Society

Indigenous Australia

Backsliding
The Territory abandons the Don Dale royal commission reforms

There’s a new story we’re telling ourselves about teenagers who commit crimes. They’re a “new breed”, we’re saying. A “cohort” that’s more violent, more intimidating, more hardened than anything we’ve ever seen. The old ideas – education, rehabilitation, reintegration – don’t work anymore. The tabloids and the new “reality” cop shows, the ones that embed the camera alongside police officers as they charge around arresting crims, are strong proponents of this story.

So, increasingly, are governments. When Jenny Mikakos was the minister responsible for the welfare of the teenagers locked up at Melbourne’s Parkville Youth Justice Centre when they rioted in November 2016, she called them “the worst of the worst”, and bussed them illegally into a maximum-security unit in the middle of Barwon Prison. It didn’t matter that the riots were a predictable reaction to a continuing failure by the government to adequately staff the centre, a failure that meant that boys and girls were being locked in their cells for up to 23 hours every day. (Predictable, because practically every recent prison riot has followed periods of mass “lockdown”.) That’s not part of the story we’re telling now, and anyway, governments never blame themselves for failing kids. Fifteen-year-olds with terrible histories of abuse and neglect provide much more convenient scapegoats.

The latest government determined to scapegoat kids is Michael Gunner’s Labor administration in the Northern Territory. On Tuesday night this week, NT Labor – which controls the Territory’s single house of parliament – rushed through amendments that will make it much easier to incarcerate kids, and much harder for them to get bail. Until now, teenagers who (allegedly) break the law have been at liberty, on bail, while their charges move (often very slowly) through the courts, unless there’s a compelling reason they need to be remanded. Beginning this Friday, however, a child who commits what the legislation calls a “serious breach of bail” – if they breach curfew or “tamper” with their electronic monitoring device (EMD) – will need to overcome a presumption against them being bailed again. And they can’t be bailed again unless they either wear an EMD or stay at “supported bail accommodation”.

In practice, that will mean a lot more kids in the Territory’s two youth detention centres: Don Dale in Darwin and the Alice Springs Youth Detention Centre. Curfews are popular with Territory judges, who, when they impose them, must be imagining home conditions that are rather more stable and nuclear than they really are. Many kids in First Nations communities might stay with mum one night, an auntie the next night and an older cousin-sister the third night. They might need to avoid a dangerous situation at one house by staying somewhere else. But the way curfew conditions are crafted by Territory judges allows cops to check on a particular child at any time of the night – even multiple times in a single night – and arrest him if he’s not where the curfew condition requires him to be. Lawyers have been arguing for years that a curfew should be about ensuring a kid is off the streets, rather than keeping him in a particular household. Police should only be authorised to arrest a kid for breaching a curfew if they find him outside, not merely if they discover he’s at his uncle’s place instead of his grandparents’. But police often resist that idea, and the courts regularly conspire to set children up to fail.

“I make absolutely no apologies for officers checking up on these kids,” a police prosecutor told me in a Katherine courtroom in 2019. “The little shits are out of control.” It’s doubtful that judges, when they set curfew conditions, have in mind the kind of police behaviour often experienced by kids and their families at the hands of fully armed police officers late at night, but that’s one of the many deceits that operate throughout Australia’s “justice” system. And anyway, the “little shits” are often “out of control”. Ever since the industrial revolution, the bourgeoisie has expected the state to keep them and their property safe from the children of the unruly underclasses. A more honest accounting of the facts would take into account the governing state’s historical and continuing efforts to suppress and criminalise First Nations law and culture. It would accept that kids growing up in a capitalist economy with no real access to its benefits, while bearing the legacy of 10 consecutive generations of state-perpetrated trauma, are unlikely to behave all that differently to kids at the bottom of the class structure everywhere else.

Nobody who is familiar with police attitudes to youth crime in the Territory was surprised to learn that police co-drafted the Youth Justice Legislation Amendment Bill that flew through Darwin’s Legislative Assembly this week. What is perhaps slightly more surprising is that police were so readily able to convince Michael Gunner’s government of the need to get tough on youth crims, just three and a half years after a royal commission reported that successive Territory governments had failed so spectacularly that their quest to punish and control teenagers led to young people being shackled to chairs with their heads entirely covered by tight-fitting hoods. Gunner’s ALP came to power just after those Abu Ghraib­–style images appeared on Four Corners and Malcolm Turnbull ordered the royal commission. Labor was voted into government in 2016 in large part because Aboriginal voters who had deserted it in 2012 returned, hopeful that the party would at last take action on the fact that the Territory’s prisons, youth detention centres and courts had practically become institutions specialising in Aboriginal incarceration. Aboriginal people in the Northern Territory and Western Australia are now the most incarcerated people in the world.

But when Selena Uibo, a former teacher with Nunggubuyu and Wanindilyakwa heritage, took over as attorney-general in mid 2018, youth bail “reform” was at the top of her agenda. Dozens of Aboriginal party members who make up the Indigenous Labor Network tried to change the leadership’s mind, but cabinet was not for turning. After implementing some of the royal commission’s easier recommendations in 2018, the government reversed many of them just 10 months later. The backtracking has now culminated in this week’s amendments, which seem targeted at Aboriginal kids who don’t behave as courts and police would like them to.

As always, legislation cracking down on “youth criminals” is mostly about power and control. The Don Dale royal commission always played differently in the Territory, where seven in 10 voters are settlers, the majority of whom retain frontier-style attitudes. For them, the royal commission was an intervention by do-gooder southerners who don’t understand the costs borne by settler businesses and households when Aboriginal kids repeatedly break in looking for food and grog. Of course, increasingly punitive reactions don’t work either. The only point at which punishment achieves the goal of zero offending is that point at which every potential offender is locked up and never to be released. Anything less than that only contributes to recidivism and makes the problem worse. Perhaps that’s why the Country Liberal Party Opposition seems determined to bring about a state of perpetual incarceration: its only criticism of the government’s bail reforms this week is that they don’t go anywhere near far enough.

In the end, there was only a single vote against the Youth Justice Legislation Amendment Bill on Tuesday evening: that of the Independent MLA Yingiya Mark Guyula, a Yolngu man who had upset Labor’s deputy leader at the 2016 election. There was fierce opposition to the bill from a minority outside parliament, led mainly by Aboriginal elders, organisations and communities, health and legal services, and the NT Children’s Commissioner. But the North Australian Aboriginal Justice Agency (NAAJA), the huge legal service that now operates throughout the Territory, was largely missing in action. Apart from a couple of quotes that its principal legal officer, David Woodroffe, provided to news outlets when Gunner first announced his intentions, NAAJA has stayed out of the fray. It didn’t even attend a protest organised by Larrakia leaders and the Indigenous Labor Network on the steps of parliament last week. This is consistent with the “inside the tent” strategy NAAJA has adopted since Gunner’s Labor was elected in 2016: in exchange for a seat at the government’s table, it has largely refrained from public criticism.

Labor continues to promise an Aboriginal Justice Agreement (AJA), “community courts” and the repeal of the Territory’s mandatory sentencing laws. But AJAs were supposed to come out of an even earlier royal commission, that into Aboriginal deaths in custody, which reported three decades ago. The Territory remains the only jurisdiction without one, and this month’s budget again found no money for it. A royal commission–inspired push to raise the age of criminal responsibility from 10 years of age crashed into obstinate government resistance. It’s now clear to everyone except NAAJA’s executive leadership, apparently, that “inside the tent” has worked to benefit the government at the expense of First Nations interests.

The stories we tell ourselves about youth crime in the Northern Territory bear very little relationship to reality. Judges blame kids for escaping from “supported bail accommodation”, even where that accommodation provides few of the activities and services promised to government funders, so kids ordered to stay there are bored witless while removed from friends and family. Judges blame kids for breaching curfew, even though it was always clear to everyone that the curfew condition was worded in a way that was inconsistent with the way people live. And judges, police, newspapers, shopkeepers and politicians blame and punish kids for offending, when any sane analysis would recognise that children are products of their society and the world we’ve created for them.

Russell Marks

Russell Marks is a lawyer and an honorary research associate at La Trobe University. He is the author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 

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