web viewdr mcfarlane: certainly. crossover is the term that you have used here; it has got very many...

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TRANSCRIPT OF PROCEEDINGS

O/N H-787619

THE HONOURABLE M. WHITE AO, CommissionerMR M. GOODA, Commissioner

IN THE MATTER OF A ROYAL COMMISSION INTO THE CHILD PROTECTION AND YOUTH DETENTION SYSTEMS OF THE NORTHERN TERRITORY

ALICE SPRINGS

10.36 AM, FRIDAY, 2 JUNE 2017

Continued from 1.6.17

DAY 43

MR P.J. CALLAGHAN SC appears with MR P. MORRISSEY SC, MR T. McAVOY SC, MR B. DIGHTON, MS V. BOSNJAK, MR T. GOODWIN, MS S. McGEE and MS R. RODGER as Counsel AssistingMS S. BROWNHILL appears with MR C. JACOBI and MS A. SWINDLEY for the Northern Territory of AustraliaMR D. WOODROFFE appears with MR O’CONNELL for North Australian Aboriginal Justice AgencyMS F. GRAHAM appears for the Central Australian Aboriginal Legal Aid Service

.ROYAL COMMISSION 2.6.17 P-4308©Commonwealth of Australia

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MR GOODWIN: Commissioners, we continue to hear stories of those who have experienced the child protection system firsthand. We have two to hear from this morning. Yesterday we heard the first part of the story of CS and CT. CS and CT are grandparents who recall their experience when their newest granddaughter was removed immediately after birth. They have told us how they returned to the hospital the day after their granddaughter’s birth only to find the child was no longer there. Today we hear the second part of their personal story and the impact on them, as well as the baby’s siblings, of the removal of their granddaughter.

RECORDING PLAYED

MR GOODWIN: Commissioners, that was the story CS and CT. This morning’s second personal story is that of CR and CZ. CR and CZ share their perspectives on the removal of children and the impact of separation from kin and culture on Indigenous children and their families.

RECORDING PLAYED

MR GOODWIN: Thank you, Commissioners.

COMMISSIONER WHITE: Yes, Mr Goodwin.

MR GOODWIN: I believe Mr Morrissey will take the next panel of witnesses.

COMMISSIONER WHITE: Thank you.

MR MORRISSEY: Commissioners, the next segment is the cross-over issues panel, and I call Dr Katrina McFarlane – sorry – Dr Katherine McFarlane, Katrina Wong, and Karen Broadfoot. May I just note that Katrina Wong is proceeding by way of video link.

COMMISSIONER WHITE: Thank you. We will just wait until we get Ms Wong onto the screen that we’re all together. She was there for a passing moment and then slipped away. Ms Wong, you’re with us?

MS WONG: Hello.

COMMISSIONER WHITE: Good. So I am Commissioner White, and Commissioner Gooda is next to me. And we have a panel, Dr McFarlane and Ms Broadfoot. So I’m just going to administer the affirmation to each of you. So I will do you first, Ms Wong.

.ROYAL COMMISSION 2.6.17 P-4309 ©Commonwealth of Australia

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<KATRINA WONG, AFFIRMED [11.12 am]

<KATHERINE McFARLANE, AFFIRMED [11.12 am]

<KAREN BROADFOOT, AFFIRMED [11.12 am]

MR MORRISSEY: Thanks. Dr McFarlane, would you state your full name please.

DR McFARLANE: Katherine Lyn McFarlane.

MR MORRISSEY: And what is your occupation?

DR McFARLANE: I’m a senior lecturer at the university in Bathurst, which is Charles Sturt University.

MR MORRISSEY: Thank you. And did you prepare a witness statement for the purpose of this proceeding with two annexures?

DR McFARLANE: I have.

MR MORRISSEY: And have you had the chance to read that statement for the purpose of the proceeding?

DR McFARLANE: I have.

MR MORRISSEY: Are the contents true and correct?

DR McFARLANE: They are.

MR MORRISSEY: I tender that statement.

COMMISSIONER WHITE: Exhibit 489.

EXHIBIT #489 STATEMENT OF DR KATHERINE LYN MCFARLANE

MR MORRISSEY: Ms Wong, what’s your – sorry. Pardon me. What’s your full name?

MS WONG: Katrina Wong.

MR MORRISSEY: What’s your occupation?

.ROYAL COMMISSION 2.6.17 P-4310 WONG/McFARLANE/BROADFOOT ©Commonwealth of Australia

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MS WONG: I’m a senior solicitor of the children’s civil law service of Legal Aid in New South Wales.

MR MORRISSEY: Did you prepare a statement for this Royal Commission?

MS WONG: Yes. I did.

MR MORRISSEY: Did that have five annexures annexed thereto?

MS WONG: Yes. It did.

MR MORRISSEY: And have you had a chance to read that statement for the purpose of the proceeding.

MS WONG: Yes. I have.

MR MORRISSEY: And are the contents true and correct?

MS WONG: They are.

MR MORRISSEY: I tender that statement.


EXHIBIT #490 STATEMENT OF KATRINA WONG

MR MORRISSEY: Finally, Ms Broadfoot, would you state your full name, please.

MS BROADFOOT: Karen Marianne Broadfoot.

MR MORRISSEY: And what’s your occupation?

MS BROADFOOT: I’m the acting general manager for Youth Justice.

MR MORRISSEY: And did you prepare a statement with 15 annexures for the purpose of this Commission?

MS BROADFOOT: I did.

MR MORRISSEY: And have you had a chance to look at that statement recently?

MS BROADFOOT: I have.

MR MORRISSEY: And are the contents of that statement true and correct?


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MS BROADFOOT: Yes.

MR MORRISSEY: Commissioners, I tender that statement and the annexures as well.


EXHIBIT #491 STATEMENT OF KAREN MARIANNE BROADFOOT

MR MORRISSEY: Very grateful. So the first question I will put – I will ask for a response from each of the panel members in due course, but perhaps starting with Dr McFarlane, if we could, is – could you just please explain the nature of cross-over and just explain what cross-over is and what the nature of cross-over is between the child protection and youth justice systems.

DR McFARLANE: Certainly. Crossover is the term that you have used here; it has got very many different names. I call care-criminalisation. Others refer to a care-to-crime pathway or pipeline or nexus. It’s all used interchangeably. It essentially means exactly the same thing, which is the progress by which – or the processes by which children who are in state care in one form or another, either with foster care, with kinship care, with relatives, or in institutional care such as group homes or what you know as residential care, how they end up involved in the criminal justice system. And my research and the arguments indicate that that progression is – follows very similar lines and that it is an overrepresentation of children from this small background that end up involved in the justice system.

MR MORRISSEY: Alright. Thank you. Can we say what – is it possible to say, Dr McFarlane, perhaps, what’s the approximate size of the cohort of crossover children.

DR McFARLANE: It’s very difficult to quantify mainly because governments don’t collect the statistics specifically on that. So information that is public available tends to mix the children that are in State care with those who have an involvement and background with the child protection system, which are very different things. Child protection obviously is a lot bigger. Not every child that has had child protection notifications actually ends up being removed from family and placed in care. It also depends on – in New South Wales, we include children in kinship care, those placed with relatives, in the definition of out-of-home care. In some other jurisdictions – in most other jurisdictions – they don’t, so the numbers differ.

However, in New South Wales and in my experience, children enter the justice system at vastly disproportionate rates. In my study, looking at case files before the New South Wales Children’s Court, 50 per cent of the children who appeared before the court had been in the care system at some stage. Many of them were still in there. More broadly it ranges from about 25 to about a third to half of the jail, adult


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jails and juvenile justice populations are made up of people who have been through the care system in some form.

MR MORRISSEY: Ms Wong, you have got a very much hands-on involvement in the field. Can you say something about the application of those general principles in your field?

MS WONG: Yes. I can definitely concur with Dr McFarlane’s research on the ground in terms of our experience. Legal Aid has a number of specialist legal services targeted to young people. One of them is the children’s legal service that provides specialist criminal law representation for young people that appear before the children’s court. And then there is my service, the children’s civil law service, that was set up in response to the type of young people that we talk about and refer to as cross-over young people.

From Legal Aid’s experience, we conducted some research into our high service users. So they would be the frequent flyers of people who utilise Legal Aid services, and we found that 80 per cent of those users of Legal Aid services were young people under the age of 19. And, worryingly, almost all of them had some time, had spent some time, in juvenile detention, and almost half of them had spent – had been in out-of-home care. What it meant was that we, as an organisation, decided that there had to be a better response to this group of young people.

An issue that – or observation that Legal Aid had made for quite a long period of time was that there was a large number of young people appearing before the Children’s Court in quite – for quite minor criminal offences. And these were young people that resided in residential out-of-home care families. There seemed to be a more frequent interaction in the criminal justice system for these children in residential care and there was certainly an interaction in terms of the challenging behaviours that they exhibited and the responses from the residential care workers and their use of police as a behaviour management tool, and we identified that that was a key pathway for young people in the care and protection system into the criminal justice system.

And of course this was then overlaid with other intricacies such as bail and remand and apprehended violence orders and breaches of that. And so what then happened was you would have a constant roundabout of the young person appearing before the criminal justice system, placement breakdowns, which meant they had to move from one residential care facility to another, disengagement from school, and so forth.

So that was what we identified and our service was then set up to provide a sort of wraparound, holistic service for this group of young people, and I would say a significant proportion of clients in my service are crossover young people. A lot of the work that we do is providing advocacy around navigating through systems, advocating around administrative decisions that are made by either community services or by the residential care agencies that are looking after young people. It also providing that wraparound legal service for young people who would have


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multiple legal issues but don’t identify that they have legal issues and they impact on them further down the track and they even accelerate their entry back into the criminal justice system.

We also have a social worker and a youth worker attached to our team, and it’s a recognition that these young people who are the crossover young people have complex needs, and they need – no legal remedy or service is able to adequately address those issues without also having some sort of case management from a social work perspective. So in that regard, we have been working around some systemic change, and that involves looking at protocols, using a collaborative approach of police and community services to draft guidelines around when not to use police, with a real focus around diverting young people away from the criminal justice system who are in residential care.

MR MORRISSEY: Alright. Could I just intervene for one moment there, please. We are going to come back and ask for some detail about that protocol, but just the term that you used earlier has occurred in this Commission several times, but I wonder if you could explain it. The term wraparound care: what do you mean by that?

MS WONG: Yes. I guess when we talk about wraparound legal service, if you think of a typical legal service, it’s usually – you represent a young person in court, that’s the appearance, and that’s it. What this means is we are able to have the luxury of actually assisting a young person for a longer period of time. Usually when a young person gets referred to your services around one legal issue, but then we do a legal health check to ensure that we cover off all the legal issues that the young person might have, and they might not be able to identify what those legal issues are.

And we have developed a tool that we use to kind of identify other issues that they may not consider to be legal. And the idea is that we deal with them all in the one time, while the young person is engaged with other legal services and we can also refer them to our social worker and youth worker to address all the other welfare needs, which might include housing, it might include Centrelink, it might include linking to mental health services and Drug and Alcohol Services.

MR MORRISSEY: You mentioned also - - -

COMMISSIONER WHITE: Can I just – Mr Morrissey - - -

MR MORRISSEY: Sorry. Yes.

COMMISSIONER WHITE: Can I just clarify something.

MR MORRISSEY: Yes. Of course.


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COMMISSIONER WHITE: Your service relates just to the civil side of the legal system, doesn’t it, Ms Wong?

MS WONG: That’s right, but we have – we work quite strongly in partnership with our criminal law partners. So our partners are our Specialist Children’s Legal Service, who are the criminal lawyers who represent young people; the Aboriginal Legal Service, who represent young people, Aboriginal young people, in the criminal justice system; and also Shopfront Youth Legal Centre, which works with young people at risk of homelessness in the central Sydney region.

COMMISSIONER WHITE: And is it the case that young people will often be unaware that they have unmet legal obligations on the civil side, which is why the legal - - -

MS WONG: Absolutely.

COMMISSIONER WHITE: - - - check works really quite well in unearthing some things that are outstanding.

MS WONG: Absolutely. It’s even difficult, I think, for legal practitioners to understand the civil law needs of young people, and we also couch it in terms of these are legal issues that affect your day-to-day life, but unfortunately for a lot of young people it’s part and parcel of their narrative day-to-day, so they don’t see it as having a legal component or that their rights are being infringed.

So in a young person who is in the care of the minister and in residential care, there could be issues in terms of the way they’re being managed in terms of behaviour, their use of police, whether they’re participating in case conferences, whether they are getting contact, whether they are getting adequate after care support as they transition from care into after-care. So there’s all sorts of things there where a young person may not feel that there’s a legal issue, because in their mind what a legal issue is is there’s police out, they have got a warrant out for their arrest, and they’re being charged with a criminal offence, and that’s their experience of what they consider legal.

So that gives us an opportunity to work with the criminal law at the time where they have got current matters on foot while we also then work around all the other issues that often will then lead to more stability. So a lot of the times there might have been disengagement or a break down in relationship between the young person and the residential care provider. It’s around getting more services and access to services from community services and while that is all happening we find that there is better outcomes for the young person long-term.

Even if that means creating greater trust with the agencies – because we find with a lot of young people who are in care, they have such a high level of distrust with the statutory agency, and that becomes or creates incredible barrier for them to be able to work with any case management support, if there is some available for the young


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person. And so it really requires quite a flexible approach and quite an intensive sort of advocacy service that utilises both legal and social work support to get a more holistic outcome for that young person.

MR MORRISSEY: I think we will come back to – I’m sorry. Yes, your Honour.

COMMISSIONER WHITE: .....

MR MORRISSEY: So there are a number of issues you have raised there which we will come back to in the specific side of things, but could I just turn to Ms Broad foot. So, now, just – again, just remaining briefly at the general level, you have heard what is said about the existence of, and the nature of, the crossover problem. It seems obvious from your statement that NT government is recognising this as an issue and is endeavouring to deal with it. Do you have a different view of the nature of the problem, or do you broadly concur with the two previous witnesses that that is a problem and that it needs to be dealt with?

MS BROADFOOT: I certainly do concur with the statements that have been made. I think also though there is an emphasis that needs to be drawn from our agency around children that have actually had contact with the child protection system. So I think there is certainly that need in the out-of-home care area. But there are a lot of young people, in my experience, that have had contact with broader child protection system, then go on to youth detention.

MR MORRISSEY: Just could – I have got some specific questions about data gathering. Before I turn to those, could I just ask you, given what has been said from the New South Wales background, are there any specific Northern Territory needs that you think put a particular cast on the way you have to deal with the problem?

MS BROADFOOT: With the way we need to deal with the problem in out-of-home care?

MR MORRISSEY: Yes. Yes.

MS BROADFOOT: I think that there are a lot of difficulties in that the predominant one in which we place young people is in the larger centres. So we have young people coming in off of other communities and out of other areas that end up being placed in Darwin, Alice Springs, Katherine, that contribute potentially to the separation with families and from their communities and, therefore, contributes potentially to ongoing behaviours.

MR MORRISSEY: Alright. Well, thank you for that. Could I just ask that we go to paragraph 126 of your statement. I’m just going to ask you some questions about data, if I may. These will be specific to you and perhaps not to the other two, then we will move back to matters of general – at paragraph 126 of your statement, you note that you do not have any statistical data showing the number or proportion of


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children in out-of-home care who have been in detention over the last 10 years. Can you say why is that; that you don’t have such statistical data?

MS BROADFOOT: At the moment my understanding is that there’s discussions happening between the department of – the Attorney-General department and Territory Families around the way in which that data could be sourced. We have different separate systems. We have the child protection CCIS system that actually covers up on all data related to children in care. And then there’s a separate system, the IOMS system, that looks at young people that have been in detention. Those systems don’t talk to each other at all.

MR MORRISSEY: Alright. I just wonder if we could have up on the screen LW10. This is an annexure to Ms Wharburton’s affidavit, Commissioners. That is going to be tendered this afternoon, so I won’t tender it separately now; just flag it if I could. What is coming up now is a reportable incident form that has been attached to Ms Wharburton. I will just get you to have a look at that as soon as it can be brought up. I will just explain to you though while we are waiting for it that it appears to be – on that list you will see it’s a reportable incident of a high level when a child is charged. So I think we might need to go to the following page. Yes. So you will see there’s a heading. If we could just scroll down a tiny bit from that, please. You will see Illegal, Threatening, or Highly Concerning Behaviour heading. And there are three matters that have to be reported to the central intake team.

MS BROADFOOT: This is very small on my screen.

MR MORRISSEY: I could request those driving the machinery here if we could possibly expand that. Some are finding it difficult to see. I know – it means Ms Wong being shrunk in - - -

MS BROADFOOT: No. I can see alright. Thank you.

MR MORRISSEY: Thank you. Okay. Well, here:

A child in care who is suspected, charged, or convicted of a criminal offence that may result in a custodial sentence –

that has to be reported to central intake; is that correct?

MS BROADFOOT: Sorry. Can you repeat? I can’t actually see it on the screen, so - - -

MR MORRISSEY: You can’t see? Do you see the heading Illegal or Threatening or Highly Concerning Behaviour? Could we just provide a hard copy to the witness?

COMMISSIONER WHITE: Yes.

MS BROADFOOT: That would be wonderful. Thank you. Thank you very much.


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MR MORRISSEY: So you see that is – it’s reportable. In fact, it must be reported with a degree of level one urgency to the central intake team. Do you see that?

MS BROADFOOT: Correct. Yes.

MR MORRISSEY: It doesn’t appear that’s recorded in any centralised system apart from the youth justice information system that we have heard about, the IOMS system; is that correct, as far as you understand it?

MS BROADFOOT: So there’s a number of things here that, when you are saying reporting to – report to CIT, that’s the centre intake team. So that’s our body.

MR MORRISSEY: Yes. Correct.

MS BROADFOOT: So there would certainly be recording of that.

MR MORRISSEY: Well, there is – I think where I’m going with this is that there doesn’t seem to be any collating of it. You have indicated there’s no statistical data showing the number or proportion of children coming in and out. That’s one source of such data but it doesn’t seem as if there is any collating that goes on of that data. Can you comment on that?

MS BROADFOOT: There’s an ability through CCIS – because there’s reported to central intake, any report through to central intake is a notification and therefore can be reported against. However, this is an internal document that relates to behaviours that are being demonstrated. It doesn’t automatically result in any connection; it’s just a system.

MR MORRISSEY: Alright. Well, could I ask perhaps the more general question. Do you agree, in the absence of the – you have mentioned at paragraph 126 you don’t have the statistical data showing the number or proportion of children who have been in detention who are also in out-of-home care. In the absence of that fundamental data, can you indicate how is it that you hope to prepare an appropriate response?

MS BROADFOOT: I think that we generally accept that young people in out-of-home care are at greater risk of entering the youth justice system and that is the basis on which we were preparing a response.

MR MORRISSEY: You have referred to some discussions that are ongoing, is it the intention of the department and of the review to rectify this apparent gap in the data?

MS BROADFOOT: I believe that there are discussions happening to how that can occur but I’m not privy to them at this point.

MR MORRISSEY: No. It’s just a problem – it’s not a question of putting you on the spot about it, but perhaps you can assist. At paragraph 133 of your statement,


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you noted that there’s no plans currently to improve ..... and child information systems. Sorry. Youth justice and child protection information systems so that this data gap can be remedied, even though we – as we understand it, IOMS is about to be replaced and the CCIS system is - - -

MS BROADFOOT: So CCIS is certainly at the end of its life and is about to be replaced. So I think when we are talking about what we can do into the future with the coming together of youth justice and child protection, we’re certainly looking at how into the future we can develop other systems that will encapture all of our work. Right now, though, that’s not something that can be implemented quickly. So we still need to look at how we can exchange information within the existing systems and there are challenges with that.

MR MORRISSEY: Alright. Well, I understand that’s – you are imposing what you would say is a realistic caveat. But you would agree that really is a need to improve data collection.

MS BROADFOOT: Absolutely.

MR MORRISSEY: And that would help you to assess with some degree of effectiveness, or the effectiveness of any of the interventions are proposed.

MS BROADFOOT: Yes. Absolutely.

MR MORRISSEY: I mean, it sounds like a very general statement to say improved data collection and collation is always desirable, but specifically in this instance it really is desirable.

MS BROADFOOT: Certainly.

MR MORRISSEY: Thank you. Could we just turn back now to the issue of crossover, now, and the more general side of it. So that’s data against which will augment future reforms. But could I just ask now – we return to the issue of – and again at a general level – what’s the importance and what are the benefits of looking over the crossover children better than they currently are? Perhaps, again, starting with Dr McFarlane, why is it important that the child protection and youth justice systems and detention systems deal effectively with the children who are crossing over between those systems?

DR McFARLANE: I think the answer is the fact that they are already, in my experience, in the juvenile detention systems in every State and Territory across Australia, but they also make up a sizeable proportion of the adult prisons. And so if you’re interested in stopping or reducing the likelihood of ongoing involvement with the criminal justice system and increasing the safety of victims in the general community, it’s a very small population that have been in out of home care. It would seem a logical place to start.


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The impacts are quite considerable: from my research and other research that has been conducted, we know that children who have been in the care system are more likely to become involved earlier. So much younger, as soon as you can legally charge someone; that’s when they enter it. And they have involvement with police at much younger ages before then. So in my research, nine, 10, eight years old for getting caught up in the justice system. They are also more likely to progress more deeply. So they tend to be bail refused, often allegedly for their own safety because there’s no other placements. So they end up being stuck in remand and detention for longer. They then more are susceptible to being abused or to abusing others while in detention.

But also they are less likely to be diverted to diversionary options and less likely to receive more lenient sentences. So basically every measure of disadvantage and enmeshment and entanglement with the justice system you can get – it’s these kids. Once they’re in that, they go on to be, generally speaking, persistent and long term serious offenders. So if you’re looking at your top criminals in any jurisdiction, the people who have committed atrocities that, when you think of the worst criminals, they come to mind, I can guarantee you that they will be out-of-home care children.

MR MORRISSEY: Ms Wong, can I take you to a couple of specifics; you mentioned these briefly in your introductory remarks. But following from what Dr McFarlane said there, I want to take you to a specific example of a child in care and some of the complexities that beset them through being in care. One of them is – well, two I would ask for your comment on, please. The first one is the impact of intervention orders, as they’re called in Victoria, apprehended violence orders in New South Wales, and each jurisdiction has its own name for such thing. What do you see happening in relation to such orders in the out-of-home care space and, secondly, and in an allied way, what do you see in terms of the criminalisation of domestic conflict in those homes thus bringing the children into contact with the criminal justice system more than other children would be?

MS WONG: Okay. I might answer them both together because they have a bit of cross-over.

MR MORRISSEY: Yes. Yes.

MS WONG: So the impact of the domestic violences legislation has been quite significant in New South Wales. So currently the definition of a domestic relationship in the New South Wales legislation defines a paid carer and someone they’re looking after in a residential setting as being in a domestic relationship. Now, as we are all aware, across the States and territories there has been a really proactive approach towards domestic violence, as we should have.

But unfortunately, because young people in a residential out-of-home care setting are caught up in the definition of a domestic relationship, what that means is that where there is an incident that occurs in the residential home, and this can usually occur from a dispute that might happen from a very small disagreement between two young


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people residing together or between a paid carer and a young person and escalates and there might be damage to property, that charge of damage to property is considered a domestic violence offence.

What that means is police will then usually take out an apprehended violence order on behalf of the protected person, who in this case would be the paid carer, and the young person then is the defendant in those proceedings. What there then places is this incredible power imbalance for the young person, who is meant to be living in this group home as their home, like, they are living there in their home and the worker is in their space and they have got an AVO out against them.

And that creates an incredible power imbalance where we have seen paid carers use, to try and control or manage behaviour a bit better with a young person, and of course we know that that doesn’t work. And what usually happens is when you have quite restrictive AVO conditions in place for the young person, the young person then comes before the court again, or gets – or rather the agency then calls the police for breaches of that AVO and that then becomes a criminal offence and you see the cycle just going round and round of that young person in the criminal justice system. So you will see that - - -

MR MORRISSEY: Could I ask – sorry. Go ahead. Go on. I have got a further question.

MS WONG: Yes. No. Keep going.

MR MORRISSEY: Alright. Well, sorry. Yes. So I just wanted to interpose one issue there. Stepping outside of the particular orders that are put in place and the charges that arise, what effects do you see it having in terms of relations between the young people who are in the homes and subject to such orders and police, more generally speaking. In other words, police motivated to try to assist, as best they can, nevertheless are projected into a prickly relationship with the young person. What are you seeing as the effects of that?

MS WONG: Well, it has a number of effects. So one of them is – I will address the perception that police have in relation to the residential care agencies, and that comes from our direct experience with our protocol in New South Wales, particularly in the western Sydney region. Police were quite frustrated to having to come these – to all the residential homes for what they consider quite minor incidents where the carers or the paid workers would call police.

And what it ended up having was a build-up, I guess, of resentment from some police of unnecessary diversion of their resources having to come out to the residential care settings for what would be considered a domestic situation, really. It was something that they felt that the residential workers could better deal with in the therapeutic way within the group home. So there was that fractured relationship because when you then found was they were quite resentful and perhaps did not see residential care homes in a particularly favourable light.


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What it also meant was that they were exposed to young people unnecessarily and with police who may not have the particular training or informed background around complex trauma and understanding that a lot of these behaviours arise as a result of young people’s experience with trauma, you then get into this, I guess, negative stereo typing of young people generally and then particularly young people in residential care.

So I guess it’s something that Dr McFarlane talks about as well in all her literature. But it’s a criminalisation of behaviour for young people who have been exposed to trauma. So they go from being troubled kids and we have to look after them to being the young people with troublesome behaviours that we need to then call police for. And really it’s not about that at all. You are looking at the wrong sort of approach around responding to those behaviours, and what we have been trying to do here in New South Wales is look at better ways of responding to those behaviours in what we call a trauma-informed response.

And there has been a lot of work done by community services and the residential care sector around looking at therapeutic care frameworks, because it’s recognising that a lot of these behaviours are not bad behaviours in terms of criminal behaviours. They’re actually behaviours that come out of complex trauma and there’s a better and alternative way, a more appropriate way in responding to that.

But certainly, the impact of the AVOs is significant for the young person. I mean, apart from damaging their relationship with the carers and we know the literature around multiple placement breakdowns and, you know, poor attachment. I mean, how is a young person who is placed in a home that they have no say in, how are they going to feel around having an AVO against them, against the paid carers.

We had one particular young person who prior to being in residential care had no contact with police, and the minute he was placed in this residential care setting, there were around, I think, 65 call outs to police, and there was an AVO out against him by every worker that worked in that residential care home. So it just makes it an untenable situation for that young person to even reside in that home or consider it a home.

MR MORRISSEY: Yes. May I just intervene there for one moment. Because we have some time pressures, Commissioner, there are some other things I would like to do differently in sequence, but because of the time pressure I want to jump to an implementation issue.


MR MORRISSEY: And in particular I understand that there’s an interest in the New South Wales protocol. So, Ms Wong, again returning to you, I will just ask you very briefly to say something about the protocol, and then I’m going to seek comment from each of the other panel members on the pros and cons of that as a model. At KW5, annexed to your statement, you have attached a copy of the joint


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New South Wales protocol. And would you just speak briefly to that and just indicate what the protocol is, how it is currently operating. Try to keep it as concise as possible, just for time reasons. But it would assist the Commissioners if you could do that.

MS WONG: Yes.

MR MORRISSEY: Explain how it is working – what it is; how it is working.

MS WONG: Yes. So the joint protocol was essentially a response to the over representation of young people in care in the criminal justice system, and it particularly looked at incidents where there was unnecessary use of police as a form of behaviour management. So what the protocol is, is a document that has been signed off by New South Wales police, by community services, by the association for child welfare agencies.

And it provides a set of guiding principles for the residential care workers and agencies around what they would do if they were presented with challenging behaviours of the young person and when they should call police. And then, conversely, once police are called, some guidelines for police in terms of “Okay. This is a young person out-of-home care, we know they have backgrounds of complex trauma, we might look at other options rather than charging the young person with a focus on diversion.”

MR MORRISSEY: Just on that, could I interrupt for one second, quickly. Police have a discretion in that situation, do they not?

MS WONG: They do generally within current legislation within New South Wales.

MR MORRISSEY: Yes. So it’s really a cultural issue as to whether that discretion is exercised and your training is designed to encourage police to take a broader view of the discretion that they have.

MS WONG: It is. And the power of having a protocol that has been signed off by the assistant Commissioner of Police is that – it’s sending a clear message to police that you can actually exercise discretion for this very small group of vulnerable people in the care system, and it’s asking them to turn their minds to it.

MR MORRISSEY: Just briefly tell us how is it working where it has been – I understand it takes a while to roll these things out, but what’s happening on the ground at the moment?

MS WONG: It does, and I should note that community services are the agency that is implementing the protocol.

MR MORRISSEY: Yes.


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MS WONG: We are seeing some of the impacts on the ground in terms of having it as a useful tool to advocate on behalf of young people. And certainly, you know, that sort of information around the protocol is slowly trickling down from management down to day-to-day staff. But what we are finding is that, with certain agencies that we might have seen a high incidence of reports to police, that we have been able to refer to the protocol and get better practice.

So what we are seeing is that not only are agencies looking to changing some of their policies and practices, which is excellent, because that means there’s more of a systemic change across the organisation, but that there is a bit of a cultural change. So a lot of them would have had very, very rigid policies around, “Well, we need to call police if the young person hasn’t returned home, you know, by the house curfew,” or, “We need to call police if they have damaged property straightaway.” So there has definitely been leniency around those policies which has seen an automatic reduction in the callouts to police.

MR MORRISSEY: Alright. Ms Wong, I just – I’m sorry. I just have to stop you a second. I really would like to seek Dr McFarlane’s comment upon that, if I could now. Then, of course, I will turn to Ms Broadfoot and ask you how that could work in the Northern Territory context.

DR McFARLANE: Thank you. I think that I have a more cynical approach to Katrina in respect of the usefulness of the protocol. It isn’t new. What’s new about it is that it has been generated from the ground up, from agencies who are actually involved with children and young people, especially in residential care. It’s new in that it has Legal Aid’s very strong involvement and that it has also been very much ground root police station, rather than being imposed from the top down. But what it is trying to do is basically just best practice. So I don’t think it’s helpful to regard it as a radical departure and a panacea for perhaps what the Territory might do. It’s a start only.

To support that, there are a few key points, if I may. And one of them, I think, that is very important is that we have been focusing on the behaviour of the children and the young people and the criminalisation. And while that is very important and Katrina is absolutely correct that there are incidents whereby minor things that would not lead to police involvement if it occurred in a child’s own home are leading to repeated and continual involvement and arrest and detention of children in the residential system, I think there’s another side of it, which is that many of the children in my research were committing offences, care-related offences, but were often committing those in relation to abuse which they had suffered in the care environment.

So 24 per cent of my study, almost a quarter of my cohort of kids that had been appearing before the Children’s Court and who were in out-of-home care, had been abused while in car. And the standard of abuse wasn’t, you know, some emotional abuse or even a minor slap, it was – had to be documented by the Department of Community Services and the kind of things it included was rape of children, it was


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broken bones, it was assault by carers and/or other children. So I would just like to make it clear that the focus on the criminalising of minor incidents and behaviour by children is one important part. But it is not the whole of what is needed.

MR MORRISSEY: I think – can I just interpose there. I think you have made the comment in your statement that one should not necessarily regard placement in out-of-home care as a protective factor merely because they were so placed. Is that the context in which you raise – make that comment?

DR McFARLANE: That’s absolutely right. And there are a number of statements and evidence that has been given to the Commission which I think is very helpful. It talks about how care can be a protective factor. I have actually really seen very few instances where the care system has operated as intended.

MR MORRISSEY: Can I just – may I interpose there. Sorry. That’s – and you have made comments to that effect. But there’s another issue. Commissioners, in a spectacularly helpful statement, Ms Broadfoot annexed some draft policies that are very helpful and have allowed – they have been shown to each of the other witnesses and have generated discussions ..... very grateful for that being done. I just wanted to ask a question arising from that very helpful stance. You have had the chance to look at some of the policies and you noted, amongst other things, that one of the approaches that the department was considering was the development of a tool to assess the criminogenic needs of the children. Now, you’re speaking of a focus more upon the institutions themselves and the effects that they have.

DR McFARLANE: Yes.

MR MORRISSEY: But could you say a little bit to the Commissioners about that distinction of approach.

DR McFARLANE: Certainly. As I said, while the criminalisation and the things that Katrina has been talking about are crucial and would divert a significant number of young people from the detention system - - -

COMMISSIONER WHITE: That would be from the low end of offending, wouldn’t it?

DR McFARLANE: That’s correct.


DR McFARLANE: That’s correct. A lot of malicious damage, sort of, minor break and enters, assaults, that kind of thing – assaults being swearing and verbal assaults, not physical; the minor end. But what is also significant is the fact that the placements into which many of the children are put are inherently unsafe. And they can be youth refuges, other residential care facilities, but not just residential. Abuse in foster care, abuse in family, in kinship care, is also a problem.


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I note in particular in relation to a statement of my colleague that there’s a requirement when a child is in detention and also in out-of-home care that if there’s an abuse allegation that comes to the attention, that that has to be immediately reported and an investigation conducted. And to that extent I would be very interested as to how many of the children that were involved in incidents in Don Dale that led to the establishment of this Commission – many of those children were in out-of-home care, at least two of them have made public statements to that effect.

It would be very interesting to see how many reports by Territory Families in the Territory actually received any reports or conducted any investigations into the allegations of abuse that were subsequently made public. Because if the policies and protocols that exist which require the Department, says they must report, they must investigate, regardless of the identity of the alleged perpetrator, it would be interesting to see whether that actually led to many investigations, at least for those children that had come from the care backgrounds.

MR MORRISSEY: May I interpose there and just – I would like to turn to Ms Broadfoot on a number of topics there. First of all, could I just get you to respond to what you have just heard there, by way of protocol, and – which has been advanced by Ms Wong. Do you see a place for that within the framework that you’re seeking to develop? And I appreciate that what you’re doing at the moment is drafting policies, they’re not finalised, there is more work to be done. You have made that point clearly, and I am happy for that to be conceded here. But what do you have to say about the protocol that has been raised by Ms Wong? Do you see a place for it, how might it be implemented, and what are your thoughts about it.

MS BROADFOOT: Yes. I absolutely do see a place for it. We have already had some conversations with police; it was identified in a similar way to which Ms Wong referred that there were instances in residential care in particular where police would be called for relatively minor incidents. So I think there absolutely is a place for something like that. If there’s a place for being clear with carers about when it is appropriate for police to be called and other ways in which things can be managed. So there is conversations happening at the moment around an MOU with police, and a protocol similar to this would be very useful.

MR MORRISSEY: Alright. Good. Thanks. Just more generally, you have noted at paragraph 11 of your statement in these terms:

Territory Families recognises that not enough has been done previously with the specific purpose of identifying and addressing underlying criminogenic risk factors in the young people who come into contact with the child protection system, with the goal of reducing their risk of future contact with the youth justice system.

Now, a couple of questions there. Can I just ask you: why is it that for so long not enough has been done? I understand that now something is being done, and it’s – there is a review.


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MR MORRISSEY: That’s ..... but can you provide a reason why, despite this being on the map for many, many years, really, why it is that it hadn’t been addressed previously?

MS BROADFOOT: The reason I believe it hadn’t been addressed previously is because there was quite a separation between the departments. Youth Justice sat in a different department. Child protection sat very clearly within the Department of Children and Families which was the previous department. Child protection took quite a strong focus on their core business which was about harm within the family environment. And anything in relation to criminogenic risk or by children that were not in out-of-home care presenting to being arrested or taken to the Youth Court were considered a Youth Justice matter. So I don’t believe that there was enough emphasis or has been in the past, around recognising the crossover and recognising that children not just in out-of-home care but in the child protection system actually have criminogenic risks there that need to be addressed.

COMMISSIONER WHITE: In part, that might be because in fact there was just no data that told you those things either.

MS BROADFOOT: Agreed. I don’t believe it was something that we were focused on.

COMMISSIONER GOODA: But we have seen papers that show, you know, up to 50 contacts with the police by a young person and about ..... contacts with protection. You know, it seems that was happening that, you know, contact was happening at the same time. But the – there was one with 50 contacts with police and – so do you think there’s a need for those cross-overs to occur?

MS BROADFOOT: Absolutely.

COMMISSIONER GOODA: But we have spoken to police and they seem to think their role is they’re quasi child protection people.

MS BROADFOOT: I think that there needs to be – children need to be – or young people certainly need to be looked at more holistically, and I really do believe that previously it was ..... child protection workers went in and did assessments based on whether or not a child needed to come into care and/or how to reduce risks that were focused on parental harm. That has very clearly been the focus.

It really has not, other than some joined up potential case management of some conversations with community corrections, who were at times involved with young people, or requests through the Youth Court for section 51 reports that looked at young people that were offending but in the necessarily in care, even there, where there were issues identified, it wasn’t unusual for a case like that where parental harm wasn’t the key issue, there were other issues for the young person that child


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protection still could step out. They may make recommendations about services that might be involved. But it would then be considered the role of the youth justice area to pick that up. I think the bringing together of youth justice and child protection is absolutely key in getting services across the system for those young people.

COMMISSIONER WHITE: Additionally to that, of course, you also have to step back in time and know that not just are they combined and thought of as a continuum but you have to go right back to the conception, as Professor Oberklaid told us early in the week, and unless you have got that continuum of care, it’s still going to have end figures, even if you combine them in one department.

COMMISSIONER GOODA: Do you think – we have heard a lot this week about early intervention. Do you think contact with the police would be one of those triggers that would cause people to think we might have to have a look here?

MS BROADFOOT: Well, I think part of – yes. But I think part of what we are looking at doing is with the establishment of youth outreach teams. I think that also provides an opportunity - - -

COMMISSIONER GOODA: That’s those graduations we - - -

MS BROADFOOT: That’s correct. Yes. Yes. So those teams are intended to go throughout the system irrespective of whether a young child is in the child protection system or the youth justice system. They’re intended to develop relationships with young people out in the community and then follow that young person through. So irrespective of whether the young person has – is engaged in some antisocial behaviour and they have contact with those young people on the streets and you can potentially link them with other services.

If the young person then perhaps does get arrested or charged, goes out on bail or ultimately at some point goes into detention, the youth outreach service will actually follow them through the whole system and the whole point of that is really based on, in order to have a positive impact, in order to be able to engage and often engage them in services there needs to be some sort of relationship with them there. I think that’s one of the keys.

MR MORRISSEY: Commissioners, we started a little late and I understand the Commissioners have got a non-negotiate day – time.

COMMISSIONER WHITE: How much longer would you like this panel session to go? We have really hardly got into it, Mr Morrissey.

MR MORRISSEY: It’s – there is evident value to be gained, but I know that Ms Wong has to cease – she cannot go later than 12 – later than 2 o’clock, unfortunately. Others perhaps can and there’s some value in Dr McFarlane, who has some theoretical insights that are relevant. But I just wondered if we might interpose


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cross-examination, if there’s to be any of Ms Wong, because she won’t be able to be here if we do come back after lunch

COMMISSIONER WHITE: Well, we can certainly do that now. Yes.

MR MORRISSEY: If that’s acceptable, I might ask one more question and then I will sit down and allow that cross-examination to proceed, if that’s okay. Could we just proceed with one issue, one specific issue, and that is the question of bail accommodation. Now, we have heard – in the first instance, I will direct this to you, if I may, that there has been talk of a bail hostel being developed in the Northern Territory.

COMMISSIONER WHITE: Something strange keeps happening to the sound. I’m not quite sure what it is, but, Ms Broadfoot, you certainly sounded as though you were speaking from the moon at times.

MS BROADFOOT: Sorry.

COMMISSIONER WHITE: No. Nothing to do with you. I think it’s just perhaps the positioning of the mics that might be causing some problem.

MR MORRISSEY: Yes. That’s okay.

COMMISSIONER WHITE: Anyway, Mr Morrissey.

MR MORRISSEY: Thank you.

COMMISSIONER WHITE: Keep that in mind.

MR MORRISSEY: So just in terms of the issues raised by Dr McFarlane, by both in terms of the non-protective factors about a placement, can you indicate just how is the – how are the policies relating to that bail accommodation, a hostel, how are they being developed, what sort of inputs are you seeking from other groups, and how are you going to minimise those risk factors .....

MS BROADFOOT: The risk factors in bail – so what we are looking at doing is this will go out to a public tender, so it’s intended that Territory Families itself will not deliver bail accommodation. What it will do is - - -

COMMISSIONER GOODA: Why is that?

MS BROADFOOT: I think part of it is actually - - -

COMMISSIONER GOODA: Is the government not capable of doing it?

MS BROADFOOT: I don’t believe it’s that there’s no – not capable of doing it. I think this is about partnering with our non-government organisations, and it’s


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actually about moving young people further away from the child protection departmental system. I think with young people that are out on bail that aren’t necessarily - - -

COMMISSIONER GOODA: But they wouldn’t notice whether it’s a government – you know, I mean that’s - - -

MS BROADFOOT: I think - - -

COMMISSIONER GOODA: Using that – I don’t know – it just doesn’t fly. It seems everything – I think there are some things, for instance, that shouldn’t be in government. If there’s always this headlong rush to tendering, you will find if you look at the results we get from tendering, and we are looking at it, it’s just not really top level stuff we’re getting, and it seems every answer seems to be to go to tender and - - -

COMMISSIONER WHITE: Perhaps we could possibly park this discussion, because I want to ask some questions about it too, but if we do that, we will - - -

COMMISSIONER GOODA: Yes. Okay.

COMMISSIONER WHITE: Ms Wong has to run .....

COMMISSIONER GOODA: Yes.

COMMISSIONER WHITE: Thank you, Ms Graham. Ms Wong, Ms Felicity Graham is going to ask you some questions. She is from CAALAS, the Central Australian Aboriginal Legal Justice System.

<CROSS-EXAMINATION BY MS GRAHAM [12:00pm]

MS GRAHAM: Thank you, Commissioner. Ms Wong, the children’s legal service, the civil section that you run: how many lawyers do you have in that service?

MS WONG: We have four lawyers in the service at the moment.

MS GRAHAM: And is it important in terms of providing an effective service that the case load for each of the individual lawyers is limited to be able to provide that intensive service to each of the individual clients?

MS WONG: Yes. Absolutely. I guess from our perspective, our intake criteria is that we will only work with young people who we identify as having complex needs. So we only work with the most vulnerable of young people that are referred to us. But it does mean – and because we do that wrap-around legal service, it means for any young person that might be referred – and I should note that all our referrals come from our criminal law partners.

So for every young person that gets referred to us, once we do our legal health check, they often will come up with six or seven other legal issues, so you are then working


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on all those legal matters at the one time. Not only is it important to have that low case load, because you are working with so many legal issues, you are wanting to also create that rapport with the young person. Often they have had so many services work with them throughout their lives, you are just another cog in the wheel. And that often will take time. And that’s where our youth worker and social worker come in and provide that valuable rapport building to enable us to do our work.

The other thing is that, as a specialist legal service, it’s about the length of time that we get to have with the young person, so we have the luxury of being able to work with the young person for a significant period of time. And I can think of a young person I have had for over two years now that we have continued working with around particular issues.

I guess some of the things, when you look at outcomes, is a lot of these young people wouldn’t even know that they (a) have a legal issue, or where to go for help, and so we are finding that a lot of these young people now are being able to say, “I think this is something I might need to call my lawyer about.” And they have got continuity of service as well, so for each young person they get the same lawyer, and that lawyer has them for that period of time that we have got an open file for them.

MS GRAHAM: And to be able to provide that comprehensive and effective service, it’s obvious that a lot of resources need to be committed to allow Legal Aid to do that work.

MS WONG: Yes. That’s right.

MS GRAHAM: In terms of the geographical service provision, both the Children’s Legal Service, which is the criminal side of things, and the Civil Children’s Legal Service, they’re both only based in Sydney; is that right?

MS WONG: No, not in terms of the Children’s Legal Service. They provide the duty lawyer service in the Parramatta Children’s Court area, in the Bidura Children’s Court, which is the inner city area, but they also have presence in other regional areas, including the Newcastle Hunter Region, down south of Wollongong, where there are children’s court that sit in other regional settings. There’ s a panel of legal aid – rather, a private solicitor that sits – that gets paid legal aid rates to appear for the young person. But otherwise there are some other legal aid presence in other regional settings. So they’ve got a quite larger reach than us. Unfortunately, given the size of our team, we have only been able to work with those young people within the Western Sydney Metropolitan region that feed into the Parramatta Kids’ Court or Bidura Children’s Court. What we have been trying to is capacity build a lot more with the civil lawyers in the regions to be able to do some of the work that we are doing, and legal aid certainly is moving towards a model where, instead of being siloed across the jurisdictions, so it’s a criminal law, family law or civil law, that it is a bit of a one-stop shop, that a young person could easily go to a legal aid office and potentially get some level of service, similar to what we are trying to give to our young people here.


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MS GRAHAM: Legal aid, obviously, recognises that there’s significant disadvantage experienced by young people in the regional and remote areas of New South Wales and a significant amount of unmet legal need in those areas. What are the – apart from money, what are the barriers to expansion of your type of specialist wraparound service to those regional and remote areas?

MS WONG: I think it’s the mode of service delivery. It’s looking at that intensive coordination of services. So even if you were to have a service like ours in the regions, what we find is that you don’t have the existence of those other support services that a young person might need. So I’m talking about your allied health services, access to mental health services, access to drug and alcohol services, even like, you know, the juvenile justice office or the community office might be, you know, hundreds of kilometres away from where the young person resides, and access to accommodation is really scarce. So I guess, although you’ve said notwithstanding resources, I do think resources is the key thing. You don’t have the existence of those services there to provide that coordination. And that is really what is required for those young people residing in those regional remote areas.

MS GRAHAM: Finally, Ms Wong, you work closely with the Aboriginal Legal Service in Parramatta in the Koori Court that runs there, and you’ve seen some real successes in the work that has been able to be done where there’s that coordination of service provision for young people. Could you say something about how that model might be rolled out on a broader scale?

MS WONG: I would definitely support the expansion of the Youth Koori Court model. That’s running at a pilot at the moment in New South Wales sitting in Parramatta Children’s Court, and the really key strength of the Youth Koori Court is the bringing together of all agencies to sit down at the one table to kind of say, “Actually, these are the identified risk factors of the person that keeps bringing them into the criminal justice system. You all have to work together.” It provides a youthful mechanism of accountability to all the agencies around the different areas where the young person might need support. Particularly for Aboriginal young people, we have seen that they are very much flying under the radar. So for young people who have been in the care and protection system many of their places can be in kinship care, and that often means that, I guess, oversight by the statutory agencies, being community services, is often not there.

So often those young people will travel through their adolescence without having any case work support from government agencies, and they fly under the radar, and it’s only until they come to the Youth Koori Court that you go, “Okay, well you’ve been couch surfing for the last couple of years. You might have eligibility for victims compensation, but no one has ever told you about those entitlements and there has not been any recordkeeping because there hasn’t been any case management by the Department and there’s no coordination of support.” So these are young people who are entitled to that support, but they don’t get it. For those young who are about to leave care, I mean, there’s quite atrocious levels of support for young people transitioning into independence. So those leaving care plans, after-care support is


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quite minimal. And the Youth Koori Court to enable all services to come together to actually provide something for the young person often for them for the first time in quite a number of years.

COMMISSIONER WHITE: Thank you, Ms Wong. Mr Woodroffe, do you have some questions?

MR WOODROFFE: I do, your Honour, very short questions.


MR WOODROFFE: These questions are directed to Dr McFarlane. My name is Woodroffe. I appear for the - - -

COMMISSIONER WHITE: Can I suggest, it’s only cross-examination of Ms Wong because she can’t return. So do you have any for her?

MR WOODROFFE: No, your Honour.


MR MORRISSEY: Might Ms Wong be excused?

COMMISSIONER WHITE: Yes. We’re going to rise now and resume after lunch because Commissioner Gooda and I have another meeting to attend with community people. So we aren’t able to continue this together. So we will continue with Dr McFarlane and Ms Broadfoot, unfortunately, without you after lunch. But thank you for your contribution, and certainly read your statement with great interest, and we are very keen to reflect upon the work that New South Wales is doing in this field which seems quite admirable. Thank you very much.

MS WONG: Thank you very much, Commissioners.

<THE WITNESS WITHDREW [12.11 pm]

COMMISSIONER WHITE: We will resume then at quarter to 2. In the interests of people getting flights, I do have an understanding that we need to rise at 4 o’clock this afternoon. So that those who are travelling to Darwin and other places on those later flights in the afternoon can catch them. So if we can all keep that in mind, that would be handy. We have one more witness, as well.

MR MORRISSEY: Ms Wharburton is here, and I’m confident that we can accomplish what is needed by the set time.

COMMISSIONER WHITE: Excellent. Thank you. So quarter to 2. Thank you.


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ADJOURNED [12.12 pm]

RESUMED [1.52 pm]

<KATHERINE McFARLANE, RECALLED [1.52 pm]

<KAREN BROADFOOT, RECALLED [1.52 pm]

COMMISSIONER WHITE: Thank you, Mr Morrissey.

MR MORRISSEY: Welcome back. Could I just return – we did jump out of sequence slightly because of the need to deal with Ms Wong expeditiously. Could I just return to an issue now perhaps at a more conceptual level, and that is the causal link between placement in care and criminalisation. There are, obviously, a large number of matters that can lead to criminalisation. But Dr McFarlane, at paragraph 8 of your statement, you’ve indicated there is indeed such a causal link and you’ve, in fact, indicated that it’s a significant link. Can you say something about that, what was the basis of that?

DR McFARLANE: Sure. In relation to a causal link, that’s often a bit of a debate as, you know, what came first, you know, and what are the explanations for the children disturbed and challenging behaviour, and that’s why they were taken into care, or did they subsequently go on to develop this bare and become criminalised once they were in the system. My research set out to try and have a look at that in relation to a cohort of children that appeared before the New South Wales Children’s Court based at Parramatta, which is the major court in New South Wales for children. And what I looked at was 180 case files that were drawn between during an 18 month period.

That indicated there were 180 files, it was 160 children. Some of them appeared multiple times, and what I found was that for most of the children, their offending actually commenced once they were in the care system and that age was largely not such an issue. Unlike some other research I found that it was actually the younger children, those under 13 who, in New South Wales, are not technically subject to the weight of the law, the doli incapax doctrine, and yet I found that those children had markedly accelerated rates into the criminal justice system and were actually be faring far worse than some of the older children who night not have entered until they were 16 or 17 and often then because of their behaviour.

COMMISSIONER WHITE: There is, I suppose, an unquantifiable factor here that whether they had gone into care or not, if their family circumstances remained the same but they didn’t go into care, whether they would have had a similar trajectory, but of course that’s speculation and too difficult to measure, isn’t it.

.ROYAL COMMISSION 2.6.17 P-4334 McFARLANE/BROADFOOT ©Commonwealth of Australia

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DR McFARLANE: It has actually been done in a couple of studies, none Australian that I’m aware of, but there was an excellent study done by RMIT in America and that was Joseph Doyle, who is actually an economist, and what he did was he looked at decisions of care workers for children on the cusp. So there were children where some debate about whether they should be taken into care or not, and he compared 30,000 files. These were a lot of decisions, far exceeding any of the studies we have ever had done here. What he looked at was to see whether or not – all other factors being equal, what happened. So we are not talking about children who, obviously, would have died if they had remained in a parental home. We are not talking about that level. We are talking about the ones should we or shouldn’t we. What he found was that the placement in care was the sole factor which actually indicated ongoing exposure to the criminal justice system and involvement for those who had never been involved.

COMMISSIONER WHITE: Well, that’s a very powerful finding, isn’t it.

DR McFARLANE: Very much so.

COMMISSIONER WHITE: It does fill the gap in the research in this country then, if one could extrapolate it.

DR McFARLANE: Yes. And I found it very - - -

COMMISSIONER WHITE: Do you think that the factors that he took into account in his measurement are so different that we would ignore that for our purposes in Australia or whether we would actually give that credence?

DR McFARLANE: I would strongly suggest that you have a look at that study. I think it’s one of the most comprehensive that has been done. It’s one of the few in the world that has tried to compare it and answer exactly that question. One of the things I found in my research is that governments and non-government agencies tend to attribute blame to the children themselves, not necessarily saying they’re bad children, but indicating that it’s the trauma that happened before the care system got them. That undeniably has an impact of course. But what I found was that fixation on family of origin behaviour and family of origin characteristics kind of challenges the whole idea of the care system, which is that we take them away from families on the promise that we will protect them and we will do better. If we can’t, I’m sort of confused as to what’s the point of the whole billion dollar system

COMMISSIONER WHITE: Those two paragraphs of yours, 7 and 8, are terrible reading, Dr McFarlane.

DR McFARLANE: Yes.

COMMISSIONER WHITE: I don’t mean the way ..... just the contents. It’s quite disturbing to reach that conclusion.


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DR McFARLANE: My interest in the area of children in out-of-home care came about because originally I was doing research in the New South Wales prison system, so I was an official visitor in jails and I spent a lot of time weekly going into women and men’s jails, also through a pro bono advice service I was giving when I was a solicitor, and the reason it got into out-of-home care because so many of the adult prisoners have come from that background, and they would say it matter-of-factly, or they would talk about the issues around their own children, the intergenerational aspects.

So their kids were in care and they were expressing deep concern, and you get this narrative that happened which was they were saying, “Because I know what happens in there I know what it’s like. You’ve got to get them out”, and so I started thinking they are not just telling me this, surely. Where’s the figures, where’s the information? And at that stage in New South Wales there wasn’t any information collected on what happened to children of prisoners in any realistic way, whether they were care kids or not. But there was also very, very little information on the background of the adult prisoners, and yet that was my experience. So, unfortunately, that sparked – it sparked and interest which, unfortunately, has shown that it is a significant problem, not just in New South Wales, but Australia-wide and, in fact, in other jurisdictions.

COMMISSIONER GOODA: I suppose it’s natural that the next thing follows too, if we know that, how hard should it be to make a decision to put a child into care; is that part of the consideration?

DR McFARLANE: I’m not the expert on the decisions leading up to the placement of a child. That’s not my major area of interest. There are child protection experts who would know the safety or otherwise of children. My focus has been on once that decision has been made, either by a court or by a state authority in some way, and under what conditions it was made, not to challenge the decision to take into care, but to challenge what has happened once we’ve got them because that should be fairly clear. We should not be re-abusing children. We should not be having poorer outcomes than if they had stayed with their parents. Otherwise, as I said before, why are we removing them?

COMMISSIONER GOODA: I’m thinking risk factors. You know, the evidence is telling us there’s a risk that these children will enter the criminal justice at a greater rate.

DR McFARLANE: Yes.

COMMISSIONER GOODA: Maybe that’s a consideration ..... when we start assessing risk.

DR McFARLANE: I think it should be a consideration, but also an acknowledgement that the failure to address what is fairly predictable behaviour, in a way. Children do unpredictable things, but it’s within a range. They’re kids. We


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know they’re going to do. They’re going to act out, they are going to have challenging behaviour, they’re going to have drug and alcohol issues, mental health problems, cognitive impairment. It’s obvious. That’s what we know. But how the adults respond to it has been probably the most disappointing thing that I’ve found in the 20 or so years I’ve been looking at this which is that each time a child acts with challenging behaviour or commits a criminal offence, you would think it was the first time the adults had the system had ever encountered such a problem, and I find that kind of lack of awareness is really disappointing, and if we could address that, that would probably help to reduce the criminalisation and the ongoing involvement of those kids in the justice system.

COMMISSIONER WHITE: I think Ms Broadfoot has got in her materials, Mr Morrissey, with the movement of the youth justice unit into the child protection arena, for the first time those sorts of consequences are going to be built into the various tools that child protection people have.

MS BROADFOOT: That’s certainly the intention. So it’s actually to assist in shifting the way in which child protection workers approach their assessment, both in relation to those in the child protection system while we are actually doing investigations, but those that are also actually in the out-of-home care system. So they’re not just looking at what do I need for this young person to reduce parental harm in the child protection system. What do I need to reduce the likelihood of placement breakdown to address presenting behaviours, but actually provide them with tools and guidance that lets them look at it more broadly and lets them look at the criminogenic risks that are there that need to be addressed as well.

MR MORRISSEY: I wonder if we could go to paragraphs – Ms Broadfoot, you commented upon this issue at paragraphs 45 and 46 of your statement. If we could just go to that, concerning the use of tools there. Those paragraphs consider the use of tools to identify children at risk of entering the criminal justice system. Could I just ask you a bit about these to identify and address criminogenic risk.

MS BROADFOOT: Yes.

MR MORRISSEY: Could you say a little bit about what is the nature of this tool and when might it be ready and what’s the evidence base for it? Finally, how would you see them being used?

MS BROADFOOT: Okay. So the YLS is currently being used in the youth justice system, certainly within the detention centre and within Community Corrections, and I believe there was actually some witnesses previously, Elena Annabel and Tracy Luke, I believe it was, who presented the Commission more detail about that. So I’m certainly not an expert in the YLS at all, but what I can say is that the intention is to have a look at what tools are relevant. I know that there are a number of tools. This is one of them. And the applicability of it here in the Northern Territory is what we’re looking at at the moment.


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MR MORRISSEY: Alright. Do you have any – is there a formatted version of that or is there a version?

MS BROADFOOT: There is, yes.

MR MORRISSEY: Do you know the derivation of the YLS/CMI tool? Does that come out of the criminal justice sphere?

MS BROADFOOT: Yes, that’s my understanding.

MR MORRISSEY: So you expect at least, while that is being developed, that you would be paying attention to adapting it to a wider situation of the out-of-home care.

MS BROADFOOT: Yes. So what it is, is it won’t remove the tools that we’re using at the moment. So Child Protection has a number of tools in the structured decision-making that they use which looks at things like parental harm, strengths and needs within the family and for the child. Those tools are still very relevant to what we do. What we’re trying to do is provide a tool and guidance to staff to broaden their assessments out and broaden out their considerations.

MR MORRISSEY: Could I just pursue that, though. Dr McFarlane raised the issue of the difference of focus between, on the one hand, addressing – directing a criminogenic tool at assessing children, on the one hand, and, on the other hand, the focus that Dr McFarlane has had on addressing the difficulties and dangerous posed by placement in out-of-home care. I’m appreciating there may be differences one jurisdiction to another and one region to another.


MR MORRISSEY: That’s the case. Would you anticipate that the tool that you developed is capable of accommodating the dangers of placing a kid in care, per se; in other words, it’s not merely something a kid brings with them when they come into care, but they’re now facing integration in a system which, for all the best will in the world, has its teeth in the child.

MS BROADFOOT: No. I believe these are actually different issues, so - - -

MR MORRISSEY: They are different issues, I agree, but there’s a focus on the criminogenic tool.

MS BROADFOOT: Yes. So that’s about broadening out our response to the young person and being more holistic about how we, I guess, intervene in that young people’s life. In relation to the out-of-home care system, that’s different again. That requires a layer of training, policy guidance, those sorts of things to impact on the way in which children are managed within the centre. But I do just want to pick up on the fact that there are obvious jurisdictional differences. Certainly, Ms Wong referred to DVOs being used in other agencies in New South Wales. In the break I


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took the opportunity to call some of my colleagues back in the Department and just check because I’ve never actually heard of that happening before. So I’m now aware that we haven’t had that happen here in the Northern Territory, to my knowledge. So I think there are really quite significant differences there.

MR MORRISSEY: Yes. I just wonder if you could say a bit more about that because the application for an order under apprehended violence order legislation in New South Wales, other species of it elsewhere, it always seems to involve an area of discretion on behalf of the attending police officer, so that where an incident of a certain level occurs there will be a policy in place, as there is in Victoria, that an order will be sought. But the statute provides for a discretion. Are you aware of what – we can find it out ourselves and we will, but are you aware yourself of what is the situation facing a police officer in the Northern Territory who attends at a care facility and find a young person, say 14 years old, acting out quite violently, but in a domestic setting, you know, with smashing walls, threatening a lot of verbal abuse and so on, things that are reportable and could be serious – what do you understand to be the situation for the police there?

MS BROADFOOT: I probably can’t comment clearly on that. All I can do is suggest that we certainly have instances in out-of-home care where young people do act out and we certainly have certainly had some serious assaults against staff. But we’ve never actually had a domestic violence order in place ..... a child so I think that’s .....

MR MORRISSEY: It’s an interesting situation. I’m speaking over you. But could I just clarify that. What you’re saying is, not only have the police not sought it, but the individual workers have not sought it.

MS BROADFOOT: That’s my understanding.

COMMISSIONER WHITE: Won’t that come down to what your definition of a domestic situation is, and I understood from Ms Wong that that was a broadening of that expression so that it could include aid caring, as well as what we would normally regard as a domestic situation, and that – from her evidence, it was an unintended consequence of that broadening, and, of course, it would take in, for example, a retirement home; that sort of situation. But it may not have anticipated taking in Resicare. I think the Solicitor-General is going to help us.

MR MORRISSEY: Yes, it could be. If you want to say it now, do, yes.

MS BROWNHILL: The answer is that in the Territory domestic violence legislation any domestic setting is covered. So it would include residential care or children in residential care.



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DR McFARLANE: Could I also add to that briefly about the New South Wales situation. I was in the Attorney-General’s Department at the time when the domestic violence – sorry –domestic situation definition was broadened, and the reason it was broadened was actually to protect children in residential care from assaults by care workers because there had been a number of situations where children had been assaulted predominantly by workers, but some by other children, and the police were arguing that they couldn’t do anything because it wasn’t a domestic environment. So the whole idea of the AVOs and the expanded definition was intended specifically to assist children in care, and it was then almost immediately used against them to make the situation worse for them, intentionally or unintentionally. But it has been now, I think, nine to 10 years that there has been – this problem has been identified and the government has failed to remove that from the legislation.

COMMISSIONER WHITE: Which had led to the protocol.

DR McFARLANE: Correct.


MR MORRISSEY: You did – Ms Broadfoot, I just noticed that you referred in the annexes to the statement to policies which focus on the monitoring of the wellbeing of children in care. So it’s a different focus again, but it’s still a useful one. Now, with respect to the wellbeing of children in care, it follows logically, and it must follow as in real life as well, that the training of carers and the support given to them is fundamental to the way in which those train, those careers are able to deal with children with complex sort of needs. Now, how do you see that issue being dealt with, given that out-of-home care in the Northern Territory is delivered by a disparate range of agencies under – we have heard of the four main categories in which it’s done, foster, kinship, purchased care and residential care – delivered by public and private providers of different sorts. We also heard there was some differences in the way in which the government was able to oversee and enforce training standards. What do you mean to do or what is the policy direction concerning standardisation of training, accreditation of careers and so on?

MS BROADFOOT: So my – that’s not my area. When I can say is that the Department, in acknowledging the need to work with children in a way that reduces harm to a child in care, partnered with the Australian Childhood Foundation to actually come up with a model for out-of-home care – sorry – for residential care specifically with the view to actually ensuring that it was a trauma-informed model of care. So that’s the intention of delivering that. And while – I can’t really speak to how that’s transitioning over.

MR MORRISSEY: I understand training is not your area, and I do – I didn’t mean to suggest that it was, but you still need to design policies that are able to be delivered to a particular audience, and you have to be aware of the demographic of the people who are going to be working in the homes because some policies at a UN level will just be incomprehensible or functionally so to some of the workers in that


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situation. So I suppose what I mean is how are you ensuring that the policies that you formulate are comprehensible and communicable to those to whom it falls to deal with the actual children.

MS BROADFOOT: Internally, that’s, obviously, the internal training and the policy and ensuring that staff are aware of what is expected of them. But it’s actually an embedding of – like, if you look at – if you’re developing up a model that is trauma-informed, it is actually about, yes, you have policies and procedures, but it’s actually embedded in the day-to-day supervision of the staff, the day-to-day running of the centre and having a clear expectation and giving people a clear understanding of their rights and responsibilities within that, but also ensuring that there’s good supervision and oversight, the way in which children are managed on a day-to-day basis and the way in which staff are responding, so that you actually develop a feedback loop within the centre for how best to manage that particular young person in their unique circumstance.

MR MORRISSEY: Perhaps just conclude that part of the questioning. The policies really presume that all of the workers, whatever their background and whoever the employer is, have a common standard of ability and a common standard of accountability.

MS BROADFOOT: And that would be – when we’re looking at external providers, that would then go out into any sort of procurement tendering process that we go through. That would be embedded in the requirements.

MR MORRISSEY: Alright. Thank you. Now, I wanted to return to the issue of remand and bail. We cut off the bail issue because of a need to turn to – and particularly discussion about Ura House. Again, if I could start with you, Ms Broadfoot, and then come to Dr McFarlane for a general comment. We know, and you said earlier, about that Ura House was proposed. Could I just ask you how children in care, who are in care, currently supported for the purpose of bail? So a child who is under care, who is alleged to have offended and faces a court, seeking bail. How does the – in practice, how does the department support those children?

MS BROADFOOT: So child protection managers, obviously, case managers, have a role in the day-to-day management of young people, and that includes ensuring the young person has an understanding of their bail conditions, that things are put in place to support that young person to meet those bail conditions. That is one of the key aspects of it. And they will work together with the youth justice side, Community Corrections, etcetera, where appropriate to make sure that those needs are met. What we’re also doing is with the introduction of the youth outreach and re-engagement teams is to provide another layer, really, of an ability of staff to be able to engage with young people, that in addition to what their case manager will be doing, and to support young people to engage in programs.

MR MORRISSEY: The Commission has heard anecdotally of occasions where case workers sometimes took a view that custody was better than the alternatives. Are


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you familiar – and that that view was made known to the court. Have you heard of that situation?

MS BROADFOOT: I have heard of some very extreme situations. It certainly isn’t the standard. I am aware of one or two cases where what was trying to be achieved was because of the young person’s absconding behaviour and offending and inability of the case manager to actually undertake any formal assessments of the young person, there was – I’m aware of one certain circumstance where there was a decision that if we could have access to the young person and get services in order to be able to do some assessments to inform the best way to intervene and case manage that young person, if they got locked up, that would actually provide an opportunity to do that. But it certainly is not a standard position of the Department. There are only a couple of cases that I can think of.

MR MORRISSEY: Rather than proceeding on a case by case basis on that topic, could I ask you to, at a systemic level, may I – tell me if this is an accurate way to capture the Department’s position: it’s not the preferred option for a caseworker to oppose bail being granted, but where the caseworker assesses that they would be better able to access the young person and to work with them, then it is open to a caseworker to oppose bail in front of the magistrate?

MS BROADFOOT: It would be very rare, and it would be – it would require significant oversight from senior staff, so – and a case manager - - -

MR MORRISSEY: My next question, what would happen – sorry. I talked over you, but I will just – I think I’m with you. I think ..... where you’re going.

MS BROADFOOT: A case manager would never be free to make that decision themselves. There is nothing beneficial, generally, to having a young person in detention at all. That’s known. There have been one or two occasions in the 14 years that I’ve worked with the Department, 13 years, that I am aware that a situation was so extreme and the concerns for the young person were so extreme that that was done.

COMMISSIONER WHITE: What about the situation, however, where the case manager can’t – the caseworker can’t find suitable accommodation for that young people? We have heard many examples of that. That’s not opposing bail for the purposes that you’ve just been discussing, but simply for want of a placement for the young person by default goes into remand.

MS BROADFOOT: I’m not aware of the Department or a case manager opposing bail because - - -

COMMISSIONER WHITE: Not opposing bail, just unable to offer a placement for the young person that would satisfy the court.


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MS BROADFOOT: Again, I think that’s – I’m not personally aware of circumstances where that has occurred. I’m certainly not saying that it has never happened. My understanding is that the Department has an obligation to provide a placement. Whether the court considers that placement appropriate, I think there has been some difficulties in that on occasion. But I am not aware of a young person who has been released not having a placement to go to. We have an absolute obligation to provide a placement.

MR MORRISSEY: I think that might be the point, though. You do have the obligation, but is your evidence this: you’re not aware of situations where a caseworker has come along and said to the court, “We do have an obligation to find somewhere, but we can’t find anywhere that’s appropriate.” Are you saying you’re not aware of that situation developing?

MS BROADFOOT: It hasn’t come to my attention.

MR MORRISSEY: Because it hasn’t come to your attention, I take it it’s not something known in the Department as a problem they need to face.

MS BROADFOOT: Not that I’m aware of.

MR MORRISSEY: Could I just take you to the issue of oversight, finally, and then I will invite my learned friends to ask some remaining cross-examination questions. Could we just go to paragraph 109 – before I do that, I need to ask Dr McFarlane. Sorry. You’ve heard that, the questions that have just been asked there and the answers given. Are you familiar with that problem, obviously, not in this jurisdiction, but elsewhere?

DR McFARLANE: Absolutely, yes.

MR MORRISSEY: Can you say what options there are to address that issue that you have seen?

DR McFARLANE: First of all, if I could just go back to the case management issue. New South Wales and other Royal Commissions and inquiries have established this in other jurisdictions. I’m less familiar with the Territory in practical experience. But every other jurisdiction has found that even where there are policies and practices that very clearly set out that case management of children in care needs to happen, there are many cases – in New South Wales it’s called unallocated or closed due to competing priorities.

What that means is that usually a child protection case where there is a young child at risk of significant harm at the hands of family is prioritised in a case worker’s load compared to, say, a 15 year old who is smashing windows in a residential care home. One might end up being seriously injured, one is unlikely to be. So unless out-of-home care cases are quarantined, and that was eventually moved to in New South


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Wales, as much as they could, your family risk factors always took a case worker away to deprioritise other cases.

When it came – and so often cases would be closed, and the children who may be facing significant charges in the criminal jurisdiction will attend court without a designated case worker. My experience of my observations of the Children’s Court, both through my research but also in my time what I was executive officer of the New South Wales Children’s Court – also, magistrates were continually bringing cases to me where they said, “Here is another one DOCS hasn’t shown up,” or the non-government agency hasn’t shown up.

When they do show up, and this is confirmed by international research, it’s very, very common for case managers – I’m not sure whether on the ground case workers or their superiors – but definitely the position of the relative departments has been to advocate for a child to remain in custody either for their own wellbeing, usually when the child is young, 14 or so, or to teach them a lesson. And that has been – I have seen transcripts. I have sat in cases and observed that, and certainly in my research that was very common for the majority of the children in out-of-home care that were in my sample.

So I think that what that illustrates is, unless the Northern Territory is unlike every other jurisdiction that I have looked at, and actually does have systems to ensure that what is put in paper is actually implemented, then my suggestions would be that more evidence would be needed to test that point. There is a lot of material in the government position which appears incredibly helpful, very useful, and really world standard, but I have seen that in other jurisdictions and it has not been implemented.

MR MORRISSEY: Just finally, may I turn to the oversight issue and go to Ms Broadfoot’s statement, please, and could we just have paragraph 112 up on the screen. But here – you said earlier at 109, we don’t need to have that there, but you said there’s a heavy focus on output rather than outcome measures, which appears to make it difficult to access effectiveness and outcomes of those measures. And you said you would like to see – and this is at 112. You said you would like to see more of a focus on measuring outcomes. Could you explain what you mean by that? What outcomes would be appropriate to measure progress in this area and what sort of devices or metrics might you use to measure?

MS BROADFOOT: So outcomes are really about improving the outcomes for young people. So that’s what we’re focused on. So at the moment we – there is a lot both in the way in which we fund some of our NGO partners but also internally, that is focused on output, i.e., a child has been seen, this has been done, this program has been held. What we haven’t got is what the outcome of that is. So if a child has been seen, what has that actually done to assist improved outcomes for young people. If a program has been delivered, what are the outcomes for that young person?

And that is something that makes it very difficult for us, and I believe I have answered that in the context of how does the child protection system reduce young


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people going into youth detention. That’s part of the issue; is that we don’t have any clear measurements in place in relation to that. So it would be a move – it’s a move where we’re already looking at the ways in which we could measure that, particularly when we’re looking at funding other agencies, but also internally, about how we start to measure some of those outcomes.

COMMISSIONER GOODA: And I suppose that’s what my questions were going to before. It’s not like you are measuring a standardised itemised delivery of something like a blood test regime. It’s actually very complex systems we’re trying to look at here. And the question is: how do we actually design a system that’s going to produce those outcomes that are measurable. And I guess – I will have a question for another day, I suppose, about “Why contract those services out?”, but I think that’s the issue we’re trying to capture here, in a contract sense. You know, how do you actually capture what you want to achieve in a contract sense, when we are talking fairly complex issues around human issues.

MS BROADFOOT: Look, certainly I’m not an expert in relation to how you formulate measurements in order to then get – demonstrate outcomes at all. But what I would be thinking is if you were looking, for example, at – you would look at the baseline of how a young person is coming and the sorts of behaviours they are presenting with, etcetera. And you would look at a reduction in those sorts of things in order to show an improvement. So that may be improvement and engagement in education, for example, and improvement and in engagement with prosocial activities.

They’re the sorts of things that could go towards showing better outcomes for young people for when they’re leaving the system. We don’t that at the moment. We measure numbers of incidents but not necessarily what we have then – how any intervention around that – what the outcome of that intervention is. And that’s where we need to move to.

COMMISSIONER GOODA: Yes. I suppose everything should be focused. You know, they’re pretty simple things, reducing kids in care, or people going into detention. But what parts of that process do you actually pay for in contract? It might be education. It might be resi care. It might be something else.

MS BROADFOOT: Potentially.

COMMISSIONER GOODA: Yes.

DR McFARLANE: Could I just add to that; it might be of assistance. You might want to look at the New South Wales model, because we have been struggling with the same difficult where they basically were paying in contracts for kids to have a bed and they pay the agency and it didn’t matter if the child was in the bed or in detention; they still got paid. And what we have been trying to move towards a far greater emphasis on what it means for the child. So not necessarily whether the


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child’s offending has reduced, but do they have a home? Do they have clothes? Do they actually have books to help them go to school.

These are really basic things which no one put into contracts or required because it seemed to be obvious if you’re providing care to a child you would ensure they are fed and watered and sheltered. They weren’t obvious, and the huge number of non-government agencies in the New South Wales system and the gradual removal of the statutory authority has meant that things which many people took for granted have had to be really, really clearly spelled out, and that’s an ongoing work in progress which is causing all sorts of dramas at the moment.

COMMISSIONER GOODA: Dr McFarlane, would we be able to get some reference to that?

DR McFARLANE: Yes.

COMMISSIONER GOODA: Outside this – thank you.

COMMISSIONER WHITE: And slightly following on from that: your paragraph 12 and 13 where you’re discussing the failed attempts to perform in the child protection systems, in Australia and internationally, you observe provide observations on the difficulties with implementing reforms on this area and then you go on to flesh out some of those difficulties.

DR McFARLANE: Yes.

COMMISSIONER WHITE: But it is so appallingly stark that millions upon millions of dollars have been spent on inquiries into attempting to reform child protection systems. Clearly to no avail, if you look at the statistics. What wisdom should we bring to our task?

DR McFARLANE: I guess the constant disappointment to me is that there has been so much money and attention spent, but that very often when governments or non-governments are called to account for why they have not done something, the answer is often “We didn’t know”, or “It was a different jurisdiction”, or “We’re moving to that”. But that happens time and time again.

In my experience, various heads of department or key decision makers have not read anything other, if you’re lucky, the executive summary of a Royal Commission and possibly the recommendations. Certainly in my time in government, that’s all we used to get with an advice sent around saying “Give us a brief on that”, not the whole report. And what happens is that the complexity and the subtlety of the issues is lost.

So, first of all, the lack of awareness of what has gone on in other jurisdictions and in your own jurisdiction over time is lamentable and quite frankly deplorable because the outcomes for the children are constant regardless of whether governments are aware of them or not. And that is they have poor outcomes in terms of education, in


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housing, in social skills and development, and, in this instance, progression into juvenile justice and the adult system.

Many of the recommendations and inquiries have looked at these systems. They have made recommendations which are consistent across jurisdictions and they have not been implemented. But what has happened is there has been a failure – we move on to the next crises, and there’s a failure to understand or to examine what went wrong. The one exception to that, that I think is actually quite useful was the Federal series of reports into Stolen Generations, forgotten Australians and British child migrants and that led to the various apologies of which there have been four to the various child welfare recipients in the last recent years.

So whether it was forced adoptions or the forced migration of children, transportation of British migrant kids, whether it was Stolen Generations what all had in common was that recommendations weren’t implemented. There was an inquiry and what the Senate did was they came back and they looked at the last inquiry and they said, “Well, why didn’t you do anything?” and they called governments to account and said, “Well, all these recommendations were made, you said you were going to change your practices and policies, these are the figures, they’re still the same, what have you done?”

So that was actually quite instrumental, and that report is what led to the subsequent apologies for Forgotten Australians. So it’s not an answer, but I find that the things that all of these inquiries have in common is a disinclination or an inability to hold agencies who are actually responsible for the protection and wellbeing of children to account.


MS GRAHAM: Commissioners, Mr Woodroffe has had to depart to head back to Darwin. He has asked me to apologise to you for his absence and has also asked me whether I might ask some questions on his behalf to both Dr McFarlane and Ms Wharburton this afternoon.

COMMISSIONER WHITE: I take it there’s no problem from counsel.

MR MORRISSEY: No. That’s correct. Counsel Assisting does not object.

COMMISSIONER WHITE: Commissioner Gooda?

COMMISSIONER GOODA: No. Absolutely not.

COMMISSIONER WHITE: Absolutely not. And we know his questions are usually very short. So we know if you are putting them fairly or not.

<CROSS-EXAMINATION BY MS GRAHAM [2.31 pm]>

MS GRAHAM: Dr McFarlane, can I start with you. My name is Felicity Graham and I appear for the Central Australian Aboriginal Legal Aid Service. You mention


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in your statement that there is a lack of data collection and also a lack of research in this area. Can we start with data collection. What are the key data sets that need to be collected to allow for meaningful oversight and reform in this area?

DR McFARLANE: Thank you for the question. Data collection is very dear to me – I am a researcher – and one of the things that’s really important is actually information on out-of-home care status. So in New South Wales and most other jurisdictions, as I understand it, I think the same here, out-of-home care isn’t routinely collected by police. So my argument is that the lack of understanding we have about the connection between care and the criminal justice system is exactly the same as we had in relation to Indigenous overrepresentation, 20 – 25 years ago.

It’s exactly the same arguments; many times it’s the same people, but not always. But it’s the same arguments, and now the fact of not inquiring about gender or not inquiring about Indigenous status seems unfathomable. It’s the same for care. You need to be collecting the data not just on involvement in the justice system but involvement in homelessness services. The former premier of New South Wales, Mike Baird, in one of the last things he did before leaving the position, was to say that 60 per cent of homeless – of the people dealt with in homelessness services were kids or had been in out-of-home care. That’s 60 per cent of a multibillion dollar industry and yet they do not collect statistics routinely. That’s – this is something that has only recently come out.

So education – if you are looking at suspensions, if you are looking at truancy rates, if you’re looking at expulsions, it’s your care kids. And yet, again, they don’t collect those figures. So my argument is if the State has determined that a child is to be removed for whatever reason and they are placed in State responsibility, whether that is then contracted or tendered out or shared parental responsibility, however it is worked, the fact of taking a child and putting them under State authority means that the State has an opportunity and an obligation to be tracking the information and to report back to the public so that the public can have faith that the system is doing what it says it’s promising.

So data collection on out-of-home care is a bare minimum. And I note also that that has been a recommendation of other inquiries and it was also something considered at a Federal level in respect of inter-generational drift, educational achievement, etcetera, by a number of bodies.

MS GRAHAM: So police, courts, schools, hospitals - - -

DR McFARLANE: Yes. Absolutely.

MS GRAHAM: - - - should all be collecting this data.

DR McFARLANE: Yes. The care population, unfortunately, and for a variety of reasons, including pre-existing family environment, but not just, as we have talked about, scores more poorly on every measure than any other group you want to


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compare them to. That’s what the evidence is starting to be known. So they’re more likely to be hospitalised and to die younger. They’re more likely to be involved in criminal justice. You name it, the disadvantage is there. And yet it’s bits and pieces of information we have, because there’s no standardised collection in the way that gender and ideally Indigenous status should be collected.

MS GRAHAM: Ms Broadfoot, if I could just ask you briefly about this. The Territory Families monthly reports include some data about children who are both in care and in detention. Could you explain how that data is collected?

MS BROADFOOT: So it would be part of the placement data that’s in CCIS. The difficulty with that data, though, is that it is manually entered and there are significant flaws in it. So it’s not about the two systems talking to each other, so you have accuracy. What you have got is really some quite flawed data based on whether or not someone has entered into the correct code. An example might be where a young person has gone into detention on a Friday evening and released on a Monday. If nobody has gone in and then entered that into the system, it won’t even show up. So I think there’s – while it’s there, that is internal information that is quite flawed.

MS GRAHAM: And, Commissioners, for your reference, LW2 to the statement of Ms Wharburton reflects the table that includes that data collection.


MS GRAHAM: Ms Broadfoot, in relation to children that are in detention who are also in care, you would be familiar with the phenomenon of children from central Australia frequently being transferred from detention in Alice Springs up to Darwin. And in your statement you refer to the different levels of engagement that occur between a child in care and their case worker from Territory Families or the former department. What steps are taken to bridge that barrier when a child who is in care is moved away from what might be their local office and case worker?

MS BROADFOOT: Sure. So, firstly, we do consult with the case worker about whether or not there’s anything that would be problematic in relation to the transfer before we agree to the transfer. What we then do is there is an agreement between the regions. So that where a young person is detained, someone from a local office will go and meet with the young person and speak with the young person and perform tasks on behalf of the case manager there. There’s also the ability to have video link-ups with the young person as required. And there have certainly been occasions where Alice Springs staff have actually travelled to Darwin to meet young people.

MS GRAHAM: Dr McFarlane, I now have some questions to pose on behalf of NAAJA, and they relate to your evidence at paragraphs 84 and 85 of your statement which deal with loss and bereavement in children both experiencing interaction with the criminal justice system and the child protection system. You acknowledge that there’s a lack of research in this area and also a lack of understanding about the


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impact of loss and bereavement on children. Has your research or experience revealed nationally or elsewhere any practices or policies to assist children who have experienced traumatic events such as the death of a family member or serious illness in a family member whilst in care?

DR McFARLANE: Thank you for the question. I think certainly the level of bereavement and loss – and in my research I extended that to include separation due to parental incarceration – that’s something regardless of the strength or otherwise of a relationship between a parent and child, I found that that was still having a significant impact. The child felt bereaved and lost even if there were very good reasons the parent was in jail. So it’s a definite issue for many children in juvenile detention, not just obviously children in care, but it was particularly pronounced amongst the care group.

What I found also was that many of the children in my sample had multiple experiences of death and bereavement. In one instance a child had lost four close relatives in a couple of months. While that was understood and it was noted on the files, which is how I knew about it in the first place, what there wasn’t a connection back to was the topic we keep hearing about of trauma-informed practice or trauma awareness. And although one half of the department or one body was advocating that’s what they did, it wasn’t evident from the court files that that was really understood and certainly was not presented to the court as not an excuse for behave but as an understanding of what might have sparked the behaviour.

But – and this is by child protection. I found that juvenile justice – Youth Justice were actually the best at identifying that, in my experience, probably maybe because they had the children in custody and when the kids went off it was often in detention and they became aware of it. But there was a real disconnect between understanding that a child may have lost people and knowing that this actually impacts upon their offending.

So in my research, I found that often the loss of a parent was a bereaving – sorry – an instigating factor for offending, even if that relationship with the parent had been incredibly fractured and the parent was in fact abusive; the death of that parent sent the child off the edge a lot. And repeated incidents of children acting out in ways which were explicable, if not justifiable, when you understood what had just happened. And yet, again, child protection workers were often presenting material to the court saying that the child has to get over it or they have to understand that they have got to accept responsibility for their own actions.

And as I said, juvenile justice was often saying, “Well, hang on, we have a slightly different opinion here. This is understandable and the child needs counselling, psychiatric, or at least grief counselling.” I couldn’t find a single case of any child in high 60 children that I looked at that had been provided with grief counselling at any stage in the care system. I can’t believe they would have received none but it was not documented in any of the material available to the court and therefore available to me.


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There has been some work done in the UK. Bereavement has now been understood as a far more significant factor in the commission of offending, not just within care, but offending more broadly. And the high rates of loss within adult prisoners that they incurred in their childhood has been recognised and there are steps to undertake to recognise that as a key trigger.

MS GRAHAM: This is a real pressing for Aboriginal children in care; do you agree?

DR McFARLANE: Very much so, and what I found was significant, both from my – my research, but also from my time in government and in the Attorney-Generals and in the Children’s Court was that often, especially for Indigenous children, it was almost like the number of deaths and experiences of disadvantage tried the patience of generally predominantly non-Indigenous bureaucrats. By that I mean that a child’s first application to attend the funeral of a relative was usually met with sympathy and usually granted, not a problem.

However, the second, third, fourth, fifth time they had to do that, it was like, “They’re just trying it on,” or “They’re not a close enough relative.” So the connections with culture and with country and with an extended family situation was still not properly understood or accepted by JJL Corrections staff and child protection staff in New South Wales. I can’t comment on what – if that’s the situation in the Territory. I would hope that the understanding was different.

MS GRAHAM: Would you recommend that counselling should be provided across the board as a minimum measure to assist all children who are taken into care?

DR McFARLANE: Counselling is essential, but it depends on what type of counselling. So grief counselling is one thing. Psychiatric or psychological counselling is another. But also you have to be very, very careful about the agencies who are providing the counselling. I just remind you that there is currently a Royal Commission into institutional responses to child sexual assault and what that Commission has identified is that the greatest number of allegations of sexual abuse have come from the out-of-home care sector.

And so if you have got the same agencies and in this age of contracting out and privatised or large not for profit agencies, who are now spanning multiple states, you have got agencies responsible for providing counselling who are the same agencies responsible for running residential or other care services who are the same agencies who are providing assistance in detention. That’s not always a good thing.

Particular examples are St John of God that was given in the institutional Royal Commission, which was flagged as being 40 per cent of its members were apparently paedophiles. They provide drug and alcohol counselling and post custody release services and counselling to people who have come through the system that they ran. I find that quite remarkable. And while the children might not be cognisant of it,


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they do know when they’re older and it’s a source of great annoyance and concern and has been tied in research to a disinclination of people who have been in the system to go to those other agencies for help. They just won’t go. So “Yes, but” was the answer.

MS GRAHAM: Commissioners, can I pose one final question.

COMMISSIONER WHITE: Of course.

MS GRAHAM: It’s on behalf of Mr Woodroffe, so I feel - - -

COMMISSIONER WHITE: Ms Graham, that’s unworthy of you.

MS GRAHAM: - - - negligent if I don’t do it. He is not here to defend his interests of NAAJA. And it relates to – and I will bundle it up into a two-part question. What studies if any have been carried out in relation to meeting the spiritual and healing needs of Aboriginal children in residential care; and, secondly, whether you would agree that any systems approach to meeting those spiritual and healing needs of Aboriginal children in care must put great importance on children being with family for Sorry time and times of loss.

DR McFARLANE: I’m not particularly aware of studies that have focused other than those conducted by Aboriginal Legal Service or some Canadian comparisons. Canadian Residential School Impact has had a huge – generated a lot of debate and research over there that is relevant in this context as well. The focus in New South Wales to my understanding hasn’t really been on – we haven’t even got to spirituality and healing yet. We are still talking about separation from – just from land and family.

There tends to be an emphasis that if you just stick Indigenous kids with family, they will be fine and that has led to a lot of cases being closed. They’re not fine. It depends. If you have a strong, well-supported Indigenous family and the government or the non-government agencies don’t leave it all to them and just go, “It’s yours now,” and then wonder what went wrong, if you have a strong supported family where the family knows they can call upon a service, an agency for assistance, then the outcomes are generally better. But to my knowledge we don’t talk about spirituality in the same way that you may well do here. Sorry.

MS GRAHAM: Thank you, Commissioners.

COMMISSIONER WHITE: I wonder whether Ms Broadfoot might have anything to contribute since she is in reform mode in her current job.

MS BROADFOOT: I think it’s an interesting question that’s posed. I don’t believe – I will concur with what you’re saying. I don’t believe that we actually do a lot of work around that sort of healing either. So that’s actually a new thing that I need to consider.


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COMMISSIONER WHITE: Thank you. Thank you, Ms Graham.

MS GRAHAM: Thank you, Commissioners.

COMMISSIONER WHITE: Thank Mr Woodroffe for those questions.

MR MORRISSEY: The Solicitor-General has a question which we have - - -

COMMISSIONER WHITE: I think Ms Brownhill - - -

MS BROWNHILL: Just an extremely brief couple of questions in order to perhaps put some of the evidence the Commissioners have heard this afternoon and this morning into context or into perspective. Ms Broadfoot, are you able to give the Commissioners and indication of the number of kids in the Northern Territory who are currently in out-of-home care.

MS BROADFOOT: My understanding is it’s 1044.

MS BROWNHILL: Thank you. And how many of those are in residential care?

MS BROADFOOT: 110.

MS BROWNHILL: Thank you. And, Commissioners, the only other point is I rose to indicate the breadth of the relationship, domestic relationship, as defined in the relevant domestic violence legislation. I can give you the section. It’s section 9, particularly subsections (b), (d) and (g). (g) refers to persons in a carer relationship of the Domestic and Family Violence Act of 2007.

COMMISSIONER WHITE: Yes. Thanks very much, Mrs Brownhill.

MR MORRISSEY: Those are the questions for the panel, Commissioners.

COMMISSIONER WHITE: Thank you, Mr Morrissey. Thank you very much, Dr McFarlane and Ms Broadfoot. And I thanked Ms Wong. It’s such fundamentally important work that you have done, Dr McFarlane. It has really helped us clarify a lot of our thoughts and even though, of course, they’re findings that you probably didn’t want to make at all, we hope they will help to inform us to do something worthwhile. And, Ms Broadfoot, thank you for putting before us the direction that the Northern Territory is hoping to go in.

MS BROADFOOT: Thank you.

DR McFARLANE: Thank you.

COMMISSIONER WHITE: You are both released from your summonses now.


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<THE WITNESSES WITHDREW [2.51 pm]

MR MORRISSEY: I am grateful, Commissioners. I call Leonie Wharburton.

<LEONIE WHARBURTON, AFFIRMED [2.52 pm]

<EXAMINATION-IN-CHIEF BY MR MORRISSEY

MR MORRISSEY: Thanks very much. Ms Wharburton, would you state your full name, please?---Leonie Jane Wharburton.

Now, you will just have to make the microphone face towards you. Thank you for doing that. A what’s your occupation?---I’m currently the Acting Executive Director of Governance in Territory Families.

And what – did you produce a statement for the purposes of this proceeding?---Yes. I did.

With annexures?---Yes.

And have you had a chance to look at that statement recently?---Yes.

And is the statement true and correct?---Yes.

Thank you very much. Now, you’re currently – what is your current position in the governance division for Territory Families?---Acting executive director.

Acting executive director. And do you report to the deputy CEO of organisational services?---Correct. At the moment, yes.

You have been with Territory Families since 1991 in various roles?---Yes.

Which I won’t set out here, but you are familiar in general terms with the Territory Families general operations and its practices and procedures?---Yes.

Thank you very much.

COMMISSIONER WHITE: Are you going to tender that statement, Mr Morrissey?

MR MORRISSEY: I am. I tender that statement with its annexures. Thank you, Commissioner.

COMMISSIONER WHITE: Thank you. That is exhibit 492.

.ROYAL COMMISSION 2.6.17 P-4354 L. WHARBURTON XN©Commonwealth of Australia MR MORRISSEY

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EXHIBIT #492 STATEMENT OF LEONIE WHARBURTON

MR MORRISSEY: Now, the governance division was created in July 2016 after a restructure; is that correct?---Yes.

Can you just say, why was it that this restructure occurred?---That would be a very good question. I wasn’t in the agency at the time that the planning for that particular restructure occurred. I was in the department of education at the time. So I don’t feel well-placed to talk about the background to that particular restructure.

Alright. Are you aware, though, of what the previous governance arrangements were for Territory Families?---Yes. Broadly. Yes.

And in what respect were they different, or significantly different, to the ones under which you operate?---Certainly the governance division as it is named today, what would have been the Professional Practice Division in a previous iteration of the agency and I did work in that particular division before I went across to education.

Organisationally, did that likewise report to the deputy CEO of organisational services or the equivalent?---We didn’t have deputy chief executives at the time that that division was in place.

So to whom did it report?---There was an executive director. That’s a very good question.

That’s okay. Look, if – it’s fine for you to say “I don’t know”, and we will move on. Alright. Now, the governance division is responsible for a number of things: practice, integrity, and performance, audit and risk, and statutory assurance. Is that correct?---Yes.

Likewise, practice, integrity, and performance, in turn, is responsible for the review and oversight of Territory Families practice and client outcomes; is that right?---Correct.

And this involves a number of things, reviewing Territory Families progress against its key performance criteria?---Yes.

Correct. I will just have to list these for you; you tell us if they’re right. Providing responses to various external investigations; Children’s Commissioner, for example?---Yes.

Dealing with complaints about abuses in care?---Mmhmm.

And identifying systemic issues as they arise or are brought to your attention?---Yes.


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And reviewing the implementation of recommendations from any such reviews; is that correct?---Yes.

Now I just want to deal with some key issues that have arisen. If we could just go to paragraph 25 of your statement. You said this – you state that:

The more –

it will come up on the screen in due course, but I will start reading:

The more difficult task is not to identify the gaps in service provision but to take effective steps to rectify them.

?---Yes.

Now, it’s a statement which begs the question: could you just identify what you see when you say the gaps. What do you see as the principal gaps that you see in service provision today?---Yep. Look, there would be several, and certainly without putting any higher order of priority on some other than others. Look, certainly, if you look at the recommendations from the reviews that have been done over time, a lot of them do relate to needing to for ever update our policies and our training. Certainly the business that we’re in is a continuously evolving business, so we need to be sure that we’re adept at responding to practice changes as they occur. So certainly some of the gaps is policy being responsive to how systems are changing, and certainly we heard before about training and making sure that our professional staff are receiving contemporary up to date training to deliver the services on the ground. Certainly, I think some of the gaps are we do have quite a young workforce that comes to work in child protection. They have often just finished their graduate degrees. They need a lot of skills in working with the families to gather their expertise, so certainly some of the gaps is being able to equip these staff quickly to deal with the complexity of the families that they’re working with in the ground – on the ground, sorry. Some of the gaps are certainly closing the gaps as well. It’s about making sure that different agencies are working collegiately together. This is a shared responsibility, I think, as the previous witnesses were describing. We need health around the table. We need housing around the table. We need education around the table. Some of the gaps is bringing those large departments together to form a cohesive whole to respond to the needs of children and families.

COMMISSIONER WHITE: And do you have some answers?---How to close the gaps, Commissioner? Look, there is lots of good communication involved, and I’m certainly thinking, Commissioner, that the current cluster model for Territory Families is a very, very promising one to help facilitate closing that gap. They are bringing the key agencies together with Territory Families. That’s where I would expect those very high level strategic conversations to be occurring.

COMMISSIONER GOODA: What about – that seems to be, if I can describe it as central office level?---Yes.


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Is it similar process considered at the, say, local level?---The closing the gap? Certainly - - -

Yes. Yes?---It has been my experience, Commissioner, that on the whole, at the ground level, we can work quite well together with other agencies. There is a lot of information sharing with a shared client that does go on. Sometimes I see we hit some hurdles about how the boundaries around a service are managed, and I think sometimes that just can come back to very humble but very real things in terms of funding. Sometimes a complex client requires a service to stretch outside a little bit of what their usual boundaries may be, and it’s finding the elasticity to be able to respond to clients who do not neatly fit into maybe some of the service definitions. So on the ground I do feel that there is very much a good will and a good demonstration of working in partnership. But sometimes that can be person-dependent. We just need to be sure that it’s not individuals creating those relationships. It’s systems.

Yes?---Correct.

COMMISSIONER WHITE: That, of course, is true. But it is individuals that make systems work?---Very much so.

And certainly we have heard that the case load for the on-the-ground workers is so heavy that they really can’t find the time to develop the relationships with their opposite numbers in, say, health or education, much as both sides are willing?---Mmm.

I know this is a resources issue, which is very – looms large in the Northern Territory?---Yes, Commissioner.

But it’s hard to know how you can get rid of that problem, if you just haven’t got time to meet for a coffee with someone from education and just talk over a couple of things?---Yes. I do some changes coming into effect like shared training opportunities.

That’s good?---Rather than – for example, education might offer a training of, for example, child development. You know, I do see some doors opening. You know, we need our practitioners to know child development, as do your staff need to know about child – let’s have a shared training opportunity. I can see some of those things happening. We need to make that more - - -

That sounds very promising?---Not an exception, rather that it’s the norm. That’s what we should be aspiring to.

COMMISSIONER GOODA: I suppose my question, the next one, is, in your role as the complaints handling process, for instance, how do you think you empower – like, you will hear me talk about empowering communities, but I also think you have got to empower local bureaucrats, if you like?---Yes.


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And child protection is probably one of the most fraught sections of public policy in Australia. How do you actually give, say, people on the ground the capacity to make decisions that they need to make to ensure the welfare of children, which might be a little bit outside the framework that you might have developed?---I’m not too sure what the specific question you may be asking there.

Like, how much autonomy would someone in Alice Springs have to make a decision?---I feel I have been an operational practitioner if my time - - -

Yes. Okay?---It is several years ago now, and I don’t know if I would feel well placed to offer you a contemporary view about how our practitioners feel whether they do or do not have the autonomy to make decisions. Certainly from my position, I can see that they do and I can certainly see examples of cases that we have looked at where they have absolutely made decisions in the best interests of children and actually tried to stretch some of that elastic to make it work. So I do see examples of it occurring.

MR MORRISSEY: Perhaps I could just go to some specific governance issues, one of which arises from Commissioner Gooda’s question. Could we just have brought up on the screen exhibit – sorry – attachment LW7 to Ms Wharburton’s report. This is a half yearly report, and I would ask that we go to page 0057 of that document. And there’s a table. It’s table number 8. If we could zoom in on table number 8 at the top there please. Now, can you just explain to the Commissioners: this is a table concerning the address of complaints. Wait a moment. Yes So this is complaints of abuse of children in care that you have in front of you?--- .....

Yes. And I just ask you to take you through, explain that. Do we have something in the order of 700 complaints? 736, is it?---That is correct, but only for that particular time frame, so that is July to December 2016. So they are concerns that have been brought to the agency’s attention about concerns for the safety of children in care.

Alright. Can we just work through what happened with those complaints. It appears that 340 complaints were, in effect, dismissed, no abuse or neglect found. That’s a positive finding; yes?---Yes.

That tells you that there has in fact been an investigation that progressed through. You have 32 complaints that are substantiated; is that correct?---Yes. According to that data.

Likewise, that means that it has progressed through to an outcome. And what does substantiated mean in that context?---Substantiated means the threshold for harm pursuant to the Act has been met. Section 15, if I’m correct. Substantiated harm has occurred in those 32 cases.

Now, but then you have approximately 350 which fall into a less clear outcome. Did not proceed to investigation, 198. What does that mean, and what sort of matters or what’s the range of matters that fall under that heading, “did not proceed to


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investigation”?---So the name, as it suggests, isn’t quite accurate. Well, it is, but I will put a caveat around that. There was a policy change in the agency. I couldn’t give you quite the timeframe. But sometimes a child can come to the attention of Territory Families multiple times in a very short succession of time. Currently every time a notification is received, a new child protection case is created. So you could find children have several open cases at a time. That’s not a particularly efficient – administratively efficient way to manage exploring the concerns. We want to be sure that families aren’t receiving five sets of practitioners to come knocking on the door. We have got to respect their rights as well. So “do not proceed to investigation”, I would expect for the large part of that is we will keep one investigation case open but shut one down by calling it “do not proceed to investigation”, because we are going to use one of the cases to explore all of the matters concern concurrently.

What is “no recorded outcome”?---The matter remains under investigation.

Does it mean that anything is actually happening in relation to it or simply that an investigation has been opened?---It would absolutely mean that the investigation has commenced, but it still remains in progress.

You appreciate, don’t you, that there can be a difference between an announcement that an investigation has been commenced and any worker actually – any worker having capacity and time to do that. So under the auspices of either “did not proceed to investigation” or “no recorded outcome”, are there cases in there where these figures don’t give you any oversight as to whether any progress is happening?---So I think the question you’re asking of those particular matters – it will tell me that there is a case open. What this data will not tell me is has the child been seen in that case; has the family been talked to.

Yes?---Is that what you are trying to establish.

It is. Yes. It is?---Yes. This particular data won’t give me that story.

No. As a governance issue – what I am asking you is this, really: that one of the functions among the many functions that governance has is that it allows you to arm your managers on the ground in the units with knowledge whether their workers generally are keeping up with targets; is that correct?---Yes.

And there could be all sorts of reasons why a particular office is either well up with its targets or falling behind, to some extent; is that correct?---Yes.

Sometimes it’s because there’s just a lot of work on in an area. That’s a general term, but that’s the case, isn’t it?---Yes.

Sometimes it’s because you have staff shortages, either you haven’t filled positions or you have got staff off sick and so on; correct?---Yes.


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And there may be occasions where you have got underperforming staff on one or other bases?---Potentially, yes.

Yes. Alright. So from a governance perspective, you’re not able to advise the managers of whether or not their workers are keeping up with investigations such as this, simply based on those figures; is that correct?---I think the caveat I would like to offer the Commission is this: this is a very discrete subset of investigation cases. These are concerns for the safety of children who are already in care. This is not offering the data around investigations where children are still with parents and we’re needing to investigate those concerns. So this particular data set will not provide managers with a complete picture of how the volume in their office or the performance against that volume. This is a very discrete data set.

I guess what I’m – I accept that each individual table will have its specific applications, as you point out, but from a governance point of view, the data that you have gathered in this, it’s opaque from that point of view, isn’t it? You are not able to tell people that the investigations are being pursued in a timely manner based upon that material?---Not in this particular table. Keep in mind this isn’t – so in my statement, I refer to – let me see – internal reporting, paragraphs 28 through to 38.

Yes?---They’re the data reports that would go to managers that will break it down to a more quantitative level, individual indicators. That’s the reporting that will give office managers much betters clues as to how they’re performing. The annexure you have got here before me is my division summation of some activity. It’s a bit of an analysis of performance. It’s not the data set that goes to office managers per se.

I understand it’s not general in the way you point out. Alright. Thank you. Now, just the – back in 2010 – sorry. Just excuse me one second. Alright. Yes. Now, back in 2010 the Growing Them Strong Together report made a couple of recommendations that were responding to situations that prevailed at the time. There was a perceived major backlog. You recall this was the backlog of 2010 referred to by Dr Bath in various Children’s Commissioner’s reports over time. Now, so that report at 7.2 recommended that Northern Territory families and children develop a strategy to clear up the backlog of unallocated child protection investigations; recalling that in those days there was a real issue about unallocated?---Mmhmm.

Alright. And that another recommendation was that an independent body be auspiced to review investigations into allegations of abuse in care undertaken by the department; remember that? And did that happen?---Either of those?

No. The second of those?---The second. Can you repeat that?

I will take you to backlog in a minute?---Can you just repeat that.

Yes. Sorry. That there be an independent body auspiced to review investigations into allegations of abuse?---Correct. Certainly, again, in my statement, I refer to


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pursuant to section 84C of the Care and Protection of Children Act we notify the Children’s Commissioner of substantiated abuse in care matters.

Yes?---And the Commissioner is well within her legislative remit to then investigate as she wishes to do so.

And you are aware of the expansion of the Commissioner’s powers in 2011, or May 2011. Alright. Could I turn to the issue of backlog and of data collection, if I could, here. The Children’s Commissioner recommendations concerning the backlog were found and if you bring this up – it may take a moment to bring this up, but the Children’s Commissioner recommendations, 2013/2014 at pages 39 to 40. So what is going to come up on the screen here is just a quick quote from that body. While that’s coming up, I just wanted to ask you. You have internal mechanisms for oversight, being the conduct of practice reviews and case reviews, and also analysing performance data for the purposes of identifying trends. That gives rise to some registers that you have seen. There’s the monthly performance reports which you have seen copies of?---Yes.

Alright. Thank you. And a tool that you use in assessing performance is the business data provided by the business intelligence team, and you have made reference to that at paragraph 31. Now – I think – so that’s at page 39. Could I just have that forwarded, please, to – I see. So the recommendations that I have referred to are found at the bottom of page 39 and 40, but we wish to go on to page 44 and then on to 45, if possible. I’m sorry. Pardon me. Yes. We need to go to 2014 and ’15 report on those pages. My apologies for that. We just got the year wrong. I apologise for that one. Alright. Well, while that is being brought up, could I just proceed a little bit further with the sources. So the data produced by the business intelligence teams relied on by the governance division to identify the trends and measure progress against the various indicators as you have set out at paragraph 30 and you used that – Territory Families uses this to inform its strategic planning and its decision-making. Now, you’re familiar with the reports that I have referred to, some of which were shown to you in conference this morning?---Yes.

Could I just ask you to have a look at what’s come up on the screen here. This is a quote from the Children’s Commissioner reports in 2014 to ’15. Now, if you look at the bottom of the page, I will just take you to this paragraph. It notes some backlog, previous backlog criticisms, if you like. And it says:

In previous years the child protection system had been criticised for having a large amount of child protection investigations not commenced.

And it goes on to give some details about that. Then it says in the last sentence:

In the following year the DCF worked to reduce this, creating a specialist team of experienced workers to address the problem with some success.


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Now, I will just stop there for a second. And you are familiar with that historical fact, that there was a backlog, and that DCF dealt with it by formulating a team, in a sense, putting persons on the ground to deal with the issue - - -?---Mmhmm.

- - - and reduce the backlog by simply manually dealing with the cases that were there. Could we just go to the next page. The – and it seems to be a criticism:

However in 2014-15 there are an even larger number of investigations that, having been officially flagged as commencing, but not been resolved within the expected time frame.

Now, were you familiar with that phenomenon?---Yes.

That phenomenon appears to have been that – this is my term, and feel free to correct it if you wish, but it seems that a box ticking manoeuvre had occurred whereby in internal data it was flagged that an investigation had actually commenced, thus reducing the backlog of failures to commence. However, it simply seems to have transferred the problem. Now, are you familiar with the problem that existed at the time?---I am aware that we have needed to address the growing demand of the number of open investigation cases at a time. But certainly just taking a step back, where you propose it might have been a box ticking exercise to officially flag as commencing, the staff on the ground can only denote in the community care information system that an investigation has commenced when we have made reasonable efforts to make contact with a child. So for it to be flagged in the system as having commenced, we have commenced – we actually have commenced an investigation.

Yes?---The cases that you’re referring to here that have not been resolved: policy does denote that a child protection investigation should be completed ordinarily within a 28 day frame.

Well, that is the issue I was wanting to get to, if I could. But just before we do that, could you just allow me to do something administrative. I tender that report.

COMMISSIONER WHITE: Thank you. Exhibit 493.

EXHIBIT #493 CHILDREN’S COMMISSIONER REPORT 2014-2015

MR MORRISSEY: So - - -

COMMISSIONER WHITE: Are you confident we don’t already have all the Children’s Commissioner’s reports.

MR MORRISSEY: I’m somewhat confident that you don’t have this one.


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COMMISSIONER WHITE: Alright. Thank you.

MR MORRISSEY: But could I undertake to the Commission that we will research and we will rectify if we have tendered it for the third or fourth time.

COMMISSIONER WHITE: It doesn’t matter. Don’t do that research, Mr Morrissey.

MR MORRISSEY: I won’t do it now.

Sorry, Ms Wharburton. Now, just returning back, could I ask now that you have provided to you, and perhaps placed on the screen too, a document which was annexed to Mr Twyford’s – one of Mr Twyford’s statements. It’s LT53 and it’s at point 0321. This is a monthly performance report for March 2017. If you just wouldn’t mind just having a look at that and familiarise yourself. You have seen that before, that document. Now, if I just take you through, just take the Commissioners through the process here, because it will assist. It’s a bit step by step by step, but you’re the helpful person who can do it?---Yep.

Now, there are a number of stages to a Territory family investigation and delays or issues can arise at each one of those stages. If we step through those and you can indicate to us what metrics or how you collect data that’s relevant to those issues at each step of the way. But the background against these questions is the background that the Commissioners have referred to and that you have referred to, which is an increasing number of notifications, if you like, an increase in business over time?---Yes.

A great deal of demand on frontline staff and on those who manage those staff?---Yes.

And ongoing demands on the whole institution to provide suitable workers, to train those workers, and to retain them. So it’s against that background of high demand, high stress and hard work, and that’s why I’m putting it in that framework. Now, is it the fact that – we deal with intake, first, if we could. The number of notifications since 2011 or so has increased by roughly 3000 every year; is that correct?---Mmhmm.

And Territory Families staff are thereby placed in a situation of facing just a large annual increase and that’s a working reality?---Yes.

That’s – one of the consequences of that is that they may not have time to perform all of their duties; is that correct?---Are you expressly referring to intake at that particular question?

Yes. Yes?---Intake are performing their duties. Certainly every call that’s received is attended to.


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You are aware of the one piece work flow approach?---I have heard of it by name and I have a humble understanding of it.

I think it has been explained that – the Commission - - -

COMMISSIONER WHITE: We had it explained.

MR MORRISSEY: - - - had it explained yesterday. So – but just in terms of the demands on staff, you’re not familiar with it, but do you know how long a staff member is required to spend upon a notification once they have determined that it needs to be investigated?---I’m sorry. I have done intake in my time, but it has been quite a long time.

That’s okay. I won’t take you back to that dark place. We will continue with the questions. So all reports do come into the centralised agency. That’s the central intake team; is that correct?---Yes.

Now, on this document here, could we go to page 321, so that’s the page to be on. Row number one is headed number of calls. Could you just have a look at that?---Yes.

Now, if we just look at the column for the 2015-16, that’s column number five, that identifies the total number of calls received by intake for that year; is that correct?---Yes.

That figure looks like 28,078. How is that figure calculated?---I believe, not quite being an expert in that particular area, that there is a queue master functionality. I hoped that might have been something Mr Linggood talked to you yesterday, Commissioners.

COMMISSIONER WHITE: Yes. He did. He did?---My understanding, and I’m not too sure if it is 100 per cent correct, to be honest, but the queue master allows us to record how many hits, for want after better word, we are receiving. So my understanding: that’s literally a tally of how many calls we are receiving.

MR MORRISSEY: Alright. If we go down - - -

COMMISSIONER WHITE: And I think Mr Linggood - - -

MR MORRISSEY: Sorry.

COMMISSIONER WHITE: - - - indicated, if my recollection is correct, that you may have the same person ringing about the same matter a number of times?---Potentially.

There’s no possibility of filtering that out?---No, Commissioner.


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So they’re quite raw figures?---Yes.

MR MORRISSEY: Moving down to the next category, you will see total notifications received. Do you see that category?---Yes.

And if you look over to the same column, same – I’m going to stay in that year for the whole time – the total notifications received is 20,452, which leaves a sort of a gap of 8000; is that correct?---Yes.

Do you have any visibility through your governance devices of what that 8000 consists of?---No. This is the data I believe we would be looking at. The point of difference of 8000 between the two is the first number you cited 28,078 is any call to central intake. It could be a child in care phoning up saying, “Can you get hold of my case manager for me?” Whereas of those calls 20,452 have been assessed to constitute a child protection notification and that commences the recording process.

Does the 8000 potentially contain trivial notifications?---It may well do. Yes.

Do you think it would be a useful thing to have some visibility of those – you have heard – perhaps I could just ask you: you have heard of that term “cumulative harm”?---Yes.

And you agree that cumulative harm really can make an incident that’s quite trivial in itself actually be quite significant if it’s cumulative upon other abuse or other difficulty. So do you agree it could be useful to have some visibility of that 8000 bearing in mind it might contain allegations that, on a one-off, look trivial, but aren’t?---Certainly if any of those 8000 calls that are the point of difference between those two figures, if there’s any element of concern for a child there are a number of ways we can still record it so it doesn’t get lost and it doesn’t becomes trivialised. We might be able to record it against a child’s open case, for example, or the central intake may take the information and email it to the client’s case manager, for example. I think there is still a way of capturing the intent. If it really has to do with a concern for a child we are still going to make sure that that is documented in a way.

Is there a way of covering that from a governance – I mean, I understand – I’m not grilling you on whether the workers are doing a good job, here, but really on whether they’re able to log it somewhere else, but from a governance point of view it appears as if you don’t have any visibility into that 8000?---Not to really unpack it with much detail, no.

Could I just go a little bit further now. Could we have a look, please, at an annexure of yours. Just one second. Sorry. Yes. Could we please have a look at JL7. This is – sorry. This is an annexure to Mr Linggood. This is the central intake functional analysis, final draft. It’s the PWC report. Could we just go to page 17 of that document, please. Here, you can see here that there is at the top of those charts there, a gap with a question mark in it. And that’s really an area that you don’t – and Mr Linggood was asked about this, but would you agree with this: you’re not capturing


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the totality of the intakes to the tune of that gap?---I think what that table is demonstrating, just cross-referencing back to the previous table, so the number of calls, I think it was. The dotted box with the question mark in it is demonstrating we are unable to say – we might have actually received 32,400 calls to intake.

Yes?---That box is denoting there is still information coming into intake we can’t numerically count. But, again, coming back to what I earlier said: if there’s anything that perhaps a team member may receive about a child, that doesn’t mean that information is lost about that children; it’s just another way of it coming into the system.

Alright. So what – and could you just indicate what those ways are?---For information to come into the system?

No. No. For recording the information. So we have got the 8000, which you have pointed out. We don’t have any governance type insight, but you have indicated there may be some other ways in which it is recorded?---Yep.

What do you say about this? This is a further category, isn’t it?---Further?

Possibly up to 32,000, as you mentioned, sorry, maybe?---Yes. So certainly I’m not familiar, and perhaps Mr Linggood yesterday articulated it way better than I possibly can, but, for example, what might come into a team leader’s inbox is a communication from another team leader in ..... and it could be we’re concerned for the whereabouts of a child in care. Should intake receive any concerns about that child, here are some plans to respond to that. So I think this particular table for PWC was just trying to say in terms of the overall demand of what Central Intakes deals with on a day-to-day basis we haven’t quite got an accurate integer to describe the volume.

Alright. You are aware that there has been – well, one might say that the intake system has been reported in previous reports, the Tolhurst report in 2009, and there’s one by Bromfield in 2013, noticing issues concerning intake. In Tolhurst, for example, it was said there was a practice:

There has historically been batches of low-priority cases which have had to be written off without being outcomed, and, in fact, without ever actually having a formal record raised on the CCIS.

Now, were you familiar with that phenomenon?---Sorry. Come again? The phenomenon of - - -

Well, of batches of low priority cases being written off?---Written off is quite strong language, but certainly there has been a history in time where there have been cases that haven’t been able to be attended to as you would expect in following the true policies and procedures of the day. But my experience in the agency, there would still always be an assessment of any matter before a case closure occurs. So we may


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instigate contact with education, for example, or a health clinic to say, “Look, can you give us some contemporary information about this child to inform our decision making.” If anything came out of that contact that suggested, “Actually, Territory Families, you still need to be involved,” we would have kept going.

Do you agree with this: it would be desirable if you had better insight into those – what I’m calling the 8,000 – on the one hand and what’s identified on page 17 in the document before you on the screen on the other hand, for governance purposes, because it may be that in an overworked office where, for all sorts of reasons, staff may not have capacity to properly process possible notifications, some may well be falling between the cracks?---I’m a little concerned that there may be an interpretation of that 8000 as being children who need a service who aren’t receiving a service, and I don’t think that is so.

No. No. I’m not putting to you that that is the fact; I’m putting to you that it may be that you’re missing – that there may be some that are missed which are in that 8000 and you don’t have visibility because the governance tools are not getting you there?---No. Every call is assessed. That 8000 that aren’t being captured as a notification truly are matters that either may not be Territory Families’ business, so it could be a mum or dad calling up for support. We might point them in another direction. Or it can literally be a child phoning up, going, “I can’t get hold of my case manager. Can you do something about it?” The 8000 there, again, just repeating my earlier comment, any call to intake is assessed; it just means there was a gap between what was a call to intake versus what was a call that suggested a statutory action then may need to occur.

Alright. Well, what you are saying is the safeguard is that a worker has turned their mind to the question of each call?---Absolutely.

But from the governance point of view, what I am putting to you is that an overworked worker may make a mistake or forget to finish it off?---Of those, I don’t believe – no. Not at that point. I don’t believe so.

Alright. Now, let’s move on to the next issue. The next step after intake is assessment of the intake. That can have four different outcomes. As we know, practically speaking, the two most – or the predominant outcomes are to make a child protection report or to take no further action; would you agree with that?---Mmhmm.

Would you agree with that? Alright. Now, I just wonder if we could have back on the screen the monthly report; that’s the one that was at .0321. Alright. If we look at that report, do you see the section saying Child Protection Flow of Notifications Received?---Yes.

Do you see that part there?---Yep.


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Now, you can see that at row number 2, proceeded – the category Proceeded to Investigation – there were 7,858 investigations, I quote, proceeded in the year 2015 to ’16. Does that mean that out of the 20,452 notifications, that 7,858 were screened in to be investigated?---They proceeded to investigation. Yes.

Alright. Thank you. Now, the next row down says Investigations Commenced. That’s 7802. That’s the figure of investigations actually commenced, is it?---Yes.

And the gap of 56 is investigations that have not commenced; is that right?---Mmhmm.

And what’s the range of reasons why that – you might have 56 that are not commenced?---Yes. Look, I – again, it’s my understanding the data for this particular item will be drawn done on a particular day. And it could be that – did you say 58?

56?---56? Some of those may have just come in that day, have just gone on the system to say, “Look, we need to proceed to investigation,” but I would suggest a good size of those might be just caught up in the movement between central intake to allocate to a region for then an officer to go out and commence investigation.

Alright. There’s one little clarification that – I might park that. Okay. Now, I just wonder if we could put up briefly – we will return to this document, but could we put up on screen at the moment document 0216.0001.0128. And this is a table that indicates the priorities within setting the time within which investigations must be commenced. You flagged this to the Commissioners earlier on. So P1 is an investigation that must be commenced within 24 hours; is that correct?---Yes.

P2 – is that not coming up on the screen? Sorry. That’s coming up on the screen now, so – but, anyway, I think you will know it well. P2 is an investigation to be commenced within three days relating to little kids under 2?---48 hours, I think? Is it 48?

Sorry?---No. It is three days. My apologies.

Yes. A P3 is one to be commenced within five days, and a P4 within 10; is that correct?---Yes.

Now, the metrics in relation to this to be found in the second half of section two, the child protection totals. Sorry. Just take a moment. We will go back to that document in a second, but the one that’s on the screen now, you see at the top there - - -?---Yes.

Alright. Thank you for that. That’s just confirming what those times are. Could we just go back, please, to the monthly report, monthly performance report that was just on screen a moment ago at 0321. Now, here, we have got some metrics, one might


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say, starting at – do you see about halfway down the column there is CAT1, category one?---Mmhmm.

So here you have category one, Investigations Commenced Within Timeframe. And it suggests that TF has not met its target of 100 per cent from 2014 to the present. Now, that’s a very broad comment that I make. Just have a look there. I understand that. But can you just indicate the sort of strategies that Territory Families has or is currently implementing to raise and increase compliance?---For that particularly indicator?

Yes?---Look, I’m not an operational manager. So I really don’t know how individual work unit managers are managing this, but certainly my experience of working in front line in times gone past is that they – managers push and pull their resources constantly to make sure that they have got a responsiveness to send practitioners out the door to commence an investigation with timeframe.

Yes. Now, let me just be clear: you’re not being grilled upon why things are working or not working and so on, but it’s really from a governance perspective and how – what sort of visibility you have got of those things. Is it the department’s policy though that all investigations regardless of their priority must be completed within 28 days? That’s policy?---Policy sets that as a target, but certainly I don’t believe policy articulates it to be a flatline expectation you must finish an investigation in 28 days. Commissioners, if we haven’t seen a child, for example, we can’t possible finish it in 28 days, or if we have yet to interview the family. If we have yet to even locate the family, we can’t – we need to maintain an investigation open until those integers of a quality investigation have been completed. It is aspirational, though, for it to be done in 28 days.

Well, it’s a bit more – well, I won’t argue about aspirational. But the point is this: what you’re saying is there are often – very often valid operational reasons to go beyond the 28 days; correct?---Right.

But there could also be other explanations for going beyond the 28 days, and that is that you have got an overworked, crushed staff - - -?---Yes.

- - - in a particular office; correct?---Yes.

Now, how do you know from a governance point of view when that is happening?---Certainly the indicator we would be observing is the growth in numbers of open cases where an investigation outcome hasn’t been recorded in 28 days. So that’s on the screen there, total investigations closed – sorry. That is closed within 28 days. The indicator we would be looking for is those not closed within 28 days, and looking for the growth in those.

Alright.


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COMMISSIONER WHITE: But, presumably, if you see that, there would be somebody – I’m not suggesting it would be you, of course – but it would be someone up the line from the regional or the local offices manager who would surely contact that office and say, “Are you struggling? Do you need some more resources”?---Yep.

Is that – would that happen?---Yes. Certainly of the report that is on the screen now, there are multiple recipients of this report, so certainly I think office managers receive it. I would be very surprised if they didn’t. But certainly the regional executive directors would receive it. There would be lots of sets of eyes looking at this data to go, “How are we flowing and trending over time?” And certainly I would expect office managers and regional executive directors who see the trends going, “We are growing”, would then be responsive to go, “Well, how are we going to implement strategies to change that trend?” That would – that ought to be happening in regions, but certainly that’s where the conversations should start to also come up in the agency, to maybe ask for more staff or implement other strategies to help them meet that demand.

And where would the line travel? I’m assuming not to you because yours just – not just, but yours is a governance oversight?---Yes.

So you’re not - - -?---And through the operational reporting lines, I would expect, Commissioner, that that conversation would be actively happening.

Yes.


COMMISSIONER WHITE: You are keeping an eye on the time, aren’t you?

MR MORRISSEY: Look, I am keeping an eye on the time. The witness is giving useful and relevant evidence. I do appreciate that - - -

COMMISSIONER WHITE: ..... suggesting that it is not not useful.

MR MORRISSEY: I know that. May I just – I will press fast, but we have some significant cross-examination to deal with as well here. However, we will – I shall proceed. If we could just go to the Children’s Commissioner report that was for 2015/16. I believe it has already been tendered, Children’s Commissioner report for 2015 and ’16. Could we go to page 45 and figure 7 on that page. Would you just have a look at that. This is a heading Timeliness of Investigation, and you will see that there are some comments made on the left-hand side. Do you agree that the thrust of that data and that graph – and take time if you need to stop and look at it, but I understand you’ve seen it. Do these figures seem accurate to you, the figures that are set out in figure 7 on page 45?---They’re translating into percentages.


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They seem to show a completion rate of 50 per cent, as best I can - - -?---Yes. Within 28 days. Look, the Commissioner receives data from Territory Families as I explain in my statement. So it must be correct.

Accepting those figures, you would agree that if – however one categories the 28 day limit, it’s not merely a pipe dream, and I understand you use the term “aspirational”, but it is, in fact, a policy. You would agree that a 50 per cent rate, even given operational realities, is unacceptably low?---Yes. So certainly – yes, it would be low. The context I would like to offer around that, though, is this data is being pulled out of the information system, the community care information system, if a person has not manually entered a substantiation outcome or no abuse found. I would like to offer the Commission a caveat. It doesn’t mean that the investigation in its physical activity hasn’t concluded; it’s just that the point of entering a conclusion hasn’t gone into the system.

COMMISSIONER WHITE: The signing off hasn’t occurred?---Yes, the administrative, so - - -

Have you got any basis for making that observation?---Certainly, I think as some of the questioning has alluded to, Commissioner, staff are having to try and keep up with increasing demand, and certainly I have heard anecdotally that sometimes the administrative tasks to finalise an investigation are left to a later time, focusing on the immediacy of getting out the door and responding to the children right there, right now.

So it may well be that it actually gets forgotten, they don’t get back to it, or at least not within the period the Children’s Commissioner - - -?---That’s a timeliness issue, Commissioner, but certainly, look, I’m not dismissing there might be some that absolutely have not happened or may have been a little bit forgotten over time, but I would like to stress that the physical activity of an investigation, in a large part of those, I would reasonably expect has been done. It’s the administrative data input that would be causing some of that lag.

MR MORRISSEY: Commissioners, may I just raise a management issue. It appears to me that, in justice to the witness and those others who seek to question, we are not likely to finish today. It may be that we would request the witness come back in Darwin. I understand she, as others, are booked on a flight.

COMMISSIONER WHITE: So there’s a certain tension running around the room, which I can’t tell, but I am sure there is.

MR MORRISSEY: No. I think, well - - -

COMMISSIONER WHITE: We can do that. We can do that. Even if it’s not very much longer, I think it would be better to reflect upon this more carefully, rather than try and truncate it.


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MR MORRISSEY: Yes.

COMMISSIONER WHITE: So we’re happy to do that. It does crowd Darwin. As Commissioner Gooda observes, it does crowd Darwin, but - - -

MR MORRISSEY: I suspect that my questions will be shorter as a result of having a little further time to reflect in Darwin. It may be that we would have the cross-examination there, and it might be that we wouldn’t need more than three-quarters of an hour or even half an hour in Darwin. As long as we still use the time that we have now and press through.

COMMISSIONER WHITE: Yes. We do need to allow these people to go at 4 o’clock, though, Mr Morrissey.

MR MORRISSEY: No. I agree with that. I raise it now because I don’t want the witness to be under pressure, and she also is on that flight.

COMMISSIONER WHITE: She probably does feel under a bit of pressure, however?---You can tell?

Just a little?---Yes.

So do rest assured that we will leave at 4 o’clock.

MR MORRISSEY: Thank you. We did want you also – if we could now please go back to the monthly report. There’s just a matter of detail here which we couldn’t figure out, and we will just ask you to do it for us. When that document comes back up, we will just ask you to have a look at footnotes number 6 and 7, so if we just zoom in on footnote 6 and 7. If you are just able to explain what is meant by counted child protections remaining open despite a recorded investigation outcome. Tell us if you want to look at something else as well.

COMMISSIONER WHITE: Might just like it a bit bigger perhaps?---It’s quite small. So the case is open. We’ve recorded an outcome where the investigation end date is older than 30 days. I presume, if I’m interpreting that caveat correctly, currently Commissioners, we keep child protection cases open. We have done all the investigation work. We have denoted whether we’ve found harm or haven’t found harm. But currently there are being cases kept open to deliver strengthening family support services to children and families. So they’re typically the families where there might have been a high to very high risk of still safety concerns to the child. They’re being kept open under a child protection investigation case. Quite honestly, until we modify, which is very imminently about to be completed, the creation of a strengthening families case, and then all of those will go into that new case subtype. So my understanding is we’re keeping them open to continue servicing the family, but the investigation has concluded.


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MR MORRISSEY: But you think – and I think you’ve answered my next question, though, because there is currently going to be a new type of case that is available to open in those circumstances?---Correct.

And you won’t have this - - -?---It’s imminent, I think, if it’s in the next month or so.

Alright. Thank you for that. Just coming back to the table again. The monthly report, if you just have a look at row 6 in section 3, the monthly report has got a substantiation figure. Do you see that?---1593.

Yes, correct. Do you see that, and then you’ve got a substantial – then below that there’s another substantiation rate over finalised investigation. So the rate of substantiated investigations is 23.9 for that year; is that correct?---Of the total number of investigations finalised, the proportion of which we concluded a substantiation is 23.9, that’s correct.

Yes. Very well. Thank you. Now, could I just ask this: as a rough guide will that indicate the number of substantiations that are likely to occur from the notifications in 2015 and ’16?---Can you please repeat that.

Just using it as a rough guide, is it likely you have 23 per cent or so per cent, 23, 24 per cent number of substantiations likely to occur from the notifications in the year 2015 and ’16?---Are you asking – yes. So certainly my experience at the NT and the national level, it does hover around that 20 to 25 per cent indicator. So, yes, it’s not uncommon.

Alright. Well, applying that rate to another figure, the total investigations screened in, we had a figure of 7858 there for the year 2015/16. And this is – there are a number of assumptions here, of course, but applying that figure of, say, 24 per cent, 23.9 per cent, you would end up with 1878 substantiations. I’m throwing these figures at you, but did you get a sum of approximately 1800, perhaps over 1800 substantiations? Now, just bear that figure in mind. Of the investigations completed in time, in 2015/16, this report doesn’t seem to capture how many of those were priority 1 investigations. Would you agree with that? Just have a look and see if you agree with that?---We’re not capturing an integer about priority rating upon conclusion of the investigation in this report, no, we’re not.

It doesn’t appear to capture how many substantiations occurred in those investigations. Do you agree with that?---By priority rating,

Yes?---No, the data is not doing that, no.

So it’s hard to tell from this data whether or not the most urgent cases were given priority or whether it was the simple cases that were given priority. I know there might be a practice that you would give the urgent ones and not the simple ones, but on your governance data you are not being told that, are you?---I think the performance report is – the priority rating is really how quickly the staff need to get


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out the door, and I think the performance report meets that need. Once you’ve got out the door and satisfied that priority rating, the priority rating doesn’t need to be wrapped around how the investigation was concluded. It really is at the front end, at the start of investigation.

COMMISSIONER WHITE: How quickly you get going?---Yes, exactly, yes.

MR MORRISSEY: But it’s a good indicator, though, isn’t it, of a significant risk of harm?---Yes. Certainly if you are priority 1, the information we are getting at the time of intake is – you know, there is an imminent risk of harm, but certainly if there is an imminent risk of harm, the important measure is did you get out there quickly.

Of the backlog of cases that currently exists, and I understand the term backlog has got a variety of uses – I am not meaning to use it in a cheap, pejorative way, but just in the uncompleted cases manner. Of that backlog of cases, what processes do Territory Families now have to monitor the cases that are delayed, the ones that have passed by the time? What governance insight have you got into that?---The performance report is giving good indicators of where we have not been able to commence investigations or conclude investigations in a timely way. I would absolutely be sure there’s a lot more intelligence in situ on the ground in offices, as the team leaders and managers are trying to manage the allocations and manage the priority response times. I would hazard a guess, Commissioners, in terms of how it looks on the ground, an office manager is going to give you much better intelligence on that. I can only really rely on a more holistic governance measure. This performance report really is, in large part, what my team are relying on at a broader agency level.

Yes, alright. Just – so you took issue, I don’t mean that critically, of it. But you raised the issue that perhaps a category 1 rating is not something that you would necessarily bind as an important characteristic of every investigation, such that it should be statistically recognised. But in terms of categorising important ones, you understand the dilemma I put to you a minute ago was the possibility, on this data, that completed cases in one office – just imagine a stressed office where there had been a change of management, or there were difficulties – short staff and so on?---Yes.

You might imagine a situation where you got an over focus on finalising the easy ones – by easy, I mean administratively easy, I don’t mean – but so how would you guard against that situation? Do you have a governance way of looking at that and, if you haven’t now, how might that be improved?---There’s lots of elements to that question.

Yes, there is?---Could you assist, unpacking it a bit.

Of course. Well, I can unpack it. So you haven’t – you don’t seem to have any visibility of the issue that I’ve raised?---Yes.


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How might you get such a visibility?---So if I’m understanding your question correctly, you’re saying we may not have the visibility on are we getting out the door quickly enough.

No. It’s which investigations are getting finalised as a priority, in a busy office where some are, and some aren’t?---Which are getting finalised in priority. I’m not too sure it’s about the finalisation, from my perspective. For me, how a work unit will be managing the ebb and flow of an investigation or a notification is getting out there and getting started. How we wrap them up, I’m a bit worried that we’re talking a little bit at cross-purposes maybe here, but - - -

You’ve got the 28 day policy and you have indicated there are sometimes reasons why that can’t be kept?---Yes.

Okay. Now in an office you might have one of those offices such as the one in the Children’s Commissioners’ report where - - -?---Yes.

- - - 50 per cent aren’t meeting that target. The question is: 50 per cent are, which 50 per cent? Is it the easy cases or the desperately busy cases?---Okay. I see – I see what you’re - - -

Is it a mixture?--- - - - saying. Have we got a .....

- - - have you got visibility on that question?---Which – which ones – yes, hang in the mix.

Yes?---No. Look, I can presume it can be crafted, if you’ve got these integers on the monthly report that just says what was the priority response allocated to investigation, where’s the status of the investigation now. I think all we need to do is draw all those pieces of information together. It is just that it doesn’t appear in this report. I – I would hazard a guess it’s achievable to do.

Yes?---And I know that this particular report is one piece of intelligence, but there’s also the work unit summary reports, that do go out to the offices, that just also give a case by case picture where individual cases are at. So I think a combination of those two, together with the client information system, would provide a pretty robust picture that would assist office managers to go, “How are we travelling here? Are we make sure we are servicing these children in order of priority? Are we responding in a way that meets the immediate needs of the child?”

Could I ask two final questions about that side of the backlog equation. Do you have an ability, from a governance oversight perspective, to identify officers, particulars regional offices or like offices, that have a particular significant backlog problem?---Yes, certainly. The monthly performance report will take us to a regional level of data and it will also break it down to office level. And the work in a summary – summary report mentioned in my statement also can break it down into individual cases by individual officers. So that intelligence is there.


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I think you indicated in conference earlier on – I would just like you to assist the Commissioners here – where you do identify – where an office is identified as being in some trouble meeting those targets, what sort of supports are in place that Territory Families has to address acute backlog type issues on a region by region basis? What sort of support can they give to an office like that, and what sort of support do they give when that happens?---So it’s my experience that regions – as we talked before, the reporting line will be more through an operation line, so regions are usually quite constructive in coming up with a lot of solutions themselves on how to manage it, but certainly when they are feeding up the line, it just says, “Look, we are growing beyond our capacity to respond.” Certainly, some examples that I’ve seen have been the creation of small mobile teams that they can deploy to areas of – of demand. Certainly, there has been documentation that has been approved that just says the policy would ordinarily expect that you, in closing an investigation, complete document A and document B, to streamline administrative case closure, can we maybe converge that document into one. To reduce red tape, I suppose, to speak. Certainly, if it’s a case of approving overtime, I’ve seen that happen. I’ve seen staff who are professionally experienced that are no longer in front line but, you know, I’ve got some practitioners in my team that I could say, yes, we will happily help out, look at some cases. “Based on what we see in the case, we think it is reasonable that you close it.” There’s multitudes of things that we can do and have done over time to close.

Just excuse me. So, Commissioners, I’ve got a couple of disparate issues I can cover in the next few minutes. There’s a solid area that was coming next, but it will take us over time, so I want to move, if I could, quickly to the recommendations register. I just wonder if that – if a copy – is – just excuse me. Could I just ask to have, on the screen, document 0067. Thank you. Could we go to the bottom of page 1. And I will just ask you to – just ask you to explain to the Commissioners what the nature of this document is. What is a – what is a recommendations register and what part of it is this?---Yes. This is very small writing on this particular scene. So what I think I have before me is the aspect of the recommendations register that refers to – thank you – the internal practice reviews done through our division, which are either child death reviews – so, for example, when a child in the care of the chief executive has passed, we will conduct a reflective practice review to assess the services that were delivered to the child in their lifetime of being a client of the agency. There’s also a combination of case reviews in there as well, and they’re also self-instigated reviews that we conduct. For example, if an office says, “Look, we have got a case, we would like an independent set of eyes it, would you take a look.” It might have been a case that we have instigated based on a complaint that we’ve received. There’s a whole bunch of ways we can conduct that business, but this portion of the recommendations register is from those internal practice reviews that we have completed.

Yes. Alright. Now, could we – I will just get, ask that we zoom in on the bottom line. There are two columns in the middle that have got text inside them. Correct – they’re correctly highlighted. Could we just have those up. Now could you just explain, please, to the Commissioners, here we have two – a recommendation arising


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out of a child death review, and if you just look at the column on the left, that falls into the column of recommendations. So the recommendation is that:

DCF formalise forums and other prompts to practitioners, to engage other stakeholders –

and it lists them –

in addressing high risk behaviours by young people, i.e., to set up a multiagency high risk behaviour panel.

Now, that appears to be a fairly high level recommendation?---Yes.

And if you look at the – in May 2015, it says – sorry, in the column headed Status or Action Taken it indicates that:

TF consultation with police re responding to young people reportable incidents is in process.

Yes.

Continuing:

A protocol to prioritise the health and mental needs of young people in out-of-home care is under discussion with the Department of Health.

Now, when we look over to the far right column – we don’t need to go there, but you can see for yourself that that one remains open. Now, could you just explain to the Commissioners what happened here. You’ve got a recommendation from 2014?---Yes.

Then you’ve got a – and it’s a policy type recommendation. You’ve got some action taken in May of 2015?---Yes.

But now it remains open?---Yes.

Now, could you explain what open means. I think it speaks for itself, but you better explain it for me anyway, and then say what has happened and why is that?---Sure. “Open” denotes that there’s not enough supporting information that we have been able to gather to demonstrate the recommendations being completed and – sorry, the second part of the question?

I’m sorry. Well, what happened?---What happened, for this specific one?

Yes?---Sorry, for the specific recommendation?


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Yes. Sorry, pardon me. Yes?---Yes. Okay. So somewhere in my statement – I’m just trying to run my eyes over it now – I’ve articulated some of the difficulties that we can experience in progressing recommendations. It’s not coming quickly to my eye at the moment.

COMMISSIONER WHITE: Don’t rush. You might in fact find it subsequently. I do think we should think complete now, because it is just on 4 o’clock. If you need to tender this document - - -

MR MORRISSEY: I do. Commissioner, may we liberate those who need to leave. I have a bulk tender, which will take two minutes, which those on flights do not need to be present for.

COMMISSIONER WHITE: Yes, we will do that immediately. Ms Wharburton, thank you very much. I won’t release you from your existing summons, because it is quite clear that you need to finish giving your evidence in a couple of weeks, in Darwin. We won’t know what’s the best time it needs to fit in with your program, as well as our program with witnesses there, but the Commission staff will let the Solicitor for the Northern Territory know when we need you, so we will try and work together?---Thank you.

Thank very much for coming down here and assisting us with this material. So make a quick exit?---Thank you.

<THE WITNESS WITHDREW [4.01 pm]

COMMISSIONER WHITE: Thank you. And those who need to go to do just that - - -

MR MORRISSEY: sorry, your Honour?

COMMISSIONER WHITE: I am just inviting those who need to leave to catch aeroplanes or .....

MR MORRISSEY: While that – sorry.


MR MORRISSEY: May I tender the recommendations chart.

COMMISSIONER WHITE: Yes. Thank you. Exhibit 493.

MR MORRISSEY: Can I - - -

COMMISSIONER WHITE: No. Sorry, 494, I beg your pardon.


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EXHIBIT #494 RECOMMENDATIONS CHART

MR MORRISSEY: And could I tender the 2015 to ’16 Children’s Commissioner report on the same basis of - - -

COMMISSIONER WHITE: You don’t think that is 493, do you?

MR MORRISSEY: This is 15/16.

COMMISSIONER WHITE: So which one are you asking to .....

MR MORRISSEY: I’m asking now to tender the 2015 to ’16 Children’s Commissioner report.

COMMISSIONER WHITE: I thought that was 493. What was 493 then?

MR MORRISSEY: That was the 14/15.

COMMISSIONER WHITE: I beg your pardon. Just as well you tendered another one, because I had the wrong designation.


COMMISSIONER WHITE: 495.

EXHIBIT #495 2015 TO 2016 CHILDREN’S COMMISSIONER REPORT

MR MORRISSEY: We have the consent, we believe, or acquiescence of the Solicitor-General for the Northern Territory in altering the location of the summons for the witness, which – sorry, the date – the location of the summons, which now needs to be directed to Darwin. I’m sure it can be done administratively, but it’s done in court, and - - -

COMMISSIONER WHITE: Well, I think it would be perfectly clear, if you read the transcript, that that’s where she has to – Ms Wharburton needs to attend next.

MR MORRISSEY: So – and my learned friend will proceed with the tender – residual tender.

COMMISSIONER WHITE: Thanks, Mr Dighton.

MR DIGHTON: May I please tender the remainder of the tender bundle in the corresponding identifiers under exhibit 469. May I seek an additional order that


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those documents not be published for a period of two weeks, in order to resolve some confidentiality.

COMMISSIONER WHITE: Yes, thank you. And when that – I make those orders that you tender the balance of the tender bundle, 469, and that they’re subject, until further order, to a confidentiality order. When those matters have been attended to, that need to be attended to, then presumably each of those separate documents can be dealt with administratively, and given a number.

MR DIGHTON: Yes, thank you.

COMMISSIONER WHITE: Thank you. We will convey that to the parties who are interested.

MR DIGHTON: Thank you. Two final documents, Commissioners. One is we were invited by NAAJA to tender a document that was overlooked. That is the Grandmothers Against Removal Guiding Principles. I tender that document.


MR DIGHTON: And a book relevant to the evidence of the kinship care panel, named Kin and Skin: Talking about Family in Arrernte. I tender that.

COMMISSIONER WHITE: 471. That’s not – that’s a separate book from the book by - - -

MR DIGHTON: It is, yes, thank you. It seems like the, we may have – could I just ask the Commissioners, sorry to repeat the tender number, we might be out of sync.

COMMISSIONER WHITE: Yes, 469. I just accepted what I was told without looking.

MR DIGHTON: 469 is correct, but the textbook and the guiding principles - - -

COMMISSIONER WHITE: Would be 470 and 471. Not – are they – have they already been tendered? I’m not quite sure what the confusion is.

MR DIGHTON: Those latter two need to go after the documents that were tendered before, not after 469. So 496 and 497. My apologies.

COMMISSIONER WHITE: No, Mr Dighton, it has got nothing to do with you, it has got a great deal with the fact that I think I should leave here shortly. 496 and 497. You are so respectful, that I didn’t get the point.

EXHIBIT #496 GRANDMOTHERS AGAINST REMOVAL GUIDING PRINCIPLES


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EXHIBIT #497 KIN AND SKIN: TALKING ABOUT FAMILY IN ARRERNTE

MR DIGHTON: Not at all, Commissioners.

COMMISSIONER WHITE: I got it wrong. Thank you, that is done.

MR DIGHTON: Thank you. Those are the matters, Commissioners.

COMMISSIONER WHITE: All right. Thank you. Well, the – it just remains to thank the people who have assisted us during this week, which has been a very full week in Alice Springs. We have been very grateful for the hospitality of the town and, of course, all the various people who work here who attended our community forums and meetings. And they’ve been a very rich experience for Commissioner Gooda and I. We thank our Law in Order team for our work and, as usual, immensely grateful to our transcriber, who does things uncomplainingly extremely well. So while it’s not the speech before the Battle of Philippi, it feels like it because we have got a very full program in Darwin. So adjourn to Darwin, 19 June.

MATTER ADJOURNED at 4.07 pm UNTIL MONDAY, 19 JUNE 2017


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Index of Witness Events

KATRINA WONG, AFFIRMED P-4310KATHERINE LYN McFARLANE, AFFIRMED P-4310KAREN MARIANNE BROADFOOT, AFFIRMED P-4310THE WITNESS WITHDREW P-4333

KATHERINE LYN McFARLANE, RECALLED P-4334KAREN BROADFOOT, RECALLED P-4334THE WITNESSES WITHDREW P-4354

LEONIE JANE WHARBURTON, AFFIRMED P-4354EXAMINATION-IN-CHIEF BY MR MORRISSEY P-4354

THE WITNESS WITHDREW P-4378

Index of Exhibits and MFIs

EXHIBIT #489 STATEMENT OF DR KATHERINE LYN MCFARLANE

P-4310

EXHIBIT #490 STATEMENT OF KATRINA WONG P-4311

EXHIBIT #491 STATEMENT OF KAREN MARIANNE BROADFOOT

P-4312

EXHIBIT #492 STATEMENT OF LEONIE WHARBURTON P-4355

EXHIBIT #493 CHILDREN’S COMMISSIONER REPORT 2014-2015

P-4362

EXHIBIT #494 RECOMMENDATIONS CHART P-4379

EXHIBIT #495 2015 TO 2016 CHILDREN’S COMMISSIONER REPORT

P-4379

EXHIBIT #496 GRANDMOTHERS AGAINST REMOVAL GUIDING PRINCIPLES

P-4380

EXHIBIT #497 KIN AND SKIN: TALKING ABOUT FAMILY IN ARRERNTE

P-4381

.ROYAL COMMISSION 2.6.17 P-4382©Commonwealth of Australia

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