I have previously expressed the view that the current Royal Commission into the Protection and Detention of Children in the Northern Territory is unlikely to discover any startling facts not already well known to anyone who bothers looking. Nor is it likely to produce any recommendations not already made (though largely not implemented) by previous inquiries e.g. reports by former CLP politician and lawyer Jodeen Carney (commissioned by the former Henderson ALP government), Michael Vita and former Children’s Commissioner Howard Bath.
Nevertheless, despite its huge cost (more than $50 million) there is a powerful argument that the Royal Commission is needed if nothing else to put a strong enough public spotlight on youth justice to ensure that the politicians can’t simply sweep it all under the carpet and keep ignoring it. The twin dangers of fiscal pressures (especially in the light of recent revelations about major loss of federal GST funding) and pandering to populist sentiment (which is very easy to whip up in favour of punitive “tough on crime” “law and order” approaches) mean that little is likely to change in a long term sense in the absence of strong countervailing pressure to adopt more rational, effective, evidence-based policies in future.
As the Senate Legal and Constitutional Affairs Committee’s Justice Reinvestment Report has observed:
‘Tough on crime’ policies have been pursued in most jurisdictions. …
In the Northern Territory, multiple governments have pushed for a more penalty driven justice system. The Central Australian Aboriginal Legal Aid Service (CAALAS) submitted that ‘successive Northern Territory Governments have emphasised increased policing and tougher sentences as a key policy platform’. This has continued despite evidence presented that these policies were increasing incarceration rates. It was further noted that a culture of incarceration is developing in the Northern Territory: imprisonment is not being used as a last resort; and bail is not granted to certain types of offenders who should be able to be sentenced to non-custodial options.
In fact it is easy to demonstrate by perusing just four graphs (reproduced and discussed below) that the current punitive law and order-based approach to youth justice embraced by both major Territory political parties is not only extremely expensive but largely ineffective and even counter-productive.
As you can see, the number of adult prisoners in correctional detention in the Territory over the 20 year period to 2014-15 has increased by more than 350%. Over the same period, the Territory’s total population increased by just over 40% from around 170,000 to a bit over 240,000.
Over the same time period, the number of youth detainees increased by an even more startling 380%, the great bulk of that increase occurring from 2005 onwards. Moreover, it appears to have been a deliberate outcome of the policies of the Martin/Henderson ALP government, an achievement of which they should not be proud. As the Senate committee report noted:
The Chief Magistrate of the Northern Territory provided the committee with evidence of incarceration rates as a result of the imposition of mandatory sentencing in the Northern Territory during the period 1997 to 2001. The Chief Magistrate noted that the imprisonment rate was 50 per cent higher during this period than following repeal of the laws. Non-custodial orders such as home-detention and community work were almost unused for property offences during the mandatory sentencing era.
In 2008, mandatory sentencing was introduced for first time assault offenders where the injury interferes with a person’s health and results in ‘serious harm’. Mandatory sentencing also exists for drink driving and drug driving offences and for breaches of Domestic Violence Orders. The Chief Magistrate noted that as acts intended to cause injury account for a significant number of matters before the Court in the Northern Territory, this could significantly affect imprisonment rates. In addition, in 2013, mandatory imprisonment periods were introduced for serious assaults and repeat offenders. Again, the Chief Magistrate stated that these changes are likely to result in significantly increased imprisonment rates particularly in regards to Aboriginal offenders.
As we can see from the graph below, the Territory’s adult imprisonment rate is more than 300% higher than the next highest imprisoning state (Western Australia) and approximately 500% higher than the national average.
Now it may well be that having an imprisonment rate vastly higher than anywhere else in Australia would be understandable and even justified if the Territory had crime rates that were vastly higher than the rest of Australia. That is certainly true in relation to homicide offences, but it isn’t true overall. As can be seen from the graph below, the Territory in 2015-16 had an offence rate of around 11,000 per 100,000 people compared with a national average rate of around 10,000. Our crime rate is very similar to that of Western Australia, and like WA it has been falling gradually over the last six or seven years.
That is at least up until the last three or four months, when there has been a very distinctive “spike” in crime rates in the Territory over the Christmas period. That is certainly a matter of legitimate concern, but it doesn’t justify adopting an even more punitive “lock them up and throw away the key” approach than the NT already has. A thoughtful public debate (which we manifestly don’t have at present) would be demanding that government and police carefully investigate what has caused the spike and what policies are needed to reverse it.
The only thing we achieve by thoughtlessly persisting with the Territory’s current bipartisan punitive law and order policies is to spend enormous amounts of scarce taxpayer dollars for little or no useful effect. We simply end up with a huge “revolving door” prison population in both adult prisons and youth detention facilities. Generally speaking, in the rest of Australia the majority of young offenders sentenced to juvenile detention do not re-offend or at least do not return to prison. Unfortunately, that isn’t true in the Northern Territory. The percentage of prisoners overall who return to prison within two years is the highest in Australia at around 52.4%. I understand the youth recidivism rate is even higher. The current punitive approach actually makes crime worse rather than better over the long term, especially for young offenders. As the Senate committee report noted:
A further issue with mandatory sentencing laws … was that they may actually increase the likelihood of reoffending as periods of incarceration diminish employment prospects, positive social links, and other protective factors that help prevent recidivism.
What policies should be adopted?
The policies necessary to improve this appalling situation are fairly obvious, and have been highlighted both in evidence given to the current royal commission and in multiple previous expert reports including the ones linked at the beginning of this article. They are:
- Fund early intervention programs to reduce the number of kids entering the juvenile justice system in the first place (deal with parenting issues etc);
- Implement appropriate community-based diversionary programs ASAP. They would probably involve:
- “wilderness camps” for young offenders from remote communities, where they would live in a structured environment with gradually increasing levels of self-discipline and responsibility and where they would learn suitable bush skills, land management, cattle mustering and the like as well as language and literacy skills that many of them simply don’t have as a result of failing to attend school;
- residential “group homes” for urban offenders, from which they would be required to attend local high schools or CDU VET programs during the day, or in some cases paid work along similar lines to the adult “Sentenced to a Job” program, and attend organised sporting and recreational activities after school/work. They would probably be required to wear monitoring bracelets to prevent them from associating with their usual youth gang associates during the diversionary program.
- Major refurbishment of Don Dale youth detention centre. There will always be a need for a custodial detention facility, because there will always be some young offenders who will not be suitable for non-custodial diversionary programs and who will need to be securely detained. But there are a lot less of them than the numbers currently detained, largely because there are simply no currently available alternatives;
- Major reform of selection, training & supervision of custodial staff. Employing thugs and bullies just produces a new generation of thugs and bullies.
What policies were actually adopted?
The Henderson ALP government commissioned the Carney report in late 2010 and adopted a few of its less expensive recommendations prior to being voted out of office in 2012. However it didn’t implement the more expensive ones, and indeed it went against the Carney recommendations by defunding and closing down one of the few existing youth diversionary programs. The new CLP government then defunded and closed down the only significant remaining diversionary program (Balunu), along with abandoning any commitment to implementing the remaining Carney recommendations.
Worse still, both the Berrimah adult prison and the nearby Don Dale youth detention facility had become grossly overcrowded as a result of years of bipartisan punitive policies. Instead of addressing the crisis in a constructive and rational manner, the Henderson government decided to spend hundreds of millions of dollars on building the new Holtze adult prison, but completely ignored strong expert recommendations that a new juvenile detention facility was also desperately needed to replace the Don Dale facility.
As I noted at the beginning of this article, we don’t need a royal commission at a horrendous cost of more than $50 million in order to make the above recommendations. They are not rocket science. Indeed they are not even controversial for anyone who bothers to examine the evidence. However, maybe we do actually need a royal commission, despite the cost, if only to ensure that governments of whatever political persuasion don’t get away with behaving as they always have in the past, merely paying lip service to the recommendations and then largely ignoring them as soon as the political circus moves on to the next populist issue of the day.