Public hearing 16: First Nations children, Virtual - Day 5

CHAIR:  Good morning to everyone who is following these proceedings at Public Hearing 16.  I commence by inviting Commissioner Mason to make the Acknowledgement of Country.

COMMISSIONER MASON:  Thank you, Chair.

We acknowledge the First Nations people as the original inhabitants of the lands on which this hearing is sitting.

Nganana tjukarurungku kalkuni Anangu kuwaripa tjara nyinantja tjuta, ngura nyangangka.

We recognise Meeanjin, Brisbane.

Nganana ngurkantananyi ngura Meeanjin nga Brisbane ta.

We recognise the country north and south of the Brisbane River as the home of both the Turrbal and Jagera nations.

Nganana ngurkantananyi karu panya Brisbane River nya alintjara munu ulparira Anangu nguraritja tjuta nyinantja munu kuwari nyinanyi Turrbul nga munu Jagera nya.

We pay respect to the Gadigal people of the Eora Nation.  Their land is where the City of Sydney is now located.

We also pay respect to the Wurundjeri people of the Kulin Nation, where the City of Melbourne is now located.

We pay deep respects to all Elders past, present and future and especially Elders, parents, young people and children with disability.

I'd now like to read the First Nations content warning.

This hearing will include evidence that may bring about different responses for people.  It will include accounts of violence, abuse, neglect and exploitation of First Nations children with disability, and their experiences with child protection systems across Australia.  First Nations viewers, please note that the evidence may describe trauma, including removal, and if the evidence raises concerns for you, please contact the National Counselling and Referral Service on 1800 421 468.  You can also contact Lifeline on 13 11 14, Beyond Blue on 1300 224 636, or your local Aboriginal Medical Services for social and emotional wellbeing support.  Thank you.

CHAIR:  Thank you very much, Commissioner Mason.  Yes, Mr Crowley.

MR CROWLEY:  Thank you, Chair.  Commissioners, this morning our first witness will be Dr Kelly Thompson, the Acting Director at the Kath French Secure Care  
Centre in Western Australia.  Dr Thompson will provide evidence in relation to her role supervising the Kath French Centre and also, research in relation to Secure Care practice and outcomes and models.

Commissioners, a copy of the statement of Dr Thompson is in Tender Bundle Part C at Tab 51.  I tender that statement and ask it be marked 16.23 as an exhibit, please.

CHAIR:  Yes, that can be done, thank you.

EXHIBIT #16.23   STATEMENT OF DR KELLY MARIE THOMPSON DATED 13 SEPTEMBER 2021

MR CROWLEY:  There are two further documents additional to the statement of Dr Thompson which are also in Tender Bundle Part C.  Those are at Tabs 52 and 53, and I ask they also be admitted and be marked as Exhibit 16.23.1 and 16.23.2, please.

CHAIR:  Yes, those additional two documents can be admitted into evidence, with the markings you have indicated, Mr Crowley.

EXHIBITS #16.23.1 TO #16.23.2   ANNEXURES TO STATEMENT OF DR KELLY MARIE THOMPSON

MR CROWLEY:  Thank you, Chair.

CHAIR:  Should now Dr Thompson be affirmed?

MR CROWLEY:  Yes, thank you, Chair.

CHAIR:  Dr Thompson, thank you very much for coming to the Royal Commission to give evidence.  We appreciate your attendance and also the written statements that you have provided.  If you would be good enough to follow the instructions of my associate, he will administer the affirmation to you.

DR KELLY MARIE THOMPSON, AFFIRMED

CHAIR:  Thank you, Dr Thompson.  Now Mr Crowley will ask you some questions.

I should indicate, before we start, the location of everyone, or nearly everyone participating in this hearing.  Commissioner Galbally is participating from Melbourne and Commissioner Mason is in our Brisbane hearing room.  I am in the Sydney hearing room of the Royal Commission.  Mr Crowley is in the same  
Brisbane hearing room as Commissioner Mason.

EXAMINATION IN CHIEF BY MR CROWLEY

MR CROWLEY:  Thank you, Chair.

Dr Thompson, are you able to hear me okay?

DR THOMPSON:  Yes, I can.

MR CROWLEY:  I just wanted to start off, please, if you could just confirm for us your current position, is that Acting Director at Kath French Secure Care Centre?

DR THOMPSON:  That's my current position, yes.

MR CROWLEY:  You are employed there in that role by the Department of Communities Western Australia?

DR THOMPSON:  I am employed currently in that role, although my substantive position is as the Senior Psychologist in the Kath French Secure Care Centre, yes.

MR CROWLEY:  Yes, but Department of Communities is your employer?

DR THOMPSON:  That's correct.

MR CROWLEY:  As for your substantive role, Senior Clinical Psychologist, you have, I take it, for a number of years been practicing within the Department as a psychologist?

DR THOMPSON:  That's correct.  I've been at Secure Care for approximately five years, and I was working in the Department for another two years in a psychology role.

MR CROWLEY:  You have a number of qualifications, if you could just list those for us, please?

DR THOMPSON:  I currently hold a doctorate in Clinical Psychology from the University of Western Australia, and that is the highest qualification that I hold.  I also have an honours degree in Bachelor of Science.

MR CROWLEY:  Amongst other things, Dr Thompson, in 2018 you were awarded a Churchill Fellowship, which enabled you to conduct some international research in respect of the field of Secure Care.

DR THOMPSON:  Yes, that's correct.
 

MR CROWLEY:  Following that research, you published a report titled "Creating a Secure Foundation for Children at Risk" in late 2019?

DR THOMPSON:  Yes, that's correct.

MR CROWLEY:  Do you have a copy of the report there with you?

DR THOMPSON:  I do have a copy of the report.

MR CROWLEY:  I will perhaps at stages bring it up on the screen, Dr Thompson, so we can all follow your evidence but Commissioners that report which will in due course be tendered is at Tab 100 of the annexure, of the Tender Bundle C.

Dr Thompson, can I ask you please if you could perhaps go to the report and I'll see if we can bring it up on the screen.  Can we bring up that document, please, it's DRC.9999.0062.0001.  I think we have it up now on the screen, I can't tell.  No.  Can we just go please     I'll give the reference again.

CHAIR:  It's DRC.9999.0062.0001.

MR CROWLEY:  Yes, that's right, Chair.

CHAIR:  Your report is proving elusive, Dr Thompson.

MR CROWLEY:  Dr Thompson, could we start please, if we could just go to page 36 of the report using the numbering at the bottom of the page.  I'm interested to ask you about first of all the model and the purpose of models of Secure Care.  Now, we heard yesterday from Ms Kalders who, I think, described Kath French Centre as, in part, a therapeutic care service, but she gave some evidence to draw a distinction between what we might commonly understand as therapy on the one hand as opposed to a therapeutic care service.  Could I just ask you if you could tell us what the difference is between those in terms of what happens at the Kath French facility?

DR THOMPSON:  May I first acknowledge the traditional inhabitants of the lands on which we're meeting from here today, the land on which I live and work, which is the Whadjuk Nyungar people, and pay my respects to their Elders and all those present for the contributions they make to the life of our country.

With regards to your question as the distinction between therapy and therapeutic care, I think that it's important to note that therapeutic care is something that can be a part of any model of Secure Care.  It's about being trauma informed, it's about providing an individualised response to a child's needs and that the entire centre is established in a way that responds to those needs in line with best practice.  When we're talking about therapy, we're talking about something I think that most people would more traditionally see as sitting in a psychologist's office with one person conducting something that is between those two people or perhaps a group therapy.   
It's a much more formal space, and I think that that's what sometimes people can assume is happening when we're talking about therapeutic care, which would be a misunderstanding.  Therapeutic care is about a 24/7 approach in everything that we do in response to a child and their needs.

MR CROWLEY:  Yes, thank you Dr Thompson.  If we just go then to page 36 of your report, in this section of the report you've referred to and examined different purposes for Secure Care.  So, I take it what we're looking at here in your report is what the rationale or what the intended goal is for different types of Secure Care settings?

DR THOMPSON:  Yes.  So throughout my research and the centres that I visited, it appeared that there were four primary categories that we could class each service into in relation to purpose.  So the first was the justice service, and so there were a number of places that I visited where children were being held in a Secure Care environment as opposed to being held in a traditional detention centre, and that the purpose was to provide rehabilitation and reintegration in response to children who presented with criminal behaviours.  The other three purposes that were identified was a treatment service, so there were a very small number of services where they were providing that more traditional psychotherapy or therapy approach in those instances.  There was the other two services.  One was assessment, so where children were entering a Secure Care environment for the purposes of obtaining the comprehensive multidisciplinary assessment with the hope then that decisions could be made as to whether that child would go onto another Secure Care environment or if they could be back in the community following that period of assessment.

And the last and most common purpose that was outlined was intervention, and so this is something that is slightly more difficult to define.  Intervention meaning essentially that we are taking action to become involved in a situation that has become risky for that child, with the purposes of containing that risk.  And so this is the most common category for Secure Care services to fall under, and it would also be a category in which the Kath French Secure Care Centre would fall under.

MR CROWLEY:  If we look at your report page 36 under the heading of "Intervention", you've made that point that that is     the Kath French Secure Care Centre is within that type of purpose category of intervention.  You've cited from the policy from the Department of Communities' policy about what Kath French's purpose actually is, to identify it as being that type of service.

If we go over to page 37, in the second paragraph there, the one that commences with:

Given that intervention and its outcomes is a vaguer concept, it begs the question of 'How long does a therapeutic intervention take?'

And you go on to say:

 
Secure Care can be considered a time limited 'circuit breaker' to stabilise behaviour .....

And then the paragraph continues.  It's correct, isn't it, that Kath French operates in that way, in short, as a circuit breaker?

DR THOMPSON:  Yes, that's correct, that's what our policy outlines as being its current purpose.

MR CROWLEY:  And in terms of stabilising, do we understand that to mean that when the child who's coming into the Centre meets the relevant criteria for admission, the primary goal is to stabilise, to stop whatever behaviours are presenting what led to them coming into the Centre?

DR THOMPSON:  That's correct.  So the aim is to intervene, providing a circuit breaker to stop the behaviour of risk that we've been seeing in the community.

CHAIR:  Mr Crowley, can I just clarify, just to make sure we're all on common ground?

MR CROWLEY:  Yes.

CHAIR:  You're asking Dr Thompson about the position now at the centre, although her report is written in 2018, so I just want to make sure that Dr Thompson understands that you're asking her about the position as of today, rather than as of 2018.

MR CROWLEY:  Yes, thank you, Chair.

You follow that, Dr Thompson?

DR THOMPSON:  Yes, thank you.

MR CROWLEY:  I take it, though, in this section there's not a difference between what was the position at the time of the report compared to today, in terms of the policy for Centre, and it being in that circuit breaker intervention style purpose?

DR THOMPSON:  Yes, that's correct, it remains the same.

MR CROWLEY:  Now, given that under the legislation there's an initial 21 day period for admission to the centre, the question that you've raised here at page 37 about how long does a therapeutic intervention take, what's to be done at the centre has to be that type of priority stabilising of the behaviour within that 3 week period, unless there's some exceptional circumstance that an extension might then extend that to 42.  But that's the timeframe that you're looking at within the centre when children come in?

DR T 
HOMPSON:  Yes, that's the current legislation and policy around our service.

MR CROWLEY:  From that rationale and the purpose and that time period, if we go back to the question about the distinction between therapy in that normal sense and the therapeutic care service, it isn't the case that it's intended at Kath French that children coming in for that circuit breaker and period of time to stabilise, that there's going to be a focus on providing them with treatment or therapy in those ways that you've described.

DR THOMPSON:  That's correct, yes, the traditional definition around therapy and treatment is not what's provided.  We provide a therapeutic care environment.

MR CROWLEY:  Is the idea then that when the behaviour has stabilised     and let's say it happens in the 3 week period     then the child would then be able to return back to another setting, not a Secure Care setting?

DR THOMPSON:  Yes.  So the child will then return to whatever care arrangement is in place to support them going forward.

MR CROWLEY:  Which could be going to a residential care setting, or it could be going to a foster care setting, or some other environment?

DR THOMPSON:  Yes.

MR CROWLEY:  What's then critical is, I take it once the child has come back from the Centre back into one of those other settings, that there needs to be a continuity of supports and care to meet whatever the needs were that may have led to the initial admission into Kath French?

DR THOMPSON:  That's right.  The aim would be to ensure that those children have the supports they need in the communities so they can be safe upon their exit from Secure Care.

MR CROWLEY:  And within Kath French, when in that 21 day period or 42     let's just say 21     in that period during the circuit breaker time, is there assessment that's carried out to determine the causes of the behaviour or the dysregulation of behaviour that led to the child coming into the facility?

DR THOMPSON:  This is where it comes down to the definition of assessment and what people are hoping to achieve in that space.  In regards to what happens currently at the Kath French Centre, we have predominantly a focus on observational assessment, so our staff are trained around understanding trauma and we also have the oversight of a senior clinical psychologist, and given that we have 24/7 care of these children, it provides with a unique insight into what might be going on for them and what might be underlying some of those pain based behaviours that we see that lead to them being unsafe in the community.

 
And so as a result of their time with us, they will also have input from an education officer, who might be able to speak to some of the challenges or strengths that they have in relation to their education skills, and we also have an assessment done by our medical team, and they are able to highlight any areas of concern in relation to physical health, and also if there's any other standout concerns in that area, and we compile all of that information into a comprehensive discharge summary with recommendations going forward for the District as to what that child might need, and a lot of that will also speak to the day to day care of that child in terms of how carers and staff might best respond to be able to support that child in the community.

MR CROWLEY:  Once those things are done, just following through to then the child coming back into community, whichever setting it might be, all the while is it the case that in conjunction with what's happening at Kath French, there is still a case worker or a case manager within the child protection unit that is responsible for the overall care and care plan of the child?

DR THOMPSON:  Yes, so the child's case manager who is usually the person who has done the referral to Secure Care remains the case manager and guardian of that child throughout the process.  Secure Care doesn't take over that case management role, and so we're able to continue to collaborate with that case manager.  And for children who do need assessment in the more formal sense of the term     so whether that be a neurodevelopmental assessment or a psychiatric assessment     then the Centre works with that case manager to identify an external practitioner who can come into the Centre during the child's stay and conduct those assessments as required.

MR CROWLEY:  On the transition out from the Centre, is it the case manager then who is responsible for following up and ensuring that the relevant supports or services that may be needed for a child are put into place?

DR THOMPSON:  Whilst we do rely on the case manager being as the primary guardian someone who holds responsibility over those actions, in terms of the recommendations that are made, these are often discussed in a child's planning meeting, where the broader care team may be involved.  So that may include other members of the Department, it may include carers or residential care staff who may also take on some responsibility in how we support that transition in the child's needs when they leave Secure Care.  But the sole responsibility will lie with the guardian in relation to implementation of some of those recommendations.

MR CROWLEY:  Now, you spoke a moment ago about the difference in how one considers the word "assessment".  As with many things in your field and in this area, the terminology may mean different things in different contexts.  But here when you're talking about assessment, you mentioned about the process of observational assessment by staff.  Looking at page 37 at the bottom of the page you'll see that in the next paragraph down you refer to the Welltree Model, and then going to the end of that paragraph on the first column, you've referred to:

 
..... broader treatment and support being seen as the responsibility of other services in adjunct to Secure Care and including post secure care treatment in the community.

So you're talking there about the follow up and the transition of whatever service support happens outside of Kath French; that's right?

DR THOMPSON:  Yes, so in that paragraph I'm identifying the fact that some children may need individual therapy, they may need further assessment or input from perhaps a health service, and so it's also important to acknowledge that some of the recommendations and the care that the child may need may lie with other agencies or services in the community.

MR CROWLEY:  In terms of what then might be seen as what happens in Kath French to address the behaviours, if we read on in the next column, the top of the next column on page 37 you've written about:

.....  stability is seen to have been achieved once the child can understand and demonstrate the importance of their health and personal safety.....

Now, elsewhere, we've seen reference made to psychoeducation as a concept.  Is that what we're talking about here; that one of the purposes is to enable the child to understand what their behaviour is and what may be a trigger for their behaviour?

DR THOMPSON:  So there's a number of things that will contribute to a child being able to understand what's going on for them, and how they can be safe and understand some of their trauma.  Part of that is done through psychoeducation, and that's the provision of various activities and discussions with our staff and our education officer, which have a focus on understanding safety and emotional regulation.  So we do have work that occurs in that space.  However, a lot of work is also done simply through the interactions of our day to day care staff.  They provide therapeutic discussions which aim to help a child explore what's going on for them and also provide opportunities where the staff can observe and provide feedback to the child so that when they experience emotional dysregulation whilst they're in our service, we can respond, we can unpack that with them, and we can help them identify ways that they can regulate.  So that's done both through psychoeducation, and through the relationship that they have with staff and the engagement that occurs in that space.

Arguably, there are also other people in a child's care team who would be having these conversations and depending on the child, they may also have other clinicians involved in their care who would also feed into their learning in that space.

MR CROWLEY:  As we go down that paragraph at the bottom, the bottom sentence you've written:

As such, once a child has achieved basic levels of understanding and ability in  
the areas of safety and health, they would be seen as ready to be released from Secure Care.

So that level of basic understanding and ability, do we take it that that's the primary goal in the stabilising of the behaviours and then working to the understanding that's what's hoped to be achieved in the 21 days?

DR THOMPSON:  That's what we're hoping to achieve in that period and this section of the report doesn't just speak to the Kath French Secure Care Centre, it does talk to all services captured under intervention, and that's where the reference comes to the Welltree Model, which at the time of writing this report had not yet been implemented at Secure Care.  In relation to stability, yes, we are talking about in this space how to make sure that a child can understand their safety and health, and that is what we're aiming to achieve in a stabilising phase, yes.

CHAIR:  Where does the Welltree Model come from?

DR THOMPSON:  The Welltree Model is established by an individual from Scotland, although the model itself or the framework is being utilised in a number of Irish Secure Care services and a couple of the Scottish Secure Care services.

CHAIR:  I thought we were told yesterday     I may not be remembering accurately     that it had something to do with Cornell University; is that right?

DR THOMPSON:  The reference to Cornell University is reference to the Therapeutic Crisis Intervention model, which is separate to this, and it's the model in which our staff are trained in order to provide co regulation and support to our children.

CHAIR:  I see, thank you.

MR CROWLEY:  I'll take up some more with you shortly, Dr Thompson, about the Welltree Model, but just to finish off this section, given that goal that we've just discussed about what the primary purpose of stabilising and understanding the behaviours is, does that mean that what may be driving or causing the root cause of the behaviours, in terms of a particular behavioural issue, a disability, a psychosocial disability, those things are not addressed as such in Kath French; that would need to happen outside or through other service providers and professionals?

DR THOMPSON:  I think that it's not a simple yes no answer to that question in the sense that psychoeducation and therapeutic support and responding from a team does help a child in their journey of understanding and learning about their trauma and how they can be safe.  However, we are stating that in this circumstance, further treatment in the formal sense of the term is something that we would also need the child to be receiving outside of Secure Care in order to fully address the underlying trauma and the other factors that contribute to that.  So that's in reference to the current status of the Kath French Secure Care Centre.
 

MR CROWLEY:  Yes, and that would also be needed, wouldn't it, to ensure that there wasn't a risk of a return of the child back to Kath French with the same types of behaviours that may come from the same root cause, notwithstanding the period of stabilisation and psychoeducation and other intervention which has already occurred?

DR THOMPSON:  Yes, that children will need ongoing support to, like you're suggesting, address some of the root cause of what might be contributing to some of those behaviours in the community.

MR CROWLEY:  Can I just ask you about that Welltree report.  If we turn back firstly to page 29, one section in the report commencing at page 29 deals with different models of care.  The section we just looked at about purpose is something that might flow from whichever model we're talking about, but models of care, these are     do we understand these as being theoretical conceptualisations of a framework for a Secure Care setting?

DR THOMPSON:  Yes.  So the models that are described in this section are the ones that I observed in the various Secure Care services, although these models can be utilised in other settings.  So, the Sanctuary Model, for example, is used here in WA, not just in Secure Care, but also across our residential care and also in other community service organisations.

MR CROWLEY:  Yes.  It's something which might be used in a setting which is a human services setting, not necessarily for out of home care or child protection?

DR THOMPSON:  Yes.

MR CROWLEY:  The Sanctuary Model which is referred to at the bottom of page 29 in the green section, as I understand it, that was previously the model that was being used at Kath French?

DR THOMPSON:  That is currently the model that is used at Kath French, and has been in place across residential and Secure Care for a number of years.

MR CROWLEY:  I see.  Then, if we go over the page then to the top of 30, you refer to the Welltree Model there    

DR THOMPSON:  Yes.

MR CROWLEY:      which is the one you spoke about earlier?

DR THOMPSON:  Yes.

MR CROWLEY:  Now, the Welltree Model is also now employed at Kath French?

DR THOMPSON:  In relation to the Welltree Model, the Welltree Model is an  
overarching, as you're saying, theoretical framework that guides practice and the Welltree Model has an outcomes framework.  So, in collaboration with the developer of this model, what we've done is that we have adopted the outcomes framework that is used under the Welltree Model, and that is what's been integrated into our service and it has fit quite well with our Sanctuary Model.  So it's not that Secure Care has switched the overarching theoretical model that we're using, it's simply that we've adopted an outcomes measure that was captured under this Welltree Model so that we can best monitor progress of children in our service.

MR CROWLEY:  I see, so this would now be the Welltree Wellbeing Outcomes, I think is how it's described elsewhere?

DR THOMPSON:  Yes, yes.

MR CROWLEY:  How are the outcomes of wellbeing under that model measured?  How do you say that you can assess the outcome here?

DR THOMPSON:  So the Welltree Wellbeing Outcomes Framework have six domains of wellbeing that speak to, I suppose, the overall picture of where a child might be at.  It is, as I said, it has 6 domains and there are 33 items throughout that measure.  In other services they use the entire framework when they're measuring change for a child; however, how it's been adopted at the Kath French Secure Care Centre is that we highlight five to eight key indicators that we will then track for that child from the moment that they arrive to the moment that leave.  And due to the nature of our service, we are focusing on items that speak to a child understanding safety, understanding their health, and also usually we would select an item that is in relation to hope about their future.  So those are the three key things that we see as most relevant to children under the current service that we function.

The indicators that we select, there are a few that are similar, or are the same for every single child that comes to our service and we also select a few indicators that are specific to what that child might be presenting with.  So, for example, for the children coming to our service, we would select five indicators.  One will be speaking to a child's emotional regulation skills, one might be speaking to their understanding of safety, and one might be speaking to their hope for the future.  And if the child is presenting with, say, some struggles with substance use, then there is an item that speaks to a child's understanding of the impact of substances on their wellbeing.  So we would select that as something that is relevant for them.

What we do in this space is then we     well, usually the senior psychologist is the person who will select which indicators are most relevant based on the information we have in a child's referral, and we send that to the care team that works around the child and asks them to provide some scoring around where the child might be at in relation to those things.

Our staff use those indicators as a way to guide their practice, so the staff and our education officer, they design our daily program activities to best address those five  
things.  So in a sense, they provide us with a focus and a way to own the goals for what we might achieve in that three weeks.

MR CROWLEY:  Now, when you talked earlier about assessment, an observational assessment being within that idea particularly at what's happening at Kath French, is that where it fits into the wellbeing outcomes, that the care team members are making those observational assessments of the child and then scoring those against the domains from the Wellbeing Outcomes Framework to identify a raw score or scores in particular domains.  Is that how we understand it?

DR THOMPSON:  So that's one of the ways that our observational assessments contribute to     well, that's how it fits with the wellbeing framework, yes.

MR CROWLEY:  Then going back to the overall goal of ensuring that the stabilisation has happened and that the child now has the necessary understandings at that basic level for release, does that mean then that you're looking for a particular score, or a particular level reached across the domains that have been selected before you can say, we can now measure and assess that you have reached that level?

DR THOMPSON:  In terms of the scoring that a child has in relation to this outcomes measure, it would not impact on whether or not they are released, if I understand your question correctly.

MR CROWLEY:  So, how does it relate then to that overall goal then of the one we looked at on page 37 of meeting, getting to that basic level so that the child can then be released?

DR THOMPSON:  What it does is it informs us as to where the child is at and what kinds of supports we might need to put in place in order to progress them to the next stage.  So it does give us some useful information about what a child might be capable of and therefore can inform what they need.  It has been discussed in the Irish Service whether or not this sort of outcomes measure should impact on the decisions around how long a child remains in a Service.  However, given the legislation and the short timeframes that we have into the Kath French Secure Care Centre, it would not be a fitting way to make decisions about a child's readiness to leave.  It does give us useful information about how we recommend and support a child going forward.

MR CROWLEY:  Now, the two aren't necessarily one must be met before the other can occur.  But how then is the assessment made that the child has achieved the basic levels of understanding and ability so that they may be released?

DR THOMPSON:  In relation to when a child is released, that decision is discussed in each of the child's meetings.  What we find is that for a number of children who come to our service, a lot of the behaviours that may have placed them at risk in the community are no longer present simply because of the nature of our service, that children aren't able to use substances.  They're not able to leave or to go to unsafe  
places in the community, so often a lot of the behaviours are no longer present whilst they're in Secure Care.  So from that perspective, there is an element of stabilisation of the behaviours because a number of them don't occur whilst they're in our setting.

MR CROWLEY:  But then one of the things that must happen, though, that you encounter is once the child goes back to the setting where those behaviours were exhibited, unless those things are addressed outside, there's likely to be a repeat?

DR THOMPSON:  There are a number of children that do return to our service and as you've highlighted in some of the previous statements that without addressing the root cause of what leads to the pain based behaviours that we see, that it's likely that we'll continue to see children in need of Secure Care.

MR CROWLEY:  Dr Thompson, in this particular hearing that we're having this week, we're focussed upon First Nations children with disability in out of home care, and here in your evidence we're looking particularly at the Secure Care within Kath French, but in the overall picture of where that fits within what I've just outlined.  I take it you have read and seen the situation provided by Ms Kalders    

DR THOMPSON:  Yes, I have.

MR CROWLEY:      which was provided as part of her evidence yesterday, and you're aware that there is an overrepresentation of First Nations or Aboriginal children in out of home care in Western Australia?

DR THOMPSON:  Yes.

MR CROWLEY:  And in particular, in the Kath French facility over the past 10 years?

DR THOMPSON:  Yes, I'm aware.

MR CROWLEY:  I take it you're also aware that there's a high proportion of those children that have complex disability needs as part of their presentation and their circumstances?

DR THOMPSON:  Yes.

MR CROWLEY:  For children in that category, are you able to tell us what specifically is done at Kath French to address, assess, however it might be described, the disability needs of those children that are coming into the facility?

DR THOMPSON:  At our service we aim to provide an individualised approach for all of the children coming to us, so that means we are collecting as much information that we can that is already available about a child, and we review their files and speak to their care team so that if there's any information that can talk to us about a child's level of functioning, their disability or any other important information about  
their current wellbeing, then we would use that to guide the way in which we respond to the child day to day.  And so that information is put together by the psychologist at our service, and then translated into particular recommendations and support that we would provide during their stay at Secure Care.

So I acknowledge that there are some children who are yet to be fully assessed, and so where possible, when we speak to the care team in the beginning, if there are any outstanding assessments or areas that need further investigation, then we collaborate with the Districts in order to arrange for assessments to occur whilst the child is in Secure Care.  So that may be drawing on services that are already involved with the child or referring to a private service or attempting to get another practitioner come to see the child whilst they're with us in order to have that assessment completed in the 3 week period.

The issue we have in that space is often the availability and resourcing in order to provide that kind of response in a timely fashion to children in our service.  We also rely on our feedback from the psychologist, the health team and our staff and our education officer to raise or highlight any areas that they feel a child may be struggling, and highlight if there is a need for that formal assessment, and we do our best to arrange that, but it is a challenge to be able to make such arrangements in such a short timeframe.

MR CROWLEY:  Now because of the short timeframe for what you've just said, it's not possible for the Kath French Service to be performing that primary function or role of attempting to address those underlying complex disability needs; it may be that the Centre i s working in collaboration or referring or assisting with having those addressed by others?

DR THOMPSON:  I think that it's a joint response in the sense that the therapeutic care the staff provide inherently is responding to the trauma in a way that aims to improve the child's wellbeing, so that does contribute to a child's healing experience.  However, in order to     when we're talking about their need for formal assessments, neurodevelopmental assessments and psychotherapy and other treatments, then we do rely on collaboration with other practitioners and organisations in order to provide that to our children.  And as I've said, that's quite difficult to be able to have that kind of responsiveness, given the timeframe.  So we do rely then on recommendations of having that occur when a child leaves our service as well and returns to the community.

MR CROWLEY:  So when the child is leaving, if there are those indications or those needs, does Kath French provide an exit recommendation or something which goes to the case worker or to the care team to say, these are the things that must be followed up to address those matters in the next stage for the child?

DR THOMPSON:  That's correct.  We do as much as we can within our timeframe, but in the discharge summary that's provided to a District and the care team, it will outline any areas that we feel have raised concerns and that might need further  
exploration for that child.

MR CROWLEY:  Can I ask you, Dr Thompson, a bit more then about the 21 day period.  If we could just go to page 9 of your report please, which is just in the summary introduction section.  You'll see on page 9 that you've set out in those little boxes there a number of key points, the second one referring to the short timeframe for the 21 days:

.....  that often doesn't allow for meaningful change to be consolidated.....

Then you go on to say:

..... resulting in almost 50 per cent of children returning to Secure Care after their initial admission.

Now, that's a very    

CHAIR:  Is this page 9, did you say?

MR CROWLEY:  Yes, page 9, Chair.  It doesn't have a number in the bottom right corner, it's got a teddy bear's face.

CHAIR:  My page 9 says something different and the reference to 50 per cent coming back is on a different page.  I'm trying to find it.  Anyway, I'll sort it out in due course, no doubt.

MR CROWLEY:  We have on the screen, if that assists, the relevant page.

Dr Thompson, I was just taking you to that one box on page 9 about juxtaposing the short timeframe with the 50 per cent of children returning after their initial admission.

In the middle between those two figures in that box, you've summarised that the short timeframe doesn't allow for meaningful change to be consolidated, but from what you've been saying, though, that what may be the meaningful change here are the therapeutic services that you've been talking about that can be done at Kath French, as well as whatever else might be arranged in that time period to address underlying issues or complex disability needs, things of that nature, by others who aren't necessarily within the service itself.

DR THOMPSON:  Sorry, can you repeat that question?

MR CROWLEY:  Yes, so what I was drawing your attention to is where you talk about "not enough time for meaningful change to be consolidated", in the 21 days, though, the things that are being done there are not intended to necessarily address the issues that might stop the child repeating the behaviours or continuing to engage behaviours and coming back.  It's not the start of it perhaps, but not necessarily what  
will prevent it.

DR THOMPSON:  Yes, what you're saying is that it would be the start of a process, and that that needs to be continued as the child transitions out into the community, and the difficulty that we have in that space is that there's very limited resources available to children and able to support the transition that we would hope for.  And arguably, for a portion of the children they end up back in Secure Care repeatedly, and so the question is then asked as to, what do we need to do in the Secure Care space?  But also, what do we need to be doing in that transition space to be able to intensively support our children in the community so that they don't have to return to Secure Care to have that stability that they're needing?

MR CROWLEY:  And it would be not only not returning, but not entering into Secure Care in the first place?

DR THOMPSON:  Absolutely, and I think it goes without saying that early intervention and prevention is what everyone is aiming to achieve so that we can minimise the use of any kind of service that deprives a child of their liberties.

MR CROWLEY:  Where resources might be allocated in a preventative way, they would be best targeted to go towards the early intervention and the supports before the need arose to consider Secure Care in the first place, or, if a child's been in Secure Care, to make sure that those resources are allocated in a way that are going to address the root causes so the child doesn't come back?

DR THOMPSON:  I think the answer is that resources are needed for both.  We do want to prevent children from ever entering into any kind of restricted environment, and the hope is that we can keep them safe in the community.  However, there will likely be a smaller portion of children     and I think it's important to reference that when we're talking about the children at the Kath French Centre, this is a small portion of children but they are in need of intensive supports, and so we really need resources at both ends so that when the decision is made that a child is deprived of their liberties, that we are providing them with as much resourcing and responding to all of their needs as best we can.

MR CROWLEY:  One thing that you mentioned earlier was the issue about what's available in the community to ensure that there isn't that return or that entry in the first place.  What is the situation, and do you have any views about what might be done, Dr Thompson, where in Western Australia, for example, you've got a very large geographical area and communities that are very remote, regional and remote, but you've got one Secure Care facility in Perth but services that may not extend necessarily to support outside the metropolitan area in the same level to those regional and remote areas.  What can be done for those communities and for when children are returning back to those environments?

DR THOMPSON:  Can I clarify, are you asking whether or not Secure Care services need to extend beyond Metro, or just the general services for supporting our  
children?

MR CROWLEY:  I'm talking about the early interventions, preventions and the supports if a child has come in and is being returned?

DR THOMPSON:  Okay.  I can only speak to my experience with the children that I've seen transitioning in and out of Secure Care and I know that there is often a demand for there to be intensive placements for those children, and that there is often a shortage of the availability of those intensive therapeutic care arrangements for children, and that is across the board and more so, therefore, in the regional areas where it may be more difficult to resource some of those intensive placements.  In a number of cases over the years that I've worked, the Department has developed bespoke models for a couple of children in order to best support them in the community, and I think that further work is being done and needing to be done in how we can use what we've learnt in those bespoke models to be able to     and whether that's provided by the Department or another organisation is another question     but what can be done to be able to provide some of these more intensive transitional environments for our children leaving Secure Care, because they are currently limited.

MR CROWLEY:  What about in that area the possibility or potential to utilise Aboriginal community controlled organisations or Aboriginal communities to be able to provide those type of bespoke supports for children?

DR THOMPSON:  I think that whenever possible, we absolutely need to be supporting Aboriginal controlled organisations to be leading the care of the Aboriginal children that are requiring that level of intensive support.

MR CROWLEY:  Is that something that is currently a policy or a proposal which the Department is pursuing?

CHAIR:  Do you mean only in relation to children, Aboriginal children in Secure Care?  Or do you mean for Aboriginal children with disability in care generally?

MR CROWLEY:  Thank you, Chair.  I'm talking generally, because my question is directed towards not only children who've come in, but stopping children coming into the service, the Kath French Service in the first place.  So it's the wider cohort that I'm asking about.

DR THOMPSON:  I can only speak to the fact that I know that the Department has policies around ensuring that we are best able to provide culturally appropriate placements for our children in the community, but it would be outside of the scope of my role to speak to the Department's broader standing in terms of their policies and intentions around engagement with Aboriginal controlled organisations more broadly.

MR CROWLEY:  Yes, thank you, doctor.  Can we go in your report to pages 133  
and 134, there are a number of recommendations that are set out, and the way in which they're headed     and you describe in your statement, I take it     133 are those which are specific to Kath French, and 134 were those that were generally about Secure Care settings regardless of where they might be.  That's right?

DR THOMPSON:  Yes, that's correct.

MR CROWLEY:  Now, for the ones on page 133 at the bottom, on the right hand column at the bottom, you've identified as a recommendation that the legislation be reviewed regarding the length of stay to enable an extension of a child's stay to up to six months with greater flexibility around accessibility to the community during this time to facilitate transition.

What's the rationale for that recommendation to extend from the 21 day period up to a 6 month period?

DR THOMPSON:  The rationale for consideration for an extension, it should be considered that this is not for every single child that comes into Secure Care that they would be remaining there for six months.  That's not the intention of this recommendation, but that we do need greater flexibility so that for the children who need it, they are able to stay longer and receive the care and support, the assessment and the intervention that they need in order to be able to safely transition into the community.  So arguably, for a number of children who come to our service, they only need that circuit breaker and then they are able to be transitioned and do not return to Secure Care and are supported safely in the community.  But there are a number of children who at the moment are being held in the Secure environment based on a legislative timeframe which is arguably somewhat arbitrary and isn't necessarily responsive to where they are at and if they may need a longer time.  I think that this is where we need to continue to have legislation to safeguard children from being kept in any kind of secure facility for an extended period, but that we also need flexibility so that in that 3 to 6 month period that they may be in a service, that there's much greater access to the community and they're not entirely secured in the way that they are now.

So, I think there are a number of children who require additional time in order to have the assessment and treatment and support and a safe transition back out to the community, and I think that when we look at the children who return to our service numerous times they are already spending an extended period in Secure Care and it would arguably be more beneficial for them to come to Secure Care once and have their needs assessed and met to prevent them from ever returning again, rather than have them go through a revolving door process and bouncing between our Service and a number of other Departments.

So I think it's also important to note that any consideration to change the purpose and the intent and the model in which Secure Care currently operates cannot be done in isolation, but has to be done in consideration for the broader spectrum of care, because essentially it doesn't matter what we would achieve in Secure Care if that  
child can't be supported safely in the community and transitioned out, then any potential gains from that space would be lost.

MR CROWLEY:  Now, in that answer you talked about if there was a longer period there might be assessment, treatment and support.  What you're saying there is, isn't it, that you'd be talking about a different model, a different purpose from the ones that we examined at the start of your evidence today which was about the circuit breaker stabilising, getting that minimum level of understanding and knowledge so that the child could be released in a short timeframe?

DR THOMPSON:  It would be considered to be a more intensive response, but still would fall into that category of intervention, I think it would be more comprehensive than perhaps what's being provided currently.

MR CROWLEY:  But you mentioned treatment as well in your answer.  Are you suggesting that a longer time period might incorporate then treatment in the sense of things that might be more intensively done to address the behaviours, not just simply the ones we talked about earlier in the current way in which the model works?

DR THOMPSON:  What I would be suggesting is that for the children who require specific treatments, and whether that be psychotherapy or input from other allied health professionals, that there would be an opportunity to at least commence some of those treatments and have initial gains and a foundation set in that space, and that the child would continue to be supported with whatever treatments are necessary when they transition out of the service as well.

CHAIR:  This is really the thrust of your very interesting report, isn't it?  You argue on pages 78 through to 81 that there should be a longer period available in the manner you've just described to Mr Crowley, and on page 78 you've got a chart which shows that the length of stay in Western Australia of 21 days is markedly shorter than any of the other jurisdictions to which you refer in that chart, and they presumably are the jurisdictions that you studied in the course of your Churchill Fellowship; am I right on that?

DR THOMPSON:  Yes, that's correct.  I think it's a    

CHAIR:  Sorry, please continue.  Sorry, I interrupted.

DR THOMPSON:  Sorry, I was just going to say that whilst we are talking about there being consideration around an extension of time, that's not to be mistaken or wanting to have children secured for lengthy periods, and it's important to note that the models where children are held for longer periods, they have access to the community and that it is not as secure and closed as it currently is in our service, so    

CHAIR:  Yes, I understand that and as I read the thrust of your report in the limited time I've had to read it, it is that you want that flexibility, you understand "secure"  
not necessarily to mean that for a particular child that child has to be in effect incarcerated for the period of whatever it might be, three months or six months, it's a period where flexibility can be applied, transition to the community, support given, and on page 40 you say:

Being able to offer formal psychological treatment in secure settings may lay the foundation for the children to begin their healing process.

So that's really you're putting forward a different model than the one that exists now, in the sense that it provides for assessment, proper treatment and looking to the longer term and you understand, of course, you clearly understand that there's a very difficult balancing act, because you're restricting the liberty of a child but at the same time you're trying to provide the child with the genuine support that the child needs in order to avoid the continuing effects that we've heard so much about, obviously, particularly for an Aboriginal child with disability?  Have I got it right, as to what you've been suggesting?

DR THOMPSON:  Yes, that's a good summary of the report and what I'm suggesting and I think it would be, again it's about making sure that that's individualised and that it's only for children where it's absolutely necessary, but there are children who don't need to be in Secure Care for an extended period and, I suppose, whilst this is the model that I believe is worth consideration, if we could be in a situation where children were able to be supported and prevented from getting to this space at all, then that would, of course, be what we all hope for.  But for those who do require this intensive level of support, it needs to be a more flexible model so that they can have those needs addressed.

CHAIR:  And coming back to some of the issues that were discussed at some length yesterday, people genuinely and legitimately worried about the deprivation of liberty and so forth might be comforted if the flexibility could be overseen by a court or at least an independent process of checking, as happens for people who are with intellectual disabilities who are confined in some way at present.  There is a regular process of revision, compulsory, it doesn't require on applications be made, so you might build that into the system that you're considering?

DR THOMPSON:  I think that any system that involves deprivation of liberty needs to require a strong safeguard to protect children from getting stuck in a service and being in a locked environment for any period of time, and any efforts to safeguard through legislation and through having independent advocacy and participation of the child in their family, where appropriate, is essential for this kind of process.

CHAIR:  Yes, we have a distinction in this country where punishment for a criminal offence is exclusively the province of the courts, but there are all sorts of forms of detention that are administrative in at least their inception, and that can include people with intellectual disability, it can include children who are covered by Secure Care, it includes people seeking protection visas who are kept in detention, and the rationale offered by the High Court is courts don't need to be involved in that  
necessarily because they're not for the purposes of punishment or the application of the criminal law.  But sometimes the distinction is quite fine and no doubt is lost on some of the people who are confined.

Sorry, that's a little homily.  Carry on.

MR CROWLEY:  Dr Thompson, is there currently a proposal that you're aware of for the Department to consider an extension of the period to enable a longer stay like six months that you recommend here; is that on the table?

DR THOMPSON:  So this report, my recommendations and some of the suggestions I have around changes that could be put forward to this model are something that the Department has this report and the information available to them, and I think it's a big undertaking and it's something that will be looked into, but that has to be considered within the Department's broader spectrum of care, which is a much larger undertaking, and I couldn't comment as to the Department's intentions around that space.

MR CROWLEY:  No, but just simply, do you know whether the Department is looking at this as an option or not?

DR THOMPSON:  The information around this is available to them, and I believe that the Specialist Child Protection Unit has the information from my report and some of the suggestions, and I can't speak to what they intend to do with that information.

MR CROWLEY:  But I assume that they would come to you for your input if they were?

DR THOMPSON:  Yes, I would imagine so.

MR CROWLEY:  They haven't yet?

DR THOMPSON:  I've had conversations in relation to my report, and I've had opportunities to engage in a number of discussions about the evaluation of our service and the implementation of recommendations from the evaluation.  I have ongoing discussions, but we are not in a place where we're discussing the remodelling of our service at this point.

MR CROWLEY:  Can I ask you to go, please, to page 98 and 99.  There's a couple more areas I want to take you to, Dr Thompson.  This one, 98, 99, this is coming back to the issue about the transitioning out or the step down concept of how that fits within the overall framework of Secure Care.  As you say on 98 in summary, that the transition process is just as important, if not more important, than what actually happens whilst the child is in Secure Care.

You're talking here about, in part, when the child leaves Kath French, that there is  
those necessary supports and services that are available to assist the child to make the transition so that they won't then again fall down or be exhibiting those type of behaviours that led to them being first admitted to Kath French.

DR THOMPSON:  Yes, I'm sorry, was there a question in that?

MR CROWLEY:  I was just clarifying that that's what my understanding is.  Is that correct?

DR THOMPSON:  Yes, yes.

MR CROWLEY:  Then on 99 you've given a sort of staged ideal world model of what might be a smooth transition for the ideal transition.  In terms of what is actually happening, or what may need to happen to enable that smooth transition, you're aware that there was a review that was conducted, an evaluation review of Secure Care that Ms Kalders referred to in her evidence?

DR THOMPSON:  Yes, I'm aware of the recommendations from the evaluation, yes.

MR CROWLEY:  And that there has also been prepared a document with an action plan of the Department's response to those recommendations; you're aware of that?

DR THOMPSON:  Yes, I'm aware of the document.

MR CROWLEY:  I just want to ask you about some of those points, please.  Could we just swap documents for the moment and could we bring up the document WA.0011.0001.0630.  I think this is tab 32.  Yes, that's the one.  If we could just zoom in on that one, please, at point 8 on page 3.  You see, Dr Thompson, in the table that sets out in this action plan, we have it in the first column on the left hand side the numbered recommendations that came from that evaluation report.  Here at 8:

Additional high support placements be made available to facility a staged or 'step down' approach for some/selected young people .....

Then if we track across we have what the Department has identified as the agreed actions that might respond to that recommendation, its status and then, any additional information about that particular matter.

What I want to focus you upon is in the additional information you see it sets out that there has been:

..... referred to the Specialist Child Protection Unit, Strategy and Partnership to be progressed.

Then:

 
The Out of Home Care Reform Program will be develop option(s) for a complex community care service .....

The complex community care service is not just in respect of this recommendation, it features in some of the others, but I'm interested if you could help us with that to tell us what your understanding is of what's happening with that, and the necessity for that particular complex community care service.

DR THOMPSON:  I'm aware that the complex community care service is something that's being explored by the Department, but I think that there are a number of suggestions in this space around what a step down service is, and I think that complex community care is something that sits more broadly in the Department's out of home care space and it's not something I could speak to with any more detail than what's offered in that document.

MR CROWLEY:  But do you know what currently is happening with progressing that recommendation?

DR THOMPSON:  Only what's in that document, which is that it's been referred to the Specialist Child Protection Unit and that that is being progressed.  I don't currently have any more information that I could speak to and it would be outside of my scope in relation to some of those discussions.

MR CROWLEY:  Are you aware of     we had some earlier evidence given yesterday about recommendations that were made in a particular inquest in respect of a young girl, where a recommendation was made by the coroner for the Department to fast track the implementation of its proposed complex community care service.  Are you aware of that recommendation?

DR THOMPSON:  I'm aware of the recommendations of the coronial inquiry, yes.

MR CROWLEY:  Has this been something that's been raised or brought to your attention as something where your input's sought about what might be done for this aspect of transition out of Secure Care?

DR THOMPSON:  All I'm aware of is what's stated in that document, which is that it's currently with the Specialist Child Protection Unit, and I have no further information that I could speak to in relation to where that's at and how it's being progressed.

CHAIR:  Mr Crowley, I think you're asking the wrong person about the Department's consideration or implementation of recommendations, and in a way it's not really fair to tax Dr Thompson with those questions.

MR CROWLEY:  Yes, thank you Chair.  I was only asking about any input from her and whether she's aware or not.

CHAI 
R:  Yes, I understand.

MR CROWLEY:  Can I ask you then please, could we go back to your report, and can I take you then to page 61, please?  Now, page 61 of your report, you have identified a section about cultural safety and you'll see, as you've written there in the introduction section that:

In order for children to have a positive care experience, all elements of their wellbeing must be recognised and addressed.

I take it from what you've set out here and what your understanding, learning and experience is, for Aboriginal children coming into Secure Care, part of ensuring their wellbeing is the necessity of making sure their cultural, spiritual and emotional connections to their country and their culture is an essential part of their overall wellbeing.

DR THOMPSON:  Yes, absolutely.

MR CROWLEY:  This section of your report, although you make reference to the large numbers of Aboriginal and, in New Zealand, Maori children being brought into Secure Care, your fellowship study happening overseas obviously didn't have a focus on Indigenous people in Australia, did it?

DR THOMPSON:  Yes.  So one of the limitations of the information in my report is that as the Churchill Fellowship is based on obtaining international research, that there was less of a focus on Australian Secure Care Services and also on Australian populations, and so it's noted that in order to implement the information in this report and the general recommendations that I've provided around Secure Care, there would need to be considerable consultation with Aboriginal communities and Elders and organisations to be able to best translate this into a culturally safe practice.

CHAIR:  That, if I may say so, is a very sensible qualification; I think you would agree, would you not, that the jurisdictions you've looked at are very, very different from Western Australia, each of them?

DR THOMPSON:  Each of the jurisdictions that I looked at have some similarities, but also a number of differences to our population, and I think even within Australia we would need to be looking specifically at each of the States and regions that we're working with to be able to provide an individualised and responsive service in each area.

CHAIR:  Thank you.

MR CROWLEY:  Can I take you to page 134 of your report, Dr Thompson, and just link this if I may for your comment to the recommendation that you've made at the bottom of the left hand column, about:

 
Research is needed to assist in undertaking risk factors specific to Aboriginal children.

In part, this is risk factors you would accept that might be posed by dislocation and removal from culture and community and country?

DR THOMPSON:  I think that there's a number of factors that are specific to Aboriginal children such as those that you've mentioned that would be important to do furthermore research into.

MR CROWLEY:  You also go on to recommend:

Considerable funding is also required to ensure the development of culturally competent service provision, including the early intervention and family/community support that enables children to receive necessary support without dislocation from country, family and community.

You're nodding there, sorry Dr Thompson, but this follows on from what we were looking at earlier in the report in that section about the cultural safety aspects that this is something that you recommend, that there be research and consideration of funding to enable those cultural safety considerations to be properly addressed?

DR THOMPSON:  Yes, so I think it's important to note that this sort of recommendation isn't something that is relevant simply to the Department of Communities, but more broadly as a State in terms of how we invest our resources to best support Aboriginal children and their families.

MR CROWLEY:  Yes.  Now with respect of that recommendation from your report, do you know, has there been any measures or any proposal adopted to take up that recommendation?

DR THOMPSON:  I think that it's a very broad recommendation, and that the Department is engaged in a number of projects in relation to how we best support Aboriginal children and families, but it would be outside of my role and area to comment on some of those, some of those projects that the Department are undertaking.

MR CROWLEY:  In the annexure to your statement Dr Thompson, you've referred to one particular role; it's at paragraph 24 of your substantive statement document which is in relation to the multidisciplinary team.  You've noted there's an ongoing need for an on site child and adolescent psychiatrist to provide ongoing treatment to children at the Centre.  But as I understand it, that role hasn't been filled at the moment, there isn't a person doing that role within the Centre?

DR THOMPSON:  What we have currently is we have a relationship with a psychiatrist who videolinks in and speaks with our health team on a fortnightly basis, and they can provide us with guidance or answer any specific questions that we have in rela 
tion to that field.  However, that psychiatrist does not provide assessment nor intervention for the children at our Centre and they aren't onsite.  So the Department has been supportive and they have funded the contract for us to have a psychiatrist onsite.  The difficulty lies in the ability to access a psychiatrist, given that there is a very limited number of child and adolescent psychiatrists in the State.

MR CROWLEY:  Just going back then to your report at page 133, please, I want to ask you finally about this other position that was part of your recommendation.  In your second point on the left hand column you've referred to or recommended:

Full time position for a Cultural specialist to provide guidance and intervention .....

At the Centre.  We've heard yesterday that there's a cultural support worker position now at Kath French.  Is that the same thing that you were talking about in your recommendation, or were you referring to a different role?

DR THOMPSON:  The therapeutic cultural support worker position is reflected in our practice currently, and is consistent with what I was suggesting in my recommendation there.

MR CROWLEY:  I see, so that is something that has been implemented following your report?

DR THOMPSON:  Yes, and I believe that it's not simply following my report, but that it was also a recommendation of the coronial inquiry that that be established.

MR CROWLEY:  Yes.  Thank you.

Those are the questions that I have, Chair.

CHAIR:  Thank you.  Thank you very much for your evidence, Dr Thompson.  I'm now going to ask my colleagues, Commissioner Mason and Commissioner Galbally if they have any questions, first with Commissioner Mason.

COMMISSIONER MASON:  No, thank you, Chair.

CHAIR:  Commissioner Galbally?

QUESTIONS BY THE COMMISSION

COMMISSIONER GALBALLY:  Thank you very much for your evidence and also, for the report from the Churchill Fellowship.  I'm interested in the topic of children under 12, which you refer to.  You're talking about another sort of whole program which you think would be appropriate; that going into Kath French isn't the right  
answer for them, as far as I understood it.

DR THOMPSON:  I wouldn't specifically talk to a separate program for children under 12.  I think that it's important, though     I mean, all children, we need to do what we can to be able to support them to not enter a secure facility as much as possible.  I think the concern was that in our Service and a number of other services, we're seeing children present with these behaviours that challenge, and pain based behaviours, at a younger age at a point that poses considerable risk, and I think we need to do a lot more work into supporting how we can intervene early for those children to prevent it from getting to the place of Secure Care.

COMMISSIONER GALBALLY:  That brings me to my second question, which is about tracking the pathway of children coming into Kath French and go (audio distorted) so that everyone knows, everyone participating in residential group homes or foster carers or Kath French or even Banksia Hill that everyone knows what happens, what is the pathway.  Is that done, as far as you know, so that you can get a real fix on the outcomes for each child over a period of time, like a longitudinal evaluation?

DR THOMPSON:  The Department's currently drafting an evaluation framework which we'll be able to     we're looking at ways in which we can better incorporate data to track some of the experiences of children; however, it's difficult in the sense that that would be requesting data from a number of different organisations and departments, not just Department of Communities, and I think that carries with it a number of challenges.

COMMISSIONER GALBALLY:  Well, that brings me to my final question.  In Kath French you're dependent on inter-relationships with other departments that can be siloed, such as Education for going in and coming out, such as Banksia Hill even, as well as mental health and other health.  Is there work being done, as far as you know, to break down those silos and to force them to come together in a way that's quite hard for government departments?

DR THOMPSON:  So we've been working to establish relationships in a number of levels.  We do have a relationship with the Department of Education and so we notify the alternative learning team about all of the children coming to our Service so there's an awareness in education around the children who are in Secure Care.  We are working to have relationships with Banksia Hill, and having gone there recently to liaise with their service, and we do our best to create positive relationships with each of the hospitals that we interface with when we're working with children.

In a broader level, there are also bilateral agreements and trilateral agreements that are being explored at a much higher departmental level to look at how we can better connect and provide a more consistent care approach to the children that is shared amongst those services.

COMMISSIONER GALBALLY:  Thank you.
 

CHAIR:  Dr Thompson, in your, as I've said before, very interesting report, you deal with the environment at pages     not the general environment, the environment of a Secure Centre at pages 42 through to 45, and you explain that environment plays a key role in how a child experiences Secure Care and can set the scene for how they perceive their care experience, and you highlight that there's a growing body of research that stresses the importance of building design in creating an environment that meets individual needs.  What is your assessment of the Kath French facility in terms of the environmental criteria that you've laid down in your report?  What's your assessment of that?

DR THOMPSON:  In relation to the physical environment, there's been a number of challenges that have been outlined in that space, and it's well known that it's not a purpose built centre and that that has posed us with some difficulties.  I think that we have recently had the opportunity to speak with an architect and raise a number of our concerns about the building, and a scoping report is being put together to assess what can be done to improve that.  It was an opportunity for us to provide the feedback that we've had from children, from visitors, and from staff over the years in relation to the building itself.

CHAIR:  You heard yesterday     I assume you heard yesterday     Commissioner Mason's question about the location of the secure facility and perhaps the inappropriateness of that.  That, of course, would not be addressed by changes to the physical characteristics of the building, but you're not aware, I take it, of any plans to change the location of the facility?

DR THOMPSON:  I'm aware that the Service, the building itself is being reviewed, and I think that given the comments made by Commissioner Mason yesterday, that it certainly needs to be considered as to the cultural appropriateness of the location of the Centre itself, given the history that we have on that land.

CHAIR:  In your report, you refer     and I think Mr Crowley has taken you to this     to a 50 per cent rate of children being admitted into the facility and then coming back.  You, I think, have been at the facility in your role as a senior clinical psychologist since 2014; is that right?

DR THOMPSON:  2016, yes.

CHAIR:  2016.  Has that 50 per cent figure changed in recent times?

DR THOMPSON:  I couldn't speak to the specific numbers.  I think that it sits generally between 40 and 50 per cent currently.

CHAIR:  Sorry, please continue.

DR THOMPSON:  No, and I was just going to say, sorry, that the children that come back tapers off in terms of how many times they come back, so it's only a small  
portion of children who come back numerous times.

CHAIR:  Yes.  One of the things that strikes me about our exploration of this issue, or the exploration of this issue is, as you say, that this is a very small proportion of a much larger group of First Nations children, Aboriginal children with disability.  I wonder whether there might not be a certain arbitrariness     not deliberate, but arbitrariness     in result as to which children actually go to the facility, because perhaps it wouldn't just be the 30 children a year who are admitted to the facility who have those kinds of complex problems.  Do you have any sense of whether the children who do get admitted are in fact the most complex?  Or is there an element of arbitrariness in how some get into the facility or are required to go into the facility, and others are not?

DR THOMPSON:  We have     the legislative threshold is very high, and we have a number of consultations and referrals about children that could come into our service, and it's important that we maintain a high threshold and don't continue allow large numbers of children into the service, so only children who meet the high threshold will be permitted into the service.

In terms of who is referred and consulted, we do rely on the Districts and the case managers who oversee the care of the child to be able to identify a child who is at risk, and that is determined based on the behaviours of risk that they would display in the community.  So we are relying then on the eyes of all of those caring for children in the community to be able to raise concerns about a child in relation to a referral for our service.

CHAIR:  Yes, without attributing any lack of competence or diligence in some people, you would expect there to be some divergence in practice and application of criteria, and particularly in a place like Western Australia which is so enormous geographically, and has very different issues arising in different parts of the State?

DR THOMPSON:  As you said, there's a lot of different issues in different parts of the State and I couldn't comment around how people are applying their interpretation of whether a child is at risk.

CHAIR:  Yes, I won't press you in that case.

I will inquire, is there any counsel who wishes to ask Dr Thompson any questions, and in particular Mr Bydder, do you wish to ask Dr Thompson any questions?

MR BYDDER:  No, thank you, Chair.

CHAIR:  I assume no other counsel wishes to ask Dr Thompson any questions.  That being the case, thank you very much, Dr Thompson, for your evidence and thank you also for the report that you have done which is both extremely interesting and extremely helpful.  Thank you for coming today.  Thank you both for the report, and for your oral evidence.
 

DR THOMPSON:  Thank you for your time.

THE WITNESS WITHDREW

CHAIR:  Mr Crowley, do we take now a break for 15 minutes?

MR CROWLEY:  Yes, could we return at 11.50, please, Chair.

CHAIR:  Yes, we'll resume at 11.50.  Thank you.

ADJOURNED    [11.35 AM]

RESUMED    [11.50 AM]

CHAIR:  Yes, Mr Crowley.

MR CROWLEY:  Commissioners, we will next be turning our attention from the Western Australian Secure Care setting to the Northern Territory, and having some evidence given in respect of the model that operates in that jurisdiction called Safe Care, or the Safe Care Model.  We will be hearing first from Nick Espie, who's the coordinator of community justice at the North Australian Aboriginal Justice Agency or NAAJA, who'll be providing evidence about NAAJA's views with concerns in respect of the safe care model in Northern Territory and the Secure Care practice in that jurisdiction.

A copy of the statement of Mr Espie is in Tender Bundle Part C at Tab 54.  I tender that statement, Chair, and ask that it be marked Exhibit 16.24.

CHAIR:  Yes.  Mr Espie's statement can be admitted into evidence and marked Exhibit 16.24.

EXHIBIT #16.24   STATEMENT OF MR NICK ESPIE DATED 10 SEPTEMBER 2021

MR CROWLEY:  With the statement there are three annexed document which is also in Tender Bundle Part C at tabs 54 and 57.  I tender those as well, Chair, and ask that they be marked as Exhibits 16.24.1 to 16.24.3.

CHAIR:  Yes, the additional documents to which Mr Crowley has been referred can  
be admitted into evidence and given the markings he has identified.

EXHIBITS #16.24.1 to #16.24.3   ANNEXURES TO STATEMENT OF MR NICK ESPIE

MR CROWLEY:  Before I commence with the evidence of Mr Espie, there are some other ancillary documents and materials relevant to this aspect of the hearing that I also wish to deal with at this stage before we go further.  There is a number of statements of documents that have been received from others who aren't going to be giving evidence.

Firstly, Chair, there is a statement of Ms Beth Lovell who's a family support case worker, Northern Territory Legal Aid Commission, a statement which is in the Tender Bundle Part C at Tab 87.  I tender that statement and be asked it be given Exhibit 16.27, please.

CHAIR:  Yes, Ms Lovell's statement will be given that marking, thank you.

EXHIBIT #16.27   STATEMENT OF MS BETH LOVELL DATED 25 JULY 2021

MR CROWLEY:  There is also then a statement prepared by Ms Katie Kelso, a solicitor in charge of the Care and Protection Practice, NSW Legal Aid.  A copy of Ms Kelso's statement is in Tender Bundle Part C at Tab 88.  I tender that and ask it be given the marking Exhibit 16.28, please.

CHAIR:  Yes, Ms Kelso's statement will be admitted into evidence and given that marking.

EXHIBIT #16.28   STATEMENT OF MS KATIE KELSO DATED 14 SEPTEMBER 2021

MR CROWLEY:  There are seven additional documents with that statement in the Tender Bundle Part C at Tabs 89 to 95.  I tender those documents as well and ask they be given Exhibit numbers 16.28.1 to 16.28.7.

CHAIR:  Yes, that can be done.

EXHIBITS #16.28.1 TO #16.28.7   ANNEXURES TO STATEMENT OF MS KATIE KELSO
 

CHAIR:  What, if I may ask, what does Ms Kelso's statement or affidavit go to?

MR CROWLEY:  Ms Kelso, Chair, refers to the Sherwood program and Sherwood House facility in NSW and speaks about her experiences as Legal Aid solicitor in charge of the care and protection practice of representing and dealing with clients in that facility.

CHAIR:  That's a secure facility, or one of them in NSW; is that right?

MR CROWLEY:  That's right.

CHAIR:  Yes, I see.  Thank you.

MR CROWLEY:  Finally, Chair and Commissioners, a memorandum has been prepared analysing the available Secure Care literature.  That is to be found within Tender Bundle Part C at Tab 96.  I tender that memorandum and asked that be marked Exhibit 16.29 please.

CHAIR:  Yes, the memorandum will be admitted into evidence and given the marking of Exhibit 16.29.

EXHIBIT #16.29   MEMORANDUM   ANALYSIS OF SECURE CARE LITERATURE

MR CROWLEY:  There are four documents that accompany the Memorandum, which are in Tender Bundle Part C, Tabs 97 to 100.  I tender those and ask they be given the markings Exhibits 16.29.1 to 16.29.4.

CHAIR:  Yes, that can be done.

EXHIBITS #16.29.1 TO 16.29.4   DOCUMENTS ACCOMPANYING "MEMORANDUM   ANALYSIS OF SECURE CARE LITERATURE"

MR CROWLEY:  Thank you, Chair.  Mr Espie is on the screen now.

CHAIR:  Mr Espie, thank you very much for coming to the Royal Commission, at least notionally in order to give evidence.  I understand that you will take the oath, and I would ask you please to follow the instructions of my associate, who will administer the oath to you.

WITNESS:  Thank you, Commissioner.
 

MR NICK ESPIE, SWORN

CHAIR:  Thank you, Mr Espie.  Just to explain where everybody is, Commissioner Galbally is participating in the hearing from Melbourne.  Commissioner Mason is in the Brisbane hearing room, I am in the Sydney hearing room at the Royal Commission, and Mr Crowley who will ask you some questions is in the same Brisbane hearing room as Commissioner Mason.  I will now ask Mr Crowley to ask you some questions.

EXAMINATION IN CHIEF BY MR CROWLEY

MR CROWLEY:  Thank you, Chair.

Thank you Mr Espie, I'm sorry to keep you waiting with those preliminary matters, but I didn't want to forget before we got to your evidence.  Can I ask you, Mr Espie, if you could please just start by telling us about yourself, who you are, where you're from and what your role is at NAAJA?

DR THOMPSON:  Yes.  Thank you.  So, my name is Nick Espie, I'm currently a lawyer working at NAAJA.  I've been a lawyer for about 20 years.  I'm also a local Territorian, my family is from Alice Springs.  My Aboriginal background in relation to Central Australia, I'm an Arrernte man.  I do have family connections now across the Northern Territory, but that does include the Top End and also the Kimberley in Western Australia.  I refer to that in the context of coming from a large Aboriginal family, including family living in a remote, regional and also in an urban setting.  So, quite a mix.

My family does include having experiences of, for example, taking my children through traditional lore ceremony, being involved in cultural activities, having an understanding of the broader kinship system and family networks, and there's also the various specific roles and responsibilities that family members have towards children, such as the roles of uncles as disciplinary figures and that sort of thing, avoidance relationships, so to have an understanding of that.

Myself and other family members historically     I've been involved myself in assisting in looking after a number of children in my extended family that for various reasons needed assistance, needed additional care and an additional place to live for a number of reasons.

So I sort of bring that context into my way of thinking in this space.  I'm currently working for NAAJA.  I've previously worked as a lawyer predominantly in criminal law, but also in child protection matters in the Northern Territory as well as for a  
long period in the Kimberley.  I've recently been involved working on the NT Royal Commission.  I directed community engagement there.  I have also been involved in following on implementing law reform recommendations of that Royal Commission as the manager of law reform at Territory Families.  Currently my role is coordinating community justice and engagement and reform work at NAAJA.

MR CROWLEY:  Yes, thank you, Mr Espie, for that introduction.  For today, the particular area that I want to ask you about and for you to tell us about is with respect to Secure Care for Aboriginal children, First Nations children in Northern Territory in out of home care, or under the care of Territory Families.  I take it, Mr Espie, that today you're speaking not only from the personal background and experience that you've described, but you're also speaking as a representative of your employer NAAJA?

MR ESPIE:  That's correct, yes.

MR CROWLEY:  You're familiar with NAAJA's views and what have been NAAJA's involvement and issues that NAAJA has raised to date with respect to Secure Care in the Northern Territory?

MR ESPIE:  Yes, that's correct.

MR CROWLEY:  I want to ask you then, just so we can understand when you do speak about these matters, you're aware, aren't you, Mr Espie, at the present time that in the current Secure Care model that's operating in the Northern Territory, there's been two children that have been admitted into the safehouse?

MR ESPIE:  That's correct, I'm aware of that, although they're not specifically known to clients.

MR CROWLEY:  Yes, not known to clients, but you understand that of those two children which have been admitted, that one was an Aboriginal child and one was a non Aboriginal child?

MR ESPIE:  Yes, that's correct.

MR CROWLEY:  And they not being NAAJA clients, you haven't had any direct involvement in their particular cases?

MR ESPIE:  No, I haven't.

MR CROWLEY:  So your evidence today is not touching upon their particular circumstances, you're speaking as a NAAJA representative and from your personal experience working in the Northern Territory on behalf of NAAJA about the broader issues?

MR ESPIE:  That's correct, speaking our general observations and concerns in the  
context of NAAJA's advocacy at a policy level, I suppose, and then also personal observations of here and also in a Western Australian context.

MR CROWLEY:  Yes, thank you.  NAAJA itself, it's an Aboriginal community controlled, community legal service.  Just tell us about NAAJA's operation and what involvement it has had to date with respect to the Secure Care and safehouse model?

MR ESPIE:  NAAJA's the Aboriginal Justice Agency Northern Territory, we do have wraparound services, as detailed in my statement.  In recent years, there has been, in respect of Secure Care facilities, NAAJA has touched on that in submissions to the recent NT Royal Commission into Youth Detention and Child Protection.  I believe we've tendered those submissions.

Recently, there has been correspondence this year in relation to concerns about the Secure Care facility, primarily those concerns have been correspondence to the agency about the legality of or the lack of a legislative framework around the current status of Secure Care in the Northern Territory.  That includes two letters that were tendered, one from January this year and another one from April raising concerns about the potential     well, the unlawfulness from the perspective of NAAJA and NT Legal Aid, concerns about that directed at the CEO of Territory Families.

MR CROWLEY:  Yes, thank you, Mr Espie.  I might bring up those letters and take you to some parts of them so you can further explain what issues NAAJA has raised in conjunction with colleagues at NT Legal Aid and why those matters are of concern to NAAJA and your clients.  Could we please bring up the document at, firstly, Tab 56 which is the document NJA.9999.0001.0001.

Mr Espie, the document on the screen there, that's the first of the two letters that you mentioned a moment ago, a joint letter from the Northern Territory Legal Aid Commission and NAAJA?

MR ESPIE:  Yes.

MR CROWLEY:  Of 12 January 2021.  Just looking at the first introductory part, it's referring to the Safe Care House Model, which is the way in which the Safe Care House, or the Secure Care facility is being referred in Northern Territory; that's right?

MR ESPIE:  That's correct, yes.

MR CROWLEY:  And this is a facility in Darwin?

MR ESPIE:  Yes.

MR CROWLEY:  Have you been to the facility, to the Safe Care House?

 
MR ESPIE:  I haven't been to the Safe Care House, no, I haven't.

MR CROWLEY:  Just going down to the second paragraph there, you'll see there's a reference to the authors of the letter referring to their understanding of the model being derived from the attached Family Territories document, and a visit that had been conducted at the house.  The document that was being referred to, you're aware there was a document which had been sent, or that had been provided to Legal Aid Commission and NAAJA which was the Safe Care Framework and Model of Care document?

MR ESPIE:  That's correct, yes.

MR CROWLEY:  Now, just in terms of the concerns which are raised, just on the first page there you'll see that there's a heading about transparency and the concern being raised about the document that's just been referred to did not appear to have been published and didn't seem to be available outside of Government and elsewhere.  Are you able to tell us about how it is the document was provided to NAAJA, and was it an invitation to comment, how it came about that NAAJA was writing back with the Commission back to Territory Families.

MR ESPIE:  I'm not sure specifically of when we were provided the document.  It is now available, I believe it's available or published.  We certainly do have a copy.  We, to my knowledge, weren't invited to contribute to that document or to any suggested comments or amendments, changes to that policy.  We certainly would welcome the opportunity to make some suggested changes to it, but to my knowledge, that hasn't happened to date.  Similarly, I hope I'm not jumping the gun, but similarly our recommendation of legislative changes hasn't occurred, notwithstanding that there's current drafting of reform so that the Care and Protection of Children Act in the NT by the Department, this hasn't been prioritised as an area of reform to date, certainly this year.

And I suppose, just taking a step back, that letter does also refer to almost 10 years ago when previous discussions occurred in 2012 and submissions made in relation to Secure Care.  So there's been a bit of a history of it.

MR CROWLEY:  If we just go over to the second page to follow on from what you've just said about a previous proposal, the top of page 2 of the letter, it's noted that in contrast to the position with respect to current Safe Care House Model back in 2012, there had been extensive consultation and public discussion about what at that stage was proposed legislation.

You're aware of what that proposal generally was at that stage about legislating the type of Secure Care setting?

MR ESPIE:  I'm not aware of that, except to the extent that it doesn't seem to have happened, and certainly their interpretation of where they're getting the power to detain children in this fashion is what we've detailed in that letter as something that  
we don't agree with the interpretation of combining the guardianship powers of the CEO of the Department with the powers under the Criminal Code of the application of force, generally speaking, for the discipline or safety or wellbeing of a child.  That's     I could only guess that there was     at some stage that was determined as sufficient and the proposed reforms back in 2012 didn't occur, but I don't know specifically what happened there.  As I said, as recently as this year there's been these letters, but no invitation or discussion about contributing to the development of a bill.  We've had extensive, the community sector's had extensive involvement in recent years following on from the Royal Commission with contributing to amendments in the Care and Protection of Children Act as per NT Royal Commission recommendations, but this is another matter that hasn't made its way to that level of co design or involvement by NAAJA or any other agency in recent years.

MR CROWLEY:  Now, Mr Espie, just so we can be plain, when you refer there to the Royal Commission, you were talking there about the Northern Territory Royal Commission into the Detention of Young People in the Territory?

MR ESPIE:  That's right, yes.

MR CROWLEY:  Now, as part of NAAJA's role, I take it that NAAJA does, when invited or when the opportunity arises, provide opinion or submissions with respect to potential legislative reform or legislative amendment?

MR ESPIE:  We're invited.  We certainly make every effort to.  At times when we identify quite significant concerns, we'll make submissions or write to agencies, such as with this letter.  But yes, when we get the opportunity, we do, but that is also subject to our own capacity.  I can discuss that subsequently, but certainly a big challenge is having the resources to contribute to that because generally it ends up being at our frontline lawyers, for example, trying to take the time to either brief management or contribute themselves to co design or consultation on things such as law reform or policy reform.  It can be very time consuming, and as best we can, we certainly try and be involved, but yes, it is a matter of     there's a lot more that could be done and we could contribute to if we had the resources.

MR CROWLEY:  Yes, and the correspondence that we'll be going to, one of the issues that was raised was the opportunity to develop or respond to anything in terms of the development of the Safe Care House Model that has now been implemented in recent times?

MR ESPIE:  That's right, yes.

MR CROWLEY:  You mentioned about the lawfulness     and there's a section in the letter     I don't want to ask you specifically from your legal point of view about what your opinion might be about it, I'm just going to ask you about what is set out there and ultimately, why it is that NAAJA, together with the Commission, has suggested that there needs to be a legislative framework for the model.  Under the section here of "Lawfulness", there are a number of points raised.  Can you just perhaps  
summarise the concerns for us.  You mentioned earlier that in the absence of there being some specific legislation for this model, what is your understanding then about what is relied upon as the basis for children in care being placed in the Secure Care house?

MR ESPIE:  It's relied on the     I think I just mentioned before     it's probably I suppose our assumption, because the response to both this letter     well, to this letter, was quite the bare minimal and didn't go into detail, but it's an assumption that it's relying on broadly section 27 of the Criminal Code, which talks about justified application of force for things like parental discipline and that sort of thing, and then also in the hands of the CEO of Territory Families having parental powers or guardianship powers under child protection legislation, but it's pointing out from the opinion of our Service and the Commission that that's not sufficient, and then obviously the letter details broader concerns, that there's not really any parameters, either in legislation or sufficiently in the policy, that cover things such as an appropriate minimum or maximum, in comparison to WA for example, that has a minimum of 21 days     sorry, a maximum of 21 days with only one further extension on a stay of secured care.  It's quite well defined with the time periods, whereas here we have nothing in legislation, the policy suggesting the starting point of a minimum of three months.  I don't believe there's any defined end date or maximum period, which is quite concerning, to think that we're talking about detaining or depriving a child of their liberty without charge for their own good.  Having an unconfined period of detaining a young person should be something that has significant oversight in policy, in legislation because it's a serious matter.  It's a serious situation particularly when we're talking in the context of the sort of children that end up in these facilities are children that are often exposed to trauma in their own lives, and they're the children in care.  So we are talking about children that have already had potential backgrounds of, you know, traumatic events in their childhood.  Potentially the trauma of being removed from family and being placed in care and balancing, are we going to commit another act of potential trauma in this young person's life?  You really do have to balance that up with strict criteria, strict oversight   

MR CROWLEY:  Sorry, Mr Espie, can I just interrupt you there, because there's a number of things that you've spoken about there and I just want to break it down a little bit more to understand what you're saying NAAJA's concerns were about the absence of the legislative framework.  Under this topic area in the letter, we're talking about concerns raised about the lawfulness, and with that you've talked about the need for this to be underpinned by a legislative framework.  Now, there were three things in there that I wanted to ask you to elaborate on, if you could.  The first was, with respect to the criteria, what is the basis upon which a child might be deemed to go into that type of Secure Care setting, if there's a need for it?  Why is it important for that to be something that would be the subject of legislative defined criteria?

MR ESPIE:  Because it is something that should be used in very limited circumstances.  We are talking, for the reason I just mentioned, it's detaining a child  
that hasn't necessarily committed an offence.  There does need to be oversight but there also needs to be accountability.  For example is the fact we've just experienced a number of years of trying to mend a broken child protection and youth justice system in the Northern Territory, serious concerns about the lack of oversight for children in youth detention, for example and an accountability so that things are done properly, and only done in the most limited of circumstances.  Secure Care shouldn't be about punitive measures.  There's concerns, there's been significant concerns raised of the years about not only secured care, but more so, children in care being placed in residential facilities, residential care facilities and accommodation and the lack of facilities.  An example is not wanting a Secure Care facility to be used for the too hard basket while we think about this maximum or minimum 3 month period, it gives us time to think about, what are we going to do with this kid?  It needs to be defined, well both in legislation and further broken down in policy, to have very strict eligibility criteria.  It has to be a situation where the child     and it's defined certainly in the WA policy, I'm not going to comment on current practice     but certainly in policy it needs to be a child that's not only a danger to others, but a danger to themselves.  I don't want to go into that for various reasons, but when you then mix that with the political climate and the desire to please an at times quite angry public in the Northern Territory, there's quite a desire in this jurisdiction for children that are seen as troubled children or committing crimes to simply be locked up.  You combine that with concerns about racism in this jurisdiction and that's something NAAJA's advocated for a strategy, government strategy to address racism.  But there's strong     there's certainly a demand, a public demand and hunger for just locking up kids, particularly Aboriginal kids.  We've had     I mean, we've had paperless arrests in the Northern Territory, and we don't need chargeless detention of kids.  It should be done in those extreme circumstances where it's for their own protection, and there's a lot of other things that you can do to protect children from their own behaviour, so this is really those extreme, you know, kind of the last straw.

MR CROWLEY:  Can I just follow up with that, Mr Espie, just two things.  The last part of your answer there, I take it then that NAAJA accepts that there may be extreme circumstances or circumstances where there may be a necessity for a Secure Care type of arrangement?

MR ESPIE:  That's correct.  It's not NAAJA's position that such a regime shouldn't exist at all.  It is a situation where there is a need.  Currently obviously there's the concerns detailed in these letters, but there is also similarly, and without going into detail, there's the situations that have occurred this year where we've written to the Department about the absence of a facility for a young person because of the limited numbers in the current facility and because of the gender situation.  We have a situation where there's a child that couldn't go into that facility because of their gender, and subsequently that's directly linked to that young person ending up in detention.

MR CROWLEY:  Mr Espie, can I just clarify, are you talking about a case this year where a child was proposed to go into the Safe Care House, but, because of the gender make up of children in the Centre, couldn't enter the facility?
 

MR ESPIE:  Yes, that's correct.

MR CROWLEY:  Was this a NAAJA client you're talking about?

MR ESPIE:  Yes, to my understanding, it's one of our clients, or has been a client of NAAJA.

MR CROWLEY:  Was this a child     because in this Commission we're focusing of course upon the experiences of people with a disability and violence, abuse, neglect and exploitation for people who are First Nations people with a disability     was this a person that you can say had a disability?

MR ESPIE:  Yes, without going into the details of the client, it is a situation where there were concerns and assessments as to their cognitive abilities or potential learning disabilities and things of that nature that were of concern.  So, yes, without taking the matter any further specifically or without taking that on notice, I would say, from the information I have, that it is a client relevant, it is a person relevant to the parameters of this Royal Commission in that sense.

MR CROWLEY:  I see.  And from your understanding, what you've told us a moment ago, because your client couldn't enter into the Secure Care house, you said they instead were placed in detention?

MR ESPIE:  Yes, that's my understanding, that there's a direct link between this young person then ending up in detention, yes.

MR CROWLEY:  I might come back to that in a while, Mr Espie, but I just want to go back perhaps to guide where we were earlier.  I was asking you about the legislative framework and particularly the eligibility criteria as to when a child may enter into the Secure Care facility, and in the context of your answer, you talked there about oversight in that aspect, as in terms of the eligibility criteria.  Is it a case that NAAJA has concerns or considers the eligibility and whether those criteria satisfy shouldn't necessarily just be a matter for the CEO of Territory Families, but the legislation might provide for that to be the subject of court oversight or a judicial officer's decision?

MR ESPIE:  That is     that would provide better oversight, so it's not limited to the Department making a decision.  I do believe, without having it in front of me, that's the case in other jurisdictions, potentially Western Australia, but it is requiring of judicial oversight, more broadly speaking     first of all, yes, oversight should be covered both in legislation and policy guidelines, which should include some judicial oversight and should include external oversight, I would suggest.  Again, it's broadly speaking, but other than the decision to utilise Secure Care, ongoing oversight including from the Children's Commissioner, which is currently occurring.  We've previously made submissions about external oversight, including an Aboriginal visitor scheme, an Aboriginal child care agency, or agencies as other examples of  
external oversight for our clients.  That would include or could include that cultural element as well.  So that's essentially in relation to that oversight aspect.

MR CROWLEY:  Yes.  Now can I then ask you about the second of the matters that I drew out from your earlier response, which is about concerns about the timeframes.  You mentioned your understanding was that there's a 3 month minimum period under the policy that currently exists for an admission into the Safe Care House.  What concern does NAAJA have about the minimum period, but also about whether there needs to be some other maximum period that might be the subject of legislation?

MR ESPIE:  It's certainly a concern     I don't know where they get three months from     that that's specified in the Safe Care Policy as a starting point.  I suppose our concerns, well, NAAJA's concern is that it's not defined, it should be     there's been previous     sorry, it's confirmed in that letter our position being a reference to the earlier 2012 submissions about 21 day periods.  That seems to be something a lot more in relation to this notion of Secure Care not being a stand alone option, being part of a collaboration of services, planning the child's life and a transition out of secured care, and actually fixing what's going on in their life.  It really should be a circuit breaker, a short period of time for that intensive therapy to stop whatever's happening in that child's life, a circuit breaker.  Three months seems more like a holding pattern of "Let's see what we can do with this young person", and that's sort of     I don't think we've detailed in our correspondence anything specific about that, but the concerns of NAAJA and also I guess my own concerns and observations comparing, for example, Western Australia where I've had some experience, or had the personal experience that I've referred to in my statement.  That brief period of time as a reset, as a circuit breaker seems appropriate, but if you look at their policy, it does relate to them having the collaborative kind of wraparound approach, multiagency approach.  I think they call     they refer to WA's rapid response policy or something of that nature.  This is not a stand alone solution, and it does     it's starting, when you look at our policy here in the Northern Territory, it does kind of have that feel that it's trying to do more than just be a circuit breaker.  I think the WA Policy refers to it not being     specifically not being a kind of circuit breaker.  Sorry, specifically to being something only of a circuit breaker, so     it's not really defined what the idea is in the Northern Territory, it really does need to define what is the specific purpose?  It does have to be that, but it can't just be an option of "Let's fix this kid for three months because they're out of control and we haven't quite charged them, but we also don't have anywhere", it can't be the too hard basket.  It really has to be the focus on fixes what's going on in that young person's life, because they can't do it for themselves.  That's what it has to be about.

MR CROWLEY:  Yes, thank you Mr Espie.  Can I just interrupt there.  Sorry, but can I ask if we could just go to the next page of the letter, because this is relevant to what you've been talking about.  There's a number of dot points at the top of the third page, and the first one is where we're focusing on at the moment, where there's a reference being made to points that have been raised by the Law Society of the Northern Territory, in an earlier submission that's been referenced here, back when  
the legislative proposal back in 2012 was being pursued.  The first point there you'll see is that there be a:

Maximum length of Therapeutic Residential Orders of 21 days

The 21 day period, that aligns with what your understanding is of the Western Australian legislation and your idea of a circuit breaker.  Is that your theory, on behalf of NAAJA?

MR ESPIE:  Yes.

MR CROWLEY:  What about at the other end, though, without there being legislation identifying a particular period and it's left as a matter of policy, does NAAJA have concerns about there being an extension or a maximum period not being defined?

MR ESPIE:  That's definitely a serious concern.  Having an undetermined period of time that you can lock up a child up is a concern, because it's the same department here in the Northern Territory that should be providing the solutions.  If they haven't been able to find appropriate communication, appropriate services, you know, in the public to be able to just keep ticking along and having a young person detained indefinitely, it's a serious concern.

MR CROWLEY:  Just looking at that list of points, the second one which is the eligibility criteria, we've already covered that one.  The next point there which is referring to practice standards, is that something that NAAJA has been consulted about, or views sought with respect to Aboriginal children who might come into the Safe Care House about what may need to be incorporated in the practice standards with respect to those children?

MR ESPIE:  I don't believe so.  Again, I can't be sure whether there was any consultation in 2012, but I suppose that's irrelevant, we're talking about 2021.  To date as I understand, I would say the answer in recent years is "no".  Would we welcome the opportunity?  Yes.  But to date, I don't believe there has been, and I suppose in comparison without steering off the track too much, yes, on paper the WA policy seems a lot more suited to what we're talking about here.  I heard the evidence of Peter Collins and Sasha Greenoff and others yesterday.  I would agree with a number of their recommendations, but certainly listening to that, in practice there seems to be some concerns, and I think the independent report that was recently developed in relation to that WA model refers to some concerns about practice standards and other things such as consistency with the application of the eligibility criteria and that sort of thing, as well as culturally responsive services, as well.

MR CROWLEY:  Can I ask you Mr Espie, if we can just go to the next part of that letter, I just want to ask you if you can perhaps expand on some of these points.  In the next lot of dot points where the letter goes on to note that there are some other matters which have been raised that remain a concern in respect of the Safe Care  
House Model, including the first dot point about the model should document how a young person is supported in their transition out of Secure Care.

In terms of that matter, there's a concern about there not being a documented transition pathway out, are you able to just explain from NAAJA's perspective what concerns there are about that not being the subject of some prescription?

MR ESPIE:  Perhaps the best way is drawing a link between lack of definition of a transition plan.  You put that next to the undefined maximum period of time, it really does cause concerns of young people languishing in this Centre without anything compelling and urgent     and urgent but also a well thought out transition plan.  I don't think I've advocated at all for a young person going into such a facility without any transition plan because on its own, I don't think it really is going to     it's the circuit breaker, but if it's not the "what next", that's where the concern lies, that you might be able to stop a young person's dangerous risk taking behaviour for that short period of time, but putting them back in the same environment that's going to expose them to some of the same concerns, and I guess just referencing, we are talking about young people that might have cognitive or learning disabilities, might have diagnosed or undiagnosed FASD or PTSD, things that affect their functioning that then lead them towards behaviour that puts themselves at risk, which includes dangerous criminal type behaviour, which includes putting themselves at risk of exploitation or substance abuse.  But those sort of concerns, going back into the same environment, you really won't have success and I refer to my own situation with a relative in my care that, a big part of that success did include them having a safe and loving family environment to come back to afterwards.  That, I think, was probably a big part of it, but for some, for other children in the context of a lot of our clients, a lot of young Aboriginal people in the Northern Territory, they're going to potentially end up back in residential care.  That's somewhere where they don't have someone that they love or trust or feel safe with.  Those are the sort of children that we would anticipate will end up in such a facility and have, to date, ended up in those facilities.  So not having a transition plan is a concern.

In referencing my own experience, areas where it almost all fell apart, when my young relative did come out of Secured Care, it included education not being up to speed and not being aware of everything that had happened, and essentially the young person coming, having had that circuit breaker experience, having a clear goal of wanting to get back into normal mainstream school, keeping away from negative older peers that exposed him to the risks and the dangers that caused him to end up in Secure Care, essentially, when education wasn't up to speed or part of that collaboration for the transition, it meant having to battle to get the young person back into school rather than the non mainstream area of education which was defined for disengaged children, which essentially     and in the context of where, I'm talking about a small town in the Kimberleys, but it's a similar context in the Territory where we're talking about, quite often, kids that are known to each other, so it meant putting this young person back in a situation where he was with all the kids that exposed him to risk, but also triggered PTSD     were a trigger for his traumas, and essentially it really could have undone all that work.
 

So I guess not having the transition means you really risk undoing all that work, and again, it's a balancing you're balancing, "This is going to cause trauma to this young person, we're going to deprive them of their liberty", that's going to hurt, we know that, but it's not going to be worth it if there's nothing at the other end, if you haven't got all the things in a row.

So yeah, that's why it's a concern, and just perhaps another comparison, I referred to the situation of education in Western Australia and the non mainstream classes or programs that often disengaged children end up in.  It's a similar context in the NT, for example, with children in detention often having, certainly historically it's been the case and it's something that I was made distinctly aware of from children in detention that I spoke to during the NT Royal Commission.  They're often not able to go back to mainstream school in a similar situation, in Darwin, where they have to go into re engagement centres or classrooms which are often physically separate from their school.  Getting back into some normalcy is not in the education space.

MR CROWLEY:  Mr Espie, just so it can be properly understood, in your last part of your evidence when you were speaking about personal experiences, you were talking about the WA jurisdiction there as opposed to the NT jurisdiction?  That's right?

MR ESPIE:  Yes, just in referencing the idea of having a transition, the model.  But similarly, here, we need to have that here too.  It's not really clearly defined in our policy, and again, not in legislation.  But without that, it's just one of the necessities, I think, because it's not a standalone solution, and that applies in both jurisdictions.

MR CROWLEY:  Now, can I ask you, Mr Espie, just to follow on from that in the letter.  The next several dot points that are set out on page 3 there raise a number of matters about family and kinship and cultural considerations.  Are you able to perhaps tell us if NAAJA has concerns about those matters in terms of clients that may enter into Secure Care, but, particularly, children with disability who may enter into the Secure Care facility, what importance there is with respect to maintaining and not depriving children of their culture and community, family and kinship?

MR ESPIE:  That is a concern, and I've also referenced our previous submissions to the NT Royal Commission.  There's reference in our child protection submissions, but also I think we did tender, reference to our youth justice submissions, similarities of the notion of detention or Secure Care, but recommendations 18.8 and then 116 talk about having smaller purpose built culturally responsive facilities, which is important for a number of reasons.

MR CROWLEY:  Those type of facilities you're talking about, are you speaking of those in the context of perhaps being in regional or other community areas as opposed to all in the one urban setting in Darwin?

MR ESPIE:  Yes, that's correct.  That's a concern.  It's a similar concern in Western Australia, particularly for example if you're right up in the Kimberleys and you end  
up all the way down in Perth, you are far away, you have very limited access to your family, to your country, and community.  Whilst we are talking about this idea of, ideally, 21 days or a very short period of time, you do have to balance that with being yes, in an environment where it can be a circuit breaker, but also acknowledging the strengths of culture, and there's     in my submission it's an important aspect of healing, and any sort of therapeutic treatment that someone has cultural responsiveness incorporated in that, but it's also referenced in other, I'm sure, many other reports.  The sexual abuse Royal Commission referred to Aboriginal culture.  There was a specific policy paper they put out during it.  Sorry, I'd have to take that on notice for a more definite reference, but referred to culture as a protective factor for young people.

I just go on further from that to say, if you're talking about getting someone back on track, genuine young people are off the rails, so to speak, putting themselves in danger through their actions, criminal act behaviour, exploiting themselves or being at risk of exploitation and substance abuse, generally that is the situation where going off track has involved being disconnected to their family, to their community, to their culture.  So disconnected to things that have a sense of strength to them and when we are talking about the kids that end up in these facilities are kids in care, quite often that's part of the problem, is that they've been removed from that, been removed from their community.  In the NT context, that means kids from northeast Arnhem Land ending up in Darwin, and kids from other areas of Arnhem Land, or Tanami Desert ending up in residential care in Katherine or Alice Springs.  So it is a case where those kids are often disconnected and that's part of the key effect of trauma on them.  And trauma in the sense that it has that disabling effect.  I'm not sure if I've mentioned that, but I'm speaking broadly about trauma as it does have that effect of a disability to a person's normal functioning.  No doubt you've explored that already.

But being in a facility that is close to home, is close to the appropriately strong people in your family that can come and visit you to let you know that you're not just going to be locked up here forever, and have an important role in the young person's life, having the ability to have someone, when there's language barriers or cultural barriers that you may not have     you know, a treating psychiatrist, for example, understanding things, having the ability to reference someone from the same cultural or family background is important for things not getting mistranslated or lost in communication.

MR CROWLEY:  Yes.

MR ESPIE:  And the therapeutic nature of a facility that recognises in this case, your Aboriginality or any culture, I suppose but in our context here, it's kids most at risk obviously being Aboriginal children.

MR CROWLEY:  Yes.  Mr Espie, we're running a little bit close to time, so I just want to ask you two more things, one just to clarify something with you and then to come back to something that's on the screen at the moment on the page we have.
 

Earlier you talked about the other subsequent letter that was written by jointly NAAJA and the Legal Aid Commission.  That followed, as you understand it, a meeting whereby Territory Families met with both agencies to discuss the concerns raised in the letter that we're looking at now, and then following that there was a further letter written back jointly on 6 April 2021, where both the Legal Aid Commission and NAAJA expressed disappointment about the response that had been received, and nevertheless notwithstanding there had been a meeting with a Ms Jeanette Kerr from Territory Families that there was still significant concerns.

MR ESPIE:  Yes, and essentially it's the same concerns that remain from our perspective, that they remain unaddressed and not responded to, and again, we're open to in any way being able to contribute to airing our views, concerns, contributing to solutions.  It's very much what our organisation is about, solutions for Aboriginal people in this sort of space, and ensuring that it's done in compliance with appropriate legislative framework, as well.  So yes, it remains unaddressed.  We're open to, notwithstanding the significant challenges, open to being able to contribute to appropriate legislation policy and practice.

MR CROWLEY:  Yes.  Now, Mr Espie, the last thing I wanted to ask you then, just going back to the letter we had on the screen, the final dot point on that page 3, which refers to:

Aboriginal community leaders, community organisations and peak bodies must be genuine stakeholders in processes relating to therapeutic orders and the secure care facilities.

Now that, are you able to tell us why that's an important concern that is held by NAAJA?

MR ESPIE:  It's important because otherwise as history has shown us with other concerns, particularly around the space of Aboriginal children in the justice system and in the care system, it's important that the Aboriginal community is involved.  We have access, essentially, to the affected people.  That's the justice agency or Aboriginal health or other Aboriginal community organisations.  We have access to that information, we hear the problems.  We are exposed to that on a daily basis.  There has been opportunities, and I reference there is opportunities with things like the Tripartite Forum, that's implementing the NT Royal Commission and also subsequent Productivity Commission reports in the space of youth justice and child protection, so we have come some ways.  There's a lot of work to do with having more of an equal say, but it's an important thing.  It's an important opportunity for the community sector to be involved.  We're a small jurisdiction.  We rely on     the government doesn't have all the answers, or all the solutions.  Quite often consultation is welcomed.  The challenge is it's not resourced from our perspective.  I mentioned the Tripartite Forum, that's one example of where, whilst we do our best to contribute, even there where we have at the moment one person employed, their role is to be involved in the co design of one aspect of this Tripartite Forum which is  
developing an implementation strategy for our recent Productivity Commission report.  That, quite quickly, is absorbing a full time position.  There's a number of other things, and that's just one forum, but essentially, having the ability to reach out to a service agency such as NAAJA, whilst we have a holistic view of Aboriginal justice, we don't necessarily have the resourcing to adequately contribute all that information that comes through our door to our lawyers, to our social workers that deal with children or deal with people coming out of prison or in the child protection space.  It's lost information if we can't harness that and actually use it to provide the case studies, to provide the answers to a lot of the concerns of Government and Aboriginal organisations, provide the culturally appropriate forum for Aboriginal people to be able to develop and grow those ideas.  To date, I don't think you can get that sort of     you can't foster that in a government environment and that is why they rely on the views of the Aboriginal sector.

MR CROWLEY:  Yes.  Yes, thank you, Mr Espie.

Those are the questions I have, Chair.

CHAIR:  Thank you, Mr Crowley, thank you, Mr Espie.  Mr Espie, I'll ask my colleagues whether they have any questions of you.

I'll first ask Commissioner Mason.  Do you have any questions of Mr Espie, Commissioner Mason?

COMMISSIONER MASON:  No, thank you, Chair.

CHAIR:  Commissioner Galbally, do you have any questions?

QUESTIONS BY THE COMMISSION

COMMISSIONER GALBALLY:  Thank you very much for your evidence.  I was just trying to get a sense of the sort of pathway from residential care to Secure Care and then back, or to juvenile justice and whether you have a view about residential care.  It's a big question.

MR ESPIE:  I think it's a sad situation if children end up in residential care.  I know there are circumstances where there may not be any other options.  The fear is if a child does end up in secured care coming from residential care, quite often kids come through our door as youth justice clients, are crying out for attention and love and care, and then simply can't deal with it.  The amount of children that are in residential care and then end up in detention, it's a very clear pathway, and they're alone.  They're dealing with people caring for them that clock on and off and are subject to a roster.  They're not family, they don't get the inherent love and care that you do at home.

 
So, I think if a child then ends up in secured care that's only going to create more cumulative harm to their wellbeing.  I'm not sure if I'm answering that question, Commissioner, but I guess it should be a last option.  Residential care has a place, unfortunately, but there's a lot more that needs to be done to resource kinship mapping so that we     and we could do that proactively if we were resourced properly in the Northern Territory, and that's the space that the Aboriginal community sector can contribute to.  We have vast family connections and networks and the ability to map families and appropriate kinship carers, family members and that sort of thing that can care for children.

There are a number of children that I've come across as a lawyer that have ended up in residential care, for example, and then ended up in trouble, and then, particularly when people that I know myself through professional and personal dealings, and the question is, "Well, why couldn't this kid be with Uncle so and so or their grandmother?"  The Aboriginal community, you have that ability of knowing the extended family networks, but that's not harnessed in a sufficient way to stop children ending up in residential care.  The ability's there, and a lot of families are more than willing to help if it comes down to it, needing, thinking and talking about what do they need that's appropriate for them to then be able to look after another family member?

The amount of times you see children in residential care, or they tell you about a family member who you go and talk to, and their experience of trying to put their hand up and say, "We'll help," it's quite tragic that those sort of opportunities are missed.  Kids end up not thriving in residential care and ending up down the wrong path and missing the valuable, important years of their childhood, their teenage years where they're supposed to be developing emotionally and developing their minds in a positive way.

So yes, the opportunities are there, but there's more we could be doing, and I know there's some steps that have been taken since the Royal Commission in that space to resource agencies for things like kinship finding and the like.  It's a space that we need to grow and harness that knowledge.

COMMISSIONER GALBALLY:  Thank you.

CHAIR:  Mr Espie, I'll just inquire whether the representative of the Northern Territory at this hearing, Ms Chalmers, wishes to ask any questions.

Do you wish to do so?

MS CHALMERS:  Chair, because some of that evidence was without notice     and I don't make any criticism in that regard     I will be taking some instructions over the lunch adjournment in terms of whether we seek leave to ask some questions of Mr Espie, but my concern at the moment is where that could possibly be fitted in.

CHAIR:  Yes, well I also don't want Mr Espie to be hanging around unnecessarily.   
I'm sure he has useful things he should be doing.

I'm not sure where you are, Mr Espie, are you in your office?

MR ESPIE:  I am in my office, yes.

CHAIR:  Would you be available after 2 o'clock, for example?

MR ESPIE:  I could be and happy to provide any information.

CHAIR:  All right, well you can take your instructions, that doesn't mean that you necessarily get leave to ask Mr Espie questions.  They'd need to go to issues that may be contested.  At the moment I'm not entirely sure what, if any, arrangements have been made between Counsel Assisting Mr Crowley and the Northern Territory as to whether findings are sought, if so, what sort of findings they might be.  So you might, during the luncheon adjournment, speak with Mr Crowley to see if that can be sorted out.

If you'd be good enough, Mr Espie, to make yourself available in the same place at 2 pm Australian Eastern Standard Time, which I assume is 1.30, is it, Northern Territory time, and in the meantime, Ms Chalmers and Mr Crowley will no doubt have constructive discussions in order to resolve whether any further questions will be asked of you.

In the meantime, thank you very much for your evidence, and thank you for being prepared to give your evidence to the Commission and for the assistance you've provided with your written statement.  Thank you.

We'll adjourn until 2 pm Australian Eastern Standard Time.

ADJOURNED    [1.07 PM]

RESUMED    [1.59 PM]

CHAIR:  Yes, Mr Crowley, I assume everything has been resolved, or has it not?

MR CROWLEY:  Matters have been discussed, Chair, and I expect that Mr Espie is not required.  I expect we'll be able to deal with any matters through some questions of Ms Kerr.

CHAIR:  Very well.  I'll regard that as a resolution.  Okay, what are we now going to do?

MR CROWLEY:  Commissioners, we are next going to hear from Ms Jeanette Kerr,  
who is the Deputy Chief Executive Officer of the Department of Territory Families, Housing and Communities who will speak about the office and administration of the Safe Care Model in the Northern Territory.  There is a copy of Ms Kerr's statement in Tender Bundle Part C at tab 58.  I tender that evidence and I ask that it be marked as contribute 16.25 please, Chair.

CHAIR:  Yes, Ms Kerr's statement will be admitted into evidence and become Exhibit 16.25.

EXHIBIT #16.25   STATEMENT OF MS JEANETTE KERR DATED 7 JUNE 2021

MR CROWLEY:  In addition to that, Chair, there is documents that are referred to in the statement and attached, which are in the Tender Bundle Part C at Tabs 59 to 83, 25 documents.  I tender those and ask they be admitted as Exhibits 16.25.1 to 16.25.25.

CHAIR:  Yes, the additional documents will also be admitted into evidence and be given the marking 16.25.1 to 16.25.25.

EXHIBITS #16.25.1 TO #16.25.25   ANNEXURES TO STATEMENT OF MS JEANETTE KERR

MR CROWLEY:  Finally, Commissioners, there is a supplementary statement from Ms Kerr, which is at Part C, Tender Bundle at Tab 84.  I tender that statement and ask that it be marked Exhibit 16.26.

CHAIR:  Yes, that can be done.  The supplementary statement will become exhibit 16.26.

EXHIBIT #16.26   SUPPLEMENTARY STATEMENT OF MS JEANETTE KERR

MR CROWLEY:  And the two annexures to that statement, which are at Tabs 85 and 86 of the Tender Bundle Part C, I tender those and ask they be marked Exhibits 16.26.1 to 16.26.2.

CHAIR:  Yes, that can be done, thank you.

EXHIBITS #16.26.1 TO #16.26.2   ANNEXURES TO SUPPLEMENTARY STATEMENT OF MS JEANETTE KERR
 

CHAIR:  Now, Ms Kerr, I understand that you are to take an affirmation.

WITNESS:  Yes, thank you Commissioner.

CHAIR:  Thank you very much for coming to the Royal Commission to give evidence.  If you would be good enough to follow the instructions of my associate, he will administer the affirmation to you.

MS JEANETTE KERR, AFFIRMED

CHAIR:  Thank you, Ms Kerr.  I shall explain where everybody is, as it's a little complicated.  Commissioner Galbally is joining us from Melbourne.  Commissioner Mason is in our Brisbane hearing room, I am in the Sydney hearing room and Mr Crowley, who will be asking some questions, is in the Brisbane hearing room, together with Commissioner Mason.  Mr Crowley will now ask you some questions, thank you.

EXAMINATION IN CHIEF BY MR CROWLEY

MR CROWLEY:  Ms Kerr, can you hear and see me okay?

MS KERR:  Yes, I can.

MR CROWLEY:  I may bring some documents up on the screen so we can all follow, but I will direct your attention to them when we get to them.  If I could ask you if you could commence by confirming for us what your position is, your role and what your responsibilities are within Territory Families?

MS KERR:  Okay, thank you.  Before I do that, can I please just acknowledge that I am giving evidence on Larrakia land and pay my respects to Elders past, present and future, and also acknowledge the First Nations people in the other locations the hearing is being held today.

MR CROWLEY:  Yes, thank you.

MS KERR:  My name is Jeanette Kerr, I'm the Deputy Chief Executive Officer for Families, for Territory Families, Housing and Communities.  After recent MoG changes I now have responsibility for all Families programs, out of home care programs, education and training and professional development, family support programs, out of home care programs, including the intensive therapeutic residential  
care, placements and the Safe Care House programmatically.  I also have program responsibility for youth programs, youth justice community programs and youth detention.  And domestic family and sexual violence prevention.

MR CROWLEY:  Yes, thank, you Ms Kerr.  In terms of the relevant legislation for care and protection matters that are part of the responsibility of Territory Families, is the Care and Protection of Children Act 2007, which is the principal legislation?

MS KERR:  Yes.

MR CROWLEY:  It is under that legislation that when a child is placed in care under an order, it's     through that legislation the child becomes under the care of the CEO?

MS KERR:  Yes.

MR CROWLEY:  I've just got a note here, Ms Kerr, can you speak up a little bit louder, please, so we can hear?  The interpreters as well at this end would appreciate that, as would I.  Thank you.

MS KERR:  Yes, I will.

MR CROWLEY:  Can we just start off, Ms Kerr, I understand that you're in a position to tell the Commission, as at today, about current figures with respect to the numbers of children in care and a breakdown of those children in the Territory?

MS KERR:  Yes, I can.

MR CROWLEY:  Yes, could you give us those figures please, so we can understand the position today?

MS KERR:  Today there's 962 children in out of home care in the Northern Territory.  Of those, 68 are in intensive therapeutic residential care.  One's in the Safe Care House and nine are in detention.

MR CROWLEY:  The balance, apart from those in the intensive therapeutic residential care and the Safe Care and detention, are they otherwise in foster care home based situations?

MS KERR:  Yes, so 904 are in home based family placements.

MR CROWLEY:  Thank you.

MS KERR:  Now, the particular area that I'm going to focus on with you, Ms Kerr, in the questions this afternoon will be about the Secure Care and the Safe Care Model, and the Safe Care House, its operation.  But if there are matters broader than that, given your responsibility and role, please feel free to comment upon those, as well.
 

MS KERR:  Thank you.

MR CROWLEY:  I've just been given another note, Ms Kerr, that there's some difficulties picking up the sound at your end.  Are we able to get the volume louder or the microphone closer, if that assists?

MS KERR:  Is that better?

MR CROWLEY:  I'm not sure, but we'll see.

If you could tell us, please, Ms Kerr, about the Safe Care House and the model in the Northern Territory, what it is and where it's located?

MS KERR:  Okay.  So, the Safe Care House is located on Foundation Road in Holtze in Yarrawonga.  It's a purpose built facility that was designed and built and operationalised about nine years ago, which was a combined health, child protection program, because at the time the Department responsible for child protection was under the Health Department.  It was designed for a range of things, including Secure Care for children and adults.  That was     at that time there was also a range of legislation that was drafted and extensive consultations around the program.  In the interim, it was not used or it was used for residential     general residential care and then it went into disrepair.

It's had a significant makeover and we have recommissioned it as a Secure Care house which we call the Safe Care House or program in April last year, 2020.

MR CROWLEY:  You mentioned there about there previously being a proposal to use the facility some nine years ago.  That, I take it, relates back to what we've heard about there being back in 2012 a legislative proposal that was to be put forward for a framework for Secure Care?

MS KERR:  There was, but it was quite a different proposal, or quite a different model than now.  It involved Secure Care for adults and children, people with a disabilities, children with complex behaviours, forensic disability clients, et cetera.  There's a twin facility in the Alice Springs region, and it wasn't really a feasible option to progress, not least because putting adults and children in facility is probably not suitable, and there was considerable disagreement about the length of time and purpose and there were different sorts of arrangements just in relation for young people to enter, including initial interventions, treatment orders.  So, it was quite a complex legislative model, as well.

MR CROWLEY:  But the facility itself     the house     was it built back then in anticipation that it may be used when that legislative reform came into effect?

MS KERR:  Yes.

 
MR CROWLEY:  I see, so the legislation didn't go ahead, but the house was built, then used for other things, but now it's been repurposed and refurbished?

MS KERR:  Yes.

MR CROWLEY:  I see.  And in terms of     since April last year to present, you in your statements referred to there having been two children that have been in the Safe House?

MS KERR:  Yes.

MR CROWLEY:  That's still the case, there's not been any change in the numbers?

MS KERR:  No, there's a third young person who's gone into that Safe House.

MR CROWLEY:  And as at the moment you've said today there is one person.  Is that the new third child that has now come into the facility?

MS KERR:  Yes, that's right.

MR CROWLEY:  And of the other two that came into the Safe Care House, we understand that one child was Aboriginal and one was not?

MS KERR:  Yes.

MR CROWLEY:  What about the third child that's now entered?

MS KERR:  The third child is Aboriginal.

MR CROWLEY:  Of those three, has there been any of those three children with disability?

MS KERR:  None of the children have a diagnosed disability or an NDIS plan, although assessments have been done and one is ongoing.

MR CROWLEY:  I might need to explore that a little bit further with you, but just so we can perhaps rule out some things or clarify at this stage, what is in terms of disability, what is the definition or understanding about how that might be recorded for a child coming into the Secure Care facility?

MS KERR:  Okay, so in terms of being recorded for any child coming into the out of home system, it would generally rely on a diagnosis.  In relation to the three young people that have been in the Safe Care House, one has, does not have a disability.  The other two young people are undergoing assessments and I think that there's likely, likelihood of mild to moderate intellectual delays or cognitive disorders, but certainly also functional disabilities in the case of one young person, or mental health issues.
 

MR CROWLEY:  In terms of the two children where there's an ongoing assessment, you've said two of the children were Aboriginal children    

MS KERR:  Mm hmm.

MR CROWLEY:  Can you tell us, of those two, is it one or two of those that are in that category?

MS KERR:  One.

MR CROWLEY:  I see.  Now, in your answer earlier about whether there was disability, you mentioned diagnosis, but you said also NDIS plan.  Is there a link between whether a child has an NDIS plan or not, and whether they may be recorded as a child in care with disability?

MS KERR:  No.  Not necessarily.  If a child, of course, has an NDIS plan they will be recorded as having a disability, but it's not essential, because we are often in the stage     we're in the stage of having assessments undertaken for a lot of children in care where we believe they may have a disability.

MR CROWLEY:  Now those assessments that you're talking about, and in particular the ones involving the children that have been in the Secure Care, what does that involve in terms of assessment?

MS KERR:  Okay, so it's unique to each child.  I can tell you at the moment, for the one young Aboriginal young person in there, a FASD assessment is being undertaken in relation to education, literacy and a range of other cognitive functioning, and cognitive function with that young person.

MR CROWLEY:  And is that the type of assessment done whilst in the Safe Care House, either in part or in whole?

MS KERR:  Yes, if that's appropriate, or they may leave the Safe Care House to go and have an assessment, depending on the individual circumstances of the young person.

MR CROWLEY:  Just so we're not at cross purposes there, I mean during the length of the time that they are admitted and within the facility whether the provider or the practitioner who sees them is off site or comes on site.

MS KERR:  So, it can be both, although it's called a "Secure Care" facility, Secure Care is really in relation to the young child or young person and the stage they're at as opposed to the facility in general.  So, as a young person who progresses in the facility and depending on their unique circumstances, they will regularly leave for different reasons, including medical and assessments and outings and family visits, or even a holiday, and then progress to a point where they can freely leave the house.
 

So, if there was a requirement of concern for safety of the young person or others, and then any assessment or clinical therapeutic work would be done in the residence.  If it was more suitable to do it outside and there weren't those safety and security risks, then we would take the young people out for those appointments.

MR CROWLEY:  But in taking them out, I take it that they would go with a worker or workers from the Department and from the centre to go to whenever they need to go and then they'd be returned back in their company?

MS KERR:  Yes.

MR CROWLEY:  Just to follow on with that, in that progression you were talking about, is there a point where the young person may be able to leave voluntarily the house unaccompanied and then be trusted to come back?

MS KERR:  Yes, and I could probably illustrate it by way of a local example, if that's suitable.

MR CROWLEY:  Yes.

MS KERR:  So one young person who came into the Safe Care Program, after about six or seven weeks started having a lot of outings, and they got increasingly regular, and we've done this with all of the young people.  Then, as the children reach a point where they feel safe and confident, and we progress and their behaviour is stabilised and regulated, we progress to an area where the young people will go out for outings.  It could be shopping, it could be going to a nature park, it could be going to the movies, it could be going out to school, and we would be in the area if they required assistance or support, and then it reached a point with this young person that, in discussion with her care team, it was determined that she could freely come and go from the Safe Care House, and that in discussion with her she set curfews for school nights at 9.30 and Fridays and Saturdays at 11, and there's always an agreed plan, such as obviously like any parent, we wouldn't want her to be catching public transport late in the evening, so we would drop her off, pick her up, and that was, you know, the usual arrangement in transitioning her back to reintegration in the community.

MR CROWLEY:  Now, in that situation, to enable the child to be able to come and go like that, does the position have to be reached that the child is no longer presenting a risk of harm to themselves or to others so that the Department can allow the child to leave and come back to the facility unaccompanied like that?

MS KERR:  Yes.

MR CROWLEY:  I want to ask you a little bit more about the three children that have been in the current Safe Care House.  Are you able to tell us what length of stays they had?
 

MS KERR:  Yes.  One, the first young person has been in there for 15 months, is not currently in there because she's in detention and that's a really     that's a unique situation.  The second young person came in in July last year and was ready to leave in late March early April, but we thought she was ready to leave.  She didn't feel that she was ready to leave, so then she remained for a further month and has had quite an extensive transition to foster care, and the third young person has only been in there a matter of weeks.

MR CROWLEY:  Right, so the second case that you spoke about there, I take it that's the example earlier of the person who could come and go as part of their transition?

MS KERR:  Yes.  Which is the aim for all of the young people.

MR CROWLEY:  The aim being that there would be a point reached where there's a transition phase before they end up leaving?

MS KERR:  Yes.

MR CROWLEY:  I just want to move away from the individual cases, but just still be relevant to this, to ask you then about the recommencement of the need for the Safe Care House.  You mention in your statement that it was an imperative and that out of the situation at that time with the two children that were in need, there had to be a reasonably quick and short timeframe to commence the operation of the Safe Care Model and Safe Care House.

MS KERR:  Yes.

MR CROWLEY:  Would you just explain about that, if you could, please, about why it became such an imperative in those circumstances?

MS KERR:  Okay, so we had two young people with extremely complex behaviours.  There was a significant risk of safety to both of them and, I mean, a risk of serious injury or even death in my view for both young people, and they were, there were no other placement options at all, no other providers would provide care for them.  We don't have internal residential care.  There were no suitable interstate options and there would be significant risk in that and also, our agency and myself were of the view that these young people are in our care, and it's our responsibility to apply all resources and care that we can to ensure that they achieve the greatest outcomes, and putting our young people interstate in placements we think is an abrogation of that responsibility.  So, in terms of doing this, there was no other option, no other feasible and safe option.

MR CROWLEY:  At that point, what was the timeframe over which the need was identified and then the facility was operational?

 
MS KERR:  The need's been identified on and off for many years, but there's been a lack of will or courage or support for it.  I think it got to the point in early April, or mid April 2020, where it was absolutely clear to me that we needed to make a decision to put in place a program for these two young people that would keep them safe, and from that point it was about six weeks to when we commenced.

MR CROWLEY:  Now, in the six weeks, what was the process of resuming whatever framework needed to be put in place, and getting that established so that the house could commence operating in that timeframe?

MS KERR:  There was obviously some additional infrastructure works and furnishings and fittings.  There was the initial development of the framework and Model of Care.  To support us with that, we recruited a manager who had been the assistant director for the Kath French Secure Care Centre, which was obviously a great support, and then we have a range of other staff who are really quite experienced in this field.  We worked with, it was really quite a huge team effort, our policy area, our education and training area, our clinical practices and professional services area.  We had consultations with our clinical professional governance committee who are also really quite expert in the area, particularly Dr Farr(?).  The staff spoke with Sherwood House staff on a number of occasions to get advice, and we also did a literature review and largely based our decision making on the report of Dr Kelly, Kelly Thompson.

MR CROWLEY:  Dr Thompson.

MS KERR:  There was other documentations we looked at, but it was largely on the report of Dr Thompson.  We also reviewed the previous material, consultations, legislation and it was a very basic framework, which would not have been fit for purpose for what we were trying to achieve in a trauma informed model.  We'd also done significant work with the ACF to develop a Therapeutic Residential Care Model, or the Intensive Therapeutic Care Model that we rolled out, so this was an extension of that.

MR CROWLEY:  Now, the two young people that gave rise to this need to bring about the Safe Care Model in operation, they were at the verge of potentially being released from youth detention?

MS KERR:  One was, and the other was in the Safe Care House being cared for as     in a general resi care model which just was not helpful or successful at all.

MR CROWLEY:  You explain in your statement that because of their circumstances, it wasn't possible for them, they didn't have a residential care placement which they could actually go to, or in the case of the child that was in the house already, I take it you mean a residential care placement that could continue?

MS KERR:  So that young person was in the house, and we had a range of our own staff and supplementary staff from another care agency or organisation.  There was  
not a single intensive therapeutic care provider who would or could take either young person.

MR CROWLEY:  As for the rationale or the purpose of the facility, in your statement at paragraph 17     this is your first statement     you've set out the purpose is to provide a safe place of care for young people with extremely complex needs and a demonstrated pattern of aggressive or high risk behaviour, which presents a potential risk of significant harm to themselves and others in circumstances where all other placement types were demonstrated to be unable to meet their needs.

Now, that part that I've read there, Ms Kerr, it's describing a purpose, but I'm not sure if you were listening earlier to the evidence given by Dr Thompson?  Were you able to hear that this morning?

MS KERR:  Yes, I was.

MR CROWLEY:  You'll recall that I asked Dr Thompson about the purpose of the WA model, and she was talking there about from her report that there were different purposes that she'd identified through her study of, one might be an assessment, one might be intervention.  There was obviously a detention model which is not completely relevant here at the moment, but also therapeutic model.

MS KERR:  Mm hmm.

MR CROWLEY:  The purpose of the Safe Care House in the NT, are you able to tell us where that sits within those concepts of a model and purpose?

MS KERR:  So, I guess what I described before is really the imperative.  The model would fit, would essentially be an intervention model, where initially it is about intervention, circuit breakers you've heard mentioned multiple times today.  We support an assessment and then therapeutic intervention to transition or reintegrate young people back into the community.

MR CROWLEY:  All right.  Now, there's always differences between the model that's been employed in Northern Territory and the Kath French facility that Dr Thompson spoke about today and other jurisdictions, as well, but just at the moment on this question of the purpose or the rationale for it, at least one purpose is that same circuit breaker, stabilising of behaviour.

MS KERR:  Mmm hmm, yes.

MR CROWLEY:  But are you saying that there's also then not just therapeutic care being provided, but there may be some other actual therapy that's provided or other supports that are actively provided?

MS KERR:  Yes.

 
MR CROWLEY:  And is that a point of distinction to the WA model that we've heard about?

MS KERR:  I think there's a number of significant distinctions.  The purpose is not just for a circuit breaker, because I think as Dr Thompson said, it pretty much becomes a revolving door, much like our young people that go to detention, it's not helpful at all.  In 21 days it is very, very challenging to really achieve anything with the young people, so it is a therapeutic intervention that does start at day one.  It's not like there's circuit breaker, stabilisation, and then therapeutic intervention.  It's not exclusive, mutually exclusive.  So in terms of the type of therapeutic interventions, it's the relationships with the staff on a daily basis, it's the intensity of the wraparound staff that are there.  We have a clinical specialist there full time to work with staff to be able to review and assess their practice on a daily basis, and how they manage things and how they could do better and identify what may be triggers for the young people, what might support their behaviours.  We have psychologists that work directly with the young people and under the new model that we're developing with the Australian Childhood Foundation, that will be what we call a .6 FTE or about 25 hours a week for the young people in there, direct intervention.

We also have things in place.  We have an Elder in residence in our agency who is a particularly renowned doctor of social work, Dr Christine Fejo King, whose expertise is around kinship and comparisons between the Larrakia and Warumungu nations in the Tennent Creek/Barkly region.  Each young person who is Aboriginal has a cultural support worker or adviser.  So for example, of the one Aboriginal young person in there now, her senior Aboriginal community worker is someone that knows her family very well and has worked with her in the past, so that relationship is ongoing.

Other aspects of this, we have had equine therapy, dog therapy, one young person was learning the violin, another was doing rapping and recording.  There is gymnastics, there's what we call the Balance Choice Program which is a social and emotional and wellbeing program around expertise and health.  The nutritionist comes in when the young people reach a point.  They design their menus and cooking with them.  We have art lessons.  For example, there's a young woman in there at the moment who's doing a cultural mural in there with the art teacher.  There's a videography program that is working with the young woman to develop her story in film.  There is also     I won't say the name, because it will say what community she comes from     but a specific holistic wellbeing and cultural program from her remote community that is coming in and working with her.

Then on the more clinical type intervention, there's the service that we have on a panel contract that is doing the Foetal Alcohol Syndrome Disorder assessment and the three domains of speech, language (audio distorted)  paediatricians involved and on the care team.  Family regularly visit all of the young people, even the young one who is interstate, we fly her family over reasonably regularly and have taken her back there for holidays.

 
Then, bespoke to one young person's needs in there is a treatment order for volatile substance, rehabilitate     abuse rehabilitation program.  There's someone from a local cultural healing centre that is working with her also.  Australian Childhood Foundation, obviously, so these are the range of programs.  So, there's some that are core, obviously, and then there's some that are bespoke and designed or requested by the young people who are in there, but they have a full program on a daily basis.

MR CROWLEY:  That range of activities and supports that you're talking about there, going back to the question that I asked about it not being just simply the circuit breaker type of model and purpose, those things that you've just explained, I take it, are then moving into the next phase of what might be broadly about putting in place the supports and things for the purpose there, but with a carry over for when they exit?

MS KERR:  Yes, but when we say "phases" some of those programs will start on day two    

MR CROWLEY:  Sorry, Ms Kerr, can I just ask you to stop there, please.

I'm sorry, Chair, we have planes flying past our window here and we can't hear properly and the interpreters are unable to perform their service.  Can we have a short break, please?

CHAIR:  Yes, we can have a short break until the attack is finished and then we'll resume.

MR CROWLEY:  Thank you.

ADJOURNED    [2.38 PM]

RESUMED    [2.50 PM]

CHAIR:  Thank you.  I understand that the Air Force or whoever it is has ceased their buzzing activities, so please do resume.

MR CROWLEY:  Thank you, Chair.

Ms Kerr, did you hear the evidence that was given earlier today by Mr Espie from NAAJA?  I think you might be on mute, Ms Kerr.

MS KERR:  My apologies    

MR CROWLEY:  It's very faint at your end, so if you could speak louder or adjust the sound, that would be great.
 

MS KERR:  We have the sound on 100 per cent, so I'll try and speak louder.

MR CROWLEY:  All right, thank you.  One of the points that Mr Espie raised earlier on behalf of NAAJA, and by reference to the correspondence which I understand you've seen and been a party to discussions about previously    

MS KERR:  Yes.

MR CROWLEY:      was that there was no consultation with NAAJA during the period when it was determined that there would be the need to have the Safe House commence and its actual commencement of operation.  Now, was that the case: there hadn't been consultation with NAAJA, in particular, or other stakeholders like that in the community sector during that period?

MS KERR:  In that period, I'll have to refer to my statement for the exact dates, but in that period we did have a meeting with NAAJA where our CEO and others were there and we gave them the framework document, the very first draft, and explained what the intent was, and what we were doing and what we were trying to achieve, so that did happen.  It would have been a meeting of about 45 minutes to an hour.  We also did that with the Children's Commissioner in her office and other providers, Government providers in particular.

MR CROWLEY:  I see, and was it then following that meeting and giving the draft of the framework document that the correspondence then came from NAAJA and the NT Legal Aid Commission?

MS KERR:  Without referring to the documents, my recollection is that that was quite a number of months later, that that letter came in from both NT LAC and NAAJA, and in that letter they had said that they hadn't received that document, so we provided it again to both, along with the operations manual and discussed their concerns.

MR CROWLEY:  Was there any involvement with those organisations or other similar types of organisations in the development of the draft framework and the policy that was going to attach to the operation of the house?

MS KERR:  Only that meeting where it was presented to them, and they were given that document.  The feedback was there was no negative feedback, and there was concerns about were we going to progress a legislative framework.

MR CROWLEY:  Now the legislative framework issue    

MS KERR:  Mm hmm.

MR CROWLEY:      you understand from your dealings with the matter and the correspondence from those legal service providers that they raised that as a particular  
concern that there was an absence of a legislative framework that would underpin the operation and the eligibility and the criteria and other important features of the workings of the Safe House?

MS KERR:  Yes.

MR CROWLEY:  Now, when the Safe House commenced, it commenced without that legislative backing but with a range of policy documents that provide the necessary framework?

MS KERR:  Yes, that's right.

MR CROWLEY:  Now, what's the situation as at today?  Is it still policy without legislation?

MS KERR:  As at     I could probably elaborate.  So, we did get a legal opinion from the Solicitor General's office.  With that and the Government's mechanisms and oversight mechanisms that we put in place, including oversight policies, unfetterred access to the Office of the Children's Commissioner, legal services and others involved in the very big care team, in addition to, we also have a philosophy of bringing the community in as much as we can and that's indicated by the vast range of service providers that come in and work with young people.

We also have an executive oversight committee, a weekly review of any incidents in CCTV.  That's done by the director and below, and a range of things that we     that has given us comfort that it is safe.

In addition to that, both young people who were in there were court ordered to be there, one on a suspended sentence and one on bail.  However, in saying that, we absolutely agree that there needs to be a legislative framework, and that's for long term protection of the program and of the young people, and in so doing that, we have a legislative reform program every year.  This year the Safe Care House was originally on the legislative reform program that was to be, and drafting commenced to go before, the instructions to be improved in March and to be progressed for September October sittings.  However, it was determined to defer that to stage 2, which is the intent to develop a single Act, and that was for a number of reasons.

One is the complexity of the model, and as you know, we're still working through and developing with the Australian Childhood Foundation a bespoke     I won't say "bespoke", but a model that fits with our other care framework, but also within the cultural context for our young people.

So, in terms of the model, in terms of the complexity of that, the Office of the Children's Commissioner has done, with our invitation and our own monitoring, visit, and we are awaiting the report from that, which we've only recently received and has just been finalised in the last weeks.  So with all of those factors in mind and also understanding that we absolutely have to do a comprehensive consultation  
around this, particularly with all of our Aboriginal community orgs, we determined to defer it to the legislative program next year, and I received advice this morning from our Executive Director in strategic services that we have proposed dates for next year, which mirror the dates from this year.

MR CROWLEY:  Now, in terms of that process, and we can expect from what you've said that on that legislative program, legislation will come into effect at some stage in next year, 2022    

MS KERR:  Mm hmm, yes.

MR CROWLEY:  --- but in the meantime the policy framework remains in place?

MS KERR:  Yes.

MR CROWLEY:  And between now and then, do we understand you to say that there is a consultation process, public consultation is being sought?

MS KERR:  I don't know the exact mechanics in terms of public consultation.  There is a legislative process.  We would absolutely be going out to all of the agencies we intersect with, all of the government departments     Aboriginal Medical Services, NAAJA, NT LAC, Children's Commissioner, Anti Discrimination Commissioner     we go to all of those bodies.

MR CROWLEY:  Yes, and what about to Aboriginal community leaders and organisations in remote and regional areas, will they be consulted?

MS KERR:  Okay, so when I talk about the Aboriginal community control orgs that we work with, all of our family support grants and all of our Aboriginal carer services and family finding grants, all of our youth diversion and youth program grants and contracts are all with Aboriginal community controlled orgs.  Across the Territory we probably have about 20 ACCOs that we have contracts and programs with, so there, that is the group and that encompasses most, pretty much all of the communities in the Territory.

MR CROWLEY:  What about from the disability sector and specialist advice with respect to children who have complex disability needs?  Is that part of the process and who is involved in the consultation there?

MS KERR:  So that is something we can coordinate through our Office of Disability, and taking the broad definition of "disability", I completely understand that that would be necessary, but this is not a placement where we would have children with significant intellectual disabilities or even moderate intellectual disabilities or physical disabilities.  This is a completely different care model.

MR CROWLEY:  I'm not sure I understand about that, Ms Kerr.  What is different, and what do you mean by "There wouldn't be children there with those sort of  
complex disabilities"?

MS KERR:  Physical and intellectual disabilities.

MR CROWLEY:  Yes, so children with physical and intellectual disabilities, where would they be placed, if there's a need or a satisfaction of the criteria for the Safe House model?

MS KERR:  Look, I guess that if that was the case, in that if there was a young person with a very complex physical disability and all of the other criteria applied, I guess it's an option, yes, but you know, we're more than happy to consult on it.  There's not an issue there    

MR CROWLEY:  Sorry, Ms Kerr, I just don't understand what would be the placement option for those children.

MS KERR:  Well, for example, there are some, a number of children with complex disabilities, physical disabilities who are in out of home care who have disability placements with specialist disability service providers.  We also manage the voluntary out of home care program, which only has three young people in it, and the vast majority are supported with family.

MR CROWLEY:  Okay, so one point of distinction that you might be raising with me Ms Kerr is complex disability needs.  Who determines or makes the assessment as to whether a child with disability needs might fall into the category of complex or not, and need to be cared for somewhere else other than what might otherwise put them into the Safe House?

MS KERR:  I'm not really sure that I understand your question.  I mean, with the vast range of young people that we have and the diversity and the range of disabilities, I'm not sure I could pinpoint a particular situation.  For example, if we had a young person who had dysregulated behaviours, but they had serious medical issues and disabilities that raised medical issues they would be in a disability, specific disability placement.  If it is functional and psychosocial, then yes, the Safe Care House would be     if it was the last resort     the most appropriate arrangement.  But each young person that would need a placement would be assessed as an individual.

MR CROWLEY:  Yes, I see.  So functional and psychosocial disability, a child who's presenting with the behaviours and the dysregulation that might make them eligible and necessary from Territory Families' viewpoint put them into a Secure Care, they could enter into the Safe Care House?

MS KERR:  If their behaviour is so extreme that their safety and their wellbeing     not their wellbeing but their life and safety is at risk, all others are at risk, then yes, that would be eligible.

MR CROWLEY:  Ms Kerr, one of the points that was raised by Mr Espie on behalf  
of NAAJA about the absence of a legislative framework at the moment is about the eligibility criteria not being precise, or not being within the legislation so that it can be appropriate oversight or application by, for example, a court body.  Is it, in your view, necessary that there be that type of legislative enshrining of the eligibility criteria?

MS KERR:  Yes, but in saying that there is the same oversights now as if they were in legislation.

MR CROWLEY:  Including court, or judicial officer oversight of who determines?

MS KERR:  Of those young people that are in there, yes.

MR CROWLEY:  But those young people, are you saying that because the children who've been there have been on a court order requiring them to be there as part of a condition of some other order that flows from the justice system?

MS KERR:  Two of them, yes, and the third one's on a treatment order.

MR CROWLEY:  So two of them have either been there as part of a suspended sentence or a bail order; is that the situation?

MS KERR:  Yes.

MR CROWLEY:  The other one is a health issue    

MS KERR:  Yes.

MR CROWLEY:      for a treatment order.

MS KERR:  Yes.

MR CROWLEY:  At the moment, the courts are able to include those arrangements or a condition as a bail order or a suspended sentence order, a condition for residence at the Safe House?

MS KERR:  Only if the young person meets the eligibility criteria and there are no other options.

MR CROWLEY:  And is that something that the Department of Territory Families informs the court about, about whether they meet the criteria?

MS KERR:  Yes.

MR CROWLEY:  Is it something that the Department has to provide evidence of, or to make a submission that it should be accepted that they meet that criteria?

 
MS KERR:  Well, the Children's Court or the Youth Court needs to accept that.  We regularly get recommendations or requests from the courts for young people to be placed in the Safe Care House, and it's more often that we make submissions why they shouldn't be, because they are not     they don't fit the eligibility criteria.  But going back to the question, I absolutely agree there needs to be a legislative framework.

MR CROWLEY:  Can I just take you to the framework at present as I understand it, and I want to ask you about this.  In your statement at paragraph 65, you've written that the:

The eligibility criteria is set out at page 5 of the Safe Care Framework .....

And you've referred to one of the annexures in your statement.

MS KERR:  Sorry, which statement?

MR CROWLEY:  This is the statement which is your 9 June 2021 statement.

MS KERR:  Yes, okay.

MR CROWLEY:  You have that?

MS KERR:  Yes.

MR CROWLEY:  I was referring you to paragraph 65 there about the eligibility criteria set out in the Safe Care Framework.

MS KERR:  Mm hmm.

MR CROWLEY:  That's the policy document which provides the rule for whether a child is eligible or not?

MS KERR:  Yes.

MR CROWLEY:  And that's what the Department applies in making that determination?

MS KERR:  Yes.

MR CROWLEY:  Now, can I ask you, please, if we could     we'll try and bring the document up on the screen.  I think it's at tab 66 of the tender bundle and the reference is NTT.0002.0007.0010.  Can you see that, Ms Kerr?

MS KERR:  Yes.

MR CROWLEY:  That's the framework document we're talking about?
 

MS KERR:  Yes.

MR CROWLEY:  A draft of this document is the document that was provided to NAAJA and the NT Legal Aid Commission in that process you spoke about earlier.

MS KERR:  Yes.

MR CROWLEY:  Could we go to page 5, please.  Page 5 at point 3 eligibility criteria, and could we just zoom in on that, thanks.  You'll see it has the details there of the criteria    

MS KERR:  Yes.

MR CROWLEY:      as to when the child is to be placed there.  It's limited to, and there's an age range, 12 to 17 under the protection order   

MS KERR:  Yes.

MR CROWLEY:  --- or a long or short term direction with responsibility vested in the Chief Executive Officer.  The second point is:

when there is a substantial risk of significant harm to the child .....

MS KERR:  Yes.

MR CROWLEY:  And the third point:

the risks to the child cannot be managed or reduced by any other available care option.

MS KERR:  Yes.

MR CROWLEY:  The further part of the policy provides:

In order for a placement to be approved, the following must be demonstrated:

(1) placement in Safe Care is in the child's best interests .....

(2)  All other placement options have been exhausted and there is no other available support or placement deemed adequate to protect the child from significant harm.

MS KERR:  Yes.

MR CROWLEY:  It's only in those circumstances then that the placement into the Safe Care House would be deemed acceptable?
 

MS KERR:  Yes.

MR CROWLEY:  Can I just raise something with you about that.  If we could leave that on the screen, but can I ask you about, in your statement, if you can go to paragraph 17 where you've referred to the criteria or when a child might be placed into the Safe Care House, and one of the things that you've said in there is:

..... young people with extremely complex needs and a demonstrated pattern of extremely aggressive, violent, or high risk behaviour which presents a significant harm to themselves or others.

MS KERR:  Yes.

MR CROWLEY:  If we look at the policy, though, the eligibility criteria on the framework document, it says "substantial risk of significant harm to the child".

MS KERR:  Yes.

MR CROWLEY:  It doesn't say "child or others".

MS KERR:  And if you read on, it talks about the demonstrated risks and the serious demonstrated risk they oppose to themselves through self harm, suicidal ideation and their vulnerability to abuse by others, and    

MR CROWLEY:  Sorry, Ms Kerr, where are you reading from now?

MS KERR:  17a.

MR CROWLEY:  Of your statement, 17a?

MS KERR:  Yes.

MR CROWLEY:  Yes, but what I'm drawing to your attention is that in the eligibility criteria in the policy document, it seems to say only the criteria is significant risk of harm to the child    

MS KERR:  Yes.

MR CROWLEY:      not significant risk of harm to others.

MS KERR:  Yes.  And then in the elaboration in the statement it talks about    

MR CROWLEY:  I'm not asking about the statement, though, Ms Kerr, I'm asking about the policy document.

MS KERR:  Yes, the policy document is accurate.
 

MR CROWLEY:  So the criteria is only if there's a significant risk of harm to the child, and those other points that we see at point 3 on the screen.

MS KERR:  Yes.

MR CROWLEY:  So "and others", is that wrong, that's not part of the eligibility criteria?

MS KERR:  Well, not in that document, no, and that    

MR CROWLEY:  But that's the policy document.

CHAIR:  Please, let Ms Kerr complete her answer, if you don't mind.

Yes, Ms Kerr.

MS KERR:  Thank you.  If there was only harm to others, they would not be eligible.

MR CROWLEY:  Okay.  Does it have to be then, are you saying, there has to be harm to the child as per what we see in the criteria on the screen at point 3 of the policy document.

MS KERR:  Yes.

MR CROWLEY:  And unless there's harm to themselves, if it's only "or others", they wouldn't qualify?

MS KERR:  No.

MR CROWLEY:  But they might if it's to themselves and others?

MS KERR:  Yes.

MR CROWLEY:  And if you look at your statement where it says in paragraph 17, "or others", that part's not right then?

MS KERR:  I'm not saying it's not right, but I'm not actually saying that's the eligibility criteria.  I think that's more of a holistic statement that's giving explanation to it, but I'm happy to accept that it is not right that someone would go to Safe Care if they pose a risk of harm to others.

MR CROWLEY:  I see.  Just on this issue about the eligibility criteria    

MS KERR:  Mm hmm.

MR CROWLEY:      would you accept this, Ms Kerr, this is one example perhaps of  
why enshrining in legislation the eligibility criteria is important so that there is precision and accountability as to what, in fact, are the things that have to be satisfied?

MS KERR:  Absolutely agree.

MR CROWLEY:  Can I ask you, while we've got the policy document on the screen, could we go then, please, to point 4 which commences on the same page that we have    

MS KERR:  Yes.

MR CROWLEY:      about the duration of the placement.

MS KERR:  Yes.

MR CROWLEY:  Now, again, the policy says that it will be a minimum three month minimum length of stay.

MS KERR:  Mmm hmm.

MR CROWLEY:  But is it the case that there's no prescribed position as to what would be the maximum limit on a stay?

MS KERR:  Yes.

MR CROWLEY:  And it would be a case by case basis, I take it?

MS KERR:  Yes.  Taking into account the least restrictive options for the young person, and I go back to my example.  We felt that that young person was well and truly ready to leave a couple of months before she felt she was ready to leave.  So when we say "duration", at that point in her journey, although she's in a residence that's used as a Secure Care facility, she wasn't in a Secure Care facility as such.  She was freely able to come and go.

MR CROWLEY:  Does that mean that the house by that stage is no longer treated as being the Safe House in a Secure Care sense?

MS KERR:  It very well could be for the other young person in there, and that was the case.

CHAIR:  Do finish your answer, Ms Kerr.

MS KERR:  Yes, so one young person can come and go, they can go into the kitchen and access implements, knives, cooking, boiling water, and essentially live freely within the house, and the other cannot go into the kitchen because there's high risk in her doing that.
 

MR CROWLEY:  I see.

MS KERR:  And the other one cannot freely leave the residence because of the risk of that.  So, yes, the residence can be locked and yes, there's security, and yes, there's CCTV.  However, the security aspect of it is around the individual young person, or the restrictions on living around the individual young person as opposed to everyone in the residence all the time.

MR CROWLEY:  In that example that you've just given and come back to, the young girl who's able to come and go, she would no longer meet the eligibility criteria in the policy?

MS KERR:  The eligibility criteria for entry?  No. However     and I think it was raised at some length by Dr Thompson     there has to be a transition plan to help ensure success on the other side.  The young person's not comfortable, ready or feeling confident enough and may have anxiety about leaving or feels that they need to stay to progress their education, finish a qualification, find the right placement, et cetera, then I think that's the intent of the program.  Yes, not eligible for Secure Care and yes, Secure Care wouldn't be necessary for her any longer.  That doesn't mean that she can't continue to reside in the residence.

MR CROWLEY:  And that's what I was exploring with you earlier.  The residence might then, in part, be seen as simply residential non Secure Care for that child?

MS KERR:  Yes.

MR CROWLEY:  Without any restraints or restrictions of the kind that would operate for Secure Care?

MS KERR:  Yes.

MR CROWLEY:  Just coming back to the policy document, please, and the duration of the placement, the 3 month minimum stay, are you able to help us with why three months was identified as being the minimum period?  And what was hoped to be achieved in the three months?

MS KERR:  So, in identifying that for, you know, the initial drafting and set up, we were largely informed by the work of Dr Thompson, and that's what was recommended in her work.

It's also informed, I think     well it was informed by the experience of the staff that have worked for decades in residential care and Secure Care who were developing and working on the model.

MR CROWLEY:  All right, and the purpose then for having that minimum period of three months    
 

MS KERR:  Mm hmm.

MR CROWLEY:      so we can accept circuit breaker for part of that is one of the purposes within that minimum stay, but then what else is the 3 month period designed to achieve as a minimum?

MS KERR:  When I say "circuit breaker", it's bringing a young person in who's had very extreme dangerous behaviours.  It's not a circuit breaker in the sense of the other models where there's 21 days and the hope is to, you know, bring young people in, detox, try and do a medical assessment and sort out medication and that.  It's the point where we can start doing a therapeutic intervention, and in less than three months, the advice and recommendations were that you really couldn't achieve anything.  So it involves stability, support, assessment and then a transition plan, which really starts pretty much when you're in.  There's got to be an absolute outcome, so it starts when they're in.  So it's really clearly explained that there are different milestones which are undertaken with the young person and the care team.  There will be levels of progress and exiting the Safe Care House, going to school et cetera.  Does that make sense, I think?

CHAIR:  It makes sense.  Mr Crowley, you may remember that Dr Webster seemed to give some support to a concept such as this at page 174 of the transcript on Day 2.

MR CROWLEY:  Can we    

CHAIR:  Mr Crowley, what other issues have we to explore here?  Because to some extent, one gets the feeling that we're going over ground that one way or another we've covered previously.

MR CROWLEY:  I'm not sure about that, Chair, but I will just have a look to see what else there was because there was quite a few other points that were specific to the evidence in the NT jurisdiction, and I was about to go to follow up the transition pathway with the witness.

CHAIR:  Is this something, since there have only been three children who have been in care in this facility, are we doing any more than looking at the published criteria, whether in a policy document or some other document?  I have to say, I'm just not sure what this is adding to what we've already explored.

MR CROWLEY:  Well, one thing that may assist with that, Chair, is that the Territory is looking at legislative introduction of what the model would be and at the moment with the policy materials that we have and the matters that we're exploring, these are matters that we would seek to identify about what may happen and what might be in the legislative model, and whether    

CHAIR:  I'm not sure how we can look at what might     do you mean that we're exploring what recommendations the Royal Commission may make for legislation; is  
that what you're saying?

MR CROWLEY:  No, what I'm saying Chair is that when we're considering the risk of violence, abuse, neglect for First Nations person with disability that might come into this facility, notwithstanding there's only been three children to date, it might in the future and that's an matter that is within the Terms of Reference of the Commission, that the Commission would have an interest in knowing about what's planned, and what the Territory is going to do in how it incorporates these things in its legislative model.

CHAIR:  I'm not sure that Ms Kerr is going to be able to help us with what's planned.  Ms Kerr is agreeing that legislation is a good idea   

MR CROWLEY:  Yes.

CHAIR:  --- I don't know that Ms Kerr will be drafting the legislation or giving instructions to parliamentary counsel to do so.  Am I right, Ms Kerr?

MS KERR:  Yes, sir.  We will certainly have an opinion and a perspective, but I won't be giving those instructions.

CHAIR:  Yes.

Well, Mr Crowley, if you can do this very briefly, because I would like today to finish at 4.  There are certain things that need to be done today, and I'd rather not have this continue beyond that time, so if you would bear that in mind, please, so that we can finish.

MR CROWLEY:  Yes, absolutely.

Just pardon me, Ms Kerr and Chair.

Could I just perhaps bring up the other document that was earlier tendered with your statement Ms Kerr and could we go, please, to the document NTT.0002.0007.0019.

MS KERR:  Is that the operations manual?

MR CROWLEY:  Yes.  As it says it's the operations manual for the Safe Care program in the house.  I wanted to ask you, as I mentioned, about the transition and what might be done about that, or how that is to operate.  This document may not be the complete answer, but I wanted to bring your attention to it, and perhaps from there if you could outline for us what is planned and how things are being done.  If we could go to page 14 of the document at point 12.  Point 12 of the Operation Manual which identifies therapeutic plans and says it's a core strategy to develop those individual therapeutic plans.  It has a note that the model is currently being developed.  Are you able to help us with that?  What is the model at the moment, what is being developed and what the idea is of the individual therapeutic plans, how  
that will look?

MS KERR:  Okay, so the individual therapeutic plan is quite different to the care plan that every young person in care has, which also includes a cultural care plan, and the behaviour support plan for the daily supports of behaviours for staff in the residence.  The individual therapeutic plan is the one that will come out of the work that we're doing with Australian Childhood Foundation, which is the further development of that model.  So this morning Dr Thompson talked about the various models, Sanctuary and various models that people have used, and Welltree.  We have felt that they're not sufficiently suitable for the Northern Territory, or our children, and perhaps not detailed enough.  So that's why we've gone to the Australian Centre for Excellence in terms of residential care and the Australian Childhood Foundation to develop a model, which in that will have individual therapeutic plans for young people.

MR CROWLEY:  Where is that at the moment?  That's in development?

MS KERR:  Yes    

MR CROWLEY:  The proposal has been prepared?

MS KERR:  The proposal's prepared, procurement has been finalised and it's in development and certainly parts have commenced.  The next induction program for staff which will be three weeks run with us, and ACF will be rolling out most of that work.

MR CROWLEY:  In terms of a transition or what we've heard about a step down from the Secure Care setting, is this plan intended to bridge both what commences in the facility and then what continues after leaving the Safe House?

MS KERR:  Look, it may very well, but the young person's care plan is the enduring document that goes with them.

MR CROWLEY:  As to what is the way in which that transition occurs at the moment, could you just tell us about that, what is the position at the moment as to taking that step down?

MS KERR:  Obviously the transition is mapped out with the young person and the care team, and I can talk in relation to two young people, who have transition plans which are really very, very different to each other, but one is continuing education, finalising getting her driver's licence.  She's gone into a foster care placement, she's gained employment, and she doesn't have any, in the clinical sense, any ongoing therapeutic supports.  She is     she has regular case management support, and support to do a range of social and other wellbeing activities, and that's the point where she's got to now.  Her plan actually extends out until she's 21 at this point.  So, her placement, there's already agreement for it to be extended with her foster carer well beyond 18.  She is     there's a plan for her coming into employment and she's  
finalising a Cert 3 in child care and carer services in a matter of weeks, so her plan is not an individual therapeutic plan, it's a transition to independent living plan.

MR CROWLEY:  Yes.

MS KERR:  It may be that for the other young person, her transition plan is really, really quite different because her family are interstate and our strong intention is for her to go to a placement near her family with all of the psychiatric, psychological, social and emotional supports she needs over there and her plan will be transferred with her to that jurisdiction.

MR CROWLEY:  Yes, thank you, Ms Kerr.  Can I just raise something following the point the Chair raised earlier about evidence that was given earlier about Dr Webster from Danila Dilba.  I'm not sure if you were across that evidence, but one of the points that he'd raised earlier in the week was about Danila Dilba wanting to be involved in the delivery of comprehensive primary healthcare to support children in the Safe Care House, and that Danila Dilba had been trying to engage or wanting to engage with the Department to be involved in that.  Is that something which you understand or have any knowledge about at the moment, what may be happening to incorporate that, or willingness to incorporate that?

MS KERR:  Yes, we have no intention of incorporating that as an extension of what they provide in detention to the Safe Care House.  All of the young people in Safe Care have their own paediatricians and their own medical and other plans.

MR CROWLEY:  Just pardon me, Chair.

CHAIR:  Yes.

MR CROWLEY:  Yes, thank you, Ms Kerr.  Those are the questions that I'll ask.

Chair, I will leave any time for further questions if, Chair, you have questions or the other Commissioners may have questions to complete the evidence of Ms Kerr.

CHAIR:  Yes, thank you Mr Crowley.

Commissioner Mason, do you have any questions of Ms Kerr?

QUESTIONS BY THE COMMISSION

COMMISSIONER MASON:  Yes, thank you, Chair, and thank you, Ms Kerr, for your evidence today and also, thank you for your service in the Northern Territory to children and families.

MS KERR:  Thank you.
 

COMMISSIONER MASON:  I was really, really interested in Dr Thompson's evidence this morning and about the work she did through the Churchill Foundation document that she created and a couple of things stood out for me.

As you know, we have a long history in this country in relation to children being removed from families and being in previously called welfare systems, now out of home care systems.

MS KERR:  Yes.

COMMISSIONER MASON:  And I was interested to see in the document that she had created as a result of the Fellowship, just looking at children with complex developmental trauma, and she says in her headnotes .

..... require high levels of care and support in order to heal .....

MS KERR:  Yes, Commissioner.

COMMISSIONER MASON:  And:

..... current systems in place are not able to effectively address the underlying trauma.

As you know, during my time at the NPY Women's Council, discussion of trauma has been quite a significant area of development, in terms of Aboriginal people from the Ngaanyatjarra Pitjantjatjara Yankunytjatjara region in understanding what that trauma means.  It's an English word that can't be translated into another language.

The other word that can't be translated into another language easily is the word "hope", and these two words really coincide, because what I understood around trauma, the antidote to trauma is hope.  So she goes in further    

CHAIR:  Commissioner Mason, do you have a question for Ms Kerr?

COMMISSIONER MASON:  Yes, I do.

CHAIR:  Okay, let's get there.

COMMISSIONER MASON:  Talking about transition out of the care system, and the outcomes that she was talking about in the Western Australian facility using an outcome of measuring hope for the child.

I was just interested, Ms Kerr, with all of the work you do there in out of home care in the Territory, around the language of using not just "trauma" because that's very well used in the system, but the word of "hope" in the way that it's described within the system, within the documents, within the different stages, multiple stages of a  
child and family interacting with the out of home care system; is that a term often used in the Territory in the context of out of home care and in particular we're talking about Secure Care?

MS KERR:  No, we tend to use "success", "wellbeing", "connection" and "belonging".  So, and "achieving"     so those are the sort of, the outcome words that we talk about, and it's very much the outcome measures that in terms of success for us is reconnection to family and culture and achieving success, and whether it's in the rapping or the music or the education, or being able to go and live back with family, or go and live with foster carers.  So, for us, it's about success and we have high expectations for our young people.  Often young people are, you know, if you allow people to say it, people will think they have no hope, or no chance for the future.  But we don't believe that, and I know we've only had three young people at the moment, but we're very, very chuffed and very pleased and proud of them with what they've achieved in the time we've had them.

COMMISSIONER MASON:  Your description of one of the young people coming out and her having control of that transition does in very many ways describe hope to me in that regard.  Thank you very much for your evidence today.

MS KERR:  Thank you, Commissioner.

CHAIR:  Thank you, Commissioner Mason.

Commissioner Galbally, do you have any questions of Ms Kerr?

COMMISSIONER GALBALLY:  Yes, thank you, Ms Kerr.  I think you estimated about 48 young people are in residential care out of the 962.  Anyway, something around that.  I wondered how many of those are First Nations.  And you don't need to answer that now, but I'd like to get that figure.  You may have it now.

MS KERR:  Okay.

COMMISSIONER GALBALLY:  Then secondly, how many of those young people end up in juvenile justice?  So, I'd like to know that.  I've got another area I'd like to ask questions about, too, but you might want to take those on notice, I don't know.

MS KERR:  I can.  Of the 48 young people in out of home care, about 40 of them would be Aboriginal children, in ITRC.  Of the total number of 962 children in out of home care, 87 per cent are Aboriginal.  We have obviously the highest number of      not "number"     but the highest percentage of total out of home care children as Aboriginal, but we also have the lowest proportion of our Aboriginal population in out of home care in the country.  In terms of young people in detention from out of home care, today, there's 51 young people in detention, nine have out of home care orders and of the 962 odd children in out of home care, only 1 per cent over the last three years have gone to detention.

 
COMMISSIONER GALBALLY:  Thank you.

MS KERR:  There's a fallacy that all children in detention are from out of home care and all out of home care have a trajectory to detention is just not the case.  We have as many kids going to university, or more, than we have going to detention.

COMMISSIONER GALBALLY:  Thank you.  Now you have responsibility for disability programs; you didn't add those to your list, but I presumed you had because you've got everything else.

MS KERR:  Not quite.  We have a community sector that has the Office of Disability, which is the strategic policy and universal programs.  What I have in my Families area is a disability development team that we've developed of fantastically qualified, passionate people who work with our children in out of home care to assess and support their development needs and to support them getting robust NDIS plans.

COMMISSIONER GALBALLY:  I was wanting to inquire about the numbers of young people under 18 who are in another form of out of home care, which is disability placement.  How many of those would be First Nations, too?

MS KERR:  Okay, well we have three young people in voluntary out of home care in the Territory.  All of the others that aren't with us, are with parents.

COMMISSIONER GALBALLY:  I meant people with intellectual disability, or cerebral palsy, or whatever.

MS KERR:  Yes, so in terms     I think in terms of children in out of home care with the agency, I would have to find the exact number, but my thinking is it's around 20, 25, however they're children that have been taken into care of the CEO, as opposed to we also coordinate and support families with children in voluntary out of home care where we pay for lodging, accommodation et cetera and the NDIS pays for services.

COMMISSIONER GALBALLY:  Thank you.

MS KERR:      and they are not in the care of the CEO.  Parental responsibilities remains with their parents.

COMMISSIONER GALBALLY:  Thank you.

CHAIR:  Since we're into statistics, how many Aboriginal children under the age of 18 are there in the Territory?

MS KERR:  About 60,000.

CHAIR:  The 962 would represent something like 1.4 per cent.
 

MS KERR:  One in 60.

CHAIR:  One in 60, yes.  How does that compare with other Aboriginal populations in the other states and territories?  You said this is the lowest.

MS KERR:  It's the lowest.

CHAIR:  Do you know what it is elsewhere?

MS KERR:  Not exactly.

CHAIR:  It's all right, we'll use our vast resources to find out.

MS KERR:  Commissioner, I can also tell you, we're the only jurisdiction that's had a reduction in children in out of home care for the last four years in a row.

CHAIR:  What about the last six years in a row?

MS KERR:  I've only been doing the reform for four years, Commissioner.  It was going up at a rate of 10 per cent every year.

CHAIR:  Very good.  All right, thank you.  Again, I assume that there are no questions.

MR CROWLEY:  Excuse me, Chair.  Sorry to interrupt, there was one matter that had been raised with me for counsel for the Territory.  I wanted to deal with that before Ms Kerr is excused.

CHAIR:  Yes, go ahead.

MR CROWLEY:  Ms Kerr, earlier today when Mr Espie gave some evidence, you would have heard him speak about what he understood was a case where a NAAJA client had not been able to get into the Safe House, but instead ended up in the detention centre.  You are familiar with that case, aren't you?

MS KERR:  Yes.

MR CROWLEY:  Now as I understand it, the position was that that was as part of a bail application.  There was a condition sought that the young person might be able to go to the Safe House, but this was an instance where he didn't meet the eligibility criteria, so he wasn't able to be accepted into the Safe House.

MS KERR:  Yes.

MR CROWLEY:  Yes, thank you.  Those are the only questions I had.  Thank you, Chair.
 

CHAIR:  Ms Chalmers, I take it you don't have any questions to put to Ms Kerr.

MS CHALMERS:  No, thank you, Chair.  That's correct, Chair.

CHAIR:  All right, thank you very much.  We seem to have some echoing of substantial proportions, but thank you very much Ms Kerr for coming to the Royal Commission and giving your evidence.  Also, for the detailed statement that you provided.  We appreciate the assistance that you have given.  Thank you.

MS KERR:  Thank you, Commissioners.

THE WITNESS WITHDREW

CHAIR:  Now Mr Crowley, perhaps you could let us know what happens tomorrow.  I should say that as I look out the window in Sydney, it looks a bit like Los Angeles in the mid 1970s presumably because they're burning off.  So, we've had earthquakes, attacks by helicopter, massive air pollution.  I wonder what else will happen.

MR CROWLEY:  Well, it's not on my schedule for tomorrow Chair to predict, but I can tell you what is planned for tomorrow.  We have tomorrow Catherine Liddle and Paul Gray, representatives from SNAICC and the Family Matters Campaign collectively to give some evidence.

CHAIR:  What will be their topic?

MR CROWLEY:  They will be speaking about a range of matters, including the need for data, models for community controlled or community delivered services and supports for families and children with disability in the out of home care system    

CHAIR:  Good.

MR CROWLEY:      and from a national perspective, from their respective positions as the peak body and the Family Matters Campaign representatives.  We will also have some prerecorded evidence which we were not able to get to earlier in the week, which was the case study of Maggie, which will be played to the Commission.

Following that Chair, there will then be some procedural matters of attending to the residual tender of materials and then, that will bring the proceedings to a close with the address from myself as counsel assisting and then, Chair, a final closing of this week's hearing by yourself.

CHAIR:  Good.  Very good.  Thank you very much, Mr Crowley.  We will then adjourn now and resume at 10 am Australian Eastern Standard Time tomorrow, which will be the sixth and final day of this Public Hearing 16.

HEARING ADJOURNED AT 3.49 PM UNTIL FRIDAY, 21 SEPTEMBER 2021 AT 10.00 AM AEST