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TRANSCRIPT OF PROCEEDINGS

O/N H-784706

THE HONOURABLE M. WHITE AO, CommissionerMR M. GOODA, Commissioner

IN THE MATTER OF A ROYAL COMMISSION INTO THE CHILD PROTECTION AND YOUTH DETENTION SYSTEMS OF THE NORTHERN TERRITORY

DARWIN

8.34 AM, MONDAY, 26 JUNE 2017

Continued from 23.6.17

DAY 49

MR P.J. CALLAGHAN SC appears with MR P. MORRISSEY SC, MR T. McAVOY SC, MR B. DIGHTON, MS V. BOSNJAK, MR T. GOODWIN, MS S. McGEE, and MS R. RODGER and MR I. CHATTERJEE as Counsel AssistingMS S. BROWNHILL appears with MR G. O’MAHONEY for the Northern Territory of AustraliaDR P. DWYER appears for the North Australian Aboriginal Justice AgencyMS F. GRAHAM appears for the Central Australian Aboriginal Legal Aid ServiceMS BARRETT appears for the Commonwealth of AustraliaMR J.B. LAWRENCE SC appears for Danila Dilba Health Service

.ROYAL COMMISSION 26.6.17 P-4970©Commonwealth of Australia

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MR GOODWIN: Good morning, Commissioners.

COMMISSIONER WHITE: Mr Goodwin.

MR GOODWIN: Commissioners, we have Mr Nate Balis via video link from Baltimore, Maryland, in the United States of America.

<NATE BALIS, CALLED [8.35 am]

<EXAMINATION-IN-CHIEF BY MR GOODWIN

COMMISSIONER WHITE: Mr Balis, can you see us?---I can. I can see you.

Thank you?---Thanks for having me.

This is Commissioner Gooda - - -

COMMISSIONER GOODA: Morning.

COMMISSIONER WHITE: - - - and I’m Commissioner White, and can we say welcome and thank you so much for accepting our invitation to assist us in the work of the Royal Commission?---You’re welcome. It’s very important work and near and dear to both me personally and my organisation, the Annie E Casey Foundation, so I’m happy that I can do it.

Thank you. Yes, Mr Goodwin.

MR GOODWIN: Thank you, Commissioners.

Mr Balis, you’ve given a précis of evidence that you signed on 20 June 2017; that’s right?---Yes.

And annexed to that précis is your curriculum vitae and a list of references to a number of articles and reports?---Yes.

I tender the précis, the curriculum vitae, and the references in full, Commissioners, in one bundle.

COMMISSIONER WHITE: Thank you. Exhibit 576.

EXHIBIT #576 BUNDLE CONTAINING PRECIS, CURRICULUM VITAE AND REFERENCES OF NATE BALIS

.ROYAL COMMISSION 26.6.17 P-4971 N. BALIS XN©Commonwealth of Australia MR GOODWIN

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MR GOODWIN: Mr Balis, you are the director of the juvenile justice strategy group at the Annie E Casey Foundation; that’s correct?---Yes, that’s correct.

And you commenced as a senior associate in that group in 2007?---That’s correct, yes.

And you were appointed director in July 2014?---Yes.

Prior to your work at the foundation, you worked directly in the juvenile justice system in Washington DC for a couple of years; that’s right?---Yes. For five years, yes.

My first question, could you please describe the work of the Annie E Casey Ffoundation?---Sure. The Annie E Casey Ffoundation is the largest philanthropy – the largest private foundation in the United States that focuses specifically on helping disadvantaged kids and families in the country. All of our work is in the United States. The juvenile justice work has been a big part of our foundation for the past 25 years but we focus on all kinds of our issues, including child welfare, which is a big ..... protection is the biggest piece of work in the Ffoundation, and it’s where, really, our work started, when the Ffoundation was started in the 1940s. The modern Ffoundation, though, has existed for the last 25, 30 years, focuses a lot on public system reform with child welfare and juvenile justice at the front of that, while also focusing on community level change, on job promotion and job creation and working families. We have a whole bunch of other projects as well. But we have an entire centre within our Ffoundation that’s focused on our public systems and child welfare and juvenile justice.

A significant aspect of the foundation’s Foundation’s work on juvenile justice reform is the juvenile detention alternatives initiative or the JDAI. What is the JDAI?---So JDAI was started 25 years ago with a pretty simple notion as the country’s detention centres were becoming increasingly overcrowded and increasingly dangerous. It began from a fundamental notion that the reason that they were becoming overcrowded was not necessarily because of the behaviour of kids in the juvenile justice system or the behaviour of kids in this country but, rather, the behaviour of adults and how we were responding to the behaviour of the kids. So it asked some pretty fundamental questions of was it really necessary to be detaining all these kids, was it really for protecting public safety and ensuring that young people were coming to court, or were there other reasons instead. So JDAI, the purpose is pretty simple. It’s to safely reduce the use of secure detention while young people are awaiting trial, or disposition, what we call disposition, or sentencing in court. It’s also – its goals is to reduce racial and ethnic disparities that are so pervasive in the juvenile justice system in the United States, and to ensure that when young people are detained that they are safe while they’re in secure detention centres.

And you listed in your précis the eight core strategies of the JDAI in paragraph 3?---Yes.


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Which includes objective admissions, data driven decision-making and developing alternatives to detention. Does the foundation - - -?---That’s right.

- - - see each of those strategies as essential to achieve the aims of reform of the juvenile justice system as you’ve just described?---Yes. So I think one of the really important lessons from the outset of JDAI has been that the eight core strategies weren’t something we walked into this initiative with. When this was created 25 years, we didn’t have a set of core strategies. They came from the experience in doing this work. And what they really speak to is the importance of comprehensive reform; that if you focus on just one thing, you’re likely to get something else badly wrong. And so, for example, if you develop alternatives to detention, but you aren’t very specific about who are the alternatives designed for, what’s the right population, which kids really need an alternative versus which kids could just be safely at home without one, or which population, if it’s an alternative that’s designed for younger kids, but the population that actually requires an alternative is older kids, you’re going to get it all wrong. So all of those pieces of having objective decision-making criteria, of using data to understand who the kids are, why they’re being, they’re coming before court and coming at the doors of detention, understanding that before you develop alternatives is crucial. You mentioned only a few of them but just as important, of course, is collaboration. The very first core strategy is collaboration. And the reason we bring that up is because one thing that – without knowing the system in Australia enough to know, but in the United States we often have very severe silos where people operate without really working with one another. And one of the things right at the beginning from JDAI has been the lesson that if you want to have effective system reform, if you want to really make sure that you are making the right decisions about kids and to sustain those, that has to be a collaborative process. It can’t just be one judge who has decided, “We are going to stop detaining kids who look like this.” It has to be something that others have come into the process and understand. And so collaboration is also big. I can go through all the disparities but I guess the essential point that I want you to understand is we have always talked about how JDAI is not à la cart. It is not something you can just pick one piece and say we are going to be about detention alternatives or someone else can say we are going to be about case processing. It requires doing all of it. And it requires doing all of it with the eighth core strategy always front and centre, which is a focus on racial and ethnic disparities. Because at least in our country, and I know this resonates in Australia as well, when you come into the detention centres or correctional facilities in our country, they are so disproportionately of black and Latino youth here, in the United States, that if we’re not focused on that then all of the rest of the work could be for naught; we could still be having a system that only has, sort of, further bias and further racism. And so all these strategies have to work together, all with an eye on data and an eye on race.

COMMISSIONER WHITE: Mr Balis, can I ask you this - - -?---Sure.

It’s going back a long time, of course, and before your time, but how did the Ffoundation get the players on board to embrace this collaborative approach?---Yes. So when we first started JDAI, they looked for jurisdictions that might be interested.


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And they put it out and they had people apply. At the time we were ..... very large grants that would be going to planning this type of initiative and again we were doing it without a play book. So these were just people who would be jurisdictions willing to throw their hat in the ring to say, “This is something that we want to try.” And they might want to do it for different reasons, whether it was because of overcrowding, whether they just thought this was the right thing to do, whether they wanted alternatives, but they received very large planning grants to get involved in this work. So when we first started it they weren’t necessarily coming on board with, “We are going to be data-driven” or “We are about going to focus on case processing” or any of those things. That work came about through the process of doing JDAI. They were learning from this – one experience of a county in Florida which had done this before JDAI launched, but really these were the pioneers who were willing to just try new things. The lessons, though, from those initial sites is what really led the comprehensive approach that anyone who followed them was sure to take on.

And those grants came from your foundation; they didn’t come - - -?---That’s right. So – yes. So the Casey Ffoundation gave – I might get the number wrong, but very large grants. Like, $700,000 grants for planning and implementing JDAI in these five urban jurisdictions back in 1992, 1993. That’s very, very different than what happens now when a place comes into DJAI, but because these places were taking on something new they received very large grants as a way of just getting their feet wet and jumping into work that was totally new, totally out of the – you know, outside the box in terms of where this country was. And the really important thing to remember is that the context of the United States in 1992: we were at a peak, we were reaching a peak of juvenile crime, we were reaching a peak of juvenile incarceration that had skyrocketed in the 1980s, and the racial disparities in the facilities were getting worse. And the really urgent thing that the systems were facing was that they were – the detention centres were bursting at the seams. That they had so many kids packed into the detention centres that year after year the number of detention centres in this country that were overcrowded and therefore inherently dangerous was going up year after year after year.

Thank you?---You’re welcome.

MR GOODWIN: And you mentioned in your précis that today many of the core strategies of the JDAI are widely accepted as best practice and industry standard. What do you believe, over the past 25 years since the early 1990s, has been the key reason or reasons for this shift in approach?---Well, you know, it’s hard to say. I don’t want to pat ourselves on the back too much at the Casey Foundation, but I think – I would like to think that a big reason is because it worked. Right. So some of it is because it worked; that these jurisdictions that took this on and demonstrated they could safely reduce detention, these were some of the largest urban jurisdictions in our country. Chicago was – is one of the places. Chicago’s detention centre had, I think, over 800 kids in their facility on any given day. These were big, big places, and they demonstrated they could do this safely without any sacrifice to public safety. It saved money for those jurisdictions which allowed them to invest in


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alternatives. So some of it is just the results. People did JDAI. It promised one thing, really, which was you could safely reduce the use of secure detention. If you go through this process, scrutinise your data, if you come up with a community standard for which kids should be detained and which kids shouldn’t, it will work. And I think people found that it worked. So that’s one thing. I think the other thing, though, that’s always proven real to me – now, I worked in the system, as you said, in Washington DC, and so we were one of the replication sites in 2005. So we were one of the places that took on JDAI at that point. And for me this brought a great deal of hope into what the youth justice system could be. I was an analyst responsible for all of our data in the facilities and could just see what was happening in our system. We were locking up all these kids and we didn’t know why. And I think that there was – the thing that’s proven so effective for JDAI, and again you have to understand this is in – in the United States we’re talking about jurisdictions as big as Chicago, Illinois, that do JDAI, and have done it, in Philadelphia, to places that are small rural counties that might have 15,000 or 20,000 residents in them. This is – and don’t have a detention centre. So – and I think the reason for it, and I think it’s something that’s so important is that if you want to come into JDAI because your focus is really on “I want to improve wellbeing for our kids,” then JDAI makes sense. If you want to come in because you think “All I want to focus on is protecting public safety,” then JDAI has made sense. And if you want to come in because you’re thinking “What I really believe in is good governance; that government shouldn’t waste its funds, that we shouldn’t be spending money to get bad results,” JDAI has made a whole lot of sense. So I think the ideas that seemed radical at the beginning, because people weren’t using data, people weren’t sitting at their computers every day, they didn’t have this type of information. But saying “We should use data to make decisions.” Like, if we’re going to build a new detention centre it shouldn’t just be because we are overcrowded in our current detention centre. That’s not a good reason. That’s only a good reason if there’s good reason to be overcrowded in your current detention centre. But if you haven’t scrutinised the data to understand why are kids being detained in the first place then we shouldn’t build a new detention centre. That is a practice – it’s hard for people to push back about that as an idea. That we should be planful; that we should use data. It’s hard for people to say we shouldn’t have an objective criteria for which kids get detained. One of the first things you do in JDAI is you have a conversation about the purpose of detention. Again, this is something that for most jurisdictions they’ve never done. They have been detaining kids year after year after year without ever bringing together all the people and saying why do we use this place? What do we think is the right reason to lock a kid up, and what do we think are the wrong reasons. And so I think there’s something just so common sense about the approach, that’s made it expand so much. And so some of the ideas might have seemed really outside of the realm of normal practice when it started but I think if we had to explain why has JDAI become so popular in so many different types of jurisdictions, I think it’s because the ideas just make sense.

And can I break down a number of the elements of your answer to that question - - -?---Sure.


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- - - in my next series of questions. First, regarding the diversity of sites, does that diversity of sites therefore suggest to you the ability to replicate the JDAI across different jurisdictions?---Yes, for sure. I mean, it’s just been something that each of these pieces has made sense in jurisdictions irrespective of their sizes. There is obviously a difference in resources from place to place. There is something like detention alternatives. There are some jurisdictions when implementing JDAI might have a lot more funding for detention alternatives than other places do. But most of what JDAI is about is really about practice changes and bringing people together. We give a small planning grant at the beginning which is really about, sort of, helping coordinate work and people, so they get grants for years in JDAI, but it’s a limited amount of money. It’s not going to help people implement a program. But it will help them coordinate meetings, coordinate travel to go to model sites to see what other people are doing ,coordinate travel so people can go to conferences. But I think we found that this has just made sense in all kinds of jurisdictions, and the reason we are in 300 places in this country is because something that was designed initially for urban jurisdictions – that was who took it on – has made sense in rural America. Otherwise we would never be in this many places. And most of the expansion in recent years has been – while states within our country, places like Indiana, Missouri, New Jersey have expanded from their initial bigger jurisdictions to many more within their states.

And to briefly go to the results data that JDAI collected, JDAI sites that reported in 2016 had on average reduced their average daily population by 43 per cent, reduced their annual admissions to juvenile detention by 49 per cent, and reduced juvenile crime by more than 40 per cent. Is it right to therefore conclude that the JDAI has been demonstrated to not only reduce the number of children in detention but achieved a commensurate increase in community safety?---Yes. I mean, I think the goal from the outset was that you could do these things and you wouldn’t harm public safety. And I think what we found is that jurisdictions that have been doing JDAI have found just that; that they have seen as their population has gone down, crime has gone down as well overall. And, I think, more importantly, that they can feel that when they’re keeping kids at homestead of locking them up, that those decisions were safe, especially for kids who might be more on the borderline of that, of looking at – that they have alternatives for them. But you have to remember, I mean, yes, the data is a glaring success in that regard. Crime is down and detention is down. But I think what’s really important, and this gets back to the data, is there is no reason to believe, once you scrutinise the data, that keeping certain kids out of detention would have any impact on crime at all. When you’re locking kids up for technical violations, right, they’re missing curfew at home, or they test positive for drugs for smoking marijuana or something like that, if you’re locking kids up because they’re skipping school, or you’re locking kids up because they’re talking back to their parents, you know, there’s a certain disconnect between what these detention centres were initially created for and then how they’re being used. So there’s no even logical reason to believe that you would let those kind of kids go and it would lead to some spike in serious crime. We’ve always said, JDAI has never been about abolishing the use of secure detention. Right? It’s never been the purpose. There are places where detention centres have closed because they simply


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haven’t needed them anymore, because they were using them for the wrong reasons in the first place, and the population went down enough that there was no need to have a detention centre in their counties. But we start from a premise that some kids, for at least for a short period of time, may need to be securely detained, but it’s – our experience is almost never the number of kids who are there when we’re looking at the population today.

Can I then ask some questions, tracking through the journey, so to speak, of a site that has just signed up to JDAI?---Sure.

You mentioned earlier the importance of an initial community discussion regarding the purpose of detention. Could you please expand on the importance of that as an initial step?---Yes. Again, I feel like at a certain level one of the things that – I think people who sit outside the juvenile judge system probably assume that everyone is on the same page; that all these people day after day see each other, the defence lawyers, the prosecutors, the judges, the probation people, the detention director, the people who work in the facilities, the community-based programs, the neighbourhood organisations. They’re around each other all the time. And so people who just never think about juvenile justice probably assume that all these people are on the same page about “We have this thing called a detention centre and this is what it’s used for.” But that’s rarely the case. And often times states in our country have very specific language around what detention should be used for and it would be hard to argue that the kids were being locked up on any given day or there for those reasons. And so having a purpose of detention conversation just gets everybody on the same page right out of the gate. And it’s an important step, because – and you might be getting to this, but because of the objective screening process for kids and detention, understanding that purpose is front and centre in developing an objective screening tool. So it’s just very key that if you’re going to start work that you know what it’s about and part of why I think it’s important is because some might walk into something like JDAI and assume that the reason for it is because it’s like a jail break. Right? Some are saying “What you really want to do is let every kid out.” And then the purpose of the detention meeting allows people right from the start to say, “Hold on, that’s not what we’re talking about. What we are saying is kids who look like this, kids who don’t pose a public safety threat, kids who aren’t a threat to fail to appear in court,” that’s who we’re talking about.

COMMISSIONER WHITE: Mr Balis, who, in your experience, are the invitees to this initial conversation a jurisdiction might have?---So, the people I named are almost always the ones who you’re going to have at the table for that initial conversation. You’re always going to have judges at the table. Judges are – they make the decisions, right, so they’re going to play a big role. Juvenile probation, who supervises kids in the community, often times plays a lead role in this work and it’s also because they – at a local level, that’s where the personnel of the system is. I mean, that’s just where the main folks are who work in the system. You’re always going to have the people who run the detention centre. So the superintendent of the detention centre himself. Prosecutors are incredibly important and prosecutors are often times resistant, at least at the outset, because this sounds like something that is


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meant to push back against their authority in the system and I think sometimes prosecutors are the hardest to win over. And sometimes prosecutors become the biggest advocates of this work. Defence attorneys definitely are going to always be at the table. And police will usually be at the table at the outset. What we’ve increasingly found, though, and one of the things about the initiative that’s really – it’s always evolved, so whereas I think this at the outset was very much a sort of – government bureaucrats were the people at the table in the room. Increasingly, we’ve found that more and more sites have seen the wisdom from the outset, including lots of members of the community as part of this process - - -

Yes?--- - - - whether it’s families that are impacted by the system, whether it’s community organisations that are both service providers, as they can potential detention alternative providers or they’re just local churches or other organisations that are working with kids. We would like to see increasingly that young people themselves are part of the collaborative, because I think sites find that they learn a whole lot from listening to young people who have actually experienced the juvenile justice system. But all of those different people would be at the table.

COMMISSIONER GOODA: Mr Balis, did you talk about racial minorities making up a bulk of the prison, of the detention population. Did those minorities get involved in – minority groups get involved in this process as well?---Yes. I mean, part of effective collaboration, from our perspective means having – you know, we were saying having the right people at the table. I have certainly been in communities, even within our network, where you walk in a room and the first thing you notice is that most of the faces are white, even though the kids in the system are not. But that is rare. And overall, the goal would be for the people in the room to reflect the population of the kids who are in the juvenile justice system and so it really depends from jurisdiction to jurisdiction. But that is certainly something that, in our technical ..... that we would focus on, is making sure that the people in the room are there. And I hadn’t really been that clear about that aspect of this, but we don’t just give people all those great publications and a grant and say, “Go at it.” This is – they get a consultant as a team leader who steers them through this process. And a big part of that, their job right from the outset, would be to say, “You’ve got the wrong people engine room. You need to get other people at the table.”

Yes. And in this jurisdiction, where the Royal Commission is taking place, we have got up to 97 per cent of detainees being Aboriginal. So - - -?---Yes.

- - - would you say it’s important that Aboriginal people are totally represented in those groups?---I would say we hope that they would be represented in that, in many cases they would be leading those conversations. And I think the legitimacy of any of these types of efforts depends on who is in the room. And it doesn’t – that doesn’t guarantee success, but it’s critical. Washington DC increasingly is a jurisdiction that has become more and more white as a jurisdiction, as it’s had more and more gentrification. When I worked in the system in five years that I was there, I’m not sure we ever had a white kid in detention the entire time I was there. We had a 100 per cent minority confinement while I was there. And that spoke volumes about the


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problems that the system had, and also about the possibility of keeping kids out of detention because obviously we are doing a very good job of keeping white kids out of detention. And so – but it was very important for the people to feel that the voices in the collaborative, the voices on the committees and all that could speak to – represented the communities that were affected and impacted by the youth justice system. Very good point.

MR GOODWIN: That process of collaboration then leads to the development of objective screening tools for dealing with young people - - -?---Yes.

- - - who may have offended. Could you explain what an objective screening tool actually is?---Yes. So, you know, there’s a lot of kinds of tools at different parts of the system in our country. We have gotten very tool crazy here about how we do things. And some of them are built in a very sort of scientific way where it’s aimed at looking at studying long-term recidivism of which kids will be most likely to be re-arrested and then developing tools, depending on that. Those are used at the sort of sentencing end of the system. The screening tool process for JDAI has really been made to – was designed to further that collaborative conversation, meaning that the development of the tool itself is part of what makes it important. So I’m stressing that because sometimes jurisdictions will look to see what someone else has done and say we could just pick that up off the shelf and implement that in our jurisdiction. But what that often times misses is that the development of the tool is the conversation that a jurisdiction needs to have. Because, essentially, and I believe that you’ve looked at some and you might have ones that can be shown Commissioners - - -

I will bring one up now. It’s page 11?---Okay.

Page 11 of the juvenile detention risk assessment number 1, a practice guide to juvenile detention reform. It’s an example risk assessment instrument from Santa Clara County in California?---Okay. So – I’m not seeing it on the screen. I’m seeing black thing on the screen, but that’s okay. I can talk about the process and how - - -

It’s – hopefully it will come up while you’re – yeah. It has just come up now?---Okay. There it is. Okay. Great. So – yeah. I can see that there. So this looks kind of standard for the way some of these might be made. And so what they’ve typically done is you’re trying to set a – what’s the threshold for when a young person should be detained. They’re done differently from place to place, but what I think is important to understand is that they’re designed to create a community standard that says on the night that a kid gets arrested, because think – the way this is typically used in a jurisdiction here means, you know, right now it’s 7.30 on a Sunday night here in Baltimore. There’s nobody – no court is going to be open tonight. So if a young person gets arrested right now, in Baltimore, they’re going to be brought in front of someone who is going to screen them in, using a tool just like this. And they’re making a decision tonight, “Is this kid going to be detained, are they going to be released home, or are they going to be released to some kind of alternative to detention?” If they’re detained in Baltimore, tomorrow


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morning they’re going to see a judge, and then the judge is going to decide whether to keep them detained pre-trial. But tonight there is going to be a decision made that in many ways is a life-altering decision for a young person: do they stay home with their family, or do they get locked up? And so that decision is so grave in some ways, so important, that there ought to be objective criteria. So what you’re seeing here as an example: typically the offence is the very first thing that you’re going to see on there. And what might happen from place to place is that the – depending on how they do it, the top offence category you will see will itself equal the threshold for detention. In other words, if – I see here possession of a firearm. So let’s just say, possession of a firearm, they’ve decided, as a community, if a young person has a gun tonight, he gets detained. That’s what they’ve decided. So they will make that offence reach the threshold of detention. Otherwise, you see, the offences below that would be ones that you’re adding up the points. So you’re adding up points for a current offence, for prior offence history, again for any aggravating factors. They might have mitigating factors, right, that this one does. So you might get points going in the opposite direction, you could get negative points instead, depending on the place. I think you can see that here: it’s A plus B plus C minus the mitigating factors will get you a score. And that score will typically fall into one of three categories for a kid. The highest level would be detain, the lowest level would be release, and the middle level would be release with conditions where there’s going to be some kind of alternative in place for that young person. That’s typical of how it works. What some places might do is they might have the scores add up and then they might have automatic – you see at the bottom here that there’s these detention overrides. You might have automatic overrides from one jurisdiction to the next. So it might be something like a certain type of offence automatically overrides a kid into detention, or if there was a warrant out for their arrest they might decide automatically they’re in because of a warrant. Even if the points otherwise don’t add up, they might just say automatic. There’s also discretionary overrides, where they might decide even though the points don’t add up we are holding them tonight. If a site is overriding this tool too often then we would say it’s the wrong tool. It’s either the wrong tool or it’s the wrong process; they’re doing the practice all wrong. So it’s a good test looking at the data, “Are we actually following it or are we not following?” Some of the things you see here, I would say, for example, in detention override section – it’s interesting, because I think it’s an important one to think about how this is evolved over time. None of those reasons, to me, are good reasons to detain a kid. So the fact that the responsible relative cannot be located is not a good reason to make a kid go to jail. The fact that a relative refuses a kid is not a good reason for them to jail, and the fact that a kid doesn’t want to go back to his home, because maybe the home has been an abusive situation or something else is going on, is not a good reason for him to go to jail. So this is where alternatives really come into play. First and foremost, what is our definition of family. And I would particularly – with 97 per cent rate among a particular population, that might be an especially important question to ask: what is the definition of family in this case? Because a kid might have a sense of family that goes much, much broader than his parent, but sometimes laws are drawn here that say they can only be released to their parent. So that’s the kind of thing that going through the process of JDAI would make people question. Maybe we need to expand. If we are seeing a lot of kids


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getting detained because we can’t find a parent then maybe we need to think of a different way. Similarly, if you are seeing a lot of domestic violence, right, this might be the kind of special detention case that’s one of the ones that we – one of the core strategies – you have a lot of domestic violence cases. And in some places in the United States, and I don’t know if this is the case there, they have laws that the police have – whether it’s laws or the police have rules, that say if they make a visit to a home and there’s a domestic battery situation, there’s violence in the home, they are going to take somebody in. And if it’s a home that that has three kids and one parent, they’re not going to take the parent. They’re going to take the kid. And so we see that happen in place after place. So what do you need to do in that situation? Well, maybe the kid doesn’t need to be – can’t go home, but he shouldn’t be detained. So there has to be an alternative setting. So maybe there’s a shelter for an evening. Maybe he is placed with a kin, placed with a relative. So those are the kind of things that would come about in this process in both developing the tool but then looking at the data to see why we are detaining so many kids that didn’t meet the threshold of the screen tool.

And can we turn then – you’ve mentioned a number of times the need for alternatives to detention, can I ask what you mean by that concept and what’s a best examples of alternatives you’ve seen jurisdictions develop?---Yes. So, yes, it’s a great question. So, again, the premise of an alternative – these are short-term alternatives. They’re not meant to be for ever. Right? These are meant for during that brief period of time when a young person would be going to court. And usually they can prove pretty quickly that they don’t even need the alternative for very long. One of the most common alternatives in our network has been the development of evening reporting centres. Now, evening reporting centre, this is, like, it’s just a very basic concept, but it was revolutionary when they created them in Chicago, and now they’re all over the JDAI network. The basic idea of the evening reporting centre was “What are the hours that kids actually get arrested?” Right? And I don’t know what it is there, but most of the kids are getting arrested in the hours between when school ends and when they go home at the end of the day. So the idea of the evening reporting centre was simply to say “Take the kids out of commission during that time.” Right? They’ve been at school. That’s one of the conditions of their release. They pick the kids up in a van at school. They bring them to a place and at that place they do their homework. They do activities. They hang out. They give them dinner usually. And then they drive them home and they go home at like 9 o’clock at night and they go to bed. And so the evening reporting centre is just like a very, very basic idea, but because it has been such a basic idea, it’s made a lot of sense as a detention alternative. Other places – a detention alternative might be to simply say – they might not need a place but they simply set rules on the kid to say “You are to be at home between these hours” and sometimes it just says someone is going to check on you, curfew every single night. Other places have used electronic monitoring, which is not a great option, but it might be a better option than detaining kids. Some would assign an advocate or somebody who is there to just keep closer track of them, make sure they’re going to school every day. One kind of alternative has been one for kids who, if they’re concerned – the main concern wasn’t that they’re going to be re-arrested, it’s about failure to appear in court, was simply to have better ways of


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notifying kids to remind them that they have a court case. I don’t know how many of you in the room have teenagers or who have had teenagers. I know you have all been teenagers. But teenagers don’t remember anything. So the idea you would tell them, “You have a court case from three weeks from now. Make sure you appear at 9 o’clock in this place” is a completely unreasonable expectation for a kid. They need reminders. So you need to have ways of doing that. So sites have found all kinds of ways of reminding kids. So there’s all kinds of things you want to do. And the main thing is, again, you want to look at your data. Because if you think that the important thing is we need to put kids on electronic monitoring all day every day, but the real thing you’re finding is all the kids get arrested between those hours of school and when they go to sleep, then maybe evening reporting centre is a much better alternative and one that’s a lot less correctional in its nature. So there’s where you see the different things coming together of data, looking at what’s going on. An evening reporting centre should be in the neighbourhood where the kids live. So it shouldn’t be somewhere far away that makes it more difficult. You want it to be close to the school, ideally, and close to where the kids live. So if all your kids are coming from a few different neighbourhoods then focus the alternatives there.

In terms of the reform process that we have discussed up to this point and particularly the development of alternatives, does reform come – in your experience, does reform come at great expense to the jurisdictions the JDAI has worked with? Put bluntly, does the reform process cost a lot of money?---Yes. It’s a great question. Again, most, most of what JDAI is is not about finding new dollars. It’s about changing practice. It’s about having better decision-making processes by all kinds of people. And those aren’t expensive. And those things are covered really through the process of being a site, like, being a jurisdiction taking this on, because they can get technical assistance that help them do that. So, for example, using an objective screening tool at the point of the detention decision doesn’t cost any more than having that person make a gut decision based on what they’re seeing. Some of the decision-making work of JDAI has the potential of saving lots of money. And if it saves money, it’s money that can often times be reinvested. Now, this can be very tricky depending on the jurisdiction. But, for example, we have a state like the state of New Jersey here in the United States. New Jersey is a JDAI state that now has JDAI in all 21 of its counties, which is our local level of government. Before starting JDAI, 17 of those counties, 17 of them, had detention centres. They have since closed eight detention centres. So that’s obviously saved all kinds of money that can then be put into our functions. Other things that places have done: so you have jurisdictions that have closed units in their detention centre and have had to make a decision about what are they going to do with their staff. And sometimes it can be a tough decision, or they’re even unwilling to want to lay off staff, to fire them because of closing detention. You might have unions that oppose that and all those kind of things. Sometimes they repurpose the jobs. So they say, “Your job was to work with kids in the detention centre but now your job is to help supervise kids in the community while they’re out.” So people have found different ways. It obviously helps to have funding for detention alternatives and many places have invested in that but they’ve often seen that as an investment that saves them money because they’re not detaining kids which costs a lot more. You know, it can cost $100, $200


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a day to detain a kid. So keeping them out oftentimes is a much more effective alternative, not just for the kids, but for a system that doesn’t want to spend money on something that’s so ineffective.

COMMISSIONER WHITE: Can I just ask you this question, Mr Balis. Looking at your – the report of insights from the first 25 years, there seems to be a suggestion that the data is showing a certain flattening out, and some concerns about whether there’s another way of collecting data to measure results and things of that kind. I wonder if you could just tell us a bit about that thinking?---Sure. So this is really our push to our network, you know, to say this has been a great success and it needs to be better. And I think one of the things that is a challenge is that when almost every jurisdiction in JDAI has dramatically reduced their use of secure detention, the urgency, the urgency to keep pushing diminishes over time in a lot of places. And leadership changes. People retire and new people come on and you need to convince new leaders what do. Judges change. You know, all this kind of stuff happens. Some of the issues I just won’t bore you with, but really just have to do with when you have expanded an initiative this big, our demands for things like data have been very minimal and they haven’t allowed for the kind of analysis we might want people to have or a kind of scrutiny of data that we want. So some of the things that we’re talking about – we’re wanting to look further at things like race. We made the determination earlier on to keep these two very broad categories of, sort of, white non-Hispanic youth and youth of colour: that’s not good enough anymore for us. So we want to push that further. As you can see, one of the findings in there, it has to do – and when I was talking before about the urgency, is that the detention admissions have continued to fall across the network. But length of stay has started to go up in many places. And this is an important thing to understand for a lot of reasons. When jurisdictions first started JDAI, and their detention centres were overcrowded and there was a day-to-day basis that they were looking at the population and scrutinising who is there and who can leave, it wasn’t just a focus on keeping kids out. There was a big focus on getting them out. Right. Once they were in. If your jurisdiction is reducing the population by 40 per cent, 50 per cent, 70 per cent, so much of that focus has become on keeping them out. And there hasn’t been that same urgency to say, “Man, these kids are now staying a few days longer.” A few days meant a whole lot were when you were at 110 per cent capacity. But when you’re at 30 per cent capacity that urgency can go away. So that’s kind of part of what we are pushing on. And part of it is to look – to scrutinise the data more to understand why kids maybe staying longer. There could be some good reasons that kids are staying longer that we actually would applaud and there could be reasons that have to do with the population that’s there now really is the more serious population, and those cases take longer to process in court. It’s possible. But what we are asking from the network is to scrutinise that data in a way that they haven’t done at this point.

Thanks, Mr Balis?---Sure.

MR GOODWIN: And can I build on the back of Commissioner White’s questions on that report and discuss the issue of racial and ethnic disparity?---Sure.


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Over the past 25 years, although JDAI sites have seen a significant reduction in the population of young people detained, racial and ethnic disparities have remained constant. What, in your experience, are the issues that drive that disparity?---So, you know, this is for someone – or my research and undergraduate has – was focused on race and racism in this country, and where I’ve seen it in a million ways in our juvenile justice system, it’s the most disconcerting part of this job. It’s – that our juvenile justice system, on the one hand, I think what we should feel somewhat happy but not nearly happy enough, that as juvenile incarceration rates have dropped so dramatically in this country, that they have largely dropped sort of proportionally by race. Black and white youth have seen roughly the same drop in the detention rate in this country. The challenge with that is that white youth will make up a smaller and smaller part of the population and so even a proportional drop will mean that we see more and more, as we refer, youth of colour in our detention centres year after year. So I think why it’s challenging is on many fronts, and it could be its own whole two-hour conversation. The hardest thing is that it’s not a space that people have scrutinised their data enough to understand what are the issues that are driving particularly black youth and Latino youth in this country into detention at higher rates. Usually when sites come in, the assumption that they come with right from the bat is it has to do with the offences. They have more serious offences and they offend at a higher rate. The challenge we have is that even if they are arrested at a higher rate, it doesn’t mean that they offend at a higher rate. And so the front door is typically the biggest leap in where the population goes. And what I mean by that is the number of kids in any jurisdiction who might be black or Latino is much – almost always much smaller than the number of kids who are arrested in those jurisdictions. So there’s an issue at the point of police that is a pretty big one. What’s challenging, of course, though, is that part of the policing issue is that police are – the way they’re dispersed around the jurisdiction is targeting neighbourhoods that have higher levels of crime and it’s targeting neighbourhoods that have all the other systemic problems that also target those same kids: highest levels of poverty, the worst – the schools that are most likely to be failing, highest rates of kids involved in the child welfare system. And so I think what’s challenging and where I think sometimes places feel stuck and where part of our challenge is to get them unstuck, is that the issue of racial disparities in our justice system is so structural and systemic in this country that places feel overwhelmed by it; that getting started hasn’t felt good enough. What I have found though is when places are truly dedicated and they truly look at the data and they’re willing to scrutinise particular offences and understand why it is that certain kids are more likely to be detained than others or looking at those rules, like, that was a great example of looking at rules that said, “Well our rule is that only kids – the only way a kid can be released is if they’re released to a parent, a mum or a dad.” And if they were to find that that is having a particularly harsh disparity racially, then that would be all the more reason to scrutinise that practice and say, “What are we doing? Why do we have this rule? What is even the reason for this rule? Couldn’t we be more generous, and what would be the impact? What do we think would happen?” And so we definitely need more intentionality within the network of focusing on racial and ethnic disparities, but there are also bigger societal issues at play that unfortunately we are not addressing on a lot of other fronts as well. We just released a practice guide, and we’re releasing the full guide later this


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summer, but we released a summary of engaging law enforcement in detention reform. And the reason we did that is because we see so many disparity at the point of arrest that it seems more and more important that we focus our attention on policing. Similar to that, I don’t know if there is an issue where you are, but we increasingly have police officers who are stationed in our schools. But they’re not stationed in all schools. And so if the way that they’re again deployed in schools is precisely patterned by race, then we’re going to see more kids of colour come into the system. And so those are the kind of policies and practices that we’re challenging as well. And all of that needs to be .....

MR GOODWIN: My final series of questions are about your comments in your précis that highlight that the foundation is part of a campaign to end youth prisons, as you term it?---Yes.

Although you mentioned there will be – that the foundation does not advocate for the end of some form of secure placement for young people?---Yes.

Could you please explain the background to that movement?---Sure. Sure. So, you know, I think – I will just say part of that I will just explain personally, which is to say that as we’ve worked in place after place around the country and can feel proud of having successfully reduced the number of young people who are in detention, the number of young people who are incarcerated or otherwise put in some form of out-of-home placement, in many ways we have somewhat intentionally ignored the conditions of the kids who are incarcerated because from a perspective of limited resources we wouldn’t want the system to be focused on, as my predecessor would say, building a better mouse trap. Right? The goal should be keeping the kids out, keeping them in their communities, in their schools, in their homes. And we just know what happens when a system gets focused on one thing, and we’re going to improve the conditions, that’s where the money goes, that’s where the attention goes, and no one is scrutinising who is going in in the first place. So we have made a strategic decision in the past, often, to not focus our attention as much on the conditions of where kids are. And yet, as – if you haven’t looked at it, you could look at it: we released a report called “No Place For Kids” about seven years ago and a follow-up two years ago called the Maltreatment Update. And what you see in state after state in this country: it’s a norm for there to be systemic maltreatment of kids who are locked up in facilities in this country. And it’s one of those things that our general public is not thinking about, and yet you can see it in place after place after place: when they have an especially large prison-like facilities, the kids get hurt. The rate of sexual abuse of kids in facilities is unthinkable to most people, if they had to look at it. So all of this raised the question of how can we, whilst continuing to focus on reducing the number of kids who ever would get locked up, investing in alternatives as well, how can we also say it’s not acceptable, even if a kid is going to be incarcerated, is going to be locked up, it’s not acceptable for any kid to be in a facility that abuses him and makes him unsafe. And more importantly, on top of that, it’s not enough just for them to be safe. If that’s our only standard, then we are setting the bar way too low. Kids should be in environments that are developmentally appropriate, right, that are focusing on helping them become


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educated, helping their – change their behaviour and changing their thinking and getting them prepared for a life outside a correctional institution. And I think, as you know, we have talked specifically about a state, Missouri, in our country. And one of the things that’s front and centre - - -

Yes. Could you tell us more about Missouri?---Yes. Yeah. So one of – well, I will first say with Missouri’s starting point, what I have heard from people in Missouri, two things I will say which I think get at the flavour of Missouri. One was from a young person who experienced being locked up in Missouri. And what he said was for a staff person to work in a facility in Missouri, they have to believe that every young person will succeed. And that was a profound statement because it’s a simple one but it’s clearly not the way that prisons are designed. They are just simply not designed for kids who we believe will succeed. We just would not subject them to that condition if we thought that that was a kid with a future ahead of them. I think that that’s the – at the core of Missouri is that. Second thing I will say about Missouri, and then I will explain it in more detail why it’s meaningful, is Missouri has this concept that I think – I have always loved this idea. If a kid goes to state corrections in our country, it’s often the term is that they’re committed to state Corrections. What Missouri will often say is when a kid is committed, that is the punishment. The act of being committed is the punishment. They’re being removed from their home, taken out of their community, taken away from their friends and their school. That’s the – but for Missouri, that’s the end of the punishment. Everything else that happens from that day forward is about helping the kid, helping them develop, rehabilitating them, educating them, reconnecting them to their families. So that’s such a different framework than what the prison model is about, which is about control. Right? We get safety through security. We get safety not through relationships, but we get safety through, sort of, restraints, through isolation, through settling everybody down. That’s how we get safety. Missouri, it’s all about – they often talk about eyes-on, ears-on, hearts-on supervision. The focus is on actually engaging with the young people themselves, as crazy as an idea as that might be. Engaging with them, where you can see problems starting before they happen. So you shouldn’t have to restrain kids all the time. You shouldn’t have to isolate them and lock them in cells when you usually can see issues with kids developing from the outset. And so the best thing I can say, the easiest thing I could say with Missouri is there is just a certain humanity in their approach that is far too often missing in what youth Corrections looks like. And you can see it in the data, in the data in other jurisdictions when you see this level of maltreatment of kids. But it’s – the hardest part to talk about it is that in many ways, what we see is it’s so qualitative. It’s harder to put in just the, you know, sort of measurements that you would put in terms of what does a facility do, but just the feel, you know, the kids wear their own clothes and staff wear their own clothes. So it’s just from the outset, it feels different. The kids have regular beds, just normal beds with normal comforters and stuff, and they sleep in what looks almost like a camp in how you would do it. They sleep in bunk beds and they have regular living spaces. So it’s just sort of – it just feels different and it’s just not correctional. And they will tell you, safety is their first priority. They’re always looking at what’s going on but safety doesn’t come from putting more and more constraints on the kids. Safety


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comes from staff being trained, being vigilant and building relationships with the kids.

And that leads me to my final question. You state in your précis that JDAI is not aimed at changing the behaviour of young people, but of the adults that make decisions about them. That has been a theme in your evidence. Can you just briefly - - -?---Yes.

- - - explain why that is so essential to reform of a jurisdiction?---Yes. So I am smiling because as you can imagine that’s not always the most popular thing to say when you walk into somebody’s courtroom and you say to a judge, “The kids aren’t the problem. You’re the problem.” Right? A nicer way of saying is we are about changing the behaviour of the adults and not the behaviour of kids. But you can imagine that it doesn’t always sit well. But the point is kids will be kids will be kids. For every generation people will say, “These kids today, what are we going to do about them?” And it’s always, “The kids today are different than the kids were in the past.” And that is the same story in every place around the world and generation after generation after generation. We know that kids will do things that we don’t like. We know sometimes they will do things that are dangerous. Our job is to make sure that we’re making decisions that are based on the right data, the right criteria, and that we are being clear about those criteria, and that we are the grown-ups, not the kids, and that we understand adolescent development and the way that they work and we react appropriately. And so I think what happens, and the reason why I say about changing the behaviour of the kids versus the adults is that, as you can tell from the name of JDAI, the Juvenile Detention Alternatives Initiative, as you might imagine, people get most excited about that word: alternatives. They feel like we don’t have good programs and if only we had programs, we wouldn’t lock up so many kids. And I can tell you that that is wrong – that that is wrong. That programs, as the thing, “If we just had a program we wouldn’t do it” is wrong. And I’m saying it’s wrong because it assumes that the program is the magic bullet that’s going to save everything. And that’s never the case. It’s never the case. And I think jurisdiction after jurisdiction that we work at, when they scrutinise their data, when they actually look at their decisions, when they look at themselves in the mirror and say, “Do we really want to be doing that? Like, is that really the kid who ought to be in the detention centre?” When they ask themselves those questions and they do it over and over and they do it collaboratively and they challenge themselves, the kids can keep doing the same stuff and you can dramatically reduce the number of kids who are in secure detention and do so in a way that in no way harms public safety.

Thank you, Mr Balis. Those were my questions, Commissioners.

COMMISSIONER WHITE: Yes, thanks Mr Goodwin. Mr Balis, Commissioner Gooda and I are really grateful to you for troubling to put together your précis and then for spending an hour on a Sunday evening with us here in Darwin. You have given us lots of things to think about. Thank you?---You’re welcome, and it really is my pleasure to do it.


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COMMISSIONER GOODA: Thank you?---Thank you.

COMMISSIONER WHITE: We will close the link now.

<THE WITNESS WITHDREW [9.39 am]

MR GOODWIN: Thank you, Commissioners. Now, there is a personal story ready to play. Today, our personal story is that of a grandfather, DX. He tells the story of his grandson who lived under the care of his grandmother until her death. DX recounts the boy’s struggles after the death of his grandmother and how he entered the care of DX and his partner. In his personal story, DX talks about the day his grandson was removed from his care whilst the boy was at school and then flown to Darwin. If we could please play DX’s story.

RECORDING PLAYED

MR GOODWIN: I think now we - - -

COMMISSIONER WHITE: Close the court.

MR GOODWIN: Yes. There is a closed court, so the typical process of adjourning.

COMMISSIONER WHITE: We will adjourn for 15 minutes until the hearing room is changed for closed court. Thank you. If you will adjourn.

ADJOURNED [9.47 am]

CLOSED SESSION ENSUED

[REDACTED INFORMATION]

PUBLIC SESSION RESUMED

RESUMED [11.01 am]

COMMISSIONER WHITE: If you could kindly stand, Mr Tongue. Thank you.

.ROYAL COMMISSION 26.6.17 P-4988 ©Commonwealth of Australia

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<ANDREW TONGUE, SWORN [11.01 am]

<EXAMINATION-IN-CHIEF BY MR CALLAGHAN

COMMISSIONER WHITE: Thank you. If you would kindly be seated.

MS BARRETT: If the Commissioners please, my name is Barrett. I appear on behalf of the Commonwealth.

COMMISSIONER WHITE: Thank you, Ms Barrett. Mr Callaghan?

MR CALLAGHAN: Your full name is Andrew Tongue?---Andrew Tongue. Yes. That’s right.

You are presently the associate secretary of Indigenous Affairs of the Department of Prime Minister and Cabinet?---Correct. Yes.

And your duties include responsibility for leading policy program and delivery reform in Indigenous Affairs in line with Commonwealth commitments in that area?---Yes, that’s correct.

And you’ve been in that role since 1 July 2015; is that correct?---That’s correct.

You have prepared, I think, two statements for the purposes of the Commission. Is that correct?---Yes, that’s right.

We will just get you to identify those one by one. That is the first one, I think, which is 15 June, 2017, is that right?---Yes, that’s correct.

I tender that.

COMMISSIONER WHITE: Exhibit 578.

EXHIBIT #578 STATEMENT OF ANDREW TONGUE DATED 15/06/2017

MR CALLAGHAN: And a second statement dated 21 June 2017; that’s that one?---Yes, that’s correct.

I tender that.


.ROYAL COMMISSION 26.6.17 P-4989 A. TONGUE XN©Commonwealth of Australia MR CALLAGHAN

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MR CALLAGHAN: Now, Mr Tongue, your statements refer to an appendix, appendix 1, which is actually only in its full form electronically; is that correct?---Could well be the case, I think, yes, that it’s a quite large appendix as a spreadsheet, is my memory.

It is. We might show you a print out, which is not the whole thing, as I understand it, and it has also been printed in a font which is barely legible. But that’s a print-out of at least part of appendix 1; is that right?---Yes, that’s correct. Yep.

I will tender that.

COMMISSIONER WHITE: As a separate - - -

MR CALLAGHAN: As a separate exhibit.

COMMISSIONER WHITE: Yes. Thank you. That’s the spreadsheet in its entirety, Mr Callaghan?

MR CALLAGHAN: Not in its entirety. That’s a hard copy of part of the appendix 1 that’s referred to in the witness’s statement.


EXHIBIT #580 EXCERPT OF APPENDIX 1 PRINT OUT

MR CALLAGHAN: And, Mr Tongue, you’ve placed some qualifications upon the data in the full spreadsheet; is that correct?---Yes, that’s correct.

But one thing that does appear from sheet 1 of appendix 1, and I might get you a copy of that, if we can. Have we got a separate copy of that. It’s on the screen. What appears on the screen is sheet 1 of appendix 1?---Yes, I’ve got that.

The 2016/2017 funding has been included, we are informed by the third bullet point on the top, is that right?---We were asked up to 15/16. Where we could, we provided 16/17 but I would note that 16/17 needs to be updated to reflect the latest figures.

And am I right that, for example, the Aboriginal benefits account to Northern Territory Land Council’s figure, which is actually the last one - - -?---Yes.

- - - at the bottom of that table, is one of the figures that might be yet to be added in; is that right?---Yes, that’s right.


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But is there much more?---I’ve asked for the table to be updated while we’re here. I anticipate some more, yes. Not every field but some more.

Alright. Can I ask you a larger question about this table. And for the purposes of my questions, can we just compare the figures for 2014/15 with 2016/17?---Yes.

And if we go to the totals, for 2014/15, you have got 653 million dollars - - -?---Yes.

- - - compared with 2016/17, 372?---Mmm.

Now, even allowing for the fact there might be a bit more to trickle in to 16/17, it still might appear that there’s a couple of hundred million dollars less than there was in 2014/15. That’s the appearance that the table would give. You would agree with that?---Yes, I would.

Yes. Can I ask you about that, though, because if you look at that figure of 653 million as being the total Commonwealth expenditure in this area for 2014/15, the figure of 653,391,756 appears at the bottom of the column that has a number of subtotals in bold print. Subtotals 21,752,638; 335,160,927 – those figures?---Yes.

Those figures in bold print, though, do not add up to 653 million. You would probably be able to do that by just a quick check; in effect, adding 21, 335, 4, and 43?---Yes.

You agree with that?---Yes. I would.

To get to that figure of 653 million in the total column, can I suggest that you have to add in all the figures that are included in the top part of the diagram in the summary bilateral NPA SFNT?---Yes. That’s correct.

And they total 247,000 – 247 million plus change?---Yes.

And if you add that figure to the other subtotals you get to 653?---Yes. That’s correct.

But can I take you over to back to 2016/17: the same process does not appear to have been repeated with those figures in the top section of the table; that is the bilateral NPA SFNT figures, namely 90,490,000, and 69,000,311. They do not appear, I would suggest, to be included in the total of 372 million?---No, that’s correct.

Why is that?---Because when we were initially asked to provide these financial data, we were asked to provide up to 15/16. We overachieved and provided what we knew of 16/17. So that 16/17 column is not fully totalled yet because we haven’t populated all of the cells.


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But you have totalled the other figures that you’ve got underneath those figures?---Where we’ve got a reasonable degree of certainty about the numbers we’ve totalled them.

Do you not have certainty about those figures in the top fields?---So, for example, that other bilateral special purpose payments line, we would need to, for example, validate to get the subtotal. And then the direct Commonwealth expenditure area, we’ve got no cells currently filled out.

Right. Is there any reason, though, why you wouldn’t add those in for the time being, just to be consistent with the approach adopted in the 2014/15 column?---To assist the Commission, we certainly can.

Well, would you agree that when it’s presented in this form, it might potentially give a misleading impression that there’s some 240 million less when it’s never going to be anything like that?---That’s right. Yes. It is a bit misleading. Yes, you’re correct.

Alright. Okay. Thank you. That document, appendix 1, can you just – and not just sheet 1, appendix 1, but the whole thing?---The whole thing.

Can you just tell us what it is?---Sure. So it is a summary of all of the Commonwealth’s expenditure flowing into the Northern Territory; the best we can glean from all the Commonwealth agencies that we asked.

And it has been quite an exercise to pull it all together from many different sources; is that right?---That’s right. That’s right.

And you have had to do that because there is no single central repository of information that actually can be looked at to record the programs and services provided specifically to the Northern Territory; is that right?---That’s correct. That’s right.

I just want to show you another document. For the record, this is schedule 6.1 to the Growing Them Strong Together Rreport. I don’t necessarily suggest, Mr Tongue, that you have familiarity with it but perhaps if you have a quick look at it and see the type of thing that it is, a list of services and supports in the Territory. Just to complete the point, there’s no such document like this in existence at the moment?---No.

No. Alright. Can we then turn to the topics of the different ways in which money is received from the Northern Territory – from the Commonwealth by the Northern Territory. And in paragraph 12 of your statement, you refer to the concept of GST and the Grants Commission and that’s one way that money comes into the Northern Territory?---Yes.

And is the starting point for, just the starting point for the distribution of GST, is that basically population for - - -?---It’s a bit more complicated than that. The way the


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Commonwealth Grants Commission does that distribution is partly demography, but a significant part of it is to do with what they call disability factors.

Well, I’m coming to those?---But population is certainly a key input, yes.

Alright. There are other factors and I think the phrase might be that the distribution can be factored up for things like remoteness?---Yes.

And indigeneity?---Yes. And road length and a whole range of other factors. Yes.

For the Northern Territory, it’s the case that remoteness and indigeneity have an impact?---They’re key factors. Yes.

What impact do they have on the amount of money that the Northern Territory gets?---So the Northern Territory, if you look at budget paper number three, gets about a weighting of five in GST distribution, whereas New South Wales gets a rating of about 0.97; it bounces around a bit. So the Northern Territory gets a significant weighting in the distribution of Commonwealth - - -

COMMISSIONER WHITE: Is it the highest in the excellent?---Yes. It is. Yes.

But a considerable factor?---By a considerable factor, yes.

MR CALLAGHAN: And those factors of remoteness and indigeneity are, I think you said, key factors that - - -?---Yes. They’re not the only factors, but they are key factors.

No. Is the Northern Territory required to spend any particular amount of money on those things by reason of those factors?---No, it’s general revenue assistance. It flows from the, essentially the Commonwealth Treasury to the Northern Territory Treasury for the general purposes of the Northern Territory government.

And is there any accountability at all attaching to those increases?---I would say the primary accountability is a political accountability. It is the accountability of the Northern Territory Ggovernment to Territorians and then through the Council of Australian Governments, it is the accountability of the Northern Territory in front of other jurisdictions.

COMMISSIONER WHITE: So it requires somebody to say, “Hey, you’re not spending that money as it was intended”?---To some extent.

If that’s the point that’s to be made?---If that’s the point that’s to be made, yes, it needs to be called out, it is general revenue assistance. Yes.

MR CALLAGHAN: And it would not be the Commonwealth doing that calling out? Not required to be?---Not required to be. Not in a formal way. I think you will


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hear from time to time federal politicians talk about those issues. But there’s not really a formal mechanism of accountability around how the money is spent.

Alright. Thank you. Can we turn to other funding mechanisms and specifically first to the concept of partnership agreements?---Yes.

And there are two, I think, that we are principally concerned with: the stronger futures agreement and the remote Aboriginal investment agreement: is that correct?---That’s correct, yes.

So as to the Stronger Futures Partnership Agreement, can you just tell us why was that Replaced?---Stronger Futures was established quite a few years ago. In the relationship between the Commonwealth and the Territory government there was quite a deal of what’s called Commonwealth-own purpose expenditure, which was money agreed to that the Commonwealth would spend on its own account in the Northern Territory, that after the agreement had been operating for a period, judgment was made that some of that funding would be better allocated to the Northern Territory government. Plus, as that national partnership agreement unfolded, it became clear in the operation of it that we needed to make some adjustments to it.

I understand there might have been a need to make some adjustments. Why was it replaced?---Partly it’s around focus and outcome. I would say that the new agreement is a little bit more focused on outcomes and deliverables than the earlier agreement was. And also some of the mechanisms that we used to co-ordinate between ourselves and the Northern Territory government.

Well, look, I might explore that with you by reference to some of the things that were meant to happen under the 2012 Stronger Futures Agreement and, to that end, I might ask you to take a look at a booklet that was issued explaining the Stronger Futures commitment. And just using this just as an example and as a vehicle to examine what the deliverables were, can I take you to page 6 of that and to the box that contains highlights?---Yes.

And you can see it has got some detail there about the amount of money and the number of communities for children’s sites that are going to be increased and the amount of support that’s going to be given for intensive Family Support Services and so on.?---Yes, I’ve got that. Yep.

Are we able, with the information that we have, and I’m not suggesting that you’ve got it right in front of you, but are we able to tell how much of that has actually happened?---I would think, running down this list, with a bit of time, and some engagement with the Northern Territory government, we could account for it, yes. Together we could account for it.

But you would have to get together and talk it through and say, you know - - -?---That’s right. That’s right.


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And you would be relying on the Northern Territory government to give you that information?---In some areas, yes.

It’s not necessarily information you would have?---Not completely for that list, no.

No. Okay.

COMMISSIONER GOODA: Do you think you should have it? Like it’s a significant amount of money, $442 million?---The way national partnership arrangements work, the Northern Territory government works with us to develop an implementation plan and then we monitor that implementation plan. In truth, as the implementation unfolds, some sites don’t start in the 12 months they are intended to start because of the wet. Other sites - - -

That is not the question. The question I asked was should the Commonwealth actually know what’s happening with this money?---We have – because through our staff on the ground, a reasonable idea, our challenge is sucking up the detail and then presenting the overview. I would say we have a reasonable idea of what’s happening here. Should we monitor the Northern Territory more closely than we monitor other jurisdictions? I would say that’s a difficult call.

But these are – and Mr Callaghan is going to go through a few of these highlights, I would imagine. They are very specific things: 23 intensive Family Support Services. Continue two mobile child protection teams with 25 workers. Like, they’re very specific. And I would imagine they’re pretty easy to monitor. Like, it’s a simple question. Do they have the two teams with 25 workers?---Some are easy things to monitor. So for communities for children, for example, they’ve – stronger communities for children are in 10 locations with six more locations on the cards to roll out. I think Ms Baxter will give evidence later about other communities for children’s sites. Eight existing play groups – I would have to go and look at our data on that one.

I don’t want to go through them all?---So some of them are easier than others to monitor, I guess.

Because one of the issues confronting us in this Royal Commission is there’s a significant amount of money coming here?---Yes.

I was going to ask you a question about the GST distribution with the indigeneity factor. How much is that these days, that comes to the – that is added in there for the Northern Territory? Like, I remember the days when 600 million was the figure quoted. Is it around that still?---I would have to go back and ask the Commonwealth Grants Commission. It’s a significant factor. One of the things I would note, though, that over time, the Northern Territory’s relative share of Indigenous population against the national Indigenous population is falling. So in the 1980s it was around 20 per cent of Australia’s Indigenous population was counted in the


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Northern Territory. Now it’s about 10 per cent. And it’s to do with population movement, birth rates and so on. So the relative shares are also changing.

I suppose Commissioner White and I obviously discuss this pretty often, that there’s - - -?---Yeah.

- - - on one hand we’re being told, you know, communities and organisations can’t afford a worker, but then on the other hand we’ve got a massive amount of money coming in here. And it’s fairly easy to say for no visible significant improvement?---I think if you look at the data, I wouldn’t say there’s no improvement. I think if you look at the health data, many trends are going in the right direction. It’s not fast enough and it’s, you know, not as strong as we would like. But in many areas, the trend line is heading in the right direction.

Except in things like child protection?---Yes, certainly. Different area. But in many of the things the Commonwealth is principally concerned with, you know, primary health care, for example, the data suggests that things are heading in the right direction.

Do you think that’s because, in the Northern Territory, there’s a great community sector of Aboriginal medical services. There is?---There is. There is, objectively.

Do you think that’s a factor - - -?---Yes. Absolutely.

- - - because of advances we are making in health - - -?--- .....

- - - where we don’t have the same sector presence, say, in child protection and youth detention?---I think the existence of strong Indigenous-managed/led organisations and good workforce strategies to build capability – you need both things – where they exist generally speaking in Indigenous Affairs, we see progress.

I’m going to come back to that issue because when we start talking about the distribution of IAS money - - -?---Yes.

- - - in the number of Aboriginal organisations that are funded. So I will explore that a bit further?---Okay.

MR CALLAGHAN: Well, I won’t bog down too much on the specifics, just coming back to the specific program that I was asking you about, the communities for children sites?---Mmm.

And you see, as I’ve taken you to, the proposition that it was going to be increased from four to 19. You’ve told us, I think, that there are 10 and plans for another six. Is that right?---That’s right. Subject to an evaluation that’s currently underway.

Well, what does that mean?---So in – as we work with players on the ground to roll out these programs, we just don’t have the ability to switch them on everywhere in


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the Northern Territory at once. So we tend to start with communities that are either exhibiting data that suggests high levels of disadvantage and sometimes we will start with communities where there is capability to take quite rapid steps forward quickly, depending on the nature of the program we’re unfolding. There was always a commitment, is my memory of communities for children, stronger communities for children, for an evaluation and that’s underway at the moment. Simply: is it delivering all that was intended, you know, have we learnt some lessons if we were to roll it out further, and then the commitment is to keep rolling it out.

Presumably that sort of evaluation was done before the undertaking was given to increase the number of sites from four to 19 with a focus on remote communities?---I cannot remember that detail. I’m afraid I wasn’t there at that stage.

Okay.

COMMISSIONER GOODA: Can I – that’s that program that’s around governance in communities?---It’s - - -

Community getting together?---Yes. It is. It’s bottom-up driven style initiative, yes, with a facilitating partner. It’s trying to take government out of the equation.

How are those sites determined?---I would have to get that information for you, Commissioner. I would have to find that out for you.

And looking at a list of funded organisations, they include things like Jesuit services and Life Without Barriers. How come they are being funded instead of Aboriginal organisations, seeing it’s about Aboriginal community?---So the Indigenous advancement strategy, when it was created, took 150 separate Commonwealth programs and brought them into five program streams. When that occurred, we inherited a range of funding decisions from across eight Commonwealth departments that had been made over successive governments. In putting them – in putting all the programs together, a judgment was made quite early on that if we were to unplug a lot of those services that we were funding, we may inadvertently do some harm. So you will find, we work with Save the Children, the Jesuits, a whole range of services for provision of services. The intention of IAS though is to work with communities and through the process of the funding cycle that’s built in of community application for funding, to gradually shift to much more of a bottom-up community focus. And I think it’s on the public record that the Federal Government’s intent is that over time we will move to fund principally only Indigenous organisations. Sometimes we struggle to find Indigenous organisations in some of the locations that services might be needed. Sometimes organisations are fragile. There’s a range of reasons why we might not.

But taking a community development approach, wouldn’t it be saying it’s better to build the capacity of those - - -?---Yes.

- - - if you’re – to use your word, fragile?---Yep.


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Instead of getting someone from Sydney to come in and do it?---Absolutely. Absolutely. And it is – the challenge of every community is different, and what modality of delivery do you need in community development in each individual community. But the commitment has been made to move to fully fund – well, to largely use Indigenous organisations.

I also notice in the guidelines about a local community board being developed in these communities. Are you aware of the reforms that the Local Government Act in the Northern Territory that talks about exactly that in communities?---Yes.

How do these relate to those boards that are developed from a local government perspective?---So in each of the communities, there’s a facilitating partner who is given funding and the idea is that that facilitating partner works in the community to glue the community together. And so the idea is that the boards draw on community resource. And it’s not an exclusive arrangement where you might have parallel boards in operation. You might find that the boards, in fact, overlap.

But isn’t that part of the problem in communities, that each government comes in. So you’ve got local government saying we have got a local community board. Then we have got a Commonwealth program saying we’re going to have a local government, or a local community board. Do you see the inherent problems there? You know, in a past life I’ve written about how governments had some conflict in communities and that’s a typical example of how governments can set up conflict because you will probably find two boards in a small community. You’ve already said that they don’t have the capacity – some don’t have the capacity to run an organisation, yet there’s two boards being set up, as a way of potential conflict without, you know – that’s if the Northern Territory ever gets around to establishing these community boards as well. So, you know, we’re really concerned about how the community actually has a voice here. And it seems like you’ve got facilitators coming in, mostly non-Indigenous, doing this really important work about finding out what the community needs, how the community can interact with government, how the community can interact with government around issues like child protection or youth detention?---One of the things I’m periodically challenged on is the question of who is the community.

I will take you to Yuendumu I will you the community at Yuendumu if you want?---And the challenge there is people, policy makers responding to power structures in communities: are we trying to reach young people, women, girls, decision makers, traditional owners? And I think that significantly informs the decision that the levels of government make about the kind of governance arrangements that go into communities. Then on top of that there are Indigenous organisations who have particular strong focus in some communities, not so much a focus in other communities. And then you add in custom, practice and history in that there might have been a community board set up 10 years ago for a program that governments have subsequently decided not to fund but the community valued that governance mechanism, and you do get a very dense thatching of governance arrangements, and some people in communities who sit on a lot of boards and are


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fatigued by their governance. Could we get to a situation where there’s just one committee? These are complicated communities with layers of need, power structures, all sorts of inherent tensions. I have to be honest and say I’m not sure we can get to one committee to rule them all.

I’m not thinking about one committee, but did anyone ever think about asking the community to sort out those issues?---We spend a lot of time engaging with communities. I think one of the tensions that you will see trapped in the evidence we’ve provided is national programs or Territory-wide programs. And those programs that respond to community need. And so sometimes I think we wrestle with – are we building a system or are we responding to communities? Because if you respond to the individual needs of every community, you will usually fall short of a system response. It’s - - -

But can I take you there. Everyone agrees you can’t have a one size fits all. And isn’t that what a system response does. Why can’t you have a Yuendumu program, or a ..... program?---I think it depends the area of public policy we’re in. Schools, for example, is largely a system response. We will fund breakfast programs and after-school care, camps and all sorts of things to sit in around school. But school is a universal service and the expectation is all Australians get access to a basic level of school. And so I would call that a system response. Policing, those sorts of things. When we get to the more community development aspects of how do we work with communities to expand the agency of people in their lives, which is the key challenge, then we end up less with the system and more with the patchwork and largely these big attachments speak significantly to that patchwork. Is it right or wrong? It can be improved for sure.

But that’s what I hear all the time, “You can’t have a blanket approach.” Then we have a blanket approach?---I think – I think it turns a bit on the policy area. And it does significantly turn on expectations about what people should have access to.

MR CALLAGHAN: I just want to pick up on an aspect of the exchange that you were having with Commissioner Gooda?---Mmm.

And in this situation where we’ve got large NGOs who might be providing a service to a particular community, and the argument or the concern is that the locals aren’t providing that service for themselves, or that there’s not an Indigenous organisation that’s providing such a service. Can I ask you this: when you are handing out the money, is there ever a contractual provision included or is there some strings attached to the grant whereby you extract a commitment from that NGO to build up such a capability if they’re going to get the money. Does that happen?---It depends very much on what we’re contracting for.

Well, does it ever happen and, if so, where?---Yes. And so we pursue that objective in a couple of ways. We have staff in many communities out on the ground and if they don’t live there, they travel there frequently. And we’re monitoring that service provision to ensure that those service providers are working hand in glove with the


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local community, and engaging the community in the service provision. In some of our contractual arrangements, we actually set out to deliver capability through our contracts with those organisations. So it happens at multiple levels and in multiple ways that we pursue that objective.

Do you ever require, though, something like a permanent exit strategy saying that yes, you can deliver this service but only if you build up a capability that means in a certain amount of time, you won’t be needed?---We have on occasion done that but I wouldn’t say it’s a common practice.

Is that something that should be more common if we’re going to achieve sustainability of delivery of services by Indigenous communities, otherwise it just goes on for ever, doesn’t it?---I think there’s a challenge. I’m on the record as saying Indigenous Affairs is heavily provider-captured. Ultimately we are funding organisations to provide, in the largest case, services to people in communities. And so there is an obligation to ensure that services of actually being delivered, as well as the fact that we are working, in the most part, with Indigenous organisations and there are some questions of balance in there. There’s a bit of an ebb and flow. Are we investing in building the capability of organisations? Yes, we are. I think over time the Commonwealth efforts probably ebbed a bit in that area, although I would note the office of registrar of Indigenous corporations’ latest report shows a lot of progress has been made. So I think we have multiple obligations; I put it that way.

Yes, I understand. But working with community organisations or working with the communities is not the same as building capacity?---No, that’s true.

One can certainly happen without the other happening at all?---That’s true.

And it’s this concept that I want to explore of building capacity by reason of the fact that you’re in control of the money. Could you, for example, adopt some sort of policy whereby a fixed percentage of any contract was allocated for capacity building?---I think there’s multiple ways to do it. That’s certainly one way to do it.

Is that a way that’s done at the moment?---Again, depends on the nature of what we’re contracting for.

COMMISSIONER WHITE: Mr Tongue, on this topic, when Commissioner Gooda and I visited many communities in the Northern Territory, it was my mission, I think, to ask as many of the service providers who attended our meetings – and many of them did – about their exit strategy and you would have thought that I was speaking in an entirely foreign language to every one of them. There was not one that understood the notion that they might actually be assisting that community to replicate the things that they did for them. So it is obviously not in the in the forefront of those on the ground’s minds. Of course we didn’t go to every community by a long shot and probably we didn’t speak to enough people, but it was pretty stark that that was the general response. I know that’s an ad hominem type argument as well, but it troubled us a lot?---Certainly the Federal Minister for


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Indigenous Affairs is on the public record saying his preference is to move quite quickly to Indigenous organisations being fully-funded out of the IAS, and, you know, that’s his commitment to the process. I think it does go to the question of development practice.

Yes?---We’ve, in significant part, contracted delivery of services.

Yes, I understand that – what you’re saying, Mr Tongue; that your agreements with these various NGOs is of a particular kind and it does not include, as Mr Callaghan is exploring with you, any obligation to help the community to develop its own capacity. So I won’t take that any further, Mr Callaghan. I will let you carry that can.

MR CALLAGHAN: Well, I’m not sure further, in the light of Mr Tongue’s answers, and – I’m not sure how much further - - -

COMMISSIONER GOODA: Maybe I can ask a question.

MR CALLAGHAN: Please, Commissioner.

COMMISSIONER GOODA: Do you think you can’t do a developmental approach when you use a system of tendering. Because tendering is based on who can provide the best widgets at the cheapest price. How can you build in – and if an Aboriginal organisation, no matter who they are, don’t come to the level of a big NGO who has got a back room full of people writing applications and tenders, you can’t – how do you actually build the capacity of an organisation when you are using a tender approach?---You can actually write it into the tender. It just makes the tender very hard to assess. The money that is the Indigenous advancement strategy is grant funding. So it’s one – this year it’s about $1.4 billion of grant funding which doesn’t really - - -

So it’s not really tendering?---It’s not really tendering.

Yes?---To be honest, in some communities in the Northern Territory, we will struggle to find organisations to deliver things that need to be delivered. And that might be why we end up with a non-government – religiously driven non-government organisation, because they’re prepared to go to a community and deliver something that a government might have made a political commitment to deliver or the data suggests it needs to be provided.

So the decision-making that happens at communities, you know, almost from the intervention to the abolition of councils, the non-construction of these advisory boards, that was supposed to be developed after the Shire reforms, has basically led to the disempowerment of Aboriginal people. We hear that all the time. I talked to a fellow in a community, who said “I’m just getting depressed now. I’m really depressed about the number of organisations coming into my community. We don’t know them. They don’t introduce themselves, and then they leave.” How do you –


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do you think there is a response – I’m not going to sheet it home to the Commonwealth or the Territory to build the capacity of communities to participate in the decisions that affect them?---Yes.

You think we should move to that, that community decision-making, along with government, government can’t exit particularly the service provision, that probably comes out of the Territory around child protection and youth detention. But we’ve got people out there who have basically just given up because of what’s happened to them over the last 10 or 15 years?---I think there’s a lot we can learn from how Australia approaches its aid delivery overseas, where there is an exit strategy, there is a community development approach, there is a different set of expectations. So yes, it is a big machine to turn around. I would argue we’ve started that. It’s not going as quickly as most people would like us to. But I think yes, you’re right.

Can we go back to what Mr Callaghan suggested and that’s a developmental factor in these grants?---Yes.

So maybe some of these NGOs can exit somewhere down the track?---And that’s a body of work that we’re currently doing. I pointed to Minister Scullion’s public remarks; that’s a body of work we’re currently doing.

MR CALLAGHAN: Well, can I explore that, because that’s very much where my questions were going. It can be done, I would suggest to you. If you are in control of the money, you can make people do the most extraordinary things. And if you’re going to make the provision of money conditional upon something, then it will get done. That’s what you’re telling us you’re exploring, that type of approach?---That’s right. I would just put the qualification that we have, in the past, struggled to make organisations go to some remote communities. We can’t force people to do that. We have struggled to get services delivered in some remote communities, in my experience, on and off over the last few years.

COMMISSIONER GOODA: Come on, you wouldn’t want them there if you have got to make them go. I don’t think the community would want them there?---No. But you – again, that comes back to the tension: who has decided something needs to be delivered and in what circumstances?

Isn’t that the point though? That’s the point I’m trying to get to, is who decides that? Is it government? Is it the community decides what they need in a particular place? There are two different scenarios there, isn’t there, between government deciding what services are needed – leave aside police and education, and those sort of, what I would call statutory responsibilities. But a whole lot – there’s a whole lot more stuff that’s really complex human issues here that needs to be addressed?---There is. And I would come back to there are – there are some matters where the Commonwealth funds things in remote communities that have been election commitments, that have been decided in Parliament as part of maybe a deal to pass legislation, where that is the government’s decision of the day. And we’re obligated to go and deliver it. There are other matters, and what is built into the Indigenous advancement strategy


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is that notion that the community can apply up around its own needs and that’s what our staff on the ground are doing, is working with communities around what their priorities are. And mostly, what we’ve found is communities are very sensible. They know what they need. And the challenge is the interface between the history and the practice that’s embodied in the current expenditure and what the community currently wants. That’s the challenge of unpicking old commitments and old programs and trying to turn that around to respond to what the community wants. It’s quite a complicated process even in a community of 150 people. There’s – it’s a technically quite difficult task and we’ve embarked on it. It’s proving challenging to do quickly.

So how is that safer community for children, that program building capacity? What’s your view of how it’s going?---As I say, we have got the evaluation underway at the moment. I wouldn’t want to express a view until I’ve seen that work. From what I hear, there is a bit by communities but I think it’s generally positive, is what I’ve heard.

I’m just wondering, whether – and I see Lajamanu is there. Is it developing, contributing to the ..... structure they have in Lajamanu?---I don’t know, but I’m happy to provide information, more detailed information.

Like, that looks like – they have come here and presented evidence about community involvement in the justice system and how they want kids treated and all that, and that’s fairly good from all appearances?---Looks like a good model.

It would be a shame if you’re funding a different process out there?---Okay.

MR CALLAGHAN: Can I just tie off on the – the broader topic of the accountability of organisations that are providing services. We’ve talked about accountability for capacity building. You’ve told us that there’s some work being done or some thought being given to that. Is that something that you can provide us with some more information on?---Certainly.

Okay. Let’s turn then, just to the service delivery aspect of their function. As you are, no doubt, aware, the Australian National Audit Office published an independent audit of the strategy from the time of its announcement in 2014 until the audit commenced in March of 2016. You’re familiar with the - - -?---I certainly am. I certainly am.

And, of course, it was highly critical. It raised problems going right back to the conception because it drew attention to the fact that the department had only seven weeks to plan and design a strategy which involved bringing together so many different moving parts, really?---Yes.

And can I ask specifically for the purposes of this Royal Commission, in that process what consultation occurred with the Northern Territory government?---I wasn’t in


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this role at that time. So I think there was consultation but I don’t have the detail of it. Can I provide that to you?

Thank you?---Yes.

And in a similar vein, details of consultation with Indigenous communities?---Yes. There were consultations across the country, but I will get you that information.

Obviously we’re only concerned with the Northern Territory?---Northern Territory. Yeah.

I understand it was a national issue?---Yes.

But the audit – and we might get the document on the screen. I think page 8 of the evaluation concluded that the administration processes fell short of the standard to effectively manage a billion dollars of Commonwealth resources. You see that quote under point 10?---Yes, I do.

Also issues with keeping of records of key decisions and, specifically for current purposes, the department did not establish performance targets for all funded projects. That must have – well, let me ask this. The documents that you provided us today, in – the details that you’ve provided us today on sheet 1 of appendix 1, would have included reference to funding allocations that were affected by these issues?---For all contracted projects, we establish key performance indicators, milestones, those sorts of issues. We and the auditor-general have a slightly different view. In the end we have accepted the auditor-general’s recommendations. However, for those projects in the Northern Territory that are funded under the IAS, there will be key performance indicators and milestones against which we would fund those projects.

So are you saying that the comments made in that document would not be applicable to the projects in the Northern Territory?---I think for the vast majority of projects in the Northern Territory now, noting that this was an audit some time ago - - -

Yes?--- - - - it’s in the nature of the funding cycles embodied in the IAS. A lot of projects were funded for two years to start. But then we’ve re-authorised them or funded new projects. And we’ve continued to improve our performance information, performance monitoring, key performance indicator, kind of process. I wouldn’t say that every project we fund in the Northern Territory is nailed down. I would say for the vast majority there are key performance indicators and milestones in place.

And one would hope that is the case now. The question is really did anyone go back and check that the things that happened in 2014 were not affected by the sorts of criticisms that were being made in this document?---Well that’s that process, that process of continuous improvement I’ve just outlined; that we’ve already, between this audit and now, we’ve updated the IAS guidelines.


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So it won’t be a problem from now on or shouldn’t be?---Shouldn’t be, no.

But did anyone go back and check whether - - -?---So we are doing a body of work at the moment to look retrospectively at all the information we have collected under the IAS.

Okay?---Yeah.

Well, again, is that something we can - - -?---I’m happy to give you details on that. Yeah.

You are happy to get details of that. Can I ask you some questions about the PM&C regional network of government engagement coordinators and Indigenous engagement officers?---Certainly.

Excuse me. Some late breaking information. Apparently the document that’s perhaps been prepared by your own staff, which you may not have seen yet. I might get you a copy of that. And copies for the Commissioners. That document that I’ve just handed you headed Australian Government Remote Staff, to cut to the point that I want to ask you about, it says that there were – it says:

There are 16 IEOs employed in the Northern Territory and 17 GECs.

And you are at a disadvantage because I guess you don’t – you are just seeing that, but I’m comparing that with paragraph 38 of your statement, which we might get on the screen for you, if we can. You see some rather different figures. I’m seeing this for the first time myself, so I understand if you need the opportunity to - - -?---I thought that the figures in my statement were the correct figures. It could simply be that we are constantly in a process of recruiting people and we have vacancies and so on. So that might account for some of it. But I would like the chance to just reconcile those numbers.

Alright. Well, we will certainly add that to the list?---Yes.

But while we are on the topic, can you just give us an explanation for how these specifically the GEC roles, how they operate and what their purpose is?---So, governments engagement coordinators are PM&C staff who live in communities.

Sorry, can I just stop you. Do they all live in the community?---We have some government engagement coordinators who cover multiple communities and may drive – so they live in one and drive to others, you know, that style of thing. The idea is that those government engagement coordinators are working in community to both represent what the Australian government is doing but also to listen to the community about what’s happening in the community; work with service providers, act as a point of coordination.


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So they play a role in assessing needs?--- yes, absolutely. Monitoring what’s going on. If the community wants to apply for funding, not just IAS funding, but health funding or other funding, the government engagement coordinator may assist the community in that process. And the government engagement coordinators are also monitoring delivery on the ground.

Alright. And what relationship do they have with the Northern Territory government? Is there a formalised structure for such a relationship or does it just depend on the individual officer?---No. There are, in many communities, formalised arrangements where the government engagement coordinator will bring government officials together, be they NT or Australian government officials, for example, from Centrelink or whoever, as a sort of government contact network in a community, with a view to joining up the various government roles. So there are some communities where we are, that the Northern Territory isn’t. There are some communities where the Northern Territory is and we aren’t. And there are some communities where we both are. The idea is to try and knit them – knit the government effort together.

COMMISSIONER GOODA: If they disappeared tomorrow, what difference do you think it would make to communities?---I think the absolutely honest answer is it depends on the GEC, and it depends on the community. I think we have some really hard-working, deeply committed people making a difference out there. Other communities, I suspect, have evolved since we put people in place, and maybe not a lot. But I think we’ve certainly – the GECs that I deal with seem to work pretty hard and they’re deeply committed.

Have you ever thought about funding a community organisation to do that coordination?---Before the NTER that used to occur a bit. Subsequently, the effort in the Northern Territory has been – I will use the language of “re-insert government into remote communities.”

I wouldn’t be using that as an example of good practice because, you know, the last 10 years - - -?---No.

- - - I don’t know whether things have improved or not. There are a lot of people tell you it hasn’t. So - - -?---I think my best advice is look at the data about whether things have improved.

What does the data tell us?---Well, I think if you look at the health data, many of the - - - Yes. Yes?---Go back to .....

That’s run by community control and a nice relationship with government. That’s a well-established sector?---That’s right.


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It’s one of the areas where we don’t have that is where the issues are?---So, do GECs add something to PM&Cs ability to deliver services? Yes, they do, because we are a long way. The policy function is a long way away in Canberra. And the money is spent in the rest of Australia. And so our regional network and our government engagement coordinators, if we didn’t have public servants doing that, simply because of those notions of accountability, we would struggle. And the danger for public administration was we would be even more divorced from delivery on the ground, which I would argue isn’t a good thing.

MR CALLAGHAN: Just on the subject of money, what sort of commitment are we looking at? Broadly speaking, what sort of salary would these people be on?---It would be an EL1 or an EL2, so in the range 90, 120, 130,000 a year. But that’s just salary and then, you know, there’s all of the on-costs associated with - - -

COMMISSIONER GOODA: Much as – we would be looking at a package of a house, a car?---Typically a donga or maybe slightly better access to a four-wheel drive, our costs, telecommunication.

200,000?---At least, I would think.

So 27 of them is costing a fair bit of money?---Yes. They’re – it’s an expensive investment by the Commonwealth, yes.

How many of the government engagement coordinators are Aboriginal?---I don’t have that figure in my head. I would have to provide that to you.

I assume all the Indigenous engagement - - -?---Officers are indigenous. And some of the GECs are Indigenous, but I would have to get you that detail.

Are they sort of like a bit of a hangover of the old government business managers?---They’ve evolved. The government business managers existed at a time when there were eight separate Commonwealth departments in – operating. And the idea was – I call it an embassy function, a bit like an ambassador overseas would coordinate agencies in, say Jakarta: the idea was there was a government business manager on the ground. Having created the Indigenous Advancement Strategy and moved everything into PM&C, the role has evolved. It’s really coordination between ourselves and health and that’s given us the ability to reposition the engagement coordinators to focus more on that bottom-up access to funding that is built into the Indigenous Advancement Strategy.

MR CALLAGHAN: We have some position descriptions for those jobs. I might just get those up on the screen. Mr Tongue, I don’t suggest that you’ve committed these to memory, but they’re the sorts of – they’re the position descriptions for the GECs?---Yes, they are.

I think there’s three for each?---Yep. Yep.


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I will just tender those now, at this point in the transcript.

COMMISSIONER WHITE: As well as the document that has just handed up. The Australian Government Remote Staff.

MR CALLAGHAN: I have tender that separately. So, yes, I will tender that first.

COMMISSIONER WHITE: First. That is exhibit 581 for the document described as Australian Government Remote Staff.

EXHIBIT #581 DOCUMENT DESCRIBED AS AUSTRALIAN GOVERNMENT REMOTE STAFF

MR CALLAGHAN: The next exhibit are the position descriptions for government engagement coordinators.


EXHIBIT #582 POSITION DESCRIPTIONS FOR GOVERNMENT ENGAGEMENT COORDINATORS

MR CALLAGHAN: The next is position descriptions for indigenous engagement officers.


EXHIBIT #583 POSITION DESCRIPTIONS OF INDIGENOUS ENGAGEMENT OFFICERS

MR CALLAGHAN: Conscious of the time, Mr Tongue, so I’m going to conclude by asking you to have a look at the Australian government response to the Senate Finance and Public Administration References Committee report, Commonwealth Indigenous Advancement Strategy tendering processes. Once again, you would be familiar with this?---Yes, I am.

This document. We go to page 4, and recommendation 1. And you can see that the recommendation was that future tender rounds would be underpinned by robust service planning and needs mapping. Take a moment to look at the response. And the response does address the first part of the recommendation concerning tender rounds but I would suggest to you it does not deal specifically at all with the issue of service planning and needs mapping. Are you able to tell us what practical steps


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have been taken to improve needs mapping in the Northern Territory, in the areas of early intervention and child protection?---Certainly. We have within PM&C a group of people who are constantly analysing all the data that is available on the delivery of all government services to Aboriginal and Torres Strait Islander people. And that group does significant amount of work across all dimensions of policy, including youth detention, those sorts of issues, and supports us in the delivery of various programs and services. Which – to give you an example, that group supported us in a body of work we have recently completed with states and territories for COAG, known as Prison to Work. That is an analysis of the experience and policy options around how we do a better job for incarcerated Indigenous Australians. And so where – we do it at a national level. Then at a Territory level we meet regularly. I meet with the head of the Chief Minister’s department and each of the heads of Territory departments. My staff here in Darwin meet roughly quarterly with both Commonwealth counterparts in Darwin but also Territory counterparts. And then that service planning and so on gets embodied in our response to what the Northern Territory is doing and their response to what we’re doing. For example, the rolling out of the construction of new houses is something that is heavily driven by data and need and a whole range of factors.

Well, I understand what you say about people working and meeting regularly and so on, but to bring me right back to where I began, it would be helpful at such meetings, would it not, to have a single record of service delivery and, for the purposes of needs-mapping, have a single repository of knowledge?---That’s right. And there is a product, and I think the Northern Territory government still use it, which has a lot of that mapping. And I’ve certainly been in meetings where we have called up communities and mapping is able to tell us what’s happening in those communities. I’ve certainly – it might have been the year before last – saw that product.

You interest me, strangely. We will take that up with the Northern Territory government.

COMMISSIONER GOODA: Does the community get involved somehow here? You know, we are talking about community need.

COMMISSIONER GOODA: Does the community get involved somehow here, in – you know, we are talking about community need?---So there’s an extensive engagement between us, the Northern Territory government and Indigenous organisations in the Territory. And then we’re also engaged on the ground in all the communities where we’re rolling things out. Is there enough transparency to communities about the data affecting those communities? No, but I’m hopeful that we will be able to address that.

You’ve addressed health a couple of times?---Yeah.

And I’ve talked about – like, you’ve got a health service network. You’ve got a peak body, AMSANT, it engages with the Commonwealth and the Territory government.


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It’s fairly transparent, like a lot of decision-making at a Territory-wide level is made with Indigenous input through AMSANT?---Yes.

Is there any - - -?---Yes. We have got – well we have relationships with AMSANT.

I’m not saying that’s a good practice, that one?---Yeah.

I’m thinking about in other areas, that there could be that similar input?---We can always improve our process of taking input in. I think our challenge is that transparency question.

But don’t you think it’s so important to, if you’re going to fund something – and we’re talking the tune of, in IAS, nearly 700 million a year, but do you expect the community to have a say about what they want?---I would argue in many instances the community does get a say, gets a significant say.

How?---Well, through engagement with us as we plan the roll-out of something, with the engagement with the service providers who may sometimes be Indigenous organisations grounded in the community or Indigenous organisations serving the community. I would argue that there is engagement. Is it enough? It can always be improved. It can always be improved.

Yes. Do you have plans to improve it?---Yes. We’re constantly striving to improve that process. I would circle back to that key question about data. The Northern Territory is blessed – you probably heard about the Northern Territory South Australian data link project. That’s a unique piece of data analysis for the country into which more might be added, including Commonwealth data. I think that is a significant part of transparency by government to Aboriginal people in the Northern Territory.

But you can see we’ve been exposed to a data link project here that connects children’s data across a range of agencies. And we had an expert in here last week describing it as getting worse and a humanitarian crisis. If you want to talk about data, that’s the data we got presented last week. You know, if it was in a health term, he said it would be an epidemic. This is child protection?---Certainly, in relation to child protection, and then you offset that against other data that’s in the system that we see in the Closing the Gap report that we compile, and we see trends in other areas that look like they’re heading in the right direction. I think the honest answer is it’s a very complicated picture. It’s particularly bad nationally for Aboriginal and Torres Strait Islander children in child protection and youth justice. That’s – the data’s undeniably confronting.

COMMISSIONER WHITE: I was going to ask you, Mr Tongue, just going back to the previous discussion you had with Commissioner Gooda about finding out what the community actually wants in terms of services and programs. I notice in the document that we’ve just been handed that the Indigenous engagement officer’s role is described as the first to talk with community members about how government


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services are working in the community and what needs to be improved or changed. It’s probably asking someone with such a high position in the bureaucracy as you actually to respond to this. But what’s the channel for that sort of communication to get back to the Commonwealth or the Northern Territory government. They are supposed to liaise with both?---So we have multiple channels. Principally through our staff on the ground to our regional office and thence to Canberra, and that communication would be with senior staff in Canberra looking after the relevant area. We also try and create opportunities for direct engagement. So, for example, we held our Indigenous staff conference last week where we brought 120 Indigenous staff from across the country together to talk directly with us about how things are going out on the ground. So there’s a sort of formal line and an informal line. And the IEOs who, some of them are just amazing people, will take Ministers out on the ground. Not just the Indigenous Affairs Minister but other visiting Ministers or even the Prime Minister. And so they get access to people and we try and create ways for them to formally and honestly express views, wherever we can. We try not to filter it. I’m not saying filtering doesn’t happen, but we do set out to try and get that feedback from the ground.

So when it goes up the line managers, you’re confident that it doesn’t get lost in that process?---I think there’s a process of perspectives. When you are running a big national program and you’ve got all the forces that go with trying to do something, maybe in six or 700 locations across Australia, and then you’re trying to also get the fidelity that goes from those six and seven, it’s a challenge. I won’t pretend that it’s easy or that we do it perfectly every time. I won’t do that.

MR CALLAGHAN: I tender the document that’s on the screen, which is the Australian government response to the Senate committee report.

COMMISSIONER WHITE: Yes. Exhibit 584, Mr Callaghan.

MR CALLAGHAN: And conscious of the time, I will - - -

COMMISSIONER WHITE: Well, I think that this is a conversation, of course, that we could have with Mr Tongue probably all day.

MR CALLAGHAN: We could, and there are others who are keen to join in, so - - -

COMMISSIONER WHITE: They’re only getting the tiniest little slither of a minute or two, I think. Anyway, yes.

MR CALLAGHAN: Well, give them what they can get.

COMMISSIONER WHITE: Thank you. Mr Lawrence?

<CROSS-EXAMINATION BY MR LAWRENCE [12.17 pm]

.ROYAL COMMISSION 26.6.17 P-5011 A. TONGUE XXN©Commonwealth of Australia MR LAWRENCE

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MR LAWRENCE: My name’s Lawrence. I represent as counsel of the Danila Dilba Health Service. Which you would be familiar with?---Yes.

They’re the Aboriginal run and controlled health service that services the Darwin/Palmerston region?---Yes.

And they’ve been up and running since 1991?---Yes.

Their chief executive officer is Olga Havnen?---Yes, I know Olga.

Alright. Well, in the minutes I’ve got, I might just go to one area if I can, and it’s to do with the NGOs, and I will contextualise it up here in Darwin. Organisations like Anglicare, Catholic Care, Save the Children, receive Commonwealth funding to do health things up here, including child birth education, perinatal services, parenting programs and early childhood. Do you agree with that?---Yes, I do.

Now, Danila Dilba covers all of those areas. You’re aware of that?---Yes, I think I am aware of that. Yes, I’ve seen – yes. I am.

They have 13,000 clients. They serve 50 per cent of antenatal clients. And I would suggest to you that they are well equipped and experienced in dealing with Aboriginal people in such scenarios. You would accept that?---I would accept that.

And what we’re talking about with NGOs is, of course, not Aboriginal controlled or run organisations; correct?---Yes, for the most part. Yes, that’s right.

Right. Now, I think you said earlier that there was some kind of commitment to transfer control or at least these types of services ultimately to Aboriginal controlled organisations. Is that correct?---Yes, insofar as it affects the Indigenous Advancement Strategy, yes, there is.

Right. Now, for instance, with your contract or deal or agreement with, say, the Catholic Care and Anglicare or Smith Foundation or Smith Family, is there any requirement in that contract for them to partner with Danila Dilba?---Some of the contracts that have been made under the Indigenous Advancement Strategy, in fact many of them we required partnership arrangements. It would depend on the individual circumstance but as a general proposition, yes, we asked for partnership where there wasn’t an Indigenous kind of organisation available, or where an organisation was applying for that initial round of Indigenous advancement strategy funding, yes, we asked for partnership.

Well, is your evidence at this Royal Commission that Catholic Care have an agreement with Danila Dilba as a consequence of their contract with the Commonwealth; is that what you’re telling us?---I don’t think we asked – I don’t think we asked for evidence of formal agreements. I think we asked for – I would have to check what evidence we asked for, for you.


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Is there a requirement from the Commonwealth when it gives funds to these organisations that they have, within their strategy, an exit strategy, in other words so they can phase themselves out in order for Aboriginal organisations such as my client’s Danila Dilba, to actually cover the field?---Not necessarily, no.

Has that been given any consideration in this strategy?---As I said earlier in my evidence - - -

COMMISSIONER WHITE: Largely covered this, I think, Mr Lawrence?---We are doing some work at the moment in response to commitments that have been made by the current Federal Minister to work through how we would make that shift.

MR LAWRENCE: Alright. Are you familiar with the aspect in the statistics of “not in the labour force”?---Broadly familiar. I’m not an expert.

Do you understand what that - - -?---Yes.

- - - rubric actually means?---Yes, I do.

And it’s not – it doesn’t equate to unemployed, does it?---No, it doesn’t.

It actually refers to a section of the community which is not registered or it’s not on – well, it’s not so much on the census, but it’s not in receipt of, say, unemployment benefits?---That’s right.

And that is a significant number, isn’t it?---I can’t remember the number for the Northern Territory but it is – it has – yes, I have had discussions with people. We’ve talked about it. It’s a significant number.

Well, can I suggest to you that “not in the labour force” has remained largely unchanged up here for the last 20 years, and it sits between 45 and 50 per cent and closer to 60 per cent in the age group of 15 to 24 years of age men. Does that sound about right?---That sounds right to me. Yes, that sounds consistent.

And is there any specific direct strategy to deal with what I would suggest is a significant aspect in this equation?---So in remote areas there’s the what we call CDP program, which, amongst other things, targets this group, not exclusively, more 18-plus. Younger people are more the responsibility of the Northern Territory government. And you would have to ask them.

Alright. In the work that you do, as far as funding on NGOs, do you consult with, say, for instance, up here, Danila Dilba, when you make these decisions to give funds to specific NGOs?---No, not necessarily. If – the way the IAS works, there’s a process of continuous application. So if an NGO in the Northern Territory applied under the IAS, that would come into the department. It would be assessed against the guidelines. Advice would be provided to the Minister, who would make a


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decision. We wouldn’t necessarily consult other funded organisations unless there was something in the character of the application that meant we needed to.

Alright. I just want to ask you a question concerning the sustainability of these NGOs, you know the concept of being sustainable?---Yes.

Because from my instructions, I understand that these NGOs could go to a community to provide their service, say an antenatal care or whatever. It invariably involves them going out taking up travel time from where they’re centred, say Darwin. You understand this?---Yes.

It would make them a day, maybe two, to get in. They will stay for three days, they’re spending money on petrol, hiring cars. They spend that time in there, doing as best they can, no doubt, and then they come out, as opposed to what is suggested by my client, which is that you just harness what is already in there, which would be an Aboriginal health service, and get them to grow. Now, that being the scenario, I suggest to you that the NGO system really isn’t ultimately sustainable?---I think it’s going to evolve, absolutely. In the past, I think earlier in my evidence, I pointed to the fact that we were struggling to find people to work with.

We, the Commonwealth, generalisation there. And the NGO sector had capability and were willing to go into a number of communities. The flow of funds to Indigenous organisations and the elapse of time means that many organisations, such as Danila Dilba, are growing in capability. Is it sustainable in the long term? I think there’s always a place in a functioning society for civil society organisations, be they Indigenous or religious and charitable organisations. Not necessarily think it would be a good thing if we, as government, didn’t have access to religious and charitable organisations ever - - -

Sure?--- - - - because they bring something that government doesn’t bring. Is it going to evolve? Yes, certainly.

Well, can I suggest to you, you know everything about this. You’ve been in it for so many years. Surely you would have to accept that it would be preferable for everybody, the Australian taxpayer, the patients, and the Aboriginal communities themselves that provide the patients that the home-grown Aboriginal-controlled organisations with all their local knowledge, language, culture, family stuff where they can diverse from who can speak to who and who can’t, that would have to be a preferable product than what we are doing now, which is funding NGOs to go in there and try as best they can. Would you accept that’s a preferable - - -?---As long as it’s well-run, it’s a preferable product.

Thank you.

COMMISSIONER WHITE: Thanks, Mr Lawrence. Ms Dwyer? Dr Dwyer, I beg your pardon. Slippage there.


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<CROSS-EXAMINATION BY DR DWYER [12.26 pm]

DR DWYER: Sir, as you know, my name is Peggy Dwyer and I appear for the Aboriginal legal service. And I just – you were just giving evidence to the effect, really, that the Commonwealth is committed to empowering Indigenous communities; correct?---Yes, that’s right.

And committed to working with Aboriginal organisations to the extent you possibly can do?---Absolutely.

That’s your message to this Royal Commission?---Absolutely.

Are you familiar with the APO NT principles?---Yes, I am.

Can I just have them on the screen. I think the operators are aware of that. No, that’s not them. APO NT. It’s exhibit 473.001 in the Royal Commission. That’s them. Thank you. You’re particular then with APO NT principles setting out the non-Aboriginal organisations should be directly involved in working with Aboriginal organisations on the ground to deliver services?---Yes, I’ve seen these before. Yes.

And, to summarise, that the correct approach is to see whether or not an Aboriginal organisation can deliver the service before you go to a non-Aboriginal organisation?---Yes, where we can determine that, absolutely.

And what has been put to you is that despite those aspirations on the ground, there are many Aboriginal-led organisations that are telling this Royal Commission they are not consulted properly about service provision in their community. You accept that?---I’ve heard that myself in communities, yes.

And no doubt you want the Commonwealth to be able to do better and better and better in the future in terms of engagement with Aboriginal communities?---Yes, absolutely.

Would one option then be to have a service agreement with a non-Aboriginal agency requiring up-front commitment to partnership with an Aboriginal agency?---I think, as I said previously, we have done that – or tried mechanisms to do that before. What we are told, sometimes, is that non-Indigenous organisations, religious and charitables, will link up with an Indigenous organisation for the funding process and then disappear away after that. So it’s – trying to lock that engagement in is a challenge.

Doesn’t that suggest a fundamental disconnect sometimes between the expectations of the non-Aboriginal community – non-Aboriginal organisation with the Aboriginal community and a lack of understanding between the two?---Yes. And personal politics too comes into it.

.ROYAL COMMISSION 26.6.17 P-5015 A. TONGUE XXN©Commonwealth of Australia DR DWYER

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But do you agree that if that’s locked into an agreement in terms of Commonwealth funding, that really requires a non-Aboriginal organisation to do better in terms of reaching out and learning from the Aboriginal community?---I think there’s a range of ways of trying to lock that in. That’s certainly one of them, yes.

And is one option to think about also, I withdraw that. Is one option the Commonwealth might commit to building in exit plans and exit dates to funding agreements?---Yes. I think one of the lessons we’re currently looking to draw from Australia’s approach to its significant aid investment is that process of leaving. Now, it will be – it would be a government policy decision about whether they wanted to go in that direction, our government wanted to go in that direction. But certainly it’s absolutely a strategy, yes.

You agree, just taking you back to that answer, that in terms of Australia funding international aid projects, they’re very much focused on exit plans and capacity building?---Absolutely. Exit plans, capacity buildings, yes, absolutely.

And the – what – I withdraw that. That should, in fact, be the aim in terms of engaging with Aboriginal communities, capacity building?---I – certainly. Absolutely. Capacity building is incredibly important.

And to date, we haven’t done that, or the Commonwealth hasn’t done that well enough in terms of the way in which it funds its project and requires a commitment?---I think if I look at the sweep of the last 20 years, I would say we’ve been patchy.

You noted that some – in some circumstances the data is going in the right direction and suggesting an improvement and you nominate health. In the child protection space data is certainly going in the wrong direction, isn’t it?---Yes, it is.

And you would be aware, then, of a massive increase in the numbers of Aboriginal children removed from their kin and home - - -?---Yes.

- - - compared to non-Aboriginal communities?---Absolutely.

Are you familiar with the work of Professor Silburn?---Yes, I was talking to him just last week.

So you would be familiar then with his work on the careful data collection that shows the annual numbers of children notified to have increased exponentially, his words, since 2007?---Yes. Yes, I am aware of that.

He makes a comment at paragraph 56 of his statement that that trend is unsustainable and points inevitably in the direction of increasing funding for primary prevention and early intervention. You support that approach?---Yes, that’s where we’re positioned. We are trying to position ourselves at primary prevention and – absolutely.


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Isn’t it important then that to the extent the Commonwealth funds the Northern Territory in delivering programs, you monitor and evaluate to the extent the money is going, or to ensure the money is going into primary prevention and intervention?---If you’re talking – in terms of our relationship with the Northern Territory government, the Northern Territory government still will need to provide those universal platforms of custodial services and all of those sorts of things. If you’re – and we would not – we, PM&C, wouldn’t necessarily be involved in that aspect of monitoring. If we’re talking about money that is a special purpose payment or a national partnership payment to the Northern Territory, or something that we would fund out of the Indigenous Advancement Strategy to the Northern Territory, yes, absolutely, the expectation would be that we are monitoring that.

But what – going forward, you talked about the Northern Territory getting a significant amount of GST money?---Yes.

Compared to other states, proportionally?---Yes. Proportionally.

And you know that the figures in the Northern Territory in terms of the numbers of Aboriginal children being removed are staggering and they are going in the wrong direction?---They are certainly very significant. Yes. They are. And they are – and it is going in the wrong direction.

And you know that the evidence shows that the way in which that should be tackled is to deal with intervention?---Primary prevention.

Primary prevention?---Go upstream, not to the bottom of the hill.

So why not then have the Commonwealth providing guidance and oversight of the Northern Territory to make sure that GST money is spent in the right way on primary prevention and intervention?---So I would say, having been a senior state public servant, that one of the least welcome things is the Commonwealth telling a state how to spend its own general purpose revenue. I would say that – I think you’re talking to my colleague, Ms Baxter, later; she can talk about the national architecture around these issues, where that’s exactly what the Commonwealth is trying to do. It is more in the nature of exhortation, I would say, than – you know, we cannot force the Northern Territory government to do something. I suppose we ultimately could because it’s a Territory, but in day-to-day business, we negotiate and collaborate. So we can certainly work to that end, yes.

And you want to make sure that your money is not wasted, obviously, that’s given to the Northern Territory?---And that’s – you know, one person’s – you know, you’re spending it on a hospital or you’re spending it on youth justice or you’re spending it on a road or the – my Northern Territory colleagues would say none of it is wasted.

You don’t want to see it spent on building prisons for young people when the evidence suggests that doesn’t work?---Absolutely. I think in the balance between justice and welfare, we’ve swung too far up here to justice. Tough on crime makes


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everybody feel good. We need to bring back more of a welfare approach, which takes us upstream, close to families, assertive interventions, intensive, money located around the person. All the good principles that we can glean from best practice.

Can I ask you a question about the Growing Them Stronger Report. Are you familiar with that report that was released in 2010 by the NT government?---Only generally. Only generally, yes.

Can I just ask you, with that in mind you may not be able to answer this question, but I will just see. There’s a specific recommendation 9, which I might ask the operators to bring up, which related to the Commonwealth Government, and I will just give you a moment to read that there on the screen.?---Yes.

You would agree, of course, that women’s safe houses, day care centres, health clinics are vital in terms of providing practical support for families to keep kids in the community?---Absolutely. Yes. Absolutely.

Are you aware of whether or not the Northern Territory government did contact the Commonwealth and ask for fund anything that regard?---No, I am not. I’m not saying it didn’t. I’m just saying I am not aware.

Would you excuse me for a moment, sir. Your Honour, Counsel Aassisting is just indicating that my time is up. Ms Graham has kindly indicated that I think her questions have been answered, so if I might steal five minutes of her time.

COMMISSIONER WHITE: You certainly may, and how generous of - - -

MS GRAHAM: ..... I will just have probably three questions.

COMMISSIONER WHITE: Thank you, Ms Graham. She definitely owes you, I should say.

DR DWYER: I will remember, your Honour.

Can I move to the national partnership agreement for legal assistance that you talk about, sir?---Yeah.

It includes funding for Aboriginal legal services. You agree with that?---Yes. Yes, run by my colleagues at the Attorney-General’s Department. Yes.

Alright. And certainly the Commonwealth recognises the vital role that Aboriginal legal services play in meeting unmet legal need?---Yes.

And that’s not always a politically palatable thing to do in terms of the funding of ALSs to meet the needs of vulnerable people; agreed?---It seems not to be. I mean, I’m no politician, but it seems not to be.


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But you certainly recognise without adequately funded Aboriginal legal services the system can’t cope?---Got to have Aboriginal legal services – well, the history tells us why we have them, yes.

As the need increases, for example, in the child welfare space, so too the funding has to increase to allow agencies like the ALS to meet the need?---I think it depends what interventions we’re talking about and how those Aboriginal legal organisations structure themselves. So if we’re going upstream, for example, if in a year’s time we want to go upstream, they mightn’t be – I don’t – they mightn’t be the appropriate organisations to be upstream, but maybe they will. It’s kind of a stock and flow problem. There’s a stock of hard-core legal work and then there’s that flow in. And it depends where we’re positioning money along that continuum.

To the extent that legal work is there and is necessary, for example, people with a need to be provided with legal advice and representation, then the Commonwealth have to provide adequate funding for the ALSs to do that?---It’s important that organisations are funded, yes.

And NAAJA – I withdraw that. And that cannot be subject to the political whims or changes of government, can it? You need to have that funding in place and committed to?---Cannot - - -

Should not?---Should not? Look, my sense is all – all money is subject to political processes. It’s very hard to say that money, Territory money, Commonwealth money, is not subject to political processes in a democracy.

But in order to ensure that the services can be properly provided and unmet legal needs can be met, those services should not be subject to political whim?---I think certainty is a really important principle in the funding of all organisations.

You’re aware that NAAJA is a justice agency and, in fact, provides for many services?---Yes.

Including through care?---Yes, that’s right.

And your government is committed to evidence-based approaches including through care?---Yes, we’re quite excited by the possibilities for through care.

Right. You’re familiar with how successful NAAJAs through care program has been?---Yes. Yes, I am.

Finally, so you agree that there are loud calls at the moment for justice targets to be introduced in closing the gap reports?---Yes, I am.

Has that been done yet?---So, COAG, at a recent meeting, agreed, as we go through the process of refreshing the closing the gap agenda, to negotiate with Commonwealth future targets, including the notion of state and territory targets. So


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that subject to negotiation with the states and territories, a justice target might be better located at a state and territory level because states and territories have the levers to do with justice, but then report it in a collective way nationally. So we’re still negotiating that with states and territories.

COMMISSIONER GOODA: But isn’t that the – you could have the same argument about education, and that is a COAG – you know, close the gap target, or health. Like the states and territories are responsible for the majority of those things?---I think if I reflect on the kind of strengths and weaknesses of the closing the gap agenda, and having been in a state government, one of the challenges is the closing the gap agenda feels like in Sstates and Tterritories is something done to you, not with you.

A bit like our Aboriginal communities feel?---A bit. A bit.

I don’t want to be flippant?---A little bit. And so in refreshing the closing the gap agenda what we are trying to do is collaborate with states and territories to come up with a framework that better reflects the responsibilities of government. So it’s less a report card by the Commonwealth on the failings, alleged failings of states and territories and more a report by COAG that articulates how governments are doing generally in their areas of responsibilities.

DR DWYER: But doesn’t including it in – taking just for the moment the call for a national justice target on the number of Aboriginal and Torres Strait Islanders imprisoned, if that was included in the closing the gap report, doesn’t it signal that the Commonwealth regards it as a vital human rights and sustainability issue to monitor that?---I think that’s a decision by COAG, and I come back – there’s a distinction between the Commonwealth and COAG. And if the Council of Australian Governments said yes, it’s important, then that would be a signal by all the governments in Australia that they saw that they wanted to sign up to better set of outcomes.

You agree that the AMA, I think in 2015, was calling for that to happen?---Yes, I am.

And there’s a recent PricewaterhouseCoopers report, is that right, from this year?---Yes. Yes. I’m familiar with that report.

And what’s the thrust of the recommendation from that report in terms of including it in - - -?---It’s driving straight towards a national target.

And finally, the other suggestion from the AMA in the 2015 report that you also include a target for justice reinvestment diversion, in the closing the gap report?---Yes, and I think that’s a harder one.

Why?---To be really honest, when we look at reinvestment agendas, we have to negotiate with Treasuries who, in the end, hold the purse strings. And Treasuries


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take the view that we can’t price in second round effects. So Treasuries will argue, if we divert somebody, we can’t count the saving. And so there’s a mechanism in the bowels of government that make those reinvestment agendas very hard to do. There’s evidence that says they absolutely work but not always in all circumstances.

You agree that PricewaterhouseCoopers have evaluated justice reinvestment in Burke, for example, and conclude that this is the economically responsible way to move forward?---They have, and the Burke model is a very good model.

COMMISSIONER WHITE: Thanks, Dr Dwyer. You might have given away all your questions. Ms Graham?

<CROSS-EXAMINATION BY MS GRAHAM [12.44 pm]

MS GRAHAM: Thank you.

Mr Tongue, as you know, my name is Felicity Graham and I appear for Central Australian Legal Aid Service. A number of witnesses have told this Commission that the Northern Territory government will be unable to implement the recommendations that follow without substantial Commonwealth funding assistance. Are you in a position to say whether the Commonwealth has set aside substantial funds planned to enable the implementation of the recommendations that will follow this inquiry?---I don’t have full visibility of all Commonwealth budgeting but I’ve certainly not had a conversation with anybody that we should do that, no.

Are you in a position to say whether the Commonwealth is committed to ensuring that adequate funds are made available to ensure implementation of the recommendations?---That will ultimately be a decision for Ccabinet, Federal Cabinet.

The Commonwealth recognises that adequately meeting legal needs of Aboriginal children and families is critical to decreasing over-incarceration of Aboriginal people. Do you agree with that?---It’s certainly very important, yes.

And it’s critical to reducing the overrepresentation of Aboriginal people in the child protection system?---It’s important that there’s adequate legal processes in place, yes.

And adequately meeting the legal needs of Aboriginal children and their families can only take place if there’s adequate funding by the Commonwealth to Aboriginal legal services; do you agree with that?---Yes. I think it turns on adequate.

And in that regard, the Commonwealth does hold the levers in relation to whether justice targets can be met or not, vis-à-vis Aboriginal people?---I think in your line of logic, I would argue that it doesn’t quite sort of flow through like that. All sorts of matters bear on targets. That’s our experience with the closing the gap agenda and

.ROYAL COMMISSION 26.6.17 P-5021 A. TONGUE XXN©Commonwealth of Australia MS GRAHAM

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attributing rises or falls in targets to one thing, we’ve found, doesn’t really work. There’s multiple factors. I would say, for people caught in the justice system, adequate legal representation – clearly incredibly important.

Thank you, Commissioners.

MR CALLAGHAN: I’m sorry?

MS BARRETT: Thank you, Commissioners.

COMMISSIONER WHITE: I’m so sorry. I just really thought that you were just there with a watching brief.

<CROSS-EXAMINATION BY MS BARRETT [12.47 pm]

MS BARRETT: No, Commissioners. I just have one point of clarification for Mr Tongue.

Mr Tongue, you were asked a number of questions about exhibit 581, which is the document that was handed up today entitled Australian Government Remote Staff?---Yes.

And the number of IEOs and GECs versus the numbers that are recorded in paragraph 38 of your statement?---Yes, that’s right.

Can I take you to the bottom – sorry, exhibit 581 refers to the information being correct as at March 2017?---Yes.

Compared to your statement which says May 2017 at paragraph 38?---Yes.

Could that explain the difference in the numbers?---It would be one of the factors, yes.

And you wouldn’t disagree with me that if I told you that as of today there are 26 GECs and 29 IEOs employed, you wouldn’t disagree with those figures?---That was more my memory of where we were, yes.

Thank you.

COMMISSIONER WHITE: That seems to be a big catch up over two months.

MS BARRETT: We are trying, Commissioners, to find the explanation for the difference in the numbers. There is a concern that it might refer to people who are living within the communities versus something else, but we are not sure what the

.ROYAL COMMISSION 26.6.17 P-5022 A. TONGUE XXN©Commonwealth of Australia MS BARRETT

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discrepancy is. We will endeavour to find that out and provide that information to the Commission.

COMMISSIONER WHITE: Thanks, Ms Barrett. Mr Callaghan?

MR CALLAGHAN: And that’s of course along with some other information that Mr Tongue has indicated that - - -

COMMISSIONER WHITE: Yes. You have got a big homework list, Mr Tongue?---I’ve got a bit of – I’m used to it.

MR CALLAGHAN: On that basis, I have no further questions. If Mr Tongue may be released.

COMMISSIONER WHITE: Yes. Indeed. Well, thank you very much, Mr Tongue, for your assistance to the Commission. As you can imagine, we are vitally interested in all of these things and we know your staff must have worked long and hard to produce these documents in the relatively short time that you had to do so. And we are also grateful for you to undertake a continuous search for the things we have asked for. And it may not have ended yet?---No, that’s fine. I’m absolutely happy to assist the Commission, of course.

COMMISSIONER WHITE: Thanks. Thank you.

COMMISSIONER GOODA: Thanks?---Thank you.

<THE WITNESS WITHDREW [12.49 pm]

MR CALLAGHAN: I call Roslyn Baxter.

COMMISSIONER WHITE: What’s our plan with Ms Baxter, given it’s nearly 10 to 1, and I know we are running quite over with her, but it becomes more difficult because she is on a video link.

MR CALLAGHAN: I understand that we are in a position to switch straight to it. I am also told, I think, that she has a commitment at 2 o’clock, if we can - - -

COMMISSIONER WHITE: Well, then, we just have to march on then.

MR CALLAGHAN: If we can march on, and perhaps if everybody, including myself, is conscious of the need to be as brief as possible.

COMMISSIONER WHITE: Alright. Just – perhaps – I will just see whether our transcriber would just like a few minutes break, because she has been going fairly continuously.


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MR CALLAGHAN: I may have misinformed you. Apparently Ms Baxter is available at 2 o’clock, if that affects the - - -

COMMISSIONER WHITE: I just really need to work out what is the sensible way of proceeding. I mean, we have been going since 8.30 this morning.

MR CALLAGHAN: Yes.

COMMISSIONER WHITE: And – not – counsel haven’t, but we have, and some others have.

MR CALLAGHAN: Yes. No. Well, I – in the Commission’s hands, but that information I had earlier has been corrected, so she is available at 2, I understand, if that makes a difference.

COMMISSIONER WHITE: We will press ahead with Ms Baxter, if that’s the plan.

MR CALLAGHAN: If it pleases the Commission.

COMMISSIONER WHITE: Then we will take a lunch break for half an hour or so and Professors Arney and ..... can probably be alerted that we will be starting them a bit later.

MR CALLAGHAN: Yes. I call Roslyn Baxter.

MR ..........: Hello, Roslyn Baxter is here. Can you see us?

MR CALLAGHAN: Yes. We have Ms Baxter. You are on the screen in the Commission room and I think you take an affirmation; is that correct?

MS BAXTER: Yes, that’s correct.

COMMISSIONER WHITE: Thank you, Ms Baxter. Can you see Commissioner Gooda and myself?

MS BAXTER: I can. Hello.

COMMISSIONER WHITE: Good. Well, I will just administer the affirmation to you now, Ms Baxter.

<ROSLYN BAXTER, AFFIRMED [12.52 pm]

<EXAMINATION-IN-CHIEF BY MR CALLAGHAN

.ROYAL COMMISSION 26.6.17 P-5024 R. BAXTER XN©Commonwealth of Australia MR CALLAGHAN

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COMMISSIONER WHITE: Thanks, Mr Callaghan.

MR CALLAGHAN: Your full name is Roslyn Baxter?---That’s correct.

You are employed by the Department of Social Services as the group manager of the families group, which is responsible for issues such as children’s policy, family safety, family policy, programs and income management; is that correct?---Yes, I am.

You prepared a statement dated 15 June 2017, you would seem to have a copy of that there. A copy of it is available in the Commission room; is that correct?---Yes, it is. Thank you.

I tender that statement.

COMMISSIONER WHITE: That’s exhibit 585.

EXHIBIT #525 STATEMENT OF ROSLYN BAXTER DATED 15/06/2017

MR CALLAGHAN: Ms Baxter, at paragraph 3 of your statement, you describe the Commonwealth’s role in child protection as one of support and go on to speak to the development of the national framework for protecting Australia’s children?---Yes.

And you state that it represents an unprecedented level of collaboration between Commonwealth, State and Territory governments and non-governmental organisations to protect children; is that correct?---Yes.

In the context of the Northern Territory, and turning your mind to the concept of an early intervention service, are you able to give any example of an early intervention service being delivered in the Northern Territory which demonstrates how this collaborative approach works in practice?---Yes, I am. So there are a number of actions which are undertaken underneath the rubric of the national child protection framework, which you just mentioned, and then there is the Commonwealth’s invested in the early intervention service that we call ITFS, the Intensive Family Support Services in the Northern Territory. I’m not sure whether you specifically wanted me to speak to early intervention underneath the framework or whether you were interested in the outline of the Commonwealth’s investment in the specific early intervention services NT based.

I probably just wanted anything that – a specific example just demonstrating how the collaborative approach worked?---Yes. Sure. So underneath the national child protection framework, under our most recent action plan, there are three ..... that we are focusing on, and one of those is around early intervention ..... for a child. Underneath the national child protection framework and that particular action plan, the Commonwealth and the States and Territories are working together to try to


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identify what are the best mechanisms for intervening early ..... collaborative ways, and there are a few things we are doing in order to progress that work. One of those is that we’re running a trial around the first thousand days of a child’s life and how you ensure services work best collaborative together. We are also funding, under the national child protection framework, some specific funding to look at what works particularly in Indigenous communities in the first thousand days and early intervention, and that’s via some funding for preliminary work being undertaken by Professor Kerry Arabena, and her Indigenous first thousand days work. More recently and, in fact, today here in Melbourne, I’m here with the States and Territories under the child protection framework having conversations about ideally what does early intervention at a community level look like ..... way, and it’s building off things like the Commonwealth’s investment in Family Support Services in the Northern Territory, which I can talk to a little bit more if you like and give a more concrete example.

Alright. We will probably keep things moving, if we can. You have indicated that the framework is currently in its third action plan; that’s correct?---That’s right.

And if we look at annexure C to your statement, and go to page 4 in the box at the top of that page, it is said that states and territories commit to continuing to fully implement the Aboriginal and Torres Strait Islander child placement principle. This Commission has heard evidence about the Northern Territory’s compliance with that principle, which might be amongst the worst in the country. What action has been taken under this plan or what action could be taken under this plan to improve the Territory’s application of this principle?---So clearly the national child protection – can you still see me?

Yes?---Clearly, the national child protection framework does not specifically focus on the Northern Territory, but there is a great interest, as you pointed out, under this action plan for a focus on the child placement principle. So the key action in this plan is that we have developed an Aboriginal and Torres Strait Islander working group, which is chaired by SNAICC and it sits underneath the national forum. It’s looking at the application of all five dimensions in the child placement principle arising from a concern that traditionally the focus has been purely on just the placement and there are a number of other dimensions to the principle as well. That working group is looking at how you can identify compliance with that framework from each of the States and Territories, how you can increase better information and support for the States and Territories ..... for all five dimensions and how that adherence or otherwise can be reported on. Now, the development of that framework had taken some time, but the Aboriginal and Torres Strait Islander working group having worked very closely with all four members on that. We anticipate that ..... been providing us ..... reports ..... about how that work is going and we expect there were about – the best way to measure compliance to land at this next national forum ..... which I think is occurring next month. The other thing that we can do under the – and have been doing under the national framework is to use our reporting framework to look at what is being done in each of the States and Territories. So specifically under the national standards of out-of-home care, there are some


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standards that relate to the ability of children to remain connected to culture, kin and country while they are involved in out-of-home care. And the Commonwealth, the national child protection framework, has been funding a national survey of children in out-of-home care and the AIHW, the Australian Institute of Health and Welfare, have been preparing report cards for us on that. At the moment, 2017, we’re very much in a ..... phase to understand just how well those five dimensions are being applied, and we expect that the analysis will occur in 2018 with the report to be released at the end of 2018.

Can we - - -?---So I guess there are a number of strands to that work. There’s this very detailed identification and support work being done by the Aboriginal and Torres Strait Islander working group and ..... a very specific - - - – -

Sorry, can I just – yes, I understand. Can I – I’m sorry to interrupt you, but can we go back to the question of compliance with the child placement principle. You say that some work has been done on that and some conclusions have been reached or some - - -?---I wouldn’t say that conclusions have been reached yet. I would say that while the Commonwealth doesn’t play a role, we don’t – the Aboriginal child placement ..... for the most part refers to the statutory roles of States and Territories, the Commonwealth plays a role ..... leadership and child protection framework - - -

Sorry, to get - - -?--- - - - in putting that together - - -

- - - to the point, what has the working group achieved on that issue on compliance - - -?---So the Aboriginal - - -

- - - what are they delivering?--- - - - and Torres – the Aboriginal and Torres Strait Islander Wworking Ggroup on the actions under that action plan is that we will look at all five dimensions of the child placement principle, how well it is being implemented across the States and Territories and what else, in which other ways support can be provided to ensure that principle is implemented fully, not just the piece of the principle that we’re mostly dealing with, but all five dimensions of it. Which includes things like participation of children once they are in out-of-home care. Now, the working group has been undertaking that work, it is expected to shortly report back on how they might most appropriately report compliance against that principle, and the sorts of resources they are planning to work with the States and Territories on to give some support to the application of the principle. The other .....

Okay. Sorry to interrupt you, can I just get some detail about when that working group report is available. Is it going to be of use to this Commission is my question?---I don’t know that they will be reporting in a written format. We are anticipating they are reporting back to our next national forum meeting which occurs next month. The place where there is some tracking going on of the ways that children in out-of-home care are ..... is to write a report on the national standards of out-of-home care. And those standards are ..... by the AIHW, and they are reported


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in their regular report cards. The last one was produced 12 months ago. The next one is expected to be the out-of-home care survey that I spoke about a moment ago.

Alright.

COMMISSIONER WHITE: Ms Baxter, is it the case, then, that the SNAICC Wworking Ggroup will not be issuing a written report as a result of its survey. It will just feed that material – that data into the Australian Institute of Health and Welfare?---No, there are two separate pieces of work going on. There is a piece of work going on under the national forum, which is where States and Terrorises, Commonwealth and the non-government organisations come together, and that piece of work is really interest understanding education and development. That is led by SNAICC - - -

I understand?--- - - - .....

I understand?--- So they’re looking at what else can be done, what can be provided, what’s working, what’s not working, what support ..... can be provided. Separately from that, the Commonwealth funds the AIHW to report on the national out-of-home care standards - - -

Yes?--- - - - and, as part of that - - -

I understood that. Thank you. Thank you?---Yes.

It was really what the destination of the SNAICC survey was going to be. Thank you.

MR CALLAGHAN: Alright. Can I just switch tack. As we interpret the material provided by Mr Tongue and yourself, it’s – Prime Minister and Cabinet is the lead Commonwealth funding agency that’s relevant to child protection in the Northern Territory, but the lead Commonwealth agency is DSS; is that right?---So DSS has responsibility for the national child protection framework, but most funding is still provided by Prime Minister and Cabinet.

That’s right. What involvement does DSS have, if any, in the fundings decisions of - - -?---So we make – so we don’t – we don’t have involvement in the Prime Minister and Cabinet funding decisions, but we do make decisions about our own funding. The most significant of which in the NT are the Intensive Family Support Services and the communities for children program.

Do you have – you have to co-ordinate the delivery of the services; is that right?---Our services, DSS services.

And in order to do that, do you have access to some sort of map of services that are currently provided in the Northern Territory?---Well – so - - -


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I’m talking about specifically in the area of child protection?---Yes. So as I mentioned, our two key children and family-related investments in the Northern Territory are the Intensive Family Support Services and the communities for children. Both of those services operate on a community development type model. So in relation to communities that we are going into, we would endeavour always first to have a good understanding of what are the services that are in place now and how can the service that we’re putting in place ensure that ..... the right organisation and can work with what is in place now. I can talk to the process of how we do that. We’ve most recently initiated new services in ..... Yuendumu, so I can talk about how we undertook that process. We also - - -

Yes. I understand. I’m not so much interested in individual processes but the proposition – and you refer for example in paragraph 63 to the fact that there’s no central repository or record of all the programs or services and associated funding provided specifically for the Northern Territory; is that right?---That’s right.

And it’s this lack of any central sort of single body of information that I’m concerned with and how that affects the decision-making process. It would be helpful, would it not, to have some sort of central repository of learning on this topic?---All of the good information we can get about communities of work is always very helpful and anything extra we have could be useful. I can tell you that we do seek to build a picture, when we’re looking at particular interventions or when we’re working on particular programs about what exists in place and what exists around it. I do have very good relationships with my counterparts at the Prime Minister and Cabinet and Indigenous Affairs, the Department of Health ..... program – sorry, the Department of Education ..... and so the Department of Health, which would be the four of us together would hold a lot of the key pieces of funding that impact on children and families. And I think we are all very aware of the need to work as closely as we can in the planning of our services with the limitations that we have.

And – sorry, Commissioner.

COMMISSIONER GOODA: Just one question: Mr Tongue told us that the government engagement coordinators and Indigenous engagement officers in communities help coordinate government’s activity, if you like, in communities. Does your department take part in those exercises?---So they are – they are our Prime Minister and Cabinet resources, but certainly we would feed material into them when they’re seeking information about programs and services, and we would also use them to plan services. So as I said, for example, our recent process of looking to place an intensive family support service at Yuendumu and ..... those Prime Minister and Cabinet on the ground resources will be really critical to us in working with the community on the development of those services.

MR CALLAGHAN: Could I just ask you a couple of questions about the intensive family support service?---Sure.


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Because concerns have been expressed about a lack of cultural knowledge, lack of cultural capacity among service providers in the Northern Territory. The IFSS appears to be provided in a number of remote communities. Did any or all of the service providers in those communities have a presence in them when the contract was granted?---So I can tell you that of the nine intensive family support providers, five of them are run by Aboriginal community controlled organisations.

Right?---And our preference and our great desire, in the establishment of those services, has been to develop services in those ways. In some places we haven’t been able to have access to a service that is local and Aboriginal community controlled. In those, what we’ve always done is undertaken a community development process first so that if services have grown out of the conversation with the community about who is best placed to run this service, how can we do it, this model is premised on the idea that you try as much as possible to go with the local organisation and to support that you wraparound it another larger organisation that might be able to provide some of the workforce capacity building, organisational planning, some of the things that those smaller, perhaps, community controlled organisations might not have as much skill and expertise in. So this model actually comes with specific funding for an implementation capacity support service that works right along side that partner.

Yes?---So we think it’s a model that, you know, really does stand up to that test of trying to work with community ..... and out of community, and wrapping support around that community where possible. The two locations that we’re about to bring online, as I said, will bring a total number of its providers to nine and the service locations to 26. So this is a – it’s a $50 million investment by the Commonwealth.

Can I explore similar themes in relation to the communities for children program?---Yes.

That has been running in the original three sites of Palmerston, Tiwi, East Arnhem and Katherine since 2005; is that right?---That’s right.

It’s a national program?---It’s a national program, but as you’ve indicated, the four sites in the Northern Territory - - -

Yes?--- - - - and it’s – it, similarly, has a focus on trying to promote coordination at the regional and local level. So it includes – the idea of that service is that you move away from kind of ..... to a number of services in the community to funding and facilitating a partner we call it. So a single organisation that doesn’t provide the services, but the role is to bring together the services within a community, look at what the needs are, what is required to be met, and that there’s some collective consensus about where the funding needs to be directed to by the committee, by the ..... committee in each community. Basically, the idea is the facilitating partner then subcontracts community partner services, and that can range from things like parenting support services, play groups, the kind of intensive support services we talked about before across a whole range of things that might be required for children


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and for families in that community, but it does not deliver the services itself. The idea being - - -

Just to clarify: the facilitating partners are Red Cross, Anglicare and Smith Family; is that right?---So they are – I’ve got them listed here – yes, I think you are right. There’s Smith Family, Anglicare and ..... pardon me – yes, you’re right, Anglicare NT, Red Cross and the Smith Family, and they’ve each got a five year funding agreement to 30 June 2019.

Just to go back to what you were saying a moment ago – well, just clarify what is the requirement, if any, for them to build the capacity with Aboriginal partner organisations?---So that’s absolutely a requirement under the communities of children model. It’s a whole of community approach to support early child development. The facilitating must maintain a communities of children committee, and that must include community representatives to help decide the services to fund, and based on agreeing what those community needs are, with a very strong emphasis on better coordination of local services. In those NT sites, we know the community partners are, for the most part, Aboriginal controlled organisations because they’re the services that are largely available on the ground in those particular communities. So I don’t have the exact break down of community partners here, but I can tell you that that’s absolutely the basis on which the model is premised.

Alright. Thank you. That’s all I have for the moment.

COMMISSIONER WHITE: In paragraph 59 then, you are talking about the research found that facilitating partners was supportive of and tracking well with the reforms. Is that some research that’s in written form that the Commission could access?---So the Commission has requested access just very late on Friday afternoon, I’m sorry, Commissioner, to that particular report and - - -

Thank you?--- ..... related to these very small communities. We’re just checking that there’s nothing in that sensitivities or identifying material before it’s processed for release.

Thanks, Ms Baxter?---But I can talk in general terms, if you would like me to, to what it found.

Thank you.

MR CALLAGHAN: Yes. That’s been the subject of some communications.

COMMISSIONER WHITE: Yes, thanks. I hadn’t caught up with that.

MR CALLAGHAN: No, that’s recent. But that’s all I have for the moment. I think - - -

COMMISSIONER WHITE: Alright. Thank you.


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MR CALLAGHAN: .....

COMMISSIONER WHITE: We will get that report, if we can, so I will leave that for the moment. But Commissioner Gooda wants to ask you a question.

COMMISSIONER GOODA: Ms Baxter, at paragraph 53 of your statement, you talk about the Intensive Family Support Service and referrals to income management. So how did that – can you just tell us how that works?---So when the services began, there was a requirement that part of the referral guidelines were that families that were being referred were also referred to child protection income management, which requires a certain proportion of the family’ welfare payments to be quarantined and applied to basic life essentials to ensuring provision for the family and for the children. Now, just to explain how this works, the idea is that this is a home-based parenting modelling service, essentially. So the experienced parent comes in and works along side a parent that might be experiencing some difficulties. How they’re identified is generally that they come through notifications to Territory Families. So there is a notification, the idea is you can get this service in place very quickly, they can work alongside the family to support the family to work out how to provide the basics of life for the child. As I say, in the first instance, that was premised on the idea that families would also be referred to child protection income management. What we were finding, as the – each service went along, is that we weren’t getting the number of referrals that we were funding for, so we had these services that we put quite a lot of Commonwealth money into, that we established, we paid for implementation support partners, we just weren’t getting the level of referrals, given what we knew to be the level of need in the Northern Territory. So we worked with the Northern Territory Government to try to increase those numbers of referrals. We’ve had some very productive conversations with them recently on that, but we also worked with our local partners, the organisations we fund and the communities to try and understand what else could be done. They felt that it was a shame that families who perhaps, you know, weren’t being referred by Territory Families couldn’t access this very useful and important service, and so we developed two, I guess, other tiers of ability to enter into this service, the second tier is people who are on other forms of income management and the third tier is people who are coming through from community referrals like schools and community organisations. So we’re now finding that we are getting increasing numbers of referrals to the service and are working much more to the capacity that we have and are able to support people, given the very good results that we know and get from the service.

So when someone – I understand how they are referred from child protection to – and then income management kicks in, but if they’re referred by a community support worker or a teacher, does income management simply apply?---No. So the two things are unrelated. So initially the Commonwealth’s preference was that there was room for child protection management, because the Commonwealth had worked with the NT government at the time to set that mechanism up. But over time we have made these other referral pathways available. That referral pathway for a school or community worker is not related to the income management requirement.


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So the families can get the support they need without running the risk of having their income managed?---Well, I mean, as you will know there are many families who would be referred, maybe on income management anyway, given the coverage in the Northern Territory. But, yes, those community referral pathways are not linked to the income management. That’s tier one.

Right. So they can get the service – because, as you are aware, we’re told constantly about Aboriginal people’s negative view of income management. But I’m just glad you clarified it because it’s just not a barrier to getting the services. I can imagine a lot of people with income management was mandatory part of the service you’re providing, a lot of people would shy away from that?---Yes. I mean, I can tell you though that the Commonwealth’s preference is that we are receiving those tier one referrals that are coming through when there has been a notification, because the idea of the service is it would have the opportunity to intervention behalf a child is potentially taken to out-of-home care by teaching those skills, parenting, support budgeting, supervision and, you know, something that we know that services are very successful in doing.

Totally. And there’s a cheque and balance there with the referral coming from families, like, there has already been an assessment rather than just a referral from a teacher or a community worker?---Yes. I mean, the idea is that we want the resources to be going to the place where they, you know, are absolutely most needed and potentially able to prevent that movement into out-of-home care.

Yes.

MR CALLAGHAN: Thank you. That’s all I have.

COMMISSIONER WHITE: Thanks, Mr Callaghan. Dr Dwyer, do you have some questions?.

<CROSS-EXAMINATION BY DR DWYER [1.19 pm]

DR DWYER: Just five minutes, your Honour.

Ms Baxter, my name is Peggy Dwyer, I appear on behalf of NAAJA. That’s the North Australian Aboriginal Justice Agency, the ALS, you’re familiar with the work of Professor Silburn?---In relation to children ..... in out-of-home care?

Yes, that’s right?---Yes.

So in general terms, you’re aware, of course, that he says that since 2007 there’s a rapid and alarming rise in the numbers of Indigenous children in the NT who are in non-kinship care; you would agree with that?---Yes.

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And are you familiar with his work that breaking that down, the greatest percentage are removed because of neglect?---I am not familiar with that particular statistic, but I am aware of that fact generally, yes.

Alright. If I can ask you to accept that his evidence was that 47 per cent of Aboriginal children are removed because of neglect and that is very different to non-Aboriginal children where the greatest percentage were removed because of physical abuse?---Yes.

With that in mind, you accept that targeting the number of children removed requires tackling the causes of poverty and neglect?---I can tell you that the intensive family support service that I just talked about is focused on neglect and a measure of participation in the program and improvement and ability to ..... is based on the child .....

Do you also accept that, accepting the good work they do, targeting poverty and neglect also requires targeting health, housing, education?---Well, that doesn’t fall particularly into my purview, but it seems like a reasonable assumption.

Dealing with the national framework, which does fall into your purview, though, you refer to it at paragraph 12, you say that it sets a target for 2009 to 2020 of a substantial and sustained reduction in child protection abuse and neglect in Australia; correct?---Yes.

But do you accept that that will require a commitment to tackling the underlying causes of poverty, including health and housing and education?---Well, I can tell you that the framework itself is very focused on those things that are outlined in each action plan. So absolutely recognise that those things exist within a broad community structure of the things that provide children with health and wellbeing and that they are - - -

And does - - -?---That they are often discussed by ..... forum when we come together, but the specific work of the child protection framework is on that basis set out in each of the action plans.

Does the child protection framework provide a way of measuring a positive impact on health, housing and education?---So I can tell you that the overall measures for the child protection framework and particularly the standards of children in out-of-home care, they were a range of issues that are broader than just those who would traditionally think is related to child protection systems. So they do go to things like wellbeing, access to education, access to community ..... touching upon. So I think there is an understanding that these things exist within a broader community.

But does the framework provide a way of measuring concrete improvements in those underlying causes of poverty? Does it provide a target and a way of measuring improvements in those areas, health, housing, education?---It doesn’t – it doesn’t have specific indicators that go, in a global way, to health, housing and education.


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The national standards for out-of-home care do have indicators that go to some of those issues that you touched upon. They go to things like – let me tell you what they cover: health, education, care planning, connection to family, culture and community, transition from care, training and support for carers, belonging and identity and safety, stability and security.

Can I - - -?---So for the children who are really in the cross section of the child protection system they do cover those things, yes.

I just want to ask you about targets. You have set out the target there as – I’m quoting:

A substantial and sustained reduction in child abuse and neglect in Australia over time.

There’s no hard target in terms of reducing the numbers of Aboriginal children in out-of-home care, is there, in the national framework?---No. I don’t – actually, I would have to check that, I’m sorry, it has been a little while since I’ve gone through each of the targets but, no, I don’t think there is a specific one.

Can you see the value in setting a hard target so that it can be evaluated?---I do know that one of the activities that’s underway under the national framework at the moment, in particularly, the action plan, is looking at whether there’s a benefit in setting targets. At the moment we have a range of indicators that are reported on, but apart from that overall aim that you’ve mentioned there aren’t specific targets. And the group at the moment is looking at that issue of, you know, how and what, is it beneficial to look at targets of that nature.

Well, do you agree that it’s a little more difficult to evaluate the success of a national framework if it’s framed in terms of substantial and sustained reduction rather than having a clear target?---I think our attempt to make the substantial and sustained reduction something that we can put our hands on has been through that series of indicators and particularly it has devoted to out-of-home care but yes, I do understand .....

Last question: are you familiar with the family matters, strong communities, strong culture campaign, which is spear headed by SNAICC?---I am. We work very closely with SNAICC.

Are you aware that campaign aims to eliminate the over-representation of Aboriginal children in out-of-home care by 2040, that is, to reduce it to zero?---Yes.

That’s certainly a worthwhile aim; is that right?---Of course it’s a worthwhile aim.

Why not then enshrine that aim in the national framework. That is, to have – that by 2020 a specific reduction in the overrepresentation of Aboriginal children in out-of-home care?---Yes. That would be something that State and Territory Governments


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and Ministers and Commonwealth Ministers would need to agree collectively. And I am sure you can imagine, bringing the framework together in an area that it is as sensitive and is largely state owned as child protection, is always a ..... sensitive and complex exercise. So that would be something that would need to be put to those governments and those Ministers rather than the bureaucrats that are involved.

But setting a harder target is certainly something you can see a value in?---I think it’s – I can understand where you’re going, but I think it’s something that the framework and the forum as a whole would need to consider. There are also a range of implementations issues to doing that. We know, even with the indicators that we have, some of those are not able to be reported at the moment due to data discrepancies between jurisdictions that we’re working through. So it may be that even if governments did decide that was a worthwhile aim, it may be something that we need to do some work on to determine how feasible it is.

Is some of the reluctance to set hard targets because they’re easier to call out the failures of measures if those hard targets aren’t met by a particular time?---That’s certainly not been the case, for why there aren’t those targets in the framework at the moment. I was involved in the early days of developing the framework and have revisited it now several years later, and I do know that both those points in time, that certainly wasn’t the rationale that I’ve included. It was much more about what is it that is actually going to move our collective work together most effectively, and what is it that we are going to be able to report over time, watching those indicators mature as more data becomes available.

Do you have a role in recommending what’s appropriate, in terms of the targets and how you describe them?---So the national forum will have a role in recommending that to governments. The national forum includes representatives of the Commonwealth, the States and Territories and the national coalition of organisations for protecting Australia’s children. So they all come together in the national forum, and the national forum regularly considers ..... if there are other things that we need to be doing - - -

Do you personally - - -?--- - - - so that we .....

I’m sorry. I have to cut you off. Do you personally have a role in recommending what is appropriate in terms of setting targets?---I play a role in that forum, which would undertake the role of making those kind of recommendations.

And so you personally see a value in setting harder targets is my question?---Look, I think it’s one of those things where while it’s very attractive on the face of it to set a harder target, I see situations where those have gone either way, particularly if we don’t yet have the data maturity to be able to report on it. So I actually think the process that is being followed in the national child protection framework has been a very useful one, because it has driven states to more consistent reporting. It has produced things like the national out-of-home care survey, which didn’t exist before, is now fully funded, is driving commonalities and data between the states. So


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sometimes particularly in very sensitive areas where there’s not a lot of consensus, having a system that moves gradual over time to a place where you can report on and look at your data and understand how that ..... can be a really useful, and I think that has been the case in this framework.

I’m out of time. Thank you.

<CROSS-EXAMINATION BY MS GRAHAM [1.29 pm]

MS GRAHAM: Ms Baxter, my name is Felicity Graham, I appear for Central Australian Aboriginal Legal Aid Service. At paragraph 17 of your statement, you discuss the second action plan, which was for the years 2012 to 2015 and that in that action plan, governments and non-government organisations agreed to enhance the application and reporting of the Aboriginal and Torres Strait Islander child placement principle. Does the enhancing of the application and reporting of the Aboriginal and Torres Strait Islander child placement principle remain a key goal of the governments and non-government organisations, part of the national framework?---Yes, it does. I think I set out a few minutes ago that the most recent action plan, the third action plan, has a very limited number of strategies recognising that what we are trying to do is just do a few things very well. It has three core strategies and one - - -

I’m going to cut you off there and ask my next question about the second action plan: one of the key outcomes to be achieved under the section outcome plan was that an Aboriginal child placement compliance indicator was to be developed; is that right?---Yes. So that – my understanding is that that was largely implemented through the national standards for out-of-home care, and the national standards for out-of-home care were refined to include a standard that related to belonging and identity and ongoing connection to family, culture and community. Through that action that was referenced in the second action plan, we began the development of the national survey of children and young people in out-of-home care, which was to provide the data for that. That’s then been taken further by this action plan, in which the Aboriginal and Torres Strait Islander working group have that cross-cutting action of looking at what can they do with the material they now have through that survey to improve compliance with the child placement principle across all the jurisdictions.

Okay. Ms Baxter, could I take you to a document created by SNAICC in June of 2013, and this was after a workshop had been conducted to try to identify how practically the compliance and monitoring, in relation to the Aboriginal and child placement principle, could be improved, and particularly if we go to page 8 of that document.?---I don’t have it.

COMMISSIONER WHITE: It should be on your screen.

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MS GRAHAM: Has it come up on your screen?---It has. Thank you.

You’ve spoken in your evidence earlier today about the five elements of the Aboriginal Child Placement Principle. Are they the five elements that are there described on the screen? That is: preservation – or, rather, prevention of removal of Aboriginal children from their own family and community - - -?---Participation.

- - - participation of the Aboriginal community organisations in all decisions relevant to Aboriginal children and programs, the placement hierarchy - - -?---The certainly ..... I’m sorry, I don’t have it in front of me but I know they do relate to participation, preservation, prevention. So, look, I mean, I have to take your word for it ..... I don’t have it in front of me, but SNAICC certainly do lead Aboriginal and Torres Strait Islander working group ..... which is looking at how this is being implemented across all of the jurisdictions.

Is there currently an agreed national indicator for whether or not or how to measure compliance with the Aboriginal Child Placement Principle?---My understanding is that the work that the Aboriginal and Torres Strait Islander working group are doing led by SNAICC is going directly to that issue. How do we measure, how the jurisdictions are doing this and how do we promote compliance, educate, provide information and support jurisdictions to get better at doing this.

Why has it taken so long to merely develop the indicator for what amounts to compliance with the Aboriginal Child Placement Principle, if this is still ongoing work of the working group, as I understand it?---Well, I think what I would say is that is compliance with the principle is an issue for State and Territory, statutory child protection systems. They relate to decisions of statutory child protection systems. And I think that what has happened over time is that there has been a growth in recognition among framework members. So each of the jurisdictions in the Commonwealth coming together that perhaps national leadership on this might help to drive this forward. So there have been attempts to wrap some rigour around that issue, and the example I gave you before is in terms of national standards, the out-of-home care and looking at how that placement principle is embedded in those through the matters of belonging and ..... community that I mentioned before, but I think there has been a recognition that more needs to be done and that’s where this particular body of work under the third action plan is coming from.

Thank you, Commissioners.

COMMISSIONER WHITE: Thanks, Ms Graham.

MS GRAHAM: Might I invite Ccounsel Aassisting to tender that report by SNAICC.

MR CALLAGHAN: Yes. I tender that.

COMMISSIONER WHITE: Has it been tendered already? We have heard from it quite a bit. I just wonder if it has? No? Well - - -

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MR CALLAGHAN: I’ve got some things to tender so why don’t we do an audit - - -

COMMISSIONER WHITE: Have a look and see and, if not - - -

MR CALLAGHAN: - - - and I will tender it if hasn’t been.

COMMISSIONER WHITE: - - - it will go in, Ms Graham. Yes, indeed. Thank you, Mr Lawrence.

<CROSS-EXAMINATION BY MR LAWRENCE [1.35 pm]

MR LAWRENCE: Thank you.

Ms Baxter, can you see and hear me all right?---I can. Thank you.

That’s grand. My name is Lawrence, I’m engaged as counsel for the Danila Dilba Health Service, which is up here in Darwin. Do you know that service?---I do.

Have you ever been in Darwin?---Yes, I have. Yes.

Have you lived in Darwin?---I haven’t lived in Darwin, no.

Right. I just want to take you to your statement, please. Firstly, at paragraphs 9 and 12, so it pages 2 and 3, just briefly, to have you confirm that the Department of Social Services in its strategy agrees and has respect for the varieties between the different jurisdictions. That’s at paragraph 9?---Yes.

And at 12, you focus on early prevention, early intervention, sorry, rather than responding to the problem. That’s your philosophy, that’s your strategy, that’s your approach; correct?---Yes, that’s right.

And, of course, up near in the Northern Territory, the fact is that – I think it’s 90 per cent of referrals or notifications that are made in relation to children that could be in need of care, are Aboriginal?---Yes.

And a lot of them are from communities out in the rural area. Okay?---Okay.

Now, if I can just ask awe couple of questions on the intensive family support service, which is covered at page 10 and paragraphs 51 through, I think you said in your evidence that this program operates on a community development type model?---That’s right. In the sense that we don’t put an intensive family support service into a community until there has been considerable work done in their community without ..... the need for it, what might be the appropriate organisation and how it will be developed.

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Alright. Well, bearing in mind that I act for Danila Dilba, which is a health service that has been up and running for almost 20 years for Darwin and Palmerston and that region, are you able to tell us what inquiries you make of the local community before you choose your service provider?---I can’t tell you specifically in relation to that community, but I can tell you that the kinds of things that we do, when we’re implementing an intensive family support service, and we have done with our most recent services that we put in place in Lajamanu and Yuendumu is that we tend to focus on using what we call a restricted application process that’s informed by significant community engagement. So that’s a process that allows us to move away from a more conventional, more formal tender model. And that’s so that we can have quite a lot of community involvement in the selection of providers. We know that communities are keen to utilise Aboriginal community controlled organisations. So ..... recently selected provider in Lajamanu and Yuendumu is the Warlpiri Youth Development Aboriginal Corporation, which is an Aboriginal controlled community organisation. It was put forward by those communities as part of that process of working with them on the fact that they have been identified as potentially communities that needed this service. In terms of deciding where might be communities that might value and benefit from the service, we look at things like some of our key datasets relating to disadvantage. So the Australian development ..... and the data, we look at ABS data, and we do joint service mapping and planning with other government agencies and particularly in the NT, that is our PMC network, and so with other community – with other Commonwealth organisations which might deliver a service like health and education. We look at the availability of other complementary services in the area. So for example, IFS – the IFS role out has been linked to the availability of other early intervention services, like, the strong communities for children services. And that’s to ensure you’ve really got that ..... services available across that community. IFS being at the very, kind of, pointy end where there usually has been a child protection notification. Then you have - - -

Well, let me just - - -?--- - - - ..... so - - -

- - - ask you – forgive me for interrupting you, but let me just ask you about other organisations that cover the field. And let’s go back quite a few years. Never mind Yuendumu recently, etcetera, his came in from the Board of Inquiry, didn’t it, this strategy?---After the ..... inquiry.

Yes. That’s correct, isn’t it?---Yes, that’s right, yes.

Now, what consultation did you have with Aboriginal controlled health organisations to assist you in making any decision to outservice these services?---To – the decision to what, sorry?

Before you make a decision to contract Anglicare or CatholicCare or Save the Children, what consultation did you make with Danila Dilba or their equivalent in Yuendumu or ..... as to what they thought would be a good service to do this function?---I’m sorry, I can’t tell you specifically whether we consulted – whether Danila Dilba were involved in those consultations in that work, but I can tell you


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that, as a general principle, the organisations who are involved in that community are spoken to, community representatives are spoken to and it is a process of checking: is this a service that the community wants, is this a community that has a need for this service and then undertaking a process of working through with community what might be the most appropriate organisation. But I can’t – I don’t have information with me about the Danila Dilba specifically was involved in those conversations, either at the outset or in the most recent round.

Well, Ms Baxter, I do and my information from my client is that they weren’t consulted by the Ddepartment as to what they would think would be a good organisation to fulfil the function that they were contracted to do; do you disagree with that?---I don’t know. I’m sorry. I - - -

COMMISSIONER WHITE: She’s in no position to disagree, I think, Mr Lawrence, because of her previous answer.

MR LAWRENCE: I accept that. Thank you. Similarly with the communities for children program, before anybody is chosen by the Department of Social Services, is there a policy that requires them to consult with an equivalent Aboriginal controlled organisation as to their view on what would be appropriate to fulfil this service?---So I think, as I mentioned before when I was talking about communities and children, that is similarly the development of communities for children ..... partner, follows a process of speaking to organisations in that community relevant to children and families service sector, and that those consultations inform decisions about which organisation will be provided to be a facilitating partner. However, even if an Aboriginal community controlled organisation is not a facilitating partner they are represented on the ..... committee in that community and they do take part in decisions about how funding should be allocated, and in the analysis of data about where the need is and what the service gaps are.

Perhaps I will end with this question: is it feasible for the program, as it’s set up, to require direct – firstly, direct consultation with the Aboriginal controlled organisation in the proposed community. Before you go anywhere else – so say the equivalent would be Danila Dilba, we want – we’re thinking about Anglicare, we’re thinking about CatholicCare, first of all, we should really consult the Danila Dilba service, which covers this field anyway, as to what their view is and who they think could, and should, do this; is that feasible?---My expectation would be that if we’re – we’re either a communities for children program or an IFS program in to a community - - -

Yes?--- - - - and there is a substantial community – Aboriginal community control organisation operating, servicing, touching upon the lives of those lives in that community that we would be talking very closely with them.

You would be. But can it be written in as a policy for you so that it actually happens?---That would certainly be something we could consider. It’s not a policy now, but the policy is that there is this community consultation and that is a very serious component of what we do in putting these services in place. If a significant


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organisation had been left out of that process, that would be something I would be interested in more information about, I would be talking to my colleagues who implement the service about and we could certainly look at that, you know, as we go forward in the program because it’s absolutely a cornerstone of what both of these programs are about.

You do appreciate the difference between community consultation, whatever that may mean, and actually directly going to a professional Aboriginal controlled organisation that covers that field?---Yes, I do. Yes. And I’ve talked a little bit in the IPS process about how we’ve done that.

Thank you. That’s all, thank you.

COMMISSIONER WHITE: Thank you, Mr Lawrence.

MR CALLAGHAN: I have nothing further of the witness.

COMMISSIONER WHITE: Ms Barrett, nothing from the Commonwealth?

MS BARRETT: No. No questions.

COMMISSIONER WHITE: No.

MR CALLAGHAN: May the witness be excused.

COMMISSIONER WHITE: Yes.

Thank you very much, Ms Baxter, for the assistance to the Commission. We know that you are very busy and are grateful for all the trouble that you have taken to assist us?---Thank you.

<THE WITNESS WITHDREW [1.46 pm]

MR CALLAGHAN: I will attend to the administrative matters of the exhibit after the adjournment if that’s convenient.

COMMISSIONER WHITE: That will be a good idea. You might need to make some inquiries about the SNAICC document.

MR CALLAGHAN: I will do that and organise that .....

COMMISSIONER WHITE: Yes. We will resume at 2.30.

ADJOURNED [1.46 pm]


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RESUMED [2.37 pm]

MR CALLAGHAN: Commissioners, can I attend to some paperwork and tender some documents that need to find their way into evidence.

COMMISSIONER WHITE: Yes. Thanks, Mr Callaghan.

MR CALLAGHAN: The appendices to the witness statements this morning weren’t as simple as they sometimes are. So I have to tender a series of appendices as separate exhibits. Can I first tender appendix 2 to the statement of Andrew Tongue dated 15 June 2017.


EXHIBIT #586 APPENDIX 2 TO STATEMENT OF ANDREW TONGUE DATED 15/06/2017

MR CALLAGHAN: Turning then to Mr Tongue’s statement of 21 June 2017, can I tender appendix 1.



MR CALLAGHAN: And tender appendix 3 to that statement.



MR CALLAGHAN: To the statement of Ms Roslyn Baxter dated 15 June 2017, there were four appendices which I have to tender separately. I tender appendix A.


EXHIBIT #589 APPENDIX A TO STATEMENT OF ROSLYN BAXTER DATED 15/06/2017


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MR CALLAGHAN: Appendix B.

COMMISSIONER WHITE: B is 590.

EXHIBIT #590 APPENDIX B TO STATEMENT OF ROSLYN BAXTER DATED 15/06/2017

MR CALLAGHAN: Appendix C.

COMMISSIONER WHITE: 591.

EXHIBIT #591 APPENDIX C TO STATEMENT OF ROSLYN BAXTER DATED 15/06/2017

MR CALLAGHAN: And appendix D.


EXHIBIT #592 APPENDIX D TO STATEMENT OF ROSLYN BAXTER DATED 15/06/2017

MR CALLAGHAN: I tender the Australian National Audit Office performance audit – Indigenous Advancement Strategy.


EXHIBIT #593 AUSTRALIAN NATIONAL AUDIT OFFICE PERFORMANCE AUDIT – INDIGENOUS ADVANCEMENT STRATEGY

MR CALLAGHAN: I tender the Stronger Futures booklet.


EXHIBIT #594 STRONGER FUTURES BOOKLET

MR CALLAGHAN: I tender the National Partnership on Northern Territory Remote Aboriginal Investments.


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EXHIBIT #595 NATIONAL PARTNERSHIP ON NORTHERN TERRITORY REMOTE ABORIGINAL INVESTMENTS

MR CALLAGHAN: I tender the community safety implementation plan to the national partnership on Northern Territory Remote Aboriginal Investment.


EXHIBIT #596 COMMUNITY SAFETY IMPLEMENTATION PLAN TO THE NATIONAL PARTNERSHIP ON NORTHERN TERRITORY REMOTE ABORIGINAL INVESTMENT

MR CALLAGHAN: I tender the IAS grant guidelines.


EXHIBIT #597 IAS GRANT GUIDELINES

MR CALLAGHAN: I tender the evaluation plan 2016, Indigenous Affairs group, PM&C, May 2016.


EXHIBIT #598 EVALUATION PLAN 2016 INDIGENOUS AFFAIRS GROUP PM&C MAY 2016

MR CALLAGHAN: And tender the SNAICC, S-N-A-I-C-C, Aboriginal and Torres Strait Islander child placement principle aims and core elements document.


EXHIBIT #599 SNAICC ABORIGINAL AND TORRES STRAIT ISLANDER CHILD PLACEMENT PRINCIPLE AIMS AND CORE ELEMENTS DOCUMENT


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MR CALLAGHAN: If it please the Commission, I might just say a few words about the nature of the evidence that is about to be received. And, indeed, starting with Mr Balis this morning, the Commission embarked upon a course of evidence in which you will be asked to consider alternatives to the child protection and youth detention systems of the Northern Territory. Of course, over the last nine months you have heard extensive and, indeed, sometimes shocking evidence about the failings in those systems.

You heard such evidence from children, parents and kin, employees of community organisations, frontline government workers, managers, and even Ministers. All of that points to the need to consider what should be done by way of reform to those systems. And reform is possible. It has been achieved elsewhere, both in this country and many others and in systems that were in as dire need of reform as was the Northern Territory’s. To demonstrate, you will hear from a number of domestic and international experts who have been part of successful reform efforts in other jurisdictions.

In child protection, you will hear that a focus on effective, meaningful and community-led early intervention can minimise the level of statutory responses required and thereby improve the circumstances and wellbeing of vulnerable children and their families. Under the heading of youth detention, you will hear of a need to shift to a system that diverts young people out of the justice system and back to their homes or into community-led programs. And this allows those systems to focus on health, therapeutic and educational outcomes. Of course, this is more humane to young people who are detained but, importantly, it improves the prospects of community safety.

We will learn that the implementation of such changes requires political and bureaucratic commitment; tinkering at the edges will not suffice. Committed leadership across politics and agencies and indeed all sectors of the community is required. And you have heard from and will continue to hear from many committed Territorians who are already champions of reform and who run successful community programs from the Top End to the Barkly region, to Central Australia.

It is unlikely that the measures we will hear about this week can simply be parachuted into the Northern Territory without adaptation and nor should they be taken to be suggestions that might undermine the genuine efforts of those living in the Northern Territory, those who know about the local dynamics and who understand the specific needs of this community. However, it is possible to learn from the successes and failures of reforms to other systems, both here in Australia and systems in North America, New Zealand and Europe. There are some fundamental principles that underpin lasting reform in child protection and youth detention and their potential application here might, subject to adaptation, be something that should be considered.

And, of course, as with any potential reform, it must be the subject of consultation and co-design, and we encourage all interested parties, all parties interested in this


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Commission pay heed to the evidence that we will receive this week with a view to the achievement of reform that is enduring and empowering. We will continue on that theme that we commenced with, with Mr Balis this morning, as Mr Dighton will adduce some evidence relating to child protection theory and policy, and I’ll allow him to introduce that, if it please the Commission.

COMMISSIONER WHITE: Yes. Thank you, Mr Callaghan. Mr Dighton.

MR DIGHTON: Thank you, Commissioners. Commissioners, I call Professor Fiona Arney and Professor Leah Bromfield.

COMMISSIONER WHITE: Would you kindly move the chairs down otherwise Professor Bromfield gets hidden been the screen and we can’t see you. Professor Bromfield, now you have got comfortable, would you mind standing up again.

<LEAH BROMFIELD, AFFIRMED [2.45 pm]

<FIONA ARNEY, AFFIRMED [2.45 pm]

COMMISSIONER WHITE: Thank you. Would you kindly be seated. Thanks, Mr Dighton.

MR DIGHTON: Thank you.

Professors, to start, and I will ask you jointly: you have both prepared a précis of evidence for the Royal Commission and it is dated 23 June 2017?

PROF ARNEY: Yes.

PROF BROMFIELD: Yes.

MR DIGHTON: Thank you. Commissioners, I tender that précis of evidence and its two annexures.


EXHIBIT #600 PRECIS OF EVIDENCE PREPARED BY PROFESSORS BROMFIELD AND ARNEY WITH TWO ANNEXURES DATED 23/06/2017

MR DIGHTON: Thank you. Thank you, Commissioners.

.ROYAL COMMISSION 26.6.17 P-5047 BROMFIELD/ARNEY ©Commonwealth of Australia

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The – if I could turn first to you, Professor Bromfield, and ask you about a foundational proposition contained in your précis, and that is that it’s the case that the premise of a child protection system was far narrower when it originated than it is in its expanded conception today; is that fair?

PROF BROMFIELD: That’s correct. So our contemporary child protection systems have their origins in the 1960s, when, in the US, Kemp and colleagues discovered the battered child syndrome. Do you want me to go on?

MR DIGHTON: Yes, thank you.

PROF BROMFIELD: So that landmark and catalytic study, what they were looking at was children with multiple bone fractures. It was evident from radiology and also infants with head injuries, so subdural haematoma. From that, they kind of hit upon this idea that there was some parents who actually were intentionally harming their children, and that was the catalyst for our contemporary child protection systems. The assumption was that that was a small problem – the rare event, and they designed a system that was really based on that fundamental assumption. So it was what we call a reactive system, Commissioners.

COMMISSIONER WHITE: It does seem to me quite late for that to have dawned upon .....

PROF BROMFIELD: Yes. I suppose we’re often late to catch up with what community see. But it was, prior to that there were philanthropic responses, but they were typically trying to protect society from the children rather than protecting the children. So children used to be – for example, they used to be charged with neglect and we were trying to ensure the moral – to save children from a poor moral upbringing.

So the contemporary child protection systems which really seemed to – it was when – there was the medical model was introduced and the battered child syndrome came about; it was really one of those big shifting points and perhaps it was the – I am supposing here – that perhaps it was the power of that medical voice being brought in over the philanthropic system and kind of women’s volunteer work that saw quite a big change in response. So we saw the introduction in the states of mandatory reporting and what we call a reactive system. So - - -

COMMISSIONER WHITE: Presumably, too, X-raying would have revealed breaks because children do not actually often show that they have broken bones, and so I suppose when that became more a way of trying to work out what was wrong with a child that cried, they discovered the breaks and so on.

PROF BROMFIELD: Yes. I think it was - - -


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COMMISSIONER WHITE: It is still quite extraordinary, isn’t it, to think that children who were thought to be in moral danger would be locked up as a sort of punishment rather than look at the cause.

PROF BROMFIELD: It is - - -

COMMISSIONER GOODA: Do you think it was around, you know, how we sort of evolved, the discipline of children in those days was pretty extreme. And it was a bit of a hands-off approach from the, if I can call them, the authorities, you know.

PROF BROMFIELD: Yes. Prior to that, you had to do a very significant damage to your child in order to be considered unfit. You know, it wasn’t – there wasn’t a lot of the state forcibly intervening in the lives of families. And so that was really the big change as a result of this new medical knowledge. It was the medical professionals then were advocating to say, “We must have a proper response for these children.” And so they responded with contemporary child protection systems.

So on the assumption that the problem was small in scope, they had a system that relied on key professionals really keeping an eye out and if they suspected a child was being abused then making a report to child protection, and then the assumption was that that – that child protection services would investigate – so it was an adversarial response – investigate and would forcibly intervene in the lives of families, where that family was unable or unwilling to properly – to provide proper care for their child. So that is the foundation of our contemporary statutory system. So it’s a reactive and a coercive system is the origin.

MR DIGHTON: I will pause you there because it bears on where we go next. And understanding that historical context, has the design of the system evolved with its change in nature or have the fundamentals stayed the same while it strains to cope with the much greater workload?

PROF BROMFIELD: Well, the system – since that time we have seen the scope of child protection in terms of what comes in expanded considerably. So from the bone fractures and subdural haematomas of the sixties, we have seen – and a focus on physical abuse – we have seen now child protection systems responding to physical abuse, sexual abuse, neglect, emotional abuse and in the 2000s to start to include exposure to family violence as well.

So we have seen the harm types broaden out substantially in that time. We also saw the threshold start to decline. So instead of waiting until a child had multiple bone fractures we are now looking at harm thresholds in terms of bruising, developmental delay, psychological harm. Those are developments that are clearly based on changing social values and evidence. And they are good things, in my view.

But what hasn’t happened, apace with that, is a reconsidering of whether this reactive system that was designed on an assumption of a small problem, was the right system. And so reforms have assumed that despite that broadening scope and lowering


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threshold, that those families who were reported to child protection services were still being – this was the assumption – substantively reported for matters that were below the threshold for statutory intervention. So what has been referred to as kind of low to moderate severity maltreatment.

And the assumption was that those families would welcome support and that what we needed to do was to provide early intervention. And so you see that at the heart of most reform to the child protection system from the 1960s, it’s not been a fundamental change of approach from that reactive system; it’s really been an attempt to demand-manage what has been coming through the door.

And so we see a push around differential response, so trying to kind of stream out families who are at that low to moderate severity maltreatment and provide early intervention to families with what was assumed to be lower complexity problems and those who were hitting the statutory threshold.

MR DIGHTON: If I can turn to you, leading off from that, Professor Arney, how have that assumption and the related consequences of it been either demonstrated or suggested by the research to be unsound?

PROF ARNEY: So most recently we’ve had the Nyland Iinquiry into the child protection systems in South Australia, and those fundamental assumptions around child abuse and neglect: (1) that they were relatively rare, the occurrence and incidence of child abuse and neglect were rare. The second, that they were easily detectible, that you would be able to identify children through a matter of screening either the notification or an assessment process as to whether abuse and neglect had occurred.

And also that the bulk of children who were reported to child protection systems should never have been reported to them, what’s called the needle in the haystack phenomenon, have fundamentally underpinned not only the design of the child protection system, as Leah has said, but also the reforms that have been the focus of numerous inquiries we refer to, Board of Inquiry, Relay; there is inquiry after inquiry after inquiry all based on those fundamental assumptions that we need to better screen, better divert families from the statutory system.

The Nyland Commission of Iinquiry, the Nyland Royal Commission tested some of those assumptions. And the things that they tested were of those matters that have been screened out of the statutory child protection system in South Australia, would they have actually met the legislative threshold set in South Australia, which was serious risk of significant harm for those children. So the system had screened them out. And in 90 per cent of the cases that she examined, it was a small sample, but it was 90 per cent of those cases, she found that actually they would have met the legislative threshold for a statutory response.

She also looked at other matters further in the child protection process that had also been screened out, closed no action receiving no response and when she looked at


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those matters, actually more of those matters should have had a priority response than had happened. And that was in about 75 per cent of the cases that she looked at. What this fundamentally means that the reforms, including what we had recommended, Leah and I had recommended to the Growing Them Strong Iinquiry which was find better ways to screen children out and get them to supports was a fundamentally wrong assumption.

Actually what was being reported to child protection did meet a legislative threshold and we had actually developed systems that were not responding to need and progressively as we’ve developed these systems, as Leah has described them, that are reactive systems that tried to identify whether child protection has happened or not and we actually turn them away, I equate it to like an emergency department where you turn 80 per cent of the people away and you hope they won’t ever come back and see you again. In fact, they come back repeatedly and about 80 per cent of child protection business is repeat business. And that’s because we haven’t actually identified that those children need some form of response which we have been failing to give them.

MR DIGHTON: And so just stepping through that chain of reasoning, the Growing Them Strong Together report identified that as many as 75 per cent of matters were screened out either at the point of notification or were not investigated. And, sorry, you are nodding, but just for the transcript - - -

PROF ARNEY: Sorry. Yes.

MR DIGHTON: Yes. Thank you. And at – you have mentioned this already. At page 157 it said that the increase in the total number of notifications but the decrease in the proportions of substantiations emphasised the increasingly difficult job of finding the needle in the haystack. But, stepping through the assumptions, now, it’s more that – to labour the metaphor, that there’s a lot more needles than we first thought.

PROF ARNEY: Absolutely. There are far more needles than had first been thought, but because the system did not respond to them, rather than focusing on the children in those notifications and what the children’s needs were, in making our recommendations and our advice to numerous inquiries, we had assumed that because the system didn’t respond to them, that they did not require a response. We had assumed that the system was making an accurate judgment about those children and their needs and had misinterpreted the system response for the response that children actually required.

COMMISSIONER WHITE: Is there also an suspect of more up to date medical research as well at play here, which wasn’t so apparent in 2010 with the Board of Inquiry? It wasn’t so main stream, for example, the effect of neglect in language development and skills from very early childhood, the effect of not being the recipient of physical violence but seeing it between others so that often people would


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say, well, the parents, of course, fought like cat and dog, but they loved their children and didn’t touch them.

PROF ARNEY: Certainly.

COMMISSIONER WHITE: So now we know the damage that can do. So these are changing factors too, are they not?

PROF ARNEY: Absolutely. Over time we see a change in what the research evidence tells us is damaging to children’s development. At the time in 2010 when we supported the Growing Them Strong Together Iinquiry, we were pretty certain that the impacts of child abuse and neglect could be both lifelong and damaging to the emotional, mental and physical development of children. We were quite clear on that. Unfortunately, we had assumed that the prevalence of the problem of child abuse and neglect was as low as the system made it appear to be, and that has been what has greatly – we call it the game-changing view.

If the prevalence of child abuse and neglect is actually as high as it has been estimated – triangulating research from both – that supported the Nyland inquiryInquiry, so Professor John Lynch has looked at the number of children that hit the child protection system by age 11 in South Australia, and that statistic is one in four, together with Commissioner Nyland’s research that examined that maybe most of those matters should actually be being reported because we had left children in a state where we weren’t responding to them early enough.

But also with results from retrospective adult recall prevalence studies. So where we ask adults about their experiences of abuse and neglect as children, they’re actually telling us that the rates of abuse and neglect are quite high, including as high as 12 per cent of penetrative child sexual abuse for girls, 8 per cent for boys. Rates of exposure to domestic violence that are as high as 23 per cent. Rates of physical abuse that are as high as one in five. So when we actually combine that with the prevalence data this should not be a surprise to us but we haven’t, that insight has developed over time and is yet to hit most child protection reform methods and systems.

PROF BROMFIELD: If I might add to that. It’s not that we didn’t – in 2010 we did have an understanding of cumulative harm. So it’s not that we were saying that families who were being referred to child protection were not in need, but we were talking at that point – here and internationally we were talking about children in need versus those in need of protection. And we were really grappling with, I guess, what was the level of complexity within families and also what was the level of coercion required.

So by coercion, I am talking there about the statutory child protection system is both implicitly and explicitly coercive. When you knock on the door, straightaway from the first knock, there’s an implicit threat that if you don’t comply, your children could be removed. So it’s a coercive system. So we were really grappling with


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where is the line at which the state should be coercively inserting itself into the lives of families.

COMMISSIONER WHITE: That presumably was seen, at least at a policy level, as quite a fundamental philosophical issue to resolve.

PROF BROMFIELD: Absolutely.

COMMISSIONER WHITE: We have already heard evidence from former politicians who in fact thought that the role of the state was not to intervene very much at all into this field and to deal with children at risk, by that by being at acute risk.

PROF BROMFIELD: That’s correct. And I don’t think we should ever stop grabbling with that issue. We should never become so immune to our own rhetoric about engaging families and walking alongside them that we forget that every time we knock on the door for families there is that fear and for many Aboriginal children and families it is a real fear. Children are being removed at great numbers. So we shouldn’t shy away from the fact that this is a coercive system. I think we should be really open about acknowledging the role of coercion in child protection, and constantly questioning whether we’ve got that line right.

But I think that, you know, in kind of grappling where that line was we made some assumptions around, not whether children are in need, but I guess the level of risk that they were presenting with. So we were saying that yes, we think that these cases are matters of perhaps – there was language around kind of low severity neglect. And so in 2010 we were still talking about how, if we just looked at that single incident, that it wouldn’t be sufficient, that incident alone wouldn’t be sufficient to reach the statutory threshold.

What Margaret Nyland found was that even the incidents alone, so taking aside the issue of cumulative harm and whether we were looking for that, she found that just looking at that incident, that 90 per cent of the incidents that were being screened out by the system actually met the statutory threshold. So either we got it, you know, hugely wrong in 2010 or things have escalated rapidly in terms of the complexity families are presenting with since then, or perhaps a combination of the two.

MR DIGHTON: And to what extent, in that sense, can the deficiencies of process and procedure, whether it be case load, inaccurate tools, poor decision-making, disguise the true numbers?

PROF BROMFIELD: So there’s multiple ways. So one of the things that we didn’t know in 2010, in terms of that graph you have on the screen, there’s a hidden statistic in there that we’ve since discovered. So we had looked at the key decision points that were being reported in child protection data. So we looked at the reports to child protection and we looked at the investigations and the substantiations, and we


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assumed that investigations completed was a good indicator of the quality of the notifications.

So we had assumed that that investigations completed was the test of whether or not things were meeting the statutory threshold. And then substantiations being the next best qualifier, because actually an investigation had been undertaken and the incident verified. Since then, and again this is research that we’ve conducted in South Australia, but there is evidence of this across the country now that we know where to look, and it is this hidden and unreported statistic, and that is those cases that are assessed as meeting the statutory thresholds which are screened in for child protection but which aren’t investigated due to lack of capacity, because there – the investigation is not completed, it’s not finalised, it’s not counted an investigation.

So in South Australia Margaret Nyland found that was 60 per cent of matters and in some regions it was 80 per cent of matters that were screened in as requiring a statutory investigation within 10 business days were being – 80 per cent were being screened out due to resource constraints and those matters were not being investigated. So that’s one – one way that tools and systems hide the complexity of the problem.

COMMISSIONER GOODA: So what we’re hearing is this problem is just massively huge.

PROF BROMFIELD: Yes.

COMMISSIONER GOODA: You’re talking in paragraph 2, one in four children, 25 per cent of children.

PROF ARNEY: Absolutely. This was the game-changing statistic for us in South Australia, and it makes the next step seem quite daunting about what do you do with something potentially of that magnitude and it means that the residual child protection system that we have is absolutely not fit for purpose. One, it’s not a system of prevention. It’s a system that responds after the fact. It’s the system you call when you suspect something has happened.

So we don’t have effective Territory wide or jurisdictional systems of prevention and early intervention. We have kind of deferred those matters to the statutory child protection system. What Leah is describing and what I have described is that while we have said those matters are for statutory child protection, that system is not responding either. And so what we see over time is this process of matters requiring – matters escalating and concerns for children and their families, circumstances potentially deteriorating over time until they do get screened in to a point where they will receive an investigation.

And often we situate services and supports for families at that incredibly late phase in the case, where if we had actually intervened far earlier, once these children first were known to us, or even before, through other systems in schools and health


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services and community services, but what we are actually seeing is because you – because the resources are limited in child protection, because the scope of the problem is so big, they cannot and will not be able to get to all of those matters, and matters need to be this bad before a response is jettisoned and by that stage we are intervening far too late.

PROF BROMFIELD: And in fact we are growing the problem with that approach because, as Fiona says, escalation is built into our system. So our intake and assessment of cases: it’s based on the assumption – in the Northern Territory we structure decision-making and we have tier one, tier two, tier three. Tier one and tier two matters are those assumed to get an investigation. So the structured decision-making tool is making an assumption that you are going to get to all of the tier one and tier two matters.

And so the preliminary screening tool that is done at intake is not a risk assessment per se. It’s not asking which child is at the greatest risk of harm. It’s saying these are all children who meet the statutory threshold. They’re tier one or tier two. They all meet our threshold. What they’re prioritising in terms of a tier one is those where the imminence of harm is greatest. So you need to get out within four hours, a day, because we’re worried that a child is living in a household with a sexual predator or we’re worried that the parents are trying to take the child from the hospital and they’re just not equipped to care for it.

So there needs to be an imminent response. That’s what prioritised in a tier one. There is an assumption that that is about risk. But really the tier one, it’s saying tier one and tier two, they are all at risk, they are all hitting the threshold; we need to get out to them most quickly. Unfortunately, when you’ve got a system that can’t cope with the demand, that’s in fact not getting to all of the tier ones and all of the tier twos – I should say all of the tier twos, that tends to be what’s not seen to – then those matters go unallocated or cases get closed, and so those children are not getting a response. The tier twos aren’t getting a response. And so they – we allow those children to drift through the system and the family problems to become more entrenched and the problems for children to become more entrenched.

And so we are in fact growing the problem. So by the time they, if they ever hit a tier one and get in the door, get kind of through that front door of child protection, someone goes out to see them, the family problems can be very dire by that point. Or we might see kids who just never actually hit the imminence test and they drift through their childhood, through the child protection system, with 10 or more reports to child protection and no significant or meaningful intervention for them.

COMMISSIONER WHITE: There’s no system, is there, for bringing in, when you have a number of notifications which are deemed to be very low level, tier three, if you like, where absolutely no further sort of investigation is done, and yet there doesn’t seem to be any system for gathering up, “Goodness me,” you know, “We’ve actually had five of these calls from different neighbours,” if you like. And yet surely that’s a signifying fact.


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PROF BROMFIELD: Yes, that’s correct, Commissioner. And that points to the issue of cumulative harm. And so what we’re – what we talk about in terms of cumulative harm, is that if children are left in situations where, whether it’s low or moderate or severe maltreatment, if they’re left in these situations over time, then each incident is accumulating in terms of its impact on the child and seriously compromising their development and wellbeing. A system that prioritises imminence is rarely going to prioritise child neglect.

And, in fact, that’s the dominant maltreatment type within the Northern Territory. So we have a fundamental problem in that our system is not prioritising getting to child neglect. And yet that’s the maltreatment type that we would expect to be chronic. Neglect is the very nature of neglect is not that a child has not had their lunch once, it’s that a child is persistently hungry; that their ear infections are persistently untreated, causing hearing loss. It’s that they have persistently not had an adult interact with them and so they have poor speech development, they have poor attachment.

So it is, by its very nature, a chronic form of maltreatment. But none of those things are likely to trigger a system to say we must get out there within four hours, because there’s an imminent risk. But it doesn’t change the fact that that child, if they are experiencing chronic neglect, is at great risk of harm. And the impacts research in relation to child neglect is now showing that child neglect is at least as harmful as physical and sexual abuse and can actually be more harmful. And we have a system that is not designed to respond early to prevent child neglect and those cumulative impacts.

COMMISSIONER GOODA: So when you say we can’t leave the child in that environment, that doesn’t necessarily mean removing a child from the family.

PROF BROMFIELD: No.

COMMISSIONER GOODA: I think we need to clarify that a little bit otherwise we - - -

PROF BROMFIELD: So what we – so our kind of insight into the system is that by not prioritising these families, in fact we are allowing the situation to escalate and become more entrenched and we are actually more likely to, when we finally get there, remove. We would say on the basis of this knowledge we should be intervening earlier. We should be intervening in cases of neglect.

We should looking at what’s the earliest point of intervention and providing the level of support that would be required to help that family to change; that we should be looking at those – we should be reanalysing our systems data, not based on a cross-sectional approach, which is, “Who came through the door this month and can we get to them?”, but start looking longitudinally.


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We have been doing some of that work also with child protection data sets, and what’s that’s showing to us is that for infants who are reported in the first 12 months of life, that they’re much more likely to be repeatedly reported over their life course. And of those children who have got 10 or more notifications so those already in the multiple report category, the vast majority of those were known to the system during infancy.

So we already see a critical point of intervention. And so we are hypothesising that if you get an unborn child report or a report during the first two years of life that that is a signal to act early. Get into that family then and provide the intensive support to prevent the cumulative harm and to prevent that escalation that may eventually trigger removal.

COMMISSIONER GOODA: So is it – like, I’m struggling with some of the concepts here at the moment about what it says about us as a society when one of four children are at risk. But is it – the response seems to me not necessarily in the child protection system. Like, it’s a whole-of-education, early childhood - - -

PROF ARNEY: Absolutely.

COMMISSIONER GOODA: - - - you know, postnatal.

PROF ARNEY: You’re absolutely right, Commissioner. What we have relied on is the child protection system to be that response and in fact other systems may screen families in greatest need out of interventions because they either don’t meet the service criteria, they may present too late in pregnancy, they may have too many complexities, so where there’s family violence indicated then workers may not feel safe going to that family.

So we almost actively screen families with highest needs out of services, apart from Family Support Services and Intensive Family Support Services. But equally some of those families may not want to engage with services. They may not feel safe there. They may not want the scrutiny of services. There may be a range of reasons. And we need to find the way in which we can find the support in those universal services that is both appropriate for the problems being experienced by the families, because these will be complex families with highly complex needs, but also enables that early engagement exactly as you are saying.

We would recommend a prioritization of support and looking at what options, early intervention options are available in the antenatal and early infancy period; they will be critical for a generational plan for change. But they utilise different systems as well. They utilise Aboriginal community controlled system. They utilise the health and hospital systems, early childhood and child care systems.

So a response like that does not say, “Let’s leave it up to child protection.” And the matters that Leah was discussing, that early notification around child neglect, that gets weighed up across a whole range of other matters on any particular day. It’s not


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going to make – it’s not going to be prioritised for response if people are having to go out to those acute incidents. So we need to equip our other services to respond to have alternative approaches to be able to have those systems of support in communities.

COMMISSIONER WHITE: So you are suggesting you tap into the universal care systems so that there is no discriminatory factor involved and it can alert the health providers at the clinic or whatever it is that everybody goes, or the schools.

PROF ARNEY: Absolutely. Absolutely. The difficulty we will see, and we have seen in some services, is that those services are soften described as voluntary. A lot of non-government services are also described as voluntary as well. So where a family may not be willing or in a stage where they feel they can engage with a service, they may still not receive a service. So we need to think about ways in which families can be strongly encouraged, if not required, to be able to utilise those supports.

COMMISSIONER GOODA: Which in itself presents a whole lot of issues because I think Commissioner White and I and everyone else who is involved in this is – the deep suspicion of Aboriginal people, particularly of welfare - - -


COMMISSIONER GOODA: - - - in the Northern Territory, that covers a whole range of things. So the minute you feel like you are under scrutiny the first thing you are going to think is, “Geez, they’re going to come and get my kids.”

PROF ARNEY: Absolutely. Absolutely.

COMMISSIONER GOODA: And lots of work needs to be done to - - -

PROF ARNEY: It is. It’s a big problem, and that’s why when people ask us for off-the-shelf answers, there’s no jurisdiction – South Australia has only had this realisation in response to the Nyland Commission of Inquiry and have set up the architecture to be able to determine what they should be doing for something of this magnitude through their early intervention research directorate. They have said we can’t come up with an off-the-shelf answer because there has been no off-the-shelf answer to this problem. No one has had this realisation at this point.

And I think that’s why we need an approach that involves community controlled organisations, it involves Indigenous leaders to help develop what the solution is. It’s not going to be necessarily something that more services can be thrown at necessarily. This will be about community-based plans of action to respond – to set up preventive systems, to identify strong families and communities and a range of different things that can happen at local levels, in addition to Territory policy.


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MR DIGHTON: Just drilling down on that one in four statistic, to pick up where Commissioner Gooda went. At paragraph 2B of your précis, you note it is a significant proportion of children that are assessed as being below the statutory threshold but experiencing levels of abuse of exploitation that do justify statutory intervention. Do we have the data, either South Australia, Northern Territory, anywhere in the jurisdictions to accurately estimate the population of that significant proportion.

PROF ARNEY: No, we don’t. The states and territories do a lot of reporting on child protection activity. So they report on notifications. They report on the tier rating those notifications are given, the number of investigations, the number of substantiations. They don’t necessarily look into the level of need that children have, and, in particular, the absence of any kind of prevalence study of the levels of abuse and neglect and vulnerability to children is completely absence in Australia. We have not had prevalence study of child abuse and neglect.

There has been a report that was conducted for the Royal Commission into institutional responses to child sexual abuse that scoped what might be required for a prevalence study of child abuse and neglect. We are still waiting for that to occur. It makes it incredibly difficult to design a system if you don’t know the extent of the problem. We are having to extrapolate. As I said, we are triangulating data from a number of different sources which includes adult recollection, statutory child protection data, birth cohort studies, to say this is likely the scale of the problem. But we certainly don’t know the true scale of the problem because we don’t have the data to help us identify that.

MR DIGHTON: And if, on the basis of what we do know, even though we may not be able to measure the problem precisely, if that invalidates the traditional process of traditional approaches to child protection systems and the pathways into them, so that we can properly understand the points of departure, what are the key differences between the system has been and where you think the system needs to go.

PROF ARNEY: So the system has typically relied on child protection as the port of call for concerns about children. And then what child protection does is it tries to sift through those reports and determine what it will respond to and what it won’t respond to. In some jurisdictions we’ve seen what’s called differential response, which is child protection making a determination that, “We won’t respond to those matters but we will refer them to other services and supports.”

In every jurisdiction where that has occurred, the agencies responding to those reports have identified the high level of complexity in families and the high level of child need that they weren’t equipped to deal with. So that has been the standard response: “Come through the child protection door and we will determine whether you should be here or not and if there are supports available, we will divert you to something else.”


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Essentially, this scale of problem says that we need to rethink how we can reduce risk to children in their families and communities. We need to identify why abuse and neglect is occurring and then we need to create a system that says what’s the earliest possible point of intervention or how can that be prevented through a range of actions. Sometimes those actions will be child safety related. Sometimes they might be sitting in the health sphere.

And I give an example. So we did some work in a remote Aboriginal community that looked at child sexual abuse and the range of matters that were being reported around child sexual abuse and those matters were quite vast. And the community were telling us that there was only a response when concerns became really bad; that there was not necessarily a system for preventing abuse to children; that you could only get things mobilised. And some of the risk factors that were identified in that community were that the strong protective family members often had to leave those communities or make a decision to stay and become very unwell because they needed dialysis treatment. And that meant when they were out of the community, that children may be highly vulnerable.

In that case, the solution is not necessarily a family intervention support service. The solution is having the ability to access dialysis treatment on communities. It’s a health response about the ability for protective adults to remain in that community rather than saying this is a child protection matter.

Similarly, in that same community, they identified that there were children who were engaging in sexual games with each other, that they were with playing these sexual games with each other and what was identified was that children were incredibly bored. It was very boring and there was not a lot to do and they were unsupervised and actually one of the solutions there was to extend the school year. So that children would go to school for more and to extend the hours of the swimming pool so that kids had healthy proactive games to engage in.

Those solutions are sitting in an education sphere and a community services sphere. They are not sitting in a child protection sphere. So that’s the kind of thinking that needs to happen around child abuse prevention, is not necessarily just seeing it as a whole service of – a service spectrum, but it’s a whole of community approach to identifying risk factors and identifying strategies to reduce those, that all systems can, “Yes, absolutely, we can make a change in that aspect of care.”

COMMISSIONER WHITE: From a government point of view, of course, you’ve got the challenge of siloed departments, no matter how much people talk about the need to break down the silos and have committees that meet every now and then, it’s still, on a day-to-day decision-making basis about, like the things that you’ve been talking about, it just doesn’t seem to happen.

PROF ARNEY: Exactly.


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COMMISSIONER WHITE: Have you thought about what might be the bureaucratic or departmental response to these sorts of needs?

PROF ARNEY: Commissioner, you are absolutely right. We still have siloed responses and it depends on the good will on any particular day as to whether those kinds of strategies will get up. In terms of – I think in one in four statistic enables us to get better traction. As horrifying as it is, this is something, if this affects one in four children in education, if this affects one in four children in health, if this affects one in four children in any system that we have, this is everyone’s problem to be solved.

And I think the Territory environment at the minute where we have a Minister for Children who is also the Treasurer and the deputy Chief Minister may provide those opportunities. I think we need the ability to require collaboration, that that is an expectation. And one of the things that we don’t see happening a lot is the ability of those departments to think more flexibly about what they do. We see it often as, “This is my job in this, and I will repeat this job.”

So the ability to have localised plans with – and we have commented on this a lot – the ability to pool funds across a range of activities, both Territory and Commonwealth and I would think philanthropic as well – there’s a significant philanthropic investment in the Territory – to develop better plans of action that can then be implemented across systems would be one of my suggestions.

PROF BROMFIELD: The thing that we – we understand that governments work in a particular way and so what we try and offer governments in order to make change implementable is processes that they can implement. And then those processes handing over some of that, being the mechanism for handing over some of the planning. So for example, in South Australia, in the wake of the Nyland Royal Commission, the early intervention research directorate has been established.

Now, that’s not purely focused on research. But there’s a number of things that we are hopeful will be mechanisms for change there. One, it’s a response that is sitting within the Department of Premier and Cabinet, so it has that ability to pull departments together. Typically when you see reforms sitting within child protection departments, they don’t have the heft to require health or Treasury or education to come to the party. So sometimes you need that senior player who can require the departments to work together.

The other thing that we’re doing within that is we’re doing what you would expect a research directorate to do: we are trying to better understand the extent and the nature of the problem, identify those critical intervention points. But we’re also trying to assist the government to come up with some mechanisms for planning responses.

So we are going through a process where, for every program within South Australia that has government funding, be it provided by the health department, the education


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department, a non-government provider, every single one in South Australia that has got a primary or a secondary objective around the prevention of abuse and neglect or trying to prevent re-abuse for those children who are in the front-end of the statutory system, we are undertaking a process of evaluation and needs-mapping with them.

So we’re going through some basic procedures for every single one where we’re identifying their target groups, their outcomes, the activities they’re undertaking and having a basic look at their staffing, qualifications and staffing levels. And then we’re matching that to the international evidence base to at least do that first step to say, “Is this at least not contra-indicated by evidence? Is this showing that it’s not going to do” – we want to be sure that we’ve got nothing that’s going to be harmful that we’ve funded in the first instance.

We also want to know if we are getting a good bang for our buck. So if we have got interventions that they’re not harmful but they’ve never been proven to be effective with a problem that is this level of complexity. So already from that, we’re starting to see a service system where there’s a real focus on service coordination and assessment and we’re not seeing the same level of investment around intervention. So we’re starting to think about what’s the balance.

The other thing we’re doing as part of this systemic approach and staged approach is to look at community profiling. So we are saying, “What are the needs? What are the risks? What are the services within community areas?” And then we will be mapping and saying “Well, if these are the needs, what are the services that we have got on the ground? Are they matched to that need?” And eventually trying to get to that process of then a model that is tied to around – planning tied around the needs of the community, and some of that whole-system looking. So you don’t end up with health and education and child protection all funding a service coordinator and all relying on referrals to domestic violence and alcohol and other drug services, which may not have capacity.

COMMISSIONER GOODA: Can I – have you thought about – like, there’s always a political perspective with this. There’s already people saying we interfere too much in families already. This is a major step forward into that area. Have you thought about the political implications? Like, how do you change this whole attitude? When you first started talking about the hidden area of child abuse my mind actually went straight to family violence, domestic violence, how it was hidden and we started these campaigns and we’re still nowhere near where we should be with that. Have you thought about that? Like, there’s a significant change in direction.

PROF BROMFIELD: One thing I think we probably got right is actually the definition of a child in need of protection. I think the one thing I can point to that looks good to me is how we’ve defined a child in need of protection and the threshold. So I think the one thing that we have in our favour, the lever we have got, is the law. We have some good law there. We’re just – given the scope of the problem, our system is not fit to respond to that problem as it’s defined.


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COMMISSIONER GOODA: Do you think – you mentioned the Ministry of Children up here. Do you think that’s got potential to pull a whole lot of those areas together, education, health?

PROF ARNEY: Absolutely. I think if we can galvanise the – I think a lot of difficulty we have in child protection – and we have reflected on this often since the Nyland inquiry about why this insight hasn’t been had before. We have had the adult prevalence studies for some time. You know, why we haven’t extrapolated that to children living currently – I think everyone assumed that the problem was getting better. I think that’s – we have hoped that this generation is having a much better experience of childhood.

As we’ve reflected on why we have found it so difficult to get the reform that has been needed in child protection, I think there has been two key areas. One is the ability to cognitively understand that the rate of child abuse and neglect might be in the order of one in four is a very difficult figure for people to comprehend. Like, it’s an incredibly high figure. It’s doubled the rate of child asthma. It’s about 10 times the rate of juvenile diabetes. We are talking about something that is very high prevalence.

In talking to colleagues, people, I think, still keep assuming that it’s the needle in the haystack phenomenon. So that takes some time to percolate, I think, that notion that the problem could be this big. The second thing, I think, is getting past the notion that a society – as you said, Commissioner Gooda, that a society hasn’t responded to something of this magnitude. That we’re actively, in some jurisdictions, closing files on children that we know need support is very hard to comprehend, I think, for the layperson, for politicians. And often they’re kept protected, I think, from some of that information.

So I think we have to accept, one, that the figure is this large, and if we’re wrong, then, okay, at least we would have put more resources into intervening early. But if the figure is this large and that we have had a system that has systematically not responded to need for many, many years, I think that that should galvanise action. And I think a Ministry for Children – I think that has to be recognised in the activities that any Ministry for Children undertakes, that the problem is this large.

To still not think it’s a residual problem, to still not think 3 per cent of children are affected and we’re reporting one in four: this has to be seen as a priority of focus; that the figure is likely to be this large and that means we need to be able to mobilise those other systems to do something about it, because a child protection system, no matter how many workers are employed in it would never, ever be able to respond. And as I said, it’s a response that happens after the fact. It’s not a preventive response.

COMMISSIONER WHITE: And, Professor Arney, has your research suggested that the one in four figure might, in fact, be across the socio-economic groups, because while we focus on poverty as the generator of much of the child protection


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needs, I think we’ve all heard anecdotally from affluent homes who suffer acutely from neglect so that no one is immune from this figure. We can’t suggest that it’s a postcode phenomenon.

PROF ARNEY: Absolutely. I think it’s key to understand that there are forms of abuse and neglect that cross the spectrum, the socio-economic spectrum, and certainly child sexual abuse and exposure to family violence fall into those categories. Child neglect is seen more often in families who are socio-economically disadvantaged but that does not mean that it’s confined to that group.

COMMISSIONER WHITE: And there’s a wide definition of neglect in any event, isn’t there?


PROF BROMFIELD: So with neglect, two things. In affluent families, you may be able to buy in care which masks at least the physical neglect of children and emotional neglect is very, very difficult, if it is occurring by itself, to substantiate. It’s very difficult to prove an absence of love that hits a threshold that requires a state to forcibly intervene. So some of those aspects of neglect can be masked, or care can be brought in, in families who have got sufficient wealth.

The other thing, though, in terms of the high prevalence of neglect in families from – families of low socio-economic background is we do need to be careful that we are not confusing a correlation and a cause. So is poverty causing a parent to not provide adequate care for their child. Or is poverty something that is occurring alongside child neglect as a consequence of some other family dysfunction; perhaps, for example, a substance addiction, which may be eroding all the family income and leading to inadequate care of the child.

We tend to have better indicators about household income and postcode economic advantage or disadvantage than we do about domestic violence and substance addiction, and parental intellectual or learning disability, housing instability and homelessness within family units. We don’t often – you know , even when we have got data about those problems, we typically don’t ask, “And are you a parent?” So we don’t have the incidence within families.

So we do have to be careful that we are likely to see a link between poverty and neglect but not leap to the conclusion that poverty causes a parent to neglect their child. You’ve always got to look at the counterfactual and say, “Are most parents living in poverty neglecting their children?” in order to determine whether it’s a causal factor.

MR DIGHTON: Professor Arney, based on everything that has been discussed here today and also that which is contained in your précis, it remains your view that the theoretical model proposed in Growing Them Strong Together remains sound but a lot of the moving parents around it have changed. The – sorry, you nodded then?


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PROF ARNEY: Yes.

MR DIGHTON: The Growing Strong Together Report focused on a proposed response at least, that the model would be a blend of responsive regulation, a public health model, and ecological developmental model. Can you just break that down and suggest how that can still apply today.

PROF ARNEY: Sure. So perhaps if I describe those three types of model and then we can talk about how they come together to form the theoretical model that underpin Growing Them Strong Together. So an ecological model situates the child at the centre of their world and their experience. And certainly in child protection the child should absolutely be the focus of the work.

Then you go to those most important of relationships and most proximal of relationships to children which includes family and community. And then you go to the broader service system and the societal systems that surround children. The ecological model says all of these systems interact to influence child development and child wellbeing. If you overlay a developmental approach on top of that, it says as children’s development progresses, there will be different systems that are of importance there. So, obviously, as babies and in pregnancy, health systems are very important, and, as children age, then obviously educational systems increase in their importance.

So there’s – as children develop both the systems that interact on them but also their needs change over time. The public health model suggests that the things that you need to do in order to provide an appropriate response to the prevention of child abuse and neglect and the response is to understand the extent to which child abuse is happening, to identify the risk and protective factors, to identify strategies that can appropriately respond to those and would be most likely to be effective to implement them well and to evaluate them.

And the public health approach says there are things we can do at whole of population level to support that and there are things that we can do at more targeted groups of families based on risk and protective factors. And then, finally, the component that is not always included in these models is the theoretical model of responsive regulation, and that comes from a legal context which suggests that there are families who will self-regulate. They will be able to identify the needs that they have and seek supports as they need them and will basically be absolutely fine.

There will be some families who may need some support to do that, to either identify their needs or seek support or they may not have actually identified a need and once it’s pointed out to them, go, “I can receive support for that.” We call that supported regulation. And then the third group of families may be unwilling to seek support or make the changes within their family that might be needed and that’s where you would have coercive regulation.


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So that’s the discussion that we were having before about the role of the Sstate in families. So we have combined those elements into a single model which we call the integrated framework. I don’t think that was a particularly astounding name to call something but the integrated framework.

COMMISSIONER WHITE: There are an enormous number of frameworks.

COMMISSIONER GOODA: ..... workshop.

PROF ARNEY: No, exactly. We will trademark that one. And we said that there will be families over the course of the child’s life who will be able to meet their children’s needs and with the services and supports that are available, and we assumed that that would be quite a large proportion. That will be the largest proportion of societies. Most families will be able to utilise universal services and websites if they need them, and get to clinics, etcetera, and then there will be a smaller group of families that will have some kind of vulnerability but will probably respond to help if it’s provided and then progressively there will be smaller groups of families as we proceed through families that might need that level of coercion that Leah was talking about before, that level of referral that is required until we get to a point where there are families who cannot have their children living with them. We still believe that that is the case; that identifying those different groups of families and developing a service system around both the level of their need and the level of responsive regulation that they may need is absolutely important. The other aspect of responsive regulation is that it stipulates that you try the least intrusive methods first and you only progress up to more coercive methods if that’s required. As I mentioned before, the child protection system often starts at the most coercive method and tries to find less coercive and voluntary services as you go. But certainly that theory base, we believe, still supports how a system could be constructed. What we are not aware of is actually the proportion of families that might fit into those different categories. We had assumed what we would find but the one in four statistic actually makes us significantly rethink.

MR DIGHTON: Following from that, Professor Bromfield, and perhaps the crux of the current positioned is mentioned in your – in the précis paragraph 5 sub (b), and that is that the state of the systems early intervention statutory response have to sit side-by-side, they are not an either or proposition?

PROF BROMFIELD: Correct. We would like to get to a point in time through sound interventions where we have a population base that looks like the pyramid that we put in ..... together, but, at present, looking at the data before us, we think there’s probably some bulging out of the pyramid and that’s because of that escalation that we built into our system. So at least in the short-term, we are going to have to hold both. So if you have got – you can never, ever abandon the tertiary end, you know, if you’ve got children who are being sexually victimised, if you’ve got children who are being beaten, if you’ve got children who are experiencing chronic neglect, we can never ever countenance a system where we say we have got to abandon them because we’re spending our time on early intervention. We would never do that with


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any other health issue. But we can’t afford to continue to grow this problem the way we have. We can’t afford to continue to build in escalation. So I appreciate that me standing here as a – or sitting here as a child protection professor, of course I’m going to say we have to hold both. But that is not just because I think this is an incredibly important issue. It’s because, as a community, with prevalence that high we can’t afford for this problem to keep getting bigger. So we have to invest in both protecting those children who we have allowed to drift through the system, who are in great need today, and investing in early intervention so that we can protect and reduce that growth in the system for the future generations.

MR DIGHTON: We have covered this in part, but if we accept that sitting side-by-side and handling both, what are the key points of interaction or intersection, in practical terms, that are particularly relevant here; where should some of the focus be?

PROF BROMFIELD: So we would suggest that we take the World Health Organisation’s approach to child abuse and neglect, which outlines, essentially, a public health approach. The child protection system, as it’s currently constructed, we have to genuinely assess whether that is the right fit for the Northern Territory. I think we have to start assuming that if the problem is of this magnitude, we have to assume that the system is not going to get to all of those children and so we have to start looking at all of those other systems. If we have got a system where we’re saying there’s no way it could do it, then continuing to add things to that system, to bring in more workers to that system is not going to change things over time. So we do have to start taking that community planning approach. We do have to start looking at whether, what we’re currently investing in, is effective, is it matched to the problem, is it a good bang for our buck, are we – have we got the right mix of services? So planning is essential. The Northern Territory has actually quite a large budget that it spends on children. So starting to look at whether that money is being spent as effectively as it could is really an essential part of the steps forward. We need to still look at the role of coercion, but, you know, that may look different in the future. So at the moment, we’ve got a department that’s trying to do social work and policing and absolutely can’t do it for the magnitude of the problem that it’s facing. So looking creatively or differently at some of those elements. Also, some of those voluntary services, we may need to be making an assessment on whether families are going to engage with those services. If that’s the intervention that we think is desperately needed – so if it’s a drug rehabilitation program that we think is desperately needed to enable mum to overcome her problem and provide adequate care for her kids, then we might have to require her to attend the program or require her to report on treatment. So we do have look at - - -

COMMISSIONER WHITE: Can we just take that as an example, because we have heard so many stories from young men and women who have been taken from their families and were shattered by that removal. Now, to take your example, if the mother needed that treatment and, of course, it has to be residential treatment usually to be effective, could you not put a carer into the home to assist if there was no kin or family available to come in so the children weren’t removed from their home,


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because they haven’t done anything wrong but someone comes in and cares for them in the home and they’re supported to do so. Would that be an outcome that might work better?

PROF BROMFIELD: I would be open to all sorts of creative solutions. The only kind of, as – I suppose what we – our approach to innovative service is that you start with the need. You then work around to design what solutions might come up, you do a basic check to make sure someone hasn’t tried it previously and it didn’t fail, and then, if it’s something new that hasn’t been tried before, you have to do that ethical thing of measuring and evaluating to see if it works. If it works you keep it and if it doesn’t, you stop it. But absolutely we need to be looking at innovative solutions.

COMMISSIONER WHITE: I interrupted you, I’m sorry.

PROF BROMFIELD: It’s alright. I probably wasn’t - - -

PROF ARNEY: If I may just make a point: one of the things that I’ve certainly experienced in the Territory in my research and work up here and, to an extent, in other jurisdictions, is that we have often seen services and supports mobilised through certain points of the child protection system, as we were describing before, if the matter is screened in but is it screened in at a tier 3, you might qualify for a service. If the matter proceeds through the system, so it is investigated, the matter is substantiated for neglect, you might then be offered and intensive family support service, for example. Because of the difficulties that we’ve identified beforehand about the kind of blockages in the system and the lack of capacity in the system to respond, it often means that those services and supports, which could have been incredibly beneficial much earlier in the life of the family and the child and the problem are not utilised. So in any sense of building an early intervention and a statutory system sitting alongside of each other, I think it’s important that we don’t make supports and services only available to families based on the status of their case in the child protection system, otherwise we run an incredible risk of building that escalation in once again.

MR DIGHTON: On the final topic, Professor Arney, sharpening into the immediate term everything that we’ve been talking about to now, establishing or accepting that, as you’ve said, there’s a proportion of children who reached the statutory threshold of harm that have been under estimated, that there’s a reactive system, ill suited to cope with the reality of those numbers, and a data deficit where we are not entirely sure of the magnitude of the problem, although we might not know it’s there, policy makers looking at this situation now, what are the priority first step measures that you think can be started on, notwithstanding the ongoing work that might have to occur.

PROF ARNEY: Absolutely. We would advocate that there needs to be political commitment that there is going to be a generational plan for change. So that any baby born today will not experience what babies born previously have had to


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experience in terms of their exposure to risk, but also the churning through child protection systems. And an initial focus can be taken on intervening antenatally, intervening in pregnancy and with infants that can mean that those children that otherwise might hit the system, as we have seen in South Australia, four, five, 10, 14 times not necessarily garnering a response, will actually have a meaningful service and supports delivered to them. There is the infrastructure in the Territory to undertake some of that. We have the family nurse partnership program that’s being rolled out that can be designed to better respond to those children and their families. The other thing, I think, that needs to happen which we have identified is those children who have been multiply reported, that we know about but just don’t know about them today because someone hasn’t picked up the phone and the incident hasn’t reached that critical point is there needs to be a response for those children and it can’t just be a child protection response. We need to mobilise a multi agency and involving community and family members in responding for those children. We need to set up those systems that enable us to better understand the problem before we can take solutions to scale. There is capacity in the Northern Territory, we understand the research that has been undertaken by Professor Sven Silburn and colleagues at Menzies School of Health Research, the Territory is just beginning to interrogate these questions and, I think, to get that research up to scale quickly is incredibly important, to set up the structures that mean that we will monitor any outcomes of this Royal Commission that we will implement the recommendations made by this Royal Commission and we will be held accountable to the recommendations made by this Royal Commission is incredibly important.

MR DIGHTON: To both of you, are there reasonably easily identifiable cohorts of at-risk or vulnerable children for whom at least of the structures in place, that work can start on addressing their needs, at least?

PROF BROMFIELD: So building on from what Fiona has just said, I think that Professor Silburn’s data will really provide guidance here. In South Australia we have used Professor Lynch’s dataset, as well as some of our own research and we’ve identified three priority groups. And so what we’ve done there is instead of looking at who came in this month, we’ve looked longitudinally, we identified anti-natal reports and children under two as one priority group. We identified children with 10 or more notifications as another priority group that we should be targeting right now. In the South Australian context, we also identified Aboriginal children as a group where we needed to start investigating and identifying different responses to intervene early and prevent problems escalating. The other thing is looking at the Territory data is that neglect is clearly a very big problem here, as is exposure to family violence. So we infer that from the substantiation rates for emotional abuse. Across Australia we make an assumption that the majority of substantiations for emotional abuse are actually exposure to family violence. So that gives you five priority issues to start working on solutions for straightaway, in terms of building a new way of working. So it’s not a matter of necessarily waiting, you know, two, three years for data to come in before we start building solutions.


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MR DIGHTON: And a question to both of you, building, I think, on parts of both of your answers: what parts – or do you have a view as to the capacity or method by which Aboriginal controlled community organisations can play a role in that process?

PROF ARNEY: So I firmly believe that Aboriginal organisations and individuals have a role at every level of reform and service delivery that’s going to be required. That’s at the policy setting level and my experience has been with the early child development expert panel that has been convened, which has Donna Ah Chee and ..... as the co-chairs of that process. That there are a number of Aboriginal representatives and representatives of Aboriginal organisations sitting at that process, developing strategy; that it also needs to be at the community level, that community leadership, that community governance of any approach that is taken and also informing the community about options so that evidence-based decisions and informed decisions can be made. Also at the organisational level, ensuring that there is community controlled participation in service design, service delivery, needs identification and also that there is clear structures for governance which certainly community controlled organisations provide that ability to make sure that there are – there is the voice of the community in identifying solutions, and then at the level of program design and also at the level of practice. And there has been work undertaken by Menzies School of Health research that really looked at bicultural practice models that could operate at that various levels, and I would commend that to the Commission as an approach that could be quite useful and successful.

MR DIGHTON: Thank you. Anything that you wanted to add, Professor Bromfield?

PROF BROMFIELD: No.

MR DIGHTON: Thank you. Those were my questions, Commissioners. There is one party with leave for cross-examination.

DR DWYER: ..... matter has been addressed so I don’t need to trouble them.

COMMISSIONER WHITE: Thank you.

MR DIGHTON: I don’t believe .....

COMMISSIONER WHITE: Well, that is thorough. Which says something, think, about the quality of your précis for us, too. It really addressed all those pretty cutting-edge issues, and the fact that you have identified that it is a system that perhaps needs as big a revolution now as it did in the 1960s, when that great vault farce from how things were looked at previously, perhaps we’re on the cusp of a completely new approach, and we’re very grateful for your intellectual leadership in this field and identifying that that time has now come. So we’re very grateful to you for your generosity and sharing those ideas with us.


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COMMISSIONER GOODA: Same from me.

PROF BROMFIELD: Thank you.

COMMISSIONER GOODA: Commissioner White and I are both aware of the work that you do and as we know, when we visited you in Adelaide, are really appreciative of the effort you have gone to assist the Commission in our work.

COMMISSIONER WHITE: And we hope we won’t disappoint you.

PROF BROMFIELD: Thank you.

PROF ARNEY: We are delighted to be working to – we have got to figure this out together. We are solving a new problem. And I think we’re delighted to be working together with the Commission to find those solutions.

COMMISSIONER WHITE: Thank you.

COMMISSIONER GOODA: Thank you.

PROF BROMFIELD: That gives us great hope ..... might be time for another big change. Thank you.

COMMISSIONER WHITE: Well, if there are any further thoughts that occur to you, of course you know our door is always open and we’re very pleased to receive them. So thanks so much for coming up from Adelaide to speak with us in person. It makes such a difference. Thank you very much.

COMMISSIONER GOODA: Thank you.

<THE WITNESSES WITHDREW [4.03 pm]

COMMISSIONER WHITE: We now have a personal story, I think.

MR DIGHTON: We do, Commissioners. We are now going to hear our second personal story for today. DY is a grandfather and a kinship carer. In his personal story, DY tells us about his granddaughter, aged 15, and his grandson, aged nine9. They are the children of DYs daughter. He talks about the removal into care of his granddaughter and his grandson. DY tells us that these removals occurred even though he and his wife had long experience in caring for children in the community and offered to take the children themselves. He expresses his concerns for his grandchildren, their future, and describes the impact as a result of their removal from culture, family and kin. And, if it please the Commissioners, please play DY’s story.


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RECORDING PLAYED

MR DIGHTON: Commissioners, I think, unless there’s anything further, that’s all the business for today.

COMMISSIONER WHITE: Do you notice it’s only quarter past 4, Mr Dighton?

MR DIGHTON: Yes.

COMMISSIONER WHITE: Surely you have got something else for us to do?

MR DIGHTON: It is an unnatural feeling, but I think we start - - -

COMMISSIONER WHITE: Very unnatural.

MR DIGHTON: But we are commencing at 9 am tomorrow, I understand.

COMMISSIONER WHITE: I believe so. Yes. Are we in open court tomorrow? I think we have got Mr Schiraldi from Harvard - - -

MR DIGHTON: Yes.

COMMISSIONER WHITE: - - - speaking with us tomorrow at 9. That will be by video link, of course. Alright. Thank you. We will adjourn until 9 o’clock tomorrow.

MR DIGHTON: Thank you.

COMMISSIONER WHITE: Thanks everyone for your assistance today.

MATTER ADJOURNED at 4.17 pm UNTIL TUESDAY, 27 JUNE 2017


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Index of Witness Events

NATE BALIS, CALLED P-4971EXAMINATION-IN-CHIEF BY MR GOODWIN P-4971

THE WITNESS WITHDREW P-4988

ANDREW TONGUE, SWORN P-4989EXAMINATION-IN-CHIEF BY MR CALLAGHAN P-4989CROSS-EXAMINATION BY MR LAWRENCE P-5011CROSS-EXAMINATION BY DR DWYER P-5015CROSS-EXAMINATION BY MS GRAHAM P-5021CROSS-EXAMINATION BY MS BARRETT P-5022


ROSLYN BAXTER, AFFIRMED P-5024EXAMINATION-IN-CHIEF BY MR CALLAGHAN P-5024CROSS-EXAMINATION BY DR DWYER P-5033CROSS-EXAMINATION BY MS GRAHAM P-5037CROSS-EXAMINATION BY MR LAWRENCE P-5039


LEAH BROMFIELD, AFFIRMED P-5047FIONA ARNEY, AFFIRMED P-5047THE WITNESSES WITHDREW P-5071

Index of Exhibits and MFIs

EXHIBIT #576 BUNDLE CONTAINING PRECIS, CURRICULUM VITAE AND REFERENCES OF NATE BALIS

P-4971


P-4989


P-4990

EXHIBIT #580 EXCERPT OF APPENDIX 1 PRINT OUT P-4990

EXHIBIT #581 DOCUMENT DESCRIBED AS AUSTRALIAN GOVERNMENT REMOTE STAFF

P-5008

EXHIBIT #582 POSITION DESCRIPTIONS FOR GOVERNMENT ENGAGEMENT COORDINATORS

P-5008

EXHIBIT #583 POSITION DESCRIPTIONS OF INDIGENOUS ENGAGEMENT OFFICERS

P-5008


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EXHIBIT #525 STATEMENT OF ROSLYN BAXTER DATED 15/06/2017

P-5025


P-5043


P-5043


P-5043

EXHIBIT #589 APPENDIX A TO STATEMENT OF ROSLYN BAXTER DATED 15/06/2017

P-5043

EXHIBIT #590 APPENDIX B TO STATEMENT OF ROSLYN BAXTER DATED 15/06/2017

P-5044

EXHIBIT #591 APPENDIX C TO STATEMENT OF ROSLYN BAXTER DATED 15/06/2017

P-5044

EXHIBIT #592 APPENDIX D TO STATEMENT OF ROSLYN BAXTER DATED 15/06/2017

P-5044

EXHIBIT #593 AUSTRALIAN NATIONAL AUDIT OFFICE PERFORMANCE AUDIT – INDIGENOUS ADVANCEMENT STRATEGY

P-5044

EXHIBIT #594 STRONGER FUTURES BOOKLET P-5044

EXHIBIT #595 NATIONAL PARTNERSHIP ON NORTHERN TERRITORY REMOTE ABORIGINAL INVESTMENTS

P-5045

EXHIBIT #596 COMMUNITY SAFETY IMPLEMENTATION PLAN TO THE NATIONAL PARTNERSHIP ON NORTHERN TERRITORY REMOTE ABORIGINAL INVESTMENT

P-5045

EXHIBIT #597 IAS GRANT GUIDELINES P-5045

EXHIBIT #598 EVALUATION PLAN 2016 INDIGENOUS AFFAIRS GROUP PM&C MAY 2016

P-5045

EXHIBIT #599 SNAICC ABORIGINAL AND TORRES STRAIT ISLANDER CHILD PLACEMENT PRINCIPLE AIMS AND CORE ELEMENTS DOCUMENT

P-5045

EXHIBIT #600 PRECIS OF EVIDENCE PREPARED BY PROFESSORS BROMFIELD AND ARNEY WITH TWO ANNEXURES DATED 23/06/2017

P-5047


TranscriptCreator Web view.ROYAL COMMISSION 26.6.17P-5020A. TONGUE XXN ©Commonwealth of...

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Transcript of TranscriptCreator Web view.ROYAL COMMISSION 26.6.17P-5020A. TONGUE XXN ©Commonwealth of...