12 Land Rights News • Northern Edition July 2017 • www.nlc.org.au ’s Morality Play 2017 John B Lawrence SC*

n June 2017, the Royal Commission points not just to the obvious suspects Dale graphically illustrates that the night, and… that was my thought, you into the Protection and Detention of – the untrained, casual Youth Justice Department of Corrections, and others know, 10 years ago this would not have happened. So I think it is part of Children in the NT was in full swing. Officers (YJO) and Corrections generally who knew all about it, had descended to this general moral decay. Australia’s… Called by the Prime Minister of Australia – but more, much more. It has revealed a moral depth that you would not have in a really bad way here, and I don’t on 26 July 2016 following the ABC Four a Youth Detention System that was and thought possible even 10 years ago. In know how you return it to a mature, Corners screening of ‘Australia’s Shame’, still is operating in a deliberately punitive many ways that is the essence of what sophisticated, civil society” it had completed the evidence in relation and at times grossly inhumane way. this Royal Commission has discovered as Although we’ve just celebrated the to Youth Detention and was moving into regards how this could occur. The essence of the Inquiry is to now 25th anniversary of Mabo and the its second component, namely Child find out how this can happen in 21st Australia has lost its way, the Northern extinguishment of terra nullius as a legal Protection. century Australia, a developed country Territory has lost its way. The individuals concept, the psychological and human Much had been discovered, most of it which, in competition with Spain, is who make these decisions, knowingly reality of Aboriginal people being of less bad, and worse than what Four Corners presently applying for a seat on the and deliberately, have lost their way as worth still clearly exists. had revealed. When publishing the Royal United Nations Human Rights Council. far as being responsible, moral, decent The evidence has clearly established Commission’s Interim Report dated 31 That question is largely answered by human beings. that not only was this happening to March 2017, Commissioner Margaret the systemic nature of the inadequacies. It is the writer’s view that if they were Aboriginal children in the NT at the White said: Responsibility for the system’s shame non-Indigenous, such inhumanity hands of Don Dale staff, it was all being can be traced all the way to the t op. “What the Commission has heard over would not be allowed to occur. In done knowingly – by the Superintendent Everyone, including Corrections the last 8 months, and particularly other words, it’s racism. Pat Anderson, of Don Dale Russell Caldwell, the over the last 3 weeks in this Courtroom Minister John Elferink, Commissioner presently Co-chair of the Referendum Executive Director of Youth Justice and in , is that the system for Corrections Ken Middlebrook, of youth detention in the Northern Executive Director of Youth Justice Salli Territory has failed and, we think, is Cohen and the staff at Don Dale knew still failing [writer’s emphasis]. At every level, we have seen that a detention of the atrocious conditions that the system that focuses on punitive, not children were being indefinitely detained rehabilitative, measures, fails our young in, and the inadequacy of staff training people”. for those tasked with looking after them. It was during Ms Cohen’s reign that the The Interim Report made several other Behaviour Management Unit (BMU) telling observations: at Don Dale was used to hold children 1. the Youth Detention System is in isolation, in cruel and medieval likely to leave many children and conditions for extensive periods. young people more damaged than Between 4 and 21 August 2014, six when they entered; children were kept in the BMU which 2. the Youth Detention facilities are ultimately lead to their gassing on 21 harsh, bleak and not in keeping August. It was that incident which led with modern standards. They are to the NT Children’s Commissioner’s punitive, not rehabilitative; and report published in August 2015. That 3. 94% of children in detention report clearly details the unbelievable in the are conditions that Aboriginal children were Aboriginal, and therefore specific being kept in at Don Dale during that consideration must apply to time. Aboriginal children. Ms Cohen gave evidence that the plan Caption Amidst this, while the Royal was to hold the children at Don Dale Commission was sitting in Darwin in until the Berrimah Adult Jail was ready, Council, Chair of the Lowitja Institute Salli Cohen, the Commissioner for June 2017, the conduct of an NT Judge namely another six months. Further, and former President of the North Corrections Mr Middlebrook, and the sitting in the Youth Justice Court in no alternative “high security” section Australian Aboriginal Legal Aid Service Minister responsible Mr Elferink. They dealing with a 13 year had been identified for the interim. The (NAAJA) gave this evidence to the Royal all gave evidence admitting this, and old Aboriginal boy received severe public BMU was the only option, and they Commission: these people were the legal guardians of criticism. That coincidence revealed were there indefinitely. “There’s this psychological barrier to the children, responsible for their welfare a Youth Justice System riddled with When Minister Elferink was questioned any kind of acceptance that Aboriginal and owing them a duty of care. They all systemic problems and needing radical by the media in 2014 about the people are not… subhuman; we are, in knew that, and yet they did this to these repair, if not replacement. conditions in the BMU (their full extent fact, human beings and this is our place children. unknown to the media at the time) he and this is our country”. Royal Commission proudly defended them by saying that But more. All those children had lawyers, And, when asked to suggest an either from the Northern Territory Legal As you would expect with a Royal the children in question were “The worst explanation for the children being Aid Commission (NTLAC) or the North Commission tasked to investigate of the worst”. Just desserts for them. treated like this in 2014, she said: Australian Aboriginal Justice Agency systemic problems, the whole Youth The conditions suffered by these young (NAAJA). Not only the jailors and their Justice System and its players have been “You know, 10 years ago when we did Aboriginal boys were way beyond what the ‘Little Children are Sacred’ (report) masters knew: so did the defence lawyers placed under thorough scrutiny and any serial killer, rapist or paedophile it was inconceivable that that might who represented these children. Further, few have emerged looking good. The would experience in an adult prison happen here, even here in the Northern much of the detail of the conditions at evidence has revealed a crisis-ridden, Territory. I watched [the Four Corners anywhere in Australia. This situation Don Dale was conveyed by these lawyers dysfunctional “system”. The evidence occurring in August 2014 in Don program], like most of Australia that July 2017 • www.nlc.org.au Land Rights News • Northern Edition 13

Image: Chips Mackinolty to Magistrates sitting in the Youth Justice in which these children were being this. That action, brought on by AD “cooperation” and “collaboration” with Court who were making decisions about indefinitely held in the BMU. So much fighting back, was effectively the end the Department of Corrections – a bail and sentencing. for two wrongs not making a right! of the BMU. A 14 year old’s protest “productive relationship”. Well, the end This type of thinking and, dare I say product of this “productive relationship” The legal system’s awareness is illustrated brought to an end an infamy that no one it, “logic”, graphically illustrates the was a Youth Detention System that by the evidence of Mr Jonathon Hunyor, else had seemed able to end. That says it ethical sewer which the legal system had treated Aboriginal children worse than principal lawyer at NAAJA in 2014, that all really. descended into. animals, including gassing, restraint he and other NAAJA staff were actually On all the evidence, including that of chairs and being cooped up in the BMU shown the BMU at full capacity on 11 The arranged meeting between Ms Cohen about there having been for 16 days at a time. Aboriginal children August 2014. Corrections officials and NAAJA staff no alternative to the BMU at Don were abandoned by a legal system, was held at Don Dale on 11 August Dale, it is clear that, but for AD’s The reason for the visit in itself speaks which seemingly included their legal 2014, after which Mr Hunyor and actions, the detainees in the BMU volumes. It was the idea of Executive representatives. others were shown the now infamous Director Ms Cohen. Her rationale would have remained there indefinitely BMU. Mr Hunyor gave evidence All of this evidence was bad enough, appears logical, but reveals itself as – six Aboriginal children, all legally that once taken to the BMU, he was but there was worse to come. In my startling on analysis. By that time, the represented but effectively abandoned in shocked. He said it felt like a dungeon. opinion, the most dispiriting, negative Government had announced its decision conditions in which you wouldn’t place It was dark, dank, smelt of urine and and chilling evidence in the whole of to close Don Dale and reopen the an animal. Again, how could this happen the group looked at each other and st century Australia? the Royal Commission was that of derelict adult male jail in Berrimah to in 21 said, ‘Hang on a sec, are there kids Mr Goldflam on relative population accommodate the boys and girls from The legal system’s knowledge of what was in there?’. Although it was dark they projections, and what conclusions he Don Dale. being done to these Aboriginal children chose to draw from the figures. His had seen some movement through the was further evidenced by the President of Berrimah jail was over 30 years old and conclusions were what is often referred bars. The following day Mr Hunyor the Criminal Lawyers Association of the had housed some of the Territory’s most to as “The Malthusian Spectre”. I set this wrote an email asking questions and Northern Territory CLANT), Mr Russell notorious criminals: killers, rapists, out in full. On 13 December 2016, he expressing his concerns to Commissioner Goldflam. He is the Principal Lawyer for paedophiles, including Martin Leach, was asked: Middlebrook, who confirmed that kids the NTLAC’s Alice Springs Office where Andy Albury, Bradley Murdoch and the were in fact detained there, and would he has worked for 19 years. “So is it correct to say that part of – in like – men who had slept in the cells be for the foreseeable future. On 12 your opinion, part of the reason for that were now proposed to be occupied August, NAAJA also raised concerns Mr Goldflam gave evidence in the increase in numbers of children in by Aboriginal children, most of them with the NT Children’s Commissioner, the main as an expert to critique detention is because of the increase from the bush. The Commissioner for and, after receiving the response from Government policies in the youth justice of children as a proportion of the Corrections, Mr Middlebrook, had given Mr Middlebrook on 14 August, lodged field, particularly those of the CLP population of the Northern Territory?” sworn evidence at a Coronial Inquest in an official complaint with the NT Government from 2012-2014. Amidst Relying on a graph created by former 2011 that in his opinion Berrimah jail Children’s Commissioner on 20 August. his critique he revealed that the horrific NT Police Superintendent and now was fit only for a bulldozer. practices were well and truly known to CEO of Territory Families Jeannette As it happens, the children’s the legal profession: “We all knew that But, during this policy of punity and Kerr he gave this answer: incarceration in this dungeon ended there [were] terrible things going on in the hostility waged against Aboriginal on 21 August, thanks to the liberating youth detention facilities. Although Four “Well specifically Indigenous children… children, the adult jail was to be The biggest single cohort of Aboriginal actions taken by 14 year old “AD” Corners hadn’t been aired, it wasn’t a secret reopened. There was to be no more people is in the age group zero to four, (see previous story on pages 10-11), that spit hoods and chairs and all the rest Don Dale. Now the children, both boys whereas in the general population it’s in who was able to get out of his cell of it were being used”. and girls, were going to be kept in the the age group 25 to 29. And the effect after a Youth Justice Officer left it of that is that we know that over the former adult jail. In fact, the girls were Further, as a leader of the lobby group unlocked. I represented AD at the Royal next 15 years there will be a very large now earmarked for the old B Block, Commission. He ran free in the small CLANT who enjoyed a reputation for number of Aboriginal people attaining the former Maximum Security Unit adjacent courtyard area, taking out his championing civil rights and being a the age at which they have the capacity that truly used to hold “the worst of the pent-up frustrations and rage against stone in the shoe of the State, it emerged to commit criminal offences. And we worst”. “the machine”. He and the other kids that he had not opposed the legislation also know, tragically, that a very high which tried to legitimise the use of the proportion of those children grow up Needless to say, the decision had come were eventually gassed by the Immediate in families, households, communities Restraint Chair. His evidence on this was under criticism, particularly from Action Unit, a specialised unit brought with criminogenic circumstances. So that he believed the Bill was a “significant Aboriginal groups, including NAAJA. down from the adult jail and trained to it’s obvious that we’re going to see improvement on the pre-existing law”. So, Ms Cohen’s rationale for the visit to quell riots in adult jails. That decision – whatever else we do, an increase in youth offending. We are going to Don Dale was this: in order to persuade to deploy gas was approved on the Mr Goldflam also told the Royal night by the attending Commissioner see an increase in adult offending, NAAJA to agree with the Berrimah Commission that throughout his tenure and that demographic fact is a driver proposal, its senior members were to of Corrections Mr Middlebrook. Ms as President since 2011 he deliberately which we must not ignore. And – and be shown the scandalous conditions Cohen was also in attendance watching pursued a policy of “cordial relations”, it’s important for a number of reasons, 14 Land Rights News • Northern Edition July 2017 • www.nlc.org.au

a bond. He reoffended in May and was brought from six days in custody into the Tennant Creek Youth Justice Court on 6 June to plead guilty to a number of other unlawful entry and stealings. He was dealt with by Judge Borchers. In the court and for the boy were his CAALAS lawyer, his grandmother, a senior social worker and two volatile substance abuse nurses from Tennant Creek. At the beginning of the plea the defence lawyer, Mr Bhutani, made the point that there was some good fortune because the financial loss suffered by the victims of the boy’s offending wasn’t too great. The boy and others in the court then watched and listened to the Judge’s response: His Honour: “Client coming up with the money, is he Mr Bhutani?” Mr Bhutani: “No, Your Honour.” His Honour: “Family going to pay the money, are they, Mr Bhutani?” Mr Bhutani: “Not that I know of.” His Honour: “Who is going to pay the money, Mr Bhutani?” Mr Bhutani: “Your Honour, it’s a difficult situation. Unfortunately ..." His Honour: “No. No. Tell me, who do you think might pay the money, Mr Bhutani?” Service providers had indicated that the Floor plan of the Dan Dale cell block where juveniles were held death of his mother had “obviously taken a significant toll” on the boy, including but one of the reasons it’s important is Services, Head of Indigenous Strategy for country then learnt about the conduct of his decline in school attendance, alcohol we mustn’t set ourselves aspirational the Australian Red Cross and Executive Youth Justice Judge Greg Borchers in the abuse and failure to attend mental targets which are impossible to achieve Officer in the Human Rights branch Youth Justice Court in Tennant Creek on health services. His lawyer further and set ourselves up to fail yet again. We have to recognise that, to an extent, of the Department of Foreign Affairs. 6 June. said he “hadn’t reached the point of last Her evidence showed that by the success resort, taking into account his personal the problems of offending, of violence, It happened during a sentencing of property damage, of stealing and of Danila Dilba and other Aboriginal circumstances, the presumable grief and proceeding i.e., the child had pleaded of incarceration and punishment are health organisations, the future is in trauma he is going through”. Mr Borchers’ guilty to offences and his lawyer was problems that are beyond the reach fact bright. Her evidence was positive, response to that was, “I’d like to know of governments or criminal lawyers, presenting relevant considerations for aspirational and compelling, contrasting how they relate to breaking into people’s or any of us, and we have to cut our sentence. The child was a 13 year old greatly with the negative, resigned and property. Call one of them, anyone you like cloth accordingly. So I’m not trying to Aboriginal boy from Tennant Creek, bleak evidence of Mr Goldflam. and get that person to tell me how grief say that we should all just give up in whose mother earlier in the year had despair and go away, I’m just trying results into breaking into banks”. The evidence before the Royal been brutally beaten to death in the to emphasise the point that there are these demographic facts which, to some Commission has clearly vindicated and family home. Her husband, the boy’s Undeterred, the CAALAS lawyer extent, to a significant extent, drive the confirmed Prime Minister Turnbull’s father, had been charged with her again put to Borchers J the tragic future of our society”. reasons for calling it: “There are clearly murder and is now in the Alice Springs circumstances of his parents and the systemic problems with the justice system jail. fact it was relevant to his increasing Such evidence is not only fatalistic and in the Northern Territory”. The evidence absenteeism at school (79% attendance dispiriting, but it reveals a justice system At the time of the homicide, the boy has comprehensively confirmed this. to 26% after the killing), drifting into that is in desperate need of a revamp, was in Alice Springs at boarding school. For further confirmation, look at bad company, drinking and committing if for no other reason than it is in the His two younger sisters were in the observations in the Interim Report, offences. The Judge had this to say: hands of people who are now part cause house and are now Crown witnesses in which state that the system of detention of the malaise. the prosecution of their father. The 13 “There has been a bit of a breakdown in the Northern Territory “is failing our year old boy and his sisters are left with in your family; a significant breakdown. The good news is that during the Royal young people, it is failing those who work no mother, and their father is in jail for But, you’ve duchessed it. That means Commission that type of evidence in the system and it is also failing the you’ve taken advantage of it. You’re the foreseeable future. Understandably, was contradicted by witnesses such as people of the Northern Territory who are out and about on the streets with your the boy’s attendance at boarding school Ms Olga Havnen, the CEO of Danila entitled to live in safer communities”. mates, because no one is really in a deteriorated and he returned to Tennant position to look after you”. Dilba. Ms Havnen is an Aboriginal Creek, falling into the company of older woman from Tennant Creek who has Mr Bhutani sought release on bail so Judge Borchers Rails at youths, drinking alcohol, sniffing petrol, spent most of her life working on behalf the boy could engage in a number of Teenage Criminal wandering the streets and committing of Aboriginal people, wrestling against support services, allowing him to remain While the Royal Commission was offences of breaking in, stealing and systemic racism and non-Indigenous and work there, and have the support of discovering, if not confirming, this others. He was dealt with in March in institutional policies. She has been his remaining family. Mr Borchers told shameful state of affairs, the whole the Youth Justice Court and placed on the Coordinator-General for Remote him this: July 2017 • www.nlc.org.au Land Rights News • Northern Edition 15

to address it. For too long, we have been DNA evidence, motorcycle gangs in agreeing with too much that was wrong. Queensland and Crown disclosure etc., there was very little, if any, To CAALAS’ credit, as well as informing acknowledgement that there was a the Royal Commission of this conduct, Royal Commission looking into the they have made various complaints to NT Youth Justice System. There was the Chief Judge of the Local Court. In little mention of “the war” or that the writer’s view, there is no dubiety herd of elephants grazing on the lawns about the way in which the Judge outside. At this point in history, the NT behaved towards the boy that day: in the legal system seems to be in a state of writer’s view, Judge Borchers is clearly “hypernormalisation” – or, should I say, unfit for office. Further, in the writer’s the catch-cry of contemporary Australia, view, he seems to mirror many of the “It’s all good”. personnel and “systems” which this Royal Commission have discovered that The concept of hypernormalisation make up the now completely discredited comes from the book ‘Everything Was NT Youth Justice System. Forever, Until It Was No More; The Last Soviet Generation’ by Alexeis Yurchak As to what happens to Judge Borchers, (2006). Dealing with the period before one can only wait and see. But every the end of the Berlin Wall in 1989, minute an Aboriginal juvenile is exposed the book argued that everyone knew to him is a minute too long. Whether the system was failing, but as no one this can be viewed as a cover up or just could imagine any other alternative to instinctive, classic institutional, defensive the status quo, politicians and citizens stalling, doesn’t really matter. What were resigned to maintaining a pretence the community can see graphically is a of a functioning society. Over time John Lawrence addressing the NAIDOC march gathering, Darwin July 2017 system that is not up to the task, and is this delusion became a self-fulfilling not capable or willing to acknowledge “You’re not going back into the prophecy and the ‘fakeness’ was accepted unacceptable… inappropriate” and the same. The whole thing is beginning community. They can’t afford you. that what he had said should not have by everyone as real, an effect that It’s quite clear that you and your to smell like some kind of Freemasons apparent lack Yurchak termed hypernormalisation. family are not going to pick up the been said. He said the “ Society. damages for what you’ve caused. And, of empathy” in Borchers J’ accusations By the 1980s, it was clear to the Soviet Some of the profession want these presumably, and I infer this, you’ve got of duchessing was “sad” but that they Union that the dream had failed. No one matters to be dealt with “discretely”, out no understanding of that. You don’t and his “first world economy” comments believed in anything. No one had any know what a first-world economy is… of the public domain. Their argument is needed to be seen in a broader context! vision. Technocrats pretended everything you don’t know where money comes not without some merit: if these things Further in the interview, Mr Goldflam was going well. No one could imagine from, other than that the government are discussed in the public domain, revealed that the same Judge has been anything else. People became so much gives it out”. it will undermine the integrity of the carrying on in such a manner before a part of the system that they could Having given the lawyer and the boy Judiciary and will deny the individual this incident. In 2012 he had told an not see beyond it. Fakeness became sitting behind him that sustained tirade, involved “natural justice”. Well, that has Aboriginal juvenile that following his hypernormal. The whole ambience was he then remanded him in custody. A a logical ring to it, but the sad reality is release from sentence, he would not pessimism. There was no optimism for successful bail hearing was held one week that the NT legal system in 2017 has be allowed to return to Alice Springs the future. later. because he was “not fit to live in a civil now gone past its tipping points; way past. Respect needs to be earned and The whole performance by the Judge society” and would instead be returned maintained, not just individually, but Conclusion representing the NT Judiciary was one to the “unregulated lands of Anangu also with the institution of the Judiciary The Royal Commission has exposed of sustained bullying, at times nasty. Pitjantjatjaraku”. within the separation of powers and the unequivocally a justice system that is Such behaviour from a judge shames and What the Judge said and did to rule of law. unjust. The extent of the inhumanity undermines the authority, integrity and the boy was disgraceful. It was not and racism that ran through the Youth honour of the judiciary. Courts are called “inappropriate”, not “unfortunate”; it Situation Normal: “It’s All Justice System; the participation and “This Honourable Court”. There’s no was disgraceful. It is symptomatic of a Good” complicity of large parts of the legal honour here, none. What trust can the legal system which has lost its way. The system and the recent confirmation and As this was going on, the Royal community hold in a legal system where treatment of this 13 year old boy by a continuation of that by Judge Borchers; Commission was sitting in the a judge speaks to children like this? This non-Aboriginal man who has more than and the pretence maintained by the legal Darwin Supreme Court in the week situation again reveals a legal system that 10 years experience as a judge and 30 system as evidenced by the CLANT beginning Monday 26 June. While the has lost its way. years experience as a Northern Territory Criminal Law Conference – all of that Commissioners were hearing evidence lawyer is akin to the treatment of the now demands wholesale change. This can And so, amidst a Royal Commission into that day, having been alerted to the Aboriginal child detainees with restraint and must happen, otherwise Aboriginal the Youth Justice System, how does that transcript of Mr Borchers’ performance, legal system react to the Judge’s conduct? chairs, or putting them into those children will be facing no future. isolation conditions of the BMU and the rest of the Supreme Court building That conduct by a judicial officer then gassing them when they protest. was empty. CLANT was holding its The system has incrementally slidden anywhere, anytime beggars belief. To 16th biennial conference in Bali. Ironies into disrepair and dysfunction. behave like that while the NT justice We all know from Woodward and abound and the symmetry was surreal. Cooperation, complacency, Bernstein that it wasn’t the break in compromise, collaboration and system is under a Royal Commission’s So while the Royal Commission, of the Watergate Complex that ended resignation all contributed to the further scrutiny is staggering. The matter has appointed by the Prime Minister Nixon, it was the cover up. Well, what is disempowerment of Australia’s most been referred by the Central Australian of Australia, was comprehensively going to happen here? It appears that this valuable citizens, its Aboriginal children. Aboriginal Legal Aid Service, (CAALAS) investigating the systemic problems to the Commission for consideration, same Judge has been carrying on like this ‘Australia’s Shame’ indeed. before and the legal profession, including within the criminal legal system of the and goodness knows what the NT, much of the body of that legal *John Lawrence SC is a Darwin barrister. Commission will make of it. the Law Society, the Bar Association and whoever else is supposed to regulate system was over in Bali, attending He is a former Principal Lawyer at the North When interviewed as President of the legal profession, seem to have been the criminal law conference as if Australian Aboriginal Legal Aid Service, a CLANT, Mr Goldflam, described incapable of doing anything appropriate everything was “situation normal”. former president of the Northern Territory Bar Borchers J’s conduct as “unfortunate… While papers were being delivered on Association and a former president of CLANT.