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Expert testimony from a US juvenile corrections director about his transformation of Washington’s notorious Oak Hill facility provides the Northern Territory royal commission with possible prescriptions for the failures of Don Dale. By Martin McKenzie-Murray.

Don Dale lessons

In the final week of the royal commission’s public hearings into juvenile detention, we returned, in a way, to where we began. If there was a face to the vexed issue of children in detention, it was Dylan Voller’s – a troubled, violent subject of the troubled, violent culture of Don Dale Youth Detention Centre. But if there was a face to the Northern Territory government’s “tough on crime” philosophy, it was John Elferink’s – the territory’s rough-and-tumble former attorney-general and corrections minister.

In the Four Corners episode that sparked the commission, it was Elferink’s policies and rhetoric that were examined, as it was he who gave ABC reporter Caro Meldrum-Hanna a ride to the Don Dale facility on his motorbike, and chaperoned her through the facility. Following the airing of the story, it was Elferink who was stripped of the correctional services portfolio. This week, he reappeared before the commission and spoke bitterly about the aftermath. “My life – because of a very poorly presented Four Corners program – was in tatters ... I had to make sure that there was food in my own children’s stomach first and that there was a job so that I could afford to pay for a roof over my children’s head. My position is that the family should look after their children in the first instance, and that is precisely what I did when I left office, and I would urge all families to take the same attitude.”

Elferink had criticised the program in his previous appearance before the inquiry in April, and in doing so implied an unsound foundation to the whole commission. He was adamant that the episode was a distortion, the “antithesis of a balanced report and was in fact misleading”. He said, by way of example, that “vision of alleged assaults being perpetrated on detainees was accompanied by assertions that the government had done nothing in relation to such matters when it was a matter of public record that officers had been criminally prosecuted for some of the incidents broadcast by the ABC and, moreover, had been acquitted.

“The vision, which was broadcast by the ABC, is confronting. However, in my view it was presented by the ABC in a way which was calculated to have maximum sensationalist impact and to wrongly portray it as the position which appertained in youth corrections in 2016. It gave no context to the unique circumstances which appertained in August 2014 and which did not appertain in 2016.”

This week, Elferink had new assertions. He told the commission that it should investigate genital mutilation and under-age marriages – cultural rites, he said, that were still commonly practised by Indigenous communities in the north. “Human rights should have ascendancy over cultural rights,” he said.

There was a basis for the former. In 2013, two days before Christmas, ambulance driver William Miller received an emergency phone call in the remote town of Borroloola. A circumcision ritual, involving about 20 Indigenous boys, had gone badly wrong. When Miller arrived, he was shocked to see that his grandson was one of those seriously injured. “I just seen red when I seen my kid sitting in a pool of blood,” Miller told the ABC at the time. “How would anybody else act? I mean, I wasn’t happy at all with the whole people who done the job.”

The boys were flown to Darwin, more than 700 kilometres away, where they received treatment. It divided the town, and prompted political discussion about cultural sensitivity versus child protection. Publicly, Elferink – who was also minister for children – said that if cultural practices weren’t criminal, then the state had no role to play. “It’s a free country,” he said.

But this week, Elferink told the commission that privately he felt the ritual constituted child abuse. He also said that his department – and cabinet – strongly disagreed with him and were committed to accommodating cultural practices. “I would like the royal commission to turn their mind to this particular issue, and perhaps make recommendations to Aboriginal leaders about traditional practices that no longer have currency,” he said this week.

This raised two awkward questions for Elferink. One, why had he waited until the final week of public hearings to say this? And two, if he believed child abuse was occurring at the time he was minister – and his cabinet made him powerless to stop it – why didn’t he resign? “I had so many things to achieve in so many other portfolios,” he replied. “You make compromises.”

It was on Elferink’s other assertion regarding under-age marriage that his testimony faltered. The former minister was surrounded with incredulity – from counsel examining him, and both commissioners. Under repeated questioning, Elferink admitted the principal source of his information was anecdotal. “I would say that the value of my anecdotal evidence is reasonably substantial, considering the amount of time that I spent working in remote and regional areas.”

Commissioner Margaret White was polite but firm. “Mr Elferink, it’s the case that with the assistance of CICAYDAS [Children in Care and Youth Detention Advice Service], an organisation that has been funded particularly to go into the communities and go into as many communities as many stories can be gathered, the evidential base from the hundreds of stories that have been recorded and reported doesn’t support your anecdotal evidence. And, of course, it would be something that would be of great importance to the commission had it been raised. So it is a matter of concern to us that we have missed, in our investigations, this widespread practice to which you’re making reference, and I just wondered if you could assist us by giving us some geographical pointers, because otherwise anecdotal evidence, of course, is a substitute for just talking.”

Commissioner Mick Gooda also queried the reliability of Elferink’s anecdotes. “Were you aware that last week, Sven Silburn gave us evidence that said only 4 per cent – and it should be zero – but 4 per cent of Aboriginal children in care are as a result of sexual abuse?” Gooda asked Elferink.

Elferink: “Yes.”

Gooda: “The proposition I want to put is, given that it’s now treated as sexual assault, and there’s such a low rate of sexual abuse as a reason, don’t you think leaders might already have changed?”

Elferink: “The practice, as I understand it, still continues and that’s the message that I want from leaders.”

The commissioner: “You need some evidence of that.”

Elferink’s rhetoric was examined, most pointedly by the lawyer for the North Australia Aboriginal Justice Agency, Dr Peggy Dwyer. Dwyer quoted an interview Elferink gave to Sydney talkback radio, in which he referred to youth offenders as “ratbags”. She said, “I suggest to you that you took the opportunity to demonise the Aboriginal community, like you did on so many other occasions when you were minister.”

Elferink’s response was simple: “It reflected public anger. I was sending a signal to the public that I understood their frustration.”

 

All this was a long way from the expert testimony of Vincent Schiraldi this week. Schiraldi directs a criminal justice program at Harvard’s Kennedy School. Schiraldi has previously served as a mayoral adviser, probation commissioner of New York, and director of juvenile corrections in Washington, DC. As the latter, Schiraldi inherited a youth justice system that, he says, was fundamentally broken. He described corruption and Dickensian squalor.

“Between two investigations what they discovered was that beatings of the children were very commonplace,” he told the commission. “Young people were shackled and placed into isolation at very high-end, unnecessary numbers. The physical plant had badly deteriorated, so that if kids slept close to the boilers, they were in steaming hot rooms, and if they slept far away from the boilers in the winter they were in freezing cold rooms. This was particularly concerning because if kids had asthma or were on psychotropic medication, being in those hot rooms could kill them.

“The district was not attending to suicide needs in a sufficient manner, so kids were in danger of killing themselves. I found out later, when I started, that staff were pressuring one another into sexual activities as well as sexually assaulting the kids. And back to the physical plant: that had deteriorated so badly that rats and cockroaches would not uncommonly crawl up on the kids at night while they slept. Drugs were also rampant. Kids were actually testing positive for marijuana more frequently after they had been in the facility for a month than prior to their arrival.”

In conjunction with police, judges and parents, Schiraldi applied a sort of vetting system, distinguishing between high-, medium- and low-risk children. His intention was to lower, not raise, the number of children in detention. He saw that these facilities were damaging children – almost encouraging their recidivism.

Then there was the question of the notorious correctional facility Oak Hill – a place so awful, Schiraldi once wrote in The Washington Post, that he wouldn’t “kennel my dog there”. At the commission’s request, Schiraldi this week made a presentation on the dramatic transformation of the facility. “The environment was correctional,” he said. “Staff defined themselves as correctional officers. Young people responded in kind – sort of took on the role of inmate. And then they just sort of self-fulfilled those prophecies. So dealing with that was obviously a reason for transforming the physical space that you found when you arrived there.”

Over time, the facility was physically reformed. Cells were remade. Acoustics altered. There were youth-commissioned murals, a gymnasium and theatre. But reform, Schiraldi said, had to include staff as well. What he was proposing was a radically different approach to youth justice – and he faced resistance.

“Imagine you’re on a living unit and the kid goes off,” Schiraldi said. “He doesn’t want to do whatever you’re telling him to do, and so he cusses at you and spits at you. In the old days, what you would do is you would hit a little button on your chest and four big football players would come and rough that kid up and stick him in an isolation cell. And, you know, that didn’t feel so bad, right? You felt like your company, your department, had your back. They weren’t going to let some kid just spit in your face and disrespect you.

“Now, the new way is your partner is going to deal with this kid. You’re going to go to the bathroom, wipe your face off, regain your composure, and you and your partner, along with the kids, are going to have a conversation in a group therapy-type setting about dignity and respect and what it means to spit in somebody’s face. And a lot of that, as time goes on, the kids themselves are going to lead. They’re going to challenge their partner, their other young man and say, ‘Look, I know you didn’t like the way that decision went down. I know that maybe wasn’t even a great decision. Maybe the staff member was wrong. But you can’t spit in a guy’s face, and start cussing them out. If you do that in the real world, you’re going to go to jail.’ And frankly, let’s just be honest, for any of us, that’s hard. But especially if for 20 years you have been hitting a button on your chest and four football players rough that kid up. And so we felt like training wasn’t going to do it all by itself. You needed some coaching along the way with that. And even with that some staff were frustrated and didn’t want to do it this way, and they wanted to slug that kid. And you can understand it, but you can’t accept it.”

As we have heard repeatedly through these hearings, training was precisely the thing lacking at Don Dale. Remarkably unqualified men were hired, and often improvised their way through their roles. Both staff and children suffered as a result. There is another resonance offered by Schiraldi. In an academic paper he co-wrote last year, he said: “The harmful effects of incarceration are embedded in the physical facilities themselves, creating a toxic environment where staff and kids are inevitably caught in their roles of guard and prisoner.” With some exceptions in the way Don Dale was run, this description could be applied to it, too.

 

The commission will now sit to consider its findings. A final report is expected at the end of September. For almost a year, the inquiry has heard hundreds of hours of testimony. It has also heard recordings of the personal stories of children caught in detention. It seems appropriate to close with one of their voices.

This story was offered this week by a young person the commission called DM. “I started doing, like, property damage. And I was getting charged at the age of, say, 11, 12 to 13. And, like, I started sniffing glue and I did that for, like, a year. And, so after I started sniffing glue, they set up this meeting for me in Berrimah. It was at the safe house. And, like, the meeting was just meant to be about me and, you know, like that stuff, and they didn’t tell me that, like, I was staying there. And then when I got there I seen that it was like bars and that and, like, I didn’t want to stay there, and I knew that if I went in there, there was no way of coming out.

“This one carer that I got along with really well, she was sitting down with me and she was telling me, ‘No, it’s going to be alright. They’re not going to lock you in. I’ll be there with you the whole time, you know – we’ll come out together.’ And then when I went in, you know, like, sure enough, we had the meeting and the meeting was about me staying there. And then I was just like, ‘No, I don’t want to stay here.’ Like, telling them to open the gate and that, but they wouldn’t open the gate. And then, yeah, so I was locked in there and I had to, like, find ways to, like, escape. There was this one way I would climb on the bars and I would climb up to the roof and there was this little hole up the top and I would, like, squeeze my way through there. And then there was this one time when me and this other girl, we were in her room, and I grabbed the keys off one of the workers because he was meant to give me a smoke that he owed me because, like, he always gave me smokes, and he said that if you be good or something, and I said, ‘Yeah, well we’ve been good so are you going to give us that smoke?’ And then he didn’t give me, so then I pulled the keys from, like, where his pants were – they were clipped onto where his belt is – and then, yeah, I kept on pulling it, pulling it and then eventually he just unclipped it from his shorts. And I ran into the other girl’s room and I threw the keys to her, had my back against one of the doors, like, the door that he could get through. And she was unlocking the back door that we could escape from. And, like, she jumped over the gate and, like, legged it and I jumped over the gate, but the back of my leg were caught on it. And yeah, like, I pulled my leg down and I kept on running but then when we were hiding I felt my leg and, like, there was just, like, when I looked at my hand, there was just blood all over my hand so I had to go back there. And then the carer come and he found us and he took me… he took us back and I had to go to the hospital. And then, yeah, I got locked back in there.”

This article was first published in the print edition of The Saturday Paper on Jul 1, 2017 as "Don Dale lessons". Subscribe here.

Martin McKenzie-Murray
is The Saturday Paper’s chief correspondent.

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