Top barrister Sally Gearin invokes Kumanjayi Walker case in backing NT’s proposed child safety reforms

The Northern Territory’s most senior female lawyer has invoked the case of Yuendumu teenager Kumanjayi Walker to back the Finocchiaro Government’s controversial proposed child safety reforms.

As debate rages over the proposed changes to child protection laws, barrister Sally Gearin has argued that child safety must take precedence over cultural placement considerations, saying vulnerable Aboriginal children have been left in dangerous environments for too long.

In her personal submission to the NT Parliament’s scrutiny committee, Ms Gearin backs the CLP Government’s controversial proposed changes to the Care and Protection of Children Act, which would introduce a new “universal principle” placing child safety above all other considerations when making decisions about at-risk children.

The reforms, announced in the wake of the alleged murder of five-year-old Kumanjayi Little Baby in Alice Springs, have sparked fierce debate, with critics arguing they are being rushed and could weaken protections designed to keep Aboriginal children connected to family, culture and Country.

But Ms Gearin, the first woman admitted to the Bar in the NT, said it was “almost Kafkaesque” that lawmakers were being forced to justify making child safety the primary consideration in child protection decisions.

“I have heard no argument as to why it would not be,” she said.

“Rather, the objections I have seen are that the safety criteria was rushed, not thought through, culturally insensitive and or because of the conditions Aboriginal people are living in.

“These objections simply do not address the reason why safety should not be the primary criteria.”

Ms Gearin pointed to the life of Kumanjayi Walker, the 19-year-old Warlpiri man from Yuendumu who was fatally shot by police officer Zachary Rolfe in 2019.

Mr Rolfe – who has since left policing – was acquitted of murder, manslaughter and violent act causing death following a Supreme Court trial in 2022.

Ms Gearin argued that Mr Walker’s troubled childhood demonstrated the consequences of child protection failures.

“As I understand the facts of that situation, KW was born to an alcoholic mother and had foetal alcohol syndrome,” she wrote.

“He was left as a young child in his community where he was neglected and abused.

“He was not taken into care but rather passed from one dysfunctional relative to another dysfunctional relative in his community and he received no assistance, diagnosis of either his circumstances or any treatment.”

Ms Gearin said Walker “progressed from that environment essentially illiterate” and began committing crimes at a young age before he was eventually incarcerated in a juvenile justice facility.

“It was inevitable that he would end up where he did either because of crime or lack of control because of his FASD,” she wrote.

“He had a stamp on his forehead from the moment he was born.

“He was not alone as a Territory child who was not cared for but left to fend for himself as a little bloke in those unsafe circumstances.

“If safety was the criteria for removal of a child back then Kumanjayi Walker may well have had a different life and become a spokesperson for his people.”

Ms Gearin also warned child protection authorities effectively stand in the role of a parent when they become aware a child may be living in unsafe circumstances.

She argued that if a department identifies a child as being at risk but leaves them in that environment, it could face future legal liability if the child is harmed as a consequence.

Ms Gearin pointed to the case of Western Australian man Dion Barber, who was awarded $2.85 million in damages after the state failed to protect him from ongoing sexual abuse as a child.

Despite reporting the abuse and being briefly removed from home, Barber was returned to the care of the same perpetrator and continued to be abused.

About 150 submissions are being considered by Parliament’s Legislative Scrutiny Committee as it examines the Government’s proposed reforms.

Ms Gearin, who specialises in family law and human rights law, rejected suggestions the reforms were culturally insensitive.

Rather, she argues the proposed reforms are consistent with Australia’s obligations under the United Nations Convention on the Rights of the Child and are not inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples.

The veteran lawyer – who is also the NT’s Legal Aid Commissioner and chairperson of the NT Liquor Commission – also said it was “ironic” that many wealthy Aboriginal parents do not choose to live on country or raise their children there.

“Our Aboriginal politicians and spokespersons are a good example of this,” she said.

“I do not mean this as a criticism of them, but an indicator of their reluctance to expose their children to an unsafe life.”

Ms Gearin, who joined the NT Attorney-General’s Department in 1986, helped establish Darwin’s first women’s refuge in 1988 and has spent decades working on domestic violence, family law and child protection issues.

Chief Minister Lia Finocchiaro said the government would not back down from its reforms.

“We are unapologetic in our approach,” she said.

“I cannot understand how anyone can argue with making the safety of a child the number one priority, and to those people who think that’s what the old act did, they’re just absolutely wrong.

“We know that Territory kids need the very best chance in life and at their most vulnerable is when we need to be protecting them the most and that’s what our reform does.”

This comes as Child Protection Minister Robyn Cahill again criticised the Territory’s child protection watchdog for refusing to investigate the circumstances surrounding Kumanjayi Little Baby’s death.

Last month, The Nightly revealed Children’s Commissioner Shahleena Musk would not launch an own-initiative investigation into the case, despite calls from Territory ministers and former NT Children’s Commissioner Colleen Gwynne.

Such an investigation could have examined whether the little girl’s death was foreseeable and whether systemic failures contributed to the tragedy.

Instead, Ms Musk has called for a coronial inquest, arguing it is the most appropriate mechanism to investigate the circumstances surrounding the five-year-old’s death and any contributing systemic issues.

The criticism comes after the Office of the Children’s Commissioner released a report, Monitoring the Harm of Children in Care, which found one in three children in out-of-home care in 2024-25 were the subject of at least one alleged harm notification – more than double the rate recorded the previous year.

Speaking on ABC Radio, Ms Cahill criticised the report and suggested it appeared to be a response to recent scrutiny of the child protection system.

“Now we know that the Children’s Commissioner has two speeds: do nothing, and then knee-jerk,” she said.

“If you look at when this report was constructed, it was only constructed over the last couple of weeks, and very much appears to be directed at not liking what is actually happening in the child protection space, from a government point of view.”

Ms Cahill said the commissioner had failed to take an active interest in some of the Territory’s most serious and recent child protection cases.

“There have been a couple of really, really difficult situations with young people in home care in the past … the two that come to mind are a 13-year-old who was the victim of horrendous domestic violence, assault and rape – and whose perpetrator was then sentenced to jail – and of course we have Kumanjayi Little Baby,” she said.

“Neither one of those has the Children’s Commissioner taken an interest in to do further investigation around that.”

The Nightly has sought a response from Ms Musk to Ms Cahill’s claims.

A spokesperson for the Office of the Children’s Commissioner previously told The Nightly the commissioner had written to the coroner requesting a formal inquest into Kumanjayi Little Baby’s death.

“These mechanisms are most appropriately placed to investigate and review the circumstances of this matter and potential contributing and systemic factors,” the spokesperson said.

“In proactive efforts to assist, the Children’s Commissioner has offered her expertise and guidance to inform this imperative process.”