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The Northern Myth

Nov 14, 2017

Law, disorder and CAALAS – the view from Yuendumu

The law is like a spider’s web, In all humility I explain: the rich man fears it not neither he that is in command. The large beetles break free and only the small insects are ensnared

This is a guest post by Frank Baarda, a long-term resident of Yuendumu, 300 kilometres north-west of Alice Springs

The acronym used by Australian Authorities to designate detected boats carrying asylum seekers bound for Australian territory, SIEV, is quite appropriate in that many of these boats do. Leak like a sieve that is.

SIEV stands for ‘suspected illegal entry vessel’ Declaring asylum seekers as ‘illegal’ is open to debate and a matter of opinion if not of political opportunism.

Everything can be made illegal by simply enacting legislation to make it so. Ethnic minorities often bear the brunt of such attacks on their freedom. The descendants of the First Australians know this all too well. They are not given the means nor opportunity to defend themselves.

Forty three years ago some young lawyers came to Yuendumu who had joined the recently formed Central Australian Aboriginal Legal Aid Service (CAALAS).

At the time an election was being held. The policeman’s wife sat on the saddle of her motor bike handing out how to vote cards. A certain part of her anatomy protruded invitingly. This was too much for a very drunk Japanangka, an affable gentle giant of a man, who couldn’t resist the temptation of grabbing her in an inappropriate manner. I’m not saying this was connected in any way, but Japanangka found himself sobering up in a Yuendumu police cell with two broken ribs to keep him company.

The young lawyers were jubilant, here was an opportunity to score a significant win over the constabulary, a veritable “gotcha” moment.

This is also when they struck one of many differences between kardiya and yapa world views, attitudes, values, priorities etc. They were (sorry for the ‘newspeak’) on a steep learning curve.

Japanangka wasn’t having any of it: “I did the wrong thing and I deserved what I got” end of story. Their “gotcha” moment proved to be ephemeral.

Some of these young lawyers went on to forge brilliant legal careers, their baptism of fire at the cross-cultural legal frontier stood them in good stead.

When Jakamarra and I went to Melbourne at the invitation of Concerned Australians, one of these lawyers “ducked in” (at Jakamarra’s request) on one of our planning sessions. In a blend of pride and nostalgia the High Court Judge re-told that when they arrived in the Northern Territory they scored some very satisfying wins over the NT Police.

NT Police had got so used to having everything in court their way that they’d become slack and complacent. A new paradigm came to apply: defendants started pleading not guilty, questions were being asked, evidence and procedures were being tested and suddenly cases were being thrown out or defendants found not guilty. Magistrates admonished and criticized members of the constabulary, who became very antagonistic towards CAALAS lawyers.

When I told the Melbourne High Court Judge that these days CAALAS lawyers were so overworked and over-run that in desperation their best advice to their clients was to plead guilty, and that these days magistrates tended to err on the side of police prosecutors, the judge was horrified. All that good hard work back then, down the tube!

In a typical situation, a defendant is summonsed to appear in court on a certain day, and ends up sitting on the tiny front lawn of the $7.6 million Yuendumu Police Complex together with the other 50 or more defendants and their families and supporters.

During the two day session a couple of CAALAS lawyers have an average of twenty minutes per defendant to receive instructions and advise their client and present their case in court, and that is if they skip lunch. Invariably if a defendant chooses to plead not guilty (possibly because he/she is not guilty) the case is adjourned.

A month later the defendant spends from an hour to two days waiting to be called, only to have the case once again adjourned, unless in the mean time the defendant has changed the plea to guilty. When the defendant is due to appear for a third time, he (these are mostly young men) may have been delayed by a flat tyre, or the car he is travelling in is pulled off the road for being un-roadworthy and/or unregistered, this then results in additional charges being laid against the defendant or his friend who offered to drive him to Yuendumu to attend court.

An alternative scenario is that the defendant considers taking part in ceremonies has a higher priority than turning up in court.

Then comes the Police’s “gotcha” moment- the defendant has a warrant out for “failing to appear” is arrested and placed in remand. He gets to rue not having taken his lawyer’s advice to plead guilty in the first place.

Sad to say our friend the Melbourne judge, will again be horrified when I tell him the latest on CAALAS.

The Attorney-General suffered a “gotcha” moment when he was addressed as Senator Brandarse.

On 30th October, Senator Brandis delivered a “gotcha” letter to CAALAS of punch to the solar plexus proportions:

The Australian Government is committed to ensuring access to justice for Indigenous Australians and improving the lives of Aboriginal and Torres Strait Islander people…”

Thus wrote the good Senator. Tell that to the countless incarcerated Indigenous Australians caught up in the justice system treadmill. Tell that to the hapless, highly committed, overworked, under-resourced, and underpaid legal workers and lawyers at CAALAS.

The good Senator added that: “… I acknowledge CAALAS’ long history in providing legal assistance services to the Aboriginal and Torres Strait Islander people of Central Australia…”

The Torres Strait Islander people of Central Australia!!!!??? ¿Que?

And then the solar plexus punch, the “gotcha”…..

I have decided to offer the North Australian Aboriginal Justice Agency Ltd. (NAAJA) grant funding under the Indigenous Legal Assistance Program …. NAAJA will be the funded provider in the southern region of the Northern Territory….

Up yours Brandarse and your cohorts.

Again I feel compelled to quote from ‘Martin Fierro’  (a 19th Century Argentine classic by Juan Fernandez):

La ley es tela de araña

en mi inorancia lo explico

no la tema el hombre rico

nunca la tema el que mande

pues la rompe el bicho grande

y solo enrieda  a los chicos

 

The law is like a spider’s web,

In all humility I explain:

the rich man fears it not

neither he that is in command.

The large beetles break free

and only the small insects are ensnared

केवल प्यार नफरत को हरा सकता है

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Frank Baarda posts the occasional—and occasionally very well informed & very funny—Musical Despatches From The Front. You can subscribe to Frank’s missives by contacting him at yuendumuminingco@bigpond.com

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