Public hearing 27 - Conditions in detention in the criminal justice system, Perth - Day 5

RESUMED 8.33 AM

CHAIR:  Good morning to everyone who is following these proceedings. This is the fifth hearing day of the Royal Commission's Public hearing 27 which is investigating conditions in detention in the criminal justice system for people with a disability. For those of you following the proceedings, you will know that we intended to have five hearing days in Perth. One of those hearing days could not go ahead because of the public holiday following the death of Queen Elizabeth II. 

Today, we will have the fifth day of the hearing, and this will provide an opportunity to hear from representatives of the State of Western Australia. It's not practicable or has not been practicable for us to continue the hearing for one day in Perth, and so this hearing will be conducted remotely. Commissioners Mason and McEwin are in Adelaide for the purposes of this hearing. I am located in Sydney. Mr Griffin SC, Senior Counsel Assisting the Royal Commission, is located in Sydney as well. 

I shall now invite Commissioner Mason to make the Acknowledgement of Country. 

COMMISSIONER MASON:  Thank you, Chair. Kaya. We acknowledge the Gadigal People of the Eora Nation are the original inhabitants and traditional owners of the lands on which we gather today. Their lands are near where the city of Sydney is situated.  We acknowledge their ongoing spiritual and cultural connection to Country. We acknowledge the Kaurna people of Tarntanya Wama, where the City of Adelaide is now located. And we acknowledge the Whadjuk Noongar people.  Their lands are where the City of Perth is situated. 

We pay our deep respect to First Nations people here today and who hare following this Public hearing online on the mainland and on islands, including the Torres Strait, especially elders, parents and young people with disability. We recognise all First Nations people and acknowledge their enduring connection to land, sky, seas and waterways. Thank you, Chair.

CHAIR:  Thank you, Commissioner Mason. Yes, Mr Griffin. 

MR GRIFFIN:  Commissioners, before I call the first witness today, can I make a brief opening in relation to an announcement made by the Honourable Bill Johnson MLA, Minister for Mines, Petroleum, Energy, Corrective Services and Industrial Relations for the State of New South Wales. On last Tuesday the  

CHAIR:  State of Western Australia. 

MR GRIFFIN:  State of Western Australia, I should say, made last Tuesday, 4 October. The release from the Minister indicates the Western Australian government to review young offender laws and it says:

    ‘Department of Justice instructed to review Young Offenders Act 1994.  Review to consider the Act's objectives in current youth justice environment. Stakeholder consultation will help underpin examination of the laws’.

It then goes on to say as follows:

    ‘The Western Australian government will undertake a comprehensive review of youth offender laws to ensure they can provide the best outcomes for young people involved in the justice system and the community.

Corrective Services Minister Bill Johnson has instructed the Department of Justice to determine whether the Young Offenders Act 1994 is continuing to efficiently achieve its objectives regarding contemporary youth justice issues and trends. Key principles of the Act include diverting young people from the formal criminal justice system where possible and using detention as a last resort, while protecting the community. 

The review comes as the State's Corrective Services, police force and courts face and adapt to a changing youth justice landscape. It will examine the over representation of young Aboriginal people in detention, the effect of cognitive impairment disability on diversion, and the isolation and separation of detainees. 

A consultation process will be undertaken as part of the review. An issues paper will be circulated seeking feedback from stakeholders on diversion methods, rehabilitation and reintegration into the community. Written submissions received in response to the paper will inform the review, which is expected to be completed in the next 12 months’.

The Minister went on to say:

    ‘Youth justice is a highly complex area involving extremely challenging young people who have committed crimes or are at risk of doing so, and, in many cases, they need help to get back on the right path. Young Aboriginal people make up a disproportionate number of young offenders and young people in detention, which will be considered in the course of the review. Few would argue against the need for greater diversionary and rehabilitative measures for Western Australia's youth and addressing the over representation of Aboriginal people in the justice system’.

He concludes:

    ‘The review aligns with the McGowan government's priority of reducing youth offending’.

Commissioners, Counsel Assisting you in this inquiry are pleased with the announcement by the Minister.  It seems to pick up many of the issues we were canvassing in the public hearing in Perth over the first four days. We have a particular interest in receiving a copy of the issues paper, in being informed as to who will conduct the review and the degree to which it's independent of the Department and particularly of the precise terms of reference of the review. 

If those with leave to appear on behalf of the State of Western Australia are able, in the short term, to provide any information in respect to those issues, it would be appreciated. May I now move to the witnesses, and I call Dr Joy Rowland to give evidence and can I indicate Dr Rowland has already made an oath.

CHAIR:  Thank you. Dr Rowland, good morning and thank you for coming to the Royal Commission remotely, as it were, in order to give evidence today. Just to explain, if you're not already aware, where everybody is, Commissioner Mason and Commissioner McEwin are joining this hearing remotely from Adelaide, I am in the Sydney hearing room of the Royal Commission, and Mr Griffin, who will ask you some questions shortly, is also, in the Sydney room. You, of course, are in Perth. So, we're in three separate locations, which is not unusual for this Royal Commission. 

I understand you've taken the oath. So, I will now ask Mr Griffin to ask you some questions. Thank you. 

<JOY ROWLAND, SWORN
<EXAMINATION BY MR GRIFFIN

MR GRIFFIN:  Commissioners and people with leave to appear in this inquiry, can I indicate Dr Rowland has provided a statement for this Public hearing dated 9 September 2022, which bears the identifier STAT.0616.0001.0001. This statement can be found in hearing bundle C.1 at tab 48.  Attachment JR1 contains her response to the notice to give information, number WA NTG 00020.  The attachments to the notice to give information are at tabs 49 to 59 in hearing bundle C.1. 

Dr Rowland, are you the Director of Medical Services for the Department of Corrections in Western Australia and have you held that role since April 2018? 

DR ROWLAND:  Yes, I am and I have. 

MR GRIFFIN:  So, you've been in that position for approximately four and a half years? 

DR ROWLAND:  I was at   I was also acting in that position and I job shared in that position prior to 2018, for a variable time since 2013.

MR GRIFFIN:  You're a general practitioner with a degree of specialisation and a particular interest in mental health. 

DR ROWLAND:  Yes. 

MR GRIFFIN:  And you've had extensive experience in the Aboriginal health system in Western Australia? 

DR ROWLAND:  Yes, I have. 

MR GRIFFIN:  Can you indicate the nature of that experience and any observations you have made?

DR ROWLAND:  So, my experience with Indigenous health began prior to doing my medical degree because of my family background and history.  But since qualifying, I have worked in rural areas as much as I possibly could and I've worked with Aboriginal Medical Services including in Bega in Kalgoorlie, GRAMS in Geraldton, Wirraka Maya in Halls Creek, OVAHS in Kununurra, BRAMS in Broome and at Port Hedland, yeah, and I've worked in WACS hospitals which have a high number of patients from an Indigenous background. I worked in Fitzroy Valley Health Service, which had a very active partnership with Nindilingarri Cultural Health Service from 1999 to 2007 and worked extensively with Nindilingarri in setting up a partnership and co locating our services. So, that's just some of my experience. 

MR GRIFFIN:  Can I take you to paragraph 23 of your statement. 

DR ROWLAND:  Yes. 

MR GRIFFIN:  You indicate there that pre sentence reports are not accessible to health services due to section 22(4) of the Sentencing Act 1995 (WA). That section says:

‘A written pre sentence report must not be given to anyone other than the court by or for whom which it was ordered and the CEO (Corrections)’.

Do you see that? Are you aware of that section of the Act? 

DR ROWLAND:  Yes, I am. I've looked at the Sentencing Act and also read some State Solicitor's advice regarding the Sentencing Act that our Director of Health Services sought in 2014. I actually made some progress in this area since I wrote my statement. 

MR GRIFFIN:  Before you go on to that, can I just ask you one question. I appreciate   I take it you're not a lawyer by training? 

DR ROWLAND:  No. 

MR GRIFFIN:  Section 22(4a) says:

    ‘The CEO (Corrections) may use the information in a pre sentence report to assist with the management of the convicted or sentenced offender for whom the report relates’.

Have you received any advice as to whether or not that news section, 22(4a), would enable such information in a report to be provided to you and others? 

DR ROWLAND:  Yes, so that section was used since 2014 to provide limited access to sections of pre sentence court reports to various parts of the Department, but free and unlimited access hadn't been provided to health services. I have found out in the last couple of days in some conversations with other providers in the Department that approximately 18 months ago, there was a decision made in court where an additional sentence is added to the pre sentence court report, stating that access is   unless otherwise stated - access is available.

And apparently this has enabled freer access within our department. And our Director of Health Services is putting now an application through for Health Services to have that same access through our record system. So, we may have resolved this issue. 

MR GRIFFIN:  So, to that extent, your statement doesn't reflect the current situation; is that right? 

DR ROWLAND:  I think we've managed to make significant improvement since I wrote that statement, but the   there could be further improvement made because accessing the contents of a pre sentence court report through a record system is somewhat clunky, and a component of the pre sentence court report, which is the neurocognitive assessment which is frequently done, is of itself a standalone medical assessment and could be included in our results the same as an X ray or MRI or blood test.  It could be included within our medical system, embedded as a result and much more readily available for staff to refer to. 

MR GRIFFIN:  When I read the Sentencing Act, Dr Rowland, it seemed to me that section 22(4a), when it says:

‘... assist with the management of the person …’.

- could be read to mean that management would include the health services you're endeavouring to provide to inmates and detainees. Is that the gist of the change you've just described? 

DR ROWLAND:  Yes. So, include for our ability to use management is whether or not an excerpt of the pre sentence report or that neurocognitive report specifically could be directly embedded in our medical record system as an additional   .

MR GRIFFIN:  And that's important because frequently specialist expert reports are prepared for the court, and those reports, or a summary of those reports, appears in the pre sentence report; that's correct, isn't it?

DR ROWLAND:  Exactly    yes. 

MR GRIFFIN:  And, previously, your health service was being deprived of that very important information in the work you had to do? 

DR ROWLAND:  Yes, we didn't have really access to just review what had been done in neurocognitive reports and completion of, say, for example, NDIS application or understanding what an individual's challenges were so we could best work with them was not as straightforward as it potentially is going to be with these improvements. 

MR GRIFFIN:  And one of the difficulties you had, as I understand it, was that if you wanted to obtain a private specialist report, there was a considerable cost involved? 

DR ROWLAND:  Yes, and additionally, if you consider it from the point of view of a person, those assessments are time consuming and quite tiring. They sometimes are done across a couple of sessions and can involve different Allied Health professionals.  So, asking someone to undergo that process repetitively would be unfair for them as well as it being expensive or time   you know, taking considerable time to arrange. 

MR GRIFFIN:  Am I correct in understanding that if you wanted to get the report done at public expense, that there was a considerable delay in obtaining the services of a specialist to undertake that task? 

DR ROWLAND:  Yes, it used to not be available in the public system. There is now a public referral pathway but the demand in the community is, as I understand it, still outstripping the supply. 

MR GRIFFIN:  So, if there was a young person today in Banksia Detention Centre and you or your team decided that you required a specialist report, how long would they have to wait, if it was done through the public system? 

DR ROWLAND:  I would have to ring them today to find out what their current wait list is today, but the last time that I rang and inquired, the wait was anticipated to be about 18 months. But wait lists in the public health system can be quite dynamic so I wouldn't want to state that is the wait list today without ringing the hospital again. 

MR GRIFFIN:  And in the case of Banksia, a very high percentage, at any one time, of detainees are on remand. Is that your understanding? 

DR ROWLAND:  Yes. 

MR GRIFFIN:  Presumably, very few would be on remand for a period of 18 months? 

DR ROWLAND:  True. 

MR GRIFFIN:  So, if there was an 18 month wait list for a public specialist report, presumably you wouldn't even bother going down that path in relation to a remandee, because they would be out of the system, potentially, before the report could be assessed and conducted? 

DR ROWLAND:  I disagree with that because we don't consider that only things that we can achieve completely are worth starting, and they would remain on that wait list and their appointment would still appear over that period of time, and whether that benefitted them in the community or whether it benefitted us, it would still be a benefit to their health.  So, we often write referrals for services that a person is very likely to be in the community at the time they receive.  It's ensuring that continuity of care and communication so that they stay on that wait list and they get that service. 

MR GRIFFIN:  So if a notional detainee in Banksia today had a report ordered by the public system, and they were released in three months' time, who would follow up to try and ensure they undertook the assessment when the 18 month period came around? 

DR ROWLAND:  So continuity of care on return to community can be complex. If the person has a stable place of accommodation and they regularly see a primary health care provider, then our discharge letter and communications to that primary health care provider should be sufficient, and if they're   if a person and/or their guardian understood as well, then they could follow that up in the community. Very similar to if someone's at Halls Creek and you refer them and then they move to Kununurra or Broome, there's still the need for good communication and coordination.  So   but notifying their primary health care provider of their choice at the time of discharge that there's a pending referral and ensuring the person understands is part of the process. 

MR GRIFFIN:  So, firstly upon release, there would be a discharge letter; is that correct? 

DR ROWLAND:  Yes, so we have   and there is a copy, I believe, of a discharge letter in the folder. It is a standard discharge letter which is generated from the medical record and has   staff can also add additional information on to that. We also seek to proactively obtain consent from the patient so that if in the event that the hospital sends us the appointment, believing that they're still in custody but they've now moved to the community, we obtain consent to provide the hospital with the last known address that we have on our records, so that we can ensure that person, even though they're now in community, receive them. 

MR GRIFFIN:  So, at that point, would the primary responsibility rest with the released youth and their primary health provider in the community? 

DR ROWLAND:  So, if they provide with us a primary health care provider and we've sent that information to them, yes, then we have to assume that they will follow that up. We don't have an ongoing ability to provide care to them. 

MR GRIFFIN:  If they don't provide the name of a primary health provider upon release, do you then have any obligation to follow up with them directly? 

DR ROWLAND:  Not in regards to outstanding appointments, but the patients can also notify the public health system of their current address, and there's a phone number and an email address that we can use for that that we can provide for that, to say, ‘If you change your address, contact them on these numbers’. Of course, a lot of people that come in and out of custody find navigation of health systems complex anyway, and we know that there's a relatively poor history of appropriate use of health services prior to coming into custody, and thus may face the same challenges in navigation on release.

So, preferably, there is a care coordinator, such as a primary health care provider. We often, if they aren't able to name a primary health care provider, will suggest some potential primary health care providers in the area in which they reside or recommend, for example, that they ask their family who they trust and, you know, find that information prior to discharge so we can assist them. A copy   a printed copy of the discharge letter is also, included in patient property, and they may take that with them to their provider of their choice. 

MR GRIFFIN:  Dr Rowland, you pre empted my next question. It seems as if a released young person doesn't have a primary health provider, the chances of them following up for that specialist assessment would appear to be slim. Is that a fair inference? 

DR ROWLAND:  It can be challenging, but a lot of the children that come into detention   and we're particularly talking about detainees   have additional care coordinators such as they're already under the Department of Community, Child Protection or   and/or they have their Justice Community Officers who will also, assist them and access appropriate services and will often be aware that they need follow up services. So, it isn't as vulnerable as it may sound. 

MR GRIFFIN:  Might the chances of them following up for that expert assessment be increased if community based organisations had more access to Banksia so they would be aware of all of these developments before the young person was released and could take some responsibility for following up? 

DR ROWLAND:  Whether that point of transition occurs at the point that they return to community with those letters and phone calls and et cetera, as I've discussed, or whether you try to make more of it occur the week or two before they leave, there's still a point of transition, and you still need good communication. And a lot of the people that are in detention, even in custody, don't live at the place where the facility is. So, for example, if they live in Kununurra, then OVAHS or the primary health provider in Kununurra is not able to visit them in Banksia or visit them in Derby Prison because of the distance. 

So, I think a system that is flexible no matter who they choose as their primary provider, can we optimise that communication for that period of transition   and I've known of nurses to actually help patients book an appointment before they leave us, particularly if they're on medication, so that they've got an appointment with that provider on the list. I think that system is more flexible for a range of providers than assuming the external provider can come in and visit as an external visitor.  It would be   I think that would be far more complex. 

MR GRIFFIN:  Why? Why would that be less preferable to what you've just explained? 

DR ROWLAND:  Because of the population in the centre, there would be multiple primary health care providers they might choose to use on return to the community. So, yes, there may be 20 different community providers that are the choice of people in detention and to contact 20 different providers and ask them to come and visit the prison to make contact prior to release becomes complex, versus ensuring that those providers receive letters and information. 

It's quite likely a lot of those primary providers wouldn't be able to provide that service of coming in and seeing them prior to release and if you had only a single external provider coming in, then you are minimising the choice of the individual and dictating who they see, versus allowing them choice and flexibility. 

MR GRIFFIN:  If the young person had not been previously the subject of an expert assessment, is another factor that, upon release, they may not be aware of how important it was for them to undergo such an assessment? 

DR ROWLAND:  It's obviously a component of noticing that someone has an impairment in cognitive functioning, that there is an impairment in their cognitive functioning. And if there is an impairment in memory or impairment in executive functioning or impairment in attention or impairment in decision making processing, then it follows on naturally that they're less likely to navigate the system than someone who doesn't. So, as I mentioned, a lot of people in detention have other care providers and guardians, parents, et cetera, who are also able to assist them in navigating that system. 

We don't   we wouldn't expect an impaired youth to take personal responsibility for arranging their own transport, et cetera, to an appointment. You would assume there's some, you know, you would assist in putting that support in process through an adult guardian or some other responsible person was aware. But we do have, regardless of which service we're referring them to, be it neurocognitive, cardiology, ENT, et cetera, we do know that the DNA rate and the non attendance for people in the community, all appointments that have been arranged, is likely high, and it's likely high even if they're not in detention. 

So, a lot of people who come to us have a history of non attendance at specialist appointments even whilst they were even in freedom, even for referrals that were made for them by their community provider whilst they were in the community. It's the nature of the people that end up in trouble with the law, is they also often have difficulty attending appointments and navigating health systems and navigating    systems.  So, we inherit people who find that challenging and they may still find it challenging on release. But, as best as we can, we put in additional supports for them. 

MR GRIFFIN:  Just for clarity, Dr Rowland, DNA in that context is ‘did not attend’?

DR ROWLAND:  Yes, sorry, ‘did not attend’. 

MR GRIFFIN:  I'm still troubled, Doctor, by those who don't nominate a health provider but clearly need, in the view of your team, such an assessment that no particular person is given the responsibility to follow up upon release. Is that a gap in the system you describe? 

DR ROWLAND:  As I indicated, there are several people who would generally be supporting most of the detainees. So, that would be unusual for a detainee   and I'm trying to imagine the situation in which it would occur   in which they would be leaving with the sole responsibility to take care of themselves without there being someone else involved or without there being a nominated clinic that they said they would like to attend. So   

MR GRIFFIN:  But Dr   

DR ROWLAND:    give further thought to which other scenarios and which are the direct links and which community service would be appropriate for a State wide service to a public system, and I think the fact that a lot of these children are getting pre sentence court reports done, and if we can improve our access to the work that's already being done, it would be a much simpler process to ensure that we have access to reports that are done and look at a fast track system to obtain those reports, rather than resolving the potential    of a long wait list. 

MR GRIFFIN:  Could the practitioner to whom the referral is made, even though there's a long wait period, or the organisation to whom the referral is made be given the details of the person and responsibility to follow up when time becomes available? 

DR ROWLAND:  Well, the referral contains the details of the individual, and typically their booking client will make an appointment, that appointment will be sent to the address provided on the referral, and I indicated already some of the ways in which we try to ensure that if the address has changed that we have consent to provide it and/or the person provides it themselves. If that appointment is returned to the clinic, they will usually contact us and ask if we've got any way of contacting them.

Or they will be   and if they   if the appointment is received or the clinic believes it's received but the person doesn't attend, some clinics have a one strike and you don't get a repeat appointment. Some other clinics have a   offer a second, offer a third appointment before they take them off the list. It depends on the individual rules of individual specialist clinics. So, for some people, they will get a repeat appointment made which will also be received    second chance to attend    otherwise, personally, for the public health system to go further in finding people who have not attended at the clinics would be a question for the public health service and the Department of Health. 

MR GRIFFIN:  And just to finish this topic, are you aware of any data which would tell us what I might call the attrition rate? How many people are referred for an expert assessment but, for one reason or another, that assessment never occurs? 

DR ROWLAND:  No, I don't have the data on it across specialties. The longer the wait list, the longer the attrition would be - a typical scenario. And if the person who was referred couldn't remember or couldn't understand the importance of attending, then the attrition rate is higher. People who have pain are more likely to attend their orthopaedic appointment than someone who has a silent painless condition, for example. 

MR GRIFFIN:  But some of these specialist assessments, if done privately, currently cost between six and eight thousand dollars, don't they? 

DR ROWLAND:  They are the sort of costs quoted to me recently at the time I prepared the report. I rang for updated costs, yes. 

MR GRIFFIN:  And in your experience of a typical detainee at Banksia, they or their families would be unlikely to be able to come up with that amount of money for a private assessment; is that correct? 

DR ROWLAND:  Yes. If Medicare   there is a Medicare rebate they can apply for but it's not a large percentage of that cost, from memory. But a significant number are done through pre sentence court reports, which would mean they were paid for by the public. 

MR GRIFFIN:  There's a certain irony, Dr Rowland, in someone getting the assessment they need because they're in the criminal justice system. 

DR ROWLAND:  Yes, and the implication there being that the criminal justice system is the catch all for community failure and that if the issues were resolved in the community, that we could bypass and proactively prevent them ending up in detention, yes. 

MR GRIFFIN:  Based in your experience, Doctor, do you know whether the NDIS would cover the cost of an assessment if the person was a participant in that scheme? 

DR ROWLAND:  If   so catch 22, chicken and egg a little bit there because to become a   to be enrolled in the NDIS they first need to meet the criteria, which can require the neurocognitive assessment. If they've met the criteria for a different reason, let's say they had 70 decibels hearing loss and they met the criteria on the basis of hearing, then additional assessments such as neurocognitive and/or sleep apnoea assessments, et cetera, you can sometimes get funding for additional assessments that impact on the function of the person if you can put it under the banner of their needs under NDIS. 

So, I have seen that occur before where we have successfully received funding for sleep apnoea assessments and a funded CPAP machine for a person who was on NDIS for a different disability. So, there is potential, but, as I said, if the primary problem and the main problem is neurocognitive, then they're not on the NDIS until you have objective evidence and can complete the forms adequately to succeed in that application. 

MR GRIFFIN:  Doctor, can I now move on to some  

CHAIR:  Just before you leave, may I ask a couple of questions. I'd just like to be clear that I understand some of the evidence that you have given. You've been in your position, either acting or permanent, from April 2018, I think; is that correct? 

DR ROWLAND:  Yes.

CHAIR:  The section that Mr Griffin read out to you, section 22(4a) of the Sentencing Act, that says:

    ‘The CEO of Corrections may use the information in a pre sentence report to assist with the management of the convicted or sentenced offender to whom the report relates’.

That's been in the Act, you can take it from me, for the whole time you've been in your position. My first question is   and I understand you're not a lawyer - my first question is whether when you took up your position you asked if you can have access to pre sentence reports? 

DR ROWLAND:  So not   not direct   not directly in, as in that question. I've raised it as an issue, and people hadn't provided me that solution, and I'd also put forward a suggestion that we had paid neurocognitive assessments that Health could have access to if they hadn't already been done as part of our reception assessment. And although I have been in this role since 2018, neurocognitive impairment and access to pre sentence reports is only one of thousands of issues that I'm dealing with. It's   my role is extremely broad and we have a lot of health priorities all in competition with each other. There's a limit to what one individual can achieve. But we  

CHAIR:  Dr Rowland, I'm sorry, I just asked actually, I thought, a rather straightforward question, which was whether you asked to be provided with pre sentence reports? And the answer, I take it, is, from what you've said, no? 

DR ROWLAND:  Not directly, no.

CHAIR:  Wouldn't it have been very helpful to the work which you have to do to be   to have access to those pre sentence reports from the very beginning? 

DR ROWLAND:  Yes, but I believe that it was more complex because it had already been looked at by other people, etcetera, so I didn't   if the solution had been that simple, why hadn't it already been resolved.

CHAIR:  I see. As I understood your evidence, you said that a decision had been made some 18 months ago for you or at least the CEO of Corrections to get pre sentence reports rather freely, but that you didn't become aware of that decision until very recently. Have I understood that evidence correctly? 

DR ROWLAND:  Yes.

CHAIR:  Have you inquired why nobody troubled to tell you that this option was available? 

DR ROWLAND:  I haven't made a formal inquiry. At the meeting in which they became aware of this, I asked what action they had taken and they listed a range of providers that they had added access to and indicated they hadn't thought of us.

CHAIR:  Who is ‘they’? 

DR ROWLAND:  The person who was acting at the time, which I believe was    there was quite a few people at the meeting but I think it was someone from the Disability Services Unit who said that, but whether or not they had been personally responsible for that at the time, I'm unsure.

CHAIR:  And have you actually had access to any pre sentence reports since you became aware of the change in policy? 

DR ROWLAND:  Not since. And that's only a few working days we're talking about there. But I have previously seen some pre sentence court reports when I have been able to gain access to them, particularly when I've been asked to respond or provide particular information.  So, there has been occasions where I've had access or seen them. It's just having that ready access for anyone when I want it. They had   it has now   hopefully we have resolved, not only for myself but for other members of the Health team.

CHAIR:  Thank you. The only other question I've got relates to something Mr Griffin asked you. If it is a good thing or desirable for a detainee who is about to be released, for that person to have contact with a nominated health provider, would there be any difficulty about arranging a videoconference for that purpose if the health provider is located in an area well away from Perth? 

DR ROWLAND:  No. We use telehealth for a wide range of reasons, and we use it extensively. So, being able to videoconference to an external provider is certainly possible.

CHAIR:  So that it would not be an insuperable obstacle that a health provider might find it difficult to travel, for example, from Kununurra to Perth? 

DR ROWLAND:  Yes, that's true. I didn't have it in my mind when I was asked that question. I hadn't expected it then.

CHAIR:  Thank you. 

MR GRIFFIN:  Doctor, can I now take you to that part of your statement dealing with screening and assessment of people with disability. 

DR ROWLAND:  Yes. 

MR GRIFFIN:  And following reception, which commences at paragraph 7 of JR1. Do you have that? 

DR ROWLAND:  I'm not sure. Okay. Yes. 

MR GRIFFIN:  You were outlining in that section of your statement what the process is in relation to prisoners and also detainees. Upon reception, a Custodial Officer will ask a series of questions about health and wellbeing, and that's outlined in paragraph 8. What does that Custodial Officer typically have by way of any records when they ask those initial questions? 

DR ROWLAND:  I've not done that role, so   but they will have the transfer papers from the police, which can include a note from the police lockup. And they   if the person has attended hospital and received a fitness for custody assessment, they will have that note confirming fitness for custody. Sometimes that information includes an active problem the patient has or medication they've received or need to receive. 

If the person has been in custody previously, then they'll have information that's already on the TOMS system, which can include the last med status update from the clinical staff. They're the information I'm aware of. They may have additional information, but that's what I'm aware of. 

MR GRIFFIN:  Are there cases where they don't have any relevant information? 

DR ROWLAND:  If it's their first time coming into custody and they've moved very quickly through the lockup, et cetera, there may be very little that arrives with them, yes. 

MR GRIFFIN:  And in that situation, does the officer rely totally on the self reporting of the person? 

DR ROWLAND:  Probably the officer would, yes. 

MR GRIFFIN:  And you know, from your experience, that self reporting can be highly inaccurate, don't you? 

DR ROWLAND:  Yes. 

MR GRIFFIN:  For what reasons? 

DR ROWLAND:  Lots of reasons. People can not know the information themselves. They can not have understood information. They can use words in a different way, so the language becomes a barrier. They can choose not to provide information, or they can choose to provide alternative information because they believe there's some gain for themselves in that information. They can simply forget. So, they're some of the reasons. Obviously the   to be able to respond to a question, you need to be able to process the question, formulate a reply and articulate that reply and there may be obstructions at any of those points. 

MR GRIFFIN:  After that, the next step is what you describe as the initial health screen conducted by a registered nurse; is that right? 

DR ROWLAND:  Yes. 

MR GRIFFIN:  That's done within 24 hours for adult prisoners and within 12 months for a young person? 

DR ROWLAND:  Yes. 

MR GRIFFIN:  Does that suffer from the same difficulty that if there aren't records, you're relying on the self reporting of the person? 

DR ROWLAND:  Yes, there are challenges, when people come into custody, in obtaining adequate information, which is why we build on it, bit by bit. So, these beginning steps, you begin with what the person is able to tell you and what information you're able to obtain from other sources. So, a typical part of that initial assessment with the nurse is to ask them which services they use in the community, if they're under specialist care, have they been to hospital recently, and then the patients are asked if they would be willing to provide consent for us to obtain information from those providers, which may include their most recent pharmacy, for example. 

So, the nurse will typically fill out multiple consent forms for the hospital, the GP, the pharmacy, et cetera, to obtain that collateral information from the community regarding the health service as soon as   because as part of that initial health screen. Nurses as well, in comparison to officers, are very accustomed to the restrictions and limitations of self report, and they will either ask questions in a variety of ways and can make observations of their own above and beyond what the person self reports. 

MR GRIFFIN:  Use their experience as a registered nurse working in this environment? 

DR ROWLAND:  Yes. 

MR GRIFFIN:  And the third stage, as I understand it, is what's called a doctor admission, which is a process by which an assessment of any person is conducted by a medical practitioner within 90 days of admitted; is that correct? 

DR ROWLAND:  Yes. 

MR GRIFFIN:  That's quite a long time before they would automatically see a doctor. Is there provision for urgent assessment by a medical practitioner in particular cases? 

DR ROWLAND:  Yes, absolutely. So, sometimes they're seen immediately on the day. The doctor on call can be contacted immediately for urgent advice and prescribing, and the nurse can book an appointment immediately, within the week, two weeks. The nurses are allowed to triage the person up to a 90 day maximum, and then there   quite a few people that come into custody are young and have recently been in custody, they're familiar with the health services, they're fit and they're well. They report no acute problems. So the 90 days suits for the person who doesn't have any acute issues and we don't expect to find acute issues, but the nurse can certainly book   

MR GRIFFIN:  I will now ask you some questions about how information is recorded. And you refer in paragraph 13 to the functional impairment screening tool known as FIST. 

DR ROWLAND:  Yes. 

MR GRIFFIN:  Is that designed to particularly identify disabilities or other factors that are particular to a person? 

DR ROWLAND:  Yes. So, information is recorded into the electronic medical records, so a compilation of all that information about the person, and the nurse will document on the template, which there are copies of in the document. The FIST is a particular tool that we've developed, the aim being to screen for impairment   functional impairment   that the person may have, and, from there, move on to do further assessments and delineation of that issue and ensure that appropriate aids or referrals are in place. So, as a screening tool, it's really to identify ‘do we need to look further into this issue for this person’. 

MR GRIFFIN:  The other thing it does, according to your statement at paragraph 15, is it gives you a snapshot of the population within custody as a whole to identify needs for restructured training, et cetera. 

DR ROWLAND:  Yes, so that's our aim is not only to assist the pathway for the individual person to ensure that we're optimising their functional outcomes, their access to services and aids and our understanding of them so we can provide patient centric care, but also so that, from a population wide perspective, we can identify what percentage of people, for example, have a hearing impairment, a vision impairment, cognitive impairment. And that would differ from unit to unit. 

So, where there is a particularly high needs unit, if custodial have access to this information, which has been part of our plan from the very beginning, they will be able to say, well, we have a particular problem in unit 13 with mobility. Do we have the appropriate equipment and mobility aids and assistance in that unit? Perhaps we need to do X, Y, Z. So, we're hoping that with the better   the better informed we are, the better likely we are to be able to target assistance and ensure that other issues such as infrastructure and staff training are appropriate to the needs of the people for whom we're providing a service. 

MR GRIFFIN:  Was FIST developed as a stand alone program in Western Australia or was the tool adopted from one used elsewhere? 

DR ROWLAND:  No, we developed the FIST within our health service here. We looked for appropriate tools that would suit our purpose and we couldn't find an existing tool that suited our purpose that met all the aims, and we decided to implement our own with the expectation that, as a screening tool, you would then move on to narrow into and look in more depth into an area, say, for example, difficulties with daily living and self care - our single scoring points for self care will be followed up with the three page OT activities of daily living standardised form which is used for    assessments, et cetera. So, we would use this as a springboard to know that we need to do further assessment for this person in that area. 

MR GRIFFIN:  Based on your experience to date, what triggers applying the FIST screening tool to an inmate or a detainee, and what percentage of the custodial population are put through that screening? 

DR ROWLAND:  So we introduced   we implemented in our staff to complete the form just over 12 months ago now and of course, since then, we've had COVID, so that has interrupted it slightly. Currently we have 28 percent of the population, as of a couple of days ago, had been screened and some sites are up to 80 percent of the population have had that screening done. The   we're asking staff to complete it as soon after reception as is appropriate because it's not always appropriate the minute they walk through the door when everything's unstable. It's embedded into the doctor's admission template, so if it hasn't been prior to the doctor's admission, the doctor is expected to complete it. 

And we also aim to have it repeated annually, as part of the annual health review done by nursing staff, if not done as part of a care plan visit, et cetera, as well as if there's a significant change in the health services of the person that the FIST would be refreshed and would updated to their current status. We also   currently our primary health care nurses and doctors are the   who are completing the form, but we are hopeful that Allied Health services, including the mental health team, would also be very keen to participate and to update these forms when they see the need.  As we collaborated with them in the development of the form, the intention is for it to be broadly available. 

MR GRIFFIN:  Just coming back to my question in part, I inquired as to what triggers someone being put through that screen. 

DR ROWLAND:  So, the trigger is admission. So, coming into custody is a trigger. The doctor's admission is a trigger.  It's embedded in that annual health review would be a trigger and the changing health status would be a trigger. 

MR GRIFFIN:  So, in paragraph 26 when you say:

‘By August 2022, 22 percent of the prison population had been screened’.

I think that figure's now 28, you said. 

DR ROWLAND:  Yes. 

MR GRIFFIN:  Does that mean you're screening everybody who goes into prison or you're selecting certain people on the basis of the nurse's assessment?

DR ROWLAND:  We're asking staff and we're encouraging and promoting it that everyone is screened, even if there is no impairment is noted, because otherwise we don't have valid data and we can't tell how valid our data is unless it's across the board. We don't know who we're missing. When I've looked at the data in the past myself and looked at percentage for ethnicity, for example, the percentage of patients screened that were Indigenous   the percentage of Indigenous patients screened was the same as the percentage of the non Indigenous screened. The screening did seem to have occurred preferentially for older people versus younger people at that point in time. But, remember, this is still in the implementation phase, and 28 per cent across the board indicates we still have   you know, we still need to embed it in routine practice for staff to get up to across the board high percentages. Some sites have achieved high percentage.

MR GRIFFIN:  Given the fact that you're heading towards screening one third of the adult prison population, are the results so far indicating that the previous approach of initial screening was not particularly effective? 

DR ROWLAND:  This does   this screening does things that our previous processes weren't able to do in terms of giving us a broad overview of what our problems are, and also being able to report in a way that's readily accessible into such as if the person has mild visual impairment but they're okay if they wear glasses or they have mild cognitive impairment. You wouldn't normally add a diagnosis. The problem is the distinction in health records between diagnosis and function, so   

MR GRIFFIN:  I understand that, Doctor, but my particular question, if I can interrupt, is, based on the information from nearly one third of adult prisoners, are you now being more targeted and efficient in identifying conditions than you were under the previous system and, if so, by what factor? 

DR ROWLAND:  So to give   answer that, you would have needed to do a QA of the files to compare it, which we haven't done, but because diagnoses don't capture functional impairment, my assumption is that because we're now particularly documenting functional impairment that this will be an improvement.  It should be an improvement. 

MR GRIFFIN:  Of the nearly one third that you've screened of adult prisoners, what are the results showing in terms of disabilities being revealed in that cohort? 

DR ROWLAND:  Yes, so we're already seeing that different populations have different types of impairments and the spread varies. So, the remand prisons have a higher rate of   appear to have a higher rate of disturbance in the mental and psychosocial and behaviour issues, and chronic disease is a heavy burden for impacting on their function. We're generally seeing, I would take a guess, at mild hearing impairment between sort of one and three percent, similarly for mild visual adjustment impairment. But, you know, because that difference in population groups and 28 percent is not a majority percentage, we're waiting until we have better quality spread before we pin too much on it. 

MR GRIFFIN:  Thank you.  You've given a figure for the screening thus far of adult prisoners. What's the level of screening of detainees in Banksia? 

DR ROWLAND:  The screening in the detention centre had been much lower.  The staff there hadn't   we've recently sent   in the last month sent out additional encouragement and prompts for staff to attempt to do more screening, and I have seen an upsurge in the number done there but not a high percentage just yet. 

MR GRIFFIN:  Why is that? 

DR ROWLAND:  Because implementation of any change takes time and energy and, as I said, COVID has been interrupted over the last 12 months and staffing levels in the nursing at Banksia have been particularly hit hard in the last year. And so if there are smaller staff numbers, you prioritise urgent care and acute needs and tasks such as completing forms, et cetera, become less of a priority and fall off. And change requires time and energy. So, if this is something new then they will continue doing what they've done before until you get encouragement. But, with encouragement, they are taking it up. We're hoping this will be a big improvement there as well. 

MR GRIFFIN:  Doctor, based on your current information, when do you expect Corrections to reach a level of 100 per cent screening of adult prisoners and youth detainees? 

DR ROWLAND:  There would be so many variables. 100 per cent is unlikely because of the high turnover and disturbance, so 95 percent would be great. 

MR GRIFFIN:  Yes. 

DR ROWLAND:  And maintaining that annually, so there will be a difference between those who've ever had a screen versus those who have maintained it and it's up to date in the last 12 months, which will be one of the markers we will look for.  I would hope we will see significant improvement in the next 12 months, and at the rate that we're improving now, hopefully we would get to 80 percent at most sites within the first quarter next year, maybe. 

MR GRIFFIN:  Is one of the advantages of the FIST screening tool that it enables the identification of people that might be eligible for the NDIS? 

DR ROWLAND:  Yes, because it particularly focuses people's mind and staff minds on where is this person at and what are their challenges, which can then lead to, now, what do I need to do about it. So, having something that particularly focuses on function impairment and challenges, it assists that next step. 

MR GRIFFIN:  You also highlight in paragraph 32 a second gap which requires resourcing is the need to validate the FIST as being a reliable marker of impairment. 

DR ROWLAND:  Yes. 

MR GRIFFIN:  And validate the consistency between users. Can you explain to the Commissioners in a little more detail what would be required, to validate to a scientific level, those matters? 

DR ROWLAND:  Yes, so the validation study is a common sort of study that is done on new screening tools or questionnaires, et cetera. So, I haven't run any of those studies myself, but, essentially, you would have different providers assessing the same person and not knowing what the other person has scored them, so, you would look for consistency across providers. You would often benchmark against that existing tool or existing tools to see whether it is equivalent or as good as. 

And you would look at whether or not it had real importance and real value as in, if you measure a score of moderate impairment, does it actually have a real life application. So, it's meaningful information, not just meaningless numbers. So, they would be the three components I would imagine the study would look at. 

MR GRIFFIN:  Who would conduct that study? 

DR ROWLAND:  Well, I've reached out to WACSAR, which is the Western Australian Community Service research division, and asked if they would have the resources to be able to provide it and I've also   because I meet with other clinicians across the country and there's interest from other jurisdictions, someone gave me a name of people who are interested in University of New South Wales and if WACSAR aren't able to do it I intend to reach out to them and ask if they would run the validation tool through them. 

MR GRIFFIN:  Have the Department indicated they will meet the cost of such validation studies?

DR ROWLAND:  No. 

MR GRIFFIN:  Have you asked them?

DR ROWLAND:  I haven't sent them a business case, but I've reached out, as I said, to WACSAR and hopefully they would    

MR GRIFFIN:  Commissioners, I intend to move on to another topic, if there's any questions arising from what has just been discussed.

CHAIR:  I'll ask Commissioners Mason or McEwin if they have any questions. 

COMMISSIONER MASON:  Yes, thank you, Chair.  I have a question about the FIST assessment tool. Thank you for the information that you provided, Dr Rowland, on this new assessment tool that's been brought in, on my understanding, in November last year. And that is an improvement on collection of data done previously. In your statement at paragraph 15, you say there that:

    ‘The aim of the FIST is twofold:  The screening and assessment of function, and then there's the opportunity to get a snapshot of the population   the prison population as a whole to identify a need for restructure, training, required for staff and planning for future resources’.

Prior to FIST being introduced, particularly in relation to those with disabilities in the prison system in Western Australia, what was the tool, or the avenue to gather information for those particular aspects of restructure, training and planning for future resources for people with disabilities? 

DR ROWLAND:  It's similar to the document that you received with the data from our department. We were limited to people registered with NDIS or with Disability Services Alert and to diagnoses as a proxy measure of likely impairment without severity or percentage, and to our informal knowledge and what we were able to provide as our observational   observations of what was required, which I have had opportunity in the past in some of the reviews the Department has done to discuss how high needs in chronic disease, mobility impairment, hearing, et cetera, and what infrastructure may assist. So, it was informal and the hope with this is it will provide a much more robust data to assist. 

COMMISSIONER MASON:  I think in your evidence today you mentioned the word or the words of the FIST being a better springboard for further assessments. 

DR ROWLAND:  Yes. 

COMMISSIONER MASON:  Can you describe in lay terms   I'm not a medical person   what that means now for those are incarcerated and what that springboard means for a wider group of people now because of this new assessment tool, in terms of the way that those supports potentially in the future are being provided to them? 

DR ROWLAND:  Yes. So, for example, if you did the assessment and notice someone is   when you did the cognitive impairment, you scored them as a two, which meant they had moderate impairment and it was impacting on their function and their relationships and communication, you could move from that single score of two, which is limited, to performing a KICA Cog, which is the Kimberley Indigenous cognitive assessment tool.

Or you could do the MMSE, which is the other standard in   which I understand is the next screening tool which will give you a score out of 30 which is commonly used   or 39 for the KICA Cog   and from there identify, yes, this person does have a significant impairment and I need to consider, you know, do I need a full dementia screening, do they need an ACAT assessment, do we need to assess the cause of this impairment, and if they were a much younger person, I wonder what the cause of this is and do I refer to   do I refer that person for, hopefully, a neurocognitive assessment or to the psychological health service to look at it or SBS to look at their behaviour or education. 

So, it prompts staff to say ‘we have an issue here’, and exactly what is the issue. Is there anything remedial that we can provide from health services? What tools or assistance is required to optimise their function and minimise their distress and assist their engagement? And that may be other validated tools that are specific to that item or can be referral to a specialist such as, if you tick two on hearing, you're referred to audiology or ENT to see if that person would meet the criteria of 70 decibels and whether they would be assisted with hearing aids or surgery for the tympanic membrane or whatever the cause of that impairment is. 

So it’s multifaceted. It's really   I guess the aim is, it makes you thinks about it so then you're more likely to do something about it and you consider the person as a whole and you consider them and what they want to achieve in life and what quality of life and what their functional impairments are, it aids people to think in that way and that's the first step to behaving. 

COMMISSIONER MASON:  Dr Rowland, it’s very encouraging to hear that for a First Nations person incarcerated, if information comes out through this FIST assessment tool, that there's either an understanding of resources in the First Nations community such as the Kimberley Medical Service that can be used because we want culturally safe assessments and tools.  The last question I have, Mr Griffin, is   to Dr Rowland - is about the timeliness of young people in Banksia Hill getting assessments. Given just your evidence now and the incredible value of providing these assessments and the interventions, and you talked about the first quarter of next year. Can there be something more firmer put in place to make sure these assessments are done for these young people, given the significant number of Aboriginal children in Banksia Hill?  Thank you. 

DR ROWLAND:  Yes, very happy to push the detection, and we have some other programs and activity to try to improve our assessment of the youth in detention and audiology assessments, et cetera, and I believe it will have a good response to the encouragement we've already provided. 

COMMISSIONER MASON:  Thank you.

CHAIR:  Commissioner McEwin, do you have any questions at this point. 

COMMISSIONER McEWIN:  Thank you, Chair. Yes, one question for Dr Rowland. That relates to the interaction of the disabled person with, you know, the doctor or the medical staff. So, for example, in the doctor admission that you referred to in paragraph 13, do you know if, say, for example, a person with cognitive or intellectual disability is provided with communication support when they are interacting with the doctor or medical staff if you know that they've been identified as having such a disability before they arrive at the Corrective Services? Do you   how does that work? 

DR ROWLAND:  Yes. 

MR GRIFFIN:  Doctor, before you answer that question, I've been asked by the Auslan interpreters whether you can simply slow down a little bit in your answers. Their task is made much more difficult if we don't speak both clearly and in a much more measured pace. No criticism. It happens in every hearing. 

DR ROWLAND:  Apologies. Yes, so   sorry, before the piece about slowing down, I've just forgotten what that question. 

COMMISSIONER McEWIN:  I hope I'm not guilty of talking too fast for the interpreters. So, essentially, I want to know what, if any, communication support in the actual interaction with the medical staff is, say, a person with intellectual or cognitive disability. Can you just give me a picture of how that happens? 

DR ROWLAND:  There are a lot of barriers to good communication that health service providers would be familiar with from their years of experience. So, these would include not only sensory impairments, processing, communication issues and their understanding, language issues, not only different languages but different use of common terms, and their ability to communicate and express themselves. So, typical adjustments that you would make would be to speak slower, to use simple language, to use visual prompts and aids, to use body language, and to allow them time to express themselves and take effort to understand what works for them in terms of communication. 

So, I'm familiar with that process myself, having worked as a clinician for a long time, and I've also seen my colleagues and I've seen nursing staff use those techniques and work with the person in a patient centric way of showing respect, gaining rapport and ensuring that communication is occurring in both perception and understanding and listening well. So, those are skills that we encourage.  They're part of codes of ethics. They're part of the RACGP accreditation, that it's patient centric, that you communicate, that it's collaborative decision making. You can't have collaborative decision making if you haven't first ensured you have good communication. 

So, that culture of ensuring you have good communication is something we strongly encourage and is embedded in our policy. In terms of specific assistance for people with impairment, apart from using visual aids   and we've often got models so models of the heart and models of the knee, et cetera, in clinics that we can pull out and actually show and demonstrate exactly what we're talking about   if they need a family member or a carer that is within the facility, we can make arrangements and ask to see two at once in more of that yarning family style so they have that assistance where that is possible.

CHAIR:  Thank you. Yes. 

COMMISSIONER McEWIN:  Okay. Thank you. Sorry. Just to be very clear, then, so with all those tools that you mentioned, just to be clear, and the doctor admission, if a person does need a communication support worker with them, that will be provided at the time of the doctor admission? 

DR ROWLAND:  If it hasn't been identified but it was required beforehand, then the doctor will do what they can in terms of what is achievable and can book a second or third visit to complete it. It's often the case that we can't complete the whole assessment in one sitting because of the limited resources. We allocate 40 minutes now for that assessment. 40 minutes is often not sufficient to complete the whole aim, and so, you start it then and sequentially over time. But we can access interpreters on the phone pretty much immediately for most people, if we identify it to be an actual language error. 

COMMISSIONER McEWIN:  Thank you for that.

CHAIR:  Yes, Mr Griffin. 

MR GRIFFIN:  Dr Rowland, there are no specialist designated disability units in Western Australian prisons, according to your statement? 

DR ROWLAND:  Yes. 

MR GRIFFIN:  When you have somebody with severe non physical disabilities, what options are available to you as a health service for their care? 

DR ROWLAND:  So, non physical disabilities are a broad   a broad group you describe there. But accommodation decisions are worked out in conjunction with custodial staff. So, we identify what the components of the accommodation that they require might be. So, that might be that they need, you know, bottom bunk or they need a carer with them in the room or they need a bathroom with ability to provide assistance. We would then discuss with custodial to say which accommodation unit would best suit them, where those needs can best be met and the person is most comfortable. Often that relates to where their family is and where they feel they have their social supports and where the person is most comfortable and familiar.

MR GRIFFIN:  What if they need to be hospitalised or the equivalent thereof?

DR ROWLAND:  Yes, so, we have access to hospitals by referral.  But if, for example, someone has very high needs, we identify what those needs are and we try to accommodate them in the infirmary. So, we have managed people with quadriplegia and paraplegia. We've managed people with ventricular assistant devices. We have managed people who require assistance with all activities of daily living and severe respiratory disease, et cetera. 

MR GRIFFIN:  Dr Rowland, perhaps my question wasn't clear. I'm looking at the non physical disability. People with really severe mental disabilities of one sort or another. Now, you can deal with them in prison or the detention unit, but if there are more severe case, what are your options outside for their care? 

DR ROWLAND:  Well, I'm not aware of us having any    prisoners in long term external accommodation purely for non physical needs. With people with severe intellectual impairment as, for example, if that's what you're referring to, would often be linked with a carer who is   who would spend all day as their second person assisting them to navigate the daily routine of the prison system and assisting them with self care or care of their room, et cetera. So, those sorts of support processes are put in place in conjunction with custodial.

MR GRIFFIN:  What about if they're at risk of self harm? 

DR ROWLAND:  So we have the ARMS process, the At Risk Management System. So, if someone is at risk of self harm as an acute basis, they'll be on the ARMS system, with   which has the multidisciplinary assessments and the    committee to assess that risk and make decisions about accommodation. If they are chronically at risk and vulnerable, we have the SAMS system which is the Support and Monitoring System, which ensures that they have additional monitoring and attention, and they will have regular interaction with psychological health services to just check their welfare and make sure they're travelling okay. 

We also have the Aboriginal Visitor Scheme which is an external service which enables that   again, that supportive contact to ensure that someone is travelling okay on a regular basis if they are recognised as being vulnerable. 

MR GRIFFIN:  In paragraph 57 of JR1 you say, and I quote:

    ‘The minimum standard for provision of health services to people in custody is the concept of community equivalence. A minimum standard is the standard in the community’.

That's the fundamental principle your section works to, isn't it? 

DR ROWLAND:  That's what we're held to. I would like to provide higher than the community, because community has often failed people that end up in our system and this is a particular opportunity we have, a unique opportunity to assist people who have fallen through the gaps. But in terms of what we're funded for and what we're held to officially by the government, it's this concept of community equivalence which we, as I say, strive for that and beyond where we can get   where we can. 

MR GRIFFIN:  Based on your observations during your four and a half years, is this minimum standard being met for prisoners and detainees with disability? 

DR ROWLAND:  I think it varies. I think often we do manage to achieve better than the community and we've had such statements made in the Coroner's Court after assessing our care for people, that they have agreed that the care some individuals have received has been above and beyond what they would have received in the community, particularly if they've been in the infirmly with high needs. But I'm sure that there will be examples and there will be individuals for whom, despite our best intentions, for one reason or another, we have not reached the standard that I would like and that we would be aiming for and   

MR GRIFFIN:  In what areas have, in your view, you failed to meet the standard set out in paragraph 57? 

DR ROWLAND:  I think there are areas from patients who have some of the mental health conditions such as personality disorders and et cetera where it's a struggle to provide a therapeutic environment and to provide the counselling services   the chronic PTSD, the childhood complex PTSD where that therapeutic environment, therapeutic counselling, wrap around care to assist them is challenging and more challenging than it would be in the community, partly because of resourcing and limited resources for that, but also just the nature and infrastructure of a prison environment and how, for someone with complex PTSD, childhood challenges, et cetera, it's difficult to make the prison environment a therapeutic environment. 

MR GRIFFIN:  Indeed, a prison environment and a detention environment are self evidently not a good therapeutic environment. That's correct, isn't it? 

DR ROWLAND:  Currently, you know, and   

MR GRIFFIN:  So, consequently, if you want to have equivalence with the community, would you look to having that prisoner or detainee placed in an acute involuntary psychiatric treatment place? 

DR ROWLAND:  No, not for those long term conditions that are met because the acute inpatient psychiatric facilities are reserved for people who require a Form 1 are acute   severe distress.

MR GRIFFIN:  And I want to focus on those people for a moment because I'm conscious of the time. If you have a prisoner or a detainee that is assessed as being acute, involuntary psychiatric category. 

DR ROWLAND:  Yes. 

MR GRIFFIN:  What options do you have available to you in Western Australia? 

DR ROWLAND:  If there is not a bed in the Frankland Unit, then we need to manage them in the prison and they will be managed often under ARMS because of that risk, often in a CCU bed or high dependency unit where they can receive that frequent observation and they will be seen by the mental health team and the psychological health services as part of that ongoing care. 

MR GRIFFIN:  Let me go back a stage. Where's the Frankland Unit, and how many beds does it have? And how many beds of the total would be available to Corrective Services? 

DR ROWLAND:  So, the Frankland is a forensic mental health unit, so it has 30 beds. But the mixture for people that require the forensic beds is made up of people on hospital orders, so they're not actually been   I'm sure you lawyers, you're more familiar with hospital orders than I am. So it would be a mixture of people on hospital orders and people who have come from custody. That number is inadequate for our demand and has been for quite some time. 

MR GRIFFIN:  When you say ‘for quite some time’, have there ever, in your experience of four and a half years, been adequate external beds available for that category of prisoner or detainee? 

DR ROWLAND:  No. 

MR GRIFFIN:  Does that then throw back upon you and your team trying to treat those people within the custodial setting? 

DR ROWLAND:  Yes, it has significant flow on effects within the prison system. 

MR GRIFFIN:  What barriers do you experience in your team when trying to provide adequate treatment within a custodial setting for those people?

DR ROWLAND:  So prisons are not a therapeutic environment.  Assisting people to calm and reduce their distress is difficult with the infrastructure that   whereas a Frankland Unit is staffed by mental health professionals fully and they're surrounded by them all day. They get intermittent interaction. In the prison environment, we aren't able to provide non consensual treatment, which is able under legislation to be provided in the Frankland Unit. So, they're potentially missing out on medication which could help them but can't be provided without their consent unless they're in a unit such as Frankland. 

MR GRIFFIN:  Just pausing there, is that the first barrier you confront, that inability to do what can be done in the Frankland Unit in relation to medication and other things? 

DR ROWLAND:  Yes, I think   we can't be a Frankland Unit within the prison space, yes. 

MR GRIFFIN:  Does that result in prisoners or detainees frequently being placed in isolation? 

DR ROWLAND:  It does contribute to isolation because of the ARMS and the risks to self and the infrastructure required to protect them from themselves or protect other people from them if they're acutely distressed or violent and aggressive, et cetera, so that, yes, they will spend more time in seclusion because they can't be admitted to Frankland.

MR GRIFFIN:  And if they're placed in seclusion, in your experience, does that increase the chance of self harm or other deterioration in their condition? 

DR ROWLAND:  Well, it's not therapeutic, and without the relief of distress that might be possible within Frankland, their distress will continue longer and potentially be more severe because they remain in the prison system. 

MR GRIFFIN:  And when you use the term ‘their distress will continue’, is it fair to say what you're saying is their condition will deteriorate in that environment? 

DR ROWLAND:  Yes, it can deteriorate. Some people do improve and they can be removed from the Form 1A prior to and having never received treatment, that they will improve and receive treatment, but for some, yes, their condition can deteriorate or be exacerbated or continue. 

MR GRIFFIN:  And I mean no criticism in this question: doesn't that mean that you can't meet a community standard because of the barriers you've identified for that cohort of prisoners or detainees? 

DR ROWLAND:  So, mental health patients are a particularly challenging group to meet their needs because of their challenges, and Frankland is definitely a challenge.

CHAIR:  And that will include, won't it, some detainees who are on remand and who have not yet been convicted of any criminal offence? 

DR ROWLAND:  Yes. And if they're not given a hospital order as part of the assessments in court, which is often   which is often achieved, if they're on remand but they don't get a hospital order but they are on forms, then, yes, they are impacted by the Frankland problem.

CHAIR:  Thank you. 

MR GRIFFIN:  Isn't another consequence of what you've said that a prisoner or a detainee will effectively remain untreated if they can't be put in a specialist place? 

DR ROWLAND:  If they continue to decline treatment and not provide consent, yes, their treatment is pending that involuntary treatment that can be provided at Frankland. 

MR GRIFFIN:  And so if they are on remand, they're there for whatever reasons the court has determined, if they're sentenced, the sentence is to deprive them of their liberty. What's happening to these people, I suggest to you, Dr Rowland   and, once again, I don't criticise you   is they're suffering a further punishment; that is a deterioration in their mental health because they can't be adequately treated. Do you agree with that proposition? 

DR ROWLAND:  I agree that it's detrimental to not have access to Frankland, absolutely, yes. 

MR GRIFFIN:  Well, do you agree with the proposition that in that scenario, they suffer a further punishment in that their condition deteriorates because they can't receive the treatment they would receive in Frankland? 

DR ROWLAND:  It's a further consequence. A lot of these people also have difficulties accessing services in the community. So, there is a bed shortage even for people that are not in custody, in mental health beds. So, often they've ended up in our service because they were unable to access appropriate services in the community as well, so, again, it's not just confined within our walls. It's a broader problem.

CHAIR:  I don't think that was the question Mr Griffin was asking. Perhaps I might ask Mr Griffin to ask the question again, and if you wouldn't mind attending to the specific question and then give us your answer? 

MR GRIFFIN:  I think I was putting the proposition   I don't have a transcript   that the effect of them not being able to be put in a place such as Frankland is that they receive a second punishment, that is, their condition deteriorates because you're not able to provide the treatment that they would otherwise be entitled to? 

DR ROWLAND:  In terms of use of the word ‘punishment’, punishment implies that it's a direct or intentional consequence to negative behaviour in the aim of   

MR GRIFFIN:  Let me substitute the word punishment with disadvantage. 

DR ROWLAND:  Yes, a negative consequence. Yes, there's a negative consequence that they will access care, but it's not punitive on our behalf.  In fact, a lot of effort has gone to support them, and a lot of distress is felt by staff and vicarious trauma in trying to do their best with inadequate resources. 

MR GRIFFIN:  Have you raised with the Department concerns relating to what we've been discussing in the last 10 minutes and how difficult it makes it for your staff to do their job? 

DR ROWLAND:  Yes, these concerns have been raised not only by myself but by the psychiatrists, by the Mental Health Commissioner where there have been documents produced in WA about the plan going forward for the mental health care WA. I don't think there's anyone denying that Frankland Unit is too small at any level of government. 

MR GRIFFIN:  Are you aware of any current plan to rectify that situation? 

DR ROWLAND:  Yes, I've heard of various but there is a long term plan to provide more beds and build a new building, but as to the development, where they're up to, I don't have personal information as to the current plan or timing. 

MR GRIFFIN:  Well, can I ask rhetorically, Dr Rowland, what happens to the people in the interim whilst this plan wanders its way around the landscape?

DR ROWLAND:  Yes, and as I said, staff experience distress and these conversations have gone around in circles for a long time, and I've been present at meetings where they've been raised. The Department of Health is aware, the Ministers are aware, documents have been written. It's something I witness. It's not something I have control over. 

MR GRIFFIN:  Have you had discussions with any Aboriginal community organisations or medical services as to how they might assist in relation to those in custody with a First Nations background? 

DR ROWLAND:  The Department of Justice has a mental health AOD division, and they employ Aboriginal mental health workers as part of their team, some additional members of their multidisciplinary team that has come on board. So, as far as possible, particularly if the Mental Health Act requires us to do so, but just for general common sense anyway, there are now Aboriginal mental health workers who also work with the Aboriginal Visitors Scheme for patients who we believe would benefit from, you know, a visit or interaction because we have concerns about their health or access to health or the    whether or not they're willing to access care.

CHAIR:  Dr Rowland, I wonder again if you wouldn't mind attending to Mr Griffin's question and answer it directly. I'll ask Mr Griffin to ask you again or perhaps I can do it directly from the transcript. The question was: have you had discussions   have you had discussions with any Aboriginal community organisations or medical services as to how they might assist in relation to those in custody with a First Nations background? 

DR ROWLAND:  No, I have not had those conversations. 

MR GRIFFIN:  When you use the term ‘AOD’, that's alcohol, other drugs; is that correct? 

DR ROWLAND:  Yes. 

MR GRIFFIN:  Thank you. In paragraph 86 of JR1, you were asked:

    ‘Are you involved in a development which is referred to as a trauma informed model of care?’

And you answered, ‘No’.  Firstly, do you understand, in broad terms, what a trauma informed model of care is? And, secondly, can you explain why you haven't been consulted in respect of that? 

DR ROWLAND:  So, I do understand trauma informed care. It's something I became aware of prior to my arriving in the Department and something I've explored. You have a copy of my CV. I have attended ethical training specifically to do with trauma informed care. The concept of trauma informed correctional care is something that I have brought to the Department's attention in the past, and we have put trauma informed care in our health descriptions and model of care for some time. 

The   I was aware that the Department was putting in place education processes and the Department itself put trauma informed care in the women's model of care document some years ago, so I was aware that they were proceeding with following that process. I'm aware that there's training for the Youth Custodial Officers. So, I believe the Department is aware of trauma informed care, that they're proceeding with it, they're appealing to appropriate specialists. I'd be very happy to be involved but obviously they haven't felt the need to involve me directly. 

MR GRIFFIN:  Do you know why you haven't been involved, given your extensive and pertinent experience? 

DR ROWLAND:  I don't know. But we have a Director of Health Services and then there's an Assistant Deputy    et cetera, so, I’m buried a little bit in the structure of the Department and that's potentially why. 

MR GRIFFIN:  But you are aware that this model of care was recommended by the Inspector of Custodial Services in Report 141 of March this year? 

DR ROWLAND:  I wasn't aware of that specifically but I knew that we were already making moves around trauma informed care in the women's space and in youth detention and, as I said, in our health model. We've arranged for education for our general practitioners in trauma informed care well before March 2022. So, had I been aware of it, I would have been supportive and not surprised but, no, I wasn't personally aware of that recommendation. 

MR GRIFFIN:  Dr Rowland, I note the time. They are the questions I want to ask you, but can you wait a moment to see if the Commissioners have any questions. 

CHAIR:  Yes, thank you. Commissioner Mason, do you have any further questions? 

COMMISSIONER MASON:  No, thank you, Chair.

CHAIR:  Commissioner McEwin?

COMMISSIONER McEWIN:  No. Thank you.

CHAIR:  Dr Rowland, thank you very much for your evidence today and for the information you've provided in writing through your statements and responses to the questions asked by the Royal Commission. We appreciate your assistance on the important issues that have been raised at this hearing. Thank you. 

DR ROWLAND:  Thank you very much for this opportunity. 

<THE WITNESS WITHDREW 

CHAIR:  Mr Griffin, do we now take a break of, let us say, it's now   I have to do some arithmetic here   seven minutes past 10, more or less, in Western Australia. Shall we resume at 25 past 10? 

MR GRIFFIN:  Thank you, Chair. 

ADJOURNED 10.07 AM 

RESUMED 10.26 AM

CHAIR:  Yes, Mr Griffin. 

MR GRIFFIN:  Chair and Commissioners, I call Wade Reid and Dr Angela Cooney to give evidence. I understand they've both made affirmations.

<WADE REID, AFFIRMED
<ANGELA COONEY, AFFIRMED

CHAIR:  Yes. Thank you very much. Mr Reid and Dr Cooney, thank you very much for coming to the Royal Commission remotely in order to give evidence. I will explain where everybody is located, just in case you don't know. We have Commissioner Mason and Commissioner McEwin in Adelaide joining the hearing remotely. I am in the Sydney hearing room. Mr Griffin, Senior Counsel Assisting the Royal Commission is also, in the Sydney hearing room, and I shall ask him to ask you some questions. So, thank you very much for coming, and now Mr Griffin will ask you some questions. 

MR GRIFFIN:  Chair and Commissioners, can I indicate that Mr Reid is the Superintendent of Banksia Hill Detention Centre. He's provided a statement for this Public hearing dated 10 September 2022, identifier STAT.0631.0001.0001. The statement is in hearing bundle C.1 at tab 36. The attachment, entitled WR1, in response to a statement for information, WA NTG 00019. The attachments appear at tabs 37 to 47. 

Can I indicate that Dr Angela Cooney is the Deputy Superintendent, Rehabilitation and Reintegration at Banksia Hill Detention Centre. She's not provided a statement. She appears because Mr Reid states in paragraph 1 of his statement Dr Cooney has provided him with advice and information in relation to responses to most of the questions in the notice which was addressed to him. 

Can I start with you, Mr Reid. How long have you been the Superintendent of Banksia Hill Detention Centre? 

MR REID:  Since 1 November 2021. 

MR GRIFFIN:  And prior to that, were you the Superintendent at seven different prisons in Western Australia? 

MR REID:  I have been over a period of time, yes. 

MR GRIFFIN:  And prior to working in Western Australia, were you working elsewhere in Corrections? 

MR REID:  Only in Western Australia. 

MR GRIFFIN:  Only Western Australia, for the past 32 years? 

MR REID:  Just over 32 years, yes. 

MR GRIFFIN:  Dr Cooney, can you give the Commissioners a very brief outline of your background? 

DR COONEY:  Yes. So, I'm a registered psychologist with endorsement in forensic psychology. I started with the Department in 2006 as a psychologist and have held various positions in the Department or in the justice sector since that time. In   immediately prior to being the Deputy Superintendent, I was the Principal Psychologist in Youth Justice for a period of about two years. I was asked to go into the Deputy Superintendent role in November 2021, and I've been in this role since. 

MR GRIFFIN:  What does the title Rehabilitation and Reintegration involve? 

DR COONEY:  I essentially oversee and coordinate all of the various services at Banksia Hill who contribute to rehabilitation and reintegration. That would include education, case planning   although the psychology and health teams don't report to me, I support them on site to ensure that they   like, they're operationally supported and that we have sufficient coverage provided at the centre. 

MR GRIFFIN:  How do you measure your success or otherwise in relation to rehabilitation of detainees? 

DR COONEY:  It's not something that we actively do at Banksia Hill, per se. There's obviously statistics which show the percentage of young people that would return to custody. For us, in the short amount of time I've been in the role, we've really been focusing on direct feedback from the young people. So, we've created a Youth Leadership Council where the young people provide us feedback about the services that we are providing and whether they feel that their needs be being met, and we also work closely with Youth Justice and Community to try and support through care as much as possible. 

MR GRIFFIN:  Did I understand you that, despite the fact your title is Rehabilitation and Reintegration, you don't actually focus on rehabilitation? 

DR COONEY:  So, no, we do focus on rehabilitation. So, a lot of the programs that we provide are focused specifically on rehabilitation. So, we use the model   or essentially all of our services are provided in line with the Risk Need Responsivity model, which is one of the   the leading models on rehabilitation. So, everything that we do, we kind of   we think through that lens of the Risk Need Responsivity model. 

MR GRIFFIN:  So, in simple English, what does a Risk Need model entail? 

DR COONEY:  So, it was a model developed over many years by a number of researchers, and essentially, in summary, what it says is that in order to be effective in rehabilitation, you need to focus your intervention on what we call criminogenic needs. So, you need to target the right need essentially. If your targeted needs that are not related to offending behaviour, then that's not going to reduce the risk. And the other element of the model is that your more intensive resources need to be targeted at your higher risk offenders. And low risk offenders should actually be diverted from the system as much as possible. 

MR GRIFFIN:  So, thank you for that explanation. You apply that model in your work? 

DR COONEY:  Yes, we do. 

MR GRIFFIN:  How do you measure the success of the work you do based upon that model? 

DR COONEY:  So, individual programs would have pre- and post-test measures.  For example, some of our programs that focus specifically on criminogenic needs. So, we have a number of those programs out there. So, you can see if an individual program is working. But, overall, it's probably looking at re offending rates. 

MR GRIFFIN:  I'm a simple man. What does criminogenic mean? 

DR COONEY:  Sorry. So, that's essentially the needs that we know relate to offending behaviour. So, for instance, self esteem. People might think a target treatment at self esteem, but we know that that doesn't reduce offending. So, essentially criminogenic needs are needs that have been identified through research as directly correlating to risk of re offending. 

MR GRIFFIN:  Can I take you that you would never use that term when talking to a detainee? 

DR COONEY:  Definitely not, and I wouldn't use it in talking to staff either. 

MR GRIFFIN:  So, I want to press you on this issue. You applied this model. You've explained in some little detail about how you do it. How do you determine whether it's working or not with the detainees? 

DR COONEY:  So, like I say, part of it is feedback from the young people. So, are the services that we're providing sufficiently engaging. Part of it is individual programs having outcome measures. And then part of it is looking at re offending rates. 

MR GRIFFIN:  Are part of those services, education programs? 

DR COONEY:  Yes. 

MR GRIFFIN:  What education programs do you currently have operating in Banksia? 

DR COONEY:  So, we've got a school that caters for all the young people in Banksia Hill. They're focused predominantly on literacy and numeracy. They do an assessment whenever a young person is admitted to determine what level of functioning of literacy and numeracy that young person has, and then the school   the education program that's then provided to them is tailored towards their level of function. In addition to that, we also provide various vocational kind of courses. So, that can be things like a barista course. There's a hairdressing salon. There's   the other example just slipped my mind, but, yeah, we provide both a combination of literacy and numeracy and then also vocational type of courses.

MR GRIFFIN:  Do I understand that school is compulsory for all detainees? 

DR COONEY:  Yes. 

MR GRIFFIN:  What happens with detainees who are in isolation? 

DR COONEY:  So they should still be provided school in   on a one on one basis, or in small classes. The teachers will attend the units that the young person is based in.

MR GRIFFIN:  You said they should be provided. Are they provided with education for each and every day they're in isolation? 

DR COONEY:  So, there's been some challenges with that due to staffing, which I think Mr Reid will cover in depth. But it is the intention to provide it to them, but due to some staffing and operational issues, sometimes that's not possible. 

MR GRIFFIN:  So, in this hearing when I hear the word ‘challenges’, do I take it that it hasn't happened? 

DR COONEY:  I would say there have been periods of times where young people haven't received education, due to the staffing issues.

CHAIR:  Would you say they are long periods of time? 

DR COONEY:  I would say it's intermittent, because every morning we essentially assess the level of staffing and what we can provide on the day. So, it would be intermittent rather than a prolonged period of time. So, it might be one or two days here or there, rather than it consistently being an issue. 

MR GRIFFIN:  Does it follow from that, that the person in isolation would have to be taught at their own pace because other detainees not in isolation would be moving ahead in the course whilst it wasn't available to them? 

DR COONEY:  So, everyone's taught at their own pace. So, the teachers   the classrooms are really small and it's an individualised approach. So, you can have people in the same classroom who are operating at slightly different levels and require individual focus. So, the teachers are really skilled at adjusting as required. 

MR GRIFFIN:  Mr Reid, can I come to you. You outlined in your statement the physical layout of Banksia, having nine general living units, eight for boys, one for girls; that's correct? 

MR REID:  Correct. 

MR GRIFFIN:  There's an intensive support unit, known as the ISU, which has four wings, A, B, C and D. 

MR REID:  Intensive Supervision Unit, yes. 

MR GRIFFIN:  There are multipurpose cells in B wing that are a last resort option for immediate short term placement of detainees as an immediate response to an incident. In simple English, what does that mean? 

MR REID:  Those rooms are used for those detainees at their most acute level of risk and given the highest levels of observation. 

MR GRIFFIN:  And, typically, what are you observing for? 

MR REID:  The safety and security of the individual detainee. 

MR GRIFFIN:  Does that mean that those people typically are at risk of self harm? 

MR REID:  Quite often they can be in that environment, yes. 

MR GRIFFIN:  Did you hear the evidence of Dr Rowland? 

MR REID:  Yes. 

MR GRIFFIN:  When somebody is at high risk of self harm or experiencing an acute psychiatric event, how can you treat those detainees within Banksia if Frankland is not available? 

MR REID:  They are generally managed, if they are at acute level of risk to themselves, on the At Risk Management System. If they are at that acute level of risk, they will be in B wing and they will be in observation. An interim management plan which involves a multidisciplinary team will decide the placement and the supports or interventions that that individual needs. And they will be monitored depending on which level of ARMS that they are on. 

MR GRIFFIN:  That involves watching them. Is there any active treatment provided to them? 

MR REID:  Yes, there is interventions from health and/or psychological services and sometimes other services, depending on the circumstances of the individual detainee. 

MR GRIFFIN:  Is your experience the same as Dr Rowland, that, on occasions, detainees that ought, on medical grounds, be in Frankland, aren't able to be transferred because of the unavailability of beds? 

MR REID:  The advice and observation that I have is that the health facility with the acronym EMYU, E M Y U, we've had very good capability of getting detainees, that need that mental health placement    

MR GRIFFIN:  Well, does that mean on every occasion, if it's determined somebody was experiencing an acute event, they were able to be housed at Frankland?

MR REID:   They're not housed at Frankland. They're housed in Bentley at EMYU. 

MR GRIFFIN:  So on each occasion somebody fit in that category was able to be moved from Banksia to either of those places or were there occasions when they had to remain at Banksia? 

MR REID:  My experience is that where those acute psychiatric issues have occurred, we have a good relationship with EMYU and we've had assistance from the Mental Health Advocacy Support Unit.  Where they've been assessed as requiring to be moved, that has occurred. 

MR GRIFFIN:  Without exception? 

MR REID:  That's my understanding. 

MR GRIFFIN:  Well, on what basis do you have that view? 

MR REID:  On my experience as being placed in Banksia since 1 November.

CHAIR:  Have you had discussions Dr Rowland about that issue?

MR REID:  I haven't had discussions with Dr Rowland. However, I do discuss with my staff on site and I am appraised of when people with mental health issues need to be referred to another facility, and I'm acutely aware of those when they occur.

CHAIR:  Having listened to Dr Rowland's evidence, you appreciate that your perception is not her perception, don't you? 

MR REID:  In relation to juvenile detainees, that's my response.

CHAIR:  What is your response? 

MR REID:  That where juvenile detainees require movement to a mental health facility, we have a good relationship with EMYU, with the assistance of the Mental Health Advocacy Unit and generally those placements are occurring.

CHAIR:  Wouldn't Dr Rowland be precisely the person you should consult about this to get the best information? 

MR REID:  If we were not getting   I think there might be a mix up there. I'm referring to EMYU, not transfer to Frankland. 

MR GRIFFIN:  Can I interrupt for a moment, Mr Reid. Is EMYU   and is that E M Y U?

MR REID:  That's correct. 

MR GRIFFIN:  Is that a 12 bed in patient service? 

MR REID:  Can you answer that for me. 

DR COONEY:  Yes, that's East Metropolitan Youth Unit. It's the youth version of Frankland. So Frankland is only for adults, and EMYU is the option for young people. 

MR GRIFFIN:  And who runs EMYU?

DR COONEY:  Department of Health. 

MR GRIFFIN:  And where is it located? 

DR COONEY:  In Bentley, I believe. 

MR GRIFFIN:  And is it your experience, Dr Cooney, if you have knowledge of this, that any of the detainee that required the services of EMYU was able to be placed in that facility. 

DR COONEY:  Yes, certainly over the last 12 months, Mr Reid and I have had   there was one young person where there was a delay because of lack of bed availability, but we got support from the Mental Health Advocacy Service and that admission was facilitated within a week, I believe, from memory. But all of the other young people who required admissions, it's happened in quite a timely manner. 

MR GRIFFIN:  Mr Reid, in addition to Banksia Hill, there's also Unit 18 at Casuarina Prison? 

MR REID:  Yes. 

MR GRIFFIN:  That, I understand, was gazetted on 13 July 2022 as a young offenders detention centre on a temporary basis for 12 months. 

MR REID:  Correct. 

MR GRIFFIN:  That was a decision taken by Dr Tomison? 

MR REID:  Correct. 

MR GRIFFIN:  And I understand on 20 July 2022, 17 detainees were moved from Banksia Hill to Unit 18; is that correct? 

MR REID:  Correct. 

MR GRIFFIN:  Now, Doctor   I think that's said to be in response to recent challenges at Banksia Hill, including young people escaping from their cells. Were you involved in the decision to make that transfer with Dr Tomison? 

MR REID:  I would have been involved in supplying information in relation to the state of Banksia at the time of that decision making. 

MR GRIFFIN:  And to clarify, your official position is Commissioner; correct?

MR REID:  Superintendent, Banksia Hill. 

MR GRIFFIN:  Sorry, Superintendent. And in relation to Banksia matters, do you liaise with the Commissioner for Corrective Service, Mr Reynolds, or Dr Tomison or both? 

MR REID:  My direct line reporting is   generally has recently has been to the Deputy Commissioner Ms Christine Ginbey.

MR GRIFFIN:  She's Deputy to Mr Reynolds; is that right? 

MR REID:  That's correct. 

MR GRIFFIN:  And Mr Reynolds has a delegation from Dr Tomison in his role as Commissioner; do you understand that to be correct? 

MR REID:  Yes. 

MR GRIFFIN:  So, your main dealings are with the Deputy, not with the Commissioner? 

MR REID:  That's correct. 

MR GRIFFIN:  In your discussions with the Deputy Commissioner, what factors were taken into account in considering moving detainees from Banksia unit to Casuarina? 

MR REID:  The situation from my time of arriving at Banksia had evolved. When I first arrived, 1 November 2021, we had challenges predominantly in relation to staffing and the rate of incidents within the facility. However, as we came into early 2022, the nature of the incidents within Banksia had changed and provided a greater threat to the safety and security of Banksia, namely, the rate of assault on staff, but particularly the ability to contain detainees within their accommodation during the day and the night. 

So, to provide a safe environment and to recover Banksia Hill and provide safety and security for detainees and staff, the information was discussed that it was an option that needed to be considered for alternative placement for those detainees which presented the highest level of risk. 

MR GRIFFIN:  In respect to staffing of Banksia, I understand from a response provided to the Royal Commission that the Department of Justice doesn't apply staff ratios to Banksia Hill or Unit 18; is that correct? 

MR REID:  There is a ratio, I understand, at the moment. It might be eight to one. But they're based on functionality. 

MR GRIFFIN:  Where do we find that ratio in a document? 

MR REID:  I can't answer that. 

MR GRIFFIN:  Where did you get that information from? 

MR REID:  Previous conversation. 

MR GRIFFIN:  With? 

MR REID:  With the ex Deputy Commissioner, Mr Andrew Beck. 

MR GRIFFIN:  And how long ago was that conversation? 

MR REID:  Several months ago because in the   considering the whole range of issues that needed to be addressed for Banksia Hill, the staffing is obviously something that needs to be looked at and there will be best practice across Australia, and in those conversations the   I recall conversations as being that the ratio would be roughly eight to one at Banksia. 

MR GRIFFIN:  Eight staff members to one detainee? 

MR REID:  No, the other way around. 

MR GRIFFIN:  One staff member to eight detainees? 

MR REID:  That's correct. 

MR GRIFFIN:  Let me try and clarify that. In August of this year, the average daily detainee number in Banksia was 74, according to your statement; is that correct? 

MR REID:  Sorry, repeat the date, please? 

MR GRIFFIN:  In August 2022, the average detainee number in Banksia was 74? 

MR REID:  Okay. 

MR GRIFFIN:  Do you agree? 

MR REID:  It may have been. It's slightly higher at the moment. It sounds like   

MR GRIFFIN:  No, I said in August '22, when your statement was made. Do you have your statement in front of you? 

MR REID:  I do. 

MR GRIFFIN:  Could you turn to paragraph 62, and that's in WR1, which is the notice. Do you have that in front of you? 

MR REID:  Yes, I do. 

MR GRIFFIN:  The heading is ‘Staff Ratios and ISU Policy’. The question asked is:

    ‘What is the current ratio of staff to detainee in the ISU? What is the current ratio of staff to detainee in the detention centre generally?’

You can see that? 

MR REID:  Yes. 

MR GRIFFIN:  Paragraph 62, the response:

‘The Department of Justice does not apply staffing ratios at Banksia Hill or Unit 18’.

We've just covered that. Paragraph 63:

    ‘The average number of detainees at Banksia Hill in August 2022 was 74, and the average daily staff number at Banksia Hill for this month was about 105’.

Where did that information come from? 

MR REID:  I can't recall how that information was supplied. 

MR GRIFFIN:  Well, you're the author of this document, are you not? 

MR REID:  That's correct. 

MR GRIFFIN:  Well, try and   

MR REID:  It's been some time since the creation of that document. 

MR GRIFFIN:  The document is dated 10 September? 

MR REID:  Yes. 

MR GRIFFIN:  That's only a matter of weeks ago. 

MR REID:  That's correct. 

MR GRIFFIN:  Where did you get that information from? 

MR REID:  I cannot recall the source of that information. However, the number of staff does not refer to the average daily number of staff   of custodial staff specifically in that sentence. There's a large range of other staff on site. 

MR GRIFFIN:  I'm sure there is and I'm going to come to that, because I'm trying to understand. And to try and make the process easier, Mr Reid, I'm trying to work out on an average day in Banksia, how many people are working there and how many people are they taking care of? I know it varies. 

MR REID:  Yes. 

MR GRIFFIN:  Without going through all the detail at this point, are you able to say, as of today, how many detainees you have at Banksia? 

MR REID:  Yes, I have roughly 83 detainees at Banksia today and 10 at Unit 18. 

MR GRIFFIN:  So, a total of 93 between the two locations? 

MR REID:  Roughly, yes. 

MR GRIFFIN:  How many staff members work currently on a weekly basis at Banksia? 

MR REID:  Recently we've been averaging roughly 30 to 35 staff per day. Sometimes that number can be higher, sometimes it can be lower. Monday to Friday, there will be a large number of public servants additional to the YCOs that carry out a range of functions such as the management of the facility, case management, visits and so forth. 

MR GRIFFIN:  And how many of your staff are working at Unit 18? 

MR REID:  Today, there is a total of roughly 10 staff, but that will include YCOs and some prison officers. And then there's the management team and support services to complement that. 

MR GRIFFIN:  Right. How many boots on the ground currently are there on an average day at Banksia and at Unit 18? 

MR REID:  It varies but at the moment, we have numbers of roughly 30 to 35 per day at Banksia, and up to roughly 10 at Unit 18. 

MR GRIFFIN:  And of those 30 to 35, what are the job designations of those people? How do you group them?

MR REID:  Every morning an appraisal of the staffing situation is made from the operational leads. We have requirement to meet obligations to get detainees to and from court and provide regional escorts. We have requirements to man the entry building and the front gate and the security service in that area. We have all of the accommodation areas that I already referred to. We have the official visits area, and visit areas - they need to be staffed to maintain those functions. And a range of other services on site. 

MR GRIFFIN:  Would it be accurate for me to say that 30 to 35 are custodial staff, is that an accurate description. 

MR REID:  Yes. 

MR GRIFFIN:  So, of the custodial staff there appears to be a ratio of one to three. 

MR REID:  That's because   when we're talking about   as it mentions in my statement, the Department doesn't officially apply staffing ratios at Banksia Hill. 

MR GRIFFIN:  I'm applying one doing simple arithmetic of saying roughly 90 detainees in Banksia and between 30 and 35 custodial staff. That would suggest a ratio of one to three, correct? 

MR REID:  No, not in relation to detainee-facing roles. As I mentioned, there's a wide range of roles across the facility. For example, if you took the staffing for the escorts and the recovery positions and the front gate and a whole range of other positions that are within the site, not all of those roles are detainee-facing. 

MR GRIFFIN:  Yes. I understand when you use the term ‘detainee-facing’, but they're all custodial staff of one sort or another, whether they be manning a gate or dealing with a detainee; correct? 

MR REID:  They are. 

MR GRIFFIN:  So, assume today we have 35 people working at Banksia. What other staff members are there on an average day and what do they do? 

MR REID:  Well, you have the management team itself which oversees the operational and strategic management of the facility. 

MR GRIFFIN:  How many in that group? 

MR REID:  Roughly eight. 

MR GRIFFIN:  Okay. Next group? 

MR REID:  There is the security unit, which has a security manager and four or five security staff which overlook security processes, procedures, intelligence. 

MR GRIFFIN:  So, five or six? 

MR REID:  Roughly, yes. 

MR GRIFFIN:  Next group? 

MR REID:  You would have some staff that are involved in looking after the accommodation units, and the number that are managing the accommodation units can vary greatly depending on the availability of staff. However, we always try and maximise that. 

MR GRIFFIN:  So how many on an average day would that be? 

MR REID:  It can vary greatly but between senior officers, managers and YCOs, it might be up to, on a good day, 20. 

MR GRIFFIN:  Okay. Next category? 

MR REID:  We man areas such as official visits and social visits, and we also man education. So, not all of those staff are static. In the morning, the detainees are woken up, or they awake and they go through their morning routine. But as you already heard through the evidence they are required to go to education and to programs, so largely the staff move with those detainees and provide a wide range of services across the site. 

MR GRIFFIN:  On average, how many of those people on a day? 

MR REID:  If we have a full complement, there's six staff that are involved in internal escorting. There would be a couple   there would be three or four staff involved in relation to supervising visits and official visits, and there would be staff almost always positioned within the Intensive Supervision Unit. 

MR GRIFFIN:  How many of those? 

MR REID:  So, the admissions unit, the admissions unit has a range of duties, not only in relation to admissions but work that surrounds that, so there would be roughly three staff in the admissions area at any one time as well. 

MR GRIFFIN:  Any other groups of staff? What about people teaching? 

MR REID:  There is a range of teachers on site, yes, that's correct, which doesn't come into the YCO complement. However, the YCOs provide supervision to the education area while education of the detainees is occurring. 

MR GRIFFIN:  Who pays for the teachers? 

MR REID:  Department of Justice. 

MR GRIFFIN:  Alright. How many of those on average?

MR REID:  Have you got the number? 

DR COONEY:  Yes, it's approximately about 20, I believe. 

MR GRIFFIN:  Okay. Health staff? 

DR COONEY:  Yes, so we have health staff on site, typically two nurses during the day and one nurse on overnight shift. Got a psychiatrist who attends the centre half a day a week. Got a dentist who I believe attend once a week or once a fortnight, and a GP. Then we've got the psychological   sorry, and mental health, there's a mental health nurse as well    services. Then we've got the psychology team. So, we're allocated a 6.6 full time equivalent for the psychology team. There's the case planning team where we've got four case management or senior case managers, a coordinator of programs and the manager of case planning. 

We've got four Aboriginal youth support officers, and that's been extended to eight. We're just undergoing the recruitment for that now. Then we've got other services that kind of do in reach, so we've got a chaplain, which is essentially one FTE, and some mentor services. 

MR GRIFFIN:  Can I approach it this way: how many people does the Department of Justice pay on an average day, weekday, to attend Banksia to do all these different roles? 

MR REID:  If we had a full complement every   

MR GRIFFIN:  No, first up tell me how many on average currently and then I'll move to what the ideal would be. 

MR REID:  If   if you're talking about YCOs currently, we are getting 30 to 35 staff roughly attending per day and then we have roughly 40 public servants on site per day, Monday to Friday. 

MR GRIFFIN:  Thank you. Now, based on your experience, either Mr Reid or Dr Cooney, how many should you have in order to run Banksia in a way that you believe it should be run? 

MR REID:  A full staffing complement for YCOs is 65. 

MR GRIFFIN:  Right. 

MR REID:  And we have on most days a full number of public servants in relation to the FTE that we have there. 

MR GRIFFIN:  So, in respect of Youth Custodial Officers, you're at about half what it should be? 

MR REID:  On some days, yes. 

MR GRIFFIN:  As a consequence of that, that, I presume, limits the ability to provide detainees with opportunities to engage in various activities; is that correct? 

MR REID:  It does make it challenging. 

MR GRIFFIN:  Well, it makes it more than challenging. It makes it impossible on some days, doesn't it? 

MR REID:  Well, we make it work. I've got some statistics since 20 July in relation to the services that we provide there and the impact of moving the most acute detainees out and the increase in services that we provide and the decrease in critical incidents. 

MR GRIFFIN:  I'll come to that in due course, the question of moving to Casuarina, but as it currently stands, in relation to Youth Custody Officers, you appear to be, on average, working at about half the ideal number? 

MR REID:  It can be on some occasions, yes. 

MR GRIFFIN:  Well, there's no occasion when 65 turn up, is there? 

MR REID:  No, but there is occasions where we've been over 40 as well. 

MR GRIFFIN:  Over 40 is still a long way from 65.

MR REID:  Regardless of the number, we concentrate every morning on providing education and manning all the essential services for detainees at Banksia. 

MR GRIFFIN:  Is it the same situation in relation to Unit 18, that the number of staff   and I won't go through the numbers with you   is less than you would ideally like? 

MR REID:  That's not correct. 

MR GRIFFIN:  You're happy with the staffing at Unit 18? 

MR REID:  Well, at the moment, managing both facilities as Superintendent, I have to spread my staff over both sites, making sure on a daily basis that Unit 18 is prioritised. 

MR GRIFFIN:  And so, as the manager of both facilities, you choose to give preference to Unit 18 in terms of staffing; is that right? 

MR REID:  I wouldn't use the word ‘preference’. However, Unit 18 has some acute needs and it's important that the needs of those detainees are met.  Because those detainees are at Unit 18, Banksia has become a more settled environment and I'm able to provide education and a range of other services, such as programs and daily routine, more routinely than I could previously. 

MR GRIFFIN:  When I say you give preference, you indulge, I suggest to you, in a triaging process of working out where you believe those staff would be best utilised? 

MR REID:  There's a designated number of staff which would be a full complement at Unit 18, and wherever possible we maximise those numbers and maintain the security and safety of both sites. 

MR GRIFFIN:  During your time as Superintendent of Banksia, what has been the turnover rate of staff on an annual basis? 

MR REID:  In relation to Youth Custodial Officers specifically, to the middle of October, there is 61 new staff have been trained during this year, calendar year, and there's been 47 staff that would have either resigned or retired. 

MR GRIFFIN:  But prior to this year, what was the situation? The reason I ask this question, Mr Reid   it's not attempting to trap you. It's just that a number of statements we've received, both from families and from government witnesses, constantly refer to staff shortage as an explanation for certain things. So, I'm trying to get clarity as to exactly what the dimensions of the staff shortage are. And one of the factors has been suggested that there's a very high attrition rate of people working within Banksia. So, you've told me how many you trained, 65 new staff trained this year. 

CHAIR:  61, I think. 

MR GRIFFIN:  61, sorry. And I think you said 47 have retired. 

MR REID:  From October, yes. 

MR GRIFFIN:  What about prior to 2022? What was the turnover rate of Custodial Officers?

MR REID:  I don't have that information available to me. As mentioned, I was there since 1 November last year.

CHAIR:  When you said that 47 had retired or resigned, that's not 47 out of the 61. That's 47 of a complement of the officers in   who held positions? 

MR REID:  That's correct, yes.

CHAIR:  Yes. Alright. Thank you. 

MR GRIFFIN:  You also, indicate in your statement some information in relation to detainees with disabilities at paragraph 20:

‘As of 30 August 2022, 33 detainees, all boys, had disabilities. 26 were First Nations’.

That's correct? 

MR REID:  Yes. 

MR GRIFFIN:  Would that mean that over a third of the average number of detainees in Banksia had disabilities which had been identified? 

MR REID:  That's my understanding, yes. 

MR GRIFFIN:  And that nearly 80 percent of detainees at Banksia are First Nations young people? 

MR REID:  Yes, it can fluctuate, but it's quite often 70 percent or higher. 

MR GRIFFIN:  Do you know what the youth population of Western Australia is, as split between First Nations and non First Nations young people? 

MR REID:  No. 

MR GRIFFIN:  Do you know, Dr Cooney? 

DR COONEY:  No, I don't, but I know that we've got a significant over representation of First Nations people in Banksia Hill. 

MR GRIFFIN:  In designing the programs you're involved with, Dr Cooney, do you take into account the gross over representation of First Nations young people? 

DR COONEY:  We do, so all the programs that we source or provide comes from a lens of cultural appropriateness and also targeting or applicable and appropriate for young people with significant impairments in one or more domains. 

MR GRIFFIN:  And do you bring in First Nations people from outside to assist in any of those programs?

DR COONEY:  We do intend as much as we can. So, we've got a number of programs that are provided by Aboriginal controlled organisations, but also we've got a number of staff on site as well who provide assistance. So, these people are like the Aboriginal youth support officers and AVS, the Aboriginal Visitors Scheme as well, and some visiting Elders. 

MR GRIFFIN:  Can I presume that the Aboriginal youth support officers and Aboriginal Visitors Scheme people are First Nations people? 

DR COONEY:  Yes. 

MR GRIFFIN:  What percentage of the rest of the staff working at Banksia are First Nations? 

DR COONEY:  I don't have that statistic. 

MR GRIFFIN:  Do you know, Mr Reid? 

MR REID:  I don't have the statistic with me today but we do have a representation of First Nations staff, yes, in the custodial roles and across the site.

MR GRIFFIN:  Well, I won't hold you to a figure, but what's your best guess as to the number of First Nations people amongst Banksia staff? 

MR REID:  If it's in the entirety of all staff, I'll make a guess and I'll say 10 percent. 

MR GRIFFIN:  And how many of those are in senior management at Banksia? 

MR REID:  None at this stage. 

MR GRIFFIN:  Do you regard that as an issue that needs to be addressed, given the fact that 80 percent of your detainees are from that group? 

MR REID:  Representation in relation to First Nations is important, and that's why we have dedicated roles such as the Aboriginal youth support officers and, which is amplified in the fact that that service is about to be doubled in relation to its staffing members.

CHAIR:  I wonder if you'd be good enough to answer Mr Griffin's question. Do you regard that as an issue that needs to be addressed, given the fact that 80 percent of your detainees are from that group and the issue was the proportion that are in senior management, and your answer was none? So that's the issue you were asked to comment on. 

MR REID:  That's correct and positions in senior management are going through a process of application and interview, and if they're not a 50D position, it's open for the best applicant to get is that role. Do I think it's a good thing for people from First Nations to be in senior management roles? Absolutely. 

MR GRIFFIN:  Do you accept the proposition, Mr Reid, that perhaps a more specific approach would be needed to be taken to breach this apparent ceiling which results in no First Nations people being in senior management, as has been done in the general community in many areas?

MR REID:  The Department of Justice has a policy in relation to First Nations people and employment. That's my understanding. 

MR GRIFFIN:  Yes. I know they've got a policy, but in respect of the question I'm asking, it doesn't appear to have had any success. And I'm asking you   I think you've said appointment is based on merit; correct? 

MR REID:  That's correct. 

MR GRIFFIN:  If that process hasn't to date produced any First Nations senior managers within Banksia, what steps could be taken to redress that imbalance? 

MR REID:  I think the identification of that issue up first is an important thing, as you're identifying, and considering that in the process of whether, in the management structure, a position needs to be specifically made to be 50D to complement that. 

MR GRIFFIN:  Do you accept that, as a general observation, change is assisted if people can see people like themselves in positions of authority? If one of your 80 percent of Aboriginal detainees could see an Aboriginal person in management, that could have a significant effect upon the unit. Do you accept that proposition? 

MR REID:  Yes, I do. 

MR GRIFFIN:  And do you say it's a matter for the Department and its programs to deal with that, that there's nothing you can do at your level?

MR REID:  I obviously have input into the chain of management structure at Banksia. And  

MR GRIFFIN:  You do, but how do you have input? What have you said and to whom have you said it? 

MR REID:  Well, I'm aware that there's three and a half million dollars being committed by the state government to expand the Aboriginal youth service, and I think that's a great opportunity for Banksia to employ those First Nations people into that role and look at how my management structure works with that increase in staffing. 

MR GRIFFIN:  Would another approach be to upgrade a designation of existing First Nations workers within Banksia? 

MR REID:  Yes. 

MR GRIFFIN:  Including upgrading a position into a management level position? 

MR REID:  Yes, that's correct. 

MR GRIFFIN:  Well, would you support such an approach? 

MR REID:  Absolutely. 

MR GRIFFIN:  Have you suggested that approach in the past? 

MR REID:  Yes. 

MR GRIFFIN:  What happened to your suggestion and to whom did you make it? 

MR REID:  Well, at the moment, the funding that is being supplied is for an additional Aboriginal youth support officers, not for a management role at this stage. 

COMMISSIONER MASON:  Mr Griffin, ask a question, thank you. I just wanted to ask a question   you might not be able to give it now   around the attrition rate of First Nations employees within Banksia Hill and for a period of time   and I know that you've started in November last year, but what is that attrition turnover rate, given you mentioned around 10 percent is the workforce? I also understand, through my previous experiences, that having senior positions in management which have a male and a female First Nations person working together, so not just a single person but two significant leaders in management, is also critically important, particularly if you have both young men and young women, young children who are male and female. So, that idea of culturally safe leadership   your feedback on that idea or if that's been considered in the past? 

MR REID:  It has been in general discussion in the time that I've been there. It has not been implemented yet, but I support the concept, yes. In relation to the earlier part of your question, on what might be the attrition rate, I don't have percentages for attrition rate of the First Nations staff; however, I'm cognisant that there is several YCOs in particular that have been in the job, some up to 25 years, and over a very   a fairly good representation of people who've maintained themselves since the opening of Banksia. 

COMMISSIONER MASON:  Thank you. Just one final question:  often in workplaces, Mr Reid, exit interviews are voluntary. Is that the case there in Banksia? 

MR REID:  It is, but we do go through and get information in relation to exit interviews and provide data to my directorate into reasons people have supplied where they have left our workforce. 

COMMISSIONER MASON:  And obviously that includes the First Nations employees that we're talking about now? 

MR REID:  Yes, they would be in that mix, yes. 

COMMISSIONER MASON:  Thanks very much. 

MR GRIFFIN:  Can I come back to you, Dr Cooney. You mentioned in an earlier answer that what you do is done through a lens of cultural appropriateness. Do you recall that? 

DR COONEY:  Yes, that's what we attempt, yes. 

MR GRIFFIN:  What does that mean in practice? 

DR COONEY:  Basically, we're looking for programs that are culturally appropriate and also programs that help foster cultural identity for the young people. So, some of the programs that we've had in the last year, for example, we had our Noongar language program that was facilitated on a number of occasions. We've had some programs that involve music and dance, like the didgeridoo, et cetera. But then also things like the Aboriginal Rangers program comes in.  So, essentially, we try and target specifically cultural identity but then also all of the development of our programs is   the programs are developed bearing in mind that people may come from diverse backgrounds. 

MR GRIFFIN:  And what do you understand the term ‘cultural safety’ to mean in relation to a First Nations child, particularly one with disability? 

DR COONEY:  So, my understanding would be that, essentially, the culture   the cultural identity of that young person is supported and encouraged and fostered. 

MR GRIFFIN:  And are you trying to build that cultural competency and safety within staff members at Banksia?

DR COONEY:  We are, yes. 

MR GRIFFIN:  Would not that be enhanced if there were more First Nations people employed at senior levels within Banksia? 

DR COONEY:  Yes, most definitely. 

MR GRIFFIN:  Because you would accept, would you not, that there's a distinction between running programs on the one hand and what the detainees see and experience every hour of every day whilst they're there?

DR COONEY:  Yes, and what Mr Reid   Mr Reid has touched on it. There's been a lot of work done over the last 12 months to try and bolster some of those supports but also positions. So, like I said earlier, we have had four Aboriginal youth support officer positions, and we've received funding for an additional four, as well as some Aboriginal mental health and health staff. So, that was all committed by Treasury and through those discussions, we're still in the process of developing what the management structure for that Aboriginal unit will be. But part of that has been a consideration, like Mr Reid said, of having a specific management position that will oversee those positions and, I guess, cultural activities across the site. 

MR GRIFFIN:  When can we expect to see that position created? 

DR COONEY:  There's   the discussions are ongoing. We started recruiting for the Aboriginal youth support officer positions, those additional four, and we're in the process of working out what the best model is for the health positions, whether that's hiring staff, for instance, or using external health organisations. In terms of the management role, that's probably a question not for me. I'm not sure where we're at with that right now. 

MR GRIFFIN:  Who do you understand is ultimately responsible for making that decision? 

MR REID:  I can make business cases as Superintendent through the Women and Young People Directorate to be considered above that by Commissioner or Director General. 

MR GRIFFIN:  So would Mr Reynolds be in a position to make that decision, for example? 

MR REID:  The delegation for the creation of new positions may sit with the Director General or the Commissioner. I can't recall exactly. 

MR GRIFFIN:  So, they're questions I can direct to Mr Reynolds or Dr Tomison? 

MR REID:  Correct. However, I am able to make business cases in relation to the site if I feel that there's a need for something, and I do on occasion, yes. 

MR GRIFFIN:  Have you made a business case to your superiors for the inclusion of First Nations people in the senior management of the unit? 

MR REID:  Because we're at the stage of recruiting Aboriginal youth support officers and that process needs to occur, I have entered into, at this stage, verbal discussions to discuss how we can get the best outcomes for First Nations people, how those positions relate to the existing management structure and/or do they need an additional management structure within Banksia to complement plan   business plan and measure the outcomes for First Nations people in Banksia. 

MR GRIFFIN:  I appreciate your answer, Mr Reid, but is the answer to my question, no, you haven't made a business case for an Aboriginal person to be in senior management? 

MR REID:  No, I haven't.  I   

MR GRIFFIN:  When can I expect you to  

CHAIR:  Sorry, Mr Reid wanted to add something.  Yes, Mr Reid. 

MR REID:  I have heard verbal conversations floating that idea. It's obvious that it needs support above my position. 

CHAIR:  Mr Reid, do you happen to know what the operating surplus was for Western Australia's budget in 2021/22? 

MR REID:  I've heard it in the media. However, I don't recall any figures.

CHAIR:  Does the figure of $5.7 billion refresh your memory? 

MR REID:  As I said, I don't recall an exact figure but I'm aware there was a surplus.

CHAIR:  I think you can take it from me based upon a document produced by the Western Australian government that it was, in fact, 5.7 billion, and in 2022/23, 1.6 billion surplus is expected. 

MR REID:  Mm hmm.

CHAIR:  Yes. 

MR GRIFFIN:  You indicate in paragraph 49 of your statement, Mr Reid, that there is no dedicated Banksia Hill policy for the support and treatment of detainees with disability and cognitive impairment. But you go on to say that there are various policies that touch on this issue. Upon reflection, do you think there should be a specific policy dealing with those issues?

MR REID:  Yes. Policy can be a good thing if policy carries out effective function. I need to ensure, from my perspective as someone who manages that detention centre operationally, that all of my processes identify, wherever possible, any disabilities and refer to appropriate services and have either appropriate services on site or in-reaching or that they connect with community youth justice services. 

MR GRIFFIN:  So, do you support the creation of a dedicated Banksia Hill policy for the support and treatment of detainees with a disability and cognitive impairment? 

MR REID:  I'm not sure that's a question that is one that I should be answering. For me, as an operational person running Banksia Hill, I have operational functions to carry out. If that policy would complement my operational efficiency, then the answer would be yes. 

MR GRIFFIN:  Well, it wouldn't hamper it, would it? 

MR REID:  Depends on the content, but I don't expect any policy to hamper. 

MR GRIFFIN:  Well, if you have a policy that currently hampers your ability to do your job, you would tell people about that, wouldn't you? 

MR REID:  A policy, to my understanding, is always developed with best intent and outcomes. 

MR GRIFFIN:  Can I ask you, Dr Cooney, the same question: would you be assisted in your work by a dedicated policy of that type? 

DR COONEY:  I had a similar reflection as I was putting together the information for the hearing, in that I had to look at multiple documents to find the information, so to have it all in one location seems to me that it would make sense. 

MR GRIFFIN:  It makes sense because if somebody has a single document they can go to, there is a greater chance that they will be able to understand and implement it, isn't there? 

DR COONEY:  I believe so, yes. 

MR GRIFFIN:  It would, in fact, I suggest to you, increase operational efficiency, would it not? 

DR COONEY:  Yes. And I think it would assist us in identifying any gaps that we may have as well. 

MR GRIFFIN:  Can I ask you about the training of staff working at Banksia Hill in respect to identifying and dealing with people with disability. First to you, Mr Reid, what particular training, if any, is provided to people coming in to work in the unit? 

MR REID:  Particular training, sorry, did you say in relation to disability or generally? 

MR GRIFFIN:  Disability. 

MR REID:  As per the response in my statement, item 47   actually, beginning at 46, it deals with a Module 1 that talks about what is a disability and covers the types of disability and how to identify someone with an intellectual disability, a cognitive impairment. Then it goes over communication modules that relate to that, breaking into 47 which talks about trauma informed care, and then it's got a wide range of tension points that follow on from there. 

MR GRIFFIN:  But the training in relation to disability awareness occurs at the Corrective Services Academy; correct? 

MR REID:  Yes. 

MR GRIFFIN:  And that's limited to three hours? 

MR REID:  There is a three hour module, yes. 

MR GRIFFIN:  There's no provision for updating that training once somebody comes and starts work; is that correct? 

MR REID:  Not necessarily. We have a range of training that we provide on site, almost every week at Banksia Hill, predominantly on Friday mornings and we are just right now actually developing a training needs analysis. So, staff have ongoing training in relation to a whole range of things at Banksia after they've arrived. 

MR GRIFFIN:  But if you take someone that applies to work at Banksia, and they go through the Academy training, they might be coming from zero understanding of disability and then they're given three hours and away they go; that's right, isn't it? 

MR REID:  There is other training in relation to specifically FASD. There's quite a wide range in the suite of training that is ongoing. 

MR GRIFFIN:  So, is there anything you want to add to what's outlined in your statement as to training? 

MR REID:  No, I think it's quite comprehensive in there. 

MR GRIFFIN:  Dr Cooney, is there any training that currently isn't provided that you think would be useful for the work you undertake?

CHAIR:  Training to   

MR GRIFFIN:  Training staff, I should say. 

DR COONEY:  I think a lot of the additional training. So, there's the original training packages, but then there's a lot of specialists who work on site, and through consultation around individual young people, we find that there's a lot of information sharing there, and that can really bolster the operational staff understanding about disabilities and the application of strategies around that. So, I think more capacity for those staff to provide that increased consultation rather than a formalised training package, I think, is where we see the most benefit. 

MR GRIFFIN:  Training provided by the Corrective Services Academy, is that always face to face? 

DR COONEY:  Yes, I believe so. Yes. 

MR REID:  It is, yes. 

MR GRIFFIN:  And I take it that training within Banksia is face to face. 

DR COONEY:  Yes. 

MR REID:  Yes. 

MR GRIFFIN:  What do you do to satisfy yourself that people attending training within Banksia understand what you're attempting to teach them? 

DR COONEY:  Well, each of the training packages would have skills activities as outlined in the statement from Mr Reid. So, there's typically kind of mini tests of learning along the way and the application of the knowledge. It's not   all of these trainings are not lecture format. It is really more about application of knowledge. 

MR GRIFFIN:  And is the training we're referring to within Banksia, is that compulsory for staff members? 

DR COONEY:  Yes. 

MR GRIFFIN:  In every case. 

DR COONEY:  If they're listed to attend training, the expectation is they attend the training, yes. 

MR GRIFFIN:  Who decides who should attend the training?

MR REID:  We have a Training Senior Officer who conducts a schedule of training and they keep records of staff   staff training records, identify those who need to do a particular area. 

MR GRIFFIN:  So a Custodial Youth Officer is the equivalent of a Custodial Officer in the prison; is that right? 

MR REID:  A training coordinator on site. 

MR GRIFFIN:  No, I understand that, but if you employ at Banksia a Custodial Youth Officer, a CYO, is that right? 

MR REID:  YCO, yes.

MR GRIFFIN:  YCO, a Youth Custodial Officer, do they have the same general role as a custodial prison officer in a prison? 

MR REID:  They're different roles and it has different training. 

MR GRIFFIN:  Okay. So, what training is mandatory for your Custodial Officers in Banksia? 

MR REID:  It's an extremely large suite of training. We go across things in relation to use of force, and deescalation, but I'd be rattling off a list which I can't recall all of and probably over 20 and up to 30 different areas of curriculum. 

MR GRIFFIN:  Can I just finally deal with the transfer to Unit 18. Seventeen detainees were transferred initially. 

MR REID:  Correct. 

MR GRIFFIN:  Is my understanding correct that some of those didn't come back to Banksia because they were otherwise released from Unit 18? 

MR REID:  There has been some detainees that were domiciled in Unit 18 who have been released. 

MR GRIFFIN:  Yes. 

MR REID:  There has also   however, when they are going to be released, they're brought back to Banksia on that day to facilitate that release, and there has been some detainees that have returned to Banksia successfully and some unsuccessfully. 

MR GRIFFIN:  But the numbers at Unit 18 suggests that there are new detainees being transferred to Unit 18 that weren't part of the original group of 17; that's correct, isn't it? 

MR REID:  Sometimes that is the case, yes.  As of today, my understanding is that there's 10 detainees at Unit 18. 

MR GRIFFIN:  And of those 10 in Unit 18 today, how many of those were part of the original 17? 

MR REID:  I don't recall that number off the top of my head but detainees are assessed for consideration for transfer to Unit 18, as they   generally because they provide   they are presenting as a significant risk in relation to the security and safety of detainees and staff at Banksia Hill. 

MR GRIFFIN:  I want to explore that idea that they're a significant risk to other detainees and staff. Who makes that assessment? 

MR REID:  I have case planning staff that will develop that assessment and the approval for that sits in my role. 

MR GRIFFIN:  And do I take it they're primarily assessed on the degree to which they haven't been compliant with the rules and regulations of Banksia?

MR REID:  There's a wide range of factors that are considered. In the end, I need to maintain safety and security at Banksia, and the benefit of Unit 18 has been significantly increased participation in educational programs at Banksia Hill since 20 July and a significant decrease in critical incidents at Banksia. So, if someone is providing a serious risk to safety of staff and providing a significant level of damage to infrastructure and I'm unable through our planning and other processes to normalise their behaviour, then Unit 18 will be considered. 

MR GRIFFIN:  It will be more than considered. It's likely that's where they'll end up, isn't it? 

MR REID:  Depends on the individual circumstances for that detainee. 

MR GRIFFIN:  But it's likely that's where they'll end up. 

MR REID:  An assessment is made and based on that assessment I'll make that decision if that move is needed.

CHAIR:  Mr Reid, how many of the 17 that were transferred to Banksia had acute needs that required psychological or psychiatric intervention? 

MR REID:  My understanding is most of them. I think I had a look today and I think the rate was about 80 percent of those were on the At Risk Management System but I would - in general terms, a high proportion have acute needs.

CHAIR:  I thought we were told that anybody with high acute needs to be transferred to the EMYU unit?

MR REID:  No, that's a separate matter.  If they go to EMYU that's from prevalent and existing mental health issues that need management by mental health staff.

CHAIR:  Right. How many of the 17 had mental health issues that required attention by mental health staff? 

MR REID:  I don't have a number off the top of my head, but the transfer of the 17 detainees to Unit 18 were not exhibiting psychiatric mental health behaviours to the point where they needed to be considered for a mental health facility.

CHAIR:  How did you know that? 

MR REID:  They were assessed on the basis of the risk to Banksia Hill.

CHAIR:  How does that tell you whether they have a mental health issue that requires intervention of mental health professionals? 

MR REID:  A large range of   as we've already discussed, a large proportion of detainees at Banksia have a range of deficits and that is reflected in the population at Unit 18 as well.

CHAIR:  Yes, but would you be good enough to pay attention to my question. How did you know whether the 17 or any of them had significant mental health issues that required mental health professionals to provide support for them? How would you know? 

MR REID:  How would I know specifically that they have mental health issues? I don't look at every single individual's    every day. When they're brought to my attention and it needs my intervention or my staff's intervention, then I deploy the right manager or the services to support that detainee.

CHAIR:  But you were requiring 17 young people to go to the facility at Casuarina, Unit 18. Wouldn't it have been extremely important for you to know whether any of those 17 had mental health problems sufficiently serious to warrant the intervention of mental health professionals to provide support in relation to that condition? 

MR REID:  The supports are mirrored in relation to health, mental health, psychological services at Unit 18. As part of the assessment I would be advised if someone had mental health issues, whereas it made them unsuitable to be transferred to Unit 18, I would be advised of that in that process. 

CHAIR:  You would be able to produce, would you, the advice that you received for each of the 17? 

MR REID:  Yes, that's correct. The client detail reports are completed by  

CHAIR:  Well, I'm sure we'll ask for that. Thank you. 

MR GRIFFIN:  Mr Reid, have you read the decision of the Western Australian Supreme Court in VYZ by Next Friend XYZ v the Chief Executive Officer of the Department of Justice [2022] WASC 274 delivered on 25 August 2022? 

MR REID:  Yes, I'm familiar with the outcome.

MR GRIFFIN:  Have you read that decision? 

MR REID:  I am familiar with the outcome, and I would have read the decision. 

MR GRIFFIN:  Would you please answer my question. Have you read the judgment of the Court? 

MR REID:  If you'd allow me to finish, I had read it, thank you, back at that time, yes. 

MR GRIFFIN:  And you were the second respondent in those proceedings; correct? 

MR REID:  Correct. 

MR GRIFFIN:  What is your take out from that decision of Tottle J? 

MR REID:  My take out of that is that the separate confinement of detainees was determined to not be legal as it was occurring. 

MR GRIFFIN:  Do you accept his Honour's decision? 

MR REID:  Of course. 

MR GRIFFIN:  Why did that occur? 

MR REID:  Why did the decision occur? 

MR GRIFFIN:  Why did the unlawful detaining of the detainees occur? 

MR REID:  Since my time of arriving there, as we all know from our discussions is 1 November, it's been my responsibility to maintain the safety and security of the site between the infrastructure and the staffing. A range of restrictions have had to be put in place that are not ideal to manage for the safety of staff and detainees. So, I can't recruit, unfortunately, a full complement of staff overnight, and although a significant commitment has been made by Treasury for infrastructure improvement, those things take time to be implemented, so maintaining safety and security is a daily battle. 

MR GRIFFIN:  There were three reasons I suggest to you, Mr Reid, why the transfer was made to Unit 18:  Safety of staff members, safety of other detainees, and to try and minimise damage to property. Would you agree with that characterisation? 

MR REID:  Yes. 

MR GRIFFIN:  Can either you or Dr Cooney throw light on what attempt was made to understand why the behaviour which was causing the damage was occurring in the first place? 

DR COONEY:  So I can probably touch on some of that. So, each young person who had been involved in the incidents, we do up bit of a case formulation, which means that we try and understand their behaviour and pull together what the various factors might be impacting on that behaviour. So, we look at individual characteristics of the young people, who we know have high levels of trauma and disabilities. And then we make recommendations to the staff on adjustments that could be made in their approach to the young people to try and support those needs. 

It was complicated by the fact that the low staffing and the infrastructure weaknesses the young people had identified those issues, and once they had spent periods of time in their cells, the boredom and lack of engagement and activities became a significant factor at play. 

MR GRIFFIN:  So there is an argument, a credible argument, is there not, Dr Cooney, that the behaviour that caused some of these people to be transferred to Unit 18 was caused by the Department's failure to adequately staff Banksia in the first place? 

DR COONEY:  Those are really complex issues that can't be simplified to that extent. I think there's a complex range of factors that are interacting that has led to the position that we were in. 

MR GRIFFIN:  But you can't discount that as being a primary consideration, can you? 

DR COONEY:  I think one of the factors that was impacting on the behaviour was the time spent in cell, yes. 

MR GRIFFIN:  A very significant factor, I suggest to you? 

DR COONEY:  If we had to put weightings on what the most significant factors were, but it was    

MR GRIFFIN:  Well, if you keep a young person locked in a cell for 23 hours of the day and that young person has relevant disabilities, that would be a major factor in assessing their subsequent behaviour, wouldn't it? 

DR COONEY:  Yes. 

MR GRIFFIN:  And what I want to suggest is that that factor was not given sufficient weight, Mr Reid, in the decision to transfer every one of that group of 17? 

MR REID:  Staffing was one factor, but you will get no argument from me that young people being locked in their rooms, would be a contributing factor. What caused one of the other significant factors that caused the move to Unit 18 was an evolvement of the behaviour of young detainees prior to   you know, back in 2021, they were not breaking out of their cells in the manner that they were in early 2022. So, that situation evolved, and that was a significant factor where we could not contain people in their accommodation for the safety of staff or other detainees. That was a large   that was a large part of the consideration. 

MR GRIFFIN:  What it boiled down to, I want to suggest to you, Mr Reid, is that the powers that be decided that the easier solution was to transfer rather than addressing the staffing and other shortages within the unit? 

MR REID:  The staffing and recruitment drive had already been addressed well before the evolvement of the behaviours where detainees were breaking out of their cells. However, to recruit, mobilise and train staff is a slow and lengthy process. We need to have our recruitment drive. There's assessment involved with that recruitment drive and preparation for the Academy, then a 12 week course. And then it depends on the uptake across Western Australia on the numbers that you get on that course. So mobilising recruitment is, unfortunately, not as easy as pressing a button. But, yes, there's no argument from me that staffing has been a significant factor. 

MR GRIFFIN:  And there was another option, wasn't there, that trained staff already working for Corrections in other facilities, adult facilities, could have been brought in in the short term to address that issue; correct? 

MR REID:  That's not for me to answer. 

MR GRIFFIN:  But you've been in Corrections for many, many years, haven't you? 

MR REID:  That's correct. 

MR GRIFFIN:  And you know that it's not uncommon for staff in one facility to be transferred to meet an urgent need in another? 

MR REID:  Yes, and I have had   there's been prison officers working well before my time at Banksia Hill, and while I've been at Banksia Hill, I've had at least two or three recruitment drives asking for staff to volunteer and apply to come and work at Banksia Hill and that has been occurring on a ongoing basis. But when you are talking about the whole of the Department of Justice and other facilities, they have staffing needs as well, but I've had fairly good support in getting prison officers released to assist. 

MR GRIFFIN:  Chair, they're the questions I have for these witnesses.

CHAIR:  Thank you very much. I'll inquire again of Commissioner Mason and Commissioner McEwin as to whether they have any further questions. Commissioner Mason? 

COMMISSIONER MASON:  No, thank you, Chair.

CHAIR:  Commissioner McEwin. 

COMMISSIONER McEWIN:  Yes, thank you, Chair. One question for either or both of you. Are the disability awareness training and the ongoing training relating to disability, is that provided by disabled people themselves? 

DR COONEY:  No, I don't believe so. So, the training providers differ depending on the training modules but the training   the initial training about the disability awareness, that's provided by   so the Department of Communities, so we have a government agency, the Disability Services team that are made up of   it's a multidisciplinary Disability Justice team that includes psychologists, speech pathologists, occupational therapists, but I don't believe that they have anyone with a disability as part of their team or as part of that training. 

COMMISSIONER McEWIN:  Why not? 

DR COONEY:  I'm not sure that I can answer on behalf of the Department of Communities. So   

COMMISSIONER McEWIN:  Alright. But do you believe that the training should be provided by disabled people themselves, relating   if it's about disability? 

DR COONEY:  I think any development of such training would be useful to have some lived experience contributing to that or present and providing the training, yes. 

COMMISSIONER McEWIN:  Thank you.

CHAIR:  Mr Reid, may I ask you whether you agree with the following statement:

    ‘Confining detainees to their sleeping quarters or cells for long hours is a severe measure.  Confining children to their sleeping quarters in a detention centre for long hours, thus effectively confining them in isolation, can only be characterised as an extraordinary measure. One should   that should only be implemented in rare or exceptional circumstances. Among the many reasons why it should be so characterised is because of the very significant harm such confinement can do to children in detention, many of whom are already psychologically vulnerable’. 

Do you agree with that? 

MR REID:  Yes.

CHAIR:  I should say, to be fair to you, that the judgment from which I just read makes a point that no personal criticism of you was made in the judgment or was sought by the representatives of the applicant. Dr Cooney, I don't intend any disrespect by this, but I notice that you've been referred to as Dr Cooney. Where does the doctor come from? 

DR COONEY:  So I've got a Doctor of Psychology degree.

CHAIR:  Thank you. So, that's a graduate degree that is actually the equivalent of a Doctor of Philosophy, or is it different? 

DR COONEY:  It's a professional   slight differences, but, essentially, it's six years   overall six years of study in the field of psychology.  It's a Doctor of Psychology.  And a Doctor of Psychology differs from the PhD in that it's got additional practical components rather than   and a smaller research, whereas the PhD focuses more on research.

CHAIR:  Thank you for that. I asked because I don't think it was referred to in your statement of qualifications, and I was just interested in your background. Thank you. In your answers on the program that included rehabilitation, I rather took it that the measure of   well, the intention of the program is primarily to reduce recidivism among the detainees at Banksia Hill. Is that a fair characterisation? 

DR COONEY:  Yes, so, in response to that question, yes. My role is to focus on providing as much as we can in the areas of rehabilitation.

CHAIR:  My point is   I'm not talking about your subjective intentions. I'm talking about the intention of the program. It is to reduce recidivism. That's its primary purpose, is it not? 

DR COONEY:  Yes, so I think as a centre, so everything we do is target towards reducing recidivism. A lot of the programs that we have are specific in that regard, and then some of the other programs that we have are really about enrichment and trying to provide enjoyable and fun activities for the young people. But, as a whole, our intention for Banksia Hill is to   our focus on rehabilitation of young people.

CHAIR:  Given that that is the intention, has it been effective? 

DR COONEY:  I'm not aware of the statistics specifically off the top of my head. I know that we've had some success stories that we hear of young people that have gone on to do some really great things and not have further contact with the justice system, and then we do have other young people that, unfortunately, do continue their contact with justice.

CHAIR:  But you don't know of any studies that analyse the success of the program by reference to the rate of recidivism? 

DR COONEY:  Not off the top of my head, sorry. 

COMMISSIONER MASON:  Chair, can I ask one more question based on that question that you just asked, because, as you know, I'm very interested in recidivism.

CHAIR:  Yes, Commissioner Mason. 

COMMISSIONER MASON:  Thank you. Just wanting to know, is there a program where young people who have been in detention and, as you say, have gone on and made a life for themselves in the community, do they   is there a program where they would come back and speak to detainees to   as a way of assisting them to reduce recidivism of current young people in Banksia Hill?  Is there a program currently running with that type of model? 

DR COONEY:  No, so we don't have a specific or formalised program of that nature, but we engage with ex detainees ad hoc and they will occasionally come in. So, probably about two months ago, we had a young female come back and explain the progress that she had made, and then sometimes, like, football players that have been in Banksia will come back. So, it's more ad hoc. So we definitely attempt to bring that in so that they can explain their journey and be an inspiration to the young people that currently are there. 

COMMISSIONER MASON:  Do you think a more structured program, a timetable, rather than ad hoc   which seems every now and again, once in a blue moon   might have a beneficial impact on young people in detention? 

DR COONEY:  Yes, I think it would be great. I think it would be good to look at that. I think there are complexities with that, just in terms of some young people not wanting to remember their past periods of time in Banksia, so we need to find the right young people and then support them but, yes, it definitely would be something that we could look at. 

COMMISSIONER MASON:  Thank you.

CHAIR:  Thank you very much, Mr Reid and Dr Cooney, for your evidence today and for the written material, at least Mr Reid, that you have provided. We appreciate your assistance. Thank you. 

MR REID:  Thank you.

<THE WITNESSES WITHDREW

CHAIR:  I see, Mr Griffin, that we're a little behind schedule. What should we do? 

MR GRIFFIN:  I was proposing to reduce the lunchbreak from 45 minutes to 30 minutes. I think I can be relatively quick with Mr Reynolds but will be some time with Dr Tomison.

CHAIR:  Alright. It's now, what, seven minutes to 12 Perth time, seven minutes to three Sydney time, and Commissioners Mason and McEwin can work out what time it is in Adelaide. So, if we resume at 3.25 Sydney time, 12.25 Perth time. 

MR GRIFFIN:  Thank you, Chair. 

ADJOURNED 11.54 AM 

RESUMED 12.27 PM

CHAIR:  Yes, Mr Griffin. 

MR GRIFFIN:  Chair and Commissioners, I call Mike Reynolds to give evidence. Mr Reynolds is the Commissioner of Corrective Services in the Western Australian Department of Justice. He's provided a statement to this Public hearing dated 12 September 2022, identification number STAT.0617.0001.0001. The statement is in hearing bundle C.1 at tab 60, and the attachments to the statement are at tabs 61 to 69. I understand that Mr Reynolds has made an oath prior to the present time. 

<MIKE REYNOLDS, SWORN
<EXAMINATION BY MR GRIFFIN

CHAIR:  Yes, thank you very much. Commissioner Reynolds, thank you very much for coming to the Royal Commission to give evidence today from Perth. By way of explanation as to where we are all located, Commissioner Mason and Commissioner McEwin are in Adelaide. I am in the Sydney hearing room, as is Mr Griffin, Senior Counsel Assisting the Royal Commission, and I will now ask Mr Griffin to ask you some questions. Thank you. 

MR GRIFFIN:  Mr Reynolds, you heard me indicate that you are the Commissioner for Corrective Services. How long have you been in that role? 

MR REYNOLDS:  I was appointed in March this year, and I've acted in the role since November 2020. 

MR GRIFFIN:  And you have made a statement dated 12 September 2022. 

MR REYNOLDS:  That's correct. 

MR GRIFFIN:  And you've responded to a request for information which is attached to that statement. Can I take you to that. Do you have a copy in front of you? 

MR REYNOLDS:  In the statement? 

MR GRIFFIN:  Yes. 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  And can I take you in particular to paragraph 8 of the attachment MR1. 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  You were asked whether there were any gaps or areas requiring improvement in Corrective Services data collection, and you commence the answer by saying:

    ‘On an individual level, we are able to accurately identify where a prisoner presents with a disability and then also manage it appropriately’.

On what basis do you make that assertion? 

MR REYNOLDS:  Based on the advice I've been given from our doctors, from our health clinicians, from our psychologists, from our educators, that, for each time we do an assessment when they come in, as Dr Rowland outlined in her evidence this morning, we have quite a thorough assessment process on entry. So, we are able to, you know, quite accurately identify those problems and manage them appropriately. Where the   where, obviously, the concern is, is being able to, out of our current system, get that information for the whole cohort to make those assessments of, you know, how many we have with specific disabilities. 

MR GRIFFIN:  Can I assume from your answer that you listened to the evidence of Dr Rowland earlier today? 

MR REYNOLDS:  Yes, I did. 

MR GRIFFIN:  Did you also hear the evidence of Mr Reid and Dr Cooney? 

MR REYNOLDS:  Yes, I did. 

MR GRIFFIN:  Whilst the Commission was sitting in Perth for four days, did you have any chance to listen to the evidence given by witnesses during that session?

MR REYNOLDS:  Very little, but I have read the transcripts for the majority of them. 

MR GRIFFIN:  So, you're familiar, in broad terms, for the evidence given of what we would call lived experience witnesses? 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  Going back to paragraph 8, are you saying that for every prisoner in the state, you're confident you can accurately identify any disability that they have? 

MR REYNOLDS:  What I'm saying is for every prisoner and detainee in the State, we undertake assessments. I'm confident that those assessments are appropriate and, you know, as much as possible, we provide the appropriate supports. As Dr Rowland said this morning, sometimes gathering that information and data is quite difficult, especially with detainees, as they spend, on average, 38 days in custody, and so many of them are in for very short periods of time. So, being able to gather that data and do those appropriate assessments can be difficult. 

MR GRIFFIN:  I want to draw a distinction between ‘appropriate’ and ‘accurate’. When you say you're able to accurately identify where a prisoner presents with a disability, does that mean that they have to disclose the disability or you have to have some other document which discloses it? 

MR REYNOLDS:  It could be both. So, obviously, self disclosing and disability, you know, gives us that basic information. And then our assessment process is to gather as much of that data as possible. 

MR GRIFFIN:  And does the assertion in paragraph 8 also apply to the detainees in Western Australia in youth facilities? 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  You've heard, no doubt, that this Commission has received evidence along the lines that someone coming into a prison or detention centre may be reluctant to disclose a disability for various reasons? 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  You wouldn't be aware of people that fit into that category, would you? 

MR REYNOLDS:  No, but our assessment processes try to use other ways of making those assessment:  observation, medical assessments, you know, psychologists and social worker interventions to try and identify those disabilities. It's often that people that come in on the early admission are often under the influence of alcohol or drugs or emotionally distraught. So, it's very, very hard to determine any information right at the beginning of their admission. 

MR GRIFFIN:  But you understand the distinction I'm drawing is between being able to accurately identify those prisoners that have disclosed disability, as opposed to asserting that you know, in relation to all prisoners, whether they have a disability? 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  And you certainly can't know the latter, can you, if they don't tell you? 

MR REYNOLDS:  No, that's correct. If they don't tell us and we aren't able to identify through other assessments, then we wouldn't. 

MR GRIFFIN:  Were you involved in the creation of the Functional Impairment Screening Tool known as FIST? 

MR REYNOLDS:  No. 

MR GRIFFIN:  Who was primarily responsible for creating that tool? 

MR REYNOLDS:  My understanding, Dr Rowland and her team. 

MR GRIFFIN:  You heard me ask her questions about the validation of that tool. 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  Which currently hasn't been undertaken. Do you have any information about whether or not the Department will fund an independent validation of that tool? 

MR REYNOLDS:  Once we have a reasonable dataset. So, as Dr Rowland said, WACSAR does this sort of stuff for us normally. On a number of occasions, they've asked for more data. It's very similar with our drug and alcohol prison and unit where there needs to be a reasonable percentage of data for them to do an accurate assessment. The Department is absolutely supportive of assessing the data to determine the accuracy of the tool at an appropriate time. 

MR GRIFFIN:  We're currently approaching the assessment of one third of adult prisoners. When will be the tipping point where that validation process can be undertaken? 

MR REYNOLDS:  I'm certainly not an expert in validation so I really need to get that advice from my colleagues who run WACSAR who are experts in providing that assessment and validation as to what percentage would tip the scales. But once   once I'm informed we have enough, we would undertake the validation. 

MR GRIFFIN:  Mr Reynolds, would you take that question on notice and ask the appropriate people to respond in writing to the Commission after this hearing? 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  Thank you. I now want to take you through the screening process which we discussed with Dr Rowland in any detail. It's true, isn't it, that you rely upon her answers in respect to many of the questions you were asked? 

MR REYNOLDS:  That's correct. 

MR GRIFFIN:  In particular, in relation to people with disability and the support they receive when they're in custody, from paragraph 15 onwards, you outline the times when you rely upon the responses given by Dr Rowland. 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  Can I pick up one thing in paragraph 16. There's a discussion about transferring prisoners to the Frankland Centre. 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  And it says:

    ‘The likelihood of successfully transferring the prisoner to the Frankland Centre is very low due to the lack of beds that are available’.

MR REYNOLDS:  That's correct. 

MR GRIFFIN:  That's to your knowledge. 

MR REYNOLDS:  That's to my knowledge. 

MR GRIFFIN:

    ‘There are very few options left, and my priority must be to keep prisoners alive. We are unable to administer medication without consent, and often the only option in such circumstances is to place the prisoners in the Crisis Care Unit, the CCU, for their own safety. I recognise that this is often a nontherapeutic environment and results in a restriction of access by the prisoner to their usual activities’.

MR REYNOLDS:  That's correct. 

MR GRIFFIN:  What steps have you taken in light of that information to try and rectify the situation of beds not being available at the Frankland Centre? 

MR REYNOLDS:  So, I’m aware there's a task force working on redoing the, you know, the more beds at Frankland, so I think the Director General is probably best placed to speak about that because he's actually on the task force for that. But it's well known that not only in Western Australia but in most correctional jurisdictions   we tend to be one of the biggest suppliers of mental health services and it's very rare for, you know, the community to have enough beds for those in custody who have a mental health issue. Access into Frankland or EMYU is for the most critical, and it is really based on bed space. 

MR GRIFFIN:  Do you know, based on your experience, Mr Reynolds, how many current adult prisoners are unable to be accommodated in Frankland due to bed shortage? 

MR REYNOLDS:  Look, that varies from time to time, but I'm aware we've got about 1,000 prisoners who are diagnosed with a mental disorder, and there's probably many more who have an undiagnosed disorder. Those that are what we called a critical or extreme risk, you know, probably are around 30, but that number varies. Some of those could definitely benefit from a placement in somewhere like Frankland, but the health service triages those at greatest risk and moves in. What it unfortunately means is sometimes someone's sent back from Frankland back to custody earlier than would have been ideal. 

MR GRIFFIN:  So can I take from your answer, without holding you to precise numbers, that there could be as many as 30 adult prisoners today in Western Australian prisons who, on a medical assessment, should be in Frankland? 

MR REYNOLDS:  Potentially, yes. Most of those wouldn't be on the Form 1, which is the authorisation or the direction to place them in a mental facility, but my experience from more than three decades working in Corrections is there are many people in custody who would be better suited to being placed in a mental health facility. 

MR GRIFFIN:  How do you endeavour to manage those people within the prison? 

MR REYNOLDS:  We absolutely endeavour to manage them, and there's a range of processes and functions and supports put in place. At the top end, as I said in my statement, placement in a CCU under direct observation of staff to ensure their safety, but often it's just placing them in a unit that is, you know, a quieter unit, less intense, getting them to buddy up with people who provide them supports. You know, managing   managing in the nonclinical sense their   their behaviours at the time. And, you know, the staff, both custodial and allied services, are very, very focused on ensuring the welfare of these people. 

MR GRIFFIN:  Mr Reynolds, is it fair to say that that approach is one of containment rather than providing treatment? 

MR REYNOLDS:  It's about ensuring their welfare. We're not in the position to provide medical treatment that they would gain in a mental health facility. 

MR GRIFFIN:  If that's the case and your staff recognise they need acute treatment, and for logistical reasons they're not receiving it, isn't that a form of torture? 

MR REYNOLDS:  No. It's not a form of torture. I mean, we manage the people who are remanded or sentenced to custody by the court. As a correctional services, I don't have an option to choose not to take somebody into my custody. They are sent to us. We manage them as well as we can and in the most appropriate manner. I absolutely don't accept that we torture them. 

MR GRIFFIN:  Have you considered the option of placing such people in a secure inpatient mental health unit in the community? 

MR REYNOLDS:  Well, there are no beds or secure mental health units available. 

MR GRIFFIN:  And has that been the case for a number of years, in your experience?

MR REYNOLDS:  Certainly, my experience in the last three years in Western Australia and, you know, the 32 years in South Australia, there are no large or appropriate mental health secure facilities in the community. 

MR GRIFFIN:  Let's confine ourselves to this state, to Western Australia in the last three years. Given this issue, what steps have you taken to try and redress that question? 

MR REYNOLDS:  It's not a decision for me to determine what mental health facilities are in the community. As I said, the Director General is sitting on the task force looking at the increase of mental health beds in Graylands and Frankland, but it's not for me to make a submission that I need mental health beds. 

MR GRIFFIN:  Well, can I beg to differ about that, Mr Reynolds. It may not be for you to make the decision, but my question was what steps have you taken to try and rectify that situation? 

MR REYNOLDS:  Sure. So   

MR GRIFFIN:  Since you've been the Commissioner? 

MR REYNOLDS:  So, I'm fully aware that we have a mental health issue. My team talks with the Mental Health Commission a regular basis. As I said, the Director General is on the task force looking at this very issue to try and find more secure beds. 

MR GRIFFIN:  But have you personally made representations to the Minister in your role as the Commissioner for Corrective Services? 

MR REYNOLDS:  The Minister is aware of the mental health beds, and there's been a discussion, but I have not made a personal representation to the Minister about getting more community beds. 

MR GRIFFIN:  Why not? 

MR REYNOLDS:  Because, as far as I'm aware, this is already being dealt with through the revamp of the Frankland Centre and Graylands. 

MR GRIFFIN:  What's your understanding of when the Frankland centre will be revamped, to use your word? What's the deadline for that?

MR REYNOLDS:  Again, Dr Tomison is probably the best person to give you those dates because he's on the task force, but it's a large initiative to increase. Dr Tomison and I have discussed it on many occasions, and he's been clear that there needs to be many more beds for those in our custody who require secure mental health treatment. 

MR GRIFFIN:  Subject to correction, I thought I read somewhere it was anticipated it might be 2026 before that happens? 

MR REYNOLDS:  That may be correct. I mean, building a new facility doesn't   or extending a new facility doesn't happen overnight. 

MR GRIFFIN:  So, do the people that can't get access to Frankland just suffer for the next four years?

MR REYNOLDS:  We do everything we can to give them appropriate support whilst they're in our care. You know, if they're floridly psychotic or violent, we'll take them to an emergency unit at a hospital to provide support. But as Dr Rowland said, we're not in the position to be able to administer, you know, medication or those sort of treatments that they would get in somewhere like Frankland. 

MR GRIFFIN:  You're responsible, ultimately, for the management of Banksia Hill Detention Centre? 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  How would you describe your level of satisfaction with how that centre has been run over the last two years? 

MR REYNOLDS:  Banksia Hill's been a very difficult facility over the last two years, and as others have already said, part of that was due to the low staffing numbers. We also have a very difficult cohort of young people who've come into custody, and we're seeing very similar behaviours that have been enacted by those same young people in the community where there's high levels of violence, high levels of destruction. And Banksia, the infrastructure was developed 25 years ago and it was fit for purpose then. Since then, we've, you know, we've had major damage, major unrest. 

So, if you're asking if I'm satisfied if Banksia's all it could be? Absolutely not, but we are doing everything we can to, you know, return it to a normal operational model and have the young people who aren't involved   especially those who aren't involved in this destructive behaviour having the best chance of getting supports and rehabilitation. 

MR GRIFFIN:  To use your words, when was Banksia last a normal operational model? 

MR REYNOLDS:  Banksia's working on a relatively normal model now and was prior to probably February this year where we started to see the level of destruction, but we have had a lot of staff shortages and damage over the last 18 months in that facility. 

MR GRIFFIN:  Do I take it from that answer that, as the Commissioner, you're satisfied with how Banksia was operating up until February this year, and you're currently, subject to staff shortage, satisfied with how it's operating? 

MR REYNOLDS:  No. Basically what I said was there was   you asked when it was all operating normally   it was operating normally. I've been very clear with my position on Banksia that we needed to review the model of care and we needed to have a different focus at Banksia. There's been a number of different models of care put into the system that, frankly, don't work. They weren't consulted widely with the staff or the young people. So, we've done a full jurisdictional scan. We've looked at youth custody experts. We've engaged them. We focused on developing a new model, and that's the process of what we're in. So, it hasn't worked the way I wanted it to work since I've been in this role, hence the focus to change the operations. 

MR GRIFFIN:  So, when you say it was operating normally up until February of this year, does the word ‘normally’ mean ‘adequately’, in your view? 

MR REYNOLDS:  ‘Normally’ means how the approved model of operations was at that stage. But I wasn't necessarily satisfied, and I wanted to give the young people in custody and the staff who work there the best possible chance of success. 

MR GRIFFIN:  So, as of February this year, what aspects of its operation were you not happy with?

MR REYNOLDS:  We had a high range of damage and violence against my staff, and damage against the facility, exacerbated by a number of resignations and shortages of staff which was impacting on all of the young people. So, they were secured a lot more than I was comfortable with and not able to have access to the normal operations of the centre and all of the activities. 

MR GRIFFIN:  Do you read the reports of the Inspector of Custodial Services when they're published? 

MR REYNOLDS:  Yes, I do. 

MR GRIFFIN:  Does you as Commissioner or the Department more generally respond to each of the recommendations made by the Commissioner within a timely fashion? 

MR REYNOLDS:  Yes, we do. 

MR GRIFFIN:  How do you do that? 

MR REYNOLDS:  So we have an MOU with the Inspector. So, we get a draft report prior to his tabling which we can provide, I guess, opinion and support on if we disagree with something in the report. We will then determine whether we accept the recommendation, whether it's current practice or whether it's something we don't agree with. We will then provide that back to the Inspector formally within a number of weeks after the report being sent to us. 

MR GRIFFIN:  You no doubt have heard Banksia being described as ‘not fit for purpose’. You understand what that expression means? 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  Do you accept that proposition? 

MR REYNOLDS:  I accept that the purpose it was originally designed for is not what it's being used for now, and we are modifying the facility. The government's given us $21 million to make modifications to make it fit for purpose. 

MR GRIFFIN:  What changed between when it was first established and now, which rendered it, in your view, currently unfit for purpose? 

MR REYNOLDS:  So, the   I didn't say it was unfit for purpose.  I said we're making it fit for purpose. So, there are areas that are not ideal, and that's why we're not holding them   that's why we've had so much damage. When the unit was first opened, it was opened as a sentence prison for detainees   sentence detention centre for detainees who were sentenced. And it was   it was an open campus, almost like a school design. With the closing of other detention centres and amalgamating them all into one facility, it became everything, so a remand facility, a sentence facility for young people from the age of 10 to 18 and both male and female. 

MR GRIFFIN:  So, when it was a facility for young people who had been sentenced, it didn't have difficulties in relation to staff shortages? 

MR REYNOLDS:  Look, I couldn't really comment. As I said earlier, I wasn't in the state at that time, but my understanding is they didn't have those issues. 

MR GRIFFIN:  And there was no significant issue of damage to property?

MR REYNOLDS:  Again, I believe not, but I couldn't confirm that because I wasn't here then. 

MR GRIFFIN:  And so, when remand detainees were included in the population at Banksia, did that change the unit in some way? 

MR REYNOLDS:  Well, my understanding is that when they combined the two units, then it became a level of disruption. 

MR GRIFFIN:  Where's that understanding come from and precisely what were you told? 

MR REYNOLDS:  From advice I've had from talking to management from Banksia and staff who've been there for a long period of time who had said that it was more stable when it was just a sentence facility, had much lower numbers and the combining of the remand and sentence created different issues. 

MR GRIFFIN:  It's not clear to me, Mr Shepherd, why it would make any difference whether someone was sentenced as opposed to remanded.

MR REYNOLDS:  Sorry, it's Mr Reynolds. 

MR GRIFFIN:  Sorry, Mr Reynolds. 

MR REYNOLDS:  Sorry, could you repeat the question?

MR GRIFFIN:  It's not clear to me why you draw a distinction between the sentenced young people and remand young people as causing a different consequence for the management of the unit? 

MR REYNOLDS:  So it's quite often that persons on remand are a lot more unstable. They often come in highly emotional because they've been sentenced to   sent to custody, whether that's prisoners or detainees. They often have a lot of issues that you wouldn't necessarily get with a stable sentence population, ie, drug, alcohol issues. There's often family concerns, access   you know, if you're an adult, access to your children and other things. So, a remand population is always less stable than a sentence population. 

MR GRIFFIN:  I'm afraid I still don't understand why you say that. Where's the research to support the proposition that remand population is more unstable in the way you've described than a prisoner population? 

MR REYNOLDS:  Well, it's   I mean, I can't refer you to direct research but I can refer you to 35 years working in the industry, and I can tell you that, in my experience, a remand population is always less stable than a sentence population of prisoners.

CHAIR:  Is it possible that that lack of stability has something to do with the way they're treated? 

MR REYNOLDS:  The lack of stability usually, Commissioner, is based on the   those other triggers. They don't know how long they're going to be in custody. They don't know what's going to happen. They have, you know, family and friends. Those social contacts are changed. Often they have   simple things such as pets in the household, you know, people picking up children from school. There's a lot of   lot of other stresses. They've got the court process, they've got the court case, they've got, ‘Am I going to be sentenced?’. ‘Am I going to get a long sentence?’. ‘Am I going to get a short sentence?’. 

So, the remand population always has, I guess, a higher level of stress on them than a sentenced prisoner. A sentenced prisoner knows how long they're going to be in custody. They know what the progress is, where they're   how long they're going to be in the sort of maximum security, how long they'll be in minimum, when they will make it to maybe a work farm, whether they can get work in the community. Their time in custody is mapped out for them. A remand prisoner, it's sort of from court hearing to court hearing. They never really know what the outcome is. 

CHAIR:  How many of the 17 who were transferred to Casuarina were on remand? 

MR REYNOLDS:  I don't have that number off the top of my head.  I think it was probably about 70 percent but I'll have to confirm that. 

MR GRIFFIN:  Can I ask you in relation to a report from Mr Ryan, the Inspector, where he made a recommendation in relation to the screening and he suggested that to revise the initial health screen to include identification of intellectual disability and cognitive impairment. Are you familiar with the detail of the screening which occurs when people enter Banksia? 

MR REYNOLDS:  I've been briefed on the screening but I'm not intimately involved in, obviously, the medical side of the screening. 

MR GRIFFIN:  Well, both Mr Ryan and his predecessor, Mr Morgan, commented in reports on the inadequate process for identification of cognitive impairments in young people in custody. It appears from the evidence the Royal Commission has that this issue was not promptly addressed. Do you have any information in relation to that issue? 

MR REYNOLDS:  No. My understanding is that   from Dr Rowland's testimony earlier that the assessment process that we use is covering most of those issues. 

MR GRIFFIN:  Did you hear Dr Rowland's evidence in relation to access to pre sentence reports? 

MR REYNOLDS:  Yes, I did. 

MR GRIFFIN:  Do you agree with what she said about what the understanding was at particular times about whether access could be gained to those reports? 

MR REYNOLDS:  Yes, I believe there was opinions sought in 2014 which made it more complex. I think there's a better understanding now about how to access. I think when Dr Rowland spoke this morning she spoke about access to the reports in the Youth Sentencing Act, which is different from the adult Sentencing Act. But I understand that we do have solutions to ensure that they have access to both where appropriate. 

MR GRIFFIN:  You would have heard me take Dr Rowland to the provisions of the Act, and on my reading of the Act, the entitlement has been there for quite some time under section (4a). Were you aware of that? 

MR REYNOLDS:  No. 

MR GRIFFIN:  Were you relying on advice which had been provided by the Crown Law department or some similar body in 2014? 

MR REYNOLDS:  That's the understanding that was the advice that they were working off, and, as I said recently, they found that they actually were able to get access. 

MR GRIFFIN:  Well, when you say ‘recently they found’, I was unaware of this legislation until recently and I simply looked it up, and immediately came to a view, as I indicated this morning. Why was the Department not advised of what the effect of subsection (4a) was? 

MR REYNOLDS:  I don't know. I can't answer that. 

MR GRIFFIN:  Well, isn't it intrinsic to a successful screening and assessment process that you have access to as much relevant information as possible? 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  And a specialist report included in or attached to a pre sentence report would usually be such information? 

MR REYNOLDS:  That's correct, but the advice we had at the time was that we couldn't access them. We now understand that we can and are going to use them. 

MR GRIFFIN:  Well, I take it you don't have legal qualifications. 

MR REYNOLDS:  That's correct. 

MR GRIFFIN:  Can I assume Dr Tomison doesn't have legal qualification? 

MR REYNOLDS:  That's my understanding. 

MR GRIFFIN:  And yet you share certain things in that he's delegated to you in what was his statutory role as Commissioner in relation to Corrective Services? 

MR REYNOLDS:  Sorry? 

MR GRIFFIN:  Dr Tomison was appointed Director General of the Department of Justice. 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  He also was effectively the Commissioner for Corrective Services; is that your understanding? 

MR REYNOLDS:  He's a Director General of Justice and he delegated responsibilities to me as the Commissioner. 

MR GRIFFIN:  So one of those delegated responsibilities was your role as Commissioner for Corrective Services? 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  Neither of you are legally trained? 

MR REYNOLDS:  That's correct. 

MR GRIFFIN:  Where do you obtain legal advice from, if and when you require it? 

MR REYNOLDS:  So there's two avenues. One is through the State Solicitor's office and the other is through the Legislative Services branch in Justice. 

MR GRIFFIN:  And presumably Legislative Services in Justice Would have been aware of the Act when it was amended with the inclusion of (4a). That would be safe to assume, wouldn't it?

MR REYNOLDS:  I assume so. 

MR GRIFFIN:  Because it's legislation directly concerning the Department. 

MR REYNOLDS:  I assume to. 

MR GRIFFIN:  And are you saying, to your knowledge, you were never advised that they had looked at that new section and given advice about what it could be used for? 

MR REYNOLDS:  That's correct. I was not advised. Again, you know, I don't know what they were or weren't aware of. 

MR GRIFFIN:  You would have no problem with the notion that such information would come under the general heading of ‘assisting in the management of a prisoner’? 

MR REYNOLDS:  Absolutely. 

MR GRIFFIN:  And I take it you would be ready to use such information, if it was relevant to a particular prisoner or detainee? 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  And not being aware of the right to have access to it has presumably affected the ability of those running the prisons and the detention centre to assist some of their people in custody? 

MR REYNOLDS:  That would be fair to say. 

MR GRIFFIN:  Do you have any explanation as to why that happened, that a power would exist for so long and not apparently be utilised? 

MR REYNOLDS:  No, I don't have an explanation for it. You know, it's definitely not ideal, and it's something that I'll definitely follow up. But, you know, we weren't aware, as Dr Rowland has stated.  We should have been and, you know, we will rectify that failure. 

MR GRIFFIN:  Did you first become aware of what I've been speaking about today? 

MR REYNOLDS:  Yes.

CHAIR:  Have you ever had occasion to look at the Sentencing Act? 

MR REYNOLDS:  It's not an Act that I spend a lot of time looking at, Commissioner. Obviously, I try and make myself aware of all legislation that covers the responsibilities of my role, but I'm not a lawyer and I don't read Sentencing Acts line by line or other legislation. But I do seek advice from, you know, Legislative Services or State Solicitors where I need specific advice.

CHAIR:  Yes. 

MR GRIFFIN:  You heard me ask questions of Mr Reid in relation to staff shortages. Do you agree with his answers in respect of the broad numbers involved in staffing Banksia? 

MR REYNOLDS:  I have sought some more detail after Mr Reid's testimony, in case you wanted some accurate details. I'm happy to provide you accurate numbers, if that's helpful. 

MR GRIFFIN:  That would be appreciated, if you could. If you could tell me where the information came from and what the information was? 

MR REYNOLDS:  So the information came from my Women and Young People Directorate who are responsible for Banksia, and they provided me a breakdown of youth justice officers, senior officers, unit managers, public servants, other government staff, teachers, et cetera. 

MR GRIFFIN:  Now, if you could have that information sent through to us.  I won't take you through every aspect of it, but it seemed in relation to the Youth Custody Officers, that Banksia, on average, was working at about half of the number that they ideally should have. Is that a fair commentary? 

MR REYNOLDS:  That's correct. 

MR GRIFFIN:  Why has that been allowed to happen? 

MR REYNOLDS:  I think there was an issue in the way we were recruiting the Youth Custodial Officers, and rather than having a strong recruitment program where we run a continual recruitment, we waited until there were vacancies. We had a number of vacancies, a number of resignations in quite a short period of time which exacerbated the numbers. And as Mr Reid spoke about this morning, our attrition rate is still quite high. And a lot of that attrition was during the period where we were seeing a lot of serious violence against my staff. 

MR GRIFFIN:  Let me pick up on the attrition rate. Does the Department have an exit interview for those people leaving the Department? 

MR REYNOLDS:  We have a voluntary exit interview, as I think was outlined by either Mr Reid or Ms Cooney. But it's a voluntary exit and not all people who leave are willing to undertake it. 

MR GRIFFIN:  What percentage of people exiting as employees participate in an exit interview? 

MR REYNOLDS:  I don't believe the numbers are high. I think the last time it was reported at the corporate executive was probably only about 15 percent. But I'd have to confirm those figures. 

MR GRIFFIN:  15 percent of those people leaving the Department choose to participate in an exit interview? 

MR REYNOLDS:  I believe they are the right numbers, but we'll confirm those numbers. 

MR GRIFFIN:  Have you had any advice as to what would be a suitable percentage in order to draw conclusions from why they're leaving. 

MR REYNOLDS:  I'd love to see 90 or 100 per cent filling out exit interviews. Some of the advice I've been given by corporate services is that some of the reasons staff haven't completed exit interviews is they found them difficult to complete. So they've done a piece of work to try and improve an online system so they can give their anonymous feedback when they're leaving, so we're hoping to improve the number of exit interviews we do get. 

MR GRIFFIN:  What does the current exit interview actually entail? 

MR REYNOLDS:  It's a questionnaire which asks a range of issues, ie, are you leaving to retire, have you found a better job, are you unhappy with employment. And then it asks questions about how you found the Department to work for. You know, was it a supportive environment, were there issues with the way you were employed or the interaction with other staff or, you know, with the job in general. 

MR GRIFFIN:  Can that be completed with complete confidentiality? 

MR REYNOLDS:  Yes, it's an electronic   it sits in our electronic system, and so staff can log on and complete the interview and it's completely anonymous. 

MR GRIFFIN:  Mr Reynolds, I don't understand why a staff member would find that a difficult process in those circumstances? 

MR REYNOLDS:  Well, you know, again, I'm not going to try and ascertain why staff choose to not fill out an exit survey. The system is there. That   I guess that's up to the individual leaving the Department to determine whether or not they wish to be involved. 

MR GRIFFIN:  I want to differ with you there, in relation to that answer. Isn't it absolutely crucial to know why someone would decide that they don't want to complete an exit interview? Probably even more important than reading the ones that do? 

MR REYNOLDS:  Well, again, you know, I had no ability to force staff to complete an exit survey. Our Human Resources area in Justice have tried to streamline the process and encourage more staff to be able to complete exit interviews, but, ultimately, the decision sits with the individual. 

MR GRIFFIN:  It does, but you can have a question which simply says, if you don't wish to complete this questionnaire, please tell us why. 

MR REYNOLDS:  Well, we could but I'm not sure that would give us any value because there would be a whole bunch of staff who likely wouldn't even bother doing that.

MR GRIFFIN:  Well, that's an assumption on your part. You haven't even tried it. 

MR REYNOLDS:  With due respect, I don't necessarily think that changing one question on an exit interview is necessarily going to give us what we need. I would much rather prefer to try and get staff to stay, and ultimately if they're leaving, find out why they're leaving. 

MR GRIFFIN:  In effect, what you're saying, Mr Reynolds, is that you're quite content for 85 percent of the people leaving to not give you any indication about why they're leaving. 

MR REYNOLDS:  I didn't say that at all. There was nowhere I said I was content. I just said I didn't agree with the premise of your question. 

MR GRIFFIN:  You're content to the extent you don't want to follow it up. 

MR REYNOLDS:  Pardon me?

MR GRIFFIN:  You're content to the extent you don't wish to follow it up.

MR REYNOLDS:  That's not true. As I said, our corporate services area are focusing on trying to improve the number of exit interviews that we get. I think that shows that we aren't content to just leave it, that we are very focused on trying to find out why people are leaving the Department.

CHAIR:  Have you offered people who leave or intend to leave the option have a personal interview with someone so that they can explain what it is that has led them to resign or otherwise depart? 

MR REYNOLDS:  Certainly, Commissioner. The line manager or the site manager at the location they work, always has that discussion prior to them leaving it try and ascertain, you know (1) whether we can change their mind. It takes a lot of time to recruit and train staff. So, we're very keen to keep as many as possible. And, you know, we always try to have those conversations. A lot of people will give you, you know, quite extensive reasons why they are leaving and still won't fill out the survey. Others will say, yes, it's time, I'm retiring, you know, I've got a better job, I'm off.

CHAIR:  Sorry to interrupt. But when you say that it's quite common for the person, employee who's about to leave to have a discussion with a supervisor, is there any record kept of the reasons given in the course of those conversations? 

MR REYNOLDS:  They're not kept in a formal way. Obviously, they're shared to try and get a picture of why people are leaving.

CHAIR:  But they're not shared? 

MR REYNOLDS:  They're not kept in a formal   so there's not a formal record or report that's kept, but the information that's coming out is shared through our sort of leadership teams through   through to the Department.

CHAIR:  I just want to be clear about the evidence you've given on this point. I understand that it may be common practice for a supervisor to speak to someone who's about to leave with a view, perhaps, to try to persuade them to stay or to understand better what issues they may have. But is it a standard part of that discussion for the supervisor to offer the option of an interview with somebody outside the line of responsibility of the individual who is leaving? 

MR REYNOLDS:  No. The conversation is always usually through the chain of command. 

CHAIR:  Wouldn't it be a good idea, if you really want to find out why they're leaving, to actually ask them in person through somebody who is independent of the line of command and who has the skills to have a discussion in confidence with that person? 

MR REYNOLDS:  Look, it potentially could be. It's something that I would need to talk to our, you know, our Human Resources team who manage this part of the business for us. 

CHAIR:  Yes. Speaking for myself, I can readily understand why people don't want to fill out forms. I hate doing it. I'm not leaving the Department. 

COMMISSIONER MASON:  Mr Griffin, can I just ask an additional question.

CHAIR:  Yes. 

COMMISSIONER MASON:  Mr Reynolds, just wanted to have it clarified. In terms of the exit interview, is the information collected   is it confidential, is it de identified? Because sometimes in a workforce or in a public sector, that does create some nervousness in people providing information to a department as they exit. But that process, is it de identified so there is   there's checks and balances so that that privacy really is strongly protected? Thank you.

MR REID:  Yes, Commissioner, it is de identified. So, it's anonymised when it's completed and then goes into a database, and then as part of corporate executive, I'm given the sort of, the trends that come out of the whole of Justice from those surveys. So, there's no way to individually pinpoint one person and say, you know, Mike Reynolds left because he says this. So, it's very protective in that manner. 

COMMISSIONER MASON:  Thank you. 

MR GRIFFIN:  Mr Reynolds, you would know from your experience in management that continuity of staffing is very important. 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  It enables people to understand the culture of the institution; correct? 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  It enables them to bring to bear their experience in dealing with day to day issues? 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  Mr Reid gave evidence about a turnover of staff, and I think the figure can be as high as 25 percent on an annual basis. How do you know that you're not losing potentially the best people? 

MR REYNOLDS:  I think we may be losing some very good people. It's been very unfortunate. And that's why, you know, I've committed to doing everything we can to retain staff and give them a safe work environment. 

MR GRIFFIN:  As the Commissioner, do you have the authority to transfer custodial staff from one place to another? 

MR REYNOLDS:  Only from prison to prison. I have no power to transfer prison officers to the detention centre because they are both employed under different legislation. 

MR GRIFFIN:  Does it flow from that answer that nobody has authority to direct prison officers to leave a prison and go to a detention centre? 

MR REYNOLDS:  That is correct. 

MR GRIFFIN:  Has consideration been given to changing that in light of the chronic staff shortage at Banksia? 

MR REYNOLDS:  So consideration will be done about how prison officers can still engage in a detention centre as part of the review of the legislation. But what we do is we seek volunteers who are prison officers to provide support and assistance at the detention centre, and we get as many of those as we can. 

MR GRIFFIN:  But it seems from the evidence of Mr Reid that not sufficient numbers put their hand up such that the staffing shortage at Banksia can be eliminated. 

MR REYNOLDS:  Well, prison officers can't work as Youth Custodial Officers because they're not trained as Youth Custodial Officers. So, all the prison officers can do is provide some specific support and free up Youth Custody Officers to work directly with detainees. 

MR GRIFFIN:  They could certainly undertake tasks, couldn't they, such as manning gates and doing security and those sorts of things. 

MR REYNOLDS:  Which is what we use them for. 

MR GRIFFIN:  And that would free up Youth Custody Officers to deal directly with the detainees. 

MR REYNOLDS:  That's what we've done. 

MR GRIFFIN:  But there still remains, on my understanding, a significant staff shortage at Banksia as we speak. 

MR REYNOLDS:  There is a staff shortage at Banksia which we're addressing. However even if I could transfer another 30 prison officers to Banksia, I still couldn't put them in frontline, direct contact with the detainees because they're not trained Youth Custodial Officers.

CHAIR:  What exactly does one have to do to be trained as a Youth Officer? 

MR REYNOLDS:  Commissioner, they're very different roles. I mean, there's a whole different training  

CHAIR:  I understand, but what does one have to do to be trained?

MR REYNOLDS:  If I wanted to train a prison officer, if I had prison officers who determined they wanted to become a Youth Custodial Officer, we would send them off to a recruit course and give them the full 12 week training as a Youth Custodial Officer.

CHAIR:  So it takes 12 weeks? 

MR REYNOLDS:  Indeed, and if they're going in the other direction from a Youth Custodial Officer to a prison officer, it takes the same amount of time. So, we give them very different training and we   I can't see a situation where I could transfer prison officers in and make them Youth Custodial Officers.

CHAIR:  But you could inquire of prison officers whether they would be interested in taking the 12 week course and thus having more skill? 

MR REYNOLDS:  And we have done that, and we've had very few take us up on that. But where they do, we actually will retrain them into the new role. Unfortunately we tend to get more Youth Custodial Officers who choose to go off and be prison officers. 

MR GRIFFIN:  Why is that? Why is it more attractive to work in a prison than a youth detention centre? 

MR REYNOLDS:  That's really up to the staff. The pay and conditions are probably different. It's something we've been working with the union as part of the next round of enterprise bargaining for Youth Custodial Officers to look at being able to match some of the conditions that are in the prison officers' agreement. 

MR GRIFFIN:  Sorry, can I go back to my question. Why do you believe it appears more attractive to work as a prison officer than a Youth Custodial Officer. 

MR REYNOLDS:  I think I just answered that. I'm sorry if it wasn't clear. I think a number of them think it's better pay and conditions to work as a prison officer than it is as a Youth Custodial Officer.

MR GRIFFIN:  Let's deal with the pay. Why is the pay not equivalent for a prison officer and a Youth Custodial Officer, if it is different?

MR REYNOLDS:  It is different and, as I said, we're working with the union and public sector as part of the new enterprise agreement for Youth Custodial Officers to try and match some of those conditions. 

MR GRIFFIN:  Well, can I give you a tip. If you offer Youth Custodial Officers an increase in pay to go up to the level of prison officer, you'll have to leave the doorway with the rush. What's there to negotiate? Make them on an offer? 

MR REYNOLDS:  Well, with respect, I'm not in a position to make a pay offer to staff. It goes through the enterprise bargaining process which we're currently involved in, and I've made very clear recommendations to both the government and the youth detention officers' union that we should be seeking to try and match those conditions. So, you know, what you've suggested is what I'm trying. I can't just give them a pay rise because I think it's a good thing. 

MR GRIFFIN:  But how   

MR REYNOLDS:  That's not how the public service works. 

MR GRIFFIN:  How long have these discussions been going on? 

MR REYNOLDS:  Since I've been in role I've been having this discussion. 

MR GRIFFIN:  Which is how long? 

MR REYNOLDS:  Since March this year. 

MR GRIFFIN:  How far away are we from a resolution? 

MR REYNOLDS:  The enterprise agreement is currently being worked on. An enterprise agreement is renegotiated every couple of years. So theirs is due. We're working on it now. 

MR GRIFFIN:  Mr Reynolds, you could go to the Minister today and you'd say, ‘Can the government make a temporary decision to pay Youth Custodial Officers on the same rate as prison officers pending the finalisation of the enterprise bargaining agreement’. There's nothing to prevent you doing that, is there? 

MR REYNOLDS:  We have already gone to the Minister on a number of occasions and sought extra payment for specific periods, which has been approved and supported by the Minister and so we are paying extra money to Youth Custodial Officers where we can.

CHAIR:  What is the difference in pay for a Youth Custodial Officer, compared with a prison officer? 

MR REYNOLDS:  I'm not sure what the dollar value is. There is a dollar value and there's   it's very complex, Commissioner, because there's different conditions. So, the prison officers have an annualised salary. The youth custody officers have different leave arrangements. So, trying to balance out those things   because what I also, don't want to do is take off benefits that the Youth Custodial Officers have under their enterprise agreement. So, it's not swapping from one to another; it's actually trying to match the conditions to give them, you know, an equal footing to what the prison officers have.

CHAIR:  Do they have separate unions representing them? 

MR REYNOLDS:  Yes, they do. 

MR GRIFFIN:  Mr Reynolds, whilst this goes on, young people in Banksia are continuing to suffer by not being able to access the entitlements they should be entitled to. That's correct, isn't it? 

MR REYNOLDS:  Young people in Banksia are getting out of their cells. They're getting access to lots of support and programs and education, which has dramatically improved since the opening of Unit 18. 

MR GRIFFIN:  Did you read the decision of the Western Australian Supreme Court that I referred Mr Reid to? 

MR REYNOLDS:  I did. 

MR GRIFFIN:  What was your take from reading that decision? 

MR REYNOLDS:  My take was that the court determined that placing young people in isolation due to staffing shortages wasn't lawful. 

MR GRIFFIN:  Did that decision surprise you? 

MR REYNOLDS:  I think that we may not have made the case that we should have. I think that it's much more complex than just staff shortages. 

MR GRIFFIN:  Well, what are the other complexities, apart from staff shortages, that caused that to happen? 

MR REYNOLDS:  Incidents, predominantly. So, you know, damage, violence, assaults against staff, you know, rooftop ascents, damage to property, escaping from cells, to name just a number of incidents that regularly caused disruption to the day and much more so, when we had the cohort of young people causing this level of damage. 

MR GRIFFIN:  Do you accept that at least some of those people that were causing disruption, that their conduct may have been attributable to their disability? 

MR REYNOLDS:  Potentially it could have been. But I also have a duty of care to all   

MR GRIFFIN:  I'm not doubting your duties. 

MR REYNOLDS:  Well, yes   

MR GRIFFIN:  Do you also accept the proposition that placing those people in confinement for up to 23 hours a day may have significantly contributed to their behaviour? 

MR REYNOLDS:  Long term of detention for any   isolation for any person is not good, you know, so   and it's never ideal. So, you know, it would have definitely contributed to continuing of behaviours, but the majority of young people who ended up being locked in their cells was because of the behaviour of others. 

MR GRIFFIN:  Well, you heard the evidence of Mr Reid to the effect that an assessment was done in relation to each of the 17 that were transferred to Unit 18; correct? Who conducted those assessments? 

MR REYNOLDS:  So the assessments were done at the facility. They included a multidisciplinary team of staff, including custodial, science, health, education. 

MR GRIFFIN:  And were those assessments or reports reduced to writing? 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  Did you receive copies of reports in respect to each of the 17 detainees? 

MR REYNOLDS:  No. 

MR GRIFFIN:  Who did?

MR REYNOLDS:  So, they were managed through the Superintendent at Banksia Hill and through the Deputy Commissioner of Women and Young People. I have seen them but I didn't individually review each of the 17. 

MR GRIFFIN:  Do you know whether the Director General of the Department reviewed those reports? 

MR REYNOLDS:  You'd have to ask him. 

MR GRIFFIN:  Do you know where those reports ever currently held? 

MR REYNOLDS:  All the reports for all those detainees are part of our permanent record management. 

MR GRIFFIN:  Do you accept it was an extraordinary action to move young people from a youth detention centre to a unit in an adult prison? 

MR REYNOLDS:  I agree it was an extraordinary measure. I think it was a well-balanced and long thought out decision of the Director General which I actually support and had been   options for other placement had been considered for quite some time and, initially, we determined we wouldn't move them until we got to the stage where they were actually able to escape their cells and attack staff when we had minimum staffing at night. 

MR GRIFFIN:  And you supported Mr Reid's decision without having seen the reports relating to each of those detainees? 

MR REYNOLDS:  Sorry, I don't   I don't understand. What are you saying? 

MR GRIFFIN:  Well, you're the Commissioner. 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  I understood you to say that you relied upon the Superintendent of Banksia to make that decision about who to transfer and where to transfer them to?

MR REYNOLDS:  Based on the multidisciplinary review, yes.

MR GRIFFIN:  Yes. So, he was the decision maker, as far as you were concerned? 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  It's said elsewhere that Dr Tomison was the decision maker on that issue. 

MR REYNOLDS:  No, and my understanding   and you can confirm this with Dr Tomison when you speak to him   that his decision was to seek the gazettal of Unit 18 as a new potential facility. 

MR GRIFFIN:  Okay. I accept that. Why did you not become involved and why didn't you make the decision about any transfers, given the extraordinary nature of what was being proposed? 

MR REYNOLDS:  I think it was more appropriate for the person who was responsible for the detention centre who is, you know, designated as the Superintendent to take the information from the multidisciplinary review and make that decision. 

MR GRIFFIN:  What's the current philosophy which underpins how Banksia is managed? 

MR REYNOLDS:  So the current philosophy is to manage the young people in a safe, humane manner and to focus on providing appropriate supports to return them to the community. 

MR GRIFFIN:  Has that been the philosophy for some years? 

MR REYNOLDS:  The philosophy at Banksia has changed, from my understanding, over a number of years with different models of care being put in, but never fully incorporated into the operations of the centre. 

MR GRIFFIN:  Well, how has it changed to what you say the current philosophy is? 

MR REYNOLDS:  So, as, you know, we provided, there's a whole suite of work that's being done to develop an appropriate model of care that is therapeutic and supportive in nature. And whilst we're working through that, we've   with the support of the site, we've implemented a much greater focus on a multidisciplinary view of detainees and how they're managed. 

MR GRIFFIN:  Is the current philosophy also under review? 

MR REYNOLDS:  Yes, that's part of the model of care that we're focusing on. 

MR GRIFFIN:  And this is the trauma informed model of care? 

MR REYNOLDS:  That's correct. 

MR GRIFFIN:  Is that original work or is that model taken from elsewhere? 

MR REYNOLDS:  It's original work but informed by youth custodial experts from across Australia. 

MR GRIFFIN:  And is the work being done to date reflected in any document? 

MR REYNOLDS:  Yes, it is, which I believe we provided to the Commission. 

MR GRIFFIN:  When do you expect that to be finalised? 

MR REYNOLDS:  The model, as such, has been finalised and obviously we need to work out the implementation plan. 

MR GRIFFIN:  Can I ask you in relation to an unrelated topic, in the prisons or detention centre in Western Australia, do any of them have a hearing loop to assist people who are deaf or have impaired hearing? 

MR REYNOLDS:  I don't believe so. 

MR GRIFFIN:  Why not? 

MR REYNOLDS:  Look, it's probably a question I can't answer. It's not a question that's ever been put to me before. But I'll need to seek further advice. 

MR GRIFFIN:  But you have, in your words, an accurate idea of prisoners with disability. 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  That would include people that are either deaf or have hearing disability? 

MR REYNOLDS:  And so if somebody is identified with a hearing disability, obviously we provide, you know, the normal hearing aids and those sorts of supports that they would require. 

MR GRIFFIN:  Do you have a visual alarm in your prison? 

MR REYNOLDS:  Visual alarm for what, sorry? 

MR GRIFFIN:  For people that can't hear? 

MR REYNOLDS:  So there are no visual or audio alarms. If there's an emergency, staff ensure that prisoners   the detainees are able to, you know, move to a safe area. 

MR GRIFFIN:  Assuming they can find them?

MR REYNOLDS:  That's what my staff do. My staff are there to manage the safety and welfare of prisoners and young people in our care and ensure that they're, you know, managed   they're not just left to their own devices. There are always staff with prisoners and detainees. 

MR GRIFFIN:  Do all your prisons and Banksia have accessible cells for people that are wheelchair bound? 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  Are there sufficient such accessible cells in all facilities? 

MR REYNOLDS:  All facilities have cells, and detainees, obviously, and prisoners are placed in those where there's a need. It may mean that they need to move into a different unit if there's not an accessible cell available in the one they're in. 

MR GRIFFIN:  Just going back to the question of Deaf prisoners, if an announcement is made over a loud speaker that there's some emergency, how does that person receive that information? 

MR REYNOLDS:  So the staff will then ensure that all prisoners are moved out of an area. So, if we were evacuating the unit, they would put a call on the Tannoy saying, ‘Everybody leave the unit’. The staff then go and sweep the unit to check that everybody has heard, everybody has paid attention and make sure all those people make it to the rally point. 

MR GRIFFIN:  You would have heard my questions of Mr Reid and Dr Cooney in relation to the representation of First Nations people on staff at Banksia. 

MR REYNOLDS:  Yes. 

MR GRIFFIN:  Why is there no First Nations person in senior management or executive levels at a place like that when 80 percent of the detainees are First Nations? 

MR REYNOLDS:  I think both their answer was reasonable, that we are increasing the number of Aboriginal staff. I did, after hearing the numbers check. We're on about seven percent Aboriginal staff for Banksia Hill, but we have about 21 percent of staff who haven't advised whether they're First Nations or not. But, you know, working on the seven percent, and I'm happy to commit to employing an Aboriginal staff member as a member of the senior management team for Banksia. It fits within the model   the operational model that we were developing. So, I'm happy to make that commitment. 

MR GRIFFIN:  I thank you for that offer. When will we see that come to fruition?

MR REYNOLDS:  It will be by the first quarter of '23. 

MR GRIFFIN:  Chair, they're my questions. 

CHAIR:  Yes. Thank you. 

MR GRIFFIN:  Just wait there for a moment, Mr Reynolds, in case the Commissioners have any questions.

CHAIR:  Yes, Commissioner Mason, do you have any further questions? 

COMMISSIONER MASON:  Thank you, Chair. Thank you very much for your evidence this afternoon. I just wanted to follow up just on that last question around an Aboriginal person working in senior management. Because we're   because   and this is about Banksia Hill particularly. Because there are young people   young male and young women there and large numbers of Aboriginal young people, the opportunity of providing governance, management, culturally safe approaches, connections to communities, I raised with the previous witnesses about having a senior man and senior woman because of that issue of women's culture and men's culture and providing not just around management leadership but also around cultural leadership. You just mentioned about having one position there, is there a possibility of that being a different approach with having a male and female, just seeking your feedback and advice? 

MR REYNOLDS:  Certainly, there'd be   there's options for leadership positions to be both male and female. The final make up of what I would call the senior management structure, I would need to determine, you know, what   what we could achieve. I think it would be very good to have more than one First Nations person in a leadership   senior leadership role. Obviously, you know, I'll commit definitely to having one position that we'll classify 50D which must be an Aboriginal person and then identify what else   other improvements we could make. 

COMMISSIONER MASON:  Such as an identified position. Is that what we're talking about? 

MR REYNOLDS:  Yes. 

COMMISSIONER MASON:  Yes. And just one other question, Mr Griffin, to the witness. In relation to the operating philosophy, had First Nations people with disability, whether they're inside the prison system or external, have they been provided an opportunity to input into that operating philosophy or indeed generally people with disabilities? Thank you. 

MR REYNOLDS:  There's been a number of engagements with what I would call sort of youth custodial experts across Australia to provide us that advice. I'd have to really confirm exactly who with Disability or from Disability Services had been formally consulted but my understanding is it has. 

COMMISSIONER MASON:  Thank you very much.

CHAIR:  Thank you. Commissioner McEwin? 

COMMISSIONER McEWIN:  No. Thank you.

CHAIR:  Thank you. Just one question from me. I notice that Mr Reid said his position reports to the Assistant Commissioner for Women and Young People. Where does that person fit in the chain of command, as it were? 

MR REYNOLDS:  Sure, so Mr Reid reports to the Deputy Commissioner Women and Young People, and the Deputy Commissioner Women and Young People   Deputy Commissioner Ginbey reports to me and she's part of my senior executive.

CHAIR:  I see. Alright. Thank you very much. Thank you for your evidence today, and thank you for the information you've provided in writing to the Royal Commission. We appreciate your assistance. Thank you.

MR REYNOLDS:  Thank you. 

<THE WITNESS WITHDREW

MR GRIFFIN:  Chair, can we just have a short break and then we'll hear from Dr Tomison.

CHAIR:  Yes. Just so we can all be aware of that timing, how long do you think that is likely to be? 

MR GRIFFIN:  The break or his evidence?

CHAIR:  Let's take the evidence first and then we'll talk about the break. 

MR GRIFFIN:  I hope an hour.

CHAIR:  An hour. Now, how long do you want?  Just a few minutes?

MR GRIFFIN:  Yes. Five minutes will be fine.

CHAIR:  We'll take an adjournment for five minutes.

ADJOURNED 1.42 PM 

RESUMED 1.51 PM

CHAIR:  Yes, Mr Griffin. 

MR GRIFFIN:  I call Dr Adam Tomison to give evidence. He has already made an affirmation, Chair.

<ADAM TOMISON, AFFIRMED
<EXAMINATION BY MR GRIFFIN

CHAIR:  Thank you. Dr Tomison, thank you for coming to the Royal Commission to give evidence. Sorry to have kept you waiting for a little while. We do sometimes run behind schedule. Just so, you know where everybody is, we have in Adelaide Commissioner Mason and Commissioner McEwin. I'm in the Sydney hearing room. Mr Griffin, Senior Counsel Assisting the Royal Commission, is also, in the Sydney hearing room, and I shall ask him now to ask you some questions. Thank you. 

MR GRIFFIN:  Commissioners, Dr Tomison is the Director General of the Western Australian Department of Justice. He's provided two statements for this Public hearing. The first dated 24 August 2022, identifier WA.9999.0014.0001. This statement is in Hearing bundle C.1, tab 2 and the attachments to the statement are at tabs 3 to 35. Your second statement is dated 16 September 2022, identifier STAT.0629.0001.0001, appearing in Hearing bundle C.1 at tab 94. And the attachment AT1 is at tabs 95 to tab 103. 

Dr Tomison, to the best of your ability, are those statements I've indicated true and correct? 

DR TOMISON:  Yes, they are. 

MR GRIFFIN:  You're an internationally recognised expert in the prevention of child abuse and family violence, and the development of child protection and family support systems. 

DR TOMISON:  I think that's probably a fair statement. 

MR GRIFFIN:  It's taken from the government website so, I’m assuming so. 

DR TOMISON:  Yes. 

MR GRIFFIN:  You've been involved in the development of the National Child Protection Clearinghouse with the Australian Institute of Family Studies? 

DR TOMISON:  Correct. 

MR GRIFFIN:  You've been the Director General of Western Australian Department of Justice. Prior to that, you were the Director and Chief Executive of the Australian Institute of Criminology between 2009 and 2015? 

DR TOMISON:  Correct. 

MR GRIFFIN:  You also worked in the Northern Territory. You're an Honorary Professor at the Australian Catholic University. 

DR TOMISON:  I was an Honorary Professor at the Australian Catholic University. That appointment lapsed. 

MR GRIFFIN:  And you're a member of the Criminal Justice Working Group of the Royal Commission into Institutional Responses to Child Sexual Abuse. 

DR TOMISON:  Yes, I was a member of that group. 

MR GRIFFIN:  And in terms of qualifications, you've got a Bachelor of Science with Honours in Psychology. 

DR TOMISON:  And a PhD. 

MR GRIFFIN:  And a PhD at Monash University.

CHAIR:  What was your thesis in, if I may ask. 

DR TOMISON:  Basically it was a real world study following 300  child protection matters around agencies, including police and Child Protection to determine the reality of decision making and case management decisions around those cases for six months.

CHAIR:  Thank you. 

MR GRIFFIN:  And, Dr Tomison, do you recall giving an interview with the Channel 7 program Flashpoint on Sunday, 24 April 2022, broadcast on that date?

DR TOMISON:  I gave the interview earlier but, yes, I do. That is the correct date. 

MR GRIFFIN:  If a transcript of that interview can be brought up. It's in Hearing bundle D, tab 18. Bears the identifier of DRC.9999.0164.0001. Do you have a copy of that transcript in front of you or can you see it on the screen?

DR TOMISON:  I can't see it on the screen. I don't have a copy with me. Hang on, it's coming up now. Thank you. I just need to   a little bit bigger would be helpful, if I can get that. That would be great. Okay. Thank you. 

MR GRIFFIN:  What were the circumstances that caused you to enter into this interview? 

DR TOMISON:  Well, as the Commission would be aware, I took a decision in early July that we needed to gazette a unit at Casuarina adult male prison for the purpose of a youth detention facility. That caused, as you would expect, a lot of interest. We got a lot of media requests, some of which we did, some we didn't. We obviously made a lot of comments. And, essentially, we were asked to do   or I was asked to do this interview and after seeking advice from my comms team and others, I chose to do it, I guess, to some extent, to get on the record from the Department's perspective as to what had been happening and why I made the decisions I did. 

MR GRIFFIN:  Before I go to that interview, you've heard evidence, I presume, from the previous witnesses today. 

DR TOMISON:  Yes. 

MR GRIFFIN:  And you know I was exploring the decision to transfer the detainees from Banksia to Unit 18? 

DR TOMISON:  Yes. 

MR GRIFFIN:  Can I clarify, who ultimately made that decision? 

DR TOMISON:  That decision was mine. I can take you through the process, if you wish, but it was my decision and I then made contact with the Minister for Corrective Services, the honourable Bill Johnson MLA and advised him that I thought we needed to gazette the unit and the reasons why, and then we went through a process and subsequently on 20 July, I believe, 17 young people were transferred to Unit 18. 

MR GRIFFIN:  And were you the ultimate decision maker on the issue of the transfer of those 17? 

DR TOMISON:  Do you mean in terms of setting up the unit or in terms of the points you made earlier around who actually determined which young people should be moved? 

MR GRIFFIN:  The latter. 

DR TOMISON:  The Banksia Hill Detention Centre made the determination as to which young people should be moved based on their behavioural issues and other concerns at the time. And it was based on an assessment by a multidisciplinary team, which I believe Commissioner Reynolds also referred to. So they made the decision. Obviously I supported the decision in that I initiated the action in the first place. 

MR GRIFFIN:  Is it fair to say that you were consulted in relation to that decision? 

DR TOMISON:  I remember seeing summaries of the assessments done on the young people. A bit like Commissioner Reynolds indicated, I don't remember   I didn't retain a copy. I don't remember looking at them for a long period of time. I asked questions as to the criteria that were being used and then at the end of the day I endorsed a decision to transfer the young people. 

MR GRIFFIN:  What did you understand the criteria to be applied in determining who was to be transferred?

DR TOMISON:  Predominantly came down to behaviour, as you would be aware from the evidence we've given today and also, in statements, for quite a period of time there had been a lot of disruption at Banksia Hill, and that took the form of fence climbs, unit roof ascents, assaults on staff, self harm by the young people, and significant damage to cells to the extent that young people could actually then escape their cells. And what we were looking for was the individuals who had been significantly involved in those matters and who we felt needed to be managed in a more secure area for a period of time. 

MR GRIFFIN:  Just pausing there for a moment, Doctor, as you probably heard earlier in the day, the quality of my life partly depends on me being on good terms with the Auslan interpreters. They've indicated to me that they would appreciate if you could slow down in your response. I know you're experienced speaking publicly, but a useful guide is to take your normal speaking pace and halve it. It will probably come out roughly a suitable pace. Can you do that for me?

DR TOMISON:  I'll certainly give it a go. 

MR GRIFFIN:  Thank you. During the interview I referred to a moment ago, the interviewer was Tim McMillan, and he asked you about Hylton Quail's comments as President of the Perth Children's Court. And he referred to the comments, including a description of Banksia as ‘dehumanising, illegal and inadequate’. And you were asked how you responded. And you will see you responded:

    ‘Look, they're very strong comments by the judge and he's entitled to make those comments’.

When you said that, do you mean that you agreed with the comments or he simply had a right of free speech?

DR TOMISON:  I actually think it was both those things. The judge, as you would know, is entitled to make whatever comments he deems fit. You know, the courts are independent of government. They're part of a civil society. That said, I don't necessarily agree with all of his comments. I do think   I know   we all know Banksia was in a very difficult place at that particular point in time, a place that I didn't want it to be at, and so, to some extent, I agree with him, but I think he was a little harsh in other ways. 

MR GRIFFIN:  In which ways, in your view, was he harsh in his comments?

DR TOMISON:  I can't remember all the verbatim. He used, I think, the term ‘monster’ or we were creating monsters and some other things like that. And I thought that was perhaps a little uncalled for. That said, I did understand what he was trying to convey. I think what he was trying to convey was that the young people weren't being helped by the situation at Banksia, and we have an obligation, which I fully accept, that we need to look after young people as best we're able to and better prepare them for release and hopefully in desisting from criminal behaviour, if they have been convicted of such. 

MR GRIFFIN:  You indicated in your answer that you'd instituted a review to get a better understanding of what's been happening. Who conducted that review? 

DR TOMISON:  It was a review of what was happening with that young person, that particular young person that the judge had before the court. And I can't remember precisely who I asked to do it. I believe a number of staff inside the Women and Young People's Division of Corrective Services were asked to look at it, but I honestly can't remember anymore. There's been a lot happening. 

MR GRIFFIN:  Did you contemplate that review being conducted by someone outside the Department? 

DR TOMISON:  The first issue I was trying to resolve was how many hours the young person had spent in their cell and whether the figures that the judge had were accurate or fairly accurate, and for that, the Department could do that. Banksia's got a lot of oversight by external bodies at any rate, and I wanted to know was it as bad as was indicated or was it not as much of a problem. And what was determined after a little bit of time   I forget how many weeks now, couple of weeks I think   was that whilst we could quibble a little bit, essentially, the judge was correct in that the young person was spending way too much time inside his cell. 

MR GRIFFIN:  How much time was this young person spending inside the cell, according to those that advised you?

DR TOMISON:  In some days   it wasn't every day, but in some days I think in late January into early February, the young person was spending less than one hour out of cell on those   on some days. I can't remember precisely, but we can find out and pass that to the Commission, if need be. 

MR GRIFFIN:  Was this the first time you became aware of the particular situation of this young person?

DR TOMISON:  Of that young person and the issue of hours, that was   probably the judge's comments were the first time that I certainly queried it. That said, I was aware of a lot of lockdowns for a number of reasons inside Banksia Hill over the January/February period. At that time, the facility was what I subsequently described as a state of emergency in the sense that there were multiple critical incidents or code reds, as they're called, happening each day. They took the form of assaults on staff, self harm by the   by some young people, roof climbs, damage to units, damage to cells, and what it meant was the facility was locking down continually almost to try and allow staff to be freed up to deal with those incidents and to manage the young people involved.

And it wasn't one young person involved, it was multiple young people. That   the person we were talking about or the judge was seeing on that day in his court, that young person was involved in some of that too, from my recollection. So, I knew who he was in a sense that he was coming up in the incident reports that I get every day. 

MR GRIFFIN:  So each day you were updated about what was happening at Banksia in respect to assaults on staff, damage to property, and other related issues? 

DR TOMISON:  We have critical incident reports for   not just for Banksia Hill but for the entire Corrective Service environment. They're produced by an operation centre centrally and what they do is they are distributed to a wide range of staff and sometimes to outside of the Department, and they summarise what we call critical incidents. So, they're very serious incidents and they may involve an escape from lawful custody, they may involve a death in custody, they may involve, yeah, assaults on staff, assaults detainee to detainee or prisoner to prisoner. 

They may involve criminal damage all the way up to riots, and those incidents reports are updated as the incident changes, and I get those all the time every day that I'm on duty and also on the weekend   whenever I'm around, basically, as does the Commissioner, and it's an important way for me to keep track of the serious incidents that are happening in a particular facility. 

MR GRIFFIN:  Dr Tomison, it's important to remember that the documentary evidence is before the Commission and so I don't want to spend a lot of time in me repeating it or you reciting it, but, in summary, you received at least on a daily basis a report of exactly what was happening at Banksia? 

DR TOMISON:  I received, as I said, the incident reports.  They're specific incidents.  I also received briefings from the Commissioner and others, if not on a daily basis, on a probably every two days. But I would have spoken about Commissioner Reynolds on a daily basis at the worst of   probably in January, February, March about Banksia. 

MR GRIFFIN:  And did those reports or briefings specify the effect on individual detainees of what was happening? Particularly the fact that they were being kept in cells for long periods of time? 

DR TOMISON:  It would depend. Look, I could tell by the number of incidents I was receiving that the centre was locking down for a long period of time, and I actually raised that with, obviously, my senior staff because it's not good practice. Even though I might understand why it was occurring, it still wasn't good, and it was one of the pressures building on the Department and on myself to ensure we had Banksia working for optimally, and that means that we're able to unlock all the young people, that they get access to education, recreation, all the therapeutic supports, et cetera, and that wasn't happening certainly in the early part of this year and for quite a considerable period into the middle of the year as well until I made the decision about unit 1. So, I had those reports but I also discussed, and we had discussions about out of cell hours at different points. That wouldn't have been daily but I certainly raised it as an ongoing issue with my reporting from Corrective Services to me. 

MR GRIFFIN:  And had you been told in a briefing that there were detainees that were spending 23 hours a day in a cell, I presume you would have done something about that immediately. 

DR TOMISON:  There were relatively limited things that can be done about that circumstance when the centre was having so many incidents. That said, what I was more surprised by was   and it comes from Judge Quail's comments   and that particular individual was locked down as a result of staff shortage, rather than lockdowns as a result of needing to ensure the facility was safe and secure. I have powers, I guess, under both and you referred to earlier today the Supreme Court ruling about unlawful confinement based around staff shortages. 

That may be one element of what happened at Banksia which we've stopped, but, at the same time, we will still have lockdowns. If young people are harming themselves, destroying facilities, rioting or assaulting staff at different points, there will be lockdowns. 

MR GRIFFIN:  I understand that, Dr Tomison, but I'm really coming from the perspective of the detainee. It may well be that the reasons you advanced created the situation, but what   to what extent did you turn your mind to the effect this was having on individual detainees that were being locked away for 23 hours a day? 

DR TOMISON:  There's a number of areas with that. The first one is you need to understand why the lockdowns were happening, and whilst a young person at Banksia may have complex needs   many of them do, as is in the evidence   the reality is it's the behaviour of a cohort of young people was meaning the centre couldn't function adequately. Now, as part of my consideration of what was happening at Banksia, I certainly also considered what could we do to reduce the lockdowns and get the facility more stable and have the young people, if you like, acting in a way that allowed us to have the facility working the way it was designed, which was access to services, not in cells but outside of cells, all that sort of thing. 

So, I took   I would have had individual   discussions about individuals at certain points. My initial response was ceasing   ensuring the self harm incidents were responded to adequately and trying to cease those, but also trying to maintain a safe and stable centre. So, sometimes individual considerations come into that, but I've also got a broader consideration of the individual staff and the individual detainees not involved in specific incidents as well, and I tried to consider all of that.

CHAIR:  As a matter of interest, how old was the boy about whom the President of the Children's Court was speaking? 

DR TOMISON:  I think he was 14, Commissioner, but I honestly can't remember anymore.

CHAIR:  He was 14 years old and in a cell up to 23 hours a day for a period of 11 weeks? 

DR TOMISON:  I don't think it was 11 weeks. It was certainly a number of days in a period in January/February. But yes, he was locked down more than he should have been   that we would have liked him to have been, but there were reasons for that.

CHAIR:  I think you were asked about the 11 weeks in the interview, and I don't think you rejected the proposition that it occurred over 11 weeks. 

DR TOMISON:  Banksia Hill   and I'm aware of testimony given by other members of the Department today. To my mind, from September last year, September 2021, we started seeing a significant increase in incidents of varying sorts. The nature of those incidents actually changed over the course of last year, but that said, there were a complex needs group of young people, a cohort, if you like, who made it very difficult for us to manage the centre the way we would like. 

So, lockdowns for various reasons, but particularly because of critical incidents were occurring at a much higher rate than I would have liked I would say certainly from late September all the way up to the move of some young people to Unit 18 in late July at varying points. Now, the behaviour that was leading to the incidents changed. It was different at different points, and sometimes it was limited lockdowns. Sometimes it was a more   a longer period, depending on what was happening and how many incidents were occurring. But it was a sustained period which I described as a state of emergency. It was very difficult to manage, and whilst the staff, I think, did a great job at trying to be humane and trying to reduce lockdowns the reality was Banksia could not run the way it was meant to during that period. 

MR GRIFFIN:  Dr Tomison, to pick up on the Chair's question, it's my understanding that the young person to whom Judge Quail was referring was diagnosed with FASD. You understand that? 

DR TOMISON:  I'm not surprised at all. I would expect that, yes. 

MR GRIFFIN:  PTSD. Were you aware of that? And developmental disabilities. 

DR TOMISON:  Not surprising. 

MR GRIFFIN:  And irrespective of how long it was, but let's assume 11 weeks because you don't specifically reject that in the interview, that cannot be the best option, surely, for someone in that position? 

DR TOMISON:  What I say in interview isn't obviously sworn testimony. That said, I do agree there was a period of I'd say more than 11 weeks where we were locking down   

MR GRIFFIN:  Doctor, I want you to address my question. 

DR TOMISON:  I'm going to, Counsel.

MR GRIFFIN:  I want you to stop making long responses. Do you accept that if that young person suffered from FASD, PTSD and developmental disabilities, it was not the best option for him to put him in a cell for 23 hours a day for a long period of time. Do you accept that proposition? 

DR TOMISON:  I accept it.

CHAIR:  Do you also accept it's fair to describe it as cruel and unusual punishment? 

DR TOMISON:  No, I don't. I don't think it was a cruel and unusual punishment. We didn't do it to punish the young person. We did it because that was the only option we had. 

CHAIR:  Was the effect of it to be a cruel and unusual punishment?

DR TOMISON:  I wouldn't use that terminology. I don't think it was anywhere near ideal for that young person or any young person.

CHAIR:  It wasn't cruel and unusual punishment for a 14 year old boy to be locked up 23 hours a day   up to 23 hours a day regularly over a period of 11 weeks? You don't describe that as cruel and unusual punishment?

DR TOMISON:  No, I describe it as what I had to deal with at the time. 

MR GRIFFIN:  Would you characterise it as child abuse?

DR TOMISON:  No, I would not. 

MR GRIFFIN:  Even given your extensive history of working in that area?

DR TOMISON:  Look, I'm absolutely prepared to accept that it wasn't acceptable and it was not great practice to treat that young man in the way he was, in the sense he was locked up for way too long. Absolutely I accept that. But I had no other option for that young person until we re rolled Unit 18, and even then, that young person, if he's in custody   and I don't think he is at Banksia or at Unit 18 at the moment, but I don't know for sure   that was   what I've got is what I've got to deal with. I would prefer that a young person like that would be housed elsewhere in a different sort of facility. I don't have that option. 

MR GRIFFIN:  Well, when you became aware of what happened to that young person and the comments of Judge Quail, what did you do? 

DR TOMISON:  Firstly, I rang Commissioner Reynolds and we discussed that with some of his team around. As I said, I wanted a review done. Are these figures correct because they're not acceptable. We did the review and we found the numbers were pretty much close enough that the judge was, you know   he was in the ballpark, if I can put it that way. So, that was the first thing we worked out. Then we looked at   from my recollection, we looked at what we could do to try and improve things, not just for that young person but how Banksia was running. 

MR GRIFFIN:  Yes, but what did you specifically do for this young person when you became aware of that information?

DR TOMISON:  Apart from what I just described, I can't recall what else I did specifically. 

MR GRIFFIN:  Did you contact the Minister and say, ‘Look, this is unacceptable. We need an intervention at ministerial level, we need whatever resources are required to stop this immediately’? 

DR TOMISON:  I certainly briefed the Minister and his team on this particular matter, as I do with all significant matters at Banksia and other parts of the environment that I operate. 

MR GRIFFIN:  And what did the Minister say when you briefed him about this young person? 

DR TOMISON:  Apart from not being happy with the situation and needing it to be resolved in some sense, I can't recall precisely what he said.

CHAIR:  Why was it not an option to place this young person in that unit, the acronym for which I've forgotten?

MR GRIFFIN:  EMYU.

CHAIR:  EMYU?

DR TOMISON:  That individual   I can't say whether we referred him to EMYU or not. What I can say is we referred a number of young men  

CHAIR:  No, no. Please do attend to my question. 

DR TOMISON:  I'm trying to. 

CHAIR:  You're not, in fact. What was preventing this young person, the 14 year old with all the conditions that have been described, being placed in EMYU in order to give him the support for some fairly obvious acute psychosocial condition? 

DR TOMISON:  One, the decision is not mine; it's the psychiatrist who runs that facility. Second, there's a threshold in terms of getting into that facility and there are 10 beds in total. It's very rare to get a young person from Banksia Hill into that facility. Third element would be is it a mental health concern or a cognitive impairment? Unless it's a mental health concern, often we get told the young person is not suitable for that environment and, therefore, they stay with us.

CHAIR:  Did you hear Dr Cooney's evidence today where, as I recall, she said that if a detainee with acute mental health needs was so, assessed, they could be placed in EMYU, no problem?

DR TOMISON:  Yes. I take issue with that evidence because, from what I'm advised from looking at this over the last year, in particular, very few of the Banksia young people have actually managed to get into EMYU. So, either they didn't apply for this person   and I can't tell you right now whether they did apply or not. What I can say is very few end up in that unit, and if they do go, it's for a very limited period of time.

CHAIR:  Yes. Thank you. 

MR GRIFFIN:  If this wasn't cruel and unusual, does that mean that this sort of thing was happening regularly?

DR TOMISON:  As I've indicated, there were a lot of reasons why people are locked down in cells. 

MR GRIFFIN:  Was it happening regularly?

DR TOMISON:  Yes, it was. There was regular lockdowns of people in January and February this year. 

MR GRIFFIN:  Given the fact that we understand that one of the precursors to this was staff shortage   you heard the evidence from the previous witness   what can be done to bring in staff on an urgent basis rather than wait for a long recruitment process? 

DR TOMISON:  Commissioner Reynolds made the point, I think, that we had actually asked for volunteers, prison officers to supplement the Banksia Hill team to allow youth corrections   Youth Custodial Officers to actually focus on the young people. That's one thing we did. Allied Health staff, again, we could   and we did seek opportunities to bring in NGOs as well as Allied Health into the facility. In terms of uniformed officers, unless there's some form of training involved, it can be quite difficult just to sort of bring someone in. 

That said, I don't think Commissioner Reynolds made the point that we are also looking at a bridging course in case a prison officer or equivalent or a youth justice officer, which is a Community Corrections worker who works with young people on the outside, wanted to make a transition to be a YCO, so a bridging course that would be a shorter period rather than 12 weeks. We've been looking at that too. And vice versa around YCOs who may wish to become prison officers, assisting them with that transition. So, we're doing that. And you also heard that a temporary allowance was put in to match salaries to encourage young   Youth Custodial Officers to stay in the system as well. 

MR GRIFFIN:  You told the interviewer at Channel 7 you had an obligation to make sure the facility is run safely, staff are safe and the young people are safe. Is your understanding of keeping a young person safe locking them in a cell for 23 hours a day? 

DR TOMISON:  Well, they're safe in the sense that they're not actually walking through broken glass. They're safe in the sense that they're not actually get into trouble by, for example, by climbing fences and falling off them. Is it ideal? No, it's not.  And I think that I've conveyed that I don't think it's ideal. 

MR GRIFFIN:  You have conveyed that, but it seems from your answer that that is, in your definition, keeping them safe. 

DR TOMISON:  Can I explain just what was going on at Banksia. I'll try not to be too long. But if staff are being assaulted, if young people are self harming in a usual unit at Banksia Hill, if they're jumping on fences and breaking things on roofs and potentially falling off, these aren't safe behaviours for the staff or for the young people themselves. If the existing units aren't able to assist us to monitor the young person's behaviour so they don't hurt themselves and they're not safe because they can be dismantled because the young people of a particular cohort has taught themselves and shared that information as to how to pull apart a cell which has been used for 25 years   reasonably successfully in the sense that it wasn't breached   these things mean that you have to do something else. 

You have to put a young person somewhere safe in the facility you've got. That's my answer to that. I can't   I can't give you anything else. That was part of trying to keep these young people and the rest of the facility safe was putting them somewhere where they couldn't break out of and then work on a solution that would be better than what that option was. 

MR GRIFFIN:  You also told the interviewer that about 60 to 67 staff members a day would be about right and yet, at the time, there was only between 30 and 40. 

DR TOMISON:  That's correct. 60 to 67 is around, I think, a full shift for uniformed officers at Banksia and    

MR GRIFFIN:  Staff shortages at Banksia had been a problem for a long period of time, had it not? 

DR TOMISON:  From my recollection   and I know you've asked a question earlier about attrition rates   there was a reduction in available staff from around   I'm going to say September last year which, to me, coincided with an increase in incidents. Not surprisingly, when a flurry of incidents occur, some staff will have workers compensation claims, some will take leave, and there was a reduction in staff from that period.

And that continued over the period of   in more intense sort of incident numbers into sort of early 2022. We also at that point, as I think was referred to earlier, had run three classes and we had about I think   don't quote me. I think it was around 40, 40 to 50, maybe 60 staff come on board, new staff, by about February/March this year. But we also had additional attrition going forward. So   and we're running more courses to try and keep up. 

MR GRIFFIN:  But there had been a staff shortage problem for some time at Banksia? 

DR TOMISON:  There's certainly been some staff shortages. I don't remember it being a critical issue prior to when we started seeing the increase in incidents. I'm sure there was certainly not a full complement of staff at different points over the previous years. Absolutely.

MR GRIFFIN:  Based upon your inquiries when was the last time Banksia had, to use your expression, a full complement of staff? 

DR TOMISON:  I don't know. 

MR GRIFFIN:  Isn't that something important to know? 

DR TOMISON:  I don't actually think it is. I'm more interested in, going forward, having the complement of staff. The more staff I can get, the better. I do actually want a full complement. There have been some days, I think in January/February, we actually had the 60 staff, but, generally speaking, we were way below that. I don't like it but that's the reality of what we were experiencing. 

MR GRIFFIN:  You heard the questions and answers from the previous witness about exit interviews. Do you accept that in recent times there's been a high attrition rate of staff at Banksia, do you not? 

DR TOMISON:  I do. 

MR GRIFFIN:  That's risen to approximately 25 percent annually? 

DR TOMISON:  I don't know that that's correct, but I'm happy to accept it. I haven't actually checked that myself, but I'm happy to accept it. 

MR GRIFFIN:  Let's assume that's correct. That's an unacceptably high attrition rate for an organisation, isn't it?

DR TOMISON:  I agree. 

MR GRIFFIN:  Would you agree that such an attrition rate will tend to degrade the culture and level of experience of the staff working? 

DR TOMISON:  I'd say that's a fair point. 

MR GRIFFIN:  Why has not more effort been made to ascertain why staff have been leaving? 

DR TOMISON:  Well, Commissioner Reynolds talked about exit interviews and the small proportion of staff who choose to fill them in. He's talked about the managers asking why some of them may go. But, at the same time, we've also got information through the site and it would be through the management, not through individuals, and I've also seen things like workers compensation claims and other things from staff who have subsequently left Banksia which indicate a degree of trauma from the experiences they have had working at Banksia, and that's trauma in various ways. 

MR GRIFFIN:  So, as of today, what do you understand to be the primary reasons why staff have left the unit? 

DR TOMISON:  Firstly, the psychological trauma they experienced in managing the critical incidents and that significant increase over the last year or so. Secondly, the physical and other assaults they've experienced as staff by detainees. Thirdly, I think the pressure, to some extent, of trying to manage that facility with less staff than we would have liked, but also, in terms of the complex needs of the young people who were present.  And I think also   and this is my personal view   most of our staff rightfully have the view they want to operate a therapeutic service and they recognise that we couldn't do that in the environment we've been working in up until I started to gazette Unit 18 to try and resettle Banksia. 

MR GRIFFIN:  Do you say that before the troubles at Banksia, a suitable therapeutic environment existed? 

DR TOMISON:  I don't think it was perfect by any means, and the Inspector of Custodial Services reports would say that, but I do think it was generally okay. It wasn't perfect, but it was okay.

CHAIR:  Dr Tomison could I ask you   remind you again, please, just slow down a little, thank you. It will help our interpreters. 

DR TOMISON:  Sorry. 

MR GRIFFIN:  Have you been back through the various reports of the Inspectors of Custodial Services. 

DR TOMISON:  At different points I have. Not all of them today but I've been through, obviously, the show cause notice at Christmas 2021. I've been through the report that came in just before the difficulties and the issues we faced in late 2021.  And I'm aware of, from previous reading, of some of the earlier reports from Professor Morgan. 

MR GRIFFIN:  And from your reading of those reports, have there been recurrent issues raised by the previous Inspector and the current Inspector? 

DR TOMISON:  Yes. 

MR GRIFFIN:  And do you accept that some of those issues have not been adequately addressed? 

DR TOMISON:  Yes. 

MR GRIFFIN:  Why? Firstly, indicate the issue and tell the Commissioners why that issue has not been adequately addressed. 

DR TOMISON:  Well, the model of care is one of the key areas where the previous Inspector and the current Inspector have both pointed out they didn't think it was fit for purpose. They didn't think   I think Professor Morgan had indicated he didn't feel we had engaged staff enough in the process, and I think he was right with that. A number of attempts were made to improve the model of care, which I don't think have gone particularly well, which is why we've had to reinitiate a model this year to try and get it right finally, and I hope we have done that, but it's early days. 

MR GRIFFIN:  Why do you think previous attempts to modify the model of care have been unsuccessful? 

DR TOMISON:  I don't think they engage adequately with the staff at Banksia, for one, and also one can argue with some of the young people who had either been in Banksia or who had left Banksia and trying to get the   sort of the user's experience, if I can put it that way. I think that's an important element. But I think the staff   because staff told me this, and I have gone out to Banksia a few times, that they felt they didn't own the model and that was hindering their ability to, I guess, enact what we wanted. There was also concerns around whether the model, one of which was the Missouri model, which is an American model, was actually fit for purpose for the site itself. 

MR GRIFFIN:  And the task force that Mr Reynolds referred to, that is looking at the model and the philosophy of Banksia? 

DR TOMISON:  I might have missed the task force reference but there has been   there has been a group within the Department and also consultants brought in to work on that model of care and the philosophies behind it. The implementation will be the key thing. 

MR GRIFFIN:  Who's consultant you've brought in?

MS DOWSETT:  Nous. Nous, Nous Consulting. 

MR GRIFFIN:  And is that a particular person within that group?

DR TOMISON:  Tim Marney was the person   the ex Mental Health Commissioner of Western Australia.  He led the team. I can't recall the names of the others involved. 

MR GRIFFIN:  And where is that work currently up to?

DR TOMISON:  It's close to being finished. There is a further draft report. There's some further stakeholder consultation going on, and what I'm looking to do, then, is see how the implementation of that model will be enacted. 

MR GRIFFIN:  Can you indicate to the Commissioners what the principal characteristics of the draft new model are? 

DR TOMISON:  Well, there are a number of, I guess, tenets, and I don't think, in many ways, they're things that are very different from previous models, but it's how they will be enacted, I think, will be the key thing. There are things like trying to provide a therapeutic environment, trauma informed work. And I know that's been discussed earlier today but the intention of recognising the traumatic experiences that young people will have experienced and how that will affect their behaviour and how we should assist them when they're in custody with the Department of Justice. I can   I'd have to refer to my notes for the other key tenets but they're not unusual ones in terms of the model. The implementation will be key. 

MR GRIFFIN:  Does the new model also, include an examination about whether existing management should remain in their positions? 

DR TOMISON:  No, not formally. We will look at how the management structure, I guess, facilitates the model of care. That would be   that would be the main thing. 

MR GRIFFIN:  What about the suitability of individuals to continue in senior roles? 

DR TOMISON:  That's not something we're contemplating at the moment. 

MR GRIFFIN:  Why not? 

DR TOMISON:  Because I think we already made one change in Superintendent   Superintendent Reid said, I think, November last year, and that was to put in – one, to give a change to individual who had been there for some time and, secondly, because he wanted Superintendent   Superintendent Reid and his skills to be brought into the picture. So, I think it's fair to say we look at the structure at Banksia and other facilities to try to get the best out of it on a regular basis, but it's not going to be a formal review. 

MR GRIFFIN:  I want to raise a proposition for your consideration and comment. Is it possible that senior staff that have worked for many years in the custodial setting are wedded to a model which has the good order of the facility as the paramount consideration and might find it difficult to shift with the times? 

DR TOMISON:  That's a fair point. I've seen that in other areas of Corrections in the years I've been in this role. There are also, on the flip side, a lot of staff who are quite innovative and want, if you like, the best for the young people in their care and actually want to innovate. So, look, you're right, there is a consideration around staff of all levels in making sure that they understand the message and they embrace it and they will deliver the service required. I think that's a fair point. 

MR GRIFFIN:  They have to believe it, don't they? 

DR TOMISON:  And that's one of the reasons why we wanted the staff more actively involved in developing the model because in the past, one of the comments was, as I said earlier, ‘We weren't consulted. We don't own it’. And that's my paraphrasing. 

MR GRIFFIN:  I want to put another proposition for your consideration. When one looks globally at the history of Banksia, there's been no effective solution to understaffing. This has had an effect on education programs, therapeutic support and a range of other things for detainees. There's no effective access to acute mental health treatment. There's no effective screening mechanism.

CHAIR:  Well, I think there are a number of propositions. Do you want to break them up? 

MR GRIFFIN:  No, I just want   the proposition I want to put to you is, isn't the system broken? Doesn't it need a root and branch review, rather than tinkering at the edges in relation to Banksia? 

DR TOMISON:  I'm just considering what you said. I think the situation we've found ourselves in does lead itself to doing something different, if we can. I don't think over the course of the 25 years of Banksia Hill   and I've only been here for six, roughly, but I'm aware of some of the history going back to 2010. I don't think it's always been broken. I don't think all of the problems you identify were always massive problems. I do think they've come across at particular risk periods where they have been more salient, I guess, as issues to consider. So, it comes and goes. Banksia can be stable for a few years, and I think the Inspector of Custodial Services says this, and then we have a major issue, a riot, or what we found ourself in. Look, I think if we can do things better, I would certainly want to. 

MR GRIFFIN:  Because in relation to the detainees that were transferred to Unit 18   and we haven't seen the assessments that led to that decision   a number of those 17 were then released or presumably moved into the adult prison population, but, in any event, didn't return to Banksia; correct? 

DR TOMISON:  You're correct. Into the adult prison population, I don't think has occurred. It's been more released to freedom. Some have gone back to Banksia and then released to freedom after a period in detention there, either remand or sentenced. But, yes, there's been a change. There are currently 10, of which I think two have been there since we gazetted the youth detention facility and moved people on 20 July. 

MR GRIFFIN:  So since the initial transferring, eight new people have been transferred. 

DR TOMISON:  Yes. 

MR GRIFFIN:  Now, they weren't part of the so called cohort you referred to that were causing all the problems? 

DR TOMISON:  They were   

MR GRIFFIN:  They were subsequent, weren't they? 

DR TOMISON:  They were certainly subsequent, but they were certainly part of a cohort, though, on the outside of young people who may come into Banksia on a fairly frequent basis who we had experience of during the period from September last year through till July this year who may have come back in. They all went to Banksia and then, based on behaviour, they were assessed whether they needed to be sent to Unit 18 for a period of time. It would be more than   we've got 10 there today but we've had different numbers at the Unit 18 facility day to day. It varies and it changes quite quickly. 

MR GRIFFIN:  Dr Tomison, don't we get into a situation of chicken and egg? Somebody has severe disabilities. They get placed in isolation or some form of restriction. Their conduct may then reflect the disability. That, in turn, is interpreted as affecting the peace and good order of the management of the centre. That leads to alerts which leads to their transfer. My question is: if that characterisation is a reasonable one, in your opinion, how do we break the nexus? 

DR TOMISON:  Can I say there are a lot of young people at Banksia who haven't gone to Unit 18 who have similar levels of complex needs. Only some have engaged   over the last year or so have engaged in behaviour that's been very difficult to manage on a consistent and regular basis. So I think that's the first thing, is not every young person just because they have complex needs will be considered to go to Unit 18. Not every young person at Banksia Hill has engaged in the level of ongoing behaviour that you're talking about. 

So, I understand your chicken and egg comment, but it doesn't apply to lots of other young people. It applies to a particular cohort, and that will change over time as young people are released to freedom and then may potentially come back into Banksia. 

MR GRIFFIN:  But if one labels them as part of a cohort, it then becomes quite inevitable what their fate is, doesn't it? 

DR TOMISON:  Well, it depends on whether you're actually saying this, okay, this young person here is part of this cohort. Cohort is also a shorthand which I'm using and have used before to identify a group of young people, the members of which may change who are very difficult to manage and have been very difficult to manage and who usually have complex needs. I'm not labelling the individuals who may come into Banksia as a starting point. Now, obviously, you've heard there are assessments done at Banksia for each young person who comes in, but it's behavioural as to whether they end up being considered for Unit 18. I don't think it's a preordained label or, if you like, action. 

MR GRIFFIN:  But your defence of the decision to transfer the Unit 18 was very much based on a characterisation of these individuals being part of a cohort which didn't   not only related to their conduct in Banksia but your understanding of a conduct in the community before they came to Banksia? 

DR TOMISON:  That's correct.

CHAIR:  With the eight that Mr Griffin referred to that have gone to Banksia after the time we were talking about   and I think there may have been more than eight because some have come in and some have gone   were those eight all responsible for serious acts of disruption? Or was there some element of preventative measures being taken about a possibility of them engaging in such conduct? 

DR TOMISON:  Whilst we're aware of a young   if a young person comes into Banksia Hill and we've had that young person before on a number of occasions and they've been involved in serious incidents, we would know that, clearly. That isn't necessarily why they'll end up at Unit 18. It's not   it's not the primary reason. It comes down to current behaviour and can we manage them effectively without disrupting their education and other therapeutic experiences.

CHAIR:  Are you able to say that all of those who were transferred to Banksia after the initial cohort of 17, that all of them were transferred because of their behaviour after their latest term of incarceration? 

DR TOMISON:  I can't say that because I haven't got that detail in front of me.

CHAIR:  Is it possible that some of them were transferred because of their conduct prior to their latest incarceration? 

DR TOMISON:  It depends if you include conduct in the community prior to entering Banksia.

CHAIR:  Yes, I'm including that.

DR TOMISON:  In that case, if a young person has, yes, been involved in an incident which has led them to come into Banksia and it's quite significant, that young person   and I'm talking about quite dangerous. That young person may potentially have gone to Unit 18 on that basis. The majority of the young people who are sent there is because of issues inside Banksia as in  

CHAIR:  I understand, but there are some who are sent to Banksia because of concern about what they might do in Banksia, rather than what they've actually done in Banksia? 

DR TOMISON:  I can't swear that's not the case, so, I’m going to say it's a possibility. 

MR GRIFFIN:  And in addition to that, Dr Tomison, a number of those people in Banksia are on remand. So, what they've done in the community is only an allegation. It hasn't been the subject of a determination? 

DR TOMISON:  That's true, but some behaviour which may involve the Department staff themselves where it may or may not lead to a criminal conviction but their behaviour was quite dangerous regardless. 

MR GRIFFIN:  But, nonetheless, you can understand, can you not, there's a difference between basing a decision upon a determination of an independent body, a court, as opposed to relying upon information from police or others as to an allegation of what somebody may have done. 

DR TOMISON:  I don't   I'm not going to get into, obviously, individual matters but there's one I'm thinking of which was quite a significant incident, and that young person has not had his day in court in terms of being determined whether he's guilty or not guilty or equivalent. That said, I'm assuming   and I could be wrong. I'm assuming the behaviour as he was being taken into custody would have played some part of the assessment of that young person and where he was then housed. 

Now, he started off at Banksia Hill. I'm aware he was transferred to Unit 18. I don't know the detail without checking as to what factors were taken into account, but I would expect that some of the behaviour leading up to his   as part of his journey into custody, that would have been part of it. But I'm not saying he didn't do things inside Banksia that would also be concerning. But I honestly can't tell you definitively. 

MR GRIFFIN:  But, nonetheless, the conduct of the person prior to coming to Banksia was a relevant consideration in your decision? 

DR TOMISON:  Look, it wasn't my decision. But I'm certainly happy to back the Department and Banksia Hill on making it, and I'm aware of, as I said, that young person's situation, and I think it was quite a serious incident and if that was taken into account, I would think it was a reasonable thing. 

MR GRIFFIN:  Can I take to you paragraph 27 of what I'll describe as your second statement, which is the one of 16 September 2022. You refer there to the Inspector of Custodial Services commencing an inspection of ISU at Banksia. 

DR TOMISON:  Correct.  Yes. 

MR GRIFFIN:  He issued a show cause notice. 

DR TOMISON:  He did. 

MR GRIFFIN:  Under his Act. And he expressed the view that he formed the reasonable suspicion that there was a serious risk to the care or welfare of detainees' health in the ISU at Banksia and, secondly, that the detainees were being subjected to cruel, inhuman or degrading treatment in the ISU at Banksia. 

DR TOMISON:  That would be his consideration, his   his comments, yes. 

MR GRIFFIN:  That was a suspicion he formed. Did you accept that suspicion that he outlined in his report in the show cause notice? 

DR TOMISON:  I think I certainly accepted there's a serious risk to the care or welfare of detainees because I'd been briefing the Inspector for some months prior to that around what we were trying to do to reduce tensions at Banksia. 

MR GRIFFIN:  I'm particularly interested in your comment in relation to point (b). 

DR TOMISON:  I was getting to that.  I didn't   yes, I can't say I spent a lot of time on his language. My concern was is there a serious risk to the care or welfare, and that was really how I framed it. And I guess we're back to definitions on how I feel about the treatment given out at Banksia. Do I put it to you it's best possible? Absolutely not. Would I have called it cruel, inhuman or degrading? I wouldn't have, but I certainly accept it wasn't acceptable and we needed to do something about it. 

MR GRIFFIN:  You understand he's picking up language which appears in international covenants, wouldn't you?

DR TOMISON:  Yes. 

MR GRIFFIN:  And you'd be familiar with those from your previous work. 

DR TOMISON:  Yes, I haven't read them for a while but I'm familiar with them, for sure. 

MR GRIFFIN:  So those terms, cruel, inhuman, degrading, are not novel terms to be used, are they?

DR TOMISON:  No. 

MR GRIFFIN:  And they're used in some international instruments as a benchmark to try and measure treatment against?  You're nodding. You agree? 

DR TOMISON:  Yes. 

MR GRIFFIN:  Do you accept that detainees in Banksia were being subjected to cruel, inhuman or degrading treatment in the ISU? 

DR TOMISON:  It's not language I would use but I will accept it. 

MR GRIFFIN:  And you would accept that's a very, very serious conclusion to reach, isn't it? 

DR TOMISON:  Yes. 

MR GRIFFIN:  A conclusion that requires an immediate response from the perspective of the detainee to relieve them from that situation? 

DR TOMISON:  Yes. 

CHAIR:  Do you understand, I take it, that that language is also, apart from other international agreements, in the Convention on the Rights of Persons with Disabilities? 

DR TOMISON:  Sure. I accept that. And it's not like we were sitting on our hands trying not to do anything. I'll just say that.

CHAIR:  I don't think my question implied that, but carry on, Mr Griffin. 

MR GRIFFIN:  Dr Tomison, we've also heard evidence that approximately 70 percent of the population of detainees in Banksia at any one time are on remand? 

DR TOMISON:  Correct. 

MR GRIFFIN:  You would accept that that means that they haven't been convicted of   

DR TOMISON:  Correct. 

MR GRIFFIN:    whatever the allegation is against them. 

DR TOMISON:  Certainly. 

MR GRIFFIN:  Do you have a different view in relation to detainees on remand as opposed to detainees who have been sentenced? 

DR TOMISON:  In what sense? 

MR GRIFFIN:  Well, Mr Shepherd was drawing a distinction  

CHAIR:  It wasn't Mr Shepherd. 

MR GRIFFIN:  Sorry, Mr Reynolds was drawing a distinction between the behaviour in his experience of prisoners as opposed to remandees. Let me ask you that question. Are you able to comment about whether you believe there is an empirical distinction between the behaviour of sentenced prisoners and the people on remand? 

DR TOMISON:  I do think Commissioner Reynolds   and I will get to the empirical in a minute, but I do think Commissioner Reynolds is correct in that young people on remand or adults on remand, for that matter, there is more instability in their circumstances and that can lead to the person involved feeling not sure what's going to happen next and what their future is and giving them, if you like, an understanding of where they're up to. 

In terms of empirical evidence of it, I haven't got that in front of me. We can certainly seek some. I think you'll find there is a distinction between what is provided, certainly in the adult system to remandees versus sentenced prisoners and it does affect their classification and other things. In terms of young people, a young person on remand at Banksia Hill on average spends about 13 days at the facility. Now, it's longer than that. That's the average. Some will be longer. Some will be much shorter because they are there because of things like appropriate accommodation wasn't available or something else is happening in their circumstance which precludes bail for a period of time, but often they're out very quickly. 

Sentenced young people, as you said, now about 30 percent of the population at Banksia in particular. That's changed a lot in the last 10 to 15 years. And they're there for, I think, an average of 130 days, so again you will see a stability of the young person, I would expect   it's not empirical but I would expect   in the sense that they know they're there for a particular period of time. They have an end date. But we have the majority of young people, as you've said, who are remandees who are there for short periods but they may come back for a number of short periods over the course of years. 

MR GRIFFIN:  And those remandees may be less familiar with how the centre operates on a daily basis than sentenced detainees?

DR TOMISON:  Well, again, half of the young people who come to Banksia don't come back, that's good. There's too many that do come forward. I would have thought that once you've done a period of time at Banksia the first time, on remand or sentence, you would have an idea of the regime. That would obviously help a young person acclimatise better on subsequent visits.

CHAIR:  When you say ‘half don't come back to Banksia’, does that take account of those who may leave Banksia but then find themselves later on in the adult prison system? 

DR TOMISON:  The period of time that was used for that KPI, key performance indicator, is two years, so a two year return to Banksia. You're correct, Chair, that young people may come back if they're coming in at a   let's say the age of 14. They may come back at the age of 17, in which case that figure wouldn't be   wouldn't hold.

CHAIR:  I'm thinking, for example, of a 16 year old who's in Banksia and then leaves Banksia for one reason or another, but then three years later is back in the system because he or she is imprisoned in Casuarina or wherever? 

DR TOMISON:  I haven't got those figures, but there is empirical research in Australia around that. The New South Wales Bureau of Crime Statistics and Research did a piece, as did a cohort study in Queensland at Griffith University. Both indicated if a young person spends time at a youth detention facility   and I think they used Queensland and New South Wales data rather than Western Australian data but it would probably still hold, I would suspect   there was quite a strong indication   a significant probability a young person would spend time in an adult facility at some point. 

MR GRIFFIN:  Mr Tomison, I also want to ask you about the Supreme Court decision of VYZ. I take it you've read that decision? 

DR TOMISON:  Yes. 

MR GRIFFIN:  As I've asked previous witnesses, what was your take on the decision of Tottle J in terms of your position and how you reacted to it? 

DR TOMISON:  My reaction, I guess, was twofold. One was if we go by the full, I guess, you know, the meaning of the Act or the terms of the Act, it would be very hard for us to manage Banksia when it's not a settled facility. Second element was around the nature of the use of long confinement or limited out of cell hours, and by that I mean the concern was around staff shortages leading to the lockdowns, and that was unlawful and I accept that, and obviously we'll work very hard to avoid that. 

But it didn't preclude me and I have obligations under various legislation, including Work Health and Safety, that if the safety and the security of the facility requires lockdowns, that I can still use those. Now, that doesn't mean I can be deliberately abusive or use terms that you may wish me to use or that I can just lock kids down because I feel like it, but if we have multiple incidents occurring over the course of a day, then young people are going to spend time in cells more than I would like and less than we would expect for the system. That's what I took out of it. 

MR GRIFFIN:  Similarly, you would have heard my questions concerning the Sentencing Act and access to pre sentence reports. Did you only become aware of the effect of section 4  

CHAIR:  24. 

MR GRIFFIN:  24(4a) today? 

DR TOMISON:  I was not aware of an issue for our staff accessing those reports until I heard the testimony of Dr Rowland today. It had not been raised with me and I was unhappy to hear that. That said, I also heard what you said, Counsel, around the other part of the Act, and I sought advice from my policy team around what was current practice. And so, at the moment, those reports are available to our staff, but there are still issues around the provision of information to some of our consultant staff who may not be employed by us and how they can access it. 

There have also been matters raised, if I can just refer to my notes, in terms of a Coronial recommendation made into the death of a person in 2019 about the release of court ordered medical reports to medical and nursing staff treating remand or sentenced prisoners, and we are looking at how   what the impact of that would be and how we might do an amendment to the Sentencing Act. There have also been considerations around the flow of information between youth justice and adult custodial services in the context of young people who, as the Chair said, may move into the adult system. 

So, I wasn't aware of the specific issue that was raised and I was not aware of the fact we were relying on 2014 advice from the State Solicitor, as it's now called. But I was at least happy to hear that, in fact, that impediment for our staff accessing those records was found not to be correct and at least they're getting in it and getting those records. 

MR GRIFFIN:  So, you received legal advice from the State Solicitor but also from the legislative group in your Department?

DR TOMISON:  Predominantly, the State Solicitor is the port of call because they're the lawyers for the government. The legislative review section of my Department, whilst it has lawyers in there, they're more of a policy side so I will use them as the vehicle to get me the advice, if I can put it that way. 

MR GRIFFIN:  Your background would indicate that access to those pre sentence reports, particularly from specialists, would have been invaluable in dealing with certain detainees. 

DR TOMISON:  Agreed. 

MR GRIFFIN:  Can you explain why Dr Rowland and others appeared to be under a misapprehension as to what the powers of access were? 

DR TOMISON:  I can't really, apart from saying   and Dr Rowland now   obviously she heads our Health area. Day to day, she's not as active in case work as she would have been because that's not her role anymore. I'm hopeful that the sites where we're actually dealing with people in our custody, that they were accessing the reports, but I can't guarantee it without obviously seeking further advice. So, it may be on that basis that Dr Rowland   it hadn't been, if you like, a salient issue for her as much, but I honestly don't know. It surprised me. I was not aware. 

MR GRIFFIN:  Can I take you to paragraph 51 of your second statement. If you can just read it to yourself briefly.

DR TOMISON:  Okay. 

MR GRIFFIN:  You will see there that you say:

    ‘Particularly in relation to the recidivist young offenders, they often present with behavioural, psychological and psychiatric conditions and cognitive impairment, hence the importance of treating young persons like those holistically’.

DR TOMISON:  Yes. 

MR GRIFFIN:

    ‘Too often previous attempts made to engage the young person and their families have failed or been ineffective, and they end up as high needs young people for relatively brief periods at Banksia’.

DR TOMISON:  Yes. 

MR GRIFFIN: 

‘Where the unrealistic expectation is that their complex issues will be remedied’.

DR TOMISON:  Yes. 

MR GRIFFIN:  Who holds the expectation that complex issues will be remedied by Banksia?

DR TOMISON:  It's my view there's a general perception that when a young person is in care, the understanding how the systems work, that we will fix   inverted commas   some of the issues young people have that they're presenting with, some of which may not be fixable. There may be underlying developmental problems, there may be mental health concerns that require significant and ongoing treatment, and, again, I draw your attention to my previous comment. 

Particularly for remandees, the time spent in Banksia is quite short. We have an opportunity there to try to stabilise young people. We have an opportunity to try and get the ‘through care’, as it's called, right whereby they're referred to services outside or linked up with services   hopefully some they're already using   but we can't   I don't think it's realistic to expect that the problems that a young person comes in with, that we can sort a lot of those out in the time that we have. 

With sentenced young people, I think we have a greater opportunity and a greater obligation, and I have   I want to fix as much as I can. I want to remedy as much as I can, as do my staff, but that can be difficult. But I think we've got a longer   when a young person is with us for a longer period, I think we can help stabilise that young person a bit better. 

MR GRIFFIN:  Is it your expectation that such people will be cared for and managed rather than remedied?

DR TOMISON:  Say that again, sorry?

MR GRIFFIN:  Is it your expectation that Banksia will care for and manage those young people rather than remedy them?

DR TOMISON:  Look, I'd like some rehabilitation, as some of the previous witnesses have said. It's obviously one of our goals, is to have young people desist from offending and get onto a positive life course. I'm also a realist. I've worked Child Protection. I've now worked in Youth Justice. The young people we often meet have complex needs. It's going to take a long effort to try and make some change. That doesn't mean you don't try. Just means it's hard. 

MR GRIFFIN:  Now, I understand that, especially for those there for a short period of time, there might be a limit to what you can do. But picking up on the questions to Dr Rowland, is there more that could be done in linking those people upon release to the NDIS or to other service providers which might be able to follow up on the things that you may have identified during their period at Banksia? 

DR TOMISON:  The short answer is yes, I think we can improve. The longer   slightly longer answer is I think we are continuing to improve our through care processes, but there's still a fair way to go. I agree. 

MR GRIFFIN:  This Commission has heard evidence both in this hearing and also, in the hearing in Alice Springs about the possibility of using Aboriginal community organisations to come into facilities to assist the full time staff in the sorts of ways I referred to this morning. Cultural safety, cultural sensitivity, linking what they'll be like back in the community. What can your Department provide the management of Banksia do to assist that process, if anything?

DR TOMISON:  Well, we do have NGOs that come into Banksia already, Aboriginal NGOs of varying sorts. Some run recreational programs and mentoring sort of programs. Others are more therapeutic in nature. We do have those. Could we improve it? Well, I'm going to say yes, we could. There's always room for improvement, and I do take the point that was made earlier around having some senior Aboriginal staff in the staff cohort as a way of demonstrating some better cultural commuter and to make the young people   essentially give them faces that they're more familiar with, if I can put it that way. So I agree with that. But we do actually have NGOs that come in. They don't always   we don't always keep the same NGOs. They rotate through. There's contracting processes. But we do actually want Aboriginal faces and Aboriginal services inside Banksia. 

MR GRIFFIN:  Commissioner Reynolds made an offer to the Commission to ensure that an Aboriginal person was in the senior management at Banksia within a relatively short period of time. Before Commissioner Mason starts negotiating with you, is there any possibility of more than one? 

DR TOMISON:  I think I actually missed this because I was walking down to where this hearing is being held for us, but I think we already have money for an Aboriginal services unit which is an increase at Banksia, plus for some tendered services   plus for some additional tendered services in the NGO sector. I think we'd start with one and we'd grow. There's a very broad agenda across the entire Department around encouraging the recruitment of more Aboriginal people but also getting them into senior positions. 

The Department actually does pretty well. That said, we've got a long way to go to where we might like to be in Banksia. But we do pretty well. I mean, the average, I think, in the public service for Aboriginality in terms of public servants is about three, three and a half per cent. That's the target. We're between six and seven per cent. Now, Banksia is around   according to Superintendent Reid, around 10 percent at the moment. It's not bad. It could be better, but it's not bad. 

I don't think we're neglecting it. There's always room for improvement. There's always stuff you want to fix. And that applies for the adult system as well. We haven't talked about that in my evidence today, but the reality is it's equally important that we run programs and have senior Aboriginal people in places there too. 

MR GRIFFIN:  Dr Tomison, Commissioners have other commitments. I'm conscious of the time. I wonder if I might pause my questioning and give the Commissioners the opportunity to ask you any questions. 

DR TOMISON:  Sure.

CHAIR:  Yes. Commissioner Mason, do you wish to negotiate? 

COMMISSIONER MASON:  Not on this occasion, but I thank you, Dr Tomison, for your evidence and also for your willingness to consider senior input of Aboriginal people from Western Australia. It's a huge state, but these kids in Banksia Hill come from all over the state. The wonderful thing about the Aboriginal community is our network and connection with communities right across the state. So   and I'm sure if that   that different approach does happen, I'm sure that the Aboriginal community controlled sector will swing behind it in more ways, I'm sure. So, thank you very much. 

DR TOMISON:  Thanks Commissioner.

CHAIR:  Thank you. Commissioner McEwin? 

COMMISSIONER McEWIN:  No. Other than to say thank you for your evidence.

CHAIR:  Yes. Thank you very much, Dr Tomison, for giving evidence today.  We appreciate the assistance you've provided, both in your written statement and in the oral evidence today. Thank you very much. 

DR TOMISON:  Thank you, Chair. 

<THE WITNESS WITHDREW

CHAIR:  Does that conclude our   

MR GRIFFIN:  That does conclude the   

CHAIR:  Are there any directions to be made? 

MR GRIFFIN:  We have directions for consideration, Chair.

CHAIR:  I'm not sure I have a copy. I'm told I do. 

MR GRIFFIN:  Chair, I understand  

CHAIR:  Have the proposed directions been distributed to interested parties? 

MR GRIFFIN:  They have, Chair, and as far as I know there's been no adverse feedback in the sense of somebody wanting a change.

CHAIR:  Alright. In that case, in order to save time, instead of reading out the directions, I'll initial the copy of the directions that have been provided to me on the basis that they're being provided to the represented parties, and none of the represented parties has had any objection to the proposed directions. So, I'll make the directions in the document that I have initialled and dated. 

MR GRIFFIN:  Chair, can I take the opportunity of thanking the witnesses, their legal representatives, those with leave to appear, Commissioners and Commission staff for making today happen. It's required enormous amount of reorganisation and work because of the holiday which disrupted the Perth sittings. But on behalf of the Counsel Assisting team can I thank everyone concerned. 

CHAIR:  Yes. Thank you very much, Mr Griffin. I echo those comments. It has taken a great deal of work to reorganise.  I'm very grateful, and I'm sure Commissioners Mason and McEwin share my gratitude to the members of staff and all those who are responsible for organising the hearing. It is a very big task to reorganise even one day of a hearing that we had anticipated would take place in person in Perth. It is a tribute to the organisational skills and the dedication of everyone involved that today's hearing has been able to take place and to take place so smoothly. 

So, I do express our gratitude for that and I also express our appreciation to the witnesses that have given evidence today. And, of course, to the legal team, our Counsel Assisting, the Office of Solicitor Assisting for all the very great preparation they have done in order to present the evidence today and, indeed, during the entirety of this hearing. So, thank you very much. 

I think that the Commission will be resuming a hearing on Monday week in Brisbane, and we should be hearing then about experiences of people with disability in public places. I'm told it's violence and abuse in public places. So, we shall resume on Monday week in Brisbane, which is also one of these jurisdictions that has a different time zone to Sydney, but no doubt we will accommodate ourselves in due course.

ADJOURNED 3.08 PM