Systemic and Institutional Racism and Systemic Bias in the Australian justice system

While discussing the competing merits of Australia’s subtle forms of genocide it employs against its indigenous people versus Indonesia’s more direct and brutal methods it employs in West Papua with Pius the author of ALP corruption, a suicide in the AFP and death threats made against a three year old – Human Rights Australian style I was asked exactly what I mean by “subtle forms of genocide”. After giving this question some thought I believe that it is worth putting what exactly I mean by “subtle forms of genocide” on the public record.

Blak and Black’s argument at its most basic is that Australia uses the criminal justice system with its inherent institutional racism and systemic bias as a vehicle for implementing the most subtle and therefore insidious form of genocide imaginable. It is by hiding behind this thin veneer of due process and impartiality that Australia continues to escape world condemnation for its genocidal attitude to its indigenous people.

The most appropriate starting point for a discussion on racism, discrimination and the overrepresentation of Indigenous people in the criminal justice system is a clarification of the terms. Some reference to terminology is necessary to demonstrate why particular analytical phrases have been employed in the research. There has been considerable disagreement between criminologists as to the veracity of concepts such as systemic racism, and there has also been some lack of conceptual clarity regarding differences between notions such as systemic racism and systemic bias, they tend to be used interchangeably although they in fact refer to different processes.

The concept of systemic or institutional racism is used to describe situations where what appear to be ‘facially neutral’ laws, policies and practices operate in an uneven or unfair manner that is detrimental to Indigenous people. Or put more simply where “supposedly fair and universal criteria” become a means of maintaining asymmetric power relationships.

Systemic racism in this sense is not about whether individuals hold racist views but about the uneven impact of laws, policies or practices. Put another way, systemic racism can to some extent be measured by outcomes and results rather than intentions. Policies might not be racist in intent, but might have racist outcomes. It may be, for example, that innovations that are beneficial to the majority do not meet the needs of the minority. This may be the case when (even well intentioned reforms) are “difference blind” and fail to take account of cultural factors, leading to outcomes that reinforce, rather than reduce inequality: criminologists refer to these as the “unintended consequences” of intervention. The best way to understand this is, perhaps, through some examples and some questions/ issues:

Western Australia’s three strikes home burglary laws prescribe a minimum of 12 months detention / imprisonment for a third home burglary strike. In theory, the laws apply to all offenders but they have the greatest impact on juveniles (as most adults would have faced at least 12 months under normal sentencing principles). 80% of all the children who have been caught are Indigenous; of those aged under 14, 100% are Indigenous; and a disproportionate number are from regional and remote areas. Capturing these groups may not have been the intention – indeed the laws were enacted against a backdrop of concern about urban “home invasion”, not stealing for food in remote outback towns. The Northern Territory abolished its Mandatory Sentencing regime in 2001, due, in large part, to concerns about its impact on Indigenous imprisonment. Sentencing practices which remove judicial discretion tend to discriminate against minority, marginal and Indigenous peoples .

Bail is under-researched but is an important area for analysis. Across Australia, imprisonment rates are rising and the remand population is generally rising faster than the sentenced prisoner population. Consideration is needed as to whether tighter bail practices (often prescribed in legislation) and requirements such as sureties operate in a fair and even manner.

Prison accommodation levels and security ratings: there is a pattern in much of Australia of Indigenous prisoners being housed in higher security prisons; of not progressing to minimum security; and of being in lower levels of accommodation and employment within the prison. This may not augur well for parole decisions and does not allow prisoners to undertake work release or home leaves.

Parole criteria and treatment programs: parole authorities and others often place weight on whether a person has ‘addressed his/her offending behaviour’ by undertaking a ‘treatment program’ in prison (or, perhaps, that they will undertake a program in the community). Completion of such programs is said to reduce the person’s risk of further offending. In many parts of Australia, Indigenous offenders complain that such programs are culturally inappropriate or problematic (especially in the context of sexual offending): they tend to be based on a psychological model and to be delivered in a group / classroom setting, often by white female presenters.

Another issue is the requirement to submit a ‘viable parole plan’, especially given the issues that surround Aboriginal housing.

Supervision of Community Orders: Indigenous offenders tend to breach community based sentences and parole by non-compliance (as well as by further offending) at a higher rate than non-Indigenous offenders. Indigenous rates of compliance remain a concern, suggesting that cultural / family / contextual reasons for non-compliance should be considered.

Policing practices such as the use of powers to ask people to ‘move on’ or to request name and address. (And policies around the policing of public space such as Western Australia’s ‘Northbridge curfew’ in which, under a Government initiative, children are removed from the streets of Northbridge after 9.00 pm by the police. Around 90% of the children are Aboriginal). There have been tendencies to criminalise Indigenous people’s use of “public space”, particularly young people, not because of overt criminal behaviour but because they do not conform to non-Aboriginal notions public propriety. A number of innovations, such the Children (Parental Responsibility) Act, NSW have been criticised on the grounds that they target Indigenous youth in public and provide a mechanism for social exclusion. Similarly, Western Australia’s “Northbridge curfew” has been criticised because it tends to target Indigenous youth. There are no similar policies in operation in Victoria, although Koori people in country areas expressed concerns that some exclusionary policing strategies operated informally at a local level.

Drug Courts are an important innovation and, in theory, provide a diversionary, treatment-oriented approach that is designed to reduce recidivism. However, depending on the model that is adopted, they may not reach Indigenous clients. Western Australia’s Drug Court has had only a handful of Indigenous clients. There are many reasons for this, but they include the lack of sufficient Aboriginal-specific programs, and the fact that a major form of monitoring is through urinalysis testing, which is simply not relevant to problems of solvent and alcohol abuse.

Cautioning practices: there is strong evidence in some jurisdictions, and some evidence in Victoria (to be discussed in a later post), to suggest that Aboriginal people are less likely to be cautioned than non-Aboriginal people are.

Prior record: is a factor that assumes significance at a number of stages, including decisions about cautioning, choice of sentence, length of sentence, eligibility for parole, risk assessments, parole decisions and decisions about supervision requirements upon release. Given that Aboriginal people tend to have greater contact with the justice system, it is worth considering whether the cumulative weight that is placed on prior record is a factor of concern.

Fines and Fine Enforcement: there is clear evidence in some parts of Australia that fines remain problematic for Indigenous people despite the introduction of new forms of enforcement. For example, in New South Wales and Western Australia, the suspension of a driver’s licence generates problems; as does the seizure of assets. Thus, whilst Western Australia’s new fine enforcement laws in the late-1990s seemed to lead to a drop in short prison sentences, we have more recently seen an increase in the number of Aboriginal women in prison for fine default.

Correctional Policies: there is abundant evidence to suggest that Aboriginal prisoners are often disadvantaged by policies around funeral attendance. Non-Aboriginal definitions of “next of kin” fail to take into account Aboriginal obligations. Aboriginal people have been denied rights to attend funerals of significant people when they cannot demonstrate a next of kin connection.

As mentioned above, systemic racism is a difficult concept to define and a controversial area for analysis. There has also been recent debate on the extent to which it is a significant factor in terms of Aboriginal over-representation in the Australian ‘just-us’ system an issue Blak and Black will discuss in more detail in the coming weeks. It is Blak and Black’s view that systemic racism is a factor of established significance in many Australian jurisdictions, but that the precise nature and extent of the problem differs between jurisdictions.

However, it is necessary to add one caveat before moving on to examine the issues in detail. While systemic racism remains the central focus of Blak and Blacks research, it needs stressing that many, indeed almost without exception all of the Aboriginal people interviewed by Blak and Black as part of the process of identifying how institutional racism and systemic bias operate in the Australian context raised issues and experiences relating to direct and overt as well as more subtle and insidious forms of racism. Aboriginal people were clearly, and vocally, outraged by what they saw as racist behaviour, language and attitudes by individuals. The limitation of the focus on structural processes is that it can in some instances absolve individuals from responsibility for their words and deeds. This is unacceptable; individuals who are prepared to express outrageous and unadulterated racist invective should not be allowed to hide behind institutional walls. Those who allow this to occur are complicit in the very racism that they preach against.

In my next post I will consider institutional racism and systemic bias in the Australia’s criminal justice system.