Attorney general George Brandis has made a hash of it every time he opened his mouth about the royal commission into the Northern Territory government’s mistreatment of children in detention.
Last Friday on the ABC’s AM, he suggested to listeners that he was the person who drove the appointment of Brian Martin as royal commissioner. Brandis said it was not the Northern Territory government that nominated Martin, who had been chief justice of the territory for six years between 2004 and 2010. “I consulted my colleagues. We considered a number of options. We were looking for a retired judge.”
He then went about picking precisely the wrong retired judge. In fact, Martin is not retired at all as he still serves as an additional judge of the NT supreme court and to that extent is on the NT government’s payroll.
The more fundamental difficulty is that in all likelihood the royal commission would have to hear from witnesses who had been sent to the Don Dale detention centre by chief justice, Brian Martin. He was head of a criminal justice system that incarcerated people in punitive and inhumane institutions – and it had been going on for years.
The reports into life at Don Dale and other hell-holes in the territory were fairly thick on the ground, as Darwin barrister John Lawrence SC points out in an article last October for Land Rights News, published by the Central Lands Council.
Martin, at least in a general sense, already would have known what was going on in jails and detention centres and the unpiqued nature of successive NT regimes.
To suggest, as chief minister Adam Giles has done, that politicians and judicial officers in the territory were surprised at Four Corners’ revelations, because of the “culture of cover-up” in the Department of Corrections, is not credible – if for no other reason that some of the circumstances involving Aboriginal children in detention and their escape were before the courts.
Usually, when there is a perception of a conflict, there is one. Martin should not have been invited to be the royal commissioner, not because he is a bad judge or an unfair person, but because he was part of the machinery of justice, the end point of which, for a lot of youngsters was a brutal prison system, into which was fed an never-ending stream of Indigenous Australians.
Yet, on Friday, Brandis charged ahead with a full head of steam: “Any suggestion that he [Martin] is not independent, any suggestion that he is not suitable for the task of this kind is very foolish.”
There was more: “I have no doubt at all that Justice Martin’s conduct of this royal commission will demonstrate the wisdom of the government’s choice of him as royal commissioner.”
The next day Martin was on the phone to Brandis saying he wanted out.
It was Martin who showed wisdom, and Brandis who looked foolish. On Tuesday, the attorney general was still at it on Radio National Breakfast with Fran Kelly, insisting that Martin “could very well have proceeded” had it not been for his concerns about his daughter being dragged into the spotlight, as she had been employed as a justice adviser to the former Labor attorney general of the territory, Delia Laurie.
“Having spoken to him a few times over the weekend, I’m quite sure that that was the issue that was weighing most heavily on his mind,” Brandis said.
Everyone believed that any problem posed by Martin’s daughter working for the previous government had been fixed last Friday.
Martin himself said that Brandis was “satisfied that it would not compromise the independence or appearance of independence of the royal commission”.
What had been resolved on Friday had become a sticking point by Tuesday.
What had not penetrated the collective thinking of Brandis and Malcolm Turnbull was that their wise choice would either know witnesses appearing before the commission or had dealt with them in court.
Brandis tried to slice the salami very thinly by saying, “This is not a royal commission into the Northern Territory legal system or the criminal justice system”, and this is despite Brandis’s very own terms of reference for the commission calling for law reform, investigation into breaches of duty, appropriate oversight mechanisms (including presumable court-ordered oversight) and “any recommendations that you may consider appropriate”.
It is incredible that it never dawned on Canberra’s brains trust that the only way to handle this is with a retired judge or top-flight counsel from out of town, sitting alongside an Aboriginal leader. The thought of an Indigenous co-commissioner was contemplated last week, apparently, but only speedily progressed after a hue and cry went up and Martin packed his bags.
The engagement of the NT government in a joint royal commission is no less alarming. Brandis told the ABC, in one of his more audacious pieces of puffery, that “Mr Giles’s contribution to this process has been exemplary”.
This is the same Mr Giles whose grip on the separation of powers is as fragile as that of the late “Sir” Joh Bjelke-Petersen. Here is Giles defending an NT magistrate who was a supporter of and donor to the Country Liberal party:
It is fantastic he has rights and freedoms in a democratic society, such as the Northern Territory, to be a member of a political party. Good on him if he wants to make a donation to the member for Port Darwin, who has declared it in his register of interests ... Thank you very much, Peter Maley, the magistrate who has shown an interest in the Country Liberals.
It’s the same Giles who keeps John Elferink, the recently ex-corrections minister, as his attorney general. Giles’ tweets show his lizard-eyed insouciance:
Look at this real life example from just last week. Does anyone really think this youth won't reoffend? https://t.co/UMjZ9ImaUH (3/3) #NTpol
— Adam Giles (@adamgiles) May 21, 2016
And
Enough is enough.
— Adam Giles (@adamgiles) May 17, 2016
We give rogue youth every chance, but they still cause trouble: https://t.co/EmpqP9psd4 #NTpol pic.twitter.com/36JaTz1yOv
And here he is championing his hardline “crack down” on youth behaviour.
The only reason Giles is allowed inside the tent is because the NT’s Country Liberal representatives are part of the Coalition, sitting with the National party in the House of Representatives and the Senate.
Turnbull couldn’t be seen to be going hard against a political ally, no matter how putrid their odour, otherwise, surely, Giles would not be allowed within a bull-roar of advising about the royal commission.
However, not all estimations and predictions have been inaccurate. During the election campaign shadow attorney general Mark Dreyfus said that Brandis is a “disaster” of an attorney general.
Just after the new cabinet was announced last month, he added that Brandis was unfit for the job:
Gobsmacking that Turnbull thinks Brandis deserves another term as A-G. He is destroying community legal sector and undermining good govt.
— Mark Dreyfus (@markdreyfusQCMP) July 18, 2016
If politicians are so shocked about what goes on in the Northern Territory that they want “actionable answers”, what about a royal commission into the just as shocking detention on Nauru and Manus Island?
