The Northern Territory provides a broken justice system for Indigenous children … Under-funded, under-skilled and a failure of political will … Hannah Wootton looks at evidence given to the NT royal commission on youth detention
EVIDENCE before the NT royal commission into children in detention shows that the territory is an institutional backwater without the resources or political will to effectively address the crisis of youth incarceration.
Figures from 2015 show that 97 percent of youth detainees in the territory were Indigenous. In fact, Indigenous children in the NT are among the most at-risk of imprisonment in Australia.
Despite the scale of the problem, an adequate response from territory governments and authorities has been wanting.
Justice Hilary Hannam, now a Family Court judge, provided valuable insight into the difficulties she faced as the former chief magistrate of the territory when she gave evidence in Darwin last month.
To start, there has been no dedicated children’s court with specialist magistrates. Hannam laments that children’s courts exist in “virtually all other jurisdictions,” yet not where children are arguably most at risk.
For years children appeared in the Youth Justice Court presided over by magistrates, without specialist expertise, on roster from the local court. It was only after Hannam’s appointment that specific magistrates were appointed to hear children’s cases in Darwin and Alice Springs, “but not elsewhere because there was no capacity to do it elsewhere”.
The government has received, and not responded to, recommendations to establish a separate jurisdiction, but nothing happened. This reflects a common concern raised throughout the commission hearings that many recommendations from numerous reports on child protection and justice in the NT are never adequately acted upon.
Judge Peter Johnstone, president of the NSW Children’s Court, also gave evidence and told the commission that young people “absolutely require a specialist stand-alone discrete jurisdiction”.
He said that having a children-specific court in NSW enables judges, prosecutors and defence lawyers to collaborate to try and reach the best outcome for the child.
The fact that the Youth Justice Court was not, in Hannam’s experience, a separate structure meant children in Darwin were brought into court through public areas in handcuffs.
“There was a lack of expertise to do with youth across the system … It was [an] extremely fragmented non-system.”
The lack of a coordinated youth justice framework had unfortunate consequences. For instance, Hannam said that one day she was told:
” ‘We don’t have urine analysis in Yirrkala any more’, and so – you know, who do you go to talk to? So I talked to the Department of Justice and they say, ‘Well, it’s not our responsibility, it’s Health’s’. So I speak to the Department of Health and they said, ‘Well, we don’t have actually something within our budget to do urine analysis for Justice, in fact, we didn’t know that we were doing it for you’.”
The co-ordination of school attendances was also fragmented. The former chief magistrate said that on one occasion no one had noticed that a child of 11 years old had not attended school for four years.
When Hannam tried to get departments to collaborate they, “generally … had no idea why I was speaking to them”. For example, she attempted to get the education, corrections and justice systems to work together to improve school attendance, as this had a direct effect on decreasing youth offending.
“But there didn’t seem to be any recognition [from the departments] … that it was all interrelated.”
There appears to be more coordination on justice issues in other jurisdictions. In NSW, for instance, the Department of Health has a division called Justice Health, that is specifically focused on the courts. There is also better collaboration between Family and Community Services and Justice. The Children’s Court has responsibility for care, crime and the education of the court’s judicial officers.
Judge Johnstone told the royal commission that interactions between the court and government agencies is important.
“As you’re aware, there’s a significant level of crossover between children who have been involved in the care and protection system and those who commit crimes. So we have what we call the crossover kids, and there is a lot of literature about that particularly from Dr Judy Cashmore, and there’s a 40 percent correlation between children who have come into contact with the care and protection system and who commit crimes.”
Furthermore, there are no therapeutic courts in the territory. Throughout Australia, problem-solving courts that utilise therapeutic justice have proved successful. Yet, the NT “smart court” that Hannam established to deal with offenders with drug or alcohol problems was shut down without consultation. Hannam understood that its closure was related to an election promise.
“I was never ever asked. Not that they have to do that, they can do what they want to … I was recruited to come up here and appointed because of my experience in that area, and these are well-studied courts. There’s a body of research in Australia that goes back at least 20 years and in the US it goes further back, and they work.
They reduce recidivism, they save – in the United States, they’re actually being increased because they make good fiscal sense. It’s much cheaper to rehabilitate people than to stick them in jail. The effects to the health system, the effects to the child protection system, there’s very clear evidence that they work. But, apparently they didn’t work in the Northern Territory.”
The territory’s Youth Justice Act is also not up to the task. Justice Hannam said it’s quite a good Act, but “if you don’t resource things, so they actually exist in reality, then the Act is nothing more than a statement of good intentions”.
There were no rehabilitative youth programs available, only imaginary ones. The Act provides for pre-sentencing conferences, but nothing happened because there was no funding.
Similarly where a magistrate had concerns about the well-being of a child they could order a report from Territory Families. The Act recognised the nexus between welfare and offending, “but the trouble is the Department of Children and Families, I don’t think, understood what their role was in this regard”.
Like the Youth Justice Act, the Care and Protection of Children Act was similarly ineffective. The former chief magistrate gave a harrowing example:
“So we had this little girl who had been the subject of 10 notifications and on each of those the department said, ‘No, it doesn’t reach the threshold for action’. So one of the notifications that did not meet the threshold was when this child was almost five, she had been seen with a large head injury on the first day that she had presented to school, and that was some months after the school year [commenced], and she was unclean and she smelt like faeces.
Now, that wasn’t seen as meeting the threshold for harm. So a few weeks later, it was decided that she was being neglected because there was a failure to provide food, clothing, shelter and medical neglect, but no action was taken.
A couple of months later she was indecently assaulted … and that was not pursued by the department because they felt there was insufficient evidence for the suspect to be charged.”
There are also problems associated with young offenders and their understanding of court proceedings and command of English.
In particular, it leads to misunderstanding about bail conditions. Hannam found that people rarely understood the requirements of bail, viewing it as a means to get out of custody rather than a promise to appear in court.
Bail is a crucial way to keep young people out of the custodial system, otherwise they’re on remand and facing a cycle of criminality. Professor Eileen Baldry has given evidence to this effect before the commission.
In NSW, the Children’s Court texts defendants their bail conditions to improve their understanding of them. The Queensland conditional bail program is trying to limit the number of young people placed on remand.
Hannam thinks that having too many bail conditions is a problem. “The more conditions you have, the more potential to breach them.”
Hannam also said community courts in the territory were also meant to be expanded, but they weren’t. The budget didn’t cover training people in the communities, it didn’t cover legal aid, the police, the DPP. “Basically, there wasn’t enough money.”
The evidence before the royal commission suggests the youth justice system in the territory has been broken for many years – under resourced, under skilled and no political will to step in and do something to mitigate the damage.