Mary Spiers Williams1
1ANU College of Law
Legal practitioners have known for some time what young people experience in detention centres. The screening nationally of images of those places and the acts that have taken place was not a revelation to us. But it reverberated in the youth justice arena, shocked us even in our fatalism and again we were confronted by a sense of futility that arises from a belief that we have no power to affect the conditions of custody or prevent children from being detained there. Despite our awareness of the dysfunction of the penal detention centre (from the considerable body of social science research, the evidence of our own perceptions of these places and the instructions of our clients), this information appears to play little part in the formal determination of youth sentencing. The reasons for this are often attributed to the limited power of the judicial arm of government relative to that of ‘Parliamentary sovereignty’.
In this paper, I interrogate this ‘irresponsibility’ and its paradoxical counterpart, the sense of futility. I then examine the cultural constraints that operate on legal practitioners, and in doing so de-fatalise them. Second, I tackle the remaining barrier to taking ‘responsibility’ as legal practitioners and demonstrate how being responsible is possible within the existing limits of the legal framework (including the deferral to Parliamentary sovereignty and a proper application of principles of sentencing law): in jurisdictions that have a penal detention centre like Don Dale, I demonstrate how the conditions of detention should always be taken into account as a matter of law, and argue that a court ought only in the most exceptional cases order detention.
In this presentation, I will discuss the first aspect of the full paper, that is, how legal practitioners persist in a condition of ‘irresponsibility’ regarding their role in the detention of children.
Mary Spiers Williams has diverse experience in the practice and policy of criminal law in NSW and the NT, including being Warlpiri people’s advocate. She continues to work within the legal field as a lecturer at the Australian National University, teaching in core courses of criminal law and evidence law and her sociolegal courses. She is currently completing doctoral research that explores how the legal field understands that concept of ‘culture’. The thesis is developed using Indigenous and ‘translocal’ methodology and theoretical perspectives, using data derived from field sites in central Australia. The field sites include summary sentencing courts, and as a preliminary step to addressing the larger thesis question, the thesis reexamines sentencing law, identifying some gaps and addresses inconsistencies in sentencing law epistemology.