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ELIZABETH:

From Schwartz Media. I’m Elizabeth Kulas. This is 7am.

Two years after changes were made following a royal commission into youth detention, tear gas is again being used on children in the Northern Territory.

Surprise laws have also repealed earlier recommendations on the use of mechanical restraints and solitary confinement. Russell Marks on Don Dale, race and who’s writing the legislation that affects young people in custody.

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ELIZABETH:

Russell, tell me about this footage that was leaked to the ABC in January.

RUSSELL:

Yeah sure. So in January there were some CCTV footage from inside the Don Dale Youth Detention Centre in Darwin that was released.

ELIZABETH:

Russell Marks is a journalist and lawyer. He recently wrote about Don Dale for The Monthly magazine.

RUSSELL:

And it's a collection of images of a pretty significant incident which had occurred in November last year inside Don Dale.

The footage shows very heavily armed guards police officers aiming assault rifles at some unarmed teenagers.

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Archival tape — Unidentified woman 1:

“In leaked CCTV footage of the incident, youths can be seen on the roof of the detention centre and attempting to cut through a fence with power tools.”

Archival tape — Unidentified man 1:

“There's a quagmire that's been created by governments. That don't want to attend to it. And what are we doing? Nothing.”

Archival tape — Unidentified man 2:

“Police arrested a dozen inmates after gaining access to the centre. A royal commission into the facility found it was not fit for purpose and recommended it should be closed.”

RUSSELL:

The footage shows some of the young people getting some keys from some of the staff members who worked there. Footage also shows some teenagers sort of making some weapons where they can find them. And it also shows the officers ultimately tear gassing the young people which is, as I understand it, the incident that brought what was referred to in the in the media and by government as an eight hour siege brought that siege to an end.

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ELIZABETH:

And this is of course Don Dale, the same detention centre which prompted outrage in 2016 over the use of mechanical restraints.

RUSSELL:

That’s right. Back in July 2016, Four Corners aired some footage that was spliced together from the couple of years before that which also showed young people being tear gassed. It also showed that searing image of Dylan Voller strapped to what was called a mechanical restraint chair with a spit hood tightened over his face and head. It was almost like something out of Abu Ghraib was the comparison that was made at the time and I don't think it's an exaggeration to say that it appalled the country.

ELIZABETH:

And what happened after that Four Corners footage came out in 2016?

RUSSELL:

Well if we recall Malcolm Turnbull was prime minister and within about 10 hours of that footage going to air he announced a royal commission to look at not just what was happening inside youth detention centres in the Northern Territory but also what was happening across the whole of the youth justice system in the Northern Territory and the child protection system which is intimately related in terms of the young people who are involved in both systems. That set about doing its work, and in November of 2017 it reported it made 227 recommendations and called for the closure of Don Dale, which is actually the old adult prison at Berrimah that's been repurposed for its current use.

ELIZABETH:

And were those recommendations acted on?

RUSSELL:

Within about a month of the footage being aired on Four Corners in July 2016 the Labor Party re-formed government in the Northern Territory under the chief ministership of Michael Gunner. And they pretty much immediately set about reforming the youth justice system in line with the Royal Commission's recommendations. So they banned spit hoods. They banned mechanical restraints. They banned solitary confinement.

They placed really quite strict restrictions on the use of force against teenagers in detention centres. And they set up a range of advisory committees to make sure they were consulted with relevant experts including legal services.

ELIZABETH:

Russell, that all seems positive but what’s happened in the two years since?

RUSSELL:

So in March of this year there was a bill that was rushed through Parliament which undid most of the new restrictions on the use of force in youth detention centres. The use of force no longer needs to be objectively necessary, for instance. Restraints in solitary confinement can again be used simply to maintain order and discipline.

The laws that were passed very quickly in March this year are retrospective which effectively means that any of the restrictions which had previously operated were never really there to begin with. And quite surprisingly none of the legal experts or legal services on any of the Government's advisory committees were consulted about what a lot of people began referring to as these surprise amendments in March.

ELIZABETH:

And tell me a little bit about this government that's rushed through this repeal legislation.

RUSSELL:

This government is very inexperienced. Michael Gunner kicked his only lawyer out of caucus in December. And for instance this may be a little bit unfair but his attorney-general's a former PE teacher.

ELIZABETH:

So this person has no legal experience.

RUSSELL:

Not to the best of our knowledge, no.

ELIZABETH:

Okay. And so Russell, with that level of inexperience, who is actually writing the legislation that affects youth detention conditions in the Northern Territory at present?

RUSSELL:

There's a real question as to whether policy is in effect being written by the departments themselves.

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RUSSELL:

The real issue here is that it's a fox in charge of the henhouse kind of situation because the department that runs the detention centres in Alice Springs and in Darwin at Don Dale also employs the youth justice officers and the guards that are staffing those centres and they seem to be the ones who are writing the laws.

ELIZABETH:

We’ll be right back.

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ELIZABETH:

So Russell, following on from the 2017 Royal Commission into youth detention. There was or there seemed to be a hope that there would be some positive change and a lot of the legislation that was passed after that has been repealed. What changed from the public outcry that we saw at the time of the royal commission? What's different now?

RUSSELL:

There was certainly an outcry in some sectors of the national community, but things were always a little bit more complicated in the Northern Territory. Certainly the government that had power at the time, the Country Liberal Party government, never really saw that there was much of an issue. They've always held that the Four Corners report was a beat up and Malcolm Turnbull overreacted. And a lot of the reforms were sort of progressively introduced by the new Labor government. There have been different messages that that government's been receiving from different groups in society.

So for instance, the staff who were employed in the youth detention centres have been telling their union and have been telling their managers that the royal commission-based reforms are making their jobs a lot harder to do. They were telling their managers and telling their unions that they weren't sure when they could use force against young people and they felt that that was making their job more unsafe.

ELIZABETH:

So the sector that's unionised is saying we actually need these powers, they’re necessary for us to do our jobs. What about public opinion here?

RUSSELL:

Whenever you get incidents happening inside youth detention centres they get reported in particular ways, they get reported in ways particularly through the Murdoch press which portray the young people themselves as the problem and the instigators of the violence and more and more of those incidents being reported does have an effect, I think, on public opinion. And you've also got a situation where the NT news which is a kind of traditional campaigning Murdoch newspaper. It's publishing lots and lots of letters and messages that are coming from members of the community who are pretty angry and pretty incensed by what's happening in youth detention centres and they just want tougher, harsher laws which they think protects them and their community. One letter that was published late last year in Don Dale called for euthanasia to be implemented in the youth detention centre.

ELIZABETH:

Someone wrote into the paper and expressed that view.

RUSSELL:

Someone wrote into the paper expressed that view and it was published by NT News.

ELIZABETH:

So in the NT public opinion is against young people who are being held in detention and this is being fomented by the press and by staff?

RUSSELL:

That's right to say. As things have become really tough, which they traditionally do in youth justice reform, there's sort of no one staying the course.

The problem is that there's there hasn't been a lot of public advocacy and one pretty obvious theory of change is that, sure, you need to do the work behind the scenes advising governments of policy reform but you also need to be applying some kind of public pressure on the government.

ELIZABETH:

Russell, laws are being repealed as you've mentioned. Are there legal reasons for making these repeals retrospective?

RUSSELL:

So a lot of the laws that were passed in 2018, which placed restrictions on say the use of force by staff members on detainees in Don Dale, and those laws have been retrospectively repealed. Many suspect that those retrospective amendments were designed to protect staff from pending lawsuits brought by, for instance, detained children. So Maurice Blackburn has confirmed that at least 10 of its clients challenges against staff members excessive force would definitely be affected by those retrospective changes.

ELIZABETH:

And Russell, in your view what place does race have in this story?

RUSSELL:

I think race is central to any story or any understanding of youth justice in the Northern Territory. Every single child in the Northern Territory who is in detention is Aboriginal. That's been the case for well over a year possibly longer.

ELIZABETH:

That's every single child.

RUSSELL:

Every single child.

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RUSSELL:

Race shapes relationships and interactions between young people and police. It shapes the way that young people are dealt with by courts. It shapes the way that young people are sentenced. And it definitely shapes the way that young people are treated inside detention centres.

ELIZABETH:

And do you think it shapes the way the public thinks about this issue?

RUSSELL:

Almost certainly. Almost certainly shapes the way that the public thinks about these issues.

ELIZABETH:

Russell, thank you so much for speaking with us.

RUSSELL:

Thank you Elizabeth.

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ELIZABETH:

Elsewhere in the news:

United Patriots Front leader, Blair Cottrell has been unsuccessful in his attempt to overturn a racial vilification conviction in Victoria's supreme court. Cottrell was convicted of inciting hatred, contempt and ridicule after releasing a video showing a dummy being beheaded. The video was created in response to a proposed mosque in Bendigo. His bid to have his application heard in the high court was rejected earlier this year. He then attempted to appeal the matter in Victoria's supreme court. A county court judge dismissed his application on Tuesday, saying that her court was equipped to deal with the matter. The appeal is set for a 10 day hearing starting August 8th.

And the Victorian Premier Daniel Andrews announced yesterday that the costs to repair hundreds of buildings covered in flammable cladding will be covered, at least partially, by the state government. The initial cost is likely to be $600 million. Andrews has also written to the Prime Minister asking for a further $300 million. Planners at RMIT university estimated earlier this year that the repair bill in the state could exceed $1.6 billion.

This is 7am. I’m Elizabeth Kulas. See you Thursday.

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