transcript 13 october 2016 web viewso their primary role in the first instance was to establish two...

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TRANSCRIPT OF PROCEEDINGSTRANSCRIPT IN CONFIDENCE

O/N H-717814

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

9.31 AM, THURSDAY, 13 OCTOBER 2016

Continued from 12.10.16

DAY 4

MR P.J. CALLAGHAN SC appears with MR T. McAVOY SC and MS V. BOSNJAK, MR B. DIGHTON, MR T. GOODWIN and MS S. McGEE as Counsel AssistingMS S. BROWNHILL SC appears for the Northern Territory of AustraliaMR P. O’BRIEN appears for Dylan VollerMR J.B. LAWRENCE SC appears for ADMR M. GUMBLETON appears for AA, AB and ACMS F. GRAHAM appears for Central Australian Aboriginal Legal Aid ServiceMR P. BOULTEN SC appears for the North Australian Aboriginal Justice AgencyMR J. TIPPETT QC appears for Ken MiddlebrookMS A. DAWSON appears for Mr Scott Avery

.ROYAL COMMISSION 20161013 P-193©Commonwealth of Australia Transcript in Confidence

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RESUMED [9.31 am]

MR McAVOY: Good morning, Commissioners. Ms Bamblett is in the court.

COMMISSIONER WHITE: Good morning, Ms Bamblett.

MR McAVOY: Commissioners, there is a little matter of housekeeping with Ms Bamblett’s statement, which was tendered yesterday: there was also an annexure 4 which I failed to mention, and it hasn’t been tendered at this point. It’s a Commission for Children and Young People letter from Andrew Jackomos, which is exhibit – annexure 4 and - - -

COMMISSIONER WHITE: That can be exhibit 22, then.

MR McAVOY: 22. Yes, Commissioner.

COMMISSIONER WHITE: Yes. Thank you.

EXHIBIT #22 COMMISSION FOR CHILDREN AND YOUNG PEOPLE LETTER FROM ANDREW JACKOMOS

<MURIEL BAMBLETT, ON FORMER OATH [9.32 am]

<EXAMINATION-IN-CHIEF BY MR McAVOY

MR McAVOY: Ms Bamblett, this morning I wanted to ask you some questions about the structure of the Growing them strong, together report, which you prepared together with Dr Bath and Dr Roseby. If we can just turn to page 48 of the report, please. Can you see page 48, Ms Bamblett?---Yes.

It’s titled Structure of the Report and it sets out, in summary form, the contents of each of the chapters?---That’s right.

I want to ask you some questions about the order of the chapters. The report starts with an executive summary and then sets out the recommendations, and then there is a discussion about structure. Chapter 1 is an introduction and chapter 2 is contextual information. Chapter 3, which is at page 81 of the report, is titled An Integrated Framework for Child Safety and Wellbeing in the Northern Territory. That’s really the first substantive chapter, isn’t it?---Yes – yes.

And then chapter 4 is titled Responding to the Particular Needs of Aboriginal Children; correct?---Yes.

.ROYAL COMMISSION 20161013 P-194 M. BAMBLETT XN©Commonwealth of Australia Transcript in Confidence MR McAVOY

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Chapter 5 then is about the Northern Territory Child Protection system as it was in 2010, and then the report essentially goes on to deal with the issues raised by the terms of reference in the remaining chapters?---That’s right.

You’re happy with that - - -?---Yes.

- - - description? Did you put a bit of thought into the order of the chapters?---The Commission – the Board obviously did, because we thought there was some really urgent need issues that needed to be put up the front in the report, and particularly around the integrated services and the investment in the front of house, and so the context clearly needed to be put out there, because the context of the Northern Territory was unique in particularly – in relation to other states and territories.

Ms Bamblett, I might ask you to speak up a little bit more?---Okay.

And just to slow down a fraction?---I’m from Melbourne. Sorry.

So chapter 3, about the integrated framework - - -?---Yes.

- - - for Child Protection, has been put up the front of the report essentially because the Board of Inquiry saw that as really the most important aspect; is that - - -?---We definitely did. We felt that there needed to be as much investment at the front of house, and preventing children from coming into the care system, as what was invested in the tertiary end of the system. So rather than keep on investing in services to take children away, we actually thought the priority was to put the investment to stop children being taken.

I will ask you some more questions about that in a moment. Should the Commission read anything into the fact that the Board of Inquiry devoted chapter 4 to the needs of Aboriginal children particularly, even though there’s no specific terms of reference that asked you to do that?---Obviously it became – it became very obvious the Board, with regard to the data and looking at the overrepresentation of Aboriginal children in the Child Protection system, and the – obviously the context in which child welfare was delivered, particularly delivering services to Aboriginal people in remote areas.

So if we just now turn to chapter 3. That commences on page 81?---Mmm.

And if we could turn to page 82 of the report. On page 82, you can see there, there’s a heading the Northern Territory Context – Potential for a Different Approach; you can see that?---Yes.

And then underneath there that heading there is a quote from PeakCare Queensland. And if we look at the footnote, it’s from a discussion paper they wrote about rethinking Child Protection. That quote – if you could just read it to yourself to refresh your memory of it. Yes?---Mmm.


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Does that quote – is – that quote been inserted into the report in that spot because the Board of Inquiry thought that it accurately described the Northern Territory context?---Definitely.

I beg your pardon?---Definitely, from my point of view.

Definitely?---Yes. I think it was purposeful in putting it in there, because it described what we found.

If you can now turn to page 83 of the report. Ms Bamblett, this page of your report deals with a number of issues, and I’m going to take you to them. Can you please read the first paragraph to yourself. That description of the evolution of mainstream child protection laws; is that a description which in your view, at the time that the report was written, included the Northern Territory system?---Yes. Some of the language we tend to use is westernised systems of child welfare, so introduced systems. Westernised, we call them in Victoria. So we’ve adopted westernised systems of protecting children: rather than creating our own here in Australia, we adopt them from other – other countries.

Thank you. Can you read the second paragraph to yourself, now, please. You’ve read it?---Yes.

That paragraph discusses the mandatory reporting system in the Northern Territory, and the effect that you perceived on the Child Protection system. Correct?---Yes – yes.

Can you just explain a little bit more what is meant by the last sentence in that paragraph, which reads:

The disjuncture between the scope of mandatory reporting demands and the capacity of systems to respond has overwhelmed the system and is failing to protect the very children it has been designed to serve.

Can you elaborate on that at all?---Yes. It basically is that there’s so many notifications coming into the Department of Families, at the time there were so many notifications for all children coming in, and an inability of the system to be able to investigate all of those allegations. And so Northern Territory – it could be someone walking down the street that sees something, it could be something big, or it could be something little, actually is mandated to report. And so Child Protection and the intake team were inundated with numbers of notifications that were often viewed as not needing investigation, but tied up resources and tied up staffing. And so of major concern for us was the higher risk, and categorise – how you set the categories to be able to ensure that all children that were at severe risk were getting an investigation, and timely investigation. And so if you look at the backlog for the department, back there, was very high. And that number today is still increasing. And so the backlog – for a period of time, they worked very hard in the department to reduce that backlog of investigations, but at the moment that backlog is very high again, which


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was a significant concern to the Board of Inquiry. It basically raises concerns about whether the department is able to investigate where children could be at risk in the Northern Territory.

COMMISSIONER WHITE: Was there any part of your report that recommended that there could be a bit of a step back from this universal mandatory reporting – which was, no doubt, done with the best of intentions, but was having this incredible overload effect?---I’m not quite sure. I don’t recall a recommendation. I know we agonised, and – over it and felt that it was not within the Board of Inquiry’s mandate to recommend a legislative change around mandatory reporting, but felt that other states and territories don’t have the stringent legislation that the Northern Territory has.

That’s right. But it’s an example, isn’t it, of offering what seemed to be an appropriate solution to a problem?---That’s right.

But it really wasn’t thought through the consequences of - - -?---The major concern is that we heard from professionals in organisations that they had put in a notification and were struggling to get the department to actually respond to some of those notifications. So that was concerning. So if you were going to talk into teachers, and you’re talking to nurses, and health professionals, and they are doing notifications because they have got real concerns for the safety of a child, but the threshold for investigation is so high that they can’t get to those notifications. That was a major concern for the inquiry at the time.

Thank you.

MR McAVOY: So is it your opinion that what was happening, or were you aware of cases where children the subject of notifications were not protected or suffered a abuse because the system was not well enough resourced?---Given the level of backlog, one would only guess that children continued to be at risk, and so not being able to address the backload of notifications would certainly place children at risk.

The next paragraph is an extract from the submission of the Tangentyere Council. Do you know where that council is situated?---I’m trying to find it. Which one are you talking about.

The Tangentyere Council, do you know which office is.

MS BROWNHILL: Tangentyere.

MR McAVOY: Sorry?

MS BROWNHILL: It’s Tangentyere.

MR McAVOY: Tangentyere?---Okay. Just trying to .....


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Thank you. I’m obliged to my learned friend. If I said it was in Alice Springs?---Yes. Tangentyere, yes.

Yes. Sorry, it was my mistake. Poor pronunciation. Is the characterisation in that paragraph, which is the indented paragraph, is the characterisation of the child protection system as a vehicle for trauma, rather than protection, the same concern that you describe at paragraph 9.1 and 9.2 of your statement? If we could just show that on the split screen?---It sort of – it does, but it also doesn’t capture that we also heard from more people about the fact that they really wanted something done and they really – and so the very brave stood up before us and said that they wanted action, and they wanted to be able to protect the – but they wanted to do it themselves, rather than have a system do it. So they were concerned about the system, but they were more concerned that they were disempowered to do it themselves, and they didn’t have the resources or the belief of the system that they could do – could make the changes.

And those views that you’ve just expressed then, were they widespread across the Northern Territory Aboriginal community?---About the fear of the system, yes. And - - -

And - - -?---Of the - - -

And a desire for the - - -?---For a change.

For change?---We heard from men and women. We heard it from Aboriginal men. An Aboriginal man came up at Ramingining and he basically said, “Please”. And he was only a young man. He said, “We need to keep our children in our communities. Can we come up, can we do it, rather than someone else do it for us?” And so we were – you know, the communities were asking us if we could give back to them the capacity to look after their children. But I think 9.2 talks about what I – we spoke to elder and respected men and they did speak about their roles portrayed as abusers of Aboriginal children, and that they felt they were losing respect, and that the community and the children in the community were losing respect for them as men, and they felt that that could lead to further dysfunction in the community. Not their words, my words, but they felt that it could break down, within the community, laws that had governed the community for many years.

Could I ask you to look at the last paragraph on page 83, please. Can you see that paragraph?---Yes. Alarming.

So the term, “Residual approaches”?---Mmm.

That means waiting until abuse or neglect has occurred or was likely to occur?---That’s right.

The second sentence in that paragraph makes a prediction that, if efforts are not made to prevent child abuse and neglect - - -?---The numbers would grow.


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- - - the Northern Territory could expect exponential growth in child notifications to continue?---Mmm.

Were you saying there was already exponential growth in notifications?---I think if you look at the rate of removal in the Northern Territory, as compared to other states and territories, certainly the – there was an overrepresentation of Aboriginal children and at that time when we did the inquiry 75 per cent of the children in care were Aboriginal. And so - - -

And how much of the exponential growth was – is able to be put down to the mandatory notification system?---That’s difficult to know, but if you don’t – I believe if the Territory government had have implemented our recommendations around putting in services to the front of house I think that we – those numbers would have absolutely been reduced. The fact that they – the government never invested in service – you know, a comprehensive service system up front I think has contributed to the continuing high numbers and the numbers have grown since the inquiry.

What you observed when you attended in Aboriginal communities had a lasting effect on you?---I think it would, for any Aboriginal person, to see your own Aboriginal people living in situations – overcrowded housing, the level – you know when, you saw women in – who were experiencing family violence being locked up in shipping containers or – you know, to protect them with no mattresses on the floor. That wouldn’t happen in any state or territory. When you saw children, you know, in the court system who didn’t have a lawyer to represent them – so the voice of children, you know, adults and families have lawyers, children don’t have lawyers. How do we protect the best interests of children? But I think we – you know, I was approached by a woman whose child had gone into care two years earlier and she had a baby in her arms. She didn’t know where that child was. So, you know, the personal stories, you heard them over and over. And so they go. It basically says that, you know, a lot of Aboriginal people in the Northern Territory don’t enjoy the same basic rights as Aboriginal people everywhere in Australia, and to escape the poverty of neglect and disadvantage they have to leave the Northern Territory and go elsewhere. And why would you want to leave such a rich culture, and your land, and your language and your traditions behind, just so that you can have a better life? You know, you should be able to enjoy your culture and live on your land and have access to everything that your country has given you for – you know, 60,000 years and not have to leave.

Do you think that those aspects of enjoying your land and culture are important parts of Aboriginal identity and community life?---Every day I work in child welfare and I see the importance and I see the effects of bringing children back to their culture and knowing their language and experiencing their aboriginality. In Victoria, where invasion hit the most, coming up here and seeing language – seeing people enjoying the language and talking their language, to me was – I was so jealous, and every day in Victoria we are trying to give culture back to a lot of children who have been placed in non-Aboriginal care away from their – and the thing they starve most is to


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know who they are and where they come from. And so I think if the Northern Territory doesn’t recognise that its Aboriginal people are its greatest ..... and the fact that you’ve got such a strong cultural base here in the Northern Territory, and you need to build on, and invest in it, and grow it, I think would be a wasted opportunity if we build a child protection system that makes Aboriginal communities become more non-Aboriginal, rather than build on what has been, you know, for 60,000 years.

Now, in that last paragraph on page 83 you also refer to some South – a South Australian report titled Contact with South Australian Child Protection Systems: Statistical Analysis of Longitudinal Data – Longitudinal Child Protection Data, which the report describes as alarming?---Yes.

What – why was it alarming?---Well, I think that it talks about the – you know, the projectory for children, and it’s talking about the fact that – and we don’t have longitudinal studies for the Northern Territory, and so we use the South Australian one. It talks about that if that’s the history for the northern – you know, the sort of evidence for South Australia, then what will be the evidence for the Northern Territory? And so we were using that and saying that if we rely on the statutory system as a response, then more and more children in the Northern Territory will continue to end up in out of home care away from their communities.

The final sentence of that paragraph makes the observation that those statistics demand that an alternative approach be found?---That’s right.

Can we please turn to page 86. On this page the Board of Inquiry describes a public health approach to child abuse and neglect. Are you able to just explain for the Commission what a public health approach is?---I think it – it relates to that we need to be able to deal with the issue of child welfare more across the whole platform. So across health, across child care, and across the whole – where children are and where families are, and so be able to, you know, engage families in universal and secondary services, but not just – and take a more holistic look at child welfare. And so it – public health, it – for us, it’s the capacity to identify families with different levels of need and risk who might respond differently to support from their families. So we really started to really look at how do we actually treat children who have – came from families with drug and alcohol, mental health, family violence and a range of issues and started to look at let’s not just treat the drug and alcohol, let’s not just treat the mental health. How do we actually deal with the whole of the issues that have been ..... presenting with?

So you described a flexible and multi-disciplinary approach?---To – yes, to address the issues of families, because I think part – a lot of our systems, and it’s the case in Victoria as well, Aboriginal families will present to a service and often get short episodic, and end up being referred all over the place, and so for Aboriginal families you need to take a whole – a multi-disciplinary approach, so that you start to address all of the issues that the family are presenting with. But it has to be child centred. Family focused, but child centred.


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So putting the interest of the child first?---And understanding the impact of their behaviour on the child, on the developmental needs of the child, and ensuring that the safety of the child is put first. And so it’s really important – and I think, you know, here in the Northern Territory we found more concentrated disadvantage. We looked at the wealth divide between Aboriginal people and non-Aboriginal people. We found that Aboriginal people were more likely to have lower gross weekly earnings, so they were much poorer. So obviously Aboriginal people earn a lot less money than non-Aboriginal people. So it means that Aboriginal people are in many respects behind the eight ball in the Northern Territory.

Thank you. If we could turn to page 90 of the report, please. At the top of that page there is a box section outlining the population based approach to child maltreatment in the US, box 3.2. Can you just read that to yourself, please. Having inserted that case study or example in the report, the authors of the report were making a point that a program like this might be suitable for the Northern Territory?---I think that because of severe issues around parenting we thought the PPP program from – it has been working, we run it in Gippsland in Victoria, in one of our most disadvantaged communities, and it has had a lot of success as far as working with the most vulnerable and disadvantaged families. We thought it actually focused on parenting skills, and providing parenting skills to parents, and it wasn’t about – it’s about positive parenting, and it’s building on their parenting skills rather than going in as a tertiary system and saying, “You’re a bad parent so we’re going to take your children.” Because at the moment it seems that child protection only have one response: to judge parents as not being good parents and take children away, and then order that they undertake, you know, what the court ordered. And quite often our families – there weren’t the services to – particularly in remote areas for them to access, so how do you access parenting services, drug and alcohol, family violence services in a remote community to get your children back home? So the best approach obviously is to be able to work with families around understanding good parenting, about the importance of the developing brain. If you’re having a baby and, you know – you know, involved in drinking or family violence, how that impacts on the developing – you know, the baby and so it applies to all aspects of child development.

COMMISSIONER WHITE: Has the PPP program been – has an aspect of it been particularly devised for indigenous communities?---Yes. They developed – the one in Bairnsdale was done by the Gippsland and East Gippsland Aboriginal Co-operative down there. And so they were one of the pilots to adapt it to Aboriginal. But I still think it would need a lot of tweaking for the Northern Territory.

So is it more regionally focused?---Local focused, yes.

Yes. So it would have to be developed especially – perhaps a different one for the Centre to the Top End?---Definitely. I think any program that comes to the Northern Territory. But I think the starting point is to work with the community around how they – you know, and training. It starts with – it should start with training the trainer and training people in PPP – treat the PPP program.


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I’m just a bit interested in how you actually take it. It began with Professor Matt Saunders at the University of Queensland?---Yes.

So do they still run it as a controller for the development of the indigenous aspect to the program or do you buy it? How does it work practically?---I think they buy it. They bought it in – GEGAC is a really unusual community. They actually – many years ago invested in and bought the car park in the main street of Bairnsdale, and so it created an economic base. So with that they buy in things that are different and unique, and try different things, and so they bought the PPP program. Sorry.

MR McAVOY: So ideally an Aboriginal community would indicate that it wanted to undertake the PPP program?---There’s no doubt. I mean, as I said to you – you know, we had people coming up and saying that they – the issue they had is that there were many pilots around parenting, but not ongoing. So people came in delivered the programs on parenting and then left, and what we saw in some of those communities really was around supported playgroups where mums were there, but it was the absence of fathers and so, you know, the PPP program – programs need to engage men and the role of men in parenting children because, you know, all children need a father in – and, you know, all the evidence suggests that men, Aboriginal men particularly, in the role of parenting children can improve outcomes, longer term outcomes for Aboriginal children.

COMMISSIONER GOODA: Ms Bamblett, do you think – you say Bairnsdale had their own economic base, do you think them making that decision themselves made a difference to the implementation of the program. Using their own resources?---I – yes, I do. I think they actually worked harder to make it a success because they were using their own resources. And I think when Aboriginal people are in control they tend – you know – and I think it’s not prescriptive, it’s around more what they want to do, and so they’re more engaged. They were – through the PPP program that they ran they were able to introduce and embed culture throughout it.

MR McAVOY: You’ve heard the expression “do for”?---Yes.

Can you explain what that means?---I think that – yes. “Do for” is people who do for us and not with us. So there’s – you know, Aboriginal people will say, “Do with us and not do for us.” So I think there are many examples of that in the Northern Territory. I think – can I give one.

Yes, please?---Yes. I think we visited the Tiwi Islands, and when we were at the Tiwi Islands the Government Business Manager, who was employed by Commonwealth, who showed us a schedule of – and he said that 82 services flew in a month to the Tiwi Islands to deliver services. While we were there we saw two men come to pick up a young person to go to court, and so they were two justice people and they came, picked up the young person, took him to court and then later that day came – brought him back on the plane back to the community. So to me I think that if you looked at those 83 services that fly in, if you gave the money for those community – for those services to fly in, if you gave it to the Tiwi Island


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people and for – say, came in the vicinity of 1 million, between 1 and 5 million you gave it to the community, how would they better, you know, utilise those funding and how would they actually distribute and get brokerage in it or contract in those services? And I think for too long – I think too many people do for us, and we saw many examples of people flying in and the Tiwi Island people said to us that they really were struggling to get people to mark the ovals, because people were getting to a stage where the contractors that were coming in were paying them to do things that they – people didn’t want to mark the football oval, they all wanted to be paid to mark it, and they wanted to be paid to umpire, they wanted to be paid to do – and so I thought that was very disempowering for the community.

Thank you. I will come back to that for some further discussion later. Can we look at the next heading: Why Go Beyond Public Health. Can you have a look at that first paragraph, please?---Which one, sorry?

Can you look at the first paragraph, under the heading Why Go Beyond Public Health?---Okay.

And if you can then read the remainder of that page, please. Okay. Are you able to - - -?---Did you want me to read the whole page, or just - - -

Yes, the whole page. Have you finished?---Is that the whole page?

Yes, that’s the whole page?---Okay.

Are you able to explain a little bit more what responsive regulation is?---No. Not from that. I think it may be a Howard question. It’s a theoretical or a - - -

If we turn to page 91, please. Towards the bottom of the page you commence the discussion about an integrated framework for protecting children?---Yes.

And then on page 92?---Mmm.

If you could read the first paragraph to yourself, please. So that is a description of an integrated model for child protection?---Yes. And - - -

In fairly short form, but that’s the description. And if we can just have a look at the figure 3.1, please. Can you explain that figure for the Commission, please?---We – in the child and family welfare system we really tried to look at early intervention, prevention and the tertiary response. And so this diagram really sort of starts at level 1 where families are meeting the needs, and so that can be formal and informal. The second level is around vulnerable families with future problems, where you provide assistance to the parents to stop the problems from occurring. The third is for at risk families, but families that are open to support that can meet the needs of the children, but need assistance. And so are open to services working with them. The fourth level is at risk families able to change, but not open to support, but will comply with statutory involvement. So some families will willingly undertake support. Some


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families don’t want to do it unless the court mandates that they undertake it. The fourth level is at risk families able to change, but not open to support, but I ..... the fifth one is at risk families that cannot or will not meet children’s needs. And so they are really the families that we are working with constantly. And they are the ones that the court will mandate that they have to undertake particular orders. So drug and alcohol, if the family are homeless, be found accommodation. So – but these are families that often will refuse to make the changes, and where orders are put on children. So that’s the tertiary system at the top.

So if we look at the bottom level, that’s the universal supports?---Yes. And so that tends to be obviously at the moment, you know, maternal and child health, early year centres. And so our approach was to give them – the early years more supports, to be able to support vulnerable families rather than just be the notifiers. So if they had the capacity to work better with families in those child care centres, in the maternal and child health centres to be able to work with some of vulnerable families, then rather than have the only ones that work with vulnerable families are the ones that are at the tertiary end of the system. So everybody in every system starts to take responsibilities for working with vulnerable families.

And the extent of the effort that – into the universal services has an effect on the other levels?---That’s right. So you would actually – at the moment all the services are in level 5 so we would say you need to tip this on, and have all the resources in the bottom half of it, so that we can actually prevent families from going into the – so we would stop being the ambulance chasers, waiting at the top for families to fall off. And so it means then that if families are struggling they can go into a service and know that they can get the support they need to keep their children safe. But you need to have a service system there, you need to have housing. And I think from all my experience, unless the Northern Territory does something about the housing situation in the Northern Territory, the situation won’t change for Aboriginal families.

Well, I will just ask you to expand on that a little bit?---Okay.

What are the – what are problems with the housing situation that you perceived – and I understand your perception on this is from the community visits that you did in 2010; is that correct?---We – we – we visited a number of communities and so we saw, firsthand, overcrowding. We went through – we visited families on communities, we saw housing where up to 20 – between 20 and 30 people were living, co-sleeping. Children sleeping on the floor. And I think it’s been alluded to in the report where there was faeces on the ground, dog faeces on the ground. It was conditions that no child should live in, but Aboriginal people in the Northern Territory live in, within our Aboriginal communities. Overcrowding, not enough housing, and not enough accommodation. Imagine being a young parent having a baby and coming home to a house where there are 20 people living, and imagine if the court orders that, you know, that family needs to undertake parenting training and how would you work with them in a house with 20 or 30 other people? How would you, you know, ensure the safety of the child when everybody’s co-sleeping? So I


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think, you know, the Northern Territory really does need to address the chronic housing shortage and be able to address – and particularly give young parents the best opportunity to become good parents by providing them with appropriate accommodation and housing to be able to bring up children safe.

Is it possible to indicate how high a priority the housing situation is?---I would put it as the top.

The top priority?---It is – it was chronic, it was – I – we – I work in child welfare in Victoria, and we know that if somebody has got accommodation – and it goes back to Nugget Coombs: a house requires a home, which requires a job, which requires an education, which requires a certain, you know early years, and so – which requires then a house, which requires a home. Everything has its basis in having a home and being able to nurture and look after children. And Aboriginal people for years have lived on the land but now we’ve put them, you know, into housing and homes, but the housing and homes we saw in Wadeye, they pointed to a house that had just been built – you know, finished being built and before they did finish putting everything in, 20 people had moved in. So it shows that there’s a high level of need for housing, and I don’t think that just goes for remote areas. I think it goes for Darwin as well as Alice Springs, Katherine.

Do you know if that housing situation has improved since 2010?---No. Not – but the data indicates, and reports from Children’s Commissioner indicates that homelessness is still the biggest issue in the Northern Territory. So - - -

Can we turn to page 95, please. Page 95 shows a summary of the chapter. Can you just read the first paragraph to yourself, please. Is it correct to say that in inserting that first paragraph in the report that you were saying to the government that the system really needs to be turned on its head - - -?---Yes. Massively.

- - - as you describe with the diagram?---Yes.

With the integrated framework. Is – would it be fair to say that you were suggesting that there needed to be a complete overhaul of the system?---When we released the reports we did put out that there was a tsunami of need within the Northern Territory with regards to Aboriginal families and children, and I think that our report really graphically highlighted in – on many fronts how badly the system was delivering on outcomes for Aboriginal people in the Northern Territory. And I think that, you know, it’s concerning that we don’t – in a lot of those Aboriginal communities that they felt that they had lost the power to make decisions, that they had no control over the destiny of their own communities, and so I think it was disheartening to, you know, have Aboriginal people feeling so disempowered at the time.

So the message you were sending is that there needed to be a philosophical shift as well?--- I think that – and I think that – and I mean – I guess, in Victoria because we have, you know, a Premier that’s committed to self-determination and committed – and making statements about self-determination, and we also have a Premier that has


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said that he’s prepared to enter into a treaty with Aboriginal people, and I think that at the moment because we in the child welfare sector are enjoying so many things around, you know, funding for cultural support plans, funding for return to country, funding for Aboriginal guardianship to transfer over, there has to be some – and that are all indications of self-determination. But I think in reality what protects those things, because the next government – and same with the Northern Territory, good things happen for Aboriginal people, and then the next level of government comes in and things change for Aboriginal people. How do we protect Aboriginal people and how do we pursue self-determination? How do we make this not about disadvantage but about justice, about human rights, and how do we ensure that Aboriginal people in the Northern Territory insurance the same basic human rights as all Australia’s First Peoples? And how do we ensure – how do we build self-determination on an economic base? How do we ensure that Aboriginal people are employed in jobs in the main street, that if we are 75 per cent – you know, if we are a large part of the population here, why aren’t we a part of the industry and the fabric of the Northern Territory?

And if you could look at the indented paragraph?---Yes.

Does that – I mean, that paragraph is fairly critical of the Northern Territory Families and Children?---Yes.

Isn’t it? Yes?---It was written by somebody from NTFC.

Well, I was going to ask you to look at the footnote?---Sounds like it, but - - -

If we just scroll down to the footnote at the bottom of the page?---NTFC Barkly. Yes

So that is the Northern Territory Families and Children Department?---Yes.

And that was somebody from one – that was that regional office?---Mmm.

Barkly regional office submission to the - - -?---Inquiry, yes.

The Inquiry. Did you find that there were many people working within government who were concerned about the way in which services, child protection – the child protection system delivered services to the Aboriginal community?---I mean, it’s fair to say that there were concerns from everywhere. I mean, there were concerns from foster carers about, you know, their treatment. There were concerns from child protection workers around the workforce and, you know, the sheer challenge that they had. You know, the workforce – they talked about people coming from overseas to work here that had no knowledge or understanding of Aboriginal – and were put into positions to work with First Peoples. And didn’t have language skills, didn’t – you know, have the practice skills to be able to – and, you know – but, you know, the points that they raise really are about: if you keep investing in the system, and the system that removes children, and not invest in the community to prevent


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children coming in from the system, if you don’t have investment in playgroups, if you don’t have investments in building parenting capacity, in supporting families in having culture – you know, cultural activities funded and resourced, so that people can enjoy what it is that is important to them rather than, you know, have Child Protection come out and remove children and – you know, because we know that placements for Aboriginal children are very expensive, and particularly placement for children with disabilities or complex behaviours. No child protection system really wants to have any child in the system, but if there’s no choice – the thing is that what we need to do, really, is to have a system that stops the amount of children that are coming in, and the best resource and the best collateral asset that we have are the families and the communities themselves. So it’s just a bit of a no-brainer: you have to invest in families to keep children safe and to be able to create a better future for all the Northern Territory.

Yes. Thank you. If we could turn now to chapter 4 about the particular needs of Aboriginal people. In this – I’m going to try and summarise it briefly. In this chapter the report discusses the governmental contact and the impact upon Aboriginal people and the recent inquiries, before turning to discuss the determinants of social and emotional wellbeing. And that’s at page 110. Can you read the quote there to yourself, please. Could we turn to page 111. Can you read the first paragraph there on page 111. Those two paragraphs describe what is meant in general terms by the term determinants of social and emotional wellbeing; yes?---Mmm.

If you read the last paragraph on that page, please. And that paragraph sets out, really, the determinants at play in remote Northern Territory Aboriginal communities?---But I certainly want to go on the record to say that we really did visit the communities where there were high needs and Child Protection notifications were very high, and we did hear of many communities that were doing really well in the Northern Territory so it’s quite harsh when you read a paragraph like that, and we tend to judge all communities to be the same. So I think it’s important to say that there were many communities we didn’t visit because they didn’t have as many child protection concerns as some of the ones we did visit. Certainly that equates, but what’s disappointing, and I know that in 2009 the Victorian government did The State of Victoria’s Aboriginal Children and did a report on, and what it found was that Aboriginal children in Victoria at that time experienced more – more traumatic events in their life course than all of Victoria’s children, because they experienced more funerals, more deaths, more illnesses and poorer life outcomes. So I think when you look at that diagram you had before, and you think about – that’s an adult’s view, but what’s the system like for a child? And sometimes we have to look through the lens of a child and a young person and when we’re looking at particularly the outcomes for children and adolescents we have to think about what’s it like living – for a child or a young person living in these communities? And the reality is that we have to change, we have to change these communities not – not because we want to, you know, save money: we have to be able to save lives, and be able to have a better future, and create a better future.


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Going back to what you said before about housing, I take it you would say that housing is a – the single highest priority in terms of the determinants of social and emotional wellbeing. Does education also rate highly?---Of course, yes. I mean – again I myself – and I think a lot of Aboriginal people who have benefited from – know that to be able to make changes you have to be able to take on the white man’s education, to be able to take it up to them, to be able to change things. It’s people like yourself – meet other people that have taken on an education and being able to fight for Aboriginal people. But it’s about – in communities having learned governance, and getting Aboriginal people to be able to skill, to be able to stay in communities. I think that the real issue was the schools were only seen for the children, you know? What about for the parents? Could we better use the schools and could the schools be a 24 hour resource to the community to be able to run programs, to be able to do different things? Don’t know. It seemed like there were a lot of restrictions around facilities that were viewed as the community’s, that they were only facilities for the funders, and that the Aboriginal people couldn’t access them out of hours. But it’s certainly – we thought that they could be better utilised, the schools. But it was disappointing to see many of the communities, that children – the schools were empty. Children – parents would tell us, and grandparents would tell us they walk them to the school, and the kids would run out the back and be in the bush all day and so – and we talked about, “Well, what’s the alternative?” Are alternatives having night school where, you know, that may fit better in with community life rather than, you know, restrict doing everything by a regimen that’s – you know, dictated by a system again.

From page 113 onwards there is discussion about the Inquiry’s observations. On page 114 there is discussion about nutrition, substance misuse, violence and socioeconomic disadvantage and employment. On page 115, then, there’s discussion about grief and loss, and parenting. At the bottom of page 115 there’s a discussion about recent developments and their impact on the Aboriginal communities. Can you just read to yourself those two paragraphs. Ms Bamblett, in the first of those two paragraphs you comment on the reform of the local community councils and describe it as a major change. Can you just expand on why you saw it as a major change?---I think because it was an opportunity to bring in – to create opportunities for work and employment opportunities for Aboriginal people. And so the shire councils meant that they would have people employed in you, you know, doing the rubbish and cleaning, and so it was employment opportunities, and it provided an opportunity for communities to be involved in local, you know, council affairs. But we didn’t see a lot of that, because they were only just implementing them as – when we were there.

And you also refer to the 20 Growth Towns Project?---Mmm.

Do you recall what that project was?---I can’t remember off the top of my head. I know that the Commonwealth was looking at – and maybe someone from government can talk on the growth towns, but it was – the Commonwealth was investing in the 20 growth towns across – there was quite a lot of anxiousness from communities that weren’t in the 20 growth towns. You know, weren’t going to be getting the same sort of resources and services of those 20 growth towns, and a lot of


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people felt that they were being set up so that they could actually move people from smaller communities on to them and get – move – you know, close those, some of those smaller communities down. So there was quite a lot – level of concern within communities around those.

Do you know if the 20 Growth Towns project was something that was initiated by the Aboriginal communities?---My understanding, no, it was by the government.

Then page 116, there is some discussion under the heading Self-Determination and Cultural Capital?---Mmm.

Can you read that paragraph, please. Sorry, both those paragraphs?---Mmm.

Is there anything that you can add to those observations?---No, but it’s pretty obvious, and we use the research from Chandler and Prouix quite often to talk about that: that self-determination does work and that Aboriginal communities being able to self govern. But I think there are particular challenges in the Northern Territory, because the reserves and the missions were set up predominantly by church based organisations, and when those church based organisations moved away I think there were issues around how to – governance issues, and so being able to set up governance issues in communities and when we went and visited the NT – the Northern Territory Intervention had put government business managers on each of the communities and when we went to speak to – ask to speak to Aboriginal elders within the community, or people who we should consult with, we were sent to services, not individuals. So from my point of view there was a real sense of there wasn’t a leadership or perceived leadership, and that concerns me because I think without – self-determination to me is having Aboriginal people feel there is a sense of leadership within their communities, and I didn’t get a sense that our people felt that they were the leaders or that they could even make decisions, that the government business manager was the person to speak to, or the health service, or – and so that to me is a major – you know, when thinking of a way forward how do we build that back into our communities?

Is – do you think that disempowerment is related to people also having a sense of hopelessness?---Definitely. And I mean, I think that when you look at this and you look at Prouix, they talk about – that the police are owned by the community, the teachers are owned by the community, the services are owned by the community. That’s not the case in the Northern Territory. They don’t own any of those services. They are for them. And you spoke before – a do for approach. We’ve got a lot of services in communities doing for, but they don’t often recruit local Aboriginal people. And so local Aboriginal people aren’t getting jobs in local services, and so - - -

Well, that’s a good point to go – place to go on to the next heading, which is The Need for a Different Approach?---Mmm.


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On page 117, could you read the third paragraph. It’s the paragraph commencing, “The Inquiry notes”, and then the fourth paragraph?---Mmm.

I mean, those paragraphs encourage the government to build on the existing strengths within the community, don’t they?---And I think it would – we always believed that they would build – build in an Aboriginal child and family welfare system so that they would – and, you know, our recommendations were about establishing a peak agency, having an Aboriginal – having Aboriginal and Islander child welfare organisations, and we recommended one in Alice Springs and one in Darwin. The – the recommendation around the peak agency, the government took up, but I think that service went for two years and then the government defunded it or – and so there is no Aboriginal child welfare response here in the Northern Territory. And I think that is the Territory’s shame. I think it’s terribly embarrassing to know that the state with probably the – one of the biggest Aboriginal child welfare issues doesn’t have an Aboriginal child welfare service.

Well, that leads us straight to pages 122 to 129. If we can just stay on page 122. In those seven pages, eight pages, the case is made by the Board of Inquiry for the establishment of an Aboriginal child care agency or agencies?---Mmm.

What role did you have in mind that an Aboriginal child care agency would have filled in the Northern Territory?---I think yesterday, when I demonstrated what we do in Victoria, I think it was around trying to get a sense that the Territory, too, needs to have a plan as to how it delivers a service system response for Aboriginal children. And so if it is around how do you respond to at risk children when there’s notification for an Aboriginal child, how do you actually build an out of home care system, how do you build early intervention and prevention services, how do you actually ensure that – if families are struggling, where do they go to for support, were do you get parenting – Aboriginal parenting resource services? I think a good starting point is to look at a lot of who gets funding now to deliver on Aboriginal child and family welfare, and taking back those services and giving them to the control of Aboriginal people. In Victoria the Victorian government has committed to transferring all resources that are for Aboriginal children back to Aboriginal community controlled organisations. So – and they have invested in a transition unit and all of the community sector organisations in Victoria have signed off a document called Beyond Good Intentions which is about transferring their commitment to say that all Aboriginal children should be managed by an Aboriginal organisation. So that is followed in New South Wales as well. So other states and territories are saying that Aboriginal control needs to be with Aboriginal people.

Yes. And so then at page 130 of the report there’s a call by the Board of Inquiry for the establishment of an Aboriginal peak body?---Mmm.

Is that the same as the Aboriginal child care agency?---No. A peak agency, at the time, we thought could work with the Territory government on implementing all the recommendations. So there were a number of recommendations that related to Aboriginal – around workforce, around, you know, plans – strategic plans for


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Aboriginal young people as well, and so there were quite a lot of recommendations that we felt a peak agency could work with NT Government to implement but they were specifically, in the first instance charged with developing – getting two Aboriginal and Islander child care agencies established. So their primary role in the first instance was to establish two Aboriginal child care agencies. But I think from the word – from the moment that the peak agency was established, I believe they were being – there was pressure put on them just to begin service delivery, and to start finding foster carers and delivering on foster care targets, which is not the role and function of a peak agency.

The role of the proposed Aboriginal child care agency was being foisted on the peak body?---The peak agency.

That’s your understanding of it?---That’s – at that time, yes.

Okay. You weren’t here though in the Northern Territory while that was happening?---No. We had a staff member come up and do a period of time with safety at the time. And safety is the - - -

So if we go now to the recommendations, if we can go to page 26, please. The report makes 147 recommendations?---Mmm.

And they are categorised according to urgency?---Mmm.

So clearly there were some that you thought required immediate attention?---Mmm.

Some not so urgent, the semi-urgent and others which were important but not urgent, with a two to three year time frame. If we can look at – scroll down to recommendation number 1. Recommendation number 1 is that Northern Territory Families and Children undertakes a process of engaging its entire workforce to commit to a strategic plan which clarifies its mission and includes the articulation of those in principles under which it operates – it – under which it will operate. That recommendation, is that an invitation – was that an invitation to the Northern Territory government to adopt the integrated framework?---I think it was around getting – well, initially we had the Victorian – when we launched – when we put the report and tabled the report it was really around the government sort of committing to take on all the recommendations, but that one was really around trying to get the workforce of NTFG to really engage them, because we felt that throughout the whole journey they had copped quite a shellacking, the NT workforce, and there was a sense of necessity to make sure that we were all on the same page as far as going forward. But the real commitment that we wanted from – was from the Northern Territory government, to really invest – to match the investment of the tertiary with the early intervention.

And read together with the recommendation number 2?---Mmm.


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Those two recommendations really address what we call before the overhaul of the system?---Yes. And I think that, you know, I have sort of failed to acknowledge the other two Commissioners and their commitment to Aboriginal, because they were unfaltering in their commitment to ensure that we really came up with an approach to – and got to hear the voice of the community, and they were really passionate around their commitment to make sure that whatever we came up with was a framework for Aboriginal people that they felt included, that they felt that this system – that we had heard what they – their issues on the ground and that we were going to come up with a process and a system – an approach and a number of recommendations that would actually make a change. And so when we talked about developing measures and frameworks that were going to be reported against annually, we sincerely believed that the NT government would deliver on that and, initially, I think they did. I think they began very, you know – they had a very clear process that they were going to deliver on all the recommendations. Unfortunately that momentum was lost when the – a new government came in.

Recommendation 3 is - - -?---Yes.

- - - the first of the urgent recommendations?---Yes. And so they didn’t develop an Aboriginal child care agency. They did develop an Aboriginal peak agency. We really – all the way through, my major drive was to get an Aboriginal and Islander child care agency up here, because I was the chair of the Secretariat of National Aboriginal and Islander Child Care from ’97 to 2007, and we were constantly asked about the Northern Territory and we were lobbied many times about making sure that the Northern Territory got additional resources. And, sadly, the two Aboriginal and Islander child care agencies in the Northern Territory were defunded by the Commonwealth, and the funding not picked up by the Northern Territory government.

And recommendation 4 follows on from recommendation 3?---Mmm.

It provides for the recognition and the Care and Protection of Children Act?---4.3 is around that there be an – the acknowledgment of the need to consult with an Aboriginal agency when children are involved in child protection. So it was around ensuring that an Aboriginal agency became the recognised entity or be consulted when a child – an Aboriginal child comes before Child Protection. And so that the Department would create a relationship with an external Aboriginal organisation to be able to consult on matters of risk for Aboriginal children and to consult – have that organisation, or that representative, come and be present when a notification was delivered for an Aboriginal child.

And recommendation 5 relates to the discussion about the role of an Aboriginal peak body?---Yes.

And we’ve already had some evidence about that. How – in your opinion, how critical was the establishment of the Aboriginal child care agency to the transition into the integrated framework for child protection?---I think that the Aboriginal and


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Islander presence, I mean particularly in Darwin, and Alice Springs, having a dedicated Aboriginal and Islander child care – or Aboriginal and Islander child care agency then gives you the capacity to be an advocate, to be able to be representative, to be able to develop programs and initiatives to be able to work with a number of stakeholders and develop partnerships and relationships. To be able to do training, to be able to run cultural programs, and to be a resource for the community. So I think there are numerous benefits for having an Aboriginal and Islander child welfare – particularly in the major cities. But I think in remote communities it’s also important that those Aboriginal Islander child care agencies have a relationship with local communities: that they are a resource, that they’re able to provide support, that they’re – and, you know, I think that integral in the Northern Territory is to have your own Aboriginal Children’s Commissioner as well. We have an Aboriginal Children’s Commissioner and he – you know, the whole – he keeps the system. And he keeps – makes sure that not only is – are government, you know, delivering on their outcomes for Aboriginal children, but we in the sector as well are delivering on outcomes for Aboriginal children.

Thank you. I’m just going to move away from the recommendations now. Can you – can we please turn to page 228 of the report. Can you just have a look for a moment at the boxed discussion on that page. Do you recall that discussion?---Yes.

That section is titled Does the NTG, Northern Territory government, significantly underspend on Child and Family Services? And as a result of a submission and oral evidence from the NT Council of Social Services, you were able to get access to some information about the Commonwealth Grants Commission funding for the Northern Territory. Do you recall whether you tried to initiate any discussions with the Northern Territory government about that what you’ve described as an underspend?---Not off the top of my head, I can’t, but - - -

Perhaps if - - -?--- - - - I remember at the time I was having the discussion, and because the Child and Family Services were in the Department of Health, there was – there were real concerns about the NTF having control or total budgetary control of their budget, and there were concerns about how those decisions were being made at the time. And so – but every state and territory known has, to my record, an underspend in the area of child and family welfare, and so I find it really concerning that any state or territory – but there has been – NTCOSS has also not so long ago done another paper and done – looked at this issue again, and I’m not sure of the findings of that, but it would be interesting to see if they are similar to what has been found here today.

You accept, though, if you look at the second last paragraph from the bottom, that the Northern Territory government has discretion as to how it uses its share of the Commonwealth Grants Commission payment?---Mmm.

Thank you. The last line in that – the last sentence in that boxed section speaks of a moral imperative. The sentence speaks for itself, but the Board of Inquiry, I would imagine, is saying to the government that the circumstances in the Northern Territory


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dictate that - - -?---Well, given the level of need and given, you know, the sheer numbers and, you know, all that we heard from – you know, the child protection workers and, you know, we heard from carers about that they didn’t get adequate funding and, you know, there were just so many times where people – it was all put back to not enough money in child welfare and then all of a sudden you read a report where there’s an underspend. So it just defies understanding, as if you’ve got a system that’s imploding because of resource implications and yet there’s an underspend.

Do you recall if the Board was given access to the Northern Territory government budget papers?---Not specifically, but Howard did a lot of work – so it may – can I ask that that question be given to Howard when you recall him back?

He may give evidence later. But we will deal with that. The report then proceeds to consider the statutory intervention processes in chapters 7 and 8, followed by the review of the out of home care in chapter 9. Chapter 10 deals with the legislation in the courts, chapter 11 deals with interagency collaboration, and chapter 12 deals with the workforce. Finally, there’s some discussion about the way forward, but what I would like to do is draw your attention to appendix 6.1 of the report.

COMMISSIONER WHITE: How are we travelling, Mr McAvoy? I’m looking at the time. We have been here for an hour and a half. Do we need to take the break now? Are people flagging a bit, or wait until 11.15?

MR McAVOY: I have only a few more questions at this point.

COMMISSIONER WHITE: Right. You finish your questions then and I will see who wants to ask some questions of - - -

MR McAVOY: Thank you, Commissioner.

Appendix 6.1 is a table setting out all the services and supports in the Northern Territory in the child protection area. That table covers 38 pages from page 615 to 653. The purpose of mapping out those programs, it was said in the introduction to the table, was to show that there was a large amount of activity. Is your – do you have some recollection of the table and, in particular, how many of the services and supports in the Northern Territory were being carried out by the Northern Territory government and non-Aboriginal NGOs, or non-government organisations?---Clearly, one of the things that we really found was a lot of duplication and not – a lack of coordination, programs not talking to each other and inconsistency in approaches to Aboriginal, and so – but a lot of the – some of the services that were most successful were the ones that actually engaged people on the ground, and so, as I said, with the 83 – 82 services flying into Tiwi Island, a lot of those would be those services that are flying in delivering services. And you would – you would wonder if they wouldn’t be better delivered by communities. As I said, the Aboriginal health services were in each community. Why – a number of these programs couldn’t be attached or delivered by the local – by that local Aboriginal


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health service and funded through the local Aboriginal community-controlled health organisations, I can’t understand. And my own personal experience with the Commonwealth government is that it’s very difficult for an Aboriginal organisation to get funding through the government, and I’ve seen mainstream organisations put in the same submission that we’ve put in and be successful. So I think Aboriginal people struggle to get, you know – struggle in having success to get funding for Aboriginal programs, that there’s clearly a view that mainstream or non-Aboriginal people are much better at delivering Aboriginal programs than Aboriginal people are.

That’s the conclusion that you’ve reached and you think is - - -?---Well, I think that – and I think that the inability to demonstrate there’s no criteria when submitting for funds. People don’t have to demonstrate that they are working in partnership with an Aboriginal community or they’ve consulted or they are going to work on the ground. And even when they put in the tenders and say they are going to work in partnership, quite often those partnerships aren’t put as a contractual reporting obligation back, so they don’t have to demonstrate that they’ve actually worked with Aboriginals. So some of the criteria, when the previous Commonwealth government was in and the previous Aboriginal Affairs Minister was in, she put in a particular criteria that you have to demonstrate that you’re able to work with indigenous and disadvantaged Australians. That then had a number of people then demonstrating that they had to have a partnership, but when it came to reporting back about those partnerships, those partnerships were never really, you know, rigorously examined to see if they were in existence on the ground.

Thank you. Now, if I can just take you back to paragraph 12 of your statement?---Mmm.

And you say there wasn’t enough time to fully investigate all of the issues that came before the Board of Inquiry, and there were a number of issues that you would have investigated further had you the time. At 12.1 you talk about children with disabilities?---Yes.

At 12.2 you talk about children with neurodisabilities, and you’ve annexed copies of reports at annexure 2 and 3 from the Children’s Commissioner in England?---Mmm.

And a report about – a report from the Permanent Care Forum in 2016 about solutions-focused justice for young people. And I can tell you that we will be hearing some more detail about that later today?---Yes.

Family violence, the roles – the role of the courts?---Yes.

And anomalies between Commonwealth and Territory funding. If you had time – are you able to estimate how much extra time you would have liked to - - -?---I think that in hindsight, and currently in Victoria we have a Family Violence Inquiry. We had an Inquiry and we’ve got now the Premier committing to a response. And so in Victoria, we are starting to look at what does that response look like, and in delivering on true self-determination, we are starting to explore what parts of the


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system in family violence. And so for us, it is about how do Aboriginal people be involved in true systemic reform and what parts of the system can we make the most difference if we are involved in. And so in all systems, we need to ask us, as Aboriginal people, how do we actually make the most difference. And I think if in developing and designing a new system we didn’t go into designing an actual system that could work in those communities, and I think having had more time developing models that you could apply and put into communities, I would have loved to have done that work to look at how do we actually put better systems and better models into each community and how do we pilot them. And I think, at the end of the day, we’ve got to be able to put those models into communities.

And do you think that’s something that this Commission should be concerned with?---I think it would be great. I would love the Commission to look at how do we actually put the early intervention and the prevention and strength and culture and see culture at the centre of everything. I think culture is often put as an add-on, that Aboriginal culture – but we use culture in every aspect of our work. We use it in healing and therapeutic. We know that Aboriginal children, when, you know, asked by psychologists what makes them feel safe, quite often an Aboriginal child – well, 85 per cent of children draw the Aboriginal flag. So for us in Victoria, we know that culture – we use culture all the time as therapeutic. So I think that in the Northern Territory, everything has to be embedded and driven by culture and we have to be able to have programs and services that build on culture, not see culture as a deficit.

And I think we might finish your evidence on that note, Ms Bamblett?---Okay.

COMMISSIONER WHITE: I just have a quick question I would like to take up with you, Ms Bamblett. In paragraph 21, you draw particular attention to the deleterious effects of gambling on the wellbeing of children in the Northern Territory. Of course, given that you did your report a few years ago now, have you had an opportunity, not necessarily to revisit it in the Northern Territory, but if you had well and good, but have you seen any activity of that kind in Victoria?---In Victoria, yes. The Victorian government funded a number of organisations to work one-on-one with families around gambling. So they set up an Aboriginal response to gambling in Victoria because, with the advent of gambling machines, a lot of Aboriginal people, their income was, you know, going into the machines. But we’ve seen a massive difference in having education awareness, promotional material and working one-on-one with communities and families. But I think in the Northern Territory it was so entrenched. It’s a response to boredom. There’s no activities, like, there’s nothing for communities to do. So card games are the norms. We heard in one community they told us of an EFTPOS machine on a pension pay day, and these are not big communities, but that $60,000 could go through the EFTPOS machine and 20,000, perhaps, could go into the shops, yet the community was in abject poverty. So gambling, you know, the illegal drugs being smuggled in, those issues were really big issues.

What was the nature of the gambling when you did your investigation that was most prevalent?---It was card games. There would be card games at just about every third


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or fourth house and, you know, while people – and these card games could go all day and all night. And people said that you could win up to $10,000 in a hand, whatever that means.

Would it be your experience, then, from the Victorian experience, added to the Northern Territory, that that kind of initiative of education might be of some assistance?---I think it has got to go hand in hand with coming up with recreational – other recreational – I mean, as I said, when we went to Hermannsburg, there’s only one street light in the town at night, and that was the social hub for the community. So to me, there are many things that need to happen in those communities. And so, you know – and in Victoria, we are investing in recreation and sport and getting Aboriginal children into that and seeing that as something that needs to be funded. But, you know, how do we invest in things that actually make the community feel good. And so video nights, movie nights, doing things that are different that engage the communities so that there’s an option or alternatives to gambling.

Solicitor, do you have any questions for Ms Bamblett or do you want to make your responses by submission?

MS BROWNHILL: I do have a few questions. I expect to be quite brief, just in relation to Ms Bamblett’s work with the Aboriginal child care agency. It won’t take long.

COMMISSIONER WHITE: I will take the break now if there are going to be other questions of Ms Bamblett. Is that the case?

MR BOULTEN: I have some.

MS GRAHAM: I have some, too.

COMMISSIONER WHITE: Yes. Alright. Well, let’s take the morning break now, then, and we will return at half past 11. Thank you.

ADJOURNED [11.11 am]

RESUMED [11.32 am]

COMMISSIONER WHITE: Yes, Ms Brownhill.

<CROSS-EXAMINATION BY MS BROWNHILL [11.32 am]

.ROYAL COMMISSION 20161013 P-217 M. BAMBLETT XXN©Commonwealth of Australia Transcript in Confidence MS BROWNHILL

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MS BROWNHILL: Ms Bamblett, you gave some evidence yesterday about the Victorian Aboriginal Child Care Agency, and I just wanted to ask you some questions about that agency?---Yes.

For the benefit of the Commissioners, it’s at pages 183 to 184 of the transcript. As I understood it, but please correct me if I’ve got this wrong, the Agency deals with child protection notifications across the state, excluding Mildura and Swan Hill?---Yes. Yes.

And it also runs permanent care across the whole state?---Yes.

And you also mentioned that it runs a link-up program across the state. Can you just explain what that is?---The link-up program is the Commonwealth-funded program to work with Stolen Generations. So it’s returning people that were removed during the ’50s – you know, ’50s – ’40s, ’50s and taken away from their families. So our role is to work with families to return them home. And quite incidentally, a number of the families we work with come from the Northern Territory.

And so that aspect of the work of the Agency is something separate to the child protection work?---We see it closely aligned because of the removalist policies that impacted – and so the continuing – and so we’ve learnt a lot from that practice as well.

From the description that you’ve given, is it fair to say that mostly the work of the agency is more directed towards tertiary services rather than the primary and secondary services?---Historically, when I first started, it was predominantly tertiary. We have been able to move a lot of it – a lot intertiary. Our tertiary is mostly with our supported playgroups throughout Cradle to Kinder and a lot of those programs working earlier. So – but, yes, in Victoria, we are very lucky because we have quite a large service system that delivers on early intervention, so the Aboriginal health services deliver maternal and child health, Koori Mental Health work with families in the early years. So we’ve got a much broader Aboriginal service system within Victoria than you have in the Northern Territory.

And just to be clear, the Victorian Aboriginal Child Care Agency engages in that work as part of its core business, if you like. Is that what your evidence - - -?---We’ve dedicated our lives to, yes, in our 40 years of work, to working with families in the child welfare system.

Is the agency based in Melbourne?---It’s based, yes, in Melbourne, but we have a regional office in Morwell. So we provide predominantly family violence, youth homelessness, crisis response in the Morwell region.

Okay. And you mentioned in your evidence yesterday that you have metropolitan and regional workers?---Yes.


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You are able to say how many locations across the state you have those workers?---No, not quite, because in the regions, we have them across the 17 sort of LGAs of Victoria. So we have a worker in each of those regions. So we cover from every part of the state. So we have a worker in – to respond to notifications through the Department of Health and Human Services - - -

So there is at least 17, one for each of those areas?---At least in – well, we’ve got – no. We’ve got two in each of those regions. So we would have, across the state, about 35 workers.

I see. And you also said yesterday that you have some 300 staff who deal with - - -?---That’s right.

- - - approximately 3000 child protection notifications a year. Are you able to give an indication of how many children are in out of home care in your – as looked after by the agency?---Difficult to know. There are 1700 children all up in out of home care. VACCA, in out of home care, we have approximately 180 children that we look after. We run three residential units. So we run two therapeutic units and provide therapeutic interventions in those units and the other one is a level – classified as a level 2 residential service.

Okay. And I presume the costs associated with that care are also part of the Agency’s costs and budget?---Overall budget, yes. So we get approximately 30 million per annum.

That’s – that was my next question. Thank you. So that’s the average sort of budget you are looking at, per annum, for the agency to do its work?---Yes. Sorry.

Just excuse me for a moment. Are you aware of other agencies doing the same sort of work as your agency in the state?---To a different degree, and I think we are the biggest provider. We are sort of, in child welfare, the mother organisation of child welfare. But what we’ve been able to really do is really advocate for other local Aboriginal community organisations to take up further responsibility. And so now the – sorry, Aboriginal organisations are now taking up kinship care, out of home care, and so providing early intervention and prevention and support services for vulnerable and at risk families. But they have the luxury, too, of being – working with vulnerable and at risk families much earlier. So the integrated family service model, they would say they deliver that because – and Mildura, the MADAS, Mildura and District Aboriginal Service, has put a model where their Bumps to Babes program is actually preventing notifications to child protection. So there are models of really good practice across the country.

Okay. Thank you. Thanks for that?---Thank you.

COMMISSIONER WHITE: Thanks, Ms Brownhill. Mr Boulten.


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<CROSS-EXAMINATION BY MR BOULTEN [11.38 am]

MR BOULTEN: My name’s Boulten and I represent NAAJA?---NAAJA.

The statutory basis in the Northern Territory for the Aboriginal Placement Principle is section 12 of the Care and Protection of Children Act. But as we heard from the Northern Territory Children’s Commissioner the other day, the percentage of Aboriginal children in care placed with Aboriginal carers is less than 40 per cent?---Yes.

And remained at or about that level for some years?---That’s right.

So if there was to be a Northern Territory Aboriginal Child Care Agency, would that Agency have particular goals to deal with some of the ingrained, almost institutionalised problems that you spoke about with the placement of children in communities in care?---Yes. And I think part of the dilemma we have in Victoria, as well as other states and territories, is that of – a lot of – a lot of child protection systems think that the Aboriginal Child Placement Principle is only the onus of the government to implement. I think all community sector organisations have an obligation to ensure that the Aboriginal Child Placement Principle is implemented and an obligation to do that, and so as a community sector organisation, how do we ensure that we comply with the hierarchy of placement options around the Aboriginal Child Placement Principle. Clearly, the best solution is to keep Aboriginal children in their families and in their communities. If you look at the evidence from across the whole – you know, every country where there are children of colour, there is an overrepresentation of those children in the system. They go into the system, they are less likely to go home, they are less likely to be reunited with their family and more likely to stay in the system. So we have an issue with dealing with children of colour and so reunificational efforts are less than – so the obvious response is that we need to (1) prevent children from going into care; (2) if they do go into care, do the work to get them home and support children to stay safely in the – that is the best outcome. If children can’t go in, complying with the Aboriginal Child Placement Principle is challenging across the nation because we have a very young Aboriginal population, so the youthfulness of our population – we don’t have an ageing population. If you don’t have an ageing population, then you don’t have Aboriginal families. I think that you have overburdened families already. The families that do put up their hands are quite often looking after, you know, six or seven children themselves, and so taking on – but the obligation, if you established and Aboriginal Child Care Agency, they could develop a pool. They could recruit Aboriginal careers. Their primary goal would be to recruit, assess and train and constantly look at a pool of carers to support. The main reason that people don’t want to put up their hand to care for children is because of the lack of support, the lack of funding and the lack of, you know, opportunities around respite and break. And so we need to look after carers. They are our most valuable resource.

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It can be quite some time between notification of a problem and ultimate disposition of the case by way of court orders. During that period, how important is it for there to be the identification of potential - - -?---Carers.

- - - family carers or kinship carers?---And that’s why having an Aboriginal person attend the notification can start to work with the family to identify who in the family can care for this child and do the assessment. And so do the assessment of that family to ensure that child’s going to be safe. And that – and then provide the necessary supports to make sure, so brokerage dollars for the purchase of, you know, additional resources to make sure the child is able to be looked after and nurtured in that environment.

So often placements with family and kinship are going to be less than perfect, less than ideal, but where services might be able to influence positively the placement with a family, if there are issues to do with over crowding, issues to do with drug and alcohol or gambling or parenting skills, presumably an organisation such as an ACCA could target particular remedies for particular households?---Yes. And, I mean, let’s be very clear, that in our sector, we would never jeopardise the safety of a child and we would never place a child where they would be at risk. But in the Northern Territory, there are particular customs and cultures that are unique to the Northern Territory. We know that you wouldn’t remove a child that was living traditionally on land and was thriving and doing well. You wouldn’t remove them. But what is contrary is you wouldn’t also place a child there. And so why wouldn’t you place a child who’s living traditionally on land and doing – and thriving well with a family, but they don’t meet our western construct of you’ve got to have a house and a home and land and you’ve got to be able to have a front door and a bedroom and all those things. But, culturally, if you’re living on land and thriving and doing really well, and that child’s going to have a really good culture, I think you’ve got to have systems that recognise in the Northern Territory there is a uniqueness here.

The assessment of potential family as kinship carers can sometimes be a very exacting - - -?---Process.

- - - bureaucratic process?---That’s right.

Would such an organisation as you head be able to assist families to deal with things like criminal history checks, child protection history checks, home inspections, medical checks and like?---Yes. We – all of our carers, we go through the whole process. So we work with them around – they have to have a working with children check, they have to have a national police check. We actually, as well, go into their family home. Our role is, as well, to make sure that they’ve got adequate supports. So we provide brokerage dollars for things like, you know, extra beds, sheets, things, whatever the family needs. And our role is to make sure that we visit those families and those carers often to make sure that the children are going to school, they are having regular health checks and that the children are doing really well. And if the


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children aren’t going to school or the children are disengaged, our role is to work with the school and the child to make sure the child is going to school.

When you visited communities in the Northern Territory during the course of your Inquiry, did you get a sense of whether or not the current vetting process was taking too long or was the process itself causing difficulties with appropriate outcomes?---I think it would be challenged because the normal vetting process is that, you know, a child must have a room to themselves or be, you know, co-located with a child of the same sex. The houses we saw with 20 or 30 people living in them wouldn’t fit the criteria, and so quite often they would be deemed as unsuitable for the placing of Aboriginal children.

Did you come to understand that there were commonly care protection orders made by the court here that essentially ordered the care of the child into the hands of the department until they turned 18. So that might be for three, four, five, years. What’s your view about the idea of having such long orders?---I think that – I mean, Aboriginal people for a long time have been really concerned about permanent care orders and there is a lot of discourse backwards and forwards about breaking the connection with Aboriginal communities. But for Aboriginal children that are placed in Aboriginal families with Aboriginal relatives, there’s not an issue. If you’re complying with the Aboriginal child placement principle, permanency planning and having children be permanently planned with as carers – for a number of children, though, the reason they don’t want to go to permanent care is because you actually don’t get funding a lot of the times when you take a child permanently. And a lot of carers just don’t have an economic base to be able to survive without that carer pay to be able to support the child in their care. Now, remember, these are voluntary careers. They don’t actually get paid to be carers. They actually get paid for the needs of the child. Now, it’s an unreal expectation to obviously have somebody take on – to voluntarily care for a child and sometimes a child with complex needs. A lot of our carers don’t want to take on permanent care orders because these are children with complex needs and they believe that if they take permanent care they lose access to a case worker, they lose access to counselling and support and respite and a lot of those services they get if they are involved in child protection. So we have a system that actually virtually forces children to stay on child protection books because the system doesn’t have a process of looking after children in out of home care with complex needs who need, you know, long care – care.

So we heard yesterday about the number of kids on orders that are not complying even with placement. It’s known to the department, but they do nothing and can do nothing practically about it. Would there be some benefit in there being more regular short term orders reviewed systemically and serially by the court?---I think the orders aren’t the issue, it’s the – it’s what’s happening with the families and who works with the family and the case work with the family and ensuring that someone is doing the case management of the family to ensure that families have access to services. The court can put as many orders on family to say you need to, you know, undertake drug and alcohol counselling, family violence counselling.; you need to find a house. How are you going to find a house if there’s no house? How are you


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going to do drug and alcohol if there is no drug and alcohol counselling or you’ve got to wait six months? It’s unfair for a child to stay in a system so long when some of – the service system isn’t there. You’ve got to have the service system to be able to respond to the needs of these families.

Did you find the frequency of placement of Aboriginal children in the large centres, Darwin, Katherine, Alice Springs, with non-Aboriginal foster parents was one of the drivers of self-placement by kids moving back to communities?---I mean, it was problematic around the numbers of, you know, a lot of Aboriginal carers – a lot of Aboriginal people don’t put up their hands to become carers because they are, you know, sort of struggling themselves. So we did see a number of Aboriginal children that were taken away from remote communities and put into – brought to Katherine and different parts – and isolated from their families. We heard of people that – a young mum of spoke of, that her child went into care, when, you know – and for two years she didn’t know where the child was within the system. And so to me, you know, having an Aboriginal Child Care Agency gives you a resource for someone to be able to ring and say, “I need to know”. Children need advocates to know and family need to know who do I contact when I can’t find my kids. People were asking us questions that you would normally ask the head of an Aboriginal organisation or you would be able to direct to an Aboriginal Children’s Commissioner. So not being able to access services, I think, is a serious issue within the Northern Territory, not being – the court – orders were rolled over and over and over again for families because there wasn’t a service system to be able to respond to the family’s needs.

Is there a role for a child to have their own advocate or lawyer in this whole process?---That’s what we did recommend or we did look at because we felt that there was concern that Aboriginal children presenting to the court didn’t have legal representation, that, you know, the parents or – could be seen to have a legal representative and could have a lawyer but the child didn’t have or couldn’t have or be seen to have a voice in the proceedings, which - - -

Should that extend to representation at important case meetings where the child’s future is discussed and perhaps - - -?---And key decisions are made. Yes.

COMMISSIONER WHITE: Sometimes, of course, there will be a situation of conflict between the best interests of the child and the perceived interests of the parents or one or other of the parents, or they are not – so there’s a tension there if the parenting is not good?---And I think it does depend on age as well and age and stage of development. But it’s about – I think we as the Commission felt that it was important that children – that the voice of the child was also heard in the court – in the proceedings.

MR BOULTEN: Are there other states that have remote Aboriginal communities in Australia that have Aboriginal Child Care Agencies doing the sort of work that you do in Victoria?---In Queensland, they have what they call recognised entities. And so they – the Queensland government funds, in different communities, the recognised


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entity to provide the response to child protection and so it – respond to notifications in communities. So I don’t know that any state or territory in Australia would have the complexity of the Northern Territory, though, and could come – so the Northern Territory really has to be unique and come up with something that can apply here.

Would it be also right to say that no state or territory has exactly the same level of service delivery as your state does?---Definitely. I think from my point of view it’s a human rights issue.

COMMISSIONER WHITE: Can I just follow on from that, Mr Boulten, if I may.

MR BOULTEN: Yes.

COMMISSIONER WHITE: Thank you. Probably the nearest equivalent in another state would be the APY lands in South Australia or some – many aspects in Western Australia?---Yes.

Have you had occasion to have a look at how they deliver their - - -?---I think they were struggling. The same as – I think there were parts. South Australia delivers services to the APY lands and so northern – Western Australia, they – some of their community based child protection workers, Northern Territory was looking at that model. I don’t think there’s a lack of trying. I think it’s – it’s – and I think the department staff really try to be innovative and different. I think it’s the powers that be above quite often aren’t flexible enough and don’t understand child welfare. And this really does need an – you know, a concerted effort from a government to understand that you need to fund, really, up-front innovation and working with communities on the ground and can’t just be punitive and putting more and more into the child protection system.

MR BOULTEN: How detailed should a child’s management plan be in ideal circumstances? Should it just be broad and aspirational, or should there be some degree of direction in the actual plan?---In their care plan?

In the care plan?---Yes. In a care plan, clearly, you know – and a lot of work has been done not only about what are the immediate concerns around education, around health, around school, you know, and the care in – you know, who are the carers are, the – you know, ability to provide all elements of the care of this child around – and particularly around their development, around their – you know, the counselling and supports and understanding their trauma. But it also in – Victoria we have what we call culture support planning and it’s around what are the cultural needs of children, and so it looks at – and we’ve been able to apply it to the juvenile justice system too, to look at how do we ensure that the cultural needs of children and young people, both before child protection and juvenile justice, are addressed? And so do the children have a genealogy, do they – and part of the care planning is also around access with siblings, making sure that the connection back to family and community – and that all the work is done to maintain connection to land, country, and culture.


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Are the care plans in your state detail – involve medical and neurological assessments?---The neurological would probably be based on, you know, what aspects or the behaviour of the child or the presenting issues of the child, or based on what’s happened within the family. So it would be if there were family violence, then, you know, we would look at making sure that – but across VACCA we have what we call a healing, we have a healing team that works across all our organisation, so all of our children we look at interventions that are based looking at therapeutically what’s happening for that child. We actually try to make sure that we create therapeutic environments across all of our resi units as well.

What crossover is there between the services and the assessments that you do in your sphere with the common problem of your children being involved in the juvenile justice system? Do you share the information that you get with their lawyers or with the court?---Depends if they are on dual orders. So if they are on a child protection order or a juvenile justice order, then the information is shared. We know that in Victoria a number of Aboriginal young people that are currently in out of home care progress to juvenile justice, so there’s a key bit of work that’s looking at, you know, juvenile justice in Victoria. I was on the Youth Parole Board for a number of years and a number of the young people that were presenting to the Youth Parole Board had a history of being in out of home care as well.

Just more specifically, if a young person was before the court and was to be sentenced, and not yet the subject of any court order in the criminal system, would the criminal court or the lawyers acting for that child necessarily be aware of the fact that a whole lot of things had been done to assist that child under your umbrella?---In Victoria quite – when a young person presents to the court there’s quite a comprehensive history of the child’s involvement in child protection, in juvenile justice that’s presented to the court, so - - -

By whom?---Usually by the lawyers and so – but with regard to dual order, usually because of Child Protection, it takes a higher precedence and the information from Child Protection goes to juvenile justice.

Should there be automatic sharing of information between Child Protection and juvenile justice?---Particularly dual order. I mean, if there – in Victoria if you put a youth parole – if you put a justice order on a young person, then the two must speak to each other.

Would you just excuse me.

COMMISSIONER GOODA: Ms Bamblett, you mentioned the child – Aboriginal child –Children’s Commission in Victoria. Can you tell us a little bit about that?---The Aboriginal Children’s Commissioner. We’ve had an Aboriginal – we had an inquiry a number of years ago, the Cummins Inquiry into the child protection system in Victoria and it made a recommendation that we have an Aboriginal children’s commissioner. And so the Victorian government appointed Andrew Jackomos as the Aboriginal Children’s Commissioner for our state. He’s been there


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three years. He has undertaken to take a own-motion inquiry to look at a thousand children in the care system across Victoria and it’s called Taskforce 1000. He has put – he has also looked at the compliance with the full intent of the Aboriginal child placement principle. Two of his reports will be coming out on 26 October. But he has been getting an overwhelming response of complaints and issues being raised by the Aboriginal community with him. The work of the Aboriginal Children’s Commissioner has far outweighed the work of the whole Commission in Victoria. So I think it’s a key example of how – demonstrates that there is a real need to have an Aboriginal Children’s Commissioner to be able to represent the needs of Aboriginal children.

MR BOULTEN: I have no further questions.

COMMISSIONER WHITE: Thanks Mr Boulten. Does any other counsel wish – yes, thank you.

<CROSS-EXAMINATION BY MS GRAHAM [12.02 pm]

MS GRAHAM: My name is Graham I appear for CAALAS. Is it possible to have on the screen, as a split screen pages 30 and 31 of the report, highlighting recommendations 7.15 and 8.3, please. Thank you. Ms Bamblett, there are two of the recommendations that your report made. Are those two recommendations ways of giving life to the Aboriginal child placement principle, and avoiding the do for trap?---In Victoria – I didn’t talk about it yesterday, but we offer the Aboriginal family led decision making program. So the program is very similar to this. It – when there are key decisions regarding an Aboriginal child, an Aboriginal – a meeting will be held with significant members of the child’s Aboriginal family. There’s a convener from the Department of Health and Human Services and an Aboriginal agency. So VACCA, we have an Aboriginal family led convener and they co-convene the meeting. So key decisions around placement of Aboriginal children, decisions around – long term about access, around – and we will have an Aboriginal elder, we will – most times try and get Aboriginal elders from the child’s family to be in the room with parents, but it is an opportunity to hear what are the protective concerns around the child, and what actions going forward, and to be able to make some key decisions around Aboriginal children.

And the goals – you’ve mentioned some of them, but the goals of a model, like a family group conferencing model can go beyond ensuring, for example, a safe and stable family placement. They can involve other goals like an access plan for parents or other carers, family support and child safety plans?---Yes. I mean - - -

Reunification options, school attendance?---They are a little bit – in Victoria I think they are too – you know, they are really hard to put together and we’ve got to have, you know, the convener from the Department. In Canada they use it much more flexibly, and it’s when the child first hits the system. They will convene a meeting to

.ROYAL COMMISSION 20161013 P-226 M. BAMBLETT XXN©Commonwealth of Australia Transcript in Confidence MS GRAHAM

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bring everybody together to say, “What decisions do we need to make to make sure this child is safe? How can we – you know, what placements?” And it then strengthens the ability to comply with the Aboriginal placement principle, but also – it also starts to say, “Well, what interventions can we put in place, what services are available and how can we build in support?” What natural supports can come from the family and community, and so it gives you an opportunity to start to do things differently. And I think those could work very well in Aboriginal communities.

Is it your view that that kind of model, a family group conferencing model or some other culturally appropriate group decision making model, could work well in the Northern Territory?---I do, yes. I think it’s about the – because quite often Aboriginal families come before the child protection system, and their aunts and uncles and grandparents, the family, the people that could, you know, help them make better decisions don’t know about it. And so it’s the capacity to have those people make the best decisions around the child, and be able to informed and be able to come up with approaches that could prevent the child from going into the system.

COMMISSIONER WHITE: At a practical level - - -?---Sorry.

At a practical level, because Victoria is a much smaller geographical space than the Northern Territory, of course, but even there, getting people together with a facilitator for the children’s – for the family conferencing, how does that operate in the more distant parts of Victoria. That is, not in the environs of Melbourne?---Yes. They are – I talked about the Aboriginal – all the Aboriginal organisations. So 19 of them. I think 10 of them run the AFLDM – no, 17, sorry. 17 run the AFLDM programs. So it’s - - -

You’ve got them in all the various towns and so on?---Yes.

Thank you.

MS GRAHAM: One of the benefits of having a model like family group conferencing, or a culturally appropriate group decision making model, is that it can be an opportunity to break down that distrust between child protection agencies and Aboriginal communities?---Yes.

Would you agree with that?---Definitely. I mean, I think that families feel more included in the process, they get to understand the process, and they get to understand a clear objective of child welfare, and it’s not about taking the child away, it’s not putting them in some system or some place where they have no control: it’s about understanding there are real concerns around the parenting of this child because, you know, having worked in child welfare for so long you hear one version and the mum say, “We didn’t do anything wrong, we never – you know they just took our kid.” You know, “They just took our kids for no reason”. But when everybody’s in the room and you hear the – you know, what has happened, the episode that’s led to – you know, the child being removed, then there’s more realistic


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– good decisions made because everybody’s on the – you know, is on the same page and people are really wanting to make good decisions.

One of the things about VACCA, it seems, is that it’s providing, now at least, quite a holistic approach to child welfare. When you first started you only about 30 staff, is that right?---That’s right.

And you’ve now built it up to, I think it’s over 300?---Yes.

In that process of growing the organisation, are there other services that you’ve expanded into to mean that the approach is a more holistic one?---I think – yes, and I think the major growths have been around doing more around family violence. Leaving care. We recognise that Aboriginal young people leaving care lead much more – much poorer, much more disadvantaged. They don’t have an equity base so often when young people leave care they’ve got no money in the bank. At 18 they are basically able to leave care. The – all the evidence suggests that for a number of years, when I was working at VACCA, that our kids were leaving care at much younger ages. So between the ages of 13, 14, and 15, and – you know, couch surfing across the state. And so becoming homeless and in highly – noticed in the homelessness, the juvenile justice, and so these were kids that were – you know, disconnected from families and communities. So the Leaving Care program was an opportunity, and the youth homelessness programs, and working with young people. And so what evolves when you work within this field is you start to see that there’s a need for services to be able to prevent families from going into Child Protection and or there’s services that you need to provide for after care. And so when children leave – young people leave care, being able to find them alternative accommodation to be able to set them up, to be able to help them find jobs, to be able to work with them about their long term future and make sure they’re supported, you know, into – you know, being able to live independently away from the system is a big job.

Ms Bamblett, are you aware that following your report there was a pilot program in Alice Springs for family group conferencing?---Yes.

And that that program ran for a relatively short period of time before being defunded. You’re aware of that?---It was just starting, yes, just at the end of our Inquiry and was – everybody was talking about how great it was, yes.

And are you aware that the evaluation that was done, to the extent that it could be in the limited time that it operated, suggested that it was a successful or positive program?---I don’t doubt that. Yes.

When governments and non-government agencies are working in the child protection space, is it your view that it’s important for there to be a trauma-informed approach?---There’s no doubt. I mean, in the – and I think you’ve got speakers coming, you know, today, but there’s no doubt that in child welfare that the children we deal with, if your children are living in environments where there’s a huge amount of violence, where there’s an – an – enormous amounts of abuse and some of


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the children that, you know, we’ve had to deal with have had perpetrated against them some of the worst incidents of violence, and abuse, and neglect and to think that they can become thriving and well adjusted adults by just putting them in a good placement is not going to happen. And so it’s really important to have a therapeutic approach, to have the carers – quite often carers get children and they don’t get any information about the child, what has happened to the child. It’s really important that the carers know the children, know the trauma, and be able to treat the trauma. But it’s also important to be able to do the work and, you know, I think that you’ll hear throughout this inquiry about – you know, the importance of – you know, working with young people to prevent – you know, further damage by not treating much earlier issues of sexualised behaviour – you know, neurodisability, and all of those things.

Is the trauma-informed response also particularly important in the context of Aboriginal families and communities where there has been forced removal of children and practices such as the Stolen Generation?---Yes. And unfortunately – I mean, even though I – in our organisation and, you know, it’s a personal story for me because my mum – you know, my grandmother died when I was – when she was very young, and my aunty was taken into care, and we now have sixth generation of her children in the system, and we can’t seem to break that cycle. None of my family have ever been through the system because – you know, we had a different trajectory. But the – it is really important to break the cycle of intergenerational removal, and to be able to treat and work out how do we actually break that cycle, and the connection to land, and the importance of connection to land cannot be understated in all of this.

In some of your evidence today you’ve focused on issues relating to housing and overcrowding and homelessness. I just want to ask you some questions about some of the practical things that might be done to assist and give you an example. A grandmother who might be an appropriate carer for a child, who lives in a place with one bedroom needs a place with two bedrooms to be able to comply with the appropriate care plan for the child. Would you see that one of the practical things that could be done in those circumstances is that a representative from the Territory Families could write a letter supporting an application to the relevant Department of Housing - - -?---I don’t think that’s - - -

- - - to say ..... the process?---Yes. I don’t think that goes far enough. I mean, I think that what needs to happen is that you need to be able to have priority housing and you need to have access to priority housing, and I think that there needs to be agreements, Child Protection should have access to priority housing for at risk – and to be able to, you know, be able to make available those types of accommodation options. These are the options that happen in Victoria. We have priority housing. Aboriginal housing in Victoria have – own a number of housing stock, and so if we have an Aboriginal family in crisis we are able to access priority housing for that family. And so it’s about, you know, having access and priority housing. So Aboriginal – for young people leaving care there’s priority to priority housing for young people leaving, so they get transitional housing and housing support. So it’s


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about having a housing system that is a resource to the child protection – to the juvenile justice system.

It’s certainly important for the two parts of government to work together in that regard?---Yes, but it also is about – we have it for family violence, so women escaping family violence have priority access to transitional housing. And so it’s about a service system being able to as well – be able to support the most vulnerable and at risk.

A number of the factors that might alert a child protection service provider that a child is at risk of harm or being harmed – is it your view that their – the similar sorts of factors that then can contribute to that child entering the criminal justice system?---Definitely. I mean, in our report we dedicated a significant part of chapter 8 to looking at the needs of young people and we spent quite a – we did develop a plan, and I just want to read this – we – from pages 308 to 316 we said that young people in care need – care and protection, and that these are seriously neglected. We said that service responses for at risk and protected – you need service responses for at risk and protected young people, need for early intervention, the lack of responsiveness. We addressed the issue of inappropriate service responses. We also, in our report, spoke about shortage of service options for young people. We talked about partially funded service options, life education, needs of young people, and that – young people presenting to regional offices. We talked about positive youth related initiatives, and we also talked about what NTFC was funding under Aboriginal – in their area, but we also recommended that there be a youth services strategy with a strategic framework, and we recommended a youth protection model. So we actually drew the – obviously, the link between looking after young people and the youth justice. And so we felt that if we did much more in the youth space that we would actually be able to reduce the numbers of young people going into juvenile justice.

Was it your experience, from looking at what was happening in the Northern Territory leading up to the report that you wrote, that there were windows of opportunity in a child’s life when they were interacting with the child protection system where steps could have been taken to avoid them entering the criminal justice system, and those opportunities were missed?---I think that when a child enters the – well, begins – the process should be around early intervention and prevention. Again, it’s back to if a child starts to present to the courts around issues, you have to go and find out what’s happening in the parental home. You have to be able to say what’s happening for this young person, you know, and be able to case manage that young person to be able to find out – and be able to look at what’s happening, and be able to stop the trajection into the juvenile justice system.

One of the things you’ve emphasised in your evidence is the importance of consulting with and engaging with Aboriginal communities when decisions are made that affect them?---Yes.


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In Victoria you have something called the Aboriginal Justice Agreement?---That’s right.

Can you tell the Commissioners about that agreement?---The Aboriginal Justice Agreement is an agreement that came out of the Royal Commission into the Aboriginal Deaths in Custody, and each of the states and territory agreed at the time to develop justice agreements, and so it was around looking at how does the system deal with the issues of justice? In Victoria we have an Aboriginal Justice Committee and it’s made up of, you know, people that run the prisons, people that – the Commissioner for Police attends, all of the major – people involved in the justice space attend and we look at issues for around policing, around the prison system, around justice. And we’ve developed – and we’re up to our third iteration of plans to be able to reduce the numbers of men and women in the prison system, the recidivism, the youth justice. And so it’s a plan that has – the Attorney-General drives it and the Secretary of the Department convenes the meeting, and it’s very high level, and it’s focused on ensuring that justice issues for Aboriginal people are addressed. And so we have community forums, the community come together and talk about justice related issues with the committee. So they will – the Secretary of the Department, the Police Commissioner will hear first from the community any justice issues that Aboriginal people have. So we hold those across the state three times a year.

I just have one final area I want to discuss with you, and that’s about the way that the child protection system responds to a child and how that response might contribute to the child’s interaction with the criminal justice system?---Mmm.

And here I want to particularly ask you about issues relating to placements, out of home care placements with non-indigenous carers?---Mmm.

And issues relating to dislocation from community and identity issues?---Yes.

Do you have any views on that?---I think that not a lot of research has happened in Australia, but I know Ken Richard from Toronto has written an article about the effects of acculturalisation of children, you know, out – away from their culture. And, you know, as much as you can – you know, take them to events, but when they aren’t embedded in their culture, when they don’t know who they are, they grow up with significant issues into adulthood, and children need to feel connected and feel a belonging to their culture. And so I think it’s really important that whatever system we have, and particularly the Northern Territory and – you know, as I said, VACCA was established because of the numbers of young people who were presenting to the Aboriginal Legal Service who had been placed in out of home care away from their family and community, and had no – didn’t know where they came from, and I think the single biggest crime that we could commit is to make sure – to create a system where more and more children are placed away from their community, don’t know anything about their culture and their people.


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Were those children presenting to the Aboriginal Legal Service for the criminal part of the service?---Yes.

So there was a correlation between out of home care - - -?---Criminal .....

- - - non-indigenous placements and engagement with the criminal service?---Yes.

COMMISSIONER WHITE: Mr Lawrence.

MR LAWRENCE: Thank you.

COMMISSIONER WHITE: could I ask you to restrict your cross-examination – or, really, I don’t regard it as cross-examination – to things that haven’t been covered already in the questioning of Ms Bamblett. We have quite a few things to get through.

<CROSS-EXAMINATION BY MR LAWRENCE [12.25 pm]

MR LAWRENCE: Yes. I’m conscious of that, your Honour.

COMMISSIONER WHITE: Thank you.

MR LAWRENCE: Madam Commissioner.

My name is Lawrence?---Hi Lawrence.

And I represent the boy AD. Following up, really, from Mr Boulton’s questions, and also an answer you gave to Commissioner Gooda, I want to ask you about the entity I gather that exists in Melbourne, which is an Aboriginal Children’s Commissioner?---Yes.

COMMISSIONER WHITE: And will you be adding to the questions that have already been asked?

MR LAWRENCE: Can I just ask the size of it and its personnel. That’s what I was interested in, if I may.


MR LAWRENCE: And could I also ask when that was created?---He has been two – think it’s – he has been there three years. So 2013, the Aboriginal Children’s Commissioner.

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Yes. Thank you?---And his staffing is – he has access to the full Commission staff, so we have, you know, the Office of the Children’s Commission, but he has three staff that work to him at the moment.

And are they Aboriginal staff?---Not at the moment, no. Not all.

Is he Aboriginal?---Yes, He’s Aboriginal and he had one Aboriginal staff member but – yes.

COMMISSIONER WHITE: And is that located in the Office of the Children’s Commissioner?---Yes.

Yes. Thank you.

MR LAWRENCE: I see. And it’s quite clear that it’s your view, having done all of this work, that you think that would be a good thing here in the Northern Territory?---And, I mean, we all knew when he started that it would be – you know, his role would be to make sure that we were all delivering, and so he has clearly been – you know, he’s involved in the Aboriginal child death reviews, he has been really sort of holding the – particularly the government accountable for any, you know – any major reforms to include Aboriginals. So he has got quite a lot of influence with regard to – you know, the child protection system within Victoria.

Alright. Can I just take you now to your statement. Forgive me, I can’t recall the exhibit number. 19, many thanks. And it’s paragraph 15. It’s to do with the implementations of the recommendations which your group eventually made after your work, which were 147. And although you weren’t involved in their implementation, you did retain an interest in that; is that correct?---I wouldn’t say I didn’t maintain an interest. I think that the – they established an expert steering committee, and I guess that was to ensure that there was independence from the report, and so I was quite happy with that. Really happy with that, and having the expert steering committee to drive it. It’s about – you know, in Victoria I run a child welfare organisation, and it’s quite full on in Victoria doing that work. So – but I have a lot of really good friends up here that would, you know, keep me informed and Howard Bath and I maintained phone contact. But, no, I had no reporting responsibility or and media would still contact me afterwards, but I would refrain from commenting because I felt I was not local and was too far removed from - - -

I understand that you say in that paragraph that there was involvement with the government and AMSANT - - -?---Yes.

- - - in order to effect some of the recommendations. Is that correct?---Yes. My understanding is AMSANT would – AMSANT was to establish the peak agency at the time.

And would you envisage – and did you envisage that they would be involved in assisting and facilitating applications of the recommendations that you made?---At

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that time, I think their role was to establish, or I think they were contracted by the Territory government to establish the peak agency only, not to facilitate the implementation of all the recommendations, no.

Would you envisage then being involved in - - -?---Of course, yes.

Would they be in your opinion central, bearing in mind the principles in the substance of those recommendations that you made?---I think any Aboriginal community controlled organisation would be viewed as being central to the implementation of recommendations. You know, for Aboriginal people on the ground because health is certainly a major, you know, contributor to outcomes for Aboriginal people.

Right. Thanks very much, Ms Bamblett?---Thank you.

Thank you, Commissioners.

COMMISSIONER WHITE: Anything arising out of those further questions, Mr McAvoy.

<RE-EXAMINATION BY MR McAVOY [12.30 pm]

MR McAVOY: There are just a couple of things, Commissioner. Do you recall the Commissioner asked you about whether there were any recommendations regarding the mandatory notification system. Do you recall earlier this morning?---The mandatory - - -

Yes. Do you recall the question about whether there were any recommendations in your report regarding mandatory?---Yes. And I couldn’t – yes, I couldn’t remember. So you’ve - - -

If we can just see page 499 of the report, please. Sorry, 449. You can see the reference there to the Dual Pathway Referral and Assessment?---Mmm.

And in the second paragraph under that heading it’s noted that the inquiry proposes that individuals with concerns about the safety and wellbeing of a child should have two referral options: a referral through a designated family support service, or a remember gateway, or to a centralised intake. And there’s some discussion in the next section about family support and referral gateways. And then on the next page – yes, on the next page there’s a reference to the mandatory reporting requirements. And finally, if we can go back to page 41, please. There’s a recommendation there that there be a development of a dual pathway process for the referral and assessment of vulnerable children and families. Do you see that? At recommendation 117, I’m sorry?---It still doesn’t refer to the recommendation on mandatory reporting, though.

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No. I would ask you to accept from me that there isn’t a recommendation on the mandatory reporting?---Okay. Yes. The dual path.

But the way in which the Board of Inquiry approached it was, what, to recommend a - - -?---Dual.

- - - dual pathway?---Yes.

And the estimate from the Board of Inquiry was that up to 85 per cent of the notifications might end up going through them?---Yes, that’s right. A different process. So in Victoria we’ve got the – what we call the Child First Process. So it could be where there are concerns but not significant enough for an investigation. That goes through the Child First team.

Thank you. The last question I have, there was a number of questions to you a moment ago about the justice system in Victoria?---Mmm.

In Victoria there is a Koori Court?---That’s right.

Does the Koori Court extend to juveniles in Victoria?---We have the Koori Children’s Court and so – and the Koori Court does extend to young people as well.

And is it – can you make any observation about how effective that has been in the juvenile justice area, having that Koori Court – Koori Children’s Court?---I mean Victoria has got a very different system, obviously, than a lot of states and territories, because most young people that appear before the court spend most of their sentence in the community with a juvenile justice worker. So before a young person can be released they – you know. So if somebody may get a two year sentence they may do six months in a facility and then the other 18 months out on parole, but before they can parole they have to have – there has to be a parole plan. And so that has, you know, what – how – how they are going to be accommodated, what work they are going to undertake, and so they actually fulfil a number of requirements before they can be released. And while they are out, they are still regarded as being – and they will have a card and it basically says, “You’re out, but you’re actually still a prisoner, and if you commit any crimes you will go straight back inside and serve the rest of your sentence”. So a lot of young people, you know, get that type of response, and I think that’s really critical but – and so the justice response in Victoria really is about, you know, and under that justice agreement it really does target a lot of interventions at young people.

And annexure 3 to your statement is the paper by Judge J.A. Fitzgerald?---Yes.

And that sets out the various alternative court systems in New Zealand?---That’s right. Yes. Looking at neurodisability, and so – understanding how sometimes traumatic events in young people’s lives effect their ability to make really good decisions into adolescence.

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Thank you. Thank you, Commissioner

COMMISSIONER WHITE: Thank you very much Ms Bamblett for your assistance to the Commission?--- Thank you very much

You’re free to go now?---Thank you.

<THE WITNESS WITHDREW [12.37 pm]

MR McAVOY: Commissioner, my learned friend Mr Callaghan will take the next witness.

COMMISSIONER WHITE: Certainly.

MR CALLAGHAN: Commissioner, before we proceed, you will recall in my opening I made reference to a large number of reports that will inform the work of the Commission. And indeed, in respect of Ms Bamblett and other witnesses from whom we have already heard, we are hearing from the authors of some of those reports, but there is a balance in respect of which we perceive it will not be necessary to call the authors but will nonetheless be helpful to tender the reports. Those reports are arranged on the bench beside you and I propose to tender them in what are described as a tender bundle – tender bundle 1. For convenience I will tender an index of that which is contained in the bundle and propose that the bundle itself be received as a separate exhibit.

COMMISSIONER WHITE: Yes. Thank you. The index to the tender bundle will be exhibit 22, and the many volumes will be exhibit 23. Thank you. Always an alert associate. Wrongly numbered. So the index to the tender bundle will be exhibit 23 and the multivolume bundle is exhibit 24.

EXHIBIT #23 INDEX TO TENDER BUNDLE 1

EXHIBIT #24 TENDER BUNDLE 1

MR CALLAGHAN: Thank you, Commissioner. At this point we propose to try something perhaps a bit different. The next witnesses are Dr Howard and Ms Barney. Dr Howard is a psychologist specialising in psychosocial outcomes and the effects of hearing loss. Ms Barney is a deaf indigenous community consultant specialising in culturally appropriate communication for indigenous people with hearing loss. In both the content and the delivery of their evidence, we believe they may complement each other, and for that reason we propose – subject to the

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Commission’s approval – to receive their evidence concurrently, and have them sworn and testify at the same time.

COMMISSIONER WHITE: Yes. Thanks – thank you. We’re already, of course, aware of this proposal and Commissioner Gooda and I agree that this is a sensible way to proceed with Ms Barney and Dr Howard. Now, I note that Ms Barney is being assisted with an Auslan interpreter. I do have an understanding that she is also a very proficient lip reader, but is it proposed that she should proceed with the Auslan interpreter rather than managing in the lip reading?

MR CALLAGHAN: Yes. Especially given the dynamics involved in the courtroom and the distances and so on. And the interpreter, Ms Odette Shore is the Auslan interpreter who is present. It’s also proposed that Ms Barney should have, as she does, in front of her a copy of the real time transcript, which is of course going to be of assistance to her.

COMMISSIONER WHITE: Indeed. So perhaps before we proceed any further, we will do the three swearings in.

MR CALLAGHAN: Yes.

COMMISSIONER WHITE: Thank you. I will do it from my right then. So Dr Howard.

<DAMIEN RODERICK HOWARD, SWORN [12.41 pm]

COMMISSIONER WHITE: And now I will turn to Ms Barney. Do you swear – do have a Bible for Ms Barney?

MS BARNEY: I do have one.


<JODY ANNE BARNEY, SWORN [12.41 pm]

COMMISSIONER WHITE: Thank you. Now, Madam Interpreter.

<ODETTE SHORE , SWORN TO INTERPRET


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Thanks, Mr Callaghan.

<EXAMINATION-IN-CHIEF BY MR CALLAGHAN [12.42 pm]

MR CALLAGHAN: Thank you, Commissioner.

Ms Barney, could you tell us your name and current occupation.

THE INTERPRETER: My full name is Jody Anne Barney, and I actually work as a deaf consultant for the indigenous.

MR CALLAGHAN: Dr Howard, can I ask you to do the same.

DR HOWARD: My name is Damien Roderick Howard and I work as a psychologist.

MR CALLAGHAN: You have each prepared a written statement of your evidence, and annexed to each is a curriculum vitae and background paper and Dr Howard, there are a total of, I think 10 annexures to your statement. Can we get Dr Howard’s statement on the screen first, please. That is the statement that you prepared for the purposes of this commission; is that correct?

DR HOWARD: It is, yes.

MR CALLAGHAN: Yes. I tender that and just note that in the copy that is to be tendered the former paragraph 60 has been redacted, but otherwise the statement and annexures are to be tendered as one exhibit.

COMMISSIONER WHITE: Yes. Thank you. The statement of Dr Damien Howard is exhibit 25, together with the annexures.

EXHIBIT #25 STATEMENT OF DR DAMIEN HOWARD TOGETHER WITH ANNEXURES

COMMISSIONER WHITE: Yes.

MR CALLAGHAN: And - - -

COMMISSIONER WHITE: Is that – is that address a work address or a private address?

DR HOWARD: That’s both.

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COMMISSIONER WHITE: Could you redact the address too, please. Thank you.

MR CALLAGHAN: Thank you. Could we have Ms Barney’s statement on the screen, please. Ms Barney, that’s the statement that you have prepared for the purposes of this Commission.

THE INTERPRETER: Yes, that’s correct.

MR CALLAGHAN: And to it, I think, there are three annexures and I tender the statement and three annexures as one exhibit.

COMMISSIONER WHITE: The – Ms Barney’s statement together with the annexures will be exhibit 26.

EXHIBIT #26 STATEMENT OF MS BARNEY TOGETHER WITH ANNEXURES

MR CALLAGHAN: Thank you. Now, I won’t unnecessarily, I hope, repeat too much of that which is contained in the statements. But can I begin, Dr Howard, just by asking you to give us an overview as to the concept of conductive hearing loss.

DR HOWARD: So there are two types of hearing loss, conductive and sensorineural. Most people are aware of sensorineural. of being in the severe and profound range where people have difficulty communicating orally and perhaps use signing. Conductive hearing loss commonly arises from a history of middle ear disease in childhood, and is more often in the mild to moderate range, and so a mild hearing loss would be equivalent to putting your hands over the outside flaps of ear your ears and holding that to block out sound which would create around a 20 decibel hearing loss, and that kind of hearing loss is endemic in Aboriginal community, particularly in the Northern Territory as a result of this early childhood ear disease, and that hearing loss is mostly not identified because people do hear, but they just don’t hear as well. They are hard of hearing.

And in particular circumstances, such as when there’s background noise, they are communicating with unfamiliar people using unfamiliar terminology, then that hearing loss has a more major impact on communication.

MR CALLAGHAN: Perhaps the quickest thing to do is to go to paragraphs 15 and following of your statement because you address there these concepts and I wanted to go on from there to the causes of hearing loss. Can you give us an overview of that.

DR HOWARD: So the causes of the conductive hearing loss among Aboriginal people stems back to the huge amount of middle ear disease experienced by Aboriginal children. So in Australia middle ear disease, or otitis media, is one of the


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most common childhood illnesses and on average non-Aboriginal children experience that for three months during their childhood, whereas for Aboriginal children the average is over two years of time spent with a fluctuating hearing loss because of that middle ear disease state. However, that middle ear disease also can – when it’s frequent and persistent can lead to damage to the middle ear structures, so that when – a person in their teenage years or adulthood ends up with a permanent hearing loss even though it’s conductive hearing loss.

MR CALLAGHAN: And the causes of these things?

DR HOWARD: The causes of that is damage to the middle ear that is caused by middle ear disease, and the middle ear disease is so endemic because of – it’s a disease very much of disadvantage. So crowded housing, which often overwhelms a child’s capacity to maintain hygiene, places them in close proximity with other children so infections pass around quickly, limited nutrition, and availability of nutrition, exposure to cigarette smokes – smoke ..... some of the very common issues that contribute to the greater level of middle ear disease Aboriginal children.

MR CALLAGHAN: Do you address that in paragraph 20?

DR HOWARD: Yes. Although, that is – that is talking about another issue which is that – that wave of preventable hearing loss that is – people are very aware of, and there is a lot of medical interventions to try and address – is also compounded by another wave of hearing loss that comes about because many people are in – living in a house, and many of those people have an existing hearing loss, and so when they have TVs on or musical – music playing they play those at a very loud level and so the – even quite young children are exposed to noise levels that are similar to industrial settings where – which cause noise induced hearing loss. So we are seeing at the moment, on the basis of that research, a second wave of preventable hearing loss that’s occurring at the moment that will make the proportion of children with hearing loss, and adults with hearing loss even greater, and that has been particularly an issue in the last – developing issue in the last 10 to 15 years.

COMMISSIONER WHITE: Dr Howard, can I just interrupt you there. That will be a phenomenon that, I take it – that is across society, not confined just to Aboriginal people. This phenomenon of listening to very loud music and television and so on. Or is it that it operates more acutely upon those who’ve already started with a compromised hearing system?

DR HOWARD: It operates more predominantly on indigenous people because of three factors: because they live in crowded housing, so you’ve got multiple people listening to loud devices with competing noise levels increasing, so that in – when housing isn’t so crowded you’re going to have less people doing that. And the proportion of people with a hearing loss in non-Aboriginal context is firstly 85 per cent are over 5, so they’re often at an age where children have left home and aren’t being exposed to these loud noise levels. So you have far more people with hearing


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loss living in crowded situations in Aboriginal homes than you do in non-Aboriginal homes.

And the other factor that has contributed to make it a very much recent phenomenon is the access to inexpensive electronic equipment, and iPhones, and listening devices that have been around. So it’s really a new epidemic of likely hearing loss being created at the moment in Aboriginal communities.

MR CALLAGHAN: And if we can take it – bring the focus a little more tightly even at paragraph 15, you’re not just talking about Aboriginal communities, but you talk about difficulties especially with inmates in detention. Can you just speak to that.

DR HOWARD: Yes. Well, that hearing loss is much more predominant amongst indigenous people in detention, has been a contention for some time. And in 2011 the corrections department in the Northern Territory undertook some testing of inmates and found that 94 per cent of inmates in Darwin Prison and Alice Springs Prison had a significant hearing loss. So that’s in that over 25 decibel range, so a moderate level of hearing loss that impacts on them. So unlike in the general community where there isn’t – hasn’t been a lot of work done in terms of testing of adults in those circumstances, but often it’s been found that 30 to 45 per cent of Aboriginal adults might have a similar level of hearing loss.

Amongst inmates and detainees that proportion rises to 94 per cent, which indicates – it’s very much a smoking gun of the contribution of hearing loss through a range of processes in children’s and adult’s lives that leads to their involvement in the criminal justice system.

MR CALLAGHAN: I suppose there’s as a question that precedes all of this, and that is how you diagnose this problem, because there are issues – aren’t there – about hearing loss being confused with other conditions and - - -

DR HOWARD: There are - - -

MR CALLAGHAN: - - - misdiagnosed or not diagnosed?---

DR HOWARD: Yes. The gold standard of diagnosis is audiometric testing, but that’s often hard to access and expensive to access, so it’s often infrequently accessed. And particularly in indigenous communities that’s the case, because people tend to confuse cultural differences in communication styles as being the reason why children may ignore a question, or answer the wrong question, rather than be able to respond quickly and accurately to the questions asked. So often cultural and linguistic differences are seen as the reason why people respond differently. So hearing loss, as an underlying factor contributing to those, isn’t recognised. And also the hearing loss is so prevalent that it tends to be normalised. The people themselves are not aware that they hear differently to other people. So if


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people are asked do they have a hearing loss they will say no because they aren’t aware that they do.

MR CALLAGHAN: That might be the point at which to switch some questions to Ms Barney. Ms Barney, can you elaborate for us on the factors that make the experience of hearing loss for indigenous children different from, and perhaps more difficult than, the experience of the same condition for non-indigenous children?

THE INTERPRETER: Compared with between two children, with the indigenous children in my view and what I’ve observed culturally, growing up, the Aboriginal children themselves will have more visual awareness of the environment itself. Often they will be led by their families, or their brothers, or their kinship – their aunties, the elders and they will follow them, and they will learn from them. They will learn all the experiences amongst them. But with children who are non-indigenous often they already have the auditory – they can sense the auditory, they can hear things around, but they are not visual. So if they were actually born deaf – I’m talking about non-indigenous children – most of them are born hearing.

Sorry, are born from hearing parents. So there’s – 95 per cent of deaf children that are non-indigenous have hearing parents, but in the Aboriginal community many of them have parents who have hearing loss. So they have that visual communication which makes it more astute – they are more aware, and then they can follow the communication that’s amongst everybody. With communication it’s equal. So comparing between the two of them, the Aboriginal children are more visual, they are more observant, and they follow. But with the other children that are non-indigenous often they have to be explained to, and be shown things to do, be more aware in the process and become more visual and be more aware.

MR CALLAGHAN: There is an additional complication, isn’t there, in that Aboriginal children who are hard of hearing have, in effect, to learn four languages; is that right? Can you explain that to us?

MS BARNEY: Well, myself I’m part of that group too. I’ve actually learned my cultural language, sign language, spoken language, and English, and visual communication. So many Aboriginal children have to adjust between the four of those languages. It’s like a code switch. A code blending. It’s like many Aboriginal children will see something that’s more important in a communication and with that they will be able to copy and follow what is the appropriate way, whereas with the Aboriginal elders for instance, may be – they may communicate just by facial expression with eye contact, eye movement, but with no spoken language whatsoever.

And that’s their communication with young children. And those young children are able to pick that up very, very quickly with the elders. That’s how they’ve learnt. That’s how they communicate, and they communicate differently with language. And so they understand that automatically. It’s a code. So when the children are in the system they have strong English focus, which is completely different. It’s the


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cultural awareness, the signing, the visual communication for children. It’s – it often – they won’t respond, and that way – like, you know, they could have four, five, six, seven different languages involved.

MR CALLAGHAN: I’m about to move on to some specific issues relating to child protection and youth detention but, before I do, Dr Howard, could I take you back to paragraph 22 of your statement, because you speak there to a number of consequences that follow from hearing loss, and I just wonder if within the context that we’re speaking about, which is in particular indigenous youth, you could elaborate upon the propositions contained in that paragraph.

DR HOWARD: Yes. And if I can start in doing that by putting in context what Jody has just said, which points to the importance of culture and the importance of cultural support. Culturally informed support in working with indigenous children with hearing loss. Those communication strategies that are evident in Aboriginal communities that are part of the cultural communication style means that indigenous children with hearing loss are going to be more effectively communicated with, and feel more comfortable in that communication process than they will with unfamiliar, non-Aboriginal professionals who don’t have those communication skills that encode information in a visual way, that works towards the strengths of those children.

So it emphasises some of the comments of the previous speaker about the importance of culture and the importance of culturally based communication styles in supporting Aboriginal children in care and detention, but particularly indigenous Aboriginal children in care and detention who have a hearing loss. It’s even more important, because otherwise the communicative breakdown is going to be far more extensive and frequent, and the implication is that when non-Aboriginal people without those communication skills and awareness are involved they need to be trained in those issues and those communication skills, if they are going to be successfully involved.

MR CALLAGHAN: So you see that as a highly specific example of what Ms Bamblett was talking about earlier?

DR HOWARD: Yes. She was talking about those cultural aspects in general, and honing down to parts of why culture is and culturally – cultural support is to important is the communication strategies, the visual communication styles that are widespread in the entire Aboriginal communities, because when so many people have hearing loss, the communication – the non-verbal communication skills become developed far more extensively in the entire community. So hearing loss is less a disability because so many people have the skills to overcome it.

But when the person is – with a hearing loss is placed in a context where other people don’t have those skills, so most of the western institutions, schooling, court system, health systems, criminal justice systems, then the communication breakdown is far more evident, and you can flow that through a detention setting where staff not aware that people have a hearing loss might call out to someone from behind, not realising they can’t hear them, think they are being defiant and confrontational.


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MR CALLAGHAN: Well, we might come to that in some detail in a moment, but perhaps by way of introduction to that process can we just go back to paragraph 22, and get you to speak to the sorts of consequences that we’re talking about.

DR HOWARD: So when a child and young person has this hearing loss there, which they may not – they not be aware that they have a hearing loss, and their family isn’t aware that they have a hearing loss, communication and interpersonal problems are likely to be more evident. Quoting one of the articles, an Aboriginal health worker who had the opportunity to look in kids ears and see the state of them, and see the behaviour of the kids in the community, she commented that it was particularly the Aboriginal kids with hearing loss who got floggings from their parents for being defiant and rude in the community, far more often than other children.

So you can see the breakdown in family relationships that can occur through those kinds of things. And there’s also research in the – both indigenous and non-indigenous communities that children who have a high – who have a lot of otitis media, their parents often feel that they are failing to be adequate carers because they are not – they are not doing the things that seem to make their children happy, being unaware that the immediate is leading to communication problems. So the impact is on communication and isolation, is both on the children themselves, and the families and the community who often have difficulty knowing what to do with those communication problems.

MR CALLAGHAN: I know it’s in your statement, but just for the benefit of our court reporter, otitis media, could you spell that, please.

DR HOWARD: O-t-i-t-i-s m-e-d-i-a.

Thank you. Please go on.

DR HOWARD: But often the communication problems as I said earlier can be minimised in a family context that – where many people have very effective non-communication skills. However, when the child enters the education system, which is very audistic, so it’s very auditory focused, and the teachers from a western background are not well equipped to be able to communicate with many children who have hearing loss. So the children are going to experience far more difficulties in that kind of a setting, and unfortunately the special ed model that operates in most Australian schools, and in the Northern Territory, assumes that special education support is provided to a few children with severe difficulties.

Whereas the reality in many Aboriginal classrooms, or for most Aboriginal children in mixed classrooms, is that the majority of those children may have a current hearing loss and teachers aren’t well equipped in order to how to address that. And the resources in the Northern Territory are too scant to be able to do that. There are some very dedicated teacher, advisory teachers, but there aren’t enough of them, and they aren’t enabled enough to work with individual children to make a difference.


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So that can lead on to, in the school situation, behaviour problems. My doctoral research was on the behaviour problems of Aboriginal children related to – you know, in a school environment, and it identified a range of ways that Aboriginal children with hearing loss can be seen to have behaviour problems in that context.

So they might wander around the classroom, because they don’t understand what’s going on, or to try and observe other children’s work to know what to do, but that’s seen as breaking the school rules. They may wait until it’s quiet enough in classrooms to be able to – so that they can hear the other person speak back to them, because when there is a lot of background noise with other children speaking it’s difficult to do that. But the times that it’s quietest in class is when the teacher is trying to teach, so they are seen to be breaking the classroom rules and talking out of turn, so then they get into trouble.

So there’s these behaviours that are seen as simply behaviour problems, when, in fact, it’s the attempt of children with a hearing loss to cope in that school environment that is the underlying issue there. So, again, training teachers in those kinds of backgrounds of the children that they are dealing with helps to overcome those behaviour problems without the medicalisation – or the child being seen as defiant and poorly behaved. But too frequently over time children are seen in that way, are involved in disciplinary processes which they feel are unfair and targeting them, and so they go through a school system being labelled as behaviour problems and possibly excluded from school.

And their opportunities to access the educational resources there are much less than other children who can – who can access that highly verbal teaching style that’s so common in schools. And that increases during the school year, so that in early childhood the teaching is often very much more visually based, so the children with hearing loss may not be so disadvantaged, but as it becomes more and more verbal and literacy based – and hearing loss does contribute to children having literacy problems – then children with hearing loss struggle more, and by the time they get to high school problems may be so difficult, and it’s such an uncomfortable environment that they choose not to go and to exit the school.

And often that change from a primary school setting with a range of familiar peers in a single classroom with a single teacher, to a high school setting where there are multiple classrooms, multiple groups and multiple teachers, is communicatively just a bridge too far to be able to cope with.

MR CALLAGHAN: I appreciate all of these factors are - - -

COMMISSIONER WHITE: Mr Callaghan, I don’t want to interrupt, but might it be a convenient place for us to - - -

MR CALLAGHAN: I’m sorry ..... completely lost track of time.


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COMMISSIONER WHITE: To break? I know it’s partway through paragraph 22, but I think we could take up those interesting topics – because I think each one will obviously take some little time to walk through.

MR CALLAGHAN: Yes, Commissioner.

COMMISSIONER WHITE: So perhaps we will resume at 2 o’clock.

ADJOURNED [1.09 pm]

RESUMED [2.05 pm]

MR CALLAGHAN: Dr Howard, I was directing your attention towards paragraph 22 and of your statement, and I don’t need to take you – I don’t think – to bullet points 6, 7 and 8, because I think we’re going to cover those later in your testimony. Can I just get you at this stage, please, to just elaborate upon the concept of the impact of hearing loss on psychosocial development.

DR HOWARD: So because hearing is our most social sense it’s very much the means by which we – people primarily engage with others. So that ability to communicate and connect with others, and for a child to be supported through – particularly non-indigenous children, for indigenous children where there is a far greater visual focus they – they are not so disadvantaged by the mild hearing loss, but still are disadvantaged. So that connection with others, the acquisition of auditory processing skills – so a secondary consequence of that very persistent hearing loss during children – during childhood is that they may not develop auditory processing skills that equip them well to listen in noisy environments, to quickly ascertain what has been said.

Even though their hearing has returned to normal they may have this secondary condition of auditory processing problems that still makes it difficult for them to understand what’s said and formulate their own thinking as to what they want to say. Also auditory memory, which is very important in terms of learning to read and being able to discern the relationship between sound and letters. So that impacts on education. And then psychologically there are some things that typically children with hearing loss – these mild to moderate levels of hearing loss do, which is develop compensating strategies. So they develop ways of observing what’s going on and, say, for example in a classroom children with normal hearing will be – look at something that’s going on that’s new and then go back and monitor what’s happening with their hearing.

Whereas children with these hearing problems can’t do that effectively, so when they are disturbed by something they may look and keep on watching, and so are distracted from what they are doing in class. So time is taken away from the actual


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learning activity and they are seen as being distracted. And there’s – it’s commonly that the profile of social difficulties that children have with auditory – with hearing loss is mistaken for ADHD. So it’s – there’s commonly a misdiagnosis, and I heard a story at one stage that one psychiatrist in Western Australia was so convinced that so many children had ADHD he humorously suggested adding Ritalin to the water supply, but what was happening there was that there was a – the hearing loss and the social responses to that were being misdiagnosed as ADHD.

And that is a common issue in say, the child protection system where hearing loss is – people are not aware of it, they may be looking at the ADHD as a – as the intra-child answer to what’s going on.

MR CALLAGHAN: Well, you mentioned the child protection system and I might turn attention to that now through you, Ms Barney, because you have worked with children in the child protection system; is that correct?

MS BARNEY: That’s correct. I am choosing to speak today – my interpreter actually has developed a sore throat and her voice won’t carry through the rest of the day. So I think in the light of Commissioners understanding of my great lip reading skills, I thought I would use my great oral skills in answering the question. Many of the children who are in child protection with a significant hearing loss often use their visual relationship to their environment, so often break down what’s happening through circumstances, and finding a better solution of how they can either cope with that, and develop strategies around what communication people want to know. Often it’s not the communication they need to know.

MR CALLAGHAN: There is an obvious, I would suggest, issue with the reporting of abuse. And I think you speak to that in paragraphs 32 through to 35 of your statement; is that correct?

MS BARNEY: Yes.

MR CALLAGHAN: Obvious issues involved in interacting with a Child Protection case worker.

MS BARNEY: Often child protection workers – and they do a fantastic job under the circumstances – often are looking for the likelihood of risk. So when a child has a hearing impairment, and becomes quite silent they feel – they often see that as a sign of trauma, that the child has been exposed to some form of abuse, therefore the child isn’t responsive. So they think that that’s related to trauma, where in fact it’s actually the child can’t hear.

MR CALLAGHAN: And perhaps not even just trauma, but even just relocation to a new environment.

MS BARNEY: Yes. Many of the children here in the Northern Territory, who are removed off country haven’t returned to country in many years, and their access to


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their family has been denied through various reasons, so they lose their primary communication method to engage with people. So in doing that, children are coping with minimal access to visual language, but also signing systems that they have picked up along the way. So if they are in kinship system placement they are learning signs from those families, and if they are put in foster care or with other placements with non-indigenous people, they are picking up visual cues and very broken English.

So those gestures and visual communication strategies become their – like a catalogue that they file – they pick the communication from. And in doing that often their communication gets distorted and is very difficult to read, so child protection workers feel that there is other significant behaviour issues.

MR CALLAGHAN: Alright. Well, thank you. And we have the other points that you’ve made in your statement, but are there any other particular vulnerabilities that indigenous children with hearing loss experience that make – or compromise their position within the child protection system to your – in your opinion?

MS BARNEY: Just going to – there are many. Aboriginal children with hearing impairments who are in the system often are groomed, they become very silent victims of grooming. They also can become scapegoated for other children if they are in placement with many other children, so they take the fall for the other child. Often the communication breakdown around that sees a young person who is extremely vulnerable become more vulnerable, so therefore they communicating altogether, or they act that communication out. So therefore they may become a perpetrator of violence against other children to try and show what is happening to them. And often that’s not picked up as a form of reflective understanding of what’s happening to them; it’s seen as a sense of violence.

MR CALLAGHAN: And that, of course, is the type of thing that would bring them into contact with the youth justice system, and I might turn the question back then to Dr Howard. There are some clear examples, are there not, of the way in which hearing loss has an adverse impact on indigenous children in their interaction with the criminal youth justice system. There are obvious examples such as their ability to participate in a police interview, give instructions and take advice from legal representatives, that type of thing. What about on the topic of giving evidence? Is that something that is of particular concern?

DR HOWARD: Yes. Particularly in terms of their ability to understand questions that are put to them in court in a – often an unfamiliar language, through a relatively unfamiliar person, or quite unfamiliar person in terms of the prosecutor. And so that immediate communication in that context is compromised, but going right back to a coping strategy when cross-cultural communication is more difficult, it means that children often cope by avoiding contact with western people, so that their knowledge of western systems, their knowledge of English as a subsequent language is diminished. So that they – when they are in court it’s a double-whammy of their past avoidance leading to difficulties in understanding what’s happening in that system,


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and then the particular problems of understanding the communication that’s put to them in those circumstances.

MR CALLAGHAN: And of course the result of a court appearance might lead to their presence in a detention centre, and I think you alluded earlier to some obvious difficulties that might be encountered interacting with the disciplinary process or – within such a centre. Can I – suppose – ask you this specific example: whether the problems which we can probably apprehend for ourselves, whether they would compound if, for example, a hearing impaired child was wearing a spit hood?

DR HOWARD: Yes. Well, because, as Jody was talking about earlier – and she may have some further things to say about this – because the visual communication is so important the spit hoods that have been used in the Northern Territory are not only spit hoods, but they are vision hoods as well. So the child is unable to do the face watching, the reading the body language to help understand, in conjunction with what hearing they have, what is being said to them. As well, because of that reliance on visual communication, visual isolation makes them – is going to make them much more anxious and fearful about what is going on. But I suspect that Jody can say more about this.

MR CALLAGHAN: I was going to say – Ms Barney you’re nodding in furious agreement. Is there something you would like to add to that?

MS BARNEY: It distresses me that a process of such a form of discipline is used on children who can’t hear. If the reason for such a device is necessary, then communication must happen beforehand. Taking away another sense from a person, who already has a limited sense – sensory, is – is frightening. And that fear stays forever, the fear of having that happen again. Unfortunately, I have had a few young people who have had a spit hood – is that what it’s called – a hood, where – and they have also been bound. So therefore their form of communication is lost in every sense of the word. So not being aware of your environment, not being able to respond to anything that’s happening, and the predictability of anything that will happen to you, it’s a – it’s trauma and it’s – it stays with them long after their sentence.

MR CALLAGHAN: Well, I suppose in what you just said you made good a point that we don’t confine these propositions to a single item such as a spit hood. You just referred to the example of hands being tied, as in – or bound as in by handcuffs. That very concept, which is common throughout the criminal justice system, is something which might deprive someone of their ability to communicate in this context; is that right?

MS BARNEY: If you are bound in such a way you cannot physically gesture any type of apology, or any way of saying that you will conform, that you will behave, your body language will change – therefore become more submissive. So then what happens is it’s then used as a disciplinary act and a threat that they will have this, because many of the young people who are bound with their hands behind their back


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cannot communicate in any way. So Aboriginal young people are more gestural, especially if their language is delayed, if they have an impairment.

Often they are confused as having a cognitive impairment, so therefore that – utterance of their language – how they are trying to communicate can be perceived as being aggressive. So it’s fear and frustration. So therefore they are – stay in that environment longer, until they become completely submissive.

MR CALLAGHAN: So within the context of a detention centre, some consciousness must always be had about the need for youth to express themselves using body language?

MS BARNEY: Yes. They need to have an understanding for themselves that they have limitations, and because in the community sense we don’t have the – you know, the sense of disability as what westerners do. So I know that later on you will hear more about that but from a deaf and hard of hearing perspective that is – it’s – because it’s so common amongst communities, therefore the response to authority is completely different.

MR CALLAGHAN: Well, can we move to - - -

COMMISSIONER WHITE: Mr Callaghan, just - - -

MR CALLAGHAN: Sorry.

COMMISSIONER WHITE: - - - before you do move to your next question, I would like to at this point ask Dr Howard a question. You mentioned in your evidence before lunch that on your own empirical research some 94 per cent of indigenous residents in an adult detention facility were hearing impaired in some way along the spectrum, I thought – I thought you said from sort of mild to quite severe. You haven’t done the same examination in the youth detention facilities, I understand, in the Northern Territory. But are you able to extrapolate back from those figures what you would expect to be the situation in a youth detention facility? Because we are receiving this evidence from Ms Barney, of course, and we just need to have some sense of what kind of percentage we are looking at here.

DR HOWARD: Yes. There is one study that was done in Don Dale Juvenile Detention Centre, and that looked at 10 of the detainees at that time, and that found that six of those detainees had active ear disease, meaning that they would have some degree of conductive hearing loss from that. And the report commented that the level of hearing loss as – was as would be expected with that. So that’s the children with a current ear disease but, as I said earlier, having earlier ear disease that has created damage to the middle ear can leave someone with a permanent hearing loss, even though they don’t have current ear disease.

And the – I know the prime author of that report, and in discussions with him at times in the past, he has mentioned a figure of 90 per cent. And in fact it was that


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earlier Don Dale study which prompted this – Corrections to look at the situation in adult prisons because there wasn’t any information. So I would think that it would be very similar, but with the added dimension that there is likely to be far more active ear disease that needs medical intervention in the youth detainees as well.

COMMISSIONER WHITE: Thank you. Yes. Thanks, Mr Callaghan.

MR CALLAGHAN: With respect, the question was well placed because I was about to move to the topic of recommendations. And one thing that both of you, I would suggest, appear to highlight is a need for a great deal of further research; is that correct?

DR HOWARD: Yes. Definitely. And as I have said in my statement, over the last almost 25, 30 years, I have been involved and I know of attempts to actually do research in this area that hasn’t been successful in being funded. And the articles that I’ve contributed to have been either information based on individual stories and experiences, or in collaboration with the results from the corrections study that were just so simply amazing that needed to be reported on a more general level. But more research in terms of – on how hearing loss impacts on children and adults in the criminal justice system at every level, on – in terms of engagement with police, in terms of within giving instructions to solicitors, participation in courts, and then that transition through into detention, if that’s what – that’s what occurs.

COMMISSIONER WHITE: I’m quite interested in this area, because it seems to me that we really need to drill down a little further, Mr Callaghan ..... you probably going to do this – about the issue of the number of indigenous children who can – who sign language, as in the Auslan, how many interpreters there are available in the justice system when they come before the courts, how do they actually convey their instructions to their solicitors and barristers? How does it affect the plea of guilty? Is it a perfectly informed plea of guilty, is it not? These are all very concerning questions when you consider the numbers that Dr Howard has suggested might be present. So if you’re planning to go down that path, I would be very interested to hear it.

MR CALLAGHAN: Well, I suppose the question is for both witnesses, how far down that path can we go? Is that not an area in which there is a need for more, and more detailed research?

DR HOWARD: There is a need for more detailed research, but I think we can certainly make comment on the basis of case studies and people that we have both been involved with, and also some – from some of the work that was done by NALAS in particular, and they made a submission to the Hearing Health Inquiry. So going through to those questions. Just to clarify that when – Jody is talking about people who are severely or profoundly deaf, who may not hear very much at all and may primarily use sign language. They are the most disadvantaged within the criminal justice system, and have some quite atrocious outcomes in terms of fitness to plead – being seen as being not fit to plead, and being held in a detained


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environment for many years without being able to articulate what’s happening with them, and their involvement ,or lack of involvement in the crime that they were – they were – they had committed. And Jody I’m sure can tell us some more details about the particular disadvantages of people with those severe to profound levels of hearing loss.

With the children who have the mild to moderate levels of hearing loss, which isn’t identified in the first place, there is – and having read through statements with police, you can actually see the pattern of responses in those statements of a child who has a hearing loss of the – either the non-response to questions, or the – or the missing – miss – answering a different question to what was asked, and misunderstanding the question that was asked. And there’s a term called gratuitous concurrence, in – which I think is very – in terms of cross-cultural legal aspects, which is agreeing with the proposition that’s put to the person out of politeness, and that’s particularly problematic in terms of interviews with police where someone doesn’t understand what has been put to them, but may appear to agree to it in a interview because they want the interview to stop, because it’s uncomfortable and they are feeling embarrassed or shamed.

And certainly I know of people who have said, “Well, I pled guilty to that charge because – even though I didn’t do it – because it was just too embarrassing for me to say I didn’t really understand what they were talking about.” You also see in statements that are purportedly from indigenous people with a significant hearing loss that are in a language that is way beyond what their formal English is able to convey. There are stories of young detainees who go into detention, and saying they don’t know what happened, they don’t know why they are there, and so the whole process of their involvement has been things put to them that they may agree to, or their lawyer may agree on their behalf, and I think there is a great challenge for legal practitioners with their clients of trying to get instructions because of the difficulties in communication because of hearing loss and the associated language and cultural differences.

MR CALLAGHAN: And in terms of being able to meet that challenge, in the Northern Territory at least, Ms Barney, in your statement paragraph 25, you say that you are aware of only three deaf indigenous people qualified to do the sorts of things that would be necessary to deal with these sorts of problems; is that right? And that’s across Australia.

MS BARNEY: Yes, that’s correct. The – to work in this area, interpreters must be at a professional level, so they have to be certified through the national accreditation – NAATI. So – and that’s also the same for Aboriginal spoken language interpreters: they must be qualified, trained. So deaf indigenous interpreters, we are actually not nationally certified through NAATI yet – it’s a process. However, we are working in conjunction with interpreting services, we have had interpreting training, and we work with the interpreter who is – actually primary communication in a court system is Auslan. So we work across the different Aboriginal languages, and then we feed it into Auslan, and then the interpreter feeds it to the court.


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MR CALLAGHAN: But in the Northern Territory at the moment, what – I mean you heard Commissioner White’s questions about - - -

MS BARNEY: There is none.

DR HOWARD: I think it would be worthwhile to ask Jodi to talk about how many deaf indigenous people use Auslan.

MR CALLAGHAN: Well, yes. That, I think was what the Commissioner – or one of the things that the Commissioner was getting at.

MS BARNEY: Here in the Territory, if Aboriginal children have lived in remote communities, they either went down to Adelaide to their school there, or they may have got to Perth, or they might have gone to Sydney. Often, if they are in community, they don’t have access to Auslan. To my knowledge fluent Auslan users here in the Territory, there’s about 18. The number of deaf Aboriginal people I know, it’s in excess of 600. So them learning Auslan is very difficult, their access to learning the culture sign that is used not only in the courts but also in education, in health, is extremely difficult. So the responsibility of Auslan interpreters for the courts, in education and in health settings, is that they have to learn the Aboriginal signs to try and bridge that type of gap.

Aboriginal people who have community sign language also don’t have access to their spoken language or English, so grammatically their Aboriginal sign languages are bound to their cultural knowledge, and so therefore doesn’t translate into Auslan. So often it can be misinterpreted if not done correctly.

MR CALLAGHAN: So just to go back to where I was a little while ago I was asking you about recommendations and we discussed research. What you’ve both just spoken about suggests an obvious need for training of a number of individuals, would you agree with that?

MS BARNEY: Yes, completely. I’m all for education. I think it’s very important to acknowledge that here in the Northern Territory there is only one qualified professional interpreter that works across the Territory. She has been here for seven and a half years, and in often in difficult circumstances, and working with some very extreme cases. So I have worked with her as a mentor for many years to support her while she is here. There’s no training provided to interpreters at this level yet – working on it – but also that the acknowledgment of such a training that is necessary for the Territory around the language supports needed. It is often not seen as, as important as it is.

MR CALLAGHAN: And as long as we’re talking about absence of qualified people, can I take to you paragraph 50, Ms Barney, of your statement where you speak about an absence of cross-cultural awareness in the area of communication and language with workers specifically covering the area of hearing loss. Is that another area in which there’s a need for reform?


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MS BARNEY: Completely. I think that in response to that, Aboriginal sign language systems in the Territory, to my knowledge there’s around 55. The ones that are commonly used in education and in legal settings, there’s about 17. So in doing – saying those, there is a need for not only sign language interpreters but also spoken language interpreters to have that as a part of their skill set so they can also – they’re the best people. They have the cultural knowledge, but also the signing knowledge, to assist our young people.

MR CALLAGHAN: And as to how – the way in which that training might be done, Dr Howard, at annexure 10 of your statement you have a background paper, and at page 20 and 21 you have some recommendations there. Would you endorse those to the Commission?

DR HOWARD: Yes. If I could just go to those, to ..... them specifically. And I would just like to elaborate on Jody’s comments that when – those signing systems are going to be important for everyone. They’re going to be essential for those individuals with severe to profound levels of hearing loss who won’t have very much access to oral English, but for the majority of indigenous people in detention they will have a mild to moderate loss where signing will be an important adjunct, and so that gesture and visual communication become much more important in terms of the overall context of verbal communication, and there’s also the processes of communication to help people anticipate what’s going to happen.

So there are strategies in terms of how to address the issues of hearing loss in terms of preparing people to know what to anticipate, say, when they go into a court context, where they’re – what’s going to happen, and how they are going to be. For example, Jody in discussing coming here today wanted to have a look at where things were at, and Jody you might like to talk about what those things were important for you, in talking about being comfortable with being able to know what was going on and participate most effectively in this situation.

MS BARNEY: In relation to a court setting, it’s very important that we have the visual spectrum. So often we look at peripheral vision. So we can see quite well. So if we are able to scan the room where we are, we know where people are placed, and in saying that, we are able then to acknowledge our role in that – in the space. So the acknowledgment of where people are of significant roles and what’s – and the shift that I have to do from watching the question to getting the question to waiting for a response, to reading the script to acknowledging the Commissioners. There is a lot of process that has – its visual processing. So there before – it’s what we call visual noise. So often we have to deflect a lot of that, and if you are a young person who has not got those skills developed yet, it becomes quite daunting.

MR CALLAGHAN: And as long as we are in annexure 10 on the screen, can we –to Dr Howard’s statement. Can we go back to page 13 where you crafted some relevant recommendations that are specifically applicable to the youth justice system; is that correct?


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DR HOWARD: I think so. I will just – it was a while ago now, so I will just remind myself on that. Yes.

MR CALLAGHAN: Well, that’s what I was going to say, it’s a while ago but do these recommendations have currency as far .....

DR HOWARD: They certainly do still have currency. The same issues that were described then are still current and largely have not been addressed in any way. So it talks there about the importance on police, and those people communicating with indigenous people in the criminal justice system, having awareness that a high proportion – in fact most people – are likely to have hearing loss and to be trained in communication processes to be – for that communication to be most effective. So that flows right through from police contact, police statements, court processes – particularly engagement with solicitors – and then going right through to the detention system, and what happens within that.

And a number of times, as – I’ve put together proposals to actually investigate the processes of each of those levels to be more informed and – as well as talking to people to give typical examples of some of the things that do occur when people aren’t aware of those things. And there are some stories in some of the articles of a young man in a detention – or I think it was in a court where he was crash tackled after he didn’t hear an instruction, and it was thought that he was trying to abscond, so he was crash tackled in the court with him not being aware of why this had happened.

Very commonly, that – another story of a young man who had been sentenced and his usual lawyer wasn’t there on that day, and he was placed in a holding room for the sentence to be explained to him, but it was an unfamiliar person and unfamiliar circumstance and it got too much and he trashed the room in his – you know, his anxiety and his fear and his distress before it was possible to communicate to him what had happened. Because often the experience of an indigenous person with a hearing loss in a court process is that it’s all mysterious.

There is a quote from a magistrate that was reported in one of the articles that the demeanour of Aboriginal people in court of staring off into the distance, appearing to be uninvolved and uninterested in proceedings is very typical of someone who has a hearing loss and simply doesn’t know what’s happening in proceedings. And so investigating that – and I think one of the answer or some of the answer to that can come from some – from processes that happen in Koori courts. And as an exercise I actually looked at Koori courts in Victoria and in the way that they operate, and the access to communication for indigenous people in that context.

And it was very apparent to me that because they have Aboriginal adults and elders in that process, who have those communication skills, those visual communication skills to be able to engage with offenders, and that the courts are usually set up in a – a pattern so that people can see the faces more easily of the protagonists in it, and from information it seemed that people are more prepared to know what was going


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on in there, or could be informed and – so – of what was happening, so that there was a congruence between the communication going on between the Aboriginal elders in that context and the indigenous people with hearing loss that made communication far more effective.

Plus you had community elders for whom the indigenous accused had a far more greater motivation to respect and engage with, because they were the important people in their life and respected by their families, whereas too often is the case that indigenous people, particularly those with hearing loss, are plucked out of the family context where they need that support to communicate and placed in a quite alien environment which exacerbates the problems of communication for them, so that they then go into a criminal justice system without the family supports, the people supports, to assist them in their communication.

MR CALLAGHAN: Well, let’s just dwell on that concept of support for a moment, because it is the case, is it not, that at various stages – throughout the youth justice system, at least – some support is offered, for example there is often support in the course of a police record of interview. Someone may sit in on a police interview with any youth, not just indigenous, but that’s just one part of – one point on the conveyor belt, if you like.

DR HOWARD: Yes.

MR CALLAGHAN: What do you say to the concept of support throughout the process and whether that support is piecemeal, as it were, or divided between different people, or whether there’s a role for someone to steer the young people through the whole of their interactions with either Child Protection or youth justice or both?

DR HOWARD: I think that’s very important. And the Anunga Rules were formulated to assist because it was recognised that records of interview with indigenous defendants were often inaccurate and, when there was a communication problem there, that was very likely often related to hearing loss – although that wasn’t identified, it was just the injustices, at the time, that were evident. So that supportive person to assist with communication would be very important for young detainees, particularly young detainees with hearing issues, to both take them through those police interviews, their – their engagement with solicitors, their engagement with the court processes that they are involved with, to help them understand what’s actually going on.

And at times to even advocate for them in terms of, “Well, look, they are not understanding this, let’s go back to do that.” Because it’s an unfortunate reality that most of the professionals go through our western education system are those who don’t have hearing problems, because hearing problems is a major obstacle to being successful in that. So you get the brightest and best, for example in the legal system, who are going to be least able to communicate visually and non-verbally with people. So you need those skills and particularly the cultural base skills. So those –


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people who are trusted and known who can help shepherd that person through those processes to create a greater ease of communication, less stress, and less trauma too, because of the – as following on from what Jody said, trauma at the unexpected and what seemed to be capricious outcomes of legal processes are very common.

MR CALLAGHAN: Ms Barney, that sort of shepherding, that sort of advocacy, that’s the type of work you do, is it not?

MS BARNEY: Yes. It’s a very important point in the role that a person who has an advocacy background, but I think that every person from the first point of call to the young person being returned to home, is that every significant person must have an awareness around the hearing impairment but also around the communication needs. And also being responsible in their role to say, “Well, you know, I don’t think this person’s getting what we mean, let’s find another way for them to understand it.” And saying that, it can be in other formats such as not only sign language, but it could be in a picture form, it could be in a role play.

So young people can be able to tell their story in a way that they understand it. So one of the issues with young detainees is, when they are asked to give evidence, often they start right back prior to the event. So that narrative approach of leading up to what they actually did is an – a very important part of deaf culture. So in saying that, often people say, “We can’t get them to recall that part of their story because we need to move to the second part.” And in doing that, often that narrative is lost, and that narrative can’t allow them to get back on track. So often they are seen as being – you know, confused or may have a cognitive impairment and in reality it’s because the narrative hasn’t started at the visual interpretation of what took place. So that’s a very linguistically – a linguistic issue that happens, that many legal practitioners don’t understand.

MR CALLAGHAN: And not just legal practitioners, I would suggest to you, because in terms of imparting a narrative one other thing I wanted to take you to was paragraph 47 of your statement where you talk about the induction process at detention centres which, again, involves some sort of a narrative being conveyed. Do you see that as a particular area of concern?

MS BARNEY: It’s a very extremely important role for if the young detainees are doing that induction to understand where they are, and often young detainees think if they have come from supported accommodation or they have come from out of home care or they have been removed from community, they often think that this stay place of care. So when they enter the detention centres, they are often thinking, okay, well this is the same as before, however the rules are different. The consequences are more severe. So therefore they are not aware, and when their expectations of what they have to do, they – they become more – either more passive or submissive or they become more agitated because they are not sure of what’s happening. That induction process is very important for the Corrections Department to say to them, “This is different to where you’ve been. Because of those things you are here,” and the role that a person who may also be in the detention centre, who may have had an


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awareness or has been there for some time can act as a mentor for that person to show them the ropes in the sense of this is where things are, this is what happens, especially for first time offenders.

MR CALLAGHAN: Look, this is a huge topic and you’ve both provided the Commission with a large amount of information, and I can’t possibly sum it all up in just a few minutes. But in terms of recommendations that you have both made at some stage and endorse to the Commission, we’ve identified the need for research and for training, the benefits of an advocate to a hearing impaired child dealing with the system. We could also, I’m sure, discuss at length support for families. But can I specifically ask you about the concept of cooperation, coordination, between multiple services that might be relevant and any observations that you might have about how or – sorry, where there might be duplication or gaps and if so how those things could be addressed.

DR HOWARD: I will jump in and start. The multiple departments often operate in the Northern Territory and elsewhere as silos. So you find that, you know, the education system is operating as best it can and particularly for children with hearing loss and together with other complex needs may simply – especially in remote communities, the resources are not there to adequately cater for them. So because those resources aren’t there, children may not attend school and therefore not really obtain an education that enables them to cope with the demands of adult life, so they become very dependant on family to assist them in this and often just have difficulty, as I’m reminded of a situation of a young man who had hearing loss and was – came into town with a family member and didn’t know how to get his way back home to that community without the help of the family. And they were involved in other things and weren’t helping him. So he broke into a car yard and played dodgem cars with – after he stole some keys and caused a couple of hundred thousand dollars worth of damage and came before the courts because of that.

So you can see, you know, that frustration and being out of context and unsupported in that situation with his family led to this which then led to his being in prison through a major damage being caused. So – but when those children aren’t adequately supported in the education system, generally the major problems come later in life after the person has left the education system and then it becomes the problem of the criminal justice system. And I think over the years it’s very much – I’ve heard and seen the frustration of particularly magistrates who are looking at, well, where do I go with this young person from here. Because, really, the intervention that needed to change this trajectory needed to happen 10 or 15 years ago, and those things, you know, can’t be undone. So they are left with very limited resources to do something about it. And because, you know, the budgets of those two agencies are quite separate, that passing the parcel on in saying, well, you know, education doesn’t need to address this because, you know, if we don’t provide services and it’s not even on a conscious level of that, it’s just that teachers are overwhelmed and under resourced to be able to provide services, so there is a mutual disengagement that comes home to roost in the criminal justice system, when, at that point, far less can be done.


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So a holistic view, both of the person’s life but also the systems involved with children, really needs to take into account that that – those kinds of processes so that there’s collaboration and an overview. In some of my writing, I described it a grandmother’s view of systems, because grandmothers have seen enough children go through those various processes, particularly in relation to hearing loss, to understand the importance of getting things done earlier and getting things done with a care for the child involved so that they don’t end up locked into a criminal justice system that is – that is increasing in terms its detention capability but not in terms of the capacity to meet the rehabilitative needs of detainees.

MR CALLAGHAN: Ms Barney, I’m sure from your nodding that you would seem to endorse everything that Dr Howard has just said. Is there anything you would like to add? I repeat this is a huge topic and one to which the Commission will give detailed attention, but we do have a limit to the amount of time we can spend with this sort of evidence, so I would invite you to offer any final thoughts that you may have.

MS BARNEY: I will take a grandmother’s view. As a grandmother with two young grandchildren who I hope will not be children of the system, not under my watch, anyway, it’s very important to understand the significance of cultural processes and cultural practices. There are protocols in community that haven’t been addressed fully. I would say, too, the multiple disciplinary, you know, between the departments, they need to be very strongly in tune with the human rights framework and also the rights of indigenous people and the rights of people with a disability. There are very significant issues that are happening, not only with Aboriginal people with hearing impairments, but we have Aboriginal people with hearing impairments who have other disabilities. So there needs to be a cross-cultural awareness across all the barriers that communities are seeing. There has to be – has to be a way to stop the blame game where communities are not engaging with the proper services because they get told they have to go to another department, that it’s not their problem. So if you look at the instances of a young family that need to be removed from community because of family violence and the person has a disability, the child has a hearing impairment, then there needs to be significant relationships around how to support the whole family to be removed from a situation that can prevent them from entering any of the systems.

So in saying that, I think there needs to be a community-based approach around what the community elders want, how they can keep their children on country, and also to make sure that the people that have significant knowledge and expertise are drawn into the equation and not left on the fringes. We have Aboriginal people with disabilities in the Territory who have extremely good insight of what’s happening in this space. If the Northern Territory government and departments can’t connect with those people then they need to find the people who can. And so not to take us out the of the equation but to make us the centre of the equation. So with all due respect to all the departments, they do a really crappy job of looking after Aboriginal people with disabilities in general. So when you add hearing impairment and communication needs and language on top of that, it’s a doubly crappy situation and


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it has to change. And my grandmother view is that I hope that the Commission will look at how to embed the rights of Aboriginal people with disabilities right in that framework.

MR CALLAGHAN: Well, it was on that note that I was going to conclude, because as much information as you both already provided to the Commission, I’m right in suggesting that it’s your intention to provide some further material to the Commission, particularly on the topic of implementation of recommendations; is that correct?

DR HOWARD: Yes, it is.

MR CALLAGHAN: Yes, thank you.

DR HOWARD: And if I can just give a personal note about the difficulties of actually impairing informed and knowledgeable Aboriginal people in that process, Jody and I, in working together, have often been – it has come about through initially me as a psychologist being asked to work with the hearing impaired indigenous person to do some sort of psychological review or intervention, and it’s commonly that I’ve been asked to do that and I’ve said, well, I would like to do that in conjunction with Jody, and in one particular case I said, no, I wouldn’t do it unless it was with Jody, and that was declined. And there were two more requests over subsequent years before Jody and I were actually enabled to do that together.

So that kind of empowering indigenous people who are knowledgeable and expert in that process needs to recognise those cultural and communication competencies, because the evidence that we have experienced is that, at present, it doesn’t. Unless you have, you know, a label that is recognisable to the system in terms of some professional competence, those cultural and communication competencies aren’t recognised and affirmed. And I would emphasise the need for that bi-cultural approach with people having cultural expertise and western expertise in different areas, particularly in areas of disability, that – working together to make that happen. There is too long a tradition of taking over from Aboriginal families without being adequately informed about how to support people or dumping things back on Aboriginal controlled organisations without the resourcing to do it and their ability to buy the non-Aboriginal competencies that can make them effective to do things in a bi-cultural way.

MR CALLAGHAN: Thank you.

COMMISSIONER WHITE: I would just like to ask Ms Barney a question.

MS BARNEY: I’m not in trouble for saying crap?

COMMISSIONER WHITE: You’re not in trouble. You want to do this with Auslan or lip reading, Ms Barney?


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MS BARNEY: .....

COMMISSIONER WHITE: Do you want to do it with lip reading or Auslan?

MS BARNEY: A little bit too far, sorry.

COMMISSIONER WHITE: Too far away. Alright. Ms Barney, you have had experience in – yourself in going into youth detention facilities in the Northern Territory, I think.

MS BARNEY: That’s correct.

COMMISSIONER WHITE: Can you give some examples or an example, without being specific as to the identification of any young person, of course, as to how you have observed hearing impairment playing out within the youth detention facility, such that it may be illustrative of the more general observations that you and Dr Howard have been making.

MS BARNEY: I’ve – I’ve been in the old Don Dale centre and I’ve actually been in the Berrimah prison at different times. So I understand the two facilities. Both of them are visually traumatic in the sense that if you are a young person that – I know – was kept long periods of time outside in the sun and then brought in to go to wherever he had to go, where your vision is impaired from going from bright light to a dark hall, you lose that sense of vision. So often that’s the time where the more vulnerable, where they can be – this young boy was flogged, beaten, pinned up to the wall. When his sight came back, nobody was around. So he wasn’t able to identify who those people were, to the point that I had known this young person prior to him going to Don Dale and he went from a cheeky young fella to a young man now who has been released, who’s isolated, doesn’t leave his home, has suicidal thoughts.

And it distresses me that a facility and the – I’m trying to think of the word – like, the going on in the facilities such as the top dog stuff that happens, and the mentality of people there that these young people are insignificant. And the fact that his communication is impaired because of his hearing impairment, hadn’t actually been able to disclose any of that for many years. So I’ve been visiting that family for about six years now and, in saying that, when I found out that the young people are now going – they are actually now in Berrimah, it frightens me even more that such a facility is visually traumatic, that they are walking along walls, their backs are to the walls so their visual space is something they can look at predictability; they are constantly feared. And being locked up and guards coming in in the middle of the night for searches, unaware, their sense of safety even in their own cells is quite traumatic for them.

I want to take them all home, sort them out, but I think there are young people there that need to be there for – for the time, and they actually have an understanding of that in some way. However, the facilities are inadequate. There is no auditory systems to support any form of sound amplification. There’s no visual alarms


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around fire safety if there’s an emergency, if sirens are going off. If your frequency of hearing loss is where you cannot hear that, then you – then you’re in trouble. So, you know, not only the fear of a fire, the fear of a guard or somebody coming up behind you. Facilities such as – for detention centres need to have a holistic, universal plan. There needs to be good lighting; there needs to be good amenities for young people not just with hearing impairment but other disabilities as well. That’s not happening here. And if we have to detain young people, then they need to be in a universally acceptable place where they are able to participate and to rehabilitate in a way that they are able to participate fully. If that’s not there, then they don’t.

Young people that I have seen since the closure of Don Dale have said that it’s their worst nightmare. Many of them have asked when will it be burnt down. I don’t know how to respond to that. And I think that the – the Commission has a very powerful place in providing some type of awareness to young people that they are – there is a place for them to be for the time they have to be, but it’s a place of – I can’t – therapeutic interventions that can support them. Because we have a young population, these are our elders in waiting, and I would like those young men and young women with – you know, who are there to be able to go home to country and do the roles that they are being born to do, and to do that, we need to make it accessible. We need to make it a place of safety.

COMMISSIONER WHITE: Can I ask you this finally, then: do some of the young people who are in youth detention centres in the Northern Territory, to your knowledge, have hearing devices, hearing aids of some kind, and if so, do you know how they are managed in the detention centres?

MS BARNEY: Some of the young offenders had their hearing aids taken off them. Many have had hearing aids where they haven’t had access to batteries. Some have had them taken off because they swallow the batteries. There’s no amplification devices, anything that they can use. So often they don’t have anything. Since being released, some of the young people are just now starting to wear hearing aids or one I know in particular has had a cochlear implant which has made a huge change for him in that sense. Those who are signing deaf are learning Auslan. So there is hope for these young people, but in the centres, no, none of them had devices that were actually working or allowed for all sorts of reasons.

COMMISSIONER WHITE: Thank you. Thanks, Mr Callaghan.

MR CALLAGHAN: I have no further questions at this stage, Commissioner.

COMMISSIONER WHITE: Ms Brownhill, do you have some questions?

MS BROWNHILL: I have a couple, yes.



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<CROSS-EXAMINATION BY MS BROWNHILL [3.10 pm]

MS BROWNHILL: Firstly, some questions for Ms Barney. You referred in your evidence to having worked with young men or youths in the Don Dale Detention Centre, and I take it that they were youths with hearing loss or hearing impairment.

MS BARNEY: That’s correct.

MS BROWNHILL: Are you able to say how many such youths you worked with?

MS BARNEY: Eight directly. Indirectly, about 15 over 10 years.

MS BROWNHILL: Are you able to give us any more details about when you worked with those youths?

MS BARNEY: I’m very conscious of the question, very conscious of my response. And the reason I’m conscious of my response is that the time frame that I would give you may identify them, and in doing that they are – have asked me not to give the time frame. My time frame is between 2006 and 2010, and I say that because of the work that I’ve done up here with other young people, however the young people from Don Dale have asked me not to, because they are fearful of payback.

MS BROWNHILL: Sorry, just to be clear, it’s your evidence that these young people have asked you not to indicate in this Royal Commission the time period in which you worked with them.

MS BARNEY: They have asked me not to identify them.

MS BROWNHILL: I see.

MS BARNEY: And in saying that, that would identify them in the time frames. But I can say that I have worked with them between the periods of 2006 and 2010. However, I can’t say when, who, how many.

MS BROWNHILL: Well, I’m not asking you to say who by any means, but I’m asking you to give as clear an indication as you can of when you did this work.

MS BARNEY: Between 2006 and 2010.

MS BROWNHILL: Okay. And in that work, you attended at the Don Dale Youth Detention Centres?

MS BARNEY: Sometimes, yes. A couple of times, but mostly with family.

MS BROWNHILL: Are you able to say how many times you attended those centres?

.ROYAL COMMISSION 20161013 P-263 HOWARD/BARNEY/ XXN©Commonwealth of Australia Transcript in Confidence MS BROWNHILL

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MS BARNEY: To my knowledge, many, many times. But I would have to go back to my records to get specific numbers.

MS BROWNHILL: Could you indicate whether it’s, say, 20 or 10 or 50?

MS BARNEY: No. It would be less than 20 times.

MS BROWNHILL: 10?

MS BARNEY: No, I think more than that. Yes.

MS BROWNHILL: So somewhere between 10 and 20?

MS BARNEY: I would have to go back to my diaries and check those times.

MS BROWNHILL: And the period you said, sorry to have missed it, 2006 to 2010?

MS BARNEY: ..... yes, that’s correct.

MS BROWNHILL: I understood your earlier evidence to be that you had attended the Berrimah facility, which is now the current Don Dale Youth Detention Centre.

MS BARNEY: Yes, for adult prisoners, yes, at the time.

MS BROWNHILL: So you attended when it was the adult prison.

MS BARNEY: Yes. So that’s why I’m aware of both facilities.

MS BROWNHILL: I see. So you haven’t been there since it has been reopened as a youth detention facility.

MS BARNEY: No.

MS BROWNHILL: Okay. Thank you. Dr Howard, some questions for you, now. Your evidence about hearing loss amongst Aboriginal people is essentially to the effect that it’s a consequence of life on remote Aboriginal communities.

DR HOWARD: No, it’s a consequence of disadvantage, and people who are living on remote Aboriginal communities often have greater levels of disadvantage, but it’s also prevalent amongst urban Aboriginal people as well.

MS BROWNHILL: I wasn’t – I certainly didn’t understand you to give any evidence about urban Aboriginal people suffering from hearing loss in your oral evidence. Are you able to point to that in your written statement?


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DR HOWARD: There are some indications in terms of prevalence levels that refer to prevalence levels from studies in remote communities and in urban circumstances. There’s one article by Kelly in Western Australia in the ’90s who did research on the prevalence levels in remote communities and urban environments and found that there was – that the more – greater proportion of people in remote communities had middle ear disease and hearing loss, but it was still evidenced in urban communities as well.

MS BROWNHILL: But it’s a vast difference, isn’t it, between the - - -

DR HOWARD: Yes, it’s a greater difference.

MS BROWNHILL: So much higher when people come from remote Aboriginal communities.

DR HOWARD: That’s right. Yes. Yes, that’s right.

MS BROWNHILL: And you have given some evidence about the conditions for people with hearing loss, both in the youth justice system and in the detention system in particular. Do you have an understanding of the proportion of Aboriginal people in youth detention who come from remote Aboriginal communities?

DR HOWARD: I don’t know the specific proportion at this particular time.

MS BROWNHILL: And, similarly, do you have any understanding of the proportion of Aboriginal youths who are generally within the youth justice system who come from remote Aboriginal communities.

DR HOWARD: I know it’s quite high. I couldn’t tell the specific numbers.

MS BROWNHILL: Thank you. Thank you.

COMMISSIONER WHITE: Thanks, Ms Brownhill.

MR McAVOY: May the witnesses be excused.

MR O’BRIEN: I’ve just got two questions.

COMMISSIONER WHITE: How does that relate to your client?

MR O’BRIEN: Well, the two issues are clarifying something that the Solicitor for the Territory asked in relation to payback.

COMMISSIONER WHITE: Well, what - - -

MR O’BRIEN: Well, retribution is something my client’s concerned about, and I would be seeking to ask about that to - - -


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COMMISSIONER WHITE: I still fail to see how it comes within these witness’ expertise.

MR O’BRIEN: No, it’s not from expertise; it’s from her own experiences with the detainees that she was dealing with in Don Dale Detention Centre. She gave the answer .....

COMMISSIONER WHITE: Please use people’s names, Mr O’Brien, not she.

MR O’BRIEN: Sorry?

COMMISSIONER WHITE: People’s names, not she.

MR O’BRIEN: Sorry. So I’m referring to the Solicitor-General’s evidence from the witness in relation to the fears that she had as to not identifying the children that she had spoken to within the Detention Centre, because of what she said was a fear that they had of payback.

COMMISSIONER WHITE: Ms Barney articulated that that had been said to her.

MR O’BRIEN: Correct.


MR O’BRIEN: I would like to elicit out as to what payback actually meant, as far as she was aware.

COMMISSIONER WHITE: I don’t think I will allow that question. I think it’s too remote from the expertise, the evidence that we’ve heard and your interest in it. There will probably be other witnesses that you can manage to deal with that question.

MR O’BRIEN: Very well.

COMMISSIONER WHITE: Thank you, Mr O’Brien.

MR O’BRIEN: The second issue that I would seek to ask the witness about is the issue of the effect of isolation on the hearing impaired.

COMMISSIONER WHITE: And how is that relevant to your client?

MR O’BRIEN: Well, it’s not directly relevant to my client, but it’s obviously relevant to young people and children in detention who are isolated and in that predicament.

COMMISSIONER WHITE: I won’t allow that one either.


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MR O’BRIEN: Very well. Thank you.

COMMISSIONER WHITE: Thank you. Yes. Anything else, Mr Callaghan.

MR CALLAGHAN: I was going to ask for the witnesses to be excused.

COMMISSIONER WHITE: You can. Thank you Dr Howard, and thank you Ms Barney, for your assistance to the Commission.

DR HOWARD: Thank you.

MS BARNEY: Thank you.

<THE WITNESSES WITHDREW [3.20 pm]

COMMISSIONER WHITE: Thanks, Mr McAvoy.

MR McAVOY: May it please the Commission, I call Professor John Boulton.

<JOHN BOULTON, SWORN [3.21 pm]

<EXAMINATION-IN-CHIEF BY MR McAVOY

COMMISSIONER WHITE: Thank you, please be seated. Thanks, Mr McAvoy.

MR McAVOY: Professor Boulton, could you tell the Commission your full name and your present occupation?---Professor John Boulton, and I’m a retired paediatrician, so my occupation and titles are as listed. I’m an emeritus professor of paediatrics at the University of Newcastle, and I also hold an honorary professorial position at the Centre for Values, Ethics and Law in Medicine at the University of Sydney. I’m an adjunct professor of the Broome and Fremantle campus of Notre Dame, and an honorary research fellow at Telethon Kids Institute in Perth.

Professor Boulton, if you look at the screen, you will see a statement there. Do you recognise that statement?---Yes.

Could we go to the last page, please. That’s your signature?---Yes – yes.

That’s the statement that you signed?---Yes.

To the best of your knowledge, that statement is true and correct?---True and correct.

.ROYAL COMMISSION 20161013 P-267 J. BOULTON XN©Commonwealth of Australia Transcript in Confidence MR McAVOY

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And annexed to your statement are five annexures – four annexures, sorry. The first annexure is your curriculum vitae?---Yes.

The second is, for the purpose of the paperless hearing, an electronic copy of your book Aboriginal Children, History and Health: Beyond Social Determinants?---Yes.

And the third annexure is a document titled the Kimberley Alternative Justice Strategy?---Yes.

And the fourth annexure is the bibliography?---Yes.

To your statement?---Yes.

Which sets out the references you rely on. And – sorry, and a fifth annexure, which is a document prepared by you on epigenetics?---Correct.

Thank you. I tender the statement and annexures, Commissioners. I also intend to tender a hard copy of Dr Boulton’s book. I’m in your hands as to whether it’s tendered as a separate exhibit.

COMMISSIONER WHITE: I would make it a separate exhibit. So exhibit 27 for the statement, the annexures 1 to 5, but exhibit 28 for the hard copy of Professor Boulton’s book.

EXHIBIT #27 STATEMENT OF JOHN BOULTON AND ANNEXURES

EXHIBIT #28 ABORIGINAL CHILDREN, HISTORY AND HEALTH: BEYOND SOCIAL DETERMINANTS BY JOHN BOULTON

MR McAVOY: I will hand that up now.

COMMISSIONER WHITE: Thank you. Perhaps we can boost the royalties, Professor Boulton, by recommending it to the people in the courtroom. Thank you.

MR McAVOY: Professor Boulton, on the first page of your statement you’ve set out your professional background. In particular, I note that you held the position of regional advisor and senior regional paediatrician, Kimberley health region in Western Australia between 2005 and 2015; is that correct?---Yes.

And that work, in particular in the Kimberleys, informed much of what’s contained in the – your book?---Correct. But on a background of a career long interest in Aboriginal child health - - -


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Certainly?--- - - - and involvement in Aboriginal health in both urban and regional centres.

And, now, in your academic career – this part of your academic career, you’ve got a number of current projects?---I have.

Could you just explain to the Commission briefly what those projects are?---I’m a primary supervisor for a PhD student who’s working on children’s nutrition in Wyndham in the east Kimberley. We are looking at food security, which is an interest of this PhD student also of mine, because of the very long history of malnutrition across generations, and my concern that malnutrition continues and there’s – as everybody’s who’s familiar with remote communities knows, there is a huge problem of both proximal food security and, basically, children getting enough to eat. The second ongoing project I have is with colleagues at Latrobe. It’s called Our Stories, Our Lives – Maternal Aboriginal Women Speak from Shepparton. So this is parents amongst Yorta Yorta families, and what we are looking at, using a narrative approach, is the continuity of culture and tradition within parenting across generations, and the young women who are involved – their fathers are still young enough to have been brought up on the mission, and certainly their grandfathers and great grandfathers were the – were the leaders, the most – in a way, the most famous Aboriginal leaders in Australian history with respect to the whole question of Aboriginal sovereignty. People like William Cooper, and I’m very privileged to work with the people in Shepparton.

And, indeed, you’ve come directly from that - - -?---Shepparton.

- - - work in Shepparton to Darwin for this hearing?---Yes – yes – yes.

Please continue?---The – I’m consulting a project on the relationship between birth weight in children born in the Northern Territory and their performance at the school entry on the Australian early development census and also on NAPLAN. I’m just a consultant on this, and an advisor. And I’m also involved in finalising my work in the Kimberley with respect to a study on mortality. I’m very concerned about the very high infant mortality in the Kimberley and so undertook an audit in 2005 to ’10, and then 2010 to 2013, before and after intervention with respect to children presenting with fever. So these are little babies where their mums presented in a remote opportunity with a temperature, or say they have had a high temperature, and we have a – they had a high death rate from sepsis of these babies from a whole lot of very complex reasons, and by having a very rigorous program of looking after these babies and toddlers we nearly halved the post-neonatal mortality rate. As well, I’m just about to publish a study on growth of children at Fitzroy Crossing before and after the alcohol restrictions were introduced in 2007, and this shows a marked difference in weight at age 1 year between children who are born before and after the alcohol intervention. And with respect to international health, I’m setting up a formal academic link with the Vanuatu Child Health Network to support my friends and colleagues in child health in Vanuatu, so they have a support with respect to education and village research, and so they can engage in and have access to a


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university library, which at the moment they don’t have. So this is a very simple and helpful – for them, helpful thing to do with – in terms of resources. So those are my main – my main academic activities.

You’re managing to keep busy?---Yes. I have some civic activities which are not relevant for this committee in terms of social capital in Newcastle.

You’ve said at paragraph 6 that this statement is based on your academic analysis of the root causes of the high rate of criminal behaviour amongst disadvantaged children in rural and remote Aboriginal Australia. Could you just elaborate on how it came about that you became interested in this area, and then went on to investigate it further, and eventually publish on it?---Okay. So when I left my teaching hospital position in 2005, and went to the Kimberley, I wasn’t surprised by what I had seen because I had had experience in remote areas before, but I guess what did surprise me was the lack of change from when I had been a young doctor in the 1970s in West Australia and subsequently, and also the lack of understanding amongst my devoted colleagues, nurses and doctor colleagues, as to what – the origins of what they were seeing. Because they were – they came from an urban western – obviously western framework, and were used to treating the serious and life-threatening diseases, which they did extremely well, but many of these devoted nurses had spent time in third world and they would say to me, “You know, I’ve been to whichever third world country, with – “ for example, Médecins Sans Frontières, “and I can’t understand what I am seeing: we’re in Australia, this shouldn’t be happening.” And so I wanted to write a book which explained why this was, and take my experience as a children’s doctor, really concerned about families and put it – take it from both a scientific level through to the humanitarian and – through to – actually to the ethical and moral basis, which of course is what this Commission is grounded in, as to what we as children’s nurses and doctors could do, and should do, beyond doing our nursing and doctoring. Because we have a moral responsibility to improve the state and outlook of health for children in remote areas.

And so the book focuses on endemic growth faltering. Can you explain what that term is and - - -?---Yes. Okay. So I could have used any serious medical condition. Growth is something that is of great interest to every person, because of our own children and grandchildren and it’s one of the delights of being a parent and grandparent to see children grow up. It’s a source of eternal interest, and we admire babies and say, how chubby they are, and how strong she looks, and how energetic she is, and she’s just like her granny at that age, etcetera. So growth reflects our pride in our children as a community. Children who are malnourished don’t grow properly. So not having enough food to grow at a very critical stage in life, the end of the first year when breastfeeding is – does not provide sufficient calories to allow proper growth, causes a delay in the movement on to the childhood pattern of growth and causes eventual – the adult, the eventual adult, to be shorter than he or she otherwise would, and also to be at much greater risk for what we call non-communicable diseases: diabetes, cardiovascular disease, hypertension, and this is the major cause of the premature death rate among Aboriginal people. Aboriginal


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people have a very much higher death rate in mid age, midlife, of hypertension, cardiovascular disease, heart attack, and death from renal disease – from diabetes and high blood pressure. So growth faltering is kind of central to that, to the whole human condition, and I was able to therefore by using that link my great interest in human evolution and how childhood is a – and how childhood growth represents a kind of – the kernel, the core of what makes us human, and therefore links – regardless of cultural identity, it brings us together because everybody’s the same in that respect.

What you’ve observed at paragraph 10 is that where a child’s rate of growth falls below normal, because of insufficient intake of transitional weaning food at a time when the child’s energy requirements are increasing - - -?---Yes.

- - - because of size, and physical activity from mobility, what is transitional weaning food?---So when – from six months, babies need food to continue growing at the optimal rate and so weaning or transitional foods, you transition on to – eventually on to an adult diet, is an invisible but core part of human – human society. And why it’s invisible is it – is because for most men who wrote about Aboriginal society, it’s of no interest at all. All they saw was a few babies. To me, as a children’s doctor, it’s of extreme interest because it represents the – a key insight into that particular society. Just briefly – so in Africa, for example, maize is a staple, and it’s made into porridge and that’s an easy thing to swallow for little babies. Rice in Asia, etcetera. In the Western Desert, or the central desert of Central Australia, it’s not so easy. If you live by the coast then chewed up food, turtle, and fish and kiss feeding – so the mother chews up, kiss feeding, that’s an easy way to feed babies: high in fat, high in protein. In the Western Desert it’s different, and the mothers who I – whom I – when I say interviewed, we had lovely discussions, and talks, and they were fascinated to tell me about how their grandmothers fed their babies before they saw white people. And they – this cultural memory exists. And I won’t go into the details, it’s in my book and it’s actually remarkably complicated and fascinating – for me, of great interest, but the key point is that these are very, very special – this special knowledge of how to feed babies in this incredibly harsh desert environment, that was lost at the point of colonisation. And so weaning food, or transitional food, therefore is an emblem of loss due to colonisation. And in Africa, regardless of the violence of some colonisations, or in Asia, no one lost the knowledge of feeding babies because the traditional foods of rice or maize or other staple crops – in South America there were root crops of potatoes and things, that wasn’t lost. When the Spanish murdered the Aztecs, they still had staple crops. But Aboriginal people are the only colonised people to lose their staple crop, because they were moved off their land, cattle destroyed the ground that the staple crops or the root crops grew from, and the wetlands where people took the roots and ground them into flour and made effectively bread, and that was destroyed. So that’s why – for most people, it would be of no consequence, but for me it represents a key insight into one of the profound aspects of Aboriginal society.

Thank you. I would like to take you now to your discussion about the causes of pathological disruption to neurological development. Foetal alcohol syndrome


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disorder and ..... trauma. Are able to explain to the Commission the – what your research has shown you and how it might be relevant to the work of this Commission?---So for the purposes of this statement I, in a way, categorised in order to simplify an extraordinarily complex area of neuroscience, and neuroscience is an area of which – I’m not an expert neuroscientist by any means, but I’m a highly interested children’s doctor, and therefore I’ve categorised this into two forms of damage to the neurological development of the children: foetal alcohol spectrum disorder and psychic trauma. And I say that although brain damage conjures up an image of a scar with a fixed deficit, we have to think in fact more of the way the developing brain copes with a fixed damage – or maybe even a damage that continues, so that in the – and we know that in foetal life brain damage can occur and the brain can be damaged by exposure to drugs – for example, the thalidomide disaster, or radiation, infection, the Rubella tragedy, heavy metal poisoning – for example, lead has a terrible effect – and also alcohol. The other – these toxins are faced and recognised. Alcohol less so, and that’s because of the shame and guilt associated with it, and for that reason we don’t know the extent. Nor do we know the dose relationship effect. Many women would have drunk alcohol before they realised they were pregnant, and they of course won’t remember how many drinks they had on one night, two or three years before, when they discover their baby actually isn’t – or their little child isn’t actually doing what she should be doing. And so we have no knowledge. Obviously there are – there is a huge amount of work being done on animal models, but the recommendation is that no alcohol in pregnancy is the only safe strategy, and that’s the most important message for women, which is now being very much understood.

If I might stop you there, on that particular point has there been any research done on – or findings that allow us to say that alcohol consumed at a particular stage of a pregnancy has a greater or greater affect or a lesser affect?---Yes. In the first – in embryonic life, the first seven weeks, that’s the critical stage, because the – the embryonic layers of endoderm, mesoderm, and ectoderm, ectoderm forms the skin and neural tissue, then that is folded and forms of spinal cord, and brain, and eyes, and so alcohol toxicity during that is particularly damaging.

And so for people who have an addiction to alcohol, and who are alcoholics - - -?---Yes.

- - - it becomes very difficult to avoid damage to the foetus; is that - - -?---Yes, that would be – that is – that is correct.

So that even if they do find out and stop drinking, the damage may have already been done?---Correct.

Thank you. Please continue?---So in my – in my statement I list the characteristic diagnostic features of children with a range from foetal alcohol syndrome with abnormal face, abnormal brain appearance and abnormal size through to a child who looks normal but nonetheless has disabling deficiencies in what we call her executive neurological ability.


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COMMISSIONER WHITE: Can you just stop you there, if I might, Professor Boulton. Am I right in discerning from your writings that the diagnosis of condition of FASD, as we know it as, is relatively speaking recent? The last 30 years or so?---In – from the early 1970s it became – I diagnosed children in the mid-70s with FASD, and we recognised it as such in the mid-1970s. But you’re right, that it has become much more widely recognised in the last 10 years.

Accordingly, if that’s the case, there may not have been an appreciation, amongst women who were of child bearing age, of the acute danger associated with even one or two drinks?---Yes. That is – that is correct. And - - -

And that would be across the whole community?---Across the whole community. The study in Western Australia by the people in the Alcohol and Pregnancy Research unit of the Telethon Kids Institute show the average age of diagnosis of a child with FASD was 3 years of age, and I think it’s relevant to mention at this point that the – this question of the recognition of FASD has been led by the women of Fitzroy Crossing who have put aside their shame, and the sadness and guilt they have experienced, to say that, “We are standing up to tell the people in the non-Aboriginal and the white community, face this, face this problem.” And one of my Aboriginal friends in Broome said that the metaphorical elephant in the room is FASD in the white community. And this is something which the Aboriginal nation has actually led Australia in facing this problem.

And if – you’ve just mentioned the Fitzroy Crossing experiment in no alcohol in the community. Have you discerned that that has had – as far as you can measure it – an appreciable effect on the reduction in FASD amongst that community?---Yes. The – I address that further in the report, but the analysis or review conducted at 12 months and 24 months shows a significant shift in not only a massive reduction amount of violence and women seeking refuge in the women’s refuge at Marninwarntikura Women’s Resource Centre, but also a change in drinking – although that’s hard to quantify, or quantitate, and my own working with colleagues in the Lililwan Study, headed by James Fitzpatrick, colleague June Oscar OA and Maureen Carter, show that children who were born after the alcohol intervention, or alcohol restrictions – they grow much, much better, they have – they’re much heavier at one year of age. And although there’s not – we can’t say there’s an absolute causal, scientifically watertight relationship, the association is very, very strong. And as a children’s doctor who’s – you know, very concerned about those children, I think that’s evidence that there’s a health effect of a marked change in alcohol use in that community, and that’s a landmark observation which has substantiated the benefit and the strength of the courage of those women to stand up against huge resistance from the alcohol industry and actually shift the way people drink by the alcohol restrictions.

COMMISSIONER GOODA: Professor Boulton, the – you have just mentioned the women standing up in Fitzroy Crossing. In your observation would that make a difference – like the community driving a change in alcohol restrictions make a difference to its implementation, the effectiveness of the regime they’ve got in


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Fitzroy Crossing?---The fact it was community driven – but at great cost to the leading women who did it – nonetheless they carried the community with them and so that’s made a huge difference to community – to community wellbeing, and cultural renaissance.

And it wasn’t – it was particularly women in Fitzroy Crossing who drove it? It wasn’t a government intervention?---No, it was a – it came from the women in Fitzroy Crossing and select other male Bunuba leaders.

Thank you.

MR McAVOY: Following on from Commissioner Gooda’s question, how much assistance did the Western Australian Government give in providing those alcohol restrictions?---I can’t answer that accurately, but the – the – and I’m not familiar with the complexity of the administration of laws relating with respect to alcohol, but it was – they certainly had a – they certainly had support, and I also should mention there was also some very, very brave women in Halls Creek who – against even more adversity and threats of violence achieved alcohol restrictions in Halls Creek, at great personal expense because of the alcohol industry there – the outlets owned by a different private operator, as most people here would be familiar with. And the level of – the level of conflict, which I received second hand which – obviously I was in a position it didn’t concern me, but from the – effectively, from the alcohol industry.

At paragraph 29 you observe the immense financial, and presumably social, costs of the lifelong burden of morbidity from FASD. Are you able to comment on that further in respect of Aboriginal communities?---I’m unable to put a dollar figure on it. There are estimates in Canada that for a child with FASD the lifelong costs are in the millions of dollars. If we – and I have other colleagues who are in paediatrics who have extrapolated the rate, which I get down to later on in the statement, that if there are one to two per cent of the total population of whom a fraction are severely affected with FASD, and therefore suffer the huge mental health and other subsequent complications and disabilities with FASD, then we are talking about an enormous burden to the overall Australian community in the tens of millions of dollars a year. I think the – the – even knowing how much it cost to keep a child in detention and hearing from friends who – and previous colleagues who work in the Northern Territory of how it costs to keep a child in out-of-home care, a child with serious behavioural difficulties, then you could do a back-of-the-envelope extrapolation that you would rapidly get to a figure of tens of millions of dollars for – in childhood, looking after such children. The – the – we have data from America on the – on the burden of morbidity for the individual people. These are published studies which I refer to, which I did a very limited literature research while I was writing this documentation and this is listed in paragraph 30, which show really a profound level of social morbidity in terms of violence, engagement in the justice system, depression, suicidal thoughts, suicide, very low chance of engagement in a meaningful occupation, and a very high risk of being in prison as adults, and requiring mental institution and support with drug addiction. And I guess one of – my underlying theme is this is under recognised and particularly under recognised in


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children who are in detention. That’s the main message I want to promote and advocate: that this is a problem that we have yet to recognise and quantitate, particularly with children who get involved with the justice system. These are little boys, mainly little boys, who start off messing around, running around at night, shoplifting, stealing biscuits, stealing pencils, then they are pushed through a window, and these are – these are anecdotes from my colleagues in Derby and Broome, stealing the car keys, then the car gets driven away, they blow the car by putting a match in the petrol tank, all these things have happened to my friends. Then it escalates from there. And this is absolutely the same in Canada, the – and the US, data shows that. And then we end up with children who have – who are very, very traumatised. And hearing what happened to them in the correctional centres, of course, has a profoundly adverse effect on these children with very, very poor capacity for social interaction.

However, at paragraph 31 you do give some reason for hope?---Yes. So the – now talking about diagnosis, and what we can do is concerned doctors, and nurses, and Human Services people, the first thing is obviously to understand this is a problem, the second thing to create a system where children can have a diagnosis, and the Commonwealth government supporting, through an expert steering committee, a national network of diagnostic clinics for foetal alcohol spectrum disorder, and these have been pioneered in Western Australia, starting in Broome and now in Telethon Kids Institute and, and also in the major centres in Sydney and also in Shepparton. The – so diagnosis. This is not a blood test or an x-ray; it’s a three to four hour multi-disciplinary assessment with paediatrician, clinical psychologist, speech pathologist, physio, occupational therapist and discussion with the mother, parents, carers, school teachers, and a careful analysis of the results of the how the child performs and a plan to support the child in all her or his needs. So that’s one aspect of diagnosis. The support for disability, there’s hope on the horizon with respect to the National Disability Insurance Scheme, and the problem which paediatricians face is that we are still not quite at the stage where FASD is required by the NDIS. So that would be a hugely positive step for FASD to be recognised and therefore could be – so parents could receive the support that these poor little children need. Another aspect is obviously for children who are within the justice system, and from my discussions with a magistrate in Broome, a problem that he has or had is that he would like to have a child assessed but it’s the duration or the – if there is a long waiting time, then the child may be in remand longer than they otherwise would be – would be for a minor offence. And so in one of my – my colleague, James Fitzpatrick, instituted a situation in which a child who needed assessment could be assessed at a fast turn around, and that is something that really should be implemented nation-wide. So a magistrate can say, I can see this child is – has a – I’m concerned about the possibility of an intellectual disability; I really need to have this little boy or girl assessed, and that can be done quickly, not a two or three or five month waiting list. The next thing is what about – a situation such as in Fitzroy Crossing where there are many children who – whose behaviour is really a very challenging indeed. And I am a very peripheral part of a national health and medical research funded program in which the children are helped to enhance their self, what we call self-regulation, through the alert. This is a trademark registered program


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which has been validated, and this program has been implemented through a specialist team based at the Telethon Kids Institute in Perth and being implemented in the schools in Fitzroy Crossing and the district of – in the Fitzroy Valley to help children, and it’s program that’s actually done by the school teachers. So this is a very, very good team – a team approach between the experts involved and the school teachers. So those are – those are some optimistic and positive things that we are – that the people on the front line are trying to do, and this absolutely needs to be supported.

Thank you, Professor Boulton. If we can just perhaps go back a step. Are you able to explain briefly what the – what’s happening in the brain to cause the loss of self-regulation and the behaviour that is demonstrated in sufferers of FASD?---One of the key attributes of being a human is that we think about what we are doing, although that, as we know, is soluble in alcohol and people make fools of themselves. But that gives a clue to the function of what we call the pre-frontal cortex, which is part of the brain which is the captain of the ship with respect to steering our course on the morally correct pathway. And the pre-fontal cortex develops in early childhood in a situation of love, care, a warm attachment to carers, a loving community, a loving family, a loving community, and with optimal opportunities for intellectual inquiry, exploration, being inquisitive, and then understanding the outcome of one’s actions. From a little toddler of two understanding that she shouldn’t put her fingers in the electric socket or near a hot stove through to by three and four, a sense of embarrassment at a slight social gaffe. And so that evolution of the sense of self and the sense that – which is called theory of mind by psychologists, that this little person of three knows that I know what she’s thinking and she knows that I know what she’s thinking. And clinical psychologists have charming experiments in which they investigate the evolution emergence of theory of mind in three and four and five year olds. Now, with children who suffer from foetal alcohol spectrum disorder, that very, very subtle neurological function is impaired. And they don’t understand the consequences of their action. When they are three and four, they don’t understand that hitting and biting the little girl they are playing with is actually going to make her really, really upset and cry, and that she’s not going to want to play with them tomorrow or that afternoon. And from that terribly simple little example of a – which you can imagine for your children and grandchildren in day care and preschool, it escalates to children at four and five who are supposed to be sitting listening who are actually causing chaos in the classroom by not being able to sit still and not understanding that if they shout or hit the little person next to them, this will actually cause the teacher to be upset. And then we can progress through to a situation where a child of nine or 10 who, in an ordinary circumstance, would have an extreme understanding, extremely nuanced and finely regulated or finely advanced system of self-regulation to do with how they behave in different social situations, with their family, with their friends, or in public, to a child who doesn’t have that sense at all. So they have no sense of predicting the future or making a decision which is clearly going to be dangerous, like running away or running across the road or exploring an area where there are dangerous animals in the bush or a creek in the Northern Territory, etcetera. So you can imagine the consequences. The social consequences are extremely distressing for the parents and carers.


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Thank you. I would like to now take you to - - -

COMMISSIONER WHITE: Can I just stop you there for a minute, just to follow that up. What, if any, insight do those children afflicted in that way have about their behaviour?---That has not been formally investigated, and we clinicians have only a glimpse of that in the way certain children talk about how they – how they feel. And the – I suppose the best example is one little boy – well, he is now actually quite a big boy, and he’s called Tristan, because there is a film called Tristan which is being shown by June Oscar at the United Nations Indigenous People’s Forum about this boy who is fostered by one of his relatives and he talks about how he would like to be this but really he knows he is different. And you probably – the Commissioners have probably seen this film and it’s actually very, very touching, and the point is that one feels the tragedy of this little boy realising that he is different from other children but doesn’t know why, and that he would like to be a policeman to help people behave nicely and kindly to each other, but realises he’s not going to be that, because, as he says, people should be kind to each other. So it’s extremely poignant insight into this 14 year old boy’s brain. What we do know from the figures on self harm and suicide and known depression, that most children must feel terrible a lot of the time. They must feel trapped within a situation or that they are trapped in a body, in a brain, where they feel completely different, they realise that there’s something wrong and they feel profoundly sad and really just want to end it. The American figures – when you’re talking about 30 to 40 per cent suicide, I mean, that’s an appalling reflection on how people must feel, that life is just not worth living at all. So that’s the only indication – or at least the only insight we can get to answer the Commissioner’s question.

MR McAVOY: I would like to take you now to some discussion about the disruptions to the normal pathway of neurological development that’s covered in your statement and in particular both in relation to early life trauma from paragraph 32 and then transgenerational trauma from paragraph 40. Are you able just to explain those concepts to the Commission?---So I think it’s part of accepted human wisdom that the quality of a child’s early environment determines the future. But over the last decades this is what I call self-evident feature of the human condition has shifted into the domain of neuroscience and so I read in a medical journal, the first year of life represents a critical period during which the trajectories of health, vulnerability are determined by the complex interplay between biological, genetic and environmental conditions. Now, every Aboriginal grandmother will tell you that. That’s not rocket science; that’s every sensible person knows that. So the question is, why and how has it become so popular amongst neuroscientists? Now, in parallel, Professor Michael Marmot, who has had a lot of literally air time because he’s just given the Boyle Lectures, focus on the effect of poverty as a cause of the childhood differences in health status and later morbidity. In his three lectures, one of which is focused – entirely concerned with children, he describes in meticulous detail his research in England and – or Britain, I should say, and throughout the world, because he’s chair of the WHO committee on social determinants of health, how poverty affects health and in particular children. My point is that poverty itself doesn’t explain the extent of the difference in health status and risk of preventable


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but life-threatening disease and death amongst remote children in Australia. Of the children I dealt with in a paediatric – my particular child protection capacity, the most disadvantaged children in Western Sydney, many whose parents were, in those days, heroin addicts and mothers in prison, they still stood a better chance of health than a gorgeous little kiddie in Wonka Jonka who is, you know, the great granny of one of my friends. So why is that? And that’s what, as a children’s doctor, really, really, concerns me, because these little children in the communities in the Fitzroy Valley are much loved, very much loved, and yet have terrible outcomes of health. So I think the point is that new understandings of what I call molecular biologically and neuroendocrine mechanisms, this is really, in ordinary language, which is how labs – laboratory scientists - - -

COMMISSIONER WHITE: Professor Boulton, do you think you could just slow down a little?---Sorry.

Now, everything you say is being taken down. Thank you?---Beg your pardon.

Thank you?---So now laboratory scientists are now showing how the brain is affected by these adverse circumstances. So this is the new understanding. And I’ve listed in paragraphs 35 and onwards a few key features from the – from the research literature showing that actually the brains of children from poor families and from families in which this violence are actually different, and the key point is that fear – fear damages brain growth. There is not enough energy left for the child to explore and to use – as being an inquisitive little person, which feeds into the way little children from – from eight to nine months when they start crawling around through to three and four, their little brains, you can almost see them growing, because every day the world is so exciting and interesting. If a child is brought up under fear, in fear, that doesn’t happen. And we now know – and this is the new point: we now know that actually the brain is altered. It doesn’t – the brain itself doesn’t flourish. Now, I’m not a neuroscientist, and I only know these things – these – these in principle. I’ve read the papers but I don’t pretend to be a neuroscientist at all. The other point is that alcohol abuse has got a key place in this. Ernest Hunter published a book – sorry, a psychiatrist in the Kimberley, and then for decades in the Cairns and running the Centre for Remote Mental Health in Cape York. He documented the effect of alcohol in violence. This has also been documented by people in the Cape York Institute, and famously Noel Pearson, and Hannah McGlade, the Noongar author in her book about child abuse, documents the effect of alcohol. In terms of its history, then in the Kimberley, well, and in the Northern Territory, then alcohol became available for Aboriginal people to use at a certain date. I think it was in the ’60s. And the – its use is clearly described both in informal oral history, for example, the charming book about the Fitzroy – the stories of the Fitzroy Drovers, Raparapa, which I have re-read recently, and some of the old men born in the 1920s say alcohol came in and people were drinking badly. They weren’t sitting like white people in the Fitzroy and having one beer; they were drinking all day. So they wrote that, told those stories, the – I guess the 1980s, and formally, the academic Maggie Brady from ANU is documenting this in a book which she has allowed me to see a chapter, and to help me – to inform me about this. The key point is that in Fitzroy


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Crossing and Halls Creek and I’m sure throughout the Northern Territory, women didn’t start drinking until the 1980s, so this is a new feature. And then paragraph or point 38, I talk about early life trauma. So the consequences of early life trauma is that it’s causally associated – it causes a very high risk of self-harm and suicide in children and youth. And the risk of Aboriginal children and suicide has been highlighted repeatedly in the national press because the tragedies particularly happening in the Kimberley. I hesitated, because I was going to mention, but I won’t, the communities where this happened, because it was extremely – it is extremely distressing and caused enormous distress, these little children as young as eight and nine should hang themselves, because, typically, they hang themselves. So early life trauma is also associated with a very high risk of mental illness later in life. So early life trauma, I describe as a toxin with far-reaching consequences through adult life. So early life trauma from fear is a toxin. And the evidence for the risk from early life trauma disrupting the pathway, the trajectory, of the child’s emotional development, this provides a glimpse of its effect in terms of the risk of depression, suicide, and, importantly for this Commission, antisocial criminal behaviour. And I reference reviews in the annexure with respect to the extent of this. I now go on to transgenerational trauma.

I was going to direct you to the chapter – the paragraphs on transgenerational trauma. I’m going to ask you to do it – to discuss transgenerational trauma in a bit more summary form, Professor Boulton?---Okay. This is a very fraught topic, and the reason is that there is a – both amongst historians there is conflict at a level of theory which leaves people who are involved with Aboriginal wellbeing at a loss to understand their lack of engagement in the evidence for historical trauma, and I won’t go into that because it is a very fraught topic. And the other issue is the difference, and I should say the difference between the molecular evidence for transgenerational trauma, the scientific evidence from public health and epidemiology, if you like, about the risk of depression of children who survived trauma, and the – the use of this knowledge of – for good or less good, for harm, amongst Aboriginal people. And the reason is that the role of genetic investigation has – with very good reason, has a very, very bad reputation in amongst Aboriginal policy. Hopefully, in Australia, this will be reversed through the brilliant work of the Board of the National Centre for Indigenous Genomics who are trying to realign the ethical considerations of science with respect to Aboriginal wellbeing and cultural – cultural understanding . I leave it in fairly theoretical terms, because the details are difficult, but my interest in this is through the legacy of violence on the colonial frontier, which is – is still mostly forgotten outside the Aboriginal world, followed by the extreme deprivation suffered by Aboriginal families through at least the first half of the 20th century. And I’m familiar with the microhistory of people in Fitzroy Crossing, Halls Creek, Wyndham, Derby, all of whom suffered but in different ways. And this was characterised by malnutrition, poverty, high rates of physical disease and emotional stress. And the question of what the effect this has on children nowadays who experience early life trauma for exposure to domestic violence and drug and alcohol abuse. So I propose that this itself is an outcome of transgenerational trauma on their parents. So the effect on their parents is to create a situation where, tragically, their own children and grandchildren are exposed to more


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violence and the philosopher and ethicist, Professor Deborah Bird Rose, calls this doubling of violence. That’s the way that violence is recapitulated across generations, because the effect of the original insult two or three generations before. And say that although the general public is aware and sympathetic to the acknowledgment of the effects of colonisation on the fabric of Australian society, including transgenerational trauma, as a nation, we do not – we have not come to grips with this. And as I said, there are three levels to this: The molecular biology, the public health epidemiology or the clinical evidence, and the emergence of its recognition within indigenous societies a cause of intergenerational violence and mental ill health. So I think there is – I say there’s a gap between the last two in terms of how this is understood within Aboriginal society as well as within community controlled health services and other NGOs. But I am aware of the emergence of specific healing programs both amongst Noongar people in south-west Australia and other places in – actually, many other places which I won’t detail.

COMMISSIONER WHITE: Thank you, Professor Boulton.

MR McAVOY: I just want to take you, lastly, Professor Boulton, to the last section of your statement dealing with approximate origin of behaviour that puts children at risk of harm, antisocial behaviour, involvement with youth justice. So that’s paragraph 65 onwards?---So on the back ground of this understanding of effects on the developing brain, there is yet another underlying point. And this is a – a – from my interest in childhood and in different societies, my hypothesis is that there is an invisible conflict between the foundation constructs of Aboriginal parenting with western practices and values. And I say that these deficits in parenting occur where previous structures that previously found the boundaries for moral behaviour, education and physical safety and lasted and thrived over 60,000 years were previously fixed but are now lost. So the resilience of growing up children in the Aboriginal way, particularly with respect to autonomy of the child, paradoxically contributes to the failure of successful parenting when all the previous external structures with regard to teaching children how to behave, ritual learning and the steps of initiation which created the optimal environment for internal regulation and social maturity are now no longer in place. We heard earlier on that knowledge and wisdom were reciprocated with respect and responsibility. We also heard from the various speakers that the fear of the senior men that respect was being lost and their responsibility was being eroded. So that’s the other dimension of this problem. And I describe in my statement the fundamental point of difference is with respect to the autonomy of the child. Now, I will skim over this, because it’s a quite a detailed concept, but the – in pre-modern – in a pre-contact Aboriginal society, and I’m sure still it’s a very strong belief in many places in the Northern Territory, the child spirit comes from a place of totemic strength. It is something that we westerners admire enormously. And so the child’s spirit belongs to the environment, belongs to that place. And that’s what we recognise – as westerners as outsiders recognise as the strength of belonging to country. So the parent, being given this little baby, the baby is an autonomous sentient little human being and the parent’s responsibility for her safety and growth and development and education. But the baby herself and then growing into the child has actually moral autonomy. In contrast, in western


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parenting, we see the child as a gift from God with a parent in strict control. And from there the clear documentation we had from at least the 15th century, the terrible moral consequences of the concept of sin are – we still have the echo of that in the way that children in the western model of parenting are punished, because parents own the child. They are not autonomous, they are heteronymous. The mother decides when the child’s going to eat, what she’s going to wear, when she goes to sleep, when she’s going to play and with whom she plays. That’s we take as ordinary parenting in the western model. But that’s actually heteronymous. We don’t say to a three year old, what would you like to do, would you like to go outside, see you later, kind of thing. Whereas from the Western Desert, which was actually a safe place. Apart from snakes, there weren’t large – well, it was actually a very safe place so the child was allowed to explore the environment and became extremely self-reliant. You had to be to live in that environment. So paradoxically, we get this because in an urban environment, it’s not safe for a four year old to wander around Anne Street in Broome in the middle of the night or in Halls Creek or Tennant Creek in the middle of the night, and yet wandering around at night, gangs of little kids, as little as four, I said to one, “Hey, where is your mum?” He said, “I’m just going to my camp”. The police in Halls Creek, which I document in a huge study I did, said their only concern is children roaming around at night, and that is a feature of all Aboriginal towns. It’s a huge concern to every responsible adult. And that is a paradoxical feature of the autonomy of the child of just being left. And it’s something which is very difficult to come to grips with because of the kind of moral implications of where does parenting end and where does cultural relative sensitivity exist. So that takes me to, really, the last point, which if you then combine those features with a child whose lack of age appropriate maturity, what we call self-regulatory or emotional regulation, is impaired, but also is affected by their parents’ health negating behaviour, such as alcohol, 24 hour gambling, as we heard, and I’m very familiar with and have seen regularly in Aboriginal communities, and particularly the fear of witnessing domestic violence, which itself reflects intergenerational trauma, then, of course, these children are set apart with respect to how they are going to perform on the Australian Early Development Childhood Census or later on in literacy and numeracy on NAPLAN. And I’ve taken out figures for selected communities in Fitzroy Crossing and compared them with an inner-urban area near where you live and they are heartbreakingly different with respect to the chances for education for children in remote communities, that they won’t – they will never catch up.

Professor Boulton, before I sit down, I would ask you to explain, in very brief form, the Kimberley Alternative Justice Strategy, which is set out at annexure 3?---My concern of seeing children who are heading towards the justice system led me to personal advocacy on their behalf with the justice system. This led it my being consulted by the West Kimberley Youth Justice Service who were at a loss of how to help these children. They told me, Dr John, we know something’s wrong with these children and we don’t know what it is. And I found that they themselves, good-hearted people, had actually a very – they didn’t know many people out in the remote areas. And so I went to see the State Member for the Kimberley, Josie Farrer, who is a woman who I know from Halls Creek, and said to her, Josie, we need to do


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something and this has to come from your office; you’re the leader of the community. She said okay. I then worked on an idea, a very simple idea, which I discussed with my friends in Fitzroy Crossing, and this was based on the following notions: that we should shift the paradigm from punishment to compassion; that no child should leave the Kimberley in the justice system; they should be looked after on home territory on country; and that we should treat them as though they have been referred to the child development clinic because of behavioural problems at school. And, in fact, I advocate it’s a very fine line between a child who’s, in fact, referred to a child development – in Broome Hospital because of behavioural problems at school and the same little kiddie who is caught in trouble on a Saturday night in Broome and then ends up in justice. There is a very, very fine line. And it’s really a throw, a toss of a coin, which way this little guy ends up. And that we should treat these children with nurture and support, and so from that, with colleagues in Broome, we wrote the Kimberley Alternative Juvenile Justice Strategy, which was based on a justice reinvestment model of outstation alternative programs on country, and that was submitted by Ms Farrer to the Western Australian Parliament in September 2014. I then negotiated with the Youth Justice Board which is set up by the Office of Reform of the WA Department of Corrective Services, and proposed a plan for justice reinvestment for children with intellectual disability from FASD, which was in the annexure, and that the in the public domain. And I negotiated– negotiated with my Walmajarri contacts in Fitzroy Crossing, particularly the Yanunijarra PBC, prescribed body corporate, the Ngurrara Rangers, who are linked in with the Kimberley Land Council, and these are the handsome young men who look after country in the northern reaches of the Great Sandy Desert, based in Djugerari community, and they agreed that they would really like to take boys out on country to the remote outstation – I have one in mind which I visited with an Aboriginal friend and her relatives – far out in the desert, and they have power and water, and have a situation where these little boys could be looked after and allowed to learn culture within a context of safety and nurture. And what has been missing because the in principle agreement to fund that by an Aboriginal NGO in Fitzroy Crossing that received Commonwealth funding, that did not fulfil their, what I thought was an agreement, to conduct or invest in the necessary seeding funds for the work necessary for probity, governance and particularly education. So you can imagine the safety aspects and the educational dimensions of taking a group of five or six boys of 12 to 15 200 kilometres into the desert for a week is just enormous. They are not big men who can look after themselves. They have to be got up in the morning, fed breakfast and looked after. And then – and had an interesting entertaining time during the day, learning culture but also sitting down and learning some lessons. And that needs – because this is not a 9 to 5 business; this is a 24-hour responsibility for children are known to be – have been in serious trouble. So we need to have a meticulous preparation so that then we can hopefully involve the juvenile justice system within Western Australia to invest in that. So this would be a model of – it is a model of justice reinvestment. And I think we have – as me as a children’s doctor, I have a moral responsibility to extend my professional duties beyond curative medicine to this – this whole moral business of looking after children with profound disability who are at the moment being subject to really quite


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a cruel system, even being taken away from home in children, as you’ve heard, many of whom are very, very much emotionally impaired.

Thank you, Professor Boulton. That’s the evidence I want to take from Professor Boulton now. I’m not sure – I note the time, but I’m not sure whether any of my colleagues at the bar table would like to cross-examine.

MR BOULTEN: Commissioner, may I make a respectful suggestion, if I could go around.

COMMISSIONER WHITE: Certainly, Mr Boulten.

MR BOULTEN: There seems to be a growing and collective view on this side of the bar table that this evidence about FASD is of significance.


MR BOULTEN: And we are lacking time to deal with it. We would all appreciate the opportunity to explore some practical issues about how this gets factored into the administration of justice and detention and protection of children. We have run out of time, and we would urge the Commission to find a way to either bring the professor back or to allow another opportunity to hear more evidence from him on another occasion and/or perhaps other people who have specialised knowledge and expertise about FASD. This is a very under – it is an underestimated issue and not fully understood by people at all levels of the system.

COMMISSIONER WHITE: Mr McAvoy?

MR McAVOY: Commissioners, I had anticipated that Professor Boulton’s evidence being as dense and as relevant as it is to this Commission would be called again, and I have discussed that with the professor and he has indicate that he would be happy to be called again at the – as the Commission may wish. I certainly agree with my learned friend’s observations about the relevance of this evidence.

COMMISSIONER WHITE: Yes. I think the FASD issue, together with the evidence that we have had this afternoon about deafness - - -?---Yes.

- - - throws such a complexion upon the participation of so many of these children in the criminal justice system, not to mention the child protection system, that we need to look at this carefully. And I think it’s fairly original inasmuch as the other many reports that we’ve been exposed to, which are so thorough and complete, have not had an opportunity to consider these areas of study. So thank you for that intervention, and I think that we will look at finding a convenient time. Professor Boulton, I understand that you’ve discussed this with the Senior Counsel assisting, that you would be prepared to come back to assist the Commission further in this important topic?---Of course. I’m - - -


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You might have some unavailable dates, of course?---Well, I’m here tomorrow morning. My plane is at 1.30 tomorrow afternoon, so I could – I’m available tomorrow morning.

Unfortunately, the timetable for the Commission means we are having community meetings tomorrow?---Of course. Of course.

That’s all arranged, so it’s a bit too difficult to do that. So it might be at other sittings?---Yes.

But we are entirely flexible on when that will be. So we will find a mutually convenient day. Thank you very much for the - - -?---Thank you.

- - - assistance you have given us today, and for the care you have taken in preparing your statement. I know you have done a lot of original research to do the best for the Commission, so we are most grateful for that. Thank you. Now, I know we have got some other things to deal with before we go on a bit more. So you can – what I will do is not release you from your notice to appear at the Commission; we will just stand it over to another date in which you will be informed. Thank you.


COMMISSIONER WHITE: Now, Mr Callaghan.

MR CALLAGHAN: Callaghan. Commissioners, Mr Scott Avery has been present throughout. He is scheduled to give evidence. We are in your hands and the hands of the court reporter, I think, as to how late - - -

COMMISSIONER WHITE: Well, yes. That’s the person we need to be more concerned about, Mr Callaghan.

MR CALLAGHAN: Yes.

COMMISSIONER WHITE: Yes. I’m – I certainly have got the capacity to sit on.

MR CALLAGHAN: I – I would - - -

COMMISSIONER WHITE: Well, have you got some time frames for Mr Avery?

MR CALLAGHAN: I would like to condense my questions – if it’s suitable, I will call Mr Avery, and I’ve got a tightly-focused group of questions for him, with respect to his statement as a model of clarity, and I just think it’s the opportunity to hear from him briefly.


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COMMISSIONER WHITE: Yes. While he’s here in Darwin, that’s true. No. Well, it seems to me from reading his statement that those at the bar table might take a view that is, in a sense, a conceptual and not something that would really concern you in your representative capacities, so that if you wish to withdraw at this stage of the hearing of the Commission this afternoon, do feel that you are doing us no discourtesy to go, because I know you all have offices to run. On the other hand, I would probably, because there are still meetings that we have to attend later on this afternoon, not encourage questioning of this witness apart from Mr Callaghan today. Can you feel comfortable with that? And if we need to do something else we can do it. Right.

MR BOULTEN: Can I just say, what this witness is about to say falls very much into the same category as Professor Boulton, and it covers much the same territory. And could we work cooperatively with the Commission to work out a way to try and deal with it, given we have run out of time today.

COMMISSIONER WHITE: Certainly. Certainly, indeed, we will do that. Thanks.

MS A. DAWSON: If I may briefly mention my appearance. Anna Dawson for Mr Avery.

COMMISSIONER WHITE: Yes. Thanks, Ms Dawson.

<SCOTT CHRISTOPHER AVERY, SWORN [4.39 pm]

<EXAMINATION-IN-CHIEF BY MR CALLAGHAN

COMMISSIONER WHITE: Thanks, Mr Callaghan.

MR CALLAGHAN: Could you tell the Commission your full name and occupation, please?---So my name is Scott Christopher Avery. I’m an indigenous disability researcher and I’m currently with the First Peoples Disability Network.

Mr Avery, you have prepared a statement for the purposes of this Commission, a statement with four annexures; is that correct?---That’s correct.

And that is the statement which appears on the screen?---That’s correct.

Yes, I tender that.

COMMISSIONER WHITE: Thank you, Mr Callaghan. Mr Avery’s statement is exhibit 30.

.ROYAL COMMISSION 20161013 P-285 S.C. AVERY XN©Commonwealth of Australia Transcript in Confidence MR CALLAGHAN

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EXHIBIT #29 STATEMENT OF SCOTT CHRISTOPHER AVERY

MR CALLAGHAN: Mr Avery, you’re aware of the circumstances under which we’re taking your - - -

COMMISSIONER WHITE: No, it’s 29, I’m sorry. I’m sorry, Madam Associate, but it is 30. I’m going to contradict you. That was the book – that was Professor Boulton’s book was 29. We will sort it out. We won’t waste time. Thank you. Thanks, Mr Callaghan.

MR CALLAGHAN: Mr Avery, you’re aware of the circumstances under which your evidence is being taken and you are also aware of the importance with which it’s been suggested your evidence should be viewed. So I don’t wish to be thought that truncating your testimony this afternoon does in any way diminishing the effect of your statement. But can I just take you directly to paragraphs 29 and following and make these suggestions to you, that – and I’m not going to traverse all that precedes it; I’m going to assume that people have read the statement. But can I suggest to you that you would first draw the Commission’s attention to the need for awareness of disability in the youth justice and child protection systems or awareness as to the significance of it or potential significance of it?---Yes. So that’s correct. There’s not a lot of documented evidence about the impact of disability in – on justice outcomes and in child protection. But there’s an understanding – a tacit understanding of –that it is quite significant, quite prevalent, even though it hasn’t been precisely quantified. That’s more a reflection of the lack of prioritisation that disability has had, generally, not just in the justice, but certainly in justice, and the adverse outcomes that disability has across the life trajectory for – and particularly an Aboriginal child with disability. And disability is not – it’s a great unspoken within Aboriginal communities but also in the policy domain. So it’s just to alert the Commission that this – issues of disability are a subtext and they may not appear readily, they may not come up to the surface, and just to be alert of the implications of that in analysing testimony which comes from witnesses and potentially policy experts.

And that leads directly to what I would suggest is the second point to be made arising out of your evidence, which is the need for more research in this area?---Yes. So certainly research in this area tends to be focused on the biomedical aspects of disability. So disability is broader than that. There are biomedical dimensions. So can I hear, can I see, do I need mobility. There is very little research which can help inform practice and policy around the environmental circumstances in which disability exists. So, for example, if I have a mobility impairment and I need a wheelchair in Darwin, I might have a wheelchair for that, but if I have a mobility impairment in a remote community, the impact is that is quite different. So you need to understand the environment in which the disability exists, and the other thing that is not addressed through orthodox biomedical approaches to research are the cultural dimensions to disability. So disability in Aboriginal communities, for example, I’m profoundly deaf, someone might say he’s just a bit dinbin or a bit slow, so they don’t


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identify using medical terminology or disability terminology. And often the community makes accommodations around the individual, so – which is both a blessing and a tragedy. The blessing is that some of the stigmas and labels that are attached to having a medical diagnosis don’t exist. The tragedy is that many of these people who need support don’t get them, and that lack of support carries from a very early age right through their childhood, into schooling and even into the justice system.

And one important point you make at the – in the last sentence on – or in the last sentence on the page on which paragraph 30 appears, page 7, is that despite the scale of the problem, the evidence base, at least that which is in with – which is within the public domain, the evidence base upon which to formulate policy is negligible. One consequence of that might be it might seem that as committed as everyone might be to finding solutions quickly, there may not be enough data or reliable material upon which recommendations can be made that would achieve that?---One of the credible impacts of the lack of database, and this is historical, even when you compare it to things like the health performance framework which has quite robust data, you can understand and make good policies around things like chronic disease, the disability data base would be 30 to 40 years behind other sectors. So regrettably you need to talk in probabilities and likelihoods and draw disparate pieces and knowledges to kind of go, look, this is a real problem here. So the starting point which is a recent survey from the Australian Bureau of Statistics, the National Aboriginal and Torres Strait Islander Social Survey, said that 45 per cent of all Aboriginal people have some form of disability. 7.7 per cent of that is profound. When you do your age adjustments, that’s twice the general population. So that’s a starting point because they only survey adults over 18. So they don’t talk about young children, so they are missing things like the true impact of foetal alcohol spectrum disorders. They don’t go into any form of institutions such as prisons, so all of that – they don’t interview, for example – capture homeless people. So that 45 per cent is the absolute bedrock low point. And when we talk to the legal profession, particularly in the Aboriginal Legal Services, they use numbers like 60 to 70 per cent, and some in Western Australia, one lawyer we spoke to recently, said, you know, 90 per cent. But they are using that – they are using some probability because it’s gut instinct because the work has not been done in understanding the prevalence and what can be done in terms of policy.

And in the absence of an evidence base that would allow that to be done the way you might like it to be done, what you suggest in paragraph 31 is an approach in justice policy and practice in which the potential significance of disability is, in effect, assumed in all cases; is that right?---Well, it’s certainly to understand the subtext, and when you look at the numbers, it’s more likely to exist when Aboriginal young people come in contact with any form of institution, be it the child protection system or the justice system. It would be more likely to be present than not and to – but by the same token not spoken of. So just to alert that there’s this subtext that’s sitting there. We can’t quantify it and prove it to a scientific standard, but certainly the community knowledge, the tacit knowledge that exists, even broadly within people who work in the sector, they know it’s there, they know it’s significant, and that’s


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why we are saying we probably need to improve the linguistic competency of disability. That’s one aspect through research but also through practice. So, for example, having people who have competency and expertise in disability co-located with legal services in the same thing. So the legal profession can look at – deal with the legal issue, but you have an equivalently qualified disability expert there that the legal people can refer to if they have concerns about the person’s capacity.

And is that in part, at least, what you get at in the second part of paragraph 31 where you suggest that the default approach is not only to make an assumption, but it’s also a holistic one?---Yes. Because it’s a great unspoken, we need to – we need a Commission like this to actually uncover and interrogate disability, because it is not spoken of. And so the default position, I would say, is to be alert to the fact that disability is an impact on how people present themselves in any form of representation, whether it be this Commission, whether it’s in any courtroom, whether it’s in a school. So we need to assume it is more likely to be a factor than it is not.

And the final aspect of your statement that I wish to draw attention to is introduced, I think, in paragraph 36 where you speak to the concept of a policy translation group. You pick that up again or you develop that through to paragraph 38. I suppose we would like to know a little more about that; the concept of the policy translation group, who’s on it, how does it work and how does it survive a political cycle. They’re the – it seems to me, to be some key questions which we will need to address?---Yes, well, I suppose the issue – the issues of Aboriginal disability are so great they are not going to be solved in any one particular political cycle. So I think it needing a broader commitment to this. Now, the notion of a multi-disciplinary approach to this, it is based on this concept of understanding the impact of disability across a person’s life trajectory, particularly if you are an Aboriginal person. So in our statement we actually put together a table which basically puts the – you know, how does disability – how do the barriers, if you’re an Aboriginal person and disability, interact and cause adverse impacts across a person’s life. So from – from the environment they are born in through childhood, through teaching – now, to construct that, that particular table involved 13 researchers, professors from right across, including disciplines. So paediatrics, rather, child paediatricians. We had psychologists. We had people who understood the legal system, the legal administration system. We had people who understood the construction of legislation. We had people who had expertise in post-release rehabilitation, community-based post rehabilitation. So if you want this whole support, you need to bring in together. Because the issue with disability is support services to a person with disability are very siloed. So you have an Education Department, a Health Department, a Justice Department, legal department, and researchers can organise very similar. So you would have a Faculty of Health, you would have a Faculty of Education and so on, Faculty of Law. What – there is no natural home for disability in that. So what we need to construct is a natural home. So this disciplinary group, we have started this process through our research network to bring that together, but it’s one thing to do research, it’s another thing to have research as relevant that can actually drive changes to policy and, you know, people in the working courts and in


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the classrooms and things like that. So we need a mechanism to take this research and an equivalent sort of multi-disciplinary group which sort of says, you know, bring together representatives from justice, disability, health and that and going how do you actually find this total solution. Because the problem with disability is you might get little snippets of support, but if you move from one part of your life to the next, there’s no continuity in support. And often if you move, for example, from early childhood to the school year, it’s like you are resetting the clock. Because there’s very demarcated siloed structures.

MR CALLAGHAN: Resetting the clock.

COMMISSIONER WHITE: We can continue, can’t we?

MR CALLAGHAN: Yes, I think so.

COMMISSIONER WHITE: The lights have dimmed but not gone out.

COMMISSIONER GOODA: Mood lighting.

MR CALLAGHAN: I’m sorry. Please finish what you were saying?---Yes. So the concept of this – so this is some of the research – is to make sure (a) first thing is to have the research that’s done, the second thing that it’s relevant and can drive change. Because we really want – that’s what this research is about, it’s just driving change. What is a better system of justice, which is based on wellness and healing in which disability is supported, rather than the default where it’s punished, and it’s not just through police and that. You are seeing it in schools now where you have children with autism put in cages and isolated. You know, that’s a default. So we want to sort of say if you want to go through early intervention with respect to the terms of reference of this Commission, you need to understand how the barriers interact, and they don’t just sit in one area. There is no one profession can carry the burden for this. We need to bring professions together to provide a different kind of solution.

Commissioners, irrespective of the condition of light, those were the areas in Mr Avery’s statement which I wanted to open up at least this afternoon. It’s more of an introduction than a final word, I would suggest, on the basis of what Mr Boulten said, anyway.

COMMISSIONER GOODA: Mr Callaghan, just one point.

MR CALLAGHAN: Of course.

COMMISSIONER GOODA: Mr Avery, I’m aware of the work you’ve done. And we are looking at it from a particular perspective of people in detention or child protection?---I’m sorry; I’m having a bit of trouble hearing.


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What about the issue of victimisation of people with disability?---Stigmatisation, was that?

Victimisation?---Victimisation.

Yes?---So one of the factors that people – we have detailed some of the reasons why you may not hear people talk about disability from their own perspective, and one of the issues that – is that stigmatisation or victimisation. So I have encountered this where there is a progressive sensory loss, both hearing and visuals, where someone said, look, I could sense something that was going wrong, but I didn’t want to put my hand up and ask for help because I was afraid I would get picked on or I would get bullied or I would get targeted. That’s kind of language. So it’s not cool to have a hearing aid in a community when you’re young and you’re 15. So – and disability generally in society is spoken of in a negative sense and disability is a really bad word for that because it starts with a negative. But just in general - - -

COMMISSIONER WHITE: Can I just ask you to stop for a moment. Just – we have really lost all sorts of electronic power at the moment. We have lost the web feed. So I’m just hoping that that’s not going to cause us too much difficulty. There is obviously some kind of electronic stop work meeting going on somewhere because we are too late. We might need to investigate.

MR CALLAGHAN: Some inquiries are being made.

COMMISSIONER WHITE: They are. We will have to stop, then, I think. I think we might need to stop, don’t you? I understand that the internet is frozen. Mr Callaghan, I think that our – we have lost power to some things. It suggests that we really perhaps will have to stop.

MR CALLAGHAN: Yes. It would seem we have no choice. And save for the answer to Commissioner Gooda’s question, I think we had reached a point where we could do that anyway, so - - -

COMMISSIONER WHITE: Yes. And, Mr Avery, it seems that we have to ask to you come back at another date?---Yes. That’s fine.

We will stand you down now, and thank you very much for coming to Darwin, and the Commission staff will be in touch with you to arrange a convenient time for you to come back, because some of the counsel want to explore some of these things with you a bit further?---Thank you very much.

Thank you.



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COMMISSIONER WHITE: Even – are we getting a transcript? Even if we are not getting a feed, are we still able to get a transcript? Yes, yes, we are. Well, then, there are just a couple of little tidying up things we need to do as well.

MR CALLAGHAN: Yes.

COMMISSIONER WHITE: Can I first of all go mea culpa about the exhibit numbering. A person a great deal younger than I was perfectly correct and can count up to 29 when I can’t. So Mr Avery’s statement is exhibit 29. Thank you for that. Do you want to do any housekeeping things before - - -

MR CALLAGHAN: We have a matter that might usefully be resolved tomorrow morning that just involves the Commission and the Solicitor.

COMMISSIONER WHITE: Alright. I just want to make a general announcement, though, for those counsel who are drifting away. Just to remind those who are legally represented of the provisions of the Practice Guideline number 1, particularly in paragraphs 38 – I think paragraph 38 and thereabouts, about cross-examination. We have had this different way of proceeding for those who are available for cross-examination because, of course, you didn’t get the statements until there was no time at all to prepare what lines of questioning. But for the future, we will be adhering to Practice Guideline number 1 so far as it is at all possible. So if you could just keep that in mind if you would. Thank you. The other matter is the listing of the application tomorrow morning, and that only concerns the Northern Territory government.

MR CALLAGHAN: That’s all.

COMMISSIONER WHITE: Ms Brownhill, is quarter to 9 tomorrow satisfactory for you?

MS BROWNHILL: That’s convenient, yes, Commissioner.

COMMISSIONER WHITE: I’m sorry to be so early, but we have got some meetings scheduled for tomorrow.

MS BROWNHILL: That’s no difficulty. We can accommodate that, of course. I did have another matter that I wanted to raise before we rise.


MS BROWNHILL: You will recall yesterday that I referred to the prospect of tendering an indication of the Northern Territory government’s response to the Little Children are Sacred report in the face of Ms Anderson’s which suggested there was no response.



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MS BROWNHILL: If I may hand now – I’m not sure if we have an orderly, but if I could hand up a document which I would seek to tender. It lists the key documents we have identified, which include and refer to the Northern Territory government’s response, and the locations on the website. They are all publicly available documents. So the locations on the internet where you can find those documents, and also a reference or an extract from the Care and Protection of Children Act of 2007, as it was when it first commenced, which provided specifically for one of the functions of the Children’s Commissioner to monitor the responses to that.

COMMISSIONER WHITE: Yes. Thank you. Well, Dr Bath, in fact, did give that evidence.

MS BROWNHILL: Precisely. And at the end of that document, you will see reference to Dr Bath’s evidence about that. The references at item E in our document are Dr Bath’s reports as Children’s Commissioner, which set out his monitoring as required by the statutory provision. Those documents aren’t yet in evidence, but they are in the tender bundle and I understand that those annual reports will be tendered in due course. So if I could – my learned friend - - -

MR CALLAGHAN: The Solicitor has provided me with a copy of the document and I tender it.

COMMISSIONER WHITE: Thank you. That document, then, will be exhibit 30.

EXHIBIT #30 KEY DOCUMENTS IDENTIFIED REGARDING NORTHERN TERRITORY GOVERNMENT’S RESPONSE TO LITTLE CHILDREN ARE SACRED REPORT

MS BROWNHILL: Thank you. And that means that we do not – we, at least, do not require Ms Anderson to return to be cross-examined.


MS BROWNHILL: And while I’m on my feet, can I also indicate that we don’t require Ms Richards to be returned for cross-examination either, not least because of Dr Bath’s evidence yesterday to the effect that the whole of the Central Intake System was radically changed after and in response to the Growing them strong, Together report.

COMMISSIONER WHITE: Thank you, Ms Brownhill. Any other matters to deal with?

MR CALLAGHAN: I don’t think there is anything else this afternoon, Commissioners.


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COMMISSIONER WHITE: Alright, then. Thank you. Then we will adjourn until quarter to 9 tomorrow morning, for those who have got an interest in being here at quarter to 9.

MATTER ADJOURNED at 5.02 pm UNTIL FRIDAY, 14 OCTOBER 2016


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Index of Witness Events

MURIEL BAMBLETT, ON FORMER OATH P-194EXAMINATION-IN-CHIEF BY MR McAVOY P-194CROSS-EXAMINATION BY MS BROWNHILL P-217CROSS-EXAMINATION BY MR BOULTEN P-220CROSS-EXAMINATION BY MS GRAHAM P-226CROSS-EXAMINATION BY MR LAWRENCE P-232RE-EXAMINATION BY MR McAVOY P-234

THE WITNESS WITHDREW P-236

DAMIEN RODERICK HOWARD, SWORN P-237JODI ANNE BARNEY, SWORN P-237ODETTA SHORE , SWORN TO INTERPRET P-237

EXAMINATION-IN-CHIEF BY MR CALLAGHAN P-238CROSS-EXAMINATION BY MS BROWNHILL P-263

THE WITNESSES WITHDREW P-267

JOHN BOULTON, SWORN P-267EXAMINATION-IN-CHIEF BY MR McAVOY P-267


SCOTT CHRISTOPHER AVERY, SWORN P-285EXAMINATION-IN-CHIEF BY MR CALLAGHAN P-285


Index of Exhibits and MFIs

EXHIBIT #22 COMMISSION FOR CHILDREN AND YOUNG PEOPLE LETTER FROM ANDREW JACKOMOS

P-194

EXHIBIT #23 INDEX TO TENDER BUNDLE 1 P-236

EXHIBIT #24 TENDER BUNDLE 1 P-236

EXHIBIT #25 STATEMENT OF DR DAMIEN HOWARD TOGETHER WITH ANNEXURES

P-238

EXHIBIT #26 STATEMENT OF MS BARNEY TOGETHER WITH ANNEXURES

P-239

EXHIBIT #27 STATEMENT OF JOHN BOULTON AND ANNEXURES

P-268

EXHIBIT #28 ABORIGINAL CHILDREN, HISTORY AND HEALTH: BEYOND SOCIAL DETERMINANTS BY JOHN BOULTON

P-268

.ROYAL COMMISSION 20161013 P-294©Commonwealth of Australia

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EXHIBIT #29 STATEMENT OF SCOTT CHRISTOPHER AVERY P-286

EXHIBIT #30 KEY DOCUMENTS IDENTIFIED REGARDING NORTHERN TERRITORY GOVERNMENT’S RESPONSE TO LITTLE CHILDREN ARE SACRED REPORT

P-292

.ROYAL COMMISSION 20161013 P-295©Commonwealth of Australia

transcript 13 october 2016 web viewso their primary role in the first instance was to establish two...

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