Inside Story

Three years later, the Territory’s post–Don Dale reforms are faltering

After a burst of youth justice initiatives, Michael Gunner’s Labor government has lost momentum

Russell Marks 11 September 2019 1763 words

Opening a rare window: Mick Gooda and Margaret White, members of the youth justice royal commission, touring the former Don Dale youth detention facility in December 2016. Elise Derwin/News Corp Pool/AAP Image

Gearing up for what promises to be a bruising election year, the Northern Territory’s Labor government has been distancing itself from the promises it made during the last election campaign to reform the justice system. “Australia’s Shame,” the Four Corners report detailing the torture of teenagers in Don Dale, had set the scene for that year’s campaign, creating hopes that an incoming Labor administration would swiftly repair the Territory’s justice system.

It was the end of a horror four-year stretch during which the Country Liberal Party government had introduced mandatory sentencing, “paperless” arrests, and “spit hoods” and restraint chairs in youth detention centres. Promising progressive, evidence-based reform, Labor won the election with a landslide. The Four Corners–inspired royal commission reported a little over a year later, in November 2017, and in March the following year chief minister Michael Gunner’s government set limits on when and how force could be used against teenagers in youth detention centres.

But the reform effort slowed — and occasionally reversed — during the year that followed. In March this year, the government retrospectively repealed its “use of force” restrictions, suggesting that it was increasingly influenced by the Don Dale staff and their unions. But it was the way the repeal bill was introduced and rushed through parliament that indicated Gunner and his colleagues were no longer listening to reformers.

In March 2017, to mark a new era of accountability and consultation, the government had set up the Legislative Amendment Advisory Committee, or LAAC. The LAAC brought together key government departments, non-government agencies and Aboriginal organisations to help develop the legislation needed to implement the royal commission’s recommendations. In August that year, following public consultation, the government delivered on another major election promise: a new system of “policy scrutiny” committees to mimic the work of upper house committees in other parliaments.

By the time they reached a parliamentary vote, though, the March 2019 amendments to the Youth Justice Act had bypassed both the LAAC and the scrutiny committee processes. Major players like the North Australian Aboriginal Justice Agency, or NAAJA, which had refrained from publicly criticising the government on the promise of access and influence, hadn’t been consulted at all about the bill.

The following month, the Criminal Lawyers Association of the NT withdrew from the LAAC altogether, and NAAJA and the NT Legal Aid Commission followed soon after. What happened next is the subject of wildly divergent accounts. The Legal Aid Commission and others say the government suspended the LAAC “indefinitely” after some of its members voiced their disapproval of how the March amendments had been pushed through. A spokesperson for Territory Families, the government department handling the changes, denies that’s the case, and says that the LAAC continues to meet monthly. If so, those meetings are likely to include only its government members: the departments of the attorney-general and justice, the chief minister, Territory Families and police.

Most of the LAAC’s former participants — including NAAJA, the Legal Aid Commission, the Criminal Lawyers Association, Aboriginal Peak Organisations (NT), the Aboriginal Medical Services Alliance NT, the Danila Dilba Health Service, the Human Rights Law Centre, Jesuit Social Services, the Law Society NT, and the NT Council of Social Service — have combined with others, including the Northern Land Council, to form a new youth justice coalition. Its role, according to Criminal Lawyers Association president Marty Aust, will be “collective advocacy and strategic engagement” together with broader community consultation.

Even before the LAAC’s apparent suspension, non-government organisations had been complaining about its ineffectiveness. “Police would attend [and] agree with proposed positions,” says one senior representative of a former LAAC member, “and then when submissions were prepared for cabinet they would adopt a completely different position.” Members still receive invitations to LAAC meetings, says another representative, “but it’s clear from the draft agenda[s] that these are more ‘information sharing’ forums rather than any meaningful discussion or capacity to influence or shape the legislation reform agenda.”

As well as the retrospective “use of force” changes in March, armed police have returned to Territory high schools during the past year, police have used tear gas against teenagers at the Don Dale Centre, and the Territory Families minister, Dale Wakefield, has announced that Don Dale’s replacement will be built practically next door to the existing adult prison at Holtze, outside Palmerston.

None of these developments is consistent with the royal commission’s recommendations. Three years into the Gunner government’s first term, the persistence of mandatory sentencing laws, “paperless” arrest powers, tear gas in youth detention centres, and “swift justice” changes to court procedures suggest that the Country Liberal Party’s hardline legacy is likely to prove much more enduring than the short-lived reforms of Michael Gunner’s Labor Party.

In opposition back in 2016, the Labor Party advanced what it called Six Asks to Make Justice Work for Territorians. In government, it claims, with some justification, that it has improved its youth diversion processes, reduced the number of children in detention, and delivered a “comprehensive plan to deal with alcohol.” (Whether that plan is any good is another question.) So that’s a tick for Asks #4 and #6.

The government has also created dedicated Youth Outreach and Engagement Officers to help young people engage with services in the community, and so argues that Ask #3, “rehabilitation and reintegration,” should also get a tick. (In my experience as a lawyer in Katherine, these officers are too few in number, too under-resourced and too unsure of their roles to be particularly effective.)

Ask #1 was an Aboriginal Justice Agreement, or AJA, a kind of contract or memorandum of understanding that would guide policy and practice in all matters of justice affecting Aboriginal people. All other states and territories have them; it speaks volumes about the Territory’s approach to race relations that it doesn’t, despite its relatively large Aboriginal population and despite the fact that non-Indigenous people are in a tiny minority in its prisons and youth detention centres. But the government does have an AJA advisory committee, chaired by NAAJA, and despite some grumblings about its effectiveness the government is entitled to mark Ask #1 as a work in progress.

The hope is that specialist and therapeutic courts (like the Koori Courts and the Drug Court in Victoria) will flow from the AJA once it’s formalised, though there haven’t been many noises about these since the election. Aboriginal sentencing courts exist in most other jurisdictions; in the Northern Territory, defendants are lucky if they get an interpreter who can translate details of a sentence that often involves complicated combinations of backdated prison time, a dozen or more conditions and a lengthy operational period, a breach of which will trigger a new combination of prison and conditional supervision. Ask #2? Don’t hold your breath.

And what about the big one, Ask #5, “Abolish mandatory sentencing”? Not a chance, it seems. Mandatory sentencing has had the predicted effect since it was introduced in 2013 — it has inflated the Aboriginal prison population without doing anything to curb violent crime. When the parliamentary Labor Party’s only lawyer, Jeff Collins, a former president of the Law Society, was sacked from caucus in December last year, he said it had a lot to do with the fact that he kept trying to talk about mandatory sentencing. Chief minister Gunner simply said that Collins and two colleagues “were dismissed for breaking the caucus values and standards signed up to at the beginning of our term.”

Perhaps the forum with the greatest chance of convincing Gunner to abolish mandatory sentencing is the AJA committee chaired by David Woodroffe, principal lawyer at NAAJA. Woodroffe’s criticisms of the Gunner government are rare, but he did renew a very public attack on mandatory sentencing at the National Indigenous Legal Conference in August.

In hindsight, the fact that Labor’s Asks were not articulated as “promises” seems clever, if disingenuous. “Paperless” arrests are still being made for minor infringement-notice offences, and defence lawyers are still being required to give away much more of their clients’ case in courts than they would like, thanks to the continuation of former attorney-general John Elferink’s “swift justice” amendments in 2015.

Good reform needs the stars to align. It needs champions inside caucus and cabinet, but they don’t exist — especially since Collins’s sacking. It’s not difficult to imagine that he could have played a similar role in the Gunner government to the one Rob Hulls played as attorney-general in the governments of Steve Bracks and John Brumby in Victoria; as things stand, Gunner’s attorney-general is a former PE teacher. Good reform also depends on a capacity to execute and implement reform, but the entire Territory executive is marked by its youth and inexperience. And good reform needs a strong, vocal civil sector prepared to intensify public pressure on the government, mould public conversations and call governments out for their failures and regressions.

If mandatory sentencing is to go, perhaps via the Aboriginal Justice Agreement, it won’t be until Labor is returned in 2020. Meanwhile, the party has learned that its internal stakeholders — the police force and its association; and youth justice officers, corrections staff and their unions — can be much more persuasive than the legal and Aboriginal organisations that have, until now, prioritised maintaining relations with the government.

For the government, the era of the royal commission is over. A Territory Families representative says “the bulk of legislative amendments following the royal commission have been produced and tabled in parliament.” In reality, there is plenty left to do, not the least of which is to raise the minimum age of criminal responsibility from the current ten. The rare window forced open by the commission has closed; a golden opportunity to make radical, evidence-based reforms in the interests of offenders, victims and all Territorians has been missed.

Buoyed by a public whipped into a frenzy by the tabloid media and Facebook echo chambers, the Country Liberal Party opposition and its high-profile Warlpiri candidate Jacinta Nampijinpa Price will campaign loudly over the next year for tougher penalties and longer sentences, especially for young offenders. Keenly aware of the electoral challenge, the Gunner government is unlikely to take much advice from the non-government organisations and their new youth justice coalition. These organisations are caught in a bind: they fear that criticising Labor publicly will make a Country Liberal Party victory — and the rollback of reforms inspired by a royal commission that the CLP’s John Elferink dismissed as a beat-up — all the more likely. •