An Unprecedented Inquiry: The Royal Commission Into the Protection and Detention of Children in the Northern Territory

This article was originally published in the Precedent Magazine of the Australian Lawyers Alliance on December 2024.

With the media reporting a 'crisis' in youth justice in the Northern Territory, another Youth Justice Review announced earlier this year, and a new government planning regressive reform,¹ it is timely to revisit the findings of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory. This article explores what made it a powerful source of truth, and why it is still critically relevant today.

On 25 July 2016, Four Corners aired 'Australia's Shame', in which distressing conditions in the Northern Territory's youth detention centres were exposed to the country. Within days, the Australian Government issued Letters Patent establishing the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory. Delivering its Final Report in November 2017, the Royal Commission made 227 recommendations in the areas of youth detention, child protection, and the overlap between the two, with a focus on issues relevant to First Nations communities.²

The background

The issues in youth justice and child protection in the NT were well known in the lead up to the Royal Commission. By 2015, the rates of detention of children in the NT were the highest in Australia, with the numbers increasing.³

First Nations children comprised 96% of children in detention in 2015–2016, despite making up only 45%
of the NT youth population.⁴ In this time, the number of female detainees also increased significantly.⁵ Many children in detention were also in care, with the Royal Commission citing research that children subject to a child protection order in the NT in 2016 were five times more likely to offend than other children.⁶

The Alice Springs Youth Detention Centre and the Don Dale Detention Centre in Darwin were unsuitable for children, outdated, and ill-equipped to deal with an increasing population. In 2014, children at Don Dale were assaulted, stripped naked, and tear gassed. One of the children involved had been placed in solitary confinement for up to 17 days before the incident occurred (well beyond the legislated maximum period).⁷ In November 2015, journalist Kate Wild reported that Dylan Voller had been hooded and strapped to a chair for two hours in Alice Springs in March that year. NT Corrections refused to provide the footage, despite acknowledging it existed.⁸ That footage was ultimately the centrepiece of the Four Corners episode.

The system was in crisis. The NT Government legalised use of restraint chairs and cable ties. Children in Darwin were moved from Don Dale to the former maximum security adult prison, Berrimah, a facility Jonathon Hunyor, former Principal Legal Officer of the North Australian Aboriginal Justice Agency (NAAJA), recalls was 'completely unsuited' to the therapeutic needs of young people. Children were held in isolation for extended periods in cells with no running water.⁹ There were allegations of abusive treatment by poorly trained staff including assaults, restraints, tear gas, and the use of dogs. Multiple children attempted suicide.

These concerns amounted to allegations of child abuse and contraventions of Australia's international human rights obligations. The NT Children's Commissioner released a report about the cruel, inhuman and degrading conduct children were subjected to in Don Dale in 2015.¹⁰ Community and legal organisations advocated for the issues to be addressed, with lawyers from NAAJA considering the lawfulness of the conditions at Don Dale, writing complaints, and assisting clients with civil law advice. Youth lawyers emphasised the experiences of children in detention during court hearings. Human rights organisations called for international intervention to ensure the NT Government complied with international human rights obligations.¹¹

'Australia's Shame' provoked a strong reaction on a national scale. 'It was a relief that a light would be shone on these conditions ... that these things would be reviewed and hopefully changed', says Crystal Triggs, a youth lawyer at NAAJA at the time.

Establishing the Royal Commission

Then Prime Minister Malcolm Turnbull announced the Royal Commission the morning after the Four Corners episode aired. Mick Gooda, a Gangulu person, and the Honourable Margaret White AO, were ultimately appointed as Commissioners.¹²

The Royal Commission was the first to focus on the interrelated issues of children in detention and child protection in Australia, and one of only a few to focus on a single topic limited to one state or territory. The Letters Patent outlined broad terms of reference, including inquiry into 'failings in the child protection and youth detention systems of the Government of the Northern Territory' in the relevant period, whether more should have been done to protect children in youth detention, and what measures the Government should adopt to do so. While the Letters Patent did not make specific reference to First Nations young people, much of the work of the Royal Commission focused on First Nations communities.

First Nations barristers Tony McAvoy SC and Tim Goodwin were among those appointed, as Senior Counsel Assisting and Counsel Assisting, ensuring lived experience and knowledge were brought to the inquiry. First Nations-led organisations also engaged prominent barristers who played a significant role in hearings.

Commissioner Gooda says Commissioner White was of the view that their role was to 'follow the evidence' and that, in his view, 'you've got to bring your heart as well as your head to these things', particularly when people have been hurt and there is genuine hope for real change.

In his opening, Senior Counsel Assisting Peter Callaghan SC, since appointed a Justice of the Queensland Supreme Court, queried 'whether there is a need to confront some sort of "Inquiry mentality"', in the context of multiple inquiries and reports that had come before the Royal Commission, noting that 'so much said and written over such a long time is suggestive of a persistent failure that should not be allowed to endure.'¹³

An unparalleled approach: Listening to young people

This Royal Commission marked the first time children were at the centre of a formal inquiry. The participation of First Nations children and communities was particularly significant, given the historical context of dispossession and disadvantage. Young people were provided the opportunity to speak about their experiences. Their courage ensured the Royal Commission thoroughly examined the issues relevant to the experience of children in detention and child protection in the NT. The findings of the Royal Commission emphasised that those who told their stories were believed.

Community engagement and witness assistance

The work of community engagement officers, witness assistance programs, and First-Nations-led organisations was integral in identifying and supporting many children and vulnerable witnesses to provide statements and give evidence at hearings, sometimes by way of case studies. Mr Goodwin acknowledges, 'most Royal Commissions considering big societal issues and requiring vulnerable witnesses to give evidence are only as good as their community engagement teams and organisations that are in the field'.

The Royal Commission's community engagement team was led by Director Dr Eddie Cubillo and included First Nations staff Nick Espie, Barbara Shaw, Jenny Bedford and others. Dr Cubillo says:

The Children in Care and Youth Detention Advice Service (CICAYDAS) was established as an independent legal service supporting the Royal Commission, employing lawyers, experts and community engagement officers, including Larrakia man and legal educator James Parfitt-Fejo. CICAYDAS shared information by visiting remote communities, prisons and detention facilities and hosting events, often working closely with the Aboriginal Interpreter Service. CICAYDAS assisted more than 300 people to give evidence.

Commissioner Gooda credits the extensive community engagement with overcoming cynicism when the Royal Commission was announced. He said the Commissioners also worked hard to 'build some credibility in the community by engaging with everyone', including 'Indigenous and non-Indigenous communities, victims of crime, police, advocates, detention centres and prison centres'.

Giving evidence

Many of the children and young people were in custody and/or child protection when they provided witness statements and gave evidence. The opportunity to have a legitimate voice in holding others accountable for what had happened to them in these circumstances was unprecedented. Senior Counsel Assisting Tony McAvoy SC acknowledged it as a 'world first'.¹⁴

The Commission overcame political pressures and obstacles, legislative limitations and procedural fairness challenges to ensure hearings proceeded in a dignified and respectful way. The children and young people were able to be assessed by a multi-disciplinary team before they gave evidence. The form in which they gave evidence and who should be in the room at the time was also considered. The use of pseudonyms provided protection to witnesses, and counselling services were made available. As Commissioner Gooda recalls, 'some of the most poignant evidence we got was from the young people in detention and child protection'.

Findings and recommendations

The Royal Commission made findings and recommendations regarding youth detention, child protection, and the overlap between these two systems. Among a series of findings, the Royal Commission found that the facilities used to detain children were not fit for purpose. Young people in detention were at risk of harm, were often verbally abused, and were subject to inappropriate use of force and isolation. The Royal Commission made dozens of recommendations in this area.

In considering the 'path to detention', the Royal Commission made findings about the broader systems: inadequate services, limited therapeutic options, and failures to provide children in care with culturally appropriate kinship and supports to avoid interaction with the youth justice system. These findings led to a range of recommendations including those targeted at the 'crossover cohort' of children involved in both systems. Other recommendations included raising the age of criminal responsibility, amendments to the Bail Act 1982 (NT), and expansion of diversion programs.¹⁵

Government response

The NT Government's initial response to the Royal Commission's recommendations was largely positive, confirming it supported, or 'supported in principle', all recommendations within the NT Government's jurisdiction.¹⁶ Since 2017, there have been some positive developments in the NT. These include raising the age of criminal responsibility to 12; reallocating the administration of youth detention to the Department of Territory Families, Housing and Communities, rather than correctional services; the presence of First-Nations-led health services in detention facilities; and re-introducing Community Courts which allow Aboriginal Elders
to participate in the sentencing process in certain communities.

However, many of the issues the NT was grappling with before the Royal Commission are still present today. Don Dale is still operational, with a replacement facility scheduled to be opened later this year. In 2018, it was reported that every child detained in the NT was First Nations.¹⁷ The NT Labor Government announced an amendment to bail laws in 2021 that would result in an increase of young people on remand by targeting 'repeat youth offenders by decreasing the circumstances in which repeat offenders can obtain bail'.¹⁸ The amendments had this effect and were widely condemned as contrary to the Royal Commission's recommendations.

The fallout from the events that precipitated the Royal Commission did not end with the delivery of the Final Report. In 2020, in Binsaris v Northern Territory,¹⁹ the High Court of Australia overturned the NT Court of Appeal's ruling that the tear gassing of young people in detention in 2014 was lawful, with Gordon and Edelman JJ noting 'a detention centre is not a prison; detainees in a youth detention centre are not prisoners'.²⁰

The Northern Territory today

Politics against statistics

This article was written during an NT election campaign in which youth justice featured prominently. The media reports focused on the need for greater control of young people because of a reported increase in violent crime. Following unrest in Alice Springs in March 2024, which led to the arrest of several adults, an emergency declaration banned young people from the town centre during a two-week curfew.²¹

In August 2024, the Country Liberal Party (CLP) was elected on the back of the 'crisis' with promises to lower the age of criminal responsibility and further toughen bail laws.²² This signals a backwards step in youth justice in the NT, particularly given the CLP was last in power in the lead up to the Royal Commission. Dr Cubillo observes youth justice 'shouldn't be a political football: it should be bipartisan'.

Misinformation and popular politics have distorted the issue. The 2022–2023 statistics show a decrease
in the number of offenders per 100,000 young people from 2021–2022.²³ Despite this, the NT is still locking
up children at the highest rate in Australia.²⁴ Nationally, the Closing the Gap Annual Data Compilation Report published July 2024 highlighted issues relevant to youth justice and child protection, showing the gap widening in the areas of children in out of home care and no progress in relation to the over-representation of First Nations people in the youth detention system, with the rates increasing for adults.²⁵

Developments in youth justice

The experience of those on the ground is that the NT's youth justice system is still failing children. Information shared by lawyers about the current experiences of children make this clear: a child waiting years for diversion to be finalised; another with no criminal history being remanded in custody for a bail assessment report; children from Central Australia transferred to Darwin, away from family and supports. Jared Sharp, Principal Legal Officer of NAAJA, says the government 'never really embraced what the Royal Commission was calling for' by way of change and that the 2021 bail laws had 'an appalling impact'. From a political perspective, he says, 'you can't be tough enough in this climate'.

This suggests youth justice is heading in a disappointing direction in the NT. However, there have always been exceptionally skilled people working in the area, at every level. These people do important work and deserve support and recognition.

There are examples of positive leadership and developments in youth justice. Shahleena Musk, a Larrakia woman with over two decades' experience in youth justice and human rights, was recently appointed the NT Children's Commissioner. Judge David Woodroffe, a descendent of the Jingili and Mudbura people, was appointed as the first Aboriginal judicial officer in the NT in 2022 and sits in the Youth Court in Alice Springs. Judge Thomasin Opie, of the Local Court, is the Managing Judge of the Youth Justice Court, and brings significant experience in criminal law and child protection.

These contributions should not be ignored. At the same time, the lack of political will to implement wholesale reform is particularly difficult to accept, given the trust extended by young people and vulnerable witnesses in the Royal Commission, many of whom remained caught in the system long after the Royal Commission had packed up and left the NT.

The NT's 2024 Youth Justice Review

In early 2024, the NT's then Labor Government announced a new review into youth justice.²⁶ There is little utility in a further review when the Royal Commission's recommendations are yet to be fully implemented. This decision exemplifies the endless cycle of inquiries where there is little appetite to implement politically unpopular reform. Returning to Senior Counsel Assisting's opening remarks, the legacy of the Royal Commission should not be a world 'in which investigation is allowed as a substitution for action, and reporting is accepted as a replacement for results'.²⁷

The legacy of the Royal Commission

The Royal Commission's Final Report delivered a comprehensive and thoughtful analysis of youth justice and child protection systems in the NT, taking into account sensitive evidence. It is essential reading for trauma-informed and culturally competent practice in the NT. It is also an important resource for criminal defence practitioners, who must be informed about the experiences of their clients, and skilled in relying on the material. The limited scope of this article does not detract from the equally valuable findings and recommendations in relation to child protection, an area which has been less visible.

'The Royal Commission provides a historic record of the treatment of Aboriginal children, the failings of the system, and a path forward to reform those systemic errors', says Judge Woodroffe. At a higher level the recommendations also provide 'a blueprint on how you redesign a youth system that remains relevant today, particularly where there are smaller populations', says Mr Goodwin.

The Royal Commission produced critical findings and recommendations, made possible by the courage of the young people at its centre. As Commissioner Gooda says, 'the Royal Commission was particularly important because it focused on the views of young people, and they were heard, and they were believed'. Despite the passage of time, the work of the Royal Commission and the voices it amplified are still relevant and deserve proper acknowledgement and implementation today.

Footnotes

¹ See eg 'NT plan to lower age of criminal responsibility to 10 could contribute to 'child jail crisis', advocate says', The Guardian (10 September 2024) .
² See Royal Commission into the Protection and Detention of Children in the Northern Territory (Final Report, November 2017) .
³ Australian Institute of Health and Welfare, Youth justice in Australia 2014–15 (Bulletin 133, April 2016) 12; Royal Commission, ibid, volume 2A, 47.
⁴ Australian Institute of Health and Welfare, Northern Territory: Youth justice supervision in 2015–16, 2.
⁵ Department of the Attorney-General and Justice (NT), Northern Territory Correctional Services and Youth Justice: Annual Statistics 2015–2016, 8.
⁶ Royal Commission, above note 2, volume 1, 32.
⁷ See Youth Justice Act 2005 (NT) s153, as in force in 2014.
⁸ K Wild, 'Teen hooded and strapped to chair for two hours while in juvenile custody in Northern Territory', ABC (12 November 2015) .
⁹ United Nations, 'UN rights office shocked by inhumane treatment of children in Australian detention centre', UN News (29 July 2016) .
¹⁰ Office of the Children's Commissioner Northern Territory, Own Initiative Investigation Report: Services Provided by the Department of Correctional Services at the Don Dale Youth Detention Centre (August 2015).
¹¹ See Human Rights Law Centre, 'Northern Territory's youth justice system in crisis' (12 November 2015).
¹² Letters Patent, 1 August 2016.
¹³ Royal Commission, above note 2 (Openings – Senior Counsel Assisting Opening, 11 October 2016), vol 4, 120. The 1987 Royal Commission into Aboriginal Deaths in Custody is a good example.
¹⁴ This comment originally appeared in K Wild, 'Royal commission passes test with Dylan Voller evidence but it still faces uphill battle', ABC News (13 December 2016) .
¹⁵ Royal Commission, above note 2, Findings and Recommendations, 1, 3–9, 20–22, 29–35, 55–56, 46, 43, 41–42; Vol 3B, 16.
¹⁶ Northern Territory Government, Whole-Of-Government Reform Management Office, Response to the 227 Recommendations of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory.
¹⁷ See eg '100% of children detained in NT are Aboriginal', NITV (26 June 2018) .
¹⁸ Youth Justice Legislation Amendment Bill 2021 (NT), Explanatory Statement, 1.
¹⁹ [2020] HCA 22.
²⁰ Ibid, [53].
²¹ NT Government, 'Alice Springs emergency declaration' (2024) .
²² Country Liberal Party, The New CLP Team: Our Plan, 10.
²³ Australian Bureau of Statistics, Recorded Crime – Offenders (8 February 2024).
²⁴ Australian Institute of Health and Welfare, Youth justice in Australia 2022–23 (28 March 2024).
²⁵ Australian Government Productivity Commission, Closing the Gap: Annual Data Compilation Report (July 2024), 5.
²⁶ Northern Territory Government, Department of the Chief Minister and Cabinet, Terms of Reference: Youth Justice Review (20 March 2024).
²⁷ Royal Commission, above note 13.

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