If I were appointed Attorney General of the Northern Territory, my first day on the job would go something like this … In the morning, I would set about establishing a Northern Territory law reform commission. The law reform commission would enquire into issues and matters that were referred by the Attorney General, and would make recommendations for legislative reform.
I would refer two initial matters to the law reform commission for enquiry.
The first would be a review of the legislative requirements relating to the conduct of police investigations in the NT. In particular, the review would examine whether the existing legislative requirements relating to police investigations afford persons being questioned the right to legal representation and adequately protect the right to silence.
In the NT, there is currently no legislative requirement for police to ask a person who is in custody, and the subject of a police investigation, whether they would like to speak to a lawyer before they are questioned. In most other states in Australia, such a requirement does exist.
The right of a person charged with an offence to legal representation is contained in art 14 of the International Covenant on Civil and Political Rights. The Human Rights Committee has held that art 10 of the ICCPR, which relates to the rights of persons in detention, encompasses a more general right to legal representation for persons in detention.
This right to legal representation is largely diluted if there is no requirement for police to clearly inform an accused person about the existence of the right and, where the accused person chooses to exercise that right, facilitate access to legal representation by assisting the person to contact legal aid.
The same enquiry would also look at the adequacy of the existing safeguards on the right to silence. In particular, the law reform commission would report on the effectiveness and cultural appropriateness of the current police caution. Judicial officers and practitioners in the NT have acknowledged the problems associated with the police caution. Aboriginal interpreters have noted that it can be difficult to translate the caution in its current form. This is because the caution is inherently counterintuitive ‑ a police officer commences an interview by telling the interviewee that they do not have to answer any questions; the same police officer then proceeds to ask the interviewee a series of questions. There are concerns about whether this is a clear and culturally appropriate way of informing a person of their right to silence. The law reform commission would be tasked with exploring more effective ways of informing people, particularly Indigenous people, of their right to silence.
The second enquiry that I would refer to the law reform commission would involve a review of current sentencing practices in the NT, an examination of the adequacy of existing sentencing options and consideration of alternative sentencing programs. In particular, the enquiry would include a review of the frequency with which court fines are imposed on offenders in the NT, and the effectiveness of court fines as a non-custodial sentence for disadvantaged persons.
With the wheels in motion on the establishment of the new law reform commission, I would meet with the Minister for Health and Community Services over a late lunch to discuss the urgent need for funding to be directed to drug and alcohol rehabilitation services. In particular, we would discuss the need to match live-in rehabilitation programs with services to assist people transitioning out of those live-in programs. I would raise the need for places to be available in rehabilitation services for offenders referred through the court process.
I would hurry to a meeting with the Minister for Housing, and a discussion about the interaction between our respective portfolios. I would seek clarification on the steps that are being taken to address housing standards in Aboriginal communities, as well as the chronic shortage of transitional and emergency accommodation in the NT. We would also discuss the low numbers of applications to the Commissioner of Tenancies by Aboriginal people in remote communities seeking to enforce their rights under the Residential Tenancies Act. I would propose to provide increased funding to the Commissioner of Tenancies to outreach to communities to undertake community education about the rights and obligations of tenants and landlords.
I would return to my office tired, but quietly pleased with the progress made in my first day as Attorney General. There I would find, printed out and waiting on my chair, a funding application from the Human Rights Law Resource Centre. The application would request funding to provide human rights training to lawyers, government employees and service providers in the Northern Territory. I would read the application with approval and place it on the top of my list of action items for day 2.
As I cycled home, I would think to myself: ‘A human rights law resource centre. What an excellent idea. Wouldn't it be great if we had one of those in the NT …’
Beth Midgley is a lawyer with Blake Dawson on secondment to the North Australian Aboriginal Justice Agency in Katherine, Northern Territory