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Of the two stories being told about youth crime in the Northern Territory, only one is supported by evidence. Increasingly, that’s not the story its government prefers. By Russell Marks.

Stricter bail for NT youth

The deputy chief minister of the Northern Territory, Nicole Manison.
Credit: AAP / Aaron Bunch

Sitting late on May 11, the Northern Territory Labor government rushed through amendments that will make it much harder for teenagers charged with crimes to be released on bail. Michael Gunner’s government has since confirmed that it is spending millions to expand the capacity of the existing Don Dale Youth Detention Centre in Darwin, in anticipation that the new laws will overwhelm the centre’s capacity before its replacement – being built next to the adult prison – is finished. Almost every child in custody in the Territory is Aboriginal. Just three-and-a-half years since the Royal Commission into the Protection and Detention of Children in the Northern Territory recommended Don Dale close immediately, many are asking: How did it come to this?

Three months earlier, in February, Deputy Chief Minister Nicole Manison rejected the need for stronger laws to target teenagers. “Bail is not our focus,” she told the ABC. “That’s not where we’re at.”

But the government was feeling the heat. Labor’s majority had been slashed to two seats at the August 2020 election, and it had lost one of its stars – social worker Dale Wakefield, who’d taken the seat held by outgoing Country Liberal Party chief minister Adam Giles at the previous election. That seat was Alice Springs, and it was hardly a surprise Labor lost it again. The town’s residents are convinced they’re in the middle of an unrelenting spate of criminal offences, for which children are primarily blamed. The statistics tend to back up this claim, even if crime in other parts of the Territory is trending down.

In mid-March this year, Channel Nine’s A Current Affair aired a story depicting Alice Springs as being in the grip of a youth crime wave. Country Liberal Party (CLP) leader Lia Finocchiaro threatened to introduce her own bill to stop children getting bail. And that was all it took for Territory Labor to change its position.

Critics are calling the new laws a knee-jerk reaction to the ACA report. A week after the story aired, Gunner announced measures that went further than those the CLP had proposed – including “automatic” bail revocation for children who breach their curfews or who tamper with their electronic monitoring bracelets. Gunner promised “tougher than ever consequences” for kids who breached their bail conditions.

Curfew breaches are among what the new laws call “serious breaches of bail”, which now make it very difficult for a young person to be granted bail again, unless they go into “supported bail accommodation” or wear an electronic monitor. In practice, that will mean many kids who breach their bail conditions can’t be re-bailed back to their communities.

Officially, Gunner’s cabinet is in solidarity over the bail crackdown. But sources close to its Indigenous members say they were blindsided. The changes “came out of nowhere”, one source told The Saturday Paper. Privately and anonymously, people inside Labor acknowledge the bail laws are inconsistent with recommendations from the royal commission that followed public outrage over conditions at Don Dale.

Territory Labor’s Aboriginal members – those not in parliament – urged a rethink, as did federal senator Malarndirri McCarthy. The Youth Justice Legislation Amendment Bill was introduced on May 5 by Deputy Chief Minister Manison. Tellingly, it was not introduced by Kate Worden, the minister responsible. The acting children’s commissioner, Sally Sievers, says Worden was unable to give her any details about the bill before it was introduced. Sievers tried repeatedly to meet with Gunner or Manison, without success.

Having abandoned cross-party legislation scrutiny committees last October, the Gunner government pushed the mandatory bail revocation bill to a vote within a week of its introduction. That was despite a number of flaws identified by critics, including one that might have meant the law was unconstitutional. There have been no lawyers in Territory Labor’s caucus since it voted to exclude Jeff Collins, a former Law Society NT treasurer, in December 2018. A source told The Saturday Paper there was “a lot of work” done in some ministers’ offices “to roll back what was being proposed”. A last-minute amendment was rushed into parliament on the bill’s final day of debate. The speed contrasts with the continuing wait for a bill that would abolish mandatory sentencing, promised by Labor before the August 2016 election. Or for an Aboriginal Justice Agreement (AJA).

Three decades after they were recommended by the Royal Commission into Aboriginal Deaths in Custody, the Territory remains the only Australian jurisdiction that has never had such an agreement, despite the fact that Aboriginal people constitute the greatest proportion of any state or territory’s population. Tremendous work has been done in recent years – including about 160 community consultations – to forge one. Gunner’s government says it’s committed, but it’s difficult to square that with the bail laws. Last month’s budget found no money for the AJA.

On Monday, June 21, estimates heard that since the new bail laws came into effect on May 14 this year, 44 children have been arrested under the new “serious breach of bail” category, including 14 for simply breaching a curfew or a condition associated with a monitoring device.

The government disputes the contention that it’s retreating from the recommendations of the Don Dale royal commission. On the one hand, there are clear efforts to improve the Territory’s youth justice system, albeit from an abysmally low base. Ministers repeat the improvements: youth outreach officers, new bail accommodation options, detention centre reforms, a heavily marketed “Back on Track” program, more diversion, more early intervention.

But in March 2019, the government reversed its own year-old restrictions on the force that workers can use against teenagers in custody. It has perpetually delayed raising the age of criminal responsibility from 10 to 12 years. It returned police officers – some of them armed – to schools with high proportions of Aboriginal students. Tear gas, which the commissioners recommended be “absolutely prohibited”, is still authorised for use inside youth detention centres.

People who work within the new systems, or who have experience of them, tell the same story: planning has been poor, good staff don’t stay, the necessary resources just aren’t there. “They’re flying the plane while they’re still trying to figure out how to build it,” one youth justice worker told me in April. The executive branch is notoriously inexperienced. The attorney-general, Selena Uibo, is just 36, and is not legally trained. Nor was her predecessor. “Senior” ministerial advisers are in their 20s. Much of the bureaucracy is similarly young, or resistant to change.

The dominant narrative about youth crime in the Territory is the populist one, propagated by business groups, the Northern Territory Police Association, the CLP and the NT News. It ignores the royal commission entirely and says that kids commit crimes because the consequences when they do aren’t tough enough.

This line has overwhelmed evidence-based reform efforts in other Labor-governed states, including Victoria and Queensland. In Melbourne, it was a Herald Sun-driven panic about the so-called “Apex Gang” and a predicted riot in the Parkville Youth Justice Centre in late 2016 that led Daniel Andrews’ government to change direction. In April this year, Annastacia Palaszczuk’s Queensland administration passed its own laws that made it more difficult for young offenders to get bail. Entrenched in governments’ thinking about youth crime is now the idea that small groups of “hardcore recidivists”, as Queensland’s assistant police commissioner, Cheryl Scanlon, put it, are responsible for the bulk of youth offending, and so need to be “constrained differently”. The same argument has been put in the Territory.

Those who know the realities on the ground say the populist line is convenient for governments, because it shifts responsibility for youth offending back onto young people and their families. One lawyer, who could not be identified for fear it would identify his client, tells me about a young man who breached his bail conditions because he used marijuana at one of the “supported bail accommodations” the government points to as evidence that it remains committed to reform. “My client was literally begging for something to do,” the lawyer says, “but even though [the accommodation’s] funding agreement explicitly required it to run daily activities, my client was sitting around all day every day, bored out of his mind.”

Another lawyer talks of police conducting what they call “bail checks” at kids’ houses multiple times a night in Tennant Creek. “Cops were thumping on the door at midnight, 2am, 4am, waking up the whole household and half the community,” this lawyer says. For years, lawyers have tried to have judges focus on the need to keep a child off the streets, rather than in one particular house. But prosecutors oppose those submissions, and courts explicitly authorise police officers to conduct overnight curfew checks. When they find a kid staying at an aunty’s house instead of grandma’s, they arrest him for breach of curfew.

The lone voice against the youth bail bill on the assembly floor was that of Yingiya Guyula, a Yolngu man and independent MLA. As he was speaking, two young Larrakia women, Mililma May and Sharna Alley, stood silently in the public gallery, their fists raised in a Black Power salute. Labor’s speaker, Ngaree Ah Kit, stopped Guyula’s speech and directed security guards to clear the gallery. May and Alley continued their silent protest and the debate resumed. Kezia Purick, an independent and former chief executive of the NT Minerals Council, suggested the Larrakia women learn some history. “Your salute is not even the proper salute for Black Power,” she chided.

For their peaceful protest, May and Alley were later arrested and charged under the obscure Legislative Assembly (Security) Act. Their charges remain before the courts.

This article was first published in the print edition of The Saturday Paper on Jun 26, 2021 as "NT cracks down on kids".

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Russell Marks is an honorary associate at La Trobe University.