The Northern Territory’s juvenile legal system continues to be “Australia’s shame”. This situation is a gross injustice and central to the kind of country Australia really is. It’s also extremely expensive, with Australians paying for all of it. The NT adult “super jail” which opened in 2014 at a cost of $1.8bn is now overcrowded. The courts in the NT legal system operate more like clearing houses than courts of law: remanding and sentencing Indigenous men, women and children at alarming rates.

From my vantage as a Territory lawyer, I saw this “system”, for want of a better word, pass its tipping point about four or five years ago.

Three years ago, an ABC Four Corners investigation led to a royal commission, which published its recommendations in November 2017. It confirmed the horrors revealed in Four Corners and more. What was happening to Aboriginal children in the care of the state was cruel, unlawful and immoral.

Remarkably, that royal commission will go down as one of the most unsuccessful and ineffective in Australian history. To date it has changed nothing and it’s clear now that it never will. People responsible for the mistreatment at the highest levels were exposed but, unlike Indigenous prisoners, there were no consequences for their actions. Most remained in the job or were moved sideways.

The royal commission discovered years of abuse and mistreatment. It also discovered that those mistreated children were represented by lawyers who knew about their conditions and abuse.

Russell Goldflam, then president of the Criminal Lawyers Association of the Northern Territory (Clant), told the commissioners in his evidence: “We all knew there were terrible things happening in the youth detention facilities. Although Four Corners hadn’t been aired, it wasn’t a secret that spithoods and chairs and all the rest of it were being used.” During the hearings the commissioners chose not to scrutinise the role of the legal profession and the judiciary on this shameful chapter in Australia’s legal history. This was an error.

The royal commission discovered the only real resistance to the oppression came from the children themselves, who did so by escaping and climbing on to roofs in protest. One night in August 2014, 14-year-old Jake Roper, after being held unlawfully in isolation for 16 days, managed to open his cell door and vent his rage and confusion in a destructive display which led to his gassing and that of five other boys locked up in their isolation cells. Jake’s actions brought an end to the notorious Behavioural Management Unit.

Since the royal commission, little change has occurred either in law, the facilities or the culture. That is astonishing and symptomatic. The broken system will remain broken. It is immutable. How can this be?

It’s a combination of reasons. Permeating this whole situation is racism: systemic, direct, indirect and historical. It’s all there. The simple fact is there is no way in the world this could happen to white Australian children. And if it had happened, and was later discovered by a royal commission, it would have been fixed and replaced within months.

It’s actually not that difficult to rectify. We’re talking about fewer than 50 children. How on earth can a government department with a minister responsible not be able to fix this? The fact is it won’t.

Another reason is the political imperative. The Territory election is next year. No political party will bring in policies that can be exploited by their opponents as being soft on crime and thereby lose votes and government. That aspect is encouraged by elements of the local media. The vice president of the Darwin Press Club and NT News court reporter Craig Dunlop gave evidence on 30 May 2019 to the parliamentary social justice scrutiny committee when asked why there were few positive stories published about Territory youth:

The reality is that media outlets publish what is most read and the stories we pursue are based on what our readerships are looking for ... It is on about day two of journalism school, where they tell you a bad news story will perform better than a good news story.”

So now we know.

Aboriginal children remain in a condemned adult jail with little to no rehabilitation or programs, sleeping in the cells of former male criminals. These children are being locked down in their cells from 6.30pm to 7.30am, a 13-hour stretch.

A further reason why there is no real prospect for change is the shocking levels of incompetence and lack of will revealed by bureaucrats, many of whom gave evidence at the royal commission.

Although the individual lawyers from the North Australian Aboriginal Justice Agency (Naaja) continue to represent their clients with skill, industry and commitment in court, in reality they are, in the main, tending to the bleeding wounds that this unsustainable legal system is dying from. Their bosses, despite everything revealed by the royal commission, appear to continue pursuing their policy of cooperation and collaboration with the government. The law reforms and about-faces made since the royal commission make it very clear to everyone that nothing of any substance is going to change. Naaja has responded to this with deafening silence. Meanwhile their clients remain locked up in the condemned male jail. Clant issues the occasional media release and interview complaining about some of the discrete incremental aspects of this crisis. The reality is that this theatre of the absurd contains them as players thus ensuring its continuation.

As Martin Luther King said: “A riot is the language of the unheard.” Achievable, transformational change is the only solution to this institutionalised torpor. This obscenity can’t continue. It’s unsustainable. The population of the Northern Territory is 25.5% Indigenous. By 2040 it’s going to be nearly 50%. The broken system must be replaced and the sooner the better. Australian taxpayers are funding this whole failure through the current federal government.

As yet that federal government has done nothing to implement the recommendations of its own royal commission.

It can and should step in and clean out these Augean stables, including the Don Dale Youth Detention Centre, and replace them with a more appropriate, effective and cheaper Aboriginal-controlled and operated juvenile justice system.

• John B Lawrence SC is a barrister in Darwin. He is a former president of the Northern Territory Bar Association, the Criminal Lawyers Association of the Northern Territory, and has been a director of the Law Council of Australia and the Australian Bar Association. Lawrence represented several clients during the royal commission, including one of the juveniles involved in the gassing incident.

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