Locking up First Nations people without legal representation

Legal sources say a treatment program for problem drinkers in the NT, described as 'unprecedented' under Australian law, has only locked up Aboriginal people.

The people's Alcohol Action Coalition and local First Nations peak organisations see it as a program that seeks to punish people for drinking, rather than facilitate proper long-term rehabilitation and preventative measures.

Marni Cordell and Lucy Watson New Matilda 24 April 2014

The Alice Springs Alcohol Mandatory Treatment facility has a sign on its locked front gate: "Family Visiting: Saturdays 1-4pm". Like a low-security prison, residents are fenced in, watched, and restricted from seeing loved ones. But unlike ordinary prisoners, those locked up under the Northern Territory's Mandatory Alcohol Treatment Act do not get to argue their case in a court of law, nor are they provided with legal representation.

Legal experts say the legislation's ability to detain people without a court process or a lawyer present is unprecedented in Australian law. According to sources in the Northern Territory, since the law came into effect in July last year, every single person detained under it has been Aboriginal.

Someone will be served with an Alcohol Mandatory Treatment (AMT) order if police have locked them up for being very drunk in a public place three times in two months. After this they are assessed by a clinician, and then brought before a tribunal - made up of lawyers, health practitioners and at least one community member - to be served the order. They are then taken to a secure facility, like that in Alice Springs, and locked up for up to three months. If they try to leave three times, they face criminal charges.

That's where the Central Australian Aboriginal Legal Service (CAALAS) met RP: an Indigenous Western Australian woman who didn't want to be locked up, so she left, and was charged with absconding from mandatory treatment. In December, CAALAS challenged her treatment order in the Magistrate's court, arguing that the order was unlawful and RP had been denied natural justice, because she had no one to speak on her behalf: no legal representation, and no interpreter, despite the clinician that assessed her finding it necessary.

The case was successful. Magistrate David Bamber overturned the tribunal's decision and ruled that the failure to appoint an advocate for RP was an error of law.

The success of the case has now cast doubt on the tribunal's other decisions. Russell Goldflam, president of the Criminal Lawyers' Association of the Northern Territory (CLANT), estimates that each week approximately five tribunal hearings occur in Alice Springs. Since the scheme began in July, he believes none of the people who appeared before these hearings have had legal representation.

This procedure is missing (1) representation and (2) a regulation for the tribunal to include culturally appropriate people.

"The Act provides that a person can engage a legal representative - which gives the impression that there will be some sort of arrangement for legal representatives to be provided," Goldflam told NM. "But in practice it's a completely empty right because there aren't arrangements made for lawyers to be made available."

The lack of legal representation at these hearings has been a key focus of a submission by a coalition of NT legal groups including CAALAS to a six-month review of the legislation, which is currently under way.

Mark O'Reilly, CAALAS's principal legal officer, told NM: "[This] is a tribunal that takes away the fundamental right to freedom. It locks people up and puts them somewhere against their will. I can't think of another tribunal that does that, that doesn't allow for legal representation."

The legislation states that if a person who is brought before a hearing has no representation, an advocate (someone trained in law or the treatment of alcohol abuse) may be appointed by the tribunal, however as Goldflam explained to New Matilda, only one advocate has been funded, and that person is based in Darwin.

People are transported to this all white tribunal for sentencing, without representation (Image: ABC Alice Springs)

"The Department of Health has, I'm told, now allocated funds for the employment of a lay advocate to work out of Alice Springs and steps to recruit for that position have started," Goldflam said. "Now I don't know when they expect that person to start but this scheme came into operation on 1 July last year, so it's been running for the better part of a year without any advocates [in Central Australia] at all."

"There will be eventually some sort of advocacy but it won't be a lawyer," Goldflam said, explaining that neither of the legal aid agencies that operate in Central Australia have been funded to provide services to people appearing before the tribunal. "Those organisations are only allowed to do what they're funded to do," he said.

The NT Department of Health website describes the AMT scheme as "a harm reduction strategy designed to get help to some of the most chronic abusers of alcohol in our community". "During their treatment clients will be offered a range of development programs, including life skills and work readiness programs. Each client will have an individual treatment plan," the website states.

Tom Berkley, president of the AMT tribunal, told NM that because the tribunal is therapeutic, rather than criminal, most people who appear before it don't want a lawyer. "These are not defendants, we're not accusing them of anything," he said. "They are alcoholics, we've seen the tests, and we're proposing to give them three months off grog for treatment ... they know they've got to stop [drinking], and they know they can't."

Berkley said that legal representation was not necessary because the tribunal is "divorced from the criminal justice system".

But according to Julie Edwards, CEO of Jesuit Social Services (JSS), this is the key problem. She says the tribunal is being used as a "court but without the usual safeguards". "It points to poor legislation that puts people in this position," she told NM.

The Alcohol Mandatory Treatment Act was passed by the NT's Country Liberal Party government on 28 June last year - just days before it came into effect on 1 July. The legislation was contentious at the time - it passed with the support of the three independent members of parliament after 43 amendments and eight hours of debate. Labor member Michael Gunner told the ABC at the time that it "represents one of the greatest Australian policy failures since the introduction of cane toads".

In many ways, the AMT tribunal is similar to the state and territory-based Mental Health Review tribunals, which have the power to detain people who are mentally ill. "Both have the job of deciding whether or not to detain people for lengthy periods who haven't committed offences," Goldflam told NM.

"That's a very unusual thing, because almost everybody in Australia who gets locked up is locked up for committing an offence or for being suspected of committing an offence - except for asylum seekers and people with certain diseases and people who are mentally unwell," he said.

The difference is that, unlike the AMT tribunal, "the practice with the Mental Health Tribunal has always been that there actually is legal representation - the tribunal arranges that," Goldflam said.

Another key difference is that in practice, the AMT scheme is predominantly a law for black people. Indeed, according to Goldflam, "approximately 100 per cent of the people under the Alcohol Mandatory Treatment Act who appear in a tribunal are Aboriginal people".

The scheme has drawn criticism from key community groups in the Northern Territory including the People's Alcohol Action Coalition and the Aboriginal Peak Organisations, who see it as a program that seeks to punish people for drinking, rather than facilitate proper long-term rehabilitation and preventative measures.

North Australian Aboriginal Justice Agency (NAAJA)'s principal legal officer, Jonathon Hunyor, agrees, and has called on the NT government to provide evidence that the scheme is working.

Between July and December 2013, 164 people were put on treatment orders, according to figures from the NT government. It is unclear how many people have been given adequate aftercare, or how many have returned to drinking.

"If they're going to lock people up and spend tens of millions of taxpayer dollars on a scheme, then they need to show us, and the community, the evidence that this is a policy that actually works," Hunyor told NM.

"One of the things we haven't seen is any example of aftercare being implemented in any meaningful way. We are not aware of people getting out and then having access to... services that would mean they don't just get back on the grog."

The NT government has said its six-month review of the scheme will not evaluate "client outcomes". Instead it will focus on "the legislation and its practical application in order to identify areas for improvement". It's expected the findings and recommendations will be released later this month.

For Hunyor, the only good outcome would be a dismantling of the system. "The current government's response is to try to keep people off the booze by locking them all up, and making them all criminals," he told NM.

"It flies in the face of ... what we know about trying to reduce the harm caused by alcohol - and that is that you've got to deal with supply."