Monday, 1 August 2016

Royal Commission into the Detention of Children in the NT: will it be tears before bedtime For Prime Minister Turnbull?

Prime Minister Malcolm Turnbull's choice of a former NT chief justice (2004-2010) as Royal Commissioner is shaping up to be as problematic as his predecessor Abbott's choice of Dyson Heydon to head the royal commission into unions.

Royal Commission into the Detention of Children in the Northern Territory

29 July 2016
Statement by the Royal Commissioner, the Hon Brian Ross Martin AO QC
I have become aware of media reports today concerning my daughter’s employment by the former Northern Territory Labor Government during a period covered by the Letters Patent issued to me yesterday.
My daughter was employed as a Justice Adviser to the Hon Delia Lawrie, Attorney-General of the Northern Territory, from late 2009 to March 2011.  It is my daughter’s memory that during the period of her employment with the Northern Territory Government, she had no involvement in the Northern Territory child protection or child detention systems.  I am advised that Ministerial responsibility for those matters was held by the Hon Gerald McCarthy, who served as Minister for Correctional Services, and the Hon Malarndirri McCarthy and the Hon Konstantine Vatskalis, who served as Ministers for Child Protection during that period.
I am unable to discern any possibility that my daughter could be a witness before the Royal Commission.
I disclosed this matter to the Attorney-General prior to my appointment as Commissioner and we were both satisfied that it would not compromise the independence or appearance of independence of the Royal Commission.

Media contact: 
AGD Media  02 6141 2500 / 0408 778 909

New Matilda, 28 July 2016:

The man who will lead the Royal Commission into the abuse of children in juvenile detention in the Northern Territory needs no introduction. At least not to Aboriginal people. Chris Graham explains.

Brian Martin, the former NT Supreme Court Chief Justice, achieved infamy among Aboriginal communities in April 2010 when he described five white youths who bashed an Aboriginal man to death in a racially charged drunken rampage as “of otherwise good character”.

The youths – Scott Doody, Timothy Hird, Anton Kloeden, Joshua Spears and Glen Swain – spent the night getting drunk at the local casino, before driving up and down the dry bed of the Todd River, where homeless Aboriginal people sleep.

They abused campers, fired a replica pistol at them, and ran over at least one swag with their vehicle.

Eventually, the boys stopped and kicked to death Kwementyaye Ryder, aged 33, after he threw a bottle at their car as they drove at him.

The killing remains infamous in Alice Springs to this day, in part for the racial motivation behind the attack…..

But the killing is most infamous for the amount of time the five young men ending up serving.

Chief Justice Martin sentenced one of the men to as little as 12 months. The longest time served was four years.

One of Justice Martin’s justifications for the light sentences was that the youths would be caused ‘additional hardship’ in prison, given the overwhelming majority of inmates are Aboriginal.

Following is a story I wrote for the ABC’s Drum site in 2010, while staying in Alice Springs for several months. It should give New Matilda readers some insight to how Brian Martin’s stewardship of the Royal Commission is likely to be greeted by black Territorians.

One of Justice Martin's judgments was also considered in Scott v Northern Territory [2003] HCATrans 405 (3 October 2003):

MR TAYLOR: No. On 22 July, your Honours – I mean, Mrs Scott’s application into the Supreme Court was dismissed in No 118 of 1992 on 22 September 1999 by Justice Martin . Mrs Scott was in London on a phone hook-up, and Justice Martin  took no account of the affidavit of Rodney Selwyn Lewis of 25 September 1998 - - -
KIRBY J: Why was there not an application for leave to appeal or an appeal to the Court of Appeal?
MR TAYLOR: Mrs Scott was obtaining at the time forensic specialists and when she obtained those specialists she sought to have the matter - Douglas’s body exhumed in Townsville, Queensland and she spent quite some time arranging for that.
KIRBY J: But I am talking about after  Justice Martin’s orders there was then about a three year delay.
MR TAYLOR: There is also the fact that the law as stated by Justice Martin, seemed to be quite fixed; that is Lackersteen v Jones, and it was only when Justice Madgwick advised Mrs Scott in paragraph 64 of his judgment that actually she can have an action for murder and that Justice Martin is in fact wrong that Mrs Scott immediately appealed to this High Court. In fact, Justice Madgwick said that Mrs Scott has to pursue the action in the Northern Territory and further advised her that she should amend her application up there, the remaining application which was the compensation to relatives, fatal injuries action, which is - - -
KIRBY J: There was an inquest originally, was there not?
MR TAYLOR: There was an inquest, your Honours, but witnesses were not brought and neither did the prison officers attend; they told the coronial that they would not attend. It took some two years - - -
KIRBY J: The matter was investigated by the Royal Commissioner, I think.
MR TAYLOR: The Royal Commission did not bring the witnesses either, your Honour. They alleged that they took notes of what people told them over the phone or in conversations or certain things and evidence of murder was given to one the Royal Commission staff, namely Geoffrey Barbaro, and this was not brought to the Royal Commission, so there was not a genuine bona fides enquiry. This evidence was kept from Mrs Scott. The witness was an illiterate Aboriginal man, who was flown all the way from Kununurra in Western Australia or taken to Darwin during the Royal Commission and taken to a secret room and had a false statement placed in front of him and told to sign it and he was not brought before the Royal Commission.
KIRBY J: You can move, at least in New South Wales, for the reopening of an inquest. I have sat in the Court of Appeal in such matters.
MR TAYLOR: There has been a recent change to the law in the Northern Territory and Mrs Scott has taken advantage of that recent change to the law under section 44A of - - -
KIRBY J: That can be done in the Northern Territory, can it?

For Doug, she continued her campaign despite harassment. In 2005 she succeeded in getting his remains exhumed in Townsville. An independent pathologist from Brazil, Professor Jorge Vanrell, said that lesions to the body were "consistent with torture procedures".

Letty had confirmation of what she had always believed. "I feel vindicated by God," she said. "[However] I can see that Douglas died a brutal death and it's very distressing for my husband and I." A solicitor speaking on behalf of the territory government pointed out that two pathologists' reports did not support Dr Vanrell.

Letty called for a new inquiry, supported by the Indigenous Social Justice Association. With her son, Nathan, she took out private criminal and civil proceedings against four prison officers. One of those, Bill Dowden, had died of cancer, so the action was against three: Barry Medley, Michael Lawson and Harold Robertson.

In the civil proceedings, the territory Supreme Court judge David Angel found that it was "unable to be satisfied that the deceased took his own life", but he added: "The plaintiff has not established to my satisfaction that the deceased was murdered by the defendant prison officers" and also said that the evidence of Bindai and Percy "cannot be dismissed out-of-hand".

Daniel Taylor, who assisted her campaign and became her husband, said: "After the civil proceedings result we found it would be too hard to continue with the criminal proceedings, so we dropped them." Robert Dow, a former territory police officer who had helped Letty, told the Herald: "She uncovered the truth and she put the truth in the hands of authorities and asked them to deal honestly with it."


The Australian, 1 August 2016 12:16 pm:

Royal Commissioner Brian Ross Martin has resigned less than 100 hours after being “swiftly and decisively” appointed by Malcolm Turnbull last Thursday.
Mr Martin said his resignation was required to ensure “full confidence” in the royal commission among Aboriginal Australians following “disingenuous and ill-informed” commentary about his perceived conflicts of interest......


ABC News, 1 August 2016:

Less than a week after initiating the royal commission into the Northern Territory's youth detention centres, the Federal Government has been forced to replace the head of the inquiry.
Former NT chief justice Brian Martin has resigned from the post just days after being appointed and will be replaced by two co-commissioners: Indigenous leader Mick Gooda, and former Supreme Court judge Margaret White.
Mr Gooda is the Aboriginal and Torres Strait Islander Social Justice Commissioner with the Human Rights Commission, and his appointment follows increasing community and political pressure to appoint an Indigenous representative.
Ms White was the first woman to be made a justice of the Queensland Supreme Court and also appeared in the Mabo versus Queensland case.

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