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Conduct unbecoming ... Judicial officer who is a repeat offender ... Internal investigations ... Counselling .. No evident improvement in behaviour ... "Lapses in demeanour" ... Home spun NT Judicial Commission ... From John Lawrence SC in Darwin 

The time has come to remove Judge Greg Borchers from the NT Local Court bench. His retention has damaged the integrity of the Northern Territory legal system.

Borchers is an Alice Springs Local Court judge and has been bullying practitioners, and their Aboriginal clients, many of them children, for well over a decade. 

His conduct has caused distress to many of those Aboriginal defendants, as well as contributing to a turnover of lawyers working for the Aboriginal Legal Service. His conduct includes remarks that are considered to be racist and which bring embarrassment to the legal system. 

Since 2016 he has been the subject of complaints on three separate occasions. These complaints have been investigated internally by the Chief Judge of the Local Court, and despite the fact that many of them involved racist remarks there has been no action by the NT attorney general.  

The only way to remove a Local Court judge is by the administrator, "on the address of the legislative assembly on the ground of incapacity or misbehaviour". 

The authorities suggest the "misbehaviour" would need to be "serious misconduct". In failing to bring the egregious conduct of Judge Borchers to the assembly the NT attorney general insults Aboriginal territorians and undermines the integrity of our legal system. 

His continuation as a judge is a function of a degraded legal system and establishment inertia. 

History

In November 2016 The Criminal Lawyer's Association of the NT (CLANT) made no less than 24 separate complaints relating to Judge Borcher's behaviour in court, some of which went back to 2008. 

Included were his remarks in 2012 at the sentencing of an Aboriginal juvenile offender, where he said that after completing his sentence he would not be allowed to return to Alice Springs because "you are not fit to live in a civil society" and would instead be returned to the "unregulated lands of Anungu Pitjantjatjara". 

Those 24 complaints were dealt with internally by then chief judge Dr John Lowndes. He upheld 17 of them, saying: 

"I have counselled and will continue to counsel Judge Borchers so as to ensure no recurrence of the relevant conduct." 

He stressed that: "any repetition of the conduct would amount to serious misconduct" (my emphasis). 

Since then the judge has been a repeat offender. In June 2017 he made national news for his treatment of a 13-year-old Aboriginal boy in the Tennant Creek Youth Justice Court. 

The boy was pleading guilty to several unlawful entry and stealing offences committed in Tennant Creek. 

Earlier that year his father had brutally killed his mother in the family home in the presence of his two sisters. 

His father was subsequently found guilty of murder and sentenced to life imprisonment. The boy, who had been doing well at his Alice Springs boarding school, absconded, returned to Tennant Creek, got into older and bad company, drank alcohol, took drugs, and committed the entry and stealing offences. 

His lawyer applied for bail to allow the boy to engage with local supervised mental health counselling, to stay in Tennant Creek with his remaining family and to attending the local school. To no avail. 

The judge in refusing bail said to him: 

"There has been a bit of a breakdown in your family; a significant breakdown. But you've duchessed it. That means you've taken advantage of it. You're out and about on the streets, because no one is really in a position to look after you ... 

... its quite clear that you and your family are not going to pick up the damages for what you've caused ... you don't know what a first world economy is, you don't know where money comes from, only that the government gives it out." 

That was a judicial officer speaking directly to a parentless 13-year-old Aboriginal boy whose mother had been killed by his father.

That behaviour became the subject of a second raft of complaints laid by CLANT and the Central Australian Aboriginal Legal Aid Service in July 2017. 

Again, they were dealt with internally by Chief Judge Dr Lowndes. His findings were issued in December 2017 in which he dismissed the complaint concerning the the 13-year-old boy in the Tennant Creek Youth Justice Court while upholding several of the other complaints. 

Judge Borchers was disciplined by being removed from cases in the Youth Justice Court in Alice Springs but otherwise he continued sitting as a judge.  

Supreme Court Chief Justice Michael Grant grasped the nettle in his speech for the opening of the legal year in 2018. 

He suggested a legislated model to deal with complaints which, following local vetting, would be dealt with on an agency basis by the NSW Judicial Commission. 

He said, and who could disagree: 

"Such a process would take advantage of that body's long established expertise in the field, while avoiding the conflicts of interest which would necessarily arise in a jurisdiction of this size." 

Two years later, on February 18, 2020, the government introduced a Bill establishing an NT Judicial Commission which is completely "onshore" - i.e. complaints handled by judicial officers and appointees from the territory. Chief Justice Grant's concerns about perceived conflicts have not been recognised.

Meanwhile, in the Alice Springs Local Court on March 12, 2019 Judge Borchers in sentencing an aboriginal man for assaulting his wife said: 

"She got a punch in the face and you dragged her through the house by her hair on the floor in a demeaning, degrading fashion. Just like a primitive person dragging his woman out of the cave ready to give her a further beating." 

On November 9, 2018, sitting in the Katherine Local Court Judge Borchers sentenced a 26-year-old Aboriginal woman for punching her partner once while drunk. 

It emerged during submissions that she was a mother with a nine-year-old son who was at the time being looked after by other members of her family. 

In response to that domestic arrangement, Borchers said in court: 

"One day we might read some literature, some important anthropological literature, we might learn something about what's called indigenous laissez-faire parenting. I invite you to do so, not that it will help you in your practice in any way, but it might get you to understand why it is that people abandon their children on such a regular basis." 

Then in Tennant Creek on April 12, 2019 while sentencing another aboriginal mother for breaching a condition of a restraining order Judge Borchers told her in court:  

"Yesterday probably was pension day, so you got your money from the government, abandoned your kids in that great indigenous fashion of abrogating your parental responsibility to another member of your family, and went off and got drunk ... Got the money from the government, straight down, buy grog, pour it down your throat, and the kids, well I don't know." 

Those matters became the subject of further complaints laid by CLANT in July 2019. They were handled internally by the new Chief Judge of the Local Court, Elizabeth Morris. 

In November 2019 she found that Judge Borchers' conduct was not judicial conduct warranting removal. Her conclusion was that: 

"Lapses in appropriate judicial demeanour and conduct falling short of the ideal do not qualify as judicial misconduct warranting removal. I do not consider that Judge Borchers behaviours disclosed in this and previous complaints constitutes judicial misconduct warranting removal." 

Aboriginal people in court are often told by judges that "there has to be consequences for your actions". No doubt Borchers gives that lecture to some of the indigenous defendants that he sentences - yet so far Judge Borchers has not faced significant consequences for his conduct.  

It's time for the attorney general to refer Judge Borchers to the NT assembly to determine whether he should be dismissed for incapacity or misbehaviour. 

The next sittings of the NT Parliament are March 24-26.  

John B. Lawrence SC, James Muirhead Chambers Darwin, is a former president of CLANT and the NT Bar Association