(Image via @UrbanWronski)

Martin's resignation signals a chance for the NT youth detention Royal Commission to maintain integrity and effect real change, writes Anna Talbot and Greg Barns on behalf of the Australian Lawyers Alliance.

THE IMAGE was striking in its banality.

Three white men, standing in front of a camera, announcing they were going to sort it out for Indigenous Australians.

Our Prime Minister, Malcolm Turnbull, our Attorney-General, George Brandis and former Northern Territory Supreme Court judge, Brian Martin, would sort it all out.

The problem they sought to respond to was anything but banal. It was the immediate and thoroughly uncontrived national outrage that followed images of children, apparently being tortured, certainly being mistreated, in Don Dale Youth Detention Centre in Darwin. The image of a child, restrained in a chair with a "spit hood" covering his head, was reminiscent of images of prisoners in Abu Ghraib.

In fact, one of the world’s most influential newspapers, The Economist, describes Don Dale as 'Australia’s Abu Ghraib'. These were not seasoned warriors captured by the military in a war zone, though. They were some of Australia’s most vulnerable children. Children let down by a justice system devised by the white man and applying outmoded and primitive 19th century views about how to deal with anti-social behaviour.

There would be a Royal Commission into mistreatment in the juvenile justice system in the Northern Territory, our "saviours" told us. It would be run by Martin, who had been at the apex of the Northern Territory justice system – a small group of lawyers, judges and magistrates – during the first decade of this century. Consultation with Indigenous groups had been minimal. The response had to be swift — so swift those who were best able to frame it were excluded.

Could they not see what we saw? These three white men, positioning themselves as saviours for seriously damaged Indigenous Australians — victims of a failed political and legal paradigm. That this is exactly how we got into this situation: white people trying to resolve problems they do not understand.

Some of the kids in Don Dale are not particularly prosocial in their disposition. They have usually been known to police for some time before they find their way in there. Often, they have tragic backgrounds, being passed around the family group as their care-givers fall victim to substance abuse, incarceration, family violence or one of the other tragic inter-generational legacies of European invasion. They can be violent and abusive to the guards. Some threaten self-harm or harm to others.

It was perhaps on this basis that Martin was appointed. He knew the NT legal system better than most: he had presided over it for years. The very same system, that is, that incarcerated the children we saw on Four Corners and also found a guard charged with unlawfully assaulting a child in Don Dale, not guilty in 2013 and 2014. But for some reason, our saviours did not see that would be a problem. Martin himself had, no doubt, incarcerated young Indigenous offenders.

Caring for kids like these needs a great deal of expertise. The problems that led to them being in Don Dale in the first place are incredibly complex, requiring a rigorous, fair and open minded discussion. Knowing how to work with damaged children, how to respond to their distress and the challenging ways this might be expressed, is essential to ensuring a safe juvenile justice system. It is not surprising that children who find themselves in these institutions exhibit challenging behaviours. Responding to that challenge with violence and restraint, as prison guards have done to these kids, is surely likely to provoke more violence.

The system itself is in dire need of external review. Most guards in this prison never had a chance. They are put in an impossible situation. They are not trained to work with these kids, to diffuse situations, or help give children with no foundation, the steadiness they need to turn their lives around. They, too, are traumatised by what they have done and what they have seen.

There are layers of structural problems that allowed these abuses to happen. The Royal Commission must be fearless in investigating the evidence and making recommendations. It would be surprising if senior officials, including lawyers and judicial officers, and even Ministers, were not named in the outcome report.

These images have captured the world’s attention. The UN Special Rapporteur on torture, Juan Mendez, has said that it is possible torture has been committed in Don Dale. It would be essential to know how the government responded to these revelations, Mendez emphasised. He perhaps was not aware that earlier this year, the Northern Territory government introduced a Bill to formalise the kinds of restraints that were shown on Four Corners. The government in the Territory knew that children were being treated like this: they legislated for it. 

Torture is the infliction of severe pain or suffering for a specific purpose, including punishment. Under the Convention against Torture, ironically in this case, 'pain or suffering arising only from, inherent in or incidental to lawful sanctions' is excluded from this definition. It will be interesting to see how the fact these barbaric restraints were legal, is handled by the Royal Commission.

Within four days, Martin had resigned: one of our saviours was gone. He acknowledged that, if he was to stay in the post of Commissioner,

“the effectiveness of the commission is likely to be compromised from the outset.”

He did the best thing he could do to ensure the Royal Commission has integrity and is in the best possible position to effect real change, by removing himself from it. Mick Gooda and Margaret White have been named as his replacements. In one announcement, the picture of people empowered to examine these problems became a lot more diverse and reflective of what is needed.

This Royal Commission has the potential to do enormous good. It could be, should be, enormously damaging for some very powerful people. For this to be possible, integrity of the inquiry must be paramount. That means no involvement of the NT establishment and no involvement of the NT government. It requires involvement of people who understand not only the justice system in question but the incredible complexity feeding into the incarceration of so many kids in the first place. It will also require political will to effect real change.

The Royal Commission into Aboriginal Deaths in Custody made 339 recommendations nearly 30 years ago, most of which are still to be implemented. The kids of Don Dale deserve more.

You can follow Anna Talbot on Twitter @annacalbot, Greg Barns @BarnsGreg and Australian Lawyers Alliance @AustLawAlliance.

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