Aborigines and the Australian Justice System

The following post appeared on Blak and Black today under the title Aborigines and the Australian Justice System I thought it worth sharing with my followers.

For very many Aboriginal
Australians the phrase Australian justice system is an oxymoron. There are any
number of reasons, many of which are justified, why we as Aboriginal
Australians think of the Australian ‘just-us’ system as being exactly as it
says, a system that is just for us, which if you are an Aboriginal only serves
to further entrench your marginalization. The following exchange between a
Canberra based public prosecutor and a senior Canberra based public servant illustrates
the point well.
“You don’t have to worry about your little boong
mate Marky [the former Commissioner for ACT Revenue] suing you for fitting him
up. When I’m finished with him he’ll be in the gutter where he belongs with all
his other boong mates. You will be able to piss on him as you step over him on
your way to work” (Exchange
between ACT DPP Prosecutor[i] to ACT Department of Treasury
Official)
As
reprehensible and personally insulting to every Aboriginal Australian the
aforementioned comment is, it highlights a more sinister undertone within the
Australian psyche, that of systemic and institutionalised racism, my topic for
today.
Before I
venture into today’s topic, it is worth mentioning that the Prosecutor who
uttered the aforementioned words has worked as a prosecutor in a number of Australian
jurisdictions, in which capacity he would have come into contact with large
numbers of Aboriginal clients. Given that the role of the DPP is to ensure a
fair and unbiased trial for the defendant, there is prima face evidence that this Prosecutor has failed in that role,
when dealing with Aboriginal clients. As such, I call on all jurisdictions in
which this Prosecutor has worked to reopen all cases which he has been involved
in where the defendant was an Aboriginal Australian, with a view to giving each
convicted Aboriginal defendant, who had the aforementioned Prosecutor as their prosecutor
a fresh trial.
This being
said, many if not most racist attitudes are underpinned by systemic factors;
individual racist attitudes do not exist in a vacuum: they generally draw upon
collective or culturally embedded images, stereotypes and representations of
Aboriginal people. Individuals, particularly
those who are part of an institutionalised culture, such as the public service
or the police, may feel empowered in their racism because that may feel that
their behaviour is implicitly, if not officially, sanctioned within their
organisation. Tackling systemic and institutionalised racism requires a cultural
shift in the approach agencies take to Indigenous clients, one where
Aboriginality identity is not denied, ignored as irrelevant, or – worse still -
viewed as the problem when agencies deal with Aboriginal clients.
Unlike the
rest of Australia, in particular the Australian Capital Territory, Victoria has
mechanisms in place to monitor institutionalised practices and has created a
reform environment. Rates of Aboriginal over-representation are lower in
Victoria than in other jurisdictions with considerable efforts being made to
change agency practices and empower Aboriginal communities. The Aboriginal
Justice Forum, the RAJAC
system and linked process under the Aboriginal Justice Agreement, are a model
for both Indigenous involvement and inter-agency cooperation; as such they
constitute models of best practice for other jurisdictions to follow.
Similarly, the Indigenous Issues Unit in the Department of Justice plays an
invaluable role in sustaining the RAJAC process while ensuring that there is
coordination between community initiatives and broader justice policy. This linkage
is extremely important. So too is the linkage between justice policy and the ‘underlying
issues’ which have such a profound influence on life chances of Indigenous
people.
The current
situation in relation to Aboriginal over-representation in Australia’s ‘just-us’
system is a result of an array of historical and social factors, rooted in the
unique experiences of Aboriginal Australians, who have suffered over two
centuries of injustice, denial of cultural and genocide at the hands of an alien
culture imposed on us by a white and prejudiced colonising power. This has
resulted in a dynamic inter-play between criminal justice and social-structural
factors. Aboriginal people from whom I have taken statements were keen to point
out that many of the underlying causes of these social-structural factors – including
health, housing and employment – needed to be addressed before there would be
any far-reaching and sustainable reductions in rates of Aboriginal
overrepresentation in the criminal justice system. These can only be tackled
through improved forms of partnership between Aboriginal communities and all
levels of government, in an environment free of racial stereotypes and systemic
and institutionalised prejudice.
Mental
Health Issues in Aboriginal Communities
When
considering the impact that institutionalised racism has on Aboriginal
Australian’s and the long term implications of this for the socio-economic
outcomes for the Aboriginal community combined with the obvious flow-on effects
to justice policy, it is worth considering the real social cost of white
injustice for this discreet group within the wider Australian community.
A number of
times during my consultations with individual Aborigines and Aboriginal
organisations I was told that Aboriginal deaths in custody statistics are not a
good barometer of the health of Aborigines in the ‘just-us’ system. This is
because, in custody, there is significantly less opportunity for self-harm and
greater surveillance to prevent self-harm, “but the intent is often still
there.” Suicide, it was argued, may be displaced into other contexts and
settings. In the words of one respondent, a former prisioner:
Aboriginal
people still die in custody but it’s hidden - they suicide before they get to
court, or in the mental health system. Either that or they just become mentally
and psychologically dead, by dying inside.
Several Aboriginal
respondents to my request for statements in support of my proposed application
to the United Nations argued, in relation to Aboriginal deaths in custody, that
it is too restrictive to look at deaths in correctional facilities. Self-harm
in “kindred institutions of forced confinement[ii]”
such as the mental health system, as well as correctional facilities, should
also be considered as they are part of an overall context shaped by extreme marginalisation.
It follows that post-release suicide should also be counted; a view supported
by research showing a significant death rate amongst people serving community
sentences in Victoria[iii].
These views were coupled with a deeply held conviction that society itself is a
kind of prison.
Whites
don’t see that society is a prison for some Koori kids.
There was a
sombre and fatalistic recognition by some youths of the consequences of their
life-styles, life-styles that are the outcomes of over two centuries of marginalisation,
discrimination and abuse and the hands of white Australia and its ‘just-us’
system:
It goes
like this: paint – ganja – petrol – speed – pills - heroin – dead.
If white Australians were able to put their prejudices aside for just a
moment and consider the implications of what has been said above, namely that: “Whites
don’t see that society is a prison for some Koori kids” Australian society
as a whole would realise what this statement really means and the implications
it has for the reconciliation process.
Many young Aborigines
are subject to child protection as well as juvenile justice orders. There has
been some criticism that child protection workers “de-allocated” cases as soon as
there was involvement with juvenile justice. Juvenile Justice staff suggested that
this may be due, in part at least, to caseload pressures generated by mandatory
reporting. Whatever the reasons, the real losers of this process of “de-allocation”
are Aboriginal youth, or those Aboriginal youth who are most a risk of becoming
long term victims of white Australia’s ‘just-us’ system.
Best
practice Model
Victoria has
the lowest rate of remands in custody for young people in Australia. This appears
to be attributable to the general juvenile justice culture within the State and
also to the parameters of relevant legislation. For example, section 128 of the
Children and Young Persons Act 1989 (CYPA) requires cases to proceed by way of summons
“except in exceptional circumstances”; and section 129 limits remands in custody
to 21 days at any court appearance.
However, it
is central to the notion of systemic racism that even where general figures may
appear positive, they can obscure specific areas of concern.[iv]
During Blak and Blacks information gathering process, many Aborigines raised
concerns that remands were sometimes used by the police and the courts as a method
of “back door sentencing”; which appeared to be more prevalent with rural and
Aboriginal youth than with white metropolitan youth. Anecdotal evidence suggests
that while some Aboriginal youth spent the 3 weeks contemplated by the CYPA,
others had served much longer periods on remand. Respondents believed that this
type of “back door sentencing” was a form of punitive remand designed to “give
the community a break”. If bail is being used in this way, it is an improper
use of the system and is a form of racially motivated corruption by police and
the courts.
One of the
main focuses of Blak and Black’s research has been to try to understand the
forms and levels of systemic and institutionalised racism that operate within
the Australian ‘just-us’ system and public service, as opposed to the overt or
direct racism that we as Aborigines experience every day of our lives at the
hands of a so called free and democratic Australian society. Interestingly,
when Blak and Black began taking statements from younger Aborigines who had
just completed periods in detention, they immediately complained that they had been
subject to direct racism within the system. This included racist language from
police, which is an area of concern raised by Blak and Black on numerous occasions.
They also claimed that staff in detention facilities had used racist language
to them and gave examples of racially insensitive attitudes and behaviour.
How this
type of racism can be justified in a modern correctional service which has as
its primary objective ‘reintegration’ of offenders is beyond Blak and Black’s
understanding and points to the fact that the ‘just-us’ system is racist to the
core, which is just another way of saying that corruption rules in Australia’s ‘just-us’
system. The supposed objective of ‘reintegration’ is especially true of
juvenile justice, which has always placed a stronger focus on rehabilitation as
opposed to punishment. ‘Reintegration’ itself presupposes that the people were
‘integrated’ in the first place which is in itself an issue of building on
pre-existing resources. The questions of integration and building pre-existing
resources become somewhat problematic when dealing with people who are alienated
from both the black and white communities because of systemic injustice in the ‘just-us’
system.
This helps
to explain Aboriginal cynicism about the programs offered in detention.
Aborigines generally express the belief that these programmes fail to meet
their needs and are generally “boring”.
Aboriginal
youth particularly point to the fact that juvenile justice workers didn’t give them
enough support when detained in prison, or on release and believed that the
programs they were offered did not always fit their specific needs.
Juvenile
Justice Staff in turn complained that there are inadequacies post-release support
services, particularly in the country where such services are “thin on the
ground” and highly dispersed. ‘Reintegration’ was likewise hampered by a
shortage of educational opportunities for Aboriginal youth.
A number of
Aboriginal youth respondents to Blak and Black also reported that they were so
cut off from the Aboriginal community that it was not always possible to
reintegrate. They believed that they had been stigmatised in their local
community, many also stated that they had been involved in local programmes and
had run out of options. Furthermore, many Aboriginal youth said that they didn’t
want too much Aboriginal involvement: many from the city were involved in
street subcultures and didn’t want Aboriginal specific services. They don’t
self-identify as Aboriginal.
This self-denial
of culture on the part of Aboriginal youth is itself indicative of the success
of Australia’s programme of subtle genocide which aims at separating the
individual from their communities which in turn eventually destroy individual
communities and renders true the maxim of Terra
Nullius for all time. Naturally if the concept of Terra Nullius becomes fact in truth as well as in myth, then
Australia will have succeeded in achieving something that not even Nazi Germany
could achieve – the systematic and complete destruction of a culture in the
name of securing an invaders ‘right’ to peace and security in ‘their’ own land.

[i] The Director of Public
Prosecutions, Australian Capital Territory, is well aware of the name of the
individual prosecutor who uttered these overtly racist words. Mr Phillip Hart
provided that information to the Australian Federal Police and the ACT DPP in
2006 after he posted the comment on his site. To this date no action has been
taken by either the AFP or ACT DPP regarding these comments. Subsequent to
making these comments, the named Prosecutor has been involved in a number of
other trials involving Aboriginal Australians.
[ii] Wacquant L (2000) “The
new Peculiar Institution: On the prison as Surrogate
Ghetto.” Theoretical Criminology. 4.3.
[iii] Biles, Harding and
Walker, 1999
[iv] Morgan N (2002) ‘Going
Overboard? Debates and Developments in Mandatory
Sentencing, June 2000 to June 2002’, Criminal Law
Journal, vol 26, no 5, 293-312.