They Are Children: Punitive Justice on Trial in NTRC Interim Report

Grandmother to a vulnerable witness stands with supporters outside Royal Commission hearings in Alice Springs.

Announcing the delivery of the Northern Territory Royal Commission Interim report, Commissioner White delivered a powerful indictment of the punitive justice system in the Northern Territory:

“At every level, we have seen that a detention system which focusses on punitive, not rehabilitative, measures fails our young people. It fails those who work in those systems and it fails the people of the Northern Territory who are entitled to live in safer communities. For a system to work, children in detention must be given every opportunity to get their lives on track, and to enter the community less likely to re-offend.”

Outside the Royal Commission hearings in Alice Springs, a Grandmother to a vulnerable witness spoke to the camera. Her gaze was direct, and she enunciated her words carefully, “They are children”. She paused. With her eyes she asked the viewers to hear those words a little deeper. “They are children” she repeated.

The Royal Commission hearings that have been taking place over the last 3 weeks are focused on the “Protection and Detention of Children in the Northern Territory”, so the fact that we are talking about children here should be self evident. Yet in the rush and hustle of Commission hearings and media coverage, it is a fact easily forgotten. These three simple words cut to the heart of the conversation the Royal Commission has forced the Northern Territory to have.

Last week, a verdict was delivered in a case brought against the Northern Territory Government by former juvenile detainees. In her summary, Justice Judith Kelly characterised the detainees involved as hardened criminals. Detainees who were children at the time of the events. In her ruling, Kelly stated “I cannot ignore the fact that each of the three plaintiffs who gave evidence … has a considerable criminal history.” Because of her characterization of the children as criminal and unreliable, Justice Kelly rejected eight of the plaintiffs’ claims, while partially upholding two. “Generally, when considering each of the plaintiffs’ claims, I have preferred the evidence of the youth justice officers and prison officers,” Kelly stated.

Justice Kelly called for understanding and empathy for the behaviour of Youth Justice Officers. However, she did not do the same for the children involved in the incidents.

The behaviour of the Youth Justice Officers included holding children in isolation for extended periods, teargassing them, hooding and shackling them. At the time of the teargassing, some had been in isolation for 17 days. The legally permissible limit was 72 hours.

In the popular imagination, it is easier to justify punitive measures against people described as ‘detainees’, or ‘offenders’. The word ‘children’ offers a different feeling. It demands protection, even care.

Reading a handwritten statement to the Royal Commission in 2016, Dylan Voller, the youth at the centre of the Four Corners coverage that sparked the commission, said: “One of the biggest problems we face is the fact that we are being further punished whilst in prison. Being sentenced by the judge to do our time for our crime is our punishment, not the continued mental and physical abuse we continue to cop while we’re here”

The absence of calls for ‘understanding and empathy’ for children convicted of crimes in the Northern Territory is not an accidental omission. Rather, it reveals a punitive culture. Ideas like ‘teaching people a lesson’ hold sway here, as well as the presumption that if people are acting outside the law, the system has not been punitive enough. This predilection for punishment permeates all levels of NT society. Community members and business owners call for harsher punishments for property crime in local papers and online forums, politicians garner popular support through law and order pronouncements, and local police officers enforce laws with discretionary judgement that sees many children facing the full extent of the law.

What is shocking is not the ‘tough love’ approach itself, but rather an insistence upon it that is so implacable that it would support the torture of children.

Educators have known for many years that encouragement and not punishment is the path to positive behavioural change. However as the experiences of Dylan Voller and other detainees have revealed, ‘rehabilitation’ carried out in the Northern Territory’s youth detention centres has involved not only the deprivation of liberty, but also verbal and physical abuse, and even the deprivation of basic necessities such as food and water, education and care.

Kirra Voller with her brother Caleb and supporters outside Royal Commission hearings in Alice Springs.

Russell Goldflam, principal legal officer at the Northern Territory Legal Aid Commission, said ‘I’ve seen many children in court and there’s a lot of shame, being paraded through he court foyer in Alice springs in handcuffs. It’s a humiliating experience. That sort of shaming is compounded when they see on TV some politicians talking about them (in derogatory terms). It has a corrosive effect on their self-esteem… and is a self-fulfilling prophesy”.

Northern Territory government policy has for years been influenced by a popular desire for punitive measures. However as adults trusted with the care of children, we as a community have a responsibility to look beyond knee-jerk responses and build a system that encourages children to truly rehabilitate, grow and thrive.

David Ferguson, who produced a 2014 review of NT juvenile detention in the aftermath of events including teargassing, assaults and attempted escapes stated: “It should be obvious to anyone that if you treat youth like animals by not communicating, threatening, belittling them, withholding food and other entitlements, they will react in an aggressive way”. He went further to suggest that “Most of these incidents were most probably entirely preventable with the use of appropriate communication and open interaction with the detainees, combined with a regular routine to keep them occupied.”

In the context of a punitive culture, it is imperative that we take responsibility for the care and rehabilitation of these children away from the current system. Since the Stanford Prison Experiments of the 1970s, psychologists have understood that putting anyone in the positions of power constructed by prisons without an ethic of care and systems of accountability, will inevitably lead to abuses. To this day in the NT, staff and managers who have committed past abuses continue to be employed and responsible for the welfare of children in detention, the majority of the workforce has completed only 3 days basic training, and there are constant staff shortages that produce harsher conditions for incarcerated children.

The Grandmother looked beyond the camera to a line of departing lawyers rolling away suitcases and a gathering of small family groups quietly reflecting on the day. “We teach our kids to respect, to respect your elders.” She said. “And if the elders in those places of authority is not giving that (respect) to the kids, well, our teaching is thrown out the window.” There was a sadness in her voice. Her wisdom is simple, but it shows us a way forward in a way the Royal Commission is still finding the words for. We teach our children the values that we want them to embody.

What the Royal Commission offers as a path forward for the children of the Northern Territory remains to be seen. Recommendations will not be handed down until the final report is tabled in August. However it is now clear that under current conditions, the difficult task of the rehabilitation of vulnerable young people will continue to be plagued by failures and abuses. The only responsible way forward is to close existing detention facilities and look at alternatives.