Transcript 30 March 2017 Web view.ROYAL COMMISSION 30.3.17P-2306 ©Commonwealth of...

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TRANSCRIPT OF PROCEEDINGS

O/N H-762188

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

9.49 AM, THURSDAY, 30 MARCH 2017

Continued from 29.3.17

DAY 25

MR P.J. CALLAGHAN SC appears with MR P. MORRISSEY SC, 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 G. O’MAHONEY and MR C. JACOBI for the Northern Territory of AustraliaMR P. O’BRIEN appears with MS C. GOODHAND for Dylan VollerMR P. BOULTON appears with DR P. DWYER for North Australian Aboriginal Justice AgencyMS F. GRAHAM appears for the Central Australian Aboriginal Legal Aid ServiceMS T. LEE appears for AA, AB and ACMR J. TIPPETT QC appears for Ken MiddlebrookMS P. MORREAU appears for the mother of AJMR S. O’CONNELL appears for ANMR G. O’BRIEN-HARTCHER appears for AX and BX

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MS BALLARD appears for Harold Morgan


COMMISSIONER WHITE: Good morning, Mr Lawrence.

MR LAWRENCE: Good morning Commissioners.

<MICHAEL YAXLEY, ON FORMER OATH [9.49 am]

<CROSS-EXAMINATION BY MR LAWRENCE

MR LAWRENCE: My name’s Lawrence, I represent the juvenile AD?---Yes.

Now, you worked in the Department of Correctional Services for many years. I think from what I can gauge at least 15 years?---Yeah, approximately 14 years.

14 years, thank you. And are you familiar with the conditions in the BMU in August of 2014 when AD was housed there?---No, I’m not.

So you – are you familiar with the physical qualities of the cells which are in the BMU?---In what period?

In 2014?---No, I’m not.

What about 2012?---Yes, I am.

Alright. You’ve been in them?---Yes, I have.

Are you aware that AD was kept in the BMU cell for 17 days in a row?---No, I’m not.

Are you aware that he was kept in there for 23 out of 24 hours of each of those days?---No I’m not.

MR MORRISSEY: Commissioners, I object to this.

MR LAWRENCE: I won’t pursue if he doesn’t know.

COMMISSIONER WHITE: He doesn’t know and he’ll keep on saying it.

MR LAWRENCE: You first started as a casual youth worker?---That’s correct.

Then you became a full-time youth worker, permanent?---That’s correct.

Then you became a senior worker?---That’s correct.

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And you worked in that position for the best part of 10 years?---Yes, that’s correct.

Here in Darwin at Don Dale?---Yes.

And at Wildman River?---In a youth worker capacity, yes.

Right. Now, did you see or hear or have you heard of Mr Johns’ evidence which he gave before the board on Tuesday?---No, I haven’t. I haven’t seen his evidence, no.

You know Mr Johns?---I do know Mr Johns.

Did you work with him?---Yes, I did.

At Don Dale?---Yes.

He gave evidence on Tuesday, and I took to his statement which is paragraph 31 page 6, and please forgive me I don’t know what the exhibit number is for Mr Johns’ statement. Now, paragraph 31 - - -?---Could I just have that back one page because I’ve only - - -

Yes. I’ve got page 6. Maybe we should start at page 5 just for completion. It’s a very short two liner page, if that’s possible. Paragraph 31. And just read paragraph 31. And in particular – I mean you can read the whole lot by all means, but what I’m interested in is point D?---I’ve read it.

You’ve read it. Thanks, now, he talks there about the worst case scenario?---Yes.

Being a death in custody which, of course, is applicable to any Department of Correctional Services?---That’s correct, yes.

And that occurred at Don Dale on 10 February of 2000; didn’t it?---It did.

A 15-year-old Aboriginal boy took his own life by hanging himself in his own room?---That’s correct.

And he was in his own room on a lockdown?---On a room placement.

A room placement, sorry. And that was to cool down because there had been some misbehaviour just before it?---That’s correct.

And in a room placement, officers, at that stage back then were to check him every half an hour to make sure everything was sweet?---That’s correct.

But notwithstanding that, the boy managed to hang himself by using the sheet from his bed, tying it around his neck, tying the other end to the bedhead and then kneeling at the base of the bed, leaning forward, thus asphyxiating, losing consciousness and at continuum he passed away?---That’s correct.


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Now, needless to say there was a hullabaloo, a big deal, there was a huge case, national, international press covered it. The boy was referred to, if you recall, as Johnno?---That’s correct.

There was a big coronial inquest here in Darwin?---There was.

Did you give evidence at that?---No, I didn’t.

Alright. Now following the inquest there were recommendations made by the Coroner in relation to the incident?---There were.

And can we take it there would have been extensive debriefing within the department concerning what had happened to the boy, what could be done to prevent it in the future including the recommendations that flowed from the learned Coroner?---There were, yes.

And you were involved in some of these?---I was – I was involved with the findings as far as what the new at risk procedures would be, or the strengthening of.

MR MORRISSEY: Commissioners, I’ve agreed to support the asking of – the putting of two recommendations from the coronial inquest there and I would ask my friend to move to those.

MR LAWRENCE: I’m just going to do that now.

COMMISSIONER WHITE: Yes, Mr Lawrence.

MR LAWRENCE: Two of the recommendations that were given in the finding of Mr Wallace, which was delivered on 19 December, and the details of that can be given privately, at the final page was number 3, that:

All staff receive formal training in the recognition of risk factors and behaviours of young people which may indicate an increased likelihood of self-harm or suicide, and that such training be regularly reinforced.

You recall that recommendation?---Yes.

The fourth one was that:

All staff receive formal training in order that they with better able to recognise signs in young people of possible mental illness and that such training be regularly reinforced.

You’re aware of that one also?---Yes.

Did that come into operation following that finding?---The first recommendation was followed through and continued on as a very strong focus on at risk procedures in the


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Don Dale centre all the time I worked there. The second one you refer to with the mental health, I would consider as not being as strong and the Department of Health would have had a lot of input into that, I believe.

The Department of Health?---Yes.

It seems clear on most of the evidence that the staff that were working at Don Dale in 2014 were seriously underqualified.

MR MORRISSEY: I object. This witness can’t comment upon 2014 and this is going to that. I don’t mind the question about this period when this witness was there in 2012.

COMMISSIONER WHITE: That would have to be the case, Mr Lawrence.

MR LAWRENCE: Could I put it to him in 2012?

COMMISSIONER WHITE: You can.

MR LAWRENCE: It would – I would suggest to you that in 2012 the level of training and qualifications for the staff that were working in Don Dale wasn’t compliant with these straightforward recommendations made back in 2000?---As I said before, during my time working at the Don Dale centre, the at risk procedures were followed stringently. Consequently, there had been no further deaths in custodies in my time since that date and during my time as a senior youth worker and post that, the at risk procedures and the communication with youth and identification as far as how youth displayed themselves for at risk to notice that risk, was identified in every case as far as I’m aware, I wouldn’t say every, most cases, because it was something from the coronial and that death in custody, a lot of the staff that worked there continued on along as I did for many, many years and we took with us from that incident the seriousness of at risk procedures in the Don Dale centre.

COMMISSIONER WHITE: And what about the second point because I think that was the focus of Mr Lawrence’s questions, not the at risk procedures but the training in identifying the signs of mental illness?---That was – there were some applied suicide intervention programs that were attended by staff. There was first aid – mental health first aid which was provided for staff, but if you want me to make comment on an overall conception of mental health procedures and introduction in Don Dale centre, then there wasn’t a formalised continuous growing program for that.

MR LAWRENCE: Thank you?---As an ongoing program.

MR MORRISSEY: Thanks. Can we just indicate gratitude to Mr Lawrence there. I won’t tender that report at this stage but consideration is actively being given to that or parts of it which may assist the Commission. So although it won’t be tendered right now, it’s a consideration.


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COMMISSIONER WHITE: Yes, thank you.

MR LAWRENCE: Thank you.

COMMISSIONER WHITE: Thanks, Mr Lawrence. Thank you, Ms Lee.

MS LEE: Thank you, Commissioner.

<CROSS-EXAMINATION BY MS LEE [9.59 am]

MS LEE: Sir, I represent AA, AB and AC. Just to - - -

COMMISSIONER WHITE: Just give Mr Yaxley a moment to - - -?---Can you just repeat who it was, sorry.

MS LEE: AA – the first three on the list that I gave you this morning?---Yes. Yes. Thank you.

You’ve just said there wasn’t a continuing ongoing program with respect to mental health services in Don Dale during your tenure as assistant general manager. Is it the case that there was a heavy reliance on bringing private practitioners in to provide assessments?---There was some reliance on that from private practitioners.

And the reason for that is because that in-house expertise just didn’t exist?---There was – that we had in-house expertise from our - - -

COMMISSIONER WHITE: I might be a bit interested in hearing how the bringing in of private practitioners actually worked during your time, if I can intervene into your time, Ms Lee, to ask that question?---That would come about by – through the case management unit and there would be reference made to the treatment services that was ..... under the correctional services, through the adult custodial that – and also the youth justice had some influence and input from case management through to the treatment services of adult custodial.

So you tapped in at Don Dale into the contractual arrangements that the adult correctional centre had with an outside provider?---They had in-house - - -

So you could use them, could you?---Yes.

What about psychiatrists?---Psychiatrists were externally provided.

They were externally provided?---Yes.

But were there a certain set of psychiatrists or perhaps only one or two that the adult correctional centre was contracted to use?---I’m not aware if there was a contractual

.ROYAL COMMISSION 30.3.17 P-2261 M. YAXLEY XXN©Commonwealth of Australia MS LEE

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arrangement. The one – the ones that I was aware of, I wasn’t aware how they – how they became to be seen by the youth but they were independent private external.

And could the case workers then, would they have to go through centre management to actually call for the assistance - - -?---Yes.

- - - of the practitioners?---That would come through head office where the – the director of treatment services was located and through her office. Then the provider would be sourced.

That might be alright during what we regard as working – normal working hours, although I suspect not too many people keep them, but what about after hours, at weekends, how did it work then?---There was – there was limited mental health after hours to Don Dale centre.

Yes. A lot of these things arise as an emergency, of course, don’t they?---A specific case that’s been deemed as someone who has some mental conditions that will need to – need to be addressed. That was the source of case management at Don Dale centre. And from that the referrals up to treatment and from there the referrals would go out to an independent person, but after hours, no.

Could the young person be taken to the secure mental health facility - - -?---There was.

- - - at the Darwin Hospital?---Yes, I do recall times when we had escorts and permanent rotating officers supervising detainees at the Joan Ridley Centre. That did happen on a number of occasions during my tenure.

Thanks, Mr Yaxley, I hope the timekeepers have taken that time out.

MS LEE: Thank you very much Commissioner.

Perhaps to add on to that, when young people did experience an emergency with respect to mental health was it within your power to exercise provisions under the mental health and related services Act to require that young person to be immediately assessed by those in charge of the Joan Ridley unit?---It was – it would have been through the case management unit, through me to the directors.

So can I take it that there was a heavy reliance on case managers, on their ability to interact with young people and find out what was going on with them - - -?---During my time - - -

- - - in order to refer them?---During my time, case management it was an intrinsic part of the operations of the Don Dale centre.

During your time it was also a chronically understaffed area?---At times, yes.


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Now just – there is another question I’d like to ask, sorry, I’m moving backwards a little here. With respect to the – sometimes there would be youth, as you’ve indicated to Commissioner White, a psychologist was employed by the Corrections to assess young people?---That’s correct.

Sometimes there would be an approval of expenditure to engage a private practitioner to consult with the young person?---That’s correct.

That was all dependent on budgetary restraints that were decided by head office?---Yes.

Now, there is a general, and if you can’t answer this, please let me know. With respect to finding appropriate practitioners to work with young people in Don Dale, it requires a trauma informed practice and an ability and understanding to communicate across cultures, to have an understanding of ..... would you agree with that?---I can’t make comment on that because it is outside my sphere.

Well, in respect, we’ve heard your background is as a youth worker or a social worker. Did you find that - - -?---I have no social work background.

I apologise. I’m sorry, what did you say your background was then? I may be mixing a witness. Social worker, social worker, sir?---No.

No background as a social worker. Sorry, I withdraw that. Was it your case that case managers who had a good understanding of the culture and background, history of the young people in Don Dale were able to more easily develop a rapport and more easily to – able to speak with him and identify if there were mental health or other underlying issues?---Yes, there were. And some staff had that ability in an unprofessional way to feed information to the case management unit.

And so that staff that would be able to feed that information in, that would include Youth Justice Officers?---Yes.

Again that would require those officers to have an ability to develop a good rapport?---Yes.

A level of emotional maturity and understanding. To be able to perhaps see behind the instant behaviour to what’s actually causing it?---And that’s a marked quality of a good youth worker.

There was - - -?---Could I put trust in there as well?

To establish the trust of the young person?---Absolutely.

Now, because of the increasing use of casual youth justice workers, those qualities became a lot rarer?---I wouldn’t say a lot rarer.


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Well, would you say that they were as present as they would have been had there been a fully trained permanent staff?---No.

With respect to referrals that were made from the case managers to either private health practitioners or practitioners who were employed at Corrections, there was no implemented policy to ensure continuity of treatment for young people with those persons; is that right?---There was a case management, like, procedure manual or – yeah, I guess you would call it a procedure manual. I’m not able to make definition on that – that statement you made.

Once they left the front door though, that case management procedure manual didn’t operate any longer for that young person?---Unless they were on a community supervision order and would be picked up by the probation parole officer and there would be some consultation made with them.

So that would be dependent on if they received a sentence from the correct that required it?---Yes.

Ordinarily speaking then, apart from that situation, once they were out of the front doors of Don Dale that was the end of responsibility in terms of case management and continued support and assistance for that young person?---That’s correct.

Now, sir, you’ve said that there were some difficulties with shortages of case managers?---At times, yes.

And earlier in your evidence you also said that there – during the period of your tenure who were more kids in the BMU spending longer periods in the BMU?---Yes. That’s fair.

You’d agree with me that the importance of a case manager, the importance of having an up to date, and appropriate intensive management plan is higher for a young person who is spending an extended period in the BMU?---How do you mean higher?

It’s more important that they have that document quickly?---Yes.

That that document is followed it the letter?---And reviewed.

And reviewed regularly?---And we did that.

Is it the case, however, because of those staff shortages, because of the difficulties we’ve spoken about, the reliance on the casual youth justice workers, the, I suppose, dissolving of that core skill base that the permanent youth justice workers would have, that it was very difficult for case managers to make sure that intensive management plans were up to date?---I think quite the contrary. The focus on the number of intensive management plans that were being provided to youth coming


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from the BMU increased markedly, which took away the time for them to be able to do programs and services within the building.

So your evidence is that instead of letting that area of their practice slide, in fact, they – they engaged in that area and - - -?---There was a need to so it was happening in a timely manner.

To the detriment of the running of programs - - -?---That’s correct.

- - - and general case management - - -?---That’s correct.

- - - of other young people who were not immediately housed in the BMU?---That’s correct. Not to say that there weren’t programs, if you’d like me to elaborate?

Sir, in your opinion a case management plan that was simply cut and pasted from one child to another is not a case management plan?---There were times when they’d done but we had them updated and there was – there were individual management plans made that was separate to, as you say, cut and paste.

So - - -?---I think, initially, that was a case but there was always something, or most of the time there was something in that intensive management plan that was separate to another person. They were actually updated and improved in my – during my tenure as general manager.

So taking from that, if it came to your attention that there was a case management plan that was identical between two or more young people in your mind that would not be an appropriate case management plan?---If it outlined the things that needed to be covered with that person that might be the same as the other person, insofar as their education or their time out in education, their time out for recreation, when they returned to the BMU, often if they were too dissimilar in that regard it was difficult to manage them as far as resources for staffing.

Sir, I’m talking about an identical document for more than three - - -?---Are you referring to a time when I was general manager?

I’m asking for your opinion on – you’ve provided some evidence on intensive management plans?---Yeah.

The definition of an intensive management plan is an individually developed regime. I’m asking for your opinion as to if you were the general manager and you saw three or more general management plans or behavioural management plans, as I believe they’re called from time-to-time, that were identical, would that be sufficient.

MR O’MAHONEY: Can I suggest, Commissioner, out of fairness to the witness, rather than putting that question in the abstract, it be done by reference to an example so he can actually see what’s being talked about rather than answering in the void.


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COMMISSIONER WHITE: That’s a helpful observation, Mr O’Mahoney, but we’ll see if Mr Yaxley can manage. It was a pretty clear question, I think.

MR O’MAHONEY: Yes, Commissioner.

THE WITNESS: If there are three or four identical cut and paste, as you’ve said, and I can recall that being the case at times, it may not be satisfactory in all circumstances but under the circumstances we had there with the staffing arrangements, because we had to manage these – we couldn’t do something out of outside of how we could manage the intensive management plan, and if we needed to have, for instance – let’s just say an example of four individuals as you’ve said or three or four on the same management plan, then their regime as – as far as entering and exiting the BMU throughout the course of a day would be easier to manage if they had the consistent times that they did that in preference to alternative times.

MS LEE: So it may not be best practice but it may be required because of other staffing concerns?---We had to consider that.

Sir, I also wanted to ask you some questions about the provision of education during your tenure as the general manager. There was a policy with respect to education and work programs?---A policy? Have you got reference to that?

DD – I can provide the document number?---Yeah, I’d like to see it, if you wouldn’t mind.

Apologies, Commissioners, I just have the identifying number ..... reference.

COMMISSIONER WHITE: I think that’s all our tech people need.

MS LEE: DDY0001.0008.1684.

Sir, this document was an internal policy updated in August 2012; are you familiar with that document?---Can I have a look at it first, please? Thank you. That – is there more? Yes, I am familiar with it.

And that was - - -?---To the point that – what I’ve read, but I refer to having seen it before, yes.

Sir, that policy applied to all detainees?---All – as far – yes, it would have done.

Sorry, I should say all detainees under 17, which is the legal age - - -?---Yes.

- - - required to go to school. Now, once a young person was in the BMU, they no longer attended the school for regular education?---Until they were on an intensive management plan.


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And the intensive management plan may provide they go to school or it may also provide that they conduct independent study from an education pack?---I’m not 100 per cent, but I do recall having times, it may not have been in the BMU, it might have been the security lounge in the BMU area that there was school work provided to them at times that I’ve got recollection of.

In accordance with the behavioural management plan if there was one?---Yes.

Which would have been done in consultation with the case manager if they had one?---And education.

Thank you?---Education was involved in all of the ......

So in your mind the preparation of that behavioural management plan would have taken into account, from the meeting with the principal, the ability of the young person to read and write and, therefore, engage in self-assisted learning?---It would more be to do with their behaviour whilst they’re in school and whether their behaviour was – there used to be a lot of instances that happened in the school and they may have been, for want of a better word, expelled by the school and – which they were then in the BMU for whatever the incident might have been, and their return to school was dependent on their behaviour.

But I’m asking about the period where they were excluded from the physical classroom. During that period of time, is it your evidence that they would be given education materials for self-study?---Whilst they’re in the BMU? On a BMU placement, you’re saying?

Yes, or otherwise excluded from the classroom and in a regular cell or not the BMU?---Or a room? There were provisions made to their room, yes.

That wouldn’t always occur, though?---No. It wouldn’t always occur, no.

And it was up to the Youth Justice Officers to provide those materials, take those materials away. It wasn’t as if education staff came and sat with the young person, assisted them to work through the pack or anything like that?---No, they may have been given some exercise to do and they could do those exercises and return them to the school.

Thank you. Now, sir, at paragraph 104 of your statement you talk about not being aware of issues with risk.

MR MORRISSEY: I’m sorry, we’re well over the time. Is it a single matter?

MS LEE: It is a single matter to put to him. Perhaps if document – it’s annexure 13 of Mr Yaxley’s statement be put on the screen, please. Sir, I was referring to a paragraph in your statement where you said – I’m sorry, that’s not it – I’ll provide the – WIT01010001.0213. Sir, I was referring to a paragraph in your statement


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where you said you weren’t aware of water not being given to detainees or them being given half glasses?---Half glasses?

Or half a cup of water or a small amount?---I don’t think I said anything about half glasses.

In any event, you were not aware of any incident where water was withheld from young people?---No.

And if you had been aware of that you would have done something about it?---Absolutely.

And to be aware of those types of things young people would have made complaints?---They would.

Now, you issued the directive that is on the screen. I’m particularly interested in paragraph 3:

Under no circumstances are detainees advised that they are unable to receive a complaint form.

?---Yep.

Did you prepare that in response to detainees not being provided complaint forms?---There may have been instances where detainees have come to me and made a complaint and, for whatever reason, that wasn’t followed up by a youth worker, so that would give me reason to put that in there.

Thank you. Thank you Commissioners.

COMMISSIONER WHITE: Can I just ask you this: you talk about the behaviour management plans in paragraph 94 in that section in your statement. Ms Lee was asking you questions about intensive management plans in the BMU, but I take it from what you’ve put in your statement that every young person coming in, and I’m presuming this is on sentence but you can correct me if it also applies to remand, had a management plan prepared for them in conjunction with a case worker?---There was – there was – there were plans that were made within the case management unit that weren’t necessarily a behaviour management plan if they were sentenced. They were done fairly centrally located within the – the case management unit with the case manager, and often the need for me to be knowing what that was, as far as the actual plan, it was more of a personal plan for them, rather than a behaviour management plan.

And any personal plans – perhaps I’m a bit more interested in a personal plan for each detainee – that was your understanding that occurred, so that goals were set?---Yes.


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For those young people?---For sentenced – yes, for sentenced detainees they were. And might I say that the time that I was – through my duration of working in the centre, it was a minimum number of about 65 per cent of our detainees were remandees, as a minimum. And sometimes up as high as 80. So there was a low – lower number of sentenced detainees, and might I say that, in regards to case management, we were unable, when youth were on remand, to do very much with them at all because they weren’t sentenced. This was – this followed with programs. That was set up that my – like, for instance there were anger management programs done and there were drug and alcohol programs done by case management at times, but as far as doing any focussed programs for all detainees in the detention centre, it was more for the sentenced detainees, which are a much more smaller number, due to the fact of the high number of remand detainees. And some of those detainees were there for up to 11 months - - -

On - - -?--- - - - which is a very long time, but that - - -

That’s on remand?---Yes.

Yes?---Which makes it very difficult to apply programs to a big percentage of the population at the Don Dale centre.

Part of the problem, no doubt, was the lack of certainty about how long you would have the remand detainees with you?---That’s correct, and often they would come in on remand and be released and come back again in a period of time and be on remand again and then come back again and maybe some time in the future they’d be sentenced.

Right. Thank you. Thanks, Mr Yaxley. Dr Dwyer.

<CROSS-EXAMINATION BY DR DWYER [10.24 am]

DR DWYER: Mr Yaxley, can I ask you about the – some information you’ve given the Commissioners about the document you prepared, Creative Spirits Youth On Track?---Yes.

COMMISSIONER WHITE: Dr Dwyer appears for NAAJA.

DR DWYER: I’m so sorry, your Honour. I’m so sorry, your Honour.

In relation to that document, which is annexure 9 of your statement, you said yesterday that you commissioned it in around – I withdraw that. You wrote it in around 2013; is that right?---2014.

’14. Thank you. And my question was: who did commission it? Why did you write the document? Did someone ask you to or was that your own initiative?---It was my

.ROYAL COMMISSION 30.3.17 P-2269 M. YAXLEY XXN©Commonwealth of Australia DR DWYER

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– well, I wouldn’t say it was my own – it was my own initiative in writing it, but it came about by – when I was working with – under Salli Cohen, there was a Youth Justice Framework. I was tasked with looking after the community based supervision model which was part of the Youth Justice Framework. I’d done a lot of – quite a bit of work in research and I went to the Tiwi Islands and spent a day out there, took a lot of things in at the time as far as what that was.

So the purpose of your visit to the Tiwi Islands was to talk to elders, community leaders about - - -?---Yes.

- - - about how they might collaborate with you?---Yes.

Is that right?---That’s correct.

And you would have been well received in the Tiwi Islands?---I was very well received.

And, if I might say, with respect, it appears you spent a lot of time on that document; is that right?---Yes.

And where did you – you intended that to form part of the Youth Justice Framework?---I had intentions for that to have some sort of consideration.

And is it your evidence that it got no consideration, effectively.

MR O’MAHONEY: That’s not his evidence at all.

DR DWYER: That’s a question, your Honour, with respect to my learned friend. He can answer the question.

MR O’MAHONEY: Commissioner, my friend was sitting here when he gave his evidence. To put the question, “So your evidence is X when” - - -

DR DWYER: No, the question is, “Is it your evidence” - - -

MR O’MAHONEY: Could I finish? To put the question, “So your evidence is X”, when he gave an answer which was so far removed from X it’s not funny, in my submission, it’s just not fair.

COMMISSIONER WHITE: Yes, Mr O’Mahoney, but I think it was a question that was asked and I think even if Mr Yaxley wants to change his evidence from earlier he can do that.

MR O’MAHONEY: If it please the Commission.

COMMISSIONER WHITE: I think it’s a clear question.


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DR DWYER: Thank you, your Honour.

Is it your evidence that it didn’t get any traction?---That’s correct.

And that would have been very disappointing to you; is that right?---At the time I felt that there was value in what that model or framework had to offer.

And - - -?---But can I also say that I knew that the track and the pathway that was going with the framework was – was not on the same path as this – as this - - -

COMMISSIONER WHITE: It’s a matter for you, Dr Dwyer, but I’d quite like to hear about that diversion.

DR DWYER: Yes.

COMMISSIONER WHITE: Would you like to explore that a little further, Mr Yaxley?---I just – I just felt that this document had some value in being raised at the time through the community based supervision model structure that was there, and it had relevance to being a community based supervision model in itself. And I had thought there was – it had structure for being able to be seen as an opportunity to look at how Corrections see youth in a way that could go past just the Youth Detention Centre and I believe that document has the ability to do that.

And you - - -?---Which is what community based supervision model to me is about.

You added that it was not in step, if I can use that word, with what was being considered, however?---Yes.

Is that the case?---Yes.

Right.

DR DWYER: So what was the contrast, Mr Yaxley with what was being considered, how did that differ from your - - -?---I think it was more limited and restricted in the way that it was structured and that’s my own personal view.

Did you also feel disappointed because you go out to the Tiwi Islands, you engage the elders with a proposition and then you can’t follow-up on the idea you’ve proposed?---No. That was – no. That was – and there was other important factors that came into the development of the Creative Spirits, and that was as equally as important as going to the Tiwis was when I had the opportunity to go to Canada during my long service leave, after I left the Don Dale centre. And whilst I was there I had the opportunity to meet some local Indigenous Canadian Indians and just – can I elaborate on this.

COMMISSIONER WHITE: You can?---Is that okay?


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Yes?---I’d just like to take it back a couple of steps just to put it into perspective. And it refers to a program called Past Present Future that was running in the Don Dale Centre, and when that program was running – and it was run by the DAWS, you know DAWS? Darwin Aboriginal Islander and Torres Strait Women’s Shelter ..... Torres. We formulated this program and through that weekly program that was happening in the Don Dale Centre, they invited me to come and meet this lady called Linda Senekal, and she was the Canadian Indian that I’m talking about. So I got talking to her and she come and presented an afternoon with the detainees, which was part of this cultural program that we’d introduced at the Don Dale Centre. And might I say, my belief is it was the first cultural program that was introduced at the Don Dale Centre. And during that conversation – and then I met her husband, and then I was planning my leave – my long service leave so I went to Canada and they offered me to come and stay with them whilst I was – in a little place called Sault Ste Marie in Canada, and whilst I was there they took me to a detention centre there, and there was only four youth in that detention centre because all the rest were out in the community in a house being managed in a way that I thought was really appropriate for youth. And so from that, they started talking about single positive youth development and I feverishly started researching all this stuff about positive youth development, which is what Creative Spirits is based on. And then when I came back I had that enthusiasm about all this, and then there was this framework for the Youth Justice Framework that was going in this direction and I had all this ideas about how I believed it should be, so Creative Spirits came about.

DR DWYER: And then when you went to the Tiwi islands – and you discussed your ideas, did you, with elders in the Tiwi islands?---Yeah, it was more about listening to what they had to say and - - -

And was there – I beg your pardon, I cut you off?---No. That’s alright.

And was there a real sense of enthusiasm from people in the Tiwi Islands when they were talking to you about alternative models for detention?---There was enthusiasm – enthusiasm about the – more collaboration with Corrections and other NT – Territory Government organisations to work closer with – with the Tiwis.

But that wasn’t something you were able to follow-up on, is that right, because the document didn’t get traction?---After – after I had the meeting with Ms Cohen, I filed that Creative Spirits into the – into the relevant folder in the G drive, whatever drive it was, and it went to bed.

I just wanted to ask you: you’ve told the Commission about the significant research you had been doing then. The research in Canada prompted – was that part of our developing interest in a trauma informed response - - -?---Yes.

- - - to kids in detention. And you’ve made the point in your statement that:

Although Creative Spirits is developed as a model for community supervision –


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you’re of the firm view that the philosophy is really important to implement in the – in a custodial setting; is that right?---Yes, it’s – I do. That is right.

So, for example, page 2 talks about the key principles in that document, that’s annexure 9:

Emphasis on Aboriginal and Torres Strait Islander community engagement and the importance of a culturally safe practice.

?---That’s correct.

Continuing:

Focus on trauma informed care and practice, focus on rehab, integration of ATSIC cultural foundations and western style learning and qualifications.

All equally important in a facility like Don Dale, isn’t it?---And in – and also in community, health, education, every other organisation that’s involved with the youth, I agree.

That required training in a very different way of thinking for many of the people who were working within Don Dale; is that correct?---It would require – yes, that is correct.

And I want to suggest to you that what that model requires is training not just for the YJOs but also for their supervisors?---Right the way through.

Assistant general managers, general managers?---Executive directors, directors - - -

Commissioners?---Commissioners. Everybody.

Attorneys General?---Everybody.

You need resources obviously for a training package?---It would.

And resources - - -?---But there are – there – when this was entered there are – were staff that were already qualified in some areas that could have – and had qualifications to train the trainer, so they could have trained others.

So it wasn’t actually going to be that much of an intensive resource output?---In some areas, no.

Okay. In terms of actual ongoing funding for programs within detention centres, it’s important – I’ve wrapped it up in the question, but it’s important to have ongoing funding isn’t it, rather than just piecemeal funding for programs?---Absolutely.


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And your belief is that the upfront cost of resourcing appropriate programs is likely to lead to massive cost savings in the future?---Absolutely.

With the limited resources you did have, sir, you did your best to get some programs up and running at Don Dale; is that right?---Yes, I did. I felt that – I was very focussed on getting programs in there. There was quite a few programs I had introduced and I was – as I said, one of them was the Past Present Future, which was a program that we set up initially to run for a year. And I believe it did. It started whilst I was – the dates – towards the end of my tenure as assistant – as assistant general manager, and I believe it continued on through until the end of 2014.

Mr Yaxley, I don’t want to cut you off but I’ve been sent a note saying I’ve got five minutes left. So - - -?---So there was that program and there were other programs that we had - - -

Okay?--- - - - bridge programs that came in, we had a lady come in and teach bridge. Youth love playing cards. So we had a lady who was very elderly, she came in, she did programs with the kids playing – teach them to play bridge, even to the point where – when – they were excited to come back when she came back, because they had learnt how to show the other youth how to play bridge.

Your Honour, might I ask for 10 minutes remaining? It’s really – in my respectful submission, the Commissioners will be really interested in this evidence that Mr Yaxley gives.

COMMISSIONER WHITE: I have to acknowledge that I intervened and took away some of your time, Dr Dwyer, and I’m conscious that that’s not fair in terms of timing. Mr Morrissey seemed to be the chief time keeper.

MR MORRISSEY: Five minutes actually encompassed an extension for that, but it seems evident that Mr Yaxley has material - - -

COMMISSIONER WHITE: Something to tell us.

MR MORRISSEY: - - - that can be of assistance to the Commission.

COMMISSIONER WHITE: Yes. I think that’s right.

MR MORRISSEY: - - - so we support that application.

COMMISSIONER WHITE: Thank you.

DR DWYER: I’m grateful. Thank you.

Mr Yaxley, at paragraph 77 and 78 of your statement you talk about two particular programs, one is the Past Present Future that you were telling us about, and that program wasn’t continued beyond the original funding period?---Yeah. After I left, I


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believe it became grant funded and it was a funded program and the grant funding ceased, yes.

And that must be a real disappointment to someone like you who’s implemented it and can see the positive change that it brings. And then similar paragraph 88 you talk about the need for permanently funded ATSIC cultural programs because it’s an excellent start but then it’s wasted, isn’t it?---Yes.

One program I did want to ask you about was the project you talk about at paragraph 84 with the local artist, Les Huddleston?---Yes.

Who attended Don Dale for many years. That was a program that – well, within that program you arranged an initiative with NAAJA; is that right?---Yes, I did but the actual artist was Claudine Goronzi. Claudine Goronzi was – and has been with Don Dale for many, many years. She has done many projects with the youth and they have done some very exciting things over time. And Claudine was the one you’re referring to.

Can I hand to you a bundle of photographs. I just – I thought the Commissioners might be interested in seeing a panel that was done for NAAJA. I’ll invite my learned friend to tender them but perhaps I could - - -?---Yes, please.

- - - hand one to you. These were panels that were specifically done for the NAAJA office by children in custody as a way of promoting – they’re on the screen, the series of panels – as a way, in part, of promoting cooperation between Don Dale and NAAJA and the kids; is that right?---That was very much the focus.

And can you tell the Commissioners about those panels, what they signify?---Yes, I can. The – the panels were provided by NAAJA, all the resources were provided by NAAJA. There was a collaboration between myself and NAAJA to initiate the program. I seek to – said to Claudine who then came up with the idea with the detainees between themselves. And this concept, if you put it in an order of – and you can do that by the colours mainly – if you go from the desert to the sea. So each panel represents an area from Alice Springs through the red centre, through Tennant Creek, up through the Barkly, Katherine, Darwin, Arnhem Land to the ocean and, fortunately, we had youth in there that were from each area so they designated their time to paint and draw, representing from their own area, and then that collectively made the fence.

How did the kids feel about being involved in that?---They were totally impressed. It was just an amazing experience.

You recognise that working with NAAJA in that environment can actually facilitate communication between you and the kids; is that right?---Absolutely.

And therefore improve good governance of the centre?---Yes.


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COMMISSIONER WHITE: About how many young people were involved in the painting exercise, Mr Yaxley?---There was about 10 or 12, yeah.

DR DWYER: Sir, can I show you this document. I apologise it’s not in evidence at the moment, and I will – if I could hand that up to the Commissioners. The Commissioners will understand the late-night email searches that go on and sometimes important documents emerge. Just – I wanted to show you, as an example, in June 2014 what was your position, Mr Yaxley?---Service development – no, it wasn’t. Grants. I used to do – I was grant funding officer for youth justice.

In that role you commissioned a meeting to discuss a collaborative approach with crossover youth in the justice system; do you recall that?---No. Can I see something - - -

I beg your pardon. If I can just show you – hand you this document. I’m showing you the minutes of a meeting to discuss a collaborative approach with crossover youth in the justice system. Do you see that?---Can you refer me to the dot point.

Sure. June 2014 is the date on the top right-hand corner?---Yes, I see that.

And you see the title Meeting To Discuss Collaborative Approach With Crossover Youth In The Justice System?---Yes. No. It’s coming back to me, yes.

Crossover youth means youth that are in the department’s care - - -?---Yes.

- - - as well as the care of Don Dale for period of time?---Yes.

You wanted to organise that meeting to better facilitate the resources and services going to those kids; correct?---Yes, that’s correct and I just – this was at the time when I was working on the community based supervision - - -

I see. And you see there one of the attendees is Terry Byrnes from NAAJA?---Yes, I do see that.

And if you turn over the page under the agenda item joint cases discussion:

Mick would go like to convene a meeting with Community Corrections and Youth Detention at another time to look at improvements that can be made in collaborating.

Mick’s obviously you, Mick Yaxley?---Yes, that is.

And then Terry makes a suggestion of a multi-agency developed bail plan or similar document that would be useful in joint cases?---Yes.


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And it’s an example, again, of those agencies, NAAJA, yourself and other agencies working together to try and make the system better for kids; correct?---That’s very correct.

Thank you. That can be put to one side. Last series of questions I wanted to ask you about Through Care, you’re very supportive, Mr Yaxley, of the concept of Through Care?---Very supportive.

Is that something that you saw during your research in Canada?---Absolutely.

You were supportive of if – well, you are supportive of the Through Care model offered by NAAJA in youth detention; is that right?---Yes, and if I can make a reference to the person you mentioned, Terry Byrnes. Terry – I think it was 2011/12, it was 2012, Terry made – came in through the case management unit and myself to visit youth there, and I was open-armed with Terry coming in, because it was one of the first times that I can recall that we actually had a Through Care process coming into the detention centre. That was very focussed on the youth, consistent, and gave the youth some ability to not have to be left at the front door.

And would it be a good idea to – I’m tramping on my learned friend, Ms Graham’s, territory, but to expand that service with a worker of the calibre of Terry Byrnes working in Alice Springs?---Absolutely.

And a worker of that calibre can keep detainees informed and really help with the good management of the centre?---Absolutely, and make links to their family and make those links that didn’t go that far.

You’ve pointed out that, in another document, I don’t need to show you, that NAAJAs focus and funding was to support pre and post release?---Yes.

And so you identified a real gap for the kids who are on remand?---Huge gap.

And you’ve just told the Commission about the huge percentage of the kids who were on remand, do you think it would be a good idea to have a NAAJA Through Care worker specifically dedicated to help the kids on remand or at least the capacity to help the kids on remand?---Absolutely. There needs to be something, because that percentage is just too high in detention forever. It’s always been a high number.

And, again, having a NAAJA Through Care worker helping the kids on remand would actually help with the good running of the centre?---It would go – yes, I agree.

Nothing further. Thanks Mr Yaxley.

MR MORRISSEY: Could I – if I tender those two documents. Firstly, the bundle of photographs of the drawings.

COMMISSIONER WHITE: Of the paintings, yes.


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MR MORRISSEY: Sorry, the paintings. And secondly - - -

COMMISSIONER WHITE: ..... might ask how many there are in that bundle of paintings so we won’t lose any.

MR MORRISSEY: Nine – nine such paintings.

COMMISSIONER WHITE: So the nine photographs of the paintings.

EXHIBIT #208 NINE PHOTOGRAPHS OF THE PAINTINGS

MR MORRISSEY: And, secondly, the letter dated 2 June 2014 concerning the crossover.

EXHIBIT #209 LETTER CONCERNING THE CROSSOVER DATED 02/06/14

COMMISSIONER WHITE: Thank you. Mr O’Connell.

MR O’CONNELL: Thank you Commissioners.

<CROSS-EXAMINATION BY MR O’CONNELL [10.46 am]

MR O’CONNELL: Mr Yaxley, my name is O’Connell. I represent a former child in detention who goes by the pseudonym AN?---Yes.

You’re aware of that young person?---Yes.

If I could please get up on the screen from exhibit 160 tab number 3. If I just go to the end of that document. That’s your signature there, Mr Yaxley?---That is my signature.

And just, again, to the beginning, this is an intensive management plan for the young person AN dated 8 March 2012?---Yes.

I don’t expect you to know this but would you agree that she was 13 at the time?---I don’t know a – remember a specific age but, yes, I would say that.

And were you the person that developed that plan?---No.

.ROYAL COMMISSION 30.3.17 P-2278 M. YAXLEY XXN©Commonwealth of Australia MR O’CONNELL

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Who would have developed it?---At the time, that would have been Tanya Blakemore, the senior case manager for the Don Dale Centre.

And, however, you became aware of it and you approved it?---Yes, they were – they were intensive management plans that were coming through to me, yes.

I just want to take you through a couple of parts of that and get some comments. In the second paragraph on page 1, it says:

With safekeeping in order as set out in section 151 of the Youth Justice Act with particular emphasis on section C.

Would you agree that section C says:

Maintaining the order and ensure the safe custody and protection of all persons who are within the precincts of the detention centre.

?---Without seeing it, I recollect that that’s – would be – yeah.

And if we go down a bit further to the second last paragraph on that page it says:

Detainee requires a management regime that will ensure that her current conduct will be negated by a positive performance based set of disciplines.

What does that actually mean? That’s the second last paragraph?---I’m just reading it.

Yes?---I take that as being that her – that her conduct prior to this intensive management plan being established would be enhanced by the positive performances.

Based on a set of disciplines?---I’m not – I can’t recall what those disciplines may be.

See, the view at the time was that she was badly behaved; is that correct?---That would be a reason she would be on an intensive management plan.

And she was a young girl who was known to express intense emotion?---From memory, yes.

And the management plan was designed to try and control her behaviour?---That’s what the management plans were for. They would try to set boundaries that would allow for improved management of – with the detainee.

Now, if you – if I could turn over to page 2 you’ll see it says Accommodation?---Yes.


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If you could just go down to the bottom of that, it says:

Detainees to remain in the high dependency unit room 2 until further notice by management.

?---Yes.

That room – well, the high dependency unit was also known as the HDU?---No, that’s not correct.

Not correct?---No.

Was it known – that particular room, was it known as the bare bones room?---It was known as the high dependency unit at risk room.

Okay. But was it also known as the bare bones room?---I don’t recall it being called a bare bones room, no.

It was effectively a cell?---No, it was a room that didn’t have anything in there except a mattress and a toilet, and a window to the outside.

And part of this intensive management plan was that she was to be locked in that room and only to be let out for 30 minutes of recreation time per shift?---Yes. That would be similar to – to a BMU placement in ..... so far as the time management for her at that time. So this might have been earlier in the piece. I would expect that this management plan came into being soon after she was on a BMU placement. Sorry, not a BMU placement, a high dependency unit – in the high dependency unit and it was a further progression, or the beginnings of a further progression from being in the high dependency unit.

So you’re saying that she’d been locked down for most of the days before this management?---Well, whatever the – whatever the – whatever the placement was that she was put in, it would have been entered as a high dependency unit placement which is similar to a BMU placement for a male. It was a – it was a time when – at that time there would be a need to move her out from the general population for a period of time due to her behaviour and this was the beginnings of the management of that behaviour.

And how many shifts were there during the course of a day?---There were two shifts.

So over a 24 hour period she would be, according to this management plan, allowed out of that room – that locked room for a total of one hour every 24 hours?---That’s what this is stating, yes.

And she made a statement where she says that she didn’t have any bed in the room during the day. She only received the bed at about 11 o’clock at night. Does that sound right to you?---No. I don’t believe that to be the case. Without seeing any –


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that would have been recorded in a – in a journal, I would believe. Or there would have been some notation to say that. I don’t recall beds – it would have been a mattress, not a bed in that room.

Well, could she be right that the mattress was taken out during the day and only returned to her at night?---That could have been the case. I can’t say for sure, I’m sorry.

And she also said that there was no air-conditioner at that time. It had been removed due to previous incidents involving the air-conditioner?---There was an air-conditioner in that room and whether it was on or off at the time, I couldn’t make any judgment on that, but there was – that room was air-conditioned.

And there was a – there was a bubbler in the room? Well, she said in her statement there was a bubbler, however the water was hot and tasted disgusting, not like normal water. Do you know if there were any issues with the water in that room?---I’m trying to recall. Like I say, it’s four years ago. Whether there was a bubbler in that room or not, I don’t – if there wasn’t one in the room there was one – I know there was one outside the room just right next to the – to that - - -

Well, if I could just confine the question to this - - -?---Yes.

- - - were you aware as to any issues with the temperature and taste of the water?---No.

And she was allowed to go to school on this intensive management plan, but if she got kicked out of school she would have to go back into that room; is that correct?---If – if that – that would be dependent on the use – on the principal of the school, her being removed from the school and yes, she would go back to that room.

And she wouldn’t receive any school work and no teacher would come to assist her?---That would be dependent on the principal.

And she was only allowed to make phone calls during knows two 30 minutes that she was allowed out during the 24 hours?---That’s what it states, yes.

And - - -?---Is there a timeframe on this? Is it - - -

I’ll get to that in a moment?---Thank you.

MR O’MAHONEY: Can I ask my friend to be a little more specific with the witness, if possible, Commissioner, I only say that – the witness has had no notice of being taken to this document and he’s now being stepped through it in the most minute detail. Out of fairness to him, if he could have a chance to perhaps read it and perhaps clarify exactly the period it was.


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COMMISSIONER WHITE: I’m not sure that he needs an exact period. It’s during the period we understand when he was in management. I don’t think these questions are unfair, Mr O’Mahoney. Mr Yaxley is managing them and Mr O’Connell will get to the question, I’m sure, in the time allocated to him.


MR O’CONNELL: I’ll jump to that now, Mr Yaxley. If you have a look at the back page, it says:

The management plan will be reviewed on the 15th of March, or as required.

?---I can see that, yes.

Yes. So it would be right to say that, according to this document, she would have been in – locked in that particular room 23 hours a day for a period of at least one week.

COMMISSIONER WHITE: Well, she was intended that she should go to school though, so it’s only if she’s been excluded from school.

MR O’CONNELL: Only if she has been excluded from school.

COMMISSIONER WHITE: Well, just to - - -

MR O’CONNELL: Yes.

COMMISSIONER WHITE: - - - make sure that’s understood.

MR O’CONNELL: Yes. Certainly. Thank you.

THE WITNESS: There was opportunities for her to go to school. We managed youth in there based on their behaviour. If their – and we try our – you know, as far as from a management point of view, if their behaviour is compliant and follow instruction, then they’re able to conduct themselves in a way that the predominant number of detainees in that – in the detention centre do. And, in this instance, there was every opportunity for her to go to school and if she didn’t, then there was a consequence for her behaviour.

MR O’CONNELL: Speaking of consequences for behaviour, if we could go to page 3 under Compliance With Officers’ Instructions, the second part:

If detainee clearly refuses to comply with an instruction she is to be secured in the Behavioural Management Unit.

?---I believe that to be an error, because we didn’t house females in the BMU.


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Well, she’s made a statement where she has said that she spent a considerable period of time in the BMU, and it’s in her intensive management plan?---Can – I’d have to – that would have to be verified by the BMU placement journal.

But - - -

COMMISSIONER WHITE: Would you say that would be extraordinary if that were the case?---Yes. I believe that – can I just see the date again? Was it April - - -

MR O’CONNELL: It was the – the date was 8 March 2012?---I believe at that time, from my recollection, that there was no females - - -

Okay?--- - - - in the BMU.

But you do agree that in her written - - -?---Yes.

- - - intensive management plan - - -?---I see it stated there.

It says:

If she refuses to comply she is to be secured in the BMU.

?---Yes.

And she was known for noncompliance, wasn’t she?---Yes, she had some – yes.

So if I suggested to on you that she consequently did spend a lot of time in the BMU pursuant to this intensive management plan would you disagree?---As I said, I didn’t believe there was a BMU placement for females.

COMMISSIONER WHITE: If, on investigation of the BMU journals and records, Mr Yaxley, it is ascertained that, indeed, she was in the BMU, perhaps you might be able to offer some explanation as to how that could occur, in light of your answer just then that it didn’t happen for females?---In that – in that case Commissioner, the original thing that I can only from the top of my head right now is that if the BMU was – had no males in it at all, then that would be the only reason. But outside of that, which I’m only hypothesising, I don’t believe that females were in the BMU at all during that – in that period and I’d like to see anything contrary to that. And I’d be happy to take back my words if that’s the case.

Alright. Thank you.

MR O’CONNELL: It wasn’t – if I could have on the screen, please, from exhibit 60, tab number 4. You’ll see down the bottom, this is an intensive management plan for the same young person dated 30 March, so a few weeks later?---Mmm.


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If you go down the bottom of the first page, it notes that she’s been assessed by a psychologist recently?---Yes, I see that.

It says:

She requires specific needs in the areas of thinking with language, visual discrimination and verbal working memory, as well as she has very low social and emotional functioning.

?---Yes.

If you go over to page 2:

These areas of need for AN make the management of her in the centre difficult and need to be a consideration in the management of AN in the future.

?---Yes.

And then if I can take you to page 3, Compliance With Officers’ Instructions, you’ll see it again says at the bottom of that:

If detainee AN clearly refuses to comply with any instructions she is to be secured in the Behavioural Management Unit.

?---Yeah, I see that.

And then just above that you will see – this is in addition to the previous intensive management plan:

Please note any communication with AN will need to be delivered in clear, concise basic wording which will make it easier for her to receive. Any directions should be asked much her one at a time and any enforcements needed to be delivered immediately for it to be effective.

?---Yes.

COMMISSIONER WHITE: Can I just ask this: do you think, Mr Yaxley, the fact of the reference to the securing of this young person in BMU is in bold type suggest that there’s something unusual about it?---No, I don’t see that.

No. You would expect that anyway, would you?---Yeah. I think so, from - - -

Sorry, Mr O’Connell.

[REDACTED INFORMATION]


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I just – my time’s almost up. Just a quick couple of questions about the involvement of the psychiatrist – sorry, psychologist. Was it part – she was assessed by a psychologist. Were there discussions with that psychologist in relation to the development of the intensive management plan?---I can’t comment on that because that would have been a case management issue.

So do you know, for example, whether there were any discussions with the psychologist as to the particular psychological impact on AN in relation to being locked up in the HDU or the BMU?---I – I’ve got no comment because that would have been something that was discussed, I would say, between the case management unit and the psychologist.

Would you agree there’s nothing of that nature mentioned in that intensive management plan?---Those sort of – that – if that information was transferred between case management and the psychologist, that information would need to be disclosed to the extent to the youth workers as a privacy thing, as far as them knowing. Like - - -

So - - -?--- - - - it was spelt out there in terms that it was relevant for youth workers to address the situation, but anything outside of that wouldn’t need to be disclosed to all the youth workers on the floor.


COMMISSIONER WHITE: Are you done, Mr O’Connell?

MR O’CONNELL: Yes.


MR MORRISSEY: .....

MR O’CONNELL: Yes. I would ask for those – both of those intensive management plans to be tendered.

MR MORRISSEY: I’m instructed that they’re already in as exhibits, in the AN bundle. They’re already an exhibit.

COMMISSIONER WHITE: Alright. Thank you.

MR O’CONNELL: Just to finish off, Mr Yaxley, what was your understanding at that time as to what kind of behaviour would result in a person being placed at risk?---If they were seen to be displaying signs of at risk, that might be verbally stating it.


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Sorry?---Verbally stating that they wanted to harm themselves, which happened at times, or often actually. It would come from the Court they were at risk and it was stamped on their Court warrant. So we’d put them at risk from Court. It would come through the case management unit or medical that they would be at risk after consultation with medical or case management.

Alright. But this particular solitary confinement, if you like, in this high dependency unit - - -

MR MORRISSEY: I object to this. This is a very large topic to be raised .....

COMMISSIONER WHITE: It is, as a wrap-up question. I think that’s right. I think we’re done, Mr O’Connell.

MR O’CONNELL: Yes. Thank you, Commissioners.

COMMISSIONER WHITE: Thank you, Ms Morreau.

MS MORREAU: Thank you Commissioners. I will be taking this witness to document DAJ.0001.1092.4729_E.

<CROSS-EXAMINATION BY MS MORREAU [11.06 am]

MS MORREAU: And if I can introduce myself, I act for the mother of the witness AJ – of the detainee AJ?---Yes.

Yes. He’s now deceased. I act for his mother?---Yes.

Do you remember that particular detainee?---Yes, I do.

Now, he was one of these detainees who was placed in the BMU under an intensive management plan for some days, correct, during your tenure?---I’d have to look at some – off the top of my head I don’t – there was – you know, there were times I know that AJ was in the BMU and on intensive plans but for how long I can’t - - -

Sure. You can’t remember that now but if I suggested to you that the records of his attendances in the BMU from his bed movement records between August 2012 and July 2013 revealed that he had several stints in the BMU, one of six days, one of 18 days, one of nine days and one of 10 days, that wouldn’t surprise you?---No. Can I just make comment?

Yes?---You mentioned that evidence was based on bed – bed movements.

Yes?---The entry of bed movements on IOMS is dependent on the person putting them in.

.ROYAL COMMISSION 30.3.17 P-2286 M. YAXLEY XXN©Commonwealth of Australia MS MORREAU

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Yes?---And if you’d like – I’d only be able to make reference to those bed movements, able to correlate that with the daily journals to make – substantiate that with what you’re saying, because there have been errors in IOMS, bed movements that would be conflictive to actually what happened.

Right?---Or what beds they were in.

Okay.

COMMISSIONER WHITE: Was that – because you’ve intervened to say you could find it difficult to accept those figs from the bed movements, that sounds as though there’s some systems problems here?---I’m suggesting that there are – that there would – there can be issues with the way that the system operates in IOMS when entries are made. The detailed specifics, off the top of my head, I know that there has been times before when an entry for a bed was put in, and for some reason the system generates the same thing over a period of time. And I’m not the expert on this but I’m sure if you took the time to find out, they would be able to give you an answer on that, Commissioner.

MS MORREAU: Mr Yaxley, on the screen is an intensive management plan?---Yes.

For AJ. Now, I know that the date postdates your time as being – just over the time. I’m sorry, can I go back to the first page. Yes. 12 September 2013, that’s after you’ve left as assistant GM?---On 8 October 2013 I was in Hawaii.

Hawaii?---Yes.

Yes. Okay. I’m just appreciating that you may not have been there physically - - -?---Thank you.

- - - as assistant GM at the time of this intensive management plan, but I don’t have an earlier version. I just wanted to take you to it so see if this is an example of the procedures that you described yesterday in your evidence. If you can - - -?---What are you relating to, the procedures for what, sorry?

I’ll show you by reference to the document?---Okay. Alright.

If we move to page 3 of that document, you see there in the first paragraph there’s a progression to greater recreation time, first three days of this IMP it is for one hour, second paragraph, if there’s acceptable behaviour in the first three days, then it goes to two hours. You see that progression through there?---Yes, I do.

You were describing yesterday a series of incentives to improve behaviour as a part of these intensive management plans and I’m just asking whether this is an example of the approach that you were describing in evidence yesterday?---That would be an incentive, yes.


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Yes. And then you can see, then, just below the paragraph, so just scroll down slightly, the next paragraph on the 23rd, which is, I think, 12 days after the beginning of this IMP, that the child will be permitted to return to mainstream high security provided he’s displayed exceptional behaviour during the IMP. And then if we can scroll down further, the last paragraph:

If at any time during the IMP he displays an unacceptable level of noncompliance or inappropriate behaviour, the routine will revert back to the one hour per day and go back to that regression.

Can you see that?---Yes, I do.

Is that an approach you recall, I suppose, being in place during your period of time as the assistant GM on this IMP?---Yeah, there would have been a reversion back to the initial start and that would be based on the behaviour that was presented - - -

Yes?--- - - - for it to be returned back to - - -

I understand. And was that the basis where you said in evidence that an IMP could lead to a person being left in the BMU for longer if there were – the behavioural incentives were not followed?---That’s correct.

Okay. Now, who would determine what was the acceptable level of behaviour? How would that be defined and provided to the child by way of information?---It would come via the shift supervisor and/or the case management unit.

Are you aware that there was, in fact, a clear definition given to the children of what that was?---As far as I’m aware, they were concerned of everything on their intensive management plans, there was no informing them of what was on their plan.

Sure. It’s not on the intensive management plan, written on the intensive management plan, I’m just wondering if you’re aware of, if you can tell us if there was a process where the child was informed of what their levels of acceptable behaviour were?---That was well-known throughout the entire centre.

Okay. Now, was there any recognition in these IMPs of the impact of extended periods of isolation on noncompliant behaviour?---That was – that would have been spoken to by the – with the case management unit. That was their role.

I’m talking about though the – I think you accepted in evidence yesterday when a child is isolated for extended periods of time you could expect there might be some push back, was that ever reflected in the IMPs?---In general terms, I believe that the IMPs, as far as for longevity of time, the incidents that occurred, occurred on the outside of their – when they’re outside the BMU in this circumstance, that created a situation where they were responsible for what their actions were to come back into it, and they knew the consequences being an extension of that time.


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So your answer is no? If there was increasing poor behaviour whilst within the BMU, that would not be taken into account, the fact that they’ve been in isolation for an extended period of time preceding that?---Can you rephrase it again, because you’re sort of - - -

Talking about the effect of isolation - - -?---Yeah.

- - - leading to, perhaps, poor behaviour not reflected in the IMP, the reasons for poor behaviour after extended periods of time?---They weren’t reflected in the IMP, no.

Okay. You said part of your role was to interact with detainees’ families and you didn’t – you saw that there was some limits to that. Was there ever any approaches in these imps and the children that were the subject of IMPs to involve family members, if possible, in the management of their behaviour?---I believe from my recollection that when visits were held within the centre on visiting days that there would be no exclusion for people on IMPs to have visits, from my recollection.

No, I don’t mean interaction with family. I mean the informing of family of incidents of poor behaviour of children so that they might be able to assist in, you know, managing that child’s behaviour?---Again, the case management unit would deal directly with that.

Finally, strip searches, you say in your statement that there was always strip searches after a visit. Was that the subject of a directive?---I’m pretty sure that was from memory.

Okay?---That came from – yes.

Because you’re aware, of course – I’m just trying to reconcile that with the terms in the legislation where there’s a requirement that there be a belief that a search was necessary and a direction in respect of a particular detainee. To reconcile that legislative requirement that your evidence that this occurred after every visit, how that occurred?---I recall that came in for a period of time after there was more cases of contraband coming in. And they were deemed to come in through visits and we had to find a way to make sure that didn’t occur. And without – from the top of my head I don’t – don’t know if – well, there was a directive but I’m not sure what it was or when it came out but I’m sure it would have been post 2011 after the Boxing Day riot.

Alright. Thank you, Commissioners.

COMMISSIONER WHITE: Thanks Ms Morreau. Do we have anyone else coming to the - - -

MR MORRISSEY: We do.

COMMISSIONER WHITE: - - - lectern.


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<CROSS-EXAMINATION BY MR O’BRIEN-HARTCHER [11.16 pm]

MR O’BRIEN-HARTCHER: I apologise, O’Brien-Hartcher, if it please the Commission. I appear for AX and BX. I had thought that Mr Lawrence – but I’m obviously out of order.

I’ve been asked to cut my questions right down so I hope it’s coherent. Mr Yaxley, I represent AX and BX, they were two youths housed in Alice Springs. Are you aware of who I’m talking about?---Yes.

As assistant general manager and general manager you were responsible for making sure that detainees were housed securely, safely and effectively?---Yes.

And that conditions in the detention centre were of a decent standard?---Yes.

You don’t believe that during your time in either of these roles that there was any instances of failure to provide suitable physical facilities to a detainee?---I’m sorry, I didn’t get that last sentence.

Sorry. You don’t believe that during your time as assistant general manager and general manager that there were any instances of failures to provide suitable physical facilities to a detainee; is that right?---Physical facilities in Alice Springs and Darwin? Can you sort of expand on what you mean by “physical”.

I’ll just refer you to paragraph 208 of your statement?---Yes. Thank you.

I’m sorry, obviously, I’m directing you to the wrong – I’ll come back to that, my apologies. Let me keep going. You made it your job to be aware of the conditions in which detainees were housed?---I was made aware of conditions?

You made it your job to be aware of conditions in which detainees were housed; is that right?---Yes. Except for Alice Springs was difficult being 1200 miles away.

And in Alice Springs you relied on – for Aranda House you relied on Mr Tasker to tell you how things were going?---We had weekly meetings, yes.

Did you go down there yourself and investigate the premises?---I have been there, yes.

Did you trust Mr Tasker?---Yes.

Okay. And you wanted – you were – I withdraw that. As part of suitable facilities for detainees, you would agree that a detainee needs sufficient time out of their cells each day?---That’s true, yes.

.ROYAL COMMISSION 30.3.17 P-2290 M. YAXLEY XXN©Commonwealth of Australia MR O’BRIEN-HARTCHER

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And that they need more than one hour out of their cell each day for physical activity, etcetera?---At the time there was legislation for up to one hour, yes.

Yes?---But at times we had them out more than one hour.

And detainees should have soap to wash their hands after toileting?---That’s appropriate, yes, absolutely.

Heating in winter, cooling in summer, we’re talking about Alice Springs?---Yes.

And privacy for things like toileting?---Private – yeah, privacy to the point where there was – you weren’t actually observing them going to the toilet, yes.

Maybe not having cameras on toilets, would that be fair?---I don’t believe there were cameras on toilets. That’s correct, I believe, yeah.

Sufficient exposure to sunlight and natural light?---Absolutely.

Reading materials for detainees?---Yes.

And did the detainees at Aranda House always have each of those things?---There were times when some of those were not there, yes.

And are you aware of a complaint that was made by a Mr Yiffer from Congress about conditions in Aranda House?---Are you referring to that document you showed me earlier on?

I’m referring to the document that I showed you earlier and that you referred to in paragraph 245 of your statement, and I hope that’s the right paragraph number?---Can I just see what I referred that to in my paragraph?

245. It might make sense if you read paragraph 244 first. You were talking about examples of when complaints were made by outside bodies, and one example that you refer to in 245 is – I will just let you read it?---If that’s the correlation – if that’s the correlation between this, what I’m saying here and the document you have there - - -

I will show you the document. Now, because we’re on a time budget, Mr Yaxley, I will just step you through it briefly - - -?---That makes it a bit difficult when answering it when I can’t read it.

COMMISSIONER WHITE: Perhaps if you give him a minute or two to briefly have a look?---Just – can I just briefly have a look? Thanks.

Yes, indeed, you may?---Thanks, Commissioner.

MR O’BRIEN-HARTCHER: Thanks, Commissioner.


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THE WITNESS: Yes.

MR O’BRIEN-HARTCHER: You’re aware that that complaint raises a number of issues, including lack of soap, lack of heating and air-conditioning, lack of natural light, detainees being locked in cells for long periods of time?---Yes, I do.

Yes. Did you consider those conditions suitable conditions for detainees to be housed?---No, I didn’t.

Thank you. And you say in paragraph 245 that you took steps to provide information and appropriate responses to the issues raised. Could you just detail those, please, or give a skeleton of those, perhaps?---In reference to this particular letter, I forwarded – this was forwarded on to PSU.

Yes?---And PSU would have pursued that. I have not seen any – well, at the moment, I don’t recollect receiving any recommendations or findings, but I’m looking at the date of 5 July and if I could go – well, if you want me to substantiate the fact that we addressed these in a fairly immediate way, an audit was conducted by Barrie Clee and it may have been in response to this - - -

Alright?--- - - - letter.

So from your memory you’re saying there was an audit conducted by Barrie Clee, it may have been in response to this particular complaint?---Yes.

Are you aware of AX and BX being sent to Aranda House in June 2012?---Not from the top of my head, no.

Would you accept from me that they were taken there, in either late May or early June 2012?---Yes.

And they were housed there for almost three months. Would you accept that?---That would have been around the time that Aranda House closed, yes.

Yes. One, I think, left in July and the other in – no, both left in August I think. Would that be fair?---Aranda House closed in September.

Yes. Now, you knew of the conditions described by Mr Yiffer in that complaint?---Yes.

MR O’MAHONEY: Well, can I object, Commissioner. I’m told the document I’ve got is a high res version. I’d hate to see the low res one, it’s got a lot of the dead sea scrolls about it. If there is a clearer version of the document, I would be grateful if it could be put to the witness. There’s a decent chunk of it that I can’t read at all.



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MR O’BRIEN-HARTCHER: That is the best version that we have, Commissioner, and I can only apologise for that, but I’m stuck with the resolution that Mr O’Mahoney is stuck with.

COMMISSIONER WHITE: Well, is it sufficient for your purposes, Mr O’Brien-Hartcher?

MR O’BRIEN-HARTCHER: Yes. Well, I only have a couple more questions and it doesn’t necessarily go – I accept what Mr O’Mahoney says. The left – the right-hand side of the page does seem to have some difficulty in legibility?---The words become non-existent actually.

Thank you.

COMMISSIONER WHITE: It depends what you’re going to ask about it, of course. Perhaps if you can ask your questions we can see whether the deficits in the document are a problem.

MR O’BRIEN-HARTCHER: Thank you, Commissioner, and I’m about to be told I’m way over time.

COMMISSIONER WHITE: Perhaps if you just ask the question.

MR O’BRIEN-HARTCHER: You knew the conditions as described by Mr Yiffer?---Well, I – briefly reading this - - -

Yes?--- - - - based on that, yes, what I’ve read.

And you say that you wanted to do something about it immediately?---I’m saying that, based on my recollection, those dates seem familiar to when we did an audit down in Alice Springs.

And you’d agree that holding children in those conditions is unsuitable?---Yes.

And they were held there for three months and that’s too long a time for a child to be held in those conditions. Do you agree?---I believe that – that’s a long time to be held under those conditions.

Thank you Commissioners.

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

MR MORRISSEY: Although that document’s in a hopelessly and inadequate state it might be best to tender it in that state so that the witness’s answers and the context they were given is preserved. It might well be if my friend can produce, if they ever can find it, a version that’s not in that state, could provide that, Mr Yaxley could be


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able to see the document. If he wanted to add anything, that could be done by way of a short statement and clarification at a later stage.

COMMISSIONER WHITE: Alright. There’s no child identifying material in it as it stands?

MR O’BRIEN-HARTCHER: No, there’s not Commissioners. I would ask that it be tendered, but if we can get a clearer copy, and I will make inquiries about that, I’m happy to do as Mr Morrissey asks.

COMMISSIONER WHITE: Are you content with that, Mr O’Mahoney.

MR O’MAHONEY: Yes.

EXHIBIT #210 DOCUMENT

MR O’BRIEN-HARTCHER: If I might be excused.

COMMISSIONER WHITE: Yes, thank you, Mr O’Brien-Hartcher.

<CROSS-EXAMINATION BY MS BALLARD [11.27 am]

MS BALLARD: Commissioners and Mr Yaxley, my name is Ms Ballard and I appear for Howard Morgan, and I can assure the Commissioners this will be very quick. Mr Yaxley, I’m going to ask you some brief questions about the incident on 20 October 2010 involving Howard Morgan and Dylan Voller. You aware that Mr Morgan was charged with assault following that incident?---Yes.

And it’s the case, isn’t it, that the matter proceeded to a hearing in the Magistrates Court and Mr Morgan was found not guilty?---Yes.

I just want to ask you some brief questions now, if I may, about the incident itself. You’re aware that prior to this incident Mr Morgan had been supervising other kids in the kitchen area?---I believe that he – that the incident came from the kitchen area, yes.

Or that Mr Morgan had been supervising kids in the kitchen area?---As far as I’m aware, yes.

As far as you’re aware, and that the kids in the kitchen area had access to knives and other kitchen implements. If you don’t know then - - -?---I can’t say on that particular day what it was.

.ROYAL COMMISSION 30.3.17 P-2294 M. YAXLEY XXN©Commonwealth of Australia MS BALLARD

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Now, Mr Morgan wasn’t the person involved in the initial altercation with Dylan on that day, was he?---I don’t know that either.

Pardon?---I haven’t got a recollection of that at this time.

But you did receive an incident report from at least one other Youth Justice Officer involved?---Yes, I did, more than Mr Morgan’s, yes.

And what is clear is that when this incident between Mr Morgan and Dylan occurred Mr Morgan was at that time having to deal with Dylan on his own. That’s pretty clear from the footage? Footage of the incident on 20 October - - -?---Are you referring to when they went into the BMU area?

This is the footage of the incident that depicts Mr Morgan picking up Dylan?---He was on his own then.

He was on his own. Thank you. After this incident occurred Mr Morgan told you that immediately prior to Mr Morgan picking Dylan up, Dylan had spat in his face?---Yes.

And in the course of reporting or complaining about this incident, Dylan has provided conflicting versions of what happened, hasn’t he.

MR O’BRIEN: I object.

MR MORRISSEY: Perhaps if my friend could clarify the question and it may be acceptable if that question was phrased in this way, that he has provided conflicting versions to this witness, a general comment .....

COMMISSIONER WHITE: Is that the basis of the objection, Mr O’Brien?

MR O’BRIEN: Yes, but it’s broader than that. It’s broader than that. The evidence of Dylan Voller in relation to this matter is already before the Commission in a statement dated 25 November last year. We don’t go behind what’s in the video recording. These questions do and there doesn’t seem to be any real rational basis, or basis that would assist the Commission in terms of determining whether or not excessive force was or wasn’t used on that occasion.

Now, we’re not even certain that what’s being put to this witness in relation to him being acquitted of the charges is correct. If that’s – if that’s the case, I don’t have any information to that effect. My understanding was that he was – the charges were withdrawn. If there was a hearing, there’s no transcript been provided. If there’s a – if there was a hearing, we certainly haven’t given evidence in relation to – my client hasn’t given evidence as to his involvement in that criminal prosecution and if there was a hearing, it appears that the Royal Commission is not appraised of what was led in that hearing, because it hasn’t been provided to us and we have been very


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diligently provided with material from the Royal Commission related to every complaint.

So this is an attempt, in my respectful submission, to besmirch Mr Voller at the same time as somehow adding to the credibility of a witness who’s really not been tested yet, first of all, and not likely to be tested in relation to these background incidents. The complaint being as it was, the video being as it was, these questions are not helpful to the Commission and seek only to do those two things, which really aren’t going to help you in your ultimate deliberations.

MS BALLARD: Well, Commissioners, the objection now seems to go beyond just that last question that I asked in relation to the finding of not guilty, it’s a matter of public record but I’m not going to press that last question any further. And those are the matters.

MR O’BRIEN: Well, that’s just it, Commissioners. It’s not a matter of public record. If it was a matter of public record, I would say.

MS BALLARD: Well, those are the matters. I’m not taking it any further, Commissioners.

COMMISSIONER WHITE: You’re not pressing the question - - -

MS BALLARD: No.

COMMISSIONER WHITE: - - - with Mr Yaxley?

MS BALLARD: The final question in relation to which the objection was raised.


MS BALLARD: Nothing further.

COMMISSIONER WHITE: Yes, thank you, Ms Ballard.

MR MORRISSEY: Commissioners, we have a late application, verbal application from counsel for Mr Middlebrook to ask a series of questions arising from paragraph number 65 of the first statement. Now, the application is to ask for some expansion on the evidence over time detainees became more aggressive. That appears to be in paragraph 65 in the context of some ISR training that was sought. There’s also a request to ask questions concerning the increase in remand, the increase of females and then some questions concerning infrastructure and the use of the BMU. The last two we do not support. They’re general and without notice it is not appropriate to raise large questions like that at this point. The other ones we do support. It seems the allocation given to other people, five to seven minutes is appropriate. My learned friend will need to make the application but I think it is appropriate for me to say at the outset that we would support the application confined in those terms.


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COMMISSIONER WHITE: Yes. Thank you, Mr Morrissey. Thanks, Mr Tippett.

MR TIPPETT: I make the application. I can do it within the time allotted to me and - - -

COMMISSIONER WHITE: In relation to those more specific issues?

MR TIPPETT: In relation to the specific issues yes.

COMMISSIONER WHITE: Thank you, Mr Tippett. Leave is given.

MR TIPPETT: Thank you, Commissioner.

<CROSS-EXAMINATION BY MR TIPPETT [11.34 am]

MR TIPPETT: May have paragraph 65 up on the screen, please.

Now, Mr Yaxley, you see at paragraph 65 the first sentence. You – I won’t read it. I’ll let you read it through. You, of course, were in the youth justice system from about 2000 through to about October 2013, I think; is that right?---1998.

I’m sorry. 1998. And that’s an observation you make as a result of your experience in that system; is that right?---That is an observation, yes.

And can you tell us – can you expand on that observation by directing your attention to the reasons you believe in your experience in the youth justice system that this has come about?---The reason for this to come about and can I explain what - - -

Certainly?--- - - - is the path that we’re talking about?

Yes?---Is that in the beginning of my time working in youth detention PART was very appropriate for the level of aggressiveness that was in the detention centre because it was limited. And the restraint process was – was – was adequate. As time progressed and we got into the latter parts of 2010, past that time, the restraint for PART, at times, were not to a point that allowed for effective restraint of larger boys, more aggressive boys, that was – created more assaults on staff and, as I said, in my statement here, there was consultation with executive and with the training area of – adult custodial and youth justice to look at an option and this option came about by, as I’ve stated here, ISR coming to Darwin and – and presented – did a presentation on that program which was apparently utilised in Western Australia.

Now, did – over that period of time that we’re talking about, did you see – you mentioned a percentage of people on remand, you saw the percentage of youths on remand increasing?---Yeah, as a detainee numbers increased, the number of remandees increased.

.ROYAL COMMISSION 30.3.17 P-2297 M. YAXLEY XXN©Commonwealth of Australia MR TIPPETT

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And within your knowledge, are you able to say why that was so?---I really don’t know. It’s outside my realm why that happened.

Very well.

COMMISSIONER WHITE: But, Mr Yaxley, did you have any sense that the consumption of particular drugs was leading to this increased aggressiveness or was there some other reasons that you could identify?---My opinion is that in – the aggressiveness in the community, as a community and the crimes that were being committed, comparative to the earlier time when I was working in Don Dale had become more violent and more aggressive, and I believe that due to that, just – it was becoming a real problem because – and also the size of the – of an individual youth was bigger and stronger than it was, just say, for example, in 2005. There was – it was – we were making comments about where are these boys, what are they eating to get so big at 17 and 16 years old, and strong, you know. And there was – there was occasional ones back in the earlier days but there seemed to be more, and for what reason, I’m not – I can’t educate myself on what that reason was, but I guess in a nutshell the level of aggressiveness and violence that was being displayed in the community was – was being translated to detainees that we would be receiving into the Don Dale centre and Alice Springs.

Thanks.

MR TIPPETT: And final question: the youth justice system, at least when you left in 2013 on long service leave, was trying to come to terms with that; is that correct?---Sorry?

Trying to come to terms with that changed set of circumstances?---Can you sort of elaborate what you mean? Coming to terms?

Well, what I mean is that the youth justice system was dealing with that changed set of circumstances in old inappropriate infrastructure and with a lack of resources?---Correct.

Thank you.

COMMISSIONER WHITE: Thank you, Mr Tippett.

MR MORRISSEY: There is now a short – sorry.

MR O’MAHONEY: Yeah.

MR MORRISSEY: I’m told a couple of minutes of questions from counsel for the - - -

COMMISSIONER WHITE: If it’s not too long then we’ll take a break.

.ROYAL COMMISSION 30.3.17 P-2298 M. YAXLEY XXN©Commonwealth of Australia MR TIPPETT

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MR O’MAHONEY: It will be a handful of minutes, Commissioner. I assure you.

COMMISSIONER WHITE: I’m not restraining you.

MR O’MAHONEY: I’m grateful for that.

<CROSS-EXAMINATION BY MR O’MAHONEY [11.39 am]

MR O’MAHONEY: Mr Yaxley, you’ve just answered a few questions from my friend, Mr Tippett, about, in your own words, the increased aggressiveness of the detainees that you saw towards the end of your time within the system, around 2012 as opposed to 1998; remember that?---Yes.

Am I right in saying, sir, based on your answers that were two components to that increased aggressiveness. One was that you witnessed an increase in aggressive behaviour towards the staff within the centre?---Yes.

Could you flesh that out a little bit for us?---The – the nature of detainees that were coming in, and also the fact that there was a group of detainees that knew each other really well in there, often led to sort of like a – I wouldn’t put it as a gang mentality, but it was – they certainly fed off each other. And the youth workers were in a position where they – we needed to sort of ensure that that was closely monitored.

So if I could ask for some specificity if you can. What sorts of behaviours were you seeing, say, in 2012, that you hadn’t seen in ’98, 2000?---Well, a classic is the riot. I mean, we’ve never seen a riot in Don Dale until 26 December 2011, and then – I think one of the other factors that needs to be – for the aggressiveness was – I think it’s a bit like the animal kingdom with males and females together. That was a real issue.

COMMISSIONER WHITE: In other words, getting more – more females were coming into the centre when you just had one or two or none at all for a period of time the testosterone levels were kept under control?---Thank you, Commissioner, that’s what I’m referring to.

MR O’MAHONEY: I was going to ask you, are you referring to the movie or the Orwell novel? But I think you’ve clarified that. Yes, my friend has corrected me. That’s right. Can I move on to pick up on the last point you made about the combination of male and female detainees. Do you remember yesterday you were asked some questions about the erection of a wall within Don Dale?---Yes, I do.

My friend was very careful to make it clear he wasn’t talking about an area of land north of Mexico. Do you recall being asked about whether you felt in your own view and based on your own experience whether that was a development that served some purpose for both staff and detainees alike?---With the limited infrastructure of the

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core walls of that building, and the limited ability for us to be able to make any changes whatsoever within that building, the construction of that wall, to me, was one of the only initiative that we could make in the confines and the limitations of that infrastructure.

Sir, you might recall and tell us if you don’t, that at the end of a number of questions about the wall it was put to you that, “Well, if it was such a good idea why wasn’t it seized upon earlier erected at an earlier point in time”, do you remember that?---Yes, I do.

Can I ask for your views on this, Mr Yaxley, was one of the reasons that the wall became a more pressing requirement or a more urgent requirement the explosion of female detainees within Don Dale. When I say explosion, explosion in number of female detainees?---The numbers – as with aggressiveness, I guess you could put in the same sort of category but not the same as far as what was different back in the early time in my tenure to later, was the intermittent number of female detainees, and yes, there was a – there was a distinct period of time in the latter part of my tenure where there was an increase of female detainees coming into detention unlike we’ve ever seen before.

Was it the case the more the number of female detainees increased the more urgent the erection of a construction of this wall was - - -?---That was – that was one of the considerations of why we needed to do it, because we – we had found that having females down in the bottom section, like I said yesterday in quite clear terms I hope, was that there was a need to have a more distinct separation from females to males because, as was pointed out by counsel, there was no consideration for any – well, there was consideration but no approval of any separate female accommodation in the Don Dale Centre, and this was the best we could do.

COMMISSIONER WHITE: But I thought this was – I did think this was canvassed pretty fully yesterday.

MR O’MAHONEY: Absolutely. And my final question is this: Mr Yaxley, you touched on very early in your statement your experience working in Wildman River. Do you recall putting pen to paper about that?---Yes, I do.

Sir, just for the benefit of this Commission, that is an initiative that’s been referred to a number of times. Is there anything that you’d like to draw to the Commission’s attention that might assist the Commissioners in their work.

MR MORRISSEY: Could I just rise about that? This is not a trivial question to be asked but the answer to it may not be suitable in the time period. This seems to be a matter in which it may be suitable – if Mr Yaxley were prepared to extend any more of his time that he’s been generous with, that he could reduce his comments about Wildman River to, perhaps, a short note or further statement. Because I don’t think it’s fair to him and I think the Commission – I submit the Commission would benefit from something like this but not in the time that we have now. I say at once I did


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raise with my friend that this would benefit the Commission so I’m interrupting now in a somewhat graceless way but my submission is it should be handled in that way.

COMMISSIONER WHITE: Mr Yaxley has, in fact, prepared some really useful material for us, Mr O’Mahoney, if you’ve got something more to contribute about the Wildman River proposal - - -?---

THE WITNESS: I can – I will make it brief, Commissioner, if that’s okay?

COMMISSIONER WHITE: All right.

MR MORRISSEY: I withdraw the objection.

COMMISSIONER WHITE: It’s not an objection. It was really just to suggest if it’s going to be a very long answer, we might - - -

THE WITNESS: I will try and make it as concise as I can. The time I spent at Wildman River was around 2000, 2001. In that time, the ability to be able to work with youth in the Wildman River compared to Don Dale was that we had a routine day where the interaction between the youth worker and the detainees was very much focussed on getting to know them in a different way than you do in a detention environment. Because the activities that we did were something that would never be put into a detention centre. And I can give you an example: a helicopter hands on the oval at the Wildman River with the big string, you know, the rope underneath it, they pick up, and they picked up sand bags that were filled up by the detainees. The detainees would then go to a area that was – needed to be sand bag the for salt water to intrude onto – where it was intruding onto the fresh and they’d do sandbagging there. The other activities, I’m just trying to be brief, because these activities made a difference into how we interacted with the youth in comparison to working with youths in a detention – in the detention environment. We used to go down to the barrage at shady camp and clean up all the bins on a regular – regular basis, and being a fisherman that was the last thing you wanted to do is get out of your car and smell rotting fish carcasses. So they were changed regularly. We went to windows on the wetland and mowed all their lawns, and they had rapport with the management there. And they used to provide them with a Coke and a chocolate bar at lunchtime and they looked forward to going there. And they were very impressed that that was happening on a weekly basis. And I’m talking at this point four or five detainees with one officer, and the relationship was really good. And it was providing an opportunity to the community to see that youth in detention can have the ability to go out and communicate in the community in a safe and – environment for everybody concerned. And one of the other things that I was really happy with when I was working there and I was personally involved with this one, as I was the others, was the plantation of a private farmer who required some – I forget the number – it was thousands and thousands of trees and he only had a certain period of time and he found out that we had Wildman River and he came and out, it would have been management, for us to go there and we had four or five, again, detainees who went there on a – over about a week and a half period and planted for this


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farmer all his – nearly all his trees. And the relationship again that they had with the – so it was introducing detainees to the community, whilst they’re still incarcerated. And the ability for Wildman to be able to do that was – was one of the unique things about that place.

MR O’MAHONEY: No further questions, Commissioners.

MR MORRISSEY: Sounds like we could all have many further questions about it though. I have three matters and in mercy to Mr Yaxley would the Commission sit on a bit while we do those and then he could be released.

I have three matters and in mercy to Mr Yaxley would the Commission sit on a bit while we do those and then he could be released.

COMMISSIONER WHITE: Yes.

<RE-EXAMINATION BY MR MORRISSEY [11.50 am]

MR MORRISSEY: Could exhibit 64.080 please be put up on the screen. This is a report done from the Children’s Commissioner. Could we move forward, please, to the page ending 4009. What you have here is a document dated 2 May 2012 and it concerns the training statistics as at that date. Would you just run your eyes over that. Are you familiar with that document?---No, I’m not.

Would you mind just checking to see, does it accord with your – in general terms, with your recollection as of approximately that time - - -?---Can you just say the date again, please.

May 2012?---Okay. Thanks.

So that’s the date. It might be before that period of time the statistics were gathered, probably April and March of 2012. Do you agree that there was – you see it says 80 current juvenile detention employees?---Yeah.

It says there are 80 who are part qualified?---Yes.

And 27 who are not. Does that accord with your recollections?---No, I can’t just specifically off the top of my head remember if that was the numbers or not but I’m looking at it.

We’re going to want to tender this, I just thought I would ask you whether there was something about what’s in it that was blatantly wrong or should cause us to look further. If you go down please to, do you have 009 in front of you there?---Yes, I do.

So do you see here that at paragraph 4 it says that:

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The three week induction program has been delivered twice.

?---Yes.

It has a February to March program and then an August to August program; you see that?---Yes.

And you’re aware that was delivered by Mr De Souza in association with yourself and others?---Yes.

Yes. Thank you. So in terms of who had completed what level of training, what this appears to record is that 21 employs have completed that induction program?---Yes.

86 have not. Does that sound right to you? I’m looking there at six and seven?---These are all casual staff, aren’t they, or not?

It appears to be. I was going to ask you that question, but is that - - -?---No. No. They wouldn’t have been all casual staff, no.

Okay?---It was permanent and casual.

Do you think those numbers look right to you though, that it was about 21 had completed the juvenile detention three week index program but 86 hadn’t?---Well, it was ceased after that.

Yes. Sorry, I don’t follow the answer there?---Well, the three week program did not continue after that.

Yes. I won’t take you back to those questions. You’ve already - - -?---Yeah.

- - - told us that. Alright. Alright. Thank you. And if you just look quickly at that paragraph 8, do you agree that, with those numbers, that the youth mental health first aid that 25 staff had completed that training at that point?---I mean, without seeing the training records, I’m – I’m not going to dispute that, no.

I understand. Really what I’m giving you a chance to do is to point out any obvious error that jumps out at you about this?---Well it’s not – not all staff are covered.

Thank you for pointing that out?---That’s .....

No, no. That’s fine. That’s fine. I’m just wanting to – because we’ll tender this, and if there are any short comes or gaps, you could point that out. If you just run your eyes down 9 through to 15, if you could?---Yes.

I appreciate what you’re saying, I’ll talk at you as you read. I appreciate you saying this is not your document. If you see anything that looks like an obvious error - - -?---Okay.


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- - - some of it you won’t be able to comment. I’m not asking you to say it’s right - - -?---Okay. Yeah.

- - - but you might point out you need to look at that further, that’s wrong?---Okay. No prison staff have attended a three week induction program.

So the comment there may relate to the issue of prison staff sometimes working in the centre but not doing the program?---Yeah. There was a limited number, yeah.

Yes. Is there anything else there that you wanted to - - -?---No. I don’t see - - -

Yes?---There’s nothing I can sort of question on that that I’ve got answers for.

Alright. Thank you. Well, that was really a vetting exercise, Commissioners, but I tender that document, understanding it’s not his document. Sorry, that’s tendered.

COMMISSIONER WHITE: I think that’s already in, Mr Morrissey.

MR MORRISSEY: Thank you.

Could I just ask you some questions about the tender bundle 74. This is a document concerning the swearing charts. I think this was referred to but not tendered and, if that’s the case, you recall you were taken to this document?---Yes.

But if – as a matter of caution, Commissioners, I tender that document, it’s TB74 at the moment.

EXHIBIT #64.74 TENDER BUNDLE 74

MR MORRISSEY: Thank you, Commissioners.

Finally just an issue concerning the reference that you made to the potential – you’re not a computer person yourself, obviously, but you – you have a familiarity with IOMS and the way it was supposed to work?---I worked closely – I – yes, you’re talking four, five years ago but at the time, yes, I was.

Thanks. You mention an issue that arose out of the bed records and I wanted to ask you some questions about the way in which one checks whether a person was placed in the BMU by reference to whether they were on a placement or not. I think that arose in the context of being asked questions about a female detainee who said she was in the BMU?---Yes.

You thought that may not be right?---Yes.


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Now, apart from people who were placed in the BMU according to the traditional cell placement regime, limited by the Act and limited by the regulations for 24 and 72 hours respectively, you’ve also spoken about others who found themselves in the BMU on other bases. You’ve said there were a few who were there on rare regrettable occasions for over school reasons because there was nowhere else to put them?---That’s correct, yes.

And you did also note that on occasion a person was placed there at risk, could a female be placed there at risk in the BMU because there wasn’t a specific designated female at risk area?---There was a designated at – female at risk.

I apologise. I must have misread something?---High dependency unit.

Alright?---Room 2 was – and room 1 as well was moved – was changed into a – so we had two at risk rooms but unfortunately one was utilised by a high dependency detainee for about 11 months which made it very difficult to have more than one.

What do you say to that, is it possible that a female detainee was placed in the BMU in that situation, where there was no access to the existing at risk rooms for females? Firstly, do you recall it, and secondly do you say .....?---I’m trying to recall if there was an instance where that would be the case and off the top of my head I’m not able to make a distinction on whether or not there would be a female in the BMU or at risk at this point in time.

Thirdly, if a person was placed into the – you’ve referred to – I won’t take you over it, you will recall that you were taken to that directive, which permitted persons to be placed in the cells in the BMU at management discretion for a variety of reasons, as set out in the 2011 memo, and you will recall you were shown that directive?---You’re referring to the intensive management?

I am?---Yes.

I am referring to that. So where a young person found themselves in the BMU for that reason, in other words not on the 72-hour placement but under IMP, is it the case that if there were in there for that reason, not being a placement, the records, therefore, would not – the records in daily journals, BMU journals, would not record them as being there on an isolation placement?---It would be, the BMU placement would be signed off as a BMU placement and the amount of hours that would be spent in that BMU placement would be signed off, and there would be a reference made that they would be on an intensive management plan from the BMU. And - - -

What if they found themselves there not under your traditional 24-hour placement, responding to a particular bit of behaviour, but they’re in there as part of the ongoing management plan, for example, discretionary factors had them in there for 20 hours in a day, would that reflect in the BMU journal?---You’re testing my memory, but I believe that once the BMU placement journal was completed and signed off, then there was reference made then – continuation ..... BMU placement journal of them


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being housed in the BMU on an intensive management plan, not under a BMU regime.

If the person was in the BMU under intensive management plan say for 23 hours or perhaps for something a bit less, say it happened to be 20 hours for a particular day, what bed would they be recorded in, in the bed records?---It would be recorded as the BMU cell.

What if they spent some of the period of time in their bed but, for management reasons, they had spent some of that day in the BMU cells?---If there was a movement from one to the other that would be recorded where that movement went to.

Yes. Alright. Thank you Commissioners, those are the questions I have and I don’t believe there’s anything further to tender. Commissioners, would you be prepared now to release Mr Yaxley.

COMMISSIONER WHITE: We would indeed. Thank you very much, Mr Yaxley, for your assistance to the Commission. You’ve given us a lot of information that will be very useful to us. We’re obliged to you for the care you’ve taken in preparing your statement and the extra work that you’ve done?---Thank you Commissioners.

COMMISSIONER GOODA: Thank you.

COMMISSIONER WHITE: You’re release from your summons now?---Thank you very much.

<THE WITNESS WITHDREW [12.01 pm]

COMMISSIONER WHITE: We’ll just take a 15 minute break now.

ADJOURNED [12.01 pm]

RESUMED [12.25 pm]

COMMISSIONER WHITE: Mr Morrissey.

MR MORRISSEY: Commissioners, I call Salli Cohen.

COMMISSIONER WHITE: And she’s here.

.ROYAL COMMISSION 30.3.17 P-2306 ©Commonwealth of Australia

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<SALLI COHEN, AFFIRMED [12.25 pm]

<EXAMINATION-IN-CHIEF BY MR MORRISSEY

COMMISSIONER WHITE: Please sit down.

MR MORRISSEY: Thanks, Ms Cohen. Would you state your full name, please?---Salli Cohen.

What’s your occupation?---I’m a public servant.

In respect of this matter and this inquiry have you prepared a series of statements?---Yes, I have.

And, specifically, could I take you to them: did you prepare a statement dated 21 February 2017?---That’s correct.

Does it have 20 annexures attached to it?---I beg your pardon?

Does it have a series of annexures attached to it?---Yes, it does. Yes, it does.

And have you had a chance to read that statement?---Yes, I have, indeed.

And is it true and correct?---Yes, it is.

I tender that statement.

EXHIBIT #211 STATEMENT OF SALLI COHEN DATED 21/02/17

MR MORRISSEY: May I say to the Commissioners there are some procedural matters that arise with diverse annexures to diverse statements. It is proposed, therefore, at this point to simply tender the statement. This should not prevent people from cross-examining if they need to or questioning on those, but those issues we feel can be worked out over the course of the day and dealt with at a later time without dealing with them now.

COMMISSIONER WHITE: Yes. Thank you, that’s noted.

MS MORREAU: ......

Did you also prepare a statement dated 8 March 2017?---There are two, I believe.

Yes, very well?---Yes, the one on my screen is correct as well.

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Very well. Have you had the opportunity to look at that statement?---Yes, I have.

And are the contents of that statement true and correct?---Yes, they are.



THE WITNESS: Excuse me sir, just may I add, we made – we identified there are a couple of typos in the statements the day before yesterday and I believe that’s also been submitted. Just making sure. Thank you.

MR MORRISSEY: I see. I’m sorry.

Did you also provide a second statement dated 8 March 2017, that being statement 134 – sorry, statement 134?---Yes, I did. However, I don’t see the statement on the screen.

No. In the running sheet that the operators have that will not be this statement. It will be the one after.

COMMISSIONER WHITE: Are you tendering this one?

MR MORRISSEY: Sorry. Do you mean the 8 March, the first 8 March.

COMMISSIONER WHITE: No, the second 8 March.

MR MORRISSEY: I do mean to tender the second 8 March.

You have had the chance to refer to that second 8 March statement?---I believe, yes.

Is it true and correct?---Yes, it is.

EXHIBIT #213 SECOND STATEMENT OF SALLI COHEN DATED 08/03/17

MR MORRISSEY: Did you also provide a statement dated 20 March with annexures?---I believe it was 23 March.

Just excuse me for one moment, please. We do have a 23 March. The one I’m referring to is a statement responding to Karla Raby?---My apologies, that’s also 23 March.


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Is it? Very well. The statement dated 23 March in response to Karla Raby, have you had a chance to read that?---Yes, I have.

Is the contents of that statement true and correct?---Yes, it is.


EXHIBIT #214 STATEMENT IN RESPONSE TO KARLA RABY DATED 23/03/17

MR MORRISSEY: Did you also compile a statement dated 23 March 2017 in response to Mr Middlebrook?---Yes, I did.

Now, in respect of that statement, did you provide some detail concerning the events of the conference in September of 2015?---Yes, I did.

At the time when you made the statement did you have access at that time to the full relevant documentation?---No, I didn’t.

Alright. Well, in light of that, would you – Commissioners, what I propose to do in respect of that statement is not tender that at the moment. I’m told there’s the possibility of a clarifying updated statement in respect of those matters and what’s proposed, therefore, is that when that’s provided we would tender the updated statement with an annexure of the old un-updated statement.

COMMISSIONER WHITE: Right.

MR MORRISSEY: But that’s only emerged minutes before the Commissioners came in.

COMMISSIONER WHITE: Sure.

MR MORRISSEY: I think that’s the appropriate way to manage it.

You acknowledge you did make some statement but I’m going to hold off tendering it at this point?---Yes.

Do you follow that?---Thank you.

Did you also make another statement dated 23 March 2017 in respect to evidence from Mr De Souza?---Yes. I did. I’m not sure. Have you got the date there? 24 March, I believe is - - -

That’s dated 24 March?---Yes.


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Yes. Thank you. In respect of that statement, have you had the chance to read it?---Yes, I have.

Is it true and correct?---Yes, it is.

I tender that document.

EXHIBIT #215 STATEMENT IN RESPECT TO EVIDENCE FROM MR DE SOUZA DATED 24/03/17

MR MORRISSEY: Could we just have on screen RCN001100050003. That’s a letter from the SFNT regarding your statements?---Thank you. Yes.

And does that – is that a covering letter attached to a list of editorial and other changes that you wish to make?---Yes. Thank you.

I tender that also.

EXHIBIT #216 LETTER FROM THE SFNT

MR MORRISSEY: Could we turn to some substantive questions now. I just want to ask you firstly about positions that you held. Did you commence in youth justice in 2011?---In 2011 I worked alongside Ms Jodeen Carney. I was in a different position then for the Department of Justice, however, I ended up assisting Ms Jodeen Carney in her review.

Were you Deputy Director of Community and Justice Policy for the Department of Justice?---Yes, that commenced at the end of 2011, you’re correct, my apologies. Yes.

Your work for the Carney Report at that time, that was a key report in youth justice in the Northern Territory?---Yes, it was ......

It gave you some insight in the strengths and weaknesses and various factors at play in the youth justice system at that time?---Yes, it did.

Did you have any experience before that in the youth justice system?---No, I did not.

Very well. Was that – was the currency of the recommendations made by the Carney Report the subject of further review later on when you were Executive Director of Youth Justice at the direction of the Minister’s office. That report coming to be known as the Dolphin Report?---That’s correct.


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Between November 2012 and August 2013 you were Director of Policy Coordination Unit at NTDCS?---Yes.

I’m going to run through these things now just to make sure - - -?---Okay. Thank you.

- - - and it’s really a chance for you to make sure we’re not leaving ourselves in error. August 2013 through to August 2015 you were Executive Director Youth Justice Northern Territory Department of Corrections; is that correct?---Yes, it is.

Alright. Thanks. You also hold a master’s degree in criminology from where?---The Griffith University in Queensland.

Was that as a young person that you did that or was that - - -?---No, I recently completed that. I completed that last year in 2016.

Were you studying that or on and off studying that whilst – were you enrolled in that whilst you were performing the roles here under question in 2013 through ’15?---Yes, I enrolled and I studied part-time online and completed that in 2016.

So did you have a study case load to deal with as well as the many and varied tasks that you had - - -?---That’s correct.

- - - as Executive Director. Since 2011 have you been the representative for the Northern Territory Government on the Australian Juvenile Justice Administrators Group?---No, not since 2011, no.

Can you explain for how long you have been a representative on that group?---Yes. I became the official Northern Territory representative when I took on the role of Executive Director. So in August 2013. Prior to that I attended two AJJA meetings, one when I was with the former Dept of Justice and the second one in my role as Director of the Policy Coordination Unit at the request of the Minister.

Were you the chair of that group from July 2014 through to July 2016?---That’s correct.

And you were the chair of that group, it follows, therefore, in August 2014 when the incident leading to and following the tear gas incident occurred?---That’s correct.

Now, the Australian Juvenile Justice Administrators Group has an acronym AJJA?--- AJJA.

I shall refer to it as AJJA in the course of these questions so that we know what we’re talking about. Does AJJA publish principles and standards for juvenile justice, including for detention centres?---Yes, it does.


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Do those principles and standards including the following: that children and young persons are different to adults, vary in maturity levels, depend on adults for care, supervision and guidance?---Yes, broadly, yes.

Secondly, Juvenile Justice Services should recognise vulnerabilities, developmental levels, gender, culture and religious beliefs, promote procedural fairness while paying regard to legislative and service rights?---Yes, that’s correct.

Is that one of the principles?---Yes.

I’m going to take you through these?---Okay.

Three, do the principles include to provide facilities and resources required to deliver effective and efficient juvenile justice systems?---Correct.

Safe physical environment for detainees and staff, maintain - - -?

COMMISSIONER WHITE: Are you agreeing with it?---Yes, I am my apologies.

MR MORRISSEY: Yes, sorry. I will just – yes, I won’t put every one into the precise form of the question but if you could say yes - - -?---Okay.

- - - or if I read one out that doesn’t belong, just tell us?---Okay.

Competent staff and supervisors?---Correct.

Staff training to be complete?---Correct.

Fourthly, detainees that have a safe environment free from harm or harassment?---Yes.

With self-harm and suicide strategies in place?---Yes. I don’t actually remember the principles being that specific, but I don’t have the document in front of me but the context makes total sense.

In the future it may be that we put the document - - -?---That would be useful, yes. Thank you.

If you would just excuse me for a moment. Look, I might move on at a general level here because I apprehend you’re familiar with these principles?---Yes, and generally they do make sense, yes.

So fifthly, separation or isolation is only to be used in response to an unacceptable risk of immediate harm, escape – harm or escape, and is to be used for the minimum possible amount of time. You agree with that?---May I just ask is that in the high level principle document or is that in one of our supporting documents.


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I think, since you’re asking that question, we need to bring it up. Look, what we will do is I’ll defer pursuing that because it may take us time to bring that one up?---Okay.

We’ll do it in due course. The principles of AJJA nevertheless are constructed deliberately to take into account the UN rules for the protection of juveniles deprived of their liberty; is that correct?---That’s correct, yes.

Also the UN standard minimum rules for noncustodial measures; is that right?---That’s correct.

And, finally, the UN standard minimum rules for the administration of juvenile justice?---Yes.

And these rules also give expression to the sentiments expressed in the convention on the rights of the child and the convention against torture as they apply to children who are deprived of their liberty, is that correct?---Yes.

We’ll simply park those principles. I’ll take you back to those. We’ll just need to produce those in due course. And move now onto another section. Could we now deal with your duties and responsibilities. Could we have on the screen, please, supplementary tender bundle 288 and go to page 0237. Now, there you’ll see on the screen section 5F, the performance and conduct principle, and it requires a public sector officer to do a number of things and sub 1 – so 51A(1) requires that the duties be carried out objectively impartially, professionally and with integrity and, (2), to the best of the officer’s ability; is that correct?---Yes, it is.

And you accept you were bound by that?---Absolutely.

Could we – section 49 dealt with breaches of discipline. I won’t take you to that – to that now but you accept that it was a breach of discipline to fail to uphold the performance and conduct principle, that being the principle before you on the screen now; that is correct?---Within the context of PSEMA, which is the Public Sector Employment Management Act.

Yes?---Yes.

Correct. And it’s a breach of discipline to fail to uphold that principle, but it’s also a breach under sub M to provide information in the course of employment that he or she knows or reasonably or ought to know is false or misleading, is that correct?---I don’t have it on the screen in front of me but that appears totally correct.

You’re broadly familiar?---Yes.

If need be - - -?---Yes, that’s right.

- - - you can go to M, but that’s - - -?---Yes. Honesty and integrity - - -


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COMMISSIONER WHITE: Well, we can scroll down to M, if it’s in the document, is it?

MR MORRISSEY: Yes. It will be in this document, yes.

COMMISSIONER WHITE: Can you scroll down to M if it’s there. Thank you.

MR MORRISSEY: If this is a difficult process, Madam Commissioner, Commissioners, I don’t need to take the witness to that particular provision or ask for commentary.

You were familiar, broadly speaking, with the requirement that it was a breach of discipline if information was provided that one knows or ought reasonably to know is false and misleading?---Yes, I do.

That wouldn’t just ..... your level - - -?---Yes, I am.

- - - that’s - - -?---Of course. It applies to the public sector. Yes.

That’s – yes. That applies, generally speaking. Now, next, I’d just like you to look at the NT, Northern Territory Public Service Code of Conduct as at December 2001. That’s at supplementary – sorry – Commissioners, I’ll tender that legislation unless the Commissioners have a view that tendering legislation is not desirable?

COMMISSIONER WHITE: It is actually very helpful to tender things where they come in the evidence. That’s a useful tracking point.

MR MORRISSEY: Yes. We shall do so.

COMMISSIONER WHITE: So let’s do it. That’s just – is that the whole of the Act or are you just doing particular provisions.

MR MORRISSEY: It is. We believe it is excerpts of the Act.

EXHIBIT #217 EXTRACTS

MR MORRISSEY: Next of all we come to supplementary tender bundle 289. This is the Code of Conduct. And could we go please to page .0223 which is pages 2 and pages 3 and 4 of that document. Now, there are a number of relevant principles – sorry, we need to go on to page 3 if possible. Page 3 and 4. Thank you. I’m grateful for that. So sub 10.1 contains a principle of support to the government of the day. You’re familiar with that principle?---Yes, I am.

And principle 10.2 concerns the giving of advice to government; is that correct?---Yes, that is correct.


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And, in particular, it provides:

A public sector officer is responsible for providing to government advice which is frank, independent, based on an accurate representation of the facts and as comprehensive as possible.

And it goes on to stress that that includes setting out advantages, disadvantages, costs and consequences and where appropriate making recommendations; is that correct?---That’s correct, yes.

That’s something that you have to consider at the high level that you were and are working at on a daily basis; is that correct?---It’s a fundamental part of our role, yes.

And sometimes one hears in public parlance the use of the phrase:

The duty of public servants to give frank and fearless advice.

?---Yes.

The word “fearless” is not used here, but you understand that that, if you like, popular phrase is encapsulated in a more functional and articulate way in that provision?---I use that phrase myself and I use it with my staff.

Alright. It’s an important section and guide because it is very often the mournful duty of public servants to be the bearer of bad news?---It can be at times, yes.

It can be. Is it the case that there are various disincentives to giving frank and fearless advice, which require the backbone of a section like this to encourage the public servant to do so. In other words you know that someone senior to yourself is not wanting to hear the particular piece of advice, you know they have good vested reasons for not wanting to hear it, but you have to tell them; is that correct?---Our role is to provide advice so that the decision-maker and the final decision-maker normally being Cabinet or your Minister or Ministers is able to make an informed decision.

That’s - - -?---And that is fundamental to our role.

And that’s consistent with the principle of individual ministerial responsibility where the Minister, in effect, answers for the conduct of his or her department and is entitled to expect good advice, including frank and fearless advice, in coming to good decisions?---Yes. I agree. That’s the state of play.

And, furthermore, it is important – sorry, it’s a fundamental presumption of that system that the ultimate decision-maker will benefit from having all the facts as explained by experienced public servants?---Absolutely.


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Yes. Thank you. Could we move to 10.3, Implementation of Government Policy. Does that section provide guidance to senior public servants including yourself that requires that programs be implemented promptly – decisions be implemented promptly, consciously and with full regard to government policy?---That’s correct.

And in providing advice and implementing programs, judgment must be exercised?---That’s correct, yes.

But that reference to judgment being exercised is subject to the matters that you referred to before, that ultimately the point of providing this guidance is so that the Minister or Cabinet, the ultimate executive decision-maker, can make good decisions?---Yes, that’s correct.

Based upon advice and upon a knowledge of the facts. Very well. I tender that document.

EXHIBIT #218 IMPLEMENTATION OF GOVERNMENT POLICY

Can I turn your job description, please. This is an annexure to Ms Cohen’s statement number 2 and is annexure SC1. Now, your Honours, from time-to-time, just would you excuse me for a moment, Ms Cohen?---Yes.

I’m going to refer to statement number 1, number 2, number 3, number 4. That is because a running sheet has been provided to the operators and that will allow them to do that at short notice.


MR MORRISSEY: I don’t want the Commission or Ms Cohen to be misled by statement number 2.

COMMISSIONER WHITE: We’ll hardly notice what you’re saying. We’re obliged to you for doing that and making it easier for the .....

MR MORRISSEY: Do you have the job description in front of you there?---Yes, I do. Thank you.

Thank you. Now, the primary objective was to provide strategic high level leadership on youth justice services and programs across the NT including youth boot camps and facilitating effective management of youth detention centres; is that right?---That’s correct.

It goes on and it says other things ..... family responsibility centres, to maximise resource usage and program outcomes?---Yes.


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Now, I just want to stress that a key focus of your job was to facilitate effective management of youth detention centres; correct?---That’s correct, yes.

And that is what you were trying to discharge when you wrestled with the various issues that have arisen, to which I will take you; is that right?---That is correct, yes.

It was really subject to the job description. You had responsibility to a provide high level leadership and advice across youth justice?---Yes.

Now, leadership, that was particularly important in terms of those people at executive level subordinate to yourself such as Mr Caldwell; is that right?---Yes, and across the youth justice team.

And an effort to do that also occurred when you relocated – physically relocated your work space adjacent to the Holtze facility when difficulties occurred?---Yes, and I also worked at times from the old Don Dale Detention Centre, I relocated to Holtze after the Holtze Centre had been established and I also spent significant time at the new Don Dale Centre.

You also had to be accountability for the efficient effective management of the human financial assets of a division; is that correct?---That’s correct. And if I just may add to my last statement, I also spent as much time as I could at the Alice Springs Youth Detention Centre as well obviously.

Are you able to say how frequently you got there?---I don’t have my diary in front of me, and very - - -

.....?--- - - - early on in the piece, I really hoped to get there every single month and that didn’t happen. I could say generally that I got there a few times a year.

Could you say you were there effectively mid-2013 until mid-2015, so two years?---I continued to visit across the two years, yes.

You can say you might have been there somewhere between seven to nine times?---I’d prefer to have my diary in front of me to give you a number.

That’s alright. Alright. Let’s press ahead. And the effect of those responsibilities, I’m going to ask you just a generalised question here, we’ve spelt out in some detail what your responsibilities were, but I just want to put a couple of scenarios to you about public service ethics, the ethics of what you’re doing there. When you’re instructed to pursue the implementation of a policy that you think is morally repugnant, but you don’t think is outside the law, how does one deal with that? This is a general impressionistic question I’m asking you, but how does one deal with that situation as a senior public servant? You morally disapprove, not politically but you find it morally repugnant, but it’s not outside the law, what’s your position then?---Where you have opportunity to provide advice to either senior staff and, in my case, that would be the Commissioner, who’s also the – referred to as the Chief


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Executive Officer and opportunities to either meet with the Minister at his or her office, it’s important similarly to what I said earlier that frank information and advice is provided to the decision-makers. So that they can be aware of alternatives, different options and options, perhaps, that others may choose to pursue. And you have to give that advice and then, as a senior public officer, you have to accept that a decision may be made which may not be the one that you would have liked to have been made, but it is critical that you provide the information that you believe is necessary for that decision-making body or person to make.

Yes. And now can I just take that a little bit further?---Sure.

What about the situation where having provided the advice on more than one occasion and made it very clear, not merely what the facts were but what you thought those facts indicated, if it became clear to you that your superior, whether it be a Commissioner or a Minister or a combination thereof were proposing to persist in a course that you found morally repugnant, despite the ongoing advice, and where you were satisfied they understood the advice that you had given, what is your situation then?---It’s a difficult situation.

Is the situation one of a choice between the nuclear option of resignation or the persistence in the role in the hope that you can make a difference?---And, I think, depending on what the situation is that we’re discussing, and I appreciate this is generic, and I think - - -

Yes?--- - - - you’ve identified, ultimately – I think there are three options. One, you can make that decision that you cannot continue to work within a particular environment and ask perhaps to be transferred or you might say, “Look, it’s probably best that we part ways”. Two, you can continue to provide the advice that needs to be provided in a manner that’s appropriate. So it’s inappropriate, when a decision is made to follow a particular path and that path needs – you are directed to follow that path, you need to do that. So it’s inappropriate to go back, and I’ll use the term continue to hammer something when you don’t have that opportunity. However, there may be other opportunities where you can come in and – and perhaps in a different environment and a different decision start to make a difference.

Yes?---Or, thirdly, you just go on, and that decision will be made at an individual level.

Yes. I will seek for there to be some application of those insights as we move through some of the things that happened here. Can I move now to the issue of how your work proceeded. In August/September 2013 you arrived in the Executive Director role; is that right?---Yes.

And you appreciated, and you worked with Russell Caldwell closely?---I worked with Russell Caldwell previously in the Department of Justice, so we knew each other, yes.


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It’s apparent from the exchange that you felt you worked well with him?---Very comfortably.

Can we have up on the screen annexure SC5 to statement number 1. What I’m putting up here is a briefly that came from Russell Caldwell when you first arrived in the role. Now, so with respect to that document there could we please move to 623. It’s 0622 at the moment on the screen. So – we’ve just lost it, but – just generally speaking, are you – since – you’re familiar with this document?---Yes, I am.

Alright. So what we’re getting at here is that you quickly came to appreciate that there were numerous challenges within the youth justice space that you had now entered; correct?---Yes. Thank you to Mr Caldwell’s briefing, yes.

Alright. So he referred to it as a brain dump, it may be, to distinguish it from other things we’ll just call it the brain dump throughout. Some of the things that he pointed out to you as problems was, firstly, that the Executive Director, that being him, tended to get embroiled in the operational aspects of the service areas and distracted from the broader strategic level and there was a skeleton staff within the Department for policy and strategic work - - -?---May I just ask which bit of the page you’re looking at?

Yes. Sorry, I think I can direct you to that?---Yes. No, I see. That’s that second bullet point. Yes, my apologies. Thank you.

You have it?---Yes.

Thank you. Alright. That’s one of the issues that he raised?---Yes.

In youth detention, if you look at the dot point beginning youth detention, there was reference there to a constricting fiscal environment?---That’s correct.

It noted a chronic – noted an acute difficulty of unfunded liabilities, but it spoke, generally speaking, of a constricting fiscal environment. It spoke of increasing levels of detainees driving up operational expenses?---Yes.

To the tune of 30 per cent a year, and it also made reference to much needed infrastructure development at both Alice Springs and Don Dale?---That’s correct.

And that was a reference to not merely to long-term repairs but immediate repairs – immediate repairs that were needed?---That’s correct.

There was also noted to be a requirement, or much work to be done in developing and implementing proper operating procedures; is that correct?---I’m just trying to read quickly as I can to catch up to where you are. That may be the –

We’ll try to assist too?---Sorry, that might be the next page.


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I think so. What page number are we? So 623, still on 623 but if you look about 10 lines down in that bottom paragraph?---Yes. I’m with you now, yep.

You see a need to increase the range of programs, services and employment and education options for detainees?---Yes.

And a pressing need to move away from the predominantly casual staffing model and to establish a professionalised Juvenile Justice Officer workforce?---That’s correct.

And he made a comment of the huge amount of work needed in this space?---Yes.

I tender that document. When you arrived.

EXHIBIT #219 ANNEXURE SC5 TO STATEMENT NUMBER 1

Commissioners, it’s been a long morning. I’m happy to press on, and it might be of benefit to do so, I just note that it’s now 5 to 1. It’s not time to stop but I will keep going until the siren blows, if I may.

COMMISSIONER WHITE: Alright. Well - - -

MR MORRISSEY: It’s for the Commissioners to ring the siren.

COMMISSIONER WHITE: We could go through until 1.30, Mr Morrissey.

MR MORRISSEY: Thank you. I’m grateful for that.

COMMISSIONER WHITE: We had a late break so - - -


COMMISSIONER WHITE: If everyone else can manage until then we will. Thank you.

MR MORRISSEY: I see no protests being lodged here.

COMMISSIONER WHITE: They may be beyond protesting. It might be just a quiet whimper. Let’s see how we go.

MR MORRISSEY: It’s that final flat lining of the monitor that one hears.

When you arrived in 2013 there was – you stepped into a situation where there was a great deal of one might say reform work being done. The Pillars of Justice Program was on foot; was that correct?---Yes, that was the – the then government’s law – law and order reform policy, that’s correct.


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Yes. Correct. And so that had an aspect which touched upon youth justice and youth detention but it wasn’t limited to that?---It did more than touch on us. It was a driving piece of work for us to deliver.

Now, in a search for strategic direction there was mooted to be a strategic plan to be known as the Youth Justice Framework; is that correct?---Yes, that’s correct.

And that was – it was always an ongoing work; is that correct?---It was a significant piece of work that needed to be developed. Yes.

Can you explain very briefly what the Youth Justice Framework was, particularly, when did work on it commence, when was it finished, why was it delayed, as briefly but as usefully as you can. Thank you?---Right. So the Youth Justice Framework came from the, what I refer to as the Carney Review, Jodeen Carney’s report, and within her nine recommendations she established that there was a need for a comprehensive review of youth justice. So not – and with all due respect, not just detention but let’s look at a youth justice system proper. That was agreed to and endorsed by the then Labor Government and work started to implement the recommendations, including the establishment of the unit to which I was transferred to and starting to work on the framework. Following the 2012 NT general election, there was a new government - - -

Was that August 2012?---Yes, that’s correct.

Thank you. Go on?---There was a new government and work did not continue immediately on the Youth Justice Framework.

Alright. When was it revived?---When I commenced in the role of Executive Director, Youth Justice in August 2013, that was one of my first big pieces of work to get going. It – it really got under way following discussions that I had with the then chief of staff to Minister Elferink, that was Mr Steven Dunham, who requested or directed that I check that the starting point for the development of the Youth Justice Framework was it’s still – were the nine recommendations from the Carney Review still valid. So we undertook a process, I referred to that as the Dolphin Review where we checked with front line staff ..... centres and the family responsibility centres and I undertook discussions a number of NGOs many of whom had actively contributed to the development of the Youth Justice Framework. Actually it was something that the NGO sector had been advocating for quite a number of years.

You’ve jumped forward to the Dolphin Review and chronologically we haven’t reached that yet. I’m interrupting now just to point out that the Dolphin Review occurs a bit later in 2013 or reports then; is that correct?---Yes, in August 2013 I started as the ED. I don’t know if I have at hand the actual date that Mr Dunham directed me to check if the recommendations for the Carney Review were the valid starting point, if you will. And then the Dolphin Review was later at the end of that calendar year.


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Alright?---......

May I ask you something about Mr Dunham there. Just in terms of communications between the Executive ..... Executive and Mr Middlebrook and yourself in the organisation, was the protocol that communications between the executive branch, between the Minister and his office, and Mr Middlebrook went through Mr Dunham as chief of staff. Was he the prime conduit for such discussions?---I think it’s important to us. Mr Middlebrook in terms of his – because obviously he had the relationship that a CE has with his or her Minister’s office, but very often and it’s not unusual the chief of staff, in fact, it’s very common, to be very active in the engagement in the communications with the department and when I refer to the department in that sense, I mean the CEO. And so Mr Dunham and all chief of staffs would be very much across the wishes and the direction of their Minister.

Yes. Very well. Of course, they would be, but just in terms of communications between – to use names, Mr Middlebrook and Mr Elferink was, to your observation, with what frequency was that done directly between the two and with what frequency was it done using Mr Dunham as an intermediary?---Again, it’s difficult for me to say with what frequency, but I am comfortable to say that Mr Middlebrook regularly communicated with Mr Dunham and regularly communicated with the Minister and vice versa.

I think in your statements you’ve set out some of the modes by which that communication took place?---Yes.

By means of briefs and emails and - - -?---That’s correct.

- - - the other pathways that there were?---Yes.

Thank you. Were you aware that Mr – sorry, just – at that time, 2013, the Department had a – as a chief priority, completion of the Darwin correctional precinct at Holtze; is that correct?---Yes.

At a general level, I think you made the comment and you pitched it high, or pitched it at a higher level, this had a significant impact on the availability of certain staff and the support that the Department could give to deliver support services, supports and services in youth justice; is that correct?---That’s correct. One of the things that we identified in the development of the Youth Justice Framework, and I’m not sure if you want me to go back and finish that .....

I do. No. Sorry. I apologise. If you had more to say, say so?---Sure.

Yes?---And then so we kicked off with significant consultation across what I will refer to as the youth justice sector to develop the Youth Justice Framework, which was really a comprehensive response to those young people at risk of entering the youth justice system or in the youth justice system and their families, so it really went from the principles of early intervention and prevention right through to those


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who become involved in the correctional system and may well end up in detention, being on remand or sentenced or both. And then how do you appropriately support that young person and their family out of those systems so that they can reengage successfully with society with very much the underpinning hope that they don’t reoffend or increasing recidivism. It also included elements of absolutely essential workforce development, accountability and transparency so the people who were engaged were, as I said, the NGO sector, a number of Northern Territory Government agencies. We did have one Australian government agency, representatives from the Court and a couple of other centres.

I’m sorry, Ms Cohen - - -?---Yes.

- - - may I just intervene for a moment, just – and none of what you’ve said is irrelevant, but - - -?---Thank you.

- - - I wonder if you could target, perhaps I should have said this at the start of the question, if you could target what you’re saying there to the issue of how that impacted on the delivery of support and services in particular to the youth detention centre?---Yes.

So I appreciate it’s relevant in response to what you’ve said?---Yes. Sure.

But could you - - -?---I appreciate that.

- - - could you direct it that way?---My apologies. So very much in terms of youth detention and we need to align that with community corrections as well. May I just point out, because I think this is important, the Northern Territory, during my time, was the only jurisdiction that did not have bodies referred to in other jurisdictions as youth community. So the – the young person’s version of community corrections within youth justice, in the Northern Territory, and that’s – it’s a matter of scale and having enough staff being able to deliver the functions of community corrections so detention and community consider core work it’s important that we link those but very much focussing on developing an appropriate and professional staff, developing appropriate supports and mechanisms including programs for young people, including their families in the system.

I think could I just link that to something else here. You were – you were aware, when you came in in August, you were aware that Mr Caldwell had already before you joined been working for some time on a Cabinet submission?---Yes, I am.

And were you aware that that process had actually been commenced back in 2013 at a time when Margaret Anderson had an executive role?---Yes, she was the previous Executive Director.

Okay. Now, do you recall, it seems by inference that it’s likely at least that Mr Middlebrook as Commissioner would have had a role in commissioning a Cabinet submission. Just, I know you weren’t there when that was done but given processes


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that must be so, mustn’t it?---An agency would only start ..... with the Chief Executive Officer and I think it’s reasonable to assume that the Minister had either direct or agreed that, yes, it would be useful to pursue a Cabinet submission.

Could I just have supplementary tender bundle 263 up on the screen and when we get it there, it will be page 297. Now, thank you. Just excuse me a minute. Actually I think we can – I won’t take the witness to this because it was really designed to refresh memory but I do tender the document as it will assist with the chronology.

EXHIBIT #220 SUPPLEMENTARY TENDER BUNDLE 263

MR MORRISSEY: I’ll spare you questions about something that happened before you were there. Now, were you aware that there was, if you like, a history that had come up through – from at least 2009 onwards, that there was a history of multiple infrastructure and staffing proposals. There was really quite a mix of such proposals put up by operational and departmental staff over those years?---Certainly during my time I became aware of different documents, very first up when I commenced in the role it was very much focussing on what Mr Caldwell had shared with me, but I did become aware of other documents as I was in the role.

I think it’s quite clear that you jumped into action fairly quickly about this which I’ll come to. You were aware from a reasonably early stage that there were recommendations that had been made by operational staff for various reforms; correct?---Yes, I am. They spoke to me about those.

And at a high level of generality those related to improving infrastructure?---That’s correct.

One of significance is there was a requirement that there be a reduction of the over casualised workforce and an attempt to – well, a wish to deal with that problem?---Yes. And I think it’s fair to add that staff were yearning to be appropriately trained, and that was made very clear.

Yes. And that training proposals were a matter that you were aware had been made in the past, and had not been sufficiently acted upon by the time you got in?---I’m not sure that the – I’m fully across all of the training proposals. I’ve heard some evidence that’s been given. But certainly staff had told me that they had been calling for appropriate training that went beyond what they had received, if they, in fact, had been lucky enough to receive it when they commenced duty.

Could I just ask you a structural question here. It’s interposing into the chronological approach I’m trying to take, but training fell into a line of command and control which is a different line of command and control to the operational line in which Mr Caldwell operated; is that correct?---So yes, there was a training centre that reported to a different Executive Director, one of my colleagues.


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Can you step us through that. So the training centre – we have heard evidence from a youth justice training officer, Mr De Souza, he reported to Ms Westmacott?---That’s correct, at one point.

She passed away and was replaced by another person. Who was that?---After Theresa, I believe there may have been an acting situation but Mr Victor Williams headed up the training centre and when we were fortunate enough to engage Mr Williams to come and work in the youth detention centre, Mr Cameron Tyrrell acted for a period of time and I’m not sure who the training director is now.

Alright. Now, Mr Tyrell was also head of HR?---Human resources, my apologies, and workforce development, yes.

And who did he answer to in that capacity?---To Ms Ros Lague.

And Lague was that – she was – she’s the Executive Director at your level, but with a different area?---That’s correct, she was – if you wish, for the corporate services, the area has a much longer name that is in my documentation somewhere, but I can’t quite remember it. Strategic responsibility and business service, corporate services.

She answered .....?---Yes, we were colleagues.

Thank you very much. Just returning now to this chronology, now, this Cabinet submission that we’re referring to, could we just have annexure SC5 to Ms Cohen’s statement number 1 up on the screen. We want at 633, please. That’s currently at page 622. So here we have a note from you, in the second email down the page. You’ll see it’s from you and you’ve said:

Dear all, please find attached my changes to the Russ cab sub. Can you please get back to me ASAP and Ken wants this on his desk ASAP.

?---Yes.

You by that point, by that date had – were familiar with what Mr Caldwell had done; is that correct?---Yes, that’s correct.

Now, we’ve heard Mr Caldwell describe in his submission – sorry, I tender that document.

COMMISSIONER WHITE: Is it not sufficiently tendered as an exhibit to the statement?

MR MORRISSEY: .....


MR MORRISSEY: I misread my note, apologise for that.


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So Mr Caldwell has described this Cabinet submission as:

An attempt to address the real time issues we were facing on a daily basis.

Would you agree with that way of describing it?---I think that’s very reasonable, yes.

That appears at Caldwell’s statement at paragraph 39, Commissioners.

Was it also the case that the original proposal that was being developed from May 2013 was for a total of approximately 9.1 million, that being for redevelopment of Don Dale, and the Alice Springs Centre. And also 2 million for a new staffing model?---That sounds reasonable. I don’t have the Cabinet submission in front of me but that sounds reasonable in the terms of the order of the dollars, yes.

What I might do is just - - -?--- .....

- - - if we could just go – if we could ..... that screen be moved to page 646 and 647. That might assist you?---Thank you.

So if you look on the – if you look to the – I appreciate you will read these things more normally than anyone else in this Commission will, but if you just look there, you will see the allocations that are suggested down the bottom?---Yes.

So broadly speaking do you agree with what I put to you?---Basically in the first year we were seeking 2 million for staff with an ongoing and then a capital injection in that year of 9.2.

Yes. Okay. So that was the request?---Yes.

I believe that has been tendered. Now, at the time when this occurred in September 2013, you became aware that there was a level 1 incident at Don Dale involving about eight detainees. I’ll just give you some details if that helps you to remember?---Sorry, what date was that, the incident?

It’s September 2013, I don’t have the precise date of that. It’s an incident involving eight detainees where boys are said to have got into the ceiling, females then joined them in the ceiling, they took food. There was some damage around the centre in the ceiling via the ceiling and there was a suspicion there might have been sexual relations between at least two of the kids at that time and you obtained permission from DCF to administer the morning after pill to a particular – do you recall the accident?---Yes, I do.

COMMISSIONER WHITE: You’d hardly forget it?---No. That’s correct.

MR MORRISSEY: You refer to that as an escape attempt. We heard evidence from the detainees involved that – in that event to the effect that what they did they viewed or at least those who spoke here viewed as being a protest against the conditions they


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were living in and their treatment by their YJOs, particularly boys claimed they weren’t being adequately fed. Were you aware of the investigation that followed that incident, or firstly, was there an investigation by the PSU?---Normal practice would have had the PSU investigate level 1 incidents.

Do you recall that happening here?---I’m assuming it happened. I don’t recall specifically. This was the first incident that I was involved with, if you wish, in terms of being the Executive Director. But it does not strike me as odd that the PSU would have done their investigation following.

Can I ask you in respect to PSU reports. The PSU was a branch that reported directly to the Commissioner; is that right?---Yes, that’s correct.

But when they produced a report, either one of their incidental reports as directed or one of their regular standing audits, did that perforce come across your desk before it went to Mr Middlebrook?---It wouldn’t necessarily come across before. It went to the Commissioner. Sometimes the PSU would have, at the Commissioner’s direction, undertaken investigation and he would have been provided the information but regular standard process audits etcetera – audits absolutely we were involved. The Executive Directors and the Commissioner directed that all Executive Directors partake in the audit committee so that we were actively involved.

Yes. Thank you. And just to clarify, so I understand the audits, in terms of the individual investigations that arose from time to time in response to matters arising?---Yes.

Whatever they were, was there a single occasion that you can think of when you were shut out of that process, when you were denied access to a report?---To an investigation?

Yes?---There was one instance where I became aware of an investigation when the report had been finalised and I was asked to sign it.

Which particular one was that?---That was in relation – it was a report that was done primarily focussing on Mr Jimmy Sizeland and I believe it also made reference to Mr Caldwell.

Yes. Can you recall – I take it from that that occurred towards the end of your - - - . That was close to the end of my tenure. It would have been in 2015. I’m not sure if I have the date accessible.

That’s okay. We’ll see what we can find on the out about that over the break. Alright. Thank you. This was – you describe that in your statement as being a very real demonstration of the fragility and unsuitable of the old Don Dale infrastructure; that is correct?---Yes,

I did.


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It wasn’t a shock to you because you had already had Mr Caldwell’s warnings about the need for infrastructure improvements?---It was a shock in that I had never witnessed or been involved in an incident or have gone after a detention centre to an incident, so for me, as the first time I had been involved in an incident it was certainly one that remains in my mind.

Yes?---And then it made more sense to me why it was so important for us to get the appropriate facilities.

Alright. Because, and that’s against a background where you had Mr Caldwell’s brain dump to you and you had the Cabinet submission that was currently on foot?---That’s correct.

And you had some report, if not - - -?---That’s correct.

- - - the full details of previous Cabinet submissions and other requests that had been made by operational staff in a plaintiff cry for more money?---It made it very real.

A few days after that there was another incident where two girls as far as you know placed in the BMU following that event, and moved to ..... rooms, again, tried to get to the roof but were thwarted in doing so. Is that correct?---Do you have a copy of that incident report.

I don’t have it handy here. That’s fine, thanks for pointing it out, if you can’t, just tell us and - - -?---Yeah, I would prefer to see it.

- - - if it’s sufficiently important, we’ll come back to - - -?---Okay.

I will move over that one. Now, at that time you also had a colleague Ms Nobbs-Carcuro?---Ms Amanda Nobbs-Carcuro joined Youth Justice in head office and her first role was primarily to undertake the summary review of the Banksia Hill report.

The Banksia Hill report relates to a very specific disturbance in Western Australia at Banksia Hill; correct?---That’s correct.

There were a number of contributing factors which I’ll come to in a moment. Because you thought there could be some business come for your department, you asked Ms Nobbs-Carcuro to report upon it?---No, that request came directly from the Minister and the Commissioner. Ms Nobbs-Carcuro didn’t report to me directly – actually, I will go back on that a little bit. Ms Nobbs-Carcuro joined Youth Justice proper after the Banksia Hill summary report, so initially she worked from the Commissioner’s office while she was doing that report.

I see. I understand. Thank you - - -?---My apologies. I didn’t make that clear.

No, that’s okay. No, no. Don’t apologise. That’s helpful. Is this a document that you annexed at SC10 to your first statement?---Yes, I believe I did and accept it, yes.


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Alright. Could that please be brought up onto the screen and what do we

have here, a memorandum directed to the Commissioner via yourself from Ms Nobbs-Carcuro?---That’s correct.

Can we please go to page 0044 on that document I’m just going to highlight for the Commissioners and just ask you to make sure we’re correct. If you look at the bottom of that page you’ll see that there are – the fail – you see there’s a paragraph that links some of the difficulties that you had in the infrastructure and staffing of Don Dale to the potential dangers that were arising?---Yes, that’s correct.

Set them out. So you can see there’s reference to the sort of – the sort of risk factors are that firstly it was noticed that both procedural and dynamic security at Don Dale had been declining for some years; is that right?---Yes.

And then it’s set out in dot point form all of the, or some of the matters that were analogous between Don Dale and the situation that existed at Banksia Hill prior to that particular conflagration?---Yes.

Do you agree with that?---Yes, I do.

And in particular she noted that there were dysfunctional and strained relations between staff and management and staff rostering practices were - - -?---That’s correct.

- - - an issue. Notified organisational – sorry, just to stop there. That was plainly the case in youth justice in the Northern Territory, to your knowledge, at that time, that you knew that there were issues?---With rostering?

Yes?---Yes.

And that there were examples of dysfunctional and strained relations between staff and management?---Yes, that’s correct.

It was an issue you wanted to address, in other words?---Absolutely.

I’m pointing out that there’s a problem is not such to say that we’re seeking to put any blame on you for the problem but we need to acknowledge that was an issue that you faced?---Yes, it was.

You faced the issue of no definable organisation and purpose. Is that something it was hoped that the youth justice frame work would address, strategic direction?---Yes, and from that flowing through what you would do in any organisation, certainly the departments I’ve worked with in government build and foster an aligned purpose and a shared vision for what we were trying to achieve.


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I’m going to move through these and the reason for doing so is I apprehend that you’ve seen them and you accept they were there, but there might be one where you say, “I’m not sure that’s right”. You agree there was a lack of professional performance framework?---Yes, I do.

Inadequate and inappropriate recruiting process?---That’s correct.

Some of these issues are interrelated, aren’t they, the rostering - - -?---Yes.

- - - the over casualisation and - - -?---That’s correct.

- - - the recruitment process?---Yes.

The inadequate and antiquated training was a problem that you saw?---Yes.

Did you also see that it was difficult to get compliance with such training that there was, were you aware of, for example, there were issues raised by a number of witnesses who appeared here already saying although training modules were offered they were sometimes very ill-attended chiefly because they couldn’t afford – managers couldn’t afford to let the staff leave the floor to go and do it. You were aware of that difficulty?---It was an extraordinary conundrum that we faced. We had an unskilled or untrained workforce, so many people there, and I would like to point this out, worked very, very well and did their utmost, how do you – so the conundrum that we faced is how do you take a workforce away to provide them with that structured training and the skill sets and the understanding that they need and continue the business of the unit? So it was something that we struggle the with regularly and it was something that we struggled regularly – sorry, that the superintendent and the assistant general manager struggled. How do you roster appropriately to do the things that you want to do in the detention centre and have the necessary staff there to allow all the programs and the education and all the things that need to happen in a detention centre happen and train staff at the same time. And it was an absolute sticking point.

Yes. Could I ask you very quickly that in that respect. Do you recall Mr Rainbird and was he still employed at the time?---Yes, I do recall Mr Rainbird.

How long did he remain in his position after you joined?---Not for very long, he was there for a few months, he would have gone from 2013 and into 2014. The exact date I’m not clear but that would certainly be on records.

Yes. It is. Alright. Just to keep going through that list, you were aware of the difficulties posed by a reactive model of detainee management?---Can I just ask – yes, I’m following you, yes, yes.

See that?---Yes.

Lack of centralised record keeping or data collection?---Yes.


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Lack of record – recreational facilities, recreational activities?---Correct.

You were aware of some to do what they could to cover the gaps in recreational activities?---And staff did amazing things. I remember the Katherine Agricultural College would bring horses to the Don Dale Detention Centre and so the kids would learn how to ride and they do doing tricks, they were doing all sorts of things, there were a number of other programs that we’re delivered there.

I think we’re aware of some of those. I won’t take you there now. Others might choose to?---But staff did their very best to do their best.

Some staff did?---Some staff did, yes.

Alright. Now, you also note that Ms Nobbs-Carcuro’s memo noted the failing and unsuitability of the buildings and structures at Don Dale?---Yes.

And you were obviously aware of those?---Yes.

You’re also aware that mere infrastructure will not be a complete – I’m not taking you to that now, I’m just asking you the question, mere infrastructure improvements on its own was not the answer to the difficulties. There needed to be, one might say, cultural change promoted by good training, good staffing and good rostering?---There needed to be a comprehensive change to youth detention in the Northern Territory.

Thank you. And also page 445 of that document, you can note here that it was pointed out that – in the second paragraph, the one beginning Banksia Hill and it provided like this:

The Banksia Hill and other jurisdictional experience show that when instability exists improvement will not come from target hardening a centre, e.g., installing bars, grills or fences, or toughening staff responses. A holistic approach that recognises security and safety are underpinned by active rehabilitation regime and positive relationships between staff and detainees is required.

Now, you saw that and you understood it; correct?---Interestingly though, Banksia Hill did a lot of toughening of their centre but they also had extended I think already a number of programs and improved or increased, if you will, already what was a substantial Youth Justice Officer training regime.

Yes, but that’s in the follow-up to the riot?---Yes.

I think the point here was Banksia Hill showed merely being tough is not going to work?---I agree.

And you agreed with that at the time?---Fundamentally.


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I suggest that you made that very clear both at the time and subsequently?---Yes.

Very well. So just to be clear about this, that document was called for and directed to Mr Middlebrook; is that correct as well as to the Minister?---Yes.

In the normal course of things you know as a certainty that that was provided to Mr Middlebrook; correct?---Yes, I believe, because it went up to him.

Yes. Can you say that that went to the Minister from your own knowledge?---My – my belief is that at a minimum the Commissioner would have discussed it.

Yes?---With the Minister. Whether the Minister saw the actual memorandum, given that it’s not addressed to him, I’m not sure. But it would make sense that the Commissioner would have discussed it with the then Minister.

We’re nearly at the end of this little section and there’s a document I want to take you to. That might be the time to cease. This is an annexure to your statement number 1, annexure SC19 and I wonder if this could be, please, opened up at 442, or 0442. It’s on 3, is it? Yes, could we please have 0442 and 3 together on the screen, sorry, 3 and 4, I’m instructed. I apologise. 0443 and 0444 are the ones that we want. Grateful for that. Alright. Do you see that there’s an email of yours dated 14:9.2013 halfway down on the left-hand side of the screen. Do you see that?---Yes. I’m just reading it.

That’s fine, you can read it as I read it because I went this to be read into the transcript. Did you advise Mr Middlebrook in the following terms:

Ken, I believe that we’re very close to having a major incident at DD. As you are aware there was a third attempt by two girls last night that has resulted in them being placed in the BMU for 72 hours. There are significant warning signs that are very similar, if not exactly the same as those identified in the Banksia Hill report including though not limited to inappropriate staffing structure and recruitment methods, breakdown in communication across and between all levels of staff, lack of clear operational philosophy and framework, inadequate training, etcetera, etcetera. We have put some measures in place, however, I am of the firm belief a complete overhaul is essential.

And then you went on to say this:

We are committed to doing this and as you know have started.

You then went on to say this:

I do not believe –

sorry, just to stop there, you were giving him frank advice because you thought he needed it?---I was sharing absolutely with the Commissioner my views, yes.


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You went on to say this to him:

I do not believe however that the current cab ..... adequately highlights these major concerns. This is not at all a reflection on the work Ross has done, to the contrary. In fact the reality of Don Dale will not be captured and will not be fixed by the current scope of the submission.

You said:

I think we have three options, submit the current one with the caveat that there’s more to come, adjust the current one to focussing on what needed now for infrastructure and staff, recognising significant work must be done, must be undertaken to develop a robust.

And then you say:

Wait until we have all our ducks in a row. May I ask as a matter of urgency that we need to discuss this.

And then if we go back, we get your response. So that was what you sent to him at that time?---Yes, that’s correct.

If we just go back in the same document to the start and you will see Mr Middlebrook’s response. Now, you see there he says – do you have the section “I agree Salli”?---Yes, I have that in front of me?

And could you read through that. And what I wanted to ask you is this, when you get to the end of it, you could say obviously this email exchange is not the full extent of discussions that you had with him and if there’s other ones you want to add to, that’s fine. It doesn’t appear that he responds to the substance of what you say and I will just ask you to characterise this as best you can. You were there and the plain words are there. Do you agree with this: what he appears to have done to you is say, “Look, I agree, Salli, however” – in a variety of words, what he said to you is that’s just not going to happen now?---May I just read the email.

I thought had you. Please do yes. I’ll speak as you read. I’m going to ask you, is the effect of what he said to you there – as you read that, I’m going to draw something to the Commissioners’ attention that I’ve been imposing the shot clock without mercy on my learned friends and the revenge of my learned friends has just occurred. I’ve been told .....

COMMISSIONER WHITE: Well, Mr Morrissey, we have a commitment too for a conference at quarter to 2.

MR MORRISSEY: Yes.


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COMMISSIONER WHITE: Which is with someone in Western Australia so we do need to rise for a few minutes.

MR MORRISSEY: May I conclude with the question I wanted to ask.

Do you agree in that particular exchange there, Mr Middlebrook has not dealt with the substance of what you suggested. He’s really, without spelling it out, said to you in politically real terms, that’s not going to happen. Let’s just get the infrastructure submission in; is that correct?---I think that’s reasonable, but I also think it’s important to note, I think the Commissioner is trying to also identify other options, being aware of his environment.

Yes. Yes. Yes. I understand. Okay. Well I won’t pursue that right now. Thank you. Is that a convenient moment.

COMMISSIONER WHITE: Yes. Thank you.

MR MORRISSEY: That’s in evidence. Thank you.

COMMISSIONER WHITE: Now, what time? We do have a few things to achieve.

MR MORRISSEY: The Commissioners, as soon as humanly possible and it’s just a matter of when you will be able to resume.

COMMISSIONER WHITE: I think it will have to be half past 2.

ADJOURNED [1.59 pm]

RESUMED [2.35 pm]

MR MORRISSEY: Okay. Could we just have brought up on the screen, please, the document RCN.0005.0004.0213, that being the Juvenile Justice Standards for 2009 of the AJJA. I’m just going to take you back to the AJJA, and we will tender this in due course. Alright. Now, could I just ask you to look on the screen there. Do you see – can we please just scroll down to page 5, that is, page 0217 on the screen. We’ve got a series of headings with numbers, and those numbers go through in the end to number 10, Health and Wellbeing. Now, you’re familiar with those?---Yes, I am.

What’s the terminology? What do you call these, are these principles?---These were the AJJA, the Australian Juvenile Justice Administrative Standards that were introduced in 2009, separate to the document that was produced much later which was called the principles.


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What is the name that you give to these rather more detailed items under the heading of 1 Procedural Fairness, 2 Informed Advice and so on? What are they?---A standard.

Each is a standard. So there are 10 standards contained here?---That’s correct.

You’re familiar with those standards?---Yes, I am.

Before lunch I was asking you questions concerning particular matters that arise under the standards, and you queried why it was that I was putting such specific matters to you, and that’s because you understand that the broad standards issued later on are more general in nature?---No, I was referring - - -

COMMISSIONER WHITE: I think they’re principles, aren’t they?---You had referred to the – I was - - -

MR MORRISSEY: I apologise. Sorry?---When you said principles I assumed that you were referring to the AJJA principles which is a different document to the one that you have on the screen.

And that I have no doubt that is the terminology caused by me, not by you, so do you agree though that the principles that I was putting to you which I was reading from this document are contained in the AJJA standards?---Yes, I do.

And the principles that were later issued are – they’re more broadly phrased, but they’re consistent, you would say, with these particular standards; correct?---Yes, they are consistent and I think also reflect probably the difference in time between the original document and the principles documents, a more contemporary document, but they are – they’re shared values.

They’re shared values, and one is simply pitched at a higher level of generality than the other?---Yes.

May I tender this document, please.

COMMISSIONER WHITE: The AJJA standards for 2009. And are you going – what about the principles? What year were they, if you can recall?---Yes. We released the principles in 2014, if I’m correct.

EXHIBIT #221 AJJA STANDARDS FOR 2009


MR MORRISSEY: In a particular period of time we shall produce a copy of those for tender as well.


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MR MORRISSEY: But I don’t have them to hand.

COMMISSIONER WHITE: We will wait till we get there. Thank you.

MR MORRISSEY: Finally, the issue of the outstanding statement. We did not tender before lunch a particular statement of yours based upon the desire to review that statement and make comments about it. Could we please have up on screen the statement of Salli Cohen dated 23 March in response to Mr Middlebrook. That, I think, is number 5 on the list provided to the operators. Do you have that in front of you, Ms Cohen?---Yes, I do.

You made that statement back on 23 March?---Correct.

But have you produced a further statement which clarifies things that you discussed there in light of further documents that you’ve seen, a further document that you’ve seen?---Today, yes, I did.

Today. Now, did you then produce, having seen the subsequent document, a further statement on 30 March 2007 which you’ve provided today?---Yes, I did.

And does that explain matters and clarify matters that are contained in that aforementioned 23 March statement?---I believe it does, yes.

Commissioners, I tender the new statement dated 30 March – sorry – is the statement of 30 March true and correct and accurate?---Yes, it is.

I tender that document, and may I also tender by way of annexure to that document the original statement to which reference has been made, the one that was up on the screen.

COMMISSIONER WHITE: Well, you can call it that if you like but the two of them together will constitute exhibit 222.

EXHIBIT #222 TWO STATEMENTS

MR MORRISSEY: Can we now return back to the issue of the Cabinet submission which we’re tracing through, and we will spend some minutes on it now just going through that Cabinet submission and the various matters that – the course that it took. I had taken you before lunch to the email chain that you had annexed to yourself statement between you and Mr Middlebrook. Returning to that issue now, this is in September of 2013. You had given Mr Middlebrook your opinion in discharge of your duty to provide frank and fearless advice that the detention system needed a complete overhaul; is that correct?---Yes, I did.


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And at that point you were telling him that the existing Cabinet submission which was at that stage pitched at an $11 million amount was not sufficient; is that correct?---Yes, it is.

Now, you’ve seen that the reply that came from Mr Middlebrook – before lunch I was asking you questions about some parts of it, but do you agree that he said there – he said – the last thing he said:

Also it may be of benefit to see if we can recruit a TA for recreational activities and run the kids in to exhaustion so they sleep at night in lieu of getting into mischief.

Do you see that there?---Yes, I do.

I am asking you to make a critical comment about a superior. I know that’s something that’s not always appropriate. Do you agree that was a fatuous and unhelpful suggestion? Just read the last paragraph to yourself and see if you agree to my characterisation of it.

MR O’MAHONEY: I really think, Commissioner, that might be a question properly put to Mr Middlebrook.

MR MORRISSEY: It will be.

COMMISSIONER WHITE: Yes. I think it’s alright to do that, but you might wish to reframe the expressions. You may not wish to adopt Mr Morrissey’s description of it, but you might have something else that you might want to say about it using language that you’re more comfortable with?---Thank you, Commissioner. I think there is a reasonable position that the Commissioner was putting forward that the detainees needed more activities, and I think when we talk about teenagers and being energetic, I don’t think that in itself is unreasonable to say let’s make sure they’ve got really full days and at the end of the day they really, you know, want to have a good sleep. However, it probably falls short of what I was trying to achieve and the information that I was – or my concerns that I was trying to convey to the Commissioner.

Would it seem that it trivialises a little the deep concerns that you had expressed in a fairly comprehensive way by just focusing on something like that?---It certainly doesn’t provide the comprehensive response that we needed.

Thank you.

MR MORRISSEY: Subsequently to that, did you set up a ministerial briefing with Mr – with Minister Elferink? Perhaps if we could have up on the screen supplementary tender bundle 262 and have that at page 4066. Now, do you see this is a heavily redacted document in front of you here, but does this reflect a


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communication to the Minister?---That’s a flash brief communication which would have happened after an incident.

Okay. Thanks. And does it refer to – sorry. I referred to it as a ministerial briefing. I’m sorry about that. Is a flash brief not a form of ministerial briefing?---Yes, it is, but it has got a particular name. So a Cabinet submission is a ministerial briefing. A flash brief is a different type.

Yes. Thank you. So a flash brief is a subset, and that’s – okay. So we should refer to that as a flash brief. Thank you. So, anyway, what has been reported is various things that occurred by way of male detainees getting up into the roof and a variety of things that followed after all that. Now, do you recall what the Minister’s brief response to that brief was?---May I – is the date – is this the first incident in September.

9 September?---September.

It’s 9 September, I think ..... could be there but - - -?---It’s 2013. I do not recall the Minister’s response to this particular brief.

Let me show you another document then. Commissioners, I tender that document.

COMMISSIONER WHITE: Exhibit 223.

EXHIBIT #223 SUPPLEMENTARY TENDER BUNDLE 262

MR MORRISSEY: Can we go to STB250 and at page 4101. Okay. So you’ve got there a response from the Minister at that point. That’s on the Sunday, 8 September, and it’s a one liner really, isn’t it:

Are criminal charges being pursued?

?---That’s correct.

Do you recall any other inquiries that he made, if not in that rather terse email? Did he make any other inquiries or ring you and say – ask any questions as to why the detainees might be behaving like that?---I don’t recall that and I don’t believe he did.



EXHIBIT #224 EMAIL FROM THE MINISTER


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MR MORRISSEY: You were aware at that time that, broadly speaking, the government of the day was committed to what could be broadly described as a law and order agenda?---Yes.

Very well. Thank you. Now, over the next week did work continue on the Cabinet submission?---Work would have continued on the Cabinet submission until it needed to be circulated which is the part of the – well, in this instance a budget Cabinet submission process.

Go on. Sorry. I talked over you. I’m going to step you through - - -?---Yes.

- - - a series of notes and references, but we just have to go to them one by one. Can we please have annexure SC5 to Ms Cohen’s statement, the first statement, at page 0630. You’ve looked at this already at some other section. Here, what – so we have an email here that is sent by you, it appears, to Mr Caldwell where you appear to have sought to dig up some materials from 2013 by way of concept drawings for the original update, planned update to Don Dale. Do you see that? Hang on. That’s in a different – sorry. Just let me withdraw that question. That comes in the next document. Just excuse me here. So – sorry. I understand. Sorry. Here – I apologise. So halfway down do you see there:

Following our meeting I’ve done some work on the .....

I’m trying to pick up on the – if it was a justice law reform stuff:

The fact that we will be going back.

Do you mean by, “We will be going back”, means, “We will be going back to make a further request for funds”?---That may well be the case. I’m – I can’t confirm that explicitly, however. It does appear that we will – we will need to go back.

Yes. If you can’t recall what you mean by that, that’s fine, but it looks as if that’s what it means, doesn’t it?---It does appear to.

Can we take that from the screen. Can we go to tender bundle 75. This is the bit I bumbled into before. So if we have – sorry, can we just – we have – perhaps we could try supplementary tender bundle 75. It may be a typo by us here. Yes. Can we go down to the next page, please. So do you see here this is something by Nicole Duvries? Who was she?---Nicole worked in the area responsible for the management of all the facilities.

Okay. Was she providing to you some materials that you had asked to be sourced back from the original Cabinet submission back in 2013?---That appears to be the case, yes.

It makes reference to various things that were seen at that time to be necessary; is that right?---Yes, it does.


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In particular it had a new residential girls’ wing?---Yes.

And suggested some changes that needed to be made for:

The better provision of the facilities to suit a modern juvenile centre.

Is that correct?---Yes, that’s correct.


COMMISSIONER WHITE: That is exhibit 225.

EXHIBIT #225 TENDER BUNDLE 75

MR MORRISSEY: Thank you. And that was STB75. To STB251, this is another document in the chain of things that was being looked at in that time. So do you see up the top there there’s a question posed? It’s in the blue – right on your screen:

Quick question. Do the new proposals still fit within the $10 million ballpark on or do I need to ask for more money in the Cabinet submission?

That’s a question posed by you?---Yes.

How did it come to be a $10 million ballpark. We had been at 11 million. Do you remember how it came to be 10 at that point?---And I believe this is in my statement as well. Normally what happens with a budget cabinet submission process is that there are a number of discussions that are held at the senior level, and by senior I mean with a Chief Executive of the agency and the Minister and often with the Department of Treasury and Finance or its equivalent of the day. As agencies prepare budget Cabinet submissions they get a greater feel for what is likely to be accepted and often will try and adjust that without pre-empting a discussion by Cabinet. So I believe that the Commissioner would have advised me that our initial ask, as in our initial bid for funding, was potentially too high, and so that we needed to make sure that it was in a financial figure that would be perhaps attainable within a budget Cabinet decision, stacked up against all the other budget Cabinet requests.

Yes. Okay. Now on 16 September 2013, there was an Executive Directors’ meeting. I wonder if we can have on the screen STB252. These are minutes of the meeting, and do you see here at 1.1, a reference - - -

COMMISSIONER WHITE: 2013, Mr Morrissey, not ’15.

MR MORRISSEY: Did I say – I apologise. Thank you.

COMMISSIONER WHITE: I thought you said ’15.


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MR MORRISSEY: Well, it could be so, and if so, it is 2013. So there we have a reference to Ken discussing the best options for getting the recent Cabinet submissions up to Cabinet. Now, just on that, there is a great deal of work which I won’t ask you to explain now because it’s evident – there’s a great deal of work that goes into getting a submission into shape to be submitted to Cabinet?---Absolutely.

One of the hopes is that you will put it into as realistic shape as possible so it has a chance of succeeding?---Chance of it succeeding, chance of all Ministers understanding, and a chance of it being financially attainable.

In this case it was said that it was critical that the – it was agreed not to hold off the youth justice infrastructure submission until budget Cabinet time as it’s too critical; is that correct?---Yes.

Thank you. I tender that document.


EXHIBIT #226 STB252

MR MORRISSEY: Now, at that point it was – the fact of the matter is that you brought to the attention of Mr Middlebrook and all the others the review of the Banksia Hill riots; is that correct?---That’s correct.

And you noted that there had been warning signs identified for Don Dale which are similar; is that correct?---Yes, it is.

And it’s also noted that a strategic review of Don Dale is now under way?---Yes.

Now, can I just say this: first of all, are you satisfied that you brought it with sufficient clarity and gravity to Mr Middlebrook’s attention that there was – there were very concerning parallels between the preconditions of Banksia Hill and the current prevailing conditions at Don Dale?---Yes, I do believe I brought them with sufficient clarity, and the Commissioner clearly understood that as well from reading the Banksia Hill summary.

I just ask this: I see a strategic review of Don Dale is under way. May I just ask this: what was the need for a further – for a strategic review of Don Dale at that point when the budget submission that you were putting was seen as critical? In other words, wasn’t it dangerous and delaying to engage in yet another strategic – or it’s not yet another, but a strategic review of Don Dale at that point?---May I just ask you what document you’re looking at because what I have on the screen doesn’t reflect that.


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It’s page 2 of the current document. Could that be – yes. It’s at point 4.3.1?---Thank you.

Just to be clear, that’s a strategic review which was ultimately pursued by Mr Caldwell; correct?---Yes. And we had an officer focus on that. That became his full-time focus and duty to deliver that.

Okay. Well, do you see – can I just ask you this: as a non-public servant, but just – do you see that engaging in a strategic review might dilute the need for pressing budgetary decisions?---I appreciate that position. I think, however, what was really important was the summary review of the Banksia Hill incident certainly raised flags for us. What we needed to do in a manner that was acceptable and could be readily understood but couched in the terms of the Northern Territory – how did those flags, if you will – were they exactly the same in Don Dale and in Alice Springs? And what other potential issues were there to face? So I think one of the things that is important for us to do as public servants is to be able to clearly explain to in this instance a budget Cabinet sitting why it is specifically pressing in a Northern Territory environment to go, with all due respect to the Banksia Hill review, but with only a review from another jurisdiction would not carry the weight that we needed to demonstrate that, not only were we experiencing similar challenges as Banksia Hill, but if we didn’t approach them in a manner that was strategic and appropriate, we could potentially end up in the same scenario as Banksia Hill.

That review that we’re referring to was ultimately finished only in April the following year; is that correct?---Yes, I think it was completed within a – roughly a six-month period.

Yes. And the Cabinet submission in its ultimately very attenuated form was submitted in March of that year; is that true?---That’s correct.

Alright. Could we please go to STB77. So this – do you have in front of you now the plan for that review?---Yes. It’s the project plan.

Who decided to launch that project?---I decided to launch that project but with approval from the Commissioner.

Well, can I just ask you about that approval. When you say approval from the Commissioner, did he press you not to do it but to get on with the Cabinet submission, or did he say this is a very good idea?---I don’t recollect the Commissioner saying to me not to do it and to only focus on the budget Cabinet submission.

Was it his idea?---To do this review.

Yes?---I don’t believe so. I believe I took that idea to the Commissioner and the Executive Director group.


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Alright. Thank you. Sorry. Okay. Could we just scroll down, please, to the next page, a further page over. Alright. Now, do you see there highlighted in various colours a variety of criticisms?---Yes.

And issues to be addressed?---Yes.

Now, whilst a review might be desirable, those problems were not potential problems. They were real and existing problems at the time when this review was commissioned; is that correct?---That’s correct.

Okay. And in particular at the bottom there’s a lack of operating philosophy?---That’s correct.

“See operating procedures and policies.” Did you think – was it discussed that commissioning the review might delay dealing with the problems?---I think we had started to tackle some of the issues as best we could. However, going back again to the need to the budget Cabinet submission, we had to be appropriately resourced to be able to do all the things that we needed to do. So, while there was a focus to improve all of these things, we also needed additional resources to be able to fundamentally tackle each issue, sometimes independently of others and sometimes in tandem with others.

But this review now began to stand in the way of getting those resources, didn’t it, or at least the timing of the review began to be a delaying factor in getting the resources that were so badly needed. Do you agree with that?---I don’t believe I do. I’m not quite sure I understand your question.

Well, taking appropriately funded action in respect of the matters that are disclosed on that page that is before you was not likely to occur whilst you had this review under way. Do you agree?---I think you can approach and start to resolve issues to a certain point while also building further evidence as to why it’s important, and I think I referred earlier this morning – one of our challenges was doing – was running the business and then improving things at the same time.

Yes?---So again this was – was building evidence if you will for why this was really important, but it did not completely dilute our efforts to start to make those improvements.



EXHIBIT #227 STB77 REVIEW PLAN


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MR MORRISSEY: I just want to move now to another measure that was taken. Given your background with the Carney Report and given what you’ve said before lunch about the delayed and deferred implementation of the Carney Report, you commissioned the Dolphin Report; correct?---That’s correct.

It had a number of useful and significant findings, one being highlighting the staff’s concern with failing infrastructure. That’s a matter you point out in your statement?---Yes.

One other very valuable – I’m sorry. I shouldn’t put a value comment in there. One other significant component of the Dolphin Report was the extensive eliciting of quotes from staff at the detention centres; is that correct? In other words, the dolphin report contained a great deal of summarised - - -?---Yes, it did.

- - - complaint and wisdom from the staff on the floor?---It did.

Could we please bring up annexure SC10 to Ms Cohen’s first statement. This is a document that you know well and you’ve provided as an annexure here. Throughout that could we please go to page 0054. I’m going to take you to a couple of typical complaints. There are many complaints in here. Just have a look now. Refresh your memory. You recall providing this document and you’ve seen it before?---Yes, I have.

Is that correct?---Yes.

What you’re seeing here is a summary in plain English of some of the complaints that are made by individual people; correct?---That’s correct.

And sometimes the complaint might reflect a complaint that’s very common, other times it might be a complaint that’s made by one or two people?---That’s correct.

This document wasn’t purporting to provide any statistical analysis of that. It just set out the complaints?---That’s correct.

But, nevertheless, complaints that were absolutely consistent with your perceptions of the problems were made on a repeated basis by staff; correct?---Yes.

So whilst you had generalised knowledge in September 2013 of what the problems were, when you got the Dolphin Report you had specific validation of those concerns from on the floor of the centres; is that correct?---Yes, it is.

Now, I’m really not proposing to take you through it, but you’re familiar with those comments and you agree that they touch upon the good old problems, training, resourcing, rostering?---Yes, I do.

And they make other reference to the plight of the workers who were stressed, tired and confused; correct?---That is correct.


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And morale was low?---Yes.

And a variety of bad practices of staff were pointed out which I won’t take you to all of but you’re familiar with. Thank you. Well, I tender – no. That has been - - -

COMMISSIONER WHITE: It’s there, yes.

MR MORRISSEY: My apologies, thank you.

So that was a – the totality of that report which you diligently and speedily, I should say, commissioned, that contained really a scathing account of the working conditions for staff and detainees alike. Do you agree with that?---Yes, I do.

And it supported your view that a complete overhaul was required, not just infrastructure, but staff and training?---Yes.

Now, when was it that you advised Mr Middlebrook – that you provided that report to Mr Middlebrook?---I’m not sure if I have a copy of an email that would provide that date.

I’m not sure that I do either, Ms Cohen?---I don’t believe that I’ve got one in my statement.

If you can’t point to a specific, are you able to identify for the Commissioners how it’s – do you recall how you communicated it to him?---I had very regular communication with the Commissioners – with the Commissioner. My apologies. We met regularly. We had the EDG meetings, so I would have given him a copy of that report soon after I had received it.

Alright. What was Mr Middlebrook’s response to that report?---For the Commissioner, this was part of our response to Mr Stephen Dunham’s initial request that we validate that the nine recommendations from the Carney review were the right starting point for the work on the new Youth Justice Framework, and that confirmed to the Commissioner, as did the responses that we received from the non-government organisation sector, that the Carney review was the right spot to start in developing the Youth Justice Framework.

Alright. But it had a further value, didn’t it? It completely backed up your Cabinet submission, correct?---Yes, it did.

It couldn’t be stronger. By this stage wasn’t it the case that despite that, despite the Cabinet submission and this supporting material, what had previously been a $10 million ballpark was in the process of being very significantly wound back; is that correct?---Yes.


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For one example, you’ve referred to this in your statement, but you noted that Mr Middlebrook had requested at some stage late in September that the figure of 10 million be brought back to the eight million ballpark?---Yes, I do recall that now.

I think you’ve made mention in paragraph 48 of your statement that Mr Middlebrook directed you from time to time on occasions to reduce the value of resources requested. Is that one example of that?---Yes, that would be one example.

Can you think of the other one or another one?---Linked to the budget Cabinet submission was certainly around the staffing model that we were trying to develop.

Alright. Could we please have STB79 up on the screen. Now, is this an email from Mr Caldwell?---Yes, it is.

And here do you have – does this version of the Cabinet submission state that:

Following direction from the Commissioner the $2 million bid for the staffing model has been removed and will form part of a future submission.

?---Yes, that’s correct.

So is that another example?---That’s what I was referring to just now.

Alright. Thanks. The subtracting out of the $2 million bid was a very significant lowering of standards or lowering of the ambitions of the Cabinet submission; correct?---Yes. We would not have been able to achieve – we were not able to achieve what we had hoped to.

Is that a recognition of political reality? Do you say you weren’t able to achieve it because the political arm was not prepared to grant it, or the executive was not prepared to grant it?---It’s difficult. I can’t comment on what a budget Cabinet discussion would have involved.

Okay. I won’t ask you to do that. Can I ask you to deal with it differently. Did Mr Middlebrook – did you meet with Mr Dunham? Did Mr Dunham tell you anything about the - - -?---In relation to this budget Cabinet submission.

In relation to this budget submission?---I don’t recall having direct meetings with Mr Dunham about this submission. My discussions would have been at the most senior level with the Commissioner.

Alright. Did the Commissioner tell you what sort of pushback or what sort of guidance – guidance or information he was getting from Mr Dunham on behalf of the Minister or from the Minister himself as to the potential size of any Cabinet submission that might succeed?---In general terms, it became clear to me that we were not – we were not able to pursue what we had hoped to pursue. We had to reduce the number significantly, the number as in terms of the dollar asked, as it was


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unlikely that we were going to be able to achieve that, and that’s what we were directed to do and that’s what we did.

Okay. I understand that and you put that in appropriately passive terms, but can I just ask you to revisit it as best you can from your memory here in the Commission. What did Mr Middlebrook tell you he was told? Was he told – let me suggest something, you tell me if that’s right or wrong, and if it’s wrong, tell me what – was Mr Middlebrook told, “Get real. You’re not getting anything like that sum of money”?---I don’t know what Mr Middlebrook was exactly told by Mr Dunham or the Minister at the time. However, it would not surprise me that they would have had such a frank discussion.

Yes, alright.

COMMISSIONER WHITE: Was your office close to Mr Middlebrook’s office during this period?---As in physically close.

Physically close. Were you in the same building?---We were in the same building on the same floor.

Alright. Thank you.

MR MORRISSEY: I tender that document.


EXHIBIT #228 EMAIL FROM MR CALDWELL

MR MORRISSEY: Thanks. Now, it’s the fact that no substantive changes to staffing and training really came about until after the tear-gassing incident into the future on 21 August 2014; is that true?---I believe that’s, yes, the case.

Alright. Now, could we just note that following that tear-gassing incident – I just want to have on the screen STB259. This is some minutes – we’re jumping forward here. I’m going to come back to the chronology, but it’s just something you said about that. If those minutes could be provided, and could we have – and we need to go over to the page that contains dot points 4.3.3. Keep going. Next page. Thank you. Stop there. Do you see in these minutes you noted the contrast – this is in the wash-up after the tear-gassing incident?---Yes.

You noticed a contrast between prison staff and youth justice staff, and what you noted was youth justice staff had inadequate uniforms, training, and facilities available to them and feels like it something that needs to be addressed by the agency ASAP?---Yes.


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Although that’s not quoting you directly, do you agree that you had been telling them that all along?---Absolutely. There was a very different standard or recognition, perhaps is the better term, of the work of Youth Justice Officers to those of the custodial or prison officer staff.

Thank you. I tender that document.


EXHIBIT #229 MINUTES

MR MORRISSEY: Now, can we just – just to conclude this issue. Now, we’re coming back to the time when the Dolphin Report was presented. When the Dolphin Report was presented, and you read the comments of staff, the many comments of staff as to the various woes on the floor, did it occur to you at that point that you should reiterate in very forceful terms both to the Commissioner and, if needs be, directly to the Minister that there needed to be budget action immediately? I appreciate that you have gone through the steps that have been described, but in a situation where conditions appear to be more acute than previously, do you have a duty to go outside of that polite structure and to confront your superior and tell them, to adopt a phrase that we’ve seen from Mr Middlebrook, to tell them, “You’re dreaming. You need to face this. You’re not grappling with it”?---I had a number of very frank discussions with the Commissioner and less so with the then Minister, but very frank about the situation that we were facing in both detention centres, and I reiterated my position regularly at the Executive Director group meetings and wherever it was possible to emphasise we were operating in an environment that was totally unsuitable.

Do you agree that, in essence, the $10 million figure, ballpark figure, was off the table and instead a Berrimah refurbishment option was on the table late in 2013?---May I just clarify what you’re asking there. So you’re saying do I belief that the Berrimah option came earlier than the decision from the budget Cabinet?

No, I wasn’t trying to put them in order there, but we can. Okay. I accept your point. But when do you say you were aware that the $10 million budget claim was doomed to fail?---Again, I would need to refer to the emails that I provided in my statements, but I think following – so September, we’re looking at this budget Cabinet submission. We’re reducing it. It became pretty clear, I think, prior to Christmas that we weren’t going to – to get the funds that we needed and we needed to find different solutions and options for budget Cabinet to consider.

Alright. So when was it that you recall – and again it’s fine to point to a general time period here. When was it that you recall that refurbishing the old Berrimah facility was an option?---Yes. It’s likely that would be, as I say, just prior to Christmas or early in the new year post the Christmas period. We would have had to have start


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working on that memorandum to adjust it to provide us sufficient information for what the then Minister circulated as a memorandum to his Cabinet colleagues for consideration. And the Berrimah option, if I can call it that, was part of that memorandum.

Alright. Was it Ken Middlebrook’s habit at that time to refer to the proposed costly works, if you like, the $10 million option, as a costly project?---It was an expensive project if you’re looking at - - -

I accept that?---Yes.

What I’m asking is did Mr Middlebrook so describe it?---I don’t recall him explicitly saying that or not.

We have a reference to a Caldwell email in your statement where it said:

At Ken’s request Salli and others and I toured the current DDC site today with a view to identify what parts could possibly be utilised by youth detention as an alternative to costly new build or refurbishment options at Don Dale.

That’s Caldwell’s words, not Mr Middlebrook’s and not yours, so I was asking you really whether you could that that was - - -?---That’s reasonable, I believe.

Did you also look at Ura House?---Yes, we did.

In doing that – there’s in your statement – annexed to your statement – I won’t bring it up now. If you need to look at it, you can, but in that context you wrote to Mr Caldwell in mid-November, 13 November actually. Commissioners, that’s SC6 if it needs to be referred, to but I’m not going to:

If advice is provided by CO Corrections about security modifications for Ura House, we will need to balance that with Ken’s drive to manage better through stronger, more appropriate staffing models than relying on infrastructure and equipment.

Now, by mid-November was it Mr Middlebrook’s express position that the way to deal with the difficulties in the system was not to expect any infrastructure, but to develop stronger, more appropriate staffing models?---Yes. Mr – the Commissioner was very keen to see us operate in a manner that had professional equivalence to that of the adult correctional facilities.

Is that the context in which Mr Sizeland was employed?---No.

No. You’re aware of what has been said about Mr Sizeland and his management style when he was – after he was appointed?---In terms of this Royal Commission.


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Yes, in terms of this Royal Commission?---I’ve heard of some things. I haven’t heard all the witnesses.

But you’ve heard references to Jimmy’s Boys?---Yes, I have.

And the Don Dale Turtles?---I had never heard of the Don Dale Turtles prior to Mr De Souza’s testimony.

Going back just a step, you recall that I asked you to be critical of – perhaps I shouldn’t have done that – but I asked you to be critical of Mr Middlebrook’s response in an email where he said, “Let’s run the boys around, get them tired.” In that email he also referred to using more prison officers to beat up the security awareness and so on. That stronger, more appropriate staffing models, did that appear to you, as it was expressed by Mr Middlebrook, to connote a tougher regime using more prison guards and more prison guard approaches to security?---Definitely in terms of security. There had been a number of incidents, and the Commissioner, I believe, was far more comfortable with the training of the prison officers to be able to manage that environment better than what the Youth Justice Officers could, given that they hadn’t had an equivalent training and the security of the facilities was being compromised.

In all of those discussions there doesn’t seem to be any reference to the measure to improve conditions in the prison, including security, the measure of better engaging with the children, reducing the – the harshness of the regime for those who perhaps don’t learn from harshness, and providing them with a more constructive environment. Now, I appreciate at a high level you did that all the time because you were saying, “I want better training and better staff”, and so on. But in specific terms I’m not seeing any reference to that. Can you point me to where that was raised, that perhaps we should turn the temperature down on these children?---From the Commissioner and - - -

From you and the Commissioner?---Certainly from me I think that was my modus operandi throughout the period of time that I was Executive Director. I believe with the frustrations that built over the period of time that I was Executive Director with the number of incidents we had the Minister and – the then Minister and the Commissioner had a different view that we needed to have a much – I will use the word tougher environment to bring back some – to bring back some control to the detention centres, and the – our responsibility in relation to community safety was certainly, I think, the driving principle of those actions.

Yes. Could we please now move to STB255 and we want page 0597. That is the one that’s on there. Thank you. Okay. So this is a document, an Executive Directors’ meeting document and at – on 6 January 2014. Does this record the options that – could we go to page 3 of that, sorry?---May I just query the date on that document.


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COMMISSIONER WHITE: Do you think that’s a wrong date on it?---I think the date is incorrect only because - - -

MR MORRISSEY: The 11.2 is still there?---No. My apologies. No. Sorry. I’m thinking of – no, 2014. That would be correct. My apologies, I was confusing my leave dates. That’s correct.

So January 2014?---Sorry. Yes.

So there we have it. So alright. Do you see there that the – you’ve made reference – it all looks like almost a nostalgic reference to the estimate of 11.2 million, and then it’s followed by this comment:

Salli has advised that she will liaise with Frank and Nicole for the estimated costs on the renovation of Darwin Correctional Centre

?---Yes.

Is that the estimate that ended up being about $800,000 and was?---The – yes. And so we were given approval to use existing funding for just under $800,000, that’s correct.

I think you’ve described that, and, although others may question you about that, I won’t grill you about it if you’ve noted that that happened. I tender that document.


EXHIBIT #230 EXECUTIVE DIRECTOR MEETING DOCUMENT

MR MORRISSEY: Could we please go to supplementary tender bundle 236. This is an email from Mr Middlebrook. Now, what was the position occupied by Greg Shanahan at that time?---So this is following the circulation. I explained that budget Cabinet submissions and Cabinet submissions are circulated to other agencies for comment. That’s important because agencies need to brief their Ministers so that they’re appropriately positioned to discuss the Cabinet submission before them.

I won’t go into the details of what was being proposed there?---Yeah.

But it’s simply the state of play of Mr Middlebrook at that point. Do you see he makes the comment that this – the move to a refurbished Berrimah facility would provide:

An opportunity to create a youth justice precinct over an extended period while relieving the government of committing to substantial short-term expenditure on Don Dale and Alice Springs.


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Do you see that?---Yes, I do.

That accurately captures what we were just speaking about?---I believe so.

I tender that.


EXHIBIT #231 EMAIL FROM MR MIDDLEBROOK

MR MORRISSEY: We’re nearly through the unfolding of the Cabinet submission. Do you recall when it was that a version of a submission was, in fact, lodged for Cabinet’s consideration?---The Cabinet memorandum I believe, and I believe it’s in my documents, was in March that it was lodged for consideration.

Was it withdrawn? Was it lodged and then withdrawn at some point?---The final memorandum, I don’t believe so. I believe there was a decision that was made on the memorandum.

Alright?---So the initial Cabinet submission was withdrawn and that was reduced to – my apologies – to the memorandum that was finally lodged.

Yes. Alright. There was a change of - - -

COMMISSIONER WHITE: That’s not unusual for a fate. I mean, it’s not always happy, but memorandum will often go in lieu of a Cabinet submission, won’t it, or sometimes?---Sometimes. It’s not preferred or best practice. You – the best practice will be to provide a full budget Cabinet submission that gives the detail that is warranted. It has to be succinct but gives the detail that’s warranted for such an important decision to be made.

MR MORRISSEY: Just to pursue Madam Commissioner’s question, is the fact that this submission ceased being called a Cabinet submission and became a memorandum because it wasn’t actually seeking any new money at all; it was simply seeking a redirection?---It was a redirection of funding, that’s correct.

So it only had to be called a memorandum. Does that have an effect on the way it’s discussed in Cabinet, if it’s a mere memorandum?---So if I can just clarify. So budget Cabinet – normally it is around the budget, so there will be dollars associated with that, and Cabinet submissions don’t always, but often will, have a dollar value associated with it, but it might be asking Cabinet to make a decision or give a particular direction. Certainly, in a budget Cabinet consideration having a memorandum that’s not seeking funding, it potentially would not have the same status as a full-blown Cabinet submission.


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Your Honours, I offer for tender two documents that are in the tender bundle. They’re part of the history here and it’s apparent where they fit. I wasn’t going to take the witness to it, but STB265 I offer for tender. That’s a ministerial memo.


EXHIBIT #232 MINISTERIAL MEMORANDUM

MR MORRISSEY: And STB256.


EXHIBIT #233 STB256

MR MORRISSEY: May we have on the screen STB290, please. Here we have a letter directed – if you go down the page a bit, you will see that you have communicated on 12 March to Mr Middlebrook. Now, this was – this is an email. It doesn’t concern directly our detention issues, but it concerns what appears to be a threat to an area that you were interested in preserving concerning family responsibility centres. Does that ring a bell now?---Yes, it does.

I’m not seeking to talk about indirectly here, but I just wanted to point out to you the third paragraph there where you say this:

Hooray they cry. YJOs have been operating on a flawed business model that’s resulted on decisions based on what we can squeeze through or rely on the remainder of the Department to fund as we’ve not been appropriately funded, and I acknowledge this has been for a number of reasons. As a consequence, we have not strived to reach best practice, but rather operated on a let’s get by approach.

Now, although you are dealing with a specific issue, that was a general – what you’ve said there represented a general concern that you had about the attitude, if you like, of the executive branch of government to the sensible funding proposals that you were putting forward?---Yes, it is. I can’t see the paragraph you read out, but I do recall it from reading it this morning.

Yes. We will just make sure we – if you just go to the next page, please. We will just make sure we haven’t put the wrong one in front of you here. Yes. It’s the top of that page?---Yes.

Do you see that now? Thank you. Yes, I tender that.


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EXHIBIT #234 EMAIL FROM MS COHEN TO MR MIDDLEBROOK

MR MORRISSEY: Okay. Now, without – I will offer also for tender STB265 – I think I might have. We have tendered 265 already. We have tendered that.


MR MORRISSEY: Anyway, the Cabinet submission, as it ultimately went up, sought the redirection of Cabinet funding of 796,000 from drug and alcohol places to enable one-off capital works at the DCC Berrimah to make it useful as a youth detention centre; correct?---Yes, that’s correct.

And also 1.3, other funds to pay for the $1.32 million shortfall of personnel funding and 200,000 shortfall of centre operation; is that correct?---To be funded from within existing government.

From within – correct?---That is correct.

Thank you. Now, it was apparent to you that Mr Middlebrook appreciated that there was a really significant shortfall in fundamental workplace skills and knowledge in the workforce in youth justice?---Yes, that’s correct.

He expressed that to you at various points. He also expressed it in a ministerial memo at one point that you’re aware of that he sent. Perhaps we could have that on the screen. STB265 is has been tendered now. What was the exhibit number?

COMMISSIONER WHITE: That’s exhibit 232.

MR MORRISSEY: And can we go to page 2478. That is on there. Hang on, that’s not right. 2750. I apologise. 2750 is the page we need. So here you will see that among the various points made by Mr Middlebrook, he highlights that:

Northern Territory Youth Justice Officers receive an average of six to eight days offsite training that does not provide the fundamental workplace skills and knowledge required. This is significantly below Australian training standards as demonstrated by the 30-week program in New South Wales and the one-year probationary period.

Now, we see that’s down the bottom there. What I’m putting to you is Mr Middlebrook was engaged and knowledgeable about the gap, the shortfall in training of Northern Territory officers as compared with those elsewhere?---Yes.


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And that was a matter you discussed with him. It doesn’t surprise you to find it in the Cabinet – in his briefing note?---No.

Alright. Thank you. Now, can I move to the next issue. Thank you, so I think we’ve now gone through that Cabinet process. So by March 1940 - - -

COMMISSIONER WHITE: Sorry. It feels a bit like that, I have to say.

MR MORRISSEY: By March - - -

COMMISSIONER WHITE: Sorry, Mr Morrissey. It probably feels more.

MR MORRISSEY: March 2014, you had been in that role for about six months?---Yes.

You had been warned of some of the structural difficulties that faced youth justice at that time?---Yes.

And you had had those warnings confirmed for you by a level 1 incident within your first month of being there?---That’s correct.

You had the benefit of a series review into a crisis detention setting in another jurisdiction, that being the Western Australian one?---Yes.

You told Mr Middlebrook that something serious was on the horizon and money was being sought, that the money being sought, that being the 10 to 11 million, was not sufficient in itself to address the concerns that you have; correct?---That’s correct.

At first, he appeared to be supportive of the Cabinet submission; is that right?---Yes, I believe he was.

Something changed. Do you know what it was that changed with Mr Middlebrook or did you just notice that, in fact, he had ceased being supportive?---When you say that something changed - - -

He ceased being supportive of a Cabinet submission that asked for 11 million; is that right?---My assumption would be that he had received direction for that amount to change. That would be my assumption.

Alright. Just to be clear about that, he didn’t tell you that in so many words. Certainly, in writing he didn’t tell you that, correct?---No, I don’t believe so.

Do you have a recollection of a conversation where he told you, “The Minister has told me forget it”?---It would have been along the lines, “Sal, we’ve got to change this. We’ve got to drop the dollars.”


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But he didn’t have to tell you the terms in which he was told by the Executive?---No, he’s not obliged to do that.

He just had to come back to you with - - -?---That’s correct.

Alright. Thanks. You were familiar at that point with the fact that the Minister was running what was described as a law and order agenda; is that correct?

COMMISSIONER WHITE: We’ve had that evidence. Thanks, Mr Morrissey.

MR MORRISSEY: Yes, if the Commissioner pleases. Alright. Thank you. When Mr Sizeland was appointed, was that in February of 2014?---That’s quite likely, the date. If you’ve got his recruitment file, the date would be correct.

That’s okay. Now, just in respect of that, when was it is that Mr Rainbird ceased to be the superintendent?---When Mr Russell Caldwell took over as the director he had a dual role, if you like, director in terms of my 2IC and being superintendent of the detention centres. So I started in 2013. It would have been prior to Mr Sizeland being appointed as one of the assistant general managers.

Now, was Mr Caldwell appointed to be superintendent when he first took up that role, or was he appointed later on?---It came to our attention much later on that, while we had given Mr Caldwell that title, the appropriate instrument had not been signed, and that was identified by one of the lawyers at the solicitor for the Northern Territory; something of which both Mr Caldwell and I were – we were unaware that that was necessary.

When did you – when were you made aware that he had not been appointed by instrument as the superintendent?---I would have to refer that question, if that’s possible, to the lawyer who identified it. I believe it was during a period where Mr Caldwell may have been asked to provide evidence at a court case, and that’s when the – the lawyer who was looking after Russell from the solicitor for the Northern Territory said, “Hang on a minute. The appropriate instrument hasn’t been signed here.”

May I just ask you this: is it possible for you to locate that? It may be that there are materials that are not relevant to be disclosed or shouldn’t be disclosed, but in terms of the date of that are you able to ascertain that by looking at the records?---If you have a record, I should be able to look at it and that record.

MR O’MAHONEY: We will undertake to get ..... Commissioner.

COMMISSIONER WHITE: Can you do that Mr O’Mahoney. Yes. Thank you. I think we could more properly ask Mr O’Mahoney’s office because I suspect that there will be a record in the Solicitor-General’s office of this advice.

MR O’MAHONEY: We will try and turn that up as quickly as possible.


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You needn’t do that, Ms Cohen. Someone else will do it for you.

MR MORRISSEY: I’m apologising to all those who I’m coughing to death. You don’t have the precise date of that, but can you give us a general sense of when it was? Was it before or after the tear-gassing incident?---I’m not – I think it would be best if I may ask for those papers to be found because I’m really not sure.

That’s okay. You won’t be held to this, that’s alright. I won’t press you about it. But for that period, in any event, you had somebody exercising the superintendent statutory powers who didn’t have those powers?---Yes. That came to our attention, yes, it did.

And you appreciate that - - -

COMMISSIONER WHITE: Didn’t Mr Caldwell give some evidence about that, Mr Morrissey?

MR MORRISSEY: He did at page 2106, but he was – it doesn’t appear that he gave the specific dates, Commissioner. You will see at the top it doesn’t like he gave dates as to when that happened.

COMMISSIONER WHITE: Does he give the month? I’ve got a feeling that October might be mentioned of that year, but that may be a poor recollection by me.

MR MORRISSEY: Would the Commission just excuse me a moment.

COMMISSIONER WHITE: Don’t waste any time. Someone else is going to do it anyway.

MR MORRISSEY: Yes. Alright. Thank you.

So just in terms of that period of time, I diverted there, but I want to come back to the situation with Mr Sizeland, early in 2014, you – Mr Sizeland was appointed, and can I just suggest this to you: you had very, very frequent contact with Mr Sizeland; is that correct?---Yes, I did, Mr Sizeland was recruited at the same time as Mr Clee to the – there were two assistant general manager roles, and we went through our recruitment process.

And you would go to the centre, by the centre I mean the Don Dale Centre, and have discussions with Sizeland?---Yes.

And with the management and meet with his management group within the centre?---Yes. We would, whoever was available, but we also held regular staff meetings, and there were regular management meetings between the superintendent


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and the two assistant general managers as best as whatever was happening operationally on the day.

Alright. And there were matters that Mr Sizeland would ask that you take through to the Commissioner?---That seems reasonable, yes.

Thank you. And later on when you did, in fact, move your whole office out to Holtze when you were relocated from the old Don Dale for – in order for you to give high level support to those who were in operationally a very difficult situation. At that time, we’ve heard evidence about the BMU here. I’m not going to take you in detail. Some of my learned friends will, but I need to get an overview from you here. Because of your close consultation with Mr Sizeland you were familiar with the BMU, correct?---Yes, I was. But I was familiar with the BMU prior to Mr Sizeland joining youth justice.

You were familiar with the legislative regime in regard to isolation, correct?---Yes.

You were familiar with 153, sub (5)?---I would much prefer that if you put that on the screen.

I think if we need to, I will?---Okay.

I’m not going to grill you on it without you looking at it?---Great.

But, in any event, you’re aware that that section had application and governed the way in which that was all done, and you’re also aware that regulation 72 – again I won’t grill you on the details of it – governed the use of a cell in respect of isolation?---Yes, that’s correct.

Procedures. Now, were you aware at that time that people were being – young people were being kept in the BMU for periods in excess of three days on end?---Can you please clarify when you mean “at that time”?

Well, I mean in the period of time – so the period I’m now asking you about will be from February 2014 through to August when all of that trouble occurred?---The - - -

I’m talking about the first half of 2014?---I do not recall. I don’t believe I’m aware of detainees being held in the BMU area for longer than the three-day period, or going in for the three-day period without the appropriate approvals, and certainly there was the longer period that – from August 2 where they were held in there for longer periods of time.

So you were not told by management by Mr Sizeland or any of his juniors that that was occurring in the period February through July?---I don’t recall being told that.

Did you at any point take advice – I’m not asking you what the advice was, but did you take advice in that first part of the year as to the lawfulness of the use of the


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BMU cells for any period?---I don’t believe I did take advice as to the lawfulness of the use of the BMU cells as I was not aware that they were being used unlawfully.

Alright. I have to ask you these high level questions now?---Sure.

If you can’t answer, that’s fine for you to say so. I need to put them to you. Others may pursue them more deeply. Were you aware that there were intensive management plans put in place for certain detainees which allowed them to have their liberty, residual liberty within the centre deprived for a period of time up to 23 hours a day?---Yes. The IMPs, yes, I am aware.

Yes. And you aware that by operation of the IMPs a person might, even though they’re not on a cell placement very well fight themselves out of the BMU rooms locked in?---If they’re not on a cell placement.

Correct, if they’re not on a cell placement?---They should only have been in the BMU if the appropriate processes had been followed through.

Was your understanding this: that no one should be put in the BMU unless there had been appropriate orders – appropriate directions given either by the superintendent or in respect of a 24 hour, or the next level up in respect of a 72 hour?---That’s what I understand, yes, I believe.

Do you know there were young people – I think I’ve asked you that already. Okay. Now, your knowledge of what was being done – when you went to the BMU in that six-month period, were those – was there ever an occasion when you went there when the BMU wasn’t being used?---There were many occasions when I went there when the BMU was not being used.

So you went there on occasions when it was empty?---Yes.

Alright. Thank you. Were there ever any occasions when you went there when it was full?---I think the first time that I saw it full was the evening of August 21.

Yes. Okay. But just to be clear to you – thank you for answering that, and I’m dealing with the period before August?---Yes.

..... responsive answer. Very well. Thank you. Now, could I just take you to – you had to approve 72-hour isolation placements from time to time in your capacity as acting Commissioner; is that right?---If I was acting Commissioner, otherwise I did not have any ground to do so.

Were you ever asked to approve an ongoing one, in the sense that were you asked to approve a 72-hour placement when somebody was already in those cells and had been in them on an earlier placement?---I don’t recall doing that, and I would comfortably look at paperwork if that was the case.


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Alright. Thank you. Can we have, please, STB257 on the screen. And go to page 0179, so two pages in. Could you look down the bottom there at item 4.3.6?---Yes.

Rob Jobson Feedback. Now, this is a EDG meeting and it appears from this document that Mr Jobson is making a criticism. He says:

Automatic response that when young people misbehave they are sent to the BMU for 72 hours. This is pretty much all that’s done, and NTDCS needs to get better in its responses and case management plans, etcetera.

Firstly, do you recall that issue arising?---To be frank, no, I don’t recall it, but I’ve seen it in the documents, so I’m comfortable it happened.

Yes. Okay. And were you aware, therefore, as of March of 2014 that there was a criticism that the BMU was being used in a sort of maximal way and too frequently and too routinely?---My reading of – of the minutes there – I’m taking that on board is that we’re not – we were not doing more than just the placement so there needs to be more than just a placement in a BMU cell. The BMU cell placement is one thing, but we need to make sure that there’s appropriate support for the detainees while they’re in there and certainly when they’re levering the BMU placement. That’s how I understand that, particularly with the reference to responses and case management plans etcetera.

I put to you a – sorry, just excuse me. Yes. Thank you. I tender that document.


EXHIBIT #235 DOCUMENT STB257

MR MORRISSEY: I put to you - - -

COMMISSIONER WHITE: Do we know who Mr Jobson is?---Unfortunately Mr Jobson is also passed away. He was with the Solicitor for the Northern Territory.

So that was information that you had got - - -?---Yes. And it’s quite likely that Ms Nobbs-Carcuro sought that. She regularly liaised with Mr Jobson to get the, you know, advice that we needed and then I would have passed that on at the meeting.

Was he the regular solicitor that was utilised? Did you have some, you know, ongoing relationship?---Yes. We also worked very closely with – Mr Greg Mac, as he’s fondly referred to – Mr MacDonald, Mr Jobson, and then there would be relationships with various prosecutors from DPP in terms of if there was particular cases or they were seeking information.


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Yes?---But primarily Mr Jobson through Ms Nobbs-Carcuro and Mr MacDonald, who worked closely with the Commissioner, Mr Caldwell and me.

MR MORRISSEY: Just following Madam Commissioner’s question, can you – knowing what you know about Ms Nobbs-Carcuro do you know what the question was that Mr Jobson was giving feedback to?---And I’m going to try and read between the lines and pad this out a bit without doing anything misleading but I dare say we were trying to work out what – making sure or understanding where we weren’t meeting all the requirements that we needed to meet. Certainly having advice from Mr Jobson gave us weight when we would put things up and it was very useful for us to demonstrate if we were getting legal advice, you need to do X and you need to do Y. But it was important that we could demonstrate that and – to continue to push our position that we needed to improve dramatically youth detention.

Okay. Thank you very much. Now, did you also become – sorry. did I tender that?

COMMISSIONER WHITE: You did. Yes. Exhibit 235, Mr Morrissey.

MR MORRISSEY: Thank you. Thanks very much. Okay. Could I ask now that exhibit 198 be put up on the screen.

While this is coming up here, you tell me if I have got to slow down here, but you’re – if I may say, with respect, you’re handling it very well, the weight of documents that are being flung. So could I just ask you here, as well as the issue of people being placed in the BMU cells for BMU management-type reasons, you became aware, did you not, that some detainees were being accommodated in the BMU not on an isolation placement, that the BMU cell was, in fact, operating as their bedroom; is that correct?---At times, Mr Caldwell would approach both the Commissioner and me when there was a problem with the appropriate separation of detainees and there weren’t the available rooms to place those detainees. Mr Caldwell, I do recall on one occasion saying “We’re going to need to use this as an accommodation as opposed to a BMU placement.”

Yes. Alright. Thank you. Now – alright. Now, you were aware of – that Mr Caldwell had described that as being a longstanding practice, and you can see reference to that. Perhaps if we go to the next page on that email. I will just – I will try to help you?---Yes. If you could tell me where you’re looking that would be useful.

So the third paragraph:

In the past these offenders would have been placed on an IMP and housed separately in the BMU cells but not actually on a placement.

?---Yes. Okay.


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See that this is a longstanding practice and - - -?---Yes. Yes.

Were you familiar with that longstanding practice?---As I say, I don’t believe I was. Clearly in this email Mr Caldwell is bringing it to my attention.

I need to ask you about this?---Sure.

Although you were very experienced in terms of high level administration but you have also indicated you didn’t work in the youth justice space. Do you feel that you had – I don’t mean this as a criticism at all – but you were not always completely au fait with the operational terminology of the centre?---I think that’s a very reasonable statement and certainly I was learning a lot on the job. So while I was bringing an administrative expertise and a strategic expertise, certainly – learning about detention centres and understanding how they operated – I was learning on the job.

When you were told that something was a longstanding practice at Don Dale, then in the absence of some flagrant indication to the contrary, did you operate on the basis well, it’s probably legitimate?---I may – I may well have. And often, you know, I’d either seek advice, be it from Mr Caldwell or Mr Sizeland or Mr Clee to explain to me certain things, how does this work, does it – is this appropriate that it’s working this way.

Alright. Thank you. That’s an exhibit. Thank you. Could we now have up on the screen exhibit 196 and in particular page 0099 of that. Now, this is an occasion where Mr Caldwell seeks the Commissioner’s approval for a 72-hour placement. This is April 2014. See that?---Yes. I do.

And you see here that Mr Caldwell has sought the Commissioner’s approval for a 72-hour placement and although you’re not copied in on the reply here, whereabouts do we find the reply? Yes. You see at the top there, you see “Russeel”; it refers to Russell?---Yes.

It doesn’t appear that you were copied in on that at that time. But you were copied on the original request?---That’s correct.

To place a particular child in the BMU for 72 periods. Now you see what Mr Middlebrook’s reply is:

I approve the placement for 72 hours and after that, if he is still a problem, take him out for a period, say six to eight hours, and put him back in for a further 72.

See that?---Yes. I do.

Now, is that a practice that you were familiar with?---I’m not sure if I’m familiar. No. I’ll rephrase that. I’m not surprised by that response.


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Why are you not surprised?---Because I think in ways that we were trying to manage very, very difficult situations and the 72-hour placement is limited to 72 hours, and if there was perhaps an ability to get a further 72 hours, that it was considered if there is a reasonable period out-of-cell, then a further 72 hours could have been granted.

Yes. But what was it about that – did you have legal advice or did you read the Act to give you some comfort that that wasn’t just a completely illegal manoeuvre?---I certainly can’t respond in terms of this. I wasn’t copied into that.

No. But just on the practice you have said you weren’t surprised by?---There was one point we did seek legal advice, and I believe though – it may have been Mr Jobson, but I believe it was from Mr MacDonald in terms of - - -

MR O’MAHONEY: I rise to interrupt.

COMMISSIONER WHITE: I think there might be some claims - - -

MR O’MAHONEY: Yes. And you won’t be surprised by what I am about to say, Commissioner, but - - -

COMMISSIONER WHITE: Not a bit.

MR O’MAHONEY: - - - I think the balance of that answer is privileged.

COMMISSIONER WHITE: Yes. Thank you. You’re maintaining the privilege?

MR O’MAHONEY: Yes. I am, Commissioner.

COMMISSIONER WHITE: All right. Thank you. Ms Cohen, the Northern Territory Government has claimed privilege over the content of the legal advice that your department received. So - - -

MR MORRISSEY: Yes. Could I just indicate, Commissioners, that there may be, at an appropriate point, submissions as to whether privilege is available.

COMMISSIONER WHITE: It might be.

MR MORRISSEY: But for now we won’t – well, I won’t seek to presume upon that.

COMMISSIONER WHITE: Yes. Yes.

MR MORRISSEY: Well - - -

COMMISSIONER WHITE: It’s not easy to decide that one on the run.


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MR MORRISSEY: No. I agree. But I think we can deal with the matter in another way.

So is it the case – I understand that a claim of privilege is being taken by my learned friend, I think not on your behalf, but on behalf of the - - -

COMMISSIONER WHITE: No. On behalf of the Government.

MR MORRISSEY: - - - Government.

COMMISSIONER WHITE: I think so. Yes. Yes. Not your - - -

MR MORRISSEY: That seems to be the case.

COMMISSIONER WHITE: It’s not your privilege.

MR MORRISSEY: But, I think, nevertheless, your understanding is that that practice was regarded as legal; is that right?

MR O’MAHONEY: I’m not sure.

COMMISSIONER WHITE: I - - -

MR MORRISSEY: That’s not breaching privilege.

COMMISSIONER WHITE: It’s not. It really isn’t. What’s the objection, Mr O’Mahoney?

MR O’MAHONEY: Well, it just seems to be a way of arriving at the same substance. The substance to the answer that the witness was about to give, and I am concerned that it is really a question directed towards the substance of the advice that was received. I can’t understand the question as doing anything else.

MR MORRISSEY: Well, your Honour – I’m sorry, Madam Commissioners – Commissioners, the question is relevant, it’s admissible, it’s within the terms of reference. It doesn’t matter whether or not it has a tendency to expose the possibility that there was legal advice or not. The state of lawfulness might have arisen from a number of sources. The state of belief that I’m getting to might have arisen from a number of sources and I’m expressly not pursuing the issue of what advice was given at this point. It is directly relevant. It would be indeed egregious if this was pursued by persons knowing well that it was illegal but just going ahead recklessly anyway, so I seek to ask the question.

COMMISSIONER WHITE: Yes. The – as Director of youth justice one might assume that Ms Cohen made herself familiar with the provisions of the legislation. One might assume that, Mr O’Mahoney, so I think it’s not an appropriate question to ask.


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COMMISSIONER WHITE: Thank you. So we might have a go and start again.


The practice has been just been referred to, I just read to you Mr Middlebrook’s:

I approve the period of 72 hours and after that, if he’s still a problem, take out him for a period, say six to eight hours, and put him back for a further 72.

Now, what you have said is that that didn’t surprise you and I’m asking you about that practice. Was the view that you had, firstly, that that practice was lawful?---I don’t believe that the Commissioner would have directed something unlawful to happen and I don’t believe that we would have been led to believe that we could do things that were unlawful in our dealings with those people who could advise us of such.

COMMISSIONER WHITE: And did – and perhaps it’s – you haven’t quite squared up to the question?---Sorry.

But, you yourself, did you ever consider that in relation to the provisions of the Youth Justice Act for yourself?---We did discuss it and it certainly came up in an issue with a placement in an adult facility, what if there was a requirement or a need to keep a detainee in an adult facility longer than 10 days; was there an opportunity to extend that for a further period of time, be that a further 10 days or not? And I believed that if there – my understanding is if there is a break as the Commissioner is suggesting here, that that wouldn’t be outside of that – of the Act. That’s how I understood that to be.

COMMISSIONER WHITE: Yes. I understand the point you’re making. Thank you.

MR MORRISSEY: Okay. Thank you. Now, could we go to exhibit 198, please. Now, just while that’s coming up on the screen I have got an issue to raise here with you. You have indicated that you were familiar with that practice but do you see any difficulties with the proposal that’s set out there by Mr Middlebrook? That – first of all, that the replacement in the cell after a nominally six to eight hour break would be a three day placement rather than some tailor-made placement appropriate to the needs of the child? Do you see any difficulty with that?---I think I can – and I can appreciate your question. I think one of the challenges is to – that we need to consider this with all of the information, and perhaps that is contained in Mr Caldwell’s original email, but the circumstances and what was going on, what was the population of the detention centre, what was that child’s reactions with other detainees? So I can appreciate your question - - -


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Yes. Could I stop you there for a second. Sorry. I don’t – and, I think – don’t misunderstand: I’m not suggesting whether there were or were not operational reasons for employing a device like this?---Mmm.

What I’m just getting you to comment on at the moment is it just looks like a device to avoid the legislation, doesn’t it? It looks like that?---It may well be perceived like that. I can appreciate that that’s the perception.

Was that danger discussed between yourself and Mr Middlebrook?---Of this specific incident here?

Yes. No. Not this incident?---I see what you’re saying.

No. No. Not this incident. I mean this pattern. Did you discuss with Mr Middlebrook that may not be appropriate?---I think with the Commissioner we did have a couple of discussions where we felt there were challenges with the Youth Justice Act in applying them in an operational sense within the context which we had been given to operate and that was discussed on a couple of instances. Again, I don’t believe it was to – to do anything intentionally unlawfully but certainly we wished to have discussions about some of the challenges that we faced in light – well, in the context of the Youth Justice Act.

But was the outcome of those discussions that you would continue to use this particular device, the, if you like, rolling 72-hour placements?---No. And I don’t believe it’s in the case of this particular instance. No. I don’t recall having conversations like that at all.

COMMISSIONER WHITE: Was there – we have heard evidence from Mr Caldwell that he had exactly the same views: that there were operational difficulties in working within the parameters of certain provisions in the Youth Justice Act and regulations. Was there any consideration given to seeking amendment at least to the regulations or indeed to the Act itself?---Yes. There were. That actually happened post the closing of the old Don Dale and there was a move to make amendments to the Youth Justice Act. Different to those that happened following the redrafting of the Correctional Services Act, but certainly the Commissioner wanted to look – but it wasn’t around placements though, interestingly; that was around the use of restraints. But it didn’t become an issue and I think probably it may well have if we had remained in Don Dale because it was an issue: where do we go; where do we place the detainees? And whereas with the two other facilities, Holtze and the new Don Dale, the facilities, the infrastructure provided us greater management options, if you will, for the detainees because there was so much more room and different buildings in which we could do things, be that education or whatever.

Yes. Yes. Thank you.


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MR MORRISSEY: Very well. Thank you. Alright. Now, you referred – we will move on from that topic now. That will be revisited by other counsel at different times. Can I move on to the issue of audit reports from the PSU?---Yes.

I have asked you questions about that in general. Could we please have STB178 up on the screen. On 2 April, did you receive an audit report from the PSU which is depicted on the screen before you here?---Yes. I believe that was the document I was shown this morning.

Alright. Now, did that record, among other things, a variety of audit information difficulties? So there are three slash eight placement entries all for short periods completed correctly, and a number of issues were raised by Mr Ferguson or his nominees about the other entries. Do you see those?---May I ask to go to the second page?

Yes. Sorry. Of course. So the recommendation at the end is a record keeping recommendation. Do you see?---Yes.

But record keeping recommendations are important still because the ability of the PSU to produce useful audits is dependent upon proper record keeping?---Correct.

And so that audit doesn’t really produce anything like an accurate record of who was in the PSU or for what sort of period of time; correct?---You mean - - -

Sorry. In the – sorry. In the BMU. I apologise. In the BMU; is that correct?---Sorry. Can you – may I ask you to repeat the question.

I will put the question again. So this audit does not tell you – first of all, it’s not designed to tell you who was in the BMU?---No. That’s correct.

And for what period of time. What it tells you is that the records that they can access are not giving an accurate picture of that; correct?---I believe so. Yes.

So – alright. Thank you. I tender that.


MR MORRISSEY: Now, we have heard from Mr Sizeland here in this Commission at page 1187. He gave a description – he was asked to give descriptions of the BMU and he said it was a horrible place, not a suitable environment. He made a number of comments about it. Will you accept from me that we have heard from youngsters, workers on the floor, management, so on and the terms disgusting, outrageous and terrible and a variety of other colourful terms have been deployed with no argument. Do you agree with that: the BMU was an oppressive and horrid environment?---Yes. I do.


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Now, do you agree that the BMU came to be used as a punishment?---As you know, in detention centres, we’re not to punish per se; the punishment is a loss of liberty. I can certainly appreciate that the detainees would have felt punished by having a BMU placement. However, there were also needs to respond to certain behaviours of detainees and that at times included a BMU placement.

Thank you. But you understood that the inmates, the detainees, were viewing it as punishment?---That would make sense to me that they would see that at that. Yes.

The person who is on the pointy end of that though would hardly see it another way?---Absolutely.

You’re also aware that it was very important – just on that, and you will be asked questions about this by others too, but having seen what you saw and being aware of how it was being used, did you experience a high level of discomfort given that you were engaged at AJJA and you were well aware of potential conflicts between the confinement of the children in those conditions and the principles of AJJA?---Did I perceive a conflict?

Did you perceive a conflict. Yes?---Of my position on AJJA?

No. First of all, just to – I’ll get to your position. But really just a conflict between what the principles of AJJA required and what was actually happening?---Yes. There is an absolute stark contrast between the BMU and the standards and the principles.

Yes. I mean, the BMU wasn’t merely failing to measure up, but it was clearly contra those principles; correct?---That’s correct.

And it appeared to you that it was not merely a facility that was potentially not living up to standards but it was also potentially actively damaging to individual children?---Yes. I agree.

Thank you. And you had long-term desires to fix that and you tried to do so; correct?---Yes. I did.

But in the short term – I’ll just ask you – I have asked you before what happens when you get a crisis? Well, once you saw what was happening down – well, perhaps I will leave that until we get to August. Now, I just want to ask you quickly about behavioural management strategies. We have heard from the – here, we have heard from the youth justice panel to the Commission to various people who gave accounts here, and they said they were given little – this is my summary; I don’t think anyone will object to it. But they said they were given little by way of behavioural management strategies as part of their training. Mr Sizeland at page 1888 said something similar. Perhaps just for the Commission’s purposes later on the transcript references could be page 1796 and page 2003 where those things were said. I’m just putting the general thrust of evidence we have heard here. Now,


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obviously that’s said now and it wasn’t said in the same form back then. But you were aware, weren’t you, that there was a shortfall of behaviour management strategies available in the training to the staff who actually had to deal with the BMU?---Yes. I was aware.

Not merely the ones in the BMU, but the ones who were making decisions to put people in the BMU?---Yes.

Alright. So that training – now, you were alerted – can we go to exhibit 126, please. This is another PSU staff audit and this is – I think we might have showed you this one before already but if you just go – sorry. If you go to the second page, please. There are two recommendations here that you were familiar with. Training activities – the recommendations were: training activities prioritised to meet requirements for training one-hundred-percent of essential qualifications for operational staff in PART, senior first aid and suicide ..... recommendation 2: that the details - - -

COMMISSIONER WHITE: Don’t forget, Mr Morrissey, the transcriber is taking this down. Thank you.

MR MORRISSEY: If the Commissioners please. I’m sorry. And recommendation 2: the details maintained in the – within the wise net database and the training officer are aligned and accurately recorded preferably in one database. Now, you didn’t – you see they were – approval was sought from Mr Grenfell and Mr Ferguson; Mr Ferguson being head of the PSU; correct?---That’s correct.

You have indicated in your response – can we scroll down, please. I just want to take you to your – I just want to take you to your comment here:

While I’m comfortable with the overall findings of the audit, I am not comfortable that one officer’s position in relation to the audit are included in the findings so I have not – so I have noted though not approved.

Now, I’m not really concerned by the concern that you had about the one officer’s position in relation to the audit. But in terms of the overall findings there, you were comfortable with those findings, as you have noted here?---I would really be comfortable to read that whole document, if you wouldn’t mind.

Of course. Yes. Well, perhaps we could just scroll back to the first page. Perhaps just give the witness a chance to - - -?---Thank you.

While that’s being read may I ask the Commissioners to have a short break at 4.20.

COMMISSIONER WHITE: You indicate when you want to do it.



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Tell us when you have done. As you read, can I – is it going to distract you if I say what I’m going to come to so that you know what you’re reading for?---I’m nearly done.

You’re done?---Yes. I am. Thank you.

So you see your note at the end?---Yes. I do.

What I’m getting at here is – I don’t want to be distracted about the reservations that you felt about one training officer’s particular viewpoints. But the overall deficiencies that are detected, you didn’t have any difficulty with those - - -?---No.

- - - deficiencies existed?---No. I did not.

Thank you. Alright. So certainly by that time you were reminded of what you already knew to be an ongoing problem; is that correct?---Yes.

Look, you had warned them back in 2013, September 2013, in effect, that they were sitting on a time bomb; correct?---Yes. I did, and I continued to do so.

And they were; correct? And then when we got to August, the bomb went off; correct?---That’s correct.

Yes. Alright. Let’s go onto the issues of case management. You were aware that there were problems with the delivery of case management and programs; correct?---Yes.

Could I just, without going to these, I won’t take you to these but could we – could I just tender STB258. That’s some minutes of a relevant meeting which – executive directors meeting which speak to that.

THE WITNESS: May I interrupt?

MR MORRISSEY: Say again. Sorry?---May I interrupt just to add something.

Of course. Yes. Of course?---Excuse me, I think you made reference to the bomb going off being 21 August. I think we had a number of incidents.

Yes. Sorry?---And each incident clearly identified that we were beyond struggling.

I think you said August generally but I take your point and I accept you were certainly not meaning to limit it to the 21st?---No.

Neither was I and if I said so I withdraw it and apologise.

COMMISSIONER WHITE: The document that you tender is exhibit 237.


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MR MORRISSEY: Thank you. May we do the same with respect to STB266 and tender that.



MR MORRISSEY: And STB267. These are all – what’s being tendered here, Ms Cohen, just so you understand these, various records, minutes of meetings where you have indeed expressed these various concerns about case management and the provision of mental health services?---Yes.



MR MORRISSEY: And I think it’s not necessary to walk you through all of those?---Thank you.

You were aware of it?---Yes. I was.

You reminded them. You did that as part of your duty to give frank advice?---Yes. I did.

And to allow good decisions to be made?---Thank you.

And finally could we have – yes. Just stop there. Could we now have STB84 on the screen. Now – sorry. Just one moment, please. Yes. We think that might not be the correct document. Could we try DDY.0001.0004.8040. Alright. Now, in May 2014 you had cause to write a memo to Mr Middlebrook recommending a PSU investigation [REDACTED INFORMATION]

And so this material was – you had a number of – just one second, please. Sorry, Commissioners. I just need to resolve one matter. Just excuse me a moment.

COMMISSIONER WHITE: Perhaps we will just take that down off the screen while you’re resolving it.


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MR MORRISSEY: Yes. I agree. Thank you. Alright. Look, perhaps – I won’t – we will just hesitate about tendering that document for now given it has just occurred to me there might be some other material there that is not appropriate to go forward.

Anyway, you were aware of an allegation concerning him – I won’t go into the details of it now – and you sent an email raising the issue?---It looks like – if I have signed the bottom of that brief?

Did I say it was an email? Sorry. We will resolve this matter fairly swiftly. Yes. I can show it to you but you may accept from me that you have signed it but I’m happy to show it. Perhaps if the witness could be shown?---It would be useful if I could have a look at it. Thank you very much.

Just ignore the highlighter there; that has been done by counsel, not by you?---Right. Thank you.

Turn over the page and you will see the signature?---Yes.

MR O’MAHONEY: Commissioner, while the witness is reading that, I don’t represent [REDACTED INFORMATION], but I rise for the same reason I did the other day. They are very serious allegations that I don’t think were ever substantiated. And my friend, I think - - -

COMMISSIONER WHITE: No. Well, that’s why I hope ..... done.

MR O’MAHONEY: It has been pulled down, but it was mentioned, and after it was mentioned the other day I think my friend sought from you a non-publication order. I would be grateful if a similar order could be made in the circumstances.

COMMISSIONER WHITE: Yes. I certainly will make that order. I will just wait till Mr Morrissey has gathered together what he needs to.

MR O’MAHONEY: Thank you.

MR MORRISSEY: I’m instructed – I’m sorry. I spoke over you.


MR MORRISSEY: I’m instructed that the feed was cut, so that it hasn’t gone out, but I’m content if – I was just trying to recall the details and that ordering has been ..... so - - -

COMMISSIONER WHITE: Well, I will simply make a non-publication order - - -

MR MORRISSEY: Yes. I’m content with that.

MR O’MAHONEY: Thank you.


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MR MORRISSEY: Alright. Thank you. I’m very grateful for that.

COMMISSIONER WHITE: That’s broad enough, because I can’t really identify precisely the words. I think anyone would know what it referred to.

MR MORRISSEY: Now, just – I take it you saw that allegation without forming a concluded view whether it was true or not yet because that wasn’t your job?---I have clearly signed it.

Yes. But it was a matter of concern to you?---Yes.

And you just saw it as yet another symptom of the troubles, or potential symptom of the troubles?---I think with this in front of me, I think these are symptomatic of inappropriate recruitment activity and then going through inappropriate training process and assessment processes where you can identify whether people are suitable or not. But also being in a position to quickly respond if you do find that a staff member is perhaps unsuitable to the role.

But just – may I just put – take something a bit further there. The Commissioners have had a chance to see one particular former Youth Justice Officer, Mr Kelleher, and, as you know, he was dismissed from his conduct that occurred in August subsequently. But you would agree with this: that Mr Kelleher, although he behaved inappropriately on that and possibly other occasions as well – sorry. I’m told me resigned ahead of being dismissed?---He did resign. Yes.

He resigned. But the fact is there was a great deal of benefit to Mr Kelleher if he had have been trained properly and supervised properly. Do you agree with that?---I think if Mr Kelleher and a number of staff had been given the appropriate training and structure that we would have had very, very different outcomes in youth detention.

I’m just making the appointment. You said it was a recruitment issue and really it’s a training issue, isn’t it?---What you have just showed me here, I think it raises some other issues around recruitment.

Yes?---For example, when you’re recruited you go through criminal history checks etcetera so there are things that you would be able to pick up or warning signs and the Department would be able to respond appropriately. I think that’s different to the question about Mr Kelleher.

Just finally on this topic, we heard from Mr Caldwell in his evidence before the Commission yesterday. That’s at 2121, Commissioners. He said that by April 2014 Don Dale was in crisis and the focus of his day-to-day work was to management that crisis rather than to deal with any strategic directions. Now, that’s something that he


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said, but would you concur with that position?---I think it’s very clear that we were operating in an environment that was a steady stream of extraordinary challenges and that had far too many peaks of crises.

Alright. Now, August – thanks - - -

COMMISSIONER WHITE: Now, what do you want done with that document Mr Morrissey?

MR MORRISSEY: I apologise.

COMMISSIONER WHITE: It’s not going to be tendered, I take it?

MR MORRISSEY: We were speaking of – that’s the document which – in respect of which there was a non-publication order?


MR MORRISSEY: I don’t offer that for tender.

COMMISSIONER WHITE: No. Thank you. So it can go back into your folder.

MR MORRISSEY: Thank you. Yes. Thank you. Alright. Now, I just have a very brief set of questions then we may seek a short break. So July – in August two – I’m sorry. August 2014, there were a series of incidents that brewed up; correct?---Yes.

And you may look at any documents that you need to, to do that?---Yep.

But you would agree that given what we have been through here, the incidents themselves were symptomatic of the broader problems of Don Dale; correct?---Yes. I think that’s very – sound assessment.

You had – you had what appeared to be an escape attempt resulting in some children being placed in the BMU; correct?---May I check that you’re referring to 2 August?

Yes. I’m sorry. I should - - -?---Yes.

Pardon me. I will try to do that. So from 2 August you had people placed in the BMU?---That’s correct.

And we have heard from Mr Caldwell that the thinking there was whatever the legal niceties may have been they had to be put somewhere and that’s where he put them?---I think there was an absolute time line of conversations and extraordinary lengths that both Mr Caldwell and Mr Sizeland went to find alternative solutions to the BMU. That incident happened on 2 August and I believe from my statement that the detainees were returned on the 4th, 5th and the 6th, around those dates. By 6 August Mr Sizeland was making requests that we clearly needed to find another


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environment, another facility, to accommodate those detainees. It was inappropriate to place them with the main population because of their behaviour. Staff had been considerably shaken by that particular incident as some of them, you would be aware, had been threatened. However, we were unable to – to find a suitable facility that would either sit within the Youth Justice Act. We sought legal advice. We tried to identify if it was possible to use a part of what was still the Berrimah prison. In the Youth Justice Act, yes, you can place detainees there for 10 days but it was inappropriate under the Youth Justice Act for us to establish a separate facility within those boundaries, noting that that is actually an option in the Beijing Rules but it wasn’t something that was available to us. And Mr Caldwell and Mr Sizeland were particularly concerned about this because they recognised that already there was escalated behaviour by these detainees. A BMU placement for any length of time was not going to be useful in deescalating that behaviour or starting to resolve the elevated emotions that the detainees were feeling and their behaviours that they were exhibiting. So unfortunately we were left in a very, very difficult situation operationally as it wasn’t any of those detainees that we needed to manage and we were responsible for, but all the other detainees in the centre at the time and the staff.

Just – may I just take a couple of issues from that, and we have heard a great deal of evidence about this in different aspects. You’re not going to be regaled with the horrors of it all. But you did appreciate from an early time, and I mean at least from when Mr Sizeland started making his requests on the 6th, that placement in those cells was, in fact, damaging to those children?---Without a doubt.

And damaging not merely to them as human beings deserving of respect, but damaging to them in terms of their ability to reintegrate with the general population within Don Dale. In other words they were becoming – well, sorry. I won’t put my words. Let me withdraw that question. I will just try to deal with it a little bit differently. Apart from their own subjective suffering, the management purpose of putting them there to calm down or to deescalate was clearly impossible to achieve by that means; is that right?---I agree. The - - -

So the rationale for putting people into isolation we have heard in the old days was to deescalate. That was, if you like, the simple basis for it. It was having the opposite basis by this time; correct?---And I think, you know – and we do hear about detainees being sent to their room for a few hours of quiet time. I think we can all appreciate that that can be very beneficial at times with teenagers, but certainly the BMU was not a conducive environment to changing somebody’s behaviour in a manner we wished for it to be changed, even if that was a short-term change.

Were you made aware of the – of any demands by the children incarcerated there for details of their management plan, whether it be an intensive management plan or some other plan?---Certainly became aware of that with all the followings after the August 21 incident. It is quite likely that I may have received information along the way – I don’t recall being specifically – but it would not surprise me that the detainees may not have been at all comfortable with their behaviour management plan or their incident management plan.


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Commissioners, is that an appropriate time for a break?

COMMISSIONER WHITE: Yes. Certainly. How long would you like, Mr – 10 minutes?

MR MORRISSEY: I think 10 minutes is sufficient. Yes. Thank you.

COMMISSIONER WHITE: Would that be fine?

MR MORRISSEY: Yes.

COMMISSIONER WHITE: Right. 10 minutes, then. Thank you.

ADJOURNED [4.24 pm]

RESUMED [4.35 pm]

MR MORRISSEY: Commissioners, I raise some matters very quickly. I myself must depart. I apologise to all that that’s the case but I should take my lead and my learned junior will step into my ..... secondly, I’m advised, although counsel for Ms Cohen, it might be appropriate to sit no later than 5.30 on her behalf. She’s having a very long, testing day and I admit I’m .....

COMMISSIONER WHITE: ..... another commitment. Afterwards, our day, like yours, doesn’t end. We think 5.30 is the limit anyway. Besides which, we have a suspicion that the air-conditioning goes off then, which is a good reason for leaving. Alright. 5.30 is finishing time.


So just – again, I’m just sticking to a couple of issues in August. There was a point at which you were involved in permitting representative from NAAJA to go down to the centre. Do you recall that?---To permitting?

Yes. And to – then to facilitating a tour, an inspection tour by NAAJA representatives?---I believe you’re referring to the regular meeting that NTDCS had with NAAJA and we held it at the Don Dale facility for the first time. That’s the - - -

Yes?---Yes? Yes.

And did you take the opportunity there to escort persons from NAAJA through the facility?---I believe Mr Sizeland did the escort through the facility but we – yes – facilitated that.


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Alright. Now I think I put to you the 14th, but it may be 12 August that that occurred. Could I just ask you this: it was already the long-term plan – after the $11.2 million submission was abandoned, the plan was to move to the old Berrimah site, the site of the old Berrimah prison; correct?---That’s correct. Yes.

Okay. And you were aware of comments made by the Commissioner previously that that premises was fit to be bulldozed?---Yes. I am.

Did you – are you aware of whether he clarified that stance when Berrimah came to be redeemed?---Yes. He did clarify that, and the Commissioner clarified by saying that the – as an adult facility, given the numbers of inmates, that it was no longer suitable as it had been built for a lower number and there were now many more adult inmates, and that to change it, for want of a better word, into a detention centre was achievable given the far lower numbers of detainees in comparison to adult inmates, and the size of the – of the site and the number of buildings on the site.

Do you recall when it was that he did issue that clarification and in what form? Was it a press conference or was it a briefing note or - - -?---I do – I do recall the Commissioner pretty quickly either identifying himself that that earlier comment would come back to bite him, or whether it had actually been raised in the media, and he wanted to address that fairly quickly to – to reposition why it would be more suitable to use it as a different type of facility than one that had that many adult inmates.

I have asked you to be critical a couple of times of things said by Mr Middlebrook, and I just wanted to – perhaps to capture something here because we know he’s coming later on. He can speak for himself. But he did use colourful terms of phrase from time to time. Do you agree with that?---Yes. I do.

In fact, in some ways in a working sense it was quite a likeable characteristic about him?---Yes.

And he was a gregarious sort of individual and fun to work with?---I enjoyed working with Mr Middlebrook.

Yes. Alright. Thanks for that. Well, when the escort – when the NAAJA representatives were taken through the centre, was there an aspect to that that what you yourself and possibly the Commissioner as well, you tell us, were trying to achieve was to let the NAAJA representatives know, “Don’t be too spooked by going to Berrimah. This place has outworn its usefulness”?---That was very much my intention to have the discussion with the Commissioner that we hold that meeting at Don Dale. Naturally, members of the NGO community and others had raised concerns about us moving to the adult facility. However, for me it was fundamentally clear that we couldn’t continue in the old Don Dale and I note we haven’t spoken about Alice Springs and that’s potentially for another time, and that the only option that had been made available to us by Cabinet was to move into what would become the former prison. Given the BMU, given all of the challenges that


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we were having in the old Don Dale, we had to make the best of that. We had to make that work. That was what was given to us.

Alright. Now, if you had the time, if there wasn’t a crisis at – at the old Don Dale, in other words, had somehow or other things limped along through August without these crises, there was no plan to immediately move those children out yet, was there? There was a plan to hold them there until Berrimah was ready; is that correct?---Yes. My apologies, yes. So when that incident in August happened it certainly escalated the need and I think the recognition from both the Commissioner and the Minister that we needed to move and we needed to move swiftly. And that’s when the Holtze facility was identified as an interim measure.

Yes. Can I just stop you there?---Yes.

We’ll get to that in a second?---Yes.

Before the crises projected you over to Holtze, when was it anticipated that you might make the move over to Berrimah?---We wouldn’t have been able to have moved until the end of the year when it had been – and the term that’s used is decanted and it be decommissioned, excuse me, as an adult prison and the refurbishments had been completed.

So when the NAAJA people were walked through the premises, following holding the meeting, at that point a plan was that you would hold the kids at the old Don Dale for another six months?---Yes. We didn’t have any other – we certainly hadn’t identified another alternative option than the – to await Berrimah.

Now - - -?---And if I may?

Yes. Of course?---Not only had we not identified another facility, there weren’t other facilities. So we had certainly tried to identify – the girls going to Ura House – doing things differently, but there weren’t facilities available to us.

Alright. Now, I think we have already pointed you out, taken you to the minutes of the ED meeting but could I just take you to the aftermath. I think others will take you to the specific incidents including the gassing. I won’t, but it may be that some have questions. In any event, the incident that led to the – led to the tear-gassing, whilst it had its own specific characteristics, of course, the fact is that’s exactly the sort of disaster that you had been predicting. I know you weren’t predicting who was going to be in which cell and how it would happen, but a disaster of that type is exactly what you had been predicting since 2013; is that correct?---I don’t think I could have envisaged the night of 21 August.

You don’t have operational experience of that nature, do you?---No. No. So 21 August was quite extraordinary on a number of levels, but certainly recognising that we were heading towards multiple challenges and that we were just on a path to


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having incident after incident because we just weren’t able to do what we needed to do.

Yes. And I take it from what you say, your position is that it would be misleading and distracting, really, to focus too closely on any individual incident without looking at what the context was?---Yes. That’s correct.

What we’re dealing with here is systemic problems; correct?---Yes. It is.

Now, did you have a chance to read Mr Ferguson’s – from the PSU, his report which was dated 19 September 2014? That’s exhibit 125. I wonder if that could be brought up, please. I have just been shot-clocked, Commissioners.

COMMISSIONER WHITE: I should think so.

MR MORRISSEY: May I just – may I ask these questions then my learned friend will - - -

COMMISSIONER WHITE: A matter entirely for you, Mr Morrissey, whether you catch your plane or you don’t.

MR MORRISSEY: Well, I think this is a document that Ms McGee might do just as well as I or better, so may I now withdraw?

COMMISSIONER WHITE: Yes. You may. Thank you for assistance to the Commission.

MR MORRISSEY: And I’m grateful for the patience of all who have listened to my coughing. Thank you.

<EXAMINATION-IN-CHIEF BY MS McGEE [4.50 pm]

MS McGEE: Ms Cohen, my name is McGee. I’m one of the Junior Counsel Assisting the Commission?---Hello.

COMMISSIONER WHITE: We might need you to speak up a bit, Ms McGee.

MS McGEE: Yes. Given I don’t have the coughing issue, I might - - -

COMMISSIONER WHITE: Yes. You can turn those mikes up. If you could just – thank you.

MS McGEE: Ms Cohen, you were aware of the review that was conducted by Mr Ferguson at the PSU at the direction of Mr Middlebrook after the event?---This is this report here?

.ROYAL COMMISSION 30.3.17 P-2379 S. COHEN XN©Commonwealth of Australia MS McGEE

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Yes. Have you seen this report recently?---I would like to read it now if I may.

Yes. Please do. I should indicate to you that we have received evidence from Mr Ferguson that this version of the document, while it is unsigned, was the version that he did sign at the time and provide to Mr Middlebrook?---Thank you. May I have the second page?

Yes. Can we please scroll?---Thank you.

Ms Cohen, I don’t like to interrupt you, but can I ask, are you reading this for the first time or is this a document that you have read before?---No. It is a document that I believe I have seen, but it’s obviously quite a detailed document and I’m just refreshing my memory if that’s alright.

Yes?---And perhaps the next page if I may? Thank you. And the next page, please. Next page please. It’s a long one. Next page please. Next page please. Thank you.

Ms Cohen - - -?---Can I just check the first page, the date of that. Sorry. Yes. Thank you.

Ms Cohen, do you recall when was the first or last time that you read that document before today?---Yeah. No. I’m not going to be able to give you an exact date on that.

COMMISSIONER WHITE: We don’t probably need an exact date. But at about the time that it was compiled?---Well, it hasn’t come through me so it looks like it’s directly from the director PSU directly to the Commissioner, and the Commissioner is absolutely entitled to direct the PSU to undertake an investigation without the Executive Director’s knowledge.

Do you think you thought at about the time it was created?---I became aware of a report, and I believe we discussed it, we being the Commissioner, Mr Ferguson, Mr Sizeland and Mr Caldwell earlier in the following year. I think that was around the date. I certainly remember the Commissioner talking to me about elements within this report. Whether it’s exactly the same as the report that I believe I saw a couple of months later, I’m not clear on.

Thank you.

MS McGEE: Thank you Commissioner. Are you aware that Mr Sizeland has provided a statement to the Commission addressing his knowledge and involvement in this report?---I know bits of it. I haven’t read his transcript.

If I could just suggest to you that the tenor of his evidence is that he was made aware of this document in a meeting, as you have just described with Mr Ferguson, yourself and Mr Caldwell. Mr Sizeland described that the meeting had been requested by the


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Commissioner who initially attended and departed. Do you think that’s referring to the same meeting?---I think it’s highly likely. Yes.

Now, Mr Ferguson – Mr Sizeland, rather, describes that at that meeting Mr Ferguson read parts of the document and that Mr Sizeland said he did not agree with what was said in the document. He said he requested a copy and a right to reply but was refused. Now, Mr Sizeland also says that he was informed later, albeit by Mr Caldwell, that Mr Caldwell and yourself would not endorse the document?---That’s correct.

Is that correct?---That’s correct.

So did you make that representation on the basis also of having been told certain parts of the report, not having seen the whole of it?---Partly but also as it did not appear that either Mr Caldwell or Mr Sizeland had been part of this investigation, so they had not been given an opportunity to either answer or be provided natural justice, if you will, or even provide input into an investigation. So we three were unaware of it until it was brought to our attention. I believe I may have been advised of the meeting going ahead prior to Mr Caldwell and Mr Sizeland being invited to the meeting, but I was not given – I don’t think I was given a copy prior, but I was not comfortable to sign it.

So are you saying your discomfort with the document was more what was missing from it rather than what was in it?---And I don’t believe it reflected correctly – I think this makes some very strong and determined positions and views, and I did not share all of those.

Did you share some of them?---I think - - -

For example?---I think, absolutely, Mr Ferguson raises issues that I had been raising since I commenced in the role, that we didn’t have appropriate training, it was very difficult to run a detention centre appropriately. Certainly, that was certainly not new to me. I disagreed strongly with the description of Mr Sizeland and I disagreed strongly the manner in which the management that was delivered by Mr Sizeland and Mr Caldwell was being described.

Other than those aspects, for example, where Mr Ferguson set out complaints that were made by detainees, did you have any reason to disagree or doubt those?---Can you just point me to the right paragraphs so I can have a look at that.

For example, I could point you to, for example, a staff complaint at the top of page 3 which is 3057, that some staff have stated that the whole place feels like it’s falling apart, there’s no procedures, accepting what you said about disagreeing with the comments about managers, did you have cause to disagree with staff statements such as:

The whole place felt like it was falling apart and there’s no procedures.


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?---So I’ll address the second part if I may first. Certainly, the procedures we had to write, and it was taking an awfully long time to write those. We didn’t – certainly when I started we didn’t have a comprehensive suite of procedures in detention. There were far fewer in number and we relied – often we would refer to the adult ones and try to adjust. And that was very difficult to build those and to write those, my apologies, appropriately. I think one of the things that staff were also suffering is that we were starting a changed management process, so we had introduced the superintendent slash director position, the assistant general managers and I think one of the things that Mr Sizeland and Mr Caldwell were doing were implementing a change and trying to establish that structure that we so lacked. Some staff did not - - -

COMMISSIONER WHITE: Can I just ask you - - -?---Yes.

You have mentioned it in passing that it was taking a very long time to get some operating procedures there. Now, you were well aware of the want of training of the Youth Justice Officers, particularly the casuals who were coming on. Wasn’t it imperative that there should at least be a set of Standard Operating Procedures that they could take home and learn?---Absolutely. Absolutely.

Why was it taking so long?---One of the issues that we have, and it’s in my statement, we have a group of operational staff or detention centre staff who would understand the workings – and some much better than others, and some were experienced – the workings of the detention centre and what needed to happen when, and what procedures should look like. They were not necessarily the right people to write those nor did they have the time to be taken offline to explain to people who did have writing skills to write those. So one of the areas where we found it particularly difficult, if you like, that – that back room staff support to operational areas. So in head office in town, the adult facilities had a number of staff who provided that support. So prison officers were able to do their jobs, the superintendents were able to run the centres, but a lot of the back room work was done in the head office. We didn’t have that capacity, and so trying to get staff to take them off front line service delivery when we’re working in a very difficult environment and bouncing from crisis to crisis, then having staff who didn’t know detention rule but the head office staff who didn’t come from a detention centre background made that particularly difficult. And far, far from ideal.

COMMISSIONER GOODA: But, Ms Cohen, we’re talking about the operating procedures of a centre that’s supposed to keep kids safe, rehabilitate them, and it’s taken years to get there?---Well - - -

It beggars belief that it could take that long for just a simple set of operating procedures to be developed?---And I appreciate you saying that over the years. The time that I was there and the complications of having appropriate operating procedures, not just for – sorry, if I talk to the two facilities, we have got Alice Springs and Don Dale, then we came to three facilities, and the procedures need to


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change each time you change a facility. So some things will be relatively standard across centres. Other things changed dramatically because of the infrastructure.

But this is your core business. This is the core business of your department: to look after kids and have a set of procedures?---I agree.

It’s not something we would like to do down the track somewhere. This is core business?---I know. I agree with you wholeheartedly, Commissioner, and I’m not for one moment suggesting it’s something that could be done later. It was very, very hard to do it appropriately and in a timely manner with the lack of resources that we faced continuously. I’m not denying for a moment what you’re saying. It was – it was core business. But with everything needing to be done, we at times absolutely floundered and were not able to do the things within the time that it was required so I’m not disagreeing with you by any stretch of the imagination.

Where do you think the buck should stop here on this?---In terms of operating procedures?

Yes. That. Let’s start with that?---In terms of operating procedures, I think you could be quite correct in saying as the Executive Director I should have absolutely made that happen. One of the challenges that I faced was not having the right resources and the necessary number of resources to do that. And that resource decision is – would sit with the Commissioner and ultimately Cabinet, but I think you’re fair to say, “Executive Director, you have a responsibility to make sure the things are in place,” and I was unable to fulfil that during my time.

COMMISSIONER WHITE: Can I – we’re not a pair of attack dogs, Ms Cohen?---Not at all. I totally appreciate the frustration.

Can I ask you this: if you didn’t have the resources in your office to write a standard operating procedure manual that was fit for purpose, around Australia there are numbers of juvenile detention centres, some of which were run on the lines that perhaps were not inconsistent with the way in which it was expected that you would run Don Dale and Alice Springs. Could it not have been resourced out?---And we did – we did look at that and the Commissioner was quite keen to get other people from other detention centres to assist. That has a budgetary implication. I was already – in our area, we were overspent on an average basis each year around the $800,000 to $1 million mark. And we were still operating, and even with that overspend we were still operating way under the capacity of what we needed to do our job. So, yes, that would have been fantastic ......

So that was mentioned, was it, by Commissioner Middlebrook - - -?---Us - - -

- - - that perhaps we could resource – did he raise the fact that the SOP was just not happening?---Yes. He was concerned by how long it was taking us to get it done. He spoke about getting in detention centre offices from other detention centres to work alongside Youth Justice Officers in the Northern Territory, those with more


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experience and who had worked in an environment where there was robust training, where there was all the things that you would want in such an environment. However, that didn’t come to fruition during my time.

Alright. Thank you?---Thank you.

Sorry, Ms McGee. We took over your questions.

MS McGEE: It’s quite ..... Commissioner.

Ms Cohen, leaving aside your concern in relation to the absence of procedural fairness for Mr Sizeland and Mr Caldwell, wouldn’t you agree that the tenor of this review and the language used therein was a very effective way of communicating the views that you held about the status of the conditions of the detention centre and the pressures that detainees and staff alike were experiencing?---No. I don’t agree with that because it’s actually – while it’s – it’s revealing or articulating the pressures, it’s pointing it at the failures of primarily two officers, and I think that’s unfounded and unfair.

Do you say that having, on the basis of what you have just read just now, is there anything in particular that you point to, to make that suggestion?---I think there are a number of elements within that document where they refer – where Mr Ferguson has referred to the assistant GM or the GM not being active and dynamic managers; that nothing is ever done. I think that is – again, I think it’s very harsh, unfounded, and I don’t believe a true description of what those two officers were trying to achieve.

But it was a review that was based on discussions with staff, wasn’t it? I can just turn you to the second paragraph on the first page which was:

The information relied on in this review was obtained through discussion with youth justice staff, prison staff, other department staff, detainees, audio and visual recordings.

You would agree that that’s quite a wide base of information to base a review upon?---I would like to see who was interviewed.

Did you ask?---Yes. We did ask. I had a little bit of information from Mr Ferguson on the time and he told me – one thing that stuck in mid mind in particular he had bumped into one of the Youth Justice Officers who had been a long-term YJO; he bumped into him at a supermarket and they had a discussion one evening.

You would agree that that’s quite a wide base of information to base a review upon?---I would like to have seen who was interviewed.

Did you ask?---Yes, we did ask. I had a little bit of information from Mr Ferguson on the time and he told me he – one thing that stuck in mid mind in particular – he had bumped into one of the Youth Justice Officers who had been a long-term YJO,


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he bumped into him at a shopping market and they had a discussion one evening. And with all due respect to this report, I think if you want to get to a certain end point you can choose with whom you want to have discussions and choose not to talk to other people.

Is that what you’re suggesting Mr Ferguson did in reaching his conclusion?---I – what I am suggesting is I don’t believe the investigation was wide enough to give a really comprehensive and balanced position. I for one was not investigated – or had any discussion with Mr Ferguson about his investigation and I think if I go back to our earlier discussions, I think it’s important for the Commissioner in this instance to have been made – to be given an opportunity to make a balanced assessment to have been given perhaps the range of views that was being held. And I don’t believe that that has been offered in this instance.

Well, you would accept though, wouldn’t you, that that wouldn’t necessarily actually change the outcomes?---I beg your pardon?

That the process that you’ve described involving others wouldn’t necessarily change the outcomes of the review?---I don’t think highlighting the shortfalls that we’ve discussed quite a lot would change. I do, however, wonder if what I read as laying this at the responsibility of two officers, I’m not sure if that would have been – the clear message that I take away from this report.

Well, leaving aside your construction of it, that it does lay blame at simply two officers’ feet, did you not think that the report – given its quite wide ranging information: various sources of detainees, staff and independent audio-visual recordings, and that the seriousness of what was raised in it, and the very frank language as opposed to public service language – did you not think that this review was another point at which – or a springboard from which you, in your position providing frank advice to your superiors, taking what you did accept from it, could use to once again emphasise the dire straits that the Don Dale Detention Centre was in?---Again, I will say I think that I and others through the various reviews that were held during the time when I was Executive Director articulated very clearly the systemic problems that we were facing. I appreciate and I accept those high-level systemic issues that Mr Ferguson brings to the fore. It was not the first time that had been brought to the Commissioners’ or the Executive Directors’ group attention. However I was uncomfortable signing such a document because of the manner in which it was conducted. So I’m not disagreeing with the high-level systemic problems that we had, I do, however, disagree in the way in which – to get – actually, I will phrase it a different way: to come to his conclusions Mr Ferguson could have also reviewed to the number of reviews that had been conducted. In that sense there is no change, but to lead the reader to think that this could be readily resolved, I think, from – from what I’m reading into it as laying the blame at two officers I think is inappropriate and incorrect.

Well, leaving aside blame, it was the correct statement of the serious systemic issues that the detention centres faced at the time.


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MR O’MAHONEY: I object. The witness has accepted that. I mean, she has accepted - - -

COMMISSIONER WHITE: I think – yes, thanks, Mr O’Mahoney. I think Ms Cohen has accepted the systemic issues are articulated correctly in the report.

MS McGEE: Thank you, Commissioner.

And you would agree, wouldn’t you, Ms Cohen, that it was stated at a much higher and more direct level than you had ever stated in your documents and your comments to your superiors?---No, I agree.

MR O’MAHONEY: I object to that. It has been answered.

THE WITNESS: I disagree strongly.

MS McGEE: If I could just take you to supplementary – I will just – I will just ask one question before I do that. In the days after the night of 21 August there was an Executive Directors’ meeting a couple of days after, I believe, on 25 August. Do you recall that? And do you recall Mr Middlebrook saying at that meeting that in his view the situation that evening could not have been brought under control unless he authorised the use of gas?---It would be useful to see those minutes so that I can confirm.

Certainly. So It’s supplementary tender bundle 259. If we can just scroll down.

COMMISSIONER WHITE: Is that 3.4?

MS McGEE: Yes, I think that might be it, Commissioner. It’s about the middle of the paragraph 3.4, the end of the line?---Yes, I’ve got that now.

Continuing:

In Ken’s view the situation could not have been brought under control unless he authorised the use of gas.

Did you agree with that statement?---I agreed that Ken said that. I can’t agree with that, I don’t have the operational experience to say whether that could have been taken under control in a different manner. But I do agree that the minutes reflect appropriately what Ken would have said.

Did you agree with the use of gas at all in a detention centre?---No, I didn’t. And there’s a memorandum which is part of my witness statement where I made that quite clear to the Commissioner, that I did not approve of the use of gas or the use of restraint chairs.


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And did you also – did you agree with his statement there, a couple of lines down, that staff acted extremely professionally that evening?---In terms of the – I think there are – there are two groups of staff here to which we’re referring. So one are the prison officers who were brought in and who had received training to do what ultimately happened with the gassing, and then there were the Youth Justice Officers. And I think what Ken – sorry, what the Commissioner is referring to is that they responded to the directions that they were given and, again, as somebody who is not – I do not have that operational expertise, for the Commissioner to say that staff acted professionally and responded to directions I think is a reasonable statement to make.

By that stage you did have experience working with detainees and with young people?---In a detention centre?

Yes?---Certainly – certainly I had met the detainees on a number of times and spent time with them in both Alice Springs and Darwin.

And in that context, that being your profession at the time and that of colleagues and other persons there on the evening, did you agree that in that context in working with children that the staff behaved professionally on that night?---What – what we saw on that night and what we’ve seen from that night is particularly confronting. What I can tell you is that staff responded to, and those Correctional Services staff, the prison officers responded to the directives that they had been trained and instructed to respond to. And the Youth Justice Officers, what I saw and I was standing outside, followed the directions that they were given. So in terms – in that sense you could say yes, they met their professional requirements. Was I comfortable with it? No, I wasn’t.

Can you expand on why you weren’t comfortable with it?---The night of the – of 21 August I arrived probably middle of the evening. I arrived at the detention centre and it was extraordinary. There was an incredible amount of noise. The alarms and sirens were going off. And I went out to the basketball area. There was a lot of noise from the detainees. There was lots of banging on the door. There was screaming. There was yelling. It – I likened it to being inside a video game. It was quite – it was beyond surreal. When I saw the detainees being led out and then hosed down, that is a very confronting thing to see. Teenagers having to go through that, not that I particularly understood what being gassed felt like or meant. I did go into the BMU afterwards, as staff had gone in there, one of the things that struck me was that the prison officers were really well equipped and the Youth Justice Officers weren’t, and the Youth Justice Officers worked very quickly to try and get the detainees out of the BMU. So in that sense it’s extraordinarily confronting and not something that I was expecting but any stretch of the imagination. Not something that I had ever seen.

And we did take you earlier, but just to clarify in the chronology, that at that meeting a few days later you were very emphatic that the contrast between potentially the preparedness and the training and the professionalism, for want of a better word,


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between the Youth Justice Officers and the prison officers was very stark?---It was such a stark contrast. I think by that stage we had managed to introduce a polo shirt for Youth Justice Officers. The prison officers arrived in their full uniform and appropriate footwear. And appropriate footwear is really responsible – is really important in that environment, including on good days. You know, you are – it’s a job when you are on your feet. They had equipment that I hadn’t seen before in use. And the Youth Justice Officers looked very inadequate in comparison and were seeking guidance and advice or following the prison officers who had clearly been trained in this sort of environment or this type of response.

Two days after the incident, do you recall Mr - - -

COMMISSIONER WHITE: Are you going to tender that document, Ms McGee?

MS McGEE: I had thought that one, Commissioner, might already have been tendered earlier on. But if not I will.

COMMISSIONER WHITE: I don’t recall seeing it earlier.

MS McGEE: 259. I think we had gone to a different part.

COMMISSIONER WHITE: I see. Is it in, I will just ask.

MS McGEE: Maybe 229.

COMMISSIONER WHITE: It’s 229. It must have been a different part.

MS McGEE: Yes, I think it was.

COMMISSIONER WHITE: Yes. Thank you.

MS McGEE: Do you recall two days after the incident – I appreciate there would have been many emails at this time, but Mr Middlebrook forwarded you an email from the Minister which was his reply to a media enquiry; do you recall that?---It would be useful if I could see it.

Yes. Could I have supplementary tender bundle 308 on the screen.

And it’s a reverse chain down the – if we could just scroll up one, please. Thank you.

If you look at the second half of the first page you see there, it is from John Elferink to Danielle Lead, with:

See slightly amended version below.


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And if we read there below that, you can see there is a senior journalist writing to Ms Lead, it would appear, asking:

Does Corrections or its Minister stick by the decision to use tear gas? Is Corrections conducting its own internal investigation?

?---Yes I can see that.

And then you see Mr Elferink’s – what we would assume is his amended reply there under A and B?---Yes.

And he says there:

These children are not the kind that bring home apple pie for their parents. These youths have the ability to be very violent and extremely dangerous. When a youth in custody is seriously threatening staff with weapons, including with metal bars and sharp glass, they cannot simply be subdued by giving them an assertive cuddle. When staff are put in real danger they must do what is necessary to calm the situation and bring it under control. If that means using gas, so be it, and I support the decision to use it. Young prisoners who threaten staff, escape, and tear the facility apart must be stopped. Their behaviour will not be tolerated. The increasing nature of extreme violence amongst some youths is deeply concerning and needs to be addressed. They are in Don Dale and in the cells because their behaviour put them there.

Mr Middlebrook forwarded that to you saying:

You will love this.

And you responded:

Well written.

What did you mean by that?---I responded “well written” to B, which is the appropriate response that would have been issued from the Minister’s office, not what is under A.

COMMISSIONER WHITE: I didn’t quite hear your answer?---My apologies. I wrote in response to option B, which is the appropriate response that should have been issued from the Minister’s office, which is on the last page, that an investigation is currently underway – underway and it would be inappropriate to comment on the operational aspects of the incident until it has been finalised.

MS McGEE: You didn’t point to option B there, did you?---No, I didn’t. I didn’t.

Should you have if that was really what you meant to say?---I think the Commissioner would have clearly understood that my position would have been B.


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The banter between the then Minister and the Commissioner is something that occurred, but, for me, absolutely the appropriate response is the last response there under number B.

So he was saying “You will love this” in reference to B, was he?---I don’t believe so.

MR O’MAHONEY: I don’t think the witness can answer that question.

MS McGEE: I suggest to you, Ms Cohen, that anybody inspecting these documents today would have no hesitation in thinking that you were saying “well written” in relation to A and would not draw the conclusion that you have just suggested?---And I can appreciate that for people who don’t know me, I can appreciate that from people who haven’t worked with me. But I believe that my – my approach to youth detention, my approach to youth justice, and my ongoing beliefs about what needs to be done and how we should do things appropriately would have those who have worked with me draw a very different conclusion. Though I appreciate very easily how that decision could be formulated.

I tender that document, please, Commissioner.

COMMISSIONER WHITE: What was that?

MS McGEE: I tender that document.

COMMISSIONER WHITE: Yes, Ms McGee, certainly. That’s exhibit 240.

EXHIBIT #240 DOCUMENT

MS McGEE: And indeed, this genre of comment to the media was quite common, wasn’t it, in that category of A?---From - - -

- - - from both Mr Middlebrook and the Minister?---From the Minister. You would often hear the then Minister talking about detainees in – in similar ways to what’s highlighted under A.

Can I take you please to supplementary tender bundle tab 294.

COMMISSIONER WHITE: Speak up a bit.

MS McGEE: Apologies, Commissioner. 294, please. It’s quite small. If we could zoom in a bit. If we just scroll down slightly.

You will see in the middle of the page there it reads:

Some of the children –


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I apologise, this is 24 October, so we are a bit further down the track in 2014:

Some of the children are part of a small group dubbed the worst of the worst and villains.

The article records as the Minister saying, and he’s also quoted as saying:

All courtesies that we have attempted to bring to bear on them or give to them up until now have been withdrawn. These are strapping young lads, but my goodness gracious me we will crack down on them and we will control them.

Now, presumably that’s in reference to some incident?

COMMISSIONER WHITE: Can you just scroll down the document a bit further. Thank you.

THE WITNESS: Sorry, which paragraph are you reading from?

MS McGEE: I had a few dots in my notes. So it commenced a bit further up.

COMMISSIONER WHITE: It’s near the bottom of the screen, Ms Cohen?---Sorry, yes, I’m looking at it now. Thank you.

MS McGEE: Now, I appreciate it’s not your specific duty in your role to be filtering the Minister’s press releases, but knowing what - - -?---Not at all.

- - - knowing what you knew about the dysfunction, and the lack of services, and the state of staffing which persisted in youth detention at this time, you must have known, from your position with your knowledge, that this message being sent to the public by the Minister was misleading. If I can be a bit clearer. You had insider knowledge, effectively, about the conditions that children were being detained in, and the pressures on them and on staff?---Yes.

And the statements by the Minister did nothing to convey what consequences those pressures would have on the behaviour of children, for example?---No, and that’s demonstrated in this press release.

And their mental state?---No, it doesn’t.

And the forces going towards behaviours that might lead to incidents and escape attempts?---That’s correct, I agree.

And did you form an opinion during the course of your time in – as the Executive Director as to whether the Minister was, in fact, misleading about these repeated situations when he spoke to the public about what had occurred.


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MR O’MAHONEY: Can I ask, Commissioner, is that being asked specifically about the statement that’s on the screen or is that asked in the ..... statements that the witness hasn’t been taken to. If my friend could clarify that.

MS McGEE: It is a general question. I think the witness has accepted that it was not uncommon for the Minister to speak in terms such as this. And I did ask the question generally by reference to incidents that were, for example .....

COMMISSIONER WHITE: I think Ms Cohen – I understand your objection, but I think Ms Cohen has shown herself well able to manage these kinds of broader questions.

MR O’MAHONEY: She has. I do hesitate to embrace the proposition that the witness has somehow accepted that the Minister would mislead the public. I don’t think she has done that at all.

COMMISSIONER WHITE: No, that’s not the step back it is, that there is a tendency for him to use language such as shown here and elsewhere. So - - -

MR O’MAHONEY: It’s a serious allegation, Commissioner. I don’t want to cut across you at all, but it seeing a serious allegation if any specificity could be given to the questions I think that might be fairer to the witness. If you’re against me, I understand.

COMMISSIONER WHITE: Thank you. Thank you, Ms McGee. I don’t uphold the objection but, of course, Mr O’Mahoney is correct in saying it’s a serious allegation.

MS McGEE: Indeed.

COMMISSIONER WHITE: So we will walk it fairly quietly.

MS McGEE: Yes.

I suppose, Ms Cohen, I’m asking whether you formed an opinion that the messages that the Minister was conveying to the public were not completely accurate and did not adequately convey the state of affairs in detention?---The then Minister and the then Government, with their pillars of justice law and order reform, had what is often referred to a tough on crime approach and stance. That was certainly not hidden from the public and some would perhaps even say they may have well been part of elected on that platform. That position and a tough on law – or tough on crime, my apologies, stance very rarely leads a supporter of that position to talk about the myriad of complexities and challenges and complex issues that lead to young people committing crimes. So that tough on crime stance doesn’t go to that level to talk about the things that you’re suggesting. It’s very rarely part of that discourse.


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So you would agree that the comments do not adequately convey the situation as you understood it?---Yes, I do agree.

And did you ever call the Minister out via the appropriate channels on these statements?---It’s – I think it’s important to say that a public servant doesn’t call a Minister out. I think that’s very important. Our role is to provide advice, and we’ve spoken about that this morning. And then it’s up to the Minister for him or her to decide to talk to that advice or include that advice in their policy or in their directions to their department. I had very few meetings directly with the Minister. I met with his office and usually the – not regularly with the Chief of Staff but with the – sorry, I’m just forgetting the name of the title of the position that’s held in the Minister’s office – but the ministerial officer that looked after the Correctional portfolio. And there’s a much ..... title to that but I just can’t remember what it is right now, my apologies, about the different approaches and what we needed to do to make these changes. And certainly the Commissioner and my colleagues in Executive Director Group, and my colleagues across Government and the NGO sector were also very aware of that. But it’s not for me to call out a Minister.

COMMISSIONER GOODA: Ms Cohen?---Yes.

We talked this morning with Mr Morrissey about frank and fearless advice?---Yes.

I get it – I understand how a Minister – you can give a Minister advice and they do whatever they want with that?---Yes.

But I think the question Ms McGee asks about whether you gave any advice that what the Minister was saying was incorrect. So there wasn’t any advice going up?---I think there was quite a lot of advice going up, Commissioner, in terms of the – the problems that we were facing and the positions that we needed to take. In terms of responding to a media release and how a Minister communicates with the media, no, I would not have given advice in relation to that.

Is that part of the frank and fearless advice if they run the potential of misleading the public?---I think our advice goes up in memorandums where you provide the advice that you need to provide, but yes, it’s – and I’m struggling with this because it’s an interesting question. We – I’m not aware where we would go back. You would go back – no, that’s not correct. You would go back, if a Minister said “We’ve spent $2 million on X” and actually they’ve only spent 1.5, you would go back and make that correction. And I think our ongoing advice to the Minister was around this, what needs to be done. However the Minister was taking a very, very different approach. But I did not go back. To answer your question directly, did I go back on these specific media articles to say, “Minister, that’s not right”.

What about if the Minister had the potential to mislead Parliament. Do you think you would have a duty then to provide alternative advice to the Minister?---The documents that we provide to Ministers that may inform a session of Parliament provide the detailed information, and that can be a number of formats. Again, a


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Minister will talk to those documents or not, sometimes, as the case may be, and have their discussion with his and her Parliamentary colleagues. If there was something that was, again, incorrect in terms of some specific budgetary considerations or something like that, you would go back and correct that. However, I think given that the Minister had made it very clear that this was the law reform direction that he wished to take, while we would continue to provide advice, I don’t believe we – and nor did I – constantly remind him that there was a different approach in that sense. So to go back to a media article and say, “Minister, you haven’t mentioned the mental health issues. Minister, you haven’t mentioned these. Minister, you haven’t given a clear account”. The Government was very, very clear, they had a tough on crime policy platform and our role as public servants, yes, while providing frank and fearless advice at some point you have to administer their – and work under their direction or choose otherwise to leave.

MS McGEE: I note the time, Commissioners.

COMMISSIONER WHITE: Can you tell me about the program tomorrow and when I can tell Ms Cohen when we will need to hear from her further.

MS McGEE: I was going to suggest, I believe we have four vulnerable witnesses tomorrow starting from 9.30. We also have one non-vulnerable witness. I appreciate it’s a little bit inconvenient, but could I ask the Commissioners if Counsel Assisting – if I could discuss with other Counsel Assisting and then also discuss with the parties, and then particularly Ms Cohen’s representatives just in the next little while and we could then let Mr Cohen know.

COMMISSIONER WHITE: Well, yes, you can discuss it with Mr O’Mahoney to let Ms Cohen know when we will want to hear.

MR O’MAHONEY: Certainly. I might be able to short-circuit it by saying this: I understand that the preference of those to my left is to have the other witnesses interposed in the morning. I can indicate that Ms Cohen has asked me to indicate that she is content to come back tomorrow afternoon.

COMMISSIONER WHITE: Alright. Thank you, Ms Cohen for that indication, but you will get some better time frames to - - -?---Thank you.

- - - think about. But otherwise at 9.30 tomorrow morning and your solicitors or someone from the Commission will perhaps send you a text to let you know a not-before time?---Thank you very much. Thank you.

Thanks, Ms Cohen. Alright. So we will adjourn until 9.30 tomorrow.

MATTER ADJOURNED at 5.32 pm UNTIL FRIDAY, 31 MARCH 2017


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Index of Witness Events

MICHAEL YAXLEY, ON FORMER OATH P-2257CROSS-EXAMINATION BY MR LAWRENCE P-2257CROSS-EXAMINATION BY MS LEE P-2261CROSS-EXAMINATION BY DR DWYER P-2269CROSS-EXAMINATION BY MR O’CONNELL P-2278CROSS-EXAMINATION BY MS MORREAU P-2286CROSS-EXAMINATION BY MR O’BRIEN-HARTCHER P-2290CROSS-EXAMINATION BY MS BALLARD P-2294CROSS-EXAMINATION BY MR TIPPETT P-2297CROSS-EXAMINATION BY MR O’MAHONEY P-2299RE-EXAMINATION BY MR MORRISSEY P-2302

THE WITNESS WITHDREW P-2306

SALLI COHEN, AFFIRMED P-2307EXAMINATION-IN-CHIEF BY MR MORRISSEY P-2307EXAMINATION-IN-CHIEF BY MS McGEE P-2379

Index of Exhibits and MFIs

EXHIBIT #208 NINE PHOTOGRAPHS OF THE PAINTINGS P-2278

EXHIBIT #209 LETTER CONCERNING THE CROSSOVER DATED 02/06/14

P-2278

EXHIBIT #210 DOCUMENT P-2294

EXHIBIT #64.74 TENDER BUNDLE 74 P-2304


P-2307


P-2308

EXHIBIT #213 SECOND STATEMENT OF SALLI COHEN DATED 08/03/17

P-2308

EXHIBIT #214 STATEMENT IN RESPONSE TO KARLA RABY DATED 23/03/17

P-2309

EXHIBIT #215 STATEMENT IN RESPECT TO EVIDENCE FROM MR DE SOUZA DATED 24/03/17

P-2310

EXHIBIT #216 LETTER FROM THE SFNT P-2310

EXHIBIT #217 EXTRACTS P-2314.ROYAL COMMISSION 30.3.17 P-2395©Commonwealth of Australia

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EXHIBIT #218 IMPLEMENTATION OF GOVERNMENT POLICY

P-2316

EXHIBIT #219 ANNEXURE SC5 TO STATEMENT NUMBER 1 P-2320

EXHIBIT #220 SUPPLEMENTARY TENDER BUNDLE 263 P-2324

EXHIBIT #221 AJJA STANDARDS FOR 2009 P-2335

EXHIBIT #222 TWO STATEMENTS P-2336

EXHIBIT #223 SUPPLEMENTARY TENDER BUNDLE 262 P-2338

EXHIBIT #224 EMAIL FROM THE MINISTER P-2338

EXHIBIT #225 TENDER BUNDLE 75 P-2340

EXHIBIT #226 STB252 P-2341

EXHIBIT #227 STB77 REVIEW PLAN P-2343

EXHIBIT #228 EMAIL FROM MR CALDWELL P-2347

EXHIBIT #229 MINUTES P-2348

EXHIBIT #230 EXECUTIVE DIRECTOR MEETING DOCUMENT

P-2351

EXHIBIT #231 EMAIL FROM MR MIDDLEBROOK P-2352

EXHIBIT #232 MINISTERIAL MEMORANDUM P-2353

EXHIBIT #233 STB256 P-2353

EXHIBIT #234 EMAIL FROM MS COHEN TO MR MIDDLEBROOK

P-2354

EXHIBIT #235 DOCUMENT STB257 P-2360





EXHIBIT #240 DOCUMENT P-2390


Transcript 30 March 2017 Web view.ROYAL COMMISSION 30.3.17P-2306 ©Commonwealth of...

Documents

Transcript of Transcript 30 March 2017 Web view.ROYAL COMMISSION 30.3.17P-2306 ©Commonwealth of...