Much of the abuse featured in ‘Australia’s Shame’ is not new information for those who have been listening. Many of these issues had been investigated, reported on and tabled in Parliament including Children’s Commissioner Gwynne’s 2015 report and the 2015 Vita report. The NT Giles government did not initiate any meaningful change in response to the recommendations from these 2015 reports, instead pursuing a ‘law and order’ and ‘tough on crime’ approach to the issues. This included the introduction of legislation that legitimated the use of some of the restraints and techniques employed by Don Dale staff exposed in ‘Australia’s Shame’. Such restraints and techniques, in combination with a failing juvenile justice system and increasing incarceration rates of Indigenous Australians have raised serious concerns as to whether Australia is meeting its obligations under domestic and international law. In some cases there have even been clear and gross violations of the Convention against Torture, Convention on the Rights of the Child, and the Universal Declaration on the Rights of Indigenous Peoples — all United Nations’ conventions to which Australia is a party.
Within hours of the program airing on the evening of 25 July, Prime Minister Malcolm Turnbull announced a Royal Commission into the current state of affairs in youth detention in the Northern Territory. In many quarters this was seen as a welcome and necessary response from the Prime Minister. However the terms of reference announced by the Turnbull government this week are said to be a missed, once in a lifetime opportunity, to address the inherent racism in the Australian legal system, according to the Australian Lawyers Alliance. There is also a deep sense of disappointment that the Turnbull government has failed to consult Indigenous people in relation to the terms of reference. The Aboriginal Peak Organisations of the Northern Territory (‘APO NT’) have suggested that the Turnbull government has comprehensively failed in its commitment to do things ‘with Aboriginal people, and not to them’. That it will be a joint NT-federal led Royal Commission, and that the now former Chief Minister Adam Giles played an active role in developing these terms of reference, reflects one of the most serious concerns and an obvious conflict of interest. That the role of the Department of Children and Families, NT police, and other systemic issues within the entire juvenile justice system may not be investigated suggest that the Royal Commission may be compromised and may not usher in a new era of comprehensive reform as hoped. The originally-appointed Commissioner Brian Martin resigned his role due to community pressure and concern that he was a biased choice given his history as former Chief Justice of the NT Supreme court. Two joint commissioners have now been appointed; former Queensland Supreme Court judge the Honourable Margaret White and Indigenous activist and former Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda. The Royal Commission into the Protection and Detention of Children in the NT commenced on 6 September, with a report expected in March 2017.
Many legal, health, social and indigenous organisations have voiced concern that, in both the immediate and long-term, the safety and wellbeing of children must be paramount. This includes finding appropriate accommodation for the children in the short-term, with the NT government to consult experts on the ground to formulate individualised plans. In the long-term this means securing a future for these children in Australian society and reducing indigenous incarceration rates.
REBECCA NAYLOR and CHRISTOPHER FRAWLEY are social work and legal interns (respectively), at NAAJA.