12 December 2018

I wanted to start by dealing with the elephant in the room: it’s been said that, as a group, and as individuals, the new silks aren’t very diverse. Can I say – we resemble that remark? If we were a suburb of Brisbane, we’d be Camp Hill: modestly charming, a little bit vanilla and, amongst our number, one super industrious Greek.

I would, however, make special mention of Lincoln Crowley. He’s not only a new silk. He’s the first indigenous QC that Queensland has ever produced. I would also say on behalf of all the new silks that we are very conscious that the law is at its strongest and most credible when it’s informed by people from every walk of life. We intend to take up the Chief Justice’s challenge this morning and to make sure that, through our work with community organisations, with juniors or with clients, all the different voices are heard.

It seems very strange to be talking about what we would, or could, do as senior counsel when, only a few weeks ago, we were not at all sure that we would make it. The law is so binary in lots of ways, win/lose, get paid/ don’t get paid, but never more so than when you’re opening that letter from the President of the Bar, Rebecca Treston. You don’t know if it’s going to be a snake or a ladder, but you know it’s going to be a very long one. You steel yourself for rejection and then, at the very last moment, you deploy your emotional air bags like some 15-year-old kid, telling yourself, “I know I’m not going to get it and that’s absolutely fine by me”.

Mostly, we’re just grateful to be here.

Which leads me to the theme of my talk. I have approached the new intake about a topic that we might address. We agreed that what we’d really like to do is to acknowledge a huge debt to the older members of the Bar, for the assistance they have given us to date in our careers – teaching us court craft, involving us in strategy and, most of all, showing us what a strong work ethic looks like. As it happens, I had asked the staff at the Bar Association where to pitch this talk. They told me that it would be a good idea to be deferential without being sycophantic, and I thought this theme might be right in the sweet spot…

I approached the new silks for some specific examples of assistance received, but they weren’t very helpful. No one wanted to bell the cat. Andreatidis told me about a time after a big trial where he flew back to Brisbane with his leader, Roger Traves, and they walked over to the airport car park together. Nick reckons he lost his car and then he lost his silk. So he ended up spending an hour driving around the enormous car park with his head out the window of his Mini Cooper, yelling out “Travesy, Travesy!”. I don’t want to make light of how harrowing that must have been for both Nick and Roger, but it didn’t seem especially instructive for the rest of us …

Lincoln told me a story about when he was a reader in Sydney, and he asked a silk what he needed to do to be the best barrister ever. The silk told him, “Mate, it’s all about return sales. It’s like you’re running a shop selling lemon slices. And there’s a whole row of shops all selling lemon slices. You just need to make sure you’re selling the best lemon slices”. That advice seemed kind of Sydney-centric, and a little unhelpful for your Queensland audience. So, I’ve decided I’d best draw on my own experiences with senior counsel.

First, I want to give an example of how silks can put you at ease. I had only been admitted a few years, when I was briefed in a murder trial. It was making me seriously anxious. I was thinking that I hadn’t yet acquired the skills for that level of contest, and I was right. But this old criminal barrister took me aside at the Criterion Tavern. He said, Damo, you know what a murder trial is? It’s an assault trial with one less witness. That was, strangely, rather comforting.

Second, silks can help you avoid hubris. Years later, I was a junior to a fashionable commercial silk. And we were on Day 2 of the trial (so my leader was just starting to grasp all the facts), when he said to me, I’d like you to cross-examine the next witness. I was really chuffed, thinking that he must have spotted something special in my intellect. No. He said to me, “I really want to signal to the judge how desperately unimportant this next witness is, and letting you cross-examine is just the ticket”. He later told me Bill Pincus had said exactly the same thing to him, so I should be chuffed.

Third, silks can help you see the positives. I was working in chambers late on a Saturday night. I think I was trying to understand the rule in Barnes v Addy. I wouldn’t want his Honour Justice Jackson over there to think I wasn’t enjoying myself. I was. But I couldn’t help wondering if my wife and my friends over at the Lychee Lounge in West End weren’t better placed for fun. Anyway, at about 11pm, I make my way to the carpark. And there’s a silk there, and he’s had a big night out with his son at the casino. Which makes me even crankier, thinking I must be the biggest sad sack in Brisbane when even old silks are having a better time. But I talk to him and I grumble that I’ve been working. He says to me, how lucky are you? How’s that, I ask? He says, “Your practice must be really busy that you have to work on a Saturday night!” I walked away with my head held high.

Fourth, silks can keep you grounded. I was working as Counsel Assisting to Geoff Davies on the Patel Inquiry which was set in Bundaberg. The report was coming together rather well, and I bounded into Geoff’s office to tell him, excitedly, about an idea I had for the cover. I said, let’s have an image of a ute that’s taking a winding road that goes through a sugar cane paddock. It communicates FNQ, Focus, Energy and Optimism. Geoff just pointed at the door without looking up, and said: “We will never speak of this again”. He went with a plain purple cover…

The scariest advice I have received from a silk came only two weeks ago. It was from a Rockstar barrister in Sydney who sent me an email with congratulations which continued:

“Being a silk is quite different from being a junior. Being a silk is also quite different from having silk. The change in status, if you will forgive the pomposity, involves some attitudinal changes, in how you present yourself and in how others see you. If you want to have a chat about it, we’ll be at Sunshine Beach for most of January.”

It’s hard to interpret that email as meaning anything except:

(a) Your personality needs major renovations; and

(b) It can’t wait until February.

I tell myself that you probably all received similar notes when you took silk, but you don’t need to tell me straight away.

I would like to say something on a serious note. Its fashionable nowadays for people to say about lawyers that they don’t produce anything, they don’t do anything useful. I don’t agree. When you listen to public debate today, there is such a clumsiness, a violence, a move to outrage and a disconnect in communication. But what our industry, our profession, teaches us is to discuss issues with civility, to present our thoughts logically, to respect opposing views, to argue with clarity and to bring evidence to bear in order to persuade others to a particular position. Those skills are sorely needed in our community.

I was educated at a Catholic boys’ school in Coorparoo and, if you made bad choices, you had to write out a very long essay by Cardinal Henry Newman called the Definition of a Gentlemen. I keep it close nowadays to remind me how to behave when I’m faced with a particularly obnoxious opponent. I actually posted it to a young woman recently who was being treated very poorly by her partner, just to let her know what she was entitled to expect.

There was one part of the essay which resonates with the point I would make. The writing didn’t need to be gendered but it was, and it described a Gentleman in part as follows:

“… He has his eyes on all his company; he is tender towards the bashful, gentle towards the distant, and merciful towards the absurd; he is seldom prominent in conversation, and never wearisome…

If he engages in controversy of any kind, his disciplined intellect preserves him from the blundering discourtesy of better, perhaps, but less educated minds, who, like blunt weapons, tear and hack instead of cutting clean, who mistake the point in argument, waste their strength on trifles, misconceive their adversary, and leave the question more involved than they find it.”

The Chief Justice spoke glowingly this morning about the privilege of being an advocate and the responsibilities of being a leader. As the newest silks, we approach this appointment, this elevation, with a growing sense of certainty about what is of value, with an excitement about the intellectual opportunities the position offers, and with a sense of wonder and humility about our good fortune in joining this tribe.

Damien Atkinson OAM QC

 

June 2019

“I’m expressing with my full capabilities, and now I’m living in correctional facilities”

Express Yourself, NWA, 1988

Happy children don’t do crime. They aren’t out late, rolling people for their Nikes or tagging the wall at the local train station. That’s because they’ve been busy with sport, music, homework, dating or social media.

Those happy kids reckon they’re blessed and they’re right — but for the wrong reasons. They reckon they’re privileged because their mums and dads buy them stuff. In fact, they’re lucky because they have parents who are constantly nurturing their strengths, blunting their weaknesses, and giving them a stable platform for learning. They have families who walk with them.

The young people who reach the youth justice system hardly ever come from those backgrounds. We see over 500 clients each year at the Youth Advocacy Centre and we calculate that about 70% have been affected by one or more of a cluster of factors: mental illness, homelessness, domestic violence, learning disorders or substance abuse [1] . They are not being offered an easy place to do homework or a yard to play sport. They have had disadvantage piled upon disadvantage so that, for instance, they dropped out of dysfunctional homes and challenging school experiences, and now they don’t have the support or the literacy to see a doctor, buy clothes or look for a job. They lack social networks but, more than that, they may lack the machinery to make their way in relationships with family, let alone with strangers.

All of this, of course, leads to the gloriously obvious conclusion that, if we are relying on our criminal justice system to address youth crime, that’s crazy. The underlying premise of that system is that we create penalties so that the cost of committing anti-social behaviour is greater than holding back. But the kids who hit the youth justice system were, for the most part, badly damaged way before they came to make choices, and the drivers are usually still in place. The knot of unhappiness, confusion and powerlessness that presents as offending is not going to be unravelled by the binary levers of a penal system. If all we do as grown-ups is to tell these children that some things are forbidden — and we never give them the equipment to find a healthy path – that is a lame exercise in merely delaying harm for tiny periods. Worse, we have squandered the opportunity to spare ourselves all the loss that damaged youth can bring later in life to themselves and to others.

These conclusions are not new. There was an article that came out of Queensland, published by the Australian Institute of Criminology, in September 2003 [2] which made similar findings (albeit in more scholarly terms!) and concluded, “by the time young people come to the attention of the juvenile justice system, it is difficult to modify a trajectory whose ‘direction’ has already been substantially determined by a very wide range of precursor factors that can no longer be effectively addressed by any single government agency.”

In my view, it comes to this: the best improvement you can make to the youth justice system is to make sure we rarely use it. That stance may jar with the opinions of talk-back radio callers but I can tell you it is a very widely held view amongst the people who actually have expertise in the area — whether they be judges, police or youth advocates.

Happily, the current government has developed policies which are entirely consistent with the views set out above. The Minister for Child Safety, Women and Youth, Di Farmer, engaged the former Commissioner of Police, Bob Atkinson AO, to head a team that would assess the state of youth justice and the report was published in June 2018. There were four underlying “pillars” in the recommendations, namely:

• Early intervention (that starts with ensuring that children are born healthy)
• Diverting kids from courts
• Diverting kids from custody
• Assessing policy by whether or not it reduces re-offending.

Beneath that high-level response, there were specific recommendations. They included focusing on towns or postcodes with high level offending and looking at “place-based” approaches, looking to schools as a means of identifying children in need of support, establishing alternative facilities to address offending behaviour where children have problems related to disability, substance abuse or mental illness, working across agencies to share information, supporting transition back to normal life after custody, and setting high targets for reducing the number of children entering detention for the first time. There are many more recommendations, but one can see the theme: if the need occurs in isolated pockets, identify it early and support families and children, rather than keeping with a reactive approach.

And the Government had implemented policies that go some way down this path. It has introduced a Transition 2 Success program which helps young people back to school or into the workforce, it has developed community youth responses for crime hotspots in Brisbane, Cairns and Ipswich, and it is rolling out youth and family wellbeing services to assist indigenous communities in developing their own solutions, amongst other policies. It has a Youth Justice Strategy called “Working Together, Changing the Story” which takes this State up to 2023 and is designed to implement Bob Atkinson’s recommendations by working on need long before it manifests as crime. That Strategy fits neatly with research I understand is coming out of Treasury to the effect that the best indicator of the quality of a child’s life is the first thousand days following birth.

The Government is dedicating considerable resources to a coherent plan and to a range of new or improved initiatives and it is to be strongly commended. But, for a number of reasons, I am unable to give it a gold star just yet. First, there are approximately 242 beds for children in youth detention in Queensland, and they are divided between the centres in Brisbane and Cleveland (near Townsville). That seems more than enough Queensland children being detained, especially since 80% of them are on remand and have not been found guilty. One would like to see a system where we are much more discerning about who is locked up, and how quickly they are processed, rather than expanding detention facilities. But the Government has now committed to building new facilities with 48 additional beds at a cost of $177 Million. And that, of course, is just the start-up cost; it doesn’t reflect the running expenses. It seems to sit uneasily with the initial vision, and many in the community sector would have liked to have been taken into the Government’s confidence — consulted in a substantive way – so that we can work together towards considering whether this measure (and the finer points of many others) were the best response. Suffice to say that in my experience the Department’s version of consultation could easily be improved.

Second, the experience at Youth Advocacy Centre (and with many other agencies) is that we are finding that, whilst youth offending is actually reducing, the numbers of children in custody with drug problems is increasing drastically. Sydney and Melbourne have sophisticated rehabilitation programmes but in Queensland, at best and if at all, we send our children to Coffs Harbour. We desperately need a rehabilitation centre in Queensland so that drug problems can be treated by professionals, and that idea needs to gain traction.

Third, and most immediately, it is desperately hard for people working in the youth justice system to give the Government credit when it presides over the terrible slur which is the watch house status quo in Queensland. It goes like this. The Department says that, for various reasons, the detention centres are full [3] . There are a host of potential remedies like building temporary accommodation at the centres, increasing staff ratios or processing the kids on remand quicker, but the Department maintains that no solutions work. Instead, it is placing the “overflow” children — around 60 to 90 around the State on any given night — in police watch-houses.

I have walked through the Brisbane watch house and seen the children, and it is a harrowing experience. The place is a cramped high security stopgap for dangerous prisoners, and it was certainly not built for children. There is no natural light. There is no exercise yard (just a tiled courtyard, 8 m x 8 m, where well-behaved children are permitted for 15 minutes per day). There is no privacy because there are 160 cameras through that place. Police officers will tell you that the nights on the weekends are the worst. It’s a dark, scary place with adult prisoners wailing and bleeding or yelling obscenities, and I can only imagine what they are whispering to the children in nearby cells. The watch house is nothing more than a cluster of heavily secured rooms, with glass walls, toilets and mattresses all on display. And when the fear is gone, it is replaced by a terrible boredom. The children sit in their cells for long, extended periods, sometimes remaining in the watch house for up to 5 weeks (when adults are invariably moved out within three days). The police call the children the “meerkats” and it’s easy to see why. When you walk past their cells, they rush up against the glass, anxious for some stimulation. They fight amongst themselves and damage property because they are so starved for activity or sense of purpose.

It is the Department that has made the decision to put these children in the watch-house but it is the Police that are left to make it happen. And the Police are truly distressed by the task. The watch house managers say that after three days you can see the mental health of the children visibly decline. And they say that it so awful to watch that they struggle to find police officers (particularly those who are parents) who are prepared to keep working there.

The Department has attempted to improve the conditions at the watch houses but, frankly, they are polishing something that will never come up shiny. So the children stay. Decompensating. Bored. Powerless. Isolated from their parents. Surrounded by adult prisoners. We are left with a situation where there is a major problem with the youth justice system in this State. And the burden of that problem seems to be falling on young children who — and keep this in mind — are all on remand and haven’t actually been convicted of an offence.

The Department has been asked to provide a plan or at least a deadline for removing the children, but neither has been forthcoming. I suspect that it is resigned to allowing the problem to continue until at least late 2020 when the new facilities may be built. But that’s outrageous. Even if there are only 50 kids in the watch house each week until that time, that’s roughly 3,000 Queensland children who will have been harmed, perhaps irreparably, and pressed down a path of miserable, criminal behaviour when they could have been diverted to much happier pursuits.

That is a very long way from a gold star performance.

Damian Atkinson OAM QC

Footnotes

[1] The State has disclosed broadly consistent statistics in Working Together, Changing the Story so that it found 58% of children in the youth justice system have a mental health or behavioural disorder, diagnosed or suspected.

[2] Youth Justice, Criminal Trajectories, Mark Lynch, Julianne Buckman and Leigh Krenske

[3] Oddly, whereas the build capacity of the Centres is 242, the Government and/or the Together Union consider that the safe capacity is only 206, so that alone accounts for 36 children in the watch houses.