‘Let us look at ourselves, if we have the courage, to see what is happening to us.’
Jean-Paul Sartre, preface to Frantz Fanon’s The Wretched of the Earth
The White/Gooda Royal Commission’s recommendations from four years ago have been largely ignored, and the Northern Territory’s punitive, carceral approach to dealing with Aboriginal children is worse than ever. The number of Aboriginal children held in the former Berrimah jail is at a record high. The prospects are desperate for these Aboriginal children and for reconciliation generally. This situation is being spearheaded by an NT Labor government—including an Aboriginal attorney-general—and is unopposed by Aboriginal Legal Aid and Aboriginal health organisations. The situation is further compounded by a media whose reportage on the gross calamity that is Aboriginal imprisonment is now piecemeal, as illustrated by its dearth of coverage on a recent Aboriginal male death in custody in the Holtze Prison.
The anniversary: nothing to look at here
The date 17 November 2021 marked four years since the publication of the White/Gooda Royal Commission report and recommendations in relation to the protection and detention of children in the Northern Territory. The Royal Commission flowed from the Four Corners exposé ‘Australia’s Shame’, which screened in July 2016, and it more than confirmed the abuse and unlawful treatment meted out to Aboriginal children held in NT detention centres in the 2010s. This included assaults, spit hoods, children kept in unlawful indefinite isolation, gassing, and that horrific and unforgettable restraint chair. The inquiry further exposed those responsible at all levels, none of whom were prosecuted. A couple of untrained, inexperienced youth justice officers lost their jobs. That was it.
Symptomatic of how unimportant this regressing situation now is to this country, there was no mention, never mind commemoration, of this date anywhere in Australia; you could have heard a pin drop. This was exactly what the NT Labor government would have wished for. The local and national media, including our ABC, chose to say nothing. The NT Law Society, plus the National Law Council of Australia, also chose to do and say nothing. Likewise the NT and Australian Bar Associations. The Criminal Lawyers Association of the NT (CLANT), formerly a loud and effective activist group but now essentially a social club for NT criminal lawyers, did and said nothing. Nothing was said by any Indigenous representative group; nothing was done or said by Danila Dilba, the Darwin Indigenous Health Service, which in June 2020 was awarded a $1.4 million contract with the NT government to provide “social and emotional wellbeing services” to the children kept in Don Dale, all of whom are Aboriginal; nothing from the NT Aboriginal Legal Service, NAAJA, which represents most of the children in both Don Dale and Alice Springs Detention Centres; and nothing from the NT Legal Aid Commission (NTLAC), which also represents Aboriginal children in both detention centres. All of this silence after four years in which the situation has got worse, where virtually none of the 217 recommendations have been really implemented, along with increasing and now record numbers of Aboriginal children detained in both Don Dale and Alice Springs Youth Detention Centres. Such deafening silence, manna from heaven for the culpable Labor government, illustrates the chronic moral condition of NT and Australian society, which compounds the desperate plight of Aboriginal children caught within the Territory’s juvenile legal system.
Martin Luther King’s famous words, ‘We will remember not the words of our enemies, but the silence of our friends’, are now the covenant of these abandoned Aboriginal children and their families.
Further illustrating this depressing lack of interest, on 30 August 2021, a 31-year-old Aboriginal man suicided by hanging himself with a bedsheet from an elevated bunk bed in his sole-occupied cell in Darwin’s Holtze Prison. The NT police issued a minimalist statement that day: ‘A 31-year-old prisoner died overnight and was found unresponsive in his cell’. No further details were given, other than the standard ‘the death is not being treated as suspicious’, which is doublespeak for suicide. Yet another Aboriginal death in custody, but blink and you would have missed the media’s reportage. Both the NT ABC and the NT News reported only the skeletal details in the police media release, with no journalistic expansion on such aspects as who the man was, why he was in jail and how long he had been there. For example, no one questioned the fact that he had hanged himself with a sheet from an elevated bunkbed—what was Corrections policy as regards hanging points in cells? There were no reports in the national media, including The Guardian, which was directly advised about it and which holds itself out as a paper that dedicates a lot of its reportage to Aboriginal deaths in custody.
The screw is being turned by the Labor government, with no real opposition from Aboriginal bodies who exist to represent the interests of these children and Aboriginal people generally, and media that give inadequate coverage to such issues, which should be to the front and fore.
Much is said these days about truth-telling. This is my attempt to set out what has gone on and is actually going on here. I have worked in the NT legal system for over thirty years. I have sadly witnessed this system’s degradation, which in recent years has been accelerating. This decline has been concomitant with a large drop in professional standards and quality, combined with and attached to a general moral and ethical decline, which has accelerated past tipping points to render this system dysfunctional, inhumane, racist, shameful and ultimately unsustainable. Further, such regressions have occurred in a jurisdiction that boasts the highest imprisonment levels in the world, with 86 per cent of adult prisoners Aboriginal and 100 per cent of juvenile prisonersAboriginal. My view is that the juvenile justice system now needs to be dismantled and completely replaced. I think they call that ‘transformational change’.
The unforgiveable reality is that everyone involved in this “system” is, to varying degrees, invested in its continuation—the maintenance of this dismal status quo. Australia as a country badly needs redemption and reconciliation with Aboriginal people. By 2040, 50 per cent of the NT population is projected to be Aboriginal. What has and continues to happen in the NT legal system flies in the face of achieving any proper and decent relationship between Aboriginal people and Australia, the nation. The Uluru Statement from the Heart has just floundered and this aspect is one of the reasons why.
The four years since the Royal Commission Report
At the time of the tabling of the report on 21 November 2017, NT Labor Chief Minister Michael Gunner told the Legislative Assembly, ‘I take responsibility for fixing the system so no future Chief Minister will have to address these same problems’. Dale Wakefield, then Minister for Territory Families, followed up by declaring that the report was ‘possibly the most important document that our government has received’. Words from members of the dreaded Australian political class really don’t mean much. Australia, the country whose current Prime Minister’s reputation is that of being a liar.
a) Don Dale Detention Centre
Predictably, the loudest recommendation (Recommendation 10.2) that White and Gooda made was that Don Dale should be immediately shut down. This was totally ignored. Aboriginal children are still there in record numbers and they’ve been there since 2014!
Don Dale Detention Centre was a custom-built Youth Detention Facility that opened in 1991. It was closed in 2014. It remains closed. The place where Aboriginal children are now held in Darwin is called ‘Don Dale’, but it is in fact the former Berrimah Prison for adult men. This same Berrimah Prison was described in 2011 by the then CEO of NT Corrections Ken Middlebrook as ‘only fit for a bulldozer’. Berrimah Prison was a condemned and mothballed structure in 2014 when then CLP Attorney-General John Elferink decided to close Don Dale Youth Detention Centre, reopen Berrimah Prison and put all the children in there. His explanation for doing so was to ‘enable us to deal with some of these juveniles who have caused us grief’. Aboriginal children, boys and girls, have been locked up in this place since 2014. NT judges have, since 2014, been sending Aboriginal children into this place. There is no way in the world this would be happening if those children were white. This feature alone presents as a good example of the normalisation and ennui that afflict all the players within the NT legal system.
This month, for the first time since children have been kept there, I was able to visit Don Dale. The experience was shocking. Cells previously occupied by paedophiles and murderers are now occupied by children. I’m representing an 11-year-old Aboriginal boy who is detained there, charged with a series of mainly property offences and bail breaches. The 11-year-old is kept in a small cell, alone with a broken TV. He gets locked down at 6.30pm each night. Alone. I visited him on two occasions, following which the well minded guards allowed me to walk through some of the jail precinct with my 11-year-old client, returning him to the ‘school room’ and the basketball court. I walked through its precincts in the heat of a Darwin day. It consists of crumbling concrete, rusted steel and worn iron mesh. The ‘joint’ no doubt hosts all kinds of criminal ghosts and spirits. It reminded me of the opening scene in Sir David Attenborough’s Life on Our Planet as he wanders through the crumbling 1970s-built Ukrainian town of Pripyat, the service town for Chernobyl, condemned and deserted since the explosion in 1986. The guard, the 11-year-old and I walked through this dystopian landscape to the darkened ‘school room’, a converted concrete pillbox-like room where the Aboriginal kids were all gathered watching some loud movie. It was raucous, bordering on chaotic. Dotted through this derelict jail are recently painted murals, a cynical attempt to try to humanise this dead zone. This Potemkin village window dressing merely compounded the sickness of the whole place. When I delivered this Aboriginal child into that classroom full of 14- and 15-year-old Aboriginal kids, for the first time ever, having worked in this field for over 35 years that horrible word “APARTHEID” came straight at me. The whole experience equated to, “This is where we put the blacks.” The reality, the ‘truth’ of this situation, is that there is no way in the world white Australian children would be detained in such a place. This looks like, feels like, equates to apartheid. How has Australia descended this low?
Failing to tell the truth matters. I record and disseminate these observations in order to expose the ‘looking the other way’ that normalises our growing indifference to truth. It was the heroic Second World War Polish resistance fighter Jan Karski who said, ‘He who does not condemn acquiesces’. What we have descended to here is very much the price of acquiescence—our harvest of neglect. So much of this fall is explained by more than twenty years of pursuing ‘the collaborative approach’ and acquiescing. And now we have silence.
In November 2018 the children themselves had had enough of Don Dale. They stole one of the guard’s keys and rioted, causing criminal damage that included burning down two buildings. They climbed onto the roofs and protested. The fully armed Tactical Response Group (TRG) attended, and after hours of stand-off and the deployment of tear gas, the children surrendered at gunpoint. Similarly, in July 2019, the children again escaped their cells and demonstrated from the roofs. Again the TRG attended. Following negotiations, the children surrendered.
This year provides a good example of the way this NT Labor government really treats Aboriginal children. Succumbing to the usual political pressures applied by exaggerated NT News stories about crime waves, etc., and following the only real policy they adhere to, that being ‘whatever policy keeps us in government’, the NT Labor government introduced amendments to the Bail Act and the Youth Justice Act guaranteed to increase the jailing of Aboriginal children. At the same time, in confident anticipation, they announced an outlay of $5 million to make available further closed-down cells from the former Berrimah Prison. The law was amended on Tuesday 11 May 2021, and within two months the number of Aboriginal children detained had gone up markedly. At the time of writing, the figures are the highest ever.
The government tried to sugar these punitive measures with a sleight-of-hand policy that reeks of political cynicism. It’s called the Aboriginal Justice Agreement (AJA) and comes from the Aboriginal Justice Unit, part of the NT Department of Attorney-General and Justice. The director of the unit and the face of the AJA is Leanne Liddle, an Aboriginal woman from Alice Springs who is a lawyer and a former South Australian police officer. She has just been appointed the NT Australian of the Year for 2022. The AJA is a classic piece of political chicanery and a product of the ‘Post-Truth Age’. It took all of four years to produce and apparently it will take seven years to take effect. It comes in the form of your usual attractive document, including dot paintings by Aboriginal primary-school children. It is an agreement signed by the NT Labor government, NAAJA, NTCOSS and others and consists in the main of classic mission-statement pap and revamped concepts, all of which have been produced and refined over literally scores of similar reports since the 1991 Royal Commission into Aboriginal Deaths in Custody and before. Words, words, words. Nothing new and no substance. It’s best judged by the things it chooses not to include, which would in fact reduce Aboriginal imprisonment, namely: closing Don Dale in accordance with Recommendation 10.2; a commitment to implement all recommendations from the White/Gooda Royal Commission within twelve months; abolishing mandatory sentencing; increasing the age of criminal responsibility from ten to fourteen; and allowing Aboriginal Customary Law to be taken into account, when appropriate, in sentencing.
The behaviour of this NT Labor government in not only failing to implement the Royal Commission’s recommendations but also compounding the severity of the carceral regime against Aboriginal children is unforgiveable. This Labor government consists of fifteen MLAs out of twenty-five. Five of them are Aboriginal. It’s a bragging point. We have a female Aboriginal attorney-general. We have a female Aboriginal speaker of the House. The optics might be stunning, but the truth is these amendments have been brought in by an Aboriginal attorney-general and supported by the other NT Labor Aboriginal MLAs. The only and telling dissent in the NT Parliament was from Aboriginal Independent MLA and Yolngu leader Yingiya Guyula, which was, of course, ineffective.
My attempt at truth-telling paints a bleak picture, but then why wouldn’t it? Australia as a country has descended in the last twenty years to being a place with no moral authority. Once known as the Lucky Country, it is now more accurately described as the Selfish Country. It is a country whose people have become more individualistic and self-centred. A country that, unlike other developed countries, chooses to cut its foreign aid to other countries. A country that, unlike any other, has prosecuted cruel and inhumane offshore-processing policies against thousands of refugees fleeing persecution. A country whose dreadful racist relationship with its Aboriginal population if anything only deteriorates. A country whose attitude and policies towards The Big One, climate change, are almost world’s worst, and whose elected prime minister tells the rest of the world, ‘The Morrison Government will always stand up for and make decisions which are in the Australian national interest’.
It seems to me that for this country to turn this around, it needs the people to take direct action. Frederick Douglass taught us that, ‘if there is no struggle, there is no progress’.
It’s not without significance that the only people in this sad tale who actually put up any real resistance or opposition to these wrong and barbaric policies are those Aboriginal children locked up in that hole the NT government calls ‘Don Dale’. They in many ways lead by example. The only way this country is capable of arresting this horrific trajectory is by people from all walks of life taking direct action against the injustices that abound. Our situation is similar to those faced by Emmeline Pankhurst, Martin Luther King and Mahatma Gandhi. They realised that the only way to achieve justice was to take direct action against the powers that be. The suffragette movement put it best with its motto, ‘Deeds, not words’. Australians, not just Aboriginal Australians, need to seize this moment now, as time is rapidly running out. As Eddie Mabo’s Counsel, Ron Castan QC, put it: “A belief in justice is empty if it’s not expressed in action.”
As the Clash sung back in 1979: “…I never felt so much alike, alike, alike…”
We were out in Gudanji country, a place some of us older people know well. But we didn’t know where we were. The river had gone, huge mountains of waste rock were piled high in the sky, blocking our view of The Barramundi Dreaming… We were lost in our own country.