The perils of positivism in the NT Royal Commission into youth detention: the case for a post-positivist frame for First Nations justice

Abstract

ABSTRACT The Royal Commission into the Detention and Protection of Children in the Northern Territory (2016–17) was set up by the Australian Government following a national television broadcast of guards inflicting tear gas, physical attacks, mechanical restraint chairs, hooding and indefinite segregation on First Nations children. Through an examination of the Royal Commission's establishment, proceedings and outcomes, this article identifies how First Nations people were not afforded justice. Legal positivism tainted public hearings through adversarial proceedings and the cross-examination of First Nations young people by a hostile Northern Territory (NT) Government. First Nations witnesses were examined in court houses and convention centres according to predetermined questions. A wide berth was given to guards and managers to justify violence in youth detention. Lines of inquiry were directed to reforming, rather than transforming, youth justice and state-centred approaches. In implementing the recommendations, the NT Government failed to listen to the calls of First Nations witnesses for self-determination and decarceration. Consequently, violence in youth detention has continued unabated since the Royal Commission. This study has international significance and broad lessons for inquiries directed to First Nations justice. It demonstrates how positivist frameworks undermine truth-telling processes and fail to promote structural change.