The Barramundi Wedge of Mandatory Sentencing.

By Peter Andrews.

Wednesday July 26, 2000.


Mandatory sentencing is an issue that continues to sour Australia's standing within the United Nations and the global community as a whole. And so long as the nation's politicians continue to dance around this issue to satisfy their own political need, the nation as a whole will not only continue to suffer an increasing level of international embarrasment. Aboriginal Australians will also continue to be denied the basic human rights that most take for granted.

Extending on earlier reports published in the Sydney Morning Herald and Senate documentation, the following article examines alleged motives behind the Northern Territory's version of these laws -- and beyond towards the larger picture of as to why Aboriginal Australians are constantly dealt such a raw deal day after day. The most glaring notion from all of this is the suggestion that all the problems faced by the Territory's Aboriginal population, can be simply reduced down to the white population's access to go fishing for Barramundi.

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The Article.

In the controversy surrounding mandatory sentencing laws in both Western Australia and the Northern Territory, media articles tend to reveal a greater emphasis towards the Northern Territory. Claims that a number of United Nations and other international / national human rights treaties and acts these laws have breached, continue to come under UN scrutiny. But despite the number of human rights breaches, one ugly factor alone tends to stand out, when considering what motivates politicians to ignore the basic human rights and values of a minority, in order to maintain electoral support from a majority. Wedge and poll driven politics that lie behind political support for such laws at all levels of government, are successful tools for gaining power. While polls provide motivation, wedge politics divert attention of any outside criticism, away from those who reside within the electorate.

Mandatory sentencing was first introduced in Western Australia in 1996, and a year later in the Northern Territory -- in order to address high levels of property crime. The laws in each jurisdiction are structured differently, but both have had a heavy impact on Aboriginal youth.

Questions have been raised from a broad range -- from as high as the United Nations (UN) and United Nations International Children's Emergency Fund (UNICEF); retired and existing Federal and High Court Judges; various politicians and political groups; down to individuals within the general public. Despite the torrent of public protest, many of these questions were also raised back in 1997 when the laws were first implemented.

Marcus Einfeld, a UNICEF ambassador for children and a Federal Court Judge claimed that the laws are "in breach of the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All forms of Racism, ...Australia's own Racial Discrimination Act [and] ...the United Nations convention on the Rights of the Child. On March 18, former High Court Justice, Sir Gerard Brennan claimed that "locking up people in under-resourced prisons are cheap ways of satisfying a populist 'law and order' cry". Harsh words indeed but the above is only a tiny portion of an enormous level of highly qualified criticism, that seems to simply bounce off the thick skin of Australia's main political players within both federal and state / territory governments.

In the month following the suicide of an Aboriginal youth in February 2000, Mike Seccombe produced an article in the Sydney Morning Herald (April 8) that highlighted the use of wedge politics in both the Northern Territory and current federal government. Also raised was an allegation of a connection between problems faced by the Territory's Aboriginal population and white access to Barramundi fishing.

Citing Laurie Oaks, "classic wedge politics aims at creating resentment among a large group against a smaller one -- whites against blacks, ordinary workers against people on welfare". In the case of the Northern Territory, Seccombe refers to comments from Andrew Coward, a former political strategist with seven years experience with the Northern Territory's Country Liberal Party (CLP) government, who have clung onto power for nearly twenty five years.

Noted was that one of the most important features of living in the Territory is the ability to go fishing for Barramundi. Referring to Coward, "every CLP election campaign features somebody catching a barra. You'll even have chief ministers say, in addition to a voice grab, 'Oh, and you can still catch a barra here, too'. That's code for 'we are opposed to Aboriginal sea rights".

Considering the importance of continued access to go fishing for Barramundi, which would come under threat if sea rights were granted to Aboriginals, it is of little wonder as to why it is so important to hang onto the mandatory sentencing laws. These laws not only deflect attention from the sea rights issue, but indeed, provide more pressing matters for Aboriginal activists and supporters to focus on. The laws are also important because they also turn the spotlight back onto Aboriginals themselves, as it is they who are then projected as the source of a non existing property crime wave within the Territory -- mainly as a result of their high numbers within the prison system. But it is not only the Aboriginals in the Territory who commit crime.

In September 1999, the Senate established an inquiry to investigate the implications of a new Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill. During a hearing of submissions for this inquiry, Tangentyere Council bought up a number of issues, including one that provides an example of how easy it is to have an Aboriginal placed in custody -- as compared to any non-Aboriginal. This incident which occurred in one of the council's town camps, also highlights the extent of two opposing standards, applicable within the Northern Territory that depend on one's racial background -- standards that function at all levels including the Police, who operate at the front line of a judicial system that incorporates mandatory sentencing.

A submission presented by Kevin Rolfe of the Tangentyere council claimed that a white person with a baseball bat had "deliberately smashed the windscreens of two Aboriginal-owned cars and caused personal injury to a young Aboriginal boy that required medical treatment". The incident was reported to the Police and despite efforts by the council with Police to have the above crime investigated, " was not recorded as an official complaint. If it was an Aboriginal person who had smashed the windscreen, he would be in jail quick-smart".

Reflecting on a case where an offender was Aboriginal, an Aboriginal woman in Alice Springs was sentenced fourteen days for extending a long established hole in a fence to pass through -- which was part of a "...well-established shortcut used by the Aboriginal people"

As for the ease in how an Aboriginal person enters the Northern Territory's judicial system, language may then inhibit that persons ability to understand what is happening to them within the judicial process. In the northern regions of Australia, the Australian Bureau of Statistics have documented 34 separate indigenous languages -- with another 17 from central Australia.

ALP Senator Trish Crossin noted during a Senate speech last December that "Aboriginal people in the Northern Territory make up about 27 per cent of the population... about 75 per cent speak an indigenous language, or languages ...and have a very poor or limited understanding of English. In 1997-98, Aboriginal people made up 70 per cent of the people who fronted the Northern Territory's court system".

Other non-English speaking background residents of the Northern Territory "...have 24-hour access to free government provided interpreter services ...about 150 languages are catered for", yet none of these cover any indigenous languages.

As to efforts by the Northern Territory government to rectify this situation, Crossin notes that "over 20 years ago Aboriginal linguist Gloria Brennan wrote a report investigating the need for an Aboriginal interpreting service, concluding that there was a real and urgent need for such a service. Finally 18 years later, an Aboriginal languages interpreter service was trialed in the Top End over a six-month period".

From this trial, a draft report was presented to the Territory government that not only stressed the need for an indigenous translation service, it also recommended that this service should be incorporated into the existing 24-hour government interpreter service. However, "the draft report never saw the light of day and was replaced with a watered-down version several months later, which was prepared and published without involvement of members of the Working Group".

In February 1999, the Territory's own Anti-Discrimination Commissioner, Dawn Lawrie conducted a public inquiry which resulted with another report concluding that there was an urgent need for an interpreter service for indigenous languages. Ms Lawrie stated that "the lack of Aboriginal interpreter services in the Northern Territory is discriminatory, contravening both the federal Racial Discrimination Act of 1995 and also the Northern Territory's own Anti-Discrimination Act of 1992. Over the years the Northern Territory government's response has been that an Aboriginal interpreter service would be too expensive".

If one considers the above racist, Crossin notes that the response from the Northern Territory's Chief Minister, Mr Burke to media attention drawn to a situation where "a young Aboriginal woman was sterilised without understanding that the procedure was permanent", guarantees to shock. Continuing to reject the need for an Aboriginal interpreter service, Burke was quoted on this occasion to say, "to my mind (that) is akin to providing a wheelchair for someone who should be able to walk [and] ...he went on to say that it was a disgrace that Aborigines still needed them".

Situations as described above occur day after day and as appalling as some get, most are simply ignored and forgotten. Wedge politics used in the Territory to provide an ongoing distraction from its shortcomings, is also used often by the federal government for exactly the same purpose. If federal politicians are not attacking dole-bludgers or the unions, focus is often projected onto illegal immigrants or some other worthy minority target. But then there is that other all important tool used by those who either want to retain power, of take measures to achieve it and that is the opinion poll.

Polls in both the Territory and Western Australia reveal most people support the laws. The current political situation in Australia consists of a Liberal government at the federal level, as well as for both Western Australia and the Northern Territory (This situation has changed recently in Western Australia). It is therefore important for the Howard government to maintain the interests of voters in both, Western Australia and the Territory.

As for the federal opposition on the other hand, their focus is slightly different -- but it was noted by Seccombe in April 2000 that "Beazley's comments on the matter have been constrained to the point of almost nonsensical by the fact that Labour in WA, which has a chance of victory at the next state election, supports mandatory sentencing". But Beazley at the time of the visit by UN Secretary General, Mr Kofi Annan, was also quite happy to have the laws in the Territory overridden by federal parliament, in order to please voters within the south east coastal regions of the nation.

And as reported back then in the Sydney Morning Herald, Beazley discussed the situation privately with Annan, and asked him "to refer the laws to the UN Human Rights Commissioner, Mary Robinson, for scrutiny" This ultimately produced an embarrassing result for Howard who with Chief Minister Burke of the Northern Territory, went to great lengths to silence Mr Annan during his visit, on the mandatory sentencing laws issue. Mr Annan played the good diplomat role and said nothing about the issue while in Australia, complying to the requests from Howard and Burke -- but he also complied to Beazley's request to commence an investigation into the laws.

As votes are the most important thing on the agenda for those politicians with their noses stuck in their superannuation trough, language and just the ability to exist is the main issue for Aboriginals in northern Australia. When you consider the situation of the fifteen year old orphan who was placed in a Northern Territory jail, eight hundred kilometres from what amounted to just fragments of a home -- to be trailed in a court where the sentence is fixed and the language used may for all we know, one that may have been unfamiliar. When this boy took his own life, was he aware that he had only a few days to go before his release, after a total of twenty eight?

Given these examples, it is not hard to see that the levels of racism that operate in the Northern Territory are at an appalling level -- as it is appalling to see that the Northern Territory government has little or no interest whatsoever in rectifying the living standards for Aboriginals within the immediate future. And as for those at the federal level -- so long as one can continue to catch a Barra, are they any better?

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