Opinion: The Decline and Fall of the NT Legal System

There has been a decline in the Northern Territory’s legal system, Darwin barrister John Lawrence writes, with its major victims being Aboriginal Australians, and women, who are subject to Australia’s greatest scourge, the increase in domestic violence. Just like the country’s slide towards totalitarianism, this decline of the legal system has been incremental, he writes.

This was first published in Arena magazine.

Introduction

For over five years now I have been regularly writing, presenting papers and speaking in the media, effectively recording the decline and fall of the NT legal system. I have previously described this system as ‘broken’ and ‘not fit for purpose’. The times in which we live are all about decline and fall, and this is evident across most aspects of capitalist liberal democracy. Democratic collapse is upon us and overarching it is the failure to address the impending Anthropocene disaster caused by human-made climate change. Australia is no longer a well-run society. Many of our central institutions are failing and worse. Nothing seems to work as it once did. Everything appears faulty, if not broken. We are crumbling. It is in this context that the NT legal ‘system’ continues its decline, which I record and report accordingly, emphasising that its major victims are Aboriginal Australians, and women, black and white, who are subject to Australia’s greatest scourge: the increase in domestic violence. This legal system is daily failing to provide proper protection for women; ‘slipping through the cracks’ is the threatening order of the day. Just like the country’s slide towards totalitarianism, this decline of the legal system has been incremental.

Nowadays when I step into an NT court I often witness and participate in what has now become a curial absurdity. It’s often just a line of Aboriginal defendants on a conveyor belt, some of them appearing from remand via audiovisual link, who are taken to jail to serve sentences or for further remand. Twenty years ago the system strove for and produced due process. Now it’s just an ‘efficient’ production line. Case management prevails over all other considerations. And so, at the end of most days, beneath each court house (‘clearing house’) the cells are full of Aboriginal cargo ready to be driven down for racking and stacking into the $1.8-billion, now overcrowded, ‘Darwin Correctional Precinct’. At the time of writing the published figures inform that the Darwin jail holds its highest ever number of prisoners. This denigration is bad enough, but what is more disturbing is the stagnant disregard and resignation of twenty-first-century Australians concerning this state of affairs. Voltaire warned us, ‘Those who can make you believe absurdities can make you commit atrocities’.

My article ‘The Aboriginal Gulag: The NT’s Criminal Legal System‘, published by Arena in October 2020, included the fact that the Australian Lawyers Alliance (ALA) had refused to publish it in its official publication Precedent without its editorial additions and reductions. The ALA’s explanation is worth quoting in full:

There are a few rather controversial and provocative statements which if published in Precedent would run the risk of damaging the ALA’s relationship with the NT legal organisations named in your article, some of which have members in the ALA.

Did someone say something about an incremental slide towards totalitarianism?

The subsequent publication of my article in full by Arena then led to Justice Kelly of the NT Supreme Court, at the commencement of a criminal case in which I was counsel, disclosing that she had chosen to engage a senior defamation silk who advised her that the article had defamed her, that I was without a defence, that the damages would be substantial, and that she was contemplating taking action. It seems clear to me that many of the people who run and are part of the NT legal system, and who are, in part, responsible for its degradation, would not want this article to be written, published, distributed and discussed. They just want hush. And disturbingly, hush is increasing by the day in this country. ‘Quiet Australians’ indeed. I can’t oblige. Saying nothing is a decision I refuse to make. I can’t allow cold shoulders and criticisms of being ‘self-appointed’ and ‘always going on about the same thing’ to deter me from attempting to speak truth to power. I also speak out to stress the corrosion of accountability and the belief that history is important and instructive.

Just what have we become?

The malaise that besets the NT legal system is symptomatic of Australia’s fall from grace as a country. Over the last twenty years Australia’s inhumane and cruel policies towards refugees, its increasing incarceration of Aboriginal Australians, its standalone policy of reducing foreign aid, and its scandalous attitude to climate change have made it an international disgrace and pariah. And rightly so. Like many Australians, I am embarrassed. We have become a country without any moral authority—a shameless, wretched nation state.

The recording of this collapse and its consequences is one thing. One then really needs to critically analyse how such a fall occurred and how the decline continues, even when it has been exposed. The major recent example from the NT legal system is the abusive practices inflicted on child detainees at Don Dale and Alice Springs Youth Detention Centres. The gross abuse of Aboriginal children by their state detainers and carers was fully exposed by Four Corners, and there followed the White/Gooda Royal Commission. How could nothing really change as a consequence?

This analysis poses three questions, the answers to which reveal how far Australia has descended and why:

The NT legal system

The major feature of the NT legal system has always been its extremely high imprisonment levels of Aboriginal men, women and children. The Territory has the highest imprisonment level of any country in the world, with 85 per cent of adult prisoners Aboriginal and 100 per cent of child detainees Aboriginal. Over the last thirty years those numbers have increased, but in the last ten years they have accelerated to levels that beggar belief. Along with this acceleration there has also emerged serious regression in the mistreatment and abuse of juvenile Aboriginal detainees. In July 2016, Four Corners’ ‘Australia’s Shame’ exposed the abuse and torture being inflicted on Aboriginal children in NT detention centres. This led to the White/Gooda Royal Commission into the Protection and Detention of Children in the Northern Territory. That Royal Commission sat from October 2016 to June 2017 and reported in November 2017. The report confirmed, and more, the inhumane abuse suffered by Aboriginal children over a period of years, only a portion of which was revealed in ‘Australia’s Shame’. The cruelties included staff assaults on the children, extensive periods of unlawful isolation, spit-hooding, gassing and the unforgettable use of the restraint chair on the young Aboriginal detainee Dylan Voller. The image of Dylan Voller, locked in a cell alone with his neck, arms and legs strapped to a custom-built restraint chair, spit-hooded and catatonic, is still the image of the twenty-first-century NT legal system. The abuse discovered by the Royal Commission was seriously gross.

One further illustration will suffice, being the seminal story of Jake Roper. Jake agreed to be interviewed on the Four Corners program, telling ABC journalist Caro Meldrum-Hanna of his experiences inside Don Dale. He also gave evidence to Commissioners White and Gooda in the Royal Commission. I represented Jake at the Royal Commission. He is from a town in the Centre, Tennant Creek, and in 2014 he was in Don Dale on remand. On 6 June 2014 Jake was put into the infamous Behavioural Management Unit (BMU) of Don Dale. He was locked up alone in a concrete cell measuring 2 metres by 3 metres. His only furniture was a steel toilet, a mattress and a pillow on the concrete floor. There was no direct ventilation or natural sunlight; no fan, no air-conditioning. Jake was kept in that cell alone for twenty-three hours each day, with one hour or less to have a stretch and a shower in the open adjacent courtyard, exposed to one and all as he showered. All his meals had to be consumed alone in his cell, and so they were handed in through the steel-meshed ‘Judas hatch’. There was no washbasin in his cell, so after using the toilet and before having his meals, he was unable to wash his hands. Every day Jake repeatedly asked officers when his detention would end. He was told that there was no release date. He was suffering under the cruellest of the cruel: indefinite detention. Jake was fourteen years old. His distress was compounded because his traumatic upbringing meant he was already suffering from foetal alcohol spectrum disorder and post-traumatic stress disorder. That torture lasted sixteen days before he managed to break out of his cell. On day sixteen, a guard forgot to lock his cell door and Jake got out, in an obvious state of distress, and ran amok in the courtyard. ‘Do you know how long I have been in here, brus?’ Jake repeatedly yelled out. The footage of this scene was shown on Four Corners. Jake and the five other boys in the BMU, who were still locked in their cells, were gassed, extracted, cuffed, hosed down, and then spit-hooded before being moved into the adult prison. That was on the night of Thursday 21 August 2014—seven years ago. It was later in 2014 that the then Country Liberal Party government reopened the decommissioned and condemned Berrimah Prison, closed down the purpose-built Don Dale juvenile facility and moved all the kids into the former jail. When questioned in the Legislative Assembly as to the reason for this, Attorney-General John Elferink said the move would ‘enable us to deal with some of these juveniles who have caused us grief’.

Astonishingly, Aboriginal children are today still detained in that condemned prison, which the government perversely calls ‘Don Dale’. Calling it ‘Don Dale’ is a sinister ruse to disguise the fact that children are being locked up in a condemned adult prison that, back in 2011, Commissioner for Corrections Ken Middlebrook described as ‘only fit for a bulldozer’. Aboriginal children have now been in there since 2014. The Royal Commission’s first recommendation, in November 2017, was to shut it down, get the children out and move them into a purpose-built juvenile facility. That recommendation has been blithely ignored ever since, and there the children remain. At the time of writing there is now a record high number of boys and girls kept in this prison, 80 per cent of them on remand. The only significant opposition to this has come from the children themselves, who have attempted to escape, rioted and, on one occasion, tried to burn the place down.

How did this happen?

Lest there be any doubt, this is racism writ large. Aboriginal people have been subjected to the evil of racism from day one of white colonisation of Australia. Murders, rapes, land theft through the legal fiction of terra nullius, Stolen Generations and this incarceration cancer all stem from racism. Make no mistake: this protracted abuse of Aboriginal children in state institutions by state employees could never have occurred if those children were white. No chance. The level and amount of racism in Australia today is worse than it was thirty years ago. Booing Adam Goodes into retirement and throwing bananas at Eddie Betts demonstrate this decline.

The decline I have described is not unique to the NT legal system. The whole world is in similar decline. What seemed immutable twenty years ago is no longer so, but very little is actually said about it. As they said about the last years of the Soviet Union: ‘everything was forever until it was no more’. Australia, including the Territory, has now very little real public-interest journalism. There are few to no voices attempting to hold power to account. The local NT media seem normalised and government-friendly. Why is a lawyer writing this article?

Australia is currently susceptible to a form of collective amnesia: a wish not to confront the troubling details of its present and recent past. The English art historian John Berger stated that ‘the role of capitalism is to destroy history, to orientate all effort and imagination to that which is about to occur’. Throughout my readings of Australian history and Aboriginal affairs, I always return to Professor William Stanner. It was he who exposed the then central feature of Australian history: its failure to accept the truth about its treatment of Aboriginal Australians. That feature has, up to recent times, been effectively suppressed. As Stanner described it in his 1968 Boyer Lecture:

It is a structural matter, a view from a window which has been carefully placed to exclude a whole quadrant of the landscape. What may well have begun as a simple forgetting of other possible views turned under habit and over time into something like a cult of forgetfulness practiced on a national scale. We have been able for so long to disremember the Aborigines that we are hard put to keep them in mind even when we most want to do so. [my emphasis]

This ‘cult of forgetfulness’ also partly explains why the regressive slide of the NT legal system continues.

This descent has very much been part of a general moral decline that has occurred across the Western world. Neoliberalism and the catastrophe of ‘individualisation’ have combined to significantly change and dehumanise Australians of 2021 compared with Australians of thirty years ago. We are now a more selfish and less informed lot than we were then. This, along with the addiction to consumerism, and the lack of economic and employment security, has also led to a drop in most professional standards. Further, a perennial feature of Australian society has always been apathy. This has increased significantly to become the evil of indifference, and now, resignation and unashamed disinterest. Words like ‘altruism’, ‘integrity’, even ‘honesty’, are literally heard less in Australia’s daily life. This is why, after writing for over five years on this topic, I am forced to wonder if anybody out there cares or is even interested in hearing about this continued catastrophic decline.

Jake’s isolation detention was unlawful. It was done to Jake knowingly, not only by his immediate jailers at Don Dale but also by the then Executive Director of Youth Detention, Salli Cohen, and the then Minister for Corrections, John Elferink. They all gave evidence at the Royal Commission that revealed they knew that Jake was being held under those conditions. No one, including them, was ever held accountable for Jake’s treatment in Don Dale. Further, concerning accountability, those abuses committed against Jake and all the other Aboriginal children in Don Dale and Alice Springs Detention Centres occurred over years, not days. Throughout the entire period, all the children were represented by lawyers from either the North Australian Aboriginal Justice Agency (NAAJA) or the Northern Territory Legal Aid Commission (NTLAC). What were they doing? During the Royal Commission, Commissioners White and Gooda refused to examine what the lawyers did or did not do for their clients in relation to all of this abuse. It thereby became ‘The Royal Omission of Inquiry’. The politicians, including the then chief minister, Adam Giles, as well as high-level bureaucrats and prison officers, were all summonsed and made to give evidence. They were thereby exposed to cross examination and duly criticised in the media. Not so any of the lawyers. Needless to say, not one of the scores of vulnerable and exposed Aboriginal children who were abused within custody made any complaint to the NT Law Society about their lawyers’ participation in all of this. It was situation normal— to be expected. The NT Law Society, which is fully aware of this aspect, have chosen not to use its legislative power to make the complaint itself and investigate the question. Its decision not to do so was exposed by the Legal Affairs Editor of The Australian,Chris Merritt in a September 2018 article.

This impunity is one of the symptoms of the decline pervading current democratic systems. You see it everywhere, from the Global Financial Crisis to the Banking Royal Commission—and watch this space for the Brereton Afghanistan Inquiry Report. It includes and is caused by the community becoming habituated to seeing politicians and the system regularly exposed for transgressions. Nowadays, following years of attrition, lies are accepted, corruption goes on, the corrupt are rewarded, and no one cares. A core feature of this decline has been the steady and incremental drop in professional and moral standards. As the ever-prescient Richard Flanagan said in his 2011 Alan Missen Oration: ‘we have agreed with too much that was wrong for too long’. Non-accountability is now a hallmark of contemporary Australian society. It also strongly suggests that our society is on its last legs. No one ever pays the price for wrongdoing—unless, that is, you happen to be an Aboriginal juvenile who has stolen a car. For them there has to be, as the sentencing judge tells them, ‘consequences for their actions’. They ‘go straight to jail’ on the system’s still-functioning raison d’être: the video-audio-linked conveyor belt to prison. Following the exposure by the Royal Commission, no one was effectively held accountable and since then little has changed. Much has been written and recorded about this non-outcome, this nothingness. It is not seriously in dispute. This clearly confirms that we live in an age of impunity.

Why is it getting worse?

First they came for the CommunistsAnd I did not speak outBecause I was not a Communist…

Concerning opposition, in 2021 one hears very little real or effective protest from the traditional representative bodies tasked to represent and agitate for these vulnerable Aboriginal children. Neither NAAJA, NTLAC, the NT Bar Association, the Criminal Lawyers Association of the Northern Territory (CLANT), etc., present any form of real opposition to this disgraceful state of affairs. But then, this was also the case during the period the Royal Commission investigated. Epitomising this, during the Royal Commission, the then president of CLANT and the NTLAC senior lawyer, Russell Goldflam, gave evidence. When asked about the performance of the legal profession and what they knew during this horror period, he said:

We all knew that there were terrible things going on in the Youth Detention facilities. Although Four Corners hadn’t been aired, it wasn’t a secret that spit hoods and chairs and all the rest of it were being used. I had written about this myself publicly, over a year before—just on a year before Four Corners was aired. So it was an issue of the most pressing concern.

Goldflam further said in his witness statement that CLANT’s policy had been one of ‘cooperation’ and ‘collaboration’ with government. He considered it to be a ‘cordial’ and ‘productive’ relationship.

These representative bodies are all now well and truly co-opted into the system and the retention of the status quo. The occasional article published in lawyers’ journals, which no one reads, plus some short-lived lip-service disagreement are as good as it gets.

Further deterioration

Within this muted environment the current NT Labor government played its latest trick: taking with one hand whilst giving nothing with the other. In May 2021, it made amendments to the Bail Act that restricted bail and diversionary programs for juveniles, thus increasing to a record high the numbers now remanded in custody in this prison. Dovetailing with the amendments, and anticipating the inevitable increase in juvenile detention, $5 million of expenditure was dedicated to ‘refurbish’ and open disused cells to detain the growing number of Aboriginal children being ‘remanded in custody’. As I have said, there are now record high numbers of Aboriginal children being held in Berrimah prison.

While the NT Labor government passes real laws to increase the number of Aboriginal children in jail, it produces its long-awaited and much-touted solution to this disaster. It’s called the Aboriginal Justice Agreement, and a bigger example of political cynicism you wouldn’t want to encounter. It’s truly a product of the post-truth age. It’s a signed agreement between the Labor government, the co-opted NAAJA and others that contains a lot of words taken from the dictionary of mission statements and the recipe for fairy floss. It’s also, of course, beautifully decorated with dot paintings by Aboriginal primary-school children. What is not in this agreement sums up its real worth.

It does not contain and should contain a commitment within twelve months to implement all the recommendations from the Royal Commission’s report, including getting those children out of that jail. It does not contain and should contain increasing the age of criminal responsibility from ten to fourteen years. It does not contain and should contain dismantling the curse of mandatory sentencing. It does not contain and should contain legislating to return to allowing NT sentencing courts to take into account, when appropriate, Aboriginal customary law.

Those aspects aside, the best thing that could happen here—and it would be based on the evidence seen and heard in the Royal Commission—is for juvenile justice to be taken away from NT government control and taken up by an Aboriginal-controlled organisation consisting of appropriately qualified and experienced Aboriginal people. This would be culturally appropriate, effective, and cheaper.

On the 28 June 2021, in the Local Court of Alice Springs, Jake Roper pleaded guilty to various offences, including three police assaults that he committed, two of which occured while resisting arrest for a breach of bail. He is now twenty-one. Since his release from his experiences in Don Dale and giving evidence at the Royal Commission, his criminal record reveals several convictions for police assaults. He was sentenced to sixteen months’ imprisonment with a non-parole period of eight months. Bearing in mind his criminal record relating to assaulting authority figures, his prospects of ever getting parole are probably thin. Jake Roper’s story says it all. As was the case seven years ago, his fate can be seen as acutely symbolic of an entire generation of young Aboriginal people in the Northern Territory living under a broken, decaying and extremely punitive carceral system.

John B. Lawrence SC is a Darwin barrister. He was a Crown prosecutor in Darwin and later solicitor in charge of the Northern Australian Aboriginal Legal Aid Service. He is a past president of the Northern Bar Association and of the Criminal Lawyers Association of the Northern Territory. He represented one of the Don Dale youth detainees during the Royal Commission.