Glimmers of TJ hope in Australia’s north?

Guest bloggers Jared Sharp and Amelia Noble write about glimmers of therapeutic hope in the Northern Territory’s mass incarceration catastrophe[1]…

The Northern Territory (Australia) is in the grips of an unparalled mass incarceration crisis. In September 2015, the NT imprisonment rate was 882 per 100,000 of the adult population.[2] This is four times the national average[3] and is virtually unmatched anywhere in the world.[4]  Aboriginal and Torres Strait Islander peoples bear the brunt of this, making up 30% of the NT’s population yet a staggering 84% of the adult prison population and 96% of youths in detention.[5]  And things are only getting worse. Between 2004-2014, the NT incarceration rate increased by 64%[6].

The crisis in the Northern Territory has not occurred by accident. Successive populist governments, in particular the Country Liberal Party, have relentlessly pursued a series of deliberate, vicious and targeted law and order policies over several decades.

The NT’s infamous 1990’s mandatory sentencing was particularly pernicious. Aboriginal people were targeted and jailed for things like stealing a towel, a carton of eggs, or $20.[7]  In some instances, the most tragic consequences followed.[8]

Despite some changes, the same brutal policy settings largely remain.  The NT leads the country in mandatory sentencing, punitive bail laws and other ‘tough on crime’ policies such as Alcohol Protection Orders and Paperless Arrests.[9]  If governments around the world needed proof that sending people to jail does not reduce crime, they need look no further than the NT, which has Australia’s highest offender rate (5,498 per 100,000) and the highest incarceration rate (859 per 100,000).[10]

The current government’s focus on mass incarceration has accompanied a ruthless suppression of therapeutic jurisprudence (TJ) approaches. Current Attorney-General, John Elferink, described TJ in these terms:

This concept of therapeutic jurisprudence steps away from the idea of punishment for a crime and of deterrent, and actually tries to embrace the individual and say: ‘you have to go and correct yourself and once you have corrected yourself, we will be nice to you’.

It is that failure of therapeutic jurisprudence which has seen the increases in crime that we have seen.[11]

The demise of TJ in the NT

The NT is now the only Australian jurisdiction without any TJ programs.  This was not always the case.  In 2010, the NT advertised in the position description for the Chief Magistrate of the Northern Territory that beyond the minimum requirements for the position, including significant legal experience, applicants must have:

…an understanding of the principles of restorative justice and therapeutic jurisprudence,and an aptitude for the application of those principles.[12]

At that time, the NT also had two emerging TJ court processes with enormous promise. Sadly, with a change of government and a rancorous politicization of these TJ courts, both are no more.

Community Courts

In 2005, Community Courts were established in the Darwin Magistrates Court. These were modelled on the Victorian Koori Court and had two key aims:

• to involve the community in the sentencing process, and
• to allow courts the opportunity to consider the needs of victims, the offender, and the broader community

In their short lifespan, Community Courts became an exciting new Indigenous Justice model with great potential, especially for remote Aboriginal court users.  In 2006, then Magistrate (and now Justice) Jenny Blokland profiled the emerging Nhulunbuy Community Court and spoke of how:

…in ‘remote areas such as North East Arnhem Land, engagement with the community can provide a structure allowing for rehabilitation. For example, some defendants have been managed through ‘no drinking’ orders via a number of appearances in the Community Court utilising family and outstations and redirecting the defendant to cultural activities.[13]

Her Honour’s illuminative paper,[14] presented at the Australian Institute of Judicial Administration’s Indigenous Courts Conference, documented some of the positive initial outcomes regarding reoffending rates, community understanding, community and family participation and satisfaction levels with the process.[15]

Despite its early successes and a favorable evaluation[16], the Community Court suffered from a lack of government support and funding.  There was only one Community Court Coordinator for the whole of the NT.  Consequently the model could only be implemented in a small number of communities in the Territory.

In December 2012, the incoming NT Government abolished Community Courts altogether. There have since been no attempts at similar or amended programs, despite the staggering overrepresentation of Aboriginal people within the NT justice system.

The SMART Court

The SMART (Substance Misuse Assessment and Referral for Treatment) Court commenced in July 2011 (under the previous Labor Government).  It was introduced to deal with the sentencing of defendants who had a history of serious substance misuse and incorporated the previous CREDIT program.

The SMART Court model built on national best-practice TJ courts.  It was designed for misuse of alcohol and illicit drugs, and was available to youths and adults for less serious and more serious crimes.

Unfortunately, within a few weeks of the SMART Court Bill being passed, the government bowed to populist concerns and excluded violent offences from the court’s jurisdiction. This prevented a significant number of Aboriginal defendants, perhaps those with the greatest need, from receiving treatment or rehabilitation.

After 18 months in operation, 146 participants, and 60 graduates (with 7 more expected), the SMART Court was abolished by the incoming Country Liberal Party Government in December 2012.  No formal evaluation was undertaken before the Government decided to dismantle the Court, leaving many to conclude that the decision was based not on the effectiveness or otherwise of the Court, but on ideology.

Some glimmers of therapeutic hope…

To say that the Northern Territory urgently needs a TJ revolution is an understatement of gargantuan proportions.  For Aboriginal people in the NT, two particular factors need consideration.

First, the issue of trauma must be addressed in a culturally-expert way. Many Aboriginal people experience transgenerational trauma resulting from forced removal, a loss of self-determination and identity, and diminished human capital available to support families.[17]  In 2010, Atkinson reported a statistically significant correlation between childhood trauma (including historical trauma) and incarceration for high-level crime in Aboriginal men.[18]  Given soaring incarceration rates in the Territory over the last 10 years, it is vital our justice system addresses the underlying causes of criminal activity.  This must involve addressing trans-generational trauma and providing wrap-around, culturally safe and culturally strengthening support services.

In this regard, the Aboriginal community-controlled medical and legal services for the Top End, the Danila Dilba Health Service and the North Australian Aboriginal Justice Agency (NAAJA), are working closely on several exciting projects. One of these is a pre-sentence diversionary program for Aboriginal defendants whose offending is linked to alcohol and drug issues. A defendant’s sentencing would be deferred for them to undertake individually tailored, holistic and trauma informed treatment.  This would then be considered by the sentencing magistrate.  This is set to be trialled in 2016 and could have exciting national implications.

Second, a radical shift is needed to provide procedural justice for Aboriginal people in the justice system. Too often, an Aboriginal defendant is the only Aboriginal person in a courtroom. Formal adversarial court processes, complicated legal language and limited cultural safety can mean that despite the best efforts of lawyers and judicial officers, courtroom proceedings are often indecipherable and marginalizing . Justice Muirhead’s chilling observation in 1981 that Aboriginal people may be physically present, but are in reality ‘a piece of ‘appropriate furniture’ in the room’[19] is just as true in 2016.

There is some cause for optimism for the future. Dedicated lawyers, magistrates and judges continue to fight the tide of colossal court lists to strive for individualized justice. There are also some signs of systemic change.  One terrific example is the significant progress being made towards establishing a Mental Health List at the Darwin Magistrates Court.

It is hoped that the establishment of a Mental Health List might bring renewed focus on the reinstatement of other court-based TJ processes, like the Community Court and the SMART Court.  The Community Court has been evaluated as an effective model and is urgently needed, especially for remote Aboriginal people.  Although the SMART Court only ran for 18 months and was never independently evaluated, it demonstrated very promising signs..

Similarly, there is pressing need for the introduction of restorative justice processes. Restorative justice has particular benefits for Aboriginal people.  Conferences occur in a less formalised but highly structured environment, enabling underlying relational issues between defendants, victims, family and the broader community to be addressed.  There have been recent gains in the NT in relation to pre-sentence conferences for young people.[20]  Restorative justice for both adults and young people is an area in need of significant investment.[21]

The NT stands as an international worst-practice example of ‘tough’ law and order policies.  Mass incarceration policies have not led to reductions in crime, and have caused untold damage to multiple generations of Aboriginal people.  Shamefully, the NT is the only Australian jurisdiction without any Aboriginal justice, restorative justice or TJ programs.  If there was ever time for investment in evidence-based programs that have been shown to work, that time is now.

Jared Sharp is the Manager of the Law & Justice Projects Section, NAAJA. Jared has practiced as a criminal lawyer in the Northern Territory and WA and has mainly worked in Aboriginal Legal Services since 2001. Jared is also a nationally accredited mediator. In 2013, Jared received a Churchill Fellowship to Canada, the United States and New Zealand to consider culturally strengthening approaches to reduce the adverse impacts of the justice system on Aboriginal people. The report can be accessed here.

Amelia Noble is a fourth year B Law/B Music student at the Australian National University. In 2015 Amelia was Highly Commended in the International Undergraduate Awards for a paper on the role of song in the endurance of Yolngu (East Arnhem) customs, laws and traditions. She contributed to this article while working as an intern at the North Australian Aboriginal Justice Agency (NAAJA) in Darwin.

Endnotes:

[1] This paper has been co-written by Jared Sharp and Amelia Noble based on a conference presentation by Jared Sharp at the 2015 Aotearoa Conference on Therapeutic Jurisprudence. The views expressed in this paper are their own.

[2] Australian Bureau of Statistics, 4512.0 Corrective Services Australia, September Quarter 2015, (3 December 2015).

[3] Australian Bureau of Statistics, 4512.0 Corrective Services Australia, September Quarter 2015, Table 3: Imprisonment Rates, (3 December 2015).

[4] See John Lawrence, ‘Lock Up Mania: NT Leads the World’, Land Rights News – Northern Edition January 2015, published on Crikey (25 January 2015):

[5] Australian Institute of Health and Welfare, Bulletin 131: Youth Detention Population in Australia (2015). (Percentage calculated based on information for the June 2014 quarter (most recent) contained in supplementary data tables).

[6] From 505.3 prisoners per 100,000 of the population in 2004 to 829.4 per 100,000 in 2014. See Australian Bureau of Statistics, 4517.0 Prisoners in Australia, 2014 (11 December 2014) (Table 18).

[7] See this link for examples.

[8] 15 year old, Johnno Johnson Wurramarrba was detained for a mandatory 28 day sentence for stealing textas, paint and liquid paper worth around $50. On 9 February 2000 he was found hanged in his cell by a bed sheet. See news link.

[9] See, for example Jonathon Hunyor, ‘Imprison Me NT: Paperless Arrests and the Rise of Executive Power in the NT’ (2015) Vol 8 (21) Indigenous Law Bulletin 3.

[10] Mirko Bagaric, ‘Australia: Destined to Become the Second Nation of Captives?’, conference presentation.

[11] John Elferink (shadow AG at the time), Alcohol Reform (Substance Misuse Assessment and Referral for Treatment Court) Bill (Serial 159)-second reading in continuation, 5 May 2011.

[12] See Arie Freiberg, ‘Psychiatry, psychology and non-adversarial justice’ [2010] UMonashLRS 1 at [70].

[13] See, for example, Jenny Blokland, ‘Northern Territory: Where Two Worlds Collide’ (2006) 31(2) Alternative Law Journal 95

[14] Jenny Blokland, ‘The Northern Territory Experience’ (2007) Paper presented at the 2007 Australian Institute of Judicial Administration Indigenous Courts Conference, Mildura Victoria.

[15] Her Honour’s paper noted that in relation to the 55 cases to 30/12/06 of which 38 were finalised,

• re-offending rates appear to be better than normal Magistrates Court (40% compared to 60%). Caution must be exercised as not enough time has elapsed (2 years since last separation) for many offenders.
• Concentration on objectives should focus on community understanding and involvement in the court that should in time strengthen the community and reduce offending.
• Cases include a high number of family violence (nearly 40%) – community considers that the Community Court is suitable for these cases as resolution of conflict in a mediated way is seen as a good outcome. Women partners as victims of violence do not want (generally) their male partner imprisoned – they simply want them to stop hurting them. Hence often AVOs are frequently ignored by women who seek out their partner.
• Satisfaction levels obtained by interview were high for both the process and outcomes in the Court.
• Community Court at Nhulunbuy (and now at Galiwin’ku) has not been costly to date

[16] Daniel Suggit, ‘Joining Forces – A Partnership approach to effective justice: community-driven social controls working side by side with the Magistracy of the Northern Territory. A Review of Community Courts’ (10 August 2012) .

[17] Silburn et al. 2006, cited in Closing the Gap Clearinghouse Issue Paper, ‘Effective Strategies to Strengthen the Mental Health and Wellbeing of Aboriginal and Torres Strati Islander People’ (November 2014), 27.

[18] Judy Atkinson et al., ‘Addressing Individual and Community Transgenerational Trauma’ in Nola Purdie, Pat Dudgeon and Roz Walker (eds.), Working Together: Aboriginal and Torres Strait Islander mental health and wellbeing principles and practice (Commonwealth of Australia, 2010) 293.

[19] Muirhead J in Rockman v Stevens (1981) 1 ABOR LawBull 6.

[20] Section 84 of the Youth Justice Act allows a court to adjourn sentencing proceedings for a youth to participate in a pre-sentence conference. The conference may involve the victim(s), community representatives, members of the youth’s family or any other person the Court considers appropriate. Pre-sentence youth conferences in the NT have been increasingly used in recent times, and have led to some very positive results. It is culturally strengthening and has proved to be a circuit-breaker for many young Aboriginal people caught up in a pattern of repeated offending.

[21] In her 2014 Churchill Fellowship report, Sandra Wendlandt recommended the NT introduce an adult diversion scheme that includes restorative justice. See this link to access a copy of Sandra Wendlandt’s Churchill Fellowship report.