Aborigines and the Australian Justice System

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 to ACT Department of Treasury Official)

As reprehensible and personally insulting to every Aboriginal Australian as 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 individual 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 they 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 Aboriginal 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 culture 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 socio-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 ” 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 . 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 lifestyles, lifestyles that are the outcomes of over two centuries of marginalisation, discrimination and abuse at 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. During Blak and Black’s 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 three 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 in 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 and in turn eventually destroys 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.