Transcript 21 March 2017 Web view.ROYAL COMMISSION 21.3.17P-1587O. HAVNEN XN ©Commonwealth of AustraliaMR McAVOY.ROYAL COMMISSION 21.3.17P-1539B. KELLEHER XN ©Commonwealth of AustraliaMR

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TRANSCRIPT OF PROCEEDINGS

O/N H-762181

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

9.37 AM, TUESDAY, 21 MARCH 2017

Continued from 20.3.17

DAY 18

MRP.J. CALLAGHAN SC appears with 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 C. JACOBI for the Northern Territory of AustraliaMR P. O’BRIEN appears with MS C. GOODHAND for Dylan VollerMS P. DWYER appears for North Australian Aboriginal Justice AgencyMS F. GRAHAM appears for the Central Australian Aboriginal Legal Aid ServiceMR J.B. LAWRENCE SC appears for ADMR S. O’CONNELL appears for AD, AV and AN

.ROYAL COMMISSION 21.3.17 P-1537©Commonwealth of Australia

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MR G. O’BRIEN-HARTCHER appears for AGMR L. CROWLEY appears for AY


MR CALLAGHAN: I call Benjamin Kelleher.

<BENJAMIN KELLEHER, SWORN [9.37 am]

<EXAMINATION-IN-CHIEF BY MR CALLAGHAN

COMMISSIONER WHITE: Thank you, Mr Kelleher. Please be seated.

MR CALLAGHAN: Could you please tell this Commission and Board of Inquiry your full name?---Benjamin Kelleher.

Mr Kelleher, you have prepared a statement – for the purposes of this Commission, a statement dated 16 March; is that correct?---Correct.

Yes. I will tender that statement.

COMMISSIONER WHITE: Thank you. 106. The statement of Mr Kelleher is exhibit 106.

EXHIBIT #106 STATEMENT OF MR KELLEHER

MR CALLAGHAN: Mr Kelleher, you started work as a Youth Justice Officer at the end of 2010; is that correct?---Yes.

What were your qualifications and/or training as at that time?---At the time I had no formal training with youth.

Or any other qualifications?---No.

No. Could I ask you this at the outset: Mr Sizeland, what is the nature of your relationship with him?---Jimmy Sizeland is a family friend of mine, I was introduced to by a friend of mine who lived in Alice Springs.

Okay, so there’s no family relationship?---No relationship other than that.

Okay. You did, on a form – I will show you exhibit 64 – tab number 168, if I can, tender bundle tab 168. You referred to him as “Uncle James Sizeland” and the relationship to you as “friend/family”. Is that just an indication of how close he was?---That’s right. I have no recollection of putting “uncle” there and as you can see it’s sort of outside the ......

.ROYAL COMMISSION 21.3.17 P-1538 B. KELLEHER XN©Commonwealth of Australia MR CALLAGHAN

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Yes. Is it even your handwriting?---No.

No. Okay. Alright. Thank you. I will tender that.

COMMISSIONER WHITE: Exhibit 64.168.

EXHIBIT #64.168 FORM REFERRING TO “UNCLE JAMES SIZELAND”

MR CALLAGHAN: Thank you, Commissioner.

Was he part of the process by which you got the job?---No, he wasn’t. I met Jimmy when I moved to Darwin.

Right. Well, we’ve established that you had little in the way of qualifications before you were appointed. What about after you were appointed? The impression we’re getting is there wasn’t a lot of on-the-job training, or a lot of training provided to you Youth Justice Officers; is that correct?---That’s correct. From memory – and it was quite a whole ago I believe I took part in a PART course which was approximately three days long. I don’t think I got to do the whole thing, because we were quite busy on the floor at the time, so I only attended a small part of it. The initial training was a – like an induction course where we got to see the facilities and there wasn’t really much else to it.

Just on the PART training, can I show you another document which is part of an interview that you did with the Children’s Commissioner. It’s in supplementary bundle tab 86 and if we can go to page 6.25 – I should just perhaps clarify. You did an interview with the Children’s Commissioner?---Yes, I did.

And these sorts of subjects were discussed?--- ......

In particular, at 6.25, you expressed the view that there was nowhere near enough training to prepare you for things and, as to the PART course, you expressed the view that it was highly irrelevant to how kids should actually be restrained. I’m just interested to hear what you meant by that. Why was it irrelevant to the restraint of children?---I just think that the PART training was very one dimensional, it was sort of, “Grab the kid’s arm here and he will comply.” That unfortunately wasn’t how it worked most of the time, so I just – I think that it was there to tick a box, make sure that we were set, told that we had some form of training, yeah.

What – with the benefit of your experience now, would you suggest should be included in the sort of training that be provided to people who might have to restrain children in a situation like this?---I think that before they’re – restraint should be taught, more emphasis should be put on the de-escalation of a situation verbally. I did try and further my learning outside of the centre to do that, in the hopes I had a long career there in some form, but in terms of initial training there’s nothing that,


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apart from talking briefly about things like baseline behaviour and things like that which I can recall, there was no other formal training about how can I get one of the detainees to try and calm down verbally, first, and I think more emphasis should probably be put on that.

So the training, such as you had, was more, “Let’s go straight to the restraint,” rather than - - -?---I do believe it should have touched on – like I said baseline behaviour and the different steps a kid might take to get where it needs to be restrained, he or she needs to be restrained rather, but yeah, no – no major information was given in terms of how can I get this young lad to sit and have a chat rather than, you know, get physical.

Alright. Tell me this: did you recall receiving any training about indigenous culture or cultural specific issues?---I do know that it was given to some of the workers. Again, given my – the intensive role at the centre, I wasn’t able to attend, because I was working.

Because you were the one who was actually doing the work, you didn’t get the training; is that right?---Yes – yes, I had to work on those days. I – I believe at the time I was doing things like escorts to Alice Springs and to court and stuff, so I was unable to attend it.

Okay. What about training in the concepts of things like self-harm, suicide that sort of thing?---No. I had no training and I have no recollection of there being any option to do so.

I want to ask you some questions about record keeping and records at the Don Dale centre?---Yes.

Can you tell us first what an Intensive Management Plan was?---I believe the IMP was put in place by the case workers, and that specific document would detail how long a child was allowed out of his or her room, things like what they could or can’t eat, and some previous history on their behaviour, and so that would be followed subject to their behaviour staying that way for a period of time.

You expressed the view in the interview that I’ve just shown you, and I can take you to the passage if you need to, but you expressed the view that these things were a waste of time?---I believe so.

And you observed, I think, that – you saw a cut and paste method of?---I believe so.

Filling them out?---Yes.

Can you elaborate on that?---The IMPs that I viewed for the specific detainees that I worked with for a long duration were generally all the same with – the amount of time they were allowed in or out of their cell varied, nothing else really changed. In my opinion, obviously. I just think there wasn’t much emphasis put into the


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individual. Rather, it was just, “Because of your behaviour you can have set amounts of time outside until such time as your behaviour improves.”

These were documents that were clearly meant to be tailored - - -?--- .....

- - - to an individual’s needs?---That’s right.

But in your view they weren’t?---That’s right.

What about the – who was overseeing this? Were the case managers?---To the best of my knowledge the case workers put together IMPs, and gave those to the shift supervisor, who would then have them for us to view when we started our shift.

You’ve also expressed a view about the ability of the case manager to fill out such a document, because they weren’t around to see the way the place worked after hours; is that right?---The case workers’ hours were a set time, generally day shift. Because the kids were at school during that time, afternoon their behaviour was okay because they were doing things like education, maybe some sports. It was probably the best part of their day, but afternoon shifts were more chores, a little more down time. That’s when they tended to get a little bit bored, so that’s when a – bulk of the incidents tended to take place, and they weren’t there at that time.

So they weren’t in a position to be - - -?---No, I don’t believe so.

- - - informed about what they needed to know?---No, I don’t believe so.

Before I go on, you were here all day yesterday; is that right?---Yes.

You heard Mr Zamolo’s evidence?---The majority of .....

Most of it?---I went outside for a while.

Okay. Look, at one stage I took him to two documents. They’re exhibits 64.196 and 197, and I’m moving to the topic of IOMS, and these are two documents, one filled out apparently by you, one filled out by Mr Zamolo, concerning a particular incident, and were you here when I drew his attention to the fact that they’re both apparently filled out at exactly the same time?--- .....

You can see the date at the top. Can you shed any light on that as to how that occurred?---To the best of my knowledge, there’s a lady called Susie Ripper who ends up the IOMS department that we can talk to about this, but to the best of my knowledge – and I did ask a couple of people after, because it looked a bit weird. My understanding is that when someone makes an attachment on IOMS, for example opens a report, that specific time is what is given and any attachment made thereafter by a subsequent officer who was involved will just simply attach on to that same time.


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Okay. So it’s a technical - - -?---I believe so. Yeah. And I don’t think that we would have looked at each other and clicked at the same .....

No. Nor would you have been doing this at exactly the same time?---No. No, I didn’t ..... yeah.

No. Okay. Thank you. That helps to clarify that a little. Still on the subject of record keeping, though, the use of force register was something that was meant to be filled out when force was used?---Yes.

Have you – you expressed the concern in that interview, page 24, line 33, that you couldn’t say whether or not it was, in fact, always filled out because everyone was just thrown into the job?---Absolutely. What line – what line are you talking about?

It’s page 24 at line thirty – 33?---Yes. I think, by that, I just meant that not everybody knew where each booklet to be filled out was so - - -

Well – sorry, I don’t want to talk over the top of you?--- .....

Could you tell us about that? What do you mean? Was this just part of the lack of training?--- ..... had quite a lot of SOPs around the office, and emails, and various documents sent out for things that we had to fill out from time to time, but they were never all really in the one set place. For example, I couldn’t tell you where the force register was but I knew where the PART manual and other things were. They just weren’t all in the same place. So – you know, people may have to – have had to fill things out, but couldn’t – didn’t have a clue where it was.

And you were someone who was required to use restraint - - -?---Yes.

- - - on more than one occasion - - -?---That’s right.

You’re telling us you didn’t necessarily know where the use of force register was during that period?---That’s right.

With the consequence, I would suggest, that we can’t really look to that sort of record as being reliable?---No. It wouldn’t be, but also often because of how busy we were, sometimes, and the lack of staff that we had, people would fill out form for people and they’d just come and simply sign it at the bottom if it was correct, so it wasn’t very well kept.

The whole system sounds a bit - - -?--- .....

- - - inefficient?--- .....

Yes. Okay. Thank you. Alright. Can I move on to some concerns about staff. If we go to that same interview, at page 74 line 29, you expressed the view that certain workers at Don Dale used their job as a reason to have a power trip. Now, I don’t


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know if you were here yesterday when Mr Zamolo used the same phrase, and I’m not suggesting you collaborated on that. It seems to be an opinion that you’ve drawn independently of each other?---Absolutely.

Can you give us your explanation for what you meant by that?--- ..... there were workers there that I believe, like Mr Zamolo even though we may not be friends, and like Mr Sizeland, and like many of the other lads who worked in the BMU and down in M block who took the job seriously – what I mean by that is they went there with the hope that a day with the kids would be a good day for the kids, and took pride in the Corrections badge, myself included, but I do believe that some of the workers that were there only were there to earn the relatively good money or just be an asshole to the kids.

And can I follow-up about being an “asshole to the kids”, what sort of things are we talking about?---For example – the example you used by filling the cup halfway. Things like that were common amongst some of the workers, and that sort of thing made my job a lot more difficult because, when they played up because of it, I was the one who had to then work with them one on one or in the BMU.

Can you think of any other examples? I mean, we’ve – we heard that one yesterday, but can you think of other - - -?--- ..... taking kids’ mattresses out of the cells for not a very good reason, giving them a longer period in the BMU for behaviour that I don’t believe warranted that. Not allowing them to go out on the basketball court for a long time just because it didn’t suit the shift supervisor at the time. Things like that made subsequent shifts, and the rest of the day very hard because, at the end of the day shift when they go home and afternoon shift are allowed on they are left then with, I guess, picking up what was left from day shift. So if the kid was pulled out of school for something that may have been a minor wrongdoing, then they were bad for the rest of the day, and rightly so because they wanted to be at school, you know? And because they weren’t, it made the day very hard for other people coming on shift.

Can I just pick up on part of that answer where you made reference to the BMU and mattresses and that sort of thing. I was going to address that as a separate topic anyway, but since you mention it, you had a particular view about the behavioural management unit yourself, didn’t you?---It was rubbish.

Rubbish is the polite word you would use in this context?---Yes – yes.

In the interview we’ve just looked at, you - - -?--- ..... given where we are, I think where we are I think rubbish is a good word. I thought it was appalling .....

COMMISSIONER WHITE: We’ve had plenty worse than that?---Yes .....

MR CALLAGHAN: Well, I will do it for you, you called it a shithole - - -?---Absolutely .....


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- - - to the Children’s Commissioner; is that right?---That’s right.

It was your view it was being used as punishment?---I believe so.

In fact, you admitted you couldn’t put up with it: it would drive you insane?---If I was a detainee?

Yes?---Yes.

But can we just explore what you were talking about before about the perhaps inconsistent way in which things like removal of a mattress was used. Whose decision would it be to remove a – well, sorry, let’s go back a step. Whose decision was it that a child be placed in the BMU?---Either the shift supervisor or the senior at the time.

And who are we talking about?---The names of those two people?

Yes?---We had several, and they were all very different in their approach, so I don’t want to assume that they all did it wrong.

Sure?---Trevor Hansen was an SS, Ray Church, Jamie Clee - - -

COMMISSIONER WHITE: Sorry, who was the second one?---Ray Church.

Thank you?---Jamie Clee, ..... myself, sometimes. That’s just, off the top of my head, who I can think of.

MR CALLAGHAN: Okay?---Because it was – because, given the nature of incidents started to increase and stuff, though, people that weren’t necessarily qualified for the SS role were thrown there because of short staffing too, so that’s sometimes where some of the inconsistencies came from.

Can we just put a bit of detail into what you’ve just said. You said that the nature of – or the incidents increased and there was short staffing. What time frames are we talking about?---Between – sort of February when I started to work a bit more one on one with Dylan onward.

Which year?---2014 was the year I finished, isn’t it? Yes.

Okay. Can I ask you – can I take you to that interview, page 86 – I’m sorry, page 17, line 15, where you were being questioned on this very topic, and you indicated there that the question of the mattress might be at the discretion of the SS, and you’ve told us a few of the names who might have filled that position, or “Russell”. Would that be Mr Caldwell?---Yes.

And what position was he occupying?---I believe he was the general manager ..... you might want to check that, but he was the top – top level.


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Right. He was above Mr Sizeland?---Yes – yes – yes.

So, broadly speaking, the structure would be you would take a direction - - -?--- .....

- - - from a senior, from a shift supervisor?---Who was taking it from Russell.

And where did Mr Sizeland fit into that?---After Russell, sort of started, and saw how hard it was, he handballed – I think I used that term in my interview as well – a lot of his harder decisions to Jimmy, unfortunately.

And what sort of decisions are we talking about?---Where a kid should be placed, how long for, whether or not he should be allowed his mattress. Basically, Russell would tell Jimmy to go and sort it out, and sometimes it worked because Jimmy was the sort of guy who would come off the floor and actually sit with the lads in the cell and have a talk and he actually cared. You know, after he left and when he got home, he still cared what was happening with the lads. Russell didn’t really leave his office much, and so because he didn’t know a lot about the kids or their behaviour he sort of just passed it on.

Was it your understanding that he should be making decisions such as the decision as to who should be placed in the BMU?---Yes.

Or whether they should be provided with a mattress or not?---Yes. But in order to do that, I think he should have spent more time on the floor.

And is – so is your evidence basically that even though – your opinion was he should be making these decisions, he just left them to Mr Sizeland?---Absolutely.

I see. We’ve heard evidence about what the situation was once a child was placed in the BMU. Again to repeat, just briefly, some of the stuff that we’ve heard, which you might confirm, that for example there was limited ability to wash their hands after they’d been to the toilet? Or no ability to wash their hands after they had been - - -?--- ..... ability.

- - - to the toilet. You said in the interview children weren’t allowed to go to school if they were in the BMU?---Yes. The IMP stated that they were – I don’t remember the term, but isolated, not allowed out, and that would also mean school.

In fact, the children complained to you about the conditions in the BMU, did they not?---From time to time yes.

They would tell you – well, again, if we go to page 30, line 7, just to refresh your memory – or perhaps line 3, they’d tell you every day that they felt they were being treated like dogs?---Yes. That wasn’t always because of the conditions. Sometimes it was just because they had been in there quite a long time.

Sure. But that’s a complaint about the BMU generally - - -?---Yes – yes .....


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Is that right?--- ..... yeah.

And did you pass those concerns up the line?---Yes.

Tell us about that?---Often I would just – either put it in an incident, should - - -

Sorry, I missed that?---If an incident occurred I would add into that incident that they had complained prior to it.

Right?---Or if they didn’t I would simply pass it over a shift or talk to the shift supervisor and say, “The lads think it stinks down there.” Sometimes given – depending on who the shift supervisor was, they’d say, “Let’s give it a hose out,” or you know, give it a clean. Sometimes a shift supervisor might say, “Take them out for some basketball.” Again, depended on who it was, but a majority of the time though it was just – it fell on deaf ears.

That’s at shift supervisor level. Did you have the impression that they were in turn passing the concerns up the line?---Passing it along? Yes, I did.

Tell us about that?---Sometimes Russell would come in on shift change and listen. That’s all he’d really do is listen, and no further steps were generally taken by him to better the situation, or he didn’t really adhere to anything that someone had said.

So he would listen to the complaints from who – what – someone like you would be passing on the complaints?---To the shift supervisor who would – at shift change voice it. That would go – sort of, you know, nothing happened.

Okay. We’re all aware of the major incident that occurred on 21 August 2014?---Yes.

Indeed, the report that was mysteriously filed at 12.03 am referred to that; is that right?---Yes.

You have the impression, or the perception at least, that the management of Don Dale or the detention centres used you as a scapegoat over this incident; is that right?---Yes.

Is that just your suspicion or is it something more than that?---In my educated opinion that is what the case is.

Alright. Briefly put, you take the view that someone – or that management tries to make a connection between something else you did - - -?---Yes.

- - - relating to Mr Voller, and that incident on the 21st of - - -?---I believe that they think Dylan stirred AD up because of – he was upset.


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Sorry, I missed that?---I believe that they made out that Dylan stirred AD up because he was upset.

Excuse me a moment. Did you feel – or did you feel that you received sufficient, or indeed any support, from - - -?---Absolutely none. No.

From – you’re keen to answer, I understand?---All I’m going to say in answer is no, I did not.

From management?---From management or anyone else.

And I wasn’t just talking about that incident, but I’m talking about generally over the course of your employment?---No. Myself, and I think others who were working a lot, and working with the kids who would be deemed high risk or had a lot of incidents, it was just expected, I think, and I – I guess also because I never really said anything about how difficult the job was, because I didn’t want to lose my job. I liked it. We weren’t given any support or any offer of some support.

Do you draw a contrast between that proposition and the way in which management handled an incident that you mentioned in your interview, if we can go to page 28, line 14. I don’t know if you’ve read that recently. If you can just refresh your memory?---Which line, sorry?

Well, see that – the paragraph starting from line 10?---Yes, I see. Yeah.

And again - - -?--- ..... common occurrence, because the workers who got the paid time off weren’t there because they liked working with the kids, they liked the money. And so – of course, this is my opinion, but if an opportunity for them to not have to deal with the kids and still get paid they would take it, and I feel that that was abused somewhat.

I am interested, though, in the background to that incident. Mr Zamolo yesterday spoke about an incident where a female detainee was called a fucking slut?---Yes.

And the worker – do you know, are we talking about the same incident?---We are talking about the same incident.

Did you actually see that incident?---I didn’t see it.

Or are you just aware of it?---I’m aware of that, and I was told by shift supervisors and whatnot what had happened because of it.

And what were you told had happened?---That that particular staff member said that she was under a lot of stress at the time. They offered her some counselling and some paid time off.


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What were you told about the incident itself? What did you understand had actually occurred?---That the female detainee was sort of riling the staff member up and in return the staff member swore a lot at her.

Okay. Do you know who witnessed that? Or who was the - - -?---I can’t remember, sir.

Just going back to the relationship, if you like, between Mr Sizeland and Mr Caldwell and the way in which they performed their respective jobs, you’ve made a reference in your interview to – or suggested that, certainly insofar as rehabilitation or efforts at rehabilitation, Mr Sizeland did make some such efforts to do things for detainees in that regard; is that right?---Yes, he did.

Could we just start with that and explain what you’re talking about?---Aside from the fact that he would come out of his office and make time for the boys, he also allowed me personally to put together some programs for some of the boys who were, I guess, a – a lower classification, if they’re allowed more time ..... the centre, the low – yellow shirts basically, and blue shirts. If they were behaving, he encouraged me to put together programs that would allow for them to have more time, I guess help bridging the gap between when they got out and what they could do thereafter. So I put together a program called Alternate Pathways, I got some sponsorship from local businesses, and was getting some lads to come to my gym and also do weights and things like that in the hope that once they got out they could make a sporting goal and encourage that.

But it got – the rug was pulled?---Yes.

Tell us about that?---Salli Cohen got wind of what was happening after it had all been signed off and I had spent business owner’s money on the lads. We put together a folder and – did you want to talk about the step?

Sure?---This whole – okay – I bought ..... and some – one of my personal sponsors gave us some protein and dietary supplements, and I started to take a detainee, or two or three detainees actually, to my gym where I was doing some boxing and kickboxing a couple of afternoons a week where they would meet, I guess, positive guys out in the community that had sporting goals and would train with me. We’d make some smoothies and learn a little bit about nutrition, and then take them back to the centre in the evening. Once that had started, and the boys were actually quite good, I spoke to one of the promoters who puts shows on up here in Darwin and asked if we could join up with the local PCYC or the one in Tennant Creek and match the boys for an amateur bout. That was because I felt like a goal for them would be good. They don’t really have many set goals. They were all keen, and one of the police officers in Tennant Creek told me that I could match him with some of his young boys who were in similar situations, not locked up but I guess on a different path. So we had planned that, the boys started to train quite hard, and we also had a weights room in the detention centre which Jimmy set up and they were doing some training there, doing cardio and stuff on the field and just before the


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match-ups were to take place, I think it was three weeks out, Salli Cohen asked to see me and told me that boxing is a thug’s sport and she doesn’t want it happening.

Well, can we just go back. You said that this venture had been signed off?---Yes. By Russell and Jimmy.

By Russell?---Yes.

Mr Caldwell?---That’s right.

And Jimmy Sizeland?---Yes.

And it involved detainees being allowed out of the centre to your gym?---That’s right. I got one female who I couldn’t get a fight for, I got her a job at a local supplements store that sponsored me, so she would go there during the day and help behind the reception. And the lads who I could get the competition for, I took them with me to the gym. I didn’t feel it was appropriate for her to ......

Sure. But clearly, if detainees were coming and going, that must have been signed off at - - -?---Absolutely.

- - - a fairly high level?---Yes.

Presumably, a detainee is not allowed out without express - - -?---Yes, express permission.

So there must have been – you would say, presumably, must have been awareness at a high level of what was happening?---Yes there was.

You said Jimmy set up a weights room?---Yes. We had a room down in M block which was I think vacant at the time, or just full of rubbish. We cleared it out and signed off for some money to be spent on making it like a fitness room. So in turns, those lads who had behaved well were allowed to come down with supervision from myself or a couple of the other workers and they could do a set weights program which we had filed for each lad. My role was to write down the weights or exercises that I thought each boy would be appropriate doing and then we sort of measured their progress over time so that they could see where it was taking them, rather than just blindly doing fitness.

What happened to the weights room after the project was shut down?---It was shut down.

It was taken away?---Yes. My understanding is the weights room being shut down was also in conjunction with some other boys escaping, because it was a punishment for that too.

I see.


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COMMISSIONER WHITE: Mr Kelleher, you said you got some sponsorship for this program?---Yes.

These were in the gym field generally I take it?---Yes. They were just local business owners who I had a good relationship with and knew that I – they knew where I worked, and that I loved the job, and so they – when I spoke to them about what I was doing and they were keen to ..... they gave me some money for the boys some boxing gloves and I got them some shoes, shorts, all sorts of stuff. Yeah.

Is that acknowledged anywhere in - - -?---No, I never acknowledged in terms of - - -

Those sponsors, were they acknowledged in any official way, by - - -?--- .....

- - - the Department of Corrections?---No, they weren’t, and I just got the boys to write those people a letter to say thank you for what they had been given, yeah.

If the Commission’s staff outside this moment, asked you, could you suggest who some of them were? They might say whether they thought it was a worthwhile program for them to be involved in?---Yeah. It was quite a while ago now, ma’am, but I’m pretty sure they will be able to show you even the letters, if they still have them, and I believe a couple of lads are now not incarcerated, so they could probably give you some feedback as to just how helpful it was.

Thanks Perhaps if I could just follow up, one more question: did you think that that sort of program had the capacity to grow in other directions perhaps?---100 per cent, and I did put it – without trying to blow my own trumpet, I put a lot of time in that. It was sad for me when it stopped.

Thanks.

MR CALLAGHAN: Can I take you back to that interview, page 70, line 5?---Sorry, may I add something.

Yes?---Just so it isn’t assumed that I’m talking about just using boxing as a means, I think any sport or any extra activity as alternate pathway is a great one. You could use soccer, we used bike riding for one of the boys who wasn’t very, I guess, physically ready to do something like combat sport. He went and did bike riding. So any sport or activity that gets the lads ready for after, where they don’t slide back into the same group of people, I think would be good.

Can I just pick up on that. You say a detainee did bike riding. Was he allowed – he or she allowed to ride the bike outside of the centre?---No. It was a specific bike for the velodrome, so we touched base with the local – actually it was Jimmy who did this, and one of the guys who was a worker who rode the bikes there, they touched base with the local velodrome and they lent him a bike. We just purchased him some of the – the stuff to wear and he would go down there a couple of times a week and


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have a race with the hopes of going to, I believe it was Hobart, for a race. That didn’t eventuate, because actually he got out and didn’t have do it.

Again he had to leave the centre to do that, though?---Yes, he did.

That was signed off is a high level?---Yes.

But the initiative for the thing to happen in the first place, that was – came from whom?---Myself and Jimmy.

I will take you now back to that page that is on the screen in front of you, at line 5, because it touches upon the very things that we’re talking about. Do we take it that things like the boxing program or the cycling that you’ve just mentioned are what you’re referring to in that passage when you talk about Jimmy trying to rehabilitate? Is that a shorthand way of expressing the sorts of things that you’re talking about?---Yep.

Then you go on to say, “He’s been shut down in any way possible and any credit is being taken by Russell.” And you qualify it’s your personal opinion, but I’d like you to explain the basis for that opinion?---Again, I know Jimmy outside of the centre, so this is a completely impartial view specifically about work. I think that his involvement with the lads and his keenness to try and make them do more things outside of the centre was the reason why the behaviour of those guys improved, but whenever something good would happen or come of it – but I believe Russell would take the credit and if it – if something went wrong in, like maybe the kid was late or the kid had an incident, he would shut it down straightaway or look for any excuse to stop something good that was happening. And there were other things that weren’t sporting related which myself and Jimmy tried to start when we wanted to get them to do a food van for the homeless guys up the esplanade, but we kept getting told that, “No, it won’t work, and we can’t do that.” But we were just trying to do some stuff that would be different to what was currently being used, because it wasn’t really working.

Well, just picking up on that specifically, you tried to get a food van going for the benefit of homeless people; is that right?---Yeah. There’s a food van that hands out, I believe to the homeless people on Friday, some meals. And we thought it would be a good idea for the boys to make some sandwiches at the centre that they could then add and give and spend some time talking to people.

Stop you. “We” being you and Jimmy - - -?---Yes.

- - - thought it would be a good idea?---Yes. Thought it would be a good idea.

What did you do with that idea? Did you suggest - - -?--- We spoke to the people from the food van.


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Yes?---And Jimmy, I believe, asked Salli about it. We were told no, so it went no further.

It’s your understanding that was vetoed by Ms Cohen; is that right?---Yes, that’s right.

Okay. You’ve mentioned in the interview at page 66, line 25, something which is consistent with what you’ve said today, namely that Mr Caldwell wouldn’t leave his office, but when a visitor came he’d been all over the place and looking around.

You see that?---Yes.

You’re smiling. Why is that?---It just reminds me of when I said that, and that’s true.

Well, can we just tease this out a bit. What sort of visitors are you talking about?---If we had an official visitor, or someone important come to the centre, Russell would be shaking kids’ hands and making every effort to – I guess look like Jimmy did without anyone watching.

And on these occasions you would – you saw this happen whilst you were on the floor; is that right?---Yes.

On these occasions is it your recollection that there were ever many detainees in the BMU?---I can’t remember directly when a visitor would come in, kids were in the BMU but yes, there were generally boys in the BMU, but you know, it would vary from time to time.

Right. I’m just wondering whether it was ever different when visitors were there, or how often it might have been that visitors might have seen people – detainees in the BMU?---I would be guessing.

Okay. Thank you. Alright. Well, look, you heard Mr Zamolo’s evidence yesterday, most of it at least?---Yes.

You’re aware of the suggestion, indeed the criticism that you and Mr Zamolo, Mr Sizeland formed some sort of boys’ club?---Yes.

And indeed I think Mr Zamolo said he wouldn’t be surprised to hear that people called it “the boys’ club”?---Yes.

Did you ever hear that phrase whilst you were working there?---Yes, I heard ..... office a few times.

And - - -?---I thought it was just a joke. Jimmy, myself, and Mr Zamolo had a good relationship, in fact, I was quite close friends with Conan and Jimmy, but I am also a


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professional, and I was able to separate my relationship at work from our relationship outside of – but we were supportive of each other and our roles, of course.

You’ve indicated and accepted that you had a close relationship with Mr Zamolo?---Yes. At the time.

At the time. You worked closely with him?---Yes.

You would have seen, for example, that footage yesterday of a detainee being dared to - - -?---Yes, I did.

- - - eat something. Had you seen that before?---No, I had not.

Had you seen Mr Zamolo use his smartphone to record things around the centre?---Not record things, no. I’d seen him send a text message to his wife. I believe it was a time when things were hard for him at home and he had said to me, “I need to make sure I touch base with her”, but I had not seen him record anything, no.

The acknowledgement is – and the evidence would suggest – that it wasn’t infrequent that he might produce his smart phone and indeed use it to record things. Is your evidence to this Commission that you never saw him do that?---That’s right. Like I said, aside from the time when he sent the text message, I never saw him do recordings of lads. I – I do know that the recording that I saw yesterday was in M Block.

Yes?---So I – and I didn’t work in there.

Alright. What about the acknowledgement that he might have pretended to use it to record, for example, boys in the shower who might have been taking too long? Were you aware of him using it as a threat, in effect to - - -?---I was not aware of that. I believe there was something ..... he might have shown me ......

Yes?--- .....

Well, you’ve addressed that in your statement, haven’t you? You’re aware of the direct proposition that you were present?---I was shown a photo of a boy with no clothes. That did not happen.

Alright. What about other YJOs bringing their phones into the centre. Were you aware of that as a common enough practice?---Yeah. I mean, from time to time guys would send a text or something. It wasn’t really policed as well as it should have been, but I don’t believe that anybody had the intention of using it for a malicious purposes if they had their phone.

Well, was it policed at all?---I had never heard of someone getting warnings or anything, no.


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Alright. Well, we will wrap this up with just an opportunity, I suppose. You heard Mr Zamolo’s evidence about things like poor training, weak management, staff who were ill-suited to the job. Do you have any general comment to make about those aspects of his evidence?---I don’t think that people were well equipped, going into the job, and it’s unfortunate that when things happened thereafter, that there was no one we could really talk to or lean on, and it was sort of a – the higher management wiped their hands of it when something had happened. For example, the incidents that took place where someone’s head would roll, management were quick to say, “But that was your fault.” And we had no training. We didn’t know – we didn’t know an alternative way to handle those particular things at the time, so I do feel sorry for the officers who had to sort of deal with that.

And finally, you can confirm, or you’ve made reference to the fact that it’s said that you did – were shown a photo on Mr Zamolo’s phone. I understand you reject that?---Yes.

But it’s the case, isn’t it, that the police have not spoken to you at any stage about - - -?---No, they have not.

And just on that, have you ever made yourself hard to find?---No.

No?---I – I travel a little bit with my sport.

Yes?---So – but my email address is the same since I was 15.

And in - - -?---Same as it was on there.

Okay?---Same phone number, so.

Indeed, you’ve got a web presence, because of your fighting career?---Absolutely. I don’t have Facebook or anything like that, but I do have a couple of social media – I have an Instagram account which you can message against my name. So - - -

And can we take it that had the police approached you would have cooperated with their investigation?---Absolutely. I flew back from overseas to do my interview about the 16th incident. I have no problem .....

Alright. Thank you?---Thank you.

Just excuse me for a moment. I haven’t tendered the interview which was supplementary tender bundle tab 86 and I understand that needs a freestanding exhibit number.

COMMISSIONER WHITE: Yes. Thank you. Exhibit 107, thank you.

EXHIBIT #107 INTERVIEW OF MR KELLEHER


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MR CALLAGHAN: Commissioners, I have nothing further for the moment. Mr Kelleher is in that category of witness who will receive a fresh summons for other matters. I understand there have been three grants of leave to cross-examine, with time limits imposed. In that respect, we have another witness due to give evidence by video link at 11.20, as I understand it. If the counsel to whom leave has been granted adhere to those time limits there will be no difficulty with that, but the timetable does not admit of much variation at this stage.

COMMISSIONER WHITE: Thank you, Mr Callaghan.

MR O’BRIEN: Can I rise to make just one point.

COMMISSIONER WHITE: Mr O’Brien.

MR O’BRIEN: I don’t think I need to travel over there ..... to be very brief.

COMMISSIONER WHITE: Well, I’m not sure. Just see how the recording – that’s always a problem, Mr O’Brien. Even though your voice is quite clear in the courtroom, it may be difficult for other purposes.

MR O’BRIEN: Paragraphs 13 to 53 refer to Dylan Voller. The statement has been tendered in entirety but those paragraphs haven’t been touched upon in these proceedings today.

COMMISSIONER WHITE: No.

MR O’BRIEN: And they will be dealt with subsequently. And, of course - - -

COMMISSIONER WHITE: Yes.

MR O’BRIEN: - - - we’re reserving our right to cross-examine in relation to those portions of the statement.

COMMISSIONER WHITE: That’s been foreshadowed and it’s well understood. And I’m sure Mr Kelleher knows that. It has been explained to him that there will be some further cross-examination in matters in connection with Dylan Voller.

THE WITNESS: Yes, your Honour.


MR O’BRIEN: Thank you, Commissioners.

COMMISSIONER WHITE: Thank you. Mr Lawrence.

<CROSS-EXAMINATION BY MR LAWRENCE [10.26 am]

.ROYAL COMMISSION 21.3.17 P-1555 B. KELLEHER XXN©Commonwealth of Australia MR LAWRENCE

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MR LAWRENCE: Yes. My name’s Lawrence, I’m the barrister for the juvenile who’s referred to as AD, and somebody kindly is going to give you a note explaining who AD actually is – was. Do you recognise the name?---Yes, I do.

You know that kid?---Yes, I do.

You remember that kid?---Yes.

You remember him in the BMU?---Yes.

You remember dealing with him on the night of the gassing incident?---Yes.

You remember trying to talk him down on the night of the gassing incident?---I do.

Okay. Now, before you’ve come to give your evidence Ben – Mr Kelleher – have you seen footage of the incident on the night of 21 August?---I have.

And do you recognise yourself in any of it?---Yes.

Do you hear your voice in any of it?---Yes.

And do you recognise others in it?---Yes.

It’s been referred to earlier – you did that interview, I think it was a couple of months later, with the Children’s Commissioner here in Darwin. I think you were represented by a union rep?---Yes.

And you answered all the questions honestly and frankly and as best you could as your memory served at the time?---Yes.

You said you had nothing to hide. And it was in there that, of course, you told them that the BMU was a shithole?---That’s right.

And it was used for punishment and I think you also told them that they were only allowed out, at least initially, for 30 minutes a day?---Based on a couple of the IMPs, yeah. That wasn’t always the case. Sometimes it would vary depending on the behaviour, or depending on what particular IMP had been given to us.

You actually tried to get them out for a bit longer at times, didn’t you?---If I – if I could. It would be better for me to be out playing basketball than sitting in there.

And forgive me for going over, but I just need to confirm on behalf of my client: the concept of the stuff called Intensive Management Plans, they were just rubbish, weren’t they?---My opinion is that they were.

They were just cut and paste and basically every one of them just looked the same?---Yes. We had to follow them though nonetheless.


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And the kids didn’t get any schooling while they were in that BMU?---Again, it depended on the IMP.

MR CALLAGHAN: Commissioners, I have to object, given the time limits. This is, at the moment, almost line for line areas that have been covered in precisely the same terms.

COMMISSIONER WHITE: Thank you.

MR LAWRENCE: The objection is going to take longer than this questioning.

COMMISSIONER WHITE: Mr Lawrence, you can be disciplined about this if you choose to be. We’ve just heard this evidence, so - - -

MR LAWRENCE: Alright.

COMMISSIONER WHITE: So you’ll have some useful and interesting questions to ask Mr Kelleher, but if you use your time to repeat what’s already happened, that’s a bit wasteful.

MR LAWRENCE: Alright. Well, my client, AD, whom you know, he was in there in August for 17 days straight; correct. Or you accept that?---Yes, I accept that.

And he tells me that he complained every day he was in there?---To me or to everybody?

To everybody?---Okay.

He wanted to know when he was getting out?---Common question from the lads.

Yes. And he also said that he told people in complaint that he was being treated like a dog in there. Would you agree that AD said that - - -?--- ......

- - - during that period?---He did.

A lot of them did?---Yes.

Now, the door of his cell – he was in cell 3, BMU 3, just tell me about that. That’s got a lock on the outside?---A key lock and a Judas hatch.

A Judas hatch to put the meals in?---Yes.

And the key lock, you can only lock it from the outside?---That’s right.

And?---The keyhole goes right through the – you can block it or whatever from the inside.


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Yeah. And the Judas hatch, is that area of the door where you open it up and you get your meal put it; correct?---That’s right.

And AD tells me that in his cell there was nothing but a toilet bowl. There was no bubblers, there was no washing basins, there was no running water. You’d agree with that?---My understanding – my understanding is there were bubblers, but often they didn’t work.

Alright. And there was a concrete area where if you had a mattress you put the mattress but sometimes the mattress was taken away from them?---Yes.

And there was nothing else in that cell?---Nothing.

And it’s about what, four by two, three by two?---Yes.

There’s no fan in the cell?---We had often pedestal fans outside to keep the air circulating, but nothing inside.

There’s no air-conditioning?---No.

There’s a couple of fans in the courtyard area?---Yes.

But that’s it as far as ventilation is concerned?---Yes.

So the ventilation’s terrible?---Poor, yes.

It’s hot?---Yes.

The place stunk?---Yes, it did.

It was oppressive?---I believe so.

And it affected the kids in there the longer they were in there?---Yes.

And you witnessed that?---Yes.

And you reported it to management?---Yes, I did.

You warned them that you had concerns that this had to stop?---Yes. Not every day, when they complained every day, but there were numerous occasions I told them that I think it would be better if we had some changes to the time they spent there and all that stuff.

And this Behaviour Management Plan, which is rubbish, they asked for it. The kids knew about it didn’t they?---They did.

And they asked for the plan?---From time to time.


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Yes. Because that would give them an indication perhaps - - -?---Of how long ......

- - - of how long they were going to be from there. But you couldn’t give them one?---Not always, no.

Because there wasn’t one?---Well, given some of their behaviours it was then assigned as a bedroom to them. So they would not have any accommodation to go to thereafter because the plan didn’t have an end.

Yes. And look, let’s go to the daily incident itself. You were – you were in work that day?---On the 21st.

Yes. The 21st. It was a Thursday?---To my – to the best of my memory I finished shift, went ..... but I got told to come back, yes.

Right. So you worked that day. Now, would it be fair to say at that stage as far as AD – as far as you knew AD was concerned, there was no plan to release him?---I didn’t – I didn’t know.

You didn’t know?---No.

As far as you were aware, he was in there indefinitely?---As a bedroom, yes.

And he had been in there 17 days?---I guess so.

You accept that?---I accept that.

23 out of 24 hours?---Depending on how long I was allowed to, or that my staff – my colleagues were allowed to bring him out for, yeah.

He was never out – he was never allowed out of that cell more than two hours a day, was he?---From my memory, no, not more than two.

Now, you’ve been to work, you go home, you’re at the gym?---Yes.

With Conan?---From my memory we went and did some training and then I went home. That’s when I got phoned by Jimmy Sizeland.

But you’re at the gym with Conan Zamolo?---Yes.

Because you went to the same gym together?---No. I trained at a different gym, but from time to time we would – after work, just go and do some weights. Or – you know, it wasn’t my specific sports training that we did there, but we’d go and do weights.

Anyway, you got the call and you went there with Jimmy Sizeland, the three of you in a car?---I got phoned while I was at home, worked up, I suggested that if it was an


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incident that had the kids going off – I was told that all of the kids were going off, then we should pick them up, because I was just with them, freshen my memory, “Let’s get them as well.”

Sure?---Then we went together.

And you arrive at Don Dale and what you witness there, AD’s behaviour aside in the courtyard, because by this stage he had got out of his cell, AD’s behaviour aside, what you witnessed when you got to Don Dale as far as management and YJO is concerned was complete chaos?---Yes.

You agree with that?---I agree with that.

A complete shemozzle?---Shemozzle.

People were flipping out?---Yes.

Overreacting?---Absolutely.

In a tizz?---Yes.

COMMISSIONER WHITE: Alright. Okay. Thank you.

MR LAWRENCE: And there was a complete and inadequate lack of leadership to react to the situation which was AD in the courtyard?---When – in my opinion, when James arrived, things were tightened up a lot.

No, before that though?---Yeah. I don’t believe that anyone was equipped to handle the situation at all.

In fact, you told the Commissioner – Children’s Commissioner this: poorest display of leadership that you had ever seen?---Yes.

“Running around like headless chooks”, you said?---Yes, I did.

Now, you knew AD?---Yes.

You’d known him for a while?---Yes, I had.

You’d had dealings with him?---Yes.

You’d had conversations with him?---Many times.

He was a good kid?---I believe so.

And you thought immediately, or virtually from the off, “I’ll go and have a word with this kid”?---I would try to engage him, yes.


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And you did that. You went down to the courtyard area, or at least the door there, and you looked at him?---Yes.

And you saw him behaving?---I did.

And you’d never seen him behave like that before, had you?---No.

He’d completely lost the plot?---Yes, he had.

He was angry?---He was .....

He appeared angry?---Yes.

He was shouting and swearing, and you were concerned for him?---I was.

But you still tried to engage with him?---Yes, I did ......

And you went in there. In fact, you grabbed a helmet?---Yes.

To protect yourself?---Yes.

Because he was armed?---He was.

Did he have a piece of aluminium light fitting?--- ..... some of the bricks were falling out of the BMU wall, so he was throwing them through the broken windows at the staff, so there were two doors that were between the BMU, the admissions corridor and where I was talking to him. So I opened it a small amount so he could hear me. The other windows were broken, so there was the glass and whatnot, and I was just trying to engage him through there.

Okay. And that didn’t work initially?---No. He didn’t want to listen to me at that time. He wanted to see Jimmy, who he thought was responsible for his ......

In fact, he told you to eff off?---He did.

And he wanted to speak to Jimmy because he conveyed to you that he had thought that Jimmy was responsible for putting another order on him that was going to keep him in the BMU for longer?---That’s right and that was incorrect.

Well, that might be right, but he appeared to believe that?---That’s what he thought, yes.

And, in fact, you said he was angry. When Jimmy appeared close to you or behind you, he actually got angrier towards Jimmy, didn’t he?---Yes.

So his anger was really at Jimmy rather than yourself?--- ......


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And so you couldn’t bring him down at that stage?---No, I couldn’t.

Now, you’ve never received any training from the Department of Corrections in negotiation skills?---No.

Or at deescalating situations?---No.

Do you think you should have?---Absolutely. I said before I think the emphasis should be on verbal consultations rather than physical.

Yes. Are you aware that the Northern Territory Police of a specific discrete unit that are set up to do that kind of thing?---I wasn’t aware.

MS BROWNHILL: I object to the relevance the question. The knowledge of this witness about a police department is neither near nor there.

COMMISSIONER WHITE: It might be quite relevant, Ms Brownhill. I’m assuming Mr Lawrence is going to make a suggestion.

MR LAWRENCE: Yes.

THE WITNESS: I was not aware of that.

MR LAWRENCE: Yes. I will be making a suggestion to all the Corrections officers who made decisions that night - - -

COMMISSIONER WHITE: Well, exactly.

MR LAWRENCE: - - - that didn’t include the Northern Territory Police.

COMMISSIONER WHITE: Correct. Yes. So that’s clearly where it’s going.

MR LAWRENCE: Thank you.

Now, anger is part of life?---Agreed.

We all lose our temper, don’t we?---Yes.

And had you ever seen AD lose his temper?---Not that way. AD was a – he had his moments in terms of losing his temper. That night in particular, I was unable to deescalate him verbally but before that, many times, I had.

Yes. In fact, let me take you to your statement if I can. Forgive me, I don’t know what the exhibit number is but it’s at paragraph 50. Can someone assist me. 106. Thank you. Paragraph 50, do you have that there, Ben?---I do.

Yeah, it says here:


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I could never imagine being violent towards a child or a detainee.

COMMISSIONER WHITE: Right. We can read that. It’s on the screen. Thanks, Mr Lawrence.

MR LAWRENCE: Alright.

So you had often, prior to this, been able to defuse situations?---With AD, yes.

And you were hopeful of doing it that night?---I was.

Now you’re, of course, a professional mixed martial arts fighter?---Yes.

And you have been for many years?---Yes.

So you’re expert in defending yourself?---Yes.

It’s part of the game. The – that night when you were out there, there was also three prison officers. Do you remember them arriving?---I remember them arriving, yes.

And two of them were trained members of the immediate action team?--- ..... I’m aware of them.

Yes. And they were all kitted up with helmets?---Yes.

Shields, batons, shin pads, arm pads?---Everything.

Boots. Everything?---Yes.

Including gas?---Yes.

And there was also an Alsatian dog there as well?---There was a scary dog there, yes.

A scary dog there. A dog that scared AD that night?---He was scared of the dog.

Yep. What was your opinion as to what chance AD had against all of that that night?---Exclusive of the gas?

Yes?---Still nil.

COMMISSIONER WHITE: What was your answer then, Mr Kelleher?---None, nil. I do believe though that he was in a mind – a state of mind where he could have hurt someone seriously with the stuff that he had on, so it’s a hard decision for people to make, I think.

MR LAWRENCE: Yes. But the narrative goes – I’m wondering, were you around when AD was shouting out, “I’ve been in the back cells for how long, bros”?---I was.


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Yes. And he said, “I’ve been stuck in here for how long?” Do you remember him shouting that out?---He said a lot of things. That was ..... he said.

Yes. So did you get the impression that he was disorientated as to home as to how long he had been in that particular unit?---That particular way of speaking for those kids would have been – he was just saying “I’ve been in here for a long time”.

Alright. Were you there when somebody said:

He’s throwing a fucking steel thing out and fucking got me on the arm.

Were you there when that - - -?---I don’t think so. I believe that was – am I allowed to say the staff names, I believe that was Jermaine on the admissions side.

Right?---And my particular place was in the corridor we just spoke about on the other side. I don’t remember that.

Okay. You heard that, though, on the footage?---On the footage, yeah.

Yes. Somebody says, “He tried to climb through the window and I’ve poked him back through”?---Yes.

And my instructions from AD is that he did try and climb through that window and jump down in the area which was full of Youth Justice Officers and, in fact, prison officers?---Yes.

Now, if that had happened, that would have been the end of it?---Yes.

But somebody made the decision to poke him back through. Do you know who that person was?---I don’t know who that person was.

What do you think of that decision?---Given the person’s lack of training, he probably didn’t know what was going on, but I wouldn’t have made that decision myself.

If you were there, you would have said, “Let’s go”?---Yes, stop it.

Yes. “Calm down, what’s up, this is only going to get you into more trouble”?---It’s finished, yeah.

Yeah. Were you there when somebody says, “Go grab the fucking gas and fucking gas them through here. Get Jimmy to gas them through here.” Were you there when that was said?---No. And I don’t believe it was Jimmy’s choice what method we used.

Right. Okay. Were you there when it was said, “We’ve got to wait for approval first. It will make my job easier if you show Ken” – and we assume that’s Ken


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Middlebrook, “He’ll just go yep, go bang, go fuckin get them out.” Were you there when that was said?---I may have been there, but I don’t remember that being said, no.

Okay.

COMMISSIONER WHITE: Mr Lawrence, you are keeping an eye on the time? There are other counsel who want to ask some questions and we do have a commitment for a remote video link.

MR LAWRENCE: Yes. I’ll only be a few more minutes.


MR LAWRENCE: Were you there when – this is when he was trying to get through the window and somebody else, “No, let the fucker come through because when he comes through he’ll be off balance. I’ll pulverise – I’ll pulverise the little fucker”?---I heard that on the footage.

Were you there when that was said?---No, I heard it on the footage.

Do you know who said that?---It wasn’t a ..... it was a prison officer.

Was it?---Yes.

And that is something that you would never have done or said or wanted to do?--- ..... No. You can see by the way I speak to AD, I like the kid, I was trying to tell him to stop. I don’t want him to get hurt.

Well – and you tried earlier when he was going off his head?---Yes.

And then – you see AD tells me, instructs me, that when he heard that dog barking he shat himself?---Yes.

That’s what he says. He was scared and he gave up. He shut down. In fact, he said it, “I give up.” Now, you were told that’s what happened, weren’t you?---I was told that he wanted to speak to me again.

Yes?---I was also told that it was too late and I was – I was not allowed to do that.

Well, let me just take you through that because my instructions are that AD was terrified of what the dog could do to him and that’s when he, thankfully, calmed down, and he actually told people “I give up.” And then he said “I want to speak to Ben Kelleher”?---Yes.

“I want to have a yarn with Ben Kelleher. Get Ben,” he said. And you were told that he said that, weren’t you?---I was.


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Were you there when he was saying that?---No, I have no recollection of him saying it to me or hearing it, but I was told that he wanted to speak to me.

Yes. And you were also told, when Ben – sorry, when AD said that, that the response from your colleagues was, “No, you’ve had your chance”?---Yes, it’s too late.

Who said that to him?---I don’t remember who said it, but it was said, and I was told I’m not allowed to speak to him anymore. The situation was now under control by management, so I had no - - -

I understand that, but do you know who the guy was that said, when AD asked to speak to you, “No, you’ve had your chance.” Who said that? You’re on your oath?---If I get to see the footage I’ll know the voice. I can’t remember from memory right now.

Was it a YJO?---It was someone from Youth Corrections, yes.

Okay?---Because I do remember the – that being said.

Were you asked there and then he wants to speak to you?---In terms of time frame, I can’t remember because it was all pretty hectic but I was told, “AD wants to speak to you”, and the people who I was with, who were management, said no.

COMMISSIONER WHITE: Delete name, thank you. Sorry, Mr Kelleher, I know it slipped out because you’re trying to relive the evening, but we’re not saying any names of young people?---I’m very sorry.

That’s all right?---Sorry

MR LAWRENCE: And what you were told was, “No, you’ve had your chance, don’t talk to him, he’s finished now”?---That’s right. Only thing is I cannot remember who was that person who said that.

Yeah. And look, the reality is, is it not, from your experience generally, and with this kid directly, that when he had said that and you had been given the opportunity to go and speak to him, you would have had a damn good chance - - -?---Yes.

- - - of bringing him in peacefully?---That’s right.

You believe that?---I do.

COMMISSIONER WHITE: Is that it, Mr Lawrence.

MR CALLAGHAN: It has to be Commissioner.


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COMMISSIONER WHITE: You’re encroaching on your colleagues’ time, and so they won’t be at all happy with you if you do that, I’m sure.

MR LAWRENCE: One more question, please.

COMMISSIONER WHITE: No. You really have gone over, way over the time limit.

MR LAWRENCE: Alright. Thank you.

COMMISSIONER WHITE: I’m sure you’ve asked the questions you agreed. Thank you, Mr Lawrence.

MR LAWRENCE: I apologise for being greedy.

COMMISSIONER WHITE: I think you may have to buy them lunch.

MR CROWLEY: May it please the Commissioners, Crowley is my name. I appear on behalf of vulnerable witness AY.

COMMISSIONER WHITE: Yes, Mr Crowley.

<CROSS-EXAMINATION BY MR CROWLEY [10.51 am]

MR CROWLEY: Been granted leave to ask some questions.

Mr Kelleher, can I ask you about the professional fighting you were doing?---Sorry, who’s AY?

COMMISSIONER WHITE: Someone will give you that information. Could somebody give Mr Kelleher information about vulnerable witness AY.

Does that - - -?---Yes, understood.

Thank you.

MR CROWLEY: Mr Kelleher, the professional fighting that you’re doing, the mixed martial arts, there were other officers at Don Dale that had a shared interest in that sport?---What do you mean by “shared interest”?

Other officers who watched the sport?---Absolutely.

Talked about the sport?---But we all watched rugby league, as well.

But there were officers who were come sometimes to your fights?---Yes.

.ROYAL COMMISSION 21.3.17 P-1567 B. KELLEHER XXN©Commonwealth of Australia MR CROWLEY

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And there were officers that you would speak to socially about mixed martial art fights?---Absolutely.

You would watch UFC together?---Watched lots of sports together, yes, we did.

Amongst those persons Conan Zamolo was one?---Yes.

Also John Walton?---Yes.

Chris Boyce?---Yes.

And others as well?---Others as well.

The subject matter, fighting, mixed martial arts, that was something you talked about at work too, wasn’t it?---With the children or - - -

Amongst the officers?---Yeah.

And one of the topics of discussion about that subject was to talk about the types of moves or techniques that the fighters would use?---Not – not really.

For example, in that sport, grappling and take downs are part of the sport, aren’t they?---Yeah.

And that sort of thing would be discussed with the officers, they would talk about the type of moves that were shown?---Yes – yes.

That they’d seen on TV?---Yes.

Or they’d seen when attending actual events?---That’s right.

Now, did you ever use any of those type of techniques when you were a YJO at Don Dale?---Outside of the centre or on the detainees?

On the detainees?---No.

Given that you were somebody who was trained in the sport and had a knowledge of what those techniques were, are you able to tell us whether you ever saw other officers trying to copy those type of moves when they used force to restrain detainees?---I don’t think they were trying to copy them, no. I think that any time there was a takedown used on the detainees, given their riled up nature, and what they were doing, the guys just did the best they could with what limited training they had. And if that meant tackling a kid like a rugby tackle around the ankles, to tie his legs up, then he was copying a rugby league tackle. There was no reference to mixed martial arts in terms of, “I’m going to use that particular take down or move on a child”, no.

.ROYAL COMMISSION 21.3.17 P-1568 B. KELLEHER XXN©Commonwealth of Australia MR CROWLEY

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Yes. Just so I’m clear, I’m not saying that there was necessarily a reference to it, but because you’re somebody who knows and can recognise that type of technique - - -?---Yes – yep.

- - - did it appear to you that there were officers who were trying to copy amateurishly that type of technique when they going to force a restraint?---I don’t think they were trying to copy it, no. I think that if you try to grab a kid or a plan in a takedown manner, it all looks relatively similar anyway, but the objective is to put that person down on the floor and tie them up, so they can’t do – inflict damage. So I don’t think I’m qualified to make that call.

From what you saw, there would be instances where officers would just do whatever they could?---To try and deescalate the kid, yes.

And that means not necessarily using techniques that they’d been trained in, just whatever they could?---That’s right. But there were no training techniques, aside from grab the kids’ wrists and, as I mentioned before, that doesn’t fly when the kid’s throwing punches or threatening to spit or gouge your eyes out. It doesn’t really work.

Thank you. Those are the questions I have, Commissioner.

COMMISSIONER WHITE: Thank you. Thanks, Mr Crowley. Mr O’Brien-Hartcher.

MR O’BRIEN-HARTCHER: Thank you, Commissioners. It please the Commission - - -

COMMISSIONER WHITE: You know that we’re on a pretty tight time, so don’t repeat the questions that we’ve already had put to this witness, will you.

MR O’BRIEN-HARTCHER: I’ve missed some of the evidence this morning, and I will do my best, Commissioner.

COMMISSIONER WHITE: You should have been here.

MR O’BRIEN-HARTCHER: I should have. You’re quite right.

COMMISSIONER WHITE: Well, I’m sure Mr Callaghan will remind you if you .....

MR O’BRIEN-HARTCHER: No doubt.

COMMISSIONER WHITE: Going somewhere where we’ve been.

<CROSS-EXAMINATION BY MR O’BRIEN-HARTCHER [10.56 am]

.ROYAL COMMISSION 21.3.17 P-1569 B. KELLEHER XXN©Commonwealth of Australia MR O’BRIEN-HARTCHER

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MR O’BRIEN-HARTCHER: Mr Kelleher, I want to talk to you about - - -

COMMISSIONER WHITE: Just say who you appear for, for Mr Kelleher’s benefit please, Mr O’Brien-Hartcher.

MR O’BRIEN-HARTCHER: Yes. That’s what I’m doing, if it please the Commission.

COMMISSIONER WHITE: Alright. Good.

MR O’BRIEN-HARTCHER: I represent a young person called AG. Do you know who I want to speak to you about?---Yes, I do.

Okay. And you were here yesterday and you heard all of Conan Zamolo’s evidence; is that right?---Not all of it.

Okay. A lot of these questions probably won’t be a surprise to you, but this is an incident that took place outside when you and Conan and Jimmy Sizeland were speaking to a young person known as AJ. Do you know about this incident?---Yes.

Yes. And it was going to be outside because this person was – wouldn’t be contained in a small area and there was good CCTV coverage of that area; is that right?---To my understanding it was outside because he had just had a meeting with his case worker in relation to his behaviour.

Okay. So it had nothing to do with good CCTV coverage?---There is fantastic CCTV coverage everywhere, so - - -

Is there?---My understanding is, yeah, ......

Okay. We don’t seem to have a lot of it though, do we.

COMMISSIONER WHITE: Well, that’s a gratuitous comment, Mr O’Brien Hartcher.

MR O’BRIEN-HARTCHER: Thank you, Commissioner.

When Mr Sizeland spoke to him, AJ started to get upset. He asked AJ to go – Sizeland asked AJ to go back to his room. AJ walked away and feinted a punch at Sizeland; is that your evidence?---Yes.

He actually hit Mr Sizeland, didn’t he, AJ?---Not until he ground stabilised. Feinted a punch meant he - - -

I understand what the phrase means, but what I’m asking you is whether he actually hit Jimmy Sizeland?---Not initially, no.


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Alright. Did any guards get injured during this incident?---From recollection, I think Jimmy just got some cuts, grazes.

Okay. Now, Sizeland grabbed AJ first?---I – I think he – I think Conan and I may have, and Jimmy helped us to get him down.

Okay, so you and Conan grabbed him first and then Jimmy came in afterwards to get him to ground?---Yes.

Okay?---It was – given the situation escalated that may have been half a second.

Alright. What surface did you get him to ground on?---To the courtyard area by the basketball court is like grass and concrete.

Alright?---I don’t remember.

Rough?---Grass or concrete.

Alright. And where did you have hold of AJ?---I’ll be hazarding a guess. Given our positions when the situation happened, probably his arms. His arm .....

Okay. What about Conan Zamolo?---Probably his other arm.

Okay. And what about Jimmy Sizeland?---Legs.

Okay. And who was on top of him?---Not allowed to lie on top of him, because it might asphyxiate him.

Okay. So, in your experience, you’ve never been on top of a detainee in those sort of situations?---On top, you mean just lying on top of the guy? No, we would pin the kid.

Yes?---You can’t block his arms.

Alright. So you’ve never put a knee in the back?---No, not a knee in the back.

Have you ever seen anybody do that?---I’ve seen it happen.

Okay. And AJ was struggling during this episode?---Big time.

Okay. And you three were trying to subdue due him?---Yes.

Okay. You say, in paragraph 56, of your statement that there would have been camera footage of this report, if there was any truth to it; is that right?---That is true .....


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Okay. And you say that there was fantastic CCTV coverage?---Yeah, there’s – by that I mean there is plenty of cameras, so it should be all captured. Everything that we do should be captured.

Alright. Thank you to the technical folk. And in your incident report, which is an attachment to that document – and I’m sorry, I don’t know which annexure number it is – you say that all the footage was recorded to the camera; is that right?---Yes. That’s an assumption based on the fact that they’re always on, everywhere.

Okay. Do you know where that CCTV footage is?---I guess it’s on iCloud or in a big hard drive somewhere. I – we don’t ask questions like where did the CCTV footage go. I just know that it’s – if you need it, you can call upon it.

Okay. So your understanding is that it still exists and can be accessed somewhere?---Yes.

And if you were going to have an incident where – or if there was an occasion where there was an incident, how would you know how to get to the CCTV footage?---Ask the technical staff to get it for you.

Sorry, my question?--- ..... based on - - -

Sorry, my question was unclear?--- ..... date and time that that particular incident happened.

Yeah. So how – so, for example, if you need the CCTV footage from this, or management needed the CCTV footage from this, how would they find out what date and time this incident occurred?---There would be reports.

Okay. IOMS reports?--- IOMS reports, if that failed, based on the trouble you guys are having finding the right times for IOMS reports, the case worker would have had the time that he saw AJ.

Sorry, that – just use his – AJ?---I’m very sorry, I shouldn’t have ..... I’m sorry.

Thanks. That will probably need to be struck, Commissioners.

THE WITNESS: I’m trying to .....

COMMISSIONER WHITE: .....

MR O’BRIEN-HARTCHER: That’s all right. That’s all right. No, you’re right.

COMMISSIONER WHITE: The technology people are very alert to this, they’re just nodding every time it happens.

MR O’BRIEN-HARTCHER: Thank you, Commissioner.


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And so you did an IOMS report as a result of this incident?---Yes.

Okay. Could we see a copy of that IOMS report. I know it as an attachment to Jimmy Sizeland’s statement which is JS8.

COMMISSIONER WHITE: I’m going to ask you if you could go to the point pretty quickly, because we know what the point is, I think, because of the time. We’ve just got a problem with connecting remotely to the next witness.

MR O’BRIEN-HARTCHER: Thank you.

COMMISSIONER WHITE: So we’ll get the documents up. You can put the point that you want to put to Mr Kelleher. I’m sure we will be on top of it.

MR O’BRIEN-HARTCHER: Well, he heard all the evidence yesterday so - - -

COMMISSIONER WHITE: Much of it.

MR O’BRIEN-HARTCHER: So there’s no surprise here. Feel free to act surprised, if you want, to my questions, but I take you to the top of that report, Monday, 16 June 2014 at 8.27 am. That’s your report, isn’t it, just at the bottom? Yes?---Yes.

And at the top that’s the time and date it was created; is that correct?--- .....

COMMISSIONER WHITE: We had some evidence about that, perhaps you weren’t here this morning, Mr O’Brien Hartcher.

MR O’BRIEN-HARTCHER: My apologies. I was in and out trying to organise the next remote witness, your Honour---As I mentioned before, my understanding as it stands is that this particular time - - -

Okay. I don’t need to ask you about this. I understand you’ve been asked about it already this morning. What I’m going to suggest to you is that you three, that is you, Conan Zamolo, and Jimmy Sizeland wrote those reports together and you did it so you could obfuscate the process of finding out the correct date and time for this use of force on a detainee?---I’m mildly offended that you think I would do that ......

Alright?--- .....

Well, are you saying it’s purely coincidence that those three dates and times are created at the same - - -?---They’re not – they’re like that because the person that creates the initial attachment sets that particular time on the report and any subsequent attachments that we make are a document submitted underneath the same umbrella, so to speak.

And because we don’t have the CCTV footage of this, what I’m suggesting to you happened was that AJ punched Jimmy Sizeland, and he didn’t like it, and when you


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guys brought AJ to the ground, Sizeland was angry and he stomped on AJ’s head; is that right?---That’s not right.

Okay. But we don’t have any CCTV footage, obviously?---No.

And - - -?---If someone stomped on his head, I’m pretty sure a grown man stomping on a kid’s head on that surface that we’re spoke about would have caused more than someone to have witnessed that and just said it in passing. I don’t think that a minor or small graze or something would happen on stomping on someone’s head.

Right. Because we’re out of time I can’t really canvass that with you. [REDACTED INFORMATION]

MR CALLAGHAN: Commissioners, there are other applications to cross-examine Mr Kelleher and there is, of course, his own counsel to be considered. Having said that, the matters identified in the other applications do not appear to me to be things that need to be rehearsed in oral evidence. Mr Kelleher has been most cooperative with the Commission to date, and we are happy to request further written statements from him on the matters which other parties may wish him to address. Of course, he doesn’t have to.

COMMISSIONER WHITE: Mr Kelleher is returning, is he not?

MR CALLAGHAN: He is returning for a specific purpose, so if there was something that was particularly compelling it could be address. But as I say, the matters that parties have raised so far seem to me to be matters that could be addressed by him in writing as well as any other way. So - - -

COMMISSIONER WHITE: That might be true, Mr Callaghan, I would have thought it might be possible to give those who are remaining the choice about which way they wish to do it. And if it needs to be addressed orally it can be done when the next tranche of cross-examination.


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MR CALLAGHAN: Yes. I will be submitting we should exhaust the first option, though, and then if there’s a residuary category of matters that can’t be dealt with that way, then yes, there is the option of Mr Kelleher.

MS DWYER: Your Honour, can I place on the record on behalf of NAAJA that we would – we will make every effort to stick to a very tight timeframe, but we do ask for the opportunity, and say ..... part of procedural fairness to be able to put 10 minutes worth or 15 minutes worth of questioning to this witness in the way that we see fit in a structured cross-examination in cooperation with the Royal Commission as we have done to date.

COMMISSIONER WHITE: Thank you, Ms Dwyer. It might not be today, though, because of the constraints that we have with the remote - - -

MS DWYER: I understand, your Honour.

COMMISSIONER WHITE: - - - positioning of the next witness. Thank you, Ms Dwyer. Right. Well, we – and who are the others who have yet to ask questions.

MR ..........: In terms of re-examination, I don’t think I need to re-examine today.

COMMISSIONER WHITE: Alright. So you’re the only one. So Ms Dwyer – I’m sorry .....

MS GRAHAM: I may raise a late application to Counsel Assisting, but it’s something that I can cooperate with counsel in relation to whether something might be provided in light of ..... or whether it’s to be dealt with orally on a .....

COMMISSIONER WHITE: Thanks for that cooperation, Ms Graham. We’ll leave it at that stage then. Perhaps we can take a brief adjournment.

MR CALLAGHAN: Yes. I think we have to anyway, for the technical reasons.

COMMISSIONER WHITE: We do. Mr Kelleher, thank you for your assistance to the Commission this morning. You are released from your summons to be appear today. You will be issued with a fresh summons when the date is settled for you to be asked questions about relating to Mr Voller, and Ms Dwyer may want to ask you questions in cross-examination about this evidence today. Are you comfortable with that?---Yes. Thank you.

<THE WITNESS WITHDREW [11.08 am]

COMMISSIONER WHITE: Thank you. Alright. Is it - - -

MR CALLAGHAN: 11.20 we’re resuming – I believe the link is booked for.

.ROYAL COMMISSION 21.3.17 P-1575 ©Commonwealth of Australia

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ADJOURNED [11.09 am]

CLOSED SESSION ENSUED

[REDACTED INFORMATION]


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PUBLIC SESSION RESUMED

RESUMED [1.40 pm]

COMMISSIONER WHITE: Mr McAvoy.

MR McAVOY: Commissioners, I might make a few comments about the order of proceedings this afternoon, as they are a little bit out of the ordinary. I propose to start by calling Olga Havnen, who will need to complete her evidence by 3.15 in order to close the court for a vulnerable witness at 3.30. I can indicate to the parties that I propose to recall Ms Havnen in the criminal process hearings that will occur in the future and, to that extent, if there are some matters that are not reached this afternoon, well then, they may be able to be dealt with at that time.

The – there is an issue with respect to the vulnerable witness this afternoon, BH. BH will be giving his evidence from a remote location, Commissioner, and Commissioners, after the – well, in my view at least, was a very successful form of giving evidence with the – with me being in the room with the vulnerable in Alice Springs, when we were there last week. I’m proposing to go to the remote location and be with the witness to assist him with his evidence. That will mean travelling from the court precinct. I believe I can do that while the court is closed, but there are some procedural matters that I will want to deal with at the end of Ms Havnen’s evidence.

COMMISSIONER WHITE: You’re taking both witnesses, are you?

MR McAVOY: Yes, I am. Mr Goodwin will be in court while I’m in the remote room to deal with matters at this end, Commissioner, but there are some procedural matters that I would hope to deal with before the court is closed so that I can then proceed with the evidence with the witness unhindered.

COMMISSIONER WHITE: Mr Goodwin couldn’t do those, so that you could be there? How long will it take to you get to - - -

MR McAVOY: The remote location, it will only take me a short period. 10 minutes perhaps, Commissioner. But the issue is Mr Goodwin is presently in conference, and I haven’t been able to bring him up to speed with .....

COMMISSIONER WHITE: Alright. Well, 10 minutes is alright. I think we can manage 10 minutes.

MR McAVOY: Yes, I didn’t – I was hoping it wouldn’t be an issue. So with that in mind, I would call Olga Havnen.


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<OLGA HAVNEN, AFFIRMED [1.43 pm]

COMMISSIONER WHITE: Thank you. Would you kindly be seated?---Thank you.

<EXAMINATION-IN-CHIEF BY MR McAVOY [1.44 pm]

MR McAVOY: Thank you, Commissioners.

Ms Havnen, can you see the document on the screen in front of you?---Yes.

Do you recognise that document?---Yes.

That’s your signature that appears at the bottom?---Correct.

That’s your statement provided to this Royal Commission?---Yes.

Is that statement true and correct to the best of your knowledge?---It is.

Commissioners, I tender the statement of Olga Havnen, dated 16 February 2017.

COMMISSIONER WHITE: Exhibit 115.

EXHIBIT #115 STATEMENT OF OLGA HAVNEN DATED 16/2/2017

MR McAVOY: Thank you, Commissioner.

Ms Havnen, you’ve set out as an annexure to your statement a curriculum vitae. It’s – from that it’s obvious that you had a role as coordinator general for regional and remote services in the Northern Territory?---Yes.

What period was that?---It was for a period of approximately 12 months from October 2011 till August of 2012.

I just want to ask you some questions which may – might draw on your observations from that period and perhaps your – in your current role as well. If the witness could be shown page 67 of the Carney report, the report from Jodeen Carney. So that document is the Review of the Northern Territory Youth Justice System, and it’s a report from September 2011. If we could turn to page 67?---Yes.

And obviously that’s not the page. If I were to suggest to you that your predecessor, Bob Beadman made some comments.

.ROYAL COMMISSION 21.3.17 P-1578 O. HAVNEN XN©Commonwealth of Australia MR McAVOY

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COMMISSIONER WHITE: Can you just spell that surname.

MR McAVOY: B-e-a-d-m-a-n.


MR McAVOY: Your – I’m sorry, it’s page 37, apologise. And if you look at the fifth paragraph down starting with the words:

This is an issue about which the former Territory Coordinator General for remote services delivery wrote: “If all of that money and expertise was pooled and managed more strategically towards implementing a coherent and effective plan then some decent outcomes might emerge.”

And this is in relation to program funding. Was it your observation, when you were the coordinator general, that that proposition remained true?---Absolutely.

Do you have any view as to why it was the case that such – there seemed to be such lack of coordination in terms of programs?---I think there are a number of reasons. One, of course, is our current federal system, so the split between the Commonwealth, the federal government and the states and territories, which tends to have a level of duplication, that is shared responsibility between both levels of government, things like health, housing, education and employment and the like, and quite often what happens is that the federal governments tends to fund perhaps the not for profit NGO sector with some money coming through to the states and territories through either – you know, bilateral agreements or other types of funding arrangements. Those moneys can also be tied or untied grant moneys, but nonetheless what you find is there is a multitude of pools of funding that goes to different and disparate resources without any kind of coherent, overarching plan or any agreed approach as to what could and should be done. I think in my term as coordinator general for remote service delivery, I made the observation in my report that I would expect that probably something less than 60 cents in the dollar that was intended, particularly for remote communities, actually hit the ground.

COMMISSIONER WHITE: And Ms Havnen, has the Productivity Commissioner has something to say about this problem?---I think so, and I think this has been a perennial problem for as long as any of us can remember, despite – I think – numerous efforts and attempts by government to streamline funding and to have longer term sort of funding arrangements for service delivery, that doesn’t ever seem to eventuate.

COMMISSIONER GOODA: Ms Havnen, did you also include – I know there’s a lot of debate goes on particularly around the Commonwealth Grants Commission allocations to the Northern Territory, particularly that allocation for indigeneity. Maybe you want to tell us your concerns about that, if you have any concerns?---Well, of course. I think what tends to happen in jurisdictions like the Northern Territory, where we’re significantly funded at a much higher per capita rate


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than, say, other jurisdictions, I think it’s something like seven to one, that a lot of that money is indigenous specific based money or based on level of need, geographic isolation, remoteness and so on. So those sorts of factors together with disadvantage. However, what you don’t see is that level of funding in a proportional sense actually hitting the ground. I make the point that the Northern Territory, 30 per cent of the population here is Aboriginal. 80 per cent of that population lives outside the major urban centres, and I think these are major issues and challenges of a structural nature that need to be addressed, but I don’t see any evidence of any long-term planning by any level of government, be it the Northern Territory or federal government, to actually take a long-term view about how some of those needs are going to be met.

Would it be fair to say given the allocation for indigeneity, like, there’s a sum of money – mainly because the level of the indigenous population is not necessarily spent on indigenous .....?---That would be correct.

Yes?---And I think that has been borne out by some work that was done by the dealt of the Department of Chief Minister here in the Northern Territory, probably some eight or 10 years ago, that looked at where indigenous specific funding was actually going to. So even though the indigenous specific funds, even say in the areas of education, weren’t necessarily allocated on that basis and I guess the example I would use there was the case with Wadeye, with the case that they took to the Human Rights Commission.

Do you want to elaborate on that one?---Well - - -

COMMISSIONER WHITE: Otherwise .....

THE WITNESS: - - - I think what it says is that, you know, here’s funding that is notionally made available for the benefit, and the development specifically for Aboriginal people in the Territory, and those funds don’t get channelled to those locations and in those service areas that it would be properly allocated for.

Thank you.

MR McAVOY: Ms Havnen, are you in a position to comment from where you are now, noting that these events occurred after your time as the Coordinator General, as to the effect of the Indigenous Advancement Strategy program funding on the delivery of programs in Aboriginal communities in the Northern Territory?---Well, again I think it’s been a highly problematic process. When indigenous funding moved out of what was previously FaHCSIA, the Department of Families, Health and Indigenous Affairs, or whatever it was, across to Prime Minister and Cabinet, PM&C is – as you know, is a coordination agency, it’s not a service delivery arm of government, it had no experience in programs and funding, and the recent report was a fairly scathing one about the way in which those changes had been introduced and implemented. There were serious concerns, I guess expressed by Aboriginal people across the whole of the country, about the level of indigenous specific funding either being redirected to other government agencies and/or mainstream NGOs. I think it


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still remains problematic, and my reason for saying that is I’m not entirely persuaded that non-Indigenous organisations actually deliver a better outcome in terms of services or the quality or appropriateness of them, and that there has been clearly, I think, a reluctance by government to invest and to strengthen indigenous organisations.

COMMISSIONER WHITE: Ms Havnen, when you looked at the – if you have looked at the NGO proposals to deliver services, have you observed any part of that program to train or empower Indigenous communities to do what they are delivering to them?---I think that’s a really good question, and it’s one that I think perhaps governments need to take a much closer look at. My comment and observations would be that there’s been very little effort on the part of government or at any level of government to actually invest in what I would call organisational strengthening and capacity development. I think it’s an area that’s been largely overlooked for far too long, and if we’re serious about the long-term future and viability, particularly of remote communities not just here in the Northern Territory but across northern Australia, then I think governments have to get real about who are likely to be the long-term ongoing residents in those places and what is the capability and organisational maturity of those local service providers. I think by investing in them, strengthening that capacity and capability, would deliver far better outcomes.

Thank you. Can I ask that you might just slow down a tiny bit because although, in fact, our transcriber is keeping up extraordinarily well, this might be just a bit on the fast side?---Thank you.

MR McAVOY: I’d just like to take you – perhaps this is a good point to launch off into the next series of questions – I’d just like to take you to a section of transcript. It’s from the – it’s from the cross-examination of Mr Keith Hamburger. Do you know who Mr Keith Hamburger is?---Yes.

He was cross-examined last year in relation to his report by my learned colleague, Mr O’Mahoney, and if you could just have a look at the transcript from paragraph 15 – line 15 down to line 30. I think you don’t need to read more than that, but if you need more context we can make more available?---No, that’s fine.

So the general thrust of the cross-examination from the Northern Territory Government was that providing and acquiring specialist services in remote locations is both costly and difficult to achieve. Do you have any observations you can make from a – from the health specialist area about that particular topic?---Sure. Look, I would agree that – you know, it’s undoubted that it’s more expensive to deliver services in remote locations where transport and accessibility is problematic. However, it’s not impossible or insurmountable. Certainly, the Aboriginal community controlled health sector, particularly those ones that operate in the more sort of geographic remote regions, whether it be – you know, around the Katherine area, Katherine East, Katherine West or in Arnhem Land that it’s possible for those service providers to recruit and retain highly qualified and capable people. I think it has a lot more to do with the organisational culture, and attracting people with having


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the right fit and the right capabilities, I suppose, to undertake those work – that work in those really difficult and quite often challenging sort of circumstances. But it’s not impossible.

Are you able to give some examples of what you mean by difficulties presenting themselves through the wrong organisational culture?---If you have an organisational culture that is supportive of its staff, that you have flexible working arrangements, rostering, particularly having or engaging cultural mentors, all of those things provide additional support, particularly for non-Indigenous professionals who may not have a lot of experience working in remote areas. So creating an organisational culture that makes it attractive and supports those personnel, I think, makes a big difference.

And in your report as the Coordinator General in 2012 you talked about strengthening remote services in particular. Is it possible to say in general terms how that report was received and acted upon?---Unfortunately, I don’t think it really saw the light of day. You know, this was at a time where there was a change of government, clearly the incoming government wasn’t particularly interested, I don’t think, in anything that I had to say or any of the comments and observations or recommendations that I made in that report. However, some of them have been – some of those recommendations have been acted on, which is good, pleasing to note. I guess I would also say that there’s probably, given how much we rely on Commonwealth Government funding to provide and deliver services in remote communities, that that kind of independent monitoring role is one that’s probably helpful, and I think, you know, perhaps both levels of government may wish to reconsider a similar sort of mechanism. I think it’s helpful.

Thank you. Coming to the present now, can you look at paragraph 27 of your statement which should appear on the screen?---Yes.

In that paragraph you’ve set out some details about how the Danila Dilba Health Service was approached by the Northern Territory Government, in particular Territory Families, to provide social and emotional wellbeing support to youth at the Don Dale Youth Detention Centre and to provide an observer and information gathering role. Then at paragraphs 29 and 30 there’s some discussion about your and Danila Dilba’s understanding of the nature of the work that was to be done. That’s correct, isn’t it? That’s a fair summary?---Yes.

If you look at paragraph 30, it sets out a number of the multiple and complex needs that young Aboriginal people in particular have in detention. Can you just talk about your observation as to the prevalence of intergenerational trauma. You say that there’s a high prevalence for intergenerational trauma. How have you been able to discern that?---If I – just in very general terms on that one, we provide services to probably 13,000 Aboriginal people across Darwin and Palmerston. Many of those families will have experienced varying degrees of trauma from – including things like suicide, premature and early death, members of the stolen generation, many of these very vulnerable families will have also had family members, siblings, parents


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or whatever who have themselves been incarcerated or been removed from their own families. What we’re seeing is perhaps second and third generation children now coming into contact with the justice system who have come from those families that have had very difficult life experiences, and we would know that mainly because of the knowledge that we have through our own relationships with those young kids and their families.

Are you aware of any statistics or data collection that’s done which would capture - - -?---Not in a – not in a systematic way as far as I’m aware about, you know, the family histories and stories of those children that are currently coming into the youth justice system, but it’s certainly information that I believe should be gathered and collected, and I think that would be very helpful in terms of identifying those families who might benefit the most from very targeted intensive family support.

That was to be my next question?---Sorry.

COMMISSIONER GOODA: Can I – just a question on data collection, Ms Havnen. We’re struggling with a bit of terminology in the Commission and I was just wondering, do you have any data on the different – the de-aggregation of the Indigenous population by Aboriginal and Torres Strait Islander, like, how many Torres Strait Islanders would there be?---In the greater Darwin region?

Well, take – yes, to start with?---If you go from the ABS census data it would suggest probably total population of around 18,000 Aboriginal and Torres Strait Islander people in Darwin and Palmerston and the rural area.

And the break up between Aboriginal and Torres Strait Islanders?---Predominantly Aboriginal. Torres Strait Islander population here in the Top End, whilst quite a strong and vibrant community, is not large in terms of numbers.

Okay. That’s .....?---I wouldn’t be able to give you specific numbers. I would say, off the top of my head, maybe a couple of thousand.

Okay. And - - -

COMMISSIONER WHITE: And does your service, Ms Havnen, offer services to Torres Strait Islanders as well as Aboriginal - - -?---Yes, indeed.

- - - people.

MR McAVOY: And Ms Havnen, those census figures, being a snapshot, can’t take into account seasonal variations?---We’re able to collect, and we do collect, data on people who we describe as visitors to town, that is people who don’t have Darwin or Palmerston as their usual place of residence. We would provide services to two and a half, 3000 people each year.

In addition to?---In addition to our existing clients.


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You also note in the dot points to paragraph 30, that there are detainees who have been or are still in out-of-home care placements, some for longer than five years. Why is that of concern?---The primary concern, I guess, is that whilst I understand the need perhaps to have children removed from unsafe family environments, the fact that you’ve got children in long-term out-of-home care without necessarily, I think, an effective level of engagement with family and community, I think is really worrying, particularly when those kids come from remote communities and they’re perhaps being placed here in residential care in towns like Darwin and Alice Springs, they’re remote from family, they’re remote from communities, and what we’re seeing is – and we know this, that so many of those young people, the primary desire they have is to go back to family and to establish those connections and relationships. So I think the longer kids are away from home, away from families, I think the more harm we’re actually doing to those young people.

And is there any added significance to that – the out-of-home placements when those children then become detainees?---It’s been quite distressing for me to see the census data that we receive now from Territory Families, and to observe the number of children who are coming into contact with the justice system who are also in the care and protection of the Minister. By way of another general observation, is that I’m deeply concerned that some of the policies and practices that take place, particularly in the residential homes and out-of-care group homes, where children who might commit sort of property offences or president damage, you know, smashing a glass, kicking a hole in the wall, whilst those sorts of things aren’t desirable behaviours, nonetheless these kids are having those behaviours reported to the police, kids are being charged, and then end up in the youth justice system. I think that’s really problematic. I have known of cases where children who have not been in contact with the justice system until such time that they were removed from families and put into care and protection of the department. So I’m not sure that removing children from families is necessarily a good outcome.

COMMISSIONER WHITE: Can I just ask – follow that observation up with this: what sort of training do those who run these resi care places actually have to manage what will necessarily be difficult behaviours in the young child, not least of which they’re being removed from, however poor it might be, their homes? Do you understand that there is – they are professionally trained to manage these situations?---There are different levels of staff within the Department of – the now current Department of Territory Families. Of course, there are professionals with psychology and social work backgrounds, but they tend not to be the people who live or work day-to-day face-to-face with these young children or in those out-of-care homes. Many of those workers are largely unskilled, most of them would not have a certificate III or IV in any kind of formal training. They certainly don’t come with a degree of training and awareness around trauma or, in fact, any real training and awareness around cultural issues. So you know, I don’t think it lends itself to being a productive kind of constructive working relationship. I’ve often heard children complain that they don’t understand the sort of carers in those homes, many of whom come from non-English speaking backgrounds themselves.


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You mean by saying they don’t understand, they actually don’t know what they’re sailing?---Correct.

Basic as that?---Yep.

Thank you.

MR McAVOY: Thank you. At paragraph 31 it appears that you’ve set out, in relatively brief form, the tailored program that Danila Dilba sought to deliver to the young people in Don Dale Youth Detention Centre, taking into account the things that you mentioned earlier. Can you, just in a few words, explain to the Commissioners, in general terms, how you set out to make that program work for those kids?---Well, I think the key critical factor for success in being able to engage and work with those young people is by engaging and employing Aboriginal staff, having an appropriate gender mix and an appropriate mix of staff in terms of age as well. So having two senior youth workers as well as younger more peer sort of page group-type staff, if you like. I think that’s been one of the key things. Employing and engaging those staff to work with those young people in Don Dale, particularly for the children who ..... come from Darwin and Palmerston means that we will quite often know those children and their families and have some type of pre-existing relationship and where that relationship play not exist, at least because of knowledge of the networks through the community, are able to establish that relationship reasonably easily. The more important part of that work is really to let those young people know that our staff are there as a support role, to provide sort of counselling and I suppose supporting them in their time while they’re there at Don Dale. We’ve had occasions where young people have got – have been in there on remand, gone to court with the expectation that they may have been released and, in fact, not had that outcome and have come back into the Don Dale centre clearly quite agitated, angry, and upset. The Don Dale staff have on occasions called on our staff to go and talk with those young people and sort of deescalate those feelings and that anger and ..... so quite a constructive sort of intermediary role between – you know, the Youth Justice Officers employed by Territory Families and ourselves in working together with those young people.

COMMISSIONER WHITE: In paragraph 31, to which Mr McAvoy has just taken you, can you give a time frame about when those programs of activities were commenced?---We went back into Don Dale late in – I think it was around July, early August, trying to - - -

2016?---Yes.

Yes. Thank you?---So trying to get a program of activities was really to provide activities and opportunities for engagement with those children in the after school hours and certainly on weekends.

Thank you.


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MR McAVOY: Following on from the Commissioner’s question, Ms Havnen, was it your understanding that the engagement with Danila Dilba following the Four Corners program in Australia’s Shame in July 2016, as you’ve referred to in paragraph 27 of your statement, is it your view that that was a response to that program and political fallout that followed?---Absolutely. It was a response to the showing of the Four Corners documentary. I think it was done as an endeavour, I suppose, one to provide some level of reassurance both to those young people in detention that there would be somebody independent of the ..... organisation to be in there to provide whatever support was required, but also I think to provide some assurance to family members and community more widely that the things that had happened previously were no longer continuing to happen. So it was a way of trying to allay those possible concerns and fears.

Thank you. And I just want to take you back to a comment you made before the Commissioner’s question about the – the intermediary role that Danila Dilba had been filling in deescalating situations. I take it that the pre-existing relationships between staff and the family and community from which the children came and still exists was critical to being able to engage in that de-escalation intermediary role?---I think that’s right. And I think the fact that it’s an agency that’s independent, we’re not part of government as such. We’re there as a provider. We come with particular mental and social emotional wellbeing expertise, and that as a service provider in the broader Darwin community I think we’re seen as a trusted, respected organisation.

Thank you?---Both by government and other stakeholders as well as by community and people who use our services.

Well, if we can take that one step further, do you have any view as to whether, in fact, a government agency can provide the same sort of service that your organisation currently provides?---Unfortunately, I think it’s really difficult for government agencies and departments to provide that kind of service in a really open and trusting way. It comes down to the relationship and I think it’s very difficult for even professional staff, say – it be psychologists or counsellors or even health staff that might be on-site at Don Dale to build that relationship with those young people because they’re seen, unfortunately, as being part of the system. So it doesn’t, in fact, engender a lot of trust, unfortunately. That’s not to say that trusting relationships and respectful relationships can’t be built, but it takes time to do that.

So you’re not ruling it out altogether, but you’re saying it’s going to be very difficult for government?---Indeed.

Now, at paragraph 32 you’ve set out the weekly schedule for the YSSP program. Why have you included that in the – in your statement? Is it to demonstrate the variety of the course to the Commissioners?---I think it was to provide an example of the kind of work and services and support that can be done potentially with young people whilst they’re in detention, whether they’re in remand – on remand or whether they’re sentenced. But it’s really about trying to demonstrate that sort of broader network and support services that we try to establish for those young people


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so that, on release, there is a sort of a smooth pathway and transition hopefully back into either school, community or into – you know, other forms of employment training or work.

And so - - -?---If you don’t provide that level of support then the chances are these young people go back to doing the very things that they got picked up for in the first place.

And so we see, if we look at the program for Monday, between 12 and 1 there’s reference to outreach client support and follow-up home visits, and throughout the schedule there are numerous time slots set aside for outreach. The outreach is – I take it from your last answer, the outreach is important for the transitional processes; is that - - -?---That’s correct, and I think it’s really important that there’s somebody that can go and engage with the families of these children. While some kids may come from what you might call very difficult family circumstances, and it might be hard to engage with those parents or caregivers, there are other families who are desperately trying to do the right things. They want good outcomes for their kids, but they don’t necessarily always have the skills and the capability to be able to provide the guidance and support for their children in an appropriate way. Quite often we hear parents saying, “Look, you know, we try to discipline our kids, get them off to school but, you know, we’re struggling. These kids, you know, they’re out the front gate and go off and do other things.” So I think finding better ways of engaging with those families and finding other mechanisms to help provide wrap around support services, whether it’s things like Malak Re-Engagement Centre, programs like Stars and Clontarf Foundation, which are very much school based programs. If you can get those young people engaged with those other sort of services I think they probably stand a much better chance of successfully reengaging, particularly back into school or, as I say, into employment or training, and that would be the desired outcome.

COMMISSIONER WHITE: Ms Havnen, does this include programs which help them to be good parents?---We would like to be able to do that. One of the things that I hear quite often from Aboriginal parents is that they feel that they don’t necessarily have the same skills as, say, a mainstream family might have around child rearing practices and discipline, and that primarily comes from the fact that Aboriginal parenting styles are quite different to that of mainstream families. And so there is this expectation, for example, that Aboriginal parents should be – you know, the disciplinarian, you tell your children what to do, whereas Aboriginal styles of parenting is children are given a high level of autonomy from a very early age and in mainstream people will possibly suggest that that is neglect but, in fact, that’s not. You know, it’s a different style of parenting. It came about from a different sort of cultural environment where extended family relationships and kinship responsibilities apply, and so therefore – sort of expecting the biological parents to be the disciplinarian doesn’t always work. I think Aboriginal parents have always also struggled with this balance between where they have tried to reprimand and quite often challenged, particularly teenagers about their behaviour, kids have been


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very good at saying to them, “Well, you can’t hit me, you can’t do this, and if you do we’re going to make a complaint about it.”

We certainly heard those observations in our community meetings but, of course, there is a real disconnect, isn’t there, between the cultural background that gives rise to that way to bring up children, and modern situations in places like Tennant Creek and Katherine and so on. So that seems to – I think to us a terrific challenge to meld the two?---Well, it is, and I think this has been part of the difficulty that things and cultural practices and the way of child rearing that used to happen traditionally probably are no longer safe or appropriate today. So therefore, as a biological parent or an immediate family member needing to take care of children and to nurture them and grow them up in a different way with different rules and boundaries, are things – skills that I think people need to be supported to acquire and understand. And it’s not saying one way of growing up kids is better or worse than another. I think it’s just the challenges and complexities of the time in which we live, but I also feel terribly sorry for those parents who really genuinely struggle and as I say, are trying to do the right thing but feel that they are powerless to do anything.

COMMISSIONER GOODA: Do you think that we have to sort of demystify that – parenting, say, lessons to make it more acceptable? To people generally, not just – but particularly, not just Aboriginal parents, but particularly Aboriginal parents to say some people need some help?---I would absolutely agree with that, and I think that there needs to be much more done, certainly in the early years and – you know, through programs like the Nurse-Family Partnership program which is an outreach, home visiting, program once children are born, can be a really good stepping stone for providing parents with that sort of skills and skill development. And I think anybody as a parent, even today, you know, with teenagers would say it’s a tough gig. I mean, there’s plenty of us as parents, you know, with teenage children where you would go, like, “Mate, I’d like to lock you away for the next 10 years until you grow a brain.” You know, we can’t do that. So it’s – you know, raising children is a really complex and difficult task, and I think Aboriginal parents need to be better supported to do that, and to do it well, but to do it in a way that works for them culturally as well.

Yes. And we’ve been told plenty of times in our consultations with communities, sort of, “The rot set in when we weren’t allowed to hit our kids anymore.” We did tell them it’s probably one of the recommendations we won’t be making, but that’s an indication of people needing some skill development or some assistance or support in their parenting. Do you reckon?---Exactly. Yes.

Yes?---Look, you know, this is all doable, I think it’s all possible. One of the reasons why I think perhaps some of these challenges have really arisen in the way that they have done around early childhood and parenting and so was the defunding of – under ATSIC, unfortunately, when their budget was cut – you know, many years ago, where a decision was made to cease funding to women’s resource centres, particularly in the remote communities, and I think that’s had – you know, a longstanding legacy and impact in so many ways. Sorry, that’s probably digressing,


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but I think if you’re thinking about causes and why things are the way they are today, I think you have to sort of go back and find out - - -

I actually don’t think it’s digressing because we’ve got – we were told a lot of times people needed support in these things.

MR McAVOY: Thank you.

We’ve also heard some evidence earlier in this inquiry from Dr John Boulton about the deeply cultural way – relationship between parents and children and the autonomy that’s provided to children. I take it from your answers to the questions from the Commissioners that whilst that very cultural understanding of the relationship between parents and children is something that needs to be understood, it’s not something that can’t be overcome and dealt with in the right circumstances, or should it be accommodated?---Look, I think it needs to be accommodated and respected. You know, different cultures have different ways of bringing up children. In different cultures, various people play an active role in the way that child is kind of, you know, in the Aboriginal language, the way that children are grown up.

And if that’s the case, then it’s – it’s making the case, I think, for community support as well as family support?---Absolutely.

So that it’s not just the immediate parents but the extended family?---Indeed. And, in fact, perhaps even more than the extended family. I think if you talk to Aboriginal people, particularly in the remote communities, there’s a great yearning and hankering for wanting to strengthen those kinds of traditional roles and active participation in children’s development and wellbeing. I think we need to be able to build on that. You know, it’s potentially a strength that exists out there that I just don’t think we’ve – well, that governments necessarily have looked at particularly well, or in any kind of innovative way.

Right. I might move on, if the Commissioners didn’t have any further questions on that point. At paragraph 32 you speak about – sorry, 33, you speak about the Deadly Choices Program. So that’s more directed towards life skills and health for young people. How – do you have any – any observation as to how well received or effective that program was, or - - -?---The feedback that we’re getting is that ..... in the Tivendale School out there, the kids that attended these particular modules are actually very actively engaged, have really enjoyed it, have actually asked for further sessions on particular topics, for example, ones around leadership. Kids were very keen to explore more about, you know, cultural language and identity, particularly for those children that grow up in a more urban context. So very, very well received, I think also by the staff in Don Dale and from the teachers in the school. We’d like to be able to deliver more of those modules and I think we could expand them. The other thing that I think I’d like to include in delivery at Don Dale would be a behavioural change program called SNAP, Stop Now and Plan. This is something that’s usually delivered over a 12 or 13 week period, you can deliver it to groups. It’s been highly effective in reducing – sort of offending behaviour, particularly


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amongst young people, and I think that would be a good thing as an initiative to deliver in Don Dale while those young people are there.

Have you had any discussions with government about delivering that program?---We’ve had some very preliminary discussions with the Minister and with the Department about it. So I’m hopeful that we’ll be able to do that.

Thank you. But at paragraphs 34 and 35 of your statement you talk about the implementation of your programs and the difficulties you had when first attending at Don Dale, and how that has improved to some extent since the youth detention has moved to Territory Families. Can you just expand to those observations a little for the Commissioners?---Look, understandably, staff were, I think, extremely concerned to know that we were going to come in there not only to provide support services but also part of our contract was to provide monitoring and observation reports back to the Department of Territory Families. This was at the time when many of those staff and personnel were still under the Department of Corrections, and so they were in a process of transition. So lots of uncertainty, and I think perhaps a degree of suspicion and fear that somehow our role was in there to report and monitor the behaviour of the staff. I mean, I didn’t really see the role that way. However, with the move of staff and personnel across now into Territory Families I think that’s been a positive development, but given that, you know, it’s still a state of flux and I guess with the ongoing scrutiny, I suppose, arising from – you know, the Royal Commission itself, there’s still a level I think of staff fear, perhaps, you know, bit suspicious, why are we really in there, what are we really doing, what are we reporting back? That kind of thing. But we’ve gone to great lengths to try and build those relationships, as I say, with staff out there. But even as recent as yesterday we were trying to get approval to get one of our senior staff out there, and – you know, just haven’t made any headway. So, you know, we just very quietly and gently keep sort of, following it up. You know, we don’t want to create a situation of exacerbating what I think is some tension there, and I’m sure it will be fine over the next few weeks. We’ll work it out. You know, I kind of understand it, I get it, but at times it’s a bit frustrating.

I’m going to come back to the current issues at Don Dale, the Youth Detention Centre, in a moment, but I want to take you back to paragraph 12 of your statement where you talk about the legislative and policy reform?---Sure.

And you make a – an introductory sort of comment at paragraph 12, before going into some detail in paragraph 13, about some models that you’ve looked at, and we can see there at dot point number 4 under paragraph 13 reference to the stop program that you just mentioned; is that correct?---Correct.

The first model you’ve referred to is the Missouri Model under paragraph 13?---Yes.

The – accept that there has been some discussion of that model already in this Commission. Can you briefly describe for the Commission what the attractions of that model is to you from a Northern Territory perspective?---There are a number of


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elements to the Missouri Model which I think make not only a lot of sense, but the fact that it has also been heavily evaluated and shows, I think, quite dramatic improvements. But what attracts me to it is that it’s modelled very much around safety for staff and for people in detention, that it’s a community based model of detention, it’s not what you would describe as sort of high risk and secure, that it has a very active focus and engagement on engaging with community and with families, and that only the most serious offenders are actually held in those kind of facilities. When I’m talking about serious offenders, in the United States as you know – you know, it’s not uncommon unfortunately for young people to come into contact with the justice system as a result of using weapons and so on. So quite serious offences. By contrast, I would say that many of our young people who are ending up in the juvenile justice system are there because of property related offences, so whilst they’re – I wouldn’t be dismissive of them. Yes, you know, they’re serious in one sense when people have their property damaged, I’m not suggesting that that’s okay but really these kids are not in our detention facilities because they’ve – sort of murdered people or held you up with a shotgun or with a knife. By and large, most of the people who are in these detention facilities at the moment are pretty low order offences. So it seems to me that we could come up with a different way of dealing with those young offenders in ways that are much more cost effective and beneficial in terms of long-term outcomes.

And are you aware of the extent to which the Missouri Model has been adopted and its success in various parts of the US?---I’ve been stunned in the research that we’ve done, particularly in the United States. There’s over 300 counties that have really moved away from, you know, the tough on crime model which is the kind of mantra you heard back in the ‘70s. And it stunned me to realise that in some jurisdictions they have not built a new prison in 30 years, so that says something about the fundamental shift. And it bothers me deeply when I hear discussions about governments thinking of building new, extensive detention centres and jails. You have to go, “Seriously, is this the best we can do?” I think these examples like Missouri which as I say – you know, there are cost benefit studies, it’s been examined and evaluated within an inch of its life, it shows far better outcomes in terms of reduced offending, better outcomes for staff and young people in those facilities, it’s like why on earth would we not give serious attention to that?

Similarly, again from the United States, the Sanctuary Model which is at dot point 2?---Yes.

Is one which we’ve heard something about. Are there aspects of that particular model that you think are particularly pertinent to the Northern Territory circumstance?---Again, what’s attracted me about the Sanctuary Model is – it has been armed for 20-odd years, it’s been picked up in more than 30 countries and as recently as last year was so in places like Singapore and Israel. So it would suggest that there’s enough flexibility in that particular model to adapt to different cultural and local contexts. I’m also attracted to the Sanctuary Model because it’s essentially a tool for driving organisational change and embedding that change over a three year period. It’s relatively inexpensive, that is it costs about $100,000 for that three year


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support to embed and drive cultural change, which is around trauma informed care for vulnerable young people. Part of the problem with simply having moved Corrections officers or those personnel, if you like, across to a human services department – and even though I know the agency Territory Families is looking at providing additional training, if you like, to their existing staff, that they’re recruiting in a slightly different way, looking for people with sort of youth type skills or background, I don’t think that itself will go far enough, and it certainly does nothing to actually drive and embed a changed culture across the organisation. If we’re serious about making these changes and making a real difference with a lasting impact, then Sanctuary has got to be looked at quite seriously. In one evaluation of this particular model being implemented in a New York girls institution, two years prior to its introduction there was a 97 per cent turnover in staff. Two years after the implementation of Sanctuary that staff turnover rate dropped to 17 per cent. So if we could achieve those sorts of outcomes, (1), you’re saving a heap of money, (2), it suggests that staff are feeling much better supported in how to do their jobs, much more effective way to work, surely.

Thank you. If you can turn to page 4 of the statement, please, operator, the next dot point on page 4 after discussion about SNAP is in relation to the New Zealand Children, Young Persons, and Their Families Act. Bearing in mind that the Commissioners have had the opportunity to see that system in operation firsthand, can you tell the Commissioners what you found attractive about that model, particularly as to how it might facilitate the sort of paradigm shift I think you’re talking about?---I’ve been sort of looking at what’s happened in New Zealand over a number of years and certainly with the work from Mr Becroft and then more recently with this sort of wholesale change that took place in New Zealand in 1989, but more recently there’s been further work by an expert panel who produced a report in 2015, I think in December of that year, and it was entitled Investing in New Zealand’s Children and Families, and that takes the whole approach in New Zealand much further than work that had been done previously. But what attracts me to it is that it’s very much framed about recognising and valuing and respecting Maori culture, traditions, practices and the role of family and tribe in the rehabilitation and development of children. And if you think about its applicability in a cross-cultural context here in the Northern Territory I think there are many elements of that work that would be absolutely applicable here.

Yes. So having not discussed all of the models you’ve mentioned in your statement, but some of them, in your opinion would it be possible for the Northern Territory Government, with the Aboriginal communities in the Northern Territory perhaps, to adopt one of those models, or really does it need to be a tailored solution, particularly for Northern Territory taking perhaps the best bits of each?---My personal view is I think you actually need to do it all. There is no sort of quick fix. There’s no one silver bullet. I think it’s the combination together, with all of those sorts of examples, that I think will deliver the outcome.

So the legislative reform?---Legislative reform, repeal the two existing Acts, have a single Act, two parts to it, and as I say, given that those two roles now sit within


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Territory Families, that kind of makes sense. I think there’s the possibility of perhaps prescribing the Sanctuary Model for being the overarching framework for the way in which that department would work and operate. There’s a good example of where those sorts of legislative approaches have been adopted elsewhere, not just in New Zealand, but also in Scotland and in a number of other countries, I think possibly in Spain as well, and in the UK. So if you had Sanctuary as the over-arching framework for it and then used perhaps Missouri as the model to deal with the – you know, youth detention approach, I think we’re starting to get somewhere. The SNAP program that I’ve described could readily be used, I suppose, and developed in schools. What we see is that so many children with behavioural problems are either suspended, or expelled from school, or drop out of school because of behavioural problems. So it seems to me that there’s a multitude of settings where SNAP could be used and employed, and I suspect that would make a big difference as well.

And I take it from your comments earlier that you support the introduction of courts that are – embrace Aboriginal culture and provide a place for Aboriginal people to be at the centre of the process?---I think the real important part is here to give a bigger voice and role for families and communities in this process. I think part of the problem with why we see such high rates of reoffending is that the courts are actually operating almost in isolation of family and community. Aboriginal kids are much more likely to be held accountable and be responsive to those people and adults who have some sort of cultural authority and legitimacy. If you don’t have that, then I suspect you will see the ever increasing numbers of kids parading through the courts. It’s very much the model that’s been adopted in New Zealand. I think that could be given some serious consideration. I know in parts of Arnhem Land, for example, where people are really yearning and wanting to have more of a community say in those matters that directly affect them and their families, and I think that would be exactly the same if you went to Tennant Creek and you talk to the – you know, council of elders, whether you go to Alice Springs, you know, wherever you go across the Territory. That’s a pretty common refrain.

Having engaged in the process of thinking about how things could be done, I’m going to ask you now to consider the capacity for the system as it presently exists to make that change. That’s – it’s particularly important, because your organisation has been able to observe how the system presently – the system of youth detention presently functions from the inside, so to speak. Can you make any observations about how ready or capable the current system is to move to those – one of those options?---Look, I’m always an optimist. I think there’s been a lot of time and attention paid to a lot of, you know, these issues and they’re complex and challenging, so I don’t underestimate the complexity and the difficulty of the government to introduce things that seem to be a radical reform agenda, but if there was – first of all, I think, good planning, absolutely done jointly with Aboriginal people and organisations to help, you know, guide and steer some of this. But the real challenge is actually in the implementation, and whilst I think governments are good at developing policies, I’m not sure that they’re terribly good at sort of implementing and driving service and program change in the way that needs to be done and I think that needs to be done in a very sustained supported way. It does


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take investment, but I think you’ve also got to map it out in a way where it’s almost like a project planning, if you like. Which bits do you do first and what are the bits that follow after that? This is going to take time. I think the fortunate thing about it is that I feel, you know, government has an opportunity to do this quite differently, and to produce quite different results in a relatively short space of time. I mean, just that example that I gave about the introduction of Sanctuary and the reduction in staff turnover rates. If you can achieve that in the Department of Territory Families I would say that would be a major achievement, but that in turn would suggest there would also be other flow-on benefits, you know, sort of downstream if you like, that would reduce the number of kids coming into contact with either Child Protection and/or the justice system, and therefore reduce burdens – you know, on the budget. I think there are better ways that we can use scarce and valuable resources. It just needs a genuine political will and commitment to do it. You know, I recognise that some of this change will be difficult for people to accept. I can’t imagine that the – you know, general public would necessarily embrace or be on side with some of these ideas because it seems like we’re being soft on kids, that people want to hang on to that notion of, you know, they’ve got to be punished, they’ve got to learn a lesson. Well, you know, I think we need to have a more sophisticated conversation about some of those things and I think the public can be brought on side. You know, if you can show that you’re making communities safer, and it’s more cost effective then, you know, what have they got to rail against?

Yes. Now, in answer to my question about how you might bring those programs to bear on the Northern Territory, one of the things you said in response was that there’s implementation problems due to sustainability, or lack of sustainability, of the programs. What role do Aboriginal organisations and Aboriginal community have in terms of the sustainability of programs that might achieve those types of overarching policy changes?---I think there’s enormous opportunity for Aboriginal organisations and even regional organisations to claim this space. It’s a question of doing some mapping. I mean, if you look at the way in which the Aboriginal community controlled health sector has sort of evolved over the last 20 years, we’ve got quite sophisticated organisations providing very complex services in geographically remote and isolated communities. I think that’s a really good model for governments to have a look at. I’m not suggesting that you need to set up, say, a juvenile justice model that way or even a child protection model that way, but I do think that you can have a look at mapping out those organisations and service providers that currently exist on the ground and where they don’t, then looking for alternative arrangements, where you either build that sort of new organisation or service provider or you build on the existing capability. In some cases, it might be regional councils, you know, the shire councils. Shire councils, for a long time, have been responsible for providing things like, you know, youth activities and youth programs. It seems to me, you know, you can build on that strength and that. So there are existing mechanisms there to build on.

Thank you. I might take you at that point to paragraph 38 of your statement. Have you had a look at 38?---Yes.


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It goes just over the page to the second dot point as well. That observation by the Don Dale Danila Dilba Health Service workers about the lack of perception by Don Dale staff doesn’t augur well for the type of change you’ve been discussing?---Mmm.

You’ve talked about the need for training, but that – that point – is it fair to say that that observation illustrates very strongly the need for a substantial cultural change?---It’s been a little disappointing, from a personal perspective, to see that so much of the routine and standard day-to-day practices out there at Don Dale continue to happen today. So there are some things, for example, I would suggest that could be changed immediately that might help change the culture and the environment both for the staff working there but also for the youth in detention. So, for example, I don’t understand why it’s necessary to have the sort of different coloured T-shirts to indicate the security classifications of young people in detention who have not even been convicted of an offence. That, to me, is highly problematic. The other thing is that for – first time offenders coming into Don Dale are generally held in isolation, you know, high security unit, whatever, until they have a so-called risk assessment done. Now, at one point it was taking anywhere up to a week for those risk assessments to be undertaken. I’m not sure what the timeframe is at this point. It may be, you know, a day, it may be less than that. I’m not entirely sure. But nonetheless to put young children into isolation so you can do a risk assessment is just ludicrous. The use of handcuffs on kids when they’re being transferred from Alice Springs to Darwin – again, young children, not convicted, but yet they’re transported out in public handcuffed. I mean, I don’t know about you, but I think that’s pretty damn draconian and as I say, even if those kids were to abscond, really, when you think about a risk to community it’s pretty low grade. And you’ll generally know where those kids go to anyway if they do run off. They’ll be going back to family, so they won’t be hard to find.

Do you have any view about the need for and/or effect on children, particularly the type of children that you expect to find in Don Dale Youth Detention Centre, of the strip searching processes that happen?---To be really honest with you, when I watched the Four Corners documentary I think that was the thing that probably disgusted and upset me the most. If there was an act designed to clearly humiliate a child, to forcibly remove their clothing on the pretext that this was, you know, preventing them from self-harming is just obscene. It’s completely barbaric, it’s outdated, and it has to cause, you know, a trauma to that child. If you seriously believe a child is at risk of self-harm, for goodness sake, go and find the appropriate medical care and treatment for that child. The fact that some of these practices continue to happen, or that they’re still prescribed under law, so it might make them legal, but I don’t think it makes them right. The same thing about the use of restraints and the use of these, you know, isolation units. The fact that the law says these can be done and this is a lawful act doesn’t make it right, and I would suggest that all of the evidence that’s been given by plenty of other health experts about the damage that this causes to kids that have already been pretty heavily traumatised, just beggars belief. It is deeply disturbing and I think – you know, if we’re going to make some serious changes about the way in which we treat these people and the


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culture in this – in that organisation, be it Don Dale or Alice Springs, then I think you have to change first of all the staff that are there. Having Corrections staff simply now becoming Territory Families staff doesn’t change the mindset or their capabilities but, more importantly, I think we need much better capably skilled qualified and trained staff in there. If you have a look at New Zealand in these detention facilities they’re certainly not recruiting – you know, certificate level III and IV staff, they’re recruiting social workers, psychologists, educationalists. You know, we’re talking about a relatively small number of children at any one time. This is not a big impost.

The type of treatment that you just discussed, particularly in relation to the strip searches and the effect that might have upon young people, is that in any way, in your view, connected to the recidivism rates that you talk about at paragraph 41, or is it just part of the equation?---I think it’s probably part of the equation, but seriously if you don’t treat people with respect, I mean, I don’t know how you expect to get a decent outcome of the people to change their behaviour or attitude. And is that really part of the punishment? You know, it just staggers me.

Yes, and so?---If parents were treating their kids like this at home they’d actually be brought up before the courts for maltreatment of children.

Yes. So that the type of figures that you’re talking about in paragraph 41, the high recidivism rates and the conclusion that it’s evident that current practices are failing to deter youth from reoffending or to provide them with successful reintegration into the community. Those rates and those results are not present in systems such as the Missouri model?---That’s correct. So in those jurisdictions where they’ve either adopted Sanctuary and/or Missouri model and, in fact, Missouri is based largely around the Sanctuary Model but where they’ve also introduced this sort of SNAP – this behavioural change program there’s been significant reductions in reoffending.

And given that Danila Dilba isn’t just a health service providing services to the children in detention, but the whole of the community, do you have any view as to whether the way in which children, young people are being dealt with in detention has an effect on the overall wellbeing of the community, or does it have – does it reach out back into the community?---Look, I think it does. Dealing with the parents and families quite often with these young kids, bouncing in and out of Don Dale, you know, there’s a level of distress about what’s happening to them. I think people feel sometimes alienated from the legal system, not understanding how to more effectively participate, not understanding or being aware of what kind of support services may be available to them. You know, it’s a sort vicious cycle. I’ve had people describe the child protection and juvenile justice system as a fish trap. Once you get in it, you know, you’re cycling around in it. Even as an adult you never manage to get out. I mean, it’s a pretty bleak picture.

COMMISSIONER WHITE: Can I just be a bit practical here. In paragraph 40, you suggest that on occasions when young people expect to be bailed when they go to court from being on remand in Don Dale, they’ve been sentenced. I wonder if that is


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intended to mean have simply been further remanded in custody? It just seems a bit extraordinary that you would actually have your matter dealt with finally and go to sentence if you think that you’re just making a – having a further mention in court?---It could be that the situation I suppose that I was thinking of on that one, the young person went to court, wasn’t given bail, was sent back into court then held over for a matter and then was finally sentenced ..... and he had expected that he may get some other sort of order from the court, but that didn’t transpire.

Alright. But for the most part I think the experiences that we’ve heard about are simply either their lawyers have told them or in some way they’ve had an expectation that they will be bailed and that doesn’t happen. That’s more frequent than being - - -?---That’s more frequently the case, yes.

Yes. I thought it probably would be.


And perhaps continuing on in the practical vein, I just wanted to ask you some questions about the medical treatment available to detainees. What is your view as to the health checks that ought to be conducted on a young person when they enter detention?

MS BROWNHILL: I object. This witness isn’t qualified as a – sorry, I withdraw that. I withdraw it. Excuse me.

COMMISSIONER WHITE: Yes, there’s a lot of experience here.

MS BROWNHILL: I’m sorry.

THE WITNESS: I think it would be helpful if there was better information available about the health status of those particular young people. I’ve known of a number of young people that I would describe as having fairly vulnerable health situations for various reasons, either particular conditions that they’ve had or that they’ve been in need of particular kind of specialist care and treatment and that those services haven’t readily been provided. Quite often because, you know, staff have either been unaware of those needs or whatever. So again, you know, it’s about having a better system, I suppose, for being aware of particular needs of those children.

MR McAVOY: Do you know what treatment or what checks are currently provided to children on their admission?---It’s a pretty cursory sort of health screening rather than what you would describe as a comprehensive health check. So that is, you know, checking for the obvious, you know, do you have sores, have you got a cough, cold, whatever, and those things are certainly addressed and treated. But in terms of having comprehensive health checks I would strongly recommend that those checks should be conducted, and I think that those health checks should be provided by the provider of choice. That is if the kids are already existing Danila Dilba clients, it


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would make sense to bring them back to our service to have that health check rather than taking them to a bulk billing practice that will have not necessarily have any prior engagement with that young person.

Do you think there should be neurocognitive assessments – neurocognitive assessments of young people?---Look, I suspect those sorts of assessments should probably have been done well before kids end up in juvenile detention, so that if those cognitive and behavioural problems are being identified in the school setting, that that’s the point at which those referrals ought to be made. Certainly, for any of the children that are coming in, that you think may have a history of cognitive and behavioural problems, then it would be prudent, of course, to make sure that those checks and assessments are conducted, but more importantly, not just to have the test done. It’s about what’s the appropriate treatment?

Thank you. I’ve heard some evidence about detainees being required to apply scabies medication cream onto their body upon entry into facilities. Is this – firstly, if I ask you to assume that it’s in circumstances where the detainee does not exhibit any signs of scabies, is there any prophylactic effect of applying the regular scabies cream that you’re aware of?---Not that I’m aware of, but I have to say – just to correct, for the record, I’m not a medical practitioner and I don’t come with any health qualifications as such, but providing sort of generic treatments to anybody just on the off-chance that you may have something, I wouldn’t think is good practice, and I think if people are worried about, you know, scabies then I would suggest that perhaps it comes down more to maintaining adequate hygiene and cleanliness of – you know, bedding and linen and so on. And certainly, if children need to be checked to see if they have scabies, then have that treated of course.

Yes. And have you observed any difference in the treatment provided to detainees on remand as opposed to those that are sentenced?---Look, I’m not able to sort of comment on that. The number of children that are in there that have been sentenced are actually quite low, and I’m not aware of the way in which they have been processed at that point of sentencing.

Okay. Can you comment on any – can you make any observations about the – your understanding of at-risk procedures in Don Dale Youth Detention Centre or is it outside your scope?---I think it’s a whole area of concern. We hear pretty regularly from those young people in Don Dale about kids expressing concern of being upset, distressed, possibly anxious, depressed. Whether or not they’re able to access the appropriate treatment for those – that state of wellbeing I think remains to be seen, but nonetheless there is, as I say, a psychologist on site, but trying to encourage those young people to engage in those services has been difficult. It’s also a question of, you know, what do we mean by at-risk? At risk of self-harm? If kids are expressing that, then they clearly ought to be monitored according to – you know, the health standards and health guidelines. So there are specific guidelines around that and there are particularly tools to help provide some assessment about a person’s state of mental health and wellbeing. So it should be taken up, I guess, and done – you know, in a very proactive way, but conducted by people with the relevant health


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expertise. So, for example, if a child was to make a comment to – you know, a Youth Justice Officer threatening self-harm or suicide, I think you have to take that seriously and the first port of call and response would be to get that child into appropriate medical care and treatment.

And that’s the sort of response you’d expect in a hospital setting?---Yes.

And is there any reason why there should be a different response in a custodial setting to .....?---Absolutely not.

Thank you. They’re the questions I have for this witness in-chief, Commissioner. I understand that there are some applications for cross-examination. I think the first is from Mr O’Connell.

COMMISSIONER WHITE: Mr O’Connell, if you would be kind enough to just let Ms Havnen know for whom you act, Mr O’Connell.

<CROSS-EXAMINATION BY MR O’CONNELL [3.02 pm]

MR O’CONNELL: Certainly, Commissioners.

Ms Havnen, my name is O’Connell. I represent three former detainees who go by the pseudonyms AD, AV and AN. Ms Havnen, would it be correct to say that you are in favour of completely abolishing the present system of detention?---Absolutely.

And if one of the outcomes of this Royal Commission was for the government to build new detention centres, and those new detention centres were considered quality detention, in the sense that they had proper training for staff, employed the right staff, had a good percentage of Aboriginal staff, would you see that as a successful outcome?---Well, I guess it depends who you’re building the detention centre for. Is it to accommodate those young people who have been sentenced, or are we building a detention facility to accommodate ever increasing numbers of young people on remand? If it’s to hold children on remand then I would say it would be an extraordinary waste of money and a completely misguided approach.

And you – the models that you’ve mentioned, the Missouri Model, the Sanctuary Model, the New Zealand model, they’re all, in your view, designed to work together?---Yes.

And if you were to apply them in the Northern Territory context, you would have smaller centres in all of the five major metropolitan areas. Would you also have centres in some of the bigger Aboriginal communities?---I think the underlying principle, certainly of Missouri and the New Zealand approach to youth justice, is very much about having – if those young people must be detained or sentenced for a period of time, they should be in smaller facilities, closer to family and closer to

.ROYAL COMMISSION 21.3.17 P-1599 O. HAVNEN XXN©Commonwealth of Australia MR O’CONNELL

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community. So yes, it would make much more sense to have smaller facilities located in all of our major urban centres and probably in some of the larger regional remote communities. So, for example, Wadeye, perhaps Nhulunbuy, Maningrida, whatever.

And who would you envisage staffing these particular centres?---Look, I think it would probably be helpful if there was some way of perhaps having greater community involvement and engagement in the staffing and the operation of those centres, and I would think perhaps taking much more of a collective stakeholder approach. That is, they could be jointly co-managed by people like the police, health, education, community people, and doing this together as a real sort of community based model of juvenile – I hate to use the word “detention”, but it really should be about, you know, rehabilitation, and therapeutic care. As I say – you know, I think people have heard already from other witnesses about the high rates of kids with various kind of cognitive behavioural disorders, you know, possibly FASD spectrum disorders and the like. So having a centre or facility somewhere that works really intensively with that young person so that, on release, they’re likely to achieve the best possible outcomes in their life, would be the desirable thing.

Are the facilities - - -

COMMISSIONER WHITE: Can I just ask a question.

MR O’CONNELL: Sorry.

COMMISSIONER WHITE: It fits in nearly there anyway. Nearly all of the young people that we have heard from, who have entered the detention system, commenced taking increasingly large numbers of more and more serious drugs at a very early age, plus alcohol, and that seems to me to be the major factor, on top of all of those cognitive deficits to which you’ve made reference. Isn’t that something that really has to be tackled?---Absolutely agree with you and I think there’s a good example of how that’s been tackled very successful in Iceland. If you leave aside sort of climatic contrasts, but Iceland, you know, small geographically isolated, you know, very similar to the Northern Territory perhaps but amazing work done in reducing – substantially reducing substance abuse by young people, and guess what? It didn’t require police. But what they invested in was a whole lot of youth services and youth programs that were made free and readily available to young people. So even now, if you were to go to Iceland during summer, you don’t see the kids – you know, drinking and boozing and carrying on, they’re actually engaged in really productive activities. So whether it’s – you know, arts and crafts – you know, whatever you like, it’s there, it’s actually providing services to young people. It’s the one thing that absolutely is missing in the Northern Territory. You know, if we want to deal with youth offending and youth behaviour then I think we’d better invest in some sort of youth programs. I don’t mean to be – you know, blunt about it, but it just seems to me to be absolutely, bleedingly obvious.


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Thanks?---I just also make the point, like, a lot of Aboriginal kids would normally engage in things like football, but it costs about $150 for a kid to register to go play football for a season, this is say for an under 10, under 12 boys. How many Aboriginal families have 150 bucks that you can fork out to get your kids into football? So a lot of those activities Aboriginal kids have become completely and socially excluded from.

MR O’CONNELL: These – sorry, Commissioner, is that - - -

COMMISSIONER WHITE: Yes, thank you.

MR O’CONNELL: Ms Havnen, these centres based on the Missouri model, if they were to be built in places like Wadeye and Yuendumu, are they anticipated that they are secure facilities?---Not necessarily. I don’t think that would be either, (a), desirable or (b), necessary, and the way that you overcome the problem about, you know, the young people being compliant with the orders to be there is by having Aboriginal people with cultural authority, elders, family members, that absolutely determine, “This is where you need to be and we’ll tell you how long you’re going to be here for, and we’re going to tell you what you’re going to be doing here.”

And do you think that would work?---Absolutely.

And what about – you mentioned the distinction between the young people who are going around committing property offences, and then the more serious types of offending, such as serious assaults, serious sexual assaults. The children who are committing the more serious offences, and who might be considered a danger to the community, do they fit under this Missouri Model as well and, if so, how?---It probably depends on the age of the child, the nature of the offence, but clearly for those people who have committed serious harm to another person you have to assess it on the basis of risk to the rest of community and society, and it may be necessary that you do need some kinds of secure detention facilities, but I would argue that that would probably account for a very small handful of people.

In your experience, in the time that you have had an eye on youth detention, what – roughly how many, or what percentage, of offenders in youth detention have been in that category? I know it’s a difficult question to answer, but - - -?---Look, at a particular point in time I’d probably say less than a handful. And, you know, I’d be honest about it, some of those young people who have committed – have committed serious offences are really deeply worrying about their behaviour, but again, I don’t think that you can simply just incarcerate a young person for those offences and not provide them with the proper kind of rehabilitation and treatment.

Yes. So when – at the beginning when I asked you the question about if one outcome of this Royal Commission was the building of new detention facilities, you would accept a small detention facility to cater just for those sentenced to very serious - - -?---Yes.


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- - - crimes?---Yes.

And then for all the other young people who are charged in relation to lesser crimes be dealt with under the Missouri model on country or in smaller centres in regional - - -?---Yeah, possibly but I’d also say too that there are other alternatives to having people held in detention. I think there are other sort of rehabilitation and diversionary kinds of activities that young people can be directed to which, again, would be much more cost effective and more productive. So I think we need to think carefully about the kinds of offences and young people that might need to be removed, if you like, from community or to be put into some kind of detention facility for a period of time. You want to think pretty carefully about – you know, who those young people would be and what was the nature of their offence.

You mentioned in your evidence the security classifications. One of my clients, AN, spent the majority of her time in detention at a high security rating, wearing a red shirt and she said that that made her feel that she was bad and also it made her feel that she had no incentive to be good, because when she was, she was – her classification was never changed. Do you have any comment in relation to that?---I think those coloured T-shirts, as I say – you know, are completely inappropriate. There are other ways of – sort of managing behaviour issues, I suppose, within those facilities. And it certainly doesn’t involve locking kids in isolation, or in – you know, some other are form of punitive approach. I would prefer that you treated young people as though they were capable of reform and change and of positive outcomes, and that’s really what we ought to be working towards.

In Alice Springs we heard some evidence from some teachers that they had never used – utilised interpreters in the classroom, and I think one of the comments was that they never had a situation where they felt that the kids didn’t understand what was being said. Does that accord with your experience in relation - - -?---It’s a highly problematic observation given that, particularly for these kids from remote communities, who don’t speak English as a first language. Most of them are illiterate, and the fact that you may be communicating with somebody that provides you with a yes or no answer doesn’t mean that they automatically understand things that are being said to them. I think language speakers, interpreters and so on, are absolutely necessary. I mean, we use language speakers and interpreters in our service, and that’s an urban-based service.

You mentioned the – actually, sorry, that’s already been covered. You did touch on this, but I will mention it again in relation to the experience of one of my clients - - -

COMMISSIONER WHITE: You’re keeping an eye on the time, I assume, Mr O’Connell.

MR O’CONNELL: Yes, this will be my last - - -



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MR O’CONNELL: My last.

One of my clients was a 15-year-old girl who had an incident where her clothing was forcibly removed by six guards, including four male guards. Are you able to comment on the likely trauma that that child would have experienced in that situation?---Well, not as a medical practitioner but only as a – you know, just a general person off the street, you would have to say that experience would have to be horrific and in my view, I’d argue that it constitutes assault.

COMMISSIONER WHITE: Probably not a question that’s usefully asked, if you’re going to follow it up, Mr O’Connell. We can all reach that conclusion.

MR O’CONNELL: Yes.

And finally, Ms Havnen, what is your understanding of justice reinvestment?---Well, it would be diverting what I would call negative expenditure, that is money that’s spent on a system that clearly isn’t producing the outcomes and results that you want, so diverting that money into other activities that actually are more cost effective and produce better outcomes.

Is there any evidence that youth detention has positive outcomes?---In our current system here, I would argue clearly not.

Yes. Nothing further.

COMMISSIONER WHITE: Yes, thanks, Mr O’Connell.

MR McAVOY: Thank you Commissioner. Ms Goodhand has three questions, and I understand she’s seeking leave to cross-examine this witness. I don’t object to the questions Ms Goodhand wishes to ask. She tells me she’ll be very quick.

<CROSS-EXAMINATION BY MS GOODHAND [3.15 pm]

MS GOODHAND: To your knowledge – you’ve given some evidence earlier about Deadly Choices program.

COMMISSIONER WHITE: Perhaps you can just indicate to Ms Havnen for whom you act, Ms Goodhand.

MS GOODHAND: Sorry.

My client is Dylan Voller. So you’ve given some evidence today in relation to the Deadly Choices program. Prior to June 2016, to your knowledge, are you aware of any custodial based therapeutic offender programs in the youth detention centres in the Northern Territory?---No, not aware, but I would also point out that Danila Dilba

.ROYAL COMMISSION 21.3.17 P-1603 O. HAVNEN XXN©Commonwealth of Australia MS GOODHAND

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did provide services in Don Dale from about 2007 to about 2013/14. So even in that period of time, when we were providing some workers out there, it was more sort of activities, but in terms of therapeutic services to young people in detention, whilst those services may notionally be available, it’s a question as to whether or not young people choose to engage and use them, and as I noted before, there’s not a high uptake of those available services because of the poor relationship and the lack of trust.

Thank you. And, in relation to youth detainees who are about to be re-released into the community on parole, is your organisation routinely involved with the preparation phase and the reintegration phase?---As much as possible, yes, and we think that that’s a really important part of the process because it’s one thing to work with these young people while they’re in detention, much more important to continue that relationship and that work once they’re released in order to try and help them avoid coming back into contact with the system.

And do you have a view, based on your expertise, as to whether a therapeutic organisation such as yours should be more involved in that process?---I think a therapeutic approach overall would be far more advantageous to better outcomes for those young people, yes, whether it’s Danila Dilba or someone else.

Thank you. Thank you, Commissioners.

COMMISSIONER WHITE: Thank you, Ms Goodhand.

MR McAVOY: Commissioners, I have no re-examination of the witness. I don’t understand there to be any other applications to cross-examine the witness, and - - -

COMMISSIONER WHITE: Yes. Thanks, Mr McAvoy. Thank you very much, Ms Havnen, for your really wonderful assistance to the Commission. We appreciated your views. You’re released from your summons.

COMMISSIONER GOODA: Thank you.

<THE WITNESS WITHDREW [3.18 pm]

COMMISSIONER WHITE: Mr McAvoy, we have a closed court now?

MR McAVOY: Sorry, Commissioner?

COMMISSIONER WHITE: Closed Commission now?

MR McAVOY: I can deal with this. The difficulty is if we close the Commission now, it will be 15 minutes before we can - - -


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COMMISSIONER WHITE: What are we doing now, then?

MR McAVOY: Well, there’s only one preliminary matter I think that I need to deal with, and that is I will hand up to you now and explain a document which has been provided to my learned friend, the Solicitor for the Northern Territory. The document, Commissioners, is a document - - -

COMMISSIONER WHITE: Have you got two copies of that?

MR McAVOY: Sorry, Commissioner.


MR McAVOY: The document is essentially the matters for cross-examination of vulnerable witness BH, which was served on the Commission by the Solicitor for the Northern Territory with an additional column. So it’s been changed to provide for a column, and you will see on the far right there’s a column SCA Response. And so that’s – the addition is noted in the header, plus responses by SCA, and there’s a date been applied to the document. In the right-hand column there has been an attempt to set out how each of the matters for cross-examination will be dealt with by Counsel Assisting, and there are notes which appear in the footer of the document. You will see footnote 1 is the SFNT note that:

Responsive statements are being sought from named officers and will be provided as soon as possible.

COMMISSIONER WHITE: This is a very recent incident, of course.

MR McAVOY: Yes. Yes, it is.


MR McAVOY: And you will see – there’s just a matter of clarification. The SCA 3, note 3, refers to those additional statements and that at the time of vulnerable witness BH giving evidence there should be a zero added before additional statements to indicate that no statements have been received. So, as far as possible, I understand that with vulnerable witnesses this type of document will attempt to be used in the future to not only communicate to the Solicitor for the Northern Territory the approach that’s proposed to be taken, but also as a record for the Commission. And so I propose - - -

COMMISSIONER WHITE: Do you want that document to become a document, perhaps, for identification, just so that we keep track of it?

MR McAVOY: Well, to date – that’s why it’s been necessary to hand it up, Commissioner, because to date when the Northern Territory tender bundle,


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government tender bundle has been handed up, my learned friend the Solicitor has requested that the - - -

COMMISSIONER WHITE: Document .....

MR McAVOY: This document go with that bundle, and on its own it tells one particular story, but I think with the extra information it tells a more complete picture. And so if it can be marked for identification, but then the document from the solicitor should also be marked for identification rather than being tendered. It seems to me that it’s probably not appropriate for it to be tendered and then made available to the public, and in the past I haven’t objected when that document has been tendered, but certainly the better course is for it to be marked for identification rather than being made available to the public.

COMMISSIONER WHITE: It’s a kind of an aid, really, isn’t it? To better follow what’s going on in terms of the cross-examination.

MR McAVOY: In litigation that’s precisely what it would be, Commissioner, an aid for the court. In an inquiry, well – so I’m content to ask that it be marked for identification, but perhaps my learned friend would like to - - -

MS BROWNHILL: May I be heard in relation to the document.

COMMISSIONER WHITE: Yes, Ms Brownhill.

MS BROWNHILL: As I understand it, this is essentially – well, the right-hand column is essentially a submission about the manner in which Counsel Assisting proposes to undertake the cross-examination of the vulnerable witnesses at the request of the Northern Territory. Now, I don’t necessarily press for its tender which, it seems to follow, has to then be published on the internet. It doesn’t make any difference to us whether it’s an MFI or an exhibit. But the point is that we press for the subject matters that are set out in our document to be addressed by cross-examination, because we are engaging in the process that is established by the Commission’s policy and the Commission’s Practice Guideline 2 in particular, in relation to how it is that the evidence of vulnerable witnesses can be tested with a view to at some point – as we understand it, the Commission will be asked to make findings on the evidence given by the vulnerable witnesses.

So we do not accept that the reasons or the approach identified in the right-hand column justifies a decision to ask questions or not ask questions. I can give an example on the first page. The second item in the right-hand column says that a question will not be asked because certain photos, the provenance of the photos is not disclosed. Now, it’s a simple question to ask the witness whether or not he did the thing that’s disclosed in the photographs. The provenance of them is – can be established through the witness himself. Another example, if it’s necessary, is there’s a disjunct between the evidence given by the vulnerable witness to the effect


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that he was strip searched or threatened with a strip search and the evidence disclosed in the incident report which is that he was the subject of a pat-down search.

Those kind of issues, to the extent that the Commission will be ask to make findings about what actually happened in relation to a particular incident are, in our submission, critical to be part of the testing of the evidence given by the vulnerable witnesses. So we press for the matters to be dealt with by Counsel Assisting and we want it on the record, one way or the other, whether it’s through an exhibit or through a marked for identification document, what it is that we’ve asked for and Counsel Assisting is, of course, entitled to say why they did or did not do certain things or take a certain approach. In relation to that, I understand from the submission that my learned friend handed up yesterday in relation to BN that the decision that has been made by Counsel Assisting about whether to ask questions as identified in this document, and what questions to ask, is founded on a discussion that Counsel Assisting is having with the vulnerable witness before the cross-examination is undertaken.

So I, (a), ask for confirmation that that is the case and then, (b), note that that may also be the subject of a submission about the capacity of the Northern Territory to test the evidence of vulnerable witnesses.

COMMISSIONER WHITE: Thanks. Mr McAvoy, would you respond please.

MR McAVOY: I’ll be as brief as possible, Commissioner.

COMMISSIONER WHITE: You don’t have to be particularly brief. You just need to respond.

MR McAVOY: The first issue, I draw the Commissioner’s attention to the heading of the column. It is clearly SCA response. That’s Senior Counsel Assisting response, it’s not an agreed position, it’s never been put as that, and I never stood up and suggested it was anything more than that.

COMMISSIONER WHITE: No. I don’t think anyone thinks it is. That’s what you’re telling Commissioner Gooda and I, and NTG, that that’s what you proposing.

MR McAVOY: I don’t understand my learned friend to have any problem with the document being tendered for – marked for identification. And - - -

COMMISSIONER WHITE: No. But I think the problem, as I discern Ms Brownhill’s submissions, is that you’re – because the Commission is seeking to protect vulnerable witnesses, to the extent that the Commission is able to do so, on the do no further harm principle, that the usual processes of testing are not being followed. But it’s still behoves Counsel Assisting to put the other version in some appropriate way to that witness. Because, to do so, we will be at risk of not having fair processes.


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MR McAVOY: The – if we might take the solicitor’s example, Commissioner, in relation to the photos which are dealt with in respect of paragraph 13.

COMMISSIONER WHITE: Turn that one up.

MR McAVOY: The photos are said to be in response to paragraph 13 and sought to be tendered on that basis. Counsel – the Commission - - -

COMMISSIONER WHITE: I think there’s no reference to it. Where’s the reference to photographs?

MR McAVOY: In paragraph 13, Commissioner. Sorry, the photos have been sought to be tendered in response to paragraph 13 by the Solicitor for the Northern Territory. The photos are in the Solicitor for the Northern Territory’s responsive tender bundle, and they are objected to by Counsel Assisting on the basis that they are not provenanced. They appear as a tab without any description of what they are, when they were taken, what they – what their purpose is, who took the photos.

COMMISSIONER WHITE: Well, I think I can guess what the purpose is and – because paragraph 13 tells us about writings on walls and they couldn’t get it off and so on. Has there been an opportunity to put the photographs to the young person?

MR McAVOY: Not yet.

COMMISSIONER WHITE: That might be – you know, that could – he could be shown them and asked does he know – does he recognise what’s depicted in them? That’s not unusual.

MR McAVOY: Commissioner, we’re dealing with these photos in a vacuum. We’re told that responsive statements will be provided. One would have thought - - -

COMMISSIONER WHITE: Yes, that does trouble me, I have to say.

MR McAVOY: One would have thought that - - -

MS BROWNHILL: I can clear that up.

MR McAVOY: If I might finish, Commissioner, one would have thought that if a responsive – if the photos were attached to a simple responsive statement from one of the authors of the incident report who said, “I took these photos on this date”, then the matter could be resolved easily. But as it is, I’m having to – I’ve been put in the position where I have to take a vulnerable witness of tender age to a range of propositions that are not clearly made out with photos that are not provenanced.

COMMISSIONER WHITE: How many - - -

MR McAVOY: And - - -


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COMMISSIONER WHITE: How many statements are you awaiting, Mr McAvoy, do you know

MR McAVOY: I wish I knew, Commissioner.

COMMISSIONER WHITE: Well, I don’t see how we can do this.

MS BROWNHILL: Can I just clarify, in relation to the footnote at the bottom of the document for BH, responsive statements are being sought. No responsive statements will be provided in relation to BH. The inclusion of the footnote is part of the template and it was accidentally left in there in the version provided to my learned friend. I apologise for that. We will not be providing any statements in relation to BH.

COMMISSIONER WHITE: So there will be no evidence by those guards who were present emanating from the Northern Territory Government to counter the account that is put by - - -

MS BROWNHILL: That’s correct, Commissioner.

COMMISSIONER WHITE: - - - this person; is that correct?

MS BROWNHILL: (a) Because the documents that the officers involved have produced incident reports and those are part of the object of the tender – the bundle of documents for tender, and (b), for the reasons that we’ve identified in writing on a number of occasions, we have not had sufficient opportunity to obtain or even to seek out those officers, seek their instructions, obtain statements from them, and put them together.

COMMISSIONER WHITE: They’re current officers, aren’t they?

MS BROWNHILL: I don’t know.

COMMISSIONER WHITE: Would you expect they would be? I think these things occurred towards the end of – right at the end of last year.

MS BROWNHILL: Well - - -

COMMISSIONER WHITE: I think December.

MS BROWNHILL: Given the massive amounts of preparatory work that we’re all undertaking it has not been – we have not sought statements in relation to this particular allegation because there are incident reports that deal with and respond to, as we see it, the version of events given by the witness about this incident. A different version is disclosed on the contemporaneous business records of the department. Now, a submission can be made, and I imagine it will be made, that those records are somehow inherently unreliable, and all of them are somehow


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inherently unreliable. Now, we don’t accept that and we will make a submission about that in response, but there are business records available which paint a different picture.

We seek to have the different picture put to the witness so that his evidence can somehow be tested by reference to what is set out in those documents. My learned friend now suggests that the process is not only that we will identify the matters for cross-examination and put those before Counsel Assisting, but that he will somehow decide not to pursue them all on the basis, apparently, (a) of a discussion with the witness, and (b) a view about whether or not those documents are reliable.

COMMISSIONER WHITE: Well, we know the documents, of course, are compiled by individuals, and we have heard a little evidence that makes it a little - - -

MS BROWNHILL: Well, we’ve heard evidence from two witnesses who, it was put to them that they had colluded together to effect a certain record. They disputed that proposition, and that is two out of the very many hundreds of Youth Justice Officers who have prepared reports about incidents that have happened in the centres over the last 10 years. It cannot rationally be suggested that, on the basis of the evidence we’ve heard this week, there is some doubt about the provenance or reliability of the Northern Territory Government’s documentary record keeping system in relation to incident reports, for example.

COMMISSIONER WHITE: That’s not the one I actually had in mind, but nonetheless it’s not appropriate to have argument about it. Just let me hear from Mr McAvoy, in light of your now providing the information that there are no responsive statements at all, because that’s rather a different situation than counsel was labouring under.

MR McAVOY: Commissioner, we’re all aware at the bar table that this inquiry is dealing with unique circumstances where we’re dealing with young people who are presently vulnerable. And we’re attempting to adduce evidence from them in a way that will allow the Commission to address the terms of reference. And it seems to me that it is inherently unfair to test those young people against a document case when the witnesses aren’t being called who can be – against who those documents can be tested. And in the circumstances, Counsel Assisting must make decisions about the appropriate questions to put to the witness bearing in mind the witness’ vulnerabilities, and the way in which those questions must be put, and that’s clear from the standard directions in relation to vulnerable witnesses. That’s the reason Counsel Assisting is asking the questions: to effect that protection.

COMMISSIONER WHITE: Correct.

MR McAVOY: If each individual point of difference between an incident report and a statement provided by a vulnerable witness has to be tested, then we need significantly more time, Commissioner. The way in which – the questions that are being posed by the Solicitor for the Northern Territory and their document, they’re


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not questions that can simply be asked of a vulnerable witness cold. I would object to doing that, Commissioner.

COMMISSIONER WHITE: Well, then we might have to – we might have to stand this witness down because – although I accept that there is – we know that this is a very young person who’s making serious allegations against Youth Justice Officers, who sustained injuries that hospitalised him, nonetheless though the other side, the other version, in justice to him, has to be put to him as well. Now, how that is managed when you’re just given this document so recently, I can’t see how you can do that effectively, and I am surprised that there is to be no statement, I must say, from those Youth Justice Officers involved.

MR McAVOY: Sorry, Commissioner, in answer to the Solicitor’s earlier question, which I haven’t answered yet, I haven’t conferred with this witness since receiving these documents yesterday. Nor had I conferred with the vulnerable witness who was due to give evidence yesterday before he was called to give evidence. However, this vulnerable witness’ counsel is in court. I’m happy to stand down for some – a brief period of time to confer with him about his view as to whether it should proceed. But, in the absence of statements from the witnesses that are said to be relied upon by the Northern Territory Government to form the basis for propositions that need to be put to these vulnerable witnesses, it seems to me the only option – the sensible option would be to allow those matters to be responded to by statement in reply. If it’s going to be a document case, then let’s make it a document case.

COMMISSIONER WHITE: Perhaps we’ll just stand down for a short time.


ADJOURNED [3.40 pm]

CLOSED SESSION ENSUED

[REDACTED INFORMATION]

MATTER ADJOURNED at 5.06 pm UNTIL WEDNESDAY, 22 MARCH 2017


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Index of Witness Events

BENJAMIN KELLEHER, SWORN P-1538EXAMINATION-IN-CHIEF BY MR CALLAGHAN P-1538CROSS-EXAMINATION BY MR LAWRENCE P-1555CROSS-EXAMINATION BY MR CROWLEY P-1567CROSS-EXAMINATION BY MR O’BRIEN-HARTCHER P-1569

THE WITNESS WITHDREW P-1575

OLGA HAVNEN, AFFIRMED P-1578EXAMINATION-IN-CHIEF BY MR McAVOY P-1578CROSS-EXAMINATION BY MR O’CONNELL P-1599CROSS-EXAMINATION BY MS GOODHAND P-1603

THE WITNESS WITHDREW P-1604

Index of Exhibits and MFIs

EXHIBIT #106 STATEMENT OF MR KELLEHER P-1538

EXHIBIT #64.168 FORM REFERRING TO “UNCLE JAMES SIZELAND”

P-1539

EXHIBIT #107 INTERVIEW OF MR KELLEHER P-1554

EXHIBIT #115 STATEMENT OF OLGA HAVNEN DATED 16/2/2017

P-1578


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Transcript 21 March 2017 Web view.ROYAL COMMISSION 21.3.17P-1587O. HAVNEN XN ©Commonwealth of AustraliaMR McAVOY.ROYAL COMMISSION 21.3.17P-1539B. KELLEHER XN ©Commonwealth of AustraliaMR