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ELIZABETH:

From Schwartz Media. I’m Elizabeth Kulas. This is 7am.

Comments about Aboriginal people by a Northern Territory judge have led to widespread outrage. But the legal body whose clients were being addressed has not publicly lodged a complaint. Russell Marks on the silence in the Northern Territory justice system.

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Archival tape — Unidentified female reporter:

“Court transcripts record all of Judge Greg Borchers thoughts from the bench. Including this address in Tennant Creek, when dealing with an Indigenous woman who breached a domestic violence order.”

Archival tape — Greg Borchers:

“Yesterday was probably pension day, so you got your money from the government, abandoned your kids in that great indigenous fashion of abrogating your parental responsibility to another member of your family, and went off and got drunk. Got the money from the government, straight down, buy grog, pour it down your throat.”

Archival tape — Unidentified Man:

“These comments are racist because they are disparaging, discriminatory and offensive to Indigenous Australians based solely on their race... “

ELIZABETH:

So Russell, last month a number of media outlets were reporting on really some frankly...bizarre comments that had been made by a judge in the Northern Territory. What happened?

RUSSELL:

The comments were made by a local court judge called Greg Borchers. He sits mainly in Alice Springs. And really multiple derogatory comments he's been making from the bench.

ELIZABETH:

Russell Marks is a journalist and lawyer. He also writes for The Saturday Paper.

RUSSELL:

In November last year for instance he told a lawyer representing an Aboriginal woman that...and this is a quote: “One day we might read some important anthropological literature, we might learn something about what is called indigenous laissez-faire parenting in order to understand why it is that people abandon their children on such a regular basis.” This stuff's pretty difficult to repeat.

ELIZABETH:

And obviously there was public outrage after these comments were reported in some of the mainstream media.

What formal complaints were made about Judge Borchers comments at that level?

RUSSELL:

After the comments were reported in the media in July, The Criminal Lawyers Association of the Northern Territory voted, I think unanimously, to lodge a formal complaint with the chief judge of the local court, whose name is Dr. John Lowndes. But before the comments were published in the mainstream press, it's possible that no complaint was ever lodged.

ELIZABETH:

But why is it that no formal complaint was made sooner, for instance at the time when the comments were made…?

RUSSELL:

Most of the lawyers appearing when those comments were made by the judge on the bench worked for an organisation called the North Australian Aboriginal Justice Agency or NAAJA for short. I've seen emails confirming that transcripts containing some of these comments by Borchers had circulated widely within that organisation.

I want to be clear here and full disclosure, I worked for NAAJA for two years until April this year, and during my time there I did raise concerns about these kinds of issues within the organisation. And I want to be clear here as well, the process within NAAJA would be that lawyers raise these concerns and then expect that the organisation make a complaint through formal channels.

ELIZABETH:

Just to be clear is NAAJA the organisation that one would expect to lodge a complaint about conduct like this? Is that the primary organisation you'd expect to have a formal complaint made through?

RUSSELL:

That's right. For a number of reasons, one being that NAAJA was the employer of the lawyers who appeared in those cases where the judge is making these comments on the bench. And the other reason I guess is that NAAJA is the only Aboriginal controlled advocacy organisation that provides legal advocacy services, criminal defence services, to Aboriginal people in the Northern Territory.

So John Lawrence, he's a senior counsel in Darwin. He was a principal lawyer at NAAJA during the 1990’s and he's on record on a number of occasions making these sorts of observations about NAAJA.

He told the ABC in relation to the Borchers comments that the lawyers or the service that employed them in this case NAAJA should have already complained and if they hadn't - this is a quote from Lawrence: “they've abrogated their responsibilities to the community.”

ELIZABETH:

As far as you can tell has NAAJA now lodged a formal complaint?

RUSSELL:

We don't know. NAAJA has said nothing publicly. I approached NAAJA for comment and they confirmed that they wouldn't be making a comment. Other media organisations have approached NAAJA for comment and we simply don't know what NAAJA’s position is publicly on these comments by the judge.

ELIZABETH:

Beside the Criminal Lawyers Association of Northern Territory and beside NAAJA, are there other organisations that might take on the role of advocating and making formal complaints on matters like this and on Judge Borchers conduct specifically?

RUSSELL:

Not really. There was another organisation called the Central Australian Aboriginal Legal Aid Service which was based in Alice Springs. That organisation had made a number of complaints against Borchers a couple of years ago, alleging inappropriate conduct that went back a decade.

But the organisation had its funding withdrawn by the Federal Attorney-General's Department early last year and that funding was redirected to an expanded NAAJA.

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ELIZABETH:

Which in the context of this story essentially gets us back to square one, which is that NAAJA hasn't taken public action and they are the primary organisation that you would expect to advocate on behalf of Indigenous people facing any kind of criminal trial or going through any kind of legal proceedings.

RUSSELL:

That's right. And I don't think I could express it better than that.

ELIZABETH:

We’ll be right back.

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ELIZABETH:

Russell there’s been public outcry over comments made by a local court judge in the NT. But the body that would have primary responsibility for making comment, NAAJA, has been largely silent. Why aren't they speaking out on this?

RUSSELL:

Sadly many people have been asking that same question for a while now. Not just in relation to this particular set of incidents but in relation to a wide range of other issues. The ABC reported in September last year that NAAJA at that stage was defending itself then against claims that it had been silent in the face of some ongoing problems in the Northern Territory's youth detention centres, including Don Dale. And NAAJA’s CEO Priscilla Atkins reportedly told the ABC at that time that NAAJA was lobbying the NT government on a range of justice concerns.

Archival tape — Priscilla Atkins:

“In the Northern territory we have a large population of Aboriginal people. 85 per cent of people in jail are Aboriginal, over 90 per cent in youth detention are also Aboriginal. So we make up a significant proportion of Aboriginal people coming in contact with the criminal justice system, so we still have a lot of work to do.”

RUSSELL:

But since then NAAJA hasn't said anything in public about the use of tear gas by police against teenagers in Don Dale in November. And that's despite the Royal Commission calling unequivocally for the use of tear gas in youth detention centres to be banned.

Nor has NAAJA said anything in public about the N.T. Legal Aid Commission's withdrawal of services from bush courts this year, which has left some Aboriginal defendants without lawyers. Since that ABC report, NAAJA has generated only one public release which congratulated former N.T. Police Commissioner Reece Kershaw on his recent appointment to the top job at the Australian Federal Police.

And this is all going on at the same time that NAAJA appeared to publicly endorse the return of police officers, who have to be armed according to police policy, into territory schools with high proportions of Aboriginal student enrolments. And the Department of Education's review released in June, reported that NAAJA had no problems and hadn't received any complaints about the police in schools program, remarking that the implementation to date had been smooth sailing.

ELIZABETH:

Historically, how does this tally with NAAJA’s longer term role?

RUSSELL:

Historically, NAAJA and the other Aboriginal controlled legal services like it around the country, have for nearly five decades now stood up to the state very effectively in calling out its worst behaviours, while also arguing forcefully for Aboriginal self-determination. And until very recently NAAJA’s reputation was that of a very fearless and formidable advocate for rights and change on behalf of its client base.

ELIZABETH:

And so what's the sense about why that may have changed?

RUSSELL:

Since the royal commission in 2016/17 into the protection and detention of children in the Northern Territory it's become an increasingly frequent refrain around the territory that NAAJA has gone missing and that the agency has committed itself to working exclusively inside the tent of the Gunner government in the N.T.. We have to ask questions about the effectiveness of this strategy and I think those questions probably need to be asked urgently.

The Gunner government for instance rushed through retrospective laws in March which undid most of the Royal Commission inspired restrictions the government had itself legislated. NAAJA did make some public criticism of those new laws the day after they were passed, but since then there's been nothing further. NAAJA does the advocacy on part of individuals very well, it represents individuals in court extraordinarily well. It does the lobbying to government part, which is a very important part of civil society work. But the part where it engages in what you might call ‘opinion leadership’ in the community - that's where NAAJA is going missing at the moment.

ELIZABETH:

Russell what would you say about NAAJA saying, “we're working on it just because you can't see it doesn't mean it's not happening”?

RUSSELL:

I think what we can do is make some judgements about what the outcomes are. And we've seen fully armed police return to high schools. We've seen tear gas deployed in Don Dale. We've seen this instance of a judge making multiple derogatory comments about Aboriginal defendants in court without apparently being complained against by the organisation. Aboriginal people now make up three quarters of all adult defendants in the N.T.. 84 percent of the NT prison population is Indigenous. Aboriginal people are 13 times more likely than a non-Indigenous person to be in prison and it goes much further than that, Aboriginal people in the N.T. are subject to an extraordinary range of surveillance and arrest activities by police.

There's another population which is hardly subject to any and it's difficult to explain the reasons for the differences without bringing race and the histories of race relations in Australia and in the Northern Territory in particular, into the equation.

One senior Aboriginal woman, she told me “if NAAJA won't talk up who's going to talk up?” So I think the point that she's making is that it's one thing for the organisation to be working with government but there's also a public advocacy role. That the organisation should probably be taking on.

ELIZABETH:

It's an interesting strategy to be fairly quiet until they have something to say, but that creates a vacuum of confusion potentially where the public is wondering, what does the organisation stand for and what is their position on these vital issues...

RUSSELL:

I think NAAJA would absolutely disendorse these comments by the judge and feel that they are inappropriate but we haven't heard anything yet.

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When you have a situation where NAAJA’s not providing public opinion leadership, it's not influencing public debate, it's not influencing the public conversation. It's difficult to see where the pressures are that will tend toward progressive reform or evidence based reform in a place like the Northern Territory, where the pressures against that kind of reform are manifest.

I think the view held by many around the agency is that it would be better if those who depend on NAAJA to be their voice to government knew what it was saying.

ELIZABETH:

Russell, thank you so much.

RUSSELL:

Not a problem.

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ELIZABETH:

Elsewhere in the news:

After meeting yesterday, the RBA voted to hold the official interest rate for the first time in three months, leaving the official rate at 1 per cent. RBA Governor, Phillip Lowe said that while the economic outlook was reasonable, trade tensions between the US and China, and other risks to the global economy meant that further cuts were likely, especially if the board did not see a lift in wages, employment and inflation numbers.

And it's been revealed that another government agency was involved in the investigation that raided the ABC's headquarters in June. A Freedom of Information request made by Senator Rex Patrick produced documents that stated certain material could not be released, as they related to an agency which is exempt from such requests. These agencies include ASIO, the Australian Signals Directorate and the Australian Secret Intelligence Service. Senator Patrick said that he thought the other agency to be either ASIO or the ASD. The federal police said that it does not comment on in-progress investigations.

This is 7am. I’m Elizabeth Kulas. See you Thursday.

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