transcript 28 april 2017 web viewalright?i might have made commentary and used the word tough on...

AUSCRIPT AUSTRALASIA PTY LIMITEDACN 110 028 825

T: 1800 AUSCRIPT (1800 287 274)E: [email protected]: www.auscript.com.au

TRANSCRIPT OF PROCEEDINGS

O/N H-772907

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

9.49 AM, FRIDAY, 28 APRIL 2017

Continued from 27.4.17

DAY 33

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 P. MALEY appears for Adam GilesDR K. HANSCOMBE QC appears for Jared SharpMR J. TIPPETT QC appears for Ken MiddlebrookMS T. LEE appears for AA, AB and ACMR J.B. LAWRENCE SC appears for ADMR S. O’CONNELL appears for AN

.ROYAL COMMISSION 28.4.17 P-3223©Commonwealth of Australia

5

10

15

20

25

30

35

40

MR MALEY: If it pleases the Commission, my name is Mr Maley and I appear for Mr Adam Giles, who is answering a summons to appear.

COMMISSIONER WHITE: Thank you, Mr Maley.

COMMISSIONER GOODA: Before we commence today, we would like to touch on the forward program for the Commission. Since the letters patent were issued we have been working through the issues related to the protection of the detention of children in the Northern Territory through submissions, engaging with communities, expert forums and meetings, we have heard the experiences of families, communities, individuals and those working in the system. They have told us of their stories and perspectives on care and protection of children and their detention. These contributions are invaluable to our work in understanding the issues and considering the responses that may be appropriate.

We encourage those who still wish to tell us these stories to do so. The next hearing is scheduled to commence on 8 May and will examine the issues that arise along the pathway into as well as a process of leaving detention. In that week, we will be hearing evidence about policing and young people, charging and arrest, bail and remand, diversion programs and youth justice conferencing, as well as examining the issues in the youth justice process from the perspective of both prosecutors and lawyers. In late May, the focus of public hearings then turns to the matters of care and protection of children in the Northern Territory.

More details about our forward program can be found on our website. These hearings, to be conducted in both Alice Springs and Darwin, follow and build on the work we have already undertaken.

COMMISSIONER WHITE: Now, Mr Morrissey.

MR MORRISSEY: Thanks Commissioners. Thanks. I call Adam Giles.

COMMISSIONER WHITE: Thank you.

<ADAM GRAHAM GILES, SWORN [9.51 am]

COMMISSIONER WHITE: Thank you, Mr Giles. Would you kindly sit down. Thank you, Mr Morrissey.

<EXAMINATION-IN-CHIEF BY MR MORRISSEY [9.51 am]

MR MORRISSEY: Thanks, your Honour.

.ROYAL COMMISSION 28.4.17 P-3224 A.G. GILES XN©Commonwealth of Australia MR MORRISSEY

5

10

15

20

25

30

35

40

45

Thanks, Mr Giles. Would you state your full name, please?---Adam Graham Giles.

And from the period 2012 until the departure from Government in August 2016 of the CLP, what was your occupation?---I was the Member for Braitling as a local member of Parliament and also had other responsibilities including ministerial and chief ministerial.

Very well. Can you just indicate when it was you assumed the post of Chief Minister?---March 2013.

And did you hold that post right through until the legs in August of 2016?---Yes.

And what’s your current occupation?---General manager.

Very well. Now, you were elected to the Legislative Assembly for the member for Braitling in 2008; is that correct?---Yes.

Did you ever hold any portfolios or shadow portfolios in the area of youth justice?---Not to my recollection.

Do you recall who it was that did have those portfolios in the time in Opposition between 08 and 12?---No, I don’t recall.

Alright. Do you recall that going into the election – there was an election scheduled by virtue of Northern Territory practice and law for 2012; is that correct?---Yes.

And in 2011 was your party led and led into the election by Terry Mills?---Was that a question?

Yes?---Yeah.

What – is that the case? Yes?---Yeah.

And do you recall a document produced by Mr Mills relating to youth justice issues, although in part to youth justice issue called Tough Love Beyond Wildman River?---I remember the name. I don’t remember the document.

That’s in supplementary tender bundle 18 at tab 2A. I wonder if that could be brought up on the screen, please. While this is being brought up, your situation is this: that in 2017 you may have difficulty remembering specific documents given the many thousands that you’ve seen over the – your time. Just feel free to point out that there’s a document that you may have seen it, you may not, or you can’t remember, or you didn’t see it, or you did see it?---Okay.

Just let us know about that because it may not always be apparent. Very well. Sorry. We’re just bringing that up now. So there’s an attachment on the email that’s on the screen here and that’s – that is coming up. Alright. Just take a moment and have a


5

10

15

20

25

30

35

40

45

look at that. Alright. Do you see that document headed Tough Love Beyond Wildman River?---Yes.

Alright. And did that contain some, if you like, some prospective policies that the CLP was meaning to follow if elected to government?---Look, I can’t remember exactly what that document was, but I think it was about the establishment of setting up boot camps.

Yes, you’re correct?--- ..... set up boot camps.

Thank you. Well, your memory is good, because that is correct. Do you recall that there had been some discussion under the previous government of setting up camps and your government, or your party took the view, that this could be pursued but with a boot camp orientation?---I don’t recall the previous government wanting to set up camps other than the Barkly Work Camp, but we had a philosophical approach that we wanted to try and keep people out of youth detention and put them through a farm type camp or what you referred to as a boot type camp, to try and get Aboriginal elders in to give people some support and diversion and try and divert them from the youth justice system.

Now, what you’ve said there by way of memory is supported by something down the screen. If we could just scroll down, what I would like Mr Giles to be shown is on the right-hand column – if we could scroll down a bit further than that, please – yes, I think that’s – if we scroll down to – yes, good. So do you see on the right you’ve got, “The program must provide sufficient structure.” And there’s a series of paragraphs there?---Yeah, I see that.

Alright. So – and seeing that – I won’t grill you upon that question. That was the plan, wasn’t it, to introduce something by way of boot camps which had the benefits and requirements that are set out in those paragraphs?---Mmm.

I tender that document.

COMMISSIONER WHITE: Exhibit 311.018.

EXHIBIT #311.018 TOUGH LOVE BEYOND WILDMAN RIVER DOCUMENT

MR MORRISSEY: Thank you for that.

Now, we’ve heard some evidence from Mr Elferink yesterday concerning the notion of tough on crime concept and he was asked questions. The position he put – I’m going to ask you to comment on it – tough on crime was not limited to being a specific policy, but it was a stance that coloured many particular policies in various areas, including youth justice. Would you agree with that analysis?---No, not really.


5

10

15

20

25

30

35

40

45

What do you say is the significance of the phrase “tough on crime” as deployed in - - -?---Well, I would use the terminology on reflection that tough on crime is about making sure the streets are safe for people to walk down the streets at night and – or in the daytime and certainly, as my time before coming into Opposition, and during my time in Opposition, there were many occasions where people didn’t feel safe, so I thought we needed to be tough on crime as a statement, rather than a philosophical underpinning through all other policies.

Alright. But the origin of – if you like, the motivating force behind the tough on crime stance that you gave articulation to - - -?---Yep.

- - - was protection of the community?---Well, protection of the community, but also protection of the kids because many of the kids, and adults – because most of my commentary in this matter has always been in terms of law and order has always been about adults, more so about adults than children. I always thought too many people hurt themselves, and their families, and their communities. So being tough on crime isn’t about incarceration or police numbers or cells. It’s also about how you protect someone. For example, someone who is a chronic abuser of alcohol and the detriment they cause themselves and families and their community. So taking a tough approach to try and get that individual off alcohol, to help them, is the same sort of approach.

Yes. Well, just – can I just explore that a bit further. Do you see that you’ve used the concept of tough on crime, as you’ve just articulated, in a variety of different settings throughout your time in government and – perhaps let me take that back. You’ve used tough on crime as a phrase in relation to various different initiatives that the government was pursuing?---Well, I can’t comment on that. I don’t have any recollection. We used a different – range of different comments about a range of different areas across a range of different portfolios across a range of different times. So you might have more information about some of that commentary than I have, sorry.

Alright. Well, I will take you to some of your statements subsequently. We heard from Mr Elferink yesterday and, Commissioners, this is at transcript 3144 to 3145. He was asked for evidence or studies or expert opinion that showed that increased sentencing or increased remanding, or harsh treatment in detention of young people has any effect on reducing youth crime or youth recidivism, and his evidence was there was no such evidence. Do you have any studies, collections of evidence, or expert opinion different to that, that shows that harsh treatment and harsh sentencing does have an effect on reducing youth .....?---Look, I don’t have any documents on me right now.

Did you have ever any such documentation?---I can’t recall. I remember – the thing that I do remember in general was some reference points to other studies that had been done around the world but what they were at the time I can’t recall, I’m sorry.


5

10

15

20

25

30

35

40

45

Alright. And in the adult corrections space you advanced a variety of suggestions over time and some initiatives increasing sentences, in some cases considering mandatory sentencing, a variety of sentencing measures. And you agree that in the adult space the notion of deterrence was a notion that had currency. In other words: a harsher measure was supposed to deter adult offenders from doing it again, and deter the community, and deter the individual offender from like conduct. Did you see that youth justice and particularly orders of courts in relation to bail and in relation to sentencing had any deterrent value?---Well, I don’t accept the premise of your question at the start and the statement you made, but in terms of - - -

Well, let’s just clarify. You don’t have to proceed on a false premise. What’s the problem with the question?---Well, I can’t remember the interviewing or the commencing statement.

Alright. If you can’t remember it, I will deal with it a different way?---Yes.

I don’t want you to caught out on it.

COMMISSIONER WHITE: It’s not a question of being caught out. It was a very long statement, Mr Morrissey. The use of longer sentences for deterrent purposes in adult prisons, I think, was the crux of it, Mr Giles, and you don’t agree with that premise?---Well, I don’t really have an opinion on it to be honest, Commissioner.

Alright. That’s fine.

MR MORRISSEY: Did you, at the time when you advanced heavy sentencing measures in relation to adults, have a view that these measures would deter adults?---The two driving forces motivating me was one to try and stop people in terms of recidivism, coming back into the prison system within a two year time frame, and trying to stop people going into jail in the first place. From a youth point of view, I didn’t want any youth going to jail. I thought if we could help those children through early intervention and not have them go through the system, I would be good, and if we reduce the recidivism. By way of background, and please check my figures because I don’t recall, but I think we were at an indigenous incarceration rate of 95 per cent and we had a recidivism rate of 79 per cent. And from my point, I wanted to – intensively, from an adult perspective, reduce that level of recidivism to give people an opportunity of a second start in life. And that’s the basis for that sentence of the job program that I’m sure you’ve heard about.

Well, I think in fairness to you, what you said there was something you articulated fairly consistently throughout your career, and I’m not going to dispute what you’ve said there. But what I do want to put to you is the question: what role did you see youth detention as playing within that structure? In other words, what you were hoping to achieve by way of reducing recidivism and diverting people away. Where that couldn’t be done, what was your vision of what youth detention was supposed to achieve?---Well, I didn’t take a broad perspective from a – setting a philosophical perspective on youth detention. What I wanted to do was make sure that the children


5

10

15

20

25

30

35

40

45

weren’t going into jail in the first place, weren’t committing the crimes, and if you ask me for my commentary on that I think there is too much of the system broken, particularly when it comes to family structures in the Northern Territory, and that’s what gets so many children in the crime space.

I apologise for pressing on this, but it’s a central matter to the Commission. So your position here is that you had the overall policy goal that you’ve spelled out, but you didn’t have a particular strategic approach to what youth detention was for and how it was to be managed?---No, that’s not correct at all.

Alright. Well, tell us what you did have then?---Well, there’s obviously a role for child detention where children have been deemed by the courts to need to be incarcerated and we accepted that as an approach. And we also thought that the – the purpose, or the role of being – or while you’re incarcerated was to try and be rehabilitated, offer as many education as possible and assist you not coming back into the system again.

Alright. Now, do you agree that from time to time, when speaking on youth justice matters, you linked your stance on youth justice to a more general stance of being tough on crime?---I didn’t speak a lot on youth justice matters, to my recollection. When I spoke on justice-type issues, if I spoke on them, they were normally from either a perspective as the local member for Braitling, rather than Chief Minister, or they were coming from the person responsible, being the Corrections Minister, or they were talking about more an adult perspective. Much of my commentary was in regard to adults rather than youth.

Did you have a media unit – as Chief Minister did you have a media unit?---Yes.

And did the Government take strategic advice from consultants, either within government or outside, as to how to broadcast your message, your policy message to the electorate through the media?---Not that I can recall.

No. Was your advice – we’ve heard from Mr Elferink that a tough on crime stance was seen as being electorally beneficial. Do you agree that that was the case during your term of Government?---I wouldn’t use those language. I would say, certainly, that law and order is probably the number one issue on people’s minds in the community, particularly if you went through Katherine and Alice Springs, I think probably Darwin it’s more likely to be a – probably the second point, maybe the first for some people, but probably the second in a majority.

Was it a strategy of the Government when you were part of that government, and indeed when you were leading it, to consistently reiterate that your government was tough on crime?---No, our two key areas of importance were fixing the budget and building the economy. They were the number two areas – the two top areas.


5

10

15

20

25

30

35

40

45

Yes. Okay. That may be so, but the question is: did your government advance consistently – perhaps I should take that back. Did your government intentionally reiterate in the media that you were a government who was tough on crime?---No.

Did you yourself personally have a policy of reiterating that your government was, quote, “tough on crime”?---We didn’t have a policy to do that definitively.

Did you do that though?---No. Not to my recollection.

Alright?---I might have made commentary and used the word tough on crime, but it wasn’t a deliberate attempt or a strategy driving anything forward.

And – very well. Thank you for that. Now, in August of 2012 the CLP came to power with Mr Mills as Chief Minister; is that?---We came to Government, we don’t come to power. But yes, I take your point.

I take your point as well. But it was a single house system in the Northern Territory?---Always ..... rule: you don’t come to power, you come to government.

Yes. You had a majority in the only house, didn’t you?---Unicameral system.

Thank you. So anyway – and you were Transport Minister up until the time you assumed leadership; is that correct?---Yes.

Very well. Thanks?---To my recollection.

That’s okay. Now, could we go to supplementary tender bundle 18 April tab 109. Sorry, not 109 but 10G. So an article in the Australian is coming up here. Hopefully you’ve seen this article already. Now, in this article you – the headline of the article says, as it’s going to come up in front of you, Lock Up Alice Youth Crime Ringleaders. Sorry, Mr Giles, there’s a bit of a ..... okay. So the reference to this document is supplementally tender bundle 18 – sorry, I will give you the ringtail reference: 0005.0010.0074.

COMMISSIONER WHITE: Is that correct? Would you just make sure that was correct because it’s not what I’ve got on my list, Mr Morrissey.

MR MORRISSEY: Sorry. I will just read that again. So RCN.0005.0010.0074.

COMMISSIONER WHITE: The reference that I have is RCN.0005.0100.0074.

MR MORRISSEY: Perhaps we will park that. I don’t want to delay matters on this.

COMMISSIONER WHITE: No, we will find the document, but it’s just that - - -

MR MORRISSEY: One zero – okay, we will try that again. So 0005.0100.0074.


5

10

15

20

25

30

35

40

45


MR MORRISSEY: So there’s identified there’s an issue with the index on this one. The correct number is 0005.0010.0074.


MR MORRISSEY: Commissioners, if there’s an issue with this document, Mr Giles is here and I propose to move on to something else and perhaps we could deal with that at the end.

COMMISSIONER WHITE: We will just find out what the problem seems to be.

MR MORRISSEY: I have some other questions which I will pursue, if I may, Madam Commissioner, not to not look for this, but there is a general matter that I can deal with so the witness doesn’t sit silently.

Mr Giles, have you been in a position to follow the proceedings here?---No, I haven’t, sorry. Or have you been ..... - - -?---Interstate on holidays.

Yes. Well, I will just put a general proposition to you, and then I will ask for some comments?---Yep.

We’ve heard evidence that, at least from 2009 onwards, the government – governments of the day, both the Labor Government up till 2012 and the CLP Government subsequently, were repeatedly warned that they had a major problem with the staffing model that they were using in youth justice, which had a number of consequences. Those in short being, because of the staffing model there were often inadequate numbers of staff, very frequently overtired staff, a casualised workforce, a workforce that was very difficult to make available for training, with the result that in youth justice the training levels of staff were very poor indeed, and that this led to some quite dysfunctional behaviour by staff within the centres. Now, firstly, regardless of whether you followed proceedings or not, are you aware that the evidence here has more or less unequivocally established those facts?---Well, I haven’t followed proceedings, so I don’t know what’s been discussed. What I can say to that is that I know that when we came to government in August of 2012 - - -

Just stop for a second, sorry. I think you misunderstand the question. I am going to ask how you dealt with it and what happened in 2012. This is a preliminary question. Do you now know there were major problems within the system as have been identified in this tribunal of the type I just described?---Well, I didn’t know that going back to 2015, the specific issues about staffing, staff training as part of your preamble.


5

10

15

20

25

30

35

40

45

Yes?---What I did identify in around 2014 or 15 there was a report done, I can’t remember what report it was, but there was a report done that indicated – it might have been Michael Vita or Colleen Gwynne’s report, I’m not sure. But there was a report done that said that there needed to be improved levels of training and it was at that point in time when I was advised that levels of training were insufficient, and we sought to change that from a training perspective, that’s what I am aware of.

Alright. Now, I appreciate there were a large number of reports and that you as Chief Minister had to deal with reports from departments, as well as merely from Corrections. Your recollection is at least of seeing reports by Colleen Gwynne and Michael Vita; is that correct?---Well, I don’t recall actually seeing the reports, but I’m aware of the reports. I remember, without going into deliberations of Cabinet confidentiality, I remember Corrections Minister telling us about different reports at different times. I can’t remember when, where, or specific reports, but I do recall that there was a challenge with training and identification going to say before that I knew that we had inherited a particularly broken system with child protection when we came to government. I didn’t realise how bad youth detention was, or child detention was at the time, until – throughout the term of being in Government.

Yes. Thank you for that. And that allows me to focus the question a bit further. Concerning the problems that I’ve just set out about staff and their training in youth justice, as best you can, when was it you first became aware that that was an issue that needed to be addressed?---Not until after we had a verbal briefing in Cabinet at one time after a report was undertaken and I – sorry, I can’t tell you in what year that was, to be honest.

Yes. You - - -

COMMISSIONER WHITE: There – sorry, perhaps - - -

MR MORRISSEY: Yes.

COMMISSIONER WHITE: There were – was there any event that prompted the discussion, Mr Giles?---No. There were – I mean the – as you would be – as you know, Commissioner, there’s a range of reports been done in these areas for ages, and - - -

Of course?---For a long period of time, many years, and there was one particular report that identified some of the training aspects and I don’t even recall the details of that report in any perspective. I remember, after I had called for the Royal Commission, set the Royal Commission up and taken on the Corrections portfolio, I was then briefed a lot about the implementation of a lot of the recommendations out of those reports. So I actually learned about it after I had called and set up the Royal Commission, to be perfectly honest.


5

10

15

20

25

30

35

40

45

MR MORRISSEY: On the training issue, when you first commenced your answer, you referred to reports and your memory took you to the Gwynne and Vita reports?---I think that was - - -

..... but your interest in training, or your awareness of training as an issue, was that before or after the tear gassing incident in 2014?---Look, I can’t recall. And when I say I was made aware of a training issue, it was really in the – in discussions around budgetary allocation and some of the findings out of those reports but I just – I can’t remember the detail, I’m sorry.

No, I won’t – there’s some detail I will take you to in documents, that’s fine, but just doing the best you can from your memory, you’ve mentioned the Vita Report. Do you think it is that the Vita Report, which we know did contain some training recommendations, do you think it’s that report that triggered your awareness of training issues or do you think you already had an awareness?---I can’t recall. The thing that triggered my awareness mostly was after I called and set the Commission up and got briefings about the Vita Report, and had a full understanding of how we had implemented the 16 recommendations or so forth.

Could we please have on the screen supplementary tender bundle from 18 April tab 15B. You see there a message from the office of the Chief Minister?---Yeah. Could you make it a bit bigger so I can read it.

Yes. Just familiarise yourself with the - - -?---You see the top line there, economic growth and paying back Labor debt, they were our two priorities.

Certainly. Could the witness please be shown the following page, that being one with 194. Could we scroll down so that the – perhaps we could zoom out a little bit. I just need the witness to be able to see there – on the column on the right you will see security is being upgraded at Don Dale Detention Centre?---Yeah.

You see that. Could we just expand it so the witness has the chance to read it. Thank you. Just read through that. Do you see a section in your report there – I said “your report” but in the message from the office of the Chief Minister, that:

Security is being upgraded at the Don Dale Detention Centre after youth damaged infrastructure over the weekend.

Do you see that?---Yes.

I’m directing you to the two bottom dot points do you see it says:

Security at the centre will be improved, including upgrades to infrastructure, and increased staff training.

And then there’s – the final dot point concerns the department investigating?---Yeah.


5

10

15

20

25

30

35

40

45

Now, I want you to think back there as to – do you recall the incident, first of all?---No, I don’t recall the incident.

Concerning staff - - -?---I don’t recall the incident or that document.

Alright. You don’t recall the document, but - - -?--- ..... to put these documents out. I think one of my staff members would talk to all the officers and say, “What’s been happening?” Collate it in a format and send it out once a week, once a month. So – and the chance of me reading any of them was very small..

Well, you had to be responsible for what went out from your office; correct?---I take responsibility for accountability, absolutely, but I don’t have an opportunity of reading every single thing that comes through, between the Chief Minister: 34 government agencies, you know, 20 briefings a day, 30 files a day, a range of different things.

Well, I understand a lot comes across your desk, but this is something you were putting out yourself; correct?---Well, the office put it out, yes, under my purview.

Security was being improved, including upgrades to infrastructure and increased staff training. Can you recall what the issue was with staff training there?---No, I can’t recall, sorry.

So do you think – do you exclude that you were told at that time of the major shortfalls in staff training – perhaps I should say made aware by Mr Elferink of the shortfalls in staff training at that time?---Look, I can’t recall. Every perspective, I wouldn’t have been informed, but I can’t recall.

Yes. I tender that document. Now, in - - -

COMMISSIONER WHITE: Exhibit 311.015B.

EXHIBIT #311.051B MESSAGE FROM THE OFFICE OF THE CHIEF MINISTER

MR MORRISSEY: I have to take you back to a particular attempt to get a matter before Cabinet. I won’t ask you what was discussed in Cabinet in the course of that. Could we please have on the screen supplementary tender bundle 18 April at tab 51. Now, what you have here is a departmental document from the Commissioner addressed to the Minister for Correctional Services. That’s not a document that was addressed to you, and in the nature of things it’s not a document you would expect to have seen. So really what I’m putting to you, just the same, is matters that – proposals that came to Cabinet and you can’t discuss, obviously, that was said about them in Cabinet. Could we just go to page 7407. Commissioners, I mean to ask questions here using this document as a platform of topics, bearing in mind that the


5

10

15

20

25

30

35

40

45

witness hasn’t seen it, so that he understands - - -?---Can you tell me if the document has been signed.

It’s not being suggested that – it’s not being suggested that you saw it. We have evidence about this document. This was a proposal that was worked up and it went through various changes and so on?---Can you let me know if the Minister ever signed it.

He has, but in fact whether he signed it, that – even if he signed it that doesn’t mean that you saw it?---No. It doesn’t mean he saw, it if it’s not signed. So I was just wondering - - -

No. That’s okay. Don’t concern yourself with that part of it. We’ve been through that. He has been asked about the document already?---Yeah, that’s all fine, but there are a range of documents that are circulated that are Cabinet-in-confidence documents that don’t even make their way to the Minister. So I want to make sure this is a real document that went to Mr Elferink, that’s all.

Yes. Okay, well, I can assure you - - -?---Because there would be plenty of drafts of this that might have been signed by the Commissioner.

I think we take your point, but it was signed. Just deal with the questions that are being asked - - -?---Have you got the signature page here?

You don’t need to be – if you need to be shown?---I just want to make sure it’s a real document, that’s all.

COMMISSIONER WHITE: Mr Giles, Mr Morrissey is actually just using this document for some subject matters for discussion with you, rather than – as I understand it, rather than the document itself as being a Cabinet submission document.

MR MORRISSEY: That is correct.

THE WITNESS: I’m just trying to ascertain if it made it to the Minister.

MR MORRISSEY: You don’t need to ascertain that for the purposes of the questions I’m asking you?---Okay.

And yes, just be aware too that it’s not being put to you as if it was a document of yours or that you said anything about - - -?---Yeah. That’s .....

- - - it. Okay? It’s really - - -

COMMISSIONER WHITE: It sounds like, Mr Morrissey, he’s just concerned that many emendations of these documents ..... we’ve heard evidence about that, Mr


5

10

15

20

25

30

35

40

45

Giles, and those that in fact were the ones that have been put forward have been signed and we’ve seen those.

MR MORRISSEY: Alright. Now, what I will ask you is some specific ..... do you have 7407 on the screen? You do. Thank you. So here what I want to ask you is whether or not you approve – whether or not you recall these requests or these – the recommendations coming to you to be, or coming to Cabinet to be considered. Look at (f). You see there that there was a recommendation to approve additional one-off funding of 5.8 million in 2014 to 5 for the minimum refurbishment of DCC Berrimah. Do you see that?---I see the point you’ve got on the screen.

Yes, that’s F. Do you recall that proposal?---No. And I don’t even know if there was a proposal for that.

Okay. Do you recall whether or not there was – I think it’s probably, you’ve answered it, but I just need to be clear. Are you saying there wasn’t, there was or you just don’t recall?---I don’t recall.

COMMISSIONER WHITE: Do you recall in a more general way that at this time there was, in fact, a request for further funding in respect of the youth justice precinct, to use as a – just a general word, about detention facilities, that some money needed to be found to work on the facilities?---There were always proposals for more money for all different facilities.

Yes, we understand that. That’s not a really responsive answer, though, Mr Giles. You recall what I asked you?---No, I don’t recall, particularly, that request.

MR MORRISSEY: So if you look - - -

COMMISSIONER WHITE: It was a general question. You might not remember particular sums, 5.4 million or 2 million or whatever the variants were as was massaged along?---Yeah.

But just that this was a topic for consideration?---To refurbish the old jail, yeah, I recall that conversation.

MR MORRISSEY: Thank you. Could we turn to (g). Approve the additional and operational personnel funding of 2 million in 2014/15 and then other figures moving forward which I won’t take you to. First of all: do you recall that precise proposal?---No.

Do you recall, in a more general sense, the topic of additional operational and personnel funding being raised as a request?---Not – not particularly.

No. Could we go to (h):


5

10

15

20

25

30

35

40

45

Note the transition from a casual detention centre staffing model to a permanent model will reduce DCS unfunded overspend.

And then it sets out some amounts there. Now, first of all, do you recall that precise proposal? Do you recall, though, the Department having an interest in a transition from a casual detention centre staffing model to a more permanent model?---No, I don’t. That sounds to me like an operational matter. That probably wouldn’t find its way to Cabinet.

Going to (l) – sorry, to (i), you see there’s a proposal there asking for the immediate establishment of a government task force to identify and implement consistent business processes across the youth justice continuum and identify and explore information management sharing solutions to enable the exchange and access to children and young people’s information across government, non-government organisations, and the private sector?---No, I don’t.

Now, do you recall that – I appreciate it’s quite specific in some ways, but do you recall that – do you recall that general topic being - - -?---No.

- - - of interest at the time?---No, I don’t.

Alright. Thank you. Sorry, I’m just reminded, perhaps I should ask you this. If you go back up the screen to (d), you will see here there’s a proposal that in principle the Alice Springs Youth Detention Centre should become the Alice Springs Holding Centre, whereas Aranda House was to be revoked as a holding centre. Do you recall that particular - - -?---I don’t recall that either, sorry.

Do you recall that as a topic that as a topic that - - -?---Don’t recall – I don’t have any recollection at all.

No. Okay?---I didn’t even think Aranda House was a youth facility.

Did you – were you aware, during your time in office, whether it was or not?---No, I’m not, no. Apart from reading on the screen.

Alright. Thank you for that. Now, could we go up to 7409, please, and paragraph 10. Now it appears that the submission identified at that point:

The current detention centre facilities in the Northern Territory do not meet the critical duty of care elements of separating detainees by age groups and by offence types, separating remand from sentenced detainees, and the appropriate management of a co-gender population. It is paramount that the Northern Territory detention centre infrastructure inadequacies are addressed to the Government meets its duty of care – so the Government meets its duty of care.


5

10

15

20

25

30

35

40

45

I’m sorry. Were you aware, or firstly do you recall, that particular passage?---No, I don’t.

Do you recall that issue being raised with you at that time, during the Cabinet submission process, in 2013 to ’14?---No, I don’t, I’m sorry.

Were you not made aware of concerns that the Northern Territory detention facilities concerns – that they were not meeting critical duty of care elements?---No, I don’t recall.

Can I just ask you – just step back for a second now, I’m putting a precise documents and I fully understand what you’ve said about it. If it turns out independently that that’s the fact that there were those shortcomings, and they did need to be addressed, what you’re saying is you weren’t aware of them at that stage; is that correct?---Well, generally, that’s what I’m saying. I mean, if I could just provide a little bit more of an answer.

Well, I want you to provide more of an answer. I will just focus it a little bit, yes, you will have your chance. Can you just tell the Commissioners: how can that be that you, as Chief Minister, were not aware of what appears to be a major shortfall in an important portfolio within your government?---Well, you have Ministers responsible for individual portfolios who look after those portfolios and then, of course, you have a CEO, or Commissioner in Corrections case, and all the staff who have a responsibility in that area. I mean, not everything makes its way up to you. Generally, the things that would make its way up to me would be if there was a – something that was quite topical, an area of importance, that the Corrections Minister or any other Minister may choose to send me a brief on, just for my information, but without that I wouldn’t be aware of what happened, particularly if it was an operational matter, or whether something came to Cabinet or budget Cabinet.

Apart from the formal deliberations of Cabinet did you have consistent contact with Mr Elferink in your time in government?---He was a Minister. We did talk.

Yes. But - - -

COMMISSIONER WHITE: That’s not quite the question.

MR MORRISSEY: - - - the question was did you have consistent contact with him?---We probably spoke most days.

Yes. Did you have a sense - - -?---Maybe not. Maybe every second day. I can’t recall.

That’s alright. But there was no barrier to him raising with you areas of concern within his portfolios?---No. There was a – there was a process, administratively within Parliament House, where if a – if a Minister had received a brief that they thought was important enough to send to another colleague or the Chief Minister the


5

10

15

20

25

30

35

40

45

process, on recollection, was that we would just write CC to Minister X or to Chief Minister and we would get a bit of a brief on that. But, without that process, you wouldn’t know of any topical matters that came up on a particular brief.

Alright. No, you’ve indicated with respect to the document I’m showing you, you don’t have a recollection of seeing it, and you probably didn’t actually see it. But one of the things we know about it, I’m going to ask you the topic, so that this document is just a platform, really. One of the issues that arose was that the – a proposal that was being floated in that context was the proposal to move all sentenced youth detainees from Alice Springs to Darwin, where it was proposed to establish a youth justice and training centre at the old Berrimah Jail complex. Now, first of all were you aware of the proposal to establish the youth justice and training centre at the old Berrimah jail complex?---I can’t recall if I was ever aware of that. I don’t – I don’t think I was.

Yes. Okay. Were you aware of the problems – perhaps I will take a step back from that. Yes. Were you aware – I just want to push the issue a little bit further of what was proposed at the old Berrimah Jail complex by way of the new centre. Were you aware that the new training centre was to feature the colocation of government and non-government services at that complex with a view to delivering training and programs and services for the purposes of addressing multiple complex needs which most of the detainees had?---Not – not that I can recall.

Alright. Now, I won’t take you to the pages there. For the purpose of the Commissioners, it’s there at page 7414, and it’s referred to as you can see. But were you aware of that as a desired outcome? That’s what they were trying to do at the old Berrimah, was to set up not merely a Youth Detention Centre but a centre where training programs and services could be provided to address the multiple complex needs of the detainees?---Well, I wasn’t aware of that in particular, but I would presume that that’s what they were doing. What I was aware of with the old Don Dale, and I remember John Elferink explaining to me in detail, is that he thought that there were two particular issues, one being – and I remember having a look at it, one being the wood panelling, he said it was a fire risk, and the other being the lack of – I think it was the lack of toilets in the cells, which posed a humanitarian issue from his point, a hygiene issue, and also a staff welfare issue. And they were two of the big issues that I recall him wanting to change centres.

Alright. Could we go, please, to 7393. Alright. Now, do you see here’s a comment – just a moment. Okay. I don’t want to trespass into what was, in fact, said in any Cabinet discussions, but do you agree that the Department of the Chief Minister made comment upon the drafts that were circulating?---Look, I – I just can’t comment. I don’t have the Cabinet document here in front of me.

Yes?---And I don’t have what we refer to, in front of us now, as the blues. I don’t want all the blues in front. I don’t know if they’ve been signed; I don’t know if they made Cabinet. Without having a bit of evidence to say that it actually went into


5

10

15

20

25

30

35

40

45

Cabinet, I can’t say. But that – the commentary on the document there, if it had gone into Cabinet, I don’t recall it.

COMMISSIONER WHITE: That comment would have been prepared, for your consideration by your officers, in your – under your bailiwick. That’s the practice, isn’t it?---Yeah. So what would happen – what would happen, a Cabinet document would be deemed to have an impact on a range of portfolios. We had 34 portfolios. Not all Cabinet documents would go to every agency for comment. DCM, I think, provided a comment on just about everything as just a reference to me, and I think the Treasurer also got a comment provided by Department of Treasury on every blue. But the blue would come forward so that a Minister or a chief would read the Cabinet document, particularly read what his department is saying, that’s where you take a bit of advice from. I would also get briefings occasionally, on certain things, and then we would take that as a bit of knowledge in forming decisions in Cabinet.

And the - - -

MR MORRISSEY: Excuse me one moment. Sorry.

COMMISSIONER WHITE: Yes. And the comment that we can read there, in response to my question, that would be prepared as a possible outcome. You might sign it or you might not; is that fair?---Well, this would be signed by the head of the Department of Chief Minister and then – I mean, I’m working in hypotheticals, I don’t know whether this went to Cabinet or not.

I’m really talking about the process, so the process is quite familiar to you, of course, how these things played out?---Well, the process would be I would – you would take that on board before you made a decision.

And it would be your officers who would prepare that for your perusal?---No. They would be departmental staff. Not officers in Parliament House, officers - - -

No, of course not, in your Department?---In the Department, yeah.

Of the Chief Minister?---Yep.

MS GRAHAM: Commissioners, I’m loathe to interrupt, but perhaps the screen could be expanded. That might assist the witness if the whole page of the document could be put on the screen.


MR MORRISSEY: Just excuse me. I just want to make sure we’re not misleading the witness here. Alright. Could we just go to page 7407. So you have here a document headed Recommendation and this is the document I took you to earlier on. Can you confirm that this document ultimately did go to Cabinet, but was subsequently withdrawn?---No, I can’t.


5

10

15

20

25

30

35

40

45

Alright. If the records other than your memory demonstrate that that happened, would you say that that’s possible that it did, or you can’t comment one way or the other?---If the records show that went to Cabinet, it went to Cabinet, but what I’ve got in front of me isn’t – doesn’t show that.

Is inconclusive on that question; I understand .....?---I mean, I don’t – I don’t doubt that there were a range of proposals that went forward from time to time. There were a range that never came – never made the light of day.

No, I understand that. Commissioners, I think just – we will want to be certain by a documentary trail. The witness has made it clear that he’s not ruling it out that it did, and it will be a question of the record, and therefore I propose to leave that for subsequent consideration.

COMMISSIONER WHITE: Alright. Thank you.

MR MORRISSEY: Thanks for that, Mr Giles. Can we go now please to – we’ve heard from Salli Cohen’s – from witness Salli Cohen, and her statement of 21 February is exhibit 211.011. That doesn’t need to come up on the screen. I’m just identifying it here.

COMMISSIONER WHITE: You might need to refresh Mr Giles’s memory as to who Ms Cohen is, Mr Morrissey.

MR MORRISSEY: Okay?---I – I – I - - -

Executive Director of .....?---I recall Ms Cohen.

Yes.


MR MORRISSEY: Alright. Thank you. So we’ve heard evidence from Ms Cohen that the Cabinet under which – never mind what the deliberations were, but the funding plea that was made by the Department as advanced partly by her was rejected; that instead there was a reallocation of funds from within the Department, some $796,000, to cover a refurbishment of old adult prison which was to be closed and an additional allocation to cover a shortfall of and existing staffing and costs. I can take you to that if you need to. Do you recall that or not?---I don’t recall.

Do you recall that a training - - -?---I recall there was money approved. I don’t know what money was approved, and the deliberations - - -

Yes. But do you recall that an amount was sought by Corrections in the youth justice space for training, which was rejected?---No, I don’t.


5

10

15

20

25

30

35

40

45

Just on the question of finances could we please have supplementary tender bundle of 18 April, tab 18, on the screen. So here we have a letter of charter circulated – it’s an email attaching a list of items. And just identify that and note the date and it notes here:

This memo is to ensure that the Chief Minister’s specific priority areas are noted and reported upon.

Do you see that?---Yes.

Now if we could go, please, to the next document behind tab 19, and this is a list of items for correctional services. Now, do you see that’s Correctional Services Key Agency outcomes, I’m not expecting you to remember this straight away. Just have a look down and see, do you see towards the bottom of the page that a number of priorities were established, but one of which was to reduce costs of Corrections by at least 20 per cent; you see that?---Yes, I see that.

Now, just on that, can I just ask you about the 20 per cent, was that a 20 per cent that was if you like customised given knowledge that you had of the Corrections area, or your Department had of the Corrections area, or was it just a 20 per cent target that was set across the board for across all areas of Government?---I mean, is this document the charter letter or is this document the budget papers?

No, it’s an attachment to the charter letter?---Okay. Look, I can’t recall the document at all. I note that the above one said we wanted to reduce recidivism by 20 per cent as well.

Yes. Well, could I ask you to perhaps take a step back. Do you recall imposing a 20 per cent efficiency dividend upon all departments or upon Corrections?---We didn’t have a 20 per cent efficiency dividend. We never had a 20 per cent efficiency dividend. To my recollection I think there was a one per cent efficiency dividend, which went across all agencies, and for the context – and we had some pretty significant budgetary problems when we came to Government, and we were working out how we could manage many of those. I note that Corrections was one of the agencies where the budget significantly increased during our term in Government and didn’t decrease by anything actually. I think it increased by 80 per cent, so it was – even though there was a target or a point put down to try and get better efficiency and use of the funding provided, we certainly increased the level of funding to the agency.

Alright. Could we have supplementary tender bundle – sorry, could we tender each of those documents, tabs 18 and 19, please.

COMMISSIONER WHITE: Yes. Exhibit – for the first one, exhibit 311.018, and exhibit 311.019.


5

10

15

20

25

30

35

40

45

THE WITNESS: Can I just ask, do you have the actual document, the charter letter itself, that I signed?

MR MORRISSEY: It’s an attachment to the - - -

COMMISSIONER WHITE: Is it attached to a document tab 18?

MR MORRISSEY: Yes. So your Honour, if you – Commissioners, if you look at supplementary tender bundle 18 that’s on the screen now, you will see it says attached to the excerpt from the Chief Minister’s letter of charter. So we don’t have the entire letter of charter. We’ve just got an excerpt from it?---Okay.

You see that?---I see it on the screen. I don’t actually recall signing a letter to John for that, but anyway, that’s alright. It’s not to say that I didn’t, but I don’t recall ever signing the letter.

MR MORRISSEY: No, no. I understand. That’s okay. That’s the document that we have at this point. Alright. So can we please have on the screen supplementary tender bundle of 18 April, tab 31?---It’s probably important to note on there as well that I haven’t been copied into any of that correspondence.

No?---So I don’t actually recall seeing that document.

Okay. Well, that’s noted. It’s – when you say you don’t recall seeing it, are you saying it’s not genuine, or it didn’t exist?---Well, I remember - - -

- - - or just you don’t know?---Well, I remember wanting to give charter letters to everybody, and one of the things that Chief Minister or Premier or so forth does is give a letter of direction for a Minister about how to move forward with things, and I just can’t recall actually doing that with John on Corrections. That’s why I asked if the letter was there because I wasn’t CC’d on email and I haven’t seen my name anywhere in it.

COMMISSIONER WHITE: But that – I think your evidence is that that was a practice that you had of issuing such a document?---Well, we wanted to do it. I can’t remember if we ever actually did it, to be frank – to be honest.

Looks as though you came pretty close here?---Well, we wanted – there was a couple of times we warranted to issue charter letters, and I can’t recall us ever doing it. That’s all. I just wanted to see if the letter was there to see if we actually did it. So I don’t know if that’s a document that was prepared in draft by staff and sent out or whether it’s a document I actually sent. So - - -

And would – if we can use this one as an example, would that have been sent to the relevant Department for comment?---No. I’m surprised it’s gone to the Department. To me it would have been – if it was done, it would have been undertaken between Chief Minister and Minister.


5

10

15

20

25

30

35

40

45

COMMISSIONER GOODA: But that’s what the document says, Mr Giles. It’s from the chief of – senior Minister or adviser to Mr Elferink to Ken Middlebrook?---Yeah, which surprises me.

No. But it says, “attached is an excerpt from the Chief Minister’s letter of charter to the Minister”?---Yeah.

Which relates to your area of responsibility?---Yeah.

That’s all that says. So going from that, you can almost assume there would have been a letter of – a charter – letter of charter to the Minister?---Yeah. I was just making the point I don’t recall ever sending a letter.

..... imagine a chief – a senior adviser making it up?---Well, you could imagine.

..... Commissioner?---You could imagine, Commissioner, my chief of staff sending a draft over to another Minister’s chief of staff. And all I was making the point was I don’t recall it. I don’t recall signing the letter.

No, I’m just making a point. That’s all that email says?---Yeah, and I - - -

It would – it’s from the chief – or ministerial adviser to the Commissioner of Corrections, it’s not – you wouldn’t normally be copied into that?---I know, but if I had signed the letter to any Minister saying, “This is what I expect you to do in your portfolio,” that’s why I was asking if that letter was there, yeah.

MR MORRISSEY: But leaving aside the patterns of correspondence, do you recall requiring the Minister for Corrections to reduce costs of Corrections by at least 20 per cent?---Never, not at all.

And do you say that you did not do that?---I don’t recall it.

No, but that question - - -?---And, in my vocabulary, I never remember reducing it by 20 per cent and, in fact, the thing that I am aware of is that we kept putting more money into the Corrections budget, and I think we went from about 130 million when we came too government to about 250 million when we left.

But I think the crunch really is this: that we’ve got a document to reduce costs of Corrections by at least 20 per cent at that time, and is your evidence you didn’t impose that requirement of reducing costs by 20 per cent?---My evidence is I don’t recall ever seeing that list.

No, no, no, don’t worry about seeing the document. Just come to the 20 per cent reduction, did you require a 20 per cent reduction at that time or not?---No.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Could I just, on a practical point, Mr Morrissey, both documents 18 and 19 have already been tendered, I’m reminded, so they don’t have to be tendered again.

MR MORRISSEY: Thank you. Yes. Alright. Could we please have supplementary tender bundle of 18 April tab 31 on the page. What we have here is an apparent request by you – it will come up – to arrange a briefing on youth justice matters across the Territory. The page is 7947. Okay. Do you see that request for you at the bottom of the page there:

Please arrange a briefing for me on youth justice matters from across the Territory.

?---Yep.

Dated 10 April 2014. Why did you request that briefing?---I can’t recall, I’m sorry.

Do you recall what the issue were that gave rise to the request for the briefing?---I have no recollection at all in that regard.

Can I ask you whether part of it was that there was – well, was the topic of staff training and staff morale a live one in your mind at that time when you sought the briefing?---I – I cannot recall.

Alright. Could we – I tender that.

COMMISSIONER WHITE: Exhibit 311.031

EXHIBIT #311.031 REQUEST TO ARRANGE BRIEFING ON YOUTH JUSTICE MATTERS ACROSS THE TERRITORY

MR MORRISSEY: Did you go to the Don Dale Centre with Minister Elferink in June of 2014?---I can’t recall any timeframe. I know I certainly went there once with him.

Yes. Alright. Now, on that occasion, we have heard some evidence that there was a tour of the Don Dale Centre. Did you go to the Behavioural Management Unit; the BMU?---I can’t recall.

Can you recall - - -?---I remember that John wanted to show me the wood panelling and the amenity within some of the cells.

Is that the thing that stands out in your mind from that – from that trip ..... ---That’s the only thing – that’s the number 1 thing, because John was of an opinion, in conversation with me, that he didn’t think it was a safe environment – safe enough


5

10

15

20

25

30

35

40

45

environment, particularly with the wood panelling, because he thought there was a problem with potential fire and danger, so he wanted me to have a look at it so I understood it.

Well, do you remember going to the Behavioural Management Unit?---I don’t remember.

You remember going to a unit that had – had a series of unlit dark cells?---I don’t recall.

Do you remember going to a unit that stank of urine - - -?---I don’t recall.

- - - with silent children with the lights off inside those cells?---I don’t recall.

It might have happened, but you just don’t remember?---Well, I can’t recall it ever happening.

Okay. Did you go to a high security unit on that occasion?---I don’t recall. I was escorted around by some of the staff. I don’t have a recollection about what I saw, where I saw it, and any other details.

Do you recall any emotional response that you had to seeing any particular children or any particular situation?---I don’t recall, I’m sorry.

Do you recall speaking to any children?---I don’t think I spoke to any children.

Do you recall going to the maximum security section in the remand accommodation areas?---No, I don’t recall.

We’ve got an itinerary of plans for that. I don’t know, would you have seen the itinerary or just been told, “This is what we’re doing”?---No. I would have just been escorted through.

Alright. So anyway you have got a memory of going there, and what you recall about it is Mr Elferink raising the wood in the ceiling issue?---Well – and the toilets and the lack of amenity for the inmates.

And what was the – and what – did he speak of the cost of fixing those toilets?---I can’t recall.

Or providing toilets?---Can’t recall.

Alright. Very well. Thanks for that. Did you know – I tender that. Sorry. I have already. No, it’s already tendered. I’m sorry. That’s fine.

COMMISSIONER WHITE: Yes, it is.


5

10

15

20

25

30

35

40

45

MR MORRISSEY: Yes. Alright. Sorry, I looked at the wrong one.

So do you remember an individual named Mr Caldwell?---No, I don’t.

Superintendent at Don Dale. Did you meet him on that occasion?---To be honest, I’ve met thousands and thousands of people. I would have no recollection. That’s no disrespect to Mr Caldwell. I just don’t recall.

Okay. So there’s a draft briefing to you from Mr Elferink. I’m going to show it to you and see if you remember whether it actually came through or not. So tab 33, can we go to supplementary tender bundle of 18 April, tab 33 and page 2 of that document is 3562. This, we know, is a draft briefing to you from Mr Elferink. We’re not clear whether it was reached to you or not. We will ask you the question. But here it’s identified – the following is identified at the second paragraph there, several serious incidents, and it highlights:

Several serious incidents have occurred over the past three years which have highlighted the vulnerability of the infrastructure, the perilous position this places on detainees and staff alike.

And then he goes on to detail some particular incidents. And then, if we go over to the following page at page 3 at the top, there’s a heading Current Situation. Do you see there it sets out some correctional services options for infrastructure solutions. Now, first of all, do you recall whether or not this briefing or a briefing in these terms actually came to you?---I have no recollection about whether it came or whether it didn’t come.

Yes. That may be a matter of other documents. Do you say – do you – sometimes you can look at a document and say, “That’s not something that would come to me.” Can you look at that and say, “I didn’t,” or “I did,” or I .....?---Well, I don’t like providing hypotheticals on particular documents, but if a document was going to come to me as a briefing it might take that format.

It might. Okay. Well, that’s really what I was getting at. Thank you. Well - - -?---I also think we need to be mindful that these sort of financial decisions are made by budget Cabinet, not just a Chief Minister signing a cheque book and handing money out.

No, the point is well made. I tender those documents.

COMMISSIONER WHITE: Just not quite sure what value, vis-à-vis Mr Giles, use is going to be made of that document, if anything.

MR MORRISSEY: It wouldn’t be used in relation to Mr Giles’ evidence at all. It’s a document that arising - - -

COMMISSIONER WHITE: Just want it put in. Yes. Thank you. Exhibit 311.033.


5

10

15

20

25

30

35

40

45

EXHIBIT #311.033 DRAFT BRIEFING

MR MORRISSEY: So each of those documents is offered for tender.

When did you become aware of the tear gassing incident?---Look, I’m not 100 per cent sure on this answer. I think we had a briefing, a verbal briefing in Cabinet, the day after or the morning after, I think, but I could be wrong. I don’t want to say I don’t recall, because I’m pretty sure that either Minister Elferink or the Corrections Commissioner came in – might have come into Cabinet and told us what occurred, I think.

Well, don’t tell us what was discussed in Cabinet?---No, I’m not going to, but I think we had a briefing.

Thank you. Can we go to supplementary tender bundle of 18 April, tab 44. What this does, it’s background material, but it indicates that a de-identified flash brief was proposed to be sent to you. You’re familiar with the flash brief process. Do you recall receiving a flash brief?---No, I don’t recall. It’s not to say I didn’t, but I don’t recall. And I’ve got to say I never received a lot of flash briefs off Corrections.

Perhaps we could just show you – I think rather than going through a process, I will just show you a document, if I could?---Yeah.

And we will go through – if you can identify it then we will take it further and show it to you. We think this is the flash brief that was likely to go to you but you can say if you remember receiving it?---Just looking at the document, I would say I never received it because it doesn’t have anything on there saying send to Adam or send to the chief. And normally - - -

That’s okay. What was supposed to come to you – this takes a while to go through, but it looks as though there was a plan to send you a de-identified version of that document. Have a look at that. We haven’t got whatever went to you, if anything did. That’s the sort of thing that would have gone. Can you have a look at it and see did you get it or - - -?---Not to my recollection.

Alright. Thanks. Well, that could be returned to me. What were you told about the tear gassing incident?---Look, I have to reflect in my memory. I think that someone gave us a verbal briefing. I think we had a Cabinet meeting that morning and we just had a briefing about exactly what occurred, what actions were going to take place, and how there would be a process going forward. But I can’t remember the exact specifics about the conversation, the actions that were going to take place, or otherwise.

Alright. Now, do you recall that in 2015 two reports came to Government, one the Gwynne report and another – and I’m just using their nicknames – the Vita Report?---I don’t recall them coming to Government. As I said at the outset, most of


5

10

15

20

25

30

35

40

45

my knowledge about those two reports came after I had called and set up the Royal Commission after the Four Corners report and I took the portfolio and I got more of an information about it.

Alright. So once you got more information about it, when you assumed the portfolio after the Four Corners report, what reports did you become aware of then?---The Hamburger Report, and I can’t remember the co-author of the Hamburger Report, and I immediately had a meeting with Mr Keith Hamburger.

Okay. Don’t – sorry, don’t into the report now. I’m just getting you to identity them. Perhaps I could help you. Were you aware of a report into staffing from 2009 from Mr Gary Manison?---Not to my recollection.

Were you aware of the Carney Report?---I was aware when the Carney Report was undertaken; we were in opposition then.

Yes, but were you aware of the Carney Report itself and its findings - - -?---No.

The nine principles .....?---No, I think there was five principles or something.

Nine?---I can’t remember how many or what they were.

Alright. Were you aware of the report of the Professional Standards Unit to Mr Middlebrook of Mr Ferguson of September 2014?---No, no recollection.

Did anyone acquaint you with the fact that in September of 2014 there was a report from the head of Professional Standards to Mr Middlebrook in effect indicating that there had been very bad failings by the staff over a prolonged period of time leading up to the tear gassing?---Not to any recollection.

That staff malpractice, both specific and long term, was identified. Was that brought to your attention?---Any – not to any – no, I don’t think it was ever brought to my attention. Not saying it wasn’t, but I cannot recall anything in that regard.

Significant problems in training, with staff modelling, and with staff morale had been identified. Major problems - - -?---That would be – that would be something that would always stay with the – either the relevant Minister or the head of the agency. I don’t recall any of that ever coming forward.

But just on that, that was an incident that was troubling and embarrassing, do you agree with that?---I can’t remember the incident.

The tear gassing incident?---The tear gassing incident?

Yes?---Not embarrassing. It’s troubling for those kids.


5

10

15

20

25

30

35

40

45

Well, it was a matter that you knew that the Government, led by you, you would have to answer for both in Parliament and in the press?---Yeah. But I didn’t take it as troubling, not for me personally.

No. But in order to answer inquiries in Parliament and in the press, didn’t you have to inquire of Mr Middlebrook what happened?---Yeah, but - - -

Sorry, of Mr Elferink and - - -?---Yeah. Questions were raised with John at the time, but John still assumed the responsibility of the portfolio and had carriage of identifying exactly what happened and put in place the reforms to try and fix those situations.

Sure?---As any responsible Minister does.

I understand that, but you say responsible Minister has that responsibility, but you as leader of the Government and as – pursuant to collective ministerial responsibility – knew that you might have to answer questions about what happened and what you were doing – what your Government was doing to fix it; correct?---Yeah. That’s correct.

So was it identified to you that there were major problems in the way the staff were trained?---No, not to my recollection, that wasn’t.

Weren’t you told that an internal inquiry by Corrections – sorry, I won’t quote the Ferguson Report to you?---Did the Ferguson Report come to me?

No, no. It’s an internal report to Mr Middlebrook. I’m asking whether, though – whether the issues were identified to you that the children had been treated like animals?---No.

Had fruit thrown at them by staff members?---Never was that brought to my attention.

Can you explain – it has been made clear to the tribunal here that that, in fact, happened and that there were the staffing problems, and there were the abuses by individual staff. Can you explain: how can it be that you didn’t know as Chief Minister when that was an acute public crisis and you had a Minister under you that you knew was responsible for the area?---Well, if the information doesn’t flow up to the Chief Minister, the Chief Minister doesn’t know. I mean, you’ve got a Minister responsible and a Commissioner responsible who is seen to be an expert in that area of responsibility, who has the functionality of administering everything within Corrections, and if there are things happening within the purview of the agency or of the detention systems, they have the responsibility to operationally manage those things and provide advice to us at a time that they see fit. And if the information didn’t flow up, I can’t answer why we didn’t receive any information in that regard. That’s to say that we didn’t receive it.


5

10

15

20

25

30

35

40

45

Yes. Well – so just on that topic, I’ve asked you how that can be. Wasn’t it your responsibility to ensure that the lines of communication which allow responsible government to work were open?---Well, I think they were open. You don’t – you don’t get a brief on every single issue, across every single agency, every single day. There are a range of things which occur in agencies which stay in agencies. I think I used to go through 30 files a day, which is a pretty hectic workload, and 20 briefings a day. And they were the portfolio responsibilities which I held accountability for. And if – if a Minister thought it was important enough to send something – not important enough is probably the wrong word, but if a Minister thought I needed to be aware of something, or a head of an agency thought I needed to be aware, they would send it on. And if they didn’t, well, they didn’t. But that was the process and I thought the process always worked quite right from an administrative perspective in the reporting lines.

So what your – the thrust of your evidence is whatever was known by Mr Middlebrook, the Corrections – the Commissioner and the Minister to whom he answered, Mr Elferink. That simply didn’t come to you until after you had seen the Vita Report and subsequently assumed responsibility for the portfolio?---Well, a lot of that – a lot of that’s correct, yeah, to my recollection.

Alright. Could we just place before the witness a transcript. This has not been uploaded; it’s been circulated. The witness has been given an opportunity to inspect it. Were you provided, shortly before giving evidence today, with a transcript of an interview with a journalist named Katie Woolf on 27 July?---I was given it just as I was about to come in. I’ve read half of it.

I provided two copies to the Commissioners to look at. I’m just going to take you to this transcript. Commissioners, this is a transcript that’s been prepared by Commission staff and, as would be the case in a court of law, the actual evidence is the recording. The transcript is merely an aid to that. It seems tolerably clear – anyway, I’m confident to put these questions to you. Now, anyway, I know it was given to you at the start. But you’ve had a chance to read it this morning; correct?---I got through half of it.

COMMISSIONER WHITE: Pretty dense, Mr Morrissey.

MR MORRISSEY: Sorry?

COMMISSIONER WHITE: I mean, it’s not surprising that Mr Giles hasn’t finished reading it. It’s a fairly long document.

THE WITNESS: I think this was an interview done after I had set up the Royal Commission, wasn’t it?

MR MORRISSEY: It is. Well, perhaps if I could proceed to ask some questions about it, but if you feel as if you need time to consider it?---I’m happy to take questions.


5

10

15

20

25

30

35

40

45

Could we just go first - - -?---I don’t remember the interview specifically. I’ve just read .....

That’s okay. That’s alright. The transcript is here. So you were being pressed with questions about the – there is an interview which arose in the days following the Four Corners program?---Yeah.

And in the days following you assuming responsibility for the – so I’m just going to ask you to clarify some of the things you said. Look at your – starting with the first main answer and you gave this answer. You said:

Since watching the show and then seeing some of the footage again in regards to the gas incident in particular, I think that most certainly Government was misled about the events that occurred at the gassing incident.

Now, I just want to pause there. What did you mean by the “Government was misled” and in what respects were they misled?---Well, I think it needs to be put in the context of I hadn’t seen any of that footage that was on the Four Corners report, and when I saw that footage, obviously, I had been made aware of a gassing incident in 2014 or ’15, whenever it was, so I knew – I’d known of the incident, but I hadn’t seen that footage and seeing that footage, I thought that that footage was of very recent events. I didn’t – I wasn’t of the understanding that that occurred before we even got into government, 80 per cent of it, I wasn’t of the understanding that had that gone to court and that many of those matters had been dealt with, if not all of them. I wasn’t aware that there had been a range of changes to the system to respond to a lot of those things, so in my point of view as a father and Aboriginal man, I saw some of those kids getting treated in a very poor way, and that was traumatising for me, and quite upsetting. So when I’ve said – and I’ve also used a terminology in other media somewhere called “culture of cover up”.

Yes?---I wanted to know why I didn’t know about these events, why I hadn’t seen the footage, and what on earth was going on. and the majority of that basis is because I thought that was very recent events.

Yes. So do you maintain the position that Government was misled? Is that what you’re saying there? Was that an error at the time, or is it something that you - - -?---Well, I think certainly there I got that wrong. That Four Corners footage, I thought that was in the last six months from when it was aired. I didn’t realise that was six years ago, before we were even in Government. I - - -

Alright?---And I’ve said before, I will say it again, that was the first time I had seen the footage, I wasn’t aware. But as I said, as a dad and an Aboriginal man, watching those Aboriginal kids getting thrown down like that – I had a lump in my throat, chills up my spine, I was just appalled. And that’s why I called for the Royal Commission within 10 hours or something of it going ahead.


5

10

15

20

25

30

35

40

45

I think you’ve explained why it was. The reason you – in light of that, you would say the reason why you thought you had been misled is because you had been given no information about things that now you were shocked - - -?---Well, on reflection, I wouldn’t expect to be briefed about something that happened in 2010 with kids being – I mean, I can’t even remember the exact footage, but thrown on the ground, hurled up against the wall by their throat. I mean, to me, that’s no way to treat a child. I was appalled.

Right?---Like – and – and I know there’s been much commentary about the ABC story and misleading and so forth, I’m not here to talk about that, but I can tell you from my perspective I thought that footage was within six months old, I thought that had been happening under my watch, and that’s why I called the Royal Commission straightaway. And I think this process is a great process because we can get to a point where we put in better procedures to be able to help the kids.

Alright. Now, a little bit further down, you said this:

Some of the stuff I saw on the Four Corners, other media outlets, I hadn’t seen before. Things such as hitting children, throwing them on the ground violently, hands around their necks, sitting on top of them. I hadn’t seen any of that stuff and that’s the stuff that really irked me.

And the question I’ve got about that is: had you at that point, that’s during the time of the interview, had you actually seen any videos prior to that time of – had you seen any of those videos?---Any of that footage before?

Yes?---I hadn’t seen any of that footage before. When – before the - - -

Okay. Well, that’s – sorry, that’s that – you hadn’t seen it before the Four Corners program?---Yeah. We tried to identify – just before the Four Corners program went to air, I remember, there was a bit of conjecture in Parliament House, on the fifth floor of Parliament House where there was a conversation about, “Why on earth did you let Four Corners in?” There was a bit of that conversation going on and then there was a case of, “Well, what are they going to show, what footage have they got?” And I remember being in Minister Elferink’s office trying to identify exactly what footage there was. Because we were all expecting some something had occurred in the last couple of months.

Alright. So just to be clear – let me tease that out a bit. You mean you did see some footage before the Four Corners show was aired?---I didn’t see any of this footage that was on Four Corners before the show, no.

What footage did you see before the Four Corners?---We were in one of Minister Elferink’s offices with staff trying to identify some of the footage and what had occurred. They were just having a look at some old CCTV footage, and I can’t recall exactly what that footage was, trying to identify what had occurred in the last few months.


5

10

15

20

25

30

35

40

45

Alright. Now, approximately how long before - - -

COMMISSIONER WHITE: Can I just clarify this. I’m not quite sure. So at this meeting, just before it’s aired, and you’re talking about this topic of the Four Corners - - -?---Yeah.

- - - team being there. Did Mr Elferink have some footage from the Don Dale detention - - -?---No.

- - - centre that he showed you then, some old footage?---No, we were - - -

What was the circumstances of looking at footage with Mr Elferink; can you recall?---I think it was on the day that the Four Corners show went to air, and the communication got around the office that the Four Corners show was going to be a hatchet job, and they were going to do a number on Elf and I said, “Well, what footage have they got? What are we talking about? What occurred in the system?” And some of John’s advisors were trying to get copies of CCTV footage to identify exactly what was going to be on the TV show that night and they couldn’t find it.

So you didn’t watch any?---They had some stills on the screens, but it was none of the – none of this stuff that was on the show.

MR MORRISSEY: No, but - - -?---They had some stills on the screen. I can’t remember know what the stills on the screen were.

I want to press that a little bit further if I could. So just to be clear, what you’re saying now before the show was aired, but – are you saying it’s on the same day?---Yeah, I think it was on – probably a couple of hours before the show went to air.

Alright. And on that occasion you looked at some footage. Was it – were there any moving images or just simply stills?---I can’t remember. I was more in the room while the staff member was particularly trying to find some footage.

Well, you can remember being there, and you can remember the topic. I just ask you to extend your memory please. Did you see any moving footage or not?---I can’t remember. They may have been stills, they may have been moving footage, but they weren’t these – I don’t recall them being these images on the show, because I remember watching that show and being horrified.

What was the nature of the images that you did see?---Black and white grainy images of a prison cell.

Yes. Well, of - - -?---I can’t – I can’t – I’m being straight up with you: I can’t recall the images. I was asking them, “What are Four Corners going to show?” And they were trying to find out what it was and trying to tell me.


5

10

15

20

25

30

35

40

45

I think you’ve made that clear. But just – I need to press you a little bit further about this. Were children depicted in the pictures that were shown?---I can’t recall. I presume so, but I can’t recall.

Do you recall having an emotional reaction to what you saw?---I can’t recall what was on the screen of the computer to be able to give an answer to that question.

Do you recall how – what was the provenance of those images, where – how were they procured, where were they got from. You mentioned CCTV before?---They were gotten from the agency.

Yes. Well, was it provided - - -?---From the Corrections Department.

Was it provided in response to a request by you saying, “What’s – what are they going to do to Elferink”?---Could have been. I mean, I was saying, “What’s going on, what’s this footage they we’re talking about?” So it could have been asking on my behalf or anyone else’s behalf; I don’t know.

Well, what you’re saying is it’s possible that you made the request that this material be produced. How quickly was it produced?---I don’t have an answer for that.

Alright?---The day of the show I was told this is going to be a bad hatchet job, and I said, “Well, what’s – what are we talking about?”

Who told you that?---I think – I think a few people, a few staff. I think John told me that as well.

Alright. What did Mr Elferink tell you?---Sorry?

What did Mr Elferink tell you?---I can’t remember his exact words what he told me, but words - - -

What was the effect?---He said words to the effect of, “I think that Four Corners have done me over.”

Alright. And did he tell you, “Look, we do have – there is some footage in existence that they might show”?---No.

Well, how did it come about that you requested footage?---Well, as I explained, I was saying, “Well, what is it they’re going to show?” When people are saying to me it’s going to be a bad show. I think they must have been running promos on channel 2. I wasn’t watching them, promoting on channel 2 that it was – that they had a Four Corners show, everyone was saying, “This is going to be bad.” And I was said, “Well, what are we talking about?”

Alright?---It was as simple as that.


5

10

15

20

25

30

35

40

45

Before that occasion had you seen any moving footage or any stills arising from alleged incidents involving violence between staff .....?---Before asking John’s office what have they got for Four Corners, no.

What about back in 2014 and ’15, had you seen any still images of children being manhandled in that period of time?---Not that I can recall.

Can I just ask that the witness be shown a document. What’s coming now is some images that are taken from CCTV. These images derive from a report that is currently confidential, likely to be tendered at a later stage, but there’s nothing controversial about the images and they replicate other things. Would you mind just having a look through those?---Did you say nothing controversial about the images?

About the provenance of the images, Mr Giles. Just have a look at them, if you would?---Yeah.

Okay. Have you looked through those images?---Yeah.

Okay. And do you notice those are still images which clearly come from the moving images that are on the Four Corners report; you see them?---I can see them, yeah.

Did you see those annexed to any report in 2014 or ’15?--- No.

Had you ever seen images of that type or similar before that time?---Never.

Alright. They can be returned here, please. Alright. Can we press on through this document now. At the bottom of that page, you’ve said this:

The Colleen Gwynne report that came down –

Sorry, I just take you to a couple of things here. You told the interviewer that – and this is at the bottom of the first big answer:

I want to have a look at that too, and see whether or not we’re providing – without doing a review of the child protection system – but see whether or not we’re taking the right approach into the front end, stop them going into juvenile detention.

And the interviewer says:

Chief Minister, there’s been a number of people come out and say that they cannot understand how it’s the case that you’ve not seen some of those images.

And it then refers to some reports and then it says:

Did you receive those reports?


5

10

15

20

25

30

35

40

45

And you said this:

The Colleen Gwynne report that come through in 2014, that report came to Government, we went through that with ordinance when we took some of those recommendations about closing the old Don Dale Centre and moving to the new centre. It’s where we looked at how we improved staff training. We made sure we moved to a more rehabilitative state, so all of those things have been worked on and implemented. We’ve done another review called the Vita Review.

Now, there you’re saying you have the Gwynne Report and the Vita Report and that you have sought to – or you have implemented the Vita Report; you see that?---Yes.

Was it your understanding that you had, in fact, implemented all the recommendations of the Vita Report?---Well, without going through all of this transcript of the interview, this interview was conducted I think a couple of days after I set up the Royal Commission and took the Corrections portfolio. So at that point I had the liberty of being able to briefed by the agency on a range of different issues, so this is from the time after the Four Corners report, and I think at the time of the Vita Review 16 recommendations and I’m going – reflecting on memory, it’s a bit hazy, but I think we done all of the 16 or maybe 15 of the recommendations, implemented them.

Okay?---I think you can correct me if I’m wrong.

As to the Gwynne Report referred to there was that a generalised report or a report into a single child?---I can’t recall.

With respect to the Bath Report?---I don’t think I ever saw a report into a single child ..... know if I was aware of one.

That’s okay. With respect to the draft reports of – sorry, the reports of Dr Bath, did you ever see a draft of a report by Dr Bath, did he bring you reports in draft or did you see reports in draft?---Not that I can recall; I can’t ever recall meeting Dr Bath myself.

Do you recall being shown a draft by Mr Elferink that contained any images?---No, not at all.

Were you told by Mr Elferink, “There are reports in existence with very worrying images”?---No, not at all.

Did he tell you that during the meeting immediately prior to the launch of the – of the Four Corners video?---No, not that I can recall.

Alright. I tender that transcript.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Exhibit 326. Thank you.

EXHIBIT #326 TRANSCRIPT OF INTERVIEW OF ADAM GILES

MR MORRISSEY: Very well.

COMMISSIONER WHITE: Do you have many more questions for Mr Giles? I’m just looking at the time.

MR MORRISSEY: No, I’m aware of that Commissioner. I’m just – I did have some questions about media management and then – I can do some trimming. We’re nearly at the time for a morning break, and it might be appropriate if we took that break, because I’ve got some trimming I would like to do here in light of some of the answers. So if we could do that now. I do not have many questions to go after.

COMMISSIONER WHITE: Thank you. We will take a 20 minute break, Mr Giles.

ADJOURNED [11.22 am]

RESUMED [11.49 am]

MR MORRISSEY: Commissioners, I’m going to finish up very shortly here. Could I just indicate that – I just wanted to make a comment about cross-examination of Mr Giles. Leave has been sought and granted on a number of topics, but it’s been apparent in the course of my cross-examination that there will be a number of documents which it was perhaps presumed he might have seen which he didn’t see. That might have an effect of shortening the cross-examination of some. I understand the situation to be this: that those cross-examining should ensure that there’s a link between their own client, where it’s an individual client, and what is being cross-examined upon. There has been – generally speaking, there has been good observance of that, but it’s also the case on some occasions that hasn’t occurred. So as Counsel Assisting I’m simply saying that should be borne in mind. That’s the basis on which the leave was sought and, as I understand it, granted.

Having said that, could I just turn to my two final areas of questioning. Would you mind going back, please, to that newspaper interview which you had before and could you go to page 4 of the transcript, and over the break did you have a chance to read that part of the – that part of the transcript where you were responding at the end of page 3, and into the first paragraph on page 4, you were responding to how seriously you viewed the incidents that you had seen on the videos during the Four Corners show; correct?---That’s correct.


5

10

15

20

25

30

35

40

45

I just wanted to take you to something that happened at the end of all that though, if I could. So, having explained why you reacted as you did, you went on to point out some of the areas where the previous Government might also be held accountable and then you said this:

Labor have got their hands all over this.

And you went on to say:

I’m the only person who’s got the balls and the guts to stand up and try and deal with it, and I will do that every day for the interest of Territorians and kids. And if I have to be tough about protecting Territorians on the street, at their homes, whether they’re in Muldoon, Karama, Larapinta, or anywhere, I will do that and that’s my job.

Now, I appreciate when you said the line:

I’m the only person who’s got the balls and the guts to stand up and try and deal with it –

plainly you were referring there to taking on, without shirking, the issues that had come to light now that you had taken over the Corrections portfolio by way of calling the Royal Commission and so on; is that right?---Well, it was – if I can just elaborate a little bit. I was under a lot of criticism for calling the Royal Commission in the first place, I got a lot of criticism on that, and I stood up and said words that are similar in this transcript, that I accept the responsibility for everything that occurred, whether they occurred before we were in Government or during our time of Government, whether I knew about them or was unaware of that.

Yes, you did that clearly?---That’s the context.

The issue I’m really going to though is the bit where you went on to say:

If I have to be tough about protecting Territorians on the street at their homes, whether they’re in Muldoon, Karama, Larapinta, or anywhere, I will do that and that’s my job.

?---Yeah.

Now, could I ask you this: what was the possible relevance of that general statement of toughness to the topics that went before?---It’s about having that tenacity to stand up and say that you will put in place the Royal Commission, you will wear all the criticism for having a Royal Commission. I think you even see criticisms today. I will wear that criticism and I will do that. When it says about being tough about protecting Territorians, it’s from a child protection point of view and a range of other areas.


5

10

15

20

25

30

35

40

45

No, no. But you’ve said the words there, “On the street, in their homes”. And then you’ve mentioned particular areas or electorates. Muldoon, Karama, Larapinta?---Yeah. Palmerston, Darwin, Alice Springs, yeah.

Well, can I just ask you: what was the reason to talk about protecting Territorians on the street at their homes and in those particular areas when, in fact, you’re dealing with youth justice?---Well, you’re also dealing with the youth who go into the justice system, you’re protecting them, looking at protecting everyone in the Northern Territory. It was a – I mean, like, I’m reading the transcript of the interview right now, but it was a – it looks to me like it was all encapsulating, I will stand up, and I will do the Royal Commission, and I will support it, and I will cop it on the chin on the way through.

Well, wasn’t that reference to being tough about protecting Territorians on the street, homes, Muldoon, Karama, and Larapinta, an invocation of your tough on crime message?---As I said earlier, I don’t have a tough on crime message, but I’m not going to stand by and let people continue to be assaulted or broken into. We need to get the balance right, and I’ve always taken the view that we need to invest more in early intervention before kids commit those crimes and that’s why – I know – I haven’t seen any – this isn’t a criticism – I haven’t seen any conversation about what I see as one of the most important points of the terms of reference for the Commission, which I fought to get in, and that is about child protection and how kids are finding their way into the – finding their way into the youth detention system. I think that’s an important component that’s often .....

I think you may be sure there will be some significant coverage of that. This is the detention component. Can I just finally take you to exhibit 324. Could that please be brought up on the screen. We will just zoom in on the top part of this, so the witness can see what it is. Can you just indicate who was Tim Baldwin?---He was my chief of staff.

And you can see here that Mr Baldwin is responding to an email by Mr Elferink. And the thing I ask about is the email of Elferink, which is set out down the page dated 21 March 2016. Do you see that?---I see it on the screen.

Now, this is a communication by Elferink, it would appear it’s a communication with your chief of staff, listing some ideas. Do you see that? And if you just run your eyes down that you will see a great many tough on crime sort of ideas. For example, just rest your eyes as I’ve called them on (1), life means life, (7) greater restraint powers in juvenile detention. (9), amend youth justice legislation to remove the notion of custody for a child as the last resort, make the protection of the community a primary concern. (4), mandatory sentencing for property offences. (29), announce review for mandatory sentencing for youth. (25), mandatory sentences for escaping lawful custody. There’s a number of issues. Now, first of all, do you remember seeing this particular email or any other document suggesting those ideas?---I don’t think I’ve ever seen this document.


5

10

15

20

25

30

35

40

45

Did you request Mr Elferink in a sense in a brainstorming way to come up with tough on crime ideas to help get re-elected in 2016?---Not to my recollection. I mean, everyone was always encouraged with come forward with new policy ideas about how you can improve things in the Northern Territory. I can’t think of anything specific.

Well, do you recall any – look at number (9), if you wouldn’t mind:

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

Did you seek to introduce any such legislation?---No, not that I can recall, but from what I can see from this document, it looks like – I mean, as it says, some ideas, it looks like an ideas generated just to get – have a discussion. I don’t - - -

It does have that appearance about it, I agree with you, but don’t you recall having a discussion like that, in that nature?---No. There were a few of these things that were probably discussed from time to time. Destroying cars of repeat drink drivers.

Yes?---I think we were looking at – we discussed confiscating cars, but we never did it, of high range, repeat drink drivers, and there was always a lot of pressure put on us, particularly by someone called the – someone referred as the member for Nelson in Territory Parliament, wanted to destroy hoon cars, number (17).

What about number (9) though? Did you – just looking at that one there, leaving aside whether you saw this email, did you support that suggestion?---I haven’t seen it before so - - -

Looking at it now?---Well, I would have to understand the context of what it’s about ......

Well, amending youth justice legislation to remove – did you appreciate that there was a notion of custody for a child is a last resort?---I don’t have a comment on that at this point of time. I would have to go and have a read of it and understand exactly what it was all about.

That’s okay. But just going back to the time when you were the Chief Minister though, was it your understanding that custody was the last resort in sentencing?---Always – always has been.

Yes. That’s right?---Always has been

So you see here the suggestion to amend youth justice legislation to remove that notion. It’s not dealing with specific legislation; this is an idea?---It’s a brainstorming idea that’s come forward and I don’t think it went anywhere.

No?---I hadn’t seen it before you put it up on the screen.


5

10

15

20

25

30

35

40

45

Is that an idea that you approved of though?---Well, I hadn’t seen - - -

Not because of the document?---I hadn’t seen it, or the idea, so - - -

Well, you – so you had never turned your mind to the question of amending - - -?---Never.

- - - youth justice legislation?---Not .....

And you don’t’ recall doing so at that time?---No, never.

And do you say you did not discuss these individuals matters as a result of a brainstorming activity?---Not as a result of a piece of paper like this, no.

Are you saying you never did discuss these matters – and I’m just referring to a brainstorming session here. Did you ever sit down with Elferink and have a brainstorming issue on tough on crime measures as set out in this document. Did you not do that, did you do that, or do you not recall?---Well, what I can say is there was a couple of these points where we had discussions about them in the past, such as destroying hoon cars, and what you do with the cars of repeat drink drivers, but they never progressed. But many of those other things there, there’s – like, (27) expand Corrections intel unit to combat contraband. Well, I haven’t discussed that, but I’m sure that they probably talk about it operationally within the agency. There’s nothing that come across my desk, though, or debated.

Okay. What about (29) announcing a review for - - -?---I’ve never heard - - -

- - - mandatory sentencing?---Never heard about it.

Did you approve of mandatory sentencing for juveniles?---I don’t have an opinion on it, and I’ve never spoken about number (29).

Alright. Thank you. Those are my questions.

COMMISSIONER WHITE: Yes. Thank you.

THE WITNESS: Thank you.

COMMISSIONER WHITE: Mr Boulten.

<CROSS-EXAMINATION BY MR BOULTEN [12.00 pm]

MR BOULTEN: My name is Phillip Boulten and I appear for the North Australian Aboriginal Justice Agency, NAAJA. When your party won the 2012 election you went to the election with a platform or a manifesto that included law and order

.ROYAL COMMISSION 28.4.17 P-3262 A.G. GILES XXN©Commonwealth of Australia MR BOULTEN

5

10

15

20

25

30

35

40

45

policies, some of which were tougher sentences for assault, tougher bail laws, jail means jail. That means if you get a jail sentence you serve the jail sentence. School based constables and so on and so forth, do you remember all of that?---Roughly, generally speaking.

It was a policy that would normally be regarded, in the normal political world of Australian politics, as a tough on crime policy. Do you not accept that?---I take your opinion.

No. My opinion is irrelevant?---I don’t have – I don’t have – I don’t have an opinion on that assessment.

You have given evidence that might surprise many people, including people who used to elect you, that your government did not reiterate a tough on crime approach, but surely that’s not correct, is it?---I don’t have an opinion.

What do you mean, you don’t have an opinion?---Well, what was the question?

The question is: you did have a tough on crime approach in - - -?---Well, that’s a statement.

- - - your Government, didn’t you?---We had an approach that sought to pay back Labor debt and fix the economy of the Northern Territory. That was our first two priorities.

So - - -?---And yes, we had policies in there on how we support to protect Territorians, but our number 1 focus was building the economy of the Northern Territory.

COMMISSIONER WHITE: Is it that you reject the label that Mr Boulten is seeking to put on the tranche of policies which he just enunciated to you, Mr Giles?---I don’t – I don’t have a list of those policies in front of me to know what they all were, but I was asked from an Australian context what’s my opinion about that policy suite and if that’s tough on law and order. I don’t have an thought on that.

I don’t think it was what – do you have an opinion. The question was relating back to the time of when the Government of which you were a member was elected into office in 2012 with those sorts of policies, could that be given a descriptor of a suite of policies that might be described, in the vernacular, as a tough on crime or law and order?---Look, I – I don’t have full recollection of the 2012 election process, I wasn’t the leader, but I know that law and order wasn’t our 1 one platform about where we were moving. I remember us being highly critical of the Territory Government at the time, being Labor, of building $1.8 billion prison. I remember receiving a lot of community feedback about the lack of protection in Alice Springs, where my electorate was, a lot of concern about law and order, but there was also a lot of concern particularly by organisations who worked in the – in the legal fraternity that


5

10

15

20

25

30

35

40

45

we were spending too much money on law and order from a prison point of view and that that needed to be reduced. So I recall in August 2012, that we went to the election saying that we were opposed to the $1.8 billion prison, because all we were doing was building more prisons to put people in, so I don’t actually – yes, there were law and order policies, but I don’t actually recall it being heavy on law and order.

Alright. Well, that’s a sensible answer. Thank you. I only say that because if you think about it, it doesn’t matter what you’re thinking now about it. It’s what was in the mind of your Government at the time?---We weren’t just talking law and order. There was a whole range of things.

Sure?---The economy was number 1.

Of course. Thank you. Thanks, Mr Boulten.

MR BOULTEN: So the Commission has heard you answer maybe dozens of questions this morning where you’ve not really been able to remember very important issues that are of significance in this Royal Commission. Did you prepare a statement to help you organise the information that you might be asked about?---No.

Did anyone ask you to prepare a statement for this Royal Commission?---I was asked if I would like to consider preparing a statement.

And did you decide not to?---Yeah, I decided not to. I thought I’d come here and be willing to answer any questions just to help the process along the way.

And dozens of the questions have been answered, “I can’t remember.” You agree with that?---Well, if they – if they were not directed to me, I’ve said that I didn’t receive an email or a document, or if it was in a context where I couldn’t recall receiving something or discussing something, I’ve given that answer.

Mr Elferink has given evidence, broadly speaking, suggesting that he took important infrastructure proposals to Government for support and didn’t get any. Do you remember that happening?---Well, I certainly remember John taking a range of different Cabinet submissions for the purposes of budget Cabinet to budget Cabinet, along with every other Minister. I think we had truckloads of proposals that had come through, and Cabinet made decisions about where they were directing expenditure. I know that some were approved and some weren’t approved.

So generally speaking, without going to the details, the Commission is hearing evidence up and down the hierarchy of who did what and when. So the effect of your Minister’s evidence is, “I knew there were lots of problems. I didn’t know as much as the people below me, but I knew enough to present proposals to Cabinet for – to my colleagues for infrastructure assistance and the only time I ever got it was to


5

10

15

20

25

30

35

40

45

spend $800,000 to refurbish the Berrimah prison to replace the old Don Dale.” Is that right or not?---Incorrect.

Well, why is it incorrect?---Well, I think there was a figure referred to earlier today of $760,000, if I remember.

Well, forget the 800 as opposed to 760 or 780, forget that. What about the other part of that proposition?---Well, if you let me answer the question that you have proposed to me, I’m pretty sure the budget went from 133 million in 2012/13 to about 250 million in ’16/17. Now, that budget mainly includes operational expenditure, not capital expenditure. They treated – two different processes for the purposes of the budget and to me that shows that there was a range of initiatives that were approved during the four year tenure of government. Plus, I know that we’re now spending on top of that, from an infrastructure perspective an extra, you know, the $1.8 billion for the new prison which equates to about $60 million a year for the years 30 years, there’s that money, there was the Sentenced to the Job program that was set up, there was millions and millions and millions of dollars put into the Sentenced to the Job program. I remember when we had to put in place the – you know, get the – get ready to open the new jail there was a range of money that had to go into that process. I can’t remember exactly what or how much, but to say there was 760, 780, or 800 is completely incorrect. There was - - -

For juvenile justice there was, wasn’t it?---Look, I don’t think that’s correct at all.

Juvenile justice infrastructure for a prison?---I don’t want to get into a belligerent argument, but I know when we came to Government there was about a million dollars being spent on youth justice - - -

For infrastructure?--- - - - in the Northern Territory, and when we left it was substantially more than that.

Did you knock back the idea of a brand new juvenile detention centre?---Look, it’s not for me to knock back ideas. It’s a matter for Cabinet.

Did the Government knock back this idea? Did they receive the proposal from the Minister and reject it? That’s - - -?---I can’t remember the proposal ever going to Cabinet.

Okay. So you really have no memory of your Minister coming to you and asking for money to build a new juvenile detention facility; is that what you’re saying?---I don’t – I not remember seeing a proposal in Cabinet for a $150 million for a new juvenile detention centre.

What about $1.8 million or thereabouts?---I don’t recall that.


5

10

15

20

25

30

35

40

45

Even on recurrent expenditure, you were aware that for juvenile prisoners the cost is enormous, in the vicinity of 3 or $400,000 a year for every child held in detention. Do you understand that?---I don’t. I take your word as verbatim.

Okay. So you knew when you were in office as the Chief Minister that the levels of incarceration of Aboriginal people in the Northern Territory were shameful. You knew that, didn’t you?---I knew that they were terribly high.

You knew that, as well as keeping the community safe, reducing the incidence of Aboriginal incarcerated was an important issue, didn’t you?---That’s right.

And you knew that the keeping the people safe needed to be counter posed to policies that might reduce the number of people, not just Aboriginal people, but detainees in adult and juvenile detention, full stop; right?---What was the question again?

Was it – it was a real need to reduce the numbers of people in prison both adult and - - -?---It’s my – and it’s always been my desire. I mean, the reason I got involved with – back into politics in the Northern Territory was because I wanted to see more assistance provided to Aboriginal Territorians, particularly to youth, to young kids, and I’ve always held a – the motivating force of me coming into politics was Aboriginal affairs, and one of the things I wanted to see is a reduction in the amount of people who are going into prison, and I’ve got firm beliefs on that, and about the way that we should be taking action to make improvements in that area.

Did you think your Government succeeded in that respect?---I think, on reflection now, it was certainly a basket case when we came into Government on 25 August 2012. It’s not a shining example now, but there have been improvements made.

I would like you show you a document on the screen which is in the 18 April tender bundle tab 96B, and it’s about a meeting that occurred with the representatives of APONT, and the meeting was on 1 September 2015. And these documents are really just a prompt, the way that another document was used by Counsel Assisting. But just to show you where we’re heading, this refers to preparations for a meeting that was about to take place, and if we could go to page 2887 in this document, down the bottom of the page there’s an email from the chief executive of NAAJA, Ms Collins to Salli Cohen, raising points that – to be – that are to be brought up in the meeting. So the meeting, I can tell you Mr Giles, was I think 1 September 2015 and Ms Collins attended that meeting with other representatives of APOD, John Paterson from AMSANT and Robby Dalton from the Central Lands Council. I don’t suppose you remember that meeting?---I remember catching up with them. I don’t remember the meeting itself.

That’s fine. Can I just raise with you the topics that seem – that I am instructed were raised at that meeting in the dot points that are at the bottom of that page now on the screen. One of them is that it was represented to you that the Berrimah prison was


5

10

15

20

25

30

35

40

45

inadequate for young people. Do you accept that you were told this by APOD in August 2015?---I don’t recall, sorry.

Did it ever – did you ever hear representations made suggesting that the Berrimah facility – the new Don Dale was not up to scratch for young people?---I don’t think anyone ever mentioned that to me, to my recollection.

I’m suggesting it was mentioned at this meeting on 1 September?---I’m suggesting to you that I don’t recall ever anyone mentioning it to me.

That’s fine. “I don’t recall” is different, though?---But I don’t recall. I mean – I mean this is an email transcript of a proposal to have a chat to me in a meeting. I’m not involved in any of these things. I don’t have notes or diary notations or staff – former staff with me to say what was discussed in that meeting. I don’t recall, I’m sorry.

I suggest to you that one of the other things that was discussed was that there are a very large percentage of kids in youth detention who are there on remand, not serving sentences. Whether it was brought up in this meeting or not, were you aware that that was a problem?---Not to the extent of 79 per cent. I knew there was some in there on remand. I wouldn’t have had an idea on the numbers.

Forget about the percentage though: you were aware that that’s an issue?---Well, I was – would have been aware at that meeting, if it was told to me, that there are some in remand. I wouldn’t have known how many, who, or what, or anything like that.

Did you think that it was a particular problem that detainees were in and out for very short periods of time, either on remand or for very short prison sentences?---I would have to know exact example to know exactly what was occurring to have an opinion.

This is - - -?---The process, as I understand it, was that when young people were arrested and they – some were bailed and some were kept on remand because of the situation that they were in. That was the situation that was employed there, and I accepted that.

So you want to know exact examples. The facts that you might consider are outlined in the fourth dot point:

429 receptions into Youth Detention Centres in 2012/2013 involving 227 distinct youths.

Where there was, to your knowledge, perhaps 40 or 50 spots at Don Dale, perhaps 20 at the Alice Springs Youth Detention Centre. That’s a big churn factor, isn’t it?---Well, I mean, I don’t know. I mean, is it – are you saying to me that these detainees were not kept in remand for very long, or are you saying that they were kept in there for long, because - - -


5

10

15

20

25

30

35

40

45

Well, you can see for yourself, just do the arithmetic?---Well, I don’t know how long each person was in there for.

Okay?---You’re saying that there are 227 distinct youths. Obviously, out of 429, there are a number of repeat offenders. Now, what I can tell you is as Police Minister the communication I had with many people within police agencies, and I can’t name any particular ones, but including Police Commissioners at times, and also talking to a particular operation – I can’t think of the name of the operation, it was based out of Casuarina Police Station, but they particularly looked at break and enters and some of those types of crime. They used to say to me on a regular basis – and their advice to me was, “If you manage to apprehend the core three or four people who are committing most of the crimes, a lot of the crime would disappear, and then you could try and assist those young people in a remediation or rehabilitation sense.” How that fits in here, I’m not sure. I don’t know how many of the 429s were in and out. How many of – you know, 202 that weren’t distinct receptions went through repeatedly. There’s not enough information there for me to know, and you’re presenting that to me now, and I don’t know if I was presented that in the meeting.

Did anyone tell you that the government should build a purpose-built youth facility at any time when you were in the Chief Minister?---I do not recall ever being told that we should build a purpose-built youth detention facility other than when I took the Corrections portfolio and Keith Hamburger said we should never have built the $1.8 billion prison. We should have built a youth detention facility.

Okay. So I’m suggesting to you, positively, Priscilla Collins told you that on 1 September 2015. What you do say about that?---Well, I don’t recall that.

No?---I don’t recall that.

Okay. So can we just scroll down the next page?---And I always got on very well with Priscilla Collins, I’ve known her for a long period of time, and maybe she said that, or maybe not, but I don’t recall that.

I suggest you were also lobbied to implement bail options for young people to provide them with bail support. Are you familiar with that concept? Bail support for kids who are actually arrested?---Yes.

It’s a good idea, isn’t it?---It depends - - -

Helping them to report - - -?---Depends what the program is.

Well - - -?---Depends what the bail support is. I mean, I – many years ago I did some stuff with young Aboriginal bailees who were in what I would refer as a bail house in New South Wales, trying to help out kids to get on the straight and narrow before they went to court. I always thought that was a pretty good program. Depends on what program you’re talking about here.


5

10

15

20

25

30

35

40

45

So bail accommodation, you would agree, is a good idea?---Well, I always thought it was good.

Especially if kids haven’t got a stable home?---Absolutely.

Assistance with the kid to access early intervention services, like drug and alcohol services, whilst on bail. That would have to be a good idea, wouldn’t it?---If it met the needs of the individual.

Certainly. You know a lot of the kids have drug and alcohol problems that go into detention, don’t you?---Well, I don’t know their individual cases, so I can’t answer that question.

When you were the Chief Minister there were very, very few therapeutic drug and alcohol programs in the Northern Territory, weren’t there?---I don’t know the answer to that. I couldn’t tell you how many programs there are, or were, or are today.

You would agree that if the facts are, and given that you don’t know the facts, that there is a huge problem with alcohol in the community and with other drugs, in order to address juvenile justice issues effectively there would need to be appropriate funding for early intervention drug and alcohol programs?---Well, I don’t accept the premise or the statement as part of your question, but there certainly should be support services given to any youths that may have drug and alcohol issues.

Did you do anything, when you were the Chief Minister, to promote any such programs?---I can’t recall exactly what we were doing. I remember putting in place – I remember the Minister at the time put in place the youth services framework and provide – trying to provide a range of different initiatives and responses to respond to the needs of youth while we were in government. What exactly those programs were, and how much money was spent, I couldn’t tell you.

You were asked about youth detention staff needing appropriate training. This never really came to your attention - - -?---No.

- - - until quite late in your term as Chief Minister?---Not until I – not until I received a full briefing after I took the portfolio.

So what I suggest to you is that on 1 September 2015 the APOD meeting put before you the recommendation, as is revealed in that dot point there, that juvenile detention staff need appropriate training. What do you say about that?---Well, I can see that written on an email. What was discussed in a meeting, I’m not – not aware.

Did you - - -?---I actually remember - - -

- - - ever?--- ..... APOD meetings, because there wasn’t just one APOD meeting that I had, I had a couple, and I remember putting a proposal to Priscilla and Patto and the others that were there at the time – and I can’t remember who was at different


5

10

15

20

25

30

35

40

45

meetings – that I really wanted to set up a support scheme where we could see an increased level of indigenous employment in our community where we might be able to provide opportunities in the public services, the community sector, and the private sector, and see how the NT Government under what I was leading what we could do with APOD, who have a number of different organisations as members, how we might be able to set up an employment program to give job opportunities in the broader community, give public servant employee experiences in the community sector, private sector, and the like. That was one of the main things that I – that was one of the big things that I had a discussion with them about at the time, and that something that I still think today needs to be implemented, but that’s more of a general discussion on a different matter.

COMMISSIONER WHITE: Mr Giles – so your Government had a policy, I think in the last year of your Government being – your party forming the Government to have a percentage of public service jobs for - - -?---Yeah.

- - - Aboriginal people?---Yeah.

Is that a correct recollection?---It’s correct. I got highly criticised for it, and I’m still criticised today. When I came in we had an 8 per cent employment rate in the public service, when there’s a 30 per cent population, roughly speaking, in the Northern Territory. And I know a little bit about indigenous employment from past experience. And I said that it wasn’t good enough. I got someone I knew who had orchestrated or implemented management programs for Aboriginal employees in the public service in New South Wales to do a review in the public services for us, and I set a target that I wanted it doubled from 8 per cent to 16 per cent in four years – between 16 and 20 – to see it doubled. I don’t know what the rates are today. When I left they were close to 10 per cent in 18 months, so we had increased by 10 per cent. So I was pretty keen on that and I’ve always – as I was alluding to Mr Morrissey earlier, I’ve always taken an economic approach, and I think a lot of the solutions in Aboriginal affairs is about jobs and economic opportunities. And I know there are a whole lot of different dynamics from a Government’s point of view, but to answer your question, 8 to 16 per cent, because I know that – you know, this comes back to one recommendation I forced to go into the Royal Commission terms of reference about care and protection of children, and the terminology that it presents, and that is if you have one parent in a family that’s working you’re more likely for a kid to go to school, get a healthy meal, to have better health services and so forth, so I was very keen on employment for that particular reason.

Thank you. Mr Boulten, I did interrupt your train of questioning.

MR BOULTEN: No. That’s fine.

On a completely different topic - - -?---Sorry.


5

10

15

20

25

30

35

40

45

- - - the – is it correct that actually you never read the Vita Report?---No. I’ve never read the Vita Report. I might have seen – might have gone through the recommendations when I took the portfolio.

Never read the Gwynne Report?---No.

You did go on a tour of Don Dale before everybody got shipped out?---I went there, at the request of the Minister, to have a look at the wood panelling and the toilet facilities in particular.

And is it right that the only shortfall in standard that was specifically referred to you by the Minister, or by anyone in juvenile detention at all, was there weren’t toilets in the bedrooms and there was a lot of wood panelling, but no one drew to your attention the problem of the BMU; is that your evidence?---Not to my recollection. I don’t remember that being raised with me by staff or otherwise. Not saying that it wasn’t, but I don’t – do not remember – I don’t remember visiting that section of the facility.

Records suggest that you did?---Well, I’m happy for you to say it. But I’m just saying I don’t remember going .....

So if you did, it was of no consequence, because you don’t remember it; is that right?---Well, what I’m saying is I don’t recall going there, so I can’t give an opinion on that. But what I can say is that John Elferink was passionate about improving the amenity of the facilities.

Yes. But he didn’t say anything to you about the very highest security unit being unfit for purpose; is that what you’re saying?---No, that’s not what I’m saying.

You don’t remember it being said?---No, I said that’s not what I’m saying.

Well, as I understand it, the only thing you remember that he ever said to you was about the wood panelling and the toilets, but you said you don’t remember him saying anything at all about - - -?---No, I don’t.

- - - the BMU being unfit for service?---But I – but I do – but I do remember him being passionate about it being a fire risk with the wood panelling, and he didn’t want kids losing their lives in a fire, and he was very passionate about making sure kids have a more improved level of amenity in the cells, and I took that to be pretty important.

What about, in the immediate wake of the gassing incident when you were briefed about what had happened, did the Commissioner or Mr Elferink or any other person advise you that the BMU was not fit for purpose?---Not – not that I can remember.

Did you ask, “What is this place, where are these kids, how did this happen”?---There was a discussion in Cabinet at the time and we had some


5

10

15

20

25

30

35

40

45

information provided to us. I can’t recall that discussion at the time, and nor could I talk about it, but I can’t recall the Cabinet discussion nor the deliberations at the time.

There’s been quite a lot of discussion in evidence in this Commission about naming and shaming children who are involved in the youth justice process in the Northern Territory. What is your view about whether children, 14, 13, 15-year-old offenders should be named in the press for being in trouble?---My personal view is that they shouldn’t be named.

Is that - - -?---They shouldn’t be named.

Okay. For good policy reasons?---I just think - - -

Or is this personal - - -?---It’s about the protection of the child while they’re under 18. Just a personal opinion.

You would accept, wouldn’t you, that having your name in the paper is likely to have a deleterious effect on the offender not to provide some sort of incentive for rehabilitation?---I would have to see research into that to know the answer.

Well, what do you think?---I’m not expert in that to be able to give an answer.

Okay. Fine. When you did see the Four Corners show and considered what it depicted, you were told that it related to incidents that went back some years; right?---I wasn’t told until the following day. When I tried to find information, I was talking – when I was answering questions earlier today, I said that I used a term culture of cover-up, I think maybe in a press conference, I can’t remember where it was.

And what you said is:

I think over time there’s most certainly been a culture of cover-up within the Corrections system.

And you thought that:

The culture of cover-up had been going on for many a long year. The footage we saw last night went back to 2010 and I predict this has been going on for a very long time.

That’s the quote.

?---At that time, when I made that comment I was unaware that matters had gone before court previously. As I said earlier today, watching that footage, I was under assumption that those things had occurred in the last six months.


5

10

15

20

25

30

35

40

45

So one of the images was a picture of Dylan Voller in a spit hood sitting in a restraint chair; did that shock you?---No.

That wasn’t – that wasn’t a shocking image?---No. Because we had been briefed about – when the legislation went through, I think we had been briefed about the need for spit hoods to protect some of the prison officers who had been spat on and potential transfer of disease and so forth, and the restraint chair, because there was – the information that we were given was that there were inmates who were trying to harm themselves, in particular, harm others yes, but particularly harm themselves. And during the time of that Four Corners footage – after, but I’m not sure how long after, I was given a bit of information about how many prison officers were currently on – permanently or – permanently incapacitated through their job because of violence and that sort of stuff. So – I mean, it’s a difficult image, but it didn’t shock me because I – we had already been told about how it would operate.

So you would advocate in favour of strapping traumatised young people to a restraint chair and putting a spit hood on them if the circumstances were such that they needed to be protected from themselves; is that your evidence?---Cabinet took the position that, in the interests of trying to protect an individual who might seek to harm themselves, that the mechanism that we were given advice by the Corrections Commissioner would meet the needs of protecting the child.

And you know that the Government – the Government after yours has amended the legislation that you amended so as to remove the restraint chair. Do you agree or disagree with that step?---Are you aware that I was the one who put the ban on the restraint chair and the spit hood being used?

Well, what do you think about the legislation to ban?---I haven’t seen the legislation. I haven’t been following Territory politics.

Sorry?---I haven’t seen the legislation.

What do you think about the idea of banning the restraint chair?---I don’t have an opinion on it. I’m not involved in politics in the Territory anymore, so I can’t ..... answer that question.

There’s a lot of things you don’t have an opinion about that you were responsible for?---I’m not in politics anymore now, so I don’t need to have an opinion on that. What I do care about is the care and protection of children.

Thanks.

COMMISSIONER WHITE: Mr Lawrence.

<CROSS-EXAMINATION BY MR LAWRENCE [12.33 pm]

.ROYAL COMMISSION 28.4.17 P-3273 A.G. GILES XXN©Commonwealth of Australia MR LAWRENCE

5

10

15

20

25

30

35

40

45

MR LAWRENCE: Thank you.

I represent the juvenile AD. Somebody will give you a note in a moment to identify him?---I don’t need to know.

I’m not expecting you to know him, being – mind you being the Chief Minister, rather than – but you might – he’s actually from your neck of the woods?---I’d rather not know.

Well, look anyway, because you might know him?---For what purpose do I need to know his name?

COMMISSIONER WHITE: All the witnesses who have been asked questions, Mr Giles, have been provided with the names of those vulnerable witnesses for whom we’re using just letters to identify them. It often assists to contextualise the questions. Sometimes they have some recollection of discussions about a particular individual?---Yeah.

MR LAWRENCE: Do you recognise the name?---No.

Okay. Can I ask you, as the former Chief Minister, about the decision to move the juveniles into the former Berrimah adult prison. We gather from the evidence that’s before us that that was a decision made by your Cabinet in early 2014; correct?---I don’t know. If you gave me the Cabinet decision which had the decision date on there I would be able to confirm the date, but I don’t know when that was.

COMMISSIONER WHITE: Well, perhaps the date isn’t so, essential but in or about?---I don’t know – I don’t know if it was ’14 or ’15. I mean, I take your advice - - -

You know about the move?---We moved, yes, absolutely.

MR LAWRENCE: Well, you must know it was in 2014 rather than 2015?---I don’t, but I’m happy to take - - -

Really?---I don’t.

Okay?---I remember the move. I remember going in and having a look at the old facility. I remember being – I remember Cabinet being convinced that we needed to move and the move was done. I don’t remember when that was.

Okay. And the situation was that the decision was made not to upgrade Don Dale but to reopen Berrimah and upgrade Berrimah; correct?---Yeah.

And the costing of upgrading Don Dale was approximately $4 million. Do you accept that?---The old Don Dale?


5

10

15

20

25

30

35

40

45

The old Don Dale?---I can’t recall how much it was.

And the cost of refurbishing or upgrading, or whatever the right term is for changing the former adult jail, was 800,000 or 796,000. Do you remember that?---I’ve been briefed on that today – told about that today.

Now, what I want to ask you about is that decision meant that you were – well, let me go back a bit. Berrimah had to be closed down; right?---Yeah. It was the plan to be closed down when the new one got opened.

Yeah. And it had been described by your Commissioner of Corrections as “fit only for a bulldozer”. Do you remember that?---No, I don’t.

You don’t remember that?---No.

You don’t remember that often being quoted in the media in various contexts in relation to the issues that this Royal Commission is trying to .....?---I don’t recall that ever being said.

You don’t recall that ever being said. Is it the case, as far as you were concerned, that Berrimah was only fit for a bulldozer by 2015 bearing in mind it was over 35 years old?---Well, I don’t think age matters in infrastructure, but I’m not an expert to comment on whether it was fit for purpose or otherwise. I that knew the former government was spending $1.8 billion on a new facility largely, as I understand it, because there were more numbers of prisoners coming through.

Okay. Now, you were aware that the proposal – when indeed this happened – was to put the children from the closed Don Dale into Berrimah prison, right, once it was reopened?---Mmm.

Okay?---Yep.

Now, did you have any concerns as the Chief Minister, as an elected representative, as a Territorian, as a citizen, as a parent, about the concept of putting children into what was previously habitated by adult convicted male prisoners?---From an infrastructure point of view, if it had been refurbished to the point where it was going to accommodate the people who were going to go in there, I wouldn’t have a problem.

Well, did you consider it?---Absolutely.

Right. So did you think part of the proposal – and this happened – was that the kids were put into B Block, right?---I don’t know what that means. I can’t remember B Block.

Okay. You don’t know what B Block - - -?---I don’t remember B Block. I think I’ve only been to the new Don Dale once so I mean, I don’t have my bearings on the site.


5

10

15

20

25

30

35

40

45

Had you been to the adult Berrimah prison before?---No, never.

Did you know that B Block was the maximum security section?---I read something about it.

Well, was it discussed with your colleagues that that might not be an appropriate place to put children, bearing in mind it had previously housed killers, rapists and paedophiles, males?---I can’t recall. And if I did it would be a deliberation within Cabinet anyway.

Alright. Well, I suggest to you that it would have had to be something that would have posed a concern for you?---Is that a question, sorry?

Yeah, I’m suggesting that that – you would have had to have had a concern, surely to goodness, about putting young girls in the former maximum security section that had been habitated by killers, paedophiles, rapists?---Well, we were under the understanding that it was going to be renovated to a point to be fit for purpose for the people who were going to occupy the premises.

Alright. So are you saying that you never actually crossed your mind that it might not be a good thing for a young girl to stay in the cell previously occupied by a killer?

MR MALEY: Commissioners, I object. It’s a bit of theatrics, talking about killers and rapists. You know, my friend had the response from the witness, and I object to the question being repeated. It’s just theatrics and - - -

COMMISSIONER WHITE: Yes, Mr Maley. It’s fair enough. It is the third time you’re putting the question, Mr Lawrence.

MR LAWRENCE: Well, there’s nothing theatric about the term “killer” and “rapist” because that’s precisely what they were.

COMMISSIONER WHITE: No. But this - - -

MR MALEY: I renew my objection.

COMMISSIONER WHITE: Thank you. Mr Lawrence, the objection is upheld. You’ve asked the question rhetorically three times. So perhaps you could ask the next question.

MR LAWRENCE: Alright.

Now, have you – I think you said earlier in your evidence that you haven’t been following this Royal Commission; is that correct?---That’s correct.


5

10

15

20

25

30

35

40

45

At all?---I’m currently residing interstate. I’m not watching it online; I’m not following the news.

This is a Royal Commission of Inquiry that you called when you were the Chief Minister of the Northern Territory; correct?---That is correct.

And you called for it because you were so shocked by the Four Corners program that revealed what was apparently going on in your Department of Corrections; correct?---Yeah.

And you did that literally within 24 hours?---Less than.

And it was in consultation with the Prime Minister of Australia?---There were conversations which occurred.

Who agreed and also called for this Royal Commission of Inquiry?---Took my advice and recommendation to come forward with the Royal Commission.

Alright. And you’ve been legally represented from the moment this Royal Commission commenced in September?---No.

And throughout?---No.

Well, Mr Maley here made an appearance on your behalf in September?---Yeah.

And have you been furnished with the material that the Royal Commission has investigated and produced in relation to this stuff?---I’m not sure of that answer. There was – I think Mr Maley represented me for a very short period of time around September, then I had no representation until yesterday.

Until yesterday?---Until yesterday at 2 o’clock.

You must have known that you would have been involved in this Royal Commission, bearing in mind you were the Chief Minister during part of the relevant time?---I was hoping I was involved. I wanted to be involved. I want the Royal Commission to be successful. I remember having a chat to one of the Commissioners before the appointment was announced wishing all the best and having an open door policy so that as much information could come forward so that the Commission achieved the best outcomes for youth in the Northern Territory.

Right. And surely you would appreciate, or surely you would think, that the Commissioners would expect you to assist them in their task?

MR MALEY: Commissioners, I – how my client follows the Commission on a day-to-day basis, how could this be relevant to the good work the Commissioner has undertaken? So I object to this entire line of questioning.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Thanks you, Mr Maley. Mr Lawrence, I think I can see where you’re going, but could you just move there a little further.

MR LAWRENCE: Very well, thank you.

COMMISSIONER WHITE: More quickly, Mr Lawrence, or we will have the same problem as we often have.

MR LAWRENCE: Right.

But you wanted to succeed. Why haven’t you come today prepared properly to assist us, bearing in mind your key role historically in what they are investigating?---Well, I would disagree with your question. I’m here fully prepared to answer any questions to the best of my recollection and knowledge and, as I gave in an early answer today, I wasn’t the Minister for Corrections, albeit for a couple of weeks at the end of term in Government. There were 34 portfolios, I had a number of portfolios myself. and I had a range of – I had a very busy work day, seven days a week, 16 hours a day, doing a whole lot of things. So having an instant memory recollection back to 2009, ’10, ’12, ’13, ’14, ’15 is just not possible but I’ve come here, obviously summonsed, but come here very keen to help out the Commission wherever possible, answer any question, open and transparent.

Well, Mr Elferink came here yesterday. He had prepared a statement. He had looked into the issues, and looked into the material that was available, so that he could provide a statement as best he could, presumably, as to his recall of things that occurred. You could have done that?---I chose to come here and be open to anyone asking me a question.

But why didn’t you prepare yourself? Why didn’t you avail yourself of access to all the relevant documents which you could have easily had so that you could answer questions instead of turning up saying you can’t remember?---I don’t understand the point of debating why I didn’t go and read something before I came. I’m here to answer a question about how I can support, improve the opportunities for young people in the Northern Territory. I’m here to answer the question. If you’ve got a question about that stuff, I’m happy to give you some advice or give you my thoughts on any of these things, or any recommendations.

Or you might say you can’t recall?---Well, you need to keep in mind that I wasn’t the Corrections Minister, so not everything came to my purview, at the same time as John wasn’t the Commissioner, so he didn’t get everything either. So if the information doesn’t flow to me, I can’t give you an answer on that question. And who said what in a meeting four years ago, when I’ve been having 20 meetings a day, 30 briefings a day, everything X, Y and Z, it’s just – I don’t have the ability to recall it. I think any reasonable person would understand that.

Okay. The – am I to take it from your evidence today – I was listening to Mr Boulten’s questions – that you really didn’t have as a priority as leader of the CLP


5

10

15

20

25

30

35

40

45

law and order as an issue?---It was an important issue but, for me, I’ve always believed that – and as I think I gave your answer earlier, Aboriginal affairs has been the driving force that got me into politics in the Northern Territory and providing a change, and from a philosophical point of view different people have different aspects about the best way to fix that, and obviously there’s a life cycle of a whole lot of policy areas where changes need to be made, investments need to be made. But I’ve always thought that economic development, particularly employment, has been the area where there hasn’t been enough change occurred. Because I firmly am of the view that if we had more Aboriginal adults working we would have less challenges at the lower end of the age spectrum. That’s the position I took, and so when you say, “Was law and order number 1?” For me, it wasn’t. For me, it was employment.

But okay, if it wasn’t one, it was certainly something that you had firm views about?---I have firm views about that. I have firm views about complete the Palmerston hospital, about completing Tiger Brennan Drive, about a whole range of things in the Northern Territory. That’s my job. I don’t get into the nitty-gritty of each individual area, but at the same time I’ve got an electorate, or I had an electorate as the Member for Braitling, the people in that electorate, the people who vote for you are asking you to do certain things for the area and the number 1 thing in Alice Springs, even though law and order is often talked about, it was always about bringing the tourists back to Alice Springs, because you can have every other program you want, but if you haven’t got anyone in jobs it’s a challenge.

And the firm views that you did hold about law and order were that you should be tough in that regard; correct?---I – I certainly don’t believe in being soft.

Now, in fact, you even had aspirations to be the Correctional Minister so that you could bring in the policies that you really thought were relevant and helpful, didn’t you?---That’s not correct. I made a well-known statement that I said I never want to be the Corrections Minister but, if ever I did, I think I referred to a concrete hole and at the time those comments were, you know, the wrong comments to make. But – you know, I don’t support those comments but they were the comments I made reflecting the views and concerns in the community at the time and the community in Alice Springs who’s had a gutful of crime, and it didn’t matter if you’re black or white, people had had a gutful, Aboriginal people were sick of crime, non-Aboriginal people were sick of crime. It was the nature of Alice Springs, and – you know, flippantly making comments such as that are not the right way to go, but as a politician you are there to air the concerns of the community.

Even though you don’t agree with them?---Don’t agree with - - -

The views of the community?---No. I do agree with the views of the community.

Alright. Well, you say that you said that?---I was part of the community.

Well, you say that you said that. What you actually said was:


5

10

15

20

25

30

35

40

45

I’d love to be the Corrections Minister, but it’s not the portfolio I really aspire to, but if I was the Prisons Minister, I would build a big concrete hole and put all the bad criminals in there. Right, you’re in the hole, you’re not coming out, start learning about it. I might break every United Nations Convention on the rights of the prisoner, but get in the hole.

?---Mmm.

That’s Adam Giles.

MR MORRISSEY: Can I rise for a moment, sorry, to raise an issue of law. And perhaps suspend the ticking of the clock, as far as Mr Lawrence goes. There may be a parliamentary issue about that, in terms of its derivation, and I would like to speak to the Solicitor if I could just cross for a moment? Your Honour, I think the document that my learned friend is referring to is not a parliamentary document, but I think it’s lifted directly from that, and it might fall within the purview of section 6 of the Act, which I will bring up if I may.

COMMISSIONER WHITE: Yes. I have – well, it’s in – it may do. It’s certainly in the transcript of the interview.

MR MORRISSEY: Yes.

COMMISSIONER WHITE: As you probably recall, Mr Giles, Ms Woolf was keen to quote it to you. My impression, from your response as well, is that it’s been a comment that’s been much quoted back at you?---Yeah, that’s correct.

But as for traducing – to use the words of the provision in the powers and privileges, you can’t go there, Mr Lawrence.

MR LAWRENCE: Right. But can I ask him this: you don’t disagree with that?

COMMISSIONER WHITE: I think that’s – I think you have to walk away from it. It’s been said, it’s been acknowledged.

MR LAWRENCE: Yes. Alright. That’s all I have.

THE WITNESS: Could I get some water.

COMMISSIONER WHITE: Yes, please. Could the witness get some more water. I really don’t feel I should be the water person?---Sorry. I didn’t know who to ask.

COMMISSIONER WHITE: No. I’m not blaming you, or the myriad of people who could be seeing that you’ve got water?--- .....

And need to do so.


5

10

15

20

25

30

35

40

45

MR MORRISSEY: Mr Giles, from this point on, if you need anything like that just direct them to me?---Sorry. Thank you.

<CROSS-EXAMINATION BY MR O’BRIEN [12.51 pm]

MR O’BRIEN: Commissioners, thank you.

My name’s O’Brien, I represent Mr Dylan Voller. Mr Giles, I want to ask you about this comment that you made after the Four Corners program of the culture of cover-up within the corrective services system. Were you aware, in April of 2012, that Dr Howard Bath, the Children’s Commissioner met with senior staff, including the CEO and two senior members of the Youth Justice Department to discuss serious and systemic problems as he saw them occurring within youth justice? Were you aware of that?---Not to my recollection and not being in Government, there’s probably no chance I would have been aware of that.

In April of 2012 you were in Government, you just weren’t the Chief Minister?---Sorry, we were in opposition, I think.

Yes. No, I think you - - -?---We were in opposition.

You were in opposition. So you weren’t aware of that meeting and you didn’t subsequently become aware of that meeting; is that the case?---No.

Okay?---I mean, that would have been a meeting that was held internal of Government of the day.

Very well?---With the relevant portfolio Minister.

And if it had come to the attention of the Chief Minister of the day, would that subsequently have come to the Chief Ministers who followed in time?---No.

No?---Not necessarily.

Very well. But in that meeting Dr Bath has given evidence in these proceedings, or will be giving evidence when the statement is tendered. that he showed three or four videos to - - -

MR MALEY: Commissioners, I object. My client said he (a) wasn’t in Government, (b) wasn’t aware that the meeting had occurred, and has not come into any information confirming it has occurred. Now my friend presses a hypothetical. I object to the question.

COMMISSIONER WHITE: It just depends what the question is. I think you’ve laid some groundwork, but I take it that you’re not going to - - -

.ROYAL COMMISSION 28.4.17 P-3281 A.G. GILES XXN©Commonwealth of Australia MR O’BRIEN

5

10

15

20

25

30

35

40

45

MR O’BRIEN: I’m not suggesting he was aware of the meeting. In fact, that’s the point of the question.

COMMISSIONER WHITE: Are you going to ask him has he at any time seen the footage? Is that - - -

MR O’BRIEN: Yes, I will come to that. Yes.

COMMISSIONER WHITE: Because I think that’s proper.

MR MALEY: I don’t object to that .....

MR O’BRIEN: I’m going there, Mr Maley.

MR MALEY: Pardon .....

MR O’BRIEN: See, what the Children’s Commissioner has said, that he gave these high level bureaucrats information about concerns that he had about systemic problems. You’ve probably become aware of that since, but you weren’t aware of it then?---No.

And he showed these three to four videos which also featured on the Four Corners program which shocked and horrored everyone including you; you understand that?---Yeah.

And he spoke to these senior bureaucrats about concerns – other concerns, other broader concerns such as excessive periods of isolation which become front and centre of this Royal Commission. Do you understand that?---Yeah.

Okay. And Mr Middlebrook was notified of that very meeting that very same day. Do you understand that?---Well, I’m not aware of that.

You’re not aware of that. I’m telling you that’s the situation; okay?---I’m taking your word.

Now, apparently Mr Elferink was not made aware of that meeting, despite taking over the portfolio. Do you understand that’s the situation?---I’m not aware of that.

Okay.

COMMISSIONER WHITE: Well, you could perhaps – you could ask Mr Giles to assume that was the case.

MR O’BRIEN: You can assume that?---I don’t think John was the Minister for at least three months till after – or five months after then or something.


5

10

15

20

25

30

35

40

45

Any event after the gassing incident which occurred on 21 August 2014 Dr Howard Bath urgently sought a meeting with Minister Elferink. Were you aware that that took place? Mr Elferink told us about that yesterday?---A meeting took place?

Yes?---I can’t recall it. Well - - -

You didn’t see Mr Elferink give evidence yesterday, is that the case?---I saw a bit of him on footage late yesterday, but I don’t know – if he was having a meeting with the Children’s Commissioner at the time it’s not something he would tell me about. I wouldn’t know who each Minister was meeting with at any – doesn’t matter who it was, at any point in time.

And in those days following the gassing incident Dr Bath met with Minister Elferink and showed him a draft copy of the report?---Right.

Which contained the still images you have been shown today by Counsel Assisting; do you understand that?---I accept it.

You’re saying that, as Chief Minister at that time, you did not become aware of that meeting between the chief – the Minister for Corrective Services and youth – in the youth department and - - -?---To the best of - - -

- - - the Children’s Commissioner?--- - - - my recollection, no. That’s tales not to say someone didn’t tell me that John had a meeting with Howard. I mean, maybe they did, but to my recollection - - -

COMMISSIONER GOODA: Mr Giles, what – in your role as – you were the Chief Minister?---Yeah.

What would the expectation be of your Ministers? What level of incident – would those photos for instance that you saw, would you expect they would be raised with you?---Not necessarily.

.....?---Different Ministers – different Ministers work in different ways.

No, but I’m talking about you as Chief Minister?---No.

Would you expect it to be raised? What would be the level of incident that would – from an ordinary portfolio would you expect to be raised with you as Chief Minister?---I’m trying to recall different types of briefs. Particularly from an AG’s point of view, Attorney-General, we might get briefed saying that the ministerial council, there’s an agreement to try and change a national reform on - - -

A death in custody would have been – a death in custody would be raised with you, you would expect?---Yeah. You – you wouldn’t expect, but you could be informed about a death in custody.


5

10

15

20

25

30

35

40

45

But I’m talking about your expectation. Would you – if a person died in custody, would you expect to be told on it?---No.

You wouldn’t?---No.

And so you wouldn’t be expecting to be told about incidents like – that we’ve seen on those videos?---No, not – no, no. I mean, we were briefed after the gassing incident.

Yes?---In Cabinet, which I think was the right thing to do, but a death in custody is not something that I would normally expect to be told. I could be told, but I wouldn’t expect to be told.

It would become – it would be in the papers and all that, but I mean before it hit the papers - - -?---Well normally - - -

- - - would you like to be?---A lot of those things you learn about because of the instant knowledge of media. You learn about them in media before you learn about them in the office, a lot of those things. Not everything, but a lot of those things, before you can get a hot issues brief or phone call to say this has happened. Quite often the media are aware of it before it happens. I’m not saying that’s a bad thing, I’m just saying that’s how it is.

Look, I know – we know each other, but in government there’s lots of times when we did briefs to Ministers - - -?---Yep.

- - - about incidences in – all around Australia. I’m just finding it curious about what was the expectation, of what level of incident. A death in custody wouldn’t - - -?---I don’t know if there’s an internal rule in Corrections about should the chief be briefed or who should be told. I don’t know the internal machinations.

Again, I’m not saying about that?---Yeah.

I’m saying your expectation to be briefed on a particular thing?---Well, I would be – I was always of an expectation that I should have been given a heads-up on many hot issues, across many portfolios, not just this portfolio, and I was never 100 per cent satisfied with the way I was given urgent information. Some portfolios better than others.

MR O’BRIEN: Thanks, Commissioner.

Just picking up on that line of questioning then, you see, what Minister Elferink said to us yesterday was that he was so shocked by the images that he immediately said to the Children’s Commissioner, “You’ve got to report this to the police.” Minister Elferink was a former police officer, so that’s obviously a level of understanding of how serious he thought these pictures were. Do you understand that?---Yeah.


5

10

15

20

25

30

35

40

45

And you’ve seen those pictures now and you’ve seen, in fact, the footage and you would agree that they show extremely serious, possibly abuse of a young child; correct?---I’m not – I’m not qualified to judge on that, but I was disturbed by those images.

Very well. Do you expect then that you should have told by Minister Elferink when he saw those – when he saw those images to – that you should have been told at that time?---No, no, I don’t and I say that, probably to the disagreement of most people in this room, and that is that I had a high level of confidence in John to do the job. I had a high level of confidence in John being passionate about making reforms in the whole Corrections system. He wanted to drive change. I knew that he inherited some challenges, and I knew that he wanted to make improvements. It’s not – it’s not the best. I knew – I knew that he was working hard and I had a lot of confidence in him managing things in a holistic way.

Looking back at it now, he has got these images, it’s just after the gassing incident. Howard Bath brought them to his attention because he thinks it’s relevant to what happened in the gassing incident. Ought you have been notified around August of 2014 as to what he was shown at that time by the Children’s Commissioner?---I – I don’t – I don’t know.

Very well?---If John – look, in my opinion if Minister Elferink, the Minister at the time thought he had a handle on the situation, thought he could identify the challenges, the issues, refer it to police, whether it was mandatory reporting or otherwise, and took the right approaches to rectify it, whether he should have told me or not – I mean, you would have to be in that situation at the time.

Very well?---I don’t know – I don’t what he was given by his agency, what he could send on. I - - -

Well, what that report also documented - - -?---But we did have the Commissioner come into Cabinet and brief the whole Cabinet as well.

And he didn’t brief you about what these images show? You didn’t know about it at all at that time; correct?---I recall the – the conversation in Cabinet, without deliberating or sharing deliberations, was not to the fullest extent of what I thought it could have been.

The Commissioner was withholding information that he had - - -?---I didn’t - - -

- - - obviously, by that stage that you should have had; correct?---I didn’t say that. But I would have liked to have - - -

That’s the culture of cover-up that you were talking about, isn’t it?---I would have liked to receive more information at that point in time.

Now, what that report also documented was that - - -?---That’s the Bath report?


5

10

15

20

25

30

35

40

45

The Bath report ultimately documented also instances of DCS staff hindering police investigations. You came to learn of that, didn’t you?---Well, I don’t know a lot about that.

Okay. The - - -?---I haven’t read the Bath report.

I want you to assume also that Commissioner Bath’s report also documented failings by DCS staff to comply with the mandatory - - -?---DCF staff?

DCF staff?---Yes.

DCF staff to comply with mandatory reporting of child abuse under Northern Territory legislation. Did you come to be aware of that?---No.

So – and in many respects - - -?---I think there – sorry, just to - - -

- - - when you talk about the – when you talk about the culture of cover-up, it went all the way from the Minister, I suggest to you, down to the staff themselves who were trying to prevent police from investigating and prevent anything from happening within youth detention to the benefit of the children in the system?---I would - - -

Is that what you’re talking about with cultural cover-up?---I’m not talking about it at all. I made reference to culture of cover-up earlier today, but that was particularly around that – the hatchet job where – you know, where everyone was sort of led to believe that those – the footage in Four Corners was a very recent time. I thought – to me that was the culture of cover-up. “Why aren’t I aware of all these things that happened?” I didn’t know they happened in 2010, 2011, that’s what I was referring to then.

You see, Colleen Gwynne became the Commissioner for Children; you understand that?---Yes.

And she did a report in 2015, are you aware of that?---Yes, I’m aware of it.

And you see some of the same – very same issues that Howard Bath was complaining in 2012 about – to DCS staff became the very same focus for Colleen Gwynne in 2015. It’s not just that it happened back in – before you became Government. It happened right throughout. Do you understand and accept that?---Well, what I understand is we took a range of measures to make improvements and if the Colleen Gwynne Report, or the Bath report, or the Vita Review, or any of those reviews provided guidance about how improvements could be made, we were making improvements in a range of areas?

You seem to suggest, Mr Giles, that because you weren’t the Minister it didn’t happen under your watch, but the reports seem to suggest that, in fact, it happened well before your watch and during your watch. Do you accept that?---Well, I accept


5

10

15

20

25

30

35

40

45

full responsibility as Chief Minister for whatever happened when I was the Chief or even before we came into Government. That’s the role of the person at the top. If I didn’t know the information at the time though, it’s very hard to pass judgment on that.

And that’s because you say it was covered up. That’s how you didn’t come to learn?---Well, I referred to the culture of cover-up, again, as what I had seen on the footage on Four Corners which – I was under the assumption that had been filmed in the last six months.

Thanks.

COMMISSIONER WHITE: Thank you, Mr O’Brien. Do you want to ask any more questions before I ask Mr Maley if he wishes to ask his client questions?

MS GRAHAM: I’ve been granted 35 minutes with this witness.

COMMISSIONER WHITE: I thought there was this kind of lack of interest in - - -

MS GRAHAM: Not at all. It’s just that, noticing the time before 1 o’clock, I thought it might be a more convenient way of allotting the advocates if Mr O’Brien went before me.

COMMISSIONER WHITE: Yes. Was shorter.

MS GRAHAM: Because I knew how much time he had.

COMMISSIONER WHITE: Here was I thinking that we were really marching on extraordinarily quickly. Not at all. Well, we would like to – well, if we do that we will take a shorter, perhaps, lunchbreak so that we can finish. Because we have Mr Middlebrook coming back this afternoon as well. Yes. Alright.

MS GRAHAM: I understand that.

COMMISSIONER WHITE: Can people manage with a half hour lunchbreak? The threat, of course, is that there is always tomorrow, and I’m sure that wouldn’t please anybody very much. So we will try and truncate it down in those sorts of times.

So, Mr Giles, just a half hour lunchbreak if you don’t mind. So we will come back at 25 to 2. Thank you.

ADJOURNED [1.06 pm]

RESUMED [1.50 pm]


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Thank you. Sorry to keep you waiting. Thanks, Ms Graham.

<CROSS-EXAMINATION BY MS GRAHAM [1.50 pm]

MS GRAHAM: Mr Giles, my name is Felicity Graham and I appear for the Central Australian Aboriginal Legal Aid Service. Mr Giles, you were the member for Braitling between 2008 and 2016; is that right?---That’s correct.

That electorate covers Alice Springs and the greater area around Alice Springs; is that correct?---Not really the greater area, just part of Alice Springs. About a third.

About a third of Alice Springs. As the local member for Braitling, you would have been concerned to make sure that the citizens in your electorate were not disadvantaged by the way that government resources were allocated. Do you agree with that?---Yeah. There’s always been a good fight between Alice and Darwin.

And you would have been keen to keep yourself informed about any disparities between, for example, Darwin and Alice Springs, and then lobby amongst your government members to bring about equality. Do you agree with that?---That’s correct.

And when you were in the position of Chief Minister that was from early 2013 until you lost government in 2016, you had the overall responsibility to ensure that government money was spent in a way that put all citizens of the Northern Territory on an equal footing. Do you agree with that?---No.

You had overall responsibility to ensure as Chief Minister that where government was providing a service, that it was being provided in a way where all of the citizens of the Northern Territory received an equal quality of service. Do you agree with that?---Well, to the best of their ability. I mean, you can only have one Royal Darwin Hospital in Darwin. You can’t have one of those everywhere. So there’s a different level of amenity for different people around the Territory.

When there’s a greater need in a particular area in the Northern Territory, it’s incumbent on the government of the day, sometimes, to spend more money on those citizens to try to balance the equation. Do you agree with that?---Yeah. A good example is us putting in a new Supreme Court building in Alice.

And so it might cost more money, for example, to appropriately detain a child in Alice Springs than it costs to give the same appropriate level of detention to a child in Darwin, but it’s incumbent on the Government to spend that extra money where there’s the greater need or where it costs more to give that equal effect. Do you agree with that?---I think you have got to be able to provide a service, but there would have to be some serious questions about why it might cost double or triple in

.ROYAL COMMISSION 28.4.17 P-3288 A.G. GILES XXN©Commonwealth of Australia MS GRAHAM

5

10

15

20

25

30

35

40

45

one location compared to another. I think you would have to have a good look at it. You can’t just say it’s – you’re free to have an open cheque book.

Did you see a need during your time as member for Braitling for improvements to the detention conditions in Alice Springs?---I wasn’t particularly lobbied to my recollection on improving the facility. I went to the youth facility there a couple of times.

When did you do that?---I can’t remember. But I went there at the request of staff to go and have a chat to a couple of the inmates and talk to them about opportunities in life and how they might be able to turn things around. I can’t - - -

And is that the Alice Springs Youth Detention Centre that was established in March 2011 on the site of the adult correctional centre?---The one that’s outside the fence.

At the site of the adult correctional centre. Did you ever visit Aranda House?---Not as a youth facility. I didn’t know it was a youth facility. I thought it was a drug and alcohol facility or a dry out centre.

Did you take any interest in knowing about the inadequacies in the Alice Springs youth detention facility?---It wasn’t that I didn’t take or – I did or didn’t take any interest. I wasn’t aware of any such claims.

Well, did you take an interest in knowing about what was going on in your electorate?---Yes. I did.

In the detention centre?---Well, well, well, it wasn’t in my electorate, to make that clear. It was actually outside of Alice Springs in the electorate of McDonald but I wanted to know – I wanted to go out and have a chat at the request of – I think it was one of the community workers at the centre there – come and have a chat to some of the young people. I went out there. Nothing was ever raised to me by the young people in there or staff or management of the inadequacies of that facility, to my recollection.

Did you actually go inside the facility?---And I have had meetings with – yes. And I have had meetings with CAALAS, and I don’t think CAALAS have ever told me that they’re unhappy with the facilities either, to my recollection. And I was pretty active as a local member in Alice Springs with a lot of organisations, institutions, individuals, and I cannot remember CAALAS ever saying to me they’re unhappy with the facilities in Alice.

Alright. Now - - -?---Because as a parochial Alice Springs resident, I would have thought - - -

I have got another question for you, Mr Giles. When you were in government, do you accept now that you oversaw a government where the children from Central


5

10

15

20

25

30

35

40

45

Australia faced inadequate conditions of detention compared to the children in Darwin?---No.

Do you accept that you oversaw a government where the children from Central Australia faced conditions of detention that did not meet the bare minimum standards for the duty of care that your government owed to them?---I don’t know what the bare minimum standards are to be able to provide a measurement against that.

You’re not familiar with the duty of care that your government owed to the children in detention; is that what you’re saying?---Your question was about the bare minimum standards and I’m answering the question of the bare minimum standards. I don’t know what the bare minimum standards are; I’m not sure if there’s a reference guide of what you refer to.

Well, are you saying that you now and during your time as Chief Minister did not know – I withdraw that question. Are you saying that at the time that you were Chief Minister you did not know what standards were expected of the government in relation to their duty of care to children in detention?---I knew what the standards were but you asked me about the facility.

Now, you became aware of some inadequacies in the old Don Dale facility that then precipitated moving to the new Don Dale facility; is that right?---That’s correct.

And one of them related to fire safety but the other main issue that was drawn to your attention was that there were no toilets in any of the cells where the children were ordinarily housed of an evening; is that right?---Well, it was amenity in the cells and also the arrangements for young people to get to the toilets.

When you visited the Alice Springs Youth Detention Centre on a number of occasions, did you go into any of the cells?---I don’t think so. I wasn’t there to do an inspection of the facility, I was there to have a chat to young people. Two different purposes.

It’s a small facility, isn’t it?---I haven’t been in any – many other facilities to judge by its size. I know the Territory’s a small place so I think based on a small jurisdiction of the Territory for a small regional centre it may be right. I don’t know.

When you - - -?---If you’re in Sydney you may have a bigger one in Sydney. I don’t know how that works.

When you walk into the facility, even if you don’t go into a cell, you would be hard pressed not to be looking into a cell through the windows when you walk down the corridor?---Well - - -

You walk past the cells, don’t you?---Well, it’s – I’m not the sort of person who wants to look in and jeer at an inmate through their cell window. I was there being escorted through to the big open room – I’m not sure what it’s called – to have a chat


5

10

15

20

25

30

35

40

45

to a few of the young people there. I’m – in any visit to a place like a prison or a detention facility or a hospital or a school, I don’t make it my role to go and interact with those individuals that might be receiving a service in that government facility. I don’t think people want politicians in their face and I don’t think detainees want politicians in their face when you walk through a cell. So I wouldn’t have looked through the window – on purpose I wouldn’t have looked through a window.

Alright. The fact of the matter is that the Alice Springs Youth Detention Centre to this day does not have toilets or other amenities in the cells. Do you accept that?---I don’t know. I mean, if you’re telling me that’s a fact I will take it as a fact. I don’t know that question.

You didn’t have any awareness of that?---No.

And you didn’t take any interest in knowing that?---No. And if CAALAS had come to me and said that they needed to have a level of amenity of improvement I might have sought to make some changes there.

Well, I suggest to you that there were a number of groups that were lobbying the government for a purpose-built juvenile detention facility, and it wasn’t just NAAJA and CAALAS. It was the official visitor, it was the CAYJ Committee, it was a whole raft of organisations and advocacy groups that were lobbying over a long time the government.

MR MALEY: If my friend seeks to put that material, perhaps the witness could be taken to the precise time and day that this supposed lobbying occurred rather than this general proposition. It’s very difficult for Mr Giles to respond to in the current form.

COMMISSIONER WHITE: Perhaps you can give some kind of time frame during the government in office, or while Mr Giles was the member for Braitling, which - - -

MS GRAHAM: Yes. I will confine it in that way, Commissioner.

During your time in government, so we’re talking from about August 2012 through to 2016, your government was regularly lobbied in relation to the need for a purpose-built youth detention facility in both Alice Springs and Darwin. Do you agree with that or not?---I don’t have any evidence of that. But what I can say is that Alice Springs is different than the broader Darwin area. As a small regional centre, a lot of people know each other a whole lot more. And the open access regime I used to operate in my office: people would come and see me all the time about anything. Whether they were the local mayor or a constituent talking about a public housing matter, or an organisation who wanted to lobby me. Now, I opened the door to anybody outside of my electorate in Central Australia. I cannot recall CAALAS ever coming and talking to me, and I would have opened the door because I knew a lot of people that worked at CAALAS and I would have listened to that. I was a parochial Alice Springs resident, I got criticised for spending too much money in the centre on


5

10

15

20

25

30

35

40

45

a range of areas including the Supreme Court building plus everything else and if – if it was – if it was on my radar that there wasn’t a toilet in a cell and it needed to be upgraded, I would have fought for change.

I suggest to you that because Alice Springs is such a small place, that is unbelievable that you didn’t know that there were inadequate facilities in Alice Springs for youth detention?---Look, I’m not being smart here but you can suggest all you like. I would have thought CAALAS would have come to me as a local member and said, “Adam, can you help me?” Particularly as a Shadow Aboriginal Affairs Minister. So there’s a responsibility on many different levels here. I went in there. I didn’t look in people’s cells. I was giving the kids some guidance, trying to help them out, as many other people did as they went through the prison. If there needed to be an upgrade of facilities, I would have fought for it. No one made a representation to me to do that. It’s not saying I shouldn’t have known about it, but, locally, as it is different down there, I would have more than happily entertained the idea for more reasons than one.

Mr Giles, you accept as a matter of fact that there were no improvements to the infrastructure of the Alice Springs Youth Detention Centre during your term in government, apart from things like fixing a fence or installing a CCTV camera. You accept that, don’t you?---No, I don’t. Because I don’t know what was spent there and what wasn’t. Like, if you through the Corrections budget there will be a line item for repairs and maintenance and minor capital improvements. They’re run on a percentage based on a building asset management framework. Money goes to that facility. I don’t know what was spent there, what wasn’t. I don’t know if there were capital improvements beyond that because I haven’t got a decision in front of me from what money went in there. I understand there was money spent there; I don’t know how much or on what.

If there had been any substantial amount of money spent to improve the Alice Springs Youth Detention Centre you would have known about it. That’s right, isn’t it?---No. It’s a $1.6 billion infrastructure base. I don’t know everything that’s get built in the Territory. Sure I know that Palmerston Hospital is getting built, or they’re building a road at Lee Point and some of the big things, but the things that are smaller, whether it’s putting a new roof on a building, adding additional cells, whatever that may be, I don’t know that level of detail. That’s where the Infrastructure Minister manages that component or the Minister in charge of his individual portfolio that might be engaging the infrastructure department.

Let’s just focus on the Alice Springs facility. As at about let’s say the middle of 2016, are you saying that you didn’t know whether there had been improvements made or not to the infrastructure of the Alice Springs Youth Detention Centre?---I understand there was some minor improvements. Yeah. I don’t know – I can’t recall what they were.

Alright. But you certainly didn’t know enough to say whether any improvements had been to the degree of making the facility far better than it had been


5

10

15

20

25

30

35

40

45

previously?---I don’t know about that facility. I don’t know about the adult facility. I know that we spent money. I don’t know on what. I’m not sure of the question you really want to ask me.

Alright. Could we have exhibit 326 on the screen, please, page 5. This is the interview that you have been taken to earlier, Mr Giles; an interview that you participated in with Katy Wolf. And if I can direct your attention to - - -

COMMISSIONER WHITE: Have you still got your hard copy of that, Mr Giles?---Sorry. I do. Yes.

You might find it easier to use that than waiting for the screen scrolling.

MS GRAHAM: Can I direct your attention to page 5, Mr Giles, and if you look at the paragraph where you say:

He should be applauded for trying to improve the system.

Do you see that paragraph there?---Yes. Yes.

There you’re talking about Mr Elferink and how he should be applauded for trying to improve the system and what you go on to say is:

The infrastructure for the youth detention facilities is far better. We closed one that wasn’t suitable. Labor left it open. We closed it. It wasn’t suitable. And we have got in place more suitable detention facilities.

That was just totally wrong, wasn’t it?---No.

You hadn’t done anything to improve the detention facilities in Alice Springs?---Well, I was on Darwin radio and they were asking me about Darwin facilities. I mean they – I could have answered the question about Nhulunbuy or Datjala work camp or Barkly work camp, but they were asking me about Darwin, so I’m answering about Darwin. If I was doing Sun FM in Alice Springs or ABC 783 Alice or 8HA Alice, I might have asked – talked about Alice Springs facilities. But when I’m in Darwin, I’m talking about Darwin. I think that’s fair and reasonable.

Well, there was only one youth detention facility in Darwin; that’s right, isn’t it?---To the best of my knowledge, plus a former one.

And there was one youth detention facility in Alice Springs as at July 2016; that’s right, isn’t it?---Yeah. Apparently there was Aranda House as well, but yeah, to the best of my knowledge.

So when you said that the infrastructure for the youth detention facilities plural is far better you weren’t just talking about Darwin.


5

10

15

20

25

30

35

40

45

MR MALEY: Commissioners, I object. My friend is being selective with the quotation. The balance of that sentence talks about the facility “… which I went out and inspected yesterday morning”. Clearly Mr Giles is referring to the Darwin facility. He’s in Darwin; he’s talking to Katy Wolf. It’s playing semantics and I object to that question.

COMMISSIONER WHITE: Well, I think that was all read out to Mr Giles, Mr Maley. I didn’t see that it was semantics. I must say it seems perfectly plain what the quotation is. Mr Giles has giving his explanation for it. If you want to press it a bit further, you can, Ms Graham.

MS GRAHAM: I suggest to you that when you went on public radio and suggested to the public that your government was responsible for improving youth detention facilities that that was inaccurate and misleading.

COMMISSIONER WHITE: I think you have given your answer already - - -?---There wasn’t a question, was it?

But you can have another go at it?---You said you were making a suggestion to me. I didn’t know you were posing a question. If you were posing a question, I would say that’s incorrect.

MS GRAHAM: Do you accept, Mr Giles, that you were part of a campaign along with Minister Elferink that demonised young people and labelled them as inherently bad?---No.

Do you accept that you promoted the demonisation of young people to whom you owed a duty of care?---No.

You certainly wanted the voting public to get the message that children that were caught up in the criminal justice system were bad and that justified a wholly tough and punitive approach to them, didn’t you?---No.

Do you accept that a consequence of demonising young people caught up in the criminal justice system has a particularly harmful impact in a small community such as Alice Springs?---Maybe.

You mentioned earlier in answer to Mr Boulten’s question that you weren’t prepared to venture an opinion about – I think it was the harmfulness of naming children in relation to their involvement in criminal proceedings?---No. That’s not correct. I did venture an opinion on that question.

Alright. You referred to needing to be guided by experts about how to approach that issue. Do you agree with that?---I made a reference to experts. I don’t know what the context was a few hours ago.


5

10

15

20

25

30

35

40

45

You’re familiar with the youth justice advisory committee, are you?---No. Is that the Chief Minister’s youth advisory committee?

It’s a committee that prepares annual reports for government about youth justice matters?---Under which agency? And I’m not being belligerent, but I don’t – I mean, there’s a lot of youth advisory committees in different agencies. The Chief Minister used to have a youth committee and they do projects each year and provide reports to government on a range of community matters. I’m not sure if that’s what you’re talking about.

Alright. Alright.

COMMISSIONER WHITE: Are you referring to one set up under the Youth Justice Act, Ms Graham?

MS GRAHAM: Yes. Yes, Commissioner.

THE WITNESS: No. I don’t.

MS GRAHAM: Alright. Up until the time you left government, it remained the case in the Northern Territory that children could be publicly named and identified by photographs in relation to criminal proceedings brought against them; that’s right, isn’t it?---If you say so.

Well, did you know that?---I was of the understanding that they – they could be named and identified for public safety reasons. That was my understanding. I’m happy to be corrected if I’m wrong.

Did you know that the Northern Territory is an outlier in Australia in relation to the naming of young people in relation criminal proceedings brought against them?---No.

Could we have up on the screen, please, tab 12 to the tender bundle of 26 April 2017 which is exhibit 324. This is the list that we have heard evidence from Mr Elferink that he prepared at your request for ideas leading up to the 2016 election, and you can see at the top the heading is Start-up Ideas For Crime Response?---Have you got my request there? I can’t see it on there.

Well, I’m telling you that Mr Elferink has given evidence to this Commission that he prepared this document in response to a request you made of him for ideas leading up to the 2016 election. So you can take that as being the evidence from Mr Elferink. What I want to ask you about is when you look at the content of the ideas that were posed, the list reveals that all of the ideas concerned - - -

MR MALEY: I object. This material has been canvassed and questions asked ad nauseam and my client has been taken through it at some length. And from the lead-


5

10

15

20

25

30

35

40

45

up to the questions my learned friend just asked it’s more of the same. So I object to the question which has been traversed.

COMMISSIONER WHITE: Yes. Thank you. Perhaps not ad nauseam would be the correct descriptor of how it has played out, Mr Maley, but, Ms Graham, you won’t traduce old ground, I hope. You will perhaps confine it to something fresh?

MS GRAHAM: Yes.


MS GRAHAM: I will endeavour to do so.


MS GRAHAM: What I suggest to you, Mr Giles, that this list reveals is that all of the thinking that was going into responding to crime was about punitive measures in response to crime. It was a focus on detection, surveillance, arbitrary police powers and punishment. Do you agree with that?---Well, I haven’t had a chance to go through each individual issue and see the context of how they’re supposed to be implemented. They’re obviously law and order type matters but I’m sure that there’s probably a thousand other lists with other ideas on there too as a brainstorming process. I mean, it’s not – it wasn’t policy. It never reached me. It was just an ideas generator and I’m sure every Minister came up with the same sort of list.

COMMISSIONER WHITE: Well, it’s clear there are at least a couple of there that aren’t of that quality as Mr – I think it was Mr Elferink pointed out, might have – the Hope courts, for example, drug and alcohol rehabilitation program. So they’re not exclusively of that character if you don’t have the time to cast your eyes down all of them, Mr Giles.

MS GRAHAM: With that one exception. Can you point to anything in that list that demonstrates a commitment to addressing the underlying causes of crime or rehabilitation of young people?---Not without spending a lot of time going through and analysing it.

COMMISSIONER WHITE: Perhaps it might – I might ask you this question, Mr Giles. This is said to be Mr Elferink’s response to a request that came no doubt through your chief of staff or someone of that kind, to come up with some selling points for the forthcoming election. The environment would suggest then, because of the nature of these selling points, that it was a particular focus on what we have been broadly calling law and order issues, rather than anything else?---Yeah.

Is that a fair enough observation just looking through this list?---I don’t think so, to be - - -


5

10

15

20

25

30

35

40

45

How would you characterise it then?---It’s just – I haven’t got the request. I don’t know what the request said, but if it was, “Come up with some ideas across all of your policy areas on things we might consider developing a policy on,” this is just a list of ideas. Like very short - - -

Perhaps I was really thinking more along the lines the culture that would suggest that these might be useful and find favour rather than others?---No. I disagree with that completely. Like, a lot of people had different ideas about a lot of different things. I mean, we had some members of Cabinet who wanted to outsource the jails. Now, that never made it either; didn’t even make it on the list. But there’s a whole lot of ideas on there that 99 per cent didn’t go anywhere.

Alright?---So it’s just a brainstorming idea.

MS GRAHAM: The community have a legitimate expectation that government will increase public safety, create a more prosperous and more socially cohesive community. Is that fair to say?---Not really. I – my time in politics would teach me that the people in Braitling would like to be able to walk down the local street and not be called a white C or a black C and not be assaulted or spat on. That’s a pretty – that was always the big thing, particularly in the years between 2008 and 2012. That was a big element, things that came up to us for a law and order perspective. I mean, the north side shops where I worked, to see 20 or 30 people hanging around those shops drunk, spitting, fighting, the amount of times I had to call police. I remember doing a ride-along in a car outside my electorate in Alice Springs in the electorate of Greatorex at the time – it might be Braitling now – and I saw a lady who recently had a tomahawk put through her head in a drunken rage. I mean, the context was that people wanted to feel safer in the community, and not just white people. Everyone in the community wanted to feel safe. And that – and people weren’t feeling safe. So talking about how you can improvement things isn’t just punitive, alcohol rehabilitation, putting police in bottle shops – yes, it’s a law and order measure, but it’s designed to stop people getting more access to alcohol, where they might hurt themselves, their family, their loved ones or their kids by not feeding them or assault. I mean – and I’m just giving examples here. So I don’t agree with your question.

COMMISSIONER WHITE: I thought the question was that people want safer communities, and did you agree with that. And I think the context of your answer would suggest that you do agree with the proposition that that’s what people want?---I think people want safer communities but not the way the question was asked. Yeah.

MS GRAHAM: Well, do you agree that the community has a legitimate expectation that government will make their communities safer? Do you agree that that’s a legitimate expectation of the community?---No. I agree that the expectation of community is that people want to feel safe when they walk down the street, not make – not for government to make it safer. That people will be able to feel safe. If there are problems, yes, they would like government to fix it but what they really want is to be able to feel safe. To be able to send their kids down the local shops at 7 o’clock


5

10

15

20

25

30

35

40

45

at night to be able to buy bread and milk for the next day without having fear that they will be abducted, abused, harassed or otherwise.

Do you accept - - -

COMMISSIONER WHITE: There’s a subtle distinction in your answer?---Yeah.

Thanks, Mr Giles.

MS GRAHAM: Do you accept that the consequences of a law and order or tough on crime policy platform are that you will have more people charged with criminal offences. Do you agree with that?---Not necessarily. Only if they’re caught, I suppose.

Do you agree that you’ll have more people refused bail?---Not necessarily.

Do you agree that you will have more people sentenced to terms of incarceration and for longer periods of time?---No, not necessarily. Depends on how society is reacting, depends what the individuals do themselves if they commit a crime and get arrested. If more people commit crimes, and more people get arrested, more people get sent to jail, obviously there will be more people in jail.

It’s misleading to the public to suggest that you can achieve a good outcome for community safety by widening the criminal justice net and by being tougher and tougher on people caught by that net. Do you agree with that?---No. And the results we had speak for themselves where we were reducing the amount of people who were going through jail, whether through recidivism, through programs such as Sentenced to the Job, reducing the incidences of domestic violence abuse by having police on bottle shops, by having less people get alcohol, but particularly less people get second phase alcohol, the alcohol that comes after 7 o’clock at night when people top up the grog. That was the big concern in Alice, and I know Katherine and Tennant it was a second phase grog that was hurting people. You get topped up and get more.

Mr Giles, in relation to children it is simply not correct that, during your time in Government, the children that were incarcerated in the Northern Territory were incarcerated at a decreasing rate. Do you agree with that?---I don’t know the exact numbers but I think it was about – about even, if you were doing a like for like, but I’m happy to have the numbers presented to me differently. I think it was about 40 places and about 30 to 35 people at any one time, if I’m roughly estimating.

You would be familiar with the fact that the Northern Territory has by far the highest rate of incarceration of children in Australia?---It’s a historical matter that is just applied on the Northern Territory.

And I suggest to you that the data reveals that between 2011/12 and 2015/16 the rate of young people between 10 and 17 years of age that were under juvenile justice


5

10

15

20

25

30

35

40

45

supervision decreased in all of the other States in the country except for Queensland and the Northern Territory. Do you accept that?---I don’t know the data from other States and I don’t know the data in the Territory.

And it’s simply not right for you to assert that in relation to the detention of children in the Northern Territory, that you were reducing the rate during your time in Government?---As I said, I don’t know the exact numbers, but I know the amount of beds that we had in those facilities.

Because the rate of detention of children in the Northern Territory during your time in government increased?---What were the numbers?

Look, I’m not going to take you - - -?---Well, I can’t.

- - - to the specifics now?---Well, I can’t accept that if I don’t know the numbers. You’re asking me to accept that.

Well, you’ve made an assertion to this Commission that you reduced the incarceration rates, and that’s simply not the case, I suggest to you. And you seem to – you actually just don’t know; is that right?---I’m not sure if you’re giving me a statement or a question there.

You actually just don’t know?---I don’t know the – I don’t know the number of people who are incarcerated right now, no, I don’t. I’m quite clear on that.

Now, in relation to Alice Springs, you would know that there’s currently no after-hours youth drop-in centre or facility for young people?---I don’t know what’s operating in Alice Springs right now.

During your time as Member for Braitling, there was a lack of services for children, particularly in relation to a youth drop-in centre and after-hours support for them?---I can’t recall exactly what services were provided, but I know there were always calls for more services.

There was a real need for youth services, particularly to help disengaged youth, do you agree with that?---I certainly think there is a real need for parents to take responsibility of their kids in Central Australia and across the Territory and that was one focus that we had, and that was we wanted parents to better engage their kids. That’s – that’s one of the areas where I think it’s broken in the Northern Territory.

In January of 2014 your Government said, “Look, Alice Springs is completely cleaned up.” And you, in fact, personally said, “Alice Springs is completely cleaned up, it’s changed completely since we came into power, and youth crime is not the issue that it used to be.” Remember making those comments?---No, no I don’t remember making them. You haven’t told me where I made them, where I made, when I made them, and the context of them.


5

10

15

20

25

30

35

40

45

If the witness could be shown - - -?---But I’m happy to accept that I made a commitment that things improve.

The article youth hub – relating to the youth hub Alice Springs being closed in January 2014. I’m not sure of the document identifier number, because it’s only been provided recently. In January 2014, your Government closed the Alice Springs youth hub. Do you recall that?---I remember it getting closed. I don’t remember when.

And in the context of removing that youth hub, defunding it, you made these comments about youth crime not being the issue it used to be and that Alice Springs is completely cleaned up?---Alice Springs improved rapidly. The youth hub wasn’t the only service provided in Central Australia. There are dozens and dozens of youth services. That needs to be in context. It’s not like there were no services. There are stacks of services, but Alice Springs certainly improved rapidly. But over time, I hate to say, that things have deteriorated. I mean, we’re getting back to those days where retailers get locked in Kmart because of youth rioting in the shop. I mean, that’s where things have gone back to.

And I - - -

MR MORRISSEY: Sorry. I just rise to - - -

MS GRAHAM: I’ve got one final proposition to put, and then I will sit down, Mr Morrissey.

MR MORRISSEY: Well, if that’s the case.

COMMISSIONER WHITE: I think Mr Morrissey - - -

MS GRAHAM: I’m sorry. If Mr Morrissey was wanting to tender that document - - -

COMMISSIONER WHITE: - - - probably wants to tender that document.

MS GRAHAM: I’m happy for that.

MR MORRISSEY: Yes. I’m happy to tender that document. I was going to call time but if there’s one question to go, your Honour, it’s a matter for the Commissioners, but - - -

COMMISSIONER WHITE: Yes. Exhibit 327 for the document Government Defends Closure of Youth Centre.

EXHIBIT #327 DOCUMENT ENTITLED GOVERNMENT DEFENDS CLOSURE OF YOUTH CENTRE


5

10

15

20

25

30

35

40

45

MS GRAHAM: Mr Giles, the final proposition is this: that that deterioration in Alice Springs in relation to youth and antisocial behaviour by them, the major contributing factor to that deterioration was because your Government was focused on punitive measures and not on measures that were therapeutic and designed to address the underlying causes of crime?---I 100 per cent disagree with you.

Thank you, Commissioners.

COMMISSIONER WHITE: Ms Graham.

<CROSS-EXAMINATION BY MR O’CONNELL [2.29 pm]

MR O’CONNELL: My name is Stewart O’Connell?--- .....

I represent a child who was formerly in detention. There’s no need for you to know her name. If I could please have tab 87 of the 18 April tender bundle on the screen. You will see, Mr Giles, on the screen there is a report to Cabinet on service provision for youth in the Northern Territory?---Yeah.

Have you seen that report before?---Not to my recollection. Did it come to Cabinet?

Yes. You can’t recall seeing it?---No. I’m trying to work out who presented it and all that sort of stuff.

If I could please - - -?---It might – just because it’s a report to Cabinet doesn’t mean it made its way to Cabinet, and I’m just wondering if it did or not.

Well, look, regardless of that question, I just take to you to (iv), page (iv). Next page, please. This is an executive summary. I just want to quote some of the propositions in this report to you, just to see if you agree with them or not. Right at the very top it says this:

A high proportion of youth in the justice system have mental health conditions, cognitive disability, problematic drug or alcohol use and/or a background of childhood neglect. Best practice principles require that some of these youth should be diverted out of the system and that others be provided with intensive therapeutic –

assuming there’s a word missing there, perhaps treatment or care. Do you agree with that proposition?---Well, I mean, I’m not the author of the report but they’ve analysed young people in the justice system and they believe that. They’ve written a report on at. So I just ..... I take it as the report.

Okay. I’m asking you: do you accept that proposition?---Well, I don’t know every individual who’s incarcerated, so I can’t say they’ve got mental health.

.ROYAL COMMISSION 28.4.17 P-3301 A.G. GILES XXN©Commonwealth of Australia MR O’CONNELL

5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Well, Mr Giles, if you accept that it looks like a relatively carefully put together document – in other words, you can preface your reservations by saying, “accepting that that proposition is made out, that a high proportion of youth”, etcetera, then can you respond to the question that a therapeutic principle diverting them out of the criminal justice system is to be preferred?---Well, sorry, can you just give me the question again.

MR O’CONNELL: Look, I will take a step back. This is a report to Cabinet, okay? Regardless of whether it went to Cabinet or not, would you expect that the people that prepared it had a degree of competence and understanding of the issues?---Yeah, yeah. Who was the author?

I can’t tell you who the author was, because it’s not on this document?---It’s pretty hard to accept that they were competent if I don’t know what the author was.

Well, are you saying then that some reports that came to Cabinet were done by people who you considered incompetent?---I don’t have an opinion on that. But I just want to know – like, you’re asking me how good the report is .....

I’m not – no, I’m not asking you how good the report is. I’m asking you, firstly, would you accept that it’s likely that people that prepared it had a level of competence that you would expect?---Likely.

Yes. And I’m then asking you whether you would agree with the first proposition they put in the beginning of the executive summary, which I’ve already read out to you and I won’t read again. Do you agree with it?---Well, as I said, I can’t agree personally with that paragraph where it says, “A high proportion of youth in the justice system have mental health conditions.” I don’t know that because I haven’t met them all, I haven’t seen an assessment done on each individual.

Okay. Are you saying that - - -?---I know there are many challenges with many youth in the detention centre. I don’t know each individual’s characteristics.

Are you saying that, in your time in Government developing policy, that you would develop your policy based on your own personal observations of each and every incarcerated youth?---No.

Or would you rely on reports given to you by people who are competent and who have properly researched the area?---You would rely on that.

Okay. And would you agree that you could add to the proposition at the beginning of this report that there was also a potentially high proportion of children in detention who were suffering from foetal alcohol spectrum disorder?---I wouldn’t know that without someone writing – someone doing an assessment to determine how many had foetal alcohol spectrum disorder. I wouldn’t just make a generalisation that the majority of kids had foetal alcohol or FASD.


5

10

15

20

25

30

35

40

45

Thank you. I will come back to that issue. Just going a little bit further down that page, in the second paragraph three lines down, you will see it says:

Putting youth in detention is not a medium to long term solution to reducing crime.

Do you agree with that proposition?---Yes.

Do you accept that cognitive disabilities in children, including foetal alcohol spectrum disorder, can result in a greater likelihood that they would commit crime?---No. Just because someone’s got FASD doesn’t mean they’re going to commit a crime.

I didn’t say they were going to. I said it creates a greater likelihood that they would commit crime.

COMMISSIONER WHITE: You might need to ask Mr Giles the extent to which he’s familiar with the indicia of that condition, because it’s a bit difficult. People have different views about what it might mean, but they may be far from correct.

MR O’CONNELL: You’ve heard of foetal alcohol spectrum disorder before?---Yeah.

And you’re aware that essentially what happens is, while the foetus is in utero, it’s exposed to alcohol and it can damage the brain cells; yes?---Yes.

And that can lead to lifelong disability, and some of those disabilities can include an inability to control impulses. Do you agree with that?---I take it – I take it as fact.

An inability to control certain behaviours. Do you agree with that?---Yeah.

And difficulty in following certain rules?---I’m not – I’m not aware of that, but I understand FASD.

Okay. You understand FASD?--- ..... general aspect.

To get back to the question: a young person with FASD, there is a greater likelihood for them than a child without FASD to become involved in crime?---No. I don’t agree with that. I mean, the evidence that you’ve just given me about the make-up of FASD hasn’t given me any genetical make-up of an individual’s likely characteristic to commit a crime. I’ve known many – I’ve known – I’m answering your question. I’ve known many people who have had FASD who have been the most wonderful people have never come in contact with the justice system.

I don’t – please don’t take my questions for a minute as saying anything about the character of these people?---But your question is saying if you’ve got FASD you’re going to commit a crime, and I don’t agree.


5

10

15

20

25

30

35

40

45

Well, the basis of the question is that FASD leads to things like an inability to control impulses?---Well, that might be right. It doesn’t mean they’re going to commit a crime.

Well, I didn’t. I said “greater likelihood”?---Well, I - - -

I will move on.

COMMISSIONER WHITE: I think that would be a good idea. At this high level I think you should focus on the questions that concern you about your client.

MR O’CONNELL: Well, this does concern - - -

COMMISSIONER WHITE: I know you’re setting the scene, but it’s not going anywhere. The time’s running away.

MR O’CONNELL: If I could please turn to (vii), you will see under option 2.3 the paragraph it says:

There is a clearly identified need within the NT for improvement in the provision of mental health services targeting youth. Investment needs to be made into the current gap that exists in youth focussed psychosocial and psychotherapeutic services across the NT. Mental health services can guide and advise the Courts and Departments to assist with early assessment and intervention. Youth specific forensic mental health service can ensure those with major health challenges are dealt with appropriately and individual needs met whether in detention, out-of-home care, or in the community.

Do you accept that proposition?---In general, yes.

And I move on to (ix), two pages over under 4.2, partway through the first paragraph, it says:

Throughout the project it was identified that specialist areas lack expert knowledge and the adequate specialist training to work effectively with youth. Mental health was an area that was identified as requiring a significant increase in professional staff numbers.

Do you accept that proposition?---Yeah, I think that’s an issue right across Australia.

I move to page 25. You will see under the heading there Mental Health Therapeutic Options it says:

In fiscally constrained environments, with rates of youth detention and children being taken into care increasing, Government cannot continue to invest in measures that do not work and do not reduce the flow of youth entering one or both systems.


5

10

15

20

25

30

35

40

45

Do you agree with that proposition?---In – in general.

And then the next paragraph, the - - -

COMMISSIONER WHITE: Don’t - - -

MR O’CONNELL: - - - current funding proposal - - -

COMMISSIONER WHITE: Mr O’Connell, don’t read it all out. People can read it faster than you can read - - -

MR O’CONNELL: Certainly, your Honour.

Well, just if you could read the second paragraph?---Is DOH, Department of Health or Department of Housing.

It’s Department of Health.

COMMISSIONER WHITE: You would think it meant the Department of Health in context, wouldn’t you, Mr Giles?---Well, I – there’s – if you’re talking about accommodation for mental health services, I just wasn’t sure.

MR O’CONNELL: Yes. Please just read that paragraph. Have you read that?---Not yet. Yes. I’ve read that.

Now, would you agree that that paragraph is correct and that investment was needed?---Yes. You won’t get any disagreement about me wanting to put investment in mental health services.

Okay?---I support it. We created a Mental Health Minister. We started putting money into it. There needs to be a lot more.

Okay. Now, this report gave a number of recommendations, if I said to you that none of those recommendations were implemented would you be able to disagree with that?---Well, that’s the date of the report? When did it go to Cabinet?

The date of the report is June 2015?---When did it go to Cabinet?

I can’t tell you that?---Well, I don’t know what’s been implemented and what hasn’t been and, for the purposes of understanding how this would work, if it went to Cabinet and Cabinet said, “Yes, we want to adopt something.” We would say, to the Department of Health in this instance, “Go back and write us a proposal for the budget.” It would go in the budget to be announced. So I’m not sure of the timing or the machinations about what exactly happened with this report.

Are you aware of a Legislative Assembly report of 2015 about FASD titled the Preventable Disability?---Was that a committee report or - - -


5

10

15

20

25

30

35

40

45

It was?--- - - - a departmental report?

It was a committee report?---I remember there was a committee on it, yeah.

So do you remember the report?---I don’t remember the report, but I remember there was a report being done. I don’t remember the report itself.

Do you remember – I know – you remember there was a committee. Do you remember coming out of that committee – just a couple of things, firstly that there was likely a high rate of FASD in the Northern Territory?---Yes.

That there was – again they reported in their report a link between FASD and crime?---No, I don’t remember that.

COMMISSIONER WHITE: As I understand it, the same issues about privilege do relate to Legislative Assembly committee reports as well. I don’t see there’s any danger in just identifying aspects of the report at all, but you don’t want to – I take it you don’t want to contradict it or deal with it in any particular way, do you?

MR O’CONNELL: No, I don’t want to contradict it at all.

COMMISSIONER WHITE: Can you sort of keep moving on a bit more briskly.

MR O’CONNELL: Yes. Could I please have tab 137 of the - - -

COMMISSIONER WHITE: You want that tendered, if it it’s not already in, Mr Morrissey?

MR MORRISSEY: We had the intention of tendering a large number of things at the end of the day rather than disrupting, but we - - -

COMMISSIONER WHITE: Right. Thank you. We will do this one because it’s here in the - - -

MR MORRISSEY: I will tender that.

COMMISSIONER WHITE: Yes. Exhibit 311.087. Thank you.

EXHIBIT #311.087 LEGISLATIVE ASSEMBLY REPORT TITLED THE PREVENTABLE DISABILITY

MR O’CONNELL: Just quickly, Mr Giles, in relation to that report from that committee on FASD, they gave a number of recommendations. Are you aware as to whether any of those recommendations were implemented?---No. I can’t remember


5

10

15

20

25

30

35

40

45

what the recommendations were, and I can’t recall if any – well, I’m not aware if any or all or either have been implemented.

So could I please get tab 137 up on the screen. You will see that’s a – it says:

2016 incoming Minister brief: issue implementation of the Vita Report recommendations.

If I go to page 5, if you just have a quick read of the first paragraph starting, “The establishment of a youth forensic mental health service.” Please let me know when you’ve read that?---Yeah, I’ve read that.

You will see then under the final proposed budget, down in the next dot point, 2.543 million to establish the youth forensic mental health service. You see that?---Yes.

And then you see the last dot point it says, “The submission and request for funding was not approved?---Yep.

Do you recall that particular submission?---No. I don’t recall it going to budget.

And are you able to shed any light as to why it was not approved?---I don’t recall it going to budget but if it wasn’t approved Cabinet didn’t support it.

So – and you don’t know why Cabinet didn’t support it?

MR MORRISSEY: Well - - -

COMMISSIONER WHITE: You can’t really reveal those things to - - -

THE WITNESS: I can’t even remember it going to Cabinet.

COMMISSIONER WHITE: - - - us mere mortals, Mr O’Connell.

MR O’CONNELL: Yes. See, these conclusions that I’ve – these propositions that I put to you in that report and the recommendations in that report to Cabinet and in the FASD report, these aren’t things that are just plucked out of thin air. These are based on research and evidence; you would accept that?---Well, I’d hope so.

Yet it seems that at around the same time – you said that you support mental health and you would do everything you can to make sure that was supported. It seems around the same time as Cabinet disallowed a submission for 2.543 million, that you were able to find $3 million for drag-racing in Alice Springs; you accept that?---If that’s what we approved. How many other things did we approve for mental health as well, though?


5

10

15

20

25

30

35

40

45

And then you - - -?---You can’t just rule one out in isolation and not accept the fact that we approved a whole lot more, created a mental health ministry and put money into mental health. I don’t think you can just take that in isolation.

See, the thing is, Mr Giles – and I have to finish up now – is it’s well and good to talk about those creating a mental health ministry. Here we’re talking about an establishment of a mental health service to provide a dedicated and specialised service to young people in detention. And here you are admitting that, “Well, we couldn’t find money for that, but we could find money for the Alice Springs drags.” And while people were burning rubber in Alice Springs, my client was in detention threatening to take her own life.

MR MORRISSEY: I’m sorry, I really do have to object to that one.

MR O’CONNELL: Nothing further.

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

<CROSS-EXAMINATION BY MS LEE [2.47 pm]

MS LEE: May it please the Commission.

Sir, my name is Tamzin Lee, I represent a number of young people. You said earlier in your evidence that the driving force that got you into politics in the Territory was Aboriginal affairs. And, sorry, if you could just answer verbally?---Yes.

And that’s because of your background of living in Alice Springs, you had an understanding about some of those issues that were contributing to Aboriginal disadvantage in the Territory?---Well, I’ve been Aboriginal all my life and Aboriginal affairs is something that has always been passionate to me, wherever I’ve lived and whatever I’ve done, and I was never interested in getting involved in politics in the Northern Territory, but the perilous state of the welfare system led me to want to get in to try and do something about it, particularly to support those kids who are missing out.

So when you say the welfare system you’re talking about the care and protection system?---No. I’m talking about welfare in general across a range of paradigms.

So health, education, as well as employment for their parents?---Well, employment, organisational welfare – not welfare from a health and education perspective, but pretty much from economic development perspective.

You agree with me that welfare from an economic perspective plays into those other areas of health, education, the high level of incarceration?---Absolutely. It’s a life cycle.

.ROYAL COMMISSION 28.4.17 P-3308 A.G. GILES XXN©Commonwealth of Australia MS LEE

5

10

15

20

25

30

35

40

45

And those were the types of things that you hoped to change during your term as Chief Minister?---Yeah.

You became Chief Minister in March 2013 and you’ve said in your earlier evidence today about the high expectations that you had of Ministers in your Government. You’ve nodded again, I’m sorry?---Yes. Yes. Sorry about that.

That’s okay. Now, that was illustrated in answer to a question from Commissioner Gooda when you said that while you expected to be – while you would expect to be given a heads up, you wouldn’t expect to be briefed across all matters because that was a matter for the Minister: the Minister in charge of that area should be across those areas and those matters should rest with them?---And different Ministers operated at different levels in different ways.

And we’ve heard you say that you had a high level of trust and confidence in Mr Elferink?---Yeah.

And his – he was Minister during the tenure of your – when you were Chief Minister –of Corrections, Attorney-General. Nodding?---Health, Child protection.

Child protection?---Health.

Did – and those are some of those really key ministries that we – that we’ve spoken about cover those areas of disadvantage that you were talking about earlier?---Well, a lot of them cover a child protection or health paradigm.

Now, sir, you’ve said that you yourself also had responsibility for some portfolios during the time that you were Chief Minister. I think you said in answer to a question of Ms Graham’s that you would have expected people in Central Australia to come to you, not only because you were their local member, but also because you were the Aboriginal Affairs Minister?---Well, ours is a bit different, as I’m sure you expect, in that everyone talks to everybody and I always probably had a pretty high profile in Alice Springs and a lot of people come to me with a lot of issues, out of electorate, all the time.

Yes?---Yeah.

But specifically with respect to the expectation and responsibilities of a Minister within your Cabinet, if there were particular issues that came – that fell within those portfolios you would expect that Minister to be across them and that Minister to answer those types of inquiries?---In their own portfolio?

Yes?---Yeah.

So with respect to Aboriginal affairs, and that was a ministerial that you took over on 11 February 2015, you were the Minister responsible for those issues?---Indigenous Affairs, yeah.


5

10

15

20

25

30

35

40

45

Sir, you’ve given evidence today that you didn’t read the Colleen Gwynne Report of August 2015?---Yeah.

You agree that that report was delivered during the time that you were Aboriginal affairs Minister?---I don’t know the timing of that, and when I started the portfolio, so I will let you make that decision.

If I tell you that you took over the – well, in fact, that you recreated the Aboriginal affairs ministry on 11 February 2015, would that sound about right to you?---I have no guidance on that. I will take it from what you say.

So if you take it from what I’m saying then, I’m saying that as of February that was your – that was your portfolio?---Yep.

As of August, you have a report from the Children’s Commissioner speaking about the way in which a number of indigenous young men have been treated whilst they’ve been incarcerated, yet you didn’t read that report?---Was it just an Aboriginal report or was it a youth report?

It was a report with respect to six Aboriginal young men who had been held in the BMU during a period from 2 August to 21 August?---It’s interesting about the Aboriginal affairs portfolio, because it generally doesn’t cover a lot of portfolio matters. Aboriginal affairs is a portfolio that crosses over, in the normal context, a lot of other portfolios. So housing will look after housing, but there will be housing that’s delivered to Aboriginal people. Health will still provide health and hospital and primary and environmental services, but it’s provided out of health. Corrections might provide to the majority of Aboriginal inmates, but it’s still Corrections. So I see your point. You’re saying, “Well, if you’re looking after countrymen, why don’t you read a report on countrymen?” Well, it wasn’t a report on Aboriginal kids, I don’t think. It was a report taken under the purview of either the Corrections Department or the Children’s Commissioner, which comes under the responsibility of Mr Elferink. So, for those reasons, it wouldn’t come to me. But if I had Commissioned a report on Aboriginal affairs issues that came to me, well, then I had read the report.

So my question then, if you’ve said that all of these things come under other portfolios but generally, obviously, if something is impacting on Aboriginal people more specifically, then that would come to you; Is that what your evidence is?---No, no, and I find that to be a very racist approach. This has always been a challenge in politics in Australia: give an Aboriginal person an Aboriginal portfolio, and they’re supposed to fix the health, housing, education, mental health, incarceration, roads, bridges, everything, and that puts those poor – poor, you know, I don’t mean poor as in wealthy poor, but that puts those people in a poor – in a difficult position because they can’t be across everything. They’re trying to drive change from an indigenous perspective and drive policy change. They can’t be in charge of everything, and to do that pigeonholes people in a racial manner.


5

10

15

20

25

30

35

40

45

But certainly you took responsibility for that area because, as the Chief Minister of this Territory, you felt that it was your obligation, given what you’ve said as to be the driving force and the reason that you got into politics, to be across those areas?---That’s right.

So then is it that same desire to be across those areas, those areas that most affected the Aboriginal people of the Northern Territory, that led to you dismantling the Indigenous Advantage ministry in 2013 when you first became the Chief Minister of this State?---I don’t know if that’s what it was called, but the reason that we got rid of the portfolio in the first place was because I wanted to drive a Government where all Ministers took responsibility for Aboriginal affairs, not just the black one, being me. I wanted to make sure that everyone had accountability for Aboriginal affairs, right across their portfolio, and I saw that some of those things were starting to drop, so I reinstated the portfolio.

So in your evidence those things started to drop between March of 2013, when that Indigenous Advancement ministry was scrapped, and you thought there needed to be a bigger focus so on 11 February 2015 that’s when you recreated the portfolio?---Yeah, going by the date you said.

And the incidents covered in Ms Gwynne’s report occurred on 21 August 2014?---If you say.

Thank you. Nothing further.

COMMISSIONER WHITE: Thank you, Ms Lee. Who is going first between Mr Maley or yourself, Mr Morrissey, to tidy up? Do you have any .....

<RE-EXAMINATION BY MR MORRISSEY [2.56 pm]

MR MORRISSEY: Not really to tidy up, but there’s just a document that may assist in respect to the Gwynne Report. Can we have tab 82 of the tender bundle of 18 April on the screen here. So if you just have a look at this here, do you see that this is a – if we scroll to the next page you will see it’s a letter under the hand of John Coleman, 24 April 2014. Who was John Coleman?---Well, John Coleman ended up being the CEO of the Department of Chief Minister, but I’m not sure if he was then. He may have been acting in that role.

Okay?---But he did – ended up – at the end of government he was the CEO. There was a gentleman before him, who left, but I’m not sure of the timing.

That’s okay. Anyway, it may be – you’re familiar with who he is. If we just go back to the first page again, just quickly note that the reference here is – I refer to – you will see the first paragraph refers to the reasons, or some reasons raised at a coordination committee the previous day relating to the matters listed above, namely

.ROYAL COMMISSION 28.4.17 P-3311 A.G. GILES RXN©Commonwealth of Australia MR MORRISSEY

5

10

15

20

25

30

35

40

45

youth policy, practice and initiatives to combat antisocial and criminal behaviour, you see that?---Yeah.

And you see below that in the fourth paragraph you see:

To assist Government’s deliberation, the Chief Minister has asked that Ms Colleen Gwynne, currently acting Children’s Commissioner, with preparing a report on the matters set out above.

And it’s spells that out. And it goes on to say that:

Ms Gwynne’s report will provide the basis of a submission to Cabinet, and the Chief Minister has requested the report be completed within a month.

Now, is that the letter in effect announcing the commissioning of the report on your behalf?---I’m not sure. This is an internal Government brief. I don’t know the answer to that question. I mean maybe it was, maybe it wasn’t. It was between the CEO and other CEOs going by the to and from people in this report.

Alright. So what you’re saying is you can’t – you don’t recall this particular?---Well, I would never have seen this.

No?---It definitely wouldn’t have come to me.

But does it accurately describe what happened or is it - - -?---I – I can’t recall. I think – I think the – I mean, if I had a guess what this was about - - -

Sorry, I will stop you there. If you’re being projected into the realms of guessing I just – won’t ask you to proceed. I will simply tender the document.


MR MORRISSEY: That’s the only question I had.

COMMISSIONER WHITE: Yes. Thank you. That’s exhibit 311.082. Thank you. Now, Mr Maley.

EXHIBIT #311.082 LETTER FROM JOHN COLEMAN CONCERNING COLLEEN GWYNNE REPORT

MR MALEY: Nothing arising, Commissioners. Thank you for that.


.ROYAL COMMISSION 28.4.17 P-3312 A.G. GILES RXN©Commonwealth of Australia MR MORRISSEY

5

10

15

20

25

30

35

40

45

MR MORRISSEY: In light of that, may Mr Giles be excluded and – excused and thanks – thanked for attending.

COMMISSIONER WHITE: Yes. Thank you, Mr Morrissey.

You’re finished Mr Giles. You’re released from your summons; you don’t need to appear further?---Thank you.

Thank you for your attendance at the Commission?---Thank you.

<THE WITNESS WITHDREW [2.59 pm]

MR MALEY: May I also be excused?

COMMISSIONER WHITE: Of course. Your client’s going; you might as well go too.

MR MALEY: Thank you.

MR MORRISSEY: I’m about to recall Mr Middlebrook. Commissioners, I believe the witness is on his way. I recall Mr Middlebrook.

<KENNETH MIDDLEBROOK, ON FORMER OATH [3.01 pm]

COMMISSIONER WHITE: Yes. Thank you. Thank you, Mr Middlebrook?---Commissioner, am I still under oath? Do I have to do it - - -

COMMISSIONER WHITE: You’re under your previous oath, yes?---Thank you.

Thank you. And I think you’re safe with that cup and water?---Yes. I noticed that Commissioner, thank you very much. I had a bit of a difficulty just drinking out of the bottle like that. It’s alright in the bush but I think – when people can see you I don’t think it’s very dignified.

I can’t stand it. It quite often dribbles out. Thanks, Ms Hanscombe.

<CROSS-EXAMINATION BY DR HANSCOMBE [3.02 pm]

DR HANSCOMBE: The Commission please. Mr Middlebrook my name’s Hanscombe. I’m here for a man named Jared Sharp?---Yes.

.ROYAL COMMISSION 28.4.17 P-3313 K. MIDDLEBROOK XXN©Commonwealth of Australia DR HANSCOMBE

5

10

15

20

25

30

35

40

45

You know who Jared Sharp is?---Yes, I do.

He used to be at NAAJA, didn’t he?---Sorry?

He used to be at NAAJA?---Yes, that’s correct.

I think it’s fair to say that you’ve got a fairly negative view of Mr Sharp; is that right?---I think our relationship was strained.

And it was strained for quite a long time, wasn’t it? It began back in mid-2014?---I think – I think it began about the time that we started to brief the non-government sector, including NAAJA and CAALAS, about utilising the old Berrimah to replace Don Dale.

Yes. Indeed, when the Government announced that Berrimah would be used as the new youth detention site NAAJA subsequently made a media release and Mr Sharp quoted you, Commissioner Middlebrook as you then were, as saying, “Berrimah’s only fit for the bulldozer.”

Do you remember that?---Yes. I remember making that statement, and I certainly remember thinking at the time that that statement was going to come back and bite me on quite a few occasions, but you need to get that statement into context.

And you were not well pleased that you had been quoted as saying that, were you?---No. That had nothing to do with any relationship with Mr Sharp. I mean, the fact that people were quoting my previous statement at a coronial inquest of saying that Berrimah was only fit for a bulldozer, I fully expected that. But again, the quote that I made was at a coronial inquest, and it was in response to a question on how I was going to stop future deaths in C Block in Berrimah and I said at the time the only way that I could prevent that would be with the front end of a bulldozer.

So you think Mr Sharp misquoted you, do you?---I think he selectively used the quote. But it wasn’t just the quote about – the bulldozer quote. I mean, there was a range of things that he was critical of Berrimah without coming to have a look, or looking at the planning that we had to utilise that facility.

Well, indeed, some months later in 2015 he participated in a tour of Berrimah; is that right?---That’s correct. But there was a lot of comments and statements made before that visit took place.

Right. So already you had a pretty negative view by then, by the time of the tour?---There was some strained relationships by that time, yes.

Yes. And indeed you criticised him for speaking out in the media following that tour; did you not?---It was more than speaking out in the media. Mr – Mr Sharp had made a number of comments at forums, despite NAAJA CEO giving an assurance to


5

10

15

20

25

30

35

40

45

me that the presentations of Mr Sharp would be making – the Department would receive copies of those presentations and they were never forthcoming.

And you attribute that to an action of Mr Sharp, do you?---He contributed to that, yes.

I see. That’s an inference that you drew?---I think it was fact. There was comments being made at forums, and presentations being made, and we had been assured that we would get copies much those presentations and we never received those.

Well, you’ve now just slipped that the passive voice. You originally said Ms Collins had given you those assurances.

MR TIPPETT: I object to this – I object to this line of questioning.

COMMISSIONER WHITE: Why is that Mr Tippett?

MR TIPPETT: Well, the relevance of it, really, to the work of the Commission. I mean some dealings as between two people: so what? One held one view, one held another view. Is the Commission going to be asked to determine these views? To – and in terms of underscoring a recommendation, are these views going to be referred to in some way or other? In my submission: not. It’s just an exercise engaged at an attempt to try to sort out what was, as Mr Middlebrook said, a matter of – of a loss of trust in the relationship. That’s all.

COMMISSIONER WHITE: Thank you, Mr Tippett.

MR MORRISSEY: May I indicate that from Counsel Assisting’s point of view we view it as capable of having some relevance as long as it’s kept within limits going to the relationships of institutions which in turn might have a part to play. So long as it’s kept within the proposal.

COMMISSIONER WHITE: Thank you. I think, Ms Hanscombe, you’re well aware that we’re not particularly interested in those issues that have been raised by Mr Tippett, but we are interested in the organisation of NAAJA, and its role in the Northern Territory and Mr Middlebrook as the Commissioner, and if the relationship broke down then it may have some consequences.

DR HANSCOMBE: Well, we put it on both that basis and also on a particular basis, namely: this witness chose in his witness statements to annexe a letter, which is a very, very serious attack on the professional reputation of Mr Sharp and this witness, having chosen to put that material before the Commission, in my submission Mr Sharp is entitled to have his reputation defended.

COMMISSIONER WHITE: You’re entitled to challenge it, to – not up hill and down dale.


5

10

15

20

25

30

35

40

45

DR HANSCOMBE: I accept that.

COMMISSIONER WHITE: Yes.

DR HANSCOMBE: I accept that.

COMMISSIONER WHITE: Thank you. Continue.

THE WITNESS: I can ask a question, Commissioner. The letter you’re referring to. Is that the email that I sent to Ms Collins in, I think, September 2015.

DR HANSCOMBE: Mr Middlebrook we will get on quicker if I ask the questions and you answer them?---I’m happy with that.

I beg your pardon?---I’m happy with that.

Good. Now, in March 2015 you went on a tour of Don Dale with Senator Nova Peris, do you remember that?---Yes, I do remember that.

And Mr Sharp was there?---He could have been. I’m not too sure.

Well - - -?---I take it ..... was there.

..... being there?---Yep.

And you referred to Senator Peris as one of Mr – I take that back. You referred to one of Mr Sharp’s clients to, Senator Peris, as, “That hoodlum.” Do you remember that?---I mightn’t have said, “That hoodlum”, but if I used the word “hoodlum” I was probably referring to somebody that caused quite a few problems in the place. And if I called someone a hoodlum, that’s what I believed they were at the time.

So it’s not – it’s a word that you accept you may well have used about a child in youth detention?---I may have used that word, but it would have been – it would have been in respect – it’s not something that I would normally go round calling the kids there hoodlums, but if somebody had been involved in a number of issues and had quite a track record, I might have referred to him as a hoodlum, yes.

So it’s a description you accept you would be prepared to a child in youth detention - - -

MR TIPPETT: I object to that.

DR HANSCOMBE: - - - according to – I wonder if I might finish before you object.

According to your perception of their offences?---I would say according to my belief of their general behaviour. And I – you know, if I used the word hoodlum – and I


5

10

15

20

25

30

35

40

45

don’t actually recall using the word hoodlum, by the way, but if I did I would expect if somebody was offended by that at that time, why wasn’t it raised at that point?

You don’t deny using it. You essentially say you can’t recall it?---All I’m saying is if I used the word hoodlum it would have been in a context. It’s not something I would have normally walked around with an Australian Government Senator using the word hoodlum but, if I used it, it would have been within a context. I’m not saying I didn’t say it. I don’t recall saying it but I find it difficult to accept, given my experience and the time that I’ve spent with people like government officials, to just use the word hoodlum unless it was in some point of – some context.

Well, everything one says is in some context?---Yes, but I mean sometimes when you just cherry pick something like that some years later it sounds worse than what it was actually used for at the time. I don’t have any immediate recall, back then, that I referred to somebody as a hoodlum. I remember – I seen it recently in Mr – Mr Sharp’s statement, but I don’t actually recall using it. But I’m saying to you, if I did, it would have been in a context.

Yes. The question that asked you was actually: you don’t deny it?---Well, I can’t deny it, because I can’t say to you – I wouldn’t - - -

Thank you?--- - - - you know, as being under oath I wouldn’t say to you no, I didn’t say that, but it would have been said in the context of some conversation.

Alright. Now, in March of 2015 also, the first meeting of YDRAG occurred. Do you recall that?---Yes.

And NAAJA was deeply involved in YDRAG, wasn’t it?---As was another – a lot of other agencies.

Yes, that’s so. It was a peak body?---Yes.

It was intended to function as an advisory group peak body?---It was my intention. It was – I know I heard evidence from the Minister yesterday but I have to tell you that there’s emails on file that clearly demonstrate that I recommended to Minister Lambley that we do that. And the reason I wanted that was to make sure that the Vita Review, those recommendations were implemented and a properly funded submission was put forward to government so that we could move forward in youth justice.

And Mr Sharp was a representative of NAAJA on YDRAG?---He was, yes.

About three months after its establishment in early June there was a meeting of YDRAG at which you made very public, very clear criticisms of Mr Sharp personally in that meeting and that criticism went for about 15 minutes?---I don’t know about - - -


5

10

15

20

25

30

35

40

45

Do you recall that?---I don’t know about 15 minutes but I certainly did have some criticisms and that related to Mr Sharp doing presentations in Alice Springs. Again with this presentation that we had been assured by NAAJA we would be copied with, and in that presentation I had been informed that Mr Sharp was very critical of the progress that the department was making. In fact, he was making statements like the Department has done nothing with the Vita Review, which was absolutely incorrect.

And you thought it was more appropriate to make a public criticism in the YDRAG meeting and not take it up with Mr Sharp privately?---Well, look, everybody that was working on that YDRAG committee in my opinion needed to hear the fact that one of the members of that committee was openly stating that nothing was happening. And as a committee group I was keen to get those recommendations implemented. I mean, we were coming under you know, scrutiny and criticism and I wanted to make sure that we were moving forward. And having one of the committee members openly stating in public that nothing was happening wasn’t very helpful.

Okay. A week later Mr Sharp reports there’s asbestos at Don Dale and then by 22 June you’re writing to Ms Coon:

I’m a little over NAAJA.

?---No.

And that was – let me finish the question. That was over the provision by NAAJA of legal education to young people; correct?---Yes. But didn’t you try to link that with the asbestos issue?

No. I’m simply putting that chronologically that things went very sour very fast - - -?---And because there was - - -

- - - between you and NAAJA?---There was more than the legal issue in education. And it was more than the issue about asbestos. Now, let me tell you, I have heard evidence here about the alleged asbestos. There is absolutely no way me as a Commissioner would ignore staff or anybody’s concern about asbestos being in the centre and I had well-documented evidence and people that had been to see about the asbestos and that was made available to the people, including Mr Sharp. They knew that those issues had been taken care of but, again, he chose to make that public knowing full well that I had a lot of documentation to say that had been addressed.

You recall the letter that you wrote to Ms Coon. I have got the exhibit number here if you need it:

I’m a little over NAAJA.

We saw it when you gave your evidence?---Yes. And I did write that to her.

Yes?---Can I just state again, though - - -


5

10

15

20

25

30

35

40

45

No. Can you just attend to my questions, please?---Yes. But I think some of your questions need a broader explanation than just a yes or no. The - - -

Do you recall the letter needs a yes or no. You have answered?---No. It was an email. It wasn’t a letter. It was an email. It was very short. It was one or two lines.

Okay. And you then wrote on 24 July to Sally Cohen:

I’m not keen to work with NAAJA –

and again over the legal education issue?---Yes. I wrote that.

Do you need to see that?---Yes. I wrote that. Yes.

You wrote that. And around early September there’s a constant issue being agitated mostly by Mr Sharp on behalf of Dylan Voller going back to school. Do you recall that?---Yes. And he misrepresented and misquoted what the advice that I gave him back. And can I also add to that - - -

Yes. We’re going to go through that in a bit of detail.

MR TIPPETT: .....

COMMISSIONER WHITE: Yes, Mr Tippett. I accept the objection. If I’m assured that you’re actually going to allow Mr Middlebrook - - -

DR HANSCOMBE: I am going to.

COMMISSIONER WHITE: - - - to address that issue more fully then you can keep questioning as you are, Ms Hanscombe.

DR HANSCOMBE: I am indebted to you.


DR HANSCOMBE: I assure you that I will do that - - -


DR HANSCOMBE: - - - and indeed we will now go to the exhibits in particular. Now, for context, Mr Voller had been reclassified from high security down to medium security; correct?---Correct. Yes.

Yes. Could the witness be shown exhibit 309.014.

MR MORRISSEY: An extension of a few minutes for counsel to go through these documents in the order that’s needed.


5

10

15

20

25

30

35

40

45


DR HANSCOMBE: I’m indebted to Counsel Assisting.

THE WITNESS: Yes. I’m aware of this email.

DR HANSCOMBE: Now, that’s from – at the bottom of the screen we see the beginning of the thread on 7 September. That’s from Jared Sharp to Sue Healey. Sue Healey was the principal of Palmerston High School of which Ms Coon’s school was a division; is that?---Yes. My understanding, though, that was Ms Coon was the principal of the Tivendale School.

Yes. And the Tivendale School came under the administrative control of the Palmerston High School?---Yes.

And technically speaking Ms Healey was Ms Coon’s superior?---Yes. That would be true.

Right. Could we scroll, please, up the screen so we can see the text of the earlier email. We might need to go to the second page. And this is the letter that caused you so much anger, isn’t it? This is the letter that says:

I have been advised –

this is the third paragraph on the second page –

by both Commissioner Ken Middlebrook and Superintendent Victor Williams that they have advocated on Dylan’s behalf with Ms Coon for her decision to be revisited but to no avail.

That’s the paragraph that so offended you, is it not?---I think you’re saying, caused me anger was a little bit of an overstatement. I don’t think I was angry. I was disappointed in a couple of things with this. Firstly, given the work and the – the lack of real time that I had during that time, at Mr Sharp’s request I visited Don Dale and I sat in on a meeting with Mr Voller with the Executive Director and with the Director of the centre. Now that meeting went for quite a while where we talked about Mr Voller’s previous behaviour and his future including his – his aspiration to get parole and his aspiration to go back to school. And – and I said to him “What is the problem with school?” He said, “Well, they won’t let me back,” and I gave a commitment that I would go and see the principal and I would talk to the principal about him coming back to school, which I did.

Yes. You did?---Then I followed up with Mr Sharp and I said to him that I spoke to Lisa about it and she – her reasons I supported. It wasn’t just her view; it was also a lot of the teachers that wouldn’t have him back in class, and we struck a compromise. She said, “I will prepare the schoolwork for him to do that. We will prepare that,”


5

10

15

20

25

30

35

40

45

and I thought that was a good compromise and I relayed that back to Mr Sharp. That’s not in this letter.

Well, okay. So that paragraph says:

I have been advised that Middlebrook is advocating for Voller.

?---Sorry. Say that again?

That paragraph I just took to you?---Yes.

I have been advised that you were advocating for Voller.

Now, in fact, you had - - -?---No. No. I didn’t advocate for Voller.

Mr Middlebrook, could I finish the question. It is the case, is it not, that you did in fact advocate for Dylan Voller with Ms Coon?---I mean, that is a deceiving way of putting it. It was – he was playing with some words with that. He made that sound to that lady, to Sue Healey, that both Victor Williams and I wanted Mr Voller back in the classroom. Now, that’s not what we talked about and I said to him – and I spent quite a bit of time getting back to Mr Sharp. It wasn’t a - - -

When was that?---It would have been within – I forget when we had the meeting but I followed up straightaway, straight after the meeting and I would have got back to Mr Sharp within – within a day and told him that.

You say you got back to Mr Sharp and told him that?---I did.

Is that your evidence?---Yes. I did get back to Mr Sharp.

Okay. You’re represented in this Commission by Mr Tippett, are you not?---Yes. I am. I am.

Mr Tippett put, presumably on your instructions, to Ms Coon at transcript 2763.45, quote:

Mr Middlebrook had advocated for Voller to return to school.

?---Well, I didn’t advocate for him to return to school. I asked her what the issues were.

Do you need to see the transcript of the footage?---No. I don’t, because I know the conversation I had with Ms Coon at the time.

Alright?---And I’m very much aware because, you know, it wasn’t just about going to school. We spent quite a bit of time with Mr Voller talking about the sorts of


5

10

15

20

25

30

35

40

45

things that he needed to address if, in fact, he thought he was going to get a chance of getting parole.

That’s as may be. I’m sticking with this issue. Now, Ms Coon responded by numbering the paragraphs of this letter and then responding in a numbered document. Do you recall that. Could the witness be shown 309.016, please?---Yes. I would like to see that.

And you will see here is the numbered response. Now, Mr Sharp’s letter was not numbered but if you need to go back to the previous document, do. I can tell you that the paragraph we were looking at is, in fact, paragraph number 5, and Ms Coon says, number 5, incorrect. And then she sets out what she understands had happened. Can you read that?---Yes. Yeah.

Right. So true it is that you talked to Lisa Coon and true it is that she says to you “I’m not going to do it.” That’s true?---Yes.

Mr Sharp says he has no recollection of you ever saying “I now have changed my mind after talking to Ms Coon” and indeed - - -

MR TIPPETT: I object to the question.

COMMISSIONER WHITE: Just - - -

MR TIPPETT: ..... he foundation, a witness has no recollection. I mean - - -

COMMISSIONER WHITE: Can you just resume your seat, Mr Tippett, for a moment until the question has been concluded so we can see what .....

DR HANSCOMBE: No. It hasn’t.

COMMISSIONER WHITE: No. I would like you to finish the question to see if there is something objectionable about it.

DR HANSCOMBE: If the Commission please. I was trying to lay a foundation on instructions.

Mr Sharp will say he has no recollection of you ever saying I have now changed my mind after talking to Lisa Coon?---I didn’t say it like that.

That’s a foundation for a question?---Right.

You have accused Mr Sharp on the basis of the letter that we have seen of being, quote, blatantly dishonest and of being not fit to be a lawyer and of threatening him with a sanction from the Law Society, serious threats against a professional man, and yet you were copied to that correspondence. How dishonest is that to copy into it?---I was not – I was not copied with this correspondence. I was never – you have a


5

10

15

20

25

30

35

40

45

look. There’s no reference to me being copied. Mr Sharp did not copy me with that email to Sue Healey.

No. But you’re copied later, are you?---How I got it was Lisa Coon sent it to me because Sue Healey sent it to her, and she sent it to me. And the reason she sent it to me was that I had told her back that I had been back to see Mr Sharp. What I told Mr Sharp – I never said I had changed my mind. I said to Mr Sharp, “I spoke to Lisa Coon. Her position is this. Her teachers’ position is this. They have reached a compromise. What they’re prepared to do is prepare schoolwork for Mr Voller and that will be given to him in the block.” That was the position.

Yes. I know about the compromise. Now, when do you say that - - -?---Okay. But that was the compromise.

When do you say that happened?---It happened within a day or so of the original meeting. I’m not sure exactly but it happened very soon thereafter because - - -

Alright?--- - - - I contacted Ms Coon immediately after the meeting I had with Mr Sharp and Mr Voller.

Alright.

MR MORRISSEY: Commissioners, we’re over time here but I’m assured there’s a way of wrapping it up and .....

DR HANSCOMBE: Yes. I have got one more question on this topic and then another topic, which will be confined.

Do you now withdraw the allegation that Mr Sharp is deceitful?---No. I don’t.

You never made a complaint to the Law Society, did you?---No. Because by the time I had finished with Corrections, the information that I had asked my staff at Don Dale to record it never came to light and I didn’t get that chance. But I can tell you that one of my complaints in that email was the fact that we were – I was getting information from two lawyers from NAAJA about Mr Voller. One advocating – Mr Sharp advocating that he go to the adult centre and Mr Rawnsley advocating that he stays at Don Dale and prepare for parole. And I said to Ms Collins, “You need to do something about this. This is two lawyers in your organisation.”

The other thing you accused Mr Sharp of is setting up the ABC to embarrass you at a conference on 21 September when a detainee gave truthful accounts of the bastardisation he had been subjected to?---And I won’t be convinced that those men didn’t know what that young fellow was going to say and I’m not convinced that the ABC weren’t given prior information.


5

10

15

20

25

30

35

40

45

You know Mr Sharp has put in a witness statement to which in due course he will swear that neither he nor anybody else knew what that detainee was going to say?---Well, I don’t – I don’t agree with that.

And you know, don’t you, that that conference was organised by NAAJA, the Northern Territory Council on Social Services, and the Red Cross, and yet you say Mr Sharp set you up?---Mr Sharp was with that young man that day and I’m not convinced he didn’t know what that young man was going to say. And when you think that the trouble the organisers went to to make sure that I was going to be there on the day and as soon as those statements were made an ABC reporter was sitting beside me with a microphone, I’m not convinced I wasn’t set up.

No. And it didn’t occur to you to say to the ABC reporter, “This all looks pretty serious. I will look into this”?---No. I admit – I admitted in evidence last week that – or earlier this week that I could have made a better statement than I did.

COMMISSIONER WHITE: That’s a different issue, though. That’s not an issue that concerns Mr Sharp.

DR HANSCOMBE: If the Commission please. If the Commission please, I have nothing else.

COMMISSIONER WHITE: Yes. Thank you, Ms Hanscombe.

<CROSS-EXAMINATION BY MR LAWRENCE [3.27 pm]

MR LAWRENCE: I’m counsel representing a juvenile that was in Don Dale in 2014. He goes by the appellation AD. I will give you a note which reveals his actual identity?---Yes. Thank you.

Do you recognise AD?---Yes. I do.

Do you remember him?---Yes. I do.

Did you ever meet him?---I think I spoke to him once or twice when I was at Don Dale.

Was that before 21 August?---No. It would have been after. I think I might have seen him at Holtze and – and at – that night at Don Dale.

Right. You would have saw him on 11 August when you took NAAJA through the BMU?---Yes. But I don’t think we spoke to him.

Right. Now, I want to ask you about the events of 21 August when the decision was made to deploy gas?---Yes.

.ROYAL COMMISSION 28.4.17 P-3324 K. MIDDLEBROOK XXN©Commonwealth of Australia MR LAWRENCE

5

10

15

20

25

30

35

40

45

Prior to that, the year before, there was a couple of incidents at Don Dale in August and September where some detainees had broken out of their rooms and got on the roof; remember them?---Into the roof, not on the roof. Into the roof, into the ceiling cavity.

Alright. And there was one in August where I think four detainees did that; correct?---Yes. Well, it was eight. It was four detainees that pulled four females up. There was eight in the roof at one time.

Wasn’t that the September incident?---September 13, I think, yes.

I think you might find that the first incident in August was four?---There were three incidents altogether. There was two at first, and then the second one was – I think you’re right – four males, and then there was the one with the four girls.

Yes. Right. Did you go out to those incidents?---Yes, I did, at various times. I think one of them I may have been out of town and got back as it was coming to a close.

Alright. And those incidents were ultimately resolved peacefully?---Yes.

Without any injury sustained by any person?---Yes.

There was a lot of property damage however created as a consequence of the detainees’ conduct?---Very extensive actually.

Right. And on both occasions staff at Don Dale rang the police to attend both those situations?---Yes. They did.

If for no other reason what was going on was criminal offences; correct?---In what manner?

Well, there’s an attempt, arguably, of unlawful entry and there’s also the crime of criminal damage?---Attempted escape.

Sorry. Attempt to escape lawful custody?---Yes. I agree with that.

And criminal damage?---Yeah.

So when there’s a crime committed you pick up the phone and you ring the police?---Well - - -

COMMISSIONER WHITE: Do you mean Mr Middlebrook, or do you mean the centre manager?

MR LAWRENCE: The centre manager?---Well, in a correctional environment it’s not always the case. I mean, it’s not until they may escape the confines of the centre


5

10

15

20

25

30

35

40

45

that we may recall – may rely on the police. But in those occasions the youth detention staff did rely on the police.

Right. And the police attended and, in fact, it was the negotiation unit from the police force that attended and they got involved in resolving the situation; correct?---I think there was one occasion that police negotiation unit turned up and I think that was the one where I was out of town and it lasted for many, many hours and I think I got there towards the end of it.

Well, the police were on both occasions?---But the negotiating team I think were only on the one case.

And they did what they do, which was negotiate with the kids and talk them down peacefully, ultimately?---The eight kids that were in the ceiling: six came down, I think, fairly quickly. There was two that remained up there for the entire time and I believe they were enticed down with McDonald’s.

Yes. By the police with McDonald’s?---Yes.

So ultimately the police negotiation unit resolved the situation - - -?---Yes.

- - - peacefully without any injury?---Yes.

Thank you. Now you were aware of that - - -?---Yes.

- - - in August 2014?---Absolutely.

When there was an escape from Don Dale by five detainees; right?---Yes.

They were eventually captured and put back into Don Dale and specifically into the BMU?---Yes.

Okay?---Yes.

Now, that involved fairly heavy media interest?---The escape and - - -

Reported - - -?---The escape and the activity while those young people were out certainly resulted in a lot of media activity.

Yes. And you – let’s go to 21 August. It was a Thursday night; remember?---I certainly do.

And you were off duty but you received a phone call from one of the staff from Don Dale; it may have been Caldwell. Would that be right, or - - -?---He rang me direct. Yes.


5

10

15

20

25

30

35

40

45

He rang you direct on your phone?---In fact, he rang me a couple of times because I was at my Rotary meeting.

Right. Thank you. And he told you the situation that had happened in BMU?---Yes.

Which was that a detainee, AD, had got out of his cell?---Well, yes, but he – he said that there was a disturbance and I could hear the noise in the background and I just said, “I’m on my way”.

Right. Well, he must have given you some more detail as to the disturbance?---He was very sketchy. He just said – and I asked whether the young person had breached the immediate area and he said no, and I said, “Right. Well, I’m on my way out.”

Okay. And on the way out there, you made a phone call?---I did.

You didn’t phone the police?---No.

You chose not to phone the police?---No. I didn’t need to bring – I didn’t think to ring the police.

You didn’t think to ring the police but what you did think to ring was the IAT, the specialist trained unit in immediate action response trained to deal with outbursts and incidents in adult prisons; correct?---It had been our procedure to - - -

Is that correct?

MR TIPPETT: I object.

THE WITNESS: Can I just finish the - - -

MR LAWRENCE: I insist. No. No. No. Listen. There’s a guillotine in this room.

COMMISSIONER WHITE: Just stop a moment, both of you, for a minute. Mr Tippett, the question can be answered. There is no need to object to it. It is either yes or no and then there may be a reason why following up. But you can answer that yes or no?---Yes, Commissioner.

Thank you?---Thank you. Yes. I rang the acting superintendent of the Berrimah centre and I asked - - -

MR LAWRENCE: Thank you?---And I asked for the IAT to respond and I asked for a drug – a dug – like, a drug dog and handler to also attend.

Well, not like a drug dog. The specifically trained Alsatian dog that works for the IAT?---It’s a general – general purpose dog.

It’s not a drug dog?---It is a drug dog. It’s general purpose.


5

10

15

20

25

30

35

40

45

Okay, so you have got the IAT and an Alsatian dog and its handler?---A German shepherd and the handler, yes.

Okay. Thank you. And you arrived there about 8 o’clock at night?---Yes. That’s about right. Eight or a little bit after.

Thank you. And as you arrived the dog handler and the dog arrive at the same time?---That’s correct.

And you go into Don Dale and find out what’s going on; okay?---Correct. Yes.

And you get a briefing?---Yes.

Did you bring the police?---No.

You could have rang the police?---I could have. Yes.

What were you briefed as to what had occurred?---I was advised that the young person had breached the security of the cell. At that stage I – they couldn’t tell me how the young person breached the cell, how that happened. What I did notice though was that the area in what they call the – the – I think – I can’t remember, the H Block or M Block, H Block, that’s the main area of Don Dale – the young people in there were kicking doors and I was concerned that we had some real issues about to emerge, and I was briefed that the young people in the cells had damaged light fittings as well as the light switches and I was concerned about the level of risk with exposed wires and things from the points - - -

Well, I asked you what you were briefed?---That’s what I was briefed.

No. No. You’re telling us what you were anxious about?---No. No. Well, I was briefed - - -

You’re not here – this isn’t Hyde Park corner.

MR TIPPETT: I object to this.

MR LAWRENCE: You’re not here on a soapbox. You’re here to answer my questions.

COMMISSIONER WHITE: Mr Lawrence - - -

MR TIPPETT: I object to this comment.

COMMISSIONER WHITE: Yes. Thank you, Mr Tippett. Upheld. There is no cause for haranguing a witness, Mr Lawrence. No cause to do that at all. You can ask for the question to be answered in a civil tone.


5

10

15

20

25

30

35

40

45

MR LAWRENCE: Okay. Well, I do ask that. I asked you - - -?---Okay.

- - - the question. I didn’t ask for your explanation. Mr Tippett will have ample opportunity to ask you as many questions as he wants so that you can explain things. Alright. So just - - -?---Okay, Mr Lawrence. I was briefed about the young person out of the cell. I was briefed they weren’t sure how he breached the cell, and I was briefed that there was damage to light fittings and light switches.

Right. So there was obviously several criminal offences having been committed here?---Well, I never thought of criminal offences. All I realised: that we had a problem on that night.

Right. Would you accept obviously that information given to you reveals criminal offending?---It’s – it’s vandalism, but I wouldn’t go as far as I see that as criminal offending at that stage.

Alright. You didn’t ring the police - - -?---You’re trying to say to me, “Why didn’t I ring the police?” I didn’t ring the police. I had no intentions of ringing the police at that stage.

Right. Well, they could have come out and helped?---They may well have. In fact, I think, from memory, the former police Commissioner was sitting with me at Rotary and offered if I needed police, and I said “I will give you a ring if I need assistance.”

Alright. Now, at this stage where you have been briefed and this is going on, you still owe all those kids in the BMU a duty of care. You would accept that?---Absolutely.

And - - -?---As well as the staff, I would like to add.

Now, you were there for a period of time observing what was going on as well as being briefed?---Yes. I was.

And the situation was, having been briefed, that AD was still out of his cell in the courtyard, still misbehaving?---Yes. He was.

And that involved him throwing things around, shouting, swearing, he was clearly upset?---Yes. And discharging dry powder fire extinguisher that he discharged which was – made it – it looked like a sort of a foggy sort of environment..

Right?---He had a lot of glass shards that he was throwing each time the officers opened the door to talk to him. He was throwing not only glass pieces, but other bits of debris that he had picked up.

Okay. And you have got the AIT and you have got a large number of Youth Justice Officers out there?---Yes.


5

10

15

20

25

30

35

40

45

Ms Cohen - - -?---When you say large number, I don’t recall just how many there, but there were a number of staff there.

Well, Mr Sizeland has given evidence in answer to a question from one of the Commissioners that there was about 15 to 20 staff there?---Yeah. I would say 15 would probably be an accurate account.

Okay. And then he’s – and what you have got is AD out in the courtyard and you have got five other kids in three cells; right?---Yes.

You have got Dylan Voller in one cell on his own?---Yes.

You have got two kids in another cell next to him on their own?---Look, I don’t – I know that that’s about the break-up, but – yeah.

Okay. Thank you. And the cell next to them was, in fact, AD’s cell, so he’s out of there?---Yeah.

And the cell next to him on the other side, there’s two kids in that cell; right?---Yeah.

Now, when you’re in Don Dale you can look at these situations through the CCTV, can’t you?---Yes. But the kids had the cameras covered. They put toilet paper or something on the camera lenses.

Now, that’s not accurate, is it, because the two kids that are in the cell adjacent to the deceased didn’t cover their cameras?---All I know is that I had been told that they were all participating. At that stage I was not able to witness any of the activity in the cells because the – the video systems weren’t showing that. The cameras were inoperable. They weren’t working properly because they had been covered with debris.

No. No. No?---I couldn’t see and I had no idea – at that stage, Mr Lawrence, I believed all of those young people were involved in that disturbance.

Well, you say you believed that. Did you go into the CCTV control room and look at the screens which revealed what was going on?---No. I accepted – I accepted what I was told when I arrived.

Okay?---That I – you know, I mean, talking about it now in this courtroom is a lot different to being there on the night and listening to the noise and the concern I had with the breaching the rest of - - -

Alright. Well, listen, don’t worry about that because we have actually got film and audio of what was going on?---Yes. What, the handy cam?


5

10

15

20

25

30

35

40

45

So we’re not a year away now. We can actually talk about that, and I’m going to question you, okay?

MR TIPPETT: Object. Object.

COMMISSIONER WHITE: Yes. Yes. Just a little calmer thank you, Mr Lawrence.

MR O’MAHONEY: Commissioner, I rise to make a slightly different objection. There’s a problem with this line of questioning generally: the propositions underpinning it really informed a lot of the questions of this same witness in the Supreme Court proceedings and many of which – most of which were rejected and there’s a real problem with where my friend is headed with this, which is to explore really the same line of country and, I presume, invite you Commissioners to make findings that differ the findings that underpin the decision of Kelly J in the Supreme Court.

COMMISSIONER WHITE: Well, we’re conscious of that issue, Mr O’Mahoney. Quite conscious of it.

MR O’MAHONEY: Please the Commission.

MR LAWRENCE: And, indeed so am I, your Honour. I’m aware of the judgment. Obviously, that’s going to be part of the material that will be before the Commissioners. But nevertheless, as your Honours would know – the Commissioners would know, my client wasn’t part of that action, apart from anything else.

MR O’MAHONEY: Unfortunately, this witness was and he really was asked more or less - - -

MR LAWRENCE: Well, he may have.

MR O’MAHONEY: - - - the same questions. The issue does arise quite starkly, in my submission, in relation to this witness. It’s a matter for the Commission, but I rise to raise it.

COMMISSIONER WHITE: Yes, Mr O’Mahoney.

MR MORRISSEY: May I assist here. In my submission, Mr Lawrence should be allowed to proceed with some questions along the current lines. As the Commission has indicated, the lines are quite clear: he wasn’t represented, I also read the judgment. I believe he should be allowed to persist at the moment, focusing of course on the issues of relevance to his client concerning the health of the people, and the status of those in the cells, and so on.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Yes. Thank you. I will allow the questioning, but perhaps Mr Lawrence, you – because everybody knows the build-up and so on, there are some particular propositions I’m sure you want to put to Mr Middlebrook - - -

MR LAWRENCE: Yes.

COMMISSIONER WHITE: - - - about how it was hand.

MR LAWRENCE: That’s right. That’s what I want to ask him about in this cross-examination.

COMMISSIONER WHITE: Yes. Can I invite you to move a little more rapidly to that point - - -

MR LAWRENCE: Yes.

COMMISSIONER WHITE: - - - because I think Mr Middlebrook is on top of all that background, and we certainly are.

MR LAWRENCE: Right. Okay.

Now, when, in fact, did you ring the police?---I never rang the police.

When did your officers ring the police to report what had happened that night?---I think Mr Caldwell might have rang the police at some stage, but I certainly didn’t ring the police.

Alright. Because throughout the entire incident there was no police officer present, was there?---No, but Mr Lawrence, we don’t – as part of that - - -

Thank you for that answer. Mr Tippett can ask you to explain.

MR TIPPETT: ..... going to. The witness is entitled.

COMMISSIONER WHITE: Yes, Mr Tippett, I understand that. The point you want to ask Mr Middlebrook is: because you want the police to be there for their particular skills.

MR LAWRENCE: Indeed.

COMMISSIONER WHITE: Why not ask him?

MR LAWRENCE: And the other point I want the police to be there for is to observe and witness you and your colleagues and how you respond to this situation?---Mr Lawrence, within Corrections we manage our problems. Yes, the police were called at Don Dale on those other instances but, you know, they were a different set of circumstances than was happening on that night.


5

10

15

20

25

30

35

40

45

Alright. So you look after your own, do you? You don’t need the police.

COMMISSIONER WHITE: Mr Lawrence, that was a gratuitous comment. The young people were in a dangerous situation on the previous occasion, so it’s not a proper comment to make.

MR LAWRENCE: Well, okay. I will move on.

You’ve read the Bath Report?---Well, which one?

Sorry, the one that’s dated August 2015 concerning the events in the BMU from 4 August to 21 August?---Is that the one finished by Ms Gwynne?

Yes?---Yes, yes, I did read that.

Thank you. Can that be put on the screen please and specifically page 27 of the same. While that’s happening, if it’s okay, I will continue to question.

COMMISSIONER WHITE: Yes, that’s a good idea. Certainly.

MR LAWRENCE: Before that report was finalised we know that a draft of it was given to you to look at to pass on any comments or issues you wanted to raise; correct?---Yes. That’s right.

And you read it – the draft?---Yes.

And you responded?---My staff responded on my behalf, or I signed off the letter, but my staff – and there was – there was a mistake in the report in that the Children’s Commissioner misquoted Mr Vita in his – in his assessment. Children’s Commissioner claims that Mr Vita agreed it was – that it was unnecessary for the use of gas, but Mr Vita didn’t say that at all.

Alright. Well look, if this report can ever be available, now I’m going to – let’s go to page now, sorry forgive me, but attachment B. Sorry about that. I shouldn’t have asked that question after all. Let’s go to attachment B, because that’s actually your response, and you might be able to clarify that.

COMMISSIONER WHITE: You might need to make that – augment that a little, if you would be so kind.

MR LAWRENCE: It’s the very last page of the report, if that helps. Now, you recognise that?---Yes.

And that talks about, you agree with the recommendations, you’re going to follow them, and then you talk about the Vita Report?---Yes.


5

10

15

20

25

30

35

40

45

And then there is one issue that you seem to take which is in page 29 of the draft in the seventh paragraph, which I don’t think is relevant to my line of questioning, I think it might be to do with - - -

COMMISSIONER WHITE: That’s to do with the - - -

MR LAWRENCE: Mr Voller.

COMMISSIONER WHITE: Mr Tasker.

MR LAWRENCE: Mr Tasker, yes. But that was your response to the draft as far as you were concerned; correct?---Yes.

Now, let’s go to page 27 as I originally requested, and if you just look up there under the heading Inaccurate Information Supplied to Police. Now, can you read that paragraph?---Which one’s that?

Inaccurate Information Supplied to Police. I will read it out for you, Mr - - -

COMMISSIONER WHITE: You can just read it to yourself Mr Middlebrook?---Where’s that paragraph?

Right up at the top, Mr Middlebrook?---Yes – yes – yes.

Just read it to yourself?---Yeah, I’ve got that. Yes. I’m not sure how that come about, but that’s certainly - - -

MR LAWRENCE: I haven’t asked the question?---Okay.

Now, according to that, your Department told the police five detainees had escaped their cells, caused significant damage, and assaulted staff with shards of glass, bricks and steel poles.

MR TIPPETT: I object to that. It’s prefaced on the basis the Department told police. It says during the investigation police stated that a report was made.

COMMISSIONER WHITE: Very well, then. Yes, well founded objection. Perhaps if you could inquire further to make that statement that it was the Department who provided the police with the information, Mr Lawrence.

MR LAWRENCE: Well, did you discover who made that report?---No, we didn’t, and I’m not – I’m not sure whether that was – the only people that would have contacted police would have been Mr Caldwell or Mr Sizeland, and they knew the situation as it stood, and I doubt very much that they would have made that statement to the police. I certainly didn’t, and - - -


5

10

15

20

25

30

35

40

45

You wouldn’t doubt the police receiving that report?---Well, it could have been – it could have been taken or written down in mistake. I’m not sure, Mr Lawrence, but I can tell you I didn’t make that statement. I have never made a statement like that, and I never heard anybody in the department make a statement like that.

COMMISSIONER WHITE: Could it have come from the Corrections team that were called in?---No, Commissioner. The Corrections team that came in, they didn’t – all they did was write their own reports. They didn’t have any contact with the police. That’s – the police contact would have been hand by Mr Caldwell or Mr Sizeland.

Alright. Thank you. That’s the only other source that one can think of. Yes, thank you.

MR LAWRENCE: Did you investigate that, bearing in mind that – you accept the police received this report?---Yes.

And it’s seriously inaccurate as to what happened on 21 August; do you accept that?---Look, I – I don’t recall what the outcome of that, but there was no – there was no written documentation, there were no reports, and I did speak to Mr Caldwell at some stage about this, or Ms – and Ms Cohen but it was unclear and people have no recollection of telling police that information.

Alright. Well, let me ask you this: in your response to the draft report which contained this, why didn’t you write back in relation to it?---And there’s another admission too, that was missed, which I later spoke to Ms Gwynne about, and that was the comment that – about Mr Vita I noticed in that report there, that wasn’t – wasn’t there. It’s true that we missed those things.

Right?---It’s true that I should have checked that, when I signed that letter, and I guess with a lot of the things that were happening about that time, I relied on people to prepare that for me and send it. And the two omissions is that issue and the issue where the Children’s Commissioner, you know, sort of incorrectly quoted Mr Vita.

Okay.

MR MORRISSEY: We’ve reached the time, but I would like to submit that a few extra questions be permitted to Mr Lawrence. He has flagged to us a couple of areas that he wanted to go to concerning questions that perhaps should have been asked about the individuals, although we’ve reached the time allotted. My submission is that it would assist in this line of questioning for him to be allowed a few extra minutes - - -

MR LAWRENCE: Alright. I’m grateful.

MR MORRISSEY: - - - to do that.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Right.

MR LAWRENCE: That’s the only mistakes now, on reflection thoroughly, that were in the draft report?---Yes. I – from memory, I mean, you – remember, Mr Lawrence, this is a couple of years ago and – but they were the two glaringly obvious things that I think were overlooked in our response.

Alright. Now, since the incident we know that there was film footage and we know that there was Handycam, CCTV film footage with audio components?---Yes.

Correct?---Yes.

Have you witnessed all that?---I’ve gone through a lot of it, yes.

And some of it was on Four Corners, so - - -?---Yes.

Alright. Now, my client AD has done a statement and he’s given evidence before these Commissioners as to what he said he did that night and what happened. Have you seen his evidence?---I’m just trying to think. I’ve read that much information, but I’m aware of some of the things – I know that particular young man.

Alright. You can’t remember if you have?---I don’t remember reading his statement, frankly.

Okay. Now, he told the Commission this: that he had been in the back cells for 17 days?---Yes. There’s no contest on that.

Yes. And you agree that that was improper and shouldn’t have happened?---Yes and yes.

Alright. And what we see on the film, and what he said he said he said, was he gets out of the cell, and we know how he got out of the cell: because it was left unlocked?---That’s correct. I know that now.

Although he was partly involved, because he broke a hole in the mesh to get his hand out?---That’s correct.

The actual lock wasn’t locked and he gets out that way?---No. That’s correct. Yes.

He gets out and he says:

I’ve been in the cells for how long, bros? I’ve been fucking stuck in there for how long?

Now, do you remember seeing that on the film?---Look, there was a lot of – yes, I see a lot of things and the – and it was - - -


5

10

15

20

25

30

35

40

45

Alright?---I don’t actually recall that part, but I’ve seen a lot of film.

That was presumably before you got out there, because you see that was – you see that, and hear it, just – almost shortly before he gets out of the cell itself?---Yeah. The situation had been going for some time before I arrived.

Yes. Now, he said that he tried to get out of the courtyard through the window into the storeroom?---Yes.

And he smashed the window?---Yes.

He was going off. We’ve all seen that. It’s not an issue?---Yeah.

He’s throwing things around, he’s shouting, he’s swearing, he’s going bananas, basically, smashing windows?---Before he – and before he did that he smashed his way into the reception room and passed a radio through to another inmate – another detainee.

Yes. Now, we also see in the footage some of your Youth Justice Officers as he’s trying to come through the window saying:

No, let the fucker come through, because when he comes through he will be off-balance. I will pulverise the little fucker.

?---Yes.

You’ve heard that?---Yes.

You see them in there and you hear them saying those words?---Yes, I know.

They were Youth Justice Officers?---Yes.

Did you hear that at the time?---No.

Now, no one says at this stage that AD is armed or he’s threatening at all. He’s just trying to get in the window, and one of your colleagues or one of your staff comes up with this idea about letting him through so he will be off-balance and he will be pulverised; right?---I had no idea of that when I was there.

Well, I suggest to you what we saw and heard from your staff in relation to AD’s situation is entirely consistent with the relationship your staff had with these juveniles that were being held in the BMU?---Some of those staff. I wouldn’t say all those staff. There were some very good staff there.

A relationship of hostility and punity?---Some staff.


5

10

15

20

25

30

35

40

45

I mean, that kind of conduct from a Youth Justice Officer with his duties of care towards a kid is scandalous, you’d agree?---Absolutely.

It’s disgraceful?---Yes.

Did you have an inquiry to find out who did that so that you could get to the bottom of this?---Well, what – what I did do was, on reflection of that night, and on reflection of the incident, that’s what prompted getting the Vita Review.

Right?---That was what brought – I – within days of that incident I realised that during my term as the executive director, then Commissioner, I had made a number of submissions to Government for funding for – to increase the staffing to allow a proper training regime to go in. We had made representations to Government to try and do things about infrastructure. I tried to save money over a period of financial years to do something about the BMU, which I ultimately had to spend on fixing up damage month after month, and I realised what I needed was a hard hitting report to give to government to say “We’re in trouble with this. We need to address it.”

Alright. Well look, what I was asking you was?---I realise - - -

My client and his mother and his nana want to know: who was your guard that wanted their son to fall off-balance, 14 years of age, no shoes, a pair of shorts, and be pulverised by your Youth Justice Officers. Now who was it, did you find out?---I don’t know who it was.

Well, did you try and find out?---No, I didn’t find out who it was.

Well, why didn’t you find out and show them the door, get them out of the system?---Well, you know Mr Lawrence, it’s easy to do that with people, but when you haven’t trained people and you haven’t prepared them well, I think that we had an obligation to fix the entire system, and that’s what I was attempting to do the Vita Report.

Wait a minute. You were trained. You’re trained in systems, so it’s your responsibility to find out who the villain was here. That’s nothing to do with his training, never mind the fact he’s a balloon. You’ve got to find out who he is and discipline him, and you didn’t do it?---No, I didn’t do that.

Well, that’s a failure on your part, isn’t it?---It may well have been. But my - - -

It encourages the systemic abuse that’s been going on with their children for literally years under your care?---That’s – I just object to that, because it’s not systemic abuse for years. I mean, we were responding to a number of behavioural issues over a very short period of time. I mean, from 2013 on, and it’s the same group of hard core people, hard core young individuals that were causing a lot of these problems, and we – we were responding to that. We hadn’t trained our staff well. I mean, I had attempted to get funding from Government to fix that and my response to this was to


5

10

15

20

25

30

35

40

45

get the Vita Report so that I could put a report to government to say, “You’ve got to fix this, you’ve got to fund this properly.” And we need to address it now.

MR MORRISSEY: And, sorry, just a moment, please.

MR LAWRENCE: Alright. And let the guard - - -

MR MORRISSEY: Just a moment, please.

COMMISSIONER WHITE: Mr Lawrence, don’t shout at the witness, please.

MR MORRISSEY: Commissioners, although there was some relevance to that and I didn’t object, my submission is we’ve now moved well outside the reasons for the extension of time which as I understood it were to extend to matters related to why decisions were taken, in particular to the use of gas and with reference to matters which I thought were to be cross-examined upon. Now, the extension of time is to the detriment of all, including other counsel here. Counsel has simply got to discipline himself, otherwise I will make it clear: I will seek that the extension be revoked because he has got to deal with the issues that are important. That’s my submission.

COMMISSIONER WHITE: Yes, thank you. Upheld.

MR LAWRENCE: I’m trying – this is central to my client what I’m asking about. It’s not exactly extraneous. It’s on the night.

COMMISSIONER WHITE: Mr Lawrence, you say that on many occasions, but you must exercise a degree of restraint and discipline so that you can get through the matters that you need to cover, and you have still got a way to go, and you saw how late we sat last night.

MR LAWRENCE: I know.

COMMISSIONER WHITE: It’s not fair to those who come last.

MR LAWRENCE: Alright. Now, what happened sequentially, because we know from the real evidence which is the film etcetera, was that he didn’t get through the window. One of the Youth Justice Officers pushed him back with a broom, you accept that?---That – I think there’s more to it than just pushing him back with a broom. I think there was concern about him falling that distance.

Well, that might be the reason, but the narrative is that he didn’t get out?---No, he didn’t.

He got pushed back in. And he then threw a piece of aluminium back through that window that he had tried to get out of and that aluminium struck one of your officers on the arm causing a cut?---That’s correct, yes.


5

10

15

20

25

30

35

40

45

Right. Now, he’s given evidence here that he couldn’t calm himself down at this stage, and he had no plans at all, and he had no intentions to hurt anyone?---That wasn’t obvious on the night, Mr Lawrence.

But you accept he’s throwing it out a side window?---Sure.

Okay. Now you know the evidence is of course that– sorry, AD apologise to Ben Kelleher the next day?---Yes, I understand that.

Profusely for carrying on like an idiot earlier in the piece when Ben tried to talk him down you know that don’t you?---I understand that, yes.

Thank you. Now, that injured Youth Justice Officer, he didn’t show you his injury that night?---Yes, he did.

He did. He said to the investigators for Bath it was a minor injury?---On the night I thought it was a little bit more than a minor injury. It looked like a very nasty cut.

Okay. But there was no charges laid in relation to that, and anyway, the officer in fact was asked by the police and he said he didn’t want charges?---Well, I think that was the individual view of the officer.

Yes?---I also asked the officer did he want to press charges, and he said he would think about it, and we left it at all.

The next sequence is that someone, and we hear this, this isn’t supposition, one of your Youth Justice Officers says, “Go grab the fucking gas and fucking gas them through, fucking get Jimmy to gas them through here.”

Remember?---I didn’t know that on the night. I’ve heard that on the tape since.

Yes?---But I certainly didn’t hear that on the night.

And the next person we hear is a Youth Justice Officer saying, “We’ve got to wait for approval first.” Remember hearing that?---I didn’t hear it on the night, but it’s - - -

You didn’t hear it on the night, but you’ve heard it. And then the Youth Justice Officer says, “It will make my job easier if you show Ken. He will just go, ‘yep, approval, bang, go,’ fucking get them out.” One of your officers said that, do you accept that, at this time?---I later heard that, yes.

Right. Now, AD said in his evidence, and I put this to you – you may have heard this of what he said. He says that he was very scared by the barking of the dog?---I’ve heard that.


5

10

15

20

25

30

35

40

45

And he told the Youth Justice Officers, after a while that he had heard the dog, not immediately but certainly thereafter, “I give up.” And he asked to speak to Ben?---Yeah, I never – I was never aware of that.

Right. But you accept that’s what’s happened, because you actually hear him saying this on the tape?---I haven’t actually – I haven’t actually heard that, and I’ve only been told and it was in evidence when we were doing the civil matter.

Alright. Now, the audio in the Handycam confirmed this, this is at page 18 if you want to look at the transcript which the Commissioner placed in his report at page 18 if the officers can kindly do this, but AD said tell Ben I want to talk to him and then one of your officers responds with this, “Nah, you’ve had your chance.” And somebody else then says, “He wants to speak to Ben.” And then another one says, “Hey fellas, they’re going to be gassing them short.” And another officer says, “He won’t come out. He wants to talk to Ben.” And another officer says, “He wants to talk to you.” And an officer responds, “Are you’re kidding?” And the officer says, “He wanted to talk to you, but I said you had your chance so yeah, don’t talk to him, he’s finished now.” That’s what happened on the night. We hear this?---And I was not aware of that on the night. And let me tell you, if I had been aware of that, then I certainly wouldn’t have allowed the use of gas.

And the Children’s Commissioner speaks to another one of your colleagues on the night because then he jumped up on the windows AD and told that officer that he wand to come out and the officer says to AD, “You can’t come out the window. Go to the door.” And AD says, “No, the dog’s there.” That’s what was gathered by the Children’s Commissioner on this?---Yeah, I - - -

You didn’t hear any of this?---And I heard nothing of that.

Now, all of this happened before you made a decision to deploy CS gas into the BMU section, which not only included AD doing this, but the five other kids who were in the locked cells; correct?---Yes.

Of course, this is when you come in because we actually hear you on the tape. Mr ..... who’s the dog handler asks you, “Are you going to gas the lot of them?” Remember him asking you that?---Yeah.

You do?---Yep.

Now at that stage there’s five kids in three cells; correct?---Yes.

And they’re locked in those cells. Four kids, sorry. And they’re locked in the cells, right, and you knew that?---Yes.

And a couple of them at least, in fact, three of them, two in one cell and Dylan Voller in the other have been causing damage within those cells?---That’s what I was briefed.


5

10

15

20

25

30

35

40

45

They could have even broken the locks?---I was concerned they had broken the light fittings and I was concerned there might have been some electrical wires exposed.

Right. Well, when you think about it there’s a possibility amidst all of that that they could have broke the locks of the cells they were in, making access therein even more difficult?---Well, at that stage - - -

MR MORRISSEY: Commissioners, sorry, may I just intervene. Commissioners, the context setting is becoming oppressive to others in this proceeding. There needs to be a coming to the crunch of what this witness can say about what he did and why.

COMMISSIONER WHITE: Yes. Thank you. I accept that.

MR LAWRENCE: Okay.

COMMISSIONER WHITE: Mr Lawrence, put your proposition to Mr Middlebrook now. We’ve got the scene setting very thoroughly.

MR LAWRENCE: I don’t think I’m being extraneous or irrelevant, you know. If you want to do something you do it properly. That’s how I was brought up and that’s all I’m doing, and I don’t know if I’m really being oppressive to others. I don’t see them jumping up saying, “You’re oppressing me.”

COMMISSIONER WHITE: Mr Lawrence, we have to get through our work. We have a limited time to do it and therefore if you would be so kind as to put your propositions to Mr Middlebrook, that would be of assistance to us.


The – you were the one that authorises gassing them at this stage?---Yes.

Did you do any health checks to see if any of those kids had respiratory problems?---No.

Were you in a position to do that?---No.

Was there any medical people there?---No.

Did you consider that you should have medical people there before you deployed CS gas?---No.

Did you consider the fact that they were detained, restrained in cells, before you give the green light to administer CS gas?---Yes.

Because that’s in the direction, isn’t it? There’s a directive that you’re aware of, in fact, I think you signed it?---Yes.


5

10

15

20

25

30

35

40

45

Which says that you can’t use CS gas if anybody’s got respiratory problems; you accept that?---Yes.

And you can’t use CS gas if anybody is restrained; you accept that?---Yes.

And those kids in the cells were restrained?---Yes, but – yes, go on.

Okay. So you breached that directive?---No.

No. Alright. And, of course, that directive actually only applies to men or rather adults. It doesn’t anticipate children being gassed, does it? It’s to do with adults in adult jails?---Mr Lawrence, it was the circumstances of the time and the moment that had to be brought to a close.

Right?---And that’s why - - -

And the circumstances are a 14-year-old bare foot kid.

MR TIPPETT: I object to this being put in this way. It’s an attack upon – the Supreme Court has found that the deployment of gas was reasonable in all the circumstances, having heard this evidence.

COMMISSIONER WHITE: We understand.

MR TIPPETT: Now, Mr Lawrence can’t invite, in my submission, this Commission to arrive at a conclusion in terms of a finding inconsistent with a clear finding on the evidence and evidence given by Mr Middlebrook, and much of this evidence canvassed through him and other witnesses. So in my submission he can put the events, but if he’s going to put a proposition inconsistent with that which the Supreme Court has concluded is the correct one then I object.

COMMISSIONER WHITE: Yes. Thank you, Mr Tippett.

MR LAWRENCE: Well, I don’t agree with it but I’m going to just accept it, if that makes sense.

COMMISSIONER WHITE: Yes. Well, again, you’re not getting to the point that you want to reach. So - - -


[REDACTED INFORMATION]

You know that now, don’t you?---I know that now. Yes.

And so this administration of gas, a decision you made, could have caused serious injury?---Look - - -


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Mr Lawrence, would you please move on to the point that you want to ventilate about your client and the issues that I thought you were going to get to about 20 minutes ago.

MR LAWRENCE: Right.

The fact of the matter is that AD didn’t really pose a great threat at this stage, at least one deserving of the administration of CS gas, the likes of which has never been done in a juvenile facility before this day?---In this State, in the Northern Territory, it’s probably correct, but it has been done in juvenile facilities.

Alright. In the Northern Territory. Thank you---But, Mr Lawrence, there’s – you know, it wasn’t just a matter of what your client or where your client was. There was a whole range of other issues that I had to take into consideration at that point, and that was compromising the security right through the centre. We had other detainees playing up in the main part of the centre. I had been briefed that of there was damage to electrical fittings. It was dark and I was faced with a situation that we could have had detainees breaching other cells in the main section. We could have lost power and been in the dark trying to deal with this issue. Now, that was the seriousness of that – that issue right at that point. Now, I still maintain what I did that night was the correct action for the safety of everybody there and for the safety of everybody involved. Is it brought it to a close quickly.

But you have clearly made a decision in the complete dark - - -

MR TIPPETT: Well, I object to this. It’s going down that path.

MR LAWRENCE: I can’t even ask the question and I’m getting objected to.


MR LAWRENCE: I can’t understand how someone can ask object to a question without hearing it. I don’t know how that works.

COMMISSIONER WHITE: Because I think probably Mr Tippett knows you, Mr Lawrence, and he can read your mind.

MR TIPPETT: Yes.

COMMISSIONER WHITE: Now, Mr Lawrence, would you be so kind as to ask less questions about the detail and more about the things that I think would be a useful point for your client to have ventilated, in other words - - -

MR LAWRENCE: Please guide me because if you can, I will.

COMMISSIONER WHITE: Talking the child down.


5

10

15

20

25

30

35

40

45

MR LAWRENCE: Yes. Well, you have said in evidence in the trial that you were happy to stay there all night if it was feasible?---If I hadn’t had the other issues like the other detainees in the main block kicking doors and having the possibility of having those breached, not having problems with the electrical faults, either somebody getting electrocuted or – well, I knew that there would be a safety circuit thing, but what I was worried about was ending up in the dark and trying to deal with that with torches is not the best way of managing.

Well, look, gassing five kids - - -

COMMISSIONER WHITE: Mr Lawrence, just a moment. You can have two minutes to ask some wind-up questions, that’s all, because you’re really just going to make pronouncements of Mr Middlebrook about gassing children and there really isn’t any virtue in that now.

MR LAWRENCE: We now know and you have accepted the narrative so the decision you’ve made is in the dark?---It wasn’t in the dark. The alternative, Mr Lawrence, was that I put two correctional officers in safety gear, rushing at that young man and grabbing him – now, there was glass all over the floor. You imagine 100 kilo correctional officer in full padded gear hitting that young man and pushing him up against concrete or – there was real, real danger of him sustaining real injury. Now, it was discussed about these guys going in with protective clothing and trying to do that, but I just did not like the idea of two fairly large-framed correctional officers throwing themselves at a young juvenile that could have been seriously injured that way. Now, I felt that the use of a bit of CS gas was the quickest way to bring it to an end.

Did you? Well, actually, what you felt was that you didn’t mind how much chemicals was used; you gotta get them out. That was what you said on the night?---Yes. And - - -

That was you on the night, wasn’t it?---Yes. I said that. But you have got to get that in context. That statement on its own sounds very callous. But I knew – when I was asked that by the dog handler, I had already asked the IAT what gas they had. And when they told me I knew they had aerosols; I knew that was a limited amount. I didn’t say we will use a heap of canisters. I didn’t say throw a gas grenade in. I knew that the operator that was going to use it was trained, and I knew that he would use as much gas as he thought was necessary for that area. Now, I can tell you I went into that area after the last young person was removed, and I wasn’t really affected by the residue.

Thank you?---So there wasn’t a lot of gas used.

Well, you know how - - -

COMMISSIONER WHITE: Last question, Mr Lawrence. It truly is your last question, so make it a good one.


5

10

15

20

25

30

35

40

45

MR LAWRENCE: The situation that – there on the night, compared with gas, you should have just ordered or ensured that AD was spoken to so that he could come in, as we now know with hindsight is all he wanted to do?---Mr Lawrence, there were a number of people trying to talk to your client and he just did not respond to that. I witnessed – I actually witnessed people trying to talk to him. And each time they opened the door to talk to him I witnessed shards of glass coming at the door. I was there. I was there on the night. If I could have resolved that without gas, Mr Lawrence, I would have done so. But I had a bigger issue that night. If, in fact, I had those other detainees breach that, if in fact I had those other detainees that might have had a cigarette lighter or some other method and started a fire, we would have had a major issue. When I got to that detention centre that night in the car park, the noise that was coming out of that place – it was worrying. And I had to deal with that, and had to deal with it quickly. Now – yes. I’m not happy about having to use gas. And, yes, if I didn’t have all of those problems happening around me I would have been quite happy to sit there and wait till your client had got tired and decided to come out. I would have been more than happy to do that, but that wasn’t the situation of the night.

And, yes, if you had known he had said, “I have given up. I want to speak to Ben,” you wouldn’t have done it?---Well, yes. If I had been told that - - -

Right?--- - - - then I would have made that happened.

Right?---I would have facilitated that.

COMMISSIONER WHITE: Thanks, Mr Lawrence. Thank you.

MR MORRISSEY: Commissioners, for myself, I’m content to proceed. I’m sure everyone is.

COMMISSIONER WHITE: How are you travelling, Mr Middlebrook?---I’m fine. Thanks, Commissioner.

You don’t want a short break?---No. I’m good, thanks.

Alright. Well, there’s a bit to go so we probably will take a five minute break after a little while. Thank you. Yes.

MR MORRISSEY: This one might be a 40 minute. I understand there’s been leave for - - -

COMMISSIONER WHITE: Who are we doing next?

MR MORRISSEY: Commissioners, whoever starts next, may we just ask the that Commissioners, at a moment in your discretion, indicate that a break will be taken and you don’t need to wait for the end of a particular .....


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Well, then, if that’s the case let’s take five minutes now so that those who need to can do what they need to do?---Thank you.

MR MORRISSEY: Thank you.

COMMISSIONER WHITE: Alright. Thank you. I think that would be sensible.

ADJOURNED [4.16 pm]

RESUMED [4.30 pm]

<CROSS-EXAMINATION BY MS LEWER [4.30 pm]

MS LEWER: Mr Middlebrook, my name is Lewer, and I appear on instructions from the Central Australian Aboriginal Legal Aid Service. I just want to begin, if I may, with something that came from your evidence when you were asked questions by Senior Counsel Assisting. You said at one point that before 2013 the system was working. And that’s transcript reference 2925, line 8. Now, clearly, for the reasons you have outlined in your statement you wouldn’t include Alice Springs in that general statement, would you?---I’m just trying to think of the dates we moved to the new centre. When I say working, I mean, I don’t think I was ever satisfied that it was working as such but we had – we didn’t have the sort of problems, some of the behavioural challenges that we had 2013 on. So, you know, if you’re asking me did I think everything was fine in Alice Springs, I wasn’t satisfied with the infrastructure that we had and I wasn’t satisfied with the level of training. I wasn’t satisfied with the fact that we were relying on a lot of casuals and we were having real difficulties. I mean, most businesses, I think, in Alice were having trouble getting people.

Sure. And you outlined in your statement an occasion that you went down there before 2013 when you saw the kids huddling under blankets, no soap, no deodorant, you talk a little bit about the management, the problems that were there. Just - - -?---Yes. I - - -

You were aware that there were these issues before 2015?---Yes. Look, I recall going there one afternoon and I was absolutely horrified that the kids had smashed the louver windows and they hadn’t been repaired. In fact, I actually at that point I got the superintendent to get the chief industries officer from the prison to get that fixed and that was fixed within days.

Certainly, Mr Middlebrook. You have outlined that in your statement?---Yeah.

I’m under some - - -?---Sure .....

.ROYAL COMMISSION 28.4.17 P-3347 K. MIDDLEBROOK XXN©Commonwealth of Australia MS LEWER

5

10

15

20

25

30

35

40

45

Some very quick time constraints. So if you can - - -?---Yeah.

In terms of the management of youth justice, that was centred in Darwin; you would agree with that?---Yes. But I did try to push – you know, I always had a view that – well, my personal view was that I didn’t like bringing kids out of Central Australia. I thought we should keep them there. And it was one of the reasons that I pushed to close Aranda House. I mean, it was my initiative that actually moved to that unit, and I sometimes regret that. I think sometimes I gave government too soft an option in so doing that, but the whole intent was I wanted to get education down there and I wanted the kids the opportunity to be close to family, country, that sort of thing.

So you were located in Darwin, Salli Cohen was, the superintendent was, there was no superintendent on the ground in Alice Springs. You have given some evidence about sometimes you would get a call in the middle of the night about something going on at Don Dale and you yourself would go down there?---Yes.

Obviously there’s a limit to what can be done in Alice Springs when everyone is located in Darwin; that’s right, isn’t it?---And yet – though the superintendent of the correctional centre – the old correctional centre – he provided a lot of close support to the facility. So where I might go at midnight if there was a problem, a real problem, if I rang him he would go and give assistance to the staff there.

A lower level down?---Well, he was superintendent level, you know. But, yes, I mean, basically the whole executive structure was here in Darwin.

Would you accept in hindsight that the concentration of senior and executive roles in Darwin could have had an impact upon the management of Alice Springs on a day-to-day basis?---No. Not really. I think – I think what we tried to achieve was a greater level of supervision by an oversight by getting there more often but I don’t think it’s practical to try and split a small system like ours or put part of management in Alice Springs and part in Darwin. I mean, it’s always going to be a problem. But I do think that we did try to put a lot of support around the people there.

I suppose there’s two different parts of that answer, isn’t there? You can accept the proposition, yes, maybe they did get a lesser deal but there’s reasons for that, there’s practical constraints, there’s resource constraints. There might be a rationale around it without in any way impacting upon the proposition which was there was an impact on the ground?---Yeah. And I think I tried to, you know, put systems in place, like traditionally the officer in charge at Aranda House was a very low level. I think it was about an AO4 administrative grade. And we created the positions of assistant general manager and tried to increase that grade to actually recognise that additional responsibility because of the remote location.

In terms of Aranda House, in your statement you state that you’re not quite sure exactly when it was shut and what children might have been held there for a short period. Just wait for a moment. So I understand that is the basis of your evidence. Were you aware of a draft recommendation when the Vita Report was first circulated


5

10

15

20

25

30

35

40

45

that Aranda House should be closed immediately?---Yes. Yes. And, look, my preference would have been to close Aranda House when we moved to the new wing – I call it a wing, but the new centre. But the reality of it was we were still struggling with bed capacity and they had to go somewhere so we kept it as a backup emergency but the intent was – and we used to speak with the DASSA, the rehab people that operated the remainder of that facility – our intention was to try and hand it to them as soon as we possibly could.

But you had to keep it open till the new Berrimah facility was ready - - -?---Correct.

- - - so you had extra holding capacity?---Correct.

Now, you gave some evidence when you were answering questions from Senior Counsel Assisting about making arrangements for it to be reopened in 2014 to house some detainees that you were having difficulty with in Darwin. Do you remember that?---Yes.

Was it the case that Aranda House was used as a form of Behavioural Management Unit: for detainees that were difficult in Don Dale or Alice Springs, they might be used to Aranda House for a time in order to manage their behaviour?---Not so much to manage their behaviour, but firstly to separate them, because sometimes bad behaviour is a bit like a virus; it will spread to other vulnerable impressionable young people. And it was also about trying to just keep those young fellows that were playing up in a separate location and try and work with them. I think, from memory, it’s a while back now, but I think we were having a lot of trouble with Mr Voller, and we tried to set up a specialist programme there for him, and we did that for a while, but numbers beat us. I mean, numbers were coming in and we really then were using it for bed capacity.

But you would accept in separating them those children being placed in, to use your words, a deplorable place – that’s how you described Aranda House?---I wasn’t – yes. Yeah. Yeah. If I had another alternative I would have used it.

I want to suggest to you, Mr Middlebrook, that during your time as Commissioner that youth justice was run essentially as a modified version of adult corrections. Would you accept that general proposition?---Not at all.

I want to suggest that for kids in Central Australia going into the Alice Springs Youth Detention Centre, in many ways the experience was substantially similar to the experience of an adult going into the correctional centre there; would you agree with any of that?---No. I don’t agree with that.

They are on the same site?---They are on the same site.

The meals same for prisoners and - - -?---The meals came from the – yeah.


5

10

15

20

25

30

35

40

45

The laundry done the same way?---With the exception of – sorry. With the exception of some days, because we had a – I think it was Charles Darwin Uni or somebody that donated a modular kitchen, and there were some days where young people were involved in making pizzas and doing some cooking. So that would have been probably a day a week or something. But generally they were supplied meals from the prison.

A lot of the amenities inside – they have got prison beds that they’re sleeping on. A lot of the amenities are prison amenities, because this was a cottage – low security cottage designed for adult inmates. That’s right; isn’t it?---Well, it was all new furniture, but, yes, it was very much – it was done on a budget.

I suggest it’s not new furniture. There’s a plethora of reports about the deficiencies of the furniture?---When that wing opened that was all new furniture.

Well, it may have been when the wing was opened - - -?---The wing - - -

- - - as opposed the cottage?---No. The cottage was never used. The cottage was brand new and hadn’t been commissioned, and when we turned it into the youth justice centre.

The Commission has heard a range of evidence from young people that the staff in the centre – so this is Youth Justice Officers as well as, from time to time, prison officers – used a range of techniques that are used in adult prisons. So things like musters, cell extraction techniques, a lot of the same techniques that are used in adult Corrections. Are you aware of that type of evidence?---Yes. But I disagree with a lot of that because there – you’re talking about – there were very different problems in Alice Springs than what we experienced in Darwin. I mean, the – they were different ..... group and quite frankly there was probably three or four young fellows that created problems at Alice Springs but by and large the Alice Springs detainees were remarkably different in behaviour than what happened in the Top End. A lot of the young fellows from – whilst we had a lot – probably a lot of escapes, where these young fellows were fairly agile and go over the fence, there wasn’t the same behavioural problems as there was with some in Darwin.

But I’m asking you about the differences between children in detention in Alice Springs and adults in detention in Alice Springs. I’m not talking about Darwin. I’m talking about the experience for a person going into those two different facilities. That’s where I’m directing you to at the moment. And my suggestion is it’s essentially a very similar system?---There’s some similarities but I wouldn’t say it’s exactly the same.

Would you accept given your background – and you have been very willing to accept you don’t have a youth justice background?---No.


5

10

15

20

25

30

35

40

45

You worked initially in a prison and you have come up through the ranks – that that has impacted upon the management in the Department; that you have adopted a Corrections approach because that’s the experience you have?---I don’t accept that.

Now, one of the things that happens when a child enters into the detention centre is they go through an admission process; you’re aware of that?---Yes.

And their property is booked in?---They come – travel fairly light, by the way. They don’t bring a lot of property.

Well, it depends, I suppose, on the point at which they were arrested - - -?---Thongs, shorts, and a t-shirt. Yeah.

- - - whether they have come to court, all those sorts of things?---Yeah. Yeah.

They’re then giving clothing to wear?---Yes.

And that – the Commission has heard evidence in terms of kids wear shirts which have colours designating classification?---That’s correct.

So blue shirt, red shirts, etcetera?---Yes. That’s – yes. That’s - - -

They’re in a uniform?---Well, it’s loosely uniform. Yeah.

Okay. Can I have on the screen, please, from the youth justice regulation clause 61. This is a – the regulation that was in place as at the time that you left your position and just take it from me the provisions were the same. I have checked them during the whole time that you were Commissioner?---Yeah.

And I will be corrected if – no doubt, if that’s incorrect. Okay. So clause 61 you can see:

The superintendent must ensure that on admission to a detention centre the detainee is issued with sufficient clothing.

And then there’s some requirements about that. And can you see D:

Other than for the purposes of sporting activities, that is of varying colours styles so as not to represent a uniform.

Now - - -?---Yeah.

Let me ask a question. Putting all the children who are high classification in red shirts or whichever colour it is, low classification in blue shirts, those children are in a uniform, weren’t they?---It’s a very loosely termed uniform. I mean, it’s a T-shirt and a pair of shorts. It’s a way of distinguishing who’s on remand or who’s, you know, security. I mean, you have got to – when you look at – you haven’t got a real


5

10

15

20

25

30

35

40

45

secure centre, and the staff – and especially casual staff, you need to have a system they can identify and it’s easy for kids to change shirts by the way. I mean, it’s not hard for somebody to change a shirt. But it’s a system that – that has been used here, and I can’t ever remember it being raised with me as an issue.

The great thing about a uniform is it makes it easy for people to identify the person; that’s what the uniform is for. That’s why those kids are in those shirts. So as you have said - - -?---Identify classification.

- - - the youth justice officers – could you let me finish. The Youth Justice Officers can tell they’re a detainee and they can tell their classification. It’s a uniform, isn’t it?---Well, it’s to determine classification. They can, you know, check that.

Well, that’s right. It’s showing in the form of clothing what classification a child is?---But I don’t really see a problem with that.

Well, it’s in contravention of the law, isn’t it?---Where?

The requirement is, and I have taken you to it that:

The superintendent must ensure a detainee is issued with sufficient clothing that is of varying colours and styles so as not to represent a uniform.

?---Well, I wouldn’t have called it a uniform. Okay, you know, there’s shorts and a T-shirt, because it’s coloured. There’s a requirement, there’s a security requirement of the detention centre.

COMMISSIONER WHITE: What’s the point that you’re going to be making with Mr Middlebrook because it’s quite – it’s perfectly plain.

MS LEWER: It is. That - - -

COMMISSIONER WHITE: And you could both argue until you’re blue in the face about what constitutes a uniform.

MS LEWER: Certainly. Certainly. Just in fairness I wanted to put it because it’s a contravention, in my submission. If I could now have on the screen section 156 of the Youth Justice Act. Are you aware of this section?---Yes. Yep.

I want to ask: how was it implemented in the time that you were Commissioner?---156?

Yes?---There would be an expectation that the general manager of the centre would have a process there that would allow young people to be spoken to if, in fact, there’s a disciplinary procedure.


5

10

15

20

25

30

35

40

45

So on any of the occasions that you were asked to exercise your power pursuant to the Act, that’s a power to isolate a detainee, were you ever informed about what the child had said in relation to the measure that was going to be imposed upon them?---Occasionally, yes. Towards the end, when there was some real behavioural problems at Berrimah, I don’t believe I had anything substantial about what that process was, but I had confidence that that was being done with the structure within the youth centre.

Had confidence it was being done. On every occasion that a disciplinary measure was being taken a child was being given the right to be heard?---Yes.

Can I have on the screen please WIT.0001.0013.0210. I might leave that for the moment.

COMMISSIONER WHITE: What seems to be the trouble?

MS LEWER: It could be my - - -

COMMISSIONER WHITE: Can’t find it? What’s the document, Ms Lewer, that you’re trying to - - -

MS LEWER: I might park it at the moment and come back to it, if I may. It was a document authored by Mr Ferguson which was – indicated that there was no evidence that this section was being complied with, but I will have perhaps come back to it if I have the wrong provision.

THE WITNESS: Is that part of the memo that Mr Ferguson wrote to me in December 2014?

Yes?---Yes, okay. I am – well, there you go. There it is.

I think it’s the final – no, I’m sorry, we will have to leave it. I will see if I can find it. In terms of the official visitors program you’ve annexed to your statement a number of annual reports?---Yes.

Would you accept from me that those annual reports show that there were less than the mandated number of official visitors at the Alice Springs Youth Detention Centre and that they did not visit the required number of times?---Look, I’m not sure. It’s a while back, but I’m not sure why we wouldn’t have had that because there was a lot of effort made to make sure that official visitor program was operational and fully staffed.

Well, there has to be three. You’re aware of that?---Yes.

And you’re aware that they have to visit at least once a month?---That’s right, yes.


5

10

15

20

25

30

35

40

45

The most recent report that you annexed, which is WIT.0122.0002.0211, on - - -?---Is that the annual report?

Sorry, it’s WIT.0122.0002.0385. And it’s 385. See there, for example, there’s only two official visitors appointed, and they’ve only visited eight times, falling short of the mandated requirement under the Act?---But you know, it could have been in between - - -

Mr Middlebrook, if you can, do you agree that’s what it says?---Well yeah, if that’s – it would have been correct at the time of that printing.

And I put to you that the annual report the year before has a similar state of affairs. I’m not going to take to you it, but do you have any comment to make about that?---Only that I’m not sure what the circumstances or the problems were. But it’s – you know, it’s a bit like staffing, it’s – sometimes getting people into these roles is not always easy.

There’s evidence before the Commission that children were routinely strip searched on occasions such as when they came back from Court. Are you aware of that?---In visits?

And visits, yes?---Yes, I’m aware of that.

As a matter of course?---Yeah. Well, it would have been, it would have been a procedure I think.

If I could have on the screen please section 161 of the Youth Justice Act.

COMMISSIONER WHITE: That was 151, wasn’t it?

MS LEWER: 161.

COMMISSIONER WHITE: 61.

MS LEWER: You will see there:

If the superintendent believes on reasonable grounds it’s necessary… superintendent may direct a search.

?---Yes.

And to just have a look at that as well, sub (2), again believes on reasonable grounds?---Yes.

How is it that a superintendent formed the view at Alice Springs Youth Detention Centre, on every occasion that this – a child was returned from court or visits that it was necessary to strip search that child?---It may be because the procedure, and


5

10

15

20

25

30

35

40

45

people coming in from Court means they may have had some contact with others at court, and same with the visits. Just because these young people are young people it doesn’t mean to say they’re not capable of carrying contraband into the correctional centre.

Did the superintendent form that view on every occasion a child was strip searched?---Well, I think the superintendent put that as a directive or a Standard Operating Procedure for the centre.

So those searches were conducted pursuant to directive or a Standard Operating Procedure, not pursuant to a view formed by the superintendent on each occasion; that’s your understanding?---The superintendent would have authorised that Standard Operating Procedure.

Are you aware in other jurisdictions, when they search children – they strip search children they adopt what’s called a half/half - - -?---Yes. I’m - - -

- - - system, which is whereby a child takes off a bottom half of their clothing, puts that back on, then takes the top half off?---Yes. I know of that. I mean, that’s a pretty common practice.

And you would accept that that’s a matter which would have afforded a detainee greater dignity and self-respect than being forced to take off all their clothes at once?---Yes – yep.

That was never implemented while you were Commissioner?---No. I must admit, no.

And you understand it’s a requirement pursuant to, again, the Youth Justice Act that the searches have to be conducted with regard to the detainees’ dignity and self-respect?---Yes, and I believe that was done.

Even though there’s a measure which you accept could have afforded more?---I think we could – I could - - -

If you would just let me finish. Even though there’s a measure that could have afforded more dignity and self-respect, you still accept they were complied with?---I think they – the officers believed they were complying with it, but I’m – I concede that it could have been done better.

Now I accept, Mr Middlebrook you’re not a lawyer, but what I want to suggest is there’s a range of contraventions of the Youth Justice Act, and the regulations that applied while you were Commissioner, and that exposes that there was a lackadaisical approach taken by you and your Department to compliance with the law?---I don’t agree with that.


5

10

15

20

25

30

35

40

45

And, in fact, you say at paragraphs 119 and 120 of your statement, which is as I understand it exhibit 318, that certain human rights considerations can be very difficult to observe in practice. Do you remember saying something like that?---Yes, I do.

What I would suggest to you is that for children in your care you only applied the law, the Australian standards and human rights instruments when it’s convenient for you to do so. Would you agree with that?---No, I don’t agree with that.

Turning to the classification system, would you agree classification is a essentially a structured risk assessment process?---Yes.

It’s the language of the directive in relation to - - -?---Yes.

- - - classification. Now the time you were Commissioner – if fluctuates, but generally children in detention on a night between 30 and 50?---You mean average bed days, yes.

Every night, between 30 - - -?---The numbers, you mean.

- - - as a low number, 50 as a high number?---Yeah, that would be about right.

And in Alice Springs it’s between on 10 and 20?---Yeah. I would think on average about 15, yeah.

And the majority are on – vast majority are on remand?---70 per cent.

Adults, the same time in your department, it’s about 1500 a night? Varies again, but there’s a broad?---Yeah – yeah, that’s probably pretty right.

Now, clause 69 of the youth justice regulation requires the superintendent to maintain a comprehensive case management system to assess each detainee’s needs in relation to education, vocational training and rehabilitation. You accept that?---Yes.

There’s no such equivalent provision for adults?---No.

What I’m going to suggest is, given the very small number of children that you have, if you were properly implementing a case management system that responded to each child’s need there’s no need to have a classification system?---I don’t – I disagree with that. I think you do still need a classification system.

Even though you’re dealing with 10 to 20 children?---All up, you’re only talking about Alice Springs.

Certainly?---But across the Territory we were dealing with a lot more, but in Alice Springs I still believe you need a classification system.


5

10

15

20

25

30

35

40

45

What else I want to suggest is classification regimes are useful in adult correctional centres because they permit managing a large number of people. You can put people in different facilities and different wings based upon their classification status. You don’t really have any capacity to do that with the small number of children in the facilities you’re operating here, do you?---We don’t have that capacity with the institutions, but even though the small number of prisoners – detainees, some of those detainees can – can represent a fairly significant risk.

They may, and that should be managed - - -?---Well, they do.

- - - in accordance with the case management system - - -?---Sure, but - - -

- - - rather than classification, again, I suggest to you?---Well, I – I – I disagree with you, and after 38 years of working in the Corrections environment I would think that a classification system is essential.

What I suggest is a classification regime was used as a compliance measure with children. Would you agree with that?---No, I wouldn’t agree with that.

In your statement of 24 March you said:

It’s very difficult to provide therapeutic programs for the children because a number of them are on remand.

?---Yes, that’s right.

And I think we all understand that it’s very difficult to plan when people are on remand. You don’t know how long they are there for, they might be there for very short periods of time, they may not have admitted liability for particular offences. We understand all of that?---Yep.

However, still an obligation to provide productive activities for those children, isn’t there?---Yes, I agree.

And, in fact, the programs that are designed should be designed with consideration being given to the fact that, the vast majority of the population that the programs are being given to are on remand?---Yeah. And I think – you know, it’s more than just, it gets back to, I suppose, your classification. But one of the things that I did try do in Alice Springs in particular was to engage with BushMob and look for alternatives, because I’ve always had a problem with the numbers of remands and the time that they actually spent in custody.

I’m jumping around, I’m sorry?---You’re right.

But just returning to the classification point are you aware of any officers using the classification tool as perhaps a punitive measure with particular children?---No.


5

10

15

20

25

30

35

40

45

Would you accept from me that rather than classification, rather than discipline measures, that what would really work in a youth detention environment, given the cognitive impairment some kids might have, different ages, all that sort of stuff is a properly implemented system to encourage positive behaviour and minimise negative behaviour based upon the principles of child psychology and those sorts of considerations?---Yes. Yes.

And that’s probably going to be more effective than using tools which were perhaps designed for an adult corrective environment and trying to modify them for children?---Sure, but – you know, most of that you’ve got to have a commitment from Government to fund the resources to do that.

And would you agree that that was largely absent in youth detention by the time you were Commissioner?---Funding?

Funding, but a system as I said which – as I said, which was based upon child psychology principles which is about encouraging positive behaviour and minimising negative behaviour?---I think we tried and I think we tried to look for alternatives to actually develop that.

At paragraph 40 of your statement, again I believe exhibit 318, you were taken to this by Senior Counsel Assisting, you suggested the decline in good order and management of Youth Detention Centres and perhaps particularly Don Dale was because of the changed attitudes of detainees. Do you remember that?---Yeah.

It follows on in your statement sequentially, from a portion where you talk about increasing numbers and overcrowding and difficulties housing female detainees?---Yes.

And because you had to house female detainees, that impacts on the amenities because you’ve got to put them in, perhaps, space that you had reserved for programs and things like that?---Yes.

Do you think it’s possible that that could be at least one explanation for why there was a change in attitude that you observed?---No. A lot of those young people came in with an attitude, I mean, if – if in fact you looked at – these young people didn’t display that sort of behaviour in the community, and only in the correctional centre or only in the detention centre, I could accept your proposition, but that wasn’t the case.

Do you think it could be a contributing factor at all?---Look, I think overcrowding is a contributing factor because there’s less of anything to go round. I mean you – when you start overcrowding a centre, you’re starting to invite problems.

I want to ask some questions about YDRAG, you know what that is?---Yes.


5

10

15

20

25

30

35

40

45

If I suggest to you that it was set up for the purposes of sidelining critics and to shut down the repeated calls that were being made for an independent inspector to be created?---That’s wrong.

What would be your response?---No.

Could I have on the screen please DCF.0002.0007.7435. Now, just see below there’s a letter from Priscilla Collins. It attaches a letter. I’m sure you’ve seen the letter of before. It’s a letter that NAAJA is expressing concern about moving children from the adult facility and also repeating the request for an independent inspector to be appointed. Do you remember that?---Yeah. Yeah.

You see you’ve responded, perhaps if we go to the top just so you can see. And the third paragraph, “Last thing we need is an inspector”?---Yes.

Then you say:

I’m of the view that bringing these organisations into the tent with us will leave them little opportunity to sit outside throwing their criticisms.

Did you say that?---Yes, but you’ve missed out the part that says:

This would be another costly, bureaucratic process that diverts funding from the front line.

And that’s critical. I mean, if, in fact, Government and the way that we were being squeezed wanted to set up that, you can bet your life that that funding to fund that organisation would be taken from the existing front line services that we already had. Now, I don’t really care whether we had an inspector-general or not, but we needed – we weren’t adequately funded, and you can read whatever you want into it about leaving little opportunity to throw the criticisms, but a lot of the criticisms were thrown at us before people actually come and had a look at what we had planned and we wanted to do. And the YDRAG was a genuine attempt by me to make sure – I wanted to make sure that the Vita recommendations were implemented. I didn’t want it to be another dust catching exercise in a drawer. I wanted to make sure that we got that. And I said – I think I’ve given evidence that part of that process, I asked for a person from Treasury to be involved, because I wanted a realistic budget model to be developed for youth justice.

There’s just one thing. Part of your answer was, “I didn’t care whether there was an inspector.” You accept you said, “The last thing we need is an inspector”?---Well, if we were going to be funding it from front line services it was the last thing we needed.

And you’ve thought that perhaps an inspector – produced reports gathers dust. That was one of your concerns about it?---No, I said to you I didn’t warrant the Vita


5

10

15

20

25

30

35

40

45

Report to be another report that gathered dust. I just didn’t want it to be another consultancy report that wasn’t acted on.

I just don’t understand why they’re inconsistent. Why is implementing the Vita Report inconsistent with the appointment of an inspector of custodial services?---I don’t think it was necessary. In a small jurisdiction like the Northern Territory, you’ve got an ombudsman, you’ve got a Children’s Commissioner, how many inspectorate bodies to you do you want to fund to sit over looking at this? Isn’t it better to spend those funds on the front line? If, in fact, the YDRAG was working properly, why the hell wouldn’t they be making sure that that works? I mean, just to have another inspectorate body along with the others is really spending resources that should be spent on the front line.

There’s also another group isn’t there, under the Youth Justice Act, which is an advisory group that already existed?---Yes, and you wonder what value add they’ve added in the last however many years they’ve been going.

Nonetheless, despite doubting the value that they added, you wanted this new advisory group, YDRAG, to be set up?---Yes, I did.

And I just suggest again that at least one of the reasons why you wanted that was so you could shut down criticism and that you could shut down the advocacy being put forward for an inspector of custodial services to be implemented?---Well, if that meant implementing the Vita Report recommendations and improving the system, then that was addressing those issues.

I just warrant want to turn to the issue of Ms Carroll. You know Antoinette Carroll?---Yes, I do.

You’re aware – well, you wrote her a letter?---Yes, I did.

You remember the letter we’re talking about, after you heard some recordings at a conference, you wrote to her after that?---Yes.

I’m not sure if it’s yet been exhibited. I don’t know the exhibit number, but we had asked for it to be on the screen, the letter Mr Middlebrook wrote to Ms Antoinette Carroll. Perhaps, while that’s coming, just confirm I’ve got the chronology correct. At that conference where you heard the recordings, you then had a verbal conversation with Ms Carroll; that’s right, isn’t it?---I had a verbal conversation with Ms Cohen first, then Ms Carroll.

And you said to her something along the lines of, “I think you didn’t have permission to take in the recording equipment”?---No.

Or some discussion about the recording equipment?---I asked her who gave her approval to take the recording apparatus into the Alice Springs Correctional Centre.


5

10

15

20

25

30

35

40

45

And she told you who gave her approval?---She said Ms Cohen.

And the very next thing that you did after that in terms of this issue is write this letter; is that right?---I confirmed again with Ms Cohen and she said no, she didn’t give approval, and I wrote the letter.

Very serious allegations contained in this letter, aren’t there?---It’s very serious taking a recording advice into a centre without permission as well.

It’s a criminal offence?---It is.

And you put that allegation squarely in the letter, don’t you?---I did, yes.

Did you think perhaps about writing an email to Ms Carroll saying, “You told me that you had authority. Could you let me know when, where you got that authority from”?---I don’t see why an email is any different to sending the letter. The same content would have been in an email.

Regardless of the conduit of it, rather than putting the allegation, did you think about asking her to provide you with a copy of the authority?---I think that’s what this letter is about.

Well, it’s not – it’s not asking her to provide anything, is it?

MR TIPPETT: Yes, it asked for a written response.

MS LEWER: I accept that.

COMMISSIONER WHITE: Thanks.

THE WITNESS: Yes. That’s right. At the bottom of the second last paragraph.

MS LEWER: And she did, in fact, provide you with a response, or she did through Mr Mark O’Reilly?---I think Mr – from memory, Mr O’Reilly rang me, and then he sent me a letter, and I think I’ve said this through my statement. I wasn’t confident with the advice I was getting from Ms Cohen, and I didn’t pursue the matter any further.

I will just come to that. You accept that it’s a serious thing to make an allegation – you’re the Commissioner of Corrective Services?---Yes.

To make an allegation that somebody has done something in contravention of the rules of your Department, which constitutes a criminal offence?---And it’s serious enough to take – I’ve got to take seriously people introducing those devices into detention centres.


5

10

15

20

25

30

35

40

45

It remains potentially on her file in the Department, and could impact upon security assessments of her in the future if she wanted to go into a custodial environment. It might be something that’s flagged?---I doubt that very much.

Has the potential to be though, doesn’t it?---But I doubt it would be.

Now, after Ms O’Reilly wrote to you and provided a copy of the authority that Ms Carroll had, did you ever respond?---I’m not sure. I’m not sure whether I spoke to him, or whether I sent another letter. I mean, I guess if there’s – a letter was sent, there should have been a record that followed this up. But there would have been on file Mr O’Reilly’s correspondence with this particular letter and I’m – you know, I can’t recall whether I did follow it up with another letter.

I’m going to suggest you to you, you didn’t - - -?---Well - - -

- - - and there’s no evidence?---I can’t recall whether I did or not.

Given it was such a serious allegation, you’ve got an obligation to retract it don’t you, in light of being shown in black and white the proof that establishes that she had that authority?---You know, there was no proof to show that. There was an approval to do a recording for some other event, but not the particular event that this was used at.

I’m sorry, wasn’t your complaint that she had taken a recording device into a corrective centre - - -?---Yes, it was to record - - -

Just let me finish my question, if you would. The complaint was that she had taken the device in. That was the gravamen of your concern, wasn’t it?---Yes, yes.

Well, she explained she had permission for that?---But not for that event. It was – it was – it was 12 months or more, another occasion, that she got that. Now, I’m not convinced that there was a proper authority given to record the recording that was made for that particular conference, or whatever it was in September, but I didn’t have the confidence in the information that my staff demonstrated to me that, and that’s why I didn’t pursue it.

So in light of that response, that your concern is apparently that she didn’t have permission to use it for a particular purpose, rather than as I suggested your concern was that she merely took a recording device in, I’m guessing you won’t take the opportunity to retract that - - -

MR TIPPETT: I object to that.

MS LEWER: - - - accusation now.

MR TIPPETT: I object to that because the purpose of the question is not the evidence.


5

10

15

20

25

30

35

40

45

MS LEWER: I withdraw it.

Would you retract the accusation now?---Well, I have got no evidence that she did have approval at that time to record for that conference in September 2015.

What I’d like to suggest - - -

COMMISSIONER WHITE: Can – you do – well, Ms Cohen has given evidence here and she did express her regret for having misled you over that point?---On that basis, Commissioner, then I would withdraw that.

Thank you.

MS LEWER: What I suggest, Mr Middlebrook, is that you had an approach when you were in charge of the Department, which included youth justice, which is when people aired a grievance about something going wrong, your response was to escalate the situation and to retaliate against people. Would you agree with that?---No, I don’t agree with that.

I suggest this is one example where you’ve done it. The other examples are the response to the Children’s Commissioner about the fact that an Easter egg was taken into the Youth Detention Centre. The email to the staff member, which Mr Boulten took you to where she had the temerity to express that she was unhappy with what she had seen on television and the way you responded to that, and your response to the union organiser who raised concerns about Don Dale. Your response was to threaten to engage - - -

MR MORRISSEY: Hang on, sorry, I have to object to this.

MS LEWER: Yes, I know.

MR MORRISSEY: Time is up, and that’s a compendious question, but there’s – a short version of the question is: did you have a pattern of retaliatory bullying?

COMMISSIONER WHITE: I think that was – that prefaced it and this is the examples that are being given to illustrate the denial of the answer. But perhaps if you could just say: do you remember the Easter egg contraband evidence?

MS LEWER: If I can. And if I had time I’d take you to each document and give you the opportunity for each, but I’m hamstrung. I’m suggesting there was a pattern of retaliatory, bullying type tactics which are deployed by you. Do you disagree with that?---I disagree with that.

I suggest that the Ms Carroll occasion was one such occasion, and you’ve given some evidence about that?---I disagree.


5

10

15

20

25

30

35

40

45

The other occasion is when the – you had a conversation with the Children’s Commissioner where you accused an employee of the Children’s Commissioner of trafficking contraband because they took an Easter egg in and gave it to a detainee. Do you remember that example?---I remember that, yeah.

Would you reject my classification of it as again another example of retaliatory behaviour?---No. And you need to hear the context around that.

I might leave that to your counsel to deal with. Then the third is the occasion that Mr Boulten took you to, which is when one of your employees said that she was unhappy, disgusted with the footage that she had seen, and you wrote what I think you said was an inappropriate response?---And again, you know, you need to see the context around that.

And then next occasion I would put is when you wrote to the union organiser who said there were problems in terms of the prison staff in Don Dale and you threatened to bring Serco in and private security personnel. Do you remember that occasion?---I didn’t threaten anything. I made a statement that if, in fact, the correctional officers weren’t interested in doing it, that I was quite happy to talk to Serco, G4S or the other private contractor about doing it.

And you had to put out a clarifying statement, didn’t you?---Well, I mean, I think people made more of it, and set fire to it, and caused more problems. But you’re talking about – I held that position from 2008 to 2015. You’ve come up with a handful of examples and I spent – I dealt with hundreds and hundreds and hundreds of people, hundreds of incidences, and to try and cherry pick a few things out and call me a bully I think is grossly unfair.

Well, just to finish my cherry picking, the last one that I want to put to you is your response to Jared Sharp, that that was an – that was example of you being angry about something and, in a public forum, seeking to make a whole range of his professional colleagues know that you were dissatisfied with him. I suggest that is another example of retaliatory behaviour?---That’s your opinion, but you’ve got to again look at the behaviour of Mr Sharp in all of this as well.

May it please.

COMMISSIONER WHITE: Thank you, Ms Lewer.

MR MORRISSEY: Mr O’Brien.

<CROSS-EXAMINATION BY MR O’BRIEN [5.15 pm]

MR O’BRIEN: Thanks, Commissioners. O’Brien’s my name; I represent Dylan Voller?---Yes, Mr O’Brien.

.ROYAL COMMISSION 28.4.17 P-3364 K. MIDDLEBROOK XXN©Commonwealth of Australia MR O’BRIEN

5

10

15

20

25

30

35

40

45

I have been given a very short period of time so – and most of my questions can be answered really briefly so I would appreciate if you gave it your best shot to answer with as much precision as you can and with as much brevity as you’re able to muster. Could you do that for me?---I would like to think I can answer them, though, Mr O’Brien - - -

Thank you?--- - - - and be heard.

Good. Now, I want to first of all ask you about the incident involving my client and Mr Morgan. You know what I’m talking about?---Yes. I do.

Yes. My client was 13 and one month in age and you know that he was lifted by the neck, carried and thrown with force onto a mattress on a cell floor?---Yes. I gave evidence on this on Wednesday.

Yes. I don’t want to ask you too many questions except that you agree, I think you agreed when you first became aware of this and you agree now that that behaviour is completely unacceptable use of physical force?---Yes. And I understood that we had terminated Mr Morgan’s contract.

Well, in fact, it was allowed to expire. That’s the situation, isn’t it?---I mean, I will retract that. I understood that we had finished with Mr Morgan’s services.

COMMISSIONER WHITE: You don’t need to traverse all of that.

MR O’BRIEN: I’m not going to. I really don’t want to.

COMMISSIONER WHITE: Good.

MR O’BRIEN: But if the answer is incorrect, I’m going to correct him.

COMMISSIONER WHITE: Of course. Of course.

MR O’BRIEN: Now, you were alerted to this and many other instances involving my client in April of 2012 by the Children’s Commissioner; correct?---Yes. Yep.

Now, and indeed, when you came to be aware of that matter, you were notified that it was – you thought that it was unacceptable he be allowed to continue in his position of employment although you knew that that had happened?---This was Mr Morgan?

Yes?---Yes.

And you accept also it was unacceptable that your management did not report that matter to the police immediately; correct?---That’s right.


5

10

15

20

25

30

35

40

45

In fact, that was said to be by the Commissioner when you learnt about it a breach of the mandatory reporting obligations that they had as departmental members; correct?---Yes.

And that was unacceptable to your mind?---It was.

Thank you. In relation to the matter of Tasker my client was 13 and 3 months when Mr Tasker was charged with an incident related to when he was 13 and 3 – when Mr Tasker was charged with aggravated assault upon him; correct?---Yes.

And you gave evidence for the defence in those proceedings; am I right?---I did.

Now, in relation to that, you also spoke openly to the press and defended your Youth Justice Officer in the media; am I right?---If you say. I don’t recall doing that media, but if I did, I did.

Well it’s a matter of public record, sir - - -?---Yeah.

- - - and I suggest that that’s the case. You spoke to the ABC media when the matter was afoot?---Well, I spoke to the media on a regular basis. So if it was a media event, I take it I spoke. And I do recall, sorry, there was an ABC – I think it was a 7.30 Report coverage on that, and I remember – I do remember doing an interview with that. Yes.

And you are aware that in relation to those proceedings the police had enormous difficulties obtaining footage regarding the incident?---Yes. But that really wasn’t brought to my attention till very late in the piece and by that time they had that information. But I also know that was – there was difficulties with that – with that recording system trying to get information extracted from that.

And you’re aware that the Children’s Commissioner has suggested in no uncertain terms that staff under your – under your – staff who were employed by the Department had given false information in statutory declarations and affidavits related to that – related to the provision of footage to the police?---I know that the Children’s Commissioner made those comments. Yes.

And you know that – and you know that in relation to that matter, the police eventually did get the CCTV footage but it came almost one year after the incident had taken place?---Yes. I know that now, but, I mean, no one approached me and asked me about that. I mean, we would have despatched somebody and I would say this: I don’t think the staff are trying to cover something up. If they were, they could have easily erased that footage off the system.

Let me – you know that the Children’s Commissioner was eventually provided CCTV footage from the Professional Standards Unit?---Yes. I understand that.


5

10

15

20

25

30

35

40

45

And you’re aware that when the police went to subpoena the very same email from the PSU the footage had been deleted?---I’m not aware of that.

Well - - -?---I understood that the footage was provided to the police and I know we got quite a bit of criticism from the magistrate doing it over the supply of that footage.

Yes. I want to tell you the source of that information. That was the evidence that the officer in charge of this investigation gave to Magistrate Trigg in the Tasker prosecution. Do you understand that?---I’m not sure how it come about but I know that we got criticised by Mr Trigg.

A moment ago you suggested you don’t believe that the staff in your office did try and withhold or conceal information from the police in this investigation. I’m going to suggest to you that’s exactly what happened?---I don’t think they deliberately did and I think if they were trying to do that they would have deleted it off the system.

In any event you are aware that there have been very stern allegations levelled against the officers in your department in relation to that investigation; correct?---Yes. I am aware of that.

Now, you’re also aware, I imagine, having, I would hope, examined the judgment of Magistrate Trigg that there were very significant problems that emerged in relation to the documentation as to what had occurred on the day of the incident; correct?---Yes. That’s right.

In fact, the magistrate was so unimpressed with the material that had been produced by your office in relation to the incident that he was unable to place any weight on the credibility or veracity of the material. That was the effect of his judgment pronouncement, correct?---It wasn’t my office that did that. That was our Department and it was the Alice Springs Youth Justice Centre.

Well, quite contrary – to the contrary, I want to suggest to you that that was material produced from your office on a subpoena from the prosecution?---From the public – from the professional standard unit.

From there or from your office?---Well, it wouldn’t have been from my office. I mean, I didn’t hold records like that. It would have been from the Professional Standards Unit.

There were difficulties in relation to the dates and times and alteration of those, according to the judgment?---That wouldn’t have come from my office.

There were – he found numerous errors and inaccuracies in relation to the documents as to what had taken place on that day relating to my client?---I think he’s talking about the reports at the detention centre level.


5

10

15

20

25

30

35

40

45

Yes.

MR TIPPETT: We have – I just rise to some concern. A document has been cross-examined upon. The witness should have access to the document, be taken to those areas. I don’t have the document in front of me, but it’s just a concern about getting these things right, departments – whether the allegation was in relation to his office, the department generally or what have you.

COMMISSIONER WHITE: This is a public judgment, as I understand it.

MR TIPPETT: Of course, it is.

COMMISSIONER WHITE: If there is any mis-nomenclature about department and office then perhaps that could be corrected, Mr O’Brien, if that’s the gravamen of your objection, Mr Tippett. Otherwise it’s a judgment that should be readily available.

MR TIPPETT: That and the opportunity of the witness to go through. Of course it’s a public document, but it’s not his document and the last time the witness may have had reference to that document is quite some time ago. You’re asking a witness to deal with a document and its contents from memory. In my submission that’s unfair.

COMMISSIONER WHITE: Well, he is not doing – Mr O’Brien is not asking him to do anything from memory. He’s putting certain propositions that were part of the findings of the magistrate in the judgment which relate to the operation of an essential part of the Corrections Department. Mr Middlebrook doesn’t have to have known about it before. He’s just going to be asked some questions, I suspect, at the end as a result of these findings. Let’s see where it’s going, Mr Tippett.

MR TIPPETT: May it please.

MR O’BRIEN: So we are talking about documents that came from the Aranda House detention centre itself, you understand?---Yes.

And he found that there was information contained within incident reports which were plainly inconsistent with the CCTV footage, didn’t he?---I’m not – I’m not – I can’t recall those but I do know that he was – he was critical of documentation but he found Mr Tasker not guilty.

Well, leaving that aside, that’s not what I asked you about. He said:

The documents and records of the Youth Detention Centre are not particularly complete nor accurate.

That was his assessment?---And I would agree with that.


5

10

15

20

25

30

35

40

45

Yes. Now, in the report that you came to receive from Howard Bath documenting all – in each of these instances that you did in April of 2012, there was a similar commentary; that the documents in the reporting had not been accurately – or done with any level of precision; correct?---Yes. That was the pretty common theme.

And yesterday we heard from the Minister, the previous Minister, Mr Elferink, your superior, who told the Royal Commission that he was contacted by Dr Bath on 23 August and several days after that met and received a draft report which was the same one that you had – you had been advised about in April 2012. You heard his evidence?---Yes. I did.

Now, he says that he contacted you and you were told that it was a historical set of information and had been dealt with?---We were dealing with it.

And you see, the very same problems in relation to documentation, in relation to staff training, in relation to excessive and questioning the lawfulness of isolation were raised in those reports as were raised in almost two years earlier, almost two and a half years earlier with you; correct?---Yes.

But they were ongoing and you knew that these things were not historical because they related in some way, at least isolation was related, the use of isolation was related to the gassing incident; correct?---And we were dealing and trying to manage those things.

By coming to that involvement you had with Mr Tasker in the prosecution of that case and you’re giving evidence for the defence in that matter, do you understand that that at least gave a view to the public at large that you were partisan in protecting the staff in these sort of incidents as against assisting in the welfare of the children?---Yes. I was aware of that and also Mr Tasker was doing what he was instructed to do by his superintendent and I felt an obligation to support him with that.

And you’re aware that notwithstanding those two judgments by Magistrate Trigg and by Barr J, the Children’s Commissioner still determined with the assistance of expert advice that the exercise of force by Mr Tasker was unwarranted, excessive and dangerous use of force against Dylan Voller.

MR TIPPETT: Well, I object to the question because it brings into question decisions of two courts of the Northern Territory in relation to that matter.

MR O’BRIEN: Well, it doesn’t at all. It accepts the premise that they were made.

MR TIPPETT: Well, please. I will finish my objection. I won’t be a moment. And that he should not be permitted to go behind that – and at what point – Mr Middlebrook has these two decisions on the record as Commissioner. He’s not entitled to go behind either.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: I’m not sure about that, Mr Tippett. This is about responsive conduct by the Commissioner. There may have been different – another body of evidence that Dr Bath saw that wasn’t before the court. They’re not questions about going behind the judgments in the way that it’s understood in the courts. This is for a different purpose altogether so the objection is not upheld.

MR O’BRIEN: Do you want me to ask the question again?---Yes, please.

So the effect of the question was the Children’s Commissioner had the benefit of these two judgments in relation to Tasker and had the benefit also of experts who they – who he had commissioned to examine the footage and concluded that there was an unwarranted excessive and dangerous use of force in this instance against Dylan Voller?---Well, I considered that both Magistrate Birch and Barr J had the benefit of experts as well and I accepted their – their ruling on that particular incident.

Well, I’m going to take you up on that. Neither of them heard evidence from experts. Do you understand that?---Well, I accept the ruling of both the Local Court and the Supreme Court.

This Royal Commission has had the benefit of experts in relation to this and Mr De Souza says this was totally inconsistent with PART principles which should have been exercised by the youth workers in restraining children?---With the greatest respect, Mr De Souza wasn’t there on the night and I was supporting Mr Tasker basically because he was doing what he was instructed to do by his superintendent. You know, we effectively changed some of the practices after that. And, you know, if you’re asking me about whether I was totally happy about that particular incident, no, but Mr Tasker did what he was instructed to do by a senior officer.

You did something after the incident or after the judgment - - -?---No. No.

- - - because there’s a very big time gap between?---No. I asked for a review of the at-risk policy, and the at-risk policy was reviewed right across for both adults and juveniles.

Mr – sorry – Dr Bath has said that you were overly focussed, overly focussed, with the criminal response as opposed to looking at, quote:

Issues as to whether they were ethical, culturally appropriate, harmful to the young people or complied with internal policy, training, accepted best practice in Corrections or human rights obligations.

That’s a fair call against you, isn’t it?---That’s Dr Bath’s opinion.

Because no action was taken in relation to Mr Tasker was there?---No. There was not.


5

10

15

20

25

30

35

40

45

No. I want to ask you about Mr Knipsel. Mr Knipsel slapped Dylan Voller to the face, causing him to fall to the floor; remember that?---Yes. And he was stood down.

He was – my client, Dylan, was 13 and a half years of age?---Yes.

You have seen the footage?---Yes. And Mr Knipsel was stood down immediately. And, from memory, I think it was referred to the police as well, I think.

Knipsel, in fact, was working within two years of that incident back with the department as a Youth Justice Officer, sir?---And I didn’t approve that.

You actually didn’t even know about it?---I didn’t know about it. No.

Well, that’s an absolute disgrace?---Well, you know, I mean, I don’t know how that happened. It fell through. And I agree with you; it should never have happened. But it certainly wasn’t with my sanction.

Well, it happened under your watch?---Well, it happened, but it shouldn’t have happened.

Yes. In fact, he was working with Dylan Voller in the years after this event, after he slapped this child to the face, a 13-year-old child who fell over as a result of the force being used?---Mr O’Brien I had an Executive Director, a director, and an assistant general manager. It’s a little sometimes when you’re sitting, looking over the global issues of the department. Let me finish, please. It’s difficult to have your finger on the pulse and everything when there’s so many things happening in the organisation. Now, I wasn’t happy that that happened. It should never have happened. And, you know, I’m not sure where that finished, but I think it was certainly a problem in the way that Mr Knipsel was re-employed.

You said a moment ago that he left the job. You know that not to be true, don’t you?---Who left the job? Mr Knipsel?

Knipsel?---No. We – I think we suspended him, from memory.

Yes. But I just told you he was back at work within two years?---Well, but - - -

MR MORRISSEY: You didn’t say he left the job, I think. I don’t think he said he left the job. I think they said they stood him down.

THE WITNESS: We stood down - - -

COMMISSIONER WHITE: .....

THE WITNESS: - - - and I understood there was a disciplinary process or – no. He was charged with the police. But I don’t think he was convicted. I’m not sure of


5

10

15

20

25

30

35

40

45

what the circumstances were. I can’t quite recall it, but I certainly didn’t employ him back.

MR O’BRIEN: Yes. Well, On 4 October 2011, Mr Tasker was involved in another incident with two other youth officers at the Alice Springs Youth Detention Centre which came to be considered by the Children’s Commissioner. Are you aware of that?---Can you just refresh my memory on that.

This is – can we have those photos shown to the witness. This was the incident where three officers came into the cell, again put Mr Dylan Voller to the floor, this time Mr Tasker had Dylan’s arm upstretched and in an awkward position. On this occasion, again, he was stripped naked. Do you remember the incident? Can I show you some photos?---Yeah, you might – look, I’m – I don’t actually recall it, but I know that Mr Voller would often threaten self-harm and had a propensity to spitting on the staff.

Now, I show you the set of photos, so that you’re clear that we’re talking about the right incident just so – just in fairness to you. There’s no need for them to be shown on the screen. I think everyone else is with us as to what we’re talking about. Are you with me?---Yeah.

Yeah. So you understand that, again, the Children’s Commissioner commissioned an expert and the Children’s Commissioner agreed with the expert in finding that this was a further example of inappropriate force being used against a child during an at risk procedure. Do you remember that finding?---Yes, I do recall - - -

You agree with that finding?--- - - - the report. Yep.

You agree with that finding?---I don’t know whether I agree with the finding but, you know, I’m – you know, when you’ve got a difficult situation and somebody is threatening self-harm these young people – it has got to be – they’ve got to be managed, they’ve got – their safety has got to be protected.

They’ve got to be managed in an – in a humane and not in a cruel way; am I right about that?---I agree that. But, you know, I believe that they’ve got to be protected sometimes from their own actions.

And when an expert says, and when the Children’s Commissioner says it was inappropriate force being used during an at risk procedure, are you prepared to accept that or not?---Depends who the experts is. I’m not sure now who Dr Bath had used as an independent expert.

The expert was a Mr Unger, who was training your – training your staff, including the trainers of your staff?---Well, I hadn’t heard from Mr Unger, and I’m not sure. I remember the report from Dr Bath, however.


5

10

15

20

25

30

35

40

45

And in relation to the report from Dr Bath, which you were to learn about in April 2012, he regarded this as a systemic problem?---I think it was the difficulty in dealing with one side.

You at that stage, sir, were in charge of a youth detention system that was traumatising and re-traumatising children who threatened to kill themselves or hurt themselves, weren’t you?---No.

I want to ask you about isolation. You said in your evidence earlier this week that the problems in the – at the BMU and children being held within the BMU was principally a problem around August 2014. Do you agree with that?---Yes.

Now, are you aware that in April of 2014 between 9 April and 28 April 2014 my client was held 19 days in the BMU?---I’m not aware that was consecutive, if that was consecutive.

He was held further from 15 August 2014 to 21 August 2014, a period of six days in the BMU?---Again, I’m not aware of that if it was consecutive.

I’m suggesting, sir, that they were consecutive periods. Were you aware of that?---Well, is there – have you got any documents that have got my approvals with that or any emails that suggest I approved the – the extension of any placements?

No. Because, sir, what I’m suggesting to you is that the view of the staff working under you is that they didn’t need your approvals to roll these over under intensive management plans?---That’s not correct.

Yes. In fact, you gave evidence earlier this week that you didn’t understand that your directives were being used as IMPs keeping these kids isolated locked up by themselves day after day after day; is that the case?---Well, there was no evidence that – during some of the audits being done, but the problem with that was there was insufficient records as well.

Again, the record keeping was substandard; right?---Yes, I accept that.

So all the way from 2010 when Magistrate Trigg had an opportunity, looking at documents from that period of time, all the way to 2014, the documentation system didn’t improve, did it?---No, it didn’t.

Systematic failing, isn’t it?---Well, it’s – you know, it’s about resourcing.

Well, when does the ever buck stop with you, Commissioner?---Well, it’s – I tried on many occasions to try and get the youth justice system properly funded.

I see you shielding a lot of responsibility, avoiding a lot of responsibility, pointing down and pointing up, but not ever copping it sweet?---No, I – that’s not true.


5

10

15

20

25

30

35

40

45

Your approach to management damaged these children Commissioner, I suggest?---That’s your opinion, Mr O’Brien.

You were in charge of a depleted and dysfunctional juvenile justice system, and you knew it at the time, and you tried to avoid taking any responsibility for it?---That’s incorrect.

The questions put by learned counsel for CAALAS is quite apt: as soon as there was any criticism you went into attack mode, didn’t you?---No.

I want to ask you about the restraint chair?---Safety chair.

It’s restraint – that’s right, you called it a safety chair, you changed the name, didn’t you?---Yes, I did.

Yes. No reason for that other than to conceal the real use for it?---No.

It restrains children, does it not?---No. It’s a safety chair to be used – and I put some – you can see there’s an email back to Ms Nobbs for the use of the chair and how it was to be used.

The nomenclature of the chair itself doesn’t matter, because what this chair does is, when you see it in a picture, both confronting and disturbing. Do you accept that?---It is. There’s no risk about that.

And you would have seen that the majority of the Australian population, or at least a large portion of them having seen it on Four Corners, thought the same thing; am I right?---Mr O’Brien, I would prefer to be criticised for that than having to front up a coronial to tell a Coroner why I didn’t take action to prevent somebody taking their own life.

Yes. You’re aware that they don’t use that chair in any other State or jurisdiction in this country except here?---I’m not – I don’t believe that.

Did you – for children, you think they use it elsewhere for children in this country, do you? Where?---Look, there’s a lot of methods that are used, and a lot of – we’re probably the only jurisdiction that’s got very poor infrastructure.

Did you, as the Commissioner, ever go and have a look at any empirical research as to the risks of this chair on children who are already traumatised and threatening to kill themselves?---No. But I can tell you from my knowledge that chair has only been used on four distinct people, two adults and two juveniles.

I want to suggest to you that the use of this chair, and the use on children, was callous and it was cruel?---It was for safety.

It was inhumane and it was degrading?---It was for safety.


5

10

15

20

25

30

35

40

45

It put some of the most fragile and vulnerable children in your care in a position of more and more psychological and mental damage?---When you try to get a young person into support in early hours of the morning and the hospital tell you, “This is not a mental issue, this is a behavioural problem, go back and manage it,” you haven’t got too many options. You know, I’m not really in favour, either, of a whole heap of officers or a couple of officers trying to hold somebody down who’s trying to self-harm. I think that in itself is more traumatic than sitting somebody in the chair, having an officer sit there talking to the person while they’re there, calm them down, and then allow them out. Now, it doesn’t look good, I know that, and one of the reasons I put into Ms Nobbs some fairly strict guidelines around using it, because I didn’t want the attitude that people would use the chair without some constraints.

Now, in March of 2015 my client was taken to an adult prison and that chair was – he was placed in a chair like that with a spit hood over it; you’re aware of it? You’ve seen the - - -?---He was threatening – he was – threatened to break his arm.

Yes. He hadn’t actually threatened – he hadn’t actually hurt himself by that stage, had he?---But he was threatening to do so.

And he did it how many times? He said it once, didn’t he, “I’m going to break my arm”?---I’m not sure how many times. The report to me was he threatened to self-harm.

And you – did anyone think at that stage, “Look, we’ve got to – he’s threatened to self-harm, let’s take him to hospital”?---I’m not sure what the circumstances were, but he threatened to self-harm and that’s what they did.

Do you think that that might happen from time to time with children threatening to hurt themselves, where you might not put them in a chair?---And we did do that.

You didn’t do it on that occasion?---No, but - - -

He threatened it once and he was in the chair?---Just keep in mind that the Alice Springs Correctional Centre is 26 kilometres from town and, in the middle of the night, it’s not that easy - - -

Inconvenient, was it - - -?---No. But - - -

- - - to .....?---It’s about staff, available staff.

COMMISSIONER WHITE: Mr O’Brien, that was not a call for comment.

THE WITNESS: You know, it’s easy – it’s easy in hindsight, Mr O’Brien, to make some of these comments. But when you’ve got a young person threatening self-harm in the middle of the night, you’ve got a finite group of resources inside the prison, it might have been at that period of time, that night senior had difficulty in trying to call on initial staff to deal with that. It’s a problem.


5

10

15

20

25

30

35

40

45

MR O’BRIEN: I’m telling you, sir, he threatened to break his arm once and within 10 minutes of that he was in a chair, that’s it?---That’s not the advice I was given.

Well, that material is before this Commission and that can be a determination for the Commissioners. Do you understand that?---Yes, I understand that.

I want to suggest to you, sir, that your time as a Commissioner, so far as it related to children in detention between the years of 2012 and 2015, was an abject failure?---That’s your opinion, sir.

I want to suggest to you that you have not, in any way, been able to accept responsibility for the obvious and ongoing failings that existed within that system under your watch?---Mr O’Brien, I think there’s a lot of evidence there to demonstrate I did try to do things in that period. I did try with Government to get resourcing. You know, it’s easy to make those comments, but when you’re trying to deal with this, with lack of resources and everything that was going on in the Department, you know, it’s easy to be critical two or three years down the track, but we did attempt to make real changes in the youth justice system.

I want to suggest to, last of all sir, no matter how Dylan Voller behaved, no matter what he did, on each of those instances where the Children’s Commissioner has found in his favour and in relation to the use of that chair, none of it – none of it was justified or appropriate?---I don’t agree with you.

COMMISSIONER WHITE: Thanks, Mr O’Brien.

MR MORRISSEY: I would like it to be noted that Mr O’Brien finished right on time.

COMMISSIONER WHITE: I noticed that too.

MR MORRISSEY: And cut his topics down to suit the Commission.


MR MORRISSEY: We express our gratitude to him for that.

COMMISSIONER WHITE: We are most appreciate, Mr O’Brien. Thank you.

MR O’BRIEN: I’ve been doing it all week.

COMMISSIONER WHITE: So there’s a challenge for you, Mr O’Connell.

MR O’BRIEN: He won’t need it.

<CROSS-EXAMINATION BY MR O’CONNELL [5.44 pm]

.ROYAL COMMISSION 28.4.17 P-3376 K. MIDDLEBROOK XXN©Commonwealth of Australia MR O’CONNELL

5

10

15

20

25

30

35

40

45

MR O’CONNELL: Mr Middlebrook, my name is O’Connell?--- .....

I appear for a child formerly in detention who goes by the pseudonym AN. I’ve given you a piece of paper. You aware who that is?---Yes. I’m aware of that, yeah.

I ask to be brought up on the screen exhibit 283.282, the second page only. You will see – I would ask you to read at the very bottom of that page?---Yes.

5.3?---Yes.

You’ve read that?---Yes.

Now, these are parts of a record of an Executive Directors meeting?---Yes.

Normally held on a Tuesday at 9 am.

Monday mornings normally, unless it was a lopping weekend.

Normally 9 am, would finish around 1 pm?---Yeah, that’s it.

I’m going to ask you a series of answers – sorry, a series of questions that require a yes or no answer. I will give you some more time to explain later, but would you agree that – well, you will have to take my word for it, that’s all that’s mentioned about that particular person in this record of this meeting. Would you agree that it shows no discussion about how to respond to what’s raised?---This is a brief meeting from an executive meeting, so it is only brief?

Yes?---Yeah.


And you agree that, at the end of the meeting, you and the Executive Director knew that mental health believed she should not be in detention and she should be in a mental health facility?---Yes.

And you both knew that your staff were not specifically trained in relation to mental health issues?---No, that’s right.

And you had general concerns about their training as well?---Yes.


As Commissioner, did you take any immediate action in relation to that?---I had a discussion with the chief executive of health, because we had difficulty in trying to


5

10

15

20

25

30

35

40

get some professional people to treat this young person, and it required my intervention to get the CEO of health to push from that area down. I mean, I think there was – there was an example where the staff had taken this young person to the Darwin Hospital and - - -

I will just stop you there?---Yep.

Mr Middlebrook, I have a very limited time, I would ask you not to give examples?---Well, to answer your question, yes, I intervened.

And you intervened by contacting - - -?---CEO of Health.

- - - the CEO of Health. Would you agree that, at that stage she needed to be treated very carefully?---Yes.

And that staff needed to be careful not to escalate unnecessarily her condition?---Yes, and I believe the Executive Director met with staff to put some management plan in place for that very reason.

Do you know when that meeting took place?---I – I thought it was around about the time we had the Executive Director, like this meeting for these minutes. I thought it was preceding that at some stage.

Because you agree that it was a matter of urgency?---Yes.

I’d like to show you some footage, and I would ask – it’s only going to be played to you and the Commissioners and I would ask you to turn your screen to face away from the – if you could. Before that footage – I would ask the footage not be played yet. I will just give a brief context. It’s some CCTV footage of my client shortly after she was placed back in an at risk cell, [REDACTED INFORMATION]

I would ask that footage be played now. I note, Commissioners, that this footage is already an exhibit, however it’s a confidential exhibit and I also note, Commissioners, that this is an excerpt of some longer footage which I understand is also an exhibit. It’s an excerpt of the one exhibit. Have you seen that footage before?---No, I don’t recall that.

Okay. Without identifying anyone in that footage, would you agree that you can see my client AN leaning on the door to the cell?---Yes.

And you agree that she doesn’t appear to be acting aggressively?---No.

And would you agree that you see a Youth Justice Officer suddenly shove her around the chest area?---Yes, I do.


5

10

15

20

25

30

35

40

45

And it looked quite aggressive?---Yeah. One of the problems with this, of course, is not having audio.

Yes?---Having just the video, sometimes it’s difficult to get a full appreciation of actually just what happened, but that is the first time I’ve seen that, and to me it appears that there was, you know, unnecessary use to push the young lady back there.

Yes. And she appeared to react in pain to that?---It appears that way, yes.

And I will just mention that she had stitches around that area from an incident not long before that. It’s an action that’s hard to justify in any circumstances?---Yeah. Look, I – yeah, I’ve got no explanation for that.

And when you’re dealing with a child in the middle of an acute mental health episode who has accepted self-harm on a number of occasions in the days before that, it’s disgraceful treatment, isn’t it?---Well, it’s not good.

And if you had known about it at the time, would you have disciplined that particular guard?---Yes. It’s hard to – I was trying to get an identification off that and I think the trouble with those videos - - -

Again, I would ask not to identify?---Yes. Sorry. But no, I couldn’t identify the person. I think it would be difficult to identify the person.

Yes?---That’s not good – the video footage is not great quality.

And she went on after that, and this is not in the footage that you’ve seen, to damage the cell and attempt self-harm again. Would you agree that this is an example of conduct by a Youth Justice Officer that escalated behaviour?---Look, what I’d agree with is it just shows that we’re ill prepared to deal with some of these young people with severe mental problems. Now, you know, I just disagree with the professionals at the hospital that said this young lady wasn’t – didn’t have mental - - -

Again, restrain – we’re straying away from?---I know – but, I mean, this is the problem. It’s a difficult area when you’ve got challenging behaviour - - -

Alright. But I just – the question is: would you agree, though, that that kind of conduct by a Youth Justice Officer is an example of conduct from Youth Justice Officers that result in escalation?---Yes, I – I would agree.

And how could that happen when both the Executive Director and the Commissioner knew, at that time, the vulnerable position the young person was in?---I – I believe we made a number of attempts to try and get that young person to the hospital or into some other place. I – I’m not sure but I think there was an attempt to even try and get that person interstate to a professional service, and we had some difficulty in trying to achieve that.


5

10

15

20

25

30

35

40

45

Now, you – you then had – a couple of days after that there was an email exchange between you and Minister Elferink’s senior adviser; is that correct? And there’s a document I’ve put on the table?---Okay. Sorry.

MR MORRISSEY: While that’s being looked at, could I tender as a confidential exhibit the excerpt that was just played?

COMMISSIONER WHITE: Yes, very well. That’s exhibit – it has to have a confidentiality marking.

EXHIBIT #328 CONFIDENTIAL EXCERPT OF CCTV FOOTAGE

MR O’CONNELL: Now, do you recall there was that email exchange where the senior adviser for Mr Elferink was asking for urgent information in relation to my client?---Yes, I do.

Did you have discussions with Minister Elferink about this matter?---I don’t recall talking to Minister Elferink. I recall talking to his adviser.

Okay. And did you ever get a response from the Minister or his adviser?---I’m not sure. I don’t recall.

Now, what happened was my client was taken out of Don Dale for a period of time, but when she was returned there some 10 days later in a stable condition there was no specialised psychiatric treatment ready to go for her, there was no special training of Youth Justice Officers as to the appropriate management and interventions in relation to her. Whose responsibility was it to ensure that those things were in place?---Look, I understand – I remember the period, and I remember – you know, where the young person went. I understand - - -

But if you could just confine your answer to - - -?---Yeah, I know. I’m just trying to – I’m just trying to think. I am sure that this was done in conjunction with mental health services and mental health services were involved in this all the way back, including the transition back to Berrimah.

Alright. But are you able to say who was responsible for ensuring that, when she came back to Don Dale, two things happened: (1) she had psychological, specialist care ready and (2) the guards were briefed up on how they should deal with this?---That would be the general manager of the centre.

And see, what happened on the very day she was returned, she was punished for something and locked in her room then, without any attempt or threat of self-harm, she was placed at risk and forcibly taken to an at risk cell, and the thing is she then – a couple of other things happened which I will touch on briefly, but she then self-harmed again and this was the pattern in the majority of the self-harm, is it was done


5

10

15

20

25

30

35

40

45

in at risk cells, with at risk clothing, and because she was distressed at being placed in that cell. It seems to be a kind of insanity to keep doing the same thing over and over again. Was there any consideration taken to taking an alternative – alternative measures in relation to this particular detainee?---Look, I’m not sure how that was managed. I remember the incident. I do remember it was about that time of my intervention to the CEO of health to assist. But I recall that this incident, with this young person, was dealt with by people from mental health as well as the juvenile staff. I mean, I can’t – I can’t give you anything more in depth on that, because that was the extent of my knowledge.

Alright. That’s fine. I’ve got to be very quick. I’ve only got a couple of minutes left. That same day, when she first came back and she self-harmed again, prior to her self-harming she had all of her clothing forcibly removed by cutting, two female guards doing the cutting and four male guards holding her down?---Yeah.

There’s a memorandum back from 2009 where the general manager says that when you have to cut off clothes, don’t cut off all the clothes: leave the underwear on. From that point of time to this, and the Children’s Commissioner did a report and I’m trying to get a lot – cram a lot in here, where the Children’s Commissioner said that the practice of cutting off all of the clothing had become prevalent, and was being done in almost a frantic manner. How did we go from point A to point B under your watch?---Look, my direction was that they were to keep underclothing on. That was what that direction was.

That was your direction?---That was my direction. But, you know - - -

So if the guards were not – okay, so I won’t take it any further. Finally, the solution – ultimate solution for her was to keep her in a cell 23 hours a day for an extended period with no view, no air conditioning. Did you ever see that cell?---Yes, I was aware of those cells.

And would you agree that there was no view out of that cell?---No. There was no view much from anywhere in Berrimah.

And no air-conditioning?---They weren’t refrigerated air-conditioning but there was like a flow, what do you call it, a mechanical ventilation system in that particular cell block.

And would you agree that that was ultimately that was the only thing that you could come up with to manage her for the duration of her time in custody?---If we couldn’t get her into the health facility at the hospital, there was an attempt to try and manage that by taking her to another location which you have asked me not to disclose. And, I mean, that was limited on the times we could keep her there. It was very, very difficult and she was a very difficult – sorry – the young person was a very difficult particular case and it’s – it highlights the need for, you know, some professional intervention to assist help manage those. I mean, when you have - - -


5

10

15

20

25

30

35

40

45

What did you learn from that?

MR TIPPETT: Let him finish. I think it’s important he be permitted to finish on this point.

THE WITNESS: So what I learnt from that is that we were certainly under-resourced in trying to deal with things and we weren’t an alternative to a mental health situation. I mean, what is missing here in the Top End, and I have heard a lot of evidence about the support we should be giving, but it’s very difficult to get those professional services. Where are they? They’re not in the community. And if one thing, Commissioner – Commissioners, that you achieve out of this is to make sure that governments get the appropriate support for young people, because, you know, it’s very, very difficult. It’s all well and good to be critical but try and get those supports at 2 o’clock in the morning or even on a Saturday or a Sunday. It’s just not there. It’s very, very difficult, and I have to say it’s very distressing sometimes for staff. It’s easy to sit in hindsight and look at some of those instances, but it’s very difficult and distressing for staff too when you’re trying to deal with this and you don’t have the professional support that you need. It’s unfortunate that detention centres and prisons have become de facto mental health facilities and I think that’s something that needs to be addressed.

MR O’CONNELL: Do you recall a Cabinet submission for those types of services being rejected during your time as Commissioner?---I can recall a lot of Cabinet submissions being rejected in things we were asking for to try and to improve the system.

Yes. Thank you. Those are my questions.

COMMISSIONER WHITE: Thanks, Mr O’Connell.

MR MORRISSEY: Can I just raise a matter there. There were a couple of selective cuts to the feed that occurred in the course of that, but could I seek, as I have previously in relation to this detainee a non-publication direction until the transcript is suitably redacted.

COMMISSIONER WHITE: Tidied up.

MR MORRISSEY: Correct.

COMMISSIONER WHITE: Yes. We will do that. That will happen, I hope, fairly promptly.

MR MORRISSEY: Thank you.

COMMISSIONER WHITE: Yes. Now, how are you going?---I’m fine, Commissioner.


5

10

15

20

25

30

35

40

45

Thank you. We haven’t got a lot longer to go, I can assure you. At least I believe so. Now, Ms Lee will be asking you some questions.

<CROSS-EXAMINATION BY MS LEE [6.02 pm]

MS LEE: Not very long. Sir, I have just given you a piece of paper. My name is Lee. AA, AB, and AC, and some information to assist you to place them?---Yeah. No worries.

Now, if the statement prepared by Mr Middlebrook of 3 March 2017, paragraph 85 and 86 could please be put on the screen?---What date was that?

3 March?---Yeah. You don’t need – I have got it here if you want to just go to the - - -

It’s for the rest of us?---Right.

Now, sir, the young people that I represent are the people referred to in that paragraph and they are also people who we have heard the attorney-general and the Minister for Corrections at the time call the worst of the worst and villains?---Sure.

Did you hear his evidence?---Yes. I did.

And you would have heard, then, in his evidence that he said that he used those terms because he based it on information that you had passed on to him?---Yeah. Well, yes. And also there’s flash briefs and – and from his own visits and talking to other centre at the centre he would have gained a lot of that information as well.

Well, that wasn’t his evidence. His evidence was that it came from you?---But I’m telling you that’s where else he would have got his information.

Now, sir, with respect to the young people who were held in the BMU on 21 August – and can I assure everybody that I do not propose to spend too much time on this – but on 21 August those three young people were being held in the BMU?---Yes.

You have already given evidence that you didn’t know they had been there since 4 August and you didn’t know they were being held on this rolling system?---No. No. I’m aware from 7 August when, you know, people started coming in, and I was aware that, you know, there was a regime in place, and as I said in the evidence, I wasn’t involved daily with that regime. I was assuming because I had staff there that those things were being attended to.

And the things that you thought were being attended to were things such as being let out of those cells for exercise?---Yeah. And I’m aware that I signed a letter that was prepared by my staff back to Jonathon Hunyor which suggested they were out of

.ROYAL COMMISSION 28.4.17 P-3383 K. MIDDLEBROOK XXN©Commonwealth of Australia MS LEE

5

10

15

20

25

30

35

40

45

cells for an hour, but I had been assured there was additional time out for showering and things like that. So - - -

You accept now that was incorrect?---Well, I think that was fairly loose but I also understand there was a letter written to the Children’s Commissioner after two NAAJA people were visiting those young people and I understood from that letter that these young people were saying they had access to the Youth Justice Officers and that the Youth Justice Officers were treating them well.

Sir, I’m sorry, I’m going to interrupt you because the question was you accept that that was incorrect?---Well, I accept they were under difficult circumstances, but I want - - -

Do you or do you not accept now that it was incorrect that those young people were being let out of their cells for exercise?---They were let out for exercise but I would accept it was limited amount of time they were let out for exercise.

Do you or do you not accept now that AB and AC – please refer to your piece of paper?---Yep.

Those being kept together in BMU cell 4 were not involved in the incident on 21 August?---But they were involved in the escape of 2 August.

Sir, I will ask you to answer the questions. I have the shortest period of time. I must come last. Please answer my question. My question was those two young people AB, AC, being kept together in BMU cell 4 were not involved in the incident on 21 August?---I became aware of that from the civil matter.

And you became aware of that presumably because also it was contained in the Children’s Commissioner report which came out in August of 2015?---The Children’s Commissioner said that, yes, but it also came out in the civil matter.

Now, with respect to the transfer now. The transfer – if I could have document DAJ0002.0013.0078_E please brought onto screen. Sir, you gave some evidence about transfers. You said people – young people being transferred to the adult facility. You would rely on information from your general manager. Usually, yes.

And also sometimes the chief executive officer. This is Russell Caldwell, Salli Cohen?---The Executive Director you mean? I was the chief executive officer.

Are they the two people?---Yes.

Now, sir, if we can – you can see the whole of this document now. I can take you to halfway down on the first page you will see that you have been carbon-copied into that and it’s an email from Mr Caldwell to a magistrate requesting a transfer of the young people who were in the BMU on the 21st?---Yes.


5

10

15

20

25

30

35

40

45

Now, there are six young people in the BMU on the 21st?---Yes.

You’ll see that she has also included the legislation that was relevant at the time at the bottom of her email?---Yes.

You would accept now that, and I’ll allow you a moment to have a look at that section 154, that AD should not have been transferred to the adult prison because that person was not 15 years of age?---I agree. And - - -

Now?--- - - - the exceptional circumstances of the night before - - -

Sir – sir?---That was an error.

I will also ask that you consider 1541B: a detainee should be temporarily transferred to protect the safety of another person, and so – sorry. Read it together. I don’t mean to mislead you. I’m a little rushed and I’m – that’s carrying over into my question. I apologise. Effectively what it says is that:

If the superintendent of a detention centre is of the opinion that an emergency situation exists, 1 and 2, for the protection of safety of another person then that person may be transferred?---Yes.

Now, knowing what you know now, today, I’m asking this question. AB, AC should not have been transferred to the adult facility on the 21st?---In hindsight, yes.

Thank you. Now, one, you understand that it became apparent and you started to say this before, that the next day that AD who was 14 should not have been transferred and as a result he was brought back to Don Dale?---Yes. He was.

He was put in a secure cell in isolation?---I don’t recall where he was placed.

If document DAJ0002.0013.0725 could please be brought up on screen. This is an email from Mr Caldwell again, though this time it’s directly to you, and says:

Staff have been deployed to retrieve him back to our remaining functioning secure cell.

You would take from that that he was kept in isolation?---Yes. Well, I think - - -

Now, sir, I want to ask you about AA?---Yes.

AA was kept in isolation during the period of 2 June 2015 to the period of 15 June 2015?---Give me those times again.

2 June 2015 to 15 June 2015?---Yes.


5

10

15

20

25

30

35

40

45

At the Darwin correctional precinct?---That’s correct. He was not on his own. There were two of them.

But you would accept that there were two young people - - -?---Yep.

- - - kept in the Darwin correctional precinct at that time; each was in an individual cell?---Yes. They were.

You would also accept that the cells had solid doors and that the only opening was a small grate at the bottom of the door?---Those air – they’re - - -

Air grills?---Yeah. But they have also got – they’re safe cells and they are well-ventilated.

Sir, I’m not concerned about the ventilation. We’re talking about isolation. You said there were two young people there?---Yes. There was.

I’m saying that they were in separate cells?---They were in separate cells [REDACTED INFORMATION]



MS LEE: Thank you. Now, Commissioners, I will be another three minutes. I will try and be incredibly tight with this.

You said that you visited AA during that period that I said he was in detention in the Darwin precinct?---Yes. I did.

And you said that he could have a TV?---In the cell he was in there was a TV - - -

And you said he could be able to access it and watch it?---Yes.

And you agree that was some seven days after he had been placed in that cell?---I think I went there before seven days, in fact, I think I was - - -

I put it to you and this can be resiled just looking at documents later?---Yes.

That you visited him on 12 June 2015?---Was that a Saturday?

I don’t know, sir, but the documents will allow the Commissioners and everybody else to figure that out later?---I made a number of visits to young people when they were in especially sector 5 in those special cells in Darwin correctional centre.

Was that before or after you made the comment to the media that once those two young men were caught again they would be given a Bible and a colouring-in book?---You know, I don’t know.


5

10

15

20

25

30

35

40

45

50

You didn’t give them either?---No. I think that comment was basically the day after the disturbance in B Block, the media visited; I think that should have been towards the end of May. Is that when you have got that comment?

I’m sorry, sir, I don’t have that comment before me at the moment, but it was said, and they were locked into the Darwin correctional centre, and they weren’t given a Bible. They weren’t given a colouring-in book. They weren’t given anything for a week?---They were given a television.

A week after they had been in there?---Well, they – when they first went in they went into the special care cells, and they had a television in those cells.


5

10

And, sir, this is after the email that you sent on 16 September in 2014, after you had commissioned Mr Dave Ferguson to write a report about what, in fact, happened on the 21st and events leading up to it where you said:

Fergy, I visited the kids at about 6 pm and the instructions I gave for last night have only just been adhered to. I have spoken to Salli about the matter and I’m not impressed. I am more convinced that the manner in which we are managing them has contributed in a big way to this problem.

?---Yeah. Well, I would stand by those comments. And, in fact - - -

In fact, the way you managed these young people, particularly AA, contributed in a big way to the other behavioural problems that he exhibited whilst he was in the care of Corrections?---We may have contributed at some point, but I think the fact that this young fellow had real problems before he came to the centre - - -

Thank you, sir.

COMMISSIONER WHITE: I think that’s all. That’s accepted, Mr Middlebrook. Thank you, Ms Lee. Now, we will just have a little assessment. As everyone can understand, we’re very conscious of the fact that it’s a long weekend and that we made some decision, Commissioner Gooda and I, with the Royal Commission staff, that people would prefer to bat on to finish so that they wouldn’t have to come in tomorrow morning. I’m assuming that continues to be the case and I’m mostly concerned, of course, about our transcriber – I cannot, sort of, keep praising her because she would probably go and get a job somewhere else – and our witnesses. So, Mr Middlebrook, are you able to manage?---Yes. I’m right, your Honour. Yes. I’m all good.

Do you want to stretch your legs?---No. Look, I’m good. I would rather bat on. Thanks.

You won’t have to come back tomorrow. That would probably - - -?---That would suit me fine.

Alright, then. I shouldn’t be too careful about everyone else, but - - -

MR LAMBERT: Commissioners, the best is always last; that’s what I was always told anyway.

MR TIPPETT: No, I’m last.

MR LAMBERT: Best. Maybe.

COMMISSIONER WHITE: Very tempting, Mr Tippett, but let’s resist temptation.


5

10

15

20

25

30

35

40

45

<CROSS-EXAMINATION BY MR LAMBERT [6.25 pm]

MR LAMBERT: Mr Middlebrook, my name is Lambert and I appear here as counsel for Dr Howard Bath?---Okay.

Who was formerly the Children’s Commissioner for the Northern Territory?---Yes.

You have been in Corrections approximately 37 years, have you not?---30 – well, I started in 1978, beginning of 1978.

And eight of those years have been with Corrections in the Northern Territory?---I started here in April 2007, and I finished on 12 November 2015.

Was your service in Corrections in the Northern Territory your first experience of a Children’s Commissioner regime?---Yeah. Yeah. I think the Children’s Commissioner was – it certainly started after I started here. It was a new initiative.

Yes. You appeared in 2007 and it started in 2008; is that right?---Yes. That would be about right. Yes.

Yes. And you were aware, were you not, that the Children’s Commissioner was required by statute to inquire as to the plight of vulnerable children?---Yes.

And to investigate any complaints that were made - - -?---Yes.

- - - about those vulnerable children. And would you not agree that essentially the role of the Children’s Commissioner was to try and work with organisations, participating organisations, I think they’re described as in the Act - - -?---Yes.

With participating agencies?---That’s correct.

To resolve any matter of concern with the overall aim of protecting vulnerable children?---I agree. Yeah.

It’s essentially a resolution process rather than a prosecution process?---Well, it should work that way, sir.

There’s no power in the Act for the Commissioner to prosecute, is there?---No. But I think that he could – I’m not sure how that reads now but I think there is – there is avenues for that to proceed to that if he found some wrongdoing.

He has powers to report - - -?---Yes.

- - - to other people but essentially he has no right of his own - - -?---No.

.ROYAL COMMISSION 28.4.17 P-3392 K. MIDDLEBROOK XXN©Commonwealth of Australia MR LAMBERT

5

10

15

20

25

30

35

40

45

- - - initiative to prosecute?---No. No. But he has a right to conduct those investigations, though, by that office, I mean.

Do you recall on 11 April 2012 – I will describe this next section the egg incident?---Yes.

You know what I’m talking about?---I remember it well. Yes.

So on 11 April 2012 you received a complaint by email from Mr Barrie Clee, didn’t you?---Yes.

Do you recall that?---Yes. I did.

And did Mr Clee complain that a member of staff of the Children’s Commissioner’s office had allegedly supplied chocolate Easter eggs to a detainee - - -?---Yes.

- - - at Alice Springs?---That’s correct.

And essentially without permission, you thought, at that time?---Well, that’s what I was told at that time.

Yes. Could document number CCM.0003.0001.4489 be brought up on the screen, please. Could you read that, Mr Middlebrook, and tell me whether that is the email complaint from Mr Clee?---Yes.

Did you later that same day, i.e. on 11 April 2012, email Dr Bath and ask for a meeting to discuss that complaint?---Yes. I did.

And did you subsequently – well, first of all I will bring that up. If you can bring up CCM.0003.0001.4488 which is essentially the preceding page. Thank you. And that email at the bottom of the page, is that your email to Dr Bath?---Yes. Yep.

Did you, in that email - - -?---Can you scroll down? It’s too far.

I think that’s it?---I remember that email anyhow, without - - -

I was going to say, in that email you considered – you said that you were considering banning one of the officers from the Child Commission office?---Can I just see it where I can actually see what I actually said?

On the third line from the bottom. Are you not there?---Yeah.

Threatening to ban an officer from the Children’s Commission from entering detention centres?---For that – without meeting with Dr Bath, and that was the idea of having the meeting.


5

10

15

20

25

30

35

40

45

Yes. Now, there was a meeting held at the Children’s Commissioner’s office the following day, 12 April, wasn’t there?---That’s right.

And at that meeting do you recall you were present with Mrs Anderson from your department?---Yes. That’s right.

And Dr Bath was there together with two of his senior staff?---Yeah. I think he was on leave and he came in for it.

And at the meeting you may recall that you accused one of the Commissioner’s staff of trafficking contraband?---No. I asked them. I said that I had received the report that they had taken chocolate Easter eggs in to the young fellow in Aranda House and I asked them was that correct, because I considered that, firstly, trafficking, and secondly I felt that was inducing the young man that was in there.

And I also put it to you that you threatened to ban that same female officer from access to any juvenile detention centre in the Northern Territory?---I might have said that in that email that I was considering banning but at the meeting with Dr Bath I said that I wanted to know whether it was right; whether in fact she took those Easter eggs in there and I just wanted to – you know, it’s a yes or no whether that happened, and they were reluctant to admit.

I put it to you that you again threatened to prevent her from access to the centres?---I said the consequence of taking contraband into the centre would be banning from the system but I asked the question did they do it, and again they failed to tell me yes or no.

And I put it to you that Dr Bath told you in response that you didn’t have the facts right; is that correct?---Dr Bath said, “If you think that’s right, why don’t you go to the police?” is what he said.

I put it to you he said as a result of you making an accusation of a criminal offence he was intending to report the matter to the police; isn’t that correct?---No. He said – no. He told me to go to the police and I said, “I’m not wasting police’s time. I’m over here to find from you guys whether you did that.” Now if, in fact, he had told me what the circumstances were, that would have been the end of the issue there and I would have had Professional Standards take up the issue with the staff in Alice Springs. But Dr Bath and his staff were reluctant to even tell me what actually the circumstances were of that particular incident.

Do you recall after the meeting, the following day, sending another email to Dr Bath?---Yes. I think I did. I think I have read that somewhere recently. Have you got it there?

I have. Could document number CCM.0003.0001.4490. be brought up, please. Is that the email that you sent, Mr Middlebrook?---Yes. It is.


5

10

15

20

25

30

35

40

45

And could you go to the third paragraph from the bottom of the first page?---Yes.

You there point out that trafficking of contraband is an offence - - -?---Yes.

- - - under the Youth Justice Act?---Yes.

And the last paragraph at the bottom of the first page: is it true to say that there you stick to your guns and say that you were of the firm belief that the term “traffic in contraband” was an appropriate term in all the circumstances of this matter?---Yes. I do.

And then if you go to the second page, the second last paragraph?---Yes.

You say that you will be issuing an instruction to your general manager, Juvenile Justice, to the effect that no staff member from the Children’s Commissioner’s office will take any article into a detention centre without permission?---And really that instruction should have been there from the get-go.

And are you aware that subsequently Dr Bath referred the complaint for investigation, did he not?---[REDACTED INFORMATION]

No. Don’t - - -?---Okay.

Don’t tell me what organisation was involved?---Yes.

But, suffice it to say, did he refer it for investigation - - -?---Yes. He did.

- - - as far as you were aware?---Yes. He did.

And was that investigation eventually concluded to your knowledge?---It took a long time.

And was the upshot of that investigation that the two Children’s Commissioner staff members involved were both exonerated, were they not?---Yes. There was an officer who changed records on the IOMS system, the records system.

I was going to ask you - - -?---Yeah.

- - - was an officer, a youth justice worker found to have falsified the IOMS record?---And I think they had also resigned from the department before the investigation was finished. I think he had seen what was coming and resigned.

He was also found guilty of falsifying a statutory declaration?---Look, I’m not sure what was found out of that but I know that he went.

So the two staff members that you had initially accused from the Children’s Commissioner’s office were totally exonerated?---Yes. Yeah.


5

10

15

20

25

30

35

40

45

Have you since attempted to contact them and apologise for your rather rash actions initially?

MR TIPPETT: I object to rash.

COMMISSIONER WHITE: Yes. I think that can be – that can be withdrawn.

MR LAMBERT: I will withdraw that term.

COMMISSIONER WHITE: Thank you, Mr Lambert.

MR LAMBERT: For your initial actions?---Well, you know, I asked for the meeting with Dr Bath. I mean, one way of dealing with this would have got – been Professional Standards to do an investigation straightaway, but I elected to go over and talk to Dr Bath about it. And all Dr Bath had to say to me, “These officers had – they got approval from the officers.” That would have shut down that part of the argument straightaway; I would have despatched Professional Standards down to do that. But what happened: this went on for months and months and months, and involved the [REDACTED INFORMATION] which ended up in an investigation which cost a lot of money. Now, that could have been dealt with in five minutes with a meeting with Dr Bath.

But they were exonerated, weren’t they?---At the end. Yes.

And they were entitled to an apology, weren’t they?---And I believe I apologised. I believe I apologised to the two ladies involved, because they – we talked about that when they first – after Dr Bath had departed that role, both those ladies came out to have a look through Don Dale and – at the Berrimah centre – and I am certain that I discussed that with them, walking around, because one of the ladies - - -

COMMISSIONER WHITE: Can I just stop you for a minute. I think something’s slipped onto the record that shouldn’t be there, Ms McGee.

MS McGEE: There were two instances. The reference to the [REDACTED INFORMATION] which I am just not certain that I got the second cut. But in any event I will be seeking a non-publication direction in respect of those words.

COMMISSIONER WHITE: Yes. Yes. Thank you. Well, of course, by making the non-publication order about the reference to the words, you’re putting a big flag around it; that’s a bit of a problem.

MS McGEE: I’m thinking the feed has been cut presently, so it is only those in the courtroom, is my understanding on both instances. I appreciate the difficulty having said the words that would have been apparent to those in the courtroom when the transcript came out.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: I think we can trust – there’s a non-publication order for those who have heard it; any reference to [REDACTED INFORMATION] We’re trying to keep that as secure - - -?---I apologise.

Well, perhaps you weren’t told, Mr Middlebrook, so wherever it’s possible we will eliminate that. Thank you, Mr Lambert. You understand it, of course, I know, from your .....

MR LAMBERT: Yes.

COMMISSIONER WHITE: And it’s easy to slip out. It may not be altogether apparent why to some people. Yes. Thank you. I’m sorry I had to interrupt you but I just didn’t want it to get too far into the ether. Now, we were talking about the apology and the two women came to visit the Berrimah centre?---And they were walking around and I was explaining what we proposed to do with the Berrimah centre and, in fact, the comment was made to me, “We will be running a little bit different to what Dr Bath ran this.” And I think we started to develop a very collegial approach with the Children’s Commissioner from that point on. But there’s no doubt we had a very combative relationship with Dr Bath. We always enjoyed a very strong response and rapport with the ombudsman, and –but Dr Bath had a different approach in doing some of these things so - - - MR LAMBERT: If we can just speak about the ladies in question?---But I am very confident that I did offer an apology. If you ask me whether I wrote to them, I don’t believe I did, but I do believe I spoke to them.

Would you have any problem putting the apology on the record here at the Commission?---No. No. Look, I - - -

..... appropriate course?---And I have got – I’m not sure, but I think one of the outcomes of the other agency’s investigation was in relation to that, and I – I’m sort of the mind that we did something officially. Now, I can’t actually recall, but I do recall talking to both the ladies and, you know, I do apologise for that, and I do think, though, that Dr Bath could have demonstrated with us and – or could have agreed or solved that issue in five minutes when we went over there.

Sorry. You answered my question?---Yeah.

And we will move on because the Commissioner explained time is tight. You recall on 20 April 2012 a meeting that occurred between the – between Dr Bath and Mr Shanahan, the CEO of Justice at the time, when you were absent?---Yeah. I was interstate.

Yes. You were absent. Mr Shanahan was there and he subsequently called Mr Fattore and Mrs Anderson from your Corrections into that meeting?---Yes.


5

10

15

20

25

30

35

40

45

After it had started initially with he and Dr Bath and one of Dr Bath’s staff. Do you recall that occasion?---Yeah. As I said, I was interstate, though.

And were you – you were briefed that evening, I understand?---Yes. They rang me and told me about the meeting.

Yes. Were you briefed about that meeting, Dr Bath showing video footage of incidents that occurred to him to be dangerous?---Yes. I was advised that.

Were you briefed about behaviour that he considered to be highly inappropriate - - -?---Yes.

- - - at a juvenile institution?---Yes. I was told that. Yes.

Were you briefed about Mr Shanahan after viewing material agreeing that the behaviour was highly inappropriate?---I was never told that.

Were you briefed that at the meeting or at the conclusion of the meeting Mr Shanahan gave an assurance to Dr Bath that he would make sure that the practices complained of did not continue?---I’m unaware of that. I wasn’t told that.

Alright. I next ask to be put up on the screen document CCM.0003.0001.0997, please.

COMMISSIONER WHITE: What’s the problem down there?

MR ..........: .....

COMMISSIONER WHITE: Can’t find a document with that ID, Mr Lambert.

MR LAMBERT: It’s a copy of a letter from Dr Bath to Phillip Brown, the Acting Commissioner of Corrections, Commissioner, dated 20 December 2012.

COMMISSIONER WHITE: Got it.

MR LAMBERT: Mr Middlebrook, do you recall – it’s not addressed to you, the letter, but do you recall seeing that letter?---I recall it being discussed with me at some time.

Yeah. Do you say – do you accept that that was sent to your department on that date?---Yes. Yeah.

And there is an attachment to that letter, if we could scroll down. Do you accept that that draft recommendation attached from Dr Bath purported to deal with specific physical intervention matters?---Yes.

That he was concerned of?---Yes.


5

10

15

20

25

30

35

40

45

With recommendations for remedy?---Can you just – can you go back and just see the date of that letter?

See at the bottom of the letter the date. 20 December.

COMMISSIONER WHITE: 20 December 2012.

THE WITNESS: Yes. Yes. Yes. I’m just trying to – yes. Right.

MR LAMBERT: Do you recall ever having responded to that letter? Were you aware of a response?---I don’t – I can’t recall it. Have you got one there?

No. I was going to put it to you that there was no response, unless you are aware of one?---That – that period of time is – we became our own department on 4 September 2012 and around about that time Ms Anderson was the acting ED of Youth Justice and I think she was tasked with dealing directly with the Children’s Commissioner. And I have got a recollection that Mr Fattore, I think, was the general manager of the detention centre. There was a task in addressing some of those recommendations with the training regime of PART. I think, I just can’t recall exactly. I think it was something along those lines.

But you’re not aware of a response – an actual response to that letter?---No. I’m not – no. I can’t recall me physically doing a response on it.

COMMISSIONER WHITE: I see it’s the recommendations are described as draft only and open for discussion?---Yeah.

Presumably if, in fact, it was thought that there should be further discussed that would have been taken up and there would be some record of that?---And I think there might have been another report after that, some months after that finalised that. But I – but it was in – I know that – I do remember because I was on leave and I came back from leave and one of the processes that were there that correspondence that was received while I was away, there was in a part of the handover back, we would go through that and the – whoever was relieving me would give me an update on how they actioned that particular documentation.

MR LAMBERT: Might document – another document be brought up; document DAJ.0008.0001.0629.

COMMISSIONER WHITE: Did that one go into evidence, be tendered?

MR LAMBERT: If it’s not in my friend’s bundle, I would ask for it to be tendered. Thank you, Commissioner.

COMMISSIONER WHITE: Yes. Well, that can be – the letter from Dr Bath to the Deputy Director Corrections dated 4 December 2012 - - -


5

10

15

20

25

30

35

40

45

MR LAMBERT: 20 December 2012, Commissioner.

COMMISSIONER WHITE: Thank you. Yes. It is. 20 December. Exhibit 329.

EXHIBIT #329 LETTER FROM DR BATH TO THE DEPUTY DIRECTOR CORRECTIONS DATED 20/12/2012

MR MORRISSEY: We have reached the time limit here, but we’re in the middle of a topic. I just wonder if my friend is seeking a little bit more time.

MR LAMBERT: I am seeking about five to eight minutes, Commissioner. I have one or two other logical progressions.

MR MORRISSEY: It may be, but I wish to be heard on this issue that others have limited themselves, too, who have had matters that are more wide-ranging than that. So .....

COMMISSIONER WHITE: Well, I’m sure Mr Lambert will be true to his word.

MR LAMBERT: Thank you.

COMMISSIONER WHITE: If not he will resume his seat if he’s not finished.

MR LAMBERT: I will be watching the whole time.


MR LAMBERT: You see that letter on your screen, Mr Middlebrook?---Yes. I do.

And that is dated 12 December 2014?---Yes.

Are you responding in that to the draft Voller report prepared by Dr Bath?---Yes.

Could you have a look at the last paragraph of that letter?---Yes.

And read it?---Yeah, I have read it.

It’s out of kilter with the rest of the letter, isn’t it?---Mmm - - -

Rather cheap shot, isn’t it?---No. I’m stating a fact.

COMMISSIONER WHITE: I wouldn’t describe it as a cheap shot. It’s – isn’t it what he was doing, expressing some disappointment that they really haven’t been able to develop a productive working relationship.


5

10

15

20

25

30

35

40

45

THE WITNESS: Mr Lambert - - -

MR LAMBERT: Were you aware that Dr Bath was leaving effectively the office at the end of December 2014?---No. I didn’t get told that very late in the piece. But, Mr Lambert, can I just say to you this: that when Dr Bath first started, we had a meeting, and one of the things he committed to me was that in serious investigations if an investigation was going to take time he would come over and talk to us about some of the issues to give us a chance to start implementing that; similar to what the ombudsman – we had an excellent working relationship with the ombudsman. But this particular report took over two years to finalise and I don’t know how many times I approached Dr Bath in that two years to find out where we were up to and what was happening and the only advice I got back was, “It’s a police matter and you’ll have to wait until I get the report finalised.”

But you didn’t respond. You admitted you did not respond to that letter from Dr Bath dated 20 December 2012?---No. But I – sorry.

Did you not?---Are you saying this is a response to the - - -

It’s the same report?---The Phillip Brown letter

Yes?---Yeah. I didn’t identify them two together. I don’t think that’s correct. I’m not sure.

Well, the recommendation is a recommendation from the same ..... report?---Well, you know, it might be, but this was in relation to the report I think that was issued. I’m not sure, but this was my response back to Dr Bath, but I might have that confused because of the letter to Phillip Brown.

They’re one and the same?---Okay. Well, I take your word for that. But I – one of the problems there is when you’re away and you’re not dealing with it the whole time I guess there’s a break in that chain.

Mr Middlebrook, you regarded Dr Bath and his staff as a bit of a pest, didn’t you?---No. Not at all.

This was your first experience of a Children’s Commissioner regime?---But I didn’t think they were any different to the ombudsman.

Well, they’re another investigating body, and a more specific one, aren’t they – weren’t they?---Yes.

You have never had any experience of being the subject of investigations in your juvenile facilities, had you?---Well, this is the first time I had actually had responsibility for juvenile facilities.

Yeah. Okay. Would you regard yourself as a bully?---No.


5

10

15

20

25

30

35

40

45

Might document number RCN.0005.0006.0084 be put up on the screen. Thank you. Mr Middlebrook, as you can see that is an ABC online news report?---Yes.

Could you go – could the – could you scroll down to page 2 of that report, please. Could you look at paragraphs 5 and 6 on page 2. Paragraph 5 start with:

Asked if he held any concerns.

And paragraph 6 is the one obviously immediately below?---Sorry. Where are you talking?

Paragraph 6, paragraph 5, asked if he held any concerns?---Yeah.

And then the paragraph below that:

I have no concern.

?---Yes.

Now, having read that, would you not agree that times have changed, haven’t they?---The only thing that’s changed is a change in Commissioner.

The Children’s Commissioner according to that article, if you believe that article, would now appear to be welcomed in youth detention facilities in the Northern Territory, wouldn’t she?---And I welcomed the Children’s Commissioner into the facility.

The record, or the evidence would suggest otherwise?---Well, I would suggest to you, Mr Lambert - - -

Do you not agree?---No. I don’t agree. I don’t agree at all. And, in fact, when we were proposing to do Berrimah the acting Children’s Commissioner and her staff were very welcome to come through, and we spent a lot of time walking with the Children’s Commissioner showing and demonstrating what they were doing. But I have to say that there was a strained relationship between Dr Bath and our department. Not just me – the entire department.

He was just doing his job, wasn’t he? Surely you accept that?---But he did it in a difficult way. He didn’t do it that was constructive.

That was your view, wasn’t it?---I think that was fact.

But he was just doing his job?---Yeah. But he could have done his job more effectively if he worked with the department, not against the department. And he was building – I think, from the staff’s point of view, he was building the culture in there that they didn’t particularly want to work with the Children’s Commissioner


5

10

15

20

25

30

35

40

45

yet they were more than happy to work with the ombudsman’s staff. Now, when Dr Bath departed I think that changed.

Do you think he should have asked you how to do his job?---No. I would never have told him how to do about his. But I would have appreciated - - -

Are you sure about that?---Sorry? No.

Are you sure about that?---Yeah. I’m sure about that.

MR MORRISSEY: I think we have reached the end of this particular line.

COMMISSIONER WHITE: Well, I think that this kind of - - -

MR LAMBERT: I have no more questions.

COMMISSIONER WHITE: Yes. It’s getting a bit ragged. Thanks, Mr Lambert.

MR TIPPETT: Yes. I have got some questions.

MR MORRISSEY: Before that happens, sorry, we will do some tendering. I think that’s probably best to do that at the end of this process, and let Mr Tippett proceed.

COMMISSIONER WHITE: Yes. Mr Tippett, you tidy up with your client now.

<RE-EXAMINATION BY MR TIPPETT [6.56 pm]

MR TIPPETT: Yes. Thank you very much.

Was it helpful to get Dr Bath’s report two years after the incident had taken place?---Not at all.

And why is that?---Well, a lot of the things had changed. We had started to make changes but you know, it would have been really handy if Dr Bath had prepared to work with us and give us updates along the way that we could have – and I will use an example: in 2007 we had a very damning report in the Department from the ombudsman on the management of females, but the ombudsman at that stage worked with the Department all the way through and we made substantive changes and that would have been the case had Dr Bath been collaborative like that with us.

Alright. Now, I want to take you through just a couple – a few areas that you have been asked about. The first I want to ask you about is the chair, and you have been quite vigorously cross-examined in relation to that. I want to ask you about what was – did you have in your mind when you arranged for that to be provided to both centres in Darwin and Alice Springs some incidents involving some

.ROYAL COMMISSION 28.4.17 P-3403 K. MIDDLEBROOK RXN©Commonwealth of Australia MR TIPPETT

5

10

15

20

25

30

35

40

45

detainees?---Well, the – the whole concept of the chair was developed from a very difficult to manage young fellow who was a detainee in the youth detention system that was – it was a pretty tragic sort of a case and he ended up coming across to the adult centre. And he used to bang his head on the wall to the extent that, you know, it would start to bleed and he used to do himself some serious injury. Now, when staff attended to – or attempted to hold him down, he was a fairly big fellow, and staff were getting hurried hurt and injured and we were concerned about him injuring himself. So that’s when the chair was first introduced as a safety chair. You know, in Alice Springs in particular it’s not easy to get medical staff in the early hours of the morning and it’s not easy to take somebody that has actually been noncompliant and, you know, sort of being fairly physical themselves into a vehicle to get into Alice Springs, and I certainly wouldn’t agree to put them in the back of a caged vehicle to try and get them in there. So the chair was a safety chair, and as I said earlier when somebody asked me, I would much prefer to be criticised for using the chair than to have to explain to a Coroner why somebody took their own life or seriously self-harmed.

And in relation to these matters there were no mental health facilities, of course, in Alice Springs?---No. And there’s very few resources available at the early hours of the morning or at any time.

And now, in relation to mental health facilities both in Darwin and Alice Springs, you have talked about the difficulties associated with that and in relation to some detainees, was it the case that you were often confronted by the fact that your detainees were not diagnosed with a mental illness after being taken to a hospital and then returned to Corrections’ care on the grounds that it was a matter for Corrections to monitor and control their behaviour?---That’s correct.

And what about – and I’m talking still in relation to the chair. What about the availability of medication in relation to these people? For example, some sort of injection or medication to control their behaviour: was that available?---Well, that’s an issue for health professionals, not Corrections and we needed advice from a health professional but, you know, I don’t think that’s a proper way of dealing with it either. But that’s – I’m not qualified for that, and neither were my staff and neither did we have those people available for us at the times when we needed them.

Alright. Now moving from – and I think that there was also another detainee, a female detainee you had in mind as well in relation to the chair; is that right?---That’s correct.

COMMISSIONER WHITE: I think we have already discussed that in evidence. So probably don’t need to revisit that.

MR TIPPETT: Now, well, we just wanted to establish why the chair was introduced in the first place?---Mr Tippett, I think it’s fair to say that I’m aware there’s only four individuals that have been subjected to that chair and it has all been for those safety reasons. Now, there’s no doubt that there’s probably multiple times some of those


5

10

15

20

25

30

35

40

45

detainees, whether they – there’s two in the adult and there’s two detainees that I’m aware of. I’m not aware of – and I made it pretty clear in the instructions that I issued to youth justice staff about the use of the safety chair, but it was certainly only to be used when there was a real risk of self-harm to the individual.

Alright. Now, can I just move from the chair to the Vita Report. And I just want to – we have talked about this a lot, but I want to get from you just the sequence of events leading to that report. What – what happened, what did you have in mind, and what did you do?---Well, we – we had compiled a series of Cabinet submissions and requests for funding to do a whole range of things within the youth justice system and really we weren’t getting anywhere with it. And once we had the major disturbance at – at Don Dale, I mean, I realised that I really needed – we were – we were past, you know, sort of a crisis stage. I mean, we – it was very, very difficult and what I was looking for, what I was seeking, was to get a – like a professional report that I could give to government to say, “Look, this isn’t me asking for these resources. This is an independent professional person that has assessed what we’re doing, and this is what we need to continue.” And that’s really the reason why we commissioned the Vita Report.

And so the steps in relation to the commission of the report were to get a report from David Ferguson, warts and all?---Well, that was – that came after I decided to give Mr Vita - - -

Yes?---Mr Ferguson had been talking to a number of people, and he and I used to discuss things fairly regularly because we – his office was close to mine and he had been talking to people that he had run into, you know, on a casual basis and they had mention things to him and we decided that would be the best way for him to go and do a warts and all approach so at least they had something for, that was a starting point for Mr Vita when he got to it.

And you, I think, took it upon yourself to contact a person you knew in New South Wales. You were – and because you were aware of Mr Vita being an expert in this area?---Yes.

COMMISSIONER WHITE: That’s dealt with in Mr Middlebrook’s statement.

MR TIPPETT: I beg your pardon?

COMMISSIONER WHITE: That’s dealt with in the statement – the connection there.

MR TIPPETT: Yes. Very well. I just wanted to get the connection clear. Just there’s a bit of - - -

COMMISSIONER WHITE: Well, yes. And I think we know that, and Commissioner Gooda and I have met Mr Vita. We visited him at the Reevy Centre where he’s now working.


5

10

15

20

25

30

35

40

45

MR TIPPETT: Thank you. The only point I was going to – I wanted Mr Middlebrook to make was that, having done that, government became involved.

Is that right?---Yes.

Now, I want to ask you about your relationship with NAAJA. It was a relationship of over nine years; is that right?---Yes. It was nearly the whole tenure of my time here.

And what was the relationship like up until about 2015?---Look, our relationship was very, very good, and I think I said this the other day. My relationship with the majority of NAAJA people right up until I left was good. There was a couple of individuals that I had an issue with, or had an issue with me. But I have got – I think here I supported NAAJA with a funding claim back in March 2015 for a grant they were looking for from the Law Society and there were many things like that that I worked closely with NAAJA with to support them. I mean, I think we had – we had a fairly good relationship and I even at one stage nearly give the Throughcare worker at the prison access to our IOMS system against a lot of advice from my own staff because I felt we had that working relationship to a point where I thought we were moving ahead. I think we – I believed that we always had the same – you know, we were heading in the same direction and we all wanted the same thing.

And alright, now, moving away from that, I wanted to take you to the commissioning of the CBU, and that was taking place, or, at least, you were arranging to get these young people out of the BMU into the CBU as early, I think, as about 6 or 7 August or 8 or 9 August, is that right, in 2014?---Work was happening on that at the time these young people were coming back into custody, but the difficulty with that was – there was two major things: (a) there was the deed of operation between the contractors and the fact that the Territory didn’t own the Darwin correctional precinct. It was a public private partnership. It was owned by a consortium that was made up of a number of international financiers. And to change the deed it meant that there had to be a number of international contacts with banks and everything else to get that agreement. Now, it sounds very bureaucratic but unfortunately that was the process, and it took quite a while and I had – I had – I had agreement in principle a few days before the – before the, you know, the problems that – at Don Dale. But one of the things that was causing a problem for us was that because of the delay in getting the new jail started, there was a number of fairly sizeable abatements that the Northern Territory were applying to the consortium. I mean, we’re talking big, big dollars. The quarterly service payment was a big payment and because of the delay and because of some of the serious problems, there were some serious abatements being applied which the consortium weren’t happy about. And so I couldn’t take for granted that I could move straight into the CBU until I had that documented because I was concerned that I could have put the Territory in a very serious position contractually by doing that if, in fact, we started to move people into the CBU before I had, you know, the signed agreement, then we could have been in a bit of a sticky situation.


5

10

15

20

25

30

35

40

45

And in relation to that, you were attending to all of those matters over that period of time between around about 6 or 7 August through to .....?---It probably doesn’t seem a difficult thing for people, but it was a very intense period in negotiations to make that happen.

COMMISSIONER WHITE: Mr Middlebrook, we haven’t got any doubt about that at all. Especially people who have done commercial law?---Thanks, Commissioner.

MR TIPPETT: Now, look, I’m reminded of one thing. It has been covered by a number of people and an issue that this was, you know, your position that this was a small group of people that were difficult to manage behaviourally and it has been suggested inferentially that that’s an explanation or a justification for the way the matter has deteriorated or deteriorated in terms of youth justice over 2013/14. Wasn’t it the fact that even NAAJA was of the view that problems in youth justice could be ascribed to a small group of people?---Well, I know that the CEO of NAAJA made a comment in The Australian in January 2013 that the North Australian Justice Agency chief executive said there was a group of hard-core offenders and they weren’t going to change, and that – you know, that was a problem recognised and unfortunately for - - -

So that was, you’re referring to – she was referring to a hard group of offenders who were not going to change?---Yes. That was what was put into The Australian.

And you knew that in terms of your relationship with NAAJA that organisation recognised the difficulties that you faced in Corrections in relation to that small group?---I understood that to be the case.

Now, I think, in September of 2014 after the CBU had been commissioned you visited some young youths in Holtze; is that right?---Yes. There was a few incidences. I think there was four or five major disturbances out there. I think there was one particular that was early hours of the morning and I went out and I was quite concerned when I got in when I looked around the personnel that was there. And I – I engaged with the young people on the roof and I managed to get them to come down to talk to me and I walked over with them to the area 5 in the main jail. And I undertook from that point to go and see them every few days and see how they were going and make sure the regime they were in was certainly – well, let’s put it this way, I took a greater interest or a greater – I was more concerned and took a greater interest certainly after the incident at the old Don Dale.

And can you tell the Commissioners why that was?---Well, I was concerned. I had concerns about – you know, about some of the regimes. And in that particular incident that night, I was fairly annoyed because the young people had told me they were watching the AFL and it was, you know, 20 minutes before the end of the game and the youth officers said, “That’s it,” turned the TV off, and put them away. Now, I was very annoyed about that because the response I got back from the assistant general manager was, “Well, that would have cost us overtime.” But the reality was, you know, an hour’s overtime for four or five people would have been a lot cheaper


5

10

15

20

25

30

35

40

45

than the damage that was done. So I took – I made it, you know, part of my responsibility, I guess: I went out of an afternoon to make sure that things were being done that I said I wanted done.

Alright. Now, it was put to you by CAALAS representatives that your approach was really a modified adult Corrections approach, and you said you didn’t agree with that. Why not?---Well, you know, I think I’m the one that pushed to get people out of Aranda House. I mean, Aranda House – the physical condition of Aranda House was really unsuitable to start with. But, secondly, the concept was that Aranda House was funded for a three day week operation and the idea was it was a reception centre with the young people brought to the Top End. Now, I didn’t agree with that to start with, because I think taking people away from country and family is difficult, although I must say one of the difficulties is and the disappointing thing is that there’s not consistency with family contact and a lot of young people who come into custody, I think a lot more needs to be done to connect them with family. But I approached the – you know, the then Minister because the numbers were up as well and the – the block that I had at Alice Springs, because we had opened up the Barkly work camp, we had not commissioned that particular unit and it was an opportunity for us to move from Aranda House but not only get out of Aranda House but also start providing programs in – education and things. It wasn’t perfect, but at least it came a long way from just operating Aranda House.

COMMISSIONER WHITE: How are you going, Mr Tippett?

MR TIPPETT: Well, well, I’m almost finished. I’m - - -

COMMISSIONER WHITE: I was thinking your client is also – no. No. Just keep going. I just really wanted an indication - - -

MR TIPPETT: I’m almost – I’m almost finished. It will be about another five minutes or thereabouts.

COMMISSIONER WHITE: If you were talking 8 o’clock we might have had to revisit things. That’s fine. Thank you.

MR TIPPETT: Now, I want to go to a couple of just specific points. Firstly it’s been suggested today by, I think, Mr Giles that the Corrections budget was increased over the period, I think, by $80 per cent during his government. Do you agree with that?---I think there’s a bit of licence in that, that you know, there’s 60-odd million per year goes to the servicing of the new Darwin correctional centre and, of course, there’s a number of rising prisoner numbers and everything else so the other thing is that new initiatives in the last Cabinet approval process or the budget Cabinet approval process that I was involved in before I finished meant that if you asked for a certain amount of moneys you had to demonstrate where you would make those savings so if you asked for $3 million you had to show where you were going to save $3 million to get the $3 million. So whilst we might have got an increase in budget we also got an increase in numbers, an increase in responsibility as well.


5

10

15

20

25

30

35

40

45

Alright. Now, we’ll move to – I have just got a couple of things. Won’t be long. Now, you were asked about I think from – you were asked about official visitors again, I think, with CAALAS, and you were asked about whether your system was based on child psychology methods, whether it would have been better to have your system based on child psychology methods. You said:

Yes. But –

well, why wasn’t it done at that time? Why didn’t you just introduce child psychology methods?---It’s about having the – the resources to be able to bring in professionals to manage that, but I think also somebody asked me the question about how did we improve the facilities, especially infrastructure facilities in Alice Springs and whilst the Alice Springs juvenile detention centre is not great it’s better than Aranda House was, but what I failed to also talk about there was the introduction of Loves Creek. You know, that was something that the Minister was keen to do. It was an election commitment by the CLP Government but it was sort of going nowhere and when we closed Berrimah we had a number of demountable buildings at the back. Now, I organised the superintendent and some of the staff in the industry, and building staff from the jail to undertake that project and we did that on a very modest budget. We then – I had meetings just prior to me finishing with Corrections. I had meetings with the CEO of the BushMob and I had a bit of a vision with BushMob and Community Corrections we would do assessments on young people and then collectively decide whether young people would be remanded to the detention centre, to BushMob or to a program we could operate at Loves Creek with the traditional owners and elders. I understand from something I read in the press a few days ago about some escapees from Loves Creek, so it looks like that idea has grown legs and obviously BushMob are using that facility, but I think – I have always thought that what we had in Alice Springs – there was a different solution needed at the Top End because I don’t think there’s a one size fits all model.

Alright. And just a very quick point in relation to bail. You were asked some questions and they weren’t developed by Counsel Assisting in relation to bail and problems associated with bail. One of the problems associate with bail, and I will lead you a bit here, is the fact that often young people who have come from a dysfunctional background haven’t got anywhere to be bailed to. They don’t have an address, and they wind up being remanded; is that right?---That has always been a concern I had. If you look at the high percentage of remands and if you look at the numbers that were given bail and in a very short time frame they were either returned for breach of bail or charged with additional offences and I – even though in planning the new prison there was discussion about building a new youth justice centre, I had some real difficulties with building a 100 bed or a 75 bed youth justice centre at Holtze on the same location as the adult prison. I always felt that and I always had a view that we should have had some sort of a youth justice precinct where you have got a small secure centre with a number of cottages in partnership with NGOs and other government departments where it’s a safe place for people to go, but more importantly have the Tivendale School that allows people continuum of education, because, you know, one of the things I think we started to talk about or I


5

10

15

20

25

30

35

40

45

started to talk about was the fact that young people would go into education in Don Dale, and they would be doing quite well, then they would get released and they would either drop out, you know, they would get into trouble at a mainstream school and - - -

COMMISSIONER WHITE: Well, we don’t want to you interrupt you, Mr – you gave that evidence-in-chief, and - - -?---Yes. Okay.

- - - we were much struck by it. We thought there was - - -?---But in addition, too, Commissioner, one of the things that we did try to push and push hard was to get the Mataranka station – Mataranka: it’s a property down the other side of Mataranka – because I was really keen to put into place a young offenders program similar to what we talked about in my previous evidence. And I still think that – I don’t personally agree that we need a big detention centre. I think a lot of the problems are bail and people on remand, and there has got to be a different way of managing that. But I think also you need something where some of these young people have got good community skills, good skills that could lead to some decent employment.

Yes. Thank you.

MR TIPPETT: Now, the last question I want to ask you goes to a question was put to you in a number of parts and it seems to have been part of a collective approach in relation to your evidence, namely that you’re a bully and that was put by a number of people or a couple of people. And this collective approach began with an allegation that you escalated grievances and a number of instances were referred to: Carroll, Ms Carroll, the Easter egg incident, Ms Freels, and Mr Jared Sharp. Now, what have you got to say in relation to that allegation?---Look, I don’t believe I’m a bully. I guess I’m somebody that sometimes wears my heart on my sleeve and I sometimes think that I’m impatient about getting some things done. I’m somebody that was very frustrated in this – in this role in trying to bring change to Corrections in the Northern Territory. I mean, I am somebody that – I’m a career Corrections person. I think I’m not a traditional prison officer with, you know, that thinks, “In God I trust but batons are better.” I mean, that’s not my philosophy and I think I have spent my career and looking for innovation within Corrections. If you look at my career in New South Wales, the mobile camps and the whole range of things that I was involved with and sort of led. And, you know, sometimes when you’re trying to do things in a very difficult environment when you’re struggling with funds and then you have got some – you know, some of your staff aren’t performing like they should perform – I gave an example the other day where I went to Alice Springs and the elders had been sitting outside the jail for an hour and a half, those things incensed me because, you know, it’s difficult enough to get good people to help to you start with, without people actually doing the job properly. And yes, you know, I guess I have been – some of my emails aren’t as elegant as they should be and – but I – at the end of the day I was trying to develop a system to reduce the, I guess, overall incarceration rate and try to give some hope, I guess, to some of the people that were just a product of the criminal justice system.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Thanks, Mr Middleton.

MR TIPPETT: Thanks very much.

COMMISSIONER WHITE: Thank you, Mr Tippett. Now, you have some administrative things you need to .....

MR MORRISSEY: Ms McGee would do it more efficiently than I will, and she will take this.

MS McGEE: Commissioners, it’s just – well, perhaps, certainly there’s no further questions .....

COMMISSIONER WHITE: Mr Middlebrook can be released. Yes. Thank you.

MR TIPPETT: I want to tender that NAAJA, the document in which NAAJA expressed their views concerning the small group of people, Ms Priscilla Collins, the document, The Australian article.

COMMISSIONER WHITE: Well, do you have it?

MR TIPPETT: Yes. We do.

COMMISSIONER WHITE: I think, Mr Middlebrook, could you give that – could you take that document. Thank you. I think Mr Boulten might like to have a look at it before it’s - - -

MR MORRISSEY: Yes, certainly.

COMMISSIONER WHITE: - - - whisked away.

MR MORRISSEY: I will just let Mr Boulten look.

COMMISSIONER WHITE: But apart from that, Mr Middlebrook, we’re going to release you from your summons to appear now. You might think, “Was it ever going to end?”, but it has. And thank you for your graciousness in staying on so long so that people could complete their cross-examination of you. I hope that it hasn’t been too exhausting for you?---Thanks, Commissioner.

And thank you for your assistance to the Commission.

COMMISSIONER GOODA: Thank you?---Thank you.

<THE WITNESS WITHDREW [7.23 pm]

.ROYAL COMMISSION 28.4.17 P-3411 ©Commonwealth of Australia

5

10

15

20

25

30

35

40

45

MS McGEE: Commissioner, just firstly in relation to the tender bundle documents, we have essentially uploaded for these sittings two bundles; the first, we tendered the index which was exhibit - - -

COMMISSIONER WHITE: I just can’t quite hear, Ms McGee. I think you will need to be a bit closer to the mic.

MS McGEE: Is that better? The first was dated 18 April 2017 and was made exhibit 311.

COMMISSIONER WHITE: Yes.

MS McGEE: I tender the remainder of that index, and I have been ably assisted by your associate who has marked those which have already been tendered. I might just provide - - -


MS McGEE: - - - her with that as an aid. I’m also going to hand up a further index which I tender which is the shorter bundle which was dated 26 April 2017. That document has yellow highlighting for those documents which have already been tendered and their exhibit numbers, but rather than individually tendering each at this stage, Commissioner, I suggest simply tendering the index.

COMMISSIONER WHITE: So the index I think should be 330.

EXHIBIT #330 INDEX

MS McGEE: Thank you, Commissioner.

COMMISSIONER WHITE: And so then those highlighted – they have all got their individual numbers, but what about the balance of the documents?

MS McGEE: We will just ask that in the same fashion as with the other indexes those be allocated in time with their separate numbers.

COMMISSIONER WHITE: That will happen administratively and those who have them will be able to work out the system very easily.

MS McGEE: Indeed. It’s the index that was uploaded onto the ER earlier this week to parties.



5

10

15

20

25

30

35

40

45

MS McGEE: Secondly is just to tender a number of responsive statements to some of the witnesses we have heard this week. Some of those witnesses are yet to be called. Some have already been called but it seems appropriate that they be tendered at this stage given their relationship to the evidence that has gone.

COMMISSIONER WHITE: Yes. Certainly.

MS McGEE: So if I could just identify those, Commissioner. The first is statement 178, which is a statement of Mr Middlebrook dated 26 April 2017.

COMMISSIONER WHITE: Exhibit 331.

EXHIBIT #331 STATEMENT 178, A STATEMENT MADE BY MR MIDDLEBROOK DATED 26/04/2017

MS McGEE: The second is statement number 169 which is the statement of Jared Sharp dated 21 March 2017 and its annexure which responds to a statement of Mr Middlebrook.


EXHIBIT #332 STATEMENT 169, A STATEMENT MADE BY JARED SHARP AND ITS ANNEXURE DATED 21/03/2017

MS McGEE: The third is statement 165 which is the statement of Ms Priscilla Collins dated 24 March 2017. Again, a responsive statement and its annexure, I should add.


EXHIBIT #333 STATEMENT 165, A STATEMENT OF PRISCILLA COLLINS AND ITS ANNEXURE DATED 24/03/2017

MS McGEE: Then statement number 174, which is the statement of Dr Howard Bath dated 24 March 2017 and its annexure.


EXHIBIT #334 STATEMENT 174, A STATEMENT OF DR HOWARD BATH DATED 24/03/2017


5

10

15

20

25

30

35

40

45

MS McGEE: And following that is statement 175 which is a further statement of Dr Howard Bath dated 20 April 2017.



MS McGEE: And one final is the statement number 167 which is the statement of Ms Antoinette Carroll dated 28 March 2017 and its annexures 1 to 4. That again is a responsive statement.


EXHIBIT #336 STATEMENT 167, A STATEMENT OF ANTOINETTE CARROLL AND ITS ANNEXURES DATED 28/03/2017

MS McGEE: And I just note for the Commissioners’ information and for the record there are a few outstanding tender issues in relation to some submissions and some responsive statements on behalf of the Northern Territory Government. Those requests have been raised for consideration today and for obvious reasons we have not been able to consider those but we will be attending to those at our earliest opportunity. I note that Monday is a public holiday here in Darwin but I expect Commission staff will be working so we will get to those as soon as we can, noting the deadline for submissions is shortly. So we certainly intend not to deprive people access to any further statements that need to be tendered. And we might invite the Commissioners to deal with those - - -

COMMISSIONER WHITE: Administratively.

MS McGEE: - - - administratively.

COMMISSIONER WHITE: Yes. We will do that.

MS McGEE: I have just been asked: one further article referred to by Mr Middlebrook, the document we have just passed around.

COMMISSIONER WHITE: Yes. I think it’s said to be an extract of an article from a newspaper, The Australian.

MS McGEE: Yes. I’m told it’s already in the bundle.

COMMISSIONER WHITE: Well ..... it’s already .....


5

10

15

20

25

30

35

40

45

MS McGEE: I will just identify it: RCN.0005.0010.0074. I believe that was in the - - -

COMMISSIONER WHITE: That’s the supplementary tender bundle of 18 April?

MS McGEE: I had thought so. I am told 23 April. I think we will be able to find it quite easily on the indexes.

COMMISSIONER WHITE: We will sort – yes. Why don’t we sort that one out subsequently.

MS McGEE: It will be managed administratively in any event from what we have done.

COMMISSIONER WHITE: Yes. Yes. We can do that. Certainly. If it’s already there, then – perhaps, do you need to keep it or is it going to be returned to Mr Tippett?

MS McGEE: We can return it to Mr Tippett. I have one additional tender request which is the Tasker transcript.

COMMISSIONER WHITE: The - - -

MS McGEE: We can deal with that on Monday I think in relation to the residual tender as it might already be there. We won’t further trouble you, Commissioners.

MR MORRISSEY: Might we thank Commission staff, as has become the tradition this week.

COMMISSIONER WHITE: Afraid so.

MR MORRISSEY: It is an astounding effort that has been put on. Can I thank my learned friends also who in conditions of great difficulty have managed to procure an end to the proceedings without bloodshed.

COMMISSIONER WHITE: And thank – yes. Thank everyone, of course, for the cooperation. I explained why we’re doing this marathon sitting, of course, I’m hoping that at least some people if not all might take a little refreshment over the long weekend. Not quite sure how much everyone will get, but some, at least, and again renew my thanks, and Commissioner Gooda also, for our transcriber, who valiantly, amazingly continues for these extraordinarily long sittings without complaint, and you can type that in if you wish.

MR MORRISSEY: Yes.

COMMISSIONER WHITE: It’s – in all my years in practice and as a judge I have never encountered anybody quite like that. It’s quite something. And, of course,


5

10

15

20

25

30

35

40

45

thank our reporters as well. Right. Well, I’m sure there’s something from Shakespeare about meeting at Philippi or something but we will adjourn and resume on 8 May.

MATTER ADJOURNED at 7.31 pm UNTIL MONDAY, 8 MAY 2017


5

Index of Witness Events

ADAM GRAHAM GILES, SWORN P-3224EXAMINATION-IN-CHIEF BY MR MORRISSEY P-3224CROSS-EXAMINATION BY MR BOULTEN P-3262CROSS-EXAMINATION BY MR LAWRENCE P-3273CROSS-EXAMINATION BY MR O’BRIEN P-3281CROSS-EXAMINATION BY MS GRAHAM P-3288CROSS-EXAMINATION BY MR O’CONNELL P-3301CROSS-EXAMINATION BY MS LEE P-3308RE-EXAMINATION BY MR MORRISSEY P-3311

THE WITNESS WITHDREW P-3313

KENNETH MICHAEL MIDDLEBROOK, ON FORMER OATH P-3313CROSS-EXAMINATION BY DR HANSCOMBE P-3313CROSS-EXAMINATION BY MR LAWRENCE P-3324CROSS-EXAMINATION BY MS LEWER P-3347CROSS-EXAMINATION BY MR O’BRIEN P-3364CROSS-EXAMINATION BY MR O’CONNELL P-3376CROSS-EXAMINATION BY MS LEE P-3383CROSS-EXAMINATION BY MR LAMBERT P-3392RE-EXAMINATION BY MR TIPPETT P-3403

THE WITNESS WITHDREW P-3411

Index of Exhibits and MFIs

EXHIBIT #311.018 TOUGH LOVE BEYOND WILDMAN RIVER DOCUMENT

P-3226

EXHIBIT #311.051B MESSAGE FROM THE OFFICE OF THE CHIEF MINISTER

P-3234

EXHIBIT #311.031 REQUEST TO ARRANGE BRIEFING ON YOUTH JUSTICE MATTERS ACROSS THE TERRITORY

P-3245

EXHIBIT #311.033 DRAFT BRIEFING P-3248

EXHIBIT #326 TRANSCRIPT OF INTERVIEW OF ADAM GILES P-3258

EXHIBIT #327 DOCUMENT ENTITLED GOVERNMENT DEFENDS CLOSURE OF YOUTH CENTRE

P-3300

EXHIBIT #311.087 LEGISLATIVE ASSEMBLY REPORT TITLED THE PREVENTABLE DISABILITY

P-3306

EXHIBIT #311.082 LETTER FROM JOHN COLEMAN CONCERNING COLLEEN GWYNNE REPORT

P-3312


5

EXHIBIT #328 CONFIDENTIAL EXCERPT OF CCTV FOOTAGE P-3380

EXHIBIT #329 LETTER FROM DR BATH TO THE DEPUTY DIRECTOR CORRECTIONS DATED 20/12/2012

P-3400

EXHIBIT #330 INDEX P-3412

EXHIBIT #331 STATEMENT 178, A STATEMENT MADE BY MR MIDDLEBROOK DATED 26/04/2017

P-3413

EXHIBIT #332 STATEMENT 169, A STATEMENT MADE BY JARED SHARP AND ITS ANNEXURE DATED 21/03/2017

P-3413

EXHIBIT #333 STATEMENT 165, A STATEMENT OF PRISCILLA COLLINS AND ITS ANNEXURE DATED 24/03/2017

P-3413


P-3413


P-3414

EXHIBIT #336 STATEMENT 167, A STATEMENT OF ANTOINETTE CARROLL AND ITS ANNEXURES DATED 28/03/2017

P-3414


transcript 28 april 2017 web viewalright?i might have made commentary and used the word tough on...

Documents