what you did, what I’m putting to you is you did nothing?---Well, that’s wrong.

You did not effectively fix any of this up?---Well, you’re completely wrong.

Well, tell that to AD because was in there for 17 days?---Well, I - - -

And because of you – you were the Minister?---Well, that’s – that’s absurd.


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MR HARRIS: I rise to object because this is a Royal Commission and a Commission of Inquiry. It’s not an occasion for the purpose of my learned friend yelling at any witness just because he feels like it where the witness is plainly trying to respond to his questions.

COMMISSIONER WHITE: Yes. That’s a well taken point. Mr Lawrence, there’s no jury here. You might say that your clients are watching it on livestream. Well and good. But courtesy still requires a temperate approach to questioning.

MR LAWRENCE: Well, these conditions that you now know he suffered under means that you have failed disastrously as a Minister for providing him with proper care and protection .....?---I reject that proposition. What I did as a Minister is that when the enormity of some these issues came to my attention I moved to fix them, and within the resources that were available to me I did so.

Okay. Now, you told us earlier that you described the cells that were beneath the Local Court as dungeons?---That is correct.

Well, they’re a lot better than AD suffered, aren’t they?---No, they are disgusting.

Wait a minute, the kids that were in the cells under the Local Court had one big difference: they were in there for a couple of hours and they knew they were going to get out and put in a van and turned back to a civilised detention. That’s the difference, isn’t it?---The issue that was raised in relation to the Local Court cell was the most pressing and certainly the one that there was the most noise around, particularly the Chief Magistrate at the time, Hilary Hannam wanted them fixed. The other problem I had with kids in the court cells is that they were effectively sharing the same space with adults who would make lewd comments to the girls inside those cells.

..... Local Court conditions, we can consider that as a fact. Mr Elferink can you answer me this: do you think - - -

COMMISSIONER WHITE: Mr Lawrence, six minutes has elapsed since you were given a five minute extension. The rhetoric is using up the time, and you’ve used it up.

MR LAWRENCE: Well, what’s using up the time, with the greatest of respect, isn’t just rhetoric. It’s answers that go on and on and on forever, much of which is not responsive to the questions that are put. If you want to calculate what’s taking up the time, that’s what we will discover here, and that’s where my time is being eaten up by. And I do seek to put a couple of other points.

COMMISSIONER WHITE: Well, could you do them concisely. If we’re to talk about length your propositions, rather than your questions, are extraordinarily lengthy, Mr Lawrence. That is most of the problem.


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MR LAWRENCE: Okay.

COMMISSIONER WHITE: Now two questions. I’m sorry to be doing this and it’s not pleasant for any of us to be like this.

MR LAWRENCE: No.

COMMISSIONER WHITE: You just need to focus. Other people’s time is being eaten in when you indulge yourself in this way.

MR LAWRENCE: Right.

Once the gassing incident happens, the decision is made to put the kids – well, they originally go to B Block for the night at least, or maybe a couple of nights, and then they go to Holtze?---Yes.

Then the decision has been made by the government that they’re going to go – you’re going to reopen Berrimah, you’re going to shut down Don Dale and reopen Berrimah; right. I want to ask you about - - -?---To open Berrimah as a youth detention facility, yes.

Well, what I suggest to you is: why didn’t you just upgrade Don Dale?---Because the upgrades would have required things like plumbing under concrete floors. There was three tonnes of wood in the women’s section – in the female’s section which merely burnt down. There was no toilets in the dorms. To plumb out the dorms with toilets would have been a far more expensive exercise.

Well, I disagree with that, with respect. It would have only cost you about 4 million to upgrade Don Dale?---And to adopt the Berrimah – the old Berrimah was, at the time, an $800,000 forward work.

So the rationale, you say, is mercantile: it’s $3 million. Rather than upgrade Don Dale with what was required you’re going to reopen a derelict, condemned adult jail and put children in it?---The final product, according to Mr Vita, was fit for purpose.

COMMISSIONER WHITE: Right. Thanks, Mr Lawrence.

MR LAWRENCE: Well - - -

COMMISSIONER WHITE: No, I’m going to ask you please to resume your seat. If there’s any time before 6 o’clock when your colleagues have finished their questions, then you can ask some supplementary questions. Thank you. Thank you, Ms Graham.

<CROSS-EXAMINATION BY MS GRAHAM [4.40 pm]

.ROYAL COMMISSION 27.4.17 P-3176 J.W. ELFERINK XXN©Commonwealth of Australia MS GRAHAM

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MS GRAHAM: Mr Elferink my name is Felicity Graham. I act for the Central Australian Aboriginal Legal Aid Service?---Ms Graham.

Commissioners, I understand that I have been given 10 minutes in addition to what I had previously been allocated?---That is – yes. In the spirit of parity with Mr Boulten.

MR MORRISSEY: I can confirm that because we did not go to certain issues concerning the Alice Springs .....

COMMISSIONER WHITE: Yes, I was being silly to say that. I understand that there is a whole lot of area relating to Central Australia that you wish to cover that hasn’t already been covered.

MS GRAHAM: Yes.

COMMISSIONER WHITE: Yes, certainly.

MS GRAHAM: And it may be that I need to agitate further on that, but I will - - -


MS GRAHAM: - - - commence.

Mr Elferink your role as Minister was to ensure that within your portfolio of responsibilities the citizens of the Northern Territory enjoy the appropriate level of service from government; is that right?---Yes. In – within budgetary constraints, yes.

And fundamental to your role as Minister for the various responsibilities that you had was to ensure that government resources were expended in a way that achieved equity across the Northern Territory when any service was being provided?---As far as possible, yes.

And so where there is a greater need in one area of the Northern Territory, it’s incumbent on the government to spend more money to put those citizens on an equal footing. Do you agree with that?---As a general proposition, yes. However, there are exceptions.

When you first commenced as Minister responsible for Correctional Services, which included youth detention, you visited all of the facilities where either adults or children were housed; is that right?---Originally visited them all, as well as repeat visits. I think I visited every Corrections institution a number of times during my ministry.

And when you toured the detention facilities in 2012 you were disturbed at the state of the facilities; is that correct?---I was underwhelmed, to be kind.


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You used the word “disturbed” in your statement; do you resile from that?---No, not at all.

The visits that you conducted in happenings included both the Alice Springs Youth Detention Centre which was set up at the old adult – I withdraw that. At the adult correctional facilities?---Yes, on – outside the main fence but it is certainly there at the same location.

And did you also visit Aranda House?---Yes.

And what I want to suggest to you, as a general proposition, is that in many ways the children from Central Australia in detention, during your period as Minister, received substandard service provision in comparison to children in detention in Darwin?---No. I wouldn’t agree with that.

The facilities in Alice Springs were poorer, as a general proposition, than in Darwin?---No, I wouldn’t agree with that. Certainly they weren’t good, but nor was Don Dale.

There was a greater degree of casual staffing, less senior staff and poorer training in Alice Springs than compared to Darwin?---I – once again couldn’t be certain of that. I don’t know about the individual training of employees or whether they were part-time or full-time. The records would bear that out. I couldn’t have asserted one way or the other.

You knew that staffing problems were plaguing the Alice Springs Youth Detention Centre from its very opening in 2011?---I knew that there were staff problems both in Darwin at Don Dale as well as Alice Springs, yes.

The other factor that means that children from Central Australia are at a disadvantage is that they were routinely transferred away from family and country up to Darwin. Do you agree with that?---Yes.

And especially girls from Central Australia had to endure the disadvantage of being transferred away from family and country up to Darwin?---I presume so, because there was no real way to separate out males and females in the Alice Springs centre.

And that’s an example, isn’t it, of the Alice Springs facilities being poorer than the facilities in Darwin?---Bearing in mind that Don Dale was never designed with a female section, it was retrofitted. It wasn’t that much worse. There were on occasions where I thought – there was one particular occasion where I did visit the Alice Springs facility where males and females were intermingling and that caused me also concern with the potential riffing in an environment like that. I thought it was wrong.

You knew, from your dealings with official visitors, that children from Central Australia suffered greatly as a result of the transfers that occurred to them. They


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complained of loneliness, not being able to connect with their families, not being surrounded by countrymen, not being able to have visits, desperately wanting to see family members, and not being able to, including when their family members were sick. You knew about these problems and this experience of the children from your reports from official visitors?---Look, I read those reports very carefully because they were an independent source of information.

Mr Elferink, I have very limited time, so if you could answer my question, please?---Well, then I – in totality, the answer is no.

Are you saying that you did not know about the experiences of the children who had been transferred from Central Australia up to Darwin through your reports from the official visitors?---No.

Notwithstanding reading them very carefully?---I’m not saying that at all, but some questions you ask me are very long. I have to respond, you won’t let me, so the answer is no.

If the reports from the official visitors that are before this Commission, and annexed to your statement, show that the children were expressing how lonely they felt, how sad they felt, and all of the other attendant problems that they experienced by virtue of being transferred, do you accept that you did know about those problems?---Those issues were raised. However, also were other issues raised. Most consistent was air conditioning and sandwiches, which is in those official visitor reports.

Now, do you accept that as a general proposition in Alice Springs, compared to Darwin, there was a lack of programs for rehabilitation?---I accept that as being correct and true, yes, certainly prior to 2014.

And after 2014 - - -?---Perhaps.

- - - I suggest to you?---I would have to go back and check the records. Once again that’s going to be on the departmental record as to what programs are rolled out and on what dates.

Do you accept, as a general proposition, that during your time as Minister responsible there was a lack of available recreation to children in Alice Springs as compared to in Darwin?---I don’t know if there was or there wasn’t. There was certainly availability for recreational spaces in both – particularly in the new Don Dale, when that was rolled out, we had built a substantial recreation space there. At that point, that would have been true.

So in comparing Don Dale to Alice Springs, you’re acknowledging that the facilities in Don Dale, the new Don Dale, were better than existed in Alice Springs during your time?---At the point – the point that we improved the new Don Dale, yes.


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Do you accept that, as a general proposition throughout your time as Minister responsible, that the educational facilities and programs available to children in Alice Springs were worse than for the children in Darwin?---Once again, I don’t know what school days were held on what days and how much schooling was done on particular days, and what was delivered. These are questions essentially for the departmental level.

Well, wasn’t it important for you to understand whether there was a disparity between what was happening for children in detention in Darwin compared to what was happening for children in detention in Alice Springs so that you could make an appropriate response, as Minister responsible, to ensure that there was equity across the Northern Territory in your portfolio?---We did what we could within the resources we had at our fingertips.

Now, an early budget Cabinet proposal that was drafted by your Department, which never made its way to Cabinet, sets out how inadequate Alice Springs was, the severe lack of adequate space for educational program and recreational needs, and called for $5.2 million to be spent to upgrade and extend on the current site?---Yes.

Are you familiar with that?---I remember a Cab sub of some sort being prepared.

And - - -?---What year are we talking about, by the way?

We’re talking about throughout 2013?---Right. Okay.

Does that assist you?---Yes, it does.

Now, in that submission that was drafted there was also a suggestion that there needed to be upgrades in Darwin to the tune of $4 million?---Yes. I will take your word for it.

Alright. So in that draft there was a recognition by the departmental staff that more money needed to be spent in Alice Springs than in Darwin by way of capital to adequately honour the duty of care to the children in detention .....?---If you’re relying on that Cabinet submission, I can see how you would draw that conclusion.

You would accept that?---I can – if you’re relying on that Cabinet submission, I see how you draw that conclusion. There might be other evidence that informs me otherwise, but I’m not disputing necessarily what you’re saying. It’s just that I’m not extrapolating quite as far out of the Cab sub as you are.

Instead of that making its way up to Cabinet you directed the Commissioner Ken Middlebrook to draft a proposal for a youth justice and training centre. This is the Cabinet proposal that was rejected?---Well, once again, if government makes a decision through the Cabinet process to assessment or reject a proposal that’s what it does. It does – it happens - - -


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Alright?--- - - - every year for every department.

Mr Elferink, I have a question for you about that and that is that your proposal, that you had asked Mr Middlebrook to prepare, was for a centre to be based in Darwin; that’s right, isn’t it?---Yes, from memory.

And in effect you directed the Commissioner to draft a proposal which would remove Alice Springs from the script?---I can’t recall it, but it’s not impossible.

If we could have on the screen, please, WIT.0157.0001.1010. This is the memorandum that came from Mr Middlebrook to you about the Cabinet proposal of which we have just been speaking?---Yes, it would have been. I’m noting the date, so it would have been part of the overall budget setting process, so it would have been one of dozens of Cabinet submissions, but yes.

This is the one that went up to Cabinet under your - - -?---Well, it wouldn’t have been this document. This is not a Cabinet – a Cab sub.

I withdraw that. This is the approval sought to then send this proposal up to Cabinet?---It’s the cover sheet, or it’s certainly the memo, but it’s one – it will be one of dozens through the normal budgetary process.

Alright. Could we go, please, to the last page of that document, and under the last heading Northern Territory Government Agencies that do not Support the Budget Cabinet submission there is listed the Department of Department of Attorney-General and justice?---Mmm.

And there recorded is the concern of the AGD that the proposal would result in the displacement of young people from Alice Springs and their families, reduced access to legal services for those young people and so on?---And that’s the opinion that they’re required to give with every budget proposal.

Now, notwithstanding those concerns and notwithstanding that there was nothing in the proposal to ameliorate those concerns, you put the proposal up to Cabinet; that’s right, isn’t it?---Well, all I can say at this point is that Government will have come to a conclusion as part of the Cabinet process. What discussions and what I did in Cabinet I am not at - - -

I’m not asking you about what you did in Cabinet or what discussions happened in Cabinet?---Well, this is in - - -

I’m saying that you put the proposal up to Cabinet notwithstanding the concerns that had been raised by the AGD in relation to children from Central Australia; is that right?---From memory, yes. What’s – by the way, you referred to this as the last page. I don’t think it is the last page. There should be a further page. There would have been a signature on the bottom end of this document for me to approve or not approve. Can I check that? That’s an attachment, sorry. No, I just picked up that


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that’s an attachment, but I don’t see a signature on the rest of the document so look - - -

If you go to page 2 of the document you will see I think your signature, which is - - -?---Yes, approved.

- - - circled “approved”?---There you go.

Alright?---So that gives me comfort. Yes, I approved it.

Alright. Can we go now please to DAJ – I can give you the tab reference. It’s tab 33 of the tender bundle of 18 April 2017, please. This is a memo that it appears you sent to the Chief Minister?---Yes. I presume I’ve signed it.

The copy that we have is not signed?---Well, I presume I’ve sent it. We’ll see if it’s a copy.

I understand it’s been attached to an email?---Well, let’s – let’s proceed on the presumption I signed it and sent it to the Chief Minister.

Alright. This reflects the position that you then adopted following the rejection of your training centre proposal, and involves ultimately what ended up being approved, which was the move from the old Don Dale to the new Don Dale?---Yeah. This is what, 2013, you say?

We’re now I think into 2014?---Okay. Early 2014, I note that the – my concerns in relation to Don Dale - - -

COMMISSIONER WHITE: I think it might be – I think it mid-2014, Mr Elferink?---If – if it’s part of the budget process it would have to be early 2014. The budget is produced and put to bed well before the end of the financial year. I think we pretty much nail it down by about March.

MS GRAHAM: Alright. Now, the ultimate proposal that went to Cabinet, and that was approved, saw the movement from the old Don Dale to the new Don Dale and improvements or adjustments made to those premises to make it more suitable for the children to be detained there; is that right?---That – it was the intention, yes.

And in relation to Alice Springs, there was mention only of installing some CCTV, but other than that Alice Springs is completely out of the script; that’s right, isn’t it?---Presumably, yes.

Now, you say in your statement that despite the move to the new Don Dale, you continued to receive complaints as to the standard of youth detention facilities?---Yes.

That’s right, isn’t it?---Yes.


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Now, it must not have come as a surprise to you that the complaints kept rolling in, particularly about Alice Springs, because you had done nothing to improve the circumstances for the children detained there in Central Australia?---Which is one of the reasons that there was an increased movement to the new Don Dale facility in Darwin.

So you’re just – your response, rather, to the inadequacies that you knew existed in Alice Springs was simply to transfer children up to Darwin?---That was part of the operational decision taken by the Department. They are the experts in the field; I support the experts in their decision. Bearing in mind that all of this is done within the parameters of the budget. What you’re describing is a very expensive spend and Government didn’t feel that they were capable of spending the money.

Alright. Now, there are a number of organisations - - -

MR MORRISSEY: Can I just intervene, sorry. Because the providence of this document was raised as an issue, we think it may be a mere draft that’s attached to a – an email from Mr Caldwell to Salli Cohen to Mr Middlebrook. We can’t be sure if this flies along, but that’s what it appears to us to be. May I just approach my friend, because we may be wrong but – it’s in the tender bundle at point 32.

MS GRAHAM: If I have time, Mr Elferink, I will come back to deal with that, but that’s apparent – what Counsel Assisting has said and the documents will reveal?---Well, it is consistent – what’s in that document, if it assists you, is consistent with my desire to improve.

Alright. Now, there were a number of organisations that registered their concerns with you about the inadequacies of the youth detention facilities both in Alice Springs and Darwin; that’s right?---Yes.

CAALAS wrote to you, the youth justice adviser committee wrote to you, the official visitors raised it with you, the Northern Territory Legal Aid Commission raised it with you, notwithstanding raised it with you, the list goes on; that’s right?---Yes. There was a common call for improvements in the system, which I agreed with.

Alright. Can I take you, please, just to one of our responses and that’s a response to the Northern Territory Legal Aid Commission in June 2015. It’s annexed to your statement WIT.0157.0001.1071. This is a letter that you sent to the Legal Aid Commission in the Northern Territory following a request by them for purpose built youth detention facilities?---Yes, this is - - -

And also an independent custodial - - -?---I received a bundle of letters to this effect. This was pretty much the standard reply.

Alright?---And the cost of the new facility that was estimated – by the way this came from the Department, was $120 million.


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Alright. Can I take you to, on the first page, you can see there are the numbers (1), (2), (3) and (4)?---Yes.

And they set out options that had previously been considered by the department?---Yes.

Now, there’s no mention there of the option that had been considered by the Department to upgrade the Alice Springs Youth Detention Centre at a cost of $5.2 million. That’s right, that’s absent from that list?---Well, it’s not on the list that I can see, no.

Now, if you need a chance just to familiarise yourself with the contents of this document, do, but I want you to pay particular attention to the issue of the things that you considered and the Department considered to be inadequate about the old Don Dale necessitating the movement to the new Don Dale and the pros or the positive outcomes that would be achieved by actually moving to the new Don Dale?---Yeah, I’ve - - -

Have you had a chance to familiarise yourself with the contents in relation to that?---In relation to this letter, I can’t see the whole letter at the moment, but I will take it as read that moving to the new Don Dale is an improvement. I would have said so in this letter, I presume.

Perhaps if we could have both pages up on the screen at the same time, please?---Right. There’s a list of five matters that are raised on the top of page 2.

Alright. Now, you’ve said a number of times today in your evidence, Mr Elferink, that one of the factors that you considered to be particularly unsatisfactory about the old Don Dale, and it would be an improvement in the new Don Dale, was that there were flushing toilets in the new Don Dale, and there were no toilets in cells in the old Don Dale?---In the dorms there weren’t. In the BMU, there were flushing toilets but in the dorms, no, there weren’t.

And what I want to suggest to you is that, throughout your period as Minister, the situation that prevailed in Alice Springs was that children were detained in a facility where they did not have toilets in the cell that they were housed in each night?---Yeah, that – they weren’t quite dorms in Alice Springs, I think that they were two beds to a cell, but once again they were cells without flushing toilets; correct.

The situation that prevailed in Alice Springs was that the facilities were unable to be used in a way where children could be appropriately separated by age, gender and offence type; that’s right, isn’t it?---Correct. That’s absolutely correct.

And the situation that prevailed in Alice Springs was that there was a severe inadequate space for education, program and service delivery, and VET courses;


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that’s right, isn’t it?---Not entirely, but substantially. There were spaces for VET courses, particularly with the kitchen that was installed later on.

You don’t refuse to adopt my general proposition though, do you?---As a general proposition, no.

And one of the other real inadequacies of Alice Springs was that there was no appropriate space for service providers, government and non-government alike, to be able to provide services to children in the Alice Springs detention facility?---When you say - - -

So, for example?--- - - - Services.

Let me give you an example. There’s a room in the Alice Springs Youth Detention Centre that is used as the medical clinic, as the staff lunch room, as the space where the official visitor meets with children, as the space where lawyers can sometimes get into the centre and see children, and it’s a space that’s not sufficiently private to allow confidential discussions to take place, and there’s often noise and distractions going on, and there’s just this one room that can be available for all these different services to be - - -?---Yeah.

- - - provided?---I think I know the room you’re referring to. It has – it’s actually a former cell. Is that the room?

Well, you’re familiar with the centre. When you first walk in the door, it’s the room on the left?---There are – okay, so there are – all of those rooms in that section are all former cells. There are if memory serves me, six or eight of them. It’s been a while since I’ve been in that – in that section. They are used for administrative purposes including the health clinic. In terms of eating lunch and the health clinic being the same room, I’m not aware of that.

You’re aware - - -

COMMISSIONER WHITE: Commissioner Gooda and I have had an opportunity to visit the Alice Springs Youth Detention Centre?---Sure.

So we’ve certainly seen it more recently than you?---It’s – then I would certainly go so far as to concur, as a juvenile detention facility, it was certainly well short of the mark.

MS GRAHAM: Alice Springs simply did not receive the attention that it deserved from you as Minister responsible; you agree with that?---No. That’s not correct.

There was a failure to prioritise Alice Springs and ensuring that improvements were made so that children could be appropriately detained in Central Australia?---Which is one of the reasons that – the issue of appropriate detention is an important one, which is one of the reasons that I supported the departmental decision to transfer


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prisoners from that facility to the new Don Dale, in spite of concerns that you have about family connections and those sorts of things, that’s a judgment call that the Department had to make. They made it, and I support it.

Well, you understand that as a result of the inadequacies of the facilities available in Alice Springs, that children from Central Australia are in the position where they have to be moved to Darwin to enjoy some better conditions?---Yeah, and that’s a judgment call that’s made by Government. Unfortunately, if we were to build a new detention centre in Darwin and a new detention centre in Alice Springs, that attracts a cost argument and unfortunately we were already trying to deal as a Government with a substantial debt problem. Judgment calls have to be made. You do it every single day in Government.

Now, the inadequacies in infrastructure resulted both in Alice Springs and in Darwin in damage being caused to the facilities causing expensive repairs to have to be undertaken?---I’m not sure if I understand the question, but if the damage you’re referring to was done by the detainees then the damage was caused by detainees.

Well, the fact that children were able to expose vulnerabilities in the infrastructure and escape causing damage, resulting in expensive repairs having to be done that was, in part at least, a result of the failings in the infrastructure?---As I’ve said from the get-go, I was not satisfied with either the old Don Dale or the Alice Springs institution. It had had its shortcomings. But I wouldn’t agree with the assertion that just because you can you have to break something.

Now, the requirement to continue to use Aranda House was in part a result to - - -?---Yeah.

A result of having to accommodate overflow?---Yeah, I was – I – if memory serves me, I signed off on a very – for a very brief period. I didn’t like Aranda House at all, and I was more than happy to unsign off on it so – with a subsequent decision.

And - - -?---Or – yeah.

- - - the continued use of Aranda House, I suggest to you, and it will be - - -?---The continued use?

Borne out incorrect in the records if I’m wrong about it, but I suggest to you cost for several years $1.2 million of unfunded costs each year?---Aranda House was only re-enlivened as a detention facility, if memory serves me for a very short period before I then signed off on it being decommissioned, and now I’m talking about a matter of months. I’m not quite sure what you’re referring to. Perhaps it predates my Government or the Government I was part of.

What I suggest to you is, because of the inadequacies in the facilities, it was short-sighted not to have expended some substantial funds on improving them and to


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render them more fit for their purpose?---But once again I’m stuck with this problem. I don’t think that Aranda House is running for years under my - - -

I’m not confining my question to Aranda House, Mr Elferink?---I’m sorry, I misunderstood.

Alright. Well, let me ask you the question again: I’m suggesting to you it was short-sighted not to have expended at least substantial funds on improving the facilities to render them more fit for their purpose of detaining children because, by not spending the funds, you were causing problems for the system down the track which were predictable?---I disagree.

Now, there are a couple of other matters that I want to just take you to in relation to the difference between Alice Springs and Darwin. You agree, don’t you, that throughout your time as Minister responsible there was no specialist Youth Court in a separate space to the adult court in Alice Springs?---That is correct.

And - - -?---Which is one of the reasons that the new Supreme Court is – I think it’s pretty much close to opening now, was built so that we could eventually expand the existing Local Court to enable those sorts of changes to occur. It takes time, but it was certainly on the drawing board going forward.

During your time as Minister responsible there was no comprehensive throughcare program for children detained in Central Australia?---I suspect that you could even say that about Darwin. The quality of what happened after the – the young people came through the custodial system ..... mostly very brief stays, would then see them under the management and care of other departments, if they were kids in protection and that sort of thing. I certainly wanted to build closer relationships, and tried very hard to build closer relationships between Child Protection and Corrections for exactly that reason.

Mr Elferink, I suggest to you that in your time as Minister responsible you neglected the citizens of Central Australia in relation to youth detention?---And I would say you’re wrong.

Mr Elferink, it’s in no way appropriate to refer to children who are in the government’s care and to whom the Government owes a duty of care, using the highly pejorative term “little cunts”, do you agree with that?---I would certainly agree with that.

Could we have on screen, please, tab 8 of the tender bundle of 26 April 2017?---Yes.

Now you will see below Mr Elferink that there’s the first email from a ministerial liaison officer?---Yep.

And the subject relates to escape from Alice Springs Youth Detention Centre?---Yes.


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And it attaches a flash brief, and I can tell you that this is the escape that happened in about October 2015 from the Alice Springs Juvenile Detention Centre?---Yes.

Now, the email that then follows is an email from your chief of staff, Mr Swinstead; is that correct?---It is.

Sent to one of your other advisors, Mr Craig Jones?---Yes.

And you’re copied into the correspondence?---I see that, yes.

And in that correspondence your chief of staff says:

It is time that the public knew what little cunts these kids are.

Do you see that?---Yes, I see that.

What I suggest to you is that that email correspondence reflects a culture within your office that tolerated, moreover promoted, a public demonisation of young people to whom the Government owed a duty of care?---And I disagree with that. This reference is offensive, should never have been drafted, should never have been written.

You and Chief Minister Adam Giles led a public campaign that demonised young people and labelled them as being inherently bad. Do you agree with that?---I’m not sure what you’re specifically referring to.

Well, you’ve talked today about speaking about the conduct of young people and you’ve drawn some distinction between demonising their conduct and demonising them. Do you agree that’s the effect of the evidence you’ve tried to give today?---I’ve – I’ve suggested that a child who is capable of or who has reached the age of criminal responsibility, if they commit crimes should be before – brought before the courts.

Well, Mr Elferink, your comments go much, much further than that. You have publicly sought to demonise young people to send the message to the voting public that these children are bad at their core, as a matter of their identity. Do you agree with that?---Those kids who consistently commit offences at the expense of Territorians, and their property, and their very physical safety, are people who are – in the opinion of myself and many of other people in the community – as people who should be dealt with as criminals when they engage in criminal conduct. I would certainly agree with that.

Well, you’ve gone much further than that though, Mr Elferink. You’ve said, “If you look at our juveniles that we have in the juvenile facility at Don Dale their identity, the reason that they go into those facilities, is that their identity is built on the fact that they’re bad”?---Well, they’ve committed criminal offences. By definition they’re bad.


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Do you accept that in demonising young people and labelling them as criminals, as the worst of the worst, as having an identity that is built on being bad, tends to isolate young people?---When the public suffer as much as they have done at the hands of these offenders there is an expectation in the public, one that I share, that they should be brought to justice. And the public’s opinion, and my opinion of them, aren’t particularly high. Are they troubled? Yes. I understand that. That does not automatically excuse them from their responsibilities to the community in which they live.

Do you take responsibility for the language that you use that it entrenches antisocial attitudes in young people?---I would suggest that my language does not entrench that in young people. There are many, many other factors, far beyond anything that I say, that have a much more direct effect in relation to youth custody. If I’ve said something of that nature, it reflects the public – the public’s opinion, of which as a member of Parliament you are very alive to.

Do you say that your words have no influence, no impact on the children that you speak about, and no influence on the way that the public perceives them?---Well, I’m certainly hoping that they will – if I hear what I’ve got to say about them, they will start to reflect on some of the things they do.

You think that it’s useful, the language you use?---I believe the language I do – I use has no substantive impact one way or the other, child abuse at home, alcoholism, those sorts of things are far more influential than an adjective.

In 2012, the Northern Territory Children’s Commissioner, the Northern Territory Anti-Discrimination Commissioner and the Northern Territory Information Commissioner called for the Youth Justice Act to be reviewed to protect young people from being named in relation to judicial proceedings. You’re aware of that?---I remember the call, yeah.

And your Government ignored that call, I suggest?---That’s right, because one of the reasons was that when there were escapes as recently evidenced, we needed to be able to identify those people in the community.

I’m being told my time is up. Could I indulge the Commissioners briefly to deal with two other brief matters?

COMMISSIONER WHITE: Could they be relatively brief, given the time, and you’ve still got some colleagues who need to come.

MS GRAHAM: Yes, I understand that. I’m very conscious - - -

COMMISSIONER WHITE: And Mr Elferink has been here all day, as well. I do have to look at – not to mention the court – the transcriber, so Ms Graham, see if you can keep it tight, please.


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MS GRAHAM: I will do my best.

Could we have please on the screen tab 12 from TB26 from April 2017. This is the shopping list of ideas that you - - -?---Yes. Well, hang on - - -

- - - sent to Adam Giles.

MR MORRISSEY: I tender that document too, as I think it will be referred to again and it may be.

COMMISSIONER WHITE: Yes, thank you. Exhibit 324.

EXHIBIT #324 BRAINSTORMING EMAIL SENT TO ADAM GILES

MR MORRISSEY: I might also tender tab 8, which was the “little cunts” email.

COMMISSIONER WHITE: Exhibit 325. You won’t traverse the same ground that’s already been over with this list, though, will you Ms Graham?

EXHIBIT #325 EMAIL REFERRING TO LITTLE CUNTS

MS GRAHAM: I just have a couple of questions to try to reveal some - - -

COMMISSIONER WHITE: Systemic matters.

MS GRAHAM: Yes.

COMMISSIONER WHITE: Alright. Thank you. Just try and keep it tight.

MS GRAHAM: Mr Elferink do you support the use of a death penalty?---That’s a hypothetical at this stage, but I think it has its place in certain circumstances.

It’s not too unpalatable or too draconian for you? MR HARRIS: I object.

THE WITNESS: This is a - - -

COMMISSIONER WHITE: I think I might too.

THE WITNESS: I’m not sure if I understand the - - -

MS GRAHAM: I withdraw the question.


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COMMISSIONER WHITE: Please do.

THE WITNESS: It’s an opinion.

COMMISSIONER WHITE: No, no?---Sorry, ma’am.

We’re not going there, Mr Elferink.

MS GRAHAM: What I’m suggesting to you, Mr Elferink, is that there is a line beyond which you wouldn’t be comfortable proffering ideas to run as an election platform?---I am involved in input into – or have been involved in input into policy into any number of areas where we have brainstorming sessions. You just throw everything up on the board and then you knock them out.

Well, what I’m suggesting to you is that all of the ideas that you proffered here were on the side of the line where you were comfortable to proffer them as serious ideas?---No, that’s not the evidence I gave. The Chief Minister asked me to come up with a comprehensive list of ideas, anything to be included, for youth justice and justice issues going forward in relation to policy. So I provided him with a list. It doesn’t mean that I agree with everything that’s in the list. I agree with some of it.

Alright?---But not all of it.

Alright.

COMMISSIONER WHITE: Look, we’ve had that evidence.

MS GRAHAM: I will move on, Mr Elferink.

COMMISSIONER WHITE: Yes, please.

MS GRAHAM: Do you accept that a tough on crime approach actually increases or can tend to increase the likelihood of offending?---No. I don’t, and I will tell you why: is that we introduced such an approach, or we stand accused of introducing such an approach, and what we saw was a reduction in incarceration rates in the adult – not a reduction, but a growth in incarcerations far lower than projections.

COMMISSIONER WHITE: That has to be not evidence-based. It was simply a projection that was done of expectations. That they weren’t met just meant there was some flaws in the projection; surely?---Well, I don’t necessarily agree with that, Madam Commissioner, with respect. That projection was produced by the Department on – based on the growth rates they historically had. They said, “This is the range.” The Sentenced to a Job program, I think, influenced that. I think there was perhaps another number of very substantial influences, not least of which were the temporary beat locations outside the bottle shops. The history of where that was rolled out, particularly in Alice Springs and Katherine, the anecdotal evidence that


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came back was irresistible in terms of this, that the number of presentations in hospitals, the number of arrests made by police just completely tanked.

Were those projections arising out of the size of the new correctional facility, is that how - - -?---I think they were used as the justification for the creation of the new - - -

Alright. Well, we’ve seen them?---That was the - - -

I accept your answer, Mr Elferink?---Thank you, ma’am.

MS GRAHAM: Mr Elferink, I just have one final topic to cover with you. You knew, through the official visitor and through other avenues speaking to the Commissioner and so on, that there were some problems in Youth Detention Centres in Alice Springs and Darwin during your time; you accept that?---Yes.

You know now that there were some very serious problems that have been revealed in the Youth Detention Centres in Alice Springs and Darwin during your time as responsible Minister. Do you accepted that?---Yes, but the official visitors - - -

There were - - -?--- - - - reports didn’t cover those issues.

And I will come to that?---Good.

There were a number of oversight mechanisms in place, including the official visitors?---Yes.

And even with the combined effect of the official visitors, the Children’s Commissioner, and other perhaps operational oversight mechanisms that might have existed on the ground these were not sufficient to ensure that the problems that were serious problems were revealed and addressed at a systems level. Do you agree with that?---Yes. I would agree with that.

COMMISSIONER WHITE: I think, Ms Graham, you’ve really had a bit of indulgence here, because there are still three other counsel to be heard.

MS GRAHAM: There are, Commissioners and I spent a lot of time on Alice Springs and that’s because it really had been sidelined.

COMMISSIONER WHITE: We understand that, yes.

MS GRAHAM: So – and I have other legitimate areas, so could I just cover off this issue to do with the official visitors and the oversight mechanism.

COMMISSIONER WHITE: Yes. Could you do that fairly tightly, please.

MS GRAHAM: Yes.


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MS GRAHAM: I suggest to you that, because that’s now been revealed to be the case, that the oversight mechanisms that existed during your time were not sufficient to reveal and address the problems, that there needs to be an overhaul for the oversight mechanisms for youth detention?---In terms of the policy outcome I could understand, I understand that other jurisdictions had implemented that sort of oversight mechanism. Perhaps – that’s a matter for the Commission to turn its mind to. I do know that the Western Australian Oversight Commissioner, I’m not sure of the title, visited – I understand the new Don Dale and actually signalled some approval in relation to it, so maybe it has a use.

And CAALAS and other advocacy groups called for an independent custodial inspector to be set up during your time as Minister; is that right?---They certainly – they’ve certainly raised it.

That was not adopted by the Government?---No.

And what I suggest to you, finally, is that YDRAG that you talked about early every was set up to avoid having to action the mounting pressures for an independent inspector of custodial services?---No, I disagree with that entirely. What I wanted was the greatest critics of the system involved in the solution. That’s what I asked them for.

And finally I suggest to you this: that YDRAG was set up as a deliberate attempt to bring NAAJA and CAALAS and other advocacy groups into the tent to leave them little opportunity to sit outside throwing criticisms?---I disagree with that entirely. What I wanted was their expert opinion, which I valued.

COMMISSIONER WHITE: Thanks, Ms Graham. Thank you. Mr O’Brien, are you going next?

MR O’BRIEN: Yes, Commissioner.

COMMISSIONER WHITE: Thank you. How are you bearing up Mr Elferink?---I’m fine, thank you, ma’am. Appreciate your consideration.

<CROSS-EXAMINATION BY MR O’BRIEN [5.29 pm]

MR O’BRIEN: O’Brien’s my name. I represent Dylan Voller?---Mr O’Brien.

After 21 August 2014 you received an email that following weekend, on 23 August 2014 from Dr Howard Bath?---Correct.

.ROYAL COMMISSION 27.4.17 P-3193 J.W. ELFERINK XXN©Commonwealth of Australia MR O’BRIEN

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And that email invited you to have a conference with him, which you did a short time later; is that right?---If memory serves me I phoned him on the weekend, I could stand corrected, and I said, “Come into my office.” So he was there within a few days.

And when he sat you down he showed you a report?---A draft – a report, yes.

And you were able to see from it that there were still pictures of a child being, in your mind at that time, treated in a manner which you thought was inappropriate; correct?---I went so far as to say criminal.

Yes. And you said, I think in your evidence, that you were shocked by what you saw?---I was, as many other people were when they saw it.

Yes. On television more recently?---Yeah, that’s right.

And you came to realise, I expect, that all of – and perhaps in that meeting with Dr Bath that all of those incidents occurred relating to the one child?---I didn’t know it at the time. I’ve got to say that, like you and other people when you first see that information you go, “My goodness gracious me and it’s somewhat distracting.” But I wasn’t aware it was the single child, but subsequent to that time I think that most of the matters referred around or orbited around your client.

Certainly, by October the following month – so some weeks later – you knew that all of those incidents involved Dylan Voller, didn’t you?---When you learned that I’m not entirely sure. Can I say Dylan Voller’s name, even at that time, wasn’t unknown to me.

Thank you. And when you – your attention was drawn to that report, it wasn’t only the incidents of physical aggression that – how Bath was drawing to attention. There were other issues associated with that report; am I correct?---He said that there were a number of other issue that were of concern to him, yes, I remember him talking to me about that.

Some of those included use of excessive periods of isolation?---My memory of that conversation – what other issues, I took it to mean there were other issues of violence.

And you said to – well, I suggest to you that according to Dr Bath – I want you to accept this, Dr Bath says that on 20 August, the day before the incidents, he received a complaint from children – in his capacity as Children’s Commissioner?---Yeah.

About children being housed in inhumane conditions at Don Dale within the BMU. Do you understand that?---I’ve accepted he’s given that evidence.

That’s what he says?---Okay.


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Now, the next day he hears about the gassing incident within the BMU; you accept that?---Yes.

Then within two days of that he’s in contact with you to find out – to have an urgent meeting?---That’s right.

You understand that?---That’s correct.

It is inconceivable, Mr Elferink, that he didn’t raise with you during that meeting the issue of isolation and issue of the housing of children within inhumane conditions at the BMU - - -?---My recollection - - -

Do you accept that?---My recollection of that meeting was that the focus – my focus was on the criminal acts. That’s – I was – the problem is we’re having the conversation, he’s sitting on my couch, I’m sitting ..... I’m flicking through this report going, “Goodness gracious me.”

Yes?---And probably a few other things. He’s raising a number of issues with me; he’s saying there are – that he has a number of concerns.

Yes. And – okay. Could I ask you this: did he say – within that meeting, did he tell you that – I withdraw that?---You - - -

Sorry, I withdraw that. You said to him, “Go and take them to the police, this is serious”?---Yeah, absolutely.

That’s right?---Yeah.

Because you felt he had an immediate and mandatory obligation under the law to bring that to the police’s attention; correct?---Yes.

Okay. Did he tell you, “I’ve done that and indeed, within this very report that I’m showing you, I’m suggesting there are failures to report matters to the police by the workers within the Department.” Did he tell you that?---What he told me is that he was aware of a number of issues and he wanted to have an inquiry, and he said he wanted $300,000 to run that inquiry.

And another feature that I’m suggesting to you that he said was that there were – that the Department workers were obfuscating and hindering police investigations. He mentioned that had to you, didn’t he?---I remember him making those sorts of comments in relation to a matter.

Yes. So when you are confronted with this image, these images that depict something so shocking that you think you’ve got to immediately speak to the police about this, Dr Bath, in the same breath he’s saying, “Well, I’ve done that and in addition to that, the Department are hindering police investigations.” He mentioned that to you, didn’t he?---He – yes, specifically if memory serves me in relation to the


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matter of Mr Tasker. He assumes, incorrectly, I might add, that I was aware that other matters were also being investigated at this stage.

I will come to that matter shortly, if time permits, but look, I want to suggest to you that what – it was highly irregular and extraordinary that the Children’s Commissioner sought an urgent briefing. You would accept that, wouldn’t you?---Irregular and extraordinary, no, I get urgent briefings from any number of Commissioners, both within the public service and outside of them.

And the reason that he wanted to talk to you about this urgent briefing is that he felt that there were systemic factors that led up to the BMU gassing incident on 21 August 2014; correct?---My recollection he was concerned about systemic abuse.

Systemic abuse and systemic issues associated with the Department of Corrective Services?---Particularly systemic abuse, yes.

And so when he brought these matters to your attention, and you saw these shocking images, did you think to yourself, “What’s happened to the children, where are they at now, or what’s happened to the child, where is he at now?” Did you think that to yourself?---That’s certainly one of my considerations, which is why within moments of having is that meeting with Mr Bath and saying, “Go and report what you know to the police,” he also mentioned other matters, I might add. So I said, “Take it to the police.” Then, of course, my next telephone call is to the Commissioner of Corrections.

And did you say, “Where is this child, or where are these children who are subject matter in this report that I’ve just received?” Did you ask that question of your Commissioner?---Absolutely, I did. I said, “Commissioner what’s going on, please explain.” He then told me many matters in that report were historical and at that point I started to discover that there were further investigations on foot, or had been on foot and dealt with.

You’ve told this Royal Commission, Mr Elferink, that you were shocked and you were in a position where you thought what you saw – and you’re a police officer of 14 years standing – what you saw was criminal in those pictures, and yet you accepted the Commissioner’s view, “It’s all historical, forget about it, Minister, just don’t worry about those children”?---That’s not – that is not correct.

Okay?---Because you can’t - - -

What did you do for the welfare of those children after you saw that report, Minister?---I commissioned the Vita Report so that I could find out whether or not we had systematic abuse of children in the system.

What did you do for the immediate welfare of the children or child depicted in the photographs that you saw that so shocked you?---I said to the Commissioner that he


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had a responsibility to make sure all criminal matters were investigated and these kids were properly looked after.

And by three weeks’ time you had realised, hadn’t you, that the Commissioner was making pretty serious allegations in relation to police hindrance – in relation to hindrance of police investigations, that’s the case, isn’t it?---That’s right, which is one of the reasons I wanted Mr Bath to go back to the Commissioner of Police and my understanding is that’s exactly what he did.

And so when you read those reports in relation to the hindering of police investigations and possibly making false affidavits sworn against police officers who had given completely inconsistent accounts to the accounts given to the Children’s Commissioner, did you think to yourself, “These people need to be further investigated and this needs to be referred to the police.” Did you do that?---And the matter – the matter had been referred to the Commissioner and I understood that major crime was investigating.

You didn’t find out exactly where Dylan Voller was in the days after you had seen those shocking images, did you?---Not specifically, but bearing in mind that the images that were in that report were already old by a number of years.

Yes?---My insistence with the Commissioner was make sure that we provide appropriate care, which he was trying to do.

You could understand regardless of the criminality of it, what you saw shocked you and you understood there was some trauma associated with each of those instances upon the child at the time. It must have been the case?---Potentially yes. There was certainly potential trauma and I sought assurances from the Commissioner that these kids were being looked after as best they could.

So you weren’t told that Mr – you weren’t told then that Mr Voller spent the next three days in isolation in the adult jail, I imagine?---Are you talking about the gassing incident.

After the gassing incident?---Yes. Well, that was certainly not covered by the Children’s Commissioner when he came to me and spoke to me. The report he showed me had not a single mention, from memory, about the gassing incident.

And did the Commissioner tell you after he went to the Holtze detention centre he spent those three weeks in isolation in the new detention centre. Did you learn that?---No, I didn’t. I leave operational running matters of the prisons in the Northern Territory to the experts in the field.

You didn’t find those things out because you didn’t care?---That’s - - -

You didn’t care to.


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MR HARRIS: I wonder if my friend would like to ask one question at a time and put a full stop after each sentence, otherwise I object.

MR O’BRIEN: Well, I’ve been given 15 minutes to cover this cross-examination. I’m doing my best. I understand this witness has been in the witness box a long time, but I’m under pressure too, as too is the Commission. We’ve got to get through this and I’m doing my very best in difficult circumstances.

COMMISSIONER WHITE: I think the complaint simply was one question at a time, Mr O’Brien.

THE WITNESS: What was the last question?

MR O’BRIEN: You didn’t care about the welfare of these children, did you?---That is not correct.

It was just – they were to your mind just ratbags or worse?---That’s not correct.

They were, to your mind perhaps, as your chief of staff expressed in the months later, just little cunts, weren’t they?---I certainly didn’t agree with that and I don’t agree with that now.

You see your party’s political agenda prevailed over the welfare of these children, didn’t it?---Yes. And I sought to improve the system post August 2014 which is why I had the Vita Review done, and made sure that we made substantive changes to the system. I refer you to the annual report 2015/16 which over a number of pages describes the improvements and systemic changes to were introduced.

Well, I want to go to one of those systemic changes. Can exhibit 324 on the screen, please. This is the list of goodies, as I’ve described it, that you’ve put to the Chief Minister, through his adviser, we’ve seen this a few times. And you see in item number 7, “Greater restraint powers in juvenile detention (current)”. See that?---Mmm.

And by “current” you know that that was something that was at that time being considered; correct?---Yes.

And what you meant by restraint powers is the use of the restraint chair; correct?---What I meant was restraint powers, whatever mechanism is used is a matter of expertise for departmental officials. The legislative instrument that I introduced with the support of the Criminal Lawyers Association of the Northern Territory sought to create greater clarity around the powers of restraint. If the body attached to that legislative instrument sought fit to introduce a restraint chair or a safety chair, that was a matter for the experts in the field.

You see, it’s a matter of common knowledge within this Royal Commission’s purview that the legality or use of the restraint chair was a matter of some legal


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ambiguity. You accept that?---I remember being advised at the time that the – the legislation was broad and unhelpful. As a consequence, the Department wanted it tightened up, and so did I.

And were you aware at that time that there were concerns that the use of the restraint chair up until the passing of the legislation enabling it as a restraint was – was a question of some legality, indeed it was thought to be illegal?---I’m not – I certainly wasn’t advised at the time. I know it’s come up in the Royal Commission. It’s a matter for this Commission and courts to concern themselves with going forward.

Yes?---At the time I certainly was unaware of it. What I was aware of was that the use of restraints were not properly governed by legislation.

You see, the use of the term “greater restraint powers in juvenile justice”, as opposed to what you said in evidence which was a rationalisation of restraint powers, would suggest that you indeed knew, at that time at least, 21 March 2016, that the law was – needed to be broadened and expanded in order to allow the use of the restraint chair, which was in fact already happening for children?---The legislation was introduced for the purposes of making sure there was greater clarity around the powers that existed for the use of any form of restraint.

When you did go – involve yourself in the legislative reforms enabling the use of the restraint chair was there any psychiatric or psychological studies used to evaluate the use of restraint chairs upon children?---I don’t recall there was any, no.

There was none; correct?---I don’t recall any.

Did you have – did you come to be aware of any studies or any thesis on the harm that these sort of chairs might cause a young person - - -?---No, I wasn’t.

- - - in custody?---I wasn’t, but once again the powers that were being introduced did not single out restraint chairs. They created a committee to oversight appropriate restraint. That comes in many forms.

Did you hear the evidence of Dylan Voller in relation to – when he was ask by Counsel Assisting as the impact the restraint chair had on him at that time?---I didn’t. However, I understand that in his instance it was used to protect himself from self-harm.

Do you understand that he made threats to self-harm, but had not carried out any threats. Is that your understanding of the situation or do you not understand the situation fully?---Well, my understanding of the situation is that he had made threats and as a consequence of that he was restrained from causing himself harm and, consequently, didn’t.

He was – he indeed did make threats to hurt himself and this is how he said he felt when he was placed in the chair. This is at T, at transcript 711.25:


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I was just that stressed, I was just sobbing and at the end of it I could hardly even talk. My body just shut down. I couldn’t be bothered fighting anymore so I just sat there.

He went on to say:

It was the most scary thing that had ever happened to me.

Do you understand that those are the words of a child involved in this chair that you, without any evidence, any research or empirical studies to suggest helped these children, that’s what he suffered, that’s what he went through. Do you understand that?---Yeah, but you can’t draw that conclusion. I didn’t authorise the use of the restraint chair. I created a legislative instrument that enabled experts to determine what reasonable force was and then left that decision, as to what reasonable force was, to those experts, including the chair but amongst other things.

That policy, like so many of the things you did through your time as Minister for Corrective Cervices in relation to children was heartless, it was ill-considered, and it was ultimately for these children damaging?---My position was simply that I wanted to leave the experts with sufficient powers available to them to protect not only the community and other children in the institutions, but also staff and ultimately your client.

Your records, sir, I suggest to you is testament to putting the welfare last in favour of political expedience and populism?---What you’ll find is that - - -

MR HARRIS: I object.

COMMISSIONER WHITE: Well, it’s making – you can – Mr Harris, Mr Elferink can respond whether he accepts or doesn’t accept that comment that’s been made to him.

MR O’BRIEN: I will put it again, Commissioner.

COMMISSIONER WHITE: No need to put it again. I think Mr Elferink - - -

THE WITNESS: I don’t – I don’t accept the comment. The introduction of things like OPCAT, the attempt to get independent observers into the system, the changes that I made to Don Dale, particularly after the events of August. The legislative change that you describe was actually supported by the Criminal Lawyers Association of the Northern Territory. The work being done in the adult system in relation to Sentenced to a Job, getting better outcomes for adult prisoners as well, all of those things are indicative of what I did. Grasping at a list prepared for the Chief Minister and pulling something out, I would simply say this to you: is that I stand on what I did, not on what I said.


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MR O’BRIEN: You should be judged on what you did; is that the case?---Absolutely. When it comes to things like Sentenced to a Job, improving the juvenile justice system, creating safety for your client amongst other people in the – in the juvenile justice system.

Nothing further.

COMMISSIONER WHITE: Thanks, Mr O’Brien. Thank you. Mr O’Connell, you are not the final counsel; you understand that.

<CROSS-EXAMINATION BY MR O’CONNELL [5.48 pm]

MR O’CONNELL: I understand Commissioner. I will keep going, Commissioner, until you tell me to sit down, and I will sit down. And I’ve got my stopwatch going.

Mr Elferink, my name is O’Connell?---Mr O’Connell.

I represent a former child in detention who goes by the pseudonym AN. Can you see who that person is?---Yes.

Do you remember that person?---No. I remember the name; I don’t remember the person.

That’s fine. I would like to start by asking you whether it’s fair to say that one of the philosophies underpinning your approach to Corrections was that people can move beyond their trauma if they make a constructive effort at their own rehabilitation?---As part of my philosophy, yes.

And do you accept that some kids that come into detention have cognitive deficits such that they are unable to participate in their rehabilitation without expert intervention?---Yes, some.

And do you accept that those same kids may also struggle to comply with the normal rules that are – that exist in detention?---I would accept that some would struggle harder than others. Can I say – make this observation. If a kid comes into detention, they have already been determined to be capable of being found guilty of a crime, or at least are put on trial for one.

Well, that’s - - -?---So - - -

That’s a completely - - -?---But that’s tested already.

That’s a completely different test?---Well, yes, but it’s tested already.

.ROYAL COMMISSION 27.4.17 P-3201 J.W. ELFERINK XXN©Commonwealth of Australia MR O’CONNELL

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Okay. Do you accept that those kids that I referred to with cognitive deficits may also be unable to avail themselves of programs like SEED?---Conceivably, yes.

Are you aware of the Select Committee on Action to Prevent Foetal Alcohol Spectrum Disorder?---Are you talking about the one run through the Northern Territory Legislative Assembly?

Correct?---Yes.

Were you aware of their 2015 report titled the Preventative Disability?---Yes.

Did you read it?---Yes.

I will just quote a couple of passages from that report. It said:

Children with FASD –

foetal alcohol spectrum disorder –

are at greater likelihood of committing criminal offences and incarceration. Primary disabilities associated with FASD appear to be the major contributor to this trend including impulsivity, difficult controlling behaviour, and an ability to plan actions and behaviours.

Would you agree with that?---They are general principles, yes.

And then they go on to say:

These primary disabilities are at odds with a legal system which is premised on the assumption that individuals make voluntary informed decisions about exercising their rights or infringing on the rights of others by committing a crime.

?---That is for a court to determine on a case to case basis.

And further:

Those were FASD affected often interact negatively with criminal justice structures as they lack the cognitive ability to understand this rationale.

?---Once again, it’s up to a court to dispose of those matters on a case to case basis.

If a child with FASD committed a crime would they be, in your view, by definition “bad”?---No. That’s a matter for the court to determine as to whether or not they are criminally responsible. If they determine them to be criminally responsible then I rely on the court’s assessment to that end. A court will take evidence if a person is


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criminally responsible, and if they make that determination then they are guilty of the crime for which they are charged.

Do you accept that that same report also said that the courts are not up to speed with being able to both assess the extent to which a young person is affected by FASD?---The clinical model for FASD, as far as I know today, has not yet been articulated. If it has, it’s only been done recently. One of the problems with that FASD report, when it came out, was that there was no clinical model to diagnosis FASD.

Do you agree that there was a strong suspicion that there were high numbers of FASD sufferers in the Northern Territory?---I would accept that there are a high number of FASD sufferers in the Northern Territory.

And high numbers coming into juvenile detention?---And I expect it’s potentially going to grow enormously in the not too distant future.

Then. during your time as Minister. what did you do to put in place programs or protections to ensure that kids with potential FASD or cognitive deficits could benefit from time in detention?---Bearing in mind that the clinical identifiable tool for FASD did not exist, any medical services – of which there was substantial medical services both in the adult and juvenile system, would have to deal with however that FASD condition became manifest. FASD is a bit like the old title melancholia: it captured a myriad of realities. It’s now, I understand, close to – or there has been developed at some point, or will be developed, a clinical tool. Once that’s available, then clinicians will be able to deal with the delivery of services. Other than that, any other manifestation such as depression will be dealt with in accordance with how the clinician sees fit. It’s not for me to tell the clinician how to do that.

I will ask the question again, and ask that you answer it: what did you put in place as Minister?---I just said so. We had a whole – a range of medical services that were available to the kids in the system. They didn’t diagnosis this FASD, particularly, because there was no diagnostic tool to that end.

In that report there was a recommendation that additional funding be allocated to the development of more residential secure care facilities for the delivery of behavioural management programs to the cognitively impaired, including FASD individuals. It didn’t rely on those just with a diagnosis of FASD, all cognitively impaired individuals?---And I, as the Minister for Mental Health Services, made improvements to the mental health services, particularly available to young people, particularly at the Cowdy Ward here in Darwin where there are now hospital beds for kids with psychological and disturbances that were not available 18 months ago, two years ago.

You mention in your evidence a number of locally based healing camps?---Yeah, you’re talking about ..... and Brahminy in particular?


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Yes. Did you, during your time as Minister, fund any of them?---No.

Now, I will turn directly to my client AN. Do you recall – I know you don’t say you recall seeing that name but do you recall being made aware of - - -

COMMISSIONER WHITE: I think Mr Elferink said he recalls the name, but he doesn’t have any recollection of the young person.

MR O’CONNELL: Thank you, Commissioner.

THE WITNESS: That’s correct.

COMMISSIONER WHITE: You might – you have to bear that in mind with the nature of the questions you’re going to be asking.

[REDACTED INFORMATION]


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Alright. Can I refer you finally – this is my last question – to paragraph 17 of your statement. If that can be brought up on the screen?---17, did you say?

Paragraph 17. You state:


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While unfashionable in approach I believed then, as a do now, that criminal activity in the Northern Territory was not related to indigeneity but rather to employment.

COMMISSIONER WHITE: Well, don’t read the whole paragraph.

MR O’CONNELL: I’m not reading – I’m just reading that bit.

COMMISSIONER WHITE: Because – you can ask the question. We can all read it.

MR O’CONNELL: Yes.

The question is does that statement suggest that the rest of the Government you were in did think that was a fashionable approach?---No, you can’t – that was more a comment about the trend to believe that there is – that there’s – there’s a direct link between indigeneity and offending. I don’t believe that’s the case at all.

Okay. Where do you get that? Who do you say believed in that trend?---There are no shortages of public commentators who will consistently try to make links between indigeneity and offending.

And no shortage of people within your Government?---There would be – the general philosophy of the Ministers around me, including Minister Price, was that a person was measured on their integrity rather than their indigeneity and that was reflected in Government policy, particularly Sentenced to a Job.

Nothing further, thank you.

COMMISSIONER WHITE: Thanks, Mr O’Connell. Now, there is only one more counsel, Mr Elferink. If you want a short break we can do. There is a matter of Mother Nature that needs to be attended to, ma’am.

COMMISSIONER WHITE: I’m not surprised. We will take a break, and Ms Lee is the last counsel, and I know she won’t be very lengthy, so we will take a break for five minutes. Thank you.

ADJOURNED [6.10 pm]

RESUMED [6.16 pm]

COMMISSIONER WHITE: Mr Elferink, Commissioner Gooda and I have been working on the principle that we assumed that you would rather finish today?---I’m more than happy to proceed, but I lay myself in the hands of the Commission.


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Alright. Thank you. Well, you really must let us know if you’re feeling so frazzled that you really just don’t want to answer any more questions?---Ma’am, I’m feeling comfortable and capable.

<CROSS-EXAMINATION BY MS LEE [6.17 pm]

MS LEE: Thank you, Commissioners.

Sir, my name is Tamzin Lee, I represent a number of young people. I have a document that I’ve asked to be given to you?---Ms Lee.

Sir, what you will see on that document is AA, AB and AC?---Yep.

That’s how those young people are being referred to in the Commission. I’ve also included some information there. These three young people were involved in the incident on 21 August so that just depicts the number of the cell they were in and also the letter they were given in the Children’s Commissioner’s report?---Sure. That’s fine. The – the – yes.

Thank you. Sir, earlier in your evidence in some answers to questions by Senior Counsel Assisting, you said places of detention are not about bars, they’re about systems, and you said that that, in fact, in your mind was more significant than the infrastructure?---Yes.

You also noted that, when you first became the Minister for Corrections in 2012, that you had some real concerns about the system that is were in place in Don Dale?---That is correct.

And when we talk about systems in this way, we talk about policy procedure, but we also talk about things like institutional culture?---Yes.

And that is one of those things that really does flow down or cascade down as you spoke earlier?---Poor - - -

From the top?---Poor system is a cause and effect thing, yes.

Now, sir, you also spoke about identification of young people in public?---Yes.

And said that, despite at some point during the time that you were Minister some submissions coming to you that that is a practice that perhaps should be reconsidered, that you took the position that it should be authorised when they were at large?---It was – the position I had was that I wanted to retain the right to be able to do so for the Departments. So take a recent example as a case in point, there needs to be an ability to warn the public that certain individuals at large. I would have been

.ROYAL COMMISSION 27.4.17 P-3210 J.W. ELFERINK XXN©Commonwealth of Australia MS LEE

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concerned had that information not been made public, even in relation to the recent incident.

Sir, your understanding is that during the period of time when you were Commissioner that – sorry, the Minister?---I was never the Commissioner.

Minister, that in the event of escapes from Don Dale, that young people would be named and their photographs would be displayed on NT Police Facebook pages?---If – if the concern warranted it. I mean, once again it’s a judgment call. I allowed the policy setting to be that if necessary people were identified and supported identification where that was deemed necessary.

Would you accept from me that AA, AB and AC were identified in this way, in the escape on the second of – following the escape on 2 August?---Yeah. I will take it on face value, yes.

And I think you were talking about a recent incident. So your understanding is that this is a policy that is still in place today?---Would appear to be.

Now, AA, AB and AC were identified, they were then recaptured and, we’ve heard evidence, put into the BMU. Now, you received information about the escape?---Yes.

If supplementary tender bundle tab 43 of 23 April could be displayed. Ordinarily information came to you in these flash brief - - -?---Yes.

- - - format?---Sometimes it was a phone call followed up by a flash brief, depending on what the issue was.

Your understanding about that escape on 2 August – that’s not it. Sorry about that. Well, if I can just – that’s not the document I was referring to, but in any event – thank you. That’s it.


MS LEE: Now, sir, if I take your attention to the paragraph under Background?---Yes.

Now effectively it says on August 2014 sport had been completed in the main H Block area of Don Dale Youth Detention Centre. You’ve given evidence that you visited Don Dale on a number of occasions?---Yes.

So you would be aware of H Block being in, as the kids call it, “down bottom”?---Yep.

In low security?---That’s the dorm section.


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Yes?---Where the school used to be.

So there was a movement between low security to medium security, and at that time a number of detainees refused to return to their accommodation area and congregated. So that was the escape incident from the – that, upon recapture, facilitated those young people being put into the BMU?---Mmm.

Now, you also said in your – I’m finished with that document, thank you – you also said in your evidence earlier today that it was that escape that really demonstrated to you that the – there were real shortcomings in the ability of Don Dale, the physical structures that is - - -?---Yep.

- - - to contain the young offenders?---Yeah, the – where they went over the fence was – the fence wasn’t compromised. The barrel – sorry –the barrel over the top of the fence was supposed to stop a person from being able to scale. Well, these young people managed to find a way to get over that. Unless they were in the BMU, they would eventually be back in that space and, I understand, had indicated that’s exactly what they were going to do. Put the staff and the system into a very difficult position.

You would accept from that flash brief that they didn’t escape from an area in which they were locked. As in they weren’t in a dorm – they weren’t in the dorms of low security, were they?---On the face of that flash brief, no.

They weren’t in the medium security cells or rooms?---No.

They simply scaled the fence?---That’s right.

Despite mechanisms being put there to stop them?---That’s right.

Now, they were put in the BMU – I accept the evidence that you’ve given that you didn’t understand exactly what that entailed, because that was an operational determination?---Yep.

Now, you didn’t see the BMU, and you didn’t see the way that those young people were being kept, but somebody did?---There would have been staff and I understand the Commission has received evidence to that effect.

Then, on 21 August, there’s this unprecedented situation where CS gas is released?---Yes.

And we’ve heard a little bit about this as well. I won’t go back into it too much, but in comments to the media after that, you refer to the young people that had been involved in that gassing as “villains, worst of the worst, the most violent we’ve ever seen”?---That’s right.


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And that was based on information, I put to you, that was incorrect?---In terms of the most violent we had ever seen, Mr Middlebrook – or that comment was in relation to ongoing conduct, not just after they’ve been placed in the – this is going back over a number of years. Mr Middlebrook said to me, as a Corrections officer of some 30 years’ experience, that he had never seen the like, and there is no doubt that our system had never seen the like because the fences had never breached – been breached in that fashion.

So you took Mr Middlebrook amount his word - - -?---Absolutely.

- - - when he said I’ve never seen kids like this?---Yep.

You took that and effectively ran with it. I don’t mean to be pejorative when I say that, but we have heard evidence saying that you did speak in these sound bites?---Yes. Unfortunately very, very few media interviews, if ever, are a comprehensive and considered examination of the issues that are being questioned. The vast majority of what is said is never broadcast.

So it wasn’t as if it was – you didn’t personally think, “They’re little thugs, they’re little villains.” You were saying that more for the public persona?---No. I still believed these were convicted criminals.

And if I said to you - - -?---And my opinion accords with that because a court has made that determination.

But even if somebody is a convicted criminal it doesn’t necessarily make them a thug?---If they have engaged in acts of thuggery such as assaults and sexual assaults, I would suggest it does. However, not beyond reformation, but yes.

In answer to that you were asked some questions about this by Ms Graham for CAALAS and – about wrapping up the identity of a young person into the behaviour that they had done previously?---Yes. Are you particularly thinking of an individual or are we still talking about general prospects – propositions?

I’m thinking of an individual?---Okay.

Sir, just because somebody breaks into a house in their childhood doesn’t mean that they’re always going to continue down that path?---Absolutely not. I broke into a couple of houses when I was a kid, got into trouble. I am the only Attorney-General that is a self-confessed housebreaker.

And it was as a result of the intervention and assistance that you received that you went on to become the Attorney-General?---I had loving parents, but unfortunately even in their attempts to correct me they exposed me to other criminal acts which were deep and profound and had a lasting effect. Eventually, after I realised how destructive my attitudes had become, without ever having perpetrated violence against a person, I made a decision to change my life and I sought assistance, but


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simple assistance, it didn’t cost a fortune and from that I went from a very vulnerable fractured, if you like, human being, to the Attorney-General of the Northern Territory, a fact of which I’m proud, and by the way nothing of what I’ve said to you isn’t already on the public record.

Sir, if it was as a result of that simple assistance that didn’t cost a fortune, why did you not give these young people that opportunity?---Because I was trying to, through the Vita Review. You’ve got to remember I had a Corrections system and part of the problem with – with custody of young people is that they were in custody largely for such short periods of time, with very rare exceptions. So your ability to bring those sorts of influences to bear are very limited. Hence my focus on people who were in custody for a longer time, in the adult system, and – you know, the – I believe in the Closing the Gap Report still shows a shining light on the Sentenced to a Job program and other things that I did in that system, as this benchmark. I would love to have done that for kids and eventually, when the system got to a point in 2014, took steps in that direction, hence the Vita Review and everything that subsequently followed.

Sir, let’s talk about what subsequently followed 21 August 2014 then. The young people from – that were in the BMU including AA, AB and AC, were taken to an adult facility?---Yes, I understand they were.

Now, given the unprecedented requirement that those officers in charge of Don Dale needed to use CS gas did you take a more active role in how it was that these young people were being managed?---No, because I wanted to improve systems. Once again, when you’re at this level the individual dealing with people is a matter for the operational nature. Can I also say - - -

Please?---Don Dale staff did not use the gas. The gas was used by Corrections officers, because Don Dale staff were incapable of dealing with the issue that faced the Commissioner there and then on the ground.

Sir, I want to ask you about the conditions that those young people were then housed in while they’re at Holtze. You know nothing about that because you’re a systems – you’re in charge of systems?---The – they would have – I would have known in the sense that I was aware of the physical shape of Holtze.

So - - -?---What cells they were placed in, no.

But going back to the systems, you would say that as the Minister for Corrections, as the Minister for Children and Families at the time that it was imperative that the cultural institution of Don Dale or youth justice would be one that respected young people?---I would have – I wanted that to occur. I don’t believe that the physical structure of Don Dale enabled it for the most basic of human functions.

But, sir, I’m talking about respecting a young person?---Yes.


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Respecting them by not calling them a thug, respecting them by giving them an opportunity to reform as you were given?---Yes, I know, but there was no shortage of people calling me a thug along the way either, but this is the point: is that the circumstances of these young people are genuinely tragic, there’s no doubt about it, but not every young person who’s exposed to tragedy lives out that tragedy. In fact, only a fraction of them do. They end up in the BMU, sadly, as a result of that conduct. I would hope that they have a road to Damascus conversion. I hope Mr O’Brien’s client finds something more validating than his past, and if he does: great.

Sir, do you not see though that you had an obligation, indeed a responsibility, to assist those young people to that road?---Yes. Which is why I – particularly post 2014 I went and got the Vita Review done and we changed systems and I refer you to the many pages in the 14, sorry, the 1516 report.

You have talked about the Vita Report. I am sorry. I realise I’m out of time?---You’re asserting, essentially, by your question that I did nothing, that is not true.

What I’m asserting by my question is that you created a culture, an institutional culture right from the top, right from the head, of disrespect to these young people, of devaluing these young people, and that carried right through to the actions of the Youth Justice Officers who were charged with looking after them?---Well, I reject that assertion entirely.

Thank you. Nothing further.

MR MORRISSEY: Commissioners, I had managed to edit out all of my matters, but I think arising from some questioning that has occurred, there’s a matter that I think I will have to put to Mr Elferink in fairness now. Could we please have brought up on the screen – and I should do this before Mr Harris has his moment.


<CROSS-EXAMINATION BY MR MORRISSEY [6.31 pm]

MR MORRISSEY: Could we have please tender bundle 43 of the bundle – tender bundle dated 18.4.17. This is a flash brief. Now, I just want the witness to be provided – sorry, I’m going to give you a better version of this. Perhaps the Commissioners should have a copy of this as well. So an unredacted version IS - - -?---Yes, I have it in front of me, sir.

I just indicated that I provide a copy to - - -

COMMISSIONER WHITE: Mr Harris.

.ROYAL COMMISSION 27.4.17 P-3215 J.W. ELFERINK XXN©Commonwealth of Australia MR MORRISSEY

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MR MORRISSEY: - - - Mr Elferink’s counsel. Yes.

So you’ve been asked some questions about your knowledge of the young persons who were placed in the BMU following the escape of custody that happened on 2 August. Do you see that?---Yes.

Now, the names don’t matter. What I ask you to note there and acknowledge is the second column?---Yes.

Now, perhaps if you look at the heading. This is a document that was?---I see, yes.

A brief that came to you. You agree that this is a document that wasreceived?---Yes.

And when you received it, it wasn’t redacted in the way that’s on the screen?---That’s right.

Now, do you agree that of the inmates listed numbers 1, 2, 4 and 5 were, in fact, on remand?---Yes.

And that number 3 was a sentenced prisoner, or sentenced young person I should say?---Mmm.

And that when he’s been asked questions about this issue, in fact, the reality is that in assessing how to characterise those people, do you now accept that four of them are, in fact, on remand?---Yes.

Alright. Commissioners, sorry, could I offer the redacted version that’s on the screen and just indicate that what will be done is that the greyed out item that the Commissioners have will be re-redacted, getting rid of all the of the information except for column 2, which has the remand, remand sentenced, remand, remand. That’s the way it will be done.

COMMISSIONER WHITE: That’s fine.

MR MORRISSEY: On that basis I offer that for tender.

COMMISSIONER WHITE: Thank you. Exhibit 326.

MR MORRISSEY: Thank you. If that could be returned.

COMMISSIONER WHITE: I beg your pardon. Yes, it’s in – it should be.

EXHIBIT #311.43 FLASH BRIEFING

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THE WITNESS: Can I have a copy of it, though. I will need to refer to it, I suspect. Are you questioning me on it, or are you just - - -

MR MORRISSEY: No, no. That’s - - -?---I thought you were going to cross-examine me on it further.

No, I’m simply establishing the fact that you were told that four of the five were on remand?---Sure.

COMMISSIONER WHITE: Thanks, Mr Harris.

<RE-EXAMINATION BY MR HARRIS [6.35 pm]

MR HARRIS: I will only be an hour or so, Commissioners. I only have two topics and they’re both very brief. The first one, could we have exhibit 324, the goody list as it’s been described, not by me. You’ve been asked about this list. Can I ask you to go to item 10?---Yes.

Item 10 says, “Fast track HOPE courts”?---Yes.

And HOPE is in capitals. Is the HOPE Court named after an initiative by Justice Alan Hope who’s a US judge based in Hawaii?---No, it’s not. Judge Alm, based in Hawaii, is the gentleman.

Of course. I should be able to read my - - -

COMMISSIONER WHITE: I think HOPE is an acronym for the better name of that program, isn’t it, Mr Harris?

MR HARRIS: Yes, it is. I’m sorry.

COMMISSIONER WHITE: You’re just demonstrating that it’s 25 to 7.

MR HARRIS: And I can’t read my own handwriting, Commissioner. Justice Alm was the Hawaiian judge associated with that program?---That’s correct.

Yes. And can you give a complete – a very brief description, if you can, of what that program entailed?---Essentially an offender is – signs up to a deal which essentially means that if they should breach the terms of their parole that they are dealt with by a very expeditious process. The net result of that is that justice is very swift and instant. If there is a breach, for argument – let’s say a positive drug test comes back or some such thing, the offender understands they will go to jail. However, the court will turn its mind to extenuating circumstances so if the person clearly has been simply taking drugs, then they will probably cop the remainder of their full sentence, which in some instances in American States, but particularly in Hawaii, is years.

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One particular example I became aware of: a fellow missed – missed a drug test for his wife’s – birth of his wife’s baby, his baby, turned up the next day, turned up negative. He still had to go to jail because he had breached his parole condition, but, of course, he was held till the rising of the court.

Yes?---The net result was that he – they were potentially unrepresented but the matter was dealt with very, very quickly and it was out of the way.

And is it the position then that rather than for a breach which might be relatively minor, being required to serve the balance of their sentence and then spend a significant potential period of time in incarceration, the more summary process meant that there was still a sanction but it was a sanction that meant that they were returned to the community and not in prison, otherwise for the balance of their sentence?---If they’re standing there going, “Mea culpa maxima” without representation his Honour will say, “Yep. Cop it. Understand it. You’re going in for a week,” two weeks, or a day, whatever is appropriate, and the matter is disposed of there and then. I watched Judge Arm in his courtroom dispose of about 40 matters in the space of six hours.

Right. Now did you, having become aware of that program, in conjunction with your colleague, the Attorney-General of the ACT, who was the attorney in the Labor Government in the ACT at the time, between you share the cost of bringing Judge Alm to Australia to address judges and magistrates in the ACT and the Northern Territory - - -?---That’s correct.

- - - in relation to this initiative?---Yes.

And did that take place in the Northern Territory as well, to your knowledge?---In this building.

Yes. And is that aspect of the sentencing armamentarium of the Northern Territory courts still being used to your knowledge?---As far as I understand, the legislation is broad enough to enable such a program to operate without legislative amendment. I certainly made it clear that should I – should it happen within my time that I was the attorney-general that I would – if legislative amendment was required, I would be prepared to do it. There was initially some uncertainty on the part of judges in the Northern Territory of both tiers of the court system, however Judge Arm addressed them and assured them that it produced better outcomes and the statistical work being done in the United States indicates that there was a substantial improvement in conduct and particularly the acknowledgement of guilty conduct.

Why did you promote that?---Because once again it was a way of getting people to acknowledge their wrongdoing without having to necessarily incarcerate them for long periods of time, as well as a system which was quick, and people understood it. The thing that really struck me was that every single individual, and some of them, you know, weren’t the brightest bulb in the Christmas tree still understood what was


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happening around them and it was actually reminiscent of a very quick summary system that they understood and responded well to.

Did you ask Judge Alm if he had done a thesis on the efficacy of this process?

MR O’BRIEN: I object to this – if this is about adult sentencing or children sentencing, I’m unsure of the difference. Maybe it does relate to children, but it has to be within the term of reference, otherwise it’s irrelevant.

COMMISSIONER WHITE: Yes. Mr O’Brien, I was hoping that we might get to this. My impression is that it is just rolled out for adults?---I saw it in the adult context. Whether or not it - - -

Yes. Not relating to youth justice at all.

MR HARRIS: I’m happy to leave it there.

COMMISSIONER WHITE: And that it has been evaluated only with respect to adult drug users and not the other offences which in theory it could - - -?---Indeed.

But because it is adult then I think perhaps we might move on from praising this system, Mr Harris.

MR HARRIS: It’s dealt – simply to respond to the tough on crime - - -

COMMISSIONER WHITE: It was a positive.

MR HARRIS: - - - free for all that we have had so far.

COMMISSIONER WHITE: Yes. Yes.

MR HARRIS: Thank you, Commissioner. The next topic and the last topic, might the document which is on the supplementary tender bundle, the one I think from maybe 18 April, it has the ringtail number DAJ0012.0044.2005. That’s the document. It’s a substantial document, but you were asked some questions about the early intervention youth boot camp program. You made reference to some of the other programs, Balunu healing camp, Brahminy and circuit-breaker run by Tangentyere council. You were also asked some questions about whether or not there had been any evidence which indicated the efficacy of these boot camp programs and you said words to the effect, “It depends on the boot camp program you’re talking about.” And you made reference to the Operation Flinders model; correct?---Yes.

And that’s referred to in your statement?---Yes.

The document that’s before you, and happily I’m not going to ask you to read it, but it’s a substantial document, and is that a report that was provided to the government


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in relation to the evaluation of the early intervention youth boot camp program that your government took to the 2012 election?---Yes.

Yes. Have you seen this document before?---No.

Right. Thank you. Might that document be tendered, please. It doesn’t have to have been seen by Mr Elferink. The position is - - -

COMMISSIONER WHITE: Not – certainly doesn’t have to be in our system. If whatever else – it might be, somewhere else. Mr Morrissey?

MR MORRISSEY: I don’t have any objection to that being tendered in any event.

COMMISSIONER WHITE: It’s another program, and it’s a relevant document.

MR MORRISSEY: Yes. The boot camps have recurred in discussion.

COMMISSIONER WHITE: They have.

MR MORRISSEY: I offer it for tender.

COMMISSIONER WHITE: Yes. Thank you. I will just check which - - -

MR HARRIS: I have no other questions, Commissioner.

COMMISSIONER WHITE: Thanks, Mr Harris. Elizabeth, is that 311 point something?

MR ..........: We will just – we will find it.

COMMISSIONER WHITE: And what’s its number? No. I couldn’t find its number either. Can you give me the number?

MR MORRISSEY: We’re told 120B.

COMMISSIONER WHITE: Thank you. Exhibit 311.120B.

EXHIBIT #311.120B

MR MORRISSEY: Commissioners, it falls to me to thank Mr Elferink for persisting through time. It has been – it assists the Commission and everyone else and those witnesses coming tomorrow will also be grateful, and can we also express gratitude to the court staff who have sat such long hours.


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COMMISSIONER WHITE: We particularly endorse that and our transcriber, who, I think, I have called heroic on other occasions, but I’m not sure if there’s anything above that. Thank you very much for transcribing so diligently for us today and for the other of the staff. What time would you like to start tomorrow, Mr Morrissey? Don’t tell me lunchtime because I mean – what time - - -

MR MORRISSEY: Your Honour, I believe – just – may I seek instructions? I’m instructed that 9.30 would be a suitable moment for the witnesses anticipated.

COMMISSIONER WHITE: Thank you. Alright. Well, we will adjourn then until 9.30 tomorrow - - -

MR MORRISSEY: We’re grateful.

COMMISSIONER WHITE: - - - and again thank you, Mr Elferink - - -?---Thank you, ma’am.

- - - for assisting the Commission in its work.

<THE WITNESS WITHDREW [6.44 pm]

MATTER ADJOURNED at 6.44 pm UNTIL FRIDAY, 28 APRIL 2017


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Index of Witness Events

JOHAN WESSEL ELFERINK, SWORN P-3084EXAMINATION-IN-CHIEF BY MR MORRISSEY P-3085

THE WITNESS WITHDREW P-3128

JOHAN WESSEL ELFERINK, RECALLED P-3129EXAMINATION-IN-CHIEF BY MR MORRISSEY P-3130CROSS-EXAMINATION BY MR BOULTEN P-3149CROSS-EXAMINATION BY MR LAWRENCE P-3164CROSS-EXAMINATION BY MS GRAHAM P-3176CROSS-EXAMINATION BY MR O’BRIEN P-3193CROSS-EXAMINATION BY MR O’CONNELL P-3201CROSS-EXAMINATION BY MS LEE P-3210CROSS-EXAMINATION BY MR MORRISSEY P-3215RE-EXAMINATION BY MR HARRIS P-3217

THE WITNESS WITHDREW P-3221

Index of Exhibits and MFIs

EXHIBIT #321 STATEMENT OF JOHN ELFERINK DATED 30/03/2017

P-3086

EXHIBIT #311.74A CABINET HANDBOOK P-3088

EXHIBIT #311.20C COMMONWEALTH STATEMENT OF MINISTERIAL PRINCIPLES

P-3090

EXHIBIT #311.42D EMAIL FROM MR ELFERINK TO SENIOR PRISON OFFICER

P-3097

EXHIBIT #322 ITINERARY P-3129

EXHIBIT #322 JOURNAL FROM DON DALE DATED 05/06/2014 P-3131

EXHIBIT #324 BRAINSTORMING EMAIL SENT TO ADAM GILES

P-3190

EXHIBIT #325 EMAIL REFERRING TO LITTLE CUNTS P-3190

EXHIBIT #311.43 FLASH BRIEFING P-3216

EXHIBIT #311.120B P-3220

.ROYAL COMMISSION 27.4.17 P-3222©Commonwealth of Australia

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transcript 27 april 2017 web viewmr morrissey: yes. i think i won’t read it. anyway, you have...

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