July 2019

The Nation Reviewed

Tear gas returns to Don Dale

By Russell Marks
Rolling back the reforms since the youth detention royal commission

In mid January this year, CCTV footage from inside Darwin’s Don Dale Youth Detention Centre was leaked to the ABC. It showed police in full riot gear aiming assault rifles at unarmed teenagers during what police and the government called an eight-hour “siege” of the centre in November. It also showed the boys arming themselves with makeshift weapons before police tear-gassed them.

The last time children were seen tear-gassed on national TV was in July 2016, on ABC’s Four Corners. Within 10 hours, a horrified prime minister Malcolm Turnbull appointed a royal commission, which made this unequivocal recommendation among 226 others: “The use of CS [tear] gas in youth detention centres should be prohibited.”

In response to the leaked January video, there was no political outrage, no prime ministerial proclamation and no major public inquiry. Chief Minister of the Northern Territory Michael Gunner simply said the police had his support. What had changed?

In August 2016, two months after the Four Corners report, Gunner’s Labor Party won government. Dale Wakefield, a social worker who had run the Alice Springs Women’s Shelter for eight years, was appointed youth justice minister and immediately set about reforming the system in line with the royal commission’s recommendations. She banned the notorious “spit hoods” and “mechanical restraint” chairs, also seen on Four Corners. She established advisory forums through which the government would consult with organisations like the North Australian Aboriginal Justice Agency (NAAJA), the only Aboriginal-run criminal defence agency in the Northern Territory.
Shockingly, every single child in detention in the Northern Territory is Aboriginal.

Wakefield made the use of force against teenagers in Don Dale an absolute last resort, and prohibited the use of solitary confinement – itself implicated in every recent detention centre “riot” around the country – as a means to maintain order.

But by the time of last November’s disturbance, Wakefield and Gunner were under significant pressure on youth justice. That pressure wasn’t coming from civil society reformers who supported the commission’s recommendations. Their occasional media releases and opinion pieces would disappear beneath a deluge of angry messages, like this one published by NT News in August last year: “if they pass euthanasia, let it start at the Don Dale Correctional Centre”.

Much of the pressure on Wakefield and Gunner was coming from staff at the Don Dale and Alice Springs detention centres, who were telling their Community and Public Sector Union, and managers at the Territory Families department now running the centres, that their workplace was inherently unsafe. They blamed the government’s commission-inspired reforms, which banned many of the “behaviour management” techniques staff had used before. The Murdoch-owned NT News mostly urged tougher penalties and harsher conditions, despite evidence demonstrating how counter-­effective such responses are. Public opinion in the Northern Territory was turning towards the view held by the Country Liberal Party’s sacked former corrections minister, John Elferink: that the Four Corners report was a beat-up, and Turnbull had overreacted.

When the new footage of tear-gassing emerged in January, the government didn’t just condone the police response. In March, Wakefield rushed new laws through the single house of Northern Territory’s parliament that undid many of the changes she’d legislated 10 months earlier. Staff using force against children no longer had to show it was objectively necessary. Restraints and solitary confinement could again be used simply to maintain order – and staff began doing so immediately. There was no longer any requirement that force be used as a last resort. Moreover, the changes were retrospective. The emblematic spit hoods and restraint chairs weren’t there anymore, but inside the detention centres it was difficult to see how the royal commission had made any real difference.

Wakefield says the Gunner government remains committed to the royal commission’s blueprint. Another reform bill, introduced at the same time Wakefield was undoing the earlier changes, is aimed at improving the way police arrest and interview children. It will also ban the naming and shaming of young offenders by preventing news outlets from reporting their identities. However, most reformers say this provision goes too far, because it would also prevent the reporting of government abuses.

The 2016 royal commission had also recommended that the age at which a child can be held criminally responsible for their actions be raised from 10 to 12, in line with a global, evidence-based reform movement. This amendment was conspicuously absent from the second bill, even though legal services had been told it would be included, and departmental officials confirmed it was in early drafts. “We don’t think we’re ready”, Territory Families’ chief executive Ken Davies told a parliamentary committee in May. He explained the need to have programs in place and an evidence base to show they’re working. On the other hand, the evidence showing that charging 10-year-olds for “assaulting” their teachers doesn’t work has been in for years.

“We’re starting to get into some complexities,” Wakefield concedes. “As minister, I have to take into account a range of stakeholders. It’s a big challenge. And although you and I and the legal services know the evidence base is very clear, the public doesn’t necessarily support what the evidence is clear about.”

It’s difficult to comprehend that the government would not have anticipated a reaction when it began reforming. But one of Wakefield’s first reforms in 2016 – the administrative removal of youth justice from Corrections (which manages adult prisons) and into Territory Families (which does child protection) – happened despite a bewildering absence of planning. New departmental staff told lawyers during briefings that they were “still building the plane while learning to fly it”. Former Law Society Northern Territory president Jeff Collins, elected as a member of Gunner’s government in 2016, says “I think they’ve got good intentions, but they won’t really listen to anyone outside their inner sanctum.”

Functioning alternatives to the detention centres already exist. Mount Theo Outstation, for instance, is an unfenced, culturally informed rehabilitation facility for young Warlpiri people north of Yuendumu. Its chief executive, Matt Davidson, reports that they don’t get any of the violent behaviours that occur regularly in Don Dale.

But justice reform is hard. The Northern Territory’s budget is spiralling into deficit; sources say Gunner was banking on a federal Labor win so that he could go cap in hand to Canberra. Against the storm of reaction from frontline staff, their unions and the tabloid media, there’s no youth justice champion inside cabinet. Worryingly for reformers, Gunner’s team kicked Collins – its only lawyer – out of caucus just before Christmas. Collins says the chief minister told him before the election that he’d likely be made attorney-general (Gunner denies this). Instead, the role of the NT’s senior legal officer went to Natasha Fyles, a former PE teacher and swimming coach. “There’s a fundamental lack of experience in cabinet,” Collins says. “They’re beholden to the public service up here, and there are a lot of ‘yes men’ among the advisers.”

Many suspect the retrospective March amendments – falsely described by Wakefield as mere clarifications – were designed to protect staff and Territory Families from pending lawsuits brought by detained children. Maurice Blackburn lawyers confirmed at least 10 of its clients’ challenges against staff members’ excessive force would be affected by the new laws.

For its part, NAAJA has been surprisingly quiet. Only once – in the wake of the retrospective March amendments – has it issued a media statement critical of the Gunner government. One of NAAJA’s former principal lawyers, John Lawrence SC, accuses the organisation of complicity. “By not being critical of it [the government’s mistreatment of young Aboriginal people], they are condoning it,” he says.

Robyn Lambley, the only independent member of parliament’s Social Policy Scrutiny Committee, was disconcerted when the committee was “advised” by Territory Families in May that the department was “currently considering amending” a government bill in ways that appear to nudge it further from the royal commission’s recommendations. Ken Davies referred to the bill before parliament as a “draft”. These may have simply been poor choices of words, but they gave weight to a suspicion the departmental tail is wagging the ministerial dog. Lambley wanted to know why public servants were presenting the amendments instead of the minister. The departmental witnesses shifted uncomfortably in their seats. The committee’s chair, Labor’s Ngaree Ah Kit, repeatedly changed topics and tried to wrap up

Does Territory Families write its own legislation? “That is the usual process,” Wakefield tells me. How, then, does she ensure the department that employs staff inside Don Dale isn’t simply writing law that benefits it? “Because I have had 15 years in the service sector in the NT.”

In different ways Wakefield and senior bureaucrats are improving the Northern Territory’s youth justice system. But multiple sources say Wakefield’s passion for survivors of domestic violence doesn’t extend to criminalised teenagers. Nearly 18 months after the commission’s deadline, there’s still no plan to close Don Dale. In May, Wakefield confirmed that its Alice Springs equivalent will now stay open. And broken kids are still being tear-gassed. When I ask the minister why that is, she explains that Territory Families staff absolutely cannot use tear gas. “But if police make the call that they need to use it,” she says, knowing that it was police who used gas in the 2016 Four Corners footage that started it all, “they can use it.”

The author has previously worked at NAAJA as a criminal defence lawyer. Any views expressed in this article are the author’s, except where otherwise cited.

Russell Marks

Russell Marks is a criminal defence lawyer and an adjunct research fellow at La Trobe University, where he completed a PhD in Australian political history. His most recent book is Black Lives, White Law: Locked Up and Locked Out in Australia. He lives on Kaurna land.

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