Australia
Go to Jail
44’
May 2000
2:52:
LIZ JACKSON: Up in the Northern Territory, they’ve got a message for southern politicians.
DENIS BURKE, NORTHERN TERRITORY CHIEF MINISTER: We are not dumb. We are not stupid. We can think for ourselves. We can make our own minds up. We know what mandatory sentencing is all about. We make the decisions in the Northern Territory. Just stay out.
3:08:
BRENDAN NELSON, COALITION BACKBENCHER: Issues of great moral importance and value are very hard to define. But you know them when you see them. This is one of them.
3:23:
LIZ JACKSON: Five weeks ago, the body of a 15-year-old boy was returned home to Groote Eylandt. He had hanged himself in the juvenile detention centre in Darwin. For a moment, it appeared that his death in custody might force an end to the mandatory detention of children under Northern Territory law. But to the relief of the Territory Government, it now appears that moment has passed. Do you believe if John Howard had allowed the Coalition backbenchers a conscience vote, that you would have lost your laws?
3:56:
DENIS BURKE: Yes. Absolutely.
4:06:
LIZ JACKSON: Tonight on Four Corners, NT law—“no ifs and no buts—go to jail.”
Once a month, a small plane leaves Darwin with a magistrate on board, taking the whitefellas’ law to a bush court in a remote Aboriginal community.
4:40:
ALISTAIR MACGREGOR, NT MAGISTRATE: The whitefella law is—It’s a real mystery to most Australians, I think, of my age. It was the one thing we were taught absolutely nothing about at school. And it’s a complete mystery to a lot of Aboriginal people.
4:55:
HAZEL LALARA, ABORIGINAL WOMAN: Who understands the new law? Us Aboriginal people don’t understand that new law, especially young people who are not educated. They don’t know that new law. They don’t understand it.
5:14:
LIZ JACKSON: The mandatory sentencing laws came into effect three years ago. It’s not disputed that over 70 per cent of people now caught in their net come from small remote Aboriginal communities. Groote Eylandt is a two-hour flight east from Darwin in the Gulf of Carpentaria. This is Aboriginal land but part of it is leased to the South African-owned mining company GEMCO and this is one of the world’s richest manganese mines.
5:51:
Around 900 Aboriginal people live in the island’s two communities. Around 1,000 mostly white people live in the mining town of Alyangula. The Aboriginal communities and Alyangula are like two separate worlds.
6:10:
GRAHAM CARR, FORMER DIRECTOR, MIWATJ ABORIGINAL LEGAL SERVICE: There’s an obvious ‘have and have not’ situation on the island. There’s a small community where -- ..Alyangula, where the people who work in the mine live and it’s got manicured lawns and there’s a golf club, etc. And outside of that—you know, 15, 20-minute drive from that—is the community of Angurugu which couldn’t be more different. You know, visibly it’s a very poor community.
6:50:
ALISTAIR MACGREGOR: We still have a situation where many of the lads are not being fed at home. They have families that are completely dysfunctional. The place revolves around alcohol. And most of the offences are not as they are in the northern suburbs, are not on people’s homes—they’re on the local store and places like that, the school, where they can get food. And if they can get alcohol as well, so much the better.
7:25:
LIZ JACKSON: The court house is in Alyangula. It’s a pretty typical court day. There are 39 cases on the court list. All the defendants bar one are Aboriginal. And most will involve mandatory sentencing. Selwyn Hausman is the director of the Miwatj Aboriginal Legal Service. He’s advising two young trainee health workers charged with stealing a $2 block of chocolate from a police station. He’s reading from the charge sheet.
8:03
SELWYN HAUSMAN, DIRECTOR, MIWATJ ABORIGINAL LEGAL SERVICE: It says a police officer looked out of the window of the police station to watch the offender and co-offender leave and saw the co-offender, that’s you, with half a block of chocolate in his hands.
LIZ JACKSON: Unless they can prove exceptional circumstances, these young men are facing a mandatory 14 days in jail for half a block of chocolate each. It’s their first-strike offence.
8:27:
SELWYN HAUSMAN: So you didn’t take it?
ABORIGINAL BOY: Not me.
SELWYN HAUSMAN: Well somebody took it, or you’ve got it from somewhere else of you’ve picked it up off the ground. Nobody saw you take it, they saw you with the chocolate. Therefore, there could be another explanation, you could’ve picked it up off the ground.
8:42:
LIZ JACKSON: Selwyn reckons that about two-thirds of his clients who are sent to jail would go there anyway, with or without mandatory sentencing. It’s the other third that bother him.
SELWYN HAUSMAN: I feel rather helpless on the trivial matters. I sometimes ask myself why I am in the court. Am I there for window dressing, or to facilitate the processing of people through the system? I sometimes feel ashamed that I’m even participating in it. OK, we’re going into court. But of course, I rationalise that somebody has to be there to represent the client, to assist the court wherever possible to ensure that at least the minimum period of imprisonment is given.
9:31:
LIZ JACKSON: At the last moment, the police decide to drop the chocolate charges. Maybe they also feel prison’s a bit steep. Maybe it’s the glare of public attention on the way the law is working. Either way, it illustrates a trend that magistrates dislike, that the police are now effectively deciding who goes to jail. Alistair MacGregor is the only Territory magistrate willing to tell us how the new laws are working. Does it concern you at all that the discretion about how to deal with a case is now moving from magistrates like yourself to prosecutors like the police?
10:08:
ALISTAIR MACGREGOR: Yes, it is, it is.
LIZ JACKSON: How serious a concern is that for you?
ALISTAIR MACGREGOR: Well, it’s not public. And the more public we have the courts—We think the more public they are, the better—the greater the public confidence.
LIZ JACKSON: So they’re not accountable? Is that your concern—that those decisions aren’t public?
ALISTAIR MACGREGOR: Well, they’re not really accountable, are they?
10:33:
NT POLICE OFFICER: Do you reckon these young fellas are starting to think—
LIZ JACKSON: The Groote Eylandt police have it easy when it comes to solving crime, even when the theft is not from the police station itself. Part of the reason that mandatory sentencing hits these small remote communities so hard is that while the clear-up rate for burglary in Darwin is around 15 per cent, everyone here gets caught.
10:58:
SENIOR SGT. BOB THORNINGS, GROOTE EYLANDT POLICE: Being a small community, everybody knows everybody else’s business and it’s not uncommon for one person to dob in the next person and so the chain goes. And it just escalates from there.
LIZ JACKSON: But it is much higher—the clear-up rate than Darwin?
SENIOR SGT. BOB THORNINGS: Oh, yes.
LIZ JACKSON: What would be a rough comparison?
SENIOR SGT. BOB THORNINGS: 95 per cent.
LIZ JACKSON: Compared to what?
SENIOR SGT. BOB THORNINGS: Anywhere in Australia.
11:25:
LIZ JACKSON: As usual, there are only a few cases today where juveniles are involved. One is a 16-year-old boy charged with breaking seven light bulbs at the airport. If the case is proved, he’s off to detention for 28 days. It’s now two months since the 15-year-old boy who died in custody was sentenced here. The lawyer who originally interviewed him was Graham Carr.
12:00:
GRAHAM CARR: I remember him being physically small—a little kid, shy, giggly, difficult to get instructions from, difficult to talk to. Shy, giggled a lot, black face, flashing white teeth, lovely smile—that’s what I can recall. When I heard the name, I thought, “Yes, I know that kid.”
12:30:
LIZ JACKSON: The boy’s mother died when he was a baby and three years ago his father was struck and killed by a car in Darwin. Hazel Lalara says the boy was a grandson to her in the Aboriginal way. Hazel came to court with him on the day he was dealt with for his third-strike property offence.
12:50:
HAZEL LALARA: I was there to support him, to get a community work or a fine, and I was happy to pay for the fine. But I was told that he couldn’t, uh — He couldn’t get either of them because of the new law.
LIZ JACKSON: That he’d have to go to jail?
HAZEL LALARA: He had to go to jail.
13:20:
LIZ JACKSON: The mandatory sentencing laws cover property offences, like theft, break and enter and receiving stolen goods. In the case of a juvenile who’s a first offender, there’s no fixed penalty. For the second strike, it’s jail for 28 days, unless instead they’re put on a so-called diversionary program. No child from Groote Eylandt has ever been diverted from jail because no such programs have operated here. For third-strike offenders, there’s no ifs and buts. However trivial the offence may be, it’s off to detention centre for 28 days. The young boy’s lawyer on the day he went to court was Selwyn Hausman. The magistrate was Mr Greg Cavanagh. The hearing took all of 15 minutes. The charges were read and the police gave details of two separate events.
14:15:
On Saturday 27 November, the defendant and a friend entered the Angurugu offices through the toilet. The defendant went looking for the keys to the safe. He took a number of pens, textas and liquid paper. When asked why, the defendant replied, “For writing names. "On Sunday, 5 December, the defendant and his friends entered the Angurugu primary school building and removed a tin of paint and a plastic container of gear oil. These facts were agreed by the boy and his lawyer but the question of whether these are trivial matters have now become the centre of a political debate about law and order and punishment.
13:00:
DENIS BURKE: You give an example of one of those instances where a person has gone to jail and we can discuss whether it’s trivial or not.
LIZ JACKSON: Well, we’re talking about a case where he broke into a community centre, and he broke into a school, and he took textas.
DENIS BURKE: He took what was available.
LIZ JACKSON: He took textas.
DENIS BURKE: He took what was available.
LIZ JACKSON: And stationery.
DENIS BURKE: Are you going to suggest if there was $1,000 there, he’d have left it?
LIZ JACKSON: Well, he certainly didn’t take it. I mean we’ve got to deal with what actually happened.
DENIS BURKE: Yes, but—
LIZ JACKSON: He took textas and he took stationery and he broke into a school and he took paint. Now, you may describe that as not trivial but a lot of people would describe that as trivial.
13:35:
DENIS BURKE: Well, what I would say to those same people is—is a person walking around your house of a night, is that trivial?
LIZ JACKSON: But it wasn’t a house, it wasn’t a dwelling. We’re talking about somebody in a school after hours, in a community centre that is closed. It’s not someone’s dwelling.
DENIS BURKE: Well, it’s the same thing. It’s a break and enter of a night. You know, it’s trespass of a night.
15:59:
LIZ JACKSON: The young boy spoke only three words during the entire hearing—“Guilty,” “Guilty,” and “Guilty.” His lawyer spoke briefly in mitigation. “I think one of the problems with young people in communities is that there’s nothing available for them and they find themselves at loose ends and do stupid things. Which is of course no excuse before Your Worship, but they’re relatively minor things. They don’t involve cars.” The magistrate interrupted. “He’s got to go to detention centre for 28 days. I’ve got no option. He was there last year, he gets out, and within a few days he’s breaking into school and community offices.”
16:41:
The magistrate then addressed the boy. “You’ve got to stop doing this kind of thing, otherwise you’ll end up going to jail for a long time. Yes, take him away—detention centre for 28 days.”The magistrate did say, on sending him into detention, “I have no option but to sentence you, under the laws as they stand, to 28 days in detention.” What do you think he meant by saying that?
DENIS BURKE: Well, from time to time, magistrates speak out from the bench. You could interpret that as a lack of support from that magistrate, a lack of discretion, a lack of options in his opinion. My answer to that is that, “OK, yeah, but too bad.”
17:25:
ALISTAIR MACGREGOR: We’ve been taught that you impose the most merciful sentence you can consistent with the justice of the case. And that means you’re always trying to keep things down as low as possible.
LIZ JACKSON: But do you think people are fed up with mercy?
ALISTAIR MACGREGOR: Oh, look, it’s no good being weakly merciful and it’s not our job to be weakly merciful. That’s what this is about. We’re obviously seen to be weakly merciful. Mercy has its place. Mercy—Without mercy, I think the community we have will become a totally different place.And not one that I would want to live in.
18:04:
LIZ JACKSON: As the boy was taken to the police cells next door to the court, he called out to Selwyn Hausman, saying he didn’t want to go to jail—could Selwyn get him a community service order? Selwyn asked, did he understand why he was going to jail? The boy replied, “Yes, because I’m black.”
SELWYN HAUSMAN: That comment is not a comment which is uncommon. I hear it on a number of occasions in relation to matters before the court. In fact, in relation to general matters in life, where Aboriginal people find themself in a situation.
18:38:
HAZEL LALARA: I didn’t actually go and see him before I left because I was a bit upset. But his, um—uncles, my two sons, went to see him before he left and, um—gave him a can of—a bottle of Coke and, ah some cigarettes. That’s it.
LIZ JACKSON: Some cigarettes?
HAZEL LALARA: Mmm. He smokes. He used to smoke.
19:08:
LIZ JACKSON: The last time the young boy was flown to Darwin, it was also to go to detention. His second-strike offence was for stealing food, cigarettes and a large amount of cash from the local store. On that occasion and this time as well, it was his own community who reported the crime and it’s creating tensions.
19:32:
SELWYN HAUSMAN: They’re caught between the devil and the deep blue sea. They either report it, in which case they’re faced with a problem that there’s mandatory sentencing involved in a trivial matter. They’re also faced with the problem that if they do report it that the families of the alleged offender then become irate. It creates family conflicts. And on the other hand if they don’t report it, then the offending is undealt with and there are problems which flow from that.
20:07:
LIZ JACKSON: Is it causing tension between the people who report the crimes to the police and the people who get reported on?
HAZEL LALARA: Mmm. That’s the big matter that’s happened, because, um—you know, like, ah—When they report it to the police—when they report it to the police, it sort of, um—make—make us really upset doing it.
20:36:
LIZ JACKSON: On the day the boy was driven into the Don Dale Detention Centre in the outer suburbs of Darwin, there were 18 juveniles held in detention. Fifteen of the 18 boys were Aboriginal. All around Australia, Aboriginal children are hugely over-represented in juvenile detention centres. But on this measure, the Northern Territory is in fact better than some of the southern States. The numbers of children in detention here had been falling since the early 1990s. But after the new laws came into effect, the numbers rose significantly. The young boy from Groote Eylandt was one of five Aborigines from a remote community.
21:28:
STEVE PARKER, DIRECTOR, DON DALE DETENTION CENTRE: Well, he was—He wasn’t that, well—He was just a community boy that come in.
LIZ JACKSON: Particularly naughty?
STEVE PARKER: No.
A couple was—He’d get a bit grumpy a couple of times and tell you where to go. But that’s alright—“Listen, sonny, you can’t talk to me like that.” And he was dealt with but in a very gentle manner. I mean you have to—well, you have to sort of take that sort of thing. This is the sort of place it is.
21:54:
LIZ JACKSON: On the 23rd day of his 28-day detention, the boy was shut in his room for being naughty.
STEVE PARKER: They had had their dinner, they’d had their drink of cordial, they came out here to, you know, sort of recreation time with a few more chores to do. He was asked to do a few chores, he didn’t want to and he got a bit heated under the collar, but it wasn’t serious. He got the soft option, “Go to your room,” told that we’ll see you in a couple of minutes when you cool down. And when we did see him, in a very short time, yes, he wasn’t well.
22:34:
LIZ JACKSON: The boy had hanged himself from the end of his bed with a sheet. He was rushed to hospital and died several hours later. No-one wants to feel responsible for his sad cry for help.
22:53:
STEVE PARKER: I had breakfast with him that morning and he seemed—a normal average kid. He didn’t stand out from anybody else. But he wasn’t happy about going home for whatever reason and I can’t speculate on that—that’ll be up to the coroner—but, yeah, he obviously didn’t want to go home.
LIZ JACKSON: So you think that’s -- ?
STEVE PARKER: Well, that’s only my opinion.
23:08:
HAZEL LALARA: When people say that, it makes me really upset and angry same time, you know? It makes me angry that, uh—they say these things about him and it’s not true.
SELWYN HAUSMAN: I did visit him at Don Dale—that’s a matter of record. I can say that when I saw him he was distressed—that’s a matter of record. Probably beyond that I can’t say much. But, of course, anybody who’s in a detention centre when they don’t want to be there is distressed.
23:43:
LIZ JACKSON: Nobody can finally be sure what pushed distress to despair. Maybe the Coroner’s report later this year will be able to shed some light. But the stark facts remain—a 15-year-old boy died in custody, imprisoned under a law that allowed no other option to be considered. When the news broke of the young boy’s death, it caused a national storm of protest. The boy who stole textas had touched a chord. Suddenly, a Senate inquiry that had been running for months became a rallying point around the country.
24:36:
WOMAN: In the Northern Territory juveniles can go to prison if they commit property offences. This rally actually came out of the fact that a 15-year-old boy committed suicide in the Northern Territory.
LIZ JACKSON: The inquiry was established to report on a bill jointly sponsored by Labor, the Democrats and the Greens. The bill would prevent the mandatory sentencing of children.
25:00:
BOB BROWN, SENATOR, THE AUSTRALIAN GREENS: Well, Prime Minister, if you believe mandatory sentencing is the wrong thing, then you will stop it. And it is the Prime Minister of this country who must lead in overruling this iniquitous system which breaches international convention, which breaks the ethic of a fair go, but which, at the heart of it all, is wrong, because it destroys and damages kids—the future of this country.
25:30:
LIZ JACKSON: If any State or Territory breaches international conventions, it puts the whole of Australia in breach. The UN Convention on the Rights of the Child states that courts should have the best interests of the child as the primary consideration. Detention of a child must be the last resort, and for the shortest possible time.
DENIS BURKE: I’ve read the convention, and I know—I know the areas where we’ve been criticised. I know the issues that they are raising and I don’t believe we’re in breach.
26:00:
LIZ JACKSON: Imprisonment as a last resort?
DENIS BURKE: It doesn’t say you can’t imprison juveniles.
LIZ JACKSON: No, but it says imprisonment must be the last resort.
DENIS BURKE: Yes, and we would argue that the last resort in the interests of the child is reached when they have their third conviction in a court of law and it’s time for them to get some special attention in a place like Don Dale.
LIZ JACKSON: Were they in breach, would it bother you?
DENIS BURKE: Well, firstly you’d have to prove the breach. And then I’d consider what we did—do about it.
LIZ JACKSON: So if you’re convinced that they are in breach, you MIGHT do something about it?
DENIS BURKE: I’ve got to—I don’t believe we’re in breach.
LIZ JACKSON: But if you were convinced? If you were convinced—if someone were to convince you tomorrow that you were in breach of the United Nations Conventions on the Rights of the Child, would you do something about it?
DENIS BURKE: No.
26:48:
LIZ JACKSON: About 500 metres from the Don Dale Juvenile Detention Centre is what the young offenders call the Big House—Berrimah Jail. The penalties for adults caught committing property offences are far harsher than for juveniles. Under this regime it’s the first strike and you’re in, unless there are exceptional circumstances. For a second strike it’s three months, no exceptions, and one year in jail for a third strike, no matter how trivial the property offence. These jail terms were calculated back in 1996 by a senior officer in the Attorney-General Denis Burke’s department. His job was not to assess what was just, but how much the extra prisoners would cost.
27:45:
DAVID GIBSON, NT ATTORNEY GENERAL’S DEPARTMENT, ‘94-‘97: Their primary concern was cost, so essentially what happened was that this sort of gruesome numbers game developed where we were asked to prepare statistics based on how many extra prisoners a particular number would produce. For example, how many prisoners would you get if the first sentence was 7 days or 14 days or 28 days, whether the second sentence was going to be three months or six months. And in this way they slowly arrived at a level of sentencing which was going to look impressive on the one hand but at the same time not cause such an increase in the prison population as required the building of a new prison.
28:25:
LIZ JACKSON: In the Northern Territory, young boys become adults at 17 years of age. That young man could walk into any court tomorrow and the magistrate would have no option but to send that young man, 17-year-old, to jail for a year.
DENIS BURKE: Third conviction property.
LIZ JACKSON: Third conviction for a property offence—
DENIS BURKE: That’s right.
LIZ JACKSON: ..were it the case that he was simply stealing a tin of biscuits or not.
DENIS BURKE: So, you’re -- (Laughs) I mean, persistent criminals—
LIZ JACKSON: That’s the law you have in place.
DENIS BURKE: Persistent criminals don’t steal biscuits.
28:57:
LIZ JACKSON: Jamie Warramnurra was a persistent criminal. As is now well known, he was sentenced to a year in jail after he and two friends walked into the GEMCO mine canteen and stole a tin of biscuits and cordial on Christmas Day 1998 -- value $23.
SENIOR SGT. BOB THORNINGS: Nothing’s trivial. Anybody’s invasion of their house or, well, property is—can’t be classed as trivial.
LIZ JACKSON: But not as serious as perhaps -- ?
SENIOR SGT. BOB THORNINGS: The property that’s stolen is not as great here.
The damage done in Darwin—that is, to interior walls of graffiti and that type of nature—is not the same here, no.
LIZ JACKSON: It’s more—is it more youth here—just reoffending and reoffending and not so much a serious criminal?
SENIOR SGT. BOB THORNINGS: I’d say youth reoffending, yeah.I mean, you talk youth—you can talk, say, from 14 to, say early 20s as far as youth, you know.
30:03:
LIZ JACKSON: Do you find they tend to grow out of it?
SENIOR SGT. BOB THORNINGS: Yep. They do.
LIZ JACKSON: By the time they grow out of it these young men will have spent much of their youth in jail. Jamie’s two friends were also sent to Berrimah Jail for the biscuits and the cordial. One got three months. The other, like Jamie, was sent down for a year. The Groote Eylandt police say a year’s a long time to be away.
SENIOR SGT. BOB THORNINGS: If they go for 12 months, it’s gonna be a serious loss to their culture—very serious.
30:33:
ALISTAIR MACGREGOR: There’s so much wrong with the societies that these people that I’m dealing with are living in that I have no doubt that they will reoffend and reoffend. Therefore, in no time at all, they’ll be getting a year’s imprisonment, a short time back home, and another year’s imprisonment and a short time back home.
HAZEL LALARA: We’ll be losing our young people. We’ll be losing our people. We’ll be losing our culture. These are the young people that we want for our community—for the future. We need young people to stay in the community so the elders can teach them.
31:16:
LIZ JACKSON: It took over 14 months for Jamie’s case to get to trial. He’d originally told the court that he’d be pleading guilty, but on second thoughts or further advice he decided to fight it all the way.
GORDON RENOUF, NTH AUSTRALIAN ABORIGINAL LEGAL AID SERVICES: Facing a year’s penalty for such a relatively trivial offence, obviously the lawyers were looking at any opportunity they could to secure a not-guilty verdict. What’s good for Alan Bond is good for a person from a remote community—so far as the legal services go. But that costs the community money. I mean, these people would normally plead guilty, get punished, and yet we’re wasting money on the court’s time, the prosecution’s time, the police’s time, let alone the legal aid service’s time, on defending these cases. And so that’s another way in which this scheme costs the community money and can lead to injustice in that some of those people will get off on technicalities and will not be punished.
32:05:
LIZ JACKSON: Have you noticed there’s an increase in not-guilty pleas?
ALISTAIR MACGREGOR: Oh, yes. It’s very obvious. It’s not necessarily the work of the defendant, of course. It’s often the work of the lawyer.
LIZ JACKSON: Every lawyer who does criminal work in the Territory has a mandatory sentencing story to tell you, and more come up at every court sitting. The day we were in court with Selwyn Hausman he had three young adults on his court list, charged with receiving $2 worth of petrol siphoned off from the lawnmover at the local school. They were also charged with damaging the security mesh so they could get in. One of them is facing 12 months in jail.
32:31:
DENIS BURKE: I could mount an argument that some of those cases have been specifically set up to try and embarrass the mandatory sentencing laws. The reality is they don’t hurt or affect anyone unless you break the law.
ALISTAIR MACGREGOR: Maybe a year in jail would make them so fed up and frustrated about the whole thing that they will determine to lead a godly and honest life thereafter. I hope so.
LIZ JACKSON: Do you believe so?
ALISTAIR MACGREGOR: No.
33:20
LIZ JACKSON: Have any of your fellow magistrates said to you, “Don’t speak out now—politically it’s too hot?”
ALISTAIR MACGREGOR: I’m not looking for advancement. And I don’t know that I’ve said anything that didn’t need to be said.
LIZ JACKSON: But you wouldn’t expect that this is a career-enhancing move?
ALISTAIR MACGREGOR: I was brought up to believe that when you took on a judicial office you didn’t expect promotion. And I took it on for reasons which were good at the time, and, by and large, I’ve enjoyed what I’ve done. Except that I don’t believe anyone should enjoy jailing poor sods.
34:01:
DENIS BURKE: You know, rehabilitation’s fine, diversionary programs are fine, recognition of a person’s dysfunctional background and all those circumstances—fine.But what the community wants as well is punishment.
ADVERTISEMENT: Where do you stand on mandatory sentencing? The Labor Party is against it! The CLP say that victims have rights too. We say, “If you do the crime, you do the time.”
SUE CARTER, CLP CANDIDATE (ADVERTISEMENT): Unlike Labor, I’m for mandatory sentencing and you know why.
34:39:
LIZ JACKSON: It’s by-election time in Port Darwin two weeks ago. Sue Carter is the CLP candidate. The election has come about because of the resignation of former chief minister Shane Stone, the man who gave the Territory mandatory sentencing. Sue Carter’s doorknocking his old electorate, 700 kilometres from Groote Eylandt.
35:08:
SUE CARTER: What happened when the young fellow committed suicide was that Labor here in the Territory started saying, “We’re gonna get rid of mandatory sentencing,” da-da-da-da-der. Then they called in Kim Beazley and the Labor people from down south. They became involved. Then we had Senator Brown from Tasmania got involved. Then, of course, the United Nations got involved as well. So it’s all coming together now with people—all sorts of people—sticking their beaks in, basically. And that really annoys Territorians.
35:33:
LIZ JACKSON: If you were to back down, there would be a strong electoral backlash?
DENIS BURKE: I believe there would be because they are very supportive of the laws.
DENIS BURKE: My boy’s been—
SUE CARTER: Hello!
DENIS BURKE: How are you?
SUE CARTER: We’ve got the election tomorrow for Port Darwin, so we’re coming around.
MAN: It’s going to be a landslide win for you.
SUE CARTER: Do you think so?
DENIS BURKE: What do you think?
MAN: My word.
DENIS BURKE: You reckon that good?
MAN: The mandatory sentencing is the best thing they have brought in this town.
DENIS BURKE: We hope people agree with it.
MAN: Oh, yeah.
SUE CARTER: We’re going to find out tomorrow.
MAN: We’ve suffered long enough with all these criminals.
DENIS BURKE: Yeah, they run the joint.
36:12:
LIZ JACKSON: The CLP is calling the vote a referendum on mandatory sentencing. But there’s not much chance of losing it. They hold this seat by a comfortable margin of 14 per cent.
MAN: Two won our by-election, mate.
WOMAN: No worries.
MAN: You’ve broken the bloody—
36:37:
LIZ JACKSON: The by-election results have just come in at CLP headquarters. While the vote is down by 3 per cent, the CLP has romped back in.
DENIS BURKE: 2 per cent, two-party preferred. Mum’s happy.
LIZ JACKSON: Do you think this sends a message to Canberra?
DENIS BURKE: This sends a message—I’ll tell you what—
MAN: Does it ever! Whoooo! Butt out, ya buggers. Go home!
DENIS BURKE: The message it sends to Canberra is really the message I think Territorians, ordinary people, are saying to politicians. “We are not dumb, we are not stupid, we can think for ourselves, we can make our own minds up, we know what mandatory sentencing is all about, and we like the way the CLP does business. We make the decisions in the Northern Territory. Just stay out, just leave us alone—let us run our own show.” And if there is—if there is another message, it’s, ah, maybe we might like some of this stuff down there.
37:39:
LIZ JACKSON: Do you think it means the Senate will back off, though?
DENIS BURKE: Well—the—
MAN: No, they’re too stupid.
DENIS BURKE: They’re too stupid, because the ‘would-bes if they could bes’ are the ones on the Senate Committee. Who are they anyway?
MAN: Never heard of them!
DENIS BURKE: They mean nothing. They got about this much of the Australian vote. They think they run Australia. And they’re saying to us, they’re saying to Australians, “We are so smart, this is our report, this is how Australia should do
business.” Law-abiding Australians are saying, “Go away, go away.”
(
Supporter shouts) MAN: Go, the Territory!
MAN: Good on you, Denis.
MAN: Good on you, mate.
MAN: Good on you, mate.
38:23:
LIZ JACKSON: The by-election result allows Denis Burke to claim a popular mandate to ignore all the criticism levelled at the laws. The Prime Minister has described the laws as silly.
DENIS BURKE: Well, he’s one person with one view.
LIZ JACKSON: Doesn’t bother you?
DENIS BURKE: Well, I had the best part of 4,000 submissions at a by-election last week and they were pretty supportive. So, you know.
LIZ JACKSON: A former chief justice has described them as immoral.
38:47:
DENIS BURKE: Well, chief justices often have the luxury of speaking out on these things. Often if attorneys speak out they get pilloried.
LIZ JACKSON: The head of the Family Court has said he’s ashamed for Australia that we have these laws.
DENIS BURKE: Well, I don’t know what they’ve got to be ashamed of. All we’re doing is protecting law-abiding Australians, and I believe we have the support of law-abiding Australians.
LIZ JACKSON: Well, the whole—I mean, the rationale for human rights legislation and human rights laws is precisely the fact that majority rule is not always rule that respects human rights. And that’s why you have human rights conventions—because the majority doesn’t always respect human rights.
39:26:
DENIS BURKE: I reckon that anyone—anyone that could even think for a moment that the human rights record in Australia today is not something we should be proud of needs their head examined, when you compare us to other basket-case nations around the world. We should have our head up high, not lower it down where we’re contravening some so-called ‘conventions’.
39:56:
LIZ JACKSON: It’s the morning of the tabling of the Senate Committee’s report on mandatory sentencing. It concluded that the Northern Territory’s law in particular breached human rights conventions.
MAN: Hi, Senator.
LIZ JACKSON: It was clear that the Senate would, in due course, pass the so-called ‘Brown bill’, which aims to overturn the laws in both Western Australia and the Northern Territory.
40:22:
BOB BROWN: It is up to the Prime Minister to show leadership in this nation—a matter which is always the most difficult—on moral and ethical issues—
LIZ JACKSON: The critical question has always been what if anything would happen in the House of Representatives, where the Government has the numbers? Brendan Nelson is one of a small group of Coalition backbenchers who, early in the debate, publicly and passionately denounced the effect of the laws.
40:53:
BRENDAN NELSON: Issues of great moral importance and value are very hard to define, but you know them when you see them. This is one of them.
LIZ JACKSON: Nelson has a quotation from John F. Kennedy framed on his wall.
BRENDAN NELSON: “A man does what he must in spite of personal consequences, in spite of obstacles and dangers and pressures, and that is the basis of all human morality.” And all of the issues that we deal with certainly in Federal Parliament and in life itself have beneath them a moral basis—the eternal question, “What is the right thing to do?”
41:32:
LIZ JACKSON: So what IS the right thing to do?
Brendan Nelson is in a minority in the party who support the use of the Commonwealth’s power to overrule the Territory’s laws. The majority take the Prime Minister’s view that the Northern Territory’s right to make its own laws should be respected. Despite denials, the numbers were being counted in fellow Liberal Chris Pyne’s office. How many are prepared to go with you as far as saying that if the Northern Territory doesn’t change those laws, the Federal Parliament should overrule them?
42:06:
CHRIS PYNE, LIBERAL BACKBENCHER: Well, I don’t know. I haven’t had discussions with my colleagues. I haven’t been drawing up a list of anybody who feels strongly about the issue. I’d like to see the Federal Government sit down with the Northern Territory Government and perhaps talk about ways that we can help them to do something different to mandatory sentencing. But mandatory sentencing itself is what is pernicious, and that needs to be removed.
42:31:
LIZ JACKSON: When the list WAS drawn up, there were nine Coalition backbenchers lining up with Chris Pyne and Brendan Nelson—two more than was needed to combine with Labor and vote down mandatory sentencing. But the Prime Minister declined to allow his backbenchers a conscience vote, and they are not prepared to defy him.
CHRIS PYNE: The Prime Minister’s ruled out a conscience vote on this matter at this time, and while that’s the case, we are bound by party discipline to support the party’s position on mandatory sentencing.
LIZ JACKSON: Do you believe if John Howard had allowed the Coalition backbenchers a conscience vote that you would have lost your laws?
DENIS BURKE: Yes. Absolutely.
43:14:
LIZ JACKSON: Next Monday, the Independent MP Peter Andren will introduce his own private member’s bill into the House of Representatives. It’s a more modest version of the Bob Brown bill, which seeks to prevent the mandatory imprisonment of children in the Northern Territory alone. Every MP will then be faced with the decision, “What is the right thing to do?” For the bill to even be debated, seven Coalition members will have to breach party discipline and cross the floor. All the indications are that none of them are willing to do so.
44:00
PETER ANDREN, INDEPENDENT MP: I mean, the politics of this just amazes me. It seems as if the politics is overwhelming the straight-out morality, even amongst those of a mind to support the thrust of Bob Brown’s initiative.
DENIS BURKE: It’s good news for law-abiding Territorians who want to make their own laws without interference. It’s certainly good news for me, because I appreciate the support the Coalition are giving me on that principled stance, and the continued support of the Prime Minister in maintaining the fact that this is an issue for a State or Territory.
LIZ JACKSON: Do you think the issue is dead as far as Federal intervention goes?
DENIS BURKE: Well, it’ll never be dead, I suppose, whenever there are instances such as the death of Johnno that brought this furore along.
LIZ JACKSON: Are you fearful for your own children?
44:50:
HAZEL LALARA: Yes. I am. Because, um—next week court, on the 21st, my son is going to court, and he had the same offence as that boy who hung himself at Don Dale.
LIZ JACKSON: The textas and—The textas and the pencils, you know? And, ah—he—he’s going to jail for that. I know he’s going to jail for that. And he keeps on saying, if, ah—if he goes to jail, he’s going to hang himself, and I feel very frightened inside and I just want to do something about it. I’ve already told the lawyers what’s going to happen, what he’s aiming at.
45:22:
LIZ JACKSON: Hazel feels helpless. The lawyers have had her son’s case adjourned. At 17 years old, if he’s found guilty, that’s a mandatory three months minimum in an adult jail. The police may find it hard, however, to prove their case. One of the two witnesses to the crime, the young boy who hanged himself in Don Dale, will not be in court. Why does he want to do the same thing?
45:55:
HAZEL LALARA: Well, they been very close together. They grew up together. And—maybe he wants to be with him. He wants to die exactly what that boy did. That’s what he told me.
LIZ JACKSON: Hazel is hoping that maybe before her son goes to court for the textas, the pencils and the paint, that the Federal Parliament will overturn the law.
HAZEL LALARA: I’m not sure. But I wish they could change the law. Or throw the new law away. Wash it away, throw it in the ocean and make it drift away.
46:40 end
Go to Jail
44’
May 2000
2:52:
LIZ JACKSON: Up in the Northern Territory, they’ve got a message for southern politicians.
DENIS BURKE, NORTHERN TERRITORY CHIEF MINISTER: We are not dumb. We are not stupid. We can think for ourselves. We can make our own minds up. We know what mandatory sentencing is all about. We make the decisions in the Northern Territory. Just stay out.
3:08:
BRENDAN NELSON, COALITION BACKBENCHER: Issues of great moral importance and value are very hard to define. But you know them when you see them. This is one of them.
3:23:
LIZ JACKSON: Five weeks ago, the body of a 15-year-old boy was returned home to Groote Eylandt. He had hanged himself in the juvenile detention centre in Darwin. For a moment, it appeared that his death in custody might force an end to the mandatory detention of children under Northern Territory law. But to the relief of the Territory Government, it now appears that moment has passed. Do you believe if John Howard had allowed the Coalition backbenchers a conscience vote, that you would have lost your laws?
3:56:
DENIS BURKE: Yes. Absolutely.
4:06:
LIZ JACKSON: Tonight on Four Corners, NT law—“no ifs and no buts—go to jail.”
Once a month, a small plane leaves Darwin with a magistrate on board, taking the whitefellas’ law to a bush court in a remote Aboriginal community.
4:40:
ALISTAIR MACGREGOR, NT MAGISTRATE: The whitefella law is—It’s a real mystery to most Australians, I think, of my age. It was the one thing we were taught absolutely nothing about at school. And it’s a complete mystery to a lot of Aboriginal people.
4:55:
HAZEL LALARA, ABORIGINAL WOMAN: Who understands the new law? Us Aboriginal people don’t understand that new law, especially young people who are not educated. They don’t know that new law. They don’t understand it.
5:14:
LIZ JACKSON: The mandatory sentencing laws came into effect three years ago. It’s not disputed that over 70 per cent of people now caught in their net come from small remote Aboriginal communities. Groote Eylandt is a two-hour flight east from Darwin in the Gulf of Carpentaria. This is Aboriginal land but part of it is leased to the South African-owned mining company GEMCO and this is one of the world’s richest manganese mines.
5:51:
Around 900 Aboriginal people live in the island’s two communities. Around 1,000 mostly white people live in the mining town of Alyangula. The Aboriginal communities and Alyangula are like two separate worlds.
6:10:
GRAHAM CARR, FORMER DIRECTOR, MIWATJ ABORIGINAL LEGAL SERVICE: There’s an obvious ‘have and have not’ situation on the island. There’s a small community where -- ..Alyangula, where the people who work in the mine live and it’s got manicured lawns and there’s a golf club, etc. And outside of that—you know, 15, 20-minute drive from that—is the community of Angurugu which couldn’t be more different. You know, visibly it’s a very poor community.
6:50:
ALISTAIR MACGREGOR: We still have a situation where many of the lads are not being fed at home. They have families that are completely dysfunctional. The place revolves around alcohol. And most of the offences are not as they are in the northern suburbs, are not on people’s homes—they’re on the local store and places like that, the school, where they can get food. And if they can get alcohol as well, so much the better.
7:25:
LIZ JACKSON: The court house is in Alyangula. It’s a pretty typical court day. There are 39 cases on the court list. All the defendants bar one are Aboriginal. And most will involve mandatory sentencing. Selwyn Hausman is the director of the Miwatj Aboriginal Legal Service. He’s advising two young trainee health workers charged with stealing a $2 block of chocolate from a police station. He’s reading from the charge sheet.
8:03
SELWYN HAUSMAN, DIRECTOR, MIWATJ ABORIGINAL LEGAL SERVICE: It says a police officer looked out of the window of the police station to watch the offender and co-offender leave and saw the co-offender, that’s you, with half a block of chocolate in his hands.
LIZ JACKSON: Unless they can prove exceptional circumstances, these young men are facing a mandatory 14 days in jail for half a block of chocolate each. It’s their first-strike offence.
8:27:
SELWYN HAUSMAN: So you didn’t take it?
ABORIGINAL BOY: Not me.
SELWYN HAUSMAN: Well somebody took it, or you’ve got it from somewhere else of you’ve picked it up off the ground. Nobody saw you take it, they saw you with the chocolate. Therefore, there could be another explanation, you could’ve picked it up off the ground.
8:42:
LIZ JACKSON: Selwyn reckons that about two-thirds of his clients who are sent to jail would go there anyway, with or without mandatory sentencing. It’s the other third that bother him.
SELWYN HAUSMAN: I feel rather helpless on the trivial matters. I sometimes ask myself why I am in the court. Am I there for window dressing, or to facilitate the processing of people through the system? I sometimes feel ashamed that I’m even participating in it. OK, we’re going into court. But of course, I rationalise that somebody has to be there to represent the client, to assist the court wherever possible to ensure that at least the minimum period of imprisonment is given.
9:31:
LIZ JACKSON: At the last moment, the police decide to drop the chocolate charges. Maybe they also feel prison’s a bit steep. Maybe it’s the glare of public attention on the way the law is working. Either way, it illustrates a trend that magistrates dislike, that the police are now effectively deciding who goes to jail. Alistair MacGregor is the only Territory magistrate willing to tell us how the new laws are working. Does it concern you at all that the discretion about how to deal with a case is now moving from magistrates like yourself to prosecutors like the police?
10:08:
ALISTAIR MACGREGOR: Yes, it is, it is.
LIZ JACKSON: How serious a concern is that for you?
ALISTAIR MACGREGOR: Well, it’s not public. And the more public we have the courts—We think the more public they are, the better—the greater the public confidence.
LIZ JACKSON: So they’re not accountable? Is that your concern—that those decisions aren’t public?
ALISTAIR MACGREGOR: Well, they’re not really accountable, are they?
10:33:
NT POLICE OFFICER: Do you reckon these young fellas are starting to think—
LIZ JACKSON: The Groote Eylandt police have it easy when it comes to solving crime, even when the theft is not from the police station itself. Part of the reason that mandatory sentencing hits these small remote communities so hard is that while the clear-up rate for burglary in Darwin is around 15 per cent, everyone here gets caught.
10:58:
SENIOR SGT. BOB THORNINGS, GROOTE EYLANDT POLICE: Being a small community, everybody knows everybody else’s business and it’s not uncommon for one person to dob in the next person and so the chain goes. And it just escalates from there.
LIZ JACKSON: But it is much higher—the clear-up rate than Darwin?
SENIOR SGT. BOB THORNINGS: Oh, yes.
LIZ JACKSON: What would be a rough comparison?
SENIOR SGT. BOB THORNINGS: 95 per cent.
LIZ JACKSON: Compared to what?
SENIOR SGT. BOB THORNINGS: Anywhere in Australia.
11:25:
LIZ JACKSON: As usual, there are only a few cases today where juveniles are involved. One is a 16-year-old boy charged with breaking seven light bulbs at the airport. If the case is proved, he’s off to detention for 28 days. It’s now two months since the 15-year-old boy who died in custody was sentenced here. The lawyer who originally interviewed him was Graham Carr.
12:00:
GRAHAM CARR: I remember him being physically small—a little kid, shy, giggly, difficult to get instructions from, difficult to talk to. Shy, giggled a lot, black face, flashing white teeth, lovely smile—that’s what I can recall. When I heard the name, I thought, “Yes, I know that kid.”
12:30:
LIZ JACKSON: The boy’s mother died when he was a baby and three years ago his father was struck and killed by a car in Darwin. Hazel Lalara says the boy was a grandson to her in the Aboriginal way. Hazel came to court with him on the day he was dealt with for his third-strike property offence.
12:50:
HAZEL LALARA: I was there to support him, to get a community work or a fine, and I was happy to pay for the fine. But I was told that he couldn’t, uh — He couldn’t get either of them because of the new law.
LIZ JACKSON: That he’d have to go to jail?
HAZEL LALARA: He had to go to jail.
13:20:
LIZ JACKSON: The mandatory sentencing laws cover property offences, like theft, break and enter and receiving stolen goods. In the case of a juvenile who’s a first offender, there’s no fixed penalty. For the second strike, it’s jail for 28 days, unless instead they’re put on a so-called diversionary program. No child from Groote Eylandt has ever been diverted from jail because no such programs have operated here. For third-strike offenders, there’s no ifs and buts. However trivial the offence may be, it’s off to detention centre for 28 days. The young boy’s lawyer on the day he went to court was Selwyn Hausman. The magistrate was Mr Greg Cavanagh. The hearing took all of 15 minutes. The charges were read and the police gave details of two separate events.
14:15:
On Saturday 27 November, the defendant and a friend entered the Angurugu offices through the toilet. The defendant went looking for the keys to the safe. He took a number of pens, textas and liquid paper. When asked why, the defendant replied, “For writing names. "On Sunday, 5 December, the defendant and his friends entered the Angurugu primary school building and removed a tin of paint and a plastic container of gear oil. These facts were agreed by the boy and his lawyer but the question of whether these are trivial matters have now become the centre of a political debate about law and order and punishment.
13:00:
DENIS BURKE: You give an example of one of those instances where a person has gone to jail and we can discuss whether it’s trivial or not.
LIZ JACKSON: Well, we’re talking about a case where he broke into a community centre, and he broke into a school, and he took textas.
DENIS BURKE: He took what was available.
LIZ JACKSON: He took textas.
DENIS BURKE: He took what was available.
LIZ JACKSON: And stationery.
DENIS BURKE: Are you going to suggest if there was $1,000 there, he’d have left it?
LIZ JACKSON: Well, he certainly didn’t take it. I mean we’ve got to deal with what actually happened.
DENIS BURKE: Yes, but—
LIZ JACKSON: He took textas and he took stationery and he broke into a school and he took paint. Now, you may describe that as not trivial but a lot of people would describe that as trivial.
13:35:
DENIS BURKE: Well, what I would say to those same people is—is a person walking around your house of a night, is that trivial?
LIZ JACKSON: But it wasn’t a house, it wasn’t a dwelling. We’re talking about somebody in a school after hours, in a community centre that is closed. It’s not someone’s dwelling.
DENIS BURKE: Well, it’s the same thing. It’s a break and enter of a night. You know, it’s trespass of a night.
15:59:
LIZ JACKSON: The young boy spoke only three words during the entire hearing—“Guilty,” “Guilty,” and “Guilty.” His lawyer spoke briefly in mitigation. “I think one of the problems with young people in communities is that there’s nothing available for them and they find themselves at loose ends and do stupid things. Which is of course no excuse before Your Worship, but they’re relatively minor things. They don’t involve cars.” The magistrate interrupted. “He’s got to go to detention centre for 28 days. I’ve got no option. He was there last year, he gets out, and within a few days he’s breaking into school and community offices.”
16:41:
The magistrate then addressed the boy. “You’ve got to stop doing this kind of thing, otherwise you’ll end up going to jail for a long time. Yes, take him away—detention centre for 28 days.”The magistrate did say, on sending him into detention, “I have no option but to sentence you, under the laws as they stand, to 28 days in detention.” What do you think he meant by saying that?
DENIS BURKE: Well, from time to time, magistrates speak out from the bench. You could interpret that as a lack of support from that magistrate, a lack of discretion, a lack of options in his opinion. My answer to that is that, “OK, yeah, but too bad.”
17:25:
ALISTAIR MACGREGOR: We’ve been taught that you impose the most merciful sentence you can consistent with the justice of the case. And that means you’re always trying to keep things down as low as possible.
LIZ JACKSON: But do you think people are fed up with mercy?
ALISTAIR MACGREGOR: Oh, look, it’s no good being weakly merciful and it’s not our job to be weakly merciful. That’s what this is about. We’re obviously seen to be weakly merciful. Mercy has its place. Mercy—Without mercy, I think the community we have will become a totally different place.And not one that I would want to live in.
18:04:
LIZ JACKSON: As the boy was taken to the police cells next door to the court, he called out to Selwyn Hausman, saying he didn’t want to go to jail—could Selwyn get him a community service order? Selwyn asked, did he understand why he was going to jail? The boy replied, “Yes, because I’m black.”
SELWYN HAUSMAN: That comment is not a comment which is uncommon. I hear it on a number of occasions in relation to matters before the court. In fact, in relation to general matters in life, where Aboriginal people find themself in a situation.
18:38:
HAZEL LALARA: I didn’t actually go and see him before I left because I was a bit upset. But his, um—uncles, my two sons, went to see him before he left and, um—gave him a can of—a bottle of Coke and, ah some cigarettes. That’s it.
LIZ JACKSON: Some cigarettes?
HAZEL LALARA: Mmm. He smokes. He used to smoke.
19:08:
LIZ JACKSON: The last time the young boy was flown to Darwin, it was also to go to detention. His second-strike offence was for stealing food, cigarettes and a large amount of cash from the local store. On that occasion and this time as well, it was his own community who reported the crime and it’s creating tensions.
19:32:
SELWYN HAUSMAN: They’re caught between the devil and the deep blue sea. They either report it, in which case they’re faced with a problem that there’s mandatory sentencing involved in a trivial matter. They’re also faced with the problem that if they do report it that the families of the alleged offender then become irate. It creates family conflicts. And on the other hand if they don’t report it, then the offending is undealt with and there are problems which flow from that.
20:07:
LIZ JACKSON: Is it causing tension between the people who report the crimes to the police and the people who get reported on?
HAZEL LALARA: Mmm. That’s the big matter that’s happened, because, um—you know, like, ah—When they report it to the police—when they report it to the police, it sort of, um—make—make us really upset doing it.
20:36:
LIZ JACKSON: On the day the boy was driven into the Don Dale Detention Centre in the outer suburbs of Darwin, there were 18 juveniles held in detention. Fifteen of the 18 boys were Aboriginal. All around Australia, Aboriginal children are hugely over-represented in juvenile detention centres. But on this measure, the Northern Territory is in fact better than some of the southern States. The numbers of children in detention here had been falling since the early 1990s. But after the new laws came into effect, the numbers rose significantly. The young boy from Groote Eylandt was one of five Aborigines from a remote community.
21:28:
STEVE PARKER, DIRECTOR, DON DALE DETENTION CENTRE: Well, he was—He wasn’t that, well—He was just a community boy that come in.
LIZ JACKSON: Particularly naughty?
STEVE PARKER: No.
A couple was—He’d get a bit grumpy a couple of times and tell you where to go. But that’s alright—“Listen, sonny, you can’t talk to me like that.” And he was dealt with but in a very gentle manner. I mean you have to—well, you have to sort of take that sort of thing. This is the sort of place it is.
21:54:
LIZ JACKSON: On the 23rd day of his 28-day detention, the boy was shut in his room for being naughty.
STEVE PARKER: They had had their dinner, they’d had their drink of cordial, they came out here to, you know, sort of recreation time with a few more chores to do. He was asked to do a few chores, he didn’t want to and he got a bit heated under the collar, but it wasn’t serious. He got the soft option, “Go to your room,” told that we’ll see you in a couple of minutes when you cool down. And when we did see him, in a very short time, yes, he wasn’t well.
22:34:
LIZ JACKSON: The boy had hanged himself from the end of his bed with a sheet. He was rushed to hospital and died several hours later. No-one wants to feel responsible for his sad cry for help.
22:53:
STEVE PARKER: I had breakfast with him that morning and he seemed—a normal average kid. He didn’t stand out from anybody else. But he wasn’t happy about going home for whatever reason and I can’t speculate on that—that’ll be up to the coroner—but, yeah, he obviously didn’t want to go home.
LIZ JACKSON: So you think that’s -- ?
STEVE PARKER: Well, that’s only my opinion.
23:08:
HAZEL LALARA: When people say that, it makes me really upset and angry same time, you know? It makes me angry that, uh—they say these things about him and it’s not true.
SELWYN HAUSMAN: I did visit him at Don Dale—that’s a matter of record. I can say that when I saw him he was distressed—that’s a matter of record. Probably beyond that I can’t say much. But, of course, anybody who’s in a detention centre when they don’t want to be there is distressed.
23:43:
LIZ JACKSON: Nobody can finally be sure what pushed distress to despair. Maybe the Coroner’s report later this year will be able to shed some light. But the stark facts remain—a 15-year-old boy died in custody, imprisoned under a law that allowed no other option to be considered. When the news broke of the young boy’s death, it caused a national storm of protest. The boy who stole textas had touched a chord. Suddenly, a Senate inquiry that had been running for months became a rallying point around the country.
24:36:
WOMAN: In the Northern Territory juveniles can go to prison if they commit property offences. This rally actually came out of the fact that a 15-year-old boy committed suicide in the Northern Territory.
LIZ JACKSON: The inquiry was established to report on a bill jointly sponsored by Labor, the Democrats and the Greens. The bill would prevent the mandatory sentencing of children.
25:00:
BOB BROWN, SENATOR, THE AUSTRALIAN GREENS: Well, Prime Minister, if you believe mandatory sentencing is the wrong thing, then you will stop it. And it is the Prime Minister of this country who must lead in overruling this iniquitous system which breaches international convention, which breaks the ethic of a fair go, but which, at the heart of it all, is wrong, because it destroys and damages kids—the future of this country.
25:30:
LIZ JACKSON: If any State or Territory breaches international conventions, it puts the whole of Australia in breach. The UN Convention on the Rights of the Child states that courts should have the best interests of the child as the primary consideration. Detention of a child must be the last resort, and for the shortest possible time.
DENIS BURKE: I’ve read the convention, and I know—I know the areas where we’ve been criticised. I know the issues that they are raising and I don’t believe we’re in breach.
26:00:
LIZ JACKSON: Imprisonment as a last resort?
DENIS BURKE: It doesn’t say you can’t imprison juveniles.
LIZ JACKSON: No, but it says imprisonment must be the last resort.
DENIS BURKE: Yes, and we would argue that the last resort in the interests of the child is reached when they have their third conviction in a court of law and it’s time for them to get some special attention in a place like Don Dale.
LIZ JACKSON: Were they in breach, would it bother you?
DENIS BURKE: Well, firstly you’d have to prove the breach. And then I’d consider what we did—do about it.
LIZ JACKSON: So if you’re convinced that they are in breach, you MIGHT do something about it?
DENIS BURKE: I’ve got to—I don’t believe we’re in breach.
LIZ JACKSON: But if you were convinced? If you were convinced—if someone were to convince you tomorrow that you were in breach of the United Nations Conventions on the Rights of the Child, would you do something about it?
DENIS BURKE: No.
26:48:
LIZ JACKSON: About 500 metres from the Don Dale Juvenile Detention Centre is what the young offenders call the Big House—Berrimah Jail. The penalties for adults caught committing property offences are far harsher than for juveniles. Under this regime it’s the first strike and you’re in, unless there are exceptional circumstances. For a second strike it’s three months, no exceptions, and one year in jail for a third strike, no matter how trivial the property offence. These jail terms were calculated back in 1996 by a senior officer in the Attorney-General Denis Burke’s department. His job was not to assess what was just, but how much the extra prisoners would cost.
27:45:
DAVID GIBSON, NT ATTORNEY GENERAL’S DEPARTMENT, ‘94-‘97: Their primary concern was cost, so essentially what happened was that this sort of gruesome numbers game developed where we were asked to prepare statistics based on how many extra prisoners a particular number would produce. For example, how many prisoners would you get if the first sentence was 7 days or 14 days or 28 days, whether the second sentence was going to be three months or six months. And in this way they slowly arrived at a level of sentencing which was going to look impressive on the one hand but at the same time not cause such an increase in the prison population as required the building of a new prison.
28:25:
LIZ JACKSON: In the Northern Territory, young boys become adults at 17 years of age. That young man could walk into any court tomorrow and the magistrate would have no option but to send that young man, 17-year-old, to jail for a year.
DENIS BURKE: Third conviction property.
LIZ JACKSON: Third conviction for a property offence—
DENIS BURKE: That’s right.
LIZ JACKSON: ..were it the case that he was simply stealing a tin of biscuits or not.
DENIS BURKE: So, you’re -- (Laughs) I mean, persistent criminals—
LIZ JACKSON: That’s the law you have in place.
DENIS BURKE: Persistent criminals don’t steal biscuits.
28:57:
LIZ JACKSON: Jamie Warramnurra was a persistent criminal. As is now well known, he was sentenced to a year in jail after he and two friends walked into the GEMCO mine canteen and stole a tin of biscuits and cordial on Christmas Day 1998 -- value $23.
SENIOR SGT. BOB THORNINGS: Nothing’s trivial. Anybody’s invasion of their house or, well, property is—can’t be classed as trivial.
LIZ JACKSON: But not as serious as perhaps -- ?
SENIOR SGT. BOB THORNINGS: The property that’s stolen is not as great here.
The damage done in Darwin—that is, to interior walls of graffiti and that type of nature—is not the same here, no.
LIZ JACKSON: It’s more—is it more youth here—just reoffending and reoffending and not so much a serious criminal?
SENIOR SGT. BOB THORNINGS: I’d say youth reoffending, yeah.I mean, you talk youth—you can talk, say, from 14 to, say early 20s as far as youth, you know.
30:03:
LIZ JACKSON: Do you find they tend to grow out of it?
SENIOR SGT. BOB THORNINGS: Yep. They do.
LIZ JACKSON: By the time they grow out of it these young men will have spent much of their youth in jail. Jamie’s two friends were also sent to Berrimah Jail for the biscuits and the cordial. One got three months. The other, like Jamie, was sent down for a year. The Groote Eylandt police say a year’s a long time to be away.
SENIOR SGT. BOB THORNINGS: If they go for 12 months, it’s gonna be a serious loss to their culture—very serious.
30:33:
ALISTAIR MACGREGOR: There’s so much wrong with the societies that these people that I’m dealing with are living in that I have no doubt that they will reoffend and reoffend. Therefore, in no time at all, they’ll be getting a year’s imprisonment, a short time back home, and another year’s imprisonment and a short time back home.
HAZEL LALARA: We’ll be losing our young people. We’ll be losing our people. We’ll be losing our culture. These are the young people that we want for our community—for the future. We need young people to stay in the community so the elders can teach them.
31:16:
LIZ JACKSON: It took over 14 months for Jamie’s case to get to trial. He’d originally told the court that he’d be pleading guilty, but on second thoughts or further advice he decided to fight it all the way.
GORDON RENOUF, NTH AUSTRALIAN ABORIGINAL LEGAL AID SERVICES: Facing a year’s penalty for such a relatively trivial offence, obviously the lawyers were looking at any opportunity they could to secure a not-guilty verdict. What’s good for Alan Bond is good for a person from a remote community—so far as the legal services go. But that costs the community money. I mean, these people would normally plead guilty, get punished, and yet we’re wasting money on the court’s time, the prosecution’s time, the police’s time, let alone the legal aid service’s time, on defending these cases. And so that’s another way in which this scheme costs the community money and can lead to injustice in that some of those people will get off on technicalities and will not be punished.
32:05:
LIZ JACKSON: Have you noticed there’s an increase in not-guilty pleas?
ALISTAIR MACGREGOR: Oh, yes. It’s very obvious. It’s not necessarily the work of the defendant, of course. It’s often the work of the lawyer.
LIZ JACKSON: Every lawyer who does criminal work in the Territory has a mandatory sentencing story to tell you, and more come up at every court sitting. The day we were in court with Selwyn Hausman he had three young adults on his court list, charged with receiving $2 worth of petrol siphoned off from the lawnmover at the local school. They were also charged with damaging the security mesh so they could get in. One of them is facing 12 months in jail.
32:31:
DENIS BURKE: I could mount an argument that some of those cases have been specifically set up to try and embarrass the mandatory sentencing laws. The reality is they don’t hurt or affect anyone unless you break the law.
ALISTAIR MACGREGOR: Maybe a year in jail would make them so fed up and frustrated about the whole thing that they will determine to lead a godly and honest life thereafter. I hope so.
LIZ JACKSON: Do you believe so?
ALISTAIR MACGREGOR: No.
33:20
LIZ JACKSON: Have any of your fellow magistrates said to you, “Don’t speak out now—politically it’s too hot?”
ALISTAIR MACGREGOR: I’m not looking for advancement. And I don’t know that I’ve said anything that didn’t need to be said.
LIZ JACKSON: But you wouldn’t expect that this is a career-enhancing move?
ALISTAIR MACGREGOR: I was brought up to believe that when you took on a judicial office you didn’t expect promotion. And I took it on for reasons which were good at the time, and, by and large, I’ve enjoyed what I’ve done. Except that I don’t believe anyone should enjoy jailing poor sods.
34:01:
DENIS BURKE: You know, rehabilitation’s fine, diversionary programs are fine, recognition of a person’s dysfunctional background and all those circumstances—fine.But what the community wants as well is punishment.
ADVERTISEMENT: Where do you stand on mandatory sentencing? The Labor Party is against it! The CLP say that victims have rights too. We say, “If you do the crime, you do the time.”
SUE CARTER, CLP CANDIDATE (ADVERTISEMENT): Unlike Labor, I’m for mandatory sentencing and you know why.
34:39:
LIZ JACKSON: It’s by-election time in Port Darwin two weeks ago. Sue Carter is the CLP candidate. The election has come about because of the resignation of former chief minister Shane Stone, the man who gave the Territory mandatory sentencing. Sue Carter’s doorknocking his old electorate, 700 kilometres from Groote Eylandt.
35:08:
SUE CARTER: What happened when the young fellow committed suicide was that Labor here in the Territory started saying, “We’re gonna get rid of mandatory sentencing,” da-da-da-da-der. Then they called in Kim Beazley and the Labor people from down south. They became involved. Then we had Senator Brown from Tasmania got involved. Then, of course, the United Nations got involved as well. So it’s all coming together now with people—all sorts of people—sticking their beaks in, basically. And that really annoys Territorians.
35:33:
LIZ JACKSON: If you were to back down, there would be a strong electoral backlash?
DENIS BURKE: I believe there would be because they are very supportive of the laws.
DENIS BURKE: My boy’s been—
SUE CARTER: Hello!
DENIS BURKE: How are you?
SUE CARTER: We’ve got the election tomorrow for Port Darwin, so we’re coming around.
MAN: It’s going to be a landslide win for you.
SUE CARTER: Do you think so?
DENIS BURKE: What do you think?
MAN: My word.
DENIS BURKE: You reckon that good?
MAN: The mandatory sentencing is the best thing they have brought in this town.
DENIS BURKE: We hope people agree with it.
MAN: Oh, yeah.
SUE CARTER: We’re going to find out tomorrow.
MAN: We’ve suffered long enough with all these criminals.
DENIS BURKE: Yeah, they run the joint.
36:12:
LIZ JACKSON: The CLP is calling the vote a referendum on mandatory sentencing. But there’s not much chance of losing it. They hold this seat by a comfortable margin of 14 per cent.
MAN: Two won our by-election, mate.
WOMAN: No worries.
MAN: You’ve broken the bloody—
36:37:
LIZ JACKSON: The by-election results have just come in at CLP headquarters. While the vote is down by 3 per cent, the CLP has romped back in.
DENIS BURKE: 2 per cent, two-party preferred. Mum’s happy.
LIZ JACKSON: Do you think this sends a message to Canberra?
DENIS BURKE: This sends a message—I’ll tell you what—
MAN: Does it ever! Whoooo! Butt out, ya buggers. Go home!
DENIS BURKE: The message it sends to Canberra is really the message I think Territorians, ordinary people, are saying to politicians. “We are not dumb, we are not stupid, we can think for ourselves, we can make our own minds up, we know what mandatory sentencing is all about, and we like the way the CLP does business. We make the decisions in the Northern Territory. Just stay out, just leave us alone—let us run our own show.” And if there is—if there is another message, it’s, ah, maybe we might like some of this stuff down there.
37:39:
LIZ JACKSON: Do you think it means the Senate will back off, though?
DENIS BURKE: Well—the—
MAN: No, they’re too stupid.
DENIS BURKE: They’re too stupid, because the ‘would-bes if they could bes’ are the ones on the Senate Committee. Who are they anyway?
MAN: Never heard of them!
DENIS BURKE: They mean nothing. They got about this much of the Australian vote. They think they run Australia. And they’re saying to us, they’re saying to Australians, “We are so smart, this is our report, this is how Australia should do
business.” Law-abiding Australians are saying, “Go away, go away.”
(
Supporter shouts) MAN: Go, the Territory!
MAN: Good on you, Denis.
MAN: Good on you, mate.
MAN: Good on you, mate.
38:23:
LIZ JACKSON: The by-election result allows Denis Burke to claim a popular mandate to ignore all the criticism levelled at the laws. The Prime Minister has described the laws as silly.
DENIS BURKE: Well, he’s one person with one view.
LIZ JACKSON: Doesn’t bother you?
DENIS BURKE: Well, I had the best part of 4,000 submissions at a by-election last week and they were pretty supportive. So, you know.
LIZ JACKSON: A former chief justice has described them as immoral.
38:47:
DENIS BURKE: Well, chief justices often have the luxury of speaking out on these things. Often if attorneys speak out they get pilloried.
LIZ JACKSON: The head of the Family Court has said he’s ashamed for Australia that we have these laws.
DENIS BURKE: Well, I don’t know what they’ve got to be ashamed of. All we’re doing is protecting law-abiding Australians, and I believe we have the support of law-abiding Australians.
LIZ JACKSON: Well, the whole—I mean, the rationale for human rights legislation and human rights laws is precisely the fact that majority rule is not always rule that respects human rights. And that’s why you have human rights conventions—because the majority doesn’t always respect human rights.
39:26:
DENIS BURKE: I reckon that anyone—anyone that could even think for a moment that the human rights record in Australia today is not something we should be proud of needs their head examined, when you compare us to other basket-case nations around the world. We should have our head up high, not lower it down where we’re contravening some so-called ‘conventions’.
39:56:
LIZ JACKSON: It’s the morning of the tabling of the Senate Committee’s report on mandatory sentencing. It concluded that the Northern Territory’s law in particular breached human rights conventions.
MAN: Hi, Senator.
LIZ JACKSON: It was clear that the Senate would, in due course, pass the so-called ‘Brown bill’, which aims to overturn the laws in both Western Australia and the Northern Territory.
40:22:
BOB BROWN: It is up to the Prime Minister to show leadership in this nation—a matter which is always the most difficult—on moral and ethical issues—
LIZ JACKSON: The critical question has always been what if anything would happen in the House of Representatives, where the Government has the numbers? Brendan Nelson is one of a small group of Coalition backbenchers who, early in the debate, publicly and passionately denounced the effect of the laws.
40:53:
BRENDAN NELSON: Issues of great moral importance and value are very hard to define, but you know them when you see them. This is one of them.
LIZ JACKSON: Nelson has a quotation from John F. Kennedy framed on his wall.
BRENDAN NELSON: “A man does what he must in spite of personal consequences, in spite of obstacles and dangers and pressures, and that is the basis of all human morality.” And all of the issues that we deal with certainly in Federal Parliament and in life itself have beneath them a moral basis—the eternal question, “What is the right thing to do?”
41:32:
LIZ JACKSON: So what IS the right thing to do?
Brendan Nelson is in a minority in the party who support the use of the Commonwealth’s power to overrule the Territory’s laws. The majority take the Prime Minister’s view that the Northern Territory’s right to make its own laws should be respected. Despite denials, the numbers were being counted in fellow Liberal Chris Pyne’s office. How many are prepared to go with you as far as saying that if the Northern Territory doesn’t change those laws, the Federal Parliament should overrule them?
42:06:
CHRIS PYNE, LIBERAL BACKBENCHER: Well, I don’t know. I haven’t had discussions with my colleagues. I haven’t been drawing up a list of anybody who feels strongly about the issue. I’d like to see the Federal Government sit down with the Northern Territory Government and perhaps talk about ways that we can help them to do something different to mandatory sentencing. But mandatory sentencing itself is what is pernicious, and that needs to be removed.
42:31:
LIZ JACKSON: When the list WAS drawn up, there were nine Coalition backbenchers lining up with Chris Pyne and Brendan Nelson—two more than was needed to combine with Labor and vote down mandatory sentencing. But the Prime Minister declined to allow his backbenchers a conscience vote, and they are not prepared to defy him.
CHRIS PYNE: The Prime Minister’s ruled out a conscience vote on this matter at this time, and while that’s the case, we are bound by party discipline to support the party’s position on mandatory sentencing.
LIZ JACKSON: Do you believe if John Howard had allowed the Coalition backbenchers a conscience vote that you would have lost your laws?
DENIS BURKE: Yes. Absolutely.
43:14:
LIZ JACKSON: Next Monday, the Independent MP Peter Andren will introduce his own private member’s bill into the House of Representatives. It’s a more modest version of the Bob Brown bill, which seeks to prevent the mandatory imprisonment of children in the Northern Territory alone. Every MP will then be faced with the decision, “What is the right thing to do?” For the bill to even be debated, seven Coalition members will have to breach party discipline and cross the floor. All the indications are that none of them are willing to do so.
44:00
PETER ANDREN, INDEPENDENT MP: I mean, the politics of this just amazes me. It seems as if the politics is overwhelming the straight-out morality, even amongst those of a mind to support the thrust of Bob Brown’s initiative.
DENIS BURKE: It’s good news for law-abiding Territorians who want to make their own laws without interference. It’s certainly good news for me, because I appreciate the support the Coalition are giving me on that principled stance, and the continued support of the Prime Minister in maintaining the fact that this is an issue for a State or Territory.
LIZ JACKSON: Do you think the issue is dead as far as Federal intervention goes?
DENIS BURKE: Well, it’ll never be dead, I suppose, whenever there are instances such as the death of Johnno that brought this furore along.
LIZ JACKSON: Are you fearful for your own children?
44:50:
HAZEL LALARA: Yes. I am. Because, um—next week court, on the 21st, my son is going to court, and he had the same offence as that boy who hung himself at Don Dale.
LIZ JACKSON: The textas and—The textas and the pencils, you know? And, ah—he—he’s going to jail for that. I know he’s going to jail for that. And he keeps on saying, if, ah—if he goes to jail, he’s going to hang himself, and I feel very frightened inside and I just want to do something about it. I’ve already told the lawyers what’s going to happen, what he’s aiming at.
45:22:
LIZ JACKSON: Hazel feels helpless. The lawyers have had her son’s case adjourned. At 17 years old, if he’s found guilty, that’s a mandatory three months minimum in an adult jail. The police may find it hard, however, to prove their case. One of the two witnesses to the crime, the young boy who hanged himself in Don Dale, will not be in court. Why does he want to do the same thing?
45:55:
HAZEL LALARA: Well, they been very close together. They grew up together. And—maybe he wants to be with him. He wants to die exactly what that boy did. That’s what he told me.
LIZ JACKSON: Hazel is hoping that maybe before her son goes to court for the textas, the pencils and the paint, that the Federal Parliament will overturn the law.
HAZEL LALARA: I’m not sure. But I wish they could change the law. Or throw the new law away. Wash it away, throw it in the ocean and make it drift away.
46:40 end