Opinion

Russell Marks
Rough justice in the Northern Territory

Sources close to the North Australian Aboriginal Justice Agency (NAAJA) say its lawyers were surprised to learn neither the Department of Justice nor the Territory’s chief judge had received a formal complaint from the agency about Alice Springs Local Court judge Greg Borchers. That news came via media reports last month, which publicised the bewildering comments Borchers has made in court regarding Aboriginal defendants.

Over the past year, while sitting as judge in Alice Springs, Katherine and surrounding communities, Borchers has made multiple derogatory comments from the bench. In November last year, he told a lawyer representing an Aboriginal woman that “one day we might read some … important anthropological literature, we might learn something about what’s called Indigenous laissez-faire parenting” in order “to understand why it is that people abandon their children on such a regular basis”. In March, he told an Aboriginal man that he was “just like a primitive person dragging his woman out of the cave ready to give her a further beating”. In April, he told another Aboriginal woman: “Yesterday probably was pension day, so you got your money from the government, abandoned your kids in that great Indigenous fashion of abrogating your parental responsibility to another member of your family, and went off and got drunk.”

These comments were first reported in July. At the time, a spokesperson for the Department of Justice said neither the department nor the chief judge of the Local Court had received any complaint about Judge Borchers. Darwin barrister and former NAAJA principal lawyer John Lawrence, SC, told the ABC that the lawyers – or the service that employed them, in these cases NAAJA – should have already complained. “If they haven’t,” he added, “they have abrogated their responsibilities to the community.” Six days after the initial report from Guardian Australia, the Criminal Lawyers Association of the Northern Territory (CLANT) voted to lodge a formal complaint.

The Saturday Paper has seen emails confirming that transcripts containing Borchers’ comments had circulated widely within NAAJA since at least early May 2019, including to executive managers. The emails also confirm that NAAJA lawyers expected complaints to be made. Current staff won’t comment without authorisation from their managers, but these emails have been circulated widely among current and former staff. (Disclosure: I worked for NAAJA for two years until April 2019. During my time there I raised concerns about issues within the organisation.) Approached for comment this week, NAAJA declined to make a statement.

NAAJA has faced criticism for failing to call out injustices that affect Aboriginal Territorians, including from John Lawrence. In the past year, the only media release published by the agency congratulated former NT police commissioner Reece Kershaw on his recent appointment to the top job at the Australian Federal Police. Meanwhile, NAAJA has remained silent – at least publicly – on the use of tear gas by police against teenagers in the Don Dale Youth Detention Centre in November and the NT Legal Aid Commission’s (NTLAC) February withdrawal of services from bush courts, which has left some Aboriginal defendants without lawyers.

The agency does not appear to have complained after another judge, John Neill, ejected a man in traditional ceremonial dress from a courtroom in Wurrumiyanga in the Tiwi Islands in late 2017. This same judge had earlier used the term “Abo” in a Darwin court. But Aboriginal lawyer Daniel Briggs couldn’t persuade NAAJA to complain at the time. Meanwhile, the agency has publicly endorsed the return of police officers – who must be armed, according to police policy – into Territory schools with high proportions of Aboriginal student enrolments. The Department of Education’s review, released in June, reported that NAAJA “had no problems and hadn’t received any complaints about the Police in Schools Program, remarking that the implementation to date had been ‘smooth sailing’”.

NAAJA chairs the Gunner government’s Aboriginal Justice Agreement reference group and participates in its legislative amendment advisory committee. Sources say the agency has committed itself to working exclusively “inside the tent” with government. But according to the ABC, NAAJA and other justice advocates were not consulted about controversial changes to the Youth Justice Act.

NAAJA, and other Aboriginal-controlled legal services like it, has for nearly five decades fought at the front lines of what many see as an ongoing colonial project, standing up to the state and calling out its worst behaviours while arguing forcefully for self-determination. Until recently, NAAJA’s reputation was that of a fearless and formidable advocate for rights and change. But since the royal commission in 2016-17, “NAAJA’s gone missing” has become an increasingly frequent refrain.

But NAAJA is now the only Aboriginal community-controlled organisation providing criminal advocacy services across the Territory. “If NAAJA won’t talk up,” says one senior Aboriginal woman in the NT who asked not to be named, “who’s going to talk up?” Of justice in the NT she adds: “It’s a racist system, a colonial system. It’s so obvious.”

Aboriginal people now make up three-quarters of all adult defendants in the NT, and a staggering 93.3 per cent of child defendants. Aboriginal Territorians are almost 13 times more likely than non-Aboriginal Territorians to be imprisoned, and 84 per cent of the NT prison population is Indigenous. In recent times, every child held in detention in the Territory has been Aboriginal. And there is not a single judge in the territory who identifies as Aboriginal or Torres Strait Islander.

NAAJA’s inaction on Judge Borchers stands in contrast with the approach taken by the Central Australian Aboriginal Legal Aid Service (CAALAS). The service, based in Alice Springs, had its funding withdrawn by the federal Attorney-General’s Department early last year and redirected to an expanded NAAJA. Two and three years ago, CAALAS made multiple complaints about Borchers alleging conduct going back a decade. The last of those complaints was made after Borchers had told a 13-year-old boy that he had “taken advantage” of his lack of parental supervision after his father had recently murdered his mother – an event Borchers described as “a bit of a breakdown in his family” – in order to commit property crimes in Tennant Creek. The judge had also berated a 14-year-old rape victim for her parenting failures. Senior NT Legal Aid Commission lawyer Russell Goldflam, then president of the Criminal Lawyers Association of the Northern Territory, wrote to Dr John Lowndes, the chief judge of the Local Court, describing Borchers’ in-court conduct as “often bullying, aggressive, hostile, sarcastic and disrespectful”.

In the absence of an independent judicial complaints tribunal, Dr Lowndes investigated. In January 2017, he warned Borchers that “any repetition” of similar conduct “would amount to serious misconduct”. Dr Lowndes undertook a second investigation later that year – following Borchers’ comments towards the 13-year-old boy and five other complaints – and found the judge had “engaged in inappropriate judicial conduct, which is unacceptable”. Lowndes also said some of his comments “reek of prejudgement”. Knowing that only parliament could approve a judge’s removal, CAALAS demanded a parliamentary inquiry. But NT Attorney-General Natasha Fyles declined, after her advisers concluded there was apparently no issue of Borchers’ capacity to sit, despite the fact “misbehaviour” was also grounds for termination. Fyles’s office has been approached for comment.

Dr Lowndes was left with little room to move against Borchers. Unlike other judicial officers against whom significant complaints have been made in recent decades, the judge did not resign. And preventing Borchers from presiding over cases in Tennant Creek or anywhere else would have imposed a greater strain on other judges, whose timetables were already stretched. So, Lowndes took Borchers off the Children’s Court bench in Alice Springs only. The judge continued to preside over youth justice matters in remote Aboriginal communities.

The Attorney General's department is on record as confirming that it expects legislation creating a judicial complaints commission to be introduced next year; a spokesperson for the courts has indicated that legislation may now be introduced this year.

There is a sense within Territory legal circles that it’s difficult to see how Greg Borchers could now avoid a parliamentary inquiry. NAAJA may well lobby Fyles for that outcome behind closed doors. The view held by many associated with the agency, though, is that it would be better if those who depend on NAAJA to be their voice to government knew what it was saying. 

Disclaimer: The author worked as a criminal lawyer in NAAJA’s Katherine office for nearly two years until April 2019. Except where identified and attributed, all information about NAAJA here is on the public record and any views expressed are the author’s own.

Postscript: The report that Judge John Neill ejected a person wearing traditional dress from a courtroom was originally published in the Sunday Territorian. A court spokesperson has since clarified, after listening to the audio recording of this incident, that this person was also apparently carrying a stick or spear in the court and did not respond to questions the judge asked.

This article was first published in the print edition of The Saturday Paper on Aug 3, 2019 as "Rough justice in the Northern Territory". Subscribe here.

Russell Marks
is an honorary associate at La Trobe University. He has worked as a criminal defence lawyer, a cricket coach, an academic, a policy adviser and a speechwriter.