Section 2: Major themes by decade

The 1970s

Three prisons operated in the Northern Territory during this period: Fannie Bay Gaol, Alice Springs, and a minimum security ‘prison farm' at Gunn Point, built in 1973 to manage overcrowding at Fanny Bay. There were also various police holding facilities, and a juvenile detention facility, Essington House. The Berrimah facility was completed in 1979, however, it was proposed early in the 1970s.

Rates of incarceration

During the 1970s, the Northern Territory had the highest rate of imprisonment per head of population of any state or territory in the country. “For the year 1972/73, the Northern Territory total correctional system held a daily average of 266 prisoners. This represents a rate of 284.8 prisoners per 100 000 of the population, and is to be compared with the overall Australian rate of 80.8. The next highest rate in Australia for that year was 121.5 of Western Australia” (Weir 1974).

Hawkins and Misner identified the criminalization of public drunkenness as the primary reason for such high rates of incarceration, however, they pointed to a number of other factors as well, including “a general lack of social welfare services, a shortage of psychiatric facilities and staff and a lack of alternatives to imprisonment” (Hawkins and Misner 1974b:1). They also noted that the lack of a probation service meant that there were limited sentencing alternatives.

Major legislative changes

The decriminalisation of public drunkenness

In 1974, the Northern Territory became the first Australian state to decriminalise public drunkenness.

This change was in response to the recommendations of four government inquiries published between 1973 and 1974: in particular, the Hawkins and Misner reports, the Select Committee Appointed to Inquire into Prisons and Prison legislation, the Report of the Inquiry into the Northern Territory Police Force, and the Report of the Board of Inquiry appointed to inquire concerning the liquor laws of the Northern Territory.

In his submission to the Report of the Inquiry into the Northern Territory Police Force, Brigadier J.G. McKinna stated:

“The large number of arrests for drunkenness gives cause for concern and again raises the question whether drunkenness, on its own, should be considered an offence. In many cases further charges (resist, arrest, assaulting police, offensive language, etc) arise out of what originally was the arrest of a simple drunk. Had there been no arrest for drunkenness, there would not have been any other charges. A drunken person is sometimes taken into custody for his own protection and safety, but if, instead of being placed under arrest, drunks could be taken to a central point from which their friend could collect them and take them home before they became troublesome, there would be greater harmony between the public and the police; also I feel it would be a more reasonable manner in which to treat a social problem.

By far the largest proportion of those arrested for drunkenness are Aboriginals and the Department catering for their welfare might give consideration to the ways and means of having drunks taken care of before they reach the stage where police action is requested (McKinna quoted in Hawkins and Misner 1974a:4-5).

The Report of the Board of Inquiry appointed to inquire concerning the liquor laws of the Northern Territory (1973) stated:

We see a need to curb and treat the problem drinker and the alcoholic. We are of the opinion that goal is no deterrent and offers no cure for drunkenness. In our view drunkenness per se should no longer be a crime.

We recommend that the law be changed so that drunkenness per se is no longer a crime. Investigations should be carried out with a view to the establishment of Detoxification Units and Rehabilitation Centres for the treatment of persons arrested for drunkenness (Hawkins and Misner 1974a:6).

Hawkins and Misner (1973) estimated that three quarters of all prisoners in the Northern Territory were in prison for public drunkenness, and argued these numbers were taxing both the prisons and the criminal justice system more generally. In the year ending 30 June 1972, the courts dealt with a total of 6360 cases of drunkenness, and 563 of the defendants were imprisoned. The authors suggested that this figure would escalate were alcohol-related crime included in the analysis (Hawkins and Misner 1973:1-2).

The decriminalization of public drunkenness resulted in an immediate drop in prison numbers (Weir 1974). At the same time that legislation criminalising public drunkenness was abolished, a new section was inserted into the Summary Offences Ordinance that allowed police the power to apprehend and detain persons who were deemed incapable of caring for themselves for a period of six hours, or until they were able to look after themselves (Bonnie 1996).  Subsequently, Cornish (1988) argued that these reforms have created an “unsupervised system of police detention”.

These detention powers were the sole legislative remedy to public drunkenness, since the Northern Territory Government did not implement Hawkin's recommendation for the establishment of facilities to provide accommodation and welfare support to people found drunk on the streets. Milford (1991) reported that the police during the 1970s were reluctant to employ these detention powers, since they were unwilling to pick up intoxicated persons without arrest provisions.

Major policy changes

In the early 1970s, there was very limited administration and coordination of correctional services. There was no corrective services department, no provision available for parole or probation and no purpose-built facilities for remand prisoners or female prisoners. Prison numbers in the Northern Territory had increased steadily in the post-war period, placing prison facilities under increasing stress, however, there were few systems in place to develop a policy response.

The beginnings of the professionalization of corrective services staff

In 1974, Hawkins and Misner described prison staff as qualified to carry out “the functions of the existing prisons”, which are to “warehouse bodies, prevent escapes and to keep the prison as neat and clean as possible” (Hawkins and Misner 1974c:34). They documented that the requirements to become a prison guard were that applicants needed to be over five foot seven inches in height, and more then ten stone in weight. There were no requirements regarding education or previous experience, with training consisting of one month on the job training. The starting salaries were relatively low.

In 1975, the first training courses were developed jointly with the police, for one week in duration. In 1978, two training courses were offered to correctional personal, with one course lasting a month.

Attempts to establish a parole and probation service

In May 1973, the Northern Territory did not have a workable parole and probation system (Hawkins and Misner 1974c). By late 1974, a Chairman had been appointed for a Parole Board, although the process of appointing a Board was interrupted by Cyclone Tracey. By February 1976, there was still no parole Board, although a secretary had been appointed.

Major inquiries

The Hawkins reports

In 1973, the Northern Territory government requested University of Sydney criminologists Gordon Hawkins and Robert Misner to conduct a broad-ranging review of the criminal justice system, and make recommendations for change.

Later that year, Hawkins and Misner submitted a series of three reports to the Minister for the Northern Territory outlining a blueprint for reform. The authors were broadly condemnatory in their assessment of the state of the Northern Territory criminal justice system; in particular, the absence of basic administrative and managerial structures and the lack of strategic planning.

In their reports, Hawkins and Misner recommended:

  • The decriminalisation of public drunkenness: The authors estimated that 75% of all prisoners were in jail for public drunkenness, which were taxing both the prisons and the criminal justice system. In addition to calling for the decriminalisation of public drunkenness, they advocates for the establishment of a system of “detoxification centres” to care for those found drunk in public.
  • Reduction in prison numbers through decentralisation and diversionary programs: The authors recommended that petty offences be managed by local councils, and that a wide range of alternatives to imprisonment be implemented, including period detention, work release, fines, compensation, suspended sentences and attendance sentences. They also advocated that imprisonment for civil debt be abolished.
  • Changes to personnel: The authors advocated for targeted recruitment of Aboriginals for positions in the criminal justice system, and the recruitment of social workers for the prison system. They also called for the development of training programs for prisons officers, and increased wages for officers.
  • The development of mental health services: Hawkins and Misner were scathing in their review of the imprisonment of the mentally ill, who were frequently transferred to South Australia. The Mental Defectives Ordinance included incarceration provisions, and the authors advocated for the amendment of the act, specifically: the construction of a psychiatric ward in the Northern Territory so that the mentally ill had an alternative to prison, and that any committal proceedings should include legal representation and an appeals process.
  • The establishment of new juvenile justice services: Hawkins and Misner noted that there was no institution in the Northern Territory for young people aged 17-21 who have been convicted of an offence. Young people held at Fannie Bay were not permitted to socialise with older inmates, and so cannot participate in work programs, but nor were they provided with an education.
  • The establishment of basic administrative systems for the criminal justice system: Hawkins and Misner advocated for the establishment of a purpose-built remand centre, and the development of a parole and probation system, programs of rehabilitation and education for prisoners, grievance resolution procedures within prisons, and an after-care system to ease the transition of prisoners into the community.
  • The development of Aboriginal “tribal courts”: Hawkins and Misner were progressive in their approach to justice on Aboriginal land, calling for the integration of customary law into the sentencing of Aboriginal offenders, and the right of Aboriginal communities to control and direct the administration of justice within settlements and missions.
  • The establishment of a standing law reform committee.

The Select Committee appointed to Inquire into Prisons and Prison legislation (Ward Report)

The Ward Select Committee was formed in 1972 to inquire into:

  • The administration of the Prisons Ordinance and Regulations;
  • The need for amendment of legislation relating to prisons and prisoners in the Northern Territory;
  • The need for the establishment of additional prisons and corrective institutions and the estimated capital and operational costs involved; and
  • The need for the introduction of new methods of care and rehabilitation for prisoners.

In its 1974 report, the Committee acknowledged the punitive nature of prisons, whilst recommending that “to the extent that is possible, the indignities suffered by prisoners should be removed” (p 20).  The Committee recommended:

  • Action be undertaken to reduce the number of remand prisoners in Northern Territory jails
  • The decriminalisation of public drunkenness
  • The investigation of alternatives to incarceration for juvenile offenders
  • The reform of the Mental Defectives Ordinance
  • The expansion of rehabilitation options for prisoners
  • The ‘complete replacement' of Fannie Bay gaol (p 20-23)

Vulnerable populations

In the 1970s, it was common for special groups of prisoners in the Northern Territory, particularly women, juveniles, and the mentally ill, to be transferred to South Australia due to the lack of specialized facilities (O'Toole 2006).

Indigenous prisoners

Hawkins argued that the major reason that Aboriginals are over-represented in prisons during this period was because they are the most “conspicuous drunks”.

The European can drink in his home - the Aboriginal cannot if he lives on a reserve, and consequently is often arrested as he walks home. The European, if he drinks in public, usually has transportation home. The Aboriginal, if he has a ‘home', must walk there. Without going into the more fundamental question of why the Aboriginal, or the European for that matter, drinks, it can be said that a detoxification centre reduces the inherent discrimination of a system which only arrests those drunk in public. To further reduce the discrimination, Aboriginals must be given the freedom to drink on the reserves if the people of the reserves so decide. Also Aboriginals should be consulted in determining whether certain merchants should continue to hold liquor license where the merchant conducts his business in close proximity to a reserve (Hawkins and Misner 1974c:3).

Hawkins and Misner called for a “full-scale” review of policies of justice on Aboriginal settlements. “What is needed is a carefully drafted blueprint for involving Aboriginals in their own destiny (Hawkins and Misner 1974c:19-20). He called for the inquiry to develop a system of “tribal courts” that took into account traditional authority structures as well as Australia's responsibilities under the United Nations covenants on economic and political rights. His third report contains detailed proposals for this new court system (Hawkins and Misner 1974c.

Hawkins and Misner (1974c:4) identified “ a purposeful and premeditated policy of racial discrimination” against Aboriginals in the recruitment of prison officers, court clerks, policemen, social workers and related positions. He argued that Aboriginals were barred from holding meaningful positions in the criminal justice system other then “tracker or prisoner”.

Aboriginal prisoners usually outnumbered non-Aboriginal prisoners during the 1970s. Dewar (1999) suggests that authorities recognised that  Aboriginal people suffered greatly when imprisoned in isolation. The “Sydney Williams” hut at Fannie Bay had an open mesh interior, which enabled Indigenous prisoners to communicate and interact. In contrast, Alice Springs had single cell accommodation, and interaction between Indigenous prisoners was heavily restricted.

Juvenile prisoners

Until June 2000, the Northern Territory classified 17-year-olds as adults. This may need to be taken into account when examining historical data on the number of juveniles in detention in the Northern Territory (Bareja and Charlton 2003).

Treatment of juveniles offenders in NT was described as “a matter of grave concern” in the Ward report (1974):

That they should have to be sent to such prisons as those at Fannie Bay and Alice Springs because of the lack of other facilities is a public disgrace. Suitable alternatives should be provided without delay. (p 21)

Hawkins and Misner called the situation “desperate”, noting that “juveniles at Fannie Bay are in limbo. They are unable to work and unable to go to school. They are kept from older prisoners (perhaps with good reason) but the effect is a forced type of isolation” (Hawkins and Misner 1974c:5) Hawkins and Misner called for the establishment of a juvenile remand centre as a matter of “great urgency”.  (1974) They noted that teenagers as young as fourteen were being held in an adult prison for up to a week awaiting transportation to Essington House and suggested that community work represented a better alternative (Hawkins and Misner 1974c:5-6).

The mentally ill

In his review of the Mental Defectives Ordinance, Hawkins stated:

Definitely the most hideous and anachronistic piece of legislation we happened across was the existing statute in regards to the imprisonment of persons whose only ‘crime' was that of being a mental defective. The term ‘mental defective' itself is less a diagnosis then a catastrophe. Among everyone we talked to there was a general agreement that something new must be done.

It is clear that the use of the incarceration provisions of the Mental Defectives Ordinance (see s7) are used rather frequently. In the Alice Springs Gaol during the year 1971/72, 24 persons were detained under the MDO, and spent a total of 421 day in prison. In 1970/71, Alice Springs Gaol received 27 people under the Ordinance for a total of 351 days. The average period of detention in 1970/71 was 11 days but we were told of instances of incarceration of mental defectives for weeks on end.

A secure psychiatric ward must be constructed immediately to house those patients who are violent (Hawkins and Misner 1974c:7-8).

The treatment of the mentally ill in the criminal justice system is described as “probably the greatest scandal of all” by the Ward report, and a “matter of the utmost urgency”. (Ward 1974) There were few social workers in the Northern Territory during this period, and none worked as part of the corrections system. There was no psychiatric help available for inmates and only one psychiatrist in the Northern Territory at this time.

People could be incarcerated under the Mental Defectives Ordinance for up to four weeks or longer (Hawkins and Misner 1974b:6). Hawkins recommended that:

  • The MDO be amended to allow for a longer period of assessment prior to a transfer to South Australia
  • Administrative arrangements be made so that people can be transferred to psychiatric facilities rather then being held in prison
  • The MDO be amended to require legal counsel in committal proceedings and to guarantee the rights of people.
  • The MDO be reviewed as psychiatric services increase in the territory.

Female prisoners

The number of female prisoners rose throughout the 1970s, however, they remained very low compared to male rates of incarceration. Dewar (1999) describes the conditions under which female prisoners lived, which were generally considered substandard. The Weir (1974) report described the facilities for women at Fannie Bay Gaol to be comparable to an “enclosure in Zoological Gardens” (p 43).

Female prisoners were expected to wash, iron and sew during the day. Aboriginal female prisoners were required to undertake “weeding, grass cutting and light garden work”. It was common for female prisoners to be transferred interstate to South Australia, since the Northern Territory did not have adequate facilities for them.

1980s

Fannie Bay Goal was closed in 1979, and prisoners were moved to the new Berrimah facility, which had been designed for one hundred prisoners. Overcrowding was a chronic issue at Berrimah, with the maximum number of inmates revised up to 160 in 1984. Subsequently, the women's section (originally housed in the main prison building) was relocated outside the main perimeter to the former proposed Work Release Centre. The former female section in the main building had been converted for use by remandees and juveniles by 1984.

During the 1980s, there were three juvenile detention facilities in the Northern Territory:  Giles House in Alice Springs; Malak House in Darwin; and the Wilderness Work Camp at Wildman River, about 200 kilometers from Darwin.  The Work Camp was designed for juvenile detainees from remote Aboriginal communities. The focus of the Camp was on reparation through work for the Parks and Wildlife Commission of the Northern Territory, other government agencies and service clubs.

Both Giles House and Malak House could be considered as traditional detention centres. They offered secure placements to ensure community protection, enable assessments of offenders to take place, and offer a number of programs including educational, vocational, recreational and life skills.

Rates of incarceration

In 1984, when the Department of Correctional Services was first established, there were 304 prisoners in the Northern Territory. This figure gave the Northern Territory an imprisonment rate of 220 per 100,000 head of population compared with the Australian rate of 63, and the next highest jurisdiction, Western Australia with a rate of 100 (Owston 1990).

 Prisoners in Northern Territory compared to Australian average

 

#

per 100,000

Aust av

1982

312

369.3

89.8

1983

260

292.9

91.6

1984

249

266.3

85.6

1985

334

339

94.1

1986

429

412.4

97.6

1987

467

435.5

100.8

1988

381

352.7

100.4

1989

351

319.2

103.5

1990

415

369.9

112.2

 

 

 

 

Source: (Carchach and Grant 1999)

In 1990, over 70 per cent of sentenced prisoners received in Territory prisons were serving less than 12 months, for relatively less serious offences, such as drink driving, break enter and steal, and assault (of a non-sexual nature) (Owston 1990).

Major legislative changes

Northern Territory Juvenile Justice Act 1984

The main thrust of the Act was directed towards the diversion of offenders from the criminal justice system and, in particular, a custodial sanction.

A Juvenile Justice Review Committee was established with the implementation of the Northern Territory Juvenile Justice Act in 1984. Based on recommendations of the review, juvenile justice functions were transferred from child welfare services to the Department of Correctional Services in early January 1986, and the Legislative Assembly passed wide-ranging amendments to the Juvenile Justice Act as part of a total overhaul of the legislation.

Under Section 53 of the Juvenile Justice Act 1983 and Juvenile Justice Amendment Act 1987, the following penalties were available to the Juvenile Court upon finding a charge proven:

  • Discharge without penalty.
  • Adjourn the matter for a period not exceeding six months.  If no further offending occurs, the juvenile may be discharged without penalty.
  • Fine not exceeding $500 per offence.
  • Good Behaviour Recognizance (bond) not exceeding two years.
  • Perform unpaid community service work.
  • Probation for a period not exceeding two years. 
  • Detention or imprisonment not exceeding twelve months per offence.  To be imprisoned, a juvenile must be at least fifteen years of age.  For serious offences, the Supreme Court has the power to order detention or imprisonment for a period that, if committed by an adult, is punishable.  There is provision under the Act for periods of detention/imprisonment to be served periodically.  An alternative may be for the court to specify that a juvenile perform periodic detention each weekend for three months from the date of the Order.
  • Order a juvenile to participate in a project or approved program.

Major policy changes

Professionalization of corrective services staff

After the closure of Fannie Bay, there were significant changes made to the conduct of gaol staff and the management of prisons in line with the Hawkins' reports. In 1984, the Acting Chief Prison Officer, JA Wright, stated:

The Northern Territory Correctional Services has expanded rapidly over the past seven years, and in some respects, has progressed beyond the level of knowledge of the average Officer. They have not accepted the changes, and through negative responses, are negating whatever benefits the Treatment Programme might have for inmates.

This is not the fault of the Officers, but rather, a fault of the system which did not prepare for these changes … No coordination was given to the introduction for these changes, and functional operations within the prison, were not brought into line with the aims and objectives of the treatment programme. As no firm guidelines [sic] were laid down, decisions were made ‘ad hoc', with little nor no cognizance to the treatment programme. So we were left with an operation which was self-defeating, and compounded those problems which the programme was supposed to overcome (Wright 1984).

The Anderson report noted “a very small vestige of the ‘old school' high-handed sanctimonious attitude lingers on in the upper levels of the institutions.” (Correction Services 1984)

Establishment of the Department of Correctional Services

The Northern Territory Department of Correctional Services was established in 1984. The first challenge of the Department was to reduce the three major categories of prisoners:

  • those on remand;
  • fine defaulters; and
  • those serving less than 12 months predominantly for offences of break, enter and steal, assault (of a non-sexual nature), drink drivers, and drive while disqualified.

The second priority for the Department was to address the over-representation of Aboriginals in the prison system. In 1984-85, Aboriginals represented 20 per cent of the general Territory population and comprised 73 per cent of the prison population.

The third priority was to address the high imprisonment rates by preventing juvenile offenders from graduating to the adult criminal justice system (Owston 1990).

Territory Bail Assessment and Supervision Service

The Department of Corrective Services began piloting the “Bail Assessment and Supervision Service” in the mid-1980s. BASS was modelled on a New South Wales concept in which probation and parole offices provide a report (verbal or written) to judges and magistrates on the suitability of defendants to be granted bail.

The BASS scheme successfully reduced the number of prisoners on remand. Throughout the 1980s, the Territory had the highest remand rate of prisoners in Australia. In 1990, the Northern Territory remand rate was 37 per 100,000 population, compared with the Australian rate of 11 and the next highest of 16 in New South Wales (Owston 1990).

BASS was implemented, in part, to reduce the numbers of prisoners being incarcerated for breaches of justice orders. In 1989, 73 prisoners were incarcerated for breaching probation, a community service order or bail, representing 11 per cent of total prisoners sentenced that year (Owston 1990).

Vulnerable populations

Indigenous prisoners

A major priority of the Northern Territory Department of Correctional Services in the 1980s was to reduce the over representation of Aborigines in prisons and the criminal justice system generally. In 1984-85, Aboriginals represented 20 per cent of the general Territory population and comprised 73 per cent of the prison population (Owston 1990).

Wright's 1984 submission to the Committee of Review into Northern Territory Correctional Services brought up the issue of ‘racial problems' (Wright 1984).  He noted that, despite official policy, some prison officers deliberately separated Aboriginal prisoners' accommodation from whites in the belief that this would diminish racial tension. He noted that this practice tended to create the opposite effect. When prisoners were allocated tasks, Wright found that Aborigines were given the mundane unskilled work, while jobs which required hygiene or skills were given to white prisoners. He found that there was a low level of understanding amongst officers of Aboriginal cultural norms, and some officers used insulting and racist terms to describe Aboriginals, both privately and to Aboriginal inmates.

Owston (1990) claimed that initiatives such as the fine default diversionary program and to a lesser extent, at this time, the home detention program, reduced the number of Aboriginal prisoners serving fine default and short-term imprisonment. He also claimed that a joint detention program/alcohol treatment program was being explored with health officials and local Aboriginal organisations at the time.

In the 1980s, the Department of Corrective Services established the Aboriginal Community Corrections Officer Program to recruit more Indigenous people as probation and parole officers. These persons are then supervised and trained by statutory probation and parole officers who normally reside in the Aboriginal community.

Juvenile prisoners

A Juvenile Justice Review Committee was established with the implementation of the Northern Territory Juvenile Justice Act in 1984. Based on recommendations of the review, juvenile justice functions were transferred to the Department of Correctional Services in early January 1986, and the Legislative Assembly passed wide-ranging amendments to the Juvenile Justice Act as part of a total overhaul of the legislation.

Newman (1991) stated that, in the Northern Territory during the 1980s, there were two forms of community service orders for juvenile offences:

  • a court-made order, where the sentencing authority has the  power to order the offender a set number of hours (not  exceeding 480 hours) of community work
  • a director-made order, where the offender may apply to the Director of Correctional Services to perform community service work in lieu of payment of a fine imposed by the court.  

All community service projects were approved by an advisory committee to ensure certain criteria were maintained.  These criteria include: the work is for non-profit or charitable  organisations or needy individuals; volunteers from within the sponsoring group or organisation are in attendance during the performance of community service and preferably able to work with the offender; work performed would normally only be carried out by volunteer labour, and would therefore not detract from paid employment opportunities; work will not be of a demeaning or degrading nature; and the work to be done will benefit the general community, the person or organisation for whom the work is done, and the offender.

Diversionary programs

Fine Default Diversionary Program

In 1987, the Department of Corrections piloted the “fine default diversionary program”, which used community based sentencing alternatives to reduce short-term, and unnecessary fine default imprisonment.

Prior to the introduction of the scheme, fine defaulters accounted for approximately 30% of prisoners received into Territory prisons. The program resulted in a 25% drop in prisoner numbers from January 1987 to December 1989 (Owston 1990).

Home detention

In 1986, legislation to provide for a home detention scheme was passed in the Northern Territory. Amendments to The Criminal Law (Conditional Release of Offenders) Act were passed during the February/March sittings of the Legislative Assembly to provide for the electronic surveillance of offenders.

The home detention program was developed to provide a punitive sentencing alternative to short-term imprisonment. Under the Territory home detention scheme, an offender must be facing imprisonment, and before placing the offender on a home detention order, the sentencing authority must receive a report from a probation and parole officer to establish the following:

  • the offender is facing certain imprisonment;
  • the offender consents to such an order;
  • the offender is suitable for home detention.

 Owston (1990) outlines the requirements of the project, namely: The offender's family and close neighbours are in agreement with a home detention order, and checks are made to ensure that the offender does not have a history of child abuse or domestic violence.

Surveillance of offenders on home detention is carried out randomly 24 hours a day, by part-time surveillance officers and through an electronic telephone surveillance regime, whereby the offender wears a monitoring device on the wrist or ankle and is randomly called by a computer during those hours when he/she should be at home.

Conditions of home detention normally include abstinence from alcohol, or restricted consumption, for the duration of the order. These conditions are randomly checked by the use of an electronic breath analyser. Undertaking counselling or treatment for alcohol/drug abuse or mental health problems can also form part of a home detention order.

Aboriginal Community Justice Project

The Aboriginal Community Justice Project was initiated in late 1982 with the cooperation of the Galiwinku Community Council at Elcho Island. The aim was to provide a justice program which could accommodate customary law and social control mechanisms. This project was generally considered a failure by the Elcho Island community, whose representatives did not feel that they had adequate input into, and oversight of, the project.

1990s

During the 1990s, the Gunn Point farm facility was closed. The juvenile facilities Malak House and Giles House were also closed, and were replaced by the Don Dale Detention Centre (for 30 juveniles) which was opened in November 1991. In 1990, King Valley Station, a privately run, state-subsidised juvenile rehab centre, was opened for juveniles with alcohol problems. The Wilderness Work Camp at Wildman River continued to function throughout the 1990s.

Aranda House (formerly Giles House Detention Centre, Alice Springs) was handed over to the Central Australian Child Care Agency in 1993. The facility provided safe and secure residential accommodation for youth at risk, specialising in counselling, advice and support to Aboriginal youth. Also on offer was a residential placement for young offenders placed on bail supervision as an approved Juvenile Offender Placement, which was funded by the Department of Correction Services on a fee for service basis.

Rates of incarceration

Rates of incarceration in the Northern Territory remained well above the Australian average.

Prisoners in Northern Territory compared to Australian average

 

#

NT per 100,000

Aust av per 100,000

1991

465

407.9

116

1992

447

386.9

118.3

1993

422

360.5

119.2

1994

455

383.4

125.5

1995

471

389.8

127.3

1996

482

391.1

130.9

1997

606

454.8

134.9

1998

635

474.9

139.2

Source: (Carchach and Grant 1999)

From 1986 to 1998, the Northern Territory reported a 16% increase in incarceration rates (Freiberg 1999).

Major legislative changes

Mandatory sentencing

In the Northern Territory, amendments to the Sentencing Act 1995 (NT) and the Juvenile Justice Act 1983 (NT) introduced in 1996 required the court to impose a mandatory minimum term for persons convicted of a range of property offences: fourteen days for adult first offenders; ninety days for an adult with one prior property conviction and twelve months for an adult with two or more prior property convictions. A juvenile (15 to 17 years old) with one or more prior property convictions must be sentenced to twenty-eight days in a detention centre. Prisoner numbers quickly increased as a result of the mandatory sentencing regimes. In March 1997, the Northern Territory government allocated $A3 million for 140 new prison places (Flynn 1997).

Major policy changes

Aboriginal Law and Justice Strategy
In 1995, the Territory government established the Aboriginal Law and Justice Strategy in order to implement some of the recommendations of the Royal Commission into Aboriginal Deaths in Custody, and to coordinate emerging Territory community initiatives in law and justice. The Strategy was piloted in Ali-Curung in 1996, replicated in Lajamanu in 1999, and both communities engaged in peer modeling with the Yuendumu community, who established their own strategy in 2002.
Each community established a law and justice committee, which had a wide range of responsibilities under the Territory Strategy including involvement  in diversionary programs, pre-court conferencing, victim offender conferencing, community service orders, and the operation of night patrols and safe houses.
Representatives from the Ali-Curung, Lajamanu and Yuendumu communities also sat on the Kurduju Committee, which provided an opportunity for information-sharing and peer modeling, and also to address a perceived deficit in policy and program knowledge, and expertise in regard to remote communities.
Major inquiries

Zero tolerance policing

In 1998, the Attorney General and the Northern Territory Law Reform Committee began exploring the applicability of American “zero tolerance policing” (ZTP) strategies to the Northern Territory. The Chief Minister, Shane Stone, investigated ZTP on a trip to Los Angeles and New York. Following the trip, Stone declared himself a “believer” in ZTP and suggested that public drunkenness be “recriminalized” (Carment 1998).

Vulnerable populations

Juvenile offenders

The Juvenile Justice Amendment Bill and the Law Reform (Miscellaneous Provisions) Amendment Bill were passed on the 20th of August 1991 to come into effect on the 1st January 1992. This Bill replaced the originally proposed Parental Liability Scheme introduced in 1990. The attorney general stated that the scheme would:

  • Allow the right of civil action and allow people to sue the parents of children who intentionally cause damage to their property, to a maximum of $5000
  • Raise the maximum for restitution orders in the Juvenile Court from $2000 and $5000
  • Make parents liable where their children (defined as a person under 17 years old) are not employed full-time and normally live at home.
  • Parents must also pay $100 per week if their child (16 years or less) is put into detention. Failure to do so, even in the case of financial hardship, could result in the parent being given a sentence of community service or a jail term.

 

In November 1992, Shane Stone, the then-Minister for Education and Training, stated “In all future cases of vandalism to schools by children, the Department will assist victimised school(s) to seek restitution from the parents of these children.” (Bonnie 1995)

In 1995, the Juvenile Justice Amendment Bill was proposed by the Minister of Corrective Services, Eric Poole, which “seeks to have a detainee automatically transferred to prison on reaching the age of 17 years; allow a detainee to be discharged up to 5 days before a sentence formally ends; remove requirement for the Minister to be involved in disciplinary measures; enable the appointment of official visitors; and ensure that the sentence of a juvenile detainee does not continue to run while the detainee is at large.”

Amendments to the Juvenile Justice Act 1993 (NT) were passed in May 1995 which included ensuring that juvenile offenders be transferred to prison within 28 days of turning 17. Following the introduction of the Juvenile Justice Act there were calls to empower magistrates and police to implement harsher sentencing for juvenile offenders.

In December 1995, Shane Stone called for mandatory jail sentencing for housebreakers, with the police backing this proposal. In August 1996, the Attorney General Denis Bourke tabled draft legislation for amendments to the Juvenile Justice Act which included automatic detention for second-time offenders between 15 and 17 years of age. Subsequent changes to the Sentencing Act 1995 and the Juvenile Justice Act created the mandatory detention regime, which were repeated in 2001 following national and international condemnation.

Diversionary programs

Katherine Community Aid Panel

The Katherine Community Aid Panel was established in Katherine in 1990 and was available to juveniles and young adults who plead guilty. The Magistrate can then delay sentencing for 3 months and refer the case to a panel (consistently of voluntary professionals) who:

  • meet with the young person after they have spoken to a youth worker within a week of the court appearance
  • the panel then decides on an appropriate process of counselling and can continue to meet on an “as required” basis
  • the panel reports the outcome to the court; and
  • the panel's report is taken into consideration in the sentencing process.

 

Punitive work orders

In the mid-1990s, alternatives to incarceration for juvenile offenders, such as Community Service Orders, were generally viewed as “too light” to have a punitive or deterring effect by politicians. In 1996, the Attorney General indicated his interest in creating a punitive work order for juvenile offenders:

“This will be over and above the community service order system that already exists. The punitive work order will be hard work. It will be for the benefit of the community and, most importantly, it will be public. Those serving a punitive work order will be clearly obvious to the rest of the community. They will be identified as punitive work order people, either by wearing a special uniform or some other label. (Bonnie 1996)

In 1997, the Northern Territory introduced a system of ‘punitive work orders' for offenders which appeared to provide a mandatory sentence of 224 hours with harsh penalties for breach (Warner 1998:282). Offenders were required to wear an orange vest with the words ‘community service order' prominently displayed on them. This requirement has been criticised as being “isolating, degrading, humiliating and stigmatising” (Warner 1998:284).

Community Justice Program (CJP)

The CJP was first piloted in Alice Springs and Yuendumu by the police. The CJP diverts young offenders who admit guilt from the Court system. Offenders and victims meet to discuss and repair any damage caused by the offence, mediated by a police officer. Agreements can include an apology, restitution, reenrolment in rehab or work being undertaken by the offender.

Alternative dispute resolution in Aboriginal communities

Over the period 1992 - 1998, the Aboriginal Disputes Subcommittee of the Northern Territory Law Reform Committee explored alternative dispute resolution in Aboriginal communities. Their 1998 report recommended the establishment of an Alternative Dispute Resolution Process in Aboriginal communities, which would involve the conferral of limited lawmaking power to communities to regulate their own behaviour

Juvenile Offender Placement Program

The Juvenile Offender Placement Program (JOPP) provides community placements for juvenile offenders under court orders for a period no longer than 28 days, as a specific alternative to detention.  The high remand rates in juvenile detention centres often not leading to a sentence of detention warranted Correctional Services investigating and developing its own care program, based on the successful Welfare Division 'Community  Care Program'.

JOPP families and individuals are recruited from the community to provide care and a supportive home environment for juvenile offenders who have been bailed or released to probation.  Those juveniles targeted for JOPP have experienced some form of family dislocation or trauma.  Placements with a specific and individualised program of in-care treatment, will be provided for the juvenile.  Such a placement will be made available where, in the opinion of an assessment panel, the juvenile will benefit from care in a supportive family environment as opposed to being detained in custody, and where the juvenile:

  • is prepared to sign a contract specifying  responsibility  and commitment to developed  objectives of the in-care treatment program;
  • will commit him/herself to working with the program  family, and developing reasonable rapport with the family.

2000s

In 2008, the Northern Territory government announced that a new correctional facility was to be built, replacing the Berrimah facility. The long-running Wilderness Camp for juvenile offenders at Wildman River was closed in 2003, and its horticultural programs were transferred to the Don Dale facility.

Rates of incarceration

On 30 April the BBC World Service reported that the Northern Territory had the highest incarceration rate for any developed country (Levy and Butler 2000). According to the Australian Bureau of Statistics, in June 2008, the Northern Territory had the highest imprisonment rate (590 prisoners per 100,000 adult population) compared to the June quarter 2008 average daily imprisonment rate of 164 prisoners per 100,000 adult population (ABS 2008).

Major legislative changes

Repeal of mandatory sentencing

In 2001, the Northern Territory Legislative Assembly passed legislation which repealed mandatory sentencing of juveniles and adult property offenders: Juvenile Justice Amendment Act (No2) 2001 and Sentencing Amendment Act (No 3) 2001.

The Youth Justice Act 2005

In 2005, the Government enacted the Youth Justice Act 2005, which replaced the Juvenile Justice Act. It brings all aspects of juvenile justice under one piece of legislation , including investigation, pre-court diversion, court proceedings, sentencing and sentencing outcomes, the operation of community supervision orders, detention centres and interstate transfers.

The Act included a presumption in favour of diversion in all cases except those involving serious offences, or those involving offending by young people with a history of offending or previous diversions. The aim of the diversion scheme is to take young people out of the formal criminal justice system.

Similar levels of diversion are available under the new Youth Justice Act (s39(2)) as the previous scheme in the Police Administration Act - namely:

  • verbal warnings;
  • written warnings;
  • family or victim offender conferences (Youth Justice Conferences); and
  • referral to community-based youth offender programs which include counselling, education, training and life skills programs.

 

The Act also created a Youth Justice Court, and a Youth Justice Advisory Committee allows for a greater level of community input into the youth justice system.

Major policy changes

Mixing of remand with sentenced prisoners
In 2003, Attorney-General Dr Peter Toyne approved the mixing of remand prisoners with sentenced prisoners at Darwin Correctional Centre.
Dr Toyne told the Northern Territory News he had been forced to take the unusual step because of the unprecedented numbers waiting on remand. He said Darwin's remand facility was over capacity with 104 prisoners awaiting court hearings (Bevin 2003).

Australian Council of Civil Liberties president Terry O'Gorman said the decision was ``fundamentally wrong'' and described it as a backwards step for civil liberties. "The whole system of being refused bail and being held as a remand prisoner is that you are supposed to at least have conditions of confinement that reflect that you're innocent,'' Mr O'Gorman said (Bevin 2003).
Emphasis on rehabilitation
In 2002, the Justice Minister, Dr Peter Toyne, announced a government review of offender rehabilitation models developed overseas. In 2006, a custom-made “Living Skills Unit” was opened at the Berrimah facility, at a cost of $7.8 million.  The unit is designed to provide low-risk inmates with life skills and to boost their employment opportunities post-release.

Parole

In 2003, the Northern Territory introduced a number of reforms including:

  • Adding new members to the Parole Board including a police officer, a Victims of Crime representative, and community representatives.
  • Setting out matters to which the Board must have substantial regard in considering the public interest where it is determining the release of a person who has been convicted of murder. These matters include:
    • Protection of the community (which is the paramount consideration).
    • The likely effect on the victim's family if the offender is released.
    • In the case of Aboriginal or Torres Strait Islanders who identify with a particular community, the likely effect of release on that community.
  • Requiring the Board to record reasons for their decision when determining eligibility for Parole of a person who has been convicted of murder.

In 2006, the Northern Territory enacted a number of reforms relating to victims' rights including establishing a Victims' Register that allows victims to elect to receive information about an offender who has been imprisoned for a violent offence; and providing victims with an express statutory right to make written submissions to the Parole Board about an offender who is due to be considered for release on parole.

Specialist training for prison staff

As part of it's response to this review, the government initiated the Prison Officer in Training (POIT) program. The first batch of 22 staff graduates in November 2005. The POITs start on a 12 month contract with the Department of Justice consisting of eight weeks of classroom theory and practical activities, work experience within the prison and on-the-job training. They also undertake a traineeship with the New Apprenticeship Centre. Successful completion of the entire program results in a Certificate III in Correctional Practice - Custodial qualification.

Parental Responsibility Orders

From July 2008, parents of repeat juvenile offenders will be required to enter a contract to prevent their child from engaging in anti-social behaviour and youth crime. If an order is breached, parents can be fined up to $2000. “Non-payment of fines may result in non-essential household assets like flat screen TVs being seized” (Northern Territory Government http://www.nt.gov.au/justice/youth_crime/index.shtml).

Parents may be required to attend parenting guidance counselling, support groups or rehabilitation programs. They may have to ensure their child attends school, ensure their child is home by a certain time or that the child avoids contact with a particular person or place. Parents will have assistance to access support programs.

“Substantial efforts” will be made to engage with parents on a voluntary basis. Should this not succeed, an agency may seek a Parental Responsibility Order through the court.
Expansion of Don Dale, Wildman River Wilderness Camp closed
In 2003, the Justice Minister Dr peter Toyne announced that Don Dale, the Territory's principal juvenile detention centre, would be expanded to include a medium security open environment facility. This extension would enable the range of horticultural programs run at the low-security Wildman River facility to be offered at Don Dale under a more secure environment.
The closing of Berrimah announced
In April 2008, the Territory government announced that Darwin's prison at Berrimah will be shut down and a replacement built somewhere near Darwin. The Government will spend $300 million on a replacement jail with double the existing capacity. The new jail will be designed for 1000 inmates.
The land at Berrimah will be freed for development, and the first stage of the new prison will open in 2011.  Katherine and Tennant Creek were tabled as possible locations for the prison, however, problems recruiting correctional staff mean the Darwin area remains a likely location.
Major inquiries
Review of Correctional Services

In September 2003, the Review of Correction Services was initiated, overseeing:

  • the implementation and operation of the new Integrated Offender Management program
  • the adequacy of rehabilitation programs,
  • the operations and management of correctional institutions
  • the adequacy and appropriateness of existing policies and work practices
  • the future recruitment and training and development needs of staff
  • prisoner management, employment and education

The report was handed down in 2004 (see CAYA 2004), and the authors identified five key areas for reform:
• Strengthen the management team
• Recruit key leadership positions
• Enhance the overall training function
• Restore staffing levels, and add staff needed to make the transition
• Increase the participation of Indigenous people
In September 2005, the NT Government announced that it would adopt the 71 recommendations of the review. Minister for Justice Dr Peter Toyne said the Government will provide $18.5 million to implement the reforms and another $8 million for the upgrade of facilities.
Inquiry into Aboriginal customary law

In 2002 the Attorney General Announced in parliament that the Northern Territory Law Reform Committee would conduct an inquiry into Aboriginal customary law. The terms of reference required the committee to inquire into the strength of Aboriginal customary law in the Territory, and make recommendations of the capacity of customary law to provide benefits to  arrange of areas (governance, social well being, law and justice, economic independence, wildlife conservation, land management and scientific knowledge). The final report was provided in November 2003, recommending that Aboriginal customary law be integrated into the Territory court system (Northern Territory Law Reform Committee 2003). The government endorsed all recommendations.

In 2004, the Northern Territory Government implemented a key recommendation by the committee to provide a formal mechanism for raising issues relating to customary law, or the views of members of the Aboriginal community, when a court is sentencing an Aboriginal offender. The new laws provide that the court may only receive such information if the party that wishes to present the information gives notice to each other party, each of the other parties has an opportunity to respond to it, and the information is presented in the form of evidence on oath, an affidavit or a statutory declaration.

Vulnerable populations

Juvenile justice
In 2003, the government announced the expansion of the Don Dale Juvenile Facility to incorporate the agricultural programs of the Wilderness Work Camp. In 2003, the Don Dale facility has a current capacity of 40 detainees (including the program at the Wilderness Work Camp) and current numbers are at 19 juveniles in custody, 8 of those being held on remand.
The mentally ill

In 2005, the Minister for Family and Community Services, Delia Lawrie, announced that clinical and rehabilitation services to prisoners with a mental illness would be “significantly increased”.

According to the Territory government's 2005 submission to the Senate Select Committee on Mental Health, there are no specialised units for the mentally ill prisoners in any Territory prison, and there are no long-term mental health facilities for prisoners in the Northern Territory. As a result, a person found not guilty of a charge due to mental impairment may be subject to a custodial supervision order at a correctional facility. There is a secure 10 bed unit at the Royal Darwin Hospital for acutely ill prisoners, however, the facility is small and admissions are usually brief.

Female prisoners

In 2006, the Territory Ombudsman launched an investigation into concerns surrounding the conditions for women prisoners in the Northern Territory. The investigation followed a series of complaints being received from women at Darwin Correctional Centre.

The Ombudsmen's report was released in 2008. The central issues of complaint explored in the investigation were:

  • Access to programs, education and employment for women prisoners
  • The management of and support for women prisoners with mental illness, cognitive disability or acquired brain injury
  • The prison's response to self harm and attempted suicide

 

Whilst the Ombudsman found a number of positive recent initiatives and enthusiasm for change within correctional services, the report identified a systematic failure to consider women as a distinct group with specific needs.

As a result, female prisoners lacked services, endured discriminatory practices, were vulnerable to abuse, and were provided with few opportunities in prison to address issues relating to crime, poverty, substance abuse and domestic violence.

Diversionary programs

Juvenile Pre-court Diversion Scheme

This scheme, introduced in 2000, gave police powers to divert juvenile offenders away from the court process (for a detailed overview, see Bates 2001). Offences classified as minor received either a verbal or written warning and more serious offences were dealt with through family conferences and victim offender conferences. Certain offences such as murder, manslaughter and serious physical assault were excluded from diversion. The offender has the option to decline diversion and go to court.

A 2007 evaluation of the scheme found significant improvements in reoffending patterns amongst those subject to the diversionary scheme, in comparison to those who attended court (Cunningham 2007). In particular, significant differences in the reoffending patterns between juveniles who attended court and those who were diverted from the court process:

  • Males who received a diversion were 44 percent less likely to reoffend than those who went to court
  • Females who were diverted were more than twice as likely (57%) not to have reoffended as those who made a court appearance.

Alcohol courts

In 2006, the Northern Territory enacted laws to establish an Alcohol Court, which is a specialist court to deal with offenders who are dependent on alcohol. An intervention order fully or partially suspends a term of imprisonment on the condition that the person undergoes treatment for alcohol dependency and is subject to supervision requirements.

Offenders are eligible to be referred to the Alcohol Court for a prohibition order if they plead guilty to the offence, they are not facing a sentence of imprisonment, and they appear to be dependent on alcohol. A prohibition order may include orders that prohibit or restrict the consumption of alcohol by the offender, or prohibit or restrict an offender from entering licensed premises. Prohibition orders are not a sentence. They complement any sentence that might be imposed on the offender by the Alcohol Court.

Darwin Community Court

The Nhulunbuy (North East Arnhem Land) Community Court commenced in
2003/2004, and similar courts now sit as Courts of Summary Jurisdiction in a number of locations (including Darwin).  The Courts appear to have been largely successful to date, although in the context of having dealt with only a very small percentage of criminal matters. The pilot programme of Community Courts in Darwin and the Tiwi Islands was the subject of an interim evaluation in August 2006.  This review noted that 60% of respondents felt that the Court had increased community participation in sentencing, an important achievement.  The role of Elders was also seen to provide valuable assistance within the court process; and to provide a sense of community
responsibility and accountability for the joint decisions made by the Court.