Rioting detainees locked out prison officers and had sex in the pool of the now notorious Don Dale juvenile detention centre: Was that something that came as a surprise to him, given all the other things that had gone wrong?
That was the question Counsel Assisting the Royal Commission into Juvenile Detention, Tony McAvoy SC, put to former Minister for Corrections Gerry McCarthy (pictured being sworn in) at the commission’s hearing on Friday.
The riot occurred on Christmas Day and Boxing Day 2011.
According to a departmental report given to the commission “sexual activity may have taken place. Three female and two male detainees were identified as being involved in the alleged incident in the pool.
“On the morning of 26 December 2011 the primary health care provider was contacted regarding administering the ‘day after pill’.
“The female detainees and their parents consented to the pill being administered. All detainees allegedly involved in sexual activity consented to the STI tests.
“One of the female detainees was under the care of Department of Children’s and Families and approval was sought to administer the medial intervention required.
“One of the male detainees allegedly involved in the alleged sexual activity is 17 years of age and will be reported to the Police for investigation as the female detainees allegedly involved were under the age of 16 years,” says the departmental report.
Mr McAvoy: “Minister, following that event you were asked to sign off on orders to place children in adult facilities; is that correct?”
Mr McCarthy: “Yes.”
Mr McAvoy: “That’s a fairly extreme measure in terms of the management of juvenile detainees, isn’t it?”
Mr McCarthy replied it was an interim measure, and the alternative, a “very inappropriate measure,” would have been placing them in a watch house.
The events in the pool were among a string of failures and problems in the juvenile detention system during the 2008 to 2012 Labor government, put before the commission during its hearings in Alice Springs last week.
Gerry McCarthy a long-time Member for Barkly and a front bencher in the present government, began his term as Correctional Services Minister – by his own admission – with little more knowledge than the numerous casuals employed by the system.
As he told the inquiry repeatedly when he gave evidence last week, he was relying on his “life experience … basic parameters of common sense and good manners”.
These, as the commission heard, did not serve him well in his quest for purpose-built youth detention facilities in Darwin and Alice Springs, rejected by his Cabinet while it geared up to spend half a billion dollars on the sprawling Holtze prison (at left) for ultimately 1000 adult inmates on the outskirts of Darwin.
The commission could not even unearth a document recording the deletion from the Holtze project of a youth facility for 75 inmates, favoured by Mr McCarthy.
Pressed repeatedly by Mr McAvoy, Mr McCarthy told the commission that there isn’t such a document because the youth prison is still on the agenda – to the present day it seems, in the reborn Labor government.
Before getting to the subject of youth detention, Mr McCarthy pointed to his achievements as teacher, first recruited by the Commonwealth Teaching Service in 1980, having a hand in founding the Tennant Creek Highschool and starting four Indigenous bush schools.
“There was no infrastructure,” said Mr McCarthy.
“Myself and my family literally camped out to establish those schools.
“The pastoral property schools are by far my favourites. It was a very structured time. I am now talking 38 years ago … a remote Aboriginal community that was living and working on a cattle station.
“It was a small family-owned property … on any one day all the children were at school … in caravans. It was very primitive infrastructure. They were known as ‘silver bullets’.
“The children were at school. The women did lots of volunteering work around the station and around the store with great relationships with the family.
“The men worked in the stock camp. And it was a very, very memorable time in my life.
“We took kids through to year 6. Traditionally we then supported them with family approval into boarding schools. The majority went south to Alice Springs to Yirara College. They were good days because we had good attendance.
“We had committed teachers. There was far more stability in the teaching service. Now we struggle with extremely high turnover of teachers.”
Mr McCarthy said he had also worked at Burrow School of Suffolk in the UK in the 1998/99 school year for nine months with children “excluded from the mainstream”.
He was elected as the Member for Barkly 2008 and appointed as Minister for Correctional Services on February 9, 2009. It was a junior appointment.
Asked by Mr McAvoy whether he had any specific youth detention experience before he was appointed as Minister, Mr McCarthy replied: “I have never been incarcerated. But – yes.
“I had experience as a teenager, I had experience as a young adult and I had experience in my early teaching career of peers that had been through the system. I had visited youth detention centres.”
Yet it was Mr McCarthy who, on the first day of his appointment as Minister, announced “a New Era of Corrections”.
He explained: “As an MLA for six months, appointed as a new Minister, within three days of that announcement I was actually setting up a ministerial office, I was trying to get across the briefs, including corrections, and so it was very much a steep learning curve for me as a new Minister.”
Mr McAvoy: “Had you been assisted to develop legislative analysis skills?”
Mr McCarthy: “No. The journey started on that day.”
He said he had been “tasked with an enormous responsibility but as a Minister that came to the job with the basic parameters of common-sense and good manners”.
Mr McCarthy made no secret of the Henderson Government’s refusal to commit funds to programs and purpose-built facilities for juveniles in both Darwin and Alice Springs, while at no time making a documented decision about excluding the small (75 beds) juvenile detention facility from the massive (ultimately 1000 beds) adult gaol in the Top End.
Mr McCarthy: “I do. But associated with that – and certainly reinforced in terms of my first tour – was the absolutely extreme position of the Darwin Correctional Centre in terms of its [being] beyond its capacity, beyond its economic viability, and in terms of rioting prison numbers it was an extreme situation. That was the priority of government by far.”
Mr McAvoy: “Were you also aware of any stories in relation to the condition existing within the youth detention facilities at that time?”
Mr McCarthy: “I had never visited the Don Dale Centre, however I knew lots of youth over the years that had been incarcerated there. And worked with them.”
Mr McAvoy asked Mc McCarthy about a brief from the chief executive officer dated May 26, 2009, “seeking endorsement of the Department of Justice views on a range of services and facilities that form part of the overall program replacing the Darwin Correctional Centre” including a description of Don Dale juvenile detention facility.
The brief dealt with issues at the Alice Springs juvenile holding centre (Aranda House), urging capital expenditure for both, and suggesting without that “it may not be possible to ensure secure and appropriate accommodation could be provided for all juveniles at Don Dale”.
Mr McCarthy said he recalled the documents and agreed that in the absence of a new centre, Don Dale would require “significant upgrades” due to the rising numbers of juvenile detainees, including the rising number of girls.
Mr McAvoy: “Then it’s also suggested that there needed to be an increase in educational programs?”
Mr McCarthy: “Yes.”
Mr McAvoy said an expert review committee advising the government suggested “to replace the Don Dale Juvenile Detention Centre and Alice Springs juvenile holding centre with two new facilities, a 75 bed facility, a new purpose-designed facility on the prison site in Darwin, and a 25 bed new purpose facility in the Alice Springs Correctional Centre.”
Mr McCarthy said he endorsed that report.
However, no 75 bed facility was built in Darwin, Don Dale was replaced by the former Berrimah Prison, with some renovations, and in Alice Springs an existing facility was adapted for juveniles – in a highly inadequate manner, as the commission has heard.
“I didn’t get all my Cabinet submissions up. I did the best that I could at the time,” was a recurring theme of Mr McCarthy’s answers.
“I have spent more than half my life working towards [improving the life of young people]. So, Mr McAvoy, certainly it was the best that I had. Was it appropriate? No, it wasn’t appropriate. Could we have done better? Yes, we could have. Did I have ambition to do that? Absolutely. Did I achieve that? Not yet.”
Mr McCarthy said: “I was planning to come back to a seat at the Cabinet table in a new government in August 2012.” But Labor didn’t win that election.
“It [the proposal for a 75 bed youth facility] was continuing and it was my ambition and my personal drive and enthusiasm to deliver it.”
Mr McCarthy clearly put pressure on the government, and on Paul Henderson who was Chief Minister from 2007 to 2012, to build suitable juvenile detention facilities, but to no avail.
Mr McAvoy: “So you would agree, though, that in 2011 the youth detention facilities in Alice Springs and Darwin were run down?”
Mr McCarthy: “Yes.”
Mr McAvoy: “And inappropriate?”
Mr McCarthy: “Inappropriate for the rising numbers of juveniles and from a personal perspective the increasing complexities of the juveniles, detainees. Yes.”
Mr McAvoy: “And you attended on those facilities?”
Mr McCarthy: “Yes.”
Mr McAvoy: “And you saw the condition in which people were kept?”
Mr McCarthy: “Yes.”
Mr McAvoy: “Did you attend in the isolation cells at the Don Dale detention centre?”
Mr McCarthy: “Yes.”
Mr McAvoy: “The Behaviour Management Unit?”
Mr McCarthy: “Yes.”
Mr McAvoy: “And you saw young people detained in those cells?”
Mr McCarthy: “No. I never saw anybody.”
The bells had been ringing loud and clear on Mr McCarthy’s watch:-
• In June 2009 Trish van Djik, an official visitor, made the first of several complaints about conditions at Aranda House in Alice Springs.
• In March 2010 another official visitor, Nadine Williams, made a similar complaint.
• In April 2010 official visitor Winnifred Burgess complained about problems of girls’ accommodation at Don Dale and raised the issue again in August. “That was a very challenging issue,” commented Mr McCarthy. “It essentially led to Cabinet submissions for minor new works and infrastructure upgrades.”
• Mr McCarthy admitted he received several briefs about assaults on detainees by staff between April 2010 and April 2011.
• He had received briefs of a juvenile detainee assaulting two officers.
• In August 2011 the Central Australian Aboriginal Legal Aid Service raised an issue about the frequent and lengthy use of seclusion [isolation] within the Alice Springs Juvenile Detention Centre – which did not have a procedures manual. CAALAS also complained about security ratings and privileges, and numerous concerns in respect of staffing and limitations on calls to their lawyers.
• Mr McCarthy had “flash briefs” about the Dylan Voller incidents of Four Corners fame, in 2010 and 2011 but he admitted to Ms C. Goodhand, representing Mr Voller, that he had not asked to be shown the CCTV footage. “I have no answer for that. I didn’t request it and I can understand your line of questioning and I am at fault,” said Mr McCarthy.
Ms Goodhand’s cross-examination further revealed that Mr McCarthy …
• had to be pressed to accept that isolation of a detainee is a “serious matter”;
• had not been informed about children being denied water, as has been alleged;
• said forceful removal of underwear is a serious matter and he would expect to be informed by his staff;
• was unaware that a staff member had not turned up to an investigation by the Professional Standards Unit, yet that officer was given a further contract;
Mr McAvoy: “The prevalence of reports … should raise concerns with you as the Minister about the security and safety of those detention facilities. Did you have those concerns in 2010 and 2011?”
Mr McCarthy: “I had concerns and it was far greater than just facilities. It was about programs, it was about operations, it was about rising numbers of juvenile detainees and the high complexity of their needs.
“I was looking at a holistic perspective and as a Minister with the opportunity for guiding a strategic direction of government. I was totally focused on that. These operational procedures, of course, caused me great concern.”
Mr McAvoy: “Are they matters at which you took up with the CEO of the Department of Justice and the Commissioner in your weekly meetings?”
Mr McCarthy: “Yes.”
And later: “I had known about the Don Dale Centre and the education program there for many, many years. I have known teachers there. I challenged the system around the structure. Education had the budgets and the resources for the educational programs; I was a Minister in charge of the wellbeing and safety of the detainees and the infrastructure.
“I yearned for the resources to be able to change our education programs, particularly in relation to an industry focus. I did a lot of talking, Sir. I did a lot of lobbying. I did a lot of work.
“And as a junior Minister I was totally focused on trying to increase my position in the pecking order, my position within the executive government and have that opportunity to deliver what I believe will make a difference.
“I can remember the metrics around the enormous amount of casual positions that we needed to fill vacancies. It reflected a system that didn’t have good continuity and coherence.”
Mr McCarthy replied with a “yes” to Mr McAvoy’s final question: “Do you accept that as Minister you have to accept some responsibility for those failings?”