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HomeIssue 6Youth detention Royal Commission 'compromised'

Youth detention Royal Commission 'compromised'

p2344 Brian Martin 1By ERWIN CHLANDA
Peak Aboriginal organisations say the appointment of former NT Chief Justice Brian Martin (pictured) as the Royal Commissioner to investigate youth detention in the NT “does not satisfy any threshold of independence.
“Only a few weeks ago he delivered to the NT Government a report about the establishment of a regime to investigate corruption, at the instigation of the now disgraced and former NT Corrections Minister, John Elferink,” says Olga Havnen, the Deputy Chair of the Aboriginal Medical Services Alliance NT (AMSANT).
She says: “He sat at the apex of the NT’s justice system.  He presided over all judicial officers who sentenced young Aboriginal offenders to detention, and he knew them all; he himself sentenced juveniles to detention.
“Worse, although Mr Martin retired as NT Chief Justice in 2010, he was later that same year appointed as an additional judge of the Supreme Court of the Northern Territory and he continues to hold that appointment.”
Ms Havnen’s statement is part of a media release late yesterday from the Northern and Central Land Councils and AMSANT whose Chief Executive John Paterson said on behalf of the three organisations: “We are hurt and furious because, yet again, we have been ignored – this time on the most important matter of the safety of our children.
“We are also deeply disturbed that NT Chief Minister Adam Giles was party to developing the terms of reference and selecting the Royal Commissioner.”
Mr Martin was not available for comment, but a spokesperson for him said “I am sure he will be considerate” of the request.
Mr Patterson says the “Royal Commission is compromised from the start”.
He says organisations calling for an “independent” expert heading up the enquiry included the Central Australian Aboriginal Legal Aid Service and North Australian Aboriginal Justice Agency “which are both unable to comment … because they will likely be representing parties before the Commission”.
Says Ms Havnen: “There are many other eminent former judges around the country who would qualify as truly independent, but the Prime Minister clearly did not canvas that field.
“Although Mr Martin retired as NT Chief Justice in 2010, he was later that same year appointed as an additional judge of the Supreme Court of the Northern Territory and he continues to hold that appointment.
“We are further upset that the terms of reference are not cast widely enough to include the wider NT youth justice system, rather than a narrow focus on youth detention, and that they do not specify an examination of the huge over-representation of Aboriginal youth in detention.
“Not only does the Northern Territory justice system lock up more juveniles than any other jurisdiction, more than 90 per cent of those detainees are Aboriginal. ”
Meanwhile the Australian Lawyers Alliance (ALA) says the Turnbull Government has missed a once in a generation opportunity to deal with the inherent racism of the Australian legal system towards Indigenous people.
The alliance questioned whether Mr Martin was the right choice as Royal Commissioner “given the high rates of incarceration of youth and adults, particularly Indigenous people, in which the judiciary has played a part”.
ALA spokesman Greg Barns said that Prime Minister Malcolm Turnbull should have heeded widespread community opposition to his view that a royal commission into NT youth detention ought to be narrowly focused: “The revelations of what is happening in the NT should have resulted in a broad Royal Commission.
“The risk now is that mistreatment and abuse in other parts of Australia will continue, out of sight and out of mind of the narrow Royal Commission in the NT.”


  1. The Prime Minister said the Royal Commission has been asked to examine:
    • failings in the child protection and youth detention systems of the Government of the Northern Territory;
    • the effectiveness of any oversight mechanisms and safeguards to ensure the treatment of detainees was appropriate;
    • cultural and management issues that may exist within the Northern Territory youth detention system;
    • whether the treatment of detainees breached laws or the detainees’ human rights; and
    • whether more should have been done by the Government of the Northern Territory to take appropriate measures to prevent the re-occurrence of inappropriate treatment.

  2. It seems that from the start things will not produce the required effect, that is a thorough investigation of the judicial system, and its systemic failures, over 25 years.
    When we talk about “mandatory incarceration,” or over-representation of Aboriginal people in goals (Darwin or Alice), whether children or adults, a Royal Commission ought to go deep enough to be able to show action to be taken and remedy.
    With all due respect to former Chief Justice Brian Martin, independence of view over the present situation should go be sitting outside the Territory and certainly outside Chief Minister Adam Giles!

  3. In the wake of the revelations at Don Dale Youth Detention Centre, Australian Lawyers Alliance representative Greg Barns makes a startling claim that there is a culture of inherent racism in the Australian legal system towards Aboriginal and Torres Strait Islander people.
    This argument of a racist legal system in Australia is consistent with a human rights philosophy known as Critical Race Theory (CRT).
    Originating in North America with eminent Afro-American proponent Dr Don Bell, CRT proposes that all countries where there is a predominant white population is inherently racist and paternalistic in all arms of government – including the parliament and its Courts.
    The Human Rights Commission in Australia has long supported that CRT is applicable to Australian government. Now we have an eminent body of Australian lawyers making what looks to be a very similar claim.
    If the Australian legal system is, in fact, inherently racist towards Aboriginal and Torres Strait Islander people, then this claim must be investigated immediately.
    I, for one, would wish every racist lawyer to be named and shamed and disbarred from legal practice – as a matter of urgency.
    Otherwise, any Royal Commission, let alone one that investigates the Don Dale Centre, is tainted with an apprehension bias and cannot be conducted independently by the Australian justice system.
    This is now a most serious issue that should be publicly debated by all Australians who value every individual as an equal under our Constitution.
    I would like to start the process by asking Mr Barns to clarify the ALA’s position on Critical Race Theory. Will the ALA elaborate on this in the public interest?
    I invite Mr Barns to contact me directly with a response.
    It would be an excellent first step and should be considered for input to the upcoming Royal Commission.
    [ED – We would like to publish any such response.]

  4. All levels of government are racist. Any government legislation based on a race is racist. Segregation is the product of racist laws and policy that refers to difference in race and then proceeds to set in place laws that remove the basic rights of a people who are defined by race.

  5. While Nero fiddled Rome burnt. Now Turnbull is fiddling. Thanks for this article Erwin.
    It looks like this Royal Commission is a token to shut us all up and keep international condemnation at bay.
    Martin is an inappropriate appointment as is Giles’s involvement and the absence of Aboriginal representation or involvement. A nice little junket for the boys.

  6. Perhaps arguments of “Critical Race Theory” (CRT) possess their own priority for racially appropriate results in preference to human rights or justice.
    The Australian legal system since settlement attempted to remain racially neutral, while often dependent on juries to achieve same, providing areas where early colonial governors felt they experienced some difficulty.
    Few systems are, or remain, perfect.

  7. “… CRT proposes that all countries where there is a predominant white population is inherently racist …”
    Why the limit to predominant white populations, and why only countries? How can that statement not itself be considered racist?
    Perhaps a fairer and more accurate statement would say that any racially predominant population is inherently racist.

  8. There are two types of racist laws and/or policies on display in the NT, those racist by design and those racist in implementation. The CLP can be proud of introducing both types.
    If we look at racist by design: The CLP is responsible for the Indigenous Employment Provisional Sum and Remote Contracting Policies.
    What these policies seek to do is to make it uneconomical to employ anyone who does not “identify as Aboriginal or Torres Strait Islander”.
    The Giles led minority CLP government achieves this by reimbursing the wages of anyone who identifies as being indigenous (even if they are FIFO) – thereby making all non indigenous people compete against a free work force. These policies are further compounded by demonstrably disregarding procurement policies and awarding NT government tenders to untested and inexperienced businesses who have some type of far flung claim of having an indigenous ownership structure.
    Then there is racist by implementation. I am sure we have all been greeted by a smile by the police at the bottlo only to see the Aboriginal person after us being stopped for a interrogation session.
    On the one occasion I was asked where I intended to drink the alcohol I was about to purchase (well done to that Kiwi copper for applying the absurd laws equally) I flat out denied to reveal that.
    I would argue that all day long, as I believe it is my right, my civil liberty, to purchase a legal product without revealing my future movements with the police.
    Apparently I was too much hard work and had too great an understanding of the legislation that the police officer gave up.
    Aboriginal people however rarely have the same success and are unaware for instance that, even if they live in a declared area / house / town camp, they could simply say they intend to have a drink at the Telegraph Station.
    I believe laws and policies should not just be judged on their results, but also by their principle. What good is law and order if you’re living down the barrel of a gun? This is Australia, not China.
    So Janet, it is surprising that Steve Brown would run for a Government that has such racism embedded in it. Steve did for a while stand up against my first example of racist procurement policies, but, rather out of character, he has since gone eerily silent on it.
    Given that Steve Brown’s second favorite word is “egalitarian” it strikes me as strange that he is running for the dead and buried CLP.

  9. The allegation that Australian governance is inherently racist in all arms of government (Labor and Liberal) is now a gauntlet thrown down by Greg Barns and his Australian Lawyers Alliance.
    It is a big call. But the bigger question is – does the ALA have the bottle to run this as a serious argument in a public forum where the ALA will be required to back it up?
    I cordially invite Barnsy and his ALA associates to call a few public meetings around the country to test it out by robust debate.
    I am sure that a significant cross section of Australia’s multicultural community would attend. And I would guarantee that some robust points of view aould be expressed.
    How about it, Barnsy? I’m game to be there if you are!

  10. Re: Joel Olzomer Posted July 30, 2016 at 11:51 am
    Joe Olzomer incorrectly states the CLP can be proud of introducing “two types of racist laws and/or policies on display in the NT, those racist by design and those racist in implementation”.
    Most racist administrative actions remain legally defended using claims of lawfulness with designs, implementation and justifications from the Commonwealth.
    The NT government(s) more like is a dangling puppet on Commonwealth strings.
    In December 1907, Prime Minister Alfred Deakin and South Australian Premier Tom Price executed a formal agreement for the Northern Territory’s transfer to the Commonwealth, yet it was not until 1 January 1911 that the Northern Territory became responsibility of the Commonwealth.
    Since then most racist administrative activities occurring in NT were undertaken, promoted, supported, and defended by the Commonwealth, including Commonwealth’s ongoing racist separatist segregationist orders upon Australian families.

  11. @ Joel: Unless there’s a position running for a dictator I like everybody else have to work with other like minded people to achieve any of the goals I think worth achieving.
    That means choosing a vehicle or a side that I think I can work with, quite clearly as in any group decision I won’t necessarily get what I want all of the time.
    I haven’t gone quiet on anything, Joel, just working with the system. Eventually I hope to see the contracting policy altered and any reference or discrimination of a racial nature taken out.
    Apparently to you the answer is kicking the CLP out and installing Labor. Big fail there, Joel, Labor has not only proposed keeping the existing policy but are in fact extending it further!
    Lashing out and kicking the Dog you know in favour of one you don’t doesn’t automatically mean progress, very often it’s a backward step!
    That’s why I’m involved and running for the CLP, because they are by far and away the better government for our Community.
    So enjoy the kicking as best you can Joel because if Labor do win pretty dam soon you are going to find out that you’ve scored an own goal.
    Were you around four years ago? I cant believe any intelligent person who lived through Labor’s last term in Alice could think of voting them back in.
    They brought our town to its knees! They were an absolute disaster! And Micheal Gunner’s lot are even worse, if that possible.

  12. The proposed Commissioner has now withdrawn, which can only be a good thing.
    There is a very strong and legitimate perception that he is too close the the NT justice system, and the CLP.
    Hopefully Turnbull will prevail on Giles to appoint someone from outside the Territory.
    Eminent Aboriginal lawyer Prof Mick Dodson from the ANU School of Law would make an ideal assistant Commissioner.
    His qualifications and experience are readily available on Wikipedia.

  13. Steve, it seems to me you have hitched your cart to a horse with no legs.
    If you are elected, then you will most likely be in Opposition. An Opposition of only a few seats is certainly less useful than a non-party bound, open to negotiation type of Independent.
    If CLP somehow manages to form Government, then the party will again be held to ransom by the dictatorial leadership of Giles and Co. He cannot be rolled unless the CLP is willing to forgo a small block of allies and lose the numbers to govern.
    This was seen when he was challenged. Though in fairness, Giles did us a favour in this instance and saved the good people of the NT from Willem.
    I am unaware of where Labor has vowed to maintain and expand the IEPS policy. I would be interested to see this. Given that the policies has had the industry up in arms, it is disappointing the Government has gone and spent close to $100,000 to review it. I don’t suspect much value can come from reviewing an ill-conceived, head in the clouds, junk of a policy. I am sure you have heard the saying about polishing a turd.
    Besides, I am confident that the very decent sitting independent, Robyn Lambley, in your seat, where I also live, will be returned. This election is the election of independents.
    This is not something I am particularly frightened of, as the current two party politics seems to be failing at all levels of late.
    Steve, you mention that it is important to negotiate and work with the party of likeminded people. I read this as “if you can’t beat them, join them”.
    The reality is, the CLP Government has lost touch with the CLP membership. The CLP minority Government no longer knows who they are, to the extent that they have even implemented policy which can only be described as extreme socialism and has lost any credentials of economic management and understanding along the way.
    The CLP party should have cut out the dead wood and endorsed fresh blood of good character. Giles in no way represents the future of the CLP. It is incredible to think that a sitting CLP Chief Minister from Alice Springs has in fact become a detriment to future party fortunes.
    Regarding my level of “madness” that a long term resident could ever vote outside of CLP, yes I was around four years ago, being of the fifth generation of my family to call the NT home.
    I have a fair understanding and investment in my community. I guess that means I have even been here substantially longer than your Chief, Adam Giles, the eastern seaboard blow in.
    There is no denying that the Labor government became stale and lost its way in its dying years under Henderson. However, the same can be said of CLP in the final years of its rule under Denis Burke.
    Looking forward to polling day – ABC election coverage will be an interesting evening in!


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