he Northern Territory government released its long overdue draft Aboriginal justice agreement (AJA) this month.
With the highest incarceration rates in the country (almost 1,000 prisoners per 100,000 people) and the highest proportion of Aboriginal prisoners in the country (84% of the overall prison population), the Northern Territory AJA is urgently needed to redress this discriminatory system.
Over the past two years the NT Aboriginal Justice Unit conducted more than 120 consultations, including 80 in remote and regional communities, homelands and outstations, and with Aboriginal organisations. A major finding from these consultations was that Aboriginal people experience “unconscious bias, discrimination, racism and unfair treatment” in the NT justice system.
Racism was regarded by Aboriginal communities “as an everyday part of life”. For instance, one Aboriginal person told the consultation:
It’s hard to have a safe community when police are invisible, uncooperateive or they fail to have a relationship with us.
The consultation document found that among Aboriginal people in the NT “there is a strikingly low level of empathy towards Aboriginal defendants, prisoners and clients by some professionals working in the justice system”.
It outlined problems of frequent racist and derogatory comments by law enforcers about Aboriginal people; discrimination by police and correctional services; failure to provide an interpreter; failure to investigate matters affecting Aboriginal people; failure to provide culturally appropriate programs and mistreatment in prisons.
Given that imprisonment and victimisation undermine Indigenous wellbeing, the AJA can be a vehicle for redressing these issues and promoting self-determination.
However, delivering on its promises will not be without major challenges.
Aboriginal self-determination and leadership has been devastated over the past decade. Since the federal government policy of the Northern Territory intervention and related arrangements with the NT government, Aboriginal people have been removed from their homelands, had their democratically elected community councils abolished, been subject to exceptional policing powers and had their welfare income controlled.
There has also been a withering away of Aboriginal land rights and the issuing of unprecedented mining and fracking exploration licences. These are major threats to Aboriginal culture and law. The Intervention required the suspension of the Racial Discrimination Act due to the overtly racist nature of the laws, which continues to sit uneasily for Aboriginal communities.
The aim to reduce imprisonment does not gel with the law and order stance of the NT Government. Policies such as mandatory sentencing, paperless arrests and diminished rights to bail remain intact. All these policies have discriminatory impacts of Aboriginal people and fly in the face of the AJA objective.
These populist policies, along with increased police powers since the NT intervention, have contributed to the rapid increase in NT incarceration since 2007. Stemming the punitive tide in the NT is not going to be light work given the amount of ammunition successive NT governments have committed to its swell.
Successive inquiries have proven there is a lack of accountability for the mistreatment of Aboriginal people by police and prison guards.
The royal commission into the protection and detention of children in the NT heard shocking accounts of torture inflicted on young people in NT detention centres. Despite its damning findings, the royal commission did not result in any disciplinary action or prosecutions against officers, and left many Aboriginal young people regretting their involvement in the process.
Similarly, a number of recent inquiries into Aboriginal deaths in police custody that found gross neglect have not led to prosecutions or disciplinary action. This begs the question of how can justice flow from the AJA when Aboriginal lives are treated with callous indifference.
This lack of accountability also features in the remarks made on the NT bench. Judge Greg Borchers on repeated occasions has been criticised for making inappropriate comments about Indigenous offenders, their families and communities, criticising their “laissez-faire parenting”, the abandonment of their children, and their failure to understand the “first-world economy” beyond government handouts.
Yet the judge remains on the bench and responsible for deciding Aboriginal people’s bail applications, guilt or innocence and sentence.
The AJA must realise its potential if NT Aboriginal communities are to be unshackled from the discriminatory legacy of the criminal justice system.
However, this will require it to be the governing document from which all other decision-making in the criminal justice system flows. Otherwise it will simply serve as an appendix to a paternalistic law and order tome that scripts Northern Territory policy towards Aboriginal people.