transcriptcreator - web viewthat’s why i wasn’t prone to the word...

AUSCRIPT AUSTRALASIA PTY LIMITEDACN 110 028 825

T: 1800 AUSCRIPT (1800 287 274)E: [email protected]: www.auscript.com.au

TRANSCRIPT OF PROCEEDINGS

O/N H-784707

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

9.30 AM, TUESDAY, 27 JUNE 2017

Continued from 26.6.17

DAY 50

MR P.J. CALLAGHAN SC appears with MR P. MORRISSEY SC, MR T. McAVOY SC, MR B. DIGHTON, MS V. BOSNJAK, MR T. GOODWIN, MS S. McGEE, MS R. RODGER and MR I. CHATTERJEE as Counsel AssistingMS S. BROWNHILL appears with MR G. O’MAHONEY for the Northern Territory of Australia

.ROYAL COMMISSION 27.6.17 P-5076©Commonwealth of Australia

5

10

15

20

25

30

35

40

MR CALLAGHAN: If it please the Commission, I was going to invite Mr Vincent Schiraldi to address you in accordance with the précis of evidence that he has prepared for the purposes of the Commission. He appears live, I believe, on the video link.

COMMISSIONER WHITE: We have Mr Schiraldi, Mr Callaghan?

THIS PROCEEDING WAS CONDUCTED BY VIDEO CONFERENCE

<VINCENT SCHIRALDI, CALLED [9.02 am]

<EXAMINATION-IN-CHIEF BY MR CALLAGHAN

MR CALLAGHAN: Yes, we do. Mr Schiraldi, can you hear me?---Yes, I can.

COMMISSIONER WHITE: Mr Schiraldi, I’m Commissioner White and next to me is Commissioner Gooda.

COMMISSIONER GOODA: Good morning.

COMMISSIONER WHITE: Could we thank you very much indeed for accepting the Commission’s invitation to give us the benefit of your expertise in this area. We know that you’ve made visits to Australia before. This one is in spirit rather than in the flesh. We are most grateful to you for giving up your time to do this today. Thank you?---Thank you for inviting me. I’m very interested in the work you’re doing and really applaud the efforts you’re making there.

Thank you. Yes, Mr Callaghan.

MR CALLAGHAN: Your full name is Vincent Schiraldi?---Yes.

You’ve prepared a précis of evidence signed on 6 June 2017 and annexed to that précis are your curriculum vitae, a list of references to a number of articles and reports and so on; is that correct?---Yes, it is.

Yes, I tender that précis and attachments.

COMMISSIONER WHITE: Mr Schiraldi’s précis is exhibit 601.

EXHIBIT #601 PRECIS OF EVIDENCE OF VINCENT SCHIRALDI AND ANNEXURES

.ROYAL COMMISSION 27.6.17 P-5077 V. SCHIRALDI XN©Commonwealth of Australia MR CALLAGHAN

5

10

15

20

25

30

35

40

45

MR CALLAGHAN: Mr Schiraldi, you’re a senior research fellow with the program in criminal justice policy and management at the Harvard Kennedy school of government?---Correct.

And in the 10 years or so preceding your occupation of that position, you’ve been variously the director of the Department of Youth Rehabilitation Service in the District of Columbia?---Yes.

The Commissioner of the Department of Probation in New York City?---Correct.

And a senior adviser in the mayor’s office of criminal justice in New York City?---That’s right.

Can I start with your experience as director of youth rehabilitation services in Washington, DC. Can you – well, it’s the case, wasn’t it, that you were essentially in charge of operating the juvenile justice system in Washington DC?---Yes, I was.

When you commenced as director of Youth Rehabilitation Services in – was it 2005?---Correct.

Can you just give us an overview of the state of juvenile justice in Washington, DC at that time?---Okay. So in 1986 the American Civil Liberties Union and the Public Defender Services filed a lawsuit against a department – they actually settled the lawsuit in 1986; they filed it in 1985. And then – so there had been 19 years. It was a consent decree, they call it, an agreement between the parties about the conditions and laying out what the District of Colombia should do to improve conditions for the young people. And so it was 19 years that that consent decree had been in place. And I was the 20th director of the Department during that 19-year period, largely because the district had not improved conditions and in fact they had deteriorated so badly that in the year before I got there, the plaintiffs made a motion to put the Department into receivership, which would have meant that the court would have actually taken over the Department because it was unable to run itself.

So you say improvements – conditions had not been improved. What are the conditions that we’re talking about?---So that year prior to my arrival, a new law firm was added into the suit, Covington & Burling, which was actually Attorney-General Eric Holder’s law firm. He wasn’t involved in the case, but that was the firm he was in. And they added a bunch of investigative resources to the case, and at the same time, the District of Colombia’s Inspector-General launched an investigation into conditions. And between the two investigations what they discovered was that beatings of the children were very commonplace. Young people were shackled and placed into isolation at very high end unnecessary numbers. The physical plant had badly deteriorated, so that if kids slept close to the boilers, they were in steaming hot rooms, and if they slept far away from the boilers in the winter they were in freezing cold rooms. This was particularly concerning because if kids had asthma or were on psychotropic medication, being in those hot rooms could kill them. The district was not attending to suicide needs in a sufficient manner, mental


5

10

15

20

25

30

35

40

45

health needs, so kids were in danger of killing themselves. Staff – I found out later, when I started that staff were pressuring one another into sexual activities and as well as sexually assaulting the kids. And back to the physical plant: that had deteriorated so badly that rats and cockroaches would not uncommonly crawl up on the kids at night while they slept. So those are an example of some of the conditions. Drugs were also rampant in the facility. Kids were actually testing positive for marijuana more frequently after they had been in the facility for a month than prior to their arrival.

So it seems like there were problems with more or less every facet of the system: the plant and the equipment, the health of those in it, the behaviour of those in it and the regulation of that behaviour. There were problems across the board. Would that be right?---Yes. The morale was also dismal and the culture of the place was very, very correctional. In fact, the district – one of the district’s prisons had closed the year before, and the way the union rules worked was that staff have retreat rights into any other similar position. So about a third of my youth correctional staff had just come from an adult correctional prison. So it was a pretty tough situation.

And you had had 19 predecessors in the previous 19 years, which leads to the question: what did you do?---Right. So we attacked the problem in several different facets. One was we reduced the population substantially through a couple of measures. First, we gathered our key stakeholders – prosecutors, judges, defence attorneys, community people, some of the different agencies that affected the department, like education and child welfare – and created what we called a structured decision-making model, which was sort of a grid that would define kids as needing secure custody, needing community programming, or needing very little, frankly. So the kids that were high-risk and high severity: those were the ones we wanted to reserve our institutions for. Kids that were kind of mid-risk and mid-severity: those were the ones we wanted to put our rigorous community based programs for. And the kids that were low-risk and low severity we wanted to sort of give them a light touch and get them back home with their parents.

COMMISSIONER WHITE: Mr Schiraldi, could I just ask you about that process, because we are quite interested in it. We heard from Mr Balis yesterday from the Casey Foundation?---Great.

And he told us about the development of that tool, and I see from your précis that, in fact, it was that idea of that tool from the Casey Foundation that you picked up. But I’m just a bit interested in how you gathered together your group. The obvious ones, I think, you’ve identified that you would expect to find there: the prosecutors, defence people, probably the judges. What about police and how did you get the community representation along?---So we were fortunate because the department – several years before I got there, there had been a Blue Ribbon Commission, not unlike yourselves, looking into these conditions because it was so bad. And so the former presiding judge of the District of Colombia chaired a Commission, and he had already brought together community people and academics, prosecutors, defence attorneys, police, educators, mental health folks, so I just picked from that crowd and


5

10

15

20

25

30

35

40

45

got the folks in the room. The Casey Foundation helped us staff the process, and we just essentially sort of took people through – the real kind of nub of the question was: who belongs behind bars? And if you had the resources in the community to not put the kids in a locked situation, could some of the kids who are currently being incarcerated not be incarcerated? And the thing about this moment was that it was so key because when you’re thinking of closing a facility and building a new one, that’s when you actually capture the money. So if I had a 208 bed facility with about 250 kids in it, if I took 10 kids out of that, you save virtually nothing. And you don’t really lose any staff. It’s just sort of marginal savings. But if you are actually thinking about going from 250 to 60, which is what we ultimately did, then you really can say, okay, when we have 60 beds, how many staff will we need? And what will we be able to save that we can reallocate to community programs so that the rest of those kids who are now locked up don’t have to be locked up? So that’s kind of what we did. Once we got the risk assessment instrument and the grid together, we said: “Alright. This is how many kids we project need to be incarcerated, and this is how many community programs we have to go buy for the rest of the kids who are medium risk who we used to lock up.”

Thanks.

MR CALLAGHAN: I was going to come back to that, to the grid and to the economic arguments later, because they’re of course relevant to your work in New York as well as to your work in DC. If we could just come back to the DC situation and the reduction of the number of juveniles who were in detention in the detention facility itself, and just focusing on the operation of the detention centre?---Great.

What – well, it’s the case, I think we know from reading your material, that it had a single large youth correctional facility called Oak Hill; is that right?---Correct.

Can you just give us an overview of the physical space at Oak Hill when you commenced as director?---So about 250 beds – I’m sorry. 250 kids in it, about 208 beds, and they were mostly what they called, euphemistically, “cottages”. Not like a cottage you would want to rent for the summer by the sea, let me tell you. They were correctional units that had a day room in the centre and then two tiers or hallways of rooms running to the left and right on which there were about 10 to 12, essentially, locked cells. And, as I said, it was pretty deteriorated and dilapidated environment.

In your article, The Future of Youth Justice, it said that reform efforts are stymied when, quote:

The harmful effects of incarceration are embedded in the physical facilities themselves, creating a toxic environment where staff and kids are inevitably caught in their roles of guard and prisoner.

Was that the sort of impact that the environment at Oak Hill was having on the behaviour of both detainees and staff?---Yes. It was a sort of cyclical process. The


5

10

15

20

25

30

35

40

45

environment was correctional. Staff defined themselves as correctional officers. Young people responded in kind as – sort of took on the role of inmate. And then they just sort of self-fulfilled those prophesies.

So dealing with that was obviously a reason for transforming the physical space that you found when you arrived there. Were there other reasons for changing the physical environment?---It was – well, we changed it in, sort of, two stages. Partly also we felt that just – just the hardness of it made there be a din inside the facility, that – it was semi-maddening, really. It was always loud. You almost always had a headache when you came out of it. Staff were constantly stressed out by that, and as were the kids. So a lot of the softening actually literally made it quieter.

Well, one way of demonstrating, I suppose, the before and after effect might be to look at some photographs that we have been provided with by you. I’m wondering if we could get those on the screen. This is a presentation that you’ve prepared, in effect, with photos of Oak Hill from when you first arrived until after the physical transformation of the institution had been overseen; is that correct?---Correct.

The easiest thing to do, and we will see how we go with the technology, but perhaps if I could just ask the operator to turn the pages and you could talk us through it. I can guide forward or back as required if it gets out of control. But perhaps you could just take us through these?---Sure. I was an advocate before I started and I wrote a lot of op-ed pieces, and “I wouldn’t kennel my dog at Oak Hill” was a line from one of the op-ed pieces I wrote in the Washington Post.

I see?---That’s what darts that way. This is the razor wire that surrounds the facility, a very sort of correctional environment. There were two – this only shows you one round, but there was actually two of these. Two levels of razor wire. Go to the next one. This is just a typical cell. Filtered light. The kids couldn’t really see out that window. So you wouldn’t see a tree. You wouldn’t even know it was a tree out there. Kind of stark bed with that plastic mat on it and a correctional, metal correctional seat and desk against the wall. Some of them are wet cells, some of them were dry cells, so some of them had toilets in them, some of them didn’t. Toilets were in the solitary confinement rooms. Kids often complained that staff wouldn’t get to them in time in the dry rooms without toilets, so they urinated and defecated in their cells, which is pretty humiliating. Next. Another view of the same room. It’s actually – this window, which was – it wasn’t glass; it was like plexi-glass. This was one of the better ones, that’s why the guy took the photograph through it, David Lee. Many of them were scratched so bad you couldn’t see in them, which meant the kids were sort of – kind of going crazy inside the cells. Next. This is just the stark landscape, and that’s a typical living unit. That’s why I wasn’t prone to the word “cottage”. Go to the next one. These are stuff furniture people buy for to run the facilities, the furniture in the day room. And it’s sort of indestructible and also really, really heavy. So the kids can’t pick it up and throw it at staff. So over time what happens is you just kind of – more and more you correctionalise the environment. And so instead of dealing with the kids destroying a couch, for example, or maybe even being violent with the couch, you just buy


5

10

15

20

25

30

35

40

45

indestructible furniture. And then as kids graffiti on it, you just leave it, in a way you would never dream of leaving it in your own living room. Go to the next one. This is an example of the keys. These are keys – they call them Joliet keys in the US because they were designed for Joliet Prison in Illinois. Very correctional: sort of, staff walking around, jingling these keys. Go to the next one. The interesting thing about this obscenity is that it was in one of the rooms right off the day room, that I told staff about four times to clean that off of that wall. And, you know, again, like, one of the things that struck me about my experience in this system was that things that staff would never even for a second have dreamt of permitting in any other environment, they really just stopped seeing it here. I don’t think they were doing it to mess with me. I think they just stopped seeing the obscenity on the wall and were fine putting a new kid in that room with that message blaring out at them. You can go to the next one. So what we did was, and the reason I started with the depopulation, reduction in the population, is that what we did was as we were reducing the population we reached out to the folks from the State of Missouri which had done a really good job of making their facilities more decent, humane, and home-like, and asked for their help. So instead of gradually downsizing each living unit, we completely downsized a living unit at a time, moved the staff out and sent them literally down the road to a hotel where the Missouri folks trained them for a whole month. A month’s straight training, which doesn’t sound like a lot, but for these folks was more than they had ever – they had never gotten anything like this. So they were in there learning how to become more like counsellors than like correctional officers. And at the same time, I went and got – I had organised the maintenance staff and community members to come up and help rehabilitate the living units and make them look a little more soft, even within the current framework. We were building a new facility, but we were softening this facility. So you can see, for example, we took those correctional beds out and replaced them with wooden beds. We put in – instead of those army blankets that kids had, we put kind of nice, pretty blankets that went over the kids’ beds. It’s a wooden desk with a regular chair that you would – you could conceivably see in a dorm room. We painted the walls instead of having that ugly cinder block, and we carpeted the floor, and that quietened everything down a bit. And then we allowed kids to put stuff up on the wall, you know, within reason. Go to the next one. These were some of the game tables that we put in the day room instead of that nasty uncomfortable furniture. There were couches ..... where the TV was. We also started having work product. Like, the kids started doing things that were therapeutic and also we started positively reinforcing good behaviour. So when kids behaved well, they got a certificate. It got stuck up on a wall. If the kid was the best math student for the week, they got that stuck up on a wall. And we started – over time – this was pretty early on after we just refurbished. But over time those walls got full. These were sort of genograms, when the kids would go to therapy with the same staff that used to just be correctional officers, and bit by bit talk about their lives, write about their lives. A lot of times, particularly males, boys, aren’t very verbal, but if you get them drawing, you might get them talking more. So this was part of the Missouri approach. Go to the next one. We invited dignitaries up and we refurbished the living units. The mayor came and painted, many of the judges, many of the City Council members planted flowers. Maya Angelou came up and the kids ..... did a


5

10

15

20

25

30

35

40

45

Maya Angelou carving. Another young man did a phenomenal man, retake on her Phenomenal Woman poem. It was beautiful. But look at Maya Angelou in front of that razor wire. That’s what I’m saying. It was many reams of razor wire. It’s a pretty incredible picture, really. And that was quite a day. It was just an effort to re-humanise the kids in the eyes of both the community and the staff. Once that kid did that sculpting – not sculpting, but woodworking, and the other kid did the poem, staff start to look at them differently. Like, “Oh, you’re the kid that did the poem. You’re the kid that met Maya Angelou.” Like, you’re a person now; you’re not just some little criminal. Go to the next one. When President Obama was elected, a Harvard law professor, Charles Ogletree, orchestrated a forum on youth corrections for experts from around the country to talk about they thought should happen in terms of juvenile justice reform and he invited me to speak at it, but I asked instead if the kids could speak at it. And so this was a remote – where the young people actually led off the conference. And it was absolutely fantastic. Every single other speaker after that referred back to the kids. Go to the next one. We – I had a really terrific recreation director, and he worked with the young people and there was a college for deaf students in Washington DC, Gallaudet University, and got the Gallaudet students together with our young people and they created a ropes course for, you know, like, challenge stuff, people do retreats on them. It’s not really my thing, but the kids learned how to do it. It was really cool. Go to the next one. And then what started happening, which was really super cool, was that the kids became experts in the rope course and that many of the departments in Washington DC, like the Department of Health and the Department of the Environment, when they would do their staff retreats, they actually came up to our correctional facilities and the kids led them through the ropes challenge course and did all these sort of trust activities with them. So now all of a sudden the young people – they’re not just being the recipients of – let’s call it therapy – they’re actually helping other people, and that really helped to redefine them as well. Go to the next one. So I had a lot of football players that worked on my staff and every year we would do pretty well, even before I got there. But they always, if they ever got to the playoffs they would forfeit, because the administrator wouldn’t let them out. The playoffs had to be out in the community. The public school system wasn’t going to come to a correctional facility to have their high school playoffs. So the year I was there, we said, “No. We’re – if we make it to the play-offs, we are playing in the playoffs.” And we did, and we were city champs the first year I was there. That’s the Oak Hill Tigers. We’re the ones in yellow. Go to the next slide. And then we got – there’s a really terrific Shakespeare library and theatre in Washington DC, Folger Shakespeare Library and Theatre, and they work with the young people along with another theatrical group to perform Macbeth. There was a sort of city – area wide, not just city wide competition, and the young people won best ensemble and our Lady Macbeth won the best actor. And that’s the mayor in the middle, posing with the kids. Go to the next one. So, you know, this was a lot of bringing the Missouri model there, humanising the kids, building on their strengths, not just extinguishing their deficits, but still, in all – it still is the proud day of my career when I closed that place. It was a horrible place. You can go to the next one. So then we – while we were doing this, we were designing and building a new facility, a much smaller new facility – you can go to the next one – called New Beginnings. Actually it was named by a contest.


5

10

15

20

25

30

35

40

45

Actually, one of our maintenance guys, he came up with that name. But the selection committee involved staff and kids. So you can see how different the layout is. It’s a winter shot, so it looks a little stark, but in summer that tree would be full of leaves and that grass would be green rather than brown. And so it looks a lot more like a college campus than a correctional facility. Go to the next one. This is what the living units look like. Nice comfortable furniture. You can see all the doors are wooden; they’re not metal. Lots of glass. Outside area there for the kids to be on nice days, comfortable furniture. Go to the next one. This is a typical room. You can see one of the walls we painted with black board paint so kids could draw on it and then we just gave kids the chalk. You can see Maya Angelou down in the right-hand corner. Go back a second. You see Maya Angelou down in the right-hand corner there; a kid drew her. Back behind those two women, and that window, with a star – that’s a real window, first of all. You can’t see it in this picture, but you can actually see out the window. And there is a little knob by that woman’s elbow, and the kids could open and close their own windows, which gives them a little control. You kind of lose all control in these places. You can go to the next one. We have got a welding program there – go to the next one – where the police had given us a bunch of guns from where they would seize them and, you know, in crimes, or sometimes they did gun buy-back programs. And the young people – we got the blacksmith’s association of the middle Atlantic US to work with the kids, and they made different artwork with the guns. We called it the Guns to Roses program. Go to the next one. Fantastic gymnasium. The kids had a whole series of basketball games against the city council. Super – the stands were packed. Go to the next one. 125 seat auditorium. So they would have not only plays they would put on, but musical shows, and – you know, like, concerts. And then every semester we would have awards for different kids who did well in school and ..... 125 seats so we always tried to get elected officials to come up. We had rented free buses so we could drive parents up. We really wanted to have as many community people inside the facility as we could, because we think that makes for a healthier environment than if you just have the kids and the guards. Next slide. So this is the back of that theatre on the outside. We had a competition for a mural. The kids and the art counsel selected the winning muralist, and then the kids worked with him to install this mural, and they designed and installed it together. Go to the next one. So flanking that wall was a floor-to-ceiling glass block wall, and the Arts Commission were so into this that they commissioned another artist to work with the young people to create those little, sort of, I guess you could call them glass block things. And I think that whole thing is almost full by now. This was from 2009. Go to the next one. And that’s just take a bow. That’s looking out from the back of the theatre.

Thank you. That presentation does convey the before-and-after effect very well. But, of course, it was a staged process and at a point just before you started speaking to those photographs – which we can lose from the screen now, thanks – you mentioned that you achieved this one unit at a time and that you closed a unit down and sent staff for training for a month. Is that right?---Correct.

How critical was that sort of approach and how important was that sort of level of training as you were unfolding this reform?---That was huge. And then the people


5

10

15

20

25

30

35

40

45

from Missouri, also – we were establishing – we did a lot of things simultaneously. So we were establishing a training unit at the time. There was a training unit, but they were terrible and most of what they trained on was just, you know, kind of garbage correctional stuff. So this was truly trying to train people how to be youth counsellors, not just correctional officers, not just guards. So Missouri folks were training them, and then also we got enough money from foundations so I could have the Missouri services institute, which was the non-profit organisation that they established, on site initially 35 days a month. So some days more than one of their staff were there, as coaches. So now you imagine, you know, you’re on a living unit and the kid goes off. He doesn’t want to do whatever you’re telling him to do, and so he cusses at you and spits at you. And the old days, what you would do is you would hit a little button on your chest and four big football players would come and rough that kid up and stick him in an isolation cell. And, you know, that didn’t feel so bad, right. You felt like your company, your department, had your back. They weren’t going to let some kid just spit in your face and disrespect you. Now, the new way is your partner is going to deal with this kid. You’re going to go to the bathroom, wipe your face off, regain your composure, and you and your partner, along with the kids, are going to have a conversation in a group-therapy type setting about dignity and respect and what it means to spit in somebody’s face. And a lot of that, as time goes on, the kids themselves are going to lead. They’re going to challenge their partner, their other young man and say, “Look, I know you didn’t like the way that decision went down. I know that maybe wasn’t even a great decision. Maybe the staff member was wrong. But you can’t spit in a guy’s face, and started cussing them out. If you do that in the real world, you’re going to go to jail,” and that kind of thing. And frankly, let’s just be honest, for any of us, that’s hard. But especially if for 20 years you have been hitting a button on your chest and four football players rough that kid up. And so we felt like training wasn’t going to do it all by itself. You needed some coaching along the way with that. And even with that some staff were frustrated and didn’t want to do it this way, and they wanted to slug that kid. And you can understand it, but you can’t accept it.

Well, it wasn’t just the kid they wanted to have a go at, wasn’t it, because didn’t you have to survive a couple of votes of no-confidence yourself?---Yes. Staff was not – yeah. They were not believers in this. You know, and you have to look at it from their perspective. I was the 20th director in 19 years. We were like buses. There was going to be another one along in five minutes. It was really hard for them to buy into it. And I bet along the way every one of them bought into the approach of one of those other 19 administrators and then they were gone, and they felt like chumps. So we had a hill to climb over. The trainer from Missouri said it. The way she told to me, which I thought was terrific, was she said, “Imagine this is a trapeze, and you’re on one side. You are the guy that catches the people twirling, and you’re saying to staff on the other side ‘Jump. I got you,’ and they’re a little reluctant to jump.” So, yeah, we had to overcome that. We did a lot of training. We did a lot of coaching. We brought in additional resources, and we fired a bunch of people that weren’t with the program, and some people left on their own.


5

10

15

20

25

30

35

40

45

Was that the suite of tricks, if you like, to get them jump: training, coaching, resources and ultimately having them move on if they weren’t willing to embrace these reforms?---Yes. Yes. That was it, and also I think the community programs helped because, you know, there was definitely a moral code, even though, like, people were beating people up and they were turning the other eye when – you know, turning a blind eye when staff were doing bad stuff to kids. You know, everybody wasn’t having sex with them and dealing them drugs, but everybody knew. It was a 200 bed facility; how can you not know? So everybody knew. And – but even despite, that there was still a moral code. These people still thought of themselves as the good guys. And when we were able to establish rigorous programs in the community for the kids, staff also, that helped – staff, even though they weren’t in those programs, the staff themselves, they weren’t running them, they became believers. Every win we got, they became more and more believers. And that ranged from Shakespeare to football. We started doing things out in the community. The guy whose hands you saw locking that fence, he was the maintenance guy, and he came up with an idea on his own that in his part of Washington DC, there are a lot of senior citizens who were old and their kids had moved away and their lawns were just, you know, grown up and they couldn’t deal with them. It was too much work for them. And this guy was a groundskeeper. And so he – and over the summers we got summer youth employment money and he took a group of kids out and cut the lawns of all these senior citizens in this neighbourhood. And we got fantastic publicity about that. One of the women was the oldest woman in Washington DC, she was 103 years old. So every little bit of good publicity we got like that, you could feel some of those people in the middle moving to the right side of this. Some people jumped right on board. Some people never came on board. But there was a big group of people in the middle, and bit by bit by bit we started bringing them on board. When they came back into the living units and it was redone and the mayor had done that, and City Council, that brought us some people. You know, when they got trained and they could understand a different way of doing it, that brought us some people. When we actually closed Oak Hill, more people. I just went back and visited with a whole group from Los Angeles County, which is a 10 million person county, because they wanted to see the facility. And so it was the first time I was back since I left. So – I left in 2010, so it was like seven years. And some people were coming up and hugging me. I was like, “You are hugging me? You are hugging me?” Like, some of these people, they were – they couldn’t wait to see the back of me leaving, and they laughed. They said “Yeah, you were right,” you know? .....

Do we infer from that, from your recent visit, that the reforms have subsisted, that they continue to this day?---Yeah. It has been run – the system has been run by a series of my deputies. So they – including the current guy. So they – you know, they put their own twist on it, but it’s basically heading down the same path.

It’s difficult for you to be objective, I understand, but you would take that, I would assume, as a measure of success, the fact that it continues to operate in the way that you envisaged, but are there other measures of success to which you would point, and we will - - -?---Yes. Sure.


5

10

15

20

25

30

35

40

45

And we will filter your answer for self-serving remarks, but if you can tell us why you think it was all good?---Sure. I can send you some data. So basically for the first two years recidivism increased and it has been on a downward slide since 2007. So for the last decade every single year recidivism of the kids being released has decreased. The number of kids on abscondance – so kids towards the end of their time, we let them go home on home visits. Initially they go home with one of their after-care workers for just a day visit, but eventually they’re just going home. And, you know, so they go home Friday and come back Sunday or Monday. And when I started, 26 per cent of the kids had absconded. So one out of four kids in our case load were not where they were supposed to be. And by the time I left it was down to like five, six per cent and that was because the place wasn’t so horrible to come back to, in part. In part because we established better relations with their parents who used to call us and tell us, “He is here, hiding in the basement.” And then incidents of – uses of force went down, as did injuries of kids. And I think those are probably the best sets of data that – oh, I know. The other really, really good set is that when I was – you know, before we brought the new school in – we brought a new school in about 18 months into the process. Kids were gaining 24 per cent of the credits that were allowable. So there’s a certain number of credits you can get per semester. They were achieving 24 per cent of them. By the time I left, they were achieving 84 per cent of the credits. Far and away the best thing we did was that school. And we extended school from 8 am to 5 pm and half-day Saturdays. And it was really interesting because the kids who had had disastrous experiences with school in the community, some of them graduated while they were with us, and they weren’t with us that long, they were with us six, seven months. And others, we – that same – we had a non-profit organisation run the school. And we had them run a 90 day post-release school so that they didn’t have to go right back out to the same neighbourhood school where often they had problems. So between those two they got about 84 per cent of their credits, and many of them actually could graduate from school during the time they were with us.

And the success of the education program was obviously instrumental in reducing the recidivism rate and the reduction of the recidivism rate leads us to this issue of reducing the aperture of the pipeline of kids into detention, and that, in turn, leads us to your experience in New York, which covered both juvenile and adult probation; that’s correct?---Correct.

But we are, of course, principally interested in the situation of juveniles. And equally, obviously, there’s going to be some cross-over. There are many obvious reasons why diverting children from the criminal justice system is important, but can I ask you to elaborate on what you’ve identified as the self-actualisation of criminal behaviour amongst young people as a reason for diverting them?---I’m sorry, can you ask that question a different way?

Well, it’s – I can, and. well, I probably don’t even need to because I think it’s in the materials and we are looking at the clock. Can I come back to the questions that Commissioner White directed to you about the structured decision-making grid. And is there anything – I mean, you told Commissioner White a moment ago about the


5

10

15

20

25

30

35

40

45

involvement and the – the involvement of others in the development of that grid and the assistance that you had in it. Is there anything else that you can tell us about the way in which that grid was developed and, indeed, about its importance?---Sure. So New York – this one here is from New York City and New York City is five boroughs or counties and each one of them has its own culture, court culture, and different players. So there’s a presiding judge in every borough, a top prosecutor, a top defence attorney, and then various programs. So we did this as a city and so there were representatives of all those people that did this. And that most serious current arrest charge, the lawyers went into a room and argued over that for months. Thank God that wasn’t my committee. I delegated that to my deputy and she just wrangled them until they finally came to agreement. But once we came to agreement on this, then we created a bench book and trained the bench and the prosecutors and the defence attorneys in every borough on it and the bench book contained a structured decision grid, research on structured decision making, research on the risk assessment instrument that we were using to assess likelihood of arrest and then all those alternative to placement – there were a bunch of different models that we established. Do you have the continuum of care slide?

Page 4 – for the record, we were looking at page 6 of the New York City report; now we have page 4 on the screen?---Right. So my department, probation, paid for all of those blue programs. And before we established them, we went over them with the court, with the prosecutors, with the defence attorneys. So everybody had buy-in to them. So by the time they got implemented, folks felt good about them, and that’s where all those – in the previous slide, all those alternative detention slots went. That’s what this meant. There was a different vendor in every borough, of course, and there was research on these programs. Some of them were really gold-standard researched. Some of them weren’t; they just had less good research, but folks were interested, so this is what we did. And so all of that research went into the bench book. And as well as contact information. So if you were a judge in Staten island, you knew who was providing echoes, you knew what the research said about echoes, and you had their phone. So if you wanted to call them up and yell at them because you didn’t think they were providing good services, you could do that. We discouraged judges from doing that, but they are judges, so they do what they do.

Yes. They do?---Then go back – if you could go back to the previous slide.

Page 6?---No. The grid. Yes, yes. So the good thing about this was we collected a tonne of data on all of this. So six months into it, we started to ask what’s the data showing? Are kids getting actually adjudicated, because this is just telling probation here’s how – what we’ll recommend to the judges, and then the judges do what they want, right? So are kids really getting sentenced according to these boxes, and if – particularly what we wanted to know is who was being bumped up into incarceration, which is placement, out of home placement, right? Who is getting locked up that ought to be in the alternative boxes, and why? And so we – because we had a grid like this, if you’re bumped up and you’re moderate risk and moderate severity, we want to know why that’s happened. And so when we looked at it six months later, we found four categories of kids that were routinely being bumped up.


5

10

15

20

25

30

35

40

45

By the way, most of them weren’t being bumped up. And most of the times that the courts departed from the boxes it was downward. So that was great. But the ones that went up, we were concerned because we wanted to reserve incarceration for only those who needed it. So we found that girls who were involved in the sex trade were being bumped up. Very developmentally disabled kids, very mentally ill kids, and kids without tenable homes, so child welfare kids. So kids weren’t being locked up for their offence severity or their risk; they were being locked up for their problems. And we said, “No. You don’t lock kids up because they have problems. You come up with other resources to meet those problems.” So then collectively we all got together and said it’s unacceptable for girls who are being exploited sexually to be incarcerated because of their exploitation. So we need to come up with programs and as a group we found programs for those kids, and, you know, we curved that, and it was a constant quality assurance. We would always loop back and see – and with a grid like this, you can see are there racial disparities, are black kids getting bumped up, are Latino kids getting bumped up more than white kids are? You could look at is there a particular judge that’s bumping kids up more, are there particular probation officers who are making override recommendations more frequently, so it was a really fantastic management tool.

There are a couple of other aspects of the New York experience that I would have liked to have touched on but there are a couple of topics I really don’t want to lose time for. And so I want to ask you some broad questions now about the concept of reform. You spoke earlier, when speaking about DC, I think you used the phrase – or spoke about capturing the money?---Yes.

And it’s the case, isn’t it, that the sorts of reforms that you would appear to have achieved can only happen at what might be called water shed moments?---I would agree. I think that it’s a lot harder to capture the money when you’re making incremental changes because of that marginal cost issue I talked about earlier.

Yeah. And just to elaborate on that a little, we often hear the costs of youth detention or any detention expressed in cost per detainee per day?---Correct.

It is common enough. By the same token, if one detainee was to leave detention today, we wouldn’t be saving that amount of money, whatever it is, would we?---That’s right.

And for that reason, it’s so important that the reform be done in a planned and, as you’ve said, staged way, but also a complete way and at the one time. Is that correct?---That’s correct, although I will say that in New York what happened – so the way it works in the States is local jurisdictions sentence kids to the state system most often. And what happened in New York on the close to home initiative was New York City asked for all of its kids back from the State of New York. So we had about 5000 kids in state custody and there were abuses and a couple of kids had died, and, you know, it was bad stuff. And when we negotiated that, we negotiated all the money or almost all the money to come back to the city from the state. And so when we did that, we did the structured decision-making grid, substantially reduced the


5

10

15

20

25

30

35

40

45

number of kids in custody, and put them in small home-like facilities. So most of them were six, eight, 10 beds, and they were contracted out to private non-profit organisations. So the good thing about that was if the kids were in a 250 bed facility and you took six kids out of it, you didn’t save much, but if they’re in a six bed facility and you take six kids out of it, you close the whole facility. You just terminate the contract. And so every time we could reduce the population by just even now a handful in New York City, we would – generally what we would do is close the worst functioning of the contracts we had – we had 37 different contracts for different facilities, giving you an idea how small they were. And so every time we did that, we could always first of all, pick the worst one, which – when is the last time you heard a really bad state run facility close because it’s not working well, right? So we could do that, and save – capture the money and pour it back into the community based program.

But that only works if you’re working on that model, doesn’t it? As we said a moment ago - - -?---Yes.

- - - if you were to release six prisoners from a 100 bed prison, you don’t get the same sorts of economies?---That’s right. You’ve got to do it at scale. And, you know, we’ve talked about New York, DC, but, you know, Texas reduced its juvenile population, incarcerated population by 38 per cent. They closed six facilities and put $50 million out to communities for programs and juvenile crime dropped by 49 per cent. Ohio reduced its incarceration by 47 per cent and its juvenile arrest rate went down by 65 per cent. They also put the money out to the county. So this is an actual US-wide phenomenon that’s going on. There has been a 53 per cent decline in kids locked up between 2001 and 2013, and two-thirds of the facilities over 200 beds in the whole country have closed during that time. So it’s not ..... reducing, but it’s reducing disproportionately in the large facilities.

You led off that part of your answer with a reference to Texas, and that leads me to a particular topic that I do want to hear your views on, because it’s essential that any reform like this be able to survive the electoral cycle, that it – but inevitably issues of politics can intrude upon this sorts of process. But there have been some interesting developments, as I understand it, in the United States with views being expressed from a side of politics that might not necessarily be associated with these sorts of reforms but in fact are endorsing them wholeheartedly; is that right?---Yes. It’s really fascinating. I have been in this 37 years. For the last 10 or 15 there has been this gradual change in the conversation so that now the left and the right are sort of pitching the same thing. I mean, people from Grover Norquist to Newt Gingrich or Jeb Bush are advocating less incarceration. There is a group called Right on Crime, which is a double entendre, but it’s a bunch of conservatives – conservatives in the way Americans call them; I guess you call them the Liberal Party here – that have convened. They have a statement of purpose that is to reduce mass incarceration. And when I was in Melbourne, I met with several members of Parliament and several Liberal members of Parliament, and they said they had been in conversation with Right on Crime and that several of the sort of conservatives from the US and Australia were actually starting to have these conversations.


5

10

15

20

25

30

35

40

45

And, I mean, people will take their positions on these things for their own reasons, but is the economic benefit of this sort of reform informing those discussions?---I think it was several factors. One was the economics. $250,000 is an awful lot of money to spend on a really horrible environment like Oak Hill. The other is a lot of the folks on the right are evangelical Christians, and there was really, I think, a truly moral component to this, where folks were saying this is just basically – this is not right. It’s not just bad policy, it’s immoral. And then lastly, as crime declined, and it has been declining sharply in the US since about the mid-90s, this issue began to lose its salience as a political wedge issue. When it was at its peak, people were so afraid that if one party said 10 years, the next party said, “20 years. You’re soft on crime,” and we went through that. I mean, we had a massive increase in incarceration. Our rates were six, seven times the rest of the country. Incarceration rates for African Americans are six, seven times what they are for whites. We went hard on this one. The number of kids locked up in the US topped the 100,000 in the mid-90s. Now it’s down to around 50,000, and that’s in the – in 2013. I bet when those newer data come out, that will be much, much lower. So and that includes detention and kids placed in correctional facilities. So we’re on the right path. We still have too many people locked up. But the conversation is happening in a way it never did before.

Well, one side of that conversation might be, mightn’t it, a politician who’s being dismissed as someone who is trying to drive a wedge or be tough on crime might well say, “Well, no, my principle concern is the safety of the community.” But there would be a response to that arising from the sorts of reforms that we’re talking, would there not?---Yes. I mean, the prisons didn’t deliver on safety. So lots of places that had high incarceration rates did no better than places with low incarceration rates. Crime went down but crime went down – was dropping before, you know, when we had declining incarceration rates, just like it did when we had increasing incarceration rates. So there’s no evidence to say that this has worked. I mean, it’s – it would be foolish to imagine it had no impact, and I don’t think anybody claims that. But the National Academy of Sciences did an excellent treatise on the causes and consequences of America’s increasing incarceration rates and they said it had very disappointing rates – disappointing impact on crime rates.

And it’s a truism too, is it not, that one of the best ways to guarantee community safety is through effective rehabilitation?---Yes. The National Academy of Sciences did another piece of juvenile reform and their conclusion was that there’s no program that works better in institutions than it does in the communities. So you can and should do programs in institutions or in locked custody. But they inevitably work better when you do those same programs in the community.

The other big topic that I wanted you to address, a big topic for us, is the question of race. At page 16 of your article, The Future of Youth Justice, you refer to the profound disparities in the racial background of youth who are incarcerated. Were racial inequities addressed as part of the reforms that you’ve been involved in, and, if so, what strategies met with the most success?---In Washington DC, every single kid who was committed to my custody was either black or Latino during the whole five years I was running that Department. There wasn’t one white kid committed to my


5

10

15

20

25

30

35

40

45

care. So anything I did to reduce incarceration there reduced it for kids of colour. In New York, there were – and I call it a handful of white kids that were in the system. What we did there, which I thought was a really neat experience, was the Vera Institute of Justice and the Haywood Burns Institute: they did an analysis for us. And what they did was they looked at the kids at every stage of the process. So starting with arrest and going all the way through to after-care, you know, after they were released from the facility, if they did get locked up. And compared the kids by race, offence severity and risk level to see if there were what they called unwarranted disparities at any different stages. So some disparities are warranted. Right? If a kid commits a more serious crime and they’re a greater risk, well, then that’s a kid that’s going to get more time. If he happens to be black, that’s what it’s going to be. So it’s not all disparities are entirely unwarranted. So they did, I thought, a very sophisticated analysis, and they did find at some stages, but not all stages, there were unwarranted disparities. So for me, for example, one of the powers I had as Probation Commissioner, because a juvenile justice system is, you know, historically a system that was designed, at least in part, to help rehabilitate kids. So in many US states, if an evaluation shows that the kid is more likely to be damaged by the system than helped, you can divert them from the system. So we were in charge as Probation of assessing every kid that came into the system. So it was over 10,000 kids. We assessed every single one of them when they got arrested. And if we thought that it was in the interests of justice not to go forward with the case, we could divert them, and did, almost half of the time. And so we were – when they looked at that stage, they found unwarranted disparities. We were diverting the white kids more frequently than we were diverting the kids of colour. So then, you know, you go back to the drawing board and you do things to fix that problem and we substantially increased the number of kids we diverted and disproportionately substantially increased them for kids of colour so that we evened things out.

Okay. Mr Schiraldi, as I understand it, you are not asserting any particular expertise in the Australian/Northern Territory situation. You’re not insisting that we should go about things the way that you say that you’ve gone about them, but nonetheless would suggest that there are some principles, perhaps, that might be universally applicable. Would that be a fair summary?---Yeah. And I guess I would add that, in the US, the interesting thing about the US is it has got 51 systems. So you can look at a lot of different possibilities. What we did in New York was different than what we did in DC than what they did in Texas and Missouri and Ohio.

Yes.

COMMISSIONER WHITE: Mr Schiraldi, you don’t mention anywhere in your writings that I have looked at about the role of media in its many forms in forming public opinion, which is obviously something that has to be positive to bring the community along with you in this particular experiment. Did you have any particular way in which you managed that? Did you take them into your confidence? Did you feed them good stories? How did you manage the media profile for your improvements that you were making?---One of the things about the way the juvenile justice system works in the US, and I don’t know if this is also true for you in


5

10

15

20

25

30

35

40

45

Australia, is that the kids have confidentiality rights. And very many correctional administrators view that as meaning that a kid can never speak. And I didn’t view it that way. I viewed it as if a kid is well-informed by their parents and their lawyers and they want to say something, then we should put them in front of the camera, or we should give them an opportunity to do that. And so whenever the media – I welcomed the media and I gave them pretty broad access to the facility, and if they wanted to talk to kids, I hooked up with a Professor from Georgetown University who was a really tough advocate on behalf of the kids, so I knew if she said it was okay, it was okay. And she helped co-ordinate with their lawyers and their parents because I didn’t want the department to be the one coordinating that, because I thought that the potential for manipulation was too great. So basically she was willing to do it, and I said, “Alright. If the media wants to talk to a kid, I want it to be this kid,” the quarterback of the football team and they want to interview somebody about a football, or she’s Lady Macbeth, I want them to interview Lady Macbeth. And I would call Kris Henning at Georgetown University. She would call a lawyer. She would call the kid’s mother. They all collectively talk to the kid. You know, we would set up a conference call. And so the kids had a lot of voice. We would bring them to – we had oversight hearings every year in front of City Council. I would bring kids to testify at the oversight hearings. Again, we tried not to manipulate that. We had the advocates, you know, talk to the kids so that the kids could say what they wanted to. There is always a danger, but I thought that young people’s voices needed to be part of this conversation, and media responded incredibly well to that because they never get to hear from the kids.

Thanks?---I know you guys have done a lot of that yourselves and I’ve been very impressed by what I’ve seen about that.

MR CALLAGHAN: Just on that point raised by Commissioner White, it’s also generally true, isn’t it, that the media tends to operate on a fairly binary format, what’s said to pass for balance in just getting opposing points of view, whereas the sorts of things we have been talking about really involve an alignment of interests. That’s a phrase you’ve used in your writings and another phrase that has been used is win-win. That’s really what we’re talking about in the – as the end game for your sorts of reforms, is it not?---Yeah. Those are much duller stories, though.

That’s true. Commissioners, I’m slightly over time, but I think we had a bit of a technical difficulty which has now been resolved. I have no further questions for Mr Schiraldi but if there was anything that you wished to explore, then now is the time.

COMMISSIONER WHITE: Thanks, Mr Callaghan. Thank you very much indeed, Mr Schiraldi. Commissioner Gooda and I have been absolutely gripped by your tale of success. We know it came over a long period of time. It wasn’t something that happened quickly, and it required an enormous amount of dedication. And thank you so much for sharing that with us, and, of course, there are lots of things that we have been able to take from your presentation today and from your writings that will help us in the recommendations that we make to the government that has charged us with


5

10

15

20

25

30

35

40

45

this Commission of Inquiry?---Well, thank you very much for inviting me, and if there’s anything else you ever need, I’m happy to help.

COMMISSIONER WHITE: Thank you.

COMMISSIONER GOODA: Thank you.

MR CALLAGHAN: Thank you. We can lose the link, I think.

COMMISSIONER WHITE: Terminate the connection? Yes.

<THE WITNESS WITHDREW [10.11 am]

MR CALLAGHAN: It remains for me to tender the photographic sequence to which Mr Schiraldi spoke.

COMMISSIONER WHITE: Yes. Thank you. That’s exhibit 602.

EXHIBIT #602 PHOTOGRAPHIC SEQUENCE PRESENTED BY VINCENT SCHIRALDI DURING EVIDENCE

COMMISSIONER WHITE: And what about the other material, the report on the assessment and so on. Is that actually - - -

MR CALLAGHAN: That is part of - - -

COMMISSIONER WHITE: That’s part of it, is it?

MR CALLAGHAN: - - - the material which was tendered.

COMMISSIONER WHITE: Alright. Thank you.

MR CALLAGHAN: I believe we’re ready to proceed with the personal story, which will be introduced by Mr Goodwin.

COMMISSIONER WHITE: Thank you. Thanks, Mr Goodwin.

MR GOODWIN: Thank you, Commissioners. Today’s personal story is of a grandfather and his daughter, the mother of a child in care, who are known as EA and EB respectively. EA talks about his daughter and how her child and his grandchild were taken into care. He recounts the circumstances surrounding his granddaughter’s removal and the manner in which she was taken from her mother. He also details their experience in the legal system, trying to secure the return of the

.ROYAL COMMISSION 27.6.17 P-5094 ©Commonwealth of Australia

5

10

15

20

25

30

35

40

45

child. His daughter and the child’s mother, EB, tells us about her struggles to overcome personal challenges in order to regain custody of her child. She talks about her rehabilitation, securing employment, and setting up a home in order to get her daughter back. If we could now hear EA and EB’s story.

RECORDING PLAYED

MR GOODWIN: Thank you, Commissioners. The next session is in closed court and my understanding is that that will be ready to proceed at 10.40. So if we could adjourn in the usual manner.

COMMISSIONER WHITE: Thank you. We will adjourn, if you will, until 10.40, please.

ADJOURNED [10.40 am]

CLOSED SESSION ENSUED

[REDACTED INFORMATION]

PUBLIC SESSION RESUMED

RESUMED [11.37 am]

MR McAVOY: Good morning, Commissioners. The next witness proposed to be called is Mr Mike MacFarlane, and Mr MacFarlane is in the witness box now.

COMMISSIONER WHITE: Thank you. Mr MacFarlane, would you kindly stand while I administer the application to you. Thank you.

<MIKE MacFARLANE, AFFIRMED [11.37 am]

<EXAMINATION-IN-CHIEF BY MR McAVOY

COMMISSIONER WHITE: Thank you, would you kindly be seated?---Thank you.

.ROYAL COMMISSION 27.6.17 P-5095 M. MacFARLANE XN©Commonwealth of Australia MR McAVOY

5

10

15

20

25

30

35

40

45

MR McAVOY: Mr MacFarlane, could you please tell the Commissioners your full name?---Michael Wayne MacFarlane.

And your current occupation?---Is General Manager of Lotus Glen Correctional Centre in Queensland.

And you’re aware a précis of your evidence has been prepared for the Royal Commission?---That’s correct.

And you can see a document on your scene to your left. Do you recognise that document?---I do.

And you’ve signed on the fifth page of that document; that’s your signature?---That’s correct.

Commissioners, I tender the précis of evidence from Mr MacFarlane together with the two annexures.

COMMISSIONER WHITE: Exhibit 606.

EXHIBIT #606 PRECIS OF EVIDENCE OF MIKE MACFARLANE WITH TWO ANNEXURES

MR McAVOY: Thank you. Mr MacFarlane, you are currently the superintendent or general manager of Lotus Glen, a correctional centre in Queensland?---Yeah, general manager. Yep.

General manager. Sorry. And that facility is an adult facility?---That’s correct.

And prior to that, you were at the West Kimberley Regional Prison in Western Australia?---That’s correct. Superintendent of the West Kimberley prison.

And the case is, from looking at your CV and the précis, that you’ve had a long history in working in the correctional services space?---Correct, yes.

And you’ve worked in the Northern Territory before?---Northern Territory as well, yeah.

And what facility did you work in, in the Northern Territory?---Alice Springs Correctional Centre.

Your role with respect to the West Kimberley Regional Prison is of particular interest. I wanted to ask you some questions now about that facility. You were involved in that facility from its early stages?---2010 till 2016.


5

10

15

20

25

30

35

40

45

If I can just show you a picture. It’s picture one in a bundle, which I will tender, Commissioner - - -


MR McAVOY: - - - in a moment.

You recognise that picture, Mr MacFarlane?---I recognise that site, yep.

And can you just describe for the Commissioners that site?---That’s an aerial shot of West Kimberley Regional Prison. It’s approximately 6 kilometres from the main part of Derby town. If you’re looking to the left of the screen, it’s heading west out across the mud flats, and the community back to the right there is Mowanjum Aboriginal community. They were our neighbours. The site itself: you see the little white road as it leads in, that’s the external stores, and also the section 95 area, which is trusty prisoners work out there during the day. As you come up to the main fence line, you come through the main access gate and in through the main access gate – you can’t actually see me pointing – but just inside the gate there you see a cluster of buildings, about five right by the fence line: that’s the administration areas and a kitchen area. We had – you want me to describe the site or - - -

Yes, please?---Yep. I will go clock-wise, is probably the easiest way to do it. So on the left of that area is then the workshops area. There’s a metal-mechanical maintenance construction area and also a gardens grounds section. You move around to a gymnasium; there’s also a shop and activities area there as well. And as you get about halfway along the fence line, you come to the accommodation housing. And it’s actually a housing design; it’s not designed to cells. Each one of those white roofs that you see there is a house. The mindset is that the house is the secure perimeter, with a normal prison you would have a cell but the actually house itself is the cell, if you like. So there’s open access inside the houses. And as you move around to the right - - -

COMMISSIONER WHITE: They’re locked down in the houses at night?---They’re locked down in the houses. They’re not locked down in the rooms.

No. No?---So they have free access during the night.

Right. So they can’t get out and wander around the campus, as it were?---Not around the site, hopefully.

MR McAVOY: I will come back, Mr MacFarlane, to how you allocate inmates to particular houses?---Yep.

But if you could just continue with the general description of the physical layout?---And if you head around to the right, there’s a different cluster of houses, broken up into two sections. You will see the big green patch in the middle: obviously, Western Australia, Aussie rules all that thing, so always build around the


5

10

15

20

25

30

35

40

45

oval. And as you come further around, you will see a cluster of about four houses with a green patch in the middle. That was the remand maxi section, so when people first come into the prison, they do their orientation there. Come in off the street.

COMMISSIONER GOODA: And how long would the orientation take, Mr MacFarlane?---Initially, when we started, it was 21 days. And as we reviewed over a period of time it went down to 10 days. So it was just broken down into various subjects such as Occ Health and Safety, healthy food handling, different programs that we would run there as well.

COMMISSIONER WHITE: That’s quite long, isn’t it, in prison terms?---It is, and the reason being is the houses were autonomous, so we needed to teach people when they came in to be able to go into the houses themselves and basically look after themselves, cook their own meals, clean, do their own laundry, so life skills.

Yes. That’s quite different?---So that little cluster of houses with the green was the remand maxi section, and you can’t actually see, there’s a little bit of a hump there, you come across, and that’s the women’s area. That held initially 30 beds for the women. And over a period of time it was increased to 40 beds. So it’s actually a mixed facility, a mixed site, men and women within the secure perimeter.

Is that unique in Australia to do that?---I think initially it was. There were areas in other jails where they had women within, but they’re generally confined and they don’t generally mix. We – I treated that as a community. So that was the build and design of the actual prison itself. If you took the fence away it could be an outer community in the Kimberley. So men and women mix in the communities, why don’t they mix when they’re inside. You’ve got families there. You might have aunties, you might have nephews on the other side. Culturally, people know who they’re not allowed to associate with. Especially in the Kimberley, they’re well aware of that, cultural people. Again, the mindset is you do it in the community, why wouldn’t you do it within the prison, as long as there’s safety parameters around it.

I’m sure you want to go back to those sorts of issues, anyway, Mr McAvoy. So we have jumped the gun a bit.

MR McAVOY: So if we could turn to photo number 15, please, operator. Could you describe that photo?---That photo is the inside of one of the houses. As I’ve said, there was two designs. There was a medium house and what they call a minimum-rated house. Well, although they’re both rated to medium security. So basically you can see where we are, this is the verandah area, and off to the left of the photo is the rooms, and, again, they’re designed as rooms. If you walk down the corridor towards the end where the clear glass door is, it’s actually a mesh door. That’s where the laundry showers area were, because they didn’t actually have showers in cells, so that’s why they needed to be able to move around to showers and toilets during the – ..... the house at night. Through the grey open door is into the kitchen dining area, there’s also an external verandah area, and if you look out to the


5

10

15

20

25

30

35

40

45

right, where you can actually see out the windows, that’s actually CrimSafe. It’s a mesh. So it was designed for – given the humid conditions in the Kimberley, the air flow as well, and the cells themselves were air-conditioned. Certain times of the year, hot season, it’s 45 degrees and 90 per cent humidity. So, like the rest of us, people need to be able to go to sleep so you can go to work, otherwise you get cranky.

And if we can turn to photograph number 19 please.

COMMISSIONER WHITE: Can individuals lock their own doors?---They could. They had time out if they needed it, so they had an individual key for their rooms, and the staff had an override key and there was one person to a room, mostly, and they’re quite a good size, the rooms.

So if they wanted to ensure that no one would disturb them, they could - - -?---That’s correct. And same as if they wanted to look after their gear and other bits and pieces; they had an area where they could put it aside.

Yes, that’s always an interest to detainees, isn’t it.

MR McAVOY: Can you just describe this photo and particularly I’m interested in hearing about the retention of the natural environment?---Well this photo is just taken at an angle of the basketball court, so it’s a recreation area, and there’s also the men’s shop in that area. But, you know, when the design came about in relation to the trees, normally, when you build a prison nowadays, they clear the site, because they’re concerned about hanging points and other bits and pieces. With the early discussions, this was to try and keep it as natural as possible. So if you’re looking at a community, again, in the area, and that was the mindset, you keep it like a community; don’t level it all out. Because the first thing the superintendent does is plant trees and try to and grow them again over the next 10, 20 years. And also the boabs were protected, so we kept in line with the protection of those. We moved a few into the town site, as we needed to, but where the guys were building they didn’t actually move them, the boabs, for that protection reason as well. And because – if you see the red dirt and the soil and the trees there, it tends to create a lower atmosphere in the gaols. Some gaols have a real high atmosphere, when you walk into the West Kimberley it’s very low, as in tension, as in behaviours and those sorts of things as well. It’s the natural landscape.

And I wonder whether you are able to comment on the extent to which – if there were any incidents of self-harm at West Kimberley and if so the ratio compared to other facilities?---There were a couple of incidents, but they were extremely low. And I will give you an example. Early in the piece, because a fellow was residing in a house with seven people in it and they’re all countrymen, so all that means for me is, as a superintendent, is you have people from the same family or same communities in the same area. And if one fella is a little bit shaky, then there’s six sets of eyes to be able to watch them from family, and they will let you know what’s going on. Now, this fellow, he did try to self-harm when he got there and the family


5

10

15

20

25

30

35

40

45

stopped him from doing it; by family, I mean the other prisoners that were in the house with him. And then after that was the family issues of – they’re all responsible for that man while he is there because they’re family. So if he had have committed full self-harm and hurt himself, they then become responsible in the house. So I actually had to move the man out of that house and away from those guys because after they got over the initial, you know, reaction and grief on what the guy was trying to do, then a little bit of anger set in as well, and that’s where the payback sort of stuff comes from family, and, you know, “Don’t do that. Don’t put us on the spot.” So it’s kind of the reverse. I actually needed to move that fellow out because the family were unhappy with him for trying to hurt himself.

One of the observations that comes from the material is the use of cultural mechanisms for determining allocation to houses as opposed to relying specifically upon classification systems. Can you just explain how that worked?---When I mentioned earlier there was two security ratings for the houses, one was a medium and one was a minimum, the initial mindset was that if a person was made a medium security and minimum security they would specifically go to those houses but the cultural considerations were for family. So if you have got guys from the same communities or from the same areas, and you got two brothers, and one brother is medium and one brother is minimum, put them in a house together instead of separating across the site. The actual design of houses, when you went back to the first picture, you could see how the clusters were laid out, and the clusters are designed for people from specific regions, because this houses all people from the Kimberley. So you would have one area for West Kimberley, if you like, for Broome, south of Broome, and those areas, Derby, where the families are mixed. Then you might have one area there for Fitzroy crossing and for the communities around there. You would have one area for Halls Creek, Turkey Creek, those sort of areas, and then one for Kununurra. So that’s how the clusters were designed across. So, again, you are putting people in from the same communities and families as much as you can in together.

And that falls from the, really, from the philosophy that underpinned the whole prison?---That’s correct, yes.

And you’ve spoken about the philosophy in your – in the précis. Are you able to just describe for the Commissioners your understanding of what the philosophy was for that particular centre?---Yep. So basically it’s built as an Aboriginal-focused jail. So keep the focus on the Aboriginal side of things. You might have a certain percentage of local people as well that are non-Aboriginal, but a lot of them have been brought up with people in the language and the culture from that area. With the housing design, you would also have a spokesperson like you have in the community, someone would be able to speak up for the houses, which is what we do in community practice. And it’s not so much being a prison on the outskirts of town; we actually need to be part of that community. Where the cultural element came in was the input initially across the Kimberley from the elders and respected persons when they had the initial talks, I think about 2005 to 2007, up to the design and the build of it, and then the ongoing community interaction through, like, community


5

10

15

20

25

30

35

40

45

reference groups, visiting elders, respected people. And again that cross-cultural awareness. It should be actual competency by now. Everyone is aware that there’s Aboriginal people around and culture-wise, but we have had a couple of hundred years to sort of get a little bit competent in it, know how to talk to people and deal with people. So part of that also, which is probably touched on in my précis, is recruiting and getting local people from the local area as much as you can. And, again, you want to be part of that community, as opposed to bringing people in from other areas. And the amount of Aboriginal staff you get on board, because it helps break down the barriers as well; there’s those connections there.

COMMISSIONER WHITE: If there were any, how did the non-Aboriginal prisoners manage in that environment?---They managed quite well, actually. And it was quite surprising. The non-Aboriginal prisoners adapted to the routines that were there, because I think they realised there was a bit more on offer, if you like, than the normal standard prison in relation to life skills. They have the opportunity to do relevant training. As I said before, Occ Health and Safety. The fact that you can learn how to cook your own meals and run your diets and try and get healthy eating as well, they are all part of that. So it wasn’t just for the Aboriginal people from the area. Again, that was the focus, but there’s also people that married into families from that region. We don’t necessarily send somebody down to Perth because they’re not Aboriginal and they’re from that area. There are still families and connections and they’ve gone to school with people there as well.

So, in effect, you would have – your non-Indigenous prisoners would actually come from the Kimberley?---They would generally come from the Kimberley, but like every prison on occasion we would take a couple from the metropolitan area, as they call it, just to give them a break, is the easiest way to put it, so - - -

Alright.

MR McAVOY: And in terms of the philosophy of the West Kimberley prison, how important was – is the role of mentoring, the practice of mentoring in that prison?---That would have to be the most important role, mentoring day-to-day. And whether that’s the staff, the prisoners mentoring each other as well, because you still have the hierarchy in the culture. You have senior men and senior women as well. As I mentioned before, culturally, people understand who they can talk to, who they can’t talk to. I don’t need to reiterate that. People are brought up with culture all their life. And it was more of – probably the people not from the area is – teaching them that culture. When the first batch of guys came in, we sat down, we had a bush meeting, which you sit down on the ground and everyone sits and talks, and just explain what the prison is about. And the first 21 that came in, we looked at them as mentors, to be able to – as the next groups would fill the prison, came in to be the mentors for those next groups, and we tried to mix that up from the different family culture groups from around the area. So not only was it the staff who were Aboriginal employees and from the area, but also the fellows themselves, you know, everyone is for different offences, so there’s high scale and low scale. So - - -


5

10

15

20

25

30

35

40

45

You are familiar with the term cultural safety. Can you explain what that term is and what role it played in the management of the West Kimberley centre?---Well, for me as superintendent, just having that knowledge of culture. Again, how to approach people, how to speak to people. One thing I noticed when the guys first came in: they would usually have their eyes down and they wouldn’t be looking at people. And I’m talking about the prisoners, as they came in. And I after I realised for a while it was about building self-determination, a little bit of pride in people. But the monitoring was really important on that. So if you had a young fellow come in off the street, you didn’t need a staff member, you know, pointing out right and wrong to him. If you had a mentor out of the Aboriginal group, the Aboriginal prisoner group, they could actually mentor the fellows into, you know, “This is what the prison is about. This is why we are doing the life skills, the healthy eating, keep yourself healthy.” And there was also a two-way communication in relation to cultural side of it. As staff come up from different areas, elders would come in, respected persons would also come in. We would run sessions on that. But also the prisoners themselves, and explaining that you actually need to teach these people your culture because they’re not from the area. They may have come from Perth or the metropolitan area; they have never had any dealings with any remote Aboriginal people before. The only dealings they have had done with Aboriginal people was mainly within a custodial environment, so there might be a slightly skewed mindset there. The idea was to break down that mindset.

Now, in terms of the life skills that you have mentioned that are taught to people when they arrive, you have mentioned the cooking program. Where was the cooking undertaken?---You would see the housing before. There was a kitchen area, but there’s also outside cooking pits and cooking areas for the inmates in there.

Fire pits?---Fire pits. And it was like the old metal barbecue on the stand, if you like. The plate would swing across on to the heat, or the grill would swing across on to the heat and from time to time we would get allowable, you know, like kangaroo meat and those sort of things in when we could, wherever we could source it from, because there was the other issue of hunting on somebody else’s land. It takes a bit of work. But the outdoor cooking: as much as we could, because it needed to reflect the communities. If some of the communities don’t have power from time to time, other bits and pieces, then people cook outside, keep the heat out of the house. And a lot of the older fellows and that don’t like air conditioning because it makes them sick, as far as they’re concerned, so we needed to reflect that side of things.

How different did you find the West Kimberley philosophy from other prisons that you had worked in. You’ve worked in a number?---Probably the only one I’ve ever seen.

Like that?---Like that.

And can you just explain what the most noticeable differences were for you?---Interactions with staff, from, say, when they first got there until a period of time where they’re actually chilled out a bit and got the understanding of what the


5

10

15

20

25

30

35

40

45

philosophy was about. It may sound funny, but the prison was actually a learning environment. I didn’t have the luxury of being able to get people before they got into the jail. As a superintendent or general manager I only have the luxury of the people that are sent there. So you do the best you can with the people that you have got there and the staff that you’ve got there. That communication of, you know, people breaking down barriers by talking to people and not talking at people - - -

And how important was it to – I notice in the précis you refer to open days in which the prison staff would bring their families?---That’s correct.

How important was that?---That was really important. And again some of the ceremonies we would had throughout the year. But getting the family in there is – the easiest way to put it is if something happened in the workplace and the staff would go home and debrief with the family, or tell war stories, as we call them in the system, the fact that the family knew the layout of the jail and the atmosphere and the interactions from the staff – and there wasn’t too many of those incidents, and I don’t believe there’s been too many since I left. It was – they’re just in the atmosphere. It was a safe work environment, safe for people to go to, and the family can actually see where your wife or your partner or husband, or whatever the relationship was, where they’re working on a day-to-day basis. So each time they flicked over to an episode of America’s hardest prisons, they knew that that was totally the opposite of what was happening in that prison.

COMMISSIONER WHITE: Mr MacFarlane, I know you weren’t there right at the beginning when it started, but who was the driver? Because you have usually got to have a champion for change. And who was the driver for this in Western Australia that it should be a different kind of detention centre?---Again, I knew there was a reference group from across the Kimberley. I’m not sure, because 2005 I wasn’t – I didn’t come on board until about 2010.

Yep?---Now, whether it was – there was a couple of local drivers, community-wise. The Shire president, Elsia Archer, and a few of the others that were interested. And she saw they were linked into Aboriginal families as well, from that side of it. And the driver – basically what was happening, what we’re doing, doesn’t work, in some respects. Let’s try something different. Again, not involved in it, but I know there are some people out there that were on the peripheral when they first started but gradually moved on. But perhaps – there was an original document, I think, from about 2005, 2007 on that cultural group. So they would have the names of the people that were the champions that were involved in it at the time.

Have you heard about the commitment of funds? Was it – I mean, this looks quite an expensive design project and, of course, it’s remote but there was always going to be one, and I think you say the plan was actually to roll out two prisons in that - - -?---Yes, that’s correct.

- - - in the general area. But have you heard whether it was thought that this was a more costly realisation of the idea than if it had been a traditional kind of prison with


5

10

15

20

25

30

35

40

45

the cells that we know?---On several occasions, Commissioner, I heard how much it cost.

How surprising?---Surprising. Look, originally, in the original concept, there was to be a smaller version of that prison, or the sister site, if you like, in the Kununurra area. And I think – from what I gathered, it was the will of the people, if you like, from the area. Some people don’t mind having a prison in their area. Some people do mind having a prison in their area. So that all played into it. I believe that they expanded the numbers for the West Kimberley and that was going to be the trial site and whatever that came out of that, what worked, what didn’t work, when you do your feedback over a period of time to see what works, what we could do better, and that was the mindset, to build up the sister site up around the Kununurra area, wherever it happened to be. So, yeah, I believe – there were those discussions. But, yeah, I got constantly reminded about how expensive it was, because, you know, some of the factors involved that you are competing with the mining companies and those sort of things at the time, you have to attract staff to the area, so part of the cost was the housing element and housing was through the roof at the time. You know, $1800 a week, $2000 a week rent for those sort of things. So that all had to be factored in. And basically what it came down to was a million dollars a bed, I think the costing is, in the long run. With the initial budget that I’m aware of it, I believe they did hand some of the funds back, which I sure could have been used a little bit later on, but it wasn’t to be. But, yeah. Two sites initially, a smaller one, see what works, and then transfer that across to Kununurra to be able to capture all the people from the Kimberley area.

But that in fact hasn’t happened, has it?---Hasn’t happened. No.

And is there still need for prison beds, or are they sufficiently accommodated within the West Kimberley model?---I think as soon as you build a jail that’s full, nowadays, and whether there’s the will there still could be my response, Commissioners, so I don’t know if the will is still there.

So it – this model hasn’t had the effect of reducing the incarceration?---No. It was the perfect opportunity to show case what you could actually do. We had a lot of visitors from around the world would come and have a look. Funnily enough, it was convincing the locals, if you like – and, I mean, not the locals from the local Kimberley area; the locals as in the people that have some input into it, what it was about. I think there was just a slight disjoint there, and I will leave it at that.

COMMISSIONER GOODA: I might – sort of related to that, you talk about recruiting the staff. How did – there would have been existing correctional staff who came to the Kimberley?---That’s correct. When they originally looking at setting the jail up, Commissioner, it was – look at the Glen – or Greenfield site, as I call it. You have got a Greenfield site for a prison; you should have a Greenfield site for your staff. There was some arguments over having a transfer list and not having a transfer list. Western Australia has a transfer list, where basically officers can transfer around the state. Some debates with the union at the time early in the piece about,


5

10

15

20

25

30

35

40

45

“No, it’s unique prison; it has been purpose-built. It’s a focus prison that’s built for a reason.” Their counter argument was, “No, it’s a prison like anywhere else and our guys should be able to transfer out when they want to transfer out.”

COMMISSIONER WHITE: Did you lose that battle?---I lost that battle.

COMMISSIONER GOODA: So how did you deal with – you got these people coming from what I would call a normal corrections facility into this one. How did they cope with that?---That’s when you have to step up as a superintendent and be the role model, if you like - - -

Yeah?--- - - - and just keep on them, at them, “This is what the philosophy is about.” You say, “It’s not this prison. It’s not their prison. I want your best ideas, yes, that’s great. Leave your old stuff, leave your baggage,” the easiest way to put it, “and come and have a look at what the philosophy is about.” And that’s just reinforced by your management team, your little champions in the jail that you have as well that believe in the philosophy. As I said before, that cultural awareness from people just explaining, you know, why people act in a certain way, or, you know, if you are standing alongside somebody and people are talking and they won’t look you in the eyes and all that. It was just that – the whole cultural shift for people to be able to come up that maybe were a little bit set in their ways. Didn’t win all the battles. There were some there that didn’t change and probably haven’t changed now, but they come for other reasons.

Yes. I won’t go into that ..... your statement on that?---Educated guess, Commissioner, I would say.

Yes. But overall, it did create a change - - -?---It did.

- - - in the way people were dealt with in - - -?---It did. And the way people deal with another human being on a day-to-day basis, probably the easiest way to put that. But even the feedback from the communities we got over a period of time, we know the fellows that have been in where you are, when they come back to the community, they’re interested in the community, they’re actually in there, they’re cleaning the houses up, trying to do the right thing and that. But just depending on how long the time frame, because you also need that community support. If somebody comes out of a prison where they’ve ..... up and the pride is there and self-determination there, how will that affect your community in the long run. Can they go back and cook a meal for their kids, and those sort of things. That’s the feedback we were getting. It’s just that period of time and support. If it’s a dysfunctional community, and I won’t name any, but the support from the community for them to be keep doing that, to get a real job and those sort of things as well, that’s an important part of the community. So – had to start somewhere.

Yeah?---Captive audience, let’s use it.


5

10

15

20

25

30

35

40

45

MR McAVOY: I might just ask you a question about the role of the superintendent in maintaining the philosophy and appropriate attitude amongst the officers. How important is it for a superintendent to be on the floor, as it were?---Extremely important.

How often, once a week?---For the last six years I probably walked that site, you know, once every two days. I try to make a habit of getting out and going for a walk at 2 o’clock in the afternoon, which is the hottest part of the day, because I know some of the staff would be all huddled up in the air conditioning in the offices and things like that. So you have to be seen. You can’t just sit in your office and not be seen and have a closed-door mentality. You need an open door policy. You need to get out. At the same time you can also talk to the prisoners on the ground and find out what the issues are, find out from the staff what the issues are. Because you have a hierarchy and rank system, it doesn’t always get through. It gets filtered. So it’s really important for a superintendent and general manager ..... float – need to float around your site, talk to people, find out what’s going on.

Commissioner Gooda has just asked you some questions about staff recruitment. What was the ratio of Aboriginal staff from the local area to non-Aboriginal staff by the time you departed?---We were in the 18 to 20 per cent mark. I think the statewide target was between 6 and 8 per cent or thereabouts.

And did you have a target yourself, other than the state-wide target?---Well, the original target was 50 per cent of staff for that particular site, or as close to it as I could get.

And the reasons you couldn’t achieve that, or you hadn’t achieved that?---Probably the transfer list didn’t help for correctional officers or custodial officers. But what I did is ..... sat on about 30 or 40 different panels when I first got there to try and get the people in at the non-custodial roles in the areas that I needed them, who had the right attitude and the right mindset as well. And again looking at the local aspects as well instead of bringing people in. Sometimes you need to, and I do understand that. But that local knowledge is really important.

You’ve talked about local training as well?---Local training, yes. Part of the training was to do the correctional officers training in Derby and not send people away for three months down to Perth. Because you will find that Aboriginal people have close family ties. If you send them down for three months, you lose – if something happens with family, trying to get back on the plane to find out what was happening. So when we recruited, the majority came from across the Kimberley. The training was held in Derby itself. We actually got the trainers to come up and do the training, so people were close to family. And they go home every night. And then if something would happen family-wise, they’re only a couple of hours away from being able to go and resolve that. So the first two years, we didn’t lose anybody off that recruit course.


5

10

15

20

25

30

35

40

45

And with a staff ratio of 20 per cent Aboriginal staff, did you find that that had any effect on the atmosphere and the attitude generally amongst staff?---Yes, I did. It was a positive effect, actually. It brought violence down within the centre itself. Opened the lines of communication up. A bit of humour there when you needed it as well.

COMMISSIONER WHITE: Was there any likelihood of conflict if – because they were local people that you had recruited into the service and, of course, your population was largely a Kimberley population as well, were conflicts manifest or did they not arise?---They didn’t really arise but if there was a situation where, say, an Aboriginal staff member couldn’t search somebody else for cultural reasons and that, we made local procedures and policy to get around that. If there were issues: mediation, use mediation for prisoners, mediation with the staff as much as possible rather than resort to using the Act and regulations, if you like. If there was any history between people, just sit down and talk. It has been happening for thousands of years where people can sit down and talk and try and resolve it there and then. If it got to an area where they couldn’t resolve it then someone would work in one part of the prison and the other person would be in the other part of the prison, and the two didn’t meet.

Obviously it would need to be articulated to you, so you needed to make it a safe thing to talk about the possibility of conflicts?---That’s right. And as I mentioned before, if it was more of a cultural type thing, because I’m a Noongar man, so I’m not from that area. So you get the people that were from the area, as I said the elders or respected people or whoever was need to try and come in and mediate that. Again, the philosophy of the jail being a town with a fence around it.

I was also interested in skilling the prisoners for work, and just wondered whether there was enough work for them when they left the prison so that their skills were able to be realised?---One of the roles that I had was actually an employment coordinator role. And they would travel out to the communities to find out what the communities actually needed as opposed to what they thought they wanted. And quite a lot of the feedback came that there was jobs in the local community Shires and that, but the main thing was maintenance and the everyday type stuff, operator tickets and those sorts of things as much as we could. But the maintenance one kept coming up all the time because it cost an arm and a leg to get a tradie in to go to a community to replace a broken window - - -

Yes?--- - - - or hang a door. Whereas if you could train the people up to get those jobs in that community, and then you get that pride bit as well, because, “It’s my community. I fixed that; don’t break it.” You know, that mentality as well.

So you were teaching them sort of basic plumbing and carpentry?---Change a washer on a tap. As long as – and that’s the thing, the Occ Health and Safety requirements and the regulations and all that. As long as the ticket was the right ticket to be able to do it, it’s fine. But, you know, in your own house you should be able to change a window or hang a door.


5

10

15

20

25

30

35

40

45

Or fix the generator?---Fix the generator was good.

Imagine that. That presumably would have had a huge effect on the community itself becoming more and more self-sufficient?---It would. And there were steps towards that and again I can’t comment now, having left, what the progress is in relation to that. One of the projects we looked at was working with of refuse guys doing a Certificate II or Certificate III in Waste Management, the idea being that the prisoners would go to the local tip in Derby and learn how to run the tip, and the waste management, and then be able to go back to their communities to be able to run the tips and everything in the community from that training. So I don’t know whether that eventuated either, so – you can only control what you control when you are there. And from the reading and writing, if you like, element of it, some people can’t read and write, so we went to visual and hands-on. For example, if we are doing a concreting course, we would photograph the course throughout and then when the prisoner left they would have a photograph of a portfolio. So if they went up to yourself as the Commissioner and said, “Right. You done this concreting? What did you do there?” “Well, I cleared the site, then we packed it down. Then I put the ..... in. Then I do this.” I’m not a concreter by the way. So you knew that that fellow knew what he was talking about, and he is there in the photos, “This is the work that I done.” So there’s ways and ways to do things and it was mainly, as I said, the education levels are reasonably low. Just needed a different way to tackle it. It’s the same as the feedback I get the – when the first place – when the place first opened, “You won’t get these guys to work,” and that was the attitude. Yes, you will; you’ve just got to do it differently. So they managed to run the laundry, the kitchen, the gardens, the grounds and that, 95 per cent Aboriginal people. So something must have went right.

I was also going to ask you about, two other things. Perhaps when you are talking about gardens, was that in an attempt at self-sufficiency, for some growing things?---We had garden beds within the site and, again, some of the men and women never had that opportunity to do that. We had the Taj MaChook, and I will explain it to you in a minute. But the garden beds – it was growing healthy, healthy eating, healthy lifestyles, what you could grow and what you could eat, and they would produce – it would go back through the houses, through the kitchens as well. Some of the other projects we looked at was – we had aquaponics with fish and veggies and the herbs and everything. And some of that would go back to the kitchen, but it would also go to the local community for the kids meals, school meals for the kids in the morning before they go into school and that for the ones who don’t have family there, so at least they have got a healthy meal for the day. And then the Taj MaChook was the chook house in the women’s area. It looked like the Taj Mahal by the time it was finished. But it did a couple of things. It was the element of being able to look after animals and empathy, building that in the prisoners that we had, and also the fact they could produce their eggs, use the eggs from that side of it, use the chook manure on the garden beds, so a bit of self-sufficiency in the long run.

Yes?---And again it’s the little things you can do. We also had 15 or so – I can’t remember what they’re called, but I will think of their name – birds that we rescued


5

10

15

20

25

30

35

40

45

from the immigration centre when that closed down as well. They’re the ones that point out snakes and all that sort of stuff on the site. The name escapes me at the moment what the bird is called. So, again, building that empathy side of things.

We would all like some birds like that. A final question, at least for the moment, Mr MacFarlane, is language. Presumably for a lot your detainees, English would not be their first language?---That’s correct. There’s about three or four main languages from that area. English is the last language, normally. And again that’s where the elders or people from different areas step in. That’s why we have the spokespersons in the houses; someone will be able to speak on behalf of that particular house or group.

That would be that language group as well?---The language group as well. Yes. But there was also – as it progressed further, some of the staff are interested in learning just a short, saying, you know, “Good morning”, or “Hello,” or, “How are you going?” with language and those sort of things; showed me that those barriers were being broken down. So, again, yes, it is the communication element more than anything else. Just sit down and have a yarn with people. You don’t have to agree while they’re in jail. But, again, as I said, I got them when they were in there. I didn’t have anything to do with them beforehand or after-hand, so, you know, do what you can when you’ve got them there.

Thanks. Thank you.

MR McAVOY: If I can just take you back to the discussion you had a few moments ago about the employment officers position, was there any role that that officer played with any of the inmates pre-release in terms of assisting them to find work after – for when they were released?---They did. Again, initially when I got there, we did some travel to the communities when we first opened just to know that face – my face – and building those networks up in the community while we were there. But – yeah. She was – the employment officer would actually travel out and make contact with the communities. She would regularly take other staff with her to get those connections in and break down the barriers, so if a community made contact with the prison they had more than one person that they could contact with, but would go and sit down and talk to the communities and the councils, as I mentioned before, I said, “What do you actually need for your community?”

But then in terms of making sure that there is a job available for the prisoners on release, was any of that sort of work done?---That work was done as well. It was everything from labouring jobs – there was probably 20 to 25 that got employed, again, in that first two to three years when it was open. And everything from labouring jobs to – we have a couple of radio announcers that we trained up through a partnership arrangement with the local radio station to be able to go and run the radio stations in their communities and across the Kimberley because they didn’t have them. Realistic jobs as well.


5

10

15

20

25

30

35

40

45

Did that require any negotiation with other agencies for funding of positions?---It did require it. It also required some MOUs that were available as well, or we go and draft the MOUs up.

Thank you?---There’s also a short stay accommodation in Derby itself, which is a 54 bed short stay. That was built – originally, it was a tri-partnership between ourselves, housing, and I think it was child protection or one of the other ..... at the time. And what it was was 54 beds for people that would come into the hospital for treatment, because Derby was a regional hospital, and also during the wet season when people would get cut off from their communities and they couldn’t get back by road and they needed somewhere to stay. Initially they would come to town and load up the houses with families that were there in, so you would have 18 or 20 people in a house, which causes its own problems. But that’s the cultural side of it. Our partnership arrangement with the short stay was we quarantined beds for release, so if someone got released from jail, the bus or transport didn’t go until the next morning, we had somewhere for them to stay that was safe. And also they did the meals and the laundry and the gardens area for that site as well, and the upkeep of that. And is still going, as far as I know, today.

COMMISSIONER WHITE: Who actually owned the short stay accommodation, Mr MacFarlane? Was that government run?---It was a government run. It was Housing, Department of Housing, and again, I said – I think it was child protection in relation to it and corrections. It was an MOU between the three agencies.

So if they needed a placement for a child at risk, they could use - - -?---They could use that.

Use that?---Yep.

And what sort of accommodation was it? Was it dormitory type accommodation or cabins?---No. It was rooms with ensuites in them as well. They had family rooms. They would have singles. It was a break up of whatever size the family needed to be, the accommodation would have joining doors in if needed as well, to expand the size of it. It was cheap rates. I believe in those days something like, you know, $14 a night or something along those – it’s probably gone up through the roof now.

And was that cluster housing or was it one or two buildings?---It was a complex, but it was scattered. So, basically, again, if you got people from different communities, who don’t get on with each other, and there are rules for the place, obviously, you could put one group up there, one group there, and away from each other, while they either come in to do their – you know, the health issues that they had, or they’re stuck because of the wet season because the roads are closed off.

Yes. Yes. Right. Thank you.

MR McAVOY: A moment ago, you mentioned the role of elders in mediation of issues in the prison. Was there a process of ongoing engagement with the elders


5

10

15

20

25

30

35

40

45

from the Kimberley region by the prison and what role did elders play beyond simply the mediation role. What – did they have any other functions?---Well, yes, there was, and tried to make it quarterly, if you like. But they were coming more than quarterly, because I would get a phone call from the elders and there were elders sitting on our community reference group as well. They would want to come in and have a visit through the jail and just to talk to people and that. You know, if there was unrest in some of the communities, they would come in and talk to people and actually tell them what is happening and pass the messages on to family and – the bush telegraph element, things get distorted sometimes. And just bring them back to a sense – you know, “No. That’s not happening. This is what’s happening out there,” just to allay some fears and that. Some of the mediation that – yeah – it was required to be done as well, if it was needed to be done because the elders had that respect. And also, for example, one of the elders was also – her expertise was plants and medicines. So she would come in and teach the men and the women about what that plant was, what it was for, medicine-wise, so she was handing that knowledge down through that generation because it was sort of getting lost otherwise. So there were those opportunities too.

And did you have the capacity and did you make use of – if so, did you make use of traditional healing or traditional medicine practitioners?---We did. We would have regular smoking ceremonies, so I will give you a couple of examples. So if you had an Aboriginal person from another area that was transferred up to that jail, there are certain steps that you normally culturally you would need to do. To be able to go to that country, you have got to get permission from the traditional owners to be on the land and everything as well. As an agency, we didn’t do that; we just transferred them up. So they felt out of place. So I would get the elders to come in and actually do a welcome to country for that, to try and break that down, so they would actually – because they’ve been welcomed to country and that land, they’re actually allowed on the land now. So that was one thing. Nungari, or the witch doctor, or whatever terminology you want to use – that’s what I use, so – we would bring the fellows in as needed. If there are certain issues going on on-site. And again they would come and do a ceremony as well, and things would generally calm down. So again that’s the cultural element. To me, it’s stuff that you use every day, but, I suppose, it’s – for other people it’s not. But it makes sense. You are managing the site, you are managing the group of people. You use what works and people believe in that.

Another – I suppose, another aspect of the way in which it appears West Kimberley Prison was run is that there was some effort made to allow prisoners to have access to music?---To – sorry?

To music?---That’s correct.

Musical instruments. Can you just discuss the role that that played in managing the prison?---If I’m smiling, I will explain the reason why I’m smiling, because music and AFL is – as I said, over there, that’s why it’s built around the oval, but music and art are the other elements. They have got some good artists and that as well. So you concentrate on the skills that they’re good at. Now, in relation to music, when the


5

10

15

20

25

30

35

40

45

site was built, they built a spiritual centre for the Aboriginal people on site. But it wasn’t built by Aboriginal people, so they wouldn’t use it, which has happened before. So eventually I converted it into a music library. And it wasn’t like a music CD library; it was actually a musical instrument library. So prisoners could go down – we had about four different bands on site. They could go down, use it as a library, then go into the room there and get the guitars and whatever and do a bit of band practice as well. And, again that just brings the atmosphere down. But the ulterior motive for that was when we had NAIDOC and the other different ceremonies throughout the year, I knew I had four bands that I could call on to do the music for the day. There was also a partnership with 6DBY, which is the local radio station there. They would come in and do live broadcasts and things as well, because they have got that seven second delay. We had systems in place where you only used somebody’s first name, all that sort of stuff that meets the requirements. And they also would come in and do some recording of their music as well for the guys that are pretty good artists. When I say guys, I mean men and women; it’s just my terminology. And also music programs. That’s why that – as I mentioned before, that led to the announcers, radio announcers as well. It’s not your everyday type jobs, but it’s what that community needed in that area. And the funny story: we would have NAIDOC, and it would be on their live, and we would get phone calls to the prison saying, “Can you get them to turn up the microphone on the lead singer, because we can’t hear it out in the community?” So we actually knew that the message was getting back to the community through the radio.

And I take it from the way in which you’ve been speaking about that project that – that aspect of the operation of the prison, that you got some reward out of that?---I did. Yep.

And it had a positive impact on the prisoners?---Yeah. And I still get feedback from some of the guys that are long term. I had the Shire president pay me a visit to let me know how things are going so those connections are still there. But, yeah, just a positive. And, again, it was – the self-esteem was what we were trying to build for people, and what you can actually do – people had never had access to those things. You know, they may not have access to a workshop where they can go and learn a proper course, because in the remote areas I think there’s the expectation everything will come to the main centre, and if people want to live their more traditional lifestyles out in the areas, that’s a sacrifice you make, you don’t have all that. While we have the captive audience, give them the positive stuff that they can do, and build on that positivity and self-esteem. So, yeah, there’s a lot of pride in that place. And I walked that site for six years, so – yeah.

COMMISSIONER WHITE: Such a facility which is different from the mainstream, is it dependent upon the superintendent for its continued effectiveness in that original vision for it?---Two things. Dependent on the superintendent or the like-for-like superintendent, if you can get one, but you also need a champion in your dizzy heights, your head office and those sort of things. So if you have someone at that level that believes in what you are doing, believes in what the site is about, it’s less of a battle trying to manage upwards all the time. So if they don’t longer believe,


5

10

15

20

25

30

35

40

45

and they believe it should go in a different direction, then superintendents tend to move on.

Yes. I could understand that being very difficult. There’s no real way of ensuring that that – of course, that momentum is maintained. If you lose that particular mentor upstairs or if some Minister thinks that there’s not the right way to do things, it becomes more difficult, presumably?---It does. But the hope is that what you give them philosophy wise, even the prisoners in there, because there’s some long-term prisoners and some long-term staff, they will run with that philosophy as much as they can, because they will be fighting those battles now from a lower level as opposed to the superintendent’s level.

And perhaps another question that occurred to me while you were giving your evidence, and this is an across both the juvenile and the adult systems: how did you run the system of giving your prisoners a voice themselves about their – lots of things they did, of course, wonderful activities - - -?---Yes.

- - - but in terms of management, did they get to have a say?---They did. And you wanted the feedback. We would have regular staff-prisoner meetings or unit meetings where you get the feedback from the floor. And they would say what’s working in the units, what isn’t working. Also what they thought could be done better. You know, or, “Have you thought about doing it in a different way?” Because you want to try and take the blinkers off as much as you can, because you need that feedback. And, yes, you would come and you would have people that when they first came in didn’t say a lot, very quiet, quiet men and quiet women who gradually found a voice because they weren’t being bullied, if you like, or any of that stuff that does happen from time to time. You try and inspire people to step up and, again, as I mentioned before, a little bit of pride and self-determination, so – but that’s only through ongoing – you know, you have your women support officers, you have your cultural peer support officers and those things, but you also have the everyday staff that are Aboriginal people, and, again, as I mentioned before, from the area. So there’s a constant reinforcement that you need. Without the negativity.

Did you have a formal, a more formal structure than that? That’s open communication, of course, which is very important, but did you enshrine that in – or, once a fortnight, a prisoner management committee meeting with you or - - -?---I had a bad habit of floating the site, as I said, just about every day. So – but, yes, there was a more formalised process, as in a unit. You would have your prisoners meeting. You would have your prison meeting with staff. You would have your prison meeting with your senior officers that run the unit, and that would be fed back up. Or kerbside interviews, as they call them, as I walked around, and you get a bit of feedback, because they might be a little bit reluctant to speak to someone, especially if someone was new and they didn’t know them. And me, having been there from day one, if you like, they knew me, they knew I was approachable and that to come up and pass those ideas. And, as I said, sometimes it gets filtered. If it comes through me, it doesn’t get filtered.


5

10

15

20

25

30

35

40

45

MR McAVOY: I will just take you now to your discussion about the role that football players in the – in the communities in western Kimberley, and I just ask the operator to show us page 46 of annexure 1 to the précis. And if we can just enlarge the photo, please. You recognise that photo, Mr MacFarlane?---I do.

There’s a few different aspects to that photo. Can you just explain where that photo is situated on the site?---So when you saw the aerial shot, the green bit is the oval, Aussie rules version. I have had the other battles in Queensland at the moment with the square oval, but I won’t go there, and you have the men and women mixing on the oval. And you also see the staff are pretty casual. And that’s – that was the atmosphere that you wanted. As I said earlier, men and women mix in the communities – there shouldn’t be any reason, as long as there’s supervision there – and that probably answers all that question there. The staff are there to supervise. Women at the front left-hand part of the photo there, sitting having a bit of a yarn. The fellow walking on the walk path there. To build a design, you would – you would build a site and you make all these walkways and everything through it with all these great pathways and that, and people take a shortcut because they feel like they’re in the community so they make their own walkways as well. You’ve got the shade, a couple of ladies sitting under the shade cover there. And you’ve got a group – a mixed group, the four on the chairs there. Generally, they’re from the same community, and again it’s the men and women can have the interaction and talking as well, with the staff there, and again around the football. Which is what would normally happen in the community anyway. The footy match is the big thing for the week.

And we can see on the other side of the football field a number of buildings. That’s all within the perimeter of the facility?---That’s correct. If you looked at it, you couldn’t see the fence and that was part of the design of it. It actually looked like a community until you actually got up to the fence. Those buildings across the back are accommodation for the men and back this way, the opposite side of the photo, is where the women’s area, which is a separate area as well.

So from this perspective at least, for all intents and purposes, it looks like you’re sitting in a community watching a game of football?---That’s basically what it looks like and basically the feel that we’re trying to get.

And was it one game a week?---It was a couple of games a week, depending on how often the fellows wanted to play. I tried to have the interaction on once or twice a week, because weekend – you know, is generally visits days, but we also have visiting teams that would come. And there was a veterans team that would come in from Broome and there was local footy teams that would come in and play as well, often – either during the season or preseason. Get their match fitness, if you like, using the fellows there. So - - -

And so that access to football and what appears to be largely a lifestyle that’s not inconsistent with regular community life?---That’s correct.


5

10

15

20

25

30

35

40

45

The access to music, the way – the philosophy of the centre. What effects did that have on the wellbeing of the inmates, do you think?---I think it had a good positive effect. When people first come in – again, it’s a new place and they’re unsure and they’ve got to find their way in, if you like, in the world. But as they sort of evolve in the philosophy with positive effect – there’s some comments in that report about mental health and how we deal with people with mental health issues as well, by trying to make them part of the community, as much interaction as you could, instead of keeping people isolated and away. The amount of assaults and incidents and that were really low in that jail, and I believe they are still really low in that jail as well. And it’s just again the design of it: if you’re looking out across, as you said, it looks like a community. If you’ve got a building with big grey walls and big square windows, it’s the design and attitude of basically how a prison works. So if you have got a design with big grey walls and everything, people adopt that attitude of being – you know, locked away and housed away and that, and it’s the attitude, it’s the attitude of the prisoners, whether they want to be part of it, whether they want to adopt it or opt out, and the attitude of staff which is the same. Positive attitude from staff, positive attitude from the prisoners, and just keep reinforcing that. And the role modelling element as well is encouraging people to do programs or to do courses which is also part of addressing offending behaviour while you are there.

Were there any escapes from the Western Kimberley Region Prison while you were there?---No.

None at all?---None at all.

Over what period?---Well, it’s open four, five years now, so – and I haven’t heard of any escapes since.

And the relationship between the prison and the prisoners and the local community, the shire council elders, that was a good relationship?---Really good and really positive relationship to the extent that I believe now even their local emergency management meetings, the feedback I got last week, they’re actually being held in the prison. Which is your police, fire and emergency services and all that to deal with incidents or cyclones and those sorts of things in the area. Part of their rotating, which is what we discussed, was actually have some of the meetings out at the prison site and they’re doing that now. So it’s really good positive community involvement.

Of course, the Western Kimberley Regional Prison is an adult facility?---Yes.

In the précis you make the observation that it’s not a model that you would recommend for adoption as a – for a juvenile facility in the Northern Territory. But there are aspects of it that you think would be suitable?---Yes, there was a lot of elements I believe that would be transferrable, would probably be the word, and the processes that are there. The design, it depends on whether, again, you want to design a big grey prison or whether you want to design something different. There’s design elements that could be used. I think it was TAG Architects were the guys originally designed that. And again just the processes in place. But things like the


5

10

15

20

25

30

35

40

45

input of community is really important, and your elders and your family connection as well.

Yes. Annexed to your report, the précis, is the Office of the Inspector of custodial report – Custodial Services report for the west Kimberley region. You’re aware of that report, obviously?---I am.

And you’re aware of the position of the Inspector of Custodial Services - - -?---Yes, I am.

- - - from your time in Western Australia?---Yes.

COMMISSIONER WHITE: I think he is sitting behind you, actually, Mr McAvoy.

MR McAVOY: Yes. He’s waiting his turn, Commissioner.

THE WITNESS: And I do notice the familiar face at the back there, yes, of course.

MR McAVOY: Yes. Well, regardless of the fact that he is sitting there and he is going to hear what you say as you say it, what do you think about the importance of having an oversight role such as the inspector?---For me, it’s extremely important. You need to have another body or independent body that can come in for your checks and balances, if you like, to make sure that you’re heading in the right direction, doing the right thing, compliance, all that type of stuff as well. But there’s also the fact that the inspector’s office reports directly to Government as opposed to directly to the department, which I think is a very positive thing as well. And I’m not saying it is, but there’s certain things that could be missed or not commented on if they didn’t go directly via the inspector’s office to Government.

Is that, having that independent view of the operations of facilities, and particularly West Kimberley, is that important in assisting those champions that you might have in the hierarchy of the correctional services to make the case, as it were, for facilities such as West Kimberley?---I believe it does, because it also – it reinforces what’s working from an independent person. Can come in and actually have a look and say, “Hey, that does work”. And those people that might get a little bit snow blind at those dizzy heights as well, it actually clears some of the snow blindness from that, but again it’s nice to have a couple of sets of eyes coming over the top of you, every now and again, to have a look and see what you’re doing, and are we doing the right thing, is this working. it’s not just feedback from how many people are coming in and out of the system and how often they are. It’s actually an independent group that comes in and have a look, goes through our processes and sort of give a little bit of guidance, and they can also feedback at the appropriate level or higher level. So I think it’s a really important group to have.

One moment please, Commissioners. If you were in the position of being invited to establish a new facility, modelled along the lines of something like the West Kimberley, how long a lead time would you need in terms of ensuring you recruited


5

10

15

20

25

30

35

40

45

the right staff?---If you – if you count backward, would probably be the easiest way to do it. So an average correctional officer recruiting course is about three months. You need a campaign – if you like, information campaign before that. So you would need probably double that again. But you also need the community, as you say, the community participation groups. You also need input from the community. You can’t – you couldn’t just come in and say, “Yes, I think this is a great design and that.” You need to get them on board. But the – if you look at the timeframe for West Kimberley, which started 2005/2007, with initial discussion in the community as opposed when it was – when I started in 2010, opened in 2012, to be realistic it would be two to five year plan if you’re going to go that way. If you’re looking more at the end result, then you need – to me you need at least a two year lead in for it, because you would have to call all your architects in, all the rest, to get design, the community discussions. You would have all your groups that want to have a little bit of input into it and the actual physical training and the physical recruiting of people to get them. That’s why I started from 2010, from my angle, and the prison opened in 2012. So I was there for a two year lead in for some of the later end of the project scale, but also the lead in about creating the jobs and the rosters, and the positions, and the – you know, that – you can grab those JDFs and other bits, job descriptions from other areas, which you can use, which quite often is what we do. But again, specific to West Kimberley, because I wasn’t from the area, and I was new, and there was a series of faces that came and went and one thing I’ve found with remote Aboriginal people – and probably most people is you speak to one person in these three months, and then they move on, and you speak to another person and they’ve got a slightly different idea, and you speak to another person. It – it loses its focus and, for remote people, they don’t want to deal with you anymore because it’s not consistent. That’s part of the reason I said I would stay five years, I stayed for six. You have to get out and sell that. And I suppose you’ve got to have the right angle to come from, as in believe in what you do, which I did and still do. And what it’s about, and the positives that the community, because as I mentioned earlier not everybody wants a jail or a prison in their neighbourhood. So - - -

And just a few more questions. The road show you spoke of - - -?---Yes.

- - - what did that involve in terms of - - -?---That involved me travelling to Perth to speak to staff that were interested in it, travelling throughout the Kimberley having information sessions in each of the towns. You actually need to take it to the people. Most government departments expect people to come to them. Not if you want something different. You actually need to get out there and explain what it’s about. PowerPoint sessions, movies, explaining what everything the about. For example if you are recruiting people, quite often, from country areas, it’s word of mouth. If someone has been a good worker, they don’t necessarily fill in a CV or a job application. “What was that lady like when she worked?” “No, a really good worker, she has been with us for so many years.” Said, “Mate, really good, you will - - -” and it was word of mouth for people to get jobs. Governments don’t run that way. So, again, you need to get out there. There was also prior training in getting people up to standards as well. That was a discussion we had about numeracy/literacy levels and those sort of things, so there needs to be prep work


5

10

15

20

25

30

35

40

45

from that side of it, and basically it was down to what role they’re going to undertake within that facility.

The final question I want to ask you is in relation to paragraph 26 where you make some observations about the potential future direction of youth justice facilities. It’s paragraph 26 of your précis. And, in particular, item F. Although we’ve been talking about adult facilities and keeping people close to country, I take it from subparagraph F that you are of the view that the same holds for children. You’ve nodded your head?---Yes, sorry. I was just reading the article here. Yes, I do believe it does. Where I’m at the moment, we have 17 year olds in our system. There was a bit of discussion over that, so we have youth in the system. And again, from my experience is all I can speak on, is if you build a big youth detention centre in a metro area, if you like, then all those kids from the Kimberley region get sent down to that area. They’ve got no family, no contact, nothing for the ones that actually get the custodial side of things, and jail should be a deterrent, should be the last – it’s our last option, not our first. If you’ve got smaller facilities, and again it comes back to cost, and as I mentioned to the Commissioners before all I heard about was the cost of the site. That’s the balance you’ve got to do. If you have got smaller facilities – and I will use that as an example. If you had one in – say, Kununurra, covering east Kimberley, and one covering west Kimberley, it’s close to the family, because you’re not there to punish the families – and people forget that sometimes, too – by that distance. There’s the opportunity for family interactions, opportunity for people from that area, they’re still in the same region. And to me, if you send them away somewhere else, defeats the purpose, because they learn about bad habits when they’re in other areas. Yeah. I’m a big believer in the smaller sites, simply because of the fact that West Kimberley is a smaller site and you have that smaller personal interaction that you wouldn’t normally have in a bigger site. Where I’m now, it’s an 800 bed – 900, including the farm, so there’s less interaction than I would like to be able to have on a daily basis, but I still wander around the site as much as I can. So it’s just that more one on one stuff. And if you look at C, providing mentoring and providing positive role models. That’s – you can’t do that in a really big site. You need to get out there into the more one on one, and you’re just encouraging people and just guiding them in the right direction as much as you can. So smaller sites.

They’re my questions, Commissioners. I will tender the bundle of photos.

COMMISSIONER WHITE: Yes, please. Thank you. How many photos in your bundle?

MR McAVOY: It’s a bundle of 19 photos.

COMMISSIONER WHITE: Thank you. Exhibit 607.

EXHIBIT #607 BUNDLE OF 19 PHOTOS


5

10

15

20

25

30

35

40

45

MR McAVOY: The witness can be released. I understand there’s no other questions.


Well, I’ve asked my questions on the way, of course, interrupting Counsel all the time, Mr MacFarlane. Thank you very much indeed for coming to us here to talk about that experience. It’s tremendously interesting and we really enjoyed hearing what must have been a bit of a struggle at times to achieve the outcomes that you have, and it’s certainly something quite different for which you can be enormously proud, I imagine. So we’re really grateful that you were keen to come and share it with us?---Thank you for your words, Commissioner and yes, it was an interesting venture for a while there ..... so but again hopefully there’s some positive learnings from there that can be transferrable, if you like, and moved across. I always look at the opportunity. As I said, my comment is the glass is half full, it’s not half empty. When it gets half empty it’s time for me to move on. So – but thanks very much, and thanks for the opportunity to speak today.

COMMISSIONER WHITE: Thanks, Mr MacFarlane, you are released from your summons now. Thank you?---Thanks everybody.

<THE WITNESS WITHDREW [12.53 pm]

MR McAVOY: Commissioners, it’s proposed to play a short personal story before we rise for lunch.

COMMISSIONER WHITE: Yes.

MR McAVOY: Our second personal story for today is that of witness EC, Commissioners. EC tells us about the sorrow he and his family feel about the removal of children into care. He talks about his work on night patrol and his desire for greater support so that children can be cared for in the community. EC’s story has been recorded at his home and, as such, it includes a bit of background noise of wildlife. So - - -

COMMISSIONER WHITE: We’ve heard a few birds before, Mr McAvoy, and it has been very pleasant.

MR McAVOY: I’m not sure if those ones that Mr MacFarlane was talking about, that point out the snakes. But - - -

COMMISSIONER WHITE: We don’t want to hear any domestics, though, of course.

MR McAVOY: Well, I don’t think that that falls under the category.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: Yes. Thank you.

MR McAVOY: If we could play the personal story, please.

RECORDING PLAYED

MR McAVOY: Thank you, Commissioners.

COMMISSIONER WHITE: Thanks, Mr McAvoy. We will adjourn then, until - - -

MR McAVOY: 2 pm.

COMMISSIONER WHITE: 2 pm. Yes. Thank you. So Professor Morgan, I know, has been waiting in the wings but he will, I’m sure, pleased to come a little earlier than the program. 2 o’clock then. Thank you.

ADJOURNED [12.57 pm]

RESUMED [2.06 pm]

MR McAVOY: Good afternoon, Commissioners. The next witness is Mr Neil Morgan. Mr Morgan is in the witness box.

COMMISSIONER WHITE: Yes, thank you.

<NEIL ANDREW MORGAN, AFFIRMED [2.07 pm]

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

<EXAMINATION-IN-CHIEF BY MR McAVOY [2.07 pm]

MR McAVOY: Thank you.

Could you please tell the Commissioners your full name?---Neil Andrew Morgan.

And your present occupation?---I’m the Inspector of Custodial Services in Western Australia and an adjunct professor at the University of Western Australia.

.ROYAL COMMISSION 27.6.17 P-5120 N.A. MORGAN XN©Commonwealth of Australia MR McAVOY

5

10

15

20

25

30

35

40

45

And you’ve prepared a statement for the purposes of this Royal Commission?---I have.

On the screen to your left, you can see a statement. Is that your statement?---That’s correct.

Dated 25 May?---29th, I think.

Sorry. The date on the first page is 25 May.

COMMISSIONER WHITE: Signed on the 29th.

MR McAVOY: Yes, but on the last page – signed 29 May?---An error I didn’t pick up. My apologies.

MR McAVOY: And the statement is true and correct to the best of your knowledge?---It is, yes.

There are no changes you wish to make?---No changes, no.

Professor Morgan, the – sorry, I will – I tender the - - -

COMMISSIONER WHITE: Going to tender that?

MR McAVOY: Yes, I will, Commissioners.

COMMISSIONER WHITE: Exhibit 608.

EXHIBIT #608 STATEMENT OF NEIL MORGAN

MR McAVOY: Thank you.

Professor Morgan, the office which you hold is one which has a specific set of powers. Is it fair to say that it was the first of its type in Australia to have such powers with respect to the oversight and management of custodial institutions?---Yes, it is.

Are you aware of the circumstances within which that office came to fruition?---Yes. The circumstances, essentially, are that the then-government had decided that it wanted to develop a privately operated prison, which has become Acacia Prison, which is Australia’s largest prison. And there was a lot of debate, particularly in the Upper House, about the pros and cons of outsourcing, and essentially it was partly a political compromise. The Democrats agreed to vote for the legislation to allow the operation of a privately operated prison, provided that a strong independent body was set up to oversee prisons run by the private sector, other justice services run by the


5

10

15

20

25

30

35

40

45

private sector such as prisoner transport, plus equivalent services run by the public sector. And then in – that started in 2000, and then in 2003 the office’s jurisdiction was extended to youth detention facilities.

COMMISSIONER WHITE: Which are not privately run?---No. They’re not privately run, no.

MR McAVOY: And that model of independent oversight has now been adopted in other jurisdictions. Can you just discuss your knowledge of that and what other jurisdictions are involved?---For a long time we seemed to be just out on a limb in the wild west, having such a high level of oversight. But in 2013 New South Wales commenced its inspectorate, and I assisted the then-government with advice on how that might be established. Tasmania has very recently established an inspectorate and, because they are very small, they’ve located that within the Ombudsman’s office. Those are the three that are particularly operational at this stage, but the ACT has announced that it will have independent inspection. I think the Queensland government has accepted recommendations for an inspectorate in reports in both youth justice and adult parole. And South Australia, I believe has recently given its Guardian for Young People a little bit of a kind of inspection function. So that’s where we are at domestically. Internationally, there’s also going to be some interesting pressures and debates because the Federal Government has announced that it intends to ratify the Optional Protocol to the Convention against Torture, probably by the end of the year. Once that is ratified, then under the OPCAT, as it’s called, the Government has three years to implement that optional protocol, and the optional protocol requires in the inspection of all closed places, whether they are justice facilities, forensic health, or other closed places.

You’ve done some work in the past in relation to the Optional Protocol and the Convention against Torture?---I have, yes.

And in your role as inspector do you currently have any role in the discussions that are going on around coordinating in particular the monitoring functions that arise under the OPCAT?---It’s certainly something that has been debated at the Federal and state levels, and there’s a number of state agencies involved. I’ve been involved working with people like the Human Rights Commission on possible models. The debate is still occurring in Western Australia as to who might take the primary role because, whilst I have my independent inspection functions, we also have the Ombudsman, and the Ombudsman also inspects a number of – usually, rather smaller closed places such as facilities for people with disabilities, and we also have one facility called the Kath French Centre which is a facility for at-risk youth which has a secure-ish perimeter. Not what you would get in a normal detention centre, but it has got a fence around it. Those centres will all become subject to OPCAT jurisdiction. So one of the key things that is happening right now is that I’m talking with the Ombudsman and others about how we would see our roles once OPCAT is ratified and implemented.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: And what about the National Children’s Commissioner, Professor Morgan? Is that office likely to have some interest in this as well?---Yes. The National Children’s Commissioner and the Human Right’s Commission are obviously interested in the area. I think the Federal Government announcement, although it was not set in concrete, indicated that the Ombudsman nationally would be what we call the National Preventive Mechanism, NPM and the role of the NPM is to report on Australia, not just jurisdictions, but on Australia as a whole to the United Nations. So it would appear that the Federal Government has probably gone with the Ombudsman rather than the Human Rights Commission for the NPM role nationally, but then the question becomes how does each state and territory go about establishing its own mechanisms which then would report to the NPM? So Richard Harding, my – Professor Richard Harding, my predecessor as inspector. and I did some work for the Human Rights Commission back in 2008 as to what that model might look like. There’s still a lot to do, because there is a lot of discussion to be had around exactly the coverage of OPCAT. Probably at this stage, in my view, the area that’s least inspected in terms of closed facilities is actually police facilities.

COMMISSIONER WHITE: The watch-house in particular?---Sorry? The - - -

The watch-house in particular?---Yes, watch-houses.

But also, in a lot of jurisdictions, police undertake the transport unlike in Western Australia where that’s private?---Yeah. We certainly have inspected the police carrying out transport in the past. Now it’s outsourced, but there’s also done by the Department of Corrective services and we again inspect that aspect of what they do. But police lock-ups, police watch-houses, are probably the area where there’s a lot of media and political interest, but at this stage I don’t think there’s any agency that has a particular remit in that space.

Are police on board in this implementation of OPCAT? Are they buying into the discussion about it because they’ve always been a bit off limits, I think, for all of these investigations?---I have to say, in – sorry, in Western Australia that the police Commissioner, who is about to retire, Karl O’Callaghan has actually gone public and said we should be doing it. He actually wrote an article in the newspaper that said that he was disappointed that, following the Royal Commission into Aboriginal Deaths in Custody, there hadn’t been action in that space to actually get an inspector into police lock-ups. I think the police, in WA at least – well, the current leadership see value in it. Why do they see value in it? I think they – probably at a few levels. I think they would be looking to see if we can identify areas where they can improve their practice and reduce their risk.

Transport, for example?---Transport, for example. Or - - -

Have a bit to say about that?---Yeah. But also we had the death of Ms Dhu in custody in Hedland, which raised a whole series of systemic issues. But also I think the police are well aware of the poor conditions in which they sometimes hold


5

10

15

20

25

30

35

40

45

people, and it may well be that they believe that some independent assessment of that might even help them build their business cases for better and more appropriate facilities.

There’s – what – there’s three years to bring that about. But that will pass quite quickly, of course?---It will. Under the optional protocol, once a country has ratified – so Australia actually signed in 2009, I think it was, or ’8. So it has taken a long time before we have even announced that we intend to ratify. There’s a three year period, but then also you can apply for extensions to that. So my guess is that at the earliest we would be looking at 2020 for this system to be implemented across the country. And there is a lot of work to do because there’s a question around, for instance, do aged care facilities fall under this remit?

Well, at least insofar as their dementia units are concerned?---That’s right.

Perhaps not the others, because people can usually come and go, can’t they?---Yes.

COMMISSIONER GOODA: The last couple of days around old people’s home?--- .....

Push them in one direction, maybe?---Yeah. I made my mistake as I approached my 60th of watching Four Corners last night, and feeling thoroughly depressed about the future.

MR McAVOY: Your understanding of where the discussions are going nationally around the implementation of OPCAT – are you able to express with any degree of confidence how likely it will be that there will be a coordinating body in each jurisdiction?---I really don’t know at this stage, but I think that is the only workable model. One option is you might take certain areas that are currently not inspected and say that could become a responsibility of the Federal body. So if you took police lock-ups you could say, for instance, we establish a Federal agency that not only is the national preventive mechanism reporting to the UN but it also does a set of work. But I think the – my sense is the preference of the states and territories generally would be to have a devolved model. So the Federal NPM would have to be responsible for Federal places, such as any detention centres run by the military and facilities of that nature, but the rest - - -

COMMISSIONER WHITE: Well, yes, it raises some very interesting issues about other sorts of detention centres that are in the media a lot?---I know.

And it raises some constitutional issues, unless it’s something that is done by COAG, in agreement of course?---Yes.

There must be some other examples, of course, of federal countries which will have similar problems that have signed up to OPCAT .....?---There’s a number of – there’s a number of different models. In the UK, for instance, even though it’s not a federal system they have a number of different agencies that actually take different roles. I


5

10

15

20

25

30

35

40

45

don’t know the details of the German model, which is more of a federal system, but – and New Zealand - - -

Have you had a look at Canada?---I don’t – from memory, Canada has not ratified OPCAT.

Has it not?---But I would have to double-check that. New Zealand is probably the closest model for us, although they’re not, obviously, a federal system. Again, they have a devolved system where there’s different bodies reporting through their Ombudsman to the international committee.

MR McAVOY: So if one were designing an oversight model for the Northern Territory’s detention facilities, there would be aspects of the OPCAT monitoring requirements that one would take into account?---I believe so. I think the – there’s probably two developments going on in Australia, simultaneously but separately, and one of those is the OPCAT discussion. The other one is that, as I indicated earlier, there’s suddenly been this momentum for inspectorates, irrespective of OPCAT, that you see happening in Tasmania, New South Wales, ACT, Queensland.

If I can just interrupt you for a second, do you think that might be aligned to the growing privatisation of prison facilities?---I don’t know that it is a line to that, because I think actually the outsourcing is not increasing markedly across the whole country. There are some areas where there is more. I wonder whether it has more to do with the media that’s happened around places like Don Dale and others, where people are saying, “Look, we have got to get some independent eyes into these places.”

COMMISSIONER WHITE: In fact, I rather thought that the privatisation move has gone backwards. That there were a number of privately run prisons in Australia which are no longer privately run?---It’s a little bit of a churn. I mean, in an ideal – I’m not here to promote private sector involvement versus public, it’s a debate we could have until kingdom come, but the – if you are going to have a mixed economy for want of a better word, then ideally you do get into a situation where everything becomes contestable. So even though a privately owned prison may have worked well, you hope that the public sector gets up to the standard where it actually bid successfully against the private sector, and that is happening. It has happened in the UK for a number of years, and it’s starting to happen in Australia, and it varies again between different jurisdictions. Certainly in Western Australia we will probably see a winding back of outsourcing, whereas in New South Wales there seems to be a continuing development in that area. But the two developments I talked about, where you have the pressure for inspectorates which is coming independent of OPCAT, does raise some interesting questions as to how you might establish a Northern Territory model. Now, obviously the Northern Territory is small in terms of its number of people in custody and its number of custodial facilities. As I indicated earlier, Tasmania has gone with the option of placing its inspectorate within the Ombudsman’s office, but importantly they do have their own standalone legislation. Now, the importance of that to my mind is that, if you look at it putting it


5

10

15

20

25

30

35

40

45

in a different office that has already got a job to do, you’ve got to make sure that the job of inspection and reporting gets done and doesn’t get diluted by the other pressures. My own view is that if the Territory was to look at a model for inspection that it would actually be smart to kind of pre-empt OPCAT and say, “Well, what are the places that will need to be inspected?” And perhaps look at not only prisons, youth detention facilities, prisoner and youth transport – you’ve got similar issues to us, vast areas to transport people in – but also perhaps look at that question of whether there’s scope for a police inspection role. I’m also increasingly of the view that my own jurisdiction is too limited, in the sense that what I can do starts when people come into prison and stops when they leave the prison. I believe that there would be a very strong argument for having an inspector at that could look at corrections as a whole, and that could therefore understand some more about some of the drivers that are pushing people in and some of the reasons we fail to keep people – or people fail when they are released. So I guess what I would be looking at in an ideal world, with respect, in the Northern Territory, not knowing much about your system, is to look at something you might call an office of justice inspection and research, so that you can actually add a research capacity. New South Wales has a very good bureau, it’s called BOCSAR, Bureau of Crime and Statistics Research. You haven’t really got that in the Northern Territory, and we have not really got that in WA. So if I was sitting back looking at what’s missing in Western Australia and perhaps, with respect, what may be missing here, it would probably be that ability to take that holistic view, which is a very longwinded answer, my apologies, but does it answer your question?

MR McAVOY: No, that was very helpful. Thank you. It answered about three of my questions?---Good.

Going back now to what your office does, the – can you perhaps identify for the Commissioners what you see as the essential features of your office performing the function it does now? What makes it work?---Well, I suppose what makes it work is the structure and what I hope are the benefits. So, in terms of the structure, independence is absolutely critical. I think it is critical to credibility. We heard from Mike MacFarlane this morning about the West Kimberley Regional Prison. I think it was of great benefit to the West Kimberley prison that they were able to have an independent body that came in and actually agreed with everything that Mike said this morning. Otherwise all you are hearing is the official version of events. So it’s independence. It’s being public. We do report publicly, but we also do a lot of work which is a little bit more discreet with Ministers and Parliament and others. So I think it’s independence. It’s being public. It’s having credibility. And I think we’ve got a good track record of identifying risk and trying to bring about system improvement. To some extent, I think the benefits of the system are very simple: it’s just that somebody is going in very regularly. And I can tell a little story about how this sometimes manifests itself. I was at one prison once, and it’s a prison that – minimum security prison with a lot of long term sex offenders and life sentence prisoners. And we had a prisoner group, and they grumbled. They said, “Nothing ever happens, you guys come all the time and look at it, it’s still rubbish here, and everything else. All that ever happens is, when they know you’re coming, they


5

10

15

20

25

30

35

40

45

replace the furniture and they paint the walls and they clean the place.” And I said, “Well, haven’t we done our job then?” So at one level it’s very mundane: the fact that people go in tends to lead to some improvement. I think you can also see that we can play a role in terms of strategic advice to Government. And I think simply opening the window on closed places is a massive benefit. If I use the West Kimberley example again, I think it’s really important to have an office that praises good practice, as well as identifies areas for improvement. My difficulty with that is I can’t control the media. So the report we did on West Kimberley got probably zero media focus, whereas if I produce a report that’s got a picture of rat droppings you are guaranteed front page coverage, and that’s really the dilemma that you have. But the point is we want to represent good practice as well as poor practice.

Your position holds substantial statutory power as well, in terms of own volition reports, the offences provisions. How important are they – the statutory backup that you have in the legislation to the fulfilment of your role?---I think the fact that the legislation gives us strong powers, and also offers protections, is vital to us being able to do our work. And the fact that those powers and protections – what I mean by protections, I mean protections for people who engage with us, or talk to us, cannot be subject to harassment. The power to access premises, people and documents. The fact those powers are in legislation means I very rarely have to actually resort to them. That said, there have been occasions in the last two years in particular where I’ve had to start waving the statutory provisions around more openly to just remind people of what we are entitled to do. So I’m entitled to any document, essentially, relating to prisons or places of custody in my jurisdiction unless those documents are Cabinet-in-confidence. But sometimes you have to remind people of those rights.

COMMISSIONER WHITE: To encourage them?---Just encourage, gentle encouragement, yeah.

MR McAVOY: In the same vein, at paragraph 16 of your statement, you’ve set out the protections?---Yes.

Particularly at (a) to (d). Has the cause to prosecute anybody in respect of breaches of those provisions arisen? Or has anybody been prosecuted, perhaps, is a better question?---Nobody has been prosecuted. The occasional reminder has been necessary in the past, but essentially people now know what the rules are.

COMMISSIONER WHITE: Can I just go back a few paragraphs. You talk, of course, about the I was going to say, the gloom, the disappointment in a sense that your report into Banksia Hill came to fruition, because no attention was paid to it. I note there is a review into behaviour management at Banksia Hill due to be out next month. Is that a report of your office?---Yes. That’s a report which we will be actually tabling. We have a tabling date. That will be tabled on 17 July.

In which you will have an opportunity to say, “I told you so”?---I think my disappointment with the review that we did into the riot was that my advice to the


5

10

15

20

25

30

35

40

45

Minister in 2012 had not been followed, because I think it was obvious that there was high risk. The situation now is that we made significant progress, I think, over the period from 2013 through to 2015, but we have experienced some difficulties again in WA recently. Some of those you may have seen in the media. We have had some quite high profile incidents involving damage, and the Department of Corrective Services has actually deployed its special operations group, which is its most highly trained crisis management group, to try and put out those incidents. So we have not been immune from difficulty. The purpose of the report that’s tabled in July is to look at how effective the facility has been in terms of managing young people. I can’t really talk, at this stage, in any detail about the findings.

Of course not?---But what I can say is that I fear that too often we lose sight of the basics. And by the basics I mean, let’s be honest, I wasn’t very nice as a teenager and the only thing that probably made me reasonably nice on occasions was that I could run around and kick a football, and I would get tired, and I would be busy doing things. And I think sometimes we’ve lost sight of that in our youth justice facilities across the country. And that’s what I mean by the basics: trying to engage people who have been disengaged from education. Dysfunctional is a word that’s often used, but – you know, society has not reached out to a lot of young people. So I think we need to get back to basics at Banksia Hill and across probably the whole of Australia, but also to wrap that around with a philosophy based much more on a trauma-informed approach to dealing with youth.

Have you got any suggestions? I know this is probably leaping well ahead, Mr McAvoy, from where you are ongoing incrementally, but any suggestions as to how we can drive a faster response to this? It has been in the international literature for so long that this is an evidence-based way to go?---I wish I knew the answer to that. I think there’s a few things that probably stymie government a little bit. We touched on it this morning when Michael was giving evidence around West Kimberley, around – you asked about the cost and you said this looks like a very expensive place. It was an expensive place to build. It’s also an expensive place to run per capita. But what I would like governments to start doing is stop looking just at the upfront cost and look at the downstream savings because, if we can start to reduce the flow back in, there will be massive human savings in terms of human capital, but there will also be massive financial savings. So for us it’s costing $120,000 a year per adult in custody across the state in Western Australia. It’s costing about $300,000 a year for one child to be in custody for a year. So my view is why don’t we look at that investment and look at improving the downstream outcomes from that? And it may be that a prison like West Kimberley costs quite a lot up front, it costs a lot to run, but certainly the early indications were that their recidivism rates were lower, so they were going to be achieving the downstream savings, potentially. That’s a smarter way of looking at it.

Commissioner Gooda has a theory that if you train the young people in the detention centres, they will actually get jobs and then they will pay taxes?---That would be a great outcome. I think one of the issues is – you know, in terms of young people in custody for relatively short periods, but we certainly can do a lot more. For the


5

10

15

20

25

30

35

40

45

amount we are spending, we should be getting better outcomes, and if it needs a bit more investment – my point being if you need an extra 10 per cent on top of that to get the better outcomes, let’s do it, because right now we are spending an awful lot of money on people rolling back into the system.

MR McAVOY: In that regard, having some political certainty across election cycles is very important, you would agree?---Yes.

And having long-term agreements and long-term targets?---Yes.

It will also assist in providing the space necessary to do the work and see the outcomes?---I agree.

Just going back for a moment to the roles that your office performs, your office also has responsibility for managing the official visitor program or independent visitor program?---Yes.

How useful is that to you, in fulfilling your job, having that contact and communication with those independent visitors?---It’s extremely useful because the – under Western Australian legislation, the independent prison visitors are appointed by the Minister, but the scheme is administered by my office. Now, that means that essentially they go in with similar powers to my own staff. They perform a little bit more of an individual complaints role, but they again are very valuable eyes and ears, and they help me understand some of the things that are happening within the facilities. They also allow things to be resolved very quickly. So although we have talked a lot about the formality of reporting to Parliament and so on, there’s a lot that can be resolved without it ever getting escalated to that level, and I think that the fact that the independent visitors are managed through my office means, first of all, that I know for sure – and I report on this annually – that they go. I know what they do, so I can tell you our independent visitor scheme is functioning and functioning well. But it also helps me understand, as I say, those issues that might be bubbling along in a particular facility and I can report those directly to the Minister or, if appropriate, they form part of a parliamentary report.

COMMISSIONER WHITE: And just two things that I note from that paragraph, Professor Morgan. They’re volunteers, which means that they get paid expenses, I suppose, associated with doing their inspections but no honorarium at any point?---That’s correct, yes. Different jurisdictions have different models. My understanding is that New South Wales actually pays their independent visitors, and that scheme is now administered out of the New South Wales Inspector of Custodial Services, but that’s a different model from ours. We do find it difficult to get the right – we have got fantastic independent visitors, but we find it difficult to get enough younger people, and difficult to get enough Aboriginal people. So my key areas that I would like more independent visitors are – we have got a good gender balance, but they tend to be older people who have perhaps had professional careers and are now moving to that next stage of - - -


5

10

15

20

25

30

35

40

45

And I see that – although appointed by the Minister, it’s on the recommendation from your inspectorate?---That’s right.

So that if the Minister appointed someone you did not recommend, would that be the subject of comment by your office?---I’ve never known that to happen. I’ve known the Minister question us about a particular appointment, but it was a very valid question, because the person who wanted to be an independent visitor had a high political profile for a different party, and the Minister simply asked a question and I gave him the assurances, and that was absolutely fine. There was nothing inappropriate in that. But I’ve never known a Minister try to appoint somebody without it going through us.

And reports to you, not to the Minister?---They report to us, yes. Then what will happen is the independent visitors, at the end of their visit – a little bit like what we do, we have very regular liaison visits. We will debrief with the superintendent or staff on site, because the best outcome – as Mike would confirm this morning – is you get things sorted out. You just bring it to their attention, and most superintendents wants to deal with it. So you deal with it at the lowest level. The IVs – independent visitors will then send a report to us and we will decide whether there’s anything on that that we want to refer further on to the department for advice back. So there’s quite a formal process. Typically, the issues raised in independent visitor reports are very much what we also come across in our visits, which is the primary areas of concern relate to access to health services, including mental health, and property issues. So people’s property goes missing. Those are by far the most frequent areas of complaint.

I think the ones that we’ve heard largely relate to – this is for young people – the quality of the food and it’s certainly thought to be unlikely that young people, particularly young Aboriginal youth, would confide serious concerns in an official visitor who is effectively a stranger to them?---I think one of the – that’s a real challenge we have, and I’ve touched on it in my précis. The notion of individual complaints is not one that really works, in my view, with children, and commonly not with Aboriginal adults. I think what’s important about the way we go about things, and I’ve been encouraging the Ombudsman and others in Western Australia to do the same, is actually to go in proactively. Not in reaction to a particular complaint, but go in proactively and sit down and talk to people, and certainly in my experience what you sometimes get with some of the Aboriginal men and women is what I would call a deflection. So they won’t use the individual complaints mechanism, but they might talk to me about what they see as disrespect being shown to somebody else. So it can be very much along the lines of, “Can I have a talk to you?” “Yep.” And it will often be the young fellows saying, “These officers, they have no idea who he is. They don’t know he’s an important man and they’re treating him disrespectfully. And if they carry on treating him disrespectfully, I’m going to have to do something about it. So can you do anything?” And it’s that – that’s what I mean by the deflection. That elder will not tell me that himself, but I can hear it from other sources. So I think it’s – an important aspect of our role is going out and listening. I think another aspect to it is that we hear a lot from staff. So if I look at


5

10

15

20

25

30

35

40

45

some of the allegations that have come up around the treatment of young people in the Territory, (a) we would have heard about that from our own visits to those places or become aware of it. We would have heard from the children, probably. We would have heard from other staff. And that’s an important thing: we hear a lot from staff. If they’ve got concerns – most staff are professional, they’re trying to do the right thing – they will actually talk to us. And so I think it’s unlike most – well, I know it is most unlikely that abuse of that alleged nature could occur without us being aware of it. I can’t say that we prevent all abuse. We’re not there 24/7. But I think we reduce the risk of systemic abuse and systemic bad behaviour.

COMMISSIONER GOODA: Just going back to that comment about deflection, you would have to be fairly culturally competent to pick that stuff up, wouldn’t you?---You probably do, although I’ve got a funny view – perhaps it’s an unpopular view. I think it comes from your heart. It comes from how people are – excuse me – are as human beings, and I think sometimes we put people through cultural awareness training, but if it doesn’t change the heart it’s actually not going to get the end product. So I think it is – it is partly about being sensitive to that. And I’m very fortunate in my office that I’ve got a very strong Aboriginal voice who reminds me of the errors of my ways from time to time. And you know the person, Mick. So – but that gives me some degree of confidence that we are doing it reasonably well. There’s always ways to do it better. But the more time you spend in prison, if that’s the right way to put it – the longer I’ve been in prison, the more I think I’ve picked up on some of those nuances.

COMMISSIONER WHITE: Could I just go back to the official visitors for a moment. I take it they undergo some training in how to ask the probing questions and how to listen effectively?---We do our best. I mean, because it’s a volunteer program it’s probably fair to say we could possibly do more. We try to select – (a) we select the people with the right sort of background, so that we think they’ve got some competency in that area already, and we certainly do an induction program. And we also have our own staff go out with them initially to show them around, show them the way that we interact, and so we try to cover it off that way but I think the key thing is that it’s not just us doing an inspection every three years, and independent visitors, it’s us doing an inspection every three years, regular liaison visits to the prisons, and where they are at risk we will go very frequently. We seem to be ongoing to Banksia Hill every – probably every 10 days to a fortnight this year, and late last year, because the risks seem to have increased there. So I suppose it’s that constant presence that you hope the overall package is reasonably good. I still worry about whether we are reaching young people, and particularly Aboriginal young men and women, as well as we could. Mike made a very interesting observation this morning about the empowerment of people at West Kimberley. They look you in the eye and they engage with you. One area of real difficulty for me is engaging with children and young adults who are in prison in Perth, when they come from the Kimberley or the Pilbara, or from the Lands, because they’re socially isolated. They tend to cluster in a group to one side, and I will always make – and my team will always make the effort to go up and talk to them, but they don’t want to share very much. So that is probably the area that I struggle with most, as to whether


5

10

15

20

25

30

35

40

45

we really are reaching those groups as well as we could, but I have to say we are there, you know. And so we are probably the one state in Australia where you can guarantee that there is a regular presence of that nature.

MR McAVOY: Professor Morgan, we’ve heard evidence in the Commission in relation to the potential need or utility of an Aboriginal children’s commissioner. There is already a Children’s Commissioner in the Northern Territory. There’s also an Ombudsman?---Yes.

If there were an Inspector of Correctional Services as well in the Northern Territory, do you have any observations you can make as to how all of those functions might coexist and ensure that an efficient use of resources?---I think – I suppose what – starting from the starting point, the benefit of an inspectorate is probably you have got expertise in the corrections type area. It’s not to say other agencies don’t have that, but it’s an ongoing expertise. What we’ve done in Western Australia is we’ve really worked it out. Now, prior to the inspectorate being established, the Ombudsman in Western Australia did a number of reviews. Really, the Ombudsman now is responding to individual complaints from prisoners and from children in detention, not dealing with the systemic material. Over in Victoria, the auditor-general and the Ombudsman have both been very active but again they’re probably doing the sort of work that we would do in Western Australia. Now, you can’t rule out the Children’s Commissioner, say, in the Northern Territory wanting to do some work in that space. But we’ve really come to a modus operandi where the children’s commissioner in WA and the auditor-general have both done important work on prevention, diversion and community treatment, whereas we’ve done the custodial space. So I think that what you will find is, if it’s done intelligently, you will find that there is a national process whereby the custodial services or corrections inspector does a certain area and the other agencies do work which complements that. Good example of the benefit of the expertise, if I can put it that way, is that in around 2010 the Victorian auditor-general released a report on privately operated prisons. And the auditor-general, being the auditor-general, tells you how much everything costs and it cost $500,000 to do this particularly project. And it came up with two basic conclusions. Conclusion 1 is that the state didn’t know whether its assets were being press observed, because these were state assets, but – the prisons were state assets but being privately operated. So actually they didn’t know whether the condition of the prison was good. And, secondly, they didn’t know whether they were getting value for money. Now, what I would say is that, as an example of what we do, we can tell you those answers, and we tell you that every two to three years with our prisons, and it doesn’t cost $500,000 each time. So you bring in that expertise. The auditor-general in WA now doesn’t do that type of work, but we bring in staff from the auditor-general to work with us on occasions if we want to look at aspects of the contract management. So I think it comes down to a will on all sides to just not duplicate but to actually complement. Again, when we did the inspection of – sorry, the review into the Banksia Hill riot, the auditor-general issued a report on exactly the same day I issued mine, and that was based on my conversations with the auditor-general about certain aspects of the management of


5

10

15

20

25

30

35

40

45

the project to expand Banksia Hill. So he did his report into the project management and I did my report into the riot and its aftermath.

MR McAVOY: You’ve commented on the utility of having corrections experts working in the monitoring space. Are you saying that it’s necessary to have somebody with a corrections background coming from the department or – because that’s not where you came from, is it?---No. It’s not where I came from, no. I don’t think you – I think ideally you have some people who have got what I call operations experience, but you also want people who have legal backgrounds or general backgrounds in human behaviour. So I’ve got people who have backgrounds in law, psychological, criminology, and I’ve got three staff at present – ideally I would like more – I’ve got three staff who have had significant operational experience. But what I will do is also bring in experts from outside, if I need that additional grunt. So it’s not that they have to have corrections experience, but I think they have to have an interest and a commitment and an ongoing knowledge of the area. Put it – to take another example, the Economic Regulation Authority in Western Australia was asked three years ago to do a report into performance standards in Corrections. They actually had very little idea of what they were looking at, so we seconded people there to help them with that project because it’s a very discrete area that requires a level of experience and expertise.

But you would agree that, in terms of the public faith in the independence of the position, that appointment from the ranks of the department to the inspector’s position probably doesn’t achieve all it could?---Well, it probably doesn’t. I mean, so far they’ve had two professors of law and I’m not sure whether they’re the best qualified to do it, myself and my predecessor. I don’t see any professors of law waiting when I step down, but I think we – it shouldn’t necessarily be discounted that people come from the department or even from the private sector. If they’ve got the right experience and breadth of knowledge, then they should be appointable.

If I can just move to a different topic for a moment. You’ve undertaken some review of the management of young women - - -?---Yes.

- - - and girls at Banksia Hill Detention Centre. And at page 40, which will come up in a second, which follows on from page – the heading Concluding Observations on page 39, you make a number of observations about the conclusions that you can reach and the challenges that remain. Having conducted that review, do you have a view about how young women and girls ought to be detained in a setting where the numbers are very low and that creates difficulties in terms of the level of support that they might be given?---I think I will start the answer by saying I think young – I think women, certainly in Western Australia, the needs of women have been neglected in prison, and I think the needs of young women in particular have not been really acknowledged. We’ve had starts – fits and starts at doing it, but I think the – one of the problems is just very low numbers. So at any given time, although we have got a much – we have got about 150-ish young people in custody at any given time, and I think you have in the Territory around 60 – is that right? But we would – even out of that 150-ish we have probably only normally got between five


5

10

15

20

25

30

35

40

45

and 10 young women. And the difficulty is that we’ve got a one stop shop where we’re getting young girls from places like Kununurra, who can be as young as – legally as young as 10, they usually start the girls at about age 12 – alongside 18 year olds in from the southwest. Now, I don’t think that’s any way to manage children, let alone a small cohort of girls. I have floated the argument, with no great desire, but it’s reflective of necessity, that there is a case to be built for perhaps some of the older juvenile girls being managed alongside some of the younger adult women.

COMMISSIONER WHITE: Do you think that would be particularly true for Aboriginal girls rather than non-Indigenous, or do you think it doesn’t matter, what you have in mind?---I suspect it is particularly pertinent to Aboriginal young women, and I say that because unfortunately the vast majority of our detainees – female detainees are Aboriginal. So when I think – it’s very sad. When I think of children in custody, I think of Aboriginal kids. That’s the reality, unfortunately. But when I look at the young women aged 18 to 21 in the adult prisons in Western Australia, and I look at the 15 to 17 year olds in youth detention, I see young women who appear to me to have almost exactly the same needs. They’re just – technically, some are children and some are adults. Now, I’m very loath to waive that boundary, because children need to be treated differently, but when you’re looking at what those young women are coming from, and the challenges they face, many of them are young mothers, even at age 16. They’re coming from exactly the same cycle of offending and substance abuse as some of their older cohorts and, if we want to get a critical mass to deliver relevant programs, then I think we need to start just opening up that space and saying, “Would we be better off actually having facilities that cater for that older youth and younger adult group?” And particularly with the girls maybe – and young women, maybe running programs together.

It is a bit of a challenge though, isn’t it because of the United Nations - - -?--- ..... and that’s why I said I hesitated to recommend it. It’s my practical assessment of how we might get to better program delivery.

I am not disagreeing with what you’re saying. It may well be that a realisation that the developmental milestones for that later cohort, indeed up to 25 - - -?---Yes.

- - - might require just a different approach than traditionally the absolute separation between what are identified as children and adults?---Yeah. Yeah. And in some countries I believe they do actually have a different age range. I’m not sure what the current position in the UK is, but they used to look at a 16 to 21 cohort separate from the younger, and that was for both male and female. So, as I say, you say it with hesitation, but you say in recognition of the fact that it is with the best will in the world it is really, really hard for a corrections department to deliver a suite of programs to short-stay four or five children at any given time.

MR McAVOY: Do you have a view, then, as to the effectiveness of the West Kimberley model where you have women and men detained in the same facility and whether that might be appropriate for juvenile facilities?---Well, we do keep our boys and girls together in Western Australia. If I start with the West Kimberley, the


5

10

15

20

25

30

35

40

45

real strength was the picture that you showed, which came out of one of our reports, and it’s a picture I show quite often because I think it tells you the story of the West Kimberley prison. Now, they’ve got a very smart and appropriate way of managing men and women together, which is not to deny them access to each other but to manage their interactions. In the youth space, that can be very challenging because, let’s face it, I was pretty feral as a 15 year old, and some of the boys in there and the girls, their interactions need to be managed very carefully. But what we probably need to do is to build on those lessons from the Kimberley prison, both in the sense of how we intelligently manage male and female together, but also I left the West Kimberley prison after my first inspection there on a high because of what was being achieved there. And one of the things that stays in my memory very well was the empowerment of young men and women in that facility. So if you will forgive me the story, but it tells a lot. We went into one of the houses one afternoon and it was really quiet. I’ve been in lots of prisons. Usually they’re noisy, aggressive, loud places where people are shouting and interacting. It was very quiet, and I thought there was nobody there. But I could – there was food cooking, and then I went up to one of the rooms with a colleague and we knocked on the door and a young man answered the door and he looked us in the eye and he talked to us about what he was doing. He was responsible that evening for the cooking. He was also sitting at his desk. We have now got to the stage of doubling up most of our cells for adults, but he had a single cell to himself. He was teaching himself to read. And so what you had got – and he was very proud of what he was doing. He was on a basic literacy course. He was working. He was cooking. That type of empowerment that I saw – and he was a young man probably of 20 years of age – I’ve never seen that in youth justice facilities that I’ve visited in Australia. So there is something in the Kimberley story that actually, even though it’s a big prison and it’s a different place, there’s something about the empowerment of those young people and the trust that was reposed in them that actually I think was leading me to feel very positive. Of course, they’re going back to a very challenging situation when they get released. But what I would say is that the prison was, I think, doing the best it could have done in terms of actually preparing those people for life outside. So I use that example when I talk to people in youth justice saying there is stuff you can learn from the adult system.

You would have also have heard Mr MacFarlane talk about the target of 50 per cent of Aboriginal to non-Aboriginal staffing ratio and the actual ratio being about 20 per cent?---Yeah.

You’ve conducted a review into staffing in Correctional services - - -?---Yep.

- - - in Western Australia. And what’s your view about the benefits and need for Aboriginal staff within the Correctional institutions?---I think there’s a huge need. I mean, you can see it in the facilities, sometimes, where many, many times, for instance, at Banksia Hill, I’ve seen the way the Aboriginal staff who work there interact with the young people and can actually diffuse situations. I’m talking about interacting not only with Aboriginal youth but non-Aboriginal youth as well. But I think it is important. It’s important – you know, we’ve got 75 to 80 per cent of our children in detention are Aboriginal, but a much lower proportion of workers. It’s


5

10

15

20

25

30

35

40

45

very hard to recruit people to work in Corrections. Aboriginal people need to speak for themselves on this, but my sense is that Aboriginal people see corrections as part of the problem, not the solution, and so why would they want to work there? And it’s part of that history of dispossession and being taken away. But what I think we’re starting to see is a bit more recruitment going on. I would like to see Aboriginal people not just in what you think of as the custodial officer position but in every aspect of a prison. So you can recruit people to work in the management side. You can recruit people to work at the front desk to receive people when they arrive. And those are probably the simple fixes. It’s harder to get people to work as custodial staff where they’re pulled into that immediate engagement. But there’s absolutely no doubt in my mind that the benefits are huge. We probably have to get a bit more flexible in some of our processes. The unfortunate reality is that it’s one of those paradoxes in corrections: corrections work hard to try to get the private sector to employ people after they’re released from prison or from juvenile detention. But does the public sector do it? Rhetorical question. The answer is no. The public sector doesn’t work terribly hard at actually giving people jobs. It expects the private sector, expects the Rio Tintos to do it. But do we take on ex-prisoners and ex-detainees in public sector positions. Not very often. And I think there’s a whole debate to be had there about opening up those opportunities for people.

I might just take you back to the discussion about the Banksia Hill riot for a moment. There is a number of stages to that story. There’s the review that was conducted by your office?---Yes.

There’s the event. And then there was a directed review from the Minister, directed inquiry?---The review that we published was the directed review - - -

The directed inquiry?--- - - - and that was published along with a number of background papers as well.

Can you just explain how the directed review came about?---If I go back to the legislation first up. I mean, I’m an independent officer. I report to Parliament, not to the Minister. But, clearly, it’s important, if you want things done, to actually have a smart relationship with Ministers as well. Under the Act, the Minister can direct me to undertake reviews or any piece of work. I am obliged to do that unless I decide otherwise and publish reasons and explain why I’m not going to do it. The Banksia Hill riot occurred on a Sunday evening. On the Monday morning, the Minister’s office was very quickly in touch with me and we talked about some of the options. And I basically said that I was intending to do an investigation of some sort anyway. The Minister’s office, very quickly, knowing the provisions of the Act, said that they were interested in making it a directed review. And I would say that was quite a bold move for the then Minister, because he knew that I had been sounding alarm bells about the centre earlier in my advice to him. By the Thursday that week, we had agreed the terms of reference and I had agreed to undertake the review. I was very happy with the terms of reference because they not only allowed me to look at the causes of the riot but also at the management of the young people afterwards where they had been transfer today what had previously been an adult prison and was then


5

10

15

20

25

30

35

40

45

gazetted as a youth custodial facility, and also at some more systemic issues. So it was a process of negotiation. Directed reviews in WA are not that common. That’s the only one I’ve had from a Minister. My predecessor, Richard Harding had, from memory, at least two directed reviews, but they’re not a power that’s used frequently.

But clearly, there’s some – there will be some occasions where it might be of particular use to a Minister to be seen to be taking action directly and swiftly?---Yes.

And are you of the view that’s what occurred in respect of the Banksia Hill?---I’m sure that was part of it. I know that the Minister himself also was genuinely wanting to get to the bottom of what happened. So there was a genuineness to it. But it also allowed him to be seen to be publicly taking action. The other benefit, if you like, at the time was that we were moving into an election campaign. So it allowed the issue to be – which I think is a very positive outcome; I’m not suggesting it was cynical. To me it was actually very positive that there could be a review announced and we could get this out of the media – sorry, out of the political domain for the next three months while I was doing my report, and trying to actually improve the system rather than it getting swamped by what were ultimately going to be rather pointless political debates.

You’ve made some observation at paragraph 65 of your statement about the need for the use of technologies like Skype. Is that an often used facility in Western Australia, given the size of the Territory that’s covered?---No. It’s not used anything like enough. I would say two things. First of all, we must never let technology take the place of human contact. I was actually appalled some years ago when I gave evidence to a Senate inquiry on the impact of mandatory sentencing, and the then Department of Justice told the senators how good it was when you could see these young people in detention in Perth interacting with their families by video link, and I actually thought that was appalling, because young people deserve to be able to touch their family. So it should never be a substitute for family contact, but it should be a supplement. We don’t do it anything like enough in Western Australia, given the size of the state, and I mean that both with respect to children and with respect to adults.

And, indeed, you’ve identified already the extent of isolation that people from remote areas of Western Australia can feel in the metropolitan prisons and that’s something you observed?---It’s a big issue. We – it’s very interesting. In Western Australia, we have accepted the proposition, and we can’t always meet it, but we’ve accepted the proposition that adults need to be kept in country. It’s why we set up the West Kimberley Regional Prison. Somehow we haven’t translated that to children. So we seem to think we can have a one-stop-shop for children in Perth. That seems to me to be wrong. We also have the situation where we have – Banksia Hill is basically a maximum security facility for children. What we have with adults is we have lots of minimum security facilities and work camps and lots of other options, and yet, with children, and I suspect you’re a bit similar in the Territory, you don’t seem to have that diversity. What I would say and I have said in my submission to you is that I think one thing that you’ve got right in the Territory, far


5

10

15

20

25

30

35

40

45

from perfect of course, is at least the concept of having more than one youth detention facility. So at least you’ve got one in Alice Springs and you’ve got one in Darwin. I would be personally recommending against the idea of a one-stop-shop. It’s not worked in Western Australia and I wouldn’t commend it to anybody.

As you may be aware, much of the juvenile population in detention in the Northern Territory is comprised of remand detainees?---Yes.

That creates a particular issue in terms of management?---Yes.

Support services and other facilities that can be provided. That’s a similar problem in Western Australia?---It is similar. I understand Judge Reynolds is giving evidence to the Commission shortly. One of the most interesting things after the Banksia Hill riot was at the time of the riot in January 2013 we had around 210 young people in custody. Thanks to – and a lot of them were on remand and the number of remand detainees was higher than the number of sentenced. Judge Reynolds has taken a very strong lead in trying to reduce the number of children in custody and particularly the number on remand. Our numbers are now down at about 150, which is really interesting to have a reduction of 25 per cent in the numbers of kids in detention at a time when the adult prisoner population is going up very quickly; is something that I recommend you ask Judge Reynolds about. But what he has also managed to do is reduce the number of children on remand. So my – I would have to reconfirm this but I think we are now more at a fifty-fifty level, whereas previously there were more on remand than sentenced.

COMMISSIONER WHITE: I think the disparity is much greater than that in the Northern Territory. The sentenced young people is a very, very small number?---Very small number, yes. I mean we do find that, and we find that once the young people have been on remand, say, for six months, a lot of them then are getting out pretty soon after they appear in court. One phenomenon we do have in Western Australia and you may have here as well is we have got a number of young people serving really long sentences.

In Western Australia, is there a maximum limit for young people, that is, who aren’t sentenced as adults, lower than the maximum for adults?---No. The same maximum penalty applies.

I think there are some jurisdictions where it is much lower, seven years in Queensland, I know is the maximum for whatever it is?---Okay. Again, it may be worth talking to Judge Reynolds. For instance, just yesterday I read a report of a young man who had just received, I think it was eight years’ detention in Western Australia for a high speed chase in a car. Which is a long sentence, very long sentence, by our standards. But certainly involved a very high degree of culpability on the part of that young man.

MR McAVOY: Do I take it from your earlier comments about the – your view that your role could be extended to take in justice issues as well as correctional issues that


5

10

15

20

25

30

35

40

45

you find the distinction between what happens and it results in incarceration and the incarceration itself a bit arbitrary?---It is. For instance, we’ve looked at – we do not only our inspections of sites but we undertake quite a lot of thematic reviews these days as well, and one that we looked at was remand prisoners. But my jurisdiction was really constrained and really I couldn’t go much beyond looking at the numbers of people in prisoners for remand, how long they were kept there – this was adult prisoners. What would have been really interesting, and certainly for me intellectually and given my background, what I really wanted to look at was what were the drivers of increased remand number rather than the numbers and the length of stay. So it’s quite if frustrating. Another report we did was on reconviction rates, recidivism rates. And, again, it’s very hard for us to get into that space of saying what is it that’s working or not working in reducing recidivism after people are released. So you can come up with rates and you can look at rates of outcomes from different prisons and a whole series of risk factors, but, yeah, frankly it’s very frustrating not to be able to go to that next stage and perhaps ideally give government independent policy advice on those sorts of areas.

COMMISSIONER WHITE: Professor Morgan, do you see this as an important adjunct of the inspectorate role to engage in essentially, perhaps, research and a wider remit than just the inspection of places where people are held securely?---Put it this way, if I was Parliament for a day in Western Australia, I would extend my powers, yes, in the sense of – because I think it offers more value for money. But having said that, I don’t, in any way, suggest we’re not doing a valuable role. I think we do what – we do a really valuable role in prevention but also in holding the system to account when things go wrong in terms of the custodial space. But I just feel there’s a kind of other piece of work. I’m interested, for instance, in how much of the prison population is driven by practices around the enforcement of parole or non-custodial sentences. There’s a really interesting question. But it’s not one that I can really go into, given my legislative remit.

COMMISSIONER GOODA: But it’s like you say in 42, the fact that you exist, the best benefits of it - - -?---Yes. I think you can never underestimate that.

- - - the oversight and the – yeah. Well, you know, we’ve seen up here where there’s basically no oversight and we know that means on those occasions. So the fact that you’re there and, as you know, I’ve had a long relationship with the inspector’s office?---Yes.

There’s nothing like it in the rest of Australia, really?---No. I think we – look, I think we – I believe we do a really good job and a really important job. I nearly didn’t take the job, which may sound a bit odd, but I nearly didn’t take it because Mr Ward died. And it’s very difficult to kind of intellectually get your head around how somebody could die in those circumstances in the 20th century, or 21st century.

Especially after - - -?---After the warnings had been sounded by my predecessor, Richard Harding. So I thought long and hard, do I want the job, do I not want the job? And it was almost my first few months in office were absorbed by the coronial


5

10

15

20

25

30

35

40

45

inquest into Mr Ward’s death. But I did decide to take the job, because I thought, no, there’s two aspects to this: one is you try to prevent, and that’s the ideal, but when something goes wrong, you’ve also got a vital public role and accountability role to play in actually holding the system accountable. Because what happened in Mr Ward’s death is that because of the work of the previous inspector, first of all, the Coroner was able to look at the evidence that pointed to a whole system of failure, not – it wasn’t just about the drivers of that truck on that particular day, but there was a whole set of systemic failings and I think it’s fair to say that that was a really good example again of why you have an inspectorate. Again, thank goodness the outcomes were not tragic, but the Banksia Hill riot of 2013 is probably again an example. We were not listened to. But – and that in one sense is disappointing but the system was held accountable and – for what happened – and improvements were put in place afterwards.

COMMISSIONER WHITE: Is the term of the appointment five years?---It is five years. I was appointed in 2009 and then I got a renewal for another five years. So I’m currently, my contract runs out in 2013.

Two thousand and?---19. I can’t count, can I?

A long afternoon.

MR McAVOY: I have just one more area to ask you questions about, Professor Morgan. That’s in relation to access to funerals and for compassionate leave?---Yes.

As you would be aware, in the Northern Territory, as in many parts of Western Australia, attendance at community ceremonial business, law business events is very important. Do your observations – do you have any observations that you can make about the importance of ensuring that prisoners, Aboriginal prisoners get leave to attend those ceremonial events?---I think you’ve summarised it. It is vital. It’s not – and it’s not optional. We know that culturally even if a person is incarcerated, and I learnt this through many consultations in – with communities as part of an Aboriginal customary law project. If people don’t attend a significant event or funeral then it may be taken out on their families. We heard stories out in places like Warburton of where, even though a person is incarcerated, if he doesn’t turn up or she doesn’t turn up for the funeral, the family may have to pay a price until he comes back. It’s not my – I don’t understand and really the limits of some of those issues, but it’s non-negotiable culturally. There are two things that should happen. First of all, we’ve got to get people to significant events like funerals. And we’ve got to start understanding Aboriginal culture a bit better. We have been through a series of iterations of policy in Western Australia, one of which degenerated almost into a cost process, which meant that of course Aboriginal people were counted out because they had longer to travel. So that was inherently discriminatory. We’ve slightly relaxed some of those on paper but we’re still getting people knocked back on logistical grounds. We are also getting the situation where I don’t think we begin to give proper recognition to kinship. And there is very much a focus on blood relation. You know, “Is it your blood mother?” without recognising who may have brought up


5

10

15

20

25

30

35

40

45

the children or grandchildren when it’s a case of going to funerals. So we have got to get it better on that, but I think we have also got to get better at saying, “Okay. The bottom line is we can’t get everybody to funerals. It won’t happen, so what do we do within the custodial facilities?” And there have been one or two innovations. Again, they don’t displace attendance, but they should supplement attendance where you use technology. So our privately prison, Acacia, on one occasion actually Skyped a funeral into the prison with the permission of the family. And there were about 35 or 40 men there in the gym, and you could have heard a pin drop. And they turned, as the casket came in. So there’s ways that you can actually do things in a respectful way for those prisoners to grieve, as I say, but it must be a supplement to attendance for those people who really should – are obliged and need to go. So I think we can do both of those things and we can probably do both of them better. I don’t know the situation in the Territory, but certainly we need to do better in Western Australia.

Your observations about attendance at that type of event as being critical and non-negotiable, that observation supports the need for more localised on country facilities where the logistics don’t come into play, does it?---That’s true. And again, probably some flexibility around the arrangements. So we’ve got – in Western Australia we have outsourced our prisoner transport, and I won’t get into the full details of it, but of course it’s going to be expensive for a private contractor based in Broome to run a funeral escort out of West Kimberley to one of the local communities. But what didn’t – hasn’t happened enough is actually saying, well, why doesn’t the local prison do it? And we’ve also got into, in my view, too much risk aversion around the level to which we need to handcuff and restrain people at funerals. I’ve never heard of any event at a funeral involving disorder by the prisoner. You’ve got to vet the family relationship issues and you’ve got to be confident about that, but there’s ways to do that and out in the west Kimberley they were well capable of that, but they were not able to undertake the number of funerals that they should have done.

Thank you. Thank you, Commissioners. That concludes the questions I have for this witness.

MR O’MAHONEY: Commissioners, I appreciate this is unannounced but would I please have leave to ask just a very small number of questions of a clarifying nature of this witness?

MR McAVOY: I don’t know what they are, but I don’t have any particular objection, Commissioners. An objection may arise.

COMMISSIONER WHITE: We do like some notice, you know, Mr O’Mahoney.

MR O’MAHONEY: I appreciate that.

COMMISSIONER WHITE: But in the circumstances, yes, of course you have leave.


5

10

15

20

25

30

35

40

45

<CROSS-EXAMINATION BY MR O’MAHONEY [3.32 pm]

MR O’MAHONEY: I am grateful, Commissioner.

Professor, you mentioned earlier in relation to the West Kimberley facility that on the topic of recidivism that the early signs are good. Would you mind fleshing out that observation for us?---Well, I can’t flesh it out in terms of the actual facts and figures off the top of my head but we issued a report on recidivism rates, which was, from memory, in 2014, and what we tried to do in that report was to look at outcomes by different prisons. And that becomes quite a sophisticated piece of work because you actually have to look at the risk profile of the people being released. So obviously if they are low risk people you would get a low recidivism rate. But the West Kimberley prison appeared to be at that stage to be doing well, but it was very early days. The Department of Corrective Services’ own data, which I had seen subsequently, which is not public, it also indicated that outcome. So I can provide – or undertake to the Commission, if you are interested, to see what more concrete data is available.

COMMISSIONER WHITE: Thank you. If you can do that?---But off the top of my head I don’t have to hand, I’m afraid.

MR O’MAHONEY: Thank you, Professor. One other question. Well, there’s two others, but I’m mindful in asking this one of what you said earlier that when we are talking about this space we can’t necessarily measure costs in terms of dollars and cents?---Mmm.

You said not only was the West Kimberley facility expensive to build but it was expensive to operate, and you articulated the spread between the cost of an adult detainee in WA and the cost of a young detainee. Have you got any idea of the additional cost of a facility like West Kimberley either in dollar or percentage terms above, I guess, the more traditional corrective model that you see more generally in WA?---Comparisons are really hard. So I’m not not answering your question; I’m just – comparisons are really difficult because no – prisons are all actually quite different. The average cost per prisoner per day in Western Australia is very high but it’s actually kept down by virtue of the fact that a quarter of our prisoners are in one very large privately operated prison where the cost per prisoner per day is much lower, and that’s not to say the private sector is necessarily more efficient, but it’s just it’s a Perth based facility, it’s big, it’s modern, it has got economies of scale. Whereas Kimberley was always going to be more expensive because of the additional costs of housing and the relatively small population. Whilst I can’t give you the exact figure, what I can point you to is a report by the economic regulation authority of Western Australia which was, from memory, released in 2015, and they actually have a breakdown according to each prison. It’s obvious that the regional prisons and the smaller prisons are going to cost more.

.ROYAL COMMISSION 27.6.17 P-5142 N.A. MORGAN XXN©Commonwealth of Australia MR O’MAHONEY

5

10

15

20

25

30

35

40

45

Certainly. And I think Mr MacFarlane gave evidence earlier that he understood the cost – the establishment cost, if you like, was approximately a million dollars a bed, which I think would come in close to 150 million dollars. Is that – does that roughly accord you’re your understanding?---That would accord with my recollection. Again, I would have to chase up on the precise information, but I think it was roughly a million dollars a bed.

He also mentioned, and I think he referred to it as a sister prison in Kununurra that hasn’t got off the ground, and I was wondering if you could educate us on that. Is that still on the drawing board? Has that been put to one side? If so, do you know why it has been?---One of my recorded frustrations over the years has been the lack of a clear plan for the Kimberley. So when West Kimberley Regional Prison was established the Department of Corrective Services really need to have a proper plan for the whole Kimberley, because the court is not in Derby. The courts are basically in Kununurra or Broome. So it was obvious that you needed facilities that were going to service the courts. We have just had a recent case where a case involving a child on trial in Kununurra had to be aborted because everybody knew it was going to be a lengthy trial. The young person was being held in the police lock-up, and then the judge aborted the trial so that the young man could go back to Perth into youth detention because of the trauma of having been in the police lock-up. And you’re just thinking this is clearly a system that isn’t functioning as well as it should be. So what we need is we need a facility in Broome to service the court. We need a facility in Kununurra. We have got – whilst we haven’t got a prison in Kununurra, we do have what’s called a work camp in Wyndham which is a couple of hours drive from Kununurra. What is happening at the moment in Western Australia under the new government is that we are starting to looking at all of our underused facilities like that work camp, and I think there will be some conversation about whether that changes function and maybe becomes a place for either short-term remands or for sentenced prisoners.

Thank you, Professor. Thank you, Commissioners.

MR McAVOY: I have nothing arising, Commissioners, and perhaps the witness can be released.

COMMISSIONER GOODA: Fine, thanks.

COMMISSIONER WHITE: Thank you very much indeed, Professor Morgan. We are most appreciative that you have taken the trouble to come all the way to Darwin to speak to us about that experience and, of course, it is something that’s very live, it was something raised in Mr Hamburger’s evidence, no doubt based upon your model in the West, and you’ve had a long-term period to see how well it works. And so that will be a really useful thing for us to have a look at?---Thank you very much. Thank you.


.ROYAL COMMISSION 27.6.17 P-5143 N.A. MORGAN XXN©Commonwealth of Australia MR O’MAHONEY

5

10

15

20

25

30

35

40

45


COMMISSIONER WHITE: Thanks, Mr McAvoy. Shall we take an adjournment until we link up to Scotland?

MR McAVOY: There is the opportunity to have a further personal story before we link to Scotland. I’m told it can be done in the time that we have available, but I’m in your hands, Commissioners.

COMMISSIONER WHITE: Alright. What about if we take a five-minute break before we do that. How long is the personal story, Mr Goodwin, are you able to tell us?

MR McAVOY: We may be able to do that, Commissioners. Perhaps if we – yes – no. We won’t be able to do that, Commissioners. Either we play it now or we – without a break, or we play it perhaps after.

COMMISSIONER WHITE: We will do it now then, shall we?

COMMISSIONER GOODA: I’m just trying to work out what the problem is.

COMMISSIONER WHITE: Yes. What is the problem? Does it go for 25 minutes?

MR McAVOY: It goes for 20 minutes, Commissioners. And then - - -

COMMISSIONER WHITE: Was it to be factored into any other part of our program today? I don’t think so, was it?

COMMISSIONER GOODA: It wasn’t.

MR McAVOY: No. My view, Commissioners, is that we not do it at this point, we take a short break, and we come back.

COMMISSIONER WHITE: Yes. You probably do need to get ready for Mr Bell, don’t you.

MR McAVOY: That’s correct.

COMMISSIONER WHITE: And that might be a bit of a scramble, and that wouldn’t be very polite at all. Alright. We will break, then, for 15 minutes until Scotland is on the line.

MR McAVOY: Thank you, Commissioners.

COMMISSIONER WHITE: Thank you. And, again, thanks again, Professor Morgan.


5

10

15

20

25

30

35

40

45

ADJOURNED [3.40 pm]

RESUMED [4.02 pm]

COMMISSIONER WHITE: Mr Goodwin.

MR GOODWIN: Commissioners, by invitation we have Mr Graham Bell from Glasgow, Scotland, on the video link with us.

<GRAHAM BELL, CALLED [4.03 pm]

<EXAMINATION-IN-CHIEF BY MR GOODWIN

COMMISSIONER WHITE: Thank you. For us, it’s good afternoon, Mr Bell. Commissioner Gooda and myself are here in Darwin and we’re very grateful that you’ve responded to our invitation to give us some advice in our Royal Commission?---Good morning, and good afternoon to you.

It is morning where you are, is it, Mr Bell?---It is. Yes.

Thank you, Mr Goodwin.

MR GOODWIN: Could you please tell the Commissioners your full name. Mr Bell, can you hear me?---Good morning. Sorry, yes. Graham Bell.

And you’ve provided to the Royal Commission a report on the Kibble Education and Care Centre, and included in that report is your curriculum vitae; that’s correct?---That is correct.

Thank you. I tender that report.

COMMISSIONER WHITE: That report is exhibit 609.

EXHIBIT #609 REPORT ON THE KIBBLE EDUCATION AND CARE CENTRE WITH CURRICULUM VITAE ATTACHED

MR GOODWIN: Mr Bell, during my questions, I will refer to the organisation as Kibble. You are the associate executive director of Kibble; that’s right?---That’s correct.

.ROYAL COMMISSION 27.6.17 P-5145 G. BELL XN©Commonwealth of Australia MR GOODWIN

5

10

15

20

25

30

35

40

45

And you were previously the CEO of Kibble?---I was, yes, for 24 years.

And you’ve worked at Kibble since 1993; that’s right?---That is correct.

And your background: you’ve got a long background in social work?---Yes, I am a qualified social worker but specialised in residential care for children and young people.

Can I ask a simple question at the start, which, no doubt, has a lot of information to it. What exactly is Kibble?---Yes. Kibble is a charitable trust established by a bequest that was made in 1840. The bequest was to fund and endow an institution for the reclamation of youthful offenders against the laws. A very old reforming centre set up to take children and young people out of prison in the Victorian age. We actually, today, very much continued to stick to our mission but modernised it extensively and today it is a multi-service centre for children and young people at risk.

And the report states that Kibble provides an integrated array of support services for children and young people. And perhaps I can show the services map for Kibble on the screen, as I ask this question. What type of services does Kibble provide? We’re just putting up the right – the right document should be showing now?---Thank you. Yes. So there are residential services, based on a compass and satellite model. And these residential services include a high security facility and a range of specialist residential services. They also include the day provision, full residential provision and vocational training and foster care, and associated support services.

What is the typical profile of a young person that Kibble works with?---Yes. The external and common perspective is that these are teenagers who are being difficult and got into trouble with the law. In fact, their background is much more complex, usually. And the average age of our youngster is around 14 and a half, but for most of them they’ve actually been known to the welfare services for around seven years. And so what you have is a profile of children and young people with long history of usually unsuccessful state intervention, and these young people have usually experienced multiple placement breakdown, multiple family disruption, and usually trauma.

So it would be fair to say in those circumstances that Kibble is dealing with young people and children who are exhibiting, or who are the most difficult cases for the welfare system to deal with?---It is. Yes. And also, just for clarification, no child under 16 in Scotland would be admitted to any prison establishment and increasingly that is moving to 18. There is an attempt to make sure that no young person under 18 is admitted to any prison establishment. So we really operate at the intersection of child welfare, youth justice, and adolescent mental health services, as obviously many of these young people have significant mental health issues. In that – to that extent, we are a – the placement of last resort.


5

10

15

20

25

30

35

40

45

COMMISSIONER WHITE: But nonetheless, Mr Bell, I discern that some of your facilities are secure facilities; is that correct?---That is correct. We operate a – three six-bedded house high security facilities and these are at the extreme end of our service array.

Thank you.

MR GOODWIN: Yes, and I will ask some questions directly about those secure facilities in a moment. Before discussing that directly, could you explain what the basic philosophy in approach, in the approach of Kibble to working with young people who access its services is?---Yes. Our philosophy is one of the least possible restrictive intervention for as limited a period as possible.

And all of the services that Kibble provides is at one location on a campus model, and perhaps we can show the campus map on screen?---Okay.

Could you explain the nature of the campus model at Kibble and the benefits that flow from having all services collocated?---Yes. Just for clarification, we also have satellite activities. So we have vocational training services offsite and some residential and a lot of community support services offsite, as well as our children’s home for primary principle activity operates from this campus, which is immediately – just to give you some context for the location as well, it is immediately adjacent to the main motorway into Glasgow city centre and opposite Glasgow international airport with houses surrounding it. So it’s a very urban, built-up environment where, as you can see from the map ..... leisure and recreation space as well, built into the campus. The philosophy behind devising a campus with multi-services was that our research and ..... of young people began to build a picture of young people with many failed previous placements and many difficulty life experiences. Now, there is a significant adverse psychological effect on young people on constant movement. Young people who are moved – and this applies in any jurisdiction – young people who are moved around a system, frequently because of difficult behaviour, but young people like that, their problems are often compounded; particularly the behavioural and relationship problems are compounded. We felt that if we could develop a model that would allow for a range of interventions, using a common location and where possible the same staff, we could provide a continuity of care that would begin to at least address some of the disruptive ..... of most of the youngsters in fact have. So this campus allows us to – at one end, we can ..... a young person in a secure environment but we try an alternative first if the legislation permits, a young person would be put in a less restrictive environment. And then if – only if that was unsuccessful ..... then the youngster, after a period of stability. And the average length of stay in our secure unit is four and a half months. So we do try to minimise the time they’re locked up and then we transition to one of the other on-campus facilities. We would always – sorry. We would also have, with appropriate staff, the key worker staff model. We use – we would have staff sometimes transitioning with the young person as well.


5

10

15

20

25

30

35

40

45

And can I break that down into two issues. First I will ask some questions about the secure facilities, and then, second, about your staffing model, because I think those are two important parts of the Kibble story. Turning to the secure care facilities that Kibble run, you mentioned that Scotland doesn’t have a prison service for children. That – my understanding is that that change came in 1996 in Scotland. What led to that change in Scotland?---There were a number of factors and this was a process of change as opposed to a single event in terms of changing actually over the institutions. There had been ..... facilities that were there for children and young people concerned that young people were spending inordinate amounts of time locked up in single cell arrangements. ..... these programs were focused on containment rather than rehabilitation and that they were predicated on punishment model, when, in fact, the Scottish welfare system ..... our legislation and for some years had been saying that a child’s situation is assessed on what they did as opposed to how they should be contained. And the practice took some years to catch up with the actual legislation. But that’s a frequent problem in most jurisdictions. The law is made, but in fact the implementation and the full spirit of the law takes some years to be put into actual practice.

And so who runs secure facilities in Scotland?---Sure. There are at the moment 78 beds in – secure beds in Scotland so far, a country with a population of five million. We have 78 beds for children and young people, run in across four different establishments: one small six-bed unit, which is run by local government and three other units run by independent charitable trusts – sorry, three other – yes – Kibble plus three others run by charitable trusts.

And so you said that only – there are only 74 beds out of a population of five million. Are they often at capacity?---Well, there have been – the short answer to your question is, in fact, no. As we have developed alternatives, there has in fact been capacity for a number of the establishments and they are currently accommodating young people from England and because of significant turmoil in the English youth justice and child welfare system, and there is an acute shortage of places in England. So, for example, our location makes us closer to some parts of England than might be – than they may have available facilities. So we are providing for young people in England. At the moment in our secure unit we have four children from England.

And you mentioned that there are alternatives available to keep those numbers low. What do you mean by alternatives?---So the government, the Scottish government operates an extensive range of a community preventive programs, but these are based on models of early intervention which are rolled out across the system. And I would want to highlight that the Kibble model is only possible where you have a national system where the focus is on early intervention and prevention that starts at very early years.

And so Kibble operates what it terms a safe centre, which is an 18-person facility made up of three units of six people. Could you please describe the architectural design of the centre?---Yes. This probably was the trickiest challenge for us in design. We had to – we wanted to design a secure unit that could be topped into our


5

10

15

20

25

30

35

40

45

extensive campus but it had to comply with high security and construction regulations. So I have to say that we have not been as aesthetically successful as that as we would have liked. But we do run – each youngster has an individual – a room that is locked, but we try to make these as domestic as possible. They are all ensuite and ..... a common living area. There is a common sports – sorry. There is a common external sports area, internal sports fitness and swimming pool, and each unit has an internal secure garden area. So ..... there’s a secure unit but with, where possible, welfare principles in place.

And what are the type of young people that come to Kibble and enter into the secure placement unit?---So there will be a very small number of young people with serious offences. Most of the children and young people in Scotland are dealt with through the children’s hearing system. Only around 38 youngsters each year are dealt with through the court system and that would be for very serious assaults and perhaps a manslaughter or murder. So there is a tiny number of young people in that category. So at the moment, in our secure unit we have three young people who actually are in court orders, and the other young people are on a – are actually admitted through child welfare system. That means that these young people usually encompass that mix of problems of mental health issues. They will – they will usually be at risk to themselves, in terms of their behaviour and their potentially suicidal behaviour, but also very reckless behaviour. And also there will usually be some involvement with the police, although the number of young people who are there for very serious crimes is actually very small, and will represent only a handful. We have seen a significant shift in recent years: as community alternative programs have become more successful, they tend to be more successful in young people where the principal difficulty with young people is offending behaviour but is often where that offending behaviour is mixed with mental health issues and a – usually a very disrupted welfare experience ..... family ties attachment issues. So it’s usually in that circumstance where young people end up in our secure facility.

Can I take it from that evidence that the shift in nature of the Scottish system over the past 20 to 30 years has led to a decrease in the prevalence of youth crime?---It has, yes. And the statistics show a steady decline over the years. As you can imagine in the early years of a more, a welfare-based model, there was perhaps a cynicism that that could – that that – what was seen more a liberal approach, there was concern that that would lead to more youth crime. But that – over recent years that hasn’t been the case. I would qualify that by saying that there does appear to be an international fall in youth crime and experts internationally puzzle sometimes as to the reasons why that is happening. But it’s certainly the case in Scotland.

What are some of the services that are directly provided to the young people in secure placement at Kibble?---We would – the Scottish system is based on a strong belief in the power of education. So there is a full school curriculum and attendance at school by young people. When I say a full school curriculum, we have to operate to the standards of our national education inspection body, and we are inspected as a school, as a special school. So we have a full curriculum on offer and that is – we – that is available on our website. But to all intents and purposes a school day provides


5

10

15

20

25

30

35

40

45

the instruction ..... other activities. There’s a big focus on the normal day-to-day, what we would call ..... of life and they’re trying to teach young people the importance of routines in their life so that these are incorporated into their own lifestyle. The balance of doing that and not making that institutional is a challenge but you will also understand that many young people come from a very, very chaotic lifestyle and frequently chaotic family lives, so there is an absence of routine, and that can be simple things like a regular and a good ..... and so on. Perhaps so we would place significant attention on these, what would be seen as just a daily routines. We would have a full leisure and recreation programs. We believe that – and this represents the national priority in Scotland: try and make sure that young people live a fitter and better life. And I also said at the beginning that all our programs are based on national policies and we would be inspected and regulated based on how we ensure that the national priorities for children and young people are actually implemented in what we do. We then have more specialist programs, specialist support programs, based on a range of interventions. So it would include work with the young person and their families. We have a team of associated specialist staff that would include psychologists and specialised family caseworkers, and so we may focus on some family work. We would focus on – certainly on some interventions in trauma, and we’re currently part of an international program in working with young people at using what is somewhat complexly described as the neurosequential model, but it’s a model based on young people with significant trauma in their lives, and largely based on the work of Dr Bruce Perry. We would have other specialist programs, family – sorry – art therapy and cognitive behavioural therapy and a range of counselling interventions based on the particular problems a young person is experiencing in their life.

And do young people in the secure facility interact with young people in the non-secure facilities in accessing some of those services or are they quite independent?---We try to make as many of the services interlinked across a campus. So if a youngster was to move out of the secure unit into one of the – one of our other services, they would be dealing with the same staff. They would have the same curriculum. They would have the same psychological – psychologist, rather, working with them, and so on. We really work hard to try and make that continuity of care one of the principal factors in what we do. So many of the young people have just such poor relationships and such fractured relationships that we believe that there is, in a sense, a form of healing takes place where relationships are established over time, regardless of who these are with.

And to pick up on that point about the continuity of care that Kibble offers, in terms of its integrated services to children and young people, how does that transition between the secure facility and the non-secure facilities at Kibble work in practice?---Sure. When – first of all, as soon as a youngster comes into the secure setting, there is – work begins on planning, in effect, an exit program for that youngster immediately. And so it’s not left until the last minute. So an early ..... within days of admission. An early review, we begin to plan for how that youngster could be accommodated external, externally, either in Kibble or indeed returning to where they have come from. So around 50 per cent of the young people who leave


5

10

15

20

25

30

35

40

45

our secure unit return to either their home or to the project – program that they were in prior to coming to us. Only about 50 per cent of the young people actually exit to our service. But you will also have to see that in context, that we also take a lot of young people and actually are able to – by offering the services that we do on the campus, we are actually able to stop their admission into the secure unit. So there’s a lot of young people who are actually headed off, if you like, before they actually reach the secure unit. Going back to your question about how we provide that continuity, we plan for the young people’s exit and, indeed, we’re planning on making sure that the things that they’re doing, the interventions that they’re working with, would be working with the same people. And if that’s adults external to Kibble, then all of Kibble’s services, then, these adults would be brought into the programs. Within – towards the end of the program young people are given increasing access out of the unit so there will be trial periods of going out of the unit. For example, a lot of our older young people go to our work training programs which are located off campus, in the community, and young people go for training employment programs and then they come back to the secure facility at night. And we try not to have that arrangement going on for too long, but we do believe that giving young people the opportunity to go out for a few weeks and come back each week begins to show that they are able to cope with the independence and ..... some of the routines into their own life.

And you mentioned – and to build on to, on that answer in terms of the work program that Kibble offers, you mentioned in your report the Throughcare model that Kibble works on the basis of, and in particular the Kibble works program. Could you expand upon what that program does for young people and its importance in terms of transitioning young people out of the non-secure and secure residential care facilities that Kibble offers?---Around 15 years ago, as we began to better and profile and do research what was happening to young people, not just before they came to Kibble but during the time at Kibble and then what was happening afterwards. We were seeing a pattern that young people were coming in – indeed, this was in the early days of our integrated service, but we were seeing that young people were beginning to settle, they were making progress, but at that point young people were – the vast majority of young people were leaving public care at the age of 16 and, frankly, they were falling off a cliff in their life, their lives, you know, little support. Often these were young people who had either self-ostracised from the community or had been ostracised from the community support networks because of ..... So they were finding it particularly difficult to ..... back successfully. We were seeing that pattern time and time again and felt that we needed to extend the age at which young people could access services. But these services should be more and more geared towards young people having more independent life styles but also training them for adulthood, and research shows that training for employment and, indeed, employment, is one of the most successful interventions in keeping young people not just out of trouble ..... shows that it’s one of the most successful prosocial indicators that there are. And by that I mean young people who are in employment and who have come from backgrounds are much more likely to avoid institutional care, to maintain more stable family relationships, if they are in employment. Obviously there’s the chicken and egg in that; it’s never quite as simple as just working.


5

10

15

20

25

30

35

40

45

Obviously there are many other players at work. But we did find that the routines of work and just often the sheer physical activity, the challenge of work was important. However, at a time of high youth unemployment, we also knew that these young people were frequently not ready for the world of work. Often young people who have experienced long periods in care are very immature emotionally, although they have – frequently have street smarts and are able to have strong survival instincts, often they’re actually very emotionally immature and impulsive. And these are not good ..... for successful ..... to the workplace. So in 2004 we began a process of developing a range of what are, in effect, small businesses where young people go there for training and employment. And these small businesses are based on more research that shows that the closer a young person is to the actual real world of work, the more successful that training program is. So if you have a training program actually in a secure unit, a vocational training program, it has limited success compared to a program where a youngster in an actual business work. So we now operate a cluster of small businesses that provide training and employment for care-leavers.

And that’s important in terms of Kibble actually running employment services for young people and offering services, those services to the community, that therefore creates a relationship with the community around Kibble. Is that right?---It does, yes. Our history and location means that we are very much part of the community and we work very, very hard at the community relationships. Again, our international research shows that many institutions have detached physically and emotionally, if you like, from the communities. We believe that being linked to the community in as many ways as possible provides a web, if you like, of networks and contacts that can be used.

And how does that operate in practice, that connection to the community that Kibble has in terms of both its location and its operation?---So, for example, the sports facilities would be used by children and young people in the community. The art facilities – we have a theatre and so on. So we use expressive arts as a form of therapy. So we would use that ..... and for community groups, meeting rooms on campus, we make the campus boundaries, if you like, as permeable as possible. Out in the community these small businesses are frequently also providing services to the community that build community links, and we encourage young people to be involved in community activities that are going on, just on a week-by-week nature. So that could be youth organisations but also charity fundraising events and so on.

And does that create positive links between the young people themselves who, as you’ve said, many of whom have self-ostracised from the community in which they live, and in terms of that importance of fostering links between those young people and the community in which Kibble is located?---Well, it means that they’re more connected to – so for example, some of the youngsters play in local football teams, so you’ve got a cohesion there from that. There are – I mean, I have to say there are risks attached to this as well. I would certainly not want to portray this as something that operates smoothly and never creates issues, because sometimes young people from that background will gravitate towards young people who are – also have


5

10

15

20

25

30

35

40

45

difficulties of their own in the community. So it’s something that we – you just have to work on. But simply having a fixed boundaries or borders that cannot be crossed, neither builds bridges to the community nor teaches the young people the importance of internalising more prosocial behaviour. So the answer is yes to your question: it certainly builds links both at the institutional and at the adult level for children and young people themselves.

Can I ask a final series of question regarding the staffing at Kibble. You mentioned that you operate on a care model for staff?---Yes.

Why is that significant for Kibble?---So we are regulated as a child welfare establishment, and our staff have to meet the national minimum qualification requirements for care staff. However, almost 20 years ago we took the decision that if our staff were going to be working at the – with the young people, in effect, for whom no one else had been able to work with, our staff would have to be ..... significant extra training and skills. So we have – every year, we far exceed the minimum qualification levels for staff. And we are – we have the best qualified workforce in the UK within the sector. So it’s built on having a care sector qualification but we then usually will add a range of specialisms to that program and currently work is underway to have these formally accredited as part of a national qualifications system for Scotland.

What are the priorities for Kibble in terms of some of that additional training that is provided to staff? What are some of the key areas that Kibble sees as important to provide training to the staff that works with its young people?---Yes. So one of the first programs that we deal with are around the specialist nature of the children and young people. So we will get many – because we try to present a very open profile and active community involvement and such like, I think that can sometimes lead to misapprehensions about the difficulties that young people have. We will get many well-intentioned applications for people to work in our place but often with our very limited ..... young people and that’s often with aggression. So a significant factor in young people being placed with us is that they’ve been very physically ..... so one of the first training programs that we do are dealing with both the psychological and the physical interventions that are required. And but we do operate a specialist physical intervention system that is actually accredited by the British Institution for Learning Disability. So we have gone for a model of physical intervention that there is absolutely no pain-based interventions; that there are – that it is at least physically restrictive, that we try to obviate the need to put young people in any floor positions. And we do not use any secure rooms for physical interventions. So we don’t have any, you know ..... arrangement for any containment of a physical situation. So we always make – we try to make, in effect, the physical relationship – the physical intervention a relationship-based one.

And you mentioned earlier and in your report also that it was important that frontline staff could work across all of Kibble’s facilities, both secure and non-secure. Why is that important?---When we were developing the secure unit, we took the – again, we had studied extensively some of the – frankly, some problems of secure


5

10

15

20

25

30

35

40

45

establishments internationally, and saw a real pattern of institutional behaviour by the staff, often more than the children. And where you have that fixed mindset of staff and a closed mindset of staff, and that sense of being isolated from other influences in the wider community, these seemed to be the ingredients that make up bad institutional care. So we took the decision to have staff contracts at Kibble and so that staff are moved about. They can move with children and young people ..... depending on the needs of the service but also we will do that to stop, frankly, you know, where we see signs of ..... sorry, where we see signs of staff not coping well, or badly becoming institutionalised themselves, we will intervene and move them elsewhere. ..... and we’ve actually set it into the contract of employment that they have to work and be able to work in any setting within the organisation.

But my understanding is that Kibble has a high retention level for staffing?--- ..... our staff turnover rates for last year were around 4 per cent. So they are small. You know, you could have – and I would qualify that by saying that you would – that not having a high turnover rate can also be indicative of problems. So it can – you’ve got to really scrutinise what you mean by a low turnover rate and why. And we do – we are careful about what that means. But it does allow us to provide a continuity where possible.

And my final question is that you note in your report that it is important that Kibble has an openness to external scrutiny and you’ve already mentioned the importance of strong regulatory frameworks on Kibble. Why is that important to the operation of Kibble?---Well, it crosses multiple areas, really. Again, internationally, you often see ..... as almost pariahs in a community. You know, they have – they’re seen as completely shut off, and there’s often resentment breeds with the local community. And we just feel that that isn’t helpful in reintegrating the young people. So being active – being active community members ourselves we feel is very important. There is – businesses are increasingly expected to be – to have a corporate social responsibility agenda, and I think too many institutions and too many charities seem to forget that they also can have – that they also should have a wider, a social involvement and social responsibility because when you’re working with a specialised group most members of your local community neither know nor understand the real nature of your work. So you’ve got to find as many ways as possible to tell that story. So we have a very proactive program of public relations with the community, local community sponsorship activities, supporting youth groups, children in youth groups. Our employment services do have loads of programs that help other disadvantaged groups in the community. That is teaching young people good citizenship as well. It’s also helping young people understand that they’re not the only one with a problems and that there is often there’s a fairly therapeutical element to helping others. So it’s really multifaceted. At the operational level we believe that being open to new ideas and new approaches is absolutely critical. We couldn’t have built what we have done and developed the services that we have unless we studied nationally and internationally what works and, importantly, what doesn’t work. Sometimes you learn as much from what doesn’t work. Then you have to set about that process of contextualising it, making


5

10

15

20

25

30

35

40

45

sure that for us, that it works, and our location in the west of Scotland. So that’s why that openness is absolutely foundational to what we do.

Thank you, Mr Bell. Those are my questions.

COMMISSIONER WHITE: Mr Bell, apart from your overarching board of trustees as a public charitable trust in Scotland, are you subject to any public scrutiny; that is, by some charity Commissioner or someone outside your governance framework?---Yes. So our – we are subject to the office of the Scottish charity regulator, as a registered charity. We have to provide all our charitable information to that. In the UK we also have a model of company limited by guarantee, a charitable company limited by guarantee. So we also have the regulation as a company, through Companies House UK. And then, as I’m sure you’ve picked up, there’s all the service regulation that we have through education and our care services and the joint inspections that may include health services and so on.

So because you conduct a secure facility, are you subject to any particular inspectorate on account of that fact?---We are – it is also subject – our secure facility is subject to regulation by the care inspectorate, but because it’s secure it’s subject to more regular inspection and that is twice annually: one announced and one unannounced inspection. So – and obviously the care inspection can be – the care inspectors can be in and out at any time. The scale of our operation has been something of a challenge to the regulatory bodies, both the scale and the mix. And because we’ve broken traditional silos, that’s led to us having to work very closely with the regulators on a proactive basis. And in reality what that means is we have them much more frequently than you may otherwise. But we believe that good regulation can also be part of a good development program for the organisation.

Thanks, Mr Bell. Can you tell me – that’s a bit of a feedback – the age of criminal responsibility in Scotland?---It’s now 12.

Thank you?---Yes. It’s now 12, and there is currently some attempts to raise that. Up until last year it was in fact only eight in Scotland, and it was almost Dickensian.

It was. My last question to you concerns your Churchill Trust Travelling Fellowship to the United States which I think is about 15 years ago?---It is, yes.

Am I right in thinking it was 2002?---That’s correct.

What was it that you went to have a look at relating to the institutional care of children and young people?---Okay. Let me just preface my comments by saying that we’ve since had two other members of staff on Churchill Fellowships, one whom has just completed and he has been looking at the effect of trauma on children and young people in residential care. So we retain active links with the Churchill Fellowship. My particular interest was something of a cross between my personal and professional life. So I’m the adoptive father of three sisters and I have a particular interest in fostering and adoption. But we had also felt that fostering of


5

10

15

20

25

30

35

40

45

young people with particular difficulties may be better run out of a residential facility. And because some of the international research shows that young people who have – sorry, foster carers of young people with special needs often have more in common with residential workers than they do social workers. So my Churchill Fellowship was looking at fostering and adoption, particularly how that related to residential care and support for young people – sorry, support for both the children and young people and foster carers who were working with young people with special needs.

And the one that you’ve just mentioned, your colleague in Kibble who has just had the fellowship?---Yes.

Has that person – on trauma in residential care – has his or her report been put on the Trust website yet?---It’s hot off the press, so it probably isn’t on the website but I can certainly arrange to have it sent to you. I think – I actually saw a preliminary copy of his report that was being submitted two weeks ago, and he had worked between Europe and – northern Europe and North America. So he’s got some fascinating insights into that. I can certainly arrange for that to be forwarded to you.

I would be most obliged, Mr Bell. Thank you very much for doing that. Yes. Commissioner Gooda has some questions.

COMMISSIONER GOODA: Mr Bell, do you deal with minorities in Scotland?---Yeah. Sorry, could you repeat that?

Dealing with minorities, does Kibble deal with minority populations in Scotland?---Yeah. In – Scotland has a very low level of ethnic community groups that are actually in public care. In fact, disproportionately under-represented. Now, there’s a number of complex reasons for that. That may change with the changing patterns of immigration. But it’s certainly not a characteristic of most young people in public care. So the number of young people that we deal with each year will be small. Interestingly, as we’ve dealt with more young people from England, that has been more of an issue for us to work with.

As you would be aware, in the Northern Territory there’s a massive overrepresentation of Aboriginal people in both the youth detention and the child protection systems and it’s one of the issues - - -?---Yes.

- - - that caused Commissioner White and I lots of sleepless nights, I think?---I know. And I’m – you know, I really don’t feel that I could comment on that particular element of it. What I would say is, though, that we, when we were setting about to develop, and as we still do, we do really feel the importance of context as people are coming from is crucial to how you develop what you do. We deliberately set our face against importing programs from elsewhere. What we tried to do was learn from what others had done elsewhere and then adapt that to the Scottish context. And my advice to any country under development is that you – they be very, very wary of importing very highly prescribed programs.


5

10

15

20

25

30

35

40

45

Yes. I’m just smiling because I showed Commissioner White your signature block “working with young people since 1859.” That’s sort of unheard of in this country for something that’s so old?---Even in this country that is something of a historical fluke. We’re not quite – we’re not unique. There are a few other organisations. But obviously a lot of older organisations didn’t establish – sorry, didn’t adapt to a contemporary – although we are very old, we actually – we believe that we’re probably the most advanced and forward thinking of youth organisations in terms of responsiveness, say, to change. Just to – well, to – maybe to quote one of Winston Churchill’s paraphrases, it’s the importance of learning from history.

Thank you.

MR GOODWIN: Thank you, Commissioners.

COMMISSIONER WHITE: Anything arising from that?

MR GOODWIN: Nothing arising.

COMMISSIONER WHITE: Mr Bell, we are very grateful that you have taken the time to write the report for us and more particularly for giving us the benefit of the long experience of Kibble and your own personal long experience in this sector. It’s given us some valuable insights, and we are most grateful for your cooperation with the Commission. So thank you very much?---Thank you very much, and I wish you every success, and we will look forward to learning about the outcome of your deliberations. We believe that we will learn from them as well. Thank you.



COMMISSIONER WHITE: Now, Mr Goodwin.

MR GOODWIN: Thank you, Commissioners.

COMMISSIONER WHITE: Late arrival, Mr Lawrence?

MR LAWRENCE: Yes. Managed to avoid the Scottish juvenile justice system, and I will maintain that ..... avoidance relationship.

COMMISSIONER WHITE: Mr Goodwin.

MR GOODWIN: Commissioners, can I tender the Kibble campus map and Kibble services map as a bundle?

COMMISSIONER WHITE: Yes. Thank you. That’s exhibit 610.


5

10

15

20

25

30

35

40

45

EXHIBIT #610 KIBBLE CAMPUS MAP AND KIBBLE SERVICES MAP

MR GOODWIN: Finally, the mystery the personal story has been solved, and there is now a short one to play at the end of the day. We will now hear the personal story of DU, the mother of four children, and a grandmother. She talks about caring for her granddaughter from the age of six weeks and bringing the child up through her primary school years. DU recounts how the girl was removed from her care and placed with a carer in Darwin. She talks about her granddaughter’s experiences in care, including how she ran away from care on numerous occasions. If we could please play DU’s story.

COMMISSIONER WHITE: Yes, Mr Goodwin, of course.

RECORDING PLAYED

COMMISSIONER WHITE: Thanks, Mr Goodwin.

MR GOODWIN: Nothing further, Commissioners. I believe we commence at 8.30 am tomorrow morning.

COMMISSIONER WHITE: 8.30? That is with the two magistrates from - - -

MR GOODWIN: From Melbourne, yes.

COMMISSIONER WHITE: From Melbourne. Alright. Thank you. We might adjourn till 8.30 then tomorrow, if you would, please.

MATTER ADJOURNED at 5.10 pm UNTIL WEDNESDAY, 28 JUNE 2017


5

10

15

20

25

30

Index of Witness Events

VINCENT SCHIRALDI, CALLED P-5077EXAMINATION-IN-CHIEF BY MR CALLAGHAN P-5077

THE WITNESS WITHDREW P-5094

MIKE MacFARLANE, AFFIRMED P-5095EXAMINATION-IN-CHIEF BY MR McAVOY P-5095


NEIL ANDREW MORGAN, AFFIRMED P-5120EXAMINATION-IN-CHIEF BY MR McAVOY P-5120CROSS-EXAMINATION BY MR O’MAHONEY P-5142


GRAHAM BELL, CALLED P-5145EXAMINATION-IN-CHIEF BY MR GOODWIN P-5145


Index of Exhibits and MFIs

EXHIBIT #601 PRECIS OF EVIDENCE OF VINCENT SCHIRALDI AND ANNEXURES

P-5077

EXHIBIT #602 PHOTOGRAPHIC SEQUENCE PRESENTED BY VINCENT SCHIRALDI DURING EVIDENCE

P-5094

EXHIBIT #606 PRECIS OF EVIDENCE OF MIKE MACFARLANE WITH TWO ANNEXURES

P-5096

EXHIBIT #607 BUNDLE OF 19 PHOTOS P-5118

EXHIBIT #608 STATEMENT OF NEIL MORGAN P-5121

EXHIBIT #609 REPORT ON THE KIBBLE EDUCATION AND CARE CENTRE WITH CURRICULUM VITAE ATTACHED

P-5145

EXHIBIT #610 KIBBLE CAMPUS MAP AND KIBBLE SERVICES MAP

P-5158

.ROYAL COMMISSION 27.6.17 P-5159©Commonwealth of Australia

5

transcriptcreator - web viewthat’s why i wasn’t prone to the word...

Documents