Lawyer warns NT policies on legal aid are ‘catastrophic, unsustainable, untenable, and dishonest’

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One of the Northern Territory’s most prominent barristers says the legal system is currently collapsing and the situation will only get worse.
Legal aid services are being severely scaled back and prisons are fuller than ever before.
Meanwhile, the newly-elected Country Liberal Party government is bringing in a raft of reforms expected to land more people in jail, particularly children.
John B Lawrence SC has practiced law in the NT for 37 years. He says the unfolding crisis is the result of decades of disingenuous tough-on-crime policies designed to grab votes.
“What I call it is it’s penal populism, which is the same thing been going on forever in a day. And really the point I would want to make is that these politicians know full well that what they’re selling and we’re buying at 100 miles an hour isn’t going to work. They know that. In fact, it’s unsustainable, it’s untenable, it’s dishonest, because right now, as we speak, the legal system up here is an absolute f*****g catastrophe, and it’s a catastrophe because it’s in the process of collapsing.”
Mr Lawrence has held some of the nations most esteemed legal positions: Director of the Law Council of Australia, Director of the Australian Bar Association, President of the Criminal Lawyers Association of the NT, and President of the Northern Territory Bar Association.
He says that during his time, the state of the territory’s legal system has never been worse.
Last Month, Legal Aid NT issued a statement saying it will scale back services, slashing a vital lifeline for clients who don’t have the money to afford lawyers.
They made no further comment when approached by SBS News.
Practice Manager at Territory Criminal Lawyers, Dr Russell Marks, says the situation as he understands it is that adult criminal cases set down for hearing after January 1 have had their legal aid funding pulled, and new applications for legal aid began being denied late last month.
Mr Marks says this raises fundamental questions of justice.
“It’s fundamental, is it not, to a first world legal system, justice system, to ensure that people have access to legal representation. And for the first time in modern Australia, as I understand it, there’s the very real prospect that significant numbers of people in Northern Territory may not have legal representation, especially after the 1st of January, but even now as of 21st of October, new applications for legal aid are, as we understand it, being declined.”
Mr Marks says the High Court has ruled that legal representation forms an essential part of the right to a fair trial – which means that without more funding for Legal Aid, the territory could see judges deferring or discontinuing cases by issuing what’s known as a stay of prosecution.
“If stays are granted by the court, that means the prosecution ends. People are released from custody. If they’re in custody, they’re released from bail obligations, if they’re on bail. Effectively they have no charge to answer until they can secure legal representation.”
The President of the NT Criminal Lawyers Association, Beth Wild, told the ABC last week that she knows of one man whose trial was scheduled for January which has now been deferred with a stay of prosecution because he couldn’t access a lawyer.
She expects more to follow.
The NT government responded last week with $1 million in legal aid funding.
Mr Lawrence says that’s not enough.
“The million dollars, apparently, is just a drop in the bucket, and it hasn’t changed the Legal Aid decision, which was made a few months ago, which is that decision to cut the services. So it’s as grim as it’s ever been in the 37 years. So you’ve got, on the one had the highest imprisonment rate in the world. You’ve got overcrowded prisons which have always, you know, they’ve been overcrowded for months, years, actually, and now, on a wave of populism, we’ve got politicians bringing in policies which they know will increase the number of prisoners, which they cannot hold.”
The current crisis in legal funding comes as the new government announces a three-stage plan to address overcrowding in territory prisons, after inmate numbers reached a record high of more than 2,300 last week.
This includes building another one thousand beds by 2028, as well as new prisons. They have also initiated a series of stop-gap measures that involve shifting prisoners between facilities to manage the crisis.
The plan also provides for some boot camp and bail facilities for youths in Katherine and Tennant Creek.
It has been welcomed by NT Corrections Commissioner Matthew Varley.
“This is a significant change program for Corrections. It’s the largest infrastructure program that we’ve rolled out ever. And I’m very confident that as we transfer this over the next four years that you’ll see significant changes in the way we manage corrections and youth justice right across the Northern Territory.”
The prison system is also under pressure from disgruntled staff. Last week, 700 workers threatened to strike, as the United Workers Union held discussions with prison executives to discuss safety concerns.
It was one of the issues that brought the C-L-P to power in August, with the party promising to introduce mandatory sentencing for assaulting frontline workers, as the party promised to go tough on crime.
Children have been a particular focus.
Within two months of being elected the new government has lowered the age of criminal responsibility from 12 to 10, so younger children can again be locked up; hardened bail laws to criminalise breaches and enforce electronic monitoring on children; and introduced new police powers to search students in schools.
Legislation has also passed to increase the possible prison term for using vehicles to ram businesses, homes, or police cars to 10 years, as well as a new offence for posting on social media about committing crimes.
Harsher laws for unpaid fines and public drunkenness are being progressed too.
The government says these reforms will help reduce crime. Experts including National Children’s Commissioner Anne Hollonds disagree. She says the response is not based on evidence.
“They’re doing it because that’s what wins votes. So, looking like you’re going to be tough on crime helps you win the election. But once the election has been won, the job of government is to look at the evidence of what will prevent crime and to act responsibly with the use of public funds to invest in reforms that will lead in that direction. That is the job of government, to do the right thing.”
Ms Hollonds says investments in health, education, social services and child protection systems are needed to address the underlying drivers of crime among vulnerable children.
Mr Lawrence emphasises the fact that almost 100 per cent of the youth prison population in the NT are Aboriginal and Torres Strait Islander.
For adults, that figure is 86 per cent.
He agrees responses to crime are driven by governments seeking electoral gain, maintaining the current crisis is the inevitable result of failure from all major political parties over several decades.
“What they do is they go out and feel or smell the community and work out what they want, so that they can promise it to them, irrespective of whether it’s a good thing or a bad thing, of course. And when a politician says he’s going to throw the key away and stitch the legs together and hanging’s too good for them, we like it, which is our problem really, there’s something wrong with us, which is really a reflection on 21st century Australia.”
Mr Lawrence says it is true that crime has increased in the NT, and the nature of offending has become more serious too.
But, he says the continuation of tough-on-crime policies will result in more people in custody, and more Aboriginal deaths in custody too.
“You know what it’s like? It’s like if you’re driving in a car at night, at speed, and the driver of the car is the government or the politician you’ve just voted in, and you’re hurtling along at speed on a country road, what these politicians are doing as drivers is they just turn the lights off.”
The Northern Territory government declined to comment.