Public hearing 27 - Conditions in detention in the criminal justice system, Perth - Day 4

CHAIR: Good morning, everyone. This is the fourth day of – or fourth hearing day of Public hearing 27 in which we are examining conditions in detention in the criminal justice system for people with disability. I shall ask Commissioner Mason to make the Acknowledgment of Country today. 

COMMISSIONER MASON: Thank you, Chair. Kaya. We acknowledge the Wadjuk Noongar people as the original inhabitants and traditional owners of the lands on which we gather today. Whadjak is where the city of Perth is situated. We acknowledge their ongoing spiritual and cultural connection to Whadjak boodjar. We acknowledge the Gadigal People of the Eora Nation, where the city of Sydney is now located. And we acknowledge Meanjin, Brisbane. We recognise the country north and south of the Brisbane river as the home of both the Turrbal and Jagera nations. We acknowledge and pay our deep respect to Elders past and present. We extend that respect to all First Nations people and acknowledge their continuing connection to land, sky, seas and waterways. Finally, we pay our deep respect to First Nations people here today and who are following this Public hearing online on the mainland, and on the islands, including the Torres Strait, especially Elders, parents, young people and (Indigenous language spoken) with disability. Thank you, Chair. 

CHAIR: Thank you very much, Commissioner Mason. Ms Wright?

MS WRIGHT: Thank you, Chair. Commissioners, our first witness today is Megan Donahoe of the North Australian Aboriginal Justice Agency. And Ms Donahoe is on screen and she will give evidence about her experience as a lawyer supporting First Nations people with disability in adult prisons in the Northern Territory. We will then hear from a panel of three senior members of staff from the Aboriginal Legal Service of Western Australia. Ms Donahoe's statement signed 9 September 2022 is found at Tender bundle B, tab 54, and I understand she has already made an affirmation. 

<MEGAN LOUISE DONAHOE, CALLED

CHAIR: Ms Donahoe, thank you very much for your statement which we have and which we have read. And thank you also for coming to the Royal Commission to give evidence today. We very much appreciate your assistance. Just to let you know where everybody is, we have in the Perth hearing room Commissioner Mason and Commissioner McEwin. Ms Wright is in the Sydney hearing room, as am I, so both of us will be participating remotely, and I will now ask Ms Wright if – for any questions she has of you. I'm sorry, Commissioner Mason today is actually in Brisbane. I had forgotten that. And so Commissioner McEwin is our lone Commissioner representative in Perth, holding up the fort. Yes, Ms Wright. 

<EXAMINATION BY MS WRIGHT SC

MS WRIGHT: Thank you, Chair. Ms Donahoe, could you please state your full name? 

MS DONAHOE: Megan Louise Donahoe. 

MS WRIGHT: Are you a solicitor in the criminal law practice of NAAJA based in Darwin? 

MS DONAHOE: Yes, I am. 

MS WRIGHT: Do you specialise in mental health law? 

MS DONAHOE: Yes, I do. 

MS WRIGHT: Are you also a qualified social worker? 

MS DONAHOE: Yes, I am. 

MS WRIGHT: For about 20 years before becoming a lawyer, you worked in the children, youth and family sector in the Northern Territory in various roles, including as social worker? 

MS DONAHOE: Yes, I did. 

MS WRIGHT: In your role as social worker, you worked with children and families living with disability in forensic settings? 

MS DONAHOE: Yes, I did. 

MS WRIGHT: And that included in youth detention centres in the Northern Territory? 

MS DONAHOE: Yes, that's right. 

MS WRIGHT: Including the Don Dale Youth Detention Centre. 

MS DONAHOE: Yes. 

MS WRIGHT: Now, in your role with NAAJA do you provide legal services to clients with a range of disabilities, including clients who are Deaf or have hearing loss, clients with intellectual disabilities and psychosocial disabilities and other disabilities? 

MS DONAHOE: Yes, I do. 

MS WRIGHT: You have said in your statement that your clients almost always have complex trauma histories. 

MS DONAHOE: Yes, that's right. 

MS WRIGHT: And do many of them have English as a second or third language? 

MS DONAHOE: Yes, pretty much all of my clients have English as a second or third language. 

MS WRIGHT: What interpreting services do you require to be able to assist clients? 

MS DONAHOE: We do requests to the Aboriginal Interpreter Service here in the Northern Territory. We have probably 12 main languages, and there's multiple dialects within those languages that we would request an interpreter to assist with communication. 

MS WRIGHT: Do you also require interpreters for your hearing-impaired clients? 

MS DONAHOE: Yes, we do. That can be more complicated if the method of interpretation is not Auslan. We have clients that have a culturally based developed sign language that may be specific to their family or their community. 

MS WRIGHT: You've said that a frequent issue in your practice is the difficulties accessing interpreters and communication support. 

MS DONAHOE: Yes, that's right. There is significant difficulties with that, with all clients. 

MS WRIGHT: You have given an example at paragraph 25 of a current client, JB, who is in custody. 

MS DONAHOE: Yes. 

MS WRIGHT: Is he a 20 year old man from a remote community? 

MS DONAHOE: Yes, he is. 

MS WRIGHT: And he has a cognitive impairment? 

MS DONAHOE: Yes, he does. 

MS WRIGHT: And requires an interpreter? 

MS DONAHOE: Yes, he does. 

MS WRIGHT: What's the current system for finding an interpreter for someone like JB, and how quickly can you, as a solicitor, obtain an interpreting service?

MS WRIGHT: So there's an administrative process of completing a request form for an interpreter. Once we complete all the information, they need to know the language. We also need to provide information about their family group and their alleged offending. When that goes off, they will assess that and try and source an interpreter within the timeframe that we request. If we need one on the day, we can – we follow that up with a phone call to see what the likelihood of the availability would be for an interpreter, and sometimes we can get a very quick response, as – if there is going to be a time required, if it's not available on the day. There's probably – depending on the language group and depending on what's happening in the area of where the language group is from  

MS WRIGHT: Can you just slow down slightly for the Auslan interpreters? 

MS DONAHOE: My apologies. 

MS WRIGHT: Sorry to interrupt. 

CHAIR: This is a frequent issue we have, Ms Donahoe. 

MS DONAHOE: Yes.

CHAIR: You are not the first, but we would appreciate it if you could go just a little more slowly. 

MS DONAHOE: Yes. So, depending on what's happening in a community, if there's Sorry Business at a community, that can also affect the availability of interpreters, or any kind of other community unrest, that can affect the availability of interpreters. So, once we've sent that form off and we get a response from that AIS, we get a confirmation by email. There's a number to call and a confirmation number, and they connect us with an interpreter, usually to their mobile phone, whenever they are on their community. 

MS WRIGHT: And you've said that there are frequently delays in your ability to obtain an interpreter? 

MS DONAHOE: Yes, there is. 

MS WRIGHT: What are the consequences when you cannot find an interpreter in a timely manner? For a client? 

MS DONAHOE: Well, first of all, it's very difficult to get instructions from our client, and that delays progressing a matter. So, it can be that multiple adjournments, and the client, if they are in custody in particular, will continually have to appear via AVL from the prison to court, and they can wait around at the – at Holtze Darwin Correctional Centre for hours not knowing what's really happening because we haven't been able to speak to them and have meaningful communication. 

And then if there's no interpreter available, it will be adjourned, and it will be – I will try to speak to them on the phone and let them know what's happening as best I can. But there's – it's always difficult to really know if they are comprehending what's happening. 

Once we have had an interpreter and we have been able to get instructions, in terms of progressing the matter, depending on whether we are contesting it or it going to proceed by way of a plea, we really require the services of the interpreter for that plea so that when the judge imposes a sentence, they understand that sentence. And so that can delay that part of the proceedings as well, which they can end up being quite prejudiced, if they are looking at serving more time than they would otherwise be sentenced. 

MS WRIGHT: How does that prejudice arise? 

MS DONAHOE: Because, for example, if we have a client that may be sentenced to six months custody, if the process of getting to the point of finalising their matter by way of a plea, by example, if it takes more than six months, then they are basically doing more time than they would otherwise be sentenced. So, they are being prejudiced – in    

MS WRIGHT: In terms of clients who may have a disability, do the delays in locating an appropriate interpreter have any other consequences? 

MS DONAHOE: I think – the process that I've described becomes even more complicated if the client has a disability. It takes longer to get instructions. It can take longer to communicate the procedural aspects of what's happening at court so that clients fully understand what's happening. And often there is differences with attention span and there might be other questions and other areas of interest that we may need to discuss for the purposes of rapport building. It just can take even longer. So, often we try to book several sessions with an interpreter before we can get to the point of proceeding with the matter at court. 

MS WRIGHT: Are there any improvements that you think could be made to improve access to interpreters for Aboriginal clients in the criminal justice system in the Northern Territory? 

MS DONAHOE: I can only speak from what interpreters have specifically said to me over the years. It is a casual workforce, and so how it works is that interpreters are booked on a need basis, quite an ad hoc basis. So, they may have a couple of bookings in one day, then no bookings the following day and then another booking another day. So, it's quite – and a timesheet is completed and so it is a casual workforce in that sense. 

There has been some suggestion – and, look, I am inclined to agree that it would be great to have a full-time workforce or have the option for some interpreters to work full time and even be based at court and be available all the time or on a permanent part-time basis. I think that would potentially increase the availability of interpreters. They would obviously require the framework, the employment framework to support them to be full-time with professional development and support, which should be afforded anyway as a casual workforce. 

However, I think it would also – I am aware that some interpreters, with the casual nature of their work, it's quite difficult managing Centrelink payments and being able to report different incomes, different weeks. So I think just having some flexibility for those that would like to work full time, but potentially the interpreters that are working in our areas in other jobs that aren't perhaps utilising their skills could come back and work full time as an interpreter. 

MS WRIGHT: In terms of identifying whether your own client has a disability, what information do you generally have available to you to identify (a) the disability and (b) the severity of it or the nature and severity of it? 

MS DONAHOE: So, when we first have contact with our clients, particularly on a duty basis at court, from the very beginning of our interaction with clients, we will be making observations in relation to their ability to communicate, their ability to hear, other – other – I mean, for me as a social worker, my background, I make a lot of observations around an individual's presentation. There is also – we have prompts on our duty sheet around health questions and whether they are on a Disability Support Pension, which are good prompts to ask further questions around what's happening. 

It's surprising how many clients are on a disability pension and do not know why. And when we ask further questions about that, it's sometimes quite difficult to ascertain why, and so that gives us another line of inquiry to get medical records and perhaps get that information from Centrelink, which is not an easy process to try and find out why – obviously, there is quite a high standard to get a disability pension, so there's been some assessment along the way that's – where our clients have been approved for that. 

And that would be very – it's very relevant information for them while they are in the justice system, and particularly if they need additional supports in custody. So – am I talking too fast again?

MS WRIGHT: You have made some comments in your statement about the way prison authorities screen or assess new prisoners for disabilities. What is your understanding of the screening and assessment for disability undertaken when an adult enters custody in the Northern Territory? 

MS DONAHOE: So, my understanding, from talking with Corrections staff and Health staff at the prison and my clients is there is a general medical assessment upon entry, and if there's particular issues that arise at that point, there may be referrals for other services. However, it's usually the case when it's a baseline medical assessment, and a lot of our clients' disabilities can appear, in a short interaction, to be quite invisible. 

So, they do get missed in the system, and it's often prompts from other services external to the prison to bring them to the attention of services and try and get some supports in place. 

MS WRIGHT: And you have said at paragraph 16, it relies largely on clients self-identifying that they have a disability? 

MS DONAHOE: Yes. 

MS WRIGHT: And, as you've said, clients sometimes don't know – don't know why they are on the Disability Support Pension. You have said that the screening is inadequate to identify disability. You're basing that on your own observations and your own experience of particular clients. 

MS DONAHOE: Yes, I am. 

MS WRIGHT: Now, in terms of clients where a disability is known or it is identified by the correctional staff, what sort of plans are put in place for support for your clients, to your knowledge? 

MS DONAHOE: So, the clients that we have that are very high need will often end up in the Complex Behaviour Unit. That's a specialised section of the prison. I understand it has the capacity, 10 to 15 clients can stay there, and they have a specialised support service, medical, psychiatric service there. And we have a huge proportion of clients that would also be considered to have quite high needs that don't meet that threshold because that service is resourced only for a certain number. So, they can get lost in the general prison population. 

Each sector has a prison support officer, and we can utilise that person to try to, you know, get updates as to how they are going, try and make – we do make visits and go and see them. But in terms of getting external services such as NDIS, getting assessments done, it's extremely problematic for those particular clients. So – and it can be difficult to find out how they are really doing. Their self-report – if I'm able to speak to them on the phone – and many I'm not – the self-report from some clients probably isn't particularly accurate as to how they are really doing because what – what is considered their normal can be pretty terrible and quite an isolating experience. 

MS WRIGHT: For clients who do meet the threshold to be housed in the Complex Care Unit, do they normally find a place in that unit? 

MS DONAHOE: Yes, there is a priority process that I understand is managed by that particular team, and I'm sure from – I find dealing with that team really great. Like, they refer to the clients in there as residents. It's a very different service than the main population of the prison. I'm sure they would like to have more clients in there if they could, and – however, I am aware of some that I would consider would meet that threshold and are not in there.

MS WRIGHT: I think we just lost your last words, Ms Donahoe. 

MS DONAHOE: I would consider – 

MS WRIGHT: The last  

MS DONAHOE: Okay. I will repeat the last. That I'm aware of – I have clients that have previously been in CBU that are currently not in CBU that, in my opinion, will be better supported there. And that's due to the resourcing. 

MS WRIGHT: You referred to the difficulty arranging NDIS assessments. What are you in a position to do to seek supports for your Aboriginal clients with disability in custody? As a practical matter? 

MS DONAHOE: As a practical matter, it is – we have a very busy legal practice, and providing this type of assistance is quite difficult. However, I – we have endeavoured to do it where we can. By way of an example, to get a client on NDIS that's in the prison at the moment that has a disability, I would book a professional visit and then book an interpreter. When you go to the prison and you are placed in the professional room for the visit with the client, you then need to get the prison officer to get the interpreter on the phone and transfer it to the room that you are in. So, you will have to make sure that you have a room that has a working phone. 

There can be issues with the interpreter being available at that particular time, and there's a very short timeframe, perhaps 45 minutes, to be able to get the interpreter on the phone. Then I have to make another call to NDIS to do the access request. So, I've got the NDIS on the phone, the interpreter on the phone, and the client whose English is not a first language and also has a disability in the room with me, and we have to try and do that access request in that particular time. 

They also need to have a diagnosis and ID. So, without a diagnosis and without the ID, we can't even get to that point. And a lot of clients don't have a proper diagnosis to be able to get to that point to even start that. Once we start that, there's a whole lot of other barriers after that point. Often, we don't get through the access request in that amount of time, so we have to rebook to continue it at another time. And it's just a continual juggle. And the client often has quite – they don't really understand what the NDIS is and how it's going to help them. 

MS WRIGHT: Part of that assistance is that you're aiming to ensure that there are supports available to the person post release from prison. 

MS DONAHOE: Yes. So, what we know is that clients who have better psycho social supports are less likely to come into the justice system. So, if we can do anything within our resources at NAAJA to ensure that they don't come back into the justice system we will endeavour to do that and getting – we work with a lot of clients that have very high funded NDIS plans, and they do tend to do better if they have supported accommodation and care teams and coordination for therapeutic supports than if they were in custody. 

MS WRIGHT: Are there any changes that you think could realistically be made to assist you in the task of that pre release planning? 

MS DONAHOE: There is through care programs that are available through the prison support services. They are quite restrictive in their criteria, and they are quite limited as to the amount of clients that they can support. So, I can see expanding those services to have more resources to be able to provide a greater service, particularly for the clients who are on remand, because it can take several months to get sentenced. 

And also just having more flexibility to be able to access the prison to do these access requests for NDIS, but prior to that, I – some support, case management and some support to get ID and to get a proper diagnosis for those that – often, we are acting on an imputed or a suspected diagnosis because the disability is so obvious and yet they haven't been able to access a proper assessment to get a proper diagnosis. 

MS WRIGHT: And where would that support come from? 

MS DONAHOE: For – to get a diagnosis?

MS WRIGHT: Yes. 

MS DONAHOE: I can talk to how – where it comes from now or where I would like it – where I could see?

MS WRIGHT: Well, is it coming from the prison authority or is it coming from the Department of Health? 

MS DONAHOE: So, to get – for example, for clients that have a cognitive – suspected cognitive issue, we really need to get a neuropsych assessment, and to have a neuropsych assessment, you need a referral for that. I haven't – I'm not aware of an easy process to do that through the medical service at the prison. There's a lengthy wait and a lot of difficulties with accessing a neuropsych. If we are aware that someone has a cognitive issue and they are facing a significant period of time in custody, we will use the Sentencing Act to request the neuropsych prior to being sentenced. 

And there's also – requirements for that neuropsych will often need an interpreter, and the psychometric tools that are used for the assessment need to be culturally validated for use on Indigenous people. So, we need to have a neuropsych that have that background and understanding so that the assessment is accurate and meaningful and then it can be used once – once there is a diagnosis, then we can use that to get a client on NDIS. So, it can be quite a process. 

MS WRIGHT: If you do obtain a report in the sentencing context that's helpful, is it available to you – for use other than the court context? 

MS DONAHOE: Yes. So, we seek permission from the court for it to be released, and with the consent of the client, we can try and get a support service to facilitate the NDIS request or do it ourselves. Often, it does happen where that client will be released with that diagnosis and we won't have had any time or the resources to get a post release plan in place. And it's often the case that they will come back into custody and then we will have another go with that diagnostic report. 

MS WRIGHT: You've set out some recommendations at paragraph 31. One of your suggestions is that there should be a culturally appropriate disability services unit within correctional centres to case manage and support people with disability –

MS DONAHOE: Yes. 

MS WRIGHT: – in prison. To your knowledge, is there any administrative unit or agency within Corrective Services that coordinates issues associated with people with disability in prisons in the Northern Territory? 

MS DONAHOE: So I have a lot to do with the forensic mental health team, and I do find them an excellent team. It's just quite a small group of allied health professionals that do the case management, and it's usually for the higher-need clients. So, there is – and there is the prison support team that have the through care – they have some through care staff at the prison and then there's two externally funded programs. NAAJA being one of them. 

However, as I stated earlier, there's criteria that can be quite restrictive for clients to access support through those programs. So, I would be – it would go a long way for clients to have just an expanded case management service, building on what's already working there and adding in the cultural elements that are required and that the cultural expertise, as well as the allied health professionals. 

MS WRIGHT: And assisting with facilitating access to NDIS in the pre planning steps that you have talked about? 

MS DONAHOE: Yes.  So, I mean, there's a lot that is usually required that just – that getting the baseline assessments done, finding out what the disability is and then working with the client to do a plan and then, you know, going on from that plan would be applying for NDIS. But getting the ID, looking at post release planning and working with them to support them through the justice system and the court process. 

MS WRIGHT: Is there anything else you wish to raise in your oral evidence with the Royal Commission? 

MS DONAHOE: Not at this point. I have talked a lot about a range of topics. I'm – can't think of anything yes. That's fine. 

MS WRIGHT: Those are my questions. 

CHAIR: Thank you very much. If it's okay with you, I will ask my colleagues if they have any questions to put. And I will start with Commissioner Mason in Brisbane. 

COMMISSIONER MASON: Thank you, Chair. Thank you, Ms Donahoe, for your evidence this morning, and you've said a number of really practical recommendations for First Nations young people and people with disability in the criminal justice system there in the Northern Territory. The issue of recidivism, which you have talked about, which is young people who have that psychosocial support. 

MS DONAHOE: Yes. 

COMMISSIONER MASON: So it's more unlikely that they do enter. You have talked about a number of things. What would be kind of the most highest priorities around increasing the level of recidivism for particularly First Nations young people with disability, children in the criminal justice system? 

CHAIR: Sorry, Commissioner Mason, do you mean reducing the level of recidivism? 

COMMISSIONER MASON: Reducing sorry, yes, reducing recidivism, returning back into the system. 

MS DONAHOE: I would have to say probably the number one thing would be intensive case management support that's culturally appropriate and trauma informed. And flexible. So, from what I – from what I understand with young people, and I've seen it a lot, is that they will get allocated a case worker and they don't connect with that case worker. And, you know, I've been that case worker in the past. Young people don't connect with everybody. 

It would be great to have it resourced to the point where they can try a couple of different people before they get the right one, because often there's a real burden on that young person to do all the connecting when it's a lot easier for an adult who has got some training and background to be able to change over and allocate another worker for that young person and really try to work with them to meet what their complex needs are. It's just the one size fits all doesn't work. There just isn't the flexibility there, and it has to be a two-way street. Yes. 

COMMISSIONER MASON: And just one general question. Ms Donahoe, we – this week we have heard evidence and examples of hardship, cruelty, punishment, lack of kindness to people with disabilities and First Nations people with disabilities in the criminal justice system. In your – in your many years of experience working as a solicitor, have – is this issue of recidivism something that is central to the way that the criminal justice system works with First Nations people and children with disability? Is it something that is talked about? Is it referred to? Is it embedded in the policy procedures of – the philosophy, if we use that word, of the criminal justice system in the Northern Territory? Is it the vision, the goal, or is it more around punishment? 

MS DONAHOE: In my experience for the – for youth and for adults, that the deterrence factor, the punishment factor, is by far the most predominant factor, in my opinion. The system is about punishment and – I mean, when you – when – as workers, we connect with individuals all the time while working with young people and adults in the system, and they may not necessarily agree with that approach and they build really positive relationships. 

But it's an individual-based thing. It's not a systems-based thing. And it needs to be integrated right through the system of being trauma-informed, and it just needs to be a way of thinking at the forefront and reviewed regularly and ensure that every approach is taken is trauma-informed and does have that kindness and there is accountability and there is reflection on a continual basis. Because it's just a very – it a very heavy system that is embedded in punishment. 

That's my experience. But everyone may not agree with that. But having worked in this area since about 1997 in the Territory, I – I feel like that is – that is my experience. That it's very much about you're going in, you've got to learn that what you did was wrong, and you've got to experience the hardship to do it, and then when you learn and you come out, then you won't do it again. But the issue is it obviously is a very archaic approach, and we have a lot of evidence now that contradicts that, and we also know that it just doesn't work. 

That the clients and the Indigenous people that are in the justice system have a lot of other things going on, particularly our clients with disability. If they have a disability they are likely to have trouble with their ability to learn so they are not going – there's a lot behind that. Does that answer your question or just – 

COMMISSIONER MASON: Yes. Thank you. Thank you very much. I think you are well positioned to have a view on this. Thank you. 

CHAIR: Commissioner McEwin. 

COMMISSIONER McEWIN: Thank you, Chair. Thank you, Ms Donahoe, for your evidence. My question is about your work with Deaf people who you have come into contact with. Do you work with other people who also work in the Deaf community, such as Deaf interpreters, Deaf advocates to make sure you can provide a holistic service, because what we have heard is that often Deaf people – Auslan may not be their first sign language, and they also might need extra support to understand the Auslan interpreters. Can you describe any of your work in that area? 

MS DONAHOE: Yes. Yes. My experience would concur with what you have described. We do work with Auslan interpreters and we do work with other interpreters – I have worked with an interpreter that I think recently gave evidence. It is far too under utilised, and probably before that one of the biggest issues is that so many clients have not had a hearing test. Trying to get a hearing test to even establish a hearing impairment is exceptionally difficult, and we have a lot of clients that have hearing – hearing impairments. 

So – and those clients don't have Auslan skills and perhaps haven't developed other – other sign language skills. So, they really do fall into a gap that even if we had have been able to diagnose their hearing impairment, they haven't had the support to develop the sign language skills for us to use an interpreter for them. So, it's – it's an enormous – I would go so far as to say with the recommendation around disability screening at the prison that a standard hearing test, particularly for, you know, young children that I worked with 20 years ago, that had otitis media and other ear issues now have significant hearing impairments and are now adults in prison. They really need a hearing test. 

And we have made lots of – I have had a lot of experience with trying to facilitate hearing tests, and it's very difficult. There's a long wait list in the public system. It's shorter in the private system, but you have to pay. So, I know I'm not speaking to specifically accessing interpreters – sign language interpreters, per se, but it's just going before that – before we can even reach that point, our clients need to be diagnosed with a hearing impairment in the first place. 

COMMISSIONER McEWIN: Thank you. Thank you, Chair. 

CHAIR: Thank you. In paragraph 7 of your statement, Ms Donahoe, you refer to your clients almost always having complex trauma histories. 

MS DONAHOE: Yes. 

CHAIR: When you use that expression, what are you referring to primarily? 

MS DONAHOE: So most of our clients would have been through – had multiple adverse childhood experiences, such as the loss of a parent at a young age, being around violence, perhaps suffering from neglect and abuse, and having multiple traumas, particularly as they grow older, having seen violent incidents and lost – had an enormous amount of grief and loss in their community. 

CHAIR: Yes. Thank you. And my only other question is whether you're familiar with the Guddi Way Screen. Do you know anything about that? 

MS DONAHOE: No, I don't. I'm sorry. 

CHAIR: Alright. Well, I asked because it has been the subject of evidence and I just wondered if you had come across that. 

MS DONAHOE: I have heard of it but I don't know anything about it, I'm sorry. 

CHAIR: That's fine. Alright. Well, thank you very much for your evidence. Your statement and your oral evidence. As have you probably worked out, we are actually operating from four different places today, Darwin, Perth, Sydney and Brisbane. I think that equals the record, but, luckily, it goes very smoothly because of the assistance we receive from Law In Order and others. So, thank you for participating this way, and thank you for your contributions to the work of the Royal Commission. We very much appreciate it. 

MS DONAHOE: No worries. A pleasure. Thank you. 

<THE WITNESS WITHDREW

CHAIR: Thank you. Ms Wright. What do we do now?

MS WRIGHT: We will now move to the panel who will appear on screen. The – our three witnesses now, Commissioners, have provided a joint statement dated 13 September, which is found at Tender bundle B, tab 39, and there are annexures A to K to their statement which are also in Tender bundle B. I understand they will each swear an oath. 

CHAIR: Yes. Thank you. Mr Collins, Ms Barter and Ms Greenoff, thank you very much for coming to the Royal Commission, this time in Perth, to give evidence today. Thank you also for the detailed written statement that we have received from you and which we have read. We are grateful for your willingness to give oral evidence today to supplement the written statement. I would be grateful if you follow the instructions of Commissioner Mason's associate, and she will administer the oath to each of you. 

ASSOCIATE: I will read you all the oath. At the end please all say yes, or I do. Do you swear by almighty God that the evidence which you shall give will be the truth, the whole truth and nothing but the truth? 

MR COLLINS: Yes. 

MS GREENOFF: Yes. 

CHAIR: You probably heard me say just a minute ago, where everybody is but I will repeat it just to be sure. You are in the same hearing room with Commissioner McEwin. Commissioner Mason is in the Brisbane hearing room of the Royal Commission. I am located in the Sydney hearing room, as is Ms Wright, and I will now ask Ms Wright to ask you some questions. Thank you. 

<PETER FRANCIS COLLINS, SWORN

<SASHA LEIGH GREENOFF, SWORN

 <ALICE VIVIAN BARTER, SWORN

 <EXAMINATION BY MS WRIGHT SC

MS WRIGHT: Thank you, Chair. Mr Collins, could you state your full name? 

MR COLLINS: My full name is Peter Francis Collins. 

MS WRIGHT: And you are Director of Legal Services at the Aboriginal Legal Service of Western Australia? 

MR COLLINS: That's correct. 

MS WRIGHT: And you have held that role since 2005? 

MR COLLINS: I have. 

MS WRIGHT: Over many years, you have appeared for Aboriginal clients, including many with disabilities, both adults and young people who have been charged with criminal offences? 

MR COLLINS: That’s right.

MS WRIGHT: And you have taken a leading role, including of late, in writing to government including to the Minister for Corrective Services to raise issues about the conditions in custody for Aboriginal prisoners and detainees, including to draw attention to their cognitive and other disabilities and the urgent need for therapeutic support? 

MR COLLINS: I have. 

MS WRIGHT: I will come back to that. And, Ms Barter, if you could state your name, please, for the record. 

MS BARTER: Yes, Alice Vivian Barter. 

MS WRIGHT: And you are the Managing Lawyer of ALSWA’s Civil Law and Human Rights Unit? 

MS BARTER: That's correct. 

MS WRIGHT: And you're responsible, amongst other areas, for the organisation's work on prison's rights and advocacy for young people in the youth justice system? 

MS BARTER: Yes, that's correct. 

MS WRIGHT: And you have also been with the organisation since 2005? 

MS BARTER: Yes, on and off. 

MS WRIGHT: Do you currently lead a team of about 20 people, including nine lawyers, in representing clients' rights, including on youth justice issues? 

MS BARTER: Yes. 

MS WRIGHT: And did you represent VYZ in the Supreme Court of Western Australia in judicial review proceedings which recently successfully challenged the legality of lockdowns at Banksia Hill Detention Centre in respect of VYZ? 

MS BARTER: Yes. 

MS WRIGHT: And, Ms Greenoff, if you could please state your name for the record? 

MS GREENOFF: Yes, Sasha Leigh Greenoff. 

MS WRIGHT: You are a Diversion Officer in ALSWA's Youth Engagement Program? 

MS GREENOFF: That is correct. And I'm also the Supervising Diversion Officer for the children, and I'm also the Team Leader for the Adult Bail Support Service for the Perth Metro and the Kimberley region. 

MS WRIGHT: Thank you for that. And you're a First Nations woman from the Jaru in the Kimberley region? 

MS GREENOFF: Yes, that's correct. I'm a proud Jaru woman from the Kimberley region of Western Australia. I'm also a proud Jawoyn woman from the Northern Territory. 

MS WRIGHT: And your role in the Youth Engagement Program is, or YEP, is to provide culturally secure support to children between the ages of 10 through 17 through case management and mentoring, court support and advocacy, and you also refer young people to external programs and services. 

MS GREENOFF: Yes, that is correct. 

MS WRIGHT: And many of the children and young people that you support live with disabilities? 

MS GREENOFF: That is correct. 

MS WRIGHT: Your title is Diversion Officer, but do you through the YEP also support young people while they are detained in custody? 

MS GREENOFF: That is correct. 

MS WRIGHT: And how does the YEP engage with young people whilst they are in detention? 

MS GREENOFF: We have weekly visits. So, in the Perth Metro region, the Diversion Officers will book appointments to visit the young people at the Banksia Hill Detention Centre, and our Diversion Officers in our Broome office will either come in via telephone or via video link to speak to the clients. 

MS WRIGHT: What sort of support are you providing to young people whilst they are in detention as opposed to whilst they are in the community? 

MS GREENOFF: We provide mentorship. Some of the clients that we work with, because we are Aboriginal Diversion Officers, we – they don't see us just as Diversion Officers. So we may be classed as an older sister, older brother, an aunty, uncle or even in a mothering nurturing role. So, in – when we have meetings with them we play cards with them, we just sit down and have a yarn, just check on their wellbeing to see if they are okay. I mean, just basically talk about what they want to do, their goals, their aspirations. We also are role models for these young people as well. 

MS WRIGHT: Now, your joint statement speaks strongly to the overrepresentation of Aboriginal young people in juvenile detention in Western Australia and also to the prevalence of neurodevelopmental and cognitive impairments in those young people and the trauma history in your clients that you see. At an individual level, when you have a client who has – who is in detention, what information is available to ALSWA to identify the nature of that young person's disabilities and their support needs? 

MS GREENOFF: Before I speak further, I would just like to acknowledge the traditional custodians of the land that we meet today, the Wadjak Noongar people. We acknowledge and respect their continuing culture and contributions to the Wadjak Noongar nation. We also pay our respects to the Elders past, present and emerging, and we also acknowledge the strength, the resilience of our First Nations colleagues and clients. 

And to go to your question, I would like to answer that by saying, in the court system, we receive the neuropsychological reports from the lawyers. We then obtain leave from the court to have a copy of that. We always obtain leave to have a copy of that for ourselves for the Youth Engagement Program. Also Centrelink, education, and medical. So, then once we have received that report, we then speak to the family, because we work very closely with the family, and the young person. 

And we explain to them in a culturally safe way on the neuropsychological report what it details and what the diagnosis is. And then from there, we then access NDIS which is – which is a lengthy process. But we walk through that process with the family, and we start with the pre planning appointments. Then once the pre planning appointments come about, then we then – the young person will then receive a NDIS plan. And once we receive that NDIS plan, then we can refer the young person to get support coordination and also therapeutic support. 

MS WRIGHT: Thank you. Mr Collins, is it routine for a young person who is admitted into Banksia Hill Detention Centre to have a diagnosis? 

MR COLLINS: Yes. Although a lot don't as well. 

MS WRIGHT: A lot won't have a diagnosis? 

MR COLLINS: That's right. 

MS WRIGHT: And so it is not a routine – it is not systemic that an assessment is made either at the court level or once the person enters into the detention centre? 

MR COLLINS: It depends, at a court level, whether the court orders a psychological or a neuropsychological or a psychiatric report. When young people enter the Banksia Hill Detention Centre, there's a process of screening, but sometimes these diagnoses aren't made. 

MS WRIGHT: To your knowledge, is any assessment – particular assessment made to diagnose FASD or any cognitive impairment for new detainees? 

MR COLLINS: There's a FASD diagnosis undertaken usually, yes. 

MS WRIGHT: Now, one of the things you have talked about in your statement is, of course, the YEP or the Youth Engagement Program? Does that operate on therapeutic, trauma informed principles? 

MR COLLINS: Yes, it does. It's a culturally secure, therapeutic, holistic individualised service. 

MS WRIGHT: Does it operate state wide? 

MR COLLINS: No. 

MS WRIGHT: Where does it operate in Western Australia? 

MR COLLINS: Currently it's operating, as you have heard, in Perth. There is also YEP – we call it a YEP – in Broome, which services Broome court and Derby court, and we have recently received funding, but the program hasn't commenced for Kununurra and the East Kimberley and for South Hedland in the Pilbara. But the rest of the state does not have access to the service. 

MS WRIGHT: And I think you have provided in one of the case studies, case study H, which is paragraph 55, an example of a client assisted by YEP in detention. He was a young person diagnosed with a language disorder and FASD, and the YEP helped him to apply for an NDIS plan when he was released from detention. And while he was in detention, you were able or the YEP was able to organise some therapy services in the form of an occupational therapist and a social worker to attend. Was that to attend Banksia Hill Detention Centre? 

MR COLLINS: Yes, it was, as I understand it. H was Ms Greenoff's client so she knows a lot more about him than I do. 

MS WRIGHT: Ms Greenoff, was that only possible because there was an NDIS plan and because of ALSWA's efforts to arrange that support for H? 

MS GREENOFF: That is correct. 

MS WRIGHT: And you've said at paragraph 55 that apart from that support, he did not receive therapeutic support for his disabilities while he was in detention. 

MS GREENOFF: That is correct. 

MS WRIGHT: How common is it for you or ALS to organise that sort of support through NDIS for a young person who is in detention?

MS GREENOFF: Unfortunately, all the youth clients that are represented by ALS don't become a YEP client, so we only have capacity to service a small amount of clients. But those clients that are on our program do receive that individualised support with NDIS and other supports that are needed for them in custody. 

MS WRIGHT: Does that assume that they are on an NDIS plan? Or are a certain proportion not in the system, so to speak? 

MS GREENOFF: That is correct. Not in the system. 

MS WRIGHT: Is it rare for a young person to have an NDIS plan and to be able to access support or is it commonplace? 

MS GREENOFF: It's common. 

MS WRIGHT: Now, still on H, your joint statement records that he instructed ALS that, on some days, he was allowed out of his cell for only 10 minutes. Now, my question may not be directed to you, Ms Greenoff, but the case study records that on some days he was allowed out for only 10 minutes. To state what may be obvious, are you saying he was locked in his cell alone for 23 hours and 50 minutes on those days? 

MS GREENOFF: That is correct. 

MS WRIGHT: What are clients telling you currently – perhaps, Ms Barter, this is a question for you – about the duration of lockdowns that they are experiencing at Banksia Hill? 

MS BARTER: Yes, we have numerous clients in Banksia Hill at the moment. We have instructions from at least 30 different children over the last eight months who have experienced what they call rolling lockdowns due to staff shortages. So, that means the child is locked in their cell, which is a very small, stark room, often without a TV. Sometimes with a TV. And they will be given all their meals in that cell, and often they will be let out only for one phone call. 

And the children are told it's a one 10 minute phone call. Once you finish your phone call, back to your cell and locked back down. And they are calling rolling because they roll through and each child is allowed up, one at a time. And in Banksia Hill currently those rolling lockdowns due to staff shortages are still occurring. We have instructions as recently as this week that, particularly on the weekends, the staff shortages mean that they are being locked down. 

The children who are removed – who are transferred to the maximum security prison, Casuarina, they are in Unit 18 there, we have instructions that they have been in lockdown for days on end for the last few weeks, only being allowed out of their cell for 10 minutes a day. 

MS WRIGHT: I will come back to that. You acted for VYZ in the Supreme Court. He was a 14 year old boy?  Is that right? 

MS BARTER: That's right. He was 14 when he went into custody, and he turned 15 while he was in Banksia Hill. 

MS WRIGHT: And he was not the subject of any confinement order made by the superintendent for – to authorise that he be locked into – in his cell? 

MS BARTER: That's right. 

MS WRIGHT: Is that right? There are two ways which such an order can be made. One is if the young person has committed some form of disciplinary offence, an order can be made authorising lockdown under the legislation. 

MS BARTER: Yes, that's right. Or they can – for the good order, management and security of the detention centre. 

MS WRIGHT: But the legislation in those cases still requires a certain amount of time out of cell? 

MS BARTER: Yes. And even when those orders are in place, often the children are not allowed out. The maximum under the statute, the Young Offenders Act, what they are allowed, but also the Young Offenders Act only dictates that a small amount of time per day has to be out of the cell. And so the ALS would call on the Young Offenders Act to be reformed in that way so that the children are entitled to time out of their cell and time in fresh air. 

Because often the time they are out of their cell is still within the unit, within the wing. So, it's within a building, and they have told us that there is days on end where they have not had any fresh air. 

MS WRIGHT: In respect of VYZ, if I could just recall for those who perhaps haven't read the judgment, the evidence in the Supreme Court was that during the 20 to 24-hour lockdowns which he endured for at least 26 dates in the first half of this year, he didn't have conversations with the officers or other boys. He did not attend school or receive any education, and the only thing said to him on days when he was allowed out for 10 minutes on some occasion by guards was, "Be good. Behave." 

MS BARTER: Yes, that's right. And on the dates of 4 to 6 June of this year for the 72 hours of those three days, he was locked in his cell for 70 hours of them. So, there were multiple days where he was in lockdown as well. 

MS WRIGHT: And the judgment records that his evidence in the Supreme Court was that he felt like the walls were coming in at him and that his head was spinning inside his cell. Is what VYZ told you about what occurred during the almost full day lockdowns and how he felt in his cell, was that specific to him or do you hear that kind of thing from clients? 

MS BARTER: We hear it all the time from all different clients who many have diagnoses and some don't have diagnoses. But I think some of us who have experienced isolation due to COVID can try and empathise with the feeling of not having any social interaction with others and how hard that is for our mental health. But these are children who are teenagers who need to be developing, and a lot of them do have FASD or other neurodevelopmental language disorders and other disorders, and they have also experienced complex trauma in their lives. 

So, it does really badly affect their mental health. We have a huge, huge number of self-harm attempts at both Banksia Hill and the children who have been moved to Casuarina Prison, and it is extremely concerning the way we are compounding their trauma and really affecting their development. 

CHAIR: If the young people are detained in a cell for 23 hours a day, let us say, what is it that they can actually do in that cell? 

MS BARTER: Very little. 

CHAIR: What are the activities, if any, that are available to them? 

MS BARTER: Very little. What I've been told is that they just basically try and sleep and lie on their bed and they're just alone with their thoughts. Occasionally they are given education packages, but many of them are not able to engage with just paper given to them without someone actually teaching them, and so they say they just try and sleep and they often don't know the time difference between night and day. 

CHAIR: Thank you. 

MS WRIGHT: To be clear, is there any radio or television in the cells? 

MS BARTER: It depends. There is often radio and television. Sometimes it is taken away as a punishment, and sometimes it doesn't work either because there's been some issue with the technology or because the child has damaged it in their distress. Sometimes in the Intensive Support Unit, the TVs are on channels that the guards can control only, and they will often – we have been told – put on channels like news from overseas. Sort of channels that the children would not be interested in. And they will make that decision as to what channel is to be on. 

COMMISSIONER McEWIN: Can I ask, are they in solitary cells? Are they able to hear what's going on with other people in there? 

MS BARTER: Yes, it depends. All the cells, as far as I'm aware, in Banksia Hill and also in Unit 18 at Casuarina only has one child per cell. In some of the cells, they can shout to each other and speak with each other, which they do do, but some units, the different materials, so some it's less easy and some it's easier. In the Intensive Support Unit, which is the sort of crisis care unit or the punishment area in Banksia Hill, often the children can actually see the other children there due to the glass in the cells. And we have been told they can also then communicate with them but also see when they are in distress and when they are self harming, which is extremely distressing to the other children. 

COMMISSIONER McEWIN: Thank you. 

MS WRIGHT: Ms Barter, you have said that sometimes they end up – I imagine more than sometimes – frustrated and distressed and cause damage to property. Are the children and young people then sometimes placed in the Intensive Support Unit for management following those sorts of incidents? 

MS BARTER: Yes. That's right. 

MS WRIGHT: And you have given some examples in your joint statement which record those kinds of incidents, for example paragraph 41, a case study B and case study C, where you've recorded that: 

"The capacity of young people who have disabilities in particular to deal with lockdowns is very difficult."

MS BARTER: Yes. 

MS WRIGHT: How would you describe the physical environment for children and young people with sensory sensitivities and cognitive impairments at Banksia Hill? I will come to Unit 18 in a moment. 

MS BARTER: There's – it's a prison. It is a very stark environment with grey painted walls, toilets that are bolted to the ground and beds that are part of the wall, I guess, with sometimes a mattress, sometimes not a mattress. They are extremely dirty. We've been told that there's urine, spit and vomit often on cells, particularly in the ISU, but also in the other cells. The cells have been damaged because the children have been locked in there and don't have anything else to do. So, they become distressed and have damaged cells. And so, that hasn't always been fixed. 

So, they have said to us that they do get very dysregulated in that environment. There is also, like I said before, lack of fresh air. Sometimes the cells can be very cold. Sometimes the cells can be very hot. And so there's no sort of soft sensory furnishings or anything to help children calm down when they are feeling dysregulated. 

MS WRIGHT: What about the sounds and the light? 

MS BARTER: Well, it depends. The light can be very harsh and be on – be kept on for a long time. Other times, the lights can be turned off, particularly – the Commission heard evidence earlier in the week, after the May 2017 riots when the electricity was just totally off, so the children were locked in pitch black. The sounds – it's a very violent place, Banksia Hill. When we have been visiting, there has been a lot of cries of distress, a lot of – we've heard guards belittle and speak down to children, a lot of shouting and that sort of thing. 

I have never heard a lot of sort of rehabilitative or therapeutic words being spoken to the children, but I have heard some very – sort of the opposite of that. And we have heard belittling language. We have heard children being teased about their disabilities. We have heard children being teased when they have got dysregulated. And we have heard about guards using extremely violent mechanisms. In that case study, that child was restrained, and an officer was restraining on his neck, and we have heard of many, many officers punching and hitting these very young children. 

The Special Operations Group go in with riot shields and riot clothing, and they will go in with batons and also OC or capsicum spray, so any sort of dysregulation or any issues of damage are dealt with extremely violently and extremely punitively. 

MS WRIGHT: When you say you have heard teasing about disability, have you personally heard that sort of thing? 

MS BARTER: We – I have – I have personally heard guards sort of diminish the seriousness of self harm. For example, I gave a business card to a child in ISU – this was quite a few years ago now – and the guard sort of had a bit of a go at me and said, "What are you thinking, giving the child of a piece of cardboard like a business card? You know that all these children self-harm and they use whatever they can." And I found that quite intimidating, the way that he spoke to me. 

MS WRIGHT: Now, you've – before I move on to that, is there any part of Banksia Hill Detention Centre that might be considered a more therapeutic environment? At least in the way it appears physically. 

MS BARTER: I haven't been to every single unit because we haven't – we just go to the visits area or we go and see our clients in the unit if there is staff shortages or in ISU, so I haven't seen every part of it, but my understanding is no. There is the case planning, case management officers who do work very well with the children, but as far as the physical layout, I haven't seen anything that I would call therapeutic. 

MS WRIGHT: Now, you've – in the joint statement, you have all expressed your concerns about the detainees or some detainees recently being transferred out of Banksia Hill into the Casuarina Prison. Is that known as Unit 18? 

MS BARTER: Yes. 

MS WRIGHT: And when did any of you most recently visit Unit 18? 

MS BARTER: Peter visited this week. 

MR COLLINS: I went to the visits area used for detainees in Unit 18 at Casuarina Prison yesterday. 

MS WRIGHT: And what ages are your current clients who are in Unit 18? 

MR COLLINS: A range anywhere from 14 through to 17 years of age. 

MS WRIGHT: And are you able to provide an indication as to the nature of their disabilities, if any? 

MR COLLINS: Well, as an example, the client I saw yesterday is 17 years of age. He is from a remote part of the state. He has been diagnosed with FASD, PTSD and has a very significant trauma history which almost defies belief. And he was remanded in custody a week or so ago, spent overnight in Banksia Hill Detention Centre, and the very next morning was transported into Unit 18. So, in other words, there was no misbehaviour by him, so to speak, in Banksia Hill on this occasion, in my view, to warrant his transfer to Unit 18. 

MS WRIGHT: And do you say that because Unit 18 has been used for the more problematic detainees to date? 

MR COLLINS: It's used to punish the more problematic detainees. 

MS WRIGHT: But this client you saw yesterday doesn't fall into that category? 

MR COLLINS: The client I saw yesterday is one of many clients that ALS act for who cycles relentlessly in and out of Banksia Hill, and he's had behavioural issues in the past in Banksia Hill which has led to him being held in the ISU. But on this occasion, there's no evidence that I'm aware of to suggest there was any misbehaviour warranting the transfer to Unit 18. 

MS WRIGHT: I see. 

CHAIR: In your view, it's a kind of anticipatory confinement? 

MR COLLINS: Yes. Chair, it goes further than that. This language might seem – be seen to be emotive and perhaps a little over the top, but my – of what I've heard about Unit 18 and what I've seen about the ISU, these are punitive, Dickensian places which are designed to punish these children for their misdeeds and squeeze the very humanity out of them. 

What do you expect if you are locking up a 17-year-old boy with FASD, PTSD and other impairments from an extreme trauma history, what do you expect if you lock that boy up for 23 hours and 50 minutes each day, which is what he has endured in the last week or so since he's been in Unit 18? 

The descriptions often used at these places are monster factories and that's exactly what it is. The chances of recidivism in this environment are exponentially high. They are not rehabilitative in – 

CHAIR: In the light of your experience, which is obviously very extensive, how can this cycle be interrupted? 

MR COLLINS: It can be interrupted, but it requires an entire refocus by government on this space, on justice. Aboriginal people in Western Australia are the most over policed and over imprisoned in the country, if not the world. One in 15 Aboriginal men are in custody as we speak. So, the current approaches have failed abysmally, and it's not a question, Chair, of providing additional funding or instituting new programs. 

It requires a whole re imagining by government, bringing the community with it, as to the nature of the relationship with First Nations people in this state. It starts with the big picture things, something akin to a Truth and Reconciliation Commission, followed by a Treaty, followed by the establishment of Aboriginal people in this state in their rightful place in this place. What can then follow is Aboriginal led, designed and implemented processes and programs to deal with young people who are ending up in places like Banksia Hill, ISU, and Unit 18. 

Government can't keep control on the levers in relation to this, because they have continued to repeat the failures of the past. Aboriginal people need to have the power to look after themselves, their communities, and their young people, because the rates of recidivism, as Commissioner Mason talked about earlier, in relation to children that we've been speaking about today – particularly kids with disability – are exponential. North of 70 per cent. 

And so many of our clients with disabilities who have spent lengthy periods of time in juvenile detention simply transition, once they turn 18, into the adult jail system, and they literally rot away. And what they are then faced with at the completion of their terms of imprisonment as adults is an application under the High-Risk Serious Offender laws which may result in a custodial order – a custody order, I should say, which could result in their indefinite imprisonment. 

So, the picture is incredibly bleak and tinkering at the edges is not going to get a result. And I know what I've spoken about is very aspirational, but we need to start the process. And this state has been a laggard in that regard. It has been a laggard. There is no appetite, as I discern it, and I've raised it with senior bureaucrats within the Western Australian bureaucracy about the possibility of Treaty and so on and it's not on the agenda. It's not on the agenda. 

We can't even get Aboriginal sentencing courts on the radar in in this state. We can't even get those on the radar. Whereas in other jurisdictions Victoria, for example, Koori Courts have been in place for over 15 years. 

CHAIR: And there is a Reconciliation process underway in Victoria. 

MR COLLINS: I'm sorry, Chair, I didn't hear that. 

CHAIR: Sorry, I believe there is a Reconciliation process through one of the inquiries that's been established in Victoria. 

MR COLLINS: Absolutely. 

CHAIR: I'm sorry. Commissioner Mason, I think, wanted to ask a question. 

COMMISSIONER MASON: Yes. Thank you. Mr Collins, is – you are talking about Koori Courts, which are operating on the east coast. Are you saying that there's no similar court in Western Australia? 

MR COLLINS: There is one court called the Barndimalgu Domestic Violence Court in Geraldton. That's it. 

COMMISSIONER MASON: So, we have the Nunga Court in South Australia, the Koori Court, Murri Court, but not in the largest state of Western Australia we have anything similar. 

MR COLLINS: No. And I've been told when I raised it and the current government were re-elected in March last year, that because Aboriginal sentencing courts weren't part of the package of electoral promises, that it wasn't going to be considered during this term. So, we've got a court – we have got a court system – and this applies both in the adult courts and the Children's Court – which churns Aboriginal adults and young people with disabilities through the system relentlessly, sending them to custody only for them to get nothing out of that experience, to be thrown back into often cesspools of dysfunction and deprivation only to re-offend again and land back into custody. 

Can I give you an example, because it is easier to talk about these things, but I have acted for clients. I will give you one example, if I may, please. I have acted for a young man from the Ngaanyatjarra Lands which are west of – sorry, they are east of Kalgoorlie. He's from the desert. The last time I acted for him, he was 26 or thereabouts. I had acted for him when he was a juvenile, when he was a young person. He started sniffing petrol when he was 3. He was given petrol by his mother. 

His dad was in and out of jail. His mother had mental health issues. He was on the radar of Child Protection Services from about the age of 3. They knew he was sniffing petrol. Police witnessed him sniffing petrol. Because he spent most of his younger years locked up, he didn't go through traditional lore initiation practices, as is the norm. So, he was treated as a boy by his community and was worthless. 

In jail, he was loathed because he didn't have the cognitive capacity to understand you shouldn't pour another prisoner's detergent powder on the floor, on it went. He gets out, he goes to the community where he's from, he's a pariah. He's playing football one day. The other boys wouldn't kick the football. His response was to pick up an iron bar and go and hit his aunty over the head with it because she was laughing at him, causing grievous bodily harm, and he goes to jail. 

There were no interventions whatsoever for this young person at any stage along his journey through the justice system. Now, that's an indictment on Western Australia. It's an indictment on the country. But I could give you countless similar examples of this, and it's hard not to think that government is happy to have these Aboriginal people locked up, because if they are locked up, they are out of sight and out of mind. And I will talk to you about intergenerational trauma as well, if I may, and I know I have got the floor, but I may as well use it if I can. 

CHAIR: Yes, if you don't mind, just do this reasonably briefly because I do want to give Ms Wright the opportunity of asking some more questions of the panel. 

MR COLLINS: I can't remember what case example this client was. I think it was case example – case example C. He was my client. This is what intergenerational trauma looks like for this child. In 2005, an older biological relative won a joke-telling competition at the pub. He took his prize money home and seriously assaulted, causing life-threatening injuries to his female partner, who happened to be the client's aunt in the Aboriginal way. 

He then took that woman's two children – one was a toddler and the other was about 4. He took them out to the cemetery on the outskirts of the regional town in remote WA where he lived and using his skills that he had learnt as a ringer, he strung up the 14-month-old and hanged him. In the face of the cries by the 4 year old, he did the same to her. He then drove to the local police station and confessed to killing them and was sentenced to life imprisonment. 

That client's family never spoke about it. Not once. So, it's a dark secret in the family history, and there was no intervention provided by anyone to help the family get through the trauma and grief that he inevitably would have experienced. That was intergenerational trauma in practice in the lives of this boy, and he is the boy I saw yesterday. He's the boy who is back in Unit 18 locked up for 23 hours and 50 minutes every day. 

CHAIR: Yes, Ms Wright, I think if you don't mind resuming. 

MS WRIGHT: Thank you. You have said a whole new approach is required, and I will come to that in a moment. Just still on Unit 18, do the young people there have access to education and programs? 

MR COLLINS: Well, I asked my client yesterday, Ms Wright, whether he was getting any education. He said no. 

MS WRIGHT: Do you have access as a lawyer to confidential communications with your clients at Unit 18? 

MR COLLINS: No. 

MS WRIGHT: When you say no, what do you mean? 

MR COLLINS: First of all, you are allocated one-hour maximum to see clients in Unit 18. They are escorted by guards from Unit 18 to a visits area, which is the area which is usually used for social visits by family and friends to adult prisoners. It's a wide area with desks that are bolted to the ground with a little barrier in the middle, in between the prisoner and the visitor. 

When my client came to see me, he was in the company of two other young Aboriginal people who were being seen by another ALS lawyer. We were all in the same area, and there were five guards on the perimeter watching and listening. So, there's no lawyer-client confidentiality whatsoever. And the other thing is, these kids have got hearing problems. So, you can't talk quietly because they can't hear you. So – 

MS WRIGHT: Now, do the young people have access to psychologists at Unit 18? Or other welfare non-custodial staff? 

MR COLLINS: I don't know. 

MS BARTER: I can answer that. They do have access to psychologists, and they have been seeing – our clients have been seeing psychologists while in Unit 18. However, they are only available at certain times, and so many children have said to us, "When I've called for a psychologist saying I need to speak with them now, they haven't been available until days after." And by then sometimes the child doesn't want to talk about what was troubling them at the time. So, it can be very ad hoc, and it can be very difficult for the clients to speak with psychologists. 

I've been told that it's difficult for children to speak with medical professionals, but I have also been told that the psychologists who are seeing some of the young boys are actually doing a really good job and the boys have got a good relationship with them. 

MS WRIGHT: You might not be able to answer this, but are they dedicated staff at Banksia Hill? I'm talking about psychologists and other non custodial staff. Or are they shared with – sorry, at Unit 18, are they shared with Banksia Hill? 

MS BARTER: My understanding is that they are, but I'm not sure exactly how the division is made. 

MS WRIGHT: Now, the Department has said – and you would be aware of this, all of you I assume – that there will be a new operating philosophy which is to be implemented at Banksia Hill Detention Centre. You're aware of that? 

MS BARTER: Yes. 

MS WRIGHT: And, in fact, you have attached to your joint statement some of your complaints to the Minister and others about the conditions at Banksia Hill together with responses. And at annexure C to your joint statement in that I think what is the most recent letter, the 27 April from the Minister to you, Mr Collins, he said that a newly developed contemporary model of care for young people in custody will be implemented in the near future to provide a more focused operation at Banksia Hill. 

MR COLLINS: That's correct. 

MS WRIGHT: Now, in terms of how that will look and be implemented, do you have any knowledge about that at this stage? 

MS BARTER: We have had a briefing from the Deputy Commissioner which involved showing us some of the words on a screen. Some of the words that talked about having the child – listening to the children and developing the children. We haven't been told anything further. We are concerned that it's not going to be trauma-informed and culturally appropriate for our clients. They have tried to change the operating philosophy over the last 10 years at Banksia Hill, and each time it has failed, my understanding is due to the culture of the officers at Banksia Hill. We are extremely concerned that they have not put in the work to change this operating philosophy, and the ALS was not consulted by the consulting group. 

MS WRIGHT: When you refer to the officers, the staff with whom the young people have most contact are the Youth Custodial Officers; is that right? 

MS BARTER: Yes, that's right. 

MS WRIGHT: And they are the staff who interact with them on a day-to-day basis, give them instructions, talk to them about meals, etcetera. 

MS BARTER: Yes. 

MS WRIGHT: And do the young people know them by their title, Youth Custodial Officer? 

MS BARTER: Yes. 

MS WRIGHT: Are they uniformed or in plainclothes? 

MS BARTER: Yes, they are uniformed. 

MS WRIGHT: Do you have a view about whether the word "custodial" is helpful when seeking to provide for the most healing environment possible for a young person? 

MS BARTER: Yes, I do. My view is that the officers who are working for children need to be youth workers, and they can have custodial training as well as youth training. My view is they should be wearing plainclothes so that they don't have that look that is very intimidating and punitive towards the children. My understanding is that's how it's done in Victoria. I worked at the Parkville Youth Detention centre in Victoria in 2011, and we wore plainclothes. 

And there was also a casual pool, which I was in, and we then – I used to work on the weekends so it meant that if the full-time pool is off work for whatever reason or they can't get staffing numbers, like I've been told recently, then there are many people who can work casually, and there are many people in the community working for various youth organisations, there are many people who are qualified in youth work or social work who would be able to work with these children and mentor them and give them the support they require. And then there will be much less incidents, in my view. 

MS WRIGHT: You would acknowledge that safety and security is essential in a detention centre and, therefore, there has to be some staff who deal with ensuring safety and security? 

MS BARTER: Yes, of course. 

MS WRIGHT: In the nature of custodial staff. 

MS BARTER: Yes, and the staff do need the training in restraining children but as the first witness, witness Jasmin said, they put a lot of time into training the staff on how to restrain children. Why isn't there more time spent on de-escalation, on speaking with children, understanding disability, understanding trauma so that they can communicate and de escalate. 

In my view, both police and officers at Banksia Hill and also prison officers for that matter would be a lot safer if they spoke to the people who they're looking after with respect and show that de-escalation techniques. All of us in all of our many years of working at the ALS working with some of the most violent offenders at both Banksia and adult prisons, we have never felt unsafe, ever and it's the way we are communicating with people and the way that we are treating them with respect. 

MS WRIGHT: And you have said in your statement that, in your experience, young people with cognitive disabilities can have difficulties self-regulating and following rules, and when the response of officers is punitive or otherwise not appropriate to the individual or young person's disability, those difficulties are compounded and it's perceived as acting out and misbehaviour. 

MS BARTER: Yes, that's right. My understanding is that the children go into the fight or flight response, which we all have. It's our innate response. And they often haven't learnt coping mechanisms. I asked some questions of Dr James Fitzpatrick during the Kimberley Youth Suicides Inquest a few years ago around how children with FASD will deal with punitive responses and changes in routine at Banksia Hill, and he explained that it's very difficult for children to regulate themselves when they are being dealt with in a punitive way, and when there is violence being the way that they are treated. Even just moving from one cell to the other, it's all done in an incredibly violent way. 

MS WRIGHT: And so whatever the title of the role, the people who are dealing with the children and young people on a day-to-day basis, the people who are currently fulfilling the function of Youth Custodial Officer, do you agree they have a very important role when it comes to ensuring that any new philosophy is successful? 

MS BARTER: Yes, that's right. And the current Case Planning staff, who are more of the caseworkers and youth workers, they could be integrated with the Youth Custodial Officers, either the same person being both roles or being more integrated and having more leadership and mentorship. The children have also said that the managers of each unit change around very frequently, so they are with different adults every day. So, some continuity and consistency would go a long way to being sort of a parental figure, I guess, for these children. 

MS WRIGHT: Do the children tend to move around themselves? Or do they stay within the one unit or cell throughout their particular term? 

MS BARTER: I've been told that many are moved around. I'm not exactly sure of the reasons for that. 

MS WRIGHT: And, again, you might not be able to answer, but, to your knowledge, do the Youth Custodial Officers work together with the non-custodial staff such as the Education staff and the Program staff, or do they tend to work in relative silos when it comes to planning for what the young people need? 

MS BARTER: I don't know specifically. But my perception is that it's quite separate. 

MS WRIGHT: Now, you've set out in your statement that ALS has made many complaints to the government, including about the amount of time that young people spent in their cells, and you recorded in those letters your concerns about the prevalence of neurodevelopmental impairment among the detainees and the practices at the centre. You have provided to the Royal Commission responses you have received, and you said you consider them to be inadequate. 

In the most recent response, the Minister informed you, as has been announced publicly, that there has been an announcement that $25.1 million has been announced for improving youth detention services, and that includes money for critical infrastructure at Banksia Hill, including for a new Crisis Care Unit. Do you wish to comment on those initiatives? 

MS BARTER: Yes, I might let Mr Collins comment. 

MR COLLINS: Our concern is those initiatives will focus excessively on infrastructure at Banksia Hill Detention Centre to the detriment of everything else. And that was reflected in a meeting we had with the Minister in February, March this year where that issue was discussed. The focus is, from what we gleaned from the Minister, on improving the infrastructure in Banksia Hill so, for example, detainees can't climb on the roofs of units, precluding them from climbing on an internal fence within the unit as well and a very strong focus on officer safety. Which we understand implicitly is very important and can't be ignored. 

However, the Minister also made a comment that they were going to construct units within Banksia Hill to deal with the mad and the bad. So, that was the characterisation he placed on it. Two units, one for the mad and one for the bad. And I think it speaks volumes as to the level of engagement in that portfolio, when that sort of language is being used. 

MS WRIGHT: So where do you say that comment was made? 

MR COLLINS: At the meeting that ALS attended, and myself and Ms Barter were there when the Minister used those very words. 

MS WRIGHT: Did you hear those words, Ms Barter? 

MS BARTER: Yes, I did. 

MS WRIGHT: Now – I'm not seeking to question what you said, Mr Collins. You've said to the Minister in your correspondence, Mr Collins, that you think this is likely a once in a lifetime opportunity to make some tangible and sustainable change at Banksia Hill. 

MR COLLINS: That's correct. 

MS WRIGHT: And do you have a view about the wisdom or otherwise of having a single detention centre for young people in a state as large as Western Australia? 

MR COLLINS: It's a vexed question. On the one hand, with a detention centre being in Perth, you have young people from, say, Kalumburu at the very tip of Eastern Kimberley in Western Australia being transported thousands and thousands of kilometres to Banksia Hill and the dislocation from family, community and culture which flows from that inevitably. But on the other hand, if a new detention centre was built, for example, in the Kimberley, the expression we use, "Build it and they will come." 

So it makes it much easier for courts to, for example, remand a young Aboriginal person in the Kimberley to a detention centre that they know is in the Kimberley. And the West Kimberley Regional Prison outside of Derby is proof positive of that. Almost all the prisoners in that prison are Aboriginal, and it is touted as an Aboriginal prison. 

I think – if I can expand, I think if there is consideration to be given by government about decentralising, for want of a better word, the focus needs to be, as I said earlier, on engaging Aboriginal communities and Aboriginal community-controlled organisations in the design of perhaps a facility which enables young people to get on Country, to reconnect with culture, and so on and so forth as an alternative to the stark, Dickensian conditions which obviously exist currently in Banksia Hill, in my view. 

MS WRIGHT: Are you aware of any therapeutic communities that exist within the correctional system, the adult correctional system in WA? 

MR COLLINS: There's – there's Wandoo – I have forgotten the correct title of it, but Wandoo is a women's prison which is used for women who are leading up to the end of their sentence or towards their parole eligibility date as a transition process to going back into the community. Aside from Wandoo, to my knowledge, there's nothing else. 

MS WRIGHT: But there is an example of it having been done in your state? 

MR COLLINS: Yes, that's correct. 

MS WRIGHT: Now, in terms of the new operating philosophy, to your knowledge, has the Minister referred to it as being a trauma-informed model of care or a trauma-informed approach for young people? 

MR COLLINS: I believe so, yes. 

MS WRIGHT: You've set out in your joint statement some detailed recommendations, particularly at paragraph 77 to 78 of your statement, about how to improve youth detention. Clearly, there's quite a lot to be done. As a practical matter, apart from obviously the cessation of the excessive lockdowns which are in issue, what are the main changes you would like to see implemented. And if you could focus from a perspective of young people with disabilities, and if I could ask all of you to answer that question. And perhaps starting with you, Ms Greenoff. 

MS GREENOFF: I think it needs to – there needs to be more First Nations people working within the system, whether that be them being employed by the Department of Justice or them coming in from a non-profit organisation. They – from working with the Youth Engagement Program, I can see the success that we have with engaging with our First Nations children with disability, and I can success with the NDIS plans and the understanding of the diagnosis within the family. 

So, I think that there needs to be a culturally safe way of – whether it coming through in admissions, of them knowing, okay, this young person has a disability, what supports are we going to provide this young person whilst they are in – on remand, in custody, whatever you would like to call it. But it also needs to be followed up, obviously, with medical professionals but Indigenous people need to be – have engagement with that medical professional to actually let the young person understand what is actually going on as well. 

MS WRIGHT: You referred to the success of the YEP program. Is that funded by the Department of Justice? 

MS GREENOFF: That is correct. 

MS WRIGHT: And one of your suggested changes is to – for there to be a partnership between the Department and YEP to provide adequate numbers of staff, professionals and youth workers and ensure young people in detention are not being locked down in their cells. What is that getting at, that there should be an expansion of the YEP program in some manner? 

MS BARTER: Yes, I think that particular part was if the Department are saying they can't get the staff immediately, then there are other workers in the community who could be seconded or could go in as an urgent measure, and, long term, it might look a bit different from that. 

MS WRIGHT: And, Ms Barter, what are the main changes you would like to see apart from confinement practices being dramatically reduced? 

MS BARTER: As Ms Greenoff said, the training in making sure that it is culturally safe and having First Nations people working alongside non-First Nations people. Trauma-informed and disability care and de-escalation. There needs to a whole change from the punitive approach to mentoring the children and the ensuring that they are rehabilitated, that they are getting education, should be the Department of Education running the school, not the Department of Corrective Services. 

There should be more medical support. Again, there should be medical support from Department of Health services, not the Department of Corrective Services. The list is very long. We should also raise the age to make sure that the 10, 11, 12 and 13 year olds are not being held in custody at all. Raise the age to at least 14. The ALS's view is also there should be a minimum age of incarceration of 16 so that whole young cohort can be managed in the community with early intervention, family support, wraparound holistic services. 

MS WRIGHT: And, Mr Collins, what would you like to see? 

MR COLLINS: I think Ms Barter and Ms Greenoff have covered it. A couple of other things. I think there needs to be a comprehension health assessment undertaken when a young person first enters Banksia Hill to enable the diagnosis of all of the conditions that all of us are very familiar with, not the least of which is hearing issues because it is well established that Aboriginal people have poor hearing, often diagnosed. 

The other reform I would like to see is the availability of interpreters within Banksia Hill Detention Centre. There are no interpreters used, to my knowledge, and I have witnessed education classes undertaken by clients of mine, who speak an Aboriginal language as their first or second language, in English and I have asked them, "Did you understand what was being said in your school class?" And the answer is no. And I think that's something that can be easily remedied if the resources are there. 

One final thing. One of the positives in Western Australia is that we have an Inspector for Custodial Services, which performs an invaluable role in shining a light on conditions in places like Banksia Hill. However, my concern about the Inspector's role is that most of the very helpful and useful recommendations are conveniently ignored by government. There should be reform of the relevant legislation to mandate a response by government where recommendations are made for reform and that those responses are tabled in Parliament and are open for scrutiny by Parliament. 

MS WRIGHT: In terms of adult prisoners, you have set out some recommendations in your statement. What sort of work does ALSWA do to support adult prisoners with disability in WA prisons? 

MR COLLINS: Sadly, not a lot. We are a legal service, and our remit, if you like, is the provision of legal services to our clients. So, in the criminal law domain in particular, we will be dealing with clients on remand. We will do our best to try and assist them. We've got a Bail Support Service which is focused on getting people out of custody, but in terms of providing practical assistance to adult prisoners on remand, our capacity is very limited. 

When it comes to the client cohort who are sentenced to terms of immediate imprisonment and they go to jail, our role is almost non existent because we will do the work in court, but post sentence, we don't have any real capacity or resources to be able to provide consistent ongoing assistance to our clients, and the biggest group in all of those are clients in jail with disabilities. 

MS BARTER: Unless it's in – 

MS WRIGHT: No equivalent to the youth – sorry, Ms Barter. 

MS BARTER: Sorry, I thought I would just add that unless it's in relation to the complaints about the condition, because then my team assists with that, and we have many, many men who experience trauma in Banksia Hill who are now experiencing isolation and confinement and more trauma in adult prisons. 

MS WRIGHT: And you have provided to the Royal Commission letters have you written to the Director of Health Services requesting supports such as adequate medical treatment for clients? 

MS BARTER: Yes. Both mental health treatment and a physical health treatment. We have written many, many letters. Approximately about one a week, we would normally write. 

MS WRIGHT: And you have also mentioned that a matter of grave concern is the heat conditions at the Roebourne Regional Prison where you have drawn attention to the Inspector's reports over about 20 years, drawing attention to the very high temperatures over summer and the lack of effective heat control, climate control? 

MS BARTER: Yes, that's right. Temperatures in Roebourne town have known to be over 50 degrees celsius and the actual cells at Roeburne Prison, they have been much higher than that, in the mid 50 degree celsius, and there is no air-conditioning for the men. There is air-conditioning in the women's cells. And there was air-conditioning installed a couple of years ago in the staff toilets. 

MS WRIGHT: Mr Collins, in terms of adult prisons, you have expressed concerns about the High-Risk Offender legislation earlier in your evidence. I wonder if you could outline the nature of your concerns and how they effect, in particular, people with disabilities? 

MR COLLINS: I can. Thank you. I think one of the primary issues for me is that the High-Risk Serious Offender legislation superseded the Dangerous Sex Offender Act in Western Australia and the new legislation widens the scope of the sorts of offences which can be the subject of a high-risk serious offender application very considerably. 

So, whilst under the Dangerous Sex Offender Act applications could be only made in relation to the commission of serious sexual offences, both involving sexual violence and serious sexual offending against children, the new Act enables applications to be made in relation to offences of violence, murder and manslaughter and so on, which is understandable, but it also includes offences such as lighting or attempting to light a fire likely to injure, an act or omission causing bodily harm, or where the health, safety of someone will be endangered. 

So, that would involve someone, for example, throwing a rock at another person and it missing. It also includes deprivation of liberty, stalking, robbery, assault with intent to rob, breach of duty of person in control of ignition source or fire and criminal damage by fire. Which of course, in a practical setting, may – and we have a lot of clients who are charged with criminal damage by fire where they have set fire to a wheelie bin. And that offence will be dealt with in the District Court, punishable by a maximum of life imprisonment. 

So, that's part of it. So, there's a wide scope of potential offences that can be the subject of applications. But the issue is very acute for Aboriginal prisoners because, self evidently, Aboriginal prisoners come from backgrounds of considerable disadvantage and dysfunction. They have trauma histories. They end up in jail. They don't have access to any programs whilst on remand, and their ability to participate in rehabilitative courses and such like while serving sentences of imprisonment is very limited. 

They don't have the skills or the wherewithal to be able to actually enrol, and because the courses are often not culturally specific – or by dint of their disability, they do not have, if they do enrol, the capacity to complete them satisfactorily. So, that means, having not completed the programs that they have been expected to complete, they will be denied parole if they apply for it. 

That means that they then complete the entirety of their sentence, or those – many, I should say, simply do not seek to be released on parole and complete the entirety of their sentences. Those sorts of prisoners serving offences – serving sentences for serious offending are often have multiple prior convictions for serious offences. They are the perfect candidate for Dangerous Sex Offender applications and I am unaware of any Aboriginal person the subject of an application who has avoided either a custody order or a supervision order. 

So, as far as I'm aware, every single Aboriginal prisoner who has been the subject of an application under the Dangerous Sex Offender Act has had – sorry, High-Risk Serious Offender Act has had an order made against them. And, of course, a custody order has the potential to be a form of indefinite imprisonment. 

CHAIR: Ms Wright, we have been going for two hours. How long are you likely to be?

MS WRIGHT: I'm finished. I had one more question but I  

CHAIR: Ask the one more question. I just think people may need a bit of a break. That's all. 

MS WRIGHT: Yes, yes. To be clear, Mr Collins, the Act provides for both detention orders and supervision orders and the – 

MR COLLINS: That's correct. 

MS WRIGHT: And I just wanted to ask you, in terms of the supervision orders, for people with a disability that might include a cognitive disability, have you made any observations about their ability to comply with then the conditions to which the supervision order is subject, or is that a matter which, in your experience, is taken into account by the court when it determines the conditions to which the person will be subject? 

MR COLLINS: Well, the Act is – the Act is structured so that it is – it's nigh on mandatory that a raft of conditions will be attached to a supervision order. In the normal course of events, there are north of 50 conditions attached to supervision orders. Most of the Aboriginal people with disabilities on such orders are comprehensively incapable of complying with them. 

They – we've – ALS acted for a client – we didn't appear at the High-Risk Serious Offender Act application, but we acted for him during the course of his criminal proceedings. He got a supervision order. He was on the brink of wanting to take his own life because the number and the nature – onerous nature of the conditions were such that he couldn't cope. And I heard the other day that another Aboriginal person on a supervision order took his own life because of what was expected of him on the order. 

MS WRIGHT: Could I thank you all. They are my questions, Chair. 

Chair: I will ask my colleagues, if I may, if they have questions, if we can just keep them reasonably brief because of the time. Yes, first Commissioner Mason. 

COMMISSIONER MASON: Thank you, Chair. I don't have any questions. I think the information and your statement is very comprehensive so thank you very much for your evidence today. I just want to say one thing for First Nations people following this hearing, hearing this evidence, particularly the evidence that has been presented this morning. 

Professor Megan Davis, who largely wrote the Uluru Statement from the Heart, talked about the fact that the Aboriginal people are the highest incarcerated people on the planet, and you talked about Western Australia being the highest, one in 15 Aboriginal men in custody as we speak. I just wanted to say that Professor Megan Davis said in an interview yesterday that law reform is about knowing there can be a better day, and it just shines a light on the work of this Royal Commission, how important our work is in relation to First Nations people, men and women, and young people, children, with disability in prisons across Australia today. Thank you. 

CHAIR: Thank you, Commissioner Mason. Commissioner McEwin do you have any questions? 

COMMISSIONER McEWIN: Thank you. I do have one question. Firstly, thank you to the three of you. The question I have is for any or all of you, is you mentioned at some point your access to the clients and the people in the prisons. For example, Mr Collins, you said you had maximum one hour with your client yesterday. Just more broadly, how would you describe the ease or not of the access that you have to your client?  Is it straightforward or is it problematical? If they call you, can you be there quickly? How would you describe broadly, and in the limited time we have, the access? 

MS BARTER: It really depends on the different prison. So Unit 18 is particularly bad because the adult prisoners need to have their time in the social visits. So, that one hour is between 8.45 and 9.45 am each weekday. It's very difficult for us to get all the way down to Casuarina Prison. It is very difficult for families as well. Banksia is normally pretty good to make sure we can get in to see our clients. The other prisons are usually pretty easy to get into to book in-person visits. 

Telephone calls, on the other hand, can be quite difficult, I know that adults can press a button to ring the ALS at the times when they will be allowed to access the phone, and we have a lot of phone calls from them. The children in Banksia and at Unit 18, I have been told, cannot call through to the ALS very easily at all. So, they have to wait for us to go and visit them to then report any concerns. So, it depends. In some cases, it's easier than others. 

COMMISSIONER McEWIN: Thank you. Did anyone else want to add? 

MR COLLINS: No, thank you. 

COMMISSIONER McEWIN: Do you mind, Ms Greenoff, you also try and refer people, how – what kind of access do they have more broadly to non-legal services? You talked briefly at the beginning about you try to refer people and connect people. Can you briefly describe how that is in practice and how easy that is? 

MS GREENOFF: In practice at Banksia Hill Detention Centre? 

COMMISSIONER McEWIN: Yes, or – yes.

MS GREENOFF: In general. To be honest, it's – we have days where we are challenged. Sometimes we get told by different departmental places such as the Mental Health Commission or Education or Housing that our client is too complex. So, it all depends on the individual themselves. I know that sometimes we can gain – these young people can gain access and be referred to other services. It all depends on the individual themselves. So, sometimes it can be challenging, and then sometimes it can be quite easy to do the referral. 

COMMISSIONER McEWIN: Thank you. And thank you again. 

CHAIR: Yes. I too would like to thank you for your evidence. At times, it's been graphic. It's not easy to listen to, and it's very important evidence for us in dealing with the issues that have been identified at this hearing and at other hearings and, of course, with other inquiries. However, it – we have been assisted also by the suggestions you have made for change and they are also very important suggestions which will be very helpful to us in formulating recommendations to address the issues that have been identified. 

So, thank you very much for the thoughtfulness with which you have approached giving your evidence, both in your written statement and the oral evidence today. We are very grateful to you. Thank you. 

MS BARTER: Thank you. 

MR COLLINS: Thank you.

<THE WITNESSES WITHDREW 

CHAIR: Ms Wright, it's now just after 8 minutes past 11 in Perth. Should we adjourn until 25 past?

MS WRIGHT: Yes. 

CHAIR: Alright. We will adjourn until 11.25 Perth time, 1.25 Sydney time. 

<ADJOURNED 11.08 AM

<RESUMED 1:30 PM

CHAIR: Yes, Ms Wright. 

MS WRIGHT: Commissioners, you will now be hearing from Mr Eamon Ryan, the Inspector of Custodial Services of Western Australia. And his statement is found at Tender bundle C.1, tab 1. Past reports of the Inspector and of his predecessor insofar as relevant are found in Tender bundle D, and I will be referring to some of that material during Mr Ryan's evidence. I understand he will take an oath. 

CHAIR: Yes. Mr Ryan, thank you very much for the detailed response you have provided to the notice to give information. We have got that document and we have, of course, read it and thank you also for coming to the Royal Commission in Perth to give evidence today. Just to indicate where everybody is, Commissioner McEwin is with you in the same hearing room. Commissioner Mason is located in Brisbane and appears on the screen. I am in the Sydney hearing room, and Ms Wright is also in the Sydney hearing room. So we are somewhat scattered, but the technology has been working remarkably well so hopefully all will proceed smoothly. If you will be good enough to follow the instructions of Commissioner Mason's associate, she will administer the oath to you. 

ASSOCIATE: I will read you the oath at the end please say yes or I do. Do you swear by Almighty God that the evidence which you shall give will be the truth, the whole truth and nothing but the truth? 

MR RYAN: I do. 

CHAIR: Thank you, Mr Ryan. I will now ask Ms Wright to ask you some questions. 

<EAMON FRANCIS RYAN, SWORN 

<EXAMINATION BY MS WRIGHT SC

MS WRIGHT: Mr Ryan, first, if you could first state your name for the record? 

MR RYAN: Eamon Francis Ryan. 

MS WRIGHT: And you are the Inspector of Custodial Services of Western Australia. 

MR RYAN: That's correct. 

MS WRIGHT: And you were appointed in May 2019 for a term of five years. 

MR RYAN: Yes.

MS WRIGHT: What's your professional background, just briefly? 

MR RYAN: I have a background in governance and compliance. Prior to being appointed to this role I was the Executive Director, Integrity and Risk with the Public Sector Commission in Western Australia. And prior to that I was Executive Director of Professional Standards and Conduct for the Department of Education in Western Australia for a period of 10 years. 

MS WRIGHT: And you hold your current position under the Inspector of Custodial Services Act 2003 of Western Australia? 

MR RYAN: That's correct. Yes. 

MS WRIGHT: And that enabling legislation requires you to inspect every prison and detention centre in Western Australia, among other places, at least once every three years? 

MR RYAN: That's correct. 

MS WRIGHT: And what does an inspection typically entail? Is it a single visit or something that's conducted over time? 

MR RYAN: Well, the actual statutory inspections that you refer to are a single visit, and that would be over a period of several days or possibly even over several weeks. The inspection process, if you would like me to briefly outline it for you? 

MS WRIGHT: Just briefly, thank you. 

MR RYAN: It's quite comprehensive. We announce the inspection several months before the site component. We gather a range of documentation from the Department and from the facility. We undertake surveys of staff and prisoners or detainees. We can conduct service provider meetings, so all of those NGOs that visit the prison to provide services, we meet with them. And then there's a lot of work and preparation analysis and planning before the actual site visit. 

During the site visit of the inspection, we meet with the senior management team, we meet with officers, we meet with health staff, program staff. We meet with prisoners. We hold focus groups and forums and gather a range of information. And then we move from each unit to the various workplaces and just have informal interactions and conversations with prisoners and with the staff. From that, we prepare some review notes and we will prepare a debriefing, and a copy of that goes to the Commissioner and the Director General and the Minister and the Parliamentary Public Administration Committee. 

We then go away and do enormous amounts of analysis to prepare our draft inspection report, which is provided to the Department that's required under section 37 of the Act. The Department is given an opportunity to respond to the draft report and the proposed recommendations, and then once that's received the report is finalised and it's delivered by me to the Speaker and President of the respective Houses, where it sits for 30 days before it's actually tabled and published. 

MS WRIGHT: As part of your answer, you said that you identify detainees to speak to, and then you referred to also speaking to them informally when you are in the detention centre or prison, I take it. 

MR RYAN: Yes. 

MS WRIGHT: How do you identify the detainees to speak to? 

MR RYAN: Okay. So, there would be groups that we would ordinarily speak to, and within that might be, for example, Aboriginal prisoners, it might be out of country prisoner, it might be foreign national prisoners. We will usually meet with peer support prisoners or prisoners who are involved in some sort of consultative councils. So, they are the kind of generic groups we would meet with. 

But we also, if we have particular concerns about an issue within a facility, our staff have access to the department's Total Offender Management System or TOMS system. So, we can look at and put together lists of prisoners that we want to speak to who may have a particular category. For example, it could be prisoners with disability, who are flagged as having a disability, and then we will arrange to have particular meetings with them, or we may go and seek them out in their workplace or in their accommodation unit. 

MS WRIGHT: Has that ever occurred, that you have identified prisoners to speak to by reason of the fact they have disability? In other words, you have wanted to hear from people with disability who are in prisons or detention centres? 

MR RYAN: I would say not – well, certainly, in my time, not specifically a group of prisoners with disability, but we would – through our engagement with the other the prison groups, specifically Aboriginal prisoners, we will come into contact with and meet with prisoners with disability. It's often been my experience that just in walking around the units, we will come across prisoners particularly with a cognitive impairment, and we will informally interact with them and often talk to their peers and their peer colleagues, their prison colleagues, about how they are taken care of and how they are looked after and that kind of thing. 

MS WRIGHT: And are there any arrangements to ensure that prisoners and detainees are able to speak to you confidentially and without fear of retribution or other consequences? 

MR RYAN: Yes, well, our office has been established now 20 years in Western Australia, and we have free and unfettered access, and that's well understood in the prison system. So the only time there would be a restriction on us accessing a prisoner or being able to speak confidentially with them would be if there is a particular security risk factor involved. And that might – you know, for example in the Casuarina prison, there is a unit called the Special Handling Unit where particularly dangerous or volatile prisoners are held. 

We would still have full access to that unit but we might speak to the prisoner through the door or we might speak to them in a common area where custodial staff are present to provide a safety barrier, but they are at a sufficient distance, so we are able to have that conversation. I have experienced no barriers to confidentially speaking to prisoners or staff, for that matter. 

MS WRIGHT: Now, in addition to the inspection function, you have a power under the legislation to review a custodial service. I just wanted to ask you about that. That's defined to include the management, control or security of the prison or the security control, safety, care or welfare of prisoners. So, you seem to have power to specifically consider safety – I'm sorry, care or welfare of prisoners, and it can even include a review in relation to particular prisoners or detainees. 

Now, does that power – is that an adjunct to your inspection power or part of what you do as part of an inspection and does it mean in principle that if you were to hear that the treatment and conditions for prisoners, say, with disability were compromised in a particular custodial setting or there was a particular issue across custodial settings affecting people with disability, that you could conduct a review – a particular review looking at disability issues? 

MR RYAN: Yes. Yes, it does. So the review function is a separate function. It's a separate team within our office. And, very simply, it's the power to undertake thematic reviews. The catalyst might be, as your question prompted, particular concerns about a particular individual or groups of individuals, and I can give you some examples of the sorts of reviews we have done that have been prompted by that. 

My predecessor undertook a review and published a report into prisoners' access to secure mental health. That what's was prompted about concern about the treatment of two particular prisoners who were transferred to the state's secure psychiatric hospital, so that – those particular instances were the catalyst to prompt the wider review. 

And we have also done reviews and published more recently into, for example, smoking, into older prisoners, into prisoners – into the care and management of prisoners requiring protection. They are not specifically disability-focused topics, per se, but there is a high incidence of prisoners with disability, particularly cognitive or developmental disability, in those cohorts of prisoners. 

MS WRIGHT: Yes. We heard some evidence this morning from a practitioner that he's told by kids in detention they can't understand the education because of a language barrier and his view that there should be screening for hearing, for example, given the high prevalence of hearing impairments in Aboriginal First Nations young people. So, in theory – I'm not suggesting that you need to do this sort of review, but in theory, under the Act, you could conduct a thematic review into that kind of issue, for example, screening of young people for hearing or whether there is adequate access to education for young people for whom English is not a first language? 

MR RYAN: Yes, absolutely. Our planning process for our review has a reasonably long list of potential topics, and one of them is around screening for hearing or for hearing loss or for hearing impairment. It's not something that we have directly on our radar in our immediate work plan, but it's certainly one of those topics that is on our radar for the medium term. 

MS WRIGHT: And what is your capacity to deal with individual complaints? If you receive a complaint, for example, from a person with disability about something that might concern their disability support needs in custody, your reviews being more systemic, looking at systemic issues, how do you deal with individual complaints? 

MR RYAN: Okay. So, where we – our Act is very specific. We can receive complaints, but we can't act on them. So, we don't resolve the complaints. If I was to receive a complaint of the nature posed in your question, there will be a number of options available to me under my Act and that would be – the obvious one would be refer them to the Health Complaints Commission, the Health and Disability Complaints Office in Western Australia, and they are co located in the same building as us so we have a good relationship with them. 

I could also refer the complaint to the Ombudsman, if it was a matter of administration. But I can also use a complaint to inform the work of our office. So, I could use the complaint as a catalyst to look at, as you suggested, access to hearing assessments and that kind of thing. So, there is a multitude of what I can do, but I can't actually deal with the complaint itself as to determine the merits of it one way or the other. 

MS WRIGHT: Your office has a Code of Inspection Standards for adult custodial services. 

MR RYAN: Yes, it does. 

MS WRIGHT: And there is also a Code of Inspection Standards applicable to youth justice. 

MR RYAN: That's correct. 

MS WRIGHT: You are not the author of either of those Codes. 

MR RYAN: The revised Code of Inspection Standards were produced during my tenure. We coordinated the project. I won't claim that it's all my work. I've got a team of very capable people in the office who worked on that. But that was published in my tenure. So, that was about a review of the existing standards benchmarked against national and international human rights standards, and then we published it. It looks very different to the previous ones, and we have just commenced a similar exercise in respect of the youth justice standards. So, they are quite dated, and we are commencing that work. It's in the very early stages. 

MS WRIGHT: Commissioners, just for your information, the Code for Inspection Standards for adults is found at Tender bundle D, tab 8. Now, that Code, the revised Code of Inspection Standards for Adult Custodial Services, as you say, refers to a number of international treaties and conventions, including the Convention on the Rights of Persons with Disabilities and includes a section – part 6 relates to disability, starting at page 68. 

And it contains, as you would obviously be familiar, Mr Ryan, components that deal really with all aspects of the custodial experience for prisoners with disability, from screening to duty of care, bullying, requests and complaint, accommodation and disciplinary procedures, daily life, health and support, security and rehabilitation and reparation. It seems to deal with the standards which you – well, your office expects the prisons to apply rather than, perhaps as the title suggests, the standards which your office applies in conducting the inspection. In other words, it's the things you look for in the prisons that they should be complying with. 

MR RYAN: Yes that's correct. So, you see the way the standards are structured, they largely follow the prisoner's journey from arrival at the prison through to day-to-day living and, in this particular case, on the screen is the early days in custody. And the objective is it sets a standard that we expect the prison to meet, and we – when we do our inspection work, that's the fundamental basis upon which we measure the performance of the prison back to that standard. 

So, it's – in a sense it's a combination of both propositions put in your question. It is the standard we use for our inspections, but it is also the standard that we expect to see delivered in the prisons. And it's not prescriptive. They are more rights-based standards. And the prison can meet those standards in many different ways, not just in the – in the measures that we have identified, which are the most common measures. You know, the standard can be met by providing a different service in a different way that still meets that fundamental standard. 

MS WRIGHT: But you do actually apply those codes, do you, in conducting your inspections? They are not merely aspirational. They are a benchmarking tool for you? 

MR RYAN: Yes. When we – when we do our inspection planning document, the individual officers will be allocated particular functional areas, and also spatial areas within the prison. And when they are preparing their planning documentation and notes, they always refer back to the standard that's applicable to that particular area of their focus. 

MS WRIGHT: Okay. And you've said that the youth justice equivalent document is under review. 

MR RYAN: That's correct, yes. 

MS WRIGHT: Is that right? 

MR RYAN: Yes. 

MS WRIGHT: And is there a particular timeframe for that to be completed? 

MR RYAN: Well, it is – it's a body of work that we are doing in addition to our standard inspection work and our standard review work. So, I would hope that it would be finished within the next 12 months, but I don't at the moment have a set deadline. It is just one of those – one of the many things we are trying to do, and now we have started, it just won't be something that will be allowed to wither; it will be something we will push along with.

MS WRIGHT: I'm not certainly not suggesting you are not working hard enough. The reason for my question was really that the Department's talking about a new operating philosophy, and your standards seem to be quite a good starting point for benchmarking any new operating philosophy which would include a trauma-informed approach which has been urged on government for the better part of a decade. Would you agree that the Codes are relevant  

MR RYAN: Yes. 

MS WRIGHT: – in that exercise? 

MR RYAN: Yes, if you look through the – and I presume you're talking about now in the youth space. 

MS WRIGHT: Yes. 

MR RYAN: Yes. The – the – even the old youth justice – youth custodial standards will regularly refer to a trauma-informed model of care or a trauma-informed practice or a practice that takes into account the existence of trauma and disability and those sorts of factors. So, yes, your question is, are they relevant to the development of an operational model? Yes. 

MS WRIGHT: And for your future inspections in determining whether the new operating philosophy is addressing the concerns which you've expressed in your most recent report about Banksia Hill? 

MR RYAN: Yes, but I think the operating philosophy will be different to the inspection standards. You know, our revised inspection standards for youth will – will look and feel very similar to the revised adult standards. But I think the operating philosophy and the operating model will be the method or the system-level approach that the Department and the justice – and the Department of Justice and the detention centre will take in trying to meet those standards. They don't necessarily – one precedes the other. 

MS WRIGHT: In terms of youth justice, Banksia Hill is a centre which is 20 kilometres south of Perth. Is that right? 

MR RYAN: Give or take, yes. 

MS WRIGHT: And it's been the state's only juvenile detention centre since 2012? 

MR RYAN: That's correct. 

MS WRIGHT: It opened in 1997 and was amalgamated in 2012 with a remand centre? 

MR RYAN: That's correct. 

MS WRIGHT: And since that time, it's housed all male and female detainees, both sentenced and remand, from 10 to 18 years of age and from every part of the state? 

MR RYAN: That's correct, yes. 

MS WRIGHT: And that approach is unique in Australia? 

MR RYAN: I think Western Australia – with the exception of perhaps the ACT, I think Western Australia is the only state with a single facility for youth detention. 

MS WRIGHT: In terms of 10-year-olds, do you know if there are any 10-year-old children currently detained in Banksia Hill? 

MR RYAN: I do have that number here. I'm pretty sure the answer is no, but if you will just permit me I can – I can be certain. 

MS WRIGHT: Certainly. 

MR RYAN: Okay. So, the data that I have is data that was prepared for me on 21 September. And the breakdown of age, the youngest child in detention is 13 years old. And there are nine children who are 13 years old, and they are the youngest. And as far as children at the Unit 18, just pre-empting the next question, the youngest is 14 and there are two children who are 14 as at that date. 

MS WRIGHT: Do you make any – obviously, the population would change over time. Do you make any particular effort to see from the younger cohort of children, from 10 up? 

MR RYAN: I'm sorry, could you clarify? I'm not sure of the question. 

MS WRIGHT: When you are conducting an inspection and seeking to hear from children and young people at Banksia Hill, do you make any particular effort to hear from the younger cohort, whether it be 10-year-olds or 11-year-olds, if indeed are present. Do you inform yourself as to whether there are younger children there and do you seek to see those children? 

MR RYAN: Yes, yes. There's a – a case not that long ago where there was a person who was aged 10 in detention, and we made a particular point to – not during an inspection, outside of an inspection, to make several visits to the facility to meet and speak with that person and to speak with the staff and the multi-disciplinary team that were managing the care of that person to satisfy ourselves that the care was as good as it can be for a 10-year-old in prison. 

MS WRIGHT: Is there any separation of the children at the lower end of the age range from the older children? 

MR RYAN: My understanding is, that certainly at that point, they did try to accommodate younger children together, or with more stable sort of slightly older children. I understand – and I'm going from memory, so please don't hold me to this – but I understand that, in the past, very young children may have been held in the girls unit, Yeeda, as well but that's just a recollection. I can't point you to a fact on that. I'm sorry. 

MS WRIGHT: Well, the children, adolescents and young adults have vastly different levels of physical and intellectual and emotional development. So, it would be important, wouldn't it, that they weren't all in the one place? 

MR RYAN: Yes, absolutely. In one unit or in the one facility?

MS WRIGHT: Well, in the one physical space, whether that be a unit or a unit within a unit. That they are physically separated. Is that important? 

MR RYAN: Absolutely, yes. You wouldn't want a 10 or 11-year-old in the unit – in the same unit and accessible by a 17 or 18-year-old person for obvious reasons. 

MS WRIGHT: And is it part of your role to check that that's not occurring? 

MR RYAN: Well, that would be something we would not go to specifically address, but it's something that we would look at during the course of our inspection, you know, who is accommodated in which unit and whether those sorts of factors are being taken into consideration. But I – I would have to say, I haven't got specific concerns that we have identified or that have been raised with us that that is a particular issue, that you have a 10-year-old in the same unit as an 18-year-old or a 17-year-old. The – the centre usually addresses that reasonably well. 

MS WRIGHT: Since you commenced in May 2019, have you issued two reports about Banksia Hill? 

MR RYAN: Yes, that's correct. 

MS WRIGHT: One in April 2021, and that was Report 135, and 1 March of this year, and that was Report 141. 

MR RYAN: Yes, that's correct. 

MS WRIGHT: And your predecessor Neil Morgan issued reports, and from 2013, he issued reports in 2013, 2015, 2017 and 2018 about Banksia Hill Detention Centre. 

MR RYAN: Yes, that's correct. 

MS WRIGHT: And you are familiar with generally – generally with that fact. 

MR RYAN: Yes, generally. 

MS WRIGHT: And it's fair to say that you've raised similar issues in your reports as he had raised in terms of the absence of an effective operating philosophy or, indeed, any cohesive operating philosophy at the detention centre? 

MR RYAN: Yes, that's correct. In my preparation for this appearance today, I went back and read some of the overviews of those older reports, and there's a striking similarity to the work that we did in Report 135 and 141. 

MS WRIGHT: And the conclusion you've reached in your latest report is that Banksia Hill Detention Centre is not fit for purpose as a youth detention centre. And you've said it looks like and in many respects runs like an adult prison. 

MR RYAN: Yes, that's correct. 

MS WRIGHT: Even to the point where there are adult prison officers stationed there to assist in maintaining order and security and someone is helpfully bringing that up on screen. 

MR RYAN: Yes, that's correct. 

MS WRIGHT: And even to the point where there are adult prison officers stationed there. And you have referred to staff shortages and the deployment of response teams from the Department's Special Operations Group. You said in that report at page (iv) that many of the young people have significant impairments, traumatic backgrounds of abuse and neglect, and diagnosed complex neurological disorders. That's towards the bottom of page (iv). And you went on to say that:

"This tells us that the management and care of these children must be trauma-informed and evidence-based with, at the very least, an equal focus on welfare needs alongside custodial needs."

MR RYAN: Yes, that's correct. 

MS WRIGHT: So coming back, then, to your final conclusion, it's not fit for purpose, they're plain English words, but can you elaborate on what you mean by that specifically? 

MR RYAN: Well, I guess what I'm saying there is that the one – history has shown that the amalgamation of the two facilities, the remand facility and the Banksia – and the sentence facility into one hasn't been a success. The absence of a trauma-informed model of care is a critical factor. The focus and – and I don't make light – much as the witness prior to me, I don't make light of the need to maintain the safety of the staff and the security of the facility, but the views expressed in our Report 141 is that that ought to be addressed with equal priority to welfare – a welfare focused trauma informed operating model of care. 

I don't think one is a precursor to the other or one needs to precede the other. I think both, and I say this in the report, I think both need to be implemented hand in hand at the same time. 

MS WRIGHT: Because you can't have an effective, trauma-informed approach unless everyone is safe? 

MR RYAN: That's correct, yes. 

MS WRIGHT: That's putting it simplistically, but, essentially, safety is important for that reason. 

MR RYAN: It is. 

MS WRIGHT: But in saying it's not fit for purpose, you're not just referring to matters of infrastructure or physical environment, although is that included in your conclusion? You're referring to workforce and training and the lack of an overarching rehabilitation focus for kids? 

MR RYAN: Yes, it's all of those things. It's the focus on security, on hardening the regime, anti-climb fences, barrier management, security focus, staff presence. It is those things and it is also the absence of that welfare-focused, trauma-informed practice. My view is that the welfare-focused, trauma-informed practice is the means by which you ensure the safety and security of the facility. 

MS WRIGHT: And, in other words, if kids were properly supported in the most healing environment, therapeutic environment possible, there may not be such significant safety concerns arising from critical incidents? 

MR RYAN: That's my view, yes. 

MS WRIGHT: Is that what you mean? 

MR RYAN: Experience has shown – and, again, I don't have data on this, but experience and certainly from the people I have spoken to in recent weeks, we can't identify or recall a situation where the children at Banksia Hill who were acting out were abusive or assaulting or intimidating a non-custodial staff member. So, my experience in talking to young people in detention is that they were respectful, and that's been the experience of my staff and that's been the experience of staff of other agencies and, shall we call them, civilian staff within the custodial setting. 

MS WRIGHT: Could I just take that further. When you refer to the custodial staff, you are referring to predominantly the Youth Custodial Officers. Are they the staff that have most contact with the young people? 

MR RYAN: Yes. Yes. That – the answer is yes to both of those. 

MS WRIGHT: And most of the critical incidents arise from assaults or actions which are perceived as behaviour directed to Youth Custodial Officers by the young people? 

MR RYAN: Directed to or at or in defiance of or resistant to what the Youth Custodial Officers are wanting them to do. For example, at a particular time, there might be six or eight young people out of – in the wing of an accommodation unit. The Youth Custodial Officers may come to them to say, "Right, it is 4.30, you have to go back into your cells" and then there is a reaction to that. The focus point of that reaction is the Youth Custodial Officers and that's where the conflict arises. 

MS WRIGHT: And how important are those staff members to the successful implementation of a more rehabilitative approach and a new philosophy? They are critical, are they not? 

MR RYAN: Absolutely, yes. 

MS WRIGHT: And do you look at the training that they receive in disability awareness? 

MR RYAN: My – 

MS WRIGHT: As part of your job? 

MR RYAN: Yes, my understanding is that the training that Youth Custodial Officers get is part of their basic training, their initial officer training. And they do have training on disability and the natures and forms of disability, but beyond that, I don't think there is any particular ongoing, in the service training, you know, to build on those foundation blocks. 

MS WRIGHT: What you've said is consistent with the – what the Royal Commission has been told by the Department of Justice, that is, they receive three hours of disability awareness training at the Corrective Services Academy and a component of that is communication strategies, but not necessarily ongoing training or specific training in how to interact with a young person who may have a communication deficit arising from a disability which might not be obvious and the behaviour might look defiant and how to deal with that on a day to day basis. 

No one is suggesting it would be simple, but there needs to be training and ongoing training in managing that sort of situation. Your Code of Inspection Standards specifically deals with that and says there needs to be ongoing training in managing specific disabilities. 

MR RYAN: Yes, that's correct. 

MS WRIGHT: And is it your position that – I will come back to that. In terms of the new operating philosophy, you haven't made any specific recommendation about what that should look like or how it should be implemented. Can you tell the Commissioners your view, if any, about what the new operating philosophy should seek to implement? What are the elements of it? 

MR RYAN: We haven't been prescriptive for a particular, specific reason, and that is we don't want to stray into the executive function of determining how to run a detention centre. That would, I think, place us in conflict with our independence. But we have stated that there should be a trauma-informed operating model of care. This is not a new model – this is not a new idea; it is something we have advocating for some time. It is something that, in following this Commission, many of your witnesses who preceded me have advocated for before. 

And, in essence – and I don't profess to be an expert or a psychologist, but, in essence, it's a model of care that is centred around a trauma-informed practice. So, all of the staff have to fundamentally understand trauma, trauma in themselves, trauma in the people they are dealing with, understand the – how that will impact on the person's response and the person – and what – how it will trigger the individual's response. 

It would require an understanding of the individual's trauma. So, as the witness before me outlined in quite harrowing detail the trauma experienced by one person, and having a deep understanding of – the people managing that person, of that trauma is essential. You cannot manage a young person like that in the way that you would manage a similar aged, well functioning, well adjusted teenager who is just defiant, that they want to go to the party and you're not going to let them. They are fundamentally different approaches. 

MS WRIGHT: Is that partly behind one of the two recommendations that you did make in Report 141, which was to embed an additional welfare-focused non-custodial workforce to supplement the existing workforce? And there you were talking about the ISU. 

MR RYAN: Yes, that's correct. 

MS WRIGHT: Yes. Is that one component of a new operating philosophy, that there are more welfare focused staff? 

MR RYAN: Yes. 

MS WRIGHT: To give that attention. 

MR RYAN: Just to put some context around that recommendation, the ISU at that point – and the report sets it out – was in a significant crisis. The focus from the Department in response to our show cause notice and in response to our report focused almost entirely on security, hardening, increasing the number of custodial staff, extra recruitment and those sorts of things. So, it was a security response. I'm not being critical of that, because there were a heightened number of critical incidents where staff assaults and those sort of things. 

But there were also an increased number of self-harm attempts, suicide attempts, and it needed some sort of circuit breaker. That's what that recommendation was focused on. You know, you need to do something now. You can't wait six to 12 months to develop an operating model of care and get a consultant to do your philosophy and then fund that and train all the staff. It needed something – an immediate – and that's why I've used an immediate circuit breaker. Something to break the spiral of – that we were seeing in the centre. 

MS WRIGHT: And so what you would be expecting, then, for a circuit breaker is a prompt response by the Department to your recommendation? 

MR RYAN: Yes, that's what I had hoped, yes. 

MS WRIGHT: Has that occurred? 

MR RYAN: Certainly, the immediate circuit breaker hasn't been as fulsome as I would like. The young people that they have – the situation deteriorated even further to the point where they moved 17 or so young people to Unit 18 at Casuarina, and that's well documented and the Commission is aware of that. There are additional welfare supports in place out at Casuarina. There are mentors from non government organisations that come in every day. There is additional education resources. There is additional psychological resources and case management resources that are in Casuarina. But, of course, all of those things only happen when the kids are up and about, so they are out and they are able to participate in education, participate in recreation and those counselling sessions. 

But in the time that the young people have been at Casuarina, there has been a continuation of the critical incidents, there has been a continuation of the self harm attempts and there has been a continuation of the infrastructure damage and assaults on staff. So, the situation is still very volatile. There are many days when it works very well. The kids get education and they get recreation time out. But there are also days where those things don't go so well and those additional supports are not able to be provided because there is a lockdown. 

MS WRIGHT: And, in other words, lockdown where the young people are in their cell by themselves for up to 23 hours and 50 minutes, on occasion. 

MR RYAN: Yes. I mean, I can't speak to exactly 23 hours and 50 minutes, but lockdown for long, long periods. Or allowed out for a short period, a small number are allowed out for a short period then they go back and then another smaller number come out. But – 

MS WRIGHT: What is the circuit breakers to that situation where the Inspector's reports, including your reports, a Supreme Court judge, the lawyers who seek to look after the interests of these children are saying all that lockdown does is cause harm – further harm, and his Honour Justice Tottle said harm for many years to come. The effect of confining young people in this way is harmful. What is the solution to avoid these excessive repeated lockdowns? Do you have any  

MR RYAN: How long – 

MS WRIGHT: – suggestions? 

MR RYAN: Look, I think the solution is, the starting point has to be a trauma informed operating model of care. We have been talking about that for the last 10 years. That's not something that's going to happen overnight. That's something that has to be thoroughly developed and researched and then staff appropriately trained. I do think they could do more in – particularly in Unit 18, they could do more by way of bringing in Elders and family members and listening to what the young people want. 

You know, in – we have been out there or staff from my office have been out to Unit 18 every week since they have gone out there since July, and we were out there on two or three occasions over the last couple of weeks because we were in Casuarina doing an inspection. And we have never had any issues in talking to the young people. They are particularly challenged young people, but they are still young people, and they will talk to you. They will treat you – they will – interact with you respectfully, quietly. 

But then of my own observation, I've seen them – and they react. There is an obvious reaction when they are instructed to do something by the uniformed staff. So I just think that needs to change. It needs to have a very different approach. And I was there recently and asked two very senior uniformed staff at – responsible for the centre, what had been the most effective reform that they had in place? And without hesitation they both said the mentors. The civilian mentors who came. 

And when I spoke with the mentors, they essentially sit and talk to the kids. They ask them about their life story, ask them about things they like. They help them if they are doing education. They just talk to them and they play table tennis with them. It's that level of interaction. Many of the witnesses before me today have spoken of those same things. 

MS WRIGHT: And when you say "the mentors" is that a specific program, and how is that facilitated? 

MR RYAN: It's a – it's a – I guess it's one of the circuit breaker initiatives that I recommended in my – in the Report 141. They are from two different community organisations or non-government organisations, and they are contracted to come in and provide that service. And it is one on one, one on two mentoring. There are a range of people with – you know, from a variety of background, whether it's social work background or whether they are just lived experience people, but they are – or youth workers or social workers. They are just good with young people. And they make a huge difference. When you are in the unit and you see the young people interacting with them, it's just a normal interaction between an adult and a young person. 

MS WRIGHT: And so in your recommendation to embed an additional welfare-focused workforce, you are referring to mentors. What else were you referring to?

MS WRIGHT: Well, I think social workers, psychologists, welfare workers, experienced youth justice – youth workers. The whole range of things. You know, psychiatrists, psychologists, mental health, all of those – I guess the kind of services you would expect that's not involved in custody, in locking gates, locking doors. All of those welfare supports. It would include education. It would include recreation. It could include a program, for example, with visiting aunties or uncles or respected community people. 

I don't mean, you know, high profile – you know, footballers or personalities, but the term that we use in our office is "mirror models." Just average reasonable people who have made – maybe have even have the same lived experience as the young people who can just sit and talk to them and say, you know, there is a better way. There is hope. You know. You can have hope and have aspirations, and this is how you get them. So, it – that's a long answer to a short question. 

MS WRIGHT: So, just to be clear, to your knowledge, the response to recommendation 2 in Report 141 was to move certain young people perceived as the problematic ones to Unit 18, but not to embed an additional welfare-focused workforce in ISU and Cue Unit? 

MR RYAN: No, I would have to just clarify that, by moving the young people from the ISU at Banksia Hill to Unit 18 was not in response to my report or in response to recommendation 2. By the time we finished our report, our fieldwork for our report, which was – which – Report 141, the situation spiralled even further by way of significant damage that the young people were able to do. They were able to damage the infrastructure of the cells to an extent that they could breach the wall between one cell and the other and then breach the ceiling space between the cell and the roof and breach the wall between the cell and the common area in the unit. 

So, essentially, they had been able to breach the security, for all intents and purposes. The officers had lost control to keep the kids secured in their cells. So, that is a further deterioration or downward spiral that happened in between when we published our report – and our report was published in April but our fieldwork was pretty much done in January. But it takes some time to produce the report. There had been a further deterioration, and that's when they made that decision to move the kids to Unit 18. And when they did that, they brought those additional welfare things that we've been talking about, the psychologist and the mentors and, you know, additional education and those services in. 

MS WRIGHT: And, to your knowledge, are they truly additional or are they shared, to some extent, with Banksia Hill workforce? 

MR RYAN: Definitely some of them are staff that were previously working at Banksia Hill and are now stationed at Unit 18. Whether they are stationed at Unit 18 five days a week or they attend, you know, for three days or whatever, I'm not sure. But there have also been additional resources brought in. But I know from some of the staff that I know and that I'm familiar with and I have seen them recently at Unit 18, they have said to me, "I come here two days a week and I still do three days a week at Banksia to provide those sorts of services." 

MS WRIGHT: Now, your predecessor expressed the view that the one stop shop, that is, Banksia Hill is a failure and he has – he used the word "a failure" in I think it was his June 2017 report called Behaviour Management Practices at Banksia Hill. Do you have a view about whether the use of a single detention centre in Western Australia is appropriated?

MR RYAN: Yes, I do. I wouldn't disagree with my predecessor, Professor Morgan for a minute. I think having one facility – if you were starting from scratch today, I don't think anyone would design one facility for the entire state of Western Australia. You would have multiple facilities that could be broken up or defined by a range of different criteria. It could be geographically. You might have a facility in the Kimberley or in the Pilbara or in the south west. It might be by age. It might be by gender. Or it might be by cohort need. 

So, in other words, you might have a facility for stable, settled sentenced young men and women when they are able to get – improve their education, improve their vocational skills and their employability. You might have the facility that is intensive for young people with cognitive impairment or other disability and that provides an intensive support. So, there's a range of different options. 

But I think having all of the young people, 10 to 17 or 18, males and females, remand and sentence, from all over Western Australia in one place has – hasn't shown to be effective. There is an issue around critical mass. At any – you know, the population of Banksia Hill has been at its highest, 240 odd. Generally at the moment it's sitting in the 110 space, and I can tell you that today the population of Banksia Hill is 118, I think it is. 118. 

87 per cent of those are young men, and 13 per cent are women. 61 per cent are on remand, and 39 per cent are sentenced. So, it is a relatively small cohort, that if you split it up, you might not have a critical mass, but I think it would – it would operate better than one facility. 

MS WRIGHT: But also, if it is a single centre, sufficiently small, with the numbers you have just provided, that a rehabilitation focus ought be achievable. 

MR RYAN: Yes. 

MS WRIGHT: You have commented in your report of – your most recent report, the cost per day of detaining one young person. Are you aware of any cost-benefit analyses of detention on a therapeutic model versus taking a more punitive approach in the long term? 

MR RYAN: I think it would be a lot more expensive. 

MS WRIGHT: More expensive. Are there examples in the adult prison setting of therapeutic models which operate successfully that could be a model for youth detention? 

MR RYAN: There are. Interestingly, 500m from Unit 18 at Casuarina, there is Unit 15 which is what they call the Mallee Unit. And that's a therapeutic community within a maximum security adult prison. It's a drug and alcohol rehabilitation facility or unit that focuses on – operates entirely as a therapeutic community. And we spent some time in there over the last two or three weeks during our Casuarina inspection. And it's early days. It's been going for a year or so, maybe 18 months, but it's producing some quite significant results. 

There is a similar facility, it's an entire facility at Wandoo Drug and Alcohol Rehabilitation Prison for Women, and the whole prison operates as a therapeutic community, and it's a private provider, as in the case of Mallee. A private provider comes in to provide that intensive therapeutic community model. But the cost per prisoner per day – and I can't quote the exact numbers – will be significantly higher than the cost per prisoner for a mainstream prisoner. So, that's the sort of level of intensive support that is showing to be effective, but it is much more expensive. 

MS WRIGHT: And children and young people are at a stage of their life where that sort of approach would make sense. 

MR RYAN: Yes. That's a question I did ask of the people – some of the non – some of the external providers at – when I was at Casuarina. I said, could something like this work for the kids in Unit 18. A therapeutic community model. And the answer was yes and no. Yes, in the sense of that wraparound support, that intensive nature of welfare support to understand what their needs are. But no in the sense that the therapeutic community at Wandoo and in the Mallee unit, the starting point is you have to volunteer to do it. 

You have to be – you have to want to do it and you have to want to address your addiction did. So, if you could have a similar approach in the youth space, I think it would work as effectively, but it may not be exactly the same in the sense of – you know, dealing with addictions, you know, the first step is, you know, you have to admit you have an addiction and you want to do something about it. 

MS WRIGHT: Getting kids to the point where they sign up for it is the difficulty? 

MR RYAN: It would be the difficulty, but I would be very surprised if it actually doesn't turn out to be quite a simple exercise. Because when you sit with the kids and you can get through to them and perhaps suggest to them that they can have a purpose in life, that their life doesn't have to repeat their immediate history and their people's history, I would be surprised if there wouldn't be a – a long queue of young people wanting to have a chance at it – at a better life. 

MS WRIGHT: And the question has to be asked, well, why wouldn't the government try? Given the clear consensus view over many years in the Inspector's reports and in the wider scientific community that this is what is required? 

MR RYAN: I'm not sure I'm the right person to ask that question. 

MS WRIGHT: No. And just to be clear, the operating philosophy which is being urged upon the Department goes back to your predecessor's 2013 report, report 85 in 2013, where Mr Morgan said that the vast bulk of the Department's budget related to adult offenders and that adult custodial concerns tended to attract the highest attention. And he made recommendations that Banksia Hill should be "re-engineered" so as to reflect a clear and consistent philosophy of rehabilitation, and he expanded on that meant. So, it's not new, is it? 

MR RYAN: No, Professor Morgan perhaps may be more eloquent in his expression of that view than I, but, essentially, we are saying the same thing. 

MS WRIGHT: I'm not sure about that but it's a consistent theme through 2013, 2015, 2017, 2018 and then your reports in 2021 and 2022. All essentially saying the same thing. Have you been consulted about the new operating philosophy? 

MR RYAN: We have had two opportunities to be briefed about the work and to provide our thoughts and observations and our experience to the – to the consultancy firm that's been working on the operating model. We are yet to see the final – final product. It's, I think, before the Department Executive or possibly before government. So, I'm not sure what actually the final model will look like. 

As I said previously, you know, there is a fine balance between us being consulted and being part of the development, because I can't be part of the development of a model and then have to go and inspect and be a critique of the model if I have been part of the design of it. 

So, we have been able to provide a contribution. You know, there's a stack of reports on the desk next to me here that we have published which have clearly outlined the evidence base for it. I was grateful to be consulted, because I think what they are doing and the approach as was briefed to us gave me some confidence as to what they were doing and what – and the focus. But I haven't seen the detail of it and, as in many of these things, the devil is in the detail and, more importantly, in the effectiveness of the implementation and resourcing. 

MS WRIGHT: Chair, I do have probably at least 10 minutes more to go. I'm conscious of the time. 

CHAIR: Please continue. 

MS WRIGHT: Mr Ryan, the Royal Commission has heard evidence this week about community based organisations that can support and provide support for detainees and prisoners while they are in custody with regard to their disabilities. What's the capacity for community based organisations to come into – well, first Banksia Hill but also adult prisons to provide a positive impact and to support people with disabilities? That's a very general question, but – 

MR RYAN: It is. Look, I think if there is a will, there's a way. I think if there's a level of engagement – and, you know, it obviously – some of those organisations might be volunteer organisations. Some of it would require contracting from the Department to those organisations. But it does – it does happen to an extent now. It happens in the adult estate and it happens, to an extent, in the juvenile estate. So, so it can happen. It's just the logistics of making it happen. 

But obviously one of the big challenges that Banksia Hill has faced in recent times has been the staff shortages. The absence of custodial staff, both through attrition, through worker's compensation, through daily book-offs. And for all those things to happen you need to have custodial staff on hand to, you know, open and close doors, to escort people, to make sure that things are operating in a safe way and people aren't left unduly exposed to risk. 

So, in other words, for the prison – for prisons or the detention centre to operate effectively on a daily basis you need to have a minimum number of custodial staff present to facilitate all those things. 

MS WRIGHT: In terms of assessment and screening to identify disability on and after reception to detention or custody, what screening or assessment is currently undertaken to identify if a young person has a disability when they enter Banksia Hill or now Unit 18? A cognitive impairment. 

MR RYAN: Okay. So, entry into the – into detention would be through Banksia Hill. So, they don't get – they don't go from the street to Unit 18. They would be received into Banksia Hill. My understanding is that there is a question and answer, a checklist that's undertaken by the custodial officer who is – who is receiving the young person, and that could be from court or from police. And they go – they go through a series of questions. It's like a checklist. I also understand that there is – within certainly within the first 12 hours or so an assessment by a nurse as far as a health assessment. 

Those assessments are primarily around self-disclosure. So, in other words, do you have an impairment, do you have a disability, are you engaged in the NDIA or NDIS, are you receiving those services. So, it relies on a degree of self-disclosure. It will also rely on the custodial records held about the individual, if they have previously been held in detention or in prison and there is a flag or some notes already of a diagnosis or a concern or a – a flag of their disability. 

But my understanding is that they are not diagnostic in nature. So, in the absence of a pre-existing diagnosis or in the absence of a court-ordered report, particularly in the context of young people coming into detention, the court may order a report and may order a psychosocial or a psychological assessment that involves a diagnosis. In the absence of that, the prison system or the detention system, the screening on entry is not diagnostic in nature. 

MS WRIGHT: Your predecessor said that the Department does not know how many people in its care have these issues, and there he was referring to a cognitive impairment or behavioural disorder, because the Department does not routinely assess young people when they are admitted to custody. Is that still the case? 

MR RYAN: I would say so, yes. There was some work done by the Telethon Kids Institute some years ago now. It's quite dated. I think around about 2015, but I could be wrong. Where they did some assessment of the kids in Banksia Hill, and they identified, I think, it was 37 odd per cent had FASD and high 80s per cent had some other form of developmental delay or neurodevelopmental condition. But since that time, there hasn't been a comprehensive assessment. 

I think it would be incredibly valuable for every young person who comes into detention to have that comprehensive diagnostic assessment because it would – it would inform not only their detention, it would inform their release back into the community, and it actually may impact their life going forward because my understanding is that for engagement with the NDIS, you need to have a diagnosis. And in the absence of a diagnosis, that's going to be more challenging 

MS WRIGHT: How can their disability support needs be properly identified without it? 

MR RYAN: Exactly. Well, you would – you would identify the presentations or the manifestations of their underlying disability, and in the absence of a diagnosis, for the uninformed or the ill – or the undertrained, you may well interpret that as wanton defiance or wilfulness in their behaviour, in their behaviour response, which again reverts right back to the point we started on and the trauma-informed model care. A fundamental understanding. If you are going to understand trauma and the drivers of it, you need to understand the underlying disability that the particular individual may have. 

MS WRIGHT: So are you – are you critical of the current screening processes for identifying disability? At least in the youth justice system? 

MR RYAN: I haven't publicly addressed that in a report. In an honest answer to your question, I think it should be diagnostic. I think if you are – it shouldn't just try and identify pre-existing conditions or conditions that you have known about. The screening too has a very strong focus on at-risk identification. So, is the person coming in, whether it be a young person into detention or an adult into Corrections, is this person a self-harm risk? And if they are, then that needs to be managed. And that needs to be – they need to be placed in a – in an area where they can be observed or whatever. 

MS WRIGHT: Chair, I'm advised that if we could have a short adjournment – now, whether it's a short adjournment or a more lengthy adjournment – for an issue to be raised. 

CHAIR: For an issue to be raised?

MS WRIGHT: Yes, yes. 

CHAIR: Does that mean that a representative wants to raise an issue?

MS WRIGHT: I don't think it's a representative that wants to raise an issue, but it's my Counsel Assisting team that would like to raise an issue. 

CHAIR: Alright. Well, we will take a short adjournment. It's now 12.40 – just after 12.40 Perth time, so we will resume at 12.50 Perth time. Unless we have to wait longer?

MS WRIGHT: I don't believe it will be longer than that. 

CHAIR: Thank you. 

<ADJOURNED 12.42 PM

<RESUMED 12.51 PM 

CHAIR: Yes, I'm sorry for that interruption, Mr Ryan, but we are now back in session. Yes, Ms Wright. 

MS WRIGHT: Chair, having had that short adjournment I have no further questions for the Inspector. 

CHAIR: Alright. Thank you very much. I will ask Commissioner Mason whether she has any questions she would like to put to Mr Ryan. 

COMMISSIONER MASON: Thank you, Chair. Mr Ryan, were you able to hear the evidence given by Megan Krakouer yesterday or the day before yesterday? 

MR RYAN: I was able to hear some of her evidence but not all of it. 

COMMISSIONER MASON: Yes. She mentioned about Independent Visitors and numbers of Aboriginal people working in those roles in prisons, and she was saying that much more that needed to be done there in bringing more Aboriginal Visitors into prisons, detention. Do you have the same view? And if that's the case, what strategies are being taken to increase the number? 

MR RYAN: I don't disagree with what Ms Krakouer said in her evidence. That is an area of focus that we have in our inspections, the number of Aboriginal staff, and we will regularly or we will often make recommendations about prisons and detention centre increasing the number of Aboriginal staff, particularly in areas like Aboriginal health workers. 

As far as the Independent Visitors, we do have a couple of – our Independent Visitors, our independent volunteers who are Aboriginal. We have got a couple of others who from very familiar with – in the Pilbara with Aboriginal families and culture. We work hard to try and recruit Aboriginal people to our Independent Visitor Service, but they are all volunteers and we don't have as many as we would like, but we continue to try and encourage that. 

And the kinds of things we do is through our engagement with community. For example, when I'm in the Pilbara visiting Roeburne Prison I always go on Ngaarda Media, the local Aboriginal radio station. I always meet with them and we meet with community leaders to try and encourage community volunteers to step forward as to be part of our Independent Visitor Service. But I take this opportunity to put a plug out, if there's any Aboriginal people in Western Australia who want to be part of that process, they just need to reach out and contact us. 

COMMISSIONER MASON: It is a difficult task because in the document around the revised Code of Inspection Standards, it says: 

"The number of Aboriginal staff is proportionate to the number of Aboriginal prisoners."

That's a tall order. 

MR RYAN: They are aspirational standards and I think it's a good aspiration. 

COMMISSIONER MASON: Yes. The other question I had was about the – to do with staff, particularly Youth Custodial Officers around the management for compassion fatigue, burn out and vicarious trauma. And just if you could give briefly your insights into that. What strikes me from the evidence you have given today and others this week is that, we are talking about a trauma-informed workplace because of the presence of trauma being experienced. In fact, you know, young people, children leaving detention and probably being at high levels of trauma as a result of their time in detention. But I was just interested in the staff, because it seems to me there's a lot of self-interest in wanting to reduce vicarious trauma and burn out and compassion fatigue for staff works in these closed institutions. 

MR RYAN: Yes, I would agree with you entirely. The attrition rate and the rates of worker's compensation among juvenile youth custodial officers is extraordinarily high and it is one of the major contributing factors to staff shortages. The incidents and the history of Banksia Hill as documented throughout our reports, it is all a history of, you know, one step forward, two steps back, of periods of stability and then long periods of difficulty with critical incidents and, you know, self harm attempts, assaults, infrastructure damage. 

That creates enormous amounts of stress and trauma for the workforce. I mean, and I'm not wanting to make light of how difficult their job is, and as you said, they suffer – they are a traumatised workforce. And that definitely needs to be addressed, if for no other reason other than to retain good people, good-hearted people who genuinely want to do a – have a welfare focus and make a difference. So, it is – it is definitely an issue, and it is definitely a challenge. 

Some work we did some years ago now, I think in 2017, about recruitment and retention of Aboriginal staff in the Department generally, the Department does – the Department of Justice, that is, Corrections does do reasonably well in recruiting Aboriginal staff. It is certainly higher than the rate in the public sector. It ought to be much higher. But back then, the – one of the big difficulties was retention. Particularly retention of good Aboriginal staff. That's an issue and certainly in juvenile detention, that's an issue that needs attention. 

COMMISSIONER MASON: Thank you very much. And thank you for your evidence today. 

MR RYAN: It's a pleasure. 

CHAIR: Thank you, Commissioner Mason. I will ask Commissioner McEwin in Perth if he has any questions for you? 

COMMISSIONER McEWIN: Thank you, Chair. Thank you, Mr Ryan, for your evidence. Just following on from Commissioner Mason's questions around workforce, and you have described issues around retention, the high number of worker's compensation, lack of training for custodial staff. What does that suggest to you or what inferences, if any, could you draw from that about the culture and leadership of the detention centres we are talking about? 

MR RYAN: I think part of – part of the challenge is that there is only one place where they can work. So, if you are a Youth Custodial Officer, you work in Banksia Hill, and if – if the facility is constantly in crisis, then there is no respite. If you are a prison officer you can work in facilities all around the state. You can work in maximum security facilities, minimum security, prison farms. So, you have that ability for your career to be different. If you are a Youth Custodial Officer you don't. So, effectively you are in the trenches every day you go to work and that does have a huge impact. 

As far as leadership, there have been 10 different superintendents in Banksia Hill over the past 10 years. So, that's one per year. Now, every one of those has been capable, have been, you know, good people with good intentions but the things haven't worked out. And I think the underlying issue is the things we have been talking about today: A clear, consistent philosophy, everybody knows what they are doing, everybody is on the same page and there is that level of consistency in approach. 

And it ought not to make any difference whether you're sitting in the chair as superintendent or I'm sitting in the chair as superintendent or someone else. That consistent model gets applied. 

COMMISSIONER McEWIN: Thank you. Thank you, Chair. 

CHAIR: Thank you, Commissioner McEwin. You will remember, I think, that there was some evidence given the other day about the decision of Justice Tottle in the Supreme Court, and reference has been made to that today. That case, looking at – looking at the judgment, as I am right now, involved an applicant who was detained on remand at Banksia Hill between 20 January and 19 July 2022. While he was detained there, he was locked in his cell for periods of more than 20 hours and on some days for between 23 and 24 hours. He was 14 years old when he went into the centre at that time, and he turned 15 in March. 

He applied for a declaration that locking him in his cell on the day specified was unlawful. He was not locked in the cell for any disciplinary reasons, according to the judgment. Justice Tottle found that, on my count, on 27 days during that period, this person, this young man of 15 – 14 and 15 – had been detained unlawfully. 27 separate days. And his Honour made a declaration to that effect, that is, the court declares that what happened was unlawful. 

There was apparently no other relief sought, for example, damages and so forth, so that was the limit of the judgment. My question to you is what's changed, if anything – and I appreciate that the judgment was delivered only on 25 August, but, to your knowledge, what has changed since? 

MR RYAN: To my knowledge nothing has changed. 

CHAIR: No instructions have been given in consequence of the judgment? 

MR RYAN: I'm not aware of any. There could well have been, but I am not aware of any change in the approach. 

CHAIR: Thank you. You have referred and the questions from Commissioners Mason and McEwin also referred to the difficulties that staff encounter, and from your description, one can readily see that this is some kind of vicious cycle. Now, that just as the detainee’s experience abuse and violence and so forth, it must be, for many of the workers there, a pretty awful experience to have to work there. In your report of 2022 on page 3, you record that since January 2021 – and I think you were reporting up to September 2021, perhaps November; I'm not sure from memory – 49 staff members departed Banksia Hill. What was the total workforce, do you know, during that period? 

MR RYAN: Off the top of my head, it's in – of custodial staff, it would be maybe 200. 

CHAIR: Does that imply an attrition rate of something like 25 per cent? 

MR RYAN: Yes. It's significant attrition rate. There – they wouldn't be able to – without doing additional schools or you know, training schools, they wouldn't be able to keep up with the attrition. Which is what  

CHAIR: Yes, no institution can work with a 25 per cent attrition rate, particularly an institution that, as you said, requires consistency of approach and consistency in dealing with the detainees in order to ensure their welfare and, for that matter, the welfare of staff? 

MR RYAN: Yes, that's correct. It's – it's had a huge impact. And in addition to that, the very, very high rates of worker's compensation as well. So, that adds to the shortages. In our inspection work we often hear about reductions in the daily activities or daily regime due to staff shortages and we often differentiate between the staff shortages by virtue of vacancies – so, unfilled positions – or staff shortages by virtue of absence. And it's a combination of both here. 

Vacancies by way of the attrition rate and absences by way of worker's compensation or you know, people – staff just not – just booking off sick on the particular day in question. All of it has a compounding effect on the operation of a facility. 

CHAIR: These are not issues that need – or should be determined by questions of cost alone, but having said that, the costs would be curtailed if there weren't these kinds of problems of staff turnover, worker's compensation claims and indeed the destruction of property that goes along with the behaviours about which we have heard so much. So, that there are benefits, in a cost sense, in a strict financial cost sense, that would be obtained from doing some of the things that you've suggested in your reports. Would you agree with that? 

MR RYAN: Yes, absolutely. 

CHAIR: In your report of 2022, on page 11, there's this passage under the heading The ISU – that's the Intensive Support Unit:

"...is progressively becoming a more volatile space."

And I'm quoting: 

"The number of incidents occurring in the ISU progressively increased throughout 2021, escalating in October and November. Of the 3,339 incidents recorded at Banksia Hill in 2021, 41 per cent occurred in the ISU. 49 per cent of the 254 critical incidents recorded were also located in the ISU. In October 2021..."

That's one month: 

"...23 of the 25 incidents involving a threat to staff or an actual staff assault were within the ISU. And threats of self harm, actual incidents of self harm and suicide attempts within the ISU also increased to its highest levels."

Do you have a view as to the explanation or explanations for this progressive increase of – in the incidents that are recorded in that paragraph? 

MR RYAN: There are many facets to answer that question. The first will be the infrastructure in the ISU is – as you will have seen the pictures and you will have heard evidence from others, it is stark, it's not therapeutic, it's – it is, you know – it's appalling to be honest. There aren't facilities for any sort of welfare or any sort of therapeutic or calming type environment. That's the first thing. 

The second thing is that the young people are often – as the judgment points out and as our report identified – they are often locked in their cells for long periods, isolated without any sort of human interaction or stimulus. And I'm not being critical of the staff in saying that. I'm not wanting to demonise the Youth Custodial Officers, but that's the reality. And then you overlay on top of that the reasons why the young people are moved to the ISU in the first place is a critical incident or a misbehaviour or a lack of ability to cope. 

So, all of those things result in the ISU being a melting pot. And that's the reason why, when we did our inspection, the report you are talking about, we focused on the ISU because that's basically where all of the trouble ends up. And as our report identified, it is a spiral. You have used that terminology earlier, Chair. It is a spiral. It's, you know, and from this point it got worse. It got a lot worse. From – when the time we talk about in this report through to July when they made the decision to move a group of young people to Unit 18 at Casuarina. 

CHAIR: Yes, well, together with the paragraph I've just read out on page 8 of your report, you record that there were 24 attempted suicides at Banksia Hill between January and November 2021. Most occurred in September, four; October, 15 attempts of suicide; and three in November. And 83 per cent of the total occurred in the ISU. I'm not sure there is any other word that can be used to describe that as shocking. 

MR RYAN: Yes, I would agree with you. 

CHAIR: And when we looking at figure 3 on page 9, as I read it – and please correct me if I am wrong – that in October and November, there were around – possibly in excess, but around 50 cases of self harm threats and the same number of self harm actual. Have I read that correctly? 

MR RYAN: That is correct. That's what that graph represents. 

CHAIR: Yes. Thank you. 

COMMISSIONER McEWIN: Chair, do you mind if I just interrupt quickly and ask one more question. 

CHAIR: Yes, go ahead. 

COMMISSIONER McEWIN: Thank you. Mr Ryan, going back to that – your information about the high rate of worker's compensation, are you aware of what any of the themes from those – what types of worker's compensation? Burn out or psychological distress. Anything you can comment on? 

MR RYAN: It is anecdotal, so I have to preface that. But my understanding is the large majority are stress related conditions. There will be an element of the slips and falls, particularly from injuries arising from managing critical incidents, restraints, and those sorts of things, but there is a high proportion about that are psycho social, that kind of thing. The Department will be in a much better position to answer that question in detail. 

COMMISSIONER McEWIN: Thank you. 

CHAIR: Mr Ryan, again, thank you very much for the written statement that you have provided and also for the reports that we have that have been or will be introduced into evidence. This is very important material for the work of the Royal Commission and, indeed, for Western Australia because this – you are, after all, an officer who is reporting to Western Australian authorities about what is going on in that state and the work that you do is extremely important, and so we thank you for the evidence and we thank you for the work that you are doing. Thank you very much. 

MR RYAN: Thank you. 

<THE WITNESS WITHDREW

CHAIR: Ms Wright, does that conclude the proceedings for today?

MS WRIGHT: It does, your Honour. 

CHAIR: Alright. Thank you very much. In a moment, we will adjourn. Bearing in mind that this is the fourth day of the hearing and there will be a fifth day on 6 October, as we have previously mentioned, I do want to thank, however, even though we haven't come to the end of the hearing as such – I do want to thank the witnesses who have given evidence this week, in one form or another. Some, of course, have given evidence in person, some have given evidence through pre recorded interviews, some through statements. 

But I do want to thank Nathan for the evidence that he gave through his statement; Tyron Justin, who gave evidence in a pre record; Ms Lyons, who gave oral evidence via the link from Brisbane; and Alen, who gave pre recorded evidence. We heard also from Jasmin, who gave oral evidence in person in Perth, Ms Cheryl Ellis, who gave oral evidence also in person from Perth. The Mother of JC gave evidence via a statement about the experience of her daughter and her death at the hands of police officers. Terry gave oral evidence in person in Perth and submitted a joint written statement with his partner, Kara. 

And we heard from a number of experts and advocates. We heard from Ms Tina Powney and Trevor Barker from Gallawah, who gave oral evidence in person in Perth. Ms Jennifer Cullen, the Chief Executive officer of SYNAPSE, who gave oral evidence by video link from Brisbane. Ms Jody Barney, who has given evidence previously at the Royal Commission and gave further evidence at this hearing. She, of course, is the founder of Deaf Indigenous Community Consultancy Proprietary Limited. Ms Megan Krakouer from the National Suicide Prevention & Trauma Recovery Project, who gave oral evidence in person in Perth. 

We had the panel discussion yesterday with Ms Kriti Sharma, the Senior Disability Rights Researcher at Human Rights Watch; Ms Debbie Kilroy, the Chief Executive Officer of Sisters Inside; and Mr George Newhouse, the Director and Chief Executive Officer of the National Justice Project. 

We heard this morning from Ms Megan Donahoe, from the North Australian Aboriginal Justice Agency, NAAJA. And she gave oral evidence via video link from Darwin. We had also today the evidence from Mr Peter Collins, Ms Alice Barter and Ms Sasha Greenoff from the Aboriginal Legal Service of Western Australia. And we have had a written statement – sorry, I will withdraw that. And we have, of course, heard just now from Mr Eamon Ryan, the Inspector of Custodial Services, who is the first of governmental institutional witnesses, and we will hear some more governmental witnesses when we resume on 6 October. 

I also want to record the appreciation of the Commissioners for everybody who has been responsible for organising this hearing. An immense amount of work has been done to prepare for it. A lot of that work has been done in recent times, and it is appropriate to express our profound appreciation for all those who have been involved in the process. That includes, of course, Counsel Assisting the Royal Commission, Mr Griffin SC, Ms Wright SC and Ms McMahon, but also the Office of Solicitor Assisting, and particularly Ms Kate Dobbie and her team. The Counselling and Support Branch or the Unit within the Royal Commission that, as always, does outstanding work. 

An enormous amount of work has to be done by way of logistics, and, of course, almost always, we have had some issue to deal with as a hearing is either imminent or is proceeding, whether it involves the advent of a pandemic or an earthquake or whatever else has struck us. On this occasion we had to make some changed arrangements because of the public holiday that was called at short notice. But, as always, that was handled with aplomb and efficiency. 

I want to express our appreciation to Law in Order for the work that they have done. As I remarked earlier today, we have had occasions where witnesses and counsel and Commissioners have been in four separate – four separate locations, and it has all gone extremely smoothly. No doubt, that is partly attributable to the very long practice that Law in Order has had in doing these things effectively over a period of three years or so, but it's worked very well. 

And I also want to express our appreciation, of course, to the interpreters who, as usual, did their outstanding job of providing Auslan interpretation, both for witnesses and for those who are following the proceedings. And it's appropriate especially to recognise that because of this week's recognition of the importance of Auslan interpretation, which Commissioner McEwin acknowledged at the outset of the hearing. 

So, thank you to everybody who have contributed to this week. As I've said, it's not the final day of the hearing, and we shall hear further evidence on 6 July. We will adjourn until – at 6 July. Did I say July? 6 October. And so although we – I don't think there is any other hearing between now and then, is there, so we will adjourn until 6 October. Thank you. 

<ADJOURNED 1.20 PM TO THURSDAY, 6 OCTOBER 2022