Abuse and tough rhetoric on crime are part of the same volatile equation, the former NT child commissioner explains. By Martin McKenzie-Murray.
‘There was political support for this…’: Inside the horrors of Don Dale
In this story
In April 1991, the Royal Commission into Aboriginal Deaths in Custody was publicly tabled. The commission had examined the 99 deaths of Indigenous Australians that occurred in the preceding decade. The report stated, in part: “The cases did reveal little appreciation by police and prison officers, and administrations, of the duty of care owed by custodians to those in their care. In many of the cases lack of care was identified as a factor in the deaths. It was also apparent that the investigation of these deaths prior to the establishment of the Royal Commission had usually been perfunctory, and had failed to examine the issues of custodial care and responsibility in the wider sense.”
Six months later, the Don Dale Youth Detention Centre opened in Darwin. It was a maximum-security prison for juveniles, named after the Country Liberal Party’s member for Wanguri, who had died the year before. It would house juvenile offenders until its relocation in 2014 following the tear-gassing of child prisoners. By then, more than 20 years since the royal commission, Aboriginal incarceration rates had almost doubled.
It was the Don Dale centre that was the subject of this week’s explosive Four Corners’ report on the ABC.
Of all of the footage of abuse and squalor aired this week on the ABC, the most shocking – the one that will become grimly iconic – was of 17-year-old Dylan Voller strapped to a chair, his head covered with a “spit hood”. He was kept in this position for more than two hours after, corrections officers say, he threatened self-harm. This occurred last year.
The use of these restraint chairs on youths was the subject of legislation that entered the Northern Territory parliament in April. What was required, the minister for corrections, John Elferink, argued, was a clarifying amendment that precisely defined – and arguably expanded – the use of force available to corrections officers. This amendment, the Youth Justice Amendment Bill, would also clearly circumscribe the use of the chair.
“Traditionally, the reference has been to handcuffs but there are also waist belts, other systems by which you restrain hands to waists, and you can also place legs into some form of restraint strap,” Elferink said.
“When they do play up, they do represent a real threat to staff, and then restraint is appropriate – not only to protect the staff but to protect them and the good order and safety of the institution that they’re in,” he said. “We in this community and in this society accept that the authorities from time to time have to use reasonable force. These things would only be used until de-escalation had been achieved. Now de-escalation is entirely in the hands of the detainee if they’re playing up.”
The legislation passed this May. The territory’s chief minister, Adam Giles, welcomed it. He wondered publicly whether juvenile offenders should be stripped of the possibility of bail. “We try and do the right thing by youth,” Giles wrote on his Facebook page. “Nobody wants to see a kid in jail, but nobody wants to see our cars getting smashed up and our houses getting broken in to. That’s it. Had enough.”
Dr Howard Bath, the previous Northern Territory child commissioner, sees the rhetoric and the abuse as part of the same equation. He has undertaken inquiries into youth detention, and repeatedly raised alarms with the government, with no success. “The context of [this abuse] is harsh rhetoric – ‘let’s be tough on offenders’,” he tells me. “There’s no doubt that there are very high levels of crime in NT. I’ve been subject to it. It’s much more in-your-face than other jurisdictions. But read the responses to online articles. ‘Why are we defending these little shits?’ and ‘Scum of the earth’. International obligations, the law and basic humanity gets swept away in this rhetoric. There was political support for this. Read the press releases.”
The prime minister was sitting down to dinner while Four Corners aired on Monday evening. His phone lit up – “Are you watching this?” He wasn’t. Nor was the federal minister for Indigenous affairs, Nigel Scullion, despite his office having asked the ABC for an advance copy of the program earlier that day. It seemed no one was prepared, and Turnbull irritably ordered Scullion to watch it after it became clear the repercussions of the broadcast would be seismic.
When Scullion did front the media the next day, he made what will become a notorious statement. Previous reports of abuse at Don Dale, he said, had “not piqued my interest”. As Kate Wild later tells me, “it was the most bizarre, out-of-character response”. Wild is an ABC reporter based in Darwin, and has previously reported on the abuses at Don Dale. “I’ve interviewed Scullion a few times and he has one of two modes. There’s the rambunctious Scullion, the one who puffs his chest out if he feels he’s being challenged. Then there’s the knockabout guy, the friendly, up-from-up-here mode. And he has a nuanced understanding of the territory. But it was neither [this week]. I couldn’t fathom his response. He seemed disembodied.”
Something was broken in the political channels, but nothing as broken as what was happening at Don Dale. On Monday evening, the most extraordinary images were broadcast around Australia. For one, there was the facility itself – stained concrete cells of tiny dimensions, rusted infrastructure, desultory grounds. And within that facility were 11-year-olds being beaten; children kept in solitary isolations for weeks; children tear-gassed by men exhilarated by the use of force. We saw trembling children stripped naked, thrown across rooms, pacing circles in their cells like dazed animals. “We’ll pulverise the fuckers,” a guard says. Then, of course, there was the image of Dylan Voller, restrained and hooded, the latter to prevent the prisoner spitting on officers.
“Dylan is overwhelmed by the public support,” his lawyer, Peter O’Brien, tells me. “It’s been a complete whirlwind… Dylan keeps telling me that he doesn’t want what happened to him to happen to others.”
Voller was a notorious juvenile offender, a boy who had committed thefts and assault while high on ice. He was troubled and often threatened self-harm. He first entered the justice system at age 11, and was regarded as difficult to manage. What the Four Corners footage revealed was the years of abuse he experienced in this system, from angry men who were incapable of proper management. There is footage spanning half a decade of Voller being stripped, hurled, beaten and restrained. This week, O’Brien released a letter in Voller’s hand, written with the earnest script of a child. “I would just like to thank the whole Australian community for the support you have showed for us boys as well as our families,” he wrote.
“I would also like to take this opportunity to apologise to the community for my wrongs and I can’t wait to get out and make up for them.”
Speaking to media after the program, his sister, Kira, said: “The last time I went to visit him there was no smile, there was no emotion, there was nothing. I couldn’t give him anything to be positive about and that really broke me. I want him to know he’s still a person and people still love him and he still has hope for a life.”
Within 12 hours of the Four Corners episode finishing, the prime minister declared a royal commission of then uncertain parameters: “This is a shocking state of affairs and we will move quickly to establish what happened. As Gillian Triggs said last night, this needs a thorough inquiry.”
An inquiry, Turnbull said, would “get to the bottom of it, and expose what occurred and expose the culture that allowed it to occur and allowed it to remain unrevealed for so long”.
But what occurred at Don Dale was not “unrevealed”. All of it was already public, and the subject of multiple inquiries. What was different was the footage. “Everything, without exception, has been reported in NT,” Wild says.
Bath agrees. “Virtually everything in Four Corners was already public,” he tells me. “I’ve commented on the footage before. The restraint chair footage was new, but not knowledge of the use of the chair itself. That’s not new. It was the stark vision that has done this. But a number of people have been hammering away to make this an issue. Previously, it hasn’t been. The messenger has been shot, or you hear: ‘You don’t know how hard these kids are.’ But it’s now hit such a raw nerve. I’m stunned. I’ve been hammering on this for years, and never got the traction.”
Mick Gooda, the Aboriginal and Torres Strait Islander social justice commissioner, has called for the dissolution of the territory’s government. He’s not alone. On Tuesday, Indigenous leaders called for the same, and the transfer of children in detention to federal custody. It’s an impassioned request, but a strange one, given the territory government will be dissolved by ballot in four weeks. Territorians go to the polls on August 27, and no one gives the Country Liberal Party a chance of winning. Territorians I’ve spoken with wonder if they’ll retain any seats at all – that the new government may effectively be without parliamentary opposition.
The unpopularity of Giles’s government existed well before the images broadcast by Four Corners made international news. Giles seized the leadership in a party room coup in 2013, while the then chief minister, Terry Mills, was in Japan. Mills had been elected chief minister just seven months earlier.
Since then, Giles’s term has been scandal-plagued, stuffed with defections, sexual indiscretion and bitter internal warring. He bizarrely survived his own ousting last year, when the mines minister, Willem Westra van Holthe, presumed he had the numbers to assume the leadership. In February last year, news reports emerged of Giles’s imminent departure, and the media assembled at Parliament House for the respective speeches of triumph and defeat. The legend among the Darwin press corps is that Giles went home and, assuming defeat, enjoyed some commiserative drinks. Late that night, he was surprised by a call from an adviser: van Holthe had got his sums wrong. His rival may have sufficient numbers in the party to become leader, but too few to pass legislation on the floor of parliament. Giles held his ground. At 1am he gave a press conference announcing his decision to stay. This week, he might be wishing he hadn’t.
Indigenous Australians comprise 27 per cent of the country’s prison population, despite making up only 2 per cent of the population aged over 18. But in the Northern Territory, the numbers are more startling. Proportionately, it has almost 15 times the number of youths detained on any given night as Victoria. It is by far the highest number per capita in the country, still three times greater than Western Australia, the jurisdiction with the second highest rate. Of Territorian youths in detention, 97 per cent are Indigenous.
Adam Giles’s suggestion that he did not know about the abuse at Don Dale – and that there was a cover-up that prevented his knowledge – was met with incredulity by the Territory’s journalists. At a press conference on Tuesday, the chief minister said: “Anybody who saw that footage on television last night on Four Corners would undoubtedly describe it as horrific footage. I sat and watched the footage and recognised horror through my eyes.”
But he denied having known about it previously, saying that he saw the images for the first time that night. “I think there’s been a culture of cover-up going on for many a long year. The footage we saw last night [went] back to 2010 – and I predict this has gone on for a very long time.”
This is peculiar. In August last year, the NT’s new child commissioner, Colleen Gwynne, publicly released her report on youth detention. It contained verbatim quotes from the footage aired on ABC this week, for example this comment from a corrections officer: “No, let the fucker come through because when he comes through he will be off balance – I’ll pulverise, I’ll pulverise the little fucker. Oh shit, we’re recording, hey.”
Gwynne’s 60-page report included the 2014 tear-gassing incident, extended solitary confinement, and the use of spit hoods. Gwynne is no pushover. A 25-year veteran of the Northern Territory police, Gwynne rose to commander before her retirement and was the lead investigator on the Peter Falconio murder investigation. “She’s the perfect person for the role,” Wild tells me. “There’s a political funk here. An atmosphere that creates permission for bad behaviour, [though] not explicitly. But we have Gwynne, who is no bullshit. She understands both sides of it. Because the arguments are too binary.”
Gwynne’s work was complemented by another report, released in January last year, called “A Review of the Northern Territory Youth Detention System”. It was written by Michael Vita, a senior prisons bureaucrat from New South Wales, and found a system in crisis – overly punitive and poorly supervised. In turn, Vita’s report reflected the concerns of Gwynne’s predecessor, Bath. He had completed a report – not his only one – on youth detention in 2012, which is yet to be tabled by the government. Legislation prevents him discussing its contents. “I very much regret the fact that the report has not been made public,” Bath tells me.
But he is free to tell me of other findings, and he does. “We have found problems with the recruitment and supervision of [corrections] staff. When the minister turned down my proposal for a public inquiry, he announced an internal review. He did a report, which found much the same thing.
“These corrections officers were given carte blanche. And Northern Territorians heard rhetoric like, ‘These kids are the worst of the worst.’ But I think only one of those six kids we saw on Four Corners had a history of violence. All but one are back out in the community. They’re not the worst of the worst. That was misinformation.”
Peter O’Brien says it’s hard to believe that Giles didn’t know. “There’s very few oversight bodies in the Northern Territory. Most things go directly to the minister. So the NT government should not be involved in the royal commission. It should be fully federal. The Northern Territory’s involvement should merely be their producing of evidence.”
This week, Giles stripped Elferink of his corrections portfolio – but he remained attorney-general and, oddly enough, minister for children. Meanwhile, Giles announced that the restraint chairs – the ones his government explicitly authorised two months ago through the Youth Justice Amendment Bill – would be banned.
Wild says there’s a contradiction within the two men most responsible for the conditions at Don Dale – John Elferink and the former corrections commissioner, Ken Middlebrook. Middlebrook resigned last year after the prison escape of rapist and killer Edward Horrell. “They are both incredibly complex people,” Wild says. “For a start, most people here see Ken as a visionary in the adult prison space, and he’s always been seen as a progressive guy on this. He and Elferink established the Sentenced to a Job program, which has been an extraordinary program. They’re capable of that. Ken once took me on a tour of a new prison wing, where there was all this vocational stuff: a hairdresser, woodwork shop, a music room with a recording studio. They’re not single-facet people.
“Yet much of their rhetoric has been so demonising and punitive. Whenever I’ve raised this with them, they say, ‘They’re not kids, they’re mini-criminals and kids have to face up to the consequences of their actions.’ But there’s a difference between that and what we saw on Four Corners.”
O’Brien is calling for the immediate release of Dylan Voller from custody – “he’s been badly treated, and the territory owe him a lot” – and wants the royal commission to examine the relationship between legislative change and the hardline editorials of the media. “Are those concerns reasonable?” O’Brien asks. “Are they empirically sound?”
The sum of the political fallout is yet to settle. But this week, the consequences of a territory with minimal oversight and inflammatory rhetoric made international news. Perhaps it shouldn’t have surprised anyone. As the UN’s Global Indigenous Youth Network said: “Australia made a commitment to the rights of Children by becoming a signatory to the United Nations Convention on the Rights of the Child in 1990, and to Indigenous peoples in supporting the Declaration on the Rights of Indigenous Peoples. Yet, compliance is questionable and, in some instances, almost non-existent.”
It is insufficient to condemn the torture of children. It is cheap and beyond obvious. What is crucial is understanding the circumstances that birthed the practice, that made it common, banal and self-perpetuating, as well as understanding the circumstances that rendered inquiries impotent.
As Wild noted, political discussions of law and order are aggressively binary. But to condemn the abuse and torture of children is not to excuse violent crime or its social effects – it’s absurd that such a qualification is necessary. In a jurisdiction with much higher rates of crime than other states, anger is understandable. But that anger became the pulpit from which an unaccountable government announced its new laws and ignored its own inquiries.
To some Territorians, it seems as if the very principle of justice comprised nothing but anger’s release. That anger, and its endless validation by parliament, has created great poison. It will be the royal commission’s job to understand it.
This article was first published in the print edition of The Saturday Paper on Jul 30, 2016 as "‘There was political support for this…’".
During the final week of the election campaign we are unlocking all of our journalism. A free press is one you pay for. Now is the time to subscribe.