A brief guide to the Don Dale scandal

The shock of politicians was always hard to take seriously. The problem is not a lack of knowledge. It’s that Australian governments refuse to act on what we do know.

Michael Brull
26 August 2016

On 25 July, the ABC – Australia’s version of the BBC – aired a terrific program of Four Corners, exploring how guards in the Northern Territory (NT) were brutalising children in a juvenile detention facility called Don Dale. In one instance, six boys were kept in inhumane conditions in solitary confinement for 23 and a half hours a day, for 15 days. When one boy broke out of his cell, into a larger but still confined space, one guard suggested they let him “come through”, as he would “pulverise the little fucker”. They then decided to “gas the lot of them”. The Corrections Commissioner said “I don’t mind how much chemical you use”. In one cell, two children were playing with cards. The former Children’s Commissioner for the NT observed the boys, “were so terrified they thought they were gonna die. And they said their goodbyes to each other huddled behind a mattress at the back of their cell.”

That’s just one of the incidents shown on Four Corners. Others included various instances of one particular boy being attacked by guards, and being repeatedly forcibly stripped naked. In one scene that brought international attention for looking like Guantanamo Bay, a young boy was strapped to a chair, with a hood over his face.

The shock

The response to the show was public displays of shock. The Prime Minister announced a Royal Commission to inquire into what had happened, as he was “shocked and appalled” at the scenes at Don Dale. Adam Giles, Chief Minister for the NT, said he was “shocked” at scenes like a child being struck, or being thrown down and stripped naked, which he called “quite horrific”. The Federal Indigenous Affairs Minister Nigel Scullion said that “I wish I’d known”. Alas, it had not “piqued my interest”. He later admitted he had been briefed about the tear-gassing incident.

The shock of politicians was always hard to take seriously. My colleague at New Matilda Amy McQuire observed that “Children gassed” had been the front page of the Koori Mail in September last year. This was in response to the Children’s Commissioner Colleen Gwynne publicly releasing her report on the tear-gassing incident in September 2015. She quoted from the footage, but was not able to publicly release it. Her recommendations were ignored. There are a slew of other reports on the mistreatment of children in juvenile detention in the NT that were also ignored, along with other reports on Aboriginal over-representation in juvenile detention in Australia.

In one incident from the program, a boy was grabbed by the throat and hurled to a bed by a burly guard, as two other men stripped him completely naked and took his possessions. At the time, the boy complained about the guard’s use of force. It was upheld by the Magistrates Court. It was then upheld again on appeal to the Supreme Court. The finest legal minds of the NT decided that this was a reasonable use of force, “not excessive”, and a “low level” of physical. Footage of the incident aired on the NT’s ABC after the judgment. The Corrections Commissioner boldly announced that “the staff acted appropriately”, “I support them”, and that he “will not tolerate young people spitting on my staff”. The boy was supposedly stripped as a protective measure, because he had threatened self-harm.

Though Giles was Chief Minister then, he claimed to have somehow missed all this.

The systemic rot

Most of what was shown on Four Corners was not only on the public record, but had been vocally defended, and even institutionalised by the NT government. For example, the use of the restraint chair had been reported on last year by the ABC. Earlier this year, the NT Minister for Corrections had introduced a bill to formally legalise and entrench the use of restraint chairs specifically against children. In his second reading speech, he warned that children in custody had become “increasingly violent, dangerous and irresponsible”.

Solicitor Peter O’Brien observed that the NT government had created “a political atmosphere in which this kind of abuse became normalised… Politicians competed to demonise youth delinquency and to drive a singular focus upon being as merciless as possible, with promises of tougher sentences, police powers and bail laws.” The NT News similarly ridiculed Giles’ “crocodile tears”, given his long record of tough on crime rhetoric. His party had claimed in 2012 that Don Dale “was a place where kids played ‘video games’ and needed tougher love.” Though he responded to the video of a child in the restraint chair and hood over his face by expressing discomfort, “Just four months ago his Cabinet approved its use on children. What did he think it was going to be used for? Wheelchair basketball?”

The new Royal Commission

The abuses at Don Dale are the tip of the iceberg. Yet though we already have reports on what to do about Don Dale, the Federal Government has restricted its royal commission to the NT. It decided on the royal commissioner and its terms of reference without consulting Aboriginal groups in the NT. Instead, they consulted Mick Gooda, Warren Mundine, and Giles. This brains trust appointed Brian Martin, a former Chief Justice of the Supreme Court of the Northern Territory.

He resigned within a week, as peak Aboriginal organisations in the NT responded to his appointment by saying they were “hurt and furious” at the appointment. They observed his demonstrable lack of independence, having “sat at the apex” of the system that had been imprisoning Aboriginal youths. Martin’s judgment also didn’t inspire much confidence.

In July 2009, a group of white men drove along a dry river bed in Alice Springs, driving at Aboriginal campers and forcing them to flee. Aside from the fun of terrorising them with their car, the men got out of the car and yelled racial abuse at the campers. The young men then went back to one of their homes to get a gun. They returned and fired blanks at the campers. One man responded by throwing a beer bottle at their car. They chased that man down, repeatedly kicked him in the head, and smashed a bottle on his head. When he went limp, they casually drove away. The man died.

As there were witnesses, the young men were caught and sentenced. The judge decided that this was “toward the lower end of the scale of seriousness for crimes of manslaughter”. He praised the “good character” of every one of the young men. For example, one of them, admittedly having a prior assault conviction, had been a “good sportsman” in school.

The judge in question was Brian Martin. Martin resigned from the royal commission within a week of appointment, conceding that he “would not have the full confidence of sections” of the Aboriginal community. The Attorney-General had previously dismissed those critics as “very foolish”. Within a few hours of the resignation, the federal government appointed one of the three people they had originally consulted, and a former Queensland Supreme Court Justice.

The racism

International readers may wonder why it took so long for public outrage in the face of facts that were so publicly accessible for so long. The answer is that many of the victims discussed above are Aboriginal. About 96 percent of the children in juvenile detention in the NT are Aboriginal, though Aboriginal people only constitute about 30 percent of people in the NT.

In 1991, the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) released its landmark report, showing that the reason so many Aboriginal people die in custody is because they are so disproportionately likely to be in custody. 25 years later, that disproportionate rate has grown. Where they were eight times more likely to be in custody in 1991, they are now 15 times more likely to be in prison. The 339 recommendations of RCIADIC have overwhelmingly been ignored.

Many Aboriginal people have responded with scepticism to the new royal commission. This scepticism is richly justified. As noted above, governments have not only ignored the RCIADIC, they also ignored many other reports into juvenile detention of Aboriginal children. They have also ignored countless other reports in Aboriginal affairs. Part of this is because the reports would require money to be invested in Aboriginal communities, and they don’t care about Aboriginal people. Part of this is because expert opinion more or less always calls for a policy of self-determination, which was a central recommendation of RCIADIC. Instead, governments prefer to centralise power in their own hands, and marginalise Aboriginal communities from decision-making. This marginalisation was illustrated once again in the royal commission process. Countless other examples could be given.

In 1991, RCIADIC argued that the reasons so many Aboriginal people were in custody could be divided into two factors. One was discriminatory elements in the criminal justice system. Another was the entrenched disadvantage of Aboriginal communities. Neither have been addressed. Neither will be addressed by the new royal commission. Over two decades of reports show that the problem is not a lack of knowledge. It’s that governments refuse to act on what we do know. The new royal commission is unlikely to resolve this problem.

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