Why another Royal Commission when the recommendations of the last one continue to gather dust?

4 Aug 2016

Last Monday night, the ABC's 4 Corners program directed the nation's attention to the horrific violations occurring within the Northern Territory's juvenile justice system. A series of leaked images taken from inside the Don Dale Youth Detention Centre revealed that Aboriginal boys as young as 13 had endured forms of torture comparable to the abuses committed against inmates of the notorious Abu Ghraib prison.

Author: Jack Latimore and Clare Land

Last Monday night, the ABC’s 4 Corners program directed the nation’s attention to the horrific violations occurring within the Northern Territory’s juvenile justice system. A series of leaked images taken from inside the Don Dale Youth Detention Centre revealed that Aboriginal boys as young as 13 had endured forms of torture comparable to the abuses committed against inmates of the notorious Abu Ghraib prison.

By breakfast time Tuesday morning, Australia’s prime minister Malcolm Turnbull had announced that a royal commission would be established to investigate the treatment of children within the NT’s justice system.

The story had other immediate impacts. The territory’s correction’s minister John Elferink was fired by his chief, Adam Giles. After taking on the portfolio himself, Giles next announced that a new juvenile detention facility would be built. Then he called the police to ask if the prison officers in the vision had done anything illegal.

Well-known CCTV footage from 2010 recorded inside the Don Dale detention was again broadcast nationally as part of the 4 Corners story.

Image: Well-known CCTV footage from 2010 recorded inside the Don Dale detention was again broadcast nationally as part of the 4 Corners story.

While Elferink was held accountable, Giles and other territory ministers and their political colleagues in the federal government – from the PM to his NT-based Indigenous affairs minister Nigel Scullion – until recently claimed no prior knowledge of the abuses. As the week wore on the media and public became increasingly aware of the contents of Michael Vita’s 2015 NT Youth Detention Report and a 2014 NT Children’s Commissioner investigative report into correction services specifically at the Don Dale facility.

In addition to those investigations, affected families of detained juveniles, concerned citizens, expert civil advocates, lawyers and extensive community media coverage had all repeatedly raised these matters publicly since as early as 2014. Yet those voices – from the Territory and further a field – were wilfully disregarded by the political hierarchy.

25 years ago the landmark $50m Royal Commission Into Aboriginal Deaths In Custody (RCIADIC) tabled a final report that contained 339 recommendations aimed at systematically reforming the protocols and practices of Australia’s dominant institutions and services. In addition to criminal justice and corrections, the recommendations addressed health, housing and infrastructure, education and media. Most of them remain unimplemented.

Under the heading Young Aboriginal People and the Juvenile Justice System, recommendation 62 exhorted:

That governments and Aboriginal organisations recognise that the problems affecting Aboriginal juveniles are so widespread and have such potentially disastrous repercussions for the future that there is an urgent need for governments and Aboriginal organisations to negotiate together to devise strategies designed to reduce the rate at which Aboriginal juveniles are involved in the welfare and criminal justice systems and, in particular, to reduce the rate at which Aboriginal juveniles are separated from their families and communities, whether by being declared to be in need of care, detained, imprisoned or otherwise (2:252).

With so many of the 1991 recommendations still gathering dust, and Indigenous incarceration rates now double the 1990 levels, many Indigenous and non-indigenous people are understandably sceptical about Turnbull’s announcement of yet another royal commission concerned with the imprisonment of First Nations people.

The Koori Mail newspaper reported on the treatment of kids held in Don Dale in September 2015.

Image: The Koori Mail newspaper reported on the treatment of kids held in Don Dale in September 2015.

Failure to implement the recommendations of the RCIADIC cannot be blamed on its being forgotten.

Rather, as one key example shows, many of its findings and recommendations were entirely disregarded by the Victorian government within 12 months of the submission of its final report, seemingly setting the trend for successive governments across the so-called Commonwealth for the ensuing quarter century.

In 1992 – the year after the RCIADIC – the Victorian State Government decided to close down an institution that the RCIADIC had noted was remarkably successful at keeping Aboriginal children engaged at school and away from the criminal justice system: A humble State school called Northland Secondary College in Melbourne’s northern suburb of Preston East.

Northland was not a specialist Aboriginal school, yet in 1992 it had the largest enrollment of Aboriginal students of any school in Victoria. Koori Educators Dedrie Bux and Lyn Thorpe developed a unique educational model, a form of education that is today held up as an ideal in the Aboriginal education context.

The announcement that the State would close Northland (alongside 300-plus other Victorian state schools) came as a surprise to teachers who knew Northland as a unique and thriving school with growing enrolments. As well as strong community support, the school was publicly championed by well-known Aboriginal figures like Archie Roach and Ruby Hunter.

‘This is incredibly distressing for the Koori people involved,’ said Northland school community leader Gary Foley at the time of the closure. ‘We see our kids falling into the cycle that the royal commission clearly defined… that often leads to deaths in custody.’

The closure was also described as a ‘death sentence for our kids’ by Aboriginal activist and Northland school council member Robbie Thorpe.

In December 1992 two Aboriginal students, supported by the Northland school community, lodged a complaint with the Equal Opportunity Board claiming the State’s decision to shut down the school amounted to systemic racial discrimination.

The Equal Opportunity Board immediately issued a restraining order preventing the closure of the school, followed by a stay order in January 1993, which preserved the schools assets and buildings.

After a full hearing in September 1993 the EOB found the State had racially discriminated against Aboriginal children and ordered that the school be reopened.

The Victorian State government immediately appealed, and Justice Beach of the Supreme Court overturned the EOB decision in early 1994, permitting the Jeff Kennett-led government to action the closure.

The children then took their case to the Full Bench of the Supreme Court.

Throughout the legal process, the government repeatedly resisted the idea of having its executive decisions reviewed for human rights compliance, even going so far as to retaliate by sacking the Equal Opportunity commissioner, Moira Raynor and overhauling the Equal Opportunity Act.

Politically, the interests of 65 Aboriginal children – many of whom were at ‘extreme educational risk’ and arguably only being prevented from sliding into the juvenile justice system by their engagement with the school – were set against the State government’s immediate budget-saving measures and restructuring drive. The Government judged that by responding to the pleas of one ‘special interest group’ it would expose itself to a raft of similar claims and its entire cost-cutting program would be jeopardised.

In 1994, in the middle of the see-sawing dispute (according to discrimination law expert Loretta de Plevitz, the process included ‘thirteen public hearings in which the [Victorian State Education] Minister contested every possible point, no matter how trivial’), Northland Secondary College advocates were invited to give evidence to a federal parliamentary sub-committee conducting an Implementation Review of the RCIADIC recommendations.

They told the parliamentary committee that: ‘Something needs to be done and quickly. All government bodies have turned a blind eye to this tragedy. Yet the lives and futures of these young people are at risk.’

They also told Melbourne newspaper The Age that: ‘It’s only a matter of time before you are looking at more than one of those kids dead… it is inevitable. When they do, it will be a direct result of the closure of the school.’

In January 1995, more than 2 years after the original complaint was made by the two Northland students, the Full Bench of the Supreme Court overturned Justice Beach’s decision.

The matter went back to the EOB, which found ‘the State’s closure of the College had the effect of indirectly discriminating against the complainants and other Aboriginal students at the College on the basis of their race’.

The EOB maintained that the only way to redress the complaint was to reopen the school.

However, this remarkable legal vindication and the outstanding redress the children won did not prevent what is thought to be a ‘lost generation’ of children whose education was so severely interrupted that as a cohort, they experienced a disproportionate amount of the ‘disastrous repercussions’ that the RCIADIC urged governments and institutions to actively prevent.

There were also broader implications to the school closures: The Victorian Council Of Social Services has estimated that about 60% of former students at the 300-plus schools closed ‘failed to complete their education as a direct result’ of the state government policy.

Predictions during the Northland campaign that deaths may result from the school’s closure appear to have tragically come true. Research is currently underway, with those affected – and in certain cases their surviving relatives – invited to recount what meaning and effects they now attribute to the closure.

Not one of the multiple democratic processes deployed by the Northland community to convey their concerns was heeded by the Victorian state government despite the high likelihood of negative consequences for such policies being made known by the 1991 RCIADIC. Subsequent State and federal governments’ indifference towards democratic modes of engagement and the ongoing disregard of the recommendations of the 1991 RCIADIC has made this particularly obvious.

For decades, Aboriginal people and supporters have used every conceivable democratic process to alert government to human rights violations and discriminatory policies. Whether it is participating in negotiations, presenting petitions, staging demonstrations, repeatedly providing testimony and evidence to numerous committees, or appealing to the Victorian or Australian Human Rights Commissions, or recruiting allies, or raising awareness via community media broadcasts, or talking to journalists, writing letters, meeting with ministers, organising questions to be put to Parliament, or lodging public interest litigation: all of it has been done with faith and trust in a democratic process.

To date, this has sadly proven insufficient to gain the ear of high level bureaucrats and elected officials.

Cases like Northland and Don Dale suggest that governments have withdrawn from the honest contest of ideas and increasingly shirk the proper review of policy decisions. It appears that Aboriginal people cannot rely on governments, or even parliaments, to restrain themselves from rights violations and omissions. And there is no formal system of checks and balances that enables Aboriginal people, as a demographic minority, to hold governments to account.

Consequently, levels of distrust and cynicism about announcements like the one made by PM Turnbull for another Royal Commission into issues of Aboriginal incarceration will continue to mount within Indigenous communities, as will the number of Black lives destroyed and traumatised by ill-considered or injuriously designed policy.

This week’s events have illuminated not only a grave and immediate human rights tragedy, but profound dysfunctions within Australia’s foundational political structures.

DISCLAIMER: Co-writer Clare Land is involved in the research into the closure of Northland Secondary College and the community campaign that was waged to have it reopened.

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