This is a guest post by John B. Lawrence SC, a Darwin-based barrister and immediate past president of the Northern Territory Bar Association. It was first published in the January 2015 edition of Land Rights News (Northern Edition), a publication of the Northern Land Council, based in Darwin.

ON 12 November 2014, the space probe Rosetta — some four billion miles from earth and 10 years after its launch — landed on its target, comet C7P, which was two-and-a-half miles wide and travelling at 40,000mph. Within minutes Rosetta began transmitting scientific data back to Earth, thus adding to Man’s knowledge and understanding of the infinite and our creation.

Another brilliant manifestation of man’s incredible genius. What can’t man achieve?

Read on.

One week later, the Australian Productivity Commission released its report, “Overcoming Indigenous Disadvantage.” The findings described Australia’s ongoing failings in dealing with the problems which continue to afflict Australia’s Aboriginal population. It revealed ongoing and regressive disasters in the area of Aboriginal well-being as reflected in health, education, employment and the justice system. In particular it reported Australia’s appalling rate of Aboriginal imprisonment.

The level of these failings needs to be put in the context of the United Nations National Rating of Countries’ wellbeing, which is measured by its Human Development Index (HDI). HDI ranks a country’s level of human development and well-being by analysis of health, education and incomes. It provides the best litmus into a country’s well-being and has been gathered and published since 1990. In 2002, Australia was third behind Norway and Sweden. Now it is even higher, sitting second behind Norway.

It is within this fact of a rich and well Australia that the Productivity Commission’s Report needs to be considered. But again, to further contextualise these latest statistics of shame, let’s go back to highlight the direction Australia continues to go with Aboriginal imprisonment.

Twenty-seven years ago, Australia launched The Royal Commission into Aboriginal Deaths in Custody. It took four years to investigate 99 Aboriginal deaths in custody across Australia. Early on, its Terms of Reference were widened to address what was immediately realised, and which founded the shameful backdrop of the deaths: the then grossly disproportionate Aboriginal imprisonment rate. So the Terms of Reference were widened to investigate all relevant aspects including history, economics, education, health and justice which eventually led to 399 Recommendations designed to address what was considered then to be the shamefully disproportionate Aboriginal imprisonment rate.

Their purpose was to halt that disproportion and reduce it. That was in 1991.

The disgraceful statistics since then disturbingly illuminate just how shameful the position is today.

In 1991, as now, Aboriginal people constituted just under 3 per cent of the Australian population.

In the Northern Territory, as now, Aboriginal people made up about 30% of the NT’s population. Nationally, in 1991 the figures concerning Aboriginal imprisonment were:

• 14 per cent of the Australian prison population was Aboriginal.

• 69 per cent of the NT prison population was Aboriginal.

In Australia 2014-15, well after the implementation of all 399 Recommendations by all States and Territory governments, the national figures on Aboriginal imprisonment are now:

• 28 per cent of Australia’s prison population is Aboriginal (doubled).

• In the NT, 86 per cent of the prison population is Aboriginal.

The figures for Aboriginal women and juveniles are even more regressive:

• In the NT, between 2002 and 2012, Aboriginal women’s imprisonment has increased by 72 per cent.

• 97 per cent of Juveniles presently jailed in the NT are Aboriginal.

The NT imprisonment statistics are staggering and beggar belief; in the past 10 years those numbers have increased by 70 per cent.

The NT per capita adult imprisonment rate is 4 to 5 times higher than any other State or Territory. Its imprisonment rate for juveniles is 6 times higher than any other State or Territory.

Remember, 86 per cent of adult and 97 per cent of juveniles jailed in the NT are Aboriginal.

This is all about Aboriginal people. These figures bear analysis and comparison internationally and interstate.

They are calculated per capita, i.e. 1 person in gaol per 100,000 of subject countries’ populations. The country with the highest imprisonment rate in the world is the ‘land of the free’, the USA. Its per capita rate is 714 per 100,000; second is Russia with 532; then Cuba, 510 (International Centre for Prison Studies: 1 June 2014). Compared with these international figures, Australia’s national adult imprisonment rate is 187 (28 per cent being Aboriginal).

Of interest in the comparison is New Zealand (161), England (148), Scotland (132), Canada (118), and Holland (82). The NT per capita imprisonment rate is 843. This jurisdiction gaols more people per capita than any country in the world.

And again, this is the point: 86 per cent of that imprisonment rate is Aboriginal (All Australian prison figures from ABS quarterly, ending September 2014). The next highest rate is Western Australia at 255.

These statistics are real and they confirm what is clearly a national crisis and disgrace. They can’t be published enough and need to be broadcast and emblazoned across Australia. They are a continuum and are now regressing at an ever increasing pace.

No one needs to be a statistician to see the projection as to where this is going and what the end game is. This disastrous situation was confirmed and amplified by the 2014 Productivity Commission Report which informed Australians that nationally, Aboriginal juveniles are imprisoned at 24 times the rate of non-Aboriginal juveniles. Further, there had been a 74 per cent increase in the national imprisonment rate of Aboriginal women since 2000.

The Report also recorded that one in four deaths in custody was an Aboriginal person, compared with one in seven at the time of the 1991 Royal Commission.

The reality of life in the Northern Territory is that, along with cyclones and crocodiles, Aboriginal men, women and children behind bars are the real and true life symbol of this part of Australia. This is where we continue to regress, rapidly. And this horror doesn’t come cheap.

Gulag NT spends more money per capita on Police and Corrections than any other Australian jurisdiction. It costs $100,000 per year to house each adult prisoner, and $200,000 for each juvenile. The present CLP Government has just opened its new Superjail (originally commissioned by the previous Labor Government) at a cost of $1 billion-plus.

The Attorney-General has said it will ultimately cost the taxpayer $1.8B and take 30 years to pay off. It is the largest-ever NT Government outlay for a capital works project. Meanwhile, the present Government regularly makes significant cuts to education and health services.

The Superjail is built to hold 1100 prisoners and is already close to full, so it won’t be long until another will be required.

This NT Government has recently decided that rather than spend $4 million dollars to upgrade the purpose built juvenile detention facility at Don Dale, it would bulldoze it and place the children into the old, consigned for-demolition, Berrimah Prison. So while the NT Government is spending more than $1B on the adult Superjail, it chooses not to upgrade the appropriate juvenile facility at a relatively small price. Rather, it chooses to herd our NT Aboriginal juveniles into a revamped Berrimah.

The detention of boys and girls within the patched up, derelict adult male jail is the plan, which also includes putting female juveniles in what was the former maximum security and punishment section, B Block. What is clear from this history and our chronic present situation is that politicians do not have the leadership, integrity, vision nor political will to deal with this difficult and tragic crisis. They are responsible for this situation.

They have failed and continue to fail. Of course, the question to be asked is, how can Australia, sitting up there at the top of the United Nations HDI tables on well-being and wealth, allow this situation to occur? Why does Australia continue to fail at such gross levels?

As a criminal lawyer working in the NT for over 25 years I have watched and been directly involved in this regression. One reason is that over the past 20 years, all Australian governments, pursuant to vote-winning ‘tough on crime’ populism, have legislated to change their criminal justice systems in order to obtain more criminal convictions and resultant prison sentences. Consequently, as intended, more people have been found guilty by our courts and more people have been sentenced to jail, and for longer periods.

This increase in imprisonment has cost the community a fortune without a reductive effect on crime levels. In fact in the same period, serious crime levels, namely assaults and sexual assaults, have increased. This punitive increase in imprisonment has predictably impacted on Aboriginal men, women and children more than any other sector of the community. This obvious consequence was known to all politicians who brought in these changes to our criminal justice systems.

Politicians will argue they are merely following the will of the people and protecting the victims of crime. But surely pandering to this will is shallow and ultimately self-defeating. We’ve got nowhere, the cost has been exorbitant and the situation continues in rapid decline.

Again how does this happen? Australia’s recent Man Booker Prize Winner, Richard Flanagan, has observed concerning the corrosion of Australian society in the past 20 years: “We have agreed with too much that was wrong for too long.” Consistent with that, he further observes: “The idea now is that many things in Australia are better left unsaid”. This issue can’t be one of those “things.”

Complacency and indifference have been the Australian disease and condition which has led to a significant drop in the country’s general and civil standards and its international reputation. Complacency, indifference, acquiescence easily become complicity and collaboration. When these figures on Aboriginal incarceration are fully outlined and explained to most Australians, they invariably agree that it should not be so and ask, “What’s the solution, the bullet, silver or otherwise, that can erase this stain?”

Others, and they are a growing number, say that we have tried everything, and spent even more, and that it just can’t be otherwise.

It is the writer’s view that this regressive disaster has to and can be stopped and then reversed. However it can only happen if the reality (namely these figures) describing contemporary Aboriginal Australia are put out to all and sundry for consideration, digestion and discussion.

Over the years I have worked with the Aboriginal Elder, the Reverend Dr Djiniyini Gondarra from Elcho Island, who continually makes the point that it can be fixed only by changing the hearts and minds of the Australian people. That can be done only by continually reminding Australians and Territorians that this is our situation.

The most powerful human rights movement in history was the campaign against slavery fought by Lord Wilberforce in 18th Century England. After unsuccessfully campaigning and lobbying Members of Parliament for years, he changed strategy and took his anti-slavery campaign to the men and women of England, by informing them, loudly and regularly with written propaganda and by countless meetings and gatherings, of the graphic details of what slavery actually entailed. In meetings and gatherings with literature and pamphlets he displayed what a slave galley was actually like. He had drawings of them posted on the walls of pubs, in trade union halls and gathering places, which showed the galley as a cramped death trap with African men, women and children stacked inside.

He also informed them as to how many of the men, women and children died in transit and then how they were treated as slaves — fellow men, women and children. He would show the people graphic items like shackles and thumbscrews to inform them as to the actual ugly reality. Having learnt those facts they considered it, acknowledged its wrong and took action to end it. They boycotted sugar entering the ports of England and more effectively they pressured their MPs into at last voting down slavery.

And so the Abolition of the Slavery Trade Act was eventually passed in 1807.

The facts about Aboriginal imprisonment need to be known by all. Only then is there a prospect that the community will seek this oil tanker of a disaster to be stopped and turned around.

Only with that will, can the situation be reversed.

It is relevant to remember the gruesome conflict between the IRA and the British Government in the 1970s, ‘80s and ‘90s, known as “The Troubles.” It was bloody, and real terrorism reigned. It was then considered an unsolvable problem; an historical given with no workable solution. However, in 1998, after years of dedicated endeavour and goodwill, there emerged “the Accord,” which to most intents and purposes ended “The Troubles,” and that particular political nightmare.

Ultimately, history will judge First-World Australia as to how it fared in dealing with its Aboriginal inhabitants. It will inevitably do so by comparing it with other First World countries which faced the same challenge — like Canada, New Zealand and some South American countries.

Where will Australia sit compared with others in that comparative table?

It won’t be up the top with its Human Development Index rating.

Meanwhile, Rosetta continues to sit astride comet C7P, informing scientists back on Earth as it goes around the sun in 2015.

Will the Australian Aboriginal imprisonment rate be higher or lower once it has successfully completed its remarkable mission in 2016?

Everyone knows the answer to that question.


PHOTO: PRISONER PARADE – The Northern Territory’s been locking up Aboriginal people for a long time — Mounted Constable William Charles Miller with prisoners in chains, Pine Creek, 1 January 1910.

Photograph copyright: NT LIBRARY- from the David R Miller Collection