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Howse, Chris --- "Towards a dealing just and kind: reflections on gaoling homeless people and mandatory sentencing" [2000] AltLawJl 42; (2000) 25(3) Alternative Law Journal 108

Towards a dealing just and kind

Reflections on gaoling homeless people and mandatory sentencing

Chris Howse[*]

What an awful 200 years it’s been for Aboriginal people. Of course, things have changed in the Northern Territory. Discrimination on the basis of race? Injustice? Exercise of arbitrary power? Heaven forbid! So say government ministers. So say bureaucrats, at the highest level. Nevertheless, if one were to have a peep or two under the surface, one might begin to ask oneself whether things are always what they seem …

The Darwin City Council has a by-law making it an offence to ‘sleep in a public place’ (by-law 103[1][c]). Over the last two years, hundreds of Aboriginal people have received ‘infringement notices’ from Council inspectors, fining them $50 for ‘being asleep in a public place’ contrary to the by-law. The Council says it wants to rid the parks and beaches of Darwin of itinerant people. The difficulty with using the ‘on the spot fine’ system to follow up unpaid fines is that if you don’t pay, you go to gaol. The Aboriginal Justice Advocacy Committee (AJAC) is aghast at both the Council policy, and the numbers of people gaoled under it.

There has been litigation about the by-law. AJAC has brought Supreme Court proceedings to challenge it and the Court has held that while valid, the Council has no lawful authority to prosecute the by-law by means of the ‘on the spot fine’ system. A finding that should result in far fewer black faces behind bars in the Northern Territory this year. But for a small advisory body like AJAC to take the step of suing the City Council is extraordinarily rare, if not unprecedented. There is a context to AJAC’s resorting to the Courts. The context is the peculiar political climate in the Territory and it is worth taking pains to explain it.

Here are some statements of principle bearing on the gaol rate of Aboriginal people in general, and the ‘problem’ of itinerants in particular. If you can, try and pick the odd one out …

In all the earth there is no place dedicated to solitude.

at night when the streets of your city shall be silent,

and you think them deserted,

they will throng with the returning hosts that once filled

and still love this beautiful land.

the white man will never be alone.

let him be just and deal kindly with my people,

for the dead are not altogether powerless.

Chief Seattle, 12 January 1854

Harass, harass, harass to make it so uncomfortable for them that they find it too hard to drink in the community. I reckon that if you keep shifting them around, constantly harass them so they can’t settle, they will get sick and tired of it and maybe some of them will go back to their own communities …

Lord Mayor of Darwin: NT News, 23 January 1996

Mr Stone said if Aborigines didn’t behave in an acceptable manner when in the broader community, they deserved harsh retribution and he threatened harsher measures by Territory police and community officers in coming months to deal with the drinking problem.

NT News, 13 April 1997

Commander Fields said itinerants could be prosecuted for several offences including begging or being drunk in a public place. He said: ‘We’ll keep up the push until we manage to encourage them to go back to their own communities …’

NT News, 7 March 1998

What the do-gooders keep saying to me is you should forget about them and they shouldn’t have to go to jail if they don’t pay their fines. But if we do that then people will think they don’t have to take any notice of the council by-laws.

Lord Mayor of Darwin, NT News, 21 June 1999

Have Governments failed Aboriginal people? Bodies like Amnesty International argue that they most certainly have, and cite contradictory examples like neglect being the reason for socioeconomic disadvantage, and over attention being responsible for incarceration rates. I believe that such attempts at critical comment are superficial in the extreme, and fail to do the hard analysis on precisely what has been attempted over the last three decades in particular, whether those programs have been successful in a community development sense, or whether their overall impact has been destructive of personal responsibility.

R.J. Beadman, Chief Executive Officer’s Introduction, 1997/98 Annual Report, NT Office of Aboriginal Development

Aboriginal people with drinking problems deserved to be monstered and stomped on by the community.

Chief Minister Shane Stone, NT News, 13 April 1997

How did you go?

When one is confronted with a filthy stew of words like this, the first reaction is probably to laugh. Like all statements made by people who ought to know better, it is funny to read things that are incoherent most of the time and silly. It is even some comfort that views that are uncaring and racist are expressed in such language.

But the funny side is hard to hang on to when we realise that these are expressions of policy by government spokesmen at the highest level. These statements shine a quite pitiless light on a dynamic of long standing in the Northern Territory: that people in government believe in the nature of things, they must humiliate Aboriginal people to control them.

Reflecting on the RCADC

The gaoling of Aboriginal people for non-payment of fines for an offence as trivial as ‘sleeping in public’ was among several problems for the newly established Aboriginal Justice Advocacy committee in March of last year.

It was shady if a little damp on the bank of the South Alligator River, and there was a touch of breeze and the wetlands were bright green to the horizon in the sunlight. It had been raining for three months and there is no fresher place than the Kakadu wetlands in the late summer. We were the newly formed AJAC and there were 13 of us sitting there, for our first meeting. It was late March 1999 and we were wondering what we ought to do …

Our function was to advise the government of the Northern Territory on the progress of the implementation of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody. These recommendations were handed down in 1991 and they had a simple, but eloquent aim: ‘a dramatic falling away of the over-representation of Aboriginal people at all levels of the criminal justice system’. The Royal Commission had reported with far-reaching particularity on the enigma of black people dying in the gaols of the Commonwealth.

It was not so much that more black people had died than white people in gaol. By and large, they were dying in similar proportion to the size of their respective prison populations. That black people died in larger numbers was clear. Partly because there are particular cultural troubles for Aboriginal people who are locked up. But mainly because there were far more black people in gaol than white people.

In 1991, Commissioner Elliot Johnston QC, put it like this:

… what is overwhelmingly different is the rate at which Aboriginal people come into custody, compared with the rate of the general community … Aboriginal people die in custody at a rate relative to their proportion of the whole population which is totally unacceptable and which would not be tolerated if it occurred in the non-Aboriginal community. But this occurs not because Aboriginal people are more likely to die than others in custody but because the Aboriginal population is grossly over-represented in custody. Too many Aboriginal people are in custody too often.

Reflecting about these things on the bank of the South Alligator River, we were a little bit concerned with the way things had turned out. After all, it was nine years since Commissioner Elliot made that comment. The same time had elapsed since he and his colleagues had made 339 other comments about what to do about the problem. And after all, quite some care had been taken to look into the matter. There seemed to be no reason why the recommendations were rejected out of hand.

Is custody the sanction of first resort?

For instance, take a key recommendation such as No 92: ‘Governments that have not already done so should legislate to enforce the principle that imprisonment should be utilised only as a sanction of last resort’. This recommendation could be complied with rather easily. It would involve the repeal of the Mandatory Sentencing law, which is, in fact, legislation to enforce the principle that imprisonment should be the sanction of first resort.

This good idea hadn’t seemed to have occurred to the government of the Northern Territory in nine years although the average daily prisoner population graph looked like this (at end of 1997 — it looks worse now):

Average daily prison population graph NT

Somewhere in the government, somebody was having trouble focusing. So it seemed to us anyway.

We felt a useful thing would be for the Darwin City Council to cease using the ‘on the spot fine’ system to prosecute Aboriginals merely for ‘sleeping in a public place’. The mischief here was that homeless Aboriginal people (that is most often why they are ‘sleeping in a public place’) do not receive the courtesy letter telling them what to do, and often can’t pay the fines anyway, assuming they got the letter, in the first place, or could read it, in the second place.

Our Committee is made up of 12 Aboriginal people from all over the Northern Territory. It was up to us to advise the government of the Northern Territory what, if anything was going wrong with the way Aboriginal people were being dealt with by the criminal justice system. Of course, there were two conditions precedent to our advice being useful:

• we needed to know what was happening with Aboriginal people and the criminal justice system in the bush and in the towns;

• the government of the Northern Territory and its agencies had to have a wholesome attitude to trying to do something about the problem of huge gaol rates for Aboriginals.

Speaking for ourselves, we did know what was happening.

After all, when the Royal Commission made public its recommendations, the whole idea was for the government of the Northern Territory to make some kind of commitment to follow them so we would see a decline in the numbers of black people in gaol. Instead of which, as we can see, there are quite a few people in gaol in the Northern Territory and lots more of them are black than not. The figure runs at a yearly 70% black people. Moreover, instead of a decline, there has been a steady increase.

But we didn’t just know what was happening in the abstract sense. We knew quite a bit about what was going on in the concrete world as well.

To take an example. It could be Oenpellii, Alangula, Borraloola, Port Keats, Yuendamu, Hermansburg or Ngukurr. Or any number of other places. The scene is pretty typical. Most Aboriginal people in the bush leave school at 9 or 10 years old and some of them can’t even speak English properly. A typical pre-court conference session goes a bit like this:

‘What’s your name?’
‘Ignatius Bunduck’
‘How come the coppers picked you up Ignatius?’
‘Some trouble’
‘What was that trouble? What did you do?’
‘Them boys’
‘What did you do with those boys?’
(no answer)
‘Do you understand what’s going to happen today at Court?’
‘Put me in gaol’
‘Do you know what it means to “plead not guilty”?’
‘What does that mean?’
(no answer)
‘Do you understand that you can fight this case, make those lawyers for the police try to prove that you did this trouble, and if they can’t prove you did this trouble, you can go free. Do you know what that means?’
‘Tell me in your own words what that means?’
(no answer)
‘Listen Ignatius, did you ever fly a plane for Qantas?’
‘Did you vote for Pauline Hanson at the last election?’

These are the things that hit you when you work in the courts and you go bush:

• deplorable housing conditions,

• wretched health problems,

• boredom and unemployment, in many communities not even work for the dole is available, and

• language and education troubles of the most serious kind.

Is it possible that this is an environment that is ripe for petty crime? When we see the general lack of interaction between police and people with:

• excellent housing,

• first class health care,

• exciting things to do,

• employment, and

• a first class educational background

we can at least suggest ‘yes’ to be a working hypothesis.

By dint of the wide experience of our 12 committee members of their own communities, we knew well what was going on. black people going to gaol, with the underlying causes more than apparent: poverty and ignorance.

In no case was an underlying cause more apparent than the situation of large numbers of Aboriginal people being gaoled for no reason other than inability to pay an on the spot fine for ‘sleeping in a public place’. Needless to say, these people fell into the first category mentioned above. Decidedly not the second.

Challenging by-laws

In doing something about the problem of by-law 103[1][c], we were of course, students of the attitude of the Darwin City Council and the NT government regarding its policy toward itinerant people. Some samples of official opinion appear at the start of this article. Rightly or wrongly, we felt that if we wrote to the authorities suggesting they remove the by-law we would receive short shrift.

Moreover, AJAC was worried that far from being concerned over the large numbers of Aboriginal people being locked up for ‘sleeping out’, this seemed to be precisely the intention of the Darwin City Council. The injury, loss or detriment that might flow from such a policy was never expressed to be a consideration.

There were two ways the Council could follow up the matter of an infringement notice issued by a Council Inspector for ‘sleeping in public’:

• prosecuting the person for the offence through the courts; or

• using the ‘on the spot fine’ scheme under s.60 Justices Act (NT).

The latter is a procedure of computer-generated letters and notices which replaces the court and deems decisions made to be ‘orders of the court’. These decisions turn out to be made by a clerk of courts. Not a magistrate.

The Council, it turned out, could prosecute itinerant people in the usual way. This method was quite open to it under s.194 Local Government Act (NT). It could swear out a complaint and prosecute it in a court. This would mean that an itinerant Aboriginal person charged under the by-law would receive personal notice that the matter was pending, and if found guilty, would probably receive a good behaviour bond. If fined, that person would be able to cut out the fine by doing community service (under the Sentencing Act (NT)).

But the alternative procedure opted for by the Council has a few faults. Computer-generated letters from the Council don’t reach the recipient and often can’t be read if they do. They place the onus on the recipient to halt the process, which, when it reaches its ultimate conclusion (an arrest warrant), can’t be turned around. Moreover, an on the spot fine can’t be replaced with community service.

And so … AJAC applied to the Supreme Court of the Northern Territory to issue a writ of habeas corpus for a man gaoled on five warrants of commitment for ‘sleeping in a public place’. Simultaneously, it filed an originating motion seeking to have the ‘sleeping in public’ by-law declared ultra vires. It argued further that there were difficulties in the lack of procedural fairness accorded to the plaintiff.

The writ of habeas corpus was duly issued and the man bailed. His case was heard by the Chief Justice on 24 and 25 November 1999 and was successful. The Court found the by-law to be within the power of the Darwin City Council to make but that the Darwin City Council regulation with respect to the form of the infringement notice was invalid. Moreover, the Court held that there were problems with the paperwork submitted to the Clerk of Courts by the Council in this particular case.

In the result, the Council was illegally prosecuting infringement notices against people under this law. The effect of the judgment means that the Darwin City Council cannot prosecute anyone for non-payment of any ‘on the spot fine’ until the law is changed. The law can’t be changed until the February sittings of the Territory government at the earliest.

The result will have a measurable effect on the number of black faces behind bars this year. There will be noticeably fewer of them.

AJAC is of the view that the problem of rising numbers of black faces behind bars can be solved. Moreover, it can be solved in the short term. It requires an enormous change of attitude by the Council and the government, something AJAC would work to promote, by legal proceedings if necessary. As Commissioner Elliott pointed out in 1991, the problem is that if black people are gaoled at such a high rate, some of them will die. This makes all the more apt our invoking again the injunction of Chief Seattle uttered so long ago, before white settlement ever reached the Territory: ‘Be just and deal kindly with my people, for the dead are not altogether powerless’.

Humiliation, control and mandatory sentencing: an update

While we’re on the topic of the Darwin City Council and its appalling attitude and methods, let’s take a moment to reflect on the related topic of mandatory sentencing. Why related? There is just something about the use of arbitrary power that makes us sense danger. If we feel this way about the Council, how do we feel about mandatory sentencing? The sole public spokesman in favour of the laws here in the Northern Territory has been Mr Denis Burke, the Attorney-General and Chief Minister. He says mandatory sentencing is a fine thing and supported by the public. His justification has boiled down to ‘if you do the crime, do the time’, and ‘mandatory sentencing is not discriminatory’. From what the United Nations Committee on the Elimination of Racial Discrimination says, it disagrees with Mr Burke on both points as has the Senate Committee of Enquiry on Mandatory Sentencing. So have senior lawyers and jurists around the country including five ex High Court judges. This leads us to think that at the very least, reasonable minds can differ on the topic.

I too differ from Mr Burke. I suppose I have had the dubious privilege of spending the last five years scrambling around the bush …

In doing so, I have seen the large groups of Aboriginal young people and adults behind bars in the cells at Alangula, Port Keats, Palurumpi, Oenpelli, Jabiru. Not to mention Maningrida, Ngukurr, Katherine and Darwin. I know that you can’t get rid of social and economic causes of crime by merely trying to up the ante with punishment. I know that the huge numbers of Aboriginal people in the cells occur because of neglect, apathy and contempt. I know also that in this climate, thieves are made and then punished.

The mandatory sentencing Bill became law on 8 March 1997. I spent the next two years fighting almost every mandatory sentencing offence I came across by means of pleading ‘not guilty’. It was easy to do. All I had to do was explain to my client that he would get ‘locked up’ if he pleaded guilty to the offence but the law says he can fight it if he wants to. Almost all of my clients wanted to fight it. Some of my colleagues disagreed with me. They thought this was taking a political stance, which a lawyer should not do. I replied that it was equally political for them to seek instructions from their clients to plead ‘guilty’ when those clients were going to do time unjustly. So we agreed to disagree. I may say that I won some and then lost some. However, one day, in February 1999, I was out at Oenpelli. I found that the police had caught red handed some 10 or 11 juveniles petrol sniffing. One of them had stolen some petrol and handed a centimetre or two of it in an empty drink can to the others. Being caught by the police ‘red handed’, there was no chance of beating it in the court because of lack of proof. I tried to persuade the police to withdraw the charges on the basis that to punish juveniles with mandatory gaol for what was in effect a drug problem was rather over the odds. Police refused to withdraw the charges.

I departed from legal aid not long after that. After two years, I had had enough. A year passed. While I have appeared in court again, involved in cases like the one described previously, I have not appeared in any criminal cases since. However, I watched from the outside as mandatory sentencing laws bit harder and deeper … till the first Aboriginal youngster died in custody while serving a mandatory sentence.

While national attention was focused for the first time, strongly on the Territory, people outside this place were able to see for themselves the unyielding stance taken by the politicians with issues like these. I thought that the pressure thus brought to bear would result in some meaningful changes to this law. It hasn’t. The laws are still there. A bit of tinkering with police general orders and that has been it.

But there was one good thing. One afternoon, while we were rather at a loss to get some agreement happening about what to do in the campaign, I popped out of my office, stole a pencil from a staff library nearby, replaced the pencil with one of my own, and popped down to the local police station and dobbed myself in. I had stolen a pencil and broken it. This made me liable for a mandatory sentence. I must say I did expect them to charge me. I thought it would be embarrassing for police to have to admit to having charged people like my old petrol sniffers but not to charge me.

Anyhow, they didn’t charge me. There was a little bit of media attention to this affair. I was able to get on television and explain that I defied the mandatory sentencing laws openly and publicly and that I broke this law with gladness and delight. Why? Well, the media attention faded away quickly. I don’t know that it did any good. But when I think of all of those Aboriginal bush people out there who are held up to oppression and contempt by this law, I think that breaking it myself was the nicest expression of solidarity I could think of.

[*] Chris Howse is Executive Officer, Aboriginal Justice Advocacy Committee, Northern Territory.


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