Indigenous Australia Analysis

Class action may reform laws for the 'forgotten children'

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Sydney lawyer Stewart Levitt is heading the class action lawsuit against Banksia Hill (Image by Dan Jensen)

Former inmates of the Banksia Hill Detention Centre are planning a class action lawsuit over inhumane treatment and conditions, writes Gerry Georgatos.

*CONTENT WARNING: This article discusses suicide

THERE ARE 18 adult prisons throughout Western Australia – the carceral estate is extensive and expanding – but, in fact, there is only one juvenile detention facility for the whole of Western Australia in Perth. Western Australia’s most vulnerable regional living children are flown to Perth, gaoled at Banksia Hill and disconnected from all familial or other akin supports.

Children, uprooted from their regional living circumstances, may spend months, thousands of kilometres afar, in Banksia. Most are on remand, unsentenced, before being returned home.

More than 100 children each year are flown to Perth. In some years, up to 400 children.

Western Australia needs to urgently reform child bail laws and present more options for children to remain with families where possible. Or to be with identifiable responsible adults and/or invest in safety nets where there are substantive outreach supports, mentors and local secure psychosocial community-based facilities. These are where a child can be aptly nurtured equivalent to what should be in the general community.

Children, as young as ten years old, should not be transported to Banksia, which serves akin as a holding pen and I argue has degenerated to a corral of human misery and suffering, a Dickensian nightmare.

The 2017-18 Productivity Commission’s Report on Government Services identified Banksia as failing one-in-four children in its care at the centre, in that they were not receiving an education. Education is a missed opportunity altogether at Banksia. Assaults were recorded on average every ten days.

Mentoring is another missed opportunity at Banksia and this is inexcusable — in fact, it is reprehensible. Even worse, on average at Banksia, a child self-harmed every two days. In my many years of supporting our most marginalised vulnerable children, in general, kids leaving Banksia come out no better or even worse than when they went in. Testimonies to me and my colleagues, Megan Krakouer and Connie Georgatos (also my daughter), from hundreds of former and recently released Banksia detainees describe the same fails, harrows and horrors.

The forgotten children of Banksia, as I describe them, are our most impoverished children, our most traumatised children. The majority are without a chance at a good life from the beginning — born into multiple disadvantages, into cruel unfairness. I argue that 100% of them have experienced major traumas, many unaddressed. A significant proportion must be recognised as having no safety nets — in fact, many have no parents. Many come in from transience and homelessness and many return to such loneliness.

Western Australia and the Northern Territory sometimes have a reputation for being racist and classist. These jurisdictions are polluted with draconian justice laws. So, in my view, governments spend more on criminalising a child, whether regional living or city living, than it would cost to provide local, wrap-around services for them and their families where possible.

Because these forgotten children of Banksia are failed, thereabouts 70% will finish up incarcerated as adults.

I am haunted by the suicides of 18 and 19-year-old former Banksia detainees who finished up on the avoidable train wreck journey to adult gaols.

I remember foremost not those who I helped but those who we could have helped had we and so many others been resourced to do so.

What sort of society are we when we can’t get the small social reforms in place, can’t get bail laws right, can’t craft and get the social supports right? Why are we investing in bricks and mortar – children prisons – and in prison guards when we should be investing in social care workers, outreach and psychosocial supports? Also needed are social respite workers to take children into a fully resourced positive community facility rich with mentors, with love and salt-of-the-Earth approaches.

If Banksia is seeing off 70% of children ultimately to adult lives majorly incarcerated then this says it all. They’re tragically damnation bound to the most miserable lives. This bespeaks – in fact, indicts – of a broken system that needs to be done away with altogether. It is child abuse. It is evil, not just cruel, because as a society we can do better but instead they are betrayed.

We have a repugnant Australian Senate which in 2019 voted against raising the age of criminal responsibility from ten to 14. Had they voted to raise the age, governments would have been compelled to fund substantive social supports. The Senate voting to keep on jailing ten-year-old children further hurled this nation’s reputation and reality as one of the world’s murkiest backwaters.

Banksia, by no stretch of any imagination, is a psychosocial or psycho-educative facility, it isn’t even an interim safety net. Banksia is a hovel of incarceration. The Banksia experience, in general, diminishes children to the worst of themselves, fast-tracking disaster – some paying with their lives – suicide, grievous misadventure and aberrance, drugs, unnatural deaths.

We have the Palm Island social justice warrior lawyer, Stewart Levitt from Levitt Robinson Lawyers leading a class action in pursuit of compensability for the plaintiffs — the forgotten children. A successful win in the Court would ultimately compel governments to humane ways forward instead of a children’s prison, to a plethora of reforms and to a firmament of social care systems and supports.

Stewart and his daughter, lawyer Dana Levitt, are leading the class action legal team. Senior Counsel from three states will represent the class action once the writs are filed with courts and served. Megan Krakouer, who has an LLB, and my daughter, Connie Georgatos, a law student, are collecting initial testimonies from former detainees of Banksia Hill which was established in 1997. I estimate more than 10,000 children have gone through Banksia.

We were in Geraldton last week, where we took testimonies from more than 50 now registered plaintiffs and many more to come. In total thus far, we’ve registered more than 300. It is my assessment we will have 500 thereabouts within a few weeks and more than 1,000 registered plaintiffs by year’s end.

Late September and early October, Megan, Connie and I will be journeying north to the Pilbara and to the Kimberley and we will return with hundreds more plaintiffs registered. It is moral propriety we invest in this form of outreach because otherwise many impoverished sisters and brothers will miss out.

I remind the majority of the plaintiffs – the claimants – are entrenched inescapably as impoverished and voiceless. If we do not go to them, we betray them and leave them behind. This is not who Stewart and Dana Levitt are, not who Gerry and Connie Georgatos are, not who Megan and Kalisha Krakouer are. We do not leave sisters and brothers behind if we have the capability to do more, to reach them. Kalisha has been a vital logistics support for us in this campaign to reach and register as many souls as possible.

However, the heart and soul of the class action is Levitt Robinson Lawyers and Stewart Levitt is someone I respect above others and trust.

Banksia, because of the looming class action, is making small reforms and hiring more social care practitioners. If we can galvanise this with a class action and some media, imagine what can be galvanised by a successful class action and favourable court rulings. Whereas a royal commission recommends, a court can compel or instruct recourse.

By the time we get to a court ruling, I want to see at least 3,000 plaintiffs swell the class action. Ideally, I’d like to see everyone who has been let down by this children’s prison as part of the class action — I don’t like seeing anyone miss out.

I want to see adequate compensation for each individual to have a better chance at a good life. I want to see the unfairnesses of life many were born into, addressed by some life-changing compensation – and by the imperative of validations of what they have been through – unsupported till now.

Being heard matters; it connects us all. I have been seared emotively by many just wanting to be heard, wanting to see historic sweeping changes and not worrying about the compensability. There have been a lot of tears, outpourings, some healing by the forgotten children being heard.

I believe the class action – the biggest of its type ever – will be historic. I have Parkinson’s Disease and I’m battling, but the calling to do away with children’s prisons is worth every particle of strength left in me.

If we win in the courts, precedents will be set for changes and reforms not just in Western Australia, but which can be tapped into by every state and territory because we shone the light on Banksia Hill. Imagine backwater Western Australia, all of a sudden, hailing forward as the nation’s social justice reformer.

One youth said to us:

“I want to be part of history — that my children one day do not finish up locked up like me from 11 years old. And like my father when he, too, was a kid.”

I will never forget eight siblings orphaned as children after their father’s death and mother’s suicide. Five of the orphans would be incarcerated as children — four of them in Banksia Hill. One of them at age 12, gaoled 12 times in the one year at Banksia. Some of these children were homeless. We are gaoling street homeless children — what’s wrong with us?

We aren’t listening. One of the four, aged 15 years, took his life earlier this year.

Another youth, who is 16 years old, has gone into Banksia Hill already more than 30 times. Banksia is failing our children.

We have heard many tragic, staggeringly harrowing testimonies, listened to the pain and suffering, to broken souls and seen, first-hand, broken lives. It is long overdue for our courts and importantly for the nation to hear in detail the sins, not of the incarcerated, but the sins of a nation that leaves them behind from the beginning of life. This is classism exposed, at its worst, unveiled and understood.

One final story. A mother of nine children, in her mid-30s, was allegedly raped in Banksia more than two decades ago. When her 14-year-old daughter was gaoled in Banksia a couple of years ago, the unaddressed trauma of the alleged rape compounded. The mum could not regulate her emotions, fearing for her daughter. The mum took her life.

We will not abate our sense of urgency. I put it to everyone — our governments do not do enough and aren't fast enough, even if some within believe they do all they can.

We were not put on this Earth to betray our children.

If you would like to speak to someone about suicide you can call Lifeline on 13 11 14.

Gerry Georgatos, the son of CALD migrants, is a suicide prevention and poverty researcher with an experiential focus. He has a Master in Human Rights Education and a Master in Social Justice Advocacy & Civil Rights Arbitration. He is the national coordinator of the National Suicide Prevention & Trauma Recovery Project (NSPTRP). You can follow Gerry on Twitter @GerryGeorgatos.

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