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Introducing Law The Podcast: Child Protection in the Northern Territory
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A
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B
Welcome to Law the Podcast. I'm Lex Lasry, former Victorian and Northern Territory Supreme Court judge and recently retired from the Northern Territory Supreme Court.
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C
I'm Greg Barnes. I'm a barrister, I'm a senior counsel and I've got a long standing interest in law reform issues.
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B
So, Greg, this is the first episode of Law the Podcast. I suppose we ought to have a quick chat about what we expect to get out of this and what the podcast is about. It's not a podcast for lawyers. It's a podcast for everyone interested in legal issues. And we'll talk about legal issues, both Australian and international legal issues, and broad legal issues, including political legal issues. So it should be an interesting journey.
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D
Yeah.
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C
And you know, I think that the point is, and I often say this to people in discussions, the law is our lives. We live the law every day. And the decision that courts make, the decisions that governments make when they pass laws, and the way the law interacts with people, you know, is really important and we often see it in a sort of one dimensional way we, we think of law. If you ask people what's the law, they'll often just say, you know, a judge and a jury, something of that nature. And of course, the law is really complex and it does need, I think, a podcast like this to get people interested, to understand because it can be, as we know, Lex, a very dry topic.
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B
Yes. Well, in this first episode, we're certainly going to be talking about the way the law affects people because we're going to be concentrating on very recent developments in the Northern Territory with ABHI Rajkumar, who's the Vice president of the Criminal Lawyers association of the Northern Territory. We'll be going into some detail with her about issues in the Northern Territory which in my opinion, Greg, everybody in the country ought to be interested in. You're up there at the moment. I am.
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C
I know that you've been up here previously and your reputation is intact. Lex, I've fixed it for you.
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B
Yes, thanks. Done nothing to diminish it, I hope.
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C
I've done nothing to Diminish your great reputation. But I am up here for a couple of weeks. I've been working with naja, the Aboriginal Legal Service. A lot of young lawyers there. It's a fantastic, enriching experience. But also, we'll talk about it more. The territory is a hard gig.
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B
Yes, it is.
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C
The things that are happening up here are extraordinary and it should be Australia Wide News. It reminds me a bit of the Deep south in the United States and the stories you hear there about the systematic racism and the way in which the place operates is, you know, really in many ways an apartheid state in terms of how the justice system and society operates.
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B
Yep. All right, so we'll get into it. To those people who are listening for the first time, don't forget to like and subscribe. That helps us. It helps our podcast get noticed by people. And that's important to get the word out and to get the issues talked about. So we'll get underway.
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C
The Northern Territory government has decided on legislation after that tragic death of that young girl in Alice Springs earlier this year.
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D
A man has been charged with the murder of a five year old girl in Alice Springs along with two other offences. The girl now known as Kumanjayi little Baby disappeared from the Old Timers Aboriginal Town camp, triggering a massive spirit they've
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C
decided to put through the Parliament and of course there's no upper house here, so it just goes straight through, which really weakens the protections for Aboriginal kids and without any exaggeration you'd have to say is creating a stolen generation for the future. There've been a number of protests. I know that some of my colleagues at NAJA have been in those protests this week. But unfortunately the bill is now.
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B
Well, we're very lucky in this episode to have ABHI Rajkumar with us. Am I right? That one of the main things that the legislation does is repeal something called the child placement principle that was, I think, a result of the Bringing Them Home report. How did that principle work and why is it so significant?
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E
That is right. So it's the Aboriginal and Torres Strait Islander child placement principle, which is a principle that was nationally agreed by every single jurisdiction. And this legislation is a clear divergence from that principle, which is why every single state and territory, apart from Queensland and the Northern Territory, their child protection ministers have written a statement affirming the importance of the principle and making it very clear that that principle needs to be central to child protection decision making and also makes it clear that it's entirely consistent with child safety. So this idea that you know, moving away from this principle is about making children or the lives of children safer or making sure that we're keeping children safe is completely not true. It's a principle that is fundamentally was put in place to ensure that Aboriginal and Torres Strait Islander children have connections to culture and family and kin in a way that is safe. That is, if children aren't allowed to remain in their family home for whatever reason, that there is still an acute and proper avenue and mechanism for them to continue those important connections to culture, family and kin. And really that's just gone now. So it's not even about watering it down, it's just gone.
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C
Naja put out a very, very good and comprehensive release on this on the 10th of July, which is still current. Cause the bill didn't change. But one of the things it pointed out was currently. Well, in the legislation as it was, there were rights for Indigenous children and their families and communities. So one of the protections, for example, was that there had to be consideration to an Aboriginal child's right to enjoy the Aboriginal culture and tradition of the child's family and community. And you know, obviously through that connection, that's now been weakened using a phrase, and it's used a number of times where their rights have been stripped away. It's now the phrase should, should be given the opportunity to participate. So there's nothing mandatory about it at all.
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B
Am I right in saying that one of the things that was a hallmark of this legislation was the complete lack of consultation and the very short time for anyone to say anything about it before the government put it before the Parliament?
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E
That's exactly right. And as we're all very much aware, what's incredibly risky about legislation innately is when legislation is passed this quickly, when it's passed this quickly without a proper exposure draft, for example, time for groups and bodies and individuals to express their concerns. Obviously the opposition put forward some amendments that were informed by community and by people on the ground, including lawyers, and none of that's been heard. And a reflection of why that process was such a. An appalling and frankly disrespectful approach to lawmaking is the fact that the Children's Commissioner, Sharleena Musk, who was the first Aboriginal Children's Commissioner here in the territory, decided that all she could do was resign because it was so clear that the government simply wasn't going to listen.
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C
I mean, it's just extraordinary that in the 21st century you would get legislation which is designed to diminish the rights of, of the most vulnerable group in the community Australia wide, but certainly in the Northern Territory. It's an extraordinary piece of legislation and I think what it again shows, and I'd be interested in Abby's comments on this because she of course worked for Mark Dreyfus, the former Attorney General in the Albanese government. A lack of a Human Rights act in Australia, this sort of legislation probably wouldn't pass muster in somewhere like Canada. What do you think?
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E
I think that's exactly right. There's a reason why so many groups have been pushing for a Human Rights act for so long. It would provide Australia a proper framework to make sure that we're able to properly protect against legislation like this. But frankly, I'm not surprised that legislation like this has passed in the Northern Territory. We've. We're in a situation, unfortunately, when it comes to the justice system, where, for example, senior ministers and the Chief Minister of this territory thinks that increasing the prison population is a good thing, that it's a sign of success in the justice system. And legislation like this, whilst it's about the child protection system, will of course have a direct impact on the justice system.
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B
What's their rationale for doing it? I mean, what do they say will be the benefits of the legislation?
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C
Well, I mean, that's it. I mean, the reason I think there's silence by Abby himself is it's a very good question.
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B
Do they not try to rationalise it? They don't bother, they just do it.
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C
I'm gonna say this because I don't come from here, but I think this is an element of the systemic and entrenched racism of conservatives in the Northern Territory. I mean, if you tried this sort of legislation, Lex in Victoria, which is by no means perfect, I mean, it would be seen as outlandish and seriously inhumane. But, you know, in terms of what's happening here, what's dangerous about it is that every expert, like every expert within the territory and outside the territory, says this legislation is the wrong way to go, turn back, and yet government just ignores it.
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E
I think fundamentally the government is trying to explain this legislation by saying that by getting rid of that principle or by watering down that principle, we will ensure that children, Aboriginal and Torres Strait Islander children in particular, are dealt with earlier, that there's earlier interventions. And what they're trying to say is that right now children are left in unsafe environments for too long a period of time and they're simply left in those environments because they are Aboriginal or Torres Strait Islander and they're blaming the principal and that is fundamentally incorrect, which is what that statement from all of the other ministers across the country have said. And sorry, we should discuss this. Actually, Greg, at the outset, nobody, none of us want to see children in unsafe environments who are being treated poorly, who are, who are simply not being able to, you know, who are in a position where they're not able to be taken care of by their parents. None of us want to see that. No, this legislation isn't about that. And I think that's the point that we really need to drum home and make sure that Australians across the country understand the principle itself does not interfere with ensuring that all children are safe. And unfortunately, the government is trying to spin this legislation, which as Greg has rightly pointed out, absolutely is rooted in systemic and institutional racism. They're trying to spin the legislation as something that they're doing to keep Aboriginal and Torres Strait Islander children safe. And frankly, we can't just sit back and accept that that's why they're doing it.
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B
So does it mean that there's a challenge coming up in relation to legislation?
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C
I would have thought so. There's, as we all know as lawyers, there have been a number of challenges to NT legislation. I remember, I think there was a challenge in relation to the intervention legislation in 2007. So I wouldn't be surprised to see some claim. I think lawyers will be all over this and for the right reason.
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E
Let's not forget that we're facing a federal court challenge about dictating a cap on compensation when the government acts unlawfully in prisons. Yeah, I mean, we've got a history of challenges and there's a reason for it and it's because we've unfortunately set this precedent of bringing in laws like this that are rushed, that haven't been properly consulted and it's all to make political points.
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C
I mean, and this is not just NT related to Australia wide, but the hate speech laws passed earlier this year. There was a one day hearing, I think of a Senate committee and then a week or a few days to put your submissions in and the bill was already drafted. This is the same problem. And it's, and it's, I mean, as you've just said, Abby, the problem is that you get bad legislation, you get bad outcomes.
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E
That's exactly right.
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B
I was going to ask you, Abby, about the Northern Territory have now sought to cap, haven't they? Payments to people who are the victims of unlawful acts in prisons, illegal strip searches, assaults, various other things which are compensable. If someone can demonstrate that the officer concerned was acting unlawfully. The Northern Territory have now sought to place a financial cap on how much compensation can be paid, and that is now the subject of federal court challenge.
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E
Well, many Australians may remember the Four Corners report on Don Dale Youth Detention Centre, when kids were tear gassed and spithoods were used against them.
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F
Those cells were ghoulish. They were something medieval, something. They were kept in those cells for up to 24 hours a day. They had no running water. The only water in the cell was in a toilet. So they couldn't even wash their hands. They had to request water. They had to eat food with their hands. It must have been sheer hell. Sheer hell.
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E
That was an example of the territory using draconian methods and, frankly, torturous methods in a youth justice setting. And obviously all of that then went, made its way through the courts and various compensation payments were paid out. In 2021, the Northern Territory sought to bring in caps. For example, if an illegal strip search took place, I think it was about a $6,000 cap. If there was an illegal assault, it was about a $3,000 cap. Prior to that, there was no cap. And you've got to ask yourself why the Northern Territor and thinks that we need caps in order to make sure that the government doesn't have to pay out huge amounts of money for the way in which it treats prisoners.
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B
Well, we know, don't we, that it's almost an acknowledgement that there's unlawful activity going on all the time, which, if properly compensated for, is very expensive.
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C
Well, and of course, this encourages unlawful behaviour. This encourages another Don Dale, because, you know, you'd go to a lawyer and a lawyer would say, well, you're only gonna get $6,000 or $5,000. A lot of work in this and there's, you know, no serious compensation, makes it difficult to run these actions. The other thing I should say is you're talking about spithoods. As I understand it, the current government has said spithoods are back.
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E
They have, yeah.
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C
Despite the internationally shameful figure of Dylan Voller in the wheelchair with the spithood, this government says, oh, well, who cares? Who cares? You know, it gets me a vote, you know, in Catherine or Alice Springs or Darwin. I'll do it. It's just, you know, you combine that with capsicum spray. I understand, Abby, that there will be armed officers on buses.
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E
That's right.
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C
This is the Deep South. I mean, Trump would come here and say, this is fantastic, this place. This Chief Minister's doing a great job.
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E
He would. And it's something we should all be incredibly embarrassed about.
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B
Yes. What's the idea of armed officers on buses? What are they there for?
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C
Well, there's so much lawlessness. I've seen a few buses driving past. I have to say, they look very sedate to me. But apparently there's some terrible lawlessness on buses to the point where you have to have officers with guns. I mean, you can just imagine a confined environment in there. A person with mental illness, for example, has an episode on a bus, which is frightening for people, and you could imagine some panicked kid who's, you know, in a uniform just pulling the gun out. That's what'll happen inevitably. I mean, you hope not, but it's inevitable.
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B
The other issue, which, Abby, I was wanting to ask you about, although it's been bubbling away for a while now, but there's a serious issue about legal aid in the Northern Territory, isn't there? And in particular, whether or not the territory government is funding legal aid properly so that the workload can be dealt with. Am I right about that?
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E
You are. And it's an incredibly concerning reality here in the territory, where unlike every other state and territory in the country, if you need a lawyer, you won't necessarily get one. We've spoken at length in the past about how important legal aid is, not just in the territory, but across the country. And even legal aid in its current form means that there are people that fall through the gaps. But here in the territory, if you're not in custody, you do not get a legal aid lawyer.
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C
Wow.
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E
And that is incredibly concerning.
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C
Even Abby, if you're at risk of
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E
going to jail, even if you're at risk of going to jail, if you are not currently in custody, you do not get a legal aid lawyer. And the reason why that is the case is because the current government took away about $4 million of funding while
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B
saying they were increasing it. In fact, it diminished.
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E
They've explained it away as an increase in baseline funding, but they've completely scrapped all of the expensive case budget. They've scrapped the discretionary budget, all of which, as we all know, is where a lot of legal aid funding has to end up going. Trials are expensive. And so fundamentally, and we know this because the director of Legal Aid, Katherine Vermaard, sent a letter to Clant explaining the realities of the funding. And so we know that there was ultimately and fundamentally a decrease or a cut in funding, and as a result, they've had to cut services. And what that means is if you're a territorian, that Finds yourself in some kind of trouble with the law and you can't afford a lawyer, you are at it alone.
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B
And so what happens? What happens? I mean, you're talking about cases in the local court and cases in the Supreme Court as well.
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E
Yep, talking about both cases. I mean, there's complex avenues that we could talk about. We don't have time to talk about at all. There's Dietrich applications that could be made to try and I guess put your case on pause until a lawyer can be either allocated to you or until you can afford a lawyer. But all that means is massive delays in the justice system and of course, justice not being served.
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B
Judges and magistrates or local court judges and Supreme Court judges, are they being asked to stop cases unless and until a lawyer can be found for someone? And is that happening? Cases are just stopping.
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E
It's only very recently that there was a Court of Criminal Appeal decision which made it clear that gtric applications could be made in the local court. So we're starting to see those applications being made and we're certainly seeing justice on pause. We've seen it in the Supreme Court from the Chief justice himself, who made it very clear that a defendant was not able to simply represent himself in a serious indictable trial where he was likely, if found guilty, to go to prison for a long period of time.
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C
We should explain for our listeners the Dietrich principle, which is that the High Court said many, many years ago, I think over 1992 said that, you know, if you in a serious trial and you're not legally represented, there can be what's called a stay, an adjournment until you get a lawyer. And that's been a principle for a long, long time now in Australian law, leaving aside the human rights issues about the right people have to legal representation, this is really dumb financial management on the part of the Northern Territory government because delays is cost to the court. It means eventually what happens, as has happened in Tasmania, list of delays, delayed. Cases get so big you have to go and hire judges to sit to try and help clean up that list. But also it means more pressure on the prison system. So, you know, you might think politically, ah, it's smart. Why should we give lawyers, you know, these defence lawyers money? But it's fiscally irresponsible.
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B
Yes.
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C
I mean, like, you know, banging everybody up in prison and youth detention, it costs a bomb. And, you know, governments, governments seem to think that, you know, we've got to cut here and cut here and cut here. But what they're doing is just Kicking the can down the road.
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B
My fear is that the sort of tabloid pictures of more and more people going to jail and going to jail for longer and the problem not being solved, but the imprisonment becomes the solution. My fear is that in the current atmosphere in this country, that sort of stuff appeals to an increasingly large number of voters and is very popular. Regrettably, people aren't interested in what happens after the prison gate shuts. They just want to see someone going behind the gate.
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E
It is, and it's very concerning that that is the case. But I think what's important to talk about and to remember is, as Greg said, obviously the immense cost. I mean, you could put someone up in the Hilton here in Darwin in the dry season. It's about $400 a day that we're spending keeping people incarcerated. Obviously there's a huge amount of money that we're spending on it, but it's also just incredibly stupid policy. Our prisons are not designed to rehabilitate people. There are no programs that work that are in prisons. So this idea that we're just going to lock everyone up and somehow the problem's going to magically disappear, it's just completely preposterous. And as you say, Lex, yes, it may appeal to some people, but I actually think that territorians are smarter than the government thinks. Territorians understand that for the most part, if you put someone in jail for a short period of time and then you let them out, nothing has changed in that time. If anything, actually, the evidence shows that things get worse. They certainly don't get better. And so I think that is why I'm so concerned about the rhetoric and the lines that are being thrown out in relation to the government being proud of the increase in incarceration. Somehow that increase is being seen as a measure of success when really it should be seen for what it is, which is a measure of failure, government policy failing, which is leading to people falling off that cliff and landing in prison.
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C
Well, and then you get increased what we call recidivism rates that is coming back into the system because you've committed an offence within two years of release. And again, you're just piling on the expense. One other issue that I wanted to raise, and I just pulled out some data before the podcast, 4,167 per 100,000 adults is the indigenous incarceration rate in the Northern Territory for white. For Europeans, it's 225. I mean, that's just staggering. I mean, in your practice, for example, you did A lot of criminal law. How often would you see a white defendant?
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E
Incredibly rarely. I mean, when I was at legal aid, it was obviously a lot higher, given that NAJA exists. But all you have to do is do a prison visit, Greg, to understand the reality of prisons here in the
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B
territory or go to the court. I think in the time, the relatively short time I spent up there, I think I sentenced at most two non indigenous accused. All the rest were indigenous.
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C
Well, you go to the local court in Darwin, where I've been going the last couple of weeks, if you see a non indigenous face. My experience was, I mean, one, it's extremely rare and two, they may well be a witness. But one of the things I did want to say about this, of course, is that people say, oh, well, you know, indigenous people commit more crime. I mean, the real issue is dispossession and poverty, lack of opportunity. You know, we could keep going. And that's why you have overrepresentation in
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B
your justice system and it won't ever improve under the current regime. No prospect.
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E
That's right. And Lex, I'm curious to hear your experience as a judge in terms of the stories that you heard. But would I be right in assuming that most of the pleas that you'd see in the Supreme Court, you're hearing a huge amount about a person's life, you're hearing what they've gone through and their story. It's incredibly rare that you don't hear a devastating story of life and policy affecting someone in such a negative way.
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B
Well, I mean, it's the bugmy principle. Pretty much every day you just hear continuous stories of deprivation. And I just don't get a sense that there's any will to do anything about improving the overall circumstance. It just seems to me in the Northern Territory to be, at least at government level, to be accepted as a fact of life that we just have to put up with. Just the will in the people who could do something about it just isn't there at the moment.
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C
Well, not only that, I think under the current government, as Abby was pointing out, I think there's some pride taken, political pride taken, in the fact that they lock people up. In fact, the deputy chief minister up here is a guy called Jared Malley, who I think is a lawyer. His brother's a lawyer.
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B
His brother's a lawyer.
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C
Yeah, yeah, Peter and I know Peter, and we're not criticising Peter at all. But his brother said words to the effect of, if you get into trouble, we'll find you a bed and what he meant was he didn't mean homeless shelter, he meant prison. No, I mean, that's the attitude. And the attitude is also, let's build more prisons. I mean, it's a pity some of these ministers here don't go to the United States of all places. Where you're seeing some states, right wing states like Texas, close prisons, not because they've developed bleeding hearts or compassion, but because of the expense. It just doesn't work. And they're thinking, why are we spending all our budget on this when we could be spending it on preventative programs or better schooling, et cetera. So, you know, the penny is dropping, you know, amongst some of the. Right around the world. But not here.
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B
No. Now, Abby, I thought we'd conclude your segment in this podcast by giving you a chance to plug the Criminal Lawyers association of the Northern Territory, better known as clant. You've just held a very successful conference in Bali which celebrates, apart from anything else, 40 years of that conference. Tell us a bit about the work that Clant does and the things you're involved in.
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E
Thanks, Lex. Clant was founded in 1986, and as you've said, we just celebrated our huge 40th anniversary in Bali. We had 245 delegates from across the country. And it was an incredible opportunity for defence lawyers, prosecutors, judges, we had psychologists and experts all sitting around discussing some of the more serious issues that are plaguing the territory and of course, the country. Clant was created to be a voice in the criminal justice system for the most vulnerable and disadvantaged people here in the territory. And I'm really proud that Clant has continued to be that voice. We've had incredible people work their way through either being the president or being members. And we've got a long history of, of making sure that when laws like the ones that we've discussed on this podcast are passed, that the truth is being told in some way and that defendants victims of crime as well, that everybody has a voice and is heard in a way in which that is meaningful.
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B
Abi, thank you very much for being part of our podcast. It's been a great pleasure to have you and to have your insights. I must say, Greg, perhaps I won't speak for you because I'm a lot older than you, but as someone who's a lot older than everybody, it's great to see people of Abbey's talent and commitment involved in these issues. It's the thing that gives us hope that people like that will really make a difference. So, Abi, thank you again. For being part of our podcast.
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C
Just add to that the young lawyers at NAJA that I work with are all much younger than me. But I think it's fantastic to see that sort of commitment. I mean, it's, you know, you come out of law school and you're a young lawyer and you've got enough on your plate trying to establish your practice. But I think the law is political and I think, Abby, it's, you know, all strength to your hand because your work is critical, particularly in dark times. I think that's when it really counts.
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E
I think it's really important. And I think, Greg, one of the things that keeps all of the young lawyers as inspired as we are and as determined to make a difference in whatever way we can, as we, despite how difficult it can be, especially in the current climate, is the hope that we see when we see especially young people in the criminal justice system actually turn their lives around. You know, a lot of us go out to remote communities, we go out to Ward Air, we go out to Gumbalunya, and we see these beautiful kids, we hear their beautiful stories, and they might have had an incredibly difficult upbringing and they've seen all sorts of things that none of us could even imagine. And yes, they've gotten into trouble and yes, they've made some bad decisions, but over the one, two or three years that you spend with them, you see such positive changes. You know, whether they've gotten a job or whether they've taken up a sport, whether they've come into Darwin and realised that there are opportunities for them that they want to take on. There are so many beautiful stories of hope and positivity out there, and it's really easy to be all doom and gloom sometimes and talk about all the problems, but that there are committed lawyers and interpreters and psychologists and practitioners and social workers that are doing everything they can despite the current climate, to make sure that especially young people have every single opportunity to thrive. And that is something we can all hold onto.
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C
Yeah, that's a great way to end this. And it is inspiring. When you see the winds, it's not all about gloom and doom and people cycling in and out of prison. There are some great stories. So thank you, Abby.
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B
Thanks, Abby.
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E
Thanks so much.
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B
Well, Greg, there's a lot to talk about in the Northern Territory, and I think we ought to resolve now that we're going to keep talking about these issues as the podcast goes on and develops, because everybody in the country, not just in the Northern Territory, everybody in the country ought to be interested in this, and they ought to be interested in the deprivation that Indigenous people have to undergo through, in many cases, no fault at all of their own. And I just, I just, I must say, I find the tolerance of injustice to Indigenous people, the tolerance of it by people is. Is really repugnant. People just turn their backs and somehow or other something's gotta be done about this closing the gap. Whatever the, Whatever the measures are, we just. We're just letting it happen. And I think it's an appalling indictment on us.
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C
I mean, we saw one government intervene in the Northern Territory, I think for the wrong reasons. The Howard government back in 2007, the Albanese government could and should intervene because, just to explain, territories are more susceptible to Commonwealth governments intervening because they're not states. And, you know, it's so bad. My observations up here, but also talking with Abby and others, it's so bad up here that the Commonwealth ought to intervene. And, you know, you can't imagine that some of the reformist governments of the past, the Whitlam government, Malcolm Fraser, who had a great commitment to Aboriginal people, you can't imagine that they would have sat by. But unfortunately, we live in an age of political timidity.
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B
Oh, and in the Hanson era, where the sort of nonsense that comes out of her mouth about Indigenous people seems to be getting traction. I mean, it's just appalling.
- [32:47]
C
And people don't remember, this just started under Howard with this term mainstreaming. We're going to mainstream all these Aboriginal programs as though there was no disadvantage. But anyway. Well, that was great, Lex. I think, you know, one of the things we can do with this podcast is get voices from outside the axis, if you like, of Sydney, Melbourne and Canberra, because there are some fantastic voices around this country well worth hearing and listening to in the justice space at the coalface, like Abby, but also doing some fascinating research in a range of areas that you can expect. Our podcast will broadcast at various points as we move along on this journey.
- [33:32]
B
Ok, Greg.
- [33:32]
C
Thanks, Lex.
- [33:33]
B
See you next time. This episode was produced by bravecasting Media, edited by Michael Tankard. Original music by Justin Humphries from Phoenix Sound Studios. This podcast is recorded on the lands of the Wurundjeri people of the Kulin nation. We pay our respects to their elders, past, present and emerging. Thank you for listening. See you next week.
- [33:58]
G
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