By Jane Vadiveloo.

There is a brutality and a violence in the current system of justice for Aboriginal people that is so common in the Northern Territory that it is not ‘seen’. What is accepted behaviour would not be tolerated in suburbs in Melbourne and Sydney. This is the systemic culture underlying Northern Territory justice system that requires deep reform.

The tragic death of Mr. Walker puts a harsh spotlight on the policing system in the Northern Territory. In Alice Springs, the pain of the Aboriginal community is everywhere – felt not just by Warlpiri people, but by every First Nations person and by many non-Aboriginal people. There is sadness wherever I go. Daily, people are congregating on the lawns of the Court House, surrounding his family. “This affects everyone,” was the quiet voice of a grandmother. On Thursday, people came from all Nations peacefully to share their ‘sorry’, to sit together, to wail and to grieve this deep loss. Mr. Walker’s family have displayed nothing but dignity in their grief. They request respect and peace at this time.  

Media reports, however, originally painted a disturbingly biased view of events – through the eyes and justification of the police, Government and the health services. The absence of community voices was striking. The reputation of the community was unfairly represented at the heart of these stories. On Saturday, the day this shooting occurred, the community were holding a funeral and were in mourning.  

For the past few days, I have sat in Alice Springs and listened as many Aboriginal people have spoken. A policeman has been charged with murder. Public discussion of the details of the alleged crime is necessarily limited. As we hear more from the community about the circumstances of the shooting of this young man, the more concerning this tragedy becomes. It is adequate to say that there are many decisions that were made on that day – as well as the impacts of policing policy – that require intense scrutiny.  

A full and transparent judicial inquiry is being demanded by the families. This is required for the families and it is necessary if we are to understand the wider context and achieve comprehensive reforms to prevent such tragedies in the future.  

I have worked at the interface of the criminal justice system for more than 25 years and witnessed decades of misguided and racially biased policy and practice across the justice and policing system.  

The nationwide massacres and chaining of First Nations people stopped a long time ago and impacted all families. However, this was replaced by today’s legislation and day to day application of the law that disproportionately criminalises First Nations people and continues to create untold trauma for families.  

The 1991 Royal Commission into Aboriginal Deaths in Custody found First Nations people were more likely to die in custody because they were more likely to be in custody. Their over-representation in custody was described as “grossly disproportionate”.  

In 1991 First Nations people made up 14 percent of the prisoner population. Today, First Nations people make up 27 percent of the prisoner population, despite being only two percent of the adult population. This is undeniable evidence of systemic racism. The same inaction that occurred in response to the Royal Commission in 1991 is occurring in the Northern Territory in the wake of the Royal Commission into the Detention and Protection of Children in the Northern Territory.

Frequently 100 per cent of children in jail in the NT are Aboriginal. Despite evidence of institutional abuse of children provided to the Royal Commission, Don Dale Detention Centre continues to operate, and no charges have ever been laid. The death of Mr. Walker, the experiences at Don Dale, the deaths in custody that occur across this country and the high incarceration rates of First Nations people are all preventable.    

At every step of the criminal justice system, there is over-representation of First Nations people – First Nations people stopped by police, First Nations people detained by policy, First Nations people charged by police, First Nations people found guilty by the courts, First Nations people imprisoned, First Nations people dying in custody. This affects men, women and young people.  

The only time when there is a poor representation is in the jury, when people are meant to be tried by their peers. Over 160 First Nations people have died in custody in Australia since 2008. The impact is devastating for families and individuals.  

First Nations people feel under surveillance. All families I know have loved ones who have been in jail. Families speak of police rough handling young people. It is part of life – so much so that the largest landmark in Alice Springs is now the Supreme Court, built in the middle of the town, towering over the people as a daily reminder of its dominance.  

Reform that is underpinned by genuine respect for people and their rights would lead to an effective system of justice for all in the NT. Key reforms required include:  

1. Recognition for Aboriginal justice systems  

First Nations communities have a justice system. It is a transparent system that is based on clear societal standards and responsibilities. It includes responsibility, punishment, healing and reconciliation. It results in closure and the delivery of justice. It includes a judiciary, the perpetrator and the victims and their families. It has been in practice for over 60,000 years and continues today. This system has been largely ignored, dismissed, and actively undermined by the Western system of law – in some communities, elders with authority have been publicly shamed by police, seriously impacting their ability to exercise their roles in the Aboriginal judiciary and systems of law. I believe that if either the family of Mr. Walker or the structures of Warlpiri systems of law were engaged to help the police in Yuendumu, that Mr. Walker would be alive today.    

We have been seeking reform and recognition of Aboriginal law and justice for over 20 years. Nearly 18 years ago, I was involved in navigating the process of customary law following a murder in Alice Springs. This combined both the First Nations and Western judicial processes to the satisfaction of both systems of law, preventing the potential for decades of violence from an unresolved murder. I am unaware of any such arrangement since. The review into customary law in the Northern Territory occurred in 2003 with multiple recommendations that have not been enacted, including:  

Recommendation 4: Law and justice plans.
Aboriginal communities should be assisted by government to develop law and justice plans which appropriately incorporate or recognise Aboriginal customary law as a method in dealing with issues of concern to the community or to assist or enhance the application of Australian law within the community.  

Communities have created Night Patrols (community policing) which have been incorporated across the Northern Territory with some success in building effective working relationships with police. Policing has integrated Aboriginal police officers within their ranks, improving cultural responsiveness.  

However, the covert nature of the mainstream justice system is strikingly different to the transparent systems of First Nations justice. The mainstream justice system is difficult for people to navigate or feel empowered within for a range of cultural, language and other barriers. A comprehensive cultural reform in policing and justice is needed at all levels of the system.  

2. Therapeutic Jurisprudence

Therapeutic Jurisprudence requires a serious shift in policy from simply punitive to therapeutic justice. It requires a focus on why people enter the justice system, how they enter the justice system, their experiences in the justice system and how laws and legal procedures impact the long-term wellbeing of the individual and the communities of which they are part and to which they will return. There are many complex drivers that result in incarceration. This is particularly important when working with young people. The Royal Commission into the Protection and Detention of Children in the Northern Territory highlighted the justice and welfare systems’ failure to protect children. The social, emotional and cultural wellbeing of children must be paramount in any effective system of justice.    

3. Justice Reinvestment  

In 2017, PWC reported that “Our economic modelling shows the cost to the Australian economy of Indigenous incarceration is almost $8 billion ($7.9 billion) per year and rising.”  Justice Reinvestment involves the redistribution of funds towards prevention and strengthening communities to address the underlying drivers of incarceration.   

4. Respect and experience  

The NT has a history of poorly experienced police moving through communities. This was an issue highlighted to me by a commander of police many years ago when I used to work with the police to improve the relationship with community Night Patrols. Long-term senior policing in the NT has many good people – the ‘on the ground’ police are often novices with little cultural knowledge and the bravado of ignorance. There can arise a disturbing disconnect between communities and police that can lead to mistrust.  

There are many other reforms that need to be considered for this current system of injustice to be reconstructed. We can learn from the many circumstances of positive policing in the NT and the too many examples of aggressive and damaging policing practices.  

Over many decades, and heightened now in discussions, Aboriginal people are speaking to me about feeling under threat from the police. It is not uncommon for people to discuss police beating on their doors and coming into their houses at night, shining torches into peoples’ faces while they are looking for someone. People speak about family members being thrown face first into the ground during an arrest and being racially insulted. People speak of riot police, sniffer dogs and children’s fear and terror at armed police coming through their homes. This is not the regular experience of mainstream Australians in their own homes.  

Therese Ryder continues to mourn the loss of her son who was killed when five men attacked him. She speaks with deeply hurt and anger at what she considers to be the injustice of the sentencing. In 2010, Justice Martin of the Supreme Court found that the attack was racially motivated. “It is difficult to avoid the conclusion that the nature and rapidity of the reaction, and the actions of some offenders in kicking and striking the deceased while he was on the ground were influenced, at least to some degree, by the fact that the deceased was an Aboriginal person,” he said. The white men were sentenced to four and six years jail.    

I am not First Nations, but some of my family are. A few years ago they brought a complaint against police for harassment that was upheld. One of our grandsons had been involved in repeated theft. Family reported to me that he escaped the police when they were arresting him. The response, they said, was to launch a full family assault across two communities to detain him. They explained that It lasted for weeks and included repeated household raids across different family houses in the middle of the night, sniffer dogs and verbal threats of attack. His wife was threatened with having her baby removed by welfare. The most disturbing report was that police entered a home and pointed a gun with a laser guide at a child’s head during their search. Family members report that today, children still have disturbing dreams. I have watched the police in full riot gear surround a home of an elder and grandmother with sniper guns pointed at the house. If they had knocked at the door and spoken to her, I believe she would have let them in to search her house for the person they were seeking. Children were watching.  

This year I drove past the police who had their dogs sniffing four Aboriginal men who were lined up in a row at a public park near the side of the road. I stopped to ask what was happening. The police said they were training their dogs and asked the men to participate which they did. Just earlier, the men had been sitting quietly, enjoying each others company. In July this year, one of my Arrernte sisters’ sons was killed in a car accident following a police pursuit north of Alice Springs. It is being treated as a death in custody. She is still awaiting the outcomes of the inquiry.  

The current system of justice in the NT has, in my view, a culture that fails the tests of dignity, respect, and protection. The culture is so entrenched that behavior that would be considered extreme and unacceptable in other jurisdictions is accepted in the NT. We have reports from First Nations communities across the country that there are similar significant concerns.  

Australia is contravening the Conventions of the Rights of the Child, the United Nations Declaration on the Rights of Indigenous Peoples and the International Covenant on Civil and Political Rights. These articles provide the principles upon which law, policy and practice should intersect and by doing so create the conditions upon which all persons can enjoy justice and wellbeing.    

A radical change is needed. Reform is required at the legal, policy, funding, governance and delivery levels. This radical restructure must be championed by our political leaders and led by First Nations communities.  

Leadership and generosity are the hallmarks of First Nations people. This was highlighted by Theresa Alice, a community member and grandmother who is deeply distressed and concerned. When I asked, “what do you want to see happen?” There was no anger or acrimony. Her response was:  

“I want the police to come to the table – a round table – like a campfire. We can bring all of our concerns. Out of that fire will come peace,” she said.  

“We have our law in our hands, they have their law, if we shake hands, we are putting our trust in each other’s laws– we exchange our laws with each other and learn – we can shake hands and make peace.”  

Our thoughts remain with Mr Walker’s family, other families awaiting justice and with the many people who are grieving.

Jane Vadiveloo has a Masters of Forensic Psychology and is the CEO of Children’s Ground.  

16th November 2019