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Originally published on Sydney Criminal Lawyers written by Paul Gregoire

Australia: Judge declares Banksia Hill Kids Prison dehumanising, as class action mounts

As a 15-year-old boy came before the WA Children’s Court, it was heard that during his time in the state’s only child prison, Banksia Hill, he’d been kept in a tiny isolation cell with an observational wall for 79 of 98 days – 33 without a required 30-minute break – over the summer, during a heatwave.

“When you treat a damaged child like an animal, they will behave like one and if you want a monster this is how you do it,” said District Court Judge Hylton Quail on 10 February, as he sentenced the boy with compulsive brain damage to a 12 month community order, as it was safer than being inside.

Quail, the president of the WA Children’s Court, handed down the burglary-related sentence just a month after he permitted a 17-year-old youth to serve his 14-month term in Hakea adult prison, after he’d been subjected to multiple lockdowns during his time on remand at Banksia.

The WA District Court judge outlined that conditions in the child facility had worsened of late due to staff shortages during the pandemic, but a class action against Banksia Hill launched mid-last year suggests the prison has long been a centre of human rights abuses.

Indeed, Banksia Hill Detention Centre is Western Australia’s Don Dale, where kids as young as 10 – 74 percent of whom are First Nations – are separated from community supports to be “treated like animals” by the government-maintained system.

A rare admission

“Judge Quail has effectively called out Banksia Hill as an abysmal failure, that’s not fit for purpose, that degenerates children to their worst selves, that’s not rehabilitative or restorative, that’s a den of cruelties leaving children worse off,” said Social Justice Independent Gerry Georgatos.

“They leave Banksia Hill worse than when they go in and, therefore, pose a greater risk to themselves and society,” he told Sydney Criminal Lawyers.

And he ought to know, as coordinator of the National Suicide Prevention and Trauma Recovery Project (NSPTRP) he was called into the centre last September to help deescalate a riot, and he noted the number of kids being subjected to the Intensive Support Unit (ISU) isolation cells.

Georgatos further stressed that a figure like the Children’s Court president publicly calling out the state government on how it’s overseeing the running of the facility is a rare occurrence, especially as Banksia Hill has such close links to the institution he presides over.

“These are our most vulnerable children, many without parents, half of them, in fact, in the care of the state, and failed big time by both Child Protection and Corrective Services,” he added. “There’s negligible nurture in Banksia Hill but there’s heaps of the punitive.”

“Fishbowl” cells

Established in 1997, Banksia Hill Juvenile Detention Centre is situated in the southern Perth suburb of Canning Vale. And while Australian authorities prefer to use euphemisms when it comes to locking up kids, Banksia is basically a child prison used to detain 10 to 17 year old inmates.

Following a May 2017 riot involving seven child prisoners, the ISU was established as a means to provide problematic kids with a full support regime, but in reality they received less programs. And not all the children in ISU are stuck in the “fishbowl” cells, where they can be constantly observed.

“ISU is referred to by some of the guards and by the child prisoners as ‘the cage’”, Georgatos said. “Small cells, which some children can touch both walls if they spread their arms – this is how small these cells are. Dark on the inside, little light, and food with no utensils, eating with their hands.”

The SJI candidate explained that placing a child in the ISU is supposed to be court ordered, yet this requirement is not always being followed, and neither are conditions that require children must be allowed out of the small cells for allocated periods to exercise daily.

Suing over mistreatment

The Social Justice Independents and NSPTRP are launching a class action against the Banksia Hill facility and the WA state government. The case is being led by Levitt Robinson Solicitors, and it already entails 530 testimonies from past detainees outlining human rights abuses at the prison.

Georgatos recalls that close to a decade ago the current WA Labor government, when in opposition, slammed the child prison, warning it was “a powder-keg waiting to explode”, but since he took office five years ago, WA premier Mark McGowan actually oversaw the ISU establishment.

“We launched the class action because on top of the redress to the affected, we want to compel social reforms, a suite of humane alternatives, ensure nurture and a better shot at life for our most vulnerable children.”

The long-term suicide prevention advocate further set out that rather than sending young offenders to prison with the deprivation of liberty being the punishment, the authorities are sending these children to face degradation and harm in a facility with a dearth of any rehabilitation or restoration.

The greater reforms

Since the other two rulings, Georgatos advised, Judge Quail has sentenced a 16-year-old who was convicted on a serious arson offence to a 12-month community order, as he determined the youth would have more chance at rehabilitation on the outside than inside the “Banksia dungeons”.

Although, according to the SJI candidate, who’s running for the Senate in the coming election, Banksia reflects a broader problem with Australian youth detention, and he’s calling for all seventeen child prisons nationwide to be closed down.

Georgatos recommends a system where the focus is on supporting vulnerable youths in the community with substantial outreach supports and mentoring, and this system should be extended to ensure their parents and carers receive any assistance or counselling they may need.

“I’ve worked with thousands of vulnerable people and what I describe is what works best. Society needs to heed,” the social justice advocate said in conclusion.

“In 2019, the Australian Senate voted against raising the age of criminal responsibility from 10 to 14. The Senate is supposed to be the heart and soul of the nation.”

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Originally published on The West Australian written by Annabel Hennessy

Department of Communities boss Mike Rowe refused to answer questions on Saturday over a raid he is understood to have instigated on one of his employees. Pictured is Mike outside his home in Shenton Park. Credit: Justin Benson-Cooper/The West Australian

Caged, isolated, scared: Why Perth Department of Communities director general tells staff to avoid talking to media in wake of raid outrage

The director-general of the scandal-hit Department of Communities has warned staff not to talk to media and to keep “all information” confidential.

It comes amid outrage over a police raid that tried to find the source of leaks to The West Australian detailing allegations of racism in the department.

Mike Rowe sent an email to all staff on Monday defending the department’s police complaint in which he told staff to contact their managers if the media reached out to them.

“As public servants we have access to all sorts of information that is not otherwise in the public domain. All information obtained during the course of your employment, not just information relating to our children, families and partners, must be maintained with utmost security and care. It must be treated in a way that maintains confidentiality . . .information can only be released upon appropriate approval or authorisation,” he wrote.

“A reminder that should a member of the media contact you, you can only speak to them with the prior approval of corporate communications. If you are contacted, inform your line manage as soon as possible.”

On Saturday, The West revealed how police had stormed the home of an Aboriginal woman who works for the department. The raid was an attempt to find out how this newspaper obtained internal documents that highlighted issues of racism and dysfunction within Communities.

These documents include a report by psychologist Dr Tracy Westerman on racism in the department and a follow-up report by PWC Indigenous. Both have been made public following The West’s reporting.

Psychologist Dr Tracy Westerman. Credit: Iain Gillespie/The West Australian

This newspaper has also reported on a critical priorities document which revealed the department was failing to meet KPIs including those relating to child safety investigations.

In his email, Mr Rowe claimed thousands of documents had potentially been compromised and Communities had no choice but to act.

“Communities is not responsible for the carriage of police investigations. How information is obtained during investigations and in turn how it informs operational decisions are matters solely for the WA Police. Suggestions that somehow the Department of Communities ‘directed’ the police to investigate is simply inaccurate,” Mr Rowe said.

Mark McGowan and Simone McGurk have both attempted to distance themselves from a police raid. Credit: The West Australian

He claimed he took the findings of Dr Westerman’s report seriously and would “continue to drive change to improve our cultural competency”.

He said the department’s leadership team would be giving an all-staff broadcast to talk to them about the matter.

Mark McGowan and Simone McGurk have both attempted to distance themselves from a police raid.

On Tuesday, Police Commissioner Chris Dawson said 10 officers had participated in the raid, as opposed to the 11 officers The West was told were present.

Asked what crime was being investigated, Mr Dawson would not say.

“I was advised of some possible criminal matters. It is still an open investigation, we are getting advice for the Director of Public Prosecutions,” he told the ABC.

He said police did not have choice to not investigate because something might be controversial or subject to scrutiny, but he also said he wanted to see the investigation concluded as soon as possible.

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Originally published on The West Australian

Liam Michael Bradley has avoided being locked up despite pleading guilty to the racially motivated attack. Credit: The West Australian

Liam Michael Bradley avoids jail over fire attack on woman and her daughter with swastika on his forehead

A man who tried to set fire to an Aboriginal woman and her daughter while sporting a back-to-front swastika on his forehead has avoided jail.

Liam Michael Bradley carried out the sickening racial attack, targeting the 40-year-old woman and her 15-year-old daughter as they walked near a Gosnells shopping centre in February last year.

Police said Bradley was wearing a distinctive scarf emblazoned with a swastika and other Nazi insignia and had used white paint to draw a swastika backwards on his forehead before he carried out the attack.

Police released this CCTV footage of Bradley after the attack. Credit: WA Police

He yelled vile racial abuse at the mother and daughter, including “you should all be killed”. Mr Bradley then used a spray can and a barbecue lighter to create a 30cm flame, aiming it at the pair, before walking away.

The mother received a minor burn to her arm.

Bradley was sentenced in Perth Magistrates Court on Tuesday after pleading guilty to aggravated conduct likely to racially harass and endangering the life, health or safety of a person.

He was handed an eight-month jail term, suspended for 12 months with conditions.

A previous hearing was told Bradley had schizophrenia and was at the “peak of his mental illness” when he acted.

At one point, Bradley argued the symbol on his forehead was a symbol of “Buddhism”.

Bradley was charged after a dramatic citizen’s arrest, with members of the public spotting him following a call for his whereabouts and detaining him until police arrived.

Police at the time described the attack as “cowardly” on two people who were “simply going about their daily business”.

“The potential for serious injury was definitely there, it was just fortunate enough he didn’t get close enough to do that,” Det-Sen. Sgt Bell, of the state security investigation group, said.

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Originally published on dailymail.co.uk written by Michael Ramsey for AAP

A group of 17 boys in Western Australia have been moved from youth detention to an adult prison with no timeline set for their return. Credit: Shutterstock/Nuttadol Kanperm

Banksia Hill Detention Centre rioters moved to Banksia Hill boys moved to adult jail in West Australia: Casuarina jail

Fears for 17 boys as young as 14 after they’re moved to an ADULT jail for destroying cells, assaulting guards and self-harming in juvenile detention

17 boys moved from juvenile detention to adult maximum security jail in WA
Claims boys destroyed juvenile centre, escaped from cells and assaulted staff
Relatives and advocates say boys treated inhumanely and at risk of self harm
Authorities say boys will return to centre when it is repaired but gave no timeline

A group of 17 boys in Western Australia have been moved from youth detention to an adult prison with no timeline set for their return.

WA’s justice department confirmed the boys, aged as young as 14 and mostly Indigenous, had been relocated on Wednesday from Perth‘s Banksia Hill detention centre to a standalone facility at the nearby Casuarina maximum-security prison.

Officials say the detainees have been destroying property, escaping from their cells, assaulting staff and harming themselves.

They have promised the boys will be kept away from adult prisoners in safe and secure units while repair works are completed at Banksia Hill.

But advocates have called for urgent reform amid a spate of self-harm incidents and after an independent inspector found some boys were spending as little as one hour per day outside of their cells in violation of their human rights.

The grandmother of one of the transferees, whose time at Banksia was described by a judge as one of ‘prolonged, systematic dehumanisation and deprivation’, has said she fears the 15-year-old will take his life at the adult prison.

Authorities claim the boys caused extensive damage to Banksia Hill detention centre (pictured) and were proving uncontrollable in its confines. Credit: Department of Justice

‘The number and severity of incidents over several months has seen an increase in lockdowns while staff respond to what has become a co-ordinated and unparalleled attack on the centre’s infrastructure.’

The department said detainees would be regularly assessed and return to Banksia Hill ‘as soon as practicable’.

It promised the boys would have access to education, secure recreation facilities and cultural, medical and psychological services.

About 600 past and present detainees have signed up for a planned class action led by Levitt Robinson Solicitors, alleging they suffered inhumane treatment, were excessively restrained and denied access to education.

Officials say the detainees have been destroying property, escaping from their cells, assaulting staff and harming themselves at Banksia Hill youth detention centre in Perth (pictured). Credit: Department of Justice

The case is before the Australian Human Rights Commission, the first procedural step involved in filing a class action in the Federal Court.

First Nations-led advocacy group Change the Record said it was appalled by the decision of the WA Labor government to relocate the detainees.

‘Children do not belong in prison, they do not belong in maximum security adult prisons, and they should not be punished for the failures of adults to keep them safe,’ national director Sophie Trevitt said.

For confidential 24-hour support in Australia call Lifeline on 13 11 14. People aged five to 25 can call Kids Helpline on 1800 55 1800.

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Originally published on The West Australian written by Emily Moulton

The view of the exercise area or “cage”. Credit: Supplied/Supplied

Children’s Court President Hylton Quail spares teen detention over shocking treatment at Banksia Hill

The President of the Children’s Court has taken the extraordinary step of sparing a teenager – who he described as “without a doubt the most difficult detainee at Banksia Hill” – further detention saying he was better off in the community than at the facility because of the “dehumanising” treatment.

During the 15-year-old’s sentencing, Hylton Quail revealed the teenager, who has been diagnosed with FASD, ADHD, PTSD and anxiety disorder, had spent 79 days out of 98 in the intensive supervision unit – otherwise known as solitary – living in what he described as a “fish bowl”.

More alarmingly, he said, was the discovery the boy spent 33 days completely locked up in his cell with no access to the 10m x 20m brick “cage” for exercise.

And on 34 other days he was allowed outside, he only received an average of an hour of exercise. He had no access to education and was only allowed roughly 10 minutes a day to call loved ones, when the phone was working.

“When you treat a damaged child like an animal, they will behave like one,” Judge Quail said of the teen’s behaviour. “And if you want to make a monster, then this is how you do it.”

Judge Quail revealed he had ordered a report into the teen’s management at the detention centre after learning he had spat, bit and threw urine over 19 youth custodial officers and self-harmed multiple times since his arrest in November last year.

He said he wanted to see if there was a link between his behaviour and his treatment at Banksia Hill.

And what he found, he said, was that the teen’s detention did not “meet the bare minimum standard the court expects” saying the child was subjected to “prolonged systematic dehumanisation and deprivation”.

The court was told the teen, who was taken into State care when he was eight, was sent back to detention after breaching a previous community order for breaking into a home in Ballajura and for robbing an 82-year-old man of $2000 with an adult co-accused in Morley in August.

A view of the “fish bowl” – the cell the boy stayed in. Credit: Supplied/Supplied

He had only been out of Banksia Hill for five days when he committed the first burglary.

While inside he attacked 18 male officers by either spitting, biting or throwing urine over them. He also pushed one female officer.

The court was told a psychologist who spoke with the teen after each self-harm attempt revealed his aggressive behaviour and suicide attempts were his way of trying to get his basic needs met and a desire for interaction with staff even if it was negative.

Judge Quail said the psychologist also pointed out the teen was always polite and reasonable when dealing with her but tended to lash out because of his lack of stimulation while confined.

He also highlighted there were no confinement orders relating to the teen saying Banksia Hill only had a management plan for him. If the teen had been placed on a confinement order he would have been given one hour of exercise every six hours every day.

“For 33 days, he did not have any exercise,” he said. “His conditions under the plan was worse than if a confinement order was made.”

The court also heard that over the Christmas period 25 detainees were locked up in the ISU and that staff shortages were so bad, rolling lockdowns were implemented meaning the children were not allowed out of their cells for numerous days.

In this teen’s case, he remained locked up from Christmas Eve until December 29.

Judge Quail said he had no criticism of the youth custodial officers or the superintendents who ran the facility saying he recognised the teen was very challenging and the wider issues were out of their control.

But he did lay blame squarely at the government saying it was their responsibility to adequately staff, train, resource and replace inadequate infrastructure at Banksia Hill.

The court also heard since the report was ordered, efforts had been made by the Department of Justice to improve the cells in the ISU, however “much more is required”. More prison officers were also expected to be brought in by the end of April.

In sentencing the teen, Judge Quail said ordinarily someone charged with multiple counts of assault a public officer and aggravated burglary would face a lengthy sentence.

But he said he took into account all the factors including the “dehumanisation” the teen was subjected to while locked up in the ISU.

“The rules are simple. Don’t break into people’s house and don’t hurt people,” he told the boy.

He sentenced him to 12 months detention but ordered he serve the time in the community saying he was of less risk outside Banksia Hill.

Megan Krakouer from the National Suicide Prevention and Trauma Recovery Project said she was “absolutely disgusted” by the teen’s treatment but not surprised saying it was not an isolated incident.

She also said she would go as far as saying the McGowan Government should be taken to the international criminal court in the Hague over its neglect of children in juvenile detention.

She said the government has known about the effect staff shortages were having on conditions at the centre explaining rolling lockdowns were having a detrimental effect on the kids inside.

“It is inhuman treatment,” she said.

Ms Krakouer called on Premier Mark McGowan to apologise to the children who are or have been detained at Banksia Hill and also called for Corrective Services Minister Bill Johnston to resign claiming he has known about the issues since at least October but has failed to address them adequately.

When asked about the judges comments, Mr McGowan acknowledged there were issues but said there were no “easy answers” adding the public also had to be protected.

“Banksia Hill actually has in place a whole lot of different rehabilitation programs for children that are there to try get kids back on the right track,” he said.

“But there are no easy answers here. Banksia Hill is not full. It is used as a last resort for the most serious of cases.”

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Originally published on The Australian written by Paige Taylor

Boy, 15, in solitary for 79 days

A 15-year-old boy was locked alone in a glass-walled observation cell for 79 days, including Christmas Day, and on just 34 of those days he was led from solitary confinement to a 20m-long cage where he was permitted to exercise for about one hour.

Perth Children’s Court president Hylton Quail on Thursday described the boy’s treatment at Banksia Hill Juvenile Detention Centre as illegal and a case of “prolonged, systemic dehumanisation and deprivation”.

On 33 of the 79 days in solitary confinement – including from December 24 to 28, 2021 – the boy did not get to leave his cell for any reason.

The boy pleaded guilty to assaulting guards 19 times while at Banksia Hill, including by spitting, biting, punching and kicking them.However, Judge Quail released him on Thursday to live with his grandmother.

“When you treat a damaged child like an animal they will behave like one, and if you want to make a monster this is how you do it,” JudgeQuail said.

Evidence at the boy’s sentencing hearing on Thursday included a guards’ logbook of the boy’s time in solitary confinement that is likely to bolster a class action against the McGowan government by current and former inmates of Banksia Hill. Most of the young people who have joined the court case are Indigenous, and so are most of the current detainees at the centre.

The logbook documents the consequences of chronic understaffing at the centre. It reveals that on many days there were not enough workers in the Intensive Supervision Unit where the boy was held. The unit was so understaffed that there was often no guards available to escort detainees to the phone room to call family or to the caged exercise yard.

“(The boy)’s experience of detention at Banksia Hill has been one of prolonged, systematic dehumanisation and deprivation. It has had no rehabilitative element or effect and has been unjustly punitive,” Judge Quail said. “The conditions of his detention have not met the bare minimum standards the law requires.”

The Aboriginal boy has been a ward of the state since he was seven. The court heard that when he lived with extended family in his earliest years, he was beaten and witnessed domestic violence against others.

He was exposed to substance abuse and what Judge Quail called “normalised criminal behaviour”.

He was 11 when he met his mother, who had substance abuse issues. The boy’s father died of alcoholism when he was eight. The boy was traumatised but “did pretty well” between the ages of nine and 12 when he lived in a group home run by the state government department now called Communities, Judge Quail said in his sentencing remarks.

However, when he was too old for his group home, he began to get into trouble. He has been in and out of Banksia Hill since 2019, mostly for burglaries. He has been diagnosed with foetal alcohol spectrum disorder, post-traumatic stress disorder, ADHD and a general anxiety disorder.

“He is one of the most damaged children to have appeared before me,” Judge Quail said.

The court heard the boy was arrested and sent to Banksia Hill on November 5, 2021, because he broke into a house and stole clothes and a carton of cigarettes. Though none of his crimes in the community involved physical attacks on people, he lashed out at guards with ferocity and sometimes more than once a day.

In a report to the court, a detention centre psychologist who had a rapport with the boy described him as polite, responsive and respectful at their meetings. However, he was also impulsive with a fear of abandonment and had “little regard for his life when highly stressed”.

The report said he responded to the isolation and boredom of repeated 24-hour lockdowns in his cell by “trying desperately for any interaction with staff, even a negative one”.

He threw cups of his urine at passing guards through a small window in his cell door. He repeatedly bashed his own head against the cell walls until guards restrained him. On one of the occasions when the boy was self-harming, riot squad officers from a nearby maximum-security adult prison arrived to prevent him from taking his life.

While confinement orders allow children to be held in special handling cells in Western Australia, the child must have 9.6 hours of exercise a day with fresh air and the company of youth custodial officers. The most time the boy ever got in the exercise “cage” was about three hours when he got into a standoff with guards.

Judge Quail said there was no confinement order for the boy that authorised his time in solitary confinement. The detention centre management held him there for 79 days on the strength of a document they wrote themselves called “a personal support plan”.

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Originally published on WA Today written by Aja Styles and Lauren Pilat

The forgotten children of lockdown in WA are experiencing conditions worse than those afforded murderers. CREDIT: MATT DAVIDSON

Caged, isolated, scared: Why Perth Children’s Court president would rather send kids to an adult prison

A West Australian children’s prison has been accused of human rights violations so dire that a Perth judge would rather send 17-year-olds to a maximum-security prison for adults.

There have been increasing reports before WA courts that Banksia Hill Detention Centre’s staffing shortages have forced 10 to 17-year-olds into repeated lockdowns for 22 hours a day.

One boy, 15, has spent 77 days out of 91 locked in Banksia Hill’s Intensive Supervision Unit (ISU), known as “the cage” because of its concrete walls, wire roofing and no natural sunlight.

WAtoday understands that his matter will be referred to the Aboriginal Legal Service of WA to investigate a civil lawsuit over human rights violations and breaches of the Young Offenders Act.

Last month, the President of the Children’s Court, Hylton Quail, granted the wish of a 17-year-old boy to serve his time at Hakea Prison, an adult remand facility in Perth’s southern suburbs, rather than return him to the state’s only juvenile jail.

Barrister Tony Hager told the court his client had been subjected to long and lengthy lockdowns at Banksia Hill since being taken into custody for a string of aggravated burglaries on December 17.

“They are disgraceful, with respect, in terms of the extent of the lockdowns that he has had to endure, and I accept it’s not just him, but all the others there at Banksia,” Mr Hager said.

“Most confronting is that we are entering this cage, to visit children as young as 10 years old.”
Dr James Fitzpatrick, FASD expert

Judge Quail agreed that the conditions at the already grim detention centre had worsened during the pandemic and sentenced the 17-year-old to 14 months jail at Hakea Prison, with parole in seven months.

“The conditions at Banksia at the moment are very bad and it is frankly a consideration in my deciding now to send you somewhere else because the older boys who I’ve sent to prison have done better in prison, frankly, than they have in Banksia because the lockdowns in Banksia are so long that there’s very little rehabilitative effect,” Judge Quail said in his January 18 sentencing.

“People are being deprived of programs. Recreation has been affected by the lockdowns as well.

“And that’s no criticism of the particular staff there nor the superintendent who’s trying very hard, but there’s simply inadequate resourcing, in my view, and inadequate staff at the moment.

“I know they’re pushing through additional staff to try and get them on board. This is making it very difficult for the staff that are there and the people who are suffering the most are the detainees.”

Corrective Services Minister Bill Johnston’s office has previously denied claims that Banksia Hill was understaffed. But he was unable to comment at the time of publication because he was on a regional tour of the state, with limited reception.

Over summer, with no fans in their cells, the children at Banksia Hill have been unable to sleep through Perth’s record-breaking 11 days of 40C heat.

The 15-year-old who spent the majority of his time in ISU, and who has clocked up more than a dozen assault charges and threatened suicide since being detained, was only afforded the chance to breathe fresh air for half the days he was in “the cage”.

Under the Young Offenders Act, the ISU was designed to be a punishment of last resort that required confinement orders, but WAtoday understands no such orders exist for the 15-year-old.

The boy’s exercise consisted of walking around a caged outdoor pen the size of a generous two-square handball court.

National Suicide Prevention and Trauma Recovery Project volunteers Gerry Georgatos and Megan Krakouer, who were called in to de-escalate a riot last September, saw “a lot of the kids in the ISU and there was at least eight cells”.

“Boys in ISU were lucky to get half an hour sunlight, so they’re in there the whole time,” Mr Georgatos said.

“The back of Banksia is worse than any other back of a prison of any adult prisons – it’s the smallest, the darkest and the most isolating. It’s cruel.”

A bright frontage at Banksia Hill Detention Centre in Western Australia disguises a dark ‘cruel’ cage at the rear.

Former detainee, 19-year-old Aurelius*, described “the cage” as a dark grey box so small that if he spread his arms out wide he could touch both walls.

“The first time I went in there, there were about five guards and four nurses, and they took me into a room, put me on my back and pulled my pants down and jabbed a needle in the back of me, and they all ran out of the room and locked the door,” he said.

“I never saw the sun when I was in the cage – only if I was allowed to make a phone call – and so I had no concept of time. All I could do was lay there and sleep.

“It’s three years later but I remember it – I wanted to get out of there and don’t want to ever go back.”

Aurelius*, who has fetal alcohol spectrum disorder, was 16 at the time and was never convicted of the petty stealing offences that landed him in the cage.

Many of the 100-odd detainees at Banksia Hill have some sort of mental or learning impairment, a third due to FASD, so reading materials prove useless unless taught and electronic devices often get smashed in anger or protest.

Cameras and other security infrastructures were a highly visible feature of the centre, making it “appear much like an adult prison”, while accommodation units were bare and unwelcoming, with graffiti widespread and the gardens unkempt, according to a 2020 prison inspection.

Accommodation quarters in Banksia Hill Detention Centre have changed since this picture was taken.

Dr James Fitzpatrick, a paediatrician, and expert in FASD and incarcerated youth in WA, said visiting Banksia Hill was “a haunting experience”.

“We enter through vast fences topped with barbed wire, through locked gates and under escort of security personnel,” he said.

“Most confronting is that we are entering this cage, to visit children as young as 10 years old.”

He said the state’s youth justice system had the highest rates of FASD in the world, with many still slipping through the cracks or not getting critical access to services.

Dr Fitzpatrick continues to be frustrated by the lack of improvement in outcomes, including the persistent high rates of suicide and justice system involvement, and the low rates of educational and employment attainment.

“While detained in Banksia Hill, there is an opportunity to provide therapeutic support and help them to set realistic, functional goals for their life back in the community,” he said.

As the state education system groans under the amassing weight of COVID-19, education programs in Banksia Hill Detention Centre has declined since the prison’s last inspection in 2020.

There have been increased assaults on prison officers, with up to 22 assaults a month early last year marking it as the state’s most violent correctional facility, while there were seven attempted suicides in October alone, according to a legal firm which has sought to bring a class action against Banksia Hill.

Chronic understaffing, assaults that required St John’s Ambulance and threats to safety have taken a toll on staff, leading to high staff turnover, 10 changes of leadership in 10 years and vacancies in the rosters due to stress leave.

The Inspector of Custodial Services last year reported 39 active workers’ compensation cases at Banksia Hill, which tended to climb due to “critical incidents”.

Community and Public Sector Union assistant secretary Melanie Bray last year warned the centre was at risk of a riot like in 2013 and 2017.

“Safe operational standards are 65 staff on-site, during the periods in question the centre was operating at around 40 on a day shift,” Ms Bray said in June.

“Chronic understaffing means more lockdowns, which makes detainees agitated and disruptive.”

One of those who rioted on the roof of Banksia Hill over getting locked up for hours, said one of the guards “bashed and flogged” one of the boys because “apparently he threw a rock at the guard but that wasn’t true”.

“When we got down the guards started slamming us down on the ground and my lip was split open and blood started coming out, the SRG sprayed pepper spray at us,” Luki* said.

“Every time we would get locked down we’d get locked down for about six hours.

“Guards would lock boys down for days and just leave them in their cells because the boys would play up because the guards would treat them wrong.”

From the age of 10, Luki* has been in Banksia about 30 times and he claimed he never saw a psychologist, doctor, counsellor or teacher.

“I was doing it hard in there and the guards didn’t care, I didn’t sleep for like about six days, there was no fan in there,” he said.

“I would ring my nan crying because the older boys were picking on me and I was lonely.

“There were no blankets or anything. I wanted to come home because I was scared.”

The alleged denial of exercise, education, solitary confinement, excessive use of restraints and lack of family contact at Banksia Hill was likened to “torture” by Amnesty International in 2018.

But poor record keeping at the jail, meant then-Inspector of Custodial Services Neil Morgan could only substantiate that in 2017, two teenagers were held in solitary confinement for 10 days, which breached international standards but not WA law because the boys were managed under individual case plans.

Banksia Hill Detention Centre facts:

First Nations youth make up 74 per cent of Banksia Hill detainees;
More than 530 testimonies have been submitted as part of the class action;
Of those, more than 80 per cent are from male complainants and 20 per cent from females;
80 per cent of the plaintiffs are First Nations, 15 per cent caucasian and 5 per cent migrants; and
10,000 inmates have been detained at Banksia Hill since 1997.

The continued problems plaguing Banksia Hill have sparked plans for a class action against the detention centre, with Mr Georgatos collecting more than 530 testimonials on behalf of Levitt Robinson Solicitors.

Among them are reports of children at risk of suicide being escorted in handcuffs to the ISU, with Luki* saying a mate of his tried to kill himself in 2021.

“He was in a rip-proof suit – he was going through a hard time because someone close to him passed away, it was very sad – he was put in isolation down the back,” he said.

Department of Justice data on self-harm and attempted suicide from July 2018 to June 2019 and July 2019 to June 2020 showed a decrease in instances of minor self-harm incidents from 145 to 113, with only one case of serious self-harm in the latter report, and a drop from two attempted suicides to one.

Dr Fitzpatrick said even after 20 years of working with disadvantaged youth, he could never get used to seeing a child far away from family and country in such a setting.

“That is the brutal reality of life for these children,” Dr Fitpatrick said.

“Moreover, it is often seen as a rite of passage into adolescence. This is our great shame.”

*Not the boys’ real names as they were underage when they were detained in Banksia Hill

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Originally published on Arena Online written by John B. Lawrence SC

Darwin Calling

‘Let us look at ourselves, if we have the courage, to see what is happening to us.’

Jean-Paul Sartre, preface to Frantz Fanon’s The Wretched of the Earth

The White/Gooda Royal Commission’s recommendations from four years ago have been largely ignored, and the Northern Territory’s punitive, carceral approach to dealing with Aboriginal children is worse than ever. The number of Aboriginal children held in the former Berrimah jail is at a record high. The prospects are desperate for these Aboriginal children and for reconciliation generally. This situation is being spearheaded by an NT Labor government—including an Aboriginal attorney-general—and is unopposed by Aboriginal Legal Aid and Aboriginal health organisations. The situation is further compounded by a media whose reportage on the gross calamity that is Aboriginal imprisonment is now piecemeal, as illustrated by its dearth of coverage on a recent Aboriginal male death in custody in the Holtze Prison.

THE ANNIVERSARY: NOTHING TO LOOK AT HERE

The date 17 November 2021 marked four years since the publication of the White/Gooda Royal Commission report and recommendations in relation to the protection and detention of children in the Northern Territory. The Royal Commission flowed from the Four Corners exposé ‘Australia’s Shame’, which screened in July 2016, and it more than confirmed the abuse and unlawful treatment meted out to Aboriginal children held in NT detention centres in the 2010s. This included assaults, spit hoods, children kept in unlawful indefinite isolation, gassing, and that horrific and unforgettable restraint chair. The inquiry further exposed those responsible at all levels, none of whom were prosecuted. A couple of untrained, inexperienced youth justice officers lost their jobs. That was it.

Symptomatic of how unimportant this regressing situation now is to this country, there was no mention, never mind commemoration, of this date anywhere in Australia; you could have heard a pin drop. This was exactly what the NT Labor government would have wished for. The local and national media, including our ABC, chose to say nothing. The NT Law Society, plus the National Law Council of Australia, also chose to do and say nothing. Likewise the NT and Australian Bar Associations. The Criminal Lawyers Association of the NT (CLANT), formerly a loud and effective activist group but now essentially a social club for NT criminal lawyers, did and said nothing. Nothing was said by any Indigenous representative group; nothing was done or said by Danila Dilba, the Darwin Indigenous Health Service, which in June 2020 was awarded a $1.4 million contract with the NT government to provide “social and emotional wellbeing services” to the children kept in Don Dale, all of whom are Aboriginal; nothing from the NT Aboriginal Legal Service, NAAJA, which represents most of the children in both Don Dale and Alice Springs Detention Centres; and nothing from the NT Legal Aid Commission (NTLAC), which also represents Aboriginal children in both detention centres. All of this silence after four years in which the situation has got worse, where virtually none of the 217 recommendations have been really implemented, along with increasing and now record numbers of Aboriginal children detained in both Don Dale and Alice Springs Youth Detention Centres. Such deafening silence, manna from heaven for the culpable Labor government, illustrates the chronic moral condition of NT and Australian society, which compounds the desperate plight of Aboriginal children caught within the Territory’s juvenile legal system.

Martin Luther King’s famous words, ‘We will remember not the words of our enemies, but the silence of our friends’, are now the covenant of these abandoned Aboriginal children and their families.

Further illustrating this depressing lack of interest, on 30 August 2021, a 31-year-old Aboriginal man suicided by hanging himself with a bedsheet from an elevated bunk bed in his sole-occupied cell in Darwin’s Holtze Prison. The NT police issued a minimalist statement that day: ‘A 31-year-old prisoner died overnight and was found unresponsive in his cell’. No further details were given, other than the standard ‘the death is not being treated as suspicious’, which is doublespeak for suicide. Yet another Aboriginal death in custody, but blink and you would have missed the media’s reportage. Both the NT ABC and the NT News reported only the skeletal details in the police media release, with no journalistic expansion on such aspects as who the man was, why he was in jail and how long he had been there. For example, no one questioned the fact that he had hanged himself with a sheet from an elevated bunkbed—what was Corrections policy as regards hanging points in cells? There were no reports in the national media, including The Guardian, which was directly advised about it and which holds itself out as a paper that dedicates a lot of its reportage to Aboriginal deaths in custody.

The screw is being turned by the Labor government, with no real opposition from Aboriginal bodies who exist to represent the interests of these children and Aboriginal people generally, and media that give inadequate coverage to such issues, which should be to the front and fore.

TRUTH-TELLING

Much is said these days about truth-telling. This is my attempt to set out what has gone on and is actually going on here. I have worked in the NT legal system for over thirty years. I have sadly witnessed this system’s degradation, which in recent years has been accelerating. This decline has been concomitant with a large drop in professional standards and quality, combined with and attached to a general moral and ethical decline, which has accelerated past tipping points to render this system dysfunctional, inhumane, racist, shameful and ultimately unsustainable. Further, such regressions have occurred in a jurisdiction that boasts the highest imprisonment levels in the world, with 86 per cent of adult prisoners Aboriginal and 100 per cent of juvenile prisonersAboriginal. My view is that the juvenile justice system now needs to be dismantled and completely replaced. I think they call that ‘transformational change’.

The unforgiveable reality is that everyone involved in this “system” is, to varying degrees, invested in its continuation—the maintenance of this dismal status quo. Australia as a country badly needs redemption and reconciliation with Aboriginal people. By 2040, 50 per cent of the NT population is projected to be Aboriginal. What has and continues to happen in the NT legal system flies in the face of achieving any proper and decent relationship between Aboriginal people and Australia, the nation. The Uluru Statement from the Heart has just floundered and this aspect is one of the reasons why.

THE FOUR YEARS SINCE THE ROYAL COMMISSION REPORT

At the time of the tabling of the report on 21 November 2017, NT Labor Chief Minister Michael Gunner told the Legislative Assembly, ‘I take responsibility for fixing the system so no future Chief Minister will have to address these same problems’. Dale Wakefield, then Minister for Territory Families, followed up by declaring that the report was ‘possibly the most important document that our government has received’. Words from members of the dreaded Australian political class really don’t mean much. Australia, the country whose current Prime Minister’s reputation is that of being a liar.

A) DON DALE DETENTION CENTRE

Predictably, the loudest recommendation (Recommendation 10.2) that White and Gooda made was that Don Dale should be immediately shut down. This was totally ignored. Aboriginal children are still there in record numbers and they’ve been there since 2014!

Don Dale Detention Centre was a custom-built Youth Detention Facility that opened in 1991. It was closed in 2014. It remains closed. The place where Aboriginal children are now held in Darwin is called ‘Don Dale’, but it is in fact the former Berrimah Prison for adult men. This same Berrimah Prison was described in 2011 by the then CEO of NT Corrections Ken Middlebrook as ‘only fit for a bulldozer’. Berrimah Prison was a condemned and mothballed structure in 2014 when then CLP Attorney-General John Elferink decided to close Don Dale Youth Detention Centre, reopen Berrimah Prison and put all the children in there. His explanation for doing so was to ‘enable us to deal with some of these juveniles who have caused us grief’. Aboriginal children, boys and girls, have been locked up in this place since 2014. NT judges have, since 2014, been sending Aboriginal children into this place. There is no way in the world this would be happening if those children were white. This feature alone presents as a good example of the normalisation and ennui that afflict all the players within the NT legal system.

This month, for the first time since children have been kept there, I was able to visit Don Dale. The experience was shocking. Cells previously occupied by paedophiles and murderers are now occupied by children. I’m representing an 11-year-old Aboriginal boy who is detained there, charged with a series of mainly property offences and bail breaches. The 11-year-old is kept in a small cell, alone with a broken TV. He gets locked down at 6.30pm each night. Alone. I visited him on two occasions, following which the well minded guards allowed me to walk through some of the jail precinct with my 11-year-old client, returning him to the ‘school room’ and the basketball court. I walked through its precincts in the heat of a Darwin day. It consists of crumbling concrete, rusted steel and worn iron mesh. The ‘joint’ no doubt hosts all kinds of criminal ghosts and spirits. It reminded me of the opening scene in Sir David Attenborough’s Life on Our Planet as he wanders through the crumbling 1970s-built Ukrainian town of Pripyat, the service town for Chernobyl, condemned and deserted since the explosion in 1986. The guard, the 11-year-old and I walked through this dystopian landscape to the darkened ‘school room’, a converted concrete pillbox-like room where the Aboriginal kids were all gathered watching some loud movie. It was raucous, bordering on chaotic. Dotted through this derelict jail are recently painted murals, a cynical attempt to try to humanise this dead zone. This Potemkin village window dressing merely compounded the sickness of the whole place. When I delivered this Aboriginal child into that classroom full of 14- and 15-year-old Aboriginal kids, for the first time ever, having worked in this field for over 35 years that horrible word “APARTHEID” came straight at me. The whole experience equated to, “This is where we put the blacks.” The reality, the ‘truth’ of this situation, is that there is no way in the world white Australian children would be detained in such a place. This looks like, feels like, equates to apartheid. How has Australia descended this low?

Failing to tell the truth matters. I record and disseminate these observations in order to expose the ‘looking the other way’ that normalises our growing indifference to truth. It was the heroic Second World War Polish resistance fighter Jan Karski who said, ‘He who does not condemn acquiesces’. What we have descended to here is very much the price of acquiescence—our harvest of neglect. So much of this fall is explained by more than twenty years of pursuing ‘the collaborative approach’ and acquiescing. And now we have silence.

B) 2018–2019

In November 2018 the children themselves had had enough of Don Dale. They stole one of the guard’s keys and rioted, causing criminal damage that included burning down two buildings. They climbed onto the roofs and protested. The fully armed Tactical Response Group (TRG) attended, and after hours of stand-off and the deployment of tear gas, the children surrendered at gunpoint. Similarly, in July 2019, the children again escaped their cells and demonstrated from the roofs. Again the TRG attended. Following negotiations, the children surrendered.

C) 2021

This year provides a good example of the way this NT Labor government really treats Aboriginal children. Succumbing to the usual political pressures applied by exaggerated NT News stories about crime waves, etc., and following the only real policy they adhere to, that being ‘whatever policy keeps us in government’, the NT Labor government introduced amendments to the Bail Act and the Youth Justice Act guaranteed to increase the jailing of Aboriginal children. At the same time, in confident anticipation, they announced an outlay of $5 million to make available further closed-down cells from the former Berrimah Prison. The law was amended on Tuesday 11 May 2021, and within two months the number of Aboriginal children detained had gone up markedly. At the time of writing, the figures are the highest ever.

The government tried to sugar these punitive measures with a sleight-of-hand policy that reeks of political cynicism. It’s called the Aboriginal Justice Agreement (AJA) and comes from the Aboriginal Justice Unit, part of the NT Department of Attorney-General and Justice. The director of the unit and the face of the AJA is Leanne Liddle, an Aboriginal woman from Alice Springs who is a lawyer and a former South Australian police officer. She has just been appointed the NT Australian of the Year for 2022. The AJA is a classic piece of political chicanery and a product of the ‘Post-Truth Age’. It took all of four years to produce and apparently it will take seven years to take effect. It comes in the form of your usual attractive document, including dot paintings by Aboriginal primary-school children. It is an agreement signed by the NT Labor government, NAAJA, NTCOSS and others and consists in the main of classic mission-statement pap and revamped concepts, all of which have been produced and refined over literally scores of similar reports since the 1991 Royal Commission into Aboriginal Deaths in Custody and before. Words, words, words. Nothing new and no substance. It’s best judged by the things it chooses not to include, which would in fact reduce Aboriginal imprisonment, namely: closing Don Dale in accordance with Recommendation 10.2; a commitment to implement all recommendations from the White/Gooda Royal Commission within twelve months; abolishing mandatory sentencing; increasing the age of criminal responsibility from ten to fourteen; and allowing Aboriginal Customary Law to be taken into account, when appropriate, in sentencing.

INCONVENIENT TRUTH-TELLING

The behaviour of this NT Labor government in not only failing to implement the Royal Commission’s recommendations but also compounding the severity of the carceral regime against Aboriginal children is unforgiveable. This Labor government consists of fifteen MLAs out of twenty-five. Five of them are Aboriginal. It’s a bragging point. We have a female Aboriginal attorney-general. We have a female Aboriginal speaker of the House. The optics might be stunning, but the truth is these amendments have been brought in by an Aboriginal attorney-general and supported by the other NT Labor Aboriginal MLAs. The only and telling dissent in the NT Parliament was from Aboriginal Independent MLA and Yolngu leader Yingiya Guyula, which was, of course, ineffective.

CONCLUSION

My attempt at truth-telling paints a bleak picture, but then why wouldn’t it? Australia as a country has descended in the last twenty years to being a place with no moral authority. Once known as the Lucky Country, it is now more accurately described as the Selfish Country. It is a country whose people have become more individualistic and self-centred. A country that, unlike other developed countries, chooses to cut its foreign aid to other countries. A country that, unlike any other, has prosecuted cruel and inhumane offshore-processing policies against thousands of refugees fleeing persecution. A country whose dreadful racist relationship with its Aboriginal population if anything only deteriorates. A country whose attitude and policies towards The Big One, climate change, are almost world’s worst, and whose elected prime minister tells the rest of the world, ‘The Morrison Government will always stand up for and make decisions which are in the Australian national interest’.

It seems to me that for this country to turn this around, it needs the people to take direct action. Frederick Douglass taught us that, ‘if there is no struggle, there is no progress’.

It’s not without significance that the only people in this sad tale who actually put up any real resistance or opposition to these wrong and barbaric policies are those Aboriginal children locked up in that hole the NT government calls ‘Don Dale’. They in many ways lead by example. The only way this country is capable of arresting this horrific trajectory is by people from all walks of life taking direct action against the injustices that abound. Our situation is similar to those faced by Emmeline Pankhurst, Martin Luther King and Mahatma Gandhi. They realised that the only way to achieve justice was to take direct action against the powers that be. The suffragette movement put it best with its motto, ‘Deeds, not words’. Australians, not just Aboriginal Australians, need to seize this moment now, as time is rapidly running out. As Eddie Mabo’s Counsel, Ron Castan QC, put it: “A belief in justice is empty if it’s not expressed in action.”

***

As the Clash sung back in 1979: “…I never felt so much alike, alike, alike…”

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Originally published on The West Australian written by Carly Laden

Photo Credit: Simon Santi/WA News

Banksia Hill Detention Centre: Explosive claims of mistreatment made during Bunbury Children’s Court hearing

A South West magistrate has postponed the sentencing of a teenage thief and ordered a report from WA’s only juvenile jail after being told detainees were being locked in their cells for up to 22 hours a day.

Magistrate Belinda Coleman expressed shock at the allegation raised by the lawyer for a 16-year-old who was due to be sentenced after pleading guilty to charges of stealing, trespassing, criminal damage and cannabis possession.

Derek Hunter said he was informing Bunbury Childrens Court on the boy’s instruction that his client and many others held in custody at Banksia Hill Detention Centre were “locked in their cells for almost 24 hours per day”.

“Sometimes they would get one or two hours out of their cell, sometimes none at all,” he said.

“This is a matter of significant concern and it is so arduous on matters that come before the court for sentencing.”

The court was also told children held in custody at the Canning Vale facility — the State’s sole detention facility for offenders aged 10 to 17 — were not given support or any educational programs.

Magistrate Coleman said she was “very concerned” by Mr Hunter’s submission.
“That is certainly not the intention of the Banksia Hill Detention Centre, to essentially lock children up in solitary confinement,” she said.

She said it was appropriate to adjourn sentencing for a week and order a detention management report to find out exactly what was going on at the youth detention facility.
“This information and the report I have just ordered will be very relevant to how I deal with you next week,” she told the defendant.

The boy was remanded in custody with his sentencing adjourned to December 10.
Social justice advocates have launched a historic class-action lawsuit against the State Government over he treatment of children at Banksia Hill Detention Centre, which was the subject of a damning Amnesty International report in 2018.

The law firm behind the legal challenge has written to the Government warning that the centre was a “tinderbox” on the brink of detainee upheavals similar to those in 2013 and 2017.

The letter detailed “ongoing prison brutality and “inhumane treatment” of young people at the centre.

Megan Krakouer from the National Suicide Prevention and Trauma Recovery Project was one of the organisers of a rally last week against “brutality and inhumane treatment” at the centre.

She also said she had received reports that troubled youths who were in desperate need of counselling were not receiving one-on-one treatment because of a lack of resources.

“These kids are screaming for help,” she said.

“There have been allegations of self-harm at the centre within a two-week period.
“When you have young people who have spent weeks or even months in isolation without any psychological support . . . it can be damaging.”

Social justice advocate Gerry Georgatos said the lawsuit was not about compensation but about compelling change.

Mr Georgatos said so far 500 former inmates or family members of former inmates had joined the class action but he expected the number to grow into the thousands by the time it reached court.

The Justice Department declined to comment on the claims made in court.

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