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Russell Goldflam[*]
On 14 January 2000 ‘Wurramarrba’, a 15-year-old Groote Island boy, was sentenced to a mandatory 28 days detention for a property offence. On 1 February 2000 the Senate Constitutional and Legal References Committee visited Alice Springs in the course of its Inquiry into the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999. The first of the groups to make oral submissions was Central Australian Youth Justice (CAYJ). Eight days later ‘Wurramarrba’ was found hanged in his Darwin cell, triggering national outrage and a media furore.
It appears the only available floor plan of the place is the one on the back of the $5 bill. Twenty minutes aimlessly wandering up and down endless empty corridors and we’re already feeling mullet-stunned.
It’s not just the scale of Parliament House which so belittles. There’s a bureaucratic brutality in the perspectives vanishing down these bland bare passages, sapping our hopes of making even a modest mark on this indoor city, its streets lined with closed doors, buzzing with urgent murmurings we can’t hear, posted with signs we can’t see.
We have come from Alice Springs to Canberra on behalf of our local action group, Central Australian Youth Justice, to lobby for federal intervention to chuck out the Territory’s notorious mandatory sentencing laws.
William Tilmouth is the General Manager of Tangentyere Council, which provides housing, employment, welfare and a range of other services to Alice Springs town campers, among the most harshly hit victims of mandatory sentencing. Tangentyere runs Night Patrols and a return to country bus service, which enables bush people visiting town to get back home before getting trapped in the familiar cycle of homelessness, grog, violence and the lock-up.
John Sheldon, the legal policy manager for the Northern Australian Aboriginal Legal Aid Service based in Darwin has come armed with a wealth of facts and stats, and a bundle of charge sheets from a few of his office’s mandatorily imprisoned clients: stealing a bottle of spring water; stealing two cartons of eggs; stealing four slices of bread and cordial valued at $2.50; unlawfully possessing 3 litres of petrol; unlawfully possessing six cigarette lighters with the logo ‘Gumbalanya Sports and Social Club’, and so on.
Jane Vadiveloo is a psychologist who has recently been desperately trying to stem the epidemic of youth suicide in Alice Springs, where a chronically under-resourced government welfare system has all but given up on intervening to assist the vast majority of young Aboriginal people at risk. Jane gave up working for the government in despair, but as a private practitioner she seems to work most of the time — like this week — without a fee.
As for me, I’m on leave from my legal aid job. A month ago I’d stolen and then broken a pencil in the course of giving evidence to the Senate Inquiry into mandatory sentencing, in order to demonstrate the unforgiving absurdity of these laws. If found guilty, it would be, I explained, 14 days in the clink, come what may. A week later, I was horrified to hear of the death of ‘Wurramarrba’ in detention — and what had his crime been? Stealing pencils. The horror was aggravated by anger when Chief Minister Burke reacted to the news by claiming opponents of mandatory sentencing would now, presumably in some sort of fiendish fit of glee, be rubbing their hands.
Wurramarrba’s death had sparked a media frenzy, and we soon realised that unlike so many others, this particular Senate Report was going to be taken seriously. Very seriously.
So here the four of us are, tentatively working the phones, crammed into the corner of a frenetic but friendly Senator’s office. By the end of that first day we’ve been offered support, encouragement, and, all-importantly, office facilities, by at least six politicians from various parties and factions. It dawns on us that we’re here for a whole swag of other people’s purposes too.
Our strategy is to get in to see the wet Libs, as we affectionately call them. If there are enough of them to stand up and be counted at the crunch, then the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill will squeeze through. The first problem is working out who the wet Libs are. I’ve already written to 15 MPs with putatively damp tendencies. We enlist the assistance of old Senatorial hands to map the shifting sands of the Coalition backbench, divining possible pockets of moisture here and there, adding and deleting from our list as we go.
The Senate Report is tabled. The two Liberals on the Committee (who, as it happens, are up against each other for a safe Senate ticket spot) have divided on whether to support federal intervention.
At the ensuing media conference, the heat is on Liberal Helen Coonan. Although she agrees with all her colleagues that mandatory sentencing is wrong in principle and ineffective in practice, she alone stops short of committing herself to support for intervention. Instead, she urges ‘discussion’, ‘investigation’, ‘assessment’, ‘monitoring’, ‘an audit’, and ‘consultation’ with the hitherto intransigent WA and NT governments.
The hero of the hour is Coonan’s Coalition colleague Marise Payne, who doesn’t turn up to face the press. She’s back in her office (in, we learn, some distress) after having called for federal intervention if WA and the NT can’t be persuaded to do the right thing. That evening she appears, composed and impressive, on Lateline with the NT Chief Minister. Burke’s intemperate outburst leaves no-one in any doubt that the road to persuasion is closed to all traffic. Senator Payne retires to consider her future, and to contemplate the extent to which it will be in the hands of Liberal Party President and former NT Chief Minister, Shane Stone QC, the architect of mandatory sentencing.
A couple of hours before the Report is tabled, we visit a sympathetic Senator who had been on the Inquiry. Importantly, and this becomes a constant theme of our arguments to supporters of the Bill, we explain that just as disastrous as the impact on juveniles of mandatory sentencing in the NT is its effect on young people over 17 — the ‘adults’ who are sentenced to 14 days imprisonment for their first strike, three months for their second, and a year for their third. By contrast, 15 and 16-year-olds face a minimum of 28 days detention under the provisions which apply to them. We are surprised that he doesn’t appear to be aware of this critically important issue. Hadn’t he considered the 136 written submissions and deliberated at the four days of public hearings? Hadn’t he read the 175-page Report itself, which sets out in detail all these provisions?
A lot of knowledge, we’ve discovered, is a dangerously distracting thing. If what we want to get across can’t be written on one page in very large type, it won’t get across at all. That night we set to work producing one page briefing notes in very large type.
MANDATORY SENTENCING DOES NOT REDUCE CRIME: UNLAWFUL ENTRIES IN DARWIN ROSE BY 48% LAST YEAR.
MANDATORY SENTENCING IS A WASTE OF MONEY: $53,655 TO IMPRISON AN ADULT FOR ONE YEAR.
MANDATORY SENTENCING IS HARSH: THE IMPRISONMENT RATE FOR WOMEN IN THE NT HAS INCREASED BY 552% SINCE THE INTRODUCTION OF MANDATORY SENTENCING.
The first Law of Parliament: the more information is given, the less is received
We meet Danna Vale, who’s on our wet Libs list. In her powder blue suit, her office decorated with teddy bears, she tells us she regards all the children being locked up by mandatory sentencing as her own. ‘They’re Aussie kids,’ she adds by way of explanation. This all sounds disturbingly familiar, a politician claiming to be the mother of the nation. But Danna Vale is no Pauline Hanson. She’s written to the PM about the matter, she assures us, and she feels very strongly indeed about the issue, particularly as it applies to the NT.
We return to our hotel. Unbeknown to us, Danna Vale and more than enough colleagues to cross the floor pay a midnight call at the Lodge.
We’ve arranged a media conference to respond to the Senate Report. Nervous as kids on our first day at school, we line up for the TV cameras. ‘Mandatory sentencing has got to go. Senators from all political parties and groupings have condemned mandatory sentencing, and the question now is not if these laws will be thrown out, but when,’ I announce in what I hope is a convincing voice. William talks powerfully about the link between mandatory sentencing and reconciliation. There are a couple of questions about the Liberals which I weakly fend off — after all, we don’t want to upset the very people we’re trying to persuade. Almost as soon as it’s started, it’s all over.
We’re deflated and despondent. Only two journos bothered to turn up. We had our moment to come out fighting, and we fluffed it. Who on earth is going to take any notice of us now? What we don’t realise at the time is that our little performance had been on a feed up to the press gallery, and our grabs were being edited into the days’ stories. And, what’s more, we did sound convincing.
More meetings with politicians from across the spectrum: Libs wet, damp, uncomfortably sticky and dry as dust; Labor strategists whose intense interest is no doubt whetted by the scent of Coalition blood; the ever-ebullient Bob Brown and the newly-installed independent MP Peter Andren. William invites them to visit his country. ‘But just remember’, he tells them, ‘when you step off that plane you’ll be on a 14-day suspended sentence’. I ask a key Liberal whether we’re wasting our time. He looks me in the eye and quietly says, ‘No’. Further interviews, a national phone hook-up with community campaigners, a couple of hours working on a brief to a QC who has just agreed to advise on a new angle, keep working the phones, keep an eye on the screens and an ear to the ground and your nose to the wheel, and make sure you watch your mouth.
Rumours and whispers are flying around like confetti at a wedding. Danna Vale is putting up her own Bill (true, though it never gets as far as the floor of the House). Wet Brendan has gone completely to water because he’s in line for dry Bronwyn’s job (untrue). Harradine wants an amendment which will extend the Bill’s operation to adults but confine its effect to the Territory (true to form, he is independent, informed and incisive). By the end of the day, there are at least eight separate proposals in the air. They range from let’s do nothing at all to let’s override everything now. Meanwhile, the Senate debate on the Bill drones on, everyone mouthing their Party positions. Nobody pays the slightest attention.
The second Law of Parliament: whispers speak louder than words
This is our big day. We were up till 2 am completing our Briefing Notes, but now they’re ready, facts bold as brass, figures tight as a big bass drum. We’re ready to rock and roll with a full board of wet Lib appointments. Nothing can stop us now.
No sooner have we marched into the House of Reps entrance than the mobile starts going off. ‘Good morning. I’m terribly sorry, but [insert wet Lib MP name] is unable to meet you this morning’. One by one they cancel.
The whole lot of them have been called to an unscheduled Party room meeting, to discuss mandatory sentencing. An hour and a half later it’s still going. We’ve split up and scurried off to find out what we can, from the offices of Members of both sides of the House, as well as up in the Press Gallery. At last we get a call. The meeting’s over, and one of the Libs on our list wants to talk to us. Now.
What we’re told is this. Last week the rebel Libs (it seems unjust to call these brave souls wet now) mustered their forces and got out their calculators. And lo and behold there were more than the magic six they needed to cross the floor and form a majority with Andren and the ALP. Danna Vale was to put up a Private Member’s Bill. Vale was perfect for the job. She’s a fervent Howard supporter. She’s got no leadership axes to grind, or to sharpen. And to top it all off she’s a former Children’s Court lawyer whose own son had once been given the chance he deserved by a magistrate with the discretion to do so. Not only that, but Vale, unassuming motherly appearance notwithstanding, has the ticker for the job.
The rebels waited for the Senate Report release, and, bouyed if not completely overjoyed by Marise Payne’s gutsy contribution, they called the PM away from dinner with the ATSIC Commissioners on Monday night. There followed the traditional full and frank exchange of views. By the next morning, blood brotherhood regardless, some of the rebels had caved in, under threat of losing their preselection, their seat, their government, and who knows what else. For the remainder, now just short of the number they needed, there was no point in a suicidally ineffective gesture. The rebellion was over. Or so it was assumed.
But Danna Vale just wouldn’t go away. In spite of enormous pressure from senior Liberal figures, the next morning she publicly announced her intention to table her Bill. That provoked the PM to call this morning’s Party meeting. If he hadn’t acted immediately, the rebels might have had time to muster more support. Ten MPs spoke up in favour of Vale’s Bill, but over 20 spoke against it. The Prime Minister demanded Vale and her group back off, and they did.
So that is that. The Bill is dead, and we are desolated. We’d never really expected intervention to occur without Howard’s support, but it’s heartbreaking to realise that the Vale Bill had been within a whisker of getting up. That if a free vote were allowed the Bill would now easily pass. That even without a conscience vote the rebels had been, and almost still are, numerous enough to ensure its passage.
A supportive Liberal adviser rings in tears. Vale herself struggles to contain her emotions when interviewed on the steps of the House. We too give a press conference, and this time we are firing on all cylinders. ‘Howard has put his jackboots on this morning, brought in his enforcers and his henchmen, and stomped all over his colleagues’, we thunder. I read from our charge sheets, hurling each page down as I do so to symbolise the lives so easily thrown away by what passes for the NT criminal justice system. When I cry ‘Mr Howard, what are you waiting for, a white boy to die in custody?’, the journos hiss in through their teeth. Beneath my fizzing anger I am ashamed of my crassness. Bob Brown is smarter. Extending an already fertile metaphor, he dryly, devastatingly, remarks, ‘The Prime Minister has mandatorily sentenced his colleagues to sit on their hands’. Now that’s a bite, and the press grabs it.
But today Shane claims his record test wicket, and not even Dr Bob’s bite outranks Warney. And can you believe it, today of all days the ABC is on strike.
The third Law of Parliament: No news is bad news
The Bill passes through the Senate and is immediately referred to the Other Place. We sit in the gallery to watch democracy in action. The Whips have gone round and the House is full. It’s number-crunching time. Only rarely, we’re told, does the PM bother to attend divisions. This afternoon, John Howard is here, not at his customary seat near the Dispatch Box, but down on the floor near the cross-benches. If there are going to be any dissenters, they’re going to have to walk right past him to cross. He could stick out a foot and literally trip them up. Not that there’s any need.
Beazley rises to speak to the Bill. And is instantly gagged. The House divides. The tellers count. The numbers crunch. Beazley tries again. And is gagged again. The next half hour is a bewildering and deeply demoralising spectacle. The Opposition deploys every procedural device in the book to bring on a debate, and the government implacably blocks each attempt. The Labor front bench is going apeshit, hurling unparliamentary epithets to no avail. Peter Andren manages to say ‘This is a travesty of democracy and justice’, before the Speaker turns off his microphone. Unnoticed, Bob Brown sits alone through this sorry performance in a little roped off area reserved for visiting Senators. He wears a small grim smile.
The contamination of mandatory sentencing began in the autumn of 1997 in Alice Springs when the first young man was sent away for 14 days by a reluctant magistrate compelled to do so by the Northern Territory Legislative Assembly. Now the infection has spread right through our body politic. The rot has set in. Root it out, Mr Howard, root it out. Because if you do not, your colleagues will find someone else to do the job.
Parliament’s rising. In their offices, MPs are packing their bags. A long white snake of Com cars coils up the side of the bunker, waiting to spirit the pollies back to their constituencies. In Question Time, someone has given a copy of our Briefing Notes to Beazley, and he reads their damning statistics into Hansard. Oblivious, we tramp the corridors, delivering them to every Liberal Member of Parliament.
Maybe we have made our modest mark after all.
Back in my office, a million miles from Canberra, the desk is awash with files. This week alone, four of my clients up on property offences are about to face the music. I open the first file.
CAYJ sent another delegation to the April sittings, at the end of which John Howard and Denis Burke announced a deal. The deal has meant that some young people have avoided imprisonment, but it leaves completely intact the regime as it applies to adults. As Commonwealth Attorney-General Darryl Williams has candidly admitted, it is expected to deflect some of the criticisms of the Northern Territory’s mandatory sentencing laws. A formal complaint has been made to the UN’s Human Rights Committee that the laws breach Australia’s treaty obligations. The federal government is considering pulling out of the protocol which makes us a party to the complaints process. The ALP Conference has declined to commit a federal Labor government to overturning the laws. One thing is clear. This is by no means over.
The fourth Law of Parliament: there ain’t no fat lady
The views expressed in this article are not authorised by and do not reflect those of the Northern Territory Legal Aid Commission.
[*] Russell Goldflam is an Alice Springs lawyer.
email: russell.goldflam@ntlac.nt.gov.au
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URL: http://www.austlii.edu.au/au/journals/AltLawJl/2000/88.html