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Issue #1742      August 3, 2016

Children tortured in detention

Brutal system exposed

The image is now seared into the public consciousness. A boy in detention in the Northern Territory strapped into a chair, his head covered by a hood also tethered to the grim, purpose-built device. The distressing scene was one of many shown on the ABC TV’s Four Corners program, Australia’s Shame, (25-07-2016) which dealt with the issue of the brutalisation of Aboriginal children in NT prisons, the Don Dale Youth Detention Centre in this instance.

Part of the rally held at Town Hall Sydney on Saturday. (Photo: Tom Pearson)

The revelations have left the future of NT Chief Minister Adam Giles and his whole government hanging by a thread as calls go out for their immediate sacking. Prime Minister Malcolm Turnbull quickly assessed the level of public outrage and responded with the announcement of a Royal Commission, presumably to get to the bottom of the scandal and punish those responsible.

The quickly formulated move has not stemmed public anger. Over the weekend, large protests took place around the country at the shameful situation in the NT and the attempt to contain the fallout.

An open secret

There’s little doubt the terrifying regime in place at Don Dale would have continued unchanged if not for the Four Corners program. It is a troubling thought that it is left to the national broadcaster to lift the lid on this type of scandal and that, over the years, it has suffered swingeing cuts, harmful political board appointments and constant attack from government heavyweights in return.

It transpires that a government agency referred practices at the Don Dale centre to the NT Police in 2015. The claim that boys were encouraged to fight one another in return for a can of coke and a chocolate per week and to eat bird faeces are still “under investigation”.

Federal Indigenous Affairs Minister, NT Senator Nigel Scullion, said he could “recall vaguely” some media reporting about abuse in October last year but that it hadn’t, as he put it, “piqued my interest sufficiently.”

The NT government is defending itself hard against the boys depicted in the scenes in which they were gassed, stripped naked, struck, sworn at, and held in prolonged solitary confinement.

It dismisses claims that the treatment violates United Nations Conventions against Torture and insists all the methods used, including the restraining chair and hood, were legal.

Its initial response to the lawsuits brought by six detainees was to lodge counter-claims. These have been withdrawn, also a result of the massive public outrage, but Adam Giles, now acting in the Corrections portfolio, insists the government will defend itself in court and resist any financial settlement.

Past failures

The PM and sections of the media have feigned shock at what goes on behind closed doors in prisons and police watch houses across the country. Australian authorities have an attitude problem, a privileged class and race bias when it comes to questions of crime and punishment.

Many still hold the medieval point of view that prisoners are detained not as punishment but for punishment. If a prisoner’s human rights are violated, and even outrageously violated, the response is “well, they shouldn’t have broken the law and got themselves into that situation.”

The attitude is many times worse when it comes to Aboriginal prisoners. Institutional racism against the first Australians has led to dispossession, marginalisation and impoverishment. The young victims end up in the hands of the “justice system”.

The failure of this system has been a national embarrassment for a very long time. It has been examined in Royal Commissions including the one into Aboriginal Deaths in Custody, which reported in 1991. Twenty-five years later, incarceration rates for Indigenous Australians are higher than at the time of the report. Australia-wide the rate is 15 times higher than for non-Indigenous people. In WA, the rate is closer to 20 times. There have been over 340 Aboriginal deaths in custody since the Royal Commission.

Only a small proportion of the Royal Commission’s 339 recommendations were implemented. Among those that were endorsed by every state and territory was number 161 that said that police and prison officials should seek medical attention immediately if doubt arises as to a detainee’s condition. This recommendation became law but it has been ignored on many occasions with deadly consequences.

The public’s scepticism about the proposed Royal Commission is perfectly understandable. The insistence that it be limited to conditions in the Northern Territory flies in the face of the universally acknowledged, nation-wide crisis surrounding Aboriginal men and women in detention.

The terms of reference are too restricted. The choice of former NT Chief Justice Brian Ross Martin to preside over the commission soon came home to roost. It left many Aboriginal leaders incensed. Justice Martin has now resigned stating, “Notwithstanding the nature of the commentary, it has become apparent that, rightly or wrongly, in this role I would not have the full confidence of sections of the Indigenous community which has a vital interest in this inquiry,” he told media in Canberra.

As the Guardian went to press Aboriginal Social Justice Commissioner Mick Gooda and former Queensland Supreme Court justice Margaret White were appointed to replace Martin.

Needed: more than a Royal Commission

There must be a thorough investigation into the incidents and the administrative culture at the Don Dale centre and into the whole juvenile justice and child protection system in the Northern Territory. But even if the Royal Commission were to have two additional, Aboriginal co-commissioners, as called for by newly-elected ALP Senator Pat Dodson, and even if its scope were extended to the whole of Australia, deep and lasting change would not be likely outcomes.

Recommendation 339 from the 1991 Royal Commission into Aboriginal Deaths in Custody was to initiate a formal process of reconciliation between Aboriginal people and the wider community. That led to the establishment of the Council for Aboriginal Reconciliation and a number of official and community-driven initiatives. In spite of this, as indicated above, the figures on incarceration and detention are worsening.

The 1991 Royal Commission into Aboriginal Deaths in Custody called on governments to legislate for the utilisation of imprisonment as a last resort. In line with this, it recommended community orders, personal development courses which might provide the offender with skills, knowledge, interests, treatment or counselling likely to reduce the risk of re-offending. (Recs 92, 94)

In the case of discrete or remote communities, “sentencing authorities consult with Aboriginal communities and organisations as to the general range of sentences which the community considers appropriate for offences committed within the communities by members of those communities …” (Rec 124)

Importantly, it called on governments to ensure that:

a. Police Services, Corrective Services, and authorities in charge of juvenile centres recognise that they owe a legal duty of care to persons in their custody;

b. That the standing instructions to the officers of these authorities specify that each officer involved in the arrest, incarceration or supervision of a person in custody has a legal duty of care to that person, and may be held legally responsible for the death or injury of the person caused or contributed to by a breach of that duty; and

c. That these authorities ensure that such officers are aware of their responsibilities and trained appropriately to meet them, both on recruitment and during their service.” (Rec 122)

These and many other critical recommendations have not been implemented.

The political climate has deteriorated with the economic conditions, and social problems have been met with “solutions” such as mandatory detention and “three strikes and you’re in”.

Aboriginal communities have been closed or threatened with closure. Aboriginal services have been de-funded and “mainstreamed”. The Intervention in the NT has done untold damage to communities.

Despite the current, momentary hand-wringing, intolerance of all sorts is being fuelled in the corridors of power. Even the proposed referendum on the “recognition” of the prior occupation of Australia carries with it the danger of a blow to any hope of genuine land rights.

“Abuse is not the inevitable policy of our justice system, it is an indictment on our nation. It is a shameful indictment on our nation as a whole,” opposition leader Bill Shorten told the media while attending the Garma festival in north-east Arnhem Land over the weekend. Unfortunately, abuse is the inevitable result of the social and economic system derived from colonialism – the capitalist system of exploitation and all its attendant ills of division, subjugation and violence.

The implementation of limited changes flowing from a thorough-going investigation into the questions raised during the Four Corners program will have to be fought for and watched over by progressive Australians.

Lasting change around the just demands of the Aboriginal and Torres Strait Islander people is bound up with the struggle for a government of a new and radically different type in Australia.

Next article – Editorial – The struggle against racism and oppression

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